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FORM 10-K
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
(Mark One)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended June 30, 1999
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from __________to ___________
Commission file number 0-11230
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Regis Corporation
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(Exact name of registrant as specified in its charter)
Minnesota 41-0749934
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State or other jurisdiction (I.R.S. Employer
of incorporation or organization Identification No.)
7201 Metro Boulevard, Edina, Minnesota 55439
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (612) 947-7777
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Securities registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which registered
None None
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Securities registered pursuant to section 12(g) of the Act:
Common Stock, Par Value $.05 per share
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(Title of class)
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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
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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. [ ]
The aggregate market value of the voting stock held by nonaffiliates of
registrant (based upon closing price of $19.875 per share as of September 3,
1999, as quoted on the NASDAQ), was $769,245,420.
The number of outstanding shares of the registrant's common stock, par
value $.05 per share, as of September 3, 1999, was 38,704,172.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the Registrant's Proxy Statement dated September 15, 1999 and
Annual Report to Shareholders for the year ended June 30, 1999, are incorporated
by reference into Parts I, II and III.
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PART I
ITEM 1. BUSINESS
BACKGROUND
Regis Corporation (the Company), based in Minneapolis, Minnesota, is the largest
owner, operator, franchisor, and consolidator of hair and retail product salons
in the world. The Regis worldwide operations include 4,954 hairstyling salons
at June 30, 1999 operating in two segments: domestic and international. The
Company's domestic operations include 4,650 salons operated and franchised
primarily under the brand names of Regis Salons, MasterCuts, Trade Secret,
SmartStyle, Supercuts and Cost Cutters. The Company's international operations
include 304 salons located in the United Kingdom (U.K.). The Company has more
than 31,000 employees worldwide.
INDUSTRY OVERVIEW
Management estimates that annual revenues of the haircare industry are $45
billion in the United States and $90 billion worldwide. The industry is highly
fragmented with the vast majority of haircare salons independently owned.
However, the influence of chains, both franchise and company-owned, has
increased substantially, although still accounting for a small percentage of
total locations. Management believes that chains will continue to increase
their presence. Management also believes that the demand for salon services and
products will increase in the next decade as the population ages and desires
additional haircare services, such as coloring.
BUSINESS STRATEGY
The Company's goal is to provide high quality haircare services and products to
customers in different market groups through physically attractive salons
located in high profile and convenient locations. The key elements of the
Company's strategy to achieve these goals are the following:
CONSISTENT, QUALITY SERVICE. The Company is committed to meeting its customer's
haircare needs by providing competitively priced services and products in
convenient locations with professional and knowledgeable hairstylists. The
Company's operations and marketing emphasize high-quality services to create
customer loyalty, to encourage referrals and to distinguish the Company's salons
from its competitors. The major services supplied by the Company's salons are
haircutting and styling, hair coloring, shampooing, conditioning and permanent
waving. To promote quality and consistency of services provided throughout the
Company's salons, Regis has full and part-time artistic directors whose duties
are to teach and train salon operators and to instruct the stylists in current
styling trends. During fiscal 1999, the Company and its franchisees provided
services to approximately 98 million customers worldwide.
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MALL-BASED LOCATIONS. As the largest national mall-based operator in the hair
salon industry, the Company has the ability to obtain desirable locations in
high-profile, regional malls anchored by major department stores. Mall owners
and developers typically seek retailers such as Regis due to the Company's
financial strength, successful salon operations and status as a national mall
tenant. The Company's locations, which are aesthetically appealing and designed
to attract customers from mall shoppers, provide a steady source of new
business.
STRIP-CENTER-BASED LOCATIONS. The mergers with Supercuts, Inc. (Supercuts) in
October 1996 and The Barbers, Hairstyling for Men & Women, Inc. (The Barbers) in
May 1999 position the Company in the rapidly growing strip shopping center
segment of the retail haircare market in the United States. In the past three
years, the Company has grown this division to be a significant part of its
operations with 2,282 salons as of June 30, 1999. The Company's strip center
salons are conveniently located in strip shopping centers with adequate traffic,
appropriate trade area demographics, good visibility within the center or from
adjoining streets, effective signage, easy access and adequate parking. The
Company seeks to locate its salons in so-called "power strips", anchored by the
number one or two grocery chain in the specific market or alternatively, a major
mass merchant. In addition, the Company has added 183 company-owned strip
center salons, operating primarily as Hair Masters or Style America Salons,
through acquisitions to its strip center salon base.
MULTIPLE SALON CONCEPTS. Regis operates salons primarily under six concepts:
Regis Salons, MasterCuts, Trade Secret, Wal-Mart/SmartStyle, Strip Center Salons
(primarily Supercuts and Cost Cutters) and International. Regis' various salon
concepts in the United States address the major segments of the salon market.
The Company's regional mall salon concepts provide the Company with the ability
to have multiple locations within a single mall. Regis Salons appeals primarily
to women and are positioned at the moderate-to-upscale end of the salon market.
MasterCuts appeal to the more value-conscious customer with promotional or
discount prices and have a higher percentage of men and children as customers.
Trade Secret provides hairstyling service and a broad selection of quality
haircare and beauty products sold only through professional salons. Because the
square footage for each of these concepts is approximately the same, the Company
has the ability to determine which salon concept is best suited to a new
location and change the concept of existing salons to meet customer preference
or demographic changes in the salon's market.
In addition, the Company also operates salons outside the mall, as previously
mentioned. The company's Strip Center Salons division includes salons operated
or franchised under the Supercuts, Cost Cutters, City Looks and We Care Hair,
Hair Masters and Style America brand names. Supercuts, the Company's most
recognized brand, targets the adult male looking for consistently high quality,
affordable hair cuts in a convenient, no appointment setting. Through its fiscal
1999 merger with The Barbers, the Company added 783 franchised strip center
salons operating under within three concepts: Cost Cutters, City Looks and We
Care Hair. Cost Cutters salons provide high quality, value-priced hair care
services for men, women and children. City Looks salons are higher-end, full
service concepts based in upper-end strip centers and regional
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centers. We Care Hair Salons offer full-service hair, nails, skincare and
tanning in strip centers at affordable prices. The Company has also added
183 other company-owned strip center salons through its acquisition strategy
in the past two years, which primarily operate under the Hair Masters and
Style America brands. Both concepts are full-service, however, Style America
caters to time-pressed, value-orientated families, while Hair Masters offers
moderately-priced services to a predominately female demographic.
SmartStyle Family Hair Salons located in Wal-Mart stores and supercenters offer
promotionally priced, family-oriented hair care. In fiscal 1999, Regis became
the primary provider of Wal-Mart salon services as a result of the merger with
The Barbers, adding 199 (158 franchised) Cost Cutter salons located in Wal-Mart
stores and supercenters. As of June 30, 1999, the Company operated or franchised
a total 544 salons in Wal-Marts. This market position, coupled with Wal-Mart's
renowned expansion provides an excellent opportunity for the Company.
The Company's International salons are located in department stores, hotels and
stand-alone locations and are primarily focused on the moderate-to-upscale
market.
EXPANSION. The Company has grown through increased revenues from existing
salons, constructing additional salons, and mergers and acquisitions. Since
1994, the Company has added 3,475 net units (including franchised salons) to its
worldwide salon base from new salon construction as well as mergers and
acquisitions. During this same period of time, the Company added new salon
concepts, Trade Secret and SmartStyle, merged with Supercuts and The Barbers,
and expanded its Regis Salons and MasterCuts concepts. In addition to
continuing its salon acquisition strategy, the Company expects to construct
about 360 new company-owned salons and complete approximately 125 major
remodeling and conversion projects during fiscal 2000.
The Company intends to continue to focus future growth of salons in strip
shopping centers across the United States as it adds additional company-owned
salons and assists current and new franchisees in their expansion and market
development. The Company believes the growth opportunities in the strip
shopping center segment of the retail haircare market in the United States are
vast, and will complement the Company's continuing growth of its mall-based
concepts. The Company does not intend to refocus other concepts, located in
enclosed shopping malls throughout the United States, into the strip shopping
center segment of the retail haircare market, nor does it intend to refocus its
strip center salons into the enclosed shopping mall segment of the retail
haircare market in the United States. In addition, the company plans to
continue pursuing expansion opportunities through adding company-owned and
franchised salons in Wal-Mart stores and supercenters.
HIGH QUALITY HAIRCARE PRODUCTS. Through Trade Secret and the Company's other
salons, Regis sells nationally-recognized haircare products such as
Matrix-Registered Trademark-, Paul Mitchell-Registered Trademark-,
Sebastian-Registered Trademark-, Redken-Registered Trademark-, and
Nexxus-Registered Trademark- and a complete line of products sold under the
Regis label, which is one of the Company's best selling product lines. The
salon branded products are typically sold only through professional salons and
generate slightly higher gross margins than haircutting and other salon
services. The Company's stylists are trained to sell haircare products as well
as services such
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as color treatments and manicures to their customers. Sales of haircare
products increased 16.7 percent in fiscal 1999 to $263.7 million and
represented 28.4 percent of company-owned revenues.
CONTROL OVER SALON OPERATIONS. Regis controls the quality of operations and
enjoys certain economies of scale in terms of certain corporate and store level
expenses. The Company has an extensive training program, including the
production of training videos for use in the salons, to ensure that hairstylists
are knowledgeable and provide consistent quality haircare services.
ECONOMIES OF SCALE. Management believes that due to its size and number of
locations the Company has certain advantages which are not available to single
location salons or small chains. The Company uses its point-of-sale system to
track inventory at the salons and to accumulate and monitor service and product
sales. This product and customer information is used to evaluate salon
productivity and, in some cases, to determine the most appropriate salon use for
the location. Additionally, as a result of its volume purchases, the Company is
able to purchase haircare products and supplies and salon fixtures on an
advantageous basis. The Company is also able to gain national and local market
recognition for the Regis name and its salon concepts through national and local
advertising and promotional programs.
DOMESTIC SALONS:
REGIS SALONS. Regis Salons are full-service salons providing complete haircare
and beauty services aimed at moderate to upscale, fashion-conscious consumers.
The customer mix at Regis Salons is approximately 70 percent women and 30
percent men. These salons offer a full range of custom hairstyling, cutting,
coloring, permanent wave and manicuring as well as haircare products. The
average sale at Regis Salons is approximately $23. Regis Salons compete in
their existing markets primarily by emphasizing the high quality of full
services provided. The Company actively monitors the prices charged by its
competitors in each area and makes every effort to maintain prices which,
although in the higher range of local prices, are not so high as to be
uncompetitive with prices of other salons offering similar, high-quality
services. At June 30, 1999, the Company operated 905 Regis Salons in shopping
malls in North America. Revenues from the Regis Salons were $356 million, or 37
percent of the Company's total revenues, in fiscal 1999. The Company expects to
construct about 50 new Regis Salons in fiscal 2000.
MASTERCUTS FAMILY HAIRCUTTERS. MasterCuts Family Haircutters salons serve a
broader customer base than Regis Salons and respond to competitive pressures for
lower cost haircare services. MasterCuts salons emphasize quality haircutting,
lower prices and time-saving services for the entire family. The customer mix
at MasterCuts salons contains a greater percentage of men and children than at
Regis Salons salons. MasterCuts salons cater to walk-in customers and provide a
warm, inviting atmosphere that is comfortable for all members of the family.
Many of the same product lines sold in Regis Salons are also available in
MasterCuts salons. The average sale at MasterCuts salons is approximately $12.
The MasterCuts salons place more emphasis on discount or promotional pricing for
the services being offered in order to compete more effectively with the chains
of salons, primarily franchises, now offering such services at discount prices.
In certain markets, the Company has been able to improve a salon's performance
by converting it to a MasterCuts salon. At June 30, 1999, the Company operated
460 MasterCuts salons in North
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America. Revenues from MasterCuts salons accounted for $123 million, or 13
percent of the Company's total revenues, in fiscal 1999. During fiscal 2000,
the Company plans to construct approximately 50 new MasterCuts salons.
TRADE SECRET. Trade Secret salons emphasize haircare and beauty product sales
in a retail setting while providing high-quality haircare services. Trade
Secret salons are designed to display and attract sales of haircare and beauty
products. Trade Secret salons offer the same products as the Regis Salons and
MasterCuts salons, but also have additional haircare items. The average sale at
Trade Secret salons is approximately $16. At June 30, 1999, the number of Trade
Secret salons totaled 459 in North America, including 27 franchised locations.
Revenues and franchise income from company-owned Trade Secret salons and
franchising activity during fiscal 1999 was $137 million and $2 million,
respectively, or 14 percent of the Company's total revenues. The Company
anticipates constructing approximately 45 new Trade Secret salons in fiscal
2000.
WAL-MART. The Company expanded into the mass merchant retail arena in May
1996 by acquiring 154 salons operating within Wal-Mart stores and
supercenters. Wal-Mart salons share many operating characteristics with
MasterCuts: pricing is promotional, services are focused on family hair
cutting, and product revenues contribute solidly to overall revenues. In
fiscal 1998, the Company introduced a new brand name, SmartStyle Family Hair
Salons, for its company-owned Wal-Mart salons and rapidly expanded this new
brand name into its Wal-Mart salons in fiscal 1999. As part of the merger
with The Barbers in May 1999, the Company acquired 199 (158 franchised)
salons operating as Cost Cutters in Wal-Mart stores and supercenters making
Regis the primary provider of salon services in Wal-Marts. The Company
operated 544 company-owned and franchised salons within Wal-Mart stores and
supercenters at June 30, 1999. Revenue from company-owned Wal-Mart salons
totaled $64 million, or 6 percent of the Company's total revenue. The
Company anticipates constructing about 120 new company-owned SmartStyle
salons and franchise 40 new Cost Cutters in Wal-Mart stores and supercenters
in fiscal 2000.
STRIP CENTER SALONS. The Company's Strip Center Salon division is comprised of
1,615 franchised and 667 company-owned salons operating under the following
concepts:
SUPERCUTS. The Supercuts concept provides consistent high quality
haircare services to its customers at convenient times and locations and at
a reasonable price. The services offered by Supercuts salons are limited
and standardized. The salons are designed for ease of operation and the
demand for basic haircare is believed to be recession resistant and
non-seasonal. This concept appeals to men, women and children, although
male customers account for over 75 percent of total haircuts. Consumer
research indicates that males get their hair cut slightly more often (8-9
times annually) than females (7-8 times annually) and their haircuts
generally take less time. The Supercuts concept targets a male audience.
At June 30, 1999, the Company operated 1,316 Supercuts in North America,
including 825 franchised locations. Revenues and franchise income from
company-owned Supercuts and franchising activity during fiscal 1999 was
$116 million and $24 million, respectively, or 14 percent of the Company's
total revenues. The Company plans to construct 65 new company-owned and 110
franchised Supercuts stores in fiscal 2000.
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COST CUTTERS FAMILY HAIR CARE/CITY LOOKS SALONS/WE CARE HAIR. This group
of franchised salons were added to the Company's salon base as a result of
the merger with The Barbers in fiscal 1999, as previously discussed. Cost
Cutters Salons provide value-priced hair care services for men, women and
children. In addition, Cost Cutters salons sell a complete line of
professional hair care products. City Looks Salons are more upscale,
full-service concepts located in regional centers and strip centers. We
Care Hair Salons offer full-service hair, nails, skin care and tanning in
strip centers at affordable prices. At June 30, 1999, the Company
franchised 783 salons generating franchise income during fiscal 1999 of $21
million, or 2 percent of the Company's total revenues. The Company plans
to add 40 franchise salons to the system in fiscal 2000.
COMPANY-OWNED STRIP CENTER SALONS. The Company-owned Strip Center Salons
is made up of successful salon groups acquired over the past two years.
These salons have typically been or will be converted to either the Hair
Masters or Style America brand names. Both concepts are full-service,
however Style America caters to time-pressed, value-orientated families,
while Hair Masters offers moderately-priced services to a predominately
female demographic. At June 30, 1999, the Company operated 183 salons with
fiscal 1999 revenues of $30 million. The Company anticipates adding 20 new
salons to this group in fiscal 2000.
INTERNATIONAL SALONS:
The Company operated 304 hair care salons in the United Kingdom at June 30,
1999. Canadian salons operate primarily under the Regis Salons, MasterCuts,
Supercuts and Trade Secret brand names and revenues are included within the
respective operating divisions. Salons in the U.K. operate in malls, leading
department stores, mass merchants, under license arrangements. During fiscal
1999, the International division divested its overseas salons outside the U.K.
in order to focus on the U.K., which offers the Company stronger growth
potential. Regis is the largest salon operator in the U.K. Revenues from the
International salon operations were $101 million, or 10 percent of the Company's
total revenues, in fiscal 1999. The Company expects to continue to modestly
increase its International salon base in fiscal 2000.
NEW SALON DEVELOPMENT
The table on the following pages sets forth the number of Company salons opened
at the beginning and end of each of the last five years, as well as the number
of salons opened, closed, relocated, converted and acquired during each of these
periods.
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SALON LOCATION SUMMARY
<TABLE>
<CAPTION>
1995 1996 1997 1998 1999
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<S> <C> <C> <C> <C> <C>
REGIS
Open at beginning of period 825 811 821 835 844
Salons constructed 17 31 28 33 41
Acquired 9 9 18 15 63
Less: Relocations 11 11 10 15 20
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Net salon openings 15 29 36 33
Conversions (10) (4) (4)
Salons closed or sold (19) (15) (18) (24) (23)
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Open at end of period 811 821 835 844 905
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STRIP CENTERS (PRIMARILY SUPERCUTS AND COST CUTTERS)
Company-Owned:
Open at beginning of period 332 470 516 423 500
Salons constructed 107 47 2 7 60
Acquired 16 1 47 143
Less: Relocations 3
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Net salon openings 123 48 6 54 200
Conversions (1) 21 9 (61) 38 (25)
Salon closed or sold (6) (13) (38) (15) (8)
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Open at end of period 470 516 423 500 667
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Franchised Salons:
Open at beginning of period 1,234 1,269 1,328 1,566 1,579
Salons added 64 93 91 96 106
Acquired 3 104 30
Less: Relocations 3 4
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Net salon openings 64 96 195 123 102
Conversions (1) (21) (9) 61 (38) (2)
Salon closed or sold (8) (28) (18) (72) (64)
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Open at end of period 1,269 1,328 1,566 1,579 1,615
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MASTERCUTS
Open at beginning of period 257 283 327 362 412
Salons constructed 21 33 36 50 47
Acquired 1 12 2 8 13
Less: Relocations 2 3 3 4 7
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Net salon openings 20 42 35 54
Conversions 10 3 3
Salon closed or sold (4) (1) (3) (4) (5)
----- ----- ----- ----- -----
Open at end of period 283 327 362 412 460
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----- ----- ----- ----- -----
</TABLE>
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<TABLE>
<CAPTION>
1995 1996 1997 1998 1999
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<S> <C> <C> <C> <C> <C>
TRADE SECRET
Company-Owned:
Open at beginning of period 106 152 219 302 340
Salons constructed 28 40 56 32 44
Acquired 19 11 11 14 64
Less: Relocations 1 4 4 4 9
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Net salon openings 46 47 63 42
Conversions (1) 2 20 24 2 (7)
Salon closed or sold (2) (4) (6)
----- ----- ----- ----- -----
Open at end of period 152 219 302 340 432
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----- ----- ----- ----- -----
Franchised Salons:
Open at beginning of period 64 68 55 38 34
Salons added 7 8 6
Acquired
Less: Relocations 1
----- ----- ----- ----- -----
Net salon openings 77 6
Conversions (1) (2) (19) (23) (2) (7)
Salon closed or sold (1) (1) (2)
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Open at end of period 68 55 38 34 27
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WAL-MART/SMARTSTYLE/COST CUTTERS
Company-owned:
Open at beginning of period 0 3 168 198 293
Salons constructed 3 10 30 48 96
Acquired 154 47 0
Less: Relocations salons closed or sold 3
----- ----- ----- ----- -----
Net salon openings 3 164 30 95 93
Open at end of period 3 168 198 293 386
----- ----- ----- ----- -----
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Franchised Salons:
Open at beginning of period 31 81 117 136
Salons added 31 50 36 19 22
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Net salon openings 31 81 117 136 158
----- ----- ----- ----- -----
Open at end of period 31 81 117 136 158
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----- ----- ----- ----- -----
INTERNATIONAL (2)
Open at beginning of period 251 244 408 423 292
Salons constructed 9 9 26 17 12
Acquired 2 178 3 1
Less: Relocations 1
----- ----- ----- ----- -----
Net salon openings 11 186 29 17
----- ----- ----- ----- -----
Salons closed or sold (18) (22) (14) (48) (101)
----- ----- ----- ----- -----
Open at end of period 244 408 423 392 304
----- ----- ----- ----- -----
----- ----- ----- ----- -----
Grand total, system-wide 3,331 3,923 4,264 4,530 4,954
----- ----- ----- ----- -----
----- ----- ----- ----- -----
Major remodeling & conversions 46 65 72 97 95
----- ----- ----- ----- -----
----- ----- ----- ----- -----
</TABLE>
(1) Represents primarily the acquisition of franchise locations.
(2) Canadian salons are included in the Regis, MasterCuts and Trade Secret
divisions and not included in the International salon totals.
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Of the 282 new company-owned salons constructed in fiscal 1999, 41 were Regis
Salons, 60 were Strip Center Salon (primarily Supercuts), 47 were MasterCuts,
44 were Trade Secret, 78 were SmartStyle and 12 were International salons.
In addition, 18 Cost Cutter Salon were constructed by The Barbers prior to
the merger in fiscal 1999. The Company intends to construct approximately
360 new company-owned salons during fiscal 2000. The Company has a program
of modernizing its existing salons, ranging from redecoration to substantial
reconstruction, in order to raise its older salons to the standards of its
newly constructed locations. This program is implemented as management
determines that a particular location will benefit from such modernization,
or as required by lease renewals.
HAIRCARE PRODUCTS
In recent years, the Company has placed emphasis on the sales of
higher-margin haircare products, with the result that such revenues have
become an increasingly important part of the Company's business, having grown
from 5.4 percent of total company-owned revenues in fiscal 1987 to 28.4
percent in fiscal 1999. A significant portion of this growth has resulted
from the introduction of national brand merchandise in 1988, the acquisition
of Beauty Express in November 1992 and Trade Secret in December 1993. The
haircare products offered are primarily shampoos, hair conditioners,
fixatives and hair sprays. Regis, MasterCuts, Cost Cutters, and Trade Secret
private label products, as well as lines of salon branded products are sold
only through licensed beauty salons, including Matrix-Registered Trademark-,
Paul Mitchell-Registered Trademark-, Redken-Registered Trademark-,
Sebastian-Registered Trademark-, and Nexxus-Registered Trademark-. The Regis
line continues to be one of the Company's best selling product lines. The
Company actively reviews its product line offerings and continuously
investigates the quality and sales potential of new products. The Company
utilizes its national salon network as a testing ground for new product
formulations. There are many potential sources of supply for the types of
products used or sold at the salons, and the Company is not dependent upon
any single supplier.
SITE SELECTION
The Company is the largest shopping mall tenant which operates haircare
salons in the United States and has attained national tenant status which
makes the Company an attractive tenant for shopping mall owners and
developers. In the United States, there are approximately 1,800 enclosed
malls which meet the Company's performance criteria with several new shopping
malls developed each year. At June 30, 1999, the Company's 1,824 United
States and Canadian mall-based salons were located in 1,164 shopping malls.
Because the Company's different salon concepts target different customer
groups depending on the size and location of the shopping malls, more than
one of the Company's salon concepts may be located in the same mall. As a
result, there are numerous leasing opportunities in shopping malls for its
Regis, MasterCuts and Trade Secret salons, of which the Company has
penetrated less than 50 percent.
The Company generally locates its Regis, MasterCuts and Trade Secret salons
in fully enclosed, climate-controlled shopping malls classified as "regional"
having 400,000 or more square feet of leasable area and at least two
full-line department store anchor tenants. The Company's experience has been
that selecting the proper mall and obtaining a favorable, high-traffic
location within the mall are important determinants of the success of a new
salon. For existing malls, the Company
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evaluates the current sales per square foot of selected tenants, the stature
and strength of the anchor stores and the other major tenants, the location
and traffic patterns within the mall, and the proximity of competitors. In
addition, the Company may conduct site surveys and physical observations to
assess the location, traffic patterns and competitive environment.
Several trends have enabled the Company to continue to lease high-profile
space in existing malls. Leasing velocity and turnover have increased because
the average length of shopping mall lease terms has steadily descended.
Also, many larger tenants are downsizing their leased areas to make better
use of costly space, thereby creating available floor space which can be
leased for other uses. Additionally, many existing malls are being expanded,
renovated and remerchandised. Because of these factors, the Company believes
that it has ample expansion opportunities and therefore can be selective in
establishing new locations.
In evaluating specific locations for Supercuts and Cost Cutter company-owned
and franchise stores, the Company seeks conveniently located, highly visible
strip shopping centers which allows customers adequate parking and quick and
easy store access. The Company believes strip shopping centers anchored by
the number one or two grocery chains in the specific market, or a major mass
merchant, provide a profitable customer flow. Strip center customers are
destination shoppers and, as a result, Supercuts and Cost Cutters is not
dependent upon expensive regional shopping mall locations. Various other
factors are considered in evaluating sites, including trade area
demographics, availability and cost of space, location of competitors,
traffic count, visibility, signage and other leasehold factors in a given
center or area. All franchisee sites must be approved by the Company.
SUPERCUTS FRANCHISING PROGRAM
GENERAL
The Company provides its Supercuts franchisees with a comprehensive system of
business training, stylist education, site approval and lease negotiation,
professional marketing, promotion and advertising programs, and other forms
of support designed to help the franchisee build a successful business. The
Company employs field staff personnel to assist franchisees in all aspects of
operations, training and supervision.
STANDARDS OF OPERATIONS
All Supercuts franchisees are required to conform to Company-established
operational policies and procedures relating to quality of service, training,
design and decor of stores, and trademark usage. The Company's field
personnel make periodic visits to franchised stores to ensure that the stores
are operating in conformity with Supercuts standards. In addition, to
further ensure such conformity, the Company enters into the lease for the
store site directly with the landlord, and subsequently subleases the site to
the franchisee. The sublease provides the Company with the right to
terminate the sublease and gain possession of the store if the franchisee
fails to comply with the Company's operational policies and procedures. See
Note 5 of "Notes to the Consolidated Financial Statements" for further
information.
12
<PAGE>
FRANCHISE TERMS
Supercuts franchisees pay monthly royalty fees based on service and product
revenues. In addition, franchisees pay an advertising fee of five percent of
service revenues, which is held in a separate account and administered by the
Company. In calendar 1998, franchisees contributed approximately $11.0
million to the advertising fund. All royalties and advertising fees are due
monthly.
The franchisees pay an initial franchise fee for each new franchise location.
Franchisees are responsible for the costs of leasehold improvement,
furniture, fixtures, equipment, supplies, inventory and certain other items,
including initial working capital. New franchisees also must pay an initial
fee for franchisee training.
The majority of existing franchise agreements have a perpetual term; subject
to termination of the underlying lease agreement or termination of the
franchise agreement by either the Company or the franchisee. The agreements
also provide the Company a right of first refusal if the store is to be sold.
The franchisee must obtain the Company's approval in all instances where
there is a sale of the franchise. The current franchisee agreement is site
specific and does not provide any territorial protection to a franchisee,
although some older franchise agreements do include limited territorial
protection. The Company has a comprehensive impact policy that resolves
potential conflicts among franchisees and/or the Company regarding proposed
salon site.
FRANCHISE SALES
Franchise expansion will continue to be a significant focus of the Company in
the future. Existing franchisees and new franchisees who open more than one
salon receive a reduction in initial franchise fees.
FRANCHISEE TRAINING
The Company provides new Supercuts franchisees with training, focusing on the
various aspects of store management, including operations, personnel
management, marketing fundamentals and financial controls. Existing
franchisees receive training, counseling and information from the Company on
a continuous basis. The mechanisms used for providing training include mail,
"800" number information lines and e-mail. In addition, the company provides
store manager and stylists with extensive training. For further description
of the Company's education and training programs, see the "Salon Training
Programs" section of this document.
COST CUTTER FRANCHISING PROGRAM
GENERAL
The Company provides, pursuant to each franchise agreement, initial and
ongoing operational training, advertising and marketing services, and
financial analysis services to all of its franchises. In addition, the
Company provides construction plans and sells all salon equipment necessary
to
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<PAGE>
equip a franchise store with retail consumer goods, such as beauty and hair
care products and appliances.
STANDARDS OF OPERATIONS
All Cost Cutters franchisees are required to conform to Company-established
operation policies and procedures relating to quality of service, training,
design and decor of stores, and trademark usage. The company's field
personnel make periodic visits to franchised stores to ensure that the stores
are operating in conformity with Cost Cutters standards.
FRANCHISE TERMS
Pursuant to their franchise agreement with the Company, each franchisee pays
an initial fee and ongoing royalty and advertising fees to the Company.
These fees vary depending upon the particular franchisee and the age of the
franchise location.
The franchisees pay an initial franchise fee for each new franchise location.
Franchisees are responsible for the costs of leasehold improvements,
furniture, fixtures, equipment, supplies, inventory and certain other items,
including initial working capital.
Cost Cutters franchisees pay monthly royalty fees based on service and
product revenues. In addition, franchisees pay an advertising fee of up to
six percent of gross revenues. All royalties and advertising fees are due
weekly from the franchises.
The majority of existing franchise agreements have a 15 year term with a 15
year option to reacquire. The agreements also provide the Company a right of
first refusal if the store is to be sold. The franchisee must obtain the
Company's approval in all instances where there is a sale of the franchise.
The current franchise agreement is site specific. Franchisees may enter into
development agreements with the Company which provides limited territorial
protection.
FRANCHISE SALES
Franchise expansion will continue to be encouraged through both existing and
new franchisees. Existing franchisees and new franchisees who open more than
one salon receive a reduction in initial franchise fees.
FRANCHISE TRAINING
The Company provides new Cost Cutters franchisees with training, focusing on
the various aspects of store management, including operations, personnel
management, stylists training, marketing fundamentals and financial controls.
Existing franchisees receive training, counseling and information from the
Company on a continuous basis. The mechanisms used for providing training
include mail and annual conventions.
14
<PAGE>
MARKETS AND MARKETING
Approximately half of the Company's North American salons are situated in
"middle markets" with service area populations between 80,000 and 800,000.
Approximately one-fourth of the Company's salons are located in smaller
markets with a service area population below 80,000, and about one-fourth are
located in major metropolitan areas with populations in excess of 800,000.
The Company believes that the geographic dispersion of its salons throughout
the United States may diminish the impact of fluctuations in regional
business cycles.
The Company maintains various advertising, sales and promotion programs for
its salons, budgeting a predetermined percent of revenues for such programs.
The Company has developed promotional tactics and institutional sales
messages for each of its divisions targeting certain customer types and
positioning each concept in the marketplace. Print, radio and television and
billboard advertising are developed and supervised at the Company's
headquarters, but most advertising is done in the immediate area of the
particular salon.
Supercuts maintains an Advertising Fund (the "Fund") that provides
comprehensive advertising and sales promotion support for the Supercuts
system. All Supercuts stores, company-owned and franchised, contribute five
percent of service revenues to the Fund, 80 percent of which is allocated to
the contributing market for media placement and local marketing activities
and 20 percent of which is allocated for national advertising campaigns and
system-wide activities. Each new franchised salon opened by a new franchisee
or by an existing franchisee in a new market, contributes $5,000 for grand
opening expenses. Additionally, stores may contribute supplemental funds to
pay for advertising costs above their total market contributions. The
Company's marketing department administers (at no additional cost to the
franchisees or the Fund) the development of system-wide advertising and
promotion, working with McCann-Erickson San Francisco, as agency of record.
This intensive advertising program creates significant consumer awareness, a
strong brand image and high loyalty. In calendar 1998, $16.2 million was
paid into the Fund, by both franchised and company-owned Supercuts stores.
Supercuts conducts regular, system-wide promotional programs for markets and
an initial grand opening program for new stores. Each includes broadcast,
print, direct mail and public relations campaigns.
Cost Cutters also maintains an advertising fund that supports advertising and
sales promotion for the Cost Cutter's system. Pursuant to the franchise
agreement, each franchisee, depending upon the particular franchise and the
age of the franchise agreement, pays up to six percent of their gross sales
into an advertising fund managed by the Company. The Company uses a portion
of the fund to provide market research, production materials, ad slicks,
brochures, radio and television commercials to all franchisees. The balance
of the fund is used for advertising and promotion development for
franchisees. In addition, each franchisee is also required to spend one
percent of its gross sales on local advertising.
In many of the Company's stylists volunteer their time to support charitable
events for breast cancer research. Proceeds collected from such events are
distributed through the Regis Foundation for Breast Cancer Research. In a
unique three-year agreement, the Company will support three postdoctoral
fellows known as Regis Scholars, to conduct research in the field of breast
cancer at the
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<PAGE>
Mayo Foundation, Rochester, MN. The goal of the Regis Scholars program is to
further the prevention, diagnosis and treatment of breast cancer, and to
recruit and train future leaders in the biology of the disease. The
Company's community involvement also includes a major sponsorship role for
the Susan G. Komen Breast Cancer Foundation Twin Cities Race for the Cure.
This 5K run and one-mile walk is held in Minneapolis on Mother's Day to help
fund breast cancer research, education, screening and treatment. The Company
has reached nearly $2.5 million in fundraising for breast cancer charities.
SALON TRAINING PROGRAMS
The Company has an extensive hands-on training program for its salon managers
and hairstylist associates which emphasizes both technical training in
hairstyling and cutting, perming, hair coloring and hair treatment regimes as
well as customer service and product sales. The objective of the training
programs is to ensure that customers receive professional and quality service
which the Company believes will result in more repeat customers, referrals
and product sales.
The Company has full- and part-time artistic directors who teach and train
the salon operators in techniques for providing the salon services and who
instruct the stylists in current styling trends. The Company also has an
audiovisual based training system in its salons designed to enhance technical
skills of hairstylists.
The Company has a customer service training program to improve the
interaction between employees and customers. Staff members are trained in
the proper techniques of customer greeting, telephone courtesy and
professional behavior through a series of professionally designed video tapes
and instructional seminars.
Supercuts provides extensive initial and ongoing training to stylists through
its system of field educators. Every stylist must attend a training course
at one of the Supercuts designated training centers at which they are taught
the Supercuts, haircutting technique and customer service principles.
Stylists may be recertified every six to nine months. For annual
re-certification each stylist must participate in a combination of store
seminars and studio visits.
STAFF RECRUITING AND RETENTION
Recruiting quality managers and hairstylists is essential to the
establishment and operation of successful salons. The Company's supervisory
team seeks to recruit entrepreneurial salon managers who display initiative
and imagination. The Company has been successful in recruiting capable
managers and stylists for a number of reasons. To employ and retain
qualified and productive employees, the Company utilizes a broad compensation
system including cash incentives, merchandise awards, Company-sponsored trips
and benefit programs. The Company believes that its compensation structure
for salon managers and hairstylists is competitive within the industry.
Stylists benefit from the Company's high-traffic locations in quality malls,
as well as name-recognition from Supercuts and Wal-Mart, and receive a steady
source of new business from walk-in customers. In addition, the Company
offers a career path with the opportunity to move into managerial and
training positions within the Company.
SALON DESIGN
16
<PAGE>
The Company's salons are designed, built and operated in accordance with
uniform standards and practices developed by the Company based on its
experience. New salons are designed and constructed according to the
Company's standard specifications, thereby reducing design and construction
costs and enhancing operating efficiencies. Salon fixtures and equipment are
also uniform, allowing the Company to place large orders for these items with
attendant cost savings.
The size of the Company's salons ranges from 500 to 5000 square feet, with
the typical salon having about 1,200 square feet. At present, the cost to
the Company of constructing and furnishing a new salon, including
inventories, ranges from approximately $45,000 for a new Wal-Mart location to
$190,000 for a new Trade Secret location, which has higher inventory levels.
Of the total construction costs, approximately 70 percent of the cost is for
leasehold improvements and the balance is for salon fixtures, equipment, and
inventory.
The Company maintains its own construction and design department, and designs
and supervises the construction, furnishing and fixturing of all new
company-owned salons. The Company has developed considerable expertise in
designing upscale, visually appealing salons. The design and construction
staff focuses on aesthetic appeal, efficient use of space, cost and rapid
completion times. The Company's salons are airy in appearance and have
limited partitions. Haircare products offered for sale are prominently and
attractively displayed in the salons. Each of the Company's salon concepts
has a different design related to the image to be projected. Regis Salons
are more upscale in design and utilize wood and marble floors, mirrors and
contrasting black and creme colors. Supercuts salons are functional in design
and tastefully furnished, consistent with its image of a quality provider of
affordable haircutting services. Cost Cutter salons are universally designed
to appeal to a broad range of customers, providing value-priced full services
in convenient locations. MasterCuts salons are family oriented and include
extensive use of woodwork and warm, comfortable colors. Trade Secret salons
use many of the same design techniques as Regis Salons, and also have open
and easily accessible product displays. SmartStyle salons, which are
strategically located near the check out counters in the front of Wal-Mart
stores and supercenters, are efficiently designed and brightly colored to
complement the Wal-Mart retail environment.
OPERATIONS
Company-owned and franchised salons located in the United States, Puerto
Rico, and Canada, are operated and managed as part of the Company's North
American operations. All other salons, located in department stores and high
street locations in the United Kingdom are operated and managed through the
Company's International branch located in England.
For each salon concept, the Company's operations are divided into geographic
regions throughout the United States. Each region is headed by one of the
Company's salon directors, assisted by regional field managers and area
supervisors, who coordinate the operations of the salons in the particular
region. The area supervisors are responsible for hiring and training the
managers for each salon.
Over the years, the Company has developed uniform procedures for opening new
salons in such a manner as to maximize revenues from a new location as
rapidly as possible. After opening, all salons are operated according to
standard procedures which the Company has learned are desirable for the
operation of an efficient, high-quality, profitable salon.
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<PAGE>
MANAGEMENT INFORMATION SYSTEMS
The Company utilizes a retail point-of-sale information system in all its
salons. This system collects data daily from each salon and consolidates the
data into several management reports. The Company's automated system polls
terminals nightly and all salon cash receipts are transferred automatically
into a centralized bank account, thereby significantly reducing
administrative expenses. Point-of-sale information is also used both to
monitor salon performance and to generate customer data for use in
identifying and anticipating industry trends for purposes of pricing and
marketing. The Company has expanded the system to deliver on-line
information as to sales of products to improve its inventory and control
system, including suggested monthly product purchase recommendations for a
salon, a monthly report of sales and a perpetual inventory. Management
believes that its information systems provide advantages in planning and
analysis which are not available to a majority of its competitors which do
not have management information systems.
COMPETITION
The haircare industry is highly competitive. In every area in which the
Company has a salon, there are competitors offering similar haircare services
and products at similar prices. The Company faces competition within malls
from companies which operate salons as departments within department stores
and from smaller chains of salons, independently owned salons and, to a
lesser extent, salons which, although independently owned, are operating
under franchises from a franchising company that may assist such salons in
areas of training, marketing and advertising.
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<PAGE>
Significant entry barriers exist for new chains due to the need to establish
brand identification, systems and infrastructure, recruitment of experienced
haircare management and adequate store staff, and leasing of quality sites.
The principal factors of competition in the affordable haircare category are
quality, consistency and convenience. The Company continually strives to
improve its performance in each of these areas and to create additional
points of difference versus the competition.
In order to obtain locations in shopping malls, the Company must be
competitive as to rentals and other customary tenant obligations. The
Company believes that because of its established relationships with many
leading shopping center developers throughout the country, its status in the
haircare industry as a national rather than a local tenant, and its financial
resources, it will encounter little difficulty in obtaining sufficient
shopping center locations to continue its historical pattern of growth.
TRADEMARKS
The Company holds numerous trademarks, both in the United States and in
several foreign countries. The most important are the trademarks "Regis
Salons," "Supercuts," "MasterCuts" "Trade Secret" and "Cost Cutters."
The Company believes the use of these trademarks is important in establishing
and maintaining its reputation as a national operator of high-quality
hairstyling salons, and is committed to protecting these trademarks by
vigorously challenging any unauthorized use.
EMPLOYEES
As of June 30, 1999, the Company had more than 31,000 full- and part-time
employees worldwide, of which approximately 27,000 employees were located in
the United States. None of the Company's employees is subject to a
collective bargaining agreement and the Company believes that its employee
relations are good.
GOVERNMENTAL REGULATIONS
The Company is subject to various federal, state and local laws affecting its
business as well as a variety of regulatory provisions relating to the
conduct of its cosmetology business, including health and safety. As a
franchisor, the Company's franchise operations are subject to the Federal
Trade Commission's Trade Regulation Rule on Franchising (the "FTC Rule") and
by state laws and administrative regulations that regulate various aspects of
franchise operations and sales. The Company's franchises are offered to
franchisees by means of an offering circular containing specified disclosures
in accordance with the FTC Rule and the laws and regulations of certain
states. The Company has registered its offering of franchises with the
regulatory authorities of those states in which it offers franchises and in
which such registration is required. State laws that regulate the
franchisor-franchisee relationship presently exist in a substantial number of
states and, in certain cases, apply substantive standards to this
relationship. Such laws may, for example, require that the franchisor deal
with the franchisee in good faith, may prohibit interference with the right
of free association among franchisees, and may limit termination of
franchisees without payment of reasonable compensation. The Company believes
that the current trend is for government regulation
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<PAGE>
of franchising to increase over time. However, such laws have not had, and
the Company does not expect such laws to have, a significant effect on the
Company's operations.
The Company believes it is operating in substantial compliance with
applicable laws and regulations governing operations.
20
<PAGE>
ITEM 1A. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
Information regarding the Directors of the Company and Exchange Act Section
16(a) filings is included on pages 3 and 4 of the Registrant's Proxy
Statement dated September 17, 1998, and is incorporated herein by reference.
Information relating to Executive Officers of the Company follows:
<TABLE>
<CAPTION>
Name Age Position
- ------------------- --- -------------------------------------------------
<S> <C> <C>
Myron Kunin 70 Chairman of the Board of Directors
Paul D. Finkelstein 57 President, Chief Executive Officer and Director
Christopher A. Fox 49 Executive Vice President Real Estate and Director
Randy L. Pearce 44 Executive Vice President, Chief Administrative
Officer and Chief Financial Officer
Mary Andert 44 Executive Vice President, Merchandising and
Marketing
Bruce Johnson 46 Senior Vice President, Design and Construction
Mark Kartarik 43 Senior Vice President, President and Chief
Operating Officer, Supercuts Inc.
Gordon Nelson 48 Senior Vice President, Fashion and Education
Bert M. Gross 69 Senior Vice President, General Counsel and
Secretary
Raymond Duke 48 Senior Vice President, International Managing
Director, Europe
Sharon Kiker 54 Chief Operating Officer, Regis Salons
Kris Bergly 38 Chief Operating Officer, StyleAmerica and Hair
Masters
Robert Ribnick 38 Chief Operating Officer, MasterCuts
Norma Knudsen 41 Chief Operating Officer, Trade Secret
C. John Briggs 55 Chief Operating Officer, SmartStyle Family Hair
Salons
</TABLE>
Myron Kunin has served as Chairman of the Board of Directors of the Company
since 1983, as Chief Executive Officer of the Company from 1965 until July 1,
1996, as President of the Company from 1965 to 1987 and as a director of the
Company since its formation in 1954. He is also Chairman of the Board and
holder of the majority voting power of Curtis Squire, Inc., the Company's
largest shareholder. He is also a director of Nortech Systems Incorporated.
21
<PAGE>
Paul D. Finkelstein has served as President, Chief Operating Officer and as a
director of the Company since December 1987, as Executive Vice President of
the Company from June 1987 to December 1987 and has served as Chief Executive
Officer since July 1, 1996.
Christopher A. Fox was elected Executive Vice President Real Estate in 1994,
was Senior Vice President, Real Estate of the Company from 1988 to 1994, has
served as Vice President from 1984 to 1988 and has served as a director of
the Company since 1989.
Randy L. Pearce was elected Executive Vice President and Chief Administrative
Officer in 1999, has served as Chief Financial Officer since 1998, was Senior
Vice President, Finance from1998 to 1999, has served as Vice President of
Finance from 1995 to 1997 and as Vice President of Financial Reporting from
1991 to 1994.
Mary Andert was elected Executive Vice President, Marketing and Merchandising
in February 1999, served as Senior Vice President, Marketing since 1998, and
as Vice President, Marketing since 1997.
Bruce Johnson was elected a Senior Vice President of Design and Construction
in 1997 and has served as Vice President from 1988 to 1997.
Mark Kartarik has served as Senior Vice President, of the Company since 1994
and as Vice President from 1989 to 1994. He was elected President of
Supercuts, Inc. in 1998 and has served as Chief Operating Officer of
Supercuts, Inc. since 1997.
Gordon Nelson has served as Senior Vice President, Fashion and Education of
the Company since 1994 and as Vice President from 1989 to 1994.
Bert M. Gross was elected Senior Vice President, General Counsel in 1997 and
acted as outside legal counsel to the Company from 1957 to 1997.
Raymond Duke was elected Senior Vice President, International Managing
Director, Europe in February, 1999 and has served as Vice President since
1992.
Sharon Kiker was elected Chief Operating Officer, Regis Salons in April 1998
and has served as Vice President, Salon Operations from 1989 to 1998.
Kris Bergly was elected Chief Operating Officer, StyleAmerica in March 1999
and has served as Chief Operating Officer, SmartStyle Family Hair Salons
since April 1998 and as Vice President, Salon Operations from 1993 to 1998.
Robert Ribnick was elected Chief Operating Officer, Mastercuts in April 1998
and has served as Vice President, Salon Operations from 1993 to 1998.
Norma Knudsen was elected Chief Operating Officer, Trade Secret in February
1999 and has served as Vice President, Trade Secret Operations since 1995.
C. John Briggs was elected Chief Operating Officer, SmartStyle Family Hair
Salons in March 1999, and has served as Vice President, Regis Operations
since 1988.
22
<PAGE>
ITEM 2. PROPERTIES
The Company's corporate executive and administrative offices are
headquartered in a 100,000 square foot building in Edina, Minnesota owned by
the Company. In December 1997, the Company acquired two buildings, totaling
70,000 square feet of office space, located adjacent to the Company's current
headquarters in Edina. This office space is currently leased to several
tenants. As leases terminate and additional office space is required, the
Company plans to remove or relocate existing tenants to provide additional
administrative office space for its own purposes.
The Company also leases warehouse space in Eden Prairie, Minnesota for
storing and distributing inventory and two supplement facilities which
support the primary Eden Prairie facility. The Company completed
construction of a new distribution center in Chattanooga, Tennessee during
fiscal 1998. The Company anticipates that in addition to these two primary
facilities additional warehouse space will be needed by mid-2001.
The Company operates all of its salon locations under leases or licenses.
All of its North American locations opened in regional malls during the past
five years are operating under leases with an original term of at least ten
years. Salons operating within strip centers and Wal-Mart stores and
supercenters have leases with original terms of at least five years. Salons
in the U.K. operations which are located in department stores operate under
license agreements with the host department stores.
The Company also leases the premises in which certain of its franchisees
operate and has entered into corresponding sublease arrangements with the
franchisees. These leases, generally with terms of approximately five years,
are expected to be renewed on expiration. Future minimum lease payments for
the next five years, which are reimbursable from the franchisees, are
approximately $22.6 million annually. All additional lease costs are passed
through to the franchisees. Remaining franchisees, who do not enter into
sub-lease arrangements with the Company, negotiate and enter into leases on
their own behalf.
None of the Company's salon leases is individually material to the operations
of the Company, and the Company expects that it will be able to renew its
leases on satisfactory terms as they expire. See Note 5 of "Notes to the
Consolidated Financial Statements".
ITEM 3. LEGAL PROCEEDINGS
None.
23
<PAGE>
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
On October 13, 1998, at the annual meeting of the shareholders of the
Company, the elections of the Company's directors took place with the
following results:
Election of Directors:
<TABLE>
<CAPTION>
FOR WITHHOLD AUTHORITY
<S> <C> <C>
Rolf Bjelland 20,791,168 162,527
Paul D. Finkelstein 20,769,516 184,179
Christopher A. Fox 20,769,611 184,084
Thomas L. Gregory 20,767,225 186,470
Van Zandt Hawn 20,791,171 162,524
Susan S. Hoyt 20,791,183 162,512
David B. Kunin 20,766,647 187,047
Myron Kunin 20,767,933 185,762
</TABLE>
PART II
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON EQUITY AND RELATED
STOCKHOLDER MATTERS
Data relating to Market Stock Data Information and dividends as set
forth in the sections included on pages 34 to 35 of the Registrant's
1999 Annual Report to Shareholders, a copy of which is included as
Exhibit 13 hereto, are incorporated herein by reference.
As of June 30, 1999, Regis shares were owned by approximately 13,200
shareholders based on the number of record holders and an estimate of
individual participants in security position listings.
ITEM 6. SELECTED FINANCIAL DATA
Five-Year Summary of Selected Financial Data which is included on page
12 of the Registrant's 1999 Annual Report to Shareholders, a copy of
which is included as Exhibit 13 hereto, is incorporated herein by
reference.
24
<PAGE>
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
Management's Discussion and Analysis of Results of Operations and
Financial Condition of the Company on pages 13 to 19 of the
Registrant's 1999 Annual Report to Shareholders, a copy of which is
included as Exhibit 13 hereto, is incorporated herein by reference.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The Report of Independent Accountants on page 34, the Consolidated
Financial Statements on pages 20 to 33 and the Quarterly Financial
Data on page 34 of the Registrant's 1999 Annual Report to
Shareholders, a copy of which is included as Exhibit 13 hereto, are
incorporated herein by reference.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON
ACCOUNTING AND FINANCIAL DISCLOSURE
None.
25
<PAGE>
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
See Part I for information regarding Directors and Executive Officers
of the Registrant.
ITEM 11. EXECUTIVE COMPENSATION
Executive compensation included on pages 6 through 7 of the
Registrant's Proxy Statement dated September 15, 1999 is incorporated
herein by reference.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
Security Ownership of Certain Beneficial Owners and Management on page
13 of the Registrant's Proxy Statement dated September 15, 1999 is
incorporated herein by reference.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Information regarding certain relationships and related
transactions is included on page 12 of the Registrant's Proxy
Statement dated September 15, 1999 and is incorporated herein by
reference.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
(a) (1). The following Consolidated Financial Statements of Regis
Corporation, and the Report of Independent Accountants thereon,
included on pages 20 to 34 of the Registrant's 1999 Annual Report
to Shareholders, are incorporated by reference in Item 8:
Report of Independent Accountants
Consolidated Balance Sheet as of June 30, 1999 and 1998
Consolidated Statement of Operations for each of the
three years in the period ended June 30, 1999
Consolidated Statements of Changes in Shareholders' Equity
and Comprehensive Income for each of the three years in
the period ended June 30, 1999
Consolidated Statement of Cash Flows for each of the
three years in the period ended June 30, 1999
Notes to Consolidated Financial Statements
(2). The financial statement schedule required to be filed by Item 8
of this Form is as follows:
Report of Independent Accountants on Financial Statement
Schedules
Schedule II -- Valuation and Qualifying Accounts
as of June 30, 1999, 1998 and 1997
26
<PAGE>
All other schedules are inapplicable to the Registrant, or
equivalent information has been included in the
consolidated financial statements or the notes thereto,
and have therefore been excluded.
(3). Listing of Exhibits:
EXHIBIT NUMBER
3(a) Election of the registrant to become governed by Minnesota Statutes
Chapter 302A and Restated Articles of Incorporation of the registrant,
dated March 11, 1983; Articles of Amendment to Restated Articles of
Incorporation, dated October 29, 1984; Articles of Amendment to
Restated Articles of Incorporation, dated August 14, 1987; Articles of
Amendment to Restated Articles of Incorporation, dated October 21,
1987. (Filed as Exhibit 3(a) to the Registrant's Registration
Statement on Form S-1 (Reg. No. 40142) and incorporated herein by
reference.)
3(b) By-Laws of the registrant. (Filed as Exhibit 3(c) to the Registrant's
Registration Statement on Form S-1 (Reg. No. 40142) and incorporated
herein by reference.)
4(a) Three-for-two stock split. (Incorporated by reference to Exhibit A of
the Company's report on Form 8-K dated May 2, 1996.)
4(b) Shareholder Rights Agreement dated December 23, 1996 (Incorporated by
reference to Exhibit 4 of the Company's report on Form 8-A12G dated
February 4, 1997)
4(c) Three-for-two stock split. (Incorporated by reference to Item 2 of
the Company's report on Form dated May 3, 1999 for the quarter ended
March 31, 1999.)
10(a) Employment and Deferred Compensation Agreement, Dated as of April 14,
1998, between the Company and Paul D. Finkelstein. (Incorporated by
reference to the Company's report on Form 10-K dated September 17,
1998, for the year ended June 30, 1998).
10(b) Form of Employment and Deferred Compensation Agreement between the
Company and six executive officers. (Incorporated by reference to
Exhibit 10(b) of the Company's report on Form 10-K date September 24,
1997.)
10(c) Northwestern Mutual Life Insurance Company Policy Number 10327324,
dated June 1, 1987, face amount $500,000 owned by the registrant,
insuring the life of Paul D. Finkelstein and providing for division of
death proceeds between the registrant and the insured's designated
beneficiary (split-dollar plan). (Filed as Exhibit 10(g) to the
Registrant's Registration Statement on Form S-1 (Reg. No. 40142) and
incorporated herein by reference.)
27
<PAGE>
10(d) Schedule of omitted split-dollar insurance policies. (Filed as
Exhibit 10(h) to the Registrant's Registration Statement on Form S-1
(Reg. No. 40142) and incorporated herein by reference.)
10(e) Employee Stock Ownership Plan and Trust Agreement dated as of May 15,
1992 between the registrant and Myron Kunin and Paul D. Finkelstein,
Trustees (Incorporated by reference to Exhibit 10(q) as part of the
Company's Report on Form 10-K dated September 27, 1993, for the year
ended June 30, 1993).
10(f) Executive Stock Award Plan and Trust Agreement dated as of July 1,
1992 between the registrant and Myron Kunin, Trustee (Incorporated by
reference to Exhibit 10(r) as part of the Company's Report on Form
10-K dated September 27, 1993, for the year ended June 30, 1993).
10(g) Employee Profit Sharing Plan and Trust agreement, amended June 22,
1994 between the registrant and Myron Kunin, Trustee. (Incorporated
by reference to Exhibit 10(t) part of the Company's report on Form
10-K dated September 28, 1994, for the year ended June 30, 1994.)
10(h) Survivor benefit agreement dated June 27, 1994 between the Company and
Myron Kunin. (Incorporated by reference to Exhibit 10(t) part of the
Company's report on Form 10-K dated September 28, 1994, for the year
ended June 30, 1994.)
10(i) Private Shelf Agreement dated as of July 25, 1995 between the
registrant and the Prudential Insurance Company of America.
(Incorporated by reference to Exhibit 10(m) of the Company's report on
Form 10-K dated September 24, 1997, for the year ended June 30, 1997.)
10(j) Series A Senior Note drawn from Private Shelf Agreement dated as of
February 21, 1996, between the registrant and the Prudential Insurance
Company of America. (Incorporated by reference to Exhibit 10(s) of
the Company's report on Form 10-Q dated May 3, 1996, for the quarter
ended March 31, 1996.)
10(k) Series B Senior Note drawn from Private Shelf Agreement dated as of
June 10, 1996, between the registrant and the Prudential Insurance
Company of America. (Incorporated by reference to Exhibit 10(v) of the
Company's report on Form 10-K dated September 16, 1996, for the year
ended June 30, 1996.)
28
<PAGE>
10(l) Agreement and plan of merger between the Company and Supercuts, Inc.
(Incorporated by reference to Exhibit 2.1 to July 15, 1996, Form 8-K.)
10(m) Series C Senior Note drawn from Private Shelf Agreement dated as of
October 28, 1996, between the registrant and the Prudential Insurance
Company of America. (Incorporated by reference to Exhibit 10(x) of
the Company's report on Form 10-K dated November 5, 1996, for the
quarter ended September 30, 1996.)
10(n) Term Note A Agreement between the registrant and LaSalle National Bank
dated October 28, 1996. (Incorporated by reference to Exhibit 10(y)
of the Company's report on Form 10-Q dated November 5, 1996, for the
quarter ended September 30, 1996)
10(o) Series D Senior Note drawn from Private Shelf Agreement dated as of
December 13, 1996, between the registrant and the Prudential Insurance
Company of America. (Incorporated by reference to Exhibit 10(w) of the
Company's report on Form 10-K dated September 24, 1997, for the year
ended June 30, 1997.)
10(p) Series E Senior Note drawn from Private Shelf Agreement dated as of
April 7, 1997, between the registrant and the Prudential Insurance
Company of America. (Incorporated by reference to Exhibit 10(y) of the
Company's report on Form 10-K dated September 24, 1997, for the year
ended June 30, 1997.)
10(q) Compensation and non-competition agreement dated May 7, 1997, between
the Company and Myron Kunin. (Incorporated by reference to Exhibit
10(z) of the Company's report on Form 10-K dated September 24, 1997,
for the year ended June 30, 1997.)
10(r) Modification of Private Shelf Agreement in 10(m) dated July 11, 1997.
(Incorporated by reference to Exhibit 10(bb) of the Company's report
on Form 10-K dated September 24, 1997, for the year ended June 30,
1997.)
10(s) Series F Senior Note drawn from Private Shelf Agreement dated as of
July 28, 1997, between the registrant and the Prudential Insurance
Company of America. (Incorporated by reference to Exhibit 10(cc) of
the Company's report on Form 10-K dated September 24, 1997, for the
year ended June 30, 1997.)
10(t) Modifications of Private Shelf Agreement in 10(bb) dated October 1,
1997. (Incorporated by reference to Exhibit 10(ff) of the Company's
report on Form 10-Q dated February 9, 1998, for the quarter ended
December 31, 1997.)
10(u) Revolving Credit Agreement dated December 30, 1997. (Incorporated
by reference to Exhibit 10(jj) of the Company's report on Form 10-Q
dated February 9, 1998, for the quarter ended December 31, 1997.)
10(v) Private Shelf Agreement dated as of December 19, 1997 between the
registrant and ING Investment Management, Inc. (Incorporated by
reference to Exhibit 10(gg) of the Company's report on Form 10-Q dated
February 9, 1998, for the quarter ended December 31, 1997.)
29
<PAGE>
10(w) Series R-1 Senior Note drawn from Private Shelf dated as of December
19, 1997, between registrant and ING Investment Management, Inc.
(Incorporated by reference to Exhibit 10(hh) of the Company's report
on Form 10-Q dated February 9, 1998, for the quarter ended December
31, 1997.)
10(x) Series R-2 Senior Note drawn from Private Shelf dated as of December
19, 1997, between registrant and ING Investment Management, Inc.
(Incorporated by reference to Exhibit 10(ii) of the Company's report
on Form 10-Q dated February 9, 1998, for the quarter ended December
31, 1997.)
10(y) Series G Senior Note dated as of July 10, 1998 between the registrant
and Prudential Insurance Company of America. (Incorporated by
reference to the Company's report on Form 10-K dated September 17,
1998, for the year ended June 30, 1998.)
10(z) Revolving Credit Agreement dated May 5, 1998 between the registrant
and Bank of America National Trust and Savings Associations.
(Incorporated by reference to Exhibit 10(ii) of the Company's
report on Form 10-K dated September 17, 1998, for the year ended
June 30, 1998.)
10(aa) Modifications to the Revolving Credit Agreement in 10(z) dated
September 1, 1998. (Incorporated by reference to Exhibit 10(kk) of
the Company's report on Form 10-K dated September 17, 1998, for
the year ended June 30, 1998.)
10(bb) Term Note C Agreement between the registrant and LaSalle National Bank
dated September 1, 1998. (Incorporated by reference to Exhibit 10(mm)
of the Company's report on Form 10-Q dated November 9, 1998, for the
quarter ended September 30, 1998.)
10(cc) Term Note Agreement between the registrant and Bank of America
National Trust and Savings Association dated December 31, 1998.
(Incorporated by reference to Exhibit 10(nn) of the Company's report
on Form 10-Q dated May 11, 1999, for the quarter ended March 31,
1999.)
10(dd) Term Note H-1 Agreement between the registrant and the Prudential
Insurance Company of America dated March 26, 1999. (Incorporated by
reference to Exhibit 10(oo) of the Company's report on Form 10-Q dated
May 11, 1999, for the quarter ended March 31, 1999.)
10(ee) Term Note H-2 Agreement between the registrant the Prudential
Insurance Company of America dated March 26, 1999. (Incorporated by
reference to Exhibit 10(pp) of the Company's report on Form 10-Q dated
May 11, 1999, for the quarter ended March 31, 1999.)
30
<PAGE>
10(ff) Term Note H-3 Agreement between the registrant the Prudential
Insurance Company of America dated March 26, 1999. (Incorporated by
reference to Exhibit 10(qq) of the Company's report on Form 10-Q dated
May 11, 1999, for the quarter ended March 31, 1999.)
10(gg) Term Note H-4 Agreement between the registrant the Prudential
Insurance Company of America dated March 26, 1999. (Incorporated by
reference to Exhibit 10(rr) of the Company's report on Form 10-Q dated
May 11, 1999, for the quarter ended March 31, 1999.)
10(hh) Modifications to the Revolving Credit Agreement dated February 1,
1999. (Incorporated by reference to Exhibit 10(ss) of the Company's
Form 10-Q dated May 11, 1999, for the quarter ended March 31, 1999.)
10(ii) Agreement and plan of merger between the Company and The Barbers,
Hairstyling for Men and Women (Incorporated by reference to the May
18, 1999, From S-4 (Reg. No. 333-75881)).
10(jj) Revolving Credit Agreement dated August 2, 1999 between the
registrant, Bank of America, National Association, LaSalle Bank, N.A.
and other financial institutions arranged by Bank of America
Securities LLC.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits:
13 Select pages of the 1999 Annual Report to Shareholders.
23 Consent of Independent Accountants.
27 Financial Data Schedule
(b) REPORTS ON FORM 8-K.
The following reports on Form 8-K were filed during the three months
ended June 30, 1999:
Form 8-K dated May 21, 1999 related to the announcement of the
company's earnings for the one month period ended April 30, 1999.
31
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed
on its behalf by the undersigned, thereunto duly authorized.
REGIS CORPORATION
By /s/ Paul D. Finkelstein
--------------------------------
Paul D. Finkelstein, President and Chief Executive Officer
By /s/ Randy L. Pearce
--------------------------------
Randy L. Pearce, Executive Vice President, Chief Administrative Officer
and Chief Financial Officer
(Principal Financial and Accounting Officer)
DATE: September 17, 1999
------------------------------
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.
/s/ Myron Kunin
- -------------------------------
Myron Kunin, Chairman of the
Board of Directors
/s/ Paul D. Finkelstein
- --------------------------------
Paul D. Finkelstein, Director
/s/ Christopher A. Fox
- --------------------------------
Christopher A. Fox, Director
/s/ David B. Kunin
- --------------------------------
David B. Kunin, Director
/s/ Rolf Bjelland
- --------------------------------
Rolf Bjelland, Director
/s/ Van Zandt Hawn
- --------------------------------
Van Zandt Hawn, Director
/s/ Susan S. Hoyt
- --------------------------------
Susan S. Hoyt, Director
/s/Thomas L. Gregory
- --------------------------------
Thomas L. Gregory, Director
32
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS ON
FINANCIAL STATEMENT SCHEDULE
To the Board of Directors
of Regis Corporation
Our audits of the consolidated financial statements referred to in our report
dated August 24, 1999 appearing in the 1999 Annual Report to Shareholders of
Regis Corporation (which report and consolidated financial statements are
incorporated by reference in this Annual Report on Form 10-K) also included an
audit of the financial statement schedule listed in Item 14(a)(2) of this Form
10-K. In our opinion, this financial statement schedule presents fairly, in
all material respects, the information set forth therein when read in
conjunction with the related consolidated financial statements.
/s/ PricewaterhouseCoopers LLP
PRICEWATERHOUSECOOPERS LLP
Minneapolis, Minnesota
August 24, 1999
33
<PAGE>
REGIS CORPORATION
SCHEDULE II - VALUATION AND QUALIFYING ACCOUNTS
as of June 30, 1999, 1998 and 1997
(dollars in thousands)
<TABLE>
<CAPTION>
Column A Column B Column C Column D Column E
- -------- -------- ---------------------- -------- ---------
Balance at Charged to Balance at
beginning costs and Charged to end of
Description of period expenses Other Accounts Deductions period
- ----------- --------- -------- -------------- ---------- --------
<S> <C> <C> <C> <C> <C>
JUNE 30, 1999:
Valuation Account, Allowance for doubtful accounts $ 678 $ 35 $467 $246
JUNE 30, 1998:
Valuation Account, Receivable from Premier Salons $2,899 $2,899 (1) $0
Valuation Account, Premier Salons Preferred Stock $500 $500 (2) $0
Valuation Account, Allowance for doubtful accounts $ 650 $150 $122 $678
JUNE 30, 1997:
Valuation Account, Receivable from Premier Salons $3,800 $901(3) $2,899
Valuation Account, Premier Salons Preferred Stock $500 $500
Valuation Account, Allowance for doubtful accounts $ 689 $341 $380 $650
</TABLE>
Notes:
- ------
(1) Includes a payment of $156,000 and salon assets totaling $629,000 received
in partial settlement of previously reserved balance.
(2) Redemption of Preferred Stock by Premier Salons.
(3) Payments received on previously reserved balance.
34
<PAGE>
INDEX TO CLOSING
DOCUMENTS
----------------------------------------
CREDIT AGREEMENT
dated as of August 2, 1999
among
REGIS CORPORATION,
BANK OF AMERICA, NATIONAL
ASSOCIATION,
as Administrative Agent,
LASALLE BANK, N.A.,
as Co-Administrative Agent
and
as Swingline Lender,
and
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
Arranged by
BANC OF AMERICA SECURITIES LLC
----------------------------------------
<PAGE>
Each capitalized term used but not otherwise defined herein shall have
the meaning ascribed thereto in the Credit Agreement.
<TABLE>
<CAPTION>
PARTIES
<S> <C>
Bank of America, National Association "Agent"
Regis Corporation "Company"
Bert M. Gross, Esq. "BMG"
Winston & Strawn "W&S"
The Prudential Insurance Company of
America "Prudential"
ING Investment Management, LLC "ING"
</TABLE>
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------
TAB NO. DOCUMENT:
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C>
LOAN DOCUMENTS
--------------
- ----------------------------------------------------------------------------------------------
1. Credit Agreement
- ----------------------------------------------------------------------------------------------
SCHEDULES:
- ----------------------------------------------------------------------------------------------
1.01 Existing Letters of Credit
2.01 Commitments and Pro Rata Shares
6.12 Environmental Matters
6.17 Capitalization; Subsidiaries and Minority Interests
8.01 Permitted Liens
8.04 Investments
8.05 Permitted Indebtedness
8.08 Contingent Obligations
11.02 Lending Offices; Addresses for Notices
- ----------------------------------------------------------------------------------------------
EXHIBITS:
- ----------------------------------------------------------------------------------------------
A. Form of Notice of Borrowing
B. Form of Notice of Conversion/Continuation
C. Form of Compliance Certificate
D. Form of Assignment and Acceptance
- ----------------------------------------------------------------------------------------------
-2-
<PAGE>
- ----------------------------------------------------------------------------------------------
TAB NO. DOCUMENT:
- ----------------------------------------------------------------------------------------------
2. Certificate of a Responsible Officer of the Company as to (a)
representations and warranties, (b) no Default or Event of
Default and (c) no event causing a Material Adverse Effect
since June 30, 1998
- ----------------------------------------------------------------------------------------------
3. Notes
- ----------------------------------------------------------------------------------------------
4. Subsidiary Guaranty
- ----------------------------------------------------------------------------------------------
CORPORATE DOCUMENTS [FOR THE COMPANY AND EACH GUARANTOR]:
- ---------------------------------------------------------
- ----------------------------------------------------------------------------------------------
5. Certificate/Articles of Incorporation certified by the Secretary of
State of its jurisdiction of incorporation
A. Regis Corporation
B. Trade Secret, Inc.
C. Supercuts, Inc.
D. The Barbers, Hairstyling for Men & Women, Inc.
E. Regis International Ltd.
- ----------------------------------------------------------------------------------------------
6. Certificate of the Secretary or Assistant Secretary certifying
as to (a) Certificate/Articles of Incorporation, (b) by-laws,
and (c) resolutions of its board of directors
A. Regis Corporation
B. Trade Secret, Inc.
C. Supercuts, Inc.
D. The Barbers, Hairstyling for Men & Women, Inc.
E. Regis International Ltd.
- ----------------------------------------------------------------------------------------------
7. Certificate of good standing issued by the Secretary of State
of its jurisdiction of incorporation
A. Regis Corporation
B. Trade Secret, Inc.
C. Supercuts, Inc.
D. The Barbers, Hairstyling for Men & Women, Inc.
E. Regis International Ltd.
- ----------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------
LEGAL OPINION
- -------------
- ----------------------------------------------------------------------------------------------
8. Opinion of Bert M. Gross, Esq., counsel to the Company and the
Guarantors
- ----------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------
-3-
<PAGE>
- ----------------------------------------------------------------------------------------------
TAB NO. DOCUMENT:
- ----------------------------------------------------------------------------------------------
MISCELLANEOUS
- -------------
- ----------------------------------------------------------------------------------------------
9. Payoff Letter from LaSalle Bank National Association
- ----------------------------------------------------------------------------------------------
10. Payoff Letter from Bank of America, National Association
- ----------------------------------------------------------------------------------------------
11. Amendment No. 3 to LaSalle Amended and Restated Credit Agreement
- ----------------------------------------------------------------------------------------------
12. Amendment to Private Shelf Agreement among the Company, Life
Insurance Company of Georgia, Golden American Life Insurance
Company and Security Life of Denver Insurance Company
- ----------------------------------------------------------------------------------------------
13. Amendment to Private Shelf Agreement between the Company and the
Prudential Insurance Company of America
- ----------------------------------------------------------------------------------------------
14. Intercreditor Agreement among the Revolving Lenders, the Term
Lenders, the Agent, ING, and Prudential, on behalf of the
Noteholders
- ----------------------------------------------------------------------------------------------
</TABLE>
-4-
<PAGE>
EXECUTION COPY
CREDIT AGREEMENT
DATED AS OF AUGUST 2, 1999
AMONG
REGIS CORPORATION,
BANK OF AMERICA, NATIONAL ASSOCIATION,
AS ADMINISTRATIVE AGENT,
LASALLE BANK, N.A.,
AS CO-ADMINISTRATIVE AGENT
AND
AS SWING LINE LENDER,
AND
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
ARRANGED BY
BANC OF AMERICA SECURITIES LLC
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Section Page
<S> <C>
ARTICLE I..........................................................................................8
ARTICLE II........................................................................................30
2.06 UTILIZATION OF COMMITMENTS IN AN ALTERNATIVE CURRENCY...................................36
2.11 FEES. In addition to certain fees described in SECTION 3.08:...........................40
2.13 PAYMENTS BY THE COMPANY.................................................................41
ARTICLE III.......................................................................................43
ARTICLE IV........................................................................................51
ARTICLE V.........................................................................................55
(a) CREDIT AGREEMENT. This Agreement executed by each party thereto;...............55
(b) RESOLUTIONS; INCUMBENCY.........................................................55
ARTICLE VI........................................................................................57
6.07 ERISA COMPLIANCE........................................................................59
6.20 SOLVENCY. The Company and each of its Subsidiaries are Solvent.........................62
ARTICLE VII.......................................................................................63
ARTICLE VIII......................................................................................68
ARTICLE IX........................................................................................74
(k) CHANGE OF CONTROL. There occurs any Change of Control; or......................77
ARTICLE X.........................................................................................78
ARTICLE XI........................................................................................83
11.04 COSTS AND EXPENSES. The Company shall:................................................85
</TABLE>
<PAGE>
SCHEDULES
Schedule 1.01 Existing Letters of Credit
Schedule 2.01 Commitments and Pro Rata Shares
Schedule 6.12 Environmental Matters
Schedule 6.17 Capitalization; Subsidiaries and Minority Interests
Schedule 8.01 Permitted Liens
Schedule 8.04 Investments
Schedule 8.05 Permitted Indebtedness
Schedule 8.08 Contingent Obligations
Schedule 11.02 Lending Offices; Addresses for Notices
EXHIBITS
Exhibit A Form of Notice of Borrowing
Exhibit B Form of Notice of Conversion/Continuation
Exhibit C Form of Compliance Certificate
Exhibit D Form of Assignment and Acceptance
<PAGE>
CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of August 2, 1999, among
Regis Corporation, a Minnesota corporation (the "COMPANY"), the several
financial institutions from time to time party to this Agreement
(collectively, the "LENDERS"; individually, a "LENDER"), Bank of America,
National Association, as Administrative Agent for the Lenders, and LaSalle
Bank, N.A., as Co-Administrative Agent for the Lenders and as Swing Line
Lender.
WHEREAS, the Lenders have agreed to provide certain credit
facilities to the Company in order to refinance certain existing indebtedness
and to provide funds for acquisitions, working capital and general corporate
purposes, all upon the terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.01 CERTAIN DEFINED TERMS. The following terms have the following
meanings:
"ABN AMRO" means ABN AMRO Bank N.V., an Affiliate of
LaSalle.
"ACQUISITION" means any transaction or series of related
transactions for the purpose of or resulting, directly or indirectly,
in (a) the acquisition of all or substantially all of the assets of a
Person, or of any business or division of a Person, (b) the
acquisition of in excess of 50% of the capital stock, partnership
interests, membership interests or equity of any Person, or otherwise
causing any Person to become a Subsidiary, or (c) a merger or
consolidation or any other combination with another Person (other
than a Person that is a Subsidiary) provided that the Company or the
Subsidiary is the surviving entity.
"AFFILIATE" means, as to any Person, any other Person
which, directly or indirectly, is in control of, is controlled by, or
is under common control with, such Person. A Person shall be deemed
to control another Person if the controlling Person possesses,
directly or indirectly, the power to direct or cause the direction of
the management and policies of the other Person, whether through the
ownership of voting securities, membership interests, by contract, or
otherwise.
"AGENT" means BofA in its capacity as administrative agent
for the Lenders hereunder, and any successor agent arising under
SECTION 10.09.
<PAGE>
"AGENT-RELATED PERSONS" means BofA, LaSalle, any successor
administrative agent or co-administrative agent arising under SECTION
10.09 and any successor letter of credit issuing bank hereunder,
together with their respective Affiliates (including, in the case of
BofA, the Arranger), and the officers, directors, employees, agents
and attorneys-in-fact of such Persons and Affiliates.
"AGGREGATE COMMITMENT" means the aggregate Commitments of
the Lenders.
"AGREED ALTERNATIVE CURRENCY" has the meaning specified in
SUBSECTION 2.06(e).
"AGREEMENT" means this Credit Agreement.
"ALTERNATIVE CURRENCY LOANS" means Offshore Rate Loans
denominated in a currency other than Dollars.
"APPLICABLE COMMITMENT FEE PERCENTAGE" means, subject to
the last sentence of this definition, for any period, the applicable
of the following percentages in effect with respect to such period as
the Debt to Capitalization Ratio of the Company shall fall within the
indicated ranges:
<TABLE>
<CAPTION>
APPLICATION COMMITMENT
FEE PERCENTAGE
DEBT TO CAPITALIZATION RATIO (IN BASIS POINTS)
---------------------------- -----------------
<S> <C>
Less Greater Than
Than or Equal to
---- -----------
.40:1.0 ---- 15.0
.45:1.0 .40:1.0 17.5
---- .45:1.0 25.0
</TABLE>
The Debt to Capitalization Ratio shall be calculated by the Company
as of the end of each fiscal quarter, commencing with the fiscal
quarter ending September 30, 1999, and shall be reported to the
Co-Administrative Agent pursuant to a Compliance Certificate executed
by a Responsible Officer of the Company and delivered pursuant to
SUBSECTION 7.02(b) hereof. The Applicable Commitment Fee Percentage
shall be adjusted, if necessary, on the third Business Day after the
delivery of such certificate; PROVIDED, that if such certificate,
together with the financial statements to which such certificate
relates, is not delivered to the Co-Administrative Agent by the fifth
Business Day after the date on which the related financial statements
are due to be delivered to the Co-Administrative Agent pursuant to
SUBSECTION 7.01(a) or (b), then, from such fifth Business Day until
the third Business Day after delivery of such certificate, the
Applicable Commitment Fee Percentage shall be equal to 25.0 basis
points. From the Closing Date until adjusted as described above, the
Applicable Commitment Fee Percentage shall be equal to 17.5 basis
points. Notwithstanding the foregoing, no reduction in the Applicable
Commitment Fee Percentage shall be effected if a Default or Event of
Default shall have occurred and be continuing on the date when such
change would otherwise occur, it being understood that
<PAGE>
on the third Business Day immediately succeeding the day on which
such Default or Event of Default is either waived or cured (assuming
no other Default or Event of Default shall then be pending), the
Applicable Commitment Fee Percentage shall be reduced (on a
prospective basis) in accordance with the then most recently
delivered Compliance Certificate.
"APPLICABLE CURRENCY" means, as to any particular payment
or Loan, Dollars or the Offshore Currency in which it is denominated
or payable.
"APPLICABLE MARGIN" means, subject to the last sentence of
this definition, for any period, the applicable of the following
percentages in effect with respect to such period as the Debt to
Capitalization Ratio of the Company shall fall within the indicated
ranges:
<TABLE>
APPLICABLE
MARGIN
DEBT TO CAPITALIZATION RATIO (IN BASIS POINTS)
---------------------------- ---------------
<S> <C>
Less Greater Than
Than or Equal to
---- ------------
.35:1.0 ---- 50.0
.40:1.0 .35:1.0 62.5
.45:1.0 .40:1.0 75.0
---- .45:1.0 100.0
</TABLE>
In addition, the Applicable Margin will be increased by 0.05% on each
day on which the sum of (a) the aggregate Effective Amount of
outstanding Loans plus (b) the aggregate Effective Amount of
outstanding Letters of Credit exceeds 75% of the Aggregate
Commitment. The Debt to Capitalization Ratio shall be calculated by
the Company as of the end of each fiscal quarter, commencing with the
fiscal quarter ending September 30, 1999, and shall be reported to
the Co-Administrative Agent pursuant to a Compliance Certificate
executed by a Responsible Officer of the Company and delivered
pursuant to SUBSECTION 7.02(b) hereof. The Applicable Margin shall be
adjusted, if necessary, on the third Business Day after the delivery
of such certificate, with such adjustment to apply to all Interest
Periods then outstanding and beginning thereafter until the next
adjustment date; PROVIDED, that if such certificate, together with
the financial statements to which such certificate relates, is not
delivered to the Co-Administrative Agent by the fifth Business Day
after the date on which the related financial statements are due to
be delivered to the Co-Administrative Agent pursuant to SUBSECTION
7.01(a) or (b), then, from such fifth Business Day until the third
Business Day after delivery of such certificate, the Applicable
Margin shall be equal to 100.0 basis points. From the Closing Date
until adjusted as described above, the Applicable Margin shall be
equal to 75.0 basis points. Notwithstanding the foregoing, no
reduction in the Applicable Margin shall be effected if a Default or
Event of Default shall have occurred and be continuing on the date
such change would otherwise occur, it being understood that on the
third Business Day immediately succeeding the day on which such
Default or Event of Default is either waived or cured (assuming no
other Default or Event of Default shall then be pending)
<PAGE>
the Applicable Margin shall be reduced (on a prospective basis) in
accordance with the then most recently delivered Compliance
Certificate.
"ARRANGER" means Banc of America Securities LLC.
"ASSET DISPOSITION" has the meaning specified in SECTION
8.02.
"ASSIGNEE" has the meaning specified in SUBSECTION
11.08(a).
"ATTORNEY COSTS" means and includes all reasonable fees
and disbursements of any law firm or other external counsel, the
allocated cost of internal legal services and all disbursements of
internal counsel.
"BANKING DAY" means any day other than a Saturday, Sunday
or other day on which commercial banks in Chicago, Illinois or San
Francisco, California are authorized or required by law to close, and
(a) with respect to disbursements and payments in Dollars, a day on
which dealings are carried on in the applicable offshore Dollar
interbank market and (b) with respect to any disbursements and
payments in and calculations pertaining to any Offshore Rate Loan, a
day on which dealings in the Offshore Currency are carried on in the
applicable offshore foreign exchange interbank market in which
disbursement of or payment in such Offshore Currency will be made or
received hereunder.
"BANKRUPTCY CODE" means the Federal Bankruptcy Reform Act
of 1978 (11 U.S.C. Section 101, ET SEQ.).
"BASE RATE" means, with respect to an obligation
denominated in Dollars for any day, the higher of (a) 0.50% per annum
above the latest Federal Funds Rate and (b) the rate of interest in
effect for such day as publicly announced from time to time by
LaSalle in Chicago, Illinois, as its "reference rate". The "reference
rate" is a rate set by LaSalle based upon various factors including
LaSalle's costs and desired return, general economic conditions and
other factors, and is used as a reference point for pricing some
loans, which may be priced at, above, or below such announced rate.
Any change in the reference rate announced by LaSalle shall take
effect at the opening of business on the day specified in the public
announcement of such change.
"BASE RATE LOAN" means a Loan or an L/C Advance that bears
interest based on the Base Rate.
"BASIS POINT" means one one-hundredth of one percent.
"BOFA" means Bank of America, National Association, a
national banking association.
"BORROWING" means a borrowing hereunder consisting of
Revolving Loans of the same Type made to the Company on the same day
by the Lenders under ARTICLE II, and,
<PAGE>
in the case of Offshore Rate Loans, having the same Interest Period.
The making of a Swing Line Loan shall not constitute a Borrowing.
"BORROWING DATE" means any date on which a Borrowing
occurs under SECTION 2.03.
"BUSINESS DAY" means any day other than a Saturday, Sunday
or other day on which commercial banks in Chicago, Illinois or San
Francisco, California are authorized or required by law to close and,
if the applicable Business Day relates to any Offshore Rate Loan,
means a Banking Day.
"CAPITAL ADEQUACY REGULATION" means any guideline, request
or directive of any central bank or other Governmental Authority, or
any other law, rule or regulation, whether or not having the force of
law, in each case, regarding capital adequacy of any bank or of any
corporation controlling a bank.
"CAPITAL LEASE" has the meaning specified in the
definition of "Capital Lease Obligations".
"CAPITAL LEASE OBLIGATIONS" means all monetary obligations
of the Company or any of its Subsidiaries under any leasing or
similar arrangement which, in accordance with GAAP, is classified as
a capital lease (a "CAPITAL LEASE").
"CAPITAL STOCK" means (a) in the case of a corporation,
corporate stock, (b) in the case of an association or business
entity, any and all shares, interests, participations, rights or
other equivalents (however designated) of corporate stock, (c) in the
case of a partnership or limited liability company, partnership or
membership interests (whether general or limited) and (d) any other
interest or participation that confers on a Person the right to
receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"CASH COLLATERALIZE" means to pledge and deposit with
or deliver to the Co-Administrative Agent, for the benefit of the
Agent, the Co-Administrative Agent, the Issuer and the Lenders, as
additional collateral for the L/C Obligations, cash or deposit
account balances pursuant to documentation in form and substance
satisfactory to the Co-Administrative Agent and the Issuer (which
documents are hereby consented to by the Lenders). Derivatives of
such term shall have corresponding meanings. The Company hereby
grants the Co-Administrative Agent, for the benefit of the Agent,
the Co-Administrative Agent, the Issuer and the Lenders, a
security interest in all such cash and deposit account balances.
Cash collateral shall be maintained in blocked deposit accounts at
LaSalle. The Co-Administrative Agent shall invest any and all
available funds deposited in such deposit accounts, within 10
business days after the date the relevant funds become available,
in securities issued or fully guaranteed or insured by the United
States Government or any agency thereof backed by the full faith
and credit of the United States having maturities of three months
from the date of acquisition thereof (collectively, "GOVERNMENTAL
OBLIGATIONS"). The Company hereby acknowledges and
<PAGE>
agrees that the Co-Administrative Agent shall not have any liability
with respect to, and the Company hereby indemnifies the
Co-Administrative Agent against, any loss resulting from the
acquisition of the Government Obligations and the Co-Administrative
Agent shall not have any obligation to monitor the trading activity
of any such Governmental Obligations on and after the acquisition
thereof for the purpose of obtaining the highest possible return with
respect thereto, the Co-Administrative Agent's responsibility being
limited to acquiring such Governmental Obligations.
"CASH EQUIVALENTS" means:
(a) securities issued or fully guaranteed or
insured by the United States Government or any agency
thereof and backed by the full faith and credit of the
United States having maturities of not more than six
months from the date of acquisition;
(b) certificates of deposit, time deposits,
Eurodollar time deposits, repurchase agreements, reverse
repurchase agreements, or bankers' acceptances, having in
each case a term of not more than six months, issued by
any Lender, or by any U.S. commercial bank having combined
capital and surplus of not less than $100,000,000 whose
short term securities are rated at least A-1 by S&P and
P-1 by Moody's; and
(c) commercial paper of an issuer rated at least
A-1 by S&P or P-1 by Moody's and in either case having a
tenor of not more than three months.
"CERCLA" has the meaning specified in the definition of
"Environmental Laws."
"CHANGE OF CONTROL" means (a) any Person or any two or
more Persons acting in concert acquiring beneficial ownership (within
the meaning of Rule 13d-3 of the Securities and Exchange Commission
under the Exchange Act), directly or indirectly, of capital stock of
the Company (or other securities convertible into such capital stock)
representing 20% or more of the combined voting power of all capital
stock of the Company entitled to vote in the election of directors,
other than capital stock having such power only by reason of the
happening of a contingency; or (b) during any period of twelve
consecutive calendar months, individuals who at the beginning of such
period constituted the Company's board of directors (together with
any new directors whose election by the Company's board of directors
or whose nomination for election by the Company's stockholders was
approved by a vote of at least a majority of the directors then still
in office who either were directors at the beginning of such period
or whose election or nomination for election was previously so
approved) cease for any reasons other than death or disability to
constitute a majority of the directors then in office.
"CLOSING DATE" means the date on which all conditions
precedent set forth in SECTION 5.01 are satisfied or waived by all
Lenders (or, in the case of SUBSECTION 5.01(e), waived by the
Person entitled to receive such payment).
<PAGE>
"CO-ADMINISTRATIVE AGENT" means LaSalle in its capacity as
co-administrative agent for the Lenders hereunder, and any successor
co-administrative agent arising under SECTION 10.09.
"CO-ADMINISTRATIVE AGENT'S PAYMENT OFFICE" means (a) in
respect of payments in Dollars, the address for payments set forth on
SCHEDULE 11.02 or such other address as the Co-Administrative Agent
may from time to time specify, and (b) in the case of payments in any
Offshore Currency, such address as the Co-Administrative Agent may
from time to time specify in accordance with SECTION 11.02.
"CODE" means the Internal Revenue Code of 1986, as
amended, and regulations promulgated thereunder.
"COMMITMENT" has the meaning specified in SECTION 2.01.
"COMPANY" has the meaning specified in the introductory
clause hereto.
"COMPLIANCE CERTIFICATE" means a certificate substantially
in the form of EXHIBIT C.
"COMPUTATION DATE" has the meaning specified in
SUBSECTION 2.06(a).
"CONTINGENT OBLIGATION" means, as to any Person, any
direct or indirect liability of that Person, whether or not
contingent, with or without recourse, (a) with respect to any
Indebtedness, lease, dividend, letter of credit or other obligation
(the "PRIMARY OBLIGATIONS") of another Person (the "PRIMARY
OBLIGOR"), including any obligation of that Person (i) to purchase,
repurchase or otherwise acquire such primary obligations or any
security therefor, (ii) to advance or provide funds for the payment
or discharge of any such primary obligation, or to maintain working
capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency or any balance sheet item, level
of income or financial condition of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose
of assuring the owner of any such primary obligation of the ability
of the primary obligor to make payment of such primary obligation, or
(iv) otherwise to assure or hold harmless the holder of any such
primary obligation against loss in respect thereof (each, a "GUARANTY
OBLIGATION"); (b) with respect to any Surety Instrument issued for
the account of that Person or as to which that Person is otherwise
liable for reimbursement of drawings or payments; (c) to purchase any
materials, supplies or other property from, or to obtain the services
of, another Person if the relevant contract or other related document
or obligation requires that payment for such materials, supplies or
other property, or for such services, shall be made regardless of
whether delivery of such materials, supplies or other property is
ever made or tendered, or such services are ever performed or
tendered; or (d) in respect of any Swap Contract. The amount of any
Contingent Obligation, (x) in the case of Guaranty Obligations, shall
be deemed equal to the stated or determinable amount of the primary
obligation in respect of which such Guaranty Obligation is made or,
if not stated or if indeterminable, the maximum reasonably
anticipated liability in respect thereof, (y) in
<PAGE>
the case of Contingent Obligations in respect of Swap Contracts,
shall be deemed equal to the aggregate Swap Termination Value of such
Swap Contracts, and (z) in the case of other Contingent Obligations
shall be deemed equal to the maximum reasonably anticipated liability
in respect thereof.
"CONTRACTUAL OBLIGATION" means, as to any Person, any
provision of any security issued by such Person or of any agreement,
undertaking, contract, indenture, mortgage, deed of trust or other
instrument, document or agreement to which such Person is a party or
by which it or any of its property is bound.
"CONVERSION/CONTINUATION DATE" means any date on which,
under SECTION 2.04, the Company (a) converts Loans of one Type to
another Type, or (b) continues as Loans of the same Type, but with a
new Interest Period, Loans having Interest Periods expiring on such
date.
"CREDIT EXTENSION" means and includes (a) the making of
any Loans hereunder, and (b) the Issuance of any Letters of Credit
hereunder.
"CURRENT ASSETS" means all assets of the Company, on a
consolidated basis, which should, in accordance with GAAP, be
classified as current assets.
"CURRENT LIABILITIES" means all liabilities of the
Company, on a consolidated basis, which should, in accordance with
GAAP, be classified as current liabilities, other than current
maturities in respect of the Loans.
"DEBT TO CAPITALIZATION RATIO" means, as of any date of
determination, the ratio of (a) the Company's consolidated
Indebtedness as of such date, to (b) the sum of (i) the Company's
consolidated Indebtedness as of such date and (ii) the Company's Net
Worth as of such date.
"DEFAULT" means any event or circumstance which, with the
giving of notice, the lapse of time, or both, would (if not cured or
otherwise remedied during such time) constitute an Event of Default.
"DOLLAR EQUIVALENT" means, at any time, (a) as to any
amount denominated in Dollars, the amount thereof at such time, and
(b) as to any amount denominated in an Offshore Currency, the
equivalent amount in Dollars as determined by the Co-Administrative
Agent at such time on the basis of the Spot Rate for the purchase of
Dollars with such Alternative Offshore Currency on the most recent
Computation Date provided for in SUBSECTION 2.06(a).
"DOLLARS", "DOLLARS" and "$" each mean lawful money of
the United States.
"DOMESTIC SUBSIDIARY" means a Subsidiary that is organized
under the laws of the United States or any state thereof.
<PAGE>
"EBITDAR" means, for any period, for the Company and its
Subsidiaries on a consolidated basis, determined in accordance with
GAAP, the sum of (a) the net income (or net loss) for such period,
PLUS (b) all amounts treated as expenses for depreciation and
interest and the amortization of intangibles of any kind to the
extent included in the determination of such net income (or loss),
PLUS (c) all accrued taxes on or measured by income to the extent
included in the determination of such net income (or net loss), PLUS
(d) all Rental Expense for such period, PLUS (e) to the extent
applicable, the amount of the charge in respect of non-recurring
expenses taken in the fourth quarter of the Company's 1999 fiscal
year with respect to the Company's Acquisition of The Barbers,
Hairstylists for Men & Women, Inc. and the restructuring of
international operations, in an aggregate amount not to exceed
$14,000,000, PLUS (f) the amount of any other charge in respect of
non-recurring expenses arising in connection with Acquisitions, to
the extent approved by the Agent and the Required Lenders.
"EFFECTIVE AMOUNT" means (a) with respect to any Loans on
any date, the aggregate outstanding principal Dollar Equivalent
amount thereof after giving effect to any Borrowings and prepayments
or repayments of Loans occurring on such date and any Swing Line
Loans made on such date; and (b) with respect to any outstanding L/C
Obligations on any date, the Dollar Equivalent amount of such L/C
Obligations on such date after giving effect to any Issuances of
Letters of Credit occurring on such date and any other changes in the
aggregate amount of the L/C Obligations as of such date, including as
a result of any reimbursements of outstanding unpaid drawings under
any Letters of Credit or any reductions in the maximum amount
available for drawing under Letters of Credit taking effect on such
date.
"ELIGIBLE ASSIGNEE" means (a) a commercial bank organized
under the laws of the United States, or any state thereof, and having
a combined capital and surplus of at least $100,000,000; (b) a
commercial bank organized under the laws of any other country which
is a member of the Organization for Economic Cooperation and
Development (the "OECD"), or a political subdivision of any such
country, and having a combined capital and surplus of at least
$100,000,000, provided that such bank is acting through a branch or
agency located in the United States; and (c) a Person that is
primarily engaged in the business of commercial banking and that is
(i) a Subsidiary of a Lender, (ii) a Subsidiary of a Person of which
a Lender is a Subsidiary, or (iii) a Person of which a Lender is a
Subsidiary.
"ENVIRONMENTAL CLAIMS" means all claims, however asserted,
by any Governmental Authority or other Person alleging potential
liability or responsibility for violation of any Environmental Law,
or for release or injury to the environment or threat to public
health, personal injury (including sickness, disease or death),
property damage, natural resources damage, or otherwise alleging
liability or responsibility for damages (punitive or otherwise),
investigation, cleanup, removal, remedial or response costs,
restitution, civil or criminal penalties, injunctive relief, or other
type of relief, resulting from or based upon the presence,
placements, discharge, emission or release (including intentional and
unintentional, negligent and non-negligent, sudden or non-sudden,
<PAGE>
accidental or non-accidental, placements, spills, leaks, discharges,
emissions or releases) of any Hazardous Material at, in, or from any
property, whether or not owned by the Company or any Subsidiary or
taken as collateral, or in connection with any operations of the
Company.
"ENVIRONMENTAL LAWS" means all federal, state or local
laws, statutes, common law duties, rules, regulations, ordinances and
codes, together with all administrative orders, directed duties,
requests, licenses, authorizations and permits of, and agreements
with, any Governmental Authorities, in each case relating to
environmental, health, safety and land use matters, including without
limitation, the Comprehensive Environmental Response, Compensation
and Liability Act of 1980 ("CERCLA"), the Clean Air Act, the Federal
Water Pollution Control Act of 1972, the Solid Waste Disposal Act,
the Federal Resource Conservation and Recovery Act, the Toxic
Substances Control Act, and the Emergency Planning and Community
Right-to-Know Act.
"ENVIRONMENTAL PERMITS" has the meaning specified in
SUBSECTION 6.12(b).
"ERISA" means the Employee Retirement Income Security Act
of 1974, and regulations promulgated thereunder.
"ERISA AFFILIATE" means any trade or business (whether or
not incorporated) under common control with the Company within the
meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and
(o) of the Code for purposes of provisions relating to Section 412 of
the Code).
"ERISA EVENT" means (a) a Reportable Event with respect to
a Pension Plan; (b) a withdrawal by the Company or any ERISA
Affiliate from a Pension Plan subject to Section 4063 of ERISA during
a plan year in which it was a substantial employer (as defined in
Section 4001(a)(2) of ERISA) or a cessation of operations which is
treated as such a withdrawal under Section 4062(e) of ERISA; (c) a
complete or partial withdrawal by the Company or any ERISA Affiliate
from a Multiemployer Plan or notification that a Multiemployer Plan
is in reorganization; (d) the filing of a notice of intent to
terminate, the treatment of a Plan amendment as a termination under
Section 4041 or 4041A of ERISA, or the commencement of proceedings by
the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an
event or condition which might reasonably be expected to constitute
grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan or
Multiemployer Plan; or (f) the imposition of any liability to the
PBGC under Title IV of ERISA, other than PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon the Company or any ERISA
Affiliate.
"EURO" means the single currency of participating member
states of the European Monetary Union.
"EURODOLLAR RESERVE PERCENTAGE" has the meaning
specified in the definition of "Offshore Rate".
<PAGE>
"EVENT OF DEFAULT" means any of the events or
circumstances specified in SECTION 9.01.
"EXCHANGE ACT" means the Securities Exchange Act of 1934
and the regulations promulgated thereunder.
"FDIC" means the Federal Deposit Insurance Corporation,
and any Governmental Authority succeeding to any of its principal
functions.
"FEDERAL FUNDS RATE" means, for any day, the rate set
forth in the weekly statistical release designated as H.15(519), or
any successor publication, published by the Federal Reserve Bank of
New York (including any such successor, "H.15(519)") on the preceding
Business Day opposite the caption "Federal Funds (Effective)"; or, if
for any relevant day such rate is not so published on any such
preceding Business Day, the rate for such day will be the arithmetic
mean as determined by the Co-Administrative Agent of the rates for
the last transaction in overnight Federal funds arranged prior to
9:00 a.m. (Chicago time) on that day by each of three leading brokers
of Federal funds transactions in Chicago, Illinois selected by the
Co-Administrative Agent.
"FEE LETTERS" has the meaning specified in SUBSECTION
2.11(a).
"FIXED CHARGES" means, with respect to the Company and its
Subsidiaries on a consolidated basis, as of any date of
determination, (a) interest expense paid on outstanding Indebtedness
for the period of four fiscal quarters ending on the date of
determination, and (b) Rental Expense paid in such period.
"FRB" means the Board of Governors of the Federal Reserve
System, and any Governmental Authority succeeding to any of its
principal functions.
"FURTHER TAXES" means any and all present or future taxes,
levies, assessments, imposts, duties, deductions, fees, withholdings
or similar charges (including, without limitation, net income taxes
and franchise taxes), and all liabilities with respect thereto,
imposed by any jurisdiction on account of amounts payable or paid
pursuant to SECTION 4.01.
"FX TRADING OFFICE" means the Chicago office of LaSalle,
or such other office of LaSalle or ABN AMRO as the Co-Administrative
Agent may designate from time to time.
"GAAP" means generally accepted accounting principles set
forth from time to time in the opinions and pronouncements of the
Accounting Principles Board and the American Institute of Certified
Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board (or agencies with similar functions of
comparable stature and authority within the U.S. accounting
profession), which are applicable to the circumstances as of the date
of determination.
<PAGE>
"GOVERNMENTAL AUTHORITY" means any nation or
government, any state or other political subdivision thereof, any
central bank (or similar monetary or regulatory authority) thereof,
any entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government, and any
corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
"GUARANTORS" means each of the Subsidiaries of the Company
from time to time party to the Subsidiary Guaranty.
"GUARANTY OBLIGATION" has the meaning specified
in the definition of "Contingent Obligation."
"HAZARDOUS MATERIALS" means all those substances that are
regulated by, or which may form the basis of liability or a standard
of conduct under, any Environmental Law, including any substance
identified under any Environmental Law as a pollutant, contaminant,
hazardous waste, hazardous constituent, special waste, hazardous
substance, hazardous material, or toxic substance, or petroleum or
petroleum-derived substance or waste.
"HONOR DATE" has the meaning specified in SUBSECTION
3.03(b).
"INDEBTEDNESS" of any Person means, without duplication,
(a) all indebtedness for borrowed money; (b) all obligations issued,
undertaken or assumed as the deferred purchase price of property or
services (other than trade payables entered into in the ordinary
course of business on ordinary terms); (c) all reimbursement or
payment obligations with respect to Surety Instruments and all L/C
Obligations; (d) all obligations evidenced by notes, bonds,
debentures or similar instruments, including obligations so evidenced
incurred in connection with the acquisition of property, assets or
businesses; (e) all indebtedness created or arising under any
conditional sale or other title retention agreement, or incurred as
financing, in either case with respect to property acquired by the
Person (even though the rights and remedies of the seller or bank
under such agreement in the event of default are limited to
repossession or sale of such property); (f) all Capital Lease
Obligations; (g) the principal balance outstanding under any
synthetic lease, tax retention operating lease, off-balance sheet
loan or similar off-balance sheet financing product to which such
Person is a party, where such transaction is considered borrowed
money indebtedness for tax purposes but is classified as an operating
lease in accordance with GAAP; (h) all indebtedness referred to in
clauses (a) through (g) above secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise, to
be secured by) any Lien upon or in property (including accounts and
contract rights) owned by such Person, even though such Person has
not assumed or become liable for the payment of such Indebtedness;
and (i) all Guaranty Obligations in respect of indebtedness or
obligations of others of the kinds referred to in clauses (a) through
(h) above. For all purposes of this Agreement, the Indebtedness of
any Person shall include all recourse Indebtedness of any partnership
or joint venture or limited
<PAGE>
liability company in which such Person is a general partner or a
joint venturer or a member and as to which such Person is or may
become directly liable.
"INDEMNIFIED LIABILITIES" has the meaning specified in
SECTION 11.05.
"INDEMNIFIED PERSON" has the meaning specified in
SECTION 11.05.
"INDEPENDENT AUDITOR" has the meaning specified in
SUBSECTION 7.01(a).
"INSOLVENCY PROCEEDING" means, with respect to any Person,
(a) any case, action or proceeding with respect to such Person before
any court or other Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution,
winding-up or relief of debtors, or (b) any general assignment for
the benefit of creditors, composition, marshalling of assets for
creditors, or other, similar arrangement in respect of its creditors
generally or any substantial portion of its creditors; in each case,
undertaken under U.S. Federal, state or foreign law, including the
Bankruptcy Code.
"INTERCOMPANY INDEBTEDNESS" means Indebtedness of the
Company or any of its Subsidiaries which, in the case of the Company,
is owing to any Subsidiary of the Company, and which, in the case of
any Subsidiary, is owing to the Company or any of its other
Subsidiaries.
"INTEREST PAYMENT DATE" means, as to any Offshore Rate
Loan, the last day of each Interest Period applicable to such Loan
and, as to any Base Rate Loan, the last Business Day of each calendar
quarter; PROVIDED, HOWEVER, that if any Interest Period for an
Offshore Rate Loan exceeds three months, the date that falls three
months after the beginning of such Interest Period and after each
Interest Payment Date thereafter is also an Interest Payment Date.
"INTEREST PERIOD" means, as to any Offshore Rate Loan, the
period commencing on the Borrowing Date of such Loan or on the
Conversion/Continuation Date on which the Loan is converted into or
continued as an Offshore Rate Loan, and ending on the date one, two,
three or six months thereafter as selected by the Company in its
Notice of Borrowing or Notice of Conversion/Continuation;
PROVIDED that:
(a) if any Interest Period would otherwise end
on a day that is not a Business Day, that Interest Period
shall be extended to the following 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 preceding Business Day;
(b) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the
<PAGE>
calendar month at the end of such Interest Period) shall
end on the last Business Day of the calendar month at the
end of such Interest Period; and
(c) no Interest Period for any Loan shall extend
beyond the Termination Date.
"INVESTMENTS" has the meaning specified in SECTION 8.04.
"IRS" means the Internal Revenue Service, and any
Governmental Authority succeeding to any of its principal functions
under the Code.
"ISSUANCE DATE" has the meaning specified in SUBSECTION
3.01(a).
"ISSUE" means, with respect to any Letter of Credit, to
issue or to extend the expiry of, or to renew or increase the amount
of, such Letter of Credit; and the terms "ISSUED," "ISSUING" and
"ISSUANCE" have corresponding meanings.
"ISSUER" means LaSalle in its capacity as issuer of one or
more Letters of Credit hereunder, together with any replacement
letter of credit issuer arising under SUBSECTION 10.01(b) or SECTION
10.09.
"JOINT VENTURE" means a single-purpose corporation,
partnership, limited liability company, joint venture or other
similar legal arrangement (whether created by contract or conducted
through a separate legal entity) now or hereafter formed by the
Company or any of its Subsidiaries with another Person in order to
conduct a common venture or enterprise with such Person.
"JUDGMENT CURRENCY" has the meaning specified in
SECTION 11.18.
"LASALLE" means LaSalle Bank, N.A., a national banking
association.
"L/C ADVANCE" means each Lender's participation in any L/C
Borrowing in accordance with its Pro Rata Share.
"L/C AMENDMENT APPLICATION" means an application form for
amendment of outstanding standby letters of credit as shall at any
time be in use at the Issuer, as the Issuer shall request.
"L/C APPLICATION" means an application form for issuances
of standby letters of credit as shall at any time be in use at the
Issuer, as the Issuer shall request.
"L/C BORROWING" means an extension of credit resulting
from a drawing under any Letter of Credit which shall not have been
reimbursed on the date when made nor converted into a Borrowing of
Loans under SUBSECTION 3.03(d).
"L/C COMMITMENT" means the commitment of the Issuer to
Issue, and the commitment of the Lenders severally to participate in,
Letters of Credit from time to time
<PAGE>
Issued or outstanding under ARTICLE III, in an aggregate amount not
to exceed $5,000,000 on any date; PROVIDED that the L/C Commitment is
a part of the Aggregate Commitment, rather than a separate,
independent commitment.
"L/C OBLIGATIONS" means at any time the sum of (a) the
aggregate undrawn amount of all Letters of Credit then outstanding,
plus (b) the amount of all unreimbursed drawings under all Letters of
Credit, including all outstanding L/C Borrowings.
"L/C-RELATED DOCUMENTS" means the Letters of Credit, the
L/C Applications, the L/C Amendment Applications and any other
document relating to any Letter of Credit, including any standard
form documents used by the Issuer for letter of credit issuances.
"LENDER" has the meaning specified in the introductory
clause hereto. References to the "Lenders" shall include BofA and
LaSalle, including in its capacity as Issuer and as Swing Line
Lender; for purposes of clarification only, to the extent that
LaSalle may have any rights or obligations in addition to those of
the Lenders due to its status as an Issuer or as Swing Line
Lender, respectively, its status as such will be specifically
referenced.
"LENDING OFFICE" means, as to any Lender, the office or
offices, branches, subsidiaries or affiliates of such Lender
specified as its "Lending Office" or "Domestic Lending Office" or
"Offshore Lending Office", as the case may be, on SCHEDULE 11.02,
or such other office or offices, branches, subsidiaries or
affiliates as such Lender may from time to time notify the Company
and the Agent.
"LETTERS OF CREDIT" means (a) each of the outstanding
standby letters of credit previously issued by LaSalle and described
on SCHEDULE 1.01 hereto, and (b) any standby letter of credit issued
by the Issuer pursuant to ARTICLE III on or after the date of the
Agreement.
"LIEN" means any security interest, mortgage, deed of trust,
pledge, hypothecation, assignment, charge or deposit arrangement,
encumbrance, lien (statutory or other) or preferential arrangement of
any kind or nature whatsoever in respect of any property (including
those created by, arising under or evidenced by any conditional sale
or other title retention agreement, the interest of a lessor under a
capital lease, any financing lease having substantially the same
economic effect as any of the foregoing, or the filing of any
financing statement naming the owner of the asset to which such lien
relates as debtor, under the Uniform Commercial Code or any
comparable law) and any contingent or other agreement to provide any
of the foregoing, but not including the interest of a lessor under an
operating lease.
"LOAN" means an extension of credit by a Lender to the
Company under ARTICLE II or ARTICLE III in the form of a Revolving
Loan, Swing Line Loan or L/C Advance.
"LOAN DOCUMENTS" means this Agreement, any Notes, the Fee
Letters, the L/C-Related Documents, the Subsidiary Guaranty, the Rate
Swap Documents and all other
<PAGE>
documents delivered to the Agent, the Co-Administrative Agent or any
Lender in connection herewith.
"MARGIN STOCK" means "margin stock" as such term is
defined in Regulation T, U or X of the FRB.
"MATERIAL ADVERSE EFFECT" means (a) a material adverse
change in, or a material adverse effect upon, the operations,
business, assets, liabilities (actual or contingent), condition
(financial or otherwise) or prospects of the Company or the Company
and its Subsidiaries taken as a whole; (b) a material impairment of
the ability of the Company or any Subsidiary to perform under any
Loan Document and to avoid any Event of Default; or (c) a material
adverse effect upon the legality, validity, binding effect or
enforceability against the Company or any Subsidiary of any Loan
Document.
"MORTGAGE" means any deed of trust, mortgage, leasehold
mortgage, assignment of rents or other document creating a Lien on
real property or any interest in real property.
"MORTGAGED PROPERTY" means all property subject to a
Lien pursuant to a Mortgage.
"MULTIEMPLOYER PLAN" means a "multiemployer plan", within
the meaning of Section 4001(a)(3) of ERISA, to which the Company or
any ERISA Affiliate makes, is making, or is obligated to make
contributions or, during the preceding three calendar years, has
made, or been obligated to make, contributions.
"NET WORTH" means the shareholders' equity of the Company
as determined in accordance with GAAP.
"NOTE" means a promissory note executed by the Company in
favor of a Lender pursuant to SUBSECTION 2.02(b).
"NOTE AGREEMENTS" means, collectively, (a) that certain
Private Shelf Agreement dated as of July 25, 1995 and amended as of
July 11, 1997, January 22, 1998 and July 30, 1999 between the Company
and The Prudential Insurance Company of America and (b) that certain
Private Shelf Agreement dated as of December 19, 1997 and amended as
of July 30, 1999 between the Company and Life Insurance Company of
Georgia, each as further amended, supplemented or modified from time
to time.
"NOTICE OF BORROWING" means a notice in substantially
the form of EXHIBIT A.
"NOTICE OF CONVERSION/CONTINUATION" means a notice in
substantially the form of EXHIBIT B.
"OBLIGATIONS" means all advances, debts, liabilities,
obligations, covenants and duties arising under any Loan Document
owing by the Company or any Subsidiary to any
<PAGE>
Lender, the Agent, the Co-Administrative Agent or any Indemnified
Person, whether direct or indirect (including those acquired by
assignment), absolute or contingent, due or to become due, now
existing or hereafter arising.
"OFFSHORE CURRENCY" means at any time, pounds sterling,
Canadian dollars and any Agreed Alternative Currency.
"OFFSHORE CURRENCY LOAN" means any Offshore Rate Loan
denominated in an Offshore Currency.
"OFFSHORE CURRENCY LOAN SUBLIMIT" means $15,000,000.
"OFFSHORE RATE" means, for any Interest Period, with
respect to Offshore Rate Loans comprising part of the same Borrowing,
the rate of interest per annum (rounded upward to the next 1/100th of
1%) determined by the Agent as follows:
Offshore Rate = LIBOR
----------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"EURODOLLAR RESERVE PERCENTAGE" means for any day for any
Interest Period the maximum reserve percentage (expressed
as a decimal, rounded upward to the next 1/100th of 1%) in
effect on such day (whether or not applicable to any
Lender) under regulations issued from time to time by the
FRB for determining the maximum reserve requirement
(including any emergency, supplemental or other marginal
reserve requirement) with respect to Eurocurrency funding
(currently referred to as "Eurocurrency liabilities"); and
"LIBOR" means the rate of interest per annum
determined by the Co-Administrative Agent as the rate at
which deposits in the Applicable Currency in the
approximate amount of the amount of the Loan to be made or
continued as, or converted into, an Offshore Rate Loan by
the Co-Administrative Agent and having a maturity
comparable to such Interest Period would be offered by ABN
AMRO's London Branch (or such other office as may be
designated for such purpose by LaSalle), to major banks in
the London interbank market at their request at
approximately 11:00 a.m. (London time) two Business Days
prior to the commencement of such Interest Period.
The Offshore Rate shall be adjusted automatically as to
all Offshore Rate Loans then outstanding as of the effective date of
any change in the Eurodollar Reserve Percentage.
"OFFSHORE RATE LOAN" means a Loan that bears interest
based on the Offshore Rate and may be an Offshore Currency Loan or a
Loan denominated in Dollars.
<PAGE>
"ORGANIZATION DOCUMENTS" means, for any corporation, the
certificate or articles of incorporation, the bylaws, any certificate
of determination or instrument relating to the rights of preferred
shareholders of such corporation, any shareholder rights agreement,
and all applicable resolutions of the board of directors (or any
committee thereof) of such corporation.
"OTHER TAXES" means any present or future stamp, court or
documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or from
the execution, delivery, performance, enforcement or registration of,
or otherwise with respect to, this Agreement or any other Loan
Documents.
"OVERNIGHT RATE" means, for any day, the rate of interest
per annum at which overnight deposits in the Applicable Currency, in
the amount approximately equal to the amount with respect to which
such rate is being determined, would be offered for such day by ABN
AMRO's London Branch to major banks in the London or other applicable
offshore interbank market.
"PARTICIPANT" has the meaning specified in SUBSECTION
11.08(e).
"PBGC" means the Pension Benefit Guaranty Corporation, or
any Governmental Authority succeeding to any of its principal
functions under ERISA.
"PENSION PLAN" means a pension plan (as defined in Section
3(2) of ERISA) subject to Title IV of ERISA which the Company or any
ERISA Affiliate sponsors, maintains, or to which it makes, is making,
or is obligated to make contributions, or otherwise has any
liability, or in the case of a multiple employer plan (as described
in Section 4064(a) of ERISA) has made contributions at any time
during the immediately preceding five (5) plan years.
"PERMITTED LIENS" has the meaning specified in SECTION
8.01.
"PERMITTED SWAP OBLIGATIONS" means all obligations
(contingent or otherwise) of the Company or any Subsidiary existing
or arising under Swap Contracts, provided that each of the following
criteria is satisfied: (a) such obligations are (or were) entered
into by such Person in the ordinary course of business for the
purpose of directly mitigating risks associated with liabilities,
commitments or assets held or reasonably anticipated by such Person,
or changes in the value of securities issued by such Person in
conjunction with a securities repurchase program not otherwise
prohibited hereunder, and not for purposes of speculation or taking a
"market view", and (b) such Swap Contracts do not contain any
provision ("walk-away" provision) exonerating the non-defaulting
party from its obligation to make payments on outstanding
transactions to the defaulting party.
"PERSON" means an individual, partnership, corporation,
limited liability company, business trust, joint stock company,
trust, unincorporated association, joint venture or Governmental
Authority.
<PAGE>
"PLAN" means an employee benefit plan (as defined in
Section 3(3) of ERISA) which the Company or any ERISA Affiliate
sponsors or maintains or to which the Company or any ERISA Affiliate
makes, is making, or is obligated to make contributions or otherwise
has any liability and includes any Pension Plan.
"PROPERTY" means any interest in any kind of property or
asset, whether real, personal or mixed, and whether tangible or
intangible.
"PRO RATA SHARE" means, as to any Lender, (a) at any time
at which the Aggregate Commitment remains outstanding, the percentage
equivalent (expressed as a decimal, rounded to the ninth decimal
place) at such time of such Lender's Commitment in respect of all
Loans divided by the Aggregate Commitment, and (b) after the
termination of the Aggregate Commitment, the percentage equivalent
(expressed as a decimal, rounded to the ninth decimal place) at such
time of the principal amount of such Lender's outstanding Loans
(including such Lender's ratable share of outstanding Swing Line
Loans and L/C Obligations) divided by the aggregate principal amount
of the outstanding Loans and L/C Obligations of all of the Lenders.
"RATE SWAP DOCUMENTS" means, collectively, all Swap
Contracts entered into between the Company and any Lender in respect
of any portion of the Obligations.
"RENTAL EXPENSE" means, for any period, the sum of (a) all
store rental payments, (b) all common area maintenance payments and
(c) all real estate taxes paid by the Company and its Subsidiaries.
"REPORTABLE EVENT" means, any of the events set forth
in Section 4043(c) of ERISA or the regulations thereunder, other
than any such event for which the 30-day notice requirement under
ERISA has been waived in regulations issued by the PBGC.
"REQUIRED LENDERS" means at any time Lenders then holding
at least 51% of the Aggregate Commitment (or if the Aggregate
Commitment has been terminated, then the aggregate principal amount
outstanding of Revolving Loans and Swing Line Loans, plus the
outstanding amount of L/C Obligations).
"REQUIREMENT OF LAW" means, as to any Person, any law
(statutory or common), treaty, rule or regulation or determination
of an arbitrator or of a Governmental Authority, in each case
applicable to or binding upon the Person or any of its property or
to which the Person or any of its property is subject.
"RESPONSIBLE OFFICER" means the chief financial officer
of the Company or any other officer having substantially the same
authority and responsibility.
"REVOLVING LOAN" has the meaning specified in SECTION
2.01.
"SAME DAY FUNDS" means (a) with respect to disbursements
and payments in Dollars, immediately available funds, and (b) with
respect to disbursements and
<PAGE>
payments in an Offshore Currency, same day or other funds as may
be determined by the Agent to be customary in the place of
disbursement or payment for the settlement of international
banking transactions in the relevant Offshore Currency.
"SEC" means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal functions.
"SOLVENT" means, when used with respect to a Person, that
(a) the fair saleable value of the assets of such Person is in excess
of the total amount of the present value of its liabilities
(including for purposes of this definition all liabilities (including
loss reserves as determined by such Person), whether or not reflected
on a balance sheet prepared in accordance with GAAP and whether
direct or indirect, fixed or contingent, secured or unsecured,
disputed or undisputed), (b) such Person is able to pay its debts or
obligations in the ordinary course as they mature and (c) such Person
does not have unreasonably small capital to carry out its business as
conducted and as proposed to be conducted. "SOLVENCY" shall have a
correlative meaning.
"SPECIFIED ACQUISITION DEBT" means Indebtedness of a
Person that was the subject of an Acquisition by the Company or any
Subsidiary in an aggregate amount not to exceed $5,000,000 at any one
time outstanding, (a) which remains outstanding no more than 30 days
after the date on which such Acquisition was consummated, (b) which
is the subject of a default under the terms thereof solely as a
result of the consummation of such Acquisition and (c) which has not
been accelerated or otherwise become immediately repayable and in
respect of which the lenders thereof have not exercised any available
remedies.
"SPOT RATE" for a currency means the rate quoted by
LaSalle as the spot rate for the purchase by LaSalle of such
currency with another currency through its FX Trading Office at
approximately 8:00 a.m. (Chicago time) on the date two Banking
Days prior to the date as of which the foreign exchange
computation is made.
"SUBSIDIARY" of a Person means any corporation,
association, partnership, limited liability company, joint venture or
other business entity of which more than 50% of the voting stock,
membership interests or other equity interests (in the case of
Persons other than corporations), is owned or controlled directly or
indirectly by the Person, or one or more of the Subsidiaries of the
Person, or a combination thereof. Unless the context otherwise
clearly requires, references herein to a "Subsidiary" refer to a
Subsidiary of the Company.
"SUBSIDIARY GUARANTY" means that certain Subsidiary
Guaranty dated as of the date hereof by certain of the Subsidiaries
in favor of the Agent, the Co-Administrative Agent and the Lenders.
"SURETY INSTRUMENTS" means all letters of credit
(including standby and commercial), banker's acceptances, bank
guaranties, shipside bonds, performance bonds, surety bonds and
similar instruments.
<PAGE>
"SWAP CONTRACT" means any agreement, whether or not in
writing, relating to any transaction that is a rate swap, basis swap,
forward rate transaction, commodity swap, commodity option, equity or
equity index swap or option, bond, note or bill option, interest rate
option, forward foreign exchange transaction, cap, collar or floor
transaction, currency swap, cross-currency rate swap, swaption,
currency option or any other, similar transaction (including any
option to enter into any of the foregoing) or any combination of the
foregoing, and, unless the context otherwise clearly requires, any
master agreement relating to or governing any or all of the
foregoing.
"SWAP TERMINATION VALUE" means, in respect of any one or
more Swap Contracts, after taking into account the effect of any
legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap Contracts
have been closed out and termination value(s) determined in
accordance therewith, such termination value(s), and (b) for any date
prior to the date referenced in clause (a) the amount(s) determined
as the mark-to-market value(s) for such Swap Contracts, as determined
by the Company based upon one or more mid-market or other readily
available quotations provided by any recognized dealer in such Swap
Contracts (which may include any Lender).
"SWING LINE COMMITMENT" means at any time, the obligation
of the Swing Line Lender to make Swing Line Loans pursuant to SECTION
2.05.
"SWING LINE LENDER" means LaSalle, in its capacity as
provider of the Swing Line Loans.
"SWING LINE LOAN" means a Loan made by the Swing Line
Lender.
"TAXES" means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, fees, withholdings or
similar charges, and all liabilities with respect thereto, excluding,
in the case of each Lender, the Agent and the Co-Administrative
Agent, respectively, taxes imposed on or measured by its net income
by the jurisdiction (or any political subdivision thereof) under the
laws of which such Lender, the Agent or the Co-Administrative Agent,
as the case may be, is organized or maintains a Lending Office.
"TERMINATION DATE" means the earlier to occur of:
(a) July 30, 2002; and
(b) the date on which the Aggregate Commitment
terminates in accordance with the provisions of this
Agreement.
A "TYPE" of Loan means its status as either a Base Rate
Loan or an Offshore Rate Loan.
<PAGE>
"UNFUNDED PENSION LIABILITY" means the excess of a Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the
current value of that Plan's assets, determined in accordance with
the assumptions used for funding the Pension Plan pursuant to Section
412 of the Code for the applicable plan year.
"UNITED STATES" and "U.S." each means the United States
of America.
"WHOLLY-OWNED SUBSIDIARY" means any corporation,
association, partnership, limited liability company, joint venture
or other business entity in which (other than directors'
qualifying shares required by law) 100% of the equity interests of
each class having ordinary voting power, and 100% of the equity
interests of every other class, in each case, at the time as of
which any determination is being made, is owned, beneficially and
of record, by the Company, or by one or more of the other
Wholly-Owned Subsidiaries, or both.
"YEAR 2000 PROBLEM" has the meaning specified in
SUBSECTION 5.01(i).
1.02 OTHER INTERPRETIVE PROVISIONS. (a) The meanings of defined
terms are equally applicable to the singular and plural forms of the defined
terms.
(b) The words "hereof", "herein", "hereunder" and
similar words refer to this Agreement as a whole and not to any particular
provision of this Agreement; and subsection, Section, Schedule and Exhibit
references are to this Agreement unless otherwise specified.
(c) (i) The term "documents" includes any and all
instruments, documents, agreements, certificates, indentures, notices
and other writings, however evidenced.
(ii) The term "including" is not limiting and
means "including without limitation."
(iii) In the computation of periods of time
from a specified date to a later specified date, the word "from"
means "from and including"; the words "to" and "until" each mean
"to but excluding", and the word "through" means "to and
including."
(iv) The term "property" includes any kind of
property or asset, real, personal or mixed, tangible or intangible.
(d) Unless otherwise expressly provided herein,
(i) references to agreements (including this Agreement) and other contractual
instruments shall be deemed to include all subsequent amendments and other
modifications thereto, but only to the extent such amendments and other
modifications are not prohibited by the terms of any Loan Document, and (ii)
references to any statute or regulation are to be construed as including all
statutory and regulatory provisions consolidating, amending, replacing,
supplementing or interpreting the statute or regulation.
<PAGE>
(e) The captions and headings of this Agreement
are for convenience of reference only and shall not affect the interpretation
of this Agreement.
(f) This Agreement and other Loan Documents may
use several different limitations, tests or measurements to regulate the same
or similar matters. All such limitations, tests and measurements are
cumulative and shall each be performed in accordance with their terms. Unless
otherwise expressly provided, any reference to any act of the Agent, the
Co-Administrative Agent or the Lenders by way of consent, approval or waiver
shall be deemed modified by the phrase "in its/their sole discretion".
(g) This Agreement and the other Loan Documents
are the result of negotiations among and have been reviewed by counsel to the
Agent, the Co-Administrative Agent, the Company and the other parties, and
are the products of all parties. Accordingly, they shall not be construed
against the Lenders, the Agent or the Co-Administrative Agent merely because
of the Agent's, the Co-Administrative Agent's or the Lenders' involvement in
their preparation.
1.03 ACCOUNTING PRINCIPLES. (a) Unless the context otherwise
clearly requires, all accounting terms not expressly defined herein shall be
construed, and all financial computations required under this Agreement shall
be made, in accordance with GAAP, consistently applied.
(b) References herein to "fiscal year" and
"fiscal quarter" refer to such fiscal periods of the Company.
(c) In the event that any changes in GAAP occur
after the date of this Agreement and such changes result in a material
variation in the method of calculation of financial covenants or other terms
of this Agreement, then the Company, the Agent, the Co-Administrative Agent,
and the Lenders agree to amend such provisions of this Agreement so as to
equitably reflect such changes so that the criteria for evaluating the
Company's financial condition will be the same after such changes as if such
changes had not occurred.
1.04 CURRENCY EQUIVALENTS GENERALLY. For all purposes of this
Agreement (but not for purposes of the preparation of any financial
statements delivered pursuant hereto), the equivalent in any Offshore
Currency or other currency of an amount in Dollars, and the equivalent in
Dollars of an amount in any Offshore Currency or other currency, shall be
determined at the Spot Rate.
ARTICLE II
THE CREDITS
2.01 AMOUNTS AND TERMS OF COMMITMENTS. Each Lender severally
agrees, on the terms and conditions set forth herein, to make loans to the
Company denominated in Dollars or in an Offshore Currency (each such loan, a
"REVOLVING LOAN") from time to time on any Business Day during the period
from the Closing Date to the Termination Date, in an aggregate principal
Dollar Equivalent amount not to exceed at any time outstanding the amount set
forth opposite
<PAGE>
such Lender's name on SCHEDULE 2.01 (such amount, as the same may be reduced
under SECTION 2.07 or as a result of one or more assignments under SECTION
11.08, the Lender's "COMMITMENT"); PROVIDED, HOWEVER, that, after giving
effect to any Borrowing of Revolving Loans, the Effective Amount of all
outstanding Loans and of all L/C Obligations, shall not at any time exceed
the Aggregate Commitment; PROVIDED FURTHER, that the Effective Amount of the
Revolving Loans of any Lender plus the participation of such Lender in the
Dollar Equivalent of the Effective Amount of all L/C Obligations and such
Lender's Pro Rata Share of any outstanding Swing Line Loans shall not at any
time exceed such Lender's Commitment; and PROVIDED, FURTHER, that after
giving effect to any Borrowing of Offshore Currency Loans, the Effective
Amount of all outstanding Offshore Currency Loans shall not exceed the
Offshore Currency Loan Sublimit. Within the limits of each Revolving Lender's
Commitment, and subject to the other terms and conditions hereof, the Company
may borrow under this SECTION 2.01, prepay under SECTION 2.08 and reborrow
under this SECTION 2.01.
2.02 LOAN ACCOUNTS. (a) The Loans made by each Lender and the
Letters of Credit Issued by the Issuer shall be evidenced by one or more
accounts or records maintained by such Lender or Issuer, as the case may be,
in the ordinary course of business. The accounts or records maintained by the
Co-Administrative Agent, the Issuer and each Lender shall be conclusive
absent manifest error of the amount of the Loans made by the Lenders to the
Company and the Letters of Credit Issued for the account of the Company, and
the interest and payments thereon. Any failure so to record or any error in
doing so shall not, however, limit or otherwise affect the obligation of the
Company hereunder to pay any amount owing with respect to the Loans or any
Letter of Credit.
(b) Upon the request of any Lender made through
the Co-Administrative Agent, the Loans made by such Lender may be evidenced
by one or more Notes, instead of or in addition to loan accounts. Each such
Lender shall record on the schedule annexed to its Note(s) the date, amount
and maturity of each Loan made by it and the amount and Applicable Currency
of each payment of principal made by the Company with respect thereto. Each
such Lender is irrevocably authorized by the Company to make such recordation
on its Note, and each Lender's record shall be conclusive absent manifest
error; PROVIDED, HOWEVER, that the failure of a Lender to make, or an error
in making, a notation thereon with respect to any Loan shall not limit or
otherwise affect the obligations of the Company hereunder or under any such
Note to such Lender.
2.03 PROCEDURE FOR BORROWING. (a) Each Borrowing (other than an
L/C Advance) shall be made upon the Company's irrevocable notice delivered to
the Co-Administrative Agent in the form of a Notice of Borrowing (which
notice must be received by the Co-Administrative Agent prior to 12:00 p.m.
(Chicago time) (i) three Business Days prior to the requested Borrowing Date,
in the case of Offshore Rate Loans denominated in Dollars, (ii) four Business
Days prior to the requested Borrowing Date, in the case of Offshore Currency
Loans, and (iii) on the requested Borrowing Date, in the case of Base Rate
Loans), specifying:
(A) the amount of the Borrowing, which
shall be in an aggregate minimum amount of $500,000 or any
multiple of $100,000 in excess thereof;
<PAGE>
(B) the requested Borrowing Date, which
shall be a Business Day;
(C) the Type of Loans comprising the Borrowing
and in the case of an Offshore Rate Loan, the Applicable Currency;
and
(D) with respect to Offshore Rate Loans, the
duration of the Interest Period applicable to such Loans included
in such notice. If the Notice of Borrowing fails to specify the
duration of the Interest Period for any Borrowing comprised of
Offshore Rate Loans, such Interest Period shall be one month;
PROVIDED, HOWEVER, that with respect to the Borrowing to be made on the
Closing Date, such Borrowing will consist of Base Rate Loans only.
(b) The Co-Administrative Agent will promptly
notify each Lender of its receipt of any Notice of Borrowing and of the
amount of such Lender's Pro Rata Share of that Borrowing.
(c) Each Lender will make the amount of its Pro Rata
Share of each Borrowing available to the Co-Administrative Agent for the
account of the Company at the Co-Administrative Agent's Payment Office on the
Borrowing Date requested by the Company in Same Day Funds and in the
requested currency (i) in the case of a Borrowing comprised of Loans in
Dollars, by 2:00 p.m. (Chicago time), and (ii) in the case of a Borrowing
comprised of Offshore Currency Loans, by such time as the Co-Administrative
Agent may specify. The proceeds of all such Loans will promptly thereafter be
made available to the Company by the Co-Administrative Agent at such office
by crediting the account of the Company on the books of LaSalle with the
aggregate of the amounts made available to the Co-Administrative Agent by the
Lenders and in like funds as received by the Co-Administrative Agent.
(d) After giving effect to any Borrowing or any
conversion or continuation of Loans pursuant to SECTION 2.04, unless the
Co-Administrative Agent shall otherwise consent, there may not be more than
10 different Interest Periods in effect.
(e) The Company hereby authorizes the Lenders and
the Co-Administrative Agent to accept Notices of Borrowing based on
telephonic notices made by any person or persons the Co-Administrative Agent
or any Lender in good faith believes to be acting on behalf of the Company.
The Company agrees to deliver promptly to the Co-Administrative Agent a
written confirmation of each telephonic notice, signed by a Responsible
Officer or an authorized designee. If the written confirmation differs in any
material respect from the action taken by the Co-Administrative Agent and the
Lenders, the records of the Co-Administrative Agent and the Lenders shall
govern absent manifest error.
2.04 CONVERSION AND CONTINUATION ELECTIONS. (a) The Company may,
upon irrevocable notice to the Co-Administrative Agent in accordance with
SUBSECTION 2.04(b):
<PAGE>
(i) elect, as of any Business Day, in the case of Base
Rate Loans, or as of the last day of the applicable Interest
Period, in the case of Offshore Rate Loans, to convert any such
Loans (or any part thereof in an amount not less than $500,000 or
that is in an integral multiple of $100,000 in excess thereof)
into Loans of any other Type; or
(ii) elect as of the last day of the applicable
Interest Period, to continue any Loans having Interest Periods
expiring on such day (or any part thereof in an amount not less
than $500,000, or that is in an integral multiple of $100,000 in
excess thereof);
PROVIDED, that if at any time the aggregate amount of Offshore Rate Loans
denominated in Dollars in respect of any Borrowing is reduced, by payment,
prepayment, or conversion of part thereof to be less than $500,000 such
Offshore Rate Loans denominated in Dollars shall automatically convert into
Base Rate Loans, and on and after such date the right of the Company to
continue such Loans as, and convert such Loans into, Offshore Rate Loans
shall terminate.
(b) The Company shall deliver a Notice of
Conversion/Continuation to be received by the Co-Administrative Agent not
later than 12:00 p.m. (Chicago time) at least (i) three Business Days in
advance of the Conversion/Continuation Date, if the Loans are to be converted
into or continued as Offshore Rate Loans in Dollars, (ii) four Business Days
in advance of the Conversion/Continuation Date, if the Loans are to be
converted into or continued as Offshore Currency Loans, and (iii) on the
Conversion/Continuation Date, if the Loans are to be converted into Base Rate
Loans, specifying:
(A) the proposed Conversion/Continuation Date;
(B) the aggregate amount of Loans to be converted
or continued;
(C) the Type of Loans resulting from the proposed
conversion or continuation and in the case of an Offshore
Rate Loan, the Applicable Currency; and
(D) other than in the case of conversions into Base
Rate Loans, the duration of the requested Interest Period.
(c) If upon the expiration of any Interest Period applicable to
Offshore Rate Loans denominated in Dollars, the Company has failed to select
timely a new Interest Period to be applicable to such Offshore Rate Loans, or
if any Default or Event of Default then exists, the Company shall be deemed
to have elected to convert such Offshore Rate Loans into Base Rate Loans
effective as of the expiration date of such Interest Period. If the Company
has failed to select a new Interest Period to be applicable to Offshore
Currency Loans prior to the fourth Business Day in advance of the expiration
date of the current Interest Period applicable thereto as provided in
SUBSECTION 2.04(b), or if any Default or Event of Default shall then exist,
subject to the provisions of SUBSECTION 2.06(d), the Company shall be deemed
to have elected to continue such Offshore Currency Loans on the basis of a
one-month Interest Period.
<PAGE>
(d) The Co-Administrative Agent will promptly notify each
Lender of its receipt of a Notice of Conversion/Continuation, or, if no
timely notice is provided by the Company, the Co-Administrative Agent will
promptly notify each Lender of the details of any automatic conversion. All
conversions and continuations shall be made ratably according to the
respective outstanding principal amounts of the Loans, with respect to which
the notice was given, held by each Lender.
(e) Unless the Required Lenders otherwise consent, during the
existence of a Default or Event of Default, the Company may not elect to have
a Loan in Dollars converted into or continued as an Offshore Rate Loan in
Dollars, or an Offshore Currency Loan continued on the basis of an Interest
Period exceeding one month.
(f) The Company hereby authorizes the Lenders and the
Co-Administrative Agent to accept Notices of Conversion/Continuation based on
telephonic notices made by any person or persons the Co-Administrative Agent
or any Lender in good faith believes to be acting on behalf of the Company.
The Company agrees to deliver promptly to the Co-Administrative Agent a
written confirmation of each telephonic notice, signed by a Responsible
Officer. If the written confirmation differs in any material respect from the
action taken by the Co-Administrative Agent and the Lenders, the records of
the Co-Administrative Agent and the Lenders shall govern absent manifest
error.
2.05 THE SWING LINE LOANS. (a) Subject to the terms and conditions
hereof, the Swing Line Lender agrees to make Swing Line Loans to the Company
denominated in Dollars from time to time prior to the Revolving Termination
Date in an aggregate principal amount at any one time outstanding not to
exceed $10,000,000; PROVIDED, that after giving effect to any such Swing Line
Loan, the Effective Amount of all Revolving Loans, Swing Line Loans and L/C
Obligations at such time would not exceed the Aggregate Commitment at such
time; PROVIDED, FURTHER, that notwithstanding SECTION 2.01, the aggregate
amount of the Revolving Loans and Swing Line Loans of the Swing Line Lender,
plus the participation of the Swing Line Lender in the Dollar Equivalent of
the Effective Amount of all L/C Obligations, may exceed LaSalle's Commitment
so long as the condition set forth in the previous proviso is satisfied.
Prior to the Termination Date, the Company may use the Swing Line Commitment
by borrowing, prepaying the Swing Line Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof. All
Swing Line Loans shall bear interest at the Base Rate and shall not be
entitled to be converted into Loans that bear interest at any other rate.
(b) The Company may borrow under the Swing Line Commitment on
any Business Day until the Termination Date; PROVIDED, that the Company shall
give the Swing Line Lender irrevocable written notice signed by a Responsible
Officer or an authorized designee (which notice must be received by the Swing
Line Lender prior to 3:00 p.m. (Chicago time)) with a copy to the
Co-Administrative Agent specifying the amount of the requested Swing Line
Loan, which shall be in a minimum amount of $100,000 or a whole multiple of
$100,000 in excess thereof. The proceeds of the Swing Line Loan will be made
available by the Swing Line Lender to the Company in immediately available
funds at the office of the Swing Line Lender by 4:00 p.m. (Chicago time) on
the date of such notice. The Company may at any time and from time to time,
prepay the Swing Line Loans, in whole or in part, without premium or penalty,
by
<PAGE>
notifying the Swing Line Lender prior to 3:00 p.m. (Chicago time) on any
Business Day of the date and amount of prepayment with a copy to the
Co-Administrative Agent. If any such notice is given, the amount specified in
such notice shall be due and payable on the date specified therein. Partial
prepayments shall be in an aggregate principal amount of $100,000 or a whole
multiple of $100,000 in excess thereof.
(c) If any Swing Line Loan shall remain outstanding at 11:00
a.m.(Chicago time) on the fifth day following the date of such Swing Line
Loan and if by such time on such fifth day the Co-Administrative Agent shall
have received neither (i) a Notice of Borrowing delivered by the Company
pursuant to SECTION 2.03 requesting that Revolving Loans be made pursuant to
SECTION 2.01 on the immediately succeeding Business Day in an amount at least
equal to the principal amount of such Swing Line Loan nor (ii) any other
notice satisfactory to the Co-Administrative Agent indicating the Company's
intent to repay such Swing Line Loan on or before the immediately succeeding
Business Day with funds obtained from other sources, then on such Business
Day the Swing Line Lender shall (and on any Business Day the Swing Line
Lender in its sole discretion may), on behalf of the Company (which hereby
irrevocably directs the Swing Line Lender to act on its behalf) request the
Co-Administrative Agent to notify each Lender to make a Base Rate Loan in an
amount equal to such Lender's Pro Rata Share of (A) in the case of such a
request which is required to be made, the amount of the relevant Swing Line
Loan and (B) in the case of such a discretionary request, the aggregate
principal amount of the Swing Line Loans outstanding on the date such notice
is given. Unless any of the events described in SUBSECTION 9.01(f) OR (g)
shall have occurred with respect to the Company (in which event the
procedures of paragraph (e) of this SECTION 2.05 shall apply) each Lender
shall make the proceeds of its Revolving Loan available to the
Co-Administrative Agent for the account of the Swing Line Lender at the
Co-Administrative Agent's Payment Office in funds immediately available prior
to 1:00 p.m. (Chicago time) on the Business Day next succeeding the date such
notice is given. The proceeds of such Revolving Loans shall be immediately
applied to repay the outstanding Swing Line Loans. Effective on the day such
Revolving Loans are made, the portion of the Swing Line Loans so paid shall
no longer be outstanding as Swing Line Loans and shall no longer be due under
the Swing Line Note. The Company shall pay to the Swing Line Lender, promptly
following the Swing Line Lender's demand, the amount of its outstanding Swing
Line Loans to the extent amounts received from the Lenders are not sufficient
to repay in full such outstanding Swing Line Loans.
(d) Notwithstanding anything herein to the contrary, the
Swing Line Lender (i) shall not be obligated to make any Swing Line Loan if
the conditions set forth in ARTICLE V have not been satisfied and (ii) shall
not make any requested Swing Line Loan if, prior to 11:00 a.m. (Chicago time)
on the date of such requested Swing Line Loan, it has received a written
notice from the Agent, the Co-Administrative Agent or any Lender directing it
not to make further Swing Line Loans because one or more of the conditions
specified in ARTICLE V are not then satisfied.
(e) If prior to the making of a Revolving Loan required to be
made by SUBSECTION 2.05(c) an Event of Default described in SUBSECTION
9.01(f) OR 9.01(g) shall have occurred and be continuing with respect to the
Company, each Lender will, on the date such
<PAGE>
Revolving Loan was to have been made pursuant to the notice described in
SUBSECTION 2.05(b), purchase an undivided participating interest in the
outstanding Swing Line Loans in an amount equal to its Pro Rata Share of the
aggregate principal amount of Swing Line Loans then outstanding. Each Lender
will immediately transfer to the Co-Administrative Agent for the benefit of
the Swing Line Lender, in immediately available funds, the amount of its
participation.
(f) Whenever, at any time after a Lender has purchased a
participating interest in a Swing Line Loan, the Swing Line Lender receives
any payment on account thereof, the Swing Line Lender will distribute to the
Co-Administrative Agent for delivery to each Lender its participating
interest in such amount (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Lender's
participating interest was outstanding and funded); PROVIDED, HOWEVER, that
in the event that such payment received by the Swing Line Lender is required
to be returned, such Lender will return to the Co-Administrative Agent for
delivery to the Swing Line Lender any portion thereof previously distributed
by the Swing Line Lender to it.
(g) Each Lender's obligation to make the Revolving Loans
referred to in SUBSECTION 2.05(c) and to purchase participating interests
pursuant to SUBSECTION 2.05(c) shall be absolute and unconditional and shall
not be affected by any circumstance, including, without limitation, (i) any
set-off, counterclaim, recoupment, defense or other right which such Lender
or the Company may have against the Swing Line Lender, the Company or any
other Person for any reason whatsoever, (ii) the occurrence or continuance of
a Default or an Event of Default, (iii) any adverse change in the condition
(financial or otherwise) of the Company, (iv) any breach of this Agreement or
any other Loan Document by the Company, any Subsidiary or any other Lender,
or (v) any other circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing.
2.06 UTILIZATION OF COMMITMENTS IN AN ALTERNATIVE CURRENCY.
(a) The Co-Administrative Agent will determine the Dollar
Equivalent amount with respect to any (i) Borrowing comprised of Alternative
Currency Loans as of the requested Borrowing Date, (ii) outstanding Offshore
Currency Loans as of the last Banking Day of each month, and (iii)
outstanding Offshore Currency Loans as of any redenomination date pursuant to
this SECTION 2.06 or SECTION 4.05 (each such date under clauses (i) through
(iii) a "COMPUTATION DATE"). Upon receipt of any Notice of Borrowing, the
Co-Administrative Agent will promptly notify each Revolving Lender thereof
and of the amount of such Lender's Pro Rata Share of the Borrowing. In the
case of a Borrowing comprised of Offshore Currency Loans, such notice will
provide the approximate amount of each Lender's Pro Rata Share of the
Borrowing, and the Co-Administrative Agent will, upon the determination of
the Dollar Equivalent amount of the Borrowing as specified in the Notice of
Borrowing, promptly notify each Lender of the exact amount of such Lender's
Pro Rata Share of the Borrowing.
(b) In the case of a proposed Borrowing comprised of Offshore
Currency Loans, the Lenders shall be under no obligation to make Offshore
Currency Loans in the requested Offshore Currency as part of such Borrowing if
the Co-Administrative Agent has received notice from any of the Lenders by 12:00
p.m. (Chicago time) four Business Days prior
<PAGE>
to the day of such Borrowing that such Lender cannot provide Loans in the
requested Offshore Currency, in which event the Co-Administrative Agent will
give notice to the Company no later than 9:30 a.m. (Chicago time) on the
third Business Day prior to the requested date of such Borrowing that the
Borrowing in the requested Offshore Currency is not then available, and
notice thereof also will be given promptly by the Co-Administrative Agent to
the Lenders. If the Co-Administrative Agent shall have so notified the
Company that any such Borrowing in a requested Offshore Currency is not then
available, the Company may, by notice to the Co-Administrative Agent not
later than 10:30 a.m. (Chicago time) three Business Days prior to the
requested date of such Borrowing, withdraw the Notice of Borrowing relating
to such requested Borrowing. If the Company does so withdraw such Notice of
Borrowing, the Borrowing requested therein shall not occur and the
Co-Administrative Agent will promptly so notify each Lender. If the Company
does not so withdraw such Notice of Borrowing, the Co-Administrative Agent
will promptly so notify each Lender and such Notice of Borrowing shall be
deemed to be a Notice of Borrowing that requests a Borrowing comprised of
Base Rate Loans in an aggregate amount equal to the amount of the originally
requested Borrowing as expressed in Dollars in the Notice of Borrowing, and
in such notice by the Co-Administrative Agent to each Lender the
Co-Administrative Agent will state such aggregate amount of such Borrowing in
Dollars and such Lender's Pro Rata Share thereof.
(c) In the case of a proposed continuation of Offshore
Currency Loans for an additional Interest Period pursuant to SECTION 2.04,
the Lenders shall be under no obligation to continue such Offshore Currency
Loans if the Co-Administrative Agent has received notice from any of the
Lenders by 4:00 p.m. (Chicago time) three Business Days prior to the day of
such continuation that such Lender cannot continue to provide Loans in the
Offshore Currency, in which event the Co-Administrative Agent will give
notice to the Company not later than 9:00 a.m. (Chicago time) on the second
Business Day prior to the requested date of such continuation that the
continuation of such Offshore Currency Loans in the Offshore Currency is not
then available, and notice thereof also will be given promptly by the
Co-Administrative Agent to the Lenders. If the Co-Administrative Agent shall
have so notified the Company that any such continuation of Offshore Currency
Loans is not then available, any Notice of Continuation/Conversion with
respect thereto shall be deemed withdrawn and such Offshore Currency Loans
shall be redenominated into Base Rate Loans in Dollars with effect from the
last day of the Interest Period with respect to any such Offshore Currency
Loans. The Co-Administrative Agent will promptly notify the Company and the
Lenders of any such redenomination and in such notice by the
Co-Administrative Agent to each Lender the Co-Administrative Agent will state
the aggregate Dollar Equivalent amount of the redenominated Offshore Currency
Loans as of the Computation Date with respect thereto and such Lender's Pro
Rata Share thereof.
(d) Notwithstanding anything herein to the contrary, during
the existence of a Default or an Event of Default, upon the request of the
Required Lenders, all or any part of any outstanding Offshore Currency Loans
shall be redenominated and converted into Base Rate Loans in Dollars with
effect from the last day of the Interest Period with respect to any such
Offshore Currency Loans. The Co-Administrative Agent will promptly notify the
Company of any such redenomination and conversion request.
<PAGE>
(e) The Company shall be entitled to request that Revolving
Loans hereunder also be permitted to be made in any other lawful currency
constituting a eurocurrency (other than Dollars), in addition to the
eurocurrencies specified in the definition of "Offshore Currency" herein,
that in the opinion of the Required Lenders is at such time freely traded in
the offshore interbank foreign exchange markets and is freely transferable
and freely convertible into Dollars (an "AGREED ALTERNATIVE CURRENCY"). The
Company shall deliver to the Co-Administrative Agent any request for
designation of an Agreed Alternate Currency in accordance with SECTION 11.02,
to be received by the Co-Administrative Agent not later than 11:00 a.m.
(Chicago time) at least ten Business Days in advance of the date of any
Borrowing hereunder proposed to be made in such Agreed Alternate Currency.
Upon receipt of any such request the Co-Administrative Agent will promptly
notify the Lenders thereof, and each Lender will use its best efforts to
respond to such request within two Business Days of receipt thereof and any
failure to respond in such time period shall be deemed to be a rejection
thereof. Each Lender may grant or accept such request in its sole discretion.
The Co-Administrative Agent will promptly notify the Company of the
acceptance or rejection of any such request.
2.07 VOLUNTARY TERMINATION OR REDUCTION OF REVOLVING LOAN
COMMITMENTS. (a) The Company may, upon not less than five Business Days'
prior notice to the Agent and the Co-Administrative Agent, terminate the
Commitments, or permanently reduce the Commitments by an aggregate minimum
amount of $5,000,000 or any multiple of $1,000,000 in excess thereof; UNLESS,
after giving effect thereto and to any prepayments of Loans made on the
effective date thereof, (a) the then outstanding Dollar Equivalent Effective
Amount of all Revolving Loans, Swing Line Loans and L/C Obligations together
would exceed the amount of the Aggregate Commitment then in effect, (b) the
Effective Amount of all L/C Obligations then outstanding would exceed the L/C
Commitment or (c) the Effective Amount of all Offshore Currency Loans would
exceed the Offshore Currency Loan Sublimit. Once reduced in accordance with
this Section, the Commitments may not be increased. Any reduction of the
Commitments shall be applied to each Lender according to its Pro Rata Share.
If and to the extent specified by the Company in the notice to the Agent and
the Co-Administrative Agent, some or all of the reduction in the Aggregate
Commitment shall be applied to reduce the L/C Commitment and/or the Offshore
Currency Loan Sublimit. All accrued commitment fees and letter of credit fees
to, but not including, the effective date of any reduction or termination of
Commitments, shall be paid on the effective date of such reduction or
termination.
(b) At no time shall the Swing Line Commitment exceed the
Aggregate Commitment, and any reduction of the Aggregate Commitment which
reduces the Aggregate Commitment below the then-current amount of the Swing
Line Commitment shall result in an automatic corresponding reduction of the
Swing Line Commitment to the amount of the Aggregate Commitment, as so
reduced, without any action on the part of the Swing Line Lender. At no time
shall the Swing Line Commitment exceed the Commitment of the Swing Line
Lender, and any reduction of the Aggregate Commitment which reduces the
Commitment of the Swing Line Lender below the then-current amount of the
Swing Line Commitment shall result in an automatic corresponding reduction of
the Swing Line Commitment to the amount of the Commitment of the Swing Line
Lender, as so reduced, without any action on the part of the Swing Line
Lender.
<PAGE>
2.08 PREPAYMENTS. (a) Subject to SECTION 4.04, the Company may, at
any time or from time to time, upon not less than four (4) Business Days'
irrevocable notice to the Co-Administrative Agent in the case of Offshore
Rate Loans, and not later than 12:00 p.m. (Chicago time) on the prepayment
date, in the case of Base Rate Loans, prepay Revolving Loans ratably among
the Lenders in whole or in part, in minimum Dollar Equivalent amounts of
$500,000 or any Dollar Equivalent multiple of $100,000 in excess thereof.
Such notice of prepayment shall specify the date and amount of such
prepayment and whether such prepayment is of Base Rate Loans or Offshore Rate
Loans, or any combination thereof, and the Applicable Currency. Such notice
shall not thereafter be revocable by the Company and the Co-Administrative
Agent will promptly notify each Lender of its receipt of any such notice, and
of such Lender's Pro Rata Share of such prepayment. If such notice is given
by the Company, the Company shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified
therein, together, in the case of Offshore Rate Loans, with accrued interest
to each such date on the amount prepaid and any amounts required pursuant to
SECTION 4.04.
(b) Subject to SECTION 4.04, if on any Computation Date the
Co-Administrative Agent shall have determined that the Dollar Equivalent
Effective Amount of all Loans then outstanding exceeds the combined
Commitments of the Lenders by more than $250,000 due to a change in
applicable rates of exchange between Dollars and the Offshore Currency, then
the Co-Administrative Agent may and at the direction of the Required Lenders
shall give notice to the Company that a prepayment is required under this
Section, and the Company agrees thereupon to promptly (but in no event later
than three (3) Business Days following receipt of such notice) make
prepayments of Loans such that, after giving effect to all such prepayments,
the Effective Amount of all Loans plus the Effective Amount of L/C
Obligations does not exceed the combined Commitments.
(c) Subject to SECTION 4.04, if on any date the Effective
Amount of all Revolving Loans and Swing Line Loans then outstanding plus the
Effective Amount of all L/C Obligations exceeds the Aggregate Commitment, the
Company shall immediately, and without notice or demand, prepay the
outstanding principal amount of the Revolving Loans and L/C Advances by an
amount equal to the applicable excess.
2.09 REPAYMENT. The Company shall repay to the Lenders on the
Termination Date the aggregate principal amount of Revolving Loans
outstanding on such date.
2.10 INTEREST. (a) Each Revolving Loan shall bear interest on the
outstanding principal amount thereof from the applicable Borrowing Date at a
rate per annum equal to (i) the Offshore Rate or the Base Rate, as the case may
be (and subject to the Company's right to convert to other Types of Loans under
SECTION 2.04), PLUS (ii) in the case of Offshore Rate Loans, the Applicable
Margin.
(b) Interest on each Loan shall be paid in arrears on each
Interest Payment Date. Interest on Base Rate Loans shall also be paid on the
date of any payment (including prepayment) in full of all Loans hereunder.
Interest on Offshore Rate Loans shall also be paid on the date of any
prepayment of Loans under SECTION 2.08 (including prepayment) in full thereof.
<PAGE>
During the existence of any Event of Default, interest on all Loans shall be
paid on demand of the Agent or the Co-Administrative Agent at the request or
with the consent of the Required Lenders.
(c) Notwithstanding SUBSECTION 2.10(a), while any Event of
Default exists or after acceleration, the Company shall pay interest (after
as well as before entry of judgment thereon to the extent permitted by law)
on the amount of all outstanding Obligations, at a rate per annum which is
determined by adding 2% per annum to the applicable interest rate otherwise
then in effect for such Loans; PROVIDED, HOWEVER, that on and after the
expiration of any Interest Period applicable to any Offshore Rate Loan
outstanding on the date of occurrence of such Event of Default or
acceleration, the principal amount of such Loan shall, during the
continuation of such Event of Default or after acceleration, bear interest at
a rate per annum equal to the Base Rate plus the Applicable Margin plus 2%.
(d) Anything herein to the contrary notwithstanding, the
obligations of the Company to any Lender hereunder shall be subject to the
limitation that payments of interest shall not be required for any period for
which interest is computed hereunder, to the extent (but only to the extent)
that contracting for or receiving such payment by such Lender would be
contrary to the provisions of any law applicable to such Lender limiting the
highest rate of interest that may be lawfully contracted for, charged or
received by such Lender, and in such event the Company shall pay such Lender
interest at the highest rate permitted by applicable law.
2.11 FEES. In addition to certain fees described in SECTION 3.08:
(a) AGENCY FEES. The Company shall pay such fees to (i) the
Agent and the Arranger as are required by the letter agreement between the
Company and the Arranger and the Agent dated April 16, 1999 and (ii) the
Co-Administrative Agent as are required by the letter agreement between the
Company and the Co-Administrative Agent dated July 29, 1999 (collectively,
the "FEE LETTERS").
(b) COMMITMENT FEES. The Company shall pay to the
Co-Administrative Agent for the account of each Lender a commitment fee on
the average daily unused portion of such Lender's Commitment, computed on a
quarterly basis in arrears on the last Business Day of each calendar quarter
based upon the daily utilization for that quarter as calculated by the
Co-Administrative Agent, equal to the Applicable Commitment Fee Percentage.
For purposes of calculating utilization under this subsection, the
Commitments shall be deemed used to the extent of the Effective Amount of
Revolving Loans then outstanding, plus the Effective Amount of L/C
Obligations then outstanding and shall not be deemed used by a Lender's Pro
Rata Share of Swing Line Loans. Such commitment fee shall accrue from the
date hereof to the Termination Date and shall be due and payable quarterly in
arrears on the last Business Day of each calendar quarter commencing on
September 30, 1999 through the Termination Date, with the final payment to be
made on the Termination Date; PROVIDED that, in connection with any reduction
or termination of Commitments under SECTION 2.07, the accrued commitment fee
calculated for the period ending on such date shall also be paid on the date
of such reduction or termination, with the following quarterly payment being
calculated on the basis of the period from such reduction or termination date
to such quarterly payment date. The commitment fees provided in this
<PAGE>
subsection shall accrue at all times after the above-mentioned commencement
date, including at any time during which one or more conditions in ARTICLE V
are not met.
2.12 COMPUTATION OF FEES AND INTEREST. (a) All computations of
interest for Base Rate Loans when the Base Rate is determined by LaSalle's
"reference rate" shall be made on the basis of a year of 365 or 366 days, as
the case may be, and actual days elapsed. All other computations of fees and
interest shall be made on the basis of a 360-day year and actual days elapsed
(which results in more interest being paid than if computed on the basis of a
365/366-day year); PROVIDED, that computations of interest for Alterative
Currency Loans will be made on the basis of a year of 365 or 366 days, as the
case may be, and actual days elapsed if that is the market standard for the
applicable Offshore Currency. Interest and fees shall accrue during each
period during which interest or such fees are computed from the first day
thereof to the last day thereof.
(b) For purposes of determining utilization of each Lender's
Commitment in order to calculate the commitment fee due under SUBSECTION
2.11(b) and whether or not the utilization-based additions to the Base Rate
and the Applicable Margin are applicable, the amount of any outstanding
Revolving Loan which is an Offshore Currency Loan on any date shall be
determined based upon the Dollar Equivalent amount as of the most recent
Computation Date with respect to such Offshore Currency Loan.
(c) Each determination of an interest rate or a Dollar
Equivalent amount by the Co-Administrative Agent shall be conclusive and
binding on the Company and the Lenders in the absence of manifest error. The
Co-Administrative Agent will, at the request of the Company or any Lender,
deliver to the Company or the Lender, as the case may be, a statement showing
the quotations used by the Co-Administrative Agent in determining any
interest rate or Dollar Equivalent amount.
2.13 PAYMENTS BY THE COMPANY.
(a) All payments to be made by the Company shall be made
without set-off, recoupment or counterclaim. Except as otherwise expressly
provided herein, all payments by the Company shall be made to the
Co-Administrative Agent for the account of the Lenders at the
Co-Administrative Agent's Payment Office, and, with respect to principal of,
interest on, and any other amounts relating to, any Offshore Currency Loan,
shall be made in the Offshore Currency in which such Loan is denominated or
payable, and, with respect to all other amounts payable hereunder, shall be
made in Dollars. Such payments shall be made in Same Day Funds, and (i) in
the case of Offshore Currency payments, no later than such time on the dates
specified herein as may be determined by the Co-Administrative Agent to be
necessary for such payment to be credited on such date in accordance with
normal banking procedures in the place of payment, and (ii) in the case of
any Dollar payments, no later than 11:00 a.m. (Chicago time) on the date
specified herein. The Co-Administrative Agent will promptly distribute to
each Lender its Pro Rata Share (or other applicable share as expressly
provided herein) of such principal, interest, fees or other amounts, in like
funds as received. Any payment which is received by the Co-Administrative
Agent later than 11:00 a.m. (Chicago time) or later than the time specified
by the Co-Administrative Agent as provided in clause (i) above (in the case
of Offshore Currency
<PAGE>
payments), shall be deemed to have been received on the following Business
Day and any applicable interest or fee shall continue to accrue.
(b) Subject to the provisions set forth in the definition of
"Interest Period" herein, whenever any payment is due on a day other than a
Business Day, such payment shall be made on the following Business Day, and
such extension of time shall in such case be included in the computation of
interest or fees, as the case may be.
(c) Unless the Co-Administrative Agent receives notice from
the Company prior to the date on which any payment is due to the Lenders that
the Company will not make such payment in full as and when required, the
Agent may assume that the Company has made such payment in full to the
Co-Administrative Agent on such date in Same Day Funds and the
Co-Administrative Agent may (but shall not be so required), in reliance upon
such assumption, distribute to each Lender on such due date an amount equal
to the amount then due such Lender. If and to the extent the Company has not
made such payment in full to the Co-Administrative Agent, each Lender shall
repay to the Co-Administrative Agent on demand such amount distributed to
such Lender, together with interest thereon at the Federal Funds Rate or, in
the case of a payment in an Offshore Currency, the Overnight Rate, for each
day from the date such amount is distributed to such Lender until the date
repaid.
2.14 PAYMENTS BY THE LENDERS TO THE CO-ADMINISTRATIVE AGENT. (a)
Unless the Co-Administrative Agent receives notice from a Lender on or prior
to the Closing Date or, with respect to any Borrowing after the Closing Date,
at least one Business Day prior to the date of such Borrowing, that such
Lender will not make available as and when required hereunder to the
Co-Administrative Agent for the account of the Company the amount of that
Lender's Pro Rata Share of the Borrowing, the Co-Administrative Agent may
assume that each Lender has made such amount available to the
Co-Administrative Agent in Same Day Funds on the Borrowing Date and the Agent
may (but shall not be so required), in reliance upon such assumption, make
available to the Company on such date a corresponding amount. If and to the
extent any Lender shall not have made its full amount available to the
Co-Administrative Agent in Same Day Funds and the Co-Administrative Agent in
such circumstances has made available to the Company such amount, that Lender
shall on the Business Day following such Borrowing Date make such amount
available to the Co-Administrative Agent, together with interest at the
Federal Funds Rate, or, in the case of a payment in an Offshore Currency, the
Overnight Rate, for each day during such period. A notice of the
Co-Administrative Agent submitted to any Lender with respect to amounts owing
under this subsection (a) shall be conclusive absent manifest error. If such
amount is so made available, such payment to the Co-Administrative Agent
shall constitute such Lender's Loan on the date of Borrowing for all purposes
of this Agreement. If such amount is not made available to the
Co-Administrative Agent on the Business Day following the Borrowing Date, the
Co-Administrative Agent will notify the Company of such failure to fund and,
upon demand by the Co-Administrative Agent, the Company shall pay such amount
to the Co-Administrative Agent for the Co-Administrative Agent's account,
together with interest thereon for each day elapsed since the date of such
Borrowing, at a rate per annum equal to the interest rate applicable at the
time to the Loans comprising such Borrowing.
<PAGE>
(b) The failure of any Lender to make any Loan on any
Borrowing Date shall not relieve any other Lender of any obligation hereunder
to make a Loan on such Borrowing Date, but no Lender shall be responsible for
the failure of any other Lender to make the Loan to be made by such other
Lender on any Borrowing Date.
2.15 SHARING OF PAYMENTS, ETC. If, other than as expressly
provided elsewhere herein, any Lender shall obtain on account of the Loans
made by it any payment (whether voluntary, involuntary, through the exercise
of any right of set-off, or otherwise) in excess of its ratable share (or
other share contemplated hereunder), such Lender shall immediately (a) notify
the Co-Administrative Agent of such fact, and (b) purchase from the other
Lenders such participations in the Loans made by them as shall be necessary
to cause such purchasing Lender to share the excess payment pro rata with
each of them; PROVIDED, HOWEVER, that if all or any portion of such excess
payment is thereafter recovered from the purchasing Lender, such purchase
shall to that extent be rescinded and each other Lender shall repay to the
purchasing Lender the purchase price paid therefor, together with an amount
equal to such paying Lender's ratable share (according to the proportion of
(i) the amount of such paying Lender's required repayment to (ii) the total
amount so recovered from the purchasing Lender) of any interest or other
amount paid or payable by the purchasing Lender in respect of the total
amount so recovered. The Company agrees that any Lender so purchasing a
participation from another Lender may, to the fullest extent permitted by
law, exercise all its rights of payment (including the right of set-off, but
subject to SECTION 11.10) with respect to such participation as fully as if
such Lender were the direct creditor of the Company in the amount of such
participation. The Co-Administrative Agent will keep records (which shall be
conclusive and binding in the absence of manifest error) of participations
purchased under this Section and will in each case notify the Lenders
following any such purchases or repayments.
2.16 SUBSIDIARY GUARANTY. All obligations of the Company under
this Agreement and all other Loan Documents shall be unconditionally
guaranteed by the Guarantors pursuant to the Subsidiary Guaranty.
ARTICLE III
THE LETTERS OF CREDIT
3.01 THE LETTER OF CREDIT SUBFACILITY. (a) On the terms and
conditions set forth herein (i) the Issuer agrees, (A) from time to time on
any Business Day, during the period from the Closing Date to the day which is
five days prior to the Termination Date, to issue Letters of Credit for the
account of the Company and to amend or renew Letters of Credit previously
issued by it, in accordance with SUBSECTIONS 3.02(c) and 3.02(d), and (B) to
honor drafts under the Letters of Credit; and (ii) the Lenders severally
agree to participate in Letters of Credit Issued for the account of the
Company; PROVIDED, that the Issuer shall not be obligated to Issue, and no
Lender shall be obligated to participate in, any Letter of Credit if as of
the date of Issuance of such Letter of Credit (the "ISSUANCE DATE") (1) the
Effective Amount of all L/C Obligations plus the Effective Amount of all
Revolving Loans and of all Swing Line Loans exceeds the Aggregate Commitment,
(2) the participation of any Lender in the Effective Amount of all L/C
Obligations
<PAGE>
plus the Effective Amount of the Revolving Loans of such Lender and such
Lender's Pro Rata Share of any outstanding Swing Line Loans exceeds such
Lender's Commitment, or (3) the Effective Amount of L/C Obligations exceeds
the L/C Commitment. Within the foregoing limits, and subject to the other
terms and conditions hereof, the Company's ability to obtain Letters of
Credit shall be fully revolving, and, accordingly, the Company may, during
the foregoing period, obtain Letters of Credit to replace Letters of Credit
which have expired or which have been drawn upon and reimbursed.
(b) The Issuer is under no obligation to, and shall
not, Issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or
restrain the Issuer from Issuing such Letter of Credit, or any
Requirement of Law applicable to the Issuer or any request or
directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over the Issuer shall
prohibit, or request that the Issuer refrain from, the Issuance of
letters of credit generally or such Letter of Credit in particular
or shall impose upon the Issuer with respect to such Letter of
Credit any restriction, reserve or capital requirement (for which
the Issuer is not otherwise compensated hereunder) not in effect on
the Closing Date, or shall impose upon the Issuer any unreimbursed
loss, cost or expense which was not applicable on the Closing Date
and which the Issuer in good faith deems material to it;
(ii) the Issuer has received written notice from any
Revolving Lender, the Agent, the Co-Administrative Agent or the
Company, on or prior to the Business Day prior to the requested date
of Issuance of such Letter of Credit, that one or more of the
applicable conditions contained in ARTICLE V is not then satisfied;
(iii) the expiry date of any requested Letter of Credit
is (A) more than 360 days after the date of Issuance, unless the
Required Lenders have approved such expiry date in writing, or (B)
after the date which is five days prior to the Revolving Termination
Date, unless all of the Lenders have approved such expiry date in
writing;
(iv) the expiry date of any requested Letter of Credit
is prior to the maturity date of any financial obligation to be
supported by the requested Letter of Credit;
(v) any requested Letter of Credit does not provide
for drafts, or is not otherwise in form and substance acceptable to
the Issuer, or the Issuance of a Letter of Credit shall violate any
applicable policies of the Issuer; or
(vi) such Letter of Credit is in a face amount less
than $25,000, unless such amount is approved by the Agent and the
Issuer or is to be denominated in a currency other than Dollars.
<PAGE>
3.02 ISSUANCE, AMENDMENT AND RENEWAL OF LETTERS OF CREDIT. (a)
Each Letter of Credit shall be issued upon the irrevocable written request of
the Company received by the Issuer (with a copy sent by the Company to the
Co-Administrative Agent) at least three days (or such shorter time as the
Issuer may agree in a particular instance in its sole discretion) prior to
the proposed date of issuance. Each such request for issuance of a Letter of
Credit shall be by facsimile, confirmed immediately in an original writing,
in the form of an L/C Application (or such other form as shall be acceptable
to the Issuer), and shall specify in form and detail satisfactory to the
Issuer: (i) the proposed date of issuance of the Letter of Credit (which
shall be a Business Day); (ii) the face amount of the Letter of Credit; (iii)
the expiry date of the Letter of Credit; (iv) the name and address of the
beneficiary thereof; (v) the documents to be presented by the beneficiary of
the Letter of Credit in case of any drawing thereunder; (vi) the full text of
any certificate to be presented by the beneficiary in case of any drawing
thereunder; and (vii) such other matters as the Issuer may require.
(b) At least two Business Days prior to the Issuance of
any Letter of Credit (or such shorter time as the Agent may agree in a
particular instance in its sole discretion), the Issuer will confirm with the
Agent (by telephone or in writing) that the Agent has received a copy of the
L/C Application or L/C Amendment Application from the Company and, if not,
the Issuer will provide the Agent with a copy thereof. Unless the Issuer has
received notice on or before the Business Day immediately preceding the date
the Issuer is to issue a requested Letter of Credit from the Agent (A)
directing the Issuer not to issue such Letter of Credit because such issuance
is not then permitted under SUBSECTION 3.01(a) as a result of the limitations
set forth in clauses (1) through (3) thereof or SUBSECTION 3.01(b)(II); or
(B) that one or more conditions specified in ARTICLE V are not then
satisfied; then, subject to the terms and conditions hereof, the Issuer
shall, on the requested date, issue a Letter of Credit for the account of the
Company in accordance with the Issuer's usual and customary business
practices.
(c) From time to time while a Letter of Credit is
outstanding and prior to the Termination Date, the Issuer will, upon the
written request of the Company received by the Issuer (with a copy sent by
the Company to the Co-Administrative Agent) at least three days (or such
shorter time as the Issuer may agree in a particular instance in its sole
discretion) prior to the proposed date of amendment, amend any Letter of
Credit issued by it. Each such request for amendment of a Letter of Credit
shall be made by facsimile, confirmed immediately in an original writing,
made in the form of an L/C Amendment Application and shall specify in form
and detail satisfactory to the Issuer: (i) the Letter of Credit to be
amended; (ii) the proposed date of amendment of the Letter of Credit (which
shall be a Business Day); (iii) the nature of the proposed amendment; and
(iv) such other matters as the Issuer may require. The Issuer shall be under
no obligation to amend any Letter of Credit if: (A) the Issuer would have no
obligation at such time to issue such Letter of Credit in its amended form
under the terms of this Agreement; or (B) the beneficiary of any such letter
of Credit does not accept the proposed amendment to the Letter of Credit. The
Co-Administrative Agent will promptly notify the Lenders of the receipt by it
of any L/C Application or L/C Amendment Application.
(d) The Issuer and the Lenders agree that, while a Letter
of Credit is outstanding and prior to the Termination Date, at the option of
the Company and upon the
<PAGE>
written request of the Company received by the Issuer (with a copy sent by
the Company to the Co-Administrative Agent) at least five days (or such
shorter time as the Issuer may agree in a particular instance in its sole
discretion) prior to the proposed date of notification of renewal, the Issuer
shall be entitled to authorize the automatic renewal of any Letter of Credit
issued by it. Each such request for renewal of a Letter of Credit shall be
made by facsimile, confirmed immediately in an original writing, in the form
of an L/C Amendment Application, and shall specify in form and detail
satisfactory to the Issuer: (i) the Letter of Credit to be renewed; (ii) the
proposed date of notification of renewal of the Letter of Credit (which shall
be a Business Day); (iii) the revised expiry date of the Letter of Credit;
and (iv) such other matters as the Issuer may require. The Issuer shall be
under no obligation so to renew any Letter of Credit if: (A) the Issuer would
have no obligation at such time to issue or amend such Letter of Credit in
its renewed form under the terms of this Agreement; or (B) the beneficiary of
any such Letter of Credit does not accept the proposed renewal of the Letter
of Credit. If any outstanding Letter of Credit shall provide that it shall be
automatically renewed unless the beneficiary thereof receives notice from the
Issuer that such Letter of Credit shall not be renewed, and if at the time of
renewal the Issuer would be entitled to authorize the automatic renewal of
such Letter of Credit in accordance with this SUBSECTION 3.02(d) upon the
request of the Company but the Issuer shall not have received any L/C
Amendment Application from the Company with respect to such renewal or other
written direction by the Company with respect thereto, the Issuer shall
nonetheless be permitted to allow such Letter of Credit to renew, and the
Company and the Lenders hereby authorize such renewal, and, accordingly, the
Issuer shall be deemed to have received an L/C Amendment Application from the
Company requesting such renewal.
(e) The Issuer may, at its election (or as required by the
Agent or the Co-Administrative Agent at the direction of the Required
Lenders), deliver any notices of termination or other communications to any
Letter of Credit beneficiary or transferee, and take any other action as
necessary or appropriate, at any time and from time to time, in order to
cause the expiry date of such Letter of Credit to be a date not later than
the date which is five days prior to the Termination Date.
(f) This Agreement shall control in the event of any
conflict with any L/C-Related Document (other than any Letter of Credit).
(g) The Issuer will also deliver to the Co-Administrative
Agent, concurrently or promptly following its delivery of a Letter of Credit,
or amendment to or renewal of a Letter of Credit, to an advising bank or a
beneficiary, a true and complete copy of each such Letter of Credit or
amendment to or renewal of a Letter of Credit.
3.03 RISK PARTICIPATIONS, DRAWINGS AND REIMBURSEMENTS. (a)
Immediately upon the Issuance of each Letter of Credit, each Lender shall be
deemed to, and hereby irrevocably and unconditionally agrees to, purchase
from the Issuer a participation in such Letter of Credit and each drawing
thereunder in an amount equal to the product of (i) the Pro Rata Share of
such Lender, times (ii) the maximum amount available to be drawn under such
Letter of Credit and the amount of such drawing, respectively. For purposes
of SECTION 2.01, each Issuance of a Letter of Credit shall be deemed to
utilize the Commitment of each Lender by an amount equal to the amount of
such participation.
<PAGE>
(b) In the event of any request for a drawing under a
Letter of Credit by the beneficiary or transferee thereof, the Issuer will
promptly notify the Company. The Company shall reimburse the Issuer prior to
11:00 a.m. (Chicago time), on each date that any amount is paid by the Issuer
under any Letter of Credit (each such date, an "HONOR DATE"), in an amount
equal to the amount so paid by the Issuer. In the event the Company fails to
reimburse the Issuer the full amount of any drawing under any Letter of
Credit by 11:00 a.m. (Chicago time) on the Honor Date, the Issuer will
promptly notify the Co-Administrative Agent and the Co-Administrative Agent
will promptly notify each Lender thereof, and the Company shall be deemed to
have requested that Base Rate Loans in an amount equal to such unreimbursed
amount be made by the Revolving Lenders to be disbursed on the Honor Date
under such Letter of Credit, subject to the amount of the unutilized portion
of the Aggregate Commitment and subject to the conditions set forth in
SECTION 5.02. Any notice given by the Issuer or the Co-Administrative Agent
pursuant to this SUBSECTION 3.03(b) may be oral if immediately confirmed in
writing (including by facsimile); provided that the lack of such an immediate
confirmation shall not affect the conclusiveness or binding effect of such
notice.
(c) Each Revolving Lender shall upon any notice pursuant
to SUBSECTION 3.03(b) make available to the Co-Administrative Agent for the
account of the relevant Issuer an amount in Dollars and in immediately
available funds equal to its Pro Rata Share of the amount of the drawing,
whereupon the participating Lenders shall (subject to SUBSECTION 3.03(d))
each be deemed to have made a Revolving Loan consisting of a Base Rate Loan
to the Company in that amount. If any Lender so notified fails to make
available to the Co-Administrative Agent for the account of the Issuer the
amount of such Lender's Pro Rata Share of the amount of the drawing by no
later than 12:00 noon (Chicago time) on the Honor Date, then interest shall
accrue on such Lender's obligation to make such payment, from the Honor Date
to the date such Lender makes such payment, at a rate per annum equal to the
Federal Funds Rate in effect from time to time during such period. The
Co-Administrative Agent will promptly give notice of the occurrence of the
Honor Date, but failure of the Co-Administrative Agent to give any such
notice on the Honor Date or in sufficient time to enable any Lender to effect
such payment on such date shall not relieve such Lender from its obligations
under this SECTION 3.03 once notice has been provided.
(d) With respect to any unreimbursed drawing that is not
converted into Revolving Loans consisting of Base Rate Loans to the Company
in whole or in part, because of the Company's failure to satisfy the
conditions set forth in SECTION 5.02 or for any other reason, the Company
shall be deemed to have incurred from the Issuer an L/C Borrowing in the
Dollar Equivalent of the amount of such drawing, which L/C Borrowing shall be
due and payable on demand (together with interest) and shall bear interest at
a rate per annum equal to the Base Rate plus 2.0% per annum, and each
Lender's payment to the Issuer pursuant to SUBSECTION 3.03(c) shall be deemed
payment in respect of its participation in such L/C Borrowing and shall
constitute an L/C Advance from such Lender in satisfaction of its
participation obligation under this SECTION 3.03.
(e) Each Lender's obligation in accordance with this
Agreement to make the Revolving Loans or L/C Advances, as contemplated by
this SECTION 3.03, as a result of a drawing under a Letter of Credit, shall
be absolute and unconditional and without recourse to the Issuer
<PAGE>
and shall not be affected by any circumstance, including (i) any set-off,
counterclaim, recoupment, defense or other right which such Lender may have
against the Issuer, the Company or any other Person for any reason
whatsoever; (ii) the occurrence or continuance of a Default, an Event of
Default or a Material Adverse Effect; or (iii) any other circumstance,
happening or event whatsoever, whether or not similar to any of the
foregoing; PROVIDED, however, that each Lender's obligation to make Revolving
Loans under this SECTION 3.03 is subject to the conditions set forth in
SECTION 5.02.
3.04 REPAYMENT OF PARTICIPATIONS. (a) Upon (and only upon) receipt
by the Co-Administrative Agent for the account of the Issuer of immediately
available funds from the Company (i) in reimbursement of any payment made by
the Issuer under the Letter of Credit with respect to which any Lender has
paid the Co-Administrative Agent for the account of the Issuer for such
Lender's participation in the Letter of Credit pursuant to SECTION 3.03 or
(ii) in payment of interest thereon, the Co-Administrative Agent will
promptly pay to each Lender, in the same funds as those received by the
Co-Administrative Agent for the account of the Issuer, the amount of such
Lender's Pro Rata Share of such funds, and the Issuer shall receive the
amount of the Pro Rata Share of such funds of any Lender that did not so pay
the Co-Administrative Agent for the account of the Issuer.
(b) If the Agent, the Co-Administrative Agent or the
Issuer is required at any time to return to the Company, or to a trustee,
receiver, liquidator, custodian, or any official in any Insolvency
Proceeding, any portion of the payments made by the Company to the
Co-Administrative Agent for the account of the Issuer pursuant to SUBSECTION
3.04(a) in reimbursement of a payment made under the Letter of Credit or
interest or fee thereon, each Lender shall, on demand of the
Co-Administrative Agent, forthwith return to the Co-Administrative Agent or
the Issuer the amount of its Pro Rata Share of any amounts so returned by the
Co-Administrative Agent or the Issuer plus interest thereon from the date
such demand is made to the date such amounts are returned by such Lender to
the Agent, the Co-Administrative Agent or the Issuer, at a rate per annum
equal to the Federal Funds Rate in effect from time to time.
3.05 ROLE OF THE ISSUER. (a) Each Lender and the Company agree that,
in paying any drawing under a Letter of Credit, the Issuer shall not have any
responsibility to obtain any document (other than any documents expressly
required by the Letter of Credit) or to ascertain or inquire as to the validity
or accuracy of any such document or the authority of the Person executing or
delivering any such document.
(b) No Agent-Related Person nor any of the respective
correspondents, participants or assignees of the Issuer shall be liable to any
Lender for: (i) any action taken or omitted in connection herewith at the
request or with the approval of the Lenders or the Required Lenders, as
applicable; (ii) any action taken or omitted in the absence of gross negligence
or willful misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any L/C-Related Document.
(c) The Company hereby assumes all risks of the acts or
omissions of any beneficiary or transferee with respect to its use of any
Letter of Credit; PROVIDED, however, that
<PAGE>
this assumption is not intended to, and shall not, preclude the Company's
pursuing such rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. No Agent-Related Person, nor
any of the respective correspondents, participants or assignees of the
Issuer, shall be liable or responsible for any of the matters described in
clauses (i) through (vii) of SECTION 3.06; PROVIDED, however, anything in
such clauses to the contrary notwithstanding, that the Company may have a
claim against the Issuer, and the Issuer may be liable to the Company, to the
extent, but only to the extent, of any direct, as opposed to consequential or
exemplary, damages suffered by the Company which the Company proves were
caused by the Issuer's willful misconduct or gross negligence or the Issuer's
willful failure to pay under any Letter of Credit after the presentation to
it by the beneficiary of a document strictly complying with the terms and
conditions of a Letter of Credit. In furtherance and not in limitation of the
foregoing: (i) the Issuer may accept documents that appear on their face to
be in order, without responsibility for further investigation, regardless of
any notice or information to the contrary; and (ii) the Issuer shall not be
responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the
rights or benefits thereunder or proceeds thereof, in whole or in part, which
may prove to be invalid or ineffective for any reason.
3.06 OBLIGATIONS ABSOLUTE. The obligations of the Company under
this Agreement and any L/C-Related Document to reimburse the Issuer for a
drawing under a Letter of Credit, and to repay any L/C Borrowing and any
drawing under a Letter of Credit converted into Revolving Loans, shall be
unconditional and irrevocable, and shall be paid strictly in accordance with
the terms of this Agreement and each such other L/C-Related Document under
all circumstances, including the following:
(i) any lack of validity or enforceability of this
Agreement or any L/C-Related Document;
(ii) any change in the time, manner or place of payment of,
or in any other term of, all or any of the obligations of the
Company in respect of any Letter of Credit or any other amendment or
waiver of or any consent to departure from all or any of the
L/C-Related Documents;
(iii) the existence of any claim, recoupment, set-off,
defense or other right that the Company may have at any time against
any beneficiary or any transferee of any Letter of Credit (or any
Person for whom any such beneficiary or any such transferee may be
acting), the Issuer or any other Person, whether in connection with
this Agreement, the transactions contemplated hereby or by the
L/C-Related Documents or any unrelated transaction;
(iv) any draft, demand, certificate or other document
presented under any Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect; or any loss or
delay in the transmission or otherwise of any document required in
order to make a drawing under any Letter of Credit;
<PAGE>
(v) any payment by the Issuer under any Letter of Credit
against presentation of a document that does not strictly comply
with the terms of any Letter of Credit; or any payment made by the
Issuer under any Letter of Credit to any Person purporting to be a
trustee in bankruptcy, debtor-in-possession, assignee for the
benefit of creditors, liquidator, receiver or other representative
of or successor to any beneficiary or any transferee of any Letter
of Credit, including any arising in connection with any Insolvency
Proceeding;
(vi) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or consent to
departure from any other guarantee, for all or any of the
obligations of the Company in respect of any Letter of Credit; or
(vii) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense available to,
or a discharge of, the Company or a guarantor.
3.07 CASH COLLATERAL PLEDGE. Upon (i) the request of the Agent
or the Required Lenders, (A) if any Event of Default has occurred and is
continuing, or (B) if, as of the Termination Date, any Letters of Credit may
for any reason remain outstanding and partially or wholly undrawn, or (ii)
the termination of the Aggregate Commitment, then the Company shall
immediately Cash Collateralize the L/C Obligations in an amount equal to such
L/C Obligations.
3.08 LETTER OF CREDIT FEES. (a) The Company shall pay to the
Co-Administrative Agent for the account of each of the Lenders a letter of
credit fee with respect to the Letters of Credit equal to the Applicable
Margin times the average daily maximum amount available to be drawn of the
outstanding Letters of Credit, computed on a quarterly basis in arrears on
the last Business Day of each calendar quarter based upon Letters of Credit
outstanding for that quarter as calculated by the Co-Administrative Agent.
Such letter of credit fees shall be due and payable quarterly in arrears on
the last Business Day of each calendar quarter during which Letters of Credit
are outstanding, commencing on the first such quarterly date to occur after
the Closing Date, through the Termination Date (or such later date upon which
the outstanding Letters of Credit shall expire), with the final payment to be
made on the Termination Date (or such later expiration date).
(b) The Company shall pay to the Issuer a letter of credit
fronting fee for each Letter of Credit Issued by the Issuer equal to .125%
per annum of the face amount (or increased or decreased face amount, as the
case may be) of such Letter of Credit. Such Letter of Credit fronting fee
shall be due and payable quarterly in arrears on the last Business Day of
each calendar quarter during which such Letter of Credit is outstanding,
commencing on the first such quarterly date to occur after such Letter of
Credit is issued, through the Termination Date (or such later date upon which
such Letter of Credit shall expire), with the final payment to be made on the
Termination Date (or such later expiration date).
(c) The Company shall pay to the Issuer from time to time
on demand the normal issuance, presentation, amendment and other processing
fees, and other standard costs and charges, of such Issuer relating to
letters of credit as from time to time in effect.
<PAGE>
3.09 UNIFORM CUSTOMS AND PRACTICE. The Uniform Customs and
Practice for Documentary Credits as published by the International Chamber of
Commerce most recently at the time of issuance of any Letter of Credit shall
(unless otherwise expressly provided in the Letters of Credit) apply to the
Letters of Credit.
ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY
4.01 TAXES. (a) Any and all payments by the Company to each
Lender, the Co-Administrative Agent or the Agent under this Agreement and any
other Loan Document shall be made free and clear of, and without deduction or
withholding for, any Taxes. In addition, the Company shall pay all Further
Taxes and Other Taxes.
(b) If the Company shall be required by law to deduct or
withhold any Taxes, Other Taxes or Further Taxes from or in respect of any
sum payable hereunder to any Lender, the Co-Administrative Agent or the
Agent, then:
(i) the sum payable shall be increased as necessary
so that, after making all required deductions and withholdings
(including deductions and withholdings applicable to additional sums
payable under this Section), such Lender, the Co-Administrative
Agent or the Agent, as the case may be, receives and retains an
amount equal to the sum it would have received and retained had no
such deductions or withholdings been made;
(ii) the Company shall make such deductions and
withholdings;
(iii) the Company shall pay the full amount deducted or
withheld to the relevant taxing authority or other authority in
accordance with applicable law; and
(iv) the Company shall also pay to each Lender, the
Co-Administrative Agent or the Agent for the account of such Lender,
at the time interest is paid, Further Taxes in the amount that the
respective Lender specifies as necessary to preserve the after-tax
yield the Lender would have received if such Taxes, Other Taxes or
Further Taxes had not been imposed.
(c) The Company agrees to indemnify and hold harmless each
Lender, the Co-Administrative Agent and the Agent for the full amount of (i)
Taxes, (ii) Other Taxes, and (iii) Further Taxes in the amount that the
respective Lender specifies as necessary to preserve the after-tax yield the
Lender would have received if such Taxes, Other Taxes or Further Taxes had
not been imposed, and any liability (including penalties, interest, additions
to tax and expenses) arising therefrom or with respect thereto, whether or
not such Taxes, Other Taxes or Further Taxes were correctly or legally
asserted. Payment under this indemnification shall be made within 30 days
after the date the Lender, the Co-Administrative Agent or the Agent makes
written demand therefor.
<PAGE>
(d) Within 30 days after the date of any payment by the
Company of Taxes, Other Taxes or Further Taxes, the Company shall furnish to
each Lender, the Co-Administrative Agent or the Agent the original or a
certified copy of a receipt evidencing payment thereof, or other evidence of
payment satisfactory to such Lender, the Co-Administrative Agent or the Agent.
(e) If the Company is required to pay any amount
to any Lender, the Co-Administrative Agent or the Agent pursuant to
subsection (b) or (c) of this Section, then such Lender shall use reasonable
efforts (consistent with legal and regulatory restrictions) to change the
jurisdiction of its Lending Office so as to eliminate any such additional
payment by the Company which may thereafter accrue, if such change in the
sole judgment of such Lender is not otherwise disadvantageous to such Lender.
4.02 ILLEGALITY. (a) If any Lender determines that the
introduction of any Requirement of Law, or any change in any Requirement of
Law, or in the interpretation or administration of any Requirement of Law,
has made it unlawful, or that any central bank or other Governmental
Authority has asserted that it is unlawful, for any Lender or its applicable
Lending Office to make Offshore Rate Loans, then, on notice thereof by the
Lender to the Company through the Co-Administrative Agent, any obligation of
that Lender to make Offshore Rate Loans shall be suspended until the Lender
notifies the Co-Administrative Agent and the Company that the circumstances
giving rise to such determination no longer exist.
(b) If a Lender determines that it is unlawful to maintain
any Offshore Rate Loan, the Company shall, upon its receipt of notice of such
fact and demand from such Lender (with a copy to the Co-Administrative
Agent), prepay in full such Offshore Rate Loans of that Lender then
outstanding, together with interest accrued thereon and amounts required
under SECTION 4.04, either on the last day of the Interest Period thereof, if
the Lender may lawfully continue to maintain such Offshore Rate Loans to such
day, or immediately, if the Lender may not lawfully continue to maintain such
Offshore Rate Loan. If the Company is required to so prepay any Offshore Rate
Loan, then concurrently with such prepayment, the Company shall borrow from
the affected Lender, in the amount of such repayment, a Base Rate Loan.
(c) If the obligation of any Lender to make or maintain
Offshore Rate Loans has been so terminated or suspended, the Company may
elect, by giving notice to the Lender through the Co-Administrative Agent
that all Loans which would otherwise be made by the Lender as Offshore Rate
Loans shall be instead Base Rate Loans.
(d) Before giving any notice to the Co-Administrative
Agent under this Section, the affected Lender shall designate a different
Lending Office with respect to its Offshore Rate Loans if such designation
will avoid the need for giving such notice or making such demand and will
not, in the judgment of the Lender, be illegal or otherwise disadvantageous
to the Lender.
4.03 INCREASED COSTS AND REDUCTION OF RETURN. (a) If any Lender
determines that, due to either (i) the introduction of or any change in or in
the interpretation of any law or regulation or (ii) the compliance by that
Lender with any guideline or request from any central bank or other
<PAGE>
Governmental Authority (whether or not having the force of law), there shall
be any increase in the cost to such Lender of agreeing to make or making,
funding or maintaining any Offshore Rate Loans or participating in Letters of
Credit, or, in the case of the Issuer, any increase in the cost to the Issuer
of agreeing to issue, issuing or maintaining any Letter of Credit or of
agreeing to make or making, funding or maintaining any unpaid drawing under
any Letter of Credit, then the Company shall be liable for, and shall from
time to time, upon demand (with a copy of such demand to be sent to the
Co-Administrative Agent), pay to the Co-Administrative Agent for the account
of such Lender, additional amounts as are sufficient to compensate such
Lender for such increased costs.
(b) If any Lender shall have determined that (i) the
introduction of any Capital Adequacy Regulation, (ii) any change in any
Capital Adequacy Regulation, (iii) any change in the interpretation or
administration of any Capital Adequacy Regulation by any central bank or
other Governmental Authority charged with the interpretation or
administration thereof, or (iv) compliance by the Lender (or its Lending
Office) or any corporation controlling the Lender with any Capital Adequacy
Regulation, affects or would affect the amount of capital required or
expected to be maintained by the Lender or any corporation controlling the
Lender and (taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy and such Lender's desired return on
capital) determines that the amount of such capital is increased as a
consequence of its Commitment, loans, credits or obligations under this
Agreement, then, upon demand of such Lender to the Company through the
Co-Administrative Agent, the Company shall pay to the Lender, from time to
time as specified by the Lender, additional amounts sufficient to compensate
the Lender for such increase.
4.04 FUNDING LOSSES. The Company shall reimburse each Lender and
hold each Lender harmless from any loss or expense which the Lender may
sustain or incur as a consequence of:
(a) the failure of the Company to make on a timely basis any
payment of principal of any Offshore Rate Loan;
(b) the failure of the Company to borrow, continue or convert
a Loan after the Company has given (or is deemed to have given) a Notice of
Borrowing, a Notice of Conversion/ Continuation or similar notice;
(c) the failure of the Company to make any prepayment in
accordance with any notice delivered under SECTION 2.08;
(d) the prepayment or other payment (including after
acceleration thereof) of an Offshore Rate Loan on a day that is not the last
day of the relevant Interest Period; or
(e) the automatic conversion under SECTION 2.04 of any
Offshore Rate Loan to a Base Rate Loan on a day that is not the last day of
the relevant Interest Period;
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its Offshore Rate Loans or from fees payable
to terminate the deposits from which such funds were obtained. For purposes of
calculating amounts payable by the
<PAGE>
Company to the Lenders under this Section and under SUBSECTION 4.03(a), each
Offshore Rate Loan made by a Lender (and each related reserve, special
deposit or similar requirement) shall be conclusively deemed to have been
funded at the LIBOR used in determining the Offshore Rate for such Offshore
Rate Loan by a matching deposit or other borrowing in the interbank
eurodollar market for a comparable amount and for a comparable period,
whether or not such Offshore Rate Loan is in fact so funded.
4.05 INABILITY TO DETERMINE RATES. If the Co-Administrative Agent
determines that for any reason adequate and reasonable means do not exist for
determining the Offshore Rate for any requested Interest Period with respect
to a proposed Offshore Rate Loan, or that the Offshore Rate applicable
pursuant to SUBSECTION 2.11(a) for any requested Interest Period with respect
to a proposed Offshore Rate Loan does not adequately and fairly reflect the
cost to the Lenders of funding such Loan, the Co-Administrative Agent will
promptly so notify the Company and each Lender. Thereafter, the obligation of
the Lenders to make or maintain Offshore Rate Loans hereunder shall be
suspended until the Co-Administrative Agent revokes such notice in writing.
Upon receipt of such notice, the Company may revoke any Notice of Borrowing
or Notice of Conversion/Continuation then submitted by it. If the Company
does not revoke such Notice, the Lenders shall make, convert or continue the
Loans, as proposed by the Company, in the amount specified in the applicable
notice submitted by the Company, but such Loans shall be made, converted or
continued as Base Rate Loans instead of Offshore Rate Loans, as the case may
be.
4.06 RESERVES ON OFFSHORE RATE LOANS. The Company shall pay to each
Lender, as long as such Lender shall be required under regulations of the FRB
to maintain reserves with respect to liabilities or assets consisting of or
including Eurocurrency funds or deposits (currently known as "Eurocurrency
liabilities"), additional costs on the unpaid principal amount of each
Offshore Rate Loan to the Company equal to the actual costs of such reserves
allocated to such Loan by the Lender (as determined by the Lender in good
faith, which determination shall be conclusive), payable on each date on
which interest is payable on such Loan, provided the Company shall have
received at least 15 days' prior written notice (with a copy to the
Co-Administrative Agent) of such additional interest from the Lender. If a
Lender fails to give notice 15 days prior to the relevant Interest Payment
Date, such additional interest shall be payable 15 days from receipt of such
notice.
4.07 CERTIFICATES OF LENDERS. Any Lender claiming reimbursement or
compensation under this ARTICLE IV shall deliver to the Company (with a copy
to the Co-Administrative Agent) a certificate setting forth in reasonable
detail the amount payable to the Lender hereunder and such certificate shall
be conclusive and binding on the Company in the absence of manifest error.
4.08 SUBSTITUTION OF BANKS. Upon the receipt by the Company from
any Lender (an "AFFECTED LENDER") of a claim for compensation under SECTION
4.03 or SECTION 4.06, of notice that it cannot make Offshore Rate Loans under
SECTION 4.02, or of a claim for Taxes or Further Taxes under SECTION 4.01,
then the Agent, at the Company's direction, shall: (i) request the Affected
Lender to use good faith efforts to obtain a replacement bank or financial
institution satisfactory to the Company to acquire and assume all or a
ratable part of all of such Affected Lender's Loans and Commitments at the
face amount thereof (a "REPLACEMENT LENDER"); (ii) request one more of the
other Lenders to acquire and assume all or part of such Affected
<PAGE>
Lender's Loans and Commitments; or (iii) designate a Replacement Lender. Any
such designation of a Replacement Lender under clause (i) or (iii) shall be
subject to the prior written consent of the Agent (which consent shall not be
unreasonably withheld). Any transfer of Loans and Commitments shall be
accompanied by the payment of any amounts due to the Affected Lender under
SECTIONS 4.01, 4.03, 4.04 (calculated as if the assigned Loans were prepaid
on the date of assignment) and 4.06 and shall be made in accordance with
SECTION 11.08; PROVIDED, that the processing fee referenced in SECTION
11.08(a) shall not be required to be paid.
4.09 SURVIVAL. The agreements and obligations of the Company in
this ARTICLE IV shall survive the payment of all other Obligations, and the
Company will have no obligation to pay any amount hereunder unless a demand
is made within 180 days after the date upon which the Agent's, the
Co-Administrative Agent's or applicable Lender's right to reimbursement
arises.
ARTICLE V
CONDITIONS PRECEDENT
5.01 CONDITIONS OF INITIAL CREDIT EXTENSIONS. The obligation of
each Lender to make its initial Credit Extension hereunder is subject to the
condition that the Agent shall have received on or before the date of the
initial Credit Extension all of the following, in form and substance
satisfactory to the Agent and each Lender, and in sufficient copies for each
Lender:
(a) CREDIT AGREEMENT. This Agreement executed by each party
thereto;
(b) RESOLUTIONS; INCUMBENCY.
(i) Copies of the resolutions of the board of directors
of the Company and each Subsidiary party to a Loan Document
authorizing the transactions contemplated hereby, certified as of
the Closing Date by the Secretary or an Assistant Secretary of
such Person; and
(ii) A certificate of the Secretary or Assistant
Secretary of the Company and each Subsidiary party to a Loan
Document certifying the names and true signatures of the officers
of the Company or such Subsidiary authorized to execute, deliver
and perform, as applicable, this Agreement and all other Loan
Documents to be delivered by it hereunder;
(c) ORGANIZATION DOCUMENTS; GOOD STANDING. Each of the following
documents:
(i) the articles or certificate of incorporation and the
bylaws of the Company and each Subsidiary party to any Loan
Document as in effect on the Closing Date, certified by the
Secretary or Assistant Secretary of the Company or such Subsidiary
as of the Closing Date; and
<PAGE>
(ii) a good standing certificate or certificate of status
for the Company and each Subsidiary party to any Loan Document
from the Secretary of State (or similar, applicable Governmental
Authority) of its state of incorporation;
(d) LEGAL OPINION. An opinion of Bert M. Gross, Esq., counsel
to the Company, addressed to the Agent and the Lenders.
(e) PAYMENT OF FEES. Evidence of payment by the Company of
all accrued and unpaid fees, costs and expenses to the extent then due and
payable on the Closing Date, together with Attorney Costs of BofA to the
extent invoiced prior to or on the Closing Date, plus such additional amounts
of Attorney Costs as shall constitute BofA's reasonable estimate of Attorney
Costs incurred or to be incurred by it through the closing proceedings
(provided that such estimate shall not thereafter preclude final settling of
accounts between the Company and BofA); including any such costs, fees and
expenses arising under or referenced in SECTIONS 2.11 and 11.04;
(f) CERTIFICATE. A certificate signed by a Responsible
Officer, dated as of the Closing Date, stating that:
(i) the representations and warranties contained in ARTICLE
VI are true and correct on and as of such date, as though made on and
as of such date;
(ii) no Default or Event of Default exists or would result
from the Credit Extension; and
(iii) there has not occurred since June 30, 1998 any
event or circumstance that has resulted or could reasonably be
expected to result in a Material Adverse Effect;
(g) SUBSIDIARY GUARANTY. The Subsidiary Guaranty executed by
each Subsidiary Guarantor;
(h) REPAYMENT OF PRIOR INDEBTEDNESS. All outstanding
Indebtedness of the Company or any Subsidiary not specified on SCHEDULE 8.05
or otherwise permitted by SECTION 8.05 shall have been paid in full and all
Liens securing such Indebtedness shall have been terminated;
(i) YEAR 2000. Receipt and review, with results satisfactory
to the Agent and the Lenders, of information confirming that (i) the Company
and its Subsidiaries are taking all necessary and appropriate steps to
ascertain the extent of, and to quantify and successfully address, business
and financial risks facing the Company and its Subsidiaries as a result of
what is commonly referred to as the "YEAR 2000 PROBLEM" (I.E., the inability
of certain computer applications to recognize correctly and perform
date-sensitive functions involving certain dates prior to and after December
31, 1999), including risks resulting from the failure of key vendors and
customers of the Company and its Subsidiaries to successfully address the
Year 2000 Problem, and (b) the Company's and its Subsidiaries' material
computer applications and those
<PAGE>
of its key vendors and customers will, on a timely basis, adequately address
the Year 2000 Problem in all material respects; and
(j) OTHER DOCUMENTS. Such other approvals, opinions,
documents or materials as the Agent, the Co-Administrative Agent or any
Lender may request.
5.02 CONDITIONS TO ALL CREDIT EXTENSIONS. The obligation of each
Lender to make any Revolving Loan to be made by it (including its initial
Revolving Loan) and the obligation of the Issuer to Issue any Letter of Credit
(including the initial Letter of Credit) is subject to the satisfaction of the
following conditions precedent on the relevant Borrowing Date or Issuance Date:
(a) NOTICE, APPLICATION. The Agent shall have received a Notice
of Borrowing or in the case of any Issuance of any Letter of Credit, the Issuer
and the Agent shall have received an L/C Application or L/C Amendment
Application, as required under SECTION 3.02;
(b) CONTINUATION OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties in ARTICLE VI shall be true and correct on and as
of such Borrowing Date or Issuance Date with the same effect as if made on and
as of such Borrowing Date or Issuance Date (except to the extent such
representations and warranties expressly refer to an earlier date, in which case
they shall be true and correct as of such earlier date); and
(c) NO EXISTING DEFAULT. No Default or Event of Default shall
exist or shall result from such Borrowing or Issuance.
Each Notice of Borrowing, L/C Application or L/C Amendment Application submitted
by the Company hereunder shall constitute a representation and warranty by the
Company hereunder, as of the date of each such notice and as of each Borrowing
Date or Issuance Date, as applicable, that the conditions in this SECTION 5.02
are satisfied.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Agent, the
Co-Administrative Agent and each Lender that:
6.01 CORPORATE EXISTENCE AND POWER. The Company and each of its
Subsidiaries:
(a) is an entity duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation or formation;
(b) has the power and authority and all governmental licenses,
authorizations, consents and approvals to own its assets, to carry on its
business and to execute, deliver, and perform its obligations under the Loan
Documents to which it is a party;
<PAGE>
(c) is duly qualified as a foreign corporation and is
licensed and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification or license; and
(d) is in compliance with all Requirements of Law; except, in
each case referred to in clause (c) or clause (d), to the extent that the
failure to do so could not reasonably be expected to have a Material Adverse
Effect.
6.02 CORPORATE AUTHORIZATION; NO CONTRAVENTION. The execution,
delivery and performance by the Company and its Subsidiaries of this Agreement
and each other Loan Document to which such Person is party, have been duly
authorized by all necessary corporate action, and do not and will not:
(a) contravene the terms of any of that Person's Organization
Documents;
(b) conflict with or result in any breach or contravention
of, or the creation of any Lien under, any document evidencing any
Contractual Obligation to which such Person is a party or any order,
injunction, writ or decree of any Governmental Authority to which such Person
or its property is subject; or
(c) violate any Requirement of Law.
6.03 GOVERNMENTAL AUTHORIZATION. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, the Company or
any of its Subsidiaries of the Agreement or any other Loan Document.
6.04 BINDING EFFECT. This Agreement and each other Loan Document to
which the Company or any of its Subsidiaries is a party constitute the legal,
valid and binding obligations of the Company and any of its Subsidiaries to
the extent it is a party thereto, enforceable against such Person in
accordance with their respective terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, or similar laws affecting the
enforcement of creditors' rights generally or by equitable principles
relating to enforceability.
6.05 LITIGATION. There are no actions, suits, proceedings, claims
or disputes pending, or to the best knowledge of the Company, threatened or
contemplated, at law, in equity, in arbitration or before any Governmental
Authority, against the Company, or its Subsidiaries or any of their
respective properties:
(a) which purport to affect or pertain to this Agreement or
any other Loan Document, or any of the transactions contemplated hereby or
thereby; or
(b) as to which there exists a substantial likelihood of
an adverse determination, which determination could reasonably be expected to
have a Material Adverse Effect. No injunction, writ, temporary restraining
order or any order of any nature has been issued by any court or other
Governmental Authority purporting to enjoin or restrain the
<PAGE>
execution, delivery or performance of this Agreement or any other Loan
Document, or directing that the transactions provided for herein or therein
not be consummated as herein or therein provided.
6.06 NO DEFAULT. No Default or Event of Default exists or would
result from the incurring of any Obligations by the Company. As of the
Closing Date, neither the Company nor any Subsidiary is in default under or
with respect to any Contractual Obligation in any respect which, individually
or together with all such defaults, could reasonably be expected to have a
Material Adverse Effect, or that would, if such default had occurred after
the Closing Date, create an Event of Default under SUBSECTION 9.01(e).
6.07 ERISA COMPLIANCE.
(a) Each Plan is in compliance in all material respects
with the applicable provisions of ERISA, the Code and other federal or state
law. Each Plan which is intended to qualify under Section 401(a) of the Code
has received a favorable determination letter from the IRS and to the best
knowledge of the Company, nothing has occurred which would cause the loss of
such qualification. The Company and each ERISA Affiliate has made all
required contributions to any Plan subject to Section 412 of the Code, and no
application for a funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code has been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of the
Company, threatened claims, actions or lawsuits, or action by any
Governmental Authority, with respect to any Plan which has resulted or could
reasonably be expected to result in a Material Adverse Effect. There has been
no prohibited transaction or violation of the fiduciary responsibility rules
with respect to any Plan which has resulted or could reasonably be expected
to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected
to occur; (ii) no Pension Plan has any Unfunded Pension Liability; (iii)
neither the Company nor any ERISA Affiliate has incurred, or reasonably
expects to incur, any liability to the PBGC under Title IV of ERISA with
respect to any Pension Plan (other than premiums due and not delinquent under
Section 4007 of ERISA); (iv) neither the Company nor any ERISA Affiliate has
incurred, or reasonably expects to incur, any liability (and no event has
occurred which, with the giving of notice under Section 4219 of ERISA, would
result in such liability) under Section 4201 or 4243 of ERISA with respect to
a Multiemployer Plan; and (v) neither the Company nor any ERISA Affiliate has
engaged in a transaction that could be subject to Section 4069 or 4212(c) of
ERISA.
6.08 USE OF PROCEEDS; MARGIN REGULATIONS. The proceeds of the Loans
are to be used solely for the purposes set forth in and permitted by SECTION
7.12, to the extent not prohibited by SECTION 8.07. Neither the Company nor
any Subsidiary is generally engaged in the business of purchasing or selling
Margin Stock or extending credit for the purpose of purchasing or carrying
Margin Stock. No part of the proceeds of any Loan will be used to purchase or
carry any margin stock (as defined in Regulation U of the FRB), directly or
indirectly, or to extend credit for the purpose of purchasing or carrying any
such margin stock for the purpose of reducing or retiring
<PAGE>
any indebtedness which was originally incurred to purchase or carry any
margin security or for any other purpose which might cause any of the loans
or extensions of credit under this Agreement to be considered a "purpose
credit" within the meaning of Regulation T, U or X of the FRB.
6.09 TITLE TO PROPERTIES. The Company and each Subsidiary have good
record and marketable title in fee simple to, or valid leasehold interests
in, all real property necessary or used in the ordinary conduct of their
respective businesses, except for such defects in title as could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. As of the Closing Date, the property of the Company and its
Subsidiaries is subject to no Liens, other than Permitted Liens.
6.10 TAXES. The Company and its Subsidiaries have filed all Federal
and other material tax returns and reports required to be filed, and have
paid all Federal and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties, income
or assets otherwise due and payable, except those which are being contested
in good faith by appropriate proceedings and for which adequate reserves have
been provided in accordance with GAAP. There is no proposed tax assessment
against the Company or any Subsidiary that would, if made, have a Material
Adverse Effect.
6.11 FINANCIAL CONDITION. (a) Each of (i) the audited consolidated
financial statements of the Company and its Subsidiaries dated June 30, 1998,
and the related consolidated statements of income or operations,
shareholders' equity and cash flows for the fiscal year ended on that date,
and (ii) the unaudited consolidated financial statements of the Company and
its Subsidiaries dated March 31, 1999, and the related consolidated
statements of income or operations, shareholders' equity and cash flows for
the 9 months ended on that date:
(x) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except for the absence
of footnotes and as otherwise expressly noted therein, subject, in
the case of such unaudited financial statements, to ordinary, good
faith year end audit adjustments;
(y) fairly present the financial condition of the Company
and its Subsidiaries as of the date thereof and results of operations
for the period covered thereby; and
(z) except as specifically disclosed in SCHEDULE 6.11, show
all material indebtedness and other liabilities, direct or
contingent, of the Company and its Subsidiaries as of the
date thereof.
(b) Since December 31, 1998 there has been no Material
Adverse Effect.
6.12 ENVIRONMENTAL MATTERS. Except as specifically disclosed in
SCHEDULE 6.12:
(a) The on-going operations of the Company and each of its
Subsidiaries comply in all respects with all Environmental Laws, except such
non-compliance which would
<PAGE>
not (if enforced in accordance with applicable law) result in liability in
excess of $1,500,000 in the aggregate (exclusive of amounts payable under
insurance policies and indemnity agreements which the Company or such
Subsidiary reasonably expects to receive).
(b) The Company and each of its Subsidiaries have obtained
all licenses, permits, authorizations and registrations required under any
Environmental Law ("ENVIRONMENTAL PERMITS") and necessary for their
respective ordinary course operations, all such Environmental Permits are in
good standing, and the Company and each of its Subsidiaries are in compliance
with all material terms and conditions of such Environmental Permits.
(c) None of the Company, any of its Subsidiaries or any of
their respective present Property or operations, is subject to any
outstanding written order from or agreement with any Governmental Authority,
nor subject to (i) any judicial or docketed administrative proceeding,
respecting any Environmental Law, Environmental Claim or Hazardous Material
or (ii) to the extent that it could reasonably be expected to have a Material
Adverse Effect, any claim, proceeding or written notice from any Person
regarding any Environmental Law, Environmental Claim or Hazardous Material.
(d) There are no Hazardous Materials or other conditions or
circumstances existing with respect to any Property of the Company or any
Subsidiary, or arising from operations prior to the Closing Date, of the
Company or any of its Subsidiaries that would reasonably be expected to give
rise to Environmental Claims with a potential liability of the Company and
its Subsidiaries in excess of $1,500,000 in the aggregate for all such
conditions, circumstances and Properties. In addition, (i) neither the
Company nor any Subsidiary has any underground storage tanks (x) that are not
properly registered or permitted under applicable Environmental Laws, or (y)
that are leaking or disposing of Hazardous Materials off-site, and (ii) the
Company and its Subsidiaries have met all material notification requirements
under applicable Environmental Laws.
6.13 LABOR RELATIONS. There are no strikes, lockouts or other
labor disputes against the Company or any of its Subsidiaries, or, to the
best of the Company's knowledge, threatened against or affecting the Company
or any of its Subsidiaries, and no significant unfair labor practice
complaint is pending against the Company or any of its Subsidiaries or, to
the best knowledge of the Company, threatened against any of them before any
Governmental Authority.
6.14 REGULATED ENTITIES. None of the Company, any Person
controlling the Company, or any Subsidiary, is an "Investment Company" within
the meaning of the Investment Company Act of 1940. Neither the Company nor
any Subsidiary is subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act, the Interstate Commerce Act, any
state public utilities code, or any other Federal or state statute or
regulation limiting its ability to incur Indebtedness.
6.15 NO BURDENSOME RESTRICTIONS. Neither the Company nor any
Subsidiary is a party to or bound by any Contractual Obligation, or subject
to any restriction in any Organization Document, or any Requirement of Law,
which could reasonably be expected to have a Material Adverse Effect.
<PAGE>
6.16 COPYRIGHTS, PATENTS, TRADEMARKS AND LICENSES, ETC. The Company
and its Subsidiaries own or are licensed or otherwise have the right to use
all of the patents, trademarks, service marks, trade names, copyrights,
contractual franchises, authorizations and other rights that are reasonably
necessary for the operation of their respective businesses, without conflict
with the rights of any other Person. To the best knowledge of the Company, no
slogan or other advertising device, product, process, method, substance, part
or other material now employed, or now contemplated to be employed, by the
Company or any Subsidiary infringes upon any rights held by any other Person.
No claim or litigation regarding any of the foregoing is pending or
threatened, and no patent, invention, device, application, principle or any
statute, law, rule, regulation, standard or code is pending or, to the
knowledge of the Company, proposed, which, in either case, could reasonably
be expected to have a Material Adverse Effect.
6.17 SUBSIDIARIES. As of the Closing Date, the Company has no
Subsidiaries other than those specifically disclosed in part (a) of SCHEDULE
6.17 hereto and has no equity investments in any other corporation or entity
other than those specifically disclosed in part (b) of SCHEDULE 6.17.
6.18 INSURANCE. The properties of the Company and its Subsidiaries
are insured with financially sound and reputable insurance companies not
Affiliates of the Company in such amounts, with such deductibles and covering
such risks as are customarily carried by companies engaged in similar
businesses and are similarly situated.
6.19 SWAP OBLIGATIONS. Neither the Company nor any of its
Subsidiaries has incurred any outstanding obligations under any Swap
Contracts, other than Permitted Swap Obligations. The Company has undertaken
its own independent assessment of its consolidated assets, liabilities and
commitments and has considered appropriate means of mitigating and managing
risks associated with such matters and has not relied on any swap
counterparty or any Affiliate of any swap counterparty in determining whether
to enter into any Swap Contract.
6.20 SOLVENCY. The Company and each of its Subsidiaries are Solvent.
6.21 YEAR 2000 COMPLIANCE. The Company and its Subsidiaries have
conducted a comprehensive review and assessment of its computer applications,
and have made inquiry of their material suppliers, vendors and customers,
with respect to any defect in computer software, data bases, hardware,
controls and peripherals related to the occurrence of the year 2000 or the
Year 2000 Problem in connection therewith. Based on the foregoing review,
assessment and inquiry, the Company believes that no such defect could
reasonably be expected to have a Material Adverse Effect.
6.22 FULL DISCLOSURE. None of the representations or
warranties made by the Company or any Subsidiary in the Loan Documents as of
the date such representations and warranties are made or deemed made, and
none of the statements contained in any exhibit, report, statement or
certificate furnished by or on behalf of the Company or any Subsidiary in
connection with the Loan Documents (including the offering and disclosure
materials delivered by or on behalf of the Company or its Subsidiaries to the
Lenders prior to the Closing Date), contains any untrue statement of a
material fact or omits any material fact required to be stated therein or
necessary
<PAGE>
to make the statements made therein, in light of the circumstances under
which they are made, not misleading as of the time when made or delivered.
ARTICLE VII
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any
Loan or other Obligation shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, unless the Required Lenders waive compliance
in writing:
7.01 FINANCIAL STATEMENTS. The Company shall deliver to the
Co-Administrative Agent, in form and detail satisfactory to the Agent, the
Co-Administrative and the Required Lenders, with sufficient copies to be
provided by the Co-Administrative Agent to each Lender:
(a) as soon as available, but not later than the earlier of
(i) five days after the filing thereof with the SEC and (ii) 105 days after
the end of each fiscal year (commencing with the fiscal year ended June 30,
1999), a copy of the audited consolidated balance sheet of the Company and
its Subsidiaries as at the end of such year and the related consolidated
statements of income, shareholders' equity and cash flows for such year,
setting forth in each case in comparative form the figures for the previous
fiscal year, and accompanied by the opinion of PriceWaterhouseCoopers LLP or
another nationally-recognized independent public accounting firm
("INDEPENDENT AUDITOR") which report shall state that such consolidated
financial statements present fairly the financial position for the periods
indicated in conformity with GAAP applied on a basis consistent with prior
years. Such opinion shall not be qualified or limited because of a restricted
or limited examination by the Independent Auditor of any material portion of
the Company's or any Subsidiary's records or because of a "going concern"
exception; and
(b) as soon as available, but not later than the earlier of
(i) five days after the filing thereof with the SEC and (ii) 45 days after
the end of each of the first three fiscal quarters of each fiscal year
(commencing with the fiscal quarter ended September 30, 1999), a copy of the
unaudited consolidated and consolidating balance sheet of the Company and its
Subsidiaries as of the end of such fiscal quarter and the related
consolidated and consolidating statements of income, shareholders' equity and
cash flows for the period commencing on the first day and ending on the last
day of such fiscal quarter, and certified by a Responsible Officer as fairly
presenting, in accordance with GAAP (subject to ordinary, good faith year-end
audit adjustments), the financial position and the results of operations of
the Company and the Subsidiaries.
7.02 CERTIFICATES; OTHER INFORMATION. The Company shall furnish
to the Agent and the Co-Administrative Agent, with sufficient copies to be
provided by the Co-Administrative Agent to each Lender:
(a) concurrently with the delivery of the financial
statements referred to in SUBSECTION 7.01(a), a certificate of the
Independent Auditor stating that in making the
<PAGE>
examination necessary therefor no knowledge was obtained of any Default or
Event of Default, except as specified in such certificate;
(b) concurrently with the delivery of the financial
statements referred to in SUBSECTIONS 7.01(a) and (b), a Compliance
Certificate executed by a Responsible Officer;
(c) concurrently with the delivery of the financial
statements referred to in SUBSECTION 7.01(a), (i) a consolidating balance
sheet and income statement for such year (which need not be audited) and
setting forth in comparative form the figures for the previous fiscal year,
and (ii) a budget for the next succeeding fiscal year;
(d) promptly, copies of all financial statements and
reports that the Company sends to its shareholders, and copies of all
financial statements and regular, periodic or special reports (including
Forms 10K, 10Q and 8K) that the Company or any Subsidiary may make to, or
file with, the SEC; and
(e) promptly, such additional information regarding the
business, financial or corporate affairs of the Company or any Subsidiary as
the Agent or the Co-Administrative Agent, at the request of any Lender, may
from time to time reasonably request.
7.03 NOTICES. The Company shall promptly notify the Agent, the
Co-Administrative Agent and each Lender:
(a) of the occurrence of any Default or Event of Default,
and of the occurrence or existence of any event or circumstance that
foreseeably will become a Default or Event of Default;
(b) of any matter that has resulted or could reasonably be
expected to result in a Material Adverse Effect, including, to the extent so
applicable, (i) any breach or non-performance of, or any default under, a
Contractual Obligation of the Company or any Subsidiary; (ii) any dispute,
litigation, investigation, proceeding or suspension between the Company or
any Subsidiary and any Governmental Authority; (iii) the commencement of, or
any material development in, any litigation or proceeding affecting the
Company or any Subsidiary, including pursuant to any applicable Environmental
Laws; or (iv) any other Environmental Claims;
(c) of the occurrence of any of the following events
affecting the Company or any ERISA Affiliate (but in no event more than 10 days
after such event), and deliver to the Agent and each Lender a copy of any
notice with respect to such event that is filed with a Governmental Authority
and any notice delivered by a Governmental Authority to the Company or any
ERISA Affiliate with respect to such event:
(i) an ERISA Event;
(ii) a material increase in the Unfunded Pension
Liability of any Pension Plan;
<PAGE>
(iii) the adoption of, or the commencement of
contributions to, any Plan subject to Section 412 of the Code by the
Company or any ERISA Affiliate; or
(iv) the adoption of any amendment to a Plan subject to
Section 412 of the Code, if such amendment results in a material
increase in contributions or Unfunded Pension Liability;
(d) of any material change in accounting policies or
financial reporting practices by the Company or any of its consolidated
Subsidiaries;
(e) upon, but in no event later than 15 days after, any
officer of the Company or any Subsidiary becoming aware of (i) any and all
enforcement, investigation, cleanup, removal or other governmental or
regulatory actions instituted, completed or threatened against the Company or
any Subsidiary or any of their respective properties pursuant to any
applicable Environmental Laws which could reasonably be expected to have a
Material Adverse Effect, (ii) all other material Environmental Claims, and
(iii) any environmental or similar condition on any real property adjoining
or in the vicinity of the property of the Company or any Subsidiary that
could reasonably be anticipated to cause such property of the Company or such
Subsidiary or any part thereof to be subject to any material restrictions on
the ownership, occupancy, transferability or use of such property under any
Environmental Laws; and
(f) upon the request from time to time of the Agent, the
Swap Termination Values, together with a description of the method by which
such values were determined, relating to any then-outstanding Swap Contracts
to which the Company or any of its Subsidiaries is party.
Each notice under this Section shall be accompanied by a
written statement by a Responsible Officer setting forth details of the
occurrence referred to therein, and stating what action the Company or any
affected Subsidiary proposes to take with respect thereto and at what time.
Each notice under SUBSECTION 7.03(a) shall describe with particularity any
and all clauses or provisions of this Agreement or other Loan Document that
have been (or foreseeably will be) breached or violated.
7.04 PRESERVATION OF CORPORATE EXISTENCE, ETC. The Company
shall, and shall cause each Subsidiary to:
(a) preserve and maintain in full force and effect its
corporate existence and good standing under the laws of its state or
jurisdiction of incorporation;
(b) preserve and maintain in full force and effect all
governmental rights, privileges, qualifications, permits, licenses and
franchises necessary or desirable in the normal conduct of its business
except in connection with transactions permitted by SECTION 8.03 and sales of
assets permitted by SECTION 8.02;
(c) use reasonable efforts, in the ordinary course of
business, to preserve its business organization and goodwill; and
<PAGE>
(d) preserve or renew all of its registered patents,
trademarks, trade names and service marks, the non-preservation of which
could reasonably be expected to have a Material Adverse Effect.
The Company shall cause each Subsidiary which is a Wholly-Owned Subsidiary as
of the date hereof to continue to exist as a Wholly-Owned Subsidiary so long
as it shall be a Subsidiary.
7.05 MAINTENANCE OF PROPERTY. The Company shall maintain, and
shall cause each Subsidiary to maintain, and preserve all its property which
is used or useful in its business in good working order and condition,
ordinary wear and tear excepted, and make all necessary repairs thereto and
renewals and replacements thereof.
7.06 INSURANCE. The Company shall maintain, and shall cause each
Subsidiary to maintain, with financially sound and reputable independent
insurers, insurance with respect to its properties and business against loss
or damage of the kinds customarily insured against by Persons engaged in the
same or similar business, of such types and in such amounts as are
customarily carried under similar circumstances by such other Persons,
including workers' compensation insurance, public liability and property and
casualty insurance.
7.07 PAYMENT OF OBLIGATIONS. The Company shall, and shall cause
each Subsidiary to, pay and discharge as the same shall become due and
payable, all their respective obligations and liabilities, including:
(a) all tax liabilities, assessments and governmental
charges or levies upon it or its properties or assets, unless the same are
being contested in good faith by appropriate proceedings and adequate
reserves in accordance with GAAP are being maintained by the Company or such
Subsidiary; and
(b) all material lawful claims which, if unpaid, would by
law become a Lien upon its property in violation of SECTION 8.01.
7.08 COMPLIANCE WITH LAWS. The Company shall comply, and shall
cause each Subsidiary to comply, in all material respects with all
Requirements of Law of any Governmental Authority having jurisdiction over it
or its business (including the Federal Fair Labor Standards Act), except such
as may be contested in good faith or as to which a bona fide dispute may
exist.
7.09 COMPLIANCE WITH ERISA. The Company shall, and shall cause
each of its ERISA Affiliates to: (a) maintain each Plan in compliance in all
material respects with the applicable provisions of ERISA, the Code and other
federal or state law; (b) cause each Plan which is qualified under
Section 401(a) of the Code to maintain such qualification; and (c) make all
required contributions to any Plan subject to Section 412 of the Code.
7.10 INSPECTION OF PROPERTY AND BOOKS AND RECORDS. The Company
shall maintain and shall cause each Subsidiary to maintain proper books of
record and account, in which full, true and correct entries in conformity
with GAAP consistently applied shall be made of all financial
<PAGE>
transactions and matters involving the assets and business of the Company and
such Subsidiary. The Company shall permit, and shall cause each Subsidiary to
permit, representatives and independent contractors of the Agent or any
Lender to visit and inspect any of their respective properties, to examine
their respective corporate, financial and operating records, and make copies
thereof or abstracts therefrom, and to discuss their respective affairs,
finances and accounts with their respective directors, officers, and
independent public accountants, all at the expense of the Company and at such
reasonable times during normal business hours and as often as may be
reasonably desired, upon reasonable advance notice to the Company; PROVIDED,
HOWEVER, when an Event of Default exists the Agent or any Lender may do any
of the foregoing at the expense of the Company at any time during normal
business hours and without advance notice; PROVIDED, FURTHER, that neither
the Agent nor any Lender shall conduct any environmental testing of any owned
or leased facility of the Company or any Subsidiary without the prior written
consent of the Company, which shall not unreasonably be withheld.
7.11 ENVIRONMENTAL LAWS. (a) The Company shall, and shall cause
each Subsidiary to, conduct its operations and keep and maintain its property
in compliance with all Environmental Laws, the violation of which could
reasonably be expected to result in liability to the Company and its
Subsidiaries in excess of $1,500,000 in the aggregate (net of any payments
under insurance policies or indemnity agreements which the Company or such
Subsidiary reasonably expects to receive).
(b) Upon the written request of the Agent or any Lender,
the Company shall submit and cause each of its Subsidiaries to submit, to the
Agent with sufficient copies for each Lender, at the Company's sole cost and
expense, at reasonable intervals, a report providing an update of the status
of any environmental, health or safety compliance, hazard or liability issue
identified in any notice or report required pursuant to SUBSECTION 7.03(e),
that could, individually or in the aggregate, result in liability in excess
of $1,500,000 (net of any payments under insurance policies or indemnity
agreements which the Company or such Subsidiary reasonably expects to
receive).
7.12 USE OF PROCEEDS. The Company shall use the proceeds of the
Loans (a) to finance Acquisitions permitted hereunder and to pay certain fees
and expenses related thereto, (b) to refinance existing Indebtedness of the
Company and its Subsidiaries and (c) for working capital and other general
corporate purposes not in contravention of any Requirement of Law or of any
Loan Document.
7.13 FURTHER ASSURANCES. (a) The Company shall ensure that all
written information, exhibits and reports furnished to the Agent or the
Lenders do not and will not contain any untrue statement of a material fact
and do not and will not omit to state any material fact or any fact necessary
to make the statements contained therein not misleading in light of the
circumstances in which made, and will promptly disclose to the Agent and the
Lenders and correct any defect or error that may be discovered therein or in
any Loan Document or in the execution, acknowledgment or recordation thereof.
(b) Promptly upon request by the Agent or the Required
Lenders, the Company shall (and shall cause any of its Subsidiaries to) do,
execute, acknowledge, deliver,
<PAGE>
record, re-record, file, re-file, register and re-register, any and all such
further acts, certificates, assurances and other instruments the Agent or
such Lenders, as the case may be, may reasonably require from time to time in
order (i) to carry out more effectively the purposes of this Agreement or any
other Loan Document, and (ii) to better assure, convey, grant, assign,
transfer, preserve, protect and confirm to the Agent and Lenders the rights
granted or now or hereafter intended to be granted to the Lenders under any
Loan Document or under any other document executed in connection therewith.
7.14 ADDITIONAL GUARANTIES. Effective upon any Person becoming a
Domestic Subsidiary (other than any Domestic Subsidiary with total (gross)
revenues of less than 5% of the total (gross) revenues of the Company and its
Subsidiaries) such Person shall join as a guarantor under the Subsidiary
Guaranty pursuant to an amendment thereto in form and substance acceptable to
the Agent; PROVIDED, that any Domestic Subsidiary which does not become a
party to the Subsidiary Guaranty because it does not satisfy the requirement
above shall execute the Subsidiary Guaranty if it subsequently has sufficient
revenues to satisfy such requirement; PROVIDED, FURTHER, that if all Domestic
Subsidiaries which are not party to the Subsidiary Guaranty have total
(gross) revenues of 7.5% or more of the total (gross) revenues of the Company
and its Subsidiaries, then such Domestic Subsidiaries shall promptly execute
the Subsidiary Guaranty so that, upon such execution, such 7.5% threshold is
no longer exceeded. The Company shall promptly notify the Agent at any time
at which, in accordance with this SECTION 7.14, any Subsidiary shall be
required to join as a guarantor under the Subsidiary Guaranty.
ARTICLE VIII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any
Loan or other Obligation shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, unless the Required Lenders waive compliance
in writing:
8.01 LIMITATION ON LIENS. The Company shall not, and shall not
suffer or permit any Subsidiary to, directly or indirectly, make, create,
incur, assume or suffer to exist any Lien upon or with respect to any part of
its property, whether now owned or hereafter acquired, other than the
following ("PERMITTED LIENS"):
(a) any Lien existing on property of the Company or any
Subsidiary on the Closing Date and set forth in SCHEDULE 8.01 securing
Indebtedness outstanding on such date;
(b) any Lien created under any Loan Document;
(c) Liens for taxes, fees, assessments or other
governmental charges which are not delinquent or remain payable without
penalty, or to the extent that non-payment thereof is permitted by
SECTION 7.07, provided that no notice of lien has been filed or recorded under
the Code;
<PAGE>
(d) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other similar Liens arising in the ordinary
course of business which are not delinquent or remain payable without penalty
or which are being contested in good faith and by appropriate proceedings,
which proceedings have the effect of preventing the forfeiture or sale of the
property subject thereto;
(e) Liens (other than any Lien imposed by ERISA) consisting
of pledges or deposits required in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other
social security legislation;
(f) Liens on the property of the Company or its
Subsidiaries securing (i) the non-delinquent performance of bids, trade
contracts (other than for borrowed money), leases, statutory obligations,
(ii) Contingent Obligations in connection with performance bonds, surety
bonds and appeal bonds, and (iii) other non-delinquent obligations of a like
nature, in each case, incurred in the ordinary course of business; PROVIDED
that all such Liens in the aggregate could not reasonably be expected to
cause a Material Adverse Effect;
(g) Liens consisting of judgment or judicial attachment
liens, provided that the enforcement of such Liens is effectively stayed and
the obligations secured by all such Liens in the aggregate at any time
outstanding for the Company and its Subsidiaries do not exceed $1,000,000,
(h) easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary course of business which, in
the aggregate, are not substantial in amount, and which do not in any case
materially detract from the value of the property subject thereto or
interfere with the ordinary conduct of the businesses of the Company and its
Subsidiaries;
(i) Liens on assets of corporations which become
Subsidiaries after the date of this Agreement, PROVIDED, HOWEVER, that such
Liens existed at the time the respective corporations became Subsidiaries and
were not created in anticipation thereof and the obligations secured by all
such Liens in the aggregate at any time outstanding do not exceed
(i) $15,000,000, LESS (ii) amounts outstanding under paragraphs (j) and (n);
(j) purchase money security interests on any property
acquired or held by the Company or its Subsidiaries, securing Indebtedness
incurred or assumed for the purpose of financing all or any part of the cost
of acquiring such property; PROVIDED THAT (i) any such Lien attaches to such
property concurrently with or within 20 days after the acquisition thereof,
(ii) such Lien attaches solely to the property so acquired in such
transaction and other like assets in respect of which financing was provided
by the same lender to the obligor of such Indebtedness, (iii) the principal
amount of the debt secured thereby does not exceed 100% of the cost of such
property, and (iv) the principal amount of the Indebtedness secured by any
and all such purchase money security interests shall not at any time exceed,
together with Indebtedness permitted under SUBSECTION 8.05(d), (i) $15,000,000,
LESS (ii) amounts outstanding under paragraphs (i) and (n);
(k) Liens securing obligations in respect of capital leases
on assets subject to such leases, provided that such capital leases are
otherwise permitted hereunder;
<PAGE>
(l) Liens arising solely by virtue of any statutory or
common law provision relating to banker's liens, rights of set-off or similar
rights and remedies as to deposit accounts or other funds maintained with a
creditor depository institution; PROVIDED THAT (i) such deposit account is
not a dedicated cash collateral account and is not subject to restrictions
against access by the Company or any Subsidiary in excess of those set forth
by regulations promulgated by the FRB, and (ii) such deposit account is not
intended by the Company or any Subsidiary to provide collateral to the
depository institution;
(m) Liens on the Company's distribution facility, which
facility is expected to be completed by December 31, 2001, (i) securing a
mortgage loan, with an aggregate principal amount not to exceed the lesser of
100% of the cost of building such facility and $15,000,000 at any one time
outstanding, which loan is used to construct such facility, or (ii) granted
in connection with a sale/leaseback of such facility; and
(n) Liens securing other obligations of the Company and its
Subsidiaries not to exceed in the aggregate at any one time outstanding
(i) $15,000,000 less (ii) amounts outstanding under paragraphs (i) and (j).
8.02 DISPOSITION OF ASSETS. The Company shall not, and shall not
suffer or permit any Subsidiary to, directly or indirectly, (x) issue any
equity interests of any Subsidiary to any Person which is not the Company or
a Subsidiary or (y) sell, assign, lease, convey, transfer or otherwise
dispose of (whether in one or a series of transactions) any property,
including accounts and notes receivable, with or without recourse (each, an
"ASSET DISPOSITION"), or enter into any agreement to do any of the foregoing,
except:
(a) dispositions of inventory, or used, worn-out or surplus
equipment, all in the ordinary course of business;
(b) the sale of equipment to the extent that such equipment
is exchanged for credit against the purchase price of similar replacement
equipment, or the proceeds of such sale are reasonably promptly applied to
the purchase price of such replacement equipment; and
(c) dispositions not otherwise permitted hereunder which
are made for fair market value; PROVIDED, that (i) at the time of any
disposition, no Event of Default shall exist or shall result from such
disposition, (ii) at least 75% of the aggregate sales price from such
dispositions shall be paid in cash, and (iii) the aggregate value of all
assets so sold by the Company and its Subsidiaries after the date hereof,
together, shall not (x) represent more than 5% of the total assets of the
Company and its Subsidiaries, as would be shown in the consolidated financial
statements of the Company and its Subsidiaries as at the end of the fiscal
quarter next preceding the date on which such determination is made, or (y) be
responsible for more than 5% of the consolidated net income of the Company
and its Subsidiaries for the 12-month period ending as of the end of the
fiscal quarter next preceding the date of determination.
8.03 CONSOLIDATIONS AND MERGERS. The Company shall not, and
shall not suffer or permit any Subsidiary to, merge, consolidate with or
into, or convey, transfer, lease or otherwise
<PAGE>
dispose of (whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to
or in favor of any Person, except:
(a) any Subsidiary may merge with the Company, provided
that (i) the Company shall be the continuing or surviving corporation, or
with any one or more Subsidiaries, and (ii) if any transaction shall be
between a Subsidiary and a Wholly-Owned Subsidiary, the Wholly-Owned
Subsidiary shall be the continuing or surviving corporation; and
(b) any Subsidiary may sell all or substantially all of its
assets (upon voluntary liquidation or otherwise) to the Company or another
Wholly-Owned Subsidiary; and
(c) any Subsidiary may merge or consolidate with another
Person in order to effect an Acquisition permitted by SECTION 8.04.
8.04 LOANS AND INVESTMENTS. The Company shall not purchase or
acquire, or suffer or permit any Subsidiary to purchase or acquire, or make
any commitment therefor, any capital stock, equity interest, or any
obligations or other securities of, or any interest in, any Person, or make
or commit to make any Acquisitions, or make or commit to make any advance,
loan, extension of credit or capital contribution to or any other investment
in, any Person including any Affiliate of the Company (together,
"INVESTMENTS"), except for:
(a) Investments held by the Company or Subsidiary in the
form of Cash Equivalents;
(b) extensions of credit in the nature of accounts
receivable or notes receivable arising from the sale or lease of goods or
services in the ordinary course of business;
(c) Investments by the Company or any Subsidiary in
(i) Wholly-Owned Subsidiaries party to the Subsidiary Guaranty or unsecured
loans made by any Subsidiary to the Company or (ii) foreign Wholly-Owned
Subsidiaries or non-Wholly-Owned Subsidiaries in an aggregate amount not to
exceed $5,000,000 after the date hereof;
(d) Investments incurred in order to consummate
Acquisitions otherwise permitted herein, PROVIDED that (i) such Acquisitions
are undertaken in accordance with all applicable Requirements of Law, (ii) the
prior, effective written consent or approval to such Acquisition of the board
of directors or equivalent governing body of the acquiree is obtained,
(iii) the Company provides the Agent and the Lenders with a certificate at
least ten days prior to the consummation of any such Acquisition for which
the total consideration exceeds $20,000,000 evidencing that, after giving
effect to such Acquisition, no Default or Event of Default shall have
occurred and be continuing (as determined, in respect of SECTIONS 8.14 and
8.15, on a pro forma basis as of the last day of the preceding fiscal
quarter), and (iv) the Person or business which is the subject of such
Acquisition is in the same or similar line of business as the Company and its
Subsidiaries;
<PAGE>
(e) Investments of up to $10,000,000 in the aggregate in
Joint Ventures engaged in the same line of business in which the Company and
its Subsidiaries are engaged as of the date hereof; and
(f) Investments of a nature not contemplated by the
foregoing clauses hereof that are outstanding as of the Closing Date and set
forth in SCHEDULE 8.04 hereto.
8.05 LIMITATION ON INDEBTEDNESS. The Company shall not, and
shall not suffer or permit any Subsidiary to, create, incur, assume, suffer
to exist, or otherwise become or remain directly or indirectly liable with
respect to, any Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement;
(b) Indebtedness consisting of Contingent Obligations
permitted pursuant to SECTION 8.08;
(c) Indebtedness existing on the Closing Date and set forth
in SCHEDULE 8.05;
(d) Indebtedness incurred in connection with leases
permitted pursuant to SECTION 8.10;
(e) unsecured Indebtedness owed to the Company by any
Subsidiary or owed by the Company or any Subsidiary to a Subsidiary so long
as it is incurred in accordance with SECTION 8.04; and
(f) other Indebtedness incurred by the Company or any
Subsidiary from time to time; PROVIDED, that after giving effect to such
increase, SECTION 8.14 would not be violated (as determined on a pro forma
basis as of the last day of the previous fiscal quarter).
8.06 TRANSACTIONS WITH AFFILIATES. The Company shall not, and
shall not suffer or permit any Subsidiary to, enter into any transaction with
any Affiliate of the Company, except upon fair and reasonable terms no less
favorable to the Company or such Subsidiary than would obtain in a comparable
arm's-length transaction with a Person not an Affiliate of the Company or
such Subsidiary.
8.07 USE OF PROCEEDS. The Company shall not, and shall not
suffer or permit any Subsidiary to, use any portion of the proceeds of any
Loan or any Letter of Credit, directly or indirectly, (i) to purchase or
carry Margin Stock, (ii) to repay or otherwise refinance indebtedness of the
Company or others incurred to purchase or carry Margin Stock, (iii) to extend
credit for the purpose of purchasing or carrying any Margin Stock, or (iv) to
acquire any security in any transaction that is subject to Section 13 or 14
of the Exchange Act.
8.08 CONTINGENT OBLIGATIONS. The Company shall not, and shall
not suffer or permit any Subsidiary to, create, incur, assume or suffer to
exist any Contingent Obligations except:
(a) endorsements for collection or deposit in the ordinary
course of business;
<PAGE>
(b) Permitted Swap Obligations;
(c) Contingent Obligations of the Company and its
Subsidiaries existing as of the Closing Date and listed in SCHEDULE 8.08;
(d) Contingent Obligations with respect to Indebtedness of
the Company's Wholly-Owned Subsidiaries permitted pursuant to SECTION 8.05;
and
(e) other Contingent Obligations not exceeding at any time
$10,000,000 in the aggregate in respect of the Company and its Subsidiaries
together.
8.09 RESTRICTED PAYMENTS. The Company shall not, and shall not
suffer or permit any Subsidiary to, declare or make any dividend payment or
other distribution of assets, properties, cash, rights, obligations or
securities on account of any shares of any class of its capital stock, or
purchase, redeem or otherwise acquire for value any shares of its capital
stock or any warrants, rights or options to acquire such shares, now or
hereafter outstanding, except that any Subsidiary may declare and make
dividend payments and other distributions to its shareholders on a pro rata
basis and the Company may:
(a) declare and make dividend payments or other
distributions payable solely in its common stock;
(b) purchase, redeem or otherwise acquire shares of its
common stock or warrants or options to acquire any such shares with the
proceeds received from the substantially concurrent issue of new shares of
its common stock; and
(c) declare or pay cash dividends to its stockholders and
purchase, redeem or otherwise acquire shares of its capital stock or
warrants, rights or options to acquire any such shares for cash and computed
on a cumulative consolidated basis; PROVIDED, that, (i) all such payments
made in any period of four fiscal quarters (ending with the fiscal quarter in
which any such payment is made) shall not exceed 50% of the Company's
consolidated net income for the period of four fiscal quarters ending with
the second preceding fiscal quarter prior to the fiscal quarter in which such
payment is made (if positive), and (ii) immediately after giving effect to
such proposed action, no Default or Event of Default would exist (determined
with respect to SECTIONS 8.14 and 8.15 on a pro forma basis as of the last
day of the previous fiscal quarter).
8.10 ERISA. The Company shall not, and shall not suffer or permit any
of its Subsidiaries to, (i) terminate any Plan subject to Title IV of ERISA so
as to result in any material (in the opinion of the Required Lenders) liability
to the Company or any ERISA Affiliate, (ii) permit to exist any ERISA Event or
any other event or condition, which presents the risk of a material (in the
opinion of the Required Lenders) liability to any member of the Controlled
Group, (iii) make a complete or partial withdrawal (within the meaning of ERISA
Section 4201) from any Multiemployer Plan so as to result in any material (in
the opinion of the Required Lenders) liability to the Company or any ERISA
Affiliate or, (iv) enter into any new Plan or modify any existing Plan so as to
increase its obligations thereunder which could result in any
<PAGE>
material (in the opinion of the Required Lenders) liability to any member of
the Controlled Group.
8.11 CHANGE IN BUSINESS. The Company shall not, and shall not
suffer or permit any Subsidiary to, engage in any material line of business
substantially different from those lines of business carried on by the
Company and its Subsidiaries on the date hereof.
8.12 ACCOUNTING CHANGES. The Company shall not, and shall not
suffer or permit any Subsidiary to, (a) make any significant change in
accounting treatment or reporting practices, except as required by GAAP, or
(b) change the fiscal year of the Company or of any Subsidiary; PROVIDED,
that the fiscal year of the Company and its Subsidiaries may be changed to a
year ending December 31.
8.13 AMENDMENTS TO CHARTER. The Company will not, nor will it
permit any Subsidiary to, (a) make any amendment or modification to any terms
or provisions of its Certificate or Articles of Incorporation or bylaws which
is materially adverse to the Agent or the Lenders without the prior written
consent of the Required Lenders or (b) issue any preferred stock.
8.14 DEBT TO CAPITALIZATION RATIO. The Company shall not, as of
the last day of any fiscal quarter, permit its Debt to Capitalization Ratio
to be greater than .50 to 1.0.
8.15 FIXED CHARGE COVERAGE RATIO. The Company shall not, as of the
last day of any fiscal quarter, permit its ratio of (a) EBITDAR for the
period of four fiscal quarters then ending to (b) Fixed Charges for such four
fiscal quarter period to be less than 1.5 to 1.0.
8.16 RESTRICTIVE AGREEMENTS. The Company shall not, nor shall it
permit any of its Subsidiaries to, enter into any indenture, agreement,
instrument or other arrangement which directly or indirectly prohibits or
restrains, or has the effect of prohibiting or restraining, or imposes
materially adverse conditions upon, the ability of any Subsidiary to (a) pay
dividends or make other distributions (i) on its Capital Stock or (ii) with
respect to any other interest or participation in, or measured by, its
profits, (b) make loans or advances to the Company or any Subsidiary, (c)
repay loans or advances from the Company or any Subsidiary or (d) transfer
any of its properties or assets to the Company or any Subsidiary.
8.17 YEAR 2000. The Company will take, and will cause each of its
Subsidiaries to take, all such actions as are reasonably necessary to
successfully implement a program to assure that the Year 2000 Problem will
not have a Material Adverse Effect. At the request of the Agent, the Company
will provide a description of such program, together with any updates or
progress reports with respect thereto.
ARTICLE IX
EVENTS OF DEFAULT
9.01 EVENT OF DEFAULT. Any of the following shall constitute an
"EVENT OF DEFAULT":
<PAGE>
(a) NON-PAYMENT. The Company fails to pay, (i) when and
as required to be paid herein, any amount of principal of any Loan or of any
L/C Obligation, or (ii) within five (5) days after the same becomes due, any
interest, fee or any other amount payable hereunder or under any other Loan
Document; or
(b) REPRESENTATION OR WARRANTY. Any representation or
warranty by the Company or any Subsidiary made or deemed made herein or in
any other Loan Document, or contained in any certificate, document or
financial or other statement by the Company, any Subsidiary, or any
Responsible Officer, furnished at any time under this Agreement, or in or
under any other Loan Document, is incorrect in any material respect on or as
of the date made or deemed made; or
(c) SPECIFIC DEFAULTS. The Company fails to perform or
observe any term, covenant or agreement contained in any of SECTION 7.03 or
in ARTICLE VIII; or
(d) OTHER DEFAULTS. The Company or any Subsidiary party
thereto fails to perform or observe any other term or covenant contained in
this Agreement or any other Loan Document, and such default shall continue
unremedied for a period of 30 days after the earlier of (i) the date upon
which any senior officer of the Company knew or reasonably should have known
of such failure or (ii) the date upon which written notice thereof is given
to the Company by the Agent or any Lender; or
(e) CROSS-DEFAULT. (i) The Company or any Subsidiary (A)
fails to make any payment in respect of any Indebtedness (other than
Specified Acquisition Debt) or Contingent Obligation (other than in respect
of Swap Contracts), having an aggregate principal amount (including undrawn
committed or available amounts and including amounts owing to all creditors
under any combined or syndicated credit arrangement) of more than $1,000,000
when due (whether by scheduled maturity, required prepayment, acceleration,
demand, or otherwise) and such failure continues after the applicable grace
or notice period, if any, specified in the relevant document on the date of
such failure; or (B) fails to perform or observe any other condition or
covenant, or any other event shall occur or condition exist, under any
agreement or instrument relating to any such Indebtedness (other than
Specified Acquisition Debt) or Contingent Obligation, and such failure
continues after the applicable grace or notice period, if any, specified in
the relevant document on the date of such failure if the effect of such
failure, event or condition is to cause, or to permit the holder or holders
of such Indebtedness or beneficiary or beneficiaries of such Indebtedness (or
a trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause such Indebtedness to be declared to be due and
payable, or to be required to be repurchased, prior to its stated maturity,
or such Contingent Obligation to become payable or cash collateral in respect
thereof to be demanded; or (ii) there occurs under any Swap Contract an Early
Termination Date (as defined in such Swap Contract) resulting from (1) any
event of default under such Swap Contract as to which the Company or any
Subsidiary is the Defaulting Party (as defined in such Swap Contract) or (2)
any Termination Event (as so defined) as to which the Company or any
Subsidiary is an Affected Party (as so defined) and, in either event, the
Swap Termination Value owed by the Company or such Subsidiary as a result
thereof is greater than $1,000,000; PROVIDED, that any Event of Default
arising under clause (i)(B) in respect of Indebtedness evidenced or governed
by either Note
<PAGE>
Agreement shall be determined without regard to any amendment
to or waiver of any provision of such Note Agreement or any related document
or instrument entered into by the parties thereto in anticipation of,
concurrent with or subsequent to the occurrence of any such event or
circumstance; or
(f) INSOLVENCY; VOLUNTARY PROCEEDINGS. The Company or any
Subsidiary (i) ceases or fails to be solvent, or generally fails to pay, or
admits in writing its inability to pay, its debts as they become due, subject
to applicable grace periods, if any, whether at stated maturity or otherwise;
(ii) voluntarily ceases to conduct its business in the ordinary course; (iii)
commences any Insolvency Proceeding with respect to itself; or (iv) takes any
action to effectuate or authorize any of the foregoing; or
(g) INVOLUNTARY PROCEEDINGS. (i) Any involuntary
Insolvency Proceeding is commenced or filed against the Company or any
Subsidiary, or any writ, judgment, warrant of attachment, execution or
similar process, is issued or levied against a substantial part of the
Company's or any Subsidiary's properties, and any such proceeding or petition
shall not be dismissed, or such writ, judgment, warrant of attachment,
execution or similar process shall not be released, vacated or fully bonded
within 60 days after commencement, filing or levy; (ii) the Company or any
Subsidiary admits the material allegations of a petition against it in any
Insolvency Proceeding, or an order for relief (or similar order under
non-U.S. law) is ordered in any Insolvency Proceeding; or (iii) the Company
or any Subsidiary acquiesces in the appointment of a receiver, trustee,
custodian, conservator, liquidator, mortgagee in possession (or agent
therefor), or other similar Person for itself or a substantial portion of its
property or business; or
(h) ERISA. (i) An ERISA Event shall occur with respect to
a Pension Plan or Multiemployer Plan which has resulted or could reasonably
be expected to result in liability of the Company or any ERISA Affiliate
under Title IV of ERISA to such Pension Plan or Multiemployer Plan or to the
PBGC in an aggregate amount for all such Pension Plans and Multiemployer
Plans in excess of $1,000,000, less any outstanding amounts under clauses
(ii) and (iii); (ii) the aggregate amount of Unfunded Pension Liability among
all Pension Plans and Multiemployer Plans at any time exceeds $1,000,000,
less any outstanding amounts under clauses (i) and (iii) (determined, in
respect of Multiemployer Plans, by reference to the Unfunded Pension
Liability for which the Company or any ERISA Affiliate may be liable); or
(iii) the Company or any ERISA Affiliate shall fail to pay when due, after
the expiration of any applicable grace period, any installment payment with
respect to its withdrawal liability under Section 4201 of ERISA under a
Multiemployer Plan in an aggregate amount in excess of $1,000,000, less any
outstanding amounts under clauses (i) and (ii); or
(i) MONETARY JUDGMENTS. One or more non-interlocutory
judgments, non-interlocutory orders, decrees or arbitration awards is entered
against the Company or any Subsidiary involving in the aggregate a liability
(to the extent not covered by independent third-party insurance as to which
the insurer does not dispute coverage) as to any single or related series of
transactions, incidents or conditions, of $1,000,000 or more, and the same
shall remain unsatisfied, unvacated and unstayed pending appeal for a period
of 10 days after the entry thereof; or
<PAGE>
(j) NON-MONETARY JUDGMENTS. Any non-monetary
judgment, order or decree is entered against the Company or any Subsidiary
which does or would reasonably be expected to have a Material Adverse Effect,
and there shall be any period of 10 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(k) CHANGE OF CONTROL. There occurs any Change of
Control; or
(l) LOSS OF LICENSES. Any Governmental Authority revokes
or fails to renew any material license, permit or franchise of the Company or
any Subsidiary, or the Company or any Subsidiary for any reason loses any
material license, permit or franchise, or the Company or any Subsidiary
suffers the imposition of any restraining order, escrow, suspension or
impound of funds in connection with any proceeding (judicial or
administrative) with respect to any material license, permit or franchise; or
(m) GUARANTOR DEFAULTS. Any Guarantor fails in any
material respect to perform or observe any term, covenant or agreement in the
Subsidiary Guaranty; or the Subsidiary Guaranty is for any reason partially
(including with respect to future advances) or wholly revoked or invalidated,
or otherwise ceases to be in full force and effect, or any Guarantor or any
other Person contests in any manner the validity or enforceability thereof or
denies that it has any further liability or obligation thereunder; or any
event described at subsections (f) or (g) of this Section occurs with respect
to any Guarantor.
9.02 REMEDIES. If any Event of Default occurs, the Agent shall, at
the request of, or may, with the consent of, the Required Lenders,
(a) declare the Commitment of each Lender to make Loans
and any obligation of the Issuer to Issue Letters of Credit to be terminated,
whereupon such Commitments and obligation shall be terminated;
(b) declare an amount equal to the maximum aggregate
amount that is or at any time thereafter may become available for drawing
under any outstanding Letters of Credit (whether or not any beneficiary shall
have presented, or shall be entitled at such time to present, the drafts or
other documents required to draw under such Letters of Credit) to be
immediately due and payable, and declare the unpaid principal amount of all
outstanding Loans, all interest accrued and unpaid thereon, and all other
amounts owing or payable hereunder or under any other Loan Document to be
immediately due and payable, without presentment, demand, protest or other
notice of any kind, all of which are hereby expressly waived by the Company;
and
(c) exercise on behalf of itself and the Lenders all
rights and remedies available to it and the Lenders under the Loan Documents
or applicable law;
PROVIDED, HOWEVER, that upon the occurrence of any event specified in
subsection (f) or (g) of SECTION 9.01 (in the case of clause (i) of
subsection (g) upon the expiration of the 60-day period mentioned therein),
the obligation of each Lender to make Loans and any obligation of the Issuer
to Issue Letters of Credit shall automatically terminate and the unpaid
principal amount of all
<PAGE>
outstanding Loans and all interest and other amounts as aforesaid shall
automatically become due and payable without further act of the Agent, the
Issuer or any Lender.
9.03 RIGHTS NOT EXCLUSIVE. The rights provided for in this
Agreement and the other Loan Documents are cumulative and are not exclusive
of any other rights, powers, privileges or remedies provided by law or in
equity, or under any other instrument, document or agreement now existing or
hereafter arising.
ARTICLE X
THE AGENT AND THE CO-ADMINISTRATIVE AGENT
10.01 APPOINTMENT AND AUTHORIZATION; "AGENT"; "CO-ADMINISTRATIVE
AGENT". (a) Each Lender hereby irrevocably (subject to SECTION 10.09)
appoints, designates and authorizes each of the Agent and the
Co-Administrative Agent to take such action on its behalf under the
provisions of this Agreement and each other Loan Document and to exercise
such powers and perform such duties as are expressly delegated to it by the
terms of this Agreement or any other Loan Document, together with such powers
as are reasonably incidental thereto. Notwithstanding any provision to the
contrary contained elsewhere in this Agreement or in any other Loan Document,
neither the Agent nor the Co-Administrative Agent shall have any duties or
responsibilities, except those expressly set forth herein, nor shall the
Agent or the Co-Administrative Agent have or be deemed to have any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the Agent or
the Co-Administrative Agent. Without limiting the generality of the foregoing
sentence, the use of the term "agent" in this Agreement with reference to the
Agent or the Co-Administrative Agent is not intended to connote any fiduciary
or other implied (or express) obligations arising under agency doctrine of
any applicable law. Instead, such term is used merely as a matter of market
custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties.
(b) The Issuer shall act on behalf of the Lenders with
respect to any Letters of Credit Issued by it and the documents associated
therewith until such time and except for so long as the Agent or the
Co-Administrative Agent may agree at the request of the Required Lenders to
act for the Issuer with respect thereto; PROVIDED, HOWEVER, that the Issuer
shall have all of the benefits and immunities (i) provided to the Agent and
the Co-Administrative Agent in this ARTICLE X with respect to any acts taken
or omissions suffered by the Issuer in connection with Letters of Credit
Issued by it or proposed to be Issued by it and the application and
agreements for letters of credit pertaining to the Letters of Credit as fully
as if the term "Agent", as used in this ARTICLE X, included the Issuer with
respect to such acts or omissions, and (ii) as additionally provided in this
Agreement with respect to the Issuer.
10.02 DELEGATION OF DUTIES. The Agent and the Co-Administrative
Agent may execute any of their duties under this Agreement or any other Loan
Document by or through agents, employees or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters
<PAGE>
pertaining to such duties. Neither the Agent nor the Co-Administrative Agent
shall be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects with reasonable care.
10.03 LIABILITY OF AGENT AND CO-ADMINISTRATIVE AGENT. None of the
Agent-Related Persons shall (a) be liable for any action taken or omitted to
be taken by any of them under or in connection with this Agreement or any
other Loan Document or the transactions contemplated hereby (except for its
own gross negligence or willful misconduct), or (b) be responsible in any
manner to any of the Lenders for any recital, statement, representation or
warranty made by the Company or any Subsidiary or Affiliate of the Company,
or any officer thereof, contained in this Agreement or in any other Loan
Document, or in any certificate, report, statement or other document referred
to or provided for in, or received by the Agent under or in connection with,
this Agreement or any other Loan Document, or for the value of or title to
any Collateral, or the validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other Loan Document, or for any
failure of the Company or any other party to any Loan Document to perform its
obligations hereunder or thereunder. No Agent-Related Person shall be under
any obligation to any Lender to ascertain or to inquire as to the observance
or performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the properties, books or
records of the Company or any of the Company's Subsidiaries or Affiliates.
10.04 RELIANCE BY AGENT AND CO-ADMINISTRATIVE AGENT. (a) The Agent
and the Co-Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or telephone
message, statement or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper
Person or Persons, and upon advice and statements of legal counsel (including
counsel to the Company), independent accountants and other experts selected
by the Agent and the Co-Administrative Agent. The Agent and the
Co-Administrative Agent shall be fully justified in failing or refusing to
take any action under this Agreement or any other Loan Document unless they
shall first receive such advice or concurrence of the Required Lenders as
they deem appropriate and, if they so request, they shall first be
indemnified to their satisfaction by the Lenders against any and all
liability and expense which may be incurred by them by reason of taking or
continuing to take any such action. The Agent and the Co-Administrative Agent
shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement or any other Loan Document in accordance with a
request or consent of the Required Lenders and such request and any action
taken or failure to act pursuant thereto shall be binding upon all of the
Lenders.
(b) For purposes of determining compliance with the
conditions specified in SECTION 5.01, each Lender that has executed this
Agreement shall be deemed to have consented to, approved or accepted or to be
satisfied with, each document or other matter either sent by the Agent or the
Co-Administrative Agent to such Lender for consent, approval, acceptance or
satisfaction, or required thereunder to be consented to or approved by or
acceptable or satisfactory to such Lender.
<PAGE>
10.05 NOTICE OF DEFAULT. Neither the Agent nor the
Co-Administrative Agent shall be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default, except with respect to
defaults in the payment of principal, interest and fees required to be paid
to the Agent or the Co-Administrative Agent for the account of the Lenders,
unless the Agent and the Co-Administrative Agent shall have received written
notice from a Lender or the Company referring to this Agreement, describing
such Default or Event of Default and stating that such notice is a "notice of
default". The Agent and the Co-Administrative Agent will notify the Lenders
of their receipt of any such notice. The Agent shall take such action with
respect to such Default or Event of Default as may be requested by the
Required Lenders in accordance with ARTICLE IX; PROVIDED, HOWEVER, that
unless and until the Agent has received any such request, the Agent may (but
shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it shall deem
advisable or in the best interest of the Lenders.
10.06 CREDIT DECISION. Each Lender acknowledges that none of the
Agent-Related Persons has made any representation or warranty to it, and that
no act by the Agent or the Co-Administrative Agent hereinafter taken,
including any review of the affairs of the Company and its Subsidiaries,
shall be deemed to constitute any representation or warranty by any
Agent-Related Person to any Lender. Each Lender represents to the Agent and
the Co-Administrative Agent that it has, independently and without reliance
upon any Agent-Related Person and based on such documents and information as
it has deemed appropriate, made its own appraisal of and investigation into
the business, prospects, operations, property, financial and other condition
and creditworthiness of the Company and its Subsidiaries, the value of and
title to any Collateral, and all applicable bank regulatory laws relating to
the transactions contemplated hereby, and made its own decision to enter into
this Agreement and to extend credit to the Company hereunder. Each Lender
also represents that it will, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement
and the other Loan Documents, and to make such investigations as it deems
necessary to inform itself as to the business, prospects, operations,
property, financial and other condition and creditworthiness of the Company.
Except for notices, reports and other documents expressly herein required to
be furnished to the Lenders by the Agent or the Co-Administrative Agent,
neither the Agent nor the Co-Administrative Agent shall have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of the Company which may come into the
possession of any of the Agent-Related Persons.
10.07 INDEMNIFICATION OF AGENT AND CO-ADMINISTRATIVE AGENT. Whether
or not the transactions contemplated hereby are consummated, the Lenders shall
indemnify upon demand the Agent-Related Persons (to the extent not reimbursed by
or on behalf of the Company and without limiting the obligation of the Company
to do so), in accordance with such Lender's Pro Rata Share of all Loans and
Commitments, from and against any and all Indemnified Liabilities; PROVIDED,
HOWEVER, that no Lender shall be liable for the payment to the Agent-Related
Persons of any portion of such Indemnified Liabilities resulting from such
Person's gross negligence or willful misconduct. Without limitation of the
foregoing, each Lender shall reimburse each of the
<PAGE>
Agent and the Co-Administrative Agent upon demand for its ratable share of
any costs or out-of-pocket expenses (including Attorney Costs) incurred by
the Agent or the Co-Administrative Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement, any
other Loan Document, or any document contemplated by or referred to herein,
to the extent that the Agent or the Co-Administrative Agent is not reimbursed
for such expenses by or on behalf of the Company. The undertaking in this
Section shall survive the payment of all Obligations hereunder and the
resignation or replacement of the Agent or the Co-Administrative Agent.
10.08 AGENT IN INDIVIDUAL CAPACITY. BofA, LaSalle and their
Affiliates may make loans to, issue letters of credit for the account of,
accept deposits from, acquire equity interests in and generally engage in any
kind of banking, trust, financial advisory, underwriting or other business
with the Company and its Subsidiaries and Affiliates as though BofA were not
the Agent hereunder and as though LaSalle were not the Co-Administrative
Agent or the Issuer hereunder and without notice to or consent of the
Lenders. The Lenders acknowledge that, pursuant to such activities, BofA,
LaSalle or their Affiliates may receive information regarding the Company or
its Affiliates (including information that may be subject to confidentiality
obligations in favor of the Company or such Subsidiary) and acknowledge that
neither the Agent nor the Co-Administrative Agent shall be under any
obligation to provide such information to them. With respect to its Loans,
BofA and LaSalle shall have the same rights and powers under this Agreement
as any other Lender and may exercise the same as though it were not the Agent
or the Issuer or the Co-Administrative Agent, respectively.
10.09 SUCCESSOR AGENT. Either the Agent or the Co-Administrative
Agent may, and at the request of the Required Lenders shall, resign upon 30
days' notice to the Lenders. If the Agent or the Co-Administrative Agent
resigns under this Agreement, the Required Lenders shall appoint from among
the Lenders a successor agent or co-administrative agent for the Lenders
subject, so long as no Event of Default has occurred and is then continuing,
to the consent of the Company, which shall not be unreasonably withheld or
delayed. If no successor agent is appointed prior to the effective date of
the resignation of the Agent or the Co-Administrative Agent, the Agent or the
Co-Administrative Agent may appoint, after consulting with the Lenders and
the Company, a successor agent from among the Lenders. Upon the acceptance of
its appointment as successor agent hereunder, such successor agent or
co-administrative agent shall succeed to all the rights, powers and duties of
the retiring Agent and the term "Agent" or "Co-Administrative Agent", as
applicable, shall mean such successor agent and the retiring Agent's or
Co-Administrative Agent's appointment, powers and duties as Agent shall be
terminated. After any retiring Agent's or Co-Administrative Agent's
resignation hereunder as Agent or Co-Administrative Agent, the provisions of
this ARTICLE X and SECTIONS 11.04 and 11.05 shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was Agent or
Co-Administrative Agent under this Agreement. If no successor agent has
accepted appointment as Agent by the date which is 30 days following a
retiring Agent's or Co-Administrative Agent's notice of resignation, the
retiring Agent's or Co-Administrative Agent's resignation shall nevertheless
thereupon become effective and the Co-Administrative Agent shall perform all
of the duties of the Agent, or the Agent shall perform all of the duties of
the Co-Administrative
<PAGE>
Agent, as applicable, hereunder until such time, if any, as the Required
Lenders appoint a successor agent or co-administrative agent as provided for
above. Notwithstanding the foregoing, however, LaSalle may not be removed as
the Co-Administrative Agent at the request of the Required Lenders unless
LaSalle shall also simultaneously be replaced as an "Issuer" (if any letters
of credit Issued by LaSalle are then outstanding) hereunder pursuant to
documentation in form and substance reasonably satisfactory to LaSalle.
10.10 WITHHOLDING TAX. (a) If any Lender is a "foreign corporation,
partnership or trust" within the meaning of the Code and such Lender claims
exemption from, or a reduction of, U.S. withholding tax under Sections 1441 or
1442 of the Code, such Lender agrees with and in favor of the Agent and the
Company, to deliver to the Agent and the Company:
(i) if such Lender claims an exemption from, or a
reduction of, withholding tax under a United States tax treaty, two
properly completed and executed copies of IRS Form 1001 before the
payment of any interest in the first calendar year and before the
payment of any interest in each third succeeding calendar year
during which interest may be paid under this Agreement;
(ii) if such Lender claims that interest paid under this
Agreement is exempt from United States withholding tax because it is
effectively connected with a United States trade or business of such
Lender, two properly completed and executed copies of IRS Form 4224
before the payment of any interest is due in the first taxable year
of such Lender and in each succeeding taxable year of such Lender
during which interest may be paid under this Agreement; and
(iii) such other form or forms as may be required under
the Code or other laws of the United States as a condition to
exemption from, or reduction of, United States withholding tax.
Such Lender agrees to promptly notify the Agent and the Company of any change
in circumstances which would modify or render invalid any claimed exemption
or reduction.
(b) If any Lender claims exemption from, or reduction of,
withholding tax under a United States tax treaty by providing IRS Form 1001
and such Lender sells, assigns, grants a participation in, or otherwise
transfers all or part of the Obligations of the Company to such Lender, such
Lender agrees to notify the Agent of the percentage amount in which it is no
longer the beneficial owner of Obligations of the Company to such Lender. To
the extent of such percentage amount, the Agent will treat such Lender's IRS
Form 1001 as no longer valid.
(c) If any Lender claiming exemption from United
States withholding tax by filing IRS Form 4224 with the Agent sells, assigns,
grants a participation in, or otherwise transfers all or part of the
Obligations of the Company to such Lender, such Lender agrees to undertake
sole responsibility for complying with the withholding tax requirements
imposed by Sections 1441 and 1442 of the Code.
<PAGE>
(d) If any Lender is entitled to a reduction in the
applicable withholding tax, the Agent may withhold from any interest payment
to such Lender an amount equivalent to the applicable withholding tax after
taking into account such reduction. However, if the forms or other
documentation required by subsection (a) of this Section are not delivered to
the Agent, then the Agent may withhold from any interest payment to such
Lender not providing such forms or other documentation an amount equivalent
to the applicable withholding tax imposed by Sections 1441 and 1442 of the
Code, without reduction.
(e) If the IRS or any other Governmental Authority of the
United States or other jurisdiction asserts a claim that the Agent did not
properly withhold tax from amounts paid to or for the account of any Lender
(because the appropriate form was not delivered or was not properly executed,
or because such Lender failed to notify the Agent of a change in
circumstances which rendered the exemption from, or reduction of, withholding
tax ineffective, or for any other reason) such Lender shall indemnify the
Agent fully for all amounts paid, directly or indirectly, by the Agent as tax
or otherwise, including penalties and interest, and including any taxes
imposed by any jurisdiction on the amounts payable to the Agent under this
Section, together with all costs and expenses (including Attorney Costs). The
obligation of the Lenders under this subsection shall survive the payment of
all Obligations and the resignation or replacement of the Agent.
10.11 CO-AGENTS. None of the Lenders identified on the facing
page or signature pages of this Agreement as a "co-agent" shall have any
right, power, obligation, liability, responsibility or duty under this
Agreement other than those applicable to all Lenders as such. Without
limiting the foregoing, none of the Lenders so identified as a "co-agent"
shall have or be deemed to have any fiduciary relationship with any Lender.
Each Lender acknowledges that it has not relied, and will not rely, on any of
the Lenders so identified in deciding to enter into this Agreement or in
taking or not taking action hereunder.
ARTICLE XI
MISCELLANEOUS
11.01 AMENDMENTS AND WAIVERS. No amendment or waiver of any
provision of this Agreement or any other Loan Document (other than any Rate
Swap Document), and no consent with respect to any departure by the Company
or any applicable Subsidiary therefrom, shall be effective unless the same
shall be in writing and signed by the Required Lenders (or by the Agent at
the written request of the Required Lenders) and the Company and acknowledged
by the Agent, and then any such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given; PROVIDED,
HOWEVER, that no such waiver, amendment, or consent shall, unless in writing
and signed by all the Lenders and the Company and acknowledged by the Agent,
do any of the following:
(a) increase or extend the Commitment of any Lender (or
reinstate any Commitment terminated pursuant to SECTION 9.02);
<PAGE>
(b) postpone or delay any date fixed by this Agreement or
any other Loan Document for any payment of principal, interest, fees or other
amounts due to the Lenders (or any of them) or the Issuer hereunder or under
any other Loan Document;
(c) reduce the principal of, or the rate of interest
specified herein on any Loan, or (subject to clause (iii) below) any fees or
other amounts payable hereunder or under any other Loan Document;
(d) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Loans which is required for the
Lenders or any of them to take any action hereunder or reduce the percentage
specified in the definition of "Required Lenders";
(e) amend this Section, or SECTION 2.15, or any provision
herein providing for consent or other action by all Lenders; or
(f) discharge all or substantially all of the Guarantors;
and, PROVIDED FURTHER, that (i) no amendment, waiver or consent shall, unless
in writing and signed by the Issuer in addition to the Required Lenders or
all the Lenders, as the case may be, affect the rights or duties of the
Issuer under this Agreement or any L/C-Related Document relating to any
Letter of Credit Issued or to be Issued by it, (ii) no amendment, waiver or
consent shall, unless in writing and signed by the Agent or the
Co-Administrative Agent in addition to the Required Lenders or all the
Lenders, as the case may be, affect the rights or duties of the Agent or the
Co-Administrative Agent under this Agreement or any other Loan Document,
(iii) no amendment, waiver or consent shall, unless in writing and signed by
the Swing Line Lender in addition to the Required Lenders or all the Lenders,
as the case may be, affect the rights or duties of the Swing Line Lender
under this Agreement or any other Loan Document, and (iv) either Fee Letter
may be amended, or rights or privileges thereunder waived, in a writing
executed by the parties thereto.
11.02 NOTICES. (a) All notices, requests, consents, approvals,
waivers and other communications shall be in writing (including, unless the
context expressly otherwise provides, by facsimile transmission, provided
that any matter transmitted by the Company by facsimile (i) shall be
immediately confirmed by a telephone call to the recipient at the number
specified on SCHEDULE 11.02, and (ii) shall be followed promptly by delivery
of a hard copy original thereof) and mailed, faxed or delivered, to the
address or facsimile number specified for notices on SCHEDULE 11.02; or, as
directed to the Company or the Agent, to such other address as shall be
designated by such party in a written notice to the other parties, and as
directed to any other party, at such other address as shall be designated by
such party in a written notice to the Company and the Agent.
(b) All such notices, requests and communications shall,
when transmitted by overnight delivery, or faxed, be effective when delivered
for overnight (next-day) delivery, or transmitted in legible form by
facsimile machine, respectively, or if mailed, upon the third Business Day
after the date deposited into the U.S. mail, or if delivered, upon delivery;
except that notices pursuant to ARTICLE II, III or X to the Agent or the
Co-Administrative Agent shall not
<PAGE>
be effective until actually received by the Agent or the Co-Administrative
Agent, and notices pursuant to ARTICLE III to the Issuer shall not be
effective until actually received by the Issuer at the address specified on
SCHEDULE 11.02.
(c) Any agreement of the Agent and the Lenders herein to
receive certain notices by telephone or facsimile is solely for the
convenience and at the request of the Company. The Agent and the Lenders
shall be entitled to rely on the authority of any Person purporting to be a
Person authorized by the Company to give such notice and the Agent and the
Lenders shall not have any liability to the Company or other Person on
account of any action taken or not taken by the Agent or the Lenders in
reliance upon such telephonic or facsimile notice. The obligation of the
Company to repay the Loans and L/C Obligations shall not be affected in any
way or to any extent by any failure by the Agent, the Co-Administrative Agent
and the Lenders to receive written confirmation of any telephonic or
facsimile notice or the receipt by the Agent, the Co-Administrative Agent and
the Lenders of a confirmation which is at variance with the terms understood
by the Agent, the Co-Administrative Agent and the Lenders to be contained in
the telephonic or facsimile notice.
11.03 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and
no delay in exercising, on the part of the Agent, the Co-Administrative Agent
or any Lender, any right, remedy, power or privilege hereunder, shall operate
as a waiver thereof; nor shall any single or partial exercise of any right,
remedy, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, remedy, power or privilege.
11.04 COSTS AND EXPENSES. The Company shall:
(a) whether or not the transactions contemplated hereby
are consummated, pay or reimburse BofA (including in its capacity as Agent)
and the Arranger within five Business Days after demand (subject to
SUBSECTION 5.01(e)) for all costs and expenses incurred by BofA (including in
its capacity as the Agent) and the Arranger in connection with the
development, preparation, delivery, administration, syndication and execution
of, and any amendment, supplement, waiver or modification to (in each case,
whether or not consummated), this Agreement, any Loan Document and any other
documents prepared in connection herewith or therewith, and the consummation
of the transactions contemplated hereby and thereby, including reasonable
Attorney Costs incurred by BofA (including in its capacity as the Agent) and
the Arranger with respect thereto;
(b) pay or reimburse the Agent, the Co-Administrative
Agent, the Arranger and each Lender within five Business Days after demand
(subject to SUBSECTION 5.01(e)) for all costs and expenses (including
Attorney Costs) incurred by them in connection with the enforcement,
attempted enforcement, or preservation of any rights or remedies under this
Agreement or any other Loan Document during the existence of an Event of
Default or after acceleration of the Loans (including in connection with any
"workout" or restructuring regarding the Loans, and including in any
Insolvency Proceeding or appellate proceeding); and
(c) pay or reimburse BofA (including in its capacity as the
Agent) within five Business Days after demand (subject to SUBSECTION 5.01(e))
for all reasonable appraisal
<PAGE>
(including the allocated cost of internal appraisal services), audit,
environmental inspection and review (including the allocated cost of such
internal services), search and filing costs, fees and expenses, incurred or
sustained by BofA (including in its capacity as the Agent) in connection with
the matters referred to under subsections (a) and (b) of this Section.
11.05 COMPANY INDEMNIFICATION. Whether or not the transactions
contemplated hereby are consummated, the Company shall indemnify, defend and
hold the Agent-Related Persons, the Arranger and each Lender and each of its
respective officers, directors, employees, counsel, agents and
attorneys-in-fact (each, an "INDEMNIFIED PERSON") harmless from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, charges, expenses and disbursements (including
Attorney Costs) of any kind or nature whatsoever which may at any time
(including at any time following repayment of the Loans, the termination of
the Letters of Credit and the termination, resignation or replacement of the
Agent or replacement of any Lender or assignment by any Lender of its Loans
or Commitments) be imposed on, incurred by or asserted against any
Indemnified Person in any way relating to or arising out of this Agreement or
any document contemplated by or referred to herein, or the transactions
contemplated hereby, or any action taken or omitted by any such Person under
or in connection with any of the foregoing, including with respect to any
investigation, litigation or proceeding (including any Insolvency Proceeding
or appellate proceeding) related to or arising out of this Agreement or the
Loans or Letters of Credit or the use of the proceeds thereof, whether or not
any Indemnified Person is a party thereto (all the foregoing, collectively,
the "INDEMNIFIED LIABILITIES"); PROVIDED, that the Company shall have no
obligation hereunder to any Indemnified Person with respect to Indemnified
Liabilities resulting solely from the gross negligence or willful misconduct
of such Indemnified Person. The agreements in this Section shall survive
payment of all other Obligations.
11.06 MARSHALLING; PAYMENTS SET ASIDE. Neither the Agent, the
Co-Administrative Agent nor the Lenders shall be under any obligation to
marshall any assets in favor of the Company or any other Person or against or
in payment of any or all of the Obligations. To the extent that the Company
makes a payment to the Agent, the Co-Administrative Agent or the Lenders, or
the Agent, the Co-Administrative Agent or the Lenders exercise their right of
set-off, and such payment or the proceeds of such set-off or any part thereof
are subsequently invalidated, declared to be fraudulent or preferential, set
aside or required (including pursuant to any settlement entered into by the
Agent, the Co-Administrative Agent or such Lender in its discretion) to be
repaid to a trustee, receiver or any other party, in connection with any
Insolvency Proceeding or otherwise, then (a) to the extent of such recovery
the obligation or part thereof originally intended to be satisfied shall be
revived and continued in full force and effect as if such payment had not
been made or such set-off had not occurred, and (b) each Lender severally
agrees to pay to the Agent or the Co-Administrative Agent upon demand its pro
rata share of any amount so recovered from or repaid by the Agent or the
Co-Administrative Agent.
11.07 SUCCESSORS AND ASSIGNS. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns, except that the Company may not
assign or transfer any of its rights or obligations under this Agreement
without the prior written consent of the Agent, the Co-Administrative Agent
and each Lender.
<PAGE>
11.08 ASSIGNMENTS, PARTICIPATIONS, ETC. (a) Any Lender may, with
the written consent of the Company at all times other than during the
existence of an Event of Default and the Agent, the Swing Line Lender and the
Issuer, which consents shall not be unreasonably withheld or delayed, at any
time assign and delegate to one or more Eligible Assignees (each an
"ASSIGNEE") all, or any part of all, of the Loans, the Commitments, the
L/C Obligations and the other rights and obligations of such Lender
hereunder, in a minimum amount of $5,000,000 or, if less, the total amount of
such Lender's outstanding Loans and/or Commitments (provided that (x) no
written consent of the Company, the Agent, the Swing Line Lender or the
Issuer shall be required in connection with any assignment and delegation by
a Lender to an Eligible Assignee that is an Affiliate of such Lender;
PROVIDED, HOWEVER, that the Company, the Agent and the Co-Administrative
Agent may continue to deal solely and directly with such Lender in connection
with the interest so assigned to an Assignee until (i) written notice of such
assignment, together with payment instructions, addresses and related
information with respect to the Assignee, shall have been given to the
Company, the Agent and the Co-Administrative Agent by such Lender and the
Assignee; (ii) such Lender and its Assignee shall have delivered to the
Company and the Agent an Assignment and Acceptance in the form of EXHIBIT D
("ASSIGNMENT AND ACCEPTANCE") together with any Note or Notes subject to such
assignment and (iii) the assignor Lender or Assignee has paid to the Agent a
processing fee in the amount of $3,500.
(b) From and after the date that the Agent notifies the
assignor Lender that it has received (and, if required, provided its consent
with respect to) an executed Assignment and Acceptance and payment of the
above-referenced processing fee, (i) the Assignee thereunder shall be a party
hereto and, to the extent that rights and obligations hereunder (including
without limitation any obligations under SECTION 10.10) have been assigned to
it pursuant to such Assignment and Acceptance, shall have the rights and
obligations of a Lender under the Loan Documents, and (ii) the assignor
Lender shall, to the extent that rights and obligations hereunder and under
the other Loan Documents have been assigned by it pursuant to such Assignment
and Acceptance, relinquish its rights and be released from its obligations
under the Loan Documents.
(c) Within five Business Days after its receipt of notice
by the Agent that it has received an executed Assignment and Acceptance and
payment of the processing fee, (and, if required, provided that it consents
to such assignment in accordance with SUBSECTION 11.08(a)), the Company shall
execute and deliver to the Agent new Notes evidencing such Assignee's
assigned Loans and Commitment and, if the assignor Lender has retained a
portion of its Loans and its Commitment, replacement Notes in the principal
amount of the Loans retained by the assignor Lender (such Notes to be in
exchange for, but not in payment of, the Notes held by such Lender).
Immediately upon each Assignee's making its processing fee payment under the
Assignment and Acceptance, this Agreement shall be deemed to be amended to
the extent, but only to the extent, necessary to reflect the addition of the
Assignee and the resulting adjustment of the Commitments arising therefrom.
The Commitment allocated to each Assignee shall reduce such Commitments of
the assigning Lender PRO TANTO.
(d) Any Lender may at any time sell to one or more
commercial banks or other Persons not Affiliates of the Company (a
"PARTICIPANT") participating interests in any Loans, the Commitment of that
Lender and the other interests of that Lender (the "ORIGINATING
<PAGE>
LENDER") hereunder and under the other Loan Documents; PROVIDED, HOWEVER,
that (i) the originating Lender's obligations under this Agreement shall
remain unchanged, (ii) the originating Lender shall remain solely responsible
for the performance of such obligations, (iii) the Company, each Issuer and
the Agent shall continue to deal solely and directly with the originating
Lender in connection with the originating Lender's rights and obligations
under this Agreement and the other Loan Documents, and (iv) no Lender shall
transfer or grant any participating interest under which the Participant has
rights to approve any amendment to, or any consent or waiver with respect to,
this Agreement or any other Loan Document, except to the extent such
amendment, consent or waiver would require unanimous consent of the Lenders
as described in clause (a) (but only in respect of any increase of any
Commitment of any Originating Lender), (b) or (c) of the FIRST PROVISO to
SECTION 11.01. In the case of any such participation, the Participant shall
be entitled to the benefit of SECTIONS 4.01, 4.03 and 11.05 as though it were
also a Lender hereunder, and if amounts outstanding under this Agreement are
due and unpaid, or shall have been declared or shall have become due and
payable upon the occurrence of an Event of Default, each Participant shall be
deemed to have the right of set-off in respect of its participating interest
in amounts owing under this Agreement to the same extent as if the amount of
its participating interest were owing directly to it as a Lender under this
Agreement.
(e) Notwithstanding any other provision in this Agreement,
any Lender may at any time create a security interest in, or pledge, all or
any portion of its rights under and interest in this Agreement and the Notes
held by it in favor of any Federal Reserve Bank in accordance with Regulation
A of the FRB or U.S. Treasury Regulation 31 CFR Section 203.14, and such
Federal Reserve Bank may enforce such pledge or security interest in any
manner permitted under applicable law.
11.09 CONFIDENTIALITY. Each Lender agrees to take and to cause
its Affiliates to take normal and reasonable precautions and exercise due
care to maintain the confidentiality of all information identified as
"confidential" by the Company and provided to it by the Company or any
Subsidiary, or by the Agent on the Company's or such Subsidiary's behalf,
under this Agreement or any other Loan Document, and neither it nor any of
its Affiliates shall use any such information other than in connection with
or in enforcement of this Agreement and the other Loan Documents or in
connection with other business now or hereafter existing or contemplated with
the Company or any Subsidiary; except to the extent such information (i) was
or becomes generally available to the public other than as a result of
disclosure by the Lender; or (ii) was or becomes available on a
non-confidential basis from a source other than the Company, provided that
such source is not bound by a confidentiality agreement with the Company
known to the Lender; PROVIDED, HOWEVER, that any Lender may disclose such
information (A) at the request or pursuant to any requirement of any
Governmental Authority to which the Lender is subject or in connection with
an examination of such Lender by any such authority; (B) pursuant to subpoena
or other court process; (C) when required to do so in accordance with the
provisions of any applicable Requirement of Law; (D) to the extent reasonably
required in connection with any litigation or proceeding to which the Agent,
the Co-Administrative Agent, any Lender or their respective Affiliates may be
party; (E) to the extent reasonably required in connection with the exercise
of any remedy hereunder or under any other Loan Document; (F) to such
Lender's
<PAGE>
independent auditors and other professional advisors; (G) to any Participant
or Assignee, actual or potential, provided that such Person agrees to keep
such information confidential to the same extent required of the Lenders
hereunder; (H) as to any Lender or its Affiliate, as expressly permitted
under the terms of any other document or agreement regarding confidentiality
to which the Company or any Subsidiary is party or is deemed party with such
Lender or such Affiliate; (I) to its Affiliates; and (J) to the National
Association of Insurance Commissioners or any similar organization or any
nationally recognized rating agency that requires access to information about
such Lender's investment portfolio in connection with ratings issued with
respect to such Lender.
11.10 SET-OFF. In addition to any rights and remedies of the
Lenders provided by law, if an Event of Default exists or the Loans have been
accelerated, each Lender is authorized at any time and from time to time,
without prior notice to the Company, any such notice being waived by the
Company to the fullest extent permitted by law, to set off and apply any and
all deposits (general or special, time or demand, provisional or final) at
any time held by, and other indebtedness at any time owing by, such Lender to
or for the credit or the account of the Company against any and all
Obligations owing to such Lender, now or hereafter existing, irrespective of
whether or not the Agent or such Lender shall have made demand under this
Agreement or any Loan Document and although such Obligations may be
contingent or unmatured. Each Lender agrees promptly to notify the Company
and the Agent after any such set-off and application made by such Lender;
PROVIDED, HOWEVER, that the failure to give such notice shall not affect the
validity of such set-off and application.
11.11 AUTOMATIC DEBITS OF FEES. With respect to any principal or
interest due on the Loans, unreimbursed L/C Obligation, commitment fee,
arrangement fee, letter of credit fee or other fee, or any other cost or
expense (including Attorney Costs) due and payable to the Agent, the
Co-Administrative Agent, the Issuer, BofA, LaSalle or the Arranger under the
Loan Documents, the Company hereby irrevocably authorizes BofA or LaSalle to
debit any deposit account of the Company with BofA or LaSalle or any of its
Affiliates in an amount such that the aggregate amount debited from all such
deposit accounts does not exceed such fee or other cost or expense. If there
are insufficient funds in such deposit accounts to cover the amount of the
fee or other cost or expense then due, such debits will be reversed (in whole
or in part, in BofA's or LaSalle's sole discretion) and such amount not
debited shall be deemed to be unpaid. No such debit under this Section shall
be deemed a set-off.
11.12 NOTIFICATION OF ADDRESSES, LENDING OFFICES, ETC. Each
Lender shall notify the Agent in writing of any changes in the address to
which notices to the Lender should be directed, of addresses of any Lending
Office, of payment instructions in respect of all payments to be made to it
hereunder and of such other administrative information as the Agent shall
reasonably request.
11.13 COUNTERPARTS. This Agreement may be executed in any number
of separate counterparts, each of which, when so executed, shall be deemed an
original, and all of said counterparts taken together shall be deemed to
constitute but one and the same instrument.
<PAGE>
11.14 SEVERABILITY. The illegality or unenforceability of any
provision of this Agreement or any instrument or agreement required hereunder
shall not in any way affect or impair the legality or enforceability of the
remaining provisions of this Agreement or any instrument or agreement
required hereunder.
11.15 NO THIRD PARTIES BENEFITED. This Agreement is made and
entered into for the sole protection and legal benefit of the Company, the
Lenders, the Agent, the Co-Administrative Agent, the Arranger and the
Agent-Related Persons, and their permitted successors and assigns, and no
other Person shall be a direct or indirect legal beneficiary of, or have any
direct or indirect cause of action or claim in connection with, this
Agreement or any of the other Loan Documents.
11.16 GOVERNING LAW AND JURISDICTION. (A) THIS AGREEMENT AND THE
NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL
LAW OF THE STATE OF ILLINOIS (WITHOUT REGARD TO CONFLICTS OF LAW PROVISIONS
THEREOF); PROVIDED THAT THE COMPANY, THE AGENT AND THE LENDERS SHALL RETAIN
ALL RIGHTS ARISING UNDER FEDERAL LAW.
(B) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE
STATE OF ILLINOIS OR OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF
ILLINOIS, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE
COMPANY, THE AGENT, THE CO-ADMINISTRATIVE AGENT AND THE LENDERS CONSENTS, FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF
THOSE COURTS. EACH OF THE COMPANY, THE AGENT, THE CO-ADMINISTRATIVE AGENT AND
THE LENDERS IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. THE
COMPANY, THE AGENT, THE CO-ADMINISTRATIVE AGENT AND THE LENDERS EACH WAIVE
PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE
MADE BY ANY OTHER MEANS PERMITTED BY ILLINOIS LAW.
11.17 WAIVER OF JURY TRIAL. THE COMPANY, THE LENDERS, THE AGENT
AND THE CO-ADMINISTRATIVE AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL
BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR
RELATED TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION
OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY
AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO
CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE COMPANY, THE LENDERS, THE
AGENT AND THE CO-ADMINISTRATIVE AGENT EACH AGREE THAT ANY SUCH
<PAGE>
CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY.
WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR
RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS
TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN
PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE
OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL
APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
11.18 JUDGMENT. If, for the purposes of obtaining judgment in
any court, it is necessary to convert a sum due hereunder or under any other
Loan Document in one currency into another currency, the rate of exchange
used shall be that at which in accordance with normal banking procedures the
Co-Administrative Agent could purchase the first currency with such other
currency on the Business Day preceding that on which final judgment is given.
The obligation of the Company in respect of any such sum due from it to the
Agent, the Co-Administrative Agent or any Lender hereunder or under the other
Loan Documents shall, notwithstanding any judgment in a currency (the
"JUDGMENT CURRENCY") other than that in which such sum is denominated in
accordance with the applicable provisions of this Agreement (the "AGREEMENT
CURRENCY"), be discharged only to the extent that on the Business Day
following receipt by the Agent or such Lender of any sum adjudged to be so
due in the Judgment Currency, the Agent, the Co-Administrative Agent or such
Lender may in accordance with normal banking procedures purchase the
Agreement Currency with the Judgment Currency. If the amount of the Agreement
Currency so purchased is less than the sum originally due to the Agent, the
Co-Administrative Agent or such Lender in the Agreement Currency, the Company
agrees, as a separate obligation and notwithstanding any such judgment, to
indemnify the Agent, the Co-Administrative Agent or such Lender or the Person
to whom such obligation was owing against such loss. If the amount of the
Agreement Currency so purchased is greater than the sum originally due to the
Agent, the Co-Administrative Agent or such Lender in such currency, the
Agent, the Co-Administrative Agent or such Lender agrees to return the amount
of any excess to the Company (or to any other Person who may be entitled
thereto under applicable law).
11.19 ENTIRE AGREEMENT. This Agreement, together with the other
Loan Documents, embodies the entire agreement and understanding among the
Company, the Lenders and the Agent, and supersedes all prior or
contemporaneous agreements and understandings of such Persons, verbal or
written, relating to the subject matter hereof and thereof.
11.20 EURO CURRENCY. (a) If at any time that an Offshore
Currency Loan is outstanding, the relevant Offshore Currency is replaced as
the lawful currency of the country that issued such Offshore Currency (the
"ISSUING COUNTRY") by the Euro then such Offshore Currency Loan shall be
automatically converted into a Loan denominated in Euros in a principal
amount equal to the amount of Euros into which the principal amount of such
Offshore Currency Loan would be converted pursuant to the laws of the Issuing
Country and thereafter (i) no further Loans will be available in such
Offshore Currency and (ii) all references in the Loan Documents to such
Offshore Currency shall be deemed to be the Euro.
<PAGE>
(b) The Company agrees, at the request of any Lender, to
compensate each Lender for any loss, cost, expense or reduction in return
that such Lender shall reasonably determine shall be incurred or sustained by
such Lender as a result of the implementation of the European Monetary Union
and the Euro and that would not have been incurred or sustained by such
Lender but for the transactions provided for herein. A certificate of any
such Lender setting forth such Lender's determination of the amount or
amounts necessary to compensate such Lender shall be delivered to the
Co-Administrative Agent for delivery to the Company and shall be conclusive
absent manifest error so long as such determination is made by such Lender on
a reasonable basis. The Company shall pay such Lender the amount shown as due
on any such certificate within 10 days after receipt thereof. The agreements
and obligations of the Company in this SECTION 11.20 shall survive the
payment of all obligations.
[signature pages follow]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered in Chicago, Illinois by their proper and duly
authorized officers as of the day and year first above written.
REGIS CORPORATION
By:___________________________________
Title:________________________________
BANK OF AMERICA, NATIONAL
ASSOCIATION,
as Administrative Agent
By:___________________________________
Title:________________________________
BANK OF AMERICA, NATIONAL
ASSOCIATION,
as a Lender
By:___________________________________
Title:________________________________
LASALLE BANK, N.A.,
as Co-Administrative Agent, as a Lender
and as Swing Line Lender
By:___________________________________
Title:________________________________
<PAGE>
THE FIRST NATIONAL BANK OF CHICAGO,
as Co-Agent and a Lender
By:___________________________________
Title:________________________________
FIRST UNION NATIONAL BANK,
as Co-Agent and a Lender
By:___________________________________
Title:________________________________
FIRSTAR BANK OF MINNESOTA, N.A.
By:___________________________________
Title:________________________________
FLEET NATIONAL BANK
By:___________________________________
Title:________________________________
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
By:___________________________________
Title:________________________________
<PAGE>
SUNTRUST BANK, CENTRAL FLORIDA, N.A.
By:___________________________________
Title:________________________________
<PAGE>
SCHEDULE 1.01
EXISTING LETTERS OF CREDIT
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------
L/C # Amount Expiration Beneficiary
- -------------------------------------------------------------------------------
<S> <C> <C> <C>
S501478 $740,000 6/30/00 Employers Insurance of Wausau
- -------------------------------------------------------------------------------
S501478 150,000 Swiss Francs 10/31/99 Union Bank of Switzerland
- -------------------------------------------------------------------------------
S514535 700,000 Canadian Dollars 12/31/99 Union Bank of Switzerland
- -------------------------------------------------------------------------------
</TABLE>
<PAGE>
SCHEDULE 2.01
COMMITMENTS AND
PRO RATA SHARES
<TABLE>
<CAPTION>
Lender Commitment Pro Rata
- ------ ---------- --------
<S> <C> <C>
Bank of America, National Association $28,000,000 15.56%
LaSalle Bank, N.A. $28,000,000 15.56%
The First National Bank of Chicago $22,000,000 12.22%
First Union National Bank $22,000,000 12.22%
Firstar Bank of Minnesota, N.A. $20,000,000 11.11%
Fleet National Bank $20,000,000 11.11%
Norwest Bank of Minnesota, National $20,000,000 11.11%
SunTrust Bank, Central Florida, N.A. $20,000,000 11.11%
TOTAL $180,000,000 100%
</TABLE>
<PAGE>
SCHEDULE 6.12
ENVIRONMENTAL MATTERS
None
<PAGE>
SCHEDULE 6.17
SUBSIDIARIES
Part A:
Supercuts Inc.
Trade Secret Inc.
The Barbers Hairstyling for Men & Women, Inc.
Regis International Ltd.
Supercuts Canada Ltd.
Regis Hairstylists Ltd.
Part B: Equity Investments
None
<PAGE>
SCHEDULE 8.01
PERMITTED LIENS
<TABLE>
<S> <C> <C> <C>
Lien Holders Assets: Maturity: Outstanding
Prime Leasing Inc. Various Salon Equipment 3/1/2000 $2.1 million
Information Leasing Corp. Various Salon Equipment & 5/31/2004 $6.7 million
Warehouse Equipment
</TABLE>
Warehouse Equipment includes conveyors and material handling equipment and
software.
<PAGE>
SCHEDULE 8.04
INVESTMENTS
None
<PAGE>
SCHEDULE 8.05
PERMITTED INDEBTEDNESS
<TABLE>
<S> <C> <C>
Creditor: Amount Outstanding: Maturity:
Prudential Senior Debt $74 million 1/2/2000 to 7/2/2008
LaSalle Term Notes $11.3 million 7/1/2000 to 9/1/2003
ING Senior Debt $7 million 12/31/2004
Various Acquisition Debt
Regis Seller Notes $1.1 million 5/1/2001
Trade Secret Seller Notes $1.6 million 12/1/2000
Supercuts Seller Notes* $.5 million 10/01/2002
Heidi's Seller Note $.25 million 3/1/2009
Prime Capital Term Note* $2.3 million 1/1/2001
Hamilton County Term Note $.5 million 7/9/2007
Capital Lease Obligations
Prime Leasing Inc. $2.1 million 3/1/2000
ILC $6.7 million 5/31/2004
UK Overdraft Facility $1.5 million 7/1/2002
(Currently outstanding with Natwest in London)
</TABLE>
*Notes are held at the subsidiary level with Supercuts Inc.
<PAGE>
SCHEDULE 8.08
CONTINGENT OBLIGATION
None
<PAGE>
Schedule 11.02
Offshore and Domestic Lending Offices;
Addresses For Notices
BANK OF AMERICA, NATIONAL ASSOCIATION,
as Administrative Agent
Bank of America, National Association
Agency Management Services #33759
231 South LaSalle Street
Chicago, Illinois 60697
Attention: Vice President
Telephone: (312) 828-7933
Facsimile: (312) 828-9102
AGENT'S PAYMENT OFFICE:
Bank of America, National Trust Association
Agency Management Services #33759
231 South LaSalle Street
Chicago, Illinois 60697
Attention: Vice President
Telephone: (312) 828-7933
Facsimile: (312) 828-9102
LASALLE BANK, N.A,
as Co-Administrative Agent
LaSalle Bank, N.A.
135 South LaSalle Street
Chicago, Illinois 60603
Attention: Diana Novoa
Telephone: (312) 904-1662
Facsimile: (312) 904-4448
CO-ADMINISTRATIVE AGENT'S PAYMENT OFFICE:
LaSalle Bank, N.A.
135 South LaSalle Street
Chicago, Illinois 60603
Attention: Diana Novoa
Telephone: (312) 904-1662
Facsimile: (312) 904-4448
<PAGE>
BANK OF AMERICA, NATIONAL ASSOCIATION,
as a Lender
DOMESTIC AND OFFSHORE LENDING OFFICE:
231 South LaSalle Street
Chicago, Illinois 60697
NOTICES (OTHER THAN BORROWING NOTICES AND NOTICES OF
CONVERSION/CONTINUATION):
Bank of America, National Association
231 South LaSalle Street
Chicago, Illinois 60697
Attention: Vice President
Telephone: (312) 828-7933
Facsimile: (312) 828-9102
LASALLE BANK, N.A.,
as a Lender
DOMESTIC AND OFFSHORE LENDING OFFICE:
135 South LaSalle Street
Chicago, Illinois 60603
NOTICES (OTHER THAN BORROWING NOTICES AND NOTICES OF
CONVERSION/CONTINUATION):
LaSalle Bank, N.A.
135 South LaSalle Street
Chicago, Illinois 60603
Attention: Dana Friedman
Telephone: (312) 904-6583
Facsimile: (312) 904-6457
FIRST UNION NATIONAL BANK
DOMESTIC AND OFFSHORE LENDING OFFICE:
301 S. College Street
Charlotte, North Carolina 28288-0735
NOTICES (OTHER THAN BORROWING NOTICES AND NOTICES OF
CONVERSION/CONTINUATION):
First Union National Bank
301 S. College Street
<PAGE>
Charlotte, North Carolina 28288-0735
Attention: Mary Amatore
Telephone: (704) 374-2641
Facsimile: (704) 374-7236
FLEET NATIONAL BANK
DOMESTIC AND OFFSHORE LENDING OFFICE:
One Federal Street
Boston, Massachusetts 02110
NOTICES (OTHER THAN BORROWING NOTICES AND NOTICES OF
CONVERSION/CONTINUATION):
Fleet National Bank
One Federal Street
Boston, Massachusetts 02110
Attention: Robert Storer
Telephone: (617) 346-4223
Facsimile: (617) 346-0595
<PAGE>
SUNTRUST, CENTRAL FLORIDA, N.A.
- -------------------------------
DOMESTIC AND OFFSHORE LENDING OFFICE:
200 South Orange Avenue
Orlando, Florida 32801
NOTICES (OTHER THAN BORROWING NOTICES AND NOTICES OF
CONVERSION/CONTINUATION):
Sun Trust Bank, Central Florida, N.A.
200 South Orange Avenue
Orlando, Florida 32801
Attention: Joseph B. Kabourek
Telephone: (407) 237-4284
Facsimile: (407) 237-6894
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
- --------------------------------------------
DOMESTIC AND OFFSHORE LENDING OFFICE:
Sixth and Marquette
Minneapolis, Minnesota 55479-0085
NOTICES (OTHER THAN BORROWING NOTICES AND NOTICES OF
CONVERSION/CONTINUATION):
Norwest Bank Minnesota, National Association
Sixth and Marquette
Minneapolis, Minnesota 55479-0085
Attention: David Y. Kopolow
Telephone: (612) 316-3891
Facsimile: (612) 667-2276
<PAGE>
FIRSTAR BANK OF MINNESOTA, N.A.
- -------------------------------
DOMESTIC AND OFFSHORE LENDING OFFICE:
101 East 5th Street, 12th Floor
Corporate Banking Group
St. Paul, Minnesota 55101-1806
NOTICES (OTHER THAN BORROWING NOTICES AND NOTICES OF
CONVERSION/CONTINUATION):
Firstar Bank of Minnesota
100 East 5th Street, 12th Floor
Corporate Banking Group
St. Paul, Minnesota 55101-1806
Attention: Kevin L. Campion
Telephone: (612) 229-6519
Facsimile: (612) 298-6026
THE FIRST NATIONAL BANK OF CHICAGO
- ----------------------------------
DOMESTIC AND OFFSHORE LENDING OFFICES:
One First National Plaza
Chicago, Illinois 60670
NOTICES (OTHER THAN BORROWING NOTICES AND NOTICES OF
CONVERSION/CONTINUATION):
The First National Bank of Chicago
One First National Plaza
Suite 0173
Chicago, Illinois 60670
Attention: J. Garland Smith
Telephone: (312) 732-2735
Facsimile: (312) 732-1117
REGIS CORPORATION
- -----------------
7201 Metro Boulevard
Minneapolis, Minnesota 55439
Attention: Randy L. Pearce
Telephone: (612) 947-7777
Facsimile: (612) 947-7701
<PAGE>
EXHIBIT A
FORM OF NOTICE OF BORROWING
[Date]
LaSalle Bank, N.A.,
as Co-Administrative Agent for the Lenders party to the
Credit Agreement referred to below
135 South LaSalle Street
Chicago, Illinois
Attn:__________________
Ladies and Gentlemen:
The undersigned, Regis Corporation, refers to the Credit
Agreement, dated as of August 2, 1999 (as the same may be amended, restated,
supplemented or otherwise modified from time to time, the "CREDIT AGREEMENT";
the terms defined therein being used herein as therein defined), among the
undersigned, the financial institutions party thereto (the "LENDERS"),
LaSalle Bank, N.A., as Co-Administrative Agent and as Swing Line Lender and
Bank of America, National Association, as Administrative Agent, and hereby
gives you notice pursuant to SECTION 2.03 of the Credit Agreement that the
undersigned hereby requests a Borrowing under the Credit Agreement and, in
that connection, sets forth below the information relating to such Borrowing,
as required by SUBSECTION 2.03(a) of the Credit Agreement:
1. The aggregate amount of the proposed Borrowing is
$______________.(1)
2. The requested Borrowing Date for the proposed
Borrowing (which is a Business Day) is
______________, ____.
3. The Loans comprising the proposed Borrowing are
[Base] [Offshore] Rate Loans [and shall be
denominated in [Dollars] [Offshore Currency]].
4. The duration of the Interest Period for each Offshore
Rate Loan made as part of the proposed Borrowing, if
applicable, is ___________ months (which shall be 1,
2, 3 or 6 months).
__________________
(1) minimum of $500,000 or any multiple of $100,000 in excess thereof.
<PAGE>
The undersigned hereby certifies that the following
statements are true on the date hereof, and will be true on the date of the
proposed Borrowing, before and after giving effect thereto and to the
application of the proceeds therefrom:
(a) The representations and warranties contained in
Article VI of the Credit Agreement are true and
correct in all material respects as though made on
and as of such date (except to the extent such
representations and warranties expressly refer to an
earlier date, in which case such representations and
warranties are true and correct as of such earlier
date);
(b) No Default or Event of Default has occurred and is
continuing, or would result from such proposed
Borrowing; and
(c) The proposed Borrowing will not cause the amount of
all outstanding Loans to exceed the Aggregate
Commitment.
Very truly yours,
REGIS CORPORATION
By:_______________________
Name:_____________________
Title:____________________
-2-
<PAGE>
EXHIBIT B
FORM OF NOTICE OF CONVERSION/CONTINUATION
[Date]
LaSalle Bank, N.A.,
as Co-Administrative Agent for the Lenders party to the
Credit Agreement referred to below
135 South LaSalle Street
Chicago, Illinois
Attn: Vice President
Ladies and Gentlemen:
The undersigned, Regis Corporation, refers to the Credit
Agreement, dated as of August 2, 1999 (as the same may be amended, restated,
supplemented or otherwise modified from time to time, the "CREDIT AGREEMENT";
the terms defined therein being used herein as therein defined), among the
undersigned, the financial institutions party thereto (the "LENDERS"),
LaSalle Bank, N.A., as Co-Administrative Agent and as Swing Line Lender, and
Bank of America, National Association, as Administrative Agent, and hereby
gives you notice pursuant to SECTION 2.04 of the Credit Agreement that the
undersigned hereby requests a [conversion] [continuation] of Loans under the
Credit Agreement, and in that connection sets forth below the information
relating to such [conversion] [continuation], as required by SUBSECTION
2.04(b) of the Credit Agreement:
1. The date of the proposed [conversion] [continuation] is
______________, ____ (which shall be a Business Day).
2. The aggregate amount of the Loans proposed to be
[converted] [continued] is $______________(1). [Specify which part is
to be converted and which part is to be continued, if appropriate.]
3. The Loans to be [continued] [converted] are [Base Rate
Loans] [Offshore Rate Loans] and the Loans resulting from the proposed
[conversion] [continuation] will be [Base Rate Loans] [Offshore Rate
Loans]. [If the Loans are to be Offshore Rate Loans, specify whether
they will be denominated in Dollars or in Offshore Currency.]
______________________
(1) minimum of $500,000 or any multiple of $100,000 in excess thereof.
<PAGE>
4. The duration of the requested Interest Period for each
Offshore Rate Loan made as part of the proposed [conversion]
[continuation] is ___________ months (which shall be 1, 2, 3 or 6
months).
The undersigned hereby certifies that before and after
giving effect to the proposed [conversion] [continuation] and to the
application of the proceeds therefrom, no Default or Event of Default has
occurred and is continuing or would result from such proposed [conversion]
[continuation].
Very truly yours,
REGIS CORPORATION
By:_______________________
Name:_____________________
Title:____________________
-2-
<PAGE>
EXHIBIT C
FORM OF COMPLIANCE CERTIFICATE
Bank of America, National Association, as Administrative Agent
for the Lenders party to the Credit
Agreement referred to below
Agency Management Services #33759
231 South LaSalle Street
Chicago, Illinois 60697
Attn: Vice President
Ladies and Gentlemen:
This certificate is furnished to you by Regis Corporation (the
"COMPANY"), pursuant to Section 7.02(b) of that certain Credit Agreement, dated
as of July __, 1999, among the Company, the financial institutions party thereto
(the "LENDERS"), Bank of America, National Association, as Administrative Agent
and LaSalle Bank, N.A., as Co-Administrative Agent and as Swingline Lender (as
the same may be amended, restated, supplemented or otherwise modified from time
to time, the "CREDIT AGREEMENT"), concurrently with the delivery of the
financial statements required pursuant to Section 7.01 of the Credit Agreement.
Terms not otherwise defined herein are used herein as defined in the Credit
Agreement.
The undersigned, on behalf of the Company, hereby certifies that:
I. no Default or Event of Default has occurred and is continuing,
except as described in Attachment 1 hereto;
II. the financial data and computations set forth in Schedule 1 below,
evidencing compliance with the covenants set forth in Sections 8.01, 8.02, 8.04,
8.05, 8.08, 8.11, 8.16, 8.17, and 8.18 of the Credit Agreement are true and
correct as of ________________, ____(1) (the "COMPUTATION DATE"); and
III. if the financial statements of the Company being concurrently
delivered were not prepared in accordance with GAAP, Attachment 2 hereto sets
forth any derivations required to conform the relevant data in such financial
statements to the computations set forth below.
_________________________
(1) The last day of the accounting period for which financial statements are
being concurrently delivered.
<PAGE>
The foregoing certifications, together with the computations set forth
in Schedule 1 hereto and the financial statements delivered with this Compliance
Certificate in support hereof, are made and delivered as of this ________ day of
______________, ____.
REGIS CORPORATION
By:____________________________
Name:__________________________
Its:________________________(2)
_____________________
(2) To be executed by a Responsible Officer of the Company.
-2-
<PAGE>
SCHEDULE 1
COMPUTATIONS
<TABLE>
<S> <C>
- -----------------------------------------------------------------------------------------------------------------------
I. SECTION 8.01 LIMITATION ON LIENS
- -----------------------------------------------------------------------------------------------------------------------
A. Section 8.01(g):
- -----------------------------------------------------------------------------------------------------------------------
1. Permitted judgment liens $1,000,000
- -----------------------------------------------------------------------------------------------------------------------
2. Actual judgment liens $ _______________________
- -----------------------------------------------------------------------------------------------------------------------
B. Section 8.01(i):
- -----------------------------------------------------------------------------------------------------------------------
1. Permitted liens on assets of new Subsidiaries $ 15,000,000 LESS amounts
outstanding under
paragraphs (C)
and (D) below
- -----------------------------------------------------------------------------------------------------------------------
2. Actual liens on assets of new Subsidiaries $ _______________________
- -----------------------------------------------------------------------------------------------------------------------
C. Section 8.01(j):
- -----------------------------------------------------------------------------------------------------------------------
1. Permitted purchase money Indebtedness $15,000,000 LESS amounts
(including amounts of Indebtedness outstanding under (B) and
permitted pursuant to Section 8.01(d)) (D)
- -----------------------------------------------------------------------------------------------------------------------
2. Actual purchase money Indebtedness $_______________________
- -----------------------------------------------------------------------------------------------------------------------
D. Section 8.01(n):
- -----------------------------------------------------------------------------------------------------------------------
1. Permitted Liens securing miscellaneous $15,000,000 LESS amounts
obligations of the Company and its outstanding under (B) and
Subsidiaries (C) above
- -----------------------------------------------------------------------------------------------------------------------
2. Actual Liens securing miscellaneous
obligations of the Company and its $_______________________
Subsidiaries
- -----------------------------------------------------------------------------------------------------------------------
II. SECTION 8.04 LOANS AND INVESTMENTS
- -----------------------------------------------------------------------------------------------------------------------
A. Section 8.04(c):
- -----------------------------------------------------------------------------------------------------------------------
1. Aggregate permitted investments in
foreign Wholly-Owned Subsidiaries or
non-Wholly-Owned Subsidiaries $ 5,000,000
- -----------------------------------------------------------------------------------------------------------------------
2. Actual aggregate investments in foreign
Wholly-Owned Subsidiaries or
non-Wholly-Owned Subsidiaries $_______________________
- -----------------------------------------------------------------------------------------------------------------------
B. Section 8.04(e):
- -----------------------------------------------------------------------------------------------------------------------
1. Permitted investments in Joint Ventures $ 10,000,000
- -----------------------------------------------------------------------------------------------------------------------
2. Actual investments in Joint Ventures $ _______________________
- -----------------------------------------------------------------------------------------------------------------------
-3-
<PAGE>
- -----------------------------------------------------------------------------------------------------------------------
III. SECTION 8.02 DISPOSITION OF ASSETS
- -----------------------------------------------------------------------------------------------------------------------
1. Permitted asset dispositions under
Section 8.02(c):
5% of consolidated total assets of the Company and its $_______________________
Subsidiaries as of the last day of preceding fiscal quarter**
$_______________________
2. Actual such asset dispositions for such period
**Note: Must also demonstrate (to the extent calculable)
that total asset dispositions for such period do not involve
property which is responsible for more than 5% of the consolidated
net income of the Company and its Subsidiaries for the 12-month
period ending as of the last day of the fiscal quarter next
preceding the date of determination.
- -----------------------------------------------------------------------------------------------------------------------
IV. SECTION 8.08 CONTINGENT OBLIGATIONS
- -----------------------------------------------------------------------------------------------------------------------
3. Permitted miscellaneous Contingent Obligations $ 10,000,000
- -----------------------------------------------------------------------------------------------------------------------
4. Actual miscellaneous Contingent Obligations $ _______________________
- -----------------------------------------------------------------------------------------------------------------------
V. SECTION 8.14 DEBT TO CAPITALIZATION RATIO
- -----------------------------------------------------------------------------------------------------------------------
1. Required .50 to 1.0
- -----------------------------------------------------------------------------------------------------------------------
2. Actual:
- -----------------------------------------------------------------------------------------------------------------------
(a) Consolidated Indebtedness as of the date of
determination $ _______________________
- -----------------------------------------------------------------------------------------------------------------------
(b) (i) Consolidated Indebtedness as of the date of
determination $ _______________________
(ii) Net Worth of the Company $ _______________________
(iii) (i) plus (ii) $ _______________________
- -----------------------------------------------------------------------------------------------------------------------
(c) Ratio of (a) to (b) to 1.0
- -----------------------------------------------------------------------------------------------------------------------
VI. SECTION 8.15 FIXED CHARGE COVERAGE RATIO
- -----------------------------------------------------------------------------------------------------------------------
1. Required 1.5 to 1.0
- -----------------------------------------------------------------------------------------------------------------------
-4-
<PAGE>
- -----------------------------------------------------------------------------------------------------------------------
2. Actual:
- -----------------------------------------------------------------------------------------------------------------------
(a) EBITDAR for the period of four fiscal quarters ending on
the date of determination:
(i) Net income (or net loss) $ ______________________
(ii) Amounts treated as expenses for depreciation, $ ______________________
interest and the amortization of intangibles and
included in determining net income (or net loss)
(iii) Accrued income taxes included in determination of $ ______________________
net income (or net loss) $ ______________________
(iv) Rental expense $ ______________________
(a) store rental payments $ ______________________
(b) common area maintenance payments $ ______________________
(c) real estate taxes paid by the Company and
its Subsidiaries $ ______________________
(d) (a) plus (b) plus (c)
(v) Lesser of (A) amount of charge in
respect of non-recurring expenses taken in
the fourth quarter of the Company's 1999
fiscal year with respect to the Company's $ ______________________
acquisition of The Barbers, Hairstylists for
Men and Women, Inc. and (B)
$14,000,000(3)
(vii) (i) plus (ii) plus (iii) plus
(iv) plus (v)
- -----------------------------------------------------------------------------------------------------------------------
(b) Fixed Charges for the period of four fiscal quarters
ending on the date of determination: $ ______________________
(i) interest expense in respect of Indebtedness
(ii) Rental expense:
(a) store rental payments
(b) common area maintenance payments
(c) real estate taxes paid by the Company and
its Subsidiaries $ ______________________
(d) (a) plus (b) plus (c) $ ______________________
(iii) (i) plus (ii)
- -----------------------------------------------------------------------------------------------------------------------
(c) Ratio of (a) to (b) _____ to 1.0
- -----------------------------------------------------------------------------------------------------------------------
</TABLE>
- --------------------
(3) Only applicable for measurements through the third quarter of fiscal year
2000; may also include other charges in respect of non-recurring expenses
arising in connection with acquisitions, to the extent approved by the
Agent and Required Lenders
-5-
<PAGE>
ATTACHMENT 1
DESCRIPTION OF ANY DEFAULTS OR EVENTS OF DEFAULT
-6-
<PAGE>
ATTACHMENT 2
DERIVATIONS REQUIRED TO CONFORM RELEVANT DATA IF FINANCIAL
STATEMENTS WERE NOT PREPARED IN ACCORDANCE WITH GAAP
-7-
<PAGE>
EXHIBIT D
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
This ASSIGNMENT AND ACCEPTANCE AGREEMENT (this "ASSIGNMENT AND
ACCEPTANCE") dated as of ___________, 199_/200_ is made between
__________________________ (the "ASSIGNOR") and _________________________ (the
"ASSIGNEE").
RECITALS
WHEREAS, the Assignor is party to that certain Credit
Agreement, dated as of August 2, 1999 (as amended, restated, supplemented or
otherwise modified from time to time, the "CREDIT AGREEMENT"), among Regis
Corporation (the "COMPANY"), the financial institutions party thereto (including
the Assignor, the "LENDERS"), LaSalle Bank, N.A., as Co-Administrative Agent and
as Swing Line Lender, and Bank of America, National Association, as
Administrative Agent (the "ADMINISTRATIVE AGENT"). Any terms defined in the
Credit Agreement and not defined in this Assignment and Acceptance are used
herein as defined in the Credit Agreement;
WHEREAS, as provided under the Credit Agreement, the Assignor
has committed to making Loans to the Company in an aggregate amount not to
exceed $___________ (the "COMMITMENT");
WHEREAS, the Assignor wishes to assign to the Assignee [part]
[all] of the rights and obligations of the Assignor under the Credit Agreement
in respect of its Commitment, which represents its outstanding portion of the
Loans in an amount equal to $____________ (the "ASSIGNED AMOUNT") on the terms
and subject to the conditions set forth herein and the Assignee wishes to accept
assignment of such rights and to assume such obligations from the Assignor on
such terms and subject to such conditions;
NOW, THEREFORE, in consideration of the foregoing and the
mutual agreements contained herein, the parties hereto agree as follows:
1. ASSIGNMENT AND ACCEPTANCE.
(a) Subject to the terms and conditions of this Assignment and
Acceptance, (i) the Assignor hereby sells, transfers and assigns to the
Assignee, and (ii) the Assignee hereby purchases, assumes and undertakes from
the Assignor, without recourse and without representation or warranty (except as
provided in this Assignment and Acceptance) __% (the "ASSIGNEE'S PERCENTAGE
SHARE") of (A) the Aggregate Commitment and the Loans and (B) all related
rights, benefits, obligations, liabilities and indemnities of the Assignor under
and in connection with the Credit Agreement and the Loan Documents.
<PAGE>
[IF APPROPRIATE, ADD PARAGRAPH SPECIFYING PAYMENT TO ASSIGNOR
BY ASSIGNEE OF OUTSTANDING PRINCIPAL OF, ACCRUED INTEREST ON, AND FEES WITH
RESPECT TO, LOANS ASSIGNED.]
(b) With effect on and after the Effective Date (as defined
in Section 5 hereof), the Assignee shall be a party to the Credit Agreement
and succeed to all of the rights and be obligated to perform all of the
obligations of a Lender under the Credit Agreement (including without
limitation under Article II thereof), including the requirements concerning
confidentiality and the payment of indemnification, with a Commitment in an
amount equal to the Assigned Amount. The Assignee agrees that it will perform
in accordance with their terms all of the obligations which by the terms of
the Credit Agreement are required to be performed by it as a Lender. It is
the intent of the parties hereto that the Commitment of the Assignor shall,
as of the Effective Date, be reduced by an amount equal to the Assigned
Amount and the Assignor shall relinquish its rights and be released from its
obligations under the Credit Agreement to the extent such obligations have
been assumed by the Assignee; PROVIDED, HOWEVER, the Assignor shall not
relinquish its rights under Section 11.05 of the Credit Agreement to the
extent such rights relate to the time prior to the Effective Date.
(c) After giving effect to the assignment and assumption set
forth herein, on the Effective Date the Assignee's Commitment will be
$____________ [MINIMUM AMOUNT OF $5,000,000 OR, IF LESS, 100% OF THE ASSIGNOR'S
OUTSTANDING LOANS AND/OR COMMITMENT].
(d) After giving effect to the assignment and assumption
set forth herein, on the Effective Date the Assignor's Commitment will be
$___________.
2. PAYMENTS.
(a) As consideration for the sale, assignment and transfer
contemplated in Section 1 hereof, the Assignee shall pay to the Assignor on the
Effective Date in immediately available funds an amount equal to $____________,
representing the Assignee's Pro Rata Share of the principal amount of Loans.
(b) The [Assignor] [Assignee] further agrees to pay to the
Agent a processing fee in the amount specified in Section 11.08(a) of the Credit
Agreement, if required.
3. REALLOCATION OF PAYMENTS.
Any interest, fees and other payments accrued to the Effective Date
with respect to the Commitment and Loans shall be for the account of the
Assignor. Any interest, fees and other payments accrued on and after the
Effective Date with respect to the Assigned Amount shall be for the account of
the Assignee. Each of the Assignor and the Assignee agrees that it will hold in
trust for the other party any interest, fees and other amounts which it may
receive to which the other party is entitled pursuant to the two preceding
sentences and pay to the other party any such amounts which it may receive
promptly upon receipt.
4. INDEPENDENT CREDIT DECISION.
The Assignee (a) acknowledges that it has received a copy of the Credit
Agreement and the Schedules and Exhibits thereto, together with copies of the
most recent financial statements
-2-
<PAGE>
referred to in Section 7.01 of the Credit Agreement, and such other documents
and information as it has deemed appropriate to make its own credit and legal
analysis and decision to enter into this Assignment and Acceptance; and (b)
agrees that it will, independently and without reliance upon the Assignor,
the Administrative Agent, the Co-Administrative Agent or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit and legal decisions in taking or not
taking action under the Credit Agreement.
5. EFFECTIVE DATE; NOTICES.
(a) As between the Assignor and the Assignee, the effective
date for this Assignment and Acceptance shall be ____________, _____ (the
"EFFECTIVE DATE"); PROVIDED that the following conditions precedent have been
satisfied on or before the Effective Date:
(i) this Assignment and Acceptance shall be executed
and delivered by the Assignor and the Assignee;
(ii) the consents of the Administrative Agent and the
Company, to the extent required for an effective assignment of the Assigned
Amount by the Assignor to the Assignee under Section 11.08(a) of the Credit
Agreement, shall have been duly obtained and shall be in full force and effect
as of the Effective Date;
(iii) the Assignee shall pay to the Assignor all
amounts due to the Assignor under this Assignment and Acceptance;
(iv) the Assignee shall have complied with Section
11.08 of the Credit Agreement (if applicable);
(v) the processing fee referred to in SECTION 2(b)
hereof and in Section 11.08(a) of the Credit Agreement shall have been paid to
the Administrative Agent, if required; and
(vi) the Assignor shall have assigned and the
Assignee shall have assumed a percentage equal to the Assignee's Percentage
Share of the rights and obligations of the Assignor under the Credit Agreement
(if such agreement exists).
(b) Promptly following the execution of this Assignment and
Acceptance, the Assignor shall deliver to the Company and the Administrative
Agent for acknowledgment by the Administrative Agent, a Notice of Assignment
substantially in the form attached hereto as SCHEDULE 1.
6. ADMINISTRATIVE AGENT.
(a) The Assignee hereby appoints and authorizes each of the
Administrative Agent and Co-Administrative Agent to take such action as agent on
its behalf and to exercise such powers under the Credit Agreement as are
delegated to the Administrative Agent and the Co-Administrative Agent by the
Lenders pursuant to the terms of the Credit Agreement.
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<PAGE>
[(b) The Assignee shall assume no duties or obligations held
by the Assignor in its capacity as [Administrative Agent][Co-Administrative
Agent] under the Credit Agreement.] [INCLUDE ONLY IF ASSIGNOR IS ADMINISTRATIVE
AGENT OR CO-ADMINISTRATIVE AGENT]
7. WITHHOLDING TAX.
The Assignee (a) represents and warrants to the Lender, the
Administrative Agent, the Co-Administrative Agent and the Company that under
applicable law and treaties no tax will be required to be withheld by the
Lender with respect to any payments to be made to the Assignee hereunder, (b)
agrees to furnish (if it is organized under the laws of any jurisdiction
other than the United States or any State thereof) to the Administrative
Agent, the Co-Administrative Agent and the Company prior to the time that the
Administrative Agent, the Co-Administrative Agent or Company is required to
make any payment of principal, interest or fees hereunder, duplicate executed
originals of either U.S. Internal Revenue Service Form 4224 or U.S. Internal
Revenue Service Form 1001 (wherein the Assignee claims entitlement to the
benefits of a tax treaty that provides for a complete exemption from U.S.
federal income withholding tax on all payments hereunder) and agrees to
provide a new Form 4224 or 1001 upon the expiration of any previously
delivered form or comparable statements in accordance with applicable U.S.
law and regulations and amendments thereto, duly executed and completed by
the Assignee, and (c) agrees to comply with all applicable U.S. laws and
regulations with regard to such withholding tax exemption.
8. REPRESENTATIONS AND WARRANTIES.
(a) The Assignor represents and warrants that (i) it is the
legal and beneficial owner of the interest being assigned by it hereunder and
that such interest is free and clear of any Lien or other adverse claim; (ii) it
is duly organized and existing and it has the full power and authority to take,
and has taken, all action necessary to execute and deliver this Assignment and
Acceptance and any other documents required or permitted to be executed or
delivered by it in connection with this Assignment and Acceptance and to fulfill
its obligations hereunder; (iii) no notices to, or consents, authorizations or
approvals of, any Person are required (other than any already given or obtained)
for its due execution, delivery and performance of this Assignment and
Acceptance, and apart from any agreements or undertakings or filings required by
the Credit Agreement, no further action by, or notice to, or filing with, any
Person is required of it for such execution, delivery or performance; and (iv)
this Assignment and Acceptance has been duly executed and delivered by it and
constitutes the legal, valid and binding obligation of the Assignor, enforceable
against the Assignor in accordance with the terms hereof, subject, as to
enforcement, to bankruptcy, insolvency, moratorium, reorganization and other
laws of general application relating to or affecting creditors' rights and to
general equitable principles.
(b) The Assignor makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement or any other instrument or document furnished pursuant
thereto. The Assignor makes no representation or warranty in connection with,
and assumes no responsibility with respect to, the solvency, financial condition
or
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<PAGE>
statements of the Company, or the performance or observance by the Company,
of any of its respective obligations under the Credit Agreement or any other
instrument or document furnished in connection therewith.
(c) The Assignee represents and warrants that (i) it is
duly organized and existing and it has full power and authority to take, and
has taken, all action necessary to execute and deliver this Assignment and
Acceptance and any other documents required or permitted to be executed or
delivered by it in connection with this Assignment and Acceptance, and to
fulfill its obligations hereunder; (ii) no notices to, or consents,
authorizations or approvals of, any Person are required (other than any
already given or obtained) for its due execution, delivery and performance of
this Assignment and Acceptance; and apart from any agreements or undertakings
or filings required by the Credit Agreement, no further action by, or notice
to, or filing with, any Person is required of it for such execution, delivery
or performance; (iii) this Assignment and Acceptance has been duly executed
and delivered by it and constitutes the legal, valid and binding obligation
of the Assignee, enforceable against the Assignee in accordance with the
terms hereof, subject, as to enforcement, to bankruptcy, insolvency,
moratorium, reorganization and other laws of general application relating to
or affecting creditors' rights and to general equitable principles; and (iv)
it is an Eligible Assignee.
9. FURTHER ASSURANCES.
The Assignor and the Assignee each hereby agree to execute and
deliver such other instruments, and take such other action, as either party
may reasonably request in connection with the transactions contemplated by
this Assignment and Acceptance, including the delivery of any notices or
other documents or instruments to the Company, the Administrative Agent or
the Co-Administrative Agent which may be required in connection with the
assignment and assumption contemplated hereby.
10. MISCELLANEOUS.
(a) Any amendment or waiver of any provision of this
Assignment and Acceptance shall be in writing and signed by the parties
hereto. No failure or delay by either party hereto in exercising any right,
power or privilege hereunder shall operate as a waiver thereof and any waiver
of any breach of the provisions of this Assignment and Acceptance shall be
without prejudice to any rights with respect to any other or further breach
thereof.
(b) All payments made hereunder shall be made without any
set-off or counterclaim.
(c) The Assignor and the Assignee shall each pay its own
costs and expenses incurred in connection with the negotiation, preparation,
execution and performance of this Assignment and Acceptance.
(d) This Assignment and Acceptance may be executed in any
number of counterparts and all of such counterparts taken together shall be
deemed to constitute one and the same instrument.
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<PAGE>
(e) THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS
(WITHOUT REGARD TO CONFLICTS OF LAW PROVISIONS THEREOF). The Assignor and the
Assignee each irrevocably submits to the non-exclusive jurisdiction of any
State or Federal court sitting in Illinois over any suit, action or
proceeding arising out of or relating to this Assignment and Acceptance and
irrevocably agrees that all claims in respect of such action or proceeding
may be heard and determined in such Illinois State or Federal court. Each
party to this Assignment and Acceptance hereby irrevocably waives, to the
fullest extent it may effectively do so, the defense of an inconvenient forum
to the maintenance of such action or proceeding.
(f) THE ASSIGNOR AND THE ASSIGNEE EACH HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR
IN CONNECTION WITH THIS ASSIGNMENT AND ACCEPTANCE, THE CREDIT AGREEMENT, ANY
RELATED DOCUMENTS AND AGREEMENTS OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
OR STATEMENTS (WHETHER ORAL OR WRITTEN).
[OTHER PROVISIONS TO BE ADDED AS MAY BE NEGOTIATED BETWEEN THE
ASSIGNOR AND THE ASSIGNEE, PROVIDED THAT SUCH PROVISIONS ARE NOT INCONSISTENT
WITH THE CREDIT AGREEMENT.]
-6-
<PAGE>
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Assignment and Acceptance to be executed and delivered by their duly authorized
officers as of the date first above written.
[ASSIGNOR]
By:_________________________
Name:_______________________
Title:______________________
Address:____________________
[ASSIGNEE]
By:_________________________
Name:_______________________
Title:______________________
Address:____________________
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<PAGE>
SCHEDULE 1
NOTICE OF ASSIGNMENT AND ACCEPTANCE
[Date]
Bank of America, National Association,
as Administrative Agent for the Lenders party to the
Credit Agreement referred to below
Agency Management Services #33499
231 South LaSalle Street
Chicago, Illinois 60697
Attn: Vice President
Regis Corporation
2201 Metro Boulevard
Minneapolis, Minnesota 55439
Attn: Randy L. Pearce
Ladies and Gentlemen:
We refer to the Credit Agreement, dated as of August 2, 1999 (as
amended, restated, supplemented or otherwise modified from time to time, the
"CREDIT AGREEMENT"), among Regis Corporation (the "COMPANY"), the financial
institutions party thereto (the "LENDERS"), Bank of America, National
Association, as Administrative Agent (the "ADMINISTRATIVE AGENT") and LaSalle
Bank, N.A., as Co-Administrative Agent. Terms defined in the Credit Agreement
are used herein as therein defined.
1. We hereby give you notice of, and request your consent to, the
assignment by ____________ (the "ASSIGNOR") to _________________ (the
"ASSIGNEE") of _____% of the right, title and interest of the Assignor in and to
the Credit Agreement (including, without limitation, the right, title and
interest of the Assignor in and to the Commitment of the Assignor and all
outstanding Loans made by the Assignor pursuant to the Assignment and Acceptance
Agreement attached hereto (the "ASSIGNMENT AND ACCEPTANCE"). Before giving
effect to such assignment the Assignor's Commitment is $____________ and the
aggregate amount of its outstanding Loans is $___________.
2. The Assignee agrees that, upon receiving the consent of the
Administrative Agent and the Company, to the extent required, to such
assignment, the Assignee will be bound by the terms of the Credit Agreement as
fully and to the same extent as if the Assignee were the Lender originally
holding such interest in the Credit Agreement.
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<PAGE>
3. The following administrative details apply to the Assignee:
(A) Notice Address:
Assignee name:______________________________
Address:____________________________________
Attention:__________________________________
Telephone: (___)____________________________
Fax No.: (___)____________________________
(B) Payment Instructions:
Account No.:________________________________
At:_____________________________
Reference:__________________________________
Attention:__________________________________
4. You are entitled to rely upon the representations, warranties and
covenants of each of the Assignor and Assignee contained in the Assignment and
Acceptance.
-9-
<PAGE>
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Notice of Assignment and Acceptance to be executed by their respective duly
authorized officials, officers or agents as of the date first above mentioned.
Very truly yours,
[NAME OF ASSIGNOR]
By:________________________
Name:______________________
Title:_____________________
[NAME OF ASSIGNEE]
By:________________________
Name:______________________
Title:_____________________
ACKNOWLEDGED AND ASSIGNMENT
CONSENTED TO:
BANK OF AMERICA, NATIONAL ASSOCIATION,
as Administrative Agent
By:________________________
Name:______________________
Title:_____________________
REGIS CORPORATION
By:________________________
Name:______________________
Title:_____________________
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<PAGE>
SELECTED FINANCIAL DATA
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
The following table sets forth, for the periods indicated, selected
financial data derived from the Company's consolidated financial
statements.
<TABLE>
<CAPTION>
1999 1998 1997 1996 1995
<S> <C> <C> <C> <C> <C>
Revenues $ 974,872 $ 848,444 $ 756,242 $ 654,642 $ 556,616
Operating income (a) 62,802 63,816 31,555 28,624 28,108
Net income (a) 30,346 32,699 8,258 11,077 12,366
Net income per diluted share (a) .76 .84 .22 .30 .35
Total assets 493,624 402,914 349,892 317,481 256,332
Long-term debt, including
current portion 166,986 126,628 120,242 107,061 90,975
Dividends declared $ .10 $ .06 $ .05 $ .05
</TABLE>
(a) The following information is provided to facilitate
comparisons of operating income, net income and net income per diluted share,
absent the impact of certain nonrecurring activities (See Note 10 to the
consolidated financial statements). Exclusive of nonrecurring items,
operating income would have been $78,935, $65,795, $50,286 and $41,447 in
1999, 1998, 1997 and 1996, respectively. Exclusive of nonrecurring items, net
income and net income per diluted share, respectively, would have been
$41,901 and $1.05 in 1999; $33,811 and $.87 in 1998; $23,021 and $.61 in
1997; $18,607 and $.51 in 1996; and $11,661 and $.33 in 1995.
KEY RATIOS
<TABLE>
<CAPTION>
For the Years Ended June 30,
1999 1998 1997
<S> <C> <C> <C>
Net income per diluted share exclusive of goodwill amortization* 1.20 1.00 0.72
Gross margin percentage 43.5 % 43.2 % 42.4 %
Salon contribution percentage 17.7 % 17.1 % 15.8 %
Product sales mix 28.4 % 28.2 % 26.9 %
Operating income as a percent of revenues* 8.1 % 7.8 % 6.6 %
Debt-to-capitalization ratio 41.4 % 39.0 % 43.5 %
* Excludes nonrecurring items (see Note 10 to the consolidated financial statements)
</TABLE>
ANNUAL RESULTS
The following table sets forth for the periods indicated certain
information derived from the Company's consolidated statement of operations
expressed as a percent of revenues. The percentages are computed as a percent
of total Company revenues, except as noted.
<TABLE>
<CAPTION>
For the Years Ended June 30,
1999 1998 1997
<S> <C> <C> <C>
Company-owned service revenues (1) 71.6% 71.8 % 73.1 %
Company-owned product revenues (1) 28.4 28.2 26.9
Franchise revenue 4.9 5.4 5.8
Company-owned operations:
Profit margins on service (2) 42.4 42.3 41.4
Profit margins on product (3) 46.2 45.4 45.1
Direct salon (1) 8.6 8.9 9.3
Rent (1) 13.8 13.9 13.9
Depreciation (1) 3.3 3.3 3.4
Direct salon contribution (1) 17.7 17.1 15.8
Selling, general and administrative 11.3 11.5 11.8
Depreciation and amortization 1.3 1.2 1.1
Nonrecurring items 1.7 0.2 2.5
Operating income 6.4 7.5 4.2
Income before income taxes 5.4 6.4 3.0
Net income 3.1 3.9 1.1
Operating income, excluding nonrecurring items 8.1 7.8 6.6
Net income, excluding nonrecurring items 4.3 4.0 3.0
</TABLE>
(1) Computed as a percent of company-owned revenues
(2) Computed as a percent of service revenues
(3) Computed as a percent of product revenues
12 Regis Corporation 1999
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF RESULTS OF OPERATIONS AND FINANCIAL CONDITION
SUMMARY
Regis Corporation, based in Minneapolis, is the largest owner,
operator, franchisor and consolidator of hair and retail product salons in
the world. The Regis worldwide operations include 4,954 hairstyling salons at
June 30, 1999 operating in two segments: domestic and international. The
Company's domestic segment includes 4,650 salons operating primarily under
the brand names of Regis Salons, MasterCuts, Trade Secret, SmartStyle,
Supercuts and Cost Cutters. The Company's international operations include
304 salons located in the United Kingdom. The Company has more than 31,000
employees worldwide.
During fiscal 1999, the Company's consolidated revenues increased 14.9
percent to $974.9 million. Exclusive of nonrecurring items, operating income
grew 20.0 percent to $78.9 million and net income per diluted share increased
20.7 percent to $1.05 per share, compared to $.87 per share in the prior
year. During fiscal 1998, the Company's consolidated revenues increased 12.2
percent to a record $848.4 million. Exclusive of nonrecurring items,
operating income grew 30.8 percent to $65.8 million and net income per
diluted share increased 42.6 percent to $.87 per share, compared to $.61 per
share in the prior year.
Financial data presented for fiscal 1998 and 1997 reflect the retroactive
effects of the March 1999 merger with Heidi's, Inc. (Heidi's) and the May
1999 merger with The Barbers, Hairstyling for Men & Women, Inc. (The Barbers)
which were accounted for as poolings-of interests (see Note 3 to the
Consolidated Financial Statements). The financial statements have been
prepared by combining the historical financial statements of Regis
Corporation with those of Heidi's and The Barbers for each of these periods.
RESULTS OF OPERATIONS
REVENUES
Revenues in fiscal 1999 grew to a record $974.9 million, an increase of
$126.4 million, or 14.9 percent, over fiscal 1998. Approximately 30 percent
of this increase is attributable to increases in same-store sales, with the
remaining increase due to net salon openings and acquisitions occurring in
fiscal 1999 and the full year impact of fiscal 1998 net salon openings and
acquisitions. Mall based and strip center salon operations in the United
States and Canada (Domestic salons) accounted for $129.9 million of the
increase in total revenues. Franchise income increased $1.8 million due to an
increase in sales of franchised salons. These increases were offset by a
decrease in revenue from the Company's International operations. During
fiscal 1999, the Company closed or disposed of its salon operations in South
Africa, Mexico, Ireland, Switzerland and France which resulted in a decrease
in revenues when compared to fiscal 1998.
BUSINESS MIX
(DOLLARS IN THOUSANDS)
1999 1998 1997
Domestic:
Regis $356,473 $319,404 $297,454
MasterCuts $123,454 $107,821 $ 94,963
Trade Secret $136,874 $115,024 $ 91,412
Wal-Mart $ 63,480 $ 45,908 $ 34,625
Strip Centers $145,888 $108,146 $ 94,904
Franchise Income $ 47,732 $ 45,965 $ 43,536
International: $100,971 $106,176 $ 99,848
-------- -------- --------
$974,872 $848,444 $756,242
======== ======== ========
REGIS CORPORATION 1999 13
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF RESULTS OF OPERATIONS AND FINANCIAL CONDITION
During fiscal 1999, same-store sales from all Domestic company-owned salons
open more than 12 months increased 5.6 percent, compared to increases of 5.8
percent and 3.1 percent in fiscal 1998 and 1997, respectively. Same-store
sales for the United Kingdom salons (U.K. salons) increased 1.2 percent in
fiscal 1999. Same-store sales increases achieved during fiscal 1999, 1998 and
1997 were driven primarily by increased customer transactions and market
based price increases in certain salon divisions. A total of 98 million
customers were served in fiscal 1999 compared to 91 million and 85 million
customers served in fiscal 1998 and 1997, respectively. The Company utilizes
an audiovisual-based training system in its salons. Management believes this
training system provides its employees with improved customer service and
technical skills, and positively contributes to the increase in customers
served.
System-wide sales, inclusive of non-consolidated sales generated from
franchisee salons, grew to $1.5 billion, $1.3 billion, and $1.1 billion in
fiscal 1999, 1998 and 1997, representing increases of 15.4 percent, 18.2
percent and 10.0 percent, respectively. The increase in system-wide sales in
fiscal 1999 and 1998 was the result of same-store sales increases from
existing salons and net salon openings as well as the total number of salons
added to the system through acquisitions. System-wide same-store sales
increased 5.4 percent, 5.3 percent and 2.6 percent in fiscal 1999, 1998 and
1997, respectively.
SERVICE REVENUES increased to $663.5 million, $576.5 million and $521.0
million for 1999, 1998 and 1997. The growth in service revenues of 15.1
percent and 10.7 percent in fiscal 1999 and 1998, respectively, was driven by
acquisitions, same store-sales growth, and accelerated new salon construction.
PRODUCT REVENUES increased to $263.7 million, $226.0 million and $191.7
million in fiscal 1999, 1998 and 1997. The growth in product revenue of 16.7
percent and 17.9 percent in fiscal 1999 and 1998, respectively, continues a
trend of escalating product revenues due to strong product same-store sales
growth, a reflection of continuous focus on product awareness, training and
acceptance of national label merchandise and opening an additional 108 Trade
Secret salons through new construction or acquisitions between the two
periods. In fiscal 1999, product revenues as a percent of total company-owned
revenues increased to 28.4 percent of revenues, compared to 28.2 percent and
26.9 percent of revenues in 1998 and 1997, respectively.
FRANCHISE REVENUE, including royalties and initial franchise fees from
franchisees, and product and equipment sales made by the Company to
franchisees, increased 3.8 percent in fiscal 1999 to $47.7 million from $46.0
million in fiscal 1998. In fiscal 1998, franchise revenue increased 5.6
percent, or $2.4 million, compared to fiscal 1997. The increase in franchise
revenue in 1999 and 1998 is primarily the result of an increase in royalties
on increased franchise sales, which sales are not included in the Company's
consolidated revenues and an increase in product and equipment sales to
franchisees.
REVENUES INCREASED 15 PERCENT FROM 1998.
REVENUE COMPONENTS
5 YEAR COMPOUND ANNUAL GROWTH RATE:
14.7%
$ MILLIONS
1997 1998 1999
Service 521.0 576.5 663.5
Product 191.7 226.0 263.7
Franchise 43.5 45.9 47.7
Total $756.2 $848.4 $974.9
14 REGIS CORPORATION 1999
<PAGE>
COST OF REVENUE
The aggregate cost of product and service revenues in fiscal 1999 was $524.1
million, compared to $455.7 million and $410.8 million in fiscal 1998 and 1997,
respectively. As discussed in the following paragraphs, the resulting gross
margin percentage for fiscal 1999 improved to 43.5 percent of company-owned
revenues compared to 43.2 percent and 42.4 percent of company-owned revenues in
fiscal 1998 and 1997.
SERVICE MARGINS for fiscal 1999 improved 10 basis points to 42.4 percent of
company-owned revenues, compared to 42.3 percent and 41.4 percent in the two
preceding fiscal years. This continued improvement was driven by ongoing
efforts by the Company to control payroll costs in all operating divisions
and growth in the mix of the Company's higher service margin salon concepts,
primarily Supercuts, MasterCuts and Wal-Mart/SmartStyle.
PRODUCT MARGINS for fiscal 1999 improved to 46.2 percent of company-owned
revenues, compared to 45.4 percent and 45.1 percent in fiscal 1998 and 1997.
This 80 basis point improvement was primarily driven by lower product costs
in Supercuts and Trade Secret salons resulting from the benefit of Regis'
purchasing power. Fiscal 1998 product margins also benefited from lower
product costs, primarily in the Supercuts and Wal-Mart/SmartStyle salons.
COMBINED GROSS
MARGINS CONTINUED
TO IMPROVE IN 1999.
COMBINED GROSS MARGINS
1997 1998 1999
42.4% 43.2% 43.5%
DIRECT SALON
This expense category includes direct costs associated with salon operations
such as advertising, promotion, insurance, telephone and utilities. Direct
salon expenses were $80.0 million in fiscal 1999, compared to $71.7 million
and $66.3 million in fiscal 1998 and 1997, and improved as a percent of
company-owned revenue to 8.6 percent, compared to 8.9 percent and 9.3 percent
in fiscal 1998 and 1997. The fiscal 1999 improvement in direct salon expenses
is a result of the Company's increased ability to leverage these costs
against strong same-store sales and a maturing salon base. The fiscal 1998
improvement in direct salon expenses was due to the closures of
under-performing stores, primarily Supercuts salons, as well as sales
leverage.
DIRECT SALON
CONTRIBUTION
INCREASED 60 BASIS
POINTS OVER 1998.
DIRECT SALON CONTRIBUTION
1997 1998 1999
15.8% 17.1% 17.7%
RENT
Rent expense in fiscal 1999 was $127.9 million, compared to $111.8 million
and $99.0 million in fiscal 1998 and 1997. Rent expense in fiscal 1999
increased 14.4 percent or $16.1 million from fiscal 1998. Rent expense in
fiscal 1999 improved 10 basis points to 13.8 percent of company-owned
revenues compared to 13.9 percent in fiscal 1998 and 1997, respectively. The
slight improvement is a result of leveraging this fixed cost against
same-store sales increases.
DEPRECIATION--SALON LEVEL
Depreciation expense at the salon level remained consistent in fiscal 1999 at
3.3 percent of revenues compared to 3.3 percent and 3.4 percent in fiscal 1998
and 1997.
REGIS CORPORATION 1999 15
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF RESULTS OF OPERATIONS AND FINANCIAL CONDITION
DIRECT SALON CONTRIBUTION
For reasons previously discussed, direct salon contribution, representing
company-owned salon revenues less associated operating expenses, improved in
fiscal 1999 to $164.2 million or 17.7 percent of company-owned revenues,
compared to $137.0 million or 17.1 percent in fiscal 1998 and $112.5 million
or 15.8 percent in fiscal 1997.
SELLING, GENERAL AND ADMINISTRATIVE
Selling, general and administrative (SG&A) expenses include field
supervision (payroll, related taxes and travel) and home office
administration costs (such as warehousing, salaries, occupancy costs and
professional fees). SG&A expenses increased $12.5 million in fiscal 1999 to
$110.3 million, compared to $97.9 million in fiscal 1998, but improved as a
percent of total revenue to 11.3 percent in 1999 from 11.5 percent and 11.8
percent in fiscal 1998 and 1997, respectively. The 20 basis point improvement
in SG&A in 1999 is a result of the Company's ability to leverage the fixed
cost components of this category against revenue increases. The 30 basis
point improvement in SG&A in fiscal 1998 was primarily driven by cost
reductions associated with the amalgamation of the Supercuts administrative
office functions.
DEPRECIATION AND AMORTIZATION--CORPORATE
Depreciation and amortization--corporate was 1.3 percent of total revenues in
1999, compared to 1.2 percent and 1.1 percent of total revenues in fiscal
1998 and 1997, respectively. Amortization expense increased in fiscal 1999
and 1998 due to the increased level of goodwill, associated with the
Company's salon acquisition activity. Fiscal 1999 depreciation expense
increased over fiscal 1998 and 1997, primarily due to increased depreciation
levels associated with the Company's fiscal 1998 purchases of additional
corporate office buildings and new distribution center.
NONRECURRING ITEMS
See Note 10 to the Consolidated Financial Statements.
OPERATING INCOME
Operating income in fiscal 1999 was $62.8 million, compared to $63.8 million
in fiscal 1998. Fiscal 1999 operating income was impacted by merger and
transaction costs associated with the Heidi's and The Barbers mergers, a
nonrecurring charge related to restructuring the Company's International
operations and nonrecurring costs associated with the Company's year 2000
remediation program.
Operating income increased to $63.8 million in 1998 from $31.6 million in
fiscal 1997. Fiscal 1997 was significantly affected by Supercuts-related
merger and transaction costs, and restructuring charges (nonrecurring items).
Exclusive of nonrecurring items, operating income in fiscal 1999 improved
20.0 percent to $78.9 million, or 8.1 percent of revenues, compared to $65.8
million and $50.3 million in fiscal 1998 and 1997, respectively. The annual
improvements were driven by improved gross margins and the overall leveraging
of fixed costs.
OPERATING INCOME
INCREASED 20%
OVER 1998.
OPERATING INCOME
$ MILLIONS
EXCLUDING NONRECURRING ITEMS
1997 1998 1999
$50.3 $65.8 $78.9
16 REGIS CORPORATION 1999
<PAGE>
INTEREST
Interest expense in fiscal 1999 was $11.6 million, compared to $10.5
million and $10.7 million in fiscal 1998 and 1997, representing 1.2 percent,
1.2 percent and 1.4 percent of total revenues, respectively. Although debt
levels have increased, interest expense as a percent of sales has remained
relatively consistent due to the benefit of reduced interest rates and the
Company's ability to leverage this cost against revenue increases.
INCOME TAXES
The Company's effective tax rate in fiscal 1999 was 42.5 percent of pre-tax
income compared to 39.9 percent and 63.1 percent in fiscal 1998 and 1997. In
fiscal 1999, the Company's effective tax rate was negatively impacted by
nondeductible merger and transaction costs associated with the Company's
mergers with Heidi's and The Barbers, and the U.K. restructuring charges. In
fiscal 1997, the Company's effective tax rate was negatively affected by
nondeductible merger and transaction costs associated with the Supercuts
merger.
Exclusive of nonrecurring items, the Company's effective tax rate was 39.2
percent, 39.9 percent and 42.7 percent, respectively, in fiscal 1999, 1998
and 1997. In fiscal 1999, the Company's effective tax rate benefited from net
operating losses utilized by Heidi's, Inc. prior to the merger and an
increase in international pre-tax income during the fourth quarter of fiscal
1999 which is taxed at a lower rate. The fiscal 1997 effective tax rate was
negatively affected by the Company's inability to fully utilize the income
tax benefits of Supercuts operating costs in certain states. Additionally, as
part of its June 30, 1997 income tax provision, the Company recorded a $1.5
million change in estimate associated with income tax matters related to
years prior to 1997.
NET INCOME
Net income in fiscal 1999 was $30.3 million, or $0.76 per diluted share,
compared to net income of $32.7 million, or $.84 per diluted share, in fiscal
1998, and $8.3 million, or $.22 per diluted share, in fiscal 1997. Exclusive
of nonrecurring items, net income in fiscal 1999 increased to a record $41.9
million, or $1.05 per diluted share, compared to net income, exclusive of
nonrecurring items, of $33.8 million, or $.87 per diluted share, in fiscal
1998 and $23.0 million, or $.61 per diluted share in fiscal 1997. Earnings
per diluted share, exclusive of nonrecurring items, increased 20.7 percent
and 42.6 percent in fiscal 1999 and 1998, respectively. These increases
primarily resulted from sales increases, improved gross margins and
leveraging of fixed costs, as previously discussed.
EARNINGS PER SHARE
INCREASED 21% OVER
1998.
EARNINGS PER SHARE
DILUTED
EXCLUDING NONRECURRING ITEMS
1997 1998 1999
$0.61 $0.87 $1.05
REGIS CORPORATION 1999 17
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF RESULTS OF OPERATIONS AND FINANCIAL CONDITION
EFFECTS OF INFLATION
The Company compensates its Regis and International salon employees with
percentage commissions based on sales they generate, thereby enabling salon
payroll expense as a percent of revenues to remain relatively constant.
Accordingly, this provides the Company certain protection against
inflationary increases as payroll expense and related benefits (the Company's
major expense components) are, with respect to these divisions, variable
costs of sales. The Company does not believe inflation, due to its low rate,
has had a significant impact on the results of operations associated with
hourly paid hairstylists for the remainder of its mall-based and strip center
salons.
LIQUIDITY AND CAPITAL RESOURCES
Customers pay for salon services and merchandise in cash at the time of
sale, which reduces the Company's working capital requirements. Net cash
provided by operating activities in fiscal 1999 rose to $72.2 million
compared to $70.7 million in fiscal 1998. The increase in fiscal 1999 is due
to improved operating performance during the year partially offset by cash
paid for merger costs associated with The Barbers and Heidi's mergers of $3.0
million and the U.K. restructuring of $.3 million.
CAPITAL EXPENDITURES AND ACQUISITIONS
During fiscal 1999, the Company had worldwide capital expenditures of $76.2
million, of which $6.4 million related to acquisitions of 280 salons and $3.5
million for equipment acquired under capital leases. During fiscal 1999, the
Company constructed 282 new salons. The Company also completed 95 major
remodeling projects. All capital expenditures during fiscal 1999 were funded
by the Company's operations and borrowings under its revolving credit
facility.
NEW SALON CONSTRUCTION 1999
Regis 41
MasterCuts 47
Trade Secret 44
Wal-Mart/SmartStyle 78
Strip Centers (primarily Supercuts) 60
International 12
The Company anticipates its worldwide salon development program for fiscal
2000 will include approximately 360 new salons and 125 major remodeling and
conversion projects. It is expected that expenditures for these new salons
and other projects will be approximately $66.0 million in fiscal 2000,
excluding capital expenditures associated with acquisitions.
PROJECTED SALON CONSTRUCTION 2000
Regis 50
MasterCuts 50
Trade Secret 45
Wal-Mart/SmartStyle 120
Strip Centers (primarily Supercuts) 85
International 10
FINANCING
Financing activities are discussed in Note 4 to the Consolidated Financial
Statements.
Subsequent to the company's fiscal 1999 year end, the Company replaced both
of its existing revolving credit facilities with a new senior credit facility
which allows for borrowings of $180 million due in July, 2002, and bears
interest at prime rate or LIBOR rate plus .50 percent to 1.00 percent, based
on the Company's debt to capitalization ratio.
Merger and transaction costs are discussed in Note 3 to the Consolidated
Financial Statements.
Nonrecurring items are discussed in Note 10 to the Consolidated Financial
Statements.
18 REGIS CORPORATION 1999
<PAGE>
The Company translates the financial statements of its international
subsidiaries to U.S. dollars for financial reporting purposes, and accordingly
is subject to fluctuations in currency exchange rates.
Management believes that cash generated from operations and amounts available
under its existing debt facilities will be sufficient to fund its anticipated
capital expenditures and required debt repayments for the foreseeable future.
DIVIDENDS
In February 1999, the board of directors approved a three-for-two stock
split of its common stock in the form of a 50 percent stock dividend
distributed on March 1, 1999 to shareholders of record on February 15, 1999.
All share and per share amounts have been restated to reflect the stock split.
The Company paid dividends of $.10 per share during fiscal 1999 and $.06 per
share during fiscal 1998. On August 24, 1999 the Board of Directors of the
Company declared a $.03 per share quarterly dividend payable September 22,
1999 to shareholders of record on September 7, 1999.
RETURN ON EQUITY
INCREASED 20 BASIS
POINTS IN 1999.
RETURN ON EQUITY
NET INCOME BEFORE
NONRECURRING ITEMS AS A
PERCENT OF
AVERAGE EQUITY
1997 1998 1999
16.0% 19.1% 19.3%
YEAR 2000
The Company previously initiated a comprehensive project to prepare its
computer systems for the Year 2000. The Company has completed all phases of
the project including the awareness, assessment, validation and
implementation phases. Accordingly, management believes the Year 2000 will
not have a significant impact on operations. As part of the overall project,
the Company is in the process of developing a contingency plan to mitigate
the Company's risk that primary vendors or other external forces could have
an impact on the Company's operations.
Costs associated with the Year 2000 are expensed as incurred and are funded
through operating cash flows. The Company has incurred $4.6 million related
to Year 2000 project costs from the project's inception in fiscal 1998
through fiscal 1999, of which $4.1 million was incurred and charged to
earnings during fiscal 1999. No significant additional costs are anticipated
to be incurred in the future.
The Company has contacted critical suppliers of products and services to
assess whether the suppliers' operations and the products and services they
provide are Year 2000 compliant or to monitor their progress toward Year 2000
compliance. The results of the Company's inquiries have indicated that the
majority of our critical suppliers are either compliant or have a plan in
place to be compliant by the end of 1999. There can be no absolute assurance
that another company's failure to ensure Year 2000 compliance would not have
an adverse effect on the Company.
REGIS CORPORATION 1999 19
<PAGE>
CONSOLIDATED BALANCE SHEET
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
JUNE 30
1999 1998
<S> <C> <C>
ASSETS
Current assets:
Cash $ 7,351 $ 7,678
Receivables, net 16,506 14,414
Inventories 70,056 56,030
Deferred income taxes 8,596 6,429
Other current assets 10,570 6,818
-----------------------------
Total current assets 113,079 91,369
Property and equipment, net 213,299 181,107
Goodwill 153,954 119,042
Other assets 13,292 11,396
-----------------------------
Total assets $ 493,624 $ 402,914
=============================
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Long-term debt, current portion $ 23,945 $ 20,091
Accounts payable 22,754 25,394
Accrued expenses 53,310 43,595
-----------------------------
Total current liabilities 100,009 89,080
Long-term debt 143,041 106,537
Other noncurrent liabilities 14,377 8,939
Commitments (Note 5)
Shareholders' equity:
Common stock, $.05 par value; issued and outstanding, 38,641,122 and
38,238,121 common shares at June 30, 1999 and 1998,
respectively 1,932 1,275
Additional paid-in capital 148,591 138,677
Accumulated other comprehensive loss (1,148) (1,677)
Retained earnings 86,822 60,083
-----------------------------
Total shareholders' equity 236,197 198,358
-----------------------------
Total liabilities and shareholders' equity $ 493,624 $ 402,914
=============================
</TABLE>
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THE CONSOLIDATED FINANCIAL
STATEMENTS.
20 REGIS CORPORATION 1999
<PAGE>
CONSOLIDATED STATEMENT OF OPERATIONS
(DOLLARS AND SHARES IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
YEARS ENDED JUNE 30
1999 1998 1997
<S> <C> <C> <C>
Revenues:
Company-owned salons:
Service $ 663,426 $ 576,497 $ 520,990
Product 263,714 225,982 191,716
----------------------------------------------
927,140 802,479 712,706
Franchise income 47,732 45,965 43,536
----------------------------------------------
974,872 848,444 756,242
----------------------------------------------
Operating expenses:
Company-owned:
Cost of service 382,080 332,360 305,550
Cost of product 142,002 123,323 105,242
Direct salon 79,979 71,661 66,315
Rent 127,876 111,758 99,037
Depreciation 31,024 26,361 24,027
----------------------------------------------
762,961 665,463 600,171
Selling, general and administrative 110,336 97,875 88,963
Depreciation and amortization 12,983 10,012 8,403
Nonrecurring items 16,133 1,979 18,731
Other 9,657 9,299 8,419
----------------------------------------------
Total operating expenses 912,070 784,628 724,687
----------------------------------------------
Operating income 62,802 63,816 31,555
Other income (expense):
Interest (11,576) (10,492) (10,674)
Other, net 1,507 1,104 1,519
----------------------------------------------
Income before income taxes 52,733 54,428 22,400
Income taxes (22,387) (21,729) (14,142)
----------------------------------------------
Net income $ 30,346 $ 32,699 $ 8,258
==============================================
Net income per share:
Basic $ .79 $ .87 $ .23
==============================================
Diluted $ .76 $ .84 $ .22
==============================================
Weighted average common and
common equivalent shares outstanding 39,740 38,826 37,489
==============================================
</TABLE>
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THE CONSOLIDATED FINANCIAL
STATEMENTS.
REGIS CORPORATION 1999 21
<PAGE>
CONSOLIDATED STATEMENTS OF CHANGES ON SHAREHOLDERS' EQUITY
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
ACCUMULATED
COMMON STOCK ADDITIONAL OTHER
PAID-IN COMPREHENSIVE RETAINED COMPREHENSIVE
SHARES AMOUNT CAPITAL INCOME (LOSS) EARNINGS TOTAL INCOME
<S> <C> <C> <C> <C> <C> <C> <C>
Balance, June 30, 1996 24,173,835 $ 1,209 $ 110,595 $ (2,088) $ 22,963 $ 132,679
Net income 8,258 8,258 $ 8,258
Foreign currency translation
adjustments 739 739 739
Proceeds from sale of common
stock 500,000 25 11,100 11,125
Proceeds from exercise of stock
options 271,082 14 3,696 3,710
Shares issued under company-
sponsored programs 15,058 1 237 238
Tax benefit realized upon exercise
of stock options 853 853
Dividends (1,722) (1,722)
-------------------------------------------------------------------------------------------
Balance, June 30, 1997 24,959,975 1,249 126,481 (1,349) 29,499 155,880 $ 8,997
==========
Net income 32,699 32,699 32,699
Foreign currency translation
adjustments (328) (328) (328)
Proceeds from sale of common
stock 400,000 20 10,390 10,410
Proceeds from exercise of stock
options 124,605 6 1,348 1,354
Shares issued under company-
sponsored programs 4,415 61 61
Tax benefit realized upon
exercise of stock options 397 397
Dividends (2,115) (2,115)
-------------------------------------------------------------------------------------------
Balance, June 30, 1998 25,488,995 1,275 138,677 (1,677) 60,083 198,358 $ 32,371
==========
Net income 30,346 30,346 30,346
Foreign currency translation
adjustments 529 529 529
Less: Reclassification adjustment
for translation losses realized
in net income (964)
Stock split effected in the form
of a stock dividend 12,741,490 637 (637)
Proceeds from exercise of stock
options 309,929 15 3,794 3,809
Shares issued under company-
sponsored programs 17,941 1 235 236
Shares issued in connection
with salon acquisitions 82,767 4 2,103 2,107
Tax benefit realized upon exercise
of stock options 1,389 1,389
Contribution of shareholder
debt to capital 3,030 3,030
Dividends (3,607) (3,607)
-------------------------------------------------------------------------------------------
Balance, June 30, 1999 38,641,122 $ 1,932 $ 148,591 $ (1,148) $ 86,822 $ 236,197 $ 29,911
===========================================================================================
</TABLE>
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THE CONSOLIDATED FINANCIAL
STATEMENTS.
22 REGIS CORPORATION 1999
<PAGE>
CONSOLIDATED STATEMENT OF CASH FLOWS
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
YEARS ENDED JUNE 30
1999 1998 1997
<S> <C> <C> <C>
Cash flows from operating activities:
Net income $ 30,346 $ 32,699 $ 8,258
Adjustments to reconcile net income
to net cash provided by operating activities:
Depreciation 35,772 30,176 26,951
Amortization 8,296 6,455 5,808
Deferred income taxes (1,065) 7,143 1,059
Nonrecurring items 4,400 1,979 330
Other 1,638 233 537
Changes in operating assets and liabilities:
Accounts receivable (3,338) 1,992 (2,199)
Inventories (9,988) (11,335) (8,385)
Other current assets (3,649) 1 2,367
Other assets (2,191) (2,075) (2,096)
Accounts payable (3,120) (1,733) 6,556
Accrued expenses 11,055 3,919 (3,589)
Other noncurrent liabilities 4,011 1,229 (729)
----------------------------------------------
Net cash provided by operating activities 72,167 70,683 34,868
----------------------------------------------
Cash flows from investing activities:
Capital expenditures (66,325) (57,705) (40,831)
Proceeds from sale of assets 4,453 501 425
Purchases of salon assets, net of cash acquired
and certain obligations assumed (51,017) (24,837) (10,370)
-----------------------------------------------
Net cash used in investing activities (112,889) (82,041) (50,776)
-----------------------------------------------
Cash flows from financing activities:
Borrowings on revolving credit facilities 237,668 163,254 187,328
Payments on revolving credit facilities (225,075) (148,952) (203,425)
Proceeds from issuance of long-term debt 46,533 9,000 47,000
Repayment of long-term debt (18,768) (25,506) (21,379)
Increase (decrease) in negative book cash balances 602 (4,992)
Dividends paid (3,607) (2,115) (1,722)
Proceeds from issuance of common stock 3,701 11,825 15,073
-----------------------------------------------
Net cash provided by financing activities 40,452 8,108 17,883
-----------------------------------------------
Effect of exchange rate changes on cash (57) (77) 8
-----------------------------------------------
(Decrease) increase in cash (327) (3,327) 1,983
Cash:
Beginning of year 7,678 11,005 9,022
-----------------------------------------------
End of year $ 7,351 $ 7,678 $ 11,005
===============================================
</TABLE>
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THE CONSOLIDATED FINANCIAL
STATEMENTS.
REGIS CORPORATION 1999 23
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. BUSINESS DESCRIPTION AND SIGNIFICANT ACCOUNTING POLICIES:
BUSINESS DESCRIPTION:
Regis Corporation (the Company) owns, operates and franchises hairstyling
and hair care salons throughout the United States, the United Kingdom, Canada
and Puerto Rico. Substantially all of the hairstyling and hair care salons
owned and operated by the Company in the United States are located in leased
space in enclosed mall shopping centers or strip shopping centers. Franchised
salons are primarily located in strip shopping centers throughout the United
States.
At June 30, 1999, approximately 15 percent of the Company's outstanding
common stock is owned by Curtis Squire, Inc. (CSI), which is a holding
company controlled by the Chairman of the Board of Directors of the Company,
and approximately 5 percent is owned by management and the Company's benefit
plans.
BASIS OF PRESENTATION:
Consolidated financial statements for 1998 and 1997 have been restated to
include the retroactive effects of the March 1999 merger with Heidi's, Inc.
(Heidi's) and the May 1999 merger with The Barbers, Hairstyling for Men &
Women, Inc. (The Barbers). Both transactions were accounted for as
poolings-of-interests (Note 3).
RECLASSIFICATION:
Certain prior period amounts have been reclassified to conform to the current
year presentation.
CONSOLIDATION:
The financial statements include the accounts of the Company and all of its
wholly-owned subsidiaries. In consolidation, all material intercompany accounts
and transactions are eliminated.
FOREIGN CURRENCY TRANSLATION:
Financial position, results of operations and cash flows of the Company's
international subsidiaries are measured using local currency as the functional
currency. Assets and liabilities of these subsidiaries are translated at the
exchange rates in effect at each fiscal year end. Income statement accounts are
translated at the average rates of exchange prevailing during the year.
Translation adjustments arising from the use of differing exchange rates from
period to period are included in accumulated other comprehensive income (loss)
within shareholders' equity.
INVENTORIES:
Inventories consist principally of hair care products held either for use in
salon services or for sale. Inventories are stated at the lower of cost or
market with cost determined on the first-in, first-out method.
PROPERTY AND EQUIPMENT:
Property and equipment are carried at cost, less accumulated depreciation
and amortization. Depreciation and amortization of property and equipment are
computed on the straight-line method over estimated useful asset lives
(shorter of asset life or lease term for leasehold improvements).
Expenditures for maintenance and repairs and minor renewals and betterments
which do not improve or extend the life of the respective assets are
expensed. All other expenditures for renewals and betterments are
capitalized. The assets and related depreciation accounts are adjusted for
property retirements and disposals with the resulting gain or loss included
in operations. Fully depreciated assets remain in the accounts until retired
from service.
Effective July 1, 1998, the Company adopted Statement of Position (SOP) 98-1,
"Accounting for the Costs of Computer Software Developed or Obtained for
Internal Use". The SOP requires the Company to capitalize both internal and
external costs of developing or obtaining computer software for internal use
based on certain criteria. Previously, the Company only capitalized costs
associated with externally developed or purchased computer software.
GOODWILL:
Goodwill recorded in connection with the fiscal 1989 purchase of the
publicly held minority interest in the Company, and acquisitions of business
operations in which the Company has not previously been involved, is
amortized on a straight-line basis, generally over 40 years. Goodwill
recorded in connection with acquisitions which expand the Company's existing
business activities (acquisition of salon sites) is amortized on a
straight-line basis, generally over 20 years.
ASSET IMPAIRMENT ASSESSMENTS:
The Company periodically measures and evaluates the recoverability of its
tangible and intangible noncurrent assets using undiscounted cash flow
analyses.
FRANCHISE INCOME AND EXPENSES:
Franchise income includes royalties, initial franchise fees from franchisees
and sales of product and equipment to franchisees. Royalties are recognized
as income in the month in which franchisee services are rendered or products
are sold by franchisees. The Company recognizes income from initial franchise
fees at the time franchisee salons are opened. Product sales by the Company
to franchisees are recorded at the time product is shipped to franchise
locations. Franchise expenses include all direct expenses such as the cost of
product and equipment sold to franchisees, salaries, marketing costs, and an
allocation of general corporate overhead and occupancy expenses. Cost of
product and equipment sold to franchisees is included in other operating
expenses in the Consolidated Statement of Operations. All other expenses
described above associated with franchise operations are included in selling,
general and administrative expenses in the Consolidated Statement of
Operations.
24 REGIS CORPORATION 1999
<PAGE>
INCOME TAXES:
Deferred income tax assets and liabilities are recognized for the expected
future tax consequences of events that have been included in the financial
statements or tax returns. Deferred income tax assets and liabilities are
determined based on the differences between the financial statement and tax
bases of assets and liabilities using currently enacted tax rates in effect
for the years in which the differences are expected to reverse. Income tax
expense is the current tax payable for the period and the change during the
period in deferred tax assets and liabilities.
NET INCOME PER SHARE:
Basic earnings per share is calculated as net income divided by
weighted-average common shares outstanding. The Company's only dilutive
securities are issuable under the Company's stock option plan. Diluted
earnings per share is calculated as net income divided by weighted-average
common shares outstanding, increased to include assumed exercise of dilutive
stock options (common equivalent shares).
The following table sets forth a reconciliation of shares used in the
computation of basic and diluted earnings per share:
<TABLE>
<CAPTION>
1999 1998 1997
<S> <C> <C> <C>
Weighted average shares
for basic earnings
per share 38,426,712 37,712,951 36,402,041
Dilutive effect of stock
options 1,312,886 1,112,825 1,087,282
----------------------------------------------
Weighted average shares
for diluted earnings
per share 39,739,598 38,825,776 37,489,323
==============================================
</TABLE>
USE OF ESTIMATES:
The preparation of consolidated financial statements in conformity with
generally accepted accounting principles requires management to make certain
estimates and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at the date of
the financial statements and the reported amounts of revenues and expenses
during the reporting period. Actual results could differ from those estimates.
COMPREHENSIVE INCOME:
Effective July 1, 1998, the Company adopted Statement of Financial Accounting
Standards (SFAS) No. 130, "Reporting Comprehensive Income". This statement
established standards for reporting and presenting comprehensive income and its
components. Components of comprehensive income for the Company include net
income and foreign currency translation adjustments and are presented in the
Consolidated Statements of Changes in Shareholders' Equity and Comprehensive
Income.
2. OTHER FINANCIAL STATEMENT DATA
The following provides additional information concerning selected balance sheet
accounts:
<TABLE>
<CAPTION>
(DOLLARS IN THOUSANDS)
1999 1998
<S> <C> <C>
Property and equipment:
Land $ 2,190 $ 2,190
Buildings and improvements 20,377 19,468
Equipment, furniture, software
and leasehold improvements 340,105 285,336
Equipment, furniture and lease-
hold improvements under
capital leases 14,093 13,718
---------------------------
376,765 320,712
Less accumulated depreciation
and amortization (157,828) (135,730)
Less amortization of equipment,
furniture and leasehold
improvements under capital
leases (5,638) (3,875)
---------------------------
$ 213,299 $ 181,107
===========================
Goodwill $ 190,272 $ 147,123
Less accumulated amortization (36,318) (28,081)
---------------------------
$ 153,954 $ 119,042
===========================
Accrued expenses:
Payroll and payroll related costs $ 26,308 $ 24,700
Insurance 8,656 6,989
Transaction and restructuring 5,981 1,630
Other 12,365 10,276
---------------------------
$ 53,310 $ 43,595
===========================
</TABLE>
Transaction and Restructuring:
<TABLE>
<CAPTION>
UTILIZATION
JULY 1, 1999 JUNE 30,
1998 CHARGE CASH NON-CASH 1999
<S> <C> <C> <C> <C> <C>
Restructuring--
International
Severance $ 966 $ (404) $ 562
Salon closures
& dispositions 3,806 193 $ (2,812) 1,187
Other 844 (105) (388) 351
--------------------------------------------------------------------
5,616 (316) (3,200) 2,100
Restructuring--Mergers
Severance $ 1,232 2,526 (875) 2,883
Salon closures
& dispositions 398 430 (93) (620) 115
Other 1,400 (74) (580) 746
--------------------------------------------------------------------
1,630 4,356 (1,042) (1,200) 3,744
Transaction Charges--
Mergers 2,066 (1,929) 137
--------------------------------------------------------------------
1,630 $12,038 $ (3,287) $ (4,400) $ 5,981
====================================================================
</TABLE>
REGIS CORPORATION 1999 25
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
The following provides supplemental disclosures of cash flow activity:
<TABLE>
<CAPTION>
(DOLLARS IN THOUSANDS)
1999 1998 1997
<S> <C> <C> <C>
Cash paid during the
year for:
Interest $ 11,256 $ 10,111 $ 10,985
Income taxes $ 24,180 $ 14,486 $ 13,985
</TABLE>
Non-cash investing and financing activities include the following:
- - In 1999 and 1998, the Company financed capital expenditures totaling $3.5
million and $5.9 million, respectively, through the issuance of capital
leases.
- - In 1999, in connection with the Company's merger with Heidi's, a
shareholder contributed a $3.0 million note to equity.
- - In 1999 and 1998, in connection with various acquisitions, the Company
entered into seller-financed payables and non-compete agreements as well
as issuing 82,767 shares of the Company's stock (Note 3).
- - In 1997, in connection with various acquisitions, the Company entered into
seller-financed notes payable of approximately $2.6 million.
3. MERGERS AND ACQUISITIONS:
THE BARBERS, HAIRSTYLING FOR MEN & WOMEN, INC. MERGER:
Effective May 20, 1999, the Company consummated the merger with The Barbers,
Hairstyling for Men & Women, Inc. (The Barbers) in a stock-for-stock
transaction. The Barbers was a national operator and franchisor of 979
affordable hair care salons. Each shareholder of The Barbers received .50
shares of the Company's common stock in exchange for each share of The
Barbers common stock, resulting in the issuance of approximately 2.0 million
shares of the Company's common stock. The Barbers transaction has been
accounted for as a pooling-of-interests. Prior period financial statements
have been restated to reflect this merger as if the merged companies had
always been combined.
As a result of the merger, the Company recorded a nonrecurring charge of $4.8
million during the quarter ended June 30, 1999. This charge included $1.4
million for professional fees including investment banking, legal, accounting
and miscellaneous transaction costs and $3.4 million for severance and other
costs, principally associated with the closure of The Barbers headquarters.
Severance expense of $2.1 million covered the termination of approximately 20
employees of The Barbers who had duplicate positions within the corporate
office functions. These corporate overhead departments primarily included
finance, accounting and human resources.
Revenues and net income for each of the combining entities prior to the merger
were as follows (dollars in thousands):
<TABLE>
<CAPTION>
NINE MONTHS YEAR YEAR
ENDED ENDED ENDED
MARCH 31, JUNE 30, JUNE 30,
1999 1998 1997
<S> <C> <C> <C>
REVENUES:
Regis $693,063 $822,964 $735,415
The Barbers 20,984 25,480 20,827
----------------------------------------
Combined total $714,047 $848,444 $756,242
========================================
NET INCOME:
Regis $ 24,321 $ 30,988 $ 7,034
The Barbers 1,472 1,711 1,224
----------------------------------------
Combined total $ 25,793 $ 32,699 $ 8,258
========================================
</TABLE>
HEIDI'S, INC. MERGER:
Effective March 15,1999, the Company consummated the merger with Heidi's,
Inc. (Heidi's), a company based in Detroit, Michigan which operated 24 salons
in shopping malls. Under the terms of the merger agreement, the shareholders
of Heidi's, a privately held company, received 537,937 shares of Regis
Corporation common stock. The transaction has been accounted for as a
pooling-of-interests. Prior period financial statements have been restated to
reflect this merger as if the merged companies had always been combined.
As a result of the merger, the Company recorded a nonrecurring charge of $1.2
million during the quarter ended March 31, 1999. This charge included $0.7
million for professional fees including investment banking, legal, accounting
and miscellaneous transaction costs, $0.5 million for severance and other
costs principally associated with the closure of Heidi's headquarters.
Severance expense of $0.4 million covered the termination of approximately
ten Heidi's employees who had duplicate positions within corporate office
functions. In addition, during the fourth quarter of 1999, the Company
recorded a $0.4 million charge related to impaired salon assets.
Revenues and net income for each of the combining entities prior to the merger
were as follows (dollars in thousands):
<TABLE>
<CAPTION>
SIX MONTHS YEAR YEAR
ENDED ENDED ENDED
DECEMBER 31, JUNE 30, JUNE 30,
1998 1998 1997
<S> <C> <C> <C>
REVENUES:
Regis $ 441,367 $ 798,144 $ 713,219
Heidi's 13,367 24,820 22,196
---------------------------------------
Combined total $ 454,734 $ 822,964 $ 735,415
=======================================
NET INCOME:
Regis $ 16,882 $ 30,488 $ 6,574
Heidi's 443 500 460
---------------------------------------
Combined total $ 17,325 $ 30,988 $ 7,034
=======================================
</TABLE>
26 REGIS CORPORATION 1999
<PAGE>
SUPERCUTS, INC. MERGER:
During October 1996, the Company received shareholder
approval for its merger with Supercuts, Inc. (Supercuts) in a stock-for-stock
transaction, resulting in the issuance of 4.5 million shares of the Company's
common stock. Supercuts was the national operator of approximately 430
company-owned and franchisor of approximately 740 affordable hair care salons
at the acquisition date. As a result of the merger, the Company recorded a
pre-tax merger restructuring and transaction charge of $14.3 million.
The Supercuts transaction has been accounted for as a pooling-of-interests.
Prior period financial statements were restated to reflect this merger as if
the merged companies had always been combined. To effect the restatement,
significant accounting adjustments were necessary to conform the accounting
practices of Supercuts to those of Regis.
OTHER ACQUISITIONS:
During 1999 and 1998, the Company made numerous acquisitions in addition to
its mergers with The Barbers and Heidi's. These acquisitions have been
recorded using the purchase method of accounting. Accordingly, the purchase
prices have been allocated to assets acquired and liabilities assumed based
on their estimated fair values at the date of acquisition. The acquisitions
recorded using the purchase method of accounting, individually and in the
aggregate, are not material to the Company's operations.
Costs in excess of net tangible and identifiable intangible assets acquired
and components of the aggregate purchase prices of the acquisitions were as
follows:
<TABLE>
<CAPTION>
(DOLLARS IN THOUSANDS)
1999 1998
<S> <C> <C>
Costs in excess of net tangible and
identifiable intangible assets
acquired $45,147 $21,743
======================
Components of aggregate purchase price:
Cash $51,017 $24,837
Stock 2,107
Current and noncurrent
payables 2,830 2,180
----------------------
$55,954 $27,017
======================
</TABLE>
4. FINANCING ARRANGEMENTS:
The Company's long-term debt consists of the following:
<TABLE>
<CAPTION>
(DOLLARS IN THOUSANDS)
INTEREST MATURITY
RATE % DATES 1999 1998
<S> <C> <C> <C> <C>
Senior term notes 6.27 - 8.18 2000-2008 $ 109,919 $ 68,000
Revolving credit
facilities 5.96 - 7.38 2000-2001 41,343 28,750
Equipment and
leasehold notes
payable 8.00 - 11.90 2000-2004 11,236 12,113
U.K. term notes 5.23 - 5.40 2001-2003 520 5,827
Other notes payable 5.00 - 11.90 2000-2007 3,968 11,938
---------------------------
166,986 126,628
Less current portion (23,945) (20,091)
---------------------------
Long-term portion $ 143,041 $ 106,537
===========================
</TABLE>
In January 1999, the Company borrowed $15 million under a 6.27 percent senior
term note due June 2003 and $10 million under a 6.83 percent senior term note
due December 2005 to finance recent acquisitions by the Company. In September
1998, the Company borrowed $7.5 million under a 6.55 percent senior term note
due September 2003 to refinance the Company's distribution center revolving
line of credit established in fiscal 1998.
In July 1998, the Company paid down its revolving credit facilities by $14.0
million with the proceeds of a 7.14 percent senior term note with interest due
quarterly, and principal payments of $9.0 million and $5.0 million due in July
2007 and 2008, respectively.
In March 1997, the Company entered into a treasury lock agreement for the
purpose of establishing the effective interest rate on the refinancing of a
$14.0 million senior term note which matured in June 1998. The contract was
entered into to reduce the risk to the Company of future interest rate
fluctuations. The contract had a notional amount of $14.0 million and was
tied to the U.S. government ten-year treasury note rate. Upon settlement of
the agreement in June 1998, the Company incurred a loss of $1.6 million on
the contract. This loss is being amortized as additional interest expense
through 2008. The Company does not enter into financial instruments for
trading or speculative purposes.
In March 1999, the Company retired the majority of its U.K. term notes due
June 2001 with proceeds from its revolving line of credit. To facilitate
this, the Company amended its existing working capital line of credit
agreement to increase the amount available by $10 million to $45 million,
eliminated covenants related to the Company's international operations and
added a multi-
REGIS CORPORATION 1999 27
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
currency provision to the existing revolving credit facility. This facility
bears interest at the prime rate or LIBOR rate plus 1.00 to 1.25 percent
based on the Company's debt to capitalization ratio. The prime rate at June
30, 1999 and 1998 was 7.75 percent and 8.5 percent, respectively. The
revolving credit facility requires a quarterly commitment fee at the rate of
1/4 percent per year on the unused portion of the facility. Letters of credit
totaling $0.9 million were outstanding at June 30, 1999 and 1998, which
reduce the amount available under the revolving credit facility.
The Company also has an additional revolving credit facility which, at the
discretion of the lender, allows for borrowings up to $20.0 million and bears
interest at the prime rate or LIBOR plus 1.0 percent. There were $10 million
of borrowings under this facility as of June 30, 1999, and no borrowings as
of June 30, 1998.
In July 1999, the Company replaced both of its existing revolving credit
facilities with a new senior credit facility which allows for borrowings of
$180 million due in July, 2002, and bears interest at prime rate or LIBOR
rate plus .50 percent to 1.00 percent, based on the Company's debt to
capitalization ratio.
The equipment and leasehold notes payable are primarily comprised of capital
lease obligations totaling $8.9 million at June 30, 1999 and 1998,
respectively. These capital lease obligations are payable in monthly
installments over five years.
The debt agreements contain covenants, including limitations on incurrence of
debt, granting of liens, investments, merger or consolidation, and
transactions with affiliates. In addition, the Company must maintain
specified interest coverage and debt-to-equity ratios.
The fair values of the senior term, equipment and leasehold and subordinated
notes payable, based upon discounted cash flow analyses using the Company's
current incremental borrowing rate, approximate their carrying values at June
30, 1999.
Aggregate maturities of long-term debt at June 30, 1999 are as follows:
<TABLE>
<CAPTION>
FISCAL YEAR (DOLLARS IN THOUSANDS)
<S> <C>
2000 $ 23,945
2001 17,043
2002 34,710
2003 10,545
2004 17,676
Thereafter 63,067
----------
$ 166,986
==========
</TABLE>
5. COMMITMENTS:
OPERATING LEASES:
The Company is committed under long-term operating leases for the rental of
most of its company-owned salon locations. The terms of the leases range from
one to 20 years, with many leases renewable for an additional five to ten
year term at the option of the Company, and certain leases include escalation
provisions. For certain leases, the Company is required to pay additional
rent based on a percent of sales and, in most cases, real estate taxes and
other expenses. Rent expense for the Company's international department store
salons is based primarily on a percent of sales.
The Company also leases the premises in which the majority of its franchisees
operate and has entered into corresponding sublease arrangements with the
franchisees. These leases, generally with terms of approximately five years,
are expected to be renewed on expiration. Future minimum lease payments for
the next five years, which are reimbursable from the franchisees under
sublease arrangements, are approximately $22.6 million annually. All
additional lease costs are passed through to the franchisees.
Total rent expense, net of sublease income from franchisees, includes the
following:
<TABLE>
<CAPTION>
(DOLLARS IN THOUSANDS)
1999 1998 1997
<S> <C> <C> <C>
Minimum rent $ 79,499 $ 73,265 $ 64,580
Percentage rent based
on sales 22,513 16,912 16,799
Real estate taxes and
other expenses 25,864 21,581 17,658
----------------------------------------
$ 127,876 $ 111,758 $ 99,037
========================================
</TABLE>
FUTURE MINIMUM LEASE PAYMENTS:
As of June 30, 1999, future minimum lease payments (excluding percentage rents
based on sales and sublease rental obligations which are passed through to the
franchisees) due under existing noncancellable operating leases with remaining
terms of greater than one year are as follows:
<TABLE>
<CAPTION>
FISCAL YEAR (DOLLARS IN THOUSANDS)
<S> <C>
2000 $ 92,084
2001 79,165
2002 66,939
2003 55,342
2004 43,064
Thereafter 98,837
---------
Total minimum lease payments $ 435,431
=========
</TABLE>
28 REGIS CORPORATION 1999
<PAGE>
SALON DEVELOPMENT PROGRAM:
As a part of its salon development program, the Company continues to
negotiate and enter into leases and commitments for the acquisition of
equipment and leasehold improvements related to future salon locations.
6. INCOME TAXES:
The provision for income taxes consists of:
<TABLE>
<CAPTION>
(DOLLARS IN THOUSANDS)
1999 1998 1997
<S> <C> <C> <C>
Current:
Federal $ 20,661 $ 12,401 $ 11,070
State 3,190 2,019 1,721
International (399) 166 292
Deferred:
United States (393) 7,039 1,083
International (672) 104 (24)
----------------------------------
$ 22,387 $ 21,729 $ 14,142
==================================
</TABLE>
The components of the net deferred tax assets are as follows:
<TABLE>
<CAPTION>
(DOLLARS IN THOUSANDS)
1999 1998
<S> <C> <C>
Net current deferred
tax asset:
Insurance $ 2,587 $ 2,234
Payroll and payroll 2,624 2,200
related costs
Nonrecurring items 2,581 2,065
Other, net 804 (70)
-------------------------
$ 8,596 $ 6,429
=========================
Net noncurrent deferred
tax asset:
Depreciation and
amortization $ (3,496) $ (1,235)
Deferred rent 2,128 1,985
Payroll and payroll
related costs 2,444 1,265
Other, net (268) (105)
-------------------------
$ 808 $ 1,910
=========================
</TABLE>
<TABLE>
<CAPTION>
(DOLLARS IN THOUSANDS)
1999 1998 1997
<S> <C> <C> <C>
Income (loss) before
income taxes:
United States $ 58,567 $ 54,437 $ 23,034
International (5,834) (9) (634)
-------------------------------------------
$ 52,733 $ 54,428 $ 22,400
===========================================
</TABLE>
The provision for income taxes differs from the amount of income tax
determined by applying the applicable U.S. statutory rate to earnings before
income taxes, as a result of the following:
<TABLE>
<CAPTION>
1999 1998 1997
<S> <C> <C> <C>
U.S. statutory rate 35.0% 35.0% 35.0%
State income taxes,
net of federal
income tax benefit 3.4 3.6 5.0
Nondeductible
merger and
transaction costs 2.5 9.9
Change in estimate 6.7
Other, principally
non-deductible
goodwill 1.6 1.3 6.5
-------------------------------
42.5% 39.9% 63.1%
===============================
</TABLE>
During 1997, the Company recorded a $1.5 million change in estimate associated
with income tax matters related to years prior to 1996 resulting from the
completion of an Internal Revenue Service examination.
7. EMPLOYEE BENEFIT PLANS:
EMPLOYEE STOCK OWNERSHIP PLAN:
The Company has a qualified employee stock ownership plan (ESOP) covering
substantially all field supervisors, warehouse and corporate office employees.
Contributions to the ESOP are at the discretion of the Company.
EXECUTIVE STOCK AWARD PLAN:
The Company has a nonqualified executive stock award plan (ESAP) covering
those employees not eligible to participate under the qualified ESOP.
Contributions to the ESAP are at the discretion of the Company.
STOCK PURCHASE PLAN:
The Company has an employee stock purchase plan (SPP) available to
substantially all employees. Under terms of the plan, eligible employees may
purchase the Company's common stock through payroll deductions. The Company
contributes an amount equal to 15 percent of the purchase price of the stock
to be purchased on the open market, not to exceed an aggregate contribution
of $2.2 million.
REGIS CORPORATION 1999 29
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Company contributions to the aforementioned plans, which are charged to
earnings in the period contributed, included the following:
<TABLE>
<CAPTION>
(DOLLARS IN THOUSANDS)
1999 1998 1997
<S> <C> <C> <C>
ESOP $1,303 $1,146 $ 662
ESAP 248 301 257
SPP 341 274 223
</TABLE>
REGIS 401(K)PLAN:
Effective July 1, 1999, the Company established a qualified 401(k) defined
contribution plan covering substantially all field supervisors, warehouse and
corporate office employees.
STOCK OPTIONS:
The Company's Stock Option Plan (the Plan), as amended, provides for granting
both incentive stock options and nonqualified stock options. A total of
3,300,000 shares of common stock may be granted under the Plan to employees
of the Company for a term not to exceed 10 years from the date of grant.
Options granted to employees generally vest over a five year period. Options
may also be granted under this Plan to the Company's outside directors for a
term not to exceed five years from the vesting date. Options granted to
outside directors vest over a four year period.
The Plan contains restrictions on transferability, time of exercise, exercise
price and on disposition of any shares acquired through exercise of the
options. Incentive stock options are granted at not less than fair market
value on the date of grant. The Board of Directors determines the Plan
participants and establishes the terms and conditions of each option.
In May 1999, in connection with The Barbers merger (Note 3) and effective
termination of The Barbers stock option plans, outstanding stock options and
warrants of The Barbers were converted to options to purchase approximately
370,000 shares of Regis common stock on the basis of the exchange ratio
established to effect the merger.
In October 1996, in connection with the Supercuts merger (Note 3) and
effective termination of the Supercuts stock option plans, outstanding
Supercuts stock options were converted to options to purchase approximately
400,000 shares of Regis common stock on the basis of the exchange ratio
established to effect the merger.
Common shares available for grant as of June 30, 1999, 1998 and 1997, were
611,095, 579,820 and 895,275, respectively.
Stock options outstanding and weighted average exercise prices are as follows:
<TABLE>
<CAPTION>
OPTIONS OUTSTANDING
WEIGHTED
AVERAGE
EXERCISE
SHARES PRICE
<S> <C> <C>
Balance, June 30, 1996 2,817,452 $ 8.18
Granted 485,250 13.47
Cancelled (150,924) 14.45
Exercised (412,100) 8.71
------------------------
Balance, June 30, 1997 2,739,678 $ 8.69
Granted 538,505 17.24
Cancelled (272,163) 13.41
Exercised (191,748) 7.20
------------------------
Balance, June 30, 1998 2,814,272 $ 9.97
Granted 28,500 $ 19.53
Cancelled (37,275) 14.30
Exercised (309,929) 11.29
------------------------
Balance, June 30, 1999 2,495,568 $ 9.88
========================
</TABLE>
At June 30, 1999, the weighted average exercise prices and remaining
contractual lives of stock options are as follows:
<TABLE>
<CAPTION>
RANGE OF $2.10- $5.45- $9.33- $16.67-
EXERCISE PRICES $5.00 $8.25 $15.50 $24.25 TOTAL
<S> <C> <C> <C> <C> <C>
Total options
outstanding 719,825 646,613 559,050 570,080 2,495,568
Weighted average
exercise price $ 4.20 $ 6.52 $ 13.21 $ 17.64 $ 9.88
Weighted average
remaining
contractual life
in years 3.97 5.13 7.15 8.49 6.01
Options exercisable 539,822 598,801 282,077 142,050 1,562,750
Weighted average
price of
exercisable
options $ 3.93 $ 6.39 $ 12.75 $ 17.95 $ 7.74
</TABLE>
30 REGIS CORPORATION 1999
<PAGE>
The Company measures compensation cost for its incentive stock plans using the
intrinsic value-based method of accounting. Had the Company used the
fair-value-based method of accounting for its stock option and incentive plans
beginning in 1996 and charged compensation cost against income, over the vesting
period based on the fair value of options at the date of grant net income and
net income per share would have been as follows:
<TABLE>
<CAPTION>
(DOLLARS IN THOUSANDS,
EXCEPT PER SHARE AMOUNTS)
1999 1998 1997
<S> <C> <C> <C>
Net income:
As reported $ 30,346 $ 32,699 $ 8,258
Pro forma 29,213 32,046 7,609
Net income per diluted share:
As reported $ .76 $ .84 $ .22
Pro forma $ .74 $ .83 $ .20
</TABLE>
The pro forma information above only includes stock options granted in 1999,
1998 and 1997. Compensation expense under the fair-value-based method of
accounting will increase over the next few years as additional stock option
grants are considered.
The weighted-average fair value per option granted during 1999, 1998 and 1997
was $12.23, $7.33 and $5.90, respectively, calculated by using the fair value
of each option grant on the date of grant. The fair value of options was
calculated utilizing the Black-Scholes option-pricing model and the following
key assumptions:
<TABLE>
<CAPTION>
1999 1998 1997
<S> <C> <C> <C>
Risk-free interest rate 5.60 % 5.56 % 6.41 %
Expected life in years 6.0 6.0 6.5
Expected volatility 37.35 % 34.16 % 35.50 %
Expected dividend yield .42 % .38 % .39 %
</TABLE>
OTHER:
The Company has established unfunded deferred compensation plans which cover
certain management and executive personnel. The Company maintains life
insurance policies on the plans' participants. The amounts charged to
earnings for these plans were $1.9 million, $0.6 million and $0.4 million in
1999, 1998 and 1997, respectively.
The Company has a survivor benefit plan for the Chairman of the Board's
spouse, payable upon his death, at a rate of $300,000 annually, adjusted for
inflation, for the remaining life of his spouse. The Company has funded its
future obligations under this plan through life insurance policies on the
Chairman of the Board (the Chairman).
The Company has entered into an agreement with the Chairman providing that
the Chairman will continue to render services to the Company until at least
May 2007, and for such further period as may be agreed upon mutually. The
Company has agreed to pay the Chairman an annual amount of $0.6 million,
adjusted for inflation, for the remainder of his life. The Chairman has
agreed that during the period in which payments to him are made, as provided
in the agreement, he will not engage in any business competitive with the
business conducted by the Company. Compensation associated with this
agreement is charged to expense as services are provided.
Effective July 1, 1998, the Company established a survivor benefit plan for
the Chief Executive Officer's spouse, payable upon his death, at a rate of
one half of his deferred compensation benefit, adjusted for inflation, for
the remaining life of his spouse. The Company has funded its future
obligations under this plan through life insurance policies on the Chief
Executive Officer.
8. SHAREHOLDERS' EQUITY:
In addition to the shareholder equity activity described in Note 7, the
following activity has taken place:
STOCK SPLIT
In February 1999, the board of directors approved a three-for-two stock split of
its common stock in the form of a 50 percent stock dividend distributed on March
1, 1999 to shareholders of record on February 15, 1999. All share and per share
amounts have been restated to reflect the stock split.
AUTHORIZED SHARES AND DESIGNATION OF PREFERRED CLASS:
The Company has 50 million shares of capital stock authorized, par value $.05,
of which all outstanding shares, and shares available under the Stock Option
Plan, have been designated as common.
In addition, 250,000 shares of authorized capital stock have been designated as
Series A Junior Participating Preferred Stock (preferred stock). None of the
preferred stock has been issued.
REGIS CORPORATION 1999 31
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
SHAREHOLDERS' RIGHTS PLAN:
The Company has a shareholders' rights plan pursuant to which one preferred
share purchase right is held by shareholders for each outstanding share of
common stock. The rights become exercisable only following the acquisition by
a person or group, without the prior consent of the Board of Directors, of 20
percent or more of the Company's voting stock, or following the announcement
of a tender offer or exchange offer to acquire an interest of 20 percent or
more. If the rights become exercisable, they entitle all holders, except the
take-over bidder, to purchase one one-hundredth of a share of preferred stock
at an exercise price of $120, subject to adjustment, or in lieu of purchasing
the preferred stock, to purchase for the same exercise price common stock of
the Company (or in certain cases common stock of an acquiring company) having
a market value of twice the exercise price of a right.
9. SEGMENT INFORMATION:
Commencing with its 1999 fiscal year end reporting, the Company adopted SFAS
No. 131, "Disclosures about Segments of an Enterprise and Related
Information". This new standard requires that public companies report
financial and descriptive information about their reportable operating
segments, generally based on the way that management organized the segments
within the enterprise for making operating decisions and assessing
performance.
Each of the Company's operating segments have generally similar product and
services. The Company is organized to manage its operations based on
geographical location. The Company's operating segments have been aggregated
into two reportable segments: domestic salons and international salons. The
Company operates or franchises 4,650 domestic salons located within
high-profile regional malls and strip shopping centers under several
different concepts including Regis Salons, MasterCuts, Trade Secret,
SmartStyle, Supercuts and Cost Cutters brand names. The Company's
International segment includes 304 salons operating in leading department
stores, mass merchants and high street locations.
The accounting policies of the reportable segments are the same as those
described in Note 1 to the Consolidated Financial Statements. The Company
evaluates the performance of its operating segments based on direct salon
contribution, before supervision and corporate overhead expenses.
Intersegment sales and transfers are not significant.
Summarized financial information concerning the Company's reportable segments
is shown in the following table.
<TABLE>
<CAPTION>
(DOLLARS IN THOUSANDS)
1999 1998 1997
<S> <C> <C> <C>
Company-owned revenues:
Domestic $826,169 $696,303 $613,358
International 100,971 106,176 99,348
----------------------------------------
Total $927,140 $802,479 $712,706
========================================
Salon contribution:
Domestic $151,643 $124,137 $101,711
International 12,536 12,879 10,824
----------------------------------------
Total $164,179 $137,016 $112,535
========================================
Salon depreciation
and amortization:
Domestic $ 27,696 $ 23,108 $ 20,879
International 3,328 3,253 3,148
----------------------------------------
Total $ 31,024 $ 26,361 $ 24,027
========================================
Total assets:
Domestic $372,956 $274,192 $226,703
International 19,250 26,408 30,671
Corporate 101,418 102,314 93,219
----------------------------------------
Total $493,624 $402,914 $350,593
========================================
Long-lived assets:
Domestic $307,439 $239,423 $198,622
International 16,236 21,333 23,957
Corporate 43,578 39,393 20,359
----------------------------------------
Total $367,253 $300,149 $242,938
========================================
Capital expenditures:
Domestic $ 50,445 $ 38,180 $ 32,063
International 3,402 2,706 3,211
Corporate 12,478 16,819 5,557
----------------------------------------
Total $ 66,325 $ 57,705 $ 40,831
========================================
Purchases of salon
assets:
Domestic $ 50,866 $ 24,837 $ 9,941
International 151 429
----------------------------------------
Total $ 51,017 $ 24,837 $ 10,370
========================================
</TABLE>
In addition to the company-owned revenues detailed in the table above, the
Company also recorded franchise income of $47.7 million, $46.0 million and
$43.5 million, respectively, as part of consolidated revenues. The expenses
associated with the Company's franchising activities are included in selling,
general & administrative and other operating expenses within the Consolidated
Statement of Operations, as described in Note 1 to the consolidated financial
statements.
32 REGIS CORPORATION 1999
<PAGE>
Corporate assets detailed above are primarily comprised of fixed assets
associated with the Company's headquarters and distribution centers, corporate
cash, inventories located at corporate distribution centers, deferred income
taxes, franchise receivables, and other corporate assets.
10. NONRECURRING ITEMS:
Nonrecurring items included in operating income consist of gains or losses on
assets and business dispositions and other items of a nonrecurring nature. The
following table summarizes nonrecurring items recorded by the Company:
<TABLE>
<CAPTION>
(DOLLARS IN THOUSANDS)
1999 1998 1997
<S> <C> <C> <C>
Restructuring charge--
International $ 5,616
Restructuring charge--
Mergers (Note 3) 4,356 $ 1,500
Merger transaction costs
(Note 3) 2,066 14,322
Year 2000 remediation 4,095
Loss on divestiture of
Anasazi business
and assets $ 1,979
Resolution of Supercuts
officer litigation 2,909
--------------------------------
$16,133 $ 1,979 $18,731
================================
</TABLE>
During the fourth quarter of fiscal 1999, the Company's Board of Directors
approved a restructuring plan associated with its International operations
headquartered in the United Kingdom. This plan includes relocating the
headquarters out of London to Coventry, England with the majority of the
accounting and information technology functions transferring to the Company's
corporate headquarters in Minneapolis, Minnesota and divestiture of certain
markets and salons which have been generating negative cash flows.
The restructuring charge related to the plan described above was $5.6
million. Of the total charge, $1.0 million related to severance payments due
to the elimination of duplicative accounting and information technology
functions, $0.2 million for legal, professional and other miscellaneous fees,
$0.3 million for duplicate rent related to the relocation of operations to
Coventry, and $0.3 million related to the write-off of assets, primarily at
the prior London headquarters, and $3.8 million related to salon closing and
dispositions.
International salons identified for closure or disposition in the
restructuring charge described above, contributed $8.0 million in annual
revenues with associated after-tax annualized operating losses of
approximately $0.9 million.
During 1999, the Company recorded $4.1 million of expense associated with Year
2000 remediation.
Anasazi Exclusive Salons, LLC, a salon products manufacturing company, was sold
to Curtis Acquisition LLC, which is controlled by two members of the Company's
Board of Directors, one of whom is the Chairman.
In 1997, the Company recorded an additional $2.9 million charge to earnings to
revise restructuring charge estimates made in 1996 related to resolution of
Supercuts officer litigation. The Company also recorded a $1.5 million charge
associated with identified Regis salon closures during 1997.
Approximately $4.4 million, $2.0 million and $0.3 million of the nonrecurring
items in 1999, 1998, and 1997, respectively, are non-cash in nature.
REGIS CORPORATION 1999 33
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
To the Shareholders and Directors of
Regis Corporation:
In our opinion, the accompanying consolidated balance sheet and the related
consolidated statements of operations, changes in shareholders' equity and
comprehensive income and cash flows present fairly, in all material respects,
the consolidated financial position of Regis Corporation at June 30, 1999 and
1998, and the consolidated results of its operations and its cash flows for
each of the three years in the period ended June 30, 1999, in conformity with
generally accepted accounting principles. These financial statements are the
responsibility of the Company's management; our responsibility is to express
an opinion on these financial statements based on our audits. We conducted
our audits of these statements in accordance with generally accepted auditing
standards which require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements, assessing
the accounting principles used and significant estimates made by management,
and evaluating the overall financial statement presentation. We believe that
our audits provide a reasonable basis for the opinion expressed above.
PricewaterhouseCoopers LLP
Minneapolis, Minnesota
August 24, 1999
- -------------------------------------------------------------------------------
QUARTERLY FINANCIAL DATA
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
QUARTER ENDED
---------------------------------------------------------------
YEAR
SEPTEMBER 30 DECEMBER 31 MARCH 31 JUNE 30 ENDED
<S> <C> <C> <C> <C> <C>
1999
Revenues $227,699 $240,913 $245,435 $260,825 $974,872
Operating income 16,531 18,276 15,457 12,538 62,802
Net income 8,664 9,652 7,477 4,553 30,346
Net income per
diluted share (a) .22 .24 .19 .11 .76
Dividends declared per share .02 .02 .03 .03 .10
1998
Revenues $200,810 $211,873 $209,548 $226,213 $848,444
Operating income 13,223 16,531 14,848 19,214 63,816
Net income 6,493 8,173 7,334 10,699 32,699
Net income per
diluted share (b) .17 .21 .19 .27 .84
Dividends declared per share .013 .013 .013 .020 .060
</TABLE>
(a) For the quarters ended March 31 and June 30, 1999 and the full year 1999,
exclusive of nonrecurring items (Note 10), net income per diluted share
would have been $.23 and $.32 and $1.05, respectively.
(b) For quarter ended September 30, 1997 and the full year 1998, exclusive of
nonrecurring items (Note 10), net income per diluted share would have been
$.20 and $.87, respectively.
34 REGIS CORPORATION 1999
<PAGE>
STOCK DATA
Regis common stock is listed and traded on the Nasdaq National Market under the
symbol "RGIS".
The accompanying table sets forth the high and low closing bid quotations as
reported by Nasdaq for each quarter during the previous two fiscal years. The
quotations reflect inter-dealer prices, without retail mark-up, mark-down or
commission, and may not necessarily represent actual transactions.
As of June 30, 1999, Regis shares were owned by approximately 13,200
shareholders. The common stock price was $19.875 per share on August 13, 1999.
<TABLE>
<CAPTION>
1999 1998
HIGH LOW HIGH LOW
<S> <C> <C> <C> <C>
1st quarter $ 21.00 $ 15.17 $ 17.00 $ 15.29
2nd quarter 26.67 17.33 18.00 15.31
3rd quarter 28.44 23.17 20.00 16.67
4th quarter 26.88 19.19 20.00 17.33
</TABLE>
REGIS CORPORATION 1999 35
<PAGE>
EXHIBIT 23
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statements on Form S-3 (Nos. 333-28511, 333-49165, and 333-78793), and Form
S-8 (Nos. 33-44867 and 33-89882) of Regis Corporation of our report dated
August 24, 1999 relating to the consolidated financial statements, which
appears in the Annual Report to Shareholders, which is incorporated in this
Annual Report on Form 10-K. We also consent to the incorporation by
reference of our report dated August 24, 1999 relating to the financial
statement schedule, which appears in this Form 10-K.
/s/ PricewaterhouseCoopers LLP
PRICEWATERHOUSECOOPERS LLP
Minneapolis, Minnesota
September 17, 1999
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE REGIS
CORPORATION CONSOLIDATED FINANCIAL STATEMENTS AS OF AND FOR THE YEARS ENDED JUNE
30, 1999, 1998 AND 1997 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<RESTATED>
<MULTIPLIER> 1,000
<S> <C> <C> <C>
<PERIOD-TYPE> YEAR YEAR YEAR
<FISCAL-YEAR-END> JUN-30-1999 JUN-30-1998 JUN-30-1997
<PERIOD-START> JUL-01-1998 JUL-01-1997 JUL-01-1996
<PERIOD-END> JUN-30-1999 JUN-30-1998 JUN-30-1997
<CASH> 7,351 7,678 11,005
<SECURITIES> 0 0 0
<RECEIVABLES> 16,752 15,092 16,052
<ALLOWANCES> 246 678 650
<INVENTORY> 70,056 56,030 44,241
<CURRENT-ASSETS> 113,079 91,369 84,617
<PP&E> 376,765 320,712 263,179
<DEPRECIATION> 163,466 139,605 119,222
<TOTAL-ASSETS> 493,624 402,914 349,892
<CURRENT-LIABILITIES> 100,009 89,080 96,758
<BONDS> 0 0 0
0 0 0
0 0 0
<COMMON> 1,932 1,275 1,290
<OTHER-SE> 234,265 197,083 154,589
<TOTAL-LIABILITY-AND-EQUITY> 493,624 402,914 349,892
<SALES> 263,714 225,982 191,716
<TOTAL-REVENUES> 974,872 848,444 756,242
<CGS> 142,002 123,323 105,242
<TOTAL-COSTS> 912,070 784,628 724,687
<OTHER-EXPENSES> 38,773<F1> 21,290<F2> 35,553<F3>
<LOSS-PROVISION> 0 0 0
<INTEREST-EXPENSE> 11,576 10,492 10,674
<INCOME-PRETAX> 52,733 54,428 22,400
<INCOME-TAX> 22,387 21,729 14,142
<INCOME-CONTINUING> 0 0 0
<DISCONTINUED> 0 0 0
<EXTRAORDINARY> 0 0 0
<CHANGES> 0 0 0
<NET-INCOME> 30,346 32,699 8,258
<EPS-BASIC> .79 .87 .23
<EPS-DILUTED> .76<F4> .84<F5> .22<F6>
<FN>
<F1>Includes nonrecurring year 2000 remediation costs of $4,095, restructuring
charges for international of $5,616, restructuring charges for mergers of $4,356
and merger transaction costs of $2,066.
<F2>Includes a charge of $1,979 associated with the divestiture of Anasazi
Exclusive Salon Products Inc.
<F3>Includes a merger transaction and restructuring charge of $18,731 associated
with the merger of Supercuts, Inc.
<F4>Excluding nonrecurring items, fully diluted EPS would have been $1.05
<F5>Excluding nonrecurring items, fully diluted EPS would have been $.87
<F6>Excluding nonrecurring items, fully diluted EPS would have been $.61
</FN>
</TABLE>
