<PAGE> 1
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Schedule 13D
Under the Securities Exchange Act of 1934
(Amendment No. 10)
BIG O TIRES, INC.
(Name of Issuer)
Common Stock, par value $.10 per share
(Title of Class of Securities)
089324 20 6
(CUSIP Number)
Richard M. Russo, Esq.
GIBSON, DUNN & CRUTCHER
1801 California Street, Suite 4200
Denver, Colorado 80202
(303) 298-5700
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
August 16, 1995
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Statement because of Rule
13d-1(b)(3) or (4), check the following box [].
Check the following box if a fee is being paid with the statement [].
SEC 1746 (12-91)
<PAGE> 2
CUSIP No. 089324 20 6 Schedule 13D
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
STEVEN P. CLOWARD
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)[ ]
(b)[x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
PF AND OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES
NUMBER OF 7 SOLE VOTING POWER
SHARES 43,990.655
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 25,110
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 2,808
PERSON 10 SHARED DISPOSITIVE POWER
WITH 57,730.655
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
98,339.655
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* []
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
2.9467%
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE> 3
CUSIP No. 089324 20 6 Schedule 13D
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
JOHN BRADLEY ADAMS
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)[ ]
(b)[x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
PF AND OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES
NUMBER OF 7 SOLE VOTING POWER
SHARES 19,877.5024
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 1,311
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 1,824
PERSON 10 SHARED DISPOSITIVE POWER
WITH 13,636.5024
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
37,164.5024
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* []
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
1.1181%
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE> 4
CUSIP No. 089324 20 6 Schedule 13D
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
RON LAUTZENHEISER
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)[ ]
(b)[x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
PF AND OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES
NUMBER OF 7 SOLE VOTING POWER
SHARES 4,200
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 6,566.3312
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 16,744.00
PERSON 10 SHARED DISPOSITIVE POWER
WITH 6,566.3312
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
23,310.33
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* []
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
0.70%
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE> 5
CUSIP No. 089324 20 6 Schedule 13D
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DENNIS JAMES FRYER
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)[ ]
(b)[x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
PF AND OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES
NUMBER OF 7 SOLE VOTING POWER
SHARES 6,367.9306
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 0
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 15
PERSON 10 SHARED DISPOSITIVE POWER
WITH 4,636.9306
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,367.9306
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* []
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
.1925%
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE> 6
CUSIP No. 089324 20 6 Schedule 13D
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
ALLEN ERIC JONES
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)[ ]
(b)[x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
PF AND OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES
NUMBER OF 7 SOLE VOTING POWER
SHARES 5,783.2808
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 0
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
PERSON 10 SHARED DISPOSITIVE POWER
WITH 4,067.2808
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11,099.2808
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* []
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
.3350%
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE> 7
CUSIP No. 089324 20 6 Schedule 13D
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
KELLEY AMANDA O'REILLY
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)[ ]
(b)[x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
PF AND OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES
NUMBER OF 7 SOLE VOTING POWER
SHARES 3,772.2658
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 0
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
PERSON 10 SHARED DISPOSITIVE POWER
WITH 682.9063
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,772.2658
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* []
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
.1140%
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE> 8
CUSIP No. 089324 20 6 Schedule 13D
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
GREGORY L. ROQUET
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)[ ]
(b)[x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
PF AND OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES
NUMBER OF 7 SOLE VOTING POWER
SHARES 4,853.1304
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 0
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
PERSON 10 SHARED DISPOSITIVE POWER
WITH 1,767.6782
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
9,537.1304
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* []
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
.2879%
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE> 9
CUSIP No. 089324 20 6 Schedule 13D
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
THOMAS LEE STAKER
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)[ ]
(b)[x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
PF AND OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES
NUMBER OF 7 SOLE VOTING POWER
SHARES 7,471.571
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 0
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 300
PERSON 10 SHARED DISPOSITIVE POWER
WITH 0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11,152.571
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* []
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
.3368%
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE> 10
CUSIP No. 089324 20 6 Schedule 13D
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
PHILIP JOSEPH TEIGEN
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)[ ]
(b)[x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
PF AND OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES
NUMBER OF 7 SOLE VOTING POWER
SHARES 4,519.843
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 0
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
PERSON 10 SHARED DISPOSITIVE POWER
WITH 1,154.3372
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,193.843
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* []
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
.2173%
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE> 11
CUSIP No. 089324 20 6 Schedule 13D
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
BRUCE HARRELSON WARE
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)[ ]
(b)[x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
PF AND OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES
NUMBER OF 7 SOLE VOTING POWER
SHARES 7,081.0814
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 0
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 400
PERSON 10 SHARED DISPOSITIVE POWER
WITH 4,917.0814
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
12,067.0814
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* []
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
.3642%
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE> 12
CUSIP No. 089324 20 6 Schedule 13D
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
BRADLEY RUSSELL FINDLAY
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)[ ]
(b)[x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
PF AND OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES
NUMBER OF 7 SOLE VOTING POWER
SHARES 237
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 0
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
PERSON 10 SHARED DISPOSITIVE POWER
WITH 0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
426
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* []
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
.01288%
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE> 13
CUSIP No. 089324 20 6 Schedule 13D
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
BIG O TIRE DEALERS OF AMERICA
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)[ ]
(b)[x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
CALIFORNIA
NUMBER OF 7 SOLE VOTING POWER
SHARES 0
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 0
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
PERSON 10 SHARED DISPOSITIVE POWER
WITH 0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* []
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
0
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE> 14
This Amendment No. 10 to the Schedule 13D filed on December 12, 1994 (the
"Schedule 13D") relates to the shares of common stock, $.10 par value per
share ("Shares"), of Big O Tires, Inc., a Nevada corporation ("Big O"), and is
being filed by the following parties (collectively, the "Reporting Persons"):
Big O Tire Dealers of America
Members of Management
John B. Adams
Steven P. Cloward
Dennis J. Fryer
Allen E. Jones
Kelly A. O'Reilly
Gregory L. Roquet
Thomas L. Staker
Philip J. Teigen
Bruce H. Ware
Brad Findlay
Ron Lautzenheiser
The principal executive offices of Big O are located at 11755 East Peakview
Avenue, Englewood, Colorado 80111.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
As previously reported, the Reporting Persons and the directors and officers
of BOTA have acquired beneficial ownership of the BIG O Shares they currently
hold through the purchase of shares in the open market with their personal
assets and through the Big O Tires, Inc. Employee Stock Ownership Plan
("ESOP"), the Big O Tires, Inc. Long Term Incentive Plan, and the Big O Tires,
Inc. Director and Employee Stock Option Plan.
The aggregate estimated amount of funds required by the Reporting Persons to
purchase all of the outstanding Shares pursuant to the Agreement and Plan of
Merger (the "Agreement") described in Item 4 of Amendment No. 8 to the
Schedule 13D and to replace certain borrowing arrangements now in place at
Big O is approximately $77 million. It is estimated that the great majority
of these funds will be borrowed. On July 27, 1995, BOTI Acquisition Corp., a
company owned by certain of the Reporting Persons, executed a commitment
letter with First National Bank of Chicago ("First Chicago") relating to a
loan in the aggregate principal amount of $40,000,000. A copy of the
commitment letter is attached hereto as Exhibit A and incorporated herein by
this reference. The commitment is contingent upon obtaining equity and debt
financing, completion of First Chicago's due diligence, the consummation of
the Agreement on terms satisfactory to First Chicago and the satisfaction of
other conditions. Pursuant to the terms of the Agreement, on August 14, 1995,
the Reporting Persons provided Big O with information regarding the status of
their efforts to obtain financing. On August 16, 1995, Big O announced that
it had reviewed such information and found the financing acceptable.
ITEM 7. EXHIBITS
Exhibit 99.A: Commitment letter with First National Bank of Chicago dated July
27, 1995.
<PAGE> 15
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and
correct.
Date: August 22, 1995 /s/ Steven P. Cloward
Steven P. Cloward
Date: August 22, 1995 /s/ John B. Adams
John B. Adams
Date: August 22, 1995 /s/ Ron Lautzenheiser
Ron Lautzenheiser
Date: August 22, 1995 /s/ Dennis J. Fryer
Dennis J. Fryer
Date: August 22, 1995 /s/ Allen E. Jones
Allen E. Jones
Date: August 22, 1995 /s/ Kelley A. O'Reilly
Kelley A. O'Reilly
Date: August 22, 1995 /s/ Gregory L. Roquet
Gregory L. Roquet
Date: August 22, 1995 /s/ Thomas L. Staker
Thomas L. Staker
Date: August 22, 1995 /s/ Philip J. Teigen
Philip J. Teigen
Date: August 22, 1995 /s/ Bruce H. Ware
Bruce H. Ware
Date: August 22, 1995 /s/ Brad Findlay
Brad Findlay
Date: August 22, 1995 /s/ Wes Stephenson
Wes Stephenson,
President of BOTA
<PAGE> 16
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<S> <C>
99.A Commitment letter with First National Bank of Chicago dated July
27, 1995.
</TABLE>
<PAGE> 1
The First National Bank of Chicago
Mail Suite
One First National Plaza
Chicago, Illinois 60670
Telephone: (312) 732-4000
July 24, 1995
Mr. Steven P. Cloward
c/o Big O Tires, Inc.
11755 East Peakview Avenue
Englewood, Colorado 80111
Gentlemen/Ladies:
The First National Bank of Chicago ("First Chicago") understands that
you, certain other members of management of Big O Tires, Inc. (the "Company")
and the Company's Employee Stock Ownership Plan (collectively, "Borrower's
Shareholders") have created an acquisition corporation named BOTI Acquisition
Corp. ("Borrower"), and Borrower will seek to enter a merger agreement
("Merger Agreement") with Company whereby Borrower will merge (the "Merger")
into Company and Company will be the surviving corporation (the
"Acquisition"). You have requested senior facilities (the "Facilities") in
the aggregate principal amount of $40 million (the "Aggregate Commitment").
First Chicago is pleased to confirm its commitment to Borrower for the entire
amount of the Facilities on the terms and conditions set forth in the term
sheet attached hereto ("Term Sheet") and subject to the conditions set forth
in this Commitment Letter. First Chicago intends, and reserves the right, to
syndicate the Facilities to a group of lenders (collectively, including First
Chicago, the "Lenders") selected by it.
First Chicago understands that Borrower will be capitalized with:
(i) the Facilities; (ii) an equity contribution, effected in a manner
acceptable to First Chicago, of substantially all of the shares of common
stock of Company which Borrower's Shareholders own, and $10 million cash
(collectively, "Equity"); (iii) at least $10 million of new privately placed
senior debt ("Privately Placed Senior Debt"); (iv) $10 million of new senior
subordinated debt described below ("New Subordinated Debt"); and, after the
Acquisition, (v) Company's approximately $3.2 million of existing subordinated
debt ("Existing Subordinated Debt") and Company's approximately $1.8 million
of other existing debt.
The terms and conditions of the Merger Agreement (including
without limitation the total consideration to be paid and the form thereof)
shall be acceptable to the Lenders. The definitive structure of the
Acquisition has not been determined and must be satisfactory to the Lenders.
The terms and conditions of the Privately Placed Senior Debt, including
without limitation, those pertaining to default, amortization, interest rate,
covenants and defaults, and the entity or entities which issue the debt, shall
be in form and substance acceptable to the Lenders. The terms and conditions
of the New and Existing Subordinated Debt (collectively, "Subordinated Debt"),
including without limitation, those pertaining to subordination, default,
standstill, sinking fund, amortization, interest rate, covenants and defaults,
the entity or entities which issue or are otherwise liable for the
Subordinated Debt, shall be in form and substance acceptable to the Lenders.
Accordingly, certain terms of the Existing Subordinated Debt shall be amended.
Without limiting the foregoing, all covenants and defaults contained in the
Subordinated Debt indenture shall be less restrictive than those contained in
the Loan Documents; the Subordinated Debt shall be unsecured; there shall be
no mandatory prepayments or redemptions of any type; none of the New
Subordinated Debt shall mature until at least one year after all of the Senior
<PAGE> 2
Facilities have matured (but the Existing Subordinated Debt held by
Kelly-Springfield may mature according to the amortization schedule described
in the Borrower's business plan, dated June 26, 1995); and there shall be no
substantial limitation on the sale of assets.
First Chicago has reviewed certain historical and pro forma financial
statements of Company, received in February, 1995, and entitled "Confidential
Memorandum, Big O Tires, Inc. $50,000,000 Acquisition Financing", delivered by
KPMG Peat Marwick LLP, and certain financial information First Chicago has
about Company from First Chicago's existing credit relationship with the
Company. First Chicago's commitment is subject to its continuing satisfaction
therewith and its satisfaction of such other due diligence investigation as
may be necessary for First Chicago's credit evaluation. In the event that
First Chicago's continuing review of the Borrower and its subsidiaries
discloses information relating to conditions or events not previously
disclosed to First Chicago or relating to new information or additional
developments concerning conditions or events previously disclosed which may
have a material adverse effect on the condition, assets, properties, business
or prospects of the Borrower and its subsidiaries, or any such conditions set
forth in such definitive documentation are not satisfied, First Chicago may,
in its sole discretion, suggest alternative financing amounts or structures
that ensure adequate protection for the Lenders or decline to participate in
the proposed financing.
Borrower agrees to (i) reimburse First Chicago for all out-of-pocket
expenses (including the fees of outside counsel and time charges for inside
counsel) incurred in connection with this Commitment Letter, the transactions
contemplated thereby and First Chicago's on-going due diligence therewith,
including without limitation travel expenses and costs incurred in connection
with the preparation, negotiation, execution, administration, syndication, and
enforcement of any document relating to this transaction and its role
hereunder, (ii) indemnify and hold harmless the Lenders and their respective
officers, employees, agents and directors (collectively, including the
Lenders, the "Indemnified Persons") against any and all losses, claims,
damages, or liabilities of every kind whatsoever to which the Indemnified
Persons may become subject in connection in any way with the transaction which
is the subject of this Commitment Letter, including without limitation
expenses incurred in connection with investigating or defending against any
liability or action whether or not a party thereto, except to the extent any
of the foregoing is found in a final judgment by a court of competent
jurisdiction to have arisen solely from such Lender's gross negligence or
wilful misconduct; and (iii) assert no claim against First Chicago or the
Lenders or any other Indemnified Persons seeking consequential damages on any
theory of liability in connection in any way with the transaction which is the
subject of this Commitment Letter or any multiple roles which First Chicago
assumes. The obligations described in this paragraph are independent of all
other obligations of Borrower hereunder and under the Loan Documents, shall
survive the expiration, revocation or termination of this Commitment Letter,
and shall be payable whether or not the financing transactions contemplated by
this Commitment Letter shall close. First Chicago's obligations under this
Commitment Letter are enforceable solely by the party signing this Commitment
Letter and may not be relied upon by any other person. For purposes of
enforcing this indemnity, Borrower irrevocably submits to the non-exclusive
jurisdiction of any court in which a claim arising out of or relating to the
services provided under this Commitment Letter is properly brought against
First Chicago or the Lenders and irrevocably waive any objection as to venue
or inconvenient forum. IF THIS COMMITMENT LETTER, THE TERM SHEET, THE AGENT
FEE LETTER, OR ANY ACT, OMISSION OR EVENT DESCRIBED IN THIS PARAGRAPH BECOMES
THE SUBJECT OF A DISPUTE, THE BORROWER AND FIRST CHICAGO EACH HEREBY WAIVE
TRIAL BY JURY. Borrower agrees not to settle any claim, litigation or
proceeding relating to this transaction (whether or not First Chicago is a
party thereto) unless such settlement releases all Indemnified Persons from
any and all liability in respect of such transaction.
First Chicago's Commitment hereunder is separate and distinct from First
Chicago's undertaking to act as Borrower's placement agent for the Privately
Placed Senior Debt. The Borrower has directed First Chicago that those
<PAGE> 3
personnel working on the Commitment hereunder and those personnel working on
the private placement should share the Borrower's confidential information
with each other and generally work together on this transaction. Borrower
acknowledges and consents to First Chicago's acting in these multiple roles.
Borrower understands that the personnel working on the private placement will
not be representing First Chicago as agent bank under this Commitment and
cannot bind First Chicago in that capacity.
This commitment is subject to (i) the preparation, execution, and
delivery of a mutually acceptable credit agreement ("Credit Agreement") and
other loan documents (collectively, the "Loan Documents") incorporating,
without limitation, substantially the terms and the conditions outlined herein
and in the Term Sheet; and (ii) First Chicago's determination that (a) there
is an absence of a material adverse change in the business, condition
(financial or otherwise), operations, performance, properties, or prospects of
the Borrower or any of its material subsidiaries from December 31, 1994; and
(b) there is an absence of any material adverse change prior to closing in
primary and secondary loan syndication markets or capital markets generally.
First Chicago will manage all aspects of the syndication, including,
without limitation, decisions as to the selection of institutions to be
approached and when they will be approached, when their commitments will be
accepted, which institutions will participate, the allocations of the
commitments among the Lenders and the amount and distribution of the fees
discussed herein among the Lenders. Upon First Chicago's acceptance of any
such commitment from a Lender, First Chicago shall be relieved of its
commitment to fund such amount. To assist First Chicago in its syndication
efforts, Borrower shall (a) provide and to cause its advisors to provide First
Chicago upon request with all information deemed reasonably necessary by it to
complete successfully the syndication, including, without limitation, all
information and projections prepared by Borrower or on Borrower's behalf
relating to the transactions contemplated hereby; (b) cause the management of
the Borrower to actively participate in, both the preparation of an
information package regarding the operations and prospects of the Borrower and
the presentation of the information to prospective Lenders; (c) not to make
any statement publicly about the Commitment or the Facilities which might
negatively affect First Chicago's and Lenders' ability to syndicate the
Facilities; and (d) assist, if First Chicago so requests, restructuring in a
manner mutually acceptable to First Chicago and the Borrower, of the terms and
conditions of the Facilities if, in First Chicago's judgment, any portion of
the syndication shall have been unsuccessful.
After the Borrower has publicly announced the transaction, the Borrower
authorizes First Chicago to answer inquiries from the media with respect to
the Facilities and to issue press releases with respect to the Facilities.
The foregoing authorization shall remain in effect unless the Borrower
notifies First Chicago in writing that such authorization is revoked.
Please indicate your acceptance of this commitment in the space
indicated below and return a copy of this Commitment Letter so executed to
First Chicago. This commitment will expire at 5 p.m. Wednesday, August 2,
1995, unless on or prior to such time First Chicago shall have received a copy
of this Letter executed by the Borrower. Notwithstanding timely acceptance of
the commitment pursuant to the preceding sentence, the commitment will
automatically terminate unless definitive Loan Documents are executed on or
before November 30, 1995. By its acceptance hereof, the Borrower agrees to
pay First Chicago the fees described in the fee letter ("Fee Letter") of even
date herewith.
By its acceptance hereof, Borrower hereby authorizes First Chicago, at
First Chicago's sole expense but without any prior approval by Borrower, to
publish such tombstones and give such other publicity to the Facilities as
First Chicago may from time to time determine in its sole discretion.
By accepting delivery of this Commitment Letter, the Fee Letter and the
Term Sheet, Borrower hereby agrees that, prior to executing this Commitment
<PAGE> 4
Letter, Borrower will not disclose either expressly or impliedly, without
First Chicago's consent, to any person any of the terms of this Commitment
Letter, the Fee Letter or Term Sheet, or the fact that this Commitment Letter,
the Fee Letter or Term Sheet or the financing proposal represented thereby
exists except that Borrower may disclose any of the foregoing to any employee,
financial advisor (but not to any commercial lender) or attorney of Borrower
to whom, in each case, it is necessary to disclose such information so long as
any such employee, advisor or attorney is directed to observe this
confidentiality obligation. Upon Borrower's execution of this Commitment
Letter, Borrower may make public disclosure of the existence and the amount of
the commitment; and Borrower may file a copy of the Commitment Letter, or make
such other disclosures if such disclosure is, in the opinion of Borrower's
counsel, required by law. If Borrower does not accept this commitment,
Borrower is to immediately return this Commitment Letter, the Fee Letter and
the Term Sheet (and all copies of the foregoing) to First Chicago.
This Commitment Letter and Term Sheet supersede any and all prior
versions thereof. This Commitment Letter shall be governed by the internal
laws of the State of Illinois, and may only be amended by a writing signed by
both parties.
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Nathan L. Bloch
Title: Vice President
Accepted and agreed:
BOTI ACQUISITION CORP. ("Borrower")
By: /s/ John B. Adams
Title: Treasurer
Date: July 27, 1995
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<PAGE> 5
TERM SHEET
ACQUISITION OF BIG O TIRES, INC.
July 24, 1995
This Term Sheet is delivered with a Commitment Letter of even date
herewith. Capitalized terms herein shall have the meaning set forth in the
Commitment Letter.
THE FACILITIES
Borrower: BOTI Acquisition Corp., (an Acquisition Corporation), and
after the Merger, the Company.
Amount: $40 million (the "Aggregate Commitment") comprised of loans
under the Facilities described below.
Agent: The First National Bank of Chicago (maximum commitment is
$40 million).
Lenders: A group of lenders to be determined (collectively, together
with the Agent in its capacity as lender, the "Lenders").
Documentation: The Facilities will be evidenced by a Credit Agreement,
notes, security agreements and other Loan Documents mutually
satisfactory to the Borrower and the Lenders.
Syndication
Management: The Agent will manage all aspects of the syndication
including, without limitation, the timing of offers to
potential Lenders, the amounts offered to potential Lenders,
and the acceptance of commitments, and the compensation
provided, all as set forth in the Commitment Letter.
Facility A: Term Loan
Amount: $20 million.
Purpose: To provide funds for the purchase of Company, pursuant to
the Acquisition, for payment of expenses incurred in
connection with the Acquisition, and for Borrower to provide
a loan of up to $5.5 million to the Company's ESOP (the
"ESOP Loan") in connection with the Acquisition.
Maturity: Sixth anniversary of closing.
Amortization: Quarterly installments of principal amounts per annum as
follows:
Aggregate Amount
Year Each Year
1 $2,000,000
2 $3,000,000
3 $3,000,000
4 $4,000,000
5 $4,000,000
6 $4,000,000
Facility B: Revolving Credit
Amount: $20 million (the "Facility 'B' Commitment").
Purpose: To provide funds for the working capital needs of the
Company and its Subsidiaries with a sublimit (to be
determined) for letters of credit.
Maturity: Sixth anniversary of closing.
FEES
The Borrower will pay the following fees:
Commitment Fee: A commitment fee of 1/2% per annum on the average daily
unborrowed portion of Facility "B" Commitment payable
quarterly in arrears to the Lenders (including the Agent)
ratably from the Closing Date until termination of Facility
"B" Commitment.
Agent and
Other Fees: Such fees payable to the Agent as are specified in the fee
letter between the Agent and the Borrower.
L/C Fees: Customary.
<PAGE> 6
MISCELLANEOUS FACILITY TERMS
Borrowing
Base: The aggregate outstanding amount of loans under Facility B
shall not at any time exceed the Borrowing Base. The
borrowing base will be substantially the same as the terms
of the existing Revolving Credit Agreement dated as of
January 23, 1995 among Big O Tires, Inc. and The First
National Bank of Chicago.
Allocation;
Ratable
Share: The Agent shall, in its sole discretion, allocate the
commitments received from the various lenders.
INTEREST RATES
Facility A
At the Company's option:
ABR plus 1.75% per annum
Eurodollar Rate plus 3.0% per annum
Facility B
At the Company's option:
ABR plus 1.75% per annum
Eurodollar Rate plus 3.0% per annum
"ABR" means the Alternate Base Rate and is the larger
of CBR, or the federal funds rate plus 1/2% per annum.
"CBR" means the corporate base rate of interest
announced by the Agent from time to time, changing
when and as said corporate base rate changes.
"Eurodollar Rate" means the rate offered by the Agent
in the London interbank market for deposits in the
amount of, and for a maturity corresponding to, the
Agent's portion of the loan, as adjusted for maximum
statutory reserves.
Eurodollar Rate interest periods shall be one, two,
three or six months. Interest shall be payable in
arrears on the last day of each interest period and,
in the case of an interest period longer than three
months, quarterly, and upon any prepayment. Interest
and fees will be computed for actual days elapsed on a
360-day year basis.
The Credit Agreement will include customary provisions
relating to yield protection, availability and capital
adequacy. After default, the interest rate will be
equal to the ABR plus 4% per annum.
The Eurodollar Rate will not be made available, at the
Agent's sole option, for the first 90 days following
the initial funding of the loans.
ABR advances will be in a minimum amount of $100,000,
and in multiples of $50,000 in excess thereof.
Eurodollar advances will be in a minimum amount of
$1,000,000, and in multiples of $100,000 in excess
thereof.
<PAGE> 7
COLLATERAL, GUARANTIES OR OTHER CREDIT SUPPORT
Each of the Facilities will be secured by a first perfected security
interest in all of the Company's assets and, through secured guaranties, in
all of the subsidiaries' assets, except that the Facilities will not be
secured by any of the following: (i) liens in the Las Vegas, Nevada and Boise,
Idaho distribution centers to be granted to the holders of the Privately
Placed Senior Debt; (ii) liens in the New Albany, Indiana distribution center
granted to National City Bank; (iii) liens granted by Big O Development, Inc.
in certain retail stores; and (iv) liens granted by Big O Retail Enterprises,
Inc. in certain equipment to Colonial Pacific Leasing. The collateral will
secure interest rate swaps or hedge obligations owing to any Lender.
PREPAYMENTS
Mandatory
Prepayments:
Sale of Assets: Upon the sale, transfer or other disposition of any assets
(other than the sale of inventory in the ordinary course of
business), to the extent permitted by the Lenders, the
Company shall make a mandatory prepayment in an amount equal
to 100% of the net proceeds realized from any such sale,
transfer or other disposition of Facility A until paid in
full, then to reduce commitments under Facility B to $0.
Mandatory
Prepayments:
Excess Cash Flow: Upon delivery of its audited financial statements in each
year commencing with the fiscal year ending December 31,
1995, the Company shall make a mandatory prepayment in an
amount equal to 100% of the Excess Cash Flow, if positive,
for the most recently ended fiscal year, of Facility A until
paid in full, then to reduce commitments under Facility B to
$0. Excess Cash Flow shall be defined in the Credit
Agreement.
Mandatory
Prepayment:
Sale of Equity: Upon the sale of any common stock, preferred stock, warrant
or other equity, the Company shall make a mandatory
prepayment of 100% of the proceeds thereof of Facility A
until paid in full, then to reduce commitments under
Facility B to $0.
Voluntary
Prepayments: Facility A may be prepaid in whole or in part without
premium on 1 day's notice, provided that such payments
will be in amounts of at least $500,000, and the
Facility B Commitment may be permanently reduced
without premium on 1 day's notice, provided such
payments will be in an amount of at least $500,000.
Allocation
of Prepayments: All mandatory prepayments shall be applied to the principal
installments of Facility A in the inverse order of maturity.
All voluntary prepayments shall be applied pro rata over the
remainder of the Facility.
CONDITIONS OF LENDING
The Loan Documents shall be in form and substance acceptable to the
Lenders. The Credit Agreement shall include, without limitation, conditions
precedent, representations and warranties, covenants, events of default,
indemnification and other provisions customary for such financings.
<PAGE> 8
CONDITIONS PRECEDENT
Usual conditions to each loan (including absence of default or unmatured
default, lack of material adverse change from the Company's financial
condition and operations as reflected in the Borrower's consolidated pro forma
financial statements as of March 31, 1995 previously delivered to the Agent).
Additional conditions precedent to initial loan will include without
limitation those set forth below.
Initial
Funding: Initial funding shall occur no later than November 30, 1995.
Approval: Evidence satisfactory to the Agent and the Required Lenders
(to be defined in the Credit Agreement) that the Company's
and Acquisition Sub's respective directors and shareholders
shall have approved the Acquisition; and all regulatory and
legal approvals for the Acquisition shall have been
obtained.
Litigation: Absence of injunction or temporary restraining order which,
in the judgment of the Agent or the Required Lenders would
prohibit the making of the loans or the consummation of the
Acquisition; and absence of litigation which would
reasonably be expected to result in a material adverse
effect on the Borrower and its subsidiaries.
Due Diligence: Satisfactory results of due diligence investigation of the
Company and its Subsidiaries (including without limitation
contingent liabilities (e.g., environmental, retiree medical
benefits, ERISA, etc.) and contractual obligations. All
financial, accounting, and tax aspects of the acquisition
must be acceptable.
Total
Consideration: The amounts and forms of the consideration paid in the
Acquisition shall be acceptable to the Required Lenders.
Merger
Agreement: The Merger Agreement shall contain terms and conditions
which are acceptable to the Required Lenders (including
without limitation the consideration to be paid in the
Acquisition), the representations and warranties in the
Merger Agreement shall be accurate as of the date of the
Acquisition closing and the conditions therein shall have
been satisfied and Required Lenders must have received an
opinion of counsel satisfactory to Required Lenders as to
the enforceability of the Merger Agreement and its
compliance with all applicable law.
Equity: The Borrower shall receive the Equity (described in the
Commitment Letter).
ESOP Loan: The terms of the ESOP Loan from Borrower to the ESOP shall
be upon terms and conditions acceptable to the Required
Lenders.
Subordinated
Debt: The Borrower shall have received proceeds of New
Subordinated Debt in an amount equal to at least $10
million, and the Existing Subordinated Debt shall be
amended, in each case, upon the terms set forth in the
Commitment Letter.
<PAGE> 9
Privately Placed
Senior Debt: The Borrower shall have received proceeds of the
Privately Placed Senior Debt in an amount equal to at
least $10 million upon the terms set forth in the
Commitment Letter.
Financial
Statements: The Agent and the Required Lenders shall have received (i)
pro forma opening financial statements giving effect to the
Acquisition which must not be materially less favorable, in
the Agents' and Required Lenders' reasonable judgment, than
the projections previously provided to them and which must
demonstrate, in their reasonable judgment, together with all
other information then available to the Agent and Required
Lenders, that the Borrower and its subsidiaries can repay
their debts and satisfy their respective other obligations
as and when due, and can comply with the financial covenants
acceptable to the Agent and Required Lenders, and (ii) such
information as the Agent and the Required Lenders may
reasonably request to confirm the tax, legal and business
assumptions made in such pro forma financial statements.
Fairness
Opinion: Receipt of copy of any fairness opinion from the Company's
investment banker addressed to the Company's board of
directors, relating to the terms of the Acquisition.
Valuation: The Agent and the Required Lenders shall have received
Opinions of value, solvency and other appropriate factual
information and advice in form and substance satisfactory to
them and from a source or sources acceptable to them
supporting the conclusions that after giving effect to the
Acquisition, the Borrower is solvent and will be solvent
subsequent to incurring the indebtedness in connection with
the Acquisition, will be able to pay its debts and
liabilities as they become due and will not be left with
unreasonably small capital with which to engage in its
businesses.
Environment: If requested by the Required Lenders, an environmental
review report, satisfactory in form and substance to
the Required Lenders, from an environmental review
firm acceptable to the Required Lenders, as to any
environmental hazards or liabilities and with the
Borrower's plans with respect thereto.
Existing Facilities: Prepayment of all obligations under existing First
Chicago loan facilities (other than those under the
Facilities).
Legal: All legal (including tax implications) and regulatory
matters shall be satisfactory to the Required Lenders.
Collateral: Liens creating a first priority security interest in the
Collateral shall have been perfected.
Regulations: Compliance with all applicable requirements of
Regulations U, G, T and X of the Board of Governors of
the Federal Reserve System.
<PAGE> 10
No Default;
No MAC: No default or unmatured default shall exist on the funding
date and no material adverse change in the business,
condition (financial or otherwise), operations, performance,
properties or prospects of the Borrower or any obligor or
guarantor since December 31, 1994, shall have occurred.
Interest
Rate Protection: The Agent may require the Borrower to enter into interest
rate swap and hedge agreements or other agreements which
effectively limit the amount of interest that the Borrower
must pay on notional amounts of the lender financing to be
agreed upon.
Customary
Documents: Receipt of other customary closing documentation, including,
without limitation, legal opinions of the Borrower's
counsel, acceptable to the Agent.
COVENANTS
Covenants: The Credit Agreement will contain customary covenants,
including, without limitation, restrictions (subject to
exceptions, as appropriate, to be negotiated) on the
following:
-liens and encumbrances
-dividends and retirement of stock
-guarantees
-sale and leaseback transactions
-sale of assets
-consolidations and mergers
-investments and acquisitions
-capital expenditures
-loans and advances
-indebtedness and additional indebtedness
-compliance with pension, environmental and
other laws
-operating leases
-transactions with affiliates
-changes in line of business
-hedging of interest rates
(e.g., with swaps, caps)
-prepayment of other debt
-permit inspection of records and assets
-other
Financial
Covenants: The Credit Agreement will contain financial covenants
containing limitations to be negotiated, including, without
limitation, covenants pertaining to:
-minimum net worth
-interest coverage
-leverage ratio
-fixed charge coverage
-cash flow coverage
REPRESENTATIONS
AND WARRANTIES
Usual representations and warranties in connection with each loan shall
be included in the Credit Agreement, including but not limited to absence of
material adverse change, absence of material litigation, absence of default or
unmatured default, representations regarding environmental issues, priority of
the Lender's liens, compliance with all material requirements of law and
contracts, and compliance with Regulations G, U, T and X.
<PAGE> 11
DEFAULTS
Customary events of default, including, without limitation, cross
default to occurrence of a default (whether or not resulting in acceleration)
under any other agreement governing indebtedness of the Company or any of its
subsidiaries and change of control.
ASSIGNMENTS AND PARTICIPATIONS
Each Lender may, in its sole discretion, sell participations and may, in
a manner acceptable to Agent, sell assignments in the loans and in its
commitment and disclose information to prospective participants and assignees,
and share, at its option, any fees with such participants and assignees. The
assignor shall pay an assignment fee (each an "Assignment Fee") of $5,000 to
First Chicago upon any assignment by a Lender of its rights and obligations
under the Credit Facilities (including, but not limited to, an assignment by a
Lender to another Lender).
OTHER
This commitment is governed by the law of the State of Illinois. This
term sheet is intended as an outline only and does not purport to summarize
all the conditions, covenants, representations, warranties and other
provisions which would be contained in definitive legal documentation for the
financing contemplated hereby. The commitment of the Agent and the other
Lenders is subject to negotiation and execution of definitive Loan Documents
in form and substance satisfactory to the Agent and the other Lenders and
their respective counsel. In addition, the organizational structure of the
Company after the Acquisition, the form and structure of the Acquisition and
the financial, legal, accounting, tax and all other aspects of the Acquisition
shall be satisfactory to the Agent and the other Lenders and their respective
counsel.
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