SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
(Mark One)
(X) ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934 FOR THE FISCAL YEAR ENDED SEPTEMBER 30, 1997.
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
COMMISSION FILE NUMBER 0-9514
ANDREW CORPORATION
(Exact name of Registrant as specified in its charter)
DELAWARE 36-2092797
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) identification No.)
10500 W. 153RD STREET, ORLAND PARK, ILLINOIS 60462
(Address of principal executive offices and zip code)
(708) 349-3300
(Registrant's telephone number, including area code)
SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT: NONE
SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
TITLE OF EACH CLASS
Common Stock, $.01 par value
Common Stock Purchase Rights
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 as 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 of
this Form 10-K. (X)
The aggregate market value of voting stock held by non-affiliates of the
Registrant as of December 15, 1997 was $2,122,964,352. The number of outstanding
shares of the Registrant's common stock as of that date was 88,456,848.
DOCUMENTS INCORPORATED BY REFERENCE:
Portions of the Registrant's Annual Report to Stockholders for the year ended
September 30, 1997 are incorporated by reference into Parts I and II.
Portions of the Proxy Statement for the annual stockholders' meeting to be held,
February 10, 1998 are incorporated by reference into Part III.
<PAGE>
PART I
ITEM 1-BUSINESS
GENERAL
Andrew Corporation ("Andrew" or the "Company") was reincorporated in
Delaware in 1987. The Company previously was incorporated in Illinois in 1947 as
the successor to a partnership founded in 1937. Its executive offices are
located at 10500 West 153rd Street, Orland Park, Illinois, 60462, which is
approximately 25 miles southwest of Chicago's loop. Unless otherwise indicated
by the context, all references herein to Andrew include Andrew Corporation and
its subsidiaries.
Andrew is a multinational supplier of communications products and systems
to worldwide commercial, industrial, governmental and military customers. Its
principal products include coaxial cables, microwave antennas for point-to-point
communication systems, special purpose antennas for commercial, government and
military end use, antennas and complete earth stations for satellite
communication systems, cellular antenna products, cellular telephone
accessories, electronic radar systems, communication reconnaissance systems, and
related ancillary items and services. These products are frequently sold as
integrated systems rather than as separate components. Andrew conducts
manufacturing operations, primarily from eight locations in the United States
and from six locations in other countries. Sales by non-U.S. operations and
export sales from U.S. operations accounted for approximately 48% of Andrew's
net sales in 1997 and 1996 and 45% in 1995.
In June 1997, the Company decided to exit certain businesses whose
performance had not met growth expectations. The Company discontinued the
network products business, significantly restructured its European wireless
products business and phased out of the fiber optic sensors and global messaging
development activities. These actions resulted in total after-tax charges to net
income of $22.8 million or $.25 per share. While these steps negatively impacted
1997 results, they enable the company to focus on the growing wireless markets
and to further enhance long-term growth opportunities.
During fiscal 1996, Andrew completed three acquisitions that provided new
products and improved accessibility to expanding markets. In December 1995, the
Company purchased a 51% interest in Mapra Industria e Comerico Ltda. and Gerbo
Telecommunicacoes e Servicos Ltda., located in Brazil. Mapra and Gerbo
manufacture, distribute, and sell antennas, waveguides and towers and provide
installation services. Andrew formed a cable manufacturing company with Mapra
and Gerbo in which Andrew holds a 70% interest. In March 1996, the Company
completed its acquisition of The Antenna Company, a manufacturer and distributor
of wireless telephone antennas and accessories for mobile applications. In June
1996, the Company purchased an 80% interest in Satcom Systems, Pty. Ltd., a
distributor of commercial products, located in South Africa.
During fiscal 1997 the Company operated in a dominant industry segment.
Andrew supplies coaxial cable and antenna system equipment to radio equipment
companies, dealers and distributors. Andrew also supplies cellular antenna
products and cellular phone accessories through retail distribution channels of
cellular service providers.The Company also supplies specialized antenna
systems, electronic radar systems,communication reconnaissance systems,
standard antennas, and fully integrated systems to various United States
government agencies and friendly foreign governments.
<PAGE>
PRODUCTS AND SERVICES
The following table sets forth net sales and percentages of total net
sales represented by Andrew's principal products during the last three years:
<TABLE>
<CAPTION>
Year Ended September 30
1997 1996 1995
-------------- -------------- --------------
<S> <C> <C> <C> <C> <C> <C>
(Dollars in thousands)
Coaxial Cable Systems and Bulk
Cables $467,774 54% $415,633 54% $324,790 52%
Other Products and Services 183,557 21 133,645 18 129,022 20
Microwave Antenna Systems 153,905 18 153,231 20 122,576 20
Wireless Accessories 64,239 7 63,498 8 48,355 8
-------- ---- -------- ---- -------- ----
$869,475 100% $766,007 100% $624,743 100%
======== ==== ======== ==== ======== ====
</TABLE>
PRINCIPAL PRODUCTS
Coaxial Cable Systems and Bulk Cables:
Coaxial cable is a two-conductor, radio frequency transmission line with
the smaller of the two conductors centrally located inside the larger, tubular
conductor. It is principally used to carry radio frequency signals at
frequencies up to 2 GHz.
Waveguides are tubular conductors, the dimensions and manufacturing
tolerances of which are related to operating frequency. Waveguides find greatest
application at frequencies above 2 GHz, although they are also used in UHF-TV
broadcasting at frequencies in hundreds of megahertz. Andrew manufactures
waveguides with rectangular, circular and elliptical cross-sections. Most of
Andrew's waveguides are sold as part of its antenna systems.
In addition to bulk cable, coaxial cable systems include: cable connectors,
accessories and assemblies. Coaxial cable connectors attach to cable and
facilitate transmission line attachment to the antennas and radio equipment.
Accessories protect and facilitate installation of coaxial cable on the tower
and into the equipment building. Accessories include lightning surge
protectors, hangers, adaptors and grounding kits. Together connectors and
assemblies combine to form coaxial cable assemblies.
Andrew sells its semi-flexible cables, connectors and accessories and
waveguides under the trademark HELIAX(R).
Other Products and Services:
This group includes special application antennas, support products and
various electronics.
Andrew manufactures and sells several types and configurations of
special application antennas. Applications include cellular systems, navigation,
FM and television broadcasting, multipoint distribution services and
instructional television. As with microwave antennas, Andrew considers sales of
special antennas and other various components used in the cellular market
(equipment buildings and towers) and the installation of these components to be
part of a "cellular system."
Support products include equipment buildings, which provide a controlled
environment for radio and other equipment, while towers provide support and
elevation for antennas.
<PAGE>
Earth station antenna systems manufactured by Andrew are used at earth
terminals to receive signals from, and transmit signals to, communication
satellites in equatorial orbit. System elements include an antenna, from 6 to 40
feet in diameter, and may also include electronic controllers, waveguides,
polarizers, combiners, special mounting features, motor drives, position
indicators, transmitters and receivers. Andrew earth station antenna systems in
all sizes are used in various countries to broadcast and transmit programs, both
to CATV operators and to VHF or UHF broadcast stations, as well as for the long
distance transmission of conventional telecommunications traffic.
The Company also designs and installs its proprietary distributed
communication systems. These systems permit in-building and enclosed area access
for all types of wireless communications.
Andrew manufactures electronic scanning and communication receiver systems,
which are designed to search and monitor the electromagnetic spectrum from 20
MHz to 40 GHz. These systems are purchased primarily for intelligence gathering
in strategic surveillance operations that emphasize highly sensitive reception
of weak signals as well as accuracy of signal analysis data. The Company's
highly automated receiver systems are subsystems that are incorporated into
fully-integrated systems that, in addition to the Company's receiving and
analyzing equipment, include antennas and other equipment necessary to carry out
the overall electronic reconnaissance operation.
The Company is also engaged in the supply of fully integrated electronic
surveillance systems, both for military radar reconnaissance and for
non-military communications monitoring. These surveillance systems are custom
designed by the Company's engineering staff to meet customer requirements.
Microwave Antenna Systems:
A "microwave antenna system," as this term is used by Andrew, consists of
one or more microwave antennas, waveguides or coaxial cables connecting antennas
to transmitters or receivers, a tower to support the antennas, an equipment
shelter to house transmitters and receivers, various ancillary items and field
installation services. If sold without a supporting tower, equipment shelter or
field installation, microwave antennas with their connecting cables or
waveguides are still considered by Andrew to be "microwave antenna systems."
Land-based microwave radio networks are commonly used by telecommunications
companies for intercity telephone, telex, video and data transmission. They are
also used for more specialized purposes by pipeline companies, electric
utilities and railroads.
Wireless Accessories:
Andrew manufactures and distributes accessories for personal communication
systems, cellular handsets and paging devices. Portable antennas, batteries,
battery chargers, paging accessories, hands free kits and various other wireless
accessories are included in this group. The acquisition of The Antenna Company
increased Andrew's product offering and opened domestic distribution channels.
INTERNATIONAL ACTIVITIES
Andrew's international operations represent a substantial portion of its
overall operating results and asset base. Manufacturing facilities are located
in Canada, Australia, Scotland, Brazil, Russia, and China. Andrew's plants in
the United States also ship significant amounts of manufactured goods to export
markets. In Russia and Ukraine, Andrew participates in joint ventures that
operate fiber optic telecommunication networks.
<PAGE>
During fiscal 1997 sales of products exported from the United States or
manufactured abroad were $414,749,000 or 48% of total sales compared with
$366,324,000, or 48% of total sales in fiscal 1996 and $282,621,000, or 45% of
total sales in fiscal 1995. Exports from the United States amounted to
$105,147,000 in fiscal 1997, $108,675,000 in fiscal 1996, and $101,305,000 in
fiscal 1995.
Sales and net income from continuing operations on a country-by-country
basis can vary considerably year to year. Further information on Andrew's
international operations is contained in the note "Geographic Area Information"
to Consolidated Financial Statements included on page 30 of the 1997 Annual
Report to Stockholders, incorporated herein by reference.
Andrew's international operations are subject to a number of risks
including currency fluctuations, changes in foreign governments and their
policies, and expropriation or requirements of local or shared ownership.
Andrew believes that the geographic dispersion of its sales and assets tends to
mitigate these risks.
MARKETING AND DISTRIBUTION
Sales engineering functions, including product application assistance,
are performed by a staff of highly trained applications engineers located at
each manufacturing facility. In addition, field sales engineers are located at
or near Atlanta, Dallas, Los Angeles, Miami, New York, San Francisco,
Washington, D.C., Essen and Munich (Germany), Hong Kong, Johannesburg (South
Africa), London (England), Madrid (Spain), Mexico City (Mexico), Milan (Italy),
Moscow (Russia), Paris (France), Sorocaba (Brazil), Suzhou (China), Tokyo
(Japan) and Zurich (Switzerland). Unlike most of its competitors, Andrew uses
its own sales and sales engineering staffs to service its principal markets, but
follows the traditional practice of using commissioned sales agents in countries
with modest sales potential.
Approximately one-half of Andrew's products are sold directly to end
users. Most of the remainder is sold to radio equipment companies which install
Andrew's products as part of a total system, with the balance being sold through
dealers and distributors. Small or medium-size orders are normally shipped from
inventory. Delivery schedules on larger orders are negotiated, but seldom exceed
five months. Andrew's sales are principally standard, proprietary items although
unique specifications or features are incorporated for special order situations.
Because most of Andrew's business is derived from large telecommunications
system operators and the radio equipment manufacturers who supply this industry,
Andrew has tailored its business strategy to serve the needs of technically
sophisticated buyers. In particular, Andrew has emphasized the compatibility of
antennas, transmission lines and related components in order to optimize their
performance as an integrated subsystem.
The Company also sells mobile cellular products such as antennas and
cellular telephone accessories. These products are sold primarily through the
retail distribution channels of cellular service providers ("Carriers"). Mobile
cellular products are also sold to distributors who then resell these products
to dealers and cellular carriers.
<PAGE>
MAJOR CUSTOMERS
Andrew serves more than 6,000 customers in more than 170 countries. In
fiscal 1997, aggregate sales to the ten largest customers accounted for 31% of
total consolidated sales compared to 27% in 1996 and 28% in 1995. No single
customer has accounted for over 10% of consolidated annual sales in any of the
last three years.
MANUFACTURING AND RAW MATERIALS
Andrew generally develops, designs, fabricates, manufactures and assembles
the products it sells. Cable and waveguide products are produced at plants in
Illinois, Brazil, Scotland and China. Microwave and earth station antennas are
manufactured in Canada, Texas and Australia. Self-supporting and guyed towers
are also manufactured in Texas. Equipment shelters are manufactured in Georgia
and California. Wireless antennas and accessories for mobile applications are
manufactured in Illinois. Andrew's defense electronic products are manufactured
in plants located in Texas. The Company's products are manufactured from both
standard components and parts that are built to the Company's specifications by
other manufacturers. A large number of the Company's products contain multiple
microprocessors for which proprietary machine readable software is designed by
the Company's engineers and technicians.
Andrew considers its sources of supply for all raw materials to be adequate
and is not dependent upon any single supplier for a significant portion of
materials used in its products.
RESEARCH AND DEVELOPMENT
Andrew believes that the successful marketing of its products depends upon
its research, engineering and production skills. Research and development
activities are undertaken for new product development and for product and
manufacturing process improvement. In fiscal 1997, 1996 and 1995, Andrew spent
$41,076,000, $29,624,000, and $21,041,000, respectively on research and
development activities.
Andrew holds approximately 320 active patents expiring at various times
between 1998 and 2015, relating to its products and attempts to obtain patent
protection for significant developments whenever possible. The Company believes
that, while patents in the aggregate are important to its business, the loss of
any individual patent would not have a material adverse effect on its
operations.
COMPETITION
Many large manufacturers of electrical or radio equipment, some of which
have substantially greater financial resources than Andrew, compete with a
portion of Andrew's antenna systems equipment, wireless products and coaxial
cable product lines. In addition, there are a number of small independent
companies that compete with portions of these product lines. Andrew has
traditionally focused on specific specialized fields within the marketplace that
require sophisticated technology and support services. Andrew competes
principally on the basis of product quality, service and continual technological
enhancement of its products.
There are numerous manufacturers of electronic radar systems, communication
reconnaissance systems and specialized antenna systems that supply their
equipment to United States government agencies and friendly foreign governments.
There is substantial competition within the market and the Company is not a
major competitor. Due to fixed-price contracts and pre-defined contract
specifications prevalent within this market, the Company competes primarily on
the basis of its ability to provide state-of-the-art solutions in this
technologically demanding marketplace while maintaining its competitive pricing.
<PAGE>
BACKLOG AND SEASONALITY
The following table sets forth the Company's backlog of orders believed to
be firm and due to ship both within the next year and beyond (government orders
included herein are funded orders):
<TABLE>
<CAPTION>
Orders to be Shipped as of September 30
----------------------------------------
(Dollars in thousands)
1997 1996
-------- --------
<S> <C> <C>
Within 12 months $132,610 $152,205
After 12 months 5,950 14,756
-------- --------
$138,560 $166,961
======== ========
</TABLE>
Due to variability of shipments under large contracts, customers' seasonal
installation considerations, variations in product mix and in profitability of
individual orders, the Company can experience wide quarterly fluctuations in net
sales and income. These variations can be expected to continue in the future.
Consequently, it is more meaningful to focus on annual rather than interim
results.
ENVIRONMENT
The Company engages in a variety of activities to comply with various
federal, state and local laws and regulations involving the protection of the
environment. Compliance with such laws and regulations does not currently have a
significant effect on the Company's capital expenditures, earnings, or
competitive position. In addition, the Company has no knowledge of any
environmental condition that might individually or in the aggregate have a
material adverse effect on the Company's financial condition.
EMPLOYEES
At September 30, l997, Andrew had 4,227 employees, 3,042 of whom were
located in the United States. None of Andrew's employees are subject to
collective bargaining agreements. As a matter of policy, Andrew seeks to
maintain good relations with employees at all locations and believes that such
relations are good.
REGULATION
Andrew is not directly regulated by any governmental agency in the United
States. Most of its customers and the telecommunications industry generally, are
subject to regulation by the Federal Communications Commission (the "FCC"). The
FCC controls the allocation of transmission frequencies and the performance
characteristics of earth station antennas. As a result of these controls,
Andrew's antenna design specifications must be conformed on an ongoing basis to
meet FCC requirements. This regulation has not adversely affected Andrew's
operations.
Outside of the United States, where many of Andrew's customers are
government owned and operated entities, changes in government economic policy
and communications regulation have affected in the past, and may be expected to
affect in the future, the volume of Andrew's non-U.S. business. However, the
effect of regulation in countries other than the U.S. in which Andrew does
business has generally not been detrimental to Andrew's non-U.S. operations
taken as a whole.
<PAGE>
GOVERNMENT CONTRACTS
Andrew performs work for the United States Government primarily under
fixed-price prime contracts and subcontracts. Under fixed-price contracts,
Andrew realizes any benefit or detriment occasioned by lower or higher costs of
performance. Total direct and indirect sales to agencies of the United States
Government, which are generally fixed-price contracts, were $17,254,000 in 1997,
$18,250,000 in 1996, and $22,337,000 in 1995. These contracts are typically less
than 12 months in duration.
Andrew, in common with other companies that derive a portion of their
revenues from the United States Government, is subject to certain basic risks,
including rapidly changing technologies, changes in levels of defense spending,
and possible cost overruns. Recognition of profits is based upon estimates of
final performance that may change as contracts progress. Contract prices and
costs incurred are subject to Government Procurement Regulations. Costs may be
questioned by the Government and are subject to disallowance.
All United States Government contracts contain a provision that they may be
terminated at any time for the convenience of the Government. In such event, the
contractor is entitled to recover allowable costs plus any profits earned to the
date of termination.
ITEM 2-PROPERTIES
Andrew has fourteen manufacturing facilities, forty engineering and sales
administration locations and sixteen distribution facilities. All are equipped
with appropriate office space. Andrew's executive offices are located at the
facility in Orland Park, Illinois. The following table sets forth certain
information regarding significant facilities:
<TABLE>
<CAPTION>
Approximate
floor area in
Location square feet Owned/Leased
- ---------- ------------- ------------
<S> <C> <C>
Orland Park, Illinois 571,000 Owned
Addison, Illinois 201,000 Leased
Denton, Texas 173,000 Owned
Newnan, Georgia 110,000 Owned
Garland, Texas 88,000 Owned
Richardson, Texas 56,000 Leased
Tinley Park, Illinois 55,000 Leased
Sacramento, California 54,000 Leased
---------
U.S. sub-total 1,308,000
Sorocaba, Sao Paulo, Brazil 167,000 Owned
Lochgelly, Fife, United Kingdom 167,000 Owned/Leased
Campbellfield, Victoria, Australia 110,000 Owned
Whitby, Ontario, Canada 92,000 Owned
---------
Non-U.S. sub-total 536,000
---------
TOTAL 1,844,000
=========
<FN>
The Company's properties are in good condition and are suitable for the purposes
for which they are used.
</FN>
</TABLE>
<PAGE>
Andrew owns a total of 664 acres of land. Of this total, 565 acres are
unimproved, including 181 acres in Orland Park, Illinois, 137 acres in Floyd,
Texas, l43 acres in Denton, Texas, and 98 acres in Ashburn, Ontario, Canada.
Andrew also leases sales offices and facilities in the United States and in
thirteen countries outside the United States.
ITEM 3-LEGAL PROCEEDINGS
Andrew is not involved in any pending legal proceedings that are expected
to have a materially adverse effect on its financial position, nor is it aware
of any proceedings of this nature or relating to the protection of the
environment contemplated by governmental authorities.
ITEM 4-SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
There were no matters that required a vote of security holders during the
three months ended September 30, l997.
PART II
ITEM 5- MARKET FOR THE REGISTRANT'S COMMON STOCK AND RELATED STOCKHOLDER MATTERS
The Company's common stock is traded over-the-counter on the "Nasdaq" Stock
Market.
The Company had 5,480 holders of common stock of record at December 15,
1997.
Information concerning the Company's stock price during the years ended
September 30, l997 and 1996 is incorporated herein by reference from Andrew's
l997 Annual Report to Stockholders, page 31. All prices represent high and low
closing prices as reported by Nasdaq.
It is the present practice of Andrew's Board of Directors to retain
earnings in the business to finance the Company's operations and investments and
the Company does not anticipate payment of cash dividends in the foreseeable
future.
Long-term debt agreements include restrictive covenants that, among other
things, restrict dividend payments. At September 30, l997, $356,707,000 was not
restricted for purposes of such payments.
ITEM 6-SELECTED FINANCIAL DATA
Selected financial data for the last five fiscal years is incorporated
herein by reference to the l997 Annual Report to Stockholders, pages 34 and 35.
ITEM 7- MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
Information concerning this item is incorporated herein by reference from
the l997 Annual Report to Stockholders, pages 13 through 16.
ITEM 8-FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The Consolidated Financial Statements of the Company, Notes to Consolidated
Financial Statements, Selected Quarterly Financial Information, and the report
thereon of the independent auditors are incorporated herein by reference to the
1997 Annual Report to Stockholders, pages 17 through 32.
<PAGE>
ITEM 9-CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL
DISCLOSURES
None
PART III
ITEM 10-DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
Information concerning directors and executive officers of the Registrant
is incorporated herein by reference from the Company's l997 Proxy Statement
under the captions "Election of Directors" and "Executive Officers."
ITEM 11-EXECUTIVE COMPENSATION
Information concerning management compensation is incorporated herein by
reference from the Company's l997 Proxy Statement under the caption
"Executive Compensation."
ITEM 12-SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
Information concerning security ownership of certain beneficial owners and
management is incorporated herein by reference from the Company's l997 Proxy
Statement under the caption "Security Ownership."
ITEM 13-CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Information concerning certain relationships and related transactions is
incorporated herein by reference from the Company's 1997 Proxy Statement under
the caption "Security Ownership."
PART IV
ITEM 14-EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a) The following consolidated financial statements of Andrew
Corporation and subsidiaries, included in the l997 Annual Report to
Stockholders, are incorporated by reference in Item 8 above:
Consolidated Statements of Income
years ended September 30, l997, 1996 and l995............page 17
Consolidated Balance Sheets
September 30, l997 and 1996......................pages 18 and 19
Consolidated Statements of Cash Flows
years ended September 30, l997, l996 and l995............page 20
Consolidated Statements of Stockholders' Equity
years ended September 30, l997, 1996 and l995............page 21
Notes to Consolidated Financial Statements......pages 22 through 31
Selected Quarterly Financial Information......................page 31
Report of Independent Auditors................................page 32
ITEM 14 CONT.
<PAGE>
<TABLE>
(3) EXHIBIT INDEX:
<CAPTION>
Exhibit No. Description Reference
---------- ----------- ---------
<S> <C> <C>
3.1(i) Certificate of Incorporation Filed as Exhibit 3.1(i) to Form 10-K for fiscal year ended
September 30, 1994 and incorporated herein by reference.
3.1(ii) By-Laws of Registrant Filed as Exhibit 3.1(ii) to Form 10-K for fiscal year ended
September 30, 1994 and incorporated herein by reference.
4.(a) Note Agreement dated Filed as Exhibit 4(a) to Form 10-K for fiscal year ended
September 1, 1990 September 30, 1990 and incorporated herein by reference.
4.(a)a First Amendment to Note Filed as Exhibit 4(a)a to Form 10-K for fiscal year ended
Agreement dated September 30, 1992 and incorporated herein by reference.
September 1, 1990
4.(b) Stockholder Rights Agreement Filed under Item 5 of Form 8-K dated November 14, 1996
dated November 14, 1996 and incorporated herein by reference.
10.(a) Executive Severance Benefit Plan Filed as Exhibit 10(a) to Form 10-Q for fiscal quarter ended
(i) Agreement with Floyd L. English June 30, 1996 and incorporated herein by reference.
(ii) Agreement with Charles R. Nicholas
10.(a)a Executive Severance Benefit Plan Filed as Exhibit 10(a)a to Form 10-K for fiscal year ended
(i) Agreement with Thomas E. Charlton September 30, 1993 and incorporated herein by reference.
(ii) Agreement with John B. Scott
10.(a)b Executive Severance Benefit Plan Filed as Exhibit 10(a)b to Form 10-Q for fiscal quarter ended
(i) Agreement with William B. Currer June 30, 1996 and incorporated herein by reference.
10.(b) Management Incentive Plan Filed as Exhibit 10(c) to Form 10-K for fiscal year ended
dated February 4, 1988. September 30, 1993 and incorporated herein by reference.
10.(c) Non-employee Directors' Filed as Exhibit 10(d) to Form 10-K for fiscal year ended
Stock Option Plan dated September 30, 1993 and incorporated herein by reference.
February 4, 1988.
10.(d) Credit Agreement dated as of Filed as Exhibit 10(e) to Form 10-K for fiscal year ended
June 16, 1993. September 30, 1993 and incorporated herein by reference.
10.(d)a First Amendment to Credit Filed as Exhibit 10(d)a to Form 10-K for fiscal year ended
Agreement dated June 16, 1993. September 30, 1995 and incorporated herein by reference.
10.(d)b Second Amendment to Credit Filed as Exhibit 10(d)b to Form 10-K for fiscal year ended
Agreement dated June 16, 1993. September 30, 1995 and incorporated herein by reference.
10.(d)c Third Amendment to Credit Filed as Exhibit 10(d)c to Form 10-Q for fiscal quarter ended
Agreement dated June 16, 1993. June 30, 1996 and incorporated herein by reference.
10.(d)d Guaranty dated as of Filed as Exhibit 10(d)d to Form 10-Q for fiscal quarter ended
April 11, 1996. June 30, 1996 and incorporated herein by reference.
10.(d)e Replacement Note dated as of Filed as Exhibit 10(d)e to Form 10-Q for fiscal quarter ended
April 8, 1996. June 30, 1996 and incorporated herein by reference.
10.(e) 1994 Employee Stock Purchase Filed with Proxy statement in connection with
Plan Annual Meeting held February 2, 1994.
10.(f) Credit Agreement dated as of
November 1, 1997
11 Computation of Earnings
per Share
l3 l997 Annual Report to Those portions of the 1997 Annual Report to Shareholders
Stockholders expressly incorporated herein by reference.
21 List of Significant Subsidiaries
22 Proxy Statement in connection
with Annual Meeting to be held Filed December 19, 1997 and incorporated herein by
on February 10, 1998 reference.
23 Consent of Independent Auditors
27 Financial Data Schedules
99.(a) Description of Common stock
</TABLE>
(b) Reports on Form 8-K
No reports on Form 8-K were filed during the quarter ended September
30, 1997.
<PAGE>
REPORT OF INDEPENDENT AUDITORS
To the Stockholders and Board of Directors
Andrew Corporation
We have audited the consolidated financial statements of Andrew Corporation and
subsidiaries listed in Item 14 (a) of the annual report on Form 10-K of Andrew
Corporation for the year ended September 30, 1997. These financial statements
are the responsibility of the Company's management. Our responsibility is to
express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present
fairly, in all material respects, the consolidated financial position of Andrew
Corporation and subsidiaries at September 30, 1997 and 1996, and the
consolidated results of their operations and their cash flows for each of the
three years in the period ended September 30, 1997 in conformity with generally
accepted accounting principles.
/s/ Ernst & Young LLP
Chicago, Illinois
October 24, 1997
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the Registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized, on December 23, 1997.
Andrew Corporation
By \s\ Floyd L. English
----------------------------------------
Floyd L. English
Chairman, President, and
Chief Executive Officer
By \s\ Charles R. Nicholas
----------------------------------------
Charles R. Nicholas
Executive Vice President and
Chief Financial Officer
By \s\ Gregory F. Maruszak
----------------------------------------
Gregory F. Maruszak
Vice President and Controller
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below on December 23, 1997, by the following persons
on behalf of the Registrant in the capacities indicated.
\s\ John G. Bollinger \s\ Jere D. Fluno
--------------------- ---------------------
John G. Bollinger Jere D. Fluno
Director Director
\s\ Jon L. Boyes \s\ Ormand J. Wade
--------------------- ---------------------
Jon L. Boyes Ormand J. Wade
Director Director
\s\ Kenneth J. Douglas
---------------------
Kenneth J. Douglas
Director
<PAGE>
<TABLE>
EXHIBIT INDEX
<CAPTION>
EXHIBIT NO. DESCRIPTION
- -------------- ---------------
<S> <C>
10.(f) Credit Agreement dated as of November 1, 1997
11 Computation of Earnings per Share
13 Portions of 1997 Annual Report to Shareholders
Incorporated by Reference
21 List of Significant Subsidiaries
23 Consent of Independent Auditors
27.1 Article 5 FDS for 09-30-97
27.2 Restated Article 5 FDS for 09-30-96
27.3 Restated Article 5 FDS for 09-30-95
99.(a) Description of Common Stock
</TABLE>
AMENDED AND RESTATED CREDIT AGREEMENT,
dated as of November 1, 1997
among
ANDREW CORPORATION and
DESIGNATED SUBSIDIARIES OF ANDREW CORPORATION,
as Borrowers,
and
CERTAIN COMMERCIAL LENDING INSTITUTIONS,
as the Lenders,
and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
as the Agent for the Lenders.
<PAGE>
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of November 1,
1997 among (i) ANDREW CORPORATION, a Delaware corporation (the "COMPANY") and
Designated Subsidiaries (hereafter defined) of the Company as are now or may
hereafter become parties hereto (collectively, together with the Company, the
"BORROWERS"), (ii) the various financial institutions as are now or may become
parties hereto (collectively, the "LENDERS"), and (iii) BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION ("B OF A"), as agent (the "AGENT") for the
Lenders.
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement dated as of June 16, 1993,
as amended (as so amended the "EXISTING Agreement"), the Company has obtained
Commitments from the Lenders to make Loans; and
WHEREAS, the parties hereto have agreed to amend and restate the
Existing Agreement so as to, among other things, (a) reduce the maximum
aggregate "Commitment Amount" (hereafter defined) at any one time outstanding
from $75,000,000 to $50,000,000, and (b) remove from the Existing Agreement the
provisions for Loans by B of A to the Designed Joint Ventures.
NOW, THEREFORE, in consideration of the mutual agreements contained
herein, and subject to the terms and conditions hereof, the Existing Agreement
is hereby restated in its entirety, and the parties hereto, intending to be
legally bound hereby, further agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. DEFINED TERMS. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall, except where the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms
thereof):
"AGENT" is defined in the PREAMBLE and includes each other Person as
shall have subsequently been appointed as the successor Agent pursuant to
SECTION 9.4.
"AGREEMENT" means, on any date, this Amended and Restated Credit
Agreement as originally in effect on the Amendment Effective Time and as
thereafter from time to time amended, supplemented, amended and restated, or
otherwise modified and in effect on such date.
"ALTERNATE REFERENCE RATE" means, on any date and with respect to all
Reference Rate Loans, a fluctuating rate of interest per annum (rounded upward
to the next highest 1/8 of 1% if not already an integral multiple of 1/8 of 1%)
equal to the higher of (a) the rate of interest most recently announced by the
Agent at its Domestic Office as its Reference Rate; or (b) the Market Federal
Funds Rate most recently determined by the Agent plus one-half percent (.50)%.
<PAGE>
The Alternate Reference Rate is not necessarily intended to be the
lowest rate of interest determined by the Agent in connection with extensions of
credit. For purposes of this Agreement (i) any change in the Alternate Reference
Rate due to a change in the Reference Rate shall be effective on the date such
change in the Reference Rate is announced and (ii) any change in the Alternate
Reference Rate due to a change in the Market Federal Funds Rate shall be
effective on the effective date of such change in the Market Federal Funds Rate.
If for any reason the Agent shall have determined (which determination shall be
conclusive in the absence of manifest error) that it is unable to ascertain the
Market Federal Funds Rate for any reason, including, without limitation, the
inability or failure of the Agent to obtain sufficient bids or publications in
accordance with the terms hereof, the Alternate Reference Rate shall be the
Reference Rate until the circumstances giving rise to such inability no longer
exist. The Agent will give notice promptly to the Company and the Lenders of
changes in the Alternate Reference Rate.
"AMENDMENT EFFECTIVE TIME" means, the time when the conditions for
the effectiveness of this amendment and restatement are met.
"ASSIGNEE LENDER" is defined in SECTION 10.11.1.
"AUTHORIZED CORPORATE OFFICER" means, relative to any Obligor, those
of its officers whose signatures and incumbency shall have been certified to the
Agent and the Lenders pursuant to SECTION 5.1.1.
"AUTHORIZED CORPORATE OFFICIAL" means, relative to any Obligor and
any action to be taken on behalf of any Obligor, any Authorized Corporate
Officer of such Obligor and any other employee of such Obligor duly designated
and authorized by an Authorized Corporate Officer to take such action.
"B OF A" means Bank of America National Trust and Savings
Association.
"BANKING DAY" means (a) any day which is neither a Saturday or Sunday
nor a legal holiday on which banks are authorized or required to be closed in
Chicago, Illinois, (b) relative to the making, continuing, prepaying or repaying
of (i) any Eurodollar Rate Loans, any day on which dealings in Eurodollars are
carried on in the interbank eurodollar market and (ii) any Eurocurrency Loans,
any day on which dealings in the applicable currency are carried on in both the
country of issue of such currency and in the country where payment or
disbursement thereof is to be made.
"BORROWER" is defined in the PREAMBLE.
"BORROWING" means Loans of the same Type and, in the case of Fixed
Rate Loans, having the same Interest Period, made by all Lenders on the same
Banking Day and pursuant to the same Borrowing Request in accordance with
SECTION 2.1 and 2.3.
"BORROWING REQUEST" means a loan request and certificate duly
executed by an Authorized Officer of the Company substantially in the form of
EXHIBIT B hereto.
"CAPITALIZED LEASE LIABILITIES" of any Person means the amount of all
capitalized monetary obligations of such Person under any Capitalized Lease,
determined in accordance with GAAP, and the stated maturity thereof shall be the
date of the last payment of rent or any other amount due under such lease prior
to the first date upon which such lease may be terminated by the lessee without
payment of a penalty.
<PAGE>
"CASH EQUIVALENT INVESTMENT" means, at any time as to any Person, any
investment that is classified under GAAP as a short term investment and is
consistent with such Person's internal guidelines regarding liquidity and short
term investments.
"CASH FLOW TO CONSOLIDATED FUNDED DEBT RATIO" means, with respect to
the Company and its Subsidiaries at any date of determination thereof for any
period, the ratio of (a) "cash flow from operations" of the Company and its
consolidated Subsidiaries for such period (as indicated in the consolidated
financial statements of the Company and its Subsidiaries delivered pursuant to
SECTION 7.1.1) TO (b) the sum as of the last day of such period of (i) the
Company's Consolidated Funded Debt plus (ii) the Contingent Liabilities of the
Company and its consolidated Subsidiaries determined on a consolidated basis.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980 as amended by the Superfund Amendments and
Reauthorization Action of 1986, as thereafter amended.
"CERCLIS" means the Comprehensive Environmental Response Compensation
Liability Information System List.
"CHANGE IN CONTROL" means the acquisition by any Person, or two or
more Persons acting in concert (other than any Person or Persons included in a
majority of the Persons named as "Executive Officers" of the Company in the most
recent proxy statement or annual report or Form 10-K filed by the Company with
the Securities and Exchange Commission, or any successors to such person who
were duly elected by the Company's Board of Directors (at least a majority of
the members of which shall be the same persons who constituted a majority of the
directors during the 12 months preceding such election)) of beneficial ownership
(within the meaning of Rule 13d-3 of the Securities and Exchange Commission
under the Securities Exchange Act of 1934) of more than fifty percent (50%) of
the outstanding shares of voting stock of the Company.
"CODE" means the Internal Revenue Code of 1986, as amended, reformed
or otherwise modified from time to time.
"COMMITMENT" means, relative to any Lender, such Lender's obligation
to make Loans pursuant to SECTION 2.1.1.
"COMMITMENT AMOUNT" means, on any date, $50,000,000 (in Dollars
and/or Dollar Equivalent), as such amount may be reduced from time to time
pursuant to SECTION 2.2.1.
"COMMITMENT TERMINATION DATE" means:
(a) the Stated Maturity Date;
(b) the date on which the Commitment Amount is
terminated in full or reduced to zero pursuant to
SECTION 2.2.1; and
(c) the date on which any Commitment Termination
Event occurs.
Upon the occurrence of any event described in CLAUSE (B) or (C), the Commitments
shall terminate automatically and without further action.
<PAGE>
"COMMITMENT TERMINATION EVENT" means
(a) the occurrence of any Default described in
CLAUSES (A) through (E) of SECTION 8.1.9 with respect to
the Company or any Subsidiary; or
(b) the occurrence and continuance of any other
Event of Default and either
(i) the declaration of the Loans to be due
and payable pursuant to SECTION 8.3, or
(ii) in the absence of such declaration,
the giving of notice by the Agent, acting at the
direction of the Required Lenders, to the
Company, that the Commitments have been
terminated.
"COMPANY" is defined in the PREAMBLE.
"COMPANY GUARANTY" means a Guaranty executed and delivered by the
Company pursuant to SECTION 5.2.4. substantially in the form of EXHIBIT C
hereto, as amended, supplemented restated or otherwise modified from time to
time.
"CONSOLIDATED CURRENT LIABILITIES" means, with respect to any Person
at any date of determination thereof, the consolidated current liabilities of
such Person and its consolidated Subsidiaries as determined in accordance with
GAAP.
"CONSOLIDATED FUNDED DEBT" means, with respect to any Person at any
date of determination thereof, the sum on such date of (a) such Person's
Consolidated Long-Term Debt and (b) the aggregate present values of the
principal portion of all Capitalized Lease Liabilities of such Person and its
consolidated Subsidiaries on a consolidated basis.
"CONSOLIDATED LONG-TERM DEBT" means, with respect to any Person at
any date of determination thereof, Indebtedness of such Person and its
consolidated Subsidiaries which is included in CLAUSES (A), (C) and (F) of the
definition of Indebtedness, the final maturity of which is more than twelve (12)
months after such date of determination.
"CONSOLIDATED NET ASSETS" means, with respect to any Person at any
date of determination thereof, such Person's Consolidated Total Assets MINUS
such Person's Consolidated Current Liabilities.
"CONSOLIDATED NET INCOME" means, with respect to any Person for any
period, the net income of such Person and its consolidated Subsidiaries for such
period determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED NET WORTH" means, with respect to any Person at any
date of determination thereof, the total of shareholders' equity (including
capital stock, additional paid-in capital and retained earnings after deducting
treasury stock) of such Person and its consolidated Subsidiaries at such date
determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED TANGIBLE NET WORTH" means, with respect to any Person
at any date of determination thereof, (a) Consolidated Total Assets of such
Person at such date minus (b) the sum at such date of (i) Consolidated Total
Liabilities of such Person plus (ii) the aggregate Intangibles of such Person
and its consolidated Subsidiaries determined on a consolidated basis.
<PAGE>
"CONSOLIDATED TOTAL ASSETS" means, with respect to any Person at any
date of determination thereof, the total amount of all assets of such Person and
its consolidated Subsidiaries determined on a consolidated basis in accordance
with GAAP.
"CONSOLIDATED TOTAL CAPITALIZATION" means, with respect to any Person
at any date of determination thereof, the sum on such date of (a) Consolidated
Funded Debt of such Person plus (b) Consolidated Tangible Net Worth of such
Person.
"CONSOLIDATED TOTAL LIABILITIES" means, with respect to any Person at
any date of determination thereof, the total of all items which, in accordance
with GAAP, would be included as liabilities on the liability side of the
consolidated balance sheet of such Person and its consolidated Subsidiaries.
"CONTINGENT LIABILITY" means, with respect to any Person, any
agreement, undertaking or arrangement by which such Person guarantees, endorses
or otherwise becomes or is contingently liable upon (by direct or indirect
agreement, contingent or otherwise, to provide funds for payment, to supply
funds to, or otherwise to invest in, a debtor, or otherwise to assure a creditor
against loss) the indebtedness, obligation or any other liability of any other
Person (other than by endorsements of instruments in the course of collection),
or guarantees the payment of dividends or other distributions upon the shares of
any other Person. The amount of any Person's obligation under any Contingent
Liability shall (subject to any limitation set forth therein) be deemed to be
the outstanding principal amount (or maximum principal amount, if larger) of the
debt, obligation or other liability guaranteed thereby.
"CONTINUATION/CONVERSION NOTICE" means a notice of continuation or
conversion and certificate duly executed by an Authorized Officer of the Company
substantially in the form of EXHIBIT D hereto.
"DEFAULT" means any Event of Default or any condition, occurrence or
event which, after notice or lapse of time or both, would constitute an Event of
Default.
"DEMAND DEPOSIT ACCOUNT" means account No. 71-15946 maintained by the
Company at B of A's 231 South LaSalle Street, Chicago, Illinois location, and
any replacements or substitutions therefor.
"DESIGNATED CURRENCY" is defined in the definition of "Eurocurrency".
"DESIGNATED SUBSIDIARY" means any Subsidiary identified as such in a
Designation Letter.
"DESIGNATION LETTER" means a letter in the form of EXHIBIT E signed
by an Authorized Officer of the Company and each Designated Subsidiary
identified therein.
"DETERMINATION DATE" means each of those dates determined in
accordance with SECTION 2.5(B).
"DOLLAR EQUIVALENT" means, (i) in the case of an amount denominated
in Dollars, such amount, and (ii) in any currency other than Dollars, the Dollar
equivalent of such amount as determined in accordance with SECTION 2.5.
"DOLLARS" and the sign "$" mean lawful money of the United States.
"DOMESTIC DOLLARS" means Dollars on deposit in the United States of
America.
<PAGE>
"DOMESTIC OFFICE" means, relative to any Lender, the office of such
Lender designated as such below its signature hereto or designated in a Lender
Assignment Agreement, or such other office of a Lender (or any successor or
assign of such Lender) within the United States as may be designated from time
to time by notice from such Lender, as the case may be, to each other Person
party hereto.
"EFFECTIVE DATE" means the date this Agreement becomes effective
pursuant to SECTION 10.8.
"ENVIRONMENTAL LAWS" means all applicable federal, state or local
statutes, laws, ordinances, codes, rules and regulations (including consent
decrees and administrative orders binding on the Company or any of its
Subsidiaries) relating to public health and safety and protection of the
environment.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute of similar import, together with the
regulations thereunder, in each case as in effect from time to time. References
to sections of ERISA also refer to any successor sections.
"ERISA AFFILIATE" means any corporation, partnership, or other trade
or business (whether or not incorporated) that is, along with the Company, a
member of a controlled group of corporations or a controlled group of trades or
businesses, as described in sections 414(b) and 414(c), respectively, of the
Code or section 4001 of ERISA, or a member of the same affiliated service group
within the meaning of section 414(m) of the Code.
"EUROCURRENCY" means (i) each of Pounds Sterling, French Francs,
Swiss Francs, Deutschmarks, Canadian Dollars, Australian Dollars, Japanese Yen
and European Currency Units (each, a "DESIGNATED CURRENCY"), and (ii) any other
currency (other than Dollars) to which all the Lenders shall consent, in each
case (x) on deposit outside such currency's country of issuance and (y) as long
as such currency is freely transferable and convertible into Dollars.
"EUROCURRENCY RATE LOAN" means a Loan made in a Eurocurrency and
bearing interest, at all times during an Interest Period applicable to such
Loan, at a fixed rate of interest determined by reference to the Interbank Rate
(Reserve Adjusted).
"EURODOLLAR" mean Dollars on deposit in a bank outside the United
States of America, its territories and possessions, which are available for
transfer to and from the United States of America, its territories and
possessions.
"EURODOLLAR RATE LOAN" means a Loan made and payable in Dollars
bearing interest, at all times during an Interest Period applicable to such
Loan, at a fixed rate of interest determined by reference to the Interbank Rate
(Reserve Adjusted).
"EVENT OF DEFAULT" is defined in SECTION 8.1.
"EXCESS PORTION" is defined in SECTION 7.2.8.
"EXTENSION LETTER" is defined in SECTION 2.2.2.
"FISCAL QUARTER" means any quarter of a Fiscal Year.
"FISCAL YEAR" means any period of twelve consecutive calendar months
ending on September 30th; references to a Fiscal Year with a number
corresponding to any calendar year (E.G. the "1993 Fiscal Year") refer to the
Fiscal Year ending on the September 30th occurring during such calendar year.
<PAGE>
"FIXED RATE LOAN" means any Eurodollar Rate Loan, Eurocurrency Rate
Loan or Quoted Rate Loan.
"F.R.S. BOARD" means the Board of Governors of the Federal Reserve
System or any successor thereto.
"GAAP" is defined in SECTION 1.4.
"GROSS INTEREST EXPENSE" means, with respect to any Person for any
period of determination thereof, all interest expense (whether cash or accrued)
of such Person during such period with respect to any Indebtedness of such
Person.
"HAZARDOUS MATERIAL" means
(a) any "hazardous substance", as defined in
Section 101(14) of CERCLA;
(b) any petroleum product; or
(c) any pollutant or contaminant or hazardous,
dangerous or toxic chemical, material or substance
within the meaning of any other applicable federal,
state or local law, regulation, ordinance or requirement
(including consent decrees and administrative orders
binding on the Company or any of its Subsidiaries)
relating to or imposing liability or standards of
conduct concerning any hazardous, toxic or dangerous
waste, substance or material, all as amended or
hereafter amended.
"HEDGING OBLIGATIONS" means, with respect to any Person, all
liabilities of such Person under interest rate swap agreements, interest rate
cap agreements and interest rate collar agreements, and all other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates or currency exchange rates.
"HEREIN", "HEREOF", "HERETO", "HEREUNDER" and similar terms contained
in this Agreement or any other Loan Document refer to this Agreement or such
other Loan Document, as the case may be, as a whole and not to any particular
Section, paragraph or provision of this Agreement or such other Loan Document.
"IMPERMISSIBLE QUALIFICATION" means, relative to the opinion or
certification of any independent public accountant as to any financial statement
of any Obligor, any qualification or exception to such opinion or certification
(a) which is of a "going concern" or similar
nature;
(b) which relates to the limited scope of
examination of matters relevant to such financial
statement; or
(c) which relates to the treatment or
classification of any item in such financial statement
and which, as a condition to its removal, would require
an adjustment to such item the effect of which would be
to cause such Obligor to be in default of any of its
obligations under SECTION 7.2.
<PAGE>
"INCLUDING" means including without limiting the generality of any
description preceding such term, and, for purposes of this Agreement and each
other Loan Document, the parties hereto agree that the rule of EJUSDEM GENERIS
shall not be applicable to limit a general statement, which is followed by or
referable to an enumeration of specific matters, to matters similar to the
matters specifically mentioned.
"INDEBTEDNESS" of any Person means, without duplication:
(a) all obligations of such Person for borrowed
money and all obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments;
(b) all obligations, contingent or otherwise,
relative to the face amount of all letters of credit,
whether or not drawn, and banker's acceptances issued
for the account of such Person;
(c) all obligations of such Person as lessee under
leases which have been or should be, in accordance with
GAAP, recorded as Capitalized Lease Liabilities;
(d) all other items which, in accordance with
GAAP, would be included as liabilities on the liability
side of the balance sheet of such Person as of the date
at which Indebtedness is to be determined;
(e) net liabilities of such Person under all
Hedging Obligations;
(f) whether or not so included as liabilities in
accordance with GAAP, all obligations of such Person to
pay the deferred purchase price of property or services,
and indebtedness (excluding prepaid interest thereon)
secured by a Lien on property owned or being purchased
by such Person (including indebtedness arising under
conditional sales or other title retention agreements),
whether or not such indebtedness shall have been assumed
by such Person or is limited in recourse; and
(g) all Contingent Liabilities of such Person in
respect of any of the foregoing.
Notwithstanding the foregoing, for purposes of determining the amount of a
Person's Consolidated Long-Term Debt, Indebtedness of such Person of the type
described in CLAUSE (C) of this definition shall not be taken into account
unless the outstanding amount thereof exceeds $500,000 in the aggregate.
Further, for all purposes of this Agreement, the Indebtedness of any Person
shall include the Indebtedness of (i) any partnership in which such Person is a
general partner and (ii) any joint venture in which such Person is a joint
venturer if as the result thereof, such Person is personally liable for such
Indebtedness.
"INDEMNIFIED LIABILITIES" is defined in SECTION 10.4.
"INDEMNIFIED PARTIES" is defined in SECTION 10.4.
"INTANGIBLES" means, with respect to any Person, the aggregate amount
of any intangible assets of such Person including, without limitation, goodwill,
franchises, licenses, patents, trademarks, trade names, copyrights, service
marks and brand names.
<PAGE>
"INTERBANK LENDING OFFICE" means, relative to any Lender, the office
of such Lender designated as such below its signature hereto or designated in a
Lender Assignment Agreement or such other office of a Lender as designated from
time to time by notice from such Lender to the Company and the Agent, whether or
not outside the United States, which shall be making or maintaining Eurodollar
Rate Loans or Eurocurrency Rate Loans of such Lender hereunder.
"INTERBANK RATE" means, relative to any Interest Period for
Eurocurrency Rate Loans or Eurodollar Rate Loans, the rate of interest equal to
the average (rounded upwards, if necessary, to the nearest 1/16 of 1%) of the
rates per annum at which deposits in immediately available funds (a) in the case
of a Eurodollar Rate Loan, in Eurodollars and (b) in the case of a Eurocurrency
Loan, in either (i) the appropriate Eurocurrency or (ii) Dollars or Eurodollars
in an amount equal to the Dollar Equivalent of such Eurocurrency deposits (plus
the cost of any contract purchased or sold by the Agent to hedge the conversion
of Dollars or Eurodollars, as applicable, into or from such Eurocurrency) are
offered to the Agent's Interbank Lending Office by major banks in the interbank
eurocurrency market as at or about 9:00 a.m. Chicago, Illinois time two Banking
Days prior to the beginning of such Interest Period for delivery on the first
day of such Interest Period, and in an amount approximately equal to the amount
of the Agent's Eurocurrency Rate Loan or Eurodollar Rate Loan, as applicable,
and for a period approximately equal to such Interest Period.
"INTERBANK RATE (RESERVE ADJUSTED)" means, relative to any Loan to be
made, continued or maintained as, or converted into, a Eurocurrency Rate Loan or
a Eurodollar Rate Loan for any Interest Period, a rate per annum (rounded
upwards, if necessary, to the nearest 1/16 of 1%) determined pursuant to the
following formula:
Interbank Rate = INTERBANK RATE/
(Reserve Adjusted) (1.00 - Reserve Percentage)
"INTEREST COVERAGE RATIO" means, with respect to any Person for any
period of determination thereof, the ratio of (a) the sum of (i) Consolidated
Net Income of such Person for such period, plus (ii) consolidated Interest
Expense of such Person and its consolidated Subsidiaries for such period, plus
(iii) the aggregate amount which was deducted by such Person in respect of
Federal, state and local income taxes of such Person and its Subsidiaries in
determining such Person's Consolidated Net Income for such period TO (b)
consolidated Gross Interest Expense of such Person and its consolidated
Subsidiaries for such period.
"INTEREST EXPENSE" means, with respect to any Person for any period
of determination, Gross Interest Expense of such Person for such period minus
all items included therein which are required to be capitalized on a balance
sheet of such Person prepared in accordance with GAAP.
"INTEREST PERIOD" means, (a) with respect to any Eurodollar Loan or
Eurocurrency Loan, the one-month, two-month or three-month period selected by
the applicable Borrower and (b) with respect to any Quoted Rate Loan, the
one-day, one-week, two-week, three-week, thirty-day, sixty-day or ninety-day
period selected by the applicable Borrower, in each case beginning on (and
including) the date on which such Fixed Rate Loan is made or continued as, or
<PAGE>
converted into, a Fixed Rate Loan pursuant to SECTION 2.3 or 2.4, in each case
as the applicable Borrower may select in its relevant notice pursuant to SECTION
2.3 or 2.4; PROVIDED, HOWEVER, that
(a) a Borrower shall not be permitted to select
Interest Periods for Fixed Rate Loans to be in effect at
any one time which will have expiration dates occurring
on more than twenty (20) different dates;
(b) Interest Periods commencing on the same date
for Loans comprising part of the same Borrowing shall be
of the same duration;
(c) if such Interest Period would otherwise end on
a day which is not a Banking Day, such Interest Period
shall end on the next following Banking Day (unless, if
such Interest Period applies to Eurocurrency Rate Loans
or Eurodollar Rate Loans, such next following Banking
Day is the first Banking Day of a calendar month, in
which case such Interest Period shall end on the Banking
Day next preceding such numerically corresponding day);
and
(d) no Interest Period may end later than date
described in CLAUSE (A) of the definition of "COMMITMENT
TERMINATION DATE".
"INVESTMENT" means, relative to any Person,
(a) any loan or advance made by such Person to any
other Person (excluding commission, travel and similar
advances to officers and employees made in the ordinary
course of business);
(b) any Contingent Liability of such Person; and
(c) any ownership or similar interest held by such
Person in any other Person.
The amount of any Investment shall be the original principal or capital amount
thereof less all returns of principal or equity thereon (and without adjustment
by reason of the financial condition of such other Person) and shall, if made by
the transfer or exchange of property other than cash, be deemed to have been
made in an original principal or capital amount equal to the fair market value
of such property.
"LENDER ASSIGNMENT AGREEMENT" means a Lender Assignment Agreement
substantially in the form of EXHIBIT H hereto or such other form as shall be
acceptable to the Agent.
"LENDERS" is defined in the PREAMBLE.
"LEVERAGE RATIO" means, with respect to any Person, the ratio of (a)
such Person's Consolidated Total Liabilities TO (b) such Person's Consolidated
Tangible Net Worth.
"LIEN" means any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise),
charge against or interest in property to secure payment of a debt or
performance of an obligation or other priority or preferential arrangement of
any kind or nature whatsoever.
<PAGE>
"LOAN" is defined in SECTION 2.1.1, and shall be Reference Rate
Loans, Eurodollar Rate Loans, Eurocurrency Loans or Quoted Rate Loans.
"LOAN DOCUMENT" means this Agreement, the Notes, and each other
agreement, document or instrument delivered in connection with this Agreement
and the Notes.
"LONG TERM LEASE" means any lease of real or personal property (other
than a Capitalized Lease) having an original term, including any period for
which the lease may be renewed or extended at the option of the lessor or the
lease, of more than two years.
"MARKET FEDERAL FUNDS" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to (a) the weighted average
of the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published for such day (or,
if such day is not a Banking Day, for the next preceding Banking Day) by the
Federal Reserve Bank of New York; or (b) if such rate is not so published for
any day which is a Banking Day, the average of the quotations for such day on
such transactions received by the Agent from three federal funds brokers of
recognized standing selected by it.
"MONTHLY PAYMENT DATE" means the last day of each calendar month or,
if any such day is not a Banking Day, the next succeeding Banking Day.
"NEGOTIATED FEDERAL FUNDS RATE" means, for any period, a rate per
annum equal to the rate quoted by the Agent as its then current rate for Federal
Funds.
"NOTE" means a promissory note of the Company or other applicable
Borrower payable to any Lender in the form of Exhibit A hereto, as each such
promissory note may be amended, or otherwise modified from time to time,
evidencing the aggregate Indebtedness of such Borrower to such Lender resulting
from outstanding Loans, and also means all other promissory notes accepted from
time to time in substitution therefor or renewal thereof.
"OBLIGATIONS" means all obligations (monetary or otherwise) of the
Company, each other Borrower and each other Obligor arising under or in
connection with this Agreement, the Notes and each other Loan Document.
"OBLIGOR" means the Company and each other Borrower or any other
Person (other than the Agent or any Lender) obligated under any Loan Document.
"ORGANIC DOCUMENT" means, relative to any Obligor, its certificate of
incorporation, its by-laws and all shareholder agreements, voting trusts and
similar arrangements applicable to any of its authorized shares of capital
stock.
"PARTICIPANT" is defined in SECTION 10.11.
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"PENSION PLAN" means a "pension plan", as such term is defined in
section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a
multiemployer plan as defined in section 4001(a)(3) of ERISA), and to which the
Company or any ERISA Affiliate may have liability, including any liability by
reason of having been a substantial employer within the meaning of section 4063
of ERISA at any time during the preceding five years, or by reason of being
deemed to be a contributing sponsor under section 4069 of ERISA.
<PAGE>
"PERCENTAGE" means, relative to any Lender, the percentage set forth
opposite its name on SCHEDULE I hereto or set forth in a Lender Assignment
Agreement, as such percentage may be adjusted from time to time pursuant to
Lender Assignment Agreement(s) executed by such Lender and its Assignee
Lender(s) and delivered pursuant to SECTION 10.11.
"PERSON" means any natural person, corporation, partnership, firm,
joint venture, limited liability company, association, trust, government,
governmental agency or any other entity, whether acting in an individual,
fiduciary or other capacity.
"PLAN" means any Pension Plan or Welfare Plan.
"PRIOR CURRENCY" - is defined in SECTION 2.4.
"QUARTERLY PAYMENT DATE" means (a) in the case of payment of interest
on Reference Rate Loans, the 25th day of each March, June, September, and
December or, if any such day is not a Banking Day, the next succeeding Banking
Day and (b) in the case of payment of any fee, the last day of each March, June,
September, and December or, if any such day is not a Banking Day, the next
succeeding Banking Day.
"QUOTATION DAY" - is defined in SECTION 2.4.2.
"QUOTED RATE" means the rate of interest quoted by the Agent pursuant
to SECTION 2.3.2 applicable to a Borrowing of Quoted Rate Loans, provided
however, that such rate shall not be less than the Negotiated Federal Funds Rate
in effect at the time such Borrowing is made, plus 0.25%.
"QUOTED RATE LOAN" means a Loan made in Dollars bearing interest, at
all times during an Interest Period applicable to such Loan, at the Quoted Rate
applicable thereto.
"REFERENCE RATE" means, at any time, the rate of interest then most
recently announced by B of A at Chicago, Illinois as its reference rate.
"REFERENCE RATE LOAN" means a Loan made and payable in Dollars
bearing interest at a fluctuating rate determined by reference to the Alternate
Reference Rate.
"RELATED PARTY" means, with respect to any Person (i) any director
(or Person holding the equivalent position) or officer (or Person holding the
equivalent position) of such Person, and (ii) any other Person which, directly
or indirectly, controls or is controlled by or under common control with such
first Person (excluding any trustee under, or any committee with responsibility
for administering, a Plan). A Person shall be deemed to be
(a) "controlled by" any other Person if (i) such
other Person beneficially owns or holds, or directly or
indirectly has the power to vote five percent (5%) or
more (on a fully diluted basis) of the equity interest
of such first Person or (ii) if such other
Person has the power to direct or cause the direction of the management and
policies of such first Person (whether by contract or otherwise); or
(b) "controlled by" or "under common control with"
another Person if such other Person is a member of the
immediate family of a Person which is a Related Party of
such first Person or is the executor, administrator or
other personal representative of such first Person.
<PAGE>
"RELEASE" means a "release", as such term is defined in CERCLA.
"RENTALS" means all fixed payments (including as such all payments
which the lessee is obligated to make to the lessor on termination of the lease
or surrender of the property) payable by a Person as lessee or sublessee under a
lease of real or personal property, but shall be exclusive of any amounts
required to be paid by such Person (whether or not designated as rents or
additional rents) on account of maintenance, repairs, insurance, taxes and
similar charges. Fixed rents under any so-called "percentage leases" shall be
computed solely on the basis of the minimum rents, if any, required to be paid
by the lessee regardless of sales volume or gross revenues.
"REPORTABLE EVENT" has the meaning given to such term in ERISA.
"REQUIRED LENDERS" means, (a) at any time that there are three (3)
Lenders, any two (2) Lenders holding at least 51% of the then aggregate
outstanding principal amount of the Notes then held by the Lenders, or, if no
such principal amount is then outstanding, any two (2) Lenders having at least
51% of the Commitments and (b) at all other times, Lenders holding at least 51%
of the then aggregate outstanding principal amount of the Notes then held by the
Lenders, or, if no such principal amount is then outstanding, Lenders having at
least 51% of the Commitments.
"RESERVE PERCENTAGE" means, relative to any Interest Period for
Eurocurrency Rate Loans or Eurodollar Rate Loans, the reserve percentage
(expressed as a decimal) equal to the maximum aggregate reserve requirements
(including all basic, emergency, supplemental, marginal and other reserves and
taking into account any transitional adjustments or other scheduled changes in
reserve requirements) specified under regulations issued from time to time by
the F.R.S. Board and then applicable to assets or liabilities consisting of and
including "Eurocurrency Liabilities", as currently defined in Regulation D of
the F.R.S. Board, having a term approximately equal or comparable to such
Interest Period. For purposes of this definition, any Eurocurrency Rate Loans or
Eurodollar Rate Loans hereunder shall be deemed to be "Eurocurrency Liabilities"
as defined in Regulation D.
"SECOND CURRENCY" - is defined in SECTION 2.4.
"SENIOR NOTE AGREEMENTS" means, collectively, those Note Agreements,
each dated as of September 1, 1990, between the Company and certain purchasers,
providing for the sale by the Company of its 9.52% Senior Notes due September
30, 2005, as such Note Agreements are amended, modified or supplemented from
time to time.
"STATED MATURITY DATE" means March 31, 2000, or as extended, if
extended, pursuant to SECTION 2.2.2.
"SUBSIDIARY" means, as to any Person, (i) any corporation of which or
in which such Person, such Person and one or more of its Subsidiaries, or one or
more Subsidiaries of such Person directly or indirectly own 50% or more of the
combined voting power of all classes of stock having general voting power under
ordinary circumstances to elect a majority of the board of directors of such
corporation (irrespective of whether at the time capital stock of any other
class or classes of such corporation shall or might have voting power upon the
occurrence of any contingency), (ii) any partnership, joint venture or similar
entity of which or in which such Person, such Person and one or more of its
Subsidiaries, or one or more Subsidiaries of such Person directly or indirectly
own 50% or more of the capital interest or profits interest or (iii) any trust,
association or other unincorporated organization of which or in which such
Person, and one or more of its Subsidiaries, or one or more Subsidiaries of such
Person directly or indirectly own 50% or more of the beneficial interest.
<PAGE>
"TAXES" is defined in SECTION 4.6.
"TERMINATION EVENT" with respect to any Pension Plan means (i) the
institution by the Company, the PBGC or any other Person of steps to terminate
such Plan, (ii) the occurrence of a Reportable Event with respect to such Plan
which the Agent or the Required Lenders reasonably believes may be a basis for
the PBGC to institute steps to terminate such Plan, or (iii) the withdrawal from
such Plan (or deemed withdrawal under section 4062 (f) of ERISA) by the Company
or any ERISA Affiliate which is a substantial employer within the meaning of
section 4063 of ERISA.
"TYPE" means, relative to any Loan, the portion thereof, if any,
being maintained as a Reference Rate Loan, Eurocurrency Rate Loan, Eurodollar
Rate Loan or Quoted Rate Loan.
"UNITED STATES" or "U.S." means the United States of America, its
fifty States and the District of Columbia.
"WELFARE PLAN" means a "welfare plan", as such term is defined in
section 3(1) of ERISA.
SECTION 1.2. USE OF DEFINED TERMS. Unless otherwise defined or the
context otherwise requires, terms for which meanings are provided in this
Agreement shall have such meanings when used in the Schedules to this Agreement
and in each Note, Borrowing Request, Continuation/Conversion Notice, Loan
Document, notice and other communication delivered from time to time in
connection with this Agreement or any other Loan Document.
SECTION 1.3. CROSS-REFERENCES. Unless otherwise specified, references
in this Agreement and in each other Loan Document to any Article or Section are
references to such Article or Section of this Agreement or such other Loan
Document, as the case may be, and, unless otherwise specified, references in any
Article, Section or definition to any clause are references to such clause of
such Article, Section or definition.
SECTION 1.4. ACCOUNTING AND FINANCIAL DETERMINATIONS. Unless
otherwise specified, all accounting terms used herein or in any other Loan
Document shall be interpreted, all accounting determinations and computations
hereunder or thereunder (including under SECTION 7.2.4) shall be made, and all
financial statements required to be delivered hereunder or thereunder shall be
prepared in accordance with, those generally accepted accounting principles
("GAAP") applied in the preparation of the financial statements referred to in
SECTION 6.5.
ARTICLE II
COMMITMENTS, BORROWING PROCEDURES AND NOTES
SECTION 2.1. COMMITMENTS. On the terms and subject to the conditions
of this Agreement (including ARTICLE V), each Lender severally agrees to make
Loans pursuant to the Commitments described in this SECTION 2.1.
SECTION 2.1.1. COMMITMENT OF EACH LENDER. From time to time on any
Banking Day occurring prior to the Commitment Termination Date, each Lender will
make loans (relative to such Lender, and of any Type, the "LOANS") to a Borrower
equal to such Lender's Percentage of the aggregate amount of the Borrowing
requested by such Borrower to be made on such day. Eurocurrency Rate Loans shall
be made in a currency which is not a Designated Currency only with the consent
of all Lenders. The commitment of each Lender described in this SECTION 2.1.1 is
herein referred to as its "COMMITMENT". On the terms and subject to the
conditions hereof, each Borrower may from time to time borrow, repay and
reborrow Loans made to it.
<PAGE>
SECTION 2.1.2. LENDERS NOT PERMITTED OR REQUIRED TO MAKE LOANS. No
Lender shall be permitted or required to make any Loan if,
(a) after giving effect thereto, the
aggregate outstanding principal amount of all
Loans of all Lenders (in Dollars and/or the
Dollar Equivalent) would exceed the Commitment
Amount, or
(b) after giving effect thereto, the
aggregate outstanding principal amount of all
Loans of such Lender would exceed such Lender's
Percentage of the Commitment Amount, or
(c) the making of such Loan would be in
violation of any limitation or prohibition
provided by any applicable statute, regulation,
directive or guideline, or decision of any
court, central bank, regulator or other
governmental authority applicable to such Lender
or, in the case of Eurocurrency Rate Loans, of
the country of issuance and/or the country of
disbursement of the applicable currency and
including, without limitation, Regulation U of
the F.R.S Board.
SECTION 2.2. REDUCTION OF COMMITMENT AMOUNT; EXTENSION OF STATED
MATURITY DATE.
SECTION 2.2.1. REDUCTION OF COMMITMENT AMOUNT. The
Company may, from time to time on any Banking Day
occurring after the time of the initial Borrowing
hereunder, voluntarily reduce the Commitment Amount;
PROVIDED, however, that all such reductions shall
require at least five (5) Banking Days' prior notice to
the Agent and be permanent, and any partial reduction of
the Commitment Amount shall be in a minimum amount of
$1,000,000 (in Dollars and/or Dollar Equivalent) and in
an integral multiple of $1,000,000 (in Dollars and/or
Dollar Equivalent).
SECTION 2.2.2. EXTENSION OF STATED MATURITY DATE.
On any Banking Day during the period between December 1
and December 31 of each year, commencing on December 1,
1998, the Company may request in writing to the Agent
(which shall promptly notify each Lender) that the
Lenders agree to extend the Stated Maturity Date for a
period of one additional year from the scheduled Stated
Maturity Date. Each Lender may extend or decline to
extend the Stated Maturity Date in its sole discretion.
Each Lender that agrees to extend the Stated Maturity
Date shall so notify the Agent in writing. If Lenders
holding 100% of the Commitments shall agree to extend
the Stated Maturity Date, the Agent shall so notify the
Company in a letter substantially in the form of EXHIBIT
F hereto (an "EXTENSION LETTER") no later than March 1st
of the relevant year that, subject to the provisions of
this Agreement, the Stated Maturity Date shall be the
date specified in such Extension Letter. Upon receipt of
an Extension Letter duly executed on behalf of the
Company and each other Borrower, together with the
documents and instruments specified therein and subject
to the conditions precedent set forth in such Extension
Letter, the Stated Maturity Date shall be extended to
the date specified in such Extension Letter.
<PAGE>
SECTION 2.3. BORROWING PROCEDURE. By requesting in writing or by
telephone (promptly confirmed in writing) on or before 11:00 a.m., Chicago,
Illinois time, on a Banking Day, in accordance with the provisions of this
SECTION 2.3 applicable to the Type of Borrowing requested, the Company, through
one of its Authorized Corporate Officials may, on behalf of the Company or any
other Borrower, from time to time irrevocably request that a Borrowing be made
(a) in the case of Reference Rate Loans, in a minimum aggregate amount of
$500,000 and an integral multiple of $500,000, or in the unused amount of the
Commitments and (b) in the case of Fixed Rate Loans of any Type, in a minimum
aggregate amount of $500,000 and an integral multiple of $500,000. On the terms
and subject to the conditions of this Agreement, each Borrowing shall be
comprised of the same Type of Loans, and shall be made on the same Banking Day.
On or before 1:00 p.m. (Chicago time) on the Banking Day a requested Borrowing
is to be made, each Lender shall deposit with the Agent same day funds in an
amount equal to such Lender's Percentage of the requested Borrowing and in the
applicable currency. Such deposit will be made to an account which the Agent
shall specify from time to time by notice to the Lenders. To the extent funds
are received from the Lenders, the Agent shall make such funds available to the
applicable Borrower pursuant to SECTION 2.3.4. No Lender's obligation to make
any Loan shall be affected by any other Lender's failure to make any Loan. All
telephonic or other oral requests for a Borrowing shall be promptly confirmed in
writing by delivery to the Agent of a Borrowing Request therefor (including
delivery by facsimile transmission in accordance with SECTION 10.2) duly
executed by an Authorized Corporate Officer of the Company not later than five
(5) Banking Days after the date of any such oral request, PROVIDED, HOWEVER,
that a Borrower's failure to comply with any of the above requirements shall not
in any manner affect the obligations of the applicable Borrower to repay any
Loans made to such Borrower in accordance with the terms of this Agreement and
its Notes.
SECTION 2.3.1. EUROCURRENCY RATE LOANS AND
EURODOLLAR RATE LOANS. Each request for a Borrowing of
Eurocurrency Rate Loans or Eurodollar Rate Loans shall
be received by the Agent from an Authorized Corporate
Official of the Company on or before 11:00 a.m.,
Chicago, Illinois time, on a Banking Day not less than
(a) two (2) Banking Days' prior to the date of the
requested Borrowing in the case of Eurodollar Rate Loans
and (b) three (3) Banking Days' prior to the date of the
requested Borrowing in the case of Eurocurrency Rate
Loans. Each request shall specify (i) the applicable
Borrower, (ii) the borrowing date, which day shall be a
Banking Day, (iii) the amount and, if the Borrowing is
to be of Eurocurrency Rate Loans, the currency of the
requested Borrowing and (iv) the initial Interest Period
for such Borrowing.
SECTION 2.3.2. QUOTED RATE LOANS. Each request for
a Borrowing of Quoted Rate Loans shall be received by
the Agent from an Authorized Corporate Official of the
Company on or before 11:00 a.m., Chicago, Illinois time,
on the Banking Day of the requested Borrowing. Each
request shall specify (i) the applicable Borrower, (ii)
the amount of requested Borrowing and (iii) the initial
Interest Period for such Borrowing. Each such request
shall be deemed to constitute a request to receive by
telephone, from the Agent, a quotation of the interest
rate that would be applicable to the Borrowing of Quoted
Rate Loans identified in such borrowing request for the
Interest Period specified therein. If such interest rate
is satisfactory to the Company an Authorized Corporate
Official of the Company shall, no later than 11:00 a.m.
<PAGE>
Chicago, Illinois time, on such date, so indicate. Such
indication by an Authorized Corporate Official of the
Company shall constitute an irrevocable request that
such Borrowing of Quoted Rate Loans be made at the rate
the Agent quoted or would have quoted to the Company at
the time of such indication of acceptance, IT BEING
UNDERSTOOD that the Agent and the Lenders do not
guarantee that the interest rate quoted with respect to
a particular requested Borrowing of Quoted Rate Loans
shall continue to be available if such rate is not
accepted by an Authorized Corporate Official of the
Company at the time of quotation.
SECTION 2.3.3. REFERENCE RATE LOANS. Each request
for a Borrowing of Reference Rate Loans shall be
received by the Agent from an Authorized Corporate
Official of the Company on or before 11:00 a.m.,
Chicago, Illinois time, on the Banking Day of the
requested Borrowing. Each request shall specify (i) the
applicable Borrower, (ii) the borrowing date, which day
shall be a Banking Day and (iii) the amount of requested
Borrowing.
SECTION 2.3.4. PROCEEDS. Subject to the other
provisions of this Agreement, the Agent will pay to the
relevant Borrower the amount of a Borrowing on the date
designated in the request therefor upon receipt of the
documents required under SECTIONS 9 and 10 with respect
to such Borrowing. Each Borrowing of Reference Rate
Loans, Quoted Rate Loans and Eurodollar Rate Loans shall
be disbursed in Dollars, on the applicable borrowing
date, to the relevant Borrower through its account with
the Agent or if no such account exists, to such account
as the Company shall direct on behalf of the relevant
Borrower. Each Eurocurrency Rate Loan shall be disbursed
in the currency specified by the Company, at such branch
or affiliate of the bank or such other bank as the Agent
may select.
SECTION 2.4. CONTINUATION AND CONVERSION ELECTIONS. By requesting in
writing or by telephone (promptly confirmed in writing as hereinafter provided)
to the Agent on or before 11:00 a.m., Chicago, Illinois time, on a Banking Day,
a Borrower may from time to time irrevocably elect that all or a portion of one
Type of Loans be continued as such Type or converted into another Type of Loans,
in accordance with the applicable provisions of this SECTION 2.4; PROVIDED,
HOWEVER, that (i) the aggregate dollar amount of Loans which may be converted
and/or continued at any one time shall not be less than (a) in the case of
Reference Rate Loans, a minimum aggregate amount of $500,000 and an integral
multiple of $500,000, and (b) in the case of Fixed Rate Loans of any Type, a
minimum aggregate amount of $500,000 and an integral multiple of $500,000, (ii)
each such conversion or continuation shall be pro rated among the applicable
outstanding Loans of all Lenders, and (iii) no portion of the outstanding
principal amount of any Loans may be continued as, or be converted into, Fixed
Rate Loans when any Default has occurred and is continuing. Each telephonic or
other oral conversion or continuation request referred to in SECTION 2.4.1 or
SECTION 2.4.2 shall be promptly confirmed in writing by delivery to the Agent of
a duly completed Conversion/Continuation Notice duly executed by an Authorized
Officer of the Company not later than five (5) Banking Days after the date of
any such oral request. In the absence of receipt of a telephonic or written
request for continuation or conversion with respect to any Fixed Rate Loan in
accordance with the provisions of SECTION 2.4.1 or 2.4.2, as applicable, such
Fixed Rate Loan shall, on such last day, automatically convert to a Reference
<PAGE>
Rate Loan. Each conversion or continuation of a Loan in one currency (the "PRIOR
CURRENCY") into a Loan in another currency (the "SECOND CURRENCY") shall result
in a Loan in an amount denominated in the Second Currency equal to the
equivalent in the Second Currency of the Loan amount denominated in the Prior
Currency, in each case determined by the Agent in accordance with the provisions
of SECTION 2.5.
SECTION 2.4.1. EUROCURRENCY RATE LOANS, EURODOLLAR
RATE LOANS AND REFERENCE RATE LOANS. Subject to the
other provisions of this Agreement, a Borrower may
elect: (a) TO CONTINUE all or any portion of any
outstanding Eurodollar Rate Loans or Eurocurrency Rate
Loans from the current Interest Period of such Loans
into a subsequent Interest Period to begin on the last
day of such current Interest Period and in the same
currency or, in the case of Eurocurrency Rate Loans, in
the same or a different Eurocurrency, (b) TO convert any
outstanding Reference Rate Loans into Eurodollar Rate
Loans or Eurocurrency Rate Loans or (c) TO CONVERT one
Type of Fixed Rate Loan into any other Type of Loan
except a Quoted Rate Loan, such conversion to occur on
the last day of the then current Interest Period of the
Loans being converted. The Company shall give the Agent
prior telephonic notice (promptly confirmed in writing)
from an Authorized Corporate Official of the Company (x)
at least two (2) Banking Days' prior to the date of
continuation or conversion in the case of continuation
of or conversion into a Eurodollar Rate Loan and (y) at
least three (3) Banking Days' prior to the date of
continuation or conversion in the case of continuation
of or conversion into a Eurocurrency Rate Loan. Each
such notice shall specify the Borrower, the date, the
amount and the Interest Period, if applicable, and, in
the case of a continuation of or conversion into
Eurocurrency Rate Loans, the currency of the such Loans.
SECTION 2.4.2. QUOTED RATE LOANS. Subject to the
other provisions of this Agreement, a Borrower may elect
(a) TO CONTINUE all or any portion of any outstanding
Quoted Rate Loans from the current Interest Period of
such Loans into a subsequent Interest Period to begin on
the last day of such current Interest Period and in the
same currency, (b) TO CONVERT all or any portion of any
outstanding Eurodollar Rate Loans or Eurocurrency Rate
Loans to Quoted Rate Loans, such conversion to occur on
the last day of the then current Interest Period of the
Loans being converted, or (c) TO CONVERT all or any
portion of any outstanding Reference Rate Loans into
Quoted Rate Loans. If the Company desires to continue or
convert outstanding Loans as or into Quoted Rate Loans,
the Company shall give the Agent prior telephonic notice
(promptly confirmed in writing) from an Authorized
Corporate Official of the Company of a requested
continuation or conversion under this SECTION 2.4.2,
specifying the Borrower, the date, amount and Type of
Loans to be continued or converted, the applicable
Interest Periods and requesting that the Agent provide
the Company by telephone a quotation of the interest
rate(s) that would be applicable to the requested Quoted
Rate Loans for Interest Period(s) of a duration
designated by such Authorized Corporate Official and
<PAGE>
commencing (a) on the last day of the current Interest
Period in the case of outstanding Fixed Rate Loans or
(b) on the date such rate quotation is requested in the
case of outstanding Reference Rate Loans. Each such
notice and request from the Company, to be effective,
must be received by the Agent not later than 11:00 a.m.,
Chicago, Illinois time on the Banking Day such
conversion into or continuation of Quoted Rate Loans is
to occur. If such interest rate is satisfactory to the
Company an Authorized Corporate Official of the Company
shall, no later than 11:00 a.m. Chicago, Illinois time,
on such date, so indicate. Such indication by an
Authorized Corporate Official of the Company shall
constitute an irrevocable request that the requested
continuation of or conversion into Quoted Rate Loans be
consummated at the rate the Agent quoted or would have
quoted to the Company at the time of such indication of
acceptance, IT BEING understood that the Agent and the
Lenders do not guarantee that the interest rate quoted
with respect to a particular requested conversion of or
continuation into Quoted Rate Loans shall continue to be
available if such rate is not accepted by an Authorized
Corporate Official of the Company at the time of
quotation.
SECTION 2.5. CURRENCY EQUIVALENTS.
(a) EXCHANGE RATE. Whenever pursuant hereto the
Dollar Equivalent of an amount denominated in any
currency other than Dollars is to be determined as of a
date, such determination shall be made at the spot rate
at which the Agent offers to purchase such currency with
Dollars at approximately 10:00 am., Chicago, Illinois
time on such date. Whenever the equivalent in any
currency (other than Dollars) is to be determined as of
a date, such determination shall be made in accordance
with the preceding sentence, substituting such currency
in which such equivalent is being determined for
Dollars.
(b) DETERMINATION DATE. For purposes of determining
the commitment fee referred to in SECTION 3.3.1, the
outstanding balance of the Loans and the Commitment
Amount from time to time, the Dollar Equivalent of each
Loan then denominated in a currency other than Dollars
shall be determined as of each of the dates (a
"DETERMINATION DATE") as follows:
(i) the date ten (10) Banking Days prior
to each Quarterly Payment Date; and
(ii) the date four Banking Days prior to
each of the following dates (unless such of the
following dates is also a Quarterly Payment
Date):
(A) the date a Loan is made;
(B) the date a Eurodollar Rate Loan or
Eurocurrency Rate Loan is continued from the
current Interest Period of such Loan into a
subsequent Interest Period;
<PAGE>
(C) the date an outstanding Loan is
converted from one Type of Loan into another
Type of Loan; or
(D) the date the principal of a Loan,
or portion thereof, is paid or prepaid.
The Dollar Equivalent of any Loan, or portion thereof,
determined as of any Determination Date, shall be deemed
to remain unchanged from such determination until the
next succeeding Determination Date.
SECTION 2.6. FUNDING. As to any Eurodollar Rate Loan or Eurocurrency
Rate Loan each Lender may, if it so elects, fulfill its obligation to make,
continue or convert such Fixed Rate Loans hereunder by causing one of its
foreign branches or Related Parties (or an international banking facility
created by such Lender) to make or maintain such Fixed Rate Loan; PROVIDED,
HOWEVER, that such Fixed Rate Loan shall nonetheless be deemed to have been made
and to be held by such Lender, and the obligation of the applicable Borrower to
repay such Fixed Rate Loan shall nevertheless be to such Lender for the account
of such foreign branch, Related Party or international banking facility. In
addition, each Borrower hereby consents and agrees that, for purposes of any
determination to be made for purposes of SECTIONS 4.1, 4.2, 4.3 or 4.5, it shall
be conclusively assumed that each Lender elected to fund all Eurodollar Rate
Loans and all Eurocurrency Rate Loans by purchasing Eurodollar deposits, or
deposits in the applicable Eurocurrency, in its Interbank Lending Office's
interbank eurocurrency market.
SECTION 2.7. NOTES. Each Lender's Loans to a Borrower under its
Commitment shall be evidenced by a Note made by such Borrower payable to the
order of such Lender in a maximum principal amount equal to such Lender's
Percentage of the original Commitment Amount. Each Borrower hereby irrevocably
authorizes each Lender to make (or cause to be made) appropriate notations on
the grid attached to such Lender's Note from such Borrower (or on any
continuation of such grid), which notations, if made, shall evidence, INTER
ALIA, the date of, the outstanding principal of, and the interest rate and
Interest Period applicable to the Loans evidenced thereby. Such notations shall
be conclusive and binding on each Borrower absent manifest error; PROVIDED,
HOWEVER, that the failure of any Lender to make any such notations shall not
limit or otherwise affect any Obligations of a Borrower or any other Obligor.
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. REPAYMENTS AND PREPAYMENTS. Each Borrower shall repay
in full the unpaid principal amount of each Loan made to such Borrower upon the
Stated Maturity Date therefor. Prior thereto, each Borrower
(a) may, from time to time on any Banking Day,
make a voluntary prepayment, in whole or in part, of the
outstanding principal amount of any Loans to such
Borrower; PROVIDED, HOWEVER, that
(i) any such prepayment shall be made PRO
RATA among Loans of the same Type and, if
applicable, having the same Interest Period, of
all Lenders;
<PAGE>
(ii) no such prepayment of any Fixed Rate
Loan may be made on any day other than the last
day of the Interest Period for such Loan;
(iii)all such voluntary prepayments shall
require at least three but no more than five
Banking Days' prior written notice to the Agent;
and
(iv) all such voluntary partial prepayments
shall be in an aggregate minimum amount of
$500,000 and an integral multiple of $500,000;
(b) shall, on each date when any reduction in the
Commitment Amount shall become effective, including
pursuant to SECTION 2.2.1, make a mandatory prepayment
of all Loans to such Borrower such that the aggregate
amount of prepayments made by all Borrowers shall be
equal to the excess, if any, of the aggregate,
outstanding principal amount of all Loans to all
Borrowers over the Commitment Amount as so reduced; and
(c) shall, immediately upon any acceleration of the
Stated Maturity Date of any Loans pursuant to SECTION
8.2 or SECTION 8.3, repay all Loans to such Borrower
unless, pursuant to SECTION 8.3, only a portion of such
Loans is so accelerated; and
(d) shall, if on any Determination Date, as a
result of an increase in the value of a Eurocurrency,
the aggregate Dollar Equivalent of the principal amount
of all outstanding Loans to all Borrowers exceeds the
Commitment Amount, on the last day of the Interest
Period during which such Determination Date occurs, make
a mandatory prepayment of the aggregate outstanding
Loans to such Borrower such that the aggregate amount of
prepayments made by all Borrowers shall be equal to the
LESSER of (i) the amount of such excess, and (ii) the
sum of (x) the amounts of the Reference Rate Loans
outstanding, plus (y) the amounts of the Fixed Rate
Loans outstanding to which such Interest Period is
applicable.
Each prepayment of any Loans made pursuant to this Section shall be without
premium or penalty, except as may be required by SECTION 4.5. No voluntary
prepayment of principal of any Loans shall cause a reduction in the Commitment
Amount.
SECTION 3.2. INTEREST PROVISIONS. Interest on the outstanding
principal amount of Loans shall accrue and be payable in accordance with this
SECTION 3.2.
SECTION 3.2.1. RATES.
(a) REFERENCE RATE LOANS. That portion of
the Loans maintained from time to time as a
Reference Rate Loans shall accrue and bear
interest until maturity at a rate per annum
equal to the Alternate Reference Rate from time
to time in effect.
<PAGE>
(b) EURODOLLAR RATE LOANS AND EUROCURRENCY
RATE LOANS. That portion of the Loans maintained
from time to time as a Eurodollar Rate Loans or
Eurocurrency Rate Loans shall accrue and bear
interest, during each Interest Period applicable
thereto, at a rate per annum equal to the sum of
the Interbank Rate (Reserve Adjusted) for such
Interest Period plus a margin of 0.25%.
(c) QUOTED RATE LOANS. That portion of the
Loans maintained from time to time as Quoted
Rate Loans shall accrue and bear interest,
during each Interest Period applicable thereto,
at a rate per annum equal to the Quoted Rate in
effect for such Interest Period.
SECTION 3.2.2. POST-MATURITY RATES. After the date
any principal amount of any Loan is due and payable
(whether on the Stated Maturity Date, upon acceleration
or otherwise), or after any other monetary Obligation of
any Borrower shall have become due and payable, each
Borrower shall pay, but only to the extent permitted by
law, interest (after as well as before judgment) on each
Loan to such Borrower at a rate per annum equal to the
greater of (a) two percent (2.0%) in excess of the rate
applicable to the unpaid amount of such Loan immediately
before it became due and (b) the Alternate Reference
Rate in effect from time to time plus a margin of two
percent (2.0%).
SECTION 3.2.3. PAYMENT DATES. Interest accrued on
each Loan shall be payable, without duplication:
(a) on the Stated Maturity Date therefor;
(b) on the date of any payment or
prepayment, in whole or in part, of principal
outstanding on such Loan as the result of a
reduction in the Commitment Amount pursuant to
SECTION 3.1(B);
(c) with respect to Reference Rate Loans,
on each Quarterly Payment Date occurring after
the Effective Date;
(d) with respect to Fixed Rate Loans, the
last day of each applicable Interest Period;
(e) with respect to any Reference Rate
Loans converted into Fixed Rate Loans on a day
when interest would not otherwise have been
payable pursuant to CLAUSE (C), on the date of
such conversion; and
(f) on that portion of any Loans the Stated
Maturity Date of which is accelerated pursuant
to SECTION 8.2 or SECTION 8.3, immediately upon
such acceleration.
Interest accrued on Loans or other monetary Obligations
arising under this Agreement or any other Loan Document
after the date such amount is due and payable (whether
on the Stated Maturity Date, upon acceleration or
otherwise) shall be payable upon demand.
<PAGE>
SECTION 3.3. FEES. The Company agrees to pay the fees set forth in
this SECTION 3.3. All such fees shall be non-refundable.
SECTION 3.3.1. FACILITY FEE. The Company agrees to
pay to the Agent for the account of each Lender, for the
period (including any portion thereof when its
Commitment is suspended by reason of any Borrower's
inability to satisfy any condition of ARTICLE V)
commencing on the Effective Date, a facility fee at
the rate of fifteen hundredths of one-percent (.15%) per
annum on such Lender's Percentage of the Commitment
Amount. Such facility fees shall be payable by the
Company in arrears on each Quarterly Payment Date,
commencing with the first such day following the
Amendment Effective Time, and on the Commitment
Termination Date for the period then ending.
SECTION 3.3.2. AGENT'S FEE. The Company agrees to
pay to the Agent for its own account, such
non-refundable fees as may be from time to time
separately agreed to between the Company and the Agent.
SECTION 3.4. COMPUTATION OF INTEREST AND FEES. All Fixed Rate Loans
shall bear interest from and including the first day of the applicable Interest
Period to (but not including) the last day of such Interest Period at the
interest rate determined as applicable to such Fixed Rate Loan. Interest on
each Reference Rate Loan, each Fixed Rate Loan and any fees, shall be computed
on the basis of a year consisting of 360 days and paid for actual days elapsed.
ARTICLE IV
CERTAIN INTEREST RATE AND OTHER PROVISIONS
SECTION 4.1. FIXED RATE LENDING UNLAWFUL. If any Lender shall
determine (which determination shall, upon notice thereof to the Company and the
Lenders, be conclusive and binding on all Borrowers) that the introduction of or
any change in or in the interpretation of any law makes it unlawful, or any
central bank or other governmental authority asserts that it is unlawful, for
such Lender to make, continue or maintain any Loan as, or to convert any Loan
into, a Fixed Rate Loan of a certain Type, the obligations of all Lenders to
make, continue, maintain or convert any such Loans shall, upon such
determination, forthwith be suspended until such Lender shall notify the Agent
that the circumstances causing such suspension no longer exist, and all Fixed
Rate Loans of such Type shall automatically convert into Reference Rate Loans
or, subject to compliance with the applicable provisions of SECTION 2.3,
another Type of Fixed Rate Loans, at the end of the then current Interest
Periods with respect thereto or sooner, if required by such law or assertion.
SECTION 4.2. DEPOSITS UNAVAILABLE. If the Agent shall have been
notified by any Lender that such Lender has determined that
(a) Dollar or Eurocurrency deposits, as the case
may be, in the relevant amount and for the relevant
Interest Period are not available to such Lender in its
relevant market; or
(b) by reason of circumstances affecting such
Lender's relevant market, adequate means do not exist
for ascertaining the interest rate applicable hereunder
to Fixed Rate Loans of a particular Type,
<PAGE>
then, upon notice from the Agent to the Company and the Lenders, the obligations
of all Lenders under SECTION 2.3 and SECTION 2.4 to make or continue any Loans
as, or to convert any Loans into, Fixed Rate Loans of such Type shall forthwith
be suspended until the Agent shall have been notified by the relevant Lender,
and the Agent shall have notified the Company and the Lenders, that the
circumstances causing such suspension no longer exist.
SECTION 4.3. INCREASED FIXED RATE LOAN COSTS, ETC. The Company
agrees to reimburse each Lender for any increase in the cost to such Lender of,
or any reduction in the amount of any sum receivable by such Lender in respect
of, making, continuing or maintaining (or of its obligation to make, continue or
maintain) any Loans as, or of converting (or of its obligation to convert) any
Loans into, Fixed Rate Loans. Such Lender shall promptly notify the Agent and
the Company in writing of the occurrence of any such event, such notice to
state, in reasonable detail, the reasons therefor and the additional amount
required fully to compensate such Lender for such increased cost or reduced
amount. Such additional amounts shall be payable by the Company directly to
such Lender within five days of its receipt of such notice, and such notice
shall, in the absence of manifest error, be conclusive and binding on the
Company.
SECTION 4.4. INCREASED CAPITAL COSTS WITH RESPECT TO COMMITMENTS. If
any change in, or the introduction, adoption, effectiveness, interpretation,
reinterpretation or phase-in of, any law or regulation, directive, guideline,
decision or request (whether or not having the force of law) of any court,
central bank, regulator or other governmental authority affects or would affect
the amount of capital required or expected to be maintained by any Lender or any
Person controlling such Lender, and such Lender determines (in its sole and
absolute discretion) that the rate of return on its or such controlling Person's
capital as a consequence of its Commitment or the Loans made by such Lender is
reduced to a level below that which such Lender or such controlling Person could
have achieved but for the occurrence of any such circumstance, then, in any such
case upon notice from time to time by such Lender to the Company the Company
agrees that it shall immediately pay directly to such Lender additional amounts
sufficient to compensate such Lender or such controlling Person for such
reduction in rate of return at the time suffered or incurred. A statement of
such Lender as to any such additional amount or amounts (including calculations
thereof in reasonable detail) shall, in the absence of manifest error, be
conclusive and binding on the Company. In determining such amount, such Lender
may use any reasonable method of averaging and attribution that it (in its sole
and absolute discretion) shall deem applicable.
SECTION 4.5. FUNDING LOSSES. In the event any Lender shall incur any
loss or expense (including any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to make, continue or maintain any portion of the principal amount of any Loan
as, or to convert any portion of the principal amount of any Loan into, a Fixed
Rate Loan) as a result of
(a) any conversion or repayment or prepayment of
the principal amount of any Fixed Rate Loans on a date
other than the scheduled last day of the Interest Period
applicable thereto, whether pursuant to SECTION 3.1 or
otherwise;
(b) any Loans not being made as Fixed Rate Loans
in accordance with the Borrowing Request therefor; or
(c) any Loans not being continued as, or converted
into, Fixed Rate Loans in accordance with the
Continuation/ Conversion Notice therefor,
<PAGE>
then, upon the written notice of such Lender to the Company (with a copy to the
Agent), the Company agrees that it shall, within five days of the Company's
receipt thereof, pay directly to such Lender such amount as will (in the
reasonable determination of such Lender) reimburse such Lender for such loss or
expense. Such written notice (which shall include calculations in reasonable
detail) shall, in the absence of manifest error, be conclusive and binding on
the Company.
SECTION 4.6. TAXES. All payments by each Borrower of principal of,
and interest on, the Loans and all other amounts payable hereunder shall be made
free and clear of and without deduction for any present or future income,
excise, stamp or franchise taxes and other taxes, fees, duties, withholdings or
other charges of any nature whatsoever imposed by any taxing authority, but
excluding franchise taxes and taxes imposed on or measured by any Lender's net
income or receipts (such non-excluded items being called "TAXES"). In the event
that any withholding or deduction from any payment to be made by a Borrower
hereunder is required in respect of any Taxes pursuant to any applicable law,
rule or regulation, then the Company will cause such Borrower to
(a) pay directly to the relevant authority the
full amount required to be so withheld or deducted;
(b) promptly forward to the Agent an official
receipt or other documentation satisfactory to the Agent
evidencing such payment to such authority; and
(c) pay to the Agent for the account of the Lenders
such additional amount or amounts as is necessary to
ensure that the net amount actually received by each
Lender will equal the full amount such Lender would have
received had no such withholding or deduction been
required; provided that, a Lender may, in its sole and
absolute discretion, and subject to the other
requirements of this sentence, return to such Borrower
an amount equal to the amount paid by such Borrower
pursuant to CLAUSE (A) in respect of amounts paid by
such Borrower under this Agreement for the account of
such Lender.
Moreover, if any Taxes are directly asserted against the Agent or any Lender
with respect to any payment received by the Agent or such Lender hereunder, the
Agent or such Lender may pay such Taxes and the Company agrees that it will
promptly pay such additional amounts (including any penalties, interest or
expenses) as is necessary in order that the net amount received by such Person
after the payment of such Taxes (including any Taxes on such additional amount)
shall equal the amount such Person would have received had not such Taxes been
asserted.
If any Borrower fail to pay any Taxes when due to the appropriate
taxing authority or fails to remit to the Agent, for the account of the
respective Lenders, the required receipts or other required documentary
evidence, the Company agrees to indemnify the Lenders for any incremental Taxes,
interest or penalties that may become payable by any Lender as a result of any
such failure. For purposes of this SECTION 4.6, a distribution hereunder by the
Agent or any Lender to or for the account of any Lender shall be deemed a
payment by the Company.
<PAGE>
Upon the request of the Company or the Agent, each Lender that is
organized under the laws of a jurisdiction other than the United States shall,
prior to the due date of any payments under the Notes, execute and deliver to
the Company and the Agent, on or about the first scheduled payment date in each
Fiscal Year, one or more (as the Company or the Agent may reasonably request)
United States Internal Revenue Service Forms 4224 or Forms 1001 or such other
forms or documents (or successor forms or documents), appropriately completed,
as may be applicable to establish the extent, if any, to which a payment to such
Lender is exempt from withholding or deduction of Taxes.
If a Lender receives a refund of any amount paid by a Borrower
pursuant to this Section in respect of amounts required to be withheld or
deducted from amounts due to such Lender under this Agreement and the other Loan
Documents, and if as a result of such Lender's receipt of such refund the net
amount received by such Lender exceeds the amount to which such Lender is
entitled under this Agreement and the other Loan Documents, such Lender shall
promptly pay to the Agent, for the account of such Borrower, the amount of such
excess.
SECTION 4.7. PAYMENTS, COMPUTATIONS, ETC. Unless otherwise expressly
provided, all payments by a Borrower pursuant to this Agreement, the Notes or
any other Loan Document shall be made by such Borrower to the Agent for the
account of each Lender in the amount of its Percentage thereof. All such
payments required to be made to the Agent shall be made, without setoff,
deduction or counterclaim, not later than 12:30 p.m., Chicago, Illinois time, on
the date due, in same day or immediately available funds, to such account as the
Agent shall specify from time to time by notice to the Company. Funds received
after that time shall be deemed to have been received by the Agent on the next
succeeding Banking Day. The Company hereby authorizes the Agent and the Agent
may, in its sole and absolute discretion, provide for the payment of any amounts
required to be paid in Dollars which are due under this Agreement or the other
Loan Documents, by debiting the Demand Deposit Account for the amount then due;
PROVIDED, however, that the failure of the Company to maintain sufficient
balances in the Demand Deposit Account to provide for such payment shall not
affect any Borrower's obligation to pay when due all amounts payable by such
Borrower hereunder or under any other Loan Document. The Agent shall remit to
each Lender, not later than 5:00 p.m. Chicago, Illinois time on the Banking Day
received (the Banking Day of receipt to be determined pursuant to this SECTION
4.7), same day funds in an amount equal to such Lender's share, if any, of such
payments received by the Agent from a Borrower for the account of such Lender.
Whenever any payment to be made shall otherwise be due on a day which is not a
Banking Day, such payment shall (except as otherwise required by CLAUSE (C) of
the definition of the term "INTEREST PERIOD" with respect to Eurodollar Rate
Loans or Eurocurrency Rate Loans) be made on the next succeeding Banking Day and
such extension of time shall be included in computing interest and fees, if any,
in connection with such payment.
SECTION 4.8. SHARING OF PAYMENTS. Except as contemplated by SECTION
4.7, if any Lender shall obtain any payment or other recovery (whether
voluntary, involuntary, by application of setoff or otherwise) on account of any
Loan (other than pursuant to the terms of SECTIONS 4.3, 4.4 and 4.5) in excess
of its PRO RATA share of payments then or therewith obtained by all Lenders,
such Lender shall purchase from the other Lenders such participations in Loans
made by them as shall be necessary to cause such purchasing Lender to share the
excess payment or other recovery ratably with each of them; PROVIDED, HOWEVER,
that if all or any portion of the excess payment or other recovery is thereafter
recovered from such purchasing Lender, the purchase shall be rescinded and each
Lender which has sold a participation to the purchasing Lender shall repay to
the purchasing Lender the purchase price to the ratable extent of such recovery
<PAGE>
together with an amount equal to such selling Lender's ratable share (according
to the proportion of
(a) the amount of such selling Lender's required
repayment to the purchasing Lender
TO
(b) the total amount so recovered from the
purchasing Lender)
of any interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. Each Borrower agrees that any Lender
so purchasing a participation from another Lender pursuant to this Section may,
to the fullest extent permitted by law, exercise all its rights of payment
(including pursuant to SECTION 4.9) with respect to such participation as fully
as if such Lender were the direct creditor of such Borrower in the amount of
such participation. If under any applicable bankruptcy, insolvency or other
similar law, any Lender receives a secured claim in lieu of a setoff to which
this Section applies, such Lender shall, to the extent practicable, exercise its
rights in respect of such secured claim in a manner consistent with the rights
of the Lenders entitled under this Section to share in the benefits of any
recovery on such secured claim.
SECTION 4.9. SETOFF. Each Lender shall, upon the occurrence of any
Default described in CLAUSES (A) through (D) of SECTION 8.1.9 with respect to
any Borrower or, with the consent of the Required Lenders, upon the occurrence
of any other Event of Default, have the right to appropriate and apply to the
payment of the Obligations owing to it (whether or not then due), any and all
balances, credits, deposits, accounts or moneys of such Borrower then or
thereafter maintained with such Lender; PROVIDED, HOWEVER, that any such
appropriation and application shall be subject to the provisions of SECTION 4.8.
Each Lender agrees promptly to notify the Company and the Agent after any such
setoff and application made by such Lender; PROVIDED, HOWEVER, that the failure
to give such notice shall not affect the validity of such setoff and
application. The rights of each Lender under this Section are in addition to
other rights and remedies (including other rights of setoff under applicable law
or otherwise) which such Lender may have.
SECTION 4.10. USE OF PROCEEDS. Each Borrower shall apply the proceeds
of each Borrowing for general corporate purchases and working capital purposes;
without limiting the foregoing, no proceeds of any Loan will be used to acquire
any equity security of a class which is registered pursuant to Section 12 of the
Securities Exchange Act of 1934 or any "margin stock", as defined in F.R.S.
Board Regulation U, if such acquisition would violate or cause any Lender to
violate such Regulation U.
SECTION 4.11. CURRENCY INDEMNIFICATION. The obligation of any
Borrower to make payments hereunder in the currencies specified in Article III
shall not be discharged as satisfied by any tender or recovery which is
expressed in any other currencies except to the extent that such tender or
recovery shall result in the actual receipt by the Lenders of the full amount in
the currencies so specified payable hereunder. The Borrowers obligations to make
payments in the currencies so specified shall be enforceable as an alternative
or additional cause of action for the purpose of recovery in such currencies of
the amount, if any, by which such actual receipt shall fall short of the full
amount in such currencies payable hereunder, and shall not be affected by
judgment being obtained for any sums due hereunder.
<PAGE>
Without limiting the generality of the previous paragraph, the
Company agrees to indemnify each Lender against any loss incurred by it as a
result of any judgment or order being given or made for the payment of any
Indebtedness hereunder and such judgment or order being expressed in a currency
other than the currency of the Indebtedness hereunder and as a result of any
variation having occurred in rates of exchange between the date of any such
amount becoming due hereunder and the date of actual payment thereof. The
foregoing indemnity shall constitute a separate and independent obligation and
shall apply irrespective of any indulgence granted from time to time and shall
continue in full force and effect notwithstanding any such judgment or order as
aforesaid.
ARTICLE V
CONDITIONS TO BORROWING
SECTION 5.1. INITIAL BORROWING OF THE COMPANY. The effectiveness of
this amendment and restatement shall be subject to the prior or concurrent
satisfaction of each of the conditions precedent set forth in this SECTION 5.1.
The obligations of the Lenders to fund an initial Borrowing of the Company shall
be subject to the prior or concurrent satisfaction of each of the conditions
precedent set forth in this SECTION 5.1, in addition to the applicable
conditions precedent set forth in SECTION 5.3.
SECTION 5.1.1. RESOLUTIONS, ETC. The Agent shall
have received from the Company, in sufficient number of
counterpart originals to provide one to each Lender, a
certificate, dated the date of the initial Borrowing, of
its Secretary or Assistant Secretary as to
(a) resolutions of its Board of Directors
then in full force and effect authorizing the
execution, delivery and performance of this
Agreement and the Notes and authorizing the
borrowings hereunder and each other Loan
Document to be executed by it;
(b) all documents evidencing other
corporate action necessary for the execution,
delivery and performance of any Loan Document;
(c) all approvals or consents, if any,
with respect to this Agreement and the Notes;
and
(d) the incumbency and signatures of those
of its officers authorized to sign to this
Agreement, the Notes and each other Loan
Document executed by it,
upon which certificate each Lender may conclusively rely
until it shall have received a further certificate of
the Secretary of the Company canceling or amending such
prior certificate.
SECTION 5.1.2. DELIVERY OF NOTES. The Agent shall
have received, for the account of each Lender, the Notes
of the Company duly executed and delivered by the
Company.
<PAGE>
SECTION 5.1.3. PAYMENT OF OUTSTANDING
INDEBTEDNESS, ETC. All Indebtedness identified in ITEM
7.2.2(B) of the Disclosure Schedule together with all
interest, all prepayment premiums and other amounts due
and payable with respect thereto, shall have been paid
in full (including, to the extent necessary, from
proceeds of the initial Borrowing); and all Liens, if
any, securing payment of any such Indebtedness have been
released and the Agent shall have received all Uniform
Commercial Code Form UCC-3 termination statements or
other instruments as may be suitable or appropriate in
connection therewith.
SECTION 5.1.4. OPINIONS OF COUNSEL. The Agent shall
have received, in sufficient number of counterpart
originals to provide one to each Lender, an opinion
addressed to the Agent and all Lenders, from Gardner,
Carton & Douglas, counsel to the Company, substantially
in the form of EXHIBIT I hereto;
SECTION 5.1.5. EXPENSES, ETC. The Agent shall have
received for its own account all reasonable fees, costs
and expenses due and payable pursuant to SECTION 10.3,
if then invoiced.
SECTION 5.2. INITIAL BORROWING OF A DESIGNATED SUBSIDIARY. The
obligations of the Lender to fund an initial Borrowing of any Designated
Subsidiary shall be subject to the prior or concurrent satisfaction of each of
the conditions precedent in this SECTION 5.2., in addition to the applicable
conditions precedent set forth in SECTIONS 5.1 and 5.3.
SECTION 5.2.1. DESIGNATION LETTER. The Agent shall
have received, in sufficient number of counterpart
originals to provide one to each Lender, a Designation
Letter for such Designated Subsidiary.
SECTION 5.2.2. NOTES. The Agent shall have
received, for the account of each Lender, the Notes
of such Designated Subsidiary, duly executed and
delivered by such Designated Subsidiary.
SECTION 5.2.3. AUTHORIZATIONS AND APPROVALS. The
Agent shall have received authenticated copies of all
such governmental authorizations, consents, approvals,
and licenses as may be required under applicable law and
regulations for each Borrower then borrowing to make and
perform this Agreement and the Notes and to borrow and
(in the case of the Company) guaranty Loans hereunder.
SECTION 5.2.4. GUARANTY. The Agent shall have
received, in sufficient number of counterpart originals
to provide one to each Lender, a Guaranty, duly executed
by the Company, of the obligations of such Designated
Subsidiary under this Agreement and the Notes of such
Designated Subsidiary.
<PAGE>
SECTION 5.2.5. RESOLUTIONS. The Agent shall have
received a copy, duly certified by the Designated
Subsidiary's secretary or an assistant secretary and in
sufficient number of counterpart originals to provide
one to each Lender, of (i) the resolutions of the
Designated Subsidiary's Board of Directors authorizing
the execution and delivery of the Designation Letter and
the Note of such Designated Subsidiary and authorizing
the borrowings thereunder, (ii) all documents evidencing
other necessary corporate action, and (iii) all
approvals or consents, if any, with respect to the
Designation Letter and such Designated Subsidiary's
Note.
SECTION 5.2.6. INCUMBENCY. The Agent shall have
received, in sufficient number of counterpart originals
to provide one to each Lender a certificate of the
Designated Subsidiary's secretary, assistant secretary
or manager certifying the names of the Designated
Subsidiary's officers authorized to sign the Designation
Letter, the Note of such Designated Subsidiary and all
other documents or certificates to be delivered to the
Agent or any Lender, together with the true signatures
of such officers.
SECTION 5.3. ALL BORROWINGS. The obligation of each Lender to fund
any Loan on the occasion of any Borrowing (including the initial Borrowing)
shall be subject to the satisfaction of each of the conditions precedent set
forth in this SECTION 5.3.
SECTION 5.3.1. COMPLIANCE WITH WARRANTIES, NO
DEFAULT, ETC. Both before and after giving effect to
any Borrowing the following statements shall be true and
correct and certified as such by a certificate of the
president, chief financial officer (or, if none, the
chief financial Authorized Corporate Officer) of the
Company delivered by the Company to the Agent:
(a) the representations and warranties set
forth in ARTICLE VI (excluding, however, those
contained in SECTION 6.6, 6.7, 6.8 and 6.9)
shall be true and correct with the same effect
as if then made (unless stated to relate solely
to an earlier date, in which case such
representations and warranties shall be true and
correct as of such earlier date) except for such
changes as are specifically permitted hereunder;
(b) except as disclosed by the Company to
the Agent and the Lenders pursuant to SECTION
6.7
(i) no labor controversy,
litigation, arbitration or governmental
investigation or proceeding shall be
pending or, to the knowledge of the
Company, threatened against the Company
or any of its Subsidiaries which might
reasonably be expected to materially
adversely affect the Company's
consolidated business, operations,
assets, revenues, properties or
<PAGE>
prospects or which purports to affect
the legality, validity or
enforceability of this Agreement, the
Notes or any other Loan Document; and
(ii) no development shall have
occurred in any labor controversy,
litigation, arbitration or governmental
investigation or proceeding disclosed
pursuant to SECTION 6.7 which might
reasonably be expected to materially
adversely affect the consolidated
businesses, operations, assets,
revenues, properties or prospects of
the Company and its Subsidiaries;
(c) no Default shall have then occurred and
be continuing, and neither the Company nor any
of its Subsidiaries are in material violation of
any law or governmental regulation or court
order or decree.
SECTION 5.3.2 BORROWING REQUEST. The Agent shall
have received a request for such Borrowing in accordance
with SECTION 2.3. Each of the request for a Borrowing
and the acceptance by such Borrower of the proceeds of
such Borrowing shall constitute (a) a representation and
warranty by the Company and such Borrower that on the
date of such Borrowing (both immediately before and
after giving effect to such Borrowing and the
application of the proceeds thereof) the statements made
in SECTION 5.3.1 are true and correct and (b) the
certification required by such section.
SECTION 5.3.3 INSURANCE. There shall have been no
material change, or notice of prospective material
change in the nature, extent, scope or cost of the
insurance referred to in SECTION 6.12 which change would
have a material adverse effect on the financial
condition of the Company and its Subsidiaries on a
consolidated basis or would significantly adversely
affect the Company's or any other Borrower's ability to
perform its obligations under this Agreement or under
any Note.
SECTION 5.3.4 FORM U-1. At any time at which the
current value of the margin stock owned by any Borrower
exceeds 25% of the value of such Borrower's assets which
may not be pledged or made subject to a Lien pursuant to
the terms hereof, such Borrower shall have delivered to
the Agent with each request for a Borrowing for such
Borrower, a statement for such Borrower in conformity
with the requirements of Federal Reserve Form U-1
referred to in Regulation U of the F.R.S. Board.
SECTION 5.3.5 SATISFACTORY LEGAL FORM. All
documents executed or submitted pursuant hereto by or on
behalf of the Company, any other Borrower, any of the
Company's Subsidiaries or any other Obligors shall be
satisfactory in form and substance to the Agent and its
counsel; the Agent and its counsel shall have received
all information, approvals, opinions, documents or
instruments as the Agent or its counsel may reasonably
request.
<PAGE>
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders and the Agent to enter into this
Agreement and to make Loans hereunder, the Company represents and warrants unto
the Agent and each Lender as set forth in this ARTICLE VI.
SECTION 6.1. ORGANIZATION, ETC. The Company and each of its
Subsidiaries is a corporation validly organized and existing and in good
standing under the laws of the jurisdiction of its incorporation or formation
and is duly qualified to do business and is in good standing as a foreign
corporation in each jurisdiction where the nature of its business requires such
qualification, except such jurisdictions where failure to so qualify and be in
good standing is not reasonably likely to have a material adverse effect on the
operations or financial condition of the Company and its Subsidiaries taken as a
whole. The Company has, and each Subsidiary upon becoming a Designated
Subsidiary will have, full power and authority and holds, and will hold, all
requisite governmental consents and other approvals to enter into, deliver and
perform its Obligations under this Agreement, its Notes and each other Loan
Document to which it is a party and to own and hold under lease its property and
to conduct its business substantially as currently conducted by it.
SECTION 6.2. DUE AUTHORIZATION, NON-CONTRAVENTION, ETC. The
execution, delivery and performance by the Company of this Agreement, the Notes
and each other Loan Document executed or to be executed by it and the execution,
delivery and performance by each Designated Subsidiary or other Obligor of each
Loan Document executed or to be executed by it are within the Company's and each
such Designated Subsidiary's or other Obligor's corporate powers, have been duly
authorized by all necessary corporate action, and do not
(a) contravene the Company's, any Designated
Subsidiary's or any such other Obligor's Organic
Documents;
(b) contravene any contractual restriction, law or
governmental regulation or court decree or order binding
on the Company, any such Designated Subsidiary or any
such other Obligor; or
(c) result in, or require the creation or
imposition of, any Lien on any of the Company's, any
Designated Subsidiary's or any other Obligor's
properties.
SECTION 6.3. GOVERNMENT APPROVAL, REGULATION, ETC. The Company and
its Subsidiaries are in material compliance with all statutes and governmental
rules and regulations applicable to them and no authorization or approval or
other action by, and no notice to or filing with, any governmental authority or
regulatory body or other Person is required for the due execution, delivery or
performance by the Company, any Designated Subsidiary or any other Obligor of
this Agreement, the Notes or any other Loan Document to which it is a party.
Neither the Company nor any of its Subsidiaries is an "investment company"
within the meaning of the Investment Company Act of 1940, as amended, or a
"holding company", or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company", within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
<PAGE>
SECTION 6.4. VALIDITY, ETC. This Agreement constitutes, and the Notes
and each other Loan Document executed by the Company, on the due execution and
delivery thereof, constitute, the legal, valid and binding obligations of the
Company, enforceable in accordance with their respective terms, except as
enforceability may be limited by bankruptcy, insolvency or other similar laws of
general application affecting the enforcement of creditors' rights or by general
principles of equity limiting the availability of equitable remedies; and each
Loan Document executed pursuant hereto by each Designated Subsidiary or other
Obligor will, on the due execution and delivery thereof by such Designated
Subsidiary or other Obligor, be the legal, valid and binding obligation of such
Designated Subsidiary or other Obligor enforceable in accordance with its terms,
with like exception.
SECTION 6.5. FINANCIAL INFORMATION. The audited consolidated balance
sheets of the Company and its Subsidiaries as at September 30, 1996 and the
unaudited consolidated balance sheets of the Company and its Subsidiaries as at
March 31, 1997, and the related statements of earnings and cash flow of the
Company and each of its Subsidiaries, copies of which have been furnished to the
Agent and each Lender, have been prepared in accordance with GAAP consistently
applied, and present fairly the consolidated financial condition of the
corporations covered thereby as at the dates thereof and the results of their
operations for the periods then ended.
SECTION 6.6. NO MATERIAL ADVERSE CHANGE. Since the dates of the
financial statements described in SECTION 6.5, there has been no material
adverse change in the financial condition, operations, assets, business,
properties or prospects of the Company and its Subsidiaries taken as a whole.
SECTION 6.7. LITIGATION, LABOR CONTROVERSIES, ETC. There is no
pending or, to the knowledge of the Company, threatened litigation, action or
proceeding against the Company or any of its Subsidiaries or labor controversy
involving the Company or any of its Subsidiaries or any of their respective
properties, which might reasonably be expected to materially adversely affect
the financial condition, operations, assets, business, properties or prospects
of the Company and its Subsidiaries taken as a whole or which purports to affect
the legality, validity or enforceability of this Agreement, the Notes or any
other Loan Document, except as disclosed in ITEM 6.7 ("Litigation") or ITEM 6.14
("Environmental Matters") of the Disclosure Schedule.
SECTION 6.8. SUBSIDIARIES. The Company has no Subsidiaries, except
those Subsidiaries
(a) which are identified in ITEM 6.8 ("EXISTING
SUBSIDIARIES") of the Disclosure Schedule; or
(b) which are permitted to have been acquired after
the Effective Date in accordance with SECTION 7.2.5.
SECTION 6.9. PARTNERSHIPS; JOINT VENTURES. Neither the Company nor
any of its Subsidiaries is a partner or a joint venturer in any partnership or
joint venture other than the partnerships and joint ventures which are
identified in ITEM 6.9 ("Partnerships and Joint Ventures") of the Disclosure
Schedule.
SECTION 6.10. OWNERSHIP OF PROPERTIES. The Company and each of its
Subsidiaries owns good and marketable title to all of its properties and assets,
real and personal, tangible and intangible, of any nature whatsoever (including
patents, trademarks, trade names, service marks and copyrights), free and clear
of all Liens, charges or claims (including infringement claims with respect to
patents, trademarks, copyrights and the like) except as permitted pursuant to
SECTION 7.2.2.
<PAGE>
SECTION 6.11. TAXES. The Company and each of its Subsidiaries has
filed all tax returns and reports required by law to have been filed by it and
have paid all taxes and governmental charges thereby shown to be owing, except
any such taxes or charges which are being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance with GAAP
shall have been set aside on its books.
SECTION 6.12. INSURANCE. The Company and each of its Subsidiaries
maintain insurance, including self-insurance, to such extent and against such
hazards and liabilities as is commonly maintained by companies similarly
situated.
SECTION 6.13. PENSION AND WELFARE PLANS. During the twelve-
consecutive-month period prior to the date of the execution and delivery of this
Agreement and prior to the date of any Borrowing hereunder, no Reportable Event
has occurred, no steps have been taken by the PBGC, the Company or an ERISA
Affiliate to terminate or withdraw from any Pension Plan, and no contribution
failure has occurred with respect to any Pension Plan sufficient to give rise to
a Lien under section 302(f) of ERISA. No condition exists or event or
transaction has occurred with respect to any Pension Plan which might result in
the incurrence by the Company or any ERISA Affiliate of any material liability,
fine or penalty. Except as disclosed in ITEM 6.13 ("Employee Benefit Plans") of
the Disclosure Schedule, neither the Company nor any ERISA Affiliate has any
contingent liability with respect to any post-retirement benefit under a Welfare
Plan, other than liability for continuation coverage described in Part 6 of
Title I of ERISA.
SECTION 6.14. ENVIRONMENTAL WARRANTIES.
(a) Except as set forth in ITEM 6.14
("ENVIRONMENTAL MATTERS") of the Disclosure Schedule,
all facilities and property (including underlying
groundwater) owned or leased by the Company or any of
its Subsidiaries have been, and continue to be, owned or
leased by the Company and its Subsidiaries in material
compliance with all Environmental Laws.
(b) Except as set forth in ITEM 6.14
("ENVIRONMENTAL MATTERS") of the Disclosure Schedule,
there have been no past, and there are no pending or, to
the Company's knowledge, threatened
(i) claims, complaints, notices or requests
for information received by the Company or any
of its Subsidiaries with respect to any alleged
violation of any Environmental Law, or
(ii) complaints, notices or inquiries to
the Company or any of its Subsidiaries regarding
potential liability under any Environmental Law
which might reasonably be expected to materially
adversely affect the financial condition, operations,
assets, business, properties or prospects of the Company
and its Subsidiaries taken as a whole.
<PAGE>
(c) Except as set forth in ITEM 6.14
("ENVIRONMENTAL MATTERS") of the Disclosure Schedule,
there have been no Releases of Hazardous Materials at,
on or under any property now or previously owned or
leased by the Company or any of its Subsidiaries that,
singly or in the aggregate, have resulted in, or may
reasonably be expected to result in, the incurrence by
the Company or any of its Subsidiaries of an expense,
liability, fine or penalty in an amount which might
reasonably be expected to materially adversely affect
the operations or financial condition of the Company and
its Subsidiaries taken as a whole.
(d) Except as set forth in ITEM 6.14
("ENVIRONMENTAL MATTERS") of the Disclosure Schedule,
the Company and its Subsidiaries have been issued and
are in compliance with all permits, certificates,
approvals, licenses and other authorizations relating to
environmental matters and necessary for their businesses
except where failure to so comply is not reasonably
likely to have a material adverse effect on the
operations or financial condition of the Company and its
Subsidiaries taken as a whole.
(e) Except as set forth in ITEM 6.14
("ENVIRONMENTAL MATTERS") of the Disclosure Schedule, no
property now or previously owned or leased by the
Company or any of its Subsidiaries is listed on the
National Priorities List pursuant to CERCLA, on the
CERCLIS, or on any similar state list of sites requiring
investigation or clean-up.
(f) Except as set forth in ITEM 6.14
("ENVIRONMENTAL MATTERS") of the Disclosure Schedule,
there are no underground storage tanks, active or
abandoned, including petroleum storage tanks, on or
under any property now or previously owned or leased by
the Company or any of its Subsidiaries that, singly or
in the aggregate, have resulted in, or may reasonably be
expected to result in, the incurrence by the Company or
any of its Subsidiaries of an expense, liability, fine
or penalty in an amount which might reasonably be
expected to materially adversely affect the operations
or financial condition of the Company and its
Subsidiaries taken as a whole.
(g) Except as set forth in ITEM 6.14
("ENVIRONMENTAL MATTERS") of the Disclosure Schedule,
neither the Company nor any of its Subsidiaries has
directly transported or directly arranged for the
transportation of any Hazardous Material to any location
which is listed on the National Priorities List pursuant
to CERCLA, on the CERCLIS, or on any similar state list
or which is the subject of federal, state or local
enforcement actions or other investigations which has
resulted in or may reasonably be expected to result in
claims against the Company or such Subsidiary for any
remedial work, damage to natural resources or personal
injury, including claims under CERCLA, in an amount
which might reasonably be expected to materially
adversely affect the operations or financial condition
of the Company and its Subsidiaries taken as a whole.
<PAGE>
(h) Except as set forth in ITEM 6.14
("ENVIRONMENTAL MATTERS") of the Disclosure Schedule,
there are no polychlorinated biphenyls or friable
asbestos present at any property now or previously owned
or leased by the Company or any Subsidiary of the
Company that, singly or in the aggregate, have resulted
in, or may reasonably be expected to result in, the
incurrence by the Company or any of its Subsidiaries of
an expense, liability, fine or penalty in an amount
which might reasonably be expected to materially
adversely affect the operations or financial condition
of the Company and its Subsidiaries taken as a whole.
SECTION 6.15. REGULATIONS G, U AND X. The Company is not engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of, purchasing or carrying margin stock, and no proceeds
of any Loans will be used for a purpose which violates, or would be inconsistent
with, F.R.S. Board Regulation G, U or X. As of the date of the initial Borrowing
and after giving effect to the intended application of the proceeds of each
Borrowing thereafter, the current value of the margin stock owned by the Company
at such time does not exceed 25% of the value of the Company's assets which may
not be pledged or made subject to any Lien pursuant to this Agreement. Terms for
which meanings are provided in F.R.S. Board Regulation G, U or X or any
regulations substituted therefor, as from time to time in effect, are used in
this Section with such meanings.
SECTION 6.16. ACCURACY OF INFORMATION. All factual information
heretofore or contemporaneously furnished by or on behalf of the Company in
writing to the Agent or any Lender for purposes of or in connection with this
Agreement or any transaction contemplated hereby taken together does not, and
all other such factual information hereafter furnished by or on behalf of the
Company to the Agent or any Lender taken together will not, on the date as of
which such information is dated or certified, contain any untrue statement of a
material fact or omit a material fact necessary to make the factual information
contained therein not misleading in light of the circumstances in which it was
provided.
ARTICLE VII
COVENANTS
SECTION 7.1. AFFIRMATIVE COVENANTS. The Company agrees with the Agent
and each Lender that, until all Commitments have terminated and all Obligations
have been paid and performed in full, the Company will perform the obligations
set forth in this SECTION 7.1.
SECTION 7.1.1. FINANCIAL INFORMATION, REPORTS,
NOTICES, ETC . The Company will furnish, or will cause
to be furnished, to each Lender and the Agent copies of
the following financial statements, reports, notices and
information:
(a) as soon as available and in any event
within 60 days after the end of each of the
first three Fiscal Quarters of each Fiscal Year
of the Company, consolidated balance sheets of
the Company and its Subsidiaries as of the end
<PAGE>
of such Fiscal Quarter and consolidated
statements of earnings and cash flow of the
Company and its Subsidiaries for such Fiscal
Quarter and for the period commencing at the end
of the previous Fiscal Year and ending with the
end of such Fiscal Quarter, certified by the
chief financial officer or treasurer (or, if
none, the chief financial Authorized Corporate
Officer) of the Company;
(b) as soon as available and in any event
within 120 days after the end of each Fiscal
Year of the Company, a copy of the annual audit
report for such Fiscal Year for the Company and
its Subsidiaries, including therein consolidated
balance sheets of the Company and its
Subsidiaries as of the end of such Fiscal Year
and consolidated statements of earnings and cash
flow of the Company and its Subsidiaries for
such Fiscal Year, in each case certified
(without any Impermissible Qualification) in a
manner acceptable to the Agent and the Required
Lenders by independent public accountants of
recognized national standing or other
independent public accountants acceptable to the
Agent and the Required Lenders;
(c) as soon as available and in any event
within 60 days after the end of each Fiscal
Quarter (except the last Fiscal Quarter of each
Fiscal Year) and within 120 days after the end
of each Fiscal Year, a certificate, executed by
the chief financial officer or treasurer (or, if
none, the chief financial Authorized Corporate
Officer) of the Company, showing (in reasonable
detail and with appropriate calculations and
computations in all respects satisfactory to the
Agent) compliance with the financial covenants
set forth in SECTIONS 7.2.3 and 7.2.8 and
stating that no Default has occurred and is
continuing or, if there is any such Default, a
statement setting forth details of such Default
and the action which the Company has taken and
proposes to take with respect thereto;
(d) together with the information referred
to in PARAGRAPH (B) above, a report from an
Authorized Corporate Officer (i) setting forth
any changes in the identity of the Company's
Subsidiaries, joint ventures or partnerships
identified in ITEM 6.9 of the Disclosure
Schedule and, in the case of new Subsidiaries,
joint ventures or partnerships, describing the
nature and percentage ownership interest therein
of the Company and its Subsidiaries, (ii)
describing any change in the nature and extent
of the ownership interest in any of the
Company's Subsidiaries, joint ventures or
partnerships and (iii) to the extent not
previously identified, indicating each
Subsidiary of the Company having a Consolidated
Total Assets equal to or greater than 50% of the
Company's Consolidated Total Assets;
<PAGE>
(e) together with the certificate referred
to in PARAGRAPH (C) above, (x) the occurrence of
any materially adverse development of which the
Company has become aware with respect to any
litigation, action, proceeding, or labor
controversy described in SECTION 6.7, (y) the
commencement of any material labor controversy,
litigation, action, proceeding of which the
Company has become aware, of the type described
in SECTION 6.7, or (z) the occurrence of a
Default, notice thereof and, with respect to a
Default, the steps being taken by the Company or
the Subsidiary, as the case may be, affected
with respect thereto, from an Authorized
Corporate Officer;
(f) promptly after the sending or filing
thereof, copies of all reports which the Company
sends to its equity securityholders, and all
reports and registration statements (other than
S-8 registration statements) which the Company
or any of its Subsidiaries files with the
Securities and Exchange Commission or any
national securities exchange;
(g) promptly after becoming aware of the
institution of any steps by the Company, the
PBGC or any ERISA Affiliate to terminate any
Pension Plan, or the failure to make a required
contribution to any Pension Plan if such failure
is sufficient to give rise to a Lien under
section 302(f) of ERISA, or the taking of any
action with respect to a Pension Plan which
could result in the requirement that the Company
furnish a bond or other security to the PBGC or
such Pension Plan, or the occurrence of any
event with respect to any Pension Plan which
could result in the incurrence by the Company of
any material liability, fine or penalty, or any
material increase in the contingent liability of
the Company with respect to any post-retirement
Welfare Plan benefit, notice thereof and copies
of all documentation relating thereto;
(h) within five days of any purchase of any
"margin stock" as defined in Regulation U of the
F.R.S. Board, a written report in the form set
forth as EXHIBIT G hereto of the amount and type
of any margin stock so purchased;
(i) as soon as available and in any event
within five days after the effective date
thereof, a written report of any written
amendment of or waiver with respect to the
Senior Note Agreements, together with a copy of
the relevant document(s) evidencing such
amendment or waiver; and
(j) such other information respecting the
condition or operations, financial or otherwise,
of the Company or any of its Subsidiaries, or
the Company's or any other Borrower's compliance
with this Agreement, as any Lender through the
Agent may from time to time reasonably request.
<PAGE>
SECTION 7.1.2. COMPLIANCE WITH LAWS, ETC. The
Company will, and will cause each of its Subsidiaries
to, comply in all material respects with all applicable
laws, rules, regulations and orders, such compliance to
include (without limitation):
(a) except as otherwise permitted by
SECTION 7.2.8, the maintenance and preservation
of its and each Subsidiary's respective
existence and all rights, privileges, licenses,
patents, patent rights, copyrights, trademarks,
trade names, franchises and other authority
necessary for the conduct of their respective
businesses in the ordinary course as conducted
from time to time; and
(b) the payment, before the same become
delinquent, of all taxes, assessments,
governmental charges or levies imposed upon it
or upon its property, franchises or assets
except to the extent (i) being diligently
contested in good faith by appropriate
proceedings and for which adequate reserves in
accordance with GAAP shall have been set aside
on its books or (ii) failure to so pay would
neither (A) have a material adverse effect on
the operations or financial condition of the
Company and its Subsidiaries taken as a whole
nor (B) otherwise result in the occurrence of a
Default.
SECTION 7.1.3. INSURANCE. The Company will,
and will cause each of its Subsidiaries to, maintain or
cause to be maintained insurance with respect to its
properties and business (including business interruption
insurance) against such casualties and contingencies and
of such types and in such amounts as is customary in the
case of similar businesses. Nothing contained in this
SECTION 7.1.3 shall preclude the Company and its
Subsidiaries from maintaining self-insurance and
co-insurance to the extent that such self-insurance and
co-insurance would not have a material adverse effect on
the operations or financial condition of the Company and
its Subsidiaries taken as a whole.
SECTION 7.1.4. ENVIRONMENTAL COVENANT. The
Company will, and will cause each of its Subsidiaries
to,
(a) use and operate all of its facilities
and properties in material compliance with all
Environmental Laws, keep all necessary permits,
approvals, certificates, licenses and other
authorizations relating to environmental matters
in effect and remain in material compliance
therewith, and handle all Hazardous Materials in
material compliance with all applicable
Environmental Laws; and
<PAGE>
(b) immediately notify the Agent and
provide copies upon receipt of all written
claims, complaints, notices or inquiries
relating to the condition of its facilities and
properties or compliance with Environmental Laws
if such condition may reasonably be expected to
result in the incurrence by the Company or any
of its Subsidiaries of an expense, liability,
fine or penalty in an amount which might
reasonably be expected to materially adversely
affect the operations or financial condition of
the Company and its Subsidiaries taken as a
whole.
SECTION 7.2. NEGATIVE COVENANTS. The Company agrees with the Agent
and each Lender that, until all Commitments have terminated and all Obligations
have been paid and performed in full, the Company will perform the obligations
set forth in this SECTION 7.2.
SECTION 7.2.1. LIENS. The Company will not, and
will not permit any of its Subsidiaries to, create,
incur, assume or suffer to exist any Lien upon any of
its property, revenues or assets (other than capital
stock of the Company held as treasury stock), whether
now owned or hereafter acquired, except, without
duplication:
(a) Liens granted to the Agent or any
Lender under this Agreement or any other Loan
Document;
(b) Liens outstanding on the Effective
Date and listed on ITEM 7.2.1 to the Disclosure
Schedule or disclosed in the financial
statements referred to in SECTION 6.5;
(c) Liens securing the Indebtedness of a
Subsidiary of the Company to the Company or to
another such Subsidiary;
(d) Liens granted or incurred after the
Effective Date to secure the payment of the
purchase price or construction costs incurred in
connection with the acquisition or construction
by the Company or any of its Subsidiaries of
fixed assets useful and intended to be used in
carrying on the business of the Company or one
of its Subsidiaries, including Liens existing on
such fixed assets at the time of acquisition or
construction thereof or at the time of
acquisition by the Company or one of its
Subsidiaries of any business entity then owning
such fixed assets, whether or not such existing
Liens were given to secure the payment of the
purchase price or construction costs of the
fixed assets to which they attach, so long as
they were not incurred, extended or renewed in
contemplation of such acquisition or
construction; PROVIDED, that (i) the Lien shall
attach solely to the fixed assets acquired,
<PAGE>
constructed or purchased, (ii) at the time of
the acquisition, construction or purchase of
such fixed assets, the aggregate amount
remaining unpaid on all Indebtedness secured by
Liens on such fixed assets, whether or not
assumed by the Company or one of its
Subsidiaries, shall not exceed an amount equal
to the lesser of (x) the total purchase price or
construction costs, as applicable, thereof or
(y) the fair market value thereof at the time of
acquisition, construction or purchase (as
determined in good faith by the Board of
Directors of the Company), and (iii) immediately
before and after the granting or incurring of
any such Lien no Default exists which is
continuing;
(e) Liens for taxes, assessments or other
governmental charges or levies not at the time
delinquent or thereafter payable without penalty
or being diligently contested in good faith by
appropriate proceedings and for which adequate
reserves in accordance with GAAP shall have been
set aside on its books;
(f) Liens of carriers, warehousemen,
mechanics, materialmen and landlords incurred in
the ordinary course of business for sums not
overdue for a period of more than 30 days or
being diligently contested in good faith by
appropriate proceedings and for which adequate
reserves in accordance with GAAP shall have been
set aside on its books;
(g) Liens incurred in the ordinary course
of business in connection with workmen's
compensation, unemployment insurance or other
forms of governmental insurance or benefits, or
to secure performance of tenders, statutory
obligations, leases and contracts (other than
for borrowed money) entered into in the ordinary
course of business or to secure obligations on
surety or appeal bonds;
(h) Liens other than Liens excepted by
CLAUSES (A) through (G) above securing an
aggregate amount of Indebtedness not exceeding
10% of the Company's Consolidated Total
Capitalization; and
(i) any renewal or extension of any Lien
permitted by the foregoing CLAUSES (B), (D) or
(H) of this Section with extension, refunding or
refinancing of the Indebtedness secured thereby
made without increase in the then outstanding
principal amount thereof and as long as
immediately before and after any such extension,
refunding or refinancing of Indebtedness no
Default exists which is continuing.
<PAGE>
SECTION 7.2.2. FINANCIAL CONDITION. The Company
will not permit:
(a) Its Interest Coverage Ratio for any
Fiscal Quarter to be less than 3.00 to 1.00.
(b) Its Leverage Ratio to be at any time
greater than 2.00 to 1.00.
SECTION 7.2.3. LONG-TERM LEASES. The Company will
not permit the aggregate Rentals for any Long-Term
Leases payable in any Fiscal Year by the Company and its
Subsidiaries to exceed 20% of the Company's Consolidated
Total Capitalization as at the last day of the preceding
Fiscal Year.
SECTION 7.2.4. INVESTMENTS. The Company will not,
and will not permit any of its Subsidiaries to, make,
incur, assume or suffer to exist any Investment in any
other Person, except:
(a) Investments existing on the Effective
Date and identified in ITEM 7.2.4(A) ("ONGOING
INVESTMENTS") of the Disclosure Schedule;
(b) Cash Equivalent Investments;
(c) in the ordinary course of business,
Investments by the Company in any of its
Subsidiaries, or by any such Subsidiary in any
of its Subsidiaries, by way of contributions to
capital or loans or advances; and
(d) other Investments in an aggregate
amount at any one time not to exceed the sum of
(i) the Company's Consolidated Net Worth as
reflected in the Company's most recently issued
consolidated balance sheet MINUS $110,000,000
PLUS (ii) fifteen percent (15%) of the Company's
Consolidated Net Worth as reflected in the
Company's most recently issued consolidated
balance sheet MINUS the amount by which the
aggregate amount of Intangibles of the Company
and its consolidated Subsidiaries determined on
a consolidated basis acquired after the
Effective Date exceeds fifteen percent (15%) of
the Company's Consolidated Net Worth as
reflected in the Company's most recently issued
consolidated balance sheet;
PROVIDED, HOWEVER, that
(e) any Investment which when made
complies with the requirements of the definition
of the term "CASH EQUIVALENT INVESTMENT" may
continue to be held notwithstanding that such
Investment if made thereafter would not comply
with such requirements; and
(f) no Investment otherwise permitted by
CLAUSE (C) or (D) shall be permitted to be made
if, immediately before or after giving effect
thereto, any Default shall have occurred and be
continuing.
<PAGE>
SECTION 7.2.5. CONSOLIDATION, MERGER, ETC. The
Company will not, and will not permit any of its
Subsidiaries to, liquidate or dissolve, consolidate
with, or merge into or with, any other corporation, or
purchase or otherwise acquire all or substantially all
of the assets of any Person (or of any division thereof)
other than (a) any such transaction among or between
Subsidiaries of the Company as long as the surviving
Person (in the case of a liquidation, merger,
dissolution or consolidation) or the acquiring Person
(in the case of an acquisition) is a wholly-owned
Subsidiary of the Company (and if as a result thereof
any such Subsidiary which will cease to exist is a
Designated Subsidiary, the obligations of such
Subsidiary shall be assumed by a Subsidiary which is a
Designated Subsidiary) or (b) any such transaction
involving the Company if the Company is the surviving
corporation, and provided that both before and after
giving effect to any such transaction (whether involving
the Company or any of its Subsidiaries), no Default has
occurred and is continuing and the Company continues to
meet all of its obligations under this Agreement and the
other Loan Documents.
SECTION 7.2.6. ASSET DISPOSITIONS, ETC .
Except as otherwise permitted by this Section, the
Company will not, and will not permit any of its
Subsidiaries to, sell, transfer, lease, contribute or
otherwise convey, or grant options, warrants or other
rights with respect to, all or any substantial part of
its assets (including accounts receivable and capital
stock of Subsidiaries) to any Person.
Notwithstanding the foregoing:
(a) the Company or any of its Subsidiaries
may sell, for a cash consideration equal to not less
than the fair market value thereof (as determined in
good faith by the Board of Directors of the Company)
assets which constitute a "substantial part" (as defined
below in this Section) of the assets of the Company and
its Subsidiaries if, within ninety (90) days after the
date of any such sale:
(1) the Person selling such
assets applies that portion (the
"EXCESS PORTION") of the net proceeds
received upon such sale which exceeds
fifteen percent (15%) of the Company's
Consolidated Net Assets (determined as
of the last day of the calendar month
immediately preceding the month in
which such sale occurs), to the
purchase (or shall have entered into a
firm and binding agreement to purchase,
within one hundred eighty (180) days
after the date of such sale), for a
cost not exceeding the fair market
value thereof (as determined in good
faith by the Board of Directors of the
Company), of other assets which will be
used or useful in the ordinary course
of the business of the Person selling
such assets, or
<PAGE>
(2) the Company, by written
notice to each holder of outstanding
Consolidated Funded Debt of the Company
not less than thirty (30) days prior to
the date fixed by the Company for the
prepayment or purchase referred to
below (which notice shall state that
the same is given pursuant to the
provisions of this SECTION 7.2.6 and
that any such holder that elects to
accept such offer must do so by notice
given to the Company, in writing or by
telex, not less than ten (10) days
prior to such date of prepayment or
purchase), shall have offered, pursuant
to a pro-rata offer made concurrently
to all holders of then outstanding
Consolidated Funded Debt, to apply an
amount equal to that portion of the
Excess Portion not applied as provided
in CLAUSE (1) above, to the prepayment
or purchase, on the date specified in
such notice (which date shall be within
such ninety (90) day period) of
Consolidated Funded Debt (at a
prepayment or purchase price not
exceeding the principal amount thereof
and accrued interest thereon to the
date of such prepayment or purchase,
and without premium); provided,
however, that, if and to the extent
that any holder of Consolidated Funded
Debt declines such offer in whole or in
part, that portion of the Excess
Portion offered to such holder and not
applied to the prepayment or purchase
of Consolidated Funded Debt held by it
shall be offered by the Company (within
ten (10) days following the expiration
of such ninety (90) day period) to be
applied, on a pro-rata basis, to the
prepayment or purchase on the date
specified in such offer (which date
shall be thirty (30) days following the
expiration of such ninety (90) day
period), on the same terms as provided
above, of Consolidated Funded Debt held
by all
holders of Consolidated Funded Debt which
elected to accept the initial prepayment or
purchase offer (any such holder electing to
accept such offer must notify the Company of
such election by notice given to the Company, in
writing or by telex, at least ten days prior to
the date fixed by the Company for said
prepayment or purchase);
provided, however, that the aggregate book value
of assets sold by the Company and its
Subsidiaries in any Fiscal Year pursuant to the
provisions of this PARAGRAPH (A) shall not
exceed thirty-five percent (35%) of the
Company's Consolidated Net Assets, determined as
of the last day of the immediately preceding
Fiscal Year; and
<PAGE>
(b) so long as no Event of Default or
Unmatured Event of Default exists, the Company
or any Subsidiary may sell or factor accounts
receivable owned by it, without recourse or
liability (except (i) usual and customary
contingent liabilities incurred by an endorser
without recourse or in connection with customary
warranties usually made in connection with sales
"without recourse" of accounts receivable and
(ii) repurchase or indemnity obligations with
respect thereto not exceeding ten percent (10%)
of the face amount of such accounts receivable)
and for an amount not less than the fair value
of such receivables;
As used in this SECTION 7.2.6 a sale, lease or other
disposition of assets shall be deemed to be a
"substantial part" of the assets of the Company and its
Subsidiaries only if the book value of such assets, when
added to the book value of all other assets sold, leased
or otherwise disposed of by the Company and its
Subsidiaries (other than (i) the sale or other
disposition of property which is worn-out, obsolete or
unserviceable and (ii) the sale of goods and services in
the ordinary course of business) during the same Fiscal
Year, exceeds fifteen percent (15%) of the Company's
Consolidated Net Assets, determined as of the end of the
immediately preceding Fiscal Year.
SECTION 7.2.7. TRANSACTIONS WITH AFFILIATES. The
Company will not, and will not permit any of its
Subsidiaries to, enter into or be a party to any
transaction, arrangement or contract with any of its
Related Parties (excluding any transactions,
arrangements or contracts entered into by the Company or
one of its Subsidiaries with any of its Related Parties
in good faith, and which the Company has in good faith
determined to be in the long term best interests of the
Company and its Subsidiaries taken as a whole),
including, without limitation, the purchase from, sale
to or exchange of property with, or the rendering of any
service by or for, any such Related Party, unless such
arrangement or contract is fair and equitable to the
Company or such Subsidiary and is a transaction,
arrangement or contract of the kind which would be
entered into by a prudent Person in the position of the
Company or such Subsidiary with a Person which is not
one of its Related Parties.
SECTION 7.2.8. NEGATIVE PLEDGES, RESTRICTIVE
AGREEMENTS, ETC. The Company will not, and will not
permit any of its Subsidiaries to, enter into any
agreement (excluding this Agreement and any other Loan
Document) prohibiting
(a) the creation or assumption of any Lien
upon its properties, revenues or assets, whether
now owned or hereafter acquired, or the ability
of the Company or any other Obligor to amend or
otherwise modify this Agreement or any other
Loan Document; or
<PAGE>
(b) the ability of any Subsidiary to make
any payments, directly or indirectly, to the
Company by way of dividends, advances,
repayments of loans or advances, reimbursements
of management and other intercompany charges,
expenses and accruals or other returns on
investments, or any other agreement or
arrangement which restricts the ability of any
such Subsidiary to make any payment, directly or
indirectly, to the Company.
SECTION 7.2.9. BUSINESS ACTIVITIES. The Company
will not, and will not permit any Subsidiary to, engage
in any business if, as a result, the general nature of
the businesses then to be engaged in by the Company and
its Subsidiaries taken as a whole, would be
substantially changed from the businesses in which they
are currently engaged and other activities related or
complementary thereto.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. LISTING OF EVENTS OF DEFAULT. Each of the following
events or occurrences described in this SECTION 8.1 shall constitute an "EVENT
OF DEFAULT".
SECTION 8.1.1. NON-PAYMENT OF OBLIGATIONS. Any
Borrower shall default in the payment or prepayment when
due of any principal on any Loan, or any Borrower shall
default (and such default shall continue unremedied for
a period of five days) in the payment when due of any
fee, any interest or of any other Obligation.
SECTION 8.1.2. BREACH OF WARRANTY. Any
epresentation or warranty of the Company, any
Designated Subsidiary or any other Obligor made or
deemed to be made hereunder or in any other Loan
Document executed by it or any other writing or
certificate furnished by or on behalf of the Company,
such Designated Subsidiary or such other Obligor to the
Agent or any Lender for the purposes of or in connection
with this Agreement or any such other Loan Document
(including any certificates delivered pursuant to
ARTICLE V) is or shall be incorrect when made or deemed
made in any material respect.
SECTION 8.1.3. NON-PERFORMANCE OF CERTAIN COVENANTS
AND OBLIGATIONS. The Company shall default in the due
performance and observance of any of its obligations
under SECTION 7.2 (other than SECTION 7.2.3).
SECTION 8.1.4. NON-PERFORMANCE OF OTHER COVENANTS
AND OBLIGATIONS. The Company, any Designated Subsidiary
or any other Obligor shall default in the due
performance and observance of any other agreement
contained herein or in any other Loan Document executed
by it, and such default shall continue unremedied for a
period of 30 days after the earlier of (i) the day on
<PAGE>
which the chief executive officer, chief operating
officer, chief financial officer, Treasurer or Secretary
of the Company first obtains actual knowledge of such
default, or (ii) notice thereof shall have been given to
the Company by the Agent or any Lender.
SECTION 8.1.5. DEFAULT ON OTHER INDEBTEDNESS. (a) A
default shall occur in the payment when due (subject to
any applicable grace period), whether by acceleration or
otherwise, of (i) any Indebtedness under the Senior Note
Agreements or (ii) any other Indebtedness (other than
Indebtedness described in SECTION 8.1.1) of, or
guaranteed by, the Company or any of its Subsidiaries
having a principal amount, individually or in the
aggregate, in excess of $5,000,000; or (b) a default
shall occur in the performance or observance of any
obligation or condition with respect to (i) any
Indebtedness under the Senior Note Agreements or (ii)
any other Indebtedness of, or guaranteed by, the Company
or any of its Subsidiaries having a principal amount,
individually or in the aggregate, in excess of
$5,000,000, if the effect of such default is to
accelerate the maturity of any such Indebtedness or such
default shall continue unremedied for any applicable
period of time sufficient to permit the holder or
holders of such Indebtedness, or any trustee or agent
for such holders, to cause such Indebtedness to become
due and payable prior to its expressed maturity.
SECTION 8.1.6. JUDGMENTS. Any judgments or orders
for the payment of money aggregating in excess of
$5,000,000 shall be rendered against the Company or any
of its Subsidiaries or against any property or assets of
either and either
(a) enforcement proceedings shall have
been commenced by any creditor upon such
judgments or orders; or
(b) there shall be any period of 60
consecutive days during which a stay of
enforcement of such judgment or order, by reason
of a pending appeal or otherwise, shall not be
in effect.
SECTION 8.1.7. PENSION PLANS. Any of the following
events shall occur with respect to any Pension Plan:
(a) the institution of any steps by the Company, any
ERISA Affiliate or any other Person to terminate a
Pension Plan if, as a result of such termination, the
Company or any such ERISA Affiliate could be required to
make a contribution to such Pension Plan, or could
reasonably expect to incur a liability or obligation to
such Pension Plan, in excess of $1,000,000; or (b) a
contribution failure occurs with respect to any Pension
Plan sufficient to give rise to a Lien under Section
302(f) of ERISA.
SECTION 8.1.8. CONTROL OF THE COMPANY. Any Change
in Control shall occur.
<PAGE>
SECTION 8.1.9. BANKRUPTCY, INSOLVENCY, ETC. The
Company or any of its Subsidiaries shall
(a) become insolvent or generally fail to
pay, or admit in writing its inability or
unwillingness to pay, debts as they become due;
(b) apply for, consent to, or acquiesce in,
the appointment of a trustee, receiver,
sequestrator or other custodian for the Company
or any of its Subsidiaries or any property of
any thereof, or make a general assignment for
the benefit of creditors;
(c) in the absence of such application,
consent or acquiescence, permit or suffer to
exist the appointment of a trustee, receiver,
sequestrator or other custodian for the Company
or any of its Subsidiaries or for a substantial
part of the property of any thereof, and such
trustee, receiver, sequestrator or other
custodian shall not be discharged within 60
days, provided that the Company and each
Subsidiary hereby expressly authorizes the Agent
and each Lender to appear in any court
conducting any relevant proceeding during such
60-day period to preserve, protect and defend
their rights under the Loan Documents;
(d) permit or suffer to exist the
commencement of any bankruptcy, reorganization,
debt arrangement or other case or proceeding
under any bankruptcy or insolvency law, or any
dissolution, winding up or liquidation
proceeding, in respect of the Company or any of
its Subsidiaries, and, if any such case or
proceeding is not commenced by the Company or
such Subsidiary, such case or proceeding shall
be consented to or acquiesced in by the Company
or such Subsidiary or shall result in the entry
of an order for relief or shall remain for 60
days undismissed, provided that the Company and
each Subsidiary hereby expressly authorizes the
Agent and each Lender to appear in any court
conducting any such case or proceeding during
such 60-day period to preserve, protect and
defend their rights under the Loan Documents; or
(e) take any action authorizing, or in
furtherance of, any of the foregoing.
SECTION 8.2. ACTION IF BANKRUPTCY. If any Event of Default described
in CLAUSES (A) through (E) of SECTION 8.1.9 shall occur with respect to the
Company or any Subsidiary, the Commitments(if not theretofore terminated) shall
automatically terminate and be reduced to zero and the and the outstanding
principal amount of all outstanding Loans and all other Obligations shall
automatically be and become immediately due and payable, without notice or
demand.
<PAGE>
SECTION 8.3. ACTION IF OTHER EVENT OF DEFAULT . If any Event of
Default (other than any Event of Default described in CLAUSES (A) through (E) of
SECTION 8.1.9 with respect to the Company or any Subsidiary) shall occur for any
reason, whether voluntary or involuntary, and be continuing, the Agent, upon the
direction of the Required Lenders, shall by notice to the Company declare all or
any portion of the outstanding principal amount of the Loans and other
Obligations to be due and payable and/or the Commitments (if not theretofore
terminated) to be terminated and reduced to zero, whereupon the full unpaid
amount of such Loans and other Obligations which shall be so declared due and
payable shall be and become immediately due and payable, without further
notice, demand or presentment, and/or, as the case may be, the Commitments shall
terminate and be reduced to zero.
ARTICLE IX
THE AGENT
SECTION 9.1. ACTIONS. Each Lender hereby appoints B of A as its Agent
under and for purposes of this Agreement, the Notes and each other Loan
Document. Each Lender authorizes the Agent to act on behalf of such Lender under
this Agreement, the Notes and each other Loan Document and, in the absence of
other written instructions from the Required Lenders received from time to time
by the Agent (with respect to which the Agent agrees that it will comply, except
as otherwise provided in this Section or as otherwise determined by the Agent in
good faith on advice from legal counsel that to do so could (i) be in violation
of the terms of this Agreement or another Loan Document, (ii) be contrary to
public policy or in violation of law, regulation, guideline, decision, directive
or opinion of any court or regulator or governmental or regulatory body having
jurisdiction over the Agent, or (iii) expose the Agent to liability, fine or
penalty), to exercise such powers hereunder and thereunder as are specifically
delegated to or required of the Agent by the terms hereof and thereof, together
with such powers as may be reasonably incidental thereto. Each Lender hereby
indemnifies (which indemnity shall survive any termination of this Agreement)
the Agent, PRO RATA according to such Lender's Percentage, from and against any
and all liabilities, obligations, losses, damages, claims, costs or expenses of
any kind or nature whatsoever which may at any time be imposed on, incurred by,
or asserted against, the Agent in any way relating to or arising out of this
Agreement, the Notes and any other Loan Document, including reasonable
attorneys' fees, and as to which the Agent is not reimbursed by the Company;
PROVIDED, HOWEVER, that no Lender shall be liable for the payment of any portion
of such liabilities, obligations, losses, damages, claims, costs or expenses
which are determined by a court of competent jurisdiction in a final proceeding
to have resulted solely from the Agent's gross negligence or wilful misconduct.
The Agent shall not be required to take any action hereunder, under the Notes or
under any other Loan Document, or to prosecute or defend any suit in respect of
this Agreement, the Notes or any other Loan Document, unless it is indemnified
hereunder to its satisfaction. If any indemnity in favor of the Agent shall be
or become, in the Agent's determination, inadequate, the Agent may call for
additional indemnification from the Lenders and cease to do the acts indemnified
against hereunder until such additional indemnity is given.
SECTION 9.2. FUNDING RELIANCE, ETC. Unless the Agent shall have been
notified by telephone, confirmed in writing, by any Lender by 5:00 p.m., Chicago
time, on the day prior to a Borrowing that such Lender will not make available
the amount which would constitute its Percentage of such Borrowing on the date
specified therefor, the Agent may assume that such Lender has made such amount
available to the Agent and, in reliance upon such assumption, make available to
the Borrower a corresponding amount. If and to the extent that such Lender shall
not have made such amount available to the Agent, such Lender and the Company
severally agree to repay the Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date the Agent made such
amount available to the Company to the date such amount is repaid to the Agent,
at the interest rate applicable at the time to Loans comprising such Borrowing.
<PAGE>
SECTION 9.3. EXCULPATION. Neither the Agent nor any of its directors,
officers, employees or agents shall be liable to any Lender for any action taken
or omitted to be taken by it under this Agreement or any other Loan Document, or
in connection herewith or therewith, except for its own wilful misconduct or
gross negligence, nor responsible for any recitals or warranties herein or
therein, nor for the effectiveness, enforceability, validity or due execution of
this Agreement or any other Loan Document, nor to make any inquiry respecting
the performance by the Company of its obligations hereunder or under any other
Loan Document. Any such inquiry which may be made by the Agent shall not
obligate it to make any further inquiry or to take any action. The Agent shall
be entitled to rely upon advice of counsel concerning legal matters and upon any
notice, consent, certificate, statement or writing which the Agent believes to
be genuine and to have been presented by a proper Person.
SECTION 9.4. SUCCESSOR. The Agent may resign as such at any time upon
at least 30 days' prior notice to the Company and all Lenders. If the Agent at
any time shall resign, the Required Lenders may appoint another Lender as a
successor Agent which shall thereupon become the Agent hereunder. If no
successor Agent shall have been so appointed by the Required Lenders, and shall
have accepted such appointment, within 30 days after the retiring Agent's giving
notice of resignation, then the retiring Agent may, on behalf of the Lenders,
appoint a successor Agent, which shall be one of the Lenders or a commercial
banking institution organized under the laws of the U.S. (or any State thereof)
or a U.S. branch or agency of a commercial banking institution, and having a
combined capital and surplus of at least $500,000,000. Upon the acceptance of
any appointment as Agent hereunder by a successor Agent, such successor Agent
shall be entitled to receive from the retiring Agent such documents of transfer
and assignment as such successor Agent may reasonably request, and shall
thereupon succeed to and become vested with all rights, powers, privileges and
duties of the retiring Agent, and the retiring Agent shall be discharged from
its duties and obligations under this Agreement. After any retiring Agent's
resignation hereunder as the Agent, the provisions of
(a) this ARTICLE IX shall inure to its benefit as
to any actions taken or omitted to be taken by it while
it was the Agent under this Agreement; and
(b) SECTION 10.3 and SECTION 10.4 shall continue
to inure to its benefit.
SECTION 9.5. LOANS BY LENDERS. B of A shall have the same rights and
powers with respect to (x) the Loans made by it or any of its Related Parties,
and (y) the Notes held by it or any of its Related Parties as any other Lender
and may exercise the same as if it were not the Agent. B of A and its Related
Parties may accept deposits from, lend money to, and generally engage in any
kind of business with the Company or any Subsidiary or Related Party of the
Company as if B of A were not the Agent hereunder.
SECTION 9.6. CREDIT DECISIONS. Each Lender acknowledges that it has,
independently of the Agent and each other Lender, and based on such Lender's
review of the financial information of the Company, this Agreement, the other
Loan Documents (the terms and provisions of which being satisfactory to such
Lender) and such other documents, information and investigations as such Lender
has deemed appropriate, made its own credit decision to extend its Commitment.
Each Lender also acknowledges that it will, independently of the Agent and each
other Lender, and based on such other documents, information and investigations
as it shall deem appropriate at any time, continue to make its own credit
decisions as to exercising or not exercising from time to time any rights and
privileges available to it under this Agreement or any other Loan Document.
<PAGE>
SECTION 9.7. COPIES, ETC. The Agent shall give prompt notice to each
Lender of each notice or request required or permitted to be given to the Agent
by the Company pursuant to the terms of this Agreement (unless concurrently
delivered to the Lenders by the Company). The Agent will distribute to each
Lender each document or instrument received for its account and copies of all
other communications received by the Agent from the Company for distribution to
the Lenders by the Agent in accordance with the terms of this Agreement.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. WAIVERS, AMENDMENTS, ETC. The provisions of this
Agreement and of each other Loan Document may from time to time be amended,
modified or waived, if such amendment, modification or waiver is in writing and
consented to by the Company and the Required Lenders; PROVIDED, HOWEVER, that no
such amendment, modification or waiver which would:
(a) modify any requirement hereunder that any
particular action be taken by all the Lenders or by the
Required Lenders, shall be effective unless consented to
by each Lender;
(b) modify this SECTION 10.1, change the definition
of "REQUIRED LENDERS", increase the Commitment Amount,
Designated Subsidiary or the Percentage of any Lender
(except pursuant to assignments in accordance with
SECTION 10.11), reduce any fees described in ARTICLE
III, or extend the Commitment Termination Date shall be
made without the consent of each Lender and each holder
of a Note;
(c) extend the due date for, or reduce the amount
of, any scheduled repayment or prepayment of principal
of or interest on any Loan (or reduce the principal
amount of or rate of interest on any Loan) shall be made
without the consent of the holder of the Note evidencing
such Loan; or
(d) affect adversely the interests, rights or
obligations of the Agent QUA the Agent shall be made
without consent of the Agent.
No failure or delay on the part of the Agent, any Lender or the holder of any
Note in exercising any power or right under this Agreement or any other Loan
Document shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power or right preclude any other or further exercise
thereof or the exercise of any other power or right. No notice to or demand on
the Company in any case shall entitle it to any notice or demand in similar or
other circumstances. No waiver or approval by the Agent, any Lender or the
holder of any Note under this Agreement or any other Loan Document shall, except
as may be otherwise stated in such waiver or approval, be applicable to
subsequent transactions. No waiver or approval hereunder shall require any
similar or dissimilar waiver or approval thereafter to be granted hereunder.
SECTION 10.2. NOTICES. All notices and other communications provided
to any party hereto under this Agreement or any other Loan Document shall be in
writing or by Telex or by facsimile and addressed, delivered or transmitted to
such party at its address, Telex or facsimile number set forth below its
<PAGE>
signature hereto or set forth in the Lender Assignment Agreement or at such
other address, Telex or facsimile number as may be designated by such party in a
notice to the other parties. Any notice, if mailed and properly addressed with
postage prepaid or if properly addressed and sent by pre-paid courier service,
shall be deemed given when sent; PROVIDED, HOWEVER, that notices to the Agent
under SECTIONS 2.3 through 2.5 shall not be effective until actually received by
the Agent; any notice, if transmitted by facsimile, shall be deemed given when
transmitted.
SECTION 10.3. PAYMENT OF COSTS AND EXPENSES. The Company agrees to
pay on demand all reasonable expenses of the Agent (including the fees and
out-of-pocket expenses of counsel to the Agent and of local counsel, if any,
who may be retained by counsel to the Agent) in connection with
(a) the negotiation, preparation, execution and
delivery of this Agreement and of each other Loan
Document, including schedules and exhibits, and any
amendments, waivers, consents, supplements or other
modifications to this Agreement or any other Loan
Document as may from time to time hereafter be required,
whether or not the transactions contemplated hereby are
consummated, and
(b) the preparation and review of the form of any
document or instrument relevant to this Agreement or any
other Loan Document.
The Company further agrees to pay, and to save the Agent and the Lenders
harmless from all liability for, any stamp or other taxes which may be payable
in connection with the execution or delivery of this Agreement, the borrowings
hereunder, or the issuance of the Notes or any other Loan Documents or the
acceptance of telephonic or other instructions for making Loans. The Company
also agrees to reimburse the Agent and each Lender upon demand its reasonable
expenses, including fees and out-of-pocket expenses of counsel (including
counsel who may be employees of the Agent or such Lender), incurred by the Agent
or such Lender in connection with (x) the negotiation of any restructuring or
"work-out", whether or not consummated, of any Obligations and (y) the
enforcement of any Obligations.
SECTION 10.4. INDEMNIFICATION. In consideration of the execution and
delivery of this Agreement by each Lender and the extension of the Commitments,
the Company hereby indemnifies, exonerates and holds the Agent and each Lender
and each of their respective officers, directors, employees and agents
(collectively, the "INDEMNIFIED PARTIES") free and harmless from and against any
and all actions, causes of action, suits, losses, costs, liabilities and
damages, and expenses incurred in connection therewith (irrespective of whether
any such Indemnified Party is a party to the action for which indemnification
hereunder is sought), including reasonable attorneys' fees and disbursements
(collectively, the "INDEMNIFIED LIABILITIES"), incurred by the Indemnified
Parties or any of them as a result of, or arising out of, or relating to
(a) any transaction financed or to be financed in
whole or in part, directly or indirectly, with the
proceeds of any Loan;
(b) the entering into and performance of this
Agreement and any other Loan Document by any of the
Indemnified Parties (including any action brought by or
on behalf of the Company as the result of any
determination by the Required Lenders pursuant to
ARTICLE V not to fund any Borrowing); or
<PAGE>
(c) any investigation, litigation or proceeding
related to any acquisition or proposed acquisition by
the Company or any of its Subsidiaries of all or any
portion of the stock or assets of any Person, whether or
not the Agent or such Lender is party thereto,
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's gross
negligence or wilful misconduct, or such Indemnified Party's failure to comply
with SECTIONS 10.11 or 10.12. If and to the extent that the foregoing
undertaking may be unenforceable for any reason, the Company hereby agrees to
make the maximum contribution to the payment and satisfaction of each of the
Indemnified Liabilities which is permissible under applicable law.
SECTION 10.5. SURVIVAL. The obligations of the Company under SECTIONS
4.3, 4.4, 4.5, 4.6, 10.3 and 10.4, and the obligations of the Lenders under
SECTION 9.1, shall in each case survive any termination of this Agreement, the
payment in full of all Obligations and the termination of all Commitments. The
representations and warranties made by each Obligor in this Agreement and in
each other Loan Document shall survive the execution and delivery of this
Agreement and each such other Loan Document.
SECTION 10.6. SEVERABILITY. Any provision of this Agreement or any
other Loan Document which is prohibited or unenforceable in any jurisdiction
shall, as to such provision and such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions of this Agreement or such Loan Document or affecting the validity or
enforceability of such provision in any other jurisdiction.
SECTION 10.7. HEADINGS. The various headings of this Agreement and of
each other Loan Document are inserted for convenience only and shall not affect
the meaning or interpretation of this Agreement or such other Loan Document or
any provisions hereof or thereof.
SECTION 10.8. EXECUTION IN COUNTERPARTS, EFFECTIVENESS, ETC. This
Agreement may be executed by the parties hereto in several counterparts, each of
which shall be executed by the Company and the Agent and be deemed to be an
original and all of which shall constitute together but one and the same
agreement. This Agreement shall become effective when counterparts hereof
executed on behalf of the Company and each Lender (or notice thereof
satisfactory to the Agent) shall have been received by the Agent and notice
thereof shall have been given by the Agent to the Company and each Lender.
SECTION 10.9. GOVERNING LAW; ENTIRE AGREEMENT. THIS AGREEMENT, THE
NOTES AND EACH OTHER LOAN DOCUMENT SHALL EACH BE DEEMED TO BE A CONTRACT MADE
UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF ILLINOIS. This
agreement, the Notes and the other Loan Documents constitute the entire
understanding among the parties hereto with respect to the subject matter hereof
and supersede any prior agreements, written or oral, with respect thereto.
SECTION 10.10. SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns; PROVIDED, HOWEVER, that:
(a) the Company may not assign or transfer its
rights or obligations hereunder without the prior
written consent of the Agent and all Lenders; and
(b) the rights of sale, assignment and transfer of
the Lenders are subject to SECTION 10.11.
<PAGE>
SECTION 10.11. SALE AND TRANSFER OF LOANS AND NOTE; PARTICIPATIONS IN
LOANS AND NOTE . Each Lender may assign, or sell participations in, its Loans
and Commitment to one or more other Persons in accordance with this SECTION
10.11.
SECTION 10.11.1. ASSIGNMENTS. Any Lender,
(a) with the written consents of the
Company and the Agent (which consents shall not
be unreasonably delayed or withheld and which
consent, in the case of the Company, shall be
deemed to have been given in the absence of a
written notice delivered by the Company to the
Agent, on or before the fifth Banking Day after
receipt by the Company of such Lender's request
for consent, stating, in reasonable detail, the
reasons why the Company proposes to withhold
such consent) may at any time assign and
delegate to one or more commercial banks or
other financial institutions, and
(b) with notice to the Company and the
Agent, but without the consent of the Company or
the Agent, may assign and delegate to any of its
Affiliates or to any other Lender
(each Person described in either of the foregoing
clauses as being the Person to whom such assignment and
delegation is to be made, being hereinafter referred to
as an "ASSIGNEE LENDER"), all or any fraction of such
Lender's total Loans and Commitment (which assignment
and delegation shall be of a constant, and not a
varying, percentage of all the assigning Lender's Loans
and Commitment) in a minimum aggregate amount of the
lesser of (x) such Lender's total Loans and Commitment
and (y) $5,000,000 PROVIDED, HOWEVER, that any such
Assignee Lender will comply, if applicable, with the
provisions contained in the penultimate sentence of
SECTION 4.6 and FURTHER, PROVIDED, HOWEVER, that, the
Company and the Agent shall be entitled to continue to
deal solely and directly with such Lender in connection
with the interests so assigned and delegated to an
Assignee Lender until
(c) written notice of such assignment and
delegation, together with payment instructions,
addresses and related information with respect
to such Assignee Lender, shall have been given
to the Company and the Agent by such Lender and
such Assignee Lender,
(d) such Assignee Lender shall have
executed and delivered to the Company and the
Agent a Lender Assignment Agreement, accepted by
the Agent, and
(e) the processing fees described below
shall have been paid.
<PAGE>
From and after the date that the Agent accepts such
Lender Assignment Agreement, (x) the Assignee Lender
thereunder shall be deemed automatically to have become
a party hereto and to the extent that rights and
obligations hereunder have been assigned and delegated
to such Assignee Lender in connection with such Lender
Assignment Agreement, shall have the rights and
obligations of a Lender hereunder and under the other
Loan Documents, and (y) the assignor Lender, to the
extent that rights and obligations hereunder have been
assigned and delegated by it in connection with such
Lender Assignment Agreement, shall be released from its
obligations hereunder and under the other Loan
Documents. Within five Banking Days after its receipt of
notice that the Agent has received an executed Lender
Assignment Agreement, the Borrower shall execute and
deliver to the Agent (for delivery to the relevant
Assignee Lender) a new Note evidencing such Assignee
Lender's assigned Loans and Commitment and, if the
assignor Lender has retained Loans and a Commitment
hereunder, a replacement Note in the principal amount of
the Loans and Commitment retained by the assignor Lender
hereunder (such Note to be in exchange for, but not in
payment of, that Note then held by such assignor
Lender). Each such Note shall be dated the date of the
predecessor Note. The assignor Lender shall mark the
predecessor Note "exchanged" and deliver it to the
Borrower. Accrued interest on that part of the
predecessor Note evidenced by the new Note, and accrued
fees, shall be paid as provided in the Lender Assignment
Agreement. Accrued interest on that part of the
predecessor Note evidenced by the replacement Note shall
be paid to the assignor Lender. Accrued interest and
accrued fees shall be paid at the same time or times
provided in the predecessor Note and in this Agreement.
Such assignor Lender or such Assignee Lender must also
pay a processing fee to the Agent upon delivery of any
Lender Assignment Agreement in the amount of $3,000. Any
attempted assignment and delegation not made in
accordance with this SECTION 10.11.1 shall be null and
void.
SECTION 10.11.2. PARTICIPATIONS. Any Lender may at
any time sell to one or more commercial banks or other
Persons (each of such commercial banks and other Persons
being herein called a "PARTICIPANT") participating
interests in any of the Loans, its Commitment, or other
interests of such Lender hereunder; PROVIDED, HOWEVER,
that
(a) no participation contemplated in this
SECTION 10.11 shall relieve such Lender from its
Commitment or its other obligations hereunder or
under any other Loan Document,
(b) such Lender shall remain solely
responsible for the performance of its
Commitment and such other obligations,
<PAGE>
(c) each Borrower and the Agent shall
continue to deal solely and directly with such
Lender in connection with such Lender's rights
and obligations under this Agreement and each of
the other Loan Documents,
(d) no Participant, unless such
Participant is an Affiliate of such Lender, or
is itself a Lender, shall be entitled to require
such Lender to take or refrain from taking any
action hereunder or under any other Loan
Document, except that such Lender may agree with
any Participant that such Lender will not,
without such Participant's consent, take any
actions of the type described in CLAUSE (B) or
(C) of SECTION 10.1, and
(e) the Company shall not be required to
pay any amount under SECTION 4.6 that is greater
than the amount which it would have been
required to pay had no participating interest
been sold.
The Company acknowledges and agrees that each
Participant, for purposes of SECTIONS 4.3, 4.4, 4.5,
4.6, 4.8, 4.9, 10.3 and 10.4, shall be considered a
Lender.
SECTION 10.12. EXEMPT CHARACTER OF TRANSACTION. The Company, the
Lenders and the Agent agree that each will not (and in the case of the Company,
it will not permit any Subsidiary to), directly or indirectly, sell or offer, or
attempt to or offer to dispose of, any interest in the Notes or any
substantially similar instruments of any borrower hereunder, or solicit any
offers to buy any interest therein from, or otherwise approach or negotiate with
respect thereto with, any Person whatsoever so as to bring the execution and
delivery of either this Agreement or the Notes within the provisions of Section
5 of the Securities Act of 1933, as now in effect or later amended.
SECTION 10.13. OTHER TRANSACTIONS. Nothing contained herein shall
preclude the Agent or any other Lender from engaging in any transaction, in
addition to those contemplated by this Agreement or any other Loan Document,
with the Company or any of its Affiliates in which the Company or such Affiliate
is not restricted hereby from engaging with any other Person.
SECTION 10.14. FORUM SELECTION AND CONSENT TO JURISDICTION. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE AGENT, THE
LENDERS OR THE COMPANY SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS
OF THE STATE OF ILLINOIS OR IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT
AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE AGENT'S OPTION,
IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE
FOUND. THE COMPANY HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION
OF THE COURTS OF THE STATE OF ILLINOIS AND OF THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS FOR THE PURPOSE OF ANY SUCH LITIGATION AS
SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED
THEREBY IN CONNECTION WITH SUCH LITIGATION. THE COMPANY FURTHER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY
PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF ILLINOIS. THE COMPANY HEREBY
<PAGE>
EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY
SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT
ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT
THAT THE COMPANY HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF
ANY COURT OF FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE,
ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH
RESPECT TO ITSELF OR ITS PROPERTY, THE COMPANY HEREBY IRREVOCABLY WAIVES SUCH
IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
SECTION 10.15. WAIVER OF JURY TRIAL . THE AGENT, THE LENDERS AND THE
COMPANY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF THE AGENT, THE LENDERS OR THE COMPANY. THE
COMPANY ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER LOAN
DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE AGENT AND THE LENDERS ENTERING INTO THIS AGREEMENT AND EACH
SUCH OTHER LOAN DOCUMENT.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized as of the day
and year first above written.
ANDREW CORPORATION
By: ______________________________
Title: _________________________
Address: 10500 West 153rd Street
Orland Park, IL 60462
Facsimile No.: 708-349-5287
Attention: Mr. M. Jeffrey Gittelman
Treasurer
<PAGE>
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Agent
By: ______________________________
Title: _________________________
Address: 231 South LaSalle Street
Chicago, IL 60697
Facsimile No.: 312-974-9102
Attention: Mr. David Johanson
Agency Management Services
<PAGE>
LENDERS
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: _____________________________
Title: ________________________
Domestic
Office: 231 South LaSalle Street
Chicago, IL 60697
Facsimile No.: 312-828-1974
Attention: Mr. Rob Ritter
CBD-I
Eurodollar
Office: 231 South LaSalle Street
Chicago, IL 60697
Facsimile No.: 312-828-1974
Attention: Mr. Rob Ritter
<PAGE>
ABN AMRO BANK N.V.
By: _____________________________
Title: ________________________
By: _____________________________
Title: ________________________
Domestic
Office: 135 South LaSalle Street
Suite 625
Chicago, IL 60603
Facsimile No.: 312-606-8425
Attention: Joann Holman
Eurodollar
Office: 135 South LaSalle Street
Suite 625
Chicago, IL 60603
Facsimile No.: 312-606-8425
Attention: Joann Holman
<PAGE>
THE FIRST NATIONAL BANK OF CHICAGO
By: _____________________________
Title: ________________________
Domestic
Office: One First National Plaza
Suite 0088
Chicago, IL 60670
Facsimile No.: 312-732-2715
Attention: Ms. Cheryl McCabe
Eurodollar
Office: One First National Plaza
Suite 0088
Chicago, IL 60670
Facsimile No.: 312-732-2715
Attention: Ms. Cheryl McCabe
<PAGE>
SCHEDULE I
Schedule of Percentages
A. LENDER PERCENTAGE
Bank of America National Trust
and Savings Association 50%
ABN AMRO Bank N.V. 25%
First National Bank of Chicago 25%
<PAGE>
SCHEDULE II
DISCLOSURE SCHEDULE*
ITEM 6.7 LITIGATION.
DESCRIPTION OF PROCEEDING ACTION OR CLAIM SOUGHT
ITEM 6.8 EXISTING SUBSIDIARIES.
State of Ownership Business
NAME INCORPORATION % DESCRIPTION
ITEM 6.11 EMPLOYEE BENEFIT PLANS.
ITEM 6.12 ENVIRONMENTAL MATTERS.
ITEM 7.2.2(b) INDEBTEDNESS TO BE PAID.
CREDITOR OUTSTANDING PRINCIPAL AMOUNT
ITEM 7.2.4(a) ONGOING INVESTMENTS.
- --------------------
* Item numbers are keyed to refer to Sections where the item is principally
referred to and will have to be revised as such Sections are renumbered.
<PAGE>
EXHIBIT A
REPLACEMENT NOTE
__________, 19__
FOR VALUE RECEIVED, the undersigned, [BORROWER'S NAME], a ___________
corporation (the "BORROWER"), promises to pay to the order of
______________________ (the "LENDER") on the Stated Maturity Date, the principal
sum of all Loans shown on the schedules attached hereto (and any continuation
thereof) made by the Lender pursuant to that certain Amended and Restated Credit
Agreement, dated as of November 1, 1997 (together with all amendments and other
modifications, if any, from time to time thereafter made thereto, the
"AGREEMENT"), among Andrew Corporation (the "COMPANY"), certain Subsidiaries of
the Company, including the Borrower, Bank of America National Trust and Savings
Association, as Agent, and the various financial institutions (including the
Agent) as are, or may from time to time become, parties thereto.
The Borrower also promises to pay interest on the unpaid principal
amount hereof from time to time outstanding from the date hereof until maturity
(whether by acceleration or otherwise) and, after maturity, until paid, at the
rates per annum and on the dates specified in the Agreement.
Payments of both principal and interest are to be made in U.S. Dollars
or the appropriate Eurocurrency, as applicable, in same day or immediately
available funds to the account designated by the Agent pursuant to the
Agreement.
This Note is a Note referred to in, and evidences Indebtedness incurred
under, the Agreement, to which reference is made for a statement of the terms
and conditions on which the Borrower is permitted and required to make
prepayments and repayments of principal of the Indebtedness evidenced by this
Note and on which such Indebtedness may be declared to be immediately due and
payable. Unless otherwise defined, terms used herein have the meanings provided
in the Agreement.
This Note constitutes a renewal and restatement of that certain Note of
the Borrower, dated June 16, 1993, payable to the order of the Lender in the
original principal amount of the appropriate Eurocurrency or U.S. Dollars, as
applicable, __________, (the "ORIGINAL NOTE"). The indebtedness evidenced by the
Original Note is continuing indebtedness, and nothing contained herein shall be
deemed to constitute a payment, settlement or novation of the Original Note.
All parties hereto, whether as makers, endorsers, or otherwise,
severally waive presentment for payment, demand, protest and notice of dishonor.
THIS NOTE HAS BEEN DELIVERED IN CHICAGO, ILLINOIS AND SHALL BE DEEMED
TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF
ILLINOIS.
[BORROWER NAME]
By_________________________
Title:
<PAGE>
Schedule A to Replacement Note
REFERENCE RATE LOANS AND REPAYMENT OF REFERENCE RATE LOANS
(2)
Amount (4)
and (3) Amount and
Currency Interest Currency (5)
(1) of Period of of Notation
DATE LOAN LOAN LOAN REPAID MADE BY
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
<PAGE>
Schedule B to Replacement Note
EURODOLLAR RATE AND EUROCURRENCY RATE LOANS AND REPAYMENT OF LOANS
(2)
Amount (4)
and (3) Amount and
Currency Interest Currency (5)
(1) of Period of of Notation
DATE LOAN LOAN LOAN REPAID MADE BY
______________ ______________ ______________ ______________ _______________
______________ ______________ ______________ ______________ _______________
______________ ______________ ______________ ______________ _______________
______________ ______________ ______________ ______________ _______________
______________ ______________ ______________ ______________ _______________
______________ ______________ ______________ ______________ _______________
______________ ______________ ______________ ______________ _______________
______________ ______________ ______________ ______________ _______________
______________ ______________ ______________ ______________ _______________
______________ ______________ ______________ ______________ _______________
______________ ______________ ______________ ______________ _______________
______________ ______________ ______________ ______________ _______________
______________ ______________ ______________ ______________ _______________
______________ ______________ ______________ ______________ _______________
______________ ______________ ______________ ______________ _______________
<PAGE>
Schedule C to Replacement Note
QUOTED RATE LOANS AND REPAYMENT OF LOANS
(2)
Amount (3)
of Amount of (4)
(1) Quoted Quoted Rate Notation
DATE LOAN LOAN REPAID MADE BY
______________ ______________ ______________ ______________
______________ ______________ ______________ ______________
______________ ______________ ______________ ______________
______________ ______________ ______________ ______________
______________ ______________ ______________ ______________
______________ ______________ ______________ ______________
______________ ______________ ______________ ______________
______________ ______________ ______________ ______________
______________ ______________ ______________ ______________
______________ ______________ ______________ ______________
______________ ______________ ______________ ______________
______________ ______________ ______________ ______________
______________ ______________ ______________ ______________
______________ ______________ ______________ ______________
______________ ______________ ______________ ______________
<PAGE>
EXHIBIT B
BORROWING REQUEST
Bank of America National Trust
and Savings Association, as Agent
231 South LaSalle Street
Chicago, Illinois 60697
Attention: Mr. Rob Ritter
CBD-I
ANDREW CORPORATION
Gentlemen and Ladies:
This Borrowing Request is delivered to you pursuant to Section 2.3 of
the Amended and Restated Credit Agreement, dated as of November 1, 1997 (the
"AGREEMENT"), among Andrew Corporation, a Delaware corporation (the "COMPANY"),
certain subsidiaries of the Company, certain financial institutions and Bank of
America National Trust and Savings Association ("BofA")(the "AGENT"). Unless
otherwise defined herein or the context otherwise requires, terms used herein
have the meanings provided in the Agreement.
The Company hereby requests that a Borrowing of Loans be made to
BORROWER'S NAME in the aggregate principal amount of $______ on ______, 19__ as
[Eurodollar Rate Loans having an Interest Period of ______ months] [Quoted Rate
Loans having an Interest Period of ______] [Reference Rate Loans].
The Company hereby acknowledges that, pursuant to SECTION 5.3.2 of the
Agreement, each of the delivery of this Borrowing Request and the acceptance by
the Borrower of the proceeds of the Loans requested hereby constitute a
representation and warranty by the Company that, on the date of such Loans, and
before and after giving effect thereto and to the application of the proceeds
therefrom, all statements set forth in SECTION 5.3.1 are true and correct in all
material respects.
The Company agrees that if prior to the time of the Borrowing requested
hereby any matter certified to herein by it will not be true and correct at such
time as if then made, it will immediately so notify the Agent. Except to the
extent, if any, that prior to the time of the Borrowing requested hereby the
Agent shall receive written notice to the contrary from the Company, each matter
certified to herein shall be deemed once again to be certified as true and
correct at the date of such Borrowing as if then made.
Please wire transfer the proceeds of the Borrowing to the accounts of
the following persons at the financial institutions indicated respectively:
Amount to be PERSON TO BE PAID Name, Address, etc.
TRANSFERRED NAME ACCOUNT NO. OF TRANSFEREE
$____________ _____________ _____________ ____________________
____________________
Attention:__________
$____________ _____________ _____________ ____________________
____________________
Attention:__________
Balance of [BORROWER'S NAME] _____________ ____________________
such proceeds ____________________
Attention:__________
<PAGE>
The Company has caused this Borrowing Request to be executed and
delivered, and the certification and warranties contained herein to be made, by
its duly Authorized Corporate Officer this ___ day of ____________, 19__ .
ANDREW CORPORATION
By:__________________________
Name:_____________________
Title:____________________
<PAGE>
EXHIBIT C
GUARANTY
GUARANTY (this "GUARANTY"), dated as of November 1, 1997, made by
ANDREW CORPORATION, a Delaware corporation (the "Guarantor"), in favor of each
of the Lender Parties (as defined below).
W I T N E S S E T H:
WHEREAS, pursuant to the Amended and Restated Credit Agreement, dated
as of November 1, 1997, (the "AGREEMENT"), among the Guarantor, a Delaware
corporation, certain Subsidiaries of the Guarantor, the various commercial
lending institutions (individually a "LENDER" and collectively the "LENDERS") as
are, or may from time to time become, parties thereto and Bank of America
National Trust and Savings Association as agent (together with any successors(s)
thereto in such capacity, the "AGENT") for the Lenders, the Lenders have
extended Commitments to make Loans to the Borrowers (as defined below); and
WHEREAS, as a condition precedent to the Lender making the initial
Loans under the Agreement to a Designated Subsidiary, the Guarantor is required
to execute and deliver this Guaranty; and
WHEREAS, the Guarantor has duly authorized the execution, delivery and
performance of this Guaranty; and
WHEREAS, it is in the best interests of the Guarantor to execute this
Guaranty inasmuch as the Guarantor will derive substantial direct and indirect
benefits from the Loans made from time to time to a Designated Subsidiary by the
Lenders pursuant to the Agreement;
NOW THEREFORE, for good and valuable consideration the receipt of which
is hereby acknowledged, and in order to induce the Lenders to make Loans to a
Designated Subsidiary pursuant to the Agreement, the Guarantor agrees, for the
benefit of each Lender Party, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. CERTAIN TERMS. The following terms (whether or not
underscored) when used in this Guaranty, including its preamble and recitals,
shall have the following meanings (such definitions to be equally applicable to
the singular and plural forms thereof):
"AGENT" is defined in the FIRST RECITAL.
"AGREEMENT" is defined in the FIRST RECITAL.
"BORROWERS" mean the Guarantor and the Designated Subsidiary
"DESIGNATED SUBSIDIARY" means each subsidiary of the Guarantor
identified as a Designated Subsidiary in a Designation Letter delivered to the
Agent, from time to time.
"GUARANTOR" is defined in the PREAMBLE.
"GUARANTY" is defined in the PREAMBLE.
"LENDER" is defined in the FIRST RECITAL.
"LENDER PARTY" means, as the context may require, any Lender or the
Agent and each of its respective successors, transferees and assigns.
<PAGE>
"LENDERS" is defined in the FIRST RECITAL.
"TAXES" is defined in CLAUSE (A) of SECTION 2.8.
"U.C.C." means the Uniform Commercial Code as in effect in the State of
Illinois.
SECTION 1.2. AGREEMENT DEFINITIONS. Unless otherwise defined herein or
the context otherwise requires, terms used in this Guaranty, including its
preamble and recitals, have the meanings provided in the Agreement.
SECTION 1.3. U.C.C. DEFINITIONS. Unless otherwise defined herein or the
context otherwise requires, terms for which meanings are provided in the U.C.C.
as in effect in the State of Illinois are used in this Guaranty, including its
preamble and recitals, with such meanings.
ARTICLE II
GUARANTY PROVISIONS
SECTION 2.1. GUARANTY. The Guarantor hereby absolutely, unconditionally
and irrevocably
(a) guarantees the full and punctual payment when
due, whether at stated maturity, by required prepayment,
declaration, acceleration, demand or otherwise, of all
Obligations of any Designated Subsidiary now or hereafter
existing under the Agreement, the Notes and each other
Loan Document to which any Designated Subsidiary is or may
become a party, whether for principal, interest, fees,
expenses or otherwise (including, without limitation, all
such amounts which would become due but for the operation
of the automatic stay under Section 362(a) of the United
States Bankruptcy Code, 11 U.S.C. ss.362(a), and the
operation of Sections 502(b) and 506(b) of the United
States Bankruptcy Code, 11 U.S.C. ss.502(b) and
ss.506(b)), and
(b) indemnifies and holds harmless each Lender Party
and each holder of any Note for any and all costs and
expenses (including reasonable attorney's fees (who may be
employees of the Lender Party) and expenses) incurred by
such Lender Party or such holder, as the case may be, in
enforcing any rights under this Guaranty.
This Guaranty constitutes a guaranty of payment when due and not of collection,
and the Guarantor specifically agrees that it shall not be necessary or required
that any Lender Party or any holder of any Note exercise any right, assert any
claim or demand or enforce any remedy whatsoever against any Designated
Subsidiary (or any other Person) before or as a condition to the obligations of
the Guarantor hereunder.
SECTION 2.2. ACCELERATION OF GUARANTY. The Guarantor agrees that, in
the event of the dissolution or insolvency of any Designated Subsidiary or the
Guarantor, or the inability or failure of any Designated Subsidiary or the
Guarantor to pay debts as they become due, or an assignment by any Designated
Subsidiary or the Guarantor for the benefit of creditors, or the commencement of
any case or proceeding in respect of any Designated Subsidiary or the Guarantor
under bankruptcy, insolvency or similar laws, and if such event shall occur at a
time when any of the Obligations of any Designated Subsidiary may not then be
due and payable, the Guarantor will pay to the Lenders forthwith the full amount
which would be payable hereunder by the Guarantor if all such Obligations were
then due and payable.
<PAGE>
SECTION 2.3. GUARANTOR ABSOLUTE, ETC. This Guaranty shall in all
respects be a continuing, absolute, unconditional and irrevocable guaranty of
payment, and shall remain in full force and effect until all Obligations of any
Designated Subsidiary have been finally paid in full in cash, all obligations of
the Guarantor hereunder shall have been finally paid in full in cash and all
Commitments shall have terminated. The Guarantor guarantees that the Obligations
of any Designated Subsidiary will be paid strictly in accordance with the terms
of the Agreement, the Notes, and each other Loan Document under which they
arise, regardless of any law, regulation or order now or hereafter in effect in
any jurisdiction affecting any of such terms or the rights of any Lender Party
or any holder of any Note with respect thereto. The liability of the Guarantor
under this Guaranty shall be absolute, unconditional and irrevocable
irrespective of:
2.3.1. any lack of validity, legality or
enforceability of the Agreement, any Note or any other
Loan Document;
2.3.2. the failure of any Lender Party or any holder
of any Note (i) to assert any claim or demand or to
enforce any right or remedy against any Designated
Subsidiary or any other Person (including any other
guarantor) under the provisions of the Agreement, any
Note, any other Loan Document or otherwise, or (ii) to
exercise any right or remedy against any other guarantor
of, or collateral securing, any Obligations of any
Designated Subsidiary;
2.3.3. any change in the time, manner or place of
payment of, or in any other term of, all or any of the
Obligations of any Designated Subsidiary, or any other
extension, compromise or renewal of any Obligation of any
Designated Subsidiary;
2.3.4. any reduction, limitation, impairment or
termination of any Obligations of any Designated
Subsidiary for any reason, including any claim of waiver,
release, surrender, alteration or compromise, and shall
not be subject to (and the Guarantor hereby waives any
right to or claim of) any defense or setoff, counterclaim,
recoupment or termination whatsoever by reason of the
invalidity, illegality, nongenuineness, irregularity,
compromise, unenforceability of, or any other event or
occurrence affecting, any Obligations of any Designated
Subsidiary or otherwise;
2.3.5. any amendment to, rescission, waiver, or
other modification of, or any consent to departure from,
any of the terms of the Agreement, any Note or any other
Loan Document;
2.3.6 . any addition, exchange, release, surrender or
non-perfection of any collateral, or any amendment to or
waiver or release or addition of, or consent to departure
from, any other guaranty, held by any Lender Party or any
holder of any Note securing any of the Obligations of any
Designated Subsidiary; or
2.3.7. any other circumstance which might otherwise
constitute a defense available to, or a legal or equitable
discharge of, any Designated Subsidiary, any surety or any
guarantor.
<PAGE>
SECTION 2.4. REINSTATEMENT, ETC. The Guarantor agrees that this
Guaranty shall continue to be effective or be reinstated, as the case may be, if
at any time any payment (in whole or in part) of any of the Obligations is
rescinded or must otherwise be restored by any Lender Party or any holder of any
Note, upon the insolvency, bankruptcy or reorganization of any Designated
Subsidiary or otherwise, all as though such payment had not been made.
SECTION 2.5. WAIVER, ETC. The Guarantor hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Obligations of any Designated Subsidiary and this Guaranty and any requirement
that the Agent, any other Lender Party or any holder of any Note protect,
secure, perfect or insure any security interest or Lien, or any property subject
thereto, or exhaust any right or take any action against any Designated
Subsidiary or any other Person (including any other guarantor) or entity or any
collateral securing the Obligations of any Designated Subsidiary.
SECTION 2.6. SUBROGATION. The Guarantor will not exercise any rights
which it may acquire by reason of any payment made hereunder, whether by way of
rights of subrogation, reimbursement or otherwise, until the prior payment, in
full and in cash, of all Obligations of the Designated Subsidiary. Any amount
paid to the Guarantor on account of any payment made hereunder prior to the
payment in full of all Obligations of the Designated Subsidiary shall be held in
trust for the benefit of the Lender Parties and each holder of a Note and shall
immediately be paid to the Agent and credited and applied against the
Obligations of the Designated Subsidiary, whether matured or unmatured, in
accordance with the terms of the Agreement; PROVIDED, HOWEVER, that if
a. the Guarantor has made payment to the Lender
Parties and each holder of a Note of all or any part of
the Obligations of the Designated Subsidiary, and
b. all Obligations of the Borrower and each other
Obligor have been paid in full and all Commitments have
been permanently terminated,
each Lender Party and each holder of a Note agrees that, at the Guarantor's
request, the Agent, on behalf of the Lender Parties and the holders of the
Notes, will execute and deliver to the Guarantor appropriate documents (without
recourse and without representation or warranty) necessary to evidence the
transfer by subrogation to the Guarantor of an interest in the Obligations of
the Designated Subsidiary resulting from such payment by the Guarantor. In
furtherance of the foregoing, for so long as any Obligations or Commitments
remain outstanding, the Guarantor shall refrain from taking any action or
commencing any proceeding against the Designated Subsidiary (or its successors
or assigns, whether in connection with a bankruptcy proceeding or otherwise) to
recover any amounts in respect of payments made under this Guaranty to any
Lender Party or any holder of a Note.
SECTION 2.7. SUCCESSORS, TRANSFEREES AND ASSIGNS: TRANSFERS OF NOTES,
ETC. This Guaranty shall (a) be binding upon the Guarantor, and its successors,
transferees and assigns; and (b) inure to the benefit of and be enforceable by
the Agent and each other Lender Party. Without limiting the generality of the
foregoing CLAUSE (B), any Lender may assign or otherwise transfer (in whole or
in part) any Note or Loan held by it to any other Person or entity, and such
other Person or entity shall thereupon become vested with all rights and
benefits in respect thereof granted to such Lender under any Loan Document
(including this Guaranty) or otherwise, subject, however, to any contrary
provisions in such assignment or transfer, and to the provisions of Section
10.11 and Article IX of the Agreement.
<PAGE>
SECTION 2.8. PAYMENTS FREE AND CLEAR OF TAXES, ETC. The Guarantor
hereby agrees that:
2.8.1. All payments by the Guarantor hereunder shall
be made in accordance with Section 4.7 of the Agreement
free and clear of and without deduction for any present or
future income, excise, stamp or franchise taxes and other
taxes, fees, duties, withholdings or other charges of any
nature whatsoever imposed by any taxing authority, but
excluding franchise taxes and taxes imposed on or measured
by any Lender Party's net income or receipts (such
non-excluded items being called "TAXES"). In the event
that any withholding or deduction from any payment to be
made by the Guarantor hereunder is required in respect of
any Taxes pursuant to any applicable law, rule or
regulation, then the Guarantor will
(a) pay directly to the relevant authority
the full amount required to be so withheld or
deducted;
(b) promptly forward to the applicable
Lender Party an official receipt or other
documentation satisfactory to such Lender Party
evidencing such payment to such authority; and
(c) pay to the applicable Lender Party such
additional amount or amounts as is necessary to
ensure that the net amount actually received by
such Lender Party will equal the full amount such
Lender Party would have received had no such
withholding or deduction been required.
Moreover, if any Taxes are directly asserted against any Lender Party with
respect to any payment received by such Lender Party hereunder or relating to
SECTION 5.1 of the Agreement, such Lender Party may pay such Taxes and the
Guarantor will promptly pay such additional amounts (including any penalties,
interest or expenses) as is necessary in order that the net amount received by
such Lender Party after the payment of such Taxes (including any Taxes on such
additional amount) shall equal the amount such Lender Party would have received
had no such Taxes been asserted.
2.8.2. If the Guarantor fails to pay any Taxes when
due to the appropriate taxing authority or fails to remit
to any Lender Party the required receipts or other
required documentary evidence, the Guarantor shall
indemnify each Lender Party for any incremental Taxes,
interest or penalties that may become payable by such
Lender Party as a result of any such failure.
2.8.3. Without prejudice to the survival of any other
agreement of the Guarantor hereunder, the agreements and
obligations of the Guarantor contained in this SECTION 2.8
shall survive the payment in full of the principal of and
interest on the Loans.
SECTION 2.9. CURRENCY PROTECTION. The Guarantor agrees that if and to
the extent that the Obligations are payable in any currency or currencies other
than the currency in which such Obligations were created or denominated (the
"Eurocurrency"), such aggregate amount of the Eurocurrency shall be increased,
to the extent necessary to avoid any loss to the Lender Parties, on account of
any change or changes in the value of such other currency or currencies compared
to the Eurocurrency at any time or times between the date hereof and the date or
dates of payment of the Obligations by the Guarantor.
<PAGE>
SECTION 2.10. JUDGMENTS. If the Guarantor fails to fulfill its
obligations as required by this guaranty, and suit is brought thereunder in any
court within the United States, then with respect to any of the Obligations
payable in a currency other than United States Dollars and for the purpose of
determining the amount of the judgment in United States Dollars, the applicable
rate of exchange shall be that at which Bank of America National Trust and
Savings Association sells such other currency in Chicago, in exchange for United
States Dollars, for cable transfer to the place where such Obligation was
payable by the Designated Subsidiary. Such selling rate shall be that which is
in effect on the Chicago business day on which judgment is given against the
Guarantor, or if such day is not a business day in Chicago, then on the Chicago
business day next preceding that on which judgment is given against the
Guarantor. The Guarantor agrees that its obligation pursuant to this paragraph
shall, notwithstanding any U.S. Dollar judgment, be discharged only to the
extent that following receipt by the Agent, for the benefit of the Lender
Parties of any sum adjudged to be due hereunder, the Agent is able in accordance
with normal banking procedure to purchase such other currency with the amount of
U.S. Dollars so adjudged to be due. The Agent shall endeavor to purchase such
other currency on the business day following receipt of payment of the U.S.
Dollar judgment, but if the other currency so purchased is less than the amount
originally due to the Lender Parties in such currency, the Guarantor agrees as a
separate obligation and notwithstanding any such judgment to indemnify the Agent
and the Lender Parties against such loss.
SECTION 2.11. INFORMATION CONCERNING DESIGNATED SUBSIDIARIES; NO
RELIANCE ON REPRESENTATIONS BY LENDERS. The Guarantor hereby warrants to the
Lenders that the Guarantor now has and will continue to have independent means
of obtaining information concerning the affairs, financial conditions and
business of each Designated Subsidiary. No Lender shall have any duty or
responsibility to provide the Guarantor with any credit or other information
concerning the affairs, financial condition or business of any Designated
Subsidiary which may come into such Lender's possession. TheGuarantor has
executed and delivered this guaranty without reliance upon any representation by
any Lender with respect to (a) the due execution, validity, effectiveness or
enforceability of any instrument, document or agreement evidencing or relating
to any of the Obligations or any Loan, or other financial accommodation made or
granted to any Designated Subsidiary; (b) the validity, genuineness,
enforceability, existence, value or sufficiency of any property securing any of
the Obligations or the creation, perfection or priority of any lien or security
interest in such property; or (c) the existence, number, financial condition or
creditworthiness of other guarantors or sureties with respect to any of the
Obligations.
SECTION 2.12. INDEMNIFICATION. In consideration of the execution and
delivery of the Agreement by each Lender and the extension of the Commitments,
the Guarantor hereby indemnifies, exonerates and holds the Agent and each Lender
and each of their respective officers, directors, employees and agents
(collectively, the "INDEMNIFIED PARTIES") free and harmless from and against any
and all actions, causes of action, suits, losses, costs, liabilities and
damages, and expenses incurred in connection therewith (irrespective of whether
any such Indemnified Party is a party to the action for which indemnification
hereunder is sought), including reasonable attorneys' fees and disbursements
(collectively, the "INDEMNIFIED LIABILITIES"), incurred by the Indemnified
Parties or any of them as a result of, or arising out of, or relating to
(a) any transaction or activity financed or to be
financed in whole or in part, directly or indirectly,
with the proceeds of any Loan to a Designated Subsidiary;
(b) the entering into and performance of the
Agreement and any other Loan Document by any of the
Indemnified Parties; or
<PAGE>
(c) any investigation, litigation or proceeding
related to the acquisition of a permit or license
necessary to borrow hard currency (when applicable);
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's gross
negligence or wilful misconduct. If and to the extent that the foregoing
undertaking may be unenforceable for any reason, the Guarantor hereby agrees to
make the maximum contribution to the payment and satisfaction of each of the
Indemnified Liabilities which is permissible under applicable law.
The obligations of the Guarantor under this SECTION 2.12 shall
survive any termination of this Guaranty, the payment in full of all Obligations
and the termination of all Commitments.
ARTICLE III
MISCELLANEOUS PROVISIONS
SECTION 3.1. LOAN DOCUMENT. This Guaranty is a Loan Document executed
pursuant to the Agreement and shall (unless otherwise expressly indicated
herein) be construed, administered and applied in accordance with the terms and
provisions thereof.
SECTION 3.2. BINDING ON SUCCESSORS, TRANSFEREES AND ASSIGNS;
ASSIGNMENT. In addition to, and not in limitation of, SECTION 2.7, this
Guaranty shall be binding upon the Guarantor and its successors, transferees and
assigns and shall inure to the benefit of and be enforceable by each Lender
Party and each holder of a Note and their respective successors, transferees and
assigns (to the full extent provided pursuant to SECTION 2.7); PROVIDED,
HOWEVER, that the Guarantor may not assign any of its obligations hereunder
without the prior written consent of the Agent and the Required Lenders.
SECTION 3.3. AMENDMENTS, ETC. No amendment to or waiver of any
provision of this Guaranty, nor consent to any departure by the Guarantor
herefrom, shall in any event be effective unless the same shall be in writing
and signed by the Agent, and then such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given.
SECTION 3.4. ADDRESSES FOR NOTICES TO THE GUARANTOR. All notices and
other communications hereunder to the Guarantor shall be in writing (including
facsimile communication) and mailed or faxed or delivered to it, addressed to it
at the address or fax number set forth below its signature hereto or at such
other address as shall be designated by the Guarantor in a written notice to the
Agent at the address specified in the Agreement complying as to delivery with
the terms of this Section. All such notices and other communications shall, when
mailed or faxed, respectively, be effective when deposited in the mails or
faxed, respectively, addressed as aforesaid.
SECTION 3.5. NO WAIVER; REMEDIES. In addition to, and not in limitation
of, SECTION 2.3 and SECTION 2.5, no failure on the part of any Lender Party or
any holder of a Note to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right hereunder preclude any other or further exercise thereof
or the exercise of any other right. The remedies herein provided are cumulative
and not exclusive of any remedies provided by law.
SECTION 3.6. SECTION CAPTIONS. Section captions used in this Guaranty
are for convenience of reference only, and shall not affect the construction of
this Guaranty.
<PAGE>
SECTION 3.7. SETOFF. In addition to, and not in limitation of, any
rights of any Lender Party or any holder of a Note under applicable law, each
Lender Party and each such holder shall, upon the occurrence of any Default,
have the right to appropriate and apply to the payment of the obligations of the
Guarantor owing to it hereunder, whether or not then due, (i) any and all
balances, credits, deposits, accounts or moneys of the Guarantor then or
thereafter maintained with such Lender Party or such holder, (ii) any and all
property of every kind or description of or in the name of the Guarantor now or
hereafter, for any reason or purpose whatsoever, in the possession or control
of, or in transit to, such Lender Party, such holder or any agent or bailee for
such Lender Party or such holder or (iii) any payments owing from any Lender
Party to Guarantor; PROVIDED, HOWEVER, that any such appropriation and
application shall be subject to the provisions of Section 4.8 of the Agreement.
SECTION 3.8. SEVERABILITY. Wherever possible each provision of this
Guaranty shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guaranty shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Guaranty.
SECTION 3.9. GOVERNING LAW, ENTIRE AGREEMENT, ETC. THIS GUARANTY SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE
OF ILLINOIS. THIS GUARANTY AND THE OTHER LOAN DOCUMENTS CONSTITUTE THE ENTIRE
UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF
AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT THERETO.
SECTION 3.10. FORUM SELECTION AND CONSENT TO JURISDICTION. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
GUARANTY, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF THE LENDER PARTIES OR THE GUARANTOR SHALL BE
BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF ILLINOIS OR IN
THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS;
PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY PROPERTY MAY BE
BROUGHT, AT THE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH
PROPERTY MAY BE FOUND. THE GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO
THE JURISDICTION OF THE COURTS OF THE STATE OF ILLINOIS AND OF THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS FOR THE PURPOSE OF ANY SUCH
LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT
RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION. THE GUARANTOR FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE
PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF ILLINOIS. THE
GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE
LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO
ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM. TO THE EXTENT THAT THE GUARANTOR HAS OR HEREAFTER MAY ACQUIRE ANY
IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER
THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF
EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, THE GUARANTOR
HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS
GUARANTY AND THE OTHER LOAN DOCUMENTS.
SECTION 3.11. WAIVER OF JURY TRIAL. THE GUARANTOR HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS GUARANTY, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE LENDER PARTIES OR THE
GUARANTOR. THE GUARANTOR ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND
SUFFICIENT CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE LENDERS ENTERING INTO THE AGREEMENT.
<PAGE>
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
ANDREW CORPORATION
By:________________
Title:________________
Address: 10500 West 153rd Street
Orland Park, IL 60462
Attention: Mr. Jeffrey Gittelman
Facsimile No.: 708-349-5287
<PAGE>
EXHIBIT D
CONTINUATION/CONVERSION NOTICE
Bank of America National Trust
and Savings Association, as Agent
231 South LaSalle Street
Chicago, Illinois 60697
ANDREW CORPORATION
Gentlemen and Ladies:
This Continuation/Conversion Notice is delivered to you pursuant to
Section 2.4 of the Amended and Restated Credit Agreement, dated as of November
1, 1997, the "AGREEMENT"), among Andrew Corporation, a Delaware corporation (the
"COMPANY"), certain subsidiaries of the Company, certain financial institutions
and Bank of America National Trust and Savings Association, (the "AGENT").
Unless otherwise defined herein or the context otherwise requires, terms used
herein have the meanings provided in the Agreement.
The Company hereby requests that on __________, 19___, the following
Loans be continued or converted, as applicable:
(1) $________ of the presently outstanding
principal amount of the Loans to [BORROWER'S NAME]
originally made on ________, 19___ presently being
maintained as [Reference Rate Loans] [Eurodollar Rate
Loans] [Eurocurrency Rate Loans] [Quoted Rate Loans] be
[converted into] [continued as] [Eurodollar Rate Loans
having an Interest Period of _______ months]
[Eurocurrency Rate Loans having an Interest Period of
_______ months] [Quoted Rate Loans having an Interest
Period of _______] [Reference Rate Loans], and
(2) $________ of the presently outstanding
principal amount of the Loans to [BORROWER'S NAME]
originally made on _______, 19___ presently being
maintained as [Reference Rate Loans] [Eurodollar Rate
Loans] [Eurocurrency Rate Loans] [Quoted Rate Loans] be
[converted into] [continued as] [Eurodollar Rate Loans
having an Interest Period of _______ months]
[Eurocurrency Rate Loans having an Interest Period of
_______ months] [Quoted Rate Loans having an Interest
Period of _______] [Reference Rate Loans],
The Company hereby:
(a) certifies and warrants that no Default has
occurred and is continuing; and
(b) agrees that if prior to the time of such
continuation or conversion any matter certified to
herein by it will not be true and correct at such time
as if then made, it will immediately so notify the
Agent.
<PAGE>
Except to the extent, if any, that prior to the time of the continuation or
conversion requested hereby the Agent shall receive written notice to the
contrary from the Company, each matter certified to herein shall be deemed to be
certified at the date of such continuation or conversion as if then made.
The Company has caused this Continuation/Conversion Notice to be
executed and delivered, and the certification and warranties contained herein to
be made, by its Authorized Officer this ____ day of ________, 19___ .
ANDREW CORPORATION
By:_________________________
Name:____________________
Title:___________________
<PAGE>
EXHIBIT E
Designation Letter
[Date]
Bank of America National Trust
and Savings Association, as Agent
231 South LaSalle Street
Chicago, Illinois 60697
Attention:
Ladies and Gentlemen:
Reference is hereby made to an Amended and Restated Credit Agreement dated
as of November 1, 1997 (together with all amendments, if any, from time to time
made thereto, the "AGREEMENT") among Andrew Corporation, a Delaware corporation
(the "COMPANY"), certain subsidiaries of the Company, certain financial
institutions as Lenders and Bank of America National Trust and Savings
Association (the "AGENT"). Unless otherwise defined herein or the context
otherwise requires, terms used herein have the meanings provided in the
Agreement.
The Company hereby certifies that ______________, a ___________
_______________ is a Designated Subsidiary of the Company. The Company hereby
designates _________________ as a Designated Subsidiary as of the date of this
letter and hereby requests that the Lenders make Loans to such Designated
Subsidiary pursuant to the terms and conditions of the Agreement.
Very truly yours,
ANDREW CORPORATION
By:________________________________
Title:_____________________________
(Authorized Officer)
<PAGE>
The undersigned agrees that it shall be a Designated Subsidiary under the
Agreement and assumes all obligations as such.
[Designated Subsidiary]
By:________________________________
Title:_____________________________
(Authorized Officer)
<PAGE>
EXHIBIT F
Form of Extension Letter
[Date]
Andrew Corporation
10500 West 153rd Street
Orland Park, Illinois 60462
Re: EXTENSION OF STATED MATURITY DATE
Ladies and Gentlemen:
Reference is hereby made to that certain Amended and Restated Credit
Agreement dated as of November 1, 1997, (the "AGREEMENT") among Andrew
Corporation, a Delaware corporation (the "COMPANY"), certain subsidiaries of the
Company, certain financial institutions (the "LENDERS") and Bank of America
National Trust and Savings Association (the "AGENT"). Unless otherwise defined
herein or the context otherwise requires, terms used herein have the meanings
provided in the Agreement.
This letter is delivered pursuant to SECTION 2.2.2 of the Agreement.
Pursuant to the request of the Company, this is to notify the Company and each
other Borrower that the Agent has received written notice from Lenders holding
100% of the Commitments that such Lenders agree to an extension of the Stated
Maturity Date to and including ____________. Accordingly, upon fulfillment of
the conditions precedent set forth below, all references in the Agreement to the
"Stated Maturity Date" shall mean and be a reference to ________ __, 19__.
The amendment to the Agreement, as set forth in the preceding paragraph,
shall be effective as of the date of this letter upon receipt by the Agent, for
the benefit of each Lender, of each of the following, in such number of copies
sufficient for each Lender, all in form and substance and dated as of date(s)
satisfactory to the Agent and the Lenders:
(a) a counterpart original of this letter duly executed by the Company
and each other Borrower;
(b) resolutions of the Board of Directors of each Borrower, certified
by the secretary or an assistant secretary of such Borrower
authorizing the extension of the Stated Maturity Date of the
Agreement as set forth herein and the execution and delivery of
all documents and instruments required to be delivered in
connection herewith;
(c) a certificate of the secretary or assistant secretary of each
Borrower certifying the office held by and the true signatures of
the officers of such Borrower authorized to execute and deliver
this Extension Letter and all documents and instruments to be
delivered herewith;
(d) such other documents and instruments as the Agent or any Lender,
requesting through the Agent, may reasonably request.
The Company agrees to pay the Agent upon demand for all reasonable
expenses (including attorneys' fees, which attorneys may be employees of the
Agent) incurred in connection with the preparation, negotiation and execution of
this Extension Letter.
<PAGE>
This letter may be executed in as many counterparts as may be deemed
necessary or convenient and may be executed by the different parties hereto on
separate counterparts, each of which, when so executed, shall be deemed an
original but all such counterparts shall constitute but one and the same
instrument.
As amended with this letter, the Agreement shall remain in full force
and effect. Each Borrower hereby confirms that each of its Notes remains in full
force and effect.
This letter shall be binding upon the Company, each other Borrower
which is signatory hereto, each Lender and the Agent and their respective
successors and assigns, and shall inure to the benefit of the Lenders, the
Agent, the Company and any such Borrowers and the successors and assigns of the
Lenders and the Agent.
Each reference in the Agreement to "this Agreement", "hereunder",
"hereof", or words of like import, and each reference to the Agreement in any
and all instruments or documents provided for in the Agreement or delivered or
to be delivered thereunder or in connection therewith, shall be deemed a
reference to the Agreement as amended hereby.
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By:________________________________
Title: ____________________________
ANDREW CORPORATION
By:________________________________
Title:_____________________________
[BORROWER]
By:________________________________
Title: ____________________________
<PAGE>
EXHIBIT G
Form of Notice of Purchase of Margin Stock
Bank of America National Trust
and Savings Association, as Agent
231 South LaSalle Street
Chicago, Illinois 60697
Re: PURCHASE OF MARGIN STOCK
Ladies and Gentlemen:
Reference is hereby made to that certain Amended and Restated Credit
Agreement dated as of November 1, 1997, the "AGREEMENT") among Andrew
Corporation, a Delaware corporation (the "COMPANY"), certain subsidiaries of the
Company, certain financial institutions (the "LENDERS") and Bank of America
National Trust and Savings Association the "AGENT"). Unless otherwise defined
herein or the context otherwise requires, terms used herein have the meanings
provided in the Agreement.
This letter is delivered pursuant to SECTION 7.1.1(H) of the Agreement.
The Company hereby notifies the Agent and the Lenders that on ___________, 19__,
the Company purchased (common/preferred and other distinguishing characteristics
of stock) stock issued by [NAME OF ISSUER] for a purchase price of $___________
per share or $____________ in the aggregate.
After such purchase, ______% of the current market value of the
Company's Consolidated Net Assets was represented by margin stock.
Very truly yours,
ANDREW CORPORATION
By:_______________________________
Title:____________________________
<PAGE>
EXHIBIT H
LENDER ASSIGNMENT AGREEMENT
THIS LENDER ASSIGNMENT AGREEMENT (the "ASSIGNMENT") is made and entered
into as of ______________, 1997 by and between _____________ (the "ASSIGNOR")
and ______________ (the "ASSIGNEE").
W I T N E S S E T H
WHEREAS, an Amended and Restated Credit Agreement dated as of November
1, 1997, the ("AGREEMENT") has been entered into among Andrew Corporation, a
Delaware corporation (the "COMPANY"), certain Designated Subsidiaries of the
Company, the financial institutions from time to time party thereto including
the Assignor (individually a "LENDER" and collectively, the "LENDERS"), and Bank
of America National Trust and Savings Association as agent for the Lenders (in
such capacity, the "AGENT"). Unless otherwise defined herein, terms defined in
the Agreement are used herein with the same meanings; and
WHEREAS, pursuant to the Agreement, on the date hereof, and without
giving effect to any other assignments to become effective on the Assignment
Effective Date (hereafter defined) or any other assignments thereof which have
not yet become effective (a) the Assignor's Commitment (the "ASSIGNOR'S
COMMITMENT") is the amount specified in ITEM 1 of SCHEDULE 1 hereto, (b) the
aggregate principal amount of outstanding Reference Rate Loans, Eurodollar
Loans, Eurocurrency Loans and Quoted Rate Loans made by the Assignor to the
Borrowers pursuant to the Assignor's Commitment is specified in ITEM 2 of
SCHEDULE 1 hereto and (c) the Assignor's Percentage is the percentage set forth
in ITEM 3 of SCHEDULE 1 hereto; and
WHEREAS, the Assignor wishes to sell to the Assignee, and the Assignee
wishes to purchase and assume from the Assignor (a) the portion of the
Assignor's Commitment specified in ITEM 4 of SCHEDULE 1 hereto (the "ASSIGNED
COMMITMENT") and (b) the portion of the Assignor's outstanding Reference Rate
Loans, Eurodollar Loans, Eurocurrency Loans and Quoted Rate Loans Revolving
Loans (the "ASSIGNED LOANS"), specified in ITEM 5 of SCHEDULE 1 hereto.
NOW, THEREFORE, the parties hereto agree as follows:
1. Subject to the terms and conditions set forth herein, the Assignor
hereby sells and assigns to the Assignee, and the Assignee hereby purchases and
assumes from the Assignor, WITHOUT RECOURSE, as of the Assignment Effective Date
and without giving effect to other assignments to become effective on the
Assignment Effective Date or any other assignments thereof which have not yet
become effective (a) all right, title and interest of the Assignor to the
Assigned Loans and (b) all obligations of the Assignor under the Agreement with
respect to the Assigned Commitment including, without limitation, any Notes held
by the Assignor and any interest, fees and commissions which accrue after the
Assignment Effective Date; PROVIDED, HOWEVER, that Assignee does not purchase or
assume any liability resulting from acts or omissions of Assignor occurring
prior to the Assignment Effective Date. After giving effect to the transactions
contemplated by this Assignment, (i) the amount of the Assigned Loans shall be
the amounts set forth in ITEM 5 of SCHEDULE 1 and (ii) Assignor's and Assignee's
respective Percentages and Commitments shall be set forth in ITEM 6 of SCHEDULE
1 hereto.
<PAGE>
2. The Assignor (i) represents and warrants that the information set forth
in ITEMS 1, 2 and 3 is true and correct as of the date hereof; (ii) represents
and warrants that (a) it is the legal and beneficial owner of the Loans and
Commitment being assigned by it hereunder, (b) it has the full power and legal
right to execute and deliver this Assignment and to perform its obligations
hereunder, (c) the execution, delivery of this Assignment, and the performance
by it of its obligations hereunder, have been duly authorized by all necessary
corporate or other action and do not violate any provisions of its charter or
by-laws or any contractual obligation or requirement of law binding upon it and
(d) the Assigned Loans and Assigned Commitment are free and clear of any adverse
claim; (iii) makes no representation or warranty and assumes no responsibility
with respect to any statements, warranties or representations made by any
Borrower or any other Person in or in connection with the Agreement or any other
Loan Document or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Agreement or any other Loan Document or any other
instrument or document furnished by or on behalf of any Borrower or any other
Person pursuant thereto; (iv) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Borrower or any
other Person or the performance or observance by any Borrower or any other
Person of any of its obligations under the Agreement or any other Loan Document
or any agreement, instrument or document furnished pursuant thereto; and (v)
represents and warrants that, to its knowledge, the Agent has not notified the
Company of the existence of any Default which currently exists.
3. The Assignee (i) represents and warrants that (a) it has the full power
and legal right to execute and deliver this Assignment and to perform its
obligations hereunder and, to the extent of its interest therein, under the
Agreement and the other Loan Documents, and (b) the execution and delivery by it
of this Assignment, and the performance by it of its obligations hereunder and,
to the extent of its interest therein, under the Agreement and the other Loan
Documents, have been duly authorized by all necessary corporate or other action
and do not violate any provisions of its charter or by-laws or any contractual
obligation or requirement of law binding upon it; (ii) confirms that it has
received a copy of the Agreement and the other Loan Documents, together with
copies of the most currently available financial statements referred to in
SECTION 7.1.1 of the Agreement and such other documents and information as it
has deemed appropriate to make its own credit analysis and decision to enter
into this Assignment; (iii) agrees that it will, independently and without
reliance upon the Agent, the Assignor or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the
Agreement; (iv) appoints and authorizes the Agent to take such actions on its
behalf and to exercise such powers under the Agreement and the other Loan
Documents as are delegated to the Agent by the terms thereof, together with such
powers as are reasonably incidental thereto; (v) agrees that it will become a
party to and a Lender under the Agreement on the Assignment Effective Date and
perform in accordance with their terms all of the obligations which by the terms
of the Agreement are required to be performed by it as a Lender; (vi) specifies
as its address for notices the office set forth in ITEM 7 of SCHEDULE 1 hereto;
and (vii) agrees that no fee is payable by Borrower to Assignee in connection
with the execution and delivery of this Assignment.
4. The Assignor agrees that the Assignor shall pay to the Agent, for the
account of the Agent, any processing fee required by the Agent to be paid to it
pursuant to SECTION 10.11.1 of the Agreement. The Assignor further agrees that,
within one Banking Day following receipt of new Notes duly executed by a
Borrower reflecting the amount of the Assigned Commitment and the Assigned
Loans, it will return its superseded Note(s) to the Agent for the account of
such Borrower.
<PAGE>
5. The obligations of the Assignee and the Assignor hereunder shall be
subject to the requirement that the Assignor (a) shall have received good funds
representing payment in full of all amounts due from the Assignee for purchase
of the Commitment and Loans being purchased by and assigned to the Assignee and
(b) complied with all other provisions of this Assignment and all applicable
provisions of SECTION 10.11 of the Agreement. The effective date of this
Assignment (the "ASSIGNMENT EFFECTIVE DATE") shall be ______________ or, if
later, the first Banking Day on which the requirements of the preceding sentence
of this SECTION 5 have been satisfied. Following the execution of this
Assignment by the Assignor and the Assignee and the acknowledgment of the same
by the Company and each other Borrower, it will be delivered to the Agent for
acceptance and recording by the Agent.
6. Upon such acceptance and recording, as of the Assignment Effective Date,
(i) the Assignee shall be a party to the Agreement and, to the extent provided
in this Assignment, have the rights and obligations of a Lender thereunder and
under the other Loan Documents and (ii) the Assignor shall, to the extent
provided in this Assignment, relinquish its rights and be released from its
obligations under the Agreement and under the other Loan Documents.
7. Upon such acceptance and recording, from and after the Assignment
Effective Date, the Agent shall make all payments received by it under the
Agreement and the other Loan Documents in respect of the interest assigned
hereby (including, without limitation, all payments of principal, interest and
fees with respect thereto) to the Assignee. The Assignor and Assignee shall make
all appropriate adjustments in payments under the Agreement for periods prior to
the Assignment Effective Date directly between themselves.
8. This Assignment shall be governed by, and construed in accordance with,
the internal laws and decisions (as opposed to conflicts of law provisions) of
the State of Illinois.
9. This Assignment shall inure to the benefit of and be binding upon
successors and assigns of the Assignor and the Assignee.
10. This Assignment shall supersede any prior agreement or understanding
between the parties (other than the Agreement and the other Loan Documents) as
to the subject matter hereof. This Assignment shall be deemed to be a Loan
Document for all purposes under the Agreement.
11. This Assignment may be executed by Assignor and Assignee in any number
of counterparts and on the same or separate counterparts, each of which, when
executed and delivered, shall be an original but all of which taken together,
shall be but a single Lender Assignment Agreement.
<PAGE>
IN WITNESS WHEREOF, the Assignor and the Assignee have executed this
Assignment as of this ____ day of _____________, 19___.
_____________________, Assignor
By: ______________________________
Title: Vice President
_____________________, Assignee
By: ______________________________
Title: ___________________________
Pursuant to SECTION 10.11.1 of the Agreement, the Company, on behalf of
itself and each of the Designated Subsidiaries, hereby agrees, accepts and
consents to the foregoing Assignment. The Company further agrees, on behalf of
itself and each of the Designated Subsidiaries that, within five Banking Days
from Assignment Effective Date, it will execute and deliver, and will cause each
Designated Subsidiary to execute and deliver, to the Agent, a new Note to the
Assignee and the Assignor, reflecting the amount of the Assignor's Commitment
assigned to the Assignee pursuant to this Assignment, and the Assignor's
Commitment less the Assigned Commitment respectively.
ANDREW CORPORATION
By: _____________________________
Title: __________________________
Date: ____________________________
Pursuant to SECTION 10.11.1 of the Agreement the undersigned, as Agent for
the Lenders (i) accepts the foregoing Assignment and (ii) agrees that the
execution and delivery of the Assignment shall not alter the rights and
obligations of the undersigned as Agent.
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Agent
for the Lenders
By: ______________________________
Title: Vice President
Date: ____________________________
<PAGE>
SCHEDULE 1
to
Lender Assignment Agreement
dated as of ________________, 19___ between
_________________________, Assignor
and
__________________, Assignee
ITEM 1. Assignor's Commitment $_______________
ITEM 2. Assignor's Loans Outstanding
COMPANY:
Reference Rate Loans $_______________
Eurodollar Loans $_______________
Eurocurrency Loans $_______________
Quoted Rate Loans $_______________
[DESIGNATED SUBSIDIARY]
Reference Rate Loans $_______________
Eurodollar Loans $_______________
Eurocurrency Loans $_______________
Quoted Rate Loans $_______________
Item 3. Assignor's Percentage _____________ %
ITEM 4. Amount of Assigned Commitment $_______________
- ------
ITEM 5. Amount of Assigned Loans
COMPANY:
Reference Rate Loans $_______________
Eurodollar Loans $_______________
Eurocurrency Loans $_______________
Quoted Rate Loans $_______________
[DESIGNATED SUBSIDIARY]
Reference Rate Loans $_______________
Eurodollar Loans $_______________
Eurocurrency Loans $_______________
Quoted Rate Loans $_______________
ITEM 6. Commitments and Percentage After Assignment
Commitments
a. Assignor $_______________
b. Assignee $_______________
Percentages
a. Assignor ______________ %
b. Assignee ______________ %
ITEM 7. Notice Address of Assignee
==========================
--------------------------
Attention: _______________
Telephone: _______________
Facsimile: _______________
<PAGE>
NOTES TO SCHEDULE 1
1. Insert the dollar amount of the Assignor's Commitment prior to the
assignment.
2. Insert the total amount of outstanding Loans under the Assignor's
Commitments prior to the assignment. The descriptions of the Loan Types
should conform to the Agreement, and should be broken down by Borrower.
3. Insert the Assignor's Percentage prior to the assignment.
4. Insert the dollar amount of the Assignor's Commitment being assigned.
5. Insert the amount of the outstanding Loans being assigned. Description of
Loan Types should be consistent with Item 2 and should be broken down by
Borrower.
6. Insert Commitment and Percentages of Assignor and Assignee after giving
effect to the assignment.
7. Insert address and notice information for the Assignee.
<PAGE>
EXHIBIT I
November 1, 1997
Bank of America National Trust
and Savings Association
Individually and as Agent
231 South LaSalle Street
Chicago, Illinois 60697
The First National Bank of Chicago
One First National Plaza
Chicago, Illinois 60670
ABN AMRO Bank N.V.
135 South LaSalle Street
Chicago, Illinois 60603
Ladies and Gentlemen:
We are counsel for Andrew Corporation (the "Company") and this opinion is
delivered at its request pursuant to Section 4.1(d) of the Amended and Restated
Credit Agreement dated as of November 1, 1997 (the "Agreement") between the
Company, certain Subsidiaries of the Company, the various financial institutions
party thereto and Bank of America National Trust and Savings Association, as
Agent. Capitalized terms used but not otherwise defined in this opinion have the
meanings ascribed in the Agreement.
As counsel for the Company, we have examined an executed counterpart of the
Agreement and originals of the Replacement Notes. We also have examined
originals or copies, certified or otherwise identified to our satisfaction, of
such documents, corporate records, certificates of public officials and such
other documents as we have deemed necessary for purposes of this opinion. In
this examination, we have assumed the genuineness of all signatures (other than
those of officers of the Company), the legal capacity of all individuals who
have executed the documents we have reviewed, the authenticity of all documents
submitted to us as originals and the conformity with the originals of all
documents submitted to us as copies. As to matters of fact material to our
opinion, we have relied, without independent verification, on the
representations in the Agreement and the certificates referred to above. Our
examination also extended to such matters of law as we have deemed necessary for
purposes of this opinion. For purposes of our opinion in paragraph 1 as to the
corporate existence and good standing of the Company under the laws of the State
of Delaware and the good standing of the Company under the laws of the State of
Illinois, we have relied exclusively upon the certificates issued by the
Secretaries of State of Delaware and Illinois. Such opinion is not intended to
provide any conclusion or assurance beyond that conveyed by such certificates.
Whenever our opinion with respect to factual matters is indicated to be
based on our knowledge, we are referring to the actual knowledge of Dewey B.
Crawford, the primary lawyer having supervisory responsibility for the Company's
relationship with this firm, and of Kimberly K. Rubel, who are the Gardner,
Carton & Douglas attorneys who have given substantial attention on behalf of the
Company in connection with this matter. Except as expressly set forth herein, we
have not undertaken any independent investigation to determine the existence or
absence of such facts, and no inference as to our knowledge of the existence or
absence of such facts should be drawn from such representation.
<PAGE>
Based upon the foregoing, and subject to the qualifications hereinafter set
forth, we are of the opinion that:
1. The Company is a corporation duly organized and validly existing in good
standing under the laws of the State of Delaware, and is duly qualified and in
good standing as a foreign corporation in the State of Illinois.
2. The Company has full corporate power and authority to enter into the
Agreement, the Replacement Notes and the Guaranty and to perform its obligations
under the Agreement, the Replacement Notes and the Guaranty.
3. The execution and delivery of the Agreement, the Replacement Notes and
the Guaranty, the performance by the Company of its obligations under the
Agreement, the Replacement Notes and the Guaranty, and the borrowings by the
Company under the Agreement, have been duly authorized by all necessary
corporate action, and the Agreement, the Replacement Notes and the Guaranty have
been duly executed and delivered by an authorized officer of the Company, and
constitute the legal, valid and binding agreements of the Company, enforceable
in accordance with their terms, except to the extent that enforcement thereof
may be limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or similar laws of general application relating to or
affecting the enforcement of the rights of creditors or by equitable principles,
regardless of whether enforcement is sought in a proceeding in equity or at law.
4. The execution and delivery of the Agreement, the Replacement Notes and
the Guaranty by the Company and the performance by the Company of its
obligations under the Agreement, the Replacement Notes and the Guaranty do not
violate, result in the breach of, or constitute a default under, (i) any
provision in the Company's certificate of incorporation or by-laws, (ii) any
provision in any indenture, mortgage, loan agreement or other agreement filed as
an exhibit to the Company's Annual Report on Form 10-K for the fiscal year ended
September 30, 1996, (iii) any law, statute, rule or regulation that, in our
experience, is normally applicable both to general business corporations that
are not engaged in regulated business activities and to transactions of the type
contemplated by the Agreement, or (iv) to our knowledge, any writ, order or
decision of any court or governmental instrumentality that is binding on the
Company. Notwithstanding the preceding sentence, we express no opinion as to
whether (w) the execution and delivery of the Agreement, the Replacement Notes
or the Guaranty, (x) the performance by the Company of its obligations under the
Agreement, Replacement Notes and the Guaranty, (y) the borrowings by the Company
under the Agreement, or (z) the compliance by the Company with the terms and
provisions thereof will constitute a breach of, or a default under, any covenant
or provision that requires financial calculations contained in any agreement to
which the Company is a party.
5. No authorization, approval or consent of any governmental or regulatory
body is necessary or required in connection with the execution and delivery by
the Company of the Amendment, the Replacement Notes or the Guaranty and no
registrations or undertakings by or with any governmental authority are required
in connection with the borrowings by the Company under the Agreement, as amended
by the Amendment.
6. No filings, recordations, notifications, registrations, notarizations or
authentications are necessary nor must any stamp or similar taxes be paid in
connection with the execution, delivery or performance by the Company of the
Guaranty, the Agreement or the Replacement Notes.
Our opinion is limited to the laws of the State of Illinois, the General
Corporation Law of the State of Delaware and the federal laws of the United
States.
<PAGE>
The foregoing opinions are subject to and qualified by the effect of any
requirement that the Agent or the Lenders take certain actions or make certain
determinations in a commercially reasonable manner and in good faith. Moreover,
we express no opinion as to the enforceability of (a) any waiver of the right to
a jury trial, (b) any provision requiring the payment of interest on interest,
(c) express or implicit waivers of broad or vaguely stated rights, unknown
future rights, defenses to obligations or rights granted by law, where such
waivers are against public policy or prohibited by law, or (d) indemnity and
contribution rights that may be against public policy.
This opinion speaks as of the time of its delivery on the date it
bears. We do not assume any obligation to provide you with any subsequent
opinion or advice by reason of any fact about which we did not have knowledge at
that time, by reason of any change subsequent to that time in any law covered by
any of our opinions, or for any other reason.
This opinion is solely for the benefit of you, your counsel and your
permitted successors and assigns in connection with the transactions
contemplated by the Agreement and may not be relied upon by any other Person or
for any other purpose, or delivered to any other Person for any purpose, without
our prior written consent.
Very truly yours,
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS...................................1
SECTION 1.1. DEFINED TERMS.........................................1
SECTION 1.2. USE OF DEFINED TERMS ................................17
SECTION 1.3. CROSS-REFERENCES.....................................17
SECTION 1.4. ACCOUNTING AND FINANCIAL DETERMINATIONS17............17
ARTICLE II
COMMITMENTS, BORROWING PROCEDURES AND NOTES.......................17
SECTION 2.1. COMMITMENTS..........................................17
SECTION (1) COMMITMENT OF EACH LENDER............................17
SECTION 2.2. REDUCTION OF COMMITMENT AMOUNT; EXTENSION
OF STATED MATURITY DATE..............................18
SECTION (1) REDUCTION OF COMMITMENT AMOUNT.......................18
SECTION (2) EXTENSION OF STATED MATURITY DATE....................18
SECTION 2.3. BORROWING PROCEDURE..................................18
SECTION (1) EUROCURRENCY RATE LOANS AND EURODOLLAR RATE LOANS....19
SECTION (2) QUOTED RATE LOANS....................................19
SECTION (3) REFERENCE RATE LOANS.................................20
SECTION (4) PROCEEDS.............................................20
SECTION 2.4. CONTINUATION AND CONVERSION ELECTIONS................20
SECTION (1) EUROCURRENCY RATE LOANS, EURODOLLAR RATE LOANS
AND REFERENCE RATE LOANS.............................21
SECTION (2) QUOTED RATE LOANS....................................21
SECTION 2.5. CURRENCY EQUIVALENTS.................................22
SECTION 2.6. FUNDING..............................................23
SECTION 2.7. NOTES................................................23
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES........................23
SECTION 3.1. REPAYMENTS AND PREPAYMENTS...........................23
SECTION 3.2. INTEREST PROVISIONS..................................24
SECTION (1) RATES................................................24
SECTION (2) POST-MATURITY RATES..................................25
SECTION (3) PAYMENT DATES........................................25
SECTION 3.3. FEES.................................................26
SECTION (1) FACILITY FEE.........................................26
SECTION (2) AGENT'S FEE..........................................26
SECTION 3.4. COMPUTATION OF INTEREST AND FEES.....................26
ARTICLE IV
CERTAIN INTEREST RATE AND OTHER PROVISIONS........................26
SECTION 4.1. FIXED RATE LENDING UNLAWFUL..........................26
SECTION 4.2. DEPOSITS UNAVAILABLE.................................27
SECTION 4.3. INCREASED FIXED RATE LOAN COSTS, ETC.................27
SECTION 4.4. INCREASED CAPITAL COSTS WITH RESPECT TO COMMITMENTS..27
SECTION 4.5. FUNDING LOSSES.......................................28
SECTION 4.6. TAXES................................................28
SECTION 4.7. PAYMENTS, COMPUTATIONS, ETC..........................29
SECTION 4.8. SHARING OF PAYMENTS..................................30
SECTION 4.9. SETOFF...............................................31
SECTION 4.10.USE OF PROCEEDS......................................31
SECTION 4.11.CURRENCY INDEMNIFICATION.............................31
<PAGE>
ARTICLE V
CONDITIONS TO BORROWING...........................................32
SECTION 5.1. INITIAL BORROWING OF THE COMPANY.....................32
SECTION (1) RESOLUTIONS, ETC.....................................32
SECTION (2) DELIVERY OF NOTES....................................32
SECTION (3) PAYMENT OF OUTSTANDING INDEBTEDNESS, ETC.............33
SECTION (4) OPINIONS OF COUNSEL..................................33
SECTION (5) EXPENSES, ETC........................................33
SECTION 5.2. INITIAL BORROWING OF A DESIGNATED SUBSIDIARY.........33
SECTION (1) DESIGNATION LETTER...................................33
SECTION (2) NOTES................................................33
SECTION (3) AUTHORIZATIONS AND APPROVALS.........................33
SECTION (4) GUARANTY.............................................33
SECTION (5) RESOLUTIONS..........................................34
SECTION (6) INCUMBENCY...........................................34
SECTION 5.3. ALL BORROWINGS.......................................34
SECTION (1) COMPLIANCE WITH WARRANTIES, NO DEFAULT, ETC..........34
SECTION (2) BORROWING REQUEST....................................35
SECTION (3) INSURANCE............................................35
SECTION (4) FORM U-1.............................................35
SECTION (5) SATISFACTORY LEGAL FORM..............................35
ARTICLE VI
REPRESENTATIONS AND WARRANTIES....................................36
SECTION 6.1. ORGANIZATION, ETC....................................36
SECTION 6.2. DUE AUTHORIZATION, NON-CONTRAVENTION, ETC............36
SECTION 6.3. GOVERNMENT APPROVAL, REGULATION, ETC.................36
SECTION 6.4. VALIDITY, ETC........................................37
SECTION 6.5. FINANCIAL INFORMATION................................37
SECTION 6.6. NO MATERIAL ADVERSE CHANGE...........................37
SECTION 6.7. LITIGATION, LABOR CONTROVERSIES, ETC.................37
SECTION 6.8. SUBSIDIARIES.........................................37
SECTION 6.9. PARTNERSHIPS; JOINT VENTURES.........................38
SECTION 6.10.OWNERSHIP OF PROPERTIES..............................38
SECTION 6.11.TAXES................................................38
SECTION 6.12.INSURANCE............................................38
SECTION 6.13.PENSION AND WELFARE PLANS............................38
SECTION 6.14.ENVIRONMENTAL WARRANTIES.............................38
SECTION 6.15.REGULATIONS G, U AND X...............................40
SECTION 6.16.ACCURACY OF INFORMATION..............................40
ARTICLE VII
COVENANTS.........................................................41
SECTION 7.1. AFFIRMATIVE COVENANTS................................41
SECTION (1) FINANCIAL INFORMATION, REPORTS, NOTICES, ETC.........41
SECTION (2) COMPLIANCE WITH LAWS, ETC............................43
SECTION (3) INSURANCE............................................43
SECTION (4) ENVIRONMENTAL COVENANT...............................43
SECTION 7.2. NEGATIVE COVENANTS...................................44
SECTION (1) LIENS................................................44
SECTION (2) FINANCIAL CONDITION..................................45
SECTION (3) LONG-TERM LEASES.....................................46
SECTION (4) INVESTMENTS..........................................46
SECTION (5) CONSOLIDATION, MERGER, ETC...........................47
SECTION (6) ASSET DISPOSITIONS, ETC..............................47
SECTION (7) TRANSACTIONS WITH AFFILIATES.........................49
SECTION (8) NEGATIVE PLEDGES, RESTRICTIVE AGREEMENTS, ETC........49
SECTION (9) BUSINESS ACTIVITIES..................................49
<PAGE>
ARTICLE VIII
EVENTS OF DEFAULT.................................................50
SECTION 8.1. LISTING OF EVENTS OF DEFAULT.........................50
SECTION (1) NON-PAYMENT OF OBLIGATIONS...........................50
SECTION (2) BREACH OF WARRANTY...................................50
SECTION (3) NON-PERFORMANCE OF CERTAIN COVENANTS AND OBLIGATIONS.50
SECTION (4) NON-PERFORMANCE OF OTHER COVENANTS AND OBLIGATIONS...50
SECTION (5) DEFAULT ON OTHER INDEBTEDNESS........................50
SECTION (6) JUDGMENTS............................................51
SECTION (7) PENSION PLANS........................................51
SECTION (8) CONTROL OF THE COMPANY...............................51
SECTION (9) BANKRUPTCY, INSOLVENCY, ETC..........................51
SECTION 8.2. ACTION IF BANKRUPTCY.................................52
SECTION 8.3. ACTION IF OTHER EVENT OF DEFAULT.....................52
ARTICLE IX
THE AGENT.........................................................52
SECTION 9.1. ACTIONS..............................................52
SECTION 9.2. FUNDING RELIANCE, ETC................................53
SECTION 9.3. EXCULPATION..........................................53
SECTION 9.4. SUCCESSOR............................................54
SECTION 9.5. LOANS BY LENDERS.....................................54
SECTION 9.6. CREDIT DECISIONS.....................................54
SECTION 9.7. COPIES, ETC..........................................55
ARTICLE X
MISCELLANEOUS PROVISIONS..........................................55
SECTION 10.1. WAIVERS, AMENDMENTS, ETC............................55
SECTION 10.2. NOTICES.............................................56
SECTION 10.3. PAYMENT OF COSTS AND EXPENSES.......................56
SECTION 10.4. INDEMNIFICATION.....................................56
SECTION 10.5. SURVIVAL............................................57
SECTION 10.6. SEVERABILITY........................................57
SECTION 10.7. HEADINGS............................................57
SECTION 10.8. EXECUTION IN COUNTERPARTS, EFFECTIVENESS, ETC.......58
SECTION 10.9. GOVERNING LAW; ENTIRE AGREEMENT.....................58
SECTION 10.10.SUCCESSORS AND ASSIGNS..............................58
SECTION 10.11.SALE AND TRANSFER OF LOANS AND NOTE;
PARTICIPATIONS IN LOANS AND NOTE....................58
SECTION (1) ASSIGNMENTS.........................................58
SECTION (2) PARTICIPATIONS......................................60
SECTION 10.12.EXEMPT CHARACTER OF TRANSACTION.....................60
SECTION 10.13.OTHER TRANSACTIONS..................................61
SECTION 10.14.FORUM SELECTION AND CONSENT TO JURISDICTION.........61
SECTION 10.15.WAIVER OF JURY TRIAL................................61
SECTION 2.12. INDEMNIFICATION....................................C-7
- --------
*Item numbers are keyed to refer to Sections where the
item is principally referred to and will have to be
revised as such Sections are renumbered.
EXHIBIT 11
<TABLE>
ANDREW CORPORATION AND SUBSIDIARIES
Computation of Earnings Per Share
<CAPTION>
Year Ended September 30
1997 1996 1995
---------- ---------- ----------
(Amounts in thousands,
except per share data)
<S> <C> <C> <C>
PRIMARY EARNINGS PER SHARE
Average shares outstanding 90,532 90,263 89,180
Net effect of dilutive stock options--
based on the treasury stock method
using average market price 1,075 1,231 1,257
---------- ---------- ----------
TOTAL 91,607 91,494 90,437
========== ========== ==========
Income from continuing operations $107,758 $ 93,802 $ 71,854
========== ========== ==========
Income from continuing operations
per share $ 1.18 $ 1.03 $ .79
========== ========== ==========
Net income $ 88,342 $ 90,397 $ 69,955
========== ========== ==========
Net income per share $ .96 $ .99 $ .77
========== ========== ==========
FULLY DILUTED EARNINGS PER SHARE
Average shares outstanding 90,532 90,263 89,180
Net effect of dilutive stock options--
based on the treasury stock method
using the greater of year-end or
average market price 1,075 1,519 1,548
---------- ---------- ----------
TOTAL 91,607 91,782 90,728
========== ========== ==========
Income from continuing operations $107,758 $ 93,802 $ 71,854
========== ========== ==========
Income from continuing operations
per share $ 1.18 $ 1.02 $ .79
========== ========== ==========
Net income $ 88,342 $ 90,397 $ 69,955
========== ========== ==========
Net income per share $ .96 $ .98 $ .77
========== ========== ==========
<FN>
Note: The fully diluted earnings per share calculation is submitted in
accordance with the Securities Exchange Act of l934 Release No. 9038
although not required by footnote 2 to paragraph l4 of APB Opinion No. l5
because it results in dilution of less than 3%.
</FN>
</TABLE>
OPERATIONS REVIEW
Andrew Corporation set record highs for orders, sales, income from
continuing operations and net income from continuing operations per share for
the fiscal year ended September 30, 1997. Wireless infrastructure and broadcast
markets led the sales growth for the year. Domestic personal communication
services (PCS) sales increased 33% over last year on a strong first half of
1997. International cellular sales grew consistently throughout the year with
sales in each geographic region growing over 30% compared with last year.
Broadcast sales were up over 25% on strength in both domestic and international
entertainment networks.
In July 1997, the company decided to exit certain businesses whose
performance had not met growth expectations. The company discontinued the
network products business and phased out of its fiber optic sensors and global
messaging development activities. It also significantly restructured its
European wireless products business. These actions resulted in total after-tax
charges to net income of $22.8 million or $.25 per share. While these steps
negatively impacted 1997 results, they enable an increased focus on the growing
wireless markets and further enhance long term growth opportunities.
SALES increased $103.5 million or 13.5% over 1996 to $869.5 million in
fiscal 1997. International sales grew 13.2% to $414.7 million in fiscal 1997
compared with $366.3 million in 1996 and $282.6 million in 1995. International
sales represented 48% of total revenue in both fiscal 1997 and 1996 and 45% in
fiscal 1995.
In 1997, coaxial cable sales increased 12.5% and other products and
services increased 37.3%, while terrestrial microwave antennas and wireless
telephone accessories were flat compared with last year. In 1996, coaxial
cable, terrestrial microwave antennas and wireless telephone accessories drove
the increase in sales over 1995.
COST OF PRODUCTS SOLD, as a percentage of sales revenue, was 59.1% in
1997 compared with 58.2% and 57.7% in 1996 and 1995, respectively. The trend,
which began in 1996, continued in 1997 as competitive price pressure and
changes in product mix were partially offset by productivity gains, volume
efficiencies and manufacturing improvements.
13
<PAGE>
RESEARCH AND DEVELOPMENT EXPENSES increased $11.5 million or 38.7% to
$41.1 million in 1997. As a percentage of sales revenue, research and
development expenses were 4.7%, 3.9% and 3.4% in 1997, 1996 and 1995,
respectively. The growth in research and development expenses is expected to
slow due to the phase out of the fiber optic sensors and global messaging
development activities. The company will focus its research and development
efforts in its core products and markets.
SALES AND ADMINISTRATIVE EXPENSES increased 4.4% to $145.6 million in
1997 from $139.6 million in 1996. During 1997, sales and marketing activities
expanded, especially in the Europe and Asia-Pacific regions, while
administrative expenses increased due to investments in information and
business systems, partially offset by lower profit sharing and bonus expense.
As a percentage of sales revenue, selling and administrative expenses decreased
to 16.8% in 1997 compared with 18.2% and 20.2% in 1996 and 1995, respectively.
OTHER INCOME AND EXPENSE in 1997 resulted in income of $2.0 million,
compared with an expense of $4.7 million and $4.4 million in 1996 and 1995,
respectively. In 1997, net interest expense decreased to $.9 million, from
$3.4 million in 1996 and $3.2 million in 1995. The decrease of $2.5 million
in 1997 was due to higher investment levels resulting from increased cash from
operations. Net other income was $2.9 million in 1997 compared with net other
expense of $1.4 million in 1996 and $1.2 million in 1995. In 1997, net other
income consisted primarily of foreign exchange gains, compared with 1996 when
foreign exchange gains were offset by a one-time charge of $1.5 million related
to the acquisition of The Antenna Company.
INCOME FROM CONTINUING OPERATIONS increased 14.9% to $107.8 million in
1997 compared with the $93.8 million reported in 1996 and $71.9 million in
1995. Excluding the effects of the restructuring charge, income from continuing
operations was $111.1 million in 1997, an increase of $17.3 million or 18.4%
over 1996. Continued focus on cost containment activities and increased
productivity contributed to the increase.
14
<PAGE>
During 1997, the company's effective income tax rate for continuing
operations decreased to 35% from 36% in 1996 and 1995.
NET INCOME decreased 2.3% to $88.3 million in 1997 compared with $90.4
million in 1996 and $69.9 million in 1995. Net income per share decreased 2.0%
to $.96 in 1997 compared with $.98 in 1996 and $.77 in 1995. In 1997, net
income included a $16.1 million charge (net of applicable taxes) for
discontinuing the network products business and losses from operations of the
network products business of $3.3 million (net of applicable taxes). In 1996,
losses from operations of the network products business totaled $3.4 million
(net of applicable taxes). Also, 1997 net income included a $3.3 million charge
(net of applicable taxes) for phasing out the company's fiber optic sensor and
global messaging development activities, as well as the restructuring of the
company's European wireless products business. Net income per share for 1997,
excluding the effects of the charges for discontinued operations and
restructuring, was $1.21, an increase of 18.6% over 1996.
LIQUIDITY: Net cash from operations totaled $151.7 million in 1997,
$66.8 million in 1996 and $55.8 million in 1995. Higher income from continuing
operations, increased collection of accounts receivable and a decreased
investment in inventories contributed to the growth in cash from operations in
1997. Days sales outstanding decreased from 72 days in 1996 and 68 days in 1995
to 67 days in 1997. The increase in net cash from operations in 1996 was due
primarily to higher earnings and increased liabilities, which were partially
offset by higher accounts receivable balances and an increased investment in
inventories.
Net cash used in investing activities totaled $61.4 million in 1997
compared with $78.7 million in 1996 and $55.4 million in 1995. The 1997
decrease is due primarily to the company's purchase, in December 1995, of Mapra
Industria e Comercio Ltda. and Gerbo Telecommunicacoes e Servicos Ltda. for
$14.6 million, net of cash received, and the company's June 1996 purchase of
the SATCOM group of companies for $3.2 million. Capital expenditures decreased
15
<PAGE>
$3.3 million or 6.3% to $49.1 million from $52.5 million in 1996. The company
expects to spend approximately $9.5 million and approximately $7.5 million on
its domestic and Chinese facilities, respectively, in 1998. Capital spending
increased $4.4 million or 9.2% in 1996 compared with 1995. Investments in and
advances to the company's affiliates were $13.1 million in 1997 compared with
$9.0 million in 1996. The growth in 1997 is due primarily to initial
investments in new ventures, as well as loans to existing joint ventures in
Russia and the Ukraine.
Net cash used for financing activities totaled $25.5 million in 1997
and $2.0 million in 1996 compared with net cash from financing activities of
$4.6 million in 1995. During 1997, the company initiated a stock buy-back
program with an authorized limit of 5,000,000 shares. As of September 30, 1997,
the company had repurchased 1,545,000 shares at a total cost of $41.6 million.
Shares acquired through the stock buy-back program will be held to meet
potential employee compensation needs or for use in future acquisitions.
Although Andrew has never paid cash dividends, the Board of Directors
periodically reviews this practice and to date has elected to retain earnings
in the business to finance investments and operations.
In 1997, the company acquired $10.7 million in short term local
currency debt to help finance the facility expansion in Brazil. The company
also maintains a $75 million revolving line of credit agreement with Bank of
America, Illinois, under which there was $3.6 million outstanding at September
30, 1997. During 1996, the company liquidated The Antenna Company's short term
debt of $5.0 million. As of September 30, 1997, the company had $36.4 million
of senior notes outstanding of which $5.1 million was due within one year.
RISK FACTORS: This annual report may contain forward-looking statements
that involve risks and uncertainties. Factors that could cause actual results
to differ materially from forecasts or expectations include, but are not
limited to, impact of competitive products and pricing; regional economic and
political conditions that may impact customers' ability to fund purchases of
our products and services; availability of qualified technical management,
principally in emerging markets; and end user demand for wireless communication
products. In addition, the company may, from time to time, list risk factors in
the company's reports filed with the SEC.
16
<PAGE>
<TABLE>
CONSOLIDATED STATEMENTS
OF INCOME
<CAPTION>
Year Ended September 30
Amounts in thousands, except per share amounts 1997 1996 1995
- ------------------------------------------------------------------------------------
<S> <C> <C> <C>
SALES $869,475 $766,007 $624,743
Cost of products sold 513,809 445,521 360,730
- ------------------------------------------------------------------------------------
GROSS PROFIT 355,666 320,486 264,013
OPERATING EXPENSES
Research and development 41,076 29,624 21,041
Sales and administrative 145,647 139,558 126,169
Restructuring 5,150 -- --
- ------------------------------------------------------------------------------------
191,873 169,182 147,210
- ------------------------------------------------------------------------------------
OPERATING INCOME 163,793 151,304 116,803
OTHER
Interest expense 5,003 5,183 5,643
Interest income (4,124) (1,831) (2,487)
Other (income) expense (2,868) 1,386 1,206
- ------------------------------------------------------------------------------------
(1,989) 4,738 4,362
- ------------------------------------------------------------------------------------
INCOME FROM CONTINUING OPERATIONS
BEFORE INCOME TAXES 165,782 146,566 112,441
Income taxes 58,024 52,764 40,587
- ------------------------------------------------------------------------------------
INCOME FROM CONTINUING OPERATIONS 107,758 93,802 71,854
DISCONTINUED OPERATIONS
Loss from operations of Network Products
Business, net of applicable tax benefit 3,330 3,405 1,899
Loss on disposal of Network Products Business
including provision of $1,040 for operating
losses during phase-out period, net of
applicable tax benefits 16,086 -- --
- ------------------------------------------------------------------------------------
19,416 3,405 1,899
- ------------------------------------------------------------------------------------
NET INCOME $ 88,342 $ 90,397 $ 69,955
====================================================================================
INCOME FROM CONTINUING OPERATIONS PER AVERAGE
SHARE OF COMMON STOCK OUTSTANDING $ 1.18 $ 1.02 $ 0.79
NET INCOME PER AVERAGE SHARE OF
COMMON STOCK OUTSTANDING $ 0.96 $ 0.98 $ 0.77
====================================================================================
AVERAGE SHARES OUTSTANDING 91,607 91,782 90,728
====================================================================================
<FN>
See Notes to Consolidated Financial Statements.
</FN>
</TABLE>
17
<PAGE>
<TABLE>
CONSOLIDATED
BALANCE SHEETS
<CAPTION>
September 30
Dollars in thousands 1997 1996
- --------------------------------------------------------------------------------
<S> <C> <C>
ASSETS
CURRENT ASSETS
Cash and cash equivalents $ 93,823 $ 31,295
Accounts receivable, less allowances
(1997 - $2,754; 1996 - $3,648) 185,752 197,589
Inventories
Finished products 57,458 56,947
Materials and work in process 109,432 109,662
- --------------------------------------------------------------------------------
166,890 166,609
Assets related to discontinued operations, less allowances 4,811 --
Miscellaneous current assets 8,538 6,491
- --------------------------------------------------------------------------------
TOTAL CURRENT ASSETS 459,814 401,984
OTHER ASSETS
Costs in excess of net assets of businesses acquired,
less accumulated amortization
(1997 - $8,742; 1996 - $19,732) 24,726 42,667
Investments in and advances to affiliates 55,628 42,510
Investments and other assets 13,396 11,368
PROPERTY, PLANT AND EQUIPMENT
Land and land improvements 11,646 11,103
Buildings 72,884 68,248
Equipment 275,015 254,737
Allowances for depreciation and amortization (221,955) (201,388)
- --------------------------------------------------------------------------------
137,590 132,700
- --------------------------------------------------------------------------------
TOTAL ASSETS $691,154 $631,229
================================================================================
<FN>
See Notes to Consolidated Financial Statements.
</FN>
</TABLE>
18
<PAGE>
<TABLE>
CONSOLIDATED
BALANCE SHEETS
<CAPTION>
September 30
Dollars in thousands 1997 1996
- --------------------------------------------------------------------------------
<S> <C> <C>
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES
Notes payable $ 14,319 $ --
Accounts payable 37,237 38,887
Accrued expenses and other liabilities 18,978 26,170
Compensation and related expenses 29,312 27,006
Income taxes 16,430 20,367
Restructuring reserve 2,036 --
Liabilities related to discontinued operations 3,637 --
Current portion of long term debt 5,144 4,952
- --------------------------------------------------------------------------------
TOTAL CURRENT LIABILITIES 127,093 117,382
DEFERRED LIABILITIES 10,239 7,919
LONG TERM DEBT, less current portion 35,693 40,423
MINORITY INTEREST 9,006 9,291
STOCKHOLDERS' EQUITY
Common stock (par value, $.01 a share:
400,000,000 shares authorized;
102,718,210 shares issued, including treasury) 1,027 685
Additional paid-in capital 51,810 43,257
Foreign currency translation (4,532) 349
Retained earnings 547,256 458,914
Treasury stock, at cost (13,060,876 shares in 1997;
12,070,844 shares in 1996) (86,438) (46,991)
- --------------------------------------------------------------------------------
509,123 456,214
- --------------------------------------------------------------------------------
TOTAL LIABILITIES AND EQUITY $691,154 $631,229
================================================================================
<FN>
See Notes to Consolidated Financial Statements.
</FN>
</TABLE>
19
<PAGE>
<TABLE>
CONSOLIDATED STATEMENTS
OF CASH FLOWS
<CAPTION>
Year Ended September 30
Dollars in thousands 1997 1996 1995
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C>
CASH FLOWS FROM OPERATIONS
Net Income $ 88,342 $ 90,397 $ 69,955
ADJUSTMENTS TO NET INCOME
Restructuring costs 4,439 -- --
Discontinued operations 22,771 -- --
Depreciation and amortization 39,274 34,334 25,803
Decrease (increase) in accounts receivable 4,074 (45,681) (15,334)
Increase in inventories (577) (34,705) (32,078)
(Increase) decrease in miscellaneous
current and other assets (3,331) (1,663) 5,488
(Increase) decrease in receivables from affiliates (161) 130 (1,171)
(Decrease) increase in accounts payable and other liabilities (2,471) 23,321 1,638
Other (680) 663 1,515
- -------------------------------------------------------------------------------------------
NET CASH FROM OPERATIONS 151,680 66,796 55,816
INVESTING ACTIVITIES
Capital expenditures (49,144) (52,475) (48,076)
Acquisition of businesses, net of cash acquired -- (17,802) --
Investments in and advances to affiliates (13,097) (9,030) (7,823)
Proceeds from sale of property, plant and equipment 814 624 532
- -------------------------------------------------------------------------------------------
NET CASH USED FOR INVESTING ACTIVITIES (61,427) (78,683) (55,367)
FINANCING ACTIVITIES
Proceeds from issuance of long term debt -- -- 3,842
Payments on long term debt (4,524) (5,229) (5,583)
Short term borrowings (payments) - net 14,356 (2,455) 750
Stock purchase and option plans 6,297 5,712 5,561
Purchases of treasury stock (41,628) -- --
- -------------------------------------------------------------------------------------------
NET CASH (USED FOR) FROM FINANCING ACTIVITIES (25,499) (1,972) 4,570
Effect of exchange rate changes on cash (2,226) (910) 331
- -------------------------------------------------------------------------------------------
INCREASE (DECREASE) FOR THE YEAR 62,528 (14,769) 5,350
Cash and equivalents at beginning of year 31,295 46,064 40,714
- -------------------------------------------------------------------------------------------
CASH AND EQUIVALENTS END OF YEAR $ 93,823 $ 31,295 $ 46,064
===========================================================================================
<FN>
See Notes to Consolidated Financial Statements.
</FN>
</TABLE>
20
<PAGE>
<TABLE>
CONSOLIDATED STATEMENTS
OF STOCKHOLDERS' EQUITY
<CAPTION>
Year Ended September 30
Dollars in thousands 1997 1996 1995
- -----------------------------------------------------------------
<S> <C> <C> <C>
COMMON STOCK ISSUED
Balance at beginning of year $ 685 $ 457 $ 304
Three-for-two stock split 342 228 153
- -----------------------------------------------------------------
BALANCE AT END OF YEAR $ 1,027 $ 685 $ 457
=================================================================
ADDITIONAL PAID-IN CAPITAL
Balance at beginning of year $ 43,257 $ 35,588 $ 22,356
Three-for-two stock split (342) (228) (153)
Stock purchase and option plans 8,895 7,897 13,385
- -----------------------------------------------------------------
BALANCE AT END OF YEAR $ 51,810 $ 43,257 $ 35,588
=================================================================
RETAINED EARNINGS
Balance at beginning of year $458,914 $368,517 $298,562
Net Income 88,342 90,397 69,955
- -----------------------------------------------------------------
BALANCE AT END OF YEAR $547,256 $458,914 $368,517
=================================================================
TREASURY STOCK
Balance at beginning of year $(46,991) $(48,448) $(43,419)
Repurchase of shares (41,628) -- --
Stock purchase and option plans 2,181 1,457 (5,029)
- -----------------------------------------------------------------
BALANCE AT END OF YEAR $(86,438) $(46,991) $(48,448)
=================================================================
<FN>
See Notes to Consolidated Financial Statements.
</FN>
</TABLE>
21
<PAGE>
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
- -------------------------------------------------------------------------------
PRINCIPLES OF CONSOLIDATION
The consolidated financial statements include the accounts of the company and
its majority-owned subsidiaries. All significant intercompany accounts and
transactions have been eliminated.
CASH EQUIVALENTS
The company considers all highly liquid investments purchased with maturities
of three months or less to be cash equivalents. The carrying amount of cash
equivalents approximates fair value due to the relative short term maturity of
these investments.
INVENTORIES
Inventories are stated at the lower of cost or market. Inventories stated under
the last-in, first-out (LIFO) method represent 44% of total inventories in 1997
and 41% of total inventories in 1996. The remaining inventories are valued on
the first-in, first-out (FIFO) method and the weighted average method. If the
FIFO method, which approximates current replacement cost, had been used for all
inventories, the total amount of inventories would have increased by $1,395,000
and $8,435,000 at September 30, 1997 and 1996, respectively.
DEPRECIATION AND AMORTIZATION
The company provides for depreciation and amortization of property, plant and
equipment, all of which are recorded at cost, principally using accelerated
methods based on estimated useful lives of the assets for both financial
reporting and tax purposes. Costs in excess of net assets of businesses
acquired are amortized on the straight-line basis over periods ranging from 10
to 40 years.
INVESTMENTS IN AFFILIATES
Investments in affiliates are accounted for using the equity method, under
which the company's share of earnings or losses of these affiliates is
reflected in income as earned and dividends are credited against the investment
in affiliates when received.
REVENUE RECOGNITION
Revenue is recognized from sales, other than long term contracts, when a
product is shipped or a service is performed. Sales under long term contracts
generally are recognized under the percentage of completion method and include
a portion of the earnings expected to be realized on the contract in the ratio
that costs incurred bear to estimated total costs. Contracts in progress are
reviewed monthly, and sales and earnings are adjusted in current accounting
periods based on revisions in contract value and estimated costs at completion.
Estimated losses on contracts are provided when identified.
FOREIGN CURRENCY TRANSLATION
The functional currency for the company's foreign operations is predominantly
the applicable local currency. Accounts of foreign operations are translated
into U.S. dollars using year-end exchange rates for assets and liabilities and
average monthly exchange rates for revenue and expense accounts. Adjustments
resulting from translation are included as a separate component of
stockholders' equity. Gains and losses resulting from foreign currency
transactions are included in determining net income.
INCOME TAXES
Deferred income taxes reflect the impact of temporary differences between the
amounts of assets and liabilities recognized for financial reporting purposes
and such amounts recognized for tax purposes.
22
<PAGE>
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
INCOME FROM CONTINUING OPERATIONS PER SHARE AND NET INCOME PER SHARE
Income from continuing operations per share and net income per share are based
on the weighted average number of common shares outstanding during each year
after giving effect to stock options considered to be dilutive common stock
equivalents. Fully diluted per share amounts are not materially different from
primary per share amounts.
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 amounts reported in the financial statements and accompanying
notes. Actual results could differ from those estimates.
ACCOUNTING CHANGES
During the first quarter of fiscal year 1995, the company adopted Statement of
Financial Accounting Standard (SFAS) No. 115, "Accounting for Certain
Investments in Debt and Equity Securities." In the first quarter of fiscal year
1997, the company adopted SFAS No. 121, "Accounting for the Impairment of Long-
Lived Assets and for Long-Lived Assets to be Disposed of," which requires long-
lived assets to be reviewed for impairment when events or circumstances
indicate that an impairment exists. The adoption of these statements did not
have a material effect on the company's financial statements.
In February 1997, the Financial Accounting Standard Board (FASB) issued SFAS
No. 128, "Earnings per Share," which requires the company to change the method
currently used to calculate earnings per share and to restate all prior
periods. In February 1997, the FASB also issued SFAS No. 129, "Disclosure of
Information about Capital Structure." The company is required to adopt both
these statements in the first quarter of fiscal year 1998. Adoption of these
statements is not expected to have a material effect on the company's financial
statements.
BUSINESS ACQUISITIONS
- -------------------------------------------------------------------------------
In December 1995, the company purchased a 51% interest in Mapra Industria e
Comercio, Ltda. and Gerbo Telecommunicacoes e Servicos, Ltda., located in
Brazil, for $14.6 million, net of cash received. The acquisition was accounted
for as a purchase and, accordingly, the operating results of Mapra and Gerbo
have been included in the consolidated operating results since the date of
acquisition. Mapra and Gerbo manufacture, distribute and sell antennas,
waveguides and towers and also provide installation services.
In June 1996, the company purchased an 80% interest in SATCOM Group of
Companies, located in South Africa, for $3.2 million, net of cash received. The
acquisition of SATCOM was accounted for as a purchase and, accordingly, the
operating results of SATCOM have been included in the consolidated operating
results since the date of acquisition.
If the acquisitions of Mapra Industria e Comercio, Ltda., Gerbo
Telecommunicacoes e Servicos, Ltda. and SATCOM Group of Companies had taken
place at the beginning of fiscal year 1996, Andrew Corporation's consolidated
sales and net income would not have been materially affected.
In March 1996, Andrew Corporation completed its acquisition of The Antenna
Company, a manufacturer and distributor of wireless telephone antennas and
accessories for mobile applications. The transaction has been accounted for as
a pooling of interests and, accordingly, the accompanying financial statements
have been restated to include the accounts and operations of The Antenna
Company for all periods prior to the merger. Andrew Corporation exchanged
2,312,346 shares of its common stock for all the outstanding stock of the
privately held The Antenna Company. In addition, $1.5 million in acquisition
costs were incurred to complete the merger.
23
<PAGE>
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
DISCONTINUED OPERATIONS
- -------------------------------------------------------------------------------
On July 14, 1997, the company adopted a plan to discontinue the operations of
its network products business. The company expects to complete the disposition
by the end of the 1997 calendar year.
The network products business operating loss of $3.3 million, $3.4 million and
$1.9 million (net of applicable taxes of $1.8 million, $1.9 million and $1.1
million) for the fiscal years ended September 30, 1997, 1996 and 1995,
respectively, are shown separately under discontinued operations in the
accompanying income statement. The estimated loss on disposal of the
discontinued operations of $16.1 million (net of applicable taxes of $6.7
million) represents the estimated loss on the disposal of the network products
assets and a provision of $1.0 million (net of applicable taxes of $.6 million)
for expected operating losses during the phase-out period.
Net sales of the network products business were $20.8 million, $27.6 million
and $39.2 million for the fiscal years ended September 30, 1997, 1996 and 1995,
respectively. The assets of the network products business to be disposed of
consist primarily of accounts receivable, inventories and equipment.
INVESTMENTS IN AFFILIATES
- -------------------------------------------------------------------------------
The company's investments in affiliates represent 40 to 50 percent interests in
several start-up network telecommunications joint ventures located in Russia
and Ukraine. The combined operating results of the ventures and the company's
share thereof were not material to the company's 1997, 1996 and 1995 operating
results.
UNBILLED RECEIVABLES
- -------------------------------------------------------------------------------
At September 30, 1997, unbilled receivables of $8,546,000 are included in
accounts receivable, compared with $7,634,000 at September 30, 1996. These
amounts will be billed in accordance with contract terms and delivery schedules
and are generally expected to be collected within one year.
PROFIT SHARING PLANS
- -------------------------------------------------------------------------------
Most employees of Andrew Corporation and its subsidiaries participate in
various retirement plans, principally defined contribution profit sharing
plans. The amounts charged to earnings for these plans in 1997, 1996 and 1995
were $12,933,000, $13,678,000, and $11,696,000, respectively.
BORROWINGS
- -------------------------------------------------------------------------------
Lines of Credit
The company maintains a $75 million revolving line of credit agreement with
Bank of America, Illinois. The maximum outstanding during 1997 under the line
of credit was $3.6 million with a weighted average interest rate of 3.62%. The
outstanding balance at September 30, 1997 was $3.6 million.
The company also maintains a $15 million line of credit agreement with ABN-AMRO
for its Brazilian operations. The maximum outstanding during 1997 under the
line of credit was $10.7 million with a weighted average interest rate of
22.28%. The outstanding line of credit balance at September 30, 1997 was $10.7
million.
24
<PAGE>
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
LONG TERM DEBT
Long term debt at September 30 consisted of the following:
<TABLE>
<CAPTION>
Dollars in thousands 1997 1996
- ------------------------------------------------------------------------
<S> <C> <C>
9.52% senior notes payable to insurance companies
in annual installments through 2005 $36,364 $40,910
Variable rate Industrial Development Revenue Bond
with Coweta County, Georgia 3,800 3,800
Other 673 665
Less: Current Portion 5,144 4,952
- ------------------------------------------------------------------------
Total Long Term Debt $35,693 $40,423
========================================================================
</TABLE>
Under the terms of the loan agreements, the company has agreed to maintain
certain levels of working capital and net worth. At September 30, 1997, all
these requirements had been met.
The principal amounts of long term debt maturing after September 30, 1997 are:
<TABLE>
<S> <C> <C> <C> <C> <C> <C>
Dollars in thousands 1998 1999 2000 2001 2002 Thereafter
- ------------------------------------------------------------------------
$5,144 $4,619 $4,545 $4,545 $4,545 $17,439
========================================================================
</TABLE>
Cash payments for interest on all borrowings were $4,246,000, $4,752,000 and
$5,339,000 in 1997, 1996 and 1995, respectively.
The carrying amount of long term debt as of September 30, 1997 approximates
fair value. The fair value was determined by discounting the future cash
outflows based upon the current market rates for instruments with a similar
risk and term to maturity.
RESTRUCTURING
- -------------------------------------------------------------------------------
During June 1997, the company initiated a plan to restructure its European
wireless products business and phase out its fiber optic sensors and global
messaging development activities. In connection with the restructuring plan,
approximately 300 employees will be terminated at an estimated cost of $1.6
million. In addition to termination costs, the restructuring charge includes an
estimated loss on disposal of equipment of $1.7 million. The remaining cash
costs at September 30, 1997 will be paid during fiscal 1998.
25
<PAGE>
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
INCOME TAXES
- -------------------------------------------------------------------------------
The composition of the provision for income taxes follows:
<TABLE>
<CAPTION>
Year Ended September 30
Dollars in thousands 1997 1996 1995
- --------------------------------------------------------------------
<S> <C> <C> <C>
Currently Payable:
Federal $ 29,636 $ 35,013 $ 22,345
Non-United States 19,852 15,702 12,937
State 5,281 4,779 3,008
- --------------------------------------------------------------------
54,769 55,494 38,290
Deferred (Credit):
Federal and State 3,280 (2,608) 2,199
Non-United States (25) (122) 98
- --------------------------------------------------------------------
3,255 (2,730) 2,297
- --------------------------------------------------------------------
$ 58,024 $ 52,764 $ 40,587
====================================================================
Income Taxes Paid $ 44,641 $ 37,041 $ 27,387
====================================================================
Components of Income from Continuing
Operations Before Income Taxes:
United States $ 99,782 $ 82,078 $ 70,955
Non-United States 66,000 64,488 41,486
- --------------------------------------------------------------------
$165,782 $146,566 $112,441
====================================================================
</TABLE>
The company's effective income tax rate varied from the statutory United States
federal income tax rate because of the following:
<TABLE>
<CAPTION>
1997 1996 1995
- -------------------------------------------------------------------
<S> <C> <C> <C>
Statutory United States federal tax rate 35.0% 35.0% 35.0%
Foreign Sales Corporation (FSC) (2.8) (2.7) (2.3)
State income taxes, net of federal tax effect 2.2 2.1 2.2
Other items 0.6 1.6 1.2
- -------------------------------------------------------------------
Effective Tax Rate 35.0% 36.0% 36.1%
===================================================================
</TABLE>
26
<PAGE>
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
The tax effects of temporary differences have given rise to gross deferred tax
assets of $11,333,000, primarily accrued expenses and inventory, and gross
deferred tax liabilities of $10,274,000, primarily depreciation, as of
September 30, 1997. The company has not recorded a valuation allowance for
deferred tax assets because the existing net deductible temporary differences
will reverse during periods in which the company expects to generate taxable
income.
No provision has been made for income taxes of approximately $15,190,000 as of
September 30, 1997, which would be payable should undistributed net income of
subsidiaries located outside the United States be distributed as dividends. The
company plans to continue its non-United States operations, and anticipates the
ability to use tax planning opportunities if any dividends are declared or paid
from these operations.
STOCKHOLDERS' EQUITY
- -------------------------------------------------------------------------------
COMMON STOCK
The company has authorized 400,000,000 shares of common stock with a par value
of $.01 per share. As of September 30, 1997, 89,657,334 shares of common stock
were outstanding. Each outstanding common share has attached to it a one Share
Purchase Right that, until exercisable, cannot be transferred apart from the
company's Common Stock. The Rights will only become exercisable if a person or
group acquires 15% or more of the company's Common Stock or announces an offer
to acquire 15% or more of the company's Common Stock. In the event the Rights
become exercisable, each Right may entitle the holder to purchase Common Stock
of either the surviving or acquired company at one-half its market price.
During the third quarter of fiscal year 1997, the company implemented a stock
buy-back program, which authorized the company to repurchase up to five million
shares of its common stock. As of September 30, 1997, the company had
repurchased 1,545,000 common shares for a total cost of $41,600,000. The common
shares repurchased under this program may be used to meet employee compensation
needs or used in future acquisitions.
On February 11, 1997, the company's Board of Directors approved a three-for-two
stock split to stockholders of record on February 25, 1997, payable March 11,
1997. A three-for-two stock split was also effected in March 1996 and in March
1995. All prior year amounts have been restated to reflect the stock splits.
Common Stock issued and outstanding and held in treasury is summarized in the
tables below:
<TABLE>
<CAPTION>
Year Ended September 30
1997 1996 1995
- ------------------------------------------------------------------------------
<S> <C> <C> <C>
SHARES OF COMMON STOCK - ISSUED
Balance at beginning of year 68,479,398 45,653,823 30,435,882
Three-for-two stock split 34,238,812 22,825,575 15,217,941
- ------------------------------------------------------------------------------
Balance at End of Year 102,718,210 68,479,398 45,653,823
==============================================================================
SHARES OF COMMON STOCK - HELD IN TREASURY
Balance at beginning of year 8,047,229 5,620,970 4,206,023
Three-for-two stock split 4,023,615 2,809,352 2,103,012
Stock repurchase 1,545,000 -- --
Stock purchase and option plans (554,968) (383,093) (688,065)
- ------------------------------------------------------------------------------
Balance at End of Year 13,060,876 8,047,229 5,620,970
==============================================================================
</TABLE>
As of September 30, 1997, 5,105,027 shares of Common Stock were reserved for
the various stock plans described in the following Stock-Based Compensation
section.
27
<PAGE>
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
STOCK-BASED COMPENSATION
Statement of Financial Accounting Standards No. 123, "Accounting for Stock-
Based Compensation," encourages, but does not require, companies to record
compensation expense for stock-based employee compensation plans at fair value.
The company has chosen to continue to account for stock-based compensation
using the intrinsic value method described in Accounting Principles Board
Opinion No. 25, "Accounting for Stock Issued to Employees," and related
Interpretations. Under APB No. 25, compensation expense is measured as the
excess of market price over the price the employee must pay to acquire the
stock on the grant date. All options are granted by the company at market price
and, as a result, no compensation expense is recorded.
The company currently maintains a long term Management Incentive Program (MIP),
which provides for the issuance of up to 9,112,500 common shares in the form of
stock options and awards and the awarding of performance units payable in cash
or stock to key officers and other employees. Options under this plan vest over
a four-year period. Options granted prior to fiscal year 1996 expire five years
after grant, while options granted during fiscal years 1996 and 1997 expire ten
years after grant. In fiscal year 1997, there were 572,250 options granted
under the plan.
The company also maintains a Stock Option Plan for Non-Employee Directors (DSP)
that provides for the issuance of up to 1,012,500 common shares. Options under
this plan vest over a five year period and expire ten years after grant. In
fiscal year 1997, there were 90,000 options granted under the plan.
The company also has an Employee Stock Purchase Plan (ESPP) that expires on
February 1, 1999. All employees with six months of service as of the annual
offering date are eligible to participate in this plan. The plan authorizes up
to 1,771,875 shares of Common Stock to be sold to employees at 85% of market
value. All shares issued under this plan are restricted and cannot be sold for
one year following the date of purchase. In fiscal year 1997, there were 76,387
shares purchased by employees under the plan.
Pro forma information regarding net income and earnings per share is required
by Statement 123, and has been determined as if the company had accounted for
its stock option plans under the fair value method of that Statement. The fair
value of these options was estimated at the date of grant using a Black-Scholes
option pricing model with the following weighted average assumptions for the
1997 and 1996 MIP, DSP, and ESPP, respectively: risk-free interest rate of
6.11% and 6.70%; dividend yield of 0%; a volatility factor of .415, and a
weighted average expected life of the options of six years.
For purposes of pro forma disclosures, the estimated fair value of the options
is amortized to expense over the option's vesting period. The company's pro
forma information follows:
<TABLE>
<CAPTION>
Year Ended September 30
Dollars in thousands except per share amounts 1997 1996
- -----------------------------------------------------------------------
<S> <C> <C>
Pro forma income from continuing operations $104,485 $92,172
Pro forma net income 85,069 88,767
Pro forma net income from continuing
operations per share 1.14 1.00
Pro forma net income per share $ 0.93 $ 0.97
=======================================================================
</TABLE>
The effects on pro forma disclosures of applying Statement No. 123 are not
likely to be representative of the effects of such disclosures in future years.
Because Statement No. 123 is applicable only to options granted subsequent to
September 30, 1995, the pro forma effect is not fully reflected in fiscal years
1996 and 1997.
28
<PAGE>
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
A summary of the company's stock option activity and related information
follows:
<TABLE>
<CAPTION>
Year Ended September 30
1997 1996 1995
- ----------------------------------------------------------------------
<S> <C> <C> <C>
Outstanding at beginning of year 2,618,631 2,367,636 3,520,800
Granted 662,250 1,011,825 838,013
Expired or cancelled (143,925) (274,270) (72,152)
Exercised (488,923) (486,560) (1,919,025)
- ----------------------------------------------------------------------
Outstanding at End of Year 2,648,033 2,618,631 2,367,636
======================================================================
Exercisable at End of Year 673,147 472,275 306,788
======================================================================
</TABLE>
<TABLE>
<CAPTION>
WEIGHTED AVERAGE EXERCISE PRICE
<S> <C> <C> <C>
Outstanding at beginning of year $13.92 $ 9.44 $ 3.83
Granted 37.60 20.60 15.65
Expired or cancelled 20.91 12.73 5.08
Exercised 9.55 6.71 2.02
Outstanding at end of year 20.26 13.92 9.44
Exercisable at end of year $11.64 $ 8.16 $ 4.51
======================================================================
</TABLE>
The weighted average fair value of options granted during fiscal years 1997 and
1996 were $13.84 and $10.05 per share, respectively. The weighted average
contractual life of options outstanding as of September 30, 1997 is 8.74 years.
The range of exercise prices for options outstanding at September 30, 1997 was
$1.31 to $38.17. The range of exercise prices for options is wide due primarily
to the increasing price of Andrew Corporation stock over the period of the
grants.
OTHER
Foreign currency translation adjustments decreased equity by $4.9 million
during the year ended September 30, 1997. Foreign currency translation
adjustments decreased equity by $0.7 million and $2.3 million during the years
ended September 30, 1996 and 1995, respectively.
29
<PAGE>
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
GEOGRAPHIC SEGMENT INFORMATION
- -------------------------------------------------------------------------------
As a result of the disposal of the network segment, the company's operations
now consist of a dominant industry segment, Commercial Operations. This segment
serves commercial markets, including wireless service operators, radio
equipment companies, television stations, utilities and distributors. Products
include antennas, antenna systems and coaxial cable. Principal financial data
by major geographic area is as follows:
<TABLE>
<CAPTION>
Year Ended September 30
Dollars in thousands 1997 1996 1995
- -------------------------------------------------------------------------------
<S> <C> <C> <C>
SALES:
United States:
Customers $559,873 $508,358 $443,427
Intercompany 115,647 87,714 58,271
- -------------------------------------------------------------------------------
675,520 596,072 501,698
Europe, Africa, Middle East:
Customers 178,773 147,917 120,773
Intercompany 8,896 12,024 13,890
- -------------------------------------------------------------------------------
187,669 159,941 134,663
Asia-Pacific:
Customers 51,419 50,344 38,026
Intercompany 3,672 2,298 1,645
- -------------------------------------------------------------------------------
55,091 52,642 39,671
Other Americas:
Customers 79,410 59,388 22,517
Intercompany 6,382 5,557 5,285
- -------------------------------------------------------------------------------
85,792 64,945 27,802
Eliminations 134,597 107,593 79,091
- -------------------------------------------------------------------------------
CONSOLIDATED SALES $869,475 $766,007 $624,743
===============================================================================
UNITED STATES - EXPORT SALES $105,147 $108,675 $101,305
===============================================================================
OPERATING INCOME:
United States $104,154 $ 87,522 $ 75,567
Europe, Africa, Middle East 33,603 36,055 19,359
Asia-Pacific 20,460 23,951 18,199
Other Americas 5,576 3,776 3,678
- -------------------------------------------------------------------------------
CONSOLIDATED OPERATING INCOME $163,793 $151,304 $116,803
===============================================================================
ASSETS IDENTIFIABLE TO:
United States $456,566 $442,721 $367,025
Europe, Africa, Middle East 112,726 107,051 101,550
Asia-Pacific 48,362 18,559 17,449
Other Americas 73,500 62,898 19,090
- -------------------------------------------------------------------------------
CONSOLIDATED ASSETS $691,154 $631,229 $505,114
===============================================================================
</TABLE>
30
<PAGE>
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
Sales and transfers between geographic areas are made at amounts that
approximate manufacturing cost and generally consist of products that require
additional processing and with respect to which related selling, marketing and
engineering expenses are incurred prior to shipment to customers.
SELECTED QUARTERLY FINANCIAL INFORMATION (UNAUDITED)
- -------------------------------------------------------------------------------
Due to variability of shipments under large contracts, customers' seasonal
installation considerations, variations in product mix and in profitability of
individual orders, the company can experience wide quarterly fluctuations in net
sales and income. Consequently, it is more meaningful to focus on annual rather
than quarterly results.
<TABLE>
<CAPTION>
Dollars in thousands except per share amounts December March June September Total
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1997:
Sales $225,715 $202,227 $208,911 $232,622 $869,475
Gross profit 87,486 82,729 91,946 93,505 355,666
Income from continuing operations before income taxes 39,333 40,739 38,398 47,312 165,782
Discontinued operations 1,227 968 17,221 - 19,416
Net income 24,340 25,512 7,738 30,752 88,342
Income from continuing operations per share 0.28 0.29 0.27 0.34 1.18
Net income per share 0.26 0.28 0.08 0.34 0.96
Common Stock Price Range:
High 41-1/8 42-1/4 36-5/8 33-3/16
Low 31-1/6 33-2/3 22-5/8 24-7/8
===================================================================================================================
1996:
Sales $170,474 $175,437 $189,907 $230,189 $766,007
Gross profit 68,437 69,870 82,211 99,968 320,486
Income from continuing operations before income taxes 27,438 30,212 38,493 50,423 146,566
Discontinued operations 659 1,061 599 1,086 3,405
Net income 16,911 18,292 24,007 31,187 90,397
Income from continuing operations per share 0.19 0.21 0.27 0.35 1.02
Net income per share 0.18 0.20 0.26 0.34 0.98
Common Stock Price Range:
High 26-2/9 26 37 35-11/12
Low 16-4/9 13-5/6 25-5/6 27
====================================================================================================================
</TABLE>
31
<PAGE>
REPORT OF INDEPENDENT
AUDITORS
TO THE STOCKHOLDERS AND BOARD OF DIRECTORS
ANDREW CORPORATION
We have audited the accompanying consolidated balance sheets of Andrew
Corporation and subsidiaries as of September 30, 1997 and 1996, and the related
consolidated statements of income, stockholders' equity and cash flows for each
of the three years in the period ended September 30, 1997. These financial
statements are the responsibility of the company's management. Our
responsibility is to express an opinion on these financial statements based on
our audits.
We conducted our audits 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 Andrew Corporation
and subsidiaries at September 30, 1997 and 1996, and the consolidated results
of their operations and their cash flows for each of the three years in the
period ended September 30, 1997, in conformity with generally accepted
accounting principles.
\s\ Ernst & Young LLP
Chicago, Illinois
October 24, 1997
32
<PAGE>
<TABLE>
<CAPTION>
FIVE YEAR FINANCIAL SUMMARY
Dollars in thousands, except per share amounts 1997 1996 1995 1994 1993
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
OPERATIONS <F1> <F2>
Sales $869,475 $766,007 $624,743 $536,025 $394,276
Gross profit 355,666 320,486 264,013 217,796 156,130
Operating income 163,793 151,304 116,803 84,497 51,149
Other (income) expense (1,989) 4,738 4,362 7,226 3,145
Income from continuing operations before taxes 165,782 146,566 112,441 77,271 48,004
Income from continuing operations 107,758 93,802 71,854 49,360 30,587
Discontinued Operations
Loss (income) from operations of network
business, net of taxes 3,330 3,405 1,899 3,593 1,184
Loss on disposal of network business,
net of taxes 16,086 - - - -
Net income 88,342 90,397 69,955 45,767 29,403
Income from continuing operations per share 1.18 1.02 0.79 0.55 0.34
Net income per share 0.96 0.98 0.77 0.51 0.33
====================================================================================================
FINANCIAL POSITION
Working capital 332,721 284,602 227,164 171,705 142,675
Total assets 691,154 631,229 505,114 425,326 343,876
Long-term debt 35,693 40,423 45,255 46,092 52,467
Stockholders' equity 509,123 456,214 357,191 276,553 221,872
====================================================================================================
CASH FLOW
From operations 151,680 66,796 55,816 52,343 54,911
Used in investing activities (61,427) (78,683) (55,367) (38,692) (33,295)
From (used for) financing activities (25,499) (1,972) 4,570 4,259 (5,938)
Cash and equivalents $ 93,823 $ 31,295 $ 46,064 $ 40,714 $ 22,001
====================================================================================================
RATIOS AND OTHER DATA
Current ratio 3.6 3.4 3.4 2.8 3.2
Return on Sales:
Income from continuing operations 12.4% 12.2% 11.5% 9.2% 7.8%
Net income 10.2% 11.8% 11.2% 8.5% 7.5%
Return on average assets 13.4% 15.9% 15.0% 11.9% 8.9%
Return on average stockholders' equity 18.3% 22.2% 22.1% 18.4% 14.2%
====================================================================================================
Stockholders' equity per share outstanding $ 5.68 $ 5.03 $ 3.97 $ 3.12 $ 2.54
Foreign exchange gain (loss) 3,433 972 (1,612) (1,922) 1,380
Research and development 41,076 29,624 21,041 20,377 17,118
Additions to property, plant and equipment 49,144 52,475 48,076 28,471 18,479
Net assets located outside U.S. at year end 228,488 220,600 160,700 130,900 90,300
Orders entered 864,918 790,621 684,504 532,881 401,284
Order backlog at year end (under 12 months) 132,610 152,205 125,446 83,884 85,170
Order backlog at year end (over 12 months) $ 5,950 $ 14,756 $ 18,529 $ 595 $ 1,573
====================================================================================================
Number of full time equivalent employees
at year end:
Outside United States 1,185 1,162 763 661 584
Total employees 4,227 4,622 3,677 3,405 3,110
Average shares of stock outstanding (thousands) 91,607 91,782 90,728 90,462 88,788
Stockholders of record at year end 4,599 3,242 2,340 1,482 1,133
====================================================================================================
<FN>
<F1> The results of operations for all years have been updated for the disposal of the network
products segment in 1997.
<F2> The results of operations for all years have been updated for the pooling of interests with
the Antenna Company in 1996. All other acquisitions have been included in operations since
the date of acquisition.
</FN>
</TABLE>
34/35
<PAGE>
APPENDIX A
<TABLE>
<CAPTION>
PAGES WHERE GRAPHIC DESCRIPTION OF GRAPHIC AND IMAGE MATERIAL
IMAGE APPEARS (In thousands, except per share amounts)
<S> <C>
13 Bar graph of Sales (Dollars in Millions)
Data points: 1993-$394, 1994-$536, 1995-$625, 1996-$766, 1997-$869
13 Bar graph of Gross Profit (Dollars in Millions)
Data points: 1993-$156, 1994-$218, 1995-$264, 1996-$320, 1997-$356
13 Bar graph of Research and Development (Dollars in Millions)
Data points: 1993-$17, 1994-$20, 1995-$21, 1996-$30, 1997-$41
14 Bar graph of Sales and Administrative (Dollars in Millions)
Data points: 1993-$88, 1994-$113, 1995-$126, 1996-$140, 1997-$146
14 Bar graph of Income from Continuing Operations (Dollars in Millions)
Data points: 1993-$31, 1994-$49, 1995-$72, 1996-$94, 1997-$108
14 Bar graph of Net Income (Dollars in Millions)
Data points: 1993-$29, 1994-$46, 1995-$70, 1996-$90, 1997-$88
15 Bar graph of Sales per Employee (Dollars in Thousands)
Data points: 1993-$147, 1994-$191, 1995-$194, 1996-$192, 1997-$198
15 Bar graph of Net Cash from Operations (Dollars in Thousands)
Data points: 1993-$55, 1994-$52, 1995-$56, 1996-$67, 1997-$152
15 Bar graph of Capital Expenditures (Dollars in Thousands)
Data points: 1993-$18, 1994-$28, 1995-$48, 1996-$52, 1997-$49
</TABLE>
EXHIBIT 21
ANDREW CORPORATION AND SUBSIDIARIES
List of Significant Subsidiaries
Significant subsidiaries of the registrant, all of which are wholly-owned
unless otherwise indicated, are as follows:
Name of Jurisdiction
Sudsidiary of Incorporation
Andrew Africa Pty. Ltd................................South Africa
(owned 80%)
Andrew AG.............................................Switzerland
Andrew Canada Inc.....................................Canada
Andrew Espana, S.A....................................Spain
Andrew GmbH...........................................Germany
Andrew Industria e Comercio, Ltda.....................Brazil
(owned 70%)
Andrew International Corporation......................State of Illinois
Andrew Kommunikationssysteme AG.......................Switzerland
Andrew Corporation (Mexico), S.A. de C.V..............Mexico
Andrew SciComm Inc....................................State of Texas
Andrew S.A.R.L........................................France
Andrew S.R.L..........................................Italy
Andrew Systems Inc....................................State of Delaware
Andrew Telecommunications (Suzhou) Co. LTD............China
Andrew Wireless Products B.V..........................Netherlands
EXHIBIT 23
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in Registration Statement No.
2-86070 on Form S-8 dated August 23, 1983; Registration Statement No.
33-30364 on Form S-8 dated August 7, 1989; Registration Statement No.
33-58750 on Form S-8 dated February 24, 1993; Registration Statement No.
33-58752 on Form S-8 dated February 24, 1993; Registration Statement No.
33-52487 on Form S-8 dated March 2, 1994 and Post-Effective Amendment No.
1 to Registration Statement No. 33-52487 on Form S-8 dated March 3, 1994;
Registration Statement No. 333-12743 on Form S-4 dated September 26, 1996
of our report dated October 24, 1997, with respect to the consolidated
financial statements incorporated by reference in the Annual Report (Form
10-K) of Andrew Corporation for the year ended September 30, 1997.
\s\ Ernst & Young LLP
Chicago, Illinois
December 23, 1997
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> SEP-30-1997
<PERIOD-END> SEP-30-1997
<CASH> 93,823
<SECURITIES> 0
<RECEIVABLES> 188,506
<ALLOWANCES> 2,754
<INVENTORY> 166,890
<CURRENT-ASSETS> 459,814
<PP&E> 359,545
<DEPRECIATION> 221,955
<TOTAL-ASSETS> 691,154
<CURRENT-LIABILITIES> 127,093
<BONDS> 35,693
0
0
<COMMON> 1,027
<OTHER-SE> 508,096
<TOTAL-LIABILITY-AND-EQUITY> 691,154
<SALES> 869,475
<TOTAL-REVENUES> 869,475
<CGS> 513,809
<TOTAL-COSTS> 513,809
<OTHER-EXPENSES> 191,873
<LOSS-PROVISION> 646
<INTEREST-EXPENSE> 5,003
<INCOME-PRETAX> 165,782
<INCOME-TAX> 58,024
<INCOME-CONTINUING> 107,758
<DISCONTINUED> 19,416
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 88,342
<EPS-PRIMARY> 0.96
<EPS-DILUTED> 0.96
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<RESTATED>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> SEP-30-1996
<PERIOD-END> SEP-30-1996
<CASH> 31,295
<SECURITIES> 0
<RECEIVABLES> 201,237
<ALLOWANCES> 3,648
<INVENTORY> 166,609
<CURRENT-ASSETS> 401,984
<PP&E> 334,088
<DEPRECIATION> 201,388
<TOTAL-ASSETS> 631,229
<CURRENT-LIABILITIES> 117,382
<BONDS> 40,423
0
0
<COMMON> 685
<OTHER-SE> 455,529
<TOTAL-LIABILITY-AND-EQUITY> 631,229
<SALES> 766,007
<TOTAL-REVENUES> 766,007
<CGS> 445,521
<TOTAL-COSTS> 445,521
<OTHER-EXPENSES> 169,182
<LOSS-PROVISION> 806
<INTEREST-EXPENSE> 5,183
<INCOME-PRETAX> 146,566
<INCOME-TAX> 52,764
<INCOME-CONTINUING> 93,802
<DISCONTINUED> 3,405
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 90,397
<EPS-PRIMARY> 0.99
<EPS-DILUTED> 0.98
<FN>
All amounts in this exhibit have been restated to reflect the disposal of the
company's network products business, as well as a three-for-two stock split for
stockholders of record on February 25, 1997.
</FN>
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<RESTATED>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> SEP-30-1995
<PERIOD-END> SEP-30-1995
<CASH> 46,064
<SECURITIES> 0
<RECEIVABLES> 150,669
<ALLOWANCES> 3,071
<INVENTORY> 124,325
<CURRENT-ASSETS> 322,745
<PP&E> 277,423
<DEPRECIATION> 174,862
<TOTAL-ASSETS> 505,114
<CURRENT-LIABILITIES> 95,581
<BONDS> 45,255
0
0
<COMMON> 457
<OTHER-SE> 356,734
<TOTAL-LIABILITY-AND-EQUITY> 505,114
<SALES> 624,743
<TOTAL-REVENUES> 624,743
<CGS> 360,730
<TOTAL-COSTS> 360,730
<OTHER-EXPENSES> 147,210
<LOSS-PROVISION> 922
<INTEREST-EXPENSE> 5,643
<INCOME-PRETAX> 112,441
<INCOME-TAX> 40,587
<INCOME-CONTINUING> 71,854
<DISCONTINUED> 1,899
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 69,955
<EPS-PRIMARY> 0.77
<EPS-DILUTED> 0.77
<FN>
All amounts in this exhibit have been restated to reflect the disposal of the
company's network products business, as well as a three-for-two stock split for
stockholders of record on February 21, 1996 and a three-for-two stock split for
stockholders of record on February 25, 1997
</FN>
</TABLE>
DESCRIPTION OF CAPITAL STOCK
COMMON STOCK
Andrew Corporation ("Andrew" or the "Company") has 400,000,000 authorized
shares of Common Stock, $.01 par value (the "Common Stock"), of which
89,657,334 shares were issued and outstanding on September 30, 1997. The Common
Stock is listed and traded on The Nasdaq Stock Market under the symbol "ANDW."
Each outstanding share of Andrew Common Stock is entitled to one vote. In
all matters other than the election of members of Andrew's Board of Directors
and certain fundamental transactions, stockholder action is approved by a
majority vote of the holders of Andrew Common Stock present in person or
represented by proxy at the meeting. The members of Andrew's Board of Directors
are elected by a plurality vote of the holders of Andrew Common Stock present in
person or represented by proxy at the meeting. Andrew's Board is not classified
and Andrew's Certificate of Incorporation does not provide for cumulative
voting.
Holders of Andrew Common Stock are entitled to such dividends as the Board
of Directors may declare out of funds legally available therefor. It is the
present policy of Andrew's Board of Directors to retain earnings in the business
to finance Andrew's operations and investments, and Andrew does not anticipate
payment of cash dividends in the foreseeable future. Long-term debt agreements
include restrictive covenants that, among other things, restrict dividend
payments and repurchases of Common Stock. At September 30, 1997, $356,707,000
was not restricted for purposes of such payments.
RIGHTS
The Company has adopted a Stockholder Rights Plan, in the form of a Rights
Agreement, under which each share of Common Stock has associated with it one
common stock purchase right (a "Right"). Each Right entitles the holder to
purchase, under the circumstances described below, one share of Common Stock for
a price of $333.33, subject to adjustment pursuant to the Rights Agreement. The
Rights are not currently exercisable and, until they are exercisable, are
transferable only with the related shares of Common Stock. Separate Rights
certificates will be distributed when the Rights become exercisable. The holder
of a Right has no rights as a stockholder of the Company, including the right to
vote or to receive dividends. The Rights will expire at the close of business on
December 16, 2006, unless redeemed by the Company prior to such date.
The Rights become exercisable at the specified exercise price upon the
earlier to occur of (i) 10 days after a public announcement that any person or
group, other than the Company and certain related entities (an "Excluded
Person") has acquired (an "Acquiring Person") beneficial ownership of 15% or
more of the outstanding shares of Common Stock and (ii) 10 business days (unless
delayed by the Board of Directors) after any person or group (other than an
Excluded Person) has commenced, or announced the intention to commence, a tender
or exchange offer that would, upon its consummation, result in such person or
group being the beneficial owner of 15% or more of the outstanding shares of
Common Stock.
In the event that any person or group becomes an Acquiring
Person, each holder of a Right, other than the Acquiring Person (whose Rights
thereafter will be void), is entitled to purchase that number of shares of
Common Stock having a market value at the time of such acquisition of two times
the exercise price of the Right. After a person or group has become an Acquiring
Person, if the Company is acquired in a merger or other business combination
transaction or 50% or more of its consolidated assets or earning power are sold,
each holder of a Right is entitled to purchase that number of shares of common
stock of the acquiring company that at the time of such acquisition has a market
value of two times the exercise price of the Right.
The Rights are redeemable, as a whole, at a redemption price of $.001 per
Right, subject to adjustment, at any time prior to the acquisition by a person
or group of beneficial ownership of 15% or more of the outstanding shares of
Common Stock.
At any time after any person or group becomes an Acquiring Person and
before such Acquiring Person acquires 50% or more of the outstanding shares of
Common Stock, the Board of Directors may exchange the Rights (other than Rights
that have become void) in whole or in part, at an exchange ratio of one share of
Common Stock per Right (subject to adjustment), or cash, other equity or debt
securities of the Company, other assets, or any combination of the foregoing,
having an aggregate value equal to the then current market price of one share of
Common Stock.
Anti-Takeover Effects of Rights. Although the Rights are not intended to
prevent an acquisition of the Company on terms that are favorable and fair to
all stockholders, the Rights may discriminate against a prospective holder of
Andrew Common Stock as a result of such holder owning a substantial amount of
shares and may have the effect of delaying, deferring or preventing a change in
control of Andrew. The Rights should not interfere, however, with any merger or
business combination approved by the Company's Board of Directors since the
Rights may be redeemed by the Company prior to the time that a person or group
becomes an Acquiring Person. Nonetheless, by causing substantial dilution to a
person or group that attempts to acquire the Company on terms not approved by
the Company's Board of Directors, the Rights may interfere with certain
acquisitions, including acquisitions that may offer a premium over market price
to some or all of the Company's stockholders.
CERTAIN CORPORATE PROVISIONS
Acquisition Proposals. Andrew's Certificate of Incorporation provides that
the Board of Directors is entitled to consider subjective factors in determining
whether an acquisition proposal is in the best interests of the Company and its
stockholders. Such subjective factors include the social, legal and economic
effects upon employees, suppliers, customers and the Company's business
community as well as the Company's long-term business prospects. The Certificate
of Incorporation broadly defines acquisition proposals to include any tender
offer, exchange offer or other method of acquiring equity securities of the
Company to gain control, merger, consolidation or purchase of all or
substantially all of the property and assets of the Company.
Special Meetings of Stockholders; No Stockholder Action By Written Consent.
The Certificate of Incorporation and By-laws provide that special meetings of
stockholders of the Company may be called only by a majority of the Board of
Directors. In addition, the Certificate of Incorporation and By-laws provide
that the stockholders of the Company may only take actions at a duly called
annual or special meeting of stockholders and may not take action by written
consent.
Advance Notice Requirements for Stockholder Proposals and Nomination of
Directors. The By-laws provide that stockholders seeking to bring business
before, or nominate directors at, any annual meeting of stockholders, must
provide timely notice thereof in writing. To be timely, a stockholder's notice
must be given in writing to the Secretary of the Company not more than 90 days
in advance of the anniversary of the prior year's annual meeting. With respect
to business to be transacted or elections to be held at a special meeting of
stockholders, written notice must be given to the Secretary not more than 10
days after the date on which notice of the special meeting is given to such
stockholder. The By-laws also specify certain requirements for a stockholder's
notice to be in proper written form.
DELAWARE ANTI-TAKEOVER LAW
Section 203 of the Delaware General Corporation Law prohibits certain
transactions between a Delaware corporation and an "interested stockholder,"
which is defined as a person who, together with any affiliates or associates of
such person, beneficially owns, directly or indirectly, 15% or more of the
outstanding voting shares of a Delaware corporation. This provision prohibits
certain business combinations (defined broadly to include mergers,
consolidations, sales or other dispositions of such assets having an aggregate
value in excess of 10% of the consolidated assets of the corporation, and
certain transactions that would increase the interested stockholder's
proportionate share ownership in the corporation) between an interested
stockholder and a corporation for a period of three years after the date the
interested stockholder becomes an interested stockholder, unless (i) the
business combination is approved by the corporation's board of directors prior
to the date the interested stockholder becomes an interested stockholder, (ii)
the interested stockholder acquired at least 85% of the voting stock of the
corporation (other than stock held by directors who are also officers or by
certain employee stock plans) in the transaction in which it becomes an
interested stockholder or (iii) the business combination is approved by a
majority of the board of directors and by the affirmative vote of 662/3% of the
outstanding voting stock that is not owned by the interested stockholder.
