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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 10-K
(Mark One)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES AND
EXCHANGE ACT OF 1934
For the fiscal year ended August 31, 1999
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from to
Commission file number 000-17051
TUSCARORA INCORPORATED
(Exact name of registrant as specified in its charter)
Pennsylvania 25-1119372
(State or other jurisdiction of (IRS employer
incorporation or organization) Identification No.)
800 Fifth Avenue
New Brighton, Pennsylvania 15066
(Address of principle executive offices) (Zip Code)
Registrant's telephone number, including area code: 724-843-8200
Securities registered pursuant to Section 12(b) of the Act:
None
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, without par value
Preferred Share Purchase Rights
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 at least the past 90 days. Yes [X] No [ ].
Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K is not contained herein, and will not be contained,
to the best of registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [ ]
The registrant estimates that as of October 22, 1999 the aggregate
market value of the shares of its Common Stock held by non-affiliates of the
registrant was approximately $86,242,000.
As of October 22, 1999, 9,406,386 shares of Common Stock of the
registrant were issued and outstanding.
DOCUMENTS INCORPORATED BY REFERENCE:
Portions of the registrant's Annual Report to Shareholders for its
fiscal year ended August 31, 1999 are incorporated by reference into Parts I and
II of this annual report.
Portions of the Proxy Statement for the registrant's Annual Meeting of
Shareholders to be held on December 16, 1999 are incorporated by reference into
Part III of this annual report.
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PART I
ITEM 1. BUSINESS.
Tuscarora Incorporated (the "Company") was incorporated in 1962 as
Tuscarora Plastics, Inc. The corporate name was changed in 1992 to reflect
changes in the Company's business.
The Company custom designs and manufactures protective packaging and
material handling products and supplies custom designed components for
industrial and consumer product applications. In each of its markets, the
Company's focus is to engineer a practical, cost effective solution to meet each
customer's specific end-use requirements.
The Company is the largest manufacturer of custom molded products made
from expanded foam plastic materials in the United States. Protective packaging
and material handling products and components are manufactured using custom
molded foam plastic materials and thermoplastics. Protective packaging and
material handling products are also manufactured by using a variety of
materials, including corrugated paperboard, molded and/or diecut foam plastics,
thermoformed plastics and wood either alone or in various combinations. The
range of material options offered enables the Company to be competitive
vis-a-vis companies that only offer products made from a single material. The
Company's products are manufactured at the Company's custom molding, integrated
materials and thermoforming facilities (see "Manufacturing" below).
In each of the 1999, 1998 and 1997 fiscal years, the protective
packaging and material handling products contributed approximately 86% of the
Company's net sales. The remainder was accounted for by the component products.
In prior years, the Company has discussed four primary target markets
for the Company's products: high technology, automotive, consumer electronics
and appliances. During the 1999 fiscal year, the Company experienced significant
sales increases in two other market sectors which hold growth potential for the
Company: pharmaceuticals and specialty chemicals and building products and
office furniture. These market sectors have been added to the Company's list of
primary target markets. During the 1999 fiscal year, the target markets
accounted for the following approximate percentages of the Company's net sales:
high technology - 25%, automotive and recreational vehicles - 18%, consumer
electronics - 17%, appliances, large and small - 15%, building products and
office furniture - 10% and pharmaceuticals and specialty chemicals - 7%. The
Company competes in other market sectors as well.
The Company serves more than 3,600 customers, substantially all of
which are located in North America and the
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British Isles. For the 1999 fiscal year, no customer accounted for more than 4%,
and the Company's ten largest customers accounted for approximately 22%, of the
Company's net sales.
PROTECTIVE PACKAGING AND MATERIAL
HANDLING PRODUCTS
The protective packaging products made from foam plastic and other
materials are used to protect a wide range of finished products during shipment.
The products are designed to reduce or eliminate damage that may occur during
shipment and handling as a result of shock, vibration or wide temperature
fluctuations. Goods packaged in the Company's protective packaging include such
items as:
<TABLE>
<S> <C>
Computers and computer peripherals Water heaters and air conditioners
Televisions and VCRs Refrigerators
Satellite dishes Microwave ovens
Office equipment Coffee makers and other kitchen
Vaccine containers appliances
Liquid chemicals Toys
Pharmaceuticals Outboard motors
Military equipment Office furniture
</TABLE>
Until recently, the Company's focus has been limited to providing interior
protective packaging; i.e., packaging where the customer's goods, together with
the Company's protective packaging, are placed inside exterior shipping
containers prior to shipment. Presently, the Company more and more has been
providing protective packaging that includes outer containers made of corrugated
paperboard, wood or thermoplastics. The Company also supplies customers with
value added features such as molded or diecut partitions that position
accessories such as electronic cables and operating manuals that are shipped
with the customer's goods. Similar value added secondary services are also being
provided in regard to the Company's material handling products and components
(see "Components" below).
The material handling products generally serve the same purposes and
functions as the protective packaging products but are used primarily in
intra-plant and inter-plant movement of parts and components rather than
shipment of finished goods. For example, automobile manufacturers and their
suppliers transport parts to assembly plants using foam dunnage trays made by
the Company. Material handling products also frequently serve as carriers to
position parts for automated assembly. The Company also manufactures insulated
shippers which transport temperature-sensitive materials for the pharmaceutical
and chemical industries. The material handling products are generally more
durable than the protective packaging products and are usually reusable,
providing a cost-effective means of transporting materials that are sensitive or
difficult to
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handle. Most of the material handling products are foam plastic shapes; however,
certain material handling products, such as durable returnable material handling
pallets, trays and fixtures, are made from thermoformed as well as integrated
materials.
The protective packaging and material handling products made
from expanded foam plastic materials possess an unusual combination of useful
properties such as exceptional lightness, impact resistance and shock
absorbency, toughness and strength, thermal insulating efficiency, temperature
tolerance, buoyancy and chemical and biological neutrality. The cost of the
products to the customer is often less than alternative types of materials
because, pound for pound, less material is required to provide equal or better
protection. These products can also be easily and quickly handled thus reducing
the customer's labor costs. Because foam plastic packaging shapes frequently
require less space and are lighter than most other packaging materials, the
customer is often able to reduce its product shipping costs. Similarly, properly
designed foam plastic material handling devices often increase total yield per
transportation container, thus reducing intra-plant or inter-plant freight cost.
The protective packaging and material handling products made from a
variety of materials are made by integrating foam plastic shapes with other
materials such as corrugated paperboard and wood to produce products with
superior properties and/or lower costs compared to products made from a single
material. As a result of the recent acquisition of Lane Container Company (see
"Business Acquisitions" below), the Company's product offerings of specialty
corrugated containers and custom wood crating products have been significantly
enhanced.
Thermoformed products are used to hold goods and parts in place during
shipment or handling. Thermoformed products are used where the shock absorbency
or thermal insulating properties of foam plastic are not required. Because
transparent plastic materials can be thermoformed, these materials are often
used to create a package that allows the consumer to view the enclosed product.
The Company supplies thermoformed products to most of the Company's target
markets.
For the 1999, 1998 and 1997 fiscal years, sales of products
manufactured by the Company's integrated materials facilities accounted for
approximately 20%, 19% and 18%, respectively, of the Company's net sales.
During the 1999, 1998 and 1997 fiscal years, sales of products
manufactured by the Company's thermoforming
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facilities, including components (see "Components" below), accounted for
approximately 5%, 6% and 4%, respectively, of the Company's net sales.
COMPONENTS
The Company manufactures molded foam plastic shapes which are used as
components in automobiles, watercraft and recreational vehicles. Due to their
light weight and high energy-absorbing properties, molded foam shapes are used
as bumper cores and are positioned in door panels, steering wheels and
dashboards to provide added passenger protection. Flotation and/or seating
assemblies are made for watercraft and recreational vehicles.
The Company manufactures thermal insulation components which are foam
plastic shapes used by appliance manufacturers to provide insulation in products
such as home and commercial refrigerators, freezers, air conditioners and water
coolers. The construction industry also uses these shapes as insulation in
poured concrete or block walls, in prefabricated metal buildings and as core
material for factory-manufactured steel exterior doors.
In the high technology area, the Company has a license for E-PAC, a
design-for-assembly technology, utilizing foam plastic shapes. E-PAC is a
concept for the internal assembly of electronic components that enables
electronic device manufacturers to reduce both material cost and assembly time
by bundling delicate electronic componentry into a lightweight, protective
carrier that is placed inside an exterior housing.
The Company also makes components from thermoformed materials.
Components made from thermoformed materials are used in applications such as
garage door panels and motor vehicle trim.
CUSTOM DESIGN
Virtually all of the Company's products are custom designed. The
Company has eight design and testing centers which support the Company's sales
efforts and manufacturing operations. The centers are staffed by design and
engineering personnel who study and evaluate the requirements of the Company's
customers. Five of the centers are certified International Safe Transit
Association (ISTA) testing laboratories. The Company's customers make extensive
use of the design and testing centers.
With respect to the custom molding operations, prototype foam shapes
are developed at the design and testing centers. After a shape is approved by
the customer, one or
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more aluminum production molds are made and then shipped to a custom molding
facility, generally the one nearest the customer, for production. The Company
makes most of the production molds for its manufacturing operations in the
United States and Mexico at a single mold making facility in the United States.
In the United Kingdom, the making of the production molds is outsourced to a
third party.
The design and testing centers and mold making facility are equipped
with and extensively use computer-aided design (CAD) and computer-aided
manufacturing (CAM) systems.
MANUFACTURING
The Company has five operating divisions and 36 manufacturing
facilities, including the mold making facility. All but six of the facilities
are located in the United States; four are in the United Kingdom and two in
Mexico. The divisions are the Eastern Division, Midwestern Division, Southern
Division and Western Division (which includes the Mexican operations) in the
United States and the U.K. Division. The divisions in the United States, each of
which consists of from six to ten manufacturing facilities, were formed in
recognition of the Company's expansion nationwide and the corresponding need for
management decentralization.
The Company's manufacturing facilities are generally strategically
situated near manufacturing facilities of major customers and/or major markets.
The location of the manufacturing facilities, as well as the design and testing
centers and sales offices, is set forth under Item 2 of this annual report.
Custom molded foam plastic products are produced by causing plastic
beads to be blown into an aluminum production mold inserted in an automatic
molding machine. Time and pressure controlled heat (in the form of steam) is
applied to the beads in the mold, causing the beads to further expand, soften
and fuse together to form the shape of the product which is then stabilized
before removal from the molding machine. Significant capital expenditures for
molding machines and auxiliary equipment are required to manufacture custom
molded products. Auxiliary equipment includes air compressors, steam boilers,
cooling towers, conveyors, drying equipment and a wide variety of other standard
industrial machinery and equipment. The major items of expense in the
manufacture of the custom molded products are the plastic resins from which the
products are made, labor and the utilities needed to operate the molding
machines and other equipment.
The manufacture of the products made from integrated materials and the
thermoformed products is less capital intensive. In the integrated materials
operations, the
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machinery and equipment consists primarily of machining and fabricating
equipment for forming foam plastic, corrugated paperboard and wood products.
Fabrication of foam plastic involves the cutting of shapes from billets or
planks of foam plastic using specialized cutting tools and hot wire equipment.
Fabrication of corrugated paperboard involves slitting, die-cutting, folding and
gluing the paperboard. The fabrication of wood products employs conventional
power saws and other wood-working machinery. The fabricated parts are then
assembled to produce products to meet each customer's specific end-use
requirements.
Thermoforming is the process by which rigid sheets of hard
thermoplastic, such as ABS or high density polyethylene, are heated and then
vacuum and/or pressure formed over molds to create specific shapes. As a result
of recent acquisitions (see "Business Acquisitions" below), the Company has the
ability to produce thermoformed products from thin gauge material in a roll-fed
in-line manufacturing process as well as from heavy gauge material through a
sheet-fed process.
Where necessary, molded foam plastic shapes and thermoformed shapes
used in the manufacture of products made from integrated materials are shipped
from the facility where these shapes are made to the appropriate integrated
materials facility for integration with other materials.
The major items of expense in the manufacture of the products made from
integrated materials and the thermoformed products are the materials from which
the products are made, labor and electricity costs.
In general, the Company receives purchase orders from its customers
which do not specify quantity production and delivery dates. Production against
orders is determined by the customers' production schedules with the result that
products are generally required to be produced and delivered on short notice.
Production levels are generally determined by customer release patterns rather
than the backlog of purchase orders.
The proximity of the Company's manufacturing facilities to the
Company's customers ensures timely delivery of products and enables the Company
to provide products without a significant shipping cost. Production flexibility
also exists among the Company's facilities since molds and/or molding machines
and other manufacturing equipment can be moved quickly from one facility to
another.
All the Company's manufacturing facilities have warehousing capacity
for inventories of finished goods. Warehouses are located at other locations as
well. Distribution of products from the manufacturing facilities and warehouses
to
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customers is made by Company operated tractor-trailers and by common carrier.
Most of the Company operated tractor-trailers are leased.
In the area of quality improvement, ISO and QS registration, and
customer satisfaction, the Company has made excellent progress. Six
manufacturing facilities achieved ISO registration during the 1999 fiscal year,
bringing the total number of plants that have achieved or have been recommended
for ISO or QS registration to 19. The Company expects that all the manufacturing
facilities will be registered by the end of the 2000 fiscal year.
SALES
Sales are made primarily by the Company's own sales force which,
including supporting technical personnel at the Company's design and testing
centers, consists of 111 salaried employees. Sales offices are located at all
the design and testing centers. In addition, sales in certain geographic areas
and to certain accounts are handled by sales representatives paid on a
commission basis who are assisted and supported by Company personnel.
FOREIGN OPERATIONS
The Company commenced doing business in the United Kingdom as a result
of a business acquisition during the 1995 fiscal year. The business there has
since been expanded through other business acquisitions and site development.
The Company has had a leased manufacturing facility in Juarez, Mexico
since 1994. This facility has enabled the Company to provide custom molded
protective packaging for domestic customers that have established "Maquiladora"
operations along the U.S.-Mexican border. Maquiladora programs permit domestic
companies to ship component parts in bond into Mexico, assemble them and then
ship the assembled product in bond back into the United States for sale to their
domestic customers. During the 1998 fiscal year, the Company established a
second similar facility in Tijuana, Mexico where the Company has thermoforming
as well as custom molding operations. Over time, it is expected that the Mexican
facilities will also serve customers manufacturing and selling their products in
Mexico. The Company is presently exploring opportunities to serve high
technology customers in Guadalajara, Mexico.
The United Kingdom operations have shown an operating loss during each
of the last three fiscal years; however, there was a significant reduction in
the operating loss in the 1999 fiscal year due principally to improved operating
efficiencies. The operating income of the Mexican operations showed
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significant improvement in the 1999 fiscal year. During the 1998 fiscal year,
there was a substantial decline in the operating income of the Mexican
operations due primarily to the costs associated with the establishment of the
new facility in Tijuana. For further information with respect to the foreign
operations, see Notes 10 and 16 of the Notes to Consolidated Financial
Statements and Management's Discussion and Analysis of Results of Operations and
Financial Condition contained in the Company's Annual Report to Shareholders for
the 1999 fiscal year and incorporated herein by reference.
The Company's operations in the United Kingdom and Mexico are conducted
through subsidiaries. The Company has no other subsidiaries which play an
important role in the Company's business.
The Company's export sales from the United States are not significant.
RAW MATERIALS
The materials from which the Company's custom molded products are made
are expandable polystyrene ("EPS"), expanded polypropylene ("EPP"), expanded
polyethylene ("EPE"), ARCEL(TM) and high heat-resistant styrene-based resins.
All the raw material resins are petroleum based. EPP and EPE are polyolefin
resins and ARCEL(TM) is a co-polymer of polyethylene and polystyrene.
EPS is received by the Company in an unexpanded state and in its raw
form has an appearance much like table salt. ARCEL(TM) and the high
heat-resistant resins are also received by the Company in an unexpanded state.
Under conditions of time and pressure controlled heat, the raw material beads
can be expanded to many times their original size with no increase in weight.
The Company expands the beads to various densities depending upon the properties
desired and stores the expanded beads until the final products are molded. In
contrast, the EPP and EPE beads are already expanded when received by the
Company and do not require further expansion before molding.
Most of the Company's custom molded products are made from EPS. The
other resins are particularly suitable for certain applications and are
significantly more expensive. Accordingly, the products made from the other
resins sell at higher prices than the products made from EPS. During the 1999,
1998 and 1997 fiscal years, approximately 24%, 26% and 20%, respectively, of the
Company's net sales of custom molded products have been attributable to products
made from the premium resins. The increase in net sales during the 1999 and 1998
fiscal years reflects the use of these resins in the manufacture of custom
molded products made to protect computers
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and other high technology equipment and as components in automobiles, watercraft
and recreational vehicles.
The Company has never experienced a shortage of the resins used in the
manufacture of the custom molded products and does not foresee that any shortage
will occur. EPS, EPP and EPE are generally available from a number of suppliers
who sell to any prospective purchaser. The high heat-resistant resins and
ARCEL(TM) are each sold by a single supplier but are also generally available.
The price of EPS has declined during the last three fiscal years and
has resulted in some reductions in the selling price of products made from EPS.
There was, however, an increase in the price of EPS during the last quarter of
the 1999 fiscal year which enabled the Company to increase selling prices for
EPS products.
The materials (including corrugated paperboard, wood and foam billets
and planks) used in the manufacture of products made from integrated materials
and the materials used in the thermoforming operations are also readily
available.
COMPETITION
The Company's protective packaging and material handling products
compete with similar products made by others as well as with other types of
protective products. A majority of the similar products is produced by
independent manufacturers who generally market their products in a particular
geographic area from a single or limited number of facilities. While the Company
is considerably larger than most of the manufacturers of similar products, the
Company's penetration in the total protective packaging market is still
relatively small. A number of the companies which produce competing products,
particularly paper and corrugated packaging products, are well established and
have substantially greater financial resources than the Company.
The components manufactured by the Company for thermal insulation
represent a small portion of the overall market for insulation products. Because
of the specialized nature of the Company's products, the Company competes
primarily with other manufacturers of similar foam plastic products, rather than
with manufacturers of alternative insulation products. With the exception of
E-PAC, which is licensed technology, the other components manufactured by the
Company can be provided by other vendors using similar or alternative materials.
Competition between the Company and manufacturers of similar products
is based primarily on product engineering, price and customer service.
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CAPITAL EXPENDITURES
Capital expenditures for property, plant and equipment during the 1999,
1998 and 1997 fiscal years (not including expenditures in connection with
business acquisitions) amounted to $19,491,000, $24,153,000 and $21,318,000,
respectively.
Capital expenditures included above for land, buildings and
improvements during the 1999, 1998 and 1997 fiscal years amounted to $7,064,000,
$5,702,000 and $5,892,000, respectively. The 1999 fiscal year expenditures
included expenditures for the purchase of the custom EPS molding facility in
Lewisburg, Tennessee, which was previously leased, additional expenditures at
the new custom molding facility in Brenham, Texas (see "New Site Development"
below), installation of custom molding capabilities at the integrated materials
facility in Hayward, California acquired during the 1997 fiscal year (see
"Business Acquisitions" below) and expenditures for plant modernization at the
custom molding facility in Sallisaw, Oklahoma acquired during the 1999 fiscal
year (see "Business Acquisitions" below).
Capital expenditures included above for machinery and equipment during
the 1999, 1998 and 1997 fiscal years amounted to $12,427,000, $18,451,000 and
$15,426,000, respectively. During the 1999 fiscal year, $3,924,000 of these
expenditures was for automatic molding machines used in the custom molding
operations, $1,604,000 for manufacturing equipment used in the integrated
materials and thermoforming operations and $5,966,000 for auxiliary equipment
primarily for the custom molding operations. In addition, $933,000 was expended
during the 1999 fiscal year for environmental control equipment (see
"Environmental Considerations" below). Capital expenditures during the 1998
fiscal year were higher than in the 1999 and 1997 fiscal years, primarily as a
result of higher than expected machinery and equipment costs associated with the
Company's new facilities in Brenham, Texas and Tijuana, Mexico where production
commenced during the 1998 fiscal year. The capital expenditures for the 2000
fiscal year are expected to be substantially the same as the capital
expenditures for the 1999 fiscal year.
BUSINESS ACQUISITIONS
On September 1, 1999, the Company acquired the principal business and
operating assets of Lane Container Company in Dallas, Texas. This company has
particular expertise in specialty corrugated containers, heavy wall corrugated
fabrication and custom wood crating products and is expected to add in excess of
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$8 million of new revenues in the 2000 fiscal year. The Company will continue
the business acquired at the same location under a lease with a third party. The
amount paid and to be paid in connection with the acquisition is not material.
Expenditures in connection with business acquisitions during the 1999
and 1998 fiscal years were also not significant. In February 1999, the Company
acquired the custom molding business, including the associated real estate, of
Berry Packaging, Inc. in Sallisaw, Oklahoma. In June 1998, the Company acquired
a small EPS custom molding business in Meriden, Connecticut and moved the
business acquired to the Company's existing custom molding facility in Putnam,
Connecticut.
During the 1997 fiscal year, the Company acquired two custom molding
facilities, two integrated materials facilities and two thermoforming
facilities. In September 1996, the Company acquired the thermoforming business
of FormPac Corporation in Sandusky, Ohio; in October 1996, the Company acquired
all the outstanding capital stock of EPS (Moulders) Ltd., a custom molding
business in Livingston, Scotland; in April 1997, the Company acquired the
thermoforming business of Thermoformers Plus in Chula Vista, California (near
San Diego); in May 1997, the Company acquired the integrated materials business
of Allgood Industries, Inc. in Hayward, California (near San Francisco); and in
July 1997, the Company acquired all the outstanding capital stock of Arrowtip
Mouldings Limited, a custom molding and fabricating business with separate
custom molding and integrated materials facilities in London, England. The
aggregate purchase price recorded for these acquisitions during the 1997 fiscal
year, totaled $16,694,000, including notes and other obligations payable valued
at $2,116,000 and contingent consideration valued at $754,000.
The Company's net sales for the 1999 fiscal year amounted to
$233,841,000 as compared with $232,902,000 for the preceding fiscal year. The
increase was due to the business acquisitions in the 1999 and 1998 fiscal years
and to higher sales levels in the consumer electronics and high technology
industries in the second half of the 1999 fiscal year. The overall increase in
net sales was achieved despite lower selling prices for EPS products due to
lower EPS resin costs (see " Raw materials" above) and other factors (see
Management's Discussion and Analysis of Results of Operations and Financial
Condition contained in the Company's Annual Report to Shareholders for the 1999
fiscal year and incorporated herein by reference).
For further information with respect to the business acquisitions
during the last three fiscal years, see Notes 12 and 17 of the Notes to
Consolidated Financial Statements included in the Company's Annual Report to
Shareholders for the 1999 fiscal year and incorporated herein by reference.
The Company will continue to look for acquisitions which mesh well with
the Company's business.
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NEW SITE DEVELOPMENT
The Company has also established a number of manufacturing facilities
through new site development during the last three fiscal years.
During the 1999 fiscal year, the Company established a new integrated
materials facility in Lindon, Utah; and during the 1998 fiscal year, as
indicated above, the Company completed the construction of, and began production
at, new custom molding facilities in Brenham, Texas and Tijuana, Mexico.
Strategically located between Houston and Austin, Texas, the Brenham facility
serves Compaq Computer Corporation and other high tech companies in southeast
Texas. The Tijuana facility serves domestic companies that have established
"Maquiladora" operations along the U.S.- Mexican border (see "Foreign
Operations" above).
During the 1997 fiscal year, production commenced at a new custom
molding facility which the Company constructed in Storm Lake, Iowa. In May 1998,
this facility was sold by the Company to, and then leased back by the Company
from, an industrial development authority. The lease has been reflected as a
capitalized lease for financial reporting purposes.
The Company will continue to develop new production sites as they are
needed to meet the needs of its customers.
SEASONALITY
The Company's net sales and net income are subject to some seasonal
variation both in North America and the British Isles. In both areas, the
Company's business generally declines in the second fiscal quarter (primarily in
December) due to a reduction in manufacturing activity by the Company's
customers. See Note 18 of the Notes to Consolidated Financial Statements
included in the Company's Annual Report to Shareholders for the 1999 fiscal year
and incorporated herein by reference.
EMPLOYEES
As of August 31, 1999, the Company had 1,890 employees, of which 541
were employed in the United Kingdom and Mexico. Of the total, 461 were salaried
employees and 1,429 were paid on an hourly basis. Of the hourly employees, 360
at eight manufacturing facilities, including one in the United Kingdom, are
covered by collective bargaining agreements with seven different unions. The
agreements, except for the one in the United Kingdom which is currently being
renegotiated, expire at various dates from June 1, 2000 through October 23,
2003. The Company considers its labor relations to be good and has never
suffered a work stoppage as a result of a labor conflict.
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ENVIRONMENTAL CONSIDERATIONS
The Company has obtained air and other applicable environmental permits
for all the custom molding facilities in the United States and Mexico. Air
permits are not required in the United Kingdom. Certain of the permits restrict
the amount of pentane (a blowing agent contained in the Company's foam plastic
resins) which may be released during the manufacturing process. Pentane is a
volatile organic compound (VOC). VOCs have been linked to smog in the
atmosphere, particularly in densely populated areas. The need to reduce the
emissions of this gas has resulted in capital expenditures for batch
pre-expanders which allow the Company to use low pentane content EPS. Pentane
abatement systems have also been installed at certain custom molding facilities.
Air permits have not been required for the Company's integrated materials and
thermoforming facilities.
The Company has acquired recycling equipment for all its custom molding
and integrated materials facilities. The equipment includes (i) regrinders which
enable the Company to reuse in-house scrap and molded foam received from
original equipment manufacturers, customers and consumers, (ii) EPS densifiers
which enable the Company to compact scrap and molded foam collected for
reprocessing in the polystyrene recycling market and (iii) balers which enable
the Company to compact in-house corrugated paperboard scrap for reprocessing.
In-house scrap resulting from the manufacture of thermoformed products is
returned to the raw material suppliers of these materials for recycling.
If necessary, the Company's products may also be safely landfilled or
incinerated.
During the 1999, 1998 and 1997 fiscal years, the Company's capital
expenditures for environmental matters, including environmental control
equipment, amounted to $1,168,000, $1,341,000 and $1,745,000, respectively.
Capital expenditures for environmental matters during the 2000 fiscal year are
expected to amount to approximately $1,000,000.
In 1996, the Company commenced a voluntary program under which
environmental compliance audits are being conducted over a period of time for
all the Company's manufacturing facilities in the United States. At the end of
the 1999 fiscal year, 24 audits had been completed. The audits have been
conducted by an independent environmental consulting firm and have not resulted
in plans for any significant additional capital expenditures for environmental
matters.
There has been public concern that using chloro-fluoro-carbons
("CFCs") in the manufacture of plastic products
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may deplete the Earth's upper atmospheric ozone layer. The Company does not use,
nor has it ever used, CFCs in the manufacture of any of its products.
BUSINESS SEGMENTS
During the fourth quarter of the 1999 fiscal year, the Company adopted
Statement of Financial Accounting Standards (SFAS) No. 131, "Disclosures about
Segments of an Enterprise and Related Information". Management believes that the
Company currently operates in a single business segment as a designer and
manufacturer of protective packaging and material handling products and
components.
The geographic distribution of net sales and operating income (loss)
for the 1999, 1998 and 1997 fiscal years and of long-lived assets at August 31,
1999, 1998 and 1997 among the United States, the United Kingdom and Mexico, as
required by SFAS No. 131, is set forth in Note 16 of the Notes to Consolidated
Financial Statements contained in the Company's Annual Report to Shareholders
for the 1999 fiscal year and incorporated herein by reference
ITEM 2. PROPERTIES.
The Company's headquarters are located at 800 Fifth Avenue, New
Brighton, Pennsylvania 15066.
Custom Molding Facilities. The Company has custom molding facilities at
25 locations as follows:
<TABLE>
<S> <C>
Colorado Springs, Colorado Greeneville, Tennessee
Putnam, Connecticut Lewisburg, Tennessee
Conyers, Georgia (two facilities)
Streator, Illinois Brenham, Texas
Storm Lake, Iowa Sterling, Virginia
Chesaning, Michigan Pardeeville, Wisconsin
Tupelo, Mississippi Juarez, Chih., Mexico
Las Cruces, New Mexico Tijuana, B.C., Mexico
Cortland, New York London, England
Butner, North Carolina Northampton, England
Marion, Ohio Spennymoor, England
Sallisaw, Oklahoma Livingston, Scotland
New Brighton, Pennsylvania
</TABLE>
During the 1999 fiscal year, the Company acquired the custom molding
facility in Sallisaw, Oklahoma (see "Business Acquisitions" under Item 1) and
during the 1998 fiscal year, the Company completed construction of, and
commenced production at, the custom molding facilities in Brenham, Texas and
Tijuana, Mexico (see "New Site Development" under Item 1). The Company acquired
the custom molding facilities in London, England and Livingston, Scotland (see
"Business Acquisitions" under Item 1) and completed construction of, and
commenced production at, the custom molding facility in Storm Lake, Iowa (see
"New Site Development" under Item 1) during the 1997 fiscal year.
The Company manufactures products from EPS at all the custom molding
facilities except at one of the facilities in Lewisburg, Tennessee and at Storm
Lake, Iowa. These facilities are dedicated polyolefins plants where products are
only made from EPP or EPE. Products are also made from one or more of the
Company's premium raw material resins at a majority of the other custom molding
facilities.
Integrated Materials Facilities. The Company has integrated materials
operations at thirteen locations, including five of the sites listed above as
custom molding facilities. The locations of the eight separate integrated
materials facilities are as follows:
-14-
<PAGE> 16
<TABLE>
<CAPTION>
<S> <C>
Hayward, California Darlington, Pennsylvania
Colorado Springs, Colorado Dallas, Texas
Holden, Massachusetts Lindon, Utah
Saginaw, Michigan Burlington, Wisconsin
</TABLE>
The Company established the integrated materials facility in Lindon,
Utah during the 1999 fiscal year (see "New Site Development" under Item 1) and
on September 1, 1999 acquired the integrated materials facility in Dallas, Texas
(see "Business Acquisitions" under Item 1). The Company is in the process of
transferring its integrated materials operations in Beaver, Pennsylvania (which
has been listed in previous annual reports) to the facility in Darlington,
Pennsylvania. The Company has added custom molding capabilities at the facility
in Hayward, California which was acquired during the 1997 fiscal year (see
"Capital Expenditures" and "Business Acquisitions" under Item 1).
Thermoforming Facilities. The Company's principal thermoforming
facility is located in Sandusky, Ohio. This facility was acquired during the
1997 fiscal year (see "Business Acquisitions" under Item 1). Thermoforming
operations are also conducted at a separate site in Conyers, Georgia, at the
custom molding facility in Tijuana, Mexico and at the integrated materials
facility in Burlington, Wisconsin.
Design and Testing Centers. The Company's custom molding and integrated
materials operations are supported by seven design and testing centers. These
centers are located at the Company's headquarters in New Brighton, Pennsylvania,
at the custom molding facility in Colorado Springs, Colorado, at the
manufacturing facilities in Hayward, California, Holden, Massachusetts and
Northampton, England and at separate sites in Conyers, Georgia and Grand Blanc,
Michigan. The Grand Blanc center primarily serves the automotive industry. The
Company's thermoforming operations are supported by a design and testing center
at the facility in Sandusky, Ohio. Sales offices are located at each of the
design and testing centers.
Other Facilities. The Company's mold making facility is in Sun Prairie,
Wisconsin. This facility is considered a manufacturing facility because most of
the aluminum production molds that are made by the Company at this facility are
sold to and are owned by the Company's customers.
While no new production sites are presently contemplated, the Company
recently established a distribution facility in Dublin, Ireland, which is
currently being supplied by the manufacturing facilities in England and
Scotland.
-15-
<PAGE> 17
Miscellaneous. Most of the custom molding facilities are owned while a
majority of the other facilities are leased. The Company has options to purchase
most of the leased facilities and generally makes substantial leasehold
improvements to, and exercises its options to purchase, the leased facilities.
The leases expire at various dates through November 2007. In many cases, the
leases may be extended at the Company's option.
The Company has warehouse facilities at each manufacturing location.
Additional warehouse facilities are located near certain of the Company's
manufacturing facilities and near the manufacturing facilities of certain major
customers. All the outside warehouse facilities are leased.
The Company believes that its facilities are generally well suited for
their respective uses and that they are generally adequately sized and designed
to provide the operating efficiencies necessary for the Company to be
competitive. The Company continually expands and modernizes its existing
facilities and establishes new facilities as necessary to meet the demand for
its products.
Information with respect to the machinery and equipment used in the
Company's manufacturing operations and the Company's transportation equipment is
included in Item 1 of this report. The information is incorporated in this Item
2 by reference.
-16-
<PAGE> 18
ITEM 3. LEGAL PROCEEDINGS.
John C. Bartram, Administrator of the Estate of Dwayne Scott Mount,
Deceased v. Tuscarora Incorporated, et al. - Case No. 96CV-0511 in the Court of
Common Pleas for Marion County, Ohio. In December 1996, the Administrator of the
Estate of Dwayne Scott Mount (the "Decedent") filed a Complaint for Wrongful
Death in the captioned civil action against the Company and Toyo Machine and
Metal Co., Ltd. ("Toyo"). Decedent, an employee of the Company, was killed in
May 1996 while working on a molding machine at the Company's custom molding
plant in Marion, Ohio. The molding machine was manufactured by Toyo. Count I of
the Complaint states an intentional employer tort claim and alleges that the
Decedent was wrongfully killed as a result of certain alleged intentional
conduct of the Company. Under Count I, plaintiff seeks both compensatory and
punitive damages from the Company of not less than $5,000,000. Count II of the
Complaint stated a products liability claim and alleged that the Decedent was
wrongfully killed as a result of the defective design and/or manufacture of the
molding machine by Toyo. Under Count II, plaintiff sought both compensatory and
punitive damages from Toyo. In March 1999, plaintiff voluntarily dismissed,
without prejudice, its claims against Toyo.
Having learned during discovery that the Company did not own the
molding machine but used it under an agreement with Kaneka America Corporation
("Kaneka America"), the plaintiff, upon Motion made to the Court in April 1998,
was permitted by the Court to file an Amended Complaint which named Kaneka
America and Kaneka Texas Corporation ("Kaneka Texas") as additional defendants.
Kaneka America, the owner of the molding machine at the time it was acquired by
the Company, leased the machine to Kaneka Texas in April 1992 and then sold it
to Kaneka Texas in March 1995. The Amended Complaint added a Count III which
stated a breach of contract claim against Kaneka America and/or Kaneka Texas
alleging that the Decedent was wrongfully killed as a result of the failure of
Kaneka America and/or Kaneka Texas to assist the Company in maintaining the
safety of the molding machine pursuant to the agreement between the Company and
Kaneka America. Under Count III, plaintiff sought both compensatory and punitive
damages from Kaneka America and/or Kaneka Texas of not less than $5,000,000. In
June 1999, plaintiff settled its claims against Kaneka America and Kaneka Texas
for $75,000.
The Company is vigorously contesting the lawsuit and has denied the
allegations against the Company and asserted various defenses including that the
plaintiff's claim is barred pursuant to the Ohio Workers' Compensation statute.
The lawsuit is scheduled for trial in June 2000. In the opinion of
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<PAGE> 19
management, the disposition of the proceeding should not have a material adverse
effect on the Company's financial position or results of operations.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
No matters were submitted to a vote of security holders of the Company
during the fiscal quarter ended August 31, 1999.
EXECUTIVE OFFICERS OF THE COMPANY
In accordance with Instruction 3 to Item 401(b) of Regulation S-K,
information with respect to the executive officers of the Company is set forth
below.
<TABLE>
<CAPTION>
Name Age Office with the Company
- ------------------- --- ----------------------------------------
<S> <C> <C>
John P. O'Leary, Jr. 52 President and Chief Executive Officer
David C. O'Leary 50 Senior Vice President and Chief
Operating Officer
Brian C. Mullins 58 Senior Vice President, Chief Financial
Officer and Treasurer
</TABLE>
John P. O'Leary, Jr. has been President and Chief Executive Officer of
the Company since prior to September 1994. He has been a director of the Company
since 1974 and became Chairman of the Board of Directors in August 1994.
David C. O'Leary has been a Vice President and the chief operating
officer of the Company since May 1997. His title was changed to Senior Vice
President and Chief Operating Officer in October 1998. He was Vice
President-Sales and Marketing from prior to September 1994 to May 1997. The Vice
Presidents in charge of the Company's operating divisions report directly to
David C. O'Leary.
Brian C. Mullins has been Vice President and Treasurer of the Company
as well as its chief financial and accounting officer since prior to September
1994. His title was changed to Senior Vice President, Chief Financial Officer
and Treasurer in October 1998.
John P. O'Leary, Jr. and David C. O'Leary are brothers.
The executive officers are elected annually by the Board of Directors
at an organization meeting which is held immediately after each Annual Meeting
of Shareholders.
-18-
<PAGE> 20
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED
STOCKHOLDER MATTERS.
The Company's Common Stock is traded in the over-the-counter market on
the National Market System of the National Association of Securities Dealers
("NASDAQ"). The Common Stock trades under the NASDAQ symbol TUSC. As of August
31, 1999, there were 708 holders of record of the Company's Common Stock.
Information with respect to the market prices of, and the cash
dividends paid with respect to, the Company's Common Stock during the fiscal
years ended August 31, 1999 and 1998 appears in Note 18 - Quarterly Financial
Data (unaudited) of the Notes to Consolidated Financial Statements contained in
the Company's Annual Report to Shareholders for the fiscal year ended August 31,
1999 and is incorporated herein by reference.
ITEM 6. SELECTED FINANCIAL DATA.
The selected financial data required by this Item 6 is furnished by the
"Eleven Year Consolidated Financial Summary" which appears on the bottom half of
the inside front cover of the Company's Annual Report to Shareholders for the
fiscal year ended August 31, 1999 and is incorporated herein by reference.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATION.
The information required by this Item 7 appears under the caption
"Management's Discussion and Analysis of Results of Operations and Financial
Condition" on pages 25 through 30 of the Company's Annual Report to Shareholders
for the fiscal year ended August 31, 1999 and is incorporated herein by
reference.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET
RISK.
The quantitative and qualitative disclosure about market risk required
by this Item 7A appears in the Management's Discussion and Analysis of Results
of Operations and Financial Condition under the caption "Market Risks" on page
28 of the Company's Annual Report to Shareholders for the fiscal year ended
August 31, 1999 and is incorporated herein by reference.
-19-
<PAGE> 21
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA.
The following financial statements and related notes and report appear
on the pages indicated in the Company's Annual Report to Shareholders for the
fiscal year ended August 31, 1999 and are incorporated herein by reference:
Page(s)in
Annual Report
Financial Statements and Related Report to Shareholders
- -----------------------------------------------------------------------
<TABLE>
<CAPTION>
<S> <C>
Consolidated Statements of Income for the
fiscal years ended August 31, 1999,
1998 and 1997 11
Consolidated Balance Sheets at August 31,
1999 and 1998 12
Consolidated Statements of Cash Flows
for the fiscal years ended August 31,
1999, 1998 and 1997 13
Consolidated Statements of Shareholders'
Equity for the fiscal years ended
August 31, 1999, 1998 and 1997 14
Notes to Consolidated Financial Statements 15-24
Report, dated October 15, 1999, of Ernst &
Young LLP 25
</TABLE>
The supplementary financial information required by this Item 8 appears
in Note 18 - Quarterly Financial Data (unaudited) of the Notes to Consolidated
Financial Statements contained in the Company's Annual Report to Shareholders
for the fiscal year ended August 31, 1999 and is also incorporated herein by
reference.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON
ACCOUNTING AND FINANCIAL DISCLOSURE.
There were no such events and therefore this Item 9 is not applicable.
PART III
ITEMS 10 THROUGH 13.
In accordance with the provisions of General Instruction G to Form
10-K, the information required by Item 10 (Directors and Executive Officers of
the Registrant), Item 11 (Executive Compensation), Item 12 (Security Ownership
of Certain Beneficial Owners and Management) and Item 13 (Certain Relationships
and Related Transactions) is not set forth herein (except for the information
concerning "Executive Officers of the Company" which appears at the end of Part
I of this annual report) because the Company has already filed its definitive
Proxy Statement for its Annual Meeting of Shareholders to be
-20-
<PAGE> 22
held on December 16, 1999, which includes such information, with the Commission.
Such information is incorporated herein by reference.
PART IV
Item 14. Exhibits, Financial Statement Schedules and Reports on Form 8-K.
The financial statements, financial statement schedule and exhibits
listed below are filed as part of this annual report:
(a)(1) Financial Statements:
The consolidated financial statements of the Company and its
subsidiaries, together with the report of Ernst & Young LLP, dated October 15,
1999, appearing on pages 11 through 25 of the Company's Annual Report to
Shareholders for the fiscal year ended August 31, 1999, are incorporated herein
by reference (see Item 8 above).
(a)(2) Financial Statement Schedules:
Page in this
Schedules Annual Report
--------- -------------
Schedule II - Valuation Account for the fiscal
years ended August 31, 1999,
1998 and 1997 S-1
The report of Ernst & Young LLP with respect to Schedule II is included
in the consent of Ernst & Young LLP filed with this annual report as Exhibit 23.
All other financial statement schedules are omitted either because they
are not applicable or are not material, or the information required therein is
contained in the consolidated financial statements or notes thereto set forth in
the Company's Annual Report to Shareholders for the fiscal year ended August 31,
1999.
(a)(3) Exhibits:
<TABLE>
<CAPTION>
Exhibit
No. Document
- ----------- -----------------------------------------------------------------------------
<S> <C>
3(i) Restated Articles of Incorporation, as amended by the Company's
shareholders of the Annual Meeting of Shareholders held on December 17, 1998,
and Statement
</TABLE>
-21-
<PAGE> 23
<TABLE>
<CAPTION>
Exhibit
No. Document
- ---------- -------------------------------------------------------------
<S> <C>
with Respect to Shares of Series A Junior Participating Preferred
Stock, filed as Exhibit 3(i) to the Company's quarterly report on
Form 10-Q for the fiscal quarter ended November 30, 1998 and
incorporated herein by reference.
3(ii) By-Laws, as amended and restated by the Company's Board of
Directors effective April 16, 1998, filed as Exhibit 3(ii) to
the Company's annual report on Form 10-K for the fiscal year
ended August 31, 1998 and incorporated herein by reference.
4 Loan Agreement, dated September 23, 1999, by and among the
Company, Mellon Bank, N.A., KeyBank National Association and
Mellon Bank, N.A., as Agent, with copies of the Notes executed
and delivered by the Company in connection with the Loan
Agreement attached, filed herewith.
4.1 Shareholder Rights Agreement, dated August 17, 1998, between the
Company and ChaseMellon Shareholder Services, L.L.C., as Rights
Agent, filed as Exhibit 4 to the Company's current report on Form
8-K filed on August 21, 1998 and incorporated herein by reference.
10.1 1989 Stock Incentive Plan, as amended by the Company's Board of
Directors and shareholders effective December 15, 1994, filed as
Exhibit 10.3 to the Company's annual report on Form 10-K for the
fiscal year ended August 31, 1995 and incorporated herein by
reference.*
10.2 1989 Stock Incentive Plan, as amended by the Company's Board of
Directors effective August 31, 1996, filed as Exhibit 10.4 to the
Company's annual report on Form 10-K for the fiscal year ended
August 31, 1996 and incorporated herein by reference.*
10.3 1997 Stock Incentive Plan, as adopted by the Company's Board of
Directors on October 17, 1997 and approved by the Company's
shareholders on December 18, 1997, filed as Exhibit 10.4 to the
Company's annual report on Form 10-K for the fiscal year ended
August 31, 1998 and incorporated herein by reference.*
10.4 Common Stock Purchase Plan for Salaried Employees, as amended
by the Company's Board of Directors on October 11, 1996, filed
as Exhibit 10.5 to the
-22-
</TABLE>
<PAGE> 24
<TABLE>
<CAPTION>
Exhibit
No. Document
- ----------- -------------------------------------------------------------
<S> <C>
Company's annual report on Form 10-K for the fiscal year ended
August 31, 1996 and incorporated herein by reference.*
10.5 Deferred Compensation Plan for Non-Employee Directors, as
adopted by the Company's Board of Directors on December 14,
1994, filed as Exhibit 10.6 to the Company's quarterly report
on Form 10-Q for the fiscal quarter ended February 28, 1995
and incorporated herein by reference.*
10.6 Retirement Policy and Plan for Non-Employee Directors, as
amended by the Company's Board of Directors on December 14,
1994, filed as Exhibit 10.7 to the Company's quarterly report
on Form 10-Q for the fiscal quarter ended February 28, 1995
and incorporated herein by reference.*
10.7 Written description of supplemental retirement benefit for Thomas P.
Woolaway, filed as Exhibit 10.7 to the Company's annual report on
Form 10-K for the fiscal year ended August 31, 1995 and incorporated
herein by reference.*
10.8 First Amendment to the Tuscarora Incorporated and Subsidiary Companies
Salaried Employees' Money Purchase Pension Plan, as adopted by the
Company's Board of Directors on October 11, 1996, providing for
additional employer contributions for certain of the Company's
executive officers, filed as Exhibit 10.9 to the Company's annual
report on Form 10-K for the fiscal year ended August 31, 1996 and
incorporated herein by reference.*
10.9 Tuscarora Incorporated Supplemental Executive Retirement Plan,
as adopted by the Company's Board of Directors on February 9,
1996, and related Consent of the Company's Compensation
Committee, dated October 11, 1996, designating certain of the
Company's executive officers as Plan participants, and form of
Participation Agreement, filed as Exhibit 10.10 to the
Company's annual report on Form 10-K for the fiscal year ended
August 31, 1996 and incorporated herein by reference.*
10.10 Indemnification and Insurance Agreement, dated December 15,
1994, between the Company and Robert W. Kampmeinert
(substantially identical agreements have
</TABLE>
-23-
<PAGE> 25
<TABLE>
<CAPTION>
Exhibit
No. Document
- ----------- ------------------------------------------------------------------
<S> <C>
been entered into with all the Company's present directors), filed
as Exhibit 10.11 to the Company's annual report on Form 10-K for the
fiscal year ended August 31, 1998 and incorporated herein by
reference.
13 Those portions of the Annual Report to Shareholders for the
fiscal year ended August 31, 1999 which are expressly incorporated
in this annual report by reference, filed herewith.
21 List of subsidiaries of the Company, filed herewith.
23 Consent of Ernst & Young LLP, filed herewith.
24 Powers of Attorney, filed herewith.
27 Financial Data Schedule for the fiscal year ended August 31, 1999,
filed herewith.
</TABLE>
- -----------------
* Management contract or compensatory plan, contract or arrangement
required to be filed by Item 601(b)(10)(iii) of Regulation S-K.
The Company agrees to furnish to the Commission upon request copies of all
instruments defining the rights of holders of long-term debt of the Company and
its subsidiaries which are not filed as a part of this annual report.
Copies of the exhibits filed as a part of this annual report are available
at a cost of $.20 per page to any shareholder upon written request to Brian C.
Mullins, Senior Vice President, Chief Financial Officer and Treasurer, Tuscarora
Incorporated, 800 Fifth Avenue, New Brighton, Pennsylvania 15066.
(b) Reports on Form 8-K:
No current reports on Form 8-K were filed during the fiscal quarter ended
August 31, 1999.
-24-
<PAGE> 26
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, the Company has duly caused this report to be
signed on its behalf by the undersigned, thereunto duly authorized.
Tuscarora Incorporated
By /s/ John P. O'Leary, Jr.
--------------------------
John P. O'Leary, Jr., President
and Chief Executive Officer
Date: November 24, 1999
Pursuant to the requirements of the Securities Exchange Act of
1934, this report has been signed below by the following persons on behalf of
the Company in the capacities indicated on November 24, 1999:
/s/ John P. O'Leary, Jr. /s/ Brian C. Mullins
- ------------------------ --------------------
John P. O'Leary, Jr. Brian C. Mullins
(Director and Chief (Principal Financial
Executive Officer) Officer and Principal
Accounting Officer)
Thomas S. Blair
David I. Cohen
Abe Farkas
Karen L. Farkas
Robert W. Kampmeinert
Jeffery L. Leininger
David C. O'Leary
Harold F. Reed, Jr. and
Thomas P. Woolaway,
Directors
By /s/ Brian C. Mullins
--------------------
Brian C. Mullins,
Attorney-in-Fact
-25-
<PAGE> 27
<TABLE>
<CAPTION>
TUSCARORA INCORPORATED
Schedule II - Valuation Account
Years Ended August 31, 1999, 1998 and 1997
Balance at Charged to Balance at
Beginning Costs and End
Description of Period Expenses Deductions(1) of Period
----------- ------------ ----------- -------------- -----------
<S> <C> <C> <C> <C>
Allowance for
doubtful accounts
Year Ended
August 31, 1999 $651,720 $145,319 $127,006 $670,033
Year Ended
August 31, 1998 $674,689 $311,711 $334,680 $651,720
Year Ended
August 31, 1997 $787,175 $586,582 $699,068 $674,689
</TABLE>
- -------------------
(1) Uncollected receivables written off, net of recoveries.
S-1
<PAGE> 28
TUSCARORA INCORPORATED
Form 10-K for Fiscal Year Ended August 31, 1999
Exhibit Index
-------------
The following exhibits are required to be filed with the annual report
on Form 10-K. Exhibits are incorporated herein by reference to other documents
pursuant to Rule 12b-23 under the Securities Exchange Act of 1934, as amended,
as indicated by the index. Exhibits not incorporated herein by reference follow
the index.
Exhibit
No. Document
- ------- -------------------------------------------------------------------
3(i) Restated Articles of Incorporation, as amended by the Company's
shareholders of the Annual Meeting of Shareholders held on December
17, 1998, and Statement with Respect to Shares of Series A Junior
Participating Preferred Stock, filed as Exhibit 3(i) to the
Company's quarterly report on Form 10-Q for the fiscal quarter ended
November 30, 1998 and incorporated herein by reference.
3(ii) By-Laws, as amended and restated by the Company's Board of Directors
effective April 16, 1998, filed as Exhibit 3(ii) to the Company's
annual report on Form 10-K for the fiscal year ended August 31, 1998
and incorporated herein by reference.
4 Loan Agreement, dated September 23, 1999, by and among the Company,
Mellon Bank, N.A., KeyBank National Association and Mellon Bank,
N.A., as Agent, with copies of the Notes executed and delivered by
the Company in connection with the Loan Agreement attached, filed
herewith.
4.1 Shareholder Rights Agreement, dated August 17, 1998, between the
Company and ChaseMellon Shareholder Services, L.L.C., as Rights
Agent, filed as Exhibit 4 to the Company's current report on Form
8-K filed on August 21, 1998 and incorporated herein by reference.
10.1 1989 Stock Incentive Plan, as amended by the Company's Board of
Directors and shareholders effective December 15, 1994, filed as
Exhibit 10.3 to the Company's annual report on Form 10-K for the
fiscal year ended August 31, 1995 and incorporated herein by
reference.*
<PAGE> 29
Exhibit
No. Document
- ------- -------------------------------------------------------------------
10.2 1989 Stock Incentive Plan, as amended by the Company's Board of
Directors effective August 31, 1996, filed as Exhibit 10.4 to the
Company's annual report on Form 10-K for the fiscal year ended
August 31, 1996 and incorporated herein by reference.*
10.3 1997 Stock Incentive Plan, as adopted by the Company's Board of
Directors on October 17, 1997 and approved by the Company's
shareholders on December 18, 1997, filed as Exhibit 10.4 to the
Company's annual report on Form 10-K for the fiscal year ended
August 31, 1998 and incorporated herein by reference.*
10.4 Common Stock Purchase Plan for Salaried Employees, as amended by the
Company's Board of Directors on October 11, 1996, filed as Exhibit
10.5 to the Company's annual report on Form 10-K for the fiscal year
ended August 31, 1996 and incorporated herein by reference.*
10.5 Deferred Compensation Plan for Non-Employee Directors, as adopted by
the Company's Board of Directors on December 14, 1994, filed as
Exhibit 10.6 to the Company's quarterly report on Form 10-Q for the
fiscal quarter ended February 28, 1995 and incorporated herein by
reference.*
10.6 Retirement Policy and Plan for Non-Employee Directors, as amended by
the Company's Board of Directors on December 14, 1994, filed as
Exhibit 10.7 to the Company's quarterly report on Form 10-Q for the
fiscal quarter ended February 28, 1995 and incorporated herein by
reference.*
10.7 Written description of supplemental retirement benefit for Thomas P.
Woolaway, filed as Exhibit 10.7 to the Company's annual report on
Form 10-K for the fiscal year ended August 31, 1995 and incorporated
herein by reference.*
10.8 First Amendment to the Tuscarora Incorporated and Subsidiary
Companies Salaried Employees' Money Purchase Pension Plan, as
adopted by the Company's Board of Directors on October 11, 1996,
providing for additional employer contributions for certain of the
Company's executive officers, filed as Exhibit 10.9 to the Company's
annual report on Form 10-K for the fiscal year ended August 31, 1996
and incorporated herein by reference.*
-2-
<PAGE> 30
Exhibit
No. Document
- ------- -------------------------------------------------------------------
10.9 Tuscarora Incorporated Supplemental Executive Retirement Plan, as
adopted by the Company's Board of Directors on February 9, 1996, and
related Consent of the Company's Compensation Committee, dated
October 11, 1996, designating certain of the Company's executive
officers as Plan participants, and form of Participation Agreement,
filed as Exhibit 10.10 to the Company's annual report on Form 10-K
for the fiscal year ended August 31, 1996 and incorporated herein by
reference.*
10.10 Indemnification and Insurance Agreement, dated December 15, 1994,
between the Company and Robert W. Kampmeinert (substantially
identical agreements have been entered into with all the Company's
present directors), filed as Exhibit 10.11 to the Company's annual
report on Form 10-K for the fiscal year ended August 31, 1998 and
incorporated herein by reference.
13 Those portions of the Annual Report to Shareholders for the fiscal
year ended August 31, 1999 which are expressly incorporated in this
annual report by reference, filed herewith.
21 List of subsidiaries of the Company, filed herewith.
23 Consent of Ernst & Young LLP, filed herewith.
24 Powers of Attorney, filed herewith.
27 Financial Data Schedule for the fiscal year ended August 31, 1999,
filed herewith.
- ------------------
* Management contract or compensatory plan, contract or arrangement
required to be filed by Item 601(b) (10) (iii) of Regulation S-K.
-3-
<PAGE> 1
Exhibit 4
LOAN AGREEMENT
Agreement, dated the 23rd day of September, 1999, by and among
Tuscarora Incorporated, a Pennsylvania corporation (the "Borrower"), and Mellon
Bank, N.A., a national banking association ("Mellon"), KeyBank National
Association, a national banking association ("Key") (Mellon and Key, together
with any other financial institution that becomes a party hereto from time to
time, are individually, a "Bank" and collectively, the "Banks"), and Mellon
Bank, N.A., as agent for the Banks (in such capacity, "Agent") ("Agreement").
W I T N E S S E T H:
WHEREAS, pursuant to the Loan Agreement, dated August 14,
1996, by and between the Borrower and Mellon, (the "Prior Loan Agreement"),
Mellon has, among other things, extended credit to the Borrower in the form of
(a) a revolving credit loan facility in an aggregate principal amount not to
exceed Forty Million and 00/100 Dollars ($40,000,000.00) and (b) a term loan in
an original principal amount of Thirty-Seven Million and 00/100 Dollars
($37,000,000.00); and
WHEREAS, the Borrower has requested that the Banks extend
credit to the Borrower pursuant to (i) a revolving credit facility in an
aggregate principal amount not to exceed Forty-Five Million and 00/100 Dollars
($45,000,000.00), the proceeds of which will be used to pay to Mellon amounts
due to it under the Prior Loan Agreement and for general corporate purposes,
working capital, capital expenditures and acquisitions and (ii) a term loan in
the original principal amount of Forty-Five Million and 00/100 Dollars
($45,000,000.00), the proceeds of which will be used to pay to Mellon amounts
due to it under the Prior Loan Agreement; and
WHEREAS, the Banks are willing to extend such credit to the
Borrower pursuant to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants contained in this Agreement, the receipt and sufficiency of
which are hereby acknowledged, and intending to be legally bound hereby, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.01 Certain Definitions. In addition to other words and terms
defined elsewhere in this Agreement, the following words and terms have the
following meanings, respectively, unless the context otherwise clearly requires:
"Acquisition" shall mean any transaction or series of related
transactions for the purpose of or resulting, directly or indirectly, in (a) the
acquisition of all or substantially all of the assets of any Person, or any
business or division of any Person, (b) the acquisition of in excess of fifty
percent (50%) of the capital stock (or other equity interest) of any Person, or
(c) the acquisition of another Person (other than a Subsidiary) by a merger or
consolidation or any other combination with such Person.
<PAGE> 2
"Advantage" shall mean any payment (whether made voluntarily
or involuntarily by offset of any deposit or otherwise) received by any Bank in
respect of this Agreement or any other Loan Document, if such payment results in
such Bank having less than its Pro Rata Share of Indebtedness to the Banks
pursuant to this Agreement than was the case immediately before such payment.
"Affiliate" shall mean, with respect to any Loan Party hereto,
any Person which directly or indirectly controls, is controlled by or is under
common control with such party. The term "control" shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of a Person, whether through the ownership of voting
securities, by contract or otherwise.
"Agent" shall mean Mellon in its capacity as agent for the
Banks under the Loan Documents and any successor appointed pursuant to the
provisions of this Agreement.
"Agreement" shall mean this Loan Agreement as amended,
modified or supplemented from time to time.
"Authorized Representative" shall mean each Person designated
from time to time, as appropriate, in writing by the Borrower to the Agent for
the purposes of giving notices of borrowing, conversion or continuation of
Loans, which designation shall continue in force and effect until terminated in
writing by the Borrower to the Agent.
"Banks" shall mean, collectively, Mellon and Key and their
respective successors and assigns.
"Base Rate" shall mean, for each day, the greater of (i) the
Prime Rate or (ii) the Federal Funds Rate plus one half of one percent (0.50%)
on such day.
"Base Rate Loan" shall mean any Loan that bears interest with
reference to the Base Rate.
"Borrower" shall mean Tuscarora Incorporated, a Pennsylvania
corporation, with its chief executive office at 800 Fifth Avenue, New Brighton,
Pennsylvania 15066.
"Business Day" shall mean a day of the year on which banks are
not required or authorized to close in Pittsburgh, Pennsylvania and, if the
applicable Business Day relates to any Libor Rate Loan, a day on which dealings
are carried on in the London interbank eurodollar market.
"Capital Expenditure" shall mean any expenditure made or
liability incurred which, in accordance with GAAP, is treated as a capital
expenditure and not as an expense item for the year in which it was made or
incurred, as the case may be.
"Capital Lease" shall mean any amount payable with respect to
any lease of any tangible or intangible property (whether real, personal or
mixed), however denoted, which is required by GAAP to be reflected as a
liability on the balance sheet of the lessee.
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"Capitalized Lease Obligation" shall mean, with respect to
each Capital Lease, the amount of the liability reflecting the aggregate
discounted amount of future payments under such Capital Lease calculated in
accordance with GAAP and statement of financial accounting standards No. 13 (as
supplemented and modified from time to time) and any corresponding future
interpretations by the Financial Accounting Standards Board or any successor
thereto.
"Cash Flow" shall mean, for the period of determination, (i)
Net Income, (ii) plus depreciation, depletion and amortization, (iii) minus Six
Million Dollars ($6,000,000.00), (iv) minus Distributions, in each case
determined and Consolidated for the Borrower and its Subsidiaries in accordance
with GAAP.
"Change of Control" shall mean (i) any Person or group within
the meaning of Rule 13d-5 under the Securities Exchange Act of 1934, as amended,
as in effect on the date of this Agreement, has become the owner of, directly or
indirectly, beneficially or of record, shares representing more than 35% of the
aggregate ordinary voting power represented by the issued and outstanding
capital stock of the Borrower; or (ii) the Continuing Directors have ceased to
occupy a majority of the seats (excluding vacant seats) on the Board of
Directors of the Borrower.
"Closing" shall mean the closing of the transactions provided
for in this Agreement on the Closing Date.
"Closing Date" shall mean September 23, 1999 or such other
date upon which the parties may agree.
"Code" shall mean the Internal Revenue Code of 1986 as amended
along with the rules, regulations, decisions and other official interpretations
in connection therewith.
"Commitment" shall mean, with respect to each Bank, the amount
set forth on Schedule 1 attached hereto and made a part hereof as the amount of
each Bank's commitment to make Revolving Credit Loans (including the
participation in the issuance of Letters of Credit) and the Term Loan to the
Borrower, as such amount may be reduced from time to time pursuant to Section
2.19 or modified from time to time pursuant to Section 8.17(A). Schedule 1 shall
be amended from time to time to reflect any reduction pursuant to Section 2.19,
modifications pursuant to Section 8.17(A) and any other changes to the
Commitment of the Banks.
"Commitment Percentage" shall mean, with respect to each Bank,
the percentage set forth on Schedule 1 attached hereto and made a part hereof as
such Bank's percentage of the aggregate Commitments of all of the Banks, as such
percentage may be changed from time to time in accordance with the terms and
conditions of this Agreement. Schedule 1 shall be amended from time to time to
reflect any changes to the Commitment Percentages.
"Consolidated" shall mean the resulted consolidation of the
financial statements of the Borrower and each of its Subsidiaries in accordance
with GAAP, including principles of consolidation consistent with those applied
in preparation of the Consolidated financial statements referred to in Section
3.07 herein.
"Continuing Directors" shall mean, collectively, (i) all
members of the Board of Directors of the Borrower as of the date of this
Agreement ("Current Directors") and (ii) all
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<PAGE> 4
members of the Board of Directors of the Borrower who assume office after the
date of this Agreement and whose election and nomination for election by the
Borrower's shareholders was approved by a majority vote of the Current Directors
or their successors so approved, directly or indirectly.
"Distributions" shall mean, for the period of determination,
(a) all distributions of cash, securities or other property (other than capital
stock) on or in respect of any shares of any class of capital stock of the
Borrower; and (b) all purchases, redemptions or other acquisitions by Borrower
of any shares of any class of capital stock of the Borrower other than in
connection with the exercise of stock options granted by the Borrower.
"Eligible Assignee" shall mean any commercial bank or non-bank
financial institution organized under the United States of America or any state
thereof including, without limitation, any insurance company, savings bank, or
savings and loan association, having total assets in excess of One Billion and
00/100 Dollars ($1,000,000,000.00).
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as in effect as of the date of this Agreement and as amended from time
to time in the future.
"ERISA Affiliate" shall mean a Person which is under common
control with Borrower within the meaning of Section 414(b) of the Code
including, but not limited to, a Subsidiary of the Borrower.
"Event of Default" means any of the Events of Default
described in Section 7.01 of this Agreement.
"Excess Amount" shall mean as set forth in Section 2.01(d)
hereof.
"Expiry Date" shall mean, with respect to the Revolving Credit
Loans and the Swing Line Loans, the Revolving Credit Expiry Date and, with
respect to the Term Loan, the Term Loan Expiry Date.
"Facility Fee" shall mean as set forth in Section 2.07(A)(ii)
hereof.
"Federal Funds Rate" shall mean, for any day, the rate per
annum (rounded upward to the next higher whole multiple of 1/100% if such rate
is not such a multiple) equal to the weighted average of the rates on overnight
federal funds transactions arranged by federal funds brokers on such day (or if
there is no trading in such funds on such day on the previous trading day) as
such rate is computed and announced on the next Business Day following such
trading day by the Federal Reserve Bank of New York (or any successor) in
substantially the same manner as such Federal Reserve Bank computes and
announces the weighted average it refers to as the "federal funds effective
rate" as of the date of this Agreement; provided, however, if such Federal
Reserve Bank (or its successor) does not announce such rate for any day, the
Federal Funds Rate for such day shall be the Federal Funds Rate for the last day
on which such rate was announced.
"Fiscal Quarter(s)" shall mean the period(s) of September 1
through November 30, December 1 through February 28 or 29, March 1 through May
31, and June 1 through August 31 of each calendar year.
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"Funded Debt" shall mean, as of the date of determination, (i)
all Indebtedness which would as of such date be classified in whole or in part
as a long-term liability in accordance with GAAP (including the current portion
thereof), all Indebtedness having a final maturity more than one (1) year from
the date of creation of such Indebtedness and all Indebtedness, regardless of
its term, which is renewable or extendable (pursuant to the terms thereof or
otherwise) to a date more than one year from the date of the creation of such
Indebtedness, and (ii) all Indebtedness which would as of such date be
classified in whole or in part as a current liability in accordance with GAAP,
in each case determined and Consolidated for the Borrower and its Subsidiaries
in accordance with GAAP.
"Funding Breakage Date" shall mean as set forth in Section
2.15(c) hereof.
"Funding Breakage Indemnity" shall mean as set forth in
Section 2.15(c) hereof.
"GAAP" means generally accepted accounting principles (as such
principles may change from time to time) which shall include the official
interpretations thereof by the Financial Accounting Standards Board applied on a
consistent basis (except for changes in application in which the Borrower's
independent certified public accountants concur).
"Guarantor" or "Guarantors" shall mean, singularly or
collectively as the context may require, TII, TIC and any other Person that
executes and delivers a Guaranty to the Agent for the ratable benefit of the
Banks on or after the date hereof.
"Guaranty" or "Guaranties" shall mean, singularly or
collectively as the context may require, the TII Guaranty, the TIC Guaranty and
any other Guaranty and Suretyship Agreement executed and delivered to the Agent
for the ratable benefit of the Banks on or after the date hereof substantially
in the form of Exhibit F attached hereto and made a part hereof.
"Incentive Pricing Effective Date" shall mean that as set
forth in Section 2.04(b) hereof.
"Indebtedness" shall mean (i) all obligations for borrowed
money, direct or indirect, incurred, assumed or guaranteed (including, without
limitation, all notes payable and drafts accepted representing extensions of
credit, all obligations evidenced by bonds, debentures, notes or similar
instruments, all obligations on which interest charges are customarily paid, all
obligations under conditional sale or other title retention agreements, all
obligations for the deferred purchase price of capital assets and all
obligations issued or assumed as full or partial payment for property whether or
not any such notes, drafts or obligations are obligations for borrowed money),
(ii) all obligations secured by any Lien existing on property owned or acquired
subject thereto, whether or not the obligations secured thereby shall have been
assumed, (iii) all reimbursement obligations (contingent or otherwise), (iv)
Indebtedness represented by obligations under a Capital Lease and the amount of
such Indebtedness shall be the Capitalized Lease Obligations with respect to
such Capital Lease, (v) all obligations (contingent or otherwise) under any
letter of credit, banker's acceptance, or interest rate protection agreement,
(vi) all obligations to advance funds to, or to purchase assets, property or
services from, any other Person in order to maintain the financial condition of
such Person and (vii) any other transaction (including forward sale or purchase
agreements) having the commercial effect
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<PAGE> 6
of a borrowing of money entered into by the Borrower to finance its operations
or capital requirements.
"Indemnities" shall mean as set forth in Section 8.18 hereof.
"Indemnifying Liabilities" shall mean as set forth in Section
8.18 hereof.
"Interest Coverage Ratio" shall mean, for the period of
determination, the ratio of Operating Earnings to Interest Expense.
"Interest Expense" shall mean, for the period of
determination, all interest accruing during such period on Indebtedness,
including without limitation, all interest required under GAAP to be capitalized
during such period, in each case determined and Consolidated for the Borrower
and its Subsidiaries in accordance with GAAP.
"Interest Period" shall mean, with respect to any Libor Rate
Loan, the period commencing on the date such Loan is made, continued or
converted and ending on the last day of such period as selected by the Borrower
pursuant to the provisions below and, thereafter, each subsequent period
commencing on the last day of the immediately preceding Interest Period and
ending on the last day of such period as selected by the Borrower pursuant to
the provisions below. The duration of each Interest Period for any Libor Rate
Loan shall be for the number of days, months or years selected by Borrower upon
notice, in accordance with Sections 2.01(c) provided that:
(i) Interest Periods for any Libor Rate Loans shall
be one (1), two (2), three (3) or six (6) months or such other period as may be
agreed upon by the Borrower and Banks.
(ii) Borrower shall select Interest Periods for Libor
Rate Loans in order to insure that Borrower shall be able to make scheduled
payments of principal under the Notes without incurring liability under Section
2.15(c) hereof; provided, however, that in the event the Borrower is required to
prepay any Libor Rate Loan in order to make a scheduled payment of principal
under the Notes, the Borrower shall indemnify each Bank as provided in Section
2.15(c) hereof;
(iii) whenever the last day of any Interest Period
for a Libor Rate Loan would otherwise occur on a day other than a Business Day,
the last day of such Interest Period shall occur on the next succeeding Business
Day, provided that if such extension of time would cause the last day of such
Interest Period to occur in the next following calendar month, the last day of
such Interest Period shall occur on the next preceding Business Day;
(iv) if the Borrower fails to select the duration of
any Interest Period in requesting the Agent to make, continue or convert any
Libor Rate Loan, the duration of such Interest Period shall be one (1) month;
and
(v) the last day of any Interest Period for a Libor
Rate Loan shall not occur after the Expiry Date of the facility under which such
Loan is made.
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"Key" shall mean KeyBank National Association, a national
banking association with its main office located at 127 Public Square,
Cleveland, Ohio 44114-1306.
"Key Revolving Credit Note" means the Revolving Credit Note,
dated the date of this Agreement, made by the Borrower to Key, as amended,
modified or supplemented from time to time, together with all extensions,
renewals, refinancings or refundings in whole or in part.
"Key Term Note" means the Term Note, dated the date of this
Agreement, made by the Borrower to Key, as amended, modified or supplemented
from time to time, together with all extensions, renewals, refinancings or
refundings in whole or in part.
"Law" shall mean any law (including common law), constitution,
statute, treaty, regulation, rule, ordinance, order, injunction, writ, decree or
award of any Official Body.
"Letter(s) of Credit" shall mean the letters of credit issued
in accordance with Section 2.08 hereof.
"Letter of Credit Face Amount" shall mean, for each Letter of
Credit, the face amount of such Letter of Credit.
"Letter of Credit Commission" shall mean as set forth in
Section 2.09 hereof.
"Letter of Credit Undrawn Availability" at any time means the
maximum amount available to be drawn at such time under all then outstanding
Letters of Credit including any amounts drawn thereunder and not reimbursed,
regardless of the existence or satisfaction of any conditions or limitations on
drawing.
"Leverage Ratio" shall mean, as of the date of determination,
the ratio of Funded Debt to Cash Flow for the preceding twelve (12) month
period.
"Libor Rate" shall mean, for any Interest Period for any Libor
Rate Loan, a fixed rate per annum (rounded upwards to the next higher whole
multiple of 1/100% if such rate is not such a multiple) equal at all times
during such Interest Period to the quotient of (a) the rate determined in good
faith by the Agent in accordance with its usual procedures (such determination
to be conclusive absent manifest error) to be the average of the rates per annum
(rounded upwards to the next higher whole multiple of 1/100% if such rate is not
such a multiple) at which deposits in immediately available United States
Dollars are offered at 11:00 a.m. (London, England Time) (or as soon thereafter
as is reasonably practicable) by prime banks in the London interbank eurodollar
market two (2) Business Days prior to the first day of such Interest Period in
an amount and maturity equal to the amount and maturity of such Libor Rate Loan,
divided by (b) a number equal to 1.00 minus the aggregate (without duplication)
of the rates (expressed as a decimal fraction) of the Libor Reserve
Requirements.
"Libor Rate Loan" shall mean any Loan that bears interest with
reference to the Libor Rate.
"Libor Reserve Requirements" shall mean, for any day of any
Interest Period for a Libor Rate Loan, the percentage (rounded upward to the
next higher whole multiple of 1/100% if
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<PAGE> 8
such rate is not such a multiple) as determined in good faith by the Agent in
accordance with its usual procedures (which determination shall be conclusive
absent manifest error) as representing the maximum reserves (whether basic,
supplemental, marginal, emergency or otherwise) prescribed by the Board of
Governors of the Federal Reserve System (or any successor) with respect to
liabilities or assets consisting of or including "Eurocurrency Liabilities" (as
defined in Regulation D of the Board of Governors of the Federal Reserve System)
in an amount and for a maturity equal to such Libor Rate Loan and such Interest
Period. The Libor Rate shall be adjusted automatically as of the effective date
of each change in the Libor Reserve Requirement.
"Lien" shall mean any mortgage, deed of trust, pledge, lien,
security interest, charge or other encumbrance or security arrangement of any
nature including, but not limited to, any conditional sale or title retention
arrangement, and any assignment, deposit arrangement or lease intended as, or
having the effect of, security.
"Loan" or "Loans" shall mean the Revolving Credit Loans, the
Term Loan (whether made as or converted to Libor Rate Loans or Base Rate Loans),
the Swing Line Loans and any other credit to the Borrower extended by the Banks
in accordance with Article II hereof as evidenced by the Notes, as the case may
be.
"Loan Document" or "Loan Documents" mean, singularly or
collectively as the context may require, this Agreement, the Notes, all
documentation executed and delivered in connection with the issuance of each
Letter of Credit, the Guaranties and any and all other documents, instruments,
certificates and agreements executed and delivered in connection with this
Agreement, as any of them may be amended, modified, extended or supplemented
from time to time.
"Loan Party" or "Loan Parties" shall mean the Borrower, any
Guarantor and any other Person (other than Agent or any Bank) which is or
becomes a party to any Loan Document.
"Majority Banks" shall mean both Mellon and Key during the
period in which they are the only Banks and, thereafter, the Banks whose
Commitment Percentages aggregate sixty-eight percent (68%) of the Total
Commitment Amount or, if there is any borrowing hereunder, the holders of at
least sixty-eight percent (68%) of the amount outstanding under the Notes.
"Material Adverse Change" shall mean a material adverse change
in (i) the business, operations, condition (financial or otherwise) or prospects
of the Loan Parties and their Subsidiaries taken as a whole, (ii) the ability of
any Loan Party to perform any of its payment of other obligations under this
Agreement or any of the other Loan Documents to which it is a party or (iii) the
legality, validity or enforceability of the obligations of any Loan Party under
this Agreement or any of the other Loan Documents.
"Material Adverse Effect" shall mean a material adverse effect
on (i) the business, operations, condition (financial or otherwise) or prospects
of the Loan Parties and their Subsidiaries taken as a whole, (ii) the ability of
any Loan Party to perform any of its payment of other obligations under this
Agreement or any of the other Loan Documents to which it is a party or (iii) the
legality, validity or enforceability of the obligations of any Loan Party under
this Agreement or any of the other Loan Documents.
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"Measurement Quarter" shall mean as set forth in Section
2.04(b) hereof.
"Mellon" shall mean Mellon Bank, N.A., a national banking
association with its main office located at Two Mellon Bank Center, Pittsburgh,
Pennsylvania 15259.
"Mellon Revolving Credit Note" means the Revolving Credit
Note, dated the date of this Agreement, made by the Borrower to Mellon, as
amended, modified or supplemented from time to time, together with all
extensions, renewals, refinancings or refundings in whole or in part.
"Mellon Term Note" means the Term Note, dated the date of this
Agreement, made by the Borrower to Mellon, as amended, modified or supplemented
from time to time, together with all extensions, renewals, refinancings or
refundings in whole or in part.
"Net Income" means, for the period of determination, net
income (after taxes), excluding, however, extraordinary gains, in each case
determined and Consolidated for the Borrower and its Subsidiaries in accordance
with GAAP.
"Notes" shall collectively mean the Revolving Credit Note, the
Term Note, the Swing Line Note and any other note of the Borrower executed and
delivered pursuant to this Agreement, together with all extensions, renewals,
refinancings or refundings in whole or in part.
"Office", when used in connection with (i) Mellon shall mean
its designated office located at Two Mellon Bank Center, Pittsburgh,
Pennsylvania 15259 or such other office of Mellon as Mellon may designate in
writing from time to time, or (ii) Key shall mean its designated office located
at 127 Public Square, Cleveland, Ohio 44114-1306 or such other office of Key as
Key may designate in writing from time to time.
"Official Body" 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.
"Operating Earnings" shall mean, for the period of
determination, Net Income, plus Interest Expense plus all income taxes included
in Net Income.
"Operating Lease" shall mean any lease other than a Capital
Lease.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Title IV of ERISA.
"Person" shall mean an individual, corporation, partnership,
joint venture, trust, or unincorporated organization or government or agency or
political subdivision thereof.
"Plan" means any deferred compensation program, including both
single and multi-employer plans, subject to Title IV of ERISA and established
and maintained for employees of the Loan Parties or any of their Subsidiaries or
any ERISA Affiliate.
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"Potential Default" shall mean any event or condition which
with notice, passage of time or determination by the Agent or the Majority
Banks, or any combination of the foregoing, would constitute an Event of
Default.
"Prime Rate" shall mean that rate of interest per annum
announced by the Agent from time to time as its Prime Rate which may not
represent the lowest rate charged by the Agent to other borrowers at any time or
from time to time.
"Prior Loan Agreement" shall have the meaning assigned to such
term in the preamble hereof.
"Pro Rata Share" shall mean, with respect to each Bank, its
Commitment Percentage.
"Prohibited Transaction" shall mean any transaction which is
prohibited under Section 4975 of the Code or Section 406 of ERISA and not exempt
under Section 4975 of the Code or Section 408 of ERISA.
"Refunded Swing Line Loans" shall mean as set forth in Section
2.03(d) hereof.
"Reportable Event" shall mean any of the events set forth in
Section 4043(b) of ERISA or the regulations thereunder, except any such event as
to which the provision for thirty (30) days notice to the PBGC is waived under
applicable regulations.
"Reporting Quarter" shall mean as set forth in Section 2.04(b)
hereof.
"Revolving Credit Commitment" shall mean, with respect to each
Bank, the amount set forth on Schedule 1 attached hereto and made a part hereof
as the amount of such Bank's commitment to make Revolving Credit Loans (subject
to the terms and conditions of this Agreement).
"Revolving Credit Expiry Date" shall mean September 1, 2004,
or such earlier date on which the Revolving Credit Facility Commitment shall
have been terminated pursuant to this Agreement.
"Revolving Credit Facility Commitment" shall mean as set forth
in Section 2.01(a) hereof.
"Revolving Credit Loans" shall mean as set forth in Section
2.01(a) hereof.
"Revolving Credit Notes" means, collectively, the Mellon
Revolving Credit Note and the Key Revolving Credit Note.
"Standby Letters of Credit" shall mean Letters of Credit
issued by the Agent and/or the Banks pursuant to this Agreement, the drawing
under which does not require the delivery of bills of lading, airway bills or
other similar types of documents of title, or which are customarily referred to
as "standby letters of credit."
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"Subsidiary" of a Loan Party at any time means (i) any
corporation more than fifty percent (50%) of whose stock of any class or classes
having by the terms thereof ordinary voting power to elect a majority of the
directors of such corporation is owned (directly or indirectly) by such Loan
Party and/or one or more Subsidiaries of a Loan Party and (ii) any partnership,
association, joint venture or other entity in which a Loan Party and/or one or
more Subsidiaries of such Loan Party has more than a fifty percent (50%) equity
interest.
"Swing Line Lender" shall mean Mellon in its capacity as Swing
Line Lender, or any Person serving as a successor Swing Line Lender hereunder.
"Swing Line Loan Commitment" shall mean as set forth in
Section 2.03(a) hereof.
"Swing Line Loans" shall mean the Loans made by the Swing Line
Lender to the Borrower pursuant to Section 2.03 hereof, which bear interest at
the Swing Line Rate.
"Swing Line Note" means the Swing Line Note, dated the date of
this Agreement, made by the Borrower to the Swing Line Lender, as amended,
modified or supplemented from time to time, together with all extensions,
renewals, refinancings or refundings in whole or in part.
"Swing Line Rate" means the rate that the Swing Line Lender
establishes from time to time for borrowings under its automatic borrowing
service.
"Tangible Net Worth" means, as of the date of determination,
net worth less all intangible assets, in each case determined and Consolidated
for the Borrower and its Subsidiaries in accordance with GAAP.
"Termination Event" shall mean (i) a Reportable Event, (ii)
the termination of a single employer Plan or the treatment of a single employer
Plan amendment as the termination of such Plan under Section 4041 of ERISA, or
the filing of a notice of intent to terminate a single employer Plan, or (iii)
the institution of proceedings to terminate a single employer Plan by the PBGC
under Section 4042 of ERISA, or (iv) the appointment of a trustee to administer
any single employer Plan.
"Term Loan" shall mean as set forth in Section 2.02(a) hereof.
"Term Loan Commitment" shall mean, with respect to each Bank,
the amount set forth on Schedule I attached hereto and made a part hereof as the
amount of such Bank's commitment to make Term Loans.
"Term Loan Expiry Date" shall mean September 1, 2004.
"Term Notes" means, collectively, the Mellon Term Note and the
Key Term Note.
"TIC" shall mean Tuscarora Investment Corporation, a Delaware
corporation.
"TIC Guaranty" shall mean the Guaranty and Suretyship
Agreement, dated of even date herewith, executed and delivered by TIC to the
Agent for the ratable benefit of the Banks, as amended, modified or supplemented
from time to time.
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"Tier I" shall mean that the Borrower's Leverage Ratio is less
than 2.50 to 1.00.
"Tier II" shall mean that the Borrower's Leverage Ratio is
greater than or equal to 2.50 to 1.00, but less than 4.00 to 1.00.
"Tier III" shall mean that the Borrower's Leverage Ratio is
greater than or equal to 4.00 to 1.00.
"TII" shall mean TUSCARORA INTERNATIONAL, INC., a Delaware
corporation.
"TII Guaranty" shall mean the Guaranty and Suretyship
Agreement, dated of even date herewith, executed and delivered by TII to the
Agent for the ratable benefit of the Banks, as amended, modified or supplemented
from time to time.
"Total Commitment Amount" shall mean the obligation hereunder
of the Banks to make Loans and issue Letters of Credit up to the maximum
aggregate principal amount of Ninety Million and 00/100 Dollars ($90,000,000.00)
(subject to the terms and conditions of this Agreement).
"Treasury Rate" as of any Funding Breakage Date shall mean the
rate per annum determined by the Agent in accordance with its usual procedures
(which determination shall be conclusive absent manifest error) to be the
semiannual equivalent yield to maturity (expressed as a semiannual equivalent
and decimal and, in the case of United States Treasury bills, converted to a
bond equivalent yield) for United States Treasury securities maturing on the
last day of the corresponding Interest Period and trading in the secondary
market in reasonable volume (or if no such securities mature on such date, the
ate determined by standard securities interpolation methods as applied to the
series of securities maturing as close as possible to, but earlier than, such
date, and the series of such securities maturing as close as possible to, but
later than, such date).
"Voluntary Termination Date" shall mean as set forth in
Section 2.19 hereof.
"Year 2000 Problem" shall mean any significant risk that
computer hardware, software or equipment used in the business or operations of
the any Loan Party may be unable to recognize and perform properly
date-sensitive functions involving certain dates prior to and after December 31,
1999.
1.02 Construction and Interpretation.
(a) [Reserved]
(b) Construction. Unless the context of this Agreement
otherwise clearly requires, references to the plural include the singular, the
singular the plural, the part the whole and "or" has the inclusive meaning
represented by the phrase "and/or". References in this Agreement to "judgments"
of Agent and Banks include good faith estimates by Agent and Banks (in the case
of quantitative judgments) and good faith beliefs by Agent and Banks (in the
case of qualitative judgments). The definition of any document or instrument
includes all schedules, attachments, and exhibits thereto and all renewals,
extensions, supplements, restatements and
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amendments thereof. "Hereunder", "herein", "hereto", "hereof", "this Agreement"
and words of similar import refer to this entire document, "including" is used
by way of illustration and not by way of limitation, unless the context clearly
indicates to the contrary; and any action required to be taken by the Borrower
or any Loan Party is to be taken promptly, unless the context clearly indicates
to the contrary.
(c) Accounting Terms. Any accounting term not specifically
defined in Section 1.01 hereof shall have the meaning ascribed thereto by GAAP.
ARTICLE II
THE CREDIT FACILITIES
2.01 Revolving Credit Facility Commitment.
(a) Revolving Credit Loans. Subject to the terms and
conditions and relying upon the representations and warranties set forth in this
Agreement and the other Loan Documents, the Banks severally (but not jointly)
agree to make, continue or convert loans (the "Revolving Credit Loans") to the
Borrower at any time or from time to time on or after the Closing Date and to
and including the Business Day immediately preceding the Revolving Credit Expiry
Date, in an aggregate principal amount (including the aggregate principal amount
of all Swing Line Loans outstanding and the Letter of Credit Undrawn
Availability) not exceeding at any one time outstanding Forty Five Million and
00/100 Dollars ($45,000,000.00) (the "Revolving Credit Facility Commitment");
provided, however, that each Bank shall not be required to make Revolving Credit
Loans (and participate in the issuance of Letters of Credit) in an aggregate
principal amount outstanding at any one time exceeding such Bank's Commitment
Percentage. The Revolving Credit Loans shall be made pro rata in accordance with
each Banks' Commitment Percentage. Within the limits of time and amount set
forth in this Section 2.01, and subject to the provisions of this Agreement
including, without limitation, the Banks' right to demand repayment of the
Revolving Credit Loans upon the occurrence of an Event of Default, Borrower may
borrow, repay and reborrow under this Section 2.01; provided, however, that if
Borrower prepays any Libor Rate Loan on any day other than the last day of the
applicable Interest Period for such Libor Rate Loan, then Borrower shall comply
with the terms and conditions of Section 2.15(c) with respect to such
prepayment.
(b) Revolving Credit Note. The obligation of Borrower to repay
the unpaid principal amount of the Revolving Credit Loans made to Borrower by
each Bank and to pay interest on the unpaid principal amount thereof will be
evidenced by the Revolving Credit Note of Borrower dated the Closing Date, in
substantially the form attached as Exhibits "A-1" and "A-2" to this Agreement
with the blanks appropriately filled. The Mellon Revolving Credit Note shall be
payable to the order of Mellon in a principal amount equal to Mellon's Revolving
Credit Commitment with respect to the Revolving Credit Loans. The Key Revolving
Credit Note shall be payable to the order of Key in a principal amount equal to
Key's Revolving Credit Commitment with respect to the Revolving Credit Loans.
The executed Revolving Credit Notes will be delivered by Borrower to the Banks
on the Closing Date.
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(c) Making, Continuing or Converting of Revolving Credit
Loans. Subject to the terms and conditions set forth in this Agreement and the
other Loan Documents, and provided that the Borrower has satisfied all
applicable conditions specified in Article IV hereof, the Banks shall make
Revolving Credit Loans to the Borrower which, as selected by the Borrower
pursuant to this Section 2.01(c), shall be Base Rate Loans or Libor Rate Loans.
(i) Each Revolving Credit Loan that is made as,
continued as or converted (from a Base Rate Loan) into a Libor Rate Loan shall
be made, continued or converted on such Business Day, in such amount (greater
than or equal to One Million Dollars ($1,000,000) provided, however, that any
amount in excess of One Million Dollars ($1,000,000) may only be in increments
of One Hundred Thousand Dollars ($100,000)), and with such an Interest Period as
Borrower shall request by written notice from an Authorized Representative
received by the Agent no later than 10:00 a.m. (Pittsburgh, Pennsylvania time)
on the third (3rd) Business Day prior to the date of disbursement of,
continuation of or conversion into the requested Libor Rate Loan. Subject to the
terms and conditions of this Agreement, on each borrowing date, the Agent shall
make the proceeds of the Libor Rate Loan available to Borrower at the Agent's
Office in immediately available funds, no later than 2:00 p.m. (Pittsburgh,
Pennsylvania time). In addition, in the event that Borrower desires to continue
a Libor Rate Loan for an additional Interest Period, Borrower shall provide
Agent with written notice thereof from an Authorized Representative on the third
(3rd) Business Day prior to the expiration of the applicable Interest Period. In
the event that Borrower fails to provide the Agent with the required written
notice on the third (3rd) Business Day prior to the expiration of the applicable
Interest Period for a Libor Rate Loan, Borrower shall be deemed to have given
written notice that such Loan shall be converted to a Base Rate Loan on the last
day of the applicable Interest Period. Each written notice of any Libor Rate
Loan shall be irrevocable and binding on Borrower and Borrower shall indemnify
the Banks against any loss or expense incurred by the Banks as a result of any
failure by Borrower to consummate such transaction calculated as set forth in
Section 2.15(c) hereof.
(ii) Each Revolving Credit Loan that is made as or
converted (from a Libor Rate Loan) into a Base Rate Loan shall be made or
converted on such Business Day and in such amount (greater than or equal to One
Million Dollars ($1,000,000), provided, however, that any amount in excess of
One Million Dollars ($1,000,000) may only be in increments of One Hundred
Thousand Dollars ($100,000)), as Borrower shall request by written notice from
an Authorized Representative received by the Agent no later than 10:00 a.m.
(Pittsburgh, Pennsylvania time) on the date of requested disbursement of or
conversion into the requested Base Rate Loan. Subject to the terms and
conditions of this Agreement, on each borrowing date, the Agent shall make the
proceeds of the Base Rate Loan available to Borrower at the Agent's Office in
immediately available funds not later than 2:00 p.m. (Pittsburgh, Pennsylvania
time). Unless the Borrower shall provide the Agent with the required written
notice to convert a Base Rate Loan into a Libor Rate Loan on the third (3rd)
Business Day prior to the requested date of conversion, such Base Rate Loan
shall automatically continue as a Base Rate Loan. Each written notice of any
Base Rate Loan shall be irrevocable and binding on Borrower and Borrower shall
indemnify the Banks against any loss or expense incurred by the Banks as a
result of any failure by Borrower to consummate such transaction calculated as
set forth in Section 2.15(c) hereof.
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<PAGE> 15
(iii) Each Bank does hereby authorize the Agent to
make all Loans, subject to the terms and conditions of this Agreement, that are
requested by the Borrower on the proposed borrowing date. Upon receipt of a
request to make, continue or convert a Revolving Credit Loan hereunder, the
Agent shall promptly advise each of the Banks of the proposed date of
disbursement, continuation or conversion, the amount and type of each such
Revolving Credit Loan, the applicable Interest Period and the Bank's Commitment
amount thereof. Each Bank shall remit its Commitment Percentage of the principal
amount of each Revolving Credit Loan to the Agent at the Office of the Agent in
immediately available funds no later than 12:00 noon (Pittsburgh, Pennsylvania
time) on the applicable borrowing date. If the amount of such Bank's Commitment
Percentage is not made available to the Agent by such Bank on the applicable
borrowing date, the Agent shall not be required to fund such Bank's Commitment
Percentage of the Revolving Credit Loans on the applicable borrowing date;
provided, however, the Agent may elect in its sole discretion to fund such
Bank's Commitment Percentage on the applicable borrowing date, and such Bank
shall be subject to the repayment obligations set forth below.
(iv) The Agent may assume that each Bank has made or
will make the proceeds of a Loan available to the Agent unless the Agent shall
have been notified by such Bank on or before the later of (a) the close of
business on the Business Day preceding the applicable borrowing date with
respect to the Loan or (b) two (2) hours before the time on which the Agent
actually funds the proceeds of such Loan to the Borrower (whether using its own
funds pursuant to this subsection or using proceeds deposited with the Agent by
the Banks and whether such funding occurs before or after the time on which
Banks are required to deposit the proceeds of such Loan with the Agent). The
Agent may, in reliance upon such assumption (but shall not be required to), make
available to the Borrower a corresponding amount. If such corresponding amount
is not in fact made available to the Agent by such Bank, the Agent shall be
entitled to recover such amount on demand from such Bank (or, if such Bank fails
to pay such amount forthwith upon such demand from the Borrower) together with
interest thereon, in respect of each day during the period commencing on the
date such amount was made available to the Borrower and ending on the date the
Agent recovers such amount, at a rate per annum equal to (y) the Federal Funds
Rate during the first three (3) days after such interest shall begin to accrue
and (z) the applicable interest rate in respect of such Loan after the end of
such three (3) day period.
(d) Maximum Principal Balance of Revolving Credit Loans. The
aggregate principal amount of all Revolving Credit Loans (including the
aggregate principal amount of all Swing Line Loans outstanding and the Letter of
Credit Undrawn Availability) shall not exceed the Revolving Credit Facility
Commitment. The Borrower agrees that if at any time the aggregate principal
amount of all Revolving Credit Loans (including the aggregate principal amount
of all Swing Line Loans outstanding and the Letter of Credit Undrawn
Availability) exceeds the Revolving Credit Facility Commitment ("Excess
Amount"), the Borrower shall promptly pay to the Agent such Excess Amount. If
not sooner paid, all of the Revolving Credit Loans, all unpaid accrued interest
thereon, and all other sums and costs incurred by the Agent and the Banks
pursuant to this Agreement with respect to the Revolving Credit Loans, shall be
immediately due and payable on the Revolving Credit Expiry Date, without notice,
presentment or demand.
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<PAGE> 16
2.02 Term Loan.
(a) Term Loan. Subject to the terms and conditions of, and
relying upon the representations and warranties set forth in, this Agreement and
the other Loan Documents, the Banks severally (and not jointly) agree to make a
term loan ("Term Loan") to the Borrower on the Closing Date in an aggregate
principal amount of Forty-Five Million Dollars ($45,000,000); provided, however,
that each of the Banks agrees to lend to the Borrower pro rata such Bank's
Commitment Percentage of the Term Loan.
(b) Term Loan Note. The obligation of the Borrower to repay
the unpaid principal amount of the Term Loan made to the Borrower by the Banks
and to pay interest on the unpaid principal amount thereof shall be evidenced by
the Term Notes of the Borrower, dated the Closing Date, in substantially the
form attached as Exhibits "B-1" and "B-2" to this Agreement, with the blanks
appropriately filled. Mellon shall receive the Mellon Term Note in the principal
amount equal to Mellon's Commitment with respect to the Term Loan. Key shall
receive the Key Term Note in the principal amount equal to Key's Commitment with
respect to the Term Loan. The executed Term Notes shall be delivered by the
Borrower to the Banks on the Closing Date.
(c) Making the Term Loan and Term Loan Rate Options.
(i) On or before 10:00 a.m. (Pittsburgh, Pennsylvania
time) on the second (2nd) Business Day prior to the Closing Date, the Borrower
shall advise the Agent of the portion of the Term Loan which shall be made as a
Libor Rate Loan(s) and the Interest Period(s) with respect thereto; provided,
however, that such Libor Rate Loan(s) shall only be made in such amount(s)
greater than or equal to One Million Dollars ($1,000,000) and, provided further,
that any amounts in excess of One Million Dollars ($1,000,000) may only be in
increments of One Hundred Thousand Dollars ($100,000). After the Closing Date,
the Borrower may, subject to the terms and conditions of this Agreement, convert
all or a portion of the Term Loan which is a Libor Rate Loan(s) to a Base Rate
Loan as set forth in this Section 2.02(c). Any portion of the Term Loan that is
converted from a Base Rate Loan into a Libor Rate Loan shall be converted, and
shall begin to accrue interest with reference to the Libor Rate, on such
Business Day, in such amount (greater than or equal to One Million Dollars
($1,000,000.00) provided, however, that any amount in excess of One Million
Dollars ($1,000,000) may only be in increments of One Hundred Thousand Dollars
($100,000)), and with such Interest Period as the Borrower shall request by
written notice from an Authorized Representative received by the Agent no later
than 10:00 a.m. (Pittsburgh, Pennsylvania time) on the third (3rd) Business Day
prior to the requested date of conversion into such Libor Rate Loan. In
addition, in the event that the Borrower desires to continue the portion of the
Term Loan which is a Libor Rate Loan for an additional Interest Period, the
Borrower shall provide the Agent with written notice thereof from an Authorized
Representative on or before 10:00 a.m. (Pittsburgh, Pennsylvania time) on the
third (3rd) Business Day prior to the expiration of the applicable Interest
Period. In the event that the Borrower fails to provide the Agent with the
required written notice prior to 10:00 a.m. (Pittsburgh, Pennsylvania time) on
the third (3rd) Business Day prior to the expiration of the applicable Interest
Period for a Libor Rate Loan, the Borrower shall be deemed to have given notice
that such portion of the Term Loan shall be converted to a Base Rate Loan on the
last day of the applicable Interest Period. Each written notice of any Libor
Rate Loan shall be
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<PAGE> 17
irrevocable and binding on the Borrower and the Borrower shall indemnify the
Banks against any loss or expense incurred by the Banks as a result of any
failure by the Borrower to consummate such transaction calculated as set forth
in Section 2.15(c) hereof.
(ii) On the Closing Date and until conversion, if
any, pursuant to the terms and conditions of this Agreement, the portion of the
Term Loan which is not a Libor Rate Loan shall be a Base Rate Loan. After the
Closing Date, the Borrower shall have the option, subject to the terms and
conditions of this Agreement, to convert a portion of the Term Loan which is a
Base Rate Loan to a Libor Rate Loan as set forth in Section 2.02(c)(i). Any
portion of the Term Loan that is converted from a Libor Rate Loan into a Base
Rate Loan shall be converted, and shall begin to accrue interest with reference
to the Base Rate, on such Business Day and in such amount as the Borrower shall
request by written notice received by the Agent no later than 10:00 a.m.
(Pittsburgh, Pennsylvania time) on the Business Day of the requested conversion
of such portion of the Term Loan into a Base Rate Loan.
(d) Payments of Principal and Maturity. Commencing on October
1, 1999, and continuing on the first day of each January, April, July and
October thereafter through and including the Term Loan Expiry Date, the Borrower
shall make a principal payment in the amount of One Million One Hundred
Twenty-Five Thousand and 00/100 Dollars ($1,125,000.00) to the Agent for the
ratable account of the Banks. All remaining unpaid principal, accrued interest
and all other sums and costs incurred by the Agent and/or the Banks pursuant to
this Agreement with respect to the Term Loan shall be immediately due and
payable on the Term Loan Expiry Date without notice, presentment or demand.
2.03 Swing Line Loan Commitment.
(a) Swing Line Loans. Subject to the terms and conditions and
relying upon the representations and warranties set forth in this Agreement and
the other Loan Documents, the Swing Line Lender may in its sole and absolute
discretion, make a portion of its Revolving Credit Commitment available to the
Borrower at any time and from time to time during the period from the Closing
Date through and including the Business Day immediately preceding the Revolving
Credit Expiry Date by making Swing Line Loans to the Borrower in an aggregate
principal amount not exceeding at any one time outstanding Ten Million and
00/100 Dollars ($10,000,000.00) (the "Swing Line Loan Commitment"); provided,
however, that the aggregate principal amount of such Swing Line Loans, when
aggregated with the Swing Line Lender's outstanding Revolving Credit Loans and
the Swing Line Lender's Pro Rata Share of the Letter of Credit Undrawn
Availability may not exceed at any one time outstanding the Swing Line Lender's
Revolving Credit Commitment or the Revolving Credit Facility Commitment;
provided further that any reduction of the Revolving Credit Facility Commitment
made pursuant to Section 2.19 which reduces the aggregate Swing Line Lender's
Revolving Credit Commitment to an amount less than the then current amount of
the Swing Line Loan Commitment shall result in an automatic corresponding
reduction of the Swing Line Loan Commitment to the amount of the Swing Line
Lender's Revolving Credit Commitment, as so reduced, without any further action
on the part of the Borrower, the Agent or the Swing Line Lender. The Swing Line
Loan Commitment shall expire on the Revolving Credit Expiry Date and, if not
sooner paid, all Swing Line Loans, all unpaid interest thereon and all other
sums and costs incurred hereunder with respect to the Swing Line Loans shall be
immediately due and payable on the Revolving Credit
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Expiry Date, without notice, presentment or demand. Within the limits of time
and amount set forth in this Section 2.03, and subject to the provisions of this
Agreement including, without limitation, the Swing Line Lender's right to demand
repayment of the Swing Line Loans upon the occurrence of an Event of Default,
Borrower may borrow, repay and reborrow under this Section 2.03.
(b) Swing Line Note. The obligation of the Borrower to repay
the unpaid principal amount of the Swing Line Loans made to the Borrower by the
Swing Line Lender and to pay interest on the unpaid principal amount thereof
will be evidenced in part by the Swing Line Note of Borrower dated the Closing
Date, in substantially the form attached as Exhibit "C" to this Agreement with
the blanks appropriately filled. The executed Swing Line Note will be delivered
by Borrower to the Swing Line Lender on the Closing Date.
(c) Making Swing Line Loans. The Borrower shall be deemed to
have (i) requested that the Swing Line Lender make a Swing Line Loan on each day
that the Borrower has an overdraft in its automatic borrowing service account
with the Swing Line Lender, in an amount equal to such overdraft, and (ii)
certified as of the date of disbursement of each Swing Line Loan that no Event
of Default or Potential Default shall have occurred and be continuing and that
all applicable conditions specified in Article IV hereof are satisfied. The
Swing Line Lender shall give notice to the Agent no later than 10:00 a.m.
(Pittsburgh, Pennsylvania time) of the next Business Day or such other time as
the Agent and the Swing Line Lender may agree of the amount of such Swing Line
Loan.
(d) Refunded Swing Line Loans. With respect to any Swing Line
Loans, the Swing Line Lender may, at any time in its sole and absolute
discretion, deliver to the Agent (with a copy to the Borrower), no later than
10:00 a.m. (Pittsburgh, Pennsylvania time) on the first (1st) Business Day
immediately preceding the proposed date of disbursement, a notice (which shall
be deemed to be a notice of borrowing given by an Authorized Representative)
requesting the Banks to make Revolving Credit Loans that are Base Rate Loans on
such date in an amount equal to the amount of such Swing Line Loans (the
"Refunded Swing Line Loans") outstanding on the date such notice is given which
the Swing Line Lender requests the Banks to prepay. Anything contained in this
Agreement to the contrary notwithstanding, (i) the proceeds of such Revolving
Credit Loans made by Banks other than the Swing Line Lender shall be immediately
delivered by the Agent to the Swing Line Lender (and not to the Borrower) and
applied to repay a corresponding portion of the Refunded Swing Line Loans and
(ii) on the day such Revolving Credit Loans are made, the Swing Line Lender's
Pro Rata Share of the Refunded Swing Line Loans shall be deemed to be paid with
the proceeds of a Revolving Credit Loan made by the Swing Line Lender, and such
portion of the Swing Line Loans deemed to be so paid shall no longer be
outstanding as Swing Line Loans and shall no longer be due under the Swing Line
Note of the Swing Line Lender but shall instead constitute part of the Swing
Line Lender's outstanding Revolving Credit Loans and shall be due under the
Mellon Revolving Credit Note. The Borrower hereby authorizes the Agent and the
Swing Line Lender to charge the Borrower's accounts with the Agent and the Swing
Line Lender (up to the amount available in each such account) in order to
immediately pay the Swing Line Lender the amount of the Refunded Swing Line
Loans to the extent the proceeds of such Revolving Credit Loans made by the
Banks, including the Revolving Credit Loan deemed to be made by the Swing Line
Lender, are not sufficient to repay in full the Refunded Swing Line Loans. If
any portion of any such amount
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<PAGE> 19
paid (or deemed to be paid) to the Swing Line Lender should be recovered by or
on behalf of the Borrower from the Swing Line Lender in bankruptcy, by
assignment for the benefit of creditors or otherwise, the loss of the amount so
recovered shall be ratably shared among all the Banks.
If for any reason (a) Revolving Credit Loans are not made upon
the request of the Swing Line Lender as provided in the immediately preceding
paragraph in an amount sufficient to repay any amounts owed to the Swing Line
Lender in respect of any outstanding Swing Line Loans or (b) the Revolving
Credit Facility Commitment is terminated at a time when any Swing Line Loans are
outstanding, each Bank shall be deemed to, and hereby agrees to, have purchased
a participation in such outstanding Swing Line Loans in an amount equal to its
Pro Rata Share (calculated, in the case of the foregoing clause (b), immediately
prior to such termination of the Revolving Credit Facility Commitment) of the
unpaid amount of such Swing Line Loans together with accrued interest thereon.
Upon one (1) Business Day's notice from the Swing Line Lender, each shall
deliver to the Swing Line Lender an amount equal to its respective participation
in same day funds at the Agent's Office. In order to further evidence such
participation (and without prejudice to the effectiveness of the participation
provisions set forth above), each Bank agrees to enter into a separate
participation agreement at the request of the Swing Line Lender in form and
substance reasonably satisfactory to the Swing Line Lender. In the event any
Bank fails to make available to the Swing Line Lender the amount of such
participation as provided in this paragraph, the Swing Line Lender shall be
entitled to recover such amount on demand from such Bank together with interest
thereon at the Base Rate. In the event that the Swing Line Lender receives a
payment of any amount in which other Banks have purchased participations as
provided in this paragraph, the Swing Line Lender shall promptly distribute to
each such other Bank its Pro Rata Share of such payment.
Anything contained herein to the contrary notwithstanding,
each Bank's obligation to make Revolving Credit Loans for the purpose of
repaying any Refunded Swing Line Loans pursuant to the second preceding
paragraph and each Bank's obligation to purchase a participation in any unpaid
Swing Line Loans pursuant to the immediately preceding paragraph shall be
absolute and unconditional and shall not be affected by any circumstance,
including (a) any set-off, counterclaim, recoupment, defense or other right
which such Bank may have against the Swing Line Lender, the Borrower or any
other Person for any reason whatsoever; (b) the occurrence or continuation of an
Event of Default or a Potential Default; (c) any Material Adverse Change; (d)
any breach of this Agreement or any other Loan Document by any Loan Party
thereto; or (e) any other circumstance, happening or event whatsoever, whether
or not similar to any of the foregoing; provided that such obligations of each
Bank are subject to the condition that (X) the Swing Line Lender believed in
good faith that all conditions under Article IV to the making of the applicable
Refunded Swing Line Loans or any unpaid Swing Line Loans, as the case may be,
were satisfied at the time such Refunded Swing Line Loans or unpaid Swing Line
Loans were made or (Y) the satisfaction of any such condition not satisfied had
been waived in writing by the Banks prior to or at the time such Refunded Swing
Line Loans or other unpaid Swing Line Loans were made.
2.04 Interest Rates.
(a) Interest on Loans. Subject to the terms and conditions of
this Agreement, the aggregate outstanding principal balance of the Swing Line
Loans shall bear interest at a rate per annum equal to the Swing Line Rate and
the aggregate outstanding principal balance of the
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<PAGE> 20
Revolving Credit Loans and Term Loans shall be, at the option of Borrower, as
selected pursuant to Section 2.01(c) or 2.02(c) as the case may be:
(i) Base Rate Loans which shall bear interest for
each day at a rate per annum equal to the Base Rate; or
(ii) Libor Rate Loans which shall bear interest
during each Interest Period at the rates determined pursuant to subsection
2.04(b) below.
(b) Interest on Libor Rate Loans. Subject to the terms and
conditions of this Agreement, until the first Incentive Pricing Effective Date
(as hereinafter defined), the Loans that are Libor Rate Loans shall bear
interest during each Interest Period at a fixed rate per annum equal to one and
one-eighth of one percent (1.125%) in excess of the Libor Rate for such Interest
Period. Subject to the terms and conditions of this Agreement, during each
Fiscal Quarter, the Borrower shall, in accordance with Section 5.01(b), submit
to the Agent and the Banks quarterly financial statements (the Fiscal Quarter in
which such financial statements are required to be received by the Agent is the
"Reporting Quarter") as of the last day of the Fiscal Quarter immediately
preceding such Reporting Quarter (with respect to any Reporting Quarter, the
Fiscal Quarter immediately preceding such Reporting Quarter is the "Measurement
Quarter"). Upon Agent's receipt of such quarterly financial statements in
accordance with Section 5.01(b) as of the last day of the Measurement Quarter
ending August 31, 1999 and as of the last day of each Measurement Quarter
thereafter, the Borrower's Leverage Ratio shall be calculated in good faith, and
from the first day of the Fiscal Quarter immediately following the Reporting
Quarter (the "Incentive Pricing Effective Date") until the next Incentive
Pricing Effective Date, Loans that are Libor Rate Loans shall bear interest as
follows:
(i) If Tier I is applicable, Loans which are Libor
Rate Loans shall bear interest for each day during each applicable Interest
Period at a rate per annum equal to seven-eighths of one percent (0.875%) in
excess of the Libor Rate for such Interest Period;
(ii) If Tier II is applicable, Loans which are Libor
Rate Loans shall bear interest for each day during each applicable Interest
Period at a rate per annum equal to one and one-eighth of one percent (1.125%)
in excess of the Libor Rate for such Interest Period; or
(iii) If Tier III is applicable, Loans which are
Libor Rate Loans shall bear interest for each day during each applicable
Interest Period at a rate per annum equal to one and three-eighths of one
percent (1.375%) in excess of the Libor Rate for such Interest Period.
(c) Interest Payments. The Borrower shall pay to the Agent for
the ratable account of the Banks interest on the unpaid principal balance of the
aggregate outstanding balance of the Revolving Credit Loans which are Base Rate
Loans in arrears on the first (1st) day of each January, April, July and October
during the period from the Closing Date through and including the Revolving
Credit Expiry Date. The Borrower shall pay to the Agent for the ratable account
of the Banks interest on the unpaid principal balance of the Revolving Credit
Loans which are Libor Rate Loans on the earlier of (i) the last day of the
applicable Interest Period for such Loan or (ii) for such Loans with an
applicable Interest Period exceeding three (3) months, on the three (3) month
anniversary of each Loan during the period from the Closing Date through
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and including the Revolving Credit Expiry Date. The Borrower shall pay to the
Swing Line Lender interest on the unpaid principal balance of the aggregate
outstanding balance of the Swing Line Loans in arrears on the first (1st) day of
each January, April, July and October during the period from the Closing Date
through and including the Revolving Credit Expiry Date. The Borrower shall pay
to the Agent for the ratable account of the Banks interest on the portion of the
unpaid principal balance of the Term Loan which is a Base Rate Loan, in arrears,
on the first (1st) day of each January, April, July and October during the
period from the Closing Date through and including the Term Loan Expiry Date.
The Borrower shall pay to the Agent for the ratable account of the Banks
interest on the portions of the unpaid principal balance of the Term Loan which
are Libor Rate Loans, in arrears, on the earlier of (i) the last day of the
applicable Interest Period for each such Loan or (ii) for such Loans with an
applicable Interest Period exceeding three (3) months, on the three (3) month
anniversary of each Loan during the period from the Closing Date through and
including the Term Loan Expiry Date. After maturity of any part of the Loans
(whether upon the occurrence of an Event of Default, by acceleration or
otherwise), interest on such part of the Loans shall be immediately due and
payable without notice, presentment, or demand.
2.05 Interest After Default. After the occurrence and during
the continuance of an Event of Default, (i) the unpaid principal amount of the
Loans, accrued interest thereon, any fees or any other sums payable hereunder
shall thereafter until paid in full bear interest at a rate per annum equal to
two percent (2.00%) above the Base Rate then in effect, such interest rate to
change automatically from time to time effective as of the effective date of
each change in the Base Rate; and (ii) each Libor Rate Loan shall automatically
convert into a Base Rate Loan at the end of the applicable Interest Period; and
(iii) no Loans may be continued as or converted into a Libor Rate Loan. In the
event the rates of interest provided for in this Section 2.05, or any other
section of this Agreement, are finally determined by any Official Body to exceed
the maximum rate of interest permitted by applicable usury or similar laws,
their or its application will be suspended and there will be charged instead the
maximum rate of interest permitted by such Law.
2.06 [Reserved]
2.07 Fees.
A. The Borrower shall pay to the Agent for the ratable account
of the Banks:
(i) A non-refundable upfront fee, on or before the
Closing Date, in the amount of One Hundred Thirty-Five Thousand and 00/100
Dollars ($135,000.00);
(ii) A facility fee during the period from the
Closing Date to the Revolving Credit Expiry Date, calculated daily and payable
quarterly in arrears beginning on October 1, 1999 and continuing on the first
(1st) day of each January, April, July and October thereafter and on the
Revolving Credit Expiry Date (the "Facility Fee"). If (a) Tier I Pricing is in
effect with respect to the Loans on any day, the Facility Fee for such day shall
be equal to the Revolving Credit Facility Commitment multiplied by one-fifth of
one percent (0.20%), (b) Tier II Pricing is in effect with respect to the Loans
on any day, the Facility Fee for such day shall be equal to the Revolving Credit
Facility Commitment multiplied by one quarter of one percent (0.25%), or
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(c) Tier III Pricing is in effect with respect to the Loans on any day, the
Facility Fee for such day shall be equal to the Revolving Credit Facility
Commitment multiplied by three-tenths of one percent (0.30%);
(iii) The Letter of Credit Commission pursuant to
Section 2.09 hereof.
B. The Borrower shall pay to the Agent for its own account the
fees described in the first sentence of Section 2.09 hereof and in that certain
fee letter of even date herewith by and between Borrower and Agent in the
amounts, and at the times, specified therein.
2.08 Agreement to Issue Letters of Credit. From time to time
during the period from the Closing Date to the thirtieth (30th) day preceding
the Revolving Credit Expiry Date, subject to the further terms and conditions
hereof, including those required in connection with the making of Revolving
Credit Loans, the Agent shall issue Standby Letters of Credit (the "Letters of
Credit") for the account of the Borrower in an amount not to exceed Five Million
and 00/100 Dollars ($5,000,000.00) in the aggregate, as a subfacility of the
Revolving Credit Facility Commitment; provided, however, that on any date that
the Borrower requests a Letter of Credit, and after giving effect to the Letter
of Credit Face Amount of such Letter of Credit, the sum of the outstanding
Revolving Credit Loans, the outstanding Swing Line Loans, and the Letter of
Credit Undrawn Availability shall not exceed the Revolving Credit Facility
Commitment.
Each request for a Letter of Credit shall be delivered to the
Agent no later than 10:00 a.m. (Pittsburgh, Pennsylvania time) on the second
(2nd) Business Day, or such shorter period as may be agreed to by the Agent,
prior to the proposed date of issuance. Each such request shall be in a form
acceptable to the Agent and specify the Letter of Credit Face Amount thereof,
the account party, the beneficiary, the intended date of issuance, the expiry
date thereof, and the nature of the transaction to be supported thereby. All
such Letters of Credit shall be issued by the Agent in accordance with its then
current practice relating to the issuance of Letters of Credit including, but
not limited to, the execution and delivery to the Agent of applications and
agreements required by the Agent and the payment by the Borrower of all
applicable fees required by Section 2.09 hereof. Immediately upon the issuance
of each Letter of Credit, each Bank shall be deemed to, and hereby irrevocably
and unconditionally agrees to, purchase from the Agent a participation in such
Letter of Credit and each drawing thereunder in an amount equal to such Bank's
Pro Rata Share of the Letter of Credit Face Amount of such Letter of Credit. The
Agent shall promptly provide to each Bank notice of each such request for a
Letter of Credit by the Borrower.
2.09 Letter of Credit Fees. The Borrower shall pay to the
Agent for its own account (a) an issuance fee equal to one-eighth of one percent
(0.125%) of the Letter of Credit Face Amount of each Letter of Credit issued
hereunder, such fee to be paid on the date of issuance of each Letter of Credit,
(b) the Agent's standard amendment fees for each amendment of any Letter of
Credit issued hereunder, such fee to be paid on the date of the amendment of
such Letter of Credit, and (c) any out-of-pocket expenses and costs incurred by
the Agent for the issuance of any Letter of Credit issued hereunder, such costs
and expenses to be paid on demand. The Borrower shall also pay to the Agent for
the ratable account of the Banks a fee (the "Letter of Credit Commission") equal
to the daily average Letter of Credit Undrawn Availability multiplied by (i)
seven-eighths of one percent (0.875%) per annum if Tier I is applicable with
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respect to the Loans on such day, (ii) one and one-eighth of one percent
(1.125%) per annum if Tier II is applicable with respect to the Loans on such
day, or (iii) one and three-eighths of one percent (1.375%) per annum if Tier
III is applicable with respect to the Loans on such day, such Letter of Credit
Commission shall be payable quarterly in arrears beginning on October 1, 1999
continuing on the first (1st) day of each January, April, July and October
thereafter and on the Revolving Credit Expiry Date. Notwithstanding the
foregoing, after the occurrence and during the continuance of an Event of
Default, the Letter of Credit Commission, as calculated above, shall be
increased by two percent (2.00%).
2.10 Payments Under Letters of Credit. Upon a draw under any
Letter of Credit, the Borrower irrevocably authorizes the Agent immediately to
treat such draw as a request for a Revolving Credit Loan which shall be a Base
Rate Loan in the amount of such draw, subject to the terms and conditions of
this Agreement.
2.11 Period of Issuance and Term of Letters of Credit. Letters
of Credit shall only be issued by the Agent for the account of the Borrower for
such terms that expire ten (10) days prior to the Revolving Credit Expiry Date.
2.12 Adjustment to Swing Line Rate and Base Rate; Computation
of Interest and Fees. In the event of any change in the Swing Line Rate or the
Base Rate, the rate of interest upon each Base Rate Loan and Swing Line Loan, as
the case may be, shall be adjusted to immediately correspond with such change;
except any interest rate charged hereunder shall not exceed the highest rate
permitted by Law. Interest on Base Rate Loans and Swing Line Loans shall be
computed on the basis of a year of three hundred sixty-five (365) days and paid
for the actual number of days elapsed. Interest on Libor Rate Loans, unpaid fees
and other sums payable hereunder shall be computed on the basis of a year of
three hundred sixty (360) days and paid for the actual number of days elapsed.
2.13 Booking of Libor Rate Loans. Each Bank may make, carry or
transfer Libor Rate Loans at, to or for the account of, any of its branch
offices or the office of an affiliate of such Bank; provided, however, that no
such action shall result in liability or cost to the Borrower, including any
liability or cost pursuant to Sections 2.15 or 2.16 hereof.
2.14 Assumptions Concerning Funding of Libor Rate Loans.
Calculation of all amounts payable to each Bank under Section 2.15(c) shall be
made as though each Bank had actually funded its relevant Libor Rate Loan
through the purchase of a Libor deposit bearing interest at the Libor Rate in an
amount equal to the amount of that Libor Rate Loan and having maturity
comparable to the relevant Interest Period and through the transfer of such
Libor deposit from an offshore office to a domestic office in the Untied States
of America; provided, however, that each Bank may fund each of its Libor Rate
Loans in any manner it sees fit; (provided, however, that no such action shall
result in liability or cost to the Borrower, including any liability or cost
pursuant to Sections 2.15 or 2.16 hereof) and the foregoing assumption shall be
utilized only for the calculation of amounts payable under Section 2.15(c).
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<PAGE> 24
2.15 Additional Costs.
(a) If, due to either (i) the introduction of, or any change
in, or in the interpretation of, any Law or (ii) the compliance with any
guideline or request from any central bank or other governmental authority
(whether or not having the force of Law), there shall be any increase in the
cost to, or reduction in income receivable by, such Bank of making, funding or
maintaining Loans (or commitments to make the Loans), then the Borrower shall
from time to time, upon demand by such Bank, pay to the Agent for the account of
such Bank additional amounts sufficient to reimburse such Bank for any such
additional costs or reduction in income. A certificate of such Bank submitted to
the Borrower on or before the date such demand is made in good faith as to the
amount of such additional costs shall be conclusive and binding for all
purposes, absent manifest error. Within five (5) Business Days after such Bank
notifies the Borrower of any such additional costs pursuant to this Section
2.15(a), the Borrower may either (A) prepay in full all Loans of any types so
affected then outstanding, together with interest accrued thereon to the date of
such prepayment, or (B) convert all Loans of any types so affected then
outstanding into Loans of any other type not so affected upon not less than four
(4) Business Days' notice to the Agent. If any such prepayment or conversion of
any Libor Rate Loan occurs on any day other than the last day of the applicable
Interest Period for such Loan, the Borrower also shall pay to the Agent for the
ratable account of the Banks such additional amounts as set forth in Section
2.15(c).
(b) If either (i) the introduction of, or any change in, or in
the interpretation of, any Law or (ii) the compliance with any guideline or
request from any central bank or other governmental authority (whether or not
having the force of Law), affects or would affect the amount of capital required
or expected to be maintained by any Bank or any corporation controlling any Bank
and such Bank determines in good faith that the amount of such capital is
increased by or based upon the existence of the Loans (or commitment to make the
Loans) and other extensions of credit (or commitments to extend credit) of
similar type, then, upon demand by such Bank, the Borrower shall pay to the
Agent for the account of such Bank from time to time as specified by such Bank
additional amounts sufficient to compensate such Bank in the light of such
circumstances, to the extent that such Bank reasonably determines such increase
in capital to be allocable to the existence of such Bank's Loans (or commitment
to make the Loans). A certificate of such Bank in good faith submitted to the
Borrower on or before the date such demand is made as to such amounts shall be
conclusive and binding for all purposes, absent manifest error. Within five (5)
Business Days after such Bank notifies the Borrower of any such additional costs
pursuant to this Section 2.15(b), the Borrower may either (A) prepay in full all
Loans of any types so affected then outstanding, together with interest accrued
thereon to the date of such prepayment, or (B) convert all Loans of any types so
affected then outstanding into Loans of any other type not so affected upon not
less than four (4) Business Days' notice to the Bank. If any such prepayment or
conversion of any Libor Rate Loan occurs on any day other than the last day of
the applicable Interest Period for such Loan, the Borrower also shall pay to the
Agent for the ratable account of the Banks such additional amounts as set forth
in Section 2.15(c).
(c) If the Borrower shall prepay any Libor Rate Loan on a day
other than the last day of the applicable Interest Period for such Loan (whether
such prepayment is permitted by Section 2.15 or 2.16, as a result of the failure
by Borrower to consummate a transaction after
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<PAGE> 25
providing notice as set forth in Sections 2.01(c)(i) and (ii) and 2.02(c)(i),
(ii) and (iii), or otherwise permitted by Agent or otherwise required under the
terms of this Agreement) (a "Funding Breakage Date"), the Borrower shall pay to
the Agent for the ratable account of the Banks an amount (the "Funding Breakage
Indemnity") determined by the Agent as follows:
(i) first, calculate the following amount: (A) the
principal amount of such Loans owing to the Banks which shall
be prepaid times (B) the greater of (x) zero or (y) the rate
of interest applicable to such principal amount on the Funding
Breakage Date minus the Treasury Rate as of the Funding
Breakage Date, times (c) the number of days from and including
the Funding Breakage Date to, but not including, the last day
of such Interest Period, times (d) 1/360;
(ii) the Funding Breakage Indemnity to be paid by the
Borrower to the Agent for the ratable account of the Banks
shall be the amount equal to the present value as of the
Funding Breakage Date (discounted at the Treasury Rate as of
such Funding Breakage Date, and calculated on the basis of a
year of 365 or 366 days, as the case may be, and actual days
elapsed) of the amount described in the preceding clause (i)
(which amount described in the preceding clause (i) is assumed
for purposes of such present value calculation to be payable
on the last day of the corresponding Interest Period).
Such Funding Breakage Indemnity shall be due and payable on demand, and the
Agent shall, upon making such demand, notify the Borrower of the amount so
demanded. In addition, the Borrower shall, on the due date for payment of any
Funding Breakage Indemnity, pay to the Agent for the ratable account of the
Banks an additional amount equal to interest on such Funding Breakage Indemnity
from the Funding Breakage Date to, but not including, such date at the Base
Rate. The amount payable to the Agent for the ratable account of the Banks under
this Section 2.15(c) shall be determined in good faith by the Banks, and such
determination shall be conclusive absent manifest error.
2.16 Illegality; Impracticability. Notwithstanding any other
provision contained in this Agreement, if: (a) it is unlawful, or any central
bank or other governmental authority shall determine that it is unlawful, for
the Agent or any Bank to perform its obligations hereunder; or (b) on any date
on which a Libor Rate would otherwise be set, any Bank shall have in good faith
determined (which determination shall be conclusive absent manifest error) that
(i) adequate and reasonable means do not exist for ascertaining a Libor Rate,
(ii) a contingency has occurred which materially and adversely affects the
interbank markets, or (iii) the effective cost to such Bank of funding a
proposed Libor Rate Loan exceeds the Libor Rate, then (y) on notice thereof by
the Agent to the Borrower, the obligation of the such Bank to make or continue a
Loan of a type so affected or to convert any type of Loan into a Loan of a type
so affected shall terminate and such Bank shall thereafter be obligated to make
Base Rate Loans whenever any written notice requests any type of Loans so
affected and (z) upon demand therefor by such Bank to the Borrower, the Borrower
shall either (i) forthwith prepay in full all Loans of the type so affected then
outstanding, together with interest accrued thereon or (ii) request that such
Bank, upon four (4) Business Days' notice, convert all Loans of the type so
affected then outstanding into Loans of a type not so affected. If any such
prepayment or conversion of any Libor Rate Loan occurs on any day other than the
last day of the applicable Interest Period for such Loan,
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<PAGE> 26
the Borrower also shall pay to the Agent for the ratable account of the Banks
such additional amounts as set forth in Section 2.15(c).
2.17 Payments. All payments to be made with respect to
principal, interest, fees or other amounts due from the Borrower under this
Agreement or under the Notes are payable at 12:00 noon (Pittsburgh, Pennsylvania
time), on the day when due, without presentment, demand, protest or notice of
any kind, all of which are hereby expressly waived, and an action for the
payments will accrue immediately. All such payments must be made to the Agent at
its Office in U.S. Dollars and in funds immediately available at such Office,
without setoff, counterclaim or other deduction of any nature. The Agent may in
its discretion deduct such payments from the Borrower's demand or deposit
accounts with the Agent on the due date. All such payments shall be applied at
the option of the Agent and the Banks to accrued and unpaid interest,
outstanding principal and other sums due under this Agreement in such order as
the Agent and the Banks, in their sole discretion, shall elect. All such
payments shall be made net of, without deduction or offset, and free and clear
of any and all present and future taxes, levies, deductions, charges, and
withholdings and all liabilities with respect thereto, excluding income and
franchise taxes imposed on the Banks under the Laws of the United States or any
state or political subdivision thereof. If the Borrower is compelled by Law to
deduct any such taxes or levies (other than such excluded taxes) or to make any
such other deductions, charges, or withholdings, it will pay such additional
amounts as may be necessary in order that the net payments after such deduction,
and after giving effect to any United States federal or state income taxes
required to be paid by the Bank in respect of such additional amounts, shall
equal the amount of such payment without such tax, deduction or withholding.
2.18 Optional Prepayments of Term Loan. Subject to the
provisions of this Section 2.18, the Borrower shall have the right, at its
option, to prepay the Term Loan in whole or in part (in any amount) at any time;
provided, however, that any portion of the Term Loan which is a Libor Rate Loan
may only be prepaid without the payment of amounts due under Section 2.15(c)
hereunder at the end of the Interest Period for such Loan. All prepayments of
any portion of the Term Loan shall be applied to the unpaid installments of
principal in the reverse order of their scheduled maturities. In the event that
any portion of the Term Loan which is being prepaid is a Libor Rate Loan, the
Borrower shall give the Agent written notice from an Authorized Representative
(which shall be irrevocable) of each prepayment not later than 10:00 a.m.
(Pittsburgh, Pennsylvania time) on the second (2nd) Business Day immediately
preceding the date of prepayment, specifying the aggregate amount of principal
to be prepaid and the prepayment date. In the event that any portion of the Term
Loan which is being prepaid is a Base Rate Loan, the Borrower shall give the
Agent written notice from an Authorized Representative (which shall be
irrevocable) of each prepayment not later than 10:00 a.m. (Pittsburgh,
Pennsylvania time) on the date of prepayment, specifying the aggregate amount of
principal to be prepaid and the prepayment date. Following receipt of any notice
as specified in this Section 2.18, the principal amount specified therein,
together with accrued unpaid interest thereon to the date of such prepayment,
shall be due and payable on such prepayment date without notice, presentment or
demand. The amounts specified in such notice shall be due and payable by the
Borrower to the Agent for the ratable account of the Banks upon delivery of such
notice.
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<PAGE> 27
2.19 Voluntary Termination or Reduction of Revolving Credit
Facility Commitment. The Borrower may terminate this Agreement by giving Agent
notice of the date on which this Agreement is to be terminated (the "Voluntary
Termination Date"), which date must be at least sixty (60) days after the date
of such notice. On such Voluntary Termination Date, in addition to the fees set
forth in Section 2.15, the Borrower shall pay to the Agent for the ratable
account of the Banks, the outstanding principal balance of all Loans
outstanding, all accrued unpaid interest thereon, and all other sums and costs
incurred by Agent and/or the Banks pursuant to this Agreement and shall cause
letters of credit to be issued in replacement of the Letters of Credit or other
arrangements to be made with the Agent and the Banks as acceptable by the Agent
and the Banks in their sole reasonable discretion. At any time and from time to
time after the Closing Date, the Borrower may, subject to the terms and
conditions to this Agreement, reduce the amount of the Revolving Credit Facility
Commitment, in such amount (greater than or equal to Five Million and 00/100
Dollars ($5,000,000.00); provided, however that any amount in excess of Five
Million and 00/100 Dollars ($5,000,000.00) may only be in increments of One
Million and 00/100 Dollars ($1,000,000.00)), and on such day as the Borrower
shall request by written notice from an Authorized Representative received by
the Agent no later than 10:00 a.m. (Pittsburgh, Pennsylvania time) on the second
(2nd) Business Day prior to the date of the requested reduction. On the date of
such reduction, in addition to the fees set forth in Section 2.15, if any, the
Borrower shall pay to the Agent for the ratable account of the Banks, the amount
by which all Revolving Credit Loans outstanding (including the outstanding Swing
Line Loans and the Letter of Credit Undrawn Availability) exceed the Revolving
Credit Facility Commitment as reduced pursuant to this Section 2.19.
2.20 Loan Account. The Agent shall maintain in its books and
records, including computer records, in accordance with its customary
procedures, a loan account (the "Loan Account") in the name of the Borrower in
which shall be recorded the date and amount of each Loan made by the Banks and
the date and amount of each payment and prepayment in respect thereof; provided,
however, that the failure by the Agent to record the date and amount of any such
information shall not adversely affect the Agent or any Bank. The Agent shall
record in the Loan Account the principal amount of the Loans owing to each Bank
from time to time. The Loan Account shall constitute presumptive evidence,
absent manifest error, of the accuracy of the information contained therein.
Failure by the Agent to make any such notation or record shall not affect the
obligations of the Borrower to the Banks with respect to the Loans.
2.21 Estoppel. As further consideration for the entry of the
Banks into this Agreement, Borrower hereby represents and warrants that it does
not presently have any claims or actions of any kind at Law or in equity against
Mellon arising out of or in any way relating to the Prior Loan Agreement or any
related documents with respect thereto, the transactions referenced in or
contemplated by this Agreement or any acts, transactions, or events that are or
were the subject matter of any other prior loans or agreement or guaranties
involving the Borrower.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Loan Parties, as the case may be, represent and warrant to
the Agent and the Banks that:
3.01 Organization and Qualification. The Loan Parties and each
of their United States Subsidiaries are corporations, partnerships or limited
partnerships, as the case may be, duly organized, validly existing and in good
standing under their respective jurisdictions of incorporation. The Loan Parties
and each of their United States Subsidiaries are duly qualified or licensed to
do business as a foreign corporation and are in good standing in all
jurisdictions in which the ownership of their properties or the nature of their
activities or both makes such qualification or licensing necessary, except only
to the extent that the failure to be so qualified or licensed would not have a
Material Adverse Effect.
3.02 Power to Carry on Business; Licenses. The Loan Parties
and each of their United States Subsidiaries have all requisite corporate power
and authority to own and operate their properties and to carry on their business
as now conducted and as presently planned to be conducted. The Loan Parties and
each of their United States Subsidiaries have all licenses, permits, consents
and governmental approvals or authorizations necessary to carry on their
business as now conducted or as presently planned to be conducted except only
for such licenses, permits, consents and governmental approvals or
authorizations the failure of which to obtain would not have a Material Adverse
Effect.
3.03 Execution and Binding Effect. This Agreement, the Notes,
the Guaranties, and the other Loan Documents to which any Loan Party is a party
have been duly authorized by all appropriate corporate action of such Loan Party
and have been duly and validly executed and delivered by the Loan Parties which
are parties thereto, and each such agreement constitutes a legal, valid and
binding obligation of such Loan Parties, enforceable against each such Loan
Party in accordance with its terms, except, in each case, as 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.
3.04 Absence of Conflicts. Neither the execution and delivery
of this Agreement or the other Loan Documents by any Loan Party, nor the
consummation of the transactions contemplated in any of them by any Loan Party,
nor the performance of or compliance with their terms and conditions by any Loan
Party will (a) violate any Law, (b) conflict with or result in a breach of or a
default under the articles of incorporation or by-laws of any Loan Party, (c)
conflict with or result in a breach or a default under any material agreement or
instrument to which any Loan Party or any of their Subsidiaries is a party or by
which any of them or any of their material properties (now owned or acquired in
the future) may be subject or bound or (d) result in the creation or imposition
of any Lien upon any property (owned or leased) of any Loan Party or any of
their Subsidiaries.
3.05 Authorizations and Filings. No authorization, consent,
approval, license, exemption or other action by, and no registration,
qualification, designation, declaration or filing
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<PAGE> 29
with, any Official Body is or will be necessary or advisable in connection with
the execution and delivery of this Agreement or the other Loan Documents by any
Loan Party which is a party thereto, the consummation by any Loan Party which is
a party thereto of the transactions contemplated in any of them, or the
performance of or compliance by the Loan Parties with the terms and conditions
of this Agreement or the other Loan Documents to which they are a party.
3.06 Title to Property. The Loan Parties and each of their
Subsidiaries have good and marketable title in fee simple to all real property
and good and marketable title to all other property purported to be owned by
them, including that reflected in the most recent balance sheet referred to in
Section 3.07 of this Agreement or submitted pursuant to Section 5.01(a) of this
Agreement (except as sold or otherwise disposed of in the ordinary course of
business), subject only to Liens not forbidden by Section 6.01 of this
Agreement.
3.07 Financial Statements.
(a) The Borrower has delivered to the Agent and the Banks a
Consolidated balance sheet and related statements of income, cash flow and
shareholders' equity of the Borrower and its Subsidiaries for the fiscal year
ending August 31, 1998, as audited by Ernst & Young LLP without qualification.
Such financial statements (including the notes) present fairly in all material
respects the Consolidated financial position of the Borrower and its
Subsidiaries as of the end of such fiscal period and the results of their
operations and their cash flow for the fiscal period then ended, all in
accordance with GAAP applied consistently with the audited financial statements
for the preceding fiscal year.
(b) the Borrower has delivered to the Agent and the Banks
internally prepared Consolidated balance sheets and related statements of income
and cash flow of the Borrower and its Subsidiaries for the Fiscal Quarters
ending November 30, 1998, February 29, 1999 and May 31, 1999. Such financial
statements provided by the Borrower present fairly in all material respects the
financial position of the Borrower and its Subsidiaries as of the end of each
period and the results of their operations and their cash flow for each period,
all in conformity with GAAP (except that such financial statements do not
contain all of the footnote disclosure required by GAAP), applied on a basis
consistent with that of the preceding fiscal year's audited financial
statements, subject to year end adjustments.
3.08 Taxes. All tax returns required to be filed by the Loan
Parties and each of their Subsidiaries have been properly prepared, executed and
filed. All taxes, assessments, fees and other governmental charges upon the Loan
Parties, their Subsidiaries or upon any of their properties, income, sales or
franchises which are due and payable have been paid other than those not yet
payable without premium or penalty and those contested with due diligence in
good faith without the incurrence of any Lien against the Loan Parties which
would have a Material Adverse Effect. The reserves and provisions for taxes on
the books of the Loan Parties and their Subsidiaries are adequate for all open
years and for their current fiscal period. No Loan Party nor any Subsidiary
knows of any proposed additional assessment or basis for any assessment for
additional taxes (whether or not reserved against).
3.09 Litigation. Except as set forth in Schedule 3.09 hereof,
there is no pending, or to the best knowledge of the Loan Parties and their
Subsidiaries, contemplated or
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threatened, action, suit or proceeding by or before any Official Body against or
affecting the Loan Parties or their Subsidiaries, at Law or equity, which, if
adversely decided, would have a Material Adverse Effect.
3.10 Compliance with Laws. No Loan Party nor any Subsidiary of
a Loan Party is subject to any material contingent liability on account of any
Law or in violation of any Law which would have a Material Adverse Effect.
3.11 Pension Plans. (a) Each Plan has been and will be
maintained and funded in accordance with its terms and with all provisions of
ERISA and other applicable Laws; (b) no Reportable Event as defined in ERISA has
occurred and is continuing with respect to any Plan; (c) no liability to the
PBGC has been incurred with respect to any Plan, other than for premiums due and
payable; (d) no Plan has been terminated, no proceedings have been instituted to
terminate any Plan, and there exists no intent to terminate or institute
proceedings to terminate any Plan; (e) no withdrawal, either complete or
partial, has occurred or commenced with respect to any multi-employer Plan, and
there exists no intent to withdraw either completely or partially from any
multi-employer Plan; and (f) there has been no cessation of, and there is no
intent to cease, operations at a facility or facilities where such cessation
could reasonably be expected to result in a separation from employment of more
than 20% of the total number of employees who are participants under a Plan.
3.12 Patents, Licenses, Franchises. The Loan Parties and each
of their Subsidiaries owns or possesses the right to use all of the material
patents, trademarks, service marks, trade names, copyrights, licenses,
franchises and permits and rights with respect to the foregoing necessary to own
and operate their properties and to carry on their business as presently
conducted and presently planned to be conducted without conflict with the rights
of others.
3.13 Environmental Matters.
(a) No Loan Party nor any of their United States Subsidiaries
are in violation of The Comprehensive Environmental Response, Compensation and
Liability Act of 1980 ("CERCLA"), the Superfund Amendments and Reauthorization
Act of 1986, The Resource Conservation and Recovery Act of 1976, as amended by
the Hazardous and Solid Waste Amendments of 1984, The Clean Water Act, The Toxic
Substances Control Act and The Clean Air Act or any rule or regulation
promulgated pursuant to any of the foregoing statutes, or any other federal,
state or local environmental law, statute, rule, regulation or ordinance
applicable to the Loan Parties, any of their Subsidiaries or their respective
properties (all of the foregoing are sometimes collectively referred to in this
Section 3.13 as the "Environmental Laws") which would have a Material Adverse
Effect;
(b) No Loan Party, any United States Subsidiaries of a Loan
Party nor any of their Affiliates, directors, officers, employees, agents or
independent contractors have arranged, by contract, agreement or otherwise, (i)
for the disposal or treatment of, or (ii) with a transporter for the transport,
disposal or treatment of, any Hazardous Substance (as defined by CERCLA, as
amended), owned, used or possessed by any Loan Party or any Subsidiary of a Loan
Party, whether or not to a location identified by the Environmental Protection
Agency (the "EPA") on
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the National Priorities List, 40 C.F.R. Part 300, (or proposed by the EPA in the
Federal Register for listing on such National Priorities List) or identified
under any corresponding state statute or regulation concerning cleanup of waste
disposal sites (a "State Superfund Law") in violation of any applicable
Environmental Laws which would have a Material Adverse Effect;
(c) To the best knowledge of the Loan Parties, no predecessor
of any Loan Party has arranged by contract, agreement or otherwise, (i) for the
disposal or treatment of, or (ii) with a transporter for the transport, disposal
or treatment of, any Hazardous Substance, owned, used or possessed by the
predecessor in violation of any applicable Environmental Laws which would have a
Material Adverse Effect;
(d) To the best knowledge of the Loan Parties, no Loan Party,
any United States Subsidiary of a Loan Party nor any of their Affiliates "owned"
or "operated" any "facility" at the time any waste containing Hazardous
Substances was disposed of at such facility within the meaning of CERCLA, as
amended, or any State Superfund Law in violation of any applicable Environmental
Laws which would have a Material Adverse Effect.
3.14 Proceeds. The Borrower will use the proceeds of the
Revolving Credit Loans to repay Indebtedness of the Borrower to Mellon under the
Prior Loan Agreement and for general corporate purposes, working capital,
capital expenditures and acquisitions. The Borrower will use the proceeds of the
Term Loan to repay Indebtedness of the Borrower to Mellon under the Prior Loan
Agreement.
3.15 Margin Stock. No portion of the proceeds of any Loan
shall be used by any Loan Party for the purpose of purchasing or carrying margin
stock within the meaning of Regulation U in any manner that might cause the
borrowing or the application of such proceeds to violate any regulation or
requirement of the Board of Governors of the Federal Reserve System or to
violate the Securities Exchange Act of 1934.
3.16 No Event of Default: Compliance with Material Agreements.
Except as set forth on Schedule 3.16 to this Agreement, no event has occurred
and is continuing and no condition exists which constitutes an Event of Default
or Potential Default. No Loan Party nor any of their Subsidiaries are (i) in
violation of any term of any charter instrument or bylaw or (ii) in default
under any material agreement, lease or instrument to which any Loan Party or
their Subsidiaries are a party or by which they or any of their properties
(owned or leased) may be subject or bound.
3.17 No Material Adverse Change. Since May 31, 1999, there has
been no Material Adverse Change.
3.18 Subsidiaries. Schedule 3.18 to this Agreement sets forth
each Subsidiary of each of the Loan Parties, the authorized and outstanding
capital stock (or other equity interest) of such Subsidiary and the outstanding
capital stock (or other equity interest) of such Subsidiary which is owned by
the Loan Parties or any of their Subsidiaries.
3.19 Labor Controversies. There are no labor controversies
pending or, to the best knowledge of any Loan Party, threatened, against any
Loan Party or any of their Subsidiaries which, if adversely determined, would
have a Material Adverse Effect.
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3.20 Solvency. After the making of the Loans, each of the Loan
Parties (a) will be able to pay its debts as they become due, (b) will have
funds and capital sufficient to carry on its business and all businesses in
which it is about to engage, and (c) will own property having a value at both
fair valuation and at fair saleable value in the ordinary course of each Loan
Party's business greater than the amount required to pay its debts as they
become due. No Loan Party was insolvent immediately prior to the date of this
Agreement nor will it be rendered insolvent by the execution and delivery of
this Agreement, the borrowing hereunder and/or the consummation of any
transactions contemplated by this Agreement.
3.21 Accurate and Complete Disclosure. No representation or
warranty made by any Loan Party under this Agreement, the other Loan Documents
or the schedules and exhibits attached thereto, and no statement made by any
Loan Party in any financial statement (furnished pursuant to Sections 3.07 or
5.01 or otherwise), certificate, report, exhibit or document furnished by any
Loan Party to the Agent pursuant to or in connection with this Agreement is
false or misleading in any material respect (including by omission of material
information necessary to make such representation, warranty or statement not
misleading). No Loan Party is aware of any facts which it has not disclosed to
the Agent and/or the Banks in writing which would have a Material Adverse
Effect.
3.22 Year 2000. The Borrower (i) is reviewing the business and
operations of the Borrower and its Subsidiaries that could be adversely affected
by the Year 2000 Problem; (ii) has developed or is developing a compliance
program to address the Year 2000 Problem on a timely basis; (iii) to the best of
its knowledge, is compliant or has no reason to believe that it will not become
compliant on a timely basis and (iv) will continue to monitor its compliance to
verify that it remains compliant. Based upon such review and programs, the
Borrower reasonably believes that the Year 2000 Problem will not have a Material
Adverse Effect.
3.23 Governmental Regulation. The Borrower is not subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act or the Investment Company Act of 1940 or to any federal or state
statute or regulation limiting its ability to incur Indebtedness for borrowed
money.
ARTICLE IV
CONDITIONS OF LENDING
The obligation of the Agent and the Banks to make any Loan or
to issue any Letter of Credit is subject to the satisfaction of the following
conditions:
4.01 Representations and Warranties; Events of Default and
Potential Defaults. The representations and warranties contained in Article III
shall be true and correct on and as of the date of each Loan with the same
effect as though made on and as of each such date, except to the extent that any
such representation or warranty (including any Schedule referred to therein)
relates specifically to a prior date and except to the extent that any such
representation and warranty (including any Schedule referred to therein) is not
true and correct in any material respect as a result of activities or actions
permitted to be taken by any Loan Party or any of their Subsidiaries pursuant to
Article VI hereof. On the date of each Loan, no Event of Default and no
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Potential Default shall have occurred and be continuing or exist or shall occur
or exist after giving effect to the Loan to be made on such date. Each request
by the Borrower for any Loan shall constitute a representation and warranty by
the Borrower that the conditions set forth in this Section 4.01 have been
satisfied as of the date of such request. Failure of the Agent to receive notice
from the Borrower to the contrary before such Loan is made shall constitute a
further representation and warranty by the Borrower that the conditions referred
to in this Section 4.01 have been satisfied as of the date such Loan is made.
4.02 Proceedings and Incumbency. On the Closing Date, each
Loan Party shall have delivered or shall have caused to be delivered to the
Agent a certificate, in form and substance reasonably satisfactory to the Agent,
dated the Closing Date and signed on behalf of such Loan Party by the Secretary
or an Assistant Secretary of such Loan Party, certifying as to (a) true copies
of the articles of incorporation and bylaws of such Loan Party as in effect on
such date, (b) true copies of all corporate action taken by such Loan Party
relative to this Agreement, the Notes, the Guaranties and the other Loan
Documents to which such Loan Party is a party including, but not limited to,
that described in Section 3.03 of this Agreement, and (c) the names, true
signatures and incumbency of the officers of such Loan Party authorized to
execute and deliver this Agreement, the Notes, the Guaranties and the other Loan
Documents to which such Loan Party is a party. The Agent and the Banks may
conclusively rely on each such certificate unless and until a later certificate
revising the prior certificate has been furnished to the Agent.
4.03 Agreement and Notes. On the Closing Date, this Agreement
and the Notes, satisfactory in terms, form and substance to the Agent and the
Banks, shall have been executed and delivered by the Borrower to the Agent.
4.04 Guaranties. On the Closing Date, the Guaranties,
satisfactory in terms, form and substance to the Agent and the Banks, shall have
been executed by the Guarantors and delivered to the Agent.
4.05 Notice of Waiver of Rights with Respect to Confession of
Judgment. On the Closing Date, the Notice of Waiver of Rights with Respect to
Confession of Judgment, satisfactory in terms, form and substance to the Banks
and the Agent, shall have been executed and delivered by the Borrowers to the
Agent.
4.06 Opinion of Counsel. On the Closing Date, there shall have
been delivered to the Agent a written opinion, dated the Closing Date, of
counsel to the Loan Parties, in form and substance reasonably satisfactory to
Agent and the Banks and their counsel.
4.07 Other Documents and Conditions. On or before the Closing
Date, the following documents and conditions shall have been delivered to Agent
or satisfied by or on behalf of the Loan Parties:
(a) Good Standing and Tax Lien Certificates. A good standing
certificate of each Loan Party certifying to the good standing and corporate
status of such Loan Party, good standing/foreign qualification certificates from
other jurisdictions in which each Loan Party is qualified to do business and tax
lien certificates of each Loan Party from each jurisdiction in which such Loan
Party is qualified to do business.
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(b) Financial Statements. Financial statements as described in
Section 3.07 of this Agreement.
(c) Insurance. Evidence, in form and substance satisfactory to
the Agent and the Banks, that the business and all assets of the Loan Parties
and each of their Subsidiaries are adequately insured and that the Agent on
behalf of the Banks is entitled to thirty (30) days notice of cancellation and
modification of such insurance policies.
(d) Lien Search. Copies of record searches (including UCC
searches, judgment, tax and other lien searches) evidencing that no Liens exist
against the Borrower or any of its Subsidiaries except those Liens permitted by
Section 6.01 of this Agreement.
(e) [Reserved]
(f) No Material Adverse Change. No Material Adverse Change
shall have occurred with respect to the Loan Parties since May 31, 1999.
(g) Other Documents and Conditions. Such other documents and
conditions as may be required to be submitted to the Agent or any Bank by the
terms of this Agreement or of any Loan Document or set forth on the Closing
Checklist with respect to the transaction contemplated by this Agreement.
4.08 Details, Proceedings and Documents. All legal details and
proceedings in connection with the transactions contemplated by this Agreement
shall be satisfactory to the Banks and the Agent and the Banks shall have
received all such counterpart originals or certified or other copies of such
documents and proceedings in connection with such transactions, in form and
substance reasonably satisfactory to the Agent and the Banks, as the Agent and
the Banks may from time to time reasonably request.
4.09 Fees and Expenses. The Borrower shall have paid all
reasonable fees and charges as required for the Closing and relating to the
Closing, including reasonable legal fees, closing costs, filing and notary fees
and any other similar matters pertinent to the Closing.
ARTICLE V
AFFIRMATIVE COVENANTS
The Loan Parties, as the case may be, covenant to the Agent
and the Banks as follows:
5.01 Reporting and Information Requirements.
(a) Annual Audited Reports. As soon as practicable, and in any
event within ninety (90) days after the close of each fiscal year of the
Borrower, the Borrower will furnish to the Agent and each of the Banks
Consolidated audited statements of income, cash flow and shareholders' equity of
the Borrower and its Subsidiaries for such fiscal year and a Consolidated
audited balance sheet of the Borrower and its Subsidiaries as of the close of
such fiscal year, and notes to each, all in reasonable detail, setting forth in
comparative form the corresponding figures
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for the preceding fiscal year, prepared in accordance with GAAP applied on a
basis consistent with that of the preceding fiscal year (except for changes in
application in which such accountants concur) with such statements and balance
sheet to be certified by independent certified public accountants of recognized
standing selected by the Borrower and satisfactory to the Banks. The certificate
or report of such accountants shall be free of exceptions or qualifications not
acceptable to the Banks and shall in any event contain a written statement of
such accountants substantially to the effect that such accountants examined such
statements and balance sheet in accordance with generally accepted auditing
standards.
(b) Quarterly Reports. As soon as practicable, and in any
event within sixty (60) days after the close of each Fiscal Quarter during the
term of this Agreement, the Borrower will furnish to the Agent and each of the
Banks Consolidated statements of income and cash flow for the Borrower and its
Subsidiaries for such quarter and for the portion of the fiscal year to the end
of such quarter, and a Consolidated balance sheet of the Borrower and its
Subsidiaries as of the close of such quarter, all in reasonable detail. All such
statements and balance sheets shall be prepared by the Borrower and certified by
the President or the Chief Financial Officer of the Borrower as presenting
fairly the financial position of the Borrower and its Subsidiaries as of the end
of such quarter and the results of their operations for such periods in
conformity with GAAP (except that such financial statements do not contain all
footnote disclosure required by GAAP) applied in a manner consistent with that
of the most recent audited financial statements furnished to the Agent and each
of the Banks, subject to year end adjustment,.
(c) Quarterly Compliance Certificate. Each set of statements
and balance sheets delivered pursuant to Sections 5.01(a) and 5.01(b) of this
Agreement shall be accompanied by a compliance certificate, substantially in the
form of Exhibit D attached hereto, executed by the President or Chief Financial
Officer of the Borrower, stating that no Event of Default or Potential Default
exists and that the Borrower is in compliance with the financial covenants set
forth in Section 5.14 of this Agreement. Such certificate shall include all
figures necessary to calculate the Borrower's compliance with such financial
covenants. If an Event of Default or Potential Default has occurred and is
continuing or exists, such certificate shall specify in detail the nature and
period of existence of the Event of Default or Potential Default and any action
taken or contemplated to be taken by the Borrower.
(d) Filings With the Securities and Exchange Commission. As
soon as practicable, and in any event within ten (10) days after the filing
thereof, the Borrower shall furnish to the Agent and each of the Banks a copy of
(i) each proxy statement or report filed by the Borrower with the United States
Securities and Exchange Commission (the "SEC") under the Securities Exchange Act
of 1934, as amended, and (ii) each registration statement (except registration
statements on Form S-8) filed by the Borrower with the SEC under the Securities
Act of 1933, as amended.
(e) Audit Reports. Promptly upon receipt thereof, the Borrower
will deliver to the Agent and each of the Banks one copy of each other report
submitted to the Borrower by its independent accountants, including comment or
management letters, in connection with any annual, interim or special audit
report made by them of the Borrower or its books and records.
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(f) Visitation: Audits. Each Loan Party will permit such
persons as the Agent or any Bank may designate to visit and inspect any of the
properties of each Loan Party or its Subsidiaries, to examine, and to make
copies and extracts from, the books and records of each Loan Party and its
Subsidiaries and to discuss their affairs with their officers, employees and
independent accountants upon reasonable prior notice and during normal business
hours. Each Loan Party authorizes the officers, employees and independent
accountants for such Loan Party and its Subsidiaries to discuss with the Agent
and the Banks the affairs of each Loan Party and its Subsidiaries. The Agent and
each of the Banks agree to enter into customary confidentiality agreements in
form and substance reasonably satisfactory to the Agent and the Banks in
connection therewith.
(g) Notice of Event of Default. Promptly upon becoming aware
of an Event of Default or Potential Default, each Loan Party will give the Agent
and each of the Banks notice of the Event of Default or Potential Default,
together with a written statement of the President or Chief Financial Officer of
the Borrower setting forth the details of the Event of Default or Potential
Default and any action taken or contemplated to be taken by the Borrower.
(h) Notice of Material Adverse Change. Promptly upon becoming
aware thereof, each Loan Party will give the Agent and each of the Banks notice
by telephone or telecopier (with written confirmation sent on the same or next
Business Day) with respect to any Material Adverse Change or any development or
occurrence which would have a Material Adverse Effect.
(i) Further Information. Each Loan Party will promptly furnish
to the Agent and each of the Banks such other information relating to each Loan
Party and its Subsidiaries, and in such form, as the Agent or the Banks may
reasonably request from time to time.
5.02 Preservation of Existence and Franchises. Each Loan Party
and each of its Subsidiaries will maintain their respective corporate
existences, rights and franchises in full force and effect in their respective
jurisdictions of incorporation. Each Loan Party and each of its Subsidiaries
will qualify and remain qualified as a foreign corporation in each jurisdiction
in which the ownership of their properties or the nature of their activities or
both makes such qualification necessary except only to the extent that the
failure to be so qualified would not have a Material Adverse Effect.
5.03 Insurance. Each Loan Party and each of its Subsidiaries
will maintain with financially sound and reputable insurers insurance with
respect to their properties and business and against such liabilities,
casualties and contingencies and of such types and in such amounts as is
reasonably satisfactory to the Bank and as is customary in the case of
corporations or other entities engaged in the same or similar business or having
similar properties similarly situated. Each Loan Party and each of its
Subsidiaries will cause the Agent on behalf of the Banks to be provided with
thirty (30) days advance notice of the termination of any such policy of
insurance.
5.04 Maintenance of Properties. Each Loan Party and each of
its Subsidiaries will maintain or cause to be maintained in good repair, working
order and condition, the properties now or in the future owned, leased or
otherwise possessed by each of them and shall
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make or cause to be made all needful and proper repairs, renewals, replacements
and improvements to the properties so that the business carried on in connection
with the properties may be properly and advantageously conducted at all times
except only to the extent that the failure to do so would not have a Material
Adverse Effect.
5.05 Payment of Liabilities. Each Loan Party and each of its
Subsidiaries will pay or discharge:
(a) on or prior to the date on which a premium or penalty
attaches, all taxes, assessments, fees and other governmental charges or levies
imposed upon them or any of their respective properties, income, sales or
franchises other than those contested with due diligence in good faith without
the incurrence of any Lien which would have a Material Adverse Effect;
(b) on or prior to the date when due, all lawful claims of
materialmen, mechanics, carriers, warehousemen, landlords and other like persons
which, if unpaid, would result in the creation of a Lien upon any of their
property which would have a Material Adverse Effect;
(c) on or prior to the date when due, all other lawful claims
which, if unpaid, would result in the creation of a Lien upon any of their
property which would have a Material Adverse Effect; and
(d) all other current liabilities so that none is due more
than one hundred twenty (120) days after the due date for each liability, except
current liabilities which are subject to good faith dispute and as to which such
Loan Party or such Subsidiary has created adequate reserves on its books.
5.06 Financial Accounting Practices. Each Loan Party and each
of its Subsidiaries will make and keep books, records and accounts which, in
reasonable detail, accurately and fairly reflect their respective transactions
and dispositions of assets and maintain a system of internal accounting controls
sufficient to provide reasonable assurances that (a) transactions are executed
in accordance with management's general or specific authorization, (b)
transactions are recorded as necessary (i) to permit preparation of financial
statements in conformity with GAAP and (ii) to maintain accountability for
assets, (c) to ensure access to assets is permitted only in accordance with
management's general or specific authorization and (d) to ensure the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
5.07 Compliance with Laws. Each Loan Party and each of its
Subsidiaries shall comply with all applicable Laws except only to the extent
that the failure to do so would not have a Material Adverse Effect.
5.08 Pension Plans. Each Loan Party and each of its
Subsidiaries shall (a) keep in full force and effect any and all Plans which are
presently in existence or may, from time to time, come into existence under
ERISA, unless such Plans can be terminated without material liability to such
Loan Party or any Subsidiary in connection with such termination; (b) make
contributions to each of their Plans in a timely manner and in a sufficient
amount to comply with the requirements of ERISA; (c) comply with all material
requirements of ERISA which relate to
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such Plans so as to preclude the occurrence of any Reportable Event, Prohibited
Transaction (other than a Prohibited Transaction subject to an exemption under
ERISA) or material accumulated funding deficiency as such term is defined in
ERISA; and (d) notify the Agent and each of the Banks immediately upon receipt
by such Loan Party or any Subsidiary of any notice of the institution of any
proceeding or other action which may result in the termination of any Plan. Each
Loan Party shall deliver to the Agent and each of the Banks, promptly after the
filing or receipt thereof, copies of all reports or notices which such Loan
Party or any Subsidiary files or receives under ERISA with respect to the Plans
with or from the Internal Revenue Service, the PBGC, or the U.S. Department of
Labor, other than reports or notices which do not have a Material Adverse
Effect.
5.09 Use of Proceeds. Borrower shall use the proceeds of the
Loans for the purposes set forth in Section 3.14 hereof.
5.10 Continuation of and Change in Business. The Borrower and
its Subsidiaries will continue to engage in the business and activities in which
they are engaged as of the Closing Date .
5.11 Lien Searches. The Agent may, but shall not be obligated
to, conduct lien searches of each Loan Party and its Subsidiaries and their
assets and properties on an annual basis and at such other times as the Agent,
in its reasonable discretion, may determine to be necessary. The Borrower shall
reimburse the Agent for the Agent's reasonable out-of-pocket costs and expenses
in connection with such lien searches.
5.12 Further Assurances. The Borrower, at its own cost and
expense, will cause to be promptly and duly taken, executed, acknowledged and
delivered all further acts, documents and assurances as the Bank may from time
to time reasonably request in order to more effectively carry out the intent and
purposes of this Agreement and the transactions contemplated by this Agreement.
5.13 Ownership of Stock in Subsidiaries. The Borrower shall,
directly or through its Subsidiaries, maintain an ownership interest in each of
its Subsidiaries equal to the percentage ownership interest set forth on
Schedule 3.18 hereto except as otherwise permitted by Sections 6.04 and 6.05
hereof.
5.14 Financial Covenants. The following financial covenants
with respect to the Borrower shall apply:
(a) Tangible Net Worth. The Borrower shall maintain at all
times a Tangible Net Worth not less than the sum of (a) Sixty Five Million and
00/100 Dollars ($65,000,000.00) plus (b) fifty percent (50%) of the Net Income
of the Borrower for the Fiscal Quarter ending May 31, 1999 and each Fiscal
Quarter thereafter (excluding any net loss in any such Fiscal Quarter) plus (c)
fifty percent (50%) of the net proceeds to the Borrower from the sale by the
Borrower of its capital stock from and after August 31, 1999 as reflected in the
Borrower's Consolidated cash flow statements.
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(b) Leverage Ratio. The Borrower's Leverage Ratio shall be at
all times less than or equal to 6.00 to 1.00 for the period equal to the four
(4) most recently ended consecutive Fiscal Quarters during the term of this
Agreement.
(c) Interest Coverage Ratio. The Borrower's Interest Coverage
Ratio shall be at all times greater than or equal to 3.25 to 1.00 for the period
equal to the four (4) most recently ended consecutive Fiscal Quarters during the
term of this Agreement.
5.15 Acquisitions. On or prior to the date of any Acquisition
by a Loan Party the purchase price of which is in excess of One Million and
00/100 Dollars ($1,000,000) Borrower shall deliver to the Agent historical
financial information and all other information reasonably requested by the
Agent with respect to the Acquisition. In addition, if the purchase price for
any such Acquisition is in excess of Seven Million Five Hundred Dollars
($7,500,000), Borrower will provide Bank with pro forma financial statements and
a certificate from the President or Chief Financial Officer of the Borrower
which certifies that the Borrower is, and following such Acquisition, will be,
in compliance with all financial covenants set forth in Section 5.14 of this
Agreement.
5.16 Subsidiary Guaranties. Each Subsidiary of the Borrower
created, acquired or held subsequent to the Closing Date, shall immediately
execute and deliver to Agent a Guaranty, along with such corporate governance
and authorization documents as may be deemed necessary or advisable by the Agent
and the Majority Banks; provided, however, that (a) a Subsidiary shall not be
required to execute such Guaranty so long as (i) the total assets of such
Subsidiary are less than Five Million and 00/100 Dollars ($5,000,000.00), and
(ii) the aggregate of the total assets of all such Subsidiaries with total asset
values of less than Five Million and 00/100 Dollars ($5,000,000.00) does not
exceed the aggregate amount of Ten Million and 00/100 Dollars ($10,000,000.00),
and (b) a Subsidiary organized outside of the United States shall not be
required to execute a Guaranty. In the event that the total assets of any
Subsidiary which is not a Guarantor (other than Tuscarora Limited) are at any
time equal to greater than Five Million and 00/100 Dollars ($5,000,000.00), the
Borrower shall provide the Agent and the Banks with prompt written notice of
such asset value.
ARTICLE VI
NEGATIVE COVENANTS
The Loan Parties covenant to the Agent and the Banks as
follows:
6.01 Liens. The Loan Parties will not, and will not permit any
Subsidiary to, at any time, incur, create, assume or permit to exist, any Lien
on any of its property or assets, tangible or intangible, now or hereafter
owned, or agree to become liable to do so, except:
(a) Liens existing on the Closing Date and set forth on
Schedule 6.01 to this Agreement;
(b) Liens granted in favor of the Agent on behalf of the
Banks;
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(c) pledges or deposits under workers compensation,
unemployment insurance and social security laws, or to secure the performance of
bids, tenders, contracts (other than for the repayment of borrowed money) or
leases or to secure statutory obligations or surety or similar bonds used in the
ordinary course of business;
(d) Liens arising from taxes, assessments, fees, charges,
levies or claims described in Section 5.05 of this Agreement;
(e) purchase money security interests for purchases of
equipment and purchase money mortgages for purchases of real property permitted
under Section 6.02(d) of this Agreement;
(f) unfiled materialmen's, mechanics, workmen's and
repairmen's liens (provided, that if such a lien shall be filed or perfected, it
shall be discharged of record promptly by payment, bond or otherwise); and
(g) zoning restrictions, easements, minor restrictions on the
use of real property, minor irregularities in title thereto and other minor
Liens that do not secure the payment of money or the performance of an
obligation and that do not in the aggregate materially detract from the value of
a property or asset to, or materially impair its use in the business of, the
Loan Party or any Subsidiary.
6.02 Indebtedness. The Loan Parties will not, and will not
permit any Subsidiary to, at any time, create, incur, assume or suffer to exist
any Indebtedness, except:
(a) Indebtedness existing on the Closing Date, and set forth
on Schedule 6.02 to this Agreement, provided, however, that, without the prior
written consent of the Agent and the Majority Banks, (i) none of such
Indebtedness shall be extended, renewed or refinanced and (ii) the principal
amount of and interest rate charged on such Indebtedness shall not be increased;
(b) Indebtedness under this Agreement, the Notes, the other
Loan Documents or under any other document, instrument or agreement between a
Loan Party or a Subsidiary and the Agent, a Bank or Mellon Europe Limited;
(c) current accounts payable, accrued taxes reflected as
current liabilities and other current items arising out of transactions (other
than borrowings) in the ordinary course of business;
(d) purchase money Indebtedness for purchases of equipment and
purchases of real property in the ordinary course of business and in amounts
which shall not exceed Five Hundred Thousand and 00/100 Dollars ($500,000.00) as
to any one purchase of equipment or real property or One Million and 00/100
Dollars ($1,000,000.00) as to the aggregate of all such purchases in each case
in any one fiscal year;
(e) Indebtedness represented by unsecured short term trade
notes with suppliers provided that such Indebtedness shall not exceed Two
Hundred Fifty Thousand and 00/100 Dollars ($250,000.00) as to any one
transaction or One Million and 00/100 Dollars ($1,000,000.00) as to the
aggregate of all outstanding unsecured trade notes with suppliers;
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(f) Capitalized Lease Obligations other than those reflected
in Schedule 6.02 to this Agreement in amounts less than Two Hundred Fifty
Thousand and 00/100 Dollars ($250,000.00) for any single Capitalized Lease
Obligation and One Million and 00/100 Dollars ($1,000,000.00) as to the
aggregate of all such Capitalized Lease Obligations;
(g) Indebtedness resulting from loans and advances permitted
by Section 6.04 of this Agreement;
(h) Indebtedness under interest rate or currency protection
agreements, interest rate or currency futures, interest rate or currency
options, interest rate or currency swap or cap agreements or other interest rate
or currency hedge agreements incurred in the ordinary course of business,
provided that (i) such Indebtedness is incurred with a Bank as counterparty and
(ii) such Indebtedness shall not be entered into for speculative purposes; and
(i) Indebtedness which may exist from time to time under
promissory notes issued by the Borrower to TIC entered into as a result of the
borrowing by the Borrower of amounts paid by the Borrower or any Subsidiary to
TIC.
6.03 Guarantees and Contingent Liabilities. The Loan Parties
will not, and will not permit any Subsidiary to, at any time directly or
indirectly assume, guarantee, endorse or otherwise agree, become or remain
directly or contingently liable upon or with respect to any obligation or
liability of any other Person, except:
(a) those guarantees existing on the Closing Date and set
forth on Schedule 6.03 to this Agreement provided that, except for an increase
in rental payments under the leases identified on Schedule 6.03 in the ordinary
course of business, the amount of the obligations guaranteed thereby shall not
be increased;
(b) endorsements on negotiable or other instruments in any
amount for deposit or collection or similar transactions in the ordinary course
of their businesses;
(c) guarantees by the Borrower of obligations or liabilities
of any Subsidiary to any Bank or Mellon Europe Limited;
(d) the indemnity obligations of a Loan Party to its directors
and officers under the articles of incorporation of such Loan Party and to its
directors under indemnification agreements entered into between a Loan Party and
each of its directors;
(e) indemnities by a Loan Party or any Subsidiary arising from
or under contracts and agreements with unrelated Persons entered into by a Loan
Party or such Subsidiary in the ordinary course of business; and
(f) the Guaranties.
6.04 Loans and Investments; Certain Business Transactions. The
Loan Parties will not and will not permit any Subsidiary to, purchase, own,
invest in or otherwise acquire, directly or indirectly, any stock or other
securities of any Person, or all or substantially all of the assets of any
Person, or any business or division of any Person (whether in a single or series
of
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related transactions), or make or permit to exist any investment or capital
contribution to or acquire any interest whatsoever in any other Person or permit
to exist any loans or advances for such purposes except:
(a) loans and investments existing on the Closing Date and set
forth on Schedule 6.04 to this Agreement;
(b) additional loans to and investments in Subsidiaries that
are Guarantors;
(c) additional loans to and investments in Subsidiaries that
are not Guarantors; provided, however that the aggregate amount of all such
loans and investments subsequent to August 31, 1999 shall not exceed Seven
Million Five Hundred Thousand and 00/100 Dollars ($7,500,000.00);
(d) Acquisitions of Persons in businesses substantially
similar or substantially related to those in which the Borrower and its
Subsidiaries are engaged as of the Closing Date, provided, however, that (i) the
total consideration for any one such Acquisition shall not exceed Seven Million
Five Hundred Thousand and 00/100 Dollars ($7,500,000.00), (ii) the total
consideration for all such Acquisitions shall not, in any fiscal year, exceed
Twenty Five Million and 00/100 Dollars ($25,000,000) in the aggregate and (iii)
with respect to the Acquisition of stock or other equity interest, the acquired
Person promptly becomes a Guarantor if so required under Section 5.16;
(e) investments in direct obligations of the United States of
America or any agency thereof and in obligations guaranteed by the United States
of America or a Bank or other reputable financial institution, each of which is
organized under the laws of the United States;
(f) certificates of deposit issued by a Bank or Century
National Bank and investments in money market mutual funds (including the
Dreyfus Cash Management Plus B Fund, the Dreyfus Institutional Prime Money
Market Fund and other Dreyfus funds) or other money market accounts with a Bank
or Century National Bank; and
(g) other loans and investments after the Closing Date
reflected on the Consolidated balance sheet from time to time of an aggregate
amount not in excess of Two Million Dollars ($2,000,000.00); and
(h) acquisitions of the Borrower's common stock pursuant to
share repurchase programs authorized by the Borrower's Board of Directors.
6.05 Merger or Consolidation; Other Business Transactions. The
Loan Parties will not, and will not permit any Subsidiary to, form a partnership
or a joint venture or merge or consolidate with or into any other Person, or
agree to do any of the foregoing, except that a Loan Party may permit any
Subsidiary to merge or consolidate with or into a Loan Party and that any
Subsidiary that is not a Guarantor may merge or consolidate with any other
Subsidiary that is not a Guarantor.
6.06 Dispositions of Assets. The Loan Parties will not, and
will not permit any Subsidiary to, sell, convey, pledge, assign, lease, abandon
or otherwise transfer or dispose of,
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voluntarily or involuntarily any of its respective properties or assets,
tangible or intangible (including stock of Subsidiaries) except in the ordinary
course of business and except that a Loan Party may permit any Subsidiary to
transfer assets or stock to a Loan Party and that any Subsidiary that is not a
Guarantor may transfer assets or stock to a Subsidiary that is not a Guarantor.
6.07 Capital Expenditures. The Loan Parties will not, and will
not permit any Subsidiary to, make or commit to make, Capital Expenditures in
any fiscal year aggregating, for all Loan Parties and Subsidiaries, more than
Twenty Five Million and 00/100 Dollars ($25,000,000.00). For purposes of this
Section 6.07, amounts paid with respect to Acquisitions shall not be considered
as Capital Expenditures.
6.08 Negative Pledge. Except for Section 4.02(d) of the
Reimbursement Agreement, dated as of December 1, 1991, by and between the
Borrower and NCNB National Bank of North Carolina, the Loan Parties will not,
and will not permit any of their Subsidiaries to, enter into or suffer to exist
any agreement with any Person other than in connection with this Agreement,
which prohibits or limits the ability of a Loan Party or any Subsidiary to
create, incur, assume or suffer to exist any Lien upon or with respect to any
property or assets of any kind (real or personal, tangible or intangible) of a
Loan Party or any Subsidiary, whether now owned or hereafter acquired or
created.
6.09 Continuation of Business. Without the prior written
consent of the Agent, which consent shall not be unreasonably withheld or
delayed, the Loan Parties will not, and will not permit any Subsidiary to,
engage in any business not substantially similar or substantially related to
those conducted as of the Closing Date.
6.10 Margin Stock. No portion of the proceeds of any Loan
shall be used by any Loan Party for the purpose of purchasing or carrying margin
stock within the meaning of Regulation U in any manner that might cause the
borrowing or the application of such proceeds to violate any regulation or
requirement of the Board of Governors of the Federal Reserve System or to
violate the Securities Exchange Act of 1934.
6.11 Self-Dealing. The Loan Parties and their Subsidiaries
will not enter into or carry out any loan, advance or other transaction
(including, without limitation, purchasing property or services or selling
property or services) with any shareholder, director, officer or partner, except
that any such Person may render services to the Loan Party for compensation at
rates substantially similar to those generally paid by corporations or
partnerships engaged in the same or similar businesses for the same or similar
services.
6.12 Leases. The Loan Parties and their Subsidiaries will not
at any time enter into or suffer to remain in effect any agreement to lease, as
lessee, any real or personal property except leases of real and personal
property in the ordinary course of business.
6.13 Fiscal Year. The Loan Parties and their Subsidiaries will
not change their fiscal year.
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6.14 Year 2000. Based upon the Borrower's review of the
businesses and operations of the Borrower and its Subsidiaries as described in
Section 3.22 of this Agreement, the Borrower will not permit the Year 2000
Problem to have a Material Adverse Effect.
ARTICLE VII
DEFAULTS
7.01 Events of Default. An Event of Default means the
occurrence or existence of one or more of the following events or conditions
(whatever the reason for such Event of Default and whether voluntary,
involuntary or effected by operation of Law):
(a) The Borrower shall fail to pay principal on any of the
Notes within five (5) Business Days after the date principal on any of the Notes
is due; or
(b) The Borrower shall fail to pay interest on the Loans or
any fees payable pursuant to Article II of this Agreement within five (5)
Business Days after the date such interest or fees are due; or
(c) The Borrower shall fail to pay any other fee, or other
amount payable pursuant to this Agreement, the Notes or any of the other Loan
Documents when due and such failure shall continue for a period of five (5)
Business Days after notice thereof is given to the Borrower; or
(d) Any representation or warranty made by any Loan Party
under this Agreement, the Notes or any of the other Loan Documents or any
statement made by any Loan Party in any financial statement, certificate,
report, exhibit or document furnished by a Loan Party to the Agent or a Bank
pursuant to this Agreement or the other Loan Documents shall prove to have been
false or misleading in any material respect as of the time when made; or
(e) A Loan Party shall be in default in the performance or
observance of any covenant contained in Articles V and VI of this Agreement; or
(f) A Loan Party shall be in default in any material respect
in the performance or observance of any other covenant, agreement or duty under
this Agreement, the Notes or the other Loan Documents (not constituting an Event
of Default under any other provisions of this Section 7.01) and such default
shall continue for a period of thirty (30) days after notice thereof is given to
such Loan Party; or
(g) Any Loan Party or any Subsidiary shall (i) default (as
principal or guarantor or other surety) in any payment of principal of or
interest on any obligation (or set of related obligations) for borrowed money in
excess of $250,000, beyond any period of grace with respect to the payment or,
if an obligation for borrowed money (or set of related obligations) in excess of
$250,000 is or are payable or repayable on demand, such Loan Party or such
Subsidiary fails to pay or repay such obligation or obligations when demanded,
or (ii) default in the observance of any other covenant, term or condition
contained in any agreement or instrument by which an obligation for borrowed
money (or set of related obligations) in excess of $250,000 is or are created,
secured or evidenced, if the effect of such default is to cause all or
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part of such obligation or obligations to become due before its or their
otherwise stated maturity; or
(h) One or more judgments for the payment of money shall have
been entered against a Loan Party or any Subsidiary, the aggregate amount of
which is in excess of $1,000,000 for all such judgments with respect to all Loan
Parties and Subsidiaries, and the same shall remain undischarged or unstayed for
a period of thirty (30) consecutive days; or
(i) One or more writs or warrants of attachment, garnishment,
execution, distraint or similar process shall have been issued against a Loan
Party or any Subsidiary or any of their respective properties involving an
aggregate amount of money which is in excess of $1,000,000 for all such writs or
warrants with respect to all Loan Parties and Subsidiaries, and the same shall
remain undischarged or unstayed for a period of thirty (30) consecutive days; or
(j) The Majority Banks have determined in good faith that a
Material Adverse Change has occurred or that the prospect of payment or
performance of any covenant, agreement or duty under this Agreement, the Notes
or the other Loan Documents is impaired or that the Banks are insecure; or
(k) A Change of Control shall occur; or
(l) (i) A Termination Event with respect to a Plan shall
occur, (ii) any Person shall engage in any prohibited transaction involving any
Plan, (iii) an accumulated funding deficiency, whether or not waived, shall
exist with respect to any Plan, (iv) any Loan Party or any ERISA Affiliate shall
be in "Default" (as defined in Section 4219(c)(5) of ERISA with respect to
payments due to a multi-employer Plan resulting from such Loan Party's or any
ERISA affiliate's, complete or partial withdrawal (as described in Section 4203
or 4205 of ERISA) from such Plan, or (v) any other event or condition shall
occur or exist with respect to a single employer Plan, except that no such event
or condition shall constitute an Event of Default if it, together with all other
events or conditions at the time existing, would not subject a Loan Party or any
of its Subsidiaries to any tax, penalty, debt or liability which, alone or in
the aggregate, would have a Material Adverse Effect; or
(m) A proceeding shall be instituted in respect of a Loan
Party or any Subsidiary:
(i) seeking to have an order for relief entered in
respect of such Loan Party or any Subsidiary, or seeking a
declaration or entailing a finding that such Loan Party or any
Subsidiary is insolvent or a similar declaration or finding,
or seeking dissolution, winding-up, charter revocation or
forfeiture, liquidation, reorganization, arrangement,
adjustment, composition or other similar relief with respect
to such Loan Party or any Subsidiary, their assets or debts
under any law relating to bankruptcy, insolvency, relief of
debtors or protection of creditors, termination of legal
entities or any other similar law now or in the future which
shall not have been dismissed or stayed within sixty (60) days
after such proceedings were instituted; or
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(ii) seeking appointment of a receiver, trustee,
custodian, liquidator, assignee, sequestrator or other similar
official for a Loan Party or any Subsidiary or for all or any
substantial part of their property which shall not have been
dismissed or stayed within sixty (60) days after such
proceedings were instituted; or
(n) A Loan Party, Tuscarora Limited or any Subsidiary
organized outside of the United States that would otherwise be required to
execute and deliver a Guaranty pursuant to Section 5.16 if it were organized
within the United States shall become insolvent, shall become generally unable
to pay their debts as they become due, shall voluntarily suspend transaction of
their businesses, shall make a general assignment for the benefit of creditors,
shall institute a proceeding described in Section 7.01(m)(i) of this Agreement
or shall consent to any order for relief, declaration, finding or relief
described in Section 7.01(m)(i) of this Agreement, shall institute a proceeding
described in Section 7.01(m)(ii) of this Agreement or shall consent to the
appointment or to the taking of possession by any such official of all or any
substantial part of their property whether or not any proceeding is instituted,
dissolve, wind-up or liquidate themselves or any substantial part of their
property, or shall take any action in furtherance of any of the foregoing.
7.02 Consequences of an Event of Default.
(a) If an Event of Default specified in subsections (a)
through (l) of Section 7.01 of this Agreement occurs, the Agent and the Banks
will be under no further obligation to make Loans or issue Letters of Credit and
the Agent may, at the option of the Majority Banks (i) demand the unpaid
principal amount of the Notes, interest accrued on the unpaid principal amount
and all other amounts owing by the Borrower under this Agreement, the Notes and
the other Loan Documents to be immediately due and payable without presentment,
demand, protest or further notice of any kind, all of which are expressly
waived, and an action for any amounts due shall accrue immediately and (ii)
require the Borrower to, and the Borrower shall thereupon, deposit in a
non-interest bearing account with the Agent, as cash collateral for its
obligations under the Loan Documents, an amount equal to the maximum amount
currently or at any time thereafter available to be drawn on of all outstanding
Letters of Credit, and the Borrower hereby pledges to the Agent and the Banks,
and grants to the Agent and the Banks a security interest in, all such cash as
security for such obligations of the Borrower.
(b) If an Event of Default specified in subsections (m) or (n)
of Section 7.01 of this Agreement occurs and continues or exists, the Banks will
be under no further obligation to make Loans or issue Letters of Credit and the
unpaid principal amount of the Notes, interest accrued on the unpaid principal
amount of the Notes and all other amounts owing by the Borrower under this
Agreement, the Notes and the other Loan Documents shall automatically become
immediately due and payable without presentment, demand, protest or notice of
any kind, all of which are expressly waived, and an action for any amounts due
shall accrue immediately.
7.03 Set-Off. If the unpaid principal amount of the Notes,
interest accrued on the unpaid principal amount of the Notes or other amount
owing by the Borrowers under this Agreement, the Notes or the other Loan
Documents shall have become due and payable (at maturity, by acceleration or
otherwise), each of the Banks, the holder of any participation in the
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Loans and any assignee of a Bank will each have the right, in addition to all
other rights and remedies available to it, without notice to the Borrower, to
set-off against and to appropriate and apply to such due and payable amounts any
debt owing to, and any other funds held in any manner for the account of, the
Borrower by such Bank, by such participant or by such assignee including,
without limitation, all funds in all deposit accounts (whether time or demand,
general or special, provisionally credited or finally credited, or otherwise)
now or in the future maintained by the Borrower with such Bank, such participant
or such assignee. The Borrower consents to and confirms the foregoing
arrangements and confirms the Banks' rights, such participant's rights and such
assignee's rights of banker's lien and set-off. Nothing in this Agreement will
be deemed a waiver or prohibition of or restriction on the Banks' rights, such
participant's rights or any such assignee's rights of banker's lien or set-off.
7.04 Equalization. Each Bank agrees with the other Bank or
Banks that if it, at any time, shall obtain any Advantage over the other Banks
or any thereof in respect of the Indebtedness of the Borrower to the Banks, it
shall purchase from the other Banks, for cash and at par, such additional
participation in the Indebtedness of the Borrower to the Banks as shall be
necessary to nullify the Advantage. If any such Advantage resulting in the
purchase of an additional participation as aforesaid shall be recovered in whole
or in part from the Bank receiving the Advantage, each such purchase shall be
rescinded and the purchase price restored (but without interest unless the Bank
receiving the Advantage is required to pay interest on the Advantage to the
Person recovering the Advantage from such Bank) ratably to the extent of the
recovery. Each Bank agrees with the other Banks that if it, at any time, shall
receive any payment for or on behalf of the Borrower on any Indebtedness of the
Borrower to that Bank by reason of offset of any deposit or other Indebtedness
of the Borrower to the Banks, it will apply such payment first to any and all
Indebtedness of the Borrower to the Banks pursuant to this Agreement (including,
without limitation, any participation purchased or to be purchased pursuant to
this Section or any other Section of this Agreement). Borrower agrees that any
Bank so purchasing a participation from the other Banks or any thereof pursuant
to this Section may exercise all of its rights of payment (including the right
of setoff) with respect to such participation as fully as if such Bank was a
direct creditor of the Borrower in the amount of such participation.
7.05 Other Remedies. The remedies in this Article VII are in
addition to, not in limitation of, any other right, power, privilege, or remedy,
either in Law, in equity, or otherwise, to which the Banks may be entitled. The
Agent shall exercise the rights under this Article VII and all other collection
efforts on behalf of the Banks and no Bank shall act independently with respect
thereto, except as otherwise specifically set forth in this Agreement.
ARTICLE VIII
THE AGENT; ASSIGNMENTS; PARTICIPATIONS
8.01 Appointment and Authorization; No Liability. The Banks
authorize Mellon and Mellon hereby agrees to act as agent for the Banks in
respect of this Agreement and the other Loan Documents upon the terms and
conditions set forth in this Agreement. Each Bank hereby irrevocably appoints
and authorizes Agent to take such action as agent on its behalf and to exercise
such powers hereunder as are delegated to Agent by the terms of this Agreement
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and any of the other Loan Documents, together with such powers as are reasonably
incidental thereto; provided that no duties or responsibilities not expressly
assumed herein or therein shall be implied to have been assumed by the Agent.
The relationship between the Agent and the Banks is and shall be that of agent
and principal only, and nothing contained in this Agreement or any of the other
Loan Documents shall be construed to constitute the Agent as a trustee for any
Bank. Neither Agent nor any of its shareholders, directors, officers, attorneys
or employees nor any other Person assisting them in their duties nor any agent
or employee thereof, shall (a) be liable for any waiver, consent or approval
given or action taken or omitted to be taken by it or them hereunder or under
any of the Loan Documents or in connection herewith or therewith or be
responsible for the consequences of any oversight or error of judgment
whatsoever, or (b) be liable to any Loan Party for consequential damages
resulting from any breach of contract, tort or other wrong in connection with
the negotiation, documentation, administration or collection of the Loans or any
of the Loan Documents, except with respect to (a) and (b) hereof, to the extent
of its, or their, willful misconduct as determined by a court of competent
jurisdiction.
8.02 Employees and Agents. The Agent may exercise its powers
and execute its duties by or through employees or agents and shall be entitled
to take, and to rely on, advice of counsel concerning all matters pertaining to
its rights and duties under this Agreement and the other Loan Documents and
shall not be liable for action taken or suffered in good faith by it in
accordance with the opinion of such counsel. The Agent may utilize the services
of such Persons as the Agent in its sole discretion may determine, and all
reasonable fees and expenses of any such Persons shall be paid by the Borrower
and if not paid by the Borrower shall be paid by the Banks based upon their
respective Commitment Percentages.
8.03 No Representations; Bank's Independent Investigation. The
Agent shall not be responsible for the execution or validity or enforceability
of this Agreement, the Notes, any of the other Loan Documents or any instrument
at any time constituting, or intended to constitute, collateral security for the
Notes, or for the value of any such collateral security or for the validity,
enforceability or collectibility of any such amounts owing with respect to the
Notes, or for any recitals or statements, warranties or representations made
herein or in any of the other Loan Documents or in any certificate or instrument
hereafter furnished to it by or on behalf of the Borrower, or be bound to
ascertain or inquire as to the performance or observance of any of the terms,
conditions, covenants or agreements herein or in any instrument at any time
constituting, or intended to constitute, collateral security for the Notes. The
Agent shall not be bound to ascertain whether any notice, consent, waiver or
request delivered to it by the Borrower or any holder of any of the Notes shall
have been duly authorized or is true, accurate and complete. The Agent has not
made nor does it now make any representations or warranties, express or implied,
nor does it assume any liability to the Banks with respect to the
creditworthiness, financial condition or any other condition of the Loan Parties
or with respect to the statements contained in any information memorandum
furnished in connection herewith or in any other oral or written communication
between Agent and such Bank. Each Bank acknowledges that it has, independently
without reliance upon the Agent or any other Bank, and based upon such
information and documents as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and agrees that the Agent has
no duty or responsibility, either initially or on a continuing basis, to provide
any Bank with any credit or other information with respect thereto (other than
such notices as may be expressly required to be given by Agent to the Banks
hereunder).
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8.04 Payments to Banks.
(a) As between the Agent and the Borrower, a payment by the
Borrower to the Agent hereunder or any of the other Loan Documents for the
account of any Bank shall constitute a payment to such Bank. The Agent agrees to
distribute to each Bank such Bank's Pro Rata Share of payments received by the
Agent for the account of the Banks in immediately available funds on the
Business Day that such payments were received by the Agent except as otherwise
expressly provided herein or in any of the other Loan Documents.
(b) If in the opinion of the Agent the distribution of any
amount received by it in such capacity hereunder, under the Notes or under any
of the other Loan Documents, could reasonably be expected to involve it in
liability, it may refrain from making distribution until its right to make
distribution shall have been adjudicated by a court of competent jurisdiction.
If a court of competent jurisdiction shall adjudge that any amount received and
distributed by the Agent is to be repaid, each Person to whom any such
distribution shall have been made shall either repay to the Agent its
proportionate share of the amount so adjudged to be repaid or shall pay over the
same in such manner and to such Persons as shall be determined by such court.
(c) Notwithstanding anything to the contrary contained in this
Agreement or any of the other Loan Documents, any Bank that fails (i) to make
available to the Agent its Pro Rata Share of any Loan that the Agent made on its
behalf or (ii) to comply with the provisions of Section 7.04 with respect to it
obtaining an Advantage, in each case as, when and to the full extent required by
the provisions of this Agreement, shall be deemed delinquent and shall not be
entitled to vote on any matters until such time as such delinquency is cured.
Such Bank shall be deemed to have assigned any and all payments due it from the
Borrower, whether on account of outstanding Loans, interest, fees or otherwise,
to the remaining Banks for application to, and reduction of, their respective
Pro Rata Shares of all outstanding Loans. Such Bank hereby authorizes the Agent
to distribute such payments to the other Banks in proportion to their respective
Pro Rata Shares of all outstanding Loans. Such Bank shall be deemed to have
satisfied in full a delinquency when and if the Bank's respective Pro Rata
Shares of all outstanding Loans have returned to those in effect immediately
prior to such delinquency and without giving effect to the nonpayment causing
such delinquency.
8.05 Note Holders. Agent may treat the payee of any Note as
the holder thereof until written notice of transfer shall have been filed with
it signed by such payee and in form satisfactory to Agent.
8.06 Documents. Agent shall not be under any duty to examine
into or pass upon the validity, effectiveness, genuineness or value of any Loan
Documents or any other document furnished pursuant hereto or in connection
herewith or the value of any collateral obtained hereunder, if any, and Agent
shall be entitled to assume that the same are valid, effective and genuine and
what they purport to be.
8.07 Agents and Affiliates. With respect to the Loans, Agent
shall have the same rights and powers hereunder as any other Bank and may
exercise the same as though it were not the agent, and Agent and its affiliates
may accept deposits from, lend money to and
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generally engage in any kind of business with any of the Loan Parties or any
affiliate of any of the Loan Parties.
8.08 Indemnification of Agent. The Banks ratably agree to
indemnify and hold harmless the Agent from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by or asserted against Agent in its capacity as agent in any way
relating to or arising out of this Agreement or any Loan Document or any action
taken or omitted by Agent with respect to this Agreement or any Loan Document,
provided that no Bank shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including attorney fees) or disbursements resulting from Agent's gross
negligence or willful misconduct as determined by a court of competent
jurisdiction. The obligations of the Banks under this Section 8.08 shall survive
the payment in full of all amounts due pursuant to this Agreement or any other
Loan Document and the termination of this Agreement.
8.09 Successor Agent. Agent may resign as agent hereunder by
giving not fewer than thirty (30) days' prior written notice to Borrower and the
Banks. If Agent shall resign under this Agreement, then either (a) the Majority
Banks shall appoint from among the Banks a successor agent for the Banks, which
Bank shall be reasonably acceptable to the Borrower, or (b) if a successor agent
shall not be so appointed and approved within the thirty (30) day period
following Agent's notice to the Banks of its resignation, then Agent shall
appoint a successor agent, which Bank shall be reasonably acceptable to the
Borrower, who shall serve as agent until such time as the Majority Banks appoint
a successor agent pursuant to clause (a). Upon its appointment, such successor
agent shall succeed to the rights, powers and duties as agent, and the term
"Agent" shall mean such successor effective upon its appointment, and the former
agent's rights, powers and duties as agent shall be terminated without any other
or further act or deed on the part of such former agent or any of the parties to
this Agreement.
8.10 Knowledge of Default. It is expressly understood and
agreed that Agent shall be entitled to assume that no Event of Default or
Potential Default has occurred and is continuing, unless Agent has been notified
by a Bank in writing that such Bank considers that an Event of Default or
Potential Default has occurred and is continuing and specifying the nature
thereof.
8.11 Action by Agent. So long as Agent shall be entitled,
pursuant to Section 8.10 hereof, to assume that no Event of Default or Potential
Default shall have occurred and be continuing, Agent shall be entitled to use
its discretion with respect to exercising or refraining from exercising any
rights which may be vested in it by, or with respect to taking or refraining
from taking any action or actions which it may be able to take under or in
respect of, this Agreement. Agent shall incur no liability under or in respect
of this Agreement by acting upon any notice, certificate, warranty or other
paper or instrument believed by it to be genuine or authentic or to be signed by
the proper party or parties, or with respect to anything which it may do or
refrain from doing in the reasonable exercise of its judgment.
8.12 Notification of Potential Defaults and Events of
Defaults. Each Bank hereby agrees that, upon learning of the existence of a
Potential Default or Event of Default, it
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shall promptly notify the Agent thereof. In the event that Agent receives notice
of an Event of Default or Potential Default, Agent shall promptly notify all of
the Banks and shall take such action and assert such rights under this Agreement
as the Majority Banks shall direct and Agent shall promptly inform the Banks in
writing of the action taken. Agent may take such action and assert such rights
as it deems to be advisable, in its discretion, for the protection of the
interests of the holders of the Notes.
8.13 Declaration of Invalidation. Each Bank agrees that, to
the extent that any payments received by any Bank from the Borrower or otherwise
on account of the Loans are subsequently invalidated, declared to be fraudulent
or preferential, set aside or judicially required to be repaid to a
debtor-in-possession, trustee, receivor, custodian or any other Person in
connection with any proceeding referred to in Section 7.01(m) hereof or any
similar cause of action ("Preference"), then, to the extent of such Preference,
each Bank shall, upon demand, reimburse the Bank subject to such Preference in
the amount necessary to cause each Bank to be affected by such Preference in
proportion to its Pro Rata Share of the Loans.
8.14 Pro Rata Portion, Pari Passu and Equal. The Pro Rata
Share of each Bank in the Loans and all collateral therefor shall be pari passu
and equal with the Pro Rata Share of each other Bank and no Bank shall have
priority over the other.
8.15 Cooperation. Each Bank agrees that it shall cooperate in
good faith and in a commercially reasonable manner with each other Bank and take
whatever reasonable actions at its own expense are necessary to implement
decisions made in accordance with this Agreement and with each of the Loan
Documents relating thereto.
8.16 Obligations Several. The obligations of the Banks
hereunder are several and not joint. Nothing contained in this Agreement, and no
action taken by the Agent or the Banks pursuant hereto, shall be deemed to
constitute the Banks' a partnership, association, joint venture or other entity.
No default by any Bank hereunder shall excuse any Bank from any obligation under
this Agreement, but no Bank shall have or acquire any additional obligation of
any kind by reason of such default. The relationship between the Loan Parties
and the Banks with respect to the Loan Documents and any other document executed
in connection therewith is and shall be solely that of debtor and creditors,
respectively, and neither Agent nor any Bank has any fiduciary obligation toward
the Loan Parties with respect to any such documents or the transactions
contemplated thereby.
8.17 Bank Assignments/Participations.
A. Assignment/Transfer of Commitments.
Each Bank shall have the right at any time or times to assign
or transfer to another Eligible Assignee, without recourse, all or a portion of
(a) that Bank's Commitment, (b) all Loans made by that Bank, (c) that Bank's
Notes, and (d) that Bank's participations in Letters of Credit and that Bank's
participation purchased pursuant to Section 7.04; provided, however, in each
such case, that the transferor and the transferee shall have complied with the
following requirements:
(i) Prior Consent of Agent. No transfer may be
consummated pursuant to this Section 8.17 (including, without limitation, a
transfer from one Bank to another
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Bank) without the prior written consent of the Agent (other than a transfer by
any Bank to any Affiliate of such Bank), which consent of Agent shall not be
unreasonably withheld or delayed.
(ii) Prior Consent of Borrower. No transfer may be
consummated pursuant to this Section 8.17 (including, without limitation, a
transfer from one Bank to another Bank) without the prior written consent of the
Borrower (other than a transfer by any Bank to any Affiliate of such Bank or a
transfer occurring during the existence of an Event of Default or Potential
Default), which consent of the Borrower shall not be unreasonably withheld or
delayed.
(iii) Minimum Amount. No transfer may be consummated
pursuant to this Section 8.17 (including, without limitation, a transfer from
one Bank to another Bank other than a transfer by any Bank to any Affiliate of
such Bank) in an aggregate amount less than (a) Five Million and 00/100 Dollars
($5,000,000.00) or (b) if such Bank's Commitment is at any time less than Five
Million and 00/100 Dollars ($5,000,000.00), the entire amount of such Bank's
Commitment.
(iv) Agreement; Transfer Fee. Unless the transfer
shall be to an affiliate of the transferor or the transfer shall be due to
merger of the transferor or for regulatory purposes, the transferor (A) shall
remit to Agent, for its own account, an administrative fee of Three Thousand
Five Hundred and 00/100 Dollars ($3,500.00) and (B) shall cause the transferee
to execute and deliver to Borrower, Agent and each Bank (1) an Assignment
Agreement, in the form of Exhibit E attached hereto and made a part hereof (an
"Assignment Agreement") together with the consents and releases and the
Administrative Questionnaire referenced therein, and (2) such additional
amendments, assurances and other writings as Agent may reasonably require.
(v) Notes. Upon its receipt of an Assignment
Agreement executed by the parties to such Assignment, together with each Note
subject to such Assignment Agreement, the Agent shall (a) record the information
contained therein in the Register (as hereinafter defined), and (b) give prompt
notice thereof to the Borrower and the other Banks. Within five (5) Business
Days after receipt of such notice, the Borrower, at its own expense, shall
execute and deliver (A) to Agent, the transferor and the transferee, any consent
or release (of all or a portion of the obligations of the transferor) to be
delivered in connection with the Assignment Agreement, and (B) to the
transferee, the appropriate Notes. Upon delivery of the new Notes, the
transferor's Notes shall be returned to Borrower marked "replaced".
(vi) Parties. Upon satisfaction of the requirements
of this Section 8.17, including the payment of the fee and the delivery of the
documents set forth in Section 8.17 (iv), (A) the transferee shall become and
thereafter be deemed to be a "Bank" for the purposes of this Agreement, and (B)
if the transferor transfers all of its interest, the transferor shall cease to
be and thereafter shall no longer be deemed to be a "Bank" and shall have no
further rights or obligations under or in connection herewith, and (3) the
signature pages hereto and Schedule 1 hereto shall be automatically amended,
without further action, to reflect the result of any such transfer.
(vii) The Register. Agent shall maintain a copy of
each Assignment Agreement delivered to it and a register or similar list (the
"Register") for the recordation of the names and addresses of the Banks and the
Commitment Percentages of, and principal amount of
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the Loans owing to, each Bank from time to time. The entries in the Register
shall be conclusive, in the absence of manifest error, with respect to such
information, and Borrower, Agent and the Banks may treat each financial
institution whose name is recorded in the Register as the owner of the Loan
recorded therein for all purposes of this Agreement. The Register shall be
available for inspection by Borrower or any Bank at any reasonable time and from
time to time upon reasonable prior notice.
(viii) Certain Representations and Warranties;
Limitations; Covenants. By executing and delivering an Assignment Agreement, the
parties to the Assignment thereunder confirm to and agree with each other and
the other parties hereto as follows:
(a) Other than the representation and
warranty that it is the legal and beneficial owner of the interest being
assigned thereby free and clear of any adverse claim, the assigning Bank makes
no representation and warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement, the other Loan Documents or any other
instrument or document furnished pursuant hereto;
(b) The assigning Bank makes no
representation or warranty and assumes no responsibility of the financial
condition of the Borrower or any other Person primarily or secondarily liable in
respect of any Indebtedness of the Borrower to the Banks or the performance or
observance by the Borrowers or any other Person primarily or secondarily liable
in respect of any of the Indebtedness of the Borrower to the Banks or any of
their obligations under this Agreement or any of the other Loan Documents or any
other instrument or document furnished pursuant hereto or thereto;
(c) Such assignee confirms that it has
received a copy of this Agreement, together with copies of the most recent
financial statements referred to in Section 5.01 and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into the Assignment Agreement;
(d) Such assignee will, independently and
without reliance upon the assigning Bank, the Agent or any other Bank and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement;
(e) Such assignee represents and warrants
that it is an Eligible Assignee;
(f) Such assignee appoints and authorizes
the Agent to take such action as Agent on its behalf and to exercise such powers
under this Agreement and the other Loan Documents as are delegated to the Agent
by the terms hereof or thereof, together with such powers as are reasonably
incidental thereto;
(g) Such assignee agrees that it will
perform in accordance with their terms all of the obligations that by the terms
of this Agreement are required to be performed by it as a Bank; and
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(h) Such assignee represents and warrants
that it is legally authorized to enter into such Assignment Agreement.
B. Participations.
Each Bank shall have the right at any time or times, without
the consent of any other party, to sell one or more participations or
sub-participations to one or more financial institutions, in all or any part of
(a) that Bank's Commitment, (b) that Bank's Commitment Percentage, (c) any Loan
made by that Bank, (d) any Note delivered to that Bank pursuant to this
Agreement, (e) any Letter of Credit in which that Bank participates and (f) that
Bank's participations, if any, purchased pursuant to Section 7.04 or this
Section 8.17(B).
(i) Rights Reserved. In the event any Bank shall sell any
participation or sub-participation, that Bank shall, as between itself and the
purchaser, retain all of its rights (including, without limitation, rights to
enforce against Borrower the Loan Documents and any and all other documents in
connection therewith) and duties pursuant to the Loan Documents and any and all
other documents in connection therewith, including, without limitation, that
Bank's right to approve any waiver, consent or amendment pursuant to Section
9.02; provided, however, that (a) any such participation shall be in a minimum
amount of $5,000,000 and (b) the holder of any such participation shall not be
entitled to require such Bank to take any action hereunder except action
directly effecting (i) any reduction in the principal amount or an interest rate
on any Loan in which such holder participates; (ii) any extension of the Expiry
Date or the date fixed for any payment of interest or principal payable with
respect to any Loan in which such holder participates; and (iii) any reduction
in the amount of any fees payable hereunder with respect to any Loan in which
such holder participates. The Borrower hereby acknowledges and agrees that the
participant under each participation shall for purposes of subsections 2.15(b),
2.16, 2.17, 7.03 and 8.18 be considered to be a "Bank". Except as otherwise set
forth herein, no participant or sub-participant shall have any rights or
obligations hereunder, and Borrower and Agent shall continue to deal with the
Banks as if no participation or sub-participation had occurred. Agent shall
continue to distribute payments as if no participation or sub-participation had
been sold.
(ii) No Delegation. No participation or sub-participation
shall operate as a delegation of any duty of the seller thereof. Under no
circumstances shall any participation or sub-participation be deemed a novation
in respect of all or any part of the seller's obligations pursuant to this
Agreement.
C. Pledge by Bank. Notwithstanding the provisions of this
Section 8.17, any Bank may at any time pledge all or any portion of its interest
and rights under this Agreement (including all or any portion of its Notes) to
any of the federal reserve banks organized under Section 4 of the Federal
Reserve Act, 12 U.S.C. Section 341. No such pledge or the enforcement thereof
shall release the pledgor Bank from its obligations hereunder or under any of
the other Loan Documents.
8.18 Indemnity. In addition to the payment of expenses
pursuant to Section 9.05 hereof, whether or not the transactions contemplated
hereby shall be consummated, Borrower agrees to indemnify, pay and hold Agent
and each Bank, and the officers, directors,
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employees, agents, consultants, auditors, affiliates and attorneys of Agent and
each Bank (collectively called the "Indemnitees"), harmless from and against any
and all liabilities, obligations, losses, damages, penalties, actions, judgment,
suits, claims, costs, expenses and disbursements of any kind or nature
whatsoever (including the reasonable fees and disbursements of counsel for such
Indemnitees 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 be imposed on, incurred by, or asserted
against that Indemnitee, in any manner relating to or arising out of this
Agreement or the other Loan Documents, the consummation of the transactions
contemplated by this Agreement, the statements contained in the commitment
letters, if any, delivered by Agent or any Bank, Agent's and each Bank's
agreement to make the Loans hereunder, the use or intended use of the proceeds
of any of the Loans or the exercise of any right or remedy hereunder or under
the other Loan Documents (the "Indemnified Liabilities"); provided, however,
that Borrower shall have no obligation to an Indemnitee hereunder with respect
to Indemnified Liabilities arising from the gross negligence or willful
misconduct of that Indemnitee as determined by a court of competent
jurisdiction.
ARTICLE IX
MISCELLANEOUS
9.01 Business Days. Except as otherwise provided in this
Agreement, whenever any payment or action to be made or taken under this
Agreement, or under the Notes or under any of the other Loan Documents is stated
to be due on a day which is not a Business Day, such payment or action will be
made or taken on the next following Business Day and such extension of time will
be included in computing interest or fees, if any, in connection with such
payment or action.
9.02 Amendments and Waivers. No amendment, modification,
termination, or waiver of any provision of this Agreement or any Loan Document,
nor consent to any variance therefrom, shall be effective unless the same shall
be in writing and signed by the Majority Banks and the Borrower and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose which given. Notwithstanding anything contained herein to the
contrary, unanimous consent of the Banks shall be required with respect to (a)
any increase in the Commitments hereunder, (b) the extension of the Revolving
Credit Expiry Date or the Term Loan Expiry Date, the payment date of interest
hereunder, or the payment date of commitment or other fees or amounts payable
hereunder, (c) any reduction in the rate of interest on the Notes, or in any
amount of principal or interest due on any Note, or in the payment of commitment
or other fees hereunder or any change in the manner of pro rata application of
any payments made by Borrower to the Banks hereunder, (d) any change in any
percentage voting requirement, voting rights or the definition of Majority Banks
in this Agreement, or (e) any amendment to this Section 9.02 or Section 7.04
hereof. Notice of amendments or consents ratified by a Bank hereunder shall be
immediately forwarded by the Agent to all Banks. Each Bank or other holder of a
Note shall be bound by any amendment, waiver or consent obtained as authorized
by this Section, regardless of its failure to agree thereto. In the case of any
such waiver or consent relating to any provision of this Agreement, any Event of
Default or Potential Default so waived or consented to will be deemed to be
cured and not continuing, but no such waiver or consent
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will extend to any other or subsequent Event of Default or Potential Default or
impair any right consequent to any other or subsequent Event of Default or
Potential Default or impair any right consequent thereto.
9.03 No Implied Waiver: Cumulative Remedies. No course of
dealing and no delay or failure of the Agent or the Banks in exercising any
right, power or privilege under this Agreement, the Notes or any other Loan
Document will affect any other or future exercise of any such right, power or
privilege or exercise of any other right, power or privilege except as and to
the extent that the assertion of any such right, power or privilege shall be
barred by an applicable statute of limitations; 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 of such right, power or privilege or of any other right, power
or privilege. The rights and remedies of the Agent and the Banks under this
Agreement, the Notes or any other Loan Document are cumulative and not exclusive
of any rights or remedies which the Agent and the Banks would otherwise have.
9.04 Notices. All notices, requests, demands, directions and
other communications (collectively notices) under the provisions of this
Agreement or the Notes must be in writing (including telexed or telecopied
communication) unless otherwise expressly permitted under this Agreement and
must be sent by first-class or first-class express mail, private overnight or
next Business Day courier or by telecopy with confirmation in writing mailed
first class, in all cases with charges prepaid, and any such properly given
notice will be effective when received. All notices will be sent to the
applicable party at the addresses stated below or in accordance with the last
unrevoked written direction from such party to the other parties.
If to Borrower: Brian C. Mullins
Senior Vice President, Chief
Financial Officer and Treasurer
Tuscarora Incorporated
800 Fifth Avenue
New Brighton, PA 15066
Telecopier: (412) 843-1722
and a copy to: H. Kennedy Linge, Esquire
Reed Smith Shaw & McClay
435 Sixth Avenue
Pittsburgh, PA 15219
Telecopier: (412) 288-3063
If to Agent: Dwayne R. Finney
Vice President and Relationship Manager
Mellon Bank, N.A.
Two Mellon Bank Center, Room 270
Pittsburgh, PA 15259-0001
Telecopier: (412) 234-9010
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and a copy to: Jeffrey J. Conn, Esquire
Thorp, Reed & Armstrong, LLP
One Riverfront Center
Pittsburgh, PA 15222
Telecopier: (412) 394-2555
If to Banks: At such Bank's address set forth
on Schedule 1 attached hereto and
made a part hereof.
9.05 Expenses; Taxes; Attorneys Fees. The Borrower agrees to
pay or cause to be paid and to save the Agent and the Banks harmless against
liability for the payment of all reasonable out-of-pocket expenses, including,
but not limited to reasonable fees and expenses of counsel and paralegals for
the Agent and the Banks, incurred by the Agent and the Banks from time to time
(i) arising in connection with the preparation, execution, delivery and
performance of this Agreement, the Notes and the other Loan Documents, (ii)
relating to any requested amendments, waivers or consents to this Agreement, the
Notes or any of the other Loan Documents and (iii) arising in connection with
the Agent and the Banks' enforcement or preservation of rights under this
Agreement, the Notes or any of the other Loan Documents, including but not
limited to such reasonable expenses as may be incurred by the Bank in the
collection of the outstanding principal amount of the Loans. The Borrower agrees
to pay all stamp, document, transfer, recording or filing taxes or fees and
similar impositions now or in the future reasonably determined by the Agent and
the Banks to be payable in connection with this Agreement, the Notes or any
other Loan Document. The Borrower agrees to save the Agent and the Banks
harmless from and against any and all present or future claims, liabilities or
losses with respect to or resulting from any omission to pay or delay in paying
any such taxes, fees or impositions. In the event of a determination adverse to
the Borrower of any action at law or suit in equity in relation to this
Agreement, the Notes or the other Loan Documents, the Borrower will pay, in
addition to all other sums which the Borrower may be required to pay, a
reasonable sum for attorneys and paralegals fees incurred by the Agent and the
Banks or the holder of the Notes in connection with such action or suit. All
payments due from the Borrower under this Section will be added to and become
part of the Loans until paid in full.
9.06 Severability. The provisions of this Agreement are
intended to be severable. If any provision of this Agreement is held invalid or
unenforceable in whole or in part in any jurisdiction, the provision will, as to
such jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without in any manner affecting the validity or enforceability
of the provision in any other jurisdiction or the remaining provisions of this
Agreement in any jurisdiction.
9.07 Governing Law: Consent to Jurisdiction. This Agreement
will be deemed to be a contract under the laws of the Commonwealth of
Pennsylvania and for all purposes will be governed by and construed and enforced
in accordance with the substantive laws, and not the laws of conflicts, of said
Commonwealth. The Borrower consents to the exclusive jurisdiction and venue of
the federal and state courts located in Allegheny County, Pennsylvania, in any
action on, relating to or mentioning this Agreement, the Notes, the other Loan
Documents, or any one or more of them.
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9.08 Prior Understandings. This Agreement, the Notes and the
other Loan Documents supersede all prior understandings, communications and
agreements, whether written or oral, among the parties relating to the
transactions provided for in this Agreement, the Notes and the other Loan
Documents.
9.09 Duration; Survival. All representations and warranties of
the Borrower contained in this Agreement or made in connection with this
Agreement or any of the other Loan Documents shall survive the making of and
will not be waived by the execution and delivery of this Agreement, the Notes or
the other Loan Documents, by any investigation by the Agent or a Bank, or the
making of any Loan. Notwithstanding termination of this Agreement or an Event of
Default, all covenants and agreements of the Borrower will continue in full
force and effect from and after the date of this Agreement so long as the
Borrower may borrow under this Agreement and until payment in full of the Notes,
interest thereon, and all fees and other obligations of the Borrower under this
Agreement or the Notes. Without limitation, it is understood that all
obligations of the Borrower to make payments to or indemnify the Agent and/or
the Banks will survive the payment in full of the Notes and satisfaction and
termination of all other obligations of the Borrower under this Agreement, the
Notes and the other Loan Documents.
9.10 Term of Agreement. This Agreement will terminate when all
Indebtedness of the Borrower to Banks including, without limitation, the Loans
and interest on the Loans is paid in full, and the Borrower has no right to
borrow under this Agreement and the Banks have no obligation to make Loans under
this Agreement.
9.11 Counterparts. This Agreement may be executed in any
number of counterparts and by the different parties to this Agreement on
separate counterparts each of which, when so executed, will be deemed an
original, but all such counterparts will constitute but one and the same
instrument.
9.12 Successors and Assigns. This Agreement will be binding
upon and inure to the benefit of the Agent and the Banks, the Borrower and its
successors and assigns, except that the Borrower may not assign or transfer any
of its rights under this Agreement without the prior written consent of the
Banks.
9.13 No Third Party Beneficiaries. The rights and benefits of
this Agreement and the other Loan Documents are not intended to, and shall not,
inure to the benefit of any third party. 9.14 Exhibits. All exhibits and
schedules attached to this Agreement are incorporated and made a part of this
Agreement.
9.14 Exhibits. All exhibits and schedules attached to this
Agreement are incorporated and made a part of this Agreement.
9.15 Headings. The section headings contained in this
Agreement are for convenience only and do not limit or define or affect the
construction or interpretation of this Agreement in any respect.
9.16 Limitation of Liability. To the fullest extent permitted
by Law, no claim may be made by any Loan Party against the Agent or the Banks or
any affiliate, director, officer, employee, attorney or agent thereof for any
special, incidental, indirect, consequential or punitive damages in respect of
any claim arising from or relating to this Agreement or any other Loan
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Document or any statement, course of conduct, act, omission or event occurring
in connection herewith or therewith (whether for breach of contract, tort or any
other theory of liability). Each Loan Party hereby waives, releases and agrees
not to sue upon any claim for any such damages, whether such claim presently
exists or arises hereafter and whether or not such claim is known or suspected
to exist in its favor. This Section 9.16 shall not limit any rights of the
Borrower arising solely out of willful misconduct as determined by a court of
competent jurisdiction.
9.17 WAIVER OF TRIAL BY JURY.
THE BORROWER, THE AGENT AND THE BANKS
EXPRESSLY, KNOWINGLY AND VOLUNTARILY INITIALS:
WAIVE ALL BENEFIT AND ADVANTAGE OF ANY /s/ BCG
RIGHT TO A TRIAL BY JURY, AND NEITHER WILL AT --------
ANY TIME INSIST UPON, OR PLEAD OR IN ANY MANNER BORROWER
WHATSOEVER CLAIM OR TAKE THE BENEFIT OR /s/ DRF
ADVANTAGE OF A TRIAL BY JURY IN ANY ACTION --------
ARISING IN CONNECTION WITH THIS AGREEMENT, BANKS
THE NOTES OR ANY OF THE LOAN DOCUMENTS.
[INTENTIONALLY LEFT BLANK]
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Document or any statement, course of conduct, act, omission or event occurring
in connection herewith or therewith (whether for breach of contract, tort or any
other theory of liability). Each Loan Party hereby waives, releases and agrees
not to sue upon any claim for any such damages, whether such claim presently
exists or arises hereafter and whether or not such claim is known or suspected
to exist in its favor. This Section 9.16 shall not limit any rights of the
Borrower arising solely out of willful misconduct as determined by a court of
competent jurisdiction.
9.17 WAIVER OF TRIAL BY JURY.
THE BORROWER, THE AGENT AND THE BANKS
EXPRESSLY, KNOWINGLY AND VOLUNTARILY INITIALS:
WAIVE ALL BENEFIT AND ADVANTAGE OF ANY
RIGHT TO A TRIAL BY JURY, AND NEITHER WILL AT --------
ANY TIME INSIST UPON, OR PLEAD OR IN ANY MANNER BORROWER
WHATSOEVER CLAIM OR TAKE THE BENEFIT OR /s/ LAM
ADVANTAGE OF A TRIAL BY JURY IN ANY ACTION --------
ARISING IN CONNECTION WITH THIS AGREEMENT, BANKS
THE NOTES OR ANY OF THE LOAN DOCUMENTS.
[INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, and intending to be legally bound, the
parties, by their duly authorized officers, have executed and delivered this
Agreement on the date set forth at the beginning of this Agreement.
Witness: Tuscarora Incorporated
/s/ Edward Hoopes By: /s/ Brian C. Mullins
- --------------------------- ----------------------------
Edward Hoopes Brian C. Mullins
Title: Sr. Vice President
----------------------------
Mellon Bank, N.A.
By: /s/ Dwayne R. Finney
----------------------------
Dwayne R. Finney
Vice President
KeyBank National Association
By: /s/ Lawrence A. Mack
----------------------------
Lawrence A. Mack
Title: Senior Vice President
----------------------------
<PAGE> 62
TERM NOTE
$30,000,000 Pittsburgh, Pennsylvania
September 23, 1999
FOR VALUE RECEIVED, the undersigned, Tuscarora Incorporated, a
Pennsylvania corporation (the "Borrower"), hereby promises to pay to the order
of Mellon Bank, N.A., a national banking association ("Mellon"), as provided for
in the Loan Agreement (as defined below), the aggregate principal amount of
Thirty Million and 00/100 Dollars ($30,000,000.00), together with interest on
the unpaid principal amount of this Term Note at the rate or rates per annum
determined pursuant to Article II of, or as otherwise provided in, that certain
Loan Agreement, dated the date hereof, by and among Borrower, Mellon, KeyBank
National Association ("Key") (Mellon and Key are individually, a "Bank" and
collectively, the "Banks") and Mellon, as agent for the Banks (in such capacity,
the "Agent"), as such agreement may be amended, modified or supplemented from
time to time (the "Loan Agreement") and with such amounts being payable on the
dates set forth in Article II of, or as otherwise provided in, the Loan
Agreement.
All payments and prepayments to be made in respect of
principal, interest or other amounts due from Borrower under this Term Note
shall be payable at 12:00 noon, Pittsburgh, Pennsylvania time, on the day when
due, without presentment, demand, protest or notice of any kind, all of which
are expressly waived, and an action therefor shall immediately accrue. All such
payments shall be made to the Agent for the ratable benefit of Mellon at the
designated office of the Agent located at Two Mellon Bank Center, Pittsburgh,
Pennsylvania 15259, in lawful money of the United States of America in
immediately available funds without setoff, counterclaim or other deduction of
any nature.
Except as otherwise provided in the Loan Agreement, if any
payment of principal or interest under this Term Note shall become due on a day
which is not a Business Day, such payment shall be made on the next following
Business Day and such extension of time shall be included in computing interest
in connection with such payment.
This Term Note is one of the Notes referred to in, and is
entitled to the benefits of, the Loan Agreement, as the same may be amended,
modified or supplemented from time to time. Capitalized terms used in this Term
Note which are defined in the Loan Agreement shall have the meanings assigned to
them therein unless otherwise defined in this Term Note.
WARRANT OF ATTORNEY TO CONFESS JUDGMENT. THE BORROWER HEREBY
IRREVOCABLY AUTHORIZES AND EMPOWERS THE PROTHONOTARY, ANY ATTORNEY OR ANY CLERK
OF ANY COURT OF RECORD, AFTER THE OCCURRENCE OF AN EVENT OF DEFAULT, TO APPEAR
FOR AND CONFESS JUDGMENT AGAINST THE BORROWER FOR SUCH SUMS AS ARE DUE AND/OR
MAY BECOME DUE UNDER THIS TERM NOTE, WITH OR WITHOUT DECLARATION, WITH COSTS OF
SUIT, WITHOUT STAY OF EXECUTION AND WITH AN AMOUNT EQUAL TO FIVE PERCENT (5%) OF
THE AMOUNT OF SUCH JUDGMENT, BUT NOT LESS THAN TEN THOUSAND AND 00/100 DOLLARS
($10,000.00) ADDED FOR ATTORNEYS' COLLECTION FEES. TO THE EXTENT
<PAGE> 63
PERMITTED BY LAW, THE BORROWER RELEASES ALL ERRORS IN SUCH PROCEEDINGS. IF A
COPY OF THIS TERM NOTE, VERIFIED BY AFFIDAVIT BY OR ON BEHALF OF THE HOLDER OF
THIS TERM NOTE SHALL HAVE BEEN FILED IN SUCH ACTION, IT SHALL NOT BE NECESSARY
TO FILE THE ORIGINAL TERM NOTE AS A WARRANT OF ATTORNEY. THE AUTHORITY AND POWER
TO APPEAR FOR AND CONFESS JUDGMENT AGAINST THE BORROWER SHALL NOT BE EXHAUSTED
BY THE INITIAL EXERCISE THEREOF AND MAY BE EXERCISED AS OFTEN AS THE HOLDER
SHALL FIND IT NECESSARY AND DESIRABLE AND THIS TERM NOTE OR A COPY THEREOF SHALL
BE A SUFFICIENT WARRANT THEREFOR. THE HOLDER HEREOF MAY CONFESS ONE OR MORE
JUDGMENTS IN THE SAME OR DIFFERENT JURISDICTIONS FOR ALL OR ANY PART OF THE
AMOUNT OWING HEREUNDER, WITHOUT REGARD TO WHETHER JUDGMENT HAS THERETOFORE BEEN
CONFESSED ON MORE THAN ONE OCCASION FOR THE SAME AMOUNT. IN THE EVENT ANY
JUDGMENT CONFESSED AGAINST THE BORROWER HEREUNDER IS STRICKEN OR OPENED UPON
APPLICATION BY OR ON THE BORROWER'S BEHALF FOR ANY REASON, HOLDER IS HEREBY
AUTHORIZED AND EMPOWERED TO AGAIN APPEAR FOR AND CONFESS JUDGMENT AGAINST THE
BORROWER FOR ANY PART OR ALL OF THE AMOUNTS OWING HEREUNDER, AS PROVIDED FOR
HEREIN, IF DOING SO WILL CURE ANY ERRORS OR DEFECTS IN SUCH PRIOR PROCEEDINGS.
This Term Note shall be governed by, and shall be construed
and enforced in accordance with, the laws of the Commonwealth of Pennsylvania
without regard to the principles of the conflicts of laws thereof. Borrower
hereby consents to the jurisdiction and venue of the Court of Common Pleas of
Allegheny County, Pennsylvania and the United States District Court for the
Western District of Pennsylvania with respect to any suit arising out of or
mentioning this Term Note.
[INTENTIONALLY LEFT BLANK]
-2-
<PAGE> 64
IN WITNESS WHEREOF, and intending to be legally bound hereby,
the Borrower has executed, issued and delivered this Term Note in Pittsburgh,
Pennsylvania on the day and year written above.
Witness: Tuscarora Incorporated
/s/ Edward Hoopes By: /s/ Brian C. Mullins
- -------------------------- ----------------------------
Edward Hoopes Brian C. Mullins
Title: Sr. Vice President
----------------------------
<PAGE> 65
TERM NOTE
$15,000,000 Pittsburgh, Pennsylvania
September 23, 1999
FOR VALUE RECEIVED, the undersigned, Tuscarora Incorporated, a
Pennsylvania corporation (the "Borrower"), hereby promises to pay to the order
of KeyBank National Association, a national banking association ("Key"), as
provided for in the Loan Agreement (as defined below), the aggregate principal
amount of Fifteen Million and 00/100 Dollars ($15,000,000.00), together with
interest on the unpaid principal amount of this Term Note at the rate or rates
per annum determined pursuant to Article II of, or as otherwise provided in,
that certain Loan Agreement, dated the date hereof, by and among Borrower, Key,
Mellon Bank, N.A. ("Mellon") (Key and Mellon are individually, a "Bank" and
collectively, the "Banks") and Mellon, as agent for the Banks (in such capacity,
the "Agent"), as such agreement may be amended, modified or supplemented from
time to time (the "Loan Agreement") and with such amounts being payable on the
dates set forth in Article II of, or as otherwise provided in, the Loan
Agreement.
All payments and prepayments to be made in respect of
principal, interest or other amounts due from Borrower under this Term Note
shall be payable at 12:00 noon, Pittsburgh, Pennsylvania time, on the day when
due, without presentment, demand, protest or notice of any kind, all of which
are expressly waived, and an action therefor shall immediately accrue. All such
payments shall be made to the Agent for the ratable benefit of Key at the
designated office of the Agent located at Two Mellon Bank Center, Pittsburgh,
Pennsylvania 15259, in lawful money of the United States of America in
immediately available funds without setoff, counterclaim or other deduction of
any nature.
Except as otherwise provided in the Loan Agreement, if any
payment of principal or interest under this Term Note shall become due on a day
which is not a Business Day, such payment shall be made on the next following
Business Day and such extension of time shall be included in computing interest
in connection with such payment.
This Term Note is one of the Notes referred to in, and is
entitled to the benefits of, the Loan Agreement, as the same may be amended,
modified or supplemented from time to time. Capitalized terms used in this Term
Note which are defined in the Loan Agreement shall have the meanings assigned to
them therein unless otherwise defined in this Term Note.
WARRANT OF ATTORNEY TO CONFESS JUDGMENT. THE BORROWER HEREBY
IRREVOCABLY AUTHORIZES AND EMPOWERS THE PROTHONOTARY, ANY ATTORNEY OR ANY CLERK
OF ANY COURT OF RECORD, AFTER THE OCCURRENCE OF AN EVENT OF DEFAULT, TO APPEAR
FOR AND CONFESS JUDGMENT AGAINST THE BORROWER FOR SUCH SUMS AS ARE DUE AND/OR
MAY BECOME DUE UNDER THIS TERM NOTE, WITH OR WITHOUT DECLARATION, WITH COSTS OF
SUIT, WITHOUT STAY OF EXECUTION AND WITH AN AMOUNT EQUAL TO FIVE PERCENT (5%) OF
THE AMOUNT OF SUCH JUDGEMENT, BUT NOT LESS THAN TEN THOUSAND AND 00/100 DOLLARS
($10,000.00) ADDED FOR ATTORNEYS' COLLECTION FEES. TO THE EXTENT
<PAGE> 66
PERMITTED BY LAW, THE BORROWER RELEASES ALL ERRORS IN SUCH PROCEEDINGS. IF A
COPY OF THIS TERM NOTE, VERIFIED BY AFFIDAVIT BY OR ON BEHALF OF THE HOLDER OF
THIS TERM NOTE SHALL HAVE BEEN FILED IN SUCH ACTION, IT SHALL NOT BE NECESSARY
TO FILE THE ORIGINAL TERM NOTE AS A WARRANT OF ATTORNEY. THE AUTHORITY AND POWER
TO APPEAR FOR AND CONFESS JUDGMENT AGAINST THE BORROWER SHALL NOT BE EXHAUSTED
BY THE INITIAL EXERCISE THEREOF AND MAY BE EXERCISED AS OFTEN AS THE HOLDER
SHALL FIND IT NECESSARY AND DESIRABLE AND THIS TERM NOTE OR A COPY THEREOF SHALL
BE A SUFFICIENT WARRANT THEREFOR. THE HOLDER HEREOF MAY CONFESS ONE OR MORE
JUDGMENTS IN THE SAME OR DIFFERENT JURISDICTIONS FOR ALL OR ANY PART OF THE
AMOUNT OWING HEREUNDER, WITHOUT REGARD TO WHETHER JUDGMENT HAS THERETOFORE BEEN
CONFESSED ON MORE THAN ONE OCCASION FOR THE SAME AMOUNT. IN THE EVENT ANY
JUDGMENT CONFESSED AGAINST THE BORROWER HEREUNDER IS STRICKEN OR OPENED UPON
APPLICATION BY OR ON THE BORROWER'S BEHALF FOR ANY REASON, HOLDER IS HEREBY
AUTHORIZED AND EMPOWERED TO AGAIN APPEAR FOR AND CONFESS JUDGMENT AGAINST THE
BORROWER FOR ANY PART OR ALL OF THE AMOUNTS OWING HEREUNDER, AS PROVIDED FOR
HEREIN, IF DOING SO WILL CURE ANY ERRORS OR DEFECTS IN SUCH PRIOR PROCEEDINGS.
This Term Note shall be governed by, and shall be construed
and enforced in accordance with, the laws of the Commonwealth of Pennsylvania
without regard to the principles of the conflicts of laws thereof. Borrower
hereby consents to the jurisdiction and venue of the Court of Common Pleas of
Allegheny County, Pennsylvania and the United States District Court for the
Western District of Pennsylvania with respect to any suit arising out of or
mentioning this Term Note.
[INTENTIONALLY LEFT BLANK]
-2-
<PAGE> 67
IN WITNESS WHEREOF, and intending to be legally bound hereby,
the Borrower has executed, issued and delivered this Term Note in Pittsburgh,
Pennsylvania on the day and year written above.
Witness: Tuscarora Incorporated
/s/ Edward Hoopes By: /s/ Brian C. Mullins
- -------------------------- ----------------------------
Edward Hoopes Brian C. Mullins
Title: Sr. Vice President
----------------------------
<PAGE> 68
REVOLVING CREDIT NOTE
$30,000,000 Pittsburgh, Pennsylvania
September 23, 1999
FOR VALUE RECEIVED, the undersigned, Tuscarora Incorporated, a
Pennsylvania corporation (the "Borrower"), hereby promises to pay to the order
of Mellon Bank, N.A., a national banking association ("Mellon"), as provided for
in the Loan Agreement (as defined below), the lesser of (i) the principal sum of
Thirty Million and 00/100 Dollars ($30,000,000.00), or (ii) Mellon's ratable
portion of the aggregate unpaid principal amount of all Revolving Credit Loans
made by Mellon to Borrower pursuant to that certain Loan Agreement, dated the
date hereof, by and among Borrower, Mellon, KeyBank National Association ("Key")
(Mellon and Key are individually a "Bank" and collectively, the "Banks") and
Mellon, as agent for the Banks (in such capacity, the "Agent"), as such
agreement may be amended, modified or supplemented from time to time (the "Loan
Agreement"). Borrower hereby further promises to pay to the order of Mellon
interest on the unpaid principal amount of this Revolving Credit Note from time
to time outstanding at the rate or rates per annum determined pursuant to
Article II of, or as otherwise provided in, the Loan Agreement, and with such
amounts being payable on the dates set forth in Article II of, or as otherwise
provided in, the Loan Agreement.
All payments and prepayments to be made in respect of
principal, interest, or other amounts due from Borrower under this Revolving
Credit Note shall be payable at 12:00 noon, Pittsburgh, Pennsylvania time, on
the day when due, without presentment, demand, protest or notice of any kind,
all of which are expressly waived, and an action therefor shall immediately
accrue. All such payments shall be made to the Agent for the ratable benefit of
Mellon at the designated office of the Agent located at Two Mellon Bank Center,
Pittsburgh, Pennsylvania 15259, in lawful money of the United States of America
in immediately available funds without setoff, counterclaim or other deduction
of any nature.
Except as otherwise provided in the Loan Agreement, if any
payment of principal or interest under this Revolving Credit Note shall become
due on a day which is not a Business Day, such payment shall be made on the next
following Business Day and such extension of time shall be included in computing
interest in connection with such payment.
This Revolving Credit Note is one of the Notes referred to in,
and is entitled to the benefits of, the Loan Agreement, as the same may be
amended, modified or supplemented from time to time. Capitalized terms used in
this Revolving Credit Note which are defined in the Loan Agreement shall have
the meanings assigned to them therein unless otherwise defined in this Revolving
Credit Note.
WARRANT OF ATTORNEY TO CONFESS JUDGMENT. THE BORROWER HEREBY
IRREVOCABLY AUTHORIZES AND EMPOWERS THE PROTHONOTARY, ANY ATTORNEY OR ANY CLERK
OF ANY COURT OF RECORD, AFTER THE OCCURRENCE OF AN EVENT OF DEFAULT, TO APPEAR
FOR AND CONFESS JUDGMENT AGAINST THE BORROWER FOR SUCH SUMS AS ARE DUE AND/OR
MAY BECOME DUE UNDER THIS REVOLVING CREDIT NOTE, WITH OR
<PAGE> 69
WITHOUT DECLARATION, WITH COSTS OF SUIT, WITHOUT STAY OF EXECUTION AND WITH AN
AMOUNT EQUAL TO FIVE PERCENT (5%) OF THE AMOUNT OF SUCH JUDGMENT, BUT NOT LESS
THAN TEN THOUSAND AND 00/100 DOLLARS ($10,000.00) ADDED FOR ATTORNEYS'
COLLECTION FEES. TO THE EXTENT PERMITTED BY LAW, THE BORROWER RELEASES ALL
ERRORS IN SUCH PROCEEDINGS. IF A COPY OF THIS REVOLVING CREDIT NOTE, VERIFIED BY
AFFIDAVIT BY OR ON BEHALF OF THE HOLDER OF THIS REVOLVING CREDIT NOTE SHALL HAVE
BEEN FILED IN SUCH ACTION, IT SHALL NOT BE NECESSARY TO FILE THE ORIGINAL
REVOLVING CREDIT NOTE AS A WARRANT OF ATTORNEY. THE AUTHORITY AND POWER TO
APPEAR FOR AND CONFESS JUDGMENT AGAINST THE BORROWER SHALL NOT BE EXHAUSTED BY
THE INITIAL EXERCISE THEREOF AND MAY BE EXERCISED AS OFTEN AS THE HOLDER SHALL
FIND IT NECESSARY AND DESIRABLE AND THIS REVOLVING CREDIT NOTE OR A COPY THEREOF
SHALL BE A SUFFICIENT WARRANT THEREFOR. THE HOLDER HEREOF MAY CONFESS ONE OR
MORE JUDGMENTS IN THE SAME OR DIFFERENT JURISDICTIONS FOR ALL OR ANY PART OF THE
AMOUNT OWING HEREUNDER, WITHOUT REGARD TO WHETHER JUDGMENT HAS THERETOFORE BEEN
CONFESSED ON MORE THAN ONE OCCASION FOR THE SAME AMOUNT. IN THE EVENT ANY
JUDGMENT CONFESSED AGAINST THE BORROWER HEREUNDER IS STRICKEN OR OPENED UPON
APPLICATION BY OR ON THE BORROWER'S BEHALF FOR ANY REASON, HOLDER IS HEREBY
AUTHORIZED AND EMPOWERED TO AGAIN APPEAR FOR AND CONFESS JUDGMENT AGAINST THE
BORROWER FOR ANY PART OR ALL OF THE AMOUNTS OWING HEREUNDER, AS PROVIDED FOR
HEREIN, IF DOING SO WILL CURE ANY ERRORS OR DEFECTS IN SUCH PRIOR PROCEEDINGS.
This Revolving Credit Note shall be governed by, and shall be
construed and enforced in accordance with, the laws of the Commonwealth of
Pennsylvania without regard to the principles of the conflicts of laws thereof.
Borrower hereby consents to the jurisdiction and venue of the Court of Common
Pleas of Allegheny County, Pennsylvania and the United States District Court for
the Western District of Pennsylvania with respect to any suit arising out of or
mentioning this Revolving Credit Note.
[INTENTIONALLY LEFT BLANK]
-2-
<PAGE> 70
IN WITNESS WHEREOF, and intending to be legally bound hereby,
the Borrower has executed, issued and delivered this Revolving Credit Note in
Pittsburgh, Pennsylvania on the day and year written above.
Witness: Tuscarora Incorporated
/s/ Edward Hoopes By: /s/ Brian C. Mullins
- -------------------------- ----------------------------
Edward Hoopes Brian C. Mullins
Title: Sr. Vice President
----------------------------
<PAGE> 71
REVOLVING CREDIT NOTE
$15,000,000 Pittsburgh, Pennsylvania
September 23, 1999
FOR VALUE RECEIVED, the undersigned, Tuscarora Incorporated, a
Pennsylvania corporation (the "Borrower"), hereby promises to pay to the order
of KeyBank National Association, a national banking association ("Key"), as
provided for in the Loan Agreement (as defined below), the lesser of (i) the
principal sum of Fifteen Million and 00/100 Dollars ($15,000,000.00), or (ii)
Key's ratable portion of the aggregate unpaid principal amount of all Revolving
Credit Loans made by Key to Borrower pursuant to that certain Loan Agreement,
dated the date hereof, by and among Borrower, Mellon Bank, N.A. ("Mellon") (Key
and Mellon are individually, a "Bank" and collectively, the "Banks") and Mellon,
as agent for the Banks (in such capacity the "Agent"), as such agreement may be
amended, modified or supplemented from time to time (the "Loan Agreement").
Borrower hereby further promises to pay to the order of Key interest on the
unpaid principal amount of this Revolving Credit Note from time to time
outstanding at the rate or rates per annum determined pursuant to Article II of,
or as otherwise provided in, the Loan Agreement, and with such amounts being
payable on the dates set forth in Article II of, or as otherwise provided in,
the Loan Agreement.
All payments and prepayments to be made in respect of
principal, interest, or other amounts due from Borrower under this Revolving
Credit Note shall be payable at 12:00 noon, Pittsburgh, Pennsylvania time, on
the day when due, without presentment, demand, protest or notice of any kind,
all of which are expressly waived, and an action therefor shall immediately
accrue. All such payments shall be made to the Agent for the ratable benefit of
Key at the designated office of the Agent located at Two Mellon Bank Center,
Pittsburgh, Pennsylvania 15259, in lawful money of the United States of America
in immediately available funds without setoff, counterclaim or other deduction
of any nature.
Except as otherwise provided in the Loan Agreement, if any
payment of principal or interest under this Revolving Credit Note shall become
due on a day which is not a Business Day, such payment shall be made on the next
following Business Day and such extension of time shall be included in computing
interest in connection with such payment.
This Revolving Credit Note is one of the Notes referred to in,
and is entitled to the benefits of, the Loan Agreement, as the same may be
amended, modified or supplemented from time to time. Capitalized terms used in
this Revolving Credit Note which are defined in the Loan Agreement shall have
the meanings assigned to them therein unless otherwise defined in this Revolving
Credit Note.
WARRANT OF ATTORNEY TO CONFESS JUDGMENT. THE BORROWER HEREBY
IRREVOCABLY AUTHORIZES AND EMPOWERS THE PROTHONOTARY, ANY ATTORNEY OR ANY CLERK
OF ANY COURT OF RECORD, AFTER THE OCCURRENCE OF AN EVENT OF DEFAULT, TO APPEAR
FOR AND CONFESS JUDGMENT AGAINST THE BORROWER FOR SUCH SUMS AS ARE DUE AND/OR
MAY BECOME DUE UNDER THIS REVOLVING CREDIT NOTE, WITH OR
<PAGE> 72
WITHOUT DECLARATION, WITH COSTS OF SUIT, WITHOUT STAY OF EXECUTION AND WITH AN
AMOUNT EQUAL TO FIVE PERCENT (5%) OF THE AMOUNT OF SUCH JUDGMENT, BUT NOT LESS
THAN TEN THOUSAND AND 00/100 DOLLARS ($10,000.00) ADDED FOR ATTORNEYS'
COLLECTION FEES. TO THE EXTENT PERMITTED BY LAW, THE BORROWER RELEASES ALL
ERRORS IN SUCH PROCEEDINGS. IF A COPY OF THIS REVOLVING CREDIT NOTE, VERIFIED BY
AFFIDAVIT BY OR ON BEHALF OF THE HOLDER OF THIS REVOLVING CREDIT NOTE SHALL HAVE
BEEN FILED IN SUCH ACTION, IT SHALL NOT BE NECESSARY TO FILE THE ORIGINAL
REVOLVING CREDIT NOTE AS A WARRANT OF ATTORNEY. THE AUTHORITY AND POWER TO
APPEAR FOR AND CONFESS JUDGMENT AGAINST THE BORROWER SHALL NOT BE EXHAUSTED BY
THE INITIAL EXERCISE THEREOF AND MAY BE EXERCISED AS OFTEN AS THE HOLDER SHALL
FIND IT NECESSARY AND DESIRABLE AND THIS REVOLVING CREDIT NOTE OR A COPY THEREOF
SHALL BE A SUFFICIENT WARRANT THEREFOR. THE HOLDER HEREOF MAY CONFESS ONE OR
MORE JUDGMENTS IN THE SAME OR DIFFERENT JURISDICTIONS FOR ALL OR ANY PART OF THE
AMOUNT OWING HEREUNDER, WITHOUT REGARD TO WHETHER JUDGMENT HAS THERETOFORE BEEN
CONFESSED ON MORE THAN ONE OCCASION FOR THE SAME AMOUNT. IN THE EVENT ANY
JUDGMENT CONFESSED AGAINST THE BORROWER HEREUNDER IS STRICKEN OR OPENED UPON
APPLICATION BY OR ON THE BORROWER'S BEHALF FOR ANY REASON, HOLDER IS HEREBY
AUTHORIZED AND EMPOWERED TO AGAIN APPEAR FOR AND CONFESS JUDGMENT AGAINST THE
BORROWER FOR ANY PART OR ALL OF THE AMOUNTS OWING HEREUNDER, AS PROVIDED FOR
HEREIN, IF DOING SO WILL CURE ANY ERRORS OR DEFECTS IN SUCH PRIOR PROCEEDINGS.
This Revolving Credit Note shall be governed by, and shall be
construed and enforced in accordance with, the laws of the Commonwealth of
Pennsylvania without regard to the principles of the conflicts of laws thereof.
Borrower hereby consents to the jurisdiction and venue of the Court of Common
Pleas of Allegheny County, Pennsylvania and the United States District Court for
the Western District of Pennsylvania with respect to any suit arising out of or
mentioning this Revolving Credit Note.
[INTENTIONALLY LEFT BLANK]
-2-
<PAGE> 73
IN WITNESS WHEREOF, and intending to be legally bound hereby,
the Borrower has executed, issued and delivered this Revolving Credit Note in
Pittsburgh, Pennsylvania on the day and year written above.
Witness: Tuscarora Incorporated
/s/ Edward Hoopes By: /s/ Brian C. Mullins
- -------------------------- ----------------------------
Edward Hoopes Brian C. Mullins
Title: Sr. Vice President
----------------------------
<PAGE> 74
SWING LINE NOTE
$10,000,000 Pittsburgh, Pennsylvania
September 23, 1999
FOR VALUE RECEIVED, the undersigned, Tuscarora Incorporated, a
Pennsylvania corporation (the "Borrower"), hereby promises to pay to the order
of Mellon Bank, N.A., a national banking association ("Mellon"), as provided for
in the Loan Agreement (as defined below), the lesser of (i) the principal sum of
Ten Million and 00/100 Dollars ($10,000,000.00), or (ii) the aggregate unpaid
principal amount of all Swing Line Loans made by Mellon to Borrower pursuant to
that certain Loan Agreement, dated the date hereof, by and among Borrower,
Mellon, KeyBank National Association ("Key") (Mellon and Key are individually a
"Bank" and collectively, the "Banks") and Mellon, as agent for the Banks (in
such capacity, the "Agent"), as such agreement may be amended, modified or
supplemented from time to time (the "Loan Agreement"). Borrower hereby further
promises to pay to the order of Mellon interest on the unpaid principal amount
of this Swing Line Note from time to time outstanding at the rate or rates per
annum determined pursuant to Article II of, or as otherwise provided in, the
Loan Agreement, and with such amounts being payable on the dates set forth in
Article II of, or as otherwise provided in, the Loan Agreement.
All payments and prepayments to be made in respect of
principal, interest, or other amounts due from Borrower under this Swing Line
Note shall be payable at 12:00 noon, Pittsburgh, Pennsylvania time, on the day
when due, without presentment, demand, protest or notice of any kind, all of
which are expressly waived, and an action therefor shall immediately accrue. All
such payments shall be made to Mellon at its designated office located at Two
Mellon Bank Center, Pittsburgh, Pennsylvania 15259, in lawful money of the
United States of America in immediately available funds without setoff,
counterclaim or other deduction of any nature.
Except as otherwise provided in the Loan Agreement, if any
payment of principal or interest under this Swing Line Note shall become due on
a day which is not a Business Day, such payment shall be made on the next
following Business Day and such extension of time shall be included in computing
interest in connection with such payment.
This Swing Line Note is one of the Notes referred to in, and
is entitled to the benefits of, the Loan Agreement, as the same may be amended,
modified or supplemented from time to time. Capitalized terms used in this Swing
Line Note which are defined in the Loan Agreement shall have the meanings
assigned to them therein unless otherwise defined in this Swing Line Note.
WARRANT OF ATTORNEY TO CONFESS JUDGMENT. THE BORROWER HEREBY
IRREVOCABLY AUTHORIZES AND EMPOWERS THE PROTHONOTARY, ANY ATTORNEY OR ANY CLERK
OF ANY COURT OF RECORD, AFTER THE OCCURRENCE OF AN EVENT OF DEFAULT, TO APPEAR
FOR AND CONFESS JUDGMENT AGAINST THE BORROWER FOR SUCH SUMS AS ARE DUE AND/OR
MAY BECOME DUE UNDER THIS SWING LINE NOTE, WITH OR WITHOUT DECLARATION, WITH
COSTS OF SUIT, WITHOUT STAY OF
<PAGE> 75
EXECUTION AND WITH AN AMOUNT EQUAL TO FIVE PERCENT (5%) OF THE AMOUNT OF SUCH
JUDGMENT, BUT NOT LESS THAN TEN THOUSAND AND 00/100 DOLLARS ($10,000.00) ADDED
FOR ATTORNEYS' COLLECTION FEES. TO THE EXTENT PERMITTED BY LAW, THE BORROWER
RELEASES ALL ERRORS IN SUCH PROCEEDINGS. IF A COPY OF THIS SWING LINE NOTE,
VERIFIED BY AFFIDAVIT BY OR ON BEHALF OF THE HOLDER OF THIS SWING LINE NOTE
SHALL HAVE BEEN FILED IN SUCH ACTION, IT SHALL NOT BE NECESSARY TO FILE THE
ORIGINAL SWING LINE NOTE AS A WARRANT OF ATTORNEY. THE AUTHORITY AND POWER TO
APPEAR FOR AND CONFESS JUDGMENT AGAINST THE BORROWER SHALL NOT BE EXHAUSTED BY
THE INITIAL EXERCISE THEREOF AND MAY BE EXERCISED AS OFTEN AS THE HOLDER SHALL
FIND IT NECESSARY AND DESIRABLE AND THIS SWING LINE NOTE OR A COPY THEREOF SHALL
BE A SUFFICIENT WARRANT THEREFOR. THE HOLDER HEREOF MAY CONFESS ONE OR MORE
JUDGMENTS IN THE SAME OR DIFFERENT JURISDICTIONS FOR ALL OR ANY PART OF THE
AMOUNT OWING HEREUNDER, WITHOUT REGARD TO WHETHER JUDGMENT HAS THERETOFORE BEEN
CONFESSED ON MORE THAN ONE OCCASION FOR THE SAME AMOUNT. IN THE EVENT ANY
JUDGMENT CONFESSED AGAINST THE BORROWER HEREUNDER IS STRICKEN OR OPENED UPON
APPLICATION BY OR ON THE BORROWER'S BEHALF FOR ANY REASON, HOLDER IS HEREBY
AUTHORIZED AND EMPOWERED TO AGAIN APPEAR FOR AND CONFESS JUDGMENT AGAINST THE
BORROWER FOR ANY PART OR ALL OF THE AMOUNTS OWING HEREUNDER, AS PROVIDED FOR
HEREIN, IF DOING SO WILL CURE ANY ERRORS OR DEFECTS IN SUCH PRIOR PROCEEDINGS.
This Swing Line Note shall be governed by, and shall be
construed and enforced in accordance with, the laws of the Commonwealth of
Pennsylvania without regard to the principles of the conflicts of laws thereof.
Borrower hereby consents to the jurisdiction and venue of the Court of Common
Pleas of Allegheny County, Pennsylvania and the United States District Court for
the Western District of Pennsylvania with respect to any suit arising out of or
mentioning this Swing Line Note.
[INTENTIONALLY LEFT BLANK]
-2-
<PAGE> 76
IN WITNESS WHEREOF, and intending to be legally bound hereby,
the Borrower has executed, issued and delivered this Swing Line Note in
Pittsburgh, Pennsylvania on the day and year written above.
Witness: Tuscarora Incorporated
/s/ Edward Hoopes By: /s/ Brian C. Mullins
- -------------------------- ----------------------------
Edward Hoopes Brian C. Mullins
Title: Sr. Vice President
----------------------------
<PAGE> 1
EXHIBIT 13
TABLE OF CONTENTS
TO THE CONSOLIDATED
FINANCIAL STATEMENTS
Consolidated Statements 11
of Income
Consolidated 12
Balance Sheets
Consolidated Statements 13
of Cash Flows
Consolidated Statements 14
of Shareholders' Equity
Notes to Consolidated 15
Financial Statements
Report of Independent 25
Auditors
Management's 25
Discussion and Analysis
of Results of Operations
and
Financial Condition
CONSOLIDATED STATEMENTS OF INCOME
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------
Year Ended
August 31, 1999 1998 1997
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Net Sales $233,841,000 $232,902,210 $209,206,775
Cost of Sales 178,635,682 180,144,500 160,951,244
- -------------------------------------------------------------------------------------------------------
Gross profit 55,205,318 52,757,710 48,255,531
- -------------------------------------------------------------------------------------------------------
Selling and Administrative Expenses 31,959,155 31,195,448 28,636,840
Restructuring Costs (Note 14) -- 3,495,336 --
Interest Expense 4,619,190 4,944,271 3,741,275
Other (Income) Expense-- Net (232,602) (58,756) 436,154
- -------------------------------------------------------------------------------------------------------
36,345,743 39,576,299 32,814,269
- -------------------------------------------------------------------------------------------------------
Income before income taxes 18,859,575 13,181,411 15,441,262
Provision for Income Taxes (Note 10) 7,130,451 5,149,463 6,146,001
- -------------------------------------------------------------------------------------------------------
Net income $ 11,729,124 $ 8,031,948 $ 9,295,261
- -------------------------------------------------------------------------------------------------------
Basic net income per common share (Note 5) $1.24 $0.85 $0.98
Diluted net income per common share (Note 5) $1.23 $0.83 $0.97
Cash dividends paid per common share $0.24 $0.22 $0.19
- -------------------------------------------------------------------------------------------------------
</TABLE>
The accompanying notes are an integral part of
the consolidated financial statements.
11
<PAGE> 2
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------
ASSETS (August 31) 1999 1998
- ----------------------------------------------------------------------------------------------------
<S> <C> <C>
Current Assets
Cash and cash equivalents $ 6,090,066 $ 5,452,281
Trade accounts receivable, less allowance of
$670,033 in 1999; $651,720 in 1998 33,427,529 34,239,819
Inventories (Note 2) 22,490,918 20,158,857
Prepaid expenses and other current assets 2,425,187 1,955,310
- ----------------------------------------------------------------------------------------------------
Total current assets 64,433,700 61,806,267
- ----------------------------------------------------------------------------------------------------
PROPERTY, PLANT AND EQUIPMENT
Land 3,950,046 3,944,644
Buildings and improvements 63,141,812 58,796,424
Machinery and equipment 131,943,609 131,344,481
- ----------------------------------------------------------------------------------------------------
Total 199,035,467 194,085,549
- ----------------------------------------------------------------------------------------------------
Less accumulated depreciation (97,980,580) (96,547,340)
- ----------------------------------------------------------------------------------------------------
Net property, plant and equipment 101,054,887 97,538,209
- ----------------------------------------------------------------------------------------------------
OTHER ASSETS
Goodwill 8,667,816 8,905,355
Other non-current assets 3,229,120 3,916,075
- ----------------------------------------------------------------------------------------------------
Total other assets 11,896,936 12,821,430
- ----------------------------------------------------------------------------------------------------
Total assets $ 177,385,523 $ 172,165,906
====================================================================================================
LIABILITIES AND SHAREHOLDERS'S EQUITY (August 31)
- ----------------------------------------------------------------------------------------------------
CURRENT LIABILITIES
Current maturities of long-term debt (Note 3) $ 5,113,972 $ 5,321,709
Accounts payable 15,133,063 14,178,763
Accrued income taxes 276,112 337,711
Accrued payroll and related taxes 1,518,769 1,133,192
Other current liabilities 5,017,092 5,975,400
- ----------------------------------------------------------------------------------------------------
Total current liabilities 27,059,008 26,946,775
- ----------------------------------------------------------------------------------------------------
LONG-TERM DEBT (Note 3) 60,064,673 61,184,124
DEFERRED INCOME TAXES (Note 10) 1,123,373 1,677,978
OTHER LONG-TERM LIABILITIES 2,454,547 2,833,072
- ----------------------------------------------------------------------------------------------------
Total liabilities 90,701,601 92,641,949
- ----------------------------------------------------------------------------------------------------
COMMITMENTS (Note 15)
SHAREHOLDERS' EQUITY -- --
Preferred Stock--par value $.01 per share;
authorized shares, 2,000,000; none issued -- --
Common Stock--without par value; authorized shares,
50,000,000; issued shares, 9,568,343 in 1999,
9,530,856 in 1998 (Note 4) 9,568,343 9,530,856
Capital surplus (Note 4) 1,696,670 1,435,582
Retained earnings 77,680,902 68,240,138
Accumulated other comprehensive income (loss) (481,262) 392,150
- ----------------------------------------------------------------------------------------------------
Total 88,464,653 79,598,726
- ----------------------------------------------------------------------------------------------------
Less Common Stock in treasury--138,468 shares
in 1999; 4,620 shares in 1998; at cost (1,780,731) (74,769)
- ----------------------------------------------------------------------------------------------------
Total shareholders' equity 86,683,922 79,523,957
- ----------------------------------------------------------------------------------------------------
Total liabilities and shareholders' equity $ 177,385,523 $ 172,165,906
====================================================================================================
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
12
<PAGE> 3
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------
Year Ended
August 31, 1999 1998 1997
- ---------------------------------------------------------------------------------------------------------------------------
OPERATING ACTIVITIES
<S> <C> <C> <C>
Net income $ 11,729,124 $ 8,031,948 $ 9,295,261
Adjustments to reconcile net income to
cash provided by operating activities:
Depreciation 16,363,522 16,080,389 14,429,068
Amortization 1,226,042 1,150,138 857,319
Provision for losses on receivables 145,319 311,711 504,862
Deferred income taxes (494,962) (748,329) (69,674)
Loss on sale, abandonment or write-down of
property, plant and equipment, net (Note 14) 67,442 2,470,209 524,449
Stock compensation expense 12,011 13,513 13,684
Changes in operating assets and liabilities, net of
effects of business acquisitions:
Decrease (increase):
Trade accounts receivable 980,761 (3,095,960) 852,227
Inventories (1,875,503) (1,816,520) (521,990)
Prepaid expenses and other current assets (829,221) (357,209) (961,419)
Other non-current assets (115,583) 220,059 (179,702)
Increase (decrease):
Accounts payable 710,325 (2,490,497) (2,133,551)
Accrued income taxes (34,061) (55,307) 96,729
Accrued payroll and related taxes 300,043 241,914 249,493
Other current liabilities (837,492) 2,112,943 (2,256,586)
Other long-term liabilities (40,819) (357,788) 311,645
- ---------------------------------------------------------------------------------------------------------------------------
Cash provided by operating activities 27,306,948 21,711,214 21,011,815
- ---------------------------------------------------------------------------------------------------------------------------
INVESTING ACTIVITIES
Purchase of property, plant and equipment (19,491,132) (24,153,483) (21,318,432)
Business acquisitions, net of cash acquired (Note 12) (3,090,313) (1,062,744) (14,084,072)
Proceeds from sale of property, plant and equipment 887,112 1,399,612 1,050,319
- ---------------------------------------------------------------------------------------------------------------------------
Cash used for investing activities (21,694,333) (23,816,615) (34,352,185)
- ---------------------------------------------------------------------------------------------------------------------------
FINANCING ACTIVITIES
Proceeds from long-term debt 4,000,000 9,221,670 23,000,000
Principal payments on long-term debt (5,318,515) (5,156,164) (6,320,161)
Dividends paid (2,288,360) (2,083,750) (1,828,369)
Proceeds from sale of Common Stock 156,281 402,746 421,194
Payment to reacquire Common Stock (1,575,688) -- --
- ---------------------------------------------------------------------------------------------------------------------------
Cash provided by (used for)
financing activities (5,026,282) 2,384,502 15,272,664
- ---------------------------------------------------------------------------------------------------------------------------
EFFECT OF FOREIGN CURRENCY EXCHANGE RATE CHANGES
ON CASH AND CASH EQUIVALENTS 51,452 78,031 (216,921)
Net increase in cash and cash equivalents 637,785 357,132 1,715,373
- ---------------------------------------------------------------------------------------------------------------------------
CASH AND CASH EQUIVALENTS AT BEGINNING OF PERIOD 5,452,281 5,095,149 3,379,776
- ---------------------------------------------------------------------------------------------------------------------------
CASH AND CASH EQUIVALENTS AT END OF PERIOD $ 6,090,066 $ 5,452,281 $ 5,095,149
- ---------------------------------------------------------------------------------------------------------------------------
SUPPLEMENTAL DISCLOSURE OF CASH FLOW DATA
Income taxes paid $ 7,861,502 $ 6,058,530 $ 5,944,408
Interest paid $ 5,018,886 $ 5,080,415 $ 3,046,640
===========================================================================================================================
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
13
<PAGE> 4
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
<TABLE>
<CAPTION>
Common Stock Treasury Shares
------------ Accumulated -------------------
Other
Comprehensive
Shares Capital Retained Income
Issued Amount Surplus Earnings (Loss) Shares Amount Total
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Balance at
August 31, 1996 9,426,923 $9,426,923 $ 740,818 $ 54,825,048 ($ 38,690) 12,351 ($127,210) $64,826,889
- -----------------------------------------------------------------------------------------------------------------------------------
Net income 9,295,261 9,295,261
Foreign currency
translation adjustment 88,689 88,689
- -----------------------------------------------------------------------------------------------------------------------------------
Comprehensive income 9,295,261 88,689 9,383,950
Sale of shares under
common stock
purchase plan 9,873 9,873 147,384 157,257
Sale of shares under
stock option plans 42,445 42,445 183,676 (21,530) 258,873 484,994
Shares acquired in
payment of
option price 13,799 (207,373) (207,373)
Dividends paid
($0.19 per share) (1,828,369) (1,828,369)
- -----------------------------------------------------------------------------------------------------------------------------------
Balance at
August 31, 1997 9,479,241 $9,479,241 $1,071,878 $ 62,291,940 $ 49,999 4,620 ($ 75,710) $72,817,348
- -----------------------------------------------------------------------------------------------------------------------------------
Net income 8,031,948 8,031,948
Foreign currency
translation adjustment 342,151 342,151
- -----------------------------------------------------------------------------------------------------------------------------------
Comprehensive income 8,031,948 342,151 8,374,099
Sale of shares under
common stock
purchase plan 9,516 9,516 147,461 156,977
Sale of shares under
stock option plans 42,099 42,099 216,243 (4,371) 71,877 330,219
Shares acquired in
payment of
option price 4,371 (70,936) (70,936)
Dividends paid
($0.22 per share) (2,083,750) (2,083,750)
- -----------------------------------------------------------------------------------------------------------------------------------
Balance at
August 31, 1998 9,530,856 $9,530,856 $1,435,582 $ 68,240,138 $ 392,150 4,620 ($ 74,769) $79,523,957
- -----------------------------------------------------------------------------------------------------------------------------------
Net income 11,729,124 11,729,124
Foreign currency
translation adjustment (873,412) (873,412)
- -----------------------------------------------------------------------------------------------------------------------------------
Comprehensive income 11,729,124 (873,412) 10,855,712
Sale of shares under
common stock
purchase plan 11,185 11,185 130,882 142,067
Sale of shares under
stock option plans 26,302 26,302 130,206 (10,418) 134,835 291,343
Shares acquired in
payment of
option price 20,416 (265,109) (265,109)
Shares acquired under
stock repurchase program 123,850 (1,575,688) (1,575,688)
Dividends paid
($0.24 per share) (2,288,360) (2,288,360)
- -----------------------------------------------------------------------------------------------------------------------------------
BALANCE AT
AUGUST 31, 1999 9,568,343 $9,568,343 $1,696,670 $ 77,680,902 ($481,262) 138,468 ($1,780,731) $86,683,922
===================================================================================================================================
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
14
<PAGE> 5
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
- --------------------------------------------------------------------------------
NOTE 1: SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
NATURE OF OPERATIONS
Tuscarora Incorporated (the Company) is a multinational designer and
manufacturer of protective packaging and material handling solutions, made from
a variety of materials, for a broad range of manufactured products. The Company
also supplies customers with molded foam plastic and thermoformed components for
industrial and consumer product applications. The Company's major customers are
in the following industries: high technology, automotive and recreational
vehicles, consumer electronics, large and small appliances, building products
and office furniture, and pharmaceuticals and specialty chemicals.
PRINCIPLES OF CONSOLIDATION
The consolidated financial statements include the accounts of Tuscarora
Incorporated and its subsidiaries. Significant inter-company accounts and
transactions have been eliminated.
REVENUE RECOGNITION
The Company recognizes revenue upon shipment of products to customers or upon
performance of services.
FOREIGN CURRENCY TRANSLATION
The assets and liabilities of the Company's foreign subsidiaries are translated
into U.S. dollars at the exchange rates prevailing at each balance sheet date
while revenues and expenses are translated into U.S. dollars at the average
exchange rates for each period presented. The translation adjustments are
reported separately in share-holders' equity and are included in accumulated
other comprehensive income (loss). Foreign currency transaction gains and losses
are included in determining net income.
CASH EQUIVALENTS
The Company considers all highly liquid investments with a maturity of 90 days
or less to be cash equivalents.
CONCENTRATIONS OF CREDIT RISK
Financial instruments which potentially subject the Company to credit risk
consist primarily of trade accounts receivable. However, due to the large number
of the Company's customers and their dispersion across many geographic areas,
concentrations of credit risk with respect to trade accounts receivable are
limited. This risk is further reduced by the Company's maintenance of credit
insurance on certain large accounts.
INVENTORIES
Inventories other than finished goods are stated at the lower of cost or market,
cost being determined on the FIFO (first-in, first-out) method. Finished goods
are stated at the lower of average cost or market and include the cost of
material, labor and manufacturing overhead.
PROPERTY, PLANT AND EQUIPMENT
Land, buildings and equipment are stated on the basis of cost. Major renewals
and betterments are capitalized while replacements and maintenance and repairs,
which do not improve or extend the life of the asset, are charged against
earnings in the year incurred. When properties are disposed of, the related cost
and accumulated depreciation are removed from the respective accounts, and any
gain or loss on disposition is reflected in earnings.
Provisions for depreciation of plant and equipment are computed on the
straight-line method based on the following estimated useful lives:
Buildings and improvements............10-30 years
Machinery and equipment................3-10 years
15
<PAGE> 6
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
- --------------------------------------------------------------------------------
OTHER ASSETS
Other assets consist primarily of intangible assets such as goodwill and
covenants not to compete which have been acquired in connection with business
acquisitions (see Note 12) and are amortized using the straight-line method.
Goodwill is amortized over 15 years and the covenants over the period covered by
each agreement.
The carrying value of long-lived assets, including goodwill, is reviewed by the
Company and impairments are recognized when the expected future operating cash
flows derived from such intangible assets are less than their carrying value.
DERIVATIVE FINANCIAL INSTRUMENTS
The Company has entered into interest rate swap, cap and floor agreements with
its principal bank, the purpose of which is to reduce the impact of increases in
interest rates on the Company's variable rate long-term debt (see Note 3). The
Company accounts for the agreements under the accrual method that requires
amounts paid or received under the agreements to be recognized as adjustments to
interest expense.
STOCK-BASED COMPENSATION
Stock options granted by the Company are accounted for in accordance with
Accounting Principles Board Opinion No. 25, "Accounting for Stock Issued to
Employees" ("APB No. 25"). In accordance with APB No. 25, no stock-based
compensation expense has been recognized in the accompanying financial
statements for the Company's employee stock options since the exercise price of
the outstanding stock options has equaled the market price of the underlying
stock on the date of grant of the stock options. Stock-based compensation
expense under APB No. 25 has, however, been recognized in the accompanying
financial statements for the Company contributions under the Company's Common
Stock Purchase Plan.
NET INCOME PER SHARE
Net income per share (see Note 5) is calculated in accordance with Statement of
Financial Accounting Standards (SFAS) No. 128, "Earnings per Share." Basic net
income per share computations are based on the weighted average number of shares
of Common Stock outstanding. Diluted net income per share computations reflect
the assumed exercise of outstanding stock options based on the treasury stock
method as prescribed by SFAS No. 128.
USE OF ESTIMATES
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the amounts reported in the financial statements and accompanying notes.
Actual results could differ from those estimates.
ACCOUNTING PRONOUNCEMENTS
As of September 1, 1998, the Company adopted SFAS No. 130, "Reporting
Comprehensive Income" and during the fiscal quarter ended August 31, 1999 the
Company adopted SFAS No. 131, "Disclosures about Segments of an Enterprise and
Related Information" (see Note 16). These Statements have not had a material
effect on the consolidated financial statements.
The Financial Accounting Standards Board (FASB) issued SFAS No. 133 "Accounting
for Derivative Instruments and Hedging Activities" in 1998, but deferred the
effective date in SFAS No. 137, "Accounting for Derivative Instruments and
Hedging Activities: Deferral of the Effective Date of SFAS Statement No. 133."
This Statement will apply to all fiscal quarters of all fiscal years beginning
after June 15, 2000 and, when adopted by the Company, is not expected to have a
material effect on the consolidated financial statements.
NOTE 2: INVENTORIES
Inventories at August 31, 1999 and 1998 are summarized as follows:
<TABLE>
<CAPTION>
- ---------------------------------------------------------
August 31, 1999 1998
- ---------------------------------------------------------
<S> <C> <C>
Finished goods $10,606,473 $10,454,863
Work in process 198,093 257,055
Raw materials 10,326,444 7,510,482
Supplies 1,359,908 1,936,457
- ---------------------------------------------------------
Total $22,490,918 $20,158,857
- ---------------------------------------------------------
</TABLE>
16
<PAGE> 7
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
- --------------------------------------------------------------------------------
NOTE 3: LONG-TERM DEBT
At August 31, 1999, the Company had a credit agreement with its principal bank
(Mellon Bank, N.A.) providing for a $48,000,000 revolving credit facility
expiring on August 31, 2001 and under which $23,125,000 remained payable under
an eight-year term note repayable in equal quarterly installments, with final
maturity on August 31, 2004. At August 31, 1999, $9,785,000 of the revolving
credit facility remained available. Under the credit agreement, the Company
could choose between various interest rate options for specified interest
periods for both the revolving credit facility and the term note. The agreement
provided for a commitment fee of 0.125% per annum on the average daily
unborrowed funds under the revolving credit facility.
On September 23, 1999, the Company entered into a new $90,000,000 credit
agreement with its principal bank and another bank which provides for a
$45,000,000 revolving credit facility expiring on September 1, 2004 and
$45,000,000 in five-year term notes, under which the Company initially borrowed
$19,030,000 under the revolving credit facility and $45,000,000 under the term
notes. The term notes are repayable in quarterly installments of $1,125,000 with
a final payment of $22,500,000 in September 2004. The proceeds were used to
repay in full the outstanding borrowings under the credit agreement in effect at
August 31, 1999. Under the new credit agreement, the Company may also choose
between interest rate options for specified interest periods for both the
revolving credit facility and the term notes. The new credit agreement provides
for a facility fee of 0.25% per annum on each lender's commitment.
Long-term debt outstanding at August 31, 1999 and 1998 is summarized as set
forth below:
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------
Interest Rate at August 31,
August 31, 1999 1999 1998
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Notes under credit agreement with principal bank:
Variable rate revolving credit note 6.38% $38,215,000 $34,215,000
Variable rate term note payable in quarterly
installments through August 31, 2004 6.57% 23,125,000 27,750,000
Other long-term debt:
Variable rate industrial development bonds
subject to annual mandatory sinking fund
redemption through December 1, 2000, with
final payment on December 1, 2001 3.80% 2,025,000 2,450,000
Variable rate mortgage note payable in quarterly
installments through March 30, 2006 8.50% 562,511 645,843
Capital lease obligations payable in monthly
installments through May 25, 2005 8.00% 1,079,078 1,198,838
Other 5.75% 172,056 246,152
- ---------------------------------------------------------------------------------------------------------------------------
65,178,645 66,505,833
Less amounts due within one year, included in current liabilities 5,113,972 5,321,709
- ---------------------------------------------------------------------------------------------------------------------------
Total long-term debt $60,064,673 $61,184,124
===========================================================================================================================
</TABLE>
The outstanding borrowings by the Company under the new credit agreement are
unsecured. The credit agreement contains covenants that require the Company to
maintain a certain tangible net worth, as well as certain financial ratios.
These covenants also impose limitations on the amount that the Company may pay
during any fiscal year for property, plant and equipment, and business
acquisitions.
At August 31, 1999, approximately $8,600,000 of retained earnings was available
for the payment of cash dividends by the Company without causing a violation of
any of the financial covenants. The agreement relative to the Company's
industrial development bonds also contains financial covenants.
17
<PAGE> 8
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
- --------------------------------------------------------------------------------
Aggregate maturities of long-term debt during the next five fiscal years,
including payments under the new credit agreement, are as follows:
- ---------------------------------------------------------
August 31,
- ---------------------------------------------------------
2000 $5,113,972
2001 5,122,972
2002 5,882,488
2003 4,717,792
2004 4,728,833
=========================================================
At August 31, 1999, $33,125,000 of the Company's long-term debt was subject to
interest rate swap, cap and floor agreements with the Company's principal bank.
The purpose of these agreements is to reduce the impact of increases in interest
rates on the Company's variable rate long-term debt. The fair value of the
agreements is not material.
NOTE 4: COMMON STOCK
In all transactions involving the authorized but unissued shares of the
Company's Common Stock, an amount equal to $1.00 times the number of shares
which is issued is credited to the Common Stock account and the balance of the
purchase price is credited to the Capital Surplus account.
NOTE 5: NET INCOME PER SHARE
The following table sets forth the computation of basic and diluted net income
per common share in accordance with the provisions of SFAS No. 128, "Earnings
Per Share," for each of the three fiscal years ending August 31, 1999, 1998 and
1997:
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------
Year Ending August 31, 1999 1998 1997
- ------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Net income $11,729,124 $8,031,948 $9,295,261
- ------------------------------------------------------------------------------------------------
Weighted average common
shares outstanding--basic 9,494,648 9,488,436 9,452,082
Effect of dilutive securities
Stock options 75,554 168,147 167,157
- ------------------------------------------------------------------------------------------------
Weighted average common
shares outstanding--dilutive 9,570,202 9,656,583 9,619,239
- ------------------------------------------------------------------------------------------------
Basic net income per common share $ 1.24 $ 0.85 $ 0.98
- ------------------------------------------------------------------------------------------------
Diluted net income per common share $ 1.23 $ 0.83 $ 0.97
================================================================================================
</TABLE>
Securities not included in the computation of diluted earnings per share for
each period presented are as follows:
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------
Year Ending August 31, 1999 1998 1997
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Stock options 913,768 157,917 137,882
Option price range $12.82-$19.16 $ 19.16 $ 16.50
=================================================================================================
</TABLE>
The options to purchase shares of Common Stock not included in the computations
of diluted net income per share for the fiscal years ended August 31, 1999, 1998
and 1997 were excluded because the exercise price of the stock options was
greater than the average market price of the Company's Common Stock during the
periods.
18
<PAGE> 9
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
- --------------------------------------------------------------------------------
NOTE 6: SHAREHOLDER RIGHTS PLAN
In August 1998, the Company adopted a Shareholder Rights Plan under which the
holder of each share of the Company's outstanding Common Stock has an associated
preferred stock purchase right. The rights become exercisable to purchase shares
of a series of the Company's authorized Preferred Stock designated as the Series
A Junior Participating Preferred Stock under certain circumstances, and in the
event a person or group would acquire 20% or more of the Company's Common Stock,
the rights, if not previously redeemed, would entitle the holders (other than
such person or a member of such group) to purchase shares of the Common Stock or
Series A Junior Participating Preferred Stock of the Company or common shares of
an acquiring company at 50% of the respective shares' current fair market value.
The rights expire on August 31, 2008.
NOTE 7: SHARE REPURCHASE PLAN
In October 1998, the Company's Board of Directors authorized the repurchase of
up to 250,000 shares of the Company's Common Stock at prices not to exceed $15
per share through the end of the 1999 fiscal year. In August 1999, the
repurchase plan was extended through August 2000 with no increase in the maximum
number of shares that can be repurchased or maximum price per share to be paid.
Through August 31, 1999, the Company had purchased 123,850 shares of Common
Stock at prices ranging from $9.94 to $13.94 per share.
NOTE 8: STOCK OPTIONS
In December 1997, the Company's shareholders approved the 1997 Stock Incentive
Plan (the "1997 Plan") under which the Board of Directors may grant options to
purchase a total of 750,000 shares of the Company's Common Stock to key
employees of the Company and its subsidiaries and to the Company's non-employee
directors. At August 31, 1999, 205,900 shares remained available for the grant
of stock options under the 1997 Plan.
The Company also has a prior stock option plan under which options to purchase
shares of the Company's Common Stock granted to key employees of the Company and
its subsidiaries remain outstanding. No further stock options may be granted
under this plan.
All outstanding stock options have been granted at 100% of the fair market value
of the Company's Common Stock on the date of the grant. The stock options have
ten-year option terms. Except for stock options granted to employees in the
U.K., the option price may be paid in cash, in already-owned shares of the
Company's Common Stock held for at least one year, or in a combination of cash
and shares. Data concerning the outstanding stock options during each of the
fiscal years in the three-year period ended August 31, 1999 are as follows:
<TABLE>
<CAPTION>
1999 1998 1997
---------------------- ------------------ --------------------
WEIGHTED WEIGHTED WEIGHTED
AVERAGE AVERAGE AVERAGE
EXERCISE EXERCISE EXERCISE
SHARES PRICE SHARES PRICE SHARES PRICE
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Balance at September 1 768,595 $13.99 640,590 $12.08 566,565 $10.87
Options granted 554,100 12.83 202,700 18.92 153,975 14.96
Options exercised (36,720) 7.93 (46,470) 7.11 (63,975) 7.58
Options expired (19,200) 14.93 (28,225) 17.43 (15,975) 14.89
- ----------------------------------------------------------------------------------------------------------------------
Balance at August 31 1,266,775 $13.69 768,595 $13.99 640,590 $12.08
- ----------------------------------------------------------------------------------------------------------------------
Exercisable at August 31 722,675 $14.33 768,595 $13.99 640,590 $12.08
- ----------------------------------------------------------------------------------------------------------------------
</TABLE>
Stock options outstanding at August 31, 1999 are as follows:
<TABLE>
<CAPTION>
RANGE OF OPTIONS AT WEIGHTED AVERAGE WEIGHTED AVERAGE
EXERCISE PRICES AUGUST 31, 1999 EXERCISE PRICE REMAINING CONTRACTUAL LIFE
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
$5.17-$9.99 81,300 $7.38 1.6 years
$10.00-$14.99 876,625 12.72 7.8 years
$15.00-$19.16 308,850 18.07 7.3 years
- ----------------------------------------------------------------------------------------------------------------------
Total 1,266,775
======================================================================================================================
</TABLE>
19
<PAGE> 10
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
- --------------------------------------------------------------------------------
The following pro forma information regarding net income and basic net income
per share, required by SFAS No. 123 "Accounting and Disclosure of Stock-Based
Compensation," has been determined as if the Company had accounted for its
employee stock options under the fair value method of SFAS No. 123. The fair
value for the stock options is estimated at the date of grant using a
Black-Scholes option pricing model with the following assumptions: a risk-free
interest rate of 4.75%, 5.50% and 6.50% for the fiscal years ended August 31,
1999, 1998 and 1997, respectively; a volatility factor of the expected market
price of the Company's Common Stock of 0.31, 0.25 and 0.28 for the fiscal years
ended August 31, 1999, 1998 and 1997, respectively; a weighted average expected
option life of 10 years for the fiscal year ended August 31, 1999, and 7 years
for the fiscal years ended August 31, 1998 and 1997; and a 1.00% dividend yield.
For purposes of the pro forma disclosure, the estimated fair value of the
options granted ($5.67, $6.72, and $5.94 per share for the fiscal years ended
August 31, 1999, 1998 and 1997, respectively) is charged to expense over the
period during which the stock options vest. For the fiscal years ended August
31, 1999, 1998 and 1997, the Company's reported and pro forma net income and
basic and diluted net income per share are shown below:
<TABLE>
<CAPTION>
AS REPORTED: 1999 1998 1997
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Net income $11,729,124 $8,031,948 $9,295,261
Basic net income per common share $1.24 $0.85 $0.98
Diluted net income per common share $1.23 $0.83 $0.97
- -------------------------------------------------------------------------------------------
PRO FORMA:
- -------------------------------------------------------------------------------------------
Net income $10,898,604 $6,779,143 $8,380,312
Basic net income per common share $1.15 $0.71 $0.89
Diluted net income per common share $1.14 $0.70 $0.87
===========================================================================================
</TABLE>
NOTE 9: COMMON STOCK PURCHASE PLAN
The Company has a Common Stock Purchase Plan under which most full-time salaried
employees in the U.S. may participate. Employees may authorize salary deductions
up to 8% of annual salary but not to exceed $300 per month, and the Company
contributes an amount equal to 10% of the contributions of the participating
employees. The contributions are used to purchase shares of the Company's Common
Stock from the Company at current market value.
20
<PAGE> 11
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
- --------------------------------------------------------------------------------
NOTE 10: INCOME TAXES
For the fiscal years ended August 31, 1999, 1998 and 1997, income before income
taxes consists of the following:
- ---------------------------------------------------------
Year Ended
August 31, 1999 1998 1997
- ---------------------------------------------------------
U.S.
operations $19,479,484 $15,506,129 $16,251,615
Foreign
operations (619,909) (2,324,718) (810,353)
- ---------------------------------------------------------
Total $18,859,575 $13,181,411 $15,441,262
- ---------------------------------------------------------
The provision (benefit) for taxes on income consists of the following:
- ----------------------------------------------------------
Year Ended
August 31, 1999 1998 1997
- ----------------------------------------------------------
Current:
Federal $6,880,338 $5,780,529 $5,365,323
State 582,510 115,913 741,814
Foreign 213,494 21,232 47,450
- ----------------------------------------------------------
7,676,342 5,917,674 6,154,587
- ----------------------------------------------------------
Deferred:
Federal (162,891) (295,887) 197,229
State (187,841) (86,740) 76,002
Foreign (195,159) (385,584) (281,817)
- ----------------------------------------------------------
(545,891) (768,211) (8,586)
- ----------------------------------------------------------
Total $7,130,451 $5,149,463 $6,146,001
- ----------------------------------------------------------
The following is a reconciliation of the statutory U.S. corporate federal income
tax rate to the effective income tax rate:
- ---------------------------------------------------------
Year Ended
August 31, 1999 1998 1997
- ---------------------------------------------------------
U.S. statutory
rate applied to
pre-tax income 35.0% 35.0% 35.0%
State income taxes
net of federal
tax benefit 1.4% 2.4% 5.3%
Prior years' state
income tax
overaccruals -- (2.2%) --
Other 1.4% 3.9% (0.5%)
- ---------------------------------------------------------
37.8% 39.1% 39.8%
- ---------------------------------------------------------
Deferred tax assets and liabilities at August 31, 1999 and 1998 were comprised
of the following:
- -----------------------------------------------------------
August 31, 1999 1998
- -----------------------------------------------------------
Deferred income tax assets:
Allowance for
bad debts $ 263,127 $ 241,235
U.K. net operating
loss carry forwards 399,512 207,541
Deferred interest expense 392,546 376,707
Supplemental
pension benefits 503,072 502,304
Other 557,889 331,238
- -----------------------------------------------------------
Total 2,116,146 1,659,025
- -----------------------------------------------------------
Deferred income tax liabilities:
Depreciation 3,195,971 2,991,992
Other 43,548 345,011
- -----------------------------------------------------------
Total 3,239,519 3,337,003
- -----------------------------------------------------------
Net deferred
Income tax liability $1,123,373 $1,677,978
- -----------------------------------------------------------
The U.K. net operating loss carry forwards, which will be applied against future
taxable income, can be carried forward indefinitely.
NOTE 11: RETIREMENT BENEFITS
The Company maintains non-contributory individual account defined contribution
pension plans covering most employees in the U.S. and a contributory individual
account defined contribution pension plan covering most salaried employees in
the U.K. Under these pension plans, the Company contribution is 5.5% of total
compensation for most employees. Benefits generally do not become vested until,
but become fully vested upon, five full years of employment in the U.S. and two
full years of employment in the U.K. Normal retirement age under all plans is
age 65. The Company contributions for the fiscal years ended August 31, 1999,
1998 and 1997 were $2,321,219, $2,237,627 and $2,143,754, respectively.
The company also maintains Section 401 (k) plans covering most salaried and
non-union hourly employees in the U.S. The Company makes matching contributions
based upon the savings of participants, subject to certain limitations. All
contributions are made to the plan trustee, are fully vested and are invested by
the plan trustee among various investment options in accordance with
instructions from the participants. The Company contributions for the fiscal
years ended August 31, 1999, 1998 and 1997 were $202,753, $163,495 and $108,510,
respectively.
21
<PAGE> 12
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
- --------------------------------------------------------------------------------
The Company has an unfunded supplemental executive retirement plan under which
benefits will be paid by the Company directly to certain key employees following
their retirement. The Company's cost, which is based on a percentage of the
compensation of each participant plus interest, is accrued each fiscal quarter
and reflected as a long-term liability. For the fiscal years ended August 31,
1999, 1998 and 1997, the Company accrued $65,992, $63,837 and $58,959 in
connection with this plan.
In addition, certain former key employees of the Company or their beneficiaries
are receiving unfunded supplemental retirement benefits directly from the
Company, the future liability for which is also reflected as a liability. As of
August 31, 1999, the total liability for the supplemental retirement benefits
amounted to $1,088,192, of which $136,453 represents amounts payable within one
year. For the fiscal years ended August 31, 1999, 1998 and 1997, the Company
paid $119,788, $120,494 and $195,978 in connection with these arrangements.
The Company does not provide any other significant postretirement benefits.
NOTE 12: ACQUISITIONS
During the fiscal year ended August 31, 1999, the Company completed one
acquisition. In February 1999, the Company acquired the custom molding business,
including the associated real estate, of Berry Packaging, Inc. in Sallisaw,
Oklahoma. The aggregate purchase price, part of which will be paid to the seller
based on sales realized by the business acquired, is not material.
Expenditures in connection with business acquisitions in the fiscal year ended
August 31, 1998 were also not significant. During the fiscal year ended August
31, 1997, the Company completed five acquisitions. In September 1996, the
Company acquired the custom thermoforming business of FormPac Corporation in
Sandusky, Ohio; in October 1996, the Company acquired all the outstanding
capital stock of EPS (Moulders) Ltd., a custom foam molding business in
Livingston, Scotland; in April 1997, the Company acquired the custom
thermoforming business of Thermoformers Plus in Chula Vista, California; in May
1997, the Company acquired the integrated materials business of Allgood
Industries, Inc. in Hayward, California; and in July 1997, the Company acquired
all the outstanding capital stock of Arrowtip Group Ltd., a custom molded and
fabricated foam packaging business in London, England. The aggregate purchase
price recorded for these acquisitions during the 1997 fiscal year totaled
$16,694,434, including notes and other obligations payable and contingent
consideration. The amounts recorded as contingent consideration were based on
readily attainable sales and on a specified minimum payment amount, and in the
aggregate were not material.
All the acquisitions during the fiscal years ended August 31, 1999, 1998 and
1997 have been accounted for as purchases. The operating results of the
acquisitions are included in the Company's consolidated results of operations
from the date of acquisition. The combined operating results, including the
operating results of the acquired businesses had they been included at the
beginning of the fiscal year of acquisition, would not be materially different
from the consolidated results of operations as reported. During the fiscal years
ended August 31, 1999, 1998 and 1997, amounts have been allocated to goodwill in
connection with the Company's acquisitions as follows: 1999-$536,048;
1998-$967,566; and 1997-$5,065,420. Part of the purchase price in the Company's
acquisitions is sometimes allocated to covenants not to compete.
NOTE 13: LEASE COMMITMENTS
Rental expense charged to operations for the fiscal years ended August 31, 1999,
1998 and 1997 amounted to $6,597,043, $6,550,994 and $5,907,685, respectively.
The approximate net minimum rentals required to be paid under all non-cancelable
operating leases during each of the next five fiscal years is as follows:
- -----------------------------------
August 31,
- -----------------------------------
2000 $4,536,067
2001 3,756,277
2002 3,226,799
2003 2,883,233
2004 2,428,629
Thereafter 2,558,828
===================================
Substantially all these rental payments represent commitments under leases for
manufacturing and warehouse facilities and under leases for trucking equipment.
The Company has the option to purchase certain of the manufacturing and
warehouse facilities. The Company also has capital lease obligations that are
not significant.
22
<PAGE> 13
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
- --------------------------------------------------------------------------------
NOTE 14: RESTRUCTURING COSTS
In February 1998, the Company initiated a $3,500,000 restructuring plan to
reduce costs and increase future financial performance. The principal component
of the plan was a charge of $2,070,572 to cover the write-down of the carrying
values of certain property and equipment. The property and equipment write-downs
were a result of Company decisions to consolidate certain manufacturing
facilities and product design centers, to discontinue the manufacture of certain
products and to write off obsolete machinery and equipment.
The restructuring charge also included estimated employee termination costs of
$988,864 as approximately 30 employees were terminated or accepted an early
retirement package. The reduction included employees associated with the
Company's field sales, design, manufacturing, marketing and administrative
activities. The balance of approximately $400,000 related to other restructuring
costs associated with the plan. Approximately $411,000 of the restructuring
costs related to the U.K. operations.
The Company estimates that the cost savings resulting from the restructuring
charge during the fiscal years ended August 31, 1999 and 1998 amounted to
approximately $2.1 million and $1.1 million, respectively. Of these amounts, the
Company estimates the restructuring resulted in a reduction in cost of sales of
approximately $469,000 and $263,000 during the fiscal years ended August 31,
1999 and 1998, respectively, and a reduction in selling and administrative
expenses of approximately $1.7 million and $826,000 during the fiscal years
ended August 31, 1999 and 1998, respectively. Similar cost savings are expected
going forward except to the extent positions may be restored.
The restructuring was completed by the end of fiscal 1998 without any adjustment
to the restructuring charge. The cost savings have been substantially as
expected. At August 31, 1999, only $132,025 of the payments accrued in
connection with the restructuring remained to be paid. Payments will continue
until August 2002.
NOTE 15: CLAIMS AND CONTINGENCIES
A lawsuit seeking substantial compensatory and punitive damages as a result of
the alleged wrongful death of an employee was filed against the Company in
December 1996 and is scheduled for trial in June 2000. In addition, a number of
legal and administrative proceedings against the Company involving claims of
employment discrimination are pending. In the opinion of management, the
disposition of these proceedings should not have a material adverse effect on
the Company's financial position or results of operations.
NOTE 16: BUSINESS SEGMENTS
The Company currently operates in a single business segment as a designer and
manufacturer of protective packaging, material handling solutions and
componentry. The Company has product design, sales and manufacturing operations
in the U.S. and the U.K., along with sales and manufacturing operations in
Maquiladora zones in Mexico. The geographic distribution of net sales and
operating income (loss) for the fiscal years ended August 31, 1999, 1998 and
1997 and of long-lived assets at August 31, 1999, 1998 and 1997 is set forth
below. A portion of U.S. selling expenses has been allocated to the Mexican
operations for all periods presented since a majority of the design and selling
activity for the Mexican operations is performed by U.S. personnel. Operating
income (loss) is gross profit less selling and administrative expenses.
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------
August 31, 1999 1998 1997
- ------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Net Sales
United States $191,732,957 $193,470,452 $178,587,326
United Kingdom 23,909,889 25,696,670 21,078,007
Mexico 18,198,154 13,735,088 9,541,442
- ------------------------------------------------------------------------------------------
Total $233,841,000 $232,902,210 $209,206,775
- ------------------------------------------------------------------------------------------
Operating Income (Loss)
United States $ 22,935,788 $ 23,452,719 $ 18,087,518
United Kingdom (407,436) (2,043,964) (34,582)
Mexico 717,811 153,507 1,565,755
- ------------------------------------------------------------------------------------------
Total $ 23,246,163 $ 21,562,262 $ 19,618,691
- ------------------------------------------------------------------------------------------
Long-lived Assets
United States $ 86,379,603 $ 83,781,953 $ 85,431,006
United Kingdom 17,044,811 18,215,968 16,284,156
Mexico 9,527,409 8,361,718 4,078,411
- ------------------------------------------------------------------------------------------
Total $112,951,823 $110,359,639 $105,793,573
- ------------------------------------------------------------------------------------------
</TABLE>
23
<PAGE> 14
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
- --------------------------------------------------------------------------------
NOTE 17: SUBSEQUENT EVENT
In September 1999, the Company purchased the principal business and operating
assets of Lane Container Company of Dallas, Texas. Lane Container has particular
expertise in specialty corrugated containers, heavy wall corrugated fabrication
and custom wood crating services and is expected to add in excess of $8.0
million of new revenues in fiscal 2000. The Company will continue the business
acquired at the same location under a lease with a third party. The
consideration paid consisted of cash and assumed liabilities as well as
additional cash consideration which may be paid to the seller based on certain
sales made by the business acquired. The acquisition was accounted for as a
purchase and a portion of the purchase price was allocated to goodwill.
NOTE 18: QUARTERLY FINANCIAL DATA (UNAUDITED)
Summarized quarterly financial information is as follows:
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
Fiscal Quarter Ended
November 30 February 28 May 31 August 31
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
FISCAL 1999:
Net Sales $60,466,000 $53,641,000 $59,703,000 $60,031,000
Gross Profit 15,087,000 12,014,000 13,695,000 14,410,000
Net Income 3,964,000 1,892,000 2,999,000 2,874,000
Per Share of Common Stock:
Basic net income $0.42 $0.20 $0.32 $0.30
Diluted net income $0.41 $0.20 $0.31 $0.30
Dividends paid -- $0.12 -- $0.12
Stock market prices:
High 14-1/2 14-1/2 13-3/4 14
Low 10 12-1/4 8-1/2 10-7/16
- ---------------------------------------------------------------------------------------------------------------------
November 30 February 28 May 31 August 31
- ---------------------------------------------------------------------------------------------------------------------
FISCAL 1998:
Net Sales $61,292,000 $55,919,000 $59,608,000 $56,083,000
Gross Profit 15,099,000 11,404,000 13,178,000 13,077,000
net income 3,772,000 (889,000) 2,570,000 2,579,000
Per Share of Common Stock:
Basic net income $0.40 ($0.09) $0.27 $0.27
Diluted net income $0.39 ($0.09) $0.27 $0.27
Dividends paid -- $0.11 -- $0.11
Stock market prices:
High 21-3/8 18-1/2 16-1/2 16-1/4
Low 17 13-3/8 15-3/8 14-3/8
=====================================================================================================================
</TABLE>
24
<PAGE> 15
REPORT OF INDEPENDENT AUDITORS MANAGEMENT'S DISCUSSION AND ANALYSIS OF
RESULTS OF OPERATIONS AND FINANCIAL CONDITION
- --------------------------------------------------------------------------------
TO THE BOARD OF DIRECTORS AND SHAREHOLDERS
OF TUSCARORA INCORPORATED
We have audited the accompanying consolidated balance sheets of Tuscarora
Incorporated and subsidiaries as of August 31, 1999 and 1998, and the related
consolidated statements of income, shareholders' equity, and cash flows for each
of the three years in the period ended August 31, 1999. 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 consolidated financial statement
presentation. We believe that our audits provide a reasonable basis for our
opinion.
In our opinion, the consolidated financial statements referred to above present
fairly, in all material respects, the consolidated financial position of
Tuscarora Incorporated and subsidiaries as of August 31, 1999 and 1998, and the
consolidated results of their operations and their cash flows for each of the
three years in the period ended August 31, 1999, in conformity with generally
accepted accounting principles.
/s/ Ernst & Young LLP
Ernst & Young LLP
Pittsburgh, PA
October 15, 1999
RESULTS OF OPERATIONS--FISCAL 1999
COMPARED TO FISCAL 1998
Net sales for the fiscal year ended August 31, 1999 were $233.8 million, an
increase of $939,000, or 0.4% over fiscal 1998. The increase in net sales is due
to a small acquisition in July 1998 and to the acquisition of Berry Packaging,
Inc. in Sallisaw, Oklahoma in February 1999 and to higher sales levels in the
consumer electronics and high technology industries in the last half of fiscal
1999. The overall increase in net sales was achieved despite modestly lower
selling prices to customers through the first three quarters of the fiscal year
as the Company passed on lower EPS resin costs to certain customers, lower sales
to certain customers in the major appliance and high technology industries in
the first and second quarters of the fiscal year and lower sales in the United
Kingdom.
Net sales in the fourth quarter of fiscal 1999 were $60.0 million compared to
$56.1 million in the same period last year, an increase of 7.0%. The fourth
quarter was the only quarter during fiscal 1999 when the net sales were not less
than or substantially the same as in the corresponding quarter of the prior
fiscal year. The increase in net sales for the quarter was due primarily to
significantly higher sales in the high technology industry and to higher selling
prices to customers due to an increase in the cost of EPS resin that became
effective during the quarter.
Gross profit for the fiscal year ended August 31, 1999 was $55.2 million, or
23.6% of net sales, compared to $52.8 million, or 22.7% of net sales, in fiscal
1998. The increase in gross profit margin for the fiscal year is due primarily
to improved operating efficiencies at several key manufacturing facilities,
including those in the U.K., and to the lower EPS raw material costs when
compared to the prior fiscal year.
Selling and administrative expenses for the fiscal year ended August 31, 1999
increased 2.4%, or $764,000, to $32.0 million and increased slightly as a
percentage of net sales to 13.7% from 13.4% in the previous fiscal year. The
dollar increase was due primarily to higher employee costs added in the latter
half of the fiscal year. Through the first three quarters of fiscal 1999 the
selling and administrative expenses were less than in the corresponding quarters
of the prior fiscal year due to the restructuring initiative taken in fiscal
1998 (see Note 14 of the Notes to Consolidated Financial Statements).
25
<PAGE> 16
- --------------------------------------------------------------------------------
Net sales and operating loss for the U.K. operations for the twelve months ended
August 31, 1999 were $23.9 million and $407,000, respectively, compared to $25.7
million and $2.0 million, respectively, in fiscal 1998. The operating loss
during the 1999 fiscal year was substantially less than during the prior fiscal
year due to the improved operating efficiencies referred to above.
Interest expense for the fiscal year ended August 31, 1999 was $4.6 million
compared to $4.9 million in fiscal 1998. The decrease of $325,000 was due to a
slightly lower level of outstanding debt and to lower interest rates when
compared to the prior fiscal year.
Income before income taxes for fiscal 1999 increased to $18.9 million from $13.2
million in fiscal 1998, an increase of 43.1%. The substantial increase was due
to the increased gross profit and the effect of the restructuring charge in
fiscal 1998.
The Company's effective tax rate decreased to 37.8% from 39.1% in fiscal 1998
due primarily to a lower effective state income tax rate.
Net income for the fiscal year ended August 31, 1999 was $11.7 million, an
increase of 46.0% from the $8.0 million earned in fiscal 1998. The increase was
due primarily to the increase in 1999 gross profit and the restructuring charge
taken in fiscal 1998.
RESULTS OF OPERATIONS--FISCAL 1998 COMPARED TO FISCAL 1997
Net sales for the fiscal year ended August 31, 1998 were $232.9 million, an
increase of $23.7 million, or 11.3% over fiscal 1997. Approximately 59% of the
increase in net sales was attributable to the following acquisitions made in
fiscal 1997: the acquisition of two custom molding businesses in the U.K. in
October 1996 and July 1997, the acquisition of an integrated materials business
in the U.S. in May 1997 and the acquisition of a thermoforming business in the
U.S. in April 1997 (see Note 12 of the Notes to Consolidated Financial
Statements). The balance of the increase in net sales was attributable to higher
sales in the Company's existing core custom molding operations and the
thermoforming operations. The sales increase was achieved despite slightly lower
sales at the Company's existing integrated materials operations and some
reduction in selling prices compared to the prior fiscal year resulting from
lower EPS raw material costs.
Net sales in the fourth quarter of fiscal 1998 were $56.1 million compared to
$54.2 million in fiscal 1997, an increase of 3.5%. The fiscal year over prior
fiscal year growth rate in net sales in the fourth quarter was well below the
growth rate in the three previous quarters of fiscal 1998, principally because
sales from the businesses acquired in May and July 1997 had little effect, year
over year, on sales increases in the quarter.
Gross profit for the fiscal year ended August 31, 1998 was $52.8 million, or
22.7% of net sales, compared to $48.3 million, or 23.1% of net sales, in fiscal
1997. The decrease in gross profit margin for the fiscal year was due primarily
to continued well-below-objective gross profit margins at the Company's U.K.
facilities.
Slower than anticipated demand from certain of the Company's high technology
customers, particularly as it affected the start up of the Company's new plant
in Brenham, Texas, also adversely affected gross profit. The decrease in gross
profit margin occurred despite lowering EPS raw material costs throughout the
period, compared to the prior fiscal year.
Selling and administrative expenses for the fiscal year ended August 31, 1998
increased 8.9%, or $2.6 million, to $31.2 million but decreased slightly as a
percentage of net sales to 13.4% from 13.7% in the previous fiscal year. The
dollar increase was due primarily to increased employee and other costs added in
connection with the acquisitions of the businesses in October 1996 and May and
July 1997. A dollar decrease in the six-month period ended August 31, 1998,
compared to the six-month period ended February 28, 1998, was due primarily to a
$3.5 million restructuring plan initiated in February 1998 (see Note 14 of the
Notes to Consolidated Financial Statements).
26
<PAGE> 17
- --------------------------------------------------------------------------------
Net sales and operating loss for the U.K. operations for the twelve months ended
August 31, 1998 were $25.7 million and $2.0 million, respectively, compared to
$21.1 million and $35,000, respectively, in fiscal 1997.
Interest expense for the fiscal year ended August 31, 1998 was $4.9 million
compared to $3.7 million in fiscal 1997. The increase of $1.2 million was due to
a higher level of outstanding debt throughout the year, primarily as a result of
additional borrowings to finance the business acquisitions in fiscal 1997 and
capital expenditures in fiscal 1998.
Income before income taxes for fiscal 1998 decreased to $13.2 million from $15.4
million in fiscal 1997, a decrease of 14.6%. The decrease is due to the $3.5
million restructuring charge.
The Company's effective tax rate decreased to 39.1% from 39.8% in fiscal 1997. A
lower effective state income tax rate accompanied by overaccruals of prior
years' state income taxes was offset by lower income tax benefits resulting from
the operating loss in the U.K.
Net income for the fiscal year ended August 31, 1998 was $8.0 million, a
decrease of 13.6% from the $9.3 million earned in fiscal 1997. The decrease was
due to the effect of the restructuring charge.
LIQUIDITY AND CAPITAL RESOURCES
Net cash provided by operating activities amounted to $27.3 million, $21.7
million and $21.0 million in fiscal 1999, 1998 and 1997, respectively.
Depreciation and amortization in fiscal 1999, 1998 and 1997 amounted to $17.6
million, $17.2 million and $15.3 million, respectively. Because a substantial
portion of the Company's operating expenses is attributable to depreciation and
amortization, the Company believes that its liquidity would not be adversely
affected should a period of reduced earnings occur.
At August 31, 1999, inventories were higher than at the end of the previous
fiscal year due to higher than normal purchases of raw materials during the
latter part of the fourth quarter as a result of the announced price increases
by the Company's raw material suppliers.
Capital expenditures for property, plant and equipment during fiscal 1999, 1998
and 1997 amounted to $19.5 million, $24.2 million and $21.3 million,
respectively, including approximately $900,000, $1.3 million and $1.5 million,
respectively, for environmental control equipment. The largest amount of the
capital expenditures during all three years has been for machinery and
equipment. For fiscal 1999, the expenditures included expenditures for the
purchase of the Company's custom EPS molding facility in Lewisburg, Tennessee,
which was previously leased; expenditures for leasehold improvements and
machinery and equipment for custom molding capabilities at the Company's
existing integrated materials facility in Hayward, California; expenditures for
significant plant modernization and machinery and equipment upgrades at the
custom molding facility in Sallisaw, Oklahoma acquired during the fiscal year
(see the following paragraph); and expenditures for installation of new molding
capabilities in Brenham, Texas.
In February 1999, the Company acquired the custom molding business of Berry
Packaging, Inc. in Sallisaw, Oklahoma for cash (see Note 12 of the Notes to
Consolidated Financial Statements) and on September 1, 1999, the Company
acquired the principal business and operating assets of Lane Container Company
in Dallas, Texas (see Note 17 of the Notes to Consolidated Financial
Statements). The Company will continue to look for acquisitions which will mesh
well with the Company's business. The aggregate amount of cash paid in
connection with the Company's business acquisitions, net of cash acquired,
during fiscal 1999, 1998 and 1997 amounted to $3.1 million, $1.1 million and
$14.1 million, respectively.
27
<PAGE> 18
- --------------------------------------------------------------------------------
Long-term debt decreased from $61.2 at August 31, 1998 to $60.1 million at
August 31, 1999, of which $56.7 million was borrowed under a credit agreement
with the Company's principal bank, including $38.2 million out of an available
$48.0 million under a revolving credit facility. During the twelve months ended
August 31, 1999, $4.0 million was borrowed under the revolving credit facility
primarily to fund capital expenditures during the fiscal year and for working
capital.
On September 23, 1999, the Company entered into a new credit agreement with its
principal bank and a second bank. The new agreement provides for a revolving
credit facility of $45.0 million and $45.0 million in five-year term-notes.
Proceeds from the term notes and amounts borrowed under the new revolving credit
facility were used to pay the outstanding balance under the existing credit
agreement. See Note 3 of the Notes to Consolidated Financial Statements for
additional information with respect to long-term debt.
Cash dividends amounted to $2.3 million ($0.24 per share), $2.1 million ($0.22
per share) and $1.8 million ($0.19 per share) in fiscal 1999, 1998 and 1997,
respectively.
Cash provided by operating activities as supplemented by the amount available
under the new bank credit agreement should continue to be sufficient to fund the
Company's operating needs, capital requirements and dividend payments.
MARKET RISKS
The Company is exposed to market risk from changes in interest rates and foreign
exchange rates.
The Company's primary interest rate risk relates to its long-term debt
obligations. At August 31, 1999, the Company had total long-term debt
obligations, including the current portion of these obligations of $65,178,645.
Of this amount, only $1,251,135 was in fixed rate obligations. The average
interest rate on the Company's variable rate obligations decreased during the
1999 fiscal year; however, increases may occur during the 2000 fiscal year.
Assuming a hypothetical 10% increase in the interest rate on the Company's
variable rate obligations (i.e., an increase from the August 31, 1999 weighted
average interest rate of 6.41% to a weighted average interest rate of 6.87%),
annual interest expense would be increased by approximately $294,066 based on
the August 31, 1999 outstanding balance of variable rate obligations.
The Company has entered into interest rate swap, cap and floor agreements with
its principal bank to hedge against the market risk of such an interest rate
increase. The combined notional value under these agreements at August 31, 1999
amounted to $33,125,000. The additional interest expense associated with these
agreements during the 1999 fiscal year was not material. If the variable rate
would exceed 6.8% during the 2000 fiscal year, the Company will receive a
benefit under one of the agreements (i.e., a reduction in its interest expense).
A substantial majority of the Company's sales and earnings are transacted in
U.S. dollars. This includes substantially all the sales resulting from the
Mexican operations. As to the operations in the U.K., for fiscal 1999 net sales
denominated in U.K. pounds sterling totaled $23.9 million or approximately 10%
of the Company's net sales. The average exchange rate during fiscal 1999 was
1.64 U.S. dollars per U.K. pound sterling. Assuming a hypothetical adverse
change of 10% in such average exchange rate from 1.64 to 1.49, the net sales of
the U.K. operations would have decreased by $2.4 million and the operating loss
of these operations would have decreased by $41,000 for fiscal 1999.
The subsidiaries that operate in the U.K. and Mexico have amounts payable
denominated in U.S. dollars in addition to amounts payable denominated in U.K.
pounds sterling and Mexican pesos which can act to mitigate the impact of
foreign exchange rate changes. The Company has not entered into any foreign
currency exchange contracts to hedge against the exchange rate risk.
The market risks described above are substantially the same as at the end of
fiscal 1998.
28
<PAGE> 19
- --------------------------------------------------------------------------------
OUTLOOK
While the Company's net sales declined in the first half of fiscal 1999,
considerable momentum was built in the second half of the fiscal year in both
revenues and profitability. That strength, coupled with the acquisitions made in
February and September 1999, should be sufficient to boost revenues and
profitability in fiscal 2000. While progress was made toward improving the
profitability of the Company's U.K. operations as well as underperforming
facilities in North America, management will continue to focus its efforts on
these operations in fiscal 2000. Management believes that, while significant
improvement is still necessary, the U.K. operations should show a positive
operating income for fiscal 2000.
Capital expenditures for fiscal 2000 are expected to approximate the capital
expenditures during fiscal 1999 and, while the Company will continue to look for
acquisition opportunities, no significant acquisitions are presently being
negotiated.
While no new production sites are presently contemplated, the Company recently
established a distribution facility in Dublin, Ireland, which is currently being
supplied by the Company's plants in England and Scotland and hopes to expand its
operations at this facility in fiscal 2000. The Company is also exploring
opportunities to serve high technology customers in Guadalajara, Mexico.
YEAR 2000 COMPLIANCE
The Company has completed its assessment of the possible effect on the Company
and its business of a malfunction of computers and other equipment with computer
microchip processors that cannot properly process dates after December 31, 1999.
The scope of the Company's efforts included (i) an evaluation of the Company's
business information systems and manufacturing machinery and equipment,
primarily its custom molding machines, (ii) an evaluation of the Year 2000
readiness of the Company's major raw material suppliers to determine if the
Company should anticipate any problems in obtaining the Company's needed raw
materials and (iii) an evaluation of significant customers whose Year 2000
readiness could cause a loss of business that might be material to the Company.
The Company converted its financial systems software to AS/400 based J.D.
Edwards software which is Year 2000 compliant and upgraded its payroll,
manufacturing and informational support systems. Hundreds of computers
throughout the Company were tested and repaired or replaced as necessary. The
Company successfully entertained Year 2000 assessment visits from some of its
largest customers. The Company believes its business information systems and
manufacturing machinery and equipment are Year 2000 compliant.
All major raw material suppliers were contacted regarding their Year 2000
readiness and responded. Based on the information received, the Company does not
anticipate there will be problems in obtaining necessary raw materials.
Customers representing approximately 75% of the Company's total sales were
contacted concerning their Year 2000 readiness as well, and responses were
received from approximately 89% of the customers contacted. No negative
responses were received.
The Year 2000 readiness of third parties is beyond the Company's control and,
although not anticipated, the most reasonably likely worst case scenario of
failure of the Company's key suppliers and customers to resolve their Year 2000
issues would be a short-term shutdown of manufacturing operations at one or more
of the Company's facilities. In order to minimize the risk of failure of third
parties to correct their Year 2000 issues in a timely manner, the Company has
completed a contingency plan that would be put into effect in case such an event
were to occur. The plan includes maintaining an inventory of raw materials and
finished goods, purchasing raw materials from a number of raw material suppliers
and a plan to quickly move manufacturing machinery and/or production molds from
any plants that might be rendered inoperative to other similar plants to fulfill
production requirements.
Primarily because the Year 2000 readiness of third parties is beyond the
Company's control, the Company, like others, is vulnerable to business
disruption, financial loss and other risks. Management believes, however, based
on its own investigation and the information it has obtained, that any problems
that might arise in connection with the Year 2000 issue should be resolved
without materially affecting the Company's business, results of operations or
financial condition. The cost to the Company of assessing and remediating Year
2000 issues has not been, and is not expected to be, significant.
29
<PAGE> 20
- --------------------------------------------------------------------------------
OTHER
The impact of inflation on both the Company's financial position and results of
operations has been minimal and is not expected to adversely affect fiscal 2000
results.
In 1998, the FASB issued SFAS No. 133, "Accounting for Derivative Instruments
and Hedging Activities." In 1999, the FASB issued SFAS No. 137 "Accounting for
Derivative Instruments and Hedging Activities: Deferral of the Effective Date of
SFAS Statement No. 133." This Statement defers for one year the effective date
of SFAS No. 133. This Statement will apply to all fiscal quarters of all fiscal
years beginning after June 15, 2000, and when adopted by the Company, is not
expected to have a material effect on the consolidated financial statements.
FORWARD-LOOKING STATEMENTS
This Management's Discussion and Analysis of Results of Operations and Financial
Condition and the Notes to Consolidated Financial Statements contain, in
addition to historical information, certain forward-looking statements. Such
statements (which are typically identified by the words "believe," "should,"
"expect," "anticipate," and other expressions that look to the future) are based
on assumptions and expectations which, although believed to be reasonable based
on information available to the Company, are inherently subject to risks and
uncertainties and which, consequently, may or may not be realized. The risks and
uncertainties inherent in the assumptions and expectations could be material,
and include, but are not limited to, economic and market conditions, the impact
of competition, consumer buying trends, pricing trends, fluctuations in the cost
and availability of raw materials and the ability to maintain favorable customer
and supplier relationships and arrangements. The Company undertakes no
obligation to update or revise any forward-looking statements.
30
<PAGE> 21
ELEVEN YEAR CONSOLIDATED FINANCIAL SUMMARY
<TABLE>
<CAPTION>
YEAR ENDED AUGUST 31, 1999 1998 1997 1996 1995
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Net sales $233,841 $232,902 $209,207 $182,590 $163,300
- ------------------------------------------------------------------------------------------------------------------
Income before income taxes 18,860 13,181(a) 15,44 15,905 15,034
- ------------------------------------------------------------------------------------------------------------------
Net income 11,729 8,032(a) 9,295 9,653 8,980
- ------------------------------------------------------------------------------------------------------------------
Depreciation and amortization 17,281 17,231 15,286 12,977 10,890
- ------------------------------------------------------------------------------------------------------------------
Weighted average shares outstanding--basic 9,495 9,488 9,452 9,362 9,231
- ------------------------------------------------------------------------------------------------------------------
Basic net income per share 1.24 0.85(a) 0.98 1.03 0.97
- ------------------------------------------------------------------------------------------------------------------
Diluted net income per share 1.23 0.83(a) 0.97 1.01 0.96
- ------------------------------------------------------------------------------------------------------------------
Margin on sales 5.0% 3.4% 4.4% 5.3% 5.5%
- ------------------------------------------------------------------------------------------------------------------
Return on beginning shareholders' equity 14.7% 11.0% 14.3% 17.6% 19.0%
- ------------------------------------------------------------------------------------------------------------------
Working capital 37,273 34,859 29,784 23,224 22,390
- ------------------------------------------------------------------------------------------------------------------
Total assets 177,386 172,166 162,388 131,169 117,721
- ------------------------------------------------------------------------------------------------------------------
Long-term debt (excluding current portion) 60,065 61,184 57,166 39,249 36,510
- ------------------------------------------------------------------------------------------------------------------
Shareholders' equity 86,684 79,524 72,817 64,827 54,773
- ------------------------------------------------------------------------------------------------------------------
Shareholders' equity per share 9.13 8.38 7.70 6.92 5.93
- ------------------------------------------------------------------------------------------------------------------
Dividends per share 0.24 0.22 0.19 0.17 0.15
- ------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
YEAR ENDED AUGUST 31, 1994 1993 1992 1991 1990 1989
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Net sales $120,085 $101,075 $95,809 $84,420 $85,458 $77,642
- --------------------------------------------------------------------------------------------------------------------------------
Income before income taxes 9,017 6,285 8,289 6,856 7,912 7,479
- --------------------------------------------------------------------------------------------------------------------------------
Net income 5,703 4,270(b) 4,981 4,230 4,874 4,478
- --------------------------------------------------------------------------------------------------------------------------------
Depreciation and amortization 9,721 9,206 7,879 7,235 6,591 5,463
- --------------------------------------------------------------------------------------------------------------------------------
Weighted average shares outstanding--basic 9,194 9,164 9,146 9,086 9,033 9,030
- --------------------------------------------------------------------------------------------------------------------------------
Basic net income per share 0.62 0.47(b) 0.54 0.47 0.54 0.50
- --------------------------------------------------------------------------------------------------------------------------------
Diluted net income per share 0.61 0.46(b) 0.54 0.46 0.53 0.49
- --------------------------------------------------------------------------------------------------------------------------------
Margin on sales 4.7% 4.2% 5.2% 5.0% 5.7% 5.8%
- --------------------------------------------------------------------------------------------------------------------------------
Return on beginning shareholders' equity 13.4% 10.9% 14.2% 13.4% 17.8% 19.0%
- --------------------------------------------------------------------------------------------------------------------------------
Working capital 16,548 15,893 13,463 13,728 11,385 11,418
- --------------------------------------------------------------------------------------------------------------------------------
Total assets 94,225 79,769 75,510 63,775 60,677 53,138
- --------------------------------------------------------------------------------------------------------------------------------
Long-term debt (excluding current portion) 25,284 23,930 22,121 14,870 16,264 13,165
- --------------------------------------------------------------------------------------------------------------------------------
Shareholders' equity 47,180 42,546 39,280 35,152 31,451 27,360
- --------------------------------------------------------------------------------------------------------------------------------
Shareholders' equity per share 5.13 4.64 4.29 3.87 3.48 3.03
- --------------------------------------------------------------------------------------------------------------------------------
Dividends per share 0.13 0.12 0.11 0.09 0.09 0.08
- --------------------------------------------------------------------------------------------------------------------------------
</TABLE>
In the above table, all dollar amounts, except per share data, are in thousands.
The weighted average number of shares of Common Stock outstanding and the
dividends and other per share amounts have been adjusted to reflect the 100%
share distribution paid on April 14, 1992 and the 50% share distribution paid on
January 13, 1997.
(a) Income before income taxes, net income and net income per share amounts for
the 1998 fiscal year include the effect of a nonrecurring, pre-tax charge of
$3,495,336 for restructuring costs. (See Note 14 to the financial statements.)
(b) Net income and net income per share for the 1993 fiscal year include income
of $321,218 or $0.03 per share resulting from the cumulative effect of a change
in the method of accounting for income taxes.
<PAGE> 1
Exhibit 21
TUSCARORA INCORPORATED
List of Subsidiaries
The following is a complete list of the subsidiaries of the Company.
Name of Jurisdiction of
Subsidiary Incorporation
- ------------------------------------------ ------------------
Alpine Packaging, Inc.(1) Colorado
Tuscarora Investment Corporation(1) Delaware
Tuscarora International, Inc.(1) Delaware
Tuscarora, S.A. de C.V.(2) Mexico
Tuscarora de Mexico, S.A. de C.V.(2) Mexico
Tuscarora Limited(1) England
Tuscarora (Scotland) Limited(3) England
Tuscarora (London) Limited(3) England
Arrowtip Limited(4) England
Anglican Expanded
Products Limited(4) England
- --------------------
(1) 100% owned by Tuscarora Incorporated.
(2) All but one share is owned by Tuscarora International, Inc. and 1 share
is owned by Tuscarora Incorporated.
(3) 100% owned by Tuscarora Limited.
(4) 100% owned by Tuscarora (London) Limited.
<PAGE> 1
Exhibit 23
Consent of Ernst & Young LLP
We consent to the incorporation by reference in this Annual Report on Form 10-K
of Tuscarora Incorporated of our report dated October 15, 1999 included in the
Annual Report to Shareholders of Tuscarora Incorporated for the fiscal year
ended August 31, 1999.
Our audits also included the financial statement schedule of Tuscarora
Incorporated listed in Item 14(a)(2). This schedule is the responsibility of the
Company's management. Our responsibility is to express an opinion based on our
audits. In our opinion, the financial statement schedule referred to, when
considered in relation to the basic financial statements taken as a whole,
presents fairly in all material respects the information set forth therein.
We also consent to the incorporation by reference in Registration Statements on
Form S-8 (Nos. 33-35373 and 333-06111) pertaining to the 1989 Stock Incentive
Plan of Tuscarora incorporated; Form S-8 (No. 333-57833) pertaining to the 1997
Stock Incentive Plan of Tuscarora Incorporated; and Form S-8 (No. 333-35587)
pertaining to the Tuscarora Incorporated Common Stock Purchase Plan for Salaried
Employees of our report dated October 15, 1999 with respect to the financial
statements incorporated herein by reference, and our report included in the
preceding paragraph with respect to the financial statement schedule included in
this Annual Report (Form 10-K) of Tuscarora Incorporated.
/s/ Ernst & Young LLP
--------------------------------
Ernst & Young LLP
Pittsburgh, Pennsylvania
November 24, 1999
<PAGE> 1
Exhibit 24
POWER OF ATTORNEY
NOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints John P. O'Leary, Jr. and Brian C. Mullins, and each of them, the
undersigned's true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign the Annual Report on
Form 10-K for the fiscal year ended August 31, 1999 of Tuscarora Incorporated,
and any and all amendments thereto, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as the
undersigned might or could do in person and hereby ratifying and confirming all
that said attorneys-in-fact and agents or any of them, or their or his or her
substitutes, may lawfully do or cause to be done by virtue hereof
October 18, 1999 /s/ Thomas S. Blair
-----------------------------
Thomas S. Blair
<PAGE> 2
POWER OF ATTORNEY
NOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints John P. O'Leary, Jr. and Brian C. Mullins, and each of them, the
undersigned's true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign the Annual Report on
Form 10-K for the fiscal year ended August 31, 1999 of Tuscarora Incorporated,
and any and all amendments thereto, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as the
undersigned might or could do in person and hereby ratifying and confirming all
that said attorneys-in-fact and agents or any of them, or their or his or her
substitutes, may lawfully do or cause to be done by virtue hereof
October 18, 1999 /s/ David I. Cohen
-----------------------------
David I. Cohen
<PAGE> 3
POWER OF ATTORNEY
NOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints John P. O'Leary, Jr. and Brian C. Mullins, and each of them, the
undersigned's true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign the Annual Report on
Form 10-K for the fiscal year ended August 31, 1999 of Tuscarora Incorporated,
and any and all amendments thereto, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as the
undersigned might or could do in person and hereby ratifying and confirming all
that said attorneys-in-fact and agents or any of them, or their or his or her
substitutes, may lawfully do or cause to be done by virtue hereof
October 18, 1999 /s/ Abe Farkas
-----------------------------
Abe Farkas
<PAGE> 4
POWER OF ATTORNEY
NOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints John P. O'Leary, Jr. and Brian C. Mullins, and each of them, the
undersigned's true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign the Annual Report on
Form 10-K for the fiscal year ended August 31, 1999 of Tuscarora Incorporated,
and any and all amendments thereto, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as the
undersigned might or could do in person and hereby ratifying and confirming all
that said attorneys-in-fact and agents or any of them, or their or his or her
substitutes, may lawfully do or cause to be done by virtue hereof
October 18, 1999 /s/ Karen L. Farkas
-----------------------------
Karen L. Farkas
<PAGE> 5
POWER OF ATTORNEY
NOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints John P. O'Leary, Jr. and Brian C. Mullins, and each of them, the
undersigned's true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign the Annual Report on
Form 10-K for the fiscal year ended August 31, 1999 of Tuscarora Incorporated,
and any and all amendments thereto, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as the
undersigned might or could do in person and hereby ratifying and confirming all
that said attorneys-in-fact and agents or any of them, or their or his or her
substitutes, may lawfully do or cause to be done by virtue hereof
October 18, 1999 /s/ Robert W. Kampmeinert
-----------------------------
Robert W. Kampmeinert
<PAGE> 6
POWER OF ATTORNEY
NOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints John P. O'Leary, Jr. and Brian C. Mullins, and each of them, the
undersigned's true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign the Annual Report on
Form 10-K for the fiscal year ended August 31, 1999 of Tuscarora Incorporated,
and any and all amendments thereto, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as the
undersigned might or could do in person and hereby ratifying and confirming all
that said attorneys-in-fact and agents or any of them, or their or his or her
substitutes, may lawfully do or cause to be done by virtue hereof
October 18, 1999 /s/ Jeffrey L. Leininger
-----------------------------
Jeffrey L. Leininger
<PAGE> 7
POWER OF ATTORNEY
NOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints John P. O'Leary, Jr. and Brian C. Mullins, and each of them, the
undersigned's true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign the Annual Report on
Form 10-K for the fiscal year ended August 31, 1999 of Tuscarora Incorporated,
and any and all amendments thereto, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as the
undersigned might or could do in person and hereby ratifying and confirming all
that said attorneys-in-fact and agents or any of them, or their or his or her
substitutes, may lawfully do or cause to be done by virtue hereof
October 18, 1999 /s/ David C. O'Leary
-----------------------------
David C. O'Leary
<PAGE> 8
POWER OF ATTORNEY
NOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints John P. O'Leary, Jr. and Brian C. Mullins, and each of them, the
undersigned's true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign the Annual Report on
Form 10-K for the fiscal year ended August 31, 1999 of Tuscarora Incorporated,
and any and all amendments thereto, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as the
undersigned might or could do in person and hereby ratifying and confirming all
that said attorneys-in-fact and agents or any of them, or their or his or her
substitutes, may lawfully do or cause to be done by virtue hereof
October 18, 1999 /s/ Harold F. Reed, Jr.
-----------------------------
Harold F. Reed, Jr.
<PAGE> 9
POWER OF ATTORNEY
NOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints John P. O'Leary, Jr. and Brian C. Mullins, and each of them, the
undersigned's true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign the Annual Report on
Form 10-K for the fiscal year ended August 31, 1999 of Tuscarora Incorporated,
and any and all amendments thereto, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as the
undersigned might or could do in person and hereby ratifying and confirming all
that said attorneys-in-fact and agents or any of them, or their or his or her
substitutes, may lawfully do or cause to be done by virtue hereof
October 18, 1999 /s/ Thomas P. Woolaway
-----------------------------
Thomas P. Woolaway
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> AUG-31-1999
<PERIOD-START> SEP-01-1998
<PERIOD-END> AUG-31-1999
<CASH> 6,090,066
<SECURITIES> 0
<RECEIVABLES> 34,097,562
<ALLOWANCES> 670,033
<INVENTORY> 22,490,918
<CURRENT-ASSETS> 64,433,700
<PP&E> 199,035,467
<DEPRECIATION> 97,980,580
<TOTAL-ASSETS> 177,385,523
<CURRENT-LIABILITIES> 27,059,008
<BONDS> 60,064,673
0
0
<COMMON> 9,568,343
<OTHER-SE> 77,115,579
<TOTAL-LIABILITY-AND-EQUITY> 177,385,523
<SALES> 233,841,000
<TOTAL-REVENUES> 233,841,000
<CGS> 178,635,682
<TOTAL-COSTS> 178,635,682
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 145,319
<INTEREST-EXPENSE> 4,619,190
<INCOME-PRETAX> 18,859,575
<INCOME-TAX> 7,130,451
<INCOME-CONTINUING> 11,729,124
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 11,729,124
<EPS-BASIC> 1.24
<EPS-DILUTED> 1.23
</TABLE>
