SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 10-K
(MARK ONE)
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT
OF 1934 [FEE REQUIRED]
For the fiscal year ended September 30, 1996
OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934 [NO FEE REQUIRED]
For the transition period from to
Commission file number 1-6856
ANDAL CORP.
(Exact name of registrant as specified in its charter)
New York 13-2571394
(State or other jurisdiction of (I. R. S. employer ID no.)
incorporation or organization)
200 Roundhill Drive, Rockaway, New Jersey 07866
(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code (201) 625-3400
Securities registered pursuant to section 12(b) of the Act:
None
(Title of class)
Securities registered pursuant to Section 12(g) of the Act:
Title of each class Name of each exchange
on which registered
Common Stock, $1.00 par value None
5 1/2% Convertible Subordinated Debentures due 1997 None
Indicate by check mark whether the registrant: (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days. Yes X No
Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K is not contained herein, and will not be contained,
to the best of registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [ ]
Non-affiliates of the Registrant hold approximately 28% of the
Registrant's common stock. There is currently no established trading market
for such stock. See Item 5 within.
As of December 31, 1996, the number of outstanding shares of Registrant's
Common Stock was 447,359 shares.<PAGE>
PART I
Item 1. Business
GENERAL
Andal Corp. (the "Company" or "Andal"), through its Multi-Arc Inc.
subsidiary ("Multi-Arc"), is engaged in surface enhancement which is the
utilization of advanced technologies to apply thin-film coatings of various
metals, metal compounds, and other materials to base materials to enhance
their hardness, wear and corrosion resistance, lubricity, and appearance.
Multi-Arc owns and operates nine coating centers in the United States, one in
Canada, and one in England, and has royalty or equity interests or to which it
licenses technology through the ION BOND Network in 25 coating centers in
Europe, Japan, India, Korea, Taiwan, Singapore, and Argentina. These centers
offer coating services on a fee basis to manufacturers and end-users of
industrial tools, components, and other products. Multi-Arc also engages in
the design, manufacture, assembly, and sale of proprietary coating equipment
systems to manufacturers and large volume end-users of tools, consumer
products, and other products that benefit from surface enhancement, as well as
to its own joint venture coating centers. See Note 20 of the Notes to
Consolidated Financial Statements included elsewhere in this Report for
certain information regarding revenues, operating profit and identifiable
assets, and other information about foreign operations of the Company for each
of the three years in the period ended September 30, 1996.
The Company is presently in discussion with a much larger company for
the sale of the Company's principal operating subsidiary, Multi-Arc Inc. No
agreement has been reached on either price or structure of any transaction.
Important factors which could interfere with the completion of this
transaction are the ability of the parties to reach an agreement as to price
and structure or other details of the transaction and the satisfactory
completion of the purchaser's due diligence concerning Multi-Arc's business
affairs. There can be no assurance that these dicussions will result in any
transaction.
In October 1995, Multi-Arc (UK) Ltd., a wholly-owned subsidiary of
Multi-Arc, acquired a 33% interest in Multi-Arc Eifeler Beschichtungs Gmbh
("Austria") in exchange for $49,000 in cash and guarantees of certain of
Austria's bank debt of $360,000. In July 1996, Multi-Arc opened a wholly-owned
coating center in Columbus, Ohio. In October 1996, Multi-Arc (UK) Ltd.
acquired a 33% interest in Preci-Coat S. A., a Switzerland joint venture, for
$420,000 in cash and bank guarantees of $1.6 million.
SURFACE ENHANCEMENT
Surface enhancement is the exploitation of a variety of technological
processes to produce new or changed surface properties of materials by the
deposition of thin films only microns thick (a micron is one millionth of a
meter).
The electric arc technology utilized by Multi-Arc in its Physical Vapor
Deposition ("PVD") process (ION BOND ) was originally developed in the Soviet
Union, and Multi-Arc acquired a patent and know-how license from the U. S. S.
R. in 1979. Multi-Arc also employs a Chemical Vapor Deposition ("CVD")
process.
Multi-Arc first introduced the ION BOND process on a commercial basis
in the United States in 1981 and has continually improved and enhanced the
original technology. Initially, the principal application of the ION BOND
process was the coating of metal cutting tools, such as drills, used in metal-
working industries to increase the useful life and productivity of such tools.
Subsequently, Multi-Arc has been successful in developing additional
commercial applications for its processes, including the coating of metal
forming tools, such as dies, molds and punches, jewelry, carbide inserts,
plastic injection molds and screws, and medical instruments and implants.
Multi-Arc has also effected improvements in CVD technology which it employs
for the coating of steel and carbide materials.
In 1995, Multi-Arc formed the TETRABOND division to commercialize its
amorphous diamond films for use in cutting tools, computer hardware, medical
instruments, and decorative and industrial wear component applications.
Multi-Arc derives revenues from (i) the 11 coating centers owned and
operated by Multi-Arc located in the United States, Canada, and England, and
the 25 coating centers in which it has varying royalty or equity interests or
to which it licenses technology located in Europe, Japan, India, Korea,
Taiwan, Singapore, and Argentina, all of which coating centers perform coating
services on a fee basis; (ii) the design, manufacture, assembly, and sale of
proprietary coating equipment systems to coating centers and to manufacturers
of, and large volume end-users of, tools and other industrial products, such
as component parts requiring a high degree of wear resistance; (iii) royalties
paid by system purchasers for licenses to use the coating technology which the
systems employ; and (iv) research and development contracts.
Sales and Marketing
Multi-Arc's coating systems and services are marketed throughout the
United States by its own sales personnel, through independent sales
representatives, through the use of direct marketing catalogues, and the
display of its products at trade shows. Sales personnel at each of the
coating centers are involved in marketing the services performed at such
centers.
Competition
There are several manufacturers in the United States, Europe, and Japan
which produce coating equipment utilizing a PVD process; and Multi-Arc
anticipates that additional PVD technologies will be developed as the surface
enhancement industry develops. Moreover, there are numerous manufacturers of
CVD equipment which compete with the CVD systems manufactured by Multi-Arc, as
well as with its PVD systems in certain applications. There are also several
technologies other than the PVD and CVD processes, some of which involve
surface enhancement, which are currently being used by numerous other firms to
extend the useful lives and productivity of metal-cutting tools and other
items.
Although there are several companies which operate coating centers in
the United States that utilize PVD or CVD technology, only one is a
significant national and international competitor of the Company. The Company
also competes with numerous coating centers in the United States that employ
technologies other than PVD and CVD.
The Company competes in the manufacture of coating systems primarily on
the basis of quality and technical innovation, as well as price. In the
operating of coating centers, quality, price, and service are the principal
competitive factors.
Backlog
The approximate dollar amount of Multi-Arc's backlog of coating systems,
ancillary equipment, and coating services orders at September 30, 1996 and
1995 was $896,000 and $390,000, respectively. The Company believes that all
of its backlog orders at September 30, 1996 will be shipped within the
Company's current fiscal year.
Patents and Trademarks
Multi-Arc has been issued a number of patents. Although the Company
considers these patent rights to be significant, it believes that Multi-Arc's
competitive position and its continued operations are more dependent on its
technical knowledge, its processes, and its research and development programs
than on patent protection. The Company intends to continue to apply for
patent protection with respect to new inventions in order to protect its
competitive position. Multi-Arc has registered several trademarks, the
principal ones being "Multi-Arc ," "TETRABOND ," and "ION BOND ." Although
these trademarks afford Multi-Arc a degree of recognition in the industry and
are valuable assets, the Company does not regard them as material to its
overall business.
Research and Development
Multi-Arc is engaged in ongoing research and development in connection
with new and existing products. Research and development expenditures have
been expensed as incurred and amounted to $1,426,000, $1,628,000, and
$1,400,000 for fiscal 1996, 1995, and 1994, respectively. In addition, the
Company has research and development agreements with several licensees
pursuant to which each company makes known to the others the results of
research undertaken by it in the field of surface enhancement.
Environmental Considerations
Compliance with federal, state, and local provisions which have been
enacted or adopted regulating the discharge of materials into the environment,
or otherwise relating to the protection of the environment, is not expected to
have a material effect on the Company's capital expenditures, earnings, or
competitive position.
Employees
As of September 30, 1996, Multi-Arc employed approximately 360 persons,
none of whom are covered by collective bargaining agreements. Multi-Arc
believes that its relationship with its employees is good.
OTHER
Purchase and Sale of the UBC Property
Prior to May 8, 1996, the Company, directly or through a wholly-owned
subsidiary, UBC Virginia Corp. ("UBC Corp.") had owned an option (the
"Option") to purchase a parcel of real estate (the "Property") located on 61st
Street and First Avenue in New York City, which Option had been carried on the
books of the Company at nil value for many years. The original cost of the
Option was $1.5 million. UBC Corp. was merged into the Company in March 1996,
after which time the Option became directly owned by the Company.
In 1990, the Option was pledged as security for a $5 million loan,
hereafter referred to as the "Option Loan," made to the Company by Alan N.
Cohen, who was then President and a Director of the Company, Paul Milstein,
who was then a Director of the Company, and Frankhill Associates, a limited
partnership of which Andrew J. Frankel, who was then Chairman of the Board and
a Director of the Company, is a general partner (collectively, in such
capacity, the "Option Lenders").
The Option granted the Company the right to purchase the Property for
approximately $3 million in cash and was exercisable only after the death of
the later to die of two of the principals of the corporation that granted the
Option. Such death occurred in 1995. The Company did not have the cash
required to exercise the Option, and it could not raise it through borrowing
from unrelated parties or through the sale of assets other than the Option.
However, under the terms of the Option Loan, the Company was obligated to
exercise the Option. Accordingly, the Option was exercised in October 1995;
and the Company purchased the Property on May 8, 1996. In order to make the
purchase, on May 7, 1996, the Company borrowed $3.3 million (the "Demand
Loan") from the Option Lenders evidenced by a demand note and secured by a
mortgage on the Property. The Demand Loan bore interest at 10% per annum.
The Company's failure to exercise the Option and pay the purchase price
for the Property would have resulted in an event of default under the Option
Loan, which would have given the Option Lenders the right to exercise the
Option on the Company's behalf and to declare the Option Loan immediately due
and payable, including all sums advanced by the Option Lenders in exercising
the Option. In addition, the Option Lenders would have had all of the
remedies available to them under applicable law for secured lenders,
including, without limitation, the public or private sale of the Property
acquired by exercise of the Option.
Until January 1995, the Company had been under contract to sell the
Option to an unrelated real estate developer, who had contracted to purchase
the Option in 1984. The developer was unable to obtain financing to
consummate the purchase; and, as a result, the Company terminated the
contract. Upon termination of the contract, the Company attempted to sell the
option to various other parties. In addition, after the Company received
notice from the optionor that the 90-day period for exercise of the Option had
commenced, the Company made contact with several brokers who were not able to
identify a buyer. The Company's attempts to sell the Option did not result in
any bona fide offer from a third party to purchase the Option.
Once it was learned that the Option had become exercisable, the Option
Lenders expressed an interest in acquiring the Property in satisfaction of the
amount outstanding on the Option Loan. In that event, the Company would no
longer have been obligated with respect to the $3 million purchase price
obligation due on the Option exercise.
The Board of Directors of the Company met on October 5, 1995 to discuss
the difficulties entailed in the Company's exercise of the Option, including
the Company's lack of cash flow, diminished borrowing power, debt structure,
and difficulties in raising funds through a private placement of Multi-Arc's
common stock and subordinated debentures. After discussion, the Board members
who were not Option Lenders (Messrs. Flood and Glickman) authorized the
officers of the Company to engage an independent appraiser to conduct an
appraisal of the Property, following which such Board members would seek to
negotiate a transaction with the Option Lenders taking into account, in
addition to the appraisal, all material circumstances relating to the
Property, including, without limitation, the inability of the Company to raise
sufficient funds required to exercise the Option, the time constraints within
which the Company must exercise the Option, and the consequent probability
that, without a sale to a related party, the Option would expire worthless.
On November 21, 1995, the Company received a report from the independent
appraiser it had retained which concluded that the range for the market value
of the Property was between $9.9 million and $11.9 million (before deducting
the $3 million that would have to be paid to exercise the Option), depending
on the ultimate cost of complying with zoning restrictions and other costs
that would be incurred in the development of the Property. The appraiser's
conclusion was based on a number of assumptions, including the assumption that
a sale would occur after a reasonable exposure in a competitive market under
all conditions requisite for a fair sale, with the buyer and seller acting
prudently, knowledgeably, for self-interest, and not under undue duress.
On March 4, 1996, at a special meeting of the Board of Directors of the
Company, appropriate officers of the Company were authorized and empowered to
engage in negotiations with the Option Lenders to reach a definite agreement
to sell the Option to them under terms and conditions that were outlined by
the Board. Although the parties were unable to reach a definitive agreement
prior to May 8, 1996, the Company continued to negotiate with affiliates of
the Option Lenders for the sale of the Property to them; and, on July 10,
1996, the Company entered into a contract to sell the Property to FAM, LLC
("FAM"), a Delaware limited liability company owned by Frankhill Associates,
the Alan N. Cohen Family Company, LLC, a Delaware limited liability company,
of which Alan N. Cohen is manager, and Builtland Associates, a New York
general partnership, of which Paul Milstein is a general partner. Builtland
Associates is the managing director of FAM and, as such, controls its
activities.
On August 1, 1996, FAM purchased the Property for $9.1 million, paid for
as follows:
a) Cancellation of the principal balance of the Option Loan in
the amount of $5,571,285 (after adjustment for a
restructuring which occurred in 1992) due to Frankhill
Associates, the Alan N. Cohen Family Company, LLC, and Paul
Milstein, and at closing held by FAM.
b) Cancellation of the Demand Loan of $3.3 million due
Frankhill Associates, the Alan N. Cohen Family Company, LLC,
and Paul Milstein, and at closing held by FAM.
c) Cash payment to the Company of $228,715.
In addition to the consideration outlined above, the Company was not
required to pay unpaid interest of $283,000 on the Option Loan and Demand Loan
and will be entitled to additional consideration if, within one year from the
date of sale to FAM, all or any portion of the Property is further transferred
to a bona fide third party or if FAM enters into an agreement to transfer all
or any portion of the Property to a bona fide third party and such transfer
ultimately occurs. In either of such events, the Company will be entitled to
50% of the amount by which the "Net Proceeds" of the sale of all or any
portion of the Property exceeds $10 million. In no event can such additional
consideration exceed $3 million. "Net Proceeds" is defined to mean the gross
sales price attributable to the sale of all or any portion of the Property
plus the then fair market value of any of the Property retained by FAM in
connection with a partial sale, less any and all transaction costs, taxes, and
all other expenses of FAM including, without limitation, brokerage
commissions, reasonable attorney's fees, and transfer taxes.
The Company reported a gain of approximately $6 million from the sale.
Management Changes and Relocation of Executive Office
On August 31, 1996, the following management changes occurred:
a) Andrew J. Frankel and Alan N. Cohen retired as officers of
the Company. They continue to serve as members of the Board
of Directors.
b) Peter D. Flood, the President of Multi-Arc Inc., was elected
Chairman of the Board, Chief Executive Officer, and
President of Andal. (See Item 11, "Employment Agreements,"
included elsewhere herein for a description of the
Employment Agreement entered into with Mr. Flood.)
c) Walter N. Kreil, Jr., Vice President and Chief Financial
Officer of Multi-Arc Inc., was elected Senior Vice President
and Chief Financial Officer of Andal and a member of the
Board of Directors. (See Item 11, "Employment Agreements,"
included elsewhere herein for a description of the
Employment Agreement entered into with Mr. Kreil.)
On August 31, 1996, Messrs. Andrew J. Frankel, then Chairman of the
Board of Directors, and Alan N. Cohen, then President of the Company, retired
pursuant to an agreement which provides that, in exchange for the issuance of
32,500 common shares of the Company to each of them, they jointly agreed to
reimburse Andal for the lease obligation of Andal's former executive
headquarters office in New York City and certain other costs of operation of
that office, including the salary of Andal employees located there. The
Company agreed to maintain, at its own expense, health and life insurance
benefits on Andal's New York employees and to continue to pay the costs of
letter of credit guarantees by Mr. Frankel and Mr. Cohen until September 29,
1998, at which time Andal will use its best efforts to replace the letters of
credit with other security. The Company recorded a charge of $441,000 in
connection with this Agreement. In September 1996, Andal's executive office
records were moved to Multi-Arc's facilities in Rockaway, New Jersey; and that
facility now serves as executive headquarters of the Company.
Refinancing of Multi-Arc's Indebtedness
On August 27, 1996, Multi-Arc Inc. completed a refinancing of its
indebtedness to its principal bank lender, and obtained a $7 million Term
Loan, a $1.5 million Equipment Term Line of Credit, and a $5 million Revolving
Credit Facility. (See Note 12 of the Notes to Consolidated Financial
Statements included elsewhere in this Report.)
Retirement of Fleet Indebtedness
On August 27, 1996 Andal Corp. retired $1,404,000 of indebtedness owing
to Frankhill Associates, Alan N. Cohen, and Paul Milstein in exchange for
45,000 shares of the Company's common stock. Frankhill Associates and Messrs.
Cohen and Milstein had purchased the indebtedness from the Fleet Bank in 1994.
During the year, the Company had repaid $543,000 of the Fleet Debt in cash;
and, at September 30, 1996, the balance of $96,000 was still owing to Peter D.
Flood. (See Item 13, Certain Relationships and Related Transactions included
elsewhere in this Report.)
Item 2. Properties
The Company's executive office and Multi-Arc's administrative offices
and Northeast Regional Coating Center, including TETRABOND , are located in a
20,400 square foot building located in Rockaway, New Jersey. The building,
which the Company has an option to purchase, leases for a base rent of
$227,000 per year. The eight other facilities which are operated by the
Company in the United States and Canada occupy leased facilities containing an
aggregate of approximately 104,000 square feet, at an aggregate annual rental
of approximately $656,000. In addition, the Company leases a 25,000 square
foot coating facility in the United Kingdom for 32,250 pounds sterling
(approximately $51,000) per year.
All of the foregoing facilities are suitably equipped and adequate for
their current use.
Item 3. Legal Proceedings
The Company is aware of various lawsuits, claims, and administrative
proceedings which are pending involving it or its subsidiaries. In the
opinion of the Company's management, these matters will not result in any
material adverse effect on the Company's consolidated financial condition.
Item 4. Submission of Matters to a Vote of Security Holders
None.
<PAGE>
PART II
Item 5. Market for the Company's Common Equity and Related Stockholder
Matters
The Company's common stock was delisted from the American Stock Exchange
in October 1992. During the period from November 1992 until September 1995,
the Company's common stock was listed on the NASD Electronic Bulletin Board by
a market maker. Subsequent to September 1995, the Company's common stock has
not been listed on the NASD Electronic Bulletin Board or on any other
established public market. During the period that the Company's common stock
was listed on the NASD OTC Bulletin Board, transactions in and quotations of
the stock were limited and sporadic and, in the Company's opinion, did not
constitute an established public trading market. There has been no listing of
and quotations on the Company's common stock during the fiscal year ended
September 30, 1996. The following table sets forth the range of high and low
bid prices per share of the common stock as reported by the Pink Sheets and
the NASD OTC Bulletin Board during fiscal 1995. Such quotations reflect
inter-dealer prices without retail mark-up, mark-down, or commission and may
not necessarily represent actual prices.
BID PRICES
High Low
FISCAL 1995
First Quarter $2.50 $2.00
Second Quarter $2.25 $2.25
Third Quarter $2.25 $2.25
Fourth Quarter $2.25 $2.25
As of December 31, 1996, the number of registered holders of the
Company's common stock was 1,125.
The Company has never paid a cash dividend on its common stock and does
not anticipate paying such dividends in the foreseeable future.
Item 6. Selected Financial Data
The following table sets forth selected financial data as of the fiscal
year-end of each respective year and for the year then ended:
September 30,
1996 1995 1994 1993 1992
(Thousands of dollars, except per share amounts)
Operating revenues $31,615 $30,383 $27,077 $24,887 $20,834
Income (loss) from
operations 1,635 2,414 1,627 832 (1,048)
Income (loss) from continuing
operations 8,151 879 (771) (433) (2,733)
Income (loss) from
discontinued
operations 234 1,007 (350) (527) (2,067)
Net income (loss) 8,385 1,886 (1,121) (960) (4,800)
Income (loss) per share from
continuing operations 24.00 2.67 (2.34) (1.31) (8.29)
Net income (loss) per
share 24.69 5.72 (3.40) (2.91) (14.55)
Average number of common shares
outstanding (000) 340 330 330 330 330
Total assets $27,196 $23,625 $20,457 $23,475 $24,282
Long-term obligations (excluding
current maturities) 10,181 17,585 16,141 18,721 20,398
Shareholders' equity
(deficit) 4,855 (5,098) (6,984) (5,863) (4,903)
Book value (deficit) per share at
year end 10.85 (15.46) (21.17) (17.77) (14.86)
See Note 6 of the Notes to Consolidated Financial Statements for a
description of the income (loss) from discontinued operations recorded in
1996, 1995, and 1994. The 1993 loss from discontinued operations resulted
from legal expenses and settlements on litigation related to the Company's
discontinued construction operations. The loss from discontinued operations
in 1992 relates to a $1,852,000 loss on disposal of the Company's investment
in preferred stock, a substantial portion of common stock, and promissory
notes due from Olsher Metals Corporation ("OMC") and a $215,000 loss for the
Company's equity share of OMC's loss for 1992.
Item 7. Management's Discussion and Analysis of Financial Condition and
Results of Operations
Results of Operations
1996 vs. 1995
A summary of information relating to certain foreign operations for the
three fiscal years ended September 30, 1996 is provided in Note 20. All note
references in this discussion and analysis are to the Notes to Consolidated
Financial Statements included elsewhere in this Report.
Andal's consolidated operating revenues, entirely attributable to Multi-
Arc, for the year ended September 30, 1996 were $31.6 million compared with
$30.4 million in 1995. The increase was the result of higher coating services
revenues of approximately $2.7 million or 10%, but was partially offset by a
decrease in equipment sales of $1.6 million. Coating services revenues
benefitted particularly from an increase of $580,000, or 16%, in the United
Kingdom, which reflected better economic conditions and significantly improved
market penetration. The increase in coating service revenues in the United
States was a result of moderately better economic conditions. Equipment sales
revenues were down because of decreased demand. Royalty and commission income
increased $131,000 from the prior year, which reflects higher commissions on
equipment sales in Japan. Equity in foreign joint ventures provided income of
$104,000 in 1996 compared with $53,000 in 1995. The 1996 amount includes
income from Multi-Arc India Ltd. ("India") of $147,000, offset by a loss from
Multi-Arc's Singapore joint venture of $43,000.
Income from continuing operations was $8.2 million in 1996 compared with
$879,000 in 1995. The principal reason for the improvement was a $6.0 million
gain on the sale of the 61st Street property (see Note 2) and a tax benefit of
$2.2 million (see Note 17).
Operating profits of Multi-Arc increased $744,000 in 1996. The improved
operating income in the coating service business of $1.1 million was due to
gross profits from the higher revenue offset in part by start-up costs of a
new service center in Columbus, Ohio. The lower operating profits from
equipment sales of approximately $492,000 was due to lower demand for
equipment. Operating profits were adversely affected by higher depreciation
expense of $193,000 from recent capital spending which was offset by lower
research and development costs of $202,000. Equity in earnings of foreign
joint ventures rose $51,000 over prior year. Operating profit was favorably
affected by $131,000 of higher royalty and commission income.
Selling, general, and administrative expenses rose $1.6 million from the
prior year. Approximately $1.0 million of the increase related to both higher
personnel and travel costs at Multi-Arc due to continued expansion of its
selling and marketing efforts and international activities. Andal's general
corporate expenses increased $621,000 due primarily to retirement costs of
$441,000 (see Note 3) and accruals for management signing bonuses of $300,000,
offset by lower New York office expenses.
Investment income for 1996 includes recognition of $232,000 of deferred
income on the collection of notes related to the sale of a minority interest
in Multi-Arc (see Note 4) and $42,000 of interest income on said notes, offset
by a writedown of $143,000 of the Company's investment in Integrated Brands
Inc. ("Integrated") (see Note 7).
Interest expense for 1996 was $1.7 million compared with $1.8 million in
1995. The decrease was a function primarily of lower debt levels.
Operating revenues and operating income attributable to foreign
operations rose $831,000 and $438,000, respectively, over 1995, principally as
a result of a continued substantial improvement in operations in the United
Kingdom.
For information concerning the provision for income taxes, as well as
information regarding differences between effective tax rates and statutory
rates, see Note 17 of the Notes to Consolidated Financial Statements.
1995 vs. 1994
Andal's consolidated revenues, entirely attributable to Multi-Arc, for
the year ended September 30, 1995 were $30.4 million compared with $27.1
million in 1994. The increase was the result of both higher coating services
revenues of approximately $1.9 million or 8% and higher revenues from
equipment sales of $1.4 million. Coating services revenues benefitted
particularly from an increase of $830,000 or 29% in the United Kingdom which
reflected better economic conditions and significantly improved market
penetration. Coating service revenues in the United States rose as a result
of moderately better economic conditions. Equipment sales revenues were up
because of increased system deliveries with sales in the United States,
Taiwan, and India. Royalty and commission income decreased $106,000 from the
prior year which reflects the final effects of Multi-Arc's restructuring of
its European licensee arrangements. Equity in foreign joint ventures provided
income of $53,000 in 1995 compared with a loss of $16,000 in 1994. The 1995
amount includes income from Multi-Arc India Ltd. ("India") of $163,000 offset
by a loss from Multi-Arc's Singapore joint venture of $110,000. Earnings in
India are up as a result of increased demand for decorative products.
Income (loss) from continuing operations was $879,000 in 1995 compared
with $(771,000) in 1994.
Operating profits of Multi-Arc increased $1.4 million in 1995 which is
attributable to an increase in coating services operating revenues which
contributed $1.1 million in additional operating profits, principally from
Multi-Arc (UK) Ltd. The improved operating income in the coating services
business is the direct result of higher volume, slightly improved margins, and
lower depreciation expense. Operating profits from equipment sales rose
approximately $570,000 due to higher sales and consistent margins with the
prior year. Equity in earnings of foreign affiliates rose $69,000 over prior
year entirely due to improved results in India. Operating profit was
adversely effected by the lower royalty and commission income and increased
spending of $228,000 on research and development.
Selling, general, and administrative expenses rose $767,000 from the
prior year. Approximately $582,000 of the increase related to higher
personnel costs at Multi-Arc due to expansion of its selling and marketing
efforts. Multi-Arc's administrative costs also increased $421,000 due to
additional personnel, higher volume, and higher incentive compensation expense
related to higher profitability. Andal's general corporate expenses declined
$436,000 as the result of lower rent, depreciation, insurance, and legal
costs, principally related to the prior year's financial restructuring.
During 1995, the Company sold approximately 7.4% of its interest in
Multi-Arc to management, foreign licensees, and other investors for cash and
notes and recognized a gain of $348,000 on the transaction (see Note 4). In
addition to this gain, a gain of $396,000 related to the portion of this sale
to management has been deferred as the sales were financed by non-recourse
loans. Another $452,0000 of gain has been deferred relating to sales made to
foreign investors with deferred payment arrangements. The minority interest
in net income of Multi-Arc resulted in a first-time charge of $152,000 for
1995.
In November 1994, Multi-Arc India Ltd. completed an initial public
offering on the Bombay stock exchange which reduced Multi-Arc's interest in
India from 40% to 21%; and the Company recorded a pretax gain of $85,000 on
this transaction (see Note 5). Investment and other income increased to
$37,000 from a loss of $756,000 in 1994. The 1994 amount was adversely
impacted by the loss of $766,000 on the sale of a substantial portion of the
Company's interest in Integrated's stock (see Note 7).
Interest expense for 1995 was $1.8 million compared with $1.6 million in
1994. The increase was a function primarily of higher interest rates.
Although debt levels have increased from the prior year, such increase
principally occurred in the fourth quarter.
Operating revenues and operating income attributable to foreign
operations rose $1.0 million and $494,000, respectively, over 1994 principally
as a result of a substantial improvement in operations in the United Kingdom.
Effects of Inflation
Inflation has a minimal effect on Andal's operations.
Liquidity and Capital Resources
Cash decreased $298,000 during 1996 as cash provided by operating
activities of $2.4 million and financing activities of $277,000 was offset by
cash used in investing activities of $2.9 million. Operating cash flows
resulted primarily from the Company's income from continuing operations before
income taxes for the year ($5.9 million), net depreciation and amortization
($2.0 million), a write-down of the Company's investment in Integrated Brands,
Inc. ($143,000), and the gain on the sale of the 61st Street Property ($6.0
million). The cash flow from operations and the net cash flow from financing
activities which resulted primarily from the refinancing of and additional
borrowings under the Company's debt agreements with First Union National Bank
(see Note 12), were used principally to fund the Company's continued capital
expenditure program and its investments in foreign joint ventures. Such
expenditures and investments were approximately $3.6 million in 1996 and $3.2
million in 1995 and are expected to continue at a comparable level in 1997.
The Company had a working capital deficit of $2.3 million at September
30, 1996 as compared with a working capital deficit of $1.0 million at
September 30, 1995. The increase in the working capital deficit is due
principally to the reclassification of the outstanding obligation of the 5 1/2%
convertible debentures to current liabilities, as the debentures mature in
September 1997.
Pursuant to the loan agreement with First Union National Bank, the
amount of dividends and loans that may be made from Multi-Arc to Andal in 1997
is restricted to $300,000. In addition, the Company anticipates collections
on notes receivable of $300,000 and possible construction claims collections.
Due to the corporate restructuring associated with the Retirement Agreement
described in Note 3, the resulting reduction in costs associated with
maintenance of the Company's former New York office, and the reduction in
interest costs related to the retirement of shareholder debt, the cash
requirements of Andal for 1997 are not expected to exceed $425,000.
At September 30, 1996, the Company had $4.0 million in additional
borrowing capacity under Multi-Arc's Revolving Credit Facility. Based on
eligible receivables and inventories at that date, $2.1 million was available
to fund working capital requirements. Additionally, the Company has an unused
line of credit of $1.5 million which may be used for the purchase of new or
used equipment.
The Company believes that current financial resources, including the
available borrowing capacity under its various loan agreements and anticipated
funds from operations, will be adequate to meet cash requirements for capital
spending and debt repayments for fiscal 1997. The Company plans to continue
to use its revolving credit arrangement to finance interim working capital
needs in the coming year.
Item 8. Financial Statements and Supplementary Data
See Index to Financial Statements and Schedules at page 27 below.
Item 9. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure
Not applicable.
<PAGE>
PART III
Item 10. Directors and Executive Officers of the Company
The following table sets forth certain information regarding the
Directors and executive officers of the Company as of November 30, 1996.
Name Age Positions and Offices with the Company
Peter D. Flood 53 Chairman of the Board of Directors, Chief
Executive Officer, and President
Walter N. Kreil, Jr. 49 Senior Vice President, Chief Financial Officer,
and Director
Andrew J. Frankel 64 Director
Alan N. Cohen 65 Director
The Company's Directors are elected annually and hold office until their
successors are elected and qualified.
Peter D. Flood has been Chairman of the Board, Chief Executive Officer,
and President of the Company since September 1996, a Director of the Company
since December 1985, and the Chief Executive Officer of Multi-Arc since March
1981.
Walter N. Kreil, Jr. was appointed a Director and elected Senior Vice
President and Chief Financial Officer of the Company in September 1996. Mr.
Kreil served as Vice President of the Company from September 1987 through
August 1996 and serves as Vice President and Chief Financial Officer of Multi-
Arc. Mr. Kreil joined the Company as Assistant Vice President and Controller
in June 1984.
Andrew J. Frankel has been a Director of the Company since 1971 and
served as Chairman of the Board of Directors and Chief Executive Officer of
the Company from 1971 through August 1996.
Alan N. Cohen has been a Director of the Company since October 1979 and
served as President of the Company from October 1981 through August 1996.
Between January 1981 and October 1981, Mr. Cohen served as Vice Chairman of
the Board of the Company. Mr. Cohen was a member of the Board of Directors of
Integrated Brands, Inc. from December 1985 until June 1993. From December
1986 until September 1993, Mr. Cohen was Vice Chairman of the Board and
Treasurer of Celtics, Inc., the general partner of Boston Celtics Limited
Partnership.
<PAGE>
Item 11. Executive Compensation
The following table sets forth information concerning the compensation
for the past three fiscal years of the Chief Executive Officer of the Company
and all other executive officers whose annual salary exceeded $100,000 for the
year ended September 30, 1996.
SUMMARY COMPENSATION TABLE
Annual Compensation Long All Other
----------------------------- Term Compensation
Name and Other Annual Options/ ($)
Principal Salary Bonuses Compensation SARs (401K Plan
Position Year ($) ($) (1) (#) Contributions)
- ------------ ---- ------ ------- ------------ -------- --------------
Andrew J. 1996 157,000 0 42,739 0 0
Frankel
Chief Executive 1995 244,000 0 33,333 0 0
Officer through
August 1996 1994 144,000 0 27,858 0 0
Alan N. Cohen 1996 157,000 0 16,000 0 0
President
through August 1995 244,000 0 16,000 0 0
1996
1994 144,000 0 13,720 0 0
Peter D. Flood 1996 250,000 138,000 (2) 0 4,750
Chief Executive
Officer and 1995 250,000 151,000 (2) 2,500 (3) 4,620
President from
September 1996 1994 250,000 85,000 (2) 0 4,620
and Chief
Executive of
Multi-Arc
Walter N. Kreil, Jr.1996 142,000 35,000 (2) 0 4,750
Senior Vice
President and 1995 135,200 50,000 (2) 500 (3) 4,620
Chief Financial
Officer since 1994 132,600 24,000 (2) 0 4,620
September 1996
and Chief
Financial
Officer of
Multi-Arc
No other bonuses, restricted stock awards, long term incentive plan
payouts, or other compensation was awarded or paid to the named executives
during the periods indicated.
(1) Other Annual Compensation includes professional services and
supplemental life and medical insurance, as follows:
Andrew J. Frankel Alan N. Cohen
Professional Supplemental Professional
Services Insurance Services
1996 10,000 10,494 10,000
1995 10,000 5,194 10,000
1994 10,000 4,007 10,000
(2) Amounts were less than 10% of salary.
(3) Options to acquire common stock of Multi-Arc Inc. at $205.13 per
share.
Stock Options
No stock options or stock appreciation rights were granted by the
Company during the fiscal year ended September 30, 1996 to the Chief Executive
Officer of the Company and all other executive officers whose annual salary
exceeded $100,000 for the fiscal year ended September 30, 1996.
The following table sets forth information with respect to the exercise
during fiscal 1996 and the value as of September 30, 1996 of unexercised stock
options and stock appreciation rights for the Chief Executive Officer and all
other executive officers whose annual salary exceeded $100,000 for the fiscal
year ended September 30, 1996.
AGGREGATED OPTION/SAR EXERCISES IN LAST FISCAL YEAR AND FISCAL YEAR END
OPTION/SAR VALUES
Value of
Number of Unexercised
Unexercised In-the-Money
Shares Options/SARs at Options/SARs at
Acquired on Fiscal Year End Fiscal Year End
Exercise Value (#) Exercisable/ ($) Exercisable/
Name (#) Realized($) Unexercisable Unexercisable
Andrew J. 0 0 0/0 0/0
Frankel
Alan N. Cohen 0 0 0/0 0/0
Peter D. Flood 0 0 0/5,000(1) 0/0
500/2,500(2) 0/0
Walter N. Kreil,0 0 0/750(1) 0/0
Jr. 100/500(2) 0/0
The Company does not have a long term incentive compensation plan for
its executives.
(1) Options on Andal Corp. common stock.
(2) Options on Multi-Arc Inc. common stock.
Pension Plan
Messrs. Frankel and Cohen were members of a noncontributory pension plan
of the Company which was terminated effective January 1, 1985. Upon the
termination of the plan, the Company purchased straight life annuity policies
sufficient to pay each of the individuals upon their retirement at normal
retirement age the benefits they had accrued under the plan up to January 1,
1985. The amounts payable annually at normal retirement of each of these
persons are as follows:
Annual Benefit upon
Name Retirement
Andrew J. Frankel $61,402
Alan N. Cohen 36,988
Compensation of Directors
Directors who are not employed by Andal are entitled to fees of $5,000
per annum plus $250 for each meeting of the Board they attend and $250 for
each meeting of a committee of the Board they attend which is held on a day
that the Board does not meet. Directors are reimbursed for travel expenses
incurred in attending Board and Committee meetings.
Employment Agreements
Mr. Flood is employed by the Company as President and Chief Executive
Officer under an employment agreement effective as of August 31, 1996 and
expiring on September 30, 2001 under which he is entitled to receive a base
salary of $250,000 per year plus incentive compensation equal to 5% of the
annual pretax income of Multi-Arc. The Agreement further provides for a
signing bonus of $250,000, payable $50,000 on or before November 30, 1996 and
the balance as soon as possible thereafter, depending on the sufficiency of
the Company's cash flow. In addition, pursuant to the Agreement, Mr. Flood
was awarded 7,500 shares of the Company's common stock.
Mr. Kreil is employed by the Company as Senior Vice President and Chief
Financial Officer under an employment agreement effective as of August 31,
1996 and expiring on September 30, 2001 under which he is entitled to receive
an initial base salary of $149,350 per year plus participation in the Multi-Arc
Corporate Incentive Compensation Plan. The Agreement further provides for
a signing bonus of $50,000, payable $10,000 on or before November 30, 1996 and
the balance thereafter, depending on the sufficiency of the Company's cash
flow. The Multi-Arc Corporate Management Incentive Plan provides for a bonus
pool to be divided proportionally, based on normal compensation, among three
of Multi-Arc's senior executives (other than Mr. Flood). The pool is
calculated at 1 1/2% of earnings before interest and taxes up to $1.0 million,
plus 2% of such earnings between $1.0 and 2.0 million, plus 2 1/2% of such
earnings over $2.0 million. In 1996 Mr. Kreil received a bonus of $35,000 in
accordance with the Plan.
Repricing of Options/SARs
No stock options previously granted to the Company's executive officers
were repriced during the fiscal year ended September 30, 1996.
Additional Information with Respect to Compensation Committee Interlocks and
Insider Participation in Compensation Decisions
The Company's Compensation Committee is comprised of Messrs. Frankel and
Cohen. See "Security Ownership of Certain Beneficial Owners and Management"
and "Certain Relationships and Related Transactions" for information with
respect to transactions between these individuals and the Company and the
percentage ownership of the Company by them.
BOARD COMPENSATION COMMITTEE REPORT ON EXECUTIVE COMPENSATION
Messrs. Frankel and Cohen comprise the Compensation Committee and were
also, until August 31, 1996, Chief Executive Officer and President of the
Company, respectively. On August 27, 1996, they submitted the following
report:
Upon effect of the retirement of Messrs. Frankel and Cohen,
the Compensation Committee approved the employment of Peter D.
Flood as Chairman of the Board, Chief Executive Officer, and
President of Andal and Walter N. Kreil, Jr. as Senior Vice
President and Chief Financial Officer, in accordance with their
respective proposed Employment Agreements to be effective August
31, 1996.
Respectfully submitted,
Andrew J. Frankel
Alan N. Cohen
See Item 11, "Employment Agreements," for a description of the
Employment Agreements entered into with Messrs. Flood and Kreil.
PERFORMANCE GRAPH
The following line graph compares the cumulative total return of the
Company's common stock to the American Stock Exchange Market Value and
Industrial Service Company Indices for the period October 1, 1991 to September
30, 1996.
CUMULATIVE TOTAL RETURN
Andal Shares vs. Amex Indices
Measurement Period Andal Invested AMEX MV Invested AMEX Ind. Invested
9/30/91 $100.00 $100.00 $100.00
9/30/92 5.68 124.89 96.72
9/30/93 0.00 152.63 138.39
9/30/94 1.82 152.11 127.39
9/30/95 2.05 180.59 156.55
9/30/96 0.00 189.49 141.34
Assumes $100 invested on September 30, 1991 in Andal Corp. Common Stock, the
Amex Market Value Index and the Amex Industrial Service Company Index.
Item 12. Security Ownership of Certain Beneficial Owners and Management
The following table sets forth information as of November 30, 1996, with
respect to all shareholders known by Andal to be the beneficial owners of more
than 5% of its outstanding common stock, each director, and all officers and
directors as a group.
<PAGE>
Name and Address of Amount and Nature of Percent
Beneficial Owner Beneficial Ownership of Class
Frankhill Associates 124,715 shares (1) (10) 27.9%
909 Third Avenue
Ninth Floor
New York, NY 10022
Andrew J. Frankel 1,730 (1)
909 Third Avenue 124,715 (2) (10)
Ninth Floor 2,019 (3)
New York, NY 10022 534 (4)
-------
128,998 shares 28.8%
Alan N. Cohen Family 47,500 shares 10.6%
Company LLC
909 Third Avenue
Ninth Floor
New York, NY 10022
Alan N. Cohen 47,500 (11)
909 Third Avenue 27,990 (1) (10)
Ninth Floor 4,250 (5)
New York, NY 10022 ------
79,740 shares 17.8%
Peter D. Flood 11,664 shares (1) (12) 2.6%
c/o Multi-Arc Inc.
200 Roundhill Drive
Rockaway, NJ 07866
Builtland Partners 63,294 shares (1) (6) 14.1%
c/o Milstein Properties
1271 Avenue of the Americas
New York, NY 10020
Paul Milstein 99,337 shares (7) (8) 22.2%
c/o Milstein Properties
1271 Avenue of the Americas
New York, NY 10020
All officers and directors
as a group (4 persons) 222,151 shares (10) 49.6%
(1) Direct record and beneficial ownership.
(2) As a general partner of, or person designated to exercise voting power
or investment power on behalf of, Frankhill Associates, the record
holder of these shares.
(3) Held as co-trustee with his sister, with whom Mr. Frankel shares voting
power. Mr. Frankel and his children have an interest in one-half of the
principal and income of the trust.
(4) Held as co-trustee with his wife of trusts for Mr. Frankel's three
children.
(5) Includes 4,250 shares held by a not-for-profit corporation of which Mr.
Cohen is an officer and director. Mr. Cohen disclaims beneficial
ownership of such shares owned by the Corporation.
(6) Builtland Partners is a New York General Partnership comprised of
Seymour Milstein, Paul Milstein, and members of their respective
families.
(7) Includes all the shares owned by Builtland Partners, as well as shares
wholly beneficially owned by Paul Milstein, directly and indirectly.
(8) Includes 4,845 shares owned by Milstein Family Foundation, Inc., a New
York not-for-profit corporation of which Mr. Milstein is president and a
director. Mr. Milstein disclaims any beneficial interest in such
shares.
(9) Not used.
(10) Includes 278 shares issuable upon conversion of debentures.
(11) As manager of the Alan N. Cohen Family Company, LLC, the record holder
of these shares.
(12) Includes 250 shares held jointly with Mr. Flood's wife.
Item 13. Certain Relationships and Related Transactions
See Item 1. Business--Other--Purchase and sale of the UBC Property for
a discussion of the fiscal 1996 developments concerning the UBC Property and
the sale of the UBC Property in satisfaction of the UBC Loan.
See Item 1. Business--Other--Management Changes and Relocation of
Executive Office for a discussion of the August 31, 1996 retirement agreement
between the Company and Andrew J. Frankel and Alan N. Cohen.
See Item 1. Business--Other--Retirement of Fleet Indebtedness for a
discussion of the retirement of subject indebtedness in exchange for common
stock. As of September 30, 1996, Peter D. Flood owned $96,000 principal
amount of the Fleet Indebtedness. Pursuant to the employment agreement
between the Company and Mr. Flood, the Company has agreed to repay the
indebtedness, plus interest at 8% per annum, as soon as the cash flow of the
Company, in the reasonable discretion of the Board of Directors, permits. See
Item 10--Directors and Executive Officers of the Company--Employment
Agreement.
In December 1994, Andal sold, for $500,000, approximately 2 1/2% of the
common stock of Multi-Arc to Multi-Arc's management; and Multi-Arc issued
$500,000 of convertible subordinated debentures (convertible into 2% of Multi-
Arc common stock) to such management. Both the sale of the common stock and
the issuance of the debentures were funded through non-recourse loans made to
its management by Multi-Arc using Multi-Arc's revolving credit facility with
First Union National Bank. The management loans included $500,000 and
$100,000, respectively, to Peter D. Flood and Walter N. Kreil, Jr. These
loans bear interest at 8.35% and are repayable on December 15, 2004, or upon
termination of employment. The loans are secured by common stock and
debentures of Multi-Arc. The Notes evidencing these loans are pledged by
Multi-Arc to First Union National Bank.
<PAGE>
PART IV
Item 14. Exhibits, Financial Statement Schedules, and Reports on Form 8-K
(a)(1) Financial Statements
See Index to Financial Statements and Schedules at page 27 below.
(a)(2) Financial Statement Schedules
See Index to Financial Statements and Schedules at page 27 below.
(b) Reports on Form 8-K
The Company filed a report on Form 8-K on August 30, 1996 to
report management changes, the relocation of its executive
offices, and the refinancing of Multi-Arc's indebtedness to its
principal bank lender.
(c) Exhibits
The following exhibits are filed herewith unless otherwise indicated:
3(a) Restated Certificate of Incorporation of the Company as filed with
the Secretary of State of New York on March 16, 1972 (the
"Certificate of Incorporation") (incorporated by reference to
Exhibit 3(a) to Company's Annual Report on Form 10-K for fiscal
year ended September 30, 1986).
3(b) Certificate of Amendment of the Certificate of Incorporation as
filed with the Secretary of State of New York on November 5, 1979
(incorporated by reference to Exhibit 3(b) to Company's Annual
Report on Form 10-K for fiscal year ended September 30, 1986).
3(c) Certificate of Amendment of the Certificate of Incorporation as
filed with the Secretary of State of New York on October 22, 1981
(incorporated by reference to Exhibit 3(c) to Company's Annual
Report on Form 10-K for fiscal year ended September 30, 1986).
3(d) Certificate of Amendment of the Certificate of Incorporation as
filed with the Secretary of State of New York on November 7, 1983
(incorporated by reference to Exhibit 3(d) to Company's Annual
Report on Form 10-K for fiscal year ended September 30, 1986).
3(e) Certificate of Amendment of the Certificate of Incorporation as
filed with the Secretary of State of New York on April 8, 1987
(incorporated by reference to Exhibit 4.5 to Company's
Registration Statement on Form S-8 as filed with the Securities
and Exchange Commission on May 5, 1987).
3(f) Certificate of Amendment of the Certificate of Incorporation as
filed with the Secretary of State of New York on June 15, 1993
(incorporated by reference to Exhibit 3(f) to Company's Annual
Report on Form 10-K for Fiscal Year ended September 30, 1993).
3(g) By-laws of the Company (incorporated by reference to Exhibit 4.6
to Company's Registration Statement on Form S-8 as filed with the
Securities and Exchange Commission on May 5, 1987).
4(a) Indenture dated as of September 15, 1972 between the Company and
Manufacturers Hanover Trust Company, as Trustee, relating to the
Company's 5 1/2% convertible subordinated debentures due September
15, 1997 (incorporated by reference to Exhibit 4(a) to Company's
Annual Report on Form 10-K for fiscal year ended September 30,
1986).
4(b) First Supplemental Indenture dated as of January 12, 1982 between
the Company and United States Trust Company of New York, as
Trustee, relating to the Company's 5 1/2% convertible subordinated
debentures due September 15, 1997 (incorporated by reference to
Exhibit 4(b) to Company's Annual Report on Form 10-K for fiscal
year ended September 30, 1986).
10(a)1987 Stock Option Plan of the Company (incorporated by reference
to Exhibit 10(c) to the Company's Annual Report on Form 10-K for
fiscal year ended September 30, 1987).
10(b)Option Agreement dated as of August 1, 1982 between Schnurmacher
Corp. and the Company (incorporated by reference to Exhibit 10(v)
to Company's Annual Report on Form 10-K for fiscal year ended
September 30, 1986).
10(c)Lease dated May 11, 1988, containing an Option to Purchase,
between Roundhill Associates and the Company (incorporated by
reference to Exhibit 10(ag) to Company's Annual Report on Form 10-K
for fiscal year ended September 30, 1988).
10(d)Subordination Agreement dated September 30, 1994 of Multi-Arc Inc.
as debtor and Andal Corp. as subordinated lender in favor of First
Fidelity Bank, N.A. (incorporated by reference to Exhibit 10(l) to
the Company's Annual Report on Form 10-K for the year ended
September 30, 1994).
10(e)Security Agreement dated September 30, 1994 by and between First
Fidelity Bank, N.A. and Vagle Technology, Inc., Multi-Arc, Inc. (a
Minnesota corporation), Multi-Arc Inc., Multi-Arc of Ohio, Inc.,
and S. C. I. Coatings Limited (incorporated by reference to
Exhibit 10(m) to the Company's Annual Report on Form 10-K for the
year ended September 30, 1994).
10(f)Multi-Arc Inc., Andal Corp., and United States Trust Company of
New York, Trustee. Second Supplemental Indenture dated as of
September 30, 1994 5 1/2% Convertible Subordinated Debentures due
1997 (incorporated by reference to Exhibit 10(o) to the Company's
Annual Report on Form 10-K for the year ended September 30, 1994).
10(g)Pledge and Security Agreement dated September 30, 1994 by and
among Andal Corp. and First Fidelity Bank, N.A. (incorporated by
reference to Exhibit 10(p) to the Company's Annual Report on Form
10-K for the year ended September 30, 1994).
10(h)Form of Multi-Arc Inc. 6% Convertible Subordinated Debenture due
December 15, 2004 (incorporated by reference to Exhibit 10(p) to
the Company's Annual Report on Form 10-K for the year ended
September 30, 1995).
10(i)Form of Multi-Arc Inc. Stockholders Agreement dated June 15, 1995
(incorporated by reference to Exhibit 10(q) to the Company's
Annual Report on Form 10-K for the year ended September 30, 1995).
10(j)1994 Multi-Arc Inc. Stock Option Plan (incorporated by reference
to Exhibit 10(r) to the Company's Annual Report on Form 10-K for
the year ended September 30, 1995).
10(k)Loan Agreement dated September 21, 1995 between First Fidelity
Bank N. A. and Multi-Arc (UK) Ltd. (incorporated by reference to
Exhibit 10(s) to the Company's Annual Report on Form 10-K for the
year ended September 30, 1995).
10(l)Overdraft Facility Agreement between First Fidelity Bank N. A. and
Multi-Arc (UK) Ltd. dated September 21, 1995 (incorporated by
reference to Exhibit 10(t) to the Company's Annual Report on Form
10-K for the year ended September 30, 1995).
10(m)61st Street Option Exercise (incorporated by reference to Exhibit
10(u) to the Company's Annual Report on Form 10-K for the year
ended September 30, 1995).
10(n)Contract of Sale of 61st Street Property dated July 10, 1996
(incorporated by reference to Exhibit 10(r) to the Company's
Quarterly Report on Form 10-Q for the quarterly period ended June
30, 1996.
10(o)Retirement Agreement between Andal Corp. and Andrew J. Frankel and
Alan N. Cohen dated August 31, 1996 (incorporated by reference to
Exhibit 10(a) to the Company's Current Report on Form 8-K dated
August 30, 1996).
10(p)Employment Agreement between Andal Corp. and Peter D. Flood dated
as of August 31, 1996 (incorporated by reference to Exhibit 10(b)
to the Company's Current Report on Form 8-K dated August 30,
1996).
10(q)Consolidated, Modified, and Restated Loan and Security Agreement,
dated August 27, 1996 by and between First Union National Bank and
Multi-Arc Inc., a Delaware Corporation; Multi-Arc, Inc., a
Minnesota Corporation; Vagle Technology, Inc., a Michigan
Corporation; Multi-Arc of Ohio, Inc., an Ohio Corporation;
Scientific Coatings of Illinois, Inc., a Michigan Corporation;
Scientific Coatings, Inc., a Michigan Corporation; and SCI
Coatings Southwest, Inc., a Texas Corporation.
10(r)Employment Agreement between Andal Corp. and Walter N. Kreil, Jr.
dated as of August 31, 1996.
22 Significant Subsidiaries of the Company
24(a)Consent of Kelly, Graham, Myska & Partners.
24(b)Consent of KPMG Peat Marwick.
27 Financial Data Schedule
<PAGE>
Index to Financial Statements and Schedules
Financial Statements Page
Report of Independent Auditors on Financial Statements and Schedules 29
Consolidated Balance Sheet--September 30, 1996 and September 30, 1995 F-1
Consolidated Statement of Operations--Years ended September 30, 1996,
1995, and 1994 F-2
Consolidated Statement of Shareholders' Equity (Deficit)
--Years Ended September 30, 1996, 1995, and 1994 F-3
Consolidated Statement of Cash Flows--Years Ended September 30, 1996,
1995, and 1994 F-4
Notes to Consolidated Financial Statements F-6
Condensed Balance Sheet (Parent Company Only)--September 30, 1996
and September 30, 1995 S-1
Condensed Statement of Operations (Parent Company Only)--Years ended
September 30, 1996, 1995, and 1994 S-2
Condensed Statement of Cash Flows (Parent Company Only)--Years ended
September 30, 1996, 1995, and 1994 S-3
Notes to Condensed Financial Statements (Parent Company Only) S-4
All other schedules are omitted because they are not applicable, not
required, or the other information required to be set forth therein is
included in the Consolidated Financial Statements or in the Notes thereto.
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 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.
ANDAL CORP.
(Registrant)
By /s/ Peter D. Flood
Peter D. Flood
Chairman of the Board of Directors
Dated: January 30, 1997
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
Signatures Title Date
Principal Executive Officer:
/s/ Peter D. Flood Chairman of the Board of January 30, 1997
(Peter D. Flood) Directors, Chief Executive
Officer, President, and
Director
Principal Financial Officer:
/s/ Walter N. Kreil, Jr. Senior Vice President, January 30, 1997
(Walter N. Kreil, Jr.) Chief Financial Officer,
and Director
Directors:
/s/ Andrew J. Frankel Director January 30, 1997
(Andrew J. Frankel)
/s/ Alan N. Cohen Director January 30, 1997
(Alan N. Cohen)
<PAGE>
REPORT OF INDEPENDENT AUDITORS
Board of Directors and Shareholders
Andal Corp.
We have audited the accompanying consolidated balance sheets of Andal Corp.
and subsidiaries as of September 30, 1996 and 1995, and the related
consolidated statements of operations, shareholders' equity (deficit) and cash
flows or each of the three years in the period ended September 30, 1996. Our
audits also included the financial statement schedule listed in the Index at
Item 14 (a) (2). These financial statements and schedule are the
responsibility of the Company's management. Our responsibility is to express
an opinion on these financial statements and schedule based on our audits. We
did not audit the financial statements of certain consolidated subsidiaries,
which statements reflect total revenues constituting 16% in 1994 of the
related consolidated totals. Those statements were audited by other auditors
whose reports have been furnished to us and our opinion, insofar as it relates
to the amounts included for such subsidiaries, is based solely on the reports
of other auditors.
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 and the reports of other
auditors provide a reasonable basis for our opinion.
In our opinion, based on our audits and the reports of other auditors, the
consolidated financial statements referred to above present fairly, in all
material respects, the consolidated financial position of Andal Corp. and
subsidiaries at September 30, 1996 and 1995, and the consolidated results of
their operations and their cash flows for each of the three years in the
period ended September 30, 1996, in conformity with generally accepted
accounting principles. Also, in our opinion, the related financial statement
schedule, when considered in relation to the basic financial statements taken
as a whole, presents fairly in all material respects the information set forth
therein.
As described in Note 17, in 1994 the Company changed its method of accounting
for income taxes.
/s/ Ernst & Young LLP
Ernst & Young LLP
New York, New York
January 29, 1997
<PAGE>
ANDAL CORP. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEET
ASSETS
September 30,
1996 1995
Current assets:
Cash $ 552,000 $ 850,000
Accounts receivable 5,252,000 4,998,000
Inventories 1,553,000 1,073,000
Prepaid expenses 341,000 307,000
Other current assets 516,000 906,000
------------- -------------
Total current assets 8,214,000 8,134,000
Investments in affiliates 1,621,000 1,661,000
Property and equipment 12,278,000 10,789,000
Loans due from Multi-Arc Inc. management 1,000,000 1,000,000
Deferred taxes 2,400,000 0
Other assets 1,683,000 2,041,000
------------- -------------
$ 27,196,000 $ 23,625,000
LIABILITIES AND SHAREHOLDERS' EQUITY (DEFICIT)
Current liabilities:
Short term borrowings, including
current portion of long term debt $ 1,338,000 $ 1,206,000
Current portion of convertible
debentures 1,825,000 0
Current portion of debt due
shareholders 96,000 1,250,000
Accounts payable 1,667,000 1,606,000
Other accrued expenses 5,619,000 5,106,000
------------- -------------
Total current liabilities 10,545,000 9,168,000
Long-term debt 8,671,000 7,886,000
Debt due shareholders 0 6,364,000
Other deferred income 925,000 1,430,000
Convertible subordinated debentures 1,510,000 3,335,000
Minority interest in Multi-Arc Inc. 690,000 540,000
Shareholders' equity (deficit):
Common shares, par value $20 per share,
1,500,000 authorized;
447,359 issued in 1996
and 370,496 issued in 1995 8,947,000 7,410,000
Paid-in-capital 25,995,000 31,625,000
Deficit (30,087,000) (38,472,000)
Less 40,637 common shares
held in treasury in 1995, at cost 0 (5,661,000)
------------- -------------
Total shareholders' equity
(deficit) 4,855,000 (5,098,000)
------------- -------------
$ 27,196,000 $ 23,625,000
See accompanying notes.
<PAGE>
ANDAL CORP. AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF OPERATIONS
Year Ended September 30,
1996 1995 1994
Operating revenues: $31,065,000 $30,015,000 $26,672,000
Royalties and commissions 446,000 315,000 421,000
Equity in net income (loss) of
foreign joint ventures 104,000 53,000 (16,000)
------------ ------------ ------------
31,615,000 30,383,000 27,077,000
Operating costs and expenses:
Cost of revenues 15,740,000 15,545,000 13,466,000
Depreciation expense 2,099,000 1,907,000 2,234,000
Selling, general and
administrative expenses 12,141,000 10,517,000 9,750,000
------------ ------------ ------------
29,980,000 27,969,000 25,450,000
Income from operations 1,635,000 2,414,000 1,627,000
Other income (expense):
Gain on sale of 61st street
property 6,009,000 0 0
Gain on sale of minority interest
in Multi-Arc Inc. 0 348,000 0
Minority interest in net income
of Multi-Arc Inc. (151,000) (152,000) 0
Gain from initial public offering of
Multi-Arc India Ltd. 0 85,000 0
Investment and other income, net 150,000 37,000 (756,000)
Interest expense (1,734,000) (1,799,000) (1,625,000)
------------ ------------ ------------
4,274,000 (1,481,000) (2,381,000)
Income (loss) from continuing
operations before income taxes 5,909,000 933,000 (754,000)
Benefit (provision) for income taxes 2,242,000 (54,000) (17,000)
------------ ------------ ------------
Income (loss) from continuing
operations 8,151,000 879,000 (771,000)
Income (loss) from discontinued
operations 234,000 1,007,000 (350,000)
------------ ------------ ------------
Net income (loss) $ 8,385,000 $ 1,886,000 $(1,121,000)
Income (loss) per common share:
Income (loss) from continuing
operations $24.00 $2.67 $(2.34)
Income (loss) from discontinued
operations .69 3.05 (1.06)
------ ----- -------
Net income (loss) $24.69 $5.72 $(3.40)
See accompanying notes.
<PAGE>
ANDAL CORP. AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF SHAREHOLDERS' EQUITY (DEFICIT)
Retained
Common Paid-in- Earnings Treasury
Stock Capital (Deficit) Stock Total
Balance at
Sept. 30, 1993 $7,410,000 $31,625,000 $(39,237,000) $(5,661,000) $(5,863,000)
Net loss for
1994 0 0 (1,121,000) 0 (1,121,000)
Balance at
Sept. 30, 1994 7,410,000 31,625,000 (40,358,000) (5,661,000) (6,984,000)
Net income for
1995 0 0 1,886,000 0 1,886,000
Balance at
Sept. 30, 1995 7,410,000 31,625,000 (38,472,000) (5,661,000) (5,098,000)
Net income for
1996 0 0 8,385,000 0 8,385,000
Shares issued
pursuant to
retirement
agreement 1,300,000 (1,153,000) 0 0 147,000
Shares issued
pursuant to
retirement of debt 900,000 504,000 0 0 1,404,000
Shares issued
pursuant to
employment
agreement 150,000 (133,000) 0 0 17,000
Issuance of
Treasury Stock
in connection
with above
transactions (813,000) (4,848,000) 0 5,661,000 0
Balance at
Sept. 30, 1996 $8,947,000 $25,995,000 $(30,087,000) $0 $4,855,000
See accompanying notes.
<PAGE>
ANDAL CORP. AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF CASH FLOWS
Year Ended September 30,
1996 1995 1994
Cash provided (used) by operations:
Income (loss) from continuing
operations before income taxes $5,909,000 $ 933,000 $(754,000)
Adjustments to reconcile income
(loss) from continuing operations
to net cash provided by operations
Depreciation 2,099,000 1,907,000 2,234,000
Gain on sale of minority
interest in Multi-Arc Inc. 0 (348,000) 0
Minority interest in net
income of Multi-Arc Inc. 151,000 152,000 0
Amortization of patents,
trademarks, and license rights 224,000 192,000 186,000
Equity in net (income) loss
of foreign joint ventures (104,000) (53,000) 16,000
Write down of investment in
Integrated 143,000 0 0
Deferred income accrued 0 64,000 40,000
Amortization of deferred income (303,000) (149,000) (95,000)
Provision (credit) for bad debts (3,000) (16,000) 42,000
Gain on sale of 61st Street
property (6,009,000) 0 0
Losses on investment transactions 0 0 766,000
Gain from initial public offering of
Multi-Arc India Ltd. 0 (85,000) 0
Other, net 59,000 28,000 39,000
Change in operating assets and
liabilities:
Decrease (increase) in accounts
receivable 55,000 (954,000) 1,127,000
(Increase) decrease in inventories(542,000) 200,000 (459,000)
Decrease in other current assets 50,000 76,000 60,000
Increase in accounts payable
and accrued liabilities 546,000 369,000 634,000
Cash provided (used) by
discontinued operations 170,000 (168,000) (247,000)
Income taxes paid (78,000) (87,000) (34,000)
----------- ----------- -----------
Net cash provided by
operating activities 2,367,000 2,061,000 3,555,000
<PAGE>
ANDAL CORP. AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF CASH FLOWS (Continued)
1996 1995 1994
Cash flows from financing activities:
Proceeds from long-term debt 8,000,000 3,870,000 6,162,000
Loans to Multi-Arc management 0 (1,000,000) 0
Proceeds from sale of common stock
and debentures of Multi-Arc Inc. 0 1,714,000 0
Deferred financing costs (97,000) (126,000) 0
Reductions of long-term debt (6,758,000) (3,024,000) (7,743,000)
Decrease in debt due within one year (868,000) (631,000) (398,000)
----------- ----------- -----------
Net cash provided (used) by
financing activities 277,000 803,000 (1,979,000)
Cash flows from investing activities:
Net proceeds from sale of
61st Street property 529,000 0 0
Reduction of (investment in)
affiliated companies 0 (211,000) 1,459,000
Gross additions to property
and equipment (3,649,000) (2,964,000) (1,999,000)
Other, net 178,000 18,000 (370,000)
----------- ----------- -----------
Net cash (used) by
investing activities (2,942,000) (3,157,000) (910,000)
(Decrease) increase in cash (298,000) (293,000) 666,000
Cash at beginning of year 850,000 1,143,000 477,000
----------- ----------- -----------
Cash at end of year $ 552,000 $ 850,000 $1,143,000
See accompanying notes.
<PAGE>
ANDAL CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Principles of Consolidation
The consolidated financial statements include the accounts of Andal
Corp. and its subsidiaries. Andal's only operating business is Multi-Arc Inc.
("Multi-Arc") a majority-owned subsidiary engaged in the business of surface
enhancement. All significant intercompany transactions and accounts are
eliminated in consolidation. Foreign affiliates in which Multi-Arc owns 20%
to 50% are accounted for using the equity method.
Inventories
Inventories are stated at lower of cost (determined principally by the
first-in, first-out method) or market.
Property and Equipment
Property and equipment are recorded at cost and depreciated over
estimated useful lives on a straight-line basis.
Revenue and Deferred Income
Revenue is recognized when it is earned. In the case of Multi-Arc
system sales, the point for revenue recognition normally corresponds to the
date when the system is shipped to the customer. To the extent the Company
sells coating systems or license rights to its joint ventures, a proportionate
percentage of the profit on these is deferred and subsequently amortized into
revenue. Such amortization offsets the related depreciation or license rights
expense recorded by the corresponding joint venture company.
Stock Based Compensation
The Company accounts for its stock based compensation arrangements under
the provisions of APB 25, "Accounting for Stock Issued to Employees," and
intends to continue to do so.
Research and Development Expenses
Research and development expenditures ($1,426,000 in 1996, $1,628,000 in
1995, and $1,400,000 in 1994) are charged to cost of revenues as incurred.
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.
Income (Loss) per Share
Primary income (loss) per common share for all periods was computed
based on the average number of shares outstanding during each of the
respective periods. Fully diluted per share amounts are not shown for the
periods, as the effects would be anti-dilutive.
The average number of shares used in computing primary income (loss) per
share was 339,639 in 1996, and 329,859 in each of 1995 and 1994.
2. PURCHASE AND SALE OF THE UBC PROPERTY
Prior to May 8, 1996, the Company, directly or through a wholly-owned
subsidiary, UBC Virginia Corp. ("UBC Corp.) had owned an option (the "Option")
to purchase a parcel of real estate (the "Property") located on 61st Street
and First Avenue in New York City, which Option had been carried on the books
of the Company at nil value for many years. The original cost of the Option
was $1.5 million. UBC Corp. was merged into the Company in March 1996, after
which time the Option became directly owned by the Company.
In 1990, the Option was pledged as security for a $5 million loan,
hereafter referred to as the "Option Loan," made to the Company by Alan N.
Cohen, who was then President and a Director of the Company, Paul Milstein,
who was then a Director of the Company, and Frankhill Associates, a limited
partnership of which Andrew J. Frankel, who was then Chairman of the Board and
a Director of the Company, is a general partner (collectively, in such
capacity, the "Option Lenders").
The Option granted the Company the right to purchase the Property for
approximately $3 million in cash and was exercisable only after the death of
the later to die of two of the principals of the corporation that granted the
Option. Such death occurred in 1995. The Company did not have the cash
required to exercise the Option, and it could not raise it through borrowing
from unrelated parties or through the sale of assets other than the Option.
However, under the terms of the Option Loan, the Company was obligated to
exercise the Option. Accordingly, the Option was exercised in October 1995;
and the Company purchased the Property on May 8, 1996. In order to make the
purchase, on May 7, 1996, the Company borrowed $3.3 million (the "Demand
Loan") from the Option Lenders evidenced by a demand note and secured by a
mortgage on the Property. The Demand Loan bore interest at 10% per annum.
The Company's failure to exercise the Option and pay the purchase price
for the Property would have resulted in an event of default under the Option
Loan, which would have given the Option Lenders the right to exercise the
Option on the Company's behalf and to declare the Option Loan immediately due
and payable, including all sums advanced by the Option Lenders in exercising
the Option. In addition, the Option Lenders would have had all of the
remedies available to them under applicable law for secured lenders,
including, without limitation, the public or private sale of the Property
acquired by exercise of the Option.
Until January 1995, the Company had been under contract to sell the
Option to an unrelated real estate developer, who had contracted to purchase
the Option in 1984. The developer was unable to obtain financing to
consummate the purchase; and, as a result, the Company terminated the
contract. Upon termination of the contract, the Company attempted to sell the
Option to various other parties. In addition, after the Company received the
Option Notice from the Optionor, the Company made contact with several brokers
who were not able to identify a buyer. The Company's attempts to sell the
Option did not result in any bona fide offer from a third party to purchase
the Option.
Once it was learned that the Option had become exercisable, the Option
Lenders expressed an interest in acquiring the Property in satisfaction of the
amount outstanding on the Option Loan. In that event, the Company would no
longer have been obligated with respect to the $3 million purchase price
obligation due on the Option exercise.
The Board of Directors of the Company met on October 5, 1995 to discuss
the difficulties entailed in the Company's exercise of the Option, including
the Company's lack of cash flow, diminished borrowing power, debt structure,
and difficulties in raising funds through a private placement of Multi-Arc's
common stock and subordinated debentures. After discussion, the Board members
who were not Option Lenders (Messrs. Flood and Glickman) authorized the
officers of the Company to engage an independent appraiser to conduct an
appraisal of the Property, following which such Board members would seek to
negotiate a transaction with the Option Lenders taking into account, in
addition to the appraisal, all material circumstances relating to the
Property, including, without limitation, the inability of the Company to raise
sufficient funds required to exercise the Option, the time constraints within
which the Company must exercise the Option, and the consequent probability
that, without a sale to a related party, the Option would expire worthless.
On November 21, 1995, the Company received a report from the independent
appraiser it had retained which concluded that the range for the market value
of the Property was between $9.9 million and $11.9 million (before deducting
the $3 million that would have to be paid to exercise the Option), depending
on the ultimate cost of complying with zoning restrictions and other costs
that would be incurred in the development of the Property. The appraiser's
conclusion was based on a number of assumptions, including the assumption that
a sale would occur after a reasonable exposure in a competitive market under
all conditions requisite for a fair sale, with the buyer and seller acting
prudently, knowledgeably, for self-interest, and not under undue duress.
On March 4, 1996, at a special meeting of the Board of Directors of the
Company, appropriate officers of the Company were authorized and empowered to
engage in negotiations with the Option Lenders to reach a definite agreement
to sell the Option to them under terms and conditions that were outlined by
the Board. Although the parties were unable to reach a definitive agreement
prior to May 8, 1996, the Company continued to negotiate with affiliates of
the Option Lenders for the sale of the Property to them; and, on July 10,
1996, the Company entered into a contract to sell the Property to FAM, LLC
("FAM"), a Delaware limited liability company owned by Frankhill Associates,
the Alan N. Cohen Family Company, LLC, a Delaware limited liability company,
of which Alan N. Cohen is manager, and Builtland Associates, a New York
general partnership, of which Paul Milstein is a general partner. Builtland
Associates is the managing director of FAM and, as such, controls its
activities.
On August 1, 1996, FAM purchased the Property for $9.1 million, paid for
as follows:
a) Cancellation of the principal balance of the Option Loan in
the amount of $5,571,285 (after adjustment for a
restructuring which occurred in 1992) due to Frankhill
Associates, the Alan N. Cohen Family Company, LLC, and Paul
Milstein, and at closing held by FAM.
b) Cancellation of the Demand Loan of $3.3 million due
Frankhill Associates, the Alan N. Cohen Family Company, LLC,
and Paul Milstein, and at closing held by FAM.
c) Cash payment to the Company of $228,715.
In addition to the consideration outlined above, the Company was not
required to pay unpaid interest of $283,000 on the Option Loan and Demand Loan
and will be entitled to additional consideration if, within one year from the
date of sale to FAM, all or any portion of the Property is further transferred
to a bona fide third party or if FAM enters into an agreement to transfer all
or any portion of the Property to a bona fide third party and such transfer
ultimately occurs. In either of such events, the Company will be entitled to
50% of the amount by which the "Net Proceeds" of the sale of all or any
portion of the Property exceeds $10 million. In no event can such additional
consideration exceed $3 million. "Net Proceeds" is defined to mean the gross
sales price attributable to the sale of all or any portion of the Property
plus the then fair market value of any of the Property retained by FAM in
connection with a partial sale, less any and all transaction costs, taxes, and
all other expenses of FAM including, without limitation, brokerage
commissions, reasonable attorney's fees, and transfer taxes.
The Company reported a gain of approximately $6 million from the sale.
(See Note 13.)
3. RETIREMENT AGREEMENT
On August 31, 1996, Messrs. Andrew J. Frankel, then Chairman of the
Board of Directors, and Alan N. Cohen, then President of the Company, retired
pursuant to an agreement which provides that, in exchange for the issuance of
32,500 common shares of the Company to each of them, they agreed to reimburse
Andal for the lease obligation of Andal's former executive headquarters office
in New York City and certain other costs of operation of that office,
including the salary of Andal employees located there. The Company agreed to
maintain, at its own expense, health and life insurance benefits on Andal's
New York employees and to continue to pay the costs of letter of credit
guarantees by Mr. Frankel and Mr. Cohen until September 29, 1998, at which
time Andal will use its best efforts to replace the letters of credit with
other security. The Company recorded a charge of $441,000 in connection with
this Agreement. In September 1996, Andal's executive office records were
moved to Multi-Arc's facilities in Rockaway, New Jersey; and that facility now
serves as executive headquarters of the Company.
4. SALE OF MINORITY INTEREST IN MULTI-ARC INC.
In December 1994, Andal sold, for $500,000 approximately 2 1/2% of the
common stock of Multi-Arc to Multi-Arc's management; and Multi-Arc issued
$500,000 of convertible subordinated debentures (convertible into
approximately 2% of Multi-Arc common stock) to such management, the proceeds
of which were remitted to Andal as a return of capital. Both the sale of the
common stock and the issuance of the debentures were funded through non-recourse
loans of $1 million made to the management by Multi-Arc utilizing
Multi-Arc's revolving facility with First Fidelity Bank. Because of the non-
recourse nature of the loans, the gain on the sale of Multi-Arc common stock
of approximately $396,000 has been deferred until such time as the management
loans are repaid.
In June and September 1995, Andal sold, for $1,010,000, approximately
4.9% of the common stock of Multi-Arc to certain foreign licensees and other
investors; and Multi-Arc sold to such licensees and other investors $1,010,000
of convertible subordinated debentures (convertible into approximately 3.8% of
Multi-Arc common stock), the cash proceeds of which were remitted to Andal as
a return of capital. These debentures bear interest at 6% and are payable on
December 15, 2004. Approximately $450,000 of the common stock sold, and
$450,000 principal amount of the debentures sold are evidenced by a promissory
note which require monthly principal payments over three years plus interest
at 6% per annum. The unpaid balance of this note was $555,000 at September
30, 1996. An additional $153,000 of common stock and $153,000 principal
amount of the debentures were sold on open account which was paid in October
1996. The gain on these sales of Multi-Arc common stock was $800,000, of
which $452,000 was deferred and will be recognized as the amounts are
collected. In 1996, $232,000 of the deferred gain was included in investment
income.
5. MULTI-ARC JOINT VENTURES
In 1993, Multi-Arc acquired a 29% interest in Multi-Arc Scientific
Coatings (S) Pte. Ltd. ("Singapore"), a joint venture which commenced
operations in August 1993. Multi-Arc's share of Singapore's net income
(loss), recorded on the equity method, for the years ended September 30, 1996,
1995, and 1994 was $(43,000), $(110,000), and $(111,000), respectively.
During fiscal 1995, the Company invested an additional $247,000 in cash and
converted a long term receivable of $77,000 into equity. At September 30,
1996, Investments in Affiliates include the Company's investment in Singapore
of $250,000 ($293,000 at September 30, 1995).
Multi-Arc had a 40% equity interest in Multi-Arc India Ltd. ("India")
which has a fiscal year end of March 31. In November 1994, India completed an
initial public offering and was listed on the Bombay Stock Exchange. As a
result of this transaction, Multi-Arc's interest in India was reduced to 21%
and the Company recorded a pretax gain of $85,000. Multi-Arc's share of
India's net income (loss), recorded on the equity method, for the years ended
September 30, 1996, 1995, and 1994 was $147,000, $163,000, and $95,000,
respectively. During fiscal 1996, the Company received $49,000 of dividends
in cash ($36,000 in 1995). During fiscal 1994, the Company made additional
equity investments in India of $218,000 in cash and received $30,000 of
dividends in cash. At September 30, 1996, Investments in Affiliates includes
Andal's investment in India of $1,073,000 ($975,000 at September 30, 1995).
In October 1995, Multi-Arc (UK) Ltd. acquired a 33% interest in Multi-Arc
Eifeler Beschichtungs Gmbh ("Austria") in exchange for $49,000 in cash and
guarantees of certain of Austria's bank debt of $360,000. This investment is
accounted for under the cost method, as the Company does not exercise
significant influence over the management and operations of Austria.
In October 1996, Multi-Arc (UK) Ltd. acquired a 33% interest in Preci-Coat
S. A., a Switzerland joint venture, for $420,000 in cash and bank guarantees
of $1.6 million.
6. DISCONTINUED OPERATIONS
The income (loss) from discontinued operations in 1996, 1995, and 1994
is comprised of the following:
1996 1995 1994
Gain on divestiture of OMC $ 0 $ 0 $ 69,000
Reversal of reserve for income taxes 0 996,000 0
Income (loss) on discontinued
construction operations 234,000 11,000 (419,000)
-------- ---------- ----------
$234,000 $1,007,000 $(350,000)
On June 30, 1995, an appeals tribunal dismissed a claim against the
Company by a local taxing authority for income taxes relating to certain of
its discontinued operations. Income from discontinued operations for the year
ended September 30, 1995 includes the reversal of a reserve for income taxes,
plus accrued interest, in the aggregate amount of $996,000. The 1995 amount
also includes income of $141,000 related to settlement of a construction claim
and legal expenses of $130,000.
Construction operations consisted of construction subcontracting
businesses involved in wall, flooring, ceiling installation and plumbing,
heating, and electrical subcontracting. The Company commenced a program to
discontinue these businesses in 1981 which program was completed in 1983. The
income (loss) on discontinued construction operations for 1996, 1995, and 1994
is principally due to legal expenses incurred and settlements on litigation
related to those businesses.
7. INTEGRATED BRANDS, INC.
In December 1985, Andal purchased 46.5% of the common stock of
Integrated Brands, Inc. ("Integrated"), formerly Steve's Homemade Ice Cream,
Inc. Through a series of transactions, Andal's interest has been reduced to
3%. In the fourth quarter of 1996, based on current market conditions, the
Company recorded a writedown of $143,000 of its investment in Integrated. At
September 30, 1996, Investments in Affiliates includes Andal's investment in
Integrated of $250,000 ($393,000 at September 30, 1995).
During 1994, the Company disposed of 129,500 shares of Integrated in
various transactions for $161,000 in cash and recorded a net gain of $14,000.
In an additional transaction in August 1994, the Company sold 2,000,000 shares
of Integrated for $1,500,000 in cash and recorded a loss of $780,000. All
proceeds were used to repay debt.
8. ACCOUNTS RECEIVABLE
Receivables consist of the following:
September 30,
1996 1995
Accounts receivable $5,347,000 $5,096,000
Allowance for doubtful accounts (95,000) (98,000)
----------- -----------
$5,252,000 $4,998,000
9. INVENTORIES
Inventories consist of the following:
September 30,
1996 1995
Raw materials and supplies $1,126,000 $ 820,000
Work in progress 427,000 253,000
---------- -----------
$1,553,000 $1,073,000
10. PROPERTY AND EQUIPMENT
Property and equipment consist of the following:
September 30,
1996 1995
Building and leasehold
improvements $ 2,668,000 $ 2,521,000
Furniture and equipment 27,299,000 24,098,000
------------- -------------
29,967,000 26,619,000
Less accumulated
depreciation and amortization (17,689,000) (15,830,000)
------------- -------------
$ 12,278,000 $ 10,789,000
Substantially all property and equipment at September 30, 1996 is
pledged as collateral pursuant to loan agreements.
In addition to property owned, the Company leases various operating
facilities and equipment. Rent expense under operating leases was $1,513,000,
$1,321,000, and $1,305,000, for the years ended September 30, 1996, 1995, and
1994, respectively.
The aggregate minimum rental commitments under operating leases as of
September 30, 1996 for each of the fiscal years ended September 30 are as
follows: 1997, $1,385,000; 1998, $1,246,000; 1999, $949,000; 2000, $645,000;
2001, $369,000 and $715,000 thereafter.
11. 401K PLANS
The Company maintains several defined contribution 401K savings plans
for the benefit of its employees. Annual contributions to the plans are at
the discretion of management. Aggregate expense related to all plans amounted
to $328,000 in 1996, $294,000 in 1995, and $225,000 in 1994.
12. CREDIT FACILITIES AND LONG TERM DEBT
Long term debt consists of the following:
September 30,
1996 1995
First Union National Bank
U. S. -Term loan $ 7,000,000 $ 5,214,000
Revolving credit facility 1,000,000 1,500,000
U. K. - Term loan 2,009,000 2,370,000
Other 0 8,000
------------ ------------
10,009,000 9,092,000
Less current portion (1,338,000) (1,206,000)
------------ ------------
$ 8,671,000 $ 7,886,000
On August 27, 1996, Multi-Arc Inc. completed a refinancing of its
indebtedness to First Union National Bank and obtained a $7 million Term Loan,
a $1.5 million Equipment Term Line of Credit, and a $5 million Revolving
Credit Facility.
The Term Loan agreement requires repayment of principal in equal monthly
installments over 84 months. Interest, calculated at a floating rate of LIBOR
(5.40% at August 31, 1996) plus 1.35% per annum accrues and is also payable
monthly. The Term Loan agreement also requires that Multi-Arc hedge its
floating interest expense for the full term of the loan by utilizing interest
rate swap agreements. Accordingly, Multi-Arc has entered into such agreements
resulting in a fixed rate of approximately 8.15% per annum for the life of the
loan.
The Equipment Term Line of Credit permits Multi-Arc to borrow up to $1.5
million to purchase new or used equipment (not to exceed 80% of the purchase
price of new equipment and 50% of the purchase price of used equipment).
Borrowings under this Term Line of Credit require monthly repayment of
principal in equal installments over 60 months. Interest accrues and is
payable under the same terms and conditions as the Term Loan discussed above.
As of September 30, 1996, Multi-Arc had not made any borrowings under this
credit line.
The Revolving Credit Facility, which expires on September 1, 1999,
allows Multi-Arc to borrow up to $5 million for working capital purposes.
Borrowings under this facility are limited based on specified percentages of
eligible receivables and inventories and bear interest at .25% per annum below
the prime rate. As of September 30, 1996, Multi-Arc had borrowed $1 million
under this facility and had an additional $2,100,000 available based on
eligible receivables and inventories at that date.
In September 1995, the Company refinanced the debt of its subsidiary,
Multi-Arc (UK) Ltd., with First Union National Bank. The new credit
facilities consist of a five-year term loan in the principal amount of
1,500,000 pounds sterling repayable in quarterly installments of 54,000 pounds
sterling commencing in December 1995 and a final installment of 474,000 pounds
sterling due in September 2000. Proceeds of the term loan were used to repay
outstanding indebtedness and to advance an inter-corporate loan to Multi-Arc
Inc., and for acquisition of new equipment. In addition to the term loan,
First Union has extended a 250,000 pounds sterling overdraft facility for
working capital purposes. At September 30, 1996, no borrowings had been made
under this facility.
See Note 5 for a discussion of certain guarantees of investee
indebtedness by Multi-Arc (UK) Ltd.
Andal remains obligated to Chemical Bank in the amount of $829,000 under
an outstanding letter of credit issued by Chemical Bank in connection with an
appeal bond. Because of Andal's inability to fund the liability represented
by the letter of credit, Messrs. Andrew J. Frankel, Paul A. Milstein, and Alan
N. Cohen each have personally guaranteed one-third of the letter of credit
liability, for which Andal has agreed to pay to them an aggregate annual
guarantee fee equal to 2% of the letters of credit outstanding until September
29, 1998, at which time Andal will use its best efforts to replace the letters
of credit with other security (see Note 3).
Substantially all of the Company's and Multi-Arc's assets serve as
collateral for the various term loans and lines of credit with First Union
National Bank. The various loan agreements require Multi-Arc to maintain
compliance with certain financial ratios and other covenants. As of September
30, 1996, Multi-Arc was in compliance with all such covenants or has obtained
waivers of all such covenants for which it was not in compliance.
The aggregate annual maturities of long term debt during the next five
fiscal years are: 1997, $1,338,000; 1998, $1,338,000; 1999, $2,338,000; 2000,
$1,995,000; and 2001, $1,000,000. Interest paid during the fiscal years ended
September 30, 1996, 1995, and 1994 amounted to $1,375,000, $1,631,000, and
$1,650,000, respectively.
13. DEBT DUE SHAREHOLDERS
Debt due shareholders consists of:
September 30,
1996 1995
UBC Lenders $ 0 $ 5,571,000
Fleet Assignees 96,000 2,043,000
--------- ------------
96,000 7,614,000
Less current portion (96,000) (1,250,000)
--------- ------------
$ 0 $ 6,364,000
See Note 2 for a discussion of the transaction which gave rise to the
cancellation of the UBC Lender debt in 1996.
On August 31, 1996, Andal Corp. retired $1,404,000 of indebtedness owing
to Frankhill Associates, Alan N. Cohen, and Paul Milstein in exchange for
45,000 shares of the Company's common stock which is reflected as a
contribution of capital in the accompanying financial statements. Frankhill
Associates and Messrs. Cohen and Milstein had purchased the indebtedness from
the Fleet Bank in 1994. Subsequently, Peter D. Flood purchased a portion of
such debt from Frankhill Associates and Messrs. Cohen and Milstein. During
the year, the Company had repaid $543,000 of the debt in cash. At September
30, 1996, $96,000 of the Fleet Assignee Debt is owing to Mr. Flood. Pursuant
to Mr. Flood's employment agreement with the Company, the debt is to be repaid
with interest at 8% per annum, as soon as the cash flow of the Company, in the
reasonable discretion of the Board of Directors, permits.
14. CONVERTIBLE SUBORDINATED DEBT
Convertible subordinated debt at September 30, 1996 and 1995 consists of
$1,825,000 of Andal's 5 1/2% convertible subordinated debentures due in
September 1997 and $1,510,000 of Multi-Arc's 6% convertible subordinated
debentures due in 2004 (see Note 4).
Andal's 5 1/2% convertible subordinated debentures are (i) at Andal's
election, redeemable (with accrued interest) at 100% of the principal amount;
and (ii) convertible into one common share for each $450.00 of principal
amount, subject to usual anti-dilution provisions, or a total of 4,056 common
shares at September 30, 1996. All sinking fund requirements have been met.
The Multi-Arc debentures are convertible into one share of common stock
of Multi-Arc Inc. for each $266.67 of principal at any time after September
30, 1996.
15. CAPITAL SHARES
At September 30, 1996, common shares reserved for future issuance were
as follows:
Issuable under stock option plans 15,000
Issuable upon conversion of convertible
subordinated debentures 4,056
Messrs. Frankel and Cohen retired on August 31, 1996 pursuant to an
agreement which provided for the issuance of 32,500 common shares of the
Company to each of them (see Note 3).
See Note 13 for a discussion of the 45,000 shares of common stock of the
Company issued in cancellation of the Fleet Assignee debt.
On August 31, 1996, the Company issued 7,500 common shares to Peter D.
Flood, pursuant to his Employment Agreement and recorded an expense of
$17,000.
16. STOCK OPTIONS
In 1987, Andal adopted a Stock Option Plan under which options covering
up to 15,000 shares of Andal common stock may be granted to eligible key
employees. Options granted under the plan may be either "incentive stock
options" or non-qualified options. Under the plan, the purchase price per
share for stock options granted must equal or exceed the market value of
Andal's common stock at the time of grant. All options granted under the plan
expire no later than five years from the date of grant. Options may not be
exercised for a period of 30 months after grant. After 30 months, 40% of the
option shares may be exercised; after 42 months, 60% of such shares may be
exercised; and, after 48 months, all of such shares may be exercised. The
options expire 60 months after grant. The Board of Directors or the
Compensation Committee thereof may accelerate, in whole or in part, the time
or times at which such options may be exercised. In the case of incentive
stock options, whether granted under this plan or any earlier plan of the
Company, no more than $100,000 in value of shares (determined on the date of
grant) may become exercisable by any single optionee during any calendar year.
The plan also permits the granting of stock appreciation rights either
at the time that an option is granted or a later time under which an optionee
may, instead of paying the option price and receiving the full number of
shares covered by the exercised option, receive instead the then excess of the
value of the shares subject to the option over the option price. Payment
under a stock appreciation right may be in shares of stock (at current fair
market value), or cash, or any combination thereof.
No options were converted or exercised under this plan in 1996, 1995,
and 1994.
At September 30, 1996, there were 6,125 shares (6,050 at September 30,
1995) reserved for future grant of options. At September 30, 1995 and 1994,
none of the outstanding options were exercisable. A summary of stock option
transactions follows:
1987 Stock Option Plan
Average Price per
Number of Shares Share
Options outstanding at
September 30, 1992 11,630 $ 41.80
Cancelled during 1993 (2,700) $143.52
Options outstanding at
September 30, 1993 8,930 $ 11.15
Canceled during 1994 (100) $112.50
Options outstanding at
September 30, 1994 8,830 $ 10.00
Canceled during 1995 (8,830) $ 10.00
Granted during 1995 8,950 $ 2.25
Options outstanding at
September 30, 1995 8,950 $ 2.25
Cancelled during 1996 (75) $ 2.25
Options outstanding at
September 30, 1996 8,875 $ 2.25
In December, 1994, Multi-Arc adopted the Multi-Arc Inc. 1994 Incentive
and Non-Statutory Stock Option Plan (the "Multi-Arc Plan") under which options
covering up to 5,000 shares of Multi-Arc common stock may be granted to
employees. Under the Plan, the purchase price per share for stock options
granted must equal or exceed the market value of Multi-Arc's stock at time of
grant. Options may be exercised at the rate of 20% per annum. The options
expire ten years after date of grant.
During 1995, Multi-Arc Inc. granted options for 5,000 shares to eligible
employees at $205.13 per share. No further shares are available for grant
under the Multi-Arc Plan.
17. INCOME TAXES
Andal and its subsidiaries file a consolidated federal income tax
return, and state and local tax returns are generally filed on a combined
basis.
The Company has adopted the provisions of the Financial Accounting
Standards Board Statement No. 109, "Accounting for Income Taxes," effective
October 1, 1993. There was no cumulative effect on the Company's financial
statements as of October 1, 1993 for adopting Statement No. 109.
Under Statement No. 109, the liability method is used in accounting for
income taxes. Under this method, deferred tax assets and liabilities are
determined based on differences between financial reporting and tax basis of
assets and liabilities and are measured using the enacted tax rates and laws
that will be in effect when the differences are expected to reverse.
At September 30, 1996, the Company had net operating loss carryforwards
("NOL's") for federal income tax purposes of approximately $30.3 million which
expire in varying amounts through 2010. In addition, the Company's subsidiary
in the United Kingdom had unrelieved corporation tax losses of approximately
$1.8 million.
Deferred income taxes reflect the net tax effects of temporary
differences between the carrying amount of assets and liabilities for
financial reporting purposes and the amounts used for income tax purposes.
Significant components of the Company's deferred tax assets and liabilities as
of September 30, 1996 and 1995 are as follows:
1996 1995
Deferred Tax Assets:
Accruals and Reserves $ 1,285,000 $ 3,074,000
Installment Note 0 258,000
Deferred Gain on Sale of Subsidiary Stock 229,000 181,000
Future Tax Benefit of NOL Carryforwards 12,739,000 13,329,000
Future Tax Benefit of Credit Carryforwards 822,000 564,000
------------ ------------
Gross Deferred Tax Assets 15,075,000 17,406,000
Deferred Tax Liabilities:
Fixed Assets and Intangibles 1,345,000 1,053,000
Foreign Income 76,000 498,000
Investment in Foreign Joint Ventures 97,000 124,000
------------ ------------
Deferred Tax Liabilities 1,518,000 1,675,000
Net Deferred Tax Assets 13,557,000 15,731,000
Valuation Allowance (11,157,000) (15,731,000)
------------ ------------
Net Deferred Taxes $ 2,400,000 $ 0
The Company has provided a valuation allowance because it is more likely
than not that a substantial portion of the net deferred tax assets will not be
realized.
The reconciliation of income taxes computed at the U. S. statutory rate
to income tax (expense) benefit for the year ended September 30, 1996, 1995,
and 1994 is:
1996 1995 1994
Tax (expense) benefit at U. S.
statutory rate $(2,532,000) $(317,000) $ 387,000
State taxes, net of federal benefit (320,000) (46,000) 0
Utilization of federal and state
net operating losses 353,000 300,000 (551,000)
Foreign earnings 164,000 16,000 145,000
Other items 3,000 (7,000) 2,000
Reduction in valuation allowance 4,574,000 0 0
------------ ---------- ----------
Income tax (expense) benefit $ 2,242,000 $ (54,000) $ (17,000)
18. LITIGATION
The Company is aware of various lawsuits, claims, and administrative
proceedings which are pending involving it or its subsidiaries. In the
opinion of the Company's management, these matters will not result in any
material adverse effect on the Company's consolidated financial condition.
19. QUARTERLY FINANCIAL DATA (UNAUDITED)
Quarterly results of operations for the fiscal years ended September 30,
1996 and 1995 are summarized in the following table:
First Second Third Fourth
Quarter Quarter Quarter Quarter
(Thousands of Dollars,
except per Share Amounts)
1996
Operating revenues $7,569 $7,701 $7,952 $8,393
Income (loss) from operations 503 615 671 (154)
Income (loss) from
continuing operations 42 154 164 7,791
Net income (loss) 42 392 164 7,787
Income (loss) per common share:
Income (loss) from
continuing operations .13 .47 .50 22.90
Net income (loss) .13 1.19 .50 22.87
1995
Operating revenues $6,507 $8,404 $7,753 $7,719
Income (loss) from operations 277 1,069 542 526
Income (loss) from
continuing operations (81) 595 241 124
Net income (loss) (192) 696 1,273 109
Income (loss) per common share:
Income (loss) from
continuing operations (.24) 1.80 .73 .38
Net income (loss) (.58) 2.11 3.86 .33
In the fourth quarter of 1996, the Company recorded a $6 million gain on
the sale of the 61st Street property (see Note 2); a charge of $441,000 in
connection with the Retirement Agreement with Messrs. Frankel and Cohen (see
Note 3); a write down of $143,000 of its investment in Integrated (see Note
7); and a deferred tax benefit of $2.4 million (see Note 17).
In the fourth quarter of 1995, the Company recorded additional gains of
$160,000 on the sale of minority interest in Multi-Arc Inc. and additional
minority interest in the net income of Multi-Arc Inc. of $93,000.
20. INDUSTRY SEGMENT INFORMATION
Andal, through its Multi-Arc Inc. subsidiary, is engaged in surface
enhancement, the business of coating materials, primarily metals. Multi-Arc
is also engaged in the design, manufacture, assembly, and sale of proprietary
coating equipment systems.
Operating profit (loss) is computed as total revenue less operating
expenses. The computation includes other income but excludes interest
expense, general corporate overhead, and income taxes. Identifiable assets
by industry are those assets that are used in Andal's operations in each
industry segment.
The following table sets forth information on the effects of foreign
operations (principally in the United Kingdom) as of and for the years ended
September 30, 1996, 1995, and 1994:
September 30,
1996 1995 1994
(Thousands of Dollars)
Revenues $6,086 $5,255 $4,268
Operating profits 1,801 1,363 869
Identifiable assets 6,326 6,463 5,352
Capital expenditures 755 1,411 340
Depreciation and amortization 467 547 622
21. SUBSEQUENT EVENT (UNAUDITED)
The Company is presently in discussion with a much larger company for
the sale of the Company's principal operating subsidiary, Multi-Arc Inc. No
agreement has been reached on either price or structure of any transaction.
Important factors which could interfere with the completion of this
transaction are the ability of the parties to reach an agreement as to price
and structure or other details of the transaction and satisfactory completion
of the purchaser's due diligence concerning Multi-Arc's business affairs.
There can be no assurance that these discussions will result in any
transaction.
<PAGE>
ANDAL CORP.
CONDENSED BALANCE SHEET
(PARENT COMPANY ONLY--IN $000's)
ASSETS
September 30
1996 1995
Current assets:
Cash $ 21 $ 51
Accounts and notes receivable 402 801
--------- --------
Total current assets 423 852
Investment in Integrated Resources, Inc. 250 393
Investment in Multi-Arc Inc. 6,510 4,401
Deferred income taxes 2,400 0
Other assets 365 774
--------- --------
$ 9,948 $ 6,420
LIABILITIES AND SHAREHOLDERS' EQUITY
Current Liabilities:
Current portion of debt due shareholders $ 96 $ 1,250
Accounts payable 126 88
Accrued expenses 3,795 2,848
Due to Multi-Arc Inc. 460 0
--------- --------
Total current liabilities 4,477 4,186
Debt due shareholders 0 6,364
Deferred income 616 968
Shareholders' equity (deficit):
Common shares, par value $20 per share,
1,500,000 authorized, 370,496 issues 8,947 7,410
Paid-in-capital 25,995 31,625
Deficit (30,087) (38,472)
Less 40,637 common shares
held in treasury in 1995, at cost 0 (5,661)
-------- ---------
Total shareholders' equity 4,855 (5,098)
-------- ---------
$ 9,948 $ 6,420
ANDAL CORP.
CONDENSED STATEMENT OF OPERATIONS
(PARENT COMPANY ONLY--IN $000's)
Year Ended September 30
1996 1995 1994
Operating costs and expenses:
General and administrative expense $1,953 $1,333 $ 1,768
Other income (expense):
Equity in earnings of Multi-Arc Inc. 1,704 3,192 2,654
Gain on sale of 61st Street property 6,009 0 0
Gain on sale of minority interest in
Multi-Arc Inc. 0 348 0
Interest expense (747) (833) (835)
Investment and other income 150 37 (756)
------- ------- -------
Income (loss) from continuing operations
before income taxes 5,163 1,411 (705)
Provision for income taxes 2,988 (532) (66)
------- ------- -------
Income (loss) from continuing operations 8,151 879 (771)
Income (loss) from discontinued operations 234 1,007 (350)
------- ------- -------
Net income (loss) $8,385 $1,886 $(1,121)
<PAGE>
ANDAL CORP.
CONDENSED STATEMENT OF CASH FLOWS
(PARENT COMPANY ONLY--IN $000's)
Year Ended September 30
1996 1995 1994
Net cash (used) by operating activities $(1,030) $(1,910) $(2,346)
Cash flows from financing activities:
Repayments of intercompany debt 0 0 7,504
Proceeds from long term debt 0 (857) 0
Reductions of long term debt (543) (500) (7,096)
Capital distributions from Multi-Arc Inc. 0 957 1,000
Proceeds from sale of debentures and
common stock of Multi-Arc Inc. 0 1,714 0
Deferred financing costs (97) (126) 0
-------- -------- --------
Net cash provided (used) by
financing activities (640) 1,188 1,408
Cash flows from investing activities:
Net proceeds from sale of
61st Street property 529 0 0
Reduction of investment in affiliate 0 0 1,661
Advance from Multi-Arc Inc. 643 0 0
Other, net 468 238 (250)
-------- -------- --------
Net cash provided from investing activities 1,640 238 1,411
-------- -------- --------
Increase (decrease) in cash (30) (484) 473
Cash at beginning of year 51 535 62
-------- -------- --------
Cash at end of year $ 21 $ 51 $ 535
<PAGE>
ANDAL CORP.
Notes to Condensed Financial Statements
1. Basis of Preparation
In the parent company-only financial statements, the Company's
investment in subsidiaries is stated at cost plus equity in undistributed
earnings of subsidiaries since date of acquisition. The Company's share of
net income of its unconsolidated subsidiaries is included in consolidated
income using the equity method. The parent company-only financial statements
should be read in conjunction with the Company's consolidated financial
statements.
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
EXHIBITS
to
ANNUAL REPORT ON FORM 10-K
FOR THE FISCAL YEAR ENDED
SEPTEMBER 30, 1996
ANDAL CORP.
<PAGE>
EXHIBIT INDEX
EXHIBIT DESCRIPTION OF EXHIBIT
3(a) Restated Certificate of Incorporation of the Company as filed with
the Secretary of State of New York on March 16, 1972 (the
"Certificate of Incorporation") (incorporated by reference to
Exhibit 3(a) to Company's Annual Report on Form 10-K for fiscal
year ended September 30, 1986).
3(b) Certificate of Amendment of the Certificate of Incorporation as
filed with the Secretary of State of New York on November 5, 1979
(incorporated by reference to Exhibit 3(b) to Company's Annual
Report on Form 10-K for fiscal year ended September 30, 1986).
3(c) Certificate of Amendment of the Certificate of Incorporation as
filed with the Secretary of State of New York on October 22, 1981
(incorporated by reference to Exhibit 3(c) to Company's Annual
Report on Form 10-K for fiscal year ended September 30, 1986).
3(d) Certificate of Amendment of the Certificate of Incorporation as
filed with the Secretary of State of New York on November 7, 1983
(incorporated by reference to Exhibit 3(d) to Company's Annual
Report on Form 10-K for fiscal year ended September 30, 1986).
3(e) Certificate of Amendment of the Certificate of Incorporation as
filed with the Secretary of State of New York on April 8, 1987
(incorporated by reference to Exhibit 4.5 to Company's
Registration Statement on Form S-8 as filed with the Securities
and Exchange Commission on May 5, 1987).
3(f) Certificate of Amendment of the Certificate of Incorporation as
filed with the Secretary of State of New York on June 15, 1993
(incorporated by reference to Exhibit 3(f) to Company's Annual
Report on Form 10-K for Fiscal Year ended September 30, 1993).
3(g) By-laws of the Company (incorporated by reference to Exhibit 4.6
to Company's Registration Statement on Form S-8 as filed with the
Securities and Exchange Commission on May 5, 1987).
4(a) Indenture dated as of September 15, 1972 between the Company and
Manufacturers Hanover Trust Company, as Trustee, relating to the
Company's 5 1/2% convertible subordinated debentures due September
15, 1997 (incorporated by reference to Exhibit 4(a) to Company's
Annual Report on Form 10-K for fiscal year ended September 30,
1986).
4(b) First Supplemental Indenture dated as of January 12, 1982 between
the Company and United States Trust Company of New York, as
Trustee, relating to the Company's 5 1/2% convertible subordinated
debentures due September 15, 1997 (incorporated by reference to
Exhibit 4(b) to Company's Annual Report on Form 10-K for fiscal
year ended September 30, 1986).
10(a) 1987 Stock Option Plan of the Company (incorporated by reference
to Exhibit 10(c) to the Company's Annual Report on Form 10-K for
fiscal year ended September 30, 1987).
10(b) Option Agreement dated as of August 1, 1982 between Schnurmacher
Corp. and the Company (incorporated by reference to Exhibit 10(v)
to Company's Annual Report on Form 10-K for fiscal year ended
September 30, 1986).
10(c) Lease dated May 11, 1988, containing an Option to Purchase,
between Roundhill Associates and the Company (incorporated by
reference to Exhibit 10(ag) to Company's Annual Report on Form 10-K
for fiscal year ended September 30, 1988).
10(d) Subordination Agreement dated September 30, 1994 of Multi-Arc Inc.
as debtor and Andal Corp. as subordinated lender in favor of First
Fidelity Bank, N.A. (incorporated by reference to Exhibit 10(l) to
the Company's Annual Report on Form 10-K for the year ended
September 30, 1994).
10(e) Security Agreement dated September 30, 1994 by and between First
Fidelity Bank, N.A. and Vagle Technology, Inc., Multi-Arc, Inc. (a
Minnesota corporation), Multi-Arc Inc., Multi-Arc of Ohio, Inc.,
and S. C. I. Coatings Limited (incorporated by reference to
Exhibit 10(m) to the Company's Annual Report on Form 10-K for the
year ended September 30, 1994).
10(f) Multi-Arc Inc., Andal Corp., and United States Trust Company of
New York, Trustee. Second Supplemental Indenture dated as of
September 30, 1994 5 1/2% Convertible Subordinated Debentures due
1997 (incorporated by reference to Exhibit 10(o) to the Company's
Annual Report on Form 10-K for the year ended September 30, 1994).
10(g) Pledge and Security Agreement dated September 30, 1994 by and
among Andal Corp. and First Fidelity Bank, N.A. (incorporated by
reference to Exhibit 10(p) to the Company's Annual Report on Form
10-K for the year ended September 30, 1994).
10(h) Form of Multi-Arc Inc. 6% Convertible Subordinated Debenture due
December 15, 2004 (incorporated by reference to Exhibit 10(p) to
the Company's Annual Report on Form 10-K for the year ended
September 30, 1995).
10(i) Form of Multi-Arc Inc. Stockholders Agreement dated June 15, 1995
(incorporated by reference to Exhibit 10(q) to the Company's
Annual Report on Form 10-K for the year ended September 30, 1995).
10(j) 1994 Multi-Arc Inc. Stock Option Plan (incorporated by reference
to Exhibit 10(r) to the Company's Annual Report on Form 10-K for
the year ended September 30, 1995).
10(k) Loan Agreement dated September 21, 1995 between First Fidelity
Bank N. A. and Multi-Arc (UK) Ltd. (incorporated by reference to
Exhibit 10(s) to the Company's Annual Report on Form 10-K for the
year ended September 30, 1995).
10(l) Overdraft Facility Agreement between First Fidelity Bank N. A. and
Multi-Arc (UK) Ltd. dated September 21, 1995 (incorporated by
reference to Exhibit 10(t) to the Company's Annual Report on Form
10-K for the year ended September 30, 1995).
10(m) 61st Street Option Exercise (incorporated by reference to Exhibit
10(u) to the Company's Annual Report on Form 10-K for the year
ended September 30, 1995).
10(n) Contract of Sale of 61st Street Property dated July 10, 1996
(incorporated by reference to Exhibit 10(r) to the Company's
Quarterly Report on Form 10-Q for the quarterly period ended June
30, 1996.
10(o) Retirement Agreement between Andal Corp. and Andrew J. Frankel and
Alan N. Cohen dated August 31, 1996 (incorporated by reference to
Exhibit 10(a) to the Company's Current Report on Form 8-K dated
August 30, 1996).
10(p) Employment Agreement between Andal Corp. and Peter D. Flood dated
as of August 31, 1996 (incorporated by reference to Exhibit 10(b)
to the Company's Current Report on Form 8-K dated August 30,
1996).
10(q) Consolidated, Modified, and Restated Loan and Security Agreement,
dated August 27, 1996 by and between First Union National Bank and
Multi-Arc Inc., a Delaware Corporation; Multi-Arc, Inc., a
Minnesota Corporation; Vagle Technology, Inc., a Michigan
Corporation; Multi-Arc of Ohio, Inc., an Ohio Corporation;
Scientific Coatings of Illinois, Inc., a Michigan Corporation;
Scientific Coatings, Inc., a Michigan Corporation; and SCI
Coatings Southwest, Inc., a Texas Corporation.
10(r) Employment Agreement between Andal Corp. and Walter N. Kreil, Jr.
dated as of August 31, 1996.
22 Significant Subsidiaries of the Company
24(a) Consent of Kelly, Graham, Myska & Partners.
24(b) Consent of KPMG Peat Marwick.
27 Financial Data Schedule
<PAGE>
EXHIBIT 10(q)
CONSOLIDATED, MODIFIED and RESTATED
LOAN AND SECURITY AGREEMENT, dated
August 27, 1996 by and between FIRST UNION
NATIONAL BANK, a national banking association
organized under Acts of Congress, (hereinafter
called "Bank"), and MULTI-ARC INC., a Delaware
Corporation ("MAI"), MULTI-ARC, INC., a
Minnesota Corporation ("MAI-Minn"), VAGLE
TECHNOLOGY, INC., a Michigan Corporation
("Vagle"), MULTI-ARC OF OHIO, INC., an Ohio
Corporation ("MAI-Ohio"), SCIENTIFIC
COATINGS OF ILLINOIS, INC., a Michigan
Corporation ("SCI-Mich"), SCIENTIFIC
COATINGS, INC., a Michigan Corporation
("SCI"), and SCI COATINGS SOUTHWEST,
INC., a Texas Corporation ("SCI-Texas") (MAI,
MAI-Minn, Vagle, MAI-Ohio, SCI-Mich, SCI and
SCI-Texas hereinafter individually and
collectively called "Borrower").
RECITALS
A. Bank (formerly known as First Fidelity Bank, National Association),
and SCI-Mich, SCI, and SCI-Texas (the "Original Borrowers") entered into
a Loan and Security Agreement dated September 30, 1994 as modified (the "1994
Loan Agreement") which sets forth the terms and conditions of a Six Milhon
Dollar Term Loan and a Four Million Dollar revolving credit facility by Bank
to said entities.
B. MAI, Vagle, MAI-Minn and MAI-Ohio executed and delivered to Bank a
Guaranty and Suretyship Agreement dated September 24, 1994, pursuant to
which said entities guaranteed all the existing and future liabilities of the
Original Borrowers to Bank.
C. To secure, inter alia, said Guaranty and Suretyship Agreement, MAI,
Vagle, MAI-Minn and MAI-Ohio entered into a Security Agreement with Bank dated
September 30, 1994 (the "1994 Security Agreement") pursuant to which, inter
alia, said entities granted to Bank liens on certain of their assets.
D. Multi-Arc Inc. a corporation organized under the laws of the
Province of Ontario, (MAI "Canada") (formerly known as S.C.I. Coatings Limited)
was also a party to said 1994 Security Agreement, pursuant to which it also,
inter alia, granted to Bank a lien on certain of its assets to secure, inter
alia, its guaranty of the liabilities of Vagle to Bank.
E. The Original Borrowers and each of MAI, Vagle, MAI-Minn and MAI-Ohio
have applied to Bank for credit facilities which would replace the credit
facilities under the 1994 Loan Agreement and under which each would be a co-
borrower and which would consist of (i) a term loan of up to Seven Million
Dollars, which would refinance the outstanding balance of the term loan and
the revolving credit facility under the 1994 Loan Agreements, and (ii) a
revolving credit-term loan facility of up to One Million Five Hundred Thousand
DoIlars to finance the acquisition of items of equipment, and (iii) a
revolving credit facility of up to Five Million Dollars to finance accounts
receivable and inventory purchases.
F. Borrower and Bank have agreed to consolidate the 1994 Security
Agreement with the 1994 Loan Agreement as to the original Borrowers and MAI,
Vagle, MAI-Minn and MAI-Ohio (but to have the Security Agreement remain in
effect as to MAI Canada), and to modify and restate as so modified the
consolidated agreement so as to set forth the terms and conditions of the new
credit facilities.
NOW, THEREFORE, in consideration of these premises and other good and
valuable consideration, the parties hereto adopt the foregoing recitals
and agree as follows:
I
DEFINITIONS
1.1 "ACCOUNT" or "ACCOUNTS RECEIVABLE" means, in addition to the
definition of account as contained in the Uniform Commercial Code, the right
of the Borrower or a Qualified Obligor to receive payment for goods sold or
leased or for services rendered which are not evidenced by an instrument or
chattel paper, whether or not it has been earned by performance.
1.2 "ACCOUNT DEBTOR" means, in addition to the definition of account
debtor as contained in the Uniform Commercial Code, the Person or Persons
obligated to Borrower or a Qualified Obligor on an Account, or who is
represented by the Borrower or a Qualified Obligor to be so obligated.
1.3 "ADVANCES" means all loans by Bank to Borrower under this Agreement.
1.4 "AFFILIATE" means any Person which, directly or indirectly, owns or
controls, on an aggregate basis, including all beneficial ownership and
ownership or control as a trustee, guardian or other fiduciary, at least five
(5%) percent of the outstanding capital stock having ordinary voting power to
elect a majority of the board of directors (irrespective of whether, at the
time, stock of any other class or classes of such corporation shall have or
might have voting power by reason of the happening of any contingency) of
Borrower or any Obligor or any Subsidiary, or is controlled by or is under
common control with Borrower or any such Person, or any stockholders of
Borrower or any such Person, or any Subsidiary. For the purpose of this
definition, "control" means the possession, directly or indirectly, of the
power to direct or cause the direction of management and policies, whether
through the ownership of voting securities, by contract or otherwise.
1.5 "AGREEMENT" means this Consolidated, Modified and Restated Loan
and Security Agreement, as may from time to time be supplemented, amended or
modified.
1.6 "BANK" means First Union National Bank, its successors and assigns.
1.7 "BANK AFF1LIATE" means First Union Corporation, its successor and
assigns, and any of its direct and indirect Affiliates and Subsidiaries.
1.8 "BANK LETTERS OF CREDIT" means each and every letter of credit
issued from time to time by Bank or any Bank Affiliate on behalf of the
Borrower or on behalf of any third party and as to which Borrower has
guaranteed the reimbursement obligations of such third party to Bank or Bank
Affiliate with respect thereto, including but not limited to each letter of
credit issued under paragraph 2.2 hereof.
1.9 "BORROWER" means the parties identified on the first page hereof as
Borrower, it be ing the intent of this Agreement that each shall be considered
individually or collectively as Borrower regardless of which receives the
proceeds of the loans, advances or financial accommodations hereunder and
regardless of which is the source of the Collateral hereunder and that each
Borrower shall be jointly and severally liable for all of the Obligations.
1.10 "BORROWING BASE" means the lesser of (A) Five Million ($5,000,000.00)
Dollars, or (B) the sum of (i) the Eligible Loan Value of Eligible Accounts
plus (ii) the Eligible Loan Value of Eligible Inventory.
1.11 "BUSINESS DAY" means a day other than a Saturday or Sunday or other
day on which Bank is authorized or required to close under the laws of the
State of New Jersey or applicable Federal Law.
1.12 "CAPITAL EXPENDITURES" means for any period the aggregate of all
expenditures (including that portion of Capital Leases which is or should be
capitalized, in accordance with GAAP on the consolidated balance sheet of a
Person) by such Person during that period for any fixed assets, improvements,
or replacements, substitutions or additions thereto that have a useful life of
more than one (1) year including, without limitation, the direct or indirect
acquisition of such assets by way of increased product charges, offset items
or otherwise.
1.13 "CAPITAL LEASE" as applied to any Person, means any lease of any
property (whether real, personal or mixed) by that Person as lessee which
would, in conformity with GAAP be required to be accounted for as a capital
lease on the balance sheet of that Person.
1.14 "CASH FLOW" means at any date the EBITDA of a person minus (A) all
Capital Expenditures during the twelve (12) months preceding said date to
the extent not financed by loans from Bank or a third party or under Capital
Leases; (B) All dividends and other distributions of capital during such
twelve (12) months and (C) all taxes paid during such preceding twelve (12)
months or then due.
1.15 "CASH FLOW COVERAGE RATIO" means at any date the ratio of (A) Cash
Flow divided by (B) the sum of (i) all principal paid and/or scheduled to be
paid during the twelve (12) months preceding said date on all long term
Indebtedness plus (ii) all interest due during the twelve (12) months
preceding said date on all lndebtedness plus (iii) all obligations paid or
scheduled to be paid under Capital Leases during the twelve (12) months
preceding said date provided, however that for the purpose of this paragraph
1.15 to the extent the Borrower has hedged the floating interest rate payable
under any long term lndebtedness by entering into a swap agreement (as defined
in 11 U.S.C. Section 1Ol) with Bank or other counterparty satisfactory to Bank,
interest on such Indebtedness shall be based on the synthetic fixed rate
payable by the fixed rate payor under such swap agreement.
1.16 "CHATTEL PAPER" means, in addition to the definition of chattel
paper as contained in the Uniform Commercial Code, a writing or writings which
evidence both a money obligation and a security interest in, or a lease of,
specific Goods. When a transaction is evidenced both by such a security
agreement or a lease and by an Instrument or series of Instruments, the group
of writings taken together constitutes Chattel Paper.
1.17 "COLLATERAL" means all of those present or future assets, real or
personal, of Borrower or other Obligor in which a security interest in or
lien on is granted to Bank hereunder or contemplated hereby, or under any
other present or future agreement by Borrower in favor of Bank or any Bank
Affiliate.
1.18 "CONTINGENT OBLIGATIONS" shall mean, as to any Person, any
obligation of such Person guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations ("primary obligations")
of any other Person (the "primary obligor") in any manner, whether directly
or indirectly, including, without limitation, any obligation of such Person,
whether or not contingent, (A) to purchase any such primary obligation or
any property constituting direct or indirect security therefor, (B) to
advance or supply funds (i) for the purchase or payment of any such primary
obligation or (ii) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (C) to purchase property, securities or services primarily
for the purpose of assuring the beneficiary of any such primary obligation of
the ability of the primary obligor to make payment of such primary obligation,
(D) for the obligations of a partnership in which such Person is a general
partner, or (E) otherwise to assure or hold harmless the beneficiary of such
primary obligation against loss in respect thereof; provided, however, that
the term Contingent Obligations shall not include the endorsement of
instruments for deposit or collection in the ordinary course of business. The
amount of any Contingent Obligation shall be deemed to be an amount equal to
the stated or determinable amount of the primary obligation in respect of
which such Contingent Obligation is made or, if not stated or determinable,
the maximum reasonably anticipated liability in respect thereof as determined
by Bank in good faith.
1.19 "CONVERTED TERM LOAN" means the consolidated and converted term loan
under paragraph 2.3(F) hereof.
1.20 "CURRENT ASSETS" means, at any date, all assets of a Person which,
in accordance with GAAP should be classified as current assets of such Person,
after deducting all reserves properly deductible in respect of such assets in
accordance with GAAP.
1.21 "CURRENT LIABILITIES" means, at any date, all indebtedness of a
Person which, in accordance with GAAP should be classified as current
liabilities of such Person, provided, however, that all Indebtedness with
respect to the revolving credit facility under paragraph 2.2 hereof and all
Indebtedness owing under any Subordinated Debt which is not then due and/or
past due shall not be considered current liabilities even if same should at
any point in time be classified as current liabilities under GAAP.
1.22 "CURRENT RATIO" means, at any date, Current Assets divided by
Current Liabilities.
1.23 "DEFAULT" means an event of the nature specified in Article VII
hereof and which, with the giving of notice or passage of time, or both, would
become an Event of Default.
1.24 "DOCUMENT(S)" shall have the meaning set forth in the Uniform
Commercial Code for such term.
1.25 "DUMPING" means the releasing, spilling, emptying, pouring, emitting,
dumping or other discharge of any substance into the envirorunent.
1.26 "EBITDA" means at any date the sum of (A) Net lncome, (i) excluding
any extraordinary and nonoperating income, of a Person for the preceding
twelve (12) months and (ii) any extraordinary and nonoperating losses during
such twelve (12) months but only in an amount up to any cash extraordinary and
nonoperating income during such twelve (12) months plus (B) any interest,
income taxes, depreciation, and amortization for such twelve (12) months to
the extent they were deducted from gross income to calculate Net Income
provided however, that for the purpose of this paragraph 1.26, to the extent
the Borrower has hedged the floating interest rate payable under any long term
Indebtedness by entering into a swap agreement (as defined in 11 U.S.C.
Section 101) with Bank or other counterparty satisfactory to Bank, interest
on such Indebtedness shall be based on the synthetic fixed rate payable by
the fixed rate payor under such swap agreement.
1.27 "ELIGIBLE ACCOUNT" means an Account which has been due for less than
sixty (60) days from its due date provided such due date is not greater than
thirty (30) days from the date of issuance of the invoice, and is, in all \
other respects, acceptable to Bank, but specifically, without limitation,
excluding any Ineligible Account.
1.28 "ELIGIBLE INVENTORY" means the raw material and finished goods of
Borrower that are non-obsolete and saleable in the ordinary course of
Borrower's business, and which are, in all other respects, acceptable to Bank.
1.29 "ELIGIBLE LOAN VALUE OF ELIGIBLE ACCOUNTS" means up to eighty (80%)
percent of the face amount of Eligible Accounts, less returns and discounts,
offsets, contra balances, credits or allowances of any nature, at any time
issued, owing, granted or outstanding.
1.30 "ELIGIBLE LOAN VALUE OF ELIGIBLE INVENTORY" means up to thirty (30%)
percent of the lesser of (A) the cost or (B) the wholesale market value,
calculated on a first in, first out basis, of Eligible Inventory.
1.31 "ENVIRONMENTAL LAWS" means (A) the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. 9601
et seq. ("CERCLA"), as amended by the Superfund Amendment and Reauthorization
Act of 1986; (B) the Resource Conservation and Recovery Act of 1976, as
amended (42 U.S.C. 6901 et seq.); (C) the Spill Compensation and Control Act
(N.J.S.A. 58:10-23.11 et seq.), (D) the Industrial Site Recovery Act (N.J.S.A.
13:IK-6 et seq.); (E) the Underground Storage Tanks Act (N.J.S.A. 58:IOA-21 et
seq and (F) any and all laws, regulations and executive orders, federal, state
and local, pertaining to environmental matters, as same may be amended or
supplemented from time to time.
1.32 "EQUIPMENT" means, in addition to the definition of equipment
contained in the Uniform Commercial Code, machinery and equipment of every
kind, nature and description, as well as trucks, vehicles of every nature and
description, including but not limited to trailers and the like, handling and
delivery equipment, cranes and hoisting equipment, fixtures, office machines
and furniture, whether affixed to realty or not.
1.33 "EQUIPMENT LINE" means the revolving credit facility to finance the
acquisition of Equipment under paragraph 2.3(A) hereof.
1.34 "EQUIPMENT LINE CONVERSION DATE" means that date on which the loans
under paragraph 2.3 of this Agreement are, in accordance with paragraph 2.3(F),
consolidated and converted into a term loan.
1.35 "EQUIPMENT LINE CONVERSION EXPIRATION DATE" means the earlier of (a)
September 1, 1997 or such later date as the Bank may agree to in writing in
its sole discretion, or (b) first day of the first month following the date
Bank has advanced the entire $1,500,000 of loans contemplated in paragraph
2.3(A) hereof.
1.36 "ERISA" means the Employee Retirement Income Security Act of 1974
as amended from time to time.
1.37 "EVENT OF DEFAULT" means an event of the nature specified in Article
VII hereof
1.38 "EXISTING SUBORDINATED DEBT" means (i) the Indebtedness of MAI under
the 5-1/2% Convertible Subordinated Debentures assumed by MAI and issued under
that certain Indenture dated as of September 15, 1982 between National Kinney
Corp. (now known as Andal Corp.) and Manufacturers Hanover Trust Company, as
original Trustee, as supplemented by a First Supplemental Indenture dated as
of January 12, 1982 between National Kinney Corp. and United States Trust
Company of New York, as trustee, and by a Second Supplemental Indenture dated
as of September 30, 1994 between Andal Corp., Multi-Arc Inc. and United
States Trust Company of New York (the "Indenture"); and (ii) those certain 6%
Convertible Subordinated Debentures due December 15, 2004 issued by MAI and
identified on schedule 1.38 annexed hereto (the "Debentures").
1.39 "EXPIRATION DATE" means the expiration date of the revolving credit
facility provided for and as set forth in paragraph 2.2 hereof or the date of
termination of said revolving credit facility pursuant to the terms hereof.
1.40 "FINANCIAL UNDERTAKING" of a Person means (i) any repurcbase
obigation or liability of such Person or any of its Subsidiaries with respect
to Accounts or notes receivable sold by such Person or any of its Subsidiaries,
(ii) any sale and leaseback transaction which does not create a liability on
the consolidated balance sheet of such Person and its Subsidiaries, if any,
(iii) any other transaction which is the functional equivalent of or takes the
place of borrowing but which does not constitute a liability on the
consolidated balance sheet of such Person and its Subsidiaries, or (iv) any
obligation under any "swap agreement" (as defined in 11 U.S.C. SectionlOl).
1.41 "GAAP" means generally accepted accounting principles in effect from
time to time in the United States of America.
1.42 "GENERAL lNTANGIBLES" shall mean all rights of Borrower as defined
in the Uniform Cormmercial Code including, hut not limited to, all rights to
property, choses in action and other rights of Borrower not otherwise
specifically included elsewhere in this Agreement, further including but not
limited to all present and future trademarks, trade names, service marks,
copyrights and patents, tax refunds and all rights under license agreements
for the use of same, and all rights of Borrower under any and all leases of
property, both real and personal.
1.43 "GOODS" means, in addition to the definition of goods as contained
in the Uniform Commercial Code, all articles of tangible personal property,
sold, supplied, leased or otherwise disposed of, represented by an Account.
1.44 "GOVERNMENTAL BODY" means any nation or government, any state or
other political subdivision thereof, any entity exercising executive,
legislative, judicial, regulatory or administrative functions of, or
pertaining to government or any court or arbitrator.
1.45 "GUARANTOR(S)" means Multi-Arc Management Corp., Multi-Arc Inc. (a
corporation organized under the laws of the province of Ontario), Multi-Arc
(U.K.) Limited and any future Subsidiary of any Borrower or any Guarantor.
1.46 "INDEBTEDNESS" means, as to any Person, at a particular time, all
items which, in accordance with GAAP, would be classified as liabilities on a
balance sheet of such Person as at such time and which constitute, without
duplication, (A) Indebtedness for borrowed money or the deferred purchase
price of Property (other than credit extended to such Person for the purchase
of goods in the ordinary course of business to the extent the same would
otherwise constitute Indebtedness), (B) indebtedness evidenced by notes,
bonds, debentures or similar instruments, (C) obligations under leases which,
in accordance with GAAP, are required to be capitalized on a balance sheet,
(D) obligations under conditional sales or other title retention agreements,
(E) indebtedness arising under letter of credit (both documentary and standby)
and acceptance facilities and the face amount of all letters of credit issued
for the account of such Person and, without duplication, all drafts drawn
thereunder to the extent such Person shall not have reimbursed the issuer in
respect of the issuer's payment of such drafts, (F) all liabilities secured by
any Lien on any property owned by such Person even though such Person has not
assumed or otherwise become liable for the payment thereof and liens for taxes,
assessments or similar charges incurred in the ordinary course of business to
the extent such liens are Permitted Encumbrances, (G) mandatory obligations of
such Person to redeem or purchase Stock or to purchase or repay Indebtedness,
(H) Contingent Obligations of such Person in respect of any of the foregoing,
and (I) any Financial Undertaking of a Person.
1.47 "INELIGIBLE ACCOUNTS" means those Accounts as to which any of the
following has occurred:
(A) a portion of the Goods or services giving rise to the Account are
returned, repossessed, lost or damaged;
(B) the Account Debtor disputes said Account;
(C) the termination of existence, insolvency, business failure or
suspension of business or appointment of a custodian, receiver or trustee of
any part of the property of, the making of an assignment for the benefit of
creditors of, calling of a meeting of the creditors of, or the commencement of
any bankruptcy, liquidation, reorganization or similar proceeding under state
or federal law against the Account Debtor;
(D) more than twenty-five (25%) percent of the aggregate Accounts due
from the Account Debtor remains unpaid past the applicable eligibility periods
set forth in the definition of Eligible Account;
(E) the Account is due from an employee, stockholder, Affiliate or
Subsidiary of Borrower;
(F) any of the representations set forth in Paragraph 4.9 are untrue with
respect to said Account;
(G) Borrower has failed with respect to said Account to comply with the
requirements of Paragraph 5.12 hereof;
(H) the Account arises out of a contract with any Governmental Body
unless all filings have been made under the Federal Assignment of Claims Act
or comparable state or other statute as may be required by the Bank with
regard to said Account;
(I) the Goods giving rise to said Account (i) are subject to any "bill
and hold" or similar arrangements, to the extent said Accounts arising from
"bill and hold" arrangements are in the aggregate, in excess of Three Hundred
Thousand Dollars ($300,000.00) or (ii) have been sold on approval or
consignment or sale or return basis, or under a repurchase or similar
agreement;
(J) the Account Debtor does not meet credit standards acceptable to Bank;
(K) except for Accounts of MAI Canada the Account is not payable in
United States Dollars or the Account Debtor is located outside the United
States except those Accounts which are supported by foreign credit insurance
or Letters of Credit satisfactory to and assigned to Bank;
(L) the Account Debtor is located in Minnesota or other jurisdiction
which requires a Notice of Business Activities Report or similar report to be
filed by Borrower or a Qualified Obligor, and Borrower or a Qualified Obligor
has not filed for the then current year the required report or is not
otherwise authorized to transact business in said jurisdiction;
(M) because of the nature of Borrower's or a Qualified Obligor's
ownership of assets or conduct of business, Borrower or a Qualified Obligor is
required by applicable law to be authorized to do business in the jurisdiction
where the Account Debtor is located and Borrower or a Qualified Obligor is not
so authorized;
(N) the Account is subject to any offset counterclaim or other claim or
defense on the part of the Account Debtor;
(O) the Account is subject to a Lien in favor of any Person other than
Bank;
(P) the Account is not a good and valid Account, representing an
undisputed bona fide indebtedness incurred by the Account Debtor therein named,
for a fixed sum as set forth in the invoice relating thereto with respect to
an absolute sale and delivery, upon the stated terms, of Goods sold and
delivered, or services actually rendered, by Borrower or a Qualified Obligor;
(Q) the Account is otherwise unacceptable to Bank;
(R) the Account arises out of a contract or purchase order for which a
surety bond was issued on behalf of Borrower or a Qualified Obligor;
(S) a Letter of Credit has been issued to Borrower or a Qualified Obligor
to secure payment of such Account unless (i) the issuer of such Letter of
Credit is acceptable to Bank, (ii) the original Letter of Credit has been
delivered to Bank, and (iii) the Letter of Credit has been transferred to Bank
or the bank issuing the Letter of Credit has been notified in writing of the
assignment by Borrower or such Qualified Obligor to Bank of the proceeds of
the Letter of Credit and to make payment of such proceeds to Bank; or
(T) a credit insurance policy has been issued in favor of Borrower or a
Qualified Obligor covering the Account unless (i) the issuer of such credit
insurance policy is acceptable to Bank, and (ii) the Bank is a beneficiary
under such policy.
1.48 "INVENTORY" means, in addition to the definition of inventory as
contained in the Uniform Commercial Code, all Goods held by Borrower or a
Qualified Obligor for resale or lease or furnished or to be furnished under
contracts of service, and shall include raw materials, goods and work in
process and finished goods, and all goods returned by or reclaimed from
customers.
1.49 "INSTRUMENT" means, in addition to the definition of instrument as
contained in the Uniform Commercial Code, a negotiable instrument or a
security, or any other writing which evidences a right to the payment of money
and is not itself a security agreement or lease and is of the type which is,
in the ordinary course of business, transferred by delivery with any necessary
endorsement or assignment.
1.50 "INTEREST PERIOD" means with respect to each Advance under the
Revolver or Equipment Line which is a Libor Loan, the period commencing on the
date such Advance commences to he a Libor Loan as elected by the Borrower and
ending one month thereafter and thereafter, each period commencing on the last
day of the immediately preceding Interest Period and ending one month
thereafter, but in no event after the Expiration Date, as to Advances under
the Revolver, and in no event after the Equipment Line Conversion Expiration
Date as to Advances under the Equipment Line and with respect to the Term Loan
under paragraph 2.1 hereof the term "Interest Period" means, initially, the
period commencing on the date hereof and ending on the Commencement Date, as
defined in paragraph 2.1, and thereafter, each period commencing on the last
day of the immediately preceding Interest Period and ending on the first (1st)
day of each month thereafter, and with respect to the Converted Term Loan
Interest Period means initially the period commencing on the Equipment Line
Conversion Date and ending on the first (1st) day of each month thereafter
and thereafter each period commencing on the last day of the immediately
preceding Interest Period and ending on the first (1st) day of each month
thereafter, subject, however, to the following provisions: (i) if any Interest
Period would otherwise end on a day which is not a New York business day, that
Interest Period shall be extended to the next succeeding New York business day
unless the result of such extension would be to carry such Interest Period
into another calendar month, in which event such Interest Period shall end on
the immediately preceding New York business day; and (ii) any Interest Period
that begins on the last New York business day of a calendar month (or on a day
for which there is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last New York business day
of a calendar month.
1.51 "INVESTMENT OBLIGATIONS" means any of the following: (A)
Obligations of or guaranteed by the United States of America; (B) Obligations
issued or guaranteed by any instrumentality or agency of the United States of
America, whether now existing or hereafter organized; (C) Obligations issued
or guaranteed by any state of the United States or the District of Columbia;
(D) Repurchase agreements fully secured by obligations of a kind specified in
(A), (B) or (C) above; (F) Interest-bearing accounts, certificates of deposit,
bankers acceptances or commercial paper of Bank or any Bank Affiliate and
investments in the Evergreen Funds; (F) Certificates of deposit of United
States banks having a ratio of Tier 1 capital of not less than six percent
(6%) and then in an amount not exceeding 10% of the issuing bank's unimpaired
capital and surplus. "Tier I capital" shall be defined from time to time
pursuant to regulations published by the Office of the Comptroller of the
Currency and the Federal Deposit Insurance Corporation.
1.52 "LETTER OF CREDIT" means a letter of credit issued in favor of
Borrower to secure payment of the sale of goods or of any Account or other
obligation due or to become due to Borrower.
1.53 "LIBOR" means, with respect to each day during each Interest Period,
the rate (rounded to the next higher 1/100 of 1%) for U.S. dollar deposits of
a one month maturity as reported on Telerate page 3750 as of 11:00 a.m.,
London time, on the second London business day before the relevant Interest
Period begins (or if not so reported, then as determined by the Bank from
another recognized source or interbank quotation), adjusted for reserves by
dividing that rate by 1.00 minus the Libor Reserve. Notwithstanding the
foregoing, if the Borrower has hedged the Libor based rate by entering into an
interest rate swap agreement with Bank, Libor shall be rounded five decimal
places in accordance with the 1991 ISDA Definitions published by the
International Swaps and Deriviates Association, Inc.
1.54 "LIBOR LOAN" means each Advance on which interest thereon is in
accordance with the terms of this Agreement, based on Libor.
1.55 "LIBOR MARGIN" means for each Interest Period applicable to Libor
Loans, a rate per annum equal to (A) one and thirty-five one hundredths of one
percent (1.35%) with respect to the Term Loan and the Converted Term Loan and
(B) one and sixty one hundredths of one percent (1.60%) with respect to
Advances under the Equipment Line and (C) one and ten one hundredths of one
percent (1.10%) with respect to Advances under the Revolver.
1.56 "LIBOR RESERVE" means tile maximum percentage reserve requirement
(rounded to the next higher 1/100 of 1% and expressed as a decimal) in effect
for any day during the Interest Period under the Federal Reserve Board's
Regulation D for Eurocurrency liabilities as defined therein.
1.57 "LIEN" means any mortgage, deed of trust, pledge, security interest,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory
or other), or preference, priority, or other security agreement, or
preferential arrangement, charge, or encumbrance of any kind or nature
whatsoever (including, without limitation, any coilditional sale or other
title retention agreement, any financing lease having substantially the same
economic cffect as any of the foregoing) and the filing of any financing
statement under the Uniform Commercial Code (or comparable law) of any
jurisdiction to evidence any of the foregoing.
1.58 "LOAN DOCUMENTS" means this Agreement, the 1994 Loan Agreement, all
notes, mortgages or other documents executed and delivered by Borrower or any
Obligor hereunder and thereunder, and any amendments, renewals, modifications
or supplements thereto, or substitutions therefor from time to time.
1.59 "LONDON BUSINESS DAY" means a day on which commercial banks are open
for dealings in U.S. Dollar deposits in the London (England, U.K.) interbank
market.
1.60 "MAI NOTE" means that certain promissory note in the principal sum
of $6,000,000.00 by MAI to Vagle dated September 30, 1994, and all amendments,
modifications and extensions thereof and renewals and substitutions thereof.
1.61 "MANAGEMENT NOTE" means those certain promissory notes to the order
of MAI identified on schedule 1.61 annexed hereto.
1.62 "MATERIAL ADVERSE CHANGE" means, as to a Person, a material adverse
change in the financial condition, operations, business, prospects or property
of such Person.
1.63 "MATERIAL ADVERSE EFFECT" means, as to a Person, a material adverse
effect on the financial condition, operations, business, prospects or property
of such Person.
1.64 "NATURAL RESOURCES" means each and all of the atmosphere, alr,
waters, earth, land, minerals, flora, fauna, fish, shellfish, wildlife,
biota and/or other natural resources.
1.65 "NET INCOME" means the net after tax income of a Person determined
in accordance wiLil GAAP.
1.66 "OBLIGATION" or "OBLIGATIONS" means any and all loans, advances,
Bank Letters of Credit, Bankers Acceptances and other financial accommodations
made by Bank or any Bank Affiliate prior to, on and after the date of this
Agreement to, or on the account of Borrower, and any and all interest, fees,
late fees, attorney's fees and costs, commissions, obligations, liabilities,
indebtedness, charges and expenses, direct or indirect, primary, secondary,
contingent, joint or several which are due or to become due or that may
hereafter be contracted or acquired of Borrower to Bank or any Bank Affiliate,
no matter how or when arising and whether under any present or future Loan
Agreement or other agreement or instrument between Borrower and Bank or any
Bank Affiliate, including "swap agreements" (as detined in 11 U.S.C. Section
101) or otherwise, and the amount due or to become due upon any notes,
reimbursement agreement or other obligations given to, or received by, Bank or
any Bank Affiliate or on account of any of the foregoing and the performance
and fulfillment by Borrower and each Obligor of all the terms, conditions,
promises, covenants and provisions contained in the Loan Documents, or in any
future agreement or instrument between Borrower or any Obligor and Bank or any
Bank Affiliate including without limitation the obligations of Guarantors to
Bank.
1.67 "OBLIGOR" means the Borrower hereunder, all sureties and guarantors
and, if any debt due to Bank hereunder is evidenced by a note or other
instrument, the makers and endorsers thereof.
1.68 "PAYMENT DATE" means (A) with respect to Prime Rate Loans the first
day of each month, and (B) with respect to Libor Loans the last day of the
Interest Period.
1.69 "PERMITTED ENCUMBRANCES" means (A) Liens for taxes, assessments or
governmental charges or levies on property of Borrower if the same shall not
at the time be delinquent or thereafter can be paid without penalty, or are
being diligently contested in good faith and by appropriate proceedings and
against which Borrower has established adequate reserves, (B) Liens imposed by
law, such as carriers, warehousemen and mechanics Liens, and Liens incurred in
connection with construction or other similar Liens arising in the ordinary
course of business provided same are not at the time due and payable, (C)
Liens arising out of pledge or deposits under workers compensation law,
unemployment insurance, old age pension or other social security or retirement
benefit or similar legislation, (D) Liens arising from judgments or awards
with respect to which Borrower shall be diligently and in good faith
prosecuting an appeal or proceedings for review and shall have secured a stay
of execution pending such appeal or review, (E) Liens in favor of Bank or any
Bank Affiliate, (F) Existing liens on specific items of Equipment identified
on schedule 1.69 annexed hereto securing existing Indebtedness set forth on
said schedule, and (G) Future purchase money security interests in hereafter
acquired items of Equipment provided same secure Permitted Indebtedness under
paragraph 1 .70(H) below.
1.70 "PERMITTED INDERTEDNESS" means (A) indebtedness to Bank or any Bank
Affiliate, and (B) Subordinated Debt consented to in writing by Bank or
permitted by the terms hereof, (C) the existing Indebtedness identified on
schedule 1.70 annexed hereto, (D) Indebtedness of any Borrower to any other
Borrower or any Guarantor, or Indebtedness of any Guarantor to any other
Guarantor or Indebtedness of any Guarantor to any Borrower, (E) the
Indebtedness of MAI under the MAI Note, (F) the Indebtedness of Vagle under
the Vagle Note, (G) the Existing Subordinated Debt, (H) the Indebtedness of
MAI to Andal Corp. in accordance with the Second Supplemental Indenture dated
September 30, 1994 between Andal Corp., MAI and United States Trust Company of
New York, as trustee, provided such Indebtedness does not require any payment
thereof earlier than the dates the payments on the Existing Subordinated Debt
would have been due absent conversion and provided further such Indebtedness
is Subordinated Debt, and (I) purchase money indebtedness up to $100,000.00
per annum, on a non cumulative basis with respect to the acquisition of items
of Equipment.
1.71 "PERSON" means any individual, sole proprietorship, partnership,
joint venture, trust, unincorporated organization, association, corporation,
institution, entity, party or government (whether national, federal, state,
county, city, municipal or otherwise, including, without limitation, any
instrumentality, division, agency, body or department thereof).
1.72 "PLAN" means an employee benefit plan or other plan maintained for
employees of Borrower and covered by Title IV of ERISA.
1.73 "PRIME RATE" means the rate of interest established by Bank from
time to time as its reference rate in making loans but which does not reflect
the rate of interest charged to any particular Person and is not tied to any
external rate of interest or index. The rate of interest charged hereunder
shall change automatically and immediately as of the date of each change in
the Prime Rate without notice to Borrower.
1.74 "PRIME RATE LOANS" means each Advance on which interest thereon is
in accordance with the terms of this Agreement based on the Prime Rate.
1.75 "PRIME RATE MARGIN" means a rate per annum equal to one quarter of
one (.25%) percent.
1.76 "REVOLVER" means the revolving credit facility under paragraph 2.2
hereof.
1.77 "REPORTABLE EVENT" has the meaning assigned to such term in Title IV
of ERISA, or regulations issued thereunder other than a Reportable Event not
subject to the provision for a thirty (30) day notice to the Pension Benefit
Guaranty Corporation under such regulations.
1.78 "QUALIFIED OBLIGOR" means MAI-Canada and any entity hereafter formed
and which is a Subsidiary of Borrower or any Guarantor and which operates a
business in a jurisdiction in the United States of America and which business
is of the same nature as the business currently operated by Borrower and which
entity has executed and delivered to Bank a guaranty of all Obligations of
Borrower to Bank and a security agreement in favor of Bank granting to Bank a
first priority and exclusive security interest in all of its assets together
with such resolutions, UCC-1 financing statements and other documents and
instruments as Bank may reasonably request, such guaranty, security agreement
and other documents and instruments to be in form and substance satisfactory
to Bank and such entity has complied with and continues to comply with the
covenants provided for herein applicable to a Qualified Obligor.
1.79 "SUBORDINATED DEBT" means all Indebtedness of a Person permitted by
this Agreement or any other Loan Document and which is subordinated to payment
in full of all Obligations of such Person to Bank pursuant to a debt
subordination agreement in form and substance satisfactory to Bank.
1.80 "SUBSIDIARY" means any corporation of which more than fifty (50%)
percent of the outstanding capital stock having ordinary voting power to elect
a majority of the board of directors of such corporation (irrespective of
whether, at the time, stock of any other class or classes of such corporation
shall have or might have voting power by reason of the happening of any
contingency) is at the time, directly or indirectly, owned by Borrower or any
Obligor or one or more Subsidiaries.
1.81 "TANGIBlE CAPTAL FUNDS" means the Tangible Net Worth of a Person
plus the outstanding principal amount of all Subordinated Debt of such Person.
1.82 "TANGIBLE NET WORTH" means Total Assets, less (without limitation
and without duplication of deductions) the sum of (A) Total Liabilities of a
Person, (B) any reserves established by a Person for anticipated losses or
expenses, (C) the amount, if any, of all intangible items including any
leasehold rights, the amount of any investment in any Affiliate or other
entity including a Subsidiary, good will (including any amounts, however
designated on the balance sheet, representing the cost of acquisition of
business and investments in excess of underlying tangible assets), unamortized
debt discount, marketing expenses and customer and/or mailing lists (other
than trademarks, trademark rights, trade name rights, copyrights, patents,
patent rights and licenses),and (D) all amounts due from employees,
stockholders, Affiliates and Subsidiaries.
1.83 "TERM LOAN" means the Seven Million Dollar ($7,000,000.00) term
loan under paragraph 2.1 hereof.
1.84 "TOTAL ASSETS" means, at any date, the amount shown on the books
and records of a Person, determined in accordance with GAAP, of all property,
both real and personal, of a Person.
1.85 "TOTAL LIABILITIES" means, at any date, the amount of all
liabilities which, in accordance with GAAP should be included in determining
total liabi]ities as shown on a liability side of a balance sheet of a Person
at such date.
1.86 "UNIFORM COMMERCIAL CODE" means the Uniform Commercial Code as
adopted and in effect under the laws of the State of New Jersey.
1.87 "VAGLE NOTE" means that certain promissory note in the principal sum
of $6,000,000.00 by Vagle Technology, Inc. to SCI-Michigan, SCI and SCI-Texas
dated September 20,1994 and all amendments, modifications and extensions
thereof and renewals and substitutions thereof.
1.88 "WORKING CAPITAL" means Current Assets minus Current Liabilities.
1.89 "INTERPRETATION AND CONSTRUCTION"
(a) The terms "hereby," "hereof," "hereto," "herein," "hereunder"
and any similar terms, as used in this Agreement, refer to this Agreement in
its entirety and not any particular Article or paragraph, and the term
"hereafter" means after, and the term "heretofore" means before, the date of
delivery of this Agreement;
(b) Words importing a particular gender mean and include every other
gender, and words importing the singular number mean and include the plural
number and vice versa.
II
LOANS
2.1 TERM LOAN
(A) TheLoan. Bank will, under this Agreement and approximately
simultaneously with the execution hereof, loan to Borrower the sum of Seven
Million Dollars ($7,000,000.00) to be evidenced by a promissory note in the
form of Exhibit 2.1 annexed hereto. The principal balance of the Term Loan
shall be repayable in eighty-three (83) consecutive monthly installments of
principal of Eighty-Three Thousand Three Hundred Thirty-Three and 34/100
Dollars ($83,333.34) each, commencing on October 1, 1996, and continuing on
the same day of each month thereafter through and including August 1, 2003,
and a final installment of principal of the entire unpaid principal balance
and all accrued and unpaid interest, due and payable on September 1, 2003.
Interest only on the outstanding principal balance from the date hereof to
September 1, 1996 (the "Commenencement Date") shall be due and payable on the
Commencement Date. Thereafter, interest shall be due and payable on the last
day of each Interest Period.
(B) Interest Rate. Interest will be charged on the outstanding principal
balance of the Term Loan from the date hereof until the full amount of
principal of the Term Loan has been paid at a rate equal to LIBOR pius one and
thirty-five one hundredths percent (1.35%) per annum ("LIBOR-Based Rate"), as
determined by the Bank prior to the commencement of each Interest Period. The
Libor-Based Rate shall remain in effect, subject to the provisions hereof,
from and including the first day of the Interest Period to and excluding the
last day of the Interest Period for which it is determined.
(C) Prepayment. The Term Loan may he prepaid, in whole or in part, only
on the last day of an Interest Period; provided, however, that any partial
prepayments shall be in a principal amount of not less than $250,000.00 or
multiples thereof. Any prepayment shall include accrued and unpaid interest to
the date of prepayment on the principal amount prepaid and all other sums due
and payable hereunder and under the Note. All prepayments shall be applied to
the principal installments on the Term Loan in their inverse order of maturity.
No prepayment shall affect Borrowers obligations under any swap.
2.2 REVOLVING CREDIT FACILITY
(A) Facility. So long as no Default nor Event of Default exists, Bank
shall, from time to time hereafter, through September 1, 1999 or such later
date as Bank may agree to in writing (the "Expiration Date"), lend to, or make
financial accommodations by way of Bank Letters of Credit on behalf of and for
the benefit of, Borrower, such amounts as the Borrower may request, based upon
the Eligible Loan Value of Eligible Accounts Receivable and the Eligible Loan
Value of Eligible Inventory as may exist from time to time, but not to exceed
the Borrowing Base, and as may be reported by Borrower to Bank on a borrowing
base report in the form of Exhibit 2.2 which is to be submitted by Borrower to
Bank on a monthly basis and within twenty (20) days of end of each month. All
documentary letters of credit to be issued hereunder shall expire no more than
One Hundred Twenty (120) days from their date of issuance and all standby
letters of credit shall expire no more than one )1) year from their date of
issuance, but not beyond the Expiration Date. Each month Bank may render to
Borrower a statement of the status of the loans provided for herein, which
Borrower hereby agrees shall be deemed to be an account stated and correct
and acceptable to and binding on Borrower unless Bank shall receive a
corrected statement of exceptions from Borrower within thirty (30) days after
the monthly statements have been rendered to Borrower. Borrower shall pay to
Bank a fee of one (1%) percent on a per annum basis of the principal amount of
all standby letters of credit issued under this Paragraph 2.2. For all
documentary letters of credit issued hereunder Borrower shall pay an issuance
fee in accordance with Bank's standard fee schedule in effect from time to
time. Borrower shall execute and deliver to Bank the Banks standard letter of
credit application and reimbursement agreement for each Bank Letter of Credit
to be issued hereunder together with such other documents as may be required
from time to time by Bank for the issuance of Bank Letters of Credit. All
such loans and financial accommodations shall be payable on the Expiration
Date or as otherwise set forth in this Agreement and shall be evidenced by a
promissory note in the form of Exhibit 2.2 annexed hereto. If, on the
Expiration Date, there are any outstanding Bank Letters of Credit, Borrower
shall, in addition to paying and satisfying in full the outstanding loans
under this paragraph, pay to Bank an amount equal to the aggregate outstanding
balance of all such Bank Letters of Credit and which shall automatically be
subject to a Lien in favor of Bank to secure all Obligations to Bank including
with respect to said Bank Letters of Credit. Any sums paid to Bank shall be
applied first to the Obligations of Borrower to Bank other than with respect
to said Bank Letters of Credit, in such order as Bank may determine, and last
to the Obligations with respect to the Bank Letters of Credit.
Notwithstanding the expiration of the term, the rights of Bank hereunder and
the obligations of Borrower hereunder, including any Obligations with respect
to loans and other financial accommodations made after the Expiration Date,
further including but not limlted to the grant of security interests in and
Liens on the Collateral as set forth in Article Ill hereof, shall remain in
full force and effect until all of the Obligations of Borrower to Bank and
each Bank Affiliate are satisfied in full.
(B) Interest on Advances.
(i) The Borrower agrees to notify the Bank orally or in writing, by
11:00a.m. local time, at least two (2) Business Days (with respect to Libor
Loans) prior to each date it requests interest on the Advances under the
Revolver, or a portion thereof, to be based on Libor. Each such notice shall
be irrevocable and confirmed immediately by delivery to the Bank of a Libor
rate request. Each Libor rate request shall specify:
(a) the date from which interest is to accrue based on Libor,
which shall be a London Business Day; and
(b) the aggregate amount of Advances on which interest is to be
based on Libor;
(ii) No more than three (3) Interest Periods with respect to LIBOR
Loans shall be outstanding at any time.
(iii) All Libor Loans shall be in the principal amount of Two
Hundred Fifty Thousand and 00/100 ($250,000.00) Dollars or an integral
multiple thereof.
(iv) On all Advances as to which Borrower has not, in accordance
with the foregoing, selected to have interest based on Libor, interest shall
be based on the Prime Rate as set forth in subparagraph (C)(i) below.
(C). Interest Rate and Payment Dates
(i) Each Prime Rate Loan shall bear interest on the daily
outstanding principal amount thereof for each day such Prime Rate Loan is
outstanding at a rate per annum equal to the Prime Rate in effect from time to
time minus the Prime Rate Margin. Such interest shall be payable in arrears
on each Payment Date.
(ii) Each Libor Loan shall bear interest for each Interest Period
applicable thereto, on the daily outstanding principal amount thereof, at a
rate per annum equal to Libor plus the applicable Libor Margin. Interest
shall be payable in arrears for each Interest Period on each Payment Date.
(iii) If all or a portion of the principal amount of any Liber Loan
shall not be paid at the end of the applicable Interest Period or not
continued as a Libor Loan as set forth below, such Advance shall be converted
to a Prime Rate Loan at the end of the last Interest Period therefor.
(D) Conversion and Continuation Options.
(i) The Borrower may elect from time to time to convert a Libor Loan
to a Prime Rate Loan by giving the Bank at least one (1) Business Day's prior
irrevocable notice of such election, provided that conversion of a Libor Loan
to a Prime Rate Loan shall only be made on the last day of an Interest Period
with respect thereto. The Borrower may elect from time to time to convert a
Prime Rate Loan to a Libor Loan, in each case by giving the Bank by 11:00 a.m.
local time at least two (2) Business Days' prior irrevocable notice of such
election. Each notice to be given by the Borrower pursuant to this paragraph,
shall be confirmed by delivery to the Bank of a written notice, which shall
specify:
(a) the date on which such rate conversion shall take effect;
(b) the aggregate amount of the Advances to be converted on such
date;
(c) whether the Advances to be converted are Libor Loans, or Prime
Rate Loans; and
(d) whether the Advances, after conversion, will be Libor Loans or
Prime Rate Loans; and
All or any part of the outstanding principal of a Libor Loan, or a Prime
Rate Loan, may be converted as provided herein, provided that partial
conversions shall be in an aggregate principal amount of a minimum of Two
Hundred Fifty Thousand ($250,000.00) Dollars or an integral multiple thereof.
(ii) A Libor Loan may be continued as such upon the expiration of
an Interest Period with respect thereto by compliance by the Borrower with the
notice provisions contained in this paragraph, provided that a Libor Loan may
not be continued as such when any Event of Default has occurred and is
continuing, but shall be automatically converted to a Prime Rate Loan on the
last day of the subject Interest Period.
(iii) If the Borrower shall fail to give notice to convert or
continue a Libor Loan in the manner required by paragraphs (i) or (ii) above,
the Borrower shall be deemed to have elected to convert the Libor Loan to a
Prirne Rate Loan on the last day of the Interest Period applicable thereto;
(E) Prepayment. Prime Rate Loans may be prepaid in whole or in part, in
multiples of $50,000.00, at any time without premium or penalty. Libor Loans
may be prepaid, in whole or in part, only on the last day of an Interest
Period; provided, however, that any partial prepayments shall be in a
principal amount of not less than $250,000.00, or multiples thereof. Any
prepayment shall include accrued and unpaid interest to the date of prepayment
on the principal amount prepaid and all other sums due and payable hereunder.
All payments received on the Advances may be applied in such order as the Bank
in its sole discretion shall determine.
(F) Procedures For Advances Under the Revolver. Borrower shall provide
Bank with at least one (1) Business Day's oral notice of the requested Advance,
(or two (2) Business Days with respect to Libor Loans) specifying the date
(the "Loan Date") and amount, which oral notice shall be promptly confirmed in
writing by Borrower by a Notice of Borrowing under Revolving Credit in the
form of exhibit 2.2(F) annexed hereto. Bank shall, on or after 1:00 P.M. (New
York time) of the Loan Date, make the amount of the requested loan available
to Borrower, provided all conditions precedent to such loan have been met or
satisfied.
2.3 "EQUIPMENT LINE" (A) Loans At the request of Borrower Bank shall
from time to time hereafter through the earlier of the Equipment Line
Conversion Date or the Equipment Line Conversion Expiration Date make loans to
Borrower up to the aggregate principal sum of One Million Five Hundred
Thousand ($1,500,000.00) Dollars. The proceeds of thie loans shall be used by
Borrower solely to purchase items of new or used Equipment. As a condition
precedent to each loan, each of the following shall exist:
(i) No Default nor Event of Default shall exist;
(ii) Each representation and warranty of Borrower herein shall be
true and accurate as of the date of each loan and other financial
accommodation;
(iii) Borrower shall deliver to Bank such documents, certificates,
bills of sale or title evidencing that the Equipment has been delivered to,
and accepted by Borrower, that such Equipment is owned by Borrower free and
clear of any Liens, claims and encumbrances, and establishing the purchase
price thereof and the location thereof;
(iv) With respect to loans to be used to acquire items of new
Equipment each loan shall not exceed eighty (80%) percent of the purchase
price of the Equipment for which the loan is requested;
(v) With respect to loans to be used to acquire items of used
Equipment each such loan shall not exceed fifty (50%) percent of the purchase
price of the Equipment for which the loan is requested.
(vi) Borrower shall deliver to Bank such documents and instruments
as Bank and its counsel may deem necessary to perfect Bank's interest in the
Collateral, including, but not limited to, UCC-1 financing statements;
(vii) Bank shall be in receipt of such UCC and other search results,
information and documents as are necessary, in its opinion, to ensure that its
interest in the item of Equipment will be a first priority and exclusive
security interest, and
(viii) Borrower shall execute and deliver to Bank a duly completed
Notice of Borrowing under Equipment Line in the form of Exhibits 2.3.
The loans hereunder shall be evidenced by a promissory note in the form of
exhibit 2.3(A) annexed hereto. Absent conversion to a term loan as set forth
below, the outstanding principal balance of all such loans and all accrued and
unpaid interest shall be due and payable on the Equipment Line Conversion
Expiration Date.
(13) Interest on Advances.
(i) The Borrower agrees to notify the Bank orally or in writing, by
11:00 am. local time, at least two (2) Business Days (with respect to Libor
Loans) prior to each date it requests interest on the Advances under the
Equipment Line, or a portion thereof, to be based on Libor. Each such notice
shall be irrevocable and confirmed immediately by delivery to the Bank of a
Libor rate request. Each Libor rate request shall specify:
(a) the date from which interest is to accrue based on Libor,
which shall be a London Business Day; and
(b) the aggregate amount of Advances on which interest is to
be based on Libor;
(ii) No more than three (3) Interest Periods with respect to LIBOR
Loans shall be outstanding at any time.
(iii) All Libor Loans shall be in the principal amount of Two
Hundred Fifty Thousand and 00/100 ($250,000.00) Dollars or an integral
multiple thereof.
(iv) On all Advances as to which Borrower has not, in accordance
with the foregoing, selected to have interest based on Libor, interest shall
be based on the Prime Rate as set forth in subparagraph (C)(i) below.
(C). Interest Rate and Payment Dates
(i) Each Prime Rate Loan under the Equipment Line shall bear
interest on the daily outstanding principal amount thereof for each day such
Prime Rate Loan is outstanding at a rate per annum equal to the Prime Rate in
effect from time to time. Such interest shall be payable in arrears on each
Payment Date.
(ii) Each Libor Loan shall bear interest for each Interest Period
applicable thereto, on the daily outstanding principal amount thereof, at a
rate per annum equal to Libor plus the applicable Libor Margin. Interest shall
be payable in arrears for each Interest Period on each Payment Date.
(iii) If all or a portion of the principal amount of any Libor
Loan shall not be paid at the end of the applicable Interest Period or not
continued as Libor Loan as set forth below, such Advance shall be converted to
a Prime Rate Loan at the end of the last Interest Period therefor.
(D) Conversion and Continuation Options.
(i) The Borrower may elect from time to time to convert a Libor
Loan to a Prime Rate Loan by giving the Bank at least one (1) Business Day's
prior irrevocable notice of such election, provided that conversion of a Libor
Loan to a Prime Rate Loan shall only be made on the last day of an Interest
Period with respect thereto. The Borrower may elect from time to time to
convert a Prime Rate Loan to a Libor Loan, in each case by giving the Bank by
11:00 am. local time at least two (2) Business Days' prior irrevocable notice
of such election. Each notice to be given by the Borrower pursuant to this
paragraph, shall be confirmed by delivery to the Bank of a written notice,
which shall specify:
(a) the date on which such rate conversion shall take effect;
(b) the aggregate amount of the Advances to be converted on such
date;
(c) whether the Advances to be converted are Libor Loans, or Prime
Rate Loans; and
(d) whether the Advances, after conversion, will be Libor Loans or
Prime Rate Loans; and
All or any part of the outstanding principal of a Libor Loan, or a Prime
Rate Loan, may be converted as provided herein, provided that partial
conversions shall be in an aggregate principal amount of a minimum of Two
Hundred Fifty Thousand ($250,000.00) Dollars or an integral multiple thereof.
(ii) A Libor Loan may be continued as such upon the expiration of
an Interest Period with respect thereto by compliance by the Borrower with the
notice provisions contained in this paragraph, provided that a Libor Loan may
not be continued as such when any Event of Default has occurred and is
continuing, but shall be automatically converted to a Prime Rate Loan on the
last day of the subject Interest Period.
(iii) If the Borrower shall fail to give notice to convert or
continue a Libor Loan in the manner required by paragraphs (i) or (ii) above,
the Borrower shall be deemed to have elected to convert the Libor Loan to a
Prime Rate Loan on the last day of the Interest Period applicable thereto;
(E) Prepayment. Prime Rate Loans may be prepaid in whole or in part,
in multiples of $50,000.00, at any time without premium or penalty. Libor
Loans may be prepaid, in whole or in part, only on the last day of an Interest
Period; provided, however, that any partial prepayments shall be in a
principal amount of not less than $250,000.00, or multiples thereof. Any
prepayment shall include accrued and unpaid interest to the date of prepayment
on the principal amount prepaid and all other sums due and payable hereunder.
All payments received on the Advances may be applied in such order as the Bank
in its sole discretion shall determine.
(F) Converted Term Loan (i) Provided (a) no Default nor Event of
Default exists, (b) the Borrower furnishes to Bank at least two (2) Business
Days notice of its election to convert all of the loans under Paragraph 2.3(A)
to a term loan specifying the Equipment Line Conversion Date, which date shall
be the first day of a month and shall not be later than the Equipment Line
Conversion Expiration Date, and (c) the Borrower executes and delivers to
Bank a duly completed promissory note in the form of Exhibit 2.3(F) hereto,
(d) the Borrower pays to Bank a conversion fee of one quarter of one percent
(1/4%) of the principal amount of Advances under the Equipment Line to be
converted to a term loan and (e) Borrower has hedged the floating interest
rate on said Converted Term Loan by entering into a swap agreement as required
by paragraph 5.18 hereof, the outstanding principal balance of all loans under
Paragraph 2.3(A) shall on the Equipment Line Conversion Date be consolidated
and converted to a term loan, the principal sum of which shall be payable in
equal consecutive monthly installments of principal, each equal to 1/60th of
the sum of the amount so consolidated and converted to a term loan except for
the final installment which shall be the unpaid principal balance. The first
such installment shall be payable on the first day of the first month
following the Equipment Line Conversion Date, and said installments shall
continue on the same day of each month thereafter.
(ii) Interest Rate. Interest will be charged on the outstanding principal
balance of the Converted Term Loan from the Equipment Line Conversion Date
until the full amount of principal of the Converted Term Loan has been paid at
a rate equal to LIBOR plus one and thirty-five one hundredths percent (1.35%)
per annum ("LIBOR-Based Rate"), as determined by the Bank prior to the
commencement of each Interest Period. The Libor-Based Rate shall remain in
effect, subject to the provisions hereof, from and including the first day of
the Interest Period to and excluding the last day of the Interest period for
which is determined. Said interest shall be payable on the last day of each
Interest Period.
(iii) Prepayment. The Converted Term Loan may be prepaid, in whole or in
part, only on the last day of an Interest Period, provided, however, that any
partial prepayments shall be in a priucipal amount of not less than $250,000.00
or multiples thereof. Any prepayment shall include accrued and unpaid interest
to the date of prepayment on the principal amount prepald and all other sums
due and payable hereunder and under the Note. All prepayments shall be applied
to the principal installments on the Converted Term Loan in their inverse
order of maturity. No prepayment shall affect Borrowers obligations under any
swap.
2.4 CERTAIN PROVISIONS AS TO ALL LIBOR LOANS (A) Indemnification. The
Borrower shall indemnify the Bank against the Bank's loss or expense in
employing deposits as a consequence of (i) the Borrower's failure to make any
payment when due under the Advances, or (ii) any prepayment of a Libor Loan on
a date other than the last day of the applicable Interest Period
("Indemnified Loss or Expense").
(B) Additional Costs. If, at any time, a new, or a revision in any
existing law or interpretation or administration (including reversals) thereof
by any government authority, central bank or comparable agency imposes,
increases or modifies any reserve or similar requirement against assets,
deposits or credit extended by the Bank, or subjects the Bank to any tax, duty
or other charge (except tax on the Bank's net income), and any of the
foregoing increases the cost to the Bank of maintaining its commitment or
reduce the amount of any sum received or receivable by the Bank under the
Advances, within 15 days after demand by the Bank, the Borrower agrees to pay
the Bank such additional amounts as will compensate the Bank for such
increased costs or reductions ("Additional Costs").
(C) Match Funding. The amount of such (i) Indemnified Loss or
Expense, or (ii) Additional Costs outlined above shall be determined, in the
Bank's sole discretion, based upon the assumption that the Bank funded 100% of
that portion of the Advances to which the Libor-based rate applies in the
applicable London interbank market.
(D) Unavailability of Interest Rate. If, at any time, (i) the Bank
shall detennine that, by reason of circumstances affecting foreign exchange
and interbank markets generally, Libor deposits in the applicable amounts are
not being offered to the Bank; or (ii) a new, or a revision in any existing
law or interpretation or administration (including reversals) thereof by any
government authority, central bank or comparable agency shall make it unlawful
or impossible for the Bank to honor its obligations under the Advances, then
(A) the Bank's obligation, if any, to make or maintain a Libor Loan shall be
suspended, and (B) the applicable Libor-based rate shall, for the remainder of
the term of the Loan, immediately be converted to the Prime Rate plus the
Prime Rate Margin.
2.5 PAYMENT AND COMPUTATION (A) Business Day. Whenever any payment
to be made hereunder or under any note issued hereunder shall be stated to be
due on other than a Business Day, such payment may be made on the next
succeeding Business Day, unless such Business Day falls in the next succeeding
calendar month, in which case, such payment shall be made on the next
preceding Business Day. Any such alteration of time shall, in such case, be
included in the computation of payment of interest. All payments (including
prepayments) made by Borrower on account of principal of or interest on the
loans hereunder shall be made without set-off or counterclaim and shall be
made prior to 3:00 p.m. (New York City time) on the date such payment is due,
to Bank, in each case in lawful money of the United States of America and in
immediately available funds. The failure of Borrower to make any such payment
by 3:00 p.m. (New York City time) on such due date shall not constitute a
Default or Event of Default hereunder, provided that such payment is made on
such due date, but any such payment received by Bank on any Business Day after
3:00 p.m. (New York City time) shall be deemed to have been received on the
immediately succeeding Business Day for the purpose of calculating any
interest payable in respect thereof.
(B) Debiting of Account. The Borrower agrees to maintain an account
at the Bank continuously until the Obligations owing hereunder are paid in full.
That account is account #2030161642993 (the "Deposit Account"). The Bank may,
and the Borrower authorizes the Bank to, debit the Deposit Account for the
amount of any payment as and when such payment becomes due hereunder.
Notwithstanding the foregoing, the Bank and any Affiliate may, and the
Borrower authorizes the Bank and any Bank Affiliate to, debit any account and/
or certificate of deposit maintained by the Borrower with the Bank or any Bank
Affiliate for the amount of any payment, as and when such payment becomes due
hereunder, whether such payment is for accrued interest, principal or expense,
even if debiting such account results in a loss or reduction of interest to \
the Borrower or the imposition of a penalty applicable to the early withdrawal
of time deposits. Such authorization shall not affect the Borrower's
obligation to pay when due all amounts payable hereunder, whether or not there
are sufficient funds in any accounts of the Borrower. The Borrower agrees to
fund the Deposit Account from time to time in amounts sufficient to make the
payments hereunder as and when they become due. The foregoing rights of the
Bank and each Bank Affiliate to debit the Borrower's accounts shall be in
addition to, and not in limitation of, any rights of set-off which the Bank
and/or any Bank Affiliate may have hereunder or under any Loan Document.
(C) Computation. Interest and any fees or compensation based upon a
per annum rate shall be calculated on the basis of a 360 day year for the
actual number of days elapsed.
2.6 FEES
(A) Revolver Commitment Fee. On the first Business Day after the end of
each calendar quarter hereafter, Borrower shall pay to Bank a commitment fee
equal to one quarter of one (1/4%) percent on a per annum basis, of the amount
by which the average daily outstanding balance of the loans and Bank Letters
of Credit under the Revolver are less than the maximum dollar amount of the
Revolver as may be reduced from time to time under subparagraph (B) hereof.
(B) Reduction of Revolver Commitment. Borrower shall have the right, at
any time and from time to time, to reduce or terminate the Revolver upon not
less than five (5) Business Days' prior written notice to Bank, which notice
shall specify the effective date thereof and the amount of such reduction.
Any partial reduction shall be in whole multiples of Two Hundred Fifty
Thousand and 00/100 ($250,000.00) Dollars, and shall be irrevocable and
effective only upon receipt by Bank. If the outstanding amount of the loans
and other financial accomodations under the Revolver is greater than the
remaining amount of the maximum dollar amount of said Revolver, Borrower shall,
on the effective date of such reduction or termination, prepay the outstanding
loans by an amount necessary so as to have the outstanding amount of the loans
not exceed the remaining amount of the maximum amount of said Revolver.
(C) Facility Fee. Contemporaneous with the execution hereof
Borrower shall pay to Bank a facility fee of $50,000.00.
(D) Equipment Line Commitment Fee. On the first Business Day after
the end of each calendar quarter hereafter, through the Equipment Line
Conversion Date, and on the Equipment Line Conversion Date, Borrower shall pay
to Bank a commitment fee equal to one quarter of one (1/4%) percent on a per
annum basis, of the daily undisbursed portion of the maximum dollar amount of
the Equipment Line.
(E) Late Charge. If any payment hereunder is not paid in full when
the same is due, the Bank may collect from the Borrower a fee on such unpaid
amount equal to five percent (5%) of such amount.
2.7 MANDATORY PREPAYMENT OF REVOLVER. If on any day the sum of the
aggregate outstanding principal balance of the loans and other financial
accommodations under the Revolver shall exceed the Borrowing Base, Borrower
shall, on such day, prepay such loans and other financial accommodations by
an amount equal to such excess. Any mandatory prepayment under this paragraph
shall be applied first to Prime Rate Loans, and second to Libor Loans, and as
to Libor Loans, if more than one (1) Interest Period is in effect, then to
such Libor Loans in the order of the Interest Periods with the shortest
remaining number of days.
2.8 CONDITIONS TO INITIAL LOAN. The obligation of Bank to execute this
Agreement and to make the initial loan or other financial accommodations
hereunder is subject to the satisfaction of the following conditions
precedent:
(A) Documents. Bank shall have received the duly executed notes
conforming to the requirements hereof, and not less than four (4) copies of
this Agreement, each executed on behalf of Borrower and/or by its duly
authorized officers.
(B) Deliveries by Borrower. Borrower shall have delivered or caused
to be delivered to the Bank or the Bank shall have received, the following
items, which shall be in form and substance reasonably satisfactory to the
Bank and its counsel:
(i) Legal Opinion of Counsel to Borrower. Opinion of Dillon,
Bitar & Luther, counsel to Borrower and the Guarantors provided for herein,
dated the date hereof and addressed to Bank, substantially in the form of
Exhibit "2.8(b)(i)" hereto,
(ii) Corporate Proceedings. Resolutions of the Boards of
Directors of Borrower and all Guarantors certified on the date hereof by the
Secretary or an Assistant Secretary of Borrower and such Guarantors
authorizing (a) the execution, delivery and performance of this Agreement, and
all of the other Loan Documents to which it is a party; (b) the consummation
of the transactions contemplated hereby and thereby; and (c) the borrowings
and other matters contemplated in the Loan Documents. Such certificate shall
state that the resolutions set forth therein have not been amended, modified,
revoked or rescinded as of the date of such certificate and are in full force
and effect as of the closing date.
(iii) lncumbency Certificate. A certificate of the Secretary or
an Assistant Secretary of Borrower and all Guarantors, dated the date hereof,
as to the incumbency and signature of the officers executing each of the Loan
Documents and any other document to be delivered pursuant to any of such
documents, together with evidence of the incumbency of such Secretary or
Assistant Secretary.
(iv) Officer's Certificate. A certificate of Borrower signed by its
president or chief financial officer stating that to the best of his
knowledge after diligent investigation: (a) as of the date hereof and giving
effect to any loan no Default or Event of Default exists hereunder; and (b)
all of Borrower's representations and warranties contained in this Agreement
and the other Loan Documents are presently true and correct in all material
respects.
(v) Consents, Licenses, Approvals, etc. Copies of all consents,
licenses and approvals required in connection with the execution, delivery,
performance, validity and enforceability of this Agreement, the note and other
Loan Documents, and such consents, licenses and approvals shall be in full
force and effect and be reasonably satisfactory in form and substance to Bank
and its counsel.
(vi) Searches. Copies, in form and substance reasonably satisfactory
to Bank, of written or other advice relating to such corporate status,
financing statement, tax lien, judgment and other searches as Bank may
reasonably require.
(vii) Other Documents. All other documents provided for herein or
which Bank may request or require.
(viii) Additional Information. Such additional information and
materials which Bank shall have reasonably requested.
(ix) Supporting Documents. On or before the date hereof, (a) a copy
of the Certificate of Incorporation of Borrower and any Guarantor, certified
by the Secretary of State of its state of incorporation; (b) a certificate of
such Secretary of State, dated as of a recent date, as to the good standing of
Borrower and any Guarantor and attaching the charter documents of Borrower and
any Guarantor on file in the office of such Secretary of State; and (c) a
certificate of the Secretary or an Assistant Secretary of Borrower and any
Guarantor dated the Closing Date and certifying with respect to Borrower and
any Guarantor (I) that attached thereto is a true and complete copy of the By-
laws of Borrower and any Guarantor, as in effect on the date of such
certification, and (II) that the Certificate of Incorporation of Borrower and
any Guarantor has not been amended since the date of the last amendment
thereto indicated on the certificate of the Secretary of State furnished
pursuant to clause (A) above.
(x) Fees. Borrower shall have paid all of the reasonable fees and
expenses of Bank's counsel which are occasioned in connection with the
preparation of this Agreement, and all other Loan Documents and the closing of
the transactions contemplated hereby and thereby.
(xi) Insurance. Evidence of the insurance required to be in effect
as set forth in this Agreement.
(xii) Hedge. Borrower shall have hedged the floating interest rate
on the Term Loan by entering into a swap agreement as required by paragraph
5.18 hereof.
(xiii) Commitment Letter. All conditions precedent set forth in the
Bank's commitinent letter dated July 31,1996 have been satisfied or waived in
writing by Bank.
2.9 CONDITIONS TO ALL LOANS The obligation of Bank to make any loan or
other financial accommodation hereunder is subject to fulfillment of the
following additional conditions precedent, to the reasonable satisfaction of
counsel to Bank:
(a) Representations and Warranties. The representations and
warranties made by Borrower and any Obligor herein or in any other of the Loan
Documents or which are contained in any certificate, document or financial or
other statement furnished at any time under or in connection herewith shall be
correct in all material respects on and as of the date of each loan or other
financial accommodation hereunder, after giving effect to such loan or other
financial accommodation hereunder, as if made on and as of such date.
(b) No Default. No Event of Default has occurred, and no Default
has arisen and is continuing on the date the loan or other financial
accommodation hereunder is to be made, after giving effect to the such loan or
other financial accommodation hereunder.
(c) Litigation. No suit, action, investigation, inquiry or other
proceeding by any govennrnental authority or other Person or any other legal
or administrative proceeding shall be pending or threatened which (i)
questions the validity or legality of the transactions contemplated by this
Agreement, or (ii) seeks damages in connection therewith and which, in the
reasonable judgment of Bank, (x) involves a significant risk of a preliminary
or permanent injunction or other order by a state or federal court which would
prevent, or require rescission of, the transactions contemplated by this
Agreement, or (y) in the case of any action or proceeding which seeks monetary
damages involves a significant risk of resulting in substantial financial
liability to Borrower, any guarantor and/or Bank.
(d) Material Adverse Change. No event shall have occurred since the
date of the most recent financial statements of Obligors furnished to Bank
which resulted in a Material Adverse Change of any Obligor or had a Material
Adverse Effect on any Obligor.
(e) Legal Matters. All legal matters incident to the making of the
loans and other financial accommodations shall be satisfactory to counsel to
Bank, in the reasonable exercise of its judgment.
2.10 REGULATORY CAPITAL REOUIREMENTS If any existing or future law or
regulation or the interpretation thereof by any court or administrative or
governmental authority charged with the administration thereof, or compliance
by Bank with any request or directive (whether or not having the force of law)
of any such authority, results in any increases after the date hereof in any
capital maintenance, capital ratio or similar requirement against loan
commitments made by Bank and the result thereof is to impose upon Bank or
increase any capital requirement applicable to Bank as a result of the making
or maintenance of the revolving credit available hereunder (which imposition
of or increase in capital requirement may be determined by Bank's reasonable
allocation of the aggregate of such capital impositions or increases) then,
upon demand by Bank, Borrower shall immediately pay to Bank from time to time
as specified by Bank a commitment fee which shall be sufficient to compensate
Bank for such imposition of or increase in capital requirements together with
interest on each such amount from the date demanded until payment in full
thereof at the rate provided in this Agreement with respect to commitment fees
not paid when due. A certificate setting forth in reasonable detail the
amount necessary to compensate Bank as a result of an imposition of or
increase in capital requirements submitted by Bank to Borrower shall be
conclusive, absent manifest error or bad faith, as to the amount thereof. For
purposes of this Paragraph 2.10, in calculating the amount necessary to
compensate for any imposition of or increase in capital requirements, Bank
shall be deemed to be entitled to a rate of return on capital (after federal,
state and local taxes) of fifteen percent per annum.
2.11 EXCESS LOANS In the event Bank shall advance an amount in excess of
the aggregate amount of all loans and other financial accommodations set forth
in this Agreement or if Borrower should directly or indirectly become indebted
to Bank in an amount which, together with all advances made pursuant to this
Agreement, is in excess of the aggregate amount set forth in this Agreement,
such advances or such Indebtedness shall nevertheless be covered by the terms
of this Agreement.
III
COLLATERAL
3.1 CROSS COLLATERAL All of the Collateral heretofore, herein or
hereafter given or assigned to Bank hereunder shall secure payment of all
Obligations, as defined herein, of Borrower to Bank and each Bank Affiliate.
3.2 ACCOUNTS RECEIVABLE Borrower hereby creates in favor of Bank and
hereby grants to Bank a security interest in all Accounts, as defined herein,
presently owned by Borrower or hereafter acquired.
3.3 EQUIPMENT Borrower hereby creates in favor of Bank and hereby grants
to Bank a security interest in all of Borrower's Equipment, as such term is
defined herein, whether presently owned by Borrower or hereafter acquired, and
wherever located.
3.4 INVENTORY Borrower hereby creates in favor of Bank and hereby grants
to Bank a security interest in all of Borrower's Inventory, as defined herein,
whether presently owned by Borrower or hereafter acquired and wherever located.
3.5 GENERAL INTANGIBLES Borrower hereby creates in favor of Bank and
hereby grants to Bank a security interest in all of Borrower's General
Intangibles, as herein defined, whether presently owned by Borrower or
hereafter acquired.
3.6 DEPOSIT ACCOUNTS Borrower hereby creates in favor of Bank, hereby
assigns to Bank and hereby grants to Bank a security interest in the balance
of every deposit account, now or hereafter existing, of Borrower with Bank,
and all money, Instruments, securities, documents, Chattel Paper, credits,
claims, and other property of Borrower now or hereafter in the possession or
custody of Bank or any of its agents.
3.7 CHATTEL PAPER Borrower hereby creates in favor of Bank and hereby
grants to Bank a security interest in all of Borrower's Chattel Paper, as
defined herein, whether presently owned by Borrower or hereafter acquired,
including but not limited to all such Chattel Paper now or hereafter left in
the possession of Bank for any purpose, further including but not limited to
for collection.
3.8 INSTRUMENTS MAI NOTE, MANAGEMENT NOTES AND VAGLE NOTE
Borrower
hereby creates in favor of Bank and hereby grants to Bank a security interest
in all of Borrower's Instruments, including without limitation the MAI Note
the Management Notes and the Vagle Note, as eacb of said terms are defined
herein, whether presently owned by Borrower or hereafter acquired, including
but not limited to all such Instruments now or hereafter left in the
possession of Bank for any purpose, further including but not limited to for
collection.
3.9 DOCUMENTS Borrower hereby Creates in favor of Bank and hereby grants
to Bank a security interest in all of Borrower's Documents, as defined herein,
whether presently owned by Borrower or hereafter acquired, including but not
limited to all such Documents now or hereafter left in the possession of Bank
for any purpose.
3.10 SECURITY FOR ACCOUNTS Borrower hereby assigns to and grants to Bank
a security interest in all rights of Borrower in, to and under all guarantees
and security Borrower may now or hereafter acquire of any Accounts and other
Collateral, including but not limited to any Letters of Credit securing any
Accounts, any credit insurance policies covering any Account and the proceeds
of any such guarantees and other security.
3.11 PROCEEDS AND RECORDS Borrower hereby creates in favor of Bank and
hereby grants to Bank a security interest in (A) all books and records,
including, without limitation, customer lists, credit files, computer programs,
print-outs and other computer materials and records of Borrower pertaining to
all of the Collateral; and (B) all of the products and proceeds of all of the
foregoing Collateral (including all proceeds of insurance policies covering
the Collateral); as well as all accessions, additions, substitutions,
replacements and increments as to the assets in (A) and (B).
3.12 CONTINUING PERFECTION Borrower agrees to immediately turn over to
Bank the original of any Letter of Credit and if such Letter of Credit is
transferable, to transfer such Letter of Credit to Bank, and if such Letter of
Credit is not transferable, to notify, in writing, the issuer of any such
Letter of Credit of the assignment by Borrower to Bank of Borrowers right to
the proceeds thereof and to make payment of such proceeds directly to Bank.
Borrower will perform any and all steps requested by Bank to create and
maintain in Bank's favor a first and exclusive and valid lien on or security
interest in the Collateral or pledges of Collateral, including, without
limitation, the execution, delivery, filing and recording of financing
statements and continuation statements, supplemental security agreements,
notes and any other documents necessary, in the opinion of Bank, to protect
its interest in the Collateral. Bank and its designated officer are hereby
appointed Borrower's attorney-in-fact to do all acts and things which Bank
may deem necessary to perfect and continue perfected the security interests
and Liens provided for in this Agreement, including, but not limited to,
executing financing statements on behalf of Borrower. Neither the Bank nor its
attorneys, officers, employees, or agents shall be liable for acts, omissions,
any error in judgment, or mistake in fact in its/their capacity as attorney-in-
fact. This power, being coupled with an interest, is irrevocable until the
Obligations have been fully satisfied. At the Bank's sole option, and without
the Borrower's consent, the Bank may file a carbon, photographic, or other
reproduction of this Agreement or any financing statement executed pursuant
hereto as a financing statement in any jurisdiction so permitting. The Bank is
expressly authorized to file financing statements without the Borrower's
signature.
IV
REPRESENTATIONS AND WARRANTIES
To induce Bank to enter into this Agreement and to make loans and other
financial accommodations hereunder, Borrower represents and warrants to Bank
that:
4.1 GOOD STANDING Exhibit "A" sets forth:
(A) the jurisdiction of incorporation of Borrower and in which it
is in good standing;
(B) all other jurisdictions in which Borrower is authorized to
transact business in all of which it is in good standing;
(C) any changes since January 1, 1992 in the structure of Borrower,
such as mergers, consolidations and the like;
(D) any name changes since January 1, 1992 of Borrower;
(E) all trade names or trade styles under which Borrower conducts
business or issue invoices;
(F) all Subsidiaries and Affiliates of Borrower and the percentage
of stock or other ownership interest thereof owned by Borrower or Affiliates
of Borrower,
(G) all stockholders of Borrower.
4.2 CORPORATE AUTHORITY Borrower, and all Affiliates and Subsidiaries
have requisite power and authority to own their property and to carry on their
business as now conducted, and are in good standing and authorized to do
business in each jurisdiction in which the failure so to do would have a
Material Adverse Effect on Borrower or such Affiliate or Subsidiary. Borrower
and all Guarantors have the corporate power to execute, deliver and carry out
this Agreement and all other Loan Documents to which they are a party and
their Boards of Directors have duly authorized and approved the terms of the
loans and other financial accommodations described herein and the taking of
any and all action contemplated herein and therein, and this Agreement and all
other Loan Documents to which Borrower or any Obligor are a party constitute
the valid and binding obligaltons of them, enforceable in accordance with
their terms. No consent or approval of, or exemption by, shareholders, any
Governmental Body or any other Person is required to authorize, or is
otherwise required in connection with the execution, delivery and performance
of, the Loan Documents to which it is a party, or is required as a condition
to the validity or enforceability of the Loan Documents to which it is a party.
4.3 COMPLIANCE WITH LAW (A) Borrower and all other Obligors are in
compliance with all laws, rules and regulations to which they are subject and
have all licenses, certificates, permits and franchises and other governmental
authorization necessary to own their properties and to conduct their
businesses.
(B) The execution of this Agreement, and each other Loan Document
and the performance by Borrower and other Obligors of their obligations
hereunder and thereunder, do not, at the date of execution hereof, violate any
existing law or regulation or any writ or decree of any court or Governmental
Body or the charter or bylaws of Borrower or any Obligor or any agreement or
undertaking to which either is a party or by which they are bound.
4.4 NO LITIGATION There are no judgments against Borrower or any Obligor
as of the date of this Agreement and except as disclosed on Exhibit 4.4
annexed hereto no material litigation or administrative proceeding before any
Governmental Body is presently pending, or to the knowledge of Borrower,
threatened, against Borrower or any Obligor or any of their property.
4.5 NO FINANCIAL CHANGE (A) There has been no Material Adverse Change in
the condition of Borrower and Guarantors since their last financial statements
and reports dated June 30,1996 furnished to Bank and the information contained
in said statements and reports is true and correctly reflects the financial
condition of Borrower and Guarantors as of the dates of the statements and
reports, and such statements and reports have been prepared in accordance with
GAAP and do not contain any material misstatement of fact or omit to state any
facts necessary to make the statements contained therein not misleading.
(B) Borrower has no Contingent Obligations or Financial Undertaking
other than as disclosed in its financial statements dated June 30, 1996
heretofore furnished to Bank.
4.6 TAX COMPLIANCE Borrower and each Obligor has filed, or caused to be
filed, all tax returns required to be filed and has paid all taxes shown to be
due and payable on said return or on any assessment made against it.
4.7 GOOD TITLE AND ABSENCE OF LIENS On the date of this Agreement
Borrower and each Guarantor has good and marketable title to all of its
properties and assets, real, personal and mixed, and none of said properties
or assets is subject to any Lien, except for Permitted Encumbrances.
4.8 PLACE OF RECORDS, CHIEF EXECUTIVE OFFICE, INVENTORY AND
EQUIPMENT
AND OTHER COLLATERAL (A) Borrower's chief executive office, and the office
where Borrower keeps its records concerning its Accounts, and all locations of
its Inventory and Equipment, and all other business locations of Borrower are
presently at the locations set forth on Exhibit "A". (B) Except as set forth
on Exhibit "A", within four (4) months of the date of this Agreement, none of
Borrower's assets have been moved from any jurisdiction or other locations
than the present locations of assets set forth on Exhibit "A" under item
4.8(A)(v) except for Inventory or Equipment purchased by Borrower in the
ordinary course of business from persons or entities customarily selling such
Inventory or Equipment. (C) As of the date hereof no Inventory is, except as
set forth on Exhibit "A", stored with a bailee, warehouseman or similar party.
(D) As of the date of this Agreement, Borrower does not hold any Goods
belonging to third parties or in which other parties have an interest,
including any Goods sold on a bill and hold basis, except as set forth on
Exhibit "A". (E) Borrower does not presently purchase or otherwise hold,
purchase or otherwise hold Goods on a consignment basis except as set forth on
Exhibit "A". (F) Except as set forth on Exhibit "A", none of Borrower's
Inventory is of a nature that contains any labels, trademarks, trade names, or
other identifying characteristics which are the properties of third parties,
and the use of which by Borrower would violate the rights of such third
parties or under license, royalty or similar agreements with any third
parties. (G) Except as set forth on Exhibit "A", no persons hold any Goods of
Borrower. (H) Except as set forth on Exhibit "A", Borrower has not purchased
any Inventory or Equipment except in the ordinary course of business for value
and from persons customarily in the business of selling such Inventory or
Equipment. (I) Except as set forth on Exhibit "A", Borrower does not hold any
Instrument or Chattel Paper connected with any Account. (J) Except as set
forth on Exhibit "A", Borrower does not own any trademarks, trade names,
patents or copyrights. (K) No surety bonds have been issued on behalf of
Borrower with respect to any contracts or purchase orders out of which
Accounts Receivable have arisen or are expected to arise.
4.9 WARRANTIES AS TO ACCOUNTS Except as otherwise provided in the
assignment of Accounts, if any, given to Bank, or invoice or other writing,
Borrower warrants that as to all Accounts reported to Bank; (A) each Account
is a valid subsisting Account as defined herein; (B) each Account represents
a bona fide prrformed transaction; (C) the amount shown on Borrower's books
and on any invoice or statement delivered to Bank is owing to Borrower; (D) no
partial payment has been made; (E) no set-off or counterclaim exists as to any
such Account and no agreement has been made under which any deductions or
discount may be claimed except regular discounts in the usual course of
business, but only if disclosed on the face of the invoice; (F) the Account
Debtor has not disputed the Account or otherwise asserted any defense, set-off
or counterclaim; (G) that to the extent required by law Borrower is authorized
to do business and in good standing in any state in which any such Account
must be enforced; (H) each Eligible Account is a valid subsisting Eligible
Account as defined herein; (I) all agings of Accounts submitted to Bank are
true and accurate; (J) no surety bond was required or given on behalf of
Borrower in connection with any contracts or purchase orders under which the
Account arose.
4.10 ERISA (A) No Reportable Event or accumulated funding deficiencies
(as defined in ERISA) or failure of compliance with ERISA or the Internal
Revenue Code of 1986, as amended, has occurred and is continuing with respect
to any Plan; (B) Borrower has complied with the provisions of ERISA and the
Internal Revenue Code of 1986, as amended, with respect to each Plan. No
material liability to the Pension Benefit Guaranty Corporation (or any
successor thereto under ERISA) has been incurred by the Borrower with respect
to any such plan. The Borrower has no actual or anticipated liability under
Section 4971 of the Internal Revenue Code ("Code") (relating to tax on failure
to meet the minimum funding standard of Section 412 of the Code) with respect
to any employee benefit plan to which it contributes but which is not
maintained or established by it.
4.11 LICENSES AND PERMITS AND LAWS Borrower and all Obligors hold all
necessary licenses and permits for the operation of their businesses,
including all permits required under Environmental Laws and Borrower has
complied with all laws, rules and regulations applicable to its business,
including but not limited to the Fair Labor Standards Act, 29 U.S.C. Section
215(a)(1) and the Occupational Safety and Health Act, as amended, 29 USC
Section 651 et seq. All such licenses and permits are in good standing and are
not under any outstanding citation issued by any governmental authority, and
no litigation has been instituted nor (to the best knowledge of Borrower) have
any claims been made by any third parties relating to the licenses and permits
issued by any Goverurnental Body for the operation of their businesses, and no
such citation, litigation or claim, to the best knowledge of Borrower, is
contemplated by any Governmental Body or any third persons nor, to the best
knowledge of Borrower, does there exist any basis for any such citation,
litigation or claim by any of the authorities or any Person.
4.12 ENVIRONMENTAL STATUS As to all properties owned, leased or operated
by Borrower and to all operations of Borrower's business:
(A) there is no pending or threatened proceeding affecting Borrower
with respect to any Environmental Law;
(B) Borrower has not been identified as a responsible or potentially
responsible party under CERCLA and has not received notification that any
hazardous substance or contaminant has been found at any site;
(C) none of such properties are listed or proposed for listing on
the National Priorities List under CERCLA;
(D) no Hazardous Substanoe or Hazardous Waste (as such term is
defined in Envirnnmental Laws) have been disposed of or otherwise released or
discharged on such properties;
(E) no underground storage tanks exist on the properties and the
removal of any such tanks from the properties was undertaken in compliance
with the Underground Storage Tank Act, and
(F) no friable asbestos, or any substance containing asbestos or
PCB's have been installed in or exists on such properties.
(G) to the best of the Borrower's knowledge, after due inquiry and
investigation, no lien has attached to any revenues or any real or personal
property owned by the Borrower in any jurisdiction, arising from an
intentional or unintentional action or omission of the Borrower or any
previous owner and/or operator of said real property, resulting from the
Dumping of hazardous substances or wastes into the atmosphere or waters or
onto lands, any of which may have damaged any Natural Resources;
(H) the Borrower has not received a summons, citation, directive,
letter, or other communication, written or oral, from any jurisdiction, or
political sub-division or any agency or instrumentality thereof, concerning
any intentional or unintentional action or omission on the Borrower's part
resulting in the Dumping of hazardous substances into the atmosphere or waters,
or onto the lands in any jurisdiction, any of which has resulted in damage to
the Natural Resources;
4.13 REAFFIRMATION Each and every request for a loan or other financial
accommodation hereunder shall be deemed as an affirmation by Borrower that no
Default nor Event of Default exists hereunder and that the representations and
warranties contained in this Article IV are true and accurate as of the date
of each such request (notwithstanding that some of the terms hereof speak as
of the date of this Agreement) and that Borrower is in compliance with all
applicable laws, rules and regulations.
4.14 PROCEEDS OF LOAN Borrower is not engaged principally, or as one of
its important activities, in the business of extending credit for the purpose
of purchasing or carrying any margin stock within the meaning of Regulation U
of the Board of Governors of the Federal Reserve System, as amended. No part
of the proceeds of the loans will be used, directly or indirectly, for a
purpose which violates any law, rule or regulation of any Governmental Body,
including without limitation the provisions of Regulations G, T, U or X of the
Board of Governors of the Federal Reserve System, as amended. Borrower
represents that the proceeds of the loan(s) provided for herein shall be used
in the following manner: The proceeds of the Term Loan shall be used to
refinance existing Indebtedness owing to Bank; the proceeds of the Equipment
Line shall be used to finance the purchase of items of Equipment; the proceeds
of the Revolver will be used to finance accounts receivable and inventory
purchases. No proceeds of any loan or other financial accommodations hereunder
shall be used to purchase or carry any margin stock (within the meaning of
Regulation U issued by the Board of Governors of the Federal Reserve System)
or to extend credit to others for the purpose of purchasing or carrying any
margin stock.
4.15 BORROWER AND OBLIGOR Borrower and Guarantors are operated as part of
one consolidated business entity and are directly dependent upon each other
for and in connection with their respective business activities and their
respective financial resources. Borrower and each Guarantor will receive a
direct economic and financial benefit from the Obligations incurred under this
Agreement by Borrower, and the incurrence of such Obligations is in the best
interests of Borrower and each of the Guarantors.
4.16 SOLVENCY The fair value of the business and assets of Borrower and
Guarantors (including, without limitation, contingent, unmatured and
unliquidated claims arising out of all rights of indemnity, contribution,
reimbursement or any similar right, or any claim of subrogation arising in
respect of any guaranty, as such claims may arise or mature, that Borrower and
Guarantors may have against each of Borrower and Guarantors) will be in excess
of the amount that will be required to pay its liabilities (including, without
limitation, contingent, subordinated, unmatured and unliquidated liabilities
on existing debts, as such liabilities may become absolute and matured), in
each case after giving effect to the transactions contemplated by this
Agreement and the use of proceeds therefrom. Neither Borrower nor any
Guarantors, after giving effect to the transactions contemplated by this
Agreement and the use of proceeds therefrom, will be engaged in any business
or transaction, or about to engage in any business or transaction, for which
such Person has an unreasonably small capital (within the meaning of the
Uniform Fraudulent Transfer Act, as adopted in the State of New Jersey and
Section 548 of the Federal Bankruptcy Code), and neither Borrower nor any
Guarantor has any intent to
(A) hinder, delay or defraud any entity to which it is, or will
become, on or after the date hereof, indebted, or
(B) to incur debts that would be beyond its ability to pay as they
mature.
4.17 DEFAULTS. Neither Borrower nor any Guarantor is in default under any
agreement to which the Borrower or such Guarantor is a party or by which the
Borrower or any of its property is bound, or under any indenture or instrument
evidencing any Indebtedness of the Borrower or such Guarantor, and neither the
Borrower's nor any Guarantor's execution or perforrnance under the Loan
Documents will create a default or any Lien under any such agreement,
indenture or instrument other than a Lien in favor of the Bank;
4.18 BURDENSOME AGREEMENTS Exhibit 4.18 annexed hereto identifies all
agreements, contracts and similar instruments to which Borrower is a party or
by which Borrower is bound and which could have a Material Adverse Effect on
Borrower, and Borrower has furnished to Bank true, accurate and complete
copies of such agreements. Borrower is not in default of any agreement and
other instruments identified on Exhibit 4.18 nor has any Person notified
Borrower that Borrower is in default of any such agreement.
4.19 VAGLE NOTE (A) Each Original Borrower represents that:
(a) It is the owner, free and clear of all liens, claims and
encumbrances, of the Vagle Note;
(b) The Vagle Note has been duly authorized, executed and delivered
by Vagle and constitutes the valid, binding and enforceable obligations of
Vagle and has not been amended, modified or otherwise altered and remain in
full force and effect;
(c) As of the date hereof, there is $6,000,000.00 owing under
the Vagle Note; and
(d) Other than the original of the Vagle Note previously delivered
to Bank, there are no other executed originals thereof.
4.20 MAI NOTE (A) Vagle represents that:
(a) It is the owner, free and clear of all liens, claims and
encumbrances, of the MAI Note;
(b) The MAI Note has been duly authorized, executed and delivered by MAI
and constitutes the valid, binding and enforceable obligations of MAI; and has
not been amended, modified or otherwise altered and remain in full force and
effect;
(c) As of the date hereof, there is $6,OOO,000.OO owing under the Vagle
Note; and
(d) Other than the original of the Vagle Note previously delivered to
Bank, there are no other executed originals thereof.
4.21 EXISTING SUBORDINATED DEBT (A) The Indebtedeess of MAI to Bank is
Senior Indebtedness under the Indenture constituting a portion of the Existing
Subordinated Debt.
(B) MAI has furnished to Bank true, accurate and complete copies of
the Indenture, and all supplements and amendments thereto.
(C) As of the date hereof the aggregate outstanding principal
amount of the Indebtedness under the Indenture is One Million Eight Hundred
Twenty-five Thousand and 00/100 ($1,825,000.00)
(D) As of the date hereof the aggregate outstanding principal
amount of the Debentures is One Million Five Hundred Ten Thousand Dollars
($1,510,000.00).
(E) No event of default exists under the Existing Subordinated Debt
or any event which with the giving of notice or passage of time or both would
become an event of default thereunder.
V
AFFIRMATIVE COVENANTS OF BORROWER
5.1 AUDIT AND OTHER REPORTS (A) Borrower agrees that within ninety (90)
days of the end of each fiscal year, it will furnish Bank with detailed
audited financial statements, including a balance sheet, profit and loss
statement, cash flow statement and surplus reconciliation, certified on an
unqualified basis, by an independent certified public accountant satisfactory
to Bank; (B) Borrower will also furnish monthly similar statements uncertified
except for a certification by an officer of Borrower as to their correctness
within twenty (20) days of the end of each month. All such statements shall be
on a consolidated and consolidating basis of Borrower and all Qualified
Obligors and in accordance with GAAP; (C) simultaneous with the submission of
the annual statements required under "A" above and the monthly financial
statement as of the end of each fiscal quarter under "B" above, Borrower shall
cause to be submitted to Bank a certificate of the chief financial officer of
Borrower in the form of exhibit 5.1 annexed hereto setting forth the
calculations of the financial tests described in paragraph 6.2 hereof and
stating whether or not, to the best of said officer's knowledge, after
diligent inquiry a Default or Event of Default exists, and if such exists,
specify the nature thereof and the steps Borrower is taking to remedy same;
(D) promptly after the furnishing thereof to third parties, Borrower shall
furnish to Bank copies of any statements, reports, proxy material,
registration statement and prospectus furnished to any holder of any
securities of Borrower or filed with any regulatory agency or agencies; (E)
promptly, but no later than five (5) days after a responsible officer of
Borrower shall become aware of (i) a Default or Event of Default hereunder,
(ii) a Reportable Event or "prohibited transaction" as such term is defined in
ERISA, (iii) litigation against Borrower or any Subsidiary or Andal Corp. in
excess of $100,000.00 not fully covered by insurance (iv) Peter Flood or
Walter Kreil ceasing to be actively engaged as chief executive officer and
chief fmancial officer respectively of Borrower or (v) the termination or
threatened termination of or claim of breach by Borrower or any Subsidiary of
any material contract, agreement or obligation, or of any claim of patent
infringement, Borrower shall furnish to Bank a written notice specifying the
existence thereof and the action Borrower or any Subsidiary is taking or
proposes to take with respect thereto; (F) Borrower will furnish to Bank
prompt written notice if: (1) any Indebtedness of Borrower or any Subsidiary
is declared or shall become due and payable prior to its stated maturity, or
called and not paid when due or (ii) a default shall have occurred under any
note or the holder of any such note, or other evidence of Indebtedness,
certificate of security evidencing any such Indebtedness or any obligee with
respect to any Indebtedness of Borrower or any Subsidiary has the right to
declare any such Indebtedness due and payable prior to its stated maturity as
a result of such default; (G) Borrower also agrees to furnish to Bank (i) with
reasonable promptness a copy of any "management letter" or similar report
furnished to it by its accountants and such other data and information
concerning it and its Subsidiaries as from time to time may be requested by
Bank and (ii) a copy of its federal tax return promptly, but no later than
five (5) days, after the filing of same.
5.2 INSURANCE Borrower agrees to keep all of the tangible Collateral
assigned hereunder insured, at its own cost and expense, for the benefit of
Bank, and in such amounts, in such companies, and against such risks as may be
acceptable to Bank, and deliver the policies evidencing such insurance to Bank.
If Borrower fails to take the action called for herein, Bank may, in its
discretion obtain insurance covering Bank's interest in the Collateral and the
amount of the premium for said insurance shall be added to the Obligations of
Borrower to Bank. All policies of insurance on the Collateral shall be in
form and with insurers recognized as adequate by prudent business persons and
all such policies shall be in such amounts as may be satisfactory to Bank.
Borrower shall deliver to Bank the original (or certified copy) of each policy
of insurance and evidence of payment of all premiums therefor. Such policies
of insurance shall contain an endorsement, in form and substance satisfactory
to Bank, showing loss payable to Bank. Such endorsement or an independent
instrument furnished to Bank, shall provide that the insurance companies will
give Bank at least thirty (30) days prior written notice before any such
policy or policies of insurance shall be altered or canceled and that no act
or default of Borrower or any other person shall affect the right of Bank to
recover under such policy or policies of insurance in case of loss or damage.
Borrower hereby directs all insurers under such policies of insurance to pay
all proceeds payable thereunder directly to Bank. Borrower irrevocably makes,
constitutes and appoints Bank (and all officers, employees or agents
designated by Bank) as Borrower's true and lawful attorney (and agent-in-fact)
for the purpose of making, settling and adjusting claims under such policies
of insurance (provided that until an Event of Default exists, Bank shall
consult with Borrower prior to finally making, settling or adjusting chums
under such policies of insurance), endorsing the name of Borrower on any check,
draft, instrument or other item of payment for the proceeds of such policies
of insurance and for making all determinations and decisions with respect to
such policies of insurance. In the event Borrower, at any time or times
hereafter, shall fail to obtain or maintain any of the policies of insurance
required above or to pay any premium in whole or in part relating thereto,
then Bank, without waiving or releasing any obligation or default by Borrower
hereunder, may (but shall be under no obligation to do so) at any time or
times thereafter obtain and maintain such policies of insurance and pay such
premium and take any other action with respect thereto which Bank deems
advisable. All sums so disbursed by Bank, including reasonable attorneys' fees,
court costs, expenses and other charges related thereto, shall be payable, on
demand, by Borrower to Bank and shall be additional Obligations hereunder
secured by the Collateral. Borrower also agrees to at all times maintain
insurance, both hazard and liability, against such risks and in such amounts
as reasonably prudent to companies similarly situated as Borrower would
maintain and to furnish to Bank from time to time evidence that such insurance
is in full force and effect.
5.3 PAYMENT OF EXPENSES Borrower will pay any and all expenses,
including reasonable counsel fees and disbursements, filing and recording fees,
and all other charges and expenses incurred or to be incurred by Bank in
connection with the preparation and execution and recording of this Agreement
and all other Loan Documents, and the loans and advances made under this
Agreement and all amendments and modifications hereto and in defending or
prosecuting any actions or proceedings arising out of or relating to Bank's
transactions with Borrower including but not limited to any proceedings in any
proceeding under the Bankruptcy Code relating to Borrower or any other
Obligor.
5.4 LIFE INSURANCE Borrower agrees to collaterally assign to Bank a life
insurance policy on the life of Peter Flood in the amount of $750,000.00 and
on the life of Walter Kreil in the amount of $500,000.00. Borrower is to keep
said policies in full force and effect, and pay all premiums as they fall due.
If Borrower shall fail to do so, Bank may, in its discretion, pay any premiums
due on said policies and add any amount to the Obligations of Borrower to Bank.
It shall be the obligation of Borrower to notify Bank of its failure to pay
any premium when it becomes due.
5.5 GUARANTY Borrower will cause Multi-Arc Management Corp. and Multi-Arc
(U.K.) Ltd. to execute and deliver to Bank, and remain in full force and
effect, Guaranty Agreements, in such form as prescribed by Bank, wherein said
parties shall jointly and severally guarantee the payment of all Obligations
of Borrower to Bank. Borrower will also (i) cause each future Subsidiary of
any Borrower or Guarantor, to execute and deliver to Bank, and remain in full
force and effect, Guaranty Agreements, in such form as prescribed by Bank,
wherein said Persons shall jointly and severally guarantee the payment of all
Obligations of Borrower to Bank, (ii) cause Canada to execute and deliver to
Bank, and remain in full force and effect a guaranty agreement, in such form
as prescribed by Bank, of all obligations of Vagle to Bank and (iii) cause
each of such Persons to enter into a security agreement and/or pledge
agreement or other agreements, instruments, documents and the like, as Bank or
its counsel may require, in favor of and in form satisfactory to Bank,
granting to Bank a Lien on all assets of such Persons and as Bank or its
counsel may request to perfect such Liens.
5.6 LANDLORD'S WAIVER Borrower shall use its best efforts to cause the
landlord of all premises where any of the Collateral provided for herein may
be located to execute and deliver to Bank a Landlord's Waiver and
Subordination in such form as may be acceptable to Bank.
5.7 GOOD WORKING CONDITION Borrower and each Subsidiary shall maintain
all of their property in good working condition, ordinary wear and tear
excepted.
5.8 REPORTS OF COLLATERAL Borrower shall, within twenty (20) days of the
end of each month, deliver to Bank (i) an aging of its, and each Qualified
Obligors, Accounts, and (ii) report of its, and each Qualified Obligors,
Inventory, and (iii) an aging of its, and each Qualified Obligors, accounts
payable in such form as may be acceptable to Bank and (iv) a Borrowing Base
report in the form of exhibit 2.2 annexed hereto.
5.9 DEBT SUBORDINATION AGREEMENT Borrower shall cause Andal Corp. to
execute and deliver to Bank, and remain in full force and effect, a debt
subordination agreement in form and substance satisfactory to Bank.
5.10 OBSERVANCE OF LEGAL REOUIREMENT, LICENSES AND PERMITS AND
PROTECTION OF COLLATERAL.
(A) Borrower and each Obligor shall comply in all material respects
with any and all laws, legislation, rules and regulations in effect as of the
date hereof and subsequent thereto, including but not limited to all state,
local and federal laws, legislation, rules and regulations relating to
employee pension and benefit funds, the payment of taxes, assessments, and
other governmental charges, zoning, and the use, occupancy, transfer or
encumbrancing of the Collateral and all Environmental Laws. Borrower agrees
to comply with all reasonable conditions required by Bank designed to protect
Bank and the Collateral from effect of all Environmental Laws, ERISA and such
other laws, legislation, rules and regulations as are in, or may come into,
effect and apply to Borrower and each Obligor, Bank, the transactions
contemplated hereby or the Collateral or any occupants or users thereof,
whether as lessees, tenants, licensees or otherwise. Borrower agrees to pay
any costs required to comply with any of the above conditions.
(B) Borrower and each Obligor shall observe and comply in all
material respects with all laws (including ERISA), ordinances, orders,
judgments, rules, regulations, certifications, franchises, permits, 1icenses,
directions and requirements of all Governmental Bodies, which now or at any
time hereafter may be applicable to Borrower and each Obligor and the
operation of its business, a violation of which might have a Material Adverse
Effect on Borrower, except such thereof as shall be contested in good faith
and by appropriate proceedings diligently conducted by Borrower or such
Obligor, provided that such reserve or other appropriate provision as shall be
required by the accountants for Borrower in accordance with GAAP, shall have
been made therefor.
(C) Borrower and all Obligors will continue to hold all necessary
licenses and permits for the operations of their business.
5.11 INSPECTION (A) Bank (by any of its officers, employees and
agents) shall have the right, at any time or times during Borrower's usual
business hours, to inspect the Collateral, all records related thereto (and to
make extracts from such records) and the premises upon which any of the
Collateral is located, to discuss Borrower's and each Obligor's affairs and
finances with the accountants for Borrower and with any other person and to
verify the amount, quality, quantity, value and condition of, or any other
matter relating to, the Collateral; (B) The Bank shall have the right, at any
time and from time to time, to have conducted, by its qualified agents or
contractors such environmental inspections, audits and testing as Bank shall
deem necessary or advisable. The cost of any such inspections, audits and
testing conducted by the Bank shall be borne by the Bank. The Borrower shall,
and shall cause each lessee of the property to, cooperate with such inspection
efforts; such cooperation shall include, without limitation, supplying such
information concerning the operations conducted and Hazardous Substances or
Hazardous Wastes located at the property.
5.12 COLLATERAL REOUIREMENTS Unless Bank notifies Borrower in writing
that it dispenses with any one or more of the following requirements, Borrower
will (A) give Bank such financial statements, reports, lists of Account
Debtors and other data concerning its and each Qualified Obligors Accounts,
contracts and collections and the other Collateral, or any other matters which
Bank may, from time to time specify; (B) permit Bank or its nominee to examine
all of Borrower's and each Qualified Obligors records at any time and to make
extracts therefrom; (C) notify Bank immediately in writing if any of its or
any Qualified Obligor's Accounts arise out of contracts between Borrower and
the United States or any department, agency or instrumentality thereof, or any
other governmental body and take all steps necessary to protect Bank under the
Federal Assignrnent of Claims Act or other applicable state or local statutes
or ordinances; (D) deliver to Bank, appropriately endorsed, any Instrument or
Chattel Paper connected with any Account; (F) mark its and each Qualified
Obligors records of its Accounts in any manner satisfactory to Bank to
indicate the interest of Bank; (F) collect its and cause each Qualified
Obligors to collect Accounts in the ordinary course of business and prior to a
Default sell its and their Inventory only in the ordinary course of business
for value to buyers in the ordinary course of business; (G) without the prior
written consent of Bank, not sell or transfer after a Default any of its or
their Inventory; (H) keep accurate and complete records of its and cause
Qualified Obligor's Accounts and Inventory; (I) promptly notify Bank in
writing of any trademarks, trade names, patents or copyrights which it or any
Qualified Obligor may hereafter own or obtain a license to use or under which
it or any Qualified Obligor's may issue invoices; and (J) furnish to Bank
copies of any credit insurance policies covering any Accounts Receivable of
Borrower and take such actions as may be required so as to have Bank a
beneficiary thereof.
5.13 CONTROL OF ACCOUNTS (A) Bank shall have the right at any time after
the occurrence of an Event of Default, without notice, to notify Account
Debtors to make payments to Bank, to endorse all items of payment which may
come into its hands payable to Borrower, to take control of any cash or non-
cash proceeds of Accounts and of any returned or repossessed goods; to
compromise extend or renew any Account or deal with it as it may deem
advisable, and to make exchanges, substitutions or surrenders of Collateral,
to notify the postal authorities, to deliver all mail, correspondence or
parcels addressed to Borrower to Bank at such address as Bank may choose. (B)
Borrower herewith appoints Bank or its designee as Attorney-in-Fact to endorse
Borrower's name on any checks, notes, acceptances, drafts or any other
Instrument or document requirfng said endorsement and to sign Borrower's name
on any invoice or bills of lading relating to any Account, or drafts against
its customers, or schedules or confirmatory assignment on Accounts, or notices
of assignment, financing statements under the Uniform Commercial Code, and
other public records, and in verification of Accounts and in notices to
Account Debtors. (C) Bank shall have no obligation to preserve any rights
against any Person obligated on any Account, Chattel Paper, Instrument or
other item of Collateral.
5.14 CHANGE OF LOCATIONS Borrower will furnish Bank with at least thirty
(30) days prior written notice of any change in location of or addition to its
or any Qualified Obligors chief executive office, the office where it or any
Qualified Obligor keeps its records concerning its Accounts, its location of
Inventory, Equipment and other assets, and other business locations.
5.15 ENVIRONMENTAL LIENS. In the event that there shall be filed a Lien
against any property of the Borrower or any Qualified Obligors by any
jurisdiction, political sub-division, agency or instrumentality thereof
arising from an intentional or unintentional act or omission of the Borrower
or any Qualified Obligors, resulting in the Dumping of hazardous substances or
wastes into the atmosphere or waters or onto lands then, within thirty (30)
days from the date that the Borrower or any Qualified Obligors is given notice
that the Lien has been placed against such property. or within such shorter
period of time in the event that such jurisdiction, political sub-division,
agency, or instrumentality thereof has commenced steps to cause such property
to be sold pursuant to the Lien, either (i) pay the claim and remove the Lien
from the applicable property or (ii) furnish to such jurisdiction political
subdivision, agency or instrumentality thereof that imposed the Lien with one
of the following: (a) a bond satisfactory to such jurisdiction, political
sub-division, agency, or instuumentality thereof that imposed the Lien in the
amount of the claim out of which the Lien arises, (b) a cash deposit in the
amount of the claim out of which the Lien arises or (c) other security
reasonably satisfactory to such jurisdiction, political sub-division, agency,
or instrumentality thereof in an amount sufficient to discharge the claim out
of which the Lien arises;
5.16 REMOVAL OF HAZARDOUS SUBSTANCES. Should the Borrower or any
Qualified Obligor cause or permit any intentional or unintentional act or
omission resulting in the Dumping of hazardous substances or wastes into the
atmosphere or waters, or onto the lands resulting in damage to the Natural
Resources without having obtained a permit issued by the appropriate
governmental authorities, the Borrower shall promptly clean up same in
accordance with all applicable federal, state, and local orders, statutes,
laws, ordinances, rules and regulations;
5.17. NATURE OF BUSINESS. Borrower and each Qualified Obligor shall
continue to engage in business of the same general type as now conducted by
Borrower and each Qualified Obligor and preserve, renew and keep in full force
and effect its corporate existence and all licenses, permits, rights and
privileges necessary or desirable for the normal conduct of such business,
5.18. REOUIRED HEDGE. Borrower shall hedge the floating interest
expense for the full term of the Term Loan and the Converted Term Loan by
maintaining with Bank or other counterparty acceptable to Bank an interest
rate swap agreements in a notional amount equal at all time to the outstanding
principal balance of said loans, and containing such other terms and
conditions as shall be reasonably acceptable to Bank.
5.19 PLEDGE OF STOCK. Borrower and each Guarantor shall from time to time
execute and deliver to Bank a pledge and security agreement, in form and
substance satisfactory to Bank, wherein said parties pledge to Bank a first
priority and exclusive security interest all capital stock or similar equity
interest owned by Borrower or any such Guarantor, in any Subsidiary. Borrower
shall cause Andal Corp. to execute and deliver to Bank a pledge and security
agreement wherein Andal Corp. pledges to Bank a first priority and exclusive
security interest in all stock of MAI owned by Andal Corp.
5.20 ANDAL COLLATERAL. Borrower shall cause Andal Corp. to pledge to MAI,
pursuant to a pledge agreement in form satisfactory to Bank, that certain note
by Eifeler Werkzeuge, Gmbh in the principal sum of S900,O00.00 dated June 15,
1995 and 352,700 shares of the common stock of Integrated Brands, Inc., to
secure the loans by MAI to Andal Corp. permitted under paragraph 6.l(E), (F)
and (G) below.
5.21 UK MANAGEMENT FEE. Borrower shall cause Multi-Arc (U.K.) Limited to
pay to MAI a monthly management fee of $25,000.00 on account of management
services performed by MAI for Multi-Arc (U.K.) Limited.
VI
NEGATIVE COVENANTS OF BORROWER
6.1 LOANS AND ADVANCES AND INVESTMENTS Borrower will not, and will cause
each Guarantor to not without prior written consent of Bank, make any loans or
advances to or investment in any Person except for (A) Investment Obligations;
(B) Loan by any Borrower or any Guarantor to any other Borrower or Guarantor;
(C) the loans evidenced by the MAI Note and the Vagle Note; (D) the loans
evidenced by the Management Notes; B) loans by MAI to Andal Corp. up to the
principal sum of $300,000.00 contemporaneous with the initial funding of the
loans provided for herein to be applied by Andal Corp. on account of the
existing deferred compensation owed to Alan Cohen and Andrew J. Frankel, (F)
loans by MAI to Andal Corp. of up to $295,000.00 contemporaneous with the
initial funding of the loans provided for herein, to be applied by Andal Corp.
on account of the "Fleet Debt" owed to Alan Cohen, Andrew J. Frankel, Paul
Milstein and Peter Flood, and (G) a loan by MAI to Andal Corp. of $50,000.00
contemporaneous with the initial funding of the loans provided for herein, to
be applied by Andal Corp. on account of the Bonus Payment owing to Peter Flood
under that certain Employment Agreement dated August 31,1996.
6.2 FINANCIAL COVENANTS
(A) Tangible Capital Funds. Borrower will not allow the Tangible
Capital Funds of Borrower and each Qualified Obligor to be less than:
(i) $7,500,000.00 from the date hereof through September
29,1998, and
(ii) $8,500,000.00 from September 30, 1998 on.
(B) Current Ratio. Borrower will not allow the Current Ratio of
Borrower and the Qualified Obligors, on a consolidated basis, to be less than
1.5 to 1.0.
(C) Cash Flow Coverage Ratio. Borrower will not allow the Cash Flow
Coverage Ratio of Borrower and the Qualified Obligors, on a consolidated basis,
calculated at the end of each fiscal quarter, to be less
(i) 1.1 to 1.0 through the fiscal quarter ending September30,
1996, and
(ii) 1.2 to 1.0 as of the fiscal quarter ending December 31,
1996, and each fiscal quarter thereafter.
(D) Capital Expenditures. Borrower and all Qualified Obligors will
not in any fiscal year make Capital Expenditures in excess of $4,000,000.00 in
the aggregate, on a non-cumulative basis.
(E) Working Capital. Borrower will not allow the Working Capital
of Borrower and the Qualified Obligors on a consolidated basis, to be less
than $2,000,000.00.
(F) Debt Ratio. Borrower will not allow the ratio of (i) the
Total Liabilities of Borrower and Qualified Obligors, on a consolidated basis,
minus Subordinated Debt to (ii) their Tangible Capital Funds, to exceed 1.8 to
1.0 from the date hereof through September 29,1998, and 1.50 to 1.0 from
September 30, 1998 on.
Compliance with the foregoing covenants shall be calculated as of
the end of each fiscal quarter.
6.3 LIENS Borrower will not allow or suffer any Lien to exist on any of
its or any Qualified Obligor's assets except for Permitted Encumbrances.
6.4 LIMITATION ON INDEBTEDNESS Borrower and each Guarantor will not,
without the prior written consent of Bank, create, incur, assume or suffer to
exist any Indebtedness except Permitted Indebtedness.
6.5 CERTIFICATE OF INCORPORATION AND BY-LAWS Borrower will not amend or
otherwise modify its Certificate of Incorporation or By-Laws.
6.6 TRANSACTIONS AMONG AFFILIATES Except as otherwise expressly set
forth herein, Borrower will not (A) become a party to any transaction with an
Affiliate of Borrower unless the terms and conditions relating to such
transaction are as favorable to Borrower as would be obtainable at the time in
a comparable arms-length transaction with a Person other than an Affiliate or
(B) pay or incur any obligation to pay any management, service, consulting or
similar fees to any Affiliate or pay any operating or other expenses of Andal
Corp. other than a monthly management fee of not more than $25,000.00 to Andal
Corp.
6.7 SPECIAL COVENANTS AS TO ASSETS Borrower covenants that until
satisfaction in full of all Obligations of Borrower to Bank and until
termination of this Agreement: (A) no Inventory shall be stored with a bailee,
warehouseman or similar party without Bank's prior written consent and, if
Bank gives such consent, Borrower will concurrently therewith cause any such
bailee, warehouseman or similar party to issue and deliver to Bank, in form
and substance acceptable to Bank, warehouse receipts therefor in Bank's name.
(B) Borrower will not hold any Goods belonging to third parties or in which
other parties have an interest, including any Goods sold on a bill and hold
basis, except as set forth on Exhibit "A". (C) Borrower will not purchase or
otherwise hold Goods on a consignment basis except as set forth on Exhibit "A".
(D) Except as set forth on Exhibit "A", none of Borrower's Inventory will be
of a nature that contains any labels, trademarks, trade names, or other
identifying characteristics which are the property of third parties and the
use of which by Borrower is in violation of the rights of such third parties
or a violation of any license, royalty or similar agreements with any third
parties. (E) Except as set forth on Exhibit "A", Borrower will not allow any
Goods of Borrower to be held by any Person in the future without the prior
written consent of Bank. (F) Except upon prior written notice to Bank,
Borrower will not in the future purchase any Inventory or Equipment except in
the ordinary course of business from Persons customarily in the business of
selling such Inventory or Equipment. (G) Borrower will not, without prior
written consent of Bank, remove the Collateral from its present location,
except for the removal of Inventory upon its sale; (H) Borrower will not sell
or transfer any Inventory to any Affiliate or Subsidiary. (I) Borrower will
not sell, lease or transfer any of its Equipment or other assets without the
prior written consent of Bank except for sales of Inventory in the ordinary
course of business to good faith purchasers for value. (J) Borrower will not
cause any surety bonds to be issued on its behalf in connection with any
contracts or purchase orders except upon not less than ten (10) days prior
written notice to Bank.
6.8 PREPAYMENTS OF INDEBTEDNESS Borrower will not and will not allow
any Guarantor to prepay or obligate itself to prepay in whole or in part, any
Indebtedness (other than any Indebtedness due hereunder).
6.9 FISCAL YEAR Borrower will not change its fiscal year.
6.10 ISSUANCE OF ADDITIONAL CAPITAL STOCK Borrower will not issue any
additional stock or other equity interest of Borrower or options or warrants
for the issuance of stock or other equity interest of Borrower other than the
issuance of common stock to its existing stockholders and except in accordance
with the Convertible Subordinated Debentures constituting a portion of the
existing Subordinated Debt.
6.11 CHANGE IN ACCOUNTING PRINCIPLES Borrower will not change or permit
any change in accounting principlcs applied to Borrower, except as required by
GAAP.
6.12 SALE AND LEASEBACK Borrower will not, and will not allow any
Guarantor to enter into any arrangement with any Person providing for the
leasing by Borrower or such Qualilied Obligor of property which has been or is
to be sold or transferred by Borrower or such Qualified Obligor to such Person
or to any other Person to whom funds have been or are to be advanced by such
Person on the security of such property or rental obligations of Borrower or
such Qualified Obligor.
6.13 MAINTAIN CORPORATE EXISTENCE AND NATURE OF BUSINESS (A) Borrower
will not, and will not allow any Guarantor, to allow its corporate existence
to be other than in good standing and will not, without the prior written
consent of Bank, dissolve or liquidate, or merge or consolidate with or
acquire or affiliate with any other business entity or form any Subsidiary
except upon compliance with paragraph 5.5 hereof.
(B) Borrower will not, and will now allow any Qualified Obligor, to
change its name without furnishing to Bank at least ten (10) days prior
written notice thereof.
(C) Borrower will not utilize any trade name not set forth on
Exhibit "A" without furnishing to Bank at least ten (10) days prior written
notice thereof.
(D) Borrower will not allow any Qualified Obligor to change the
nature of its business.
6.14 DIVIDENDS; REDEMPTION'S Borrower will not, without the prior written
consent of Bank, pay or declare any cash or property dividends, nor otherwise
make a distribution of capital or income, nor redeem, retire or repurchase any
stock of Borrower, provided that so long as no Default or Event of Default
exists each Borrower other than MAI may declare and pay dividends to its
parent corporation.
6.15 DISPOSAL OF ASSETS Borrower will not allow any Qualified Obligor to
sell, lease, transfer or otherwise dispose of (A) any of the Collateral or (B)
any of its other assets except in the ordinary course of business to third
parties unaffiliated with Borrower in arms length transactions. Borrower will
not and will not allow any Qualified Obligor to sell, discount or otherwise
dispose of any of its notes or Accounts Receivable or other obligations owing
to Borrower or such Qualified Obligor except for the purpose of collection in
the ordinary course of business.
6.16 HAZARDOUS SUBSTANCES Borrower will not cause or permit or allow any
Obligor to cause or permit to exist a Dumping of hazardous substances or
wastes into the atmosphere or waters or onto lands resulting in damage to the
Natural Resources unless the Dumping is pursuant to and in compliance with the
conditions of a permit issued by the appropriate federal, state, or local
governmental authorities.
6.17 SPECIAL COVENANTS AS TO VAGLE NOTE Each Original Borrower covenants
that:
(A) Before or after an Event of Default hereunder, Bank shall be
entitled to receive directly from Vagle any prepayments under the Vagle Note
and after the occurrence of an Event of Default all payments under the Vagle
Note;
(B) Bank shall not be required to take any steps necessary to
preserve any rights against any parties under the Vagle Note;
(C) It will not, with the prior wrilten consent of Bank, amend
modify or terminate the Vagle Note or waive compliance with any of the terms
thereof, or exercise any other rights thereunder;
(D) It will not interfere with Bank's exercise of the rights of the
Original Borrowers under the Vagle Note.
6.18 SPECIAL COVENANTS AS TO MAI NOTE Vagle covenants that:
(A) Before or after an Event of Default hereunder, Bank shall be
entifled to receive directly from MAI any prepayments under the MAI Note and
after the occurrence of an Event of Default all payments under the MAI Note;
(B) Bank shall not be required to take any steps necessary to
preserve any rights against any parties under the MAI Note;
(C) It will not, with the prior written consent of Bank, amend
modify or terminate the MAI Note or waive compliance with any of the terms
thereof, or exercise any other rights thereunder;
(D) It will not interfere with Bank's exercise of the rights of
Vagle under the MAI Note.
VII
EVENTS OF DEFAULT
The occurrence of any of the following shall constitute an Event of
Default:
7.1 NON-PAYMENT Failure on the part of any Obligor to pay any Obligation
to Bank or any Bank Affiliate when due.
7.2 NON-PERFORMANCE Failure on the part of any Obligor to perform when
such perfermance is due any term, covenant or condition contained in any Loan
Document or any other agreement now existing or hereafter entered into with
Bank or any Bank Affiliate, including without limitation any swap agreement
(as defined in 11 U.S.C. Section 101) or in any document executed in
connection with any such agreements and with respect to nonperformance with
the paragraphs 5.l(A)(B) and (C), 5.3, 5.4, 5.6, 5.7, 5.8, 5.10, 5.12, 5.15,
and 5.16 hereof, such performance is not cured within ten (10) days of the
date such performance was due.
7.3 MISREPRESENTATION Any representation, covenant or warranty made by
any Obligor in this Agreement, or any Loan Document, or in connection with any
instrument of guaranty or security furnished to Bank or any Bank Affiliate
shall have proved to have been inaccurate in any substantial or material
respect as of the date or dates with respect to which it is deemed to have
been made.
7.4 OTHER LIEN Borrower or any Obligor shall have caused or permitted a
security interest or Lien, perfected or otherwise, other than the security
interest and Liens specifically provided for or permitted hereunder, to be
created in any of its assets, or shall have failed to take any action
requested by Bank to perfect or protect the security interests and Liens
provided for herein.
7.5 INSOLVENCY Any Obligor shall have applied for or consented to the
appointment of a custodian, receiver, trustee or liquidator of all or a
substantial part of its assets; a custodian shall have been appointed with or
without consent of any Obligor; any Obligor is generally not paying its debts
as they become due; has made a general assignment for the benefit of creditors;
has been adjudicated insolvent; or has filed a voluntary petition in
bankruptcy, or a petition or an answer seeking reorganization or an
arrangement with creditors or to take advantage of any insolvency law, or an
answer admitting the material allegations of a petition in any bankruptcy,
reorganization or insolvency proceeding; or taken corporate action for the
purpose of effecting any of the foregoing; or an order, judgment or decree
shall have been entered, without the application, approval or consent of any
Obligor by any court of competent jurisdiction approving a petition seeking
reorganization of any Obligor, or appointing a receiver, trustee, custodian or
liquidator of any Obligor, or a substantial part of its assets and such order,
judgment or decree shall have continued unstayed and in effect for any period
of forty-five (45) consecutive days; or a petition in bankruptcy shall have
been filed against any Obligor and shall not have been dismissed for a period
of thirty (30) consecutive days, or if an Order for Relief has been entered
under the Bankruptcy Code, or if any Obligor shall have suspended the
transaction of its usual business.
7.6 JUDGMENT OR LIEN Entry of a judgment, issuance of any garnishment,
attachment or distraint, the filing of any lien or of any governmental
attachment against any property of Borrower or any Obligor which entry,
issuance, attachment or filing shall have continued unstayed and in effect for
a period of thirty (30) consecutive days.
7.7 NONCOMPLIANCE WITH LEASES OR LAWS Failure of Borrower or any Obligor
to comply with the terms and conditions of any lease covering the premises
where any of its assets are located, including the Collateral, or with any
orders, ordinances, laws or statutes of any city, state or other governmental
department having jurisdiction with respect to such premises or the conduct of
business thereon.
7.8 ADVERSE CHANGE A Material Adverse Change has occurred of any
Obligor.
7.9 MISREPRESENTATION OF FACT The determination by Bank that a material
misrepresentation of fact has been made by any Obligor in any writing
supplementary or ancillary hereto.
7.10 TRANSFER OF OWNERSHIP The sale or transfer, without the prior
written consent of Bank, of any of the capital stock of Borrower, or without
the prior written consent of Bank, the issuance of any additional capital
stock of Borrower except as permitted under paragraph 6.10 hereof.
7.11 CHANGE IN MANAGEMENT If Peter Flood or Walter Kreil cease to be
actively engaged in the management of Borrower as chief executive officer and
chief financial officer respectively absent the written consent of the Bank to
the contrary in the good faith exercise of its discretion.
7.12 ERISA If (A) any Reportable Event occurs and shall be continuing for
thirty (30) days after notice from Bank to Borrower, or (B) any Plan shall be
terminated, or (C) the Plan administrator of any Plan shall file with the
Pension Benefit Guaranty Corporation ("PBGC") a notice of intention to
terminate such Plan, or (D) the PBGC shall institute proceedings to terminate
any Plan or appoint a trustee to administer any Plan, and, if in any of the
cases set forth in (A) through (D) above, Bank reasonably determines in good
faith that any Plan will be terminated and that the amount of the unfunded
guaranteed benefits (within the meaning of Title IV of ERISA) resulting upon
termination of such Plan would have a material adverse effect on the financial
condition and properties or operation of Borrower if a lien against the assets
of Borrower were to result under ERISA.
7.13 DEFAULT IN OBLIGATIONS TO THIRD PARTIES Borrower or any Obligor is
in default beyond any applicable grace or cure period of any material
obligation to any third party.
7.14 LICENSES If any license or permit necessary for the continued
operation of Borrower's or any Obligor's customary business is revoked,
suspended, terminated or not renewed.
7.15 TRANSFER OF ASSETS. Any Obligor transfers or sells all or
substantially all of its assets, without the prior written consent of Bank.
7.16 TERMINATION OF GUARANTY. Any guarantor of the Obligations of
Borrower to Bank revokes or terminates his (its) guaranty of the Obligations.
7.17 LOAN DOCUMENTS. Any Loan Document ceases to be in full force and
effect or the validity or enforceability thereof is contested by any Obligor
or any representative thereof.
VIII
CONSEOUENCE OF EVFNT OF DEFAULT
In case any Event of Default shall have occurred, then and in every such
Event of Default, Bank may take any or all of the following actions, at the
same time or at different times and in such order as the Bank may determine,
provided that upon the occurrence of an Event of Default under paragraph 7.5
hereof the credit facilities under this Agreement shall automatically
terminate and all Obligations shall automatically be immediately due and
payable.
8.1 ACCELERATION Declare all loans, sums and Obligations owing Bank from
Borrower under this Agreement or any other agreement or loan between Bank and
Borrower and Bank Affiliate to be forthwith due and payable, whereupon all
such sums shall forthwith become due and payable, without presentment, demand,
protest or other notice of any kind, all of which are hereby expressly waived
by Borrower. If there are any outstanding Bank Letters of Credit, Borrower
shall, in addition to paying and satisfying in full all other Obligations to
Bank, pay to Bank an amount equal to the aggregate outstanding balance of all
such Bank Letters of Credit and which shall automatically be subject to a Lien
in favor of Bank to secure all Obligations to Bank with respect to said Bank
Letters of Credit. Any sums paid to Bank shall be applied first to the
Obligations of Borrower to Bank other than with respect to said Bank Letters
of Credit, in such order as Bank may determine and last to the Obligations
with respect to the Bank Letters of Credit.
8.2 POSSESSION Proceed with or without judicial process to take
possession of all or any part of the Collateral provided for herein not
already in the possession of Bank and Borrower agrees that upon receipt of
notice of Bank's intention to take possession of all or any part of said
Collateral, Borrower will do everything reasonably necessary to assemble the
Collateral and make same available to Bank at a place to be designated by Bank.
Borrower hereby waives any and all rights it may have, by statute,
constitution or otherwise to notice or a bearing to determine the probable
cause of Bank to obtain possession, by Court proceedings or otherwise, of the
Collateral provided for in this or in any other agreement with Bank.
8.3 METHODS OF SALE So long as Bank acts in a commercially reasonable
manner, assign, transfer and deliver at any time or from time to time the
whole or any portion of the Collateral or any rights or interest therein in
accordance with the Uniform Commercial Code, and without limiting the scope of
Bank's rights thereunder, Bank may sell the Collateral at public or private
sale, or in any other manner, at such price or prices as Bank may deem best,
and either for cash or credit, or for future delivery, at the option of Bank,
in bulk or in parcels and with or without having the Collateral at the sale or
other disposition. Bank shall have the right to be the purchaser at any public
sale. Bank shall have the right to conduct such sales on Borrower's premises
or elsewhere and shall have the right to use Borrower's premises without
charge for such sales for such time or times as Bank may see fit. Bank is
hereby granted license or other right to use, without charge, Borrower's
labels, patents, copyrights, rights of use of any name, trade secrets, trade
names, trademarks and advertising matter, or any property of a similar nature,
as it pertains to the Collateral, in advertising for sale and selling any
Collateral and Borrower's rights under all licenses and franchise agreements
shall inure to Bank's benefit. Borrower agrees that a reasonable means of
disposition of Accounts shall be for Bank to hold and liquidate any and all
Accounts. In the event of a sale of the Collateral, or any other disposition
thereof, Bank shall apply all proceeds first to all costs and expenses of
disposition, including attorneys' fees, and then to interest, then to the
principal component of the Obligations of Borrower to Bank in such order as
Bank deems appropriate.
8.4 RETENTION OF COLLATERAL Elect, subject to Section 9-505(2) of the
Uniform Commercial Code, to retain the Collateral or any part thereof in
satisfaction of all Obligations due from Borrower to Bank upon notice of such
proposed election to Borrower and any other party as may be required by the
Uniform Commercial Code.
8.5 SET-OFF Bank shall have the right immediately, and without notice or
other action to set-off against any of the Obligor's Obligations to Bank any
sum owed by Bank in any capacity to any Obligor whether due or not, and Bank
shall be deemed to have exercised such right of set-off and to have made a
charge against any such sum immediately upon the occurrence of such Event of
Default, even though the actual book entries may be made at some time
subsequent thereto.
8.6 ATTORNEYS' FEES AND EXPENSES Add to the Obligations of Borrower,
Bank's reasonable expenses to obtain or enforce payment of any Obligations
hereunder or in connection with any insolvency proceedings of Borrower or any
Obligor and the enforcement or liquidation of any debt hereunder shall include
reasonable attorneys' fees plus other legal expenses incurred by Bank.
8.7 DEFAULT INTEREST Increase the rate of interest under any Obligations
to a rate of four (4%) percent in excess of the rate otherwise in effect under
the Obligations. Unless otherwise agreed by Bank, this increase in interest
rate shall he retroactive to the date of the first occurrence of an Event of
Default.
8.8 BANK'S PERFORMANCE OF BORROWER'S OBLIGATION If Borrower fails to
comply with any of the covenants or perform any of its obligations set forth
herein or in any other Loan Document, Bank may, but shall have no obligation
to, perform any such obligations or undertake any act to cause such covenant
to be complied with, including, but not limited to, discharging any Lien on
any asset other than Pertntitted Encumbrances. Any and all sums, and all costs
and expenses incurred by Bank in so performing or causing compliance, shall be
payable on demand together with interest at the default rate provided for in
paragraph 8.7 hereof from the date of any such payment by Bank until the date
paid by Borrower. Any such performance by Bank shall not cure any Default or
Event of Default by Borrower.
8.9 OTHER REMEDIES Exercise any other remedies under the Uniform
Commercial Code or other applicable law, or any other Loan Document, including
but not limited to proceeding to enforce its right by suit in equity, action
at law or other appropriate proceeding, whether for payment or the specific
performance of the covenants or agreements contained in this Agreement or any
other Loan Document.
IX
MISCELLANEOUS
9.1 NO WAIVER Borrower agrees that no delay on the part of Bank in
exercising any power or right hereunder or any other Loan Document shall
operate as a waiver of any such power or right, nor act as a consent to any
departure by Borrower from any of the terms or conditions hereof or thereof,
preclude other or further exercise thereof, or the exercise of any other power
or right. No waiver whatsoever shall be valid unless in writing signed by Bank
and then only to the extent set forth therein.
9.2 MODIFICATION OR AMENDMENT This Agreement and every other Loan
Document cannot be changed orally and cannot be changed by an executory
agreement unless such agreement is in writing and signed by all parties hereto
by their duly authorized officers.
9.3 CERTAIN WAIVER(S) (A) Borrower waives presentment, dishonor and
notice of dishonor, protest and notice of protest of all commercial papers at
any time held by Bank on which Borrower is in any way liable.
(B) Borrower waives any right, if any, it may have to require Bank
to proceed against any Collateral or any other Obligor before proceeding
against Borrower in enforcing any of its rights or remedies, and waives any
right, if any, to claim a fair market value credit with respect to any
Collateral whether before or after the sale or other disposition of any
Collateral.
9.4 ONE INSTRUMENT The provisions of this Agreement shall be in addition
to those of any notes or other evidence of the Obligations held by Bank
relating to this particular transaction, all of which shall be construed as
one instrument.
9.5 LAW OF NEW JERSEY This Agreement and all other Loan Documents and
the rights of the parties hereto and thereto shall be governed by the internal
laws of the State of New Jersey without regard to conflict of laws.
9.6 JURISDICTION Borrower hereby irrevocably consents to the jurisdiction
of the Courts of the State of New Jersey or any Federal Court in such State in
connection with any action or proceeding arising out of or related to this
Agreement or any other Loan Document. In any such litigation, Borrower waives
personal service of any Summons, complaint or other process and agrees that
service may be made by certified or registered mail to it, at the address
provided herein. The Borrower agrees that any action brought by Borrower shall
be commenced and maintained only in a court in the Federal judicial district
or county in which the Bank has its principal place of business in New Jersey.
9.7 SUCCESSORS OR ASSIGNS: JOINT AND SEVERAL LIABILITY This Agreement
and all other Loan Documents shall be binding upon and shalt inure to the
benefit of the parties hereto, their respective successors and assigns,
provided, however, that Borrower shall not have any right to assign any of its
rights hereunder or under any other Loan Documents. The obligations of each
Borrower hereunder and under each other Loan Document shall be joint and
several.
9.8 RIGHTS CUMULATIVE The rights and remedies herein expressed or in any
other Loan Document to be vested in or conferred upon Bank shall be cumulative
and shall be in addition to and not in substitution for or in derogation of
the rights and remedies conferred upon secured creditors by the Uniform
Commercial Code or any other applicable law.
9.9 NOTIFICATION OF DISPOSITION OF COLLATERAL Any notification of a sale
or other disposition of the Collateral will be sufficient if given in the
manner set forth in Paragraph 9.10 hereof not less than five (5) days prior to
the day on which such sales or other disposition will be made, and such
notification shall be deemed reasonable notice.
9.10 ADDRESSES OF NOTICES Any written notice required or permitted to be
given by this Agreement shall be given or made in writing, including telecopy,
and shall be, as elected by the party giving such notice, served personally by
messenger or courier service, telecopied (followed up by a mailing), or mailed
in the United States by prepaid, registered or certified mail, return receipt
requested, to the following:
If to Borrower: Multi-Arc Inc.
200 Roundhill Drive
Rockaway, NJ 07866
FAX: (201)625-2244
with a copy (except for Dillon, Bitar & Luther
routine notices with respect 53 Maple Avenue
to Borrowings bereunder and Moristown, NJ 07963
the like) to: ATTN: Mary A. Powers, Esq.
FAX: (201) 292-2960
Ifto Bank: FIRST UNION NATIONAL BANK
550 Broad Street
Newark, New Jersey 07102
Att: Theodore Bossert
Fax: (201) 565-3908
with a copy (except for STRYKER, TAMS & DILL
routine notices with Two Penn Plaza East
respect to borrowings Newark, New Jersey 07105
hereunder and the like) to Attn: Alan D. Wiener
Fax: (201)491-9692
Any notice given in accordance with the provisions of this paragraph shall be
deemed effective, if hand delivered, on the date of such delivery, or on the
date telecommunicated if telecopied, or if mailed, on the date upon which the
return receipt is signed or delivery refused or the notice is designated by
the postal authorities as not deliverable, as the case may be. Each party may
give notice to each of the other parties of a change of its address for the
purpose of giving notice under this paragraph which, thereafter until changed
by like notice, shall be the address of such party for purposes of this
Agreement.
9.11 TITLES The titles and headings indicated herein are inserted for
convenience only and shall not be considered a part of this Agreement or in
any way limit the construction or interpretation of this Agreement.
9.12 DISCLOSURE Bank is hereby authorized to disclose any financial or
other information it may have about Borrower to any present or future
participant or prospective participant, any regulatory body or agency having
jurisdiction over Bank, or to any Person which succeeds to all or any part of
Bank's Interest herein.
9.13 SALE, ASSIGNMENT OR PARTICIPATIONS. The Bank may from time to time
sell or assign, in whole or in part, or grant participations in some or all of
the Loan Documents and/or the Obligations evidenced hereby. The holder of any
such sale, assignment or participation, if the applicable agreement between
the Bank and such holder so provides, (i) shall be entitled to all of the
rights, obligations and benefits of the Bank and (ii) shall be deemed to hold
and may exercise the rights of setoff or banker's lien with respect to any and
all obligations of such holder to the Borrower, in each case as fully as
though the Borrower were directly indebted to such holder. The Bank may in its
discretion, give notice to the Borrower of such sale, assignment or
participation; however, the failure to give such notice shall not affect any
of the Bank's or such holder's rights hereunder. The Borrower authorizes the
Bank to provide information concerning the Borrower to any prospective
purchaser, assignee or participant. The information provided may include, but
is not limited to, amounts, terms, balances, payment history, return item
history and any financial or other information about the Borrower. The
Borrower agrees to indemnify, defend, release the Bank, and hold the Bank
harmless, at the Borrower's cost and expense, from and against any and all
lawsuits, claims, actions, proceedings, or suits against the Bank or against
the Borrower and the Bank, arising out of or relating to the Bank's reporting
or disclosure of such information.
9.14 INTEREST LIMITATION It is the intention of Bank and Borrower to
conform strictly to the Laws of the State of New Jersey or the laws of such
other jurisdiction which may be found to apply to the subject transaction
relating to the maximum rate of interest which may be lawfully contracted for
or charged. Nothing contained in this Agreement or any other Loan Document
shall be construed to mean that Borrower has contracted to pay or is obligated
to pay any sum or sums to Bank in excess of those which may lawfully be
charged or contracted for under applicable law of the State of New Jersey or
other applicable law. If any provision of this Agreement or ally of the other
Loan Documents shall require payment of any sum or sums of interest in excess
of the maximum Permitted rate which may be lawfully contracted for or charged,
then Borrower and Bank agree that such result is as a consequence of their
inadvertence and/or mistake, and the interest charge for which Borrower is
liable under this instrument shall be recomputed for the sole and limited
purpose of determining the extent of the obligations and liabilities of
Borrower to Bank so that the interest charges for which Borrower is liable
shall not exceed the maxinium permitted rate which is determined to be
applicable. Additionally, any sums of interest which are collected by Bank
from Borrower or other source in connection with the loan evidenced hereby
which are in excess of the maximum permitted rate shall, for the sole and
limited purpose of determining the extent of the obligations and liabilities
of Borrower to Bank, be credited against the amount of principal for which
Borrower is liable to Bank after giving effect to any recomputation and
adjustment required pursuant to the foregoing provisions of this section, or
if such outstanding principal balance and interest are paid in full, any such
excess shall be remitted by Bank to Borrower.
9.15 INDEMNIFICATION Borrower hereby agrees to and does hereby indemnify,
protect, defend and save harmless Bank and any member, officer, director,
official, agent, employee and attorney of Bank, and its respective heirs,
successors and assigns (collectively, the "Indemnified Parties"), from and
against any and all losses, damages, expenses or liabilities of any kind or
nature and from any suits, claims or demands, including reasonable counsel
fees incurred in investigating or defending such claim, suffered by any of
them and caused by, relating to, arising out of, resulting from, or in any way
connected with the Loan Documents and the transactions contemplated therein or
the Collateral (unless caused by the gross negligence or willful misconduct of
the Indemnified Parties) including, without limitation: (i) losses, damages,
expenses or liabilities sustained by Bank in connection with any environmental
cleanup or other remedy required or mandated by any environmental law; (ii)
any untrue statement of a material fact contained in information submitted to
Bank by Borrower and/or any Obligor or the omission of any material fact
necessary to be stated therein in order to make such statement not misleading
or incomplete; (iii) the failure of Borrower and/or any Obligor to perform any
obligations herein required to be performed by Borrower and/or any Obligor;
and (iv) the ownership, construction, occupancy, operations, use and
maintenance of any of Borrower's and/or the Obligor's properties. The
provisions of this paragraph shall survive termination of this Agreement and
the other Loan Documents.
9.16 SEVERABILITY AND CONSISTENCY The illegality, unenforceability or
inconsistency of any provisions of this Agreement or any instrument or
agreement required hereunder shall not in any way affect or impair the
legality, enforceability or consistency of the remaining provisions of this
Agreement or any instrument or agreement required hereunder. The Loan
Documents are intended to be consistent. However, in the event of any
inconsistencies among any of the Loan Documents, such inconsistency shall not
affect the validity or enforceability of Loan Document. The Borrower agrees
that in the event of any inconsistency or ambiguity in any of the Loan
Documents, the Loan Documents shall not be construed against any one party but
shall be interpreted consistent with the Bank's policies and procedures.
9.17 INTEGRATION; NO THIRD PARTY BENEFICIARY This Agreement and the other
Loan Documents constitute the sole agreement of the parties with respect to
the subject matter hereof and thereof and supersede all oral negotiations and
prior writings with respect to the subject matter hereof and thereof. The
Borrower and the Bank do not intend any of the benefits of this Agreement to
inure to any third party and no third party shall have any status, right, or
entitlement under this Agreemeut.
9.18 JUDICIAL PROCEEDINGS: WAIVERS THE BORROWER AND THE BANK
ACKNOWLEDGE AND AGREE THAT (i) ANY SUIT, ACTION OR PROCEEDING, WHETHER CLAIM
OR COUNTERCLAIM, BROUGHT OR INSTITUTED BY THE BANK OR THE BORROWER OR ANY
SUCCESSOR OR ASSIGN OF THE BANK OR THE BORROWER, OR ON WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE DEALINGS OF THE PARTIES WITH
RESPECT HERETO OR THERETO SHALL BE TRIED ONLY BY A COURT AND NOT BY A JURY AND
EACH PARTY WAIVES THE RIGHT TO TRIAL BY JURY; (ii) EACH WAIVES ANY RIGHT IT
MAY HAVE TO CLAIM OR RECOVER, IN ANY SUCH SUIT, ACTION OR PROCEEDING, ANY
SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER
THAN, OR IN ADDITION TO, ACTUAL DAMAGES; AND (ii) THIS SECTION IS A SPECIFIC
AND MATERIAL ASPECT OF THIS AGREEMENT AND THE BANK WOULD NOT EXECUTE THIS
AGREEMENT IF THE WAIVERS SET FORTH IN THIS SECTION WERE NOT A PART OF THIS
AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their proper and duly authorized officers as of the
day and year first above written.
Multi-Arc Inc.
By: /s/ Peter D. Flood
Name: Peter D. Flood
Title: President
Multi-Arc, Inc.
By: /s/ Peter D. Flood
Name: Peter D. Flood
Title: President
Vagle Technology, Inc.
By: /s/ Peter D. Flood
Name: Peter D. Flood
Title: President
Multi-Arc of Ohio, Inc.
By: /s/ Peter D. Flood
Name: Peter D. Flood
Title: President
Scientific Coatings of Illinois, Inc.
By: /s/ Peter D. Flood
Name: Peter D. Flood
Title: President
Scientific Coatings, Inc.
By: /s/ Peter D. Flood
Name: Peter D. Flood
Title: President
SCI Coatings Southwest Inc
By: /s/ Peter D. Flood
Name: Peter D. Flood
Title: President
First Union National Bank
By: /s/ Peter C. DeLuca
Name: Peter DeLuca
Title Vice President
<PAGE>
EXHIBIT 10(r)
EMPLOYMENT AGREEMENT
AGREEMENT, dated as of the 31st day of August 1996, between Andal Corp.
(the "Company"), a New York corporation, and Walter N. Kreil, Jr. (the
"Executive").
W I T N E S S E T H:
WHEREAS, the Company desires to employ the Executive on the terms and
conditions set forth in this Agreement and the Executive is willing to accept
employment with the Company on such terms and conditions; now, therefore,
IN CONSIDERATION of the premises and the mutual covenants herein
contained, the parties hereto hereby agree as follows:
SECTION 1. TERM OF EMPLOYMENT.
The Company will employ the Executive, and the Executive hereby accepts
employment by the Company, on the terms and conditions contained in this
Agreement for the period commencing upon the date of this Agreement and ending
August 31, 2001 (the "Initial Term"). The term of the Executive's employment
under this Agreement (the "Term") will continue thereafter year to year (each
extended year-term, an "Extended Term"), unless either party gives to the
other notice at least one hundred and eighty (180) days prior to end of the
Initial Term (or, if this Agreement is extended past the Initial Term, the end
of any Extended Term) of such party's intention to terminate this Agreement as
of the end of such Term or Extended Term.
In no event will any Extended Term extend beyond the end of the year next
following the Executive's 70th birthday (such date being referred to in
Section 5.1 as the "Retirement Date").
SECTION 2. DUTIES.
2.1 During the Term, the Executive shall serve as the Company's Chief
Financial Officer, with such additions to the scope of the duties of his
employment within the Company's field of operations or those of the Company's
subsidiaries or affiliated corporations as the Board of Directors of the
Company shall determine.
2.2 If elected by the Board, the Executive agrees to serve as a
member of the Board of Directors of the Company and as Executive Vice-
President of The Company.
2.3 The Executive shall devote his time, energy and skill during
regular business hours to the affairs of the Company and its subsidiaries and
affiliated corporations and to the promotion of their interests, provided that
the Executive may serve as a director of such business and not-for-profit
corporations as the Board of Directors shall consider not materially adverse
to the interests of the Company.
SECTION 3. CURRENT COMPENSATION.
3.1 Signing Bonus. Upon signing the Agreement, the Company shall
become immediately obligated to pay to the Executive a bonus of $50,000 of
which $10,000 (each payment, a "Bonus Payment," and collectively, the "Bonus
Payments") shall be paid within ninety days of the date of this Agreement and
the remainder as soon as possible thereafter. The Company may defer such
payment until such time as the Board of Directors determines that the
Company's cash flow is sufficient to make such payment.
3.2 Base Compensation. During the Term, the Company shall cause its
principal subsidiary, Multi-Arc Inc. ("MAI"), to pay the Executive a Base
Compensation as follows in the indicated contract years:
1st $149,350
2nd 156,500
3rd 164,000
4th 172,000
5th 180,000
The Base Compensation shall be payable in equal installments in accordance
with the Company's normal practices for payment of executives. It is
understood that the aforementioned Base Compensation is a minimum annual Base
Compensation and is subject to such additional compensation and increases as
the Board of Directors, in its sole discretion, may award; provided, however,
that nothing contained herein shall be deemed to create any obligation on the
part of the Board of Directors to exercise its discretion in favor of any such
increase in Base Compensation or to constitute a representation that any such
increase will be awarded.
The Company shall cause MAI to provide supplements to the Executive in
the form of salary to enable him to pay interest on funds lent to the Company
in the aggregate amount of $5,000 a year, to be reduced each year in the
amount of $50 per $1,000 of principal amount of indebtedness retired.
3.3 Incentive Compensation. During the term of the Agreement, the
Company shall provide an incentive program for executive officers, which shall
be the reasonable equivalent to the existing Corporate Management Incentive
Plan of MAI, effective as of the date of this Agreement, a copy of which has
been provided to the Executive and which is incorporated herein by reference.
3.4 Reimbursement for Expenses. During the Term, the Company will
further reimburse the Executive for all documented expenses properly incurred
by the Executive in the performance of the Executive's duties under this
Agreement. In addition, the Company shall pay to the Executive a monthly car
allowance of not more than $500 per month in lieu of providing a company-
leased automobile.
3.5 Other Benefits. In addition to the benefits specified in
Sections 3.1 through 3.4, during the Term the Executive will be entitled to
participate in any present and future life, disability or health insurance,
pension or retirement plan adopted by the Company for the general and overall
benefit of principal executives of the Company. The Board of Directors may,
in its absolute discretion, determine to provide greater or different benefits
than required hereby to the Executive. Executive acknowledges that his
incentive compensation and other entitlements hereunder shall be in lieu of
any right he might otherwise have to participate in any profit-sharing or
employee stock membership plan or other compensation or incentive plan of the
Company or MAI. Notwithstanding the foregoing, in the event the Company
adopts a new stock option plan, Executive will be a participant subject to the
discretion of the Board of Directors.
SECTION 4. NONASSIGNABILITY OF BENEFITS.
No benefit under this Agreement shall be subject in any manner to
anticipation, alienation, sale, transfer or assignment by the Executive, his
beneficiaries or his estate, nor shall any benefit in any manner be liable for
or subject to attachments or legal process for or against the Executive, his
beneficiaries or his estate.
SECTION 5. TERMINATION OF AGREEMENT.
5.1 Termination Generally. The Term, and all liabilities and
obligations of the Company to the Executive under this Agreement, shall cease
and terminate upon the earliest of the events specified below, provided that
such termination shall not affect the right of the Executive or his estate or
beneficiaries to receive any salary or bonus accrued but unpaid, and shall not
affect any vested rights which the Executive may have at the time of his death
pursuant to any insurance or other death benefit plans or any other plans,
policies or arrangements of the Company or any of its subsidiaries or
affiliated corporations. The dates and events upon which such termination
shall occur are:
(a) the disability of the Executive, subject to Section 5.3; or
(b) the death of the Executive, subject to Section 5.3; or
(c) the occurrence of the Retirement Date described in Section
1.0; or
(d) termination for cause as described in Section 5.2
For purposes of this Agreement, "disability" shall mean the inability of
the Executive to perform his duties hereunder for a period of six (6)
consecutive calendar months, or an aggregate of eight (8) calendar months in
any twelve (12) month-period, by virtue of illness or physical or mental
incapacity or disability (from any cause or causes whatsoever) in
substantially the manner and to the extent required hereunder, as determined
by the Board of Directors of the Company in its reasonable discretion.
5.2 Termination for Cause. The Company may terminate Executive's
employment, immediately and without notice, for cause, in which event after
the date of termination no further Base Compensation or Incentive Compensation
shall be payable to Executive. The term "cause" shall mean (i) a material
breach by Executive of the provisions of Sections 6, 7, 8 or 9 of this
Agreement, (ii) repeated acts of dishonesty, (iii) breach of trust or other
action by which Executive obtains personal gain at the expense of or to the
detriment of the Company, (iv) repeated failure to perform customary duties of
his position following notice from the Board (with Executive not participating
or voting if Executive is a director) or (v) conviction of Executive of any
felony or any other crime relating to the performance of his duties.
5.3 Death or Disability. If the Executive dies or is disabled during
the Term, the Executive's estate or the Executive, as the case may be, shall
be entitled to receive the Base Compensation provided in Section 3.2 for the
calendar quarter during which death or disability occurs and the succeeding
two calendar quarters.
SECTION 6. ASSIGNMENT AND DISCLOSURE OF INVENTIONS.
6.1 For purposes of this Agreement, the term "Inventions" means all
inventions, discoveries, improvements or modifications to inventions or
discoveries, whether patentable or not, which are conceived of, reduced to
practice, or both conceived of and reduced to practice, by the Executive at
any time during the employee's period of employment and which are used or
useful by the Company in any of its lines of business.
6.2 The Executive hereby assigns all Inventions to the Company.
6.3 The Executive will disclose any Invention promptly to the Company
and the Executive hereby assigns the Company all rights to any Invention. The
Executive will sign all documents necessary for the Company to apply for and
obtain domestic and foreign patents for Inventions. The obligations of the
Executive to sign such documents will continue beyond the termination of
employment with respect to Inventions, discoveries and improvements, whether
patentable or not, conceived or made by the Executive during the period of
employment.
SECTION 7. AVOIDANCE OF CONFLICT OF INTEREST.
While employed by the Company, Executive will not engage in any other
business activity which conflicts with Executive's duties to the Company.
Under no circumstances will Executive be employed by, be a consultant to or
otherwise act on behalf of any competitor or have any financial interest in
any competitor of the Company; provided, however, that this Agreement does not
prohibit investment of a reasonable part of Executive's assets in the stock or
securities of any competitor whose stock or securities are publicly traded.
SECTION 8. CONFIDENTIALITY.
8.1 Executive recognizes and acknowledges that the systems and
software which the Company owns, plans or develops, or acquires from third
parties, whether for its own use or for use by its clients, are developed as a
result of an expenditure of time and expense, are confidential in nature and
are the trade secrets, proprietary to and the property of the Company.
Executive further recognizes and acknowledges that in order to enable the
Company to perform services for its clients, such clients may furnish to the
Company confidential information concerning their business affairs, property,
methods of operation, lists of customers and customer information or other
data and that the good will afforded to the Company depends upon, among other
things, the Company and its Executives keeping such services and information
confidential.
8.2 For the purposes of this Agreement, a "Trade Secret" is any
scientific or technical information, design, process, procedure, formula or
improvement that is valuable and not generally known to competitors of the
Company including but not limited to computer software programs. Examples
are the specialized information and technology relating to the Company's
business. "Confidential Information" is any data or information, other than
Trade Secrets, that is competitively sensitive, and not generally known to the
public, including but not limited to the Company's customer lists, prospect
lists, trading manuals, product development plans, marketing strategies and
internal performance statistics.
8.3 Executive shall not, for the duration of this Agreement, nor any
time thereafter, without the prior written consent of the Company, disclose
any Trade Secret or Confidential Information of the Company or its clients to
its clients or any third parties, or, permit or cause any person or
organization:
(a) to copy or duplicate any physical form of the Company's
Trade Secrets or Confidential Information to or from any medium except for
archival, security or other regular business purposes; or
(b) create or recreate, or attempt to create or recreate, the
source programs, object code or any other aspect of the Trade Secrets or
Confidential Information of the Company, in all or in part; or
(c) to place such Trade Secrets or Confidential Information into
the public domain.
8.4 Executive shall limit access to all media containing the
Company's and or its clients' Trade Secrets or Confidential Information to its
employees and agents necessary to permit Executive to perform tasks require
pursuant to this Agreement. Executive further agrees to store all media and
documentation upon which the Company's and or its clients' Trade Secrets and
Confidential Information are recorded in a secure place, except when being
used, and will exercise all other reasonable precautions to prevent
unauthorized access, whether direct or indirect. Executive shall not
disclose, transfer, use, copy or allow access to any such Trade Secrets or
Confidential Information to any employees or third parties.
8.5 Upon the request of the Company and, in any event, upon the
termination of Executive's employment, Executive will leave with the Company
and or its clients' all computer programs, documentations, code, memoranda,
notes, records, drawings, manuals, flow charts, or other documents pertaining
to the Company's business or Executive's employment (including all copies
thereof). Executive will also leave with the Company and or its clients all
materials involving any Trade Secrets or Confidential Information of the
Company or the Company's clients.
8.6 During the course of employment, Executive agrees to treat all
Trade Secrets and Confidential Information of the Company and its clients as
confidential and to take all necessary precautions against disclosure of such
information to third parties during and after the term of this Agreement.
SECTION 9. RESTRICTIONS ON COMPETITION AND SOLICITATION.
9.1 Executive recognizes that the scope of the Company's business is
international in scope and not just limited to any single state or region of
the United States. Executive covenants and agrees that from the date hereof
and for a period of two (2) years after termination of this Agreement, he will
not engage in any business, whether as officer, director, consultant, partner,
guarantor, principal, agent, employee, advisor or in any other manner, which
competes with the business of the Company as it is engaged in at the time of
the termination of this Agreement, unless at the time of such termination or
thereafter during the non-competition period the Company ceases to be engaged
in such activity.
9.2 Executive further agrees that, during the term of this Agreement,
and for a period of two (2) years thereafter, Executive shall not attempt to
sell any competing goods or services to any client to whom the Company
introduces Executive, nor shall Executive do any work for or contract with any
client or customer to whom the Company introduces Executive.
9.3 During employment with the Company, and for a period of 2 years
thereafter, Executive will not solicit, entice or persuade any other Executive
of the Company or the Company's clients to leave the services of their Company
for any reason.
9.4 Executive agrees that the foregoing restrictions are fair and
reasonable considering the scope of Executive's employment, salary and
benefits provided by the Company and Executive further agrees that such
restrictions will not unduly restrict or prohibit Executive from obtaining
gainful employment in his or her chosen profession.
9.5 The Company recognizes that the scope of this Section 9 may
prevent Executive from obtaining comparable employment during the two (2) year
period and, therefore, agrees to pay to Executive during such two (2) year
period the Base Compensation, plus all employee benefits, reduced by any
earned income from other sources received by Executive.
SECTION 10. INJUNCTIVE RELIEF.
Executive acknowledges that disclosure of any Trade Secrets or disclosure
of any Confidential Information or any breach of any restrictive agreements
contained herein will give rise to irreparable injury to Employer or clients
of the Company. The damage done to the Company will be difficult to ascertain
and the Company will be inadequately compensated in damages. Accordingly, the
Company may seek and obtain injunctive relief against the breach or threatened
breach of the foregoing undertakings, in addition to any other legal remedies
which may be available. The Executive further acknowledges and agrees that
covenants contained herein are necessary for the protection of the Company's
legitimate business interests and are reasonable in scope and content.
SECTION 11. SEVERABILITY.
If any provision of this Agreement shall, for any reason, be adjudged by
any court of competent jurisdiction to be invalid or unenforceable, such
judgment shall not affect, impair or invalidate the remainder of this
Agreement but shall be confined in its operation to the provision of this
Agreement directly involved in the controversy in which such judgment shall
have been rendered.
SECTION 12. SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and inure to the benefit of the
Company, its successors and assigns and shall be binding upon and inure to the
benefit of the Executive and his heirs, executors, administrators, legal
representatives and assigns.
SECTION 13. NOTICES.
All notices, requests, demands and other communications hereunder must be
in writing and shall be deemed to have been duly given if mailed by first
class certified mail, return receipt requested, postage prepaid, addressed as
follows:
(a) to the Executive:
Walter N. Kreil, Jr.
875 Bradford Avenue
Westfield, NJ 07090
(b) to the Company:
President
Andal Corp.
200 Roundhill Drive
Rockaway, NJ 07866
Either party by notice in writing mailed to the other as hereunder provided
may change the address to which future notices to such party shall be mailed.
SECTION 14. MISCELLANEOUS.
This Agreement shall be construed and enforced in accordance with, and
governed by, the laws of the State of New Jersey, without reference to
principles of conflicts of law. This Agreement embodies the entire agreement
and understanding between the Company and the Executive and supersedes all
prior agreements and understandings relating to the subject matter hereof.
This Agreement may not be modified or amended or any term or provision thereof
waived or discharged except in writing signed by the party against whom such
amendment, modification, waiver or discharge is sought to be enforced. The
headings of this Agreement are for the purpose of reference only and shall not
limit or otherwise affect the meaning thereof.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
THE COMPANY:
ANDAL CORP.
PETER D. FLOOD
By:____________________________________
Peter D. Flood, Chairman of the Board
THE EXECUTIVE:
WALTER N. KREIL
_______________________________________
Walter N. Kreil
<PAGE>
EXHIBIT 22
SIGNIFICANT SUBSIDIARIES OF THE COMPANY
State or Other
Jurisdiction of
Incorporation or
Name Organization
Andal Corp. (parent) New York
Multi-Arc Inc. Delaware
Multi-Arc, Inc. Minnesota
Multi-Arc (U. K.) Ltd. United Kingdom
Multi-Arc of Ohio, Inc. Ohio
Vagle Technology, Inc. Michigan
SCI Coatings Southwest, Inc. Texas
Scientific Coatings, Inc. Michigan
Multi-Arc Inc. Canada
Scientific Coatings of
Illinois, Inc. Michigan
<PAGE>
EXHIBIT 24(a)
Kelly Graham Myska & Partners 211 Water Street North
Chartered Accountants P. O. Box 880
Cambridge, Ontario N1R 5X9
Telephone (519) 623-1870
FAX (519) 623-9490
We consent to the use of our reports on the statement of earnings, financial
position and changes in cash position for the fiscal year ended September 30,
1996 of Multi-Arc Inc. included in the Annual Report of Form 10-K of Andal
Corporation and the Registration Statement S-9 of Andal Corporation which
incorporates such Annual Report by reference.
/s/ Kelly Graham Myska & Partners
Cambridge, Ontario Chartered Accountants
November 1, 1996
<PAGE>
EXHIBIT 24(b)
KPMG
Quayside House Tel +44 (0) 191 232 8815
110 Quayide Fax +44 (0) 191 232 3391
Newcastle upon Tyne
NE1 3DX
Private & confidential
WN Kreil Esq
Multi-Arc Scientific Coatings
200 Roundhill Drive Our ref pbm/321
Rockaway
NJ 07866 Contact Paul Moran
United States of America 0191 401 3786
8 January 1997
Dear Sir
Multi-Arc (UK) Limited
On 14 December 1994 we gave our consent to the use of our audit reports for
the purposes of the 1994 filing requirements of Andal. These audit reports
were issued on the financial statements of Multi-Arc (UK) Limited for the year
ended 30 September 1994 and were contained in our letter of 14 December 1994.
We hereby confirm that we consent to the use of these reports for the purposes
of the 1996 filing requirements of Andal.
Yours faithfully
/s/ KPMG
KPMG
KPMG is registered to carry on INVESTOR IN PEOPLE
Member firm of audit work and authorised to
KPMG International carry on investment business by
the Institute of Chartered
Accountants in England and Wales.
The principal place of business
is 8 Salisbury Square, London
EC4Y 8BB where a list of partners'
names is open to inspection.
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> SEP-30-1996
<PERIOD-END> SEP-30-1996
<CASH> 552
<SECURITIES> 0
<RECEIVABLES> 5,347
<ALLOWANCES> 95
<INVENTORY> 1,553
<CURRENT-ASSETS> 8,214
<PP&E> 29,967
<DEPRECIATION> 17,689
<TOTAL-ASSETS> 27,196
<CURRENT-LIABILITIES> 10,545
<BONDS> 10,181
0
0
<COMMON> 8,947
<OTHER-SE> (4,902)
<TOTAL-LIABILITY-AND-EQUITY> 27,196
<SALES> 31,065
<TOTAL-REVENUES> 31,615
<CGS> 15,740
<TOTAL-COSTS> 29,980
<OTHER-EXPENSES> (6,008)
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 1,734
<INCOME-PRETAX> 5,909
<INCOME-TAX> (2,242)
<INCOME-CONTINUING> 8,151
<DISCONTINUED> 234
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 8,385
<EPS-PRIMARY> 24.69
<EPS-DILUTED> 24.69
</TABLE>
