SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
(Mark One)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934 [FEE REQUIRED]
For the fiscal year ended September 26, 1998
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934 [NO FEE REQUIRED]
For the transition period from to
Commission File No. 0-14616
J & J SNACK FOODS CORP.
(Exact name of registrant as specified in its charter)
New Jersey 22-1935537
(State or other jurisdication (I.R.S. Employer
of incorporation or organization) Identification No.)
6000 Central Highway
Pennsauken, New Jersey 08109
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (609-
665-9533)
__________
Securities registered pursuant to Section 12(b) of the Act:
Common Stock, par value: None None
(Title of each class) (Name of each exchange
on which registered)
__________
Securities registered pursuant to Section 12(g) of the Act: None
__________
Indicate by check mark whether the Registrant (1) has filed
all reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months
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 the 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 [ ].
As of November 30, 1998, the latest practicable date,
9,036,833 shares of the Registrant's common stock were issued and
outstanding. The aggregate market value of shares held by non-
affiliates of the Registrant on such date was $121,823,319, based
on the last price on that date of $20.4375 per share, which is an
average of bid and asked prices.
DOCUMENTS INCORPORATED BY REFERENCE
The Registrant's 1998 Annual Report to Shareholders for the
fiscal year ended September 26, 1998 and Proxy Statement for its
Annual Meeting of Shareholders to be held on February 11, 1999
are incorporated herein by reference into Parts I, II, III and IV
as set forth herein.
J & J SNACK FOODS CORP.
1998 FORM 10-K ANNUAL REPORT
TABLE OF CONTENTS
PART I
Page
Item 1 Business ................................... 1
Item 2 Properties ................................. 8
Item 3 Legal Proceedings .......................... 9
Item 4 Submission Of Matters To A Vote Of
Security Holders ........................... 9
Executive Officers Of The Registrant ....... 10
PART II
Item 5 Market For Registrant's Common
Stock And Related Stockholder
Matters .................................... 11
Item 6 Selected Financial Data .................... 11
Item 7 Management's Discussion And Analysis
Of Financial Condition And Results
Of Operations .............................. 11
Item 7a Quantitative And Qualitative Disclosures
About Market Risk .......................... 11
Item 8 Financial Statements And Supplementary
Data ....................................... 12
Item 9 Changes In And Disagreements With
Accountants On Accounting And
Financial Disclosure........................ 13
PART III
Item 10 Directors And Executive Officers Of
The Registrant ............................. 14
Item 11 Executive Compensation ..................... 14
Item 12 Security Ownership Of Certain Bene-
ficial Owners And Management ............... 14
Item 13 Certain Relationships And Related
Transactions ............................... 14
PART IV
Item 14 Exhibits, Financial Statement
Schedules And Reports On Form 8-K .......... 15
PART I
Item 1. Business
General
J & J Snack Foods Corp. (the "Company" or "J & J")
manufactures nutritional snack foods which it markets nationally
to the food service and retail supermarket industries. Its
principal snack food products are soft pretzels marketed
principally under the brand name SUPERPRETZEL. J & J believes it
is the largest manufacturer of soft pretzels in the United
States. The Company also markets frozen carbonated beverages to
the food service industry under the brand names ICEE and ARCTIC
BLAST in the United States, Mexico and Canada. Other snack
products include Italian ice and frozen juice treats and
desserts, churros (a Hispanic pastry), funnel cake, popcorn and
bakery products.
The Company's sales are made primarily to food service
customers including snack bar and food stand locations in leading
chain, department, discount, warehouse club and convenience
stores; malls and shopping centers; fast food outlets; stadiums
and sports arenas; leisure and theme parks; movie theatres;
independent retailers; and schools, colleges and other
institutions. The Company's retail supermarket customers are
primarily supermarket chains. The Company sells direct to the
public through its chains of specialty snack food retail outlets,
BAVARIAN PRETZEL BAKERY and PRETZEL GOURMET, located primarily in
the Mid-Atlantic States.
The Company was incorporated in 1971 under the laws of the
State of New Jersey.
Products
Soft Pretzels
The Company's soft pretzels are sold under many brand names;
some of which are: SUPERPRETZEL, MR. TWISTER, SOFT PRETZEL BITES,
SOFTSTIX, SOFT PRETZEL BUNS, HOT KNOTS, DUTCH TWIST, TEXAS TWIST
and SANDWICH TWIST and; to a lesser extent, under private labels.
The Company sells its soft pretzels to the food service and the
retail supermarket industries and direct to the public through
BAVARIAN PRETZEL BAKERY and PRETZEL GOURMET, its chains of
specialty snack food retail outlets. The Company's soft pretzels
qualify under USDA regulations as the nutritional equivalent of
bread for purposes of the USDA school lunch program, thereby
enabling a participating school to obtain partial reimbursement
of the cost of the Company's soft pretzels from the USDA. Soft
pretzel sales amounted to 35% and 40% of the Company's revenue in
fiscals 1998 and 1997, respectively.
The Company's soft pretzels are manufactured according to a
proprietary formula. Soft pretzels, approximately 2-1/2 ounces
in weight, and jumbo or king size soft pretzels, approximately
5-1/2 ounces in weight, are shaped and formed by the Company's
proprietary twister machines. These soft pretzel tying machines
are automated, high speed machines for twisting dough into the
traditional pretzel shape. Soft pretzel nuggets, mini one ounce
soft pretzels and soft pretzels in customized shapes and sizes
and with fillings are extruded or shaped by hand. Soft pretzels,
1
after processing, are primarily quick-frozen in either raw or
baked form and packaged for delivery.
The Company's food service marketing program includes
supplying ovens, mobil merchandisers, display cases, warmers and
similar merchandising equipment to the retailer to prepare and
promote the sale of soft pretzels. Some of this equipment is
proprietary, including combination warmer and display cases that
reconstitute frozen soft pretzels while displaying them, thus
eliminating the need for an oven. The Company retains ownership
of the equipment placed in customer locations and, as a result,
customers are not required to make an investment in equipment.
Frozen Carbonated Beverages
The Company markets, through its direct sales force, frozen
carbonated beverages to the food service industry under the names
ICEE and ARCTIC BLAST in the United States, Mexico and Canada.
The Company sells direct to the public through BAVARIAN PRETZEL
BAKERY and PRETZEL GOURMET, its chains of specialty snack food
retail outlets. Frozen carbonated beverage sales amounted to 29%
of revenue in fiscal 1998 and 20% of revenue in fiscal 1997.
Under the Company's marketing program, it installs frozen
carbonated beverage dispensers at customer locations and
thereafter services the machines, arranges to supply customers
with ingredients required for production of the frozen carbonated
beverages, and supports customer retail sales efforts with
in-store promotions and point-of-sale materials. In most cases,
the Company retains ownership of its dispensers and, as a result,
customers are not required to make an investment in equipment or
arrange for the ingredients and supplies necessary to produce and
market the frozen carbonated beverages.
Each new customer location requires a frozen carbonated
beverage dispenser supplied by the Company or by the customer.
Company supplied dispensers are purchased from outside vendors,
built new or rebuilt by the Company at an approximate cost of
$5,500 each. The following shows the number of Company owned and
customer owned frozen carbonated beverage dispensers at customer
locations at the dates indicated:
Company Owned Customer Owned Total
September 28, 1996 7,823 901 8,724
September 27, 1997 8,546 711 9,257
September 26, 1998 16,520 223 16,743
As a result of the acquisition of National Icee Corporation
on December 8, 1997, the Company has the rights to market and
distribute frozen carbonated beverages under the name ICEE to all
of the Continental United States, except for portions of eleven
states.
Frozen Juice Treats and Desserts
The Company's frozen juice treats and desserts are marketed
under the FROSTAR, SHAPE-UPS, MAZZONE'S, MAMA TISH'S and LUIGI'S
brand names to the food service and to the retail supermarket
2
industries. Frozen juice treat and dessert sales were 15% and
19% of the Company's revenue in fiscal years 1998 and 1997,
respectively.
The Company's SHAPE-UPS and MAZZONE frozen juice bars are
manufactured from an apple or pear juice base to which water,
sweeteners, coloring (in some cases) and flavorings are added.
The juice bars contain two to three ounces of apple or pear juice
and the minimum daily requirement of vitamin C, and qualify as
reimbursable items under the USDA school lunch program. The
juice bars are produced in various flavors and are packaged in a
sealed push-up paper container referred to as the Milliken M-pak,
which the Company believes has certain sanitary and safety
advantages.
The FROSTAR product line includes frozen juice and other
frozen desserts on a stick and in a cup. The juice bar and
FROSTAR products are sold primarily to the school portion of the
food service industry.
LUIGI'S Real Italian Ice and MAMA TISH'S Italian Ice and
Sorbets are sold to the foodservice and to the retail supermarket
industries. They are manufactured from water, sweeteners and
fruit juice concentrates in various flavors and are packaged in
plastic cups for retail supermarket and foodservice and in four
and eight ounce squeeze up tubes for foodservice.
Churros
The Company sells frozen churros under the TIO PEPE'S brand
name to both the food service and retail supermarket industries,
primarily in the Western and Southwestern United States. Churro
sales were 4% and 5% of the Company's sales in fiscal 1998 and
1997, respectively. Churros are Hispanic donuts in stick form
which the Company produces in several sizes according to a
proprietary formula. The churros are deep fried, frozen and
packaged. At food service point-of-sale they are reheated and
topped with a cinnamon sugar mixture. The Company also sells
fruit and creme filled churros. The Company supplies churro
merchandising equipment similar to that used for its soft
pretzels.
Baked Goods
The Company has a contract and private label bakery business
which manufactures cookies, muffins and other baked goods for
third parties. In addition, the Company produces and markets
these products under its own brand names, including DANISH MILL
and PRETZELCOOKIE. Baked goods sales amounted to 9% and 8% of
the Company's sales in fiscals 1998 and 1997, respectively.
Other Products
The Company also markets to the food service industry and
direct to the public other products including soft drinks, funnel
cakes sold under the FUNNEL CAKE FACTORY brand name, popcorn sold
under the AIRPOPT brand name, as well as smaller amounts of
various other food products. In addition, J & J manufactures and
markets machines and machine parts for sale primarily to other
food and beverage companies.
3
Customers
The Company sells its products to two principal customer
groups: food service and retail supermarkets. The primary
products sold to the food service group are soft pretzels, frozen
carbonated beverages, frozen juice treats and desserts, churros
and baked goods. The primary products sold to the retail
supermarket industry are soft pretzels and Italian ice.
Additionally, the Company sells soft pretzels, frozen carbonated
beverages and various other food products direct to the public
through BAVARIAN PRETZEL BAKERY and PRETZEL GOURMET, its chains
of specialty snack food retail outlets.
The Company's customers in the food service industry include
snack bars and food stands in chain, department and discount
stores such as KMart, Walmart, Bradlees, Caldor and Target; malls
and shopping centers; fast food outlets; stadiums and sports
arenas; leisure and theme parks such as Disneyland, Walt Disney
World, Opryland, Universal Studios, Sea World, Six Flags, Hershey
Park and Busch Gardens; convenience stores such as 7-Eleven,
Circle K, AM/PM, White Hen Pantry and Wawa; movie theatres;
warehouse club stores such as Sam's Club, Price Costco and
B.J.'s; schools, colleges and other institutions; and independent
retailers such as Hot Sam. Food service concessionaires
purchasing soft pretzels and other products from the Company for
use in sports arenas and for institutional meal services include
ARAMARK, Ogden, Service America, Sportservice, Marriott and
Volume Services. Machines and machine parts are sold to other
food and beverage companies. Within the food service industry,
the Company's products are purchased by the consumer primarily
for consumption at the point-of-sale.
The Company sells its products to over 90% of supermarkets
in the United States. Products sold to retail supermarket
customers are primarily soft pretzel products, including
SUPERPRETZEL, LUIGI'S Real Italian Ice and MAMA TISH'S Italian
Ice and sorbets and various secondary brands. Within the retail
supermarket industry, the Company's frozen and prepackaged
products are purchased by the consumer for consumption at home.
Marketing and Distribution
The Company has developed a national marketing program for
its products. For food service customers, this marketing program
includes providing ovens, mobile merchandisers, display cases,
warmers, frozen carbonated beverage dispensers and other
merchandising equipment for the individual customer's
requirements and point-of-sale materials as well as participating
in trade shows and in-store demonstrations. The Company's
ongoing advertising and promotional campaigns for its retail
supermarket products include trade shows, newspaper
advertisements with coupons, in-store demonstrations, billboards
and, periodically, television advertise- ments.
The Company's products are sold through a network of about
180 food brokers and over 1,000 independent sales distributors
and the Company's own direct sales force. The Company maintains
frozen warehouse and distribution facilities in Pennsauken, New
Jersey; Vernon (Los Angeles) California; Scranton, Pittsburgh,
4
Hatfield and Lancaster, Pennsylvania; and Solon, Ohio. Frozen
carbonated beverages are distributed from 97 warehouse and
distribution facilities located in 41 states, Mexico and Canada
which allow the Company to directly service its customers in the
surrounding areas. The Company's products are shipped in
refrigerated and other vehicles from the Company's manufacturing
and warehouse facilities on a fleet of Company operated
tractor-trailers, trucks and vans, as well as by independent
carriers.
Seasonality
The Company's sales are seasonal because frozen carbonated
beverage sales and Italian ice sales are generally higher during
the warmer months and sales of the Company's retail stores are
generally higher in the Company's first quarter during the
holiday shopping season.
Trademarks and Patents
The Company has numerous trademarks, the most important of
which are SUPERPRETZEL, DUTCH TWIST, TEXAS TWIST, MR. TWISTER,
SOFT PRETZEL BITES and SOFTSTIX for its soft pretzel products;
FROSTAR, SHAPE-UPS, MAZZONE'S, MAMA TISH'S and LUIGI'S for its
frozen juice treats and desserts; TIO PEPE'S for its churros;
ARCTIC BLAST for its frozen carbonated beverages; FUNNEL CAKE
FACTORY for its funnel cake products, PRIDE O' THE FARM for its
cookies, muffins and other baked goods; and TANGO WHIP for its
whipped fruit drinks. The trademarks, when renewed and
continuously used, have an indefinite term and are considered
important to the Company as a means of identifying its products.
The Company markets frozen carbonated beverages under the
trademark ICEE in all of the Continental United States, except
for portions of eleven states, and in Mexico and Canada.
Additionally, the Company has the international rights to the
trademark ICEE.
The Company has four patents related to frozen carbonated
beverage dispensers, including a countertop unit. One expires in
2005 and three expire in 2006. The Company also has two process
patents for dessert products which expire in 2010 and 2012.
Supplies
The Company's manufactured products are produced from raw
materials which are readily available from numerous sources.
With the exception of the Company's soft pretzel twisting
equipment and funnel cake production equipment, which are made
for J & J by independent third parties, and certain specialized
packaging equipment, the Company's manufacturing equipment is
readily available from various sources. Syrup for frozen
carbonated beverages is purchased from the Coca Cola Company, the
Pepsi Cola Company, and Western Syrup Company. Cups, straws and
lids are readily available from various suppliers. Parts for
frozen carbonated beverage dispensing machines are manufactured
internally and purchased from other sources. Frozen carbonated
beverage dispensers are purchased from IMI Cornelius, Inc.
5
Competition
Snack food and baked goods markets are highly competitive.
The Company's principal products compete against similar and
different food products manufactured and sold by numerous other
companies, some of which are substantially larger and have
greater resources than the Company. As the soft pretzel, frozen
juice treat and dessert, baked goods and related markets grow,
additional competitors and new competing products may enter the
markets. Competitive factors in these markets include product
quality, customer service, taste, price, identity and brand name
awareness, method of distribution and sales promotions.
The Company believes it is the only national distributor of
soft pretzels. However, there are numerous regional and local
manufacturers of food service and retail supermarket soft
pretzels. Competition is also increasing in that there are
several chains of retail pretzel stores which have been
aggressively expanding over the past several years. These chains
compete with the Company's products.
In Frozen Carbonated Beverages the Company competes directly
with other frozen carbonated beverage companies. These include
several companies which have the right to use the ICEE name in
portions of eleven states. There are many other regional frozen
carbonated beverage competitors throughout the country and one
large retail chain which uses its own frozen carbonated beverage
brand.
The Company competes with large soft drink manufacturers for
counter and floor space for its frozen carbonated beverage
dispensing machines at retail locations and with products which
are more widely known than the ICEE and ARCTIC BLAST frozen
carbonated beverages.
The Company competes with a number of other companies in the
frozen juice treat and dessert and baked goods markets.
Divestitures
During the third quarter of fiscal year 1995, the Company
sold its syrup and flavor manufacturing subsidiary, Western Syrup
Company, to an unrelated third party for cash and notes. The
sale of Western did not have a material impact on the Company's
operations or financial position.
Employees
The Company had approximately 1,900 full and part time
employees as of September 26, 1998. Certain production and
distribution employees at the Pennsauken plant are covered by a
collective bargaining agreement which expires in September 1999.
The Company considers its employee relations to be good.
Year 2000
The Year 2000 ("Y2K") issue is the result of computer
programs using a two-digit format, as opposed to four digits, to
indicate the year. Such computer systems will be unable to
6
interpret dates beyond the year 1999, which could cause a system
failure or other computer errors, leading to disruptions in
operations.
In 1997 the Company commenced a program to evaluate and
determine the potential impact of Y2K issues on its operations
and the need to modify or replace its existing computer systems.
The scope of the program encompassed all phases of the
operational activities of the Company and its subsidiaries. In
1998 the program was expanded to develop an action plan for the
resolution of problem issues. The process of resolving problem
issues is anticipated to be completed by the third calendar
quarter of 1999. The Company has identified the following areas
to be critical for Y2K compliance: financial and informational
systems, manufacturing applications, third-party relationships,
and what was deemed to include environmental areas of concern to
include HVAC, telephone and communication environments, and
security systems.
The Company is currently monitoring all of its software
vendors to determine the compliance status of purchased
applications. This is an ongoing process that is scheduled for
completion by the second calendar quarter of 1999. The Company
currently has been implementing enhanced financial and
informational application systems. The software product is Y2K
compliant and will satisfy the majority of the informational
processing requirements when fully implemented. This process is
in the final stages of implementation and it is anticipated to be
fully completed early in 1999. Additionally, the Company is
negotiating to purchase a new, and fully Y2K compliant, financial
reporting system to enhance our future ability to manage, control
and report on the operation of the business. It is anticipated
that this system will be in place by mid 1999. In the
manufacturing area, the Company is in the process of identifying
areas of exposure. The third party relationship area has been
addressed by directly contacting major trading partners. Most of
the parties who have so far responded to our inquiries indicate
that they will be Y2K compliant no later than the end of 1999.
The Company has been utilizing outside consultants to
augment the efforts of its internal staff to address the Y2K
problem. It is anticipated that there will be an ongoing need to
utilize these services through the first half of 1999. Specific
areas of activity include the Y2K monitoring process and
additional application programming effort. The balance of 1998
and the first half of 1999 will be devoted to the completion and
testing of the software applications and testing of the
environmental areas.
The Company does not anticipate that Y2K compliance costs
will be significantly higher than its normal management
information systems operating costs.
7
Item 2. Properties
The Company's primary east coast manufacturing facility is
located in Pennsauken, New Jersey in a 70,000 square foot
building on a two acre lot. Soft pretzels and churros are
manufactured at this company-owned facility which also serves as
the Company's corporate headquarters. This facility operates at
approximately 80% of capacity. The Company leases a 101,200
square foot building adjacent to its manufacturing facility in
Pennsauken, New Jersey through March 2012. The Company has
constructed a large freezer within this facility for warehousing
and distribution purposes. The warehouse has a utilization rate
of 60-90% depending on product demand. The Company also leases
through September 1999 16,000 square feet of office and warehouse
space located next to the Pennsauken, New Jersey plant.
The Company owns a 150,000 square foot building on eight
acres in Bellmawr, New Jersey. Approximately 30% of the facility
is leased to a third party. The remainder is used by the Company
to manufacture some of its products including funnel cake and
pretzels.
The Company's primary west coast manufacturing facility is
located in Vernon (Los Angeles), California. It consists of a
137,000 square foot facility in which soft pretzels, churros and
various lines of baked goods are produced and warehoused.
Included in the 137,000 square foot facility is a 30,000 square
foot freezer used for warehousing and distribution purposes which
was constructed in 1996. The facility is leased through November
2010. The Company leases an additional 15,000 square feet of
warehouse space, adjacent to its manufacturing facility, through
May 2002. The manufacturing facility operates at approximately
60% of capacity.
The Company owns a 52,700 square foot building located on
five acres in Chicago Heights, Illinois which is leased to a
third party.
The Company owns a 46,000 square foot frozen juice treat and
dessert manufacturing facility located on three acres in
Scranton, Pennsylvania. The facility, which was expanded from
26,000 square feet in 1998, operates at less than 50% of
capacity.
The Company leases a 29,635 square foot soft pretzel
manufacturing facility located in Hatfield, Pennsylvania. The
lease runs through June 2017. The facility operates at
approximately two thirds of capacity.
The Company leases a 19,200 square foot soft pretzel
manufacturing facility located in Carrollton, Texas. The lease
runs through April 2004. The facility operates at less than 50%
of capacity.
The Company's Bavarian Pretzel Bakery headquarters and
warehouse and distribution facilities are located in a 11,000
square foot owned building in Lancaster, Pennsylvania.
The Company owns a 25,000 square foot facility located on 11
acres in Hatfield, Pennsylvania which is leased to a third party.
8
The Company also leases 99 warehouse and distribution
facilities.
Item 3. Legal Proceedings
The Company has no material pending legal proceedings, other
than ordinary routine litigation incidental to the business, to
which the Company or any of its subsidiaries is a party or of
which any of their property is subject.
Item 4. Submission Of Matters To A Vote Of Security Holders
None.
9
EXECUTIVE OFFICERS OF THE REGISTRANT
The following is a list of the executive officers of the
Company and their principal past occupations or employment. All
such persons serve at the pleasure of the Board of Directors and
have been elected to serve until the Annual Meeting of
Shareholders on February 11, 1999 or until their successors are
duly elected.
Name Age Position
Gerald B. Shreiber 57 Chairman of the Board, President,
Chief Executive Officer and
Director
Dennis G. Moore 43 Senior Vice President, Chief
Financial Officer, Secretary,
Treasurer and Director
Robert M. Radano 49 Senior Vice President, Sales,
Chief Operating Officer and
Director
Robyn Shreiber Cook 38 Senior Vice President
Dan Fachner 38 President of The ICEE Company
Subsidiary
Gerald B. Shreiber is the founder of the Company and has
served as its Chairman of the Board, President, and Chief
Executive Officer since its inception in 1971. His term as a
director expires in 2000.
Dennis G. Moore joined the Company in 1984. He served in
various controllership functions prior to becoming the Chief
Financial Officer in June 1992. His term as a director expires
in 2002.
Robert M. Radano joined the Company in 1972 and in May 1996
was named Chief Operating Officer of the Company. Prior to
becoming Chief Operating Officer, he was Senior Vice President,
Sales responsible for national foodservice sales of J & J. His
term as a director expires in 2001.
Robyn Shreiber Cook joined the Company in 1982 and in
February 1996 was named Senior Vice President, West with
operating and sales responsibilities for the Company's West Coast
foodservice and bakery business. Prior to becoming Senior Vice
President, West she was responsible for Western region food
service sales.
Dan Fachner has been an employee of ICEE-USA Corp., which
was acquired by the Company in May 1987, since 1979. He was named
Senior Vice President of The ICEE Company in April 1994 and
became President in May 1997.
10
PART II
Item 5. Market For Registrant's Common Stock And
Related Stockholder Matters
The Company's common stock is traded on the over-the-counter
market on the NASDAQ National Market System under the symbol
JJSF. The following table sets forth the high and low final sale
price quotations as reported by NASDAQ for the common stock for
each quarter of the years ended September 27, 1997 and September
26, 1998.
High Low
Fiscal 1997
First quarter ended December 28, 1996 14-1/8 10-5/8
Second quarter ended March 29, 1997 14-1/8 10-1/2
Third quarter ended June 28, 1997 16-1/8 11-1/4
Fourth quarter ended September 27, 1997 17-1/4 14-1/2
Fiscal 1998
First quarter ended December 30, 1997 17-3/8 13-1/2
Second quarter ended March 28, 1998 19-1/2 12-1/2
Third quarter ended June 27, 1998 20-3/4 17-7/8
Fourth quarter ended September 26, 1998 22-1/4 14-3/4
On November 30, 1998, there were 9,036,833 shares of common
stock outstanding. Those shares were held by approximately 2,200
beneficial shareholders and shareholders of record.
The Company has never paid a cash dividend on its common
stock and does not anticipate paying cash dividends in the
foreseeable future.
Item 6. Selected Financial Data
The information set forth under the caption "Financial
Highlights" of the 1998 Annual Report to Shareholders is
incorporated herein by reference.
Item 7. Management's Discussion And Analysis Of
Financial Condition And Results Of Operations
The information set forth under the caption "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" of the 1998 Annual Report to Shareholders is
incorporated herein by reference.
Item 7a. Quantitative And Qualitative Disclosures
About Market Risk
The following is the Company's quantitative and qualitative
analysis of its financial market risk:
Interest Rate Sensitivity
The table below provides information about the Company's
derivative financial instruments and other financial instruments
as of September 26, 1998 that are sensitive to changes in
11
interest rates. These instruments include debt obligations and
interest rate swaps. For debt obligations, the table presents
principal cash flows and related weighted-average interest rates
by expected maturity dates. For interest rate swaps, the table
presents notional amounts and weighted-average interest rates by
expected (contractual) maturity dates. The notional amounts are
used to calculate the contractual payments to be exchanged under
the swap contract. Weighted-average variable rates are based on
implied forward rates in the yield curve at the reporting date.
Expected Maturity Date
($ in thousands)
There- Fair
1999 2000 2001 2002 2003 after Total Value
Liabilities
Long-term debt
Fixed rate $ 423 $ 382 $ 317 $ 131 $ 369 $5,000 $ 6,622 $ 6,622
Average
interest
rate 8.34% 8.54% 8.48% 8.50% 9.27% 7.25% 7.59%
Variable rate $8,000 $8,000 $24,000 $8,000 $2,000 - $50,000 $50,000
Average
interest
rate 5.89% 5.89% 5.78% 5.89% 5.89% - 5.84%
Interest Rate Swaps
Receive
variable/
pay fixed $8,000 $8,000 $ 8,000 $8,000 $2,000 $ - $34,000 $ 1,400
Average
pay rate 6.11% 6.11% 6.11% 6.11% 6.11% - 6.11%
Average
receive
rate 5.39% 5.39% 5.39% 5.39% 5.39% - 5.39%
Interest Rate Risk
The Company holds long-term debt with variable interest
rates indexed to LIBOR, which exposes it to the risk of
increased interest costs if interest rates rise. To reduce the
risk related to unfavorable interest rate movements, the Company
enters into interest rate swap contracts to pay a fixed rate and
receive a variable rate that is indexed to LIBOR. The ratio of
the swap notional amount to the principal amount of variable rate
debt issued changes periodically based on the Company's ongoing
assessment of the future trend in interest rate movements. At
September 26, 1998, this ratio was 68 percent and no change in
the ratio is expected at the current time. The percentage of
variable rate debt fixed under interest rate swap contracts is
expected to decrease as scheduled debt payments are made.
Foreign Exchange Rate Risk
The Company has not entered into any forward exchange
contracts to hedge its foreign currency rate risk as of September
26, 1998 because it does not believe its foreign exchange
exposure is significant.
Item 8. Financial Statements And Supplementary Data
The following consolidated financial statements of the
Company set forth in the 1998 Annual Report to Shareholders are
incorporated herein by reference:
Consolidated Balance Sheets as of September 26, 1998 and
September 27, 1997
Consolidated Statements of Earnings for the fiscal years
ended September 26, 1998, September 27, 1997 and
September 28, 1996
Consolidated Statement of Stockholders' Equity for the
12
three fiscal years ended September 26, 1998
Consolidated Statements of Cash Flows for the fiscal years
ended September 26, 1998, September 27, 1997 and
September 28, 1996
Notes to Consolidated Financial Statements
Report of Independent Certified Public Accountants
Item 9. Changes In And Disagreements With Accountants On
Accounting And Financial Disclosure
None.
13
PART III
Item 10. Directors And Executive Officers Of The Registrant
Information concerning directors, appearing under the
captions "Information Concerning Nominee For Election To Board"
and "Information Concerning Continuing Directors And Executive
Officers" in the Company's Proxy Statement filed with the
Securities and Exchange Commission in connection with the Annual
Meeting of Shareholders to be held on February 11, 1999, is
incorporated herein by reference. Information concerning the
executive officers is included on page 10 following Item 4 in
Part I hereof.
Item 11. Executive Compensation
Information concerning executive compensation appearing in
the Company's Proxy Statement under the caption "Management
Remuneration" is incorporated herein by reference.
Item 12. Security Ownership Of Certain Beneficial Owners And
Management
Information concerning the security ownership of certain
beneficial owners and management appearing in the Company's Proxy
Statement under the caption "Principal Shareholders" is
incorporated herein by reference.
Item 13. Certain Relationships And Related Transactions
Not applicable.
14
PART IV
Item 14. Exhibits, Financial Statement Schedules And
Reports On Form 8-K
(a)Financial Statements
The following are incorporated by reference in Part II
of this report:
Report of Independent Certified Public Accountants
Consolidated Balance Sheets as of September 26, 1998 and
September 27, 1997
Consolidated Statements of Earnings for the fiscal years
ended September 26, 1998, September 27, 1997 and
September 28, 1996
Consolidated Statement of Stockholders' Equity for the
three fiscal years ended September 26, 1998
Consolidated Statements of Cash Flows for the fiscal
years ended September 26, 1998, September 27, 1997
and September 28, 1996
Notes to Consolidated Financial Statements
Financial Statement Schedule
The following are included in Part IV of this report:
Page
Report of Independent Certified Public Account-
ants on Schedule 18
Schedule:
II. Valuation and Qualifying Accounts 19
All other schedules are omitted either because they are not
applicable or because the information required is contained in
the financial statements or notes thereto.
Exhibits
3.1 Amended and Restated Certificate of Incorporation
filed February 28, 1990. (Incorporated by reference
from the Company's Form 10-Q dated May 4, 1990.)
3.2 Amended and Restated Bylaws adopted May 15, 1990.
(Incorporated by reference from the Company's Form
10-Q dated August 3, 1990.)
4.1 New Jersey Economic Development Authority Economic
Development Revenue Bonds Trust Indenture dated as
of December 1, 1991. (Incorporated by reference
from the Company's 10-K dated December 18, 1992.)
4.2 Credit Agreement dated as of December 5, 1997 by and
among J & J Snack Foods Corp. and Certain of its
Subsidiaries, as borrowers, Mellon Bank, N.A. and
Corestates Bank, N.A., as lenders, and Mellon Bank,
N.A. as Administrative Agent (Page 20).
10.1 Proprietary Exclusive Manufacturing Agreement dated
15
July 17, 1984 between J & J Snack Foods Corp. and
Wisco Industries, Inc. (Incorporated by reference
from the Company's Form S-1 dated February 4, 1986,
file no. 33-2296.)
10.2* J & J Snack Foods Corp. Stock Option Plan.
(Incorporated by reference from the Company's Form
S-8 dated July 24, 1992, file no. 33-50036.)
10.3* J & J Snack Foods Corp. 401(K) Profit Sharing Plan,
As Amended, Effective January 1, 1989. Incorporated
by reference from the Company's 10-K dated December
18, 1992.)
10.4* First, Second and Third Amendments to the J & J
Snack Foods Corp. 401(k) Profit Sharing Plan.
(Incorporated by reference from the Company's 10-K
dated December 19, 1996).
10.6 Lease dated September 24, 1991 between J & J Snack
Foods Corp. of New Jersey and A & H Bloom
Construction Co. for the 101,200 square foot
building next to the Company's manufacturing
facility in Pennsauken, New Jersey. (Incorporated
by reference from the Company's Form 10-K dated
December 17, 1991).
10.7 Lease dated August 29, 1995 between J & J Snack
Foods Corp. and 5353 Downey Associates Ltd for the
lease of the Vernon, CA facility. (Incorporated by
reference from the Company's Form 10-K dated
December 21, 1995).
10.8* J & J Snack Foods Corp. Employee Stock Purchase Plan
(Incorporated by reference from the Company's Form
S-8 dated May 16, 1996).
13.1 Company's 1998 Annual Report to Shareholders
(except for the captions and information thereof
expressly incorporated by reference in this Form
10-K, the Annual Report to Shareholders is provided
solely for the information of the Securities and
Exchange Commission and is not deemed "filed" as
part of the Form 10-K.) (Page 115.)
22.1 Subsidiaries of J & J Snack Foods Corp. (Page 148.)
24.1 Consent of Independent Certified Public Accountants.
(Page 149.)
*Compensatory Plan
(b)Reports on Form 8-K
No reports on Form 8-K have been filed by the Company during
the last quarter of the period covered by this report.
16
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.
J & J SNACK FOODS CORP.
December 21, 1998 By /s/ Gerald B. Shreiber
Gerald B. Shreiber,
Chairman of the Board,
President, Chief Executive
Officer and Director
Pursuant to the requirements of the Securities Exchange Act
of 1934, this report has been signed below by the following
persons on behalf of the Registrant and in the capacities and on
the dates indicated.
December 21, 1998 /s/ Robert M. Radano
Robert M. Radano, Senior Vice
President, Sales, Chief Operating
Officer and Director
December 21, 1998 /s/ Dennis G. Moore
Dennis G. Moore, Senior Vice
President, Chief Financial
Officer and Director
December 21, 1998 /s/ Stephen N. Frankel
Stephen N. Frankel, Director
December 21, 1998 /s/ Peter G. Stanley
Peter G. Stanley, Director
December 21, 1998 /s/ Leonard M. Lodish
Leonard M. Lodish, Director
17
REPORT OF INDEPENDENT CERTIFIED PUBLIC
ACCOUNTANTS ON SCHEDULE
Board of Directors
J & J Snack Foods Corp.
In connection with our audit of the consolidated financial
statements of J & J Snack Foods Corp. and Subsidiaries referred
to in our report dated November 3, 1998 which is included in the
Annual Report to Shareholders and incorporated by reference in
Part II of this form, we have also audited Schedule II for each
of the three years in the period ended September 26, 1998. In
our opinion, this schedule presents fairly, in all material
respects, the information required to be set forth therein.
GRANT THORNTON LLP
Philadelphia, Pennsylvania
November 3, 1998
18
SCHEDULE II - VALUATION AND QUALIFYING ACCOUNTS
Opening Charged to Closing
Year Desscription balance expense Deductions balance
1998 Allowance
for doubtful
accounts $392,000 $250,000 $ 45,000(1) $597,000
1997 Allowance
for doubtful
accounts 257,000 252,000 117,000(1) 392,000
1996 Allowance
for doubtful
accounts 271,000 64,000 78,000(1) 257,000
(1) Write-off unncollectible accounts receivable.
19
EXHIBIT 4.2 Credit Agreement dated as of December 5, 1997 by and
among J & J Snack Foods Corp. and Certain of its
Subsidiaries, as borrowers, Mellon Bank, N.A. and
Corestates Bank, N.A., as lenders, and Mellon Bank,
N.A. as Administrative Agent
CREDIT AGREEMENT
dated as of December 5, 1997
by and among
J & J SNACK FOODS CORP. and
CERTAIN OF ITS SUBSIDIARIES, AS BORROWERS,
MELLON BANK, N.A. and CORESTATES BANK, N.A., AS LENDERS,
and MELLON BANK, N.A., AS ADMINISTRATIVE AGENT
PR\79666\1
-1-
Exhibits
A-1 RC Note DBR to Provide
A-2 Term Note DBR to Provide
B Borrowing Notice DBR to Provide
C Prepayment Notice DBR to Provide
D LIBO Rate Selection Notice DBR to Provide
E Officer's Certificate DBR to Provide
F Assignment and Acceptance DBR to Provide
G Joinder Supplement DBR to Provide
Schedules
1.1 Lender's Commitments Banks to Provide
4.1(a) Jurisdictions BRCM to Provide
4.1(n) Property Owned or Leased BRCM to Provide
4.1(p) ERISA Matters BRCM to Provide
5.10 Joining Subsidiaries as
Borrower DBR to Provide
7.1 Remaining Indebtedness BRCM to Provide
7.2 Permitted Liens BRCM to Provide
7.4 Acquisitions Conditions DBR to Provide
7.5 Anticipated Transfer BRCM to Provide
PR\79666\1
-2-
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of December 5, 1997, by
and among J & J SNACK FOODS CORP., a New Jersey corporation
(together with its successors, "J & J"), the Subsidiaries of J &
J referred to on the signature pages hereto and such other
Subsidiaries of J & J which may from time to time become
Borrowers hereunder in accordance with the provisions hereof
(collectively with J & J, the "Borrowers"), MELLON BANK, N.A., a
national banking association (together with its successors and
assigns, "Mellon") and CORESTATES BANK, N.A., a national banking
association (together with its successors and assigns
"CoreStates"; and CoreStates and Mellon, together with other
lender parties hereto from time to time pursuant to Section 12.9
below and their successors and assigns, the "Lenders"), MELLON
BANK, N.A., a national banking association, as Administrative
Agent for itself and for the Lenders hereunder (in such capacity,
together with its successors and assigns in such capacity, the
"Administrative Agent"). Certain terms used herein are defined
in Article 11 below.
W I T N E S S E T H T H A T
WHEREAS, J & J, ICEE USA CORP., a Delaware corporation,
a Subsidiary of J & J and a Borrower hereunder ("IUC"), and COCA-
COLA FINANCIAL CORPORATION, a Delaware corporation ("CCFC")
entered into an Assignment and Sale Agreement dated October 20,
1997 (the "Assignment") whereby CCFC will sell to IUC and IUC
will purchase from CCFC a Zero Coupon Convertible Subordinated
Note (the "NIC Note") due December 23, 1999, in the principal
amount of $1,609,359.00 issued by National ICEE Corporation
("NIC") together with related rights as set forth in the
Assignment; and
WHEREAS, J & J and IUC intend to exercise certain
rights acquired under the Assignment in order to acquire all of
the outstanding capital stock of NIC; and
WHEREAS, J & J has requested that the Lenders extend
the Loans to the Borrowers for the purposes described herein; and
WHEREAS, the Lenders have agreed to extend the Loans to
the Borrowers on the terms and conditions described herein.
NOW, THEREFORE, in consideration of the premises and of
the mutual covenants herein contained and intending to be legally
bound hereby, the parties hereto hereby agree as follows.
ARTICLE 1
CREDIT FACILITY
1.1 COMMITMENT TO LEND.
(a) Term Loan. Upon the terms and subject to the
conditions of this Agreement, each Lender agrees to make, on the
Closing Date, a Loan (a "Term Loan") to the Borrowers in the
amount of such Lender's Term Loan Commitment. The total amount
of the Term Loan Commitment of all Lenders on the Agreement Date
is $40,000,000.00.
(b) Revolving Credit Loans. Upon the terms and
subject to the conditions of this Agreement, each Lender agrees
to make, from time to time during the period from and including
the Closing Date to but excluding the RC Maturity Date, one or
more Loans ("RC Loans") to the Borrowers in an aggregate unpaid
principal amount not exceeding at any time such Lender's RC
Commitment at such time; provided, however, that the Borrowers
shall not request, and the Lenders shall have no obligation to
make, any RC Loans at any time in excess of the Available RC
Commitment. The total amount of the RC Commitment of all Lenders
on the Agreement Date is $30,000,000.00.
1.2 JOINT AND SEVERAL OBLIGATIONS.
WHETHER OR NOT EXPRESSLY STATED HEREIN OR IN ANY OTHER
LOAN DOCUMENT, ALL OBLIGATIONS OF THE BORROWERS (OR OF ANY
BORROWER) HEREUNDER AND UNDER EACH OTHER LOAN DOCUMENT (WHETHER
IN CONNECTION WITH LOANS OR OTHER OBLIGATIONS) ARE JOINT AND
SEVERAL OBLIGATIONS OF ALL BORROWERS.
1.3 MANNER OF BORROWING.
(a) Notice of Borrowing. J & J (on behalf of the
Borrowers) shall give the Administrative Agent notice (which
shall be irrevocable), in the case of Prime Rate Loans, no later
than 12:00 p.m. (Philadelphia, Pennsylvania time) on the Business
Day for the making of such Loans and, in the case of LIBO Rate
Loans, 12:00 p.m. (Philadelphia, Pennsylvania, time) three
Business Days before the requested date for the making of such
Loans. Each such notice shall be in the form of Exhibit B hereto
and shall specify (i) whether the requested Loans are to be Term
Loans or RC Loans, (ii) the requested date for the making of such
Loans which date shall be a Business Day, (iii) the Type or Types
of Loans requested and (iv) the amount of each such Type of Loan,
which amount shall be $1,000,000.00 or any integral multiple of
$500,000.00 in excess thereof (except that in the case of RC
Loans, the amount of the requested Loan may be less if the amount
requested is equal to the total Available RC Commitment). Upon
receipt of any such notice, the Administrative Agent shall
PR\79666\1
-2-
promptly notify each applicable Lender of the contents thereof
and of the amount and Type of each Loan to be made by such Lender
on the requested date specified therein.
(b) Funding by Lenders. Not later than 3:00 p.m.
(Philadelphia, Pennsylvania time) on each requested date for the
making of Loans, each Lender shall make available to the
Administrative Agent, in Dollars and in funds immediately
available to the Administrative Agent at the office designated by
the Administrative Agent, the Loans to be made by such Lender on
such date, provided however that if a Lender does not receive
timely notice from the Administrative Agent as set forth in
paragraph (a) above, such Lender shall fund the required amount
promptly upon receipt of such notice. The obligations of the
Lenders hereunder are several; accordingly, any Lender's failure
to make any Loan to be made by it on the requested date therefor
shall not relieve any other Lender of its obligation to make any
Loan to be made by it on such date, but the latter shall not be
liable for the former's failure.
(c) Permitted Assumption as to Funding. Unless the
Administrative Agent shall have received notice from a Lender
prior to 12:00 p.m. (Philadelphia, Pennsylvania time) on the
requested date for the making of any Loan that such Lender will
not make available to the Administrative Agent the Loan requested
to be made by it on such date, the Administrative Agent may
assume that such Lender has made such Loan available. The
Administrative Agent in its sole discretion and in reliance upon
such assumption, may make available to the Borrowers on the
requested date a corresponding amount on behalf of such Lender.
If and to the extent such Lender shall not have made available to
the Administrative Agent the Loans requested to be made by such
Lender on such date and the Administrative Agent shall have so
made available to the Borrowers a corresponding amount on behalf
of such Lender, (i) such Lender shall, on demand, pay to the
Administrative Agent such corresponding amount together with
interest thereon, for each day from the date such amount shall
have been so made available by the Administrative Agent to the
Borrowers until the date such amount shall have been paid in full
to the Administrative Agent, at the Federal Funds Rate until (and
including) the third Business Day after demand is made and
thereafter at the Prime Rate, and (ii) the Administrative Agent
shall be entitled to all interest payable by Borrowers on such
amount for the period commencing on the date such amount was
advanced by the Administrative Agent to but not including the
date on which such amount is received by the Administrative Agent
from such Lender. Moreover, any Lender that shall have failed to
make available the required amount shall not be entitled to vote
on such matters as Lenders or Required Lenders are otherwise
entitled to vote on or consent to or approve under this Agreement
and the other Loan Documents until such amount with interest is
paid in full to the Administrative Agent by such Lender. Without
limiting any obligations of any Lender pursuant to this paragraph
(c), if such Lender does not pay such corresponding amount
PR\79666\1
-3-
promptly upon the Administrative Agent's demand therefor, the
Administrative Agent shall notify J & J (on behalf of the
Borrowers) and the Borrowers shall promptly repay such
corresponding amount to the Administrative Agent together with
accrued interest thereon at the applicable rate or rates on such
Loans.
(d) Disbursements of Funds to Borrowers. All amounts
made available to the Administrative Agent in accordance with
paragraph (b) above shall be disbursed by the Administrative
Agent promptly but in any event not later than 4:00 p.m.
(Philadelphia, Pennsylvania time) on the requested date therefor
in Dollars, in funds immediately available to the Borrowers by
crediting such amount to an account of J & J at the
Administrative Agent's Domestic Lending Office or in such other
manner as may be agreed to by J & J and the Administrative Agent.
1.4 SCHEDULED REPAYMENTS.
(a) Term Loans. The Term Loans shall mature and
become due and payable and shall be repaid by the Borrowers in
monthly installments, payable on successive Monthly Payment Dates
commencing on January 30, 1998, and ending on the Term Loan
Maturity Date (whether or not such date would otherwise be a
Monthly Payment Date). Each such installment shall be in an
amount equal to $666,666.67, provided that the final installment
shall be in an amount equal to the aggregate amount of the Term
Loans then outstanding.
(b) RC Loans. The aggregate outstanding principal
amount of the RC Loans shall mature and become due and payable,
and shall be repaid by the Borrowers, on the RC Maturity Date.
1.5 VOLUNTARY PREPAYMENTS.
(a) Optional Prepayments. The Borrowers may, at any
time and from time to time, prepay the Loans in whole or in part,
without premium or penalty (but with any payment required under
Section 2.4 (Breakage)), except that any optional partial
prepayment (other than a prepayment of all outstanding RC Loans)
shall be in an aggregate principal amount of $500,000.00 or any
integral multiple of $250,000.00 in excess thereof. Amounts to
be so prepaid shall irrevocably be due and payable on the date
specified in the applicable notice of prepayment delivered
pursuant to paragraph (b) of this Section 1.5 together with
interest thereon as provided in Section 1.8 (Interest) and
together with any payment required under Section 2.4 (Breakage).
(b) Application and Timing of Prepayments.
PR\79666\1
-4-
(i) Notice. The Borrowers shall give the
Administrative Agent notice of each prepayment of Loans, which
notice, in the case of a prepayment of Prime Rate Loans, shall be
given no later than 1:00 p.m. (Philadelphia, Pennsylvania time)
one (1) Business Day before and, in the case of a prepayment of
LIBO Rate Loans, no later than 12:00 P.M. (Philadelphia,
Pennsylvania, time) three (3) Business Days before, the date of
such prepayment. Each such notice of prepayment shall be in the
form of Exhibit C hereto and shall specify (i) the date such
prepayment is to be made and (ii) whether the Loans to be prepaid
are Term Loans or RC Loans, and (iii) the amount and Type and, in
the case of any LIBO Rate Loan, the last day of the applicable
Interest Period for the Loan to be prepaid. Upon receipt of any
such notice, the Administrative Agent shall promptly notify each
applicable Lender of the contents thereof.
(ii) Timing and Application of Voluntary
Prepayments. Any voluntary prepayments pursuant to paragraph (a)
of this Section 1.5 shall be applied in the following order
unless otherwise directed by the Borrowers:
(A) First, prepayments shall be applied
against any amounts due and payable in respect of
the Loan Obligations.
(B) Second, prepayments shall be applied
against the RC Loans but with no corresponding
reduction in the amount of the RC Commitment
unless otherwise specified by J & J (on behalf of
the Borrowers.
(C) Third, prepayments shall be applied
against the Term Loans, applied to each of the
respective remaining installments thereof in
inverse order of their maturity.
Any excess shall be applied to any other amounts owing in respect
of the Loan Obligations and, if all such Loan Obligations have
been then paid in full, then any excess amount shall be returned
to J & J (on behalf of the Borrowers) or as otherwise required by
applicable Law.
(c) Certain Provisions Respecting Prepayments
Generally. Prepayments shall be subject to the interest payment
provisions, as applicable, set forth in Section 1.8 and the
breakage indemnity provisions, as applicable, set forth in
Section 2.4 below.
1.6 PAYMENTS BY THE BORROWERS IN GENERAL.
(a) Time, Place and Manner. All payments due to the
Administrative Agent under the Loan Documents shall be made to
the Administrative Agent at the office designated by the
PR\79666\1
-5-
Administrative Agent on the signature pages hereto or to such
other Person or at such other address as the Administrative Agent
may designate by written notice to J & J on behalf of the
Borrowers. All payments due to any Lender under the Loan
Documents, whether made to the Administrative Agent or directly
to a Lender, shall be made for the account of, in the case of
payments in respect of LIBO Rate Loans, such Lender's Eurodollar
Lending Office and, in the case of all other payments, such
Lender's Domestic Lending Office. Except as otherwise set forth
in this Agreement, a payment shall not be deemed to have been
made on any day unless such payment has been received by the
required Person, at the required place of payment, in Dollars in
funds immediately available to such Person, no later than 1:00
p.m. (Philadelphia, Pennsylvania time) on such day; provided,
however, that the failure of the Borrowers to make any such
payment by such time shall not constitute a Default hereunder so
long as such payment is received no later than 3:00 p.m.
(Philadelphia, Pennsylvania time) on such day, but any such
payment received later than 1:00 p.m. (Philadelphia, Pennsylvania
time) on such day shall be deemed to have been made on the next
Business Day for the purpose of calculating interest on the
amount paid, provided further, that any such payment made with
the proceeds of Loans shall be deemed to have been made on the
date of the making of such Loans, so long as such proceeds are
immediately so applied and are not otherwise disbursed to the
Borrowers.
(b) No Reductions. All payments due to the
Administrative Agent or any Lender under this Agreement and the
other Loan Documents, shall be made by the Borrowers without any
reduction or deduction whatsoever, including any reduction or
deduction for any charge, set-off, holdback, recoupment or
counterclaim (whether sounding in tort, contract or otherwise).
(c) Authorization to Charge Accounts. The Borrowers
hereby authorize each Lender Party, each participant and each
Affiliate of each Lender Party if and to the extent any amount
payable by the Borrowers under the Loan Documents (whether
payable to such Person or to any other Lender Party) is not
otherwise paid when due, to charge such amount against any or all
of the demand deposit or other accounts of any Borrower with such
Person (whether maintained at a branch or office located within
or without the United States), with the Borrowers remaining
jointly and severally liable for any deficiency. The Person so
charging any such account shall give the relevant Borrower prompt
notice thereof, but any failure to give or delay in giving such
notice shall not affect such Person's right to effect such
charge. Such charging of accounts shall be subject to the
provisions of Section 12.18 hereof.
(d) Extension of Payment Dates if Not a Business Day.
Whenever any payment to the Administrative Agent or any Lender
under the Loan Documents would otherwise be due (except by reason
of acceleration) on a day that is not a Business Day, such
PR\79666\1
-6-
payment shall instead be due on the next succeeding Business Day
unless, in the case of a payment of the principal of LIBO Rate
Loans, such extension would cause payment to be due in the next
succeeding calendar month, in which case such due date shall be
advanced to the next preceding Eurodollar Business Day. If the
due date for any payment under the Loan Documents is extended
(whether by operation of any Loan Document, applicable Law or
otherwise), such payment shall bear interest for such extended
time at the rate of interest applicable hereunder.
(e) Disbursement of Payments to Lenders. The
Administrative Agent shall promptly distribute to each applicable
Lender Party its ratable share of each payment received by the
Administrative Agent under the Loan Documents for the account of
such Lender Party by crediting an account of such Lender Party at
the Administrative Agent's office or by wire transfer to an
account of such Lender Party at an office of any other commercial
bank located in the United States or at any Federal Reserve Bank
designated by such Person. Unless the Administrative Agent shall
have received notice from J & J (on behalf of the Borrowers)
prior to the date on which any payment is due to any Lender
Parties under the Loan Documents that the Borrowers will not make
such payment in full, the Administrative Agent may assume that
the Borrowers have made such payment in full to the
Administrative Agent on such date and the Administrative Agent,
in its sole discretion may, in reliance upon such assumption,
cause to be distributed to each applicable Lender Party on such
due date, a corresponding amount with respect to the amount then
due to such Person. If and to the extent that the Borrowers
shall not have so made such payment in full to the Administrative
Agent, and the Administrative Agent shall have so distributed to
such Lender or Lenders a corresponding amount, such Lender
Parties shall, on demand, repay to the Administrative Agent the
amount so distributed together with interest thereon, for each
day from the date such amount is distributed to such Lender Party
until the date the such Person repays such amount to the
Administrative Agent, at the Federal Funds Rate until (and
including) the third Business Day after demand is made and
thereafter at the Prime Rate. Moreover, any Lender Party that
shall have failed to make available the required amount shall not
be entitled to vote on such matters as Lenders or Required
Lenders are otherwise entitled to vote on or consent to or
approve under this Agreement and the other Loan Documents until
such amount with interest is paid in full to the Administrative
Agent by such Lender. Nothing in this Section 1.6 shall relieve
the Borrowers from any payment obligations.
(f) Breakage Costs on LIBO Rate Loans. Any repayment
or prepayment of a LIBO Rate Loan made on a day other than the
last day of the applicable Interest Period therefor shall be
subject to payments in respect of breakage costs as required to
be paid in respect thereof pursuant to Section 2.4 below.
PR\79666\1
-7-
1.7 REDUCTIONS OF RC COMMITMENT.
(a) Optional Reductions. The Borrowers may reduce the
RC Commitment by giving the Administrative Agent notice (which
shall be irrevocable) thereof no later than 11:00 a.m.
(Philadelphia, Pennsylvania, time) on the third Business Day
before the requested date of such reduction, provided, that each
partial reduction thereof shall be in an amount equal to
$5,000,000.00 or any integral multiple of $1,000,000.00 in excess
thereof and,provided, further, that no reduction shall reduce
the RC Commitment to an amount less than the aggregate of the
principal amount of all RC Loans outstanding on such date (after
giving effect to any repayment or prepayment of RC Loans made on
or prior to such date). Upon receipt of any such notice, the
Administrative Agent shall promptly notify each Lender of the
contents thereof and the amount (based on a pro rata reduction to
each Lender's RC Commitment) to which such Lender's RC Commitment
is to be reduced.
(b) No Reinstatement of RC Commitment. All reductions
of the RC Commitment are permanent and the RC Commitment cannot
be restored without the written consent of all Lenders.
1.8 INTEREST.
(a) Interest Rates in General. Subject to the terms
and conditions of this Agreement, each Loan, at the option of the
Borrowers, shall bear interest on the outstanding principal
amount thereof until paid in full at a rate per annum equal to
(i) the Prime Rate as in effect from time to time or (ii) the
applicable LIBO Rate for a specified Interest Period plus in the
case of clause (ii) the Applicable Margin.
(b) Election of LIBO Rate. Unless otherwise
designated by the Borrowers as a LIBO Rate Loan in accordance
with this paragraph (b), each Loan shall be deemed to be a Prime
Rate Loan as more fully set forth below.
(i) Prime Rate Unless Otherwise Designated.
Prime Rate Loans shall continue as Prime Rate Loans unless and
until such Loans are converted into Loans of another Type. LIBO
Rate Loans for any Interest Period shall continue as Loans of
such Type until the end of the then current Interest Period
therefor, at which time they shall be automatically converted
into Prime Rate Loans unless J & J (on behalf of the Borrowers)
shall have given the Administrative Agent notice in accordance
with clause (ii) below requesting that such Loans continue as
LIBO Rate Loans for another Interest Period of a specified
duration.
PR\79666\1
-8-
(ii) Election of LIBO Rate. To elect a LIBO
Rate, J & J (on behalf of the Borrowers) shall give the
Administrative Agent notice (which shall be irrevocable) no later
than 12:00 p.m. (Philadelphia, Pennsylvania, time) three (3)
Eurodollar Business Days before the requested date of the
funding, conversion or continuation which date shall be a
Eurodollar Business Day. Each such notice shall be in the form
of Exhibit D hereto and shall specify (A) the requested date of
such funding, conversion or continuation, (B) whether the subject
Loan is a new advance or an existing Loan that is to be converted
or continued, (C) in the case of any LIBO Rate Loan being
continued, the last day of the current Interest Period, (D)
whether such Loan is to be a Term Loan, or an RC Loan and (E) the
amount of, and the desired Interest Period for, the Loan subject
to such LIBO Rate election,provided that the Borrowers shall not
be entitled to select an Interest Period for any Loan which shall
end on a date later than the Maturity Date applicable to such
Loan. Upon receipt of any such notice, the Administrative Agent
shall promptly notify each applicable Lender of the contents
thereof.
(iii)LIBO Rate Suspended During Event of
Default. Notwithstanding anything to the contrary contained in
clauses (i) or (ii) of this paragraph (b), so long as an Event of
Default shall have occurred and be continuing, the Administrative
Agent may (and, at the request of the Required Lenders, shall)
notify J & J (on behalf of the Borrowers) that Loans may only be
converted into or continued upon the expiration of the applicable
current Interest Period therefor as Prime Rate Loans or Loans of
such specified Types as shall be acceptable to the Required
Lenders. Thereafter, until no Event of Default shall continue to
exist, Loans may not be converted into or continued as Loans of
any Type other than Prime Rate Loans or one or more of such
specified Types.
(iv) Limitation on Types of Loans.
Notwithstanding anything to the contrary contained in this
Agreement, the Borrowers shall borrow, prepay, convert and
continue Loans in a manner such that (A) unless otherwise agreed
to by the Administrative Agent, the aggregate principal amount of
LIBO Rate Loans of the same Type shall, at all times, be not less
than $1,000,000.00 and (B) there shall be, at any one time, no
more than the number of Interest Periods specified below in
effect for each Loan:
????? Maximum No. of
Interest Periods Loan
five (5) RC Loans
three (3) Term Loan
(v) Flexibility as to Source. Each Lender
may fund LIBO Rate Loans from any source that such Lender deems
PR\79666\1
-9-
(in its sole discretion) appropriate without loss of any rights
hereunder.
(c) Interest Payment Dates. Interest shall be
payable, (i) in the case of Prime Rate Loans, monthly in arrears
on each Monthly Payment Date, (ii) in the case of LIBO Rate
Loans, on the last day of each applicable Interest Period (and,
in the case of any LIBO Rate Loan having an Interest Period
longer than three months, on each three month anniversary of the
first day of such Interest Period) and (iii) in the case of any
Loan, when such Loan shall be due (whether at maturity, upon
mandatory prepayment, by reason of notice of prepayment or
acceleration or otherwise) or converted, but only to the extent
then accrued on the amount then so due or converted.
(d) Default Rate. At any time that an Event of
Default shall have occurred and shall be continuing, any amount
payable hereunder and under each other Loan Document shall bear
interest (whether before or after judgment), payable on demand,
at a rate per annum equal to the applicable Default Rate.
1.9 FEES.
(a) Commitment Fees. The Borrowers shall pay to the
Administrative Agent, for the account of each Lender, a
commitment fee calculated at a rate per annum equal to 0.25% on
the daily unused amount of such Lender's RC Commitment for each
day from and including the Closing Date to but excluding the RC
Maturity Date. The commitment fee shall be payable in arrears
(i) on successive Quarterly Payment Dates beginning with the
first Quarterly Payment Date after the Closing Date, (ii) on the
date of any reduction of the RC Commitment (to the extent accrued
and unpaid on the amount of such reduction) and (iii) on the RC
Maturity Date.
(b) Other Fees. The Borrowers shall pay to the
Administrative Agent for the sole account of the Administrative
Agent, an annual Administrative Agent's fee as have been or may
be agreed to in writing by the Borrowers or any of them and the
Administrative Agent in connection with this Agreement and the
transactions contemplated by this Agreement.
1.10 COMPUTATION OF INTEREST AND FEES. Interest and
commitment fees shall be computed on the basis of a year of 360
days and paid for the actual number of days elapsed. Interest
and commitment fees for any period shall be calculated from and
including the first day thereof to but excluding the last day
thereof.
PR\79666\1
-10-
1.11 PROMISSORY NOTES; RECORDS OF ACCOUNT. Each Lender's
Loans and the Borrowers' joint and several obligations to repay
such Loans with interest in accordance with the terms of this
Agreement shall be evidenced by this Agreement, the Register and
other records of the Administrative Agent and such Lender and, in
the case of Term Loans, a single Term Note payable to the order
of such Lender, and in the case of RC Loans, a single RC Note
payable to the order of such Lender. The records of each Lender
shall be prima facie evidence of such Lender's Loans and, in each
case, of accrued interest thereon and all payments made in
respect thereto. In the event that there is any dispute
concerning the amount of any such obligations, the amount of each
Lender's Commitment with respect to RC Loans and Term Loans and
the amount of outstanding Loan Obligations of each and every Type
shall at all times be ascertained from the records of the
Administrative Agent, including the Register, all of which shall
be conclusive absent manifest error.
1.12 PRO RATA TREATMENT. Except to the extent otherwise
provided herein, (a) Term Loans shall be made by, and principal,
interest and fees in respect thereof shall be paid or repaid to,
the Lenders pro rata in accordance with their respective
Commitments and interest in Term Loans; and (b) RC Loans shall be
made by, and principal, interest and fees in respect thereof
shall be paid or repaid to, the Lenders pro rata in accordance
with their respective RC Commitments and interest in RC Loans.
1.13 TAXES ON PAYMENTS.
(a) Taxes Payable by the Borrowers. If any Tax is
required to be withheld or deducted from, or is otherwise payable
by the Borrowers in connection with, any payment due to the
Administrative Agent or any Lender that is not a "United States
Person" (as such term is defined in Section 7701(a)(30) of the
Code), the Borrowers (i) shall, if required, withhold or deduct
the amount of such Tax from such payment and, in any case, pay
such Tax to the appropriate taxing authority in accordance with
applicable Law and (ii) except in the case of any Bank Tax, shall
pay to such Lender or the Administrative Agent such additional
amounts as may be necessary so that the net amount received by
such Person with respect to such payment, after withholding or
deducting all Taxes required to be withheld or deducted, is equal
to the full amount payable hereunder. If any Tax is withheld or
deducted from, or is otherwise payable by the Borrowers in
connection with, any payment due to any Lender or the
Administrative Agent hereunder, the Borrowers shall furnish to
such Person the original or a certified copy of a receipt (if
any) for such Tax from the applicable taxing authority or other
evidence of payment thereof satisfactory to such Person within 30
days after the date of such payment (or, if such receipt shall
PR\79666\1
-11-
not have been made available by such taxing authority within such
time, the Borrowers shall use reasonable efforts to promptly
obtain and furnish such receipt). If the Borrowers fail to pay
any such Taxes when due to the appropriate taxing authority or
fail to remit to any Lender or the Administrative Agent the
required receipts or other evidence of payment thereof
satisfactory to such Person, the Borrowers shall indemnify such
Person for any Taxes, interest, penalties or additions to Tax
that may become payable by such Person as a result of any such
failure.
(b) Taxes Payable by any Lender or the Administrative
Agent. The Borrowers shall, promptly upon request by any Lender
or the Administrative Agent that is not a United States Person,
pay to such Person an amount equal to (i) all Taxes (other than
Bank Taxes and without duplication of amounts paid pursuant to
the preceding paragraph (a)) payable by such Person with respect
to any payment due to such Person hereunder and (ii) all Taxes
(other than Bank Taxes) payable by such Person as a result of
payments made by the Borrowers (whether made to a taxing
authority or to such Person pursuant to the preceding paragraph
(a) or this paragraph (b)).
(c) Credits and Deductions. If any Lender or the
Administrative Agent is, in its sole opinion, able to apply for
any refund, offset, credit, deduction or other reduction in Taxes
by reason of any payment made by the Borrowers under the
preceding paragraphs (a) or (b), such Lender or the
Administrative Agent, as the case may be, shall use reasonable
efforts to obtain such refund, offset, credit, deduction or other
reduction and, upon receipt thereof, will pay to the Borrowers
such amount, not exceeding the increased amount paid by the
Borrowers, as is equal to the net after-tax value to such Lender
or the Administrative Agent, in its sole opinion, of such part of
such refund, offset, credit, deduction or other reduction as it
considers to be allocable to such payment by the Borrowers,
having regard to all of such Person's dealings giving rise to
similar refunds, offsets, credits, deductions or other reductions
in relation to the same tax period and to the cost of obtaining
the same; provided, however, that if such Person has made a
payment to the Borrowers pursuant to this paragraph (c) and the
applicable refund, offset, credit, deduction or other reduction
in Tax is subsequently disallowed, the Borrowers shall, promptly
upon request by the Administrative Agent or such Lender refund to
such Person that portion of such payment determined by such
Person, in its sole opinion, relating to such disallowance; and
provided, further that (i) the Administrative Agent or such
Lender, as the case may be, shall not be obligated to disclose to
the Borrowers any information regarding its Tax affairs or
computations and (ii) nothing in this paragraph (c) shall
interfere with the right of such Person to arrange its Tax
affairs as it deems appropriate.
PR\79666\1
-12-
(d) Exemption from U.S. Withholding Taxes. Each
Lender that is not a United States Person shall submit to the
Borrowers and the Administrative Agent, on or before the fifth
day prior to the first Monthly Payment Date occurring after the
Closing Date (or, in the case of a Person that is not a United
States Person and that became a Lender by assignment, promptly
upon such assignment), two duly completed and signed copies of
either (A) Form 1001 of the United States Internal Revenue
Service entitling such Lender to a complete exemption from
withholding on all amounts to be received by such Lender pursuant
to this Agreement and the Loans, (B) Form 4224 of the United
States Internal Revenue Service relating to all amounts to be
received by such Lender pursuant to this Agreement and the Loans
or (C) in the case of a Lender Party that is claiming an
exemption from United States withholding tax under Section 871(h)
or 881(c) of the Internal Revenue Code with respect to payments
of "portfolio interest" two accurate and complete signed original
Forms W-8 (or any successor form prescribed by the Internal
Revenue Service, certifying that such Lender Party is exempt from
or is entitled to a reduced rate of United States withholding tax
on payments under this Agreement or the Notes) and, if such
Lender Party delivers such Forms W-8 (or successor form), two
signed certificates that such Lender Party is not (1) a "bank"
for purposes of Section 881(c) of the Internal Revenue Code, (2)
is not a 10% shareholder (within the meaning of Section
871(h)(3)(B) of the Internal Revenue Code) of any Borrower and
(3) is not a controlled foreign corporation related to any
Borrower (within the meaning of Section 864(d)(4) of the Internal
Revenue Code), as appropriate, Each such Lender shall, from
time to time after submitting either such form, submit to the
Borrowers and the Administrative Agent such additional duly
completed and signed copies of one or the other such forms (or
any successor forms as shall be adopted from time to time by the
relevant United States taxing authorities) as may be (A)
requested in writing by the Borrowers or the Administrative Agent
and (B) appropriate under the circumstances and under then
current United States law or regulations to avoid or reduce
United States withholding taxes on payments in respect of all
amounts to be received by such Lender pursuant to this Agreement
or the Loans. Upon the request of the Borrowers or the
Administrative Agent, each Lender that is a United States Person
shall submit to the Borrowers and the Administrative Agent a
certificate to the effect that it is a United States Person.
(e) Obligations under this Section 1.13 shall survive
payment of the Loans.
1.14 REGISTERED NOTES AND LOANS.
(a) Request for Registration. Any Lender may request
the Borrowers (through the Administrative Agent), and the
Borrowers agree thereupon, to register such Loans as provided in
Section 1.14(c) and to issue such Lender's Note(s), evidencing
PR\79666\1
-13-
such Loans, or to exchange such Note(s) for new Note(s),
registered as provided in Section 1.14(c) (each, a "Registered
Note"). A Registered Note may not be exchanged for a Note that
is not in registered form. A Registered Note shall be deemed to
be and shall be a Note for all purposes of this Agreement and the
other Loan Documents.
(b) Delivery of Tax Forms. Each Non-U.S. Lender that
requests or holds a Registered Note pursuant to Section 1.14(a)
or registers its Loans pursuant to Section 1.14(a) (a "Registered
Lender") (or, if such Registered Lender is not the beneficial
owner thereof, such beneficial owner) shall deliver to J & J (on
behalf of the Borrowers) (with a copy to the Administrative
Agent) prior to or at the time such Non-U.S. Lender becomes a
Registered Lender, the applicable form described in Section
1.13(d) (or such successor and related forms as may from time to
time be adopted by the relevant taxing authorities of the United
States) together with an annual certificate stating that such
Registered Lender or beneficial owner, as the case may be, is not
a "bank" within the meaning of Section 881(c)(3)(A) of the Code
and is not otherwise described in Section 881(c)(3) of the Code.
Each Registered Lender or beneficial owner, as the case may be,
shall promptly notify J & J (on behalf of the Borrowers) (with a
copy to the Administrative Agent) if at any time such Registered
Lender or beneficial owner, as the case may be, determines that
it is no longer in a position to provide such previously
delivered certificate to the Borrowers (or any other form of
certification adopted by the relevant taxing authorities of the
United States for such purposes).
(c) Registration of Loans. The Administrative Agent,
acting, for this purpose, as agent of the Borrowers, shall, upon
request of any Registered Lender, enter in the Register the name,
address and taxpayer identification number (if provided) of the
Registered Lender or beneficial owner, as the case may be. In
addition to the requirements of Section 12.9 (Successors and
Assigns), a Registered Note and the Loans evidenced thereby (or
such Loans pending delivery of such Registered Note) or any other
Loans registered pursuant to Section 1.14(a) above may be
assigned or otherwise transferred in whole or in part only by
registration of such assignment or transfer of such Registered
Note and/or the Loans so registered on the Register (and each
such Registered Note shall expressly so provide). Any assignment
or transfer of all or part of such Loans and such Registered Note
shall be registered on the Register only upon compliance with the
provisions of Section 12.9 and, in the case of Registered Notes,
surrender for registration of assignment or transfer of the
Registered Note evidencing such Loans, duly endorsed by (or
accompanied by a written instrument of assignment or transfer
fully executed by) the Registered Lender thereof, and thereupon
one or more new Registered Notes in the same aggregate principal
amount shall be issued to the designated assignee(s) or
transferee(s) and, if less than all of such Registered Notes is
PR\79666\1
-14-
thereby being assigned or transferred, the assignor or
transferor.
PR\79666\1
-15-
ARTICLE 2
YIELD PROTECTION AND BREAKAGE INDEMNITY
2.1 MANDATORY SUSPENSION AND CONVERSION OF LIBO RATE LOANS.
Any Lender's obligations to make, continue or convert into LIBO
Rate Loans of any Type shall be suspended, all such Lender's
outstanding Loans of such Type shall be converted into Prime Rate
Loans on the last day of their applicable Interest Periods (or,
in the case of clause (c) below, on the last day such Lender may
lawfully continue to maintain Loans of such Type if earlier, or,
in the case of clause (d) below, on the day determined by such
Lender to be the last Business Day before the effective date of
the applicable restriction), and all pending requests for the
making or continuation of or conversion into Loans of such Type
by such Lender shall be deemed requests for Prime Rate Loans, if:
(a) on or prior to the date required for the
determination of a LIBO Rate for any Interest Period, the
Administrative Agent determines that for any reason appropriate
information is not available to it for purposes of determining
the LIBO Rate for such Interest Period;
(b) on or prior to the first day of any Interest
Period for a LIBO Rate Loan, the Required Lenders have informed
the Administrative Agent of their determination that the LIBO
Rate as determined by the Administrative Agent for such Interest
Period would not accurately reflect the cost to such Lenders of
making, continuing or converting into a LIBO Rate Loan for such
Interest Period;
(c) at any time such Lender determines that any
Regulatory Change makes it unlawful or impracticable for such
Lender or its applicable Eurodollar Lending Office to make,
continue or convert into a LIBO Rate Loan of such Type, or to
comply with its obligations hereunder in respect thereof; or
(d) such Lender notifies the Administrative Agent of
its determination that (i) by reason of any Regulatory Change,
such Lender or its applicable Eurodollar Lending Office is
restricted, directly or indirectly, in the amount that it may
hold of (A) a category of liabilities that includes deposits by
reference to which, or on the basis of which, the interest rate
applicable to LIBO Rate Loans of such Type is directly or
indirectly determined or (B) the category of assets that includes
LIBO Rate Loans of such Type and (ii) in connection therewith,
such Lender has elected not to make available hereunder LIBO Rate
Loans of such Type.
If, as a result of this Section 2.1, any Loan of any Lender that
would otherwise be made or maintained as or converted into a LIBO
Rate Loan for any Interest Period is instead made or maintained
as or converted into a Prime Rate Loan, then, unless the
corresponding Loan of each of the other Lenders is also to be
PR\79666\1
-16-
made or maintained as or converted into a Prime Rate Loan, such
Loan shall be treated as being a LIBO Rate Loan of such Type for
such Interest Period for all purposes of this Agreement
(including the timing, application and proration among the
Lenders of interest payments, conversions and prepayments) except
for the calculation of the interest rate borne by such Loan. The
Administrative Agent shall promptly notify J & J (on behalf of
the Borrowers) and each Lender of the existence or occurrence of
any condition or circumstance specified in clause (a) or (b)
above, and each Lender shall promptly notify J & J (on behalf of
the Borrowers) and the Administrative Agent of the existence,
occurrence or termination of any condition or circumstance
specified in clause (c) or (d) above applicable to such Lender's
Loans, but the failure by the Administrative Agent or such Lender
to give any such notice shall not affect such Lender's rights
hereunder.
2.2 REGULATORY CHANGES. If in the determination of any
Lender (a) any Regulatory Change shall directly or indirectly
(i) reduce the amount of any sum received or
receivable by such Lender with respect to any LIBO Rate Loan
or the return to be earned by such Lender on any LIBO Rate
Loan,
(ii) impose a cost on such Lender or any Affiliate
of such Lender that is attributable to the making or
maintaining of, or such Lender's commitment to make or
acquire, any LIBO Rate Loan,
(iii) require such Lender or any Affiliate of such
Lender to make any payment on or calculated by reference to
any amount received by such Lender in respect of its LIBO
Rate Loans or its obligations to make LIBO Rate Loans or
(iv) reduce, or have the effect of reducing, the
rate of return on any capital such Lender or any Affiliate
of such Lender is required to maintain on account of any
LIBO Rate Loan or such Lender's commitment to make any LIBO
Rate Loan.
and (b) such reduction, increased cost or payment shall not be
fully compensated for by an adjustment in the applicable rates of
interest payable under the Loan Documents, then the Borrowers
shall pay to such Lender such additional amounts as such Lender
determines will fully compensate it for such reduction, increased
cost or payment. Such additional amounts shall be payable, in
the case of those applicable to prior periods, within 15 Business
Days after request for such payment by such Lender, accompanied
by the certificate described in Section 2.5 and, in the case of
those applicable to future periods, on the dates specified, or
determined in accordance with a method specified, by such Lender,
provided that the Borrowers shall not be liable for any amount
payable with respect to any period more than 90 days before the
PR\79666\1
-17-
date of such request or certificate, or, if earlier the
retroactive effective date of the Regulatory Change if such
Regulatory Change occurs during such 90-day period.
2.3 CAPITAL AND RESERVE REQUIREMENTS. If, in the
determination of any Lender, such Lender or any Affiliate thereof
is required, under applicable Law (including Regulation D), or
interpretations, directives, requests and governmental or
regulatory guidelines (whether or not having the force of law),
to maintain capital or deposit any reserve on account of any
Loan, or any commitment to make any Loan then, upon request by
such Lender, the Borrowers shall pay to such Lender such
additional amounts as such Person determines will fully
compensate it for any reduction in the rate of return on the
capital that such Lender or such Affiliate thereof is so required
to maintain. Such additional amounts shall be payable, in the
case of those applicable to prior periods, within 15 Business
Days after request by such Lender for such payment accompanied by
the certificate described in Section 2.5 (provided that the
Borrowers shall not be liable for any amount payable with respect
to any period more than 90 days before the date of such request
or certificate, or, if earlier, the retroactive effective date of
such determination if made during such 90-day period), and, in
the case of those relating to future periods, on the dates
specified, or determined in accordance with a method specified,
by such Lender.
2.4 BREAKAGE. The Borrowers shall pay to each Lender, upon
request, such amount as such Lender reasonably determines is
necessary to compensate it for any loss, cost or expense incurred
by it as a result of (a) any payment, prepayment or conversion of
a LIBO Rate Loan on a date other than the last day of an Interest
Period for such LIBO Rate Loan or (b) a LIBO Rate Loan for any
reason not being made or converted, or any payment of principal
thereof or interest thereon not being made, on the date therefor
determined in accordance with the applicable provisions of this
Agreement. At the election of such Lender, and without limiting
the generality of the foregoing, but without duplication, such
compensation on account of losses may include an amount equal to
the excess of (i) the interest that would have been received from
the Borrowers under this Agreement during the remainder of the
applicable Interest Period over (ii) the interest component of
the return that such Lender determines it could have obtained had
it placed such amount on deposit in the interbank Dollar market
for a period equal to such remaining portion of the Interest
Period.
2.5 DETERMINATIONS. In making the determinations
contemplated by this Article 2, each Lender shall make such
estimates, assumptions, allocations and the like that such Person
PR\79666\1
-18-
in good faith determines to be appropriate, and such Person's
selection thereof in accordance with this Section 2.5, and the
determinations made by such Person on the basis thereof, shall be
final, binding and conclusive upon the Borrowers, except, in the
case of such determinations, for manifest errors. Each Lender
shall furnish to the Borrowers, at the time of any request for
compensation under Section 2.2 or 2.3, a certificate outlining in
reasonable detail the computation of any amounts claimed by it
under this Article 2 and the assumptions underlying such
computations, which shall include a statement of an officer of
such Person certifying that such request for compensation is
being made pursuant to a policy adopted by such Person to seek
such compensation generally from customers similar to the
Borrowers and having similar provisions in agreements with such
Person.
2.6 REPLACEMENT OF LENDERS. If any Lender requests
compensation pursuant to Sections 1.13 (Taxes on Payments), 2.2
(Regulatory Changes) or 2.3 (Capital and Reserve Requirements),
or such Lender's obligation to make or continue Loans as LIBO
Rate Loans shall be suspended pursuant to Section 2.1 (Mandatory
Suspension and Conversion of LIBO Rate Loans) or such Lender has
defaulted on its obligations to make or participate in Loans
pursuant to Section 1.3 (Manner of Borrowing), J & J (on behalf
of the Borrowers), upon three Business Days' notice, may require
that such Lender transfer all of its right, title and interest
under this Agreement, such Lender's Notes, if any, and the other
Loan Documents to any Eligible Institution identified by J & J
(on behalf of the Borrowers) subject to
(a) the consent of the Administrative Agent (which
consent shall not be unreasonably withheld),
(b) satisfaction of the other conditions specified in
Section 12.9 below (Successors and Assigns),
(c) the agreement of the proposed transferee to assume
all of the obligations of such Lender hereunder and under the
other Loan Documents for consideration equal to the outstanding
principal amount of such Lender's Loans, interest thereon to the
date of such transfer, and all other amounts payable hereunder to
such Lender to the date of transfer,
(d) such transferor Lender shall have been paid on or
prior to the date of such transfer all fees and other amounts
payable to such transferor hereunder including those amounts
payable under said Sections 1.13, 2.2 or 2.3, as applicable (and
including any fees accrued hereunder and any amounts that would
be payable under Section 2.4 (Breakage) as if all of such
Lender's Loans were being prepaid in full on such date) or
arrangements satisfactory to the transferor Lender shall have
been made for such payments, and
PR\79666\1
-19-
(e) satisfaction of the condition that if the Lender
being replaced has requested compensation pursuant to Sections
1.13, 2.2 or 2.3, the proposed transferee's aggregate requested
compensation, if any, pursuant to Sections 1.13, 2.2 or 2.3 with
respect to such replaced Lender's Loans is lower than that of the
Lender replaced.
Without prejudice to the survival of any other agreement of the
Borrowers hereunder, the agreements of the Borrowers contained in
Sections 1.13 (Taxes on Payments), 2.2 (Regulatory Changes), 2.3
(Capital and Reserve Requirements), 2.4 (Breakage), 12.12
(Indemnification) and 12.13 (Expenses) (without duplication of
any payments made to such Lender by the Borrowers or the proposed
transferee) shall survive for the benefit of any Lender replaced
under this Section 2.6 with respect to the time prior to such
replacement.
2.7 CHANGE OF LENDING OFFICE. Each Lender agrees that,
upon the occurrence of any event giving rise to the operation of
Sections 1.13 (Taxes on Payments), 2.1 (Mandatory Suspension and
Conversion of LIBO Rate Loans), 2.2 (Regulatory Changes) or 2.3
(Capital and Reserve Requirements) with respect to such Lender,
it will, if requested by the Borrowers, use reasonable efforts
(subject to overall policy considerations of such Lender) to
designate another lending office for any Loans affected by such
event, provided that such designation is made on such terms that
such Lender and its lending office suffer no material economic,
legal or regulatory disadvantage, with the object of avoiding the
consequence of the event giving rise to the operation of any such
Section. Nothing in this Section 2.7 shall affect or postpone
any of the obligations of the Borrowers or the right of any
Lender provided in Section 1.13 (Taxes on Payments), 2.1
(Mandatory Suspension and Conversion of LIBO Rate Loans), 2.2
(Regulatory Changes) or 2.3 (Capital and Reserve Requirements).
PR\79666\1
-20-
ARTICLE 3
CONDITIONS TO EFFECTIVENESS OF AGREEMENT
AND FUNDINGS
3.1 CONDITIONS TO EFFECTIVENESS OF AGREEMENT AND INITIAL
FUNDING. The effectiveness of this Agreement and the obligation
of the Lenders to make the initial Loans hereunder are subject to
the fulfillment of the following conditions on or before December
31, 1997, (unless such date is extended in writing by the
Required Lenders in their sole discretion), in each case to the
satisfaction of each Lender.
(a) Secretary's Certificates. The Borrowers shall
have delivered, or caused to be delivered, a certificate of the
Secretary or an Assistant Secretary of each of the Borrowers,
with specimen signatures of the authorized signatories to the
Loan Documents, and to which shall be attached copies of the
following: articles or certificate of incorporation, bylaws,
resolutions and, if any, shareholder agreements.
(b) Good Standing Certificates. The Borrowers shall
have delivered, or caused to be delivered, a good standing or
subsistence certificate, as the case may be, issued as of a
recent date with respect to each Borrower, (i) issued by the
Secretary of State or other appropriate official of the
jurisdiction of formation of such Person and (ii) issued by the
Secretary of State of the State of California with respect to IUC
and, if any such certificate is dated more than ten (10) days
prior to the Closing Date, a confirmation (which may be provided
by a reputable corporate service) of the information in such
certificate.
(c) The Notes. The Borrowers shall have delivered to
the Administrative Agent for distribution to each of the Lenders
the Notes referred to in Section 1.11.
(d) Lien Searches. The Administrative Agent and
CoreStates shall have received such Uniform Commercial Code, tax,
and judgment lien searches of the Borrowers with respect to such
jurisdictions so the Lender Parties reasonably require, each, in
such form, as of such date and with such content as are
acceptable to the Lenders.
(e) Purchase of NIC. The Borrowers shall have
provided the Lenders with evidence satisfactory to the Lenders
that the Assignment is in full force and effect and J & J and IUC
have acquired (or with funding hereunder, will acquire) the NIC
Note and related rights from CCFC. Borrower's representations
herein, with respect thereto, provided that no Lender has
knowledge to the contrary, shall constitute sufficient evidence
for purposes of the preceding sentence. There shall be no
impediment, legal or otherwise, to the acquisition of the capital
stock of NIC by J & J, IUC or their Affiliates.
PR\79666\1
-21-
(f) Opinions of Counsel. The Borrowers shall have
delivered favorable opinions of counsel, dated as of the Closing
Date, from Blank, Rome, Comisky & McCauley, counsel to the
Borrowers, as to such matters as the Lenders may reasonably
request, in form and substance satisfactory to the Lenders.
(g) Consents and Approvals. All corporate,
governmental, judicial and third party consents and approvals
necessary in connection with this Agreement and the other Loan
Documents, the Assignment and the related transactions shall have
been obtained and, as applicable, become final orders (without
imposition of any conditions that are not acceptable to the
Lenders) and shall remain in full force and effect and certified
copies thereof shall have been delivered to the Lenders.
(h) Financial Statements; Projections.
(i) Financial Statements. The Borrowers shall
have delivered, or caused to be delivered, to the
Lenders prior to the Closing Date a consolidated income
statement of J & J and its consolidated Subsidiaries
for the period ending on September 27, 1997, and a
consolidated balance sheet of J & J and its
consolidated Subsidiaries as of September 27, 1997,
each of which statements shall be (1) in form
acceptable to the Lenders, (2) accompanied by
explanatory notes acceptable to the Lenders, and (3)
certified by the chief financial officer of J & J to
fairly present the financial condition and results of
operations as at the date, or for the period,
indicated.
(ii) Projections. J & J on behalf of the
Borrowers shall have delivered to each Lender
projections respecting the consolidated financial
condition and results of operations of J & J and its
consolidated Subsidiaries for the period through the
end of fiscal year 2002, which projections shall be in
reasonable detail, shall reflect the consummation of
the transactions contemplated hereby and the
Transaction Documents, including the making of the
initial Loans, and shall be accompanied by a written
statement of the assumptions and estimates underlying
such projections.
(i) Officer's Compliance Certificate. J & J, on
behalf of the Borrowers, shall have delivered an Officer's
Compliance Certificate, dated as of the Closing Date, as to the
truth of the representations and warranties herein and in the
other Loan Documents and the absence of any Default (in each
case, both before and after giving effect to the initial Loans).
(j) Repayment of Predecessor Indebtedness. The
Borrowers shall have delivered to the Lenders evidence that,
PR\79666\1
-22-
prior to or substantially simultaneously with the making of the
initial Loans, (i) all Indebtedness of the Borrowers other than
that expressly permitted under Section 7.1 (Indebtedness) below
will be repaid, (ii) all commitments to lend in respect of such
Indebtedness shall have been effectively terminated, and (iii)
all collateral held in connection therewith shall have been
released (or undertakings to release such collateral upon receipt
of specified funds shall have been duly made) and UCC-3
termination statements and all other documents necessary in the
determination of the Lenders to effectively terminate of record
all security interests related to such Indebtedness shall have
been duly executed by the proper parties and shall have been
delivered to the Administrative Agent (or undertakings to do so
upon receipt of specified funds shall have been furnished to the
Administrative Agent).
(k) Insurance. The Borrowers shall have delivered to
the Administrative Agent evidence of the insurance required by
Section 5.8 below.
(l) Fees and Expenses. The Borrowers shall have paid
the fees required to be paid to the Administrative Agent and the
Lenders on or before the Closing Date and the fees and
disbursements of counsel for the Lenders in connection with the
negotiation, preparation, execution and delivery of the Loan
Documents and the making of the initial Loans.
3.2 CONDITIONS TO EACH LOAN.
(a) Conditions. The obligation of the Lenders to make
any Loans, including the initial Loans are subject to fulfillment
of each of the following conditions, in each case, unless
otherwise specified, to the satisfaction of the Administrative
Agent:
(i) Absence of Default. There shall not,
either prior to or after giving effect to each such Loan, exist
an Event of Default or a Default.
(ii) Borrowing Notice. In connection with
any request for Loans, the Administrative Agent shall have
received a borrowing notice as required by Section 1.3 above.
(iii)Truth of Representations. The
representations and warranties of the Borrowers made in this
Agreement and each other Loan Document shall be true and correct
in all material respects as of the date each such Loan is made
(both immediately prior to and after giving effect to said Loan)
as if made on and as of such date.
PR\79666\1
-23-
(iv) No Violations of Law. Neither the
making of, nor use of proceeds of, such Loans shall conflict
with, or cause any Borrower to violate any Law.
(v) Additional Information. The Lenders
shall have received such additional information and documentation
as the Lenders may reasonably request.
(b) Deemed Representation and Warranty. The request
for, and acceptance of, any Loan by any Borrowers shall be deemed
a representation and warranty by the Borrowers that the
conditions specified in clauses (i), (iii) and (iv) of the
preceding paragraph (a) have been satisfied.
PR\79666\1
-24-
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
4.1 REPRESENTATIONS. The Borrowers hereby jointly and
severally represent and warrant to each Lender Party as follows:
(a) Status of Borrowers. Each Borrower is a
corporation duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization. Each
Borrower has the power and authority to own its property and to
transact the business in which it is engaged or presently
proposes to engage. Each Borrower is duly qualified to do
business as a foreign corporation and is in good standing in all
jurisdictions in which the ownership of its properties or the
nature of its activities or both makes such qualification
necessary or advisable, except for any failures to maintain such
qualifications which, individually or in the aggregate, could not
have a Material Adverse Effect. Schedule 4.1(a)hereto sets
forth for each Borrower, as of the Closing Date, the
jurisdiction of its organization. Each direct and indirect
Subsidiary of J & J except for ICEE-Canada, Inc. and ICEE de
Mexico, S.A. De C.V. is a Borrower hereunder and is designated as
such on the signature pages hereto (or, after the Closing Date,
on signature pages of a Joinder Supplement hereto).
(b) Capitalization of Borrowers. The outstanding
equity of each Borrower has been duly authorized and validly
issued. All capital stock is fully paid and nonassessable. J &
J owns directly or indirectly through other Borrowers, all of the
capital stock of each other Borrower. There are no options,
warrants, calls, or similar rights relating to equity of the
Borrowers.
(c) Authorization, Execution and Binding Effect of
Loan Documents. Each Borrower has the power and authority to
execute, deliver, perform, and take all actions contemplated by,
each Loan Document to which it is a party, and all such action
has been duly and validly authorized by all necessary corporate
proceedings on its part. This Agreement and each other Loan
Document has been duly and validly executed and delivered by each
Borrower listed on the signature pages hereto or thereto, as the
case may be. This Agreement and each other Loan Document
constitutes the legal, valid and binding obligation of each
Borrower purporting to be a party hereto or thereto, as the case
may be, enforceable against such Person in accordance with its
terms, except as the enforceability hereof of thereof may be
limited by bankruptcy, insolvency or other similar laws of
general application affecting the enforcement of creditors'
rights or by general principles of equity limiting the
availability of equitable remedies.
PR\79666\1
-25-
(d) Governmental Approvals and Filings; Absence of
Conflicts. No approval, order, consent, authorization, exemption
or other action by, or filing, recording or registration with, or
notice to, any Governmental Authority or other Person is
necessary in connection with, the execution and delivery of any
Loan Document by any Borrower, or in connection with the
performance of the terms hereof or thereof by such Person. No
Borrower is subject to any Law which purports to restrict or
regulate its ability to borrow money, obtain credit or provide a
guarantee or other form of credit support as a consequence of the
nature of the business conducted by such Borrower. Neither the
execution and delivery of this Agreement or any other Loan
Document by any Borrower, nor the performance of or compliance
with the terms and conditions hereof or thereof (including the
execution, delivery and performance of the Transaction Documents)
by any Borrower does or will
(i) violate or conflict with any Law or any
judgment, decree, or order of a court or Governmental
Authority or any settlement agreement,
(ii) violate, conflict with or result in a breach
of any term or condition of, or constitute a default
under, or cause an acceleration of, or result in the
creation or imposition of any Lien upon any of property
of any Borrower under or in connection with,
(x) its articles or certificate of
incorporation or, bylaws, (or other constituent
documents),
(y) any agreement or instrument creating,
evidencing or securing any Indebtedness to which
any Borrower is a party or by which it or any of
its properties (now owned or hereafter acquired)
may be subject or bound, or
(z) any other agreement or instrument or
arrangement to which it is a party or by which it
or any of its properties (now owned or hereafter
acquired) may be subject or bound,
except, in the case of the foregoing clauses (y) and
(z), for matters that, individually or in the
aggregate, could not have a Material Adverse Effect, or
(iii) result in a Limitation on any Licenses
applicable to the operations or properties of any
Borrower.
No approval, order, consent of, authorization, exemption or other
action by, or filing, recording or registration with, or notice
to, any Governmental Authority or other Person is necessary in
connection with the transactions contemplated in the Transaction
Documents except such consents as have been obtained and are in
full force and effect.
PR\79666\1
-26-
(e) Financial Statements. J & J has heretofore
furnished to the Administrative Agent and each Lender
consolidated balance sheets of J & J and its consolidated
Subsidiaries as of September 28, 1996, and the related
consolidated statements of income, cash flows and changes in
stockholders' equity for the fiscal years then ended, as examined
and reported on by independent certified public accountants for J
& J, who delivered an unqualified opinion in respect thereof.
Such financial statements (including the notes thereto) present
fairly the financial condition of J & J and its consolidated
Subsidiaries as of the end of each such fiscal year and the
results of their operations and their cash flows for the fiscal
years then ended, all in conformity with GAAP. J & J has
heretofore furnished to the Administrative Agent and each Lender
interim consolidated balance sheets of J & J and its consolidated
Subsidiaries as of the first three fiscal quarters of the fiscal
year beginning September 29, 1996, together with the related
consolidated statements of income, cash flows and changes in
stockholders' equity for the applicable fiscal periods ending on
each such date. Such financial statements (including the notes
thereto), as well as those financial statements delivered
pursuant to paragraph (h) of Section 3.1 above, present fairly
the financial condition of J & J and its consolidated
Subsidiaries as of the date specified and the results of their
operations and their cash flows for the fiscal periods specified,
all in conformity with GAAP, subject to normal and recurring
year-end audit adjustments, except that such financial statements
do not contain all of the footnote disclosures required by GAAP.
There are no material liabilities of the Borrowers except as
disclosed on such financial statements. Schedule 7.1 hereto sets
forth, as of the Closing Date, all Indebtedness (and commitments
for Indebtedness) of the Borrowers.
(f) Projections. The projections delivered pursuant
to paragraph (h) of Section 3.1 above and the assumptions and
estimates referred to therein, as of the Closing Date, are
reasonable, are made in good faith, are consistent with the Loan
Documents and represent the Borrowers' best judgment as to such
matters. Nothing has come to the attention of any Borrower which
would lead such Borrower to believe that such projections will
not be attained or exceeded provided, however, that nothing
contained in this paragraph (f) shall constitute a representation
or warranty that such future financial performance or results of
operations will in fact be achieved.
(g) Absence of Material Adverse Change. Since
September 28, 1996, there has been no material adverse change in
the business, operations, condition (financial or otherwise),
properties or prospects of the Borrowers taken as a whole or the
industry served by the Borrowers.
(h) Title to Property. Each Borrower has good and
marketable title to all property owned or purported to be owned
by it, including but not limited to all property reflected in the
PR\79666\1
-27-
most recent balance sheets delivered to the Lenders pursuant to
this Agreement subject to no Liens except Permitted Liens.
Schedule 7.2 hereto sets forth, as of the Closing Date, all Liens
on property of the Borrowers.
(i) Solvency. The present fair saleable value of the
assets of the Borrowers, taken as a whole, after giving effect to
all the transactions contemplated by the Loan Documents and the
funding of the Loans hereunder exceeds the amount that will be
required to be paid on or in respect of the existing debts and
other liabilities (including contingent liabilities) of
Borrowers, taken as a whole, as they mature. J & J does not
intend to, nor does J & J believe that it will, incur debts
beyond its ability to pay such debts as they mature (taking into
account the timing and amounts of cash to be received by J & J,
and of amounts to be payable on or in respect of debt of J & J).
The property of each Borrower does not constitute unreasonably
small capital for such Borrower to carry out its business as now
conducted and as proposed to be conducted including the capital
needs of such Borrower. The cash available to each Borrower
after taking into account all other anticipated uses of the cash
of such Borrower, is anticipated to be sufficient to pay all such
amounts on or in respect of debt of such Borrower when such
amounts are required to be paid.
(j) Accurate and Complete Disclosure. The information
heretofore, contemporaneously or hereafter provided in writing by
or on behalf of any Borrower to any Lender Party pursuant to or
in connection with this Agreement or any other Loan Document is
or will be (as the case may be) true and accurate in all material
respects on the date as of which such information is dated (or,
if not dated, when received by such Lender Party) and does not or
will not (as the case may be) omit to state any material fact
necessary to make such information not misleading at such time in
light of the circumstances in which it was provided.
(k) Legal and Administrative Proceedings. There is no
action, suit, litigation or proceeding pending, or to the
knowledge of the Borrowers, threatened nor, to the knowledge of
the Borrowers, is there any investigation pending or threatened,
in any court or before any arbitrator or Governmental Authority
respecting or relating to any Borrowers (or any officer or
director thereof) or any property of any Borrowers that,
individually or in the aggregate, (i) could have a material
adverse effect on the business, condition (financial or
otherwise), operations, properties or prospects of the Borrowers
taken as a whole or (ii) could materially adversely affect the
Lenders' rights and remedies hereunder or under the other Loan
Documents, this Agreement or other Loan Documents or the ability
of the Borrowers to perform their obligations hereunder or
thereunder.
(l) Absence of Violations and Conflicts. No Borrower
is in violation of, in default under, or is subject to any
PR\79666\1
-28-
contingent liability on account of any violation of or conflict
with: (i) any Law; (ii) its articles or certificate of
incorporation or bylaws; or (iii) any financing agreement or
other instrument or arrangement to which it is a party or by
which it or any of its properties (now owned or hereafter
acquired) may be subject or bound, except, with respect to
clauses (i) or (iii) above for matters that, individually or in
the aggregate, could not have a Material Adverse Effect.
(m) Operations.
(i) Except where the failure to possess the
same, either individually or in the aggregate, could not have a
Material Adverse Effect, each Borrower possesses all Licenses
necessary to operate its business as now operated and as
presently proposed to be operated. No Borrower is in material
violation of the terms of its Licenses.
(ii) Except for Limitations which,
individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect, there is no
threatened or pending Limitation of any material License relating
to the operation of any of Borrowers' businesses.
(iii)No Borrower is subject to any claim,
litigation, proceeding or other action or, to any Borrower's
knowledge, investigation relating to a claim or action by any
Governmental Authority.
(n) Properties. Schedule 4.1(n) identifies all
properties owned or leased by any Borrower as of the Closing
Date. As of the Closing Date, all leases relating to such leased
properties are in full force and effect subject to no material
default. Such leases comply with the provisions of Section 7.7
below.
(o) Intellectual Property. Each Borrower owns, or is
licensed or otherwise has the right to use, all the patents,
trademarks, service marks, names (trade, service, fictitious or
otherwise), copyrights, technology (including computer programs
and software), processes, data bases and other rights
(collectively, "intellectual property"), free from burdensome
restrictions, necessary to own and operate its properties and to
carry on its business as presently conducted and presently
planned to be conducted without conflict with the rights of
others. No Borrower is in material violation of the rights of
others with respect to any intellectual property.
(p) Employee Benefits/ERISA.
(i) The Borrowers and the members of their
Controlled Groups maintain only those Defined Benefit
Pension Plans, Defined Contribution Plans and other
Plans listed on Schedule 4.1(p) attached hereto.
PR\79666\1
-29-
Neither the Borrowers nor any members of their
Controlled Groups contribute to any Multiemployer
Plans.
(ii) To the extent the Borrowers or any
members of their Controlled Groups maintain then, each
Defined Benefit Pension Plan and Defined Contribution
Plan, as most recently amended, including amendments to
any trust agreement, group annuity, or insurance
contracts, or other governing instrument, is the
subject of a favorable determination letter by the
Internal Revenue Service with respect to its
qualification under S401(a) of the Code.
(iii) All Plans comply, both in form and in
operation, with the requirements of the Code and ERISA.
(iv) There is not now, and has not been, any
material violation of the Code or ERISA with respect to
the filing of applicable reports, documents, and
notices regarding any Plan with the Secretary of Labor,
the Secretary of the Treasury, the PBGC or any other
governmental entity or the furnishing of such documents
to the participants or beneficiaries of any Plan.
Borrowers have furnished to the Lenders copies of the
most recent annual report, audited financial
statements, and other reports filed with the Secretary
of Labor, the Secretary of the Treasury, the PBGC or
any other governmental entity with respect to each
Plan.
(v) To the extent that any Borrower or any
member of their Controlled Group maintains them, all
Pension Plans, as of the date hereof, meet the minimum
funding standards of S412 of the Code and S302 of ERISA
without regard to any funding waiver. Borrowers and
the members of their Controlled Group have, as of the
date hereof, made all contributions or payments to or
under Pension Plans, if any, required by the terms of
any such Plan or any contract or agreement.
(vi) No material liability to the PBGC has
been, or is expected by any Borrower or any member of
its Controlled Group to be, incurred by the Borrower or
any member of its Controlled Group.
(vii) No Defined Benefit Pension Plan if any
has any Amount of Unfunded Benefit Liabilities except
as listed on Schedule 4.1(p) which, in the aggregate,
do not exceed $100,000.00.
(viii) No trust was established in
connection with any Defined Benefit Pension Plan
pursuant to S4049 of ERISA (as in effect on December
PR\79666\1
-30-
17, 1987) and no liabilities (whether or not such
liability is being litigated) have been asserted
against any borrower or any member of its Controlled
Group in connection with any such Defined Benefit
Pension Plan by the PBGC or by a trustee appointed
pursuant to S4042(b) or (c) of ERISA, and no lien has
been attached and no person has threatened to attach a
lien on any property of any Borrower or any member of
its Controlled Group as a result of any failure to
comply with the Code or ERISA.
(ix) No Prohibited Transaction has occurred
with respect to any Plan.
(x) No Reportable Event has occurred with
respect to any Defined Benefit Plan.
(xi) No Borrower or any member of its
Controlled Group has any unfunded liabilities of
unfunded and uninsured "employee welfare benefit plans"
(as defined in S3(1) of ERISA).
(xii) There is not now, and has not been, any
COBRA Violation with respect to any Plan to which such
continuation coverage requirements apply which has a
material adverse effect, directly or indirectly, on the
financial condition of any of the Borrowers.
(xiii) Borrowers and the members of their
Controlled Group have not established any irrevocable
trusts the assets of which remain subject to the
general creditors of Borrowers and/or members of their
Controlled Group (sometimes referred to as "rabbi
trusts").
(q) Environmental Matters.
(i) Each Borrower and each of its respective
Environmental Affiliates is and has been, in full
compliance with all applicable Environmental Laws,
except for matters which, individually or in the
aggregate, could not have a Material Adverse Effect.
There are no circumstances that may prevent or
interfere with such full compliance now or in the
future.
(ii) Each Borrower and each of its respective
Environmental Affiliates have all Environmental
Approvals necessary or desirable for the ownership and
operation of their respective properties, facilities
and businesses as presently owned and operated and as
presently proposed to be owned and operated, in the
future, except for matters which, individually or in
PR\79666\1
-31-
the aggregate, could not have a Material Adverse
Effect.
(iii) There is no Environmental Claim pending
or to the knowledge of any Borrower after due inquiry,
threatened, and there are no past or present acts,
omissions, events or circumstances (including but not
limited to any dumping, leaching, deposition, removal,
abandonment, escape, emission, discharge or release of
any Environmental Concern Material at, on or under any
facility or property now or previously owned, operated
or leased by any Borrower or any Environmental
Affiliates of Borrowers) that could form the basis of
any Environmental Claim against any Borrower or any
such Environmental Affiliates, except for matters
which, if adversely decided, individually or in the
aggregate, could not have a Material Adverse Effect.
(iv) No facility or property now or
previously owned, operated or leased by any Borrower or
any of their respective Environmental Affiliates is an
Environmental Cleanup Site. No Borrower and none of
their respective Environmental Affiliates has directly
transported or disposed of or arranged for the
transportation or disposal of any Environmental Concern
Materials to any Environmental Cleanup Site. No Lien
exists, and, to the Borrowers' knowledge after due
inquiry, no condition exists which could result in the
filing of a Lien, against any property of any Borrower
or any Subsidiary of any Borrower or any of their
respective Environmental Affiliates, under any
Environmental Law.
(r) Margin Regulations. No proceeds of any Loan
hereunder will be used for the purpose of purchasing or carrying
any "margin stock," as such term is used in Regulations G and U
of the Board of Governors of the Federal Reserve System, as
amended from time to time, or to extend credit to others for the
purpose of purchasing or carrying any "margin stock". Neither
the making of any Loan nor any use of proceeds of the foregoing
will violate or conflict with the provisions of Regulation G, T,
U or X of the Board of Governors of the Federal Reserve System,
as amended from time to time.
(s) Regulation O. No director, executive officer or
principal shareholder of any Borrower is a "director," "executive
officer" or "principal shareholder" of any Lender, as such terms
are used in Regulation O of the Board of Governors of the Federal
Reserve System, as amended.
(t) Certain Documents and Transactions. Each of the
Transaction Documents are in full force and effect and no
amendments, modifications or supplements have been made to any
such documents as the same were delivered to the Lenders pursuant
PR\79666\1
-32-
to Article 3 above except such amendments, modifications or
supplements to Transaction Documents as could not reasonably be
expected to have an adverse effect on any Borrower (including the
condition (financial or otherwise), properties or prospects of
such Borrower), the Loan Documents or any Lender Parties. There
exists no default under any such agreements. The Assignment is
in full force and effect and, upon the initial funding of the
Loans in accordance with the wire transfer instructions delivered
by the Borrowers to the Administrative Agent upon the execution
hereof, IUC will have acquired the NIC Note and related rights
from CCFC. There are no impediments, legal or otherwise, to the
acquisition of the capital stock of NIC by J & J, IUC or their
Affiliates.
(u) Labor Matters. There are no existing, or, to the
best of Borrowers' knowledge, threatened or contemplated,
strikes, slowdowns, picketing or work stoppages by any employees
against any Borrower, any lockouts by any Borrower of any of its
employees or any labor trouble or other occurrence, event or
condition of a similar character which individually or in the
aggregate, could have a Material Adverse Effect.
4.2 REPRESENTATIONS AND WARRANTIES ABSOLUTE. The
representations and warranties of the Borrowers set forth in this
Article 4 are unaffected by any prior or subsequent investigation
by, or knowledge of, the Administrative Agent or any Lender.
PR\79666\1
-33-
ARTICLE 5
AFFIRMATIVE COVENANTS
So long as any Loan Obligation shall remain unpaid or
any Lender shall have any Commitment under this Agreement, each
of the Borrowers shall comply with the following covenants.
5.1 REPORTING REQUIREMENTS.
(a) Annual Financial Statements. As soon as
practicable, and in any event within 90 days after the close of
each fiscal year of J & J, J & J (on behalf of the Borrowers)
shall furnish to the Administrative Agent and each Lender,
audited consolidated and consolidating statements of income, cash
flows and changes in stockholders' equity of the Borrowers for
such fiscal year and a consolidated and consolidating balance
sheet of the Borrowers as of the close of such fiscal year,
setting forth the appropriate footnotes, all in reasonable
detail, setting forth in comparative form the corresponding
figures for the preceding fiscal year. Such financial statements
shall be accompanied by an unqualified opinion in form and
substance satisfactory to the Lenders of independent certified
public accountants of recognized national standing selected by
the Borrowers and satisfactory to the Lenders.
(b) Quarterly Financial Statements. As soon as
practicable, and in any event within 45 days after the close of
each fiscal quarter of each fiscal year of J & J, J & J, on
behalf of the Borrowers, shall furnish to the Administrative
Agent and each Lender, consolidated statements of income, cash
flows and changes in stockholders' equity of the Borrowers for
such fiscal quarter and the applicable year to date period, and a
consolidated balance sheet of the Borrowers as of the close of
such fiscal quarter, all in reasonable detail, setting forth in
comparative form the corresponding figures for the same periods
or as of the same date during the preceding fiscal year (except
for the balance sheets, which shall set forth in comparative form
the corresponding balance sheets as of the prior fiscal year
end). Such financial statements shall be certified by the chief
financial officer or other Responsible Officer of J & J, as
presenting fairly the financial position of the subject entities
as of the end of such fiscal quarter and year-to-date period, and
the results of their operations and their cash flows and changes
in stockholders' equity for such fiscal quarter and year-to-date
period, in conformity with GAAP, subject to normal and recurring
year-end audit adjustments.
(c) Quarterly Compliance Certificates. J & J, on
behalf of the Borrowers, shall deliver to the Administrative
Agent and each Lender, an Officer's Compliance Certificate
concurrently with the delivery of the financial statements
referred to in paragraph (a) of this Section 5.1 (with respect to
PR\79666\1
-34-
the fiscal year) and paragraph (b) of this Section 5.1 (with
respect to the first three fiscal quarters). Each such Officer's
Compliance Certificate shall include among other things referred
to therein the calculations necessary to demonstrate the
Borrowers' compliance with the covenants set forth in Article 6
hereof.
(d) Other Information To Be Delivered Annually. J &
J, on behalf of the Borrowers, shall deliver to the
Administrative Agent and each Lender, the following: (i)
annually, within one hundred twenty (120) days of the end of J &
J's fiscal year, an accountants' management letter respecting J &
J and its Subsidiaries, provided by independent certified public
accountants satisfactory to the Administrative Agent, and (ii)
annually, no later than ninety (90) days prior to the
commencement of each fiscal year of J & J's, an annual budget
respecting J & J and its Subsidiaries, setting forth in
reasonable detail, expected sources and uses of funds, for the
fiscal year then beginning in form and substance satisfactory to
the Administrative Agent.
(e) SEC Filings and Other Disclosure. Promptly upon
their becoming available to any Borrower but no later than ten
Business Days after the same are filed with the Securities
Exchange Commission or any securities exchange, J & J, on behalf
of the Borrowers, shall deliver to the Administrative Agent and
each Lender, a copy of (i) all regular or special reports,
registration statements and amendments to the foregoing which any
Borrower or any of its Affiliates shall file with the Securities
and Exchange Commission or any securities exchange, (ii) all
reports, proxy statements, financial statements and other
information distributed by any Borrower or any of its Affiliates
to its stockholders, bondholders or the financial community
generally, and (iii) all accountants' management letters (not
otherwise delivered pursuant to the preceding paragraph (d)) and
all other reports submitted by accountants in connection with any
audit of any Borrower.
(f) Notice of Certain Events. Promptly upon any
Borrower becoming aware of any of the following, such Borrower or
J & J, on behalf of the Borrowers, shall give the Administrative
Agent notice thereof, together with a written statement setting
forth the details thereof and any action with respect thereto
taken or proposed to be taken by any Borrower:
(i) Loss of Licenses. Any actual Limitation
(other than in the ordinary course of business) or any
threatened Limitation (to the extent that it
individually or in the aggregate with all other actual
or threatened Limitations is material) of any License
relating to the operation of any Borrower's business;
(ii) Default. Any Event of Default or Default;
PR\79666\1
-35-
(iii) Material Adverse Change. Any material
adverse change in the business, operations or condition
(financial or otherwise), or prospects of any Borrower;
(iv) Litigation. Any pending or threatened
action, suit, proceeding or investigation by or before
any Governmental Authority against or affecting any
Borrower (or any officer or director thereof) or any
property of any Borrower which, if determined adversely
could have a Material Adverse Effect;
(v) Breach or Termination of Certain Agreements.
Any breach, claimed breach, termination or purported
or threatened termination (including a copy of any
notice of termination) of any Transaction Document
which could have a Material Adverse Effect.
(vi) ERISA. To the extent applicable to the
Borrowers or any member of their Controlled Group,
(A) any taxes, penalties, interest charges
and other financial obligations in excess of
$100,000.00 that have been assessed or otherwise
imposed, or which any Borrower has reason to
believe may be assessed or otherwise imposed in
excess of $100,000.00, against any Borrower or any
member of its Controlled Group by the Internal
Revenue Service, the PBGC, the Department of Labor
or any other governmental entity with respect to
any Plan or Multiemployer Plan;
(B) any application for a waiver by a
Borrower or any member of its Controlled Group of
the minimum funding standard under S412 of the
Code with respect to a Pension Plan;
(C) the adoption of any Plan, including but
not limited to a Defined Benefit Pension Plan, or
any obligation to contribute to any Multiemployer
Plan by a Borrower or any member of its Controlled
Group;
(D) any Prohibited Transaction with respect
to a Plan.
(E) (1) that any Reportable Event has or
will occur with respect to any Defined Benefit
Pension Plan maintained by any Borrower or any
member of its Controlled Group, (2) that any
Defined Benefit Pension Plan maintained by any
Borrower or any member of its Controlled Group is
to be terminated in "distress termination" (within
the meaning of S4041(c) of ERISA), (3) that the
PBGC has instituted or will institute proceedings
PR\79666\1
-36-
under Title IV of ERISA to terminate any Defined
Benefit Pension Plan maintained by any Borrower or
any member of its Controlled Group, (4) that any
Borrower has incurred Withdrawal Liability from a
Multiemployer Plan maintained by it or any member
of its Controlled Group, (5) that any
Multiemployer Plan to which any Borrower or any
member of its Controlled Group has made
contributions is or will be in Reorganization, or
(6) that any other condition exists with respect
to a Defined Benefit Pension Plan or Multiemployer
Plan which presents a material risk of termination
of any such Plan, Borrowers will furnish a
statement to the Lenders setting forth the details
of such Reportable Event, distress termination,
termination proceedings, Withdrawal Liability,
Reorganization or condition, and the action that
Borrowers propose to take with respect thereto,
together with a copy of any notice of such
Reportable Event or distress termination given to
the PBGC, or a copy of any notice of termination
proceedings, Withdrawal Liability or
Reorganization received by such Borrower or any
member of its Controlled Group.
(F) any default by Borrower or any member of
its Controlled Group (as defined in S4219(c)(5) of
ERISA) with respect to payments to a Multiemployer
Plan required by reason of its withdrawal (as
defined in S4203 or S4205 of ERISA).
(G) any action brought against Borrower or
any member of its Controlled Group under S502 of
ERISA with respect to its failure to comply with
S519 of ERISA.
(vii)Environmental. Any Environmental Claim
pending or threatened against any Borrower or any of
its Environmental Affiliates, or any past or present
acts, omissions, events or circumstances (including but
not limited to any dumping, leaching, deposition,
removal, abandonment, escape, emission, discharge or
release of any Environmental Concern Material at, on or
under any facility or property now or previously owned,
operated or leased by any Borrower or any of its
Environmental Affiliates) that could form the basis of
such Environmental Claim.
(g) Other ERISA Information. The Borrowers shall
deliver to the Administrative Agent, copies of the following:
PR\79666\1
-37-
(A) Promptly after the filing thereof with
the Secretary of Labor, the Secretary of the
Treasury, the PBGC or any other governmental
entity, copies of each annual report, each audited
financial statement and any other report so filed
with respect to each Plan.
(B) As soon as possible (and in any event
within five days) after the receipt by any
Borrower or any member of its Controlled Group of
a demand letter from the PBGC notifying any
Borrower or any member of its Controlled Group of
the final decision finding liability and the date
by which such liability must be paid, Borrowers
will furnish to the Lenders a copy of such letter
together with a statement to the Lenders setting
forth the action which Borrowers propose to take
with respect thereto.
(C) Borrowers will furnish to the Lenders as
soon as possible after receipt thereof a copy of
any notice that any Borrower or any member of its
Controlled Group receives from the PBGC, the
Internal Revenue Service, the Department of Labor
or any other governmental entity or the sponsor of
any Multiemployer Plan that sets forth or proposes
any action to be taken or determination made by
the PBGC, the Internal Revenue Service, the
Department of Labor or any other governmental
entity or the sponsor of any Multiemployer Plan
with respect to any Plan.
(h) Other Information. In addition, the Borrowers
will promptly furnish to the Administrative Agent such other
information as any Lender Party, through the Administrative
Agent, may reasonably request including information submitted by
the Borrowers to any Governmental Authority, and the
Administrative Agent will furnish such information to the
requesting Lender Party.
5.2 MAINTENANCE OF EXISTENCE. Each Borrower shall preserve
and maintain its corporate existence and good standing in the
jurisdiction of its organization. Each Borrower shall qualify
and remain qualified as a foreign corporation in each
jurisdiction in which such qualification is required. Nothing
contained in this Section 5.2, however, shall prevent any
Borrower from merging into any other Borrower as long as such
transaction does not result in the dissolution of J & J.
PR\79666\1
-38-
5.3 CONDUCT OF BUSINESS AND MAINTENANCE OF LICENSES AND
OTHER PROPERTY.
(a) Type of Business. Each Borrower shall continue to
engage in the business of the same general type as conducted by
the Borrowers on the Closing Date and not engage in any other
type of business without the consent of the Required Lenders.
Each Borrower shall maintain in effect all Licenses necessary or
appropriate to operate its businesses.
(b) Maintenance of Property. Each Borrower shall
maintain, keep and preserve all of its property necessary or
useful in the proper conduct of its business in good working
order and condition, ordinary wear and tear excepted. Without
limiting the generality of the foregoing, each Borrower shall
maintain in full force and effect each lease and other material
agreement used or useful in its business, subject to no material
default except where the loss of, or default under, such lease or
other agreement (i) could not individually or in the aggregate
reasonably be expected to have a Material Adverse Effect or (ii)
is not otherwise prohibited by the terms of this Agreement.
5.4 MAINTENANCE OF RECORDS; FISCAL YEAR. Each Borrower
shall keep adequate records and books of account, in which
complete entries will be made in accordance with historical
practice and GAAP, reflecting all financial transactions of the
Borrowers. Each Borrower shall maintain a fiscal year end of the
last Saturday in September.
5.5 COMPLIANCE WITH LAWS. Each Borrower shall comply (and
maintain procedures to assure compliance) in all material
respects with all applicable Laws (including Environmental Laws)
and all judgments, decrees or orders of any court or Governmental
Authority and all settlement agreements.
5.6 ERISA.
(a) Each Borrower will, and will cause each member of
its Controlled Group, to comply in all material respects with the
provisions of ERISA and the Code with respect to any Plan both in
form and in operation.
(b) Each Borrower will cause to be made all
contributions required to avoid any Accumulated Funding
Deficiency, whether or not waived, with respect to any Pension
Plan.
PR\79666\1
-39-
(c) No Borrower will adopt or permit the adoption by
any member of its Controlled Group of any Defined Benefit Pension
Plan which would result in any Amount of Unfunded Benefit
Liabilities in excess of $100,000.00.
(d) No Borrower will acquire, or permit the
acquisition by any member of its Controlled Group of, any trade
or business which has incurred either directly or indirectly any
Amount of Unfunded Benefit Liabilities under any Defined Benefit
Pension Plan in excess of $100,000.00.
(e) The Borrowers will not permit with respect to any
Plan, any Prohibited Transaction or Prohibited Transactions under
ERISA or the Code resulting in liability of any Borrower or any
member of its Controlled Group which together with any other
liabilities subject to this paragraph (e) would in the aggregate
be in excess of $100,000.00.
(f) No Borrower will withdraw, or permit any member of
its Controlled Group to withdraw, from any Multiemployer Plan to
which any of them may hereafter contribute if the Withdrawal
Liability which would thereupon be incurred would have a Material
Adverse Effect.
(g) No Borrower will permit any unfunded liabilities
of unfunded and uninsured "employee welfare benefit plans" (as
defined in S3(1) of ERISA) of any Borrower and of any member of
its Controlled Group in excess of $100,000.00 in the aggregate
with all other liabilities subject to this paragraph (g).
(h) No Borrower will, or will permit any member of its
Controlled Group to, cause or suffer to exist a COBRA Violation
with respect to any Plan to which such continuation coverage
requirements apply if the violation(s) could result in a
liability in excess of $100,000.00 in the aggregate.
5.7 RIGHT OF INSPECTION. Each Borrower shall, at any
reasonable time and from time to time, and upon reasonable
advance notice (but no advance notice shall be required if a
Default or an Event of Default shall then exist), permit the
Administrative Agent or any Lender or any agent or representative
thereof, to examine and make copies and abstracts from the
records and books of account of, and visit and inspect the
properties of, any Borrower, and to discuss the affairs, finances
and accounts of such Borrower with any of its officers, directors
and independent accountants.
5.8 INSURANCE. Each Borrower shall maintain with
financially sound and reputable insurers, insurance with respect
to its properties and business and against such liabilities,
PR\79666\1
-40-
casualties and contingencies and of such types and in such
amounts as are customary in the case of Persons engaged in the
same or similar businesses or having similar properties similarly
situated, including insurance covering its respective properties,
buildings, machinery, equipment, tools, furniture, fixtures and
operations, and public liability, as well as business
interruption. The Borrowers shall have the Administrative Agent
named to receive certificates evidencing such insurance annually
at least thirty days prior to the anniversary date of such
insurance policies and any other time requested by the
Administrative Agent.
5.9 PAYMENT OF TAXES AND OTHER CHARGES. Each Borrower
shall
(a) on or prior to the date on which penalties attach
thereto and file all tax returns, pay all taxes, assessments and
other governmental charges imposed upon it or any of its
properties; and
(b) on or prior to the date when due, pay all lawful
claims of materialmen, mechanics, carriers, warehousemen,
landlords and other like Persons and all other lawful claims
which, in each case if unpaid, might result in the creation of a
Lien upon any of its properties, provided that unless and until
foreclosure, distraint, levy, sale or similar proceedings shall
have been commenced, such Borrower need not pay or discharge any
such tax, assessment, charge or claim so long as (x) the validity
thereof is being contested in good faith and by appropriate
proceedings diligently conducted and (y) such reserves or other
appropriate provisions as may be required by GAAP shall have been
made therefor.
5.10 SUBSIDIARIES TO BE BORROWERS.
Each Borrower shall cause all of its Subsidiaries at
all times to be Borrowers hereunder (by signing Joinder
Supplements hereto, executing Notes or allonges thereto and
taking such other action as the Administrative Agent may
reasonably request). Without limiting the generality of the
foregoing, when the Borrowers are required, in connection with an
Acquisition or otherwise, to cause one or more (direct or
indirect) Subsidiaries of J & J (each, a "Joining Subsidiary") to
become Borrowers hereunder, then the Borrowers and each such
Joining Subsidiary shall take the actions set forth on Schedule
5.10, in the case of the formation of a new Subsidiary, promptly
upon such formation, and in the case of the Acquisition of an
entity which shall become a Subsidiary, no later than the date of
the consummation of the relevant Acquisition.
PR\79666\1
-41-
5.11 TRANSACTIONS WITH AFFILIATES. Each Borrower shall
effect all transactions with Affiliates (including with ICEE-
Canada, Inc. and ICEE de Mexico, S.A. de C.V., but excluding
transactions with other Borrowers) on a basis at least as
favorable to such Borrower as would at the time be obtainable for
a comparable transaction on an arm's length dealing with an
unrelated third party.
5.12 CAPITAL STOCK. All of the capital stock of each
Borrower (other than J & J) shall be owned at all times, directly
or indirectly, by J & J, subject to no Liens.
5.13 USE OF PROCEEDS. The Borrowers will apply the proceeds
of the Term Loans only (i) to acquire the NIC Note and all of the
capital stock of NIC and (ii) to pay off certain existing
Indebtedness. The Borrowers will apply the proceeds of the RC
Loans only (i) to fund working capital and Capital Expenditure
needs, subject to the other limitations set forth in this
Agreement, and (ii) to fund future Acquisitions and the
transaction costs associated therewith.
PR\79666\1
-42-
ARTICLE 6
FINANCIAL COVENANTS
6.1 CERTAIN FINANCIAL COVENANTS. So long as any Loan
Obligations shall remain unpaid or any Lender has any Commitment
under this Agreement, the Borrowers shall comply with the
following financial covenants.
(a) Fixed Charge Coverage Ratio. The Fixed Charge
Coverage Ratio shall be not less than 1.3 at any time.
(b) Consolidated Net Worth. Tangible Net Worth of the
Borrowers, on a consolidated basis, at any date of determination
after the Agreement Date shall be not less than the sum of
(i) The greater of (a) Fifty Five Million Dollars
($55,000,000.00), or (b) Seventy Nine Million
Dollars ($79,000,000.00) minus the value of the
intangible assets added by reason of the
acquisition of the capital stock of NIC,
plus
(ii) 50% of the cumulative amount of Net Income
(which shall not be reduced by the amount of any
net loss for any fiscal quarter) of the Borrowers,
on a consolidated basis, for the period commencing
on the first day of the fiscal quarter in which
the Agreement Date occurs through the last day of
the fiscal quarter ending on, or most recently
prior to, such date of determination.
(c) Total Funded Indebtedness/EBITDA. The Total
Funded Indebtedness/EBITDA shall be not greater than the ratios
set forth below during the periods indicated below:
Period Ratio
Closing Date through June 26, 1999 3.50
June 27, 1999 and thereafter 3.00
(d) Leverage Ratio. The Leverage Ratio shall be not
greater than 2.0 at any time.
6.2 CALCULATION OF FINANCIAL COVENANTS. The financial
covenants set forth in this Article 6 shall be maintained
continuously and shall be tested at the end of each fiscal
quarter and at such other times as may be required by the terms
of this Agreement.
PR\79666\1
-43-
ARTICLE 7
NEGATIVE COVENANTS
So long as any Loan Obligations shall remain unpaid or any
Lender shall have any Commitment under this Agreement, each of
the Borrowers shall comply with the following covenants.
7.1 INDEBTEDNESS. No Borrower shall at any time, create,
incur, assume or suffer to exist any Indebtedness (including any
Guaranties, Capitalized Leases or Assumed Indebtedness), except:
(a) Indebtedness to the Lender Parties pursuant to
this Agreement and the other Loan Documents;
(b) Indebtedness constituting intercompany (i.e.
inter-Borrower) loans and advances;
(c) Obligations of J & J under Interest Rate Hedging
Agreements;
(d) Indebtedness existing on the Closing Date
acceptable to the Lenders and described on Schedule 7.1 hereto,
which sets forth certain Indebtedness in a principal amount not
exceeding $5,100,000.00; and any extensions, renewals,
refinancing of the same so long as such extensions, renewals and
refinancing (i) are in a principal amount no greater than the
amount the Indebtedness so extended, renewed or refinanced, (ii)
have maturity dates (and amortization schedules) no earlier than
the debt being refinanced, (iii) are incurred pursuant to
agreements or instruments which do not prohibit the Indebtedness
created pursuant to the Loan Documents or otherwise conflict with
the terms of the Loan Documents or contain terms and conditions
which are more onerous than the terms and conditions in the
existing agreements and instruments, and (iv) are not made at a
time that a Default or Event of Default has occurred and is
continuing or would be caused thereby;
(e) Guaranties and similar contingent obligations
relating to underlying Indebtedness not exceeding $300,000.00 in
any fiscal year;
(f) Indebtedness owed to sellers or Assumed
Indebtedness in each case, incurred in connection with
Acquisitions otherwise permitted under Section 7.4 hereof,
provided that such Indebtedness not exceed in the aggregate
$3,000,000.00 during the term of this Agreement;
(g) Purchase money Indebtedness not otherwise
permitted by clause (f) above not exceeding $1,000,000.00 in the
aggregate during the term of this Agreement; and
PR\79666\1
-44-
(h) Indebtedness, not otherwise permitted by clauses
(a) through (g), not exceeding $1,000,000.00 incurred in any one
fiscal year.
7.2 LIENS. No Borrower shall at any time create, incur,
assume or suffer to exist any Lien on any of its assets (now
owned or hereafter acquired), except for the following
("Permitted Liens"):
(a) Liens acceptable to the Lenders and existing on
the Closing Date securing obligations existing on the Closing
Date, which Liens and obligations are listed on Schedule 7.2
hereto (and any extension, renewal and replacement Liens upon the
same property theretofore subject to a listed Lien, provided that
(i) the amount secured by each Lien constituting such an
extension, renewal or replacement Lien shall not exceed the
amount secured by the corresponding Lien theretofore existing and
(ii) such replacement Liens are incurred pursuant to agreements
or instruments which do not prohibit the Indebtedness created
pursuant to the Loan Documents, prohibit the Borrowers from
granting any Lien to the Lender Parties, or otherwise conflict
with the terms of the Loan Documents);
(b) Liens arising from taxes, assessments, charges or
claims described in Section 5.9 hereof to the extent permitted by
said Section 5.9;
(c) Liens in respect of property or assets of the
Borrowers imposed by law which were incurred in the ordinary
course of business, such as carriers', warehousemen's and
mechanics' Liens, statutory landlord's Liens, and other similar
Liens arising in the ordinary course of business, and (i) which
do not in the aggregate materially detract from the value of such
property or assets or materially impair the use thereof in the
operation of the business of the Borrowers taken as a whole or
(ii) which are being contested in good faith by appropriate
proceedings, which proceedings have the effect of preventing the
forfeiture or sale of the property or asset subject to such lien
and that adequate reserves have been set aside on the applicable
Borrower's books to protect against an adverse result;
(d) Liens arising from judgments, decrees or
attachments and Liens securing appeal bonds arising from
judgments, in each case in circumstances not constituting an
Event of Default under Section 8.1(f);
(e) Liens (other than any Lien imposed by ERISA)
incurred or deposits made 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, surety and appeal bonds, bids,
leases, government contracts, performance and return-of-money
PR\79666\1
-45-
bonds and other similar obligations incurred in the ordinary
course of business (exclusive of obligations in respect of the
payment for borrowed money);
(f) easements, rights-of-way, restrictions, minor
defects or irregularities in title to real property and other
similar charges or encumbrances on real property not interfering
in any material respect with the ordinary conduct of the business
of the Borrowers taken as a whole or the value or salability of
the assets so encumbered or affecting their use for their
intended purposes;
(g) Liens securing Assumed Indebtedness permitted
under Section 7.1(f), provided that such Liens are limited to the
assets being acquired in connection with the Acquisition giving
rise to such Assumed Indebtedness; and
(h) Liens securing purchase money Indebtedness
permitted under Section 7.1(g) provided that such Liens are
limited to the assets purchased with such purchase money
Indebtedness.
"Permitted Liens" shall in no event include any Lien imposed by,
or required to be granted pursuant to, ERISA or any Environmental
Law.
7.3 LOANS, ADVANCES AND INVESTMENTS. No Borrower shall at
any time (i) make or suffer to exist any loan or advance to, or
(ii) purchase, acquire or own (beneficially or of record) any
stock, bonds, notes or securities of, or any partnership interest
(whether general or limited) in, or any other interest in, or
(iii) make any capital contribution to, or other investment in
(collectively, "Investments") any other Person, except:
(a) receivables owing to such Borrower arising from
provision of services or sales of inventory under usual and
customary terms in the ordinary course of business;
(b) loans or advances from one Borrower to another;
(c) the capital stock or other ownership interests in
other Borrowers;
(d) Cash Equivalent Investments;
(e) Acquisitions permitted under Section 7.4
(Acquisitions, Etc.) below;
(f) Investments existing on the Closing Date in an
amount not greater than $4,000,000.00;
(g) Investments in businesses or ventures in the same
or related line of business as the Borrowers, not exceeding
PR\79666\1
-46-
$500,000.00 in the aggregate during the term of this Agreement;
and
(h) Loans or advances not exceeding $1,000,000.00 in
the aggregate during the term of this Agreement.
The "amount" of any Investment referred to in this Section 7.3
shall mean the sum of the following (without duplication): the
amount of cash paid for or contributed to such Investment; the
fair market value of any equity or assets constituting
consideration for or contributed to such Investment; and any
commitment to pay, contribute, incur, or become liable for any of
the foregoing.
7.4 ACQUISITIONS, ETC. No Borrower shall engage in any
Acquisition (other than an acquisition of assets in the ordinary
course of business) except:
(a) A Borrower may merge with or into another
Borrower, provided that (i) if J & J is a party to the
merger, it is the surviving entity and (ii) no Event of
Default or Default shall occur and be continuing before or
after giving effect to such transaction;
(b) J & J, IUC or any of their Affiliates may acquire
the NIC Note and all of the capital stock of NIC for an
Acquisition Cost of not more than $56,000,000.00, provided
that upon such acquisition NIC becomes a Borrower hereunder
pursuant to Section 5.10 hereof; and
(c) So long as no Default or Event of Default has
occurred or would exist after giving effect to such
Acquisition, any Borrower may make an Acquisition not
covered by clauses (a) or (b) of this Section 7.4, provided,
however, that (i) the Acquisition Cost of all Acquisitions
made pursuant to this paragraph (c) does not exceed
$5,000,000.00 in the aggregate during the term of this
Agreement, (ii) such Acquisition is of an enterprise in the
same line of business as any of the Borrowers are now in,
and (iii) the "Acquisition Conditions" set forth on Schedule
7.4 hereto shall have been satisfied.
7.5 DISPOSITIONS. No Borrower shall sell, convey, assign,
lease as lessor, transfer, abandon or otherwise dispose of
(collectively, for purposes of this Section 7.5, "transfer"),
voluntarily or involuntarily, any of its assets, except:
(a) A Borrower may sell inventory in the ordinary
course of business;
PR\79666\1
-47-
(b) A Borrower may dispose of equipment which is
obsolete or no longer useful in its business or otherwise
replaced with equipment having similar value and use;
(c) A Borrower may transfer its properties to J & J so
long as no Event of Default or Default shall exist either
before or after giving effect to such transfer;
(d) Anticipated transfers identified on Schedule 7.5;
and
(e) Borrowers may transfer its property having an
aggregate fair market value not to exceed $2,500,000.00
during the term of this Agreement.
7.6 ISSUANCE OF SUBSIDIARY STOCK OR OTHER OWNERSHIP
INTERESTS. The Borrowers shall not create, acquire, dispose of,
or change any interest in any Subsidiary except as follows:
(a) Subsidiaries of Borrowers (or any interest
therein) may be created or acquired in connection with an
Acquisition to the extent permitted under Section 7.4 above
(Acquisitions, Etc.); and
(b) Subsidiaries of Borrowers (or any interest
therein) may be created or acquired in connection with an
Investment to the extent permitted under Section 7.3 above
(Loans, Advances and Investments);
provided, however, that any such Subsidiaries so created or
acquired shall become "Borrowers" hereunder and corresponding
parties to the other Loan Documents within thirty (30) days
thereafter.
7.7 LEASES. The Borrowers shall not at any time, enter
into or suffer to remain in effect any lease, as lessee, of any
property, except:
(a) Leases (including subleases) between Borrowers;
(b) Capitalized Leases to the extent permitted under
Section 7.1 above;
(c) Leases existing on the date hereof; and
(d) Other leases which are not Capitalized Leases or
Synthetic Leases, provided that such leases entered into any
fiscal year not increase net aggregate rental payable in any
lease year, thereafter by more than $1,500,000.00, and
provided further that all such leases entered into at any
time during the term of this Agreement not increase net
aggregate rental payable in any lease year by more than
$3,000,000.00.
PR\79666\1
-48-
7.8 DIVIDENDS AND RELATED DISTRIBUTIONS. J & J shall not
(a) declare or pay any dividends, (b) purchase, redeem, retire
or otherwise acquire for value any of its capital stock now or
hereafter outstanding, (c) make any distribution of assets to its
stockholders as such whether in cash, assets or obligations of J
& J, (d) allocate or otherwise set apart any sum for the payment
of any dividend or distribution on, or for the purchase,
redemption or retirement of, any shares of its capital stock, or
(e) make any other distribution by return of capital or otherwise
in respect of any shares of its capital stock, unless J & J could
have taken such action in the last completed fiscal quarter and
still remained in compliance with all of the financial covenants
set forth in Article 6 hereof.
7.9 CONSOLIDATED TAX RETURN. No Borrower shall (a) file or
consent to the filing of any consolidated income tax return with
any Person other than other Borrowers, or (b) become party to any
tax sharing or tax allocation agreement with any other Person.
7.10 LIMITATIONS ON MODIFICATION OF CERTAIN DOCUMENTS. No
Borrower shall amend, modify or supplement its articles or
certificate of incorporation, bylaws, or other constituent
documents (i) if a Material Adverse Effect could result from such
amendment, modification or supplement or (ii) if such amendment,
modification or waiver could reasonably be expected to materially
adversely affect the rights or interests of the Administrative
Agent or the Lenders.
7.11 LIMITATION ON CERTAIN RESTRICTIVE PROVISIONS. No
Borrower shall enter into, or remain a party to, any agreement or
instrument which would impose any restriction: (a) on the right
of such Person from time to time to declare and pay dividends or
take similar actions with respect to capital stock owned by such
Person or pay any Indebtedness, obligations or liabilities from
time to time owed to another Borrower; or (b) that would prohibit
the grant of any Lien upon any of its properties (now owned or
hereafter acquired) to secure any Indebtedness; or (c) would
prohibit, or require the consent of any Person to, any amendment,
modification or supplement to any of the Loan Documents except:
(i) restrictions set forth in the Loan Documents; and (ii) legal
restrictions of general applicability.
7.12 LIMITATIONS ON MERGERS, ETC. No Borrower shall merge
or consolidate with or into any Person, except (a) mergers of any
PR\79666\1
-49-
Borrower with J & J where J & J is the survivor, (b) mergers of
any other Borrower with any other Borrower; (c) any merger
pursuant to an Acquisition permitted under Section 7.4 above
(Acquisitions, Etc.); or (d) any merger pursuant to a transfer
permitted under Section 7.5 above (Dispositions).
7.13 AVOIDANCE OF OTHER CONFLICTS. No Borrower shall
violate or conflict with, be in default under, or be or remain
subject to any liability (contingent or otherwise) on account of
any violation or conflict with (a) its articles or certificate of
incorporation, bylaws or other constituent documents, or (b) any
agreement or instrument to which it is party or by which any of
its properties (now owned or hereafter acquired) may be subject
or bound, except, with respect to clause (b), for matters that
could not, individually or in the aggregate, have a Material
Adverse Effect.
PR\79666\1
-50-
ARTICLE 8
DEFAULTS
8.1 "EVENTS OF DEFAULT." An Event of Default means any one
of the following events (whatever the reason for such Event of
Default, whether it shall be voluntary or involuntary and whether
it shall be by action or inaction, by operation of law, pursuant
to a court order or any rule or regulation of any Governmental
Authority or otherwise):
(a) Failure to Pay Principal or Reimburse Drawings.
The Borrowers shall fail to make any payment of the principal of
any Loan on the date when the same shall become due and payable,
whether at stated maturity or at a date fixed for any installment
or prepayment thereof or otherwise.
(b) Failure to Pay Interest, Fees and Other Amounts.
The Borrowers shall fail to make any payment of interest on any
Loan or shall fail to pay any fees or any other amounts owing
hereunder or under any other Loan Documents (other than as
specified in paragraph (a) above) on the dates when such
interest, fees or other amounts shall become due and payable.
(c) Covenant Defaults. (i) There shall occur a
default in the due performance or observance of any term,
covenant or agreement to be performed or observed pursuant to any
of Sections 5.7, 5.10, 5.12 or 5.13 or any Section of Article 6
or any Section of Article 7.
(ii) There shall occur any default in the due
performance or observance of any term, covenant or agreement to
be performed or observed pursuant to the provisions of this
Agreement (other than as provided in paragraph (a) or paragraph
(b) above or subparagraph (i) of this paragraph (c)) and, if
capable of being remedied, such default shall continue unremedied
for thirty (30) days after any Borrower becomes aware, or should
in the exercise of reasonable diligence have become aware, of
such default.
(d) Misrepresentation. Any representation or warranty
made or deemed made by any Borrower in or pursuant to or in
connection with any Loan Document shall prove to have been false
or misleading in any material respect as of the time when made or
deemed made.
(e) Cross-Defaults. (i) Any Borrower shall fail to
pay, in accordance with its terms and when due and payable, any
Indebtedness (other than Indebtedness referred in paragraph (a)
above) under, or arising out of any Interest Rate Hedging
Agreement or an agreement or instrument (or group or series of
related agreements or instruments) which evidences outstanding
Indebtedness in excess of $500,000.00; (ii) the maturity of any
such Indebtedness shall, in whole or in part, have been
PR\79666\1
-51-
accelerated, or any such Indebtedness shall, in whole or in part,
have been required to be prepaid or purchased prior to the stated
maturity thereof; (iii) any event shall have occurred and be
continuing that permits any holder or holders of such
Indebtedness, any trustee or agent acting on behalf of such
holder or holders or any other Person to accelerate the maturity
thereof or require any prepayment or repurchase thereof; or (iv)
a default by any Borrower shall be continuing under any other
instrument or agreement (whether or not relating to Indebtedness)
binding upon such Person, except a default that, together with
all other such defaults under this clause (iv), could not have a
Material Adverse Effect.
(f) Judgments and Executions. One or more judgments
for the payment of money shall have been entered against any
Borrower or Borrowers which judgment or judgments, to the extent
not paid or fully covered by insurance, exceed $500,000.00 in the
aggregate, and such judgment or judgments shall have remained
undischarged and unstayed for a period of 30 consecutive days; or
one or more writs or warrants of attachment, garnishment,
execution, distraint or similar process or any attachment
(prejudgment or otherwise) of assets exceeding in value the
aggregate amount of $500,000.00 shall have been issued against
any Borrower or Borrowers or any of its or their respective
properties.
(g) Invalidity or Noncompliance With Loan Documents.
Any of the Borrowers shall fail to perform any of its obligations
under any of the Loan Documents (after taking into account any
applicable cure period set forth in such agreements), or the
validity of this Agreement or any of the other Loan Documents, or
the subordination provisions of any other instrument or document
intended by the parties hereto to benefit the Lender Parties,
shall have been challenged or disaffirmed by or on behalf of any
of the Borrowers, or any of the Loan Documents shall cease to be
in full force and effect (other than pursuant to its terms) or,
other than as a direct result of any action or inaction of a
Lender Party.
(h) Environmental. Any one or more of the events or
conditions set forth in the following clauses (i) or (ii) shall
have occurred with respect to any Borrower or any of their
Environmental Affiliates, and the Required Lenders shall
determine in good faith (which determination shall be conclusive)
that such event(s) or condition(s), individually or in the
aggregate, could have a Material Adverse Effect: (i) any past or
present violation of any Environmental Law by such Person which
has not been cured to the satisfaction of the Required Lenders,
or (ii) the existence of any pending or threatened Environmental
Claim against any such Person, or the existence of any past or
present acts, omissions, events or circumstances that could form
the basis of any Environmental Claim against any such Person.
PR\79666\1
-52-
(i) Subsidiaries as Borrowers. Any direct or indirect
Subsidiary of J & J shall fail to be, or shall cease to be, or
fail to become, a Borrower hereunder.
(j) Insolvency, Bankruptcy, Etc. Any Borrower shall
make an assignment for the benefit of creditors or a composition
with creditors, shall generally not be paying its debts as they
mature, shall admit its inability to pay its debts as they
mature, shall file a petition in bankruptcy, shall be adjudicated
insolvent or bankrupt, shall petition or apply to any tribunal
for the appointment of any receiver, custodian, liquidator or
trustee of or for it or any substantial part of its property or
assets, shall commence any proceeding relating to it under any
bankruptcy, reorganization, arrangement, readjustment of debt,
receivership, dissolution or liquidation law or statute of any
jurisdiction, whether now or hereafter in effect; or there shall
be commenced against such Borrower, any such proceeding and the
same shall not be dismissed within thirty (30) days or an order,
judgment or decree approving the petition in any such proceeding
shall be entered against such Borrower; or any Borrower shall by
any act or failure to act indicate its consent to, approval of or
acquiescence in, any such proceeding or any appointment of any
receiver, custodian, liquidator or trustee of or for it or for
any substantial part of its property or assets, or shall suffer
the appointment of any receiver, liquidator or trustee, or shall
take any corporate action for the purpose of effecting any of the
foregoing; or any court of competent jurisdiction shall assume
jurisdiction with respect to any such proceeding and the same
shall not be dismissed within thirty (30) days or a receiver or a
trustee or other officer or representative of a court or of
creditors, or any court, governmental office or agency, shall,
under color of legal authority, take and hold possession of any
substantial part of the property or assets of such Borrower and
shall not have relinquished possession within thirty (30) days,
or such Borrower shall have concealed, removed, or permitted to
be concealed or removed, any part of its property, with intent to
hinder, delay or defraud its creditors, or any of them, or any
Borrower shall have suffered or permitted, while insolvent, any
creditor to obtain a Lien upon any of its property through legal
proceedings or distraint.
8.2 CONSEQUENCES OF AN EVENT OF DEFAULT.
(a) Events of Default in General. If an Event of
Default (other than one specified in paragraph (j) of Section 8.1
(Insolvency, Bankruptcy, Etc.) hereof) shall occur and be
continuing or shall exist, then, in addition to all other rights
and remedies which the Administrative Agent or any other Lender
Party may have hereunder or under any other Loan Document, at
law, in equity or otherwise, the Lenders shall be under no
further obligation to make Loans and the Administrative Agent
may, (and upon the written request of the Required Lenders,
PR\79666\1
-53-
shall), by notice to J & J (on behalf of the Borrowers), from
time to time do any or all of the following:
(i) Declare the Commitments terminated, whereupon
the Commitments will terminate and any fees hereunder
shall be immediately due and payable without
presentment, demand, protest or further notice of any
kind, all of which are hereby waived, and an action
therefor shall immediately accrue.
(ii) Declare the unpaid principal amount of the
Loans, interest accrued thereon and all other Loan
Obligations to be immediately due and payable without
presentment, demand, protest or further notice of any
kind, all of which are hereby waived, and an action
therefor shall immediately accrue.
(iii) Exercise such other remedies as may be
available to the Lender Parties under applicable Law.
(b) Automatic Acceleration; Certain Bankruptcy-Related
Events. If an Event of Default specified in paragraph (j) of
Section 8.1 (Insolvency, Bankruptcy, Etc.) hereof shall occur or
exist, then, in addition to all other rights and remedies which
any Lender Party may have hereunder or under any other Loan
Document, at law, in equity or otherwise, the Commitments shall
automatically terminate and the Lenders shall be under no further
obligation to make Loans, and the unpaid principal amount of the
Loans, interest accrued thereon and all other Loan Obligations
shall become immediately due and payable without presentment,
demand, protest or notice of any kind, all of which are hereby
waived, and an action therefor shall immediately accrue, and in
addition, the Administrative Agent may, and upon the written
request of the Required Lenders, shall exercise such other
remedies as may be available to the Lender Parties under
applicable Law.
(c) Equitable Remedies. It is agreed that, in
addition to all other rights hereunder or under Law, the
Administrative Agent shall have the right to institute
proceedings in equity or other appropriate proceedings for the
specific performance of any covenant or agreement made in any of
the Loan Documents or for an injunction against the violation of
any of the terms of any of the Loan Documents or in aid of the
exercise of any power granted in any of the Loan Documents or by
Law or otherwise.
8.3 APPLICATION OF PROCEEDS. After the occurrence of an
Event of Default and acceleration of the Loans, any amounts
received on account of Loan Obligations shall be applied by the
Administrative Agent in the following order:
PR\79666\1
-54-
First, to payment of that portion of the Loan
Obligations constituting fees, indemnities, expenses and
other amounts due to the Administrative Agent in its
capacity as such;
Second, to payment of that portion of the Loan
Obligations constituting fees, indemnities (other than those
paid pursuant to the preceding clause First) due to the
Lender Parties, ratably among them in proportion to the
amounts described in this clause Second due to them;
Third, to payment of that portion of the Loan
Obligations constituting accrued and unpaid interest on
Loans, ratably among the Lender Parties in proportion to the
respective amounts described in this clause Third due to
them;
Fourth, to payment of that portion of the Loan
Obligations constituting unpaid principal of the Loans
ratably among the Lender Parties in proportion to the
respective amounts described in this clause Fourth due to
them;
Fifth, to payment of all other Loan Obligations,
ratably among the Lender Parties in proportion to the
respective amounts described in this clause Fifth due to
them; and
Finally, the balance, if any, after all of the Loan
Obligations have been indefeasibly paid in full, to J & J
(on behalf of the Borrowers) or as otherwise required by
Law.
PR\79666\1
-55-
ARTICLE 9
THE ADMINISTRATIVE AGENT
9.1 APPOINTMENT. Subject to the provisions of the second
sentence of Section 9.9 below, each Lender hereby irrevocably
appoints Mellon to act as Administrative Agent for such Lender
under this Agreement and the other Loan Documents. Each Lender
hereby irrevocably authorizes the Administrative Agent to take
such action on behalf of such Lender under the provisions of this
Agreement and the other Loan Documents, and to exercise such
powers and to perform such duties, as are expressly delegated to
or required of the Administrative Agent by the terms hereof or
thereof, together with such powers as are reasonably incidental
thereto. Mellon hereby agrees to act as Administrative Agent on
behalf of the Lenders on the terms and conditions set forth in
this Agreement and the other Loan Documents, subject to its right
to resign as provided in Section 9.9 hereof. Each Lender hereby
irrevocably authorizes the Administrative Agent to execute and
deliver each of the Loan Documents and to accept delivery of such
of the other Loan Documents as may not require execution by the
Administrative Agent. Each Lender agrees that the rights and
remedies granted to the Administrative Agent under the Loan
Documents shall be exercised exclusively by the Administrative
Agent (or a Person designated by the Administrative Agent), and
that no Lender shall have any right individually to exercise any
such right or remedy, except to the extent, if any, expressly
provided herein or therein.
9.2 GENERAL NATURE OF ADMINISTRATIVE AGENT'S DUTIES.
Notwithstanding anything to the contrary elsewhere in this
Agreement or in any other Loan Document:
(a) The Administrative Agent shall have no duties or
responsibilities except those expressly set forth in this
Agreement and the other Loan Documents, and no implied
duties or responsibilities on the part of the Administrative
Agent shall be read into this Agreement or any other Loan
Document or shall otherwise exist.
(b) The duties and responsibilities of the
Administrative Agent under this Agreement and the other Loan
Documents shall be mechanical and administrative in nature,
and the Administrative Agent shall not have a fiduciary
relationship with respect to any Lender.
(c) The Administrative Agent's relationship with and
to the Lenders is governed exclusively by the terms of this
Agreement and the other Loan Documents. The Administrative
Agent does not assume, and shall not at any time be deemed
PR\79666\1
-56-
to have, any relationship of agency or trust with or for,
any Lender or any other Person or (except only as expressly
provided in this Agreement and the other Loan Documents) any
other duty or responsibility to such Lender or other Person.
(d) The Administrative Agent shall be under no
obligation to take any action hereunder or under any other
Loan Document if the Administrative Agent believes in good
faith that taking such action may conflict with any Law or
any provision of this Agreement or any other Loan Document,
or may require the Administrative Agent to qualify to do
business in any jurisdiction where it is not then so
qualified.
(e) The authority of the Administrative Agent to
request information from the Borrowers or take any other
voluntary action hereunder shall impose no duty of any kind
on the Administrative Agent to make such request or take any
such action.
(f) The Administrative Agent shall have no duty to
inquire whether any Interest Rate Hedging Agreement conforms
to the terms and limitations of this Agreement and shall
have no duty to inquire as to whether the Borrowers maintain
any Interest Rate Hedging Agreements.
9.3 EXERCISE OF POWERS. The Administrative Agent shall
take any action of the type specified in this Agreement or any
other Loan Document as being within the Administrative Agent's
rights, powers or discretion in accordance with directions from
the Required Lenders (or as otherwise provided in the Loan
Documents). In the absence of such direction, the Administrative
Agent shall have the authority (but under no circumstances shall
be obligated), in its sole discretion, to take any such action,
except to the extent that this Agreement or such other Loan
Document expressly requires the direction or consent of the
Required Lenders (or all of the Lenders, or some other Person or
group of Persons), in which case the Administrative Agent shall
not take such action absent such direction or consent. Any
action or inaction pursuant to such direction, discretion or
consent shall be binding on each Lender (whether or not it so
consented). The Administrative Agent shall not have any
liability to any Person as a result of any action or inaction in
conformity with this Section 9.3.
9.4 GENERAL EXCULPATORY PROVISIONS. Notwithstanding
anything to the contrary elsewhere in this Agreement or any other
Loan Document:
PR\79666\1
-57-
(a) The Administrative Agent shall not be liable for
any action taken or omitted to be taken by it under or in
connection with this Agreement or any other Loan Document, except
only for direct (as opposed to consequential or other) damages
suffered by a Person and only to the extent that such Person
proves that such damages were caused by the Administrative
Agent's own gross negligence or willful misconduct.
(b) The Administrative Agent shall not be responsible
for (i) the execution, delivery, effectiveness, enforceability,
genuineness, validity or adequacy of any Loan Document, (ii) any
recital, representation, warranty, document, certificate, report
or statement in, provided for in, or received under or in
connection with, any Loan Document, or (iii) any failure of any
Borrower or, any Lender to perform any of their respective
obligations under any Loan Document.
(c) The Administrative Agent shall not be under any
obligation to ascertain, inquire or give any notice relating to
(i) the performance or observance of any of the terms or
conditions of this Agreement or any other Loan Document on the
part of any Borrower, (ii) the business, operations, condition
(financial or otherwise) or prospects of any Borrower or any
other Person (even if the Administrative Agent knows or should
know that some event or condition exists or fails to exist), or
(iii) except to the extent set forth in Section 9.5(f) below, the
existence of any Event of Default or Default.
(d) The Administrative Agent shall not be under any
obligation, either initially or on a continuing basis, to provide
any Lender Party with any notices, reports or information of any
nature, whether in its possession presently or hereafter, whether
obtained under or in connection with this Agreement or otherwise,
except for such notices, reports and other information expressly
required by this Agreement or any other Loan Document to be
furnished by the Administrative Agent to such Lender Party.
9.5 ADMINISTRATION BY THE ADMINISTRATIVE AGENT.
(a) The Administrative Agent may rely upon any notice
or other communication of any nature (written or oral, including
but not limited to telephone conversations, whether or not such
notice or other communication is made in a manner permitted or
required by this Agreement or any other Loan Document)
purportedly made by or on behalf of the proper party or parties,
and the Administrative Agent shall not have any duty to verify
the identity or authority of any Person giving such notice or
other communication.
(b) The Administrative Agent may consult with legal
counsel (including in-house counsel for the Administrative Agent
or in-house or other counsel for any Borrower), independent
PR\79666\1
-58-
public accountants and any other experts selected by it from time
to time, and the Administrative Agent shall not be liable for any
action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or
experts.
(c) The Administrative Agent may conclusively rely
upon the truth of the statements and the correctness of the
opinions expressed in any certificates or opinions furnished to
the Administrative Agent in accordance with the requirements of
this Agreement or any other Loan Document. Whenever the
Administrative Agent shall deem it necessary or desirable that a
matter be proved or established with respect to any Borrower or
Lender Party, such matter may be established by a certificate of
such Borrower or Lender Party, as the case may be, and the
Administrative Agent may conclusively rely upon such certificate
(unless other evidence with respect to such matter is
specifically prescribed in this Agreement or another Loan
Document).
(d) The Administrative Agent may fail or refuse to
take any action unless it shall be directed by the Required
Lenders (or all of the Lenders, or some other Person or group of
Persons, if this Agreement or another Loan Document so expressly
requires) to take such action and it shall be indemnified to its
satisfaction from time to time against any and all amounts,
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or
nature which may be imposed on, incurred by or asserted against
the Administrative Agent by reason of taking or continuing to
take any such action.
(e) The Administrative Agent may perform any of its
duties under this Agreement or any other Loan Document by or
through agents or attorneys-in-fact. The Administrative Agent
shall not be responsible for the negligence or misconduct of any
agents or attorneys-in-fact selected by it with reasonable care.
(f) The Administrative Agent shall not be deemed to
have any knowledge or notice of the occurrence of any Event of
Default or Default unless the Administrative Agent has received
notice from a Lender Party or a Borrower referring to this
Agreement, describing such Event of Default or Default, and
stating that such notice is a "notice of default." If the
Administrative Agent receives such a notice, the Administrative
Agent shall give prompt notice thereof to each Lender Party.
9.6 LENDER PARTIES NOT RELYING ON ADMINISTRATIVE AGENT OR
OTHER LENDERS. Each Lender Party acknowledges as follows: (a)
neither the Administrative Agent nor any other Lender Party has
made any representations or warranties to it, and no act taken
hereafter by the Administrative Agent or any other Lender Party
PR\79666\1
-59-
shall be deemed to constitute any representation or warranty by
the Administrative Agent or such other Lender Party to it; (b) it
has, independently and without reliance upon the Administrative
Agent or any other Lender Party, and based upon such documents
and information as it has deemed appropriate, made its own credit
and legal analysis and decision to enter into this Agreement and
the other Loan Documents; and (c) it will, independently and
without reliance upon the Administrative Agent or any other
Lender Party, and based upon such documents and information as it
shall deem appropriate at the time, make its own decisions to
take or not take action under or in connection with this
Agreement and the other Loan Documents.
9.7 INDEMNIFICATION. Each Lender agrees to reimburse and
indemnify the Administrative Agent and its directors, officers,
employees and agents (to the extent not reimbursed by a Borrower
and without limitation of the obligations of the Borrowers to do
so), in proportion to the Lenders' respective pro rata share of
(without duplication) the Commitment and the Loans, from and
against any and all amounts, losses, liabilities, claims,
damages, expenses, obligations, penalties, actions, judgments,
suits, costs or disbursements of any kind or nature (including
the fees and disbursements of counsel for the Administrative
Agent or such other Person in connection with any investigative,
administrative or judicial proceeding commenced or threatened,
whether or not the Administrative Agent or such other Person
shall be designated a party thereto) that may at any time be
imposed on, incurred by or asserted against the Administrative
Agent or such other Person as a result of, or arising out of, or
in any way related to or by reason of, this Agreement, any other
Loan Document, any Acquisition or any other transaction from time
to time contemplated hereby or thereby, or any transaction
actually or proposed to be financed in whole or in part, directly
or indirectly, with the proceeds of any Loan, provided that no
Lender shall be liable for any portion of such amounts, losses,
liabilities, claims, damages, expenses, obligations, penalties,
actions, judgments, suits, costs or disbursements that such
Lender Party proves were the result of the gross negligence or
willful misconduct of the Administrative Agent or such other
Person. Payments under this Section 9.7 shall be due and payable
on demand.
9.8 REGISTER. The Administrative Agent shall maintain at
its address referred to in Section 12.1 a copy of each Assignment
and Acceptance delivered to and accepted by it and a register for
the recordation of the names and addresses of the Lenders and the
Commitment of, and principal amount of the Loans and stated
interest thereon owing to, each Lender from time to time (the
"Register"). The entries in the Register shall be conclusive and
binding for all purposes, absent manifest error, and the
PR\79666\1
-60-
Borrowers, the Administrative Agent and the Lenders may treat
each Person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement. The Register shall
be available for inspection by J & J on behalf of the Borrowers
or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
9.9 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative
Agent may resign at any time by giving 30 days' prior written
notice thereof to the other Lender Parties and J & J on behalf of
the Borrowers. The Administrative Agent may be removed by the
Required Lenders at any time for cause by such Required Lenders
giving 30 days' prior written notice thereof to the
Administrative Agent, the other Lender Parties and J & J on
behalf of the Borrowers. Upon any such resignation or removal,
the Required Lenders shall have the right to appoint a successor
Administrative Agent with (so long as no Default or Event of
Default shall have occurred and then be continuing) the consent
of J & J on behalf of the Borrowers whose consent shall not be
unreasonably withheld or delayed. If no successor Administrative
Agent shall have been so appointed and consented to, and shall
have accepted such appointment, within 30 days after such notice
of resignation or removal, then CoreStates shall have the right
to become the successor Administrative Agent by giving written
notice thereof to J & J and the Lenders and if CoreStates
declines to become successor Administrative Agent or fails to
give such notice within thirty five (35) days after the retiring
Administrative Agent's notice of resignation or removal, then the
retiring Administrative Agent may (but shall not be required to)
appoint a successor Administrative Agent. Each successor
Administrative Agent shall be a Lender if any Lender shall at the
time be willing to become the successor Administrative Agent, and
if no Lender shall then be so willing, then such successor
Administrative Agent shall be an Eligible Institution. Upon the
acceptance by a successor Administrative Agent of its appointment
as Administrative Agent hereunder, such successor Administrative
Agent shall thereupon succeed to and become vested with all the
properties, rights, powers, privileges and duties of the former
Administrative Agent in its capacity as such, without further
act, deed or conveyance. Upon the effective date of resignation
or removal of a retiring Administrative Agent, such
Administrative Agent shall be discharged from its duties under
this Agreement and the other Loan Documents, but the provisions
of this Agreement shall inure to its benefit as to any actions
taken or omitted by it while it was Administrative Agent under
this Agreement. If and so long as no successor Administrative
Agent shall have been appointed, then any notice or other
communication required or permitted to be given by the
Administrative Agent shall be sufficiently given if given by the
Required Lenders, all notices or other communications required or
permitted to be given to the Administrative Agent shall be given
to each Lender, and all payments to be made to the Administrative
PR\79666\1
-61-
Agent shall be made directly to the Borrowers or Lender Party for
whose account such payment is made.
9.10 ADDITIONAL ADMINISTRATIVE AGENTS. If the
Administrative Agent shall from time to time deem it necessary or
advisable, for its own protection in the performance of its
duties hereunder or in the interest of the Lender Parties, the
Administrative Agent and the Borrowers shall execute and deliver
a supplemental agreement and all other instruments and agreements
necessary or advisable, in the opinion of the Administrative
Agent, to constitute one or more other Persons designated by the
Administrative Agent, to act as co-Administrative Agent, with
such powers of the Administrative Agent as may be provided in
such supplemental agreement, and to vest in such other Person as
such co-agent or separate agent, as the case may be, any
properties, rights, powers, privileges and duties of the
Administrative Agent under this Agreement or any other Loan
Document.
9.11 CALCULATIONS. The Administrative Agent shall not be
liable for any calculation, apportionment or distribution of
payments made by it in good faith and without gross negligence or
willful misconduct. If such calculation, apportionment or
distribution is subsequently determined to have been made in
error, the sole recourse of any Lender Party to whom payment was
due but not made shall be to recover from the other Lender
Parties any payment in excess of the amount to which they are
determined to be entitled or, if the amount due was not paid by
the appropriate Borrower, to recover such amount from the
appropriate Borrower.
9.12 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. With
respect to its Commitment hereunder and the Loan Obligations
owing to it, the Administrative Agent shall have the same rights
and powers under this Agreement and each other Loan Document as
any other Lender and may exercise the same as though it were not
the Administrative Agent, and the terms "Lender", "Holder of
Notes" and like terms shall include the Administrative Agent in
its individual capacity as such. The Administrative Agent and
its Affiliates may, without liability to account, make loans to,
accept deposits from, acquire debt or equity interests in, act as
trustee under indentures of, enter into Interest Rate Hedging
Agreements with, serve as "Administrative Agent" for other
financing vehicles, issue letters of credit on behalf of, and
engage in any other business with, (a) any Borrower or any
stockholder, Subsidiary or Affiliate of any Borrower, or (b) any
other Person, whether such other Person may be engaged in any
conflict or dispute with any Borrower or any Lender Party or
PR\79666\1
-62-
otherwise, as though the Administrative Agent were not the
Administrative Agent hereunder.
PR\79666\1
-63-
ARTICLE 10
SPECIAL INTER-BORROWER PROVISIONS
10.1 CERTAIN BORROWER ACKNOWLEDGEMENTS.
(a) Each Borrower acknowledges that it will enjoy
significant benefits from the business conducted by the other
Borrowers because of, inter alia, their combined ability to
bargain with other Persons including without limitation their
ability to receive the credit facilities on favorable terms
granted by this Agreement and other Loan Documents which would
not have been available to an individual Borrower acting alone.
Each Borrower has determined that it is in its best interest to
procure credit facilities which each Borrower may utilize
directly and which receive the credit support of the other
Borrowers as contemplated by this Agreement and the other Loan
Documents.
(b) The Lenders have advised the Borrowers that they
are unwilling to enter into this Agreement and the other Loan
Documents and make available the credit facilities extended
hereby to any Borrower unless each Borrower agrees, among other
things, to be jointly and severally liable for the due and proper
payment of the obligations of each other Borrower under this
Agreement and other Loan Documents. Each Borrower has determined
that it is in its best interest and in pursuit of its purposes
that it so induce the Lenders to extend credit pursuant to this
Agreement and the other documents executed in connection herewith
(i) because of the desirability to each Borrower of the credit
facilities, the interest rates and the modes of borrowing
available hereunder, (ii) because each Borrower may engage in
transactions jointly with other Borrowers and (iii) because each
Borrower may require, from time to time, access to funds under
this Agreement for the purposes herein set forth.
(c) Each Borrower has determined that it has and,
after giving effect to the transactions contemplated by this
Agreement and the other Loan Documents (including, without
limitation, the inter-Borrower arrangement set forth in this
Article 10 will have, assets having a fair saleable value in
excess of the amount required to pay its probable liability on
its existing debts as they fall due for payment and that the sum
of its debts is not and will not then be greater than all of its
property at a fair valuation, that such Borrower has, and will
have, access to adequate capital for the conduct of its business
and the ability to pay its debts from time to time incurred in
connection therewith as such debts mature and that the value of
the benefits to be derived by such Borrower from the access to
funds under this Agreement (including, without limitation, the
inter-Borrower arrangement set forth in this Article 10) is
reasonably equivalent to the obligations undertaken pursuant
hereto.
PR\79666\1
-64-
10.2 CERTAIN INTER-BORROWER AGREEMENTS.
(a) Subject to paragraph (b) below, each Borrower as
indemnitor shall indemnify the other Borrowers as indemnitees for
all Loan Obligations incurred by the indemnitee Borrowers for
Loans advanced to the indemnitor Borrower.
(b) The rights and obligations of the Borrowers
pursuant to paragraph (a) above shall be subordinated in all
respects to the rights of the Administrative Agent and the other
Lender Parties with respect to the Loan Obligations and,
accordingly, each Borrower agrees that it shall not make any
payment or receive any payment pursuant to the preceding
paragraph (a) at any time a Default has occurred and is
continuing or would be caused thereby. Each Borrower agrees that
in the event it receives any payment described by or in violation
of this paragraph (b), it shall accept such payment as agent of
the Administrative Agent, for the benefit of the Lender Parties,
and hold the same in trust on behalf of and for the benefit of
the Administrative Agent, for the benefit of the Lender Parties.
10.3 RECORDS. J & J (on behalf of each Borrower) shall
maintain records specifying (a) all Loan Obligations incurred by
each Borrower, (b) the date of such incurrence, (c) the date and
amount of any payments made in respect of such Loan Obligations
and (d) all inter-Borrower obligations pursuant to paragraph 10.2
above. J & J shall make copies of such records available to the
Administrative Agent, upon request.
PR\79666\1
-65-
ARTICLE 11
DEFINITIONS; CONSTRUCTION
11.1 CERTAIN DEFINITIONS. As used in this Agreement, the
following terms have the following meanings, (terms defined in
the singular to have a correlative meaning when used in the
plural) unless the context hereof otherwise clearly requires:
"Accumulated Funding Deficiency" has the meaning given
to such term in S4001(a)(18) of ERISA.
"Acquisition" means any acquisition by one or more of
the Borrowers, directly or indirectly, whether in one
transaction or in a series of related transactions (and whether
by merger, consolidation, acquisition of assets or otherwise) of
all or any substantial portion of the ownership interests in or
assets of any separate business enterprise.
"Acquisition Cost" means, with respect to any
Acquisition, the value in Dollars of the total consideration paid
or payable (whether immediate or deferred and whether in cash,
equity or other assets) by any of the Borrowers for or in respect
of the ownership interests or assets being acquired in such
Acquisition.
"Administrative Agent" has the meaning ascribed to such
term in the preamble of this Agreement.
"Affiliate" of a Person means (a) any other Person
which directly or indirectly controls, or is controlled by, or is
under common control with, such Person, (b) any director or
officer (or, in the case of a Person which is not a corporation,
any individual having analogous powers) of such Person or of a
Person who is an Affiliate of such Person, and (c) any individual
related to such Person or Affiliate by consanguinity or adoption
within the third degree. For purposes of the preceding sentence,
"control" of a Person means (a) the possession, directly or
indirectly, of the power to direct or cause the direction of the
management or policies of such Person, whether through the
ownership of voting securities, by contract or otherwise and (b)
in any case shall include direct or indirect ownership
(beneficially or of record) of, or direct or indirect power to
vote, 5% or more of the outstanding shares of any class of
capital stock of such Person (or in the case of a Person that is
not a corporation, 5% or more of any class of equity interest).
"Agreement" means this Credit Agreement as the same may
be amended, modified, restated or supplemented from time to time
in accordance with its terms.
"Agreement Date" means the date first-above written.
"Amount of Unfunded Benefit Liabilities" has the
meaning given to such term in S4001(a)(18) of ERISA.
"Applicable Margin" means a marginal rate of interest
which is added to the LIBO Rate to determine the effective rate
of interest on LIBO Rate Loans. Until the Officer's Compliance
Certificate for the fiscal year ended December 31, 1997 is
delivered to the Administrative Agent and Lenders pursuant to
Section 5.1 above, the Applicable Margin for LIBO Rate Loans
PR\79666\1
-66-
shall be 0.50%. Thereafter, the Applicable Margin shall be
determined in the following manner:
For any LIBO Rate Loans, the Applicable Margin shall be
the percentage amount set forth below under the caption
"Applicable Margin" opposite the relevant Total Funded
Indebtedness/EBITDA Ratio:
Total Funded Applicable Margin
for
Indebtedness/EBITDA Ratio LIBO Rate Loans
below 2.50 0.50%
> 2.50 < 2.75 0.75%
> 2.75 < 3.00 1.00%
> 3.00 1.25%
The Applicable Margin shall be adjusted five Business Days after
receipt of the annual or quarterly Officer's Compliance
Certificate, delivered pursuant to Section 5.1. At any time that
such annual or quarterly Officer's Compliance Certificate is
required to be delivered pursuant to said Section 5.1 and is not
so delivered, then the Applicable Margin shall be the highest
rate specified above until the Officer's Compliance Certificate
is so delivered.
"Assignment" has the meaning ascribed to such term in
the recitals hereof.
"Assignment and Acceptance" shall have the meaning
ascribed to such term in Section 12.9.
"Assumed Indebtedness" means Indebtedness incurred by a
Person which is not a Borrower and which (a) is existing at the
time such Person (or assets of such Person) is acquired by a
Borrower and (b) is assumed by a Borrower in connection with such
Acquisition, other than Indebtedness incurred by the original
obligor in connection with, or in contemplation of, such
Acquisition.
"Available RC Commitment" means, as of any date, the
difference obtained by subtracting (a) minus (b) where (a) is the
amount of the RC Commitment on such date and (b) is the aggregate
outstanding principal amount of all RC Loans on such date.
"Bank Tax" means (i) any Tax based on or measured by
net income of a Lender Party, any franchise Tax and any doing
business Tax imposed upon any Lender Party by any jurisdiction
(or any political subdivision thereof) in which such Lender Party
or any lending office of a Lender Party is located and (ii) for
the purposes of Section 1.13, any other Tax imposed by a
jurisdiction other than the United States or a political
subdivision thereof that would not have been imposed but for a
present or former connection between such Lender Party or lending
office (as the case may be) and such jurisdiction.
"Borrowers" has the meaning ascribed to such term in
the preamble hereto. It is the intent of the parties (and a
covenant of the Borrowers herein) that each Person which is now
or hereafter becomes a direct or indirect Subsidiary of J & J
shall at all times after becoming a Subsidiary of J & J be a
"Borrower" pursuant to the terms of this Agreement.
PR\79666\1
-67-
"Business Day" means any day other than a Saturday,
Sunday, public holiday under the laws of the Commonwealth of
Pennsylvania, or other day on which banking institutions are
authorized or obligated to close in the city in which the
Administrative Agent's Domestic Lending Office is located
provided, however, that whether or not expressly stated in this
Agreement or other Loan Documents, when "Business Day" is used
with respect to any LIBO Rate Loan, such Business Day must also
be a Eurodollar Business Day.
"Capital Expenditures", with respect to any Person,
means, for any period, all expenditures (whether paid in cash or
accrued as liabilities) of such Person during such period which
are, or should be, classified as capital expenditures in
accordance with GAAP.
"Capitalized Lease" means at any time any lease which
is, or should be, capitalized on the balance sheet of the lessee
at such time in accordance with GAAP.
"Capitalized Lease Obligation" of any Person at any
time means the aggregate amount which is, or should be, reported
as a liability on the balance sheet of such Person at such time
as lessee under a Capitalized Lease in accordance with GAAP.
"Cash Equivalent Investments" means any of the
following: (i) full faith and credit obligations of the United
States of America, or fully guaranteed as to interest and
principal by the full faith and credit of the United States of
America, maturing in not more than one year from the date such
investment is made; (ii) time deposits and certificates of
deposit having a final maturity of not more than one year after
the date of issuance thereof of any commercial bank incorporated
under the laws of the United States of America or any state
thereof or the District of Columbia, which bank is a member of
the Federal Reserve System and has a combined capital and surplus
of not less than $1,000,000,000.00 and with a senior unsecured
debt credit rating of at least "A" by Moody's Investors Service,
Inc. or "A" by Standard & Poor's Ratings Services;
(iii) commercial paper of companies, banks, trust companies or
national banking associations (in each case excluding J & J and
its Affiliates) incorporated or doing business under the laws of
the United States or one of the States thereof, in each case
having a remaining term until maturity of not more than 180 days
from the date such investment is made and rated at least P-1 by
Moody's Investors Service, Inc. or at least A-1 by Standard &
Poor's Ratings Services; and (iv) repurchase agreements with any
financial institution having combined capital and surplus of not
less than $1,000,000,000.00 with a term of not more than seven
days for underlying securities of the type referred to in clause
(i) above.
"Cash Flow", with respect to any Person, for any
period, means (a) Net Income of such Person plus (b) each of the
following to the extent deducted in determining Net Income: (i)
depreciation expense, and (ii) amortization expense in each case
for such period.
"CCFC" has the meaning ascribed to such term in the
recitals hereof.
PR\79666\1
-68-
"CERCLA" means the Comprehensive Environmental
Response, Compensation and Liability Act, as amended, and any
successor statute of similar import, and regulations thereunder,
in each case as in effect from time to time.
"CERCLIS" means the Comprehensive Environmental
Response, Compensation and Liability Information System List, as
the same may be amended from time to time.
"Closing Date" means the date that the initial Loans
are made hereunder.
"COBRA Violation" means any violation of the
"continuation coverage requirements" of "group health plans" of
former S162(k) of the Code (as in effect for tax years beginning
on or before December 31, 1988) and of S4980B of the Code (as in
effect for tax years beginning on or after January 1, 1989) and
Part 6 of Subtitle B of Title I of ERISA.
"Code" means the Internal Revenue Code of 1986, as
amended, and any successor statute of similar import, and
regulations thereunder, in each case as in effect from time to
time, and the Treasury regulations thereunder.
"Collateral" means (a) the cash collateral account, if
any, in respect of Letters of Credit from time to time and (b)
the collateral subject to, or purported to be subject to, the
Liens of the Pledge Agreement, from time to time.
"Commitment" means, with respect to any Lender, the
obligation of such Lender to make Loans pursuant to the terms of
this Agreement. "Commitment" means, with respect to all Lender
Parties, the sum of each Lender Party's Commitment.
"Controlled Group" means a group of employers, of which
any Borrower is a member and which group constitutes:
(a) A controlled group of corporations (as
defined in S414(b) of the Code);
(b) Trades or businesses (whether or not
incorporated) which are under common control (as defined in
S414(c) of the Code);
(c) Trades or businesses (whether or not
incorporated) which constitute an affiliated service group (as
defined in S414(m) of the Code); or
(d) Any other entity required to be aggregated
with any Borrower pursuant to S414(o) of the Code.
"CoreStates" has the meaning ascribed to such term in
the preamble hereof.
"Default" means any event or condition which with
notice, passage of time or both, would constitute an Event of
Default.
"Default Rate" means, with respect to any amounts
payable hereunder or under the other Loan Documents, a rate equal
to the sum of (a) two percent (2%) per annum plus (b) the
interest rate otherwise in effect with respect to such amounts
or, if no such rate is otherwise in effect with respect to such
PR\79666\1
-69-
amounts, a rate equal to the sum of (i) the Prime Rate plus (ii)
two percent (2%).
"Defined Benefit Pension Plan" means a defined benefit
plan (other than a Multiemployer Plan) as defined in S3(35) of
ERISA which is maintained by any Borrower or any member of its
Controlled Group.
"Defined Contribution Plan" means an individual account
plan (other than a Multiemployer Plan) as defined in S3(34) of
ERISA which is maintained by any Borrower or any member of its
Controlled Group.
"Dollar," "Dollars" and the symbol "$" means lawful
money of the United States of America.
"Domestic Lending Office" means, with respect to any
Lender (i) the office designated as such on the signature page
hereof, or (ii) the branch or office of such Lender designated,
from time to time, by such Lender in a notice to the
Administrative Agent and J & J.
"EBITDA" means Net Income before (a) Interest Expense,
(b) income taxes, (c) depreciation and (d) amortization.
"Eligible Institution" means (i) a Lender; (ii) an
Affiliate of a Lender; (iii) a commercial bank organized under
the laws of the United States, or any State thereof, and having a
combined capital and surplus of at least $1,000,000,000.00; (iv)
a savings and loan association or savings bank organized under
the laws of the United States, or any State thereof, and having a
combined capital and surplus of at least $1,000,000,000.00; (v) a
commercial bank organized under the laws of any other country
that is a member of the Organization for Economic Cooperation and
Development or has concluded special lending arrangements with
the International Monetary Fund associated with its General
Arrangements to Borrow or under the laws of a political
subdivision of any such country, and having a combined capital
and surplus of at least $1,000,000,000.00, so long as such bank
is acting through a branch or agency located in the United
States; and (vi) a finance company, insurance company or other
financial institution or fund (whether a corporation,
partnership, trust or other entity) that is engaged in making,
purchasing or otherwise investing in commercial loans in the
ordinary course of its business and having a combined capital and
surplus or total assets of at least $500,000,000.00 and (vii)
with respect to any Lender that is a fund, any other fund with
assets in excess of $100,000,000.00 that invests in bank loans
and is managed by the same investment advisor as such Lender;
provided, however, that neither any Borrower nor any Affiliate of
a Borrower shall qualify as an Eligible Institution under this
definition.
"Environmental Affiliate" means, with respect to any
Person, any other Person whose liability (contingent or
otherwise) for any Environmental Claim such Person has retained,
assumed or otherwise is liable for (by Law, agreement or
otherwise).
"Environmental Approvals" means any approval, order,
consent, authorization, certificate, license, permit or
validation of, or exemption or other action by, or filing,
PR\79666\1
-70-
recording or registration with, any Governmental Authority
pursuant to or required under any Environmental Law.
"Environmental Claim" means, with respect to any
Person, any action, suit, proceeding, investigation, notice,
claim, complaint, demand, request for information or other
communication (written or oral) by any other Person (including
but not limited to any Governmental Authority, citizens' group or
present or former employee of such Person) alleging, asserting or
claiming any actual or potential (a) violation of any
Environmental Law, (b) liability under any Environmental Law or
(c) liability for investigatory costs, cleanup costs,
governmental response costs, natural resources damages, property
damages, personal injuries, fines or penalties arising out of,
based on or resulting from the presence, or release into the
environment, of any Environmental Concern Materials at any
location, whether or not owned by such Person.
"Environmental Cleanup Site" means any location which
is listed or proposed for listing on the National Priorities List
(as established under CERCLA), on CERCLIS or on any similar state
list of sites requiring investigation or cleanup, or which is the
subject of any pending or threatened action, suit, proceeding or
investigation related to or arising from any alleged violation of
any Environmental Law.
"Environmental Concern Materials" means (a) any
flammable substance, explosive, radioactive material, hazardous
material, hazardous waste, toxic substance, solid waste,
pollutant, contaminant or any related material, raw material,
substance, product or by-product of any substance specified in or
regulated or otherwise affected by any Environmental Law
(including but not limited to any "hazardous substance" as
defined in CERCLA or any similar state Law), (b) any toxic
chemical or other substance from or related to industrial,
commercial or institutional activities, and (c) asbestos,
gasoline, diesel fuel, motor oil, waste and used oil, heating oil
and other petroleum products or compounds, polychlorinated
biphenyls, radon and urea formaldehyde.
"Environmental Law" means any Law, whether now existing
or subsequently enacted or amended, relating to (a) pollution or
protection of the environment, including natural resources, (b)
exposure of Persons, including but not limited to employees, to
Environmental Concern Materials, (c) protection of the public
health or welfare from the effects of products, by-products,
wastes, emissions, discharges or releases of Environmental
Concern Materials or (d) regulation of the manufacture, use or
introduction into commerce of Environmental Concern Materials
including their manufacture, formulation, packaging, labeling,
distribution, transportation, handling, storage or disposal.
"Environmental Law" shall also include any Environmental Approval
and the terms and conditions thereof.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time, and the regulations
thereunder.
"Eurodollar Business Day" means any Business Day on
which dealings in Dollar deposits are carried on in the London
PR\79666\1
-71-
interbank market and on which commercial banks are open for
domestic and international business (include dealings in Dollar
deposits) in London, England.
"Eurodollar Lending Office" means, with respect to any
Lender, the branch or office of such Lender designated by such
Person on the signature page hereof or in a notice to the
Administrative Agent and J & J.
"Event of Default" means any of the Events of Default
described in Section 8.1 hereof.
"Federal Funds Rate" for any day means the rate per
annum determined by the Administrative Agent (which determination
shall be conclusive) to be the rate per annum announced by the
Federal Reserve Bank of New York on such day as being the
weighted average of the rates on overnight Federal funds
transactions arranged by federal funds brokers on the previous
trading day, or, if such Federal Reserve Bank does not announce
such rate on any day, the rate for the last day on which such
rate was announced.
"Fixed Charge Coverage Ratio" means, as of any date of
determination, the result of:
(a) Cash Flow of the Borrowers, on a consolidated
basis, for the four fiscal quarters ending on, or
most recently prior to, such date of determination
divided by
(b) current maturities of long term debt as
determined in accordance with GAAP.
"GAAP" has the meaning set forth in Section 11.3
hereof.
"Governmental Authority" means any government or
political subdivision or any agency, authority, bureau, central
bank, commission, department or instrumentality of either, or any
court, tribunal, grand jury or arbitrator, in each case whether
foreign or domestic.
"Guaranty" means, with respect to any Person (a
"Guarantor"), any contractual or other obligation, contingent or
otherwise, of such Person to pay any Indebtedness or other
obligation of any other Person or to otherwise protect the holder
of any such Indebtedness or other obligation against loss
(whether such obligation arises by agreement to pay, to keep
well, to purchase assets, goods, securities or services or
otherwise) provided, however, that the term "Guaranty" shall not
include an endorsement for collection or deposit in the ordinary
course of business. The term, "Guaranty," when used as a verb
has the correlative meaning.
"Indebtedness" of any Person means (without
duplication):
(a) all obligations on account of money borrowed
by, or credit extended to or on behalf of, or for or on account
of deposits with or advances to, such Person;
(b) all obligations of such Person evidenced by
bonds, debentures, notes or similar instruments;
PR\79666\1
-72-
(c) all obligations of such Person for the
deferred purchase price of property or services;
(d) all obligations secured by a Lien on property
owned by such Person (whether or not assumed) provided, however,
for purposes of determining the amount of such Indebtedness under
this clause (d), the amount of any such non-recourse Indebtedness
shall be limited to the lesser of (i) the fair market value of
the asset subject to such Lien and (ii) the amount of such
Indebtedness;
(e) all obligations of such Person under
Capitalized Leases (without regard to any limitation of the
rights and remedies of the holder of such Lien or the lessor
under such Capitalized Lease to repossession or sale of such
property);
(f) the face amount of all letters of credit
issued for the account of such Person and, without duplication,
the unreimbursed amount of all drafts drawn thereunder, and all
other obligations of such Person associated with such letters of
credit or draws thereon;
(g) all obligations of such Person with respect
to acceptances or similar obligations issued for the account of
such Person;
(h) all obligations of such Person under a
product financing or similar arrangement described in paragraph 8
of FASB Statement of Accounting Standards No. 49 or any similar
requirement of GAAP;
(i) all obligations of such Person under any
Interest Rate Hedging Agreement or any currency protection
agreement, currency future, option or swap or other currency
hedge agreement;
(j) all Guaranties of such Person; and
(k) all obligations of such Person under, or in
respect of, any Synthetic Leases.
Indebtedness shall not include accounts payable to trade
creditors arising out of purchases of goods or services in the
ordinary course of business, provided that (i) such accounts
payable are payable on usual and customary trade terms, and (ii)
such accounts payable are not overdue by more than 60 days
according to the original terms of sale except (if no
foreclosure, distraint, levy, sale or similar proceeding shall
have been commenced) where such payments are being contested in
good faith by appropriate proceedings diligently conducted and
subject to such reserves or other appropriate provisions as may
be required by GAAP.
"Indemnified Parties" means, collectively, the Lender
Parties and their respective Affiliates and (without duplication)
the directors, trustees, officers, employees, attorneys and
agents of each of the foregoing.
"Interest Expense" means, for any Person, for any
period, the sum (without duplication) of (a) all interest accrued
(or accreted) on Indebtedness of such Person during such period
whether or not actually paid (excluding any obligations under any
Synthetic Leases) plus (b) the net amount accrued under any
PR\79666\1
-73-
Interest Rate Hedging Agreements (or less the net amount
receivable thereunder) during such period.
"Interest Period" means with respect to any LIBO Rate
Loan, (a) initially, the period commencing on the borrowing or
conversion date, as the case may be, and ending one, two, three
or six months thereafter as selected by the Borrowers pursuant to
Section 1.8 above and (b) thereafter, each period commencing on
the day after the last day of the preceding Interest Period and
ending one, two, three or six months thereafter, as selected by
the Borrower pursuant to Section 1.8 above provided, however, if
any such Interest Period would otherwise end on a day which is
not a Eurodollar Business Day, such Interest Period shall be
extended to the next succeeding Eurodollar Business Day unless
the result of such extension would be to carry such Interest
Period into another calendar month in which event such Interest
Period shall end on the immediately preceding Eurodollar Business
Day and provided, further, if any such Interest Period begins on
a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period (as may be the
case with an Interest Period commencing at the end of a calendar
month) the Interest Period shall end on the last Eurodollar
Business Day of the relevant calendar month.
"Interest Rate Hedging Agreement" means any rate swap,
cap or collar agreement with a term as may be acceptable to the
Lenders to which any or all of the Borrowers are party and which
is on terms and conditions satisfactory to the Lenders.
"Investments" has the meaning set forth in Section 7.3
hereof.
"IUC" has the meaning ascribed to it in the recitals
hereof.
"J & J" has the meaning ascribed to such term in the
preamble of this Agreement.
"Joinder Effective Date" means the date that any
Joining Subsidiary becomes a Borrower hereunder pursuant to
Section 5.10.
"Joinder Supplement" has the meaning set forth in
Schedule 5.10 hereto.
"Joining Subsidiary" has the meaning set forth in
Section 5.10 hereof.
"Law" means any law (including common law),
constitution, statute, treaty, convention, regulation, rule,
ordinance, order, injunction, writ, decree or award of any
Governmental Authority.
"Lender" has the meaning ascribed to such term in the
preamble hereto.
"Lender Parties" means, collectively, the Lenders and
the Administrative Agent.
"Leverage Ratio" means as of any date of determination
the ratio of total liabilities (as determined in accordance with
GAAP) divided by Tangible Net Worth.
"LIBO Rate" means the rate per annum determined by the
Administrative Agent by dividing (the resulting quotient to be
rounded upward to the nearest 1/100 of 1%) (a) the rate of
interest (which shall be the same for each day in such Interest
PR\79666\1
-74-
Period) determined in good faith by the Administrative Agent
(which determination shall be conclusive) to be the average of
the rates per annum for deposits in Dollars offered to major
money center banks in the London interbank market at
approximately 11:00 a.m., London time, two Eurodollar Business
Days prior to the first day of the applicable Interest Period for
delivery on the first day of such Interest Period in similar
amounts and maturities as the proposed LIBO Rate Loan by (b) a
number equal to 1.0 minus the Reserve Percentage. "Reserve
Percentage" for any day means the percentage (expressed as a
decimal, rounded upward to the nearest 1/100 of 1%), as
determined in good faith by the Administrative Agent (which
determination shall be conclusive), which is in effect on such
day as prescribed by the Board of Governors of the Federal
Reserve System representing the maximum reserve requirement
(including supplemental, marginal and emergency reserve
requirements) with respect to eurocurrency funding (currently
referred to as "Eurocurrency liabilities") of a member bank in
such System. The LIBO Rate shall be adjusted automatically as
of the effective date of each change in the Reserve Percentage.
"LIBO Rate Loan" means a Loan bearing interest at the
per annum rate of the LIBO Rate plus Applicable Margin.
"Licenses" means any and all licenses, permits,
franchises, rights to conduct business, approvals by a
Governmental Authority or otherwise, consents, qualifications,
operating authority, and/or any other authorizations.
"Lien" means any mortgage, deed of trust, pledge, lien,
security interest, charge or other encumbrance or security
arrangement of any nature whatsoever, including any conditional
sale or title retention arrangement, and any assignment, deposit
arrangement or lease intended as, or having the effect of,
security.
"Limitation" means a revocation, suspension,
termination, impairment, probation, limitation, non-renewal,
forfeiture, declaration of ineligibility, and/or loss of any
other rights.
"Loans" means, collectively, the Term Loans and the RC
Loans. "Loan" means any of the Loans.
"Loan Documents" means this Agreement, the Notes, each
Joinder Supplement and all other agreements and instruments
executed in connection herewith or therewith, in each case as the
same may be amended, modified or supplemented from time to time.
"Loan Obligations" means all obligations, from time to
time, of any Borrower to any Lender Party or other Indemnified
Party under, or arising out of, this Agreement or any Loan
Document whether such obligations are direct or indirect,
absolute or contingent, due or to become due, now or hereafter
arising, (specifically including obligations arising or accruing
after the commencement of any bankruptcy, insolvency, or similar
proceeding with respect to any Borrower, or which would have
accrued but for the commencement of such proceeding even if the
claim is not allowed in such proceeding under applicable law).
"Material Adverse Effect" means (a) a material adverse
effect on the business, operations, condition (financial or
PR\79666\1
-75-
otherwise), properties or prospects of J & J or of any other
Borrowers, or (b) an adverse effect on the legality, validity,
binding effect or enforceability of any Loan Document, or the
ability of the Administrative Agent or any Lender Party to
enforce any rights or remedies under or in connection with any
Loan Document.
"Maturity Date" means the later of the RC Maturity Date
or the Term Loan Maturity Date, or, as the context may require,
the applicable maturity date for a specified Loan.
"Mellon" has the meaning ascribed to such term in the
preamble hereof.
"Monthly Payment Date" means the last Business Day of
each month.
"J & J Group" has the meaning ascribed to such term in
Section 6.1 hereof.
"Multiemployer Plan" means such term in S4001(a)(3) of
ERISA.
"Net Income" means, with respect to any Person, for
any period the net earnings (or loss) after taxes of such Person
for such period less extraordinary gains, plus extraordinary non-
cash losses.
"NIC" has the meaning ascribed to such term in the
recitals hereof.
"NIC Note" has the meaning ascribed to such term in the
recitals hereof.
"Non-U.S. Lender" means any Lender that is not a United
States Person.
"Notes" means, collectively, the Term Notes and the RC
Notes. A "Note" means any of the Notes.
"Officer's Compliance Certificate" means a certificate,
as of a specified date, of the chief financial officer or
controller of J & J in substantially the form of Exhibit E hereto
as to each of the following: (a) the absence of any Event of
Default or Default on such date, (b) the truth of the
representations and warranties herein and in the other Loan
Documents as of such date, and (c) with the financial covenants
set forth in Article 6 and the financial limitations set forth in
Sections 7.1(d) and 7.4(c).
"PBGC" means the Pension Benefit Guaranty Corporation
or any entity succeeding to any or all of its functions under
ERISA.
"Pension Plan" means a pension plan (as defined in
S3(2) of ERISA) which is subject to Part 3 of Subtitle B of Title
I of ERISA or subject to S412 of the Code and maintained by any
Borrower or any member of its Controlled Group.
"Permitted Liens" has the meaning set forth in Section
7.2 above.
"Person" means an individual, corporation, partnership,
trust, unincorporated association, limited liability company,
joint venture, joint-stock company, Governmental Authority or any
other entity.
"Plan" means an employee benefit plan (other than a
Multiemployer Plan) as defined in S3(3) of ERISA which is either
(1) maintained by any Borrower or any member of its Controlled
PR\79666\1
-76-
Group, or (2) maintained pursuant to a collective bargaining
agreement or any other arrangement under which more than one
employer makes contributions and to which any Borrower or any
member of its Controlled Group is then making or accruing an
obligation to make contributions or has ever been obligated to
make contributions.
"Premises" has the meaning set forth in Section 12.12
hereof.
"Prime Rate" means the greater of (A) the interest rate
per annum announced from time to time by the Administrative Agent
as its prime rate or (B) the Federal Funds Rate plus .50%. The
Prime Rate may be greater or less than other interest rates
charged by the Administrative Agent to other borrowers.
"Prime Rate Loan" means any Loan bearing interest at
the Prime Rate.
"Prohibited Transaction" has the meaning given to such
term in S406 of ERISA or S4975(c) of the Code.
"Quarterly Payment Date" means the last Business Day of
each December, March, June and September.
"RC Commitment" means, with respect to any Lender, (a)
the amount set forth opposite such Lender's name under the
heading "RC Commitment" on Schedule 1.1 hereto or, in the case of
a Lender that becomes a Lender pursuant to an assignment, the
amount of the assignor's RC Commitment assigned to such Lender,
in either case as the same may be reduced from time to time
pursuant to Section 1.7 above or increased or reduced from time
to time pursuant to assignments in accordance with Section 12.9
below, or (b) as the context may require, the obligation of such
Lender to make RC Loans in an aggregate unpaid principal amount
not exceeding such amount; and "RC Commitment" means with respect
to all Lenders, the sum of each Lender's RC Commitment.
"RC Loans" has the meaning ascribed to such term in
Section 1.1 (b) hereof.
"RC Maturity Date" means December 31, 2000.
"RC Note" means each promissory note of the Borrowers
issued to a Lender relating to such Lender's RC Loans and RC
Commitments substantially in the form of Exhibit A-1 hereto,
together with any allonges thereto, from time to time, and any
promissory note issued in substitution therefor pursuant to the
terms hereof, together with all extensions, renewals,
refinancings or refundings thereof in whole or part, in each case
as the same may be amended, modified, restated or supplemented
from time to time.
"Register" has the meaning ascribed to such term in
Section 9.8 hereof.
"Registered Lender" has the meaning ascribed to such
term in Section 1.14 hereof.
"Registered Note" has the meaning ascribed to such term
in Section 1.14 hereof.
"Regulatory Change" means any applicable law,
interpretation, directive, request or guideline (whether or not
having the force of law), or any change therein or in the
administration or enforcement thereof, that becomes effective or
PR\79666\1
-77-
is implemented or first required or expected to be complied with
after the Agreement Date (including any applicable law that shall
have become such as the result of any act or omission of the
Borrowers or any of their Affiliates, without regard to when such
applicable law shall have been enacted or implemented), whether
the same is (a) the result of an enactment by a government or any
agency or political subdivision thereof, a determination of a
court or regulatory authority or otherwise or (b) enacted,
adopted, issued or proposed before or after the Agreement Date,
including any such that imposes, increases or modifies any Tax,
reserve requirement, insurance charge, special deposit
requirement, assessment or capital adequacy requirement, but
excluding any such that imposes, increases or modifies any Bank
Tax.
"Rental Expense" means, with respect to any Person for
any period, the aggregate rental obligations of such Person,
payable in respect of any leases (including Synthetic Leases but
excluding Capitalized Leases) during such period, but in any case
including obligations for taxes, insurance, maintenance and
similar costs which the lessee is obligated to pay under the
terms of such leases and which are attributable to the leases for
such period (whether such amounts are accrued or paid during such
period).
"Reorganization" has the meaning ascribed to such term
in ERISA.
"Reportable Event" has the meaning ascribed to such
term in S4043(b) of ERISA.
"Required Lenders" means, as of any date, Lenders
otherwise eligible to vote pursuant to the terms of this
Agreement holding, in the aggregate, at least 51% of the
aggregate outstanding Loans and available Commitments so eligible
to vote; provided that "Required Lenders" must include Mellon
and/or CoreStates as long as either remains a Lender.
"Responsible Officer" of a Person means the President,
the Secretary, the Chief Executive Officer, any Vice President,
the Controller, the Treasurer or the Chief Financial Officer of
such Person.
"Subsidiary" of a Person at any time means:
(a) any corporation of which a majority (by
number of shares or number of votes) of any class of
outstanding capital stock normally entitled to vote for
the election of one or more directors (regardless of
any contingency which does or may suspend or dilute the
voting rights of such class) is at such time owned
directly or indirectly, beneficially or of record, by
such Person or one or more Subsidiaries of such Person;
(b) any trust of which a majority of the
beneficial interest is at such time owned directly or
indirectly, beneficially or of record, by such Person
or one or more Subsidiaries of such Person;
(c) any partnership, limited liability company,
joint venture or other entity of which ownership
interests having ordinary voting power to elect a
majority of the board of directors or other Persons
PR\79666\1
-78-
performing similar functions are at such time owned
directly or indirectly, beneficially or of record, by,
or which is otherwise controlled directly, indirectly
or through one or more intermediaries by, such Person
or one or more Subsidiaries of such Person; or
(d) any entity which is consolidated with such
Person for financial reporting purposes.
"Synthetic Lease" means any lease (other than a
Capitalized Lease) wherein the lessee is treated (or purported to
be treated) as the owner of the leased property for income tax
purposes.
"Tangible Net Worth" of a Person as of a certain date
means the value of such Person's tangible assets less liabilities
all as of such date, as determined in accordance with GAAP.
"Tax" means any federal, state, local or foreign tax
assessment or other governmental charge or levy (including any
withholding tax) upon a Person or upon its assets, revenues,
income or profits.
"Term Loan Commitment" means, (a) with respect to any
Lender, (i) at any time prior to the Closing Date, (A) the amount
set forth opposite such Lender's name under the heading "Term
Loan Commitment" on Schedule 1.1 hereto or, in the case of a
Lender that becomes a Lender pursuant to an assignment, the
amount of the assignor's Term Loan Commitment assigned to such
Lender, in either case as the same may be increased or reduced
from time to time pursuant to assignments in accordance with
Section 12.9 or (B) as the context may require, the obligation of
such Lender to make Term Loans in an aggregate unpaid principal
amount not exceeding such amount, and (ii) thereafter, zero; and
(b) with respect to all Lenders, the sum of each Lender's Term
Loan Commitment.
"Term Loan Maturity Date" means December 31, 2002,
provided that (a) if J & J, IUC or any of their Affiliates fail
to purchase all of the capital stock of NIC by December 31, 1997,
then "Term Loan Maturity Date" shall mean such date, or (b) if
the Assignment is terminated prior to the date referred to in
clause (a) without J & J, IUC or any of their Affiliates having
acquired all of the capital stock of NIC, then "Term Loan
Maturity Date" shall mean the date on which the Assignment is
terminated.
"Term Loans" has the meaning ascribed to such term in
Section 1.1(a) hereof.
"Term Note" means each promissory note of the Borrowers
issued to a Lender relating to such Lender's Term Loans and Term
Loan Commitment substantially in the form of Exhibit A-2 hereto,
together with any allonges thereto from time to time and any
promissory note issued in substitution therefor pursuant to the
terms hereof, together with all extensions, renewals,
refinancings or refundings thereof in whole or part, in each case
as the same may be amended, modified, restated or supplemented
from time to time.
"Third Party Claims" has the meaning set forth in
Section 12.12 hereof.
PR\79666\1
-79-
"Total Funded Indebtedness" means the aggregate amount
of consolidated Indebtedness (including the current portion
thereof) of J & J and its Subsidiaries (including all
Indebtedness consisting of Capitalized Lease Obligations,
Synthetic Leases, Guaranties and letter of credit reimbursement
obligations).
"Total Funded Indebtedness/EBITDA Ratio" means, as of
any date of determination, the ratio of (a) Total Funded
Indebtedness as of such date of determination, divided by (b)
EBITDA for the four fiscal quarters ended on, or most recently
prior to, such date of determination.
"Transaction Documents " means each of the material
documents as may exist from time to time with such changes
thereto as are permitted by the terms of this Agreement
respecting (i) the purchase of the NIC Note, (ii) the
consummation of the transactions contemplated in the Assignment,
(iii) the acquisition by J & J, IUC or their Affiliates of the
capital stock of NIC, and (iv) related matters.
"Type" means with respect to Loans, any of the
following, each of which shall be deemed to be a different "Type"
of Loan: Prime Rate Loans, LIBO Rate Loans having a one-month
Interest Period commencing on a specified date, LIBO Rate Loans
having a two-month Interest Period commencing on a specified
date, LIBO Rate Loans having a three-month Interest Period
commencing on a specified date, and LIBO Rate Loans having a six-
month Interest Period commencing on a specified date.
"United States Person" has the meaning ascribed to such
term in Section 1.13 hereof.
"Withdrawal Liability" has the meaning given to such
term in S4201 of ERISA.
11.2 CONSTRUCTION. In this Agreement and each other Loan
Document, unless the context otherwise clearly requires,
(a) references to the plural include the singular, the
singular the plural and the part the whole;
(b) "or" has the inclusive meaning represented by the
phrase "and/or;"
(c) the terms "property" and "assets" each include all
properties and assets of any kind or nature, tangible or
intangible, real, personal or mixed, now existing or hereafter
acquired;
(d) the words "hereof," "herein" and "hereunder" (and
similar terms) in this Agreement or any other Loan Document refer
to this Agreement or such other Loan Document, as the case may
be, as a whole and not to any particular provision of this
Agreement or such other Loan Document;
(e) the words "includes" and "including" (and similar
terms) in this Agreement or any other Loan Document mean
PR\79666\1
-80-
"includes, without limitation" and "including, without
limitation," respectively whether or not stated; and
(f) references to "determination" (and similar terms)
by any Lender Party include good faith estimates by such Lender
Party (in the case of quantitative determinations) and good faith
beliefs by such Lender Party (in the case of qualitative
determinations).
No doctrine of construction of ambiguities in agreements or
instruments against the interests of the party controlling the
drafting thereof shall apply to this Agreement or any other Loan
Document. The section and other headings contained in this
Agreement and in each other Loan Document, and any tables of
contents contained herein or therein, are for reference purposes
only and shall not affect the construction or interpretation of
this Agreement or such other Loan Document in any respect.
Whenever this Agreement requires the delivery of financial
projections, it is understood that the projections shall be made
in good faith, consistent with the Loan Documents and based on J
& J's reasonable judgment as to the anticipated financial
performance and results of operations. However, any such
financial projections shall not constitute a representation or
warranty that such future financial performance or results of
operations will in fact be achieved.
11.3 ACCOUNTING PRINCIPLES.
(a) As used herein, "GAAP" shall mean generally
accepted accounting principles (other than as set forth herein as
to consolidation) in the United States, applied on a basis
consistent with the principles used in preparing the financial
statements of J & J and its consolidated Subsidiaries as of
December 31, 1996 and for the fiscal year then ended. When the
word "consolidated" is used in this Agreement, it shall be used
in a manner consistent with generally accepted accounting
principles in the United States except that such principles
relating to what entities shall be consolidated shall be
superseded by any terms of this Agreement which designate what
entities shall be consolidated for purposes relating hereto.
(b) Except as otherwise provided in this Agreement,
all computations and determinations as to accounting or financial
matters shall be made, and all financial statements to be
delivered pursuant to this Agreement shall be prepared, in
accordance with GAAP and all accounting or financial terms shall
have the meanings ascribed to such terms by GAAP.
PR\79666\1
-81-
ARTICLE 12
MISCELLANEOUS
12.1 NOTICES. Unless otherwise expressly provided under
this Agreement all notices, requests, demands, directions and
other communications (collectively "notices") given to or made
upon any party under the provisions of this Agreement (and unless
otherwise specified, in each other Loan Document) shall be by
telephone (immediately confirmed in writing) or in writing
(including facsimile communication) and if in writing shall be
delivered by hand, nationally recognized overnight courier or
U.S. mail or sent by facsimile to the respective parties at the
addresses and numbers set forth under their respective names on
the signature pages of this Agreement or in accordance with any
subsequent unrevoked written direction from any party to the
others. All notices shall, except as otherwise expressly
provided in this Agreement, be effective (a) in the case of
facsimile, when received, (b) in the case of hand-delivered
notice, when hand delivered, (c) in the case of telephone, when
telephoned, provided, however, that in order to be effective
unless otherwise expressly provided, telephonic notices must be
confirmed in writing no later than the next day by letter or
facsimile, (d) if given by U.S. mail, the day after such
communication is deposited in the mails with overnight first
class postage prepaid, return receipt requested, and (e) if given
by any other means (including by air courier), when delivered;
provided, further, that notices to the Administrative Agent shall
not be effective until received. Any Lender giving any notice to
the Borrowers shall simultaneously send a copy of such notice to
the Administrative Agent, and the Administrative Agent shall
promptly notify the other Lenders of the receipt by it of any
such notice. Except as otherwise provided in this Agreement, in
the event of a discrepancy between any telephonic or written
notice, the written notice shall control.
12.2 PRIOR UNDERSTANDINGS; ENTIRE AGREEMENT. This Agreement
and the other Loan Documents supersede all prior and
contemporaneous understandings and agreements, whether written or
oral, among the parties hereto relating to the transactions
provided for herein and therein except as expressly provided
otherwise (e.g., certain fee agreements and fee arrangements with
the Administrative Agent). This Agreement and the other Loan
Documents represent the entire agreement between the parties to
this Agreement with respect to the transactions contemplated
hereby or thereby and, except as expressly provided herein or in
the other Loan Documents, shall not be affected by reference to
any other documents.
PR\79666\1
-82-
12.3 SEVERABILITY. Every provision of this Agreement and
each of the other Loan Documents is intended to be severable, and
if any term or provision of this Agreement or any of the other
Loan Documents shall be invalid, illegal or unenforceable for any
reason, the validity, legality and enforceability of the
remaining provisions shall not be affected or impaired thereby,
and any invalidity, illegality or unenforceability in any
jurisdiction shall not affect the validity, legality or
enforceability of any such term or provision in any other
jurisdiction. If any provision of this Agreement shall be held
invalid or unenforceable in whole or in part in any jurisdiction,
this Agreement shall, as to such jurisdiction, be deemed amended
to modify or delete, as necessary, the offending provision or
provisions and to alter the bounds thereof in order to render it
or them valid and enforceable to the maximum extent permitted by
applicable Law, without in any manner affecting the validity or
enforceability of such provision or provisions in any other
jurisdiction or the remaining provisions hereof in any
jurisdiction.
12.4 DESCRIPTIVE HEADINGS. The descriptive headings of the
several sections of this Agreement are inserted for convenience
only and shall not affect the meaning or construction of any of
the provisions of this Agreement.
12.5 GOVERNING LAW. This Agreement and the rights and
obligations of the parties under this Agreement and under the
other Loan Documents shall be construed in accordance with and
shall be governed by the laws of the State of New Jersey.
12.6 NON-MERGER OF REMEDIES. The covenants and obligations
of the Borrowers and the rights and remedies of the
Administrative Agent and other Lender Parties hereunder and under
the other Loan Documents shall not merge with or be extinguished
by the entry of a judgment hereunder or thereunder, and such
covenants, obligations, rights and remedies shall survive any
entry of a judgment until payment in full of the Loan Obligations
and termination of the Commitment. All obligations under the
Loan Documents shall continue to apply with respect to and during
the collection of amounts due under the Loan Documents or the
proof and allowability of any claim arising under this Agreement
or any other Loan Document, whether in bankruptcy or receivership
proceedings or otherwise, and in any workout, restructuring or in
connection with the protection, preservation, exercise or
enforcement of any of the terms of this Agreement or of any
rights under this Agreement or under any other Loan Document or
in connection with any foreclosure, collection or bankruptcy
proceedings. Without limiting the generality of the foregoing,
PR\79666\1
-83-
post-judgment interest rate shall be the interest rate provided
in paragraph (d) of Section 1.8 (Default Rate) above.
12.7 NO IMPLIED WAIVER; CUMULATIVE REMEDIES. No course of
dealing and no delay or failure of the Administrative Agent or
any other Lender Party in exercising any right, power or
privilege under this Agreement or any other Loan Document shall
affect any other or future exercise thereof or exercise of any
other right, power or privilege; nor shall any single or partial
exercise of any such right, power or privilege or any abandonment
or discontinuance of steps to enforce such a right, power or
privilege preclude any further exercise thereof or of any other
right, power or privilege. The rights and remedies of the
Administrative Agent and the other Lender Parties under this
Agreement and any other Loan Document are cumulative and not
exclusive of any rights or remedies which the Administrative
Agent or any other Lender Party would otherwise have hereunder or
thereunder, at law, in equity or otherwise. Any waiver of a
specific default made in accordance with Section 12.8 below shall
be effective only as to such specific default and shall not apply
to any subsequent default.
12.8 AMENDMENTS; WAIVERS. Any term, covenant, agreement or
condition of any Loan Document to which the Lenders (or the
Administrative Agent) are party may be amended, and any right
under the Loan Documents may be waived, if, but only if, such
amendment or waiver is in writing and is signed by the Required
Lenders (or by the Administrative Agent at the direction of the
Required Lenders); provided, however, if the rights and duties of
the Administrative Agent are affected thereby, such amendment or
waiver must be executed by the Administrative Agent; and
provided, further, that no such amendment or waiver shall be
effective unless in writing and signed by each Lender referred to
below, if it would
(a) increase such Lender's Commitment or the
outstanding amount of such Lender's Loans, or
(b) extend the maturity of any Loan held by such
Lender, or the time of any scheduled principal payment of
any Loan of such Lender;
(c) decrease the rate of interest or amount of
fees due to such Lender or decrease the principal amount in
respect of any Loan of such Lender or extend the time of
payment of interest or fees due to such Lender, provided
that the written consent of the Required Lenders, rather
than the consent of all Lenders, shall be sufficient to
waive imposition of the Default Rate,
PR\79666\1
-84-
(d) change the number of Lenders which are
required to consent to any proposed action under this
Agreement before such action may be taken under this
Agreement if such change could cause such Lender to lose its
right to participate in such consent;
and provided, further, that no such amendment or waiver shall be
effective unless in writing and signed by all the Lenders if it
would
(i) amend the definition of "Required
Lenders" or
(ii) release any Borrower of its Loan
Obligations;
provided, however, the Administrative Agent may, without the
consent of any Person, release any Borrower as a court of
competent jurisdiction may direct, and provided further that for
purposes of determining whether" all Lenders", "the Required
Lenders" or "any Lender" has consented to any amendment or
waiver, no effect shall be given to the determination of any
Lender who has lost its right to vote pursuant to Sections
1.3(c), 1.3(e)(ii), or 1.6(e).
Further, the Administrative Agent and the Lenders may amend or
modify the provisions of Article 9 hereof (except for Section 9.9
(Successor Administrative Agent) and Article 10 hereof) without
the need for any consent or approval from the Borrowers, it being
acknowledged that the Borrowers are not third party beneficiaries
of the provisions of said Article 9 (except for Section 9.9
(Successor Administrative Agent) and (y) without the consent of
any Lenders, the Administrative Agent may enter into amendments
and modifications to this Agreement and the other Loan Documents
as necessary or desirable to cure any ambiguities herein or
therein or to add additional Borrowers or add collateral.
12.9 SUCCESSORS AND ASSIGNS
(a) Assignments by the Borrowers. Without the prior
written consent of all of the Lenders, no Borrower may assign any
of its rights or delegate any of its duties or obligations under
this Agreement or any other Loan Document.
(b) Participations. Any Lender may sell
participations to one or more Eligible Institutions of all or a
portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its
Commitment); provided, however, that, with respect to any Lender,
(i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to
the other parties to this Agreement for the performance of such
obligations, (iii) all amounts payable by the Borrowers under
this Agreement shall be determined as if such transferor Lender
had not sold such participation and no participant shall be
entitled to receive any greater amount pursuant to this Agreement
PR\79666\1
-85-
than the transferor Lender would have been entitled to receive in
respect of the amount of the participation transferred by such
transferor Lender to such participant had no such transfer
occurred, (iv) such participant shall agree to be bound by the
provisions of this Agreement and the other Loan Documents, and
(v) the Borrowers, the Administrative Agent and the other Lenders
shall continue to deal solely and directly with such transferor
Lender in connection with such Lender's rights and obligations
under this Agreement, and such Lender shall retain the sole
rights and responsibility vis-a-vis the Borrowers to enforce the
obligations of the Borrowers relating to the Loans including the
right to approve any amendment, modification or waiver of any
provision of this Agreement (except that such Lender may give its
participants the right to direct such Lender to approve or
disapprove any amendment, modification or waiver which would
require such Lender's consent under clause (a) (b), (c), of the
preceding Section 12.8).
(c) Assignments by Lenders. Each Lender may assign to
one or more Eligible Institutions all or a portion of its
interest, rights and obligations under this Agreement (including
all or a portion of its Commitment) and the other Loan Documents;
provided, however, that with respect to any assignment, (i)
unless the assignee is (prior to the effective time of the
assignment) an existing Lender or an Affiliate of an existing
Lender, the Administrative Agent and, if no Event of Default has
occurred and is continuing, J & J (on behalf of the Borrowers)
must give their prior written consent to such assignment (which
consent shall not be unreasonably withheld), (ii) the parties to
each such assignment shall execute and deliver to the
Administrative Agent and, unless an Event of Default has occurred
and is continuing, J & J (on behalf of the Borrowers), for their
acceptance, an Assignment and Acceptance Agreement in
substantially the form attached hereto as Exhibit F (an
"Assignment and Acceptance"), together with (A) any Note subject
to such assignment, and (B) a processing and recordation fee of
$3,500.00. The parties hereto agree that to the extent that the
consent of Borrowers is required by the preceding sentence,
Borrowers shall be deemed to have acted reasonably if Borrowers
withhold consent to a proposed assignment to an assignee who
would be a non-U.S. Lender.
"Partial assignment" as used in clauses (iii) and (iv)
above means any assignment of a Lender's rights and obligations
hereunder except an assignment of all of such Lender's rights and
obligations such that after the assignment such Lender shall have
no Commitment and no interest in any Loans hereunder. Upon
compliance with clauses (i) through (iv) above, from and after
the effective date specified in the relevant Assignment and
Acceptance, (1) the assignee shall be a party to this Agreement
and the other Loan Documents and to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a
Lender under this Agreement and under the other Loan Documents
and (2) the assigning Lender shall, to the extent provided in
PR\79666\1
-86-
such Assignment and Acceptance, be released from its obligations
under this Agreement and the other Loan Documents.
(d) Procedures Respecting Assignment. Upon their
receipt of an Assignment and Acceptance executed by the assignor
and the assignee, subject to the conditions set forth in the
preceding paragraph (c), the Administrative Agent and (unless an
Event of Default shall have occurred and be continuing) J & J (on
behalf of the Borrowers) shall accept such Assignment and
Acceptance. Within thirty (30) days after such Assignment and
Acceptance is signed and accepted by all parties and made
effective, the Borrowers, at their own expense, shall execute and
deliver to the Administrative Agent new Notes in exchange for the
surrendered Notes, each to the order of such assignee in an
amount equal to its portion of the Commitment and Loans, assigned
to it pursuant to such Assignment and Acceptance and new Notes to
the order of the assigning Lender in an amount equal to the
Commitment and Loans retained by it. Such Notes shall be in an
aggregate principal amount equal to the aggregate principal
amount of such surrendered Notes, shall be dated the date of such
surrendered Notes (each assignee shall confirm in the Assignment
and Acceptance that, notwithstanding the date of the new Notes
made in favor of such assignee, such assignee shall have no right
to, or interest in, any fees or interest which shall have accrued
on the Loans prior to the effective date of the Assignment and
Acceptance). Cancelled or replaced Notes shall be returned to the
Borrowers upon the execution of such new Notes.
(e) Assignments to Federal Reserve Bank.
Notwithstanding any of the terms of this Section 12.9, without
the consent of the Administrative Agent and the Borrowers, any
Lender may assign all or any portion of its rights to payments in
connection with this Agreement to a Federal Reserve Bank as
collateral in accordance with Regulation A of the Board of
Governors of the Federal Reserve System. Such assignment shall
not affect any other rights or any obligations of the assigning
Lender
12.10 COUNTERPARTS; PHOTOCOPIED OR TELECOPIED SIGNATURE
PAGES. Any Loan Document may be executed in one or more
counterparts, each of which shall constitute an original, but all
of which together shall constitute one and the same instrument.
Delivery of a photocopy or telecopy of an executed counterpart of
a signature page to any Loan Document shall be as effective as
delivery of a manually executed counterpart of such Loan
Document.
12.11 MAXIMUM LAWFUL INTEREST RATE. Notwithstanding any
provision contained in this Agreement or the Notes or any other
Loan Document, the total liability of the Borrowers for payment
of interest pursuant to this Agreement and the Notes shall not
PR\79666\1
-87-
exceed the maximum amount of such interest permitted by Law to be
charged, collected, or received from the Borrowers, and if any
payment by the Borrowers includes interest in excess of such a
maximum amount, each Lender shall apply such excess to the
reduction of the unpaid principal amount due pursuant to this
Agreement and the Notes, or if none is due, to the other Loan
Obligations, if any, and then such excess shall be refunded to J
& J (on behalf of the Borrowers).
12.12INDEMNIFICATION.
(a) Whether or not any fundings are made under this
Agreement, the Borrowers jointly and severally shall
unconditionally upon demand, pay or reimburse the Administrative
Agent and other Lender Parties for, and indemnify and save the
Administrative Agent, the other Lender Parties and their
respective Affiliates, officers, directors, employees, agents,
attorneys, shareholders and consultants (collectively,
"Indemnitees") harmless from and against, any and all losses,
liabilities, claims, damages, expenses, obligations, penalties,
actions, judgments, suits, costs or disbursements of any kind or
nature whatsoever (including the fees and disbursements of
counsel for such Indemnitee in connection with any investigative,
administrative or judicial proceeding commenced or threatened,
whether or not such Indemnitee shall be designated a party
thereto) that may at any time be imposed on, asserted against or
incurred by such Indemnitee as a result of, or arising out of, or
in any way related to or by reason of, this Agreement or any
other Loan Document, any Acquisition or transaction from time to
time contemplated hereby or by any other Loan Document, or any
transaction actually or proposed to be financed in whole or in
part or directly or indirectly with the proceeds of any Loan, any
transaction contemplated by the Transaction Documents but
excluding any such losses, liabilities, claims, damages,
expenses, obligations, penalties, actions, judgments, suits,
costs or disbursements that the Borrower proves were the result
solely of the gross negligence or willful misconduct of such
Indemnitee, as finally determined by a court of competent
jurisdiction. If and to the extent that the foregoing
obligations of the Borrowers under this paragraph (a), or any
other indemnification obligation of the Borrowers hereunder or
under any other Loan Document are unenforceable for any reason,
the Borrowers hereby agree, jointly and severally, to make the
maximum contribution to the payment and satisfaction of such
obligations which is permissible under applicable Law.
(b) Without limiting the generality of the foregoing,
the Borrowers jointly and severally hereby indemnify and agree to
defend and hold harmless each Indemnitee, from and against any
and all claims, actions, causes of action, liabilities,
penalties, fines, damages, judgments, losses, suits, expenses,
legal or administrative proceedings, interest, costs and expenses
PR\79666\1
-88-
(including court costs and attorneys', consultants' and experts'
fees) arising out of or in any way relating to: (i) the use,
handling, management, production, treatment, processing, storage,
transfer, transportation, disposal, release or threat of release
of any Environmental Concern Material by or on behalf of, any
Borrower or any of its Environmental Affiliates; (ii) the
presence of Environmental Concern Materials on, about, beneath or
arising from any premises owned or occupied by any Borrower or
any of its Environmental Affiliates (herein collectively, the
"Premises"); (iii) the failure of any Borrower or Environmental
Affiliate of a Borrower or any occupant of any Premises to comply
with the Environmental Laws; (iv) any Borrower's breach of any of
the representations, warranties and covenants contained herein or
in any Loan Documents; (v) Regulatory Actions (as hereinafter
defined) and Third Party Claims (as hereinafter defined); or (vi)
the imposition or recording of a Lien against any Premises in
connection with any release at, on or from any Premises or any
activities undertaken on or occurring at any Premises, or arising
from such Premises or pursuant to any Environmental Law. The
Borrowers' indemnity and defense obligations under this section
shall include, whether foreseeable or unforeseeable, any and all
costs related to any remedial action. "Regulatory Action" means
any notice of violation, citation, complaint, request for
information, order, directive, compliance schedule, notice of
claim, consent decree, action, litigation or proceeding brought
or instituted by any governmental authority under or in
connection with any Environmental Law involving any Borrower or
any occupant of any of the Premises or involving any of the
Premises or any activities undertaken on or occurring at any
Premises. "Third Party Claims" means claims by a party (other
than a party to this Agreement and other than Regulatory Actions)
based on negligence, trespass, strict liability, nuisance, toxic
tort or detriment to human health or welfare due to Environmental
Concern Materials on, about, beneath or arising from any Premises
or in any way related to any alleged violation of any
Environmental Laws or any activities undertaken on or occurring
at any Premises.
(c) The indemnities contained herein shall survive
repayment of the Loan Obligations, termination of the Commitment
and satisfaction, release, and discharge of the Loan Documents,
whether through full payment of the Loans, foreclosure, deed in
lieu of foreclosure or otherwise.
(d) The foregoing amounts are in addition to any other
amounts which may be due and payable to the Administrative Agent
and/or the Lenders under this Agreement. A certification by the
Administrative Agent or a Lender hereunder of the amount of
liabilities, losses, costs, expenses, claims and/or charges shall
be conclusive, absent manifest error.
12.13 EXPENSES
PR\79666\1
-89-
Whether or not there shall be any funding hereunder,
the Borrowers agree, jointly and severally, to pay promptly or
cause to be paid promptly and to hold harmless
(i) the Administrative Agent (and after an
Event of Default, and for the period in which the same
shall continue, each Lender Party) against liability
for the payment of all reasonable out-of-pocket costs
and expenses (including but not limited to reasonable
fees and expenses of counsel, including local counsel,
auditors, consulting engineers, appraisers, and all
other professional, accounting, evaluation and
consulting costs) incurred by it from time to time
arising from or relating to (1) the negotiation,
preparation, execution and delivery of this Agreement
and the other Loan Documents, (2) the administration
and performance of this Agreement and the other Loan
Documents, and (3) any requested amendments,
modifications, supplements, waivers or consents
(whether or not ultimately entered into or granted) to
this Agreement or any other Loan Document;
(ii) the Administrative Agent (and, with
respect to clause (2) of this paragraph (ii) after an
Event of Default, and for the period in which the same
shall continue, each Lender Party) against liability
for the payment of all reasonable out-of-pocket costs
and expenses (including but not limited to reasonable
fees and expenses of counsel, including local counsel,
auditors, consulting engineers, appraisers, and all
other professional, accounting, evaluation and
consulting costs) incurred by it from time to time
arising from or relating to the enforcement or
preservation of rights under, or administration of,
this Agreement or any other Loan Document (including
but not limited to any such costs or expenses arising
from or relating to (1) collection or enforcement of an
outstanding Loan, Obligation, and (2) any litigation,
proceeding, dispute, work-out, restructuring or
rescheduling related in any way to this Agreement or
the other Loan Documents); and
(iii) each Lender Party against liability for
all stamp, document, transfer, recording, filing,
registration, search, sales and excise fees and taxes
and all similar impositions now or hereafter determined
by any Lender Party to be payable in connection with
this Agreement or any other Loan Documents.
12.14MAXIMUM AMOUNT OF JOINT AND SEVERAL LIABILITY. To the
extent that applicable Law otherwise would render the full amount
of the joint and several obligations of any Subsidiary of J & J
hereunder and under the other Loan Documents invalid or
PR\79666\1
-90-
unenforceable, such Borrower's obligations hereunder and under
the other Loan Documents shall be limited to the maximum amount
which does not result in such invalidity or unenforceability,
provided, however, that each Borrower's obligations hereunder and
under the other Loan Documents shall be presumptively valid and
enforceable to their fullest extent in accordance with the terms
hereof or thereof, as if this Section 12.14 were not a part of
this Agreement.
12.15AUTHORIZATION OF J & J BY OTHER BORROWERS.
(a) Each of the Borrowers hereby irrevocably
authorizes J & J to give notices, make requests, make payments,
receive payments and notices, give receipts and execute
agreements, make agreements or take any other action whatever on
behalf of such Borrower under and with respect to any Loan
Document and each Borrower shall be bound thereby. This
authorization is coupled with an interest and shall be
irrevocable, and the Administrative Agent and each Lender Party
may rely on any notice, request, information supplied by J & J
and every document executed by J & J, agreement made by J & J or
other action taken by J & J in respect of the Borrowers or any
thereof as if the same were supplied, made or taken by any or all
Borrowers. Without limiting the generality of the foregoing, the
failure of one or more Borrowers to join in the execution of any
writing in connection herewith shall not, unless the context
clearly requires, relieve any such Borrower from obligations in
respect of such writing.
(b) The Borrowers acknowledge that the credit provided
hereunder is on terms more favorable than any Borrower acting
alone would receive and that each Borrower benefits indirectly
from all Loans and Letters of Credit hereunder. J & J and,
subject only to the terms of the preceding paragraph (a), each of
the other Borrowers, shall be jointly and severally liable for
all Loan Obligations, regardless of, inter alia, which Borrower
requested (or received the proceeds of) a particular Loan.
12.16 CERTAIN WAIVERS BY BORROWERS. Each Borrower hereby
waives promptness, diligence, notice of acceptance and any other
notice with respect to any of the Loan Obligations and any
requirement that any Lender Party exhaust any right or take any
action against any other Borrower or any other Person or any
collateral or other direct or indirect security for any of the
Loan Obligations. Without limiting the generality of the
foregoing, each Borrower acknowledges and agrees that the
Administrative Agent or other Lender Party may commence an action
against such Borrower whether or not any action is brought
against any other Borrower or against any collateral and it shall
be no defense to any action brought against any Borrower that the
PR\79666\1
-91-
Lender Parties have failed to bring an action against any other
Borrower or any Collateral.
12.17 SET-OFF. The Borrowers hereby agree that, to the
fullest extent permitted by Law, if any Loan Obligation shall be
due and payable (by acceleration or otherwise), each Lender Party
shall have the right, without notice to any Borrower, to set-off
against and to appropriate and apply to such Loan Obligation any
indebtedness, liability or obligation of any nature owing to any
Borrower by such Lender Party, including but not limited to all
deposits now or hereafter maintained by any Borrower with such
Lender Party. Such right shall exist whether or not such Lender
Party or any other Person shall have given notice or made any
demand to any Borrower or any other Person. The Borrowers
hereby agree that, to the fullest extent permitted by Law, any
participant and any Affiliate of any Lender Party or any
participant shall have the same rights of set-off as a Lender
Party as provided in this Section 12.17. The rights provided by
this Section 12.17 are in addition to all other rights of set-off
and banker's lien and all other rights and remedies which any
Lender Party (or any such participant, or Affiliate) may
otherwise have under this Agreement, any other Loan Document, at
law or in equity, or otherwise.
12.18 SHARING OF COLLECTIONS. The Lender Parties hereby
agree among themselves that if any Lender Party shall receive (by
voluntary payment, realization upon security, charging of
accounts, set-off or from any other source) any amount on account
of the Loan Obligations in greater proportion than any such
amount received by any other Lender Party (based on the relative
amount of each such Lender Party's interest in the Loan
Obligations), then the Lender Party receiving such
proportionately greater payment shall notify each other Lender
Party and the Administrative Agent of such receipt, and equitable
adjustment will be made in the manner stated in this Section
12.18 so that, in effect, all such excess amounts will be shared
ratably among all of the Lender Parties. The Lender Party
receiving such excess amount shall purchase (which it shall be
deemed to have done simultaneously upon the receipt of such
excess amount) for cash from the other Lender Parties a
participation in the applicable Loan Obligations owed to such
other Lender Parties in such amount as shall result in a ratable
sharing by all Lender Parties of such excess amount (and to such
extent the receiving Lender Party shall be a participant). If
all or any portion of such excess amount is thereafter recovered
from the Lender Party making such purchase, such purchase shall
be rescinded and the purchase price restored to the extent of
such recovery, together with interest or other amounts, if any,
required by Law to be paid by the Lender Party making such
purchase. The Borrowers hereby consent to and confirm the
PR\79666\1
-92-
foregoing arrangements. Each participant shall be bound by this
Section 12.18 as fully as if it were a Lender hereunder.
12.19 OTHER LOAN DOCUMENTS. Each Lender acknowledges that on
signing this Agreement it is bound by the terms of the Loan
Documents.
12.20CERTAIN BORROWER ACKNOWLEDGEMENTS. Each Borrower
hereby acknowledges that neither the Administrative Agent nor any
other Lender Party has any fiduciary relationship with, or any
fiduciary duty to any Borrower arising out of or in connection
with this Agreement or any of the other Loan Documents and the
relationship between the Administrative Agent and the other
Lender Parties, on the one hand, and the Borrower, on the other
hand, in connection herewith or therewith is solely that of
debtor and creditor.
12.21 CONSENT TO JURISDICTION, SERVICE AND VENUE; WAIVER OF
JURY TRIAL.
(a) Consent to Jurisdiction. For the purpose of
enforcing payment and performance of the Loan Documents,
including, any payment under the Notes and performance of other
obligations under the Loan Documents, or in any other matter
relating to, or arising out of, the Loan Documents, each of the
Borrowers hereby consents to the jurisdiction and venue of the
courts of the Commonwealth of Pennsylvania or of any federal
court located in such state, waive personal service of any and
all process upon it and consents that all such service of process
be made by certified or registered mail directed to J & J (on
behalf of the applicable Borrowers) at the address provided for
in Section 12.1 and service so made shall be deemed to be
completed upon actual receipt or execution of a receipt by any
Person at such address. Each of the Borrowers hereby waives the
right to contest the jurisdiction and venue of the courts located
in the Commonwealth of Pennsylvania on the ground of
inconvenience or otherwise and, further, waives any right to
bring any action or proceeding against (a) the Administrative
Agent in any court outside the Commonwealth of Pennsylvania, or
(b) any other Lender other than in a state within the United
States designated by such Lender. The provisions of this Section
12.21 shall not limit or otherwise affect the right of the
Administrative Agent or any other Lender Party to institute and
conduct an action in any other appropriate manner, jurisdiction
or court.
(b) WAIVER OF JURY TRIAL; DAMAGES. NEITHER ANY LENDER
PARTY NOR ANY BORROWER, NOR ANY ASSIGNEE, SUCCESSOR, HEIR OR
PERSONAL REPRESENTATIVE OF THE FOREGOING SHALL SEEK A JURY TRIAL
IN ANY PROCEEDING BASED UPON OR ARISING OUT OF THIS AGREEMENT, OR
ANY OTHER LOAN DOCUMENT, OR INVOLVING ANY COLLATERAL OR ANY
GUARANTY RELATING TO THE INDEBTEDNESS HEREUNDER OR THE
RELATIONSHIP BETWEEN OR AMONG SUCH PERSONS OR ANY OF THEM. NO
SUCH PERSON WILL SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY
PR\79666\1
-93-
OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN
WAIVED. EXCEPT AS PROHIBITED BY LAW, EACH PARTY TO THIS
AGREEMENT WAIVES ANY RIGHTS IT MAY HAVE TO CLAIM OR RECOVER IN
ANY LITIGATION REFERRED TO IN THIS SECTION 12.21 ANY SPECIAL,
EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER
THAN, OR IN ADDITION TO, ACTUAL DAMAGES. EACH PARTY TO THIS
AGREEMENT (i) CERTIFIES THAT NEITHER THE ADMINISTRATIVE AGENT NOR
ANY LENDER PARTY NOR ANY REPRESENTATIVE, OR ATTORNEY OF THE
ADMINISTRATIVE AGENT OR ANY LENDER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT THE ADMINISTRATIVE AGENT OR SUCH
LENDER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVERS AND (ii) ACKNOWLEDGES THAT IT HAS
BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND EACH OTHER LOAN
DOCUMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS PARAGRAPH (b) OF SECTION 12.21. THE
PROVISIONS OF THIS SECTION 12.21 HAVE BEEN FULLY DISCLOSED TO THE
PARTIES AND THE PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS. NO
PARTY HAS IN ANY WAY AGREED WITH OR REPRESENTED TO ANY OTHER
PARTY THAT THE PROVISIONS OF THIS SECTION 12.21 WILL NOT BE FULLY
ENFORCED IN ALL INSTANCES.
PR\79666\1
-94-
IN WITNESS WHEREOF, the parties hereto, by their
officers thereunto duly authorized, have executed and delivered
this Agreement as of the date first above written.
J & J SNACK FOODS CORP. ADDRESS FOR BORROWERS
J & J SNACK FOODS INVESTMENT CORP. 6000 Central Highway
J & J SNACK FOODS CORP. OF NEW JERSEY Pennsauken, New Jersey 08109
J & J SNACK FOODS CORP. OF CALIFORNIA
J & J SNACK FOODS CORP./MIDWEST Telephone: (609) 665-9533
J & J SNACK FOODS CORP./MIA Facsimile: (609) 488-7587
ICEE-USA CORP.
J & J SNACK FOODS CORP. OF
PENNSYLVANIA With a copy to:
MAZZONE ENTERPRISES, INC. Fred A. Ruttenberg, Esquire
J & J SNACK FOODS TRANSPORT CORP. Blank, Rome, Comisky & McCauley
BAKERS BEST SNACK FOOD CORP. 210 Lake Drive East
PRETZELS, INC. Cherry Hill, New Jersey 08002
J & J SNACK FOODS SALES CORP.
SNACK FOODS ACQUISITION CORP.
J & J RESTAURANT GROUP, INC.
J & J SNACK FOODS SALES CORP. OF TEXAS
AMERICAN SNACK FOODS CORP.
By:
Name: Dennis G. Moore
Title: Vice President
MELLON BANK, N.A. Street Address:
as Administrative Agent and Lender AIM 199-5220
Mellon Independence Center
By: 701 Market Street
Name: Philadelphia, Pennsylvania 19106
Title:
Mailing Address:
AIM 199-5220
Post Office Box 7899
Philadelphia, Pennsylvania 19101-7899
Attention: Linda Sigler,
Loan Administration
Telephone: (215) 553-4583
Facsimile: (215) 553-4789
With a copy to:
Plymouth Meeting Executive Campus
610 W. Germantown Pike, Suite 200
Plymouth Meeting, Pennsylvania 19462
Attention: Marita Carb
Telephone: (610) 941-5328
Facsimile: (610)
CORESTATES BANK, N.A. 600 Cuthbert Boulevard
as Administrative Agent and Lender Haddon Township, New Jersey 08108
PR\79666\1
-95-
By: Attention: Alan B. Herman
Name:
Title: Telephone: (609) 858-7608
Facsimile: (609) 858-7622
PR\79666\1
-96-
EXHIBIT 13.1
J & J SNACK FOODS CORP.
1998 ANNUAL REPORT
TO SHAREHOLDERS
115
Positioned to Welcome a New Era of Growth
1998 Annual Report
6000 Central Highway.Pennsauken, NJ 08109.(609) 665-9533
www.jjsnack.com
Profile
J&J Snack Foods Corp. is a manufacturer, marketer and distributor of an
expanding variety of nutritional, popularly priced, branded snack foods and
beverages for the food service and retail supermarket industries. The
Company is listed on the NASDAQ exchange as "JJSF," and serves both
national and international markets.
Our growing portfolio of products includes soft pretzels; frozen carbonated
beverages; frozen juice bars and desserts; churros, a cinnamon pastry;
funnel cakes; cookies and bakery goods; and other snack foods and drinks.
Consumers can enjoy these tasty products in a variety of settings,
including:
* Snack bars and food stands in leading chain, department, discount and
convenience stores
* Malls and shopping centers
* Fast food outlets
* Stadiums and sports arenas
* Leisure and theme parks
* Movie theatres
* Schools and colleges
* Business and industry and other institutions
* Supermarkets and warehouse club stores
As we prepare for the future, J&J Snack Foods Corp. plans to continue
expanding its unique product offerings and market niches, capitalizing on
new opportunities wherever they may be found.
Contents
Financial Highlights 1
Letter From the President 2
Our Family of Brands 4
Soft Pretzels 5
Frozen Carbonated Beverages (FCB) 8
Frozen Desserts 10
Other Snacks 12
Financial Information 14
Corporate Information 29
Financial Highlights
Fiscal year ended in September
(In thousands except per share data)
1998 1997 1996 1995 1994
Net Sales $ 262,390 $ 220,318 $ 186,018 $ 185,362 $ 174,425
Net Earnings $ 11,850 $ 8,159 $ 5,843 $ 5,804 $ 8,532
Total Assets $ 213,261 $ 136,827 $ 123,128 $ 123,309 $ 127,366
Long-Term Debt $ 48,199 $ 5,028 $ 5,010 $ 5,011 $ 5,028
Stockholders'
Equity $ 119,681 $ 105,904 $ 96,708 $ 96,084 $ 100,545
Common Share Data
Earnings Per
Diluted Share $ 1.26 $ .91 $ .65 $ .61 $ .82
Earnings Per
Basic Share $ 1.32 $ .93 $ .65 $ .62 $ .84
Book Value
Per Share $ 13.25 $ 11.97 $ 11.05 $ 10.53 $ 10.17
Common Shares
Outstanding
At Year End 9,036 8,850 8,749 9,126 9,889
Letter from the President
"Give me your tired, your poor, your huddled masses, yearning to breathe
free. . ." so began poet Emma Lazarus' famous sonnet that was eventually
displayed and made famous with the Statue of Liberty.
We took some creative liberty by placing two of our famous brands, a
SUPERPRETZEL soft pretzel and an ICEE drink, in her gentle but strong
hands. Historical and patriotic monuments aside, both our Company and
these product lines stand as testaments to opportunities and success
stories found only in America.
We had a good year in fiscal '98. No. . .we had a VERY good year and we
are extremely proud of our people and their performance.
1998 Results in Brief
We achieved record sales and earnings for fiscal 1998. For the 27th
consecutive year we increased sales from the prior year. In fiscal '98:
* Sales increased 19% to $262,390,000 from $220,318,000
* Net income rose 45% to $11,850,000 from $8,159,000
* EPS climbed 38% to $1.26 from $.91
And, we continued the growth momentum that we established and have been
sustaining the past few years with further expansion of both our products
and markets.
"The Thinker" - Visions of Tomorrow
I can't speak for Rodin or what "The Thinker" was contemplating, but I can
assure you that my thoughts and those of our management team constantly
revolve around our efforts to grow our business and increase shareholder
value. This past year's performance was due in large part to strategies
and decisions developed over the years which were carefully and decisively
implemented.
Developing and Growing our Niches
Soft pretzel sales again posted an increase in fiscal 1998, led by our
flagship brand, SUPERPRETZEL. Soft pretzel consumption opportunities and
menu positioning ideas continue to be created and developed by our Food
Service and Retail Supermarket divisions. Traditional markets and
occasions of incidence are being expanded by a variety of newly developed
soft pretzel products and eating suggestions. This includes filled soft
pretzel sticks as appetizers, soft pretzel buns and rolls being tested by
restaurants, and Pretzel Gourmet Express, a line of gourmet upscale soft
pretzel products for business and college campus dining. An exciting and
aggressive marketing program to grow our supermarket soft pretzel business
featuring television and billboard advertising is being tested in select
markets beginning in fiscal 1999.
Our West Coast Bakery had an excellent year posting increased sales and
sharp improvements in manufacturing efficiency. Churros and funnel cake
sales also had strong sales gains and further developed their markets and
geography.
Not all was "cool" in J&J land. Like Rodin's "The Thinker", we need to
"think harder and better" in connection with our Scranton plant and frozen
dessert lines, including LUIGI'S and MAMA TISH'S Italian ices and SHAPE-UPS
frozen desserts. Sales and profits were impacted this past year due in
part to delays and start-up problems in connection with the expansion of
our plant.
ICEE - The Vision and Opportunity
Our frozen beverage division now known as The ICEE Company had another
excellent year. Sales grew a whopping 75% with a significant part of the
increase coming from the acquisition of National ICEE in December 1997.
While the acquisition represented a key and significant step to growing
the ICEE brand nationwide, equally important, we were able to consolidate
and integrate the combined entities quickly and efficiently to maximize
operations.
Our vision and strategy for the frozen beverage business mirrors, in large
part, a similar vision and strategy experienced in our soft pretzel
business. We acquired ICEE-USA in May 1987 - an unprofitable company with
sales of $13 million selling, at the time, only in the West. Our vision -
a national company with the dominant brand that would someday be sold
coast-to-coast (internationally too) and complement our snack food
products. Now, further enhanced with a strategic alliance with Coca-Cola,
the world's leading soft drink company, we are excited with the
opportunities to maximize our ICEE frozen beverage business.
Looking ahead to fiscal 1999, we believe we are well positioned to continue
our plans in this land of opportunity. Twenty-seven years ago, I bought
the assets of a bankrupt soft pretzel company with just eight employees
and only $400,000 in sales. And along the way, we acquired other troubled
businesses and defunct product lines also in need of a new opportunity or
another chance. "Give me your tired, your poor, your huddled masses. . ."
- only in America. We remain committed and dedicated to growing our
business and extremely enthused with the opportunity!
Sincerely,
Gerald B. Shreiber
President and Chairman
December 1, 1998
Soft Pretzles: Building on Monumental Success
When a product has one good year, it's a success. When it has several good
years, it's a phenomenon. And when it records more than 25 great years, it
becomes nothing less than an institution.
That's the story of SUPERPRETZEL, America's Favorite Soft Pretzel.
Thanks to the enduring strength of SUPERPRETZEL, our flagship brand, J&J
Snack Foods is the largest manufacturer of soft pretzels in the world. In
fiscal 1998, our Food Service division increased soft pretzel sales by 5%.
With a brand that's part of the American landscape, we're well positioned
to lead the soft pretzel category into the next millennium.
Sold Wherever Appetites are Found
We're proud to say that SUPERPRETZELs are sold just about everywhere.
They're available at tens of thousands of high-traffic snack bars across
the country in malls and shopping centers, chain stores, convenience
stores, stadiums and sports arenas, amusement, leisure and theme parks,
schools and colleges, movie theatres, business and industry cafeterias,
fast food outlets, supermarkets and warehouse club stores.
The Anatomy of a Pretzel Sale
The eye catches a glimpse of a brightly colored merchandiser that displays
warm, soft pretzels. The senses are stimulated. The appetite is engaged.
The brain agrees. The hand reacts. A sale is made.
This scenario, repeated hundreds of thousands of times each day, is the key
to the success of SUPERPRETZEL soft pretzels. It's a matter of being in
the right place at the right time - with the right product and promotion.
And in fiscal 1998, we were in more of the right places than ever, having
ramped up our merchandising initiatives at several major accounts to gain a
larger share of their consumer snack purchases. One result: At a key
account, our innovative custom display cases boosted sales by an impressive
22%.
Making Soft Pretzel History in Schools
SUPERPRETZEL soft pretzels are a real lesson in how to provide both
nutrition and fun to America's schoolchildren. For nutrition, they satisfy
bread requirements for U.S.D.A. approved school lunch and breakfast
programs, making them a natural fit for both menu and a la carte sales.
For fun, they provide a delicious treat that kids love.
To make SUPERPRETZEL even more fun, J&J has created special promotions that
help boost the holiday spirit in schools. These promotions include
specialty-shaped SUPERPRETZEL soft pretzels, such as snowmen and
shamrocks, in conjunction with our frozen desserts. It's a combination
that delights school food service directors and students alike.
"What's the Pretzel du Jour?"
With today's busy lifestyles, Americans are dining out more than ever. And
J&J is there.
Our diverse family of soft pretzel products is gaining popularity with
customers at more and more restaurants nationwide, thanks in part to an
aggressive, channel-specific marketing program. This program includes a
print advertising campaign that gives restaurateurs new ideas on how to add
our shaped, flavored and filled varieties to their menus.
J&J also continues to innovate with new restaurant-oriented products like
Gourmet Soft Pretzel Buns, a delicious alternative to an ordinary hot dog
bun that adds an exciting twist to an all-American favorite. We've teamed
up with a leading hot dog chain to launch this new value-added menu item at
all their locations.
Merchandising our Success
In the food service business, great products aren't enough. You've got to
merchandise, merchandise, merchandise. J&J has become one of the
industry's most respected providers of merchandising and branded programs,
offering a wide variety of point-of-sale materials, display cases and
specialty mobile merchandisers. These items, which prominently display our
eye-catching SUPERPRETZEL graphics, provide food service customers with
everything they need to highlight our products - even in non-traditional
locations.
One of our growing branded programs is the upscale PRETZEL GOURMET EXPRESS
(PGX), which targets colleges, businesses, theme parks, stadiums and
arenas. PGX is becoming a hit with customers because it provides a
complete package that includes proprietary merchandising equipment and
point-of-sale materials. Best of all, it features our premium line of
delicious raw and baked flavored soft pretzels. Simply irresistible.
Supermarket. SUPERPRETZEL. Super Challenge.
In the supermarket, our SUPERPRETZEL brand continues to lead its category,
with a commanding 74% market share. However, the supermarket freezer case
where our products are sold continues to be a challenging environment,
with our soft pretzel sales declining by 11% in fiscal 1998. This was
largely due to the discontinuation of underperforming product lines as well
as increased competition in the hot snacks/appetizers category. We are
increasing our consumer driven marketing activities to reverse the trend in
this important category, including television and billboard advertising in
select markets beginning in fiscal 1999.
SUPERPRETZEL SOFTSTIX, which combine SUPERPRETZEL soft pretzel sticks with
KRAFT* cheese filling, experienced a substantial turnaround, with a 13%
sales gain. This can be attributed to both increased sales and
distribution as well as a successful co-branding agreement with KRAFT.
In addition, we redesigned both the supermarket and warehouse club
SUPERPRETZEL packages to highlight the consumer benefits of convenience and
ease of preparation. This redesign and update is part of a total marketing
strategy that is being launched at the start of fiscal 1999. We look
forward to generating good news in the months ahead.
(*KRAFT and the KRAFT logo are registered trademarks owned and licensed by
Kraft General Foods, Inc.)
Going and Growing Where the Traffic Is
Our chain of BAVARIAN PRETZEL BAKERY and PRETZEL GOURMET retail stores,
operated by the J&J Restaurant Group, delivered an 8% sales gain during
fiscal 1998. Located in regional malls primarily in the Mid-Atlantic
states, the chain benefited from a combination of the addition of co-
branded products and improved operating performance. During the year we
closed several poorly performing stores which will have a positive impact
in fiscal 1999.
Frozen Carbonated Beverages (FCB): The People's Choice
ICEE: Now One Company, Indivisible
It's official: From New York to California, from the Arctic regions of
Canada to the tropics of Mexico, The ICEE Company is the source for the
popular and refreshing line of ICEE products. In December 1997, we
acquired National ICEE Corporation which had distributed ICEE frozen
carbonated beverages and products throughout the eastern half of the
country, while our subsidiary, ICEE-USA, distributed in the western United
States.
And now we are one.
The ICEE Company now sells the ICEE brand in over 90% of the U.S. as well
as Canada and Mexico and in addition, sells ARCTIC BLAST and other brands
in select markets. Plans are developing for international market expansion
as well. Thanks to an ICEE-smooth consolidation effort, we achieved a
soaring sales increase of 72% in beverage sales alone for the fiscal year.
ICEE - A "Too Cool" Brand
Consumers can't get enough of our refreshing ICEE drinks, which are served
from proprietary dispensing equipment and can be enjoyed with a straw or a
spoon. They're an ultra-satisfying treat that people of all ages enjoy
year-round. ICEE beverages are now available at over 17,000 food service
locations nationally, many of which also sell our SUPERPRETZEL soft
pretzels and other snack foods.
More locations are being added all the time. During fiscal 1998, we
installed several new major account outlets, and began testing in a number
of fast food chains across the country. We pledge not to stop until
there's an ICEE in the chilly hands of every consumer.
ICEE and Coca-Cola*: Partners For Growth
This past year ICEE joined Coca-Cola in an exciting new venture that offers
great potential in the frozen beverage category for both of these all-
American favorites. We've entered into a long-term marketing agreement
that combines ICEE's operational and service system expertise with the
marketing power of Coca-Cola. In the years ahead, we'll be leveraging this
agreement to expand our business with new selling opportunities for frozen
beverages featuring ICEE and Coca-Cola.
(*"Coca-Cola" is a trademark of The Coca-Cola Company.)
Focused on the Fundamentals
The ICEE Company is more than just great tasting beverages and exciting
brand names. Behind the scenes, there's a modern infrastructure that
maintains our equipment in peak condition, and keeps our trade customers
satisfied.
To stay the best in the business, we've expanded and relocated our training
facility. This technical service center, known as FCB University, provides
comprehensive training and education to keep pace with our planned growth.
In addition, we continue to invest in our centralized Customer Service
Center, which supports our branches and service technicians by providing
state-of-the-art "Service Excellence" to our 17,000+ and growing customer
base.
We continue to improve on the performance and reliability of our beverage
dispensing equipment. This, together with specialized, unique
distribution systems, will help The ICEE Company remain the leader in the
frozen beverage industry.
Frozen Desserts: Ringing in the New
Building for the Future
In fiscal 1998, we completed a major modernization and expansion of our
Italian ice and frozen dessert plant in Scranton, Pennsylvania. This
facility, which was expanded in part to accommodate the MAMA TISH'S
acquisition of a year ago, has more than doubled its production capacity.
And today, modernization has resulted in measurable product quality
improvements that add value to our brands.
Two Category Leaders Get New Images
Combined retail supermarket sales of LUIGI'S and MAMA TISH'S Italian ices
grew by 3% in fiscal 1998, led by an increase of 9% for the LUIGI'S brand.
These two brands continue to lead the category as two of the top selling
Italian ice product lines in the highly competitive supermarket freezer
case.
To increase consumer visibility, we updated the LUIGI'S box with bold
contemporary graphics, and re-positioned MAMA TISH'S as MAMA TISH'S
FRUTTUOSSO SORBETTO - an upscale image to match its premium quality. Both
brands offer consumers a refreshing, anytime taste treat.
The Squeeze is on in Food Service
Our Food Service division sells frozen dessert products under the brand
names of LUIGI'S, SHAPE-UPS, MAMA TISH'S, FROSTAR and SNAPPLE* ICE.
Overall sales experienced a decline of 12% for fiscal year 1998 due to
decreased sales to several key customers. While these results are
disappointing, we continue to aggressively pursue every opportunity to
boost Food Service sales in the future.
As part of our sales building efforts, we introduced new items to the Food
Service market, particularly convenience stores, including ICEE Squeeze-up
Tubes which capture the fizz and taste of a traditional ICEE drink and
extend the brand's equity and awareness.
(SNAPPLE is a registered trademark of Snapple Beverage Corp.)
SHAPE-UPS Go to School
Our SHAPE-UPS frozen juice bars continue to score high marks with America's
schoolchildren and are welcomed by school food service directors since
they carry the U.S.D.A. approved Child Nutrition (CN) Label.
To keep SHAPE-UPS shipping out, we recently introduced bright and colorful
new packaging, along with new creative promotions targeted to school food
service directors.
Other Snacks: Building Bridges to New Markets
Our other niche snack foods, including churros, funnel cakes, cookies and
other baked goods, also had a good year. Sales grew in all four of these
product lines.
West Coast Bakery Rides a Wave of Good News
The surf was up - way up - at our Los Angeles based West Coast Bakery.
Sales increased an awesome 30% and through production improvements,
manufacturing efficiency was riding high, too.
These results are attributable to a number of factors. We grew our frozen
cookie dough business, expanded our contract private label products,
including organically certified baked goods, extended the variety of
offerings in our industrial ingredient business, and built a stronger
presence in the gift pack market with our cookie lines.
Things are also looking good for MRS. GOODCOOKIE, a frozen ready-to-bake
cookie line that we introduced to limited markets late last year. In
fiscal 1998 we refined and expanded our program and were encouraged by the
sales results. Watch for national expansion in the years ahead.
Churros - From Sea to Shining Sea
Through our geographic expansion efforts, more and more consumers are
discovering what people in the West and Southwest have known for years:
TIO PEPE'S churros are a sweet treat anywhere.
These crispy, cinnamon-sugared, doughnut-like snacks of Hispanic origin are
growing in popularity and gaining in sales. And even long-time fans are
discovering the versatility of churros through our delicious new fruit-
filled varieties. As a result, Food Service churros sales grew by 8% this
year. Much of this growth was due to the introduction of TIO PEPE'S fruit-
filled churros to school menus, where they provide both bread and fruit
requirements for U.S.D.A. approved school lunch and breakfast programs.
Retail churros experienced significant growth both in existing and newly
entered geographic markets.
Making Fun with Funnel Cakes
You can't have a funnel cake without "fun." And more people than .ever are
having fun with THE FUNNEL CAKE FACTORY funnel cakes, sold through our Food
Service division.
These tempting treats are available as frozen pre-cooked, pre-shaped funnel
cakes as well as a make-your-own dry mix. They're a huge hit at theme and
amusement parks, and are gaining popularity as a restaurant dessert item as
a result of our innovative menu ideas.
We recently reformulated our funnel cakes to meet two bread requirements
for U.S.D.A. approved school lunch and breakfast programs. As a result,
they're being added to numerous school menus around the country.
It all adds up to a sales increase of 34% in fiscal 1998 - and results like
that are great fun for J&J Snack Foods.
Here in America, brand names have the opportunity and power to become
icons, recognized and enjoyed by millions. J&J Snack Foods is proud that
our many brands continue to grow in popularity, taking their place on the
great landscape of American popular culture.
Management's Discussion and Analysis of Financial Condition and Results of
Operations
In addition to historical information, this discussion and analysis
contains forward-looking statements. The forward-looking statements
contained herein are subject to certain risks and uncertainties that could
cause actual results to differ materially from those projected in the
forward-looking statements. Important factors that might cause such a
difference include, but are not limited to, those discussed in the
"Management's Discussion and Analysis of Financial Condition and Results of
Operations." Readers are cautioned not to place undue reliance on these
forward-looking statements, which reflect management's analysis only as of
the date hereof. The Company undertakes no obligation to publicly revise
or update these forward-looking statements to reflect events or
circumstances that arise after the date hereof.
Results of Operations
Fiscal 1998 Compared to Fiscal 1997
Net sales increased $42,072,000 or 19% to $262,390,000 in fiscal 1998 from
$220,318,000 in fiscal 1997. Approximately $31,000,000 of the increase in
sales for the year resulted from the December 1997 acquisition of National
ICEE Corporation.
Sales to food service customers increased $1,534,000 or 2% to $103,470,000
in fiscal 1998. Soft pretzel sales to the food service market increased 5%
to $60,589,000. Churro sales increased 8% to $11,195,000. Frozen juice
bar and dessert sales decreased 12% to $24,746,000 primarily due to lower
sales to three customers.
Sales of products to retail supermarkets decreased $1,708,000 or 4% to
$38,594,000 in fiscal 1998. Total soft pretzel sales to retail
supermarkets were $21,849,000, a decrease of 11% from fiscal 1997. Sales
of our flagship brand SUPERPRETZEL soft pretzels, excluding SOFTSTIX and
CINNAMON RAISIN MINI'S, decreased 5% to $17,298,000. SOFTSTIX sales
increased $268,000 or 13% to $2,286,000 from the previous year. Sales of
Italian ice increased $485,000 or 3% to $15,038,000 in 1998 from
$14,553,000 in 1997; sales were impacted by limited production output
during the expansion and modernization of the Company's Italian ice and
frozen dessert plant in Scranton, PA.
Frozen carbonated beverage and related product sales increased $35,884,000
or 75% to $83,799,000 in fiscal 1998. Beverage sales alone increased 72%
to $75,191,000 for the year, including approximately $31,000,000
attributable to the December 1997 acquisition of National ICEE Corporation.
Bakery sales increased $5,351,000 or 30% to $23,307,000 in fiscal 1998 due
primarily to increased product sales to one customer. Sales of our
Bavarian Pretzel Bakery increased 8% to $13,220,000 for the year.
Gross profit on sales increased to 52% of sales in 1998 from 49% of sales
in 1997. The gross profit percentage increase is primarily attributable to
higher gross profit percentages of the acquired National ICEE Corporation
business and lower flour costs, net of higher manufacturing costs of
approximately $1,300,000 incurred during the startup of operations in the
third and fourth quarters at the Company's expanded Italian ice and frozen
dessert plant in Scranton, PA.
Total operating expenses increased $18,598,000 to $115,117,000 in fiscal
1998 but as a percentage of sales were 44% in both 1998 and 1997.
Marketing and distribution expenses were 30% and 9% of sales, respectively,
in both fiscal 1998 and 1997. Administrative expenses decreased to 4% of
sales in fiscal 1998 from 5% in fiscal 1997 due primarily to lower
litigation costs in fiscal 1998.
Operating income increased $8,821,000 or 76% to $20,461,000 in fiscal 1998.
Interest expense increased $2,602,000 to $3,033,000 in fiscal 1998 due to
the purchase and assumption and subsequent refinancing of the debt of
National ICEE Corporation.
Sundry income increased by $696,000 in fiscal 1998 from $112,000 in fiscal
1997 due to the successful settlement of certain litigation. In 1998,
Sundry income was offset by $525,000 in write offs and accruals for the
closing of unprofitable Bavarian Pretzel Bakery retail stores.
The effective income tax rate increased to 37% in fiscal 1998 from 32% in
fiscal 1997. The lower rate in fiscal 1997 is due primarily to
adjustments relating to settlements of federal tax matters.
Net earnings increased $3,691,000 or 45% in fiscal 1998 to $11,850,000.
Fiscal 1997 Compared to Fiscal 1996
Net sales increased $34,300,000 or 18% to $220,318,000 in fiscal 1997 from
$186,018,000 in fiscal 1996. Excluding sales of acquired businesses, net
sales increased $16,395,000 or 9% for the year.
Sales to food service customers increased $15,432,000 or 18% to
$101,936,000 in fiscal 1997. Excluding sales of acquired businesses,
sales to food service customers increased $2,675,000 or 3% for the year.
Soft pretzel sales to the food service market increased 5% to $57,668,000.
Excluding sales of acquired businesses, food service soft pretzel sales
decreased $636,000 or 1% from last year. Two customers accounted for
approximately $2,500,000 of lower pretzel sales in 1997 compared to 1996.
Churro sales increased 3% to $10,403,000. Frozen juice bar and dessert
sales increased 76% to $28,210,000. Approximately 75% of the juice bar and
dessert sales increase resulted from sales of acquired businesses.
Sales of products to retail supermarkets increased $3,384,000 or 9% to
$40,302,000 in fiscal 1997. Total soft pretzel sales to retail
supermarkets were $24,504,000, an increase of 3% from fiscal 1996.
Excluding sales of an acquired business, sales to retail supermarkets
decreased 2% or $919,000 for the year. Sales of our flagship
SUPERPRETZEL brand soft pretzels, excluding SOFTSTIX and CINNAMON RAISIN
MINI'S, decreased 7% to $18,157,000. SOFTSTIX sales decreased $701,000 or
26% to $2,018,000 from the previous year. Sales of Italian ice increased
$2,335,000 or 19% to $14,553,000 in 1997 from $12,218,000 in 1996 due to
sales of Mama Tish's International Foods which was acquired during the
second quarter. Excluding sales of Mama Tish's, Italian ice sales were
down 4% for the year.
Frozen carbonated beverage and related product sales increased $3,558,000
or 8% to $47,915,000 in fiscal 1997. Beverage sales alone increased 4% to
$43,594,000 for the year. Excluding last year's pricing adjustment to one
customer and an unusually high sales of promotional cups to another
customer, beverage sales increased 7%.
Bakery sales increased $10,225,000 or 132% to $17,956,000 in fiscal 1997
due to increased product sales to one customer. Sales of our Bavarian
Pretzel Bakery increased 16% to $12,209,000 for the year. Excluding sales
from an acquired business, Bavarian Pretzel Bakery sales increased 8% or
$856,000 for the year.
Gross profit on sales was 49% of sales in both 1997 and 1996.
Total operating expenses increased $12,449,000 to $96,519,000 in fiscal
1997 but as a percentage of sales decreased to 44% from 45% in fiscal 1996.
Marketing expenses as a percentage of sales dropped to 30% in 1997 from 32%
in 1996. This decline was due primarily to overhead efficiencies
resulting from higher sales levels. Distribution expenses were 9% of sales
in 1997 and 1996. Administrative expenses increased to 5% of sales in 1997
from 4% in 1996 due to increased litigation costs.
Operating income increased $3,692,000 or 46% to $11,640,000 in fiscal 1997.
Investment income decreased $796,000 or 56% in fiscal year 1997 due to a
sharply lower level of investable funds which were used to pay for
acquisitions. Interest expense increased $66,000 or 18% due to short-term
borrowings.
The effective income tax rate was 32% in 1997 and 35% in 1996. The lower
rate in 1997 is primarily due to adjustments relating to settlements of
federal tax matters.
Net earnings increased $2,316,000 or 40% in fiscal 1997 to $8,159,000.
Acquisitions, Liquidity and Capital Resources
In December 1997, the Company acquired the common stock of National ICEE
Corporation. National ICEE Corporation, with annual sales of
approximately $40 million, markets and distributes frozen carbonated
beverages primarily in the eastern half of the United States. The Company
has incurred approximately $50 million of debt to complete the
acquisition. The following are the unaudited pro forma results of
operations for the fiscal years 1998, 1997 and 1996 assuming the above
had occurred at the beginning of that fiscal year:
1998 1997 1996
Sales $268,390,000 $259,952,000 $222,964,000
Net Earnings $11,346,000 $8,645,000 $7,036,000
Earnings per diluted share $1.21 $.96 $.78
In January 1997, the Company acquired the assets of Mama Tish's
International Foods by assuming certain liabilities. Mama Tish's is a
manufacturer and distributor of Italian ices, sorbets and other frozen
juice products with annual sales of approximately $15 million.
In November 1996, the Company acquired all of the .common stock of
Pretzels, Inc. for cash. Trading as TEXAS TWIST, Pretzels, Inc. is a soft
pretzel manufacturer selling to both the food service and retail
supermarket industries.
In October 1996, the Company acquired the assets of Bakers Best Snack Food
Corp. for cash. Bakers Best is a manufacturer of soft pretzels selling to
both the food service and retail supermarket industries.
In May 1996, the Company acquired the assets of Mazzone Enterprises, Inc.
for cash and by assuming certain of its liabilities. Mazzone Enterprises
is a manufacturer and distributor of Italian ices and other specialty
frozen desserts.
In April 1996, the Company acquired the assets of Pretzel Gourmet Corp. for
cash. Pretzel Gourmet is a chain of retail stores specializing in freshly
baked hand-rolled soft pretzels.
The Company's current cash and marketable securities balances and cash
expected to be provided by future operations are its primary sources of
liquidity. The Company believes that these sources, along with its
borrowing capacity, are sufficient to fund future growth and expansion.
The devaluation of the Mexican peso caused reductions of $285,000, $53,000
and $235,000 in stockholders' equity for the 1998, 1997 and 1996 fiscal
years, respectively, because of the revaluation of the net assets of the
Company's Mexican frozen carbonated beverage subsidiary. In 1998, sales of
the Mexican subsidiary were $2,170,000.
Under various share repurchase programs authorized by the Board of
Directors, the Company purchased and retired 433,000 shares of its common
stock at a cost of $5,029,000 in fiscal year 1996. Under the most recent
share repurchase authorization, 712,000 shares remain to be repurchased.
An unsecured general-purpose bank line of credit totalling $30,000,000 is
available to the Company. Borrowings under the bank line of credit were
$16,000,000 at September 26, 1998.
The Financial Accounting Standards Board ("FASB") has issued Statement of
Financial Accounting Standards ("SFAS") No. 128, "Earnings Per Share"
("EPS"), which is effective for financial statements issued after December
31, 1997. The new standard eliminates primary and fully diluted EPS and
instead requires presentation of basic and diluted EPS in conjunction with
the disclosure of the methodology used in computing such EPS. Basic EPS
excludes dilution and is computed by dividing income available to common
shareholders by the weighted-average common shares outstanding during the
period. Diluted EPS takes into consideration the potential dilution that
could occur if securities or other contracts to issue common stock were
exercised and converted into common stock. The Company adopted this new
standard in its financial statements for the second quarter of this fiscal
year. The effect of adopting this new standard is not material.
In June 1997, the FASB issued SFAS No. 130, "Reporting Comprehensive
Income," which is effective for years beginning after December 15, 1997.
This new standard requires entities presenting a complete set of financial
statements to include details of comprehensive income. Comprehensive
income consists of net income or loss for the current period and income,
expenses, gains and losses that bypass the income statement and are
reported directly in a separate component of equity. The effect of
adopting this new standard is not expected to be material.
In June 1997, the FASB issued SFAS No. 131, "Disclosures about Segments of
an Enterprise and Related Information," which is effective for all periods
beginning after December 15, 1997. SFAS No. 131 requires that public
business enterprises report certain information about operating segments in
complete sets of financial statements of the enterprise and in condensed
financial statements of interim periods issued to shareholders. It also
requires that public business enterprises report certain information about
their products and services, the geographic areas in which they operate,
and their major customers. The effect of adopting this new standard is
not expected to be material.
Fiscal 1998 Compared to Fiscal 1997
Trade receivables increased $9,301,000 or 40% to $32,683,000 in 1998, and
inventories increased $2,912,000 or 22% to $16,447,000 in 1998 from 1997
primarily because of higher sales levels attributable to the acquisition of
National ICEE Corporation.
Other receivables decreased $371,000 to $1,705,000 in 1998 due to
reimbursement received from the Company's insurance carrier on settlement
of legal matters.
Property, plant and equipment increased $48,216,000 to $212,564,000
primarily because of expenditures for dispensers required for the
expansion of the frozen carbonated beverage business, for ovens and
portable merchandisers required for the expansion of the food service
business and for the expansion and upgrading of production and warehousing
capability at the Company's manufacturing facilities. Additionally,
property, plant and equipment from the National ICEE Corporation
acquisition accounted for approximately one-half of the overall increase.
Goodwill, trademarks and rights, net of accumulated amortization increased
$30,412,000 to $51,871,000 due to goodwill acquired in the National ICEE
Corporation acquisition.
Accounts payable and accrued liabilities increased $10,169,000 in 1998 from
$21,967,000 in 1997 due primarily to the acquisition of National ICEE
Corporation and higher sales levels.
Current maturities of long-term debt increased by $8,407,000 to $8,423,000
and long-term debt, less current maturities increased by $43,171,000 to
$48,199,000 due to borrowings to fund the acquisition of National ICEE
Corporation and the subsequent refinancing of its debt.
Deferred income decreased $97,000 to $435,000 primarily as a result of the
reduction in the Company's guarantees related to the sale of its Hawaiian
ICEE operations.
Deferred Income Taxes increased by $1,007,000 to $4,387,000 in 1998 which
related to depreciation of property, plant and equipment.
Common stock increased $2,212,000 in 1998 to $39,120,000 primarily because
of the exercise of incentive stock options.
Net cash provided by operating activities increased $16,808,000 to
$37,179,000 in 1998 primarily due to increases in net earnings,
depreciation and amortization of fixed assets, amortization of intangibles
and deferred costs and accounts payable and accrued liabilities.
Net cash used in investing activities increased $14,659,000 to $45,132,000
in 1998 primarily due to purchases of property, plant and equipment which
increased by $12,222,000 in 1998. Expenditures increased for dispensers
for the expansion of the frozen carbonated beverage business and for the
expansion and modernization of the Company's Italian ice and frozen dessert
plant in Scranton, PA.
Net cash provided by financing activities of $9,756,000 in 1998 compared to
$956,000 in 1997. The increase was due to a net increase in borrowings to
fund the acquisition of National ICEE Corporation and the subsequent
refinancing of its debt.
Fiscal 1997 Compared to Fiscal 1996
The combined balance of cash and cash equivalents and marketable securities
decreased $10,363,000 from $11,764,000 in 1996 to $1,401,000 in 1997
primarily because of the use of cash for acquisitions.
Trade receivables increased $6,105,000 or 35% to $23,382,000 in 1997, and
inventories increased $2,259,000 or 20% to $13,535,000 in 1997 from 1996
primarily because of higher sales levels.
Other receivables increased $1,151,000 to $2,076,000 in 1997 due to an
increase in reimbursements due from the Company's insurance carrier.
Property, plant and equipment increased $22,248,000 primarily because of
expenditures for dispensers required for the expansion of the frozen
carbonated beverage business, for ovens and portable merchandisers required
for the expansion of the food service business and for the expansion and
upgrading of production and warehousing capability at the Company's
manufacturing facilities. Additionally, property, plant and equipment from
acquisitions accounted for approximately one-third of the overall increase.
Goodwill, trademarks and rights, net of accumulated amortization increased
$12,133,000 to $21,459,000 primarily because of goodwill and restrictive
covenants acquired in the Bakers Best Snack Foods Corp., Pretzels, Inc. and
Mama Tish's International Foods acquisitions. Long-term investments
decreased $6,652,000 to $3,835,000 primarily because proceeds from sales of
these investments were used for acquisitions. Sundry assets increased by
$181,000 from 1996 primarily because of an increase in funding of various
long-term merchandising agreements.
Accounts payable and accrued liabilities increased $4,535,000 in 1997 from
$17,432,000 in 1996 due primarily to higher sales levels.
Deferred income decreased $35,000 primarily as a result of the reduction in
the Company's guarantees related to the sale of its Hawaiian ICEE
operations.
Common stock increased $1,090,000 in 1997 to $36,908,000 primarily because
of the exercise of incentive stock options.
Net cash provided by operating activities decreased $1,509,000 to
$20,371,000 in 1997 from $21,880,000 in 1996 primarily because of an
increase in accounts receivable.
Net cash used in investing activities increased $13,311,000 to $30,473,000
in 1997 from $17,162,000 in 1996 primarily because of payments for
purchases of companies, net of cash acquired and debt assumed and higher
capital expenditures. Capital expenditures increased by $5,101,000 in 1997
from 1996 because of increased expenditures for dispensers for the
expansion of the frozen carbonated beverage business.
There was net cash provided by financing activities of $956,000 in 1997
compared to a net use of $4,867,000 in 1996. The use in 1996 was for the
Company's repurchase of common stock.
Consolidated Statements of Earnings
Fiscal year ended
September 26, September 27, September 28,
1998 1997 1996
Net sales $ 262,390,000 $ 220,318,000 $ 186,018,000
Cost of goods sold 126,812,000 112,159,000 94,000,000
Gross profit 135,578,000 108,159,000 92,018,000
Operating expenses
Marketing 77,385,000 65,231,000 58,604,000
Distribution 24,846,000 19,197,000 17,264,000
Administrative 10,072,000 10,326,000 7,309,000
Amortization of
intangibles and
deferred costs 2,814,000 1,765,000 893,000
115,117,000 96,519,000 84,070,000
Operating income 20,461,000 11,640,000 7,948,000
Other income (deductions)
Investment income 573,000 630,000 1,426,000
Interest expense (3,033,000) (431,000) (365,000)
Sundry 808,000 112,000 34,000
(1,652,000) 311,000 1,095,000
Earnings before
income taxes 18,809,000 11,951,000 9,043,000
Income taxes 6,959,000 3,792,000 3,200,000
NET EARNINGS $ 11,850,00 $ 8,159,000 $ 5,843,000
Earnings per
diluted share $1.26 $.91 $.65
Weighted average number
of diluted shares 9,368,000 8,985,000 9,016,000
Earnings per basic share $1.32 $.93 $.65
Weighted average number
of basic shares 8,947,000 8,781,000 8,940,000
The accompanying notes are an integral part of these statements.
Consolidated Balance Sheets
Fiscal year ended
September 26, September 27,
1998 1997
Assets
Current Assets
Cash and cash equivalents $ 3,204,000 $ 1,401,000
Receivables
Trade, less allowance of
$597,000 and $392,000,
respectively 32,683,000 23,382,000
Other 1,705,000 2,076,000
Inventories 16,447,000 13,535,000
Prepaid expenses and deposits 1,104,000 853,000
Total current assets 55,143,000 41,247,000
Property, Plant and Equipment, at cost 212,564,000 164,348,000
Less accumulated depreciation
and amortization 112,444,000 97,126,000
100,120,000 67,222,000
Other Assets
Goodwill, trademarks and rights,
less accumulated amortization
of $9,712,000 and $6,883,000,
respectively 51,871,000 21,459,000
Long-term investment securities
available for sale _ 495,000
Long-term investment securities
held to maturity 3,127,000 3,340,000
Sundry 3,000,000 3,064,000
57,998,000 8,358,000
$ 213,261,000 $ 136,827,000
Liabilities and Stockholders' Equity
Current Liabilities
Current maturities of long-term
debt $ 8,423,000 $ 16,000
Accounts payable 23,222,000 13,315,000
Accrued liabilities 8,914,000 8,652,000
Total current liabilities 40,559,000 21,983,000
Long-Term Debt, less current maturities 48,199,000 5,028,000
Deferred Income 435,000 532,000
Deferred Income Taxes 4,387,000 3,380,000
Commitments _ _
Stockholders' Equity
Capital stock
Preferred, $1 par value;
authorized, 5,000,000 shares; none
issued _ _
Common, no par value; authorized,
25,000,000 shares; issued and
outstanding, 9,036,000 and 8,850,000,
respectively 39,120,000 36,908,000
Foreign currency translation
adjustment (1,694,000) (1,409,000)
Retained earnings 82,255,000 70,405,000
119,681,000 105,904,000
$ 213,261,000 $ 136,827,000
The accompanying notes are an integral part of these statements.
Consolidated Statement of Changes in Stockholders' Equity
Foreign
Currency
Common Stock Translation Retained
Shares Amount Adjustment Earnings Total
Balance at
Oct. 1, 1995 9,126,000 $40,802,000 $(1,121,000) $56,403,000 $ 96,084,000
Issuance of common
stock upon
exercise of stock
options 56,000 199,000 - - 199,000
Adjustments to common
stock for acquisition - (154,000) - - (154,000)
Foreign currency
translation
adjustment - - (235,000) - (235,000)
Repurchase of
common stock (433,000) (5,029,000) - - (5,029,000)
Net earnings for
the fiscal year
ended September 28,
1996 - - - 5,843,000 5,843,000
Balance at
Sep. 28, 1996 8,749,000 35,818,000 (1,356,000) 62,246,000 96,708,000
Issuance of common
stock upon
exercise of stock
options 84,000 945,000 - - 945,000
Issuance of common
stock for employee
stock purchase
plan 17,000 145,000 - - 145,000
Foreign currency
translation
adjustment - - (53,000) - (53,000)
Net earnings for
the fiscal year
ended September 27,
1997 - - - 8,159,000 8,159,000
Balance at
Sep. 27, 1997 8,850,000 36,908,000 (1,409,000) 70,405,000 105,904,000
Issuance of common
stock upon
exercise of stock
options 171,000 2,017,000 - - 2,017,000
Issuance of common
stock for employee
stock purchase
plan 15,000 195,000 - - 195,000
Foreign currency
translation
adjustment - - (285,000) - (285,000)
Net earnings for
the fiscal year
ended September 26,
1998 - - - 11,850,000 11,850,000
Balance at
Sep. 26, 1998 9,036,000 $39,120,000 $(1,694,000) $82,255,000 $119,681,000
The accompanying notes are an integral part of this statement.
Consolidated Statements of Cash Flows
Fiscal year ended
September 26, September 27, September 28,
1998 1997 1996
Operating activities:
Net earnings $11,850,000 $ 8,159,000 $ 5,843,000
Adjustments to reconcile
net earnings to net
cash provided by
operating activities:
Depreciation and
amortization of
fixed assets 21,807,000 17,090,000 15,613,000
Amortization of
intangibles and
deferred costs 3,352,000 2,180,000 1,262,000
Losses (gains) from
disposals of property
and equipment 306,000 (26,000) 44,000
Increase (decrease)
in deferred income
taxes 1,007,000 (23,000) (1,600,000)
Other adjustments 23,000 14,000 (24,000)
Changes in assets and
liabilities, net of
effects from purchase
of companies:
Increase in accounts
receivable (6,378,000) (6,615,000) (488,000)
Decrease (increase)
in inventories 958,000 (1,008,000) (30,000)
(Increase) decrease
in prepaid
expenses (71,000) 174,000 572,000
Increase in accounts
payable and accrued
liabilities 4,325,000 426,000 688,000
Net cash provided
by operating
activities 37,179,000 20,371,000 21,880,000
Investing activities:
Purchases of property,
plant and equipment (31,803,000) (19,581,000) (14,480,000)
Payments for purchases
of companies, net of
cash acquired and
debt assumed (14,813,000) (18,601,000) (2,739,000)
Proceeds from investments
held to maturity 190,000 6,146,000 575,000
Payments for investments
held to maturity - - (2,750,000)
Proceeds from investments
available for sale 495,000 1,710,000 7,133,000
Payments for investments
available for sale - - (4,578,000)
Proceeds from disposals of
property and equipment 1,000,000 273,000 191,000
Other (201,000) (420,000) (514,000)
Net cash used in
investing
activities (45,132,000) (30,473,000) (17,162,000)
Financing activities:
Proceeds from borrowings 56,150,000 35,000 -
Proceeds from issuance
of common stock 2,125,000 930,000 183,000
Payments to repurchase
common stock - - (5,029,000)
Payments of long-term
debt (48,519,000) (9,000) (21,000)
Net cash provided by
(used in) financing
activities 9,756,000 956,000 (4,867,000)
Net increase (decrease)
in cash and cash
equivalents 1,803,000 (9,146,000) (149,000)
Cash and cash equivalents
at beginning of year 1,401,000 10,547,000 10,696,000
Cash and cash equivalents
at end of year $ 3,204,000 $ 1,401,000 $ 10,547,000
The accompanying notes are an integral part of these statements.
Notes to Consolidated Financial Statements
Note A - Summary of Significant Accounting Policies
J&J Snack Foods Corp. and Subsidiaries (the Company) manufactures, markets
and distributes a variety of nutritional snack foods and beverages to the
food service and retail supermarket industries. A summary of the
significant accounting policies consistently applied in the preparation of
the accompanying consolidated financial statements follows.
1. Principles of Consolidation
The consolidated financial statements include the accounts of J&J Snack
Foods Corp. and its wholly-owned subsidiaries. Intercompany balances and
transactions have been eliminated in the consolidated financial statements.
2. Revenue Recognition
The Company recognizes revenue when its product is shipped.
The Company sells service contracts covering frozen carbonated beverage
machines sold. The terms of coverage range between 12 and 48 months. The
Company records deferred income on service contracts which is amortized by
the straight-line method over the term of the contracts.
3. Foreign Currency
Assets and liabilities in foreign currencies are translated into U.S.
dollars at the rate of exchange prevailing at the balance sheet date.
Revenues and expenses are translated at the average rate of exchange for
the period. The cumulative translation adjustment is recorded as a
separate component of stockholders' equity.
4. Use of Estimates
In preparing financial statements in conformity with generally accepted
accounting principles, management is required to make estimates and
assumptions that affect the reported amounts of assets and liabilities, the
disclosure of contingent assets and liabilities at the date of the
financial statements, and the reported amounts of revenues and expenses
during the reporting period. Actual results could differ from those
estimates.
5. Cash Equivalents
Cash equivalents are short-term, highly liquid investments with original
maturities of three months or less.
6. Concentrations of Credit Risk
Concentrations of credit risk with respect to trade receivables are limited
due to the dispersion of the Company's customers over different industries
and geographies.
7. Inventories
Inventories are valued at the lower of cost (determined by the first-in,
first-out method) or market.
8. Depreciation and Amortization
Depreciation of equipment and buildings is provided for.by the straight-
line and accelerated methods over the assets' estimated useful lives.
Amortization of improvements is provided for by the straight-line method
over the term.of the lease or the assets' estimated useful life,
whichever is shorter. Goodwill, trademarks and rights arising from
acquisitions are amortized by the straight-line method over periods ranging
from 5 to 30 years. Management reviews the realization of goodwill based
upon past and expected performance of individual acquired businesses.
In fiscal year 1997, the Company adopted a new standard issued by the
Financial Accounting Standards Board ("FASB"), Statement of Financial
Accounting Standards ("SFAS") No. 121, "Accounting for the Impairment of
Long-Lived Assets and for Long-Lived Assets to Be Disposed Of," which
provides guidance on when to recognize and how to measure impairment losses
of long-lived assets and certain identifiable intangibles and how to value
long-lived assets to be disposed of. There was no material impact as a
result of the adoption of SFAS No. 121 on the financial position and
results of operations of the Company.
9. Fair Value of Financial Instruments
Financial instruments consist primarily of cash and cash equivalents,
investments and long-term debt. Based on the borrowing rates currently
available to the Company, long-term debt approximates fair value at
September 26, 1998 and September 27, 1997.
10. Income Taxes
The Company accounts for its income taxes under the liability method.
Under the liability method, deferred tax assets and liabilities are
determined based on the difference between the financial statement and tax
bases of assets and liabilities as measured by the enacted tax rates which
will be in effect when these differences reverse. Deferred tax expense is
the result of changes in deferred tax assets and J&J liabilities. The
principal types of differences between assets and liabilities for financial
statement and tax return purposes are vacation accruals, insurance
accruals, deferred income and accumulated depreciation.
11. Earnings Per Common Share
Earnings per common share are based on the weighted average number of
common shares outstanding, including common stock equivalents (stock
options).
The Company adopted a new standard issued by the FASB, SFAS No. 128,
"Earnings Per Share" ("EPS") in its fiscal 1998 second quarter financial
statements. The new standard eliminates primary and fully diluted EPS and
instead requires presentation of basic and diluted EPS in conjunction with
the disclosure of the methodology used in computing such EPS. Basic EPS
excludes dilution and is computed by dividing income available to common
shareholders by the weighted-average common shares outstanding during the
period. Diluted EPS takes into consideration the potential dilution that
could occur if securities or other contracts to issue common stock were
exercised and converted into common stock. The effect of adopting this new
standard was not material.
12. Accounting for Stock-Based Compensation
In fiscal 1997, the Company adopted a new standard issued by the FASB, SFAS
No. 123, "Accounting for Stock-Based Compensation," which contains a fair
value-based method for valuing stock-based compensation that entities may
use, which measures compensation cost at the grant date based on the fair
value of the award. Compensation is then recognized over the service
period, which is usually the vesting period. The Company has chosen an
alternative, permitted by the standard, to continue accounting for employee
stock options and similar equity instruments under Accounting Principles
Board ("APB") Opinion No. 25, "Accounting for Stock Issued to Employees."
13. Advertising Costs
Advertising costs are expensed as incurred. Total advertising expense was
$4,128,000, $3,892,000, and $4,119,000 for the fiscal years 1998, 1997 and
1996, respectively.
14. Interest Rate Risk Management
As part of its risk management activities, the Company uses interest rate
swaps to modify the interest rate characteristics of certain long-term
debt. The Company holds no other derivatives or similar instruments. The
derivatives contracts are designated as hedges when acquired. They are
expected to be effective economic hedges and have high correlation with the
items being hedged at inception and throughout the hedge period. The
variable interest rate of a swap contract is referenced to the same index
as the variable interest rate of the debt being hedged.
Interest rate swaps are accounted for using the accrual method, with an
adjustment to interest expense in the income statement. The effects of
swap positions are included in financing activities in the Statement of
Cash Flows. Interest receivable or payable under the swap contracts is
included in Receivables or Accounts Payable. Unrealized gains and losses
on the swaps are not recognized in the balance sheet. Realized gains and
losses from disposition or settlement of swap contracts are deferred on the
balance sheet and amortized to interest expense over the appropriate
period.
If the hedged item is settled or terminated, deferred and/or unrecognized
gains or losses on the hedging instrument on that date are recognized as an
adjustment to the gain or loss on disposition or termination of the related
hedged item. Future accruals on the swap and subsequent gains and losses
on the swap or forward contract are included in income in the period they
occur.
15. Recent Accounting Pronouncements
In June 1997, the FASB issued SFAS No. 130, "Reporting Comprehensive
Income," which is effective for years beginning after December 15, 1997.
This new standard requires entities presenting a complete set of financial
statements to include details of comprehensive income. Comprehensive
income consists of net income or loss for the current period and income,
expenses, gains and losses that bypass the income statement and are
reported directly in a separate component of equity. The effect of
adopting this new standard is not expected to have a material impact
on.financial statement presentation.
In June 1997, the FASB issued SFAS No. 131, "Disclosures about Segments of
an Enterprise and Related Information," which is effective for all periods
beginning after December 15, 1997. SFAS No. 131 requires that public
business enterprises report certain information about operating segments
in complete sets of financial statements of the enterprise and in condensed
financial statements of interim periods issued to shareholders. It also
requires that public business enterprises report certain information about
their products and services, the geographic areas in which they operate,
and their major customers.
Note B - Acquisition
In December 1997, the Company acquired the common stock of National ICEE
Corporation. National ICEE Corporation, with annual sales of approximately
$40 million, markets and distributes frozen carbonated beverages primarily
in the eastern half of the United States. The Company incurred
approximately $50 million of debt to complete the acquisition. The
following are the unaudited pro forma results of operations for the fiscal
years 1998, 1997 and 1996 assuming the above had occurred at the beginning
of that fiscal year:
1998 1997 1996
Sales $268,390,000 $259,952,000 $222,964,000
Net Earnings $11,346,000 $8,645,000 $7,036,000
Earnings per. diluted share $1.21 $.96 $.78
In January 1997, the Company acquired the assets of Mama Tish's
International Foods by assuming certain of its liabilities. Mama Tish's is
a manufacturer and distributor of Italian ices, sorbets and other frozen
juice products.
In November 1996, the Company acquired all of the common stock of
Pretzels, Inc. for cash. Trading as TEXAS TWIST, Pretzels, Inc. is a soft
pretzel manufacturer selling to both the food service and retail
supermarket industries.
In October 1996, the Company acquired the assets of Bakers Best Snack Food
Corp. for cash. Bakers Best is a manufacturer of soft pretzels selling to
both the food service and retail supermarket industries.
The acquisitions were accounted for under the purchase method of
accounting, and the operations are included in the consolidated financial
statements from the respective acquisition dates.
Note C - Credit Arrangements
To fund the acquisition of National ICEE Corporation in December 1997, and
to retire most of its debt, the Company incurred the following debt:
$40,000,000 unsecured term note, at an interest rate of 6.61% fixed through
swap agreements, with 60 monthly principal payments of $666,667 plus
interest beginning January 8, 1998. At September 26, 1998, $8,000,000 of
the note was .classified under current maturities of long-term debt. At
September 26,1998, the principal balance of the note was $34,000,000. (See
Note H.)
$10,000,000 borrowing under a $30,000,000 unsecured general-purpose bank
line of credit. Interest payments on the balance borrowed under the line
are due monthly. The interest rate on the outstanding borrowings under
the line was 6.54% at September 26, 1998. Borrowings under the credit line
were $16,000,000 at September 26, 1998. (See Note H.)
Note D - Investment Securities
The Company classifies its investments in securities in one of three
categories: held to maturity, trading and available for sale. Debt
securities that the Company has the positive intent and ability to hold to
maturity are classified as held to maturity and are reported at amortized
cost. As the Company does not engage in securities trading, the balance of
its debt securities and any equity securities are classified as available
for sale. Net unrealized gains and losses on such securities, net of
income tax, are reported as a separate component of stockholders' equity
and excluded from the determination.of net income.
Proceeds from sales of securities classified as available for sale were
$495,000, $1,710,000 and $7,133,000 for fiscal years 1998, 1997 and 1996,
respectively. The Company uses the specific identification method to
determine the cost of securities sold. No material gains or losses were
realized.on sales of investment securities.
The amortized cost, gross unrealized gains and losses, and fair market
values of the Company's investment securities held to maturity at September
26, 1998 are summarized.as follows:
Gross Gross Fair
Amortized Unrealized Unrealized Market
Cost Gains Losses Value
Corporate debt.
securities $ 947,000 $ 38,000 $ - $ 985,000
Municipal
government
securities 1,680,000 28,000 - 1,708,000
Other debt.
securities 500,000 - - 500,000
$3,127,000 $ 66,000 $ - $ 3,193,000
The amortized cost, gross unrealized gains and losses, and fair market
values of the Company's investment securities available for sale and held
to maturity at September 27, 1997 are summarized as follows:
Gross Gross Fair
Amortized Unrealized Unrealized Market
Cost Gains Losses Value
Available for sale
Corporate debt
securities $ 495,000 $ - $ - $ 495,000
Held to maturity
Corporate debt
securities $ 970,000 $ 19,000 $ - $ 989,000
Municipal
government
securities 1,870,000 3,000 (8,000) 1,865,000
Other debt
securities 500,000 - - 500,000
$3,340,000 $ 22,0000 $ (8,000) $3,354,000
The following table lists the maturities of investment securities
classified as held to maturity at September 26, 1998:
Amortized Fair Market
Cost Value
Due after one year.
through five years $ 3,127,000 $ 3,193,000
Due after five years - -
$ 3,127,000 $ 3,193,000
Note E - Inventories
Inventories consist of the following:
September 26, September 27,
1998 1997
Finished goods $ 8,054,000 $ 7,108,000
Raw materials 2,190,000 1,789,000
Packaging materials 2,239,000 2,262,000
Equipment parts and other 3,964,000 2,376,000
$ 16,447,000 $ 13,535,000
Note F - Property, Plant and Equipment
Property, plant and equipment consist of the following:
September 26, September 27, Estimated
1998 1997 Useful Lives
Land $ 839,000 $ 819,000 -
Buildings 5,432,000 5,340,000 15-39.5 years
Plant machinery
and equipment 60,275,000 51,891,000 5-10 years
Marketing. equipment 126,653,000 90,988,000 5 years
Transportation equipment 2,149,000 1,856,000 5 years
Office equipment 5,446,000 4,792,000 3-5 years
Improvements 10,616,000 7,837,000 5-20 years
Construction in progress 1,154,000 825,000 -
$212,564,000 $164,348,000
Note G - Accrued Liabilities
Included in accrued liabilities is accrued compensation of $4,297,000 and
$3,275,000 as of September 26, 1998 and September 27, 1997, respectively.
Note H - Long-Term Debt
Long-term debt consists of the following:
September 26, September 27,
1998 1997
$40,000,000 unsecured term note,
with 60 monthly principal payments
of $666,667 plus 6.61% interest
beginning January 8, 1998 (subject
to financial covenants) $ 34,000,000 $ -
$30,000,000 unsecured general-
purpose bank credit line, with
interest rate tied to LIBOR with
interest payments due monthly
(subject to financial covenants) 16,000,000 -
7.25% redeemable economic
development revenue bonds payable
December 2005; interest payable
semiannually (subject to financial
covenants) 5,000,000 5,000,000
Other 1,622,000 44,000
56,622,000 5,044,000
Less current maturities 8,423,000 16,000
$ 48,199,000 $ 5,028,000
Annual principal payments of long-term debt as of September 26, 1998 are as
follows:
1999 $ 8,423,000
2000 8,382,000
2001 24,317,000
2002 8,131,000
2003 2,369,000
2004 and thereafter 5,000,000
$ 56,622,000
Note I - Deferred Income
1. Sale of ICEE Operations in Hawaii
Deferred income consists of the Company's unrecognized gain on the sale of
its ICEE operations in Hawaii to the former President of ICEE-USA Corp. in
July 1994 for $1,100,000 in cash. Under the terms of the sale, the Company
has guaranteed the payment of a bank note by the purchaser, ICEE of Hawaii,
Inc., through the issuance of a letter of credit. The Company's guarantee
is collateralized by the assets of ICEE of Hawaii, Inc. The Company
recognizes gain on the sale as the principal due on the bank note is
reduced through payments by ICEE of Hawaii, Inc. The Company recognized
gains of $94,000, $76,000 and $83,000 for the fiscal years ended 1998, 1997
and 1996, respectively.
2. Service Contracts
During the years ended September 26, 1998 and September 27,1997, the
Company sold $509,000 and $296,000, respectively, of service contracts
related to its frozen carbonated beverage machines. At September26,1998,
deferred income on service contracts was $199,000, of which $173,000 is
reflected as short-term and included in accrued liabilities on the
consolidated balance sheet. Service contract income of $578,000 and
$179,000 was recognized for the fiscal years ended 1998 and 1997,
respectively.
Note J - Income Taxes
Income tax expense is as follows:
Fiscal year ended
September 26, September 27, September 28,
1998 1997 1996
Current (Benefit)
U.S. Federal $ 5,389,000 $ 3,381,000 $ 4,538,000
Foreign 38,000 40,000 (31,000)
State 525,000 394,000 293,000
5,952,000 3,815,000 4,800,000
Deferred (Benefit)
U.S. Federal 913,000 (3,000) (1,552,000)
Foreign 7,000 (23,000) _
State 87,000 3,000 (48,000)
1,007,000 (23,000) (1,600,000)
$ 6,959,000 $ 3,792,000 $ 3,200,000
The provisions for income taxes differ from the amounts computed by
applying the federal income tax rate of approximately 34% to earnings
before income taxes for the following reasons:
Fiscal year ended
September 26, September 27, September 28,
1998 1997 1996
Income taxes at
statutory rates $ 6,395,000 $ 4,063,000 $ 3,075,000
Increase (decrease)
in taxes resulting
from:
State income taxes,
net of federal income
tax benefit 404,000 267,000 193,000
Nontaxable
income (55,000) (120,000) (343,000)
Other net 215,000 (418,000) 275,000
$ 6,959,000 $ 3,792,000 $ 3,200,000
Deferred tax assets and liabilities consist of the following:
September 26, September 27,
1998 1997
Deferred tax assets
Vacation accrual $ 298,000 $ 296,000
Insurance accrual 515,000 404,000
Deferred income 206,000 272,000
Other, net 458,000 537,000
1,477,000 1,509,000
Deferred tax liabilities
Depreciation of property
and equipment 5,628,000 4,237,000
Other, net 236,000 652,000
5,864,000 4,889,000
$ 4,387,000 $ 3,380,000
Note K - Earnings Per Share
The Company adopted the provisions of SFAS No. 128, "Earnings Per Share"
("EPS"), which eliminates primary and fully diluted EPS and requires
presentation of basic and diluted EPS in conjunction with the disclosure of
the methodology used in computing such EPS. Basic EPS excludes dilution
and is computed by dividing income available to common shareholders by the
weighted-average common shares outstanding during the period. Diluted EPS
takes into account the potential dilution that could occur if securities or
other contracts to issue common stock were exercised and converted into
common stock. EPS calculations for 1997 and 1996 have been restated to
reflect the adoption of SFAS No. 128.
The Company's calculation of EPS in accordance with SFAS No. 128, "Earnings
Per Share," is as follows:
Fiscal Year Ended September 26, 1998
Income Shares Per Share.
(Numerator) (Denominator) Amount
Earnings Per
Basic Share
Net Income
available to common
stockholders $11,850,000 8,947,000 $1.32
Effect of
Dilutive Securities
Options - 421,000 (.06)
Earnings Per
Diluted Share
Net Income available
to common
stockholders plus
assumed conversions $11,850,000 9,368,000 $1.26
Fiscal Year Ended September 27, 1997
Income Shares Per Share.
(Numerator) (Denominator) Amount
Earnings Per
Basic Share
Net Income available
to common
stockholders $ 8,159,000 8,781,000 $.93
Effect of
Dilutive Securities
Options - 204,000 (.02)
Earnings Per
Diluted Share
Net Income available to
common stockholders
plus assumed
conversions $ 8,159,000 8,985,000 $.91
Fiscal Year Ended September 28, 1996
Income Shares Per Share
(Numerator) (Denominator) Amount
Earnings Per
Basic Share
Net Income available
to common
stockholders $ 5,843,000 8,940,000 $.65
Effect of
Dilutive Securities
Options - 76,000 _
Earnings Per
Diluted Share
Net Income available to
common stockholders
plus assumed
conversions $ 5,843,000 9,016,000 $.65
Note L - Commitments
1. Lease Commitments
The following is a summary of approximate future minimum rental commitments
for noncancelable operating leases with terms of more than one year as of
September 26, 1998:
Plants and
Offices Equipment Total
1999 $ 3,727,000 $ 3,153,000 $ 6,880,000
2000 3,117,000 2,595,000 5,712,000
2001 2,548,000 1,728,000 4,276,000
2002 2,332,000 479,000 2,811,000
2003 2,029,000 223,000 2,252,000
2004 and thereafter 11,256,000 103,000 11,359,000
$ 25,009,000 $ 8,281,000 $ 33,290,000
Total rent expense was $7,766,000, $6,002,000 and $5,748,000 for fiscal
years 1998, 1997 and 1996, respectively.
2. Other Commitments
The Company is a party to litigation which management currently believes
will not have a material adverse effect on the Company's financial
condition or results of operations.
Note M - Capital Stock
Under share repurchase programs authorized by the Board of Directors,
712,000 shares remain to be repurchased.
Note N - Stock Options
The Company has a Stock Option Plan (the "Plan"). Pursuant to the Plan,
stock options may be granted to officers and key employees of the Company
which qualify as incentive stock options as well as stock options which are
nonqualified. The exercise price of incentive stock options is at least
the fair market value of the common stock on the date of grant. The
exercise price for nonqualified options is determined by a committee of the
Board of Directors. The options are generally exercisable after three
years and expire no later than ten years from date of grant. There were
1,500,000 shares reserved under the Plan; options for 472,000 shares remain
unissued as of September 26, 1998.
The Company has a nonqualified stock option plan for nonemployee directors
and the Chief Executive Officer of the Company whereby a total of 340,000
shares of common stock may be issued. Under this plan, each nonemployee
director is granted options to purchase 3,000 shares of common stock, and
the Chief Executive Officer is granted options to purchase 25,000 shares
annually. The option price is equal to the fair market value of the common
stock at the date of grant, and the options expire ten years after date of
grant. Other nonqualified options have been issued to the Chief Executive
Officer, directors and certain employees.
The Company has adopted only the disclosure provisions of SFAS No. 123,
"Accounting for Stock-Based Compensation." It applies APB Opinion No. 25
and related interpretations in accounting for its plans and does not
recognize compensation expense for its stock-based compensation plans. Had
compensation cost for the plans been determined based on the fair value of
the options at the grant date consistent with SFAS No. 123, the Company's
net earnings and earnings per common share would have been reduced to the
pro forma amounts indicated below:
Fiscal year ended
September 26, September 27, September 28,
1998 1997 1996
Net Earnings:
As reported $ 11,850,000 $ 8,159,000 $ 5,843,000
Pro forma 11,112,000 7,697,000 5,786,000
Earnings Per
Common Share:
As reported $1.26 $.91 $.65
Pro forma 1.18 .86 .64
These pro forma amounts may not be representative of future disclosures
because they do not take into effect pro forma compensation expense related
to grants before October 1, 1995. The fair value of these options is
estimated on the date of grant using the Black-Scholes option pricing model
with the following weighted-average assumptions for grants in fiscal 1998,
1997 and 1996, respectively; expected volatility of 30% for all years;
risk-free interest rates of 5.12%, 6.71% and 6.45%; and expected lives
ranging between 4.5 and 10 years for all years.
A summary of the status of the Company's option plans as of fiscal years
1998, 1997 and 1996 and the changes during the years ended on those dates
is represented below:
Incentive Nonqualified
Stock Options Stock Options
Stock Weighted- Stock Weighted-
Options Average Options Average
Out- Exercise Out- Exercise
standing Price standing Price
Balance,
October 1, 1995 642,812 $11.42 326,000 $ 9.88
Granted 292,826 $10.00 34,000 $12.25
Exercised (21,000) $ 8.71 (45,000) $ 2.50
Cancelled (169,145) $12.03 - -
Balance,
September 28, 1996 745,493 $10.97 315,000 $11.27
Granted 267,743 $11.53 34,000 $12.75
Exercised (84,200) $ 9.38 - -
Cancelled (52,650) $11.15 - -
Balance,
September 27, 1997 876,386 $11.26 349,000 $11.41
Granted 223,396 $15.77 34,000 $19.25
Exercised (150,949) $12.56 (22,500) $ 6.63
Cancelled (52,500) $11.40 - -
Balance,
September 26, 1998 896,333 $12.18 360,500 $12.41
Exercisable Options,
September 26, 1998 274,113 326,500
The weighted-average fair value of incentive options granted during fiscal
years ended September 26, 1998, September27, 1997 and September 28, 1996
was $5.31, $4.24 and $3.62, respectively. The weighted-average fair
value of nonqualified stock options granted during fiscal years ended
September 26, 1998, September 27, 1997 and September 28, 1996 was
$10.56, $5.97 and $5.70, respectively.
The following table summarizes information.about incentive stock options
outstanding at September 26, 1998:
Options Outstanding Options Exercisable
Number Weighted- Number
Outstanding Average Weighted- Exercisable Weighted-
at Remaining Average at Average
Range of September Contractual Exercise September Exercise
Exercise Prices 26, 1998 Life Price 26, 1998 Price
$ 7.25-$10.75 202,981 2.6 years $ 9.43 34,900 $ 7.86
$11.00-$16.38 693,352 3.2 years $12.98 239,213 $11.82
896,333 274,113
The following table summarizes information about nonqualified options
outstanding at September 26, 1998:
Options Outstanding Options Exercisable
Number Weighted- Number
Outstanding Average Weighted- Exercisable Weighted-
at Remaining Average at Average
Range of September Contractual Exercise September Exercise
Exercise Prices 26, 1998 Life Price 26, 1998 Price
$ 7.25-$10.75 44,500 3.1 years $ 9.92 44,500 $ 9.92
$11.00-$13.63 282,000 4.7 years $11.98 282,000 $11.98
$19.25 34,000 9.6 years $19.25 - -
360,500 326,500
Note O - 401(k) Profit-Sharing Plan
The Company maintains a 401(k) profit-sharing plan for its employees.
Under this plan, the Company may make discretionary profit-sharing and
matching 401(k) contributions. Contributions of $512,000, $404,000 and
$313,000 were made in fiscal years 1998, 1997 and 1996, respectively.
Note P - Major Customer Information
One customer accounted for 10% of the Company's sales in each of the
fiscal years 1998 and 1997.
Note Q - Cash Flow Information
The following is supplemental cash flow information:
Fiscal year ended
September 26, September 27, September 28,
1998 1997 1996
Cash paid for:
Interest $ 2,870,000 $ 431,000 $ 367,000
Income taxes 6,461,000 4,469,000 3,077,000
Report of Independent Certified Public Accountants
Shareholders and Board of Directors
J & J SNACK FOODS CORP.
We have audited the accompanying consolidated balance sheets of J&J Snack
Foods Corp. and Subsidiaries as of September 26, 1998 and September 27,
1997, and the related consolidated statements of earnings, changes in
stockholders' equity and cash flows for each of the fiscal years in the
three-year period ended September 26, 1998. These financial statements are
the responsibility of the Company's management. Our responsibility is to
express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free
of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial
statements. An audit also includes assessing the accounting principles
used and significant estimates made by management, as well as evaluating
the overall financial statement presentation. We believe that our audits
provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the consolidated financial position of J&J Snack
Foods Corp. and Subsidiaries as of September 26, 1998 and September 27,
1997, and the consolidated results of their operations and their
consolidated cash flows for each of the fiscal years in the three-year
period ended September 26, 1998 in conformity with generally accepted
accounting principles.
Philadelphia, Pennsylvania
November 3, 1998<PAGE>
Corporate Information
Directors
Gerald B. Shreiber
Chairman of the Board,
President and Chief Executive Officer
Dennis G. Moore
Senior Vice President, Chief Financial Officer,
Secretary and Treasurer
Robert M. Radano
Senior Vice President and
Chief Operating Officer
Stephen N. Frankel
President,
Stephen N. Frankel Realtor, Inc.
Peter G. Stanley
Consultant
Leonard M. Lodish, Ph.D.
Samuel R. Harrell Professor,
Marketing Department of the
Wharton School,
University of Pennsylvania
Officers
Gerald B. Shreiber
Chairman of the Board,
President and Chief Executive Officer
Dennis G. Moore
Senior Vice President,
Chief Financial Officer,
Secretary and Treasurer
Robert M. Radano
Senior Vice President and
Chief Operating Officer
Robyn Shreiber Cook
Senior Vice President, West
Paul L. Hirschman
Vice President, Information Systems
Officers of Subsidiary Companies
J&J SNACK FOODS CORP. OF NEW JERSEY
John Duckett
Vice President, Service & Assembly
Anthony P. Harrison II
Vice President, Quality Control and Research & Development
John P. Heim
Vice President, Engineering & Manufacturing
Michael Karaban
Vice President, Marketing
H. Robert Long
Vice President, Distribution
Craig S. Parker
Vice President, School Food Service & Branded Concepts
Milton L. Segal
Vice President, Purchasing
Steven J. Taylor
Vice President, Sales
J&J SNACK FOODS CORP. OF CALIFORNIA
Don Smith
Vice President, Research and Development
MIA PRODUCTS
T.J. Couzens
Vice President/General Manager
THE ICEE COMPANY
Dan Fachner
President of The ICEE Company
Kent Galloway
Vice President and Chief Financial Officer
Joe Boulanger
Vice President/General Manager
Western Zone
Lou Fiorentino
Vice President/General Manager
Eastern Zone
Rick Naylor
Vice President/General Manager
Central Zone
Rod Sexton
Vice President of Service Operations
ICEE DE MEXICO, S.A. DE C.V.
Andres Gonzalez
Vice President
PRETZELS, INC.
Gary Powell
President
Quarterly Common Stock Data
Market Price
Fiscal 1998 High Low
1st Quarter 17 3/8 13 1/2
2nd Quarter 19 1/2 12 1/2
3rd Quarter 20 3/4 17 7/8
4th Quarter 22 1/4 14 3/4
Fiscal 1997
1st Quarter 14 1/8 10 5/8
2nd Quarter 14 1/8 10 1/2
3rd Quarter 16 1/8 11 1/4
4th Quarter 17 1/4 14 1/2
Stock Listing
The common stock of J&J Snack Foods Corp. is traded on the
over-the-counter market on the NASDAQ National Market System
with the symbol JJSF.
Transfer Agent and Registrar
American Stock Transfer & Trust Company
6201 15th Avenue
Brooklyn, NY 11219
Independent Accountants
Grant Thornton LLP
Counsel
Blank, Rome, Comisky & McCauley LLP
Annual Meeting
The Annual Meeting of Shareholders is scheduled for
Thursday, February 11, 1999 at 10:00 a.m. at the Hilton at
Cherry Hill, 2349 W. Marlton Pike,
Cherry Hill, New Jersey.
Form 10-K
Copies of the Company's Annual Report to the Securities and Exchange
Commission on Form 10-K may be obtained without charge by writing to:
J&J Snack Foods Corp..6000 Central Highway.Pennsauken, NJ 08109
Attention: Dennis G. Moore
Web Site
www.jjsnack.com
EXHIBIT 22.1 - SUBSIDIARIES OF J & J SNACK FOODS CORP.
Place of
Incorporation
J & J Snack Foods Investment Corp. Delaware
The ICEE Company Delaware
J & J Snack Foods Corp. of New Jersey New Jersey
J & J Snack Foods Corp. of California California
J & J Snack Foods Corp./Midwest Illinois
J & J Snack Foods Corp./Mia Pennsylvania
J & J Snack Foods Corp. of Pennsylvania Pennsylvania
J & J Snack Foods Sales Corp. New Jersey
J & J Snack Foods Sales Corp. of Texas Texas
J & J Snack Foods Transport Corp. New Jersey
Trotter Soft Pretzels, Inc. Pennsylvania
ICEE-Canada, Inc. Canada
ICEE de Mexico, S.A. De C.V. Mexico
J & J Restaurant Group, Inc. Pennsylvania
Mazzone Enterprises, Inc. Illinois
Bakers Best Snack Food Corp. Pennsylvania
Pretzels, Inc. Texas
148
EXHIBIT 24.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our reports dated November 3, 1998 accompanying
the consolidated financial statements and schedules incorporated by
reference or included in the Annual Report of J & J Snack Foods Corp.
and Subsidiaries on Form 10-K for the year ended September 26, 1998.
We hereby consent to the incorporation by reference of said reports
in the Registration Statement of J & J Snack Foods Corp. and
Subsidiaries on Forms S-8 (File No. 333-03833, effective May 16,
1996, File No. 33-87532, effective December 16, 1994 and File No.
33-50036, effective July 24, 1992).
GRANT THORNTON LLP
Philadelphia, Pennsylvania
December 21, 1998
149
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> SEP-26-1998
<PERIOD-END> SEP-26-1998
<CASH> 3204
<SECURITIES> 0
<RECEIVABLES> 34985
<ALLOWANCES> (597)
<INVENTORY> 16447
<CURRENT-ASSETS> 55143
<PP&E> 212564
<DEPRECIATION> (112444)
<TOTAL-ASSETS> 213261
<CURRENT-LIABILITIES> 40559
<BONDS> 48199
0
0
<COMMON> 39120
<OTHER-SE> 80561
<TOTAL-LIABILITY-AND-EQUITY> 213261
<SALES> 262390
<TOTAL-REVENUES> 262390
<CGS> 126812
<TOTAL-COSTS> 115117
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 3033
<INCOME-PRETAX> 18809
<INCOME-TAX> 6959
<INCOME-CONTINUING> 11850
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 11850
<EPS-PRIMARY> 1.32
<EPS-DILUTED> 1.26
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> SEP-27-1997
<PERIOD-END> SEP-27-1997
<CASH> 1401
<SECURITIES> 0
<RECEIVABLES> 25850
<ALLOWANCES> (392)
<INVENTORY> 13535
<CURRENT-ASSETS> 41247
<PP&E> 164348
<DEPRECIATION> (97126)
<TOTAL-ASSETS> 136827
<CURRENT-LIABILITIES> 21983
<BONDS> 5028
0
0
<COMMON> 36908
<OTHER-SE> 68996
<TOTAL-LIABILITY-AND-EQUITY> 136827
<SALES> 220318
<TOTAL-REVENUES> 220318
<CGS> 112159
<TOTAL-COSTS> 96519
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 431
<INCOME-PRETAX> 11951
<INCOME-TAX> 3792
<INCOME-CONTINUING> 8159
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 8159
<EPS-PRIMARY> .93
<EPS-DILUTED> .91
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> SEP-28-1996
<PERIOD-END> SEP-28-1996
<CASH> 10547
<SECURITIES> 1217
<RECEIVABLES> 18459
<ALLOWANCES> (257)
<INVENTORY> 11276
<CURRENT-ASSETS> 42222
<PP&E> 142100
<DEPRECIATION> (83890)
<TOTAL-ASSETS> 123128
<CURRENT-LIABILITIES> 17440
<BONDS> 5010
0
0
<COMMON> 35818
<OTHER-SE> 60890
<TOTAL-LIABILITY-AND-EQUITY> 123128
<SALES> 186018
<TOTAL-REVENUES> 186018
<CGS> 94000
<TOTAL-COSTS> 84070
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 365
<INCOME-PRETAX> 9043
<INCOME-TAX> 3200
<INCOME-CONTINUING> 5843
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 5843
<EPS-PRIMARY> .65
<EPS-DILUTED> .65
</TABLE>
