================================================================================
FORM 10-K
-------------------------
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED FEBRUARY 2, 1997--COMMISSION FILE NUMBER 0-8550
-------------------------
PCA INTERNATIONAL, INC.
- - --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
NORTH CAROLINA 56-0888429
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
815 MATTHEWS-MINT HILL ROAD
MATTHEWS, NORTH CAROLINA 28105
(Address of principal executive offices)(Zip Code)
Registrant's telephone number, including area code (704) 847-8011
-------------------------
Securities Registered Pursuant to Section 12(b) of the Act:
None
Securities Registered Pursuant to Section 12(g) of the Act:
Common Stock, $.20 par value per share
(Title of Class)
-------------------------
================================================================================
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days:
Yes X No_____
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [ ]
At March 31, 1997, there were 7,631,829 shares of the registrant's common
stock outstanding; the aggregate market value of such common stock (based on the
closing price on the over-the-counter National Association of Securities Dealers
National Market System) held by non-affiliates was approximately $127,833,135.
DOCUMENTS INCORPORATED BY REFERENCE
THE INFORMATION REQUIRED BY PART III IS INCORPORATED BY REFERENCE TO THE
REGISTRANT'S DEFINITIVE PROXY STATEMENT TO BE FILED NOT LATER THAN 120 DAYS
AFTER THE END OF THE REGISTRANT'S FISCAL YEAR 1996.
================================================================================
<PAGE>
PART I
ITEM 1. BUSINESS
GENERAL DEVELOPMENT
THE COMPANY. PCA International, Inc. (the "Company") is a holding
company engaged through its subsidiaries in the sale of photographic color
portraits of children, adults, families, and pets. The Company operates in the
United States, Canada, Puerto Rico, Mexico, and Argentina. Executive offices and
film developing and portrait processing facilities are located in Matthews,
North Carolina. A second portrait processing facility and distribution center
are located in Charlotte, North Carolina. The Company was organized as a North
Carolina corporation in 1967 and has been in business since 1967.
The Company's fiscal year ends on the Sunday nearest the end of
January. The fiscal year ended February 2, 1997 was a 53-week year. The fiscal
years ended January 28, 1996 and January 29, 1995 were 52-week years. The
Company's 1997 fiscal year that will end February 1, 1998, will be 52 weeks.
CAPITAL EXPENDITURES. Capital expenditures in fiscal 1996 were $13.4
million, primarily for the addition of portrait studios in 90 Wal-Mart stores in
the U.S. and Canada, the addition of 100 new PETsMART portrait studios, the
addition of 38 new Kmart portrait studios, the relocation and expansion of
portrait studios in 66 Supercenter Kmarts, and for upgrading equipment in the
Matthews, North Carolina, processing facility. During fiscal year 1995, the
Company spent $6.3 million, primarily for the net addition of 91 Kmart studios
and upgrading certain processing equipment in the laboratory in its Matthews'
facility.
ACQUISITION OF WAL-MART PORTRAITURE BUSINESS. As part of its strategy
to diversify its retail partnerships and expand its distribution channels, the
Company made two acquisitions of Wal-Mart portraiture businesses. These
acquisitions significantly expanded the Company's retail studio operations in
Canada, the United States, and Mexico. In April 1996, the Company's Canadian
subsidiary purchased certain assets of two related Canadian portrait businesses,
Portrait Works, Inc. and Portrait Experience of Canada, Ltd. for $1.2 million.
The Company funded the purchase from cash on hand and operates these studios
under a long-term license agreement with Wal-Mart's Canadian subsidiary. The
Company operated portrait studios in 65 Canadian Wal-Mart stores on February 2,
1997.
On December 17, 1996, the Company, through its wholly owned subsidiary
ASI Acquisition Corp. entered into a definitive agreement to acquire all the
outstanding shares of American Studios, Inc. for $2.50 cash per share. On
January 23, 1997, the Company completed the tender offer for American Studios
shares with approximately 95% of the shares tendered. The Company funded the
acquisition of approximately 95% of the outstanding shares of American Studios,
amounting to $50.8 million, with a $75.8 million Tender Loan Facility agreement
with NationsBank of North Carolina, N.A. After completing the tender offer and
merger of American Studios into a subsidiary of the Company, the Company
refinanced the Tender Loan Facility on February 28, 1997, with a $65 million
5-year term loan and a $25 million revolving line of credit to pay for the
acquisition and provide for the Company's working capital and future expansion
needs. NationsBank of North Carolina, N.A. acted as agent for the loan
syndication. American Studios provided portrait services in over 2,300 Wal-Mart
stores in the United States and Mexico. Approximately 832 Wal-Mart stores in the
United States and 18 in Mexico serviced by American Studios had permanent
studios on February 2, 1997, and the remainder are serviced by traveling
promotions.
<PAGE>
STUDIO CLOSINGS. The Company announced on February 3, 1997, the closing
of approximately 415 underperforming permanent portrait studios located
throughout the United States. This will be completed by May 1997. The Company
recorded a $6.0 million pretax ($3.6 million after-tax) fourth quarter charge
relating to the write-off of the unamortized studio leasehold improvements and
accruals for the expected expenses associated with closing these studios. In
April 1996, the Company ceased its Canadian and Mexican Kmart portrait
operations, closing 111 permanent studios.
INDUSTRY SEGMENT
The Company operates in the portrait photography industry and
photographs, processes, and sells photographic portraits. Within the industry,
the Company services the children's preschool market and the pet market through
permanent studio operations and services the adult and family markets through
traveling promotions in churches and other institutions.
U.S. PRESCHOOL PORTRAIT OPERATIONS
The Company operates portrait studios, primarily servicing the
children's preschool portrait market, in Kmart and Wal-Mart stores in the United
States. As described more fully in the Management's Discussion and Analysis,
PCA's fiscal 1996 operating results do not reflect the operating results of
American Studios, while studio counts reflect the combined companies. The U.S.
Kmart studio operations contributed 86.5% of the Company's revenue in fiscal
year 1996, 90.2% in 1995, and 90.7% in 1994. At the end of fiscal year 1996, the
Company operated 1,348 permanent U.S. Kmart studios, a net decrease of 49 from
1995. During 1996, 38 U.S. Kmart studios were opened and 87 U.S. Kmart studios
were closed. The Company operates permanent portrait studios in approximately
856 U.S. Wal-Mart stores, including approximately 832 studios acquired in the
January 27, 1997, acquisition of American Studios, and services more than 1,350
Wal-Mart stores in the United States four to seven times a year with traveling
promotions. In 1997, the Company expects to open approximately 100 new permanent
studios domestically and close approximately 415 underperforming permanent
studios as previously mentioned.
The Company operates and advertises its permanent studios under the
name of its retail partners, Kmart and Wal-Mart. The Company is able to place
its media advertising under the name of its retail partners at rates that are
lower than those the Company could independently obtain. Customers are attracted
to the studio through a variety of advertising methods including in-store
point-of-sale merchandising, television and newspaper advertising, and direct
mail to current and prospective customers. The Company seeks to maintain an
advertising presence throughout the year in all geographic markets where the
Company operates permanent studios. The Company has initiated several marketing
programs to increase in-store awareness with customers.
The typical permanent studio occupies approximately 200 to 300 square
feet, consisting of a camera room, a portrait viewing and sales area, and a
reception area with point-of-sale computer. Generally, the permanent studio is
staffed by one or more employees who perform both the photography and sales
functions.
INTERNATIONAL
At the end of fiscal year 1996, the Company operated 65 permanent
studios in Wal-Mart stores in Canada, 18 in Mexico from the acquisition of
American Studios, and 1 in Argentina. Additionally, the Company operated 8
portrait studios in PETsMART stores in Canada. The Company's Canadian studios
provided 4.4%, 4.5%, and 4.3% of revenues for fiscal 1996, 1995, and 1994,
respectively. The Company operated 107 studios in Canada and 4 studios in Mexico
under license agreements with Kmart until March 1996, at which time the licenses
to operate such studios were terminated. The Company began operating studios in
Canadian Wal-Mart stores in
2
<PAGE>
April 1996. The Company's Canadian subsidiary has entered into a long-term
licensing agreement with Wal-Mart's Canadian subsidiary for the operation of
portrait studios in Canadian Wal-Mart stores, and expects to open between 30 and
40 studios during fiscal 1997. Additionally, the Company plans to open
approximately 15 Wal-Mart studios in Mexico and South America in fiscal 1997.
INSTITUTIONAL OPERATIONS
The Company contracts with institutions, primarily church
congregations, to photograph and sell individual and family group portraits of
the congregation members. The Company does not pay commissions to the hosting
institutions, but provides a free photo directory to all members who agree to be
photographed. Approximately three weeks after the photography session, the
finished portraits are sent to the church or directly to the consumer. During
fiscal 1996, the Company operated approximately 31 portable camera units each
week for Institutional promotions. The Company does not expect the number of
portable units in service to change significantly during 1997.
PET PHOTOGRAPHY OPERATIONS
The Company operates a pilot program with permanent portrait studios in
114 PETsMART retail stores in the United States and Canada. These studios
operate five or seven days a week and are staffed by one or two employees.
During 1996, the Company opened portrait studios in 100 PETsMART stores. The
Company advertises using various methods including, in-store point-of-sale
merchandising, newspaper advertising, and direct mail. The portrait package
offered in PETsMART is generally smaller than the package offered in the
preschool portrait operations. The Company does not expect the number of
PETsMART portrait studios to change significantly during 1997.
SEASONALITY
Because of the retail nature of its services and its locations in
discount stores, the Company's business is very seasonal. The Christmas season
accounts for a high percentage of the Company's sales and earnings, and the
Company's fourth fiscal quarter (late October through late January) typically
produces a large percentage of annual revenues and annual earnings. The fourth
fiscal quarters of 1996, 1995, and 1994 accounted for approximately 33.2%,
32.2%, and 31.2%, respectively, of sales, and 32.8%, 64.2%, and 79.3%,
respectively, of earnings for those years. The 1996 fourth quarter earnings
would have accounted for 69.5% of annual earnings before giving effect to the
$3.6 million charge after tax for studio closure costs.
COMPETITION
The children's preschool portrait market is highly competitive and no
one firm dominates the United States market. The market comprises several large
competitors, including the Company, operating in multiple locations, and
numerous smaller entities operating in only one or a few locations. The Company
believes that it is one of the largest portrait providers measured by annual
sales and the largest operator of retail professional portrait studios in the
children's preschool portrait market through its association with Kmart and
Wal-Mart.
Competition for the Company's products, especially in the children's
preschool portrait market, centers on the quantity and quality of the portrait
packages relative to the price charged. Other competitive factors include the
benefits of the Company's digital imaging technology available at over 2,000
permanent portrait studios, the convenience of these studios located in retail
discount stores, customer service, and the extensive industry experience of the
Company's management. The Company believes that the quality of its portraits and
customer service, which is
3
<PAGE>
enhanced by the digital imaging system, is an important factor in obtaining
repeat business from customers. The major competitors in the market seek to
attract new customers through advertised low-priced portrait packages and the
benefits of the new digital technology, or low-priced session fees coupled with
custom portrait ordering of individual portrait sheets.
LICENSES, TRADEMARKS, AND PATENTS
The Company is party to a license agreement with Kmart Corporation that
allows the Company to operate its permanent studios in the United States Kmart
stores under the Kmart name in exchange for a commission from the Company based
on a percentage of sales from the permanent studio in each store. The Company
has continuously maintained its business relationship with Kmart Corporation for
more than 29 years. The license agreement, which was renewed on May 10, 1996,
expires May 9, 2001, and may be terminated by either party upon 180-days'
notice. The Company assumed American Studios' license agreement with U.S.
Wal-Mart Stores, Inc. when it acquired American Studios on January 27, 1997.
Wal-Mart may terminate or amend the license agreement at any time. The loss of
the license to do business in U.S. Kmart stores, U.S. Wal-Mart stores, or the
closing of a significant number of U.S. Kmart or U.S. Wal-Mart stores would have
a materially adverse effect on the Company.
On February 9, 1996, the Company's Canadian subsidiary entered into a
license agreement with Wal-Mart Canada, Inc. to operate portrait studios in
Wal-Mart's stores in Canada. The license agreement is for a five-year period on
a store-by-store basis.
The Company owns certain other patents, trademarks, and licenses that
it does not believe are material to its business.
TECHNOLOGY: RESEARCH AND DEVELOPMENT
The Company has developed a proprietary digital imaging system that
allows the customer to view a digital proof of each pose on a high-resolution
video monitor as the photographer takes the portraits. Immediately after the
photography session, customers are able to customize their portrait purchase,
choosing the poses, sizes, and number of portraits they wish to purchase. The
customer then returns to the studio approximately three weeks later to pick up
the finished portraits. The Company believes the increased flexibility and
choice provided to customers by the digital imaging system have improved
customer satisfaction and increased average purchases. As a byproduct of its
digital technology, the Company prints only portraits purchased by the customer,
eliminating waste associated with the speculative production method.
Furthermore, the Company's production efficiency is enhanced through integration
of the digital imaging system with the Company's computerized production system.
The Company believes that its integrated system is unique in the portrait
photography industry.
The Company operates two film processing facilities in the Charlotte,
North Carolina, area. The Company processes film from its permanent studios and
Institutional promotions at its finishing laboratory in Matthews, North
Carolina, and from permanent and traveling studios previously operated by
American Studios at a second finishing laboratory located in Charlotte, North
Carolina. The finishing laboratories have adequate capacity to meet the
Company's processing needs for the foreseeable future.
The Company spent $1,321,000; $1,033,000; and $748,000 on research and
development activities during the 1996, 1995, and 1994 fiscal years. Research
and development efforts have focused on developing and refining the digital
imaging system, integrating the system with the Company's computerized
processing facility, and developing a portrait studio for pet photography in
PETsMART retail stores.
4
<PAGE>
SOURCES AND AVAILABILITY OF SUPPLIES
The Agfa Division of Bayer Corporation is the Company's primary
supplier of photographic film, paper, and processing chemicals. The Company
renewed its supply contract with Agfa in 1994 after receiving competitive bids
from other suppliers. The Company has not had significant difficulty obtaining
photographic supplies. The Company builds its own cameras and printing equipment
and has an adequate supply of cameras, camera components, and production
equipment.
The Company has not found it necessary to carry significant amounts of
inventory to ensure a continuous allotment of raw materials. The Company's
receivables from licensors and customers are due within the cycle of payments to
suppliers.
The computer and video equipment used by the Company in the digital
imaging system consists of standard components that are readily available from
multiple suppliers.
GOVERNMENTAL REGULATIONS
The Company is subject to various federal and state laws and
regulations, including the Occupational Safety and Health Act and federal and
state environmental laws. The Company is not aware of any material violation of
such laws and regulations. Continued compliance is not expected to have a
material effect upon capital expenditures, earnings, or the competitive position
of the Company.
EMPLOYEES
At February 2, 1997, the Company had approximately 5,325 full-time and
775 part-time employees. The Company believes employee relations are good.
EXECUTIVE OFFICERS OF THE REGISTRANT
NAME AGE POSITIONS AND OFFICES
John Grosso(1) 50 President, Chief Executive Officer, and
Director (Since 1987)
Jan M. Rivenbark(2) 47 Executive Vice President and
Chief Operating Officer (Since 1992) Mr.
Rivenbark resigned from the Company on March
13, 1997.
Eric H. Jeltrup(3) 52 Executive Vice President and Chief Technical
Officer (Since 1991)
J. Robert Wren Jr. (4) 49 Executive Vice President and General Counsel
(Since 1997)
Bruce A. Fisher(5) 47 Senior Vice President and Chief Financial
Officer and Secretary (Since 1992)
R. Michael Spencer(6) 49 Senior Vice President and Treasurer
(Since 1992)
5
<PAGE>
(1)Mr. Grosso has been President and Chief Executive Officer of the Company
since 1987.
(2)Mr. Rivenbark resigned from the Company on March 13, 1997. Mr. Rivenbark had
been Executive Vice President of the Company since August 1992 and was Chief
Operating Officer since August 25, 1994. Prior to joining the Company, he was
President and Chief Operating Officer of JP Foodservice, Inc.
(3)Mr. Jeltrup has been with the Company in various positions in research and
development and production since 1976. He has served as Executive Vice
President since 1991 and was promoted to Chief Technical Officer on August
25, 1994.
(4)Mr. Wren joined the Company in January 1997 as Executive Vice President and
General Counsel. Prior to that, Mr. Wren served as CEO of American Studios,
Inc. from July 1995 until its acquisition January 1997. He served in various
other positions with American Studios, Inc. including director and general
counsel. From July 1986 to December 1992, Mr. Wren was a partner in the law
firm of Garland & Wren, P.A., Gastonia, NC.
(5)Mr. Fisher has been with the Company in various positions in accounting and
finance since 1977 and was promoted to Chief Financial Officer and Secretary
on August 25, 1994.
(6)Mr. Spencer has been with the Company since 1973 in various positions in
accounting. He was promoted to Senior Vice President, Treasurer on January 6,
1992.
ITEM 2. PROPERTIES
The Company owns three facilities in the Charlotte, North Carolina,
area. One facility in Matthews, North Carolina, serves as its corporate
headquarters, production facility, and warehouse. The building is approximately
166,000 square feet. The Company also owns two facilities in Charlotte, North
Carolina, acquired through the American Studios' acquisition: a processing and
administrative facility which is approximately 60,000 square feet and a
distribution center which is approximately 31,400 square feet. All of these
facilities are subject to liens in favor of NationsBank of North Carolina, N.A.,
as agent for the Company's $90 million loan facility. The Company operates 1,348
permanent studios with Kmart and 940 permanent studios with Wal-Mart, all under
license agreements. The Company owns the equipment, furniture, and fixtures in
all permanent studios.
ITEM 3. LEGAL PROCEEDINGS
There are no legal proceedings to which the Company, or its
subsidiaries, is a party or of which any of their property is the subject that
are required to be disclosed under this item.
ITEM 4. SUBMISSION OF MATTERS TO A
VOTE OF SECURITY HOLDERS
There were no matters submitted to a vote of shareholders during the
fourth quarter ended February 2, 1997.
6
<PAGE>
PART II
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON
STOCK AND RELATED STOCKHOLDER MATTERS
The Company's common stock trades on the Nasdaq National Market tier of
The Nasdaq Stock Market under the symbol "PCAI." The following is the range of
high and low bid prices for the shares of common stock during the Company's last
two fiscal years, as reported on the Nasdaq National Market:
FISCAL YEAR ENDED FISCAL YEAR ENDED
FEBRUARY 2, 1997 JANUARY 28, 1996
----------------------------- ------------------------------
HIGH LOW HIGH LOW
1ST QUARTER $14.13 $ 9.00 $11.00 $ 8.75
2ND QUARTER $17.75 $13.00 $14.25 $10.12
3RD QUARTER $19.00 $15.50 $14.25 $10.25
4TH QUARTER $18.25 $15.00 $12.00 $ 8.37
At March 31, 1997, the Company had approximately 977 shareholders of
record and the closing bid price for a share of common stock was $16.12.
The Company paid cash dividends of $0.07 per share in the first three
quarters of fiscal 1996 and in each quarter of fiscal 1995. On December 4, 1996,
the Company's Board of Directors voted to suspend payment of its quarterly
dividend in anticipation of the financial requirements for the acquisition of
American Studios, Inc.
7
<PAGE>
ITEM 6. SELECTED FINANCIAL DATA
(In thousands, except for percentages, ratios, statistics, and per share data)
<TABLE>
<CAPTION>
FOR THE FISCAL YEARS ENDED APPROXIMATELY JANUARY 31,
------------------------------------------------------------------------
1997* 1996 1995 1994 1993
----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C>
SUMMARY OF OPERATIONS:
SALES........................................ $ 156,099 $ 144,715 $ 144,881 $ 149,150 $ 142,865
GENERAL AND ADMINISTRATIVE EXPENSE........... $ 31,676 (1) $ 23,782 $ 22,936 $ 20,594 $ 16,374
TOTAL COSTS AND EXPENSES..................... $ 150,783 (1) $ 131,392 $ 137,028 $ 140,947 $ 130,182
INCOME FROM CONTINUING OPERATIONS BEFORE
CUMULATIVE EFFECT OF CHANGES IN
ACCOUNTING PRINCIPLES..................... $ 2,994 (2) $ 7,617 $ 4,372 $ 4,912 $ 7,778
NET INCOME $ 2,994 (2) $ 7,617 $ 4,785 $ 2,712 $ 7,410
PRIMARY AND FULLY DILUTED EARNINGS PER COMMON
SHARE:
FROM CONTINUING OPERATIONS BEFORE
CUMULATIVE EFFECT OF CHANGES IN
ACCOUNTING PRINCIPLES................. $ 0.37 (2) $ 0.94 $ 0.51 $ 0.56 $ 0.94
NET INCOME............................... $ 0.37 (2) $ 0.94 $ 0.56 $ 0.31 $ 0.89
WEIGHTED AVERAGE NUMBER OF FULLY DILUTED
COMMON SHARES......................... 8,154 8,110 8,582 8,823 8,306
CASH DIVIDENDS PER SHARE................. $ 0.21 $ 0.28 $ 0.28 $ 0.28 $ 0.28
RETURN ON AVERAGE EQUITY................. 9.2% 23.7% 15.1% 9.3% 36.3%
BALANCE SHEET DATA:
WORKING CAPITAL............................... $ (22,472) (3) $ (3,878) $ (6,697) $ (4,321) $ 7,423
CURRENT RATIO................................. 0.55 0.82 0.67 0.81 1.35
QUICK RATIO................................... 0.35 0.70 0.52 0.59 1.10
TOTAL ASSETS.................................. $ 146,661 $ 59,884 $ 59,557 $ 56,751 $ 51,975
LONG-TERM DEBT (NONCURRENT PORTION)........... $ 58,680 (3) $ -- $ -- $ -- $ --
RATIO OF LONG-TERM DEBT (NONCURRENT PORTION)
TO TOTAL CAPITALIZATION(4)................ 0.64 -- -- -- --
TOTAL SHAREHOLDERS' EQUITY PER SHARE(5)....... $ 4.13 $ 3.85 $ 3.85 $ 3.43 $ 3.41
OTHER FINANCIAL DATA:
DEPRECIATION EXPENSE.......................... $ 9,498 $ 8,490 $ 7,136 $ 5,159 $ 3,455
CAPITAL EXPENDITURES.......................... $ 13,424 $ 6,309 $ 14,698 $ 21,875 $ 12,233
</TABLE>
*PCA's operating results for the fiscal year ended February 2, 1997, do not
include operating results from American Studios, Inc. as the acquisition was
accounted for by the purchase method at year-end; balance sheet information
includes the assets and liabilities of the combined companies.
(1)INCLUDES $6 MILLION CHARGE FOR STUDIO CLOSURE COSTS.
(2)NET INCOME AND EARNINGS PER SHARE INCLUDE TAX EFFECTED STUDIO CLOSURE COSTS
OF $3.6 MILLION OR $0.44 PER SHARE. EXCLUDING THIS AMOUNT, NET INCOME WAS
$6.6 MILLION OR $0.81 PER SHARE.
(3)THE COMPANY REPLACED ITS EXISTING CREDIT FACILITY ON JANUARY 27, 1997 WITH A
TENDER LOAN FACILITY USED TO FINANCE THE TENDER OFFER FOR AMERICAN STUDIOS,
INC. AFTER COMPLETING THE TENDER OFFER AND MERGER OF AMERICAN STUDIOS, INC.
THE COMPANY REFINANCED THE TENDER LOAN FACILITY ON FEBRUARY 28, 1997 WITH A
$65 MILLION FIVE-YEAR TERM LOAN AND A $25 MILLION REVOLVING LINE OF CREDIT TO
PAY FOR THE ACQUISITION AND PROVIDE FOR WORKING CAPITAL NEEDS.
(4)TOTAL CAPITALIZATION IS LONG-TERM DEBT AND TOTAL SHAREHOLDERS' EQUITY.
(5)TOTAL SHAREHOLDERS' EQUITY PER SHARE HAS BEEN CALCULATED DIVIDING TOTAL
SHAREHOLDERS' EQUITY BY THE WEIGHTED AVERAGE NUMBER OF FULLY DILUTED SHARES.
8
<PAGE>
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
OVERVIEW
The Company provides professional portrait photography services by
operating permanent studios in Kmart stores in the United States and Puerto Rico
and in Wal-Mart stores through permanent studios and traveling promotions in the
United States, Canada, Puerto Rico, Mexico, and South America. The Company
operates a pilot program for pet portrait photography in PETsMART stores in the
United States and Canada. PCA's Institutional Division provides portrait
services to church congregations and day care centers through traveling
promotions. The Company's Kmart studios accounted for approximately 87.2% of
sales in fiscal 1996. At the end of fiscal 1996, the Company operated permanent
studios in 1,348 U.S. Kmart stores, 856 U.S. Wal-Mart stores, 84 International
Wal-Mart stores, and 114 PETsMART stores. The Company also serves approximately
1,350 Wal-Mart stores with traveling promotions. PCA's fiscal 1996 operating
results do not include the operating results of American Studios, Inc. while
studio counts give effect to the combined companies.
In 1996, the Company diversified its retail partnerships and expanded
its distribution channels. In support of this strategy, the Company engaged in
the following activities:
o In April 1996, the Company acquired certain assets of two related Canadian
portrait businesses, Portrait Works, Inc. and Portrait Experience of
Canada, Ltd., Wal-Mart Canada's previous provider. PCA's Canadian
subsidiary then entered into a long-term license agreement with Wal-Mart's
Canadian subsidiary to operate permanent studios in Wal-Mart's Canadian
stores. PCA converted the 42 existing studios to full-service studios with
its digital imaging technology and opened 23 additional new Canadian
Wal-Mart studios during the year. The Company operated a total of 65
Canadian Wal-Mart portrait studios at year-end.
o In April 1996, the Company closed 107 Canadian Kmart studios and 4 Mexican
Kmart studios and discontinued Kmart operations in these markets.
o In August 1996, the Company entered into an agreement with Wal-Mart
Stores, Inc. to operate a total of 17 permanent portrait studios in Denver,
Salt Lake City, and Phoenix. The Company also began operating 7 Wal-Mart
studios in Puerto Rico.
o In November 1996, the Company began the process to acquire American
Studios by executing a letter of intent for PCA to acquire American Studios
at $2.50 cash per share. In December, the Companies executed a definitive
agreement for PCA to acquire American Studios. On January 27, 1997, the
Company successfully completed the cash tender offer for shares of American
Studios. On February 28, 1997, PCA completed the acquisition of American
Studios. This acquisition expanded the number of Wal-Mart stores PCA serves
to over 2,300, including 850 Wal-Mart stores previously served by American
Studios through permanent studio operations with the remainder served
through traveling promotions.
o The Company opened one Wal-Mart studio in Argentina in December 1996.
o PCA renovated and relocated 66 Super Kmart Center studios to store-front
locations, each with two camera rooms and expanded reception and children's
play area. Additionally, the Company opened 38 and closed 87 portrait
studios in Kmart.
9
<PAGE>
o PCA expanded its pilot program for pet portraiture with the opening of 100
PETsMART studios in the United States and Canada. The Company operated a
total of 114 studios at year-end.
o PCA expanded its Institutional promotions with the addition of day care
center portrait promotions.
Overall, PCA opened 252 permanent studios (including 66 upgraded Super
Kmart studios) while closing 198 studios in fiscal 1996, in addition to the 892
Wal-Mart studios acquired through the two acquisitions.
HISTORICAL BUSINESS REVIEW
In 1995 and 1994, PCA provided portrait services primarily through
permanent Kmart studios in the United States and Canada. Kmart studios accounted
for 95% of total sales both in 1995 and 1994. The Company opened 164 permanent
Kmart studios in 1995 and closed 73 studios, resulting in a net addition of 91
studios. At the end of fiscal 1995, the Company operated 1,508 permanent Kmart
studios in the U.S., Canada, and Mexico. The Company opened 136 permanent
studios in 1994 and operated 1,417 at the end of fiscal 1994. Prior to August
1994, the Company also operated traveling, or portable, studio promotions in
Kmart stores that did not have a permanent studio. Because traveling promotions
were available only seven weeks per year in any given Kmart location and because
permanent studios were more profitable than traveling promotions, the Company
converted its traveling promotion business in Kmart stores to permanent studios.
In July 1994, the Company completed the conversion, begun in November
1992, of all Kmart studio locations to its digital imaging technology. The
digital imaging technology allows customers to approve each portrait during the
photography session as each pose is displayed on a video monitor. With this
technology, the Company no longer relies on the production of portraits on a
speculative basis, but produces only those portraits which the customer
purchases. The conversion to digital technology has resulted in significant
changes in the Company's operations, increasing the emphasis on better quality
portraits and service and allowing the Company to improve its per-customer sales
average. The Company's system has reduced product costs primarily through the
elimination of waste from speculative portrait production.
Beginning with the fourth quarter of fiscal 1993 and continuing through
fiscal 1996, the portrait services industry has experienced extremely
competitive pricing and promotional conditions. The Company expects competitive
pricing conditions will be less aggressive than they have been in the past and
continues to place emphasis on the quality and value of its portrait products
and services, and the enhanced portrait experience made possible through its
digital imaging system.
Because of the retail nature of its services, the Company's business is
very seasonal. The Christmas season accounts for a significant percentage of the
Company's sales and earnings, and the Company's fourth fiscal quarter (beginning
in late October of each calendar year and ending approximately January 31 of the
succeeding calendar year) typically produces a large percentage of annual
revenues and annual earnings. The fourth fiscal quarters of fiscal 1996, 1995,
and 1994 accounted for 33.2%, 32.2%, and 31.2%, respectively, of sales and
32.8%, 64.2%, and 79.3%, respectively, of earnings for such years. Earnings for
the fourth quarter of fiscal 1996 were impacted by a charge for studio closure
costs of $3.6 million after-tax, discussed below. Without this charge, earnings
in the fourth quarter of fiscal 1996 were approximately 69.5% of fiscal year
earnings. The Company's operations can also be adversely affected by inclement
weather, especially during the important fiscal fourth quarter.
10
<PAGE>
CONTINUING OPERATIONS
1996 PCA FISCAL YEAR COMPARED WITH 1995 PCA FISCAL YEAR. Sales for
fiscal year 1996 increased 7.9% to $156.1 million, compared to $144.7 million in
fiscal year 1995. On a consolidated basis, the number of customers photographed
increased 8.9% to 2.9 million and the average customer purchase was $53.20 per
customer. Fiscal 1996 was a 53-week year versus 52 weeks in fiscal 1995. On a
comparable 52-week basis, sales increased 6.5%.
In 1996, PCA diversified its retail partnerships and expanded its
distribution channels. Sales by distribution channel reflect these new sources.
In 1996, sales through its U.S. Kmart portrait studios were $135.1 million and
accounted for 86.5% of total sales; Wal-Mart portrait studio sales, both
international and domestic, were $6.6 million, or 4.2% of sales; PCA's
Institutional Division and PETsMART pilot program provided $13.3 million, or
8.5% of sales. In 1995, U.S. Kmart studio sales were $130.6 million, or 90.2% of
sales; and PCA's PETsMART pilot program and Institutional sales were $7.5
million, or 5.2% of sales.
Total operating costs and expenses increased 10.2%, before the fourth
quarter charge of $6.0 million to close 415 underperforming portrait studios,
and accounted for 92.8% of sales compared to 90.8% of sales in 1995. Advertising
and promotional costs as a percentage of sales were 10.4%, versus 10.2% in 1995.
The increase in advertising and promotional costs is attributable to promotional
costs to introduce the Company's digital imaging system in the new Canadian and
U.S. studios. Principally due to the increase in customers photographed, cost of
photographic sales increased $4.9 million, or 10.3%, to 33.7% of sales in 1996,
compared to 32.9% of sales in 1995. Store commission and selling costs increased
to 32.3% of sales, compared to 31.2% the prior year. Labor costs, associated
with the PETsMART pilot program and staffing requirements to operate more
seven-day studios in discount store permanent studios, caused the increase in
direct selling cost.
General and administrative expense levels before the fourth quarter
charge were 16.4% of sales for 1996, similar to prior year's level. The Company
experienced a slight reduction in corporate administrative expenses as benefit
costs were lower, offset by an increase in field administrative expenses to
support our Wal-Mart and PETsMART expansion, and the write-off of leasehold
improvements associated with the relocation and studio expansion in 66 Super
Kmart Centers. The Company recorded a pretax charge of $6.0 million for the
closing of 415 portrait studios which were not meeting the Company's
profitability objectives. This charge includes the write-off of leasehold
improvements and other fixed assets in these stores, separation pay, cost to
restore the studios to the same condition they were in prior to the Company
installing the portrait studio, and customer refunds. The Company will
operate these portrait studios until June 1997.
Income from operations, before the charge to close 415 portrait
studios, declined 15.1% to 7.2% of sales from 9.2% of sales in 1995, a direct
result of the investment spending initiatives enumerated above to pursue the
Company's diversification objectives in Wal-Mart and PETsMART. The costs
associated with the PETsMART expansion, the Wal-Mart expansion, and overall
costs to support the diversification activities were the principal reasons for
the operating margin decline.
Pretax income declined 60.1% to $5.1 million, compared to $12.9 million
in 1995. This pretax figure includes the $6.0 million charge for studio closure
costs noted above. Interest expense, on a net basis, declined 60.9% due to
repayment of borrowings to fund the Company's repurchase of over $7.7 million of
stock in 1995. Income tax provision for 1996 was $2.1 million as compared to
$5.2 million in 1995. The tax provision as a percentage of income was 41.7%
versus 40.8% in 1995. The increase in effective tax rate was generally
attributable to
11
<PAGE>
losses in the PETsMART operation which did not generate state tax benefits. Net
income in 1996 was $3.0 million, or $0.37 per share, including the previously
mentioned charge, which reduced per share earnings by $0.44, compared to $7.6
million, or $0.94 per share in 1995. Excluding the charge, net income was $6.6
million or $0.81 per share.
1995 PCA FISCAL YEAR COMPARED WITH 1994 PCA FISCAL YEAR. Sales for the
Company's 1995 fiscal year were $144.7 million, flat as compared with sales of
$144.9 million for fiscal 1994. Consolidated sales in Kmart stores of $137.2
million were down slightly from $137.7 million in 1994. The decline was
attributable to the phase-out of traveling photography promotions in 1994. Sales
in Kmart permanent locations were up over 2% in fiscal 1995. The increase in
sales in Kmart permanent studios was attributable to a 7% increase in the
average purchase, partially offset by a 5% decline in customers photographed.
The Institutional division had sales of $6.6 million in 1995, a decline of $0.5
million from fiscal 1994. In the fourth quarter, Kmart sales increased by 2%,
with customers increasing by 3.7%. The PETsMART pilot program contributed sales
of $0.9 million in fiscal 1995.
Income from operations, as a percentage of sales, increased to 9.2%
from 5.4% in fiscal 1994. The improvement in margin reflects the elimination of
introductory advertising expenses incurred in 1994 to introduce the Company's
new digital imaging system. Additionally, the Company's production costs, as a
percentage of sales, decreased by 1% in fiscal 1995. Store commissions and
selling costs increased by 2.6%, principally from a full year's digital
equipment depreciation expense. General and administrative expenses increased by
3.7%. Benefit plans designated to reward employees for achieving higher
performance and profits and write-offs from approximately 180 Kmart store
closings contributed to the increase in general and administrative expenses. In
the fourth quarter, the Company accrued $0.6 million for the write-off of
property and other costs associated with the closing of its Canadian and Mexican
Kmart studios.
Income from continuing operations for 1995 increased to $7.6 million
from $4.4 million, or 74% in 1994. Net income, of $7.6 million, increased 59%
from the prior year. Earnings per share were $0.94 in 1995 as compared to $0.56
in fiscal 1994, an increase of 68%. Expenses related to the PETsMART pilot
program reduced net income by approximately $0.4 million in fiscal 1995.
The income tax provision for fiscal 1995 was $5.2 million versus a
provision of $3.1 million in fiscal 1994. This resulted in an effective tax rate
of 40.8% for fiscal 1995 versus 41.3% for fiscal 1994.
PROSPECTIVE INFORMATION
With the acquisition of American Studios, Inc., PCA operates the
largest number of professional retail portrait studios in North America. Pro
forma combined 1996 sales were approximately $264 million. On a combined basis,
U.S. Kmart studios were approximately 52% of pro forma combined sales,
international and domestic Wal-Mart sales were approximately 43%, and sales from
PCA's Institutional Division and the PETsMART pilot program were 5% of sales.
During 1997, the Company expects to serve over 5 million customers through more
than 2,000 permanent retail portrait studios and also traveling promotions. The
Company is geographically positioned to serve a dynamic and diverse, domestic
and international marketplace with studio locations throughout the United
States, Canada, Mexico, Puerto Rico, and South America.
As a result of the merger, the Company will execute five strategic
initiatives with the goal to improve its operating performance and marketing
presence in 1997:
12
<PAGE>
o Integrate and consolidate corporate administrative functions and field
operations of the merged companies.
o Leverage PCA's digital imaging system over an expanded Wal-Mart customer
base. To accomplish this, the Company plans to convert 600 Wal-Mart
non-digital permanent studios, previously operated by American Studios, to
PCA's digital imaging studio system, upgrade and adapt 250 American
Studios' digital studios to PCA's software and systems approach, and train
approximately 1,000 studio associates.
o Improve operating performance at the studio level with the closing of 415
underperforming studios which were not meeting the Company's profitability
objectives, and use certain studio assets from those studios in opening new
portrait studios.
o Maintain a diversified distribution channel by opening approximately 150
new Wal-Mart portrait studios, both domestically and internationally.
Future domestic growth in the Kmart channel will come from opening studios
in new Super Kmart Center stores. The Company will continue to evaluate its
pilot program with PETsMART, and does not plan significant studio expansion
in 1997.
o Support studio expansion plans with several marketing initiatives to
improve in-store awareness and to build longer-term customer relationships.
Due to the impact and cost of this integration and conversion, the
related employee training expenses, and the seasonal nature of our business, the
Company expects operating losses in the first half of 1997. The Company
anticipates profit margins, cash flows, and earnings will improve in the second
half as it realizes the benefits from the digitally enhanced Wal-Mart studios
(increased average customer purchase, greater customer traffic, and lower
product costs) and its marketing initiatives, along with higher sales volumes
historically experienced in the second half of the year.
Capital expenditures for 1997, primarily to finance these strategic
initiatives, are estimated to be approximately $12.0 million, and will be
financed from operations augmented by borrowing under the Company's credit
facility.
Note regarding Private Securities Litigation Reform Act: Statements
made by the Company which are not historical facts are forward looking
statements that involve risks and uncertainties. Actual results could differ
materially from those expressed or implied in forward looking statements. All
such forward looking statements are subject to the safe harbor created by the
Private Securities Litigation Reform Act of 1995. Important factors that could
cause financial performance to differ materially from past results and from
those expressed or implied in this document include, without limitation, the
risks of acquisition of businesses (including limited knowledge of the
businesses acquired and misrepresentations by sellers), new store openings,
availability of financing, competition, management's ability to manage growth,
loss of customers, and a variety of other factors.
LIQUIDITY AND CAPITAL RESOURCES
The Company replaced its existing credit facility on January 27, 1997,
with a credit facility (the "Tender Loan Facility") used to finance the tender
offer for American Studios, Inc. After completing the tender offer and merger of
American Studios into a subsidiary of the Company, the Company refinanced the
Tender Loan Facility on February 28, 1997, with a $65 million 5-year term loan
and a $25 million revolving line of credit with NationsBank acting as agent for
the loan syndication. On February 2, 1997, the Company had $1.5 million in cash
and
13
<PAGE>
cash equivalents and $58.7 million debt outstanding from its $75.8 million
Tender Loan Facility used to finance the purchase of 95% of American Studios'
common stock. The Company's principal sources of working capital are cash from
operations and its $25 million secured revolving line of credit from a bank. The
credit facility bears interest, at the Company's choice, at either (a) Prime
Rate plus 150 basis points, adjusted daily; or (b) the 30-, 60-, 90-, or 180-day
London Interbank Offered Rate ("LIBOR") plus 250 basis points, adjusted monthly,
bimonthly, quarterly, or semiannually, respectively.
During fiscal 1996, the Company had property additions of $13.4
million, principally for materials and equipment for the addition of new
permanent studios in Wal-Mart and PETsMART, the expansion and relocation of
portrait studios in Super Kmart Centers, and upgrading certain processing
equipment in our Matthews, North Carolina, laboratory. The purchase of American
Studios and certain assets of the two Canadian companies consumed over $60
million and was financed by the Tender Loan Facility and cash on hand. The
Company was able to fund its capital expenditures from operations, cash on hand,
and its revolving line of credit.
Shareholders' equity increased by $2.4 million to $33.6 million. Net
income was $3.0 million, after the $3.6 million after-tax charge for studio
closings, and dividends paid totaled $1.6 million. Exercised stock options and
the issuance of warrants to purchase common stock added $5.0 million to
shareholders' equity. The Company repurchased 309,242 shares of its common stock
in fiscal 1996 reducing shareholders' equity by $4.2 million.
The Company anticipates capital expenditures of $12.0 million for
fiscal 1997 to convert 600 Wal-Mart studios to the Company's digital imaging
system, to add approximately 150 studios servicing the preschool children's
market, and for general capital needs. The Company believes, based on its short-
and long-term business plans, that it has the ability to fund adequately from
operations, augmented by borrowings under its line of credit for seasonal credit
needs, its operating and capital expenditure needs for fiscal 1997, as well as
approximately $3.0 million for the acquisition of the remaining 5% of American
Studios' shares, and $6.0 million for the closing of approximately 415 portrait
studios. The Company generated cash flows from operations of $17.7 million,
$20.3 million, and $10.9 million in fiscal 1996, 1995, and 1994, respectively.
At March 31, 1997, there was $20.5 million available under the Company's
revolving credit facility. There are no scheduled repayments to the Company's
term note in fiscal 1997. Due to the seasonality of the Company's operations,
cash is generally consumed during the first fiscal quarter. During the remaining
fiscal quarters, operating activities usually generate cash.
INFLATION
Over the past few years, inflation has not had a significant impact on
the Company's financial condition or results of operations.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The information required by this item is submitted beginning on page
F-1 of this report.
ITEM 9. CHANGES IN AND DISAGREEMENT WITH ACCOUNTANTS ON
ACCOUNTING AND FINANCIAL DISCLOSURE MATTERS
None.
14
<PAGE>
PART III
ITEMS 10, 11, 12, AND 13.
The portion of Item 10 with respect to Directors of the Company and
Items 11, 12, and 13, Management Remuneration, Security Ownership of Certain
Beneficial Owners and Management, and Certain Relationships and Related
Transactions, respectively, have been omitted from this report since the Company
will file with the Securities and Exchange Commission a definitive proxy
statement pursuant to Rule 14a-3(b) of the Commission, not later than 120 days
after the close of the fiscal year ended February 2, 1997. That portion of Item
10 with respect to executive officers of the Company appears in Item 1 of Part I
hereof.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES,
AND REPORTS ON FORM 8-K
(a) The following documents are filed as part of this report:
1 & 2. The financial statements and schedules required by this Item
can be found as indexed on Page F-1 following page 19.
3. Exhibits shown by index beginning on page 16.
(b) Reports on Form 8-K.
None
15
<PAGE>
PCA INTERNATIONAL, INC.
INDEX TO EXHIBITS - [ITEM 14(A)(3)]
<TABLE>
<CAPTION>
INDEX NO. DESCRIPTION PAGE NO.
<S> <C> <C>
3(a) Restated Charter, as amended to date.
3(b) Bylaws of PCA International, Inc. as amended to date,
incorporated by reference to Exhibit 3.4 to the Company's
Quarterly Report on Form 10-Q, Commission File No. 0-8550, for
the quarter ended May 3, 1992.
4 Instruments defining the rights of security holders,
incorporated by reference to Exhibit 4 to the Company's
Quarterly Report on Form 10-Q, Commission File No. 0-8550, for
the quarter ended May 3, 1992.
10(a) License Agreement dated July 29, 1992, between Wal-Mart
Corporation and American Studios, Inc., incorporated by
reference to Exhibit 10.1 to American Studios, Inc. 1992 Form
S-1 (Registration No. 33-58958).
10(b) License Agreement dated May 10, 1996, between Kmart Corporation
and PCA International, Inc., incorporated by reference to
Exhibit 10(b) to the Company's Quarterly Report on Form 10-Q
for the quarter ended April 28, 1996.
10(c) Sales Contract dated August 11, 1994, between PCA
International, Inc. and Agfa Division of Miles, Inc.,
incorporated by reference to Exhibit 10(c) to the Company's
Amendment No. 1 on Form 10-Q/A to its Quarterly Report on Form
10-Q for the quarter ended July 31, 1994.
10(d)* The 1990 Non-Qualified Stock Option Plan, incorporated by
reference to Exhibit 4 to the Company's Registration Statement
on Form S-8 (Registration No. 33-36793).
10(e)* The 1992 Non-Qualified Stock Option Plan, as amended,
incorporated by reference to Exhibit 4 to the Company's
Registration Statement on Form S-8 (Registration No. 33-51458).
10(f) Loan Agreement dated January 27, 1997, between PCA
International, Inc., PCA Photo Corporation of Canada, Inc., PCA
Specialty Retail Photo Corporation, Inc., Photo Corporation of
America, PCA National, Inc., ASI Acquisition Corp., and
NationsBank, N.A., as Agent, incorporated by reference to the
Company's Schedule 14D-1 and Schedule 13-D, Amendment No. 3,
dated January 27, 1997.
10(g) Loan Agreement dated February 28, 1997, between PCA
International, Inc., PCA Photo Corporation of Canada, Inc., PCA
Specialty Retail Photo Corporation, Inc., Photo Corporation of
America, PCA National, Inc., ASI Acquisition Corp., and
NationsBank, N.A., as Agent.
10(h) Sales Contract dated September 1, 1993, between Agfa Division
of Miles, Inc., and American Studios, Inc., incorporated by
reference to Exhibit 10.93 to American Studios, Inc. Form 10-K
for fiscal 1993, Commission File No. 0-20510.
10(i) Merger Agreement dated December 17, 1996, between PCA
International, Inc., ASI Acquisition Corp., and American
Studios, Inc., incorporated by reference to the Company's Form
8-K dated January 23, 1997.
10(j) 1996 Omnibus Long-Term Compensation Plan, incorporated by
reference to Exhibit 10(j) to the Company's Quarterly Report on
Form 10-Q for the Quarter ended April 28, 1996.
16
<PAGE>
10(l)* Employment and Non-Compete Agreement dated December 17, 1996,
between Randy J. Bates and PCA International, Inc.
10(m)* Employment and Non-Compete Agreement dated December 17, 1996,
between Robert Kent Smith and PCA International, Inc.
10(n)* Employment and Non-Compete Agreement dated December 17, 1996,
between J. Robert Wren, Jr., and PCA International, Inc.
11 Computation of Primary and Fully Diluted Earnings per Common
Share.
21 Subsidiaries of the Registrant.
23 Consent of Independent Auditors.
27 Financial Data Schedule.
*Management contract or compensatory plan or arrangement
required to be filed as an exhibit.
17
<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.
PCA INTERNATIONAL, INC.
Date: April 18, 1997 By:/s/Joseph H. Reich
----------------------------------------
Joseph H. Reich
Chairman of the Board
Pursuant to the requirements of the Securities and 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.
SIGNATURE TITLE DATE
/s/Joseph H. Reich Chairman of the Board April 18, 1997
- - ----------------------------
Joseph H. Reich
/s/John Grosso President, Chief Executive April 18, 1997
- - ---------------------------- Officer and Director
John Grosso
/s/Eric H. Jeltrup Executive Vice President April 18, 1997
- - ---------------------------- Chief Technical Officer
Eric H. Jeltrup
/s/J. Robert Wren Jr. Executive Vice President April 18, 1997
- - ---------------------------- General Counsel
J. Robert Wren Jr.
18
<PAGE>
SIGNATURE TITLE DATE
/s/Bruce A. Fisher Senior Vice President April 18, 1997
- - ---------------------------- Chief Financial Officer
Bruce A. Fisher Secretary
/s/R. Michael Spencer Senior Vice President April 18, 1997
- - ---------------------------- Treasurer
R. Michael Spencer
/s/R. Stuart Dickson Director April 18, 1997
- - ----------------------------
R. Stuart Dickson
/s/Peter B. Foreman Director April 18, 1997
- - ----------------------------
Peter B. Foreman
/s/George Friedman Director April 18, 1997
- - ----------------------------
George Friedman
/s/Donald P. Greenberg Director April 18, 1997
- - ----------------------------
Donald P. Greenberg
/s/Charlotte H. Mason Director April 18, 1997
- - ----------------------------
Charlotte H. Mason
/s/Albert F. Sloan Director April 18, 1997
- - ----------------------------
Albert F. Sloan
/s/Stanley Tulchin Director April 18, 1997
- - ----------------------------
Stanley Tulchin
19
<PAGE>
PCA INTERNATIONAL, INC. AND SUBSIDIARIES
INDEX TO FINANCIAL STATEMENTS AND SCHEDULES
</TABLE>
<TABLE>
<CAPTION>
PAGE NO.
<S> <C>
FINANCIAL STATEMENTS:
INDEPENDENT AUDITORS' REPORT............................................................ F-2
CONSOLIDATED BALANCE SHEETS AT FEBRUARY 2, 1997 AND JANUARY 28, 1996.................... F-3-F-4
CONSOLIDATED STATEMENTS OF INCOME FOR FISCAL YEARS ENDED
FEBRUARY 2, 1997; JANUARY 28, 1996; AND JANUARY 29, 1995................................ F-5
CONSOLIDATED STATEMENTS OF CHANGES IN SHAREHOLDERS' EQUITY FOR FISCAL
YEARS ENDED FEBRUARY 2, 1997; JANUARY 28, 1996; AND JANUARY 29, 1995.................... F-6
CONSOLIDATED STATEMENTS OF CASH FLOWS FOR FISCAL YEARS ENDED
FEBRUARY 2, 1997; JANUARY 28, 1996; AND JANUARY 29, 1995............................... F-7
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS.............................................. F-8-F-21
SCHEDULES:
II VALUATION AND QUALIFYING ACCOUNTS FOR FISCAL YEARS ENDED
FEBRUARY 2, 1997; JANUARY 28, 1996; AND JANUARY 29, 1995................................ S-1
EXHIBITS:
11 COMPUTATION OF PRIMARY AND FULLY DILUTED EARNINGS PER COMMON SHARE
21 SUBSIDIARIES OF THE REGISTRANT
23 CONSENT OF INDEPENDENT AUDITORS
27 FINANCIAL DATA SCHEDULE
</TABLE>
FINANCIAL STATEMENTS, HISTORICAL INFORMATION, AND SCHEDULES OTHER THAN THOSE
LISTED ABOVE HAVE BEEN OMITTED FOR THE REASON THAT THEY ARE NOT REQUIRED OR
BECAUSE THE REQUIRED INFORMATION IS GIVEN IN THE FINANCIAL STATEMENTS OR NOTES
THERETO.
F-1
<PAGE>
INDEPENDENT AUDITORS' REPORT
The Board of Directors and Shareholders
PCA International, Inc.:
We have audited the consolidated financial statements of PCA International, Inc.
and subsidiaries as of February 2, 1997 and January 28, 1996 and for each of the
years in the three-year period ended February 2, 1997, as listed in the
accompanying index. In connection with our audits of the consolidated financial
statements, we also have audited the financial statement schedule as listed in
the accompanying index. These consolidated financial statements and financial
statement schedule are the responsibility of the Company's management. Our
responsibility is to express an opinion on these consolidated financial
statements and financial statement schedule based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present
fairly, in all material respects, the financial position of PCA International,
Inc. and subsidiaries as of February 2, 1997 and January 28, 1996, and the
results of their operations and their cash flows for each of the years in the
three-year period ended February 2, 1997, in conformity with generally accepted
accounting principles. Also in our opinion, the related financial statement
schedule, when considered in relation to the basic consolidated financial
statements taken as a whole, presents fairly, in all material respects, the
information set forth therein.
/s/KPMG Peat Marwick LLP
KPMG PEAT MARWICK LLP
Charlotte, North Carolina
March 19, 1997
F-2
<PAGE>
PCA INTERNATIONAL, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
ASSETS
FEBRUARY 2, JANUARY 28,
1997 1996
------------------- ------------------
<S> <C> <C>
CURRENT ASSETS:
CASH AND CASH EQUIVALENTS.............................................. $ 1,536,234 $ 3,914,513
ACCOUNTS RECEIVABLE (NET OF ALLOWANCE FOR DOUBTFUL ACCOUNTS OF $867,961 AND
$1,011,350):
DUE FROM LICENSOR STORES AND CUSTOMERS............................. 6,702,335 7,342,232
OTHER, INCLUDING EMPLOYEE ADVANCES................................. 602,349 677,334
INVENTORIES............................................................ 9,814,682 2,488,964
DEFERRED INCOME TAXES.................................................. 6,853,985 2,167,152
PREPAID EXPENSES....................................................... 1,490,918 513,685
------------------- ------------------
TOTAL CURRENT ASSETS............................................... 27,000,503 17,103,880
------------------- ------------------
PROPERTY:
LAND AND IMPROVEMENTS.................................................. 2,443,939 1,177,805
BUILDING AND IMPROVEMENTS.............................................. 12,883,962 7,730,952
PHOTOGRAPHIC AND SALES EQUIPMENT....................................... 61,902,588 44,183,975
PHOTOGRAPHIC FINISHING EQUIPMENT....................................... 18,660,080 12,501,537
FURNITURE AND EQUIPMENT................................................ 14,188,792 10,010,818
TRANSPORTATION EQUIPMENT............................................... 477,073 208,795
LEASEHOLD IMPROVEMENTS................................................. 17,935,712 11,508,810
CONSTRUCTION IN PROGRESS............................................... 1,120,788 946,478
------------------- ------------------
TOTAL.............................................................. 129,612,934 88,269,170
LESS: ACCUMULATED DEPRECIATION AND AMORTIZATION....................... 71,348,374 45,516,802
------------------- ------------------
PROPERTY, NET...................................................... 58,264,560 42,752,368
------------------- ------------------
INTANGIBLE ASSETS........................................................ 60,256,854 --
OTHER ASSETS............................................................. 1,139,305 28,228
------------------- ------------------
TOTAL ASSETS....................................................... $ 146,661,222 $ 59,884,476
=================== ==================
</TABLE>
SEE NOTES TO CONSOLIDATED FINANCIAL STATEMENTS.
F-3
<PAGE>
PCA INTERNATIONAL, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
LIABILITIES AND SHAREHOLDERS' EQUITY
<TABLE>
<CAPTION>
FEBRUARY 2, JANUARY 28,
1997 1996
------------------- ------------------
<S> <C> <C>
CURRENT LIABILITIES:
ACCOUNTS PAYABLE-TRADE...................................................... $ 19,799,067 $ 9,178,213
ACCRUED INSURANCE........................................................... 6,705,199 2,247,693
ACCRUED INCOME TAXES........................................................ 1,643,816 2,317,974
ACCRUED COMPENSATION........................................................ 5,924,407 3,779,849
OTHER ACCRUED LIABILITIES................................................... 15,399,563 3,457,973
------------------- ------------------
TOTAL CURRENT LIABILITIES................................................ 49,472,052 20,981,702
------------------- ------------------
LONG-TERM DEBT................................................................ 58,679,770 --
------------------- ------------------
DEFERRED INCOME TAXES......................................................... -- 4,562,570
------------------- ------------------
OTHER LIABILITIES............................................................. 4,609,510 3,105,595
------------------- ------------------
MINORITY INTERESTS............................................................ 259,150 --
------------------- ------------------
COMMITMENTS AND CONTINGENCIES
SHAREHOLDERS' EQUITY:
PREFERRED STOCK, $10.00 PAR VALUE (AUTHORIZED 2,000,000 SHARES;
OUTSTANDING - NONE)....................................................... -- --
COMMON STOCK, $0.20 PAR VALUE (AUTHORIZED 20,000,000 SHARES;
OUTSTANDING - 7,607,129 AND 7,482,071 SHARES)............................. 1,521,426 1,496,415
ADDITIONAL PAID-IN CAPITAL.................................................. 5,838,131 5,045,578
RETAINED EARNINGS........................................................... 26,334,992 24,918,709
CUMULATIVE FOREIGN CURRENCY TRANSLATION ADJUSTMENTS......................... (53,809) (226,093)
------------------- ------------------
TOTAL SHAREHOLDERS' EQUITY............................................... 33,640,740 31,234,609
------------------- ------------------
TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY............................... $ 146,661,222 $ 59,884,476
=================== ==================
</TABLE>
SEE NOTES TO CONSOLIDATED FINANCIAL STATEMENTS.
F-4
<PAGE>
PCA INTERNATIONAL, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
<TABLE>
<CAPTION>
FOR THE FISCAL YEARS ENDED
-------------------------------------------------------
FEBRUARY 2, January 28, January 29,
1997 1996 1995
--------------- ---------------- ----------------
<S> <C> <C> <C>
SALES.................................................................. $ 156,099,050 $ 144,714,535 $ 144,880,737
--------------- ---------------- ----------------
COSTS AND EXPENSES:
ADVERTISING AND PROMOTIONAL COSTS.................................. 16,163,273 14,784,803 20,083,522
COSTS OF PHOTOGRAPHIC SALES........................................ 52,558,425 47,635,178 49,981,831
STORE COMMISSIONS AND SELLING COSTS................................ 50,384,753 45,190,783 44,026,391
GENERAL AND ADMINISTRATIVE EXPENSES................................ 31,676,471 23,781,509 22,936,035
--------------- ---------------- ----------------
TOTAL COSTS AND EXPENSES....................................... 150,782,922 131,392,273 137,027,779
--------------- ---------------- ----------------
INCOME FROM OPERATIONS BEFORE INTEREST AND INCOME TAXES................
5,316,128 13,322,262 7,852,958
INTEREST EXPENSE NET............................................... 179,221 458,923 406,147
--------------- ---------------- ----------------
INCOME FROM OPERATIONS BEFORE INCOME TAXES............................. 5,136,907 12,863,339 7,446,811
INCOME TAX PROVISION................................................... 2,143,053 5,246,170 3,074,350
--------------- ---------------- ----------------
INCOME FROM CONTINUING OPERATIONS...................................... 2,993,854 7,617,169 4,372,461
DISCONTINUED OPERATIONS................................................ -- -- 412,406
--------------- ---------------- ----------------
NET INCOME............................................................. $ 2,993,854 $ 7,617,169 $ 4,784,867
=============== ================ ================
WEIGHTED AVERAGE NUMBER OF COMMON SHARES:
PRIMARY............................................................ 8,044,563 8,069,538 8,564,295
=============== ================ ================
FULLY DILUTED...................................................... 8,154,129 8,110,453 8,582,267
=============== ================ ================
PRIMARY AND FULLY DILUTED EARNINGS PER COMMON SHARE:
INCOME FROM CONTINUING OPERATIONS.................................. $ 0.37 $ 0.94 $ 0.51
INCOME ON DISPOSAL OF DISCONTINUED OPERATIONS...................... -- -- 0.05
--------------- ---------------- ----------------
=============== ================ ================
NET INCOME......................................................... $ 0.37 $ 0.94 $ 0.56
=============== ================ ================
CASH DIVIDENDS PER COMMON SHARE........................................ $ 0.21 $ 0.28 $ 0.28
=============== ================ ================
</TABLE>
SEE NOTES TO CONSOLIDATED FINANCIAL STATEMENTS.
F-5
<PAGE>
PCA INTERNATIONAL, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CHANGES IN SHAREHOLDERS' EQUITY
FOR THE FISCAL YEARS ENDED FEBRUARY 2, 1997; JANUARY 28, 1996; AND
JANUARY 29, 1995
<TABLE>
<CAPTION>
CUMULATIVE
FOREIGN
ADDITIONAL CURRENCY
COMMON STOCK PAID-IN RETAINED TRANSLATION UNEARNED
SHARES AMOUNT CAPITAL EARNINGS ADJUSTMENTS COMPENSATION
---------- ----------- ------------- ------------ ------------- -------------
<S> <C> <C> <C> <C> <C> <C>
BALANCE, JANUARY 30, 1994: 8,138,071 $1,627,615 $12,185,980 $16,940,572 $(123,793) $(334,021)
NET INCOME................ 4,784,867
EXERCISE OF STOCK OPTIONS. 22,100 4,420 87,754
DIVIDENDS................. (2,281,404)
COMPENSATORY STOCK OPTIONS 231,759
CANCELED COMPENSATORY
STOCK OPTIONS........... (69,665) 69,665
FOREIGN CURRENCY
TRANSLATION (91,294)
ADJUSTMENT..............
---------- ----------- ------------- ------------ ----------- -- -------------
BALANCE, JANUARY 29, 1995: 8,160,171 1,632,035 12,204,069 19,444,035 (215,087) (32,597)
NET INCOME................ 7,617,169
EXERCISE OF STOCK OPTIONS. 66,200 13,240 415,533
DIVIDENDS................. (2,142,495)
ACQUISITION OF COMPANY
STOCK................... (744,300) (148,860) (7,565,092)
COMPENSATORY STOCK OPTIONS 23,665
CANCELED COMPENSATORY
STOCK OPTIONS........... (8,932) 8,932
FOREIGN CURRENCY
TRANSLATION (11,006)
ADJUSTMENT..............
---------- ----------- ------------- ------------ ----------- -- -------------
BALANCE, JANUARY 28, 1996: 7,482,071 1,496,415 5,045,578 24,918,709 (226,093) 0
NET INCOME................ 2,993,854
EXERCISE OF STOCK OPTIONS. 434,300 86,860 4,372,329
DIVIDENDS................. (1,577,571)
ACQUISITION OF COMPANY
STOCK.................. .(309,242) (61,849) (4,128,776)
ISSUANCE OF WARRANTS TO
PURCHASE COMMON STOCK..... 549,000
FOREIGN CURRENCY
TRANSLATION 172,284
ADJUSTMENT..............
---------- ----------- ------------- ------------ ------------- -------------
BALANCE, FEBRUARY 2, 1997: 7,607,129 $1,521,426 $5,838,131 $26,334,992 $(53,809) $ 0
---------- ----------- ------------- ------------ ------------- -------------
</TABLE>
SEE NOTES TO CONSOLIDATED FINANCIAL STATEMENTS.
F-6
<PAGE>
PCA INTERNATIONAL, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
FOR THE FISCAL YEARS ENDED
-----------------------------------------------------
FEBRUARY 2, January 28, January 29,
1997 1996 1995
-------------- ---------------- ----------------
<S> <C> <C> <C>
OPERATING ACTIVITIES:
NET INCOME............................................................. $ 2,993,854 $ 7,617,169 $ 4,784,867
ADJUSTMENTS TO RECONCILE NET INCOME TO NET CASH
PROVIDED FROM OPERATING ACTIVITIES:
DEPRECIATION....................................................... 9,498,315 8,489,754 7,135,629
(DECREASE) INCREASE IN ALLOWANCE FOR DOUBTFUL ACCOUNTS............. (167,303) 165,140 189,479
PROVISION FOR DEFERRED INCOME TAXES................................ (1,421,999) 1,264,649 1,576,386
LOSS ON DISPOSAL OF PROPERTY....................................... 3,287,772 776,592 222,526
COMPENSATORY STOCK OPTION EXPENSE.................................. -- 23,665 231,758
(DECREASE) INCREASE IN OTHER LIABILITIES........................... (375,932) 177,572 105,915
INCREASE IN OTHER NONCURRENT ASSETS................................ (156) (15,659) (5,000)
CHANGES IN OPERATING ASSETS AND LIABILITIES:
DECREASE(INCREASE) IN ACCOUNTS RECEIVABLE......................... 1,254,260 (530,433) (3,362,361)
(INCREASE) DECREASE IN INVENTORIES................................ (4,489,573) 755,065 1,654,774
DECREASE IN DEFERRED COSTS APPLICABLE TO UNSOLD PORTRAITS......... -- -- 1,410,953
(INCREASE) DECREASE IN PREPAID EXPENSES........................... (178,505) 122,987 (78,195)
INCREASE (DECREASE) IN ACCOUNTS PAYABLE........................... 2,596,851 (2,246,715) (2,797,599)
INCREASE (DECREASE) IN ACCRUED EXPENSES........................... 4,679,050 3,686,168 (73,317)
-------------- ---------------- ----------------
NET CASH PROVIDED FROM OPERATING ACTIVITIES............................ 17,676,634 20,285,954 10,995,815
-------------- ---------------- ----------------
INVESTING ACTIVITIES:
PURCHASES OF PROPERTY.................................................. (13,423,544) (6,309,168) (14,697,706)
PROCEEDS FROM SALES OF FIXED ASSETS.................................... 10,151 47,311 72,554
PURCHASE OF CANADIAN ASSETS............................................ (1,201,213) -- --
PURCHASE OF AMERICAN STUDIOS, INC...................................... (52,689,671) -- --
-------------- ---------------- ----------------
NET CASH USED IN INVESTING ACTIVITIES.................................. (67,304,277) (6,261,857) (14,625,152)
-------------- ---------------- ----------------
FINANCING ACTIVITIES:
INCREASE(DECREASE) IN BORROWINGS....................................... 48,334,816 (974,215) 974,215
EXERCISE OF STOCK OPTIONS.............................................. 4,459,189 428,773 92,174
ACQUISITION OF COMPANY STOCK........................................... (4,190,625) (7,713,952) --
CASH DIVIDENDS......................................................... (1,577,571) (2,142,495) (2,281,404)
-------------- ---------------- ----------------
NET CASH PROVIDED FROM (USED IN) FINANCING ACTIVITIES................
47,025,809 (10,401,889) (1,215,015)
-------------- ---------------- ----------------
EFFECT OF EXCHANGE RATE CHANGES ON CASH................................ 223,555 (19,454) 37,215
-------------- ---------------- ----------------
(DECREASE) INCREASE IN CASH AND CASH EQUIVALENTS........................... (2,378,279) 3,602,754 (4,807,137)
CASH AND CASH EQUIVALENTS AT BEGINNING OF PERIOD........................... 3,914,513 311,759 5,118,896
-------------- ---------------- ----------------
CASH AND CASH EQUIVALENTS AT END OF PERIOD................................. $ 1,536,234 $ 3,914,513 $ 311,759
============== ================ ================
SUPPLEMENTAL CASH FLOW INFORMATION:
CASH FLOW DATA:
INTEREST PAID......................................................... $ 173,644 $ 364,041 $ 431,766
============== ================ ================
INCOME TAXES PAID..................................................... $ 3,160,160 $ 3,059,180 $ 800,410
============== ================ ================
SCHEDULE OF NONCASH FINANCING ACTIVITIES:
STOCK OPTIONS CANCELED AND UNEARNED COMPENSATION CREDITED............. $ -- $ 8,932 $ 69,665
============== ================ ================
WARRANTS ISSUED TO PURCHASE COMMON STOCK.............................. $ 549,000 $ -- $ --
============== ================ ================
</TABLE>
SEE NOTES TO CONSOLIDATED FINANCIAL STATEMENTS.
F-7
<PAGE>
PCA INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED FEBRUARY 2, 1997;
JANUARY 28, 1996; AND JANUARY 29, 1995
1. SIGNIFICANT ACCOUNTING POLICIES:
PRINCIPLES OF CONSOLIDATION AND CONCENTRATIONS OF CREDIT RISK:
The consolidated financial statements include the accounts of PCA
International, Inc. and its subsidiaries (the "Company"), all of which
are wholly owned. All material intercompany balances and transactions
have been eliminated in consolidation. The Company's operations in
Kmart stores accounted for approximately 87.2%, 94.8%, and 95.1% of
consolidated sales during the fiscal years ended February 2, 1997;
January 28, 1996; and January 29, 1995, respectively. The license
agreement with Kmart Corporation was revised and renewed on May 10,
1996. The license is for the period through May 9, 2001 and may be
terminated by either party upon 180-days' notice. The Company operates
its U.S. studios in Wal-Mart stores under the terms of the license
agreement between Wal-Mart and American Studios, Inc. (see note 2).
Wal-Mart may amend or terminate this agreement at any time at its sole
discretion. The loss of the license to do business in Kmart or Wal-Mart
stores would have a materially adverse effect on the Company. Kmart's
or Wal-Mart's closing of a significant number of discount stores could
have a material impact on the Company's revenues and could result in a
write-off of leasehold improvements and furniture and equipment in the
affected locations. No estimate can be made of the impact to earnings
if Kmart or Wal-Mart should close a significant number of locations.
FISCAL YEAR:
The Company's fiscal year ends on the Sunday nearest the end of
January. The fiscal year ended February 2, 1997 was a 53-week year. The
fiscal years ended January 28, 1996 and January 29, 1995 were 52-week
years. The Company's fiscal year that will end February 1, 1998, will
be 52 weeks.
FOREIGN CURRENCY TRANSACTIONS:
Gains and losses on foreign currency transactions are included in the
determination of net income for the period. The amount of such gain and
(loss) was $10,940; $19,474; and $(100,452) for the fiscal years ended
February 2, 1997; January 28, 1996; and January 29, 1995, respectively.
SUPPLEMENTAL CASH FLOW INFORMATION:
The Company considers all highly liquid investments with an original
maturity of three months or less when purchased to be cash equivalents.
INVENTORIES:
Inventories are valued at the lower of cost or market, cost being
determined on the first-in, first-out basis.
PROPERTY AND DEPRECIATION:
Property is recorded at cost. Maintenance and repairs are charged to
expense as incurred; property additions, renewals, and improvements are
capitalized. When property is retired or
F-8
<PAGE>
PCA INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED FEBRUARY 2, 1997;
JANUARY 28, 1996; AND JANUARY 29, 1995
1. SIGNIFICANT ACCOUNTING POLICIES (CONTINUED):
otherwise disposed of, the related costs and accumulated depreciation
are removed from the respective accounts and any gain or loss is
credited or charged to income. A summary of the estimated useful lives
used in computing depreciation and amortization, principally on the
straight-line method, is as follows:
LAND IMPROVEMENTS........................ 10 to 30 years
BUILDING AND IMPROVEMENTS................ 10 to 55 years
LEASEHOLD IMPROVEMENTS................... 3 to 10 years
PHOTOGRAPHIC AND SALES EQUIPMENT......... 3 to 13 years
PHOTOGRAPHIC FINISHING EQUIPMENT......... 3 to 15 years
FURNITURE AND EQUIPMENT.................. 3 to 10 years
TRANSPORTATION EQUIPMENT................. 3 years
INTANGIBLE ASSETS:
Substantially all intangible assets are amortized over 35 years by the
straight-line method. The recoverability of intangible assets is
evaluated by the Company on the basis of undiscounted expected future
cash flows from the acquired operations before interest for the
remaining amortization period. If impairment exists, the carrying
amount of the intangible assets is reduced based on the estimated
shortfall of cash flows.
PHOTOGRAPHIC SALES AND DEFERRED COSTS:
Digital photographic sales are recorded when portraits are purchased.
All sales in fiscal 1996, 1995, and the fourth quarter of fiscal 1994
were digital photographic sales. In the first three quarters of 1994,
digital sales were recorded when the portraits were produced. The
change, beginning in the fourth quarter of fiscal 1994, did not
significantly affect the Company's results of operations.
Traditional photographic sales are recorded when portraits are
delivered to studios and sold to customers. Costs relating to portraits
processed, or in process, but not recorded as sales prior to the fiscal
year-end, are deferred. Substantially all portraits are subsequently
delivered and offered for sale to the customer within three weeks.
INCOME TAXES:
Income taxes are accounted for under the asset and liability method.
Deferred tax assets and liabilities are recognized for the future tax
consequences attributable to differences between the financial
statement carrying amounts of existing assets and liabilities and their
respective tax bases and operating loss and tax credit carryforwards.
Deferred tax assets and liabilities are measured using enacted tax
rates expected to apply to taxable income in the years in which those
temporary differences are expected to be recovered or settled. The
effect on deferred tax assets
F-9
<PAGE>
PCA INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED FEBRUARY 2, 1997;
JANUARY 28, 1996; AND JANUARY 29, 1995
1. SIGNIFICANT ACCOUNTING POLICIES (CONTINUED):
and liabilities of a change in tax rates is recognized in income in the
period that includes the enactment date.
POSTRETIREMENT BENEFITS:
The Company sponsors a postretirement health care plan for retirees and
certain current employees. The Company measures the cost of its
obligations based on actuarial assumptions. The cost of this program is
not funded.
FAIR VALUE OF FINANCIAL INSTRUMENTS:
The Company is required to disclose in its consolidated financial
statements the fair value of all financial instruments, including
assets and liabilities both on- and off-balance sheet, for which it is
practicable to estimate such fair value. Fair value methods,
assumptions, and estimates for the Company are as follows:
o Cash and cash equivalents, accounts receivable, prepaid
expenses, short-term borrowings, accounts payable-trade, and
accrued expenses--the carrying amount approximates fair value
because of the short maturity of these instruments.
o Non-current liabilities--the carrying amount approximates fair
value because such liabilities consist primarily of actuarially
determined postretirement liabilities using current market rate
assumptions and long-term debt at market rates currently offered.
COSTS AND EXPENSES:
Advertising and promotional costs consist of the direct mail,
television broadcasting, and print media costs, and the payroll and
related taxes, benefits and other costs for employees in the
adult/family market who directly promote and acquire customers, as well
as the cost of church directories.
Costs of photographic sales are all the direct and indirect portrait
production costs: salaries, commissions, payroll taxes, related
benefits and traveling costs for all photography personnel, as well as
the recruiting and training costs of these employees. The costs of
film, accessories, photography equipment depreciation and maintenance,
supplies, and distribution are also included in this category.
Store commissions and selling costs include the commissions paid to
each chain based on a percentage of net sales, salaries, commissions,
payroll taxes, related benefits and travel costs for all sales
personnel, and recruiting and training, sales supplies, sales equipment
depreciation, and related distribution costs.
F-10
<PAGE>
PCA INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED FEBRUARY 2, 1997;
JANUARY 28, 1996; AND JANUARY 29, 1995
1. SIGNIFICANT ACCOUNTING POLICIES (CONTINUED):
RESEARCH AND DEVELOPMENT:
The Company spent $1,321,000; $1,033,000; and $748,000 on research and
development activities during the years ended February 2, 1997; January
28, 1996; and January 29, 1995, respectively. Such costs are charged to
operations as incurred.
STOCK OPTION PLAN:
Prior to January 28, 1996, the Company accounted for its stock option
plan in accordance with the provisions of Accounting Principles Board
(APB) Opinion No. 25, ACCOUNTING FOR STOCK ISSUED TO EMPLOYEES, and
related interpretations. As such, compensation expense would be
recorded on the date of grant only if the current market price of the
underlying stock exceeded the exercise price. On January 29, 1996, the
Company adopted Statement of Financial Accounting Standards (SFAS) No.
123, ACCOUNTING FOR STOCK-BASED COMPENSATION, which permits entities to
recognize as expense over the vesting period the fair value of all
stock-based awards on the date of grant. Alternatively, SFAS No. 123
allows entities to continue to apply the provisions of APB Opinion No.
25 and provide pro forma net income and pro forma earnings per share
disclosures for employee stock option grants made in 1995 and future
years as if the fair-value-based method defined in SFAS No. 123 had
been applied. The Company has elected to continue to apply provisions
for APB Opinion No. 25 and provide the pro forma disclosure provisions
of SFAS No. 123.
EARNINGS PER SHARE:
Earnings per share are determined by dividing income from continuing
operations and net income by the weighted average number of common
shares and common equivalent shares outstanding during the period.
USE OF ESTIMATES:
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates
and assumptions that affect the reported amounts of assets and
liabilities at the date of the financial statements and the reported
amounts of revenue and expenses during the reporting period.
Actual results could differ from those estimates.
2. ACQUISITION:
On January 27, 1997, PCA acquired 95% of the outstanding common stock
of American Studios, Inc. (ASI) for $2.50 a share, or $50,833,770. In
addition, the Company incurred transaction costs of $1,855,901,
resulting in an aggregate purchase price of $52,689,671. ASI is based
in Charlotte, North Carolina, and is engaged in the sale of
photographic color portraits of children, adults, and families. The
acquisition has been accounted for by the purchase method at February
2, 1997. Since the acquisition was accounted for at February 2, 1997,
the results of operations of
F-11
<PAGE>
PCA INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED FEBRUARY 2, 1997;
JANUARY 28, 1996; AND JANUARY 29, 1995
2. ACQUISITION (CONTINUED):
ASI have not been included in PCA's consolidated financial statements.
The excess of the purchase price over the fair value of the net
identifiable assets acquired of $59,134,104 has been recorded as an
intangible asset and is being amortized on a straight-line basis over
35 years.
The following unaudited pro forma financial information presents the
combined results of operations of the Company and ASI as if the
acquisition had occurred as of the beginning of fiscal 1996 and 1995,
after giving effect to certain adjustments, including amortization of
intangible assets, additional depreciation expense, increased interest
expense on debt related to the acquisition, acquisition related costs,
and related income tax effects. The pro forma financial information
does not necessarily reflect the results of operations that would have
occurred had the Company and ASI constituted a single entity during
such periods.
FOR THE FISCAL YEARS ENDED
--------------------------------------
FEBRUARY 2, 1997 January 28, 1996
(UNAUDITED) (Unaudited)
-------------- --------------------
Net sales.......... $ 263,974,050 $ 246,614,535
============== =============
Net loss........... $ (855,898) $ (1,168,645)
============== =============
Loss per share..... $ (0.11) $ (0.14)
============== =============
During fiscal 1996, the Company also purchased certain assets of two
Canadian companies for $1.2 million. The effect of this acquisition is
not material to the results of operations of the Company. Such
acquisitions were accounted for by the purchase method.
3. DEBT:
The Company signed a new loan agreement on January 27, 1997 with
NationsBank of North Carolina, N. A. ("NationsBank") for a $75.8
million senior tender facility which includes a $25 million revolving
credit facility. The senior tender facility matures the earlier of June
30, 1997 or the closing of the merger between the Company's wholly
owned subsidiary, ASI Acquisition Corporation, and American Studios,
Inc. The revolving credit facility shall be due and payable in full 5
years from closing. Interest on the senior tender facility is computed
at a rate equal to the Alternate Base Rate (defined as the higher of
(i) the NationsBank Prime Rate and (ii) the Federal Funds rate plus
.50%) plus 1%. The revolving credit facility shall bear interest at a
rate equal to LIBOR plus 3% or the Alternate Base Rate (as defined
above) plus 2%.
On February 28, 1997, the senior tender facility was replaced by senior
secured permanent facilities of $90 million, which include the $25
million revolving credit facility. The senior term loan of $65 million
and the revolving credit facility bear interest at a rate equal to
LIBOR
F-12
<PAGE>
PCA INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED FEBRUARY 2, 1997;
JANUARY 28, 1996; AND JANUARY 29, 1995
3. DEBT (CONTINUED):
plus an applicable margin or an Alternate Base Rate plus an applicable
margin. The applicable margin is based on an EBITDA ratio and ranges
from .75% to 2.5%. Aggregate annual maturities for each of the five
fiscal years subsequent to February 2, 1997 are as follows: $0 in 1997,
$10 million in 1998, $15 million in 1999, $20 million in 2000, and $20
million in 2001.
Borrowings under the agreements are secured, and minimum levels of
adjusted earnings, tangible net worth, an interest coverage ratio, and
a fixed charge ratio must be maintained in addition to other financial
covenants. The amount of debt is reduced by 150,000 stock warrants
issued to NationsBank to purchase common stock of the Company. The
warrants expire January 27, 2002. The amount available under the
revolving credit facility is reduced by outstanding letters of credit.
As of February 2, 1997, the Company had letters of credit of $3,560,750
for its workers' compensation insurance. As of January 28, 1996, there
were outstanding letters of credit of $350,000. As of February 2, 1997,
debt outstanding related to the senior tender facility is $57,833,770.
The components of net interest expense (income) were:
FOR THE FISCAL YEARS ENDED
--------------------------------------------
FEBRUARY 2, January 28, January 29,
1997 1996 1995
-------------- -------------- --------------
INTEREST INCOME........ $ (225,748) $ (123,865) $ (156,424)
INTEREST EXPENSE....... 404,969 582,788 562,571
-------------- -------------- --------------
NET.................... $ 179,221 $ 458,923 $ 406,147
============== ============== ==============
4. INCOME TAXES:
PCA International, Inc. and its domestic subsidiaries file a
consolidated federal income tax return. The components of income tax
expense, attributable to income from continuing operations, are as
follows:
FOR THE FISCAL YEARS ENDED
--------------------------------------------
FEBRUARY 2, January 28, January 29,
1997 1996 1995
-------------- -------------- --------------
CURRENT:
FEDERAL.......... $2,824,740 $2,888,851 $1,457,788
STATE............ 957,859 1,082,736 361,835
-------------- -------------- --------------
3,782,599 3,971,587 1,819,623
-------------- -------------- --------------
DEFERRED:
FEDERAL.......... (1,270,094) 1,178,154 919,088
STATE............ (369,452) 96,429 335,639
-------------- -------------- --------------
(1,639,546) 1,274,583 1,254,727
-------------- -------------- --------------
TOTAL PROVISION....... $2,143,053 $5,246,170 $3,074,350
============== ============== ==============
F-13
<PAGE>
PCA INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED FEBRUARY 2, 1997;
JANUARY 28, 1996; AND JANUARY 29, 1995
4. INCOME TAXES (CONTINUED):
A reconciliation of the amount computed by applying the statutory
federal income tax rate to income from continuing operations to the
consolidated income tax provision follows:
<TABLE>
<CAPTION>
FOR THE FISCAL YEARS ENDED
---------------------------------------------------------
FEBRUARY 2, January 28, January 29,
1997 1996 1995
--------------- ------------- ---------------
<S> <C> <C> <C>
TAX EXPENSE AT STATUTORY
FEDERAL RATES..................... $1,746,548 $4,402,166 $2,531,916
TAX EFFECT OF EXPENSES
NOT DEDUCTIBLE PURSUANT TO
TAX REFORM ACT OF 1986............ 71,011 65,338 88,885
STATE INCOME TAXES, NET
OF FEDERAL INCOME TAX
BENEFIT........................... 388,349 766,458 460,333
TAX EFFECTS RELATED TO
FOREIGN SUBSIDIARY................ 14,200 13,203 6,297
OTHER.................................. (77,055) (995) (13,081)
--------------- ------------- ---------------
TOTAL PROVISION........................ $2,143,053 $5,246,170 $3,074,350
=============== ============= ===============
</TABLE>
F-14
<PAGE>
PCA INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED FEBRUARY 2, 1997;
JANUARY 28, 1996; AND JANUARY 29, 1995
4. INCOME TAXES (CONTINUED):
The tax effects of temporary differences that give rise to significant
portions of the deferred tax assets and deferred tax liabilities at
February 2, 1997 and January 28, 1996 are presented below:
<TABLE>
<CAPTION>
FEBRUARY 2, January 28,
1997 1996
---------------- --------------
<S> <C> <C>
DEFERRED TAX ASSETS:
CURRENT:
ACCOUNTS RECEIVABLE, PRINCIPALLY DUE TO ALLOWANCE FOR
DOUBTFUL ACCOUNTS........................................... $ 346,360 $ 403,553
INVENTORY, PRINCIPALLY DUE TO OBSOLESCENCE RESERVE............ 600,155 147,136
LIFE AND HEALTH, PRINCIPALLY DUE TO ADOPTION OF SFAS NO. 106.. 153,696 152,753
STOCK OPTIONS, PRINCIPALLY DUE TO COMPENSATION ELEMENT........ 139,806 259,978
WORKERS' COMPENSATION......................................... 2,414,430 743,792
RESERVES, PRINCIPALLY DUE TO ACCRUAL FOR FINANCIAL
REPORTING PURPOSES.......................................... 942,945 459,940
STUDIO CLOSURE COSTS, PRINCIPALLY DUE TO ACCRUAL FOR
FINANCIAL REPORTING PURPOSES............................... 2,396,400 --
---------------- --------------
GROSS CURRENT DEFERRED TAX ASSETS............................. 6,993,792 2,167,152
NONCURRENT:
ALTERNATIVE MINIMUM TAX AND OTHER TAX CREDITS................. 875,538 --
NET OPERATING LOSS CARRYFORWARD............................... 2,770,246 --
LIFE AND HEALTH, PRINCIPALLY DUE TO ADOPTION OF SFAS NO. 106.. 1,154,131 1,240,375
OTHER......................................................... 498,892 --
---------------- --------------
GROSS NONCURRENT DEFERRED TAX ASSETS.......................... 5,298,807 1,240,375
---------------- --------------
GROSS DEFERRED TAX ASSETS..................................... 12,292,599 3,407,527
---------------- --------------
DEFERRED TAX LIABILITIES:
NONCURRENT:
PLANT AND EQUIPMENT, PRINCIPALLY DUE TO DIFFERENCES IN
DEPRECIATION................................................ (5,296,956) (5,802,945)
---------------- --------------
NET DEFERRED TAX ASSETS (LIABILITIES).............................. $ 6,995,643 $ (2,395,418)
================ ==============
</TABLE>
In assessing the ability to realize deferred tax assets, management
considers whether it is more likely than not that some portion or all
of the deferred tax assets will not be realized. The ultimate
realization of deferred tax assets is dependent upon the generation of
future taxable income during the periods in which those temporary
differences become deductible. Management considers the scheduled
reversal of deferred tax liabilities, projected future taxable income,
and tax planning strategies in making this assessment.
F-15
<PAGE>
PCA INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED FEBRUARY 2, 1997;
JANUARY 28, 1996; AND JANUARY 29, 1995
4. INCOME TAXES (CONTINUED):
Based upon the level of historical taxable income and projections for
future taxable income over the periods which the deferred tax assets
are deductible, management believes it is more likely than not the
Company will realize the benefits of these deductible differences that
were available at February 2, 1997.
At February 2, 1997, the Company has federal net operating loss
carryforwards of approximately $6,422,000 expiring in various amounts
beginning 2010; however, net operating loss carryforwards may be
subject to restriction under Section 382 and the separate return
limitation year rules of the Internal Revenue Code due to the
acquisition of ASI. Additionally, the Company has minimum tax credit
carryforwards with indefinite expiration of approximately $786,000.
5. OTHER ACCRUED LIABILITIES:
<TABLE>
<CAPTION>
FEBRUARY 2, January 28,
1997 1996
---------------- ---------------
<S> <C> <C>
COSTS ACCRUED TO COMPLETE CHURCH
DIRECTORIES................................... $ 992,786 $ 948,671
ACCRUED TAXES OTHER THAN INCOME................... 2,377,105 584,170
ACCRUED EXPENSES.................................. 8,686,672 1,925,132
COSTS TO CLOSE 415 KMART PORTRAIT STUDIOS......... 3,343,000 --
---------------- ---------------
TOTAL............................................. $ 15,399,563 $3,457,973
================ ===============
</TABLE>
6. EMPLOYEE BENEFITS:
The Company has a profit sharing plan for all employees who meet
certain eligibility requirements with annual contributions by the
Company as directed by the Board of Directors. For fiscal 1996, the
contribution was equal to 10% of consolidated income before income
taxes and profit sharing less expenses associated with the plan.
Company contributions, net of forfeitures, are as follows:
<TABLE>
<CAPTION>
FOR THE FISCAL YEARS ENDED
-------------------------------------------------------
FEBRUARY 2, January 28, January 29,
1997 1996 1995
---------------- --------------- ----------------
<S> <C> <C> <C>
CONTRIBUTIONS.................... $421,000 $1,429,000 $904,000
FORFEITURES...................... (212,000) (172,000) (253,000)
================ =============== ================
NET CONTRIBUTION................. $209,000 $1,257,000 $651,000
================ =============== ================
</TABLE>
F-16
<PAGE>
PCA INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED FEBRUARY 2, 1997;
JANUARY 28, 1996; AND JANUARY 29, 1995
6. EMPLOYEE BENEFITS (CONTINUED):
The Company provides health and life insurance benefits to those
persons already retired on February 1, 1992 and to those employees who
were 55 years of age with 5 years of service on February 1, 1992. The
plan provides for annual benefits of $2,000 (single) or $4,000
(married) toward the purchase of supplemental health care coverage. An
eligible employee who retires after February 1, 1992 can receive
benefits after attaining the age of 65.
The weighted average discount rate used in determining the accumulated
postretirement benefit obligation was 7% at February 2, 1997; January
28, 1996; and January 29, 1995. There were no assumptions for trends
since the Company's obligation was limited to the dollar amounts
previously stated.
The Company's net periodic cost of this program, not included in the
accumulated obligation, including service cost and interest related
cost for the most recent three years is:
<TABLE>
<CAPTION>
FOR THE FISCAL YEARS ENDED
-----------------------------------------------------------
FEBRUARY 2, January 28, January 29,
1997 1996 1995
--------------- ------------- -------------
<S> <C> <C> <C>
SERVICE COST............................ $ 61,000 $ 58,000 $ 83,000
INTEREST RELATED COST................... 192,000 192,000 192,000
--------------- ------------- -------------
NET PERIODIC COST....................... $253,000 $250,000 $275,000
=============== ============= =============
</TABLE>
On February 2, 1997, the accrued cost was $2.9 million, of which
$160,000 was classified as current liabilities.
7. COMMITMENTS AND CONTINGENCIES:
The Company is obligated under operating leases with initial or
remaining noncancelable terms in excess of one year which provide, in
some instances, for the payment of taxes, insurance, and maintenance.
The future minimum rental payments are not material.
Certain of the Company's operating lease agreements have renewal
options. Rental expense for all operating leases was $237,923;
$249,444; and $254,494 for the fiscal years ended February 2, 1997;
January 28, 1996; and January 29, 1995, respectively.
The Company is involved in various claims and legal actions arising in
the ordinary course of business. In the opinion of management, the
ultimate disposition of these matters will not have a materially
adverse effect on the Company's consolidated financial position,
results of operations, or liquidity.
F-17
<PAGE>
PCA INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED FEBRUARY 2, 1997;
JANUARY 28, 1996; AND JANUARY 29, 1995
8. STOCK OPTIONS:
On March 6, 1996, the Board of Directors adopted the 1996 Omnibus
Long-Term Compensation Plan (the "1996 Plan") providing for the
issuance of up to 811,550 shares of the Company's common stock (the
same number that had been available for issuance under the Company's
1990 Non-Qualified Stock Option Plan (the "1990 Plan") and the 1992
Non-Qualified Stock Option Plan (the "1992 Plan")). The 1996 Plan
replaced and superseded the 1990 Plan and the 1992 Plan, except with
respect to options and shares of common stock issued and outstanding
under those plans which will continue to be governed by the terms of
such plans. The 1996 Plan is designed to give the Board of Directors
flexibility to adapt the long-term incentive compensation of key
employees to changing business conditions through a variety of
long-term incentive awards and was approved by the Company's
shareholders at the 1996 Annual Meeting on May 22, 1996. Under the 1996
Plan, the Compensation Committee may approve the grant of employee
Stock Options, Stock Appreciation Rights (SARs), Performance Restricted
Stock Awards, Performance Awards, and performance units ("Awards") to
senior level employees of the Company. In addition, the 1996 Plan
provides for the grant of stock options to nonemployee directors upon
their election to the Board and allows nonemployee directors to elect
to take their compensation as directors in the form of options. The
exercise price for stock options and stock Awards may not be less than
the fair market value of the common stock on the date of grant. As of
February 2, 1997, options for 342,850 shares were available for future
grant under the 1996 Plan, and 200,000 shares were exercisable and
out-of-the money.
The 1990 Plan provides for the grant of non-qualified stock options to
key employees and nonemployee directors. As of February 2, 1997;
January 28, 1996; and January 29, 1995, options for 588,450; 403,350;
and 322,550 shares, respectively, were exercisable and in-the-money.
The 1992 Plan provides for the grant of non-qualified stock options to
key employees and nonemployee directors of the Company. As of February
2, 1997; January 28, 1996; and January 29, 1995, options for 297,900;
0; and 0 shares, respectively, were exercisable and in-the-money.
The Company applies APB Opinion No. 25 in accounting for its stock
option plans and, accordingly, no compensation cost has been recognized
for its stock options in the financial statements. Had the Company
determined compensation cost based on the fair value at the grant date
for its stock options under SFAS No. 123, the Company's net income
would have been reduced to the pro forma amounts indicated below:
FOR THE FISCAL YEARS ENDED
----------------------------
FEBRUARY 2, January 28,
1997 1996
------------- -------------
Net income As reported $2,993,854 $7,617,169
============= =============
Pro forma $2,374,079 $7,556,540
============= =============
Earnings per share As reported $0.37 $0.94
============= =============
Pro forma $0.29 $0.93
============= =============
F-18
<PAGE>
PCA INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED FEBRUARY 2, 1997;
JANUARY 28, 1996; AND JANUARY 29, 1995
8. STOCK OPTIONS (CONTINUED):
Pro forma net income reflects only options granted in fiscal 1996 and
1995. Therefore, the full impact of calculating compensation cost for
stock options under SFAS No. 123 is not reflected in the pro forma net
income amounts presented above because compensation cost is reflected
over the options' vesting periods and compensation cost for options
granted prior to January 30, 1995 is not considered.
The following table sets forth information regarding the 1990, 1992,
and 1996 Plans with respect to the exercise, cancellation, expiration,
and grant of options during the previous three fiscal years:
WEIGHTED
NUMBER OF AVERAGE
SHARES OPTION PRICE
--------------- -----------
OPTIONS OUTSTANDING JANUARY 30, 1994... 1,787,750 $ 9.54
EXERCISED.............................. (22,100) $ 1.67
CANCELED............................... (101,600) $11.71
GRANTED................................ 216,500 $ 9.57
---------------
OPTIONS OUTSTANDING JANUARY 29, 1995... 1,880,550 $ 9.49
EXERCISED.............................. (66,200) $ 4.49
CANCELED............................... (109,700) $10.70
GRANTED................................ 199,800 $11.25
---------------
OPTIONS OUTSTANDING JANUARY 28, 1996... 1,904,450 $ 9.76
EXERCISED.............................. (434,300) $ 7.79
CANCELED............................... (15,800) $10.10
EXPIRED................................ (87,000) $16.22
GRANTED................................ 468,700 $17.10
===============
OPTIONS OUTSTANDING FEBRUARY 2, 1997... 1,836,050 $11.80
===============
At February 2, 1997, the range of exercise prices, the weighted-average
exercise price, and the weighted-average contractual remaining life of
options outstanding are as follows:
<TABLE>
<CAPTION>
OPTIONS OUTSTANDING OPTIONS EXERCISABLE
----------------------------------------------- ------------------------------
WGT. AVG. WGT. AVG. WGT. AVG.
RANGE OF NUMBER REMAINING EXERCISE NUMBER EXERCISE
EXERCISE PRICES OUTSTANDING CONTRACTUAL LIFE PRICE EXERCISABLE PRICE
<S> <C> <C> <C> <C> <C>
$ 1.67 to $ 4.92 204,050 3.1 years $ 1.68 204,050 $ 1.68
$ 9.25 to $12.88 893,800 6.9 years $10.40 470,200 $10.47
$14.12 to $17.13 738,200 6.6 years $16.29 412,100 $15.98
=============== ================
$ 1.67 to $17.13 1,836,050 6.4 years $11.80 1,086,350 $10.91
=============== ================
</TABLE>
F-19
<PAGE>
PCA INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED FEBRUARY 2, 1997;
JANUARY 28, 1996; AND JANUARY 29, 1995
9. COMMON STOCK:
On March 20, 1996, the Company's Board of Directors increased the
number of shares authorized for repurchase by 744,300, bringing the
total number of shares authorized for repurchase to 1,000,000. During
fiscal 1996, the Company purchased, in various transactions, 309,242
shares. The credit agreement dated February 28, 1997 restricts the
Company from repurchasing any shares of the Company's stock.
10. DISCONTINUED OPERATIONS:
During the third quarter of fiscal 1993, the Company discontinued its
Department Store Division, consisting of 67 family portrait studios and
13 fashion photography studios operating in five department store
chains. During the second quarter of fiscal 1994, the Company adjusted
downward, by $0.4 million after-taxes, the remaining reserve for
discontinued operations.
Discontinued operations consist of income on disposal of the Department
Store Division of $412,406 (net of income taxes of $280,189), for the
fiscal year ended January 29, 1995.
F-20
<PAGE>
PCA INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED FEBRUARY 2, 1997;
JANUARY 28, 1996; AND JANUARY 29, 1995
11. UNAUDITED QUARTERLY FINANCIAL DATA:
<TABLE>
<CAPTION>
FOR THE FISCAL YEAR ENDED FEBRUARY 2, 1997
----------------------------------------------------------------------
February 2, October 27, July 28, April 28,
1997 1996 1996 1996
-------------- --------------- -------------- ---------------
<S> <C> <C> <C> <C>
SALES......................... $ 51,801,203 $37,093,025 $ 31,116,836 $36,087,986
GROSS PROFIT*................. $ 15,250,619 $ 7,165,823 $ 5,773,728 $ 8,802,429
NET INCOME.................... $ 981,667 $ 641,112 $ 232,297 $ 1,138,778
PRIMARY AND FULLY DILUTED
EARNINGS PER COMMON SHARE. $ 0.12 $ 0.08 $ 0.03 $ 0.14
</TABLE>
<TABLE>
<CAPTION>
FOR THE FISCAL YEAR ENDED JANUARY 28, 1996
----------------------------------------------------------------------
January 28, October 29, July 30, April 30,
1996 1995 1995 1995
-------------- --------------- -------------- ---------------
<S> <C> <C> <C> <C>
SALES......................... $ 46,585,446 $ 36,890,845 $ 28,629,613 $32,608,631
GROSS PROFIT*................. $ 14,780,167 $ 8,707,306 $ 5,780,190 $ 7,836,108
NET INCOME.................... $ 4,890,197 $ 1,677,469 $ 198,502 $ 851,001
PRIMARY AND FULLY DILUTED
EARNINGS PER COMMON SHARE. $ 0.62 $ 0.21 $ 0.02 $ 0.10
</TABLE>
*SALES LESS ADVERTISING AND PROMOTIONAL COSTS, COST OF PHOTOGRAPHIC
SALES, AND STORE COMMISSIONS AND SELLING COSTS.
F-21
<PAGE>
PCA INTERNATIONAL, INC. AND SUBSIDIARIES
SCHEDULE II. VALUATION AND QUALIFYING ACCOUNTS
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D COLUMN E
- - ------------------------------- ---------------- ------------- -------------- -------------
BALANCE AT CHARGED TO BALANCE AT
BEGINNING OF COSTS AND END OF
CLASSIFICATION PERIOD EXPENSES WRITE-OFFS PERIOD
- - ------------------------------- ---------------- ------------- -------------- -------------
<S> <C> <C> <C> <C>
FISCAL YEAR ENDED FEBRUARY 2, 1997:
Allowance for doubtful accounts... $1,011,350 $ 129,563 $ 272,952 867,961
========== ========== =============== ==========
FISCAL YEAR ENDED JANUARY 28, 1996:
Allowance for doubtful accounts... $ 845,843 $ 193,715 $ 28,208 $1,011,350
========== ========== =============== ==========
FISCAL YEAR ENDED JANUARY 29, 1995:
Allowance for doubtful accounts... $ 658,349 $ 82,427 $ (105,067) $ 845,843
========== ========== =============== ==========
</TABLE>
S-1
Exhibit 10(g)
CREDIT AGREEMENT
Dated as of February 28, 1997
among
PCA INTERNATIONAL, INC.,
as Borrower,
and Certain Subsidiaries and Affiliates of the Borrower
as Guarantors,
THE LENDERS NAMED HEREIN
AND
NATIONSBANK, N.A.,
as Agent
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
SECTION 1 DEFINITIONS.............................................................................................2
1.1 Definitions..........................................................................................2
1.2 Computation of Time Periods.........................................................................23
1.3 Accounting Terms....................................................................................23
SECTION 2 CREDIT FACILITIES......................................................................................24
2.1 Revolving Loans.....................................................................................24
2.2 Letter of Credit Subfacility........................................................................26
2.3 Term Loans..........................................................................................31
SECTION 3 OTHER PROVISIONS RELATING TO CREDIT FACILITIES.........................................................32
3.1 Default Rate........................................................................................32
3.2 Extension and Conversion............................................................................33
3.3 Prepayments.........................................................................................33
3.4 Termination and Reduction of Commitments............................................................35
3.5 Fees................................................................................................35
3.6 Capital Adequacy....................................................................................36
3.7 Inability To Determine Interest Rate................................................................36
3.8 Illegality..........................................................................................36
3.9 Requirements of Law.................................................................................37
3.10 Taxes..............................................................................................38
3.11 Indemnity..........................................................................................40
3.12 Pro Rata Treatment.................................................................................40
3.13 Sharing of Payments................................................................................41
3.14 Payments, Computations, Etc........................................................................42
3.15 Evidence of Debt...................................................................................43
3.16 Replacement of Lenders.............................................................................44
SECTION 4 GUARANTY...............................................................................................44
4.1 The Guarantee.......................................................................................44
4.2 Obligations Unconditional...........................................................................45
4.3 Reinstatement.......................................................................................46
4.4 Certain Additional Waivers..........................................................................46
4.5 Remedies............................................................................................46
4.6 Rights of Contribution..............................................................................47
4.7 Continuing Guarantee................................................................................47
SECTION 5 CONDITIONS.............................................................................................48
5.1 Conditions to Closing...............................................................................48
5.2 Conditions to All Extensions of Credit..............................................................52
SECTION 6 REPRESENTATIONS AND WARRANTIES.........................................................................53
6.1 Financial Condition.................................................................................53
i
<PAGE>
6.2 No Changes or Restricted Payments...................................................................53
6.3 Organization; Existence; Compliance with Law........................................................53
6.4 Power; Authorization; Enforceable Obligations.......................................................54
6.5 No Legal Bar........................................................................................54
6.6 No Material Litigation..............................................................................54
6.7 No Default..........................................................................................55
6.8 Ownership of Property; Liens........................................................................55
6.9 Intellectual Property...............................................................................55
6.10 No Burdensome Restrictions.........................................................................55
6.11 Taxes..............................................................................................55
6.12 ERISA..............................................................................................56
6.13 Governmental Regulations, Etc......................................................................57
6.14 Subsidiaries.......................................................................................58
6.15 Purpose of Extensions of Credit....................................................................58
6.16 Environmental Matters..............................................................................58
SECTION 7 AFFIRMATIVE COVENANTS..................................................................................59
7.1 Financial Statements................................................................................59
7.2 Certificates; Other Information.....................................................................60
7.3 Notices.............................................................................................61
7.4 Payment of Obligations..............................................................................62
7.5 Conduct of Business and Maintenance of Existence....................................................63
7.6 Maintenance of Property; Insurance..................................................................63
7.7 Inspection of Property; Books and Records; Discussions..............................................63
7.8 Environmental Laws..................................................................................64
7.9 Financial Covenants.................................................................................64
7.10 Agency Fees........................................................................................65
7.11 Additional Guaranties and Stock Pledges............................................................66
7.12 Ownership of Subsidiaries..........................................................................66
7.13 Use of Proceeds....................................................................................66
7.14 Employment Contracts, Etc..........................................................................66
SECTION 8 NEGATIVE COVENANTS.....................................................................................67
8.1 Indebtedness........................................................................................67
8.2 Liens...............................................................................................68
8.3 Nature of Business..................................................................................68
8.4 Consolidation, Merger, Sale or Purchase of Assets, Capital Expenditures, etc........................68
8.5 Advances, Investments and Loans.....................................................................69
8.6 Transactions with Affiliates........................................................................69
8.7 Ownership of Equity Interests.......................................................................69
8.8 Fiscal Year.........................................................................................69
8.9 Prepayments of Indebtedness, etc....................................................................69
8.11 Sale Leasebacks....................................................................................70
8.12 No Further Negative Pledges........................................................................70
8.13 Amendments to License Agreements...................................................................70
ii
<PAGE>
SECTION 9 EVENTS OF DEFAULT......................................................................................71
9.1 Events of Default...................................................................................71
9.2 Acceleration; Remedies..............................................................................73
SECTION 10 AGENCY PROVISIONS.....................................................................................74
10.1 Appointment........................................................................................74
10.2 Delegation of Duties...............................................................................74
10.3 Exculpatory Provisions.............................................................................75
10.4 Reliance on Communications.........................................................................75
10.5 Notice of Default..................................................................................76
10.6 Non-Reliance on Agent and Other Lenders............................................................76
10.7 Indemnification....................................................................................76
10.8 Agent in its Individual Capacity...................................................................77
10.9 Successor Agent....................................................................................77
SECTION 11 MISCELLANEOUS.........................................................................................78
11.1 Notices............................................................................................78
11.2 Right of Set-Off...................................................................................79
11.3 Benefit of Agreement...............................................................................79
11.4 No Waiver; Remedies Cumulative.....................................................................82
11.5 Payment of Expenses, etc...........................................................................82
11.6 Amendments, Waivers and Consents...................................................................83
11.7 Counterparts.......................................................................................84
11.8 Headings...........................................................................................84
11.9 Survival...........................................................................................84
11.10 Governing Law; Submission to Jurisdiction; Venue..................................................84
11.11 Severability......................................................................................85
11.12 Entirety..........................................................................................85
11.13 Binding Effect; Termination.......................................................................85
11.14 Confidentiality...................................................................................86
11.15 Source of Funds...................................................................................86
11.16 Conflict..........................................................................................87
</TABLE>
iii
<PAGE>
SCHEDULES
Schedule 1.1(a) Non-Recurring Expenses
Schedule 2.1(a) Schedule of Lenders and Commitments
Schedule 2.1(b)(i Form of Notice of Borrowing
Schedule 2.1(e) Form of Revolving Note
Schedule 2.2(b)-1 Closing Date Letters of Credit
Schedule 2.2(b)-2 Form of Notice of Request for Letter of Credit
Schedule 2.3(e) Form of Term Note
Schedule 3.2 Form of Notice of Extension/Conversion
Schedule 5.1(g)(v) Secretary's Certificate
Schedule 5.1(k) List of Real Property Collateral
Schedule 5.1(m) Corporate Structure
Schedule 6.2 Restricted Payments
Schedule 6.6 Litigation
Schedule 6.8 Existing Liens
Schedule 6.14 Subsidiaries
Schedule 7.2(b) Form of Officer's Compliance Certificate
Schedule 7.6 Insurance
Schedule 7.11-1 Form of Joinder Agreement
Schedule 7.11-2 Form of Pledge Joinder Agreement
Schedule 7.11-3 Foreign Subsidiaries
Schedule 8.1 Existing Indebtedness
Schedule 8.5 Existing Investments
Schedule 11.1 Lenders' Addresses
Schedule 11.3(b) Form of Assignment and Acceptance
iv
<PAGE>
CREDIT AGREEMENT
THIS CREDIT AGREEMENT dated as of February 28, 1997 (the "Credit
Agreement"), is by and among PCA INTERNATIONAL, INC., a North Carolina
corporation (the "Borrower"), and the subsidiaries and affiliates of the
Borrower identified on the signature pages hereto and such other subsidiaries
and affiliates as may from time to time become Guarantors hereunder in
accordance with the provisions hereof (collectively, the "Guarantors"), the
lenders named herein and such other lenders as may become a party hereto (the
"Lenders"), and NATIONSBANK, N.A., as Agent (in such capacity, the "Agent").
W I T N E S S E T H
WHEREAS, on December 20, 1996, an Offer to Purchase for Cash
(the "Tender Offer") all of the outstanding shares (the "ASI Shares") of common
stock of American Studios, Inc., a North Carolina corporation ("ASI") was made
by ASI Acquisition Corp., a North Carolina corporation and wholly-owned
subsidiary of the Borrower ("Acquisition Corp") pursuant to that certain
Agreement and Plan of Merger by and among Acquisition Corp, ASI and the
Borrower, dated as of December 17, 1996 (as it may be amended on or prior to the
Closing Date, the "Merger Agreement");
WHEREAS, on January 27, 1997, Acquisition Corp. purchased approximately
95% of the ASI Shares that were tendered pursuant to the terms of the Tender
Offer;
WHEREAS, concurrently with the execution of this Credit
Agreement, ASI will be merged with and into Acquisition Corp. (the "Merger")
with Acquisition Corp being the surviving corporation;
WHEREAS, in order to refinance certain loans obtained by the Borrower
to purchase ASI Shares at the close of the Tender Offer (the "Tender Offer
Debt"), to purchase the remaining ASI Shares acquired in connection with the
Merger, to pay costs and expenses associated with the Merger and to provide
working capital financing to the Borrower, the Borrower has requested that the
Lenders provide the Borrower with a $90,000,000 credit facility comprised of a
$25,000,000 revolving credit facility and a $65,000,000 term loan facility; and
WHEREAS, the Lenders have agreed to make the requested credit facility
available to the Borrower on the terms and conditions hereinafter set forth;
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1
<PAGE>
SECTION 1
DEFINITIONS
1.1 DEFINITIONS.
As used in this Credit Agreement, the following terms shall
have the meanings specified below unless the context otherwise requires:
"Acquisition Corp" has the meaning given to such term in the
first WHEREAS clause hereof, together with any successors or assigns.
"Additional Credit Party" means each Person that becomes a
Guarantor after the Closing Date by execution of a Joinder Agreement.
"Affiliate" means, with respect to any Person, any other
Person (i) directly or indirectly controlling or controlled by or under
direct or indirect common control with such Person or (ii) directly or
indirectly owning or holding five percent (5%) or more of the equity
interest in such Person. For purposes of this definition, "control"
when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative
to the foregoing.
"Agent" has the meaning given to such term in the heading
hereof, together with any successors or assigns.
"Agent's Fee Letter" means that certain letter agreement,
dated December 16, 1996, between the Agent and the Borrower, as
amended, modified, supplemented or replaced from time to time.
"Agent's Fees" shall have the meaning assigned to such term in
Section 3.5(c).
"Agency Services Address" means NationsBank, N.A.,
NC1-001-15-04, 101 North Tryon Street, Charlotte, North Carolina 28255,
Attn: Agency Services, or such other address as may be identified by
written notice from the Agent to the Borrower.
"Aggregate Revolving Committed Amount" means the aggregate
amount of Revolving Commitments in effect from time to time, being
initially Twenty-Five Million Dollars ($25,000,000).
"Aggregate Term Loan Committed Amount" means the aggregate
amount of Term Loan Commitments in effect from time to time, being
initially Sixty-Five Million Dollars ($65,000,000).
2
<PAGE>
"Applicable Percentage" means for any day, the rate per annum
set forth below opposite the applicable Consolidated Leverage Ratio
then in effect, it being understood that the Applicable Percentage for
(i) Base Rate Loans shall be the percentage set forth under the column
"Base Rate Margin", (ii) Eurodollar Loans shall be the percentage set
forth under the column "Eurodollar Margin and Letter of Credit Fee" and
(iii) the Letter of Credit Fee shall be the percentage set forth under
the column "Eurodollar Margin and Letter of Credit Fee":
Eurodollar
Margin
Consolidated and
Pricing Leverage Base Rate Letter of
Level Ratio Margin Credit Fee
----- ----- ------ ----------
I < 2.0 0.75% 1.75%
-
II > 2.0 but < 2.5 1.00% 2.00%
-
III > 2.5 but < 3.0 1.25% 2.25%
-
IV > 3.0 1.50% 2.50%
The Applicable Percentage shall be determined and adjusted quarterly on
the date (each a "Rate Determination Date") five (5) Business Days
after the date by which the annual and quarterly compliance
certificates and related financial statements and information are
required in accordance with the provisions of Sections 7.1(a) and (b)
and Section 7.2(b), as appropriate; provided that:
(i) the initial Applicable Percentages shall be based
on Pricing Level IV and shall remain in effect at such Pricing
Level until the first Rate Determination Date to occur after
the Closing Date, and
(ii) in the event an annual or quarterly compliance
certificate and related financial statements and information
are not delivered timely to the Agency Services Address by the
date required by Sections 7.1(a) and (b) and Section 7.2(b),
as appropriate, the Applicable Percentages shall be based on
Pricing Level IV until such time as an appropriate compliance
certificate and related financial statements and information
are delivered, whereupon the applicable Pricing Level shall be
adjusted based on the information contained in such compliance
certificate and related financial statements and information.
Each Applicable Percentage shall be effective from a Rate Determination
Date until the next such Rate Determination Date. The Agent shall
determine the appropriate Applicable Percentages in the pricing matrix
promptly upon receipt of the quarterly or annual compliance certificate
and related financial information and shall promptly notify the
Borrower and the Lenders of any change thereof. Such determinations by
the Agent shall be conclusive absent manifest error. Adjustments in the
Applicable Percentages shall be effective as to existing Extensions of
Credit as well as new Extensions of Credit made thereafter.
3
<PAGE>
"ASI" means American Studios, Inc., a North Carolina
corporation.
"ASI Shares" has the meaning given to such term in the first
WHEREAS clause hereof.
"Asset Disposition" means, (i) the sale, lease or other
disposition of any property or asset by the Borrower or any Subsidiary
of the Borrower, other than (A) any such sale permitted by Sections
8.4(c)(i) and 8.4(c)(iii) and (B) any such sale permitted by Section
8.4(c)(ii) to the extent the aggregate proceeds received from such
sales in any fiscal year are less than $250,000, and (ii) receipt by
the Borrower or any Subsidiary of the Borrower of any cash insurance
proceeds or condemnation award payable by reason of theft, loss,
physical destruction or damage, taking or similar event with respect to
any of their property or assets in an amount in excess of $250,000.
"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the
United States Code, as amended, modified, succeeded or replaced from
time to time.
"Bankruptcy Event" means, with respect to any Person, the
occurrence of any of the following with respect to such Person: (i) a
court or governmental agency having jurisdiction in the premises shall
enter a decree or order for relief in respect of such Person in an
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of such Person or for any substantial part of its Property or
ordering the winding up or liquidation of its affairs; or (ii) there
shall be commenced against such Person an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, or any case, proceeding or other action for the appointment
of a receiver, liquidator, assignee, custodian, trustee, sequestrator
(or similar official) of such Person or for any substantial part of its
Property or for the winding up or liquidation of its affairs, and such
involuntary case or other case, proceeding or other action shall remain
undismissed, undischarged or unbonded for a period of sixty (60)
consecutive days; or (iii) such Person shall commence a voluntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consent to the entry of an order for relief in
an involuntary case under any such law, or consent to the appointment
or taking possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of such Person or for any
substantial part of its Property or make any general assignment for the
benefit of creditors; or (iv) such Person shall be unable to, or shall
admit in writing its inability to, pay its debts generally as they
become due.
"Base Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest whole multiple of 1/100 of 1%)
equal to the greater of (a) the Federal Funds Rate in effect on such
day plus 1/2 of 1% or (b) the Prime Rate in effect on such day. If for
any reason the Agent shall have determined (which determination shall
be conclusive absent manifest error) that it is unable after due
inquiry to ascertain the Federal Funds Rate for any reason, including
the inability or failure of the Agent to obtain sufficient quotations
in accordance with the terms hereof, the Base Rate shall be determined
without regard to
4
<PAGE>
clause (a) of the first sentence of this definition until the
circumstances giving rise to such inability no longer exist. Any change
in the Base Rate due to a change in the Prime Rate or the Federal Funds
Rate shall be effective on the effective date of such change in the
Prime Rate or the Federal Funds Rate, respectively.
"Base Rate Loan" means any Loan bearing interest at a rate
determined by reference to the Base Rate.
"Borrower" means the Person identified as such in the heading
hereof, together with any successors and permitted assigns.
"Business Day" means a day other than a Saturday, Sunday or
other day on which commercial banks in Charlotte, North Carolina are
authorized or required by law to close, and when used in connection
with a Eurodollar Loan, such day shall also be a day on which dealings
between banks are carried on in U.S. dollar deposits in London,
England, Charlotte, North Carolina and New York, New York..
"Capital Expenditures" means all expenditures which in
accordance with GAAP would be classified as capital expenditures.
"Capital Lease" means, as applied to any Person, any lease of
any Property (whether real, personal or mixed) by that Person as lessee
which, in accordance with GAAP, is or should be accounted for as a
capital lease on the balance sheet of that Person.
"Capital Lease Obligation" means the capital lease obligations
relating to a Capital Lease determined in accordance with GAAP.
"Cash Equivalents" means (a) securities issued or directly and
fully guaranteed or insured by the United States of America or any
agency or instrumentality thereof (provided that the full faith and
credit of the United States of America is pledged in support thereof)
having maturities of not more than twelve months from the date of
acquisition, (b) U.S. dollar denominated time deposits and certificates
of deposit of (i) any Lender, or (ii) any domestic commercial bank of
recognized standing (y) having capital and surplus in excess of
$500,000,000 and (z) whose short-term commercial paper rating from S&P
is at least A-1 or the equivalent thereof or from Moody's is at least
P-1 or the equivalent thereof (any such bank being an "Approved Bank"),
in each case with maturities of not more than 270 days from the date of
acquisition, (c) commercial paper and variable or fixed rate notes
issued by any Approved Bank (or by the parent company thereof) and
maturing within six months of the date of acquisition, (d) repurchase
agreements entered into by a Person with a bank or trust company
(including any of the Lenders) or recognized securities dealer having
capital and surplus in excess of $500,000,000 for direct obligations
issued by or fully guaranteed by the United States of America in which
such Person shall have a perfected first priority security interest
(subject to no other Liens) and having, on the date of purchase
thereof, a fair market value of at least 100% of the amount of the
repurchase obligations, (e) obligations of any State of the United
States or any political subdivision thereof, the interest
5
<PAGE>
with respect to which is exempt from federal income taxation under
Section 103 of the Code, having a long term rating of at least AA- or
Aa-3 by S&P or Moody's, respectively, and maturing within three years
from the date of acquisition thereof, (f) Investments in municipal
auction preferred stock (i) rated AAA (or the equivalent thereof) or
better by S&P or Aaa (or the equivalent thereof) or better by Moody's
and (ii) with dividends that reset at least once every 365 days and (g)
Investments, classified in accordance with GAAP as current assets, in
money market investment programs registered under the Investment
Company Act of 1940, as amended, which are administered by reputable
financial institutions having capital of at least $100,000,000 and the
portfolios of which are limited to Investments of the character
described in the foregoing subdivisions (a), (b), (c), (e) and (f).
"Change of Control" means the occurrence of any of the
following events: (i) any Person or two or more Persons acting in
concert (other than Centennial Associates, L.P., Joseph Reich, Stanley
Tulchin or John Grosso) shall have acquired beneficial ownership,
directly or indirectly, of, or shall have acquired by contract or
otherwise, or shall have entered into a contract or arrangement that,
upon consummation, will result in its or their acquisition of, or
control over, Voting Stock of the Borrower (or other securities
convertible into such Voting Stock) representing 20% or more of the
combined voting power of all Voting Stock of the Borrower, or (ii)
during any period of 24 consecutive months, commencing at any time
after the Closing Date, individuals who at the beginning of such 24
month period were directors of the Borrower (together with any new
director whose election by the Borrower's Board of Directors or whose
nomination for election by the Borrower's shareholders was approved by
a vote of at least 75% 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
reason to constitute a majority of the directors of the Borrower then
in office. As used herein, "beneficial ownership" shall have the
meaning provided in Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934.
"Closing Date" means the date hereof.
"Closing Date Letters of Credit" means those letters of credit
identified on Schedule 2.2(b)-1.
"Code" means the Internal Revenue Code of 1986, as amended,
and any successor statute thereto, as interpreted by the rules and
regulations issued thereunder, in each case as in effect from time to
time. References to sections of the Code shall be construed also to
refer to any successor sections.
"Collateral" means all collateral referred to in and covered
by the Collateral Documents.
"Collateral Documents" means the Security Agreement, the
Pledge Agreement, the Mortgages and such other documents executed and
delivered in connection with the attachment and perfection of the
Lenders' security interests in the assets of the Credit
6
<PAGE>
Parties, including without limitation, the Mortgage Policies, UCC
financing statements and patent and trademark filings.
"Commitment" means the Revolving Commitment, the LOC
Commitment and the Term Loan Commitment.
"Commitment Fee" shall have the meaning given such term in
Section 3.5(a).
"Commitment Percentage" means the Revolving Commitment
Percentage.
"Commitment Period" means the period from and including the
Closing Date to but not including the earlier of (i) the Termination
Date, or (ii) the date on which the Revolving Commitments terminate in
accordance with the provisions of this Credit Agreement.
"Consolidated Adjusted EBITDAR" means for any period for the
Borrower and its Subsidiaries on a consolidated basis, the sum of
Consolidated EBITDA plus rent expense minus Capital Expenditures made
or incurred, in each case on a consolidated basis determined in
accordance with GAAP applied on a consistent basis. Except as expressly
provided otherwise, the applicable period shall be for the four
consecutive quarters ending as of the date of determination.
"Consolidated EBITDA" means for any period for the Borrower
and its Subsidiaries on a consolidated basis, the sum of Consolidated
Net Income plus Consolidated Interest Expense plus all provisions for
any Federal, state or other domestic and foreign income taxes plus
depreciation and amortization plus non-recurring expenses set forth on
Schedule 1.1(a) hereto to the extent accrued during the period in
question, in each case on a consolidated basis determined in accordance
with GAAP applied on a consistent basis. Except as expressly provided
otherwise, the applicable period shall be for the four consecutive
quarters ending as of the date of determination.
"Consolidated Excess Cash Flow" means for any period for the
Borrower and its Subsidiaries on a consolidated basis, the sum of
Consolidated Net Income plus the non-cash portion of Consolidated
Interest Expense plus depreciation, amortization and other non-cash
charges minus Capital Expenditures minus the aggregate amount of all
regularly scheduled payments of principal on Funded Debt minus the cash
portion of Federal, state, local and foreign income, value added and
similar taxes paid (to the extent not deducted in determining
Consolidated Net Income), in each case on a consolidated basis
determined in accordance with GAAP applied on a consistent basis.
"Consolidated Fixed Charge Coverage Ratio" means for any
period, the ratio of Consolidated Adjusted EBITDAR to Consolidated
Fixed Charges.
"Consolidated Fixed Charges" means for any period for the
Borrower and its Subsidiaries on a consolidated basis, the sum of
Consolidated Interest Expense plus
7
<PAGE>
scheduled maturities of Funded Debt paid during such period plus
Restricted Payments made during such period plus rent expense, in each
case on a consolidated basis determined in accordance with GAAP applied
on a consistent basis. Except as expressly provided otherwise, the
applicable period shall be for the four consecutive quarters ending as
of the date of determination.
"Consolidated Funded Debt" means Funded Debt of the Borrower
and its Subsidiaries determined on a consolidated basis in accordance
with GAAP applied on a consistent basis.
"Consolidated Group" means the Borrower and its Subsidiaries.
"Consolidated Interest Coverage Ratio" means for any period,
the ratio of Consolidated EBITDA to Consolidated Interest Expense.
"Consolidated Interest Expense" means for any period for the
Borrower and its Subsidiaries on a consolidated basis, all interest
expense, including the amortization of debt discount and premium and
the interest component under Capital Leases, in each case on a
consolidated basis determined in accordance with GAAP applied on a
consolidated basis. Except as expressly provided otherwise, the
applicable period shall be for the four consecutive quarters ending as
of the date of determination.
"Consolidated Leverage Ratio" means, as of the last day of any
fiscal quarter, the ratio of Consolidated Funded Debt on such date to
Consolidated EBITDA for the period of four consecutive fiscal quarters
ending as of such day.
"Consolidated Net Income" means for any period , the net
income of the Borrower and its Subsidiaries on a consolidated basis
determined in accordance with GAAP applied on a consistent basis, but
excluding for purposes of determining the Consolidated Leverage Ratio
and the Consolidated Fixed Charge Coverage Ratio, any extraordinary
gains or losses and any taxes on such excluded gains and any tax
deductions or credits on account of any such excluded gains and any tax
deductions or credits on account of any such excluded losses.
"Consolidated Net Worth" means total stockholders' equity of
the Borrower and its Subsidiaries on a consolidated basis as determined
in accordance with GAAP applied on a consistent basis.
"Contractual Obligation" means, as to any Person, any
provision of any security issued by such Person or of any material
agreement, instrument or undertaking to which such Person is a party or
by which it or any of its property is bound.
"Credit Documents" means a collective reference to this Credit
Agreement, the Notes, the LOC Documents, the Collateral Documents, each
Joinder Agreement, the
8
<PAGE>
Agent's Fee Letter, and all other related agreements and documents
issued or delivered hereunder or thereunder or pursuant hereto or
thereto.
"Credit Party" means any of the Borrower and the Guarantors.
"Default" means any event, act or condition which with notice
or lapse of time, or both, would constitute an Event of Default.
"Defaulting Lender" means, at any time, any Lender that, at
such time, (i) has failed to make an Extension of Credit required
pursuant to the terms of this Credit Agreement, (ii) has failed to pay
to the Agent or any Lender an amount owed by such Lender pursuant to
the terms of the Credit Agreement or any other of the Credit Documents,
or (iii) has been deemed insolvent or has become subject to a
bankruptcy or insolvency proceeding or to a receiver, trustee or
similar proceeding.
"Dollars" and "$" means dollars in lawful currency of the
United States of America.
"Domestic Credit Party" means any Credit Party which is
incorporated or organized under the laws of any State of the United
States or the District of Columbia.
"Domestic Subsidiary" means any Subsidiary which is
incorporated or organized under the laws of any State of the United
States or the District of Columbia.
"Environmental Laws" means any and all lawful and applicable
Federal, state, local and foreign statutes, laws, regulations,
ordinances, rules, judgments, orders, decrees, permits, concessions,
grants, franchises, licenses, agreements or other governmental
restrictions relating to the environment or to emissions, discharges,
releases or threatened releases of pollutants, contaminants, chemicals,
or industrial, toxic or hazardous substances or wastes into the
environment including, without limitation, ambient air, surface water,
ground water, or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport,
or handling of pollutants, contaminants, chemicals, or industrial,
toxic or hazardous substances or wastes.
"Equity Transaction" means, with respect to the Borrower and
its Subsidiaries, any issuance of shares of its capital stock or other
equity interest; provided that any Equity Transaction shall not include
any such issuance (A) by a Subsidiary of the Borrower to the Borrower
or (B) to an employee, officer or director or former employee, officer
or director pursuant to a stock incentive plan, stock option plan or
other equity-based compensation plan or arrangement except to the
extent that the aggregate annual amount of such issuances under this
subsection (B) exceeds $750,000.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and any successor statute thereto, as interpreted by
the rules and regulations thereunder, all as the same may be in effect
from time to time. References to sections of ERISA shall be construed
also to refer to any successor sections.
9
<PAGE>
"ERISA Affiliate" means an entity which is under common
control with any Credit Party within the meaning of Section 4001(a)(14)
of ERISA, or is a member of a group which includes the Borrower and
which is treated as a single employer under Sections 414(b) or (c) of
the Code.
"ERISA Event" means (i) with respect to any Plan, the
occurrence of a Reportable Event or the substantial cessation of
operations (within the meaning of Section 4062(e) of ERISA); (ii) the
withdrawal by the Borrower, any Subsidiary of the Borrower or any ERISA
Affiliate from a Multiple Employer Plan during a plan year in which it
was a substantial employer (as such term is defined in Section
4001(a)(2) of ERISA), or the termination of a Multiple Employer Plan;
(iii) the distribution of a notice of intent to terminate or the actual
termination of a Plan pursuant to Section 4041(a)(2) or 4041A of ERISA;
(iv) the institution of proceedings to terminate or the actual
termination of a Plan by the PBGC under Section 4042 of ERISA; (v) any
event or condition which could reasonably be expected to constitute
grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan; (vi) the complete or
partial withdrawal of the Borrower, any Subsidiary of the Borrower or
any ERISA Affiliate from a Multiemployer Plan; (vii) the conditions for
imposition of a lien under Section 302(f) of ERISA exist with respect
to any Plan; or (vii) the adoption of an amendment to any Plan
requiring the provision of security to such Plan pursuant to Section
307 of ERISA.
"Eurodollar Loan" means any Loan bearing interest at a rate
determined by reference to the Eurodollar Rate.
"Eurodollar Rate" means, for the Interest Period for each
Eurodollar Loan comprising part of the same borrowing (including
conversions, extensions and renewals), a per annum interest rate
determined pursuant to the following formula:
Eurodollar Rate = Interbank Offered Rate
--------------------------------
1 - Eurodollar Reserve Percentage
"Eurodollar Reserve Percentage" means for any day, that
percentage (expressed as a decimal) which is in effect from time to
time under Regulation D of the Board of Governors of the Federal
Reserve System (or any successor), as such regulation may be amended
from time to time or any successor regulation, as the maximum reserve
requirement (including, without limitation, any basic, supplemental,
emergency, special, or marginal reserves) applicable with respect to
Eurocurrency liabilities as that term is defined in Regulation D (or
against any other category of liabilities that includes deposits by
reference to which the interest rate of Eurodollar Loans is
determined), whether or not Lender has any Eurocurrency liabilities
subject to such reserve requirement at that time. Eurodollar Loans
shall be deemed to constitute Eurocurrency liabilities and as such
shall be deemed subject to reserve requirements without benefits of
credits for proration, exceptions or offsets that may
10
<PAGE>
be available from time to time to a Lender. The Eurodollar Rate shall
be adjusted automatically on and as of the effective date of any change
in the Eurodollar Reserve Percentage.
"Event of Default" means such term as defined in Section 9.1.
"Extension of Credit" means, as to any Lender, the making of,
extension or conversion of, or participation in, a Loan by such Lender
or the issuance or extension of, or participation in, a Letter of
Credit.
"Fees" means all fees payable pursuant to Section 3.5.
"Federal Funds Rate" means, for any day, the rate of interest
per annum (rounded upwards, if necessary, to the nearest whole multiple
of 1/100 of 1%) equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers on such day, as published by the
Federal Reserve Bank of New York on the Business Day next succeeding
such day, provided that (A) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions
on the next preceding Business Day and (B) if no such rate is so
published on such next preceding Business Day, the Federal Funds Rate
for such day shall be the average rate quoted to the Agent on such day
on such transactions as determined by the Agent.
"Foreign Credit Party" means a Credit Party which is not a
Domestic Credit Party.
"Foreign Subsidiary" means a Subsidiary which is not a
Domestic Subsidiary.
"Funded Debt" means, with respect to any Person, without
duplication, (i) all Indebtedness of such Person for borrowed money,
(ii) all purchase money Indebtedness of such Person, including without
limitation the principal portion of all obligations of such Person
under Capital Leases, (iii) all Guaranty Obligations of such Person
with respect to Funded Debt of another Person, (iv) the maximum
available amount of all standby letters of credit or acceptances issued
or created for the account of such Person, (v) all Funded Debt of
another Person secured by a Lien on any Property of such Person,
whether or not such Funded Debt has been assumed, provided that for
purposes hereof the amount of such Funded Debt shall be limited to the
greater of (A) the amount of such Funded Debt as to which there is
recourse to such Person and (B) the fair market value of the property
which is subject to the Lien and (vi) 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. The Funded Debt of any Person shall include
the Funded Debt of any partnership or joint venture in which such
Person is a general partner or joint venturer, but only to the extent
to which there is recourse to such Person for the payment of such
Funded Debt.
11
<PAGE>
"GAAP" means generally accepted accounting principles in the
United States applied on a consistent basis and subject to the terms of
Section 1.3 hereof.
"Governmental Authority" means any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or
regulatory body.
"Guarantor" means each of those Persons identified as a
"Guarantor" on the signature pages hereto and each Additional Credit
Party which may hereafter execute a Joinder Agreement, together with
their successors and permitted assigns.
"Guaranteed Obligations" means, as to each Guarantor, without
duplication, (i) all obligations of the Borrower to the Lenders and the
Agent, whenever arising, under this Credit Agreement , the Notes or the
Credit Documents, and (ii) all liabilities and obligations, whenever
arising, owing from the Borrower to any Lender, or any Affiliate of a
Lender, arising under any Hedging Agreement relating to Loans or
Obligations hereunder.
"Guaranty Obligations" means, with respect to any Person,
without duplication, any obligations of such Person (other than
endorsements in the ordinary course of business of negotiable
instruments for deposit or collection) guaranteeing or intended to
guarantee any Indebtedness of any other Person in any manner, whether
direct or indirect, and including without limitation any obligation,
whether or not contingent, (i) to purchase any such Indebtedness or any
Property constituting security therefor, (ii) to advance or provide
funds or other support for the payment or purchase of any such
Indebtedness or to maintain working capital, solvency or other balance
sheet condition of such other Person (including without limitation keep
well agreements, maintenance agreements, comfort letters or similar
agreements or arrangements) for the benefit of any holder of
Indebtedness of such other Person, (iii) to lease or purchase Property,
securities or services primarily for the purpose of assuring the holder
of such Indebtedness, or (iv) to otherwise assure or hold harmless the
holder of such Indebtedness against loss in respect thereof. The amount
of any Guaranty Obligation hereunder shall (subject to any limitations
set forth therein) be deemed to be an amount equal to the outstanding
principal amount (or maximum principal amount, if larger) of the
Indebtedness in respect of which such Guaranty Obligation is made.
"Hedging Agreements" means any interest rate protection
agreement or foreign currency exchange agreement between the Borrower
and any Lender, or any Affiliate of a Lender.
"Indebtedness" of any Person means (i) all obligations of such
Person for borrowed money, (ii) all obligations of such Person
evidenced by bonds, debentures, notes or similar instruments, or upon
which interest payments are customarily made, (iii) all obligations of
such Person under conditional sale or other title retention agreements
relating to Property purchased by such Person (other than customary
reservations or retentions of title under agreements with suppliers
entered into in the ordinary course of business), (iv) all
12
<PAGE>
obligations of such Person issued or assumed as the deferred purchase
price of Property or services purchased by such Person (other than
trade debt incurred in the ordinary course of business and due within
six months of the incurrence thereof) which would appear as liabilities
on a balance sheet of such Person, (v) all obligations of such Person
under take-or-pay or similar arrangements or under commodities
agreements, (vi) all Indebtedness of others secured by (or for which
the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on, or payable out of the
proceeds of production from, Property owned or acquired by such Person,
whether or not the obligations secured thereby have been assumed,
provided that for purposes hereof the amount of such Indebtedness shall
be limited to the greater of (A) the amount of such Indebtedness as to
which there is recourse to such Person and (B) the fair market value of
the property which is subject to the Lien, (vii) all Guaranty
Obligations of such Person, (viii) the principal portion of all
obligations of such Person under Capital Leases, (ix) all obligations
of such Person in respect of interest rate protection agreements,
foreign currency exchange agreements, commodity purchase or option
agreements or other interest or exchange rate or commodity price
hedging agreements (including, but not limited to, the Hedging
Agreements), (x) the maximum amount of all standby letters of credit
issued or bankers' acceptances facilities created for the account of
such Person and, without duplication, all drafts drawn thereunder (to
the extent unreimbursed), (xi) all preferred stock issued by such
Person and required by the terms thereof to be redeemed, or for which
mandatory sinking fund payments are due, by a fixed date and (xii) 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. The
Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture in which such Person is a general partner
or a joint venturer, but only to the extent to which there is recourse
to such Person for payment of such Indebtedness.
"Interbank Offered Rate" means, for the Interest Period for
each Eurodollar Loan comprising part of the same borrowing (including
conversions, extensions and renewals), a per annum interest rate
(rounded upwards, if necessary, to the nearest whole multiple of 1/100
of 1%) equal to the rate of interest, determined by the Agent on the
basis of the offered rates for deposits in dollars for a period of time
corresponding to such Interest Period (and commencing on the first day
of such Interest Period), appearing on Telerate Page 3750 (or, if, for
any reason, Telerate Page 3750 is not available, the Reuters Screen
LIBO Page) as of approximately 11:00 A.M. (London time) two (2)
Business Days before the first day of such Interest Period. As used
herein, "Telerate Page 3750" means the display designated as page 3750
by Dow Jones Telerate, Inc. (or such other page as may replace such
page on that service for the purpose of displaying the British Bankers
Association London interbank offered rates) and "Reuters Screen LIBO
Page" means the display designated as page "LIBO" on the Reuters
Monitor Money Rates Service (or such other page as may replace the LIBO
page on that service for the purpose of displaying London interbank
offered rates of major banks).
13
<PAGE>
"Interest Payment Date" means (i) as to any Base Rate Loan,
the last day of each calendar quarter, the date of repayment of
principal of such Loan and the Termination Date and (ii) as to any
Eurodollar Loan, the last day of each Interest Period for such Loan,
any date of repayment of principal of such Loan and the Termination
Date, and in addition where the applicable Interest Period is more than
3 months, then also on the date 3 months from the beginning of the
Interest Period, and each 3 months thereafter. If an Interest Payment
Date falls on a date which is not a Business Day, such Interest Payment
Date shall be deemed to be the next succeeding Business Day, except
that in the case of Eurodollar Loans where the next succeeding Business
Day falls in the next succeeding calendar month, then on the next
preceding Business Day.
"Interest Period" means as to any Eurodollar Loan, a period of
one, two, three or six month's duration, as the Borrower may elect,
commencing in each case, on the date of the borrowing (including
conversions, extensions and renewals); provided, however, (A) if any
Interest Period would end on a day which is not a Business Day, such
Interest Period shall be extended to the next succeeding Business Day
(except that in the case of Eurodollar Loans where the next succeeding
Business Day falls in the next succeeding calendar month, then on the
next preceding Business Day), (B) no Interest Period shall extend
beyond the Termination Date, and (C) in the case of Eurodollar Loans,
where an Interest Period begins on a day for which there is no
numerically corresponding day in the calendar month in which the
Interest Period is to end, such Interest Period shall end on the last
day of such calendar month.
"Investment", in any Person, means any loan or advance to such
Person, any purchase or other acquisition of any capital stock,
warrants, rights, options, obligations or other securities of, or
equity interest in, such Person, any capital contribution to such
Person or any other investment in such Person, including, without
limitation, any Guaranty Obligation incurred for the benefit of such
Person.
"Issuing Lender" means NationsBank.
"Issuing Lender Fees" has the meaning assigned to such term
in Section 3.5(b)(ii).
"Joinder Agreement" means a Joinder Agreement substantially in
the form of Schedule 7.11-1 hereto, executed and delivered by an
Additional Credit Party in accordance with the provisions of Section
7.11.
"Kmart License Agreement" means the Agreement, dated May 10,
1996, between Kmart Corporation and the Borrower, as amended, modified
or supplemented from time to time.
"Lenders" means each of the Persons identified as a "Lender"
on the signature pages hereto, and their successors and assigns.
14
<PAGE>
"Letter of Credit" means any Closing Date Letter of Credit and
any other letter of credit issued by the Issuing Lender for the account
of the Borrower in accordance with the terms of Section 2.2.
"Letter of Credit Fee" has the meaning given such term in
Section 3.5(b)(i).
"Lien" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, security interest, encumbrance, lien (statutory or
otherwise), preference, priority or charge of any kind (including any
agreement to give any of the foregoing, any conditional sale or other
title retention agreement, any financing or similar statement or notice
filed under the Uniform Commercial Code as adopted and in effect in the
relevant jurisdiction or other similar recording or notice statute, and
any lease in the nature thereof).
"Loan" or "Loans" means the Revolving Loans and the Term
Loans.
"LOC Commitment" means the commitment of the Issuing Lender to
issue, and to honor payment obligations under, Letters of Credit
hereunder and with respect to each Lender, the commitment of each
Lender to purchase participation interests in the Letters of Credit up
to such Lender's LOC Committed Amount as specified in Schedule 2.1(a),
as such amount may be reduced from time to time in accordance with the
provisions hereof.
"LOC Committed Amount" means, collectively, the aggregate
amount of all of the LOC Commitments of the Lenders to issue and
participate in Letters of Credit as referenced in Section 2.2(a), being
initially FIVE MILLION DOLLARS ($5,000,000) and, individually, the
amount of each Lender's LOC Commitment as specified in Schedule 2.1(a).
"LOC Documents" means, with respect to any Letter of Credit,
such Letter of Credit, any amendments thereto, any documents delivered
in connection therewith, any application therefor, and any agreements,
instruments, guarantees or other documents (whether general in
application or applicable only to such Letter of Credit) governing or
providing for (i) the rights and obligations of the parties concerned
or at risk or (ii) any collateral security for such obligations.
"LOC Obligations" means, at any time, the sum of (i) the
maximum amount which is, or at any time thereafter may become,
available to be drawn under Letters of Credit then outstanding,
assuming compliance with all requirements for drawings referred to in
such Letters of Credit plus (ii) the aggregate amount of all drawings
under Letters of Credit honored by the Issuing Lender but not
theretofore reimbursed.
"Margin Stock" has the meaning given such term in 12 CFR Part
221.2.
"Material Adverse Effect" means a material adverse effect on
(i) the condition (financial or otherwise), operations, business,
assets, liabilities or prospects of the Borrower
15
<PAGE>
and its Subsidiaries taken as a whole, (ii) the ability of the Credit
Parties taken as a whole to perform any material obligation under the
Credit Documents to which it is a party or (iii) the rights and
remedies of the Lenders under the Credit Documents.
"Material Guarantors" means any Subsidiary of the Borrower
having total assets of $1,000,000 or more.
"Materials of Environmental Concern" means any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum
products or any hazardous or toxic substances, materials or wastes,
defined or regulated as such in or under any Environmental Laws,
including, without limitation, asbestos, polychlorinated biphenyls and
urea-formaldehyde insulation.
"Merger" has the meaning given to such term in the second
WHEREAS clause hereof.
"Merger Agreement" has the meaning given to such term in the
first WHEREAS clause hereof.
"Moody's" means Moody's Investors Service, Inc., or any
successor or assignee of the business of such company in the business
of rating securities.
"Mortgages" has the meaning given to such term in Section
5.1(k).
"Mortgage Policies" has the meaning given to such term in
Section 5.1(k).
"Multiemployer Plan" means a Plan which is a multiemployer
plan as defined in Sections 3(37) or 4001(a)(3) of ERISA.
"Multiple Employer Plan" means a Plan which the Borrower, any
Subsidiary of the Borrower or any ERISA Affiliate and at least one
employer other than the Borrower, any Subsidiary of the Borrower or any
ERISA Affiliate are contributing sponsors.
"NationsBank" means NationsBank, N.A. and its successors.
"Net Proceeds" means gross cash proceeds (including any cash
received by way of deferred payment pursuant to a promissory note,
receivable or otherwise, but only as and when received) received in
connection with an Asset Disposition or Equity Transaction, net of (i)
reasonable transaction costs, including in the case of an Equity
Transaction, underwriting discounts and commissions and in the case of
an Asset Disposition occurring in connection with a claim under an
insurance policy, costs incurred in connection with adjustment and
settlement of the claim, (ii) estimated taxes payable in connection
therewith, and (iii) in the case of an Asset Disposition, any amounts
payable in respect of Indebtedness, including without limitation
principal, interest, premiums and penalties, which is secured by, or
otherwise related to, any
16
<PAGE>
property or asset which is the subject thereof to the extent that such
Indebtedness and any payments in respect thereof are paid with a
portion of the proceeds therefrom.
"Non-Excluded Taxes" means such term as is defined in
Section 3.10.
"Note" or "Notes" means any Revolving Notes or any Term Notes.
"Notice of Borrowing" means a written notice of borrowing in
substantially the form of Schedule 2.1(b)(i), as required by Section
2.1(b)(i).
"Notice of Extension/Conversion" means a written notice of
extension or conversion in substantially the form of Schedule 3.2, as
required by Section 3.2.
"Obligations" means, collectively, the Term Loans, the
Revolving Loans and the LOC Obligations.
"Operating Lease" means, as applied to any Person, any lease
(including, without limitation, leases which may be terminated by the
lessee at any time) of any Property (whether real, personal or mixed)
which is not a Capital Lease other than any such lease in which that
Person is the lessor.
"Participation Interest" means the purchase by a Lender of a
participation in Letters of Credit and LOC Obligations as provided in
Section 2.2(c), and in Loans as provided in Section 3.13.
"PBGC" means the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA and any
successor thereof.
"Permitted Investments" means Investments which are either (i)
cash and Cash Equivalents; (ii) accounts receivable created, acquired
or made in the ordinary course of business and payable or dischargeable
in accordance with customary trade terms; (iii) Investments consisting
of stock, obligations, securities or other property received in
settlement of accounts receivable (created in the ordinary course of
business) from bankrupt obligors; (iv) Investments existing as of the
Closing Date and set forth in Schedule 8.5; (v) Guaranty Obligations
permitted by Section 8.1; (vi) loans to employees, directors or
officers in connection with the award of convertible bonds or stock
under a stock incentive plan, stock option plan or other equity-based
compensation plan or arrangement in the aggregate not to exceed
$500,000 (calculated on the exercise price for any such shares) in the
aggregate at any time outstanding; (vii) other advances or loans to
employees, directors, officers or agents not to exceed $750,000 in the
aggregate at any time outstanding; (viii) advances or loans to
customers or suppliers that do not exceed $250,000 in the aggregate at
any one time outstanding; (ix) Investments by one Credit Party in and
to another Credit Party; (x) loans, advances and investments in Foreign
Subsidiaries in an amount not to exceed $5,000,000 in the aggregate at
any time outstanding and (xi) other loans, advances
17
<PAGE>
and investments of a nature not contemplated in the foregoing
subsections in an amount not to exceed $500,000 in the aggregate at any
time outstanding.
"Permitted Liens" means:
(i) Liens in favor of the Agent on behalf of
the Lenders;
(ii) Liens (other than Liens created or
imposed under ERISA) for taxes, assessments or governmental
charges or levies not yet due or Liens for taxes being
contested in good faith by appropriate proceedings for which
adequate reserves determined in accordance with GAAP have been
established (and as to which the Property subject to any such
Lien is not yet subject to foreclosure, sale or loss on
account thereof);
(iii) statutory Liens of landlords and Liens
of carriers, warehousemen, mechanics, materialmen and
suppliers and other Liens imposed by law or pursuant to
customary reservations or retentions of title arising in the
ordinary course of business, provided that such Liens secure
only amounts not yet due and payable or, if due and payable,
are unfiled and no other action has been taken to enforce the
same or are being contested in good faith by appropriate
proceedings for which adequate reserves determined in
accordance with GAAP have been established (and as to which
the Property subject to any such Lien is not yet subject to
foreclosure, sale or loss on account thereof);
(iv) Liens (other than Liens created or
imposed under ERISA) incurred or deposits made by the Borrower
and its Subsidiaries in the ordinary course of business in
connection with workers' compensation, unemployment insurance
and other types of social security, or to secure the
performance of tenders, statutory obligations, bids, leases,
government contracts, performance and return-of-money bonds
and other similar obligations (exclusive of obligations for
the payment of borrowed money);
(v) Liens in connection with attachments or
judgments (including judgment or appeal bonds) provided that
the judgments secured shall, within 30 days after the entry
thereof, have been discharged or execution thereof stayed
pending appeal, or shall have been discharged within 30 days
after the expiration of any such stay;
(vi) easements, rights-of-way, restrictions
(including zoning restrictions), minor defects or
irregularities in title and other similar charges or
encumbrances not, in any material respect, impairing the use
of the encumbered Property for its intended purposes;
(vii) Liens securing purchase money
Indebtedness (including Capital Leases) to the extent
permitted under Section 8.1(c), provided that any such Lien
18
<PAGE>
attaches only to the Property financed and such Lien attaches
thereto concurrently with or within 90 days after the
acquisition thereof;
(viii) leases or subleases granted to others
not interfering in any material respect with the business of
any member of the Consolidated Group;
(ix) any interest of title of a lessor
under, and Liens arising from UCC financing statements (or
equivalent filings, registrations or agreements in foreign
jurisdictions) relating to, leases permitted by this Credit
Agreement;
(x) Liens in favor of customs and revenue
authorities arising as a matter of law to secure payment of
customs duties in connection with the importation of goods;
(xi) Liens deemed to exist in connection
with Investments in repurchase agreements permitted under
Section 8.5;
(xii) normal and customary rights of setoff
upon deposits of cash in favor of banks or other depository
institutions; and
(xiii) Liens existing as of the Closing Date
and set forth on Schedule 6.8; provided that (a) no such Lien
shall at any time be extended to or cover any Property other
than the Property subject thereto on the Closing Date and (b)
the principal amount of the Indebtedness secured by such Liens
shall not be extended, renewed, refunded or refinanced.
"Person" means any individual, partnership, joint venture,
firm, corporation, limited liability company, association, trust or
other enterprise (whether or not incorporated) or any Governmental
Authority.
"Plan" means any employee benefit plan (as defined in Section
3(3) of ERISA) which is covered by ERISA and with respect to which the
Borrower, any Subsidiary of the Borrower or any ERISA Affiliate is (or,
if such plan were terminated at such time, would under Section 4069 of
ERISA be deemed to be) an "employer" within the meaning of Section 3(5)
of ERISA.
"Pledge Agreement" means the Pledge Agreement dated as of the
date hereof entered into by the Credit Parties in favor of the Agent
for the benefit of the Lenders (and affiliates of Lenders as to certain
obligations under Hedge Agreements), as amended and modified.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by NationsBank as its prime rate in effect
at its principal office in Charlotte, North Carolina, with each change
in the Prime Rate being effective on the date such change is publicly
announced as effective (it being understood and agreed that the Prime
Rate is a
19
<PAGE>
reference rate used by NationsBank in determining interest rates on
certain loans and is not intended to be the lowest rate of interest
charged on any extension of credit by NationsBank to any debtor).
"Pro Forma" means, with respect to any event, that such event
shall be deemed to have occurred as of the first day of the
twelve-month period ending as of the last day of the most recent fiscal
quarter for which the Lenders have received the financial information
required by Section 7.1(a) or 7.1(b)(ii), as applicable.
"Property" means any interest in any kind of property or
asset, whether real, personal or mixed, or tangible or intangible.
"Receivables" means any right of payment from or on behalf of
any obligor, whether constituting an account, chattel paper,
instrument, general intangible or otherwise, arising from the sale or
financing by a member of the Consolidated Group of merchandise or
services, and monies due thereunder, security in the merchandise and
services financed thereby, records related thereto, and the right to
payment of any interest or finance charges and other obligations with
respect thereto, proceeds from claims on insurance policies related
thereto, any other proceeds related thereto, and any other related
rights.
"Register" has the meaning given such term in Section 11.3(c).
"Regulation G, T, U, or X" means Regulation G, T, U or X,
respectively, of the Board of Governors of the Federal Reserve System
as from time to time in effect and any successor to all or a portion
thereof.
"Release" means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping
or disposing into the environment (including the abandonment or
discarding of barrels, containers and other closed receptacles
containing any Materials of Environmental Concern).
"Reportable Event" means any of the events set forth in
Section 4043(c) of ERISA, other than those events as to which the
notice requirement has been waived by regulation.
"Required Lenders" means, at any time, Lenders having more
than fifty percent (50%) of the Commitments, or if the Commitments have
been terminated, Lenders having more than fifty percent (50%) of the
aggregate principal amount of the Obligations outstanding (taking into
account in each case Participation Interests or obligation to
participate therein); provided that the Commitments of, and outstanding
principal amount of Obligations (taking into account Participation
Interests therein) owing to, a Defaulting Lender shall be excluded for
purposes hereof in making a determination of Required Lenders.
20
<PAGE>
"Requirement of Law" means, as to any Person, the certificate
of incorporation and by-laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or
any of its material property.
"Responsible Officer" means the President, the Chief Financial
Officer, the Controller and any Vice President.
"Restricted Payment" means (i) any dividend or other
distribution, direct or indirect, on account of any shares of any class
of stock of the Borrower now or hereafter outstanding, (ii) any
redemption, retirement, sinking fund or similar payment, purchase or
other acquisition for value, direct or indirect, of any shares of any
class of stock of the Borrower now or hereafter outstanding, and (iii)
any payment made to retire, or to obtain the surrender of, any
outstanding warrants, options or other rights to acquire shares of any
class of stock of the Borrower now or hereafter outstanding.
"Revolving Commitment" means, with respect to each Lender, the
commitment of such Lender to make Revolving Loans in an aggregate
principal amount at any time outstanding of up to such Lender's
Commitment Percentage of the Aggregate Revolving Committed Amount as
specified in Schedule 2.1(a), as such amount may be reduced from time
to time in accordance with the provisions hereof.
"Revolving Commitment Percentage" means, for each Lender, a
fraction (expressed as a decimal) the numerator of which is the
Revolving Commitment of such Lender at such time and the denominator of
which is the Aggregate Revolving Committed Amount at such time. The
initial Revolving Commitment Percentages are set out on Schedule
2.1(a).
"Revolving Committed Amount" means, collectively, the
aggregate amount of all of the Revolving Commitments as referenced in
Section 2.1(a) and, individually, the amount of each Lender's Revolving
Commitment as specified in Schedule 2.1(a).
"Revolving Loans" has the meaning assigned to such term in
Section 2.1(a).
"Revolving Note" or "Revolving Notes" means the promissory
notes of the Borrower in favor of each of the Lenders evidencing the
Revolving Loans in substantially the form attached as Schedule 2.1(e),
individually or collectively, as appropriate, as such promissory notes
may be amended, modified, supplemented, extended, renewed or replaced
from time to time.
"S&P" means Standard & Poor's Ratings Group, a division of
McGraw Hill, Inc., or any successor or assignee of the business of such
division in the business of rating securities.
21
<PAGE>
"Security Agreement" means the Security Agreement dated as of
the date hereof entered into by the Credit Parties in favor of the
Agent for the benefit of the Lenders (and affiliates of Lenders as to
certain obligations under Hedge Agreements), as amended and modified.
"Single Employer Plan" means any Plan which is covered by
Title IV of ERISA, but which is not a Multiemployer Plan or a Multiple
Employer Plan.
"Solvent" or "Solvency" means, with respect to any Person as
of a particular date, that on such date (i) such Person is able to
realize upon its assets and pay its debts and other liabilities,
contingent obligations and other commitments as they mature in the
normal course of business, (ii) such Person does not intend to, and
does not believe that it will, incur debts or liabilities beyond such
Person's ability to pay as such debts and liabilities mature in their
ordinary course, (iii) such Person is not engaged in a business or a
transaction, and is not about to engage in a business or a transaction,
for which such Person's Property would constitute unreasonably small
capital after giving due consideration to the prevailing practice in
the industry in which such Person is engaged or is to engage, (iv) the
fair value of the Property of such Person is greater than the total
amount of liabilities, including, without limitation, contingent
liabilities, of such Person and (v) the present fair saleable value of
the assets of such Person is not less than the amount that will be
required to pay the probable liability of such Person on its debts as
they become absolute and matured. In computing the amount of contingent
liabilities at any time, it is intended that such liabilities will be
computed at the amount which, in light of all the facts and
circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
"Subsidiary" means, as to any Person, (a) any corporation more
than 50% of whose stock of any class or classes having by the terms
thereof ordinary voting power to elect a majority of the directors of
such corporation (irrespective of whether or not at the time, any class
or classes of such corporation shall have or might have voting power by
reason of the happening of any contingency) is at the time owned by
such Person directly or indirectly through Subsidiaries, and (b) any
partnership, association, joint venture or other entity in which such
Person directly or indirectly through Subsidiaries has more than 50% of
the voting interests at any time. Unless otherwise identified,
"Subsidiary" or "Subsidiaries" shall mean Subsidiaries of the Borrower.
"Tender Offer" has the meaning given to such term in the first
WHEREAS clause hereof.
"Tender Offer Debt" has the meaning given to such term in the
fourth WHEREAS clause hereof.
"Term Loan Commitment" means, with respect to each Lender, the
commitment of such Lender to make Term Loans in an aggregate principal
amount at any time outstanding of up to such Lender's Commitment
Percentage of the Aggregate Term Loan Committed
22
<PAGE>
Amount as specified in Schedule 2.1(a), as such amount may be reduced
from time to time in accordance with the provisions hereof.
"Term Loan Committed Amount" means, collectively, the
aggregate amount of all of the Term Loan Commitments as referenced in
Section 2.3(a) and, individually, the amount of each Lender's Term Loan
Commitment as specified in Schedule 2.1(a).
"Term Loans" has the meaning assigned to such term in Section
2.3.
"Term Note" or "Term Notes" means the promissory notes of the
Borrower in favor of each of the Lenders evidencing the Term Loans in
substantially the form attached as Schedule 2.3(e), individually or
collectively, as appropriate, as such promissory notes may be amended,
modified, supplemented, extended, renewed or replaced from time to
time.
"Termination Date" means February 28, 2002, or if extended
with the written consent of each of the Lenders, such later date as to
which the Termination Date may be extended.
"Voting Stock" means, with respect to any Person, capital
stock issued by such Person the holders of which are ordinarily, in the
absence of contingencies, entitled to vote for the election of
directors (or persons performing similar functions) of such Person,
even though the right so to vote has been suspended by the happening of
such a contingency.
"Wal*Mart License Agreement" means the agreement, dated July
29, 1992, between Wal*Mart Stores, Inc. and American Studios, Inc., as
the same may be amended, modified or supplemented from time to time and
any other agreements entered into from time to time between the
Borrower (or its Subsidiaries) and Wal*Mart Stores, Inc. granting the
Borrower or its Subsidiaries the right to operate retail portrait
photography studios in Wal*Mart stores in the United States and Canada.
"Wholly Owned Subsidiary" of any Person means any Subsidiary
100% of whose Voting Stock or other equity interests is at the time
owned by such Person directly or indirectly through other Wholly Owned
Subsidiaries.
1.2 COMPUTATION OF TIME PERIODS.
For purposes of computation of periods of time hereunder, the
word "from" means "from and including" and the words "to" and "until" each mean
"to but excluding."
1.3 ACCOUNTING TERMS.
Except as otherwise expressly provided herein, all accounting
terms used herein shall be interpreted, and all financial statements and
certificates and reports as to financial matters required to be delivered to the
Lenders hereunder shall be prepared, in accordance with GAAP
23
<PAGE>
applied on a consistent basis. All calculations made for the purposes of
determining compliance with this Credit Agreement shall (except as otherwise
expressly provided herein) be made by application of GAAP applied on a basis
consistent with the most recent annual or quarterly financial statements
delivered pursuant to Section 7.1 hereof (or, prior to the delivery of the first
financial statements pursuant to Section 7.1 hereof, consistent with the annual
audited financial statements referenced in Section 6.1(i)); provided, however,
if (a) the Borrower shall object to determining such compliance on such basis at
the time of delivery of such financial statements due to any change in GAAP or
the rules promulgated with respect thereto or (b) the Agent or the Required
Lenders shall so object in writing within 30 days after delivery of such
financial statements, then such calculations shall be made on a basis consistent
with the most recent financial statements delivered by the Borrower to the
Lenders as to which no such objection shall have been made.
SECTION 2
CREDIT FACILITIES
2.1 REVOLVING LOANS.
(a) Revolving Commitment. During the Commitment Period, subject to the
terms and conditions hereof, each Lender severally agrees to make revolving
credit loans (the "Revolving Loans") to the Borrower from time to time in the
amount of such Lender's Revolving Commitment Percentage of such Revolving Loans
for the purposes hereinafter set forth; provided that (i) with regard to the
Lenders collectively, the aggregate principal amount of Obligations under
Revolving Loans and the LOC Obligations outstanding at any time shall not exceed
TWENTY-FIVE MILLION DOLLARS ($25,000,000) (as referenced on Schedule 2.1(a), the
"Revolving Committed Amount") and (ii) with regard to each Lender individually,
such Lender's Revolving Commitment Percentage of Obligations under Revolving
Loans and the LOC Obligations outstanding at any time shall not exceed such
Lender's Revolving Committed Amount. Revolving Loans may consist of Base Rate
Loans or Eurodollar Loans, or a combination thereof, as the Borrower may
request, and may be repaid and reborrowed in accordance with the provisions
hereof.
(b) Revolving Loan Borrowings.
(i) Notice of Borrowing. The Borrower shall request a
Revolving Loan borrowing by written notice (or telephone notice
promptly confirmed in writing) to the Agent not later than 11:00 A.M.
(Charlotte, North Carolina time) on the date of the requested borrowing
(which shall be a Business Day) in the case of Base Rate Loans, and on
the third Business Day prior to the date of the requested borrowing in
the case of Eurodollar Loans. Each such request for borrowing shall be
irrevocable and shall specify (A) that a Revolving Loan is requested
(B) the date of the requested borrowing (which shall be a Business
Day), (C) the aggregate principal amount to be borrowed, and (D)
whether the borrowing shall be comprised of Base Rate Loans, Eurodollar
Loans or a combination thereof, and if Eurodollar Loans are requested,
the Interest Period(s) therefor. If the
24
<PAGE>
Borrower shall fail to specify in any such Notice of Borrowing
(I) an applicable Interest Period in the case of a Eurodollar Loan,
then such notice shall be deemed to be a request for an Interest Period
of one month, or (II) the type of Revolving Loan requested, then such
notice shall be deemed to be a request for a Base Rate Loan hereunder.
The Agent shall give notice to each Lender promptly upon receipt of
each Notice of Borrowing pursuant to this Section 2.1(b)(i), the
contents thereof and each such Lender's share of any borrowing to be
made pursuant thereto.
(ii) Minimum Amounts. Each Revolving Loan shall be in a
minimum aggregate principal amount of $1,000,000, in the case of
Eurodollar Loans, or $500,000 (or the remaining Revolving Committed
Amount, if less), in the case of Base Rate Loans, and integral
multiples of $500,000 in excess thereof.
(iii) Advances. Each Lender will make its Revolving Commitment
Percentage of each Revolving Loan borrowing available to the Agent for
the account of the Borrower as specified in Section 3.14(a), or in such
other manner as the Agent may specify in writing, by 1:00 P.M.
(Charlotte, North Carolina time) on the date specified in the
applicable Notice of Borrowing (or the date on which a borrowing is
deemed requested pursuant to Section 2.2(e) hereof) in Dollars and in
funds immediately available to the Agent. Such borrowing will then be
made available to the Borrower by the Agent by crediting the account of
the Borrower on the books of the Agent with the aggregate of the
amounts made available to the Agent by the Lenders and in like funds as
received by the Agent.
(c) Repayment. The principal amount of all Revolving Loans shall be due
and payable in full on the Termination Date.
(d) Interest. Subject to the provisions of Section 3.1,
(i) Base Rate Loans. During such periods as Revolving Loans
shall be comprised in whole or in part of Base Rate Loans, such Base
Rate Loans shall bear interest at a per annum rate equal to the Base
Rate plus the Applicable Percentage; and
(ii) Eurodollar Loans. During such periods as Revolving Loans
shall be comprised in whole or in part of Eurodollar Loans, such
Eurodollar Loans shall bear interest at a per annum rate equal to the
Eurodollar Rate plus the Applicable Percentage.
Interest on Revolving Loans shall be payable in arrears on each
applicable Interest Payment Date (or at such other times as may be
specified herein).
(e) Revolving Notes. The Revolving Loans shall be evidenced by a duly
executed Revolving Note in favor of each Lender.
(f) Maximum Number of Eurodollar Loans. The Borrower will be limited to
a maximum number of eight (8) Eurodollar Loans outstanding at any time. For
purposes hereof, Eurodollar
25
<PAGE>
Loans with separate or different Interest Periods will be considered as separate
Eurodollar Loans even if their Interest Periods expire on the same date.
2.2 LETTER OF CREDIT SUBFACILITY.
(a) Issuance. During the Commitment Period, subject to the terms and
conditions hereof and of the LOC Documents, if any, and such other terms and
conditions which the Issuing Lender may reasonably require, the Issuing Lender
shall issue, and the Lenders shall participate in, such Letters of Credit as the
Borrower may request (or have requested in the case of Closing Date Letters of
Credit) for its own account or for the account of another Credit Party as
provided herein, in a form acceptable to the Issuing Lender, for the purposes
hereinafter set forth; provided that (i) the aggregate amount of LOC Obligations
shall not exceed FIVE MILLION DOLLARS ($5,000,000) at any time (the "LOC
Committed Amount"), (ii) with regard to the Lenders collectively, the aggregate
principal amount of Obligations under Revolving Loans and the LOC Obligations
outstanding at any time shall not exceed the Aggregate Revolving Committed
Amount and (iii) with regard to each Lender individually, such Lender's
Revolving Commitment Percentage of Obligations under Revolving Loans and the LOC
Obligations outstanding at any time shall not exceed such Lender's Revolving
Committed Amount. Letters of Credit issued hereunder shall not have an original
expiry date more than one year from the date of issuance or extension, nor an
expiry date, whether as originally issued or by extension, extending beyond the
Termination Date. Each Letter of Credit shall comply with the related LOC
Documents. The issuance date of each Letter of Credit shall be a Business Day.
(b) Notice and Reports. Except for Closing Date Letters of Credit
described on Schedule 2.2(b)-1, the request for the issuance of a Letter of
Credit shall be submitted by the Borrower to the Issuing Lender at least three
(3) Business Days prior to the requested date of issuance (or such shorter
period as may be agreed by the Issuing Lender. A form of Notice of Request for
Letter of Credit is attached as Schedule 2.2(b)-2. The Issuing Lender will
provide to the Agent at least monthly, and more frequently upon request, a
detailed summary report on its Letters of Credit and the activity thereon, in
form and substance acceptable to the Agent.
(c) Participation. Each Lender, upon issuance of a Letter of Credit
(or, as of the Closing Date, in the case of the Closing Date Letters of Credit),
shall be deemed to have purchased without recourse a participation from the
applicable Issuing Lender in such Letter of Credit and the obligations arising
thereunder, in each case in an amount equal to its pro rata share of the
obligations under such Letter of Credit (based on the respective Commitment
Percentages of the Lenders) and shall absolutely, unconditionally and
irrevocably assume, as primary obligor and not as surety, and be obligated to
pay to the Issuing Lender therefor and discharge when due, its pro rata share of
the obligations arising under such Letter of Credit. Without limiting the scope
and nature of each Lender's participation in any Letter of Credit, to the extent
that the Issuing Lender has not been reimbursed as required hereunder or under
any such Letter of Credit, each such Lender shall pay to the Issuing Lender its
pro rata share of such unreimbursed drawing in same day funds on the day of
notification by the Issuing Lender of an unreimbursed drawing pursuant to the
provisions of subsection (d) hereof. The obligation of each Lender to so
reimburse
26
<PAGE>
the Issuing Lender shall be absolute and unconditional and shall not be affected
by the occurrence of a Default, an Event of Default or any other occurrence or
event. Any such reimbursement shall not relieve or otherwise impair the
obligation of the Borrower to reimburse the Issuing Lender under any Letter of
Credit, together with interest as hereinafter provided. As of the Closing Date,
each Closing Date Letter of Credit shall be deemed for all purposes of the
Credit Agreement and the other Credit Documents to be a Letter of Credit.
(d) Reimbursement. In the event of any drawing under any Letter of
Credit, the Issuing Lender will promptly notify the Borrower. Unless the
Borrower shall immediately notify the Issuing Lender that the Borrower intends
to otherwise reimburse the Issuing Lender for such drawing, the Borrower shall
be deemed to have requested that the Lenders make a Revolving Loan in the amount
of the drawing as provided in subsection (e) hereof on the related Letter of
Credit, the proceeds of which will be used to satisfy the related reimbursement
obligations. The Borrower promises to reimburse the Issuing Lender on the day of
drawing under any Letter of Credit (either with the proceeds of a Revolving Loan
obtained hereunder or otherwise) in same day funds. If the Borrower shall fail
to reimburse the Issuing Lender as provided hereinabove, the unreimbursed amount
of such drawing shall bear interest at a per annum rate equal to the Base Rate
plus the sum of (i) the Applicable Percentage and (ii) two percent (2%). The
Borrower's reimbursement obligations hereunder shall be absolute and
unconditional under all circumstances irrespective of any rights of setoff,
counterclaim or defense to payment the Borrower may claim or have against the
Issuing Lender, the Agent, the Lenders, the beneficiary of the Letter of Credit
drawn upon or any other Person, including without limitation any defense based
on any failure of the Borrower or any other Credit Party to receive
consideration or the legality, validity, regularity or unenforceability of the
Letter of Credit. The Issuing Lender will promptly notify the other Lenders of
the amount of any unreimbursed drawing and each Lender shall promptly pay to the
Agent for the account of the Issuing Lender in Dollars and in immediately
available funds, the amount of such Lender's pro rata share of such unreimbursed
drawing. Such payment shall be made on the day such notice is received by such
Lender from the Issuing Lender if such notice is received at or before 2:00 P.M.
(Charlotte, North Carolina time) otherwise such payment shall be made at or
before 12:00 Noon (Charlotte, North Carolina time) on the Business Day next
succeeding the day such notice is received. If such Lender does not pay such
amount to the Issuing Lender in full upon such request, such Lender shall, on
demand, pay to the Agent for the account of the Issuing Lender interest on the
unpaid amount during the period from the date of such drawing until such Lender
pays such amount to the Issuing Lender in full at a rate per annum equal to, if
paid within three (3) Business Days of the date that such Lender is required to
make payments of such amount pursuant to the preceding sentence, the Federal
Funds Rate and thereafter at a rate equal to the Base Rate. Each Lender's
obligation to make such payment to the Issuing Lender, and the right of the
Issuing Lender to receive the same, shall be absolute and unconditional, shall
not be affected by any circumstance whatsoever and without regard to the
termination of this Credit Agreement or the Commitments hereunder, the existence
of a Default or Event of Default or the acceleration of the obligations of the
Borrower hereunder and shall be made without any offset,
27
<PAGE>
abatement, withholding or reduction whatsoever. Simultaneously with the making
of each such payment by a Lender to the Issuing Lender, such Lender shall,
automatically and without any further action on the part of the Issuing Lender
or such Lender, acquire a participation in an amount equal to such payment
(excluding the portion of such payment constituting interest owing to the
Issuing Lender) in the related unreimbursed drawing portion of the LOC
Obligation and in the interest thereon and in the related LOC Documents, and
shall have a claim against the Borrower with respect thereto.
(e) Repayment with Revolving Loans. On any day on which the Borrower
shall have requested, or been deemed to have requested, a Revolving Loan to
reimburse a drawing under a Letter of Credit, the Agent shall give notice to the
Lenders that a Revolving Loan has been requested or deemed requested by the
Borrower to be made in connection with a drawing under a Letter of Credit, in
which case a Revolving Loan comprised of Base Rate Loans (or Eurodollar Loans to
the extent the Borrower has complied with the procedures of Section 2.1(b)(i)
with respect thereto) shall be immediately made to the Borrower by all Lenders
(notwithstanding any termination of the Commitments pursuant to Section 9.2) pro
rata based on the respective Commitment Percentages of the Lenders (determined
before giving effect to any termination of the Commitments pursuant to Section
9.2) and the proceeds thereof shall be paid directly to the Issuing Lender for
application to the respective LOC Obligations. Each such Lender hereby
irrevocably agrees to make its pro rata share of each such Revolving Loan
immediately upon any such request or deemed request in the amount, in the manner
and on the date specified in the preceding sentence notwithstanding (i) the
amount of such borrowing may not comply with the minimum amount for advances of
Revolving Loans otherwise required hereunder, (ii) whether any conditions
specified in Section 5.2 are then satisfied, (iii) whether a Default or an Event
of Default then exists, (iv) failure for any such request or deemed request for
Revolving Loan to be made by the time otherwise required hereunder, (v) whether
the date of such borrowing is a date on which Revolving Loans are otherwise
permitted to be made hereunder or (vi) any termination of the Commitments
relating thereto immediately prior to or contemporaneously with such borrowing.
In the event that any Revolving Loan cannot for any reason be made on the date
otherwise required above (including, without limitation, as a result of the
commencement of a proceeding under the Bankruptcy Code with respect to the
Borrower or any Credit Party), then each such Lender hereby agrees that it shall
forthwith purchase (as of the date such borrowing would otherwise have occurred,
but adjusted for any payments received from the Borrower on or after such date
and prior to such purchase) from the Issuing Lender such participation in the
outstanding LOC Obligations as shall be necessary to cause each such Lender to
share in such LOC Obligations ratably (based upon the respective Commitment
Percentages of the Lenders (determined before giving effect to any termination
of the Commitments pursuant to Section 9.2)), provided that in the event such
payment is not made on the day of drawing, such Lender shall pay in addition to
the Issuing Lender interest on the amount of its unfunded Participation Interest
at a rate equal to, if paid within three (3) Business Days of the date of
drawing, the Federal Funds Rate, and thereafter at the Base Rate.
(f) Designation of other Credit Parties as Account Parties.
Notwithstanding anything to the contrary set forth in this Credit Agreement,
including without limitation Section 2.2(a) hereof, a Letter of Credit hereunder
may contain a statement to the effect that such Letter of Credit is issued for
the account of a Credit Party other than the Borrower, provided that
notwithstanding such
28
<PAGE>
statement, the Borrower shall be the actual account party for all purposes of
this Credit Agreement for such Letter of Credit and such statement shall not
affect the Borrower's reimbursement obligations hereunder with respect to such
Letter of Credit.
(g) Renewal, Extension. The renewal or extension of any Letter of
Credit shall, for purposes hereof, be treated in all respects the same as the
issuance of a new Letter of Credit hereunder.
(h) Uniform Customs and Practices. The Issuing Lender may have the
Letters of Credit be subject to The Uniform Customs and Practice for Documentary
Credits, as published as of the date of issue by the International Chamber of
Commerce (the "UCP"), in which case the UCP may be incorporated therein and
deemed in all respects to be a part thereof.
(i) Indemnification; Nature of Issuing Lender's Duties.
(i) In addition to its other obligations under this Section
2.2, the Borrower hereby agrees to protect, indemnify, pay and save the
Issuing Lender harmless from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including
reasonable attorneys' fees) that the Issuing Lender may incur or be
subject to as a consequence, direct or indirect, of (A) the issuance of
any Letter of Credit or (B) the failure of the Issuing Lender to honor
a drawing under a Letter of Credit as a result of any act or omission,
whether rightful or wrongful, of any present or future de jure or de
facto government or governmental authority (all such acts or omissions,
herein called "Government Acts").
(ii) As between the Borrower and the Issuing Lender, the
Borrower shall assume all risks of the acts, omissions or misuse of any
Letter of Credit by the beneficiary thereof. The Issuing Lender shall
not be responsible: (A) for the form, validity, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any party in
connection with the application for and issuance of any Letter of
Credit, even if it should in fact prove to be in any or all respects
invalid, fraudulent or forged; (B) for the validity or sufficiency of
any instrument transferring or assigning or purporting to transfer or
assign any Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in whole or in part, that may prove to be invalid or
ineffective for any reason; (C) for errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail, cable,
telegraph, telex or otherwise, whether or not they be in cipher; (D)
for any loss or delay in the transmission or otherwise of any document
required in order to make a drawing under a Letter of Credit or of the
proceeds thereof; and (E) for any consequences arising from causes
beyond the control of the Issuing Lender, including, without
limitation, any Government Acts. None of the above shall affect,
impair, or prevent the vesting of the Issuing Lender's rights or powers
hereunder.
29
<PAGE>
(iii) In furtherance and extension of, and not in limitation
of, the specific provisions hereinabove set forth, any action taken or
omitted by the Issuing Lender, under or in connection with any Letter
of Credit or the related certificates, if taken or omitted in good
faith and without gross negligence or willful misconduct, shall not put
such Issuing Lender under any resulting liability to the Borrower or
any other Credit Party. It is the intention of the parties that this
Credit Agreement shall be construed and applied to protect and
indemnify the Issuing Lender against any and all risks involved in the
issuance of the Letters of Credit, all of which risks are hereby
assumed by the Borrower (on behalf of itself and each of the other
Credit Parties), including, without limitation, any and all Government
Acts. The Issuing Lender shall not, in any way, be liable for any
failure by the Issuing Lender or anyone else to pay any drawing under
any Letter of Credit as a result of any Government Acts or any other
cause beyond the control of the Issuing Lender.
(iv) Nothing in this subsection (i) is intended to limit the
reimbursement obligations of the Borrower contained in subsection (d)
above. The obligations of the Borrower under this subsection (i) shall
survive the termination of this Credit Agreement. No act or omissions
of any current or prior beneficiary of a Letter of Credit shall in any
way affect or impair the rights of the Issuing Lender to enforce any
right, power or benefit under this Credit Agreement.
(v) Notwithstanding anything to the contrary contained in this
subsection (i), the Borrower shall have no obligation to indemnify the
Issuing Lender in respect of any liability incurred by the Issuing
Lender (A) arising solely out of the gross negligence or willful
misconduct of the Issuing Lender, as determined by a court of competent
jurisdiction, or (B) caused by the Issuing Lender's failure to pay
under any Letter of Credit after presentation to it of a request
strictly complying with the terms and conditions of such Letter of
Credit, as determined by a court of competent jurisdiction, unless such
payment is prohibited by any law, regulation, court order or decree.
(j) Responsibility of Issuing Lender. It is expressly understood and
agreed that the obligations of the Issuing Lender hereunder to the Lenders are
only those expressly set forth in this Credit Agreement and that the Issuing
Lender shall be entitled to assume that the conditions precedent set forth in
Section 5.2 have been satisfied unless it shall have acquired actual knowledge
that any such condition precedent has not been satisfied; provided, however,
that nothing set forth in this Section 2.2 shall be deemed to prejudice the
right of any Lender to recover from the Issuing Lender any amounts made
available by such Lender to the Issuing Lender pursuant to this Section 2.2 in
the event that it is determined by a court of competent jurisdiction that the
payment with respect to a Letter of Credit constituted gross negligence or
willful misconduct on the part of the Issuing Lender.
(k) Conflict with LOC Documents. In the event of any conflict between
this Credit Agreement and any LOC Document (including any letter of credit
application), this Credit Agreement shall control.
30
<PAGE>
2.3 TERM LOANS.
(a) Term Loans. Subject to the terms and conditions set forth herein
(including specifically without limitation the satisfaction of each of the
conditions contained in Section 5 hereof), each Lender severally agrees, on the
Closing Date, to make a term loan (collectively, the "Term Loans") to the
Borrower, in Dollars, in an amount equal to such Lender's Commitment Percentage,
if any, of the Term Loan Committed Amount; provided that the aggregate amount of
such Term Loans made on the Closing Date shall not exceed the Aggregate Term
Loan Committed Amount. No Term Loans shall be made after the Closing Date. Once
repaid, Term Loans cannot be reborrowed.
(b) Funding of Term Loans. On the Closing Date, each applicable Lender
will make its Commitment Percentage of the Term Loans available to the Agent by
deposit, in Dollars and in immediately available funds, at the offices of the
Agent at its principal office in Charlotte, North Carolina or at such other
address as the Agent may designate in writing. The amount of the Term Loans will
then be made available to the Borrower by the Agent by crediting the account of
the Borrower on the books of such office of the Agent, to the extent the amount
of such Term Loans is made available to the Agent. The Term Loans shall
initially bear interest at the Eurodollar Rate plus the Applicable Percentage.
No Lender shall be responsible for the failure or delay by any other
Lender in its obligation to make a Term Loan hereunder; provided, however, that
the failure of any Lender to fulfill its obligations hereunder shall not relieve
any other Lender of its obligations hereunder. If the Agent shall have received
an executed signature page to this Credit Agreement (whether an original or via
telecopy) from a Lender, the Agent may assume that such Lender has or will make
the amount of its Term Loans available to the Agent on the Closing Date, and the
Agent in reliance upon such assumption, may (in its sole discretion but without
any obligation to do so) make available to the Borrower a corresponding amount.
If such corresponding amount is not in fact made available to the Agent, the
Agent shall be able to recover such corresponding amount from such Lender. If
such Lender shall fail to pay such corresponding amount forthwith upon the
Agent's demand therefor, the Agent will promptly notify the Borrower, and the
Borrower shall immediately pay such corresponding amount to the Agent. The Agent
shall also be entitled to recover from the Lender or the Borrower, as the case
may be, interest on such corresponding amount in respect of each day from the
date such corresponding amount was made available by the Agent to the Borrower
to the date such corresponding amount is recovered by the Agent at a per annum
rate equal to (i) from the Borrower at the applicable rate for such Term Loan
and (ii) from a Lender at the Federal Funds Rate.
(c) Amortization. The principal amount of the Term Loans shall be
repaid in quarterly installments on the dates set forth below:
31
<PAGE>
Principal Amortization Term Loan Principal
Payment Dates Amortization Payment
------------- --------------------
March 31, 1998 $1,250,000
June 30, 1998 $1,250,000
September 30, 1998 $2,500,000
December 31, 1998 $5,000,000
March 31, 1999 $1,875,000
June 30, 1999 $1,875,000
September 30, 1999 $3,750,000
December 31, 1999 $7,500,000
March 31, 2000 $2,500,000
June 30, 2000 $2,500,000
September 30, 2000 $5,000,000
December 31, 2000 $10,000,000
March 31, 2001 $2,500,000
June 30, 2001 $2,500,000
September 30, 2001 $5,000,000
December 31, 2001 $10,000,000
TOTAL $65,000,000
(d) Interest. Subject to the provisions of Section 3.1,
(i) Base Rate Loans. During such periods as Term Loans shall
be comprised in whole or in part of Base Rate Loans, such Base Rate
Loans shall bear interest at a per annum rate equal to the Base Rate
plus the Applicable Percentage; and
(ii) Eurodollar Loans. During such periods as Term Loans shall
be comprised in whole or in part of Eurodollar Loans, such Eurodollar
Loans shall bear interest at a per annum rate equal to the Eurodollar
Rate plus the Applicable Percentage.
Interest on Term Loans shall be payable in arrears on each applicable
Interest Payment Date (or at such other times as may be specified
herein).
(e) Term Notes. The Term Loans shall be evidenced by a duly executed
Term Note in favor of each Lender.
SECTION 3
OTHER PROVISIONS RELATING TO CREDIT FACILITIES
3.1 DEFAULT RATE.
Upon the occurrence, and during the continuance, of an Event of
Default, the principal of and, to the extent permitted by law, interest on the
Loans and any other amounts owing hereunder or under the other Credit Documents
shall bear interest, payable on demand, at a per annum rate 2%
32
<PAGE>
greater than the rate which would otherwise be applicable (or if no rate is
applicable, whether in respect of interest, fees or other amounts, then 2%
greater than the Base Rate).
3.2 EXTENSION AND CONVERSION.
Subject to the terms of Section 5.2, the Borrower shall have the
option, on any Business Day, to extend existing Loans into a subsequent
permissible Interest Period or to convert Loans into Loans of another interest
rate type; provided, however, that (i) except as provided in Section 3.8,
Eurodollar Loans may be converted into Base Rate Loans only on the last day of
the Interest Period applicable thereto, (ii) Eurodollar Loans may be extended,
and Base Rate Loans may be converted into Eurodollar Loans, only if no Default
or Event of Default is in existence on the date of extension or conversion,
(iii) Loans extended as, or converted into, Eurodollar Loans shall be subject to
the terms of the definition of "Interest Period" set forth in Section 1.1 and
shall be in a minimum aggregate principal amount of $1,000,000 and integral
multiples of $500,000 in excess thereof, and (iv) any request for extension or
conversion of a Eurodollar Loan which shall fail to specify an Interest Period
shall be deemed to be a request for an Interest Period of one month. Each such
extension or conversion shall be effected by the Borrower by giving a Notice of
Extension/Conversion (or telephone notice promptly confirmed in writing) to the
Agent prior to 11:00 A.M. (Charlotte, North Carolina time) on the Business Day
of, in the case of the conversion of a Eurodollar Loan into a Base Rate Loan,
and on the third Business Day prior to, in the case of the extension of a
Eurodollar Loan as, or conversion of a Base Rate Loan into, a Eurodollar Loan,
the date of the proposed extension or conversion, specifying the date of the
proposed extension or conversion, the Loans to be so extended or converted, the
types of Loans into which such Loans are to be converted and, if appropriate,
the applicable Interest Periods with respect thereto. Each request for extension
or conversion shall be irrevocable and shall constitute a representation and
warranty by the Borrower of the matters specified in subsections (a) through (d)
of Section 5.2. In the event the Borrower fails to request extension or
conversion of any Eurodollar Loan in accordance with this Section, or any such
conversion or extension is not permitted or required by this Section, then such
Eurodollar Loan shall be automatically converted into a Base Rate Loan at the
end of the Interest Period applicable thereto. The Agent shall give each Lender
notice as promptly as practicable of any such proposed extension or conversion
affecting any Loan. The Borrower will be limited to a maximum number of eight
(8) Eurodollar Loans outstanding at any time. For purposes hereof, Eurodollar
Loans with separate or different Interest Periods will be considered as separate
Eurodollar Loans even if their Interest Periods expire on the same date.
3.3 PREPAYMENTS.
(a) Voluntary Prepayments. The Loans may be repaid in whole or in part
without premium or penalty; provided that (i) Eurodollar Loans may be prepaid
only upon three (3) Business Days' prior written notice to the Agent and must be
accompanied by payment of any amounts owing under Section 3.11, (ii) partial
prepayments shall be minimum principal amounts of $1,000,000, in the case of
Eurodollar Loans, $1,000,000, in the case of Base Rate Loans and in integral
multiples of $500,000 in excess thereof and (iii) voluntary prepayments with
respect to the Term Loans shall be applied pro rata among each remaining
installment of principal.
33
<PAGE>
(b) Mandatory Prepayments. The Borrower will make the following
prepayments (to be applied as set forth in paragraph (c) below):
(i) Commitment Limitations. If at any time, (A) the aggregate
principal amount of Revolving Loans and the LOC Obligations shall
exceed the Aggregate Revolving Committed Amount or (B) the aggregate
amount of LOC Obligations shall exceed the LOC Committed Amount, the
Borrower shall immediately make payment on the Revolving Loans and/or
to a cash collateral account in respect of the LOC Obligations, in an
amount sufficient to eliminate the deficiency.
(ii) Asset Dispositions. The Borrower will make prepayment on
the Loans and/or to a cash collateral account in respect of LOC
Obligations in an amount equal to one hundred percent (100%) of the Net
Proceeds received from Asset Dispositions.
(iii) Equity Transactions. The Borrower will make prepayment
on the Loans and/or to a cash collateral account in respect of LOC
Obligations in an amount equal to one hundred percent (100%) of the Net
Proceeds received from any Equity Transaction (it being agreed that any
such payments required in connection with the issuance of stock under
stock incentive, stock option or other similar plans shall be made
quarterly within sixty days following the end of each quarter).
(iv) Excess Cash Flow. Within 10 days after the date the
audited financial statements are required to be delivered pursuant to
Section 7.1(a) (commencing with the fiscal year ending January 31,
1998), the Borrower shall make a prepayment on the Loans and/or to a
cash collateral account in respect of the LOC Obligations in an amount
equal to (A) 75% of Consolidated Excess Cash Flow for the fiscal year
most recently ended less (B) any voluntary prepayments (other than
voluntary prepayments of loans outstanding under revolving lines of
credit, including Revolving Loans hereunder, unless there is a
corresponding permanent reduction in the commitments relating thereto)
on Funded Debt made during such fiscal year.
(c) Application of Prepayments. All amounts required to be
paid pursuant to Section 3.3(b)(i) shall be applied first to
Revolving Loans and second to a cash collateral account in respect
of LOC Obligations. All amounts required to be prepaid pursuant to
Section 3.3(b)(ii) and (iii) above shall be paid promptly upon
receipt of the amounts to be prepaid. All amounts required to be
prepaid pursuant to Section 3.3(b)(ii), (iii) and (iv) above shall
be applied first to the Term Loans, second to the Revolving Loans
(with a corresponding reduction in the Aggregate Revolving
Committed Amount) and third to a cash collateral account in
respect of the LOC Obligations; provided, however, such reduction
in the Aggregate Revolving Committed Amount shall not be required
if no Default or Event of Default exists hereunder at the time of
such prepayment. Amounts applied to the Term Loans will reduce pro
rata each remaining installment of principal. Within the
parameters of the application set forth above, prepayments shall
be applied first to Base Rate Loans and
34
<PAGE>
then to Eurodollar Loans in direct order of Interest Period
maturities. All prepayments hereunder shall be subject to Section
3.11.
3.4 TERMINATION AND REDUCTION OF COMMITMENTS
(a) Voluntary Reductions. The Revolving Commitments may be terminated
or permanently reduced in whole or in part upon three (3) Business Days' prior
written notice to the Agent, provided that (i) after giving effect to any
voluntary reduction the aggregate amount of Obligations under Revolving Loans
and the LOC Obligations outstanding shall not exceed the Aggregate Revolving
Committed Amount, as reduced, and (ii) partial reductions shall be in a minimum
principal amount of $2,000,000, and in integral multiples of $1,000,000 in
excess thereof.
(b) Mandatory Reduction. The Revolving Commitments hereunder shall
terminate on the Termination Date.
3.5 FEES.
(a) Commitment Fee. In consideration of the Revolving Commitments
hereunder, the Borrower agrees to pay to the Agent for the ratable benefit of
the Lenders a commitment fee (the "Commitment Fee") equal to 0.50% per annum on
the average daily unused amount of the Revolving Committed Amount for the
applicable period. The Commitment Fee shall be payable quarterly in arrears on
the 15th day following the last day of each calendar quarter for the immediately
preceding quarter (or portion thereof) beginning with the first such date to
occur after the Closing Date and on the Termination Date.
(b) Letter of Credit Fees.
(i) Letter of Credit Fee. In consideration of the LOC
Commitment hereunder, the Borrower agrees to pay to the Agent for the
ratable benefit of the Lenders a fee (the "Letter of Credit Fee") equal
to the Applicable Percentage per annum for Eurodollar Loans on the
average daily maximum amount available to be drawn under Letters of
Credit from the date of issuance to the date of expiration. The Letter
of Credit Fee shall be payable quarterly in arrears on the 15th day
following the last day of each calendar quarter for the immediately
preceding quarter (or portion thereof) beginning with the first such
date to occur after the Closing Date and on the applicable date of
expiration.
(ii) Issuing Lender Fee. In addition to the Letter of Credit
Fee, the Borrower agrees to pay to the Issuing Lender for its own
account without sharing by the other Lenders (A) such fronting and
negotiation fees as may be mutually agreed upon by the Issuing Lender
and the Borrower from time to time and (B) customary charges of the
Issuing Lender with respect to the issuance, amendment, transfer,
administration, cancellation and conversion of, and drawings under,
such Letters of Credit (collectively, the "Issuing Lender Fees").
35
<PAGE>
(c) Administrative Fees. The Borrower agrees to pay to the Agent, for
its own account, an annual administrative fee and such other fees, if any,
referred to in the Agent's Fee Letter (collectively, the "Agent Fees").
3.6 CAPITAL ADEQUACY.
If any Lender has determined, after the date hereof, that the adoption
or the becoming effective of, or any change in, or any change by any
Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof in the interpretation or administration
of, any applicable law, rule or regulation regarding capital adequacy, or
compliance by such Lender with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such authority, central
bank or comparable agency, has or would have the effect of reducing the rate of
return on such Lender's capital or assets as a consequence of its commitments or
obligations hereunder to a level below that which such Lender could have
achieved but for such adoption, effectiveness, change or compliance (taking into
consideration such Lender's policies with respect to capital adequacy), then,
upon notice from such Lender to the Borrower, the Borrower shall be obligated to
pay within thirty days of demand therefor to such Lender such additional amount
or amounts as will compensate such Lender for such reduction. The Lender shall
provide the Borrower notice of any such claim within ninety days of the
occurrence of any event constituting the basis for such claim. Each
determination by any such Lender of amounts owing under this Section shall,
absent manifest error, be conclusive and binding on the parties hereto.
3.7 INABILITY TO DETERMINE INTEREST RATE.
If prior to the first day of any Interest Period, the Agent shall have
determined (which determination shall be conclusive and binding upon the
Borrower) that, by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining the Eurodollar Rate
for such Interest Period, the Agent shall give telecopy or telephonic notice
thereof to the Borrower and the Lenders as soon as practicable thereafter. If
such notice is given (a) any Eurodollar Loans requested to be made on the first
day of such Interest Period shall be made as Base Rate Loans and (b) any Loans
that were to have been converted on the first day of such Interest Period to or
continued as Eurodollar Loans shall be converted to or continued as Base Rate
Loans. Until such notice has been withdrawn by the Agent, no further Eurodollar
Loans shall be made or continued as such, nor shall the Borrower have the right
to convert Base Rate Loans to Eurodollar Loans.
3.8 ILLEGALITY.
Notwithstanding any other provision herein, if the adoption of or any
change in any Requirement of Law or in the interpretation or application thereof
occurring after the Closing Date shall make it unlawful for any Lender to make
or maintain Eurodollar Loans as contemplated by this Credit Agreement, (a) such
Lender shall promptly give written notice of such circumstances to the Borrower
and the Agent (which notice shall be withdrawn whenever such circumstances no
longer exist), (b) the commitment of such Lender hereunder to make Eurodollar
Loans, continue
36
<PAGE>
Eurodollar Loans as such and convert a Base Rate Loan to Eurodollar Loans shall
forthwith be canceled and, until such time as it shall no longer be unlawful for
such Lender to make or maintain Eurodollar Loans, such Lender shall then have a
commitment only to make a Base Rate Loan when a Eurodollar Loan is requested and
(c) such Lender's Loans then outstanding as Eurodollar Loans, if any, shall be
converted automatically to Base Rate Loans on the respective last days of the
then current Interest Periods with respect to such Loans or within such earlier
period as required by law. If any such conversion of a Eurodollar Loan occurs on
a day which is not the last day of the then current Interest Period with respect
thereto, the Borrower shall pay to such Lender such amounts, if any, as may be
required pursuant to Section 3.11.
3.9 REQUIREMENTS OF LAW.
If, after the date hereof, the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof applicable to
any Lender, or compliance by any Lender with any request or directive (whether
or not having the force of law) from any central bank or other Governmental
Authority, in each case made subsequent to the Closing Date (or, if later, the
date on which such Lender becomes a Lender):
(a) shall subject such Lender to any tax of any kind
whatsoever with respect to any Letter of Credit, any Eurodollar Loans
made by it or its obligation to make Eurodollar Loans, or change the
basis of taxation of payments to such Lender in respect thereof (except
for (i) Non-Excluded Taxes covered by Section 3.10 (including
Non-Excluded Taxes imposed solely by reason of any failure of such
Lender to comply with its obligations under Section 3.10(b)) and (ii)
changes in taxes measured by or imposed upon the overall net income, or
franchise tax (imposed in lieu of such net income tax), of such Lender
or its applicable lending office, branch, or any affiliate thereof));
(b) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the Eurodollar Rate
hereunder; or
(c) shall impose on such Lender any other condition (excluding
any tax of any kind whatsoever);
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or issuing or participating in
Letters of Credit or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, upon notice to the Borrower from such Lender,
through the Agent, in accordance herewith, the Borrower shall be obligated to
pay within 30 days of demand therefor to such Lender, any additional amounts
necessary to compensate such Lender for such increased cost or reduced amount
receivable, provided that, in any such case, the Borrower may elect to convert
the Eurodollar Loans made by such Lender hereunder to Base Rate Loans by giving
the Agent at least one Business Day's notice of such election, in which case the
Borrower
37
<PAGE>
shall promptly pay to such Lender, upon demand, without duplication, such
amounts, if any, as may be required pursuant to Section 3.11. The Lender shall
provide the Borrower notice of any such claim within ninety days of the
occurrence of any event constituting the basis for such claim. If any Lender
becomes entitled to claim any additional amounts pursuant to this subsection, it
shall provide prompt notice thereof to the Borrower, through the Agent,
certifying (x) that one of the events described in this paragraph has occurred
and describing in reasonable detail the nature of such event, (y) as to the
increased cost or reduced amount resulting from such event and (z) as to the
additional amount demanded by such Lender and a reasonably detailed explanation
of the calculation thereof. Such a certificate as to any additional amounts
payable pursuant to this subsection submitted by such Lender, through the Agent,
to the Borrower shall be conclusive and binding on the parties hereto in the
absence of manifest error. This covenant shall survive the termination of this
Credit Agreement and the payment of the Loans and all other amounts payable
hereunder.
3.10 TAXES.
(a) Except as provided below in this subsection, all payments made by
the Borrower under this Credit Agreement and any Notes shall be made free and
clear of, and without deduction or withholding for or on account of, any present
or future income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any court, or governmental body, agency or other
official, excluding taxes measured by or imposed upon the overall net income of
any Lender or its applicable lending office, or any branch or affiliate thereof,
and all franchise taxes, branch taxes, taxes on doing business or taxes on the
overall capital or net worth of any Lender or its applicable lending office, or
any branch or affiliate thereof imposed: (i) by the jurisdiction under the laws
of which such Lender, applicable lending office, branch or affiliate is
organized or is located, or in which its principal executive office is located,
or any nation within which such jurisdiction is located or any political
subdivision thereof; or (ii) by reason of any connection between the
jurisdiction imposing such tax and such Lender, applicable lending office,
branch or affiliate other than a connection arising solely from such Lender
having executed, delivered or performed its obligations, or received payment
under or enforced, this Credit Agreement or any Notes. If any such non-excluded
taxes, levies, imposts, duties, charges, fees, deductions or withholdings
("Non-Excluded Taxes") are required to be withheld from any amounts payable to
the Agent or any Lender hereunder or under any Notes, (A) the amounts so payable
to the Agent or such Lender shall be increased to the extent necessary to yield
to the Agent or such Lender (after payment of all Non-Excluded Taxes) interest
or any such other amounts payable hereunder at the rates or in the amounts
specified in this Credit Agreement and any Notes, provided, however, that the
Borrower shall be entitled to deduct and withhold any Non-Excluded Taxes and
shall not be required to increase any such amounts payable to any Lender that is
not organized under the laws of the United States of America or a state thereof
if such Lender fails to comply with the requirements of paragraph (b) of this
subsection whenever any Non-Excluded Taxes are payable by the Borrower, and (B)
as promptly as possible thereafter the Borrower shall send to the Agent for its
own account or for the account of such Lender, as the case may be, a certified
copy of an original official receipt received by the Borrower showing payment
thereof. If the Borrower fails to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to the Agent the required
38
<PAGE>
receipts or other required documentary evidence, the Borrower shall indemnify
the Agent and the Lenders for any incremental taxes, interest or penalties that
may become payable by the Agent or any Lender as a result of any such failure.
The agreements in this subsection shall survive the termination of this Credit
Agreement and the payment of the Loans and all other amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof shall:
(X)(i) on or before the date of any payment by the Borrower
under this Credit Agreement or Notes to such Lender, deliver to the
Borrower and the Agent (A) two (2) duly completed copies of United
States Internal Revenue Service Form 1001 or 4224, or successor
applicable form, as the case may be, certifying that it is entitled to
receive payments under this Credit Agreement and any Notes without
deduction or withholding of any United States federal income taxes and
(B) an Internal Revenue Service Form W-8 or W-9, or successor
applicable form, as the case may be, certifying that it is entitled to
an exemption from United States backup withholding tax;
(ii) deliver to the Borrower and the Agent two (2) further
copies of any such form or certification on or before the date that any
such form or certification expires or becomes obsolete and after the
occurrence of any event requiring a change in the most recent form
previously delivered by it to the Borrower; and
(iii) obtain such extensions of time for filing and complete
such forms or certifications as may reasonably be requested by the
Borrower or the Agent; or
(Y) in the case of any such Lender that is not a "bank" within
the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (i)
represent to the Borrower (for the benefit of the Borrower and the
Agent) that it is not a bank within the meaning of Section 881(c)(3)(A)
of the Internal Revenue Code, (ii) agree to furnish to the Borrower on
or before the date of any payment by the Borrower, with a copy to the
Agent two (2) accurate and complete original signed copies of Internal
Revenue Service Form W-8, or successor applicable form certifying to
such Lender's legal entitlement at the date of such certificate to an
exemption from U.S. withholding tax under the provisions of Section
881(c) of the Internal Revenue Code with respect to payments to be made
under this Credit Agreement and any Notes (and to deliver to the
Borrower and the Agent two (2) further copies of such form on or before
the date it expires or becomes obsolete and after the occurrence of any
event requiring a change in the most recently provided form and, if
necessary, obtain any extensions of time reasonably requested by the
Borrower or the Agent for filing and completing such forms), and (iii)
agree, to the extent legally entitled to do so, upon reasonable request
by the Borrower, to provide to the Borrower (for the benefit of the
Borrower and the Agent) such other forms as may be reasonably required
in order to establish the legal entitlement of such Lender to an
exemption from withholding with respect to payments under this Credit
Agreement and any Notes;
39
<PAGE>
unless in any such case any change in treaty, law or regulation has occurred
after the date such Person becomes a Lender hereunder which renders all such
forms inapplicable or which would prevent such Lender from duly completing and
delivering any such form with respect to it and such Lender so advises the
Borrower and the Agent. Each Person that shall become a Lender or a participant
of a Lender pursuant to subsection 11.3 shall, upon the effectiveness of the
related transfer, be required to provide all of the forms, certifications and
statements required pursuant to this subsection, provided that in the case of a
participant of a Lender the obligations of such participant of a Lender pursuant
to this subsection (b) shall be determined as if the participant of a Lender
were a Lender except that such participant of a Lender shall furnish all such
required forms, certifications and statements to the Lender from which the
related participation shall have been purchased.
3.11 INDEMNITY.
The Borrower promises to indemnify each Lender and to hold each Lender
harmless from any loss or expense which such Lender may sustain or incur (other
than through such Lender's gross negligence or willful misconduct) as a
consequence of (a) default by the Borrower in making a borrowing of, conversion
into or continuation of Eurodollar Loans after the Borrower has given a notice
requesting the same in accordance with the provisions of this Credit Agreement,
(b) default by the Borrower in making any prepayment of a Eurodollar Loan after
the Borrower has given a notice thereof in accordance with the provisions of
this Credit Agreement or (c) the making of a prepayment of Eurodollar Loans on a
day which is not the last day of an Interest Period with respect thereto. With
respect to Eurodollar Loans, such indemnification may include an amount equal to
the excess, if any, of (i) the amount of interest which would have accrued on
the amount so prepaid, or not so borrowed, converted or continued, for the
period from the date of such prepayment or of such failure to borrow, convert or
continue to the last day of the applicable Interest Period (or, in the case of a
failure to borrow, convert or continue, the Interest Period that would have
commenced on the date of such failure) in each case at the applicable rate of
interest for such Eurodollar Loans provided for herein (excluding, however, the
Applicable Percentage included therein, if any) over (ii) the amount of interest
(as reasonably determined by such Lender) which would have accrued to such
Lender on such amount by placing such amount on deposit for a comparable period
with leading banks in the interbank Eurodollar market. The covenants of the
Borrower set forth in this Section 3.11 shall survive the termination of this
Credit Agreement and the payment of the Loans and all other amounts payable
hereunder.
3.12 PRO RATA TREATMENT.
Except to the extent otherwise provided herein:
(a) Loans. Each Loan, each payment or prepayment of principal of any
Loan or reimbursement obligations arising from drawings under Letters of Credit,
each payment of interest on the Loans or reimbursement obligations arising from
drawings under Letters of Credit, each payment of Commitment Fees, each payment
of the Letter of Credit Fee, each reduction of the Revolving Committed Amount
and each conversion or extension of any Loan, shall be allocated
40
<PAGE>
pro rata among the Lenders in accordance with the respective principal amounts
of their outstanding Loans and Participation Interests.
(b) Advances. Unless the Agent shall have been notified in writing by
any Lender prior to a borrowing that such Lender will not make the amount that
would constitute its ratable share of such borrowing available to the Agent, the
Agent may assume that such Lender is making such amount available to the Agent,
and the Agent may, in reliance upon such assumption, make available to the
Borrower a corresponding amount. If such amount is not made available to the
Agent by such Lender within the time period specified therefor hereunder, such
Lender shall pay to the Agent, on demand, such amount with interest thereon at a
rate equal to the Federal Funds Rate for the period until such Lender makes such
amount immediately available to the Agent. A certificate of the Agent submitted
to any Lender with respect to any amounts owing under this subsection shall be
conclusive in the absence of manifest error.
3.13 SHARING OF PAYMENTS.
The Lenders agree among themselves that, in the event that any Lender
shall obtain payment in respect of any Loan, LOC Obligations or any other
obligation owing to such Lender under this Credit Agreement through the exercise
of a right of setoff, banker's lien or counterclaim, or pursuant to a secured
claim under Section 506 of Title 11 of the United States Code or other security
or interest arising from, or in lieu of, such secured claim, received by such
Lender under any applicable bankruptcy, insolvency or other similar law or
otherwise, or by any other means, in excess of its pro rata share of such
payment as provided for in this Credit Agreement, such Lender shall promptly
purchase from the other Lenders a participation in such Loans, LOC Obligations
and other obligations in such amounts, and make such other adjustments from time
to time, as shall be equitable to the end that all Lenders share such payment in
accordance with their respective ratable shares as provided for in this Credit
Agreement. The Lenders further agree among themselves that if payment to a
Lender obtained by such Lender through the exercise of a right of setoff,
banker's lien, counterclaim or other event as aforesaid shall be rescinded or
must otherwise be restored, each Lender which shall have shared the benefit of
such payment shall, by repurchase of a participation theretofore sold, return
its share of that benefit (together with its share of any accrued interest
payable with respect thereto) to each Lender whose payment shall have been
rescinded or otherwise restored. The Borrower agrees that any Lender so
purchasing such a participation may, to the fullest extent permitted by law,
exercise all rights of payment, including setoff, banker's lien or counterclaim,
with respect to such participation as fully as if such Lender were a holder of
such Loan, LOC Obligations or other obligation in the amount of such
participation. Except as otherwise expressly provided in this Credit Agreement,
if any Lender or the Agent shall fail to remit to the Agent or any other Lender
an amount payable by such Lender or the Agent to the Agent or such other Lender
pursuant to this Credit Agreement on the date when such amount is due, such
payments shall be made together with interest thereon for each date from the
date such amount is due until the date such amount is paid to the Agent or such
other Lender at a rate per annum equal to the Federal Funds Rate. If under any
applicable bankruptcy, insolvency or other similar law, any Lender receives a
secured claim in lieu of a setoff to which this Section 3.13 applies, such
Lender shall, to the extent practicable, exercise its rights in respect of such
secured
41
<PAGE>
claim in a manner consistent with the rights of the Lenders under this Section
3.13 to share in the benefits of any recovery on such secured claim.
3.14 PAYMENTS, COMPUTATIONS, ETC.
(a) Except as otherwise specifically provided herein, all payments
hereunder shall be made to the Agent in dollars in immediately available funds,
without offset, deduction, counterclaim or withholding of any kind, at the
Agent's office specified in Section 11.1 not later than 2:00 P.M. (Charlotte,
North Carolina time) on the date when due. Payments received after such time
shall be deemed to have been received on the next succeeding Business Day. The
Agent may (but shall not be obligated to) debit the amount of any such payment
which is not made by such time to any ordinary deposit account of the Borrower
maintained with the Agent (with notice to the Borrower). The Borrower shall, at
the time it makes any payment under this Credit Agreement, specify to the Agent
the Loans, LOC Obligations, Fees, interest or other amounts payable by the
Borrower hereunder to which such payment is to be applied (and in the event that
it fails so to specify, or if such application would be inconsistent with the
terms hereof, the Agent shall distribute such payment to the Lenders in such
manner as the Agent may determine to be appropriate in respect of obligations
owing by the Borrower hereunder, subject to the terms of Section 3.12(a)). The
Agent will distribute such payments to such Lenders, if any such payment is
received prior to 2:00 P.M. (Charlotte, North Carolina time) on a Business Day
in like funds as received prior to the end of such Business Day and otherwise
the Agent will distribute such payment to such Lenders on the next succeeding
Business Day. Whenever any payment hereunder shall be stated to be due on a day
which is not a Business Day, the due date thereof shall be extended to the next
succeeding Business Day (subject to accrual of interest and Fees for the period
of such extension), except that in the case of Eurodollar Loans, if the
extension would cause the payment to be made in the next following calendar
month, then such payment shall instead be made on the next preceding Business
Day. Except as expressly provided otherwise herein, all computations of interest
and fees shall be made on the basis of actual number of days elapsed over a year
of 360 days, except with respect to computation of interest on Base Rate Loans
which (unless the Base Rate is determined by reference to the Federal Funds
Rate) shall be calculated based on a year of 365 or 366 days, as appropriate.
Interest shall accrue from and include the date of borrowing, but exclude the
date of payment.
(b) Allocation of Payments After Event of Default. Notwithstanding any
other provisions of this Credit Agreement or any other Credit Document to the
contrary, after the occurrence and during the continuance of an Event of
Default, all amounts collected or received by the Agent or any Lender on account
of the Guaranteed Obligations or any other amounts outstanding under any of the
Credit Documents shall be paid over or delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket costs
and expenses (including without limitation reasonable attorneys' fees)
of the Agent in connection with enforcing the rights of the Lenders
under the Credit Documents;
SECOND, to payment of any fees owed to the Agent;
42
<PAGE>
THIRD, to the payment of all reasonable out-of-pocket costs
and expenses (including without limitation, reasonable attorneys' fees)
of each of the Lenders in connection with enforcing its rights under
the Credit Documents or otherwise with respect to the Obligations owing
to such Lender;
FOURTH, to the payment of all accrued interest and fees on or
in respect of the Obligations;
FIFTH, to the payment of the outstanding principal amount of
the Guaranteed Obligations (including the payment or cash
collateralization of the outstanding LOC Obligations);
SIXTH, to all other Obligations and other obligations which
shall have become due and payable under the Credit Documents or
otherwise and not repaid pursuant to clauses "FIRST" through "FIFTH"
above; and
SEVENTH, to the payment of the surplus, if any, to whoever may
be lawfully entitled to receive such surplus.
In carrying out the foregoing, (i) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category; and (ii) each of the Lenders shall receive an amount equal
to its pro rata share (based on the proportion that the then outstanding
Obligations owed to such Lender bears to the aggregate then outstanding
Obligations) of amounts available to be applied pursuant to clauses "THIRD",
"FOURTH", "FIFTH" and "SIXTH" above; and (iii) to the extent that any amounts
available for distribution pursuant to clause "FIFTH" above are attributable to
the issued but undrawn amount of outstanding Letters of Credit, such amounts
shall be held by the Agent in a cash collateral account and applied (A) first,
to reimburse the Issuing Lender for any drawings under such Letters of Credit
and (B) then, following the expiration of all Letters of Credit, to all other
obligations of the types described in clauses "FIFTH" and "SIXTH" above in the
manner provided in this Section 3.14(b).
3.15 EVIDENCE OF DEBT.
(a) Each Lender shall maintain an account or accounts evidencing each
Loan made by such Lender to the Borrower from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time under this Credit Agreement. Each Lender will make reasonable efforts to
maintain the accuracy of its account or accounts and to promptly update its
account or accounts from time to time, as necessary.
(b) The Agent shall maintain the Register pursuant to Section 11.3(c)
hereof, and a subaccount for each Lender, in which Register and subaccounts
(taken together) shall be recorded (i) the amount, type and Interest Period of
each such Loan hereunder, (ii) the amount of any principal or interest due and
payable or to become due and payable to each Lender hereunder and (iii) the
amount of any sum received by the Agent hereunder from or for the account of the
Borrower and each Lender's share thereof. The Agent will make reasonable efforts
to maintain the
43
<PAGE>
accuracy of the subaccounts referred to in the preceding sentence and to
promptly update such subaccounts from time to time, as necessary.
(c) The entries made in the accounts, Register and subaccounts
maintained pursuant to subsection (b) of this Section 3.15 (and, if consistent
with the entries of the Agent, subsection (a)) shall be prima facie evidence of
the existence and amounts of the obligations of the Borrower therein recorded;
provided, however, that the failure of any Lender or the Agent to maintain any
such account, such Register or such subaccount, as applicable, or any error
therein, shall not in any manner affect the obligation of the Borrower to repay
the Loans made by such Lender in accordance with the terms hereof.
3.16 REPLACEMENT OF LENDERS.
In the event any Lender delivers to the Borrower any notice in
accordance with Section 3.6, 3.8, 3.9 or 3.10, then the Borrower shall have the
right, if no Default or Event of Default then exists, to replace such Lender
(the "Replaced Lender") with one or more additional banks or financial
institutions (collectively, the "Replacement Lender"), provided, that (a) at the
time of any replacement pursuant to this Section 3.16, the Replacement Lender
shall enter into one or more Assignment and Acceptance agreements pursuant to,
and in accordance with the terms of, Section 11.3(b) (and with all processing
and recordation fees payable pursuant to said Section 11.3(b) to be paid by the
Replacement Lender or, at its option, the Borrower) pursuant to which the
Replacement Lender shall acquire all of the rights and obligations of the
Replaced Lender hereunder and, in connection therewith, shall pay to the
Replaced Lender in respect thereof an amount equal to the sum of (i) the
principal of, and all accrued interest on, all outstanding Loans of the Replaced
Lender, and (ii) all accrued, but theretofore unpaid, fees owing to the Replaced
Lender pursuant to Section 3.5, and (b) all other obligations of the Borrower
owing to the Replaced Lender (including all other obligations, if any, owing
pursuant to Sections 3.6, 3.8, 3.9 and 3.10) shall be paid in full to such
Replaced Lender concurrently with such replacement.
SECTION 4
GUARANTY
4.1 THE GUARANTEE.
Each of the Guarantors hereby jointly and severally guarantees to each
Lender, to each Affiliate of a Lender that enters into a Hedging Agreement and
to the Agent as hereinafter provided, the prompt payment of the Guaranteed
Obligations in full when due (whether at stated maturity, as a mandatory
prepayment, by acceleration, a mandatory cash collateralization or otherwise)
strictly in accordance with the terms thereof. The Guarantors hereby further
agree that if any of the Guaranteed Obligations are not paid in full when due
(whether at stated maturity, as a mandatory prepayment, by acceleration, as
mandatory cash collateralization or otherwise), the Guarantors will, jointly and
severally, promptly pay the same, without any demand or notice whatsoever, and
that in the case of any extension of time of payment or renewal of any of the
44
<PAGE>
Guaranteed Obligations, the same will be promptly paid in full when due (whether
at extended maturity, as a mandatory prepayment, by acceleration or otherwise)
in accordance with the terms of such extension or renewal.
Notwithstanding any provision to the contrary contained herein or in
any other of the Credit Documents or Hedging Agreements, to the extent the
obligations of a Guarantor shall be adjudicated to be invalid or unenforceable
for any reason (including, without limitation, because of any applicable state
or federal law relating to fraudulent conveyances or transfers) then the
obligations of each Guarantor hereunder shall be limited to the maximum amount
that is permissible under applicable law (whether federal or state and
including, without limitation, the Bankruptcy Code).
4.2 OBLIGATIONS UNCONDITIONAL.
The obligations of the Guarantors under Section 4.1 hereof are joint
and several, absolute and unconditional, irrespective of the value, genuineness,
validity, regularity or enforceability of any of the Credit Documents or Hedging
Agreements, or any other agreement or instrument referred to therein, or any
substitution, release or exchange of any other guarantee of or security for any
of the Guaranteed Obligations, and, to the fullest extent permitted by
applicable law, irrespective of any other circumstance whatsoever which might
otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor, it being the intent of this Section 4.2 that the obligations of the
Guarantors hereunder shall be absolute and unconditional under any and all
circumstances. Each Guarantor agrees that such Guarantor shall have no right of
subrogation, indemnity, reimbursement or contribution against the Borrower or
any other Guarantor of the Guaranteed Obligations for amounts paid under this
Guaranty until such time as the Lenders (and any Affiliates of Lenders entering
into Hedging Agreements) have been paid in full and all Commitments under the
Credit Agreement have been terminated. Without limiting the generality of the
foregoing, it is agreed that, to the fullest extent permitted by law, the
occurrence of any one or more of the following shall not alter or impair the
liability of any Guarantor hereunder which shall remain absolute and
unconditional as described above:
(i) at any time or from time to time, without notice to any
Guarantor, the time for any performance of or compliance with any of
the Guaranteed Obligations shall be extended, or such performance or
compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of any
of the Credit Documents, any Hedging Agreement or any other agreement
or instrument referred to in the Credit Documents or Hedging Agreements
shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations shall
be accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right under any of the
Credit Documents, any Hedging Agreement or any other agreement or
instrument referred to in the Credit Documents or Hedging Agreements
shall be waived or any other guarantee of any of the Guaranteed
Obligations or any security therefor shall be released or exchanged in
whole or in part or otherwise dealt with;
45
<PAGE>
(iv) any Lien granted to, or in favor of, the Agent or any
Lender or Lenders as security for any of the Guaranteed Obligations
shall fail to attach or be perfected; or
(v) any of the Guaranteed Obligations shall be determined to
be void or voidable (including, without limitation, for the benefit of
any creditor of any Guarantor) or shall be subordinated to the claims
of any Person (including, without limitation, any creditor of any
Guarantor).
With respect to its obligations hereunder, each Guarantor hereby expressly
waives diligence, presentment, demand of payment, protest and all notices
whatsoever, and any requirement that the Agent or any Lender exhaust any right,
power or remedy or proceed against any Person under any of the Credit Documents,
any Hedging Agreement or any other agreement or instrument referred to in the
Credit Documents or Hedging Agreements, or against any other Person under any
other guarantee of, or security for, any of the Guaranteed Obligations.
4.3 REINSTATEMENT.
The obligations of the Guarantors under this Section 4 shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of any Person in respect of the Guaranteed Obligations is rescinded
or must be otherwise restored by any holder of any of the Guaranteed
Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and each Guarantor agrees that it will indemnify
the Agent and each Lender on demand for all reasonable costs and expenses
(including, without limitation, fees and expenses of counsel) incurred by the
Agent or such Lender in connection with such rescission or restoration,
including any such costs and expenses incurred in defending against any claim
alleging that such payment constituted a preference, fraudulent transfer or
similar payment under any bankruptcy, insolvency or similar law.
4.4 CERTAIN ADDITIONAL WAIVERS.
Without limiting the generality of the provisions of this Section 4,
each Guarantor hereby specifically waives the benefits of N.C. Gen. Stat. ss.ss.
26-7 through 26-9, inclusive. Each Guarantor further agrees that such Guarantor
shall have no right of recourse to security for the Guaranteed Obligations,
except through the exercise of the rights of subrogation pursuant to Section
4.2.
4.5 REMEDIES.
The Guarantors agree that, to the fullest extent permitted by law, as
between the Guarantors, on the one hand, and the Agent and the Lenders, on the
other hand, the Guaranteed Obligations may be declared to be forthwith due and
payable as provided in Section 9.2 hereof (and shall be deemed to have become
automatically due and payable in the circumstances provided in said Section 9.2)
for purposes of Section 4.1 hereof notwithstanding any stay, injunction or other
prohibition preventing such declaration (or preventing the Guaranteed
Obligations from becoming automatically due and payable) as against any other
Person and that, in the event of such
46
<PAGE>
declaration (or the Guaranteed Obligations being deemed to have become
automatically due and payable), the Guaranteed Obligations (whether or not due
and payable by any other Person) shall forthwith become due and payable by the
Guarantors for purposes of said Section 4.1.
4.6 RIGHTS OF CONTRIBUTION.
The Guarantors hereby agree, as among themselves, that if any Guarantor
shall become an Excess Funding Guarantor (as defined below), each other
Guarantor shall, on demand of such Excess Funding Guarantor (but subject to the
succeeding provisions of this Section 4.6), pay to such Excess Funding Guarantor
an amount equal to such Guarantor's Pro Rata Share (as defined below and
determined, for this purpose, without reference to the properties, assets,
liabilities and debts of such Excess Funding Guarantor) of such Excess Payment
(as defined below). The payment obligation of any Guarantor to any Excess
Funding Guarantor under this Section 4.6 shall be subordinate and subject in
right of payment to the prior payment in full of the obligations of such
Guarantor under the other provisions of this Section 4, and such Excess Funding
Guarantor shall not exercise any right or remedy with respect to such excess
until payment and satisfaction in full of all of such obligations. For purposes
hereof, (i) "Excess Funding Guarantor" shall mean, in respect of any obligations
arising under the other provisions of this Section 4 (hereafter, the "Guarantied
Obligations"), a Guarantor that has paid an amount in excess of its Pro Rata
Share of the Guarantied Obligations; (ii) "Excess Payment" shall mean, in
respect of any Guarantied Obligations, the amount paid by an Excess Funding
Guarantor in excess of its Pro Rata Share of such Guarantied Obligations; and
(iii) "Pro Rata Share", for the purposes of this Section 4.6, shall mean, for
any Guarantor, the ratio (expressed as a percentage) of (a) the amount by which
the aggregate present fair saleable value of all of its assets and properties
exceeds the amount of all debts and liabilities of such Guarantor (including
contingent, subordinated, unmatured, and unliquidated liabilities, but excluding
the obligations of such Guarantor hereunder) to (b) the amount by which the
aggregate present fair saleable value of all assets and other properties of the
Borrower and all of the Guarantors exceeds the amount of all of the debts and
liabilities (including contingent, subordinated, unmatured, and unliquidated
liabilities, but excluding the obligations of the Borrower and the Guarantors
hereunder) of the Borrower and all of the Guarantors, all as of the Closing Date
(if any Guarantor becomes a party hereto subsequent to the Closing Date, then
for the purposes of this Section 4.6 such subsequent Guarantor shall be deemed
to have been a Guarantor as of the Closing Date and the information pertaining
to, and only pertaining to, such Guarantor as of the date such Guarantor became
a Guarantor shall be deemed true as of the Closing Date).
4.7 CONTINUING GUARANTEE.
The guarantee in this Section 4 is a continuing guarantee, and shall
apply to all Guaranteed Obligations whenever arising.
47
<PAGE>
SECTION 5
CONDITIONS
5.1 CONDITIONS TO CLOSING.
This Credit Agreement shall become effective, and the initial
Extensions of Credit may be made, upon the satisfaction of the following
conditions precedent:
(a) Execution of Credit Agreement and Credit Documents.
Receipt of (i) multiple counterparts of this Credit Agreement, (ii) a Revolving
Note for each Lender, (iii) a Term Note for each Lender, and (iv) the Collateral
Documents, in each case executed by a duly authorized officer of each party
thereto and in each case conforming to the requirements of this Credit
Agreement.
(b) Financial Information. Receipt of financial information
regarding the Borrower and its Subsidiaries, as may be requested by, and in each
case in form and substance satisfactory to the Agent.
(c) Repayment of Existing Indebtedness. Simultaneously with
the completion of the Merger, all Tender Offer Debt shall be refinanced with the
proceeds of the Term Loans and all Liens granted in connection
therewith shall have been released and terminated.
(d) Absence of Legal Proceedings. The absence of any action ,
suit, investigation or proceeding pending in any court or before any arbitrator
or governmental instrumentality which could reasonably be expected to have a
Material Adverse Effect on the Consolidated Group taken as a whole or on the
transactions contemplated by this Credit Agreement.
(e) Host Agreements. Each of the Wal*Mart License Agreement
and the Kmart License Agreement shall be in full force and effect.
(f) Legal Opinions. Receipt of multiple counterparts of
opinions of counsel for the Credit Parties relating to the Credit Documents and
the transactions contemplated herein, in form and substance satisfactory to the
Agent.
(g) Corporate Documents. Receipt of the following (or their
equivalent) for each of the Credit Parties:
(i) Articles of Incorporation. Copies of the articles
of incorporation or charter documents certified to be true and complete
as of a recent date by the appropriate governmental authority of the
state of its incorporation.
(ii) Resolutions. Copies of resolutions of the Board
of Directors approving and adopting the respective Credit Documents,
the transactions contemplated therein and authorizing execution and
delivery thereof, certified by a secretary or assistant secretary as of
the Closing Date to be true and correct and in force and effect as of
such date.
(iii) Bylaws. Copies of the bylaws certified by a
secretary or assistant
48
<PAGE>
secretary as of the Closing Date to be true and correct and in force
and effect as of such date.
(iv) Good Standing. Copies, where applicable, of (A)
certificates of good standing, existence or its equivalent certified as
of a recent date by the appropriate governmental authorities of the
state of incorporation and each other state in which the failure to so
qualify and be in good standing would have a material adverse effect on
the business or operations in such state and (B) a certificate
indicating payment of all corporate franchise taxes certified as of a
recent date by the appropriate governmental taxing authorities.
(v) Officer's Certificate. An officer's certificate
for each of the Credit Parties dated as of the Closing Date
substantially in the form of Schedule 5.1(g)(v) with appropriate
insertions and attachments.
(h) Merger. The Merger Agreement and the other documentation
related to the Merger shall be in full force and effect and the Merger shall
have been consummated in accordance with the terms and subject to each of the
conditions contained in such agreements. Without limiting the generality of the
foregoing, no more than $57.5 million shall have been paid for 100% of the ASI
Shares (on a fully diluted basis), the Tender Offer and the Merger shall have
been commenced, conducted and concluded in compliance with applicable law, all
material agreements produced in connection therewith shall be satisfactory to
the Agent, all SEC filings produced in connection therewith shall be
satisfactory to the Agent, and immediately prior to the Merger, the debt
(including capital leases) outstanding at ASI shall not exceed $15,000,000 and
simultaneously with the completion of the Merger, all such debt of ASI shall be
refinanced with the proceeds of the Term Loans and all Liens (other than
Permitted Liens) granted in connection therewith shall have been released and
terminated.
(i) KeyMan Life Insurance. Evidence of key man life insurance
for John Grosso in the amount of at least $3,000,000 naming the Borrower as
beneficiary.
(j) Personal Property Collateral. The Agent shall have
received:
(i) searches of Uniform Commercial Code ("UCC")
filings in the jurisdiction of the chief executive office of
each Credit Party and each jurisdiction where any Collateral
is located or where a filing would need to be made in order
to perfect the Lenders' security interest in the Collateral
(other than locations where the Agent determines that the
value of Collateral located thereon is not material), copies
of the financing statements on file in such jurisdictions and
evidence that no Liens exist other than Permitted Liens;
49
<PAGE>
(ii) duly executed UCC financing statements for
each appropriate jurisdiction as is necessary, in the Agent's
sole discretion, to perfect the Lenders' security interest in
the Collateral (other than locations where the Agent
determines that the value of Collateral located thereon is not
material);
(iii) searches of ownership of intellectual
property in the appropriate governmental offices and such
patent/trademark/copyright filings as requested by the Agent
in order to perfect the Agent's security interest in the
Collateral; and
(iv) all stock certificates evidencing the stock
pledged to the Agent pursuant to the Pledge Agreements,
together with duly executed in blank undated stock powers
attached thereto.
(k) Real Property Collateral. The Agent shall have received:
(i) fully executed and notarized mortgages,
deeds of trust or deeds to secure debt (each a "Mortgage" and
collectively the "Mortgages") encumbering the fee interest of
the Credit Parties in each real property asset owned by a
Credit Party set forth on Schedule 5.1(k) (each a "Mortgaged
Property" and collectively the "Mortgaged Properties"),
together with such UCC-1 financing statements as the Agent
shall deem appropriate with respect to each such Mortgaged
Property;
(ii) ALTA or other appropriate form mortgagee
title insurance policies (the "Mortgage Policies") issued by
title insurers satisfactory to the Agent (the "Title Insurance
Company"), in an amount satisfactory to the Agent with respect
to each parcel of real property encumbered by a Mortgage and
otherwise in form and substance satisfactory to the Agent;
(iii) maps or plats of an as-built survey of the
sites of the Mortgaged Properties certified to the Agent and
the Title Insurance Company in a manner satisfactory to them,
dated a date satisfactory to the Agent and the Title Insurance
Company by an independent professional licensed land surveyor
satisfactory to the Agent and the Title Insurance Company,
which maps or plats and the surveys on which they are based
shall be sufficient to delete any standard printed survey
exception contained in the applicable title policy and be made
in accordance with the Minimum Standard Detail Requirements
for Land Title Surveys jointly established and adopted by the
American Land Title Association and the American Congress on
Surveying and Mapping in 1992; and
(iv) certification from a registered engineer or
land surveyor in a form satisfactory to the Agent or other
evidence acceptable to the Agent that none of the improvements
on the real property encumbered by the Mortgages
50
<PAGE>
are located within any area designated by the Director of the
Federal Emergency Management Agency as a "special flood
hazard" area or if any improvements on such properties are
located within a "special flood hazard" area, evidence of a
flood insurance policy from a company and in an amount
satisfactory to the Agent for the applicable portion of the
premises, naming the Agent, for the benefit of the Lenders,
as mortgagee;
(l) Evidence of Insurance. Receipt by the Agent of copies of
insurance policies or certificates of insurance of the Credit Parties evidencing
liability and casualty insurance meeting the requirements set forth in the
Credit Documents, including, but not limited to, naming the Agent as sole loss
payee on behalf of the Lenders.
(m) Corporate Structure. The corporate capital and ownership
structure of the Borrower and the Guarantors (after giving effect to the
purchase of the ASI Shares and the Merger) shall be as described
in Schedule 5.1(m).
(n) Government Consent. Receipt by the Agent of evidence that
all governmental, shareholder and material third party consents (including
Hart-Scott-Rodino clearance) and approvals necessary or desirable in connection
with the acquisition of the ASI Shares and the Merger and the related financings
and other transactions contemplated hereby and expiration of all applicable
waiting periods without any action being taken by any authority that could
reasonably be likely to restrain, prevent or impose any material adverse
conditions on the acquisition of the ASI Shares or the Merger or such other
transactions or that could reasonably be likely to seek or threaten any of the
foregoing, and no law or regulation shall be applicable which in the judgment of
the Agent could reasonably be likely to have such effect.
(o) Severance Payments. Evidence satisfactory to the Agent
that the aggregate amounts to be paid by ASI (or the Borrower on behalf of ASI)
in connection with required termination and/or severance payments to key
employees of ASI upon a change of control of ASI shall not exceed $2.8 million.
(p) Material Contracts. No material agreements or any
organizational documents of the Borrower or any of its Subsidiaries (including,
without limitation, any agreements executed in connection with the Tender Offer
or the Merger) shall have been amended, modified, or supplemented, repealed or
revoked, or terminated, nor shall any waivers or consents in connection
therewith have been given without the prior written consent of the Agent
(including, without limitation, actions requiring the consent or waiver of the
Borrower pursuant to Article V of the Merger Agreement, but excluding actions
expressly permitted to be taken or omitted by ASI or its subsidiaries in
accordance with said Article V) if any such amendment, modification, supplement,
repeal, revocation, termination, waiver, or consent would have an adverse effect
on the interests of the Lenders under this Credit Agreement.
(q) Fees. Receipt of all fees, if any, owing pursuant to the
Agent's Fee Letter and Section 3.5 or otherwise.
51
<PAGE>
(r) Availability. After giving effect to the borrowing of
Revolving Loans and the outstanding LOC Obligations as of the Closing Date,
there shall be no less than $15 million of availability under the Revolving
Commitments.
(s) Interest Rate Protection. The Borrower shall have in
place one or more Hedging Agreements satisfactory in form and substance to the
Agent.
(t) Subsection 5.2 Conditions. The conditions specified in
Section 5.2 shall be satisfied.
(u) Additional Matters. All other documents and legal matters
in connection with the transactions contemplated by this Credit Agreement shall
be reasonably satisfactory in form and substance to the
Agent.
5.2 CONDITIONS TO ALL EXTENSIONS OF CREDIT.
The obligation of each Lender to make any Extension of Credit hereunder
(including the initial Extension of Credit to be made hereunder) is subject to
the satisfaction of the following conditions precedent on the date of making
such Extension of Credit:
(a) Representations and Warranties. The representations and
warranties made by the Credit Parties herein or in any other Credit Documents or
which are contained in any certificate furnished at any time under or in
connection herewith shall be true and correct in all material respects on and as
of the date of such Extension of Credit as if made on and as of such date
(except for those which expressly relate to an earlier date).
(b) No Default or Event of Default. No Default or Event of
Default shall have occurred and be continuing on such date or after giving
effect to the Extension of Credit to be made on such date unless such Default or
Event of Default shall have been waived in accordance with this Credit
Agreement.
(c) Additional Conditions to Revolving Loans. If a Revolving
Loan is made pursuant to Section 2.1, all conditions set forth therein shall
have been satisfied.
(d) Additional Conditions to Letters of Credit. If such
Extension of Credit is made pursuant to Section 2.2, all conditions set forth
therein shall have been satisfied.
Each request for Extension of Credit (including extensions and
conversions) and each acceptance by the Borrower of an Extension of Credit
(including extensions and conversions) shall be deemed to constitute a
representation and warranty by the Borrower as of the date of such Extension of
Credit that the applicable conditions in paragraphs (a), (b), (c) and (d) of
this subsection have been satisfied.
52
<PAGE>
SECTION 6
REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Credit Agreement and to make
Extensions of Credit herein provided for, each of the members of the
Consolidated Group parties hereto hereby represents and warrants to the Agent
and to each Lender that:
6.1 FINANCIAL CONDITION.
Each of the financial statements described below (copies of which have
heretofore been provided to the Agent for distribution to the Lenders), have
been prepared in accordance with GAAP consistently applied throughout the
periods covered thereby, are complete and correct in all material respects and
present fairly the financial condition and results from operations of the
entities and for the periods specified, subject in the case of interim
company-prepared statements to normal year-end adjustments and the absence of
notes required by GAAP:
(i) an audited consolidated balance sheet of the Borrower and
its consolidated subsidiaries dated as of January 31, 1996, together
with related statements income and cash flows certified by KPMG Peat
Marwick certified public accountants;
(ii) a company-prepared consolidated balance sheet of the
Borrower and its consolidated subsidiaries dated as of October 31,
1996, together with related consolidated statements of income and cash
flows; and
(iii) a company-prepared consolidated balance sheet of ASI and
its consolidated subsidiaries dated as of September 30, 1996, together
with related consolidated statements of income and cash flows.
6.2 NO CHANGES OR RESTRICTED PAYMENTS.
Since the date of the audited financial statements referenced in
Section 6.1(i), (a) there has been no circumstance, development or event
relating to or affecting the members of the Consolidated Group which has had or
would be reasonably expected to have a Material Adverse Effect, and (b) except
as set forth on Schedule 6.2 or as permitted herein, no Restricted Payments have
been made or declared or are contemplated by any members of the Consolidated
Group.
6.3 ORGANIZATION; EXISTENCE; COMPLIANCE WITH LAW.
Each of the members of the Consolidated Group (a) is a corporation duly
organized, validly existing in good standing under the laws of the jurisdiction
of its organization, (b) has the corporate or other necessary power and
authority, and the legal right to own and operate its property, to lease the
property it operates as lessee and to conduct the business in which it is
currently engaged, (c) is duly qualified as a foreign entity 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, other than in such jurisdictions where the failure to be so
qualified and in good standing would not,
53
<PAGE>
in the aggregate, have a Material Adverse Effect, and (d) is in compliance
with all Requirements of Law, except to the extent that the
failure to comply therewith would not, in the aggregate, be reasonably expected
to have a Material Adverse Effect.
6.4 POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS.
Each of the Credit Parties has the corporate or other necessary power
and authority, and the legal right, to make, deliver and perform the Credit
Documents to which it is a party and has taken all necessary corporate action to
authorize the execution, delivery and performance by it of the Credit Documents
to which it is a party. No consent or authorization of, filing with, notice to
or other act by or in respect of, any Governmental Authority or any other Person
is required in connection with the borrowings hereunder or with the execution,
delivery or performance of any Credit Documents by the Credit Parties (other
than those which have been obtained, such filings as are required by the
Securities and Exchange Commission and to fulfill other reporting requirements
with Governmental Authorities) or with the validity or enforceability of any
Credit Document against the Credit Parties (except such filings as are necessary
in connection with the perfection of the Liens created by such Credit
Documents). Each Credit Document to which the Credit Parties are a party
constitutes a legal, valid and binding obligation of such Credit Parties
enforceable against such Credit Parties in accordance with their respective
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law.
6.5 NO LEGAL BAR.
The execution, delivery and performance of the Credit Documents, the
borrowings hereunder and the use of the Extensions of Credit will not violate
any Requirement of Law, which violation has or would reasonably be expected to
have a Material Adverse Effect, or any Contractual Obligation of any member of
the Consolidated Group (except those as to which waivers or consents have been
obtained ), and will not result in, or require, the creation or imposition of
any Lien on any of their respective properties or revenues pursuant to any
Requirement of Law or Contractual Obligation other than the Liens arising under
or contemplated in connection with the Credit Documents. No member of the
Consolidated Group is in default under or with respect to any of its Contractual
Obligations in any respect which has or would reasonably be expected to have a
Material Adverse Effect.
6.6 NO MATERIAL LITIGATION.
No claim, litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the best knowledge of the
Credit Parties, threatened by or against, any members of the Consolidated Group
or against any of their respective properties or revenues which (a) relate to
the Credit Documents or any of the transactions contemplated hereby or thereby
(including specifically without limitation the Tender Offer and the Merger) or
(b) if adversely determined, would reasonably be expected to have a Material
Adverse Effect. Set forth on Schedule 6.6 is a summary of all claims,
litigation, investigations and proceedings
54
<PAGE>
pending or, to the best knowledge of the Credit Parties, threatened by or
against the members of the Consolidated Group or against any of their respective
properties or revenues, and none of such actions, individually or in the
aggregate, is reasonably expected to have a Material Adverse Effect.
6.7 NO DEFAULT.
No Default or Event of Default has occurred and is continuing.
6.8 OWNERSHIP OF PROPERTY; LIENS.
Each of members of the Consolidated Group has good record and
marketable title in fee simple to, or a valid leasehold interest in, all its
material real property, and good title to, or a valid leasehold interest in, all
its other material property, and none of such property is subject to any Lien,
except for Permitted Liens.
6.9 INTELLECTUAL PROPERTY.
Each of the members of the Consolidated Group owns, or has the legal
right to use, all United States trademarks, tradenames, copyrights, technology,
know-how and processes, if any, necessary for each of them to conduct its
business as currently conducted (the "Intellectual Property") except for those
the failure to own or have such legal right to use would not be reasonably
expected to have a Material Adverse Effect. No claim has been asserted and is
pending by any Person challenging or questioning the use of any such
Intellectual Property or the validity or effectiveness of any such Intellectual
Property, nor does any Credit Party know of any such claim, and the use of such
Intellectual Property by the members of the Consolidated Group does not infringe
on the rights of any Person, except for such claims and infringements that in
the aggregate, would not be reasonably expected to have a Material Adverse
Effect.
6.10 NO BURDENSOME RESTRICTIONS.
No Requirement of Law applicable to, or Contractual Obligation of, the
members of the Consolidated Group has or would be reasonably expected to have a
Material Adverse Effect.
6.11 TAXES.
Each of the members of the Consolidated Group has filed or caused to be
filed all United States federal income tax returns and all other material tax
returns which, to the best knowledge of the Credit Parties, are required to be
filed and has paid (a) all taxes shown to be due and payable on said returns or
(b) all taxes shown to be due and payable on any assessments of which it has
received notice made against it or any of its property and all other taxes, fees
or other charges imposed on it or any of its property by any Governmental
Authority (other than any (i) taxes, fees or other charges with respect to which
the failure to pay, in the aggregate, would not have a Material Adverse Effect
or (ii) taxes, fees or other charges the amount or validity of which are
currently being contested and with respect to which reserves in conformity with
GAAP have been
55
<PAGE>
provided on the books of such Person), and no tax Lien has been
filed, and, to the best knowledge of the Credit Parties, no claim is being
asserted, with respect to any such tax, fee or other charge.
6.12 ERISA
Except as would not reasonably be expected to have a Material Adverse
Effect:
(a) During the five-year period prior to the date on which this
representation is made or deemed made: (i) no ERISA Event has occurred, and, to
the best knowledge of the Credit Parties, no event or condition has occurred or
exists as a result of which any ERISA Event could reasonably be expected to
occur, with respect to any Plan; (ii) no "accumulated funding deficiency," as
such term is defined in Section 302 of ERISA and Section 412 of the Code,
whether or not waived, has occurred with respect to any Plan; (iii) each Plan
has been maintained, operated, and funded in compliance with its own terms and
in material compliance with the provisions of ERISA, the Code, and any other
applicable federal or state laws; and (iv) no lien in favor of the PBGC or a
Plan has arisen or is reasonably likely to arise on account of any Plan.
(b) The actuarial present value of all "benefit liabilities" (as
defined in Section 4001(a)(16) of ERISA), whether or not vested, under each
Single Employer Plan, as of the last annual valuation date prior to the date on
which this representation is made or deemed made (determined, in each case, in
accordance with Financial Accounting Standards Board Statement 87, utilizing the
actuarial assumptions used in such Plan's most recent actuarial valuation
report), did not exceed as of such valuation date the fair market value of the
assets of such Plan.
(c) No member of the Consolidated Group nor any ERISA Affiliate has
incurred, or, to the best knowledge of the Credit Parties, could be reasonably
expected to incur, any withdrawal liability under ERISA to any Multiemployer
Plan or Multiple Employer Plan. No member of the Consolidated Group nor any
ERISA Affiliate would become subject to any withdrawal liability under ERISA if
any member of the Consolidated Group or any ERISA Affiliate were to withdraw
completely from all Multiemployer Plans and Multiple Employer Plans as of the
valuation date most closely preceding the date on which this representation is
made or deemed made. No member of the Consolidated Group nor any ERISA Affiliate
has received any notification that any Multiemployer Plan is in reorganization
(within the meaning of Section 4241 of ERISA), is insolvent (within the meaning
of Section 4245 of ERISA), or has been terminated (within the meaning of Title
IV of ERISA), and no Multiemployer Plan is, to the best knowledge of the Credit
Parties, reasonably expected to be in reorganization, insolvent, or terminated.
(d) No prohibited transaction (within the meaning of Section 406 of
ERISA or Section 4975 of the Code) or breach of fiduciary responsibility has
occurred with respect to a Plan which has subjected or may subject any member of
the Consolidated Group or any ERISA Affiliate to any liability under Sections
406, 409, 502(i), or 502(l) of ERISA or Section 4975 of the Code, or under any
agreement or other instrument pursuant to which any member of the Consolidated
Group or any ERISA Affiliate has agreed or is required to indemnify any person
against any such liability.
56
<PAGE>
(e) No member of the Consolidated Group nor any ERISA Affiliates has
any material liability with respect to "expected post-retirement benefit
obligations" within the meaning of the Financial Accounting Standards Board
Statement 106. Each Plan which is a welfare plan (as defined in Section 3(1) of
ERISA) to which Sections 601-609 of ERISA and Section 4980B of the Code apply
has been administered in compliance in all material respects of such sections.
6.13 GOVERNMENTAL REGULATIONS, ETC.
(a) No part of the proceeds of the Loans will be used,
directly or indirectly, for the purpose of purchasing or carrying any
"margin stock" within the meaning of Regulation G or Regulation U, or
for the purpose of purchasing or carrying or trading in any securities.
If requested by any Lender or the Agent, the Borrower will furnish to
the Agent and each Lender additional statements to the foregoing effect
in conformity with the requirements of FR Form U-1 referred to in said
Regulation U. No indebtedness being reduced or retired out of the
proceeds of the Loans was or will be incurred for the purpose of
purchasing or carrying any margin stock within the meaning of
Regulation U or any "margin security" within the meaning of Regulation
T. Margin Stock does not constitute more than 25% of the value of the
consolidated assets of the Borrower and its Subsidiaries. None of the
transactions contemplated by this Credit Agreement (including, without
limitation, the direct or indirect use of the proceeds of the Loans)
will violate or result in a violation of the Securities Act of 1933, as
amended, or the Securities Exchange Act of 1934, as amended, or
regulations issued pursuant thereto, or Regulation G, T, U or X.
(b) None of the members of the Consolidated Group is subject
to regulation under the Public Utility Holding Company Act of 1935, the
Federal Power Act or the Investment Company Act of 1940, each as
amended. In addition, none of the members of the Consolidated Group is
(i) an "investment company" registered or required to be registered
under the Investment Company Act of 1940, as amended, and is not
controlled by such a company, or (ii) a "holding company", or a
"subsidiary company" of a "holding company", or an "affiliate" of a
"holding company" or of a "subsidiary" of a "holding company", within
the meaning of the Public Utility Holding Company Act of 1935, as
amended.
(c) Each of the members of the Consolidated Group has obtained
all material licenses, permits, franchises, other governmental
authorizations and third party approvals necessary to the ownership of
its respective Property and to the conduct of its business.
(d) None of the members of the Consolidated Group is in
violation of any applicable statute, regulation or ordinance of the
United States of America, or of any state, city, town, municipality,
county or any other jurisdiction, or of any agency thereof (including
without limitation, environmental laws and regulations), which
violation could reasonably be expected to have a Material Adverse
Effect.
(e) Each of the members of the Consolidated Group is current
with all material reports and documents, if any, required to be filed
with any state or federal securities
57
<PAGE>
commission or similar agency and is in full compliance in all
material respects with all applicable rules and regulations of such
commissions.
6.14 SUBSIDIARIES.
Set forth on Schedule 6.14 are all the Subsidiaries of the Borrower at
the Closing Date, the jurisdiction of their incorporation and the direct or
indirect ownership interest of the Borrower therein.
6.15 PURPOSE OF EXTENSIONS OF CREDIT.
The Extensions of Credit will be used to refinance the Tender Offer
Debt, refinance other existing Funded Debt, and to finance working capital and
other corporate purposes (including without limitation the payment of fees and
expenses related to the purchase of the ASI Shares and the Merger). The Letters
of Credit shall be used only for or in connection with appeal bonds,
reimbursement obligations arising in connection with surety and reclamation
bonds, reinsurance, domestic or international trade transactions and obligations
not otherwise aforementioned relating to transactions entered into by the
applicable account party in the ordinary course of business.
6.16 ENVIRONMENTAL MATTERS.
Except as would not reasonably be expected to have a Material Adverse
Effect:
(a) Each of the facilities and properties owned, leased or operated by
the members of the Consolidated Group (the "Properties") and all operations at
the Properties are in compliance with all applicable Environmental Laws, and
there is no violation of any Environmental Law with respect to the Properties or
the businesses operated by the members of the Consolidated Group (the
"Businesses"), and there are no conditions relating to the Businesses or
Properties that could give rise to liability under any applicable Environmental
Laws.
(b) None of the Properties contains, or has previously contained, any
Materials of Environmental Concern at, on or under the Properties in amounts or
concentrations that constitute or constituted a violation of, or could give rise
to liability under, Environmental Laws.
(c) None of the members of the Consolidated Group has received any
written or verbal notice of, or inquiry from any Governmental Authority
regarding, any violation, alleged violation, non-compliance, liability or
potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Properties or the Businesses, nor
does any member of the Consolidated Group have knowledge or reason to believe
that any such notice will be received or is being threatened.
(d) Materials of Environmental Concern have not been transported or
disposed of from the Properties, or generated, treated, stored or disposed of
at, on or under any of the Properties or any other location, in each case by or
on behalf of any members of the Consolidated Group in
58
<PAGE>
violation of, or in a manner that would be reasonably likely to give rise to
liability under, any applicable Environmental Law.
(e) No judicial proceeding or governmental or administrative action is
pending or, to the best knowledge of any Credit Party, threatened, under any
Environmental Law to which any member of the Consolidated Group is or will be
named as a party, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other administrative or
judicial requirements outstanding under any Environmental Law with respect to
any member of the Consolidated Group, the Properties or the Businesses.
(f) There has been no release or, threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or related to
the operations (including, without limitation, disposal) of any member of the
Consolidated Group in connection with the Properties or otherwise in connection
with the Businesses, in violation of or in amounts or in a manner that could
give rise to liability under Environmental Laws.
SECTION 7
AFFIRMATIVE COVENANTS
Each of the Credit Parties covenants and agrees that on the Closing
Date, and so long as this Credit Agreement is in effect and until the
Commitments have been terminated, no Obligations remain outstanding and all
amounts owing hereunder or in connection herewith have been paid in full, each
of the members of the Consolidated Group party hereto shall:
7.1 FINANCIAL STATEMENTS.
Furnish, or cause to be furnished, to the Agent and to each of the
Lenders:
(a) Audited Financial Statements. As soon as available, but in
any event within 90 days after the end of each fiscal year, an audited
consolidated balance sheet of the Borrower and its subsidiaries as of
the end of the fiscal year and the related consolidated statements of
income, retained earnings, shareholders' equity and cash flows for the
year, audited by KPMG Peat Marwick, or other firm of independent
certified public accountants of nationally recognized standing
reasonably acceptable to the Required Lenders, setting forth in each
case in comparative form the figures for the previous year, reported
without a "going concern" or like qualification or exception, or
qualification indicating that the scope of the audit was inadequate to
permit such independent certified public accountants to certify such
financial statements without such qualification.
(b) Company-Prepared Financial Statements. As soon as
available, but in any event
(i) within 30 days after the end of each month, a
company-prepared unaudited consolidated and consolidating
balance sheet of the Borrower and its
59
<PAGE>
subsidiaries as of the end of such month and related
company-prepared consolidated and consolidating statements
of income for such monthly period and for the fiscal year
to date;
(ii) within 45 days after the end of each of the
first three fiscal quarters, the company-prepared unaudited
consolidated and consolidating balance sheet of the Borrower
and its subsidiaries as of the end of such quarter and related
company-prepared consolidated and consolidating statements of
income, retained earnings, shareholders' equity and cash flows
for such quarterly period and for the fiscal year to date or,
in lieu thereof, the Borrower's report on Form 10Q filed with
the Securities and Exchange Commission for such period;
(iii) within 45 days following the end of each fiscal
year, an annual business plan and budget for the members of
the Consolidated Group, containing, among other things, pro
forma financial statements for the then current fiscal year,
in each case setting forth in comparative form the consolidated and
consolidating figures for the corresponding period or periods of the
preceding fiscal year or the portion of the fiscal year ending with
such period, as applicable, in each case subject to normal recurring
year-end audit adjustments and the absence of notes required by GAAP.
All such financial statements shall be complete and correct in all material
respects (subject, in the case of interim statements, to normal recurring
year-end audit adjustments) and shall be prepared in reasonable detail and, in
the case of the annual and quarterly financial statements provided in accordance
with subsections (a) and (b) above, in accordance with GAAP applied consistently
throughout the periods reflected therein) and further accompanied by a
description of, and an estimation of the effect on the financial statements on
account of, any change in the application of accounting principles as provided
in Section 1.3.
7.2 CERTIFICATES; OTHER INFORMATION.
Furnish, or cause to be furnished, to the Agent and to each of the
Lenders:
(a) Accountant's Certificate and Reports. Concurrently with
the delivery of the financial statements referred to in subsection
7.1(a) above, a certificate of the independent certified public
accountants reporting on such financial statements stating that in
making the examination necessary therefor no knowledge was obtained of
any Default or Event of Default, except as specified in such
certificate.
(b) Officer's Certificate. Concurrently with the delivery of
the financial statements referred to in Sections 7.1(a) and 7.1(b)(ii)
above, a certificate of a Responsible Officer stating that, to the best
of such Responsible Officer's knowledge and belief, (i) the financial
statements fairly present in all material respects the financial
condition of the parties covered by such financial statements, (ii)
during such period the members of the Consolidated Group have observed
or performed in all material respects
60
<PAGE>
the covenants and other agreements hereunder and under the other Credit
Documents relating to them, and satisfied in all material respects the
conditions, contained in this Credit Agreement to be observed,
performed or satisfied by them, (iii) such Responsible Officer has
obtained no knowledge of any Default or Event of Default except as
specified in such certificate and (iv) such certificate shall include
the calculations required to indicate compliance with Section 7.9. A
form of Officer's Certificate is attached as Schedule 7.2(b).
(c) Accountants' Reports. Promptly upon receipt, a copy of any
final (as distinguished from a preliminary or discussion draft)
"management letter" or other similar report submitted by independent
accountants or financial consultants to the members of the Consolidated
Group in connection with any annual, interim or special audit.
(d) Public Information. Within ten days after the same are
sent, copies of all reports (other than those otherwise provided
pursuant to subsection 7.1) and other financial information which any
member of the Consolidated Group sends to its public stockholders, and
within ten days after the same are filed, copies of all financial
statements and non-confidential reports which any member of the
Consolidated Group may make to, or file with, the Securities and
Exchange Commission or any successor or analogous Governmental
Authority.
(e) Other Information. Promptly, such additional financial and
other information as the Agent, at the request of any Lender, may from
time to time reasonably request.
7.3 NOTICES.
Give notice to the Agent (which shall promptly transmit such notice to
each Lender) of:
(a) Defaults. Immediately (and in any event within five (5)
Business Days) after a Responsible Officer of any Credit Party knows or
has reason to know thereof, the occurrence of any Default or Event of
Default.
(b) Contractual Obligations. Promptly, the occurrence of any
default or event of default under any Contractual Obligation of any
member of the Consolidated Group which would reasonably be
expected to have a Material Adverse Effect.
(c) Legal Proceedings. Promptly, the initiation of any
litigation, or any investigation or proceeding (including without
limitation, any environmental proceeding) known to any Responsible
Officer of a member of the Consolidated Group, or any material
development in respect thereof, against any member of the Consolidated
Group which, if adversely determined, would reasonably be expected to
have a Material Adverse Effect (and in any event, where compensation,
reimbursement, damages or relief is sought in excess of $500,000 in any
instance).
61
<PAGE>
(d) ERISA. Promptly, after any Responsible Officer of the
Borrower knows or has reason to know of (i) any event or condition,
including, but not limited to, any Reportable Event, that constitutes,
or might reasonably lead to, an ERISA Event; (ii) with respect to any
Multiemployer Plan, the receipt of notice as prescribed in ERISA or
otherwise of any withdrawal liability assessed against any of their
ERISA Affiliates, or of a determination that any Multiemployer Plan is
in reorganization or insolvent (both within the meaning of Title IV of
ERISA); (iii) the failure to make full payment on or before the due
date (including extensions) thereof of all amounts which the members of
the Consolidated Group or any ERISA Affiliate are required to
contribute to each Plan pursuant to its terms and as required to meet
the minimum funding standard set forth in ERISA and the Code with
respect; or (iv) any change in the funding status of any Plan that
reasonably could be expected to have a Material Adverse Effect;
together with a description of any such event or condition or a copy of
any such notice and a statement by the chief financial officer of the
Borrower briefly setting forth the details regarding such event,
condition, or notice, and the action, if any, which has been or is
being taken or is proposed to be taken by the Credit Parties with
respect thereto. Promptly upon request, the members of the Consolidated
Group shall furnish the Agent and the Lenders with such additional
information concerning any Plan as may be reasonably requested,
including, but not limited to, copies of each annual report/return
(Form 5500 series), as well as all schedules and attachments thereto
required to be filed with the Department of Labor and/or the Internal
Revenue Service pursuant to ERISA and the Code, respectively, for each
"plan year" (within the meaning of Section 3(39) of ERISA).
(e) Other. Promptly, any other development or event which a
Responsible Officer determines could reasonably be expected to have a
Material Adverse Effect.
Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the relevant Credit Parties propose to take with respect
thereto.
7.4 PAYMENT OF OBLIGATIONS.
Pay, discharge or otherwise satisfy at or before maturity or before
they become delinquent, as the case may be, in accordance with prudent business
practice (subject, where applicable, to specified grace periods) all material
obligations of each member of the Consolidated Group of whatever nature and any
additional costs that are imposed as a result of any failure to so pay,
discharge or otherwise satisfy such obligations, except when the amount or
validity of such obligations and costs is currently being contested in good
faith by appropriate proceedings and reserves, if applicable, in conformity with
GAAP with respect thereto have been provided on the books of the Consolidated
Group, as the case may be.
62
<PAGE>
7.5 CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE.
Continue to engage in business of the same general type as now
conducted by it on the date hereof, and preserve, renew and keep in full force
and effect its corporate existence and take all reasonable action to maintain
all rights, privileges, licenses and franchises necessary or desirable in the
normal conduct of its business; and comply with all Contractual Obligations and
Requirements of Law applicable to it except to the extent that failure to comply
therewith would not, in the aggregate, have a Material Adverse Effect.
7.6 MAINTENANCE OF PROPERTY; INSURANCE.
Keep all material property useful and necessary in its business in
reasonably good working order and condition (ordinary wear and tear excepted);
maintain with financially sound and reputable insurance companies casualty,
liability and such other insurance (which may include plans of self-insurance)
with such coverage and deductibles, and in such amounts as may be consistent
with prudent business practice and in any event consistent with normal industry
practice (except to any greater extent as may be required by the terms of any of
the other Credit Documents); and furnish to the Agent, upon written request,
full information as to the insurance carried. The Agent shall be named as loss
payee or mortgagee, as its interest may appear, and/or as additional insured
with respect to any such insurance providing coverage in respect of any
Collateral, and each provider of any such insurance shall agree, by endorsement
upon the policy or policies issued by it or by independent instruments furnished
to the Agent, that it will give the Agent thirty (30) days prior written notice
before any such policy or policies shall be altered or canceled, and that no act
or default of the Borrower or any of its Subsidiaries or any other Person shall
affect the rights of the Agent or the Lenders under such policy or policies. The
present insurance coverage of the Borrower and its Subsidiaries is outlined as
to carrier, policy number, expiration date, type and amount on Schedule 7.6, as
Schedule 7.6 may be amended from time to time by written notice to the Agent.
7.7 INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS.
(a) Keep proper books of records and account in which full, true and
correct entries in conformity with GAAP and all Requirements of Law shall be
made of all dealings and transactions in relation to its businesses and
activities; and permit, during regular business hours and upon reasonable notice
by the Agent, the Agent to visit and inspect any of its properties and examine
and make abstracts (including photocopies) from any of its books and records
(other than materials protected by the attorney-client privilege and materials
which the Credit Parties may not disclose without violation of a confidentiality
obligation binding upon them) at any reasonable time, and to discuss the
business, operations, properties and financial and other condition of the
members of the Consolidated Group with officers and employees of the members of
the Consolidated Group and with their independent certified public accountants.
The cost of the inspection referred to in the preceding sentence shall be for
the account of the Lenders unless an Event of Default has occurred and is
continuing, in which case the cost of such inspection shall be for the account
of the Credit Parties.
63
<PAGE>
(b) In addition to the foregoing subsection (a), permit the Agent to
have agents or representatives to conduct a "field audit" of its inventory and
accounts, including inspection of the inventory and account records and a right
to examine and make abstracts (including photocopies) from its books and records
relating to its inventory and accounts once in each fiscal year, and more
frequently after the occurrence of an Event of Default.
7.8 ENVIRONMENTAL LAWS.
(a) Comply in all material respects with, and take reasonable actions
to ensure compliance in all material respects by all tenants and
subtenants, if any, with, all applicable Environmental Laws and obtain
and comply in all material respects with and maintain, and take
reasonable actions to ensure that all tenants and subtenants obtain and
comply in all material respects with and maintain, any and all
licenses, approvals, notifications, registrations or permits required
by applicable Environmental Laws except to the extent that failure to
do so would not reasonably be expected to have a Material Adverse
Effect;
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with
all lawful orders and directives of all Governmental Authorities
regarding Environmental Laws except to the extent that the same are
being contested in good faith by appropriate proceedings and the
failure to do so or the pendency of such proceedings would not
reasonably be expected to have a Material Adverse Effect; and
(c) Defend, indemnify and hold harmless the Agent and the Lenders, and
their respective employees, agents, officers and directors, from and
against any and all claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or nature
known or unknown, contingent or otherwise, arising out of, or in any
way relating to the violation of, noncompliance with or liability
under, any Environmental Law applicable to the operations of the
members of the Consolidated Group or the Properties, or any orders,
requirements or demands of Governmental Authorities related thereto,
including, without limitation, reasonable attorney's and consultant's
fees, investigation and laboratory fees, response costs, court costs
and litigation expenses, except to the extent that any of the foregoing
arise out of the gross negligence or willful misconduct of the party
seeking indemnification therefor. The agreements in this paragraph
shall survive repayment of the Loans and all other amounts payable
hereunder, and termination of the Commitments.
7.9 FINANCIAL COVENANTS.
(a) Consolidated Net Worth. There shall be maintained, as of the end of
each fiscal quarter commencing with the fiscal quarter ending February 2, 1997,
Consolidated Net Worth equal to not less than the sum of (i) $27,500,000 plus
(ii) one hundred percent (100%) of the Net Proceeds of any Equity Transaction
occurring after the Closing Date plus (iii) on the last day of
64
<PAGE>
each fiscal quarter, beginning with the fiscal quarter ending May 4, 1997, an
amount equal to fifty percent (50%) of Consolidated Net Income for the quarter
then ended (but not less than zero).
(b) Consolidated Leverage Ratio. There shall be maintained, as of the
end of each fiscal quarter to occur during the periods shown, a Consolidated
Leverage Ratio of not greater than:
Closing Date to February 1, 1998 3.75 to 1.0
February 2, 1998 to August 2, 1998 3.00 to 1.0
August 3, 1998 to January 31, 1999 2.50 to 1.0
February 1, 1999 and thereafter 2.00 to 1.0
(c) Consolidated Fixed Charge Coverage Ratio. There shall be
maintained, as of the end of each fiscal quarter to occur during the periods
shown, a Consolidated Fixed Charge Coverage Ratio of at least:
Closing Date to November 2, 1997 1.00 to 1.0
November 3, 1997 and thereafter 1.50 to 1.0
(d) Consolidated Interest Coverage Ratio. There shall be maintained, as
of the end of each fiscal quarter to occur during the periods shown, a
Consolidated Interest Coverage Ratio of at least:
Closing Date to November 1, 1998 3.0 to 1.0
November 2, 1998 and thereafter 3.5 to 1.0
(e) Capital Expenditures. The aggregate amount of Capital Expenditures
for the Borrower and its consolidated subsidiaries will not exceed the amounts
shown in the fiscal years set forth below:
1998 $18,000,000
1999 $18,000,000
2000 and thereafter $16,000,000
provided, however, if the Consolidated Leverage Ratio shall fall below 2.0 to
1.0 for the calculation occurring on two consecutive fiscal quarters, then this
Section 7.9(e) shall have no further force and effect.
7.10 AGENCY FEES.
Pay to the Agent the annual agency fee and comply with the other
agreements provided for in the Agent's Fee Letter.
65
<PAGE>
7.11 ADDITIONAL GUARANTIES AND STOCK PLEDGES.
(a) Domestic Subsidiaries. At any time any Person becomes a
Domestic Subsidiary, the Borrower will promptly notify the Agent
thereof and within 15 days of such event, cause such Domestic
Subsidiary to become a Guarantor hereunder by (i) execution of a
Joinder Agreement, (ii) delivery of supporting resolutions, incumbency
certificates, corporation formation and organizational documentation
and opinions of counsel as the Agent may reasonably request, (iii)
delivery of security agreements, mortgages and other related documents
(in a form acceptable to the Agent) necessary to perfect a lien on or
security interest in all material assets of such Domestic Subsidiary
and (iv) delivery of stock certificates and a related pledge agreement
or pledge joinder agreement evidencing the pledge of 100% of the Voting
Stock of such Domestic Subsidiary and of 100% of the Voting Stock of
each of its Domestic Subsidiaries and 65% of the Voting Stock of each
of its Foreign Subsidiaries, together in each case with undated stock
transfer powers executed in blank.
(b) Foreign Subsidiaries. At any time that (i) either of the
Foreign Subsidiaries named on Schedule 7.11-3 has assets with a book
value of $100,000 or more, or (ii) any other Person becomes a Foreign
Subsidiary, then in each such case the Borrower will promptly notify
the Agent thereof and cause (A) delivery of supporting resolutions,
incumbency certificates, corporation formation and organizational
documentation and opinions of counsel as the Agent may reasonably
request, and (B) delivery of stock certificates (where required for
perfection under local law) and a related pledge agreement or pledge
joinder agreement evidencing the pledge of 65% of the Voting Stock of
such Foreign Subsidiary and of 65% of the Voting Stock of each of its
Domestic Subsidiaries and 65% of the Voting Stock of each of its
Foreign Subsidiaries, together in each case with undated stock transfer
powers executed in blank.
7.12 OWNERSHIP OF SUBSIDIARIES.
Except to the extent otherwise permitted in Section 8.7 and except as
set forth on Schedule 6.14, the Borrower shall, directly or indirectly, own at
all times 100% of the Voting Stock of each of its Subsidiaries.
7.13 USE OF PROCEEDS.
Extensions of Credit will be used solely for the purposes provided in
Section 6.15.
7.14 EMPLOYMENT CONTRACTS, ETC.
The Borrower shall deliver or cause to be delivered to the Agent on or
prior to June 30, 1997 copies of executed employment contracts (with non-compete
provisions) with each of John Grosso, Jan Reivenbark and Eric Jeltrup. Such
contracts shall have an employment term of at least two years from the
66
<PAGE>
date of execution and a non-compete term of at least four years from the date of
execution and such other terms and provisions as are typical for employment
contracts of this type and for companies similar to the Borrower.
SECTION 8
NEGATIVE COVENANTS
Each of the Credit Parties covenants and agrees that on the Closing
Date, and so long as this Credit Agreement is in effect and until the
Commitments have been terminated, no Obligations remain outstanding and all
amounts owing hereunder or in connection herewith, have been paid in full, no
member of the Consolidated Group shall:
8.1 INDEBTEDNESS.
Contract, create, incur, assume or permit to exist any Indebtedness,
except:
(a) Indebtedness arising or existing under this Credit
Agreement and the other Credit Documents;
(b) Indebtedness set forth in Schedule 8.1, and renewals,
refinancings and extensions thereof on terms and conditions no less
favorable than for such existing Indebtedness;
(c) Capital Lease Obligations and Indebtedness incurred, in
each case, to provide all or a portion of the purchase price or costs
of construction of an asset, provided that (i) such Indebtedness when
incurred shall not exceed the purchase price or cost of construction of
such asset, (ii) no such Indebtedness shall be refinanced for a
principal amount in excess of the principal balance outstanding thereon
at the time of such refinancing, and (iii) the total amount of all such
Indebtedness shall not exceed $2,500,000 at any time outstanding;
(d) Indebtedness and obligations owing under interest rate
protection agreements relating to the Obligations hereunder and under
interest rate, commodities and foreign currency exchange protection
agreements entered into in the ordinary course of business to manage
existing or anticipated risks and not for speculative purposes;
(e) (i) unsecured intercompany Indebtedness owing by one
Credit Party to another Credit Party and (ii) unsecured intercompany
Indebtedness owing by a Credit Party to a Subsidiary of the Borrower
which is not a Credit Party, in each case to the extent permitted under
Section 8.5 hereof;
(f) other unsecured Indebtedness of the Borrower of up to
$1,000,000 in the aggregate at any time outstanding; and
(g) Guaranty Obligations of Indebtedness permitted under
this Section 8.1.
67
<PAGE>
8.2 LIENS.
Contract, create, incur, assume or permit to exist any Lien with
respect to any of their respective property or assets of any kind (whether real
or personal, tangible or intangible), whether now owned or hereafter acquired,
except for Permitted Liens.
8.3 NATURE OF BUSINESS.
Alter the character of their business in any material respect from that
conducted as of the Closing Date.
8.4 CONSOLIDATION, MERGER, SALE OR PURCHASE OF ASSETS, CAPITAL
EXPENDITURES, ETC.
(a) Dissolve, liquidate or wind up their affairs, except (i) in
connection with a disposition of assets permitted by the terms of subsection (c)
hereof and (ii) for the dissolution and liquidation of a wholly-owned Subsidiary
of a Credit Party where the parent company Credit Party receives the assets of
such Subsidiary;
(b) Enter into any transaction of merger or consolidation; provided,
however, that, so long as no Default or Event of Default would be directly or
indirectly caused as a result thereof, a member of the Consolidated Group may
merge or consolidate with another member of the Consolidated Group, provided
that (A) if the Borrower is a party thereto, the Borrower shall be the surviving
corporation and (B) if one of the parties thereto is a Credit Party, such Credit
Party shall be the surviving corporation;
(c) Sell, lease, transfer or otherwise dispose of any Property
(including without limitation pursuant to any sale/leaseback transaction or
securitization transaction ) other than (i) the sale of inventory in the
ordinary course of business for fair consideration, (ii) the sale or disposition
of machinery and equipment no longer used or useful in the conduct of such
Person's business, and (iii) other sales of assets, provided that after giving
effect to such sale or other disposition, the aggregate book value of assets
sold or otherwise disposed of pursuant to this clause (iii) in any given fiscal
year does not exceed an amount equal to $250,000;
(d) Except as otherwise permitted by Section 7.11, Section 8.4(b) and
Section 8.5 hereof, (i) acquire all or any portion of the capital stock or
securities of any other Person or (ii) purchase, lease or otherwise acquire (in
a single transaction or a series of related transactions) all or any substantial
part of the Property of any other Person; or
(e) Take or permit any action, or fail to take any action, the effect
of which would be to cause a Domestic Credit Party to lose its status as such,
other than as expressly permitted in this Section.
68
<PAGE>
8.5 ADVANCES, INVESTMENTS AND LOANS.
Lend money or extend credit or make advances to any Person, or purchase
or acquire any stock, obligations or securities of, or any other interest in, or
make any capital contribution to, or otherwise make an Investment in, any Person
except for Permitted Investments.
8.6 TRANSACTIONS WITH AFFILIATES.
Enter into or permit to exist any transaction or series of
transactions, whether or not in the ordinary course of business, with any
officer, director, shareholder, Subsidiary or Affiliate other than (i)
transactions permitted by Section 8.1, Section 8.4(b), Section 8.5 or Section
8.10, (ii) customary fees and expenses paid to directors and (iii) where such
transactions are on terms and conditions substantially as favorable as would be
obtainable in a comparable arm's-length transaction with a Person other than an
officer, director, shareholder or Affiliate.
8.7 OWNERSHIP OF EQUITY INTERESTS.
Issue, sell, transfer, pledge or otherwise dispose of any partnership
interests, shares of capital stock or other equity or ownership interests
("Equity Interests") in any member of the Consolidated Group, except (i)
issuance, sale or transfer of Equity Interests to a Credit Party by a Subsidiary
of such Credit Party, (ii) in connection with a transaction permitted by Section
8.4, and (iii) as needed to qualify directors under applicable law.
8.8 FISCAL YEAR.
Change its fiscal year end from the Sunday falling closest to January
31st of each year.
8.9 PREPAYMENTS OF INDEBTEDNESS, ETC.
(a) After the issuance thereof, amend or modify (or permit the
amendment or modification of), the terms of any other Indebtedness in a manner
adverse to the interests of the Lenders (including specifically shortening any
maturity or average life to maturity or requiring any payment sooner than
previously scheduled or increasing the interest rate or fees applicable
thereto);
(b) Make any prepayment, redemption, defeasance or acquisition for
value of (including without limitation, by way of depositing money or securities
with the trustee with respect thereto before due for the purpose of paying when
due), or refund, refinance or exchange of any Funded Debt other than (i)
intercompany Indebtedness permitted hereunder, (ii) regularly scheduled payments
of principal and interest on such Funded Debt, and (iii) to the extent permitted
by Section 8.10.
69
<PAGE>
8.10 Restricted Payments.
Make or permit any Restricted Payments, provided, that the Borrower may
pay dividends on shares of common stock of the Borrower so long as : (a)
immediately before and after making such payment, no Default or Event of Default
then exists or would result from the making of such payment, (b) the Borrower
and its Subsidiaries, after giving effect to such payment on a Pro Forma basis,
will be in compliance with each of the financial covenants contained in Section
7.9 hereof and (c) the aggregate amount of such dividends paid in any fiscal
year shall not exceed 25% of Consolidated Excess Cash Flow for the fiscal year
prior to the year in which such dividends are paid.
8.11 SALE LEASEBACKS.
Directly or indirectly become or remain liable as lessee or as
guarantor or other surety with respect to any lease, whether an Operating Lease
or a Capital Lease, of any Property (whether real or personal or mixed), whether
now owned or hereafter acquired, (i) which such Person has sold or transferred
or is to sell or transfer to any other Person other than a Credit Party or (ii)
which such Person intends to use for substantially the same purpose as any other
Property which has been sold or is to be sold or transferred by such Person to
any other Person in connection with such lease.
8.12 NO FURTHER NEGATIVE PLEDGES.
Except with respect to prohibitions against other encumbrances on
specific Property encumbered to secure payment of particular Indebtedness (which
Indebtedness relates solely to such specific Property, and improvements and
accretions thereto, and is otherwise permitted hereby), no member of the
Consolidated Group will enter into, assume or become subject to any agreement
prohibiting or otherwise restricting the creation or assumption of any Lien upon
its properties or assets, whether now owned or hereafter acquired, or requiring
the grant of any security for such obligation if security is given for some
other obligation.
8.13 AMENDMENTS TO LICENSE AGREEMENTS.
Terminate or permit to expire the Kmart License Agreement or the US
Wal*Mart License Agreement, or close its operations at fifty or more individual
photography studios located in the United States in any single fiscal year
(provided, that, in determining the immediately foregoing, the number of studios
closed during such fiscal year will be offset against the number of studios
opened during such fiscal year) unless, after giving effect to such closings and
any such prior closings or other studio closings, determined as of the end of
the next succeeding fiscal quarter, the Borrower is able to establish to the
satisfaction of the Agent that the Borrower will be in compliance on a Pro Forma
basis with each of the financial covenants contained in Section 7.9 hereof;
provided, however, that notwithstanding the foregoing to the contrary, up to an
additional 415 studios may be closed in calendar year 1997.
70
<PAGE>
SECTION 9
EVENTS OF DEFAULT
9.1 EVENTS OF DEFAULT.
An Event of Default shall exist upon the occurrence of any of the
following specified events (each an "Event of Default"):
(a) Payment. Any Credit Party shall
(i) default in the payment when due of any principal of any of
the Loans or of any reimbursement obligations arising from drawings
under Letters of Credit, or
(ii) default, and such defaults shall continue for three (3)
or more Business Days, in the payment when due of any interest on the
Loans or on any reimbursement obligations arising from drawings under
Letters of Credit, or of any Fees or other amounts owing hereunder,
under any of the other Credit Documents or in connection herewith or
therewith; or
(b) Representations. Any representation, warranty or statement made or
deemed to be made herein, in any of the other Credit Documents, or in any
statement or certificate delivered or required to be delivered pursuant hereto
or thereto shall prove untrue in any material respect on the date as of which it
was deemed to have been made; or
(c) Covenants.
(i) Default in the due performance or observance of any term,
covenant or agreement contained in Section 7.3(a), 7.9, 7.13 or 8.1
through 8.13, inclusive, or
(ii) Default in the due performance or observance by it of any
term, covenant or agreement (other than those referred to in
subsections (a), (b) or (c)(i) of this Section 9.1) contained in this
Credit Agreement and such default shall continue unremedied for a
period of at least 30 days after the earlier of a Responsible Officer
of a Credit Party having knowledge of such default or notice thereof by
the Agent; or
(d) Other Credit Documents. (i) Any Credit Party shall default in the
due performance or observance of any material term, covenant or agreement in any
of the other Credit Documents (subject to applicable grace or cure periods, if
any), or (ii) any Credit Document shall fail to be in full force and effect or
to give the Agent and/or the Lenders any material part of the Liens, rights,
powers and privileges purported to be created thereby or any Credit Party shall
assert the same ; or
(e) Guaranties. Except as to the Credit Party which is dissolved,
merged or consolidated out of existence as the result of or in connection with a
dissolution, merger or
71
<PAGE>
consolidation permitted by Section 8.4(a) or Section 8.4(b), the guaranty given
by any Guarantor hereunder or any material provision thereof shall cease to be
in full force and effect, or any Guarantor hereunder or any Person acting by or
on behalf of such Guarantor shall deny or disaffirm such Guarantor's obligations
under such guaranty, or any Guarantor shall default in the due performance or
observance of any term, covenant or agreement on its part to be performed or
observed pursuant to any guaranty; or
(f) Bankruptcy, etc. Any Bankruptcy Event shall occur with respect to
any member of the Consolidated Group; or
(g) Defaults under Other Agreements.
(i) (A) There shall occur a default (beyond the applicable
grace period with respect thereto, if any) under either the Kmart
License Agreement or the Wal*Mart License Agreement, or (B) any member
of the Consolidated Group shall default in the performance or
observance (beyond the applicable grace period with respect thereto, if
any) of any other material obligation or condition of any contract or
lease material to the Consolidated Group, taken as a whole; or
(ii) With respect to any Indebtedness (other than Indebtedness
outstanding under this Credit Agreement) in excess of $250,000 in the
aggregate for the Consolidated Group taken as a whole, (A) (1) any
member of the Consolidated Group shall default in any payment (beyond
the applicable grace period with respect thereto, if any) with respect
to any such Indebtedness, or (2) the occurrence and continuance of a
default in the observance or performance relating to such Indebtedness
or contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event or condition shall occur or
condition exist, the effect of which default or other event or
condition is to cause, or permit, the holder or holders of such
Indebtedness (or trustee or agent on behalf of such holders) to cause
(determined without regard to whether any notice or lapse of time is
required), any such Indebtedness to become due prior to its stated
maturity; or (B) any such Indebtedness shall be declared due and
payable, or required to be prepaid other than by a regularly scheduled
required prepayment, prior to the stated maturity thereof; or
(h) Judgments. Any member of the Consolidated Group shall fail within
30 days of the date due and payable to pay, bond or otherwise discharge any
judgment, settlement or order for the payment of money which judgment,
settlement or order, when aggregated with all other such judgments, settlements
or orders due and unpaid at such time, exceeds $250,000, and which is not stayed
on appeal (or for which no motion for stay is pending) or is not otherwise being
executed; or
(i) ERISA. Any of the following events or conditions, if such event or
condition could reasonably be expected to have a Material Adverse Effect: (1)
any "accumulated funding deficiency," as such term is defined in Section 302 of
ERISA and Section 412 of the Code, whether or not waived, shall exist with
respect to any Plan, or any lien shall arise on the assets of a member of the
Consolidated Group or any ERISA Affiliate in favor of the PBGC or a Plan; (2)
72
<PAGE>
an ERISA event shall occur with respect to a Single Employer Plan, which is, in
the reasonable opinion of the Agent, likely to result in the termination of such
Plan for purposes of Title IV of ERISA; (3) an ERISA Event shall occur with
respect to a Multiemployer Plan or Multiple Employer Plan, which is, in the
reasonable opinion of the Agent, likely to result in (i) the termination of such
Plan for purposes of Title IV of ERISA, or (ii) a member of the Consolidated
Group or any ERISA Affiliate incurring any liability in connection with a
withdrawal from, reorganization of (within the meaning of Section 4241 of
ERISA), or insolvency of (within the meaning of Section 4245 of ERISA) such
Plan; or (4) any prohibited transaction (within the meaning of Section 406 of
ERISA or Section 4975 of the Code) or breach of fiduciary responsibility shall
occur which may subject a member of the Consolidated Group or any ERISA
Affiliate to any liability under Sections 406, 409, 502(i), or 502(l) of ERISA
or Section 4975 of the Code, or under any agreement or other instrument pursuant
to which a member of the Consolidated Group or any ERISA Affiliate has agreed or
is required to indemnify any person against any such liability; or
(j) Ownership. There shall occur, without the prior written consent of
the Lenders, which consent shall not be unreasonably withheld or delayed, a
Change of Control.
9.2 ACCELERATION; REMEDIES.
Upon the occurrence of an Event of Default, and at any time thereafter,
the Agent shall, upon the request and direction of the Required Lenders, by
written notice to the Credit Parties take any of the following actions:
(i) Termination of Commitments. Declare the Commitments
terminated whereupon the Commitments shall be immediately terminated.
(ii) Acceleration. Declare the unpaid principal of and any
accrued interest in respect of all Loans, any reimbursement obligations
arising from drawings under Letters of Credit and any and all other
indebtedness or obligations of any and every kind owing by the Credit
Parties to the Agent and/or any of the Lenders hereunder to be due
whereupon the same shall be immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which
are hereby waived by each of the Credit Parties.
(iii) Cash Collateral. Direct the Borrower to pay (and the
Borrower agrees that upon receipt of such notice, or upon the
occurrence of an Event of Default under Section 9.1(f), it will
immediately pay) to the Agent additional cash, to be held by the Agent,
for the benefit of the Lenders, in a cash collateral account as
additional security for the LOC Obligations in respect of subsequent
drawings under all then outstanding Letters of Credit in an amount
equal to the maximum aggregate amount which may be drawn under all
Letters of Credits then outstanding.
73
<PAGE>
(iv) Enforcement of Rights. Enforce any and all rights and
interests created and existing under the Credit Documents and all
rights of set-off.
Notwithstanding the foregoing, if an Event of Default specified in Section
9.1(f) shall occur, then the Commitments shall automatically terminate and all
Loans, all reimbursement obligations arising from drawings under Letters of
Credit, all accrued interest in respect thereof, all accrued and unpaid Fees and
other indebtedness or obligations owing to the Agent and/or any of the Lenders
hereunder automatically shall immediately become due and payable without
presentment, demand, protest or the giving of any notice or other action by the
Agent or the Lenders, all of which are hereby waived by the Credit Parties.
SECTION 10
AGENCY PROVISIONS
10.1 APPOINTMENT.
Each Lender hereby designates and appoints NationsBank, N.A. as Agent
(in such capacity, the "Agent") of such Lender to act as specified herein and
the other Credit Documents, and each such Lender hereby authorizes the Agent as
the Agent for such Lender, to take such action on its behalf under the
provisions of this Credit Agreement and the other Credit Documents and to
exercise such powers and perform such duties as are expressly delegated by the
terms hereof and of the other Credit Documents, together with such other powers
as are reasonably incidental thereto. Each Lender further directs and authorizes
the Agent to execute releases (or similar agreements) to give effect to the
provisions of this Credit Agreement and the other Credit Documents.
Notwithstanding any provision to the contrary elsewhere herein and in the other
Credit Documents, the Agent shall not have any duties or responsibilities,
except those expressly set forth herein and therein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Credit Agreement or any of the other Credit Documents, or shall otherwise exist
against the Agent. The provisions of this Section are solely for the benefit of
the Agent and the Lenders and none of the Credit Parties shall have any rights
as a third party beneficiary of the provisions hereof. In performing its
functions and duties under this Credit Agreement and the other Credit Documents,
the Agent shall act solely as Agent of the Lenders and does not assume and shall
not be deemed to have assumed any obligation or relationship of agency or trust
with or for any Credit Party or any of their respective Affiliates.
10.2 DELEGATION OF DUTIES.
The Agent may execute any of their respective duties hereunder or under
the other Credit Documents by or through agents or attorneys-in-fact and shall
be entitled to advice of counsel concerning all matters pertaining to such
duties. The Agent shall not be responsible for the negligence or misconduct of
any agents or attorneys-in-fact selected by it with reasonable care.
74
<PAGE>
10.3 EXCULPATORY PROVISIONS.
The Agent and its officers, directors, employees, agents,
attorneys-in-fact or affiliates shall not be (i) liable for any action lawfully
taken or omitted to be taken by it or such Person under or in connection
herewith or in connection with any of the other Credit Documents (except for its
or such Person's own gross negligence or willful misconduct), or (ii)
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by any of the Credit Parties contained herein
or in any of the other Credit Documents or in any certificate, report, document,
financial statement or other written or oral statement referred to or provided
for in, or received by the Agent under or in connection herewith or in
connection with the other Credit Documents, or enforceability or sufficiency
therefor of any of the other Credit Documents, or for any failure of any Credit
Party to perform its obligations hereunder or thereunder. The Agent shall not be
responsible to any Lender for the effectiveness, genuineness, validity,
enforceability, collectability or sufficiency of this Credit Agreement, or any
of the other Credit Documents or for any representations, warranties, recitals
or statements made herein or therein or made by the Borrower or any Credit Party
in any written or oral statement or in any financial or other statements,
instruments, reports, certificates or any other documents in connection herewith
or therewith furnished or made by the Agent to the Lenders or by or on behalf of
the Credit Parties to the Agent or any Lender or be required to ascertain or
inquire as to the performance or observance of any of the terms, conditions,
provisions, covenants or agreements contained herein or therein or as to the use
of the proceeds of the Loans or the use of the Letters of Credit or of the
existence or possible existence of any Default or Event of Default or, except as
otherwise provided herein, to inspect the properties, books or records of the
Credit Parties or any of their respective Affiliates.
10.4 RELIANCE ON COMMUNICATIONS.
The Agent shall be entitled to rely, and shall be fully protected in
relying, upon any note, writing, resolution, notice, consent, certificate,
affidavit, letter, cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person or
Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to any of the Credit Parties, independent accountants and
other experts selected by the Agent with reasonable care). The Agent may deem
and treat the Lenders as the owner of their respective interests hereunder for
all purposes unless a written notice of assignment, negotiation or transfer
thereof shall have been filed with the Agent in accordance with Section 11.3(b)
hereof. The Agent shall be fully justified in failing or refusing to take any
action under this Credit Agreement or under any of the other Credit Documents
unless it shall first receive such advice or concurrence of the Required Lenders
as it deems appropriate or it shall first be indemnified to its satisfaction by
the Lenders against any and all liability and expense which may be incurred by
it by reason of taking or continuing to take any such action. The Agent shall in
all cases be fully protected in acting, or in refraining from acting, hereunder
or under any of the other Credit Documents in accordance with a request of the
Required Lenders (or to the extent specifically provided in Section 11.6, all
the Lenders) and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders (including their successors and
assigns).
75
<PAGE>
10.5 NOTICE OF DEFAULT.
The Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default hereunder unless the Agent has
received notice from a Lender or a Credit Party referring to the Credit
Document, describing such Default or Event of Default and stating that such
notice is a "notice of default." In the event that the Agent receives such a
notice, the Agent shall give prompt notice thereof to the Lenders. The Agent
shall take such action with respect to such Default or Event of Default as shall
be reasonably directed by the Required Lenders.
10.6 NON-RELIANCE ON AGENT AND OTHER LENDERS.
Each Lender expressly acknowledges that each of the Agent and its
officers, directors, employees, agents, attorneys-in-fact or affiliates has not
made any representations or warranties to it and that no act by the Agent or any
affiliate thereof hereinafter taken, including any review of the affairs of any
Credit Party or any of their respective Affiliates, shall be deemed to
constitute any representation or warranty by the Agent to any Lender. Each
Lender represents to the Agent that it has, independently and without reliance
upon the Agent or any other Lender, and based on such documents and information
as it has deemed appropriate, made its own appraisal of and investigation into
the business, assets, operations, property, financial and other conditions,
prospects and creditworthiness of the Borrower, the other Credit Parties or
their respective Affiliates and made its own decision to make its Loans
hereunder and enter into this Credit Agreement. Each Lender also represents that
it will, independently and without reliance upon the 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 analysis, appraisals and decisions in
taking or not taking action under this Credit Agreement, and to make such
investigation as it deems necessary to inform itself as to the business, assets,
operations, property, financial and other conditions, prospects and
creditworthiness of the Borrower, the other Credit Parties and their respective
Affiliates. Except for notices, reports and other documents expressly required
to be furnished to the Lenders by the Agent hereunder, the Agent shall not have
any duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, assets, property, financial or
other conditions, prospects or creditworthiness of the Borrower, the other
Credit Parties or any of their respective Affiliates which may come into the
possession of the Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates.
10.7 INDEMNIFICATION.
The Lenders agree to indemnify the Agent in its capacity as such (to
the extent not reimbursed by the Borrower and without limiting the obligation of
the Borrower to do so), ratably according to their respective Commitments (or if
the Commitments have expired or been terminated, in accordance with the
respective principal amounts of outstanding Loans and Participation Interests of
the Lenders), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever which may at any time (including without limitation at
any time following the final payment of all of the obligations of the Borrower
hereunder and under the other Credit Documents)
76
<PAGE>
be imposed on, incurred by or asserted against the Agent in its capacity as such
in any way relating to or arising out of this Credit Agreement or the other
Credit Documents or any documents contemplated by or referred to herein or
therein or the transactions contemplated hereby or thereby or any action taken
or omitted by the Agent under or in connection with any of the foregoing;
provided that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the gross negligence or willful
misconduct of the Agent. If any indemnity furnished to the Agent for any purpose
shall, in the opinion of the Agent, be insufficient or become impaired, the
Agent may call for additional indemnity and cease, or not commence, to do the
acts indemnified against until such additional indemnity is furnished. The
agreements in this Section shall survive the repayment of the Loans, LOC
Obligations and other obligations under the Credit Documents and the termination
of the Commitments hereunder.
10.8 AGENT IN ITS INDIVIDUAL CAPACITY.
The Agent and its affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrower, its Subsidiaries
or their respective Affiliates as though the Agent were not the Agent hereunder.
With respect to the Loans made by and all obligations of the Borrower hereunder
and under the other Credit Documents, the Agent shall have the same rights and
powers under this Credit Agreement as any Lender and may exercise the same as
though it were not the Agent, and the terms "Lender" and "Lenders" shall include
the Agent in its individual capacity.
10.9 SUCCESSOR AGENT.
The Agent may, at any time, resign upon 20 days' written notice to the
Lenders. Upon any such resignation, the Required Lenders shall have the right to
appoint a successor Agent. If no successor Agent shall have been so appointed by
the Required Lenders, and shall have accepted such appointment, within 30 days
after the notice of resignation, then the retiring Agent shall select a
successor Agent provided such successor is a Lender hereunder or a commercial
bank organized under the laws of the United States of America or of any State
thereof and has a combined capital and surplus of at least $400,000,000 and is
reasonably acceptable to the Required Lenders. Upon the acceptance of any
appointment as Agent hereunder by a successor, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations as Agent, as appropriate, under this Credit
Agreement and the other Credit Documents and the provisions of this Section 10.9
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent under this Credit Agreement.
77
<PAGE>
SECTION 11
MISCELLANEOUS
11.1 NOTICES.
Except as otherwise expressly provided herein, all notices and other
communications shall have been duly given and shall be effective (i) when
delivered, (ii) when transmitted via telecopy (or other facsimile device) to the
number set out below, (iii) the day following the day on which the same has been
delivered prepaid to a reputable national overnight air courier service, or (iv)
the third Business Day following the day on which the same is sent by certified
or registered mail, postage prepaid, in each case to the respective parties at
the address, in the case of the Borrower, Guarantors and the Agent, set forth
below, and, in the case of the Lenders, set forth on Schedule 11.1, or at such
other address as such party may specify by written notice to the other parties
hereto:
if to the Borrower or the Guarantors:
PCA INTERNATIONAL, INC.
815 Matthews-Mint Hill Road
Matthews, North Carolina 28105
Attn: John Grosso, President
Telephone: (704) 847-8011
Telecopy: (704) 847-1548
with a copy to:
Robinson, Bradshaw & Hinson, P.A.
101 North Tryon Street
Suite 1900
Charlotte, North Carolina 28205
Attn: Thomas B. Henson
Telephone: (704) 377-2536
Telecopy: (704) 378-4000
if to the Agent:
NationsBank, N.A.
101 N. Tryon Street
Independence Center, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attn: Agency Services
Telephone: (704) 386-8388
Telecopy: (704) 386-9923
78
<PAGE>
with a copy to:
NationsBank, N.A.
NationsBank Corporate Center
100 North Tryon Street
Charlotte, North Carolina 28202-4003
Attn: Mark Halmrast
Telephone: (704) 386-0649
Telecopy: (704) 386-1270
and
Moore & Van Allen, PLLC
NationsBank Corporate Center
100 North Tryon Street Floor 47
Charlotte, North Carolina 28202-4003
Attn: Molly McGill
Telephone: (704) 331-1092
Telecopy: (704) 331-1159
11.2 RIGHT OF SET-OFF.
In addition to any rights now or hereafter granted under applicable law
or otherwise, and not by way of limitation of any such rights, upon the
occurrence of an Event of Default, each Lender is authorized at any time and
from time to time, without presentment, demand, protest or other notice of any
kind (all of which rights being hereby expressly waived), to set-off and to
appropriate and apply any and all deposits (general or special) and any other
indebtedness at any time held or owing by such Lender (including, without
limitation branches, agencies or Affiliates of such Lender wherever located) to
or for the credit or the account of any Credit Party against obligations and
liabilities of such Person to such Lender hereunder, under the Notes, the other
Credit Documents or otherwise, irrespective of whether such Lender shall have
made any demand hereunder and although such obligations, liabilities or claims,
or any of them, may be contingent or unmatured, and any such set-off shall be
deemed to have been made immediately upon the occurrence of an Event of Default
even though such charge is made or entered on the books of such Lender
subsequent thereto. Any Person purchasing a participation in the Loans and
Commitments hereunder pursuant to Section 3.13 or Section 11.3(d) may exercise
all rights of set-off with respect to its participation interest as fully as if
such Person were a Lender hereunder. Following the exercise of its rights under
this Section 11.2, such Lender shall make reasonable efforts to notify the
Borrower and/or the relevant Credit Party.
11.3 BENEFIT OF AGREEMENT.
(a) Generally. This Credit Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective successors
and assigns of the parties hereto; provided that none of the Credit
Parties may assign or transfer any of
79
<PAGE>
its interests without prior written consent of the Lenders; provided
further that the rights of each Lender to transfer, assign or grant
participations in its rights and/or obligations hereunder shall be
limited as set forth in this Section 11.3, provided however that
nothing herein shall prevent or prohibit any Lender from (i) pledging
its Loans hereunder to a Federal Reserve Bank in support of borrowings
made by such Lender from such Federal Reserve Bank, or (ii) granting
assignments or selling participations in such Lender's Loans and/or
Commitments hereunder to its parent company and/or to any Affiliate or
Subsidiary of such Lender.
(b) Assignments. Each Lender may assign all or a portion of
its rights and obligations hereunder, pursuant to an assignment
agreement substantially in the form of Schedule 11.3(b), to (i) any
Lender or any Affiliate of a Lender, or (ii) any other commercial bank,
financial institution or "accredited investor" (as defined in
Regulation D of the Securities and Exchange Commission) reasonably
acceptable to the Agent and, so long as no Default or Event of Default
has occurred and is continuing, the Borrower; provided that (A) any
such assignment (other than any assignment to an existing Lender) shall
be in a minimum aggregate amount of $5,000,000 (or, if less, the
remaining amount of the Commitment being assigned by such Lender) of
the Commitments and in integral multiples of $1,000,000 above such
amount and (B) each such assignment shall be of a constant, not
varying, percentage of all such Lender's rights and obligations under
this Credit Agreement. Any assignment hereunder shall be effective upon
delivery to the Agent of written notice of the assignment together,
except in the case of assignments made internally to a Lender's
Affiliate, with a transfer fee of $3,500 payable to the Agent for its
own account from and after the later of (x) the effective date
specified in the applicable assignment agreement and (y) the date of
recording of such assignment in the Register pursuant to the terms of
subsection (c) below. The assigning Lender will give prompt notice to
the Agent and the Borrower of any such assignment. Upon the
effectiveness of any such assignment (and after notice to, and (to the
extent required pursuant to the terms hereof), with the consent of, the
Borrower as provided herein), the assignee shall become a "Lender" for
all purposes of this Credit Agreement and the other Credit Documents
and, to the extent of such assignment, the assigning Lender shall be
relieved of its obligations hereunder to the extent of the Loans and
Commitment components being assigned. Along such lines the Borrower
agrees that upon notice of any such assignment and surrender of the
appropriate Note or Notes, it will promptly provide to the assigning
Lender and to the assignee separate promissory notes in the amount of
their respective interests substantially in the form of the original
Note (but with notation thereon that it is given in substitution for
and replacement of the original Note or any replacement notes thereof).
By executing and delivering an assignment agreement in accordance with
this Section 11.3(b), the assigning Lender thereunder and the assignee
thereunder shall be deemed to confirm to and agree with each other and
the other parties hereto as follows: (i) such assigning Lender warrants
that it is the legal and beneficial owner of the interest being
assigned thereby free and clear of any adverse claim; (ii) except as
set forth in clause (i) above, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in
connection with this Credit Agreement, any of the other Credit
Documents or any other instrument or document furnished pursuant hereto
80
<PAGE>
or thereto, or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Credit Agreement, any of the
other Credit Documents or any other instrument or document furnished
pursuant hereto or thereto or the financial condition of any Credit
Party or any of their respective Affiliates or the performance or
observance by any Credit Party of any of its obligations under this
Credit Agreement, any of the other Credit Documents or any other
instrument or document furnished pursuant hereto or thereto; (iii) such
assignee represents and warrants that it is legally authorized to enter
into such assignment agreement; (iv) such assignee confirms that it has
received a copy of this Credit Agreement, the other Credit Documents
and such other documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into such
assignment agreement; (v) such assignee will independently and without
reliance upon the Agent, such assigning Lender or any other Lender, and
based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or not
taking action under this Credit Agreement and the other Credit
Documents; (vi) such assignee appoints and authorizes the Agent to take
such action on its behalf and to exercise such powers under this Credit
Agreement or any other Credit Document as are delegated to the Agent by
the terms hereof or thereof, together with such powers as are
reasonably incidental thereto; and (vii) such assignee agrees that it
will perform in accordance with their terms all the obligations which
by the terms of this Credit Agreement and the other Credit Documents
are required to be performed by it as a Lender.
(c) Maintenance of Register. The Agent shall maintain at one
of its offices in Charlotte, North Carolina a copy of each Lender
assignment agreement delivered to it in accordance with the terms of
subsection (b) above and a register for the recordation of the identity
of the principal amount, type and Interest Period of each Loan
outstanding hereunder, the names, addresses and the Commitments of the
Lenders pursuant to the terms hereof from time to time (the
"Register"). The Agent will make reasonable efforts to maintain the
accuracy of the Register and to promptly update the Register from time
to time, as necessary. The entries in the Register shall be conclusive
in the absence of manifest error and the Borrower, the Agent and the
Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of
this Credit Agreement. The Register shall be available for inspection
by the Borrower and each Lender, at any reasonable time and from time
to time upon reasonable prior notice.
(d) Participations. Each Lender may sell, transfer, grant or
assign participations in all or any part of such Lender's interests and
obligations hereunder; provided that (i) such selling Lender shall
remain a "Lender" for all purposes under this Credit Agreement (such
selling Lender's obligations under the Credit Documents remaining
unchanged) and the participant shall not constitute a Lender hereunder,
(ii) no such participant shall have, or be granted, rights to approve
any amendment or waiver relating to this Credit Agreement or the other
Credit Documents except to the extent any such amendment or waiver
would (A) reduce the principal of or rate of interest on or Fees in
respect of any Loans in which the participant is participating, (B)
postpone the date fixed for any payment of principal
81
<PAGE>
(including extension of the Termination Date or the date of any
mandatory prepayment), interest or Fees in which the participant is
participating, or (C) release all or substantially all of the
Collateral, and (iii) sub-participations by the participant (except to
an affiliate, parent company or affiliate of a parent company of the
participant) shall be prohibited. In the case of any such
participation, the participant shall not have any rights under this
Credit Agreement or the other Credit Documents (the participant's
rights against the selling Lender in respect of such participation to
be those set forth in the participation agreement with such Lender
creating such participation) and all amounts payable by the Borrower
hereunder shall be determined as if such Lender had not sold such
participation, provided, however, that such participant shall be
entitled to receive additional amounts under Sections 3.6, 3.9, 3.10
and 3.11 on the same basis as if it were a Lender and shall have set
off rights as provided in Section 11.2.
11.4 NO WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of the Agent or any Lender in
exercising any right, power or privilege hereunder or under any other Credit
Document and no course of dealing between the Agent or any Lender and any of the
Credit Parties shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, power or privilege hereunder or under any other
Credit Document preclude any other or further exercise thereof or the exercise
of any other right, power or privilege hereunder or thereunder. The rights and
remedies provided herein are cumulative and not exclusive of any rights or
remedies which the Agent or any Lender would otherwise have. No notice to or
demand on any Credit Party in any case shall entitle the Borrower or any other
Credit Party to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Agent or the Lenders
to any other or further action in any circumstances without notice or demand.
11.5 PAYMENT OF EXPENSES, ETC.
The Borrower agrees to: (i) pay all reasonable out-of-pocket costs and
expenses (A) of the Agent in connection with the negotiation, preparation,
execution and delivery and administration of this Credit Agreement and the other
Credit Documents and the documents and instruments referred to therein
(including, without limitation, the reasonable fees and expenses of Moore & Van
Allen, PLLC, special counsel to the Agent) and any amendment, waiver or consent
relating hereto and thereto including, but not limited to, any such amendments,
waivers or consents resulting from or related to any work-out, renegotiation or
restructure relating to the performance by the Credit Parties under this Credit
Agreement and (B) of the Agent and the Lenders in connection with enforcement of
the Credit Documents and the documents and instruments referred to therein as a
result of the occurrence of a Default or Event of Default (including, without
limitation, in connection with any such enforcement, the reasonable fees and
disbursements of counsel for the Agent and each of the Lenders); (ii) pay and
hold the Agent harmless from and against all reasonable fees, costs and expenses
(including reasonable fees of employees of the Agent or its Affiliates) of
"field audits" of inventory conducted as provided in Section 7.7(b) at any time
a Default or Event of Default then exists; (iii) pay and hold each of the
Lenders harmless from and
82
<PAGE>
against any and all present and future stamp and other similar taxes with
respect to the foregoing matters and save each of the Lenders harmless from and
against any and all liabilities with respect to or resulting from any delay or
omission (other than to the extent attributable to such Lender) to pay such
taxes; and (iv) indemnify each Lender, its officers, directors, employees,
representatives and agents from and hold each of them harmless against any and
all losses, liabilities, claims, damages or expenses (including, without
limitation, reasonable attorneys' fees and expenses) incurred by any of them as
a result of, or arising out of, or in any way related to, or by reason of (A)
any investigation, litigation or other proceeding (whether or not any Lender is
a party thereto) related to the entering into and/or performance of any Credit
Document or the use of proceeds of any Loans (including other extensions of
credit) hereunder or the consummation of any other transactions (including
without limitation the Tender Offer and the Merger) contemplated in any Credit
Document, including, without limitation, the reasonable fees and disbursements
of counsel incurred in connection with any such investigation, litigation or
other proceeding or (B) the presence or Release of any Materials of
Environmental Concern at, under or from any Property owned, operated or leased
by the Borrower or any of its Subsidiaries, or the failure by the Borrower or
any of its Subsidiaries to comply with any Environmental Law (but excluding, in
the case of either of clause (A) or (B) above, any such losses, liabilities,
claims, damages or expenses to the extent incurred by reason of gross negligence
or willful misconduct on the part of the Person to be indemnified).
11.6 AMENDMENTS, WAIVERS AND CONSENTS.
Neither this Credit Agreement nor any other Credit Document nor any of
the terms hereof or thereof may be amended, changed, waived, discharged or
terminated unless such amendment, change, waiver, discharge or termination is in
writing entered into by, or approved in writing by, the Required Lenders and the
Borrower, provided, however, that:
(a) no such amendment, change, waiver, discharge or
termination shall, without the consent of each Lender directly affected
thereby, (i) reduce the rate or extend the time of payment of interest
(other than as a result of waiving the applicability of any
post-default increase in interest rates) on any Loan or fees hereunder,
(ii) extend (A) the termination date of the Commitments of such Lender,
(B) the maturity of any Loan, or any portion or installment thereof, or
(C) the time of payment of any reimbursement obligation, or any portion
thereof, arising from drawings under Letters of Credit, or (iii) reduce
the principal amount on any Loan;
(b) no such amendment, change, waiver, discharge or
termination shall, without the consent of each Lender affected thereby,
(i) increase the Commitment of such Lender over the amount thereof in
effect (it being understood and agreed that a waiver of any Default or
Event of Default or of a mandatory reduction in the total commitments
shall not constitute a change in the terms of any Commitment of any
Lender), (ii) release all or any substantial portion of the collateral
pledged to secure the Obligations hereunder or release any Material
Guarantor from the guaranty obligations hereunder, (iii) amend, modify
or waive any provision of this Section 11.6 or Section 3.6, 3.10, 3.11,
3.12, 3.13, 9.1(a), 11.2, 11.3, 11.5 or 11.9, (iv) reduce any
percentage specified in, or otherwise modify, the
83
<PAGE>
definition of "Required Lenders," or (v) consent to the assignment or
transfer by the Borrower or any other Credit Party of any of its rights
and obligations under (or in respect of) the Credit Documents to which
it is a party; and
(c) no provision of Section 2.2 may be amended without the
consent of the Issuing Lender and no provision of Section 10 may be
amended without the consent of the Agent.
11.7 COUNTERPARTS.
This Credit Agreement may be executed in any number of counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall constitute one and the same instrument. It shall not be necessary in
making proof of this Credit Agreement to produce or account for more than one
such counterpart.
11.8 HEADINGS.
The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Credit Agreement.
11.9 SURVIVAL.
All indemnities set forth herein, including, without limitation, in
Section 2.2(i), 3.9, 10.7 or 11.5 shall survive the execution and delivery of
this Credit Agreement, the making of the Loans, the issuance of the Letters of
Credit, the repayment of the Loans, LOC Obligations and other obligations under
the Credit Documents and the termination of the Commitments hereunder, and all
representations and warranties made by the Credit Parties herein shall survive
delivery of the Notes and the making of the Loans hereunder.
11.10 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE.
(a) THIS CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH
CAROLINA. Any legal action or proceeding with respect to this Credit Agreement
or any other Credit Document may be brought in the courts of the State of North
Carolina in Mecklenburg County, or of the United States for the Western District
of North Carolina, and, by execution and delivery of this Credit Agreement, each
of the Credit Parties hereby irrevocably accepts for itself and in respect of
its property, generally and unconditionally, the nonexclusive jurisdiction of
such courts. Each of the Credit Parties further irrevocably consents to the
service of process out of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to it at the address set out for notices pursuant to Section
11.1, such service to become effective three (3) days after such mailing.
Nothing herein
84
<PAGE>
shall affect the right of the Agent to serve process in any other
manner permitted by law or to commence legal proceedings or to otherwise proceed
against any Credit Party in any other jurisdiction.
(b) Each of the Credit Parties hereby irrevocably waives any objection
which it may now or hereafter have to the laying of venue of any of the
aforesaid actions or proceedings arising out of or in connection with this
Credit Agreement or any other Credit Document brought in the courts referred to
in subsection (a) hereof and hereby further irrevocably waives and agrees not to
plead or claim in any such court that any such action or proceeding brought in
any such court has been brought in an inconvenient forum.
(c) TO THE EXTENT PERMITTED BY LAW, EACH OF THE AGENT, THE LENDERS, THE
BORROWER AND THE CREDIT PARTIES HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS CREDIT AGREEMENT, ANY OF THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
11.11 SEVERABILITY.
If any provision of any of the Credit Documents is determined to be
illegal, invalid or unenforceable, such provision shall be fully severable and
the remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions.
11.12 ENTIRETY.
This Credit Agreement together with the other Credit Documents
represent the entire agreement of the parties hereto and thereto, and supersede
all prior agreements and understandings, oral or written, if any, including any
commitment letters or correspondence relating to the Credit Documents or the
transactions contemplated herein and therein.
11.13 BINDING EFFECT; TERMINATION.
(a) This Credit Agreement shall become effective at such time on or
after the Closing Date when it shall have been executed by the Borrower, the
Guarantors and the Agent, and the Agent shall have received copies hereof
(telefaxed or otherwise) which, when taken together, bear the signatures of each
Lender, and thereafter this Credit Agreement shall be binding upon and inure to
the benefit of the Borrower, the Guarantors, the Agent and each Lender and their
respective successors and assigns.
(b) The term of this Credit Agreement shall be until no Loans, LOC
Obligations or any other amounts payable hereunder or under any of the other
Credit Documents shall remain outstanding and until all of the Commitments
hereunder shall have expired or been terminated.
85
<PAGE>
11.14 CONFIDENTIALITY.
The Agent and the Lenders agree to keep confidential (and to cause
their respective affiliates, officers, directors, employees, agents and
representatives to keep confidential) all information, materials and documents
furnished to the Agent or any such Lender by or on behalf of any Credit Party
(whether before or after the Closing Date) which relates to the Borrower or any
of its Subsidiaries (the "Information"). Notwithstanding the foregoing, the
Agent and each Lender shall be permitted to disclose Information (i) to its
affiliates, officers, directors, employees, agents and representatives in
connection with its participation in any of the transactions evidenced by this
Credit Agreement or any other Credit Documents or the administration of this
Credit Agreement or any other Credit Documents; (ii) to the extent required by
applicable laws and regulations or by any subpoena or similar legal process, or
requested by any Governmental Authority; (iii) to the extent such Information
(A) becomes publicly available other than as a result of a breach of this Credit
Agreement or any agreement entered into pursuant to clause (iv) below, (B)
becomes available to the Agent or such Lender on a non-confidential basis from a
source other than a Credit Party or (C) was available to the Agent or such
Lender on a non-confidential basis prior to its disclosure to the Agent or such
Lender by a Credit Party; (iv) to any assignee or participant (or prospective
assignee or participant) so long as such assignee or participant (or prospective
assignee or participant) first specifically agrees in a writing furnished to and
for the benefit of the Credit Parties to be bound by the terms of this Section
11.14; or (v) to the extent that the Borrower shall have consented in writing to
such disclosure. Nothing set forth in this Section 11.14 shall obligate the
Agent or any Lender to return any materials furnished by the Credit Parties.
11.15 SOURCE OF FUNDS.
Each of the Lenders hereby represents and warrants to the Borrower that
at least one of the following statements is an accurate representation as to the
source of funds to be used by such Lender in connection with the financing
hereunder:
(a) no part of such funds constitutes assets allocated to any
separate account maintained by such Lender in which any employee
benefit plan (or its related trust) has any interest;
(b) to the extent that any part of such funds constitutes
assets allocated to any separate account maintained by such Lender,
such Lender has disclosed to the Borrower the name of each employee
benefit plan whose assets in such account exceed 10% of the total
assets of such account as of the date of such purchase (and, for
purposes of this subsection (b), all employee benefit plans maintained
by the same employer or employee organization are deemed to be a single
plan);
(c) to the extent that any part of such funds constitutes
assets of an insurance company's general account, such insurance
company has complied with all of the requirements of the regulations
issued under Section 401(c)(1)(A) of ERISA; or
86
<PAGE>
(d) such funds constitute assets of one or more specific
benefit plans which such Lender has identified in writing to the
Borrower.
As used in this Section 11.15, the terms "employee benefit plan" and "separate
account" shall have the respective meanings assigned to such terms in Section 3
of ERISA.
11.16 CONFLICT.
To the extent that there is a conflict or inconsistency between any
provision hereof, on the one hand, and any provision of any Credit Document, on
the other hand, this Credit Agreement shall control.
[Signature Page to Follow]
87
<PAGE>
<PAGE>
Exhibit 10(l)
EMPLOYMENT AND NONCOMPETE AGREEMENT
THIS EMPLOYMENT AND NONCOMPETE AGREEMENT ("Agreement"), made and
entered into as of the 28th day of January, 1997, by and between RANDY J.
BATES, an individual resident of Lake Wylie, South Carolina ("Bates"), and PCA
INTERNATIONAL, INC., a North Carolina corporation with its principal executive
offices located in Matthews, North Carolina (the "Company").
IN CONSIDERATION of the promises and the mutual covenants contained
herein, the parties hereto agree as follows:
1. EMPLOYMENT. Subject to the terms and conditions stated herein, and
in consideration of Bates' obligations and covenants, including without
limitation, those obligations and covenants set forth in Section 5 hereof, the
Company agrees to employ Bates, and Bates accepts such employment, as a Special
Advisor to the President and CEO, subject to the order, supervision and
direction of the Chief Executive Officer of the Company (the "CEO").
2. DUTIES. Bates shall serve the Company as Special Advisor and shall
devote to the business of the Company in the performance of his duties as
Special Advisor his best efforts and such time as may be reasonably requested by
the CEO.
In no event, during the Term of Employment, shall Bates be required to
report other than to the President and CEO of the Company. The President and CEO
shall deal with Bates in good faith and shall not require that he relocate his
residence, require unreasonable travel, or require him to perform tasks which
would be demeaning or degrading to one in his position.
As Special Advisor, Bates shall perform such duties as the President
and CEO may prescribe.
3. TERM OF EMPLOYMENT. The term of Bates' employment by the Company
hereunder shall commence as of the date hereof and shall continue for a period
of four (4) months after such commencement date (the "Term of Employment").
4. COMPENSATION. The base monthly compensation rate to be paid to Bates
for the services to be rendered hereunder ("Monthly Base Rate") throughout the
Term of Employment shall be Thirteen Thousand Seven Hundred Fifty and No/100
Dollars ($13,750.00), payable in accordance with the Company's normal payroll
practices, subject to applicable federal and state income and social security
tax withholding requirements. In the event any of the monthly
<PAGE>
payments due
hereunder shall become more than three (3) months past due, Employee shall have
the option to accelerate the remaining payments due hereunder so that they shall
be due and payable in full.
5. NONCOMPETITION, SECRECY AND INVENTIONS.
(a) Bates specifically acknowledges and agrees that his
employment with the Company will bring him in personal contact with accounts and
customers of the Company, and will enable him to acquire valuable information as
to the nature and character of the business of the Company and the requirements
of the accounts and customers of the Company. Bates acknowledges and agrees that
in the event he were to become employed by some other employer or enter the same
or similar business as the Company on his own or in conjunction with others in
competition with the Company, such personal contacts with the customers and
accounts of the Company and the knowledge of such valuable information would
give to Bates an unfair competitive advantage.
Throughout the Term of Employment and for a period of five (5) years
and eight (8) months thereafter (Bates' Term of Employment and the period
thereafter, together, the "Term of the Covenants"), Bates shall not, directly or
indirectly, as principal, agent, manager, employee, partner, shareholder,
director, officer, consultant or otherwise, participate in or engage in the
Lines of Business, as hereinafter defined; provided, however, that Bates may own
up to one percent (1%) of the outstanding securities of any corporation which is
engaged in the Lines of Business (except the Company) so long as such securities
are traded on a national securities exchange or are included in the National
Association of Securities Dealers Quotation System. "Lines of Business" for
purposes of this Section 5 shall mean the provision of portrait photography
services through itinerant or traveling operations or permanent studios or any
other portrait photography service, the processing or developing of photographic
film in connection with such provision and any other lines of business in which
the Company may engage during the Term of Employment.
(b) In performing the covenants set forth in this Section 5
(all of the covenants of Bates set forth in this Section 5, together, the
"Covenants Not to Compete"), Bates shall not, without limitation, during the
Term of the Covenants engage in the Lines of Business with any of the following:
1. any client, account or customer of the Company, or
any subsidiary or affiliate of the Company, that has
done business with the Company or such affiliate or
subsidiary within two (2) years of the date of any
alleged competitive act by Employee;
-2-
<PAGE>
2. any client, account or customer of the Company, or
any subsidiary or any affiliate of the Company, that
has transacted any business with the Company within
the twelve months preceding the date of this
Agreement;
3. Wal-Mart Stores, Inc. or any subsidiary thereof
("Wal-Mart");
4. any affiliate of Wal-Mart, including without
limitation Sam's Wholesale Club, HYPERMART*USA and
Wal-Mart SuperCenters (a "Wal-Mart Affiliate");
5. KMart Corporation or any subsidiary thereof
("KMart");
6. any affiliate of KMart, including without limitation
KMart SuperCenters (a "KMart Affiliate");
7. PETsMART, Inc. or any subsidiary thereof
("PETsMART");
8. any affiliate of PETsMART (a "PETsMART Affiliate");
9. any current or prospective institutional customer
("Institutional Customer");
10. CPI Corp.;
11. Lifetouch National School Studios, Inc.;
12. any Wal-Mart store that does business with the
Company during the Term of the Covenants;
13. any Wal-Mart Affiliate store that does business with
the Company during the Term of the Covenants;
14. any Wal-Mart store with which the Company previously
conducted business but no longer conducts business or
the Board of Directors reasonably expects to do
business during the Term of the Covenants;
15. any Wal-Mart Affiliate store with which the Company
previously conducted business but no longer conducts
business or the Board of Directors reasonably expects
to do business during the Term of the Covenants;
16. any PETsMART store that does business with the
Company during the Term of the Covenants;
-3-
<PAGE>
17. any PETsMART Affiliate store that does business with
the Company during the Term of the Covenants;
18. any PETsMART store with which the Company previously
conducted business but no longer conducts business or
the Board of Directors reasonably expects to do
business during the Term of the Covenants;
19. any PETsMART Affiliate store with which the Company
previously conducted business but no longer conducts
business or the Board of Directors reasonably expects
to do business during the Term of the Covenants;
20. any Institutional Customer with which the Company
previously conducted business but no longer conducts
business or the Board of Directors reasonably expects
to do business during the Term of the Covenants;
21. any KMart store that does business with the Company
during the Term of the Covenants;
22. any KMart store that does business with the Company
during the Term of the Covenants;
23. any KMart store with which the Company previously
conducted business but no longer conducts business or
the Board of Directors reasonably expects to do
business during the Term of the Covenants;
24. any KMart Affiliate store with which the Company
previously conducted business but no longer conducts
business or the Board of Directors reasonably expects
to do business during the Term of the Covenants;
25. Cifra, S.A. de C.V.;
26. Aurrera, S.A. de C.V., a subsidiary of Cifra, S.A. de
C.V.;
27. any other subsidiary of Cifra, S.A. de C.V.;
28. Olan Mills;
29. Expressly Portraits;
30. any employee or former employee of the Company, whose
employment with the Company terminated less than two
(2) years prior to Employee's association with such
employee or former employee, within a ten-mile radius
of any Wal-Mart store or any store
-4-
<PAGE>
in which the Company has engaged in the Lines of
Business within six (6) months prior to Employee's
engaging in the Lines of Business; or
31. any person or entity in the geographic areas listed
in paragraph 10(c) hereinbelow.
(c) In performing the Covenants Not to Compete, Bates shall
not, without limitation, during the Term of the Covenants engage in the Lines of
Business in any of the following geographic areas:
1. The United States of America;
2. The State of Alabama;
3. The State of Arizona;
4. The State of Arkansas;
5. The State of California;
6. The State of Colorado;
7. The State of Connecticut;
8. The State of Delaware;
9. The District of Columbia;
10. The State of Florida;
11. The State of Georgia;
12. The State of Idaho
13. The State of Illinois;
14. The State of Indiana;
15. The State of Iowa;
16. The State of Kansas;
17. The State of Kentucky;
18. The State of Louisiana;
19. The State of Maine;
20. The State of Maryland;
21. The State of Massachusetts;
-5-
<PAGE>
22. The State of Michigan;
23. The State of Minnesota;
24. The State of Mississippi;
25. The State of Missouri;
26. The State of Montana
27. The State of Nebraska;
28. The State of Nevada
29. The State of New Hampshire;
30. The State of New Jersey;
31. The State of New Mexico
32. The State of New York;
33. The State of North Carolina;
34. The State of North Dakota;
35. The State of Ohio;
36. The State of Oklahoma;
37. The State of Oregon;
38. The State of Pennsylvania;
39. The Commonwealth of Puerto Rico;
40. The State of Rhode Island;
41. The State of South Carolina;
42. The State of South Dakota;
43. The State of Tennessee;
44. The State of Texas;
45. The State of Utah
46. The State of Vermont;
47. The State of Virginia;
48. The State of Washington;
-6-
<PAGE>
49. The State of West Virginia;
50. The State of Wisconsin;
51. The State of Wyoming;
52. Mexico;
53. Canada;
54. Puerto Rico;
55. South America;
56. Latin America;
57. Asia;
58. China; and
59. Counties in each State of the United States where the
Company has customers.
(d) As applied to the categories of persons, firms and
entities and geographic areas covered by the Covenants Not to Compete, the
provisions of paragraphs 5(b) and 5(c), respectively, shall be completely
severable and independent, and any invalidity or unenforceability thereof as
applied to any of such persons, firms or entities or geographic areas shall not
affect the validity or enforceability thereof as applied to any one or more of
the other persons, firms or entities or geographic areas.
(e) Throughout the Term of the Covenants, Bates shall not
directly or indirectly cause or attempt to cause any supplier or customer of the
Company, or any of its subsidiaries or affiliates, or any governmental body or
public agency, not to do business with the Company or such subsidiary or
affiliate or -to transfer all or part of its business from the Company-, or such
subsidiary or affiliate, or otherwise interfere or attempt to interfere with any
business relationship between the Company, or any of its subsidiaries or
affiliates, and any of such suppliers, customers, government bodies or public
agencies, unless directed by the Board of Directors of the Company to so do.
(f) Bates acknowledges that irreparable injury will result to
the Company from any breach of the Covenants Not to Compete and there is no
adequate remedy at law to redress a breach or threatened breach of the Covenants
Not to Compete As a result of the foregoing, Bates agrees that the parties
seeking to enforce any of such provisions shall be entitled to an injunction or
other equitable relief against Bates to restrain him from such breach, and Bates
waives any claim or defense that the Company has an adequate remedy at law for
any such breach; provided, however, that nothing contained herein shall prohibit
the Company, or any
-7-
<PAGE>
subsidiary or affiliate of the Company, from pursuing any other remedy it may
have, including without limiting the generality of the foregoing the recovery of
damages.
(g) If any court determines that any provision of this Section
5, or any part thereof, is invalid or unenforceable, the remainder of this
Section 5 shall not thereby be affected and shall be given full effect, without
regard to the invalid portions. If any court determines that any provision of
this Section 5, or any part thereof, is unenforceable because of the duration or
geographic scope of such provision, the parties agree that such court shall have
the power to reduce the duration or scope of such provision, as the case may be,
and the parties agree to request the court to exercise such power, and, in its
reduced form, such provision shall then be enforceable and shall be enforced.
The provisions of this Section 5 shall survive the termination of this
Agreement, for whatever reason.
(h) At all times, both during and after the termination of his
employment, Bates shall keep and retain in confidence and shall not, without the
prior written consent of the Company, disclose to any persons, firm or
corporation or otherwise use for his own benefit or the benefit of another any
of the proprietary, confidential or secret information or trade secrets of the
Company. Further, Bates and the Company agree to keep confidential the terms and
conditions of this Agreement except for such disclosure as may be required (i)
in the event of a breach of this Agreement, (ii) compulsion by law or court
order, or (iii) as may be required by any applicable provision of law.
(i) In consideration of employment, and the compensation paid
to Bates as an employee of the Company, Bates hereby recognizes as the exclusive
property of, and assigns, transfers and conveys to, the Company without further
consideration each invention, discovery or improvement (hereinafter collectively
referred to as "inventions") made, conceived, developed or first reduced to
practice by Bates (whether alone or jointly with others) during the Term of
Employment or within one (1) year thereafter which relates in any way to Bates'
work at the Company or any of its subsidiaries or affiliates. Employee will
communicate to the Company current written records of all such inventions, which
records shall be and remain the property of the Company. Upon request by the
Company, Bates will at any time execute documents assigning to the Company, or
its designees, any such invention or any patent application or patent granted
therefor, and will execute any papers relating thereto. Bates also will give all
reasonable assistance to the Company, or its designee, regarding any litigation
or controversy in connection with his inventions, patent applications, or
patents, all expenses incident thereto to be assumed by the Company.
(j) As additional consideration payable hereunder and specifically as
payment for the Covenants Not to Compete, the Company shall pay to Bates the
Monthly Base Rate beginning at the
-8-
<PAGE>
the end of the Term of Employment throughout the Term of the Covenants. Such
payments shall be made monthly in arrears. In the event any of the monthly
payments due hereunder shall become more than three (3) months past due,
Employee shall have the option to accelerate the remaining payments due
hereunder so that they shall be due and payable in full.
(k) Notwithstanding anything herein to the contrary, any participation
in or engagement in the Lines of Business by Interactive Solutions, Inc., a
North Carolina corporation, or any successor thereto, or by Grant Holcomb, a
resident of North Carolina, shall be a breech of this Section 5 by Employee.
6. GOVERNING LAW. This Agreement shall be construed and governed under
the laws of the State of North Carolina.
7. BINDING NATURE. Except as expressly provided herein, this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective heirs, successors and assigns. The obligations and covenants of Bates
are personal in nature and, as such, are not assignable by him.
8. ENTIRE AGREEMENT; PRIOR ORAL AGREEMENT; AMENDMENT. This Agreement
contains the entire agreement of the parties with respect to the matters set
forth herein and supersedes all prior written and prior or contemporaneous oral
agreements or understandings of the parties hereto. This Agreement confirms and
sets forth the prior oral agreement of the parties as to the terms and
conditions of Bates' employment by the Company stated herein, including without
limitation, the obligations and covenants of Bates set forth in Section 5
hereof, and Bates' agreement to enter into a written employment agreement with
the Company, as of the date his employment by the Company commenced, stating
such terms and conditions. This Agreement may be changed or amended only by an
agreement in writing signed by both parties hereto.
9. SEVERABILITY, INVALIDITY OR UNENFORCEABILITY. The severability,
invalidity or unenforceability of any paragraph or part of any paragraph herein
shall not in any way affect the validity or enforceability of any other
paragraph or any part of any other paragraph.
10. PRIOR AGREEMENTS AND COVENANTS OF BATES. Bates hereby warrants and
represents that he is not a party to any agreement or binding obligation, oral
or written, that would prevent his employment by the Company, and Bates'
execution of this Agreement and his fulfillment of his duties and obligations
hereunder do not and will not violate the provisions of any agreement, contract,
loan document or other binding written or oral obligation.
11. NOTICES. Any notice, offer, acceptance or other document required
or permitted to be given pursuant to any provisions of this Agreement shall be
in writing, signed by or on behalf of the
-9-
<PAGE>
person giving the same, and (as elected by the person giving such notice)
delivered by hand or mailed to the parties at the following addresses by
registered or certified mail, postage prepaid, return receipt requested, or by a
third party company or governmental entity providing delivery services in the
ordinary course of business, which guarantees delivery on a specified date:
If to Bates: Randy J. Bates
7 Sunrise Point Lane
Lake Wylie, South Carolina 29710
If to the Company: PCA International, Inc.
815 Matthews-Mint Hill Road
Matthews, North Carolina 28105
Attention: John Grosso
With copies to: Thomas B. Henson
ROBINSON, BRADSHAW & HINSON, P.A.
One Independence Center
101 North Tryon Street, Suite 1900
Charlotte, North Carolina 28246-1900
(704) 377-2536
or to such other address as any party hereto may designate by complying with the
provisions of this Section 15.
Such notice shall be deemed given (i) as of the date of written
acknowledgment by Bates or an officer of the Company if delivered by hand, (ii)
seventy-two (72) hours after deposit in United States mail if sent by registered
or certified mail or (iii) on the delivery date guaranteed by the third party
delivery service if sent by such service.
Rejection or other refusal to accept or inability to deliver because of
changed address of which no notice has been received shall not affect the date
upon which the notice is deemed to have been given pursuant hereto.
Notwithstanding the foregoing, no notice of change of address shall be effective
until the date of receipt hereof.
16. STOCK OPTION GRANT. Bates will be granted an option to purchase
100,000 shares of the Company's common stock on the date hereof, having an
exercise price equal to 100% of the closing price at which a share of Common
Stock trades on the date of the grant's Effective Date, all as defined in the
PCA International, Inc. 1996 Omnibus Long-Term Compensation Plan (the "Plan").
Such option shall be treated as a nonqualified stock option for federal income
tax purposes. Such option shall terminate on a date that is five (5) years
following the date of grant and shall not terminate for any reason prior to such
date, including without limitation, the termination of Bates' employment
hereunder. Upon the death of Bates within such 5 year period, the options
granted hereunder will
-10-
<PAGE>
be transferred to his estate or as directed in his will. Such options shall be
exercisable in full on the grant's Effective Date.
IN WITNESS WHEREOF, Randy J. Bates has set his hand and seal hereto
and PCA International, Inc. has caused this Agreement to be executed and
sealed in its name by its duly authorized officials as of the day and year
first above written.
BATES:
/s/ Randy J. Bates
------------------------(SEAL)
RANDY J. BATES
COMPANY:
PCA INTERNATIONAL, INC.
By: /s/ John Grosso
--------------------------------
John Grosso
President and CEO
-11-
<PAGE>
Exhibit 10(m)
EMPLOYMENT AND NONCOMPETE AGREEMENT
THIS EMPLOYMENT AND NONCOMPETE AGREEMENT ("Agreement"), made and
entered into as of the 28th day of January, 1997, by and between ROBERT KENT
SMITH, an individual resident of Charlotte, North Carolina ("Smith"), and PCA
INTERNATIONAL, INC., a North Carolina corporation with its principal executive
offices located in Matthews, North Carolina (the "Company").
IN CONSIDERATION of the promises and the mutual covenants contained
herein, the parties hereto agree as follows:
1. EMPLOYMENT. Subject to the terms and conditions stated herein, and
in consideration of Smith's obligations and covenants, including without
limitation, those obligations and covenants set forth in Section 5 hereof, the
Company agrees to employ Smith, and Smith accepts such employment, as a Special
Advisor to the President and CEO, subject to the order, supervision and
direction of the Chief Executive Officer of the Company (the "CEO").
2. DUTIES. Smith shall serve the Company as Special Advisor and shall
devote to the business of the Company in the performance of his duties as
Special Advisor his best efforts and such time as may be reasonably requested by
the CEO.
In no event, during the Term of Employment, shall Smith be required to
report other than to the President and CEO of the Company. The President and CEO
shall deal with Smith in good faith and shall not require that he relocate his
residence, require unreasonable travel, or require him to perform tasks which
would be demeaning or degrading to one in his position.
As Special Advisor, Smith shall perform such duties as the President
and CEO may prescribe.
3. TERM OF EMPLOYMENT. The term of Smith's employment by the Company
hereunder shall commence as of the date hereof and shall continue for a period
of four (4) months after such commencement date (the "Term of Employment").
4. COMPENSATION. The base monthly compensation rate to be paid to Smith
for the services to be rendered hereunder ("Monthly Base Rate") throughout the
Term of Employment shall be Twelve Thousand Eight Hundred Thirty-Three and
No/100 Dollars ($12,833.00), payable in accordance with the Company's normal
payroll practices, subject to applicable federal and state income and social
security tax withholding requirements. In the event any of the monthly payments
due hereunder shall become more than three (3) months past due, Employee shall
have the option to accelerate
<PAGE>
the remaining payments due hereunder so that they shall be due and payable in
full.
5. NONCOMPETITION, SECRECY AND INVENTIONS.
(a) Smith specifically acknowledges and agrees that his
employment with the Company will bring him in personal contact with accounts and
customers of the Company, and will enable him to acquire valuable information as
to the nature and character of the business of the Company and the requirements
of the accounts and customers of the Company. Smith acknowledges and agrees that
in the event he were to become employed by some other employer or enter the same
or similar business as the Company on his own or in conjunction with others in
competition with the Company, such personal contacts with the customers and
accounts of the Company and the knowledge of such valuable information would
give to Smith an unfair competitive advantage.
Throughout the Term of Employment and for a period of five (5) years
and eight (8) months thereafter (Smith's Term of Employment and the period
thereafter, together, the "Term of the Covenants"), Smith shall not, directly or
indirectly, as principal, agent, manager, employee, partner, shareholder,
director, officer, consultant or otherwise, participate in or engage in the
Lines of Business, as hereinafter defined; provided, however, that Smith may own
up to one percent (1%) of the outstanding securities of any corporation which is
engaged in the Lines of Business (except the Company) so long as such securities
are traded on a national securities exchange or are included in the National
Association of Securities Dealers Quotation System. "Lines of Business" for
purposes of this Section 5 shall mean the provision of portrait photography
services through itinerant or traveling operations or permanent studios or any
other portrait photography service, the processing or developing of photographic
film in connection with such provision and any other lines of business in which
the Company may engage during the Term of Employment.
(b) In performing the covenants set forth in this Section 5
(all of the covenants of Smith set forth in this Section 5, together, the
"Covenants Not to Compete"), Smith shall not, without limitation, during the
Term of the Covenants engage in the Lines of Business with any of the following:
1. any client, account or customer of the Company, or
any subsidiary or affiliate of the Company, that has
done business with the Company or such affiliate or
subsidiary within two (2) years of the date of any
alleged competitive act by Employee;
2. any client, account or customer of the Company, or
any subsidiary or any affiliate of the Company,
-3-
<PAGE>
that has transacted any business with the Company
within the twelve months preceding the date of this
Agreement;
3. Wal-Mart Stores, Inc. or any subsidiary thereof
("Wal-Mart");
4. any affiliate of Wal-Mart, including without
limitation Sam's Wholesale Club, HYPERMART*USA and
Wal-Mart SuperCenters (a "Wal-Mart Affiliate");
5. KMart Corporation or any subsidiary thereof
("KMart");
6. any affiliate of KMart, including without limitation
KMart SuperCenters (a "KMart Affiliate");
7. PETsMART, Inc. or any subsidiary thereof
("PETsMART");
8. any affiliate of PETsMART (a "PETsMART Affiliate");
9. any current or prospective institutional customer
("Institutional Customer");
10. CPI Corp.;
11. Lifetouch National School Studios, Inc.;
12. any Wal-Mart store that does business with the
Company during the Term of the
Covenants;
13. any Wal-Mart Affiliate store that does business with
the Company during the Term of the Covenants;
14. any Wal-Mart store with which the Company previously
conducted business but no longer conducts business or
the Board of Directors reasonably expects to do
business during the Term of the Covenants;
15. any Wal-Mart Affiliate store with which the Company
previously conducted business but no longer conducts
business or the Board of Directors reasonably expects
to do business during the Term of the Covenants;
16. any PETsMART store that does business with the
Company during the Term of the Covenants;
17. any PETsMART Affiliate store that does business with
the Company during the Term of the Covenants;
-3-
<PAGE>
18. any PETsMART store with which the Company previously
conducted business but no longer conducts business or
the Board of Directors reasonably expects to do
business during the Term of the Covenants;
19. any PETsMART Affiliate store with which the Company
previously conducted business but no longer conducts
business or the Board of Directors reasonably expects
to do business during the Term of the Covenants;
20. any Institutional Customer with which the Company
previously conducted business but no longer conducts
business or the Board of Directors reasonably expects
to do business during the Term of the Covenants;
21. any KMart store that does business with the Company
during the Term of the Covenants;
22. any KMart store that does business with the Company
during the Term of the Covenants;
23. any KMart store with which the Company previously
conducted business but no longer conducts business or
the Board of Directors reasonably expects to do
business during the Term of the Covenants;
24. any KMart Affiliate store with which the Company
previously conducted business but no longer conducts
business or the Board of Directors reasonably expects
to do business during the Term of the Covenants;
25. Cifra, S.A. de C.V.;
26. Aurrera, S.A. de C.V., a subsidiary of Cifra, S.A. de
C.V.;
27. any other subsidiary of Cifra, S.A. de C.V.;
28. Olan Mills;
29. Expressly Portraits;
30. any employee or former employee of the Company, whose
employment with the Company terminated less than two
(2) years prior to Employee's association with such
employee or former employee, within a ten-mile radius
of any Wal-Mart store or any store in which the
Company has engaged in the Lines of Business within
six (6) months prior to Employee's engaging in the
Lines of Business; or
-4-
<PAGE>
31. any person or entity in the geographic areas listed
in paragraph 10(c) hereinbelow.
(c) In performing the Covenants Not to Compete, Smith shall
not, without limitation, during the Term of the Covenants engage in the Lines of
Business in any of the following geographic areas:
1. The United States of America;
2. The State of Alabama;
3. The State of Arizona;
4. The State of Arkansas;
5. The State of California;
6. The State of Colorado;
7. The State of Connecticut;
8. The State of Delaware;
9. The District of Columbia;
10. The State of Florida;
11. The State of Georgia;
12. The State of Idaho
13. The State of Illinois;
14. The State of Indiana;
15. The State of Iowa;
16. The State of Kansas;
17. The State of Kentucky;
18. The State of Louisiana;
19. The State of Maine;
20. The State of Maryland;
21. The State of Massachusetts;
22. The State of Michigan;
23. The State of Minnesota;
-5-
<PAGE>
24. The State of Mississippi;
25. The State of Missouri;
26. The State of Montana
27. The State of Nebraska;
28. The State of Nevada
29. The State of New Hampshire;
30. The State of New Jersey;
31. The State of New Mexico
32. The State of New York;
33. The State of North Carolina;
34. The State of North Dakota;
35. The State of Ohio;
36. The State of Oklahoma;
37. The State of Oregon;
38. The State of Pennsylvania;
39. The Commonwealth of Puerto Rico;
40. The State of Rhode Island;
41. The State of South Carolina;
42. The State of South Dakota;
43. The State of Tennessee;
44. The State of Texas;
45. The State of Utah
46. The State of Vermont;
47. The State of Virginia;
48. The State of Washington;
49. The State of West Virginia;
50. The State of Wisconsin;
-6-
<PAGE>
51. The State of Wyoming;
52. Mexico;
53. Canada;
54. Puerto Rico;
55. South America;
56. Latin America;
57. Asia;
58. China; and
56. Counties in each State of the United States where the
Company has customers.
(d) As applied to the categories of persons, firms and
entities and geographic areas covered by the Covenants Not to Compete, the
provisions of paragraphs 5(b) and 5(c), respectively, shall be completely
severable and independent, and any invalidity or unenforceability thereof as
applied to any of such persons, firms or entities or geographic areas shall not
affect the validity or enforceability thereof as applied to any one or more of
the other persons, firms or entities or geographic areas.
(e) Throughout the Term of the Covenants, Smith shall not
directly or indirectly cause or attempt to cause any supplier or customer of the
Company, or any of its subsidiaries or affiliates, or any governmental body or
public agency, not to do business with the Company or such subsidiary or
affiliate or -to transfer all or part of its business from the Company-, or such
subsidiary or affiliate, or otherwise interfere or attempt to interfere with any
business relationship between the Company, or any of its subsidiaries or
affiliates, and any of such suppliers, customers, government bodies or public
agencies, unless directed by the Board of Directors of the Company to so do.
(f) Smith acknowledges that irreparable injury will result to
the Company from any breach of the Covenants Not to Compete and there is no
adequate remedy at law to redress a breach or threatened breach of the Covenants
Not to Compete As a result of the foregoing, Smith agrees that the parties
seeking to enforce any of such provisions shall be entitled to an injunction or
other equitable relief against Smith to restrain him from such breach, and Smith
waives any claim or defense that the Company has an adequate remedy at law for
any such breach; provided, however, that nothing contained herein shall prohibit
the Company, or any subsidiary or affiliate of the Company, from pursuing any
other remedy it may have, including without limiting the generality of the
foregoing the recovery of damages.
-7-
<PAGE>
(g) If any court determines that any provision of this Section
5, or any part thereof, is invalid or unenforceable, the remainder of this
Section 5 shall not thereby be affected and shall be given full effect, without
regard to the invalid portions. If any court determines that any provision of
this Section 5, or any part thereof, is unenforceable because of the duration or
geographic scope of such provision, the parties agree that such court shall have
the power to reduce the duration or scope of such provision, as the case may be,
and the parties agree to request the court to exercise such power, and, in its
reduced form, such provision shall then be enforceable and shall be enforced.
The provisions of this Section 5 shall survive the termination of this
Agreement, for whatever reason.
(h) At all times, both during and after the termination of his
employment, Smith shall keep and retain in confidence and shall not, without the
prior written consent of the Company, disclose to any persons, firm or
corporation or otherwise use for his own benefit or the benefit of another any
of the proprietary, confidential or secret information or trade secrets of the
Company. Further, Smith and the Company agree to keep confidential the terms and
conditions of this Agreement except for such disclosure as may be required (i)
in the event of a breach of this Agreement, (ii) compulsion by law or court
order, or (iii) as may be required by any applicable provision of law.
(i) In consideration of employment, and the compensation paid
to Smith as an employee of the Company, Smith hereby recognizes as the exclusive
property of, and assigns, transfers and conveys to, the Company without further
consideration each invention, discovery or improvement (hereinafter collectively
referred to as "inventions") made, conceived, developed or first reduced to
practice by Smith (whether alone or jointly with others) during the Term of
Employment or within one (1) year thereafter which relates in any way to Smith's
work at the Company or any of its subsidiaries or affiliates. Employee will
communicate to the Company current written records of all such inventions, which
records shall be and remain the property of the Company. Upon request by the
Company, Smith will at any time execute documents assigning to the Company, or
its designees, any such invention or any patent application or patent granted
therefor, and will execute any papers relating thereto. Smith also will give all
reasonable assistance to the Company, or its designee, regarding any litigation
or controversy in connection with his inventions, patent applications, or
patents, all expenses incident thereto to be assumed by the Company.
(j) As additional consideration payable hereunder and specifically as
payment for the Covenants Not to Compete, the Company shall pay to Smith the
Monthly Base Rate beginning at the end of the Term of Employment throughout the
Term of the Covenants. Such payments shall be made monthly in arrears. In the
event any of the monthly payments due hereunder shall become more than three (3)
months past due, Employee shall have the option to accelerate
-8-
<PAGE>
the remaining payments due hereunder so that they shall be due and payable in
full.
(k) Notwithstanding anything herein to the contrary, any participation
in or engagement in the Lines of Business by Interactive Solutions, Inc., a
North Carolina corporation, or any successor thereto, or by Grant Holcomb, a
resident of North Carolina, shall be a breech of this Section 5 by Employee.
6. GOVERNING LAW. This Agreement shall be construed and governed under
the laws of the State of North Carolina.
7. BINDING NATURE. Except as expressly provided herein, this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective heirs, successors and assigns. The obligations and covenants of Smith
are personal in nature and, as such, are not assignable by him.
8. ENTIRE AGREEMENT; PRIOR ORAL AGREEMENT; AMENDMENT. This Agreement
contains the entire agreement of the parties with respect to the matters set
forth herein and supersedes all prior written and prior or contemporaneous oral
agreements or understandings of the parties hereto. This Agreement confirms and
sets forth the prior oral agreement of the parties as to the terms and
conditions of Smith's employment by the Company stated herein, including without
limitation, the obligations and covenants of Smith set forth in Section 5
hereof, and Smith's agreement to enter into a written employment agreement with
the Company, as of the date his employment by the Company commenced, stating
such terms and conditions. This Agreement may be changed or amended only by an
agreement in writing signed by both parties hereto.
9. SEVERABILITY, INVALIDITY OR UNENFORCEABILITY. The severability,
invalidity or unenforceability of any paragraph or part of any paragraph herein
shall not in any way affect the validity or enforceability of any other
paragraph or any part of any other paragraph.
10. PRIOR AGREEMENTS AND COVENANTS OF SMITH. Smith hereby warrants and
represents that he is not a party to any agreement or binding obligation, oral
or written, that would prevent his employment by the Company, and Smith's
execution of this Agreement and his fulfillment of his duties and obligations
hereunder do not and will not violate the provisions of any agreement, contract,
loan document or other binding written or oral obligation.
11. NOTICES. Any notice, offer, acceptance or other document required
or permitted to be given pursuant to any provisions of this Agreement shall be
in writing, signed by or on behalf of the person giving the same, and (as
elected by the person giving such notice) delivered by hand or mailed to the
parties at the following addresses by registered or certified mail, postage
prepaid, return receipt requested, or by a third party company or governmental
-9-
<PAGE>
entity providing delivery services in the ordinary course of business, which
guarantees delivery on a specified date:
If to Smith: Robert Kent Smith
7042 Ballentyne Court
Charlotte, North Carolina 28210
If to the Company: PCA International, Inc.
815 Matthews-Mint Hill Road
Matthews, North Carolina 28105
Attention: John Grosso
With copies to: Thomas B. Henson
ROBINSON, BRADSHAW & HINSON, P.A.
One Independence Center
101 North Tryon Street, Suite 1900
Charlotte, North Carolina 28246-1900
(704) 377-2536
or to such other address as any party hereto may designate by complying with the
provisions of this Section 15.
Such notice shall be deemed given (i) as of the date of written
acknowledgment by Smith or an officer of the Company if delivered by hand, (ii)
seventy-two (72) hours after deposit in United States mail if sent by registered
or certified mail or (iii) on the delivery date guaranteed by the third party
delivery service if sent by such service.
Rejection or other refusal to accept or inability to deliver because of
changed address of which no notice has been received shall not affect the date
upon which the notice is deemed to have been given pursuant hereto.
Notwithstanding the foregoing, no notice of change of address shall be effective
until the date of receipt hereof.
16. STOCK OPTION GRANT. Smith will be granted an option to purchase
100,000 shares of the Company's common stock on the date hereof, having an
exercise price equal to 100% of the closing price at which a share of Common
Stock trades on the date of the grant's Effective Date, all as defined in the
PCA International, Inc. 1996 Omnibus Long-Term Compensation Plan (the "Plan").
Such option shall be treated as a nonqualified stock option for federal income
tax purposes. Such option shall terminate on a date that is five (5) years
following the date of grant and shall not terminate for any reason prior to such
date, including without limitation, the termination of Smith's employment
hereunder. Upon the death of Smith within such 5 year period, the options
granted hereunder will be transferred to his estate or as directed in his will.
Such options shall be exercisable in full on the grant's Effective Date.
-10-
<PAGE>
IN WITNESS WHEREOF, Robert Kent Smith has set his hand and seal hereto
and PCA International, Inc. has caused this Agreement to be executed and sealed
in its name by its duly authorized officials as of the day and year first above
written.
SMITH:
/s/ Robert Kent Smith
----------------------(SEAL)
ROBERT KENT SMITH
COMPANY:
PCA INTERNATIONAL, INC.
By: /s/ John Grosso
-----------------------
John Grosso
President and CEO
-11-
<PAGE>
Exhibit 10(n)
EMPLOYMENT AND NONCOMPETE AGREEMENT
THIS EMPLOYMENT AND NONCOMPETE AGREEMENT ("Agreement"), made and
entered into as of the 28th day of January, 1997, by and between J. ROBERT
WREN, JR., an individual resident of Gastonia, North Carolina ("Employee") , and
PCA INTERNATIONAL, INC., a North Carolina corporation with its principal
executive offices located in Matthews, North Carolina (the "Company").
IN CONSIDERATION of the promises and the mutual covenants contained
herein, the parties hereto agree as follows:
1. EMPLOYMENT. Subject to the terms and conditions stated herein, and
in consideration of Employee's obligations and covenants, including without
limitation, those obligations and covenants set forth in Section 9 hereof, the
Company agrees to employ Employee on an active and full-time basis, and Employee
accepts such employment, as an Executive Vice President, General Counsel and
Assistant to the Chief Executive Officer, subject to the order, supervision and
direction of the Chief Executive Officer of the Company (the "CEO") (the "CEO").
2. DUTIES. Employee shall serve the Company as an Executive Vice
President, General Counsel and Assistant to the Chief Executive Officer and
shall devote his full business time, skill and best efforts to the business of
the Company and faithfully perform such executive, administrative and
supervisory duties as may be prescribed by the CEO. Employee shall act at all
times in compliance, in all material respects, with all policies, rules and
decisions adopted from time to time by the Board of Directors of which Employee
shall have received written notice. The CEO shall deal with the Employee in good
faith and shall not require that Employee be required to relocate his residence,
travel to the extent that he must spend more nights away from home than are
reasonably required to further the Company's business, or perform tasks which
would be demeaning or degrading to, one in his position.
3. TERM OF EMPLOYMENT. The term of Employee's employment by the Company
hereunder shall commence as of the date hereof and shall continue for a period
of three (3) years after such commencement date (the "Term of Employment").
4. BASE COMPENSATION. The base annual compensation rate to be paid to
Employee for the services to be rendered hereunder ("Base
<PAGE>
Rate") throughout the Term of Employment, except to the extent adjusted as
provided below, shall be Two Hundred and Fifty Thousand Dollars ($250,000.00),
payable in accordance with the Company's normal payroll practices, subject to
applicable federal and state income and social security tax withholding
requirements. Employee's Base Rate may be reviewed from time to time by the CEO
and adjusted upward as Employee's performance, the performance of the Company
and other pertinent factors warrant.
5. TERMINATION WITHOUT CAUSE. (a) The Board of Directors or the CEO may
terminate Employee's employment at any time, without cause. However, in the
event of a termination during, at the end of or after the Term of Employment,
other than a Termination for Cause, as hereinafter defined, the Company will pay
in equal monthly installments the following severance:
(i) if such termination occurs during the first 12 months hereof, the
Base Rate for the balance of the term of this Employment Agreement;
(ii) if such termination occurs after the first 12 months hereof, but
prior to the end of the Term of Employment, 200% of the Base Rate. Such payments
shall be made in accordance with the Company's normal payroll practices, subject
to applicable federal and state income and social security tax withholding
requirements.
(b) Employee understands and agrees that this Agreement will not be
renewed at the end of the Term of Employment. In the event the Company does not
offer employment to Employee at the end of the Term of Employment or thereafter
upon the same or better terms and conditions as set forth herein, such event
shall be deemed a termination other than a Termination for Cause and Employee
shall be paid in a lump sum within 10 days of such termination severance equal
to the Base Rate.
(c) Notwithstanding anything herein to the contrary, Employee may
terminate this Employment Agreement at any time after the first 12 months hereof
and receive the following severance:
(i) if such termination occurs during the second 12 months hereof, 200%
of the Base Rate payable in equal monthly installments;
(ii) if such termination occurs during the third 12 months hereof, 100%
of the Base Rate payable in equal monthly installments; or
(iii) if such termination occurs at any time after the first 36 months
hereof, 100% of the Base Rate payable in equal monthly installments.
-2-
<PAGE>
(d) The provisions of sub-paragraph (b) and (c)(iii), above, shall
survive the end of the Term of Employment.
(e) In the event any of the monthly payments due hereunder shall become
more than three (3) months past due, Employee shall have the option to
accelerate the remaining payments due hereunder so that they shall be due and
payable in full.
6. TERMINATION FOR CAUSE.
(a) The Board of Directors or the CEO shall have the right at
any time, without advance notice, to terminate Employee's employment for cause,
as hereinafter defined ("Termination for Cause").
(b) Termination for Cause shall mean termination because of
Employee's death, inability to perform his duties hereunder due to an insured
disability, theft from the Company, embezzlement of the Company's funds,
falsification of the Company's records, fraud committed against the Company,
commission of a felonious criminal act involving the Company or while engaged in
conduct of the Company's business, incompetence due to the use of or reporting
to work under the influence of alcohol, narcotics, other unlawful drugs or
controlled substances, legal incapacity, insanity, act or acts involving
dishonesty or misconduct which have or may reasonably be expected to have a
material adverse effect on the business or reputation of the Company, breach of
fiduciary duty to the Company, willful and substantial failure to perform stated
duties or lawful directives of the Board of Directors subject to the provisions
of Section 2 hereof, the CEO or other officer of the Company designated by the
CEO, or material breach of any provision of this Agreement, including without
limitation voluntary termination of this Agreement during the first 12 months of
this Employment Agreement.
(c) In the event of a Termination for Cause, Employee shall
have no right thereafter to receive any compensation or other benefits from the
Company, except for COBRA and rights under vested stock option grants.
(d) The provisions of Section 9 hereof shall continue to be
binding on the parties hereto notwithstanding the termination without cause or
Termination for Cause of Employee.
7. FRINGE BENEFITS, BONUS AND TENURE. Employee shall be entitled to
receive such fringe benefits, including vacation and employee benefit plans, if
any, as are set forth on Exhibit A hereto. Employee shall have the right to
fully participate in any bonus program to the same extent as that provided to
other Executive Vice Presidents or other similarly situated executives. For all
-3-
<PAGE>
purposes related to Employee's tenure as an employee, his tenure at American
Studios, Inc. shall be added to his tenure at the Company.
8. EXPENSES. The Company shall reimburse Employee for those expenses
that are incurred by him in connection with the performance of his duties under
this Agreement that are consistent with Company policies and practices, are
reasonably related to the business of the Company and have been approved,
generally or specifically, verbally or in writing, by the CEO.
9. NONCOMPETITION, SECRECY AND INVENTIONS.
(a) Employee specifically acknowledges and agrees that his
employment with the Company will bring him in personal contact with accounts and
customers of the Company, and will enable him to acquire valuable information as
to the nature and character of the business of the Company and the requirements
of the accounts and customers of the Company. Employee acknowledges and agrees
that in the event he were to become employed by some other employer or enter the
same or similar business as the Company on his own or in conjunction with others
in competition with the Company, such personal contacts with the customers and
accounts of the Company and the knowledge of such valuable information would
give to Employee an unfair competitive advantage.
Throughout the Term of Employment and for a period of two (2) years
thereafter (Employee's Term of Employment and the two-year period thereafter,
together, the "Term of the Covenants"), Employee shall not, directly or
indirectly, as principal, agent, manager, employee, partner, shareholder,
director, officer, consultant or otherwise, participate in or engage in the
Lines of Business, as hereinafter defined; provided, however, that Employee may
own up to one percent (1%) of the outstanding securities of any corporation
which is engaged in the Lines of Business, so long as such securities are traded
on a national securities exchange or are included in the National Association of
Securities Dealers Quotation System. "Lines of Business" for purposes of this
Section 9 shall mean the provision of portrait photography services through
itinerant or traveling operations or permanent studios or any other portrait
photography service, the processing or developing of photographic film in
connection with such provision and any other lines of business in which the
Company may engage during the Term of Employment.
(b) In performing the covenants set forth in this Section 9
(all of the covenants of Employee set forth in this Section 9, together, the
"Covenants Not to Compete"), Employee shall not, without limitation, during the
Term of the Covenants engage in the Lines of Business with any of the following:
-4-
<PAGE>
1. any client, account or customer of the Company, or
any subsidiary or affiliate of the Company, that has
done business with the Company or such affiliate or
subsidiary within two (2) years of the date of any
alleged competitive act by Employee;
2. any client, account or customer of the Company, or
any subsidiary or any affiliate of the Company, that
has transacted any business with the Company within
the twelve months preceding the date of this
Agreement;
3. Wal-Mart Stores, Inc. or any subsidiary thereof
("Wal-Mart");
4. any affiliate of Wal-Mart, including without
limitation Sam's Wholesale Club, HYPERMART*USA and
Wal-Mart SuperCenters (a "Wal-Mart Affiliate");
5. KMart Corporation or any subsidiary thereof
("KMart");
6. any affiliate of KMart, including without limitation
KMart SuperCenters (a "KMart Affiliate");
7. PETsMART, Inc. or any subsidiary thereof
("PETsMART");
8. any affiliate of PETsMART (a "PETsMART Affiliate");
9. any current or prospective institutional customer
("Institutional Customer");
10. CPI Corp.;
11. Lifetouch National School Studios, Inc.;
12. any Wal-Mart store that does business with the
Company during the Term of the Covenants;
13. any Wal-Mart Affiliate store that does business with
the Company during the Term of the Covenants;
14. any Wal-Mart store with which the Company previously
conducted business but no longer conducts business or
the Board of Directors reasonably expects to do
business during the Term of the Covenants;
15. any Wal-Mart Affiliate store with which the Company
previously conducted business but no longer
-5-
<PAGE>
conducts business or the Board of Directors
reasonably expects to do business during the Term of
the Covenants;
16. any PETsMART store that does business with the
Company during the Term of the Covenants;
17. any PETsMART Affiliate store that does business with
the Company during the Term of the Covenants;
18. any PETsMART store with which the Company previously
conducted business but no longer conducts business or
the Board of Directors reasonably expects to do
business during the Term of the Covenants;
19. any PETsMART Affiliate store with which the Company
previously conducted business but no longer conducts
business or the Board of Directors reasonably expects
to do business during the Term of the Covenants;
20. any Institutional Customer with which the Company
previously conducted business but no longer conducts
business or the Board of Directors reasonably expects
to do business during the Term of the Covenants;
21. any KMart store that does business with the Company
during the Term of the Covenants;
22. any KMart store that does business with the Company
during the Term of the Covenants;
23. any KMart store with which the Company previously
conducted business but no longer conducts business or
the Board of Directors reasonably expects to do
business during the Term of the Covenants;
24. any KMart Affiliate store with which the Company
previously conducted business but no longer conducts
business or the Board of Directors reasonably expects
to do business during the Term of the Covenants;
25. Cifra, S.A. de C.V.;
26. Aurrera, S.A. de C.V., a subsidiary of Cifra, S.A. de
C.V.;
27. any other subsidiary of Cifra, S.A. de C.V.;
-6-
<PAGE>
28. Olan Mills;
29. Expressly Portraits;
30. any employee or former employee of the Company, whose
employment with the Company terminated less than two
(2) years prior to Employee's association with such
employee or former employee, within a ten-mile radius
of any Wal-Mart store or any store in which the
Company has engaged in the Lines of Business within
six (6) months prior to Employee's engaging in the
Lines of Business; or
31. any person or entity in the geographic areas listed
in paragraph 10(c) hereinbelow.
(c) In performing the Covenants Not to Compete, Employee shall
not, without limitation, during the Term of the Covenants engage in the Lines of
Business in any of the following geographic areas:
1. The United States of America;
2. The State of Alabama;
3. The State of Arizona;
4. The State of Arkansas;
5. The State of California;
6. The State of Colorado;
7. The State of Connecticut;
8. The State of Delaware;
9. The District of Columbia;
10. The State of Florida;
11. The State of Georgia;
12. The State of Idaho
13. The State of Illinois;
14. The State of Indiana;
15. The State of Iowa;
16. The State of Kansas;
-7-
<PAGE>
17. The State of Kentucky;
18. The State of Louisiana;
19. The State of Maine;
20. The State of Maryland;
21. The State of Massachusetts;
22. The State of Michigan;
23. The State of Minnesota;
24. The State of Mississippi;
25. The State of Missouri;
26. The State of Montana
27. The State of Nebraska;
28. The State of Nevada
29. The State of New Hampshire;
30. The State of New Jersey;
31. The State of New Mexico
32. The State of New York;
33. The State of North Carolina;
34. The State of North Dakota;
35. The State of Ohio;
36. The State of Oklahoma;
37. The State of Oregon;
38. The State of Pennsylvania;
39. The Commonwealth of Puerto Rico;
40. The State of Rhode Island;
41. The State of South Carolina;
42. The State of South Dakota;
-8-
<PAGE>
43. The State of Tennessee;
44. The State of Texas;
45. The State of Utah
46. The State of Vermont;
47. The State of Virginia;
48. The State of Washington;
49. The State of West Virginia;
50. The State of Wisconsin;
51. The State of Wyoming;
52. Mexico;
53. Canada;
54. Puerto Rico;
55. South America;
56. Latin America;
57. Asia;
58. China; and
59. Counties in each State of the United States where the
Company has customers.
(d) As applied to the categories of persons, firms and
entities and geographic areas covered by the Covenants Not to Compete, the
provisions of paragraphs 9(b) and 9(c), respectively, shall be completely
severable and independent, and any invalidity or unenforceability thereof as
applied to any of such persons, firms or entities or geographic areas shall not
affect the validity or enforceability thereof as applied to any one or more of
the other persons, firms or entities or geographic areas.
(e) Throughout the Term of the Covenants, Employee shall not
directly or indirectly cause or attempt to cause any supplier or customer of the
Company, or any of its subsidiaries or affiliates, or any governmental body or
public agency, not to do business with the Company or such subsidiary or
affiliate or to transfer all or part of its business from the Company, or such
subsidiary or affiliate, or otherwise interfere or attempt to interfere with any
business relationship between the Company, or
-9-
<PAGE>
any of its subsidiaries or affiliates, and any of such suppliers, customers,
government bodies or public agencies.
(f) Employee acknowledges that irreparable injury will result
to the Company from any breach of the Covenants Not to Compete and there is no
adequate remedy at law to redress a breach or threatened breach of the Covenants
Not to Compete As a result of the foregoing, Employee agrees that the parties
seeking to enforce any of such provisions shall be entitled to an injunction or
other equitable relief against Employee to restrain him from such breach, and
Employee waives any claim or defense that the Company has an adequate remedy at
law for any such breach; provided, however, that nothing contained herein shall
prohibit the Company, or any subsidiary or affiliate of the Company, from
pursuing any other remedy it may have, including without limiting the generality
of the foregoing the recovery of damages.
(g) If any court determines that any provision of this Section
9, or any part thereof, is invalid or unenforceable, the remainder of this
Section 9 shall not thereby be affected and shall be given full effect, without
regard to the invalid portions. If any court determines that any provision of
this Section 9, or any part thereof, is unenforceable because of the duration or
geographic scope of such provision, the parties agree that such court shall have
the power to reduce the duration or scope of such provision, as the case may be,
and the parties agree to request the court to exercise such power, and, in its
reduced form, such provision shall then be enforceable and shall be enforced.
The provisions of this Section 9 shall survive the termination of this
Agreement, for whatever reason.
(h) At all times, both during and after the termination of his
employment, Employee shall keep and retain in confidence and shall not, without
the prior written consent of the Company, disclose to any persons, firm or
corporation or otherwise use for his own benefit or the benefit of another any
of the proprietary, confidential or secret information or trade secrets of the
Company. Further, Employee and the Company agree to keep confidential the terms
and conditions of this Agreement except for such disclosure as may be required
(i) in the event of a breach of this Agreement, (ii) compulsion by law or court
order, or (iii) as may be required by any applicable provision of law.
(i) In consideration of employment, and the compensation paid
to Employee as an employee of the Company, Employee hereby recognizes as the
exclusive property of, and assigns, transfers and conveys to, the Company
without further consideration each invention, discovery or improvement
(hereinafter collectively refer@ed to as "inventions") made, conceived,
developed or first reduced to practice by Employee (whether alone or jointly
with others) during the Term of Employment or within one (1) year thereafter
which relates in any way to Employee's work at the
-10-
<PAGE>
Company or any of its subsidiaries or affiliates. Employee will communicate to
the Company current written records of all such inventions, which records shall
be and remain the property of the Company. Upon request by the Company, Employee
will at any time execute documents assigning to the Company, or its designees,
any such invention or any patent application or patent granted therefor, and
will execute any papers relating thereto. Employee also will give all reasonable
assistance to the Company, or its designee, regarding any litigation or
controversy in connection with his inventions, patent applications, or patents,
all expenses incident thereto to be assumed by the Company.
(j) Notwithstanding anything herein to the contrary, any participation
in or engagement in the Lines of Business by Interactive Solutions, Inc., a
North Carolina corporation, or any successor thereto, or by Grant Holcomb, a
resident of North Carolina, shall be a breech of this Section 9 by Employee.
10. GOVERNING LAW. This Agreement shall be construed and governed under
the laws of the State of North Carolina.
11. BINDING NATURE. Except as expressly provided herein, this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective heirs, successors and assigns. The obligations and covenants of
Employee are personal in nature and, as such, are not assignable by him.
12. ENTIRE AGREEMENT; PRIOR ORAL AGREEMENT; AMENDMENT. This Agreement
contains the entire agreement of the parties with respect to the matters set
forth herein and supersedes all prior written and prior or contemporaneous oral
agreements or understandings of the parties hereto. This Agreement confirms and
sets forth the prior oral agreement of the parties as to the terms and
conditions of Employee's employment by the Company stated herein, including
without limitation, the obligations and covenants of Employee set forth in
Section 9 hereof, and Employee's agreement to enter into a written employment
agreement with the Company, as of the date his employment by the Company
commenced, stating such terms and conditions. This Agreement may be changed or
amended only by an agreement in writing signed by both parties hereto.
13. SEVERABILITY, INVALIDITY OR UNENFORCEABILITY. The severability,
invalidity or unenforceability of any paragraph or part of any paragraph herein
shall not in any way affect the validity or enforceability of any other
paragraph or any part of any other paragraph.
14. PRIOR AGREEMENTS AND COVENANTS OF EMPLOYEE. Employee hereby
warrants and represents that he is not a party to any agreement or binding
obligation, oral or written, that would prevent his employment by the Company,
and Employee's execution of this
-11-
<PAGE>
Agreement and his fulfillment of his duties and obligations hereunder do not and
will not violate the provisions of any agreement, contract, loan document or
other binding written or oral obligation.
15. NOTICES. Any notice, offer, acceptance or other document required
or permitted to be given pursuant to any provisions of this Agreement shall be
in writing, signed by or on behalf of the person giving the same, and (as
elected by the person giving such notice) delivered by hand or mailed to the
parties at the following addresses by registered or certified mail, postage
prepaid, return receipt requested, or by a third party company or governmental
entity providing delivery services in the ordinary course of business, which
guarantees delivery on a specified date:
If to Employee: J. Robert Wren, Jr.
3644 Brentwood Drive
Gastonia, NC 28056
If to the Company: PCA International, Inc.
815 Matthews-Mint Hill Road
Matthews, North Carolina 28105
Attention: John Grosso
With copies to: Thomas B. Henson
ROBINSON, BRADSHAW & HINSON, P.A.
One Independence Center
101 North Tryon Street, Suite 1900
Charlotte, North Carolina 28246-1900
(704) 377-2536
or to such other address as any party hereto may designate by complying with the
provisions of this Section 15.
Such notice shall be deemed given (i) as of the date of written
acknowledgment by Employee or an officer of the Company if delivered by hand,
(ii) seventy-two (72) hours after deposit in United States mail if sent by
registered or certified mail or (iii) on the delivery date guaranteed by the
third party delivery service if sent by such service.
Rejection or other refusal to accept or inability to deliver because of
changed address of which no notice has been received shall not affect the date
upon which the notice is deemed to have been given pursuant hereto.
Notwithstanding the foregoing, no notice of change of address shall be effective
until the date of receipt hereof.
-12-
<PAGE>
16. STOCK OPTION GRANT. Employee will be granted an option to purchase
150,000 shares of the Company's common stock on the date hereof, having an
exercise price equal to 100% of the closing price at which a share of Common
Stock trades on the date of the grant's Effective Date, all as defined in the
PCA International, Inc. 1996 Omnibus Long-Term Compensation Plan (the "Plan").
Such option shall be treated as a nonqualified stock option for federal income
tax purposes. Such option shall terminate on a date that is ten (10) years
following the date of grant. Such options shall become exercisable on the
earlier of (i) the termination of this Employment Agreement by Employee, (ii)
the termination by the Company without Cause of this Employment Agreement or
(iii) in three (3) equal annual increments on each of the first, second, and
third anniversaries of the date of grant. Upon the death of Employee during such
10-year period, the options granted hereunder shall be transferred to his estate
or as directed by his will.
IN WITNESS WHEREOF, J. Robert Wren, Jr. has set his hand and seal
hereto and PCA International, Inc. has caused this Agreement to be executed and
sealed in its name by its duly authorized officials as of the day and
year first above written.
EMPLOYEE:
/s/ J. Robert Wren, Jr.
---------------------------(SEAL)
J. ROBERT WREN, JR.
COMPANY:
PCA INTERNATIONAL, INC.
By: /s/ John Grosso
-----------------------
John Grosso
President and CEO
-13-
<PAGE>
EXHIBIT A
FRINGE BENEFITS
1. Employee shall be entitled to twenty (20) days paid vacation during
the first year of employment and twenty (20) days paid vacation each year of
employment thereafter. Vacation time is not cumulative.
2. Employee shall be entitled to sick leave in accordance with the
plans and procedures established by the Board of Directors.
3. Employee shall be entitled to such life insurance and disability
insurance or other disability benefits, if any, as are provided by the Company
to its employees from time to time.
4. Employee shall be entitled to receive benefits as are afforded to
other Executive Vice Presidents or similarly situated executives.
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT 11
PCA INTERNATIONAL, INC. AND SUBSIDIARIES
COMPUTATION OF PRIMARY AND FULLY DILUTED
EARNINGS PER COMMON SHARE
FOR THE FISCAL YEARS ENDED
------------------------------------------------------
FEBRUARY 2, JANUARY 28, JANUARY 29,
1997 1996 1995
---------------- --------------- ----------------
<S> <C> <C> <C>
PRIMARY EARNINGS PER COMMON SHARE:
EARNINGS APPLICABLE TO COMMON STOCK:
Income from continuing operations......................... $ 2,993,854 $ 7,617,169 $ 4,372,461
Discontinued operations................................... -- -- 412,406
---------------- --------------- ----------------
Net income................................................ $ 2,993,854 $ 7,617,169 $ 4,784,867
================ =============== ================
COMPUTATION OF COMMON SHARES AND COMMON
EQUIVALENT SHARES:
Weighted average number of common shares.................. 7,522,188 7,632,297 8,148,845
Dilutive effect of stock options.......................... 522,375 437,241 415,450
---------------- --------------- ----------------
Weighted average number of common shares after dilutive
effect............................................... 8,044,563 8,069,538 8,564,295
================ =============== ================
EARNINGS PER COMMON SHARE AND COMMON
EQUIVALENT SHARE:
Income from continuing operations......................... $ 0.37 $ 0.94 $ 0.51
Discontinued operations................................... -- -- 0.05
---------------- --------------- ----------------
Net income................................................ $ 0.37 $ 0.94 $ 0.56
================ =============== ================
FULLY DILUTED EARNINGS PER COMMON SHARE:
EARNINGS APPLICABLE TO COMMON STOCK:
Income from continuing operations......................... $ 2,993,854 $ 7,617,169 $ 4,372,461
Discontinued operations................................... -- -- 412,406
================ =============== ================
Net income................................................ $ 2,993,854 $ 7,617,169 $ 4,784,867
================ =============== ================
COMPUTATION OF COMMON SHARES AND COMMON
EQUIVALENT SHARES:
Weighted average number of common shares outstanding...... 7,522,188 7,632,297 8,148,845
Dilutive effect of stock options.......................... 631,941 478,156 433,422
---------------- --------------- ----------------
Weighted average number of common shares outstanding
as adjusted.......................................... 8,154,129 8,110,453 8,582,267
================ =============== ================
EARNINGS PER COMMON SHARE AND COMMON
EQUIVALENT SHARE ASSUMING FULL DILUTION:
Income from continuing operations......................... $ 0.37 $ 0.94 $ 0.51
Discontinued operations................................... -- -- 0.05
---------------- --------------- ----------------
Net income................................................ $ 0.37 $ 0.94 $ 0.56
================ =============== ================
<PAGE>
</TABLE>
EXHIBIT 21
PCA INTERNATIONAL, INC. AND SUBSIDIARIES
SUBSIDIARIES OF THE REGISTRANT
The following is a list of the Company's subsidiaries and affiliates at February
2, 1997 indicating the percentage of ownership and the state or country of
incorporation:
PERCENTAGE
OF VOTING
SECURITIES
STATE OR COUNTRY OWNED BY THE
OF
NAME INCORPORATION COMPANY
- - ----------------------------------------- ------------------ -----------------
Photo Corporation of America North Carolina 100%
PCA National, Inc. North Carolina *
PCA Specialty Photo Retail Corporation North Carolina **
PCA Photo Corporation of Canada, Inc. North Carolina 100%
PCA of Mexico SA DE CV Mexico 99%
PCA of Argentina S.A. Argentina 100%
ASI Acquisition Corp. North Carolina 100%
* PCA NATIONAL, INC., IS A SUBSIDIARY OF PHOTO CORPORATION OF AMERICA.
** PCA SPECIALTY PHOTO RETAIL CORPORATION IS A SUBSIDIARY OF PCA NATIONAL, INC.
<PAGE>
EXHIBIT 23
The Board of Directors
PCA International, Inc.:
We consent to incorporation by reference in the registration statement on Form
S-8 for the PCA International, Inc. 1990 Non-Qualified Stock Option Plan,
registration statement on Form S-8 for the PCA International, Inc. 1992
Non-Qualified Stock Option Plan and registration statement on Form S-8 for the
PCA International, Inc. 1996 Omnibus Long-Term Compensation Plan of our report
dated March 19, 1997, relating to the consolidated balance sheets of PCA
International, Inc. and subsidiaries as of February 2, 1997 and January 28, 1996
and the related consolidated statements of income, changes in shareholders'
equity and cash flows and related schedule for each of the years in the
three-year period ended February 2, 1997 which report appears in the February 2,
1997 annual report on Form 10-K of PCA International, Inc.
/s/KPMG Peat Marwick LLP
KPMG PEAT MARWICK LLP
Charlotte, North Carolina
April 29, 1997
<PAGE>
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> FEB-2-1997
<PERIOD-START> JAN-28-1996
<PERIOD-END> FEB-2-1997
<CASH> 1,536,234
<SECURITIES> 0
<RECEIVABLES> 8,172,645
<ALLOWANCES> 867,961
<INVENTORY> 9,814,682
<CURRENT-ASSETS> 28,191,972
<PP&E> 129,612,934
<DEPRECIATION> 71,348,374
<TOTAL-ASSETS> 147,007,118
<CURRENT-LIABILITIES> 108,316,847
<BONDS> 0
0
0
<COMMON> 1,521,426
<OTHER-SE> 33,640,740
<TOTAL-LIABILITY-AND-EQUITY> 147,077,118
<SALES> 156,099,050
<TOTAL-REVENUES> 156,099,050
<CGS> 119,106,451
<TOTAL-COSTS> 119,106,451
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 179,221
<INCOME-PRETAX> 5,136,907
<INCOME-TAX> 2,143,053
<INCOME-CONTINUING> 2,993,854
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 2,993,854
<EPS-PRIMARY> 0.37
<EPS-DILUTED> 0.37
</TABLE>
