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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 10-K
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES AND EXCHANGE ACT OF 1934
For the Fiscal Year Ended December 31, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
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Commission File Number 1-10485
TYLER CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 75-2303920
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification no.)
2121 SAN JACINTO STREET 75201
SUITE 3200 (Zip code)
DALLAS, TEXAS
(Address of principal executive offices)
Registrant's telephone number, including area code: (214) 754-7800
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Securities registered pursuant to Section 12(b) of the Act:
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Name of each exchange
Title of each class on which registered
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COMMON STOCK, $0.01 PAR VALUE NEW YORK STOCK EXCHANGE
PREFERRED STOCK PURCHASE RIGHTS NEW YORK STOCK EXCHANGE
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Securities registered pursuant to Section 12(g) of the Act:
NONE
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INDICATE BY CHECK MARK WHETHER THE REGISTRANT (1) HAS FILED ALL
REPORTS REQUIRED TO BE FILED BY SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934 DURING THE PRECEDING 12 MONTHS (OR FOR SUCH SHORTER PERIOD THAT THE
REGISTRANT WAS REQUIRED TO FILE SUCH REPORTS), AND (2) HAS BEEN SUBJECT TO SUCH
FILING REQUIREMENTS FOR THE PAST 90 DAYS. YES [X] NO [ ]
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 THE FORM 10-K OR ANY
AMENDMENT TO THIS FORM 10-K. YES [X] NO [ ]
THE AGGREGATE MARKET VALUE OF THE VOTING STOCK HELD BY NON-AFFILIATES
OF THE REGISTRANT ON MARCH 10, 1998 WAS $263,358,245.
THE NUMBER OF SHARES OF COMMON STOCK OF THE REGISTRANT OUTSTANDING ON
MARCH 10, 1998 WAS 33,981,709.
DOCUMENTS INCORPORATED BY REFERENCE
CERTAIN INFORMATION REQUIRED BY PART III OF THIS ANNUAL REPORT IS
INCORPORATED BY REFERENCE FROM THE REGISTRANT'S DEFINITIVE PROXY STATEMENT FOR
ITS ANNUAL MEETING OF STOCKHOLDERS TO BE HELD ON APRIL 28, 1998.
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TYLER CORPORATION
FORM 10-K
TABLE OF CONTENTS
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PART I
Item 1. Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Item 2. Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Item 3. Legal Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Item 4. Submission of Matters to a Vote of Security Holders . . . . . . . . . . . . . . . . . . . . . . . . . . 16
PART II
Item 5. Market for Registrant's Common Equity and
Related Stockholder Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Item 6. Selected Financial Data . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Item 7. Management's Discussion and Analysis of Financial Condition
and Results of Operations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Item 7A. Quantitative and Qualitative Disclosures About Market Risk . . . . . . . . . . . . . . . . . . . . . . 26
Item 8. Financial Statements and Supplementary Data (see Index to
Financial Statements below) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Item 9. Changes in and Disagreements with Accountants on Accounting
and Financial Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
PART III
Item 10. Directors and Executive Officers of the Registrant . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Item 11. Executive Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Item 12. Security Ownership of Certain Beneficial Owners
and Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Item 13. Certain Relationships and Related Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
PART IV
Item 14. Exhibits, Financial Statement Schedules and Reports on Form 8-K . . . . . . . . . . . . . . . . . . . 28
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
INDEX TO FINANCIAL STATEMENTS
Report of Independent Auditors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Consolidated Statements of Operations for the years ended December 31, 1997, 1996
and 1995 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Consolidated Balance Sheets as of December 31, 1997 and 1996 . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Consolidated Statements of Shareholders' Equity for the years ended December 31, 1997,
1996 and 1995 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Consolidated Statements of Cash Flows for the years ended December 31, 1997,
1996 and 1995 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Notes to Consolidated Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
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TYLER CORPORATION FORM 10-K PAGE 1
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PART I
ITEM 1. BUSINESS.
GENERAL
In February 1998, Tyler Corporation ("Tyler" or the "Company")
acquired Business Resources Corporation ("Resources"), The Software Group, Inc.
("TSG"), and Interactive Computer Designs, Inc. ("INCODE"). These acquisitions
represent the implementation of Tyler's recently announced strategy to build an
integrated information management services, systems, and outsourcing company
servicing local governments. Resources, TSG and INCODE provide information
management solutions to approximately 200 county governments and 225 cities,
principally located in the Southwestern United States.
The Company believes that the information management industry today is
fragmented and that the county government and related markets are primarily
served by small, private companies. Given these industry characteristics and
the ability to identify suitable acquisition candidates and complete
acquisitions, the Company intends to pursue a consolidation strategy that, if
successful, could lead to significant revenue growth for the Company. The
acquisitions of Resources, TSG and INCODE will position the Company to grow
rapidly through consolidating acquisitions and give it the opportunity to
obtain a larger share of the county and city information management market. The
Company intends to pursue aggressively this consolidation strategy through an
acquisition program focused on entry into new geographic markets, expansion
within existing geographic markets and development of related services and
systems.
The Company also continues to operate through Forest City Auto Parts
Company ("Forest City"), a retailer of automotive parts and supplies. Forest
City specializes in selling mechanical and electrical hard parts, such as brake
parts, rack-and-pinion steering and fuel injectors, to do-it-yourself
customers. Forest City also stocks a wide variety of maintenance items, fluids
and accessories.
Effective October 15, 1997, Tyler sold all of the capital stock of its
former subsidiary, Institutional Financing Services, Inc. ("IFS") to I.F.S.
Acquisition Corporation.
INFORMATION MANAGEMENT SOLUTIONS
Overview
County and local governments have recognized the value of information
management services and systems to improve revenue collection, provide
increased access to information and streamline delivery of government services.
As a result, information management services and systems have become primary
vehicles for county and local governments, and their respective agencies,
seeking to
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improve the delivery of goods and services to their constituents. From
integrated tax systems to integrated criminal justice information systems, many
county and local governments have benefited significantly from the
implementation of jurisdiction-wide systems. These systems allow different
agencies to share data and provide a more comprehensive approach to information
management. Individual county and local government agencies also have
information management requirements, many of which must be tailored to the
services being provided. The annual expenditure by county governments for
information technologies and resources, excluding personnel costs, was
estimated in a Syracuse University study in 1992 at over $23 billion, with
approximately $10 billion spent annually on information management services and
data processing.
County governments were created over three centuries ago primarily to
serve the needs of rural areas. Today, county governments are the fastest
growing form of government. There are over 3,000 county governments in the
United States, plus 30 city-county governments, and county governments are
experiencing growth in expenditures estimated at approximately 5% to 10% per
year. Texas, with 254 counties, has the largest number of any state. Overall
spending by county governments nationwide increased dramatically from
approximately $115 billion in the fiscal year ended in 1989 to approximately
$148 billion in the fiscal year ended in 1992.
Traditionally, counties performed state-mandated duties, including
property assessment, record keeping (i.e., property and vital statistics), road
maintenance, administration of election and judicial functions and the
provision of welfare assistance. Today, a host of emerging and urgent issues
are confronting counties, each of which demands a service response. These
areas include solid waste disposal, clean air and water, transportation,
criminal justice and corrections, administration and finance, public safety,
health and human services and public works. Transfers of responsibility from
the federal and state governments, while empowering county and local
governments to address issues and problems directly, also place additional
service and financial requirements on these governmental units. In addition,
county governments are typically comprised of numerous individual agencies,
each fulfilling different missions and each having its own information
management requirements.
While all of these needs are not addressed by the Company's
subsidiaries, they are indicative of the environment in which the Company's
customers operate. The information management business serving county and
local governments is highly fragmented and the Company competes with several
competitors, some of whom may have greater resources than the Company, in most
areas of its information management business.
TYLER CORPORATION FORM 10-K PAGE 3
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Information Management Outsourcing Services
Resources provides a wide range of information management outsourcing
services, primarily to county and local governments. The largest component of
Resources' business is the computerized indexing and imaging of real property
records maintained by county clerks and recorders. Other services Resources
provides include records management and micrographic reproduction, as well as
information management and outsourcing and professional services required by
other county and local government units and agencies. Resources also provides
title plant update services to title companies in Texas.
Resources was formed in 1993 to serve as a holding company to acquire
businesses that provide information management outsourcing services to local
and county governments. In December 1994, Resources acquired Government
Records Services, Inc. ("GRS"), its subsidiary that provides property records
management services, and other business interests from American Title Group,
Inc., in connection with the sale of that title insurance holding company to an
unaffiliated party. GRS was founded in 1990 by four current Resources
employees each of whom has worked in the government services business for over
20 years. These key employees have long-term, established relationships with
Resources' customers and GRS has strong name recognition in Texas among county
and local governments. In August 1995, Resources acquired the business and
assets of a company that provides government information services to tax
appraisal districts in Texas. In September 1995, Resources acquired the
government outsourcing services business of BRC Holdings, Inc. ("Holdings"), in
Texas, Oklahoma, Louisiana and New Mexico, making it the largest provider of
those services in Texas. On July 31, 1997, Resources acquired the title
services division of Holdings and began providing title services to title
insurance companies throughout Texas, principally in the Dallas-Fort Worth
metropolitan area.
Property Records Services. County and local governments are
responsible for recording and indexing real property transactions, maintaining
archival copies of the filed documents and making those records available for
public inspection and copying. Historically, these governmental units have
used manual methods to record deeds and other title documents and to maintain
alphabetical indexes of transactions. Resources provides microfilm and optical
recording and computer indexing services to county and local governments
(primarily county clerk and recorder offices) to organize and automate the
recording and indexing of deeds and other title documents. Many of the records
that are filed in a county clerk's office are permanent records that form the
basis of land ownership in the county (e.g., deeds, deeds of trust, liens,
miscellaneous property records and plats). Therefore, in addition to being
accessible to the public, these records must be protected by a fail-safe backup
procedure in the event of vandalism, fire or flood. These records are recorded
by making archival quality paper copies, microfilm
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copies or imaging. Each record filed in the county clerk's or recorder's
office pertaining to a parcel of land in the county is recorded in one of these
methods and a county may have used different methods over time. In addition,
these documents vary by county and within a county as to shape, size, quality
and legibility.
Recording Services. Resources' archival print recording service
creates a high-quality film image of original documents on a custom-designed
microfilm camera owned by Resources and located in county offices. Either
Resources, or trained county government personnel, film the valuable records in
a format suitable for creating a two-sided paper copy. The film is then
processed in Resources' Kodak-certified laboratory and printed double-sided on
archive quality, rag content paper using high fusing temperatures to
permanently bond the print to the paper. The finished pages are then returned
to the county to be placed in binders for public access and use. The original
microfilm is stored in the Resources' archival film storage vault allowing
Resources to access the microfilm and reproduce pages on short notice or
reproduce entire volumes in the event of a natural or other disaster resulting
in a destruction or loss of records.
Resources' 20/20 Perfect Vision System allows an imaging system to be
integrated with an indexing application as well as a cashiering system. This
system is designed to manage the document workflow in the county clerk's or
county recorder's office. The imaging, indexing and cashiering applications
can stand alone, but are more powerful when integrated because of shared
information across the applications.
Indexing Services. In order to provide better service to the public
and to increase the ease of information access, many county clerk offices
maintain their grantor/grantee (i.e., buyer/seller) indices for property
records in computerized form. To accomplish this, information relating to the
grantor, grantee and property description must by keyed into a database from
the recorded documents.
Resources provides two types of computerized indexing services: (i)
data entry performed by Resources personnel at a central location, allowing the
county either to reduce the number of employees required for records
management, or to utilize employees on other tasks; and (ii) to a lesser
extent, data entry performed by a customer using Resources' microcomputers in
the customer's offices. With each type of indexing service, Resources provides
periodic merged updates of the cumulative grantor/grantee indices for each
county, using centralized computer and software systems located in Dallas,
Texas.
Resources has a large staff of qualified and well-trained data entry
operators specializing in creating consistent, quality indices. Based on its
property records experience, Resources believes that accuracy and consistency
are the keys to a reliable index. Resources requires its personnel to adhere
to strict data entry standards. Accuracy is ensured by having each document
entered twice in a process called "key verification" in which two operators
separately key the same information from a document
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and any discrepancies between the entries are then verified both visually and
by means of several computerized edits.
As discussed above, the indexing application can be integrated with
imaging and cashiering applications through Resources' 20/20 Perfect Vision
System to manage the document workflow in the county clerk's or county
recorder's office.
Re-creation Services. Resources also provides record re-creation
services to a number of customers. These services provide image-enhanced,
archival-quality reprints of old records, including photostatic prints, with
microfilm backup copies for improved security in case of loss by fire, theft,
water damage, or other catastrophe.
Other Services. Resources provides information management outsourcing
and professional services to numerous units and agencies of county and local
governments other than county clerks and recorders. These services concentrate
on establishing and maintaining a recurring revenue base built upon a
foundation of quality service.
Information is a critical part of government, and the increasing
difficulty of effectively managing that information has caused many
governmental units to consider outsourcing alternatives. Through its
information management outsourcing services, Resources provides direct and
complete facilities management of a county or local government's financial,
judicial, law enforcement, personnel, tax, clerical and administrative
information by, in effect, becoming its information systems department.
Outsourcing, typically negotiated under a multi-year contract, provides a
government entity with a more reliable method of controlling its data
processing budget while receiving greater automation benefits. Outsourcing
also typically results in controllable, long-term relationships with customers
and recurring annual revenues for Resources.
Under a typical outsourcing services contract, Resources assumes the
role of a customer's information systems department during the term of the
contract. In addition to operating and maintaining all centralized systems,
Resources also assumes responsibility for local area networks, client/server
systems, and personal computers, which often involve multiple users in multiple
offices. Software applications are also integrated for the benefit of the
customer. Resources' employees may either perform these services from
Resources' Dallas, Texas, office or from the customer's facilities, providing
essentially the same function as the customer's former in-house information
systems personnel. Also, Resources' management personnel become part of a
strategic planning committee along with the customer's representatives to set
the goals and objectives to be achieved during the contract.
Resources also provides professional services to appraisal districts,
counties, cities, and school districts. Under a professional services
agreement, Resources provides a variety of hardware and specialized software
for the customer's use to assist these government entities in automating their
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property tax appraisal, assessment, and collections, and voter registration
processing. In addition to installing Resources' products in the customer's
locations, training, maintenance and support are provided on an ongoing basis
along with optional services, including laser printing of tax rolls, appraisal
rolls and voter certificates, media conversions and data entry activities.
Resources receives monthly service fees from customers for the use of these
systems, resulting in recurring annual revenues.
Title Plant Services. Title companies in Texas are required to
maintain extensive files of real property data called "title plants." Title
plants contain the information needed to perform title searches in order to
underwrite title insurance policies. In Texas, a title plant must include at
least a 25-year history of all land transactions and documents affecting each
lot and tract of land in a particular county, which must be indexed so that the
transactions and documents can be searched by reference to the lot or tract.
Resources provides certain title insurance companies, primarily in the
Dallas-Fort Worth metropolitan area, with a variety of title plant update
services, including providing daily updates of their title plants. These
updates are offered in various formats, ranging from paper copies of each deed,
deed of trust, lien, plat, or other title document to installation of
microcomputer-based title plant storage products in the customer's office.
Resources owns title plants for Collin, Denton, Rockwall and Tarrant Counties
in Texas, and may from time to time sell copies of these title plants to title
companies or other firms that need title search capabilities.
A recently approved Constitutional amendment in Texas, which permits
second liens on homes to secure general home equity loans, is expected to
result in increased demand for title plant services.
Sales and Marketing. Resources markets its services through its
direct sales and marketing personnel. Resources typically enters into
long-term contracts with larger governmental units and title companies.
Although most Resources customers are small and do not have long-term
contracts, they have long-term, continuing relationships with Resources and its
sales and marketing personnel. Many of Resources' county government customers
and title plant customers have been served by Resources and its predecessors
for more than 20 years, with some customers dating back to 1962. Customer
turnover is extremely low.
Customers. No single customer accounted for 10% or more of Resources'
total revenues in 1997. The five largest customers of Resources accounted for
a total of 23% of Resources' total revenues in 1997. These customers are
currently under long-term contracts with Resources expiring in 1998 through
2002. Three of these five contracts permit early termination by the customer
in the following respective
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circumstances: (i) upon 10 days' notice to Resources for any reason; (ii) at
the end of a budget year; and (iii) upon 30 days' notice if required for the
"public good" or because of change in applicable laws.
Information Software Systems and Services
TSG and/or INCODE provide county and local governments with software,
systems and services to serve their information technology and automation
needs. TSG and INCODE integrate their own products with computer equipment
from hardware vendors, third-party database management applications and office
automation software. TSG assists counties with all aspects of software and
hardware selection, network design and management, installation and training
and on- going support and related services. INCODE provides similar services
to municipal governments.
TSG was formed in 1981 and currently services approximately 1,000
county and local government units and agencies, primarily in Texas. INCODE was
also formed in 1981 and provides information management systems and services to
250 municipal government sites throughout Texas, Oklahoma and Missouri, as well
as certain additional cities in contiguous states.
Services. TSG and INCODE provide the following services to county and
local governments:
Judicial Information Management. TSG offers a complete suite of
information management products designed to meet the needs of various aspects
of the judicial system. While each of these products may be installed on a
stand- alone basis, most of the products are generally installed in the
different government offices located in and around a county courthouse to take
full advantage of the benefits of an integrated system of products. The
ability to share information between government offices eliminates some of the
duplicate input and record keeping and helps increase the efficiency of the
offices.
Court System. TSG's Courts system is comprised of several integrated
products designed to track and manage the information involved in criminal and
civil cases. The criminal and civil case management applications track cases,
process fines and fees, generate judgment and sentencing paperwork in
conjunction with criminal cases, generate numerous citations, notices and forms
required in a civil case and generally track the status of each criminal and
civil case in the court system. TSG's court administration application manages
court calendars, coordinates judges' schedules and generates court dockets.
The criminal justice information application accommodates local and state level
reporting and electronic submission of case dispositions. An application
designed for Justices of the Peace processes traffic tickets and other limited
jurisdiction court matters. Finally, TSG's applications for the district
attorney or prosecutor of a county automate the investigation, tracking, and
filing of cases.
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INCODE also offers a comprehensive municipal court management system
designed to fully automate the processing of citations, fees, warrants, bonds,
and other tasks related to a city's municipal court operations.
Law Enforcement System. The applications comprising TSG's Law
Enforcement system are designed to automate all aspects of a sheriffs' agency.
Applications for jail management include booking and releases, as well as the
jail commissary. The medical processing application tracks inmates' medical
histories and generates invoices to inmates or third parties. TSG's incident
and offense reporting application tracks officers' activities, categorizes
reporting obligations, and prepares state and federal Uniform Crime Reports.
Finally, the warrant tracking application helps a county sheriffs' office track
outstanding and closed arrest warrants. In addition, TSG offers a Computer
Aided Dispatch/Emergency 911 system to track calls and the status of emergency
response vehicles, interface with local and state searches and generally assist
dispatchers in processing emergency situations.
Other Judicial Information Products. TSG markets a variety of other
specialized products in conjunction with the Courts system and the Law
Enforcement system. Both systems are image-enabled using TSG's ableIMAGE
application and the Law Enforcement system is video-enabled using ableVIDEO. A
jury selection application assists election officials in the selection and
notification of jurors, processing of jury payments, and management of juror
histories. TSG's hot check processing application assists in the collection of
bad checks, tracking of payments and fines and issuance of disbursements to
vendors. Applications relating to adult and juvenile probation track
probationers, collect fines and fees, maintain probation history and generate
required state reporting.
Utility Customer Information System. INCODE offers integrated
applications designed to automate the billing and collections of the various
metered utilities (i.e., water, gas, electricity) and non-metered services
(i.e., sanitation, sewer) provided by municipal governments. This system
allows INCODE customers to track invoicing, cash collections, work orders and
automated meter readings.
Property Appraisal and Tax. TSG has a comprehensive system for the
automation of Texas Central Appraisal Districts and assessors' and appraisers'
offices in Oregon and Washington. The Automated Central Appraisal District
system (the "ACAD system") is designed to automate the appraisal and assessment
of real and personal property including record keeping, mass appraisal, inquiry
and protest tracking, appraisal and tax roll generation, tax statement
processing and electronic state level reporting. The ACAD system can also be
image- and video-enabled using TSG's ableIMAGE and ableVIDEO products for the
storage of the many property related documents involved (including exemption
applications, personal property renditions, and agricultural or special use
application), as well as for the on-line storage of electronic photographs of
properties for use in defending values in protest situations.
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TSG's ACAD system can be used in connection with TSG's Automated Tax
Collection system (the "ATC system"), which supports tax billing and collection
agencies, including counties and city, school tax offices, as well as special
collection agencies. The ATC system supports billing, collections, lock box
operations, mortgage company electronic payments, and provides daily, monthly
and annual audit and distribution reporting.
Specialized Products. TSG markets an integrated fund accounting
system that conforms to government auditing and financial reporting
requirements and generally accepted accounting principles. This system
includes modules for accounts payable, budgetary accounting (general ledger),
payroll/personnel, purchase order, fixed assets, revenues, bank manager and
human resources. This system can operate in any government agency, although it
is primarily installed in county auditor and county treasurer offices. INCODE
provides a similar product which is mainly installed in city governments and
municipal utility districts and authorities.
TSG also offers other specialized products that allow the government
offices in and around a courthouse to further integrate and automate their
operations. Through the child support application, TSG customers are able to
track child support cases, payments, and disbursements. The voter registration
application tracks registered voters, generates voter cards, prepares precinct
rolls in support of elections and interfaces with other state systems. TSG
also offers an absentee voting application to assist in the management and
tracking of absentee voters, as well as an election night system to assist in
the tabulation of election results from various precincts. A motor vehicle
registration application is available from TSG to process fees and issue motor
vehicle registrations. Finally, TSG's indexing application allows government
officials to index all official public records such as deeds, birth and death
certificates and commissioner's court minutes.
INCODE also offers similar products that allow city governments to
further integrate and automate their operations. Through its city hall
application, INCODE customers are able to maintain the records for cemeteries,
ambulance billing and fleet maintenance. In addition, INCODE markets a suite
of applications designed to automate the various responsibilities of the code
enforcement department of a city, including tracking of citizen complaints,
permits and inspections and business licenses.
Imaging and Voice Products. TSG markets a variety of products that
interface with and enhance its other products. TSG's ableIMAGE is an
electronic document imaging system that integrates the scanning, retrieval, and
display of document images into all of TSG's applications where needed. For
example, the ableIMAGE application integrates with both the Court and Law
Enforcement systems by allowing court related paperwork and documents to be
scanned and stored as part of an electronic case folder designed to improve
access to documents and reduce the need to distribute paper copies.
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TSG's ableVIDEO application allows a customer to add an electronic
video imaging system which integrates the capture and display of pictures with
all of TSG's applications. For example, the Law Enforcement system
applications are video image-enabled using ableVIDEO to provide video mug shots
of inmates at critical locations for identification and to allow investigators
to compile electronic video line-ups.
The Interactive Voice Response system developed by TSG interfaces with
the ACAD system to allow retrieval of basic property information and interfaces
with the child support system to allow retrieval of child support payment
information using any touch-tone telephone.
In addition, appropriate TSG products support bar coding for tracking
of civil and criminal case folders, tracking of inmates, quick check-in of
jurors, and rapid processing of tax statements.
Internet Web Development. TSG has developed ableSERVE and a variety
of other specialized application database interfaces to allow the public
records portion of information contained in the various TSG systems to be made
available to the public via the Internet. TSG also provides both web site
development and web server hosting services for county customers.
Sales and Marketing. TSG's sales are primarily performed by its
direct sales and marketing personnel who are presently organized into five
sales territories within the states of Texas and Georgia. Sales for other
states and national account opportunities are managed by TSG's marketing
manager except for the states of Oregon and Washington which are currently
handled by TSG's Northwest Manager. Other in-house staff focus on add-on
sales, forms, supplies and professional services.
TSG's sales of most new systems are typically to other offices or
organizations in counties already using TSG applications and systems, but sales
are also generated from referrals from adjoining counties, relationships
established between sales representatives and county officials, contacts at
trade shows, direct mailings and direct contact from a prospect already
familiar with TSG. TSG is active in virtually all state-level county
government associations, including annual meetings, trade shows and educational
events. In addition, TSG generally hosts customer luncheons at larger,
statewide meetings such as the Texas Association of Appraisal Districts and the
Texas County and District Clerks Association. TSG also hosts a user's group
meeting for all TSG customers about once every 18 months, which provides an
opportunity for customers to learn more about TSG products and an opportunity
for feedback.
INCODE's sales are primarily performed by its direct sales and
marketing personnel who are presently organized into four sales territories
within the states of Texas, Oklahoma, Missouri, New Mexico, Colorado, Kansas,
and Louisiana. INCODE's marketing manager is responsible for sales in other
states. Other in-house staff focuses on add-on sales of products and services
to existing customers.
TYLER CORPORATION FORM 10-K PAGE 11
<PAGE> 13
Sales leads are derived from various sources including referrals from
customers, consultants, and auditors, regional software demonstration seminars,
direct mail, the Internet, telemarketing and trade shows and conferences.
INCODE also hosts an annual Education Forum, which provides an opportunity for
customers to learn more about INCODE products and services.
Customers. TSG's customers consist primarily of county government
offices, including the auditor, treasurer, tax assessor/collector, county
clerk, district clerk, county and district court judges, probation officers,
sheriffs' office and appraisal districts. No single customer (county
government office) accounted for more than 5%, and no single county accounted
for more than 10%, of total revenues for the fiscal year ending October 31,
1997. Due to the nature of TSG's sales as installation of countywide systems,
a county customer representing a significant portion of revenues in one year is
generally not a source of significant revenues the following year. Contracts
for products and services are generally implemented over six months to one year
with annually renewing service and software update agreements thereafter.
Currently, approximately one-third of TSG's revenues are attributable to
ongoing support and maintenance agreements. Although by the terms of these
agreements either TSG or the customer are entitled to terminate upon 90- days'
notice after the first anniversary of the agreement, historically most
agreements are automatically renewed annually.
INCODE's market is primarily small to mid-sized municipal governments,
typically a city government in the 3,000 to 35,000 population range. The
average population of new customer sites is increasing. INCODE added a city
with a population of 110,000 to its customer base in 1997. In addition to city
government customers, INCODE has approximately twenty municipal utility
districts as customers. No single customer (municipal governmental entity)
accounted for more than 5% of total revenues for the year ended December 31,
1997.
Customer turnover for both TSG and INCODE is very low.
Competition
A number of local and regional businesses provide or offer at least
some of the products and services provided by the Company through Resources,
TSG or INCODE. In addition to third-party vendors, Resources, TSG and INCODE
occasionally compete with centralized information service departments of county
or local governments to provide products or services to other departments and
often must persuade the end-user department to discontinue the service by its
own personnel and outsource the service. The ability of TSG and INCODE to
offer an integrated system of applications for several offices is often a
factor in their favor. In addition, county and local governments are often
required to put their contracts up for competitive bid on a periodic basis.
Competition may be increased
TYLER CORPORATION FORM 10-K PAGE 12
<PAGE> 14
if a customer seeks bids on only one aspect of its system (such as imaging or
indexing or voter registration) rather than bidding all of the services as an
integrated whole. Single function bidding generally results in more bidders
and more intense price competition. GRS and TSG are Qualified Information
Systems Vendors for the Texas General Services Commission on state purchasing
contracts and, as a result, in some cases county governments offices may
contract with GRS or TSG directly without a bid process.
For Resources, competition typically is based on price, service and
technological capabilities or the ability to modify the products and services
to be provided to accommodate the requirements of the customer. For TSG and
INCODE, competition typically is based on confidence in the supplier, service,
technological capabilities or the ability to modify and price.
As a result of various acquisitions and sales of businesses by
Resources, it has contractual commitments not to compete in the property
records services business in the Southeastern United States until September
1998. Additionally, in connection with Resources' acquisition of the title
services division of Holdings in July 1997, Resources acquired the Dallas,
Texas, data processing center of Holdings and agreed to provide to Holdings
certain data entry services for customers of property records services provided
by Holdings. Resources also agreed not to solicit these customers, which are
located primarily in the Northeastern and Southeastern United States, prior to
August 1999.
AUTOMOTIVE AFTERMARKET PARTS
Forest City, headquartered in Cleveland, Ohio, is a retailer of
automotive parts and supplies. The company specializes in selling mechanical
and electrical hard parts, such as rack-and-pinion steering and fuel injectors
to do- it-yourself customers. Forest City also stocks a wide variety of
maintenance items, fluids and accessories. Known for extensive inventories,
Forest City's stores use the slogan, "Stop looking! The odds are we have it."
Each Forest City location maintains inventories which average 20,000
parts for both domestic and foreign cars and light trucks. Company stores
carry deeper inventories than most competitors and stock items that best suit
the vehicle mix in their area. Major Forest City suppliers include Allied
Signal Inc., Kem Manufacturing Company, TRW Inc. and Tenneco Automotive.
Inventories carried by Forest City are generally available from multiple
sources.
Quality customer service provided by knowledgeable store personnel is
fundamental to the company's strategy. Through on-the-job and formal training
programs, Forest City's employees learn to assist customers in diagnosing
specific problems and selecting the correct parts. The company's use of
incentive compensation and opportunities for promotion allow Forest City to
hire and motivate high-quality individuals.
TYLER CORPORATION FORM 10-K PAGE 13
<PAGE> 15
Forest City was founded in 1927 and served the Akron area with one
store until 1961. At the end of 1981, the company had 31 locations in
operation. Forest City ended 1997 with 71 locations, including ten new stores
added in October 1997 in the Chicago and Milwaukee areas. Open seven days a
week, each location operates extended hours to provide maximum customer
convenience.
Sources estimate total annual sales attributable to the do-it-yourself
portion of the auto-parts aftermarket at approximately $30 billion. Auto-parts
retailing is a fragmented market with major competitors in Forest City's
markets including AutoZone, Inc., Parts America, a division of Western Auto,
Murray's Discount Auto Stores, Inc., Pep Boys - Manny, Moe & Jack and Trak Auto
Corp. Additional competition comes from jobbers who sell principally to
wholesale accounts and, to a lesser extent, from discount and general
merchandise stores.
The auto-parts retailing industry is intensely competitive. Factors
contributing to competitive pressures are the slowing growth of the
do-it-yourself market as a result of longer-lived automobile parts, increased
complexity of modern cars and higher incidences of leasing. Virtually all cars
and trucks now have computer-controlled engines, as well as complex electronic
fuel injection and ignition systems.
Employees. At December 31, 1997, the Company had 787 employees, of
which 779 were employed by Forest City. The number of employees at December
31, 1997, does not include the employees added with the acquisitions of
Resources, TSG and INCODE on February 19, 1998.
ITEM 2. PROPERTIES.
At December 31, 1997, the Company occupied approximately 420,000
square feet of floor space which is primarily utilized in retail facilities.
As of December 31, 1997, Forest City operated 71 stores in Illinois,
New York, Ohio, Pennsylvania and Wisconsin, most of which were leased,
generally under leases of less than seven years' duration. Store sizes range
from 4,300 to 7,000 square feet with the typical store located in a
free-standing building of approximately 6,000 square feet.
Property descriptions are as of December 31, 1997, and do not include
properties added with the acquisitions of Resources, TSG and INCODE on February
19, 1998.
ITEM 3. LEGAL PROCEEDINGS.
The New Jersey Department of Environmental Protection and Energy
("NJDEPE") has alleged that a site where a former affiliate of Tyler Pipe
Industries, Inc. (a wholly-owned subsidiary of the Company known as TPI of
Texas, Inc. ("TPI")), Jersey-Tyler Foundry Company ("Jersey-Tyler"), once
operated a foundry contains lead and possible other priority pollutant metals
and may need on-site and off-site remediation. The site was used for foundry
operations from the early part of this century to 1969
TYLER CORPORATION FORM 10-K PAGE 14
<PAGE> 16
when it was acquired by Jersey-Tyler. Jersey-Tyler operated the foundry from
1969 to 1976, at which time the foundry was closed. In 1976, Jersey-Tyler sold
the property to other persons who have operated a salvage yard on the site.
Based on a remedial investigation conducted by TPI, the NJDEPE has demanded TPI
remediate the foundry site and the contamination in the adjacent stream and
nearby lake. TPI has offered to conduct a feasibility study to assess
remediation options, including costs, but has not agreed to commit to further
action at this time. TPI never held title to the site and denies liability.
In connection with the sale of the assets of TPI to Ransom Industries,
Inc. (formerly known as Union Acquisition Corporation) (the "Buyer"), an
affiliate of McWane, Inc., on December 1, 1995, pursuant to an Acquisition
Agreement among the Company, TPI and the Buyer (the "Acquisition Agreement"),
the Buyer agreed to manage and direct the prosecution or defense of these
matters on behalf of TPI. In addition, the Buyer agreed to reimburse TPI the
first $3,000,000 of certain costs and expenses incurred in connection with the
investigation or remediation of the site, and one-half of such expenses in
excess of $3,000,000. Under any circumstances, however, the maximum amount
that the Buyer agreed to reimburse TPI in connection with this matter is
$6,500,000. As of December 31, 1997, the Buyer has reimbursed TPI
approximately $500,000 which represents principally all the expenses to-date
associated with the investigation of the site. The Buyer, on behalf of TPI, is
proceeding against predecessor owners and operators of the site, as well as
others, to bear their share of the cost of the investigation and any other
costs, including any remediation costs incurred by TPI. Some costs may also be
covered by insurance although the insurance carriers have initially denied
coverage. TPI expects to proceed against such insurance carriers seeking
coverage of remediation costs. Recoveries from predecessor companies and
insurance companies are shared by TPI and the Buyer.
Pursuant to the Acquisition Agreement, the Buyer agreed to manage and
direct the prosecution or defense of certain matters on behalf of TPI, and to
reimburse related costs and expenses. The Buyer agreed to reimburse TPI the
first $750,000 of all costs and expenses incurred in connection with each such
matter, and one-half of such expenses in excess of $750,000. The maximum
amount that the Buyer agreed to reimburse TPI in connection with all of these
matters excluding Jersey-Tyler is $8,000,000. The Buyer did not agree to
reimburse TPI for, among other things, (a) liabilities relating to the use,
handling, manufacture or sale of products containing asbestos or silica, (b)
claims of individuals for health problems such as (but not limited to)
silicosis, or (c) offsite environmental liabilities. Although it is impossible
to predict the outcome of legal or regulatory proceedings, the Company believes
that substantially all of the costs, expenses and damages, if any, resulting
from the legal proceedings and environmental matters described above will be
reimbursed by the Buyer pursuant to the Acquisition Agreement or have been
adequately provided for in the financial statements.
TYLER CORPORATION FORM 10-K PAGE 15
<PAGE> 17
Between 1968 and December 1995, TPI owned and operated foundries. TPI
is, and expects to continue to be, involved in different types of litigation
for which it will not be reimbursed by the Buyer. Beginning in February 1997,
over fifty former employees of TPI have filed a series of separate personal
injury lawsuits which allege that they were exposed to silica, asbestos and/or
other industrial dusts during their employment at TPI. Named as defendants
with TPI and Swan Transportation Company ("Swan"), another wholly-owned
subsidiary of the Company, are major suppliers of asbestos, sand and industrial
respirator devices. These codefendants have been sued under product liability
theories of recovery. The plaintiffs seek to recover money damages for the
personal injuries they allegedly suffered as a result of their occupational
exposure to silica, asbestos and other industrial dusts. No discovery has
taken place, and it is not possible to predict the outcome at this time. While
the Company plans to defend this litigation vigorously, the ultimate outcome is
uncertain.
On September 25, 1997, a former employee of a Forest City store
brought suit against Forest City and the Company in the Supreme Court of Erie
County, New York. The plaintiff alleges that employees of Forest City falsely
accused her of falsifying overtime entries, terminated her employment on that
basis, filed a criminal report based upon the false overtime entries and forced
her to sign a restitution agreement. Based upon these allegations, the
plaintiff is suing for slander, intentional abuse of the criminal law
enforcement process and intentional and negligent infliction of emotional
distress. The plaintiff is seeking compensatory damages of at least $1,500,000
and punitive damages of at least $3,000,000. The Company believes the claims
are without merit and intends to vigorously defend this action.
Other than ordinary course, routine litigation incidental to the
business of the Company and except as described herein, there are no material
legal proceedings pending to which the Company or its subsidiaries are parties
or to which any of its properties are subject.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
Not applicable.
TYLER CORPORATION FORM 10-K PAGE 16
<PAGE> 18
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS.
Tyler common stock is traded on the New York Stock Exchange. At
December 31, 1997, Tyler had approximately 3,500 stockholders of record. A
number of the Company's stockholders hold their shares in street name;
therefore, there are substantially more than 3,500 beneficial owners of its
common stock.
The following table sets forth for the calendar periods indicating the
high and low sales price per share of Tyler common stock as reported on the New
York Stock Exchange.
<TABLE>
<CAPTION>
High Low
---- ---
<S> <C> <C>
1996: First Quarter . . . . . . . . . . . . . . $ 3 $ 2 1/4
Second Quarter . . . . . . . . . . . . . . 2 7/8 2 1/8
Third Quarter . . . . . . . . . . . . . . 2 3/4 1 3/8
Fourth Quarter . . . . . . . . . . . . . . 2 1/4 1 3/8
1997: First Quarter . . . . . . . . . . . . . . $ 2 3/8 $ 1 1/2
Second Quarter . . . . . . . . . . . . . . 2 1/4 1 3/8
Third Quarter . . . . . . . . . . . . . . 3 3/4 2
Fourth Quarter . . . . . . . . . . . . . . 5 7/8 3 3/8
1998: First Quarter (through
March 10, 1998) . . . . . . . . . . . . . $ 8 3/4 $ 5 5/16
</TABLE>
No cash dividends were paid in 1997 or 1996.
TYLER CORPORATION FORM 10-K PAGE 17
<PAGE> 19
ITEM 6. SELECTED FINANCIAL DATA.
<TABLE>
<CAPTION>
AS OF OR FOR THE YEARS ENDED DECEMBER 31,
-------------------------------------------------------------------
(DOLLARS AND AVERAGE SHARES IN THOUSANDS, EXCEPT PER SHARE DATA)
1997 1996 1995 1994 1993
-------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Net sales ............................... $ 76,429 $ 85,074 $ 86,893 $ 91,849 $ 84,464
Costs and expenses:
Cost of sales ........................ 43,947 49,275 (1) 51,126 53,626 46,566
Selling, general and administrative .. 29,887 41,162 (1) 34,531 36,229 33,695
Amortization of goodwill ............. -- 1,101 1,112 1,111 1,092
Depreciation and amortization ........ 2,057 1,368 1,060 895 770
Interest (income) expense, net ....... (830) (277) 1,003 678 85
Goodwill and other intangibles
impairment charge ................. -- 14,789 (2) -- -- --
-------- -------- -------- -------- --------
Income (loss) from continuing
operations before taxes .............. 1,368 (22,344) (1,939) (690) 2,256
Income tax (benefit) .................... 197 (3,037) (497) (24) 1,308
-------- -------- -------- -------- --------
Income (loss) from continuing
operations ........................... $ 1,171 $(19,307) $ (1,442) $ (666) $ 948 (3)
======== ======== ======== ======== ========
Earnings (loss) per common share
from continuing operations(4) ........ $ .06 $ (.97) $ (.07) $ (.03) $ .05 (3)
======== ======== ======== ======== ========
Weighted average number of common
shares outstanding ................... 20,498 19,876 19,869 19,925 20,556
</TABLE>
<TABLE>
<CAPTION>
AS OF DECEMBER 31,
------------------------------------------------------------
1997 1996 1995 1994 1993
-------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
BALANCE SHEET DATA:
Total assets ..................................... $ 54,895 $ 59,390 $123,512 $197,800 $143,171
Long-term debt ................................... -- -- -- 63,500 --
Shareholders' equity ............................. 31,403 32,041 93,362 110,298 117,964
</TABLE>
(1) Cost of sales and selling, general and administrative include pretax
restructuring and other charges of $612 and $6,638, respectively (see Note
11 in Notes to Consolidated Financial Statements).
(2) Pretax charge for write-off of goodwill and other intangibles at Forest
City (see Note 12 in Notes to Consolidated Financial Statements).
(3) Before cumulative effect of change in accounting principles for income tax
resulting in a credit of $1,127, or $.05 per share.
(4) Earnings (loss) per share represents basic earnings per share. When the
effect of dilutive shares are considered, there is no change from basic
earnings per share (see Note 9 in the Notes to Consolidated Financial
Statements).
TYLER CORPORATION FORM 10-K PAGE 18
<PAGE> 20
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS.
RESULTS OF OPERATIONS
The continuing operations information discussed below excludes the results
of operations of IFS sold in October 1997 and TPI sold in December 1995.
Interest expense has been charged to discontinued operations based on net
assets associated with IFS and TPI at the average borrowing rate during each
period. Income tax (benefit) has been charged (credited) to discontinued
operations based on the income tax (benefit) resulting from inclusion of the
discontinued operations segment in the Company's consolidated federal income
tax return. Continuing operations at December 31, 1997, 1996 and 1995
principally consisted of Forest City. The Company's results of operations do
not include the results of operations of Resources, TSG or INCODE, which were
acquired in February 1998.
Subsidiary operating profits, as used herein, exclude amortization and
write-off of goodwill and other intangibles arising from acquisitions and
restructuring and other charges recorded in the fourth quarter of 1996.
1997 COMPARED TO 1996
Tyler reported income from continuing operations of $1.2 million, or $.06
per diluted share in 1997, compared to a loss of $19.3 million, or $.97 per
diluted share in 1996. Loss from continuing operations in 1996 includes pretax
charges of $14.8 million to write off goodwill and other intangibles at Forest
City and $7.3 million of restructuring and other charges.
Forest City's same store sales were down 9% in 1997 and operating profit
declined to $3.5 million in 1997 from $3.8 million in 1996 before restructuring
and other fourth-quarter charges. Although gross margin on a yearly basis was
down slightly at 42.5% in 1997 compared to 42.8% in 1996 before restructuring
and other charges, the fourth quarter 1997 gross margin declined to 41.2%.
Both the decline in the fourth quarter margin and sales for the year reflect
increased competition in the markets Forest City serves.
Selling, general and administrative expenses in 1996 included $1.1 million
of goodwill and other intangibles amortization and $3.0 million of
restructuring and other charges. In December 1996, the company wrote-off all
goodwill and other intangibles. Excluding these charges, Forest City's
selling, general and administrative expenses as a percent of sales in 1997 were
flat compared to 1996.
TYLER CORPORATION FORM 10-K PAGE 19
<PAGE> 21
Forest City completed a transaction on October 8, 1997, which added ten
stores, primarily in the Chicago and Milwaukee areas. The company purchased
existing inventory at a discount and assumed leases on these stores. The cost
of this transaction, which includes the cost of additional inventory purchased
after the acquisition, was approximately $3.2 million. These additional stores
are expected to impact Forest City's operations in a positive manner.
Historically, same-store sales comparisons have been more favorable in the
Chicago and Milwaukee areas as opposed to other markets served by Forest City.
The auto-parts retailing industry is intensely competitive. Factors
contributing to competitive pressures are the slowing growth of the
do-it-yourself market as a result of longer-lived automobile parts, increased
complexity of modern cars and higher incidences of leasing. Virtually all cars
and trucks now have computer-controlled engines, as well as complex electronic
fuel injection and ignition systems.
As a result of the changes in the market place, the auto-parts retailing
industry is quickly consolidating. This consolidation trend led to lower sales
volume in 1997 and is expected to continue in 1998 with the larger retailers
gaining market share at the expense of jobbers, smaller independent operators
and less specialized mass merchandisers, which lack the economies of scale in
purchasing and distribution available to larger retail chains. Although this
trend is expected to negatively impact sales volume in 1998, Forest City
anticipates limiting the impact on operating margin by more closely monitoring
payroll and other store costs. In an effort to lower inventory costs, in the
fourth quarter of 1997, Forest City negotiated several new vendor contracts,
which resulted in slightly lower costs and more favorable payment terms.
As part of a new strategy to limit the negative sales impact of new competition,
Forest City opened its first new built-to-specifications store in February 1998.
The new 5,800 square foot free-standing store, which replaced an outdated
facility in Akron, Ohio, is the prototype for future Forest City stores. In
addition, the company plans to build a similar new store in the Chicago area in
April 1998 and remodel at least three of their more profitable stores to
resemble the new prototype. Furthermore, Forest City intends to remodel other
stores as soon as it becomes known that a major competitor plans to enter or
expand in the company's markets. Despite these efforts, the Company cannot
provide any assurances that this trend will not negatively impact earnings. In
addition, in 1998, Forest City will review the performance of existing stores,
which may result in the relocation or closure of some unprofitable stores.
After excluding restructuring and other charges recorded in the fourth
quarter of 1996, corporate expense in 1997 declined approximately 9% compared
to 1996, primarily due to reduced employee costs.
TYLER CORPORATION FORM 10-K PAGE 20
<PAGE> 22
The Company's income tax expense of $.2 million in 1997 was less than the
amount computed by applying the statutory rate to its income from continuing
operations due to the utilization of capital losses and the effect of state
income taxes.
1996 COMPARED TO 1995
For the year ended December 31, 1996, Tyler Corporation had a pretax loss
from continuing operations of $22.3 million. Sales fell 2% for the year. The
pretax loss from continuing operations includes a pretax charge of $14.8
million to write off goodwill and other intangibles at Forest City and $7.3
million of restructuring and other charges.
The continued decline in the financial results of Forest City in the second
half of 1996 and a related strategic and operational review resulted in an
evaluation of goodwill and other intangibles for possible impairment. The
underlying factors contributing to the decline in financial results included
changes in the marketplace and increased competition. The Company calculated
the present value of expected cash flows to estimate the fair value of Forest
City.
In the fourth quarter of 1996, the Company recorded $1.7 million of
restructuring and other pretax charges in relation to a restructuring plan to
reduce costs and increase future operating efficiency by reducing the work
force, closing and relocating Forest City stores and reducing corporate office
space requirements. Also in the fourth quarter, the Company recorded pretax
charges of $3.7 million, which included vendor restocking charges for on-hand
inventory items at Forest City, the noncash write-off of certain fixed assets
and software, which Forest City decided in the fourth quarter of 1996 that it
would no longer utilize in its business, and other obligations relating to the
termination of former employees. In addition, the Company terminated its
defined benefit pension plan in the fourth quarter of 1996 resulting in a net
charge of $1.9 million.
Total restructuring and other charges recorded in the fourth quarter of 1996
were $7.3 million of which $.6 million is included in cost of sales and $6.7
million is included in selling, general and administrative expenses.
Same-store sales at Forest City advanced 5% in the first half of 1996;
however, competitors aggressively opened new stores in Forest City's markets in
the third quarter resulting in a 4% decline in same-store sales comparison for
the second half.
Forest City's operating profit declined from $4.0 million in 1995 to $3.8
million in 1996 before restructuring and other fourth-quarter 1996 charges.
Gross margin was up 1.6% in the year-to-year comparisons. Installation of an
electronic point-of-sale system ("POS") early in 1996, tightened security in
the stores and a management program targeting stores with gross margins below a
minimum standard contributed to this increase. While better productivity
lowered operating payroll as a percentage of sales
TYLER CORPORATION FORM 10-K PAGE 21
<PAGE> 23
by 1.5%, these savings were more than offset by higher costs associated with
the new information systems.
After excluding restructuring and other charges, Tyler had much lower
corporate expense for 1996 compared to 1995. Savings came from a gain through
sale of an asset and lower personnel expense. This reduction, coupled with
interest income as opposed to interest expense in 1995, lowered the pretax loss
for 1996.
LIQUIDITY
Tyler ended 1997 with cash and cash equivalents of $8.9 million, a decrease
of $6.5 million from year-end 1996. The Company received $5.8 million in
October 1997 from the sale of IFS and recorded a receivable of $2.6 million for
the remaining purchase price. The $2.6 million receivable was subsequently
collected in January 1998.
In October 1997 the Company added ten stores to the Forest City network of
retail automotive parts stores. Forest City purchased existing inventory at a
discount and assumed leases on these stores, primarily in the Chicago and
Milwaukee areas. The cost of this transaction, which included the cost of
additional inventory purchased after the acquisition, was approximately $3.2
million.
In September 1997, Richmond Partners, Ltd., a Houston-based investment
partnership of which Louis A. Waters is the managing general partner, invested
$3.5 million in a package of Tyler securities consisting of two million common
shares and a warrant to acquire two million common shares with an exercise
price of $2.50 per common share. Mr. Waters is currently Chairman of the Board
of the Company.
In connection with Bruce W. Wilkinson's resignation as a director and
President and Chief Executive Officer of the Company effective October 8, 1997,
the Company purchased 447,609 shares of the Company's common stock owned by Mr.
Wilkinson for $1.5 million. Mr. Wilkinson purchased these shares in the second
quarter of 1997 as a condition of his employment. In addition, the Company
also made payments to Mr. Wilkinson of approximately $.3 million relating to
various stock compensation plans.
In 1996, several benefit plans maintained for certain key employees of the
Company and TPI were terminated which resulted in a final settlement payment of
$1.3 million in January 1997. This amount was accrued at December 31, 1996.
The Company also made payments of approximately $1.1 million in connection with
workforce reductions which were included in restructuring and other charges in
the fourth quarter of 1996.
In February 1998, the Company entered into a three-year bank credit
agreement in an amount not to exceed $50.0 million, including a $5.0 million
sublimit for the issuance of standby and commercial
TYLER CORPORATION FORM 10-K PAGE 22
<PAGE> 24
letters of credit (the "Senior Credit Facility"). The proceeds of the Senior
Credit Facility are intended to be used to fund acquisitions and meet
short-term working capital needs and capital expenditures which may arise from
time to time. Borrowings under the Senior Credit Facility bear interest at
either the bank's prime rate plus a margin of zero to .25% or the London
Interbank Offered Rate plus a margin of 1% to 2%, depending on the Company's
ratio of indebtedness to earnings before interest, taxes, depreciation and
amortization. The credit facility is secured by a pledge of the common stock
of all present and future operating subsidiaries and is guaranteed by all such
subsidiaries. Under the terms of the Senior Credit Facility, the Company is
required to maintain certain financial ratios and other financial conditions.
The Senior Credit Facility also prohibits the Company from incurring certain
additional indebtedness, limits certain investments, advances or loans and
restricts substantial asset sales, capital expenditures and cash dividends.
On February 19, 1998, the Company acquired Resources, TSG and INCODE. The
combined purchase price for these companies was 12.2 million shares of Tyler
common stock and approximately $41.3 million of cash and debt assumption, which
includes $5.7 million loaned to Resources for working capital purposes on
December 29, 1997. The Company financed the acquisitions utilizing funds
available under its Senior Credit Facility.
The Company is from time to time engaged in discussions with respect to
selected acquisitions and expects to continue to assess these and other
acquisition opportunities as they arise. The Company may also require
additional financing if it decides to make additional acquisitions. There can
be no assurance, however, that any such opportunities will arise, any such
acquisitions will be consummated or that any needed additional financing will
be available when required on terms satisfactory to the Company.
Tyler entered into a tax-benefit transfer lease in 1983 pursuant to which it
is obligated to make income tax payments totaling $4.5 million over the next
four years beginning in 1998. This obligation is included in deferred income
taxes at December 31, 1997.
Management believes adequate cash resources will be available for the next
12 months to fund capital spending programs and working capital needs.
TYLER CORPORATION FORM 10-K PAGE 23
<PAGE> 25
CAPITALIZATION
Historically, Tyler's capital structure has varied depending on the
Company's strategies and actions. Acquisitions for cash and repurchases of
Tyler common stock generally have increased debt, while cash-generating
capabilities of Tyler's operating subsidiaries and dispositions of companies or
assets have provided funds to reduce debt.
Total capitalization at the end of 1997 consisted of $31.4 million in
shareholders' equity. The Company had $2.0 million of letters of credit
outstanding at December 31, 1997, which were released in January 1998.
While the Company has no material commitments for capital expenditures,
Tyler anticipates that 1998 spending for Forest City could exceed last year's
level of $1.2 million. In addition, the combined capital expenditures of
Resources, BRC and INCODE could exceed $2.5 million.
IMPACT OF YEAR 2000
The Year 2000 Issue is the result of computer programs being written using
two digits rather than four to define the applicable year. Thus, a date using
"00" is recognized as the year 1900 rather than 2000. This could result in a
system failure or miscalculations causing disruptions of operations, including,
among other things, a temporary inability to process transactions, send
invoices or engage in similar normal business activities.
The majority of the Company's computer hardware and software susceptible to
this condition is utilized by Forest City, specifically in its electronic POS
and perpetual inventory systems, which were installed in early 1996. In
conjunction with the purchase of the hardware and software, the vendor agreed
to sustain the cost of converting the systems to be Year 2000 compliant.
The project is estimated to be completed not later than second quarter of
1998. The Company believes that with modifications to existing software and
conversions to new software, the Year 2000 Issue will not pose significant
operational problems for its computer systems. However, if such modifications
and conversions are not made, or are not completed timely, the Year 2000 Issue
could have a material impact on the operations of Forest City.
Forest City has yet to commence discussions with its suppliers and customers
concerning their status with regard to the Year 2000 Issue. Forest City will
begin these inquiries during 1998. As Forest City does not place significant
reliance on any single supplier or customer, management believes that a
supplier or customer negatively impacted by the Year 2000 Issue will not have a
material adverse effect on operations.
With regard to the acquisitions of Resources, TSG and INCODE, which occurred
subsequent to December 31, 1997, the Company does not anticipate significant
operational problems. The companies
TYLER CORPORATION FORM 10-K PAGE 24
<PAGE> 26
have either completed or substantially completed their conversions to be Year
2000 compliant. Thus, the Company does not anticipate the Year 2000 Issue to
have a material impact on the normal operations of the companies.
IFS DIVESTITURE
Effective October 15, 1997, the Company sold all of the capital stock of its
subsidiary, IFS, which provided products for fund-raising programs, to I.F.S.
Acquisition Corporation for approximately $8.4 million. This sale resulted in
a loss on disposal of approximately $2.5 million. The estimated loss on
disposal includes estimates regarding the value of certain assets that are
subject to change. Management does not expect these estimates to have a
significant impact on the estimated loss on disposal. Proceeds consisted of
approximately $5.8 million in cash received at closing and approximately $2.6
million received in January 1998. The results of IFS are included in the
Company's consolidated financial statements as discontinued operations.
TYLER PIPE DIVESTITURE
On December 1, 1995, the Company sold substantially all of its assets to
the Buyer, and the Buyer assumed substantially all the liabilities of TPI. In
the same transaction, the Company sold all of the outstanding capital stock of
Swan (which was repurchased in May 1997) to the Buyer. The results of these
entities and the effect of subsequent changes in estimates of retained
contingent liabilities are included as discontinued operations. The assets TPI
sold and the liabilities the Buyer assumed included all those relating to TPI's
business of manufacturing and marketing cast iron pipe and fittings, excluding
cash and certain other assets and liabilities. Swan was a motor- carrier
company that provided transportation services to TPI prior to the closing.
Based on a July 1, 1995, balance sheet, the Buyer paid a net amount of $66.1
million for the assets of TPI and the stock of Swan, of which $58.5 million was
received on December 1, 1995, and the net remaining payment was received in
January 1996. In addition, Tyler Pipe Industries, Inc. distributed cash of
approximately $17.7 million to the Company from July 1, 1995, through December
1, 1995.
Between 1968 and December 1995, TPI, together with its predecessors and
subsidiaries, owned and operated foundries. TPI is, and expects to continue to
be, involved in different types of litigation, including environmental claims
and claims for work-related injuries and physical conditions. See "Legal
Proceedings." Costs associated with investigation of such matters are included
in other liabilities at December 31, 1997 and 1996.
TYLER CORPORATION FORM 10-K PAGE 25
<PAGE> 27
FORWARD-LOOKING STATEMENTS
This report contains forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933, as amended, and Section 21E of the
Securities Exchange Act of 1934, as amended. All statements other than
historical or current facts, including, without limitation, statements about
the business, financial condition, business strategy, plans and objectives of
management and prospects of the Company are forward-looking statements.
Although the Company believes that the expectations reflected in such
forward-looking statements are reasonable, such forward-looking statements are
subject to risks and uncertainties that could cause actual results to differ
materially from these expectations. Such risks and uncertainties include,
without limitation, changes in product demand, turnover in the sales force, the
availability of products, changes in competition, economic conditions, various
inventory risks due to changes in market conditions, decrease in demand for
information management services or record services generally or by governmental
authorities, new technological developments, decrease in demand for aftermarket
automotive parts, changes in tax and other governmental rules and regulations
applicable to the Company, and other risks indicated in the Company's filings
with the Securities and Exchange Commission. These risks and uncertainties are
beyond the ability of the Company to control and, in many cases, the Company
cannot predict the risks and uncertainties that could cause actual results to
differ materially from those indicated by the forward-looking statements. When
used in this report, the words "believes," "plans," "estimates," "expects,"
"anticipates," "intends," and similar expressions as they relate to the Company
or its management are intended to identify forward-looking statements.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK.
Not applicable.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA.
The consolidated financial statements of the Company, together with the
report of independent auditors, are included on pages 33 through 55 of this
report. Financial statement schedules have been omitted because the required
information is contained in the consolidated financial statements or related
notes, or such information is not applicable.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE.
Not applicable.
TYLER CORPORATION FORM 10-K PAGE 26
<PAGE> 28
PART III
The information required by Items 10 through 13 of Part III is incorporated
herein by reference from the indicated sections of Tyler's definitive proxy
statement for its annual meeting of stockholders to be held on April 28, 1998
(the "Proxy Statement"). Only those sections of the Proxy Statement that
specifically address the items set forth herein are incorporated by reference.
Such incorporation by reference does not include the Compensation Committee
Report or the Stock Performance Graphs, included in the Proxy Statement.
<TABLE>
<CAPTION>
Headings in
Proxy Statement
---------------------------------------
<S> <C>
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT. "Directors and Executive Officers"
ITEM 11. EXECUTIVE COMPENSATION. "Executive Compensation"
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS "Security Ownership of Directors and
AND MANAGEMENT. Executive Officers"
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS. "Certain Transactions"
</TABLE>
TYLER CORPORATION FORM 10-K PAGE 27
<PAGE> 29
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K.
(a) (1) The consolidated financial statements listed in the "Index to
Financial Statements" included in the Table of Contents on page 1
are filed as part of this report.
(2) Financial statement schedules have been omitted because the
required information is contained in the consolidated financial
statements or related notes, or such information is not
applicable.
(3) Exhibits
Certain of the exhibits to this report are hereby incorporated by
reference, as specified:
3.1 Restated Certificate of Incorporation of Tyler Three, as amended
through May 14, 1990, and Certificate of Designation of Series A Junior
Participating Preferred Stock (filed as Exhibit 3.1 to the Company's
Form 10-Q for the quarter ended June 30, 1990, and incorporated
herein).
3.2 Certificate of Amendment to the Restated Certificate of Incorporation
(filed as Exhibit 3.1 to the Company's Form 8-K, dated February 19,
1998, and incorporated herein).
*3.3 Amended and Restated By-Laws of Tyler Corporation, dated November 4,
1997.
4.1 Rights Agreement, dated as of March 14, 1993, by and between Tyler
Corporation and The First National Bank of Boston, as Rights Agent,
which includes the form of Rights Certificate as Exhibit B thereto
(filed as Exhibit 4 to the Company's Form 8-K, dated January 29, 1993,
and incorporated herein).
4.2 Specimen of Common Stock Certificate (filed as Exhibit 4.1 to the
Company's registration statement no. 33-33505 and incorporated herein).
*4.3 Credit agreement among Tyler Corporation and NationsBank of Texas,
N.A., dated February 13, 1998.
10.1 Form of Indemnification Agreement for directors and officers (filed as
Exhibit 10.1 to the Company's Form 10- Q for the quarter ended March
31, 1992, and incorporated herein).
10.2 Stock Option Plan amended and restated as of February 7, 1997 (filed as
Exhibit 4.1 to the Company's registration statement no. 33-34809 and
incorporated herein).
10.3 Split-dollar life insurance agreement with Joseph F. McKinney (filed as
Exhibit 10.5 to the Company's registration statement no. 33-33505 and
incorporated herein).
10.4 Supplemental Retirement Plan (filed as Exhibit 10.6 to the Company's
registration statement no. 33-33505 and incorporated herein).
10.5 Indemnification Agreement, dated December 20, 1989 (filed as Exhibit
2.3 to the Company's registration statement no. 33-33505 and
incorporated herein).
TYLER CORPORATION FORM 10-K PAGE 28
<PAGE> 30
10.6 Agreement and Plan of Merger among Tyler Corporation, T1 Acquisition
Corporation, Business Resources Corporation and William D. Oates dated
October 8, 1997 (filed as Exhibit 10.25 to the Company's Form 8-K,
dated October 16, 1997, and incorporated herein).
10.7 Agreement and Plan of Merger among Tyler Corporation, T2 Acquisition
Corporation, The Software Group, Inc., Brian B. Berry and Glenn A.
Smith dated October 8, 1997 (filed as Exhibit 10.26 to the Company's
Form 8-K, dated October 16, 1997, and incorporated herein).
10.8 Second Amended and Restated Agreement and Plan of Merger, dated as of
December 29, 1997, and effective as of October 8, 1997, among the
Company, T1 Acquisition Corporation, Business Resources Corporation,
and William D. Oates (filed as Exhibit 10.1 to the Company's Form 8-K,
dated February 19, 1998, and incorporated herein).
10.9 Amended and Restated Agreement and Plan of Merger, dated as of December
29, 1997, and effective as of October 8, 1997, among the Company, T2
Acquisition Corporation, The Software Group, Inc., and Brian B. Berry
and Glenn A. Smith (filed as Exhibit 10.2 to the Company's Form 8-K,
dated February 19, 1998, and incorporated herein).
10.10 Amendment Number One, dated February 19, 1998, and effective as of
October 8, 1997, to the Amended and Restated Agreement and Plan of
Merger among the Company, T2 Acquisition Corporation, The Software
Group, Inc. and Brian B. Berry and Glenn A. Smith (filed as Exhibit
10.3 to the Company's Form 8-K, dated February 19, 1998, and
incorporated herein).
10.11 Acquisition Agreement dated as of November 20, 1995, by and among the
Registrants, Tyler Pipe Industries, Inc. and Ransom Industries, Inc.,
formerly known as Union Acquisition Corporation (filed as Exhibit 2.1
to the Company's Form 8-K, dated December 14, 1995, and incorporated
herein).
10.12 Purchase Agreement between Tyler Corporation, Richmond Partners, Ltd.
and Louis A. Waters, dated August 20, 1997 (filed as Exhibit 10.24 to
the Company's Form 8-K, dated September 2, 1997, and incorporated
herein).
10.13 Consulting Agreement between the Company and Joseph F. McKinney, dated
October 7, 1996 (filed as Exhibit 10.20 to the Company's Form 10-K for
the year ended December 31, 1996, and incorporated herein).
10.14 Employment agreement between the Company and Bruce W. Wilkinson, dated
March 28, 1997 (filed as Exhibit 10.21 to the Company's Form 10-Q for
the quarter ended March 31, 1997, and incorporated herein).
*10.15 Employment agreement between the Company and C.A. Rundell, Jr., dated
October 8, 1997.
*10.16 Employment agreement between the Company and Brian K. Miller, dated
December 1, 1997.
*10.17 Employment agreement between the Company and Harold W. Parkison, dated
January 6, 1997.
*21 Subsidiaries of Tyler
TYLER CORPORATION FORM 10-K PAGE 29
<PAGE> 31
*23 Consent of Ernst & Young LLP
Tyler will furnish copies of these exhibits to shareholders upon
written request and payment for copying charges of $0.15 per page.
* Filed herewith.
(b) Reports on Form 8-K
<TABLE>
<CAPTION>
Form 8-K Item Financial Statements
Reported Date Reported Filed
------------- -------- --------------------
<S> <C> <C>
10/16/97 5
7 (c) Exhibits
10/30/97 2
7(b) Pro Forma Condensed Consolidated
Balance Sheet as of June 30, 1997
Pro Forma Condensed Consolidated
Income Statements for the year ended
December 31, 1996 and the six months
ended June 30, 1997
12/31/97 5
7(c) Restated Selected Financial Data,
Management's Discussion and Analysis
of Financial Condition and Results of
Operations and consolidated financial
statements as of December 31, 1995 and
1996, and for the three years in the
period ended December 31, 1996
</TABLE>
TYLER CORPORATION FORM 10-K PAGE 30
<PAGE> 32
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed
on its behalf by the undersigned, thereunto duly authorized.
TYLER CORPORATION
Date: March 25, 1998 By: /s/ Louis A. Waters
---------------------------------
Louis A. Waters
Chairman of the Board
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
Date: March 25, 1998 By: /s/ Louis A. Waters
---------------------------------
Louis A. Waters
Chairman of the Board
Date: March 25, 1998 By: /s/ C. A. Rundell, Jr.
---------------------------------
C. A. Rundell, Jr.
President, Chief Executive
Officer, and Director
(principal executive officer)
Date: March 25, 1998 By: /s/ James E. Russell
---------------------------------
James E. Russell
Vice President, Chief
Financial Officer, and
Director (principal financial
officer)
Date: March 25, 1998 By: /s/ Brian K. Miller
---------------------------------
Brian K. Miller
Vice President and
Chief Accounting Officer
(principal accounting officer)
TYLER CORPORATION FORM 10-K PAGE 31
<PAGE> 33
Date: March 25, 1998 By: /s/ Ernest H. Lorch
---------------------------------
Ernest H. Lorch
Director
Date: March 25, 1998 By: /s/ F. R. Meyer
---------------------------------
F. R. Meyer
Director
Date: March 25, 1998 By: /s/ William D. Oates
---------------------------------
William D. Oates
Director
TYLER CORPORATION FORM 10-K PAGE 32
<PAGE> 34
REPORT OF INDEPENDENT AUDITORS
The Board of Directors and Shareholders
Tyler Corporation
We have audited the accompanying consolidated balance sheets of Tyler
Corporation as of December 31, 1997 and 1996, and the related consolidated
statements of operations, shareholders' equity, and cash flows for each of the
three years in the period ended December 31, 1997. These financial statements
are the responsibility of the Company's management. Our responsibility is to
express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the consolidated financial statements referred to
above present fairly, in all material respects, the consolidated financial
position of Tyler Corporation at December 31, 1997 and 1996, and the
consolidated results of its operations and its cash flows for each of the three
years in the period ended December 31, 1997, in conformity with generally
accepted accounting principles.
Dallas, Texas
March 6, 1998
TYLER CORPORATION FORM 10-K PAGE 33
<PAGE> 35
CONSOLIDATED STATEMENTS OF OPERATIONS
Years ended December 31
<TABLE>
<CAPTION>
1997 1996 1995
------------- ------------- -------------
<S> <C> <C> <C>
Net sales .................................................. $ 76,429,000 $ 85,074,000 $ 86,893,000
Costs and expenses
Cost of sales ........................................... 43,947,000 49,275,000 51,126,000
Selling, general and administrative expenses ............ 31,944,000 43,631,000 36,703,000
Interest (income) expense, net .......................... (830,000) (277,000) 1,003,000
Goodwill and other intangibles impairment
charge ............................................... -- 14,789,000 --
------------- ------------- -------------
75,061,000 107,418,000 88,832,000
Income (loss) from continuing operations before
income tax (benefit) .................................... 1,368,000 (22,344,000) (1,939,000)
Income tax (benefit)
Current ................................................. 1,695,000 570,000 (1,040,000)
Deferred ................................................ (1,498,000) (3,607,000) 543,000
------------- ------------- -------------
197,000 (3,037,000) (497,000)
------------- ------------- -------------
Income (loss) from continuing operations ................... 1,171,000 (19,307,000) (1,442,000)
Discontinued operations
Income (loss) from discontinued operations,
after income tax (benefit) ........................... (2,051,000) (42,023,000) 1,100,000
Loss on disposal of discontinued operations,
after income tax ..................................... (2,468,000) -- (16,631,000)
------------- ------------- -------------
Loss from discontinued operations ....................... (4,519,000) (42,023,000) (15,531,000)
------------- ------------- -------------
Net loss ................................................... $ (3,348,000) $ (61,330,000) $ (16,973,000)
============= ============= =============
Basic and diluted earnings (loss) per common share:
Continuing operations ................................... $ .06 $ (0.97) $ (0.07)
Discontinued operations ................................. (.22) (2.12) (0.78)
------------- ------------- -------------
Net loss per common share ............................... $ (.16) $ (3.09) $ (0.85)
============= ============= =============
Weighted average shares .................................... 20,498,000 19,876,000 19,869,000
</TABLE>
See accompanying notes.
TYLER CORPORATION FORM 10-K PAGE 34
<PAGE> 36
CONSOLIDATED BALANCE SHEETS
December 31
<TABLE>
<CAPTION>
1997 1996
------------ ------------
<S> <C> <C>
ASSETS
Current assets
Cash and cash equivalents ......................................... $ 8,877,000 $ 15,419,000
Accounts receivable (less allowance for losses of $42,000 in
1997 and 1996) ................................................. 201,000 137,000
Note receivable from I.F.S. Acquisition Corporation ............... 2,628,000 --
Merchandise inventories ........................................... 22,901,000 17,323,000
Income tax receivable ............................................. 516,000 907,000
Prepaid expense ................................................... 394,000 301,000
Deferred income tax benefit ....................................... 762,000 1,804,000
------------ ------------
Total current assets ........................................... 36,279,000 35,891,000
Net assets of discontinued operations ................................ -- 10,857,000
Property, plant and equipment, at cost ............................... 10,339,000 9,427,000
Less allowance for depreciation ................................... 4,759,000 3,755,000
------------ ------------
5,580,000 5,672,000
Other assets
Sundry ............................................................ 2,881,000 1,970,000
Note receivable from Business Resources Corporation ............... 5,700,000 --
Other receivables ................................................. 4,455,000 5,000,000
------------ ------------
13,036,000 6,970,000
------------ ------------
$ 54,895,000 $ 59,390,000
============ ============
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities
Accounts payable .................................................. $ 5,615,000 $ 3,313,000
Accrued wages and commissions ..................................... 788,000 1,597,000
Accrued taxes other than federal income taxes ..................... 1,009,000 1,360,000
Other accrued liabilities ......................................... 4,375,000 6,236,000
------------ ------------
Total current liabilities ...................................... 11,787,000 12,506,000
Deferred income tax .................................................. 3,168,000 5,708,000
Other liabilities .................................................... 8,537,000 9,135,000
Commitments and contingencies
Shareholders' equity
Common stock, $.01 par value, 50,000,000 shares authorized,
23,309,277 shares issued in 1997; 21,309,277 issued in 1996 ... 233,000 213,000
Capital surplus ................................................... 51,216,000 48,520,000
Retained deficit .................................................. (13,431,000) (10,083,000)
------------ ------------
38,018,000 38,650,000
Less 1,552,965 treasury shares in 1997 and 1,428,828 treasury
shares in 1996, at cost ........................................ 6,615,000 6,609,000
------------ ------------
Total shareholders' equity .................................. 31,403,000 32,041,000
------------ ------------
$ 54,895,000 $ 59,390,000
============ ============
</TABLE>
See accompanying notes.
TYLER CORPORATION FORM 10-K PAGE 35
<PAGE> 37
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
Years ended December 31, 1997, 1996 and 1995
<TABLE>
<CAPTION>
Common Stock Treasury Stock
------------------------- Retained --------------------------
Capital Earnings
Shares Amount Surplus (Deficit) Shares Amount
------------ --------- ----------- ------------ ----------- -----------
<S> <C> <C> <C> <C> <C> <C>
Balance at December 31, 1994 .......... 21,309,277 $ 213,000 $48,587,000 $68,220,000 (1,450,178) $(6,722,000)
Issuance of treasury shares upon
exercise of stock options ...... -- -- (57,000) -- 12,770 75,000
Net sale of treasury shares to
employee benefit plan ........... -- -- -- -- 3,625 11,000
Federal income tax benefit related
to exercise of stock options .... -- -- 8,000 -- -- --
Net loss ........................... -- -- -- (16,973,000) -- --
------------ --------- ----------- ------------ ----------- -----------
Balance at December 31, 1995 .......... 21,309,277 213,000 48,538,000 51,247,00 (1,433,783) (6,636,000)
Net sale of treasury shares to
employee benefit plan ........... -- -- (18,000) -- 4,955 27,000
Net loss ........................... -- -- -- (61,330,000) -- --
------------ --------- ----------- ------------ ----------- -----------
Balance at December 31, 1996 .......... 21,309,277 213,000 48,520,000 (10,083,000) (1,428,828) (6,609,000)
Issuance of treasury shares upon
exercise of stock options ...... -- -- (309,000) -- 198,472 682,000
Issuance of treasury shares for
employee stock grants .......... -- -- (442,000) -- 150,000 942,000
Sale of common stock and warrant .. 2,000,000 20,000 3,480,000 -- -- --
Redemption of rights ............... -- -- (220,000) -- -- --
Purchase of treasury shares ........ -- -- -- -- (472,609) (1,630,000)
Federal income tax benefit related
to exercise of stock options .... -- -- 187,000 -- -- --
Net loss ........................... -- -- -- (3,348,000) -- --
------------ --------- ----------- ------------ ----------- -----------
Balance at December 31, 1997 .......... 23,309,277 $ 233,000 $51,216,000 $(13,431,000) (1,552,965) $(6,615,000)
============ ========= =========== ============ =========== ===========
</TABLE>
See accompanying notes.
TYLER CORPORATION FORM 10-K PAGE 36
<PAGE> 38
CONSOLIDATED STATEMENTS OF CASH FLOWS
Years ended December 31
<TABLE>
<CAPTION>
1997 1996 1995
---------- ------------ ------------
<S> <C> <C> <C>
Cash flows from operating activities
Net loss ....................................................... $ (3,348,000) $(61,330,000) $(16,973,000)
Adjustments to reconcile loss from operations to net cash
provided (used) by operations:
Depreciation and amortization ............................... 2,057,000 2,469,000 2,172,000
Goodwill and other intangibles impairment charge ............ -- 14,789,000 --
Other noncash charges ....................................... -- 11,150,000 --
Provision for losses on accounts receivable ................. -- 42,000 --
Deferred income tax (benefit) ............................... (1,498,000) (4,189,000) 953,000
(Increase) decrease in accounts receivable .................. (64,000) 253,000 (158,000)
(Increase) decrease in inventories .......................... (5,578,000) 324,000 572,000
(Increase) decrease in prepaid expenses ..................... (93,000) 124,000 195,000
(Increase) decrease in income tax receivable ................ 391,000 3,341,000 (1,091,000)
Increase (decrease) in accounts payable ..................... 2,170,000 (1,100,000) 533,000
Increase (decrease) in accrued liabilities .................. (4,290,000) (3,322,000) 1,208,000
Decrease in other liabilities ............................... (53,000) (161,000) (300,000)
Discontinued operations - noncash charges and working
capital changes .......................................... 3,555,000 44,916,000 29,115,000
---------- ------------ ------------
Net cash provided (used) by operating .................... (6,751,000) 7,306,000 16,226,000
---------- ------------ ------------
Cash flows from investing activities
Net proceeds from sale of pipe and fittings segment and products
for fund raising programs segment, after expenses ........... 5,847,000 7,599,000 58,540,000
Additions to property, plant and equipment ..................... (1,165,000) (1,034,000) (1,744,000)
Cost of acquisitions, net of cash acquired ..................... -- (1,320,000) --
Proceeds from disposal of property, plant and equipment ........ 36,000 69,000 1,538,000
Investing activities of discontinued operations ................ 8,000 (1,538,000) (8,612,000)
Note receivable from Business Resources Corporation ............ (5,700,000) -- --
Other .......................................................... (1,332,000) 1,664,000 (1,639,000)
---------- ------------ ------------
Net cash provided (used) by investing activities ......... (2,306,000) 5,440,000 48,083,000
---------- ------------ ------------
Cash flows from financing activities
Long-term debt repayments ...................................... -- -- (62,700,000)
Issuance of common stock ....................................... 3,500,000 -- 26,000
Net sale of treasury shares to employee benefit plans .......... 645,000 9,000 11,000
Purchase of treasury shares .................................... (1,630,000) -- --
---------- ------------ ------------
Net cash provided (used) by financing activities ......... 2,515,000 9,000 (62,663,000)
---------- ------------ ------------
Net increase (decrease) in cash and cash equivalents .............. (6,542,000) 12,755,000 1,646,000
Cash and cash equivalents at beginning of year .................... 15,419,000 2,664,000 1,018,000
---------- ------------ ------------
Cash and cash equivalents at end of year .......................... $ 8,877,000 $ 15,419,000 $ 2,664,000
=========== ============ ============
</TABLE>
See accompanying notes.
TYLER CORPORATION FORM 10-K PAGE 37
<PAGE> 39
Notes To Consolidated Financial Statements
Tyler Corporation provides products and services to customers through
its operating subsidiary, Forest City Auto Parts Company ("Forest City"),
which specializes in selling mechanical automotive aftermarket parts to do-it-
yourself customers. Forest City is headquartered in Cleveland, Ohio and
operates 71 retail store locations in Illinois, New York, Ohio, Pennsylvania
and Wisconsin.
(1) Summary of Significant Accounting Policies
PRINCIPLES OF CONSOLIDATION. The consolidated financial statements
include the accounts of Tyler Corporation (the "Company") and its subsidiaries,
all of which are wholly-owned. The Company's continuing operations consist
principally of the operations of Forest City.
INVENTORIES. Inventories are valued at the lower of cost or market.
Costs of inventories are determined by the first-in, first-out method.
DEPRECIATION. Depreciation for financial statement purposes is
provided principally by the straight-line method over the estimated useful
lives of the various assets. Depreciation expense was $1,221,000, $1,368,000
and $1,060,000 for 1997, 1996 and 1995, respectively. For income tax purposes,
accelerated depreciation is used with recognition of deferred income tax for
the resulting temporary differences.
REVENUE RECOGNITION. Substantially all revenue is recognized when
products are delivered to customers.
STATEMENTS OF CASH FLOWS. For purposes of the statements of cash
flows, the Company considers all highly liquid debt instruments purchased with
maturities of three months or less which includes overnight repurchase
agreements, to be cash equivalents. Excess cash during the year was invested
at an average rate of approximately 5%. Interest paid in 1997 and 1996 was
$5,000 and $65,000, respectively. Interest paid in 1995 was $6,935,000, which
includes interest charged to the results of discontinued operations.
USE OF ESTIMATES. The preparation of the financial statements in
conformity with generally accepted accounting principles requires management to
make estimates and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at the date of
the financial statements and the reported amounts of revenues and expenses
during the reporting period. Actual results could differ from those estimates.
TYLER CORPORATION FORM 10-K PAGE 38
<PAGE> 40
ADOPTION OF ACCOUNTING PRONOUNCEMENTS. In June 1997, the Financial
Accounting Standards Board issued Statement No. 130, "Reporting Comprehensive
Income", and Statement No. 131, "Disclosures about Segments of an Enterprise
and Related Information". Both Statements are effective for the Company for
the year ending December 31, 1998. The Company does not anticipate that the
adoption of these standards will have a material impact on the financial
statements.
(2) Discontinued Operations
Effective October 15, 1997, the Company sold all of the capital stock
of its subsidiary which provided products for fund-raising programs,
Institutional Financing Services, Inc. ("IFS"), to I.F.S. Acquisition
Corporation for approximately $8,400,000, resulting in a loss on disposal of
approximately $2,500,000. This estimated loss on disposal includes estimates
regarding the value of certain assets that are subject to change. Management
does not expect these estimates to have a significant impact on the estimated
loss on disposal. Proceeds consisted of approximately $5,800,000 in cash
received at closing and approximately $2,600,000 received in January 1998.
On December 1, 1995, the Company sold all the outstanding capital
stock of Swan Transportation Company ("Swan") to Ransom Industries, Inc.
(formerly known as Union Acquisition Corporation) (the "Buyer"). In the same
transaction, Tyler Pipe Industries, Inc., (subsequently renamed TPI of Texas,
Inc.) ("TPI"), a wholly-owned subsidiary of the Company, sold substantially all
of its assets to the Buyer, and the Buyer assumed substantially all the
liabilities of TPI. The results of these entities and the effects of
subsequent changes in estimates of retained contingent liabilities are included
as discontinued operations. The assets TPI sold and the liabilities the Buyer
assumed included all those relating to TPI's business of manufacturing and
marketing cast iron pipe and fittings, excluding cash and certain other assets
and liabilities. Swan was a motor-carrier company that provided transportation
services to TPI prior to the closing.
Based on a July 1, 1995, balance sheet, the Buyer paid a net amount of
$66,139,000 for the stock of Swan and assets of TPI of which $58,540,000 was
received at closing on December 1, 1995, and the net remaining payment was
received in January 1996. In addition, TPI distributed approximately
$17,700,000 to the Company from July 1, 1995, through closing.
TYLER CORPORATION FORM 10-K PAGE 39
<PAGE> 41
Operating results of the discontinued pipe and fittings segment and
the products for fund-raising programs segment for the years ended December 31,
1997, 1996 and 1995 are as follows:
<TABLE>
<CAPTION>
1997 1996 1995
------------ ------------ ------------
<S> <C> <C> <C>
Net sales ..................... $ 21,913,000 $ 43,299,000 $256,197,000
Income (loss) before income
tax (benefit) .............. (3,131,000) (43,993,000) 2,613,000
Income tax (benefit) .......... (1,080,000) (1,970,000) 1,513,000
------------ ------------ ------------
Net income (loss) from
discontinued operations .... $ (2,051,000) $(42,023,000) $ 1,100,000
============ ============ ============
</TABLE>
Interest has been charged to discontinued operations based on net
assets of the pipe and fittings segment and the products for fund-raising
programs segment. Interest expense allocated to discontinued operations in
1995 was $4,546,000. Income tax (benefit) has been charged (credited) to
discontinued operations based on the income tax (benefit) resulting from
inclusion of the discontinued segments in the Company's consolidated federal
income tax return.
The income tax (benefit) differs from the amount which would be
provided by applying the statutory income tax rate to income (loss) before
income tax (benefit) due primarily to differences resulting from excess book
over tax amortization and differences in book and tax bases of inventory and
fixed assets.
Discontinued operations for the products for fund-raising programs
segment in the fourth quarter of 1996 includes a goodwill impairment charge of
$37,316,000 related to the 1994 acquisition of IFS by the Company. The
continued decline in the financial results in the second half of 1996 and a
related strategic and operational review resulted in an evaluation of goodwill
and other intangibles for possible impairment. The underlying factors
contributing to the decline in financial results included changes in the
marketplace and increased competition. The Company calculated the present
value of expected cash flows to estimate the fair value of IFS. In addition,
IFS also recorded $198,000 of restructuring and other charges in the fourth
quarter of 1996, in connection with a restructuring plan to discontinue a
small product line. Also in the fourth quarter of 1996, IFS recorded charges
of $2,449,000 which included a provision for uncollectable accounts receivable
and the write-down of excess inventory remaining after fourth-quarter sales
declines.
Included in the discontinued operations' income before income tax in
1995 are losses relating to IFS's foreign operations of $782,000.
TYLER CORPORATION FORM 10-K PAGE 40
<PAGE> 42
Income tax of $4,157,000 on the loss on disposal of the discontinued
pipe and fittings segment differs from the amount which would be provided by
applying the statutory income tax rate to the pretax loss primarily as a result
of excess book over tax amortization and differences in book and tax bases of
inventory, fixed assets and goodwill.
No current tax benefit was provided on the loss on disposal of the
products for fund-raising programs due to the character of the loss.
The Company recorded a pretax charge from other discontinued
operations of $2,000,000 in 1996 for the investigation of certain claims and
contingent claims (see Note 13).
(3) Acquisitions
Pursuant to the 1994 IFS acquisition agreement, the Company made a
$1,208,000 payment in the third quarter of 1996 to former shareholders and
executives of IFS. The amount was accrued at December 31, 1995.
In connection with the 1991 acquisition of Forest City, the Company
was obligated to make payments up to a specified amount on or before March 31,
1996, if certain profit objectives were met, some of which would be paid as
bonuses to certain executives of Forest City. As a result, the Company made a
final payment of $1,320,000 in the first quarter of 1996 to former shareholders
and certain other executives of Forest City. The amount paid was accrued at
December 31, 1995. In addition, the Company paid $660,000 in 1994 for 1993
performance, $660,000 in 1993 for 1992 performance and $660,000 in 1992 for
1991 performance for a total of $3,300,000 since the acquisition. Each payment
included both additional purchase price and bonus components and was recorded
accordingly in the year earned. Of the total amount paid, $2,160,000 was paid
to former shareholders and considered additional purchase price with additional
goodwill recorded. The remaining $1,140,000 was considered special incentive
bonuses to certain executives of Forest City as designated by the former
shareholders and provided for in the sales agreement. These bonus amounts were
expensed as earned and included in selling, general and administrative
expenses.
TYLER CORPORATION FORM 10-K PAGE 41
<PAGE> 43
(4) Related Party Transaction
Effective October 8, 1997, the Company entered into an agreement to
acquire Business Resources Corporation ("Resources") and received shareholder
approval for the transaction on February 19, 1998 (see Note 16). In connection
with this transaction, the Company loaned Resources $5,700,000 on December 29,
1997, for working capital purposes. The unsecured loan bears interest at 8.5%
and matures on September 30, 1999.
(5) Property, Plant and Equipment
Property, plant and equipment consist of the following at December 31:
<TABLE>
<CAPTION>
Estimated
Useful Lives
(in years) 1997 1996
------------ --------- ---------
<S> <C> <C> <C>
Land .............................. $ 457,000 $ 457,000
Buildings and leasehold
improvements ................... 7 to 30 4,169,000 3,825,000
Machinery and transportation
equipment ...................... 4 to 10 5,713,000 5,145,000
----------- -----------
$10,339,000 $ 9,427,000
=========== ===========
</TABLE>
(6) Bank Debt
The Company had outstanding letters of credit aggregating $2,000,000
at December 31, 1997, relating to guarantees of performance to a third party
for potential environmental remediation. The outstanding letters of credit
were secured by cash collateral and were released and canceled in February
1998.
In February 1998, the Company entered into a three year bank credit
agreement for revolving lines of credit totaling $50,000,000 (see Note 16).
TYLER CORPORATION FORM 10-K PAGE 42
<PAGE> 44
(7) Income Tax
The provision (benefit) for income tax consists of the following at
December 31:
<TABLE>
<CAPTION>
1997 1996 1995
----------- ----------- -----------
<S> <C> <C> <C>
Current:
Federal ....................................... $ 1,860,000 $ 570,000 $(1,040,000)
State ......................................... (165,000) -- --
----------- ----------- -----------
1,695,000 570,000 (1,040,000
Deferred ......................................... (1,498,000) (3,607,000) 543,000
----------- ----------- -----------
$ 197,000 $(3,037,000) $ (497,000)
=========== =========== ===========
</TABLE>
The income tax provision (benefit) differs from amounts computed by
applying the statutory tax rate to income (loss) from continuing operations as
follows:
<TABLE>
<CAPTION>
Years ended December 31,
---------------------------------------------
1997 1996 1995
----------- ----------- -----------
<S> <C> <C> <C>
Income tax (benefit) at statutory rate .................. $ 479,000 $(7,820,000) $ (678,000)
State income tax, net of federal
income tax benefit ................................... (107,000) -- --
Life insurance .......................................... -- 534,000 (5,000)
Excess book amortization ................................ 13,000 134,000 139,000
Goodwill and other intangibles
impairment charge .................................... -- 4,075,000 --
Utilization of capital loss ............................. (188,000) -- --
Other, net .............................................. -- 40,000 47,000
----------- ----------- -----------
$ 197,000 $(3,037,000) $ (497,000)
=========== =========== ===========
</TABLE>
TYLER CORPORATION FORM 10-K PAGE 43
<PAGE> 45
Significant components of deferred tax assets and liabilities as of
December 31 are as follows:
<TABLE>
<CAPTION>
1997 1996
------------ ------------
<S> <C> <C>
Deferred income tax assets:
Inventories ...................................... $ (400,000) $ 316,000
Insurance reserves ............................... 98,000 98,000
Operating expenses not currently deductible ...... 2,082,000 2,771,000
Employee benefit plans ........................... 148,000 139,000
Net operating loss ............................... 1,763,000 --
Capital loss ..................................... 11,723,000 --
Other ............................................ 169,000 147,000
------------ ------------
Total deferred income tax assets .............. $ 15,583,000 $ 3,471,000
------------ ------------
Deferred income tax liabilities:
Tax-benefit transfer lease ....................... (4,512,000) (5,370,000)
Property, plant and equipment .................... (1,594,000) (1,748,000)
Other ............................................ (160,000) (257,000)
------------ ------------
Total deferred income tax liabilities ......... $ (6,266,000) $ (7,375,000)
------------ ------------
Net deferred income tax assets (liabilities)
before valuation allowance .................... 9,317,000 (3,904,000)
Less valuation allowance ......................... 11,723,000 --
------------ ------------
Net deferred income tax liabilities ................. $ (2,406,000) $ (3,904,000)
============ ============
</TABLE>
The Company received refunds of prior years' income taxes of $95,000
in 1997 and $4,693,000 in 1996. The Company paid income taxes, net of refunds
received, of $803,000 in 1995.
TYLER CORPORATION FORM 10-K PAGE 44
<PAGE> 46
(8) Leases
The Company leases certain offices, retail stores, transportation,
computer and other equipment used in its operations under noncancellable
operating lease agreements expiring at various dates through 2010. Most leases
contain renewal options and some contain purchase options. The leases
generally provide that the Company pay taxes, maintenance, insurance and
certain other operating expenses.
Rent expense was approximately $2,213,000 in 1997, $2,405,000 in 1996
and $2,349,000 in 1995. Minimum rental payments under the leases described
above are as follows:
<TABLE>
Year ended December 31:
<S> <C>
1998 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 2,954,000
1999 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,454,000
2000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,032,000
2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,725,000
2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,239,000
Thereafter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,949,000
---------------
$ 14,353,000
===============
</TABLE>
(9) Earnings Per Share
The following table sets forth the computation of basic and diluted
earnings per share:
<TABLE>
<CAPTION>
Years ended December 31,
-----------------------------------------------
1997 1996 1995
------------ ------------ ------------
<S> <C> <C> <C>
Numerator for basic and diluted earnings per share:
Income (loss) from continuing operations ........... $ 1,171,000 $(19,307,000) $ (1,442,000)
============ ============ ============
Denominator:
Denominator for basic earnings per share -
weighted average shares ............................ 20,498,000 19,876,000 19,869,000
Effect of dilutive securities:
Employee stock options ............................. 222,000 -- --
Warrant ............................................ 268,000 -- --
------------ ------------ ------------
Dilutive potential common shares ...................... 490,000 -- --
Denominator for diluted earnings per share-
adjusted weighted-average shares and
assumed conversion .............................. 20,988,000 19,876,000 19,869,000
============ ============ ============
Basic and diluted earnings (loss) per share from
continuing operations ........................... $ .06 $ (.97) $ (.07)
============ ============ ============
</TABLE>
TYLER CORPORATION FORM 10-K PAGE 45
<PAGE> 47
The Company adopted Statement of Financial Accounting Standards No.
128, "Earnings Per Share", in the fourth quarter of 1997 and restated prior
years as necessary.
The Company incurred losses from continuing operations in 1996 and
1995. As a result, the denominator was not adjusted for dilutive securities in
1996 and 1995 as the effect would be antidilutive.
Options to purchase 50,000 shares of common stock at $5.25 per share
were outstanding from December 1997, but were not included in the computation
of diluted earnings per share because the options' exercise price was greater
than the average market price of the common shares and, therefore, the effect
would be antidilutive.
On February 19, 1998, the Company issued approximately 12,200,000
shares of common stock in connection with acquisitions (see Note 16).
(10) Employee Benefit Plans
Forest City maintains a profit-sharing plan for the benefit of its
eligible employees. The amount of Forest City's contribution to the
profit-sharing plan is determined by its board of directors but may not exceed
15% of the aggregate compensation paid by Forest City to eligible employees for
any plan year. Forest City's annual contribution to the profit-sharing plan
was $90,000 in 1997, 1996 and 1995.
Prior to TPI's sale of assets to the Buyer on December 1, 1995, the
Company maintained a defined benefit pension plan (the "Plan") which provided
income and death benefits for certain employees of the Company and employees of
TPI. The benefits were generally based on final average salary and years of
service. The Company's policy was to fund net pension cost accrued. However,
the Company would not contribute an amount less than the minimum funding
requirements of the Employee Retirement Income Security Act of 1974 or more
than the maximum tax-deductible amount.
In connection with TPI's sale of assets to the Buyer and pursuant to
the terms of the acquisition agreement among the Company, TPI and the Buyer
(the "Acquisition Agreement"), the Company froze benefit accruals for all TPI
employees on December 1, 1995, and transferred the benefit obligation relating
to the TPI employees and the related assets to a new plan established by the
Buyer (the "Buyer Plan") in April 1996. The assets transferred to the Buyer
Plan consisted principally of publicly traded stocks and bonds, U.S. government
securities and 251,200 shares of the Company's common stock. The assets
remaining in the Company's Plan were invested in short-term fixed income
securities. As a result, the Company recognized an accrued curtailment gain in
1995 of approximately $2,700,000. The curtailment gain reduced the loss on
disposal of discontinued operations in 1995.
TYLER CORPORATION FORM 10-K PAGE 46
<PAGE> 48
Subsequent to the asset and obligation transfer to the Buyer Plan, the
Company terminated the Plan on June 30, 1996, and determined that the remaining
Plan assets exceeded the obligation relating to the remaining participants. As a
result, the Plan was amended to provide a "pro rata benefit increase" as
described in section 4980(d)(3) of the Internal Revenue Code of 1986. This
amendment allows the excise tax associated with the excess asset reversion to be
20% rather than 50%. The Company received a favorable determination letter from
the IRS in November 1996 relating to the termination of the Plan including the
terms of the pro rata benefit increase. As a result of the amendment and
termination of the Plan, the Company received cash and recorded income from
reversion of excess assets from a defined benefit pension plan of approximately
$2,300,000 and accrued an excise tax liability of approximately $465,000 in
December 1996. In addition, the Company also recorded a settlement loss of
approximately $3,700,000 and reduced the related prepaid pension asset in
accordance with Statement of Financial Accounting Standards No. 88 - "Employers'
Accounting for Settlements and Curtailments of Defined Benefit Pension Plans and
for Termination of Benefits." These two events, the income reversion and the
settlement of the pension plan, resulted in a net charge of $1,865,000. Final
distributions were paid to all remaining participants in the form of lump-sum
settlements. No assets or liabilities of the Plan remained at December 31, 1996.
In addition, no pension cost was recorded in 1996.
Prior to TPI's sale of assets to the Buyer on December 1, 1995, the
Company maintained several other benefit plans for certain key employees of the
Company and TPI. These plans were also terminated in 1996. Approximately 55%
of these benefits were funded by insurance policies which were redeemed in
1996. The Company made final settlement payments of approximately $2,400,000
in 1996 and an additional $1,300,000 remained accrued at December 31, 1996,
which was paid in January 1997.
Prior to TPI's sale of assets to the Buyer on December 1, 1995, the
Company maintained a savings and investment plan primarily for the employees of
TPI and certain other employees of the Company. As a result of the sale, the
Company ceased substantially all contributions as of December 1, 1995. The
Company transferred all TPI employee account balances to a new plan established
by the Buyer in the first quarter of 1996 and received governmental approval in
November 1996 to terminate the remaining savings and investment plan. All
account balances were distributed by year end. Substantially all expenses in
1995 relating to the savings and investment plan are included in discontinued
operations.
TYLER CORPORATION FORM 10-K PAGE 47
<PAGE> 49
(11) Restructuring and Other Fourth-Quarter Charges
In the fourth quarter of 1996, the Company recorded $1,731,000 of
restructuring and other charges in connection with a restructuring plan to
reduce costs and increase future operating efficiency by reducing the work
force, closing and relocating Forest City stores and reducing corporate office
space requirements. Also in the fourth quarter of 1996, the Company recorded
charges of $3,654,000 which included obligations relating to the termination of
former employees, vendor restocking charges for on-hand inventory items at
Forest City and the noncash write-off of certain fixed assets and software
which Forest City decided in the fourth quarter that it would no longer utilize
in its business. In addition, the Company terminated its defined benefit
pension plan in December 1996 resulting in a net charge of approximately
$1,865,000 (see Note 10).
The total restructuring and other charges recorded in the fourth
quarter of 1996 were $7,250,000 of which $612,000 is included in cost of sales
and $6,638,000 is included in selling, general and administrative expenses.
See Note 2 for additional information regarding restructuring and
other fourth-quarter charges.
(12) Goodwill and Other Intangibles Impairment Charge
Prior to December 1996, goodwill was amortized over 40 years. In
December 1996, the Company recognized a goodwill and other intangibles
impairment charge of $14,789,000 related to the 1991 acquisition of Forest
City. The continued decline in the financial results of Forest City in the
second half of 1996 and a related strategic and operational review resulted in
an evaluation of goodwill and other intangibles for possible impairment. The
underlying factors contributing to the decline in financial results included
changes in the marketplace and increased competition. The Company calculated
the present value of expected cash flows to estimate the fair value of the
operating company.
See Note 2 for additional information regarding goodwill and other
intangibles impairment charge.
(13) Commitments and Contingencies
The New Jersey Department of Environmental Protection and Energy
("NJDEPE") has alleged that a site where a former affiliate of TPI,
Jersey-Tyler Foundry Company ("Jersey-Tyler"), once
TYLER CORPORATION FORM 10-K PAGE 48
<PAGE> 50
operated a foundry contains lead and possible other priority pollutant metals
and may need on-site and off-site remediation. The site was used for foundry
operations from the early part of this century to 1969, when it was acquired by
Jersey-Tyler. Jersey-Tyler operated the foundry from 1969 to 1976, at which
time the foundry was closed. In 1976, Jersey-Tyler sold the property to other
persons who have operated a salvage yard on the site. Based on a remedial
investigation conducted by TPI, the NJDEPE has demanded TPI remediate the
foundry site and the contamination in the adjacent stream and nearby lake. TPI
has offered to conduct a feasibility study to assess remediation options,
including costs, but has not agreed to commit to further action. TPI never
held title to the site and denies liability.
Based upon preliminary engineering estimates, management currently
estimates the cost associated with the investigation or remediation of the New
Jersey site to be approximately $6,500,000. This amount is accrued and is
included in other liabilities in the accompanying consolidated balance sheet.
The New Jersey site has been under active investigation by the NJDEPE since
1992 and such investigation is expected to continue for several more years.
The proposed feasibility study has not yet begun or been authorized by the
NJDEPE. Loss estimates are based on the application of reasonable remediation
options. The Company believes that the NJDEPE will select the most cost
effective, environmentally sound remediation alternative. Factors such as
additional engineering and analytical services required and/or the amount of
soil which must be excavated and disposed of, if any, or other cost relating to
the disposal of soil could impact the loss estimate.
In connection with TPI's sale of substantially all its assets to the
Buyer, on December 1, 1995, pursuant to the Acquisition Agreement, the Buyer
agreed to manage and direct the prosecution or defense of these matters on
behalf of TPI. In addition, the Buyer agreed to reimburse TPI for the first
$3,000,000 incurred in connection with the investigation or remediation of the
New Jersey site, and one-half of such expenses in excess of $3,000,000. Under
any circumstances, however, the maximum amount that the Buyer agreed to
reimburse TPI in connection with this matter is $6,500,000. As of December 31,
1996, management estimated total cost to investigate or remediate the New
Jersey site to be $7,000,000. In accordance with the above-mentioned
provisions of the Acquisition Agreement, the Company recorded a $5,000,000
receivable due from the Buyer for its portion of the estimated costs as of
December 31, 1996. This amount is presented as other receivables in the
accompanying consolidated balance sheets. As of December 31, 1997,
approximately $500,000 of expenses in connection with the investigation of the
New Jersey site, have been paid by TPI and as provided for in the Acquisition
Agreement, the Buyer has reimbursed this amount to TPI. Accordingly,
management currently estimates the total cost remaining in connection with the
investigation or remediation of the New Jersey site to be approximately
$6,500,000 and the related receivable from the Buyer to be approximately
$4,500,000.
TYLER CORPORATION FORM 10-K PAGE 49
<PAGE> 51
The Buyer, on behalf of TPI, is proceeding against predecessor owners and
operators of the site, as well as others, to bear their share of the cost of
the investigation and any other costs, including any remediation costs incurred
by TPI. Some costs may also be covered by insurance, although the insurance
carriers have initially denied coverage. TPI expects to proceed against such
insurance carriers seeking coverage of remediation costs. Recoveries from
predecessor companies and insurance companies are shared by TPI and the Buyer.
Pursuant to the Acquisition Agreement, the Buyer agreed to manage and
direct the prosecution or defense of certain other matters on behalf of TPI and
to reimburse related costs and expenses. The Buyer agreed to reimburse TPI the
first $750,000 of all costs and expenses incurred in connection with each such
matter and one-half of such expenses in excess of $750,000. The maximum amount
that the Buyer agreed to reimburse TPI in connection with all of these matters,
excluding Jersey-Tyler, is $8,000,000. Although it is impossible to predict
the outcome of legal or regulatory proceedings, the Company believes that
substantially all of the costs, expenses and damages, if any, resulting from
the legal proceedings and environmental matters described above will be
reimbursed by the Buyer pursuant to the Acquisition Agreement or have been
adequately provided for in the financial statements.
The Buyer did not agree to reimburse TPI for, among other things, (a)
liabilities relating to the use, handling, manufacture or sale of products
containing asbestos or silica, (b) claims of individuals for health problems
such as (but not limited to) silicosis, or (c) offsite environmental
liabilities. Between 1968 and December 1995, TPI owned and operated foundries.
TPI is, and expects to continue to be, involved in different types of
litigation for which it will not be reimbursed by the Buyer. Beginning in
February 1997, over fifty former employees of TPI have filed a series of
separate personal injury lawsuits which allege that they were exposed to
silica, asbestos and/or other industrial dusts during their employment at TPI.
Named as defendants with TPI and Swan, another wholly-owned subsidiary of the
Company, are major suppliers of asbestos, sand and industrial respirator
devices. These co-defendants have been sued under product liability theories
of recovery. The plaintiffs seek to recover money damages for the personal
injuries they allegedly suffered as a result of their occupational exposure to
silica, asbestos and other industrial dusts. No discovery has taken place, and
it is not possible to predict the outcome at this time. In light of the
current litigation, and based on a preliminary assessment of claims and
contingent claims that may result in future litigation involving TPI, a pretax
charge from discontinued operations of $2,000,000 was recorded in 1996 for such
matters. This amount is included in other liabilities in the accompanying
balance sheets at December 31, 1997 and 1996. Since TPI retained the
responsibilities for these liabilities and in connection with these matters,
the Company repurchased all the outstanding capital stock of Swan from the
Buyer for its net book value of
TYLER CORPORATION FORM 10-K PAGE 50
<PAGE> 52
approximately $400,000 in may 1997. Prior to the repurchase, Swan had disposed
of all its trucking assets. While the Company plans to defend this litigation
vigorously, the ultimate outcome is uncertain.
On September 25, 1997, a former employee of a Forest City store
brought suit against Forest City and the Company in the Supreme Court of Erie
County, New York. The plaintiff alleges that employees of Forest City falsely
accused her of falsifying overtime entries, terminated her employment on that
basis, filed a criminal report based upon the false overtime entries and forced
her to sign a restitution agreement. Based upon these allegations, the
plaintiff is suing for slander, intentional abuse of the criminal law
enforcement process and intentional and negligent infliction of emotional
distress. The plaintiff is seeking compensatory damages of at least $1,500,000
and punitive damages of at least $3,000,000. The Company believes the claims
are without merit and intends to defend this action vigorously.
Other than ordinary course, routine litigation incidental to the
business of the Company and except as described herein, there are no other
material legal proceedings pending to which the Company or its subsidiaries are
parties or to which any of its properties are subject.
TYLER CORPORATION FORM 10-K PAGE 51
<PAGE> 53
(14) Shareholders' Equity
The Company has authorized 1,000,000 shares of $10 par value voting
preferred stock. The board of directors has designated 250,000 shares as
Series A Junior Participating Preferred Stock which were reserved for issuance
upon exercise of the Company's stock purchase rights. In December 1997, the
board of directors authorized the redemption of the preferred stock purchase
rights in connection with proposed acquisitions (see Note 16). The rights were
redeemed in January 1998 at $.01 per share. Prior to this redemption, each
share of the Company's common stock included a stock purchase right. These
rights, which did not have voting rights, could be exercised only after public
announcement that a person or group had acquired 20% or more of the Company's
common stock or public announcement of an offer for 30% or more of the
Company's common stock. The Company had the right to redeem the rights at a
price of $.01 per right at any time prior to 15 days (or such longer period as
the board of directors may have determined) after the acquisition of 20% of the
Company's common stock. Upon exercise each right could have been used to
purchase 1/100 of a share of Series A Junior Participating Preferred Stock for
$21. Each share of Series A Junior Participating Preferred Stock would have
had a minimum preferential quarterly dividend of 100 times the dividend
declared on common stock, minimum liquidation preference of $100 per share and
other preferential common stock conversion features in connection with mergers
or other business combinations.
As of December 31, 1997, the Company had a warrant outstanding to
purchase 2,000,000 shares of the Company's common stock at $2.50 per share.
The warrant expires in September 2007.
TYLER CORPORATION FORM 10-K PAGE 52
<PAGE> 54
(15) Stock Option Plan
The Tyler Corporation Stock Option Plan provides for the granting of
non-qualified and incentive stock options, as defined by the Internal Revenue
Code, to key employees of the Company and its subsidiaries for up to 1,800,000
shares of the Company's common stock at prices which represent fair market
value at dates of grant. All options granted have ten year terms and generally
vest over, and become fully exercisable, at the end of, four to five years of
continued employment.
The following table summarizes the transactions of the Company's stock
option plan for the three-year period ended December 31, 1997:
<TABLE>
<CAPTION>
Number of Weighted-Average
Shares Exercise Prices
---------- ------------------
<S> <C> <C>
Options outstanding at January 1, 1995 .......................... 232,168 $ 2.95
Granted .................................................... 10,000 2.75
Canceled ................................................... (109,524) 4.05
Exercised .................................................. (12,770) 1.37
----------
Options outstanding at December 31, 1995 ........................ 119,874 2.10
Granted .................................................... 225,000 1.85
Canceled ................................................... (14,605) 3.23
----------
Options outstanding at December 31, 1996 ........................ 330,269 1.88
Granted ................................................... 1,516,666 2.36
Canceled .................................................. (952,530) 1.80
Exercised ................................................. (198,472) 1.87
----------
Options outstanding at December 31, 1997 ........................ 695,933 $ 3.04
==========
Reserved for future options at December 31, 1997 ................ 705,382
==========
Exercisable options
December 31, 1995 .......................................... 103,549 $ 1.81
December 31, 1996 .......................................... 150,702 $ 1.98
December 31, 1997 .......................................... 144,777 $ 2.71
</TABLE>
TYLER CORPORATION FORM 10-K PAGE 53
<PAGE> 55
The following table summarizes information concerning outstanding and
exercisable options at December 31, 1997:
<TABLE>
<CAPTION>
WEIGHTED
AVERAGE WEIGHTED WEIGHTED
REMAINING NUMBER OF AVERAGE PRICE NUMBER OF AVERAGE PRICE OF
RANGE OF EXERCISE CONTRACTUAL OUTSTANDING OF OUTSTANDING EXERCISABLE EXERCISABLE
PRICES LIFE OPTIONS OPTIONS OPTIONS OPTIONS
- ----------------- ----------- ------------ ------------- ----------- -----------------
<S> <C> <C> <C> <C> <C>
$1.50 - $2.125 5 years 288,333 $ 1.83 94,116 $ 2.13
$2.75 - $3.6875 10 years 352,000 $ 3.68 45,061 $ 3.66
$4.875 - $5.25 9.5 years 55,600 $ 5.21 5,600 $ 4.88
</TABLE>
Statement of Financial Accounting Standards No. 123, "Accounting for
Stock-Based Compensation" ("FAS 123"), became effective for the Company in
1996. As allowed by FAS 123, the Company has elected to continue to follow
Accounting Principles Board Opinion No. 25, "Accounting for Stock Issued to
Employees", which does not recognize compensation expense on the issuance of
its stock options because the option terms are fixed and the exercise price
equals the market price of the underlying stock on the grant date.
As required by FAS 123, the Company has determined the pro forma
information as if the Company had accounted for stock options granted since
January 1, 1995, under the fair value method of FAS 123. The Black-Scholes
option pricing model was used with the following weighted-average assumptions
for 1997, 1996 and 1995 respectively: risk-free interest rates of 6.49%, 6.32%
and 7.62%; dividend yield of 0%; expected common stock market price volatility
factor of .39, .37 and .32; and a weighted-average expected life of the options
of seven years. The weighted-average fair value of options granted in 1997,
1996 and 1995 was $1.24, $.94 and $1.40 per share, respectively.
Had compensation expense been recorded based on the fair values of the
stock option grants, the Company's 1997 pro forma income from continuing
operations would have been $751,000, or $.04 per share. The pro forma effect
of these options on net earnings and earnings per share in 1996 and 1995 was
not material. These proforma calculations only include the effects of 1995,
1996 and 1997 grants. Accordingly, the impacts are not necessarily indicative
of the effects on reported net income of future years.
TYLER CORPORATION FORM 10-K PAGE 54
<PAGE> 56
(16) Subsequent Events
In February 1998, the Company entered into a three year bank credit
agreement in an amount not to exceed $50,000,000, including a $5,000,000
sublimit for the issuance of standby and commercial letters of credit (the
"Senior Credit Facility"). The proceeds of the Senior Credit Facility are
intended to be used to fund acquisitions and meet short-term working capital
needs and capital expenditures which may arise from time to time. Borrowings
under the Senior Credit Facility bear interest at either the bank's prime rate
plus a margin of zero to .25% or the London Interbank Offered Rate plus a
margin of 1% to 2% depending on the Company's ratio of indebtedness to earnings
before interest, taxes, depreciation and amortization. The Senior Credit
Facility is secured by a pledge of the common stock of all present and future
operating subsidiaries and will be guaranteed by all such subsidiaries. Under
the terms of the Senior Credit Facility the Company is required to maintain
certain financial ratios and other financial conditions. The Senior Credit
Facility also prohibits the Company from incurring certain additional
indebtedness, limits certain investments, advances or loans and restricts
substantial asset sales, capital expenditures and cash dividends.
On February 19, 1998, the Company's shareholders authorized an
increase in the number of authorized shares of the Company's common stock from
50,000,000 to 100,000,000 shares.
On February 19, 1998, the Company acquired Resources, The Software
Group, Inc. ("TSG") and Interactive Computer Designs, Inc. ("INCODE") for
approximately 12,200,000 shares of Tyler common stock and approximately
$41,300,000 of cash and debt assumption. The Company financed the acquisitions
utilizing funds available under the Senior Credit Facility. Resources and TSG
are based in Dallas, Texas, and INCODE is located in Lubbock, Texas. All three
companies provide information management solutions to county and local
governments, principally located in the Southwestern United States.
TYLER CORPORATION FORM 10-K PAGE 55
<PAGE> 57
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Description
----------- ----------------------------------------------------------
<S> <C>
3.3 Amended and Restated By-Laws of Tyler Corporation, dated
November 4, 1997.
4.3 Credit agreement among Tyler Corporation and NationsBank
of Texas, N.A., dated February 13, 1998.
10.15 Employment agreement between the Company and C.A. Rundell,
Jr., dated October 8, 1997.
10.16 Employment agreement between the Company and Brian K.
Miller, dated December 1, 1997.
10.17 Employment agreement between the Company and Harold W.
Parkinson, dated January 6, 1997.
21 Subsidiaries of Tyler
23 Consent of Ernst & Young LLP
27 Financial Data Schedule
</TABLE>
<PAGE> 1
EXHIBIT 3.3
AMENDED
AND
RESTATED
BY-LAWS
OF
TYLER THREE, INC.
NOVEMBER 4, 1997
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
ARTICLE I
Offices
Section 1. Registered Office . . . . . . . . . . . . . . . 1
Section 2. Other Offices . . . . . . . . . . . . . . . . . 1
ARTICLE II
Meeting of Stockholders
Section 1. Time and Place of Meetings . . . . . . . . . . . 1
Section 2. Annual Meetings . . . . . . . . . . . . . . . . 1
Section 3. Notice of Annual Meetings . . . . . . . . . . . 1
Section 4. Special Meetings . . . . . . . . . . . . . . . . 1
Section 5. Notice of Special Meetings . . . . . . . . . . . 1
Section 6. Quorum . . . . . . . . . . . . . . . . . . . . . 1
Section 7. Order of Business . . . . . . . . . . . . . . . 2
Section 8. New Business . . . . . . . . . . . . . . . . . . 2
Section 9. Voting . . . . . . . . . . . . . . . . . . . . . 3
Section 10. List of Stockholders . . . . . . . . . . . . . . 3
Section 11. Inspectors of Votes . . . . . . . . . . . . . . 4
ARTICLE III
Board of Directors
Section 1. Powers . . . . . . . . . . . . . . . . . . . . . 4
Section 2. Number, Qualification and Term of Office . . . . 4
Section 3. Resignations . . . . . . . . . . . . . . . . . . 4
Section 4. Nominations . . . . . . . . . . . . . . . . . . 4
Section 5. Vacancies . . . . . . . . . . . . . . . . . . . 6
Meetings of the Board of Directors
Section 6. Time and Place of Meeting . . . . . . . . . . . 6
Section 7. Annual Meetings . . . . . . . . . . . . . . . . 6
Section 8. Regular Meetings-Notice . . . . . . . . . . . . 6
Section 9. Special Meetings-Notice . . . . . . . . . . . . 6
Section 10. Quorum and Manner of Acting . . . . . . . . . . 6
Section 11. Remuneration . . . . . . . . . . . . . . . . . . 7
Committees of Directors
Section 12. How Constituted and Powers. . . . . . . . . . . 7
Section 13. Minutes of Committees . . . . . . . . . . . . . 7
General
Section 14. Actions Without a Meeting . . . . . . . . . . . 7
Section 15. Presence at Meetings by Means of Communications
Equipment . . . . . . . . . . . . . . . . . . . 7
ARTICLE IV
Notices
Section 1. Type of Notice . . . . . . . . . . . . . . . . . 8
</TABLE>
<PAGE> 3
<TABLE>
<S> <C>
Section 2. Waiver of Notice . . . . . . . . . . . . . . . . 8
Section 3. Authorized Notices . . . . . . . . . . . . . . . 8
ARTICLE V
Officers
Section 1. Description . . . . . . . . . . . . . . . . . . 8
Section 2. Election . . . . . . . . . . . . . . . . . . . . 8
Section 3. Salaries . . . . . . . . . . . . . . . . . . . . 8
Section 4. Term . . . . . . . . . . . . . . . . . . . . . . 9
Section 5. Duties of the Chairman of the Board . . . . . . 9
Section 6. Duties of the President and Chief
Executive Officer . . . . . . . . . . . . . . . . 9
Section 7. Duties of Vice President-Finance . . . . . . . . 9
Section 8. Duties of Vice Presidents and Assistant Vice
Presidents . . . . . . . . . . . . . . . . . . . 9
Section 9. Duties of Secretary and Assistant Secretaries . 10
Section 10. Duties of Treasurer and Assistant Treasurers . . 10
Section 11. Duties of Controller and Assistant Controllers . 10
ARTICLE VI
Indemnification
Section 1. Damages and Expenses . . . . . . . . . . . . . . 11
Section 2. Prepaid Expenses . . . . . . . . . . . . . . . . 11
Section 3. Insurance . . . . . . . . . . . . . . . . . . . 11
Section 4. Mergers . . . . . . . . . . . . . . . . . . . . 11
ARTICLE VII
Certificates Representing Stock
Section 1. Right to Certificate . . . . . . . . . . . . . . 12
Section 2. Facsimile Signatures . . . . . . . . . . . . . . 12
Section 3. New Certificates . . . . . . . . . . . . . . . . 12
Section 4. Transfers . . . . . . . . . . . . . . . . . . . 12
Section 5. Record Date . . . . . . . . . . . . . . . . . . 13
Section 6. Registered Stockholders . . . . . . . . . . . . 13
ARTICLE VIII
General Provisions
Section 1. Dividends . . . . . . . . . . . . . . . . . . . 13
Section 2. Reserves . . . . . . . . . . . . . . . . . . . . 13
Section 3. Annual Statement . . . . . . . . . . . . . . . . 13
Section 4. Checks . . . . . . . . . . . . . . . . . . . . . 13
Section 5. Fiscal Year . . . . . . . . . . . . . . . . . . 13
Section 6. Corporate Seal . . . . . . . . . . . . . . . . . 13
Section 7. Certificate of Incorporation . . . . . . . . . . 13
ARTICLE IX
Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
</TABLE>
<PAGE> 4
ARTICLE I
OFFICES
SECTION 1. Registered Office. The registered office of the corporation
shall be in the City of Wilmington, County of New Castle, State of Delaware.
SECTION 2. Other Offices. The corporation may also have offices at
such other place or places, both within and without the State of Delaware, as
the board of directors may from time to time determine or the business of the
corporation may require.
ARTICLE II
Meeting of Stockholders
SECTION 1. Time and Place of Meetings. All meetings of the
stockholders shall be held at such time and place, either within or without the
State of Delaware, as the board of directors shall designate and as shall be
stated in the notice of the meeting.
SECTION 2. Annual Meetings. The annual meeting of the stockholders
shall be held on the fourth Wednesday of April of each year, if not a legal
holiday, and if a legal holiday, then the next secular day following, or at
such other date as the board of directors of the corporation may determine and
commencing at such time as the board of directors shall determine: at the
annual meeting, the stockholders shall elect by a plurality vote by written
ballot a board of directors and transact such other business as may properly be
brought before the meeting.
SECTION 3. Notice of Annual Meetings. Written notice of the annual
meeting, stating the place, date and hour of the meeting, shall be given to
each stockholder of record entitled to vote at such meeting not less than 10
nor more than 60 days before the date of the meeting.
SECTION 4. Special Meetings. Special meetings of the stockholders for
any purpose or purposes, unless otherwise prescribed by statute or by the
certificate of incorporation, may be called at any time by the chairman of the
board, or by order of the board of directors, and shall be called by the
chairman of the board, the chief executive officer or the secretary at the
request in writing of a majority of the board of directors. Such request shall
state the purpose or purposes of the proposed special meeting. Business
transacted at any special meeting of stockholders shall be limited to the
purposes stated in the notice.
SECTION 5. Notice of Special Meetings. Written notice of a special
meeting, stating the place, date and hour of the meeting and the purpose or
purposes for which the meeting is called, shall be given to each stockholder of
record entitled to vote at such meeting not less than 10 nor more than 60 days
before the date of the meeting.
SECTION 6. Quorum. The holders of stock having a majority of the
voting power of the stock entitled to be voted thereat, present in person or
represented by proxy, shall constitute a
AMENDED AND RESTATED BY-LAWS OF TYLER THREE, INC. PAGE 1
<PAGE> 5
quorum for the transaction of business at all meetings of the stockholders.
If, however, such quorum shall not be present or represented at any meeting of
the stockholders, the stockholders entitled to vote thereat, present in person
or represented by proxy, shall have power to adjourn the meeting from time to
time without notice (other than announcement at the meeting at which the
adjournment is taken of the time and place of the adjourned meeting) until a
quorum shall be present or represented. At such adjourned meeting at which a
quorum shall be present or represented, any business may be transacted that
might have been transacted at the meeting as originally notified. If the
adjournment is for more than 30 days, or if after the adjournment a new record
date is fixed for the adjourned meeting, notice of the adjourned meeting shall
be given to each stockholder of record entitled to vote at the meeting.
SECTION 7. Order of Business. The order of business at annual meetings
of stockholders and, so shall be determined by the chairman of the board.
SECTION 8. New Business. At an annual meeting of stockholders, only
such new business shall be conducted, and only such proposals shall be acted
upon, as shall have been properly brought before the annual meeting. For any
new business proposed by the board of directors to be properly brought before
the annual meeting such new business shall be approved by the board of
directors and shall be stated in writing and filed with the secretary of the
corporation at least five days before the date of the annual meeting, and all
business so approved, stated and filed shall be considered at the annual
meeting. Any stockholder may make any other proposal at the annual meeting,
but unless properly brought before the annual meeting such proposal shall not
be acted upon at the annual meeting. For a proposal to be properly brought
before an annual meeting by a stockholder, the stockholder must have given
proper and timely notice thereof in writing to the secretary of the corporation
as specified herein. To be timely, a stockholder's notice must be delivered to
or mailed and received at the principal executive offices of the corporation
not later than the date that corresponds to 120 days prior to the date the
corporation's proxy statement was released to stockholders in connection with
the previous year's annual meeting of stockholders. A stockholder's notice to
the secretary shall set forth as to each matter the stockholder proposes to
bring before the annual meeting (a) a description of the proposal desired to be
brought before the annual meeting and the reasons for conducting such business
at the annual meeting, (b) the name and address, as they appear on the
corporation's books, of the stockholder proposing such business and any other
stockholders known by such stockholder to be supporting such proposal, (c) the
class and number of shares of the stock that are held of record, beneficially
owned and represented by proxy on the date of such stockholder notice and on
the record date of the meeting (if such date shall have been made publicly
available) by the stockholder and by any other stockholders known by such
stockholder to be supporting such proposal on such dates, (d) any financial
interest of the stockholder in such proposal, and (e) all other information
that would be required to be filed with the Securities and Exchange Commission
if, with respect to any such item of business, such stockholder or stockholders
were a participant in a solicitation subject to Section 14 of the Securities
Exchange Act of 1934. as amended.
The board of directors may reject any stockholder proposal not made
strictly in accordance with the terms of this Section 8. Alternatively, if the
board of directors fails to consider the validity of any stockholder proposal,
the presiding officer of the annual meeting shall, if the facts warrant,
determine and declare at the annual meeting that the stockholder proposal was
not made in strict
AMENDED AND RESTATED BY-LAWS OF TYLER THREE, INC. PAGE 2
<PAGE> 6
accordance with the terms of this section and, if he should so determine, he
shall so declare at the annual meeting and any such business or proposal not
properly brought before the annual meeting shall not be acted upon at the
annual meeting. This provision shall not prevent the consideration and
approval or disapproval at the annual meeting of reports of officers, directors
and committees of the board of directors, but, in connection with such reports,
no new business shall be acted upon at such annual meeting unless stated, filed
and received as herein provided.
SECTION 9. Voting. Except as otherwise provided in the certificate of
incorporation, each stockholder shall, at each meeting of the stockholders, be
entitled to one vote in person or by proxy for each share of stock of the
corporation held by him and registered in his name on the books of the
corporation on the date fixed pursuant to the provisions of Section 5 of
Article VII of these by-laws as the record date for the determination of
stockholders who shall be entitled to notice of and to vote at such meeting.
Shares of its own stock belonging to the corporation or to another corporation,
if a majority of the shares entitled to vote in the election of directors of
such other corporation is held directly or indirectly by the corporation, shall
not be entitled to vote. Any vote by stock of the corporation may be given at
any meeting of stockholders by the stockholder entitled thereto, in person or
by his proxy appointed by an instrument in writing subscribed by such
stockholder or by his attorney thereunto duly authorized and delivered to the
secretary of the corporation or to the secretary of the meeting; provided,
however, that no proxy shall be voted or acted upon after three years from its
date, unless said proxy shall provide for a longer period. Each proxy shall be
revocable unless expressly provided therein to be irrevocable and unless
otherwise made irrevocable by law. At all meetings of the stockholders, all
matters, except where other provision is made by law, the certificate of
incorporation, or these by-laws, shall be decided by the vote of a majority of
the votes cast by the stockholders present in person or by proxy and entitled
to vote thereat, a quorum being present. Unless demanded by a stockholder of
the corporation present in person or by proxy at any meeting of the
stockholders and entitled to vote thereat, the chairman of the meeting shall
determine the method of voting at the meeting, except that the election or
removal of directors shall be by written ballot. Upon a demand of any such
stockholder for a vote by written ballot on any question or at the direction of
such chairman that a vote by written ballot be taken on any question, such vote
shall be taken by written ballot. On a vote by written ballot, each ballot
shall be signed by the stockholder voting, or by his proxy, if there be such
proxy, and shall state the number of shares voted.
SECTION 10. List of Stockholders. It shall be the duty of the
secretary or other officer of the corporation who shall have charge of its
stock ledger, either directly or through another officer of the corporation
designated by him or through a transfer agent appointed by the board of
directors, to prepare and make, at least ten days before every meeting of the
stockholders, a complete list of the stockholders entitled to vote thereat,
arranged in alphabetical order, and showing the address of each stockholder and
the number of shares registered in the name of each stockholder. Such list
shall be open to the examination of any stockholder, for any purpose germane to
the meeting, during ordinary business hours, for a period of at least ten days
before said meeting, either at a place within the city where said meeting is to
be held, which place shall be specified in the notice of said meeting, or, if
not so specified, at the place where said meeting is to be held. The list
shall also be produced and kept at the time and place of said meeting during
the whole time thereof, and may be inspected by any stockholder of record who
shall be present thereat. The stock ledger shall be the only
AMENDED AND RESTATED BY-LAWS OF TYLER THREE, INC. PAGE 3
<PAGE> 7
evidence as to who are the stockholders entitled to examine the stock ledger,
such list or the books of the corporation, or to vote in person or by proxy at
any meeting of stockholders.
SECTION 11. Inspectors of Votes. The chairman may appoint two
inspectors of votes to act at each meeting of the stockholders, unless the
board of directors shall have theretofore made such appointments. Each
inspector of votes shall first subscribe an oath or affirmation faithfully to
execute the duties of an inspector of votes at the meeting with strict
impartiality and according to the best of his ability. Such inspectors of
votes, if any, shall take charge of the ballots, if any, at the meeting, and
after the balloting on any question, shall count the ballots cast and shall
make a report in writing to the secretary of the meeting of the results of the
balloting. An inspector of votes need not be a stockholder of the corporation,
and any officer of the corporation may be an inspector of votes on any question
other than a vote for or against his election to any position with the
corporation or on any other question in which he may be directly interested.
ARTICLE III
Board of Directors
SECTION 1. Powers. The business and affairs of the corporation shall
be managed by its board of directors, which shall have and may exercise all
powers of the corporation and take all lawful acts as are not by statute, the
certificate of incorporation or these by-laws directed or required to be
exercised or taken by the stockholders.
SECTION 2. Number, Qualification and Term of Office. The number of
directors that shall constitute the whole board of directors shall be
determined, from time to time, only by resolution of the board of directors but
shall be no fewer than three (3) nor more than fifteen (15). Except as
provided in Section 5 of this Article III, the directors shall be elected at
the annual meeting of stockholders by written ballot, and each director shall
hold office until the next annual meeting after his election or until his
successor is duly elected and qualified, or until his death or retirement, or
until he resigns or is removed in the manner hereinafter provided.
SECTION 3. Resignations. Any director may resign at any time by giving
written notice of his resignation to the corporation, effective at the time
specified therein or, if not specified, immediately upon its receipt by the
corporation. Unless otherwise specified in the notice, acceptance of a
resignation shall not be necessary to make it effective.
SECTION 4. Nominations. If a person is to be elected to the board of
directors because of a vacancy existing on the board, nomination shall be made
only by the board of directors or of a nominating committee of the board of
directors (the board of directors as a whole or such committee of the board
being referred to herein as the "nominating committee") pursuant to the
affirmative vote of the majority of the entire membership of the nominating
committee. The nominating committee shall also make nominations for the
directors to be elected by the stockholders of the corporation at an annual
meeting of the stockholders as provided in this section.
Only persons nominated in accordance with the procedures set forth in
this Section 4 shall be eligible for election as directors at an annual
meeting. The nominating committee shall select the
AMENDED AND RESTATED BY-LAWS OF TYLER THREE, INC. PAGE 4
<PAGE> 8
management nominees for election as directors. Except in the case of a nominee
substituted as a result of the death, incapacity, disqualification or other
inability to serve as a management nominee. the nominating committee shall
deliver written nominations to the secretary at least 30 days prior to the date
of the annual meeting. Management nominees substituted as a result of the
death, incapacity, disqualification or other inability to serve as a management
nominee shall be delivered to the secretary as promptly as practicable.
Provided the nominating committee selects the management nominees, no nominees
for directors except those made by the nominating committee shall be voted upon
at the annual meeting unless other nominations by stockholders are made in
accordance with the provisions of this Section 4. Ballots bearing the names of
all the persons nominated for election as directors at an annual meeting in
accordance with the procedures set forth in this Section 4 by the nominating
committee and by stockholders shall be provided for use at the annual meeting.
However, except in the case of a management nominee substituted as a result of
the death, incapacity, disqualification or other inability to serve as a
management nominee, if the nominating committee shall fail or refuse to
nominate a slate of directors at least 30 days prior to the date of the annual
meeting, nominations for directors may be made at the annual meeting by any
stockholder entitled to vote and shall be voted upon. No person shall be
elected as a director of the corporation unless nominated in accordance with
the terms set forth in this Section 4.
Nominations of individuals for election to the board of directors of the
corporation at an annual meeting of stockholders may be made by any stockholder
of the corporation entitled to vote for the election of directors at that
meeting who complies with the procedures set forth in this Section 4. To be
timely, a stockholder's notice shall be delivered to, or mailed and received
at, the principal executive offices of the corporation not less than 75 days
prior to the date of the annual meeting of stockholders nor more than 85 days
prior to the date of such annual meeting; provided, however, that if less than
75 days' notice or prior public disclosure of the date of the annual meeting is
given or made, notice by the stockholder to be timely must be so delivered or
received not later than the close of business on the 10th day following the
earlier of (a) the day on which such notice of the date of the annual meetings
was mailed or (b) the day on which such public disclosure was made. Such
stockholder's notice shall set forth (i) as to each person whom the stockholder
proposes to nominate for election or re-election as a director (A) the name,
age, business address and residence address of such person, (B) the principal
occupation or employment of such person, (C) the classes and number of shares
of capital stock of the corporation that are owned of record and beneficially
owned by such person on the date of such stockholder notice and (D) any other
information relating to such person that is required to be disclosed in
solicitations of proxies with respect to nominees for election as directors
pursuant to Section 14 under the Securities Exchange Act of 1934, as amended;
and (ii) as to the stockholder giving the notice (A) the name and address, as
they appear on the corporation's books, of such stockholder and any other
stockholders known by such stockholder to be supporting such nominees, and (B)
the classes and number of shares of capital stock of the corporation that are
owned of record and beneficially owned by such stockholder on the date of such
stockholder notice and by any other stockholders known by such stockholder to
be supporting such nominees on the date of such stockholder notice.
The board of directors may reject any nomination by a stockholder not
made in strict accordance with the terms of this Section 4. Alternatively, if
the board of directors fails to consider the validity of any nominations by a
stockholder, the presiding officer of the annual meeting shall, if the facts
warrant, determine and declare at the annual meeting that a nomination was not
made in
AMENDED AND RESTATED BY-LAWS OF TYLER THREE, INC. PAGE 5
<PAGE> 9
strict accordance with the terms of this Section 4, and, if he should so
determine, he shall so declare at the annual meeting and the defective
nomination shall be disregarded.
SECTION 5. Vacancies. Vacancies and newly created directorships
resulting from any increase in the authorized number of directors may be filled
only (a) by a majority of the directors then in office though less than a
quorum, or by a sole remaining director, or (b) by the vote of the stockholders
at an annual meeting of stockholders. Directors so chosen shall hold office
until the annual meeting next after their election or until their successors
are elected and qualified, unless sooner displaced. If there are no directors
in office, then an election of directors may be held in the manner provided by
statute.
MEETINGS OF THE BOARD OF DIRECTORS
SECTION 6. Time and Place of Meeting. The board of directors of the
corporation may hold meetings, both regular and special, at such time and
places as it determines.
SECTION 7. Annual Meetings. The first meeting of each newly elected
board of directors shall be held immediately following the annual meeting of
stockholders, and no notice of such meeting to the newly elected directors
shall be necessary in order legally to constitute the meeting, provided a
quorum shall be present. If such meeting is not held immediately following the
annual meeting of stockholders, the meeting may be held at such time and place
as shall be specified in a notice given as hereinafter provided for special
meetings of the board of directors, or as shall be specified in a written
waiver signed by all of the directors.
SECTION 8. Regular Meetings-Notice. Regular meetings of the board of
directors may be held without notice.
SECTION 9. Special Meetings-Notice. Special meetings of the board of
directors may be called by the chairman of the board, or one-third of the
directors, on 15 hours' notice to each director, either personally or by
telephone or by mail, telegraph, telex, cable, wireless or other form of
recorded communication; special meetings shall be called by he secretary in
like manner and on like notice on the written request of the chairman of the
board, or one-third of the directors. Notice of any such meeting need not be
given to any director, however, if waived by him in writing or by telegraph,
telex, cable, wireless or other form of recorded communication, or if he shall
be present at the meeting.
SECTION 10. Quorum and Manner of Acting. At all meetings of the board
of directors, fifty percent (50%) of the directors at the time in office (but
not less than one-third of the whole board of directors) shall constitute a
quorum for the transaction of business, and the act of a majority of the
directors present at any meeting at which a quorum is present shall be the act
of the board of directors, except as may be otherwise specifically provided by
statute or by the certificate of incorporation. If a quorum shall not be
present at any meeting of the board of directors, the directors present may
adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present.
AMENDED AND RESTATED BY-LAWS OF TYLER THREE, INC. PAGE 6
<PAGE> 10
SECTION 11. Remuneration. Unless otherwise expressly provided by
resolution adopted by the board of directors, none of the directors shall, as
such, receive any stated remuneration for his services; but the board of
directors may at any time and from time to time by resolution provide that a
specified sum shall be paid to any director of the corporation, either as his
annual remuneration as such director or member of any committee of the board of
directors or as remuneration for his attendance at each meeting of the board of
directors or any such committee. The board of directors may also likewise
provide that the corporation shall reimburse each director for any expenses
paid by him on account of his attendance at any meeting. Nothing in this
section shall be construed to preclude any director from serving the
corporation in any other capacity and receiving remuneration therefor.
COMMITTEES OF DIRECTORS
SECTION 12. Committees-How Constituted and Powers. The Board of
directors may, by resolution passed by a majority of the whole board designate
one or more committees, each committee to consist of one or more of the
directors of the corporation. The board may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of the committee. Any committee. to the extent provided
in the resolution of the board of directors and not prohibited by law, shall
have and may exercise all the powers and authority of the board of directors in
the management of the business and affairs of the corporation, and may
authorize the seal of the corporation to be affixed to all papers that may
require it. At any meeting of a committee, a majority of the members of the
committee shall constitute a quorum for the transaction of business, and the
act of a majority of the members present at any meeting at which a quorum is
present shall be the act of the committee.
SECTION 13. Minutes of Committees. Each committee shall keep regular
minutes of its meetings and proceedings and report the same to the board of
directors at the next meeting thereof.
GENERAL
SECTION 14. Actions Without a Meeting. Any action required or
permitted to be taken at any meeting of the board of directors or of any
committee thereof may be taken without a meeting, if all members of the board
of directors or committee, as the case may be, consent thereto in writing and
the writing or writings are filed with the minutes of proceedings of the board
of directors or the committee.
SECTION 15. Presence at Meetings by Means of Communications Equipment.
Members of the board of directors, or of any committee designated by the board
of directors, may participate in a meeting of the board of directors or
committee by means of conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear one
another. Participation in a meeting conducted pursuant to this section shall
constitute presence in person at the meeting.
AMENDED AND RESTATED BY-LAWS OF TYLER THREE, INC. PAGE 7
<PAGE> 11
ARTICLE IV
Notices
SECTION 1. Type of Notice. Whenever, under the provisions of any
applicable statute, the certificate of incorporation, or these by-laws, notice
is required to be given to any director or stockholder, the requirement shall
not be construed to mean personal notice, but such notice may be given in
writing, in person or by mail, addressed to such director or stockholder at his
address as it appears on the records of the corporation, with postage thereon
prepaid, and such notice shall be deemed to be given at the time when it shall
be deposited in the United States mail. Notice to directors may also be given
in any manner permitted by Article III hereof and shall be deemed to be given
at the time when first transmitted by the method of communication so permitted.
SECTION 2. Waiver of Notice. Whenever any notice is required to be
given under the provisions of any applicable statute, the certificate of
incorporation or these by-laws, a waiver thereof in writing, signed by the
person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto, and transmission of a
waiver of notice by a director or stockholder by mail, telegraph, telex. cable,
wireless or other form of recorded communication may constitute such a waiver.
SECTION 3. Authorized Notices. Unless otherwise specified herein, the
secretary or such other person or persons as the chief executive officer
designates shall be authorized to give notices for the corporation.
ARTICLE V
Officers
SECTION 1. Description. The elected officers of the corporation shall
be a president (who shall be a director), one or more vice presidents, with or
without such descriptive titles as the board of directors shall deem
appropriate. a secretary, a treasurer, and a controller. The board of
directors by resolution shall also appoint one or more assistant secretaries,
assistant treasurers, assistant controllers and such other officers and agents
as from time to time may appear to be necessary or advisable in the conduct of
the affairs of the corporation. Any two or more offices may be held by the
same person.
SECTION 2. Election. The board of directors at its first meeting after
each annual meeting of stockholders shall elect and appoint the officers to
fill the positions designated in Section 1 of this Article V.
SECTION 3. Salaries. The board of directors shall fix all salaries of
all elected officers of the corporation.
AMENDED AND RESTATED BY-LAWS OF TYLER THREE, INC. PAGE 8
<PAGE> 12
SECTION 4. Term. An officer of the corporation shall hold office until
he resigns or his successor is chosen and qualified. Any officer elected or
appointed by the board of directors may be removed at any time by the
affirmative vote of a majority of the whole board of directors. The board of
directors shall fill any vacancy occurring in any office of the corporation by
death, resignation. removal or otherwise.
SECTION 5. Duties of the Chairman of the Board. The chairman of the
board shall preside, when present, at all meetings of stockholders, except as
may otherwise be provided by statue or the board of directors. He shall also
preside, when present, at all meetings of the board of directors. He shall
advise and counsel the president and officers of the corporation, and shall
exercise such powers and perform such duties that shall be assigned to or
required of him from time to time by the board of directors. The chairman
shall not be an officer or employee of the corporation.
SECTION 6. Duties of the President and Chief Executive Officer. The
president shall be the chief executive officer of the corporation, and, subject
to the provisions of these by-laws, shall have general supervision of the
affairs of the corporation and shall have general and active control of all its
business. He shall have general authority to execute bonds, deeds and
contracts in the name of the corporation and to affix the corporate seal
thereto; to sign stock certificates; to cause the employment or appointment of
such employees and agents of the corporation as the proper conduct of
operations may require, and to fix their compensation, subject to the
provisions of these by-laws; to remove or to suspend any employee or agent who
shall have been employed or appointed under his authority or under authority of
an officer subordinate to him; to suspend for cause, pending final action by
the authority that shall have elected or appointed him, any officer subordinate
to the president, and, in general, to exercise all the powers usually
appertaining to the office of president of a corporation, except as otherwise
provided in these by-laws. In the absence of the president, his duties shall
be performed and his powers may be exercised by such other officer as he shall
designate in writing or (failing such designation) by the executive committee
(if any has been appointed) or such officer as it shall designate in writing,
subject, in either case, to review and superseding action by the board of
directors.
SECTION 7. Duties of Vice President-Finance. There may be designated a
vice president-finance, who, if so designated, shall be the chief financial
and accounting officer of the corporation. He shall have active control of and
responsibility for all matters pertaining to the financial affairs of the
corporation and its subsidiaries. His authority shall include the authorities
of the treasurer and controller. He shall be responsible for approval of all
filings with governmental agencies. He shall have the authority to execute and
deliver bonds, deeds, contracts and stock certificates of and for the
corporation, and to affix the corporate seal thereto by handwritten or
facsimile signature and all other powers customarily appertaining to his
office, except to the extent otherwise limited or enlarged. He shall report to
the president and to the executive committee and the board of directors of the
corporation at their request on all financial matters of the corporation.
SECTION 8. Duties of Vice Presidents and Assistant Vice Presidents. In
the absence of the president or in the event of his inability or refusal to
act, the vice president (or in the event there be more than one vice president,
the vice presidents in the order designated by the board, or in the absence of
any designation, in the order of their election) shall perform the duties of
the president and, when so acting, shall have all the powers of and be subject
to all the restrictions upon the
AMENDED AND RESTATED BY-LAWS OF TYLER THREE, INC. PAGE 9
<PAGE> 13
president. The vice presidents shall perform such other duties and have such
other powers as the board of directors or the president may from time to time
prescribe.
SECTION 9. Duties of Secretary and Assistant Secretaries. The
secretary or an assistant secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all proceedings of
the meetings of the stockholders of the corporation and of the board of
directors in a book to be kept for that purpose, and shall perform like duties
for the standing committees when required. The secretary shall be under the
supervision of the president and shall perform such other duties as may be
prescribed by the president. The secretary shall have charge of the seal of
the corporation and have authority to affix the seal to any instrument
requiring it. When so affixed, the seal shall be attested by the signature of
the secretary or treasurer or an assistant secretary or assistant treasurer,
which may be a facsimile. The secretary shall keep and account for all books,
documents, papers and records of the corporation except those for which some
other officer or agent is properly accountable. The secretary shall have
authority to sign stock certificates, and shall generally perform all the
duties usually appertaining to the office of the secretary of a corporation.
Assistant secretaries in the order of their seniority, unless otherwise
determined by the board of directors, shall assist the secretary, and in the
absence or disability of the secretary, perform the duties and exercise the
powers of the secretary. They shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
SECTION 10. Duties of Treasurer and Assistant Treasurers. The
treasurer shall have the responsibility for and custody over all assets of the
corporation, and the responsibility for handling of the liabilities of the
corporation. He shall cause proper entries of all receipts and disbursements
of the corporation to be recorded in its books of account. He shall have the
responsibility for all matters pertaining to taxation and insurance. He shall
have the authority to endorse for deposit or collection, or otherwise, all
commercial paper payable to the corporation, and to give proper receipts or
discharges for all payments to the corporation. He shall be responsible for
all terms of credit granted by the corporation and for the collection of all
its accounts. He shall have the authority to execute and deliver bonds, deeds,
contracts and stock certificates of and for the corporation, and to affix the
corporate seal thereto by handwritten or facsimile signature and all other
powers customarily appertaining to his office, except to the extent otherwise
limited or enlarged. The treasurer shall be under the supervision of the vice
president-finance and he shall perform such other duties as may be prescribed
to him by the vice president-finance, if one be designated.
Assistant treasurers, in the order of their seniority, shall assist the
treasurer, and in the absence or disability of the treasurer, perform the
duties and exercise the powers of the treasurer.
SECTION 11. Duties of Controller and Assistant Controllers. The
controller shall be responsible for all matters pertaining to the accounts of
the corporation, its subsidiaries and divisions, with the supervision of the
books of account, their installation, arrangement and classification. The
controller shall maintain adequate records of all assets, liabilities and
transactions; see that an adequate system of internal audit thereof is
currently and regularly maintained; coordinate the efforts of the corporation's
independent public accountants in its external audit program; receive, review
and consolidate all operating and financial statements of the
AMENDED AND RESTATED BY-LAWS OF TYLER THREE, INC. PAGE 10
<PAGE> 14
corporation and its various departments and subsidiaries; and prepare financial
statements, reports and analyses. The controller shall have supervision of the
accounting practices of the corporation and of each subsidiary and division of
the corporation, and shall prescribe the duties and powers of the chief
accounting personnel of the subsidiaries and divisions. The controller shall
cause to be maintained an adequate system of financial control through a
program of budgets, financial planning and interpretive reports. The
controller shall initiate and enforce accounting measures and procedures
whereby the business of the corporation and its subsidiaries and divisions
shall be conducted with the maximum efficiency and economy. The controller
shall have all other powers customarily appertaining to the office of
controller, except to the extent otherwise limited or enlarged. The controller
shall be under the supervision of the vice president-finance, if one be
designated.
The assistant controllers, in the order of their seniority, shall assist
the controller, and if the controller is unavailable, perform the duties and
exercise the powers of the controller.
ARTICLE VI
Indemnification
SECTION 1. Damages and Expenses. To the full extent permitted by law,
the corporation shall indemnify and pay the expenses of any party who is or was
made, or threatened to be made, a party to an action or proceeding (whether
civil, criminal, administrative or investigative) by reason of the fact that he
is or was a director, officer or employee of the corporation or served any
other corporation trust or enterprise in any capacity at the request of the
corporation.
SECTION 2. Prepaid Expenses. Expenses incurred in defending a civil or
criminal action. suit or proceeding may be paid by the corporation in advance
of the final disposition of such action, suit or proceeding, as authorized by
the board of directors in the specific case.
SECTION 3. Insurance. The corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or arising out
of his status as such, whether or not the corporation would have the power to
indemnify him against such liability under the provisions of this Article VI.
SECTION 4. Mergers. For purposes of this Article VI, references to
"the corporation" shall include, in addition to the resulting or surviving
corporation, constituent corporations (including any constituent of a
constituent) absorbed in a consolidation or merger that, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, employees or agents, so that any person who is or was a
director, officer, employee or agent of such constituent corporation or is or
was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise shall stand in the same position under the provisions
of this Article VI with respect to the resulting or
AMENDED AND RESTATED BY-LAWS OF TYLER THREE, INC. PAGE 11
<PAGE> 15
surviving corporation as he would have with respect to such constituent
corporation if its separate existence had continued.
ARTICLE VII
Certificates Representing Stock
SECTION 1. Right to Certificate. Every holder of stock in the
corporation shall be entitled to have a certificate, signed by, or in the name
of the corporation by, the chairman of the board, the president or a vice
president and by the secretary or an assistant secretary of the corporation,
certifying the number of shares owned by him in the corporation. If the
corporation shall be authorized to issue more than one class of stock or more
than one series of any class, the powers. designations. preferences and
relative, participating, option or other special rights of each class of stock
or series thereof and the qualifications, limitations or restrictions of such
preferences or rights shall be set forth in full or summarized on the face or
back of the certificate that the corporation shall issue to represent such
class or series of stock; provided, that, except as otherwise provided in
Section 202 of the General Corporation Law of the State of Delaware, in lieu of
the foregoing requirements, there may be set forth on the face or back of the
certificate that the corporation shall issue to represent such class or series
of stock a statement that the corporation will furnish without charge to each
stockholder who so requests the powers, designations. preferences and relative.
participating, optional or other special rights of each class of stock or
series thereof and the qualifications. limitations or restrictions of such
preferences or rights.
SECTION 2. Facsimile Signatures. Any or all of the signatures on the
certificate may be facsimile. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the corporation with the same effect
as if he were such officer. transfer agent or registrar at the date of issue.
SECTION 3. New Certificates. The board of directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the corporation and alleged to have been
lost, stolen or destroyed, upon the making of an affidavit of that fact by the
person claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the board of
directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or his legal representative, to advertise the same in such manner
as it shall require or to give the corporation a bond in such sum as it may
direct as indemnity against any claim that may be made against the corporation
with respect to the certificate alleged to have been lost, stolen or destroyed
or the issuance of such new certificate.
SECTION 4. Transfers. Upon surrender to the corporation or the
transfer agent of the corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignation or authority to
transfer, it shall be the duty of the corporation, subject to any proper
restrictions on transfer, to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
AMENDED AND RESTATED BY-LAWS OF TYLER THREE, INC. PAGE 12
<PAGE> 16
SECTION 5. Record Date. The board of directors may fix, in advance, a
record date for stockholders' meetings or for any other lawful purpose, which
shall be no fewer than 10 nor more than 60 days before the date of the meeting
or other action. A determination of stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the board of directors may fix a new
record date for the adjourned meeting.
SECTION 6. Registered Stockholders. The corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares to receive dividends and to vote as such owner, and shall not
be bound to recognize any equitable or other claim to or interest in such share
or shares on the part of any other person, whether or not provided by the laws
of the State of Delaware.
ARTICLE VIII
General Provisions
SECTION 1. Dividends. Dividends upon the capital stock of the
corporation, if any, may be declared by the board of directors pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock
or other securities.
SECTION 2. Reserves. Before payment of any dividend, there may be set
aside out of any funds of the corporation available for dividends such sum or
sums as the board of directors from time to time, in their absolute discretion,
thinks proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the corporation, or
for such other purpose as the board of directors shall think conducive to the
interest of the corporation, and the board of directors may modify or abolish
any such reserve in the manner in which it was created.
SECTION 3. Annual Statement. The board of directors shall present at
each annual meeting, and at any special meeting of the stockholders when called
for by vote of the stockholders, a full and clear statement of the business and
condition of the corporation.
SECTION 4. Checks. All checks or demands for money and promissory
notes of the corporation shall be signed by such officer or officers or such
other person or persons as the board of directors may from time to time
prescribe.
SECTION 5. Fiscal Year. The fiscal year of the corporation shall be
determined by the board of directors.
SECTION 6. Corporate Seal. The corporate seal shall have inscribed
thereon the name of the corporation, the year of its organization, and the word
"Delaware." The seal may be used by causing it or a facsimile thereof to be
impressed. affixed, reproduced or otherwise.
SECTION 7. Certificate of Incorporation. These by-laws are subject to
the terms of the certificate of incorporation of the corporation.
AMENDED AND RESTATED BY-LAWS OF TYLER THREE, INC. PAGE 13
<PAGE> 17
ARTICLE IX
Amendments
The by-laws may be altered, amended or repealed or new by-laws adopted
only in accordance with the Restated Certificate of Incorporation of the
corporation and any other requirements specified in these by-laws.
AMENDED AND RESTATED BY-LAWS OF TYLER THREE, INC. PAGE 14
<PAGE> 1
EXHIBIT 4.3
[Bracewell & Patterson Draft 2/12/98]
CREDIT AGREEMENT
Among
TYLER CORPORATION
as Borrower,
THE FINANCIAL INSTITUTIONS
NAMED IN THIS CREDIT AGREEMENT
as Banks,
and
NATIONSBANK OF TEXAS, N.A.,
as Agent for the Banks
$50,000,000
February 13, 1998
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
ARTICLE 1. DEFINITIONS AND ACCOUNTING TERMS . . . . . . . . . . . . . . . 1
1.1 Certain Defined Terms . . . . . . . . . . . . . . . . . . . . 1
1.2 Computation of Time Periods . . . . . . . . . . . . . . . . . 16
1.3 Accounting Terms; Preparation of Financials . . . . . . . . . 16
1.4 Types . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
1.5 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE 2. CREDIT FACILITIES . . . . . . . . . . . . . . . . . . . . . . 18
2.1 Revolving Loan Facility . . . . . . . . . . . . . . . . . . . 18
2.2 Letter of Credit Facility . . . . . . . . . . . . . . . . . . 20
2.3 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
2.4 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
2.5 Breakage Costs . . . . . . . . . . . . . . . . . . . . . . . . 27
2.6 Increased Costs . . . . . . . . . . . . . . . . . . . . . . . 28
2.7 Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . 29
2.8 Market Failure . . . . . . . . . . . . . . . . . . . . . . . . 29
2.9 Payment Procedures and Computations . . . . . . . . . . . . . 29
2.10 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
2.11 Replacement of Bank in Event of Adverse Condition . . . . . . 33
ARTICLE 3. CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . 33
3.1 Conditions Precedent to Initial Extensions of Credit . . . . . 33
3.2 Conditions Precedent to Each Extension of Credit . . . . . . . 35
ARTICLE 4. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . 35
4.1 Organization . . . . . . . . . . . . . . . . . . . . . . . . . 36
4.2 Authorization . . . . . . . . . . . . . . . . . . . . . . . . 36
4.3 Enforceability . . . . . . . . . . . . . . . . . . . . . . . . 36
4.4 Absence of Conflicts and Approvals . . . . . . . . . . . . . . 36
4.5 Investment Companies . . . . . . . . . . . . . . . . . . . . . 36
4.6 Public Utilities . . . . . . . . . . . . . . . . . . . . . . . 36
4.7 Financial Condition . . . . . . . . . . . . . . . . . . . . . 37
4.8 Condition of Assets . . . . . . . . . . . . . . . . . . . . . 37
4.9 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . 37
4.10 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . 38
4.11 Laws and Regulations . . . . . . . . . . . . . . . . . . . . . 38
4.12 Environmental Compliance . . . . . . . . . . . . . . . . . . . 38
4.13 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
4.14 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
4.15 True and Complete Disclosure . . . . . . . . . . . . . . . . . 39
</TABLE>
<PAGE> 3
<TABLE>
<S> <C> <C>
ARTICLE 5. COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . 39
5.1 Organization . . . . . . . . . . . . . . . . . . . . . . . . . 39
5.2 Reporting . . . . . . . . . . . . . . . . . . . . . . . . . . 40
5.3 Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . 42
5.4 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . 42
5.5 Financial Covenants . . . . . . . . . . . . . . . . . . . . . 42
5.6 Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
5.7 Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
5.8 Other Obligations . . . . . . . . . . . . . . . . . . . . . . 44
5.9 Corporate Transactions . . . . . . . . . . . . . . . . . . . . 44
5.10 Distributions . . . . . . . . . . . . . . . . . . . . . . . . 46
5.11 Transactions with Affiliates . . . . . . . . . . . . . . . . . 46
5.12 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . 46
5.13 Investments. . . . . . . . . . . . . . . . . . . . . . . . . . 47
5.14 Lines of Business . . . . . . . . . . . . . . . . . . . . . . 47
5.15 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . 47
5.16 Environmental Compliance . . . . . . . . . . . . . . . . . . . 47
5.17 ERISA Compliance . . . . . . . . . . . . . . . . . . . . . . . 48
5.18 Payment of Certain Claims . . . . . . . . . . . . . . . . . . 48
5.19 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . 48
ARTICLE 6. DEFAULT AND REMEDIES . . . . . . . . . . . . . . . . . . . . . 49
6.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . 49
6.2 Termination of Revolving Loan Commitments . . . . . . . . . . 51
6.3 Acceleration of Credit Obligations . . . . . . . . . . . . . . 51
6.4 Cash Collateralization of Letters of Credit . . . . . . . . . 51
6.5 Default Interest . . . . . . . . . . . . . . . . . . . . . . . 52
6.6 Right of Setoff . . . . . . . . . . . . . . . . . . . . . . . 52
6.7 Actions Under Credit Documents . . . . . . . . . . . . . . . . 52
6.8 Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . 52
6.9 Application of Payments . . . . . . . . . . . . . . . . . . . 52
ARTICLE 7. THE AGENT AND THE ISSUING BANK . . . . . . . . . . . . . . . . . 53
7.1 Authorization and Action . . . . . . . . . . . . . . . . . . . 53
7.2 Reliance, Etc. . . . . . . . . . . . . . . . . . . . . . . . . 54
7.3 Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . 54
7.4 Bank Credit Decision . . . . . . . . . . . . . . . . . . . . . 54
7.5 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
7.6 Indemnification . . . . . . . . . . . . . . . . . . . . . . . 55
7.7 Successor Agent and Issuing Bank . . . . . . . . . . . . . . . 55
</TABLE>
-ii-
<PAGE> 4
<TABLE>
<S> <C> <C>
ARTICLE 8. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . 56
8.1 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
8.2 Indemnification . . . . . . . . . . . . . . . . . . . . . . . 56
8.3 Modifications, Waivers, and Consents . . . . . . . . . . . . . 57
8.4 Survival of Agreements . . . . . . . . . . . . . . . . . . . . 57
8.5 Assignment and Participation . . . . . . . . . . . . . . . . . 57
8.6 Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
8.7 Choice of Law . . . . . . . . . . . . . . . . . . . . . . . . 60
8.8 Forum Selection . . . . . . . . . . . . . . . . . . . . . . . 60
8.9 Service of Process . . . . . . . . . . . . . . . . . . . . . . 61
8.10 Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . 61
8.11 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . 61
8.12 No Further Agreements . . . . . . . . . . . . . . . . . . . . 62
</TABLE>
EXHIBITS
Exhibit A - Form of Compliance Certificate
Exhibit B - Form of Revolving Loan Borrowing Request
Exhibit C - Form of Continuation/Conversion Request
Exhibit D - Form of Revolving Loan Note
Exhibit E - Form of Assignment and Acceptance
Exhibit F - Closing Documents List
Exhibit G - Form of Joinder Agreement
Exhibit H - Form of Acquisition EBITDA Certificate
SCHEDULES
Schedule I - Administrative Information (Borrower; Agent; Banks)
Schedule II - Disclosures (Existing Subsidiaries, Investments,
Debt, Liens and Litigation)
Schedule III - Certain Excluded Charges
-iii-
<PAGE> 5
CREDIT AGREEMENT
This Credit Agreement dated as of February 13, 1998, is among Tyler
Corporation, a Delaware corporation, as Borrower, the financial institutions
named herein, as Banks, and NationsBank of Texas, N.A., as Agent for the Banks.
The parties hereto agree as follows:
ARTICLE 1. DEFINITIONS AND ACCOUNTING TERMS.
1.1 Certain Defined Terms. As used in this Agreement, the following
terms shall have the following meanings (unless otherwise indicated, such
meanings to be equally applicable to both the singular and plural forms of the
terms defined):
"Acquisition" means the direct or indirect purchase or acquisition,
whether in one or more related transactions, of any Person or group of Persons
or any related group of assets, liabilities, or securities of any Person or
group of Persons (excluding purchases of inventory and equipment in the
ordinary course of business).
"Acquisition EBITDA Certificate" means a certificate executed by a
Responsible Officer of the Borrower in substantially the form of Exhibit H,
certifying a proforma schedule reflecting the addition of the consolidated
EBITDA of Acquisitions for a period to the consolidated EBITDA of the Borrower
for such period as if such Acquisitions had occurred prior to the beginning of
the such period, prepared in accordance with the requirements of Section 1.3(c)
for proforma historical financial information.
"Adjusted Base Rate" means, for any day, the fluctuating rate per annum
of interest equal to the greater of (a) the Prime Rate in effect on such day or
(b) the Federal Funds Rate in effect on such day plus 0.50%.
"Affiliate" means, as to any Person, any other Person that, directly or
indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with, such Person or any Subsidiary of such Person.
The term "control" (including the terms "controlled by" or "under common
control with") means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a Person,
whether through ownership, by contract, or otherwise.
"Agent" means NationsBank in its capacity as an agent pursuant to
Article 7 and any successor agent pursuant to Section 7.7.
"Agent Fee Letter" means the confidential letter agreement dated as of
February 13, 1998 between the Borrower and the Agent regarding certain fees
owed by the Borrower to the Agent in connection with this Agreement.
<PAGE> 6
"Agreement" means this Credit Agreement.
"Applicable Margin" means, with respect to interest rates, unused
commitment fees, and letter of credit fees and as of any date of its
determination, an amount equal to the percentage amount set forth in the table
below opposite the applicable ratio of (a) the consolidated Debt of the
Borrower as of the end of the fiscal quarter then most recently ended to (b)
the consolidated EBITDA of the Borrower for the four fiscal quarters then most
recently ended (determined as provided below, including adjustments to reflect
Acquisitions as provided below):
<TABLE>
<CAPTION>
Funded Debt Applicable Margin Applicable Margin
to EBITDA LIBOR Tranches and Base Rate Tranches
--------- Letter of Credit Fee ------------------
--------------------
<S> <C> <C>
<0.75 1.00% 0.00%
>0.75 but <1.25 1.25% 0.00%
-
>1.25 but <1.75 1.50% 0.00%
-
>1.75 2.00% 0.25%
-
</TABLE>
<TABLE>
<CAPTION>
Funded Debt Applicable Margin
to EBITDA Commitment Fee
--------- -----------------
<S> <C>
<0.75 0.250%
>0.75 but <1.25 0.250%
-
>1.25 but <1.75 0.375%
-
>1.75 0.500%
-
</TABLE>
Until delivery of the first Compliance Certificate, the foregoing ratio shall
be deemed to be 1.26 to 1.00. Thereafter, the Agent shall periodically
redetermine the ratio and resulting Applicable Margin based upon the most
recent Compliance Certificate delivered to the Agent pursuant to Section 5.2(a)
or Section 5.2(b). Notwithstanding such redetermination of the ratio, until
the date when the Applicable Margin is reset based upon the Compliance
Certificate (and if applicable, the Acquisition EBITDA Certificate as described
below) for the period ending June 30, 1998, the ratio shall be deemed to be the
greater of (a) the ratio as determined or (b) 1.26 to 1.00, and the Applicable
Margin shall be set accordingly.
Any adjustments to the Applicable Margin resulting from redetermining the
ratio shall become effective on the 45th day following the last day of each
fiscal quarter or on the 90th day following the last day of each fiscal year as
applicable; provided, however, that if any such Compliance Certificate is not
delivered when required hereunder, the Applicable Margin shall be deemed to be
the maximum percentage amount in each table from such 45th or 90th day until
such Compliance Certificate is received by the Agent.
If any Compliance Certificate presented by the Borrower does not fully reflect
the EBITDA effects of any Acquisition that has occurred prior to the end of the
applicable period covered by such Compliance Certificate, and if the addition
of the EBITDA of such Acquisition was
-2-
<PAGE> 7
expressly approved in writing by the Majority Banks for use in determining the
ratio and resulting Applicable Margin, then the Borrower may supplement such
Compliance Certificate with an Acquisition EBITDA Certificate provided to the
Agent with such Compliance Certificate, and the Agent shall determine the ratio
and resulting Applicable Margin using the proforma historical EBITDA of the
Borrower and the Acquisition set forth in the Acquisition EBITDA Certificate.
In the event there shall occur any Acquisition requiring reporting under
Section 5.2(c) since the date the ratio and resulting Applicable Margin was
last redetermined as set forth above, the Borrower shall provide to the Agent
(a) a revised Compliance Certificate, and (b) an Acquisition EBITDA
Certificate, in each case reflecting the consolidated status (including
increased Debt) and results (including increased EBITDA) of the Borrower as if
such Acquisition had occurred prior to the beginning of the applicable period,
and the Agent shall make an interim redetermination of the ratio and, if the
ratio has increased, the resulting Applicable Margin shall be adjusted based
upon such information. Any such adjustment to the Applicable Margin shall
become effective on the effective date of the Acquisition.
Upon any change in the Applicable Margin, the Agent shall promptly notify the
Borrower and the Banks of the new Applicable Margin.
"Applicable Lending Office" means, with respect to each Bank and for any
particular type of transaction, the office of such Bank set forth in Schedule I
to this Agreement (or in the applicable Assignment and Acceptance by which such
Bank joined this Agreement) as its applicable lending office for such type of
transaction or such other office of such Bank as such Bank may from time to
time specify in writing to the Borrower and the Agent for such particular type
of transaction.
"Assignment and Acceptance" means an Assignment and Acceptance in
substantially the form of Exhibit E executed by an assignor Bank, an assignee
Bank, and the Agent, in accordance with Section 8.5.
"BRC" means Business Resources Corporation, a Texas corporation.
"BRC/GRS Pledge Agreement and Guaranty" is defined within the definition
of "Pledge Agreement".
"BRC Loan Documents" means the $6,000,000 Note dated July 31, 1997
executed by Title Records Corporation in favor of Business Records Corporation
and the security agreement and the pledge agreement and guaranty securing the
Note.
"Banks" means the lenders listed as Banks on the signature pages of this
Agreement and each Eligible Assignee that shall become a party to this
Agreement pursuant to Section 8.5(b).
-3-
<PAGE> 8
"Base Rate Tranche" shall mean any Tranche which bears interest based
upon the Adjusted Base Rate, as determined in accordance with Section 2.4.
"Borrower" means Tyler Corporation, a Delaware corporation.
"Borrower Account" means the principal operating account of Borrower
with the Agent or any other account of Borrower with the Agent which is
designated as Borrower's "Borrower Account" in writing by the Borrower to the
Agent.
"Business Day" means any Monday through Friday during which commercial
banks are open for business in Houston, Texas, Dallas, Texas, and, if the
applicable Business Day relates to any LIBOR Tranche, on which dealings are
carried on in the London interbank market.
"Capital Expenditures" means, with respect to any Person and with
respect to any period of its determination, the consolidated expenditures of
such Person during such period that are required to be included in or are
reflected by the consolidated property, plant, or equipment accounts of such
Person, or any similar fixed asset or long term capitalized asset accounts of
such Person, on the consolidated balance sheet of such Person in conformity
with generally accepted accounting principles. Capital Expenditures shall not
include, however, such expenditures deemed to have occurred as a result of any
Acquisition.
"Capital Leases" means, with respect to any Person, any lease of any
property by such Person which would, in accordance with generally accepted
accounting principles, be required to be classified and accounted for as a
capital lease on the balance sheet of such Person.
"Change of Control" means, with respect to the Borrower, excluding the
effect of the Borrower's acquisition of BRC and TSG, (a) the direct or indirect
acquisition after the date hereof by any Person or related Persons constituting
a group of (i) beneficial ownership of issued and outstanding shares of Voting
Securities of the Borrower, the result of which acquisition is that such Person
or such group possesses 30% or more of the combined voting power of all
then-issued and outstanding Voting Securities of the Borrower or (ii) the power
to elect, appoint, or cause the election or appointment of at least a majority
of the members of the board of directors of the Borrower, or (b) the
individuals who, at the beginning of any period of 12 consecutive months,
constitute the Borrower's board of directors (together with any new director
whose election by the Borrower's board of directors or whose nomination for
election by the Borrower's stockholders entitled to vote thereon was approved
by a vote of at least a majority of the directors then still in office who
either were directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason (other
than death or disability) to constitute a majority of the Borrower's board of
directors then in office.
-4-
<PAGE> 9
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor statute.
"Commonly Controlled Entity" means, with respect to any Person, any
other Person which is under common control with such Person within the meaning
of Section 414 of the Code.
"Compliance Certificate" means a compliance certificate executed by a
Responsible Officer of the Borrower in substantially the form of Exhibit A.
"Continuation/Conversion Request" means a Continuation/Conversion
Request in substantially the form of Exhibit C executed by a Responsible
Officer of the Borrower and delivered to the Agent.
"Credit Documents" means this Agreement, the Revolving Loan Notes, the
Letter of Credit Documents, the Guaranty, the Security Documents, the Interest
Hedge Agreements, and each other agreement, instrument, or document executed at
any time in connection with this Agreement.
"Credit Obligations" means all principal, interest, fees,
reimbursements, indemnifications, and other amounts now or hereafter owed by
the Borrower to the Agent and the Banks (or with respect to the Interest Hedge
Agreements, any Affiliates of the Banks) under this Agreement, the Revolving
Loan Notes, the Letter of Credit Documents, and the other Credit Documents and
any increases, extensions, and rearrangements of those obligations under any
amendments, supplements, and other modifications of the documents and
agreements creating those obligations.
"Credit Parties" means the Borrower, the Guarantors, TPI of Texas, Inc.,
a Delaware corporation, and Swan Transportation Company, a Delaware
corporation.
"Debt" means, with respect to any Person or group of Persons on a
consolidated basis, without duplication, (a) indebtedness of such Person for
borrowed money, (b) obligations of such Person evidenced by bonds, debentures,
notes, or other similar instruments, (c) obligations of such Person to pay the
deferred purchase price of property or services (other than trade debt and
normal operating liabilities incurred in the ordinary course of business), (d)
obligations of such Person as lessee under Capital Leases, (e) obligations of
such Person under or relating to letters of credit, guaranties, purchase
agreements, or other creditor assurances assuring a creditor against loss in
respect of indebtedness or obligations of others of the kinds referred to in
clauses (a) through (d) of this definition, and (f) nonrecourse indebtedness or
obligations of others of the kinds referred to in clauses (a) through (e) of
this definition secured by any Lien on or in respect of any property of such
Person. For the purposes of determining the amount of any Debt, the amount of
any Debt described in clause (e) of the definition of Debt shall be valued at
the maximum amount of the contingent liability
-5-
<PAGE> 10
thereunder and the amount of any Debt described in clause (f) that is not
covered by clause (e) shall be valued at the lesser of the amount of the Debt
secured or the book value of the property securing such Debt.
"Default" means (a) an Event of Default or (b) any event or condition
which with notice or lapse of time or both would, unless cured or waived,
become an Event of Default.
"Default Rate" means, with respect to any amount due hereunder, a per
annum interest rate equal to (a) if such amount is either outstanding principal
accruing interest based upon a rate established elsewhere in this Agreement or
accrued but unpaid interest thereon, the sum of (i) the interest rate
established elsewhere in this Agreement from time to time for such principal
amount, including any applicable margin, plus (ii) 2.00% per annum or (b) in
all other cases, the Adjusted Base Rate in effect from time to time plus the
Applicable Margin for Base Rate Tranches in effect from time to time plus 2.00%
per annum.
"Derivatives" means any swap, hedge, cap, collar, or similar arrangement
providing for the exchange of risks related to price changes in any commodity,
including money.
"Dollars or $" means lawful money of the United States of America.
"EBIT" means, with respect to any Person and for any period of its
determination, the consolidated net income of such Person for such period, plus
the consolidated interest expense and income and franchise taxes of such Person
for such period less extraordinary gains and interest income.
"EBITDA" means, with respect to any Person and for any period of its
determination, the EBIT of such Person for such period, plus the consolidated
depreciation and amortization of such Person for such period. With respect to
any determination of the consolidated EBITDA of the Borrower, the earnings of
the Borrower used in making such determination shall be determined before the
effect of the extraordinary charges for discontinued operations incurred in
1997 and for the charges included in Schedule III to this Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Eligible Assignee" means, with respect to any assignment hereunder at
the time of such assignment, any commercial bank organized under the laws of
the United States or any of the countries parties to the Organization for
Economic Cooperation and Development or any political subdivision of any
thereof which has primary capital (or its equivalent) of not less than
$250,000,000 and which maintains a branch or agency in the United States which
shall be designated its Applicable Lending Office for non-LIBOR based
transactions, is approved by the Agent, and, so long as no Event of Default
exists, is approved by the Borrower, in either case, such approval not to be
unreasonably withheld.
-6-
<PAGE> 11
"Environmental Law" means all federal, state, and local laws, rules,
regulations, ordinances, orders, decisions, agreements, and other requirements
now or hereafter in effect relating to the pollution, destruction, loss, or
injury of the environment, the presence of any contaminant in the environment,
the protection, cleanup, remediation, or restoration of the environment, the
creation, handling, transportation, use, or disposal of any waste product in
the environment, exposure of persons to any contaminant, waste, or hazardous
substance in the environment, and the health and safety of employees in
relation to their environment.
"Event of Default" has the meaning specified in Section 6.1.
"Federal Funds Rate" means, for any period, a fluctuating per annum
interest rate equal for each day during such period to the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day
(or, if such day is not a Business Day, for the next preceding Business Day) by
the Federal Reserve Bank of New York, or, if such rate is not so published for
any day which is a Business Day, the average of the quotations for any such day
on such transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System or any of its successors.
"Financial Statements" means:
(a) for Borrower, audited fiscal year end financial statements dated
December 31, 1996;
(b) for BRC, audited fiscal year end financial statements dated
December 31, 1996; and
(c) for TSG, audited fiscal year end financial statements dated
October 31, 1997.
"GRS" is defined in the definition of "Pledge Agreement".
"Guaranty" means the Guaranty dated as of February 13, 1998, made by
Forest City Auto Parts Company, T1 Acquisition Corporation, T2 Acquisition
Corporation, and T3 Acquisition Corporation, each a Subsidiary of the Borrower,
in favor of the Agent guarantying the Credit Obligations.
"Guarantors" means (a) the Subsidiaries of the Borrower that have
executed the Guaranty in connection with the execution of this Agreement and
(b) any future Subsidiaries of the Borrower that join the Guaranty pursuant to
Section 5.19.
-7-
<PAGE> 12
"Hazardous Materials" means any substance or material identified as a
hazardous substance pursuant to the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended and as now or hereafter in
effect; any substance or material regulated as a hazardous waste pursuant to
the Resource Conservation and Recovery Act of 1976, as amended and as now or
hereafter in effect; and any substance or material designated as a hazardous
substance or hazardous waste pursuant to any other Environmental Law.
"Highest Lawful Rate" means the maximum lawful interest rate, if any,
that at any time or from time to time may be contracted for, charged, or
received under the laws applicable to the Bank which are presently in effect
or, to the extent allowed by law, under such applicable laws which may
hereafter be in effect and which allow a higher maximum nonusurious interest
rate than applicable laws now allow. The maximum lawful rate under this
Agreement shall be the weekly indicated rate ceiling under Chapter 1D of
Article 5069 of the Texas Revised Civil Statutes, unless any other lawful rate
ceiling exceeds the rate ceiling so determined, and then the higher rate
ceiling shall apply.
"Interest Hedge Agreements" means any swap, hedge, cap, collar, or
similar arrangement between the Borrower and any Bank (or any Affiliate of any
Bank) providing for the exchange of risks related to price changes in the
interest rate on the Revolving Loan Advances under this Agreement.
"Interest Period" means, with respect to each LIBOR Tranche, the period
commencing on the date of such LIBOR Tranche and ending on the last day of the
period selected by the Borrower pursuant to the provisions below. The duration
of each such Interest Period shall be one, two, three, or six months, in each
case as the Borrower may select in the applicable Revolving Loan Borrowing
Request or Continuation/Conversion Request (unless there shall exist any
Default or Event of Default, in which case the Borrower may only select one
month Interest Periods); provided, however, that:
(a) whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such Interest Period
shall be extended to occur on the next succeeding Business Day; provided that
if such extension 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;
(b) any Interest Period which begins on the last Business Day of the
calendar month (or on a day for which there is no numerically corresponding day
in the calendar month at the end of such Interest Period) shall end on the last
Business Day of the calendar month in which it would have ended if there were a
numerically corresponding day in such calendar month; and
(c) the Borrower may not select an Interest Period for any LIBOR
Tranche which ends after any date when outstanding principal amounts of the
Revolving Loan must be repaid
-8-
<PAGE> 13
unless, after giving effect to such selection, the aggregate outstanding
principal amount of Base Rate Tranches under the Revolving Loan and LIBOR
Tranches under the Revolving Loan having Interest Periods which end on or
before such repayment date shall be at least equal to or greater than the
principal amount of the Revolving Loan due and payable on or before such date
(and therefore in no event shall any Interest Period for any LIBOR Tranche
extend beyond the Revolving Loan Maturity Date).
"Interim Financial Statements" means:
(a) for Borrower, unaudited interim financial statements dated
September 30, 1997; and
(b) for BRC, unaudited interim financial statements dated September
30, 1997.
"Issuing Bank" means NationsBank and any successor issuing bank pursuant
to Section 7.7.
"LIBOR" means, for any LIBOR Tranche for any Interest Period therefor,
the rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
appearing on Telerate Page 3750 (or any successor page) as the London interbank
offered rate for deposits in Dollars at approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period. If for any reason such rate is not
available, the term "LIBOR" shall mean, for any LIBOR Tranche for any Interest
Period therefor, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page as the London
interbank offered rate for deposits in Dollars at approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such Interest Period
for a term comparable to such Interest Period; provided, however, if more than
one rate is specified on Reuters Screen LIBO Page, the applicable rate shall be
the arithmetic mean of all such rates.
"LIBOR Tranche" shall mean any Tranche which bears interest based upon
the LIBOR, as determined in accordance with Section 2.5.
"Letter of Credit" means any commercial or standby letter of credit
issued by the Issuing Bank for the account of the Borrower pursuant to the
terms of this Agreement.
"Letter of Credit Application" means the Issuing Bank's standard form
letter of credit application for either a commercial or standby letter of
credit, as the case may be, which has been executed by a Borrower and accepted
by the Issuing Bank in connection with the issuance of a Letter of Credit.
"Letter of Credit Application Amendment" means the Issuing Bank's
standard form application to amend a letter of credit for either a commercial
or standby letter of credit, as
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<PAGE> 14
the case may be, which has been executed by a Borrower and accepted by the
Issuing Bank in connection with the increase or extension of a Letter of
Credit.
"Letter of Credit Collateral Account" means a special cash collateral
account pledged to the Agent containing cash deposited pursuant to Sections
2.2(d) or 6.4 to be maintained with the Agent in accordance with Section
2.2(g).
"Letter of Credit Documents" means all Letters of Credit, Letter of
Credit Applications, Letter of Credit Application Amendments, and agreements,
documents, and instruments entered into in connection with or relating thereto.
"Letter of Credit Exposure" means, as of any date of its determination,
the aggregate outstanding undrawn amount of Letters of Credit plus the
aggregate of the reimbursement obligations of the Borrower under the Letter of
Credit Applications and this Agreement.
"Letter of Credit Sublimit" means $5,000,000.
"Lien" means any mortgage, lien, pledge, charge, deed of trust, security
interest, encumbrance, or other type of preferential arrangement to secure or
provide for the payment of any obligation of any Person, whether arising by
contract, operation of law, or otherwise (including any title retention for
such purposes under any conditional sale agreement, any Capital Lease, or any
other title transfer or retention agreement).
"Majority Banks" means, at any time, Banks holding more than 67% of the
then aggregate unpaid principal amount of the Revolving Loan Notes held by the
Banks and the Letter of Credit Exposure of the Banks at such time; provided
that if no such principal amount or Letter of Credit Exposure is then
outstanding, "Majority Banks" shall mean Banks having more than 67% of the
aggregate amount of the Revolving Loan Commitments at such time.
"Material Adverse Change" means any material adverse change in the
business, operations, or financial condition of the Borrower and its
Subsidiaries on a consolidated basis or, prior to the date on which the initial
extension of credit is made under this Agreement, BRC, or TSG.
"Minimum Borrowing Amount" means $250,000 for each Base Rate Tranche and
$1,000,000 for each LIBOR Tranche.
"Minimum Borrowing Multiple" means $250,000 for each Base Rate Tranche
and $1,000,000 for each LIBOR Tranche.
"Minimum Tranche Amount" means $250,000 for each Base Rate Tranche and
$1,000,000 for each LIBOR Tranche.
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"Minimum Tranche Multiple" means $250,000 for each Base Rate Tranche and
$1,000,000 for each LIBOR Tranche.
"NationsBank" means NationsBank of Texas, N.A., in its individual
capacity.
"Net Worth" means, with respect to any Person and as of any date of its
determination, the excess of (a) the assets of such Person over (b) the
liabilities of such Person.
"PBGC" means Pension Benefit Guaranty Corporation or its successor.
"Permitted Debt" means all of the following Debt:
(a) Debt in the form of the Credit Obligations;
(b) Debt between Credit Parties; and
(c) Debt outstanding as of the date of the most recent Interim
Financial Statements or Financial Statement with respect to TSG and disclosed
in the Interim Financial Statements or the Financial Statement with respect to
TSG or on Schedule II in an aggregate outstanding amount not to exceed
$10,000,000; and
(d) Debt other than that specified above in an aggregate outstanding
amount not to exceed $5,000,000.
"Permitted Investments" means all of the following investments:
(a) (i) investments in Guarantors that are wholly-owned Subsidiaries
of the Borrower, (ii) investments in Persons other than Guarantors that are
wholly-owned Subsidiaries of the Borrower that were made or assumed in
connection with Acquisitions to the extent such investments were expressly
approved by the Majority Banks in connection with such Acquisitions, but no
further investments therein unless such further investments have been approved
by the Majority Banks, and (iii) loans, advances, and other investments in
Persons other than those permitted in clause (i) and (ii) in an aggregate
outstanding amount not to exceed $1,000,000;
(b) investments in the form of short term loans, guaranties, open
accounts, and other extensions of trade credit in the ordinary course of
business;
(c) investments in commercial paper and bankers' acceptances maturing
in twelve months or less from the date of issuance and which, at the time of
acquisition are rated A-2 or better by Standard & Poor's Corporation and P-2 or
better by Moody's Investors Services, Inc;
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<PAGE> 16
(d) investments in direct obligations of the United States, or
investments in any Person which investments are guaranteed by the full faith
and credit of the United States, in either case maturing in twelve months or
less from the date of acquisition thereof and repurchase agreements having a
term of less than one year and fully collateralized by such obligations which
are entered into with banks or trust companies described in clause (e) below or
brokerage companies having net worth in excess of $250,000,000;
(e) investments in time deposits or certificates of deposit maturing
within one year from the date such investment is made, issued by a bank or
trust company organized under the laws of the United States or any state
thereof having capital, surplus, and undivided profits aggregating at least
$250,000,000 or a foreign branch thereof and whose long-term certificates of
deposit are, at the time of acquisition thereof, rated A-2 by Standard & Poor's
Corporation or Prime-2 by Moody's Investors Services, Inc.;
(f) investments in money market funds which invest solely in the
types of investments described in paragraphs (c) through (e) above; and
(g) investments disclosed on Schedule II or either (i) in the Interim
Financial Statements or (ii) in the Financial Statement of TSG.
In valuing any investments for the purpose of applying the limitations set
forth in this Agreement, such investments shall be taken at the original cost
thereof (but without reduction for any subsequent appreciation or depreciation
thereof) less any amount actually repaid or recovered on account of capital or
principal (but without reduction for any offsetting investments made by the
investee in the investor). For purposes of this Agreement, at any time when a
corporation becomes a Subsidiary of the Borrower, all investments of such
corporation at such time shall be deemed to have been made by such corporation
at such time.
"Permitted Liens" means all of the following Liens:
(a) Liens securing the Credit Obligations;
(b) Liens securing obligations under the BRC Loan Documents existing
on the date of this Agreement created by the BRC Loan Documents as they are in
effect on the date of this Agreement and covering the collateral described
therein, including proceeds of such collateral.
(c) Liens on equipment securing purchase money debt or Capital Leases
permitted under clause (c) of the definition of Permitted Debt provided that no
such Lien is spread to cover any property not purchased or leased in connection
with the incurrence of such Debt;
(d) Liens arising in the ordinary course of business which are not
incurred in connection with the borrowing of money, the obtaining of advances
or credit, or payment of
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<PAGE> 17
legal judgments and which do not materially detract from the value of any
Restricted Entity's assets or materially interfere with any Restricted Entity's
business, including such (i) Liens for taxes, assessments, or other
governmental charges or levies; (ii) Liens in connection with worker's
compensation, unemployment insurance, or other social security, old age
pension, or public liability obligations; (iii) Liens in the form of legal or
equitable encumbrances deemed to exist by reason of negative pledge covenants
and other covenants or undertakings of like nature; (iv) Liens in the form of
vendors', carriers', warehousemen's, repairmen's, mechanics', workmen's,
materialmen's, construction, or other like Liens arising by operation of law in
the ordinary course of business or incident to the construction or improvement
of any property; (v) Liens in the form of zoning restrictions, easements,
licenses, and other restrictions on the use of real property or minor
irregularities in title thereto which do not materially impair the use of such
property in the operation of the business of the applicable Restricted Entity
or the value of such property; and (vi) Liens in the form of precautionary
financing statements that have been filed to reflect operating leases (to the
extent such filings could be considered Liens hereunder);
(e) Other Liens on equipment disclosed on Schedule II or either (i)
in the Interim Financial Statements or (ii) in the Financial Statement of TSG;
and
(f) Liens on equipment and real property acquired pursuant to an
Acquisition not totalling more than the Debt permitted pursuant to clause (d)
of the definition of Permitted Debt provided that in connection with any
Acquisition, liens on equipment and real property of the Borrower other than
those acquired in that Acquisition are not permitted.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association, joint
venture, or other entity, or a government or any political subdivision or
agency thereof, or any trustee, receiver, custodian, or similar official.
"Plan" means any (a) employee medical benefit plan under Section 3(1) of
ERISA, (b) employee pension benefit plan under Section 3(2) of ERISA, (c)
multiemployer plan under Section 4001(a)(3) of ERISA, and (d) employee account
benefit plan under Section 3(2) of ERISA.
"Pledge Agreement" means the Pledge Agreement dated as of February 13,
1998, made by Borrower and the Subsidiaries of Borrower in favor of the Agent
granting the Agent a security interest in the stock of each Subsidiary (whether
direct or indirect) of Borrower to secure the Credit Obligations; provided,
however, that BRC shall not be required to pledge the stock of Government
Records Services, Inc. ("GRS") and GRS shall not be required to pledge the
stock of Title Records Corporation until such time as the Pledge Agreement and
Guaranty dated as of July 31, 1997, by BRC and GRS in favor of Business Records
Corporation (the "BRC/GRS Pledge Agreement and Guaranty") shall be terminated.
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<PAGE> 18
"Prime Rate" means, for any day, the fluctuating per annum interest rate
in effect on such day equal to the rate of interest publicly announced by the
Agent as its prime rate, whether or not the Borrower has notice thereof.
"Prohibited Transaction" means any transaction set forth in Section 406
of ERISA or Section 4975 of the Code.
"ratable share" or "pro rata share" means, with respect to any Bank and
as of any date of its determination, either (a) the ratio of such Bank's
Revolving Loan Commitment at such time to the aggregate Revolving Loan
Commitments at such time or (b) if the Revolving Loan Commitments have been
terminated, the ratio of such Bank's aggregate outstanding Revolving Loan
Advances and share of the Letter of Credit Exposure at such time to the
aggregate outstanding Revolving Loan Advances and Letter of Credit Exposure at
such time.
"Related Parties" means, with respect to any Person, such Person's
stockholders, directors, officers, employees, agents, Affiliates, successors,
and assigns, and their respective stockholders, directors, officers, employees,
and agents, and, with respect to any Person that is an individual, such
Person's family relations and heirs.
"Reportable Event" means any of the events set forth in Section 4043 of
ERISA.
"Responsible Officer" means, with respect to any Person, such Person's
Chief Executive Officer, President, Vice President, Chief Financial Officer,
Secretary, Treasurer, or any other officer of such Person designated by any of
the foregoing in writing from time to time.
"Restricted Entities" means the Borrower and each Subsidiary of the
Borrower.
"Revolving Loan" means the aggregate outstanding principal amount of the
Revolving Loan Borrowings.
"Revolving Loan Advance" means the outstanding principal from a Bank
which represents such Bank's ratable share of a Revolving Loan Borrowing.
"Revolving Loan Borrowing" means any aggregate amount of principal
advanced on the same day and pursuant to the same Revolving Loan Borrowing
Request under the revolving loan facility created in Section 2.1.
"Revolving Loan Borrowing Request" means a Revolving Loan Borrowing
Request in substantially the form of Exhibit B executed by a Responsible
Officer of the Borrower and delivered to the Agent.
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<PAGE> 19
"Revolving Loan Commitment" means, for any Bank, the amount set forth
below such Bank's name on the signature pages of this Agreement as its
Revolving Loan Commitment, or if such Bank has entered into any Assignment and
Acceptance since the date of this Agreement, as set forth for such Bank as its
Revolving Loan Commitment in the Register maintained by the Agent pursuant to
Section 8.5(c), in each case as such amount may be terminated pursuant to
Section 6.2.
"Revolving Loan Maturity Date" means February 13, 2001.
"Revolving Loan Note" means a promissory note of the Borrower payable to
the order of a Bank, in substantially the form of Exhibit D, evidencing the
indebtedness of the Borrower to such Bank resulting from Revolving Loan
Advances made by such Bank to the Borrower.
"Security Documents" means the Pledge Agreement and any other document
creating or consenting to Liens in favor of the Agent securing Credit
Obligations.
"Subsidiary" means, with respect to any Person, any other Person, a
majority of whose outstanding Voting Securities (other than directors'
qualifying shares) shall at any time be owned by such Person or one or more
Subsidiaries of such person.
"Swan" means Swan Transportation Company, a Delaware corporation.
"TPI" means TPI of Texas, Inc., a Delaware corporation.
"TSG" means The Software Group, Inc., a Texas corporation.
"Tranche" means any tranche of principal outstanding under the Revolving
Loan accruing interest on the same basis whether created in connection with new
advances of principal under the Revolving Loan pursuant to Section 2.4(a)(i) or
by the continuation or conversion of existing tranches of principal under the
Revolving Loan pursuant to Section 2.4(a)(ii) and shall include any Base Rate
Tranche or LIBOR Tranche.
"Type" has the meaning set forth in Section 1.4.
"Voting Securities" means (a) with respect to any corporation, any
capital stock of the corporation having general voting power under ordinary
circumstances to elect directors of such corporation, (b) with respect to any
partnership, any partnership interest having general voting power under
ordinary circumstances to elect the general partner or other management of the
partnership, and (c) with respect to any other Person, such ownership interests
in such Person having general voting power under ordinary circumstances to
elect the management of such Person, in each case irrespective of whether at
the time any other
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<PAGE> 20
class of stock, partnership interests, or other ownership interest might have
special voting power or rights by reason of the happening of any contingency.
1.2 Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
means "to but excluding."
1.3 Accounting Terms; Preparation of Financials.
(a) All accounting terms, definitions, ratios, and other tests
described herein shall be construed in accordance with United States generally
accepted accounting principles applied on a consistent basis with those applied
in the preparation of the Financial Statements, except as expressly set forth
in this Agreement.
(b) The Restricted Entities shall prepare their financial
statements in accordance with United States generally accepted accounting
principles applied on a consistent basis with those applied in the preparation
of the Financial Statements, unless otherwise approved in writing by the Agent.
The Restricted Entities shall not conduct any Acquisition that requires pooling
accounting treatment in accordance with generally accepted accounting
principles without the approval of the Agent.
(c) The Restricted Entities shall prepare all proforma
financial statements and certificates reflecting Acquisitions, including
Acquisition EBITDA Certificates and Compliance Certificates reflecting the
effects of Acquisitions pursuant to the definition of "Applicable Margin" or
for the purposes of Section 5.5(b), in accordance with the requirements
established by the Securities and Exchange Commission for acquisition
accounting for reported acquisitions by public companies, whether or not the
applicable Acquisitions are required to be publicly reported, and applying such
requirements to make such proforma financial statements and certificates
reflect the accounting procedures used in the preparation of the regular
financial statements of the Restricted Entities unless otherwise approved in
writing by the Agent. All applications of the foregoing requirements regarding
proforma financial statements and certificates must be approved by the Agent.
1.4 Types. The "Type" of a Tranche refers to the determination
whether such tranche is a LIBOR Tranche or a Base Rate Tranche.
1.5 Interpretation. Article, Section, Schedule, and Exhibit
references are to this Agreement, unless otherwise specified. All references
to instruments, documents, contracts, and agreements are references to such
instruments, documents, contracts, and agreements as the same may be amended,
supplemented, and otherwise modified from time to time, unless otherwise
specified. The word "including" shall mean "including but not limited to." The
word "or" shall mean "and/or" wherever necessary to prevent interpretation of
any provision against the Agent or the Banks. Whenever the Borrower has an
obligation under this
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<PAGE> 21
Agreement and the Credit Documents the expense of complying with that
obligation shall be an expense of the Borrower unless otherwise specified.
Whenever any determination is to be made by the Agent or any Bank, such
determination shall be in such Person's sole discretion unless otherwise
specified in this Agreement. If any provision in this Agreement and the Credit
Documents is held to be illegal, invalid, not binding, or unenforceable, such
provision shall be fully severable and this Agreement and the Credit Documents
shall be construed and enforced as if such illegal, invalid, not binding, or
unenforceable provision had never comprised a part of this Agreement and the
Credit Documents, and the remaining provisions shall remain in full force and
effect. This Agreement and the Credit Documents have been reviewed and
negotiated by sophisticated parties with access to legal counsel and shall not
be construed against the drafter. In the event of a conflict between this
Agreement and any other Credit Documents, this Agreement shall control.
ARTICLE 2. CREDIT FACILITIES.
2.1 Revolving Loan Facility.
(a) (i) Revolving Loan Commitments. Each Bank severally
agrees, on the terms and conditions set forth in this Agreement and for the
purposes set forth in Section 5.4, to make Revolving Loan Advances to the
Borrower as such Bank's ratable share of Revolving Loan Borrowings requested by
the Borrower from time to time on any Business Day during the period from the
date of this Agreement until the Revolving Loan Maturity Date provided that the
aggregate outstanding principal amount of Revolving Loan Advances made by such
Bank plus such Bank's ratable share of the Letter of Credit Exposure shall not
exceed such Bank's Revolving Loan Commitment. Revolving Loan Borrowings must
be made in an amount equal to or greater than the Minimum Borrowing Amount and
be made in multiples of the Minimum Borrowing Multiple. Within the limits
expressed in this Agreement, the Borrower may from time to time borrow, prepay,
and reborrow Revolving Loan Borrowings. The indebtedness of the Borrower to
the Banks resulting from the Revolving Loan Advances made by the Banks shall be
evidenced by Revolving Loan Notes made by the Borrower.
(ii) Reduction of Revolving Loan Commitments The
Borrower shall have the right, upon at least 30 days' advance notice to the
Agent, to reduce ratably in part or terminate in whole the Revolving Loan
Commitments. Each such notice shall specify the amount of the termination or
reduction and shall be irrevocable and binding on the Borrower. Partial
reductions shall be in a minimum amount of $5,000,000 and be made in integral
multiples of $5,000,000. In the event of any partial reduction, each Bank's
Revolving Loan Commitment shall be reduced pro rata. The Revolving Loan
Commitments cannot be reduced below the amount of the Revolving Loan plus the
Letter of Credit Exposure. Any termination or reduction of the Revolving Loan
Commitments pursuant to this Section 2.1(a)(ii) shall be permanent, with no
obligation of the Banks to reinstate such reduced or terminated Revolving Loan
Commitments.
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(b) Method of Advancing
(i) Each Revolving Loan Borrowing shall be made
pursuant to a Revolving Loan Borrowing Request given by the Borrower to the
Agent in writing or by telecopy not later than the time required pursuant to
Section 2.4(a)(i) to select the interest rate basis for the Revolving Loan
Borrowing. Each Revolving Loan Borrowing Request shall be fully completed and
shall specify the information required therein, and shall be irrevocable and
binding on the Borrower. If the Revolving Loan Borrowing Request is accepted
by the Agent, the Agent shall promptly forward notice of the Revolving Loan
Borrowing to the Banks. Each Bank shall, before 2:00 p.m. (local time at the
Applicable Lending Office of the Agent) on the date of the requested Revolving
Loan Borrowing, make available from its Applicable Lending Office to the Agent
at the Agent's Applicable Lending Office, in immediately available funds, such
Bank's ratable share of such Revolving Loan Borrowing. Subject to the
satisfaction of all applicable conditions precedent, after receipt by the Agent
of such funds, the Agent shall before close of business on the date requested
for such Revolving Loan Borrowing make such Revolving Loan Borrowing available
to the Borrower in immediately available funds at the Borrower Account.
(ii) Unless the Agent shall have received notice from a
Bank before the date of any Revolving Loan Borrowing that such Bank shall not
make available to the Agent such Bank's ratable share of such Revolving Loan
Borrowing, the Agent may assume that such Bank has made its ratable share of
such Revolving Loan Borrowing available to the Agent on the date of such
Revolving Loan Borrowing in accordance with paragraph (i) above and the Agent
may, in reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If and to the extent that such Bank shall not
have so made its ratable share of such Revolving Loan Borrowing available to
the Agent, such Bank agrees that it shall pay interest on such amount for each
day from the date such amount is made available to the Borrower by the Agent
until the date such amount is paid to the Agent by such Bank at the Federal
Funds Rate in effect from time to time, provided that with respect to such Bank
if such amount is not paid by such Bank by the end of the second day after the
Agent makes such amount available to the Borrower, the interest rates specified
above shall be increased by a per annum amount equal to 2.00% on the third day
and shall remain at such increased rate thereafter. Interest on such amount
shall be due and payable by such Bank upon demand by the Agent. If such Bank
shall pay to the Agent such amount and interest as provided above, such amount
so paid shall constitute such Bank's Revolving Loan Advance as part of such
Revolving Loan Borrowing for all purposes of this Agreement even though not
made on the same day as the other Revolving Loan Advances comprising such
Revolving Loan Borrowing. In the event that such Bank has not repaid such
amount by the end of the fifth day after such amount was made available to the
Borrower, the Borrower agrees to repay to the Agent on demand such amount,
together with interest on such amount for each day from the date such amount
was made available to the Borrower until the date such amount is repaid to the
Agent at the interest rate charged to the Borrower for such Revolving Loan
Borrowing under the terms of this Agreement.
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<PAGE> 23
(iii) The failure of any Bank to make available its
ratable share of any Revolving Loan Borrowing shall not relieve any other Bank
of its obligation, if any, to make available its ratable share of such
Revolving Loan Borrowing. No Bank shall be responsible for the failure of any
other Bank to honor such other Bank's obligations hereunder, including any
failure to make available any funds as part of any Revolving Loan Borrowing.
(c) Prepayment.
(i) The Borrower may prepay the outstanding principal
amount of the Revolving Loan pursuant to written notice given by the Borrower
to the Agent in writing or by telecopy not later than (A) 2:00 p.m. (local time
at the Applicable Lending Office of the Agent) on the third Business Day before
the date of the proposed prepayment, in the case of the prepayment of any
portion of the Revolving Loan which is comprised of LIBOR Tranches, or (B)
12:00 noon (local time at the Applicable Lending Office of the Agent) on the
same Business Day of the proposed prepayment, in the case of the prepayment of
any portion of the Revolving Loan comprised solely of Base Rate Tranches. Each
such notice shall specify the principal amount and Tranches of the Revolving
Loan which shall be prepaid, the date of the prepayment, and shall be
irrevocable and binding on the Borrower. Prepayments of the Revolving Loan
shall be made in integral multiples of the Minimum Borrowing Multiple. If the
prepayment would cause the aggregate outstanding principal amount of any LIBOR
Tranche comprising all or any part of the Revolving Loan or the aggregate
outstanding principal amount of all Base Rate Tranches comprising all or any
part of the Revolving Loan, to be less than the Minimum Tranche Amount, the
prepayment must be in an amount equal to the entire outstanding principal
amount of such LIBOR Tranche under the Revolving Loan or the entire outstanding
principal amount of all Base Rate Tranches under the Revolving Loan, as the
case may be. Upon receipt of any notice of prepayment, the Agent shall give
prompt notice of the intended prepayment to the Banks. For each such notice
given by the Borrower, the Borrower shall prepay the Revolving Loan in the
specified amount on the specified date as set forth in such notice. The
Borrower shall have no right to prepay any principal amount of the Revolving
Loan except as provided in this Section 2.1(c)(i).
(ii) Each prepayment of principal of any LIBOR Tranche
under the Revolving Loan pursuant to this Section 2.1(c) shall be accompanied
by payment of all accrued but unpaid interest on the principal amount prepaid
and any amounts required to be paid pursuant to Section 2.5 as a result of such
prepayment.
(d) Repayment. The Borrower shall pay to the Agent for the
ratable benefit of the Banks the aggregate outstanding principal amount of the
Revolving Loan on the Revolving Loan Maturity Date.
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2.2 Letter of Credit Facility.
(a) Commitment for Letters of Credit. The Issuing Bank shall,
on the terms and conditions set forth in this Agreement and for the purposes
set forth in Section 5.4, issue, increase, and extend Letters of Credit at the
request of the Borrower from time to time on any Business Day during the period
from the date of this Agreement until the Revolving Loan Maturity Date provided
that (i) the Letter of Credit Exposure shall not exceed the Letter of Credit
Sublimit and (ii) the aggregate outstanding principal amount of Revolving Loan
Borrowings plus the Letter of Credit Exposure shall not exceed the aggregate
amount of the Revolving Loan Commitments. No Letter of Credit may have an
expiration date later than 12 months after its issuance date, and each Letter
of Credit which is self-extending beyond its expiration date must be cancelable
upon no more than 60 days notice given by the Issuing Bank to the beneficiary
of such Letter of Credit. No Letter of Credit may have an expiration date
later than 12 months after the Revolving Loan Maturity Date unless approved by
the Issuing Bank, the Agent, and the Banks. Each Letter of Credit must be in
form and substance acceptable to the Issuing Bank. The indebtedness of the
Borrower to the Issuing Bank resulting from Letters of Credit requested by the
Borrower shall be evidenced by the Letter of Credit Applications made by the
Borrower.
(b) Requesting Letters of Credit. Each Letter of Credit shall
be issued, increased, or extended pursuant to a Letter of Credit Application or
Letter of Credit Application Amendment, as applicable, given by the Borrower to
the Issuing Bank in writing or by telecopy promptly confirmed in writing, such
Letter of Credit Application or Letter of Credit Application Amendment being
given not later than 2:00 p.m. (local time at the Applicable Lending Office of
the Agent) on the third Business Day before the date of the proposed issuance,
increase, or extension of the Letter of Credit. Each Letter of Credit
Application or Letter of Credit Application Amendment shall be fully completed
and shall specify the information required therein (including the proposed form
of the Letter of Credit or change thereto), and shall be irrevocable and
binding on the Borrower. If the Issuing Bank accepts the Letter of Credit
Application or Letter of Credit Application Amendment, the Issuing Bank shall
give prompt notice thereof to the Agent, and the Agent shall promptly inform
the Banks of the proposed Letter of Credit or change thereto. Subject to the
satisfaction of all applicable conditions precedent, the Issuing Bank shall
before close of business on the date requested by the Borrower for the
issuance, increase, or extension of such Letter of Credit issue, increase, or
extend such Letter of Credit to the specified beneficiary. Upon the date of
the issuance, increase, or extension of a Letter of Credit, the Issuing Bank
shall be deemed to have sold to each other Bank and each other Bank shall be
deemed to have purchased from the Issuing Bank a ratable participation in the
related Letter of Credit or change thereto. The Issuing Bank shall notify the
Agent of each Letter of Credit issued, increased, or extended and the date and
amount of each Bank's participation in such Letter of Credit, and the Agent
shall in turn notify the Banks.
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(c) Reimbursements for Letters of Credit. With respect to any
Letter of Credit and in accordance with the related Letter of Credit
Application, the Borrower agrees to pay to the Issuing Bank on demand of the
Issuing Bank any amount due to the Issuing Bank under such Letter of Credit
Application (provided that fees due with respect to such Letter of Credit shall
be payable as specified in Section 2.3(b)). If the Borrower does not pay upon
demand of the Issuing Bank any amount due to the Issuing Bank under any Letter
of Credit Application, in addition to any rights the Issuing Bank may have
under such Letter of Credit Application, the Issuing Bank may upon written
notice to the Agent request the satisfaction of such obligation by the making
of a Revolving Loan Borrowing. Upon such request, the Borrower shall be deemed
to have requested the making of a Revolving Loan Borrowing in the amount of
such obligation and the transfer of the proceeds thereof to the Issuing Bank.
Such Revolving Loan Borrowing shall be comprised of a Base Rate Tranche. The
Agent shall promptly forward notice of such Revolving Loan Borrowing to the
Borrower and the Banks, and each Bank shall, in accordance with the procedures
of Section 2.1(b), other than limitations on the size of Revolving Loan
Borrowings, and notwithstanding the failure of any conditions precedent, make
available such Bank's ratable share of such Revolving Loan Borrowing to the
Agent, and the Agent shall promptly deliver the proceeds thereof to the Issuing
Bank for application to such Bank's share of the obligations under such Letter
of Credit. The Borrower hereby unconditionally and irrevocably authorizes,
empowers, and directs the Issuing Bank to make such requests for Revolving Loan
Borrowings on behalf of the Borrower, and the Banks to make Revolving Loan
Advances to the Agent for the benefit of the Issuing Bank in satisfaction of
such obligations. The Agent and each Bank may record and otherwise treat the
making of such Revolving Loan Borrowings as the making of Revolving Loan
Borrowings to the Borrower under this Agreement as if requested by the
Borrower. Nothing herein is intended to release the Borrower's obligations
under any Letter of Credit Application, but only to provide an additional
method of payment therefor. The making of any Revolving Loan Borrowing under
this Section 2.2(c) shall not constitute a cure or waiver of any Default or
Event of Default caused by the Borrower's failure to comply with the provisions
of this Agreement or any Letter of Credit Application.
(d) Prepayments of Letters of Credit. In the event that any
Letters of Credit shall be outstanding according to their terms after the
Revolving Loan Maturity Date, the Borrower shall pay to the Agent an amount
equal to the Letter of Credit Exposure allocable to such Letters of Credit to
be held in the Letter of Credit Collateral Account and applied in accordance
with paragraph (g) below.
(e) Obligations Unconditional. The obligations of the
Borrower and each Bank under this Agreement and the Letter of Credit
Applications to make payments as required to reimburse the Issuing Bank for
draws under Letters of Credit and to make other payments due in respect of
Letters of Credit shall be unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement and the Letter of
Credit Applications under all circumstances, including: (i) any lack of
validity or enforceability of any
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Letter of Credit Document; (ii) any amendment, waiver, or consent to departure
from any Letter of Credit Document; (iii) the existence of any claim, set-off,
defense, or other right which the Borrower or any Bank may have at any time
against any beneficiary or transferee of any Letter of Credit (or any Persons
for whom any such beneficiary or any such transferee may be acting), the
Issuing Bank, or any other person or entity, whether in connection with the
transactions contemplated in this Agreement or any unrelated transaction; (iv)
any statement or any other document presented under such Letter of Credit
proving to be forged, fraudulent, invalid, or insufficient in any respect or
any statement therein being untrue or inaccurate in any respect; or (v) payment
by the Issuing Bank under any Letter of Credit against presentation of a draft
or certificate which does not comply with the terms of such Letter of Credit;
provided, however, that nothing contained in this paragraph (d) shall be deemed
to constitute a waiver of any remedies of the Borrower or any Bank in
connection with the Letters of Credit or the Borrower's or such Bank's rights
under paragraph (f) below.
(f) Liability of Issuing Bank. The Issuing Bank shall not be
liable or responsible for: (i) the use which may be made of any Letter of
Credit or any acts or omissions of any beneficiary or transferee in connection
therewith; (ii) the validity, sufficiency, or genuineness of documents related
to Letters of Credit, or of any endorsement thereon, even if such documents
should prove to be in any or all respects invalid, insufficient, fraudulent, or
forged; (iii) payment by the Issuing Bank against presentation of documents
which do not strictly comply with the terms of a Letter of Credit, including
failure of any documents to bear any reference or adequate reference to the
relevant Letter of Credit; or (iv) any other circumstances whatsoever in making
or failing to make payment under any Letter of Credit (INCLUDING THE ISSUING
BANK'S OWN NEGLIGENCE); except that the Issuing Bank shall be liable to the
Borrower or any Bank to the extent of any direct, as opposed to consequential,
damages suffered by the Borrower or such Bank which the Borrower or such Bank
proves were caused by (A) the Issuing Bank's gross negligence or willful
misconduct in determining whether documents presented under a Letter of Credit
comply with the terms of such Letter of Credit or (B) the Issuing Bank's
willful failure to make or delay in making lawful payment under any Letter of
Credit after the presentation to it of documentation strictly complying with
the terms and conditions of such Letter of Credit.
(g) Letter of Credit Collateral Account.
(i) If the Borrower is required to deposit funds in the
Letter of Credit Collateral Account pursuant to Sections 2.2(d) or 6.4, then
the Borrower and the Agent shall establish the Letter of Credit Collateral
Account and the Borrower shall execute any documents and agreements, including
the Agent's standard form assignment of deposit accounts, that the Agent
requests in connection therewith to establish the Letter of Credit Collateral
Account and grant the Agent a first priority security interest in such account
and the funds therein. The Borrower hereby pledges to the Agent and grants the
Agent a security interest in the Letter of Credit Collateral Account, whenever
established, all funds held in the
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Letter of Credit Collateral Account from time to time, and all proceeds thereof
as security for the payment of the Obligations.
(ii) Funds held in the Letter of Credit Collateral
Account shall be held as cash collateral for obligations with respect to
Letters of Credit and promptly applied by the Agent at the request of the
Issuing Bank to any reimbursement or other obligations under Letters of Credit
that exist or occur. To the extent that any surplus funds are held in the
Letter of Credit Collateral Account above the Letter of Credit Exposure, during
the existence of an Event of Default the Agent may (A) hold such surplus funds
in the Letter of Credit Collateral Account as cash collateral for the Credit
Obligations or (B) apply such surplus funds to any Credit Obligations in
accordance with Section 6.9. If no Default exists, the Agent shall release to
the Borrower at the Borrower's written request any funds held in the Letter of
Credit Collateral Account above the amounts required by Section 2.2(d).
(iii) Funds held in the Letter of Credit Collateral
Account shall be invested in money market funds of the Agent or in another
investment if mutually agreed upon by the Borrower and the Agent, but the Agent
shall have no other obligation to make any other investment of the funds
therein. The Agent shall exercise reasonable care in the custody and
preservation of any funds held in the Letter of Credit Collateral Account and
shall be deemed to have exercised such care if such funds are accorded
treatment substantially equivalent to that which the Agent accords its own
property, it being understood that the Agent shall not have any responsibility
for taking any necessary steps to preserve rights against any parties with
respect to any such funds.
(h) Existing Letters of Credit. There are no existing letters
of credit.
2.3 Fees.
(a) Unused Revolving Loan Commitment Fees. The Borrower shall
pay to the Agent for the ratable benefit of the Banks an unused commitment fee
for each day in an amount equal to the product of the Applicable Margin for
unused commitment fees in effect from time to time multiplied by the amount by
which (i) the aggregate amount of the Revolving Loan Commitments exceeds (ii)
the aggregate outstanding principal amount of the Revolving Loan plus the
Letter of Credit Exposure. The unused commitment fee shall be due and payable
in arrears on the last day of each calendar quarter and the Revolving Loan
Maturity Date.
(b) Fees for Letters of Credit. For each Letter of Credit
issued by the Issuing Bank, the Borrower shall pay to the Agent for the ratable
benefit of the Banks a letter of credit fee equal to the Applicable Margin for
letter of credit fees per annum on the face amount of such Letter of Credit for
the stated term of such Letter of Credit. In addition, for each Letter of
Credit issued by the Issuing Bank, the Borrower shall pay to the Agent for the
benefit of the Issuing Bank a fronting fee of 0.125% per annum on the face
amount of such
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Letter of Credit for the stated term of such Letter of Credit, with a minimum
fee of $400. The Borrower shall pay such letter of credit fees for each Letter
of Credit quarterly in arrears within ten days after when billed therefor by
the Issuing Bank.
(c) Agent Fee Letter. The Borrower shall pay to the Agent the
fees and other amounts payable under the Agent Fee Letter.
2.4 Interest.
(a) Election of Interest Rate Basis. The Borrower may select
the interest rate basis for the Revolving Loan in accordance with the terms of
this Section 2.4(a):
(i) Under the Revolving Loan Borrowing Request provided
to the Agent in connection with the making of each Revolving Loan Borrowing,
the Borrower shall select the amount and the Type of the Tranches, and for each
LIBOR Tranche selected, any permitted Interest Period for each such LIBOR
Tranche, which will comprise such Revolving Loan Borrowing, provided that (A)
at no time shall there be more than five separate LIBOR Tranches outstanding
and (B) each Tranche must be in a principal amount equal to or greater than the
Minimum Tranche Amount and be made in multiples of the Minimum Tranche
Multiple. Such interest rate elections must be provided to the Agent in
writing or by telecopy not later than 1:00 p.m. (local time at the Applicable
Lending Office of the Agent) on the third Business Day before the date of any
proposed Revolving Loan Borrowing comprised of a LIBOR Tranche or 11:00 a.m.
(local time at the Applicable Lending Office of the Agent) on the same day of
any proposed Revolving Loan Borrowing comprised solely of a Base Rate Tranche.
The Agent shall promptly forward copies of such interest rate elections to the
Banks. In the case of any Revolving Loan Borrowing comprised of a LIBOR
Tranche, upon determination by the Agent, the Agent shall promptly notify the
Borrower and the Banks of the applicable interest rate for such Tranche.
(ii) With respect to any Tranche, the Borrower may
continue or convert any portion of any LIBOR Tranche or Base Rate Tranche to
form new LIBOR Tranches or Base Rate Tranches in accordance with this
paragraph. Each such continuation or conversion shall be deemed to create a
new Tranche for all purposes of this Agreement. Each such continuation or
conversion shall be made pursuant to a Continuation/Conversion Request given by
the Borrower to the Agent in writing or by telecopy not later than 2:00 p.m.
(local time at the Applicable Lending Office of the Agent) on the third
Business Day before the date of the proposed continuation or conversion. Each
Continuation/Conversion Request shall be fully completed and shall specify the
information required therein, and shall be irrevocable and binding on the
Borrower. The Agent shall promptly forward notice of the continuation or
conversion to the Banks. In the case of any continuation or conversion into
LIBOR Tranches, upon determination by the Agent, the Agent shall notify the
Borrower and the Banks of the applicable interest rate. Continuations and
conversions of Tranches shall be made in integral multiples of the Minimum
Tranche Multiple. No continuation or conversion
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<PAGE> 29
shall be permitted if such continuation or conversion would cause the aggregate
outstanding principal amount of any LIBOR Tranche which would remain
outstanding or the aggregate outstanding principal amount of all Base Rate
Tranches which would remain outstanding to be less than the Minimum Tranche
Amount. At no time shall there be more than five separate LIBOR Tranches
outstanding. Any conversion of an existing LIBOR Tranche is subject to Section
2.5. Subject to the satisfaction of all applicable conditions precedent, the
Agent and the Banks shall before close of business on the date requested by the
Borrower for the continuation or conversion, make such continuation or
conversion.
(iii) At the end of the Interest Period for any LIBOR
Tranche if the Borrower has not continued or converted such LIBOR Tranche into
new Tranches as provided for in paragraph (ii) above, the Borrower shall be
deemed to have continued such LIBOR Tranche as a new LIBOR Tranche with an
Interest Period of one month. Each Base Rate Tranche shall continue as a Base
Rate Tranche unless the Borrower converts such Base Rate Tranche as provided
for in paragraph (ii) above.
(b) LIBOR Tranches. Each LIBOR Tranche shall bear interest
during its Interest Period at a per annum interest rate equal to the sum of the
LIBOR for such Tranche plus the Applicable Margin for LIBOR Tranches in effect
from time to time. The Borrower shall pay to the Agent for the ratable benefit
of the Banks all accrued but unpaid interest on each LIBOR Tranche on the last
day of the applicable Interest Period for such LIBOR Tranche (and with respect
to LIBOR Tranches with Interest Periods of greater than three months, on the
date which is three months after the first date of the Interest Period for such
LIBOR Tranche), when required upon prepayment as specified elsewhere in this
Agreement, on any date when such LIBOR Tranche is prepaid in full, and on the
Revolving Loan Maturity Date.
(c) Base Rate Tranches. Each Base Rate Tranche shall bear
interest at a per annum interest rate equal to the Adjusted Base Rate in effect
from time to time plus the Applicable Margin for Base Rate Tranches in effect
from time to time. The Borrower shall pay to the Agent for the ratable benefit
of the Banks all accrued but unpaid interest on outstanding Base Rate Tranches
on the last day of each calendar quarter, when required upon prepayment as
specified elsewhere in this Agreement, on any date all Base Rate Tranches are
prepaid in full, and on the Revolving Loan Maturity Date.
(d) Usury Protection.
(i) If, with respect to any Bank and the Borrower, the
effective rate of interest contracted for by such Bank with the Borrower under
the Credit Documents, including the stated rates of interest contracted for
hereunder and any other amounts contracted for under the Credit Documents which
are deemed to be interest, at any time exceeds the Highest Lawful Rate, then
the outstanding principal amount of the loans made by such Bank to the Borrower
hereunder shall bear interest at a rate which would make the
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effective rate of interest on the loans made by such Bank to the Borrower under
the Credit Documents equal the Highest Lawful Rate until the difference between
the amounts which would have been due by the Borrower to such Bank at the
stated rates and the amounts which were due by the Borrower to such Bank at the
Highest Lawful Rate (the "Lost Interest") has been recaptured by such Bank.
If, when the loans made hereunder are repaid in full, the Lost Interest has not
been fully recaptured by such Bank pursuant to the preceding paragraph, then,
to the extent permitted by law, the interest rates charged by such Bank to the
Borrower hereunder shall be retroactively increased such that the effective
rate of interest on the loans made by such Bank to the Borrower under the
Credit Documents was at the Highest Lawful Rate since the effectiveness of this
Agreement to the extent necessary to recapture the Lost Interest not recaptured
pursuant to the preceding sentence and, to the extent allowed by law, the
Borrower shall pay to such Bank the amount of the Lost Interest remaining to be
recaptured by such Bank.
(ii) In calculating all sums paid or agreed to be paid
to any Bank by the Borrower for the use, forbearance, or detention of money
under the Credit Documents, such amounts shall, to the extent permitted by
applicable law, be amortized, prorated, allocated, and spread in equal parts
throughout the term of the Credit Documents.
(iii) NOTWITHSTANDING THE FOREGOING OR ANY OTHER TERM IN
THIS AGREEMENT AND THE CREDIT DOCUMENTS TO THE CONTRARY, it is the intention of
each Bank and the Borrower to conform strictly to any applicable usury laws.
Accordingly, if any Bank contracts for, charges, or receives any consideration
from the Borrower which constitutes interest in excess of the Highest Lawful
Rate, then any such excess shall be canceled automatically and, if previously
paid, shall at such Bank's option be applied to the outstanding amount of the
loans made hereunder by such Bank to the Borrower or be refunded to the
Borrower.
2.5 Breakage Costs. If (i) any payment of principal on or any
conversion of any LIBOR Tranche is made on any date other than the last day of
the Interest Period for such LIBOR Tranche, whether as a result of any
voluntary or mandatory prepayment, any acceleration of maturity, or any other
cause, (ii) any payment of principal on any LIBOR Tranche is not made when due,
or (iii) any LIBOR Tranche is not borrowed, converted, or prepaid in accordance
with the respective notice thereof provided by the Borrower to the Agent,
whether as a result of any failure to meet any applicable conditions precedent
for borrowing, conversion, or prepayment, the permitted cancellation of any
request for borrowing, conversion, or prepayment, the failure of the Borrower
to provide the respective notice of borrowing, conversion, or prepayment, or
any other cause not specified above which is created by the Borrower, then the
Borrower shall pay to each Bank upon demand any amounts required to compensate
such Bank for any losses, costs, or expenses, including lost profits and
administrative expenses, which are reasonably allocable to such action,
including losses, costs, and expenses related to the liquidation or
redeployment of funds acquired or designated by such Bank to fund or maintain
such Bank's ratable share of such LIBOR
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Tranche or related to the reacquisition or redesignation of funds by such Bank
to fund or maintain such Bank's ratable share of such LIBOR Tranche following
any liquidation or redeployment of such funds caused by such action. Such Bank
need not prove matched funding of any particular funds, and a certificate as to
the amount of such loss, cost, or expense detailing the calculation thereof and
certifying that such Bank customarily charges such amounts to its other
customers in similar circumstances submitted by such Bank to the Borrower shall
be conclusive and binding for all purposes, absent manifest error.
2.6 Increased Costs.
(a) Cost of Funds. If due to either (i) any introduction of,
change in, or change in the interpretation of any law or regulation after the
date of this Agreement or (ii) compliance with any guideline or request from
any central bank or other governmental authority having appropriate
jurisdiction (whether or not having the force of law) given after the date of
this Agreement, there shall be any increase in the costs of any Bank allocable
to (x) committing to make any Revolving Loan Advance or obtaining funds for the
making, funding, or maintaining of such Bank's ratable share of any LIBOR
Tranche in the relevant interbank market or (y) committing to make Letters of
Credit or issuing, funding, or maintaining Letters of Credit (including any
increase in any applicable reserve requirement specified by the Federal Reserve
Board, including those for emergency, marginal, supplemental, or other
reserves), then the Borrower shall pay to such Bank upon demand any amounts
required to compensate such Bank for such increased costs, such amounts being
due and payable upon demand by such Bank. A certificate as to the cause and
amount of such increased cost detailing the calculation of such cost and
certifying that such Bank customarily charges such amounts to its other
customers in similar circumstances submitted by such Bank to the Borrower shall
be conclusive and binding for all purposes, absent manifest error. No Bank may
make any claim for compensation under this Section 2.6(a) for increased costs
incurred before 90 days prior to the delivery of any such certificate. Each
Bank agrees to use commercially reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to designate a different
Applicable Lending Office if the making of such designation would avoid or
reduce the effect of this paragraph and would not, in the reasonable judgment
of the Bank, be otherwise disadvantageous to such Bank.
(b) Capital Adequacy. If, due to either (i) any introduction
of, change in, or change in the interpretation of any law or regulation after
the date of this Agreement or (ii) compliance with any guideline or request
from any central bank or other governmental authority having appropriate
jurisdiction (whether or not having the force of law) given after the date of
this Agreement, there shall be any increase in the capital requirements of any
Bank or its parent or holding company allocable to (x) committing to make
Revolving Loan Advances or making, funding, or maintaining Revolving Loan
Advances or (y) committing to make Letters of Credit or issuing, funding, or
maintaining Letters of Credit, as such capital requirements are allocated by
such Bank, then the Borrower shall pay to such Bank upon demand any amounts
required to compensate such Bank or its parent or holding company for
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such increase in costs (including an amount equal to any reduction in the rate
of return on assets or equity of such Bank or its parent or holding company),
such amounts being due and payable upon demand by such Bank. A certificate as
to the cause and amounts detailing the calculation of such amounts and
certifying that such Bank customarily charges such amounts to its other
customers in similar circumstances submitted by such Bank to the Borrower shall
be conclusive and binding for all purposes, absent manifest error. No Bank may
make any claim for compensation under this Section 2.7(b) for increased costs
incurred before 90 days prior to the delivery of any such certificate.
2.7 Illegality. Notwithstanding any other provision in this
Agreement, if it becomes unlawful for any Bank to obtain deposits or other
funds for making or funding such Bank's ratable share of any LIBOR Tranche in
the relevant interbank market, such Bank shall so notify the Borrower and the
Agent and such Bank's commitment to create LIBOR Tranches shall be suspended
until such condition has passed, all LIBOR Tranches applicable to such Bank
shall be converted to Base Rate Tranches as of the end of each applicable
Interest Period or earlier if necessary, and all subsequent requests for LIBOR
Tranches shall be deemed to be requests for Base Rate Tranches with respect to
such Bank. Each Bank agrees to use commercially reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions) to designate a
different Applicable Lending Office if the making of such designation would
avoid or reduce the effect of this paragraph and would not, in the reasonable
judgment of the Bank, be otherwise disadvantageous to such Bank.
2.8 Market Failure. Notwithstanding any other provision in this
Agreement, if the Agent determines that: (a) quotations of interest rates for
the relevant deposits referred to in the definition of "LIBOR" are not being
provided in the relevant amounts, or maturities for purposes of determining the
rate of interest referred to in the definition of "LIBOR" or (b) the relevant
rates of interest referred to in the definition of "LIBOR" which are used as
the basis to determine the rate of interest for LIBOR Tranches are not likely
to adequately cover the cost to any Bank of making or maintaining such Bank's
ratable share of any LIBOR Tranche, then if the Agent so notifies the Borrower,
the Agent and the Banks' commitment to create LIBOR Tranches shall be suspended
until such condition has passed, all LIBOR Tranches shall be converted to Base
Rate Tranches as of the end of each applicable Interest Period or earlier if
necessary, and all subsequent requests for LIBOR Tranches shall be deemed to be
requests for Base Rate Tranches.
2.9 Payment Procedures and Computations.
(a) Payment Procedures. Time is of the essence in this
Agreement and the Credit Documents. All payment hereunder shall be made in
Dollars. The Borrower shall make each payment under this Agreement and under
the Revolving Loan Notes not later than 12:00 noon (local time at the
Applicable Lending Office of the Agent) on the day when due to the Agent at the
Agent's Applicable Lending Office in immediately available funds. All payments
by the Borrower hereunder shall be made without any offset, abatement,
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withholding, or reduction. Upon receipt of payment from the Borrower of any
principal, interest, or fees due to the Banks, the Agent shall promptly after
receipt thereof distribute to the Banks their ratable share of such payments
for the account of their respective Applicable Lending Offices. If and to the
extent that the Agent shall not have so distributed to any Bank its ratable
share of such payments, the Agent agrees that it shall pay interest on such
amount for each day after the day when such amount is made available to the
Agent by the Borrower until the date such amount is paid to such Bank by the
Agent at the Federal Funds Rate in effect from time to time, provided that if
such amount is not paid by the Agent by the end of the third day after the
Borrower makes such amount available to the Agent, the interest rates specified
above shall be increased by a per annum amount equal to 2.00% on the fourth day
and shall remain at such increased rate thereafter. Interest on such amount
shall be due and payable by the Agent upon demand by such Bank. Upon receipt
of other amounts due solely to the Agent, the Issuing Bank, or a specific Bank,
the Agent shall distribute such amounts to the appropriate party to be applied
in accordance with the terms of this Agreement.
(b) Agent Reliance. Unless the Agent shall have received
written notice from the Borrower prior to any date on which any payment is due
to the Banks that the Borrower shall not make such payment in full, the Agent
may assume that the Borrower has made such payment in full to the Agent on such
date and the Agent may, in reliance upon such assumption, cause to be
distributed to each Bank on such date an amount equal to the amount then due
such Bank. If and to the extent the Borrower shall not have so made such
payment in full to the Agent, each Bank shall repay to the Agent forthwith on
demand such amount distributed to such Bank, together with interest thereon
from the date such amount is distributed to such Bank until the date such Bank
repays such amount to the Agent, at an interest rate equal to, the Federal
Funds Rate in effect from time to time, provided that with respect to such
Bank, if such amount is not repaid by such Bank by the end of the second day
after the date of the Agent's demand, the interest rates specified above shall
be increased by a per annum amount equal to 2.00% on the third day after the
date of the Agent's demand and shall remain at such increased rate thereafter.
(c) Sharing of Payments. Each Bank agrees that if it should
receive any payment (whether by voluntary payment, by realization upon
security, by the exercise of the right of setoff or banker's lien, by
counterclaim or cross action, by the enforcement of any right under the Credit
Documents, or otherwise) in respect of any obligation of the Borrower to pay
principal, interest, fees, or any other obligation incurred under the Credit
Documents in a proportion greater than the total amount of such principal,
interest, fees, or other obligation then owed and due by the Borrower to such
Bank bears to the total amount of principal, interest, fees, or other
obligation then owed and due by the Borrower to all of the Banks immediately
prior to such receipt, then such Bank receiving such excess payment shall
purchase for cash without recourse from the other Banks an interest in the
obligations of the Borrower to such Banks in such amount as shall result in a
participation by all of the Banks, in proportion with the Banks' respective pro
rata shares, in the aggregate unpaid amount of principal, interest, fees, or
any such other obligation, as the case may be, owed by the
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Borrower to all of the Banks; provided that if all or any portion of such
excess payment is thereafter recovered from such Bank, such purchase shall be
rescinded and the purchase price restored to the extent of such recovery, in
proportion with the Banks' respective pro rata shares, but without interest.
(d) Authority to Charge Accounts. The Agent, if and to the
extent payment owed to the Agent or any Bank is not made when due, may charge
from time to time against any account of the Borrower with the Agent any amount
so due. The Agent agrees promptly to notify the Borrower after any such charge
and application made by the Agent provided that the failure to give such notice
shall not affect the validity of such charge and application.
(e) Interest and Fees. Unless expressly provided for in this
Agreement, (i) all computations of interest based on the Prime Rate (including
the Adjusted Base Rate, when applicable) shall be made on the basis of a
365/366 day year, as the case may be, (ii) all computations of interest based
on the Federal Funds Rate (including the Adjusted Base Rate, when applicable)
shall be made on the basis of a 360 day year, (iii) all computations of
interest based upon the LIBOR shall be made on the basis of a 360 day year, and
(iv) all computations of fees shall be made on the basis of a 360 day year, in
each case for the actual number of days (including the first day, but excluding
the last day) occurring in the period for which such interest or fees are
payable. Each determination by the Agent of an interest rate or fee shall be
conclusive and binding for all purposes, absent manifest error.
(f) Payment Dates. Whenever any payment shall be stated to be
due on a day other than a Business Day, such payment shall be made on the next
succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or fees, as the case may be.
If the time for payment for an amount payable is not specified in this
Agreement or in any other Credit Document, the payment shall be due and payable
on demand by the Agent or the applicable Bank.
2.10 Taxes.
(a) No Deduction for Certain Taxes. Any and all payments by
the Borrower shall be made free and clear of and without deduction for any and
all present or future taxes, levies, imposts, deductions, charges, or
withholdings, and all liabilities with respect thereto, other than taxes
imposed on the income and franchise taxes imposed on the Agent, any Bank, or
the Applicable Lending Office thereof by any jurisdiction in which any such
entity is a citizen or resident or any political subdivision of such
jurisdiction (all such nonexcluded taxes, levies, imposts, deductions, charges,
withholdings, and liabilities being hereinafter referred to as "Taxes"). If
the Borrower shall be required by law to deduct any Taxes from or in respect of
any sum payable to the Agent, any Bank, or the Applicable Lending Office
thereof, (i) the sum payable shall be increased as may be necessary so that,
after making all required deductions (including deductions applicable to
additional sums
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payable under this Section 2.10), such Person receives an amount equal to the
sum it would have received had no such deductions been made; (ii) the Borrower
shall make such deductions; and (iii) the Borrower shall pay the full amount
deducted to the relevant taxation authority or other authority in accordance
with applicable law.
(b) Other Taxes. The Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes,
charges, or similar levies which arise from any payment made or from the
execution, delivery, or registration of, or otherwise with respect to, this
Agreement or the other Credit Documents (other than those which become due as a
result of any Bank joining this Agreement as a result of any Assignment and
Acceptance, which shall be paid by the Bank which becomes a Bank hereunder as a
result of such Assignment and Acceptance).
(c) Foreign Bank Withholding Exemption. Each Bank and Issuing
Bank that is not incorporated under the laws of the United States of America or
a state thereof agrees that it shall deliver to the Borrower and the Agent (i)
two duly completed copies of United States Internal Revenue Service Form 1001
or 4224 or successor applicable form, as the case may be, certifying in each
case that such Bank is entitled to receive payments under this Agreement and
the Revolving Loan Notes payable to it, without deduction or withholding of any
United States federal income taxes, (ii) if applicable, an Internal Revenue
Service Form W-8 or W-9 or successor applicable form, as the case may be, to
establish an exemption from United States backup withholding tax, and (iii) any
other governmental forms which are necessary or required under an applicable
tax treaty or otherwise by law to reduce or eliminate any withholding tax,
which have been reasonably requested by the Borrower. Each Bank which delivers
to the Borrower and the Agent a Form 1001 or 4224 and Form W-8 or W-9 pursuant
to the next preceding sentence further undertakes to deliver to the Borrower
and the Agent two further copies of the said letter and Form 1001 or 4224 and
Form W-8 or W-9, or successor applicable forms, or other manner of
certification, as the case may be, on or before the date that any such letter
or form expires or becomes obsolete or after the occurrence of any event
requiring a change in the most recent letter and form previously delivered by
it to the Borrower and the Agent, and such extensions or renewals thereof as
may reasonably be requested by the Borrower and the Agent certifying in the
case of a Form 1001 or 4224 that such Bank is entitled to receive payments
under this Agreement without deduction or withholding of any United States
federal income taxes. If an event (including without limitation any change in
treaty, law or regulation) has occurred prior to the date on which any delivery
required by the preceding sentence would otherwise be required which renders
all such forms inapplicable or which would prevent any Bank from duly
completing and delivering any such letter or form with respect to it and such
Bank advises the Borrower and the Agent that it is not capable of receiving
payments without any deduction or withholding of United States federal income
tax, and in the case of a Form W-8 or W-9, establishing an exemption from
United States backup withholding tax, such Bank shall not be required to
deliver such letter or forms. The Borrower shall withhold tax at the rate and
in the manner required by the laws of the United States with respect to
payments made to a
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Bank failing to provide the requisite Internal Revenue Service forms in a
timely manner. Each Bank which fails to provide to the Borrower in a timely
manner such forms shall reimburse the Borrower upon demand for any penalties
paid by the Borrower as a result of any failure of the Borrower to withhold the
required amounts that are caused by such Bank's failure to provide the required
forms in a timely manner.
2.11 Replacement of Bank in Event of Adverse Condition. In the event
the Borrower becomes obligated to pay additional amounts to any Bank pursuant
to Section 2.06 or Section 2.10 as a result of any condition described in
either Section, then, unless such Bank has theretofore taken steps to remove or
cure, and has removed or cured, the conditions creating the cause for such
obligation to pay such additional amounts, the Borrower may (i) designate
another bank which is reasonably acceptable to the Agent (such bank being
herein called a "Replacement Bank") to purchase the Notes of such Bank and such
Bank's rights hereunder, without recourse to or warranty by, or expense to,
such Bank for a purchase price equal to the outstanding principal amount of the
Notes payable to such Bank plus any accrued but unpaid interest on such Notes
and accrued but unpaid Commitment Fees in respect of that Bank's Commitment,
and any breakage costs incurred by such Bank as a result of the replacement,
and such other administrative costs as are incurred by the Bank as the result
of such replacement, and upon such purchase, such Bank shall no longer be a
party hereto or have any rights or obligations hereunder, other than those that
expressly survive the termination of this Agreement, and the Replacement Bank
shall succeed to the rights and obligations of such Bank hereunder.
ARTICLE 3. CONDITIONS PRECEDENT.
3.1 Conditions Precedent to Initial Extensions of Credit. The
obligation of each Bank to make the initial extension of credit under this
Agreement, including the making of any Revolving Loan Advances, and the
issuance of any Letters of Credit, shall be subject to the following conditions
precedent:
(a) Documents. The Borrower shall have delivered or shall
have caused to be delivered the documents and other items listed on Exhibit F,
together with any other documents reasonably requested by the Agent to document
the agreements and intent of the Credit Documents, each in form and with
substance satisfactory to the Agent.
(b) Due Diligence. The Banks shall have completed and be
satisfied with due diligence with respect to the Restricted Entities, BRC, and
TSG, including due diligence regarding (i) executives and directors,
litigation, tax, accounting, labor, insurance, and pension matters, (ii) real
estate leases, debt agreements, and property ownership rights, and (iii) such
other matters as the Banks deem appropriate.
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(c) Financial Statements.
(i) The Borrower shall have delivered to the Agent a
copy of each annual audit report of the Borrower for fiscal years 1994, 1995,
and 1996, including therein the consolidated balance sheets of the Borrower as
of the applicable fiscal year end and the consolidated statements of income,
stockholders' equity, and cash flows for the Borrower for such fiscal year,
setting forth the consolidated financial position and results of the Borrower
for such fiscal year, prepared in accordance with generally accepted accounting
principles consistently applied, and certified, without any qualification or
limitation of the scope of the examination of matters relevant to the financial
statements, by a nationally recognized certified public accounting firm.
(ii) The Borrower shall have delivered to the Agent a
copy of each audit report of BRC for fiscal years 1995 and 1996, including
therein the consolidated balance sheets of BRC as of the applicable periods and
the consolidated statements of income, stockholders' equity, and cash flows for
BRC for such periods, setting forth the financial position and results of BRC
for such periods, prepared in accordance with generally accepted accounting
principles consistently applied, and certified, without any qualification or
limitation of the scope of the examination of matters relevant to the financial
statements, by a nationally recognized certified public accounting firm. The
Borrower also shall have delivered to the Agent copies of the most recent
Interim Financial Statements of BRC.
(iii) The Borrower shall have delivered to the Agent a
copy of each audit report of TSG for fiscal years 1995, 1996, and 1997,
including therein the consolidated balance sheets of TSG as of the applicable
periods and the consolidated statements of income, stockholders' equity, and
cash flows for TSG for such periods, setting forth the financial position and
results of TSG for such periods, prepared in accordance with generally accepted
accounting principles consistently applied, and certified, without any
qualification or limitation of the scope of the examination of matters relevant
to the financial statements, by a nationally recognized certified public
accounting firm.
(iv) The Borrower shall have delivered a copy of the
projected financial statements of the Borrower, including BRC and TSG, for
fiscal years 1997, 1998, 1999, 2000, and 2001.
(d) BRC and TSG Acquisition. The Borrower shall have
delivered to the Agent and the Agent shall have approved the purchase
agreements and other material documents regarding the acquisition of BRC and
TSG, including Approval of the financing, liability, and transaction structure
set forth therein. The Borrower shall have closed or, contemporaneously with
the funding of the initial extension of credit under this Agreement, will close
the Acquisition of BRC and TSG.
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(e) Material Adverse Change. No Material Adverse Change shall
have occurred since September 30, 1997. No material adverse change shall have
occurred (i) with respect to BRC since September 30, 1997, and (ii) with
respect to TSG since October 31, 1997.
(f) TPI and Swan Report. The Borrower shall have delivered
to the Agent, and the Agent shall have approved a written report with respect
to TPI and Swan disclosing all material contingent obligations of or
liabilities of any sort of either TPI or Swan, including without limitation (i)
the financial condition of each, (ii) suits, claims, actions or proceedings
pending or to the Borrower's knowledge threatened against either, (iii) failure
of either or both to comply by either with any federal, state, or local law,
which failure could reasonably be expected to cause a material adverse change,
and (iv) any failure of either or both to comply with any Environmental Laws
where such failure could reasonably be expected to cause a material adverse
change.
3.2 Conditions Precedent to Each Extension of Credit. The obligation
of each Bank to make any extension of credit under this Agreement, including
the making of any Revolving Loan Advances, and the issuance, increase, or
extension of any Letters of Credit, shall be subject to the further conditions
precedent that on the date of such extension of credit:
(a) Representations and Warranties. As of the date of the
making of any extension of credit hereunder, the representations and warranties
contained in each Credit Document shall be true and correct in all material
respects as of such date (and the Borrower's request for the making of any
extension of credit hereunder shall be deemed to be a restatement,
representation, and additional warranty of the representations and warranties
contained in each Credit Document as of such date); and
(b) Default. As of the date of the making of any extension of
credit hereunder, there shall exist no Default or Event of Default, and the
making of the extension of credit would not cause or be reasonably expected to
cause a Default or Event of Default.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES. The Borrower represents and
warrants to the Agent and each Bank, and with each request for any extension of
credit hereunder, including the making of any Revolving Loan Advances, and the
issuance, increase, or extension of any Letters of Credit, again represents and
warrants to the Agent and each Bank, as follows:
4.1 Organization. As of the date of this Agreement, each Restricted
Entity (a) is duly organized, validly existing, and in good standing under the
laws of such Person's respective jurisdiction of organization and (b) is duly
licensed, qualified to do business, and in good standing in each jurisdiction
in which such Person is organized, owns property, or conducts operations to the
extent that any failure to be so licensed, qualified, or in good
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standing in accordance with this clause (b) could reasonably be expected to
cause a Material Adverse Change.
4.2 Authorization. The execution, delivery, and performance by each
Credit Party of the Credit Documents to which such Credit Party is a party and
the consummation of the transactions contemplated thereby (a) do not contravene
the organizational documents of such Credit Party, (b) have been duly
authorized by all necessary corporate action of each Credit Party, and (c) are
within each Credit Party's corporate powers.
4.3 Enforceability. Each Credit Document to which any Credit Party
is a party has been duly executed and delivered by each Credit Party which is a
party to such Credit Document and constitutes the legal, valid, and binding
obligation of each such Credit Party, enforceable against each such Credit
Party in accordance with such Credit Document's terms, except as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws
at the time in effect affecting the rights of creditors generally and subject
to the availability of equitable remedies.
4.4 Absence of Conflicts and Approvals. The execution, delivery,
and performance by each Credit Party of the Credit Documents to which such
Credit Party is a party and the consummation of the transactions contemplated
thereby, (a) do not result in any violation or breach of any provisions of, or
constitute a default under, any note, indenture, credit agreement, security
agreement, credit support agreement, or other similar agreement to which such
Credit Party is a party or any other material contract or agreement to which
such Credit Party is a party, (b) do not violate any law or regulation binding
on or affecting such Credit Party, (c) do not require any authorization,
approval, or other action by, or any notice to or filing with, any governmental
authority, and (d) do not result in or require the creation or imposition of
any Lien prohibited by this Agreement.
4.5 Investment Companies. No Restricted Entity or Affiliate thereof
is an "investment company" or a company "controlled" by an "investment company"
within the meaning of the Investment Company Act of 1940, as amended.
4.6 Public Utilities. No Restricted Entity or Affiliate thereof is a
"holding company," or a "subsidiary company" of a "holding company," or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company," within the meaning of the Public Utility Holding Company Act of 1935,
as amended. No Restricted Entity or Affiliate thereof is a regulated public
utility.
4.7 Financial Condition.
(a) The Borrower has delivered to the Agent the Financial
Statements and Interim Financial Statements, and the Financial Statements and
Interim Financial Statements are accurate and complete in all material respects
and present fairly the financial condition of
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Borrower, BRC, and TSG, respectively, as of their respective dates and for
their periods in accordance with generally accepted accounting principles.
(b) As of the respective dates of the Interim Financial
Statements and the Financial Statement of TSG, there were no material
contingent obligations, liabilities for taxes, unusual forward or long-term
commitments, or unrealized or anticipated losses of the Borrower, BRC, and TSG,
respectively, or any of the Borrower's, BRC's, or TSG's respective
Subsidiaries, except as (i) disclosed therein and adequate reserves for such
items have been made in accordance with generally accepted accounting
principles, or (ii) with respect to TPI and Swan, have been disclosed in a
written report furnished by the Borrower to the Banks prior to the funding of
the initial extension of credit under this Agreement. No Material Adverse
Change has occurred since the respective dates of the Interim Financial
Statements and the Financial Statement of TSG. No Default exists.
4.8 Condition of Assets. Each Restricted Entity has good and
indefeasible title to substantially all of its owned property and valid
leasehold rights in all of its leased property, as reflected in the financial
statements most recently provided to the Agent free and clear of all Liens
except Permitted Liens. Each Restricted Entity possesses and has properly
approved, recorded, and filed, where applicable, all permits, licenses,
patents, patent rights or licenses, trademarks, trademark rights, trade names
rights, and copyrights which are useful in the conduct of its business and
which the failure to possess could reasonably be expected to cause a Material
Adverse Change. The material properties used or to be used in the continuing
operations of each Restricted Entity are in good repair, working order, and
condition, normal wear and tear excepted. The properties of each Restricted
Entity have not been adversely affected as a result of any fire, explosion,
earthquake, flood, drought, windstorm, accident, strike or other labor
disturbance, embargo, requisition or taking of property or cancellation of
contracts, permits, or concessions by a governmental authority, riot,
activities of armed forces, or acts of God or of any public enemy in any manner
which (after giving effect to any insurance proceeds) could reasonably be
expected to cause a Material Adverse Change.
4.9 Litigation. There are no actions, suits, or proceedings pending
or, to the knowledge of the Borrower, threatened against any Restricted Entity
at law, in equity, or in admiralty, or by or before any governmental
department, commission, board, bureau, agency, instrumentality, domestic or
foreign, or any arbitrator which could reasonably be expected to cause a
Material Adverse Change except, with respect to TPI and Swan, those that have
been disclosed in a written report furnished by the Borrower to the Banks prior
to the funding of the initial extension of credit under this Agreement.
4.10 Subsidiaries. As of the date of this Agreement, the Borrower has
no Subsidiaries except as disclosed in Schedule II. The Borrower has no
Subsidiaries which have not been disclosed in writing to the Agent.
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<PAGE> 41
4.11 Laws and Regulations. Each Restricted Entity has been and is in
compliance with all federal, state, and local laws and regulations which are
applicable to the operations and property of such Person where the failure to
comply with the same could reasonably be expected to cause a Material Adverse
Change except, with respect to TPI and Swan, those that have been disclosed in
a written report furnished by the Borrower to the Banks prior to the funding of
the initial extension of credit under this Agreement.
4.12 Environmental Compliance. Each Restricted Entity has been and is
in compliance with all Environmental Laws and has obtained and is in compliance
with all related permits necessary for the ownership and operation of any such
Person's properties where the failure to be in compliance with the same could
reasonably be expected to cause a Material Adverse Change. Each Restricted
Entity has not received notice of and has not been investigated for any
violation or alleged violation of any Environmental Law in connection with any
such Person's presently or previously owned properties which currently threaten
action or suggest liabilities which could reasonably be expected to cause a
Material Adverse Change. Each Restricted Entity does not and has not created,
handled, transported, used, or disposed of any Hazardous Materials on or about
any such Person's properties (nor has any such Person's properties been used
for those purposes); has never been responsible for the release of any
Hazardous Materials into the environment in connection with any such Person's
operations and has not contaminated any properties with Hazardous Materials;
and does not and has not owned any properties contaminated by any Hazardous
Materials, in each case in any manner which could reasonably be expected to
cause a Material Adverse Change except, with respect to TPI and Swan, those
that have been disclosed in a written report furnished by the Borrower to the
Banks prior to the funding of the initial extension of credit under this
Agreement.
4.13 ERISA. Each Restricted Entity and each of their respective
Commonly Controlled Entities are in compliance with all provisions of ERISA to
the extent that the failure to be in compliance could reasonably be expected to
cause a Material Adverse Change. No Restricted Entity nor any of their
respective Commonly Controlled Entities participates in or during the past five
years has participated in any employee pension benefit plan covered by Title IV
of ERISA or any multiemployer plan under Section 4001(a)(3) of ERISA. With
respect to the Plans of the Restricted Entities, no Material Reportable Event
or Prohibited Transaction has occurred and exists that could reasonably be
expected to cause a Material Adverse Change.
4.14 Taxes. Each Restricted Entity has filed all United States
federal, state, and local income tax returns and all other domestic and foreign
tax returns which are required to be filed by such Person and has paid, or
provided for the payment before the same became delinquent of, all taxes due
pursuant to such returns or pursuant to any assessment received by such Person
except for tax payments being contested in good faith for which adequate
reserves have been established and reported in accordance with generally
accepted accounting principles which could not reasonably be expected to cause
a Material Adverse Change. The
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charges, accruals, and reserves on the books of the Restricted Entities in
respect of taxes are adequate in accordance with generally accepted accounting
principles.
4.15 True and Complete Disclosure. All factual information furnished
by or on behalf of any Credit Party in writing to the Agent or any Bank in
connection with the Credit Documents and the transactions contemplated thereby
is true and accurate in all material respects on the date as of which such
information was dated or certified and does not contain any untrue statement of
material fact or omit to state any material fact necessary to make the
statements contained therein not misleading. All projections, estimates, and
pro forma financial information furnished by any Credit Party were prepared on
the basis of assumptions, data, information, tests, or conditions believed to
be reasonable at the time such projections, estimates, and pro forma financial
information were furnished.
ARTICLE 5. COVENANTS. Until the Agent and the Banks receive irrevocable
payment of the Credit Obligations and have terminated this Agreement and each
other Credit Document, the Borrower shall comply with and cause compliance with
the following covenants:
5.1 Organization. The Borrower shall cause each Restricted Entity to
(a) maintain itself as an entity duly organized, validly existing, and in good
standing under the laws of such Person's respective jurisdiction of
organization and (b) be duly licensed, qualified to do business, and in good
standing in each jurisdiction in which such Person is organized, owns property,
or conducts operations and which requires such licensing or qualification where
failure to be so licensed, qualified, or in good standing as required by this
clause (b) could reasonably be expected to cause a Material Adverse Change;
provided, however, that nothing in this Section 5.1 shall be interpreted to be
violated as a result of a transaction permitted by Section 5.9.
5.2 Reporting. The Borrower shall furnish to the Agent all of the
following:
(a) Annual Reports. As soon as available and in any event not
later than 90 days after the end of each fiscal year of the Borrower, (i) a
copy of the annual audit report for such fiscal year for the Borrower,
including therein the consolidated balance sheets of the Borrower as of the end
of such fiscal year and the consolidated statements of income, stockholders'
equity, and cash flows for the Borrower for such fiscal year, setting forth the
consolidated financial position and results of the Borrower for such fiscal
year and certified, without any qualification or limitation of the scope of the
examination of matters relevant to the financial statements, by a nationally
recognized certified public accounting firm, (ii) a copy of the internally
prepared consolidating financial schedules of the Borrower from which the
consolidated financial statements of the Borrower provided to the Agent
pursuant to clause (i) were prepared, (iii) a completed Compliance Certificate
duly certified by a Responsible Officer of the Borrower, and (iv) to the extent
required by the Borrower, an Acquisition EBITDA Certificate;
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(b) Quarterly Reports. As soon as available and in any event
not later than 45 days after the end of each of the first three fiscal quarters
during any fiscal year, (i) a copy of the internally prepared consolidated
financial statements of the Borrower for such fiscal quarter and for the fiscal
year to date period ending on the last day of such fiscal quarter, including
therein the consolidated balance sheets of the Borrower as of the end of such
fiscal quarter and the consolidated statements of income, and cash flows for
such fiscal quarter and for such fiscal year to date period, setting forth the
consolidated financial position and results of the Borrower for such fiscal
quarter and fiscal year to date period, all in reasonable detail and duly
certified by a Responsible Officer of the Borrower as having been prepared in
accordance with generally accepted accounting principles (subject to normal
year-end audit adjustments), (ii) a copy of the internally prepared
consolidating financial schedules of the Borrower from which the consolidated
financial statements of Borrower provided to the Agent pursuant to clause (i)
were prepared, (iii) a completed Compliance Certificate duly certified by a
Responsible Officer of the Borrower, (iv) an environmental report on Jersey-
Tyler Foundry facility operated by Jersey-Tyler Foundry Company between 1969
and 1977, which report shall supplement the report required pursuant to Section
3.1(f) and be satisfactory to the Agent in form, and (v) to the extent required
by the Borrower, an Acquisition EBITDA Certificate;
(c) Acquisition Information. As soon as available prior to
the closing of any Acquisition for which the aggregate, non-equity purchase
price exceeds $5,000,000 but in any event at least 21 days prior to the closing
of the Acquisition, (i) financial statements for the acquired assets for the
two most recently completed fiscal years, including complete income and cash
flow reports, prepared by an independent certified public accountant in
accordance with generally accepted accounting principles consistently applied;
(ii) projected cash flow reports for the acquired assets for the succeeding
four fiscal quarters, adjusted for known changes (detail provided); (iii) (A)
proforma consolidated historical financial statements for the most recently
ended four fiscal quarters of the Borrower reflecting the proforma consolidated
results and status of the Borrower as if such Acquisition had occurred prior to
the beginning of such period and (B) a revised Compliance Certificate
reflecting such proforma information, in each case prepared in accordance with
the requirements of Section 1.3(c) regarding proforma historical financial
information to reflect the consolidated status and results of the Borrower as
if such Acquisition had occurred prior to the beginning of the applicable
period and (iv) the acquisition documents regarding the acquired assets,
including schedules reflecting litigation liabilities, environmental
liabilities, and other assumed liabilities, and any other information regarding
the acquired assets as the Agent may reasonably request.
(d) SEC Filings. As soon as available and in any event not
later than thirty days after the filing or delivery thereof, copies of all
financial statements, reports, and proxy statements which the Borrower shall
have sent to its stockholders generally and copies of all regular and periodic
reports, if any, which any Restricted Entity shall have filed with the
Securities and Exchange Commission;
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(e) Defaults. Promptly, but in any event within five Business
Days after the discovery thereof, a notice of any facts known to any Restricted
Entity which constitute a Default, together with a statement of a Responsible
Officer of the Borrower setting forth the details of such facts and the actions
which the Borrower has taken and proposes to take with respect thereto (and the
Agent shall, promptly upon receipt from the Borrower of a notice pursuant to
this Section 5.2(e), forward a copy of such notice to each Bank);
(f) Litigation. Promptly, but in any event within 10 Business
Days after the commencement thereof, notice of all actions, suits, and
proceedings before any court or governmental department, commission, board,
bureau, agency, or instrumentality, domestic or foreign, affecting any
Restricted Entity which, if determined adversely, could reasonably be expected
to cause a Material Adverse Change or any loss greater than $500,000;
(g) Material Contingent Liabilities. Promptly, but in any
event within 10 Business Days after acquiring knowledge thereof, notice of any
contingent liabilities which could reasonably be expected to cause a Material
Adverse Change or any contingent liability greater than $500,000;
(h) Material Agreement Default. Promptly, but in any event
within 10 Business Days after obtaining knowledge thereof, notice of any
breach by any Restricted Entity of any contract or agreement which breach
could reasonably be expected to cause a Material Adverse Change;
(i) Material Changes. Prompt written notice of any other
condition or event of which any Restricted Entity has knowledge, which
condition or event has resulted or could reasonably be expected to cause a
Material Adverse Change; and
(j) Other Information. Such other information respecting the
business operations or property of any Restricted Entity, financial or
otherwise, as the Agent or the Majority Banks may from time to time reasonably
request.
5.3 Inspection. The Borrower shall cause each Restricted Entity to
permit the Agent and the Banks to visit and inspect any of the properties of
such Restricted Entity, to examine all of such Person's books of account,
records, reports, and other papers, to make copies and extracts therefrom, and
to discuss their respective affairs, finances, and accounts with their
respective officers, employees, and independent public accountants all at such
reasonable times and as often as may be reasonably requested provided that the
Borrower is given at least one Business Day advance notice thereof and
reasonable opportunity to be present when independent public accountants or
other third parties are contacted.
5.4 Use of Proceeds. The proceeds of the Revolving Loan Borrowings
shall be used by the Borrower for Acquisitions, working capital needs,
refinancing existing indebtedness, Capital Expenditures, and for other lawful
corporate purposes. The Borrower
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shall not, directly or indirectly, use any part of such proceeds for any
purpose which violates, or is inconsistent with, Regulations G, T, U, or X of
the Board of Governors of the Federal Reserve System.
5.5 Financial Covenants. The Agent shall determine compliance with
the following financial covenants based upon the most recent Compliance
Certificate delivered to the Agent pursuant to Section 5.2(a) or Section
5.2(b).
(a) Net Worth. The Borrower shall not permit the consolidated
Net Worth of the Borrower as of the last day of each fiscal quarter to be less
than the sum of (i) 90% of the consolidated Net Worth of the Borrower as of
December 31, 1997, plus (ii) 50% of the quarterly consolidated net income of
the Borrower for each fiscal quarter ending after such date during which the
Borrower has positive consolidated net earnings; plus (iii) 100% of the net
proceeds resulting from any sale or issuance of any stock of the Borrower or
its Subsidiaries since December 31, 1997, plus (iv) to the extent that the
required consolidated Net Worth under this Section 5.5(a) was not increased in
clauses (i) through (iii) above as a result of any Acquisition, 100% of any
increase in the consolidated Net Worth of the Borrower resulting from any
Acquisition.
(b) Debt Ratio. As of the last day of each fiscal quarter of
the Borrower, the Borrower shall not permit the ratio of (i) the consolidated
Debt of the Borrower as of end of the fiscal quarter then most recently ended
to (ii) the consolidated EBITDA of the Borrower for the four fiscal quarters
then most recently ended, to be greater than 3.00 to 1.00. If any Compliance
Certificate presented by the Borrower does not fully reflect the EBITDA effects
of any Acquisition that has occurred prior to the end of the applicable period
covered by such Compliance Certificate, and if the addition of the EBITDA of
such Acquisition was expressly approved in writing by the Majority Banks for
use in determining the above ratio, then the Borrower may supplement such
Compliance Certificate with an Acquisition EBITDA Certificate provided to the
Agent with such Compliance Certificate, and the Agent shall determine the above
ratio using the proforma historical consolidated EBITDA of the Borrower and the
Acquisition set forth in the Acquisition EBITDA Certificate.
(c) Fixed Charge Coverage Ratio. As of the last day of each
fiscal quarter, the Borrower shall not permit the ratio of (i) the consolidated
EBITDA of the Borrower for the preceding four fiscal quarters then ended less
the consolidated tax expense of the Borrower during such period and less the
consolidated Capital Expenditures of the Borrower during such period to (ii)
the consolidated scheduled principal payments on long-term debt of the Borrower
during such period plus the consolidated interest expense of the Borrower
during such period (including the interest component of Capital Leases, but
excluding any net effect of interest income) plus capitalized interest during
such period plus the consolidated cash dividends paid by the Borrower during
such period, to be less than the amounts set forth in the table below during
the corresponding periods set forth in the table below.
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<PAGE> 46
<TABLE>
<CAPTION>
Period Minimum Ratio
- ------ -------------
<S> <C>
Prior to and including March 31, 1998 1.75 to 1.00
From April 1, 1998 to June 30, 1998 2.00 to 1.00
From July 1, 1998 and thereafter 2.25 to 1.00
</TABLE>
5.6 Debt.
(a) The Borrower shall not permit any Restricted Entity to
create, assume, incur, suffer to exist, or in any manner become liable,
directly, indirectly, or contingently in respect of, any Debt other than
Permitted Debt.
(b) The Borrower shall not permit any Restricted Entity to
make any payment on or with respect to, or purchase, redeem, defease, or
otherwise acquire or retire for value any amount of any Permitted Debt
permitted pursuant to clause (b) of the definition of "Permitted Debt" prior to
the stated due dates or maturities thereof. The Borrower shall not amend,
supplement, or otherwise modify any of the terms or conditions of any such
Permitted Debt (other than any such amendment, supplement, or modification
which would extend the maturities of or reduce the amounts of any payments of
principal, interest, fees, or other amounts, any modification which would
render the terms of such Permitted Debt less restrictive, or any non-material
administrative amendment which imposes no new restrictions).
5.7 Liens.
(a) The Borrower shall not permit any Restricted Entity to
create, assume, incur, or suffer to exist any Lien on any of its real or
personal property whether now owned or hereafter acquired, or assign any right
to receive its income, except for Permitted Liens.
(b) Other than Permitted Liens, the Borrower shall not permit
any Restricted Entity to be party to any agreement restricting the right of any
Restricted Entity to pledge its assets to secure the Credit Obligations.
5.8 Other Obligations.
(a) The Borrower shall not permit any Restricted Entity to
create, incur, assume, or suffer to exist any obligations in respect of
unfunded vested benefits under any pension Plan or deferred compensation
agreement.
(b) The Borrower shall not permit any Restricted Entity to
create, incur, assume, or suffer to exist any obligations in respect of
Derivatives, other than Derivatives used by any Restricted Entity in such
Restricted Entity's respective business operations in aggregate notional
quantities not to exceed the reasonably anticipated consumption of such
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Restricted Entity of the underlying commodity for the relevant period, but no
Derivatives which are speculative in nature.
5.9 Corporate Transactions. The Borrower shall not, without the
Agent's consent, permit any Restricted Entity to (a) merge, consolidate, or
amalgamate with another Person, or liquidate, wind up, or dissolve itself (or
take any action towards any of the foregoing), (b) convey, sell, lease, assign,
transfer, or otherwise dispose of any of its property, businesses, or other
assets outside of the ordinary course of business, or (c) make any Acquisition
except that:
(i) Any Subsidiary of the Borrower may merge, consolidate, or
amalgamate into any wholly owned Subsidiary of the Borrower or convey,
sell, lease, assign, transfer, or otherwise dispose of any of its assets
to any wholly-owned Subsidiary of the Borrower (and if such disposition
transfers all or substantially all of the assets of transferring
Subsidiary, such subsidiary may then liquidate, wind up, or dissolve
itself); provided that the wholly-owned Subsidiary is the surviving or
acquiring Subsidiary;
(ii) Any Subsidiary of the Borrower may merge, consolidate, or
amalgamate with another Person with the other Person as the surviving
entity or convey, sell, lease, assign, transfer, or otherwise dispose of
any of its assets to another Person (and if such disposition transfers
all or substantially all of the assets of transferring Subsidiary, such
Subsidiary may then liquidate, wind up, or dissolve itself) provided
that the result of such transaction would not cause the net book value
of the assets of the Restricted Entities so merged out of the
Subsidiaries of the Borrower or disposed of during any fiscal year of
the Borrower to exceed 5.00% of the consolidated proforma net book value
of the Borrower as of the end of the prior fiscal year of the Borrower
(taking into account the effect of any Acquisitions since that date);
and
(iii) Any Subsidiary of the Borrower may make any Acquisition
(by purchase or merger) provided that (A) the Subsidiary of the Borrower
is the acquiring or surviving entity, (B) the aggregate non-equity
consideration paid by the Restricted Entities in connection with any
single Acquisition does not exceed $10,000,000, (C) the aggregate non-
equity consideration paid by the Restricted Entities in connection with
all Acquisitions (other than Acquisitions that have been expressly
exempted from this requirement in writing by the Majority Banks) during
any twelve months period does not exceed $30,000,000, (D) no Default or
Event of Default exists and the Acquisition would not reasonably be
expected to cause a Default or Event of Default (including any default
under Section 5.5 with respect to historical and future proforma
financial status and results), and (E) the transaction is not hostile,
as reasonably determined by the Agent;
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(iv) Notwithstanding clauses (i) and (ii) of this Section 5.9,
the Borrower may sell its Subsidiary, Forest City Auto Parts, Inc. (or
substantially all of the assets thereof), upon 30 days prior written
notice by the Borrower to the Lender, the completion of a Compliance
Certificate by the Borrower, and the receipt by the Borrower of a
purchase price of not less than $20,000,000.
In connection with any mergers or dispositions described in paragraph (ii) or
paragraph (iv) above, and provided that no Default or Event of Default exists
or would be caused thereby, upon reasonable advance written notice from the
Borrower of the intent to so merge or dispose of assets, (A) the Agent shall
release at the Borrower's expense any obligations under the Guaranty of any
Subsidiary so merged and the Lien of the Agent in any assets so disposed of and
shall execute and deliver in favor of such Subsidiary any releases reasonably
requested by the Borrower to evidence such release, and (B) in connection with
the disposition described in paragraph (iv) above, the Borrower shall be
permitted to receive and retain the proceeds of such disposition free and clear
of the lien of the Pledge Agreement.
5.10 Distributions. Without the Approval of the Majority Banks, the
Borrower shall not (a) declare or pay any dividends; (b) purchase, redeem,
retire, or otherwise acquire for value any of its capital stock now or
hereafter outstanding; or make any distribution of assets to its stockholders
as such, whether in cash, assets, or in obligations of it; (c) allocate or
otherwise set apart any sum for the payment of any dividend or distribution on,
or for the purchase, redemption, or retirement of, any shares of its capital
stock; or (d) make any other distribution by reduction of capital or otherwise
in respect of any shares of its capital stock.
5.11 Transactions with Affiliates. The Borrower shall not permit any
Restricted Entity to enter into any transaction directly or indirectly with or
for the benefit of an Affiliate except transactions with an Affiliate for the
leasing of property, the rendering or receipt of services, or the purchase or
sale of inventory or other assets in the ordinary course of business if the
monetary or business consideration arising from such a transaction would be
substantially as advantageous to such Restricted Entity as the monetary or
business consideration which such Restricted Entity would obtain in a
comparable arm's length transaction.
5.12 Insurance.
(a) The Borrower shall cause each Restricted Entity to
maintain insurance with responsible and reputable insurance companies or
associations reasonably acceptable to the Agent in such amounts and covering
such risks as are usually carried by companies engaged in similar businesses
and owning similar properties in the same general areas in which such Persons
operate. Without limiting the foregoing, the Borrower shall maintain insurance
coverage for the Restricted Entities equal to or better than, on an item by
item basis for each item, the coverage for the Restricted Entities existing on
the date of this Agreement. The Borrower shall deliver to the Agent
certificates evidencing such policies or copies of such
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policies at the Agent's request following a reasonable period to obtain such
certificates taking into account the jurisdiction where the insurance is
maintained.
(b) All policies representing liability insurance of the
Restricted Entities shall name the Agent and the Banks as additional named
insureds in a form satisfactory to the Agent. All proceeds of such liability
insurance coverage for the Agent and the Banks shall be paid as directed by the
Agent to indemnify the Agent or the applicable Bank for the liability covered.
In the event that proceeds of property or liability insurance are paid to any
Restricted Entity in violation of the foregoing, the Restricted Entity shall
hold the proceeds in trust for the Agent, segregate the proceeds from the other
funds of such Restricted Entity, and promptly pay the proceeds to the Agent
with any necessary endorsement. The Agent shall have the right, but not the
obligation, during the existence of an Event of Default, to make proof of loss
under, settle and adjust any claim under, and receive the proceeds under the
insurance, and the reasonable expenses incurred by the Agent in the adjustment
and collection of such proceeds shall be paid by the Borrower. The Borrower
irrevocably appoints the Agent as its attorney in fact to take such actions in
its name. If the Agent does not take such actions, the Borrower may take such
actions subject to the approval of any final action by the Agent. The Agent
shall not be liable or responsible for failure to collect or exercise diligence
in the collection of any proceeds.
5.13 Investments. The Borrower shall not permit any Restricted Entity
to make or hold any direct or indirect investment in any Person, including
capital contributions to the Person, investments in the debt or equity
securities of the Person, and loans, guaranties, trade credit, or other
extensions of credit to the Person, except for Permitted Investments. For the
avoidance of doubt, the Borrower shall not make or hold any investment in any
Subsidiary of the Borrower that is not a wholly owned Guarantor except as
permitted under clause (a)(3) or clause (g) of the definition of "Permitted
Investments."
5.14 Lines of Business. The Borrower shall not permit the Restricted
Entities to change the character of their business as conducted on the date of
this Agreement, or engage in any type of business not reasonably related to
such business as presently and normally conducted except that the Borrower may
enter into the lines of business carried on by BRC and TSG; provided that the
Borrower may, in connection with a sale complying with Section 5.9 (iv), cease
to conduct the lines of business carried on by Forest City Auto Parts, Inc.
5.15 Compliance with Laws. The Borrower shall cause each Restricted
Entity to comply with all federal, state, and local laws and regulations which
are applicable to the operations and property of such Persons where the failure
to comply could reasonably be expected to cause a Material Adverse Change.
5.16 Environmental Compliance. The Borrower shall cause each
Restricted Entity to comply with all Environmental Laws and obtain and comply
with all related permits
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necessary for the ownership and operation of any such Person's properties where
the failure to comply could reasonably be expected to cause a Material Adverse
Change. The Borrower shall cause each Restricted Entity to promptly disclose
to the Agent any notice to or investigation of such Persons for any violation
or alleged violation of any Environmental Law in connection with any such
Person's presently or previously owned properties which represent liabilities
which could reasonably be expected to cause a Material Adverse Change. The
Borrower shall not permit any Restricted Entity to create, handle, transport,
use, or dispose of any Hazardous Materials on or about any such Person's
properties; release any Hazardous Materials into the environment in connection
with any such Person's operations or contaminate any properties with Hazardous
Materials; or own properties contaminated by any Hazardous Materials, in each
case except in compliance with all Environmental Laws and related permits and
in such a manner that such actions could not reasonably be expected to cause a
Material Adverse Change.
5.17 ERISA Compliance. The Borrower shall cause each Restricted
Entity to (i) comply in all material respects with all applicable provisions of
ERISA and prevent the occurrence of any Reportable Event or Prohibited
Transaction with respect to, or the termination of, any of their respective
Plans where the failure to do so could reasonably be expected to cause a
Material Adverse Change and (ii) not create or participate in any employee
pension benefit plan covered by Title IV of ERISA or any multiemployer plan
under Section 4001(a)(3) of ERISA.
5.18 Payment of Certain Claims. The Borrower shall cause each
Restricted Entity to pay and discharge, before the same shall become
delinquent, (a) all taxes, assessments, levies, and like charges imposed upon
any such Person or upon any such Person's income, profits, or property by
authorities having competent jurisdiction prior to the date on which penalties
attach thereto except for tax payments being contested in good faith for which
adequate reserves have been established and reported in accordance with
generally accepted accounting principles which could not reasonably be expected
to cause a Material Adverse Change and (b) all trade payables and current
operating liabilities, unless the same are less than 90 days past due or are
being contested in good faith, have adequate reserves established and reported
in accordance with generally accepted accounting principles, and could not
reasonably be expected to cause a Material Adverse Change.
5.19 Subsidiaries. Upon the formation or acquisition of any new
Subsidiary, the Borrower shall and shall cause such Subsidiary to promptly, but
in any event within 30 days after the formation or acquisition of such new
Subsidiary, execute and deliver to the Agent such guaranties, pledge
agreements, amendment agreements and other documents and agreements as the
Agent requests so that such Subsidiary guarantees and secures the Credit
Obligations on the same terms as the existing Subsidiaries of the Borrower
(including the execution and delivery of a Joinder Agreement in substantially
the form of Exhibit G for the purpose of joining such Subsidiary as a party to
the Guaranty or the execution of such new guaranties and pledge agreements as
the Agent determines are necessary to have the same
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effect in different jurisdictions). In connection therewith and within 30 days
after the formation or acquisition of such new Subsidiary, the Borrower shall
provide corporate documentation and opinion letters reasonably satisfactory to
the Agent reflecting the corporate status of such new Subsidiary of the
Borrower and the enforceability of such agreements.
If the combined revenues of the Subsidiaries of the Borrower that are not
Guarantors exceed 5% of the consolidated revenues of the Borrower during any
quarter, the Borrower shall cause a sufficient number of such non-guarantying
Subsidiaries to execute guarantees, pledge agreements, and other agreements as
if such non-guarantying Subsidiaries were newly acquired under this Section
5.19 to the extent necessary to reduce the revenues of the remaining non-
guarantying Subsidiaries to less than 5% of the consolidated revenues of the
Borrower for that quarter.
Within 30 days of the termination of the Pledge Agreement and
Guaranty dated as of July 31, 1997, by BRC and GRS in favor of Business Records
Corporation, the Borrower shall cause (i) BRC to pledge the stock of GRS to
secure the Credit Obligations and (ii) GRS to pledge the stock of Title Records
Corporation to secure the Credit Obligations.
ARTICLE 6. DEFAULT AND REMEDIES.
6.1 Events of Default. Each of the following shall be an "Event of
Default" for the purposes of this Agreement and for each of the Credit
Documents:
(a) Payment Failure. The Borrower (i) fails to pay when due
any principal amounts due under this Agreement or any other Credit Document or
(ii) fails to pay when due any interest, fees, reimbursements,
indemnifications, or other amounts due under this Agreement or any other Credit
Document and such failure has not been cured within five Business Days;
(b) False Representation. Any written representation or
warranty made by any Credit Party or any Responsible Officer thereof in this
Agreement or in any other Credit Document proves to have been false or
erroneous in any material respect at the time it was made or deemed made;
(c) Breach of Covenant. (i) Any breach by the Borrower of any
of the covenants contained in Sections 5.1(a) (with respect to the Borrower),
5.2, 5.3, 5.4, 5.5, 5.6, 5.7, 5.8, 5.9, 5.10, 5.13, 5.17, or 5.19 or (ii) any
breach by any Credit Party of any other covenants contained in this Agreement,
or any other Credit Document and such breach is not cured within 30 days
following the earlier of knowledge of such breach by such Credit Party or the
receipt of written notice thereof from the Agent;
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(d) Security and Support Documents. Any Security Document
shall at any time and for any reason cease to create the Lien on the property
purported to be subject to such agreement in accordance with the terms of such
agreement, or cease to be in full force and effect, or shall be contested by
any party thereto;
(e) Guaranty. (i) the Guaranty shall at any time and for any
reason cease to be in full force and effect with respect to any Guarantor
(except as permitted under Section 5.9 hereof) or shall be contested by any
Guarantor, or any Guarantor shall deny it has any further liability or
obligation thereunder, or (ii) any breach by any Guarantor of any of the
covenants contained in Sections 1.1 or 1.2 of the Guaranty;
(f) Material Debt Default. (i) Any principal, interest, fees,
or other amounts due on any Debt of any Restricted Entity (other than the
Credit Obligations) is not paid when due, whether by scheduled maturity,
required prepayment, acceleration, demand, or otherwise, and such failure is
not waived or cured within the applicable grace period, if any, and the
aggregate amount of all Debt of such Persons so in default exceeds $1,000,000;
(ii) any other event shall occur or condition shall exist under any agreement
or instrument relating to any Debt of any such Person (other than the Credit
Obligations) the effect of which is to accelerate or to permit the acceleration
of the maturity of any such Debt, whether or not any such Debt is actually
accelerated, and such event or condition shall not be waived or cured within
the applicable grace period, if any, and the aggregate amount of all Debt of
such Persons so in default exceeds $1,000,000; (iii) any Debt of any such
Person shall be declared to be due and payable, or required to be prepaid
(other than by a regularly scheduled prepayment) prior to the stated maturity
thereof, and the aggregate amount of all Debt of such Persons so accelerated
exceeds $500,000; or (iv) there shall occur any "Event of Default" under any of
the BRC Loan Documents;
(g) Bankruptcy and Insolvency. (i) there shall have been
filed against any Restricted Entity or any such Person's properties, without
such Person's consent, any petition or other request for relief seeking an
arrangement, receivership, reorganization, liquidation, or similar relief under
bankruptcy or other laws for the relief of debtors and such request for relief
(A) remains in effect for 60 or more days, whether or not consecutive, or (B)
is approved by a final nonappealable order, or (ii) any such Person consents
to or files any petition or other request for relief of the type described in
clause (i) above seeking relief from creditors, makes any assignment for the
benefit of creditors or other arrangement with creditors, or admits in writing
such Person's inability to pay such Person's debts as they become due (the
occurrence of any Event of Default under clause (i) or (ii) of this paragraph
being a "Bankruptcy Event of Default");
(h) Adverse Judgment. The aggregate outstanding amount of
judgments against the Restricted Parties not discharged or stayed pending
appeal or other court action within 30 days following entry (i) is greater than
10% of the Borrower's consolidated Net Worth or (ii) could reasonably be
expected to cause a Material Adverse Change;
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(i) TPI and Swan Report. The Agent shall, in its sole and
absolute discretion, deem unsatisfactory any fact reported in or omitted from
the report prepared by the Borrower pursuant to Section 3.1(f) or any
supplement thereof pursuant to Section 5.2(b)(iv); or
(j) Change of Control. There shall occur any Change of
Control.
6.2 Termination of Revolving Loan Commitments. Upon the occurrence
of any Bankruptcy Event of Default, all of the commitments of the Agent and the
Banks hereunder shall terminate. During the existence of any Event of Default
other than a Bankruptcy Event of Default, the Agent shall at the request of the
Majority Banks declare by written notice to the Borrower all of the commitments
of the Agent and the Banks hereunder terminated, whereupon the same shall
immediately terminate.
6.3 Acceleration of Credit Obligations. Upon the occurrence of any
Bankruptcy Event of Default, the aggregate outstanding principal amount of all
loans made hereunder, all accrued interest thereon, and all other Credit
Obligations shall immediately and automatically become due and payable. During
the existence of any Event of Default other than a Bankruptcy Event of Default,
the Agent shall at the request of the Majority Banks declare by written notice
to the Borrower the aggregate outstanding principal amount of all loans made
hereunder, all accrued interest thereon, and all other Credit Obligations to be
immediately due and payable, whereupon the same shall immediately become due
and payable. In connection with the foregoing, except for the notice provided
for above, the Borrower waives notice of any Default or Event of Default,
grace, notice of intent to accelerate, notice of acceleration, presentment,
demand, notice of nonpayment, protest, and all other notices.
6.4 Cash Collateralization of Letters of Credit. Upon the occurrence
of any Bankruptcy Event of Default, the Borrower shall pay to the Agent an
amount equal to the Letter of Credit Exposure allocable to the Letters of
Credit requested by the Borrower to be held in the Letter of Credit Collateral
Account for disposition in accordance with Section 2.2(g). During the
existence of any Event of Default other than a Bankruptcy Event of Default, the
Agent shall at the request of the Majority Banks require by written notice to
the Borrower that the Borrower pay to the Agent an amount equal to the Letter
of Credit Exposure allocable to the Letters of Credit requested by the Borrower
to be held in the Letter of Credit Collateral Account for disposition in
accordance with Section 2.2(g), whereupon the Borrower shall pay to the Agent
such amount for such purpose.
6.5 Default Interest. If any Event of Default exists, the Agent
shall at the request of the Majority Banks declare by written notice to the
Borrower that the Credit Obligations specified in such notice shall bear
interest beginning on the date specified in such notice until paid in full at
the applicable Default Rate for such Credit Obligations, whereupon the Borrower
shall pay such interest to the Agent for the benefit of the Agent and the
Banks, as applicable, upon demand by the Agent.
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6.6 Right of Setoff. During the existence of an Event of Default,
the Agent and each Bank is hereby authorized at any time, to the fullest extent
permitted by law, to set off and apply any indebtedness owed by the Agent or
such Bank to the Borrower against any and all of the obligations of the
Borrower under this Agreement and the Credit Documents, irrespective of whether
or not the Agent or such Bank shall have made any demand under this Agreement
or the Credit Documents and although such obligations may be contingent and
unmatured. The Agent and each Bank, as the case may be, agrees promptly to
notify the Borrower after any such setoff and application made by such party
provided that the failure to give such notice shall not affect the validity of
such setoff and application.
6.7 Actions Under Credit Documents. Following an Event of Default,
the Agent shall at the request of the Majority Banks take any and all actions
permitted under the other Credit Documents, including the Guaranty and the
Security Documents.
6.8 Remedies Cumulative. No right, power, or remedy conferred to the
Agent or the Banks in this Agreement and the Credit Documents, or now or
hereafter existing at law, in equity, by statute, or otherwise, shall be
exclusive, and each such right, power, or remedy shall to the full extent
permitted by law be cumulative and in addition to every other such right,
power, or remedy. No course of dealing and no delay in exercising any right,
power, or remedy conferred to the Agent or the Banks in this Agreement and the
Credit Documents, or now or hereafter existing at law, in equity, by statute,
or otherwise, shall operate as a waiver of or otherwise prejudice any such
right, power, or remedy.
6.9 Application of Payments. Prior to the Revolving Loan Maturity
Date or any acceleration of the Credit Obligations, all payments made hereunder
shall be applied to the Credit Obligations as directed by the Borrower, subject
to the rules regarding the application of payments to certain Credit
Obligations provided for hereunder and in the Credit Documents. Following the
Revolving Loan Maturity Date or any acceleration of the Credit Obligations, all
payments and collections shall be applied to the Credit Obligations in the
following order:
First, to the payment of the costs, expenses, reimbursements
(other than reimbursement obligations with respect to draws under
Letters of Credit), and indemnifications of the Agent that are
due and payable under the Credit Documents;
Then, ratably to the payment of the costs, expenses,
reimbursements (other than reimbursement obligations with respect
to draws under Letters of Credit), and indemnifications of the
Banks that are due and payable under the Credit Documents;
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Then, ratably to the payment of all accrued but unpaid interest
and fees and obligations under Interest Hedge Agreements due and
payable under the Credit Documents;
Then, ratably to the payment of all outstanding principal and
reimbursement obligations for draws under Letters of Credit due
and payable under the Credit Documents;
Then, ratably to the payment of any other amounts due and owing
with respect to the Credit Obligations; and
Finally, any surplus held by the Agent and remaining after
payment in full of all the Credit Obligations and reserve for
Credit Obligations not yet due and payable shall be promptly paid
over to the Borrower or to whomever may be lawfully entitled to
receive such surplus. All applications shall be distributed in
accordance with Section 2.9(a).
ARTICLE 7. THE AGENT AND THE ISSUING BANK
7.1 Authorization and Action. Each Bank hereby appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement as are delegated to the Agent by the terms
hereof and of the other Credit Documents, together with such powers as are
reasonably incidental thereto. Statements under the Credit Documents that the
Agent may take certain actions, without further qualification, means that the
Agent may take such actions with or without the consent of the Banks or the
Majority Banks, but where the Credit Documents expressly require the
determination of the Banks or the Majority Banks, the Agent shall not take any
such action without the prior written consent thereof. As to any matters not
expressly provided for by this Agreement or any other Credit Document
(including, without limitation, enforcement or collection of the Revolving Loan
Notes), the Agent shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the written
instructions of the Majority Banks, and such instructions shall be binding upon
all Banks and all holders of Revolving Loan Notes; provided, however, that the
Agent shall not be required to take any action which exposes the Agent to
personal liability or which is contrary to this Agreement, any other Credit
Document, or applicable law.
7.2 Reliance, Etc. Neither the Agent, the Issuing Bank, nor any of
their respective Related Parties (for the purposes of this Section 7.2,
collectively, the "Indemnified Parties") shall be liable for any action taken
or omitted to be taken by any Indemnified Party under or in connection with
this Agreement or the other Credit Documents, INCLUDING ANY INDEMNIFIED PARTY'S
OWN NEGLIGENCE, except for any Indemnified Party's gross negligence or willful
misconduct. Without limitation of the generality of the foregoing,
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the Agent and the Issuing Bank: (a) may treat the payee of any Revolving Loan
Note as the holder thereof until the Agent receives written notice of the
assignment or transfer thereof signed by such payee and in form satisfactory to
the Agent; (b) may consult with legal counsel (including counsel for the
Borrower), independent public accountants, and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith
by it in accordance with the advice of such counsel, accountants, or experts;
(c) makes no warranty or representation to any Bank and shall not be
responsible to any Bank for any statements, warranties, or representations made
in or in connection with this Agreement or the other Credit Documents; (d)
shall not have any duty to ascertain or to inquire as to the performance or
observance of any of the terms, covenants, or conditions of this Agreement or
any other Credit Document on the part of the Credit Parties or to inspect the
property (including the books and records) of the Credit Parties; (e) shall not
be responsible to any Bank for the due execution, legality, validity,
enforceability, genuineness, sufficiency, or value of this Agreement or any
other Credit Document; and (f) shall incur no liability under or in respect of
this Agreement or any other Credit Document by acting upon any notice, consent,
certificate, or other instrument or writing (which may be by telecopier or
telex) reasonably believed by it to be genuine and signed or sent by the proper
party or parties.
7.3 Affiliates. With respect to its Revolving Loan Commitments, the
Revolving Loan Advances made by it, its interests in the Letters of Credit, and
the Revolving Loan Notes issued to it, the Agent and the Issuing Bank shall
have the same rights and powers under this Agreement as any other Bank and may
exercise the same as though it were not the Agent. The term "Bank" or "Banks"
shall, unless otherwise expressly indicated, include the Agent and the Issuing
Bank in their individual capacity. The Agent, the Issuing Bank, and their
respective Affiliates may accept deposits from, lend money to, act as trustee
under indentures of, and generally engage in any kind of business with, any
Credit Party, and any Person who may do business with or own securities of any
Credit Party, all as if the Agent were not an agent hereunder and the Issuing
Bank were not the issuer of Letters of Credit hereunder and without any duty to
account therefor to the Banks.
7.4 Bank Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Agent or any other Bank and based
on the Financial Statements and such other documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into
this Agreement. Each Bank also acknowledges that it shall, independently and
without reliance upon 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.
7.5 Expenses. To the extent not paid by the Borrower, each Bank
severally agrees to pay to the Agent and the Issuing Bank on demand such Bank's
ratable share of the following: (a) all reasonable out-of-pocket costs and
expenses of the Agent and the Issuing Bank in connection with the preparation,
execution, delivery, administration, modification, and amendment of this
Agreement and the other Credit Documents, including the reasonable
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fees and expenses of outside counsel for the Agent and the Issuing Bank with
respect to advising the Agent and the Issuing Bank as to their respective
rights and responsibilities under this Agreement and the Credit Documents, and
(b) all out-of-pocket costs and expenses of the Agent and the Issuing Bank in
connection with the preservation or enforcement of the rights of the Agent, the
Issuing Bank, and the Banks under this Agreement and the other Credit
Documents, whether through negotiations, legal proceedings, or otherwise,
including fees and expenses of counsel for the Agent and the Issuing Bank. The
provisions of this paragraph shall survive the repayment and termination of the
credit provided for under this Agreement and any purported termination of this
Agreement which does not expressly refer to this paragraph.
7.6 Indemnification. To the extent not reimbursed by the Borrower,
each Bank severally agrees to protect, defend, indemnify, and hold harmless the
Agent, the Issuing Bank, and each of their respective Related Parties (for the
purposes of this Section 7.6, collectively, the "Indemnified Parties"), from
and against all demands, claims, actions, suits, damages, judgments, fines,
penalties, liabilities, and out-of-pocket costs and expenses, including
reasonable costs of attorneys and related costs of experts such as accountants
(collectively, the "Indemnified Liabilities"), actually incurred by any
Indemnified Party which are related to any litigation or proceeding relating to
this Agreement, the Credit Documents, or the transactions contemplated
thereunder, INCLUDING ANY INDEMNIFIED LIABILITIES CAUSED BY ANY INDEMNIFIED
PARTY'S OWN NEGLIGENCE, but not Indemnified Liabilities which are a result of
any Indemnified Party's gross negligence or willful misconduct. The provisions
of this paragraph shall survive the repayment and termination of the credit
provided for under this Agreement and any purported termination of this
Agreement which does not expressly refer to this paragraph.
7.7 Successor Agent and Issuing Bank. The Agent or the Issuing Bank
may resign at any time by giving written notice thereof to the Banks and the
Borrower and may be removed at any time with or without cause by the Majority
Banks upon receipt of written notice from the Majority Banks to such effect.
Upon receipt of notice of any such resignation or removal, the Majority Banks
shall have the right to appoint a successor Agent or Issuing Bank with the
consent of the Borrower, which consent shall not be unreasonably withheld. If
no successor Agent or Issuing Bank shall have been so appointed by the Majority
Banks with the consent of the Borrower, and shall have accepted such
appointment, within 30 days after the retiring Agent's or Issuing Bank's giving
of notice of resignation or the Majority Banks' removal of the retiring Agent
or Issuing Bank, then the retiring Agent or Issuing Bank may, on behalf of the
Banks and the Borrower, appoint a successor Agent or Issuing Bank, which shall
be, in the case of a successor agent, a commercial bank organized under the
laws of the United States of America or of any State thereof and having a
combined capital and surplus of at least $500,000,000 and, in the case of the
Issuing Bank, a Bank. Upon the acceptance of any appointment as Agent or
Issuing Bank by a successor Agent or Issuing Bank, such successor Agent or
Issuing Bank shall thereupon succeed to and become vested with all the rights,
powers, privileges, and duties of the retiring Agent or Issuing Bank, and
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the retiring Agent or Issuing Bank shall be discharged from any duties and
obligations under this Agreement and the other Credit Documents after such
acceptance, except that the retiring Issuing Bank shall remain the Issuing Bank
with respect to any Letters of Credit outstanding on the effective date of its
resignation or removal and the provisions affecting the Issuing Bank with
respect to such Letters of Credit shall inure to the benefit of the retiring
Issuing Bank until the termination of all such Letters of Credit. After any
Agent's or Issuing Bank's resignation or removal hereunder as Agent or Issuing
Bank, the provisions of this Article 7 shall inure to such Person's benefit as
to any actions taken or omitted to be taken by such Person while such Person
was Agent or Issuing Bank under this Agreement and the other Credit Documents.
ARTICLE 8. MISCELLANEOUS.
8.1 Expenses. The Borrower shall pay on demand of the applicable
party specified herein (a) all reasonable out-of-pocket costs and expenses of
the Agent and the Issuing Bank in connection with the preparation, execution,
delivery, administration, modification, and amendment of this Agreement and the
other Credit Documents, including the reasonable fees and expenses of outside
counsel for the Agent and the Issuing Bank, and (b) all out-of-pocket costs and
expenses of the Agent, the Issuing Bank, and each Bank in connection with the
preservation or enforcement of their respective rights under this Agreement and
the other Credit Documents, whether through negotiations, legal proceedings, or
otherwise, including fees and expenses of counsel for the Agent, the Issuing
Bank, and each Bank. The provisions of this paragraph shall survive the
repayment and termination of the credit provided for under this Agreement and
any purported termination of this Agreement which does not expressly refer to
this paragraph.
8.2 Indemnification. The Borrower agrees to protect, defend,
indemnify, and hold harmless the Agent, the Issuing Bank, each Bank, and each
of their respective Related Parties (for the purposes of this Section 8.2,
collectively, the "Indemnified Parties"), from and against all demands, claims,
actions, suits, damages, judgments, fines, penalties, liabilities, and out-of-
pocket costs and expenses, including reasonable costs of attorneys and related
costs of experts such as accountants (collectively, the "Indemnified
Liabilities"), actually incurred by any Indemnified Party which are related to
any litigation or proceeding relating to this Agreement, the Credit Documents,
or the transactions contemplated thereunder, INCLUDING ANY INDEMNIFIED
LIABILITIES CAUSED BY ANY INDEMNIFIED PARTY'S OWN NEGLIGENCE, but not
Indemnified Liabilities which are a result of any Indemnified Party's gross
negligence or willful misconduct. The provisions of this paragraph shall
survive the repayment and termination of the credit provided for under this
Agreement and any purported termination of this Agreement which does not
expressly refer to this paragraph.
8.3 Modifications, Waivers, and Consents. No modification or waiver
of any provision of this Agreement or the Revolving Loan Notes, nor any consent
required under
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<PAGE> 59
this Agreement or the Revolving Loan Notes, shall be effective unless the same
shall be in writing and signed by the Agent and Majority Banks and the
Borrower, and then such modification, waiver, or consent shall be effective
only in the specific instance and for the specific purpose for which given;
provided, however, that no modification, waiver, or consent shall, unless in
writing and signed by the Agent, all the Banks, and the Borrower do any of the
following: (a) waive any of the conditions specified in Section 3.1 or 3.2,
(b) increase the Revolving Loan Commitments of the Banks, (c) forgive or reduce
the amount or rate of any principal, interest, or fees payable under the Credit
Documents, or postpone or extend the time for payment thereof, (d) release any
Guaranty or any material collateral securing the Credit Obligations (except as
otherwise permitted or required herein), or (e) change the percentage of Banks
required to take any action under this Agreement, the Revolving Loan Notes, or
the Security Documents, including any amendment of the definition of "Majority
Banks" or this Section 8.3. No modification, waiver, or consent shall, unless
in writing and signed by the Agent or the Issuing Bank affect the rights or
obligations of the Agent or the Issuing Bank, as the case may be, under the
Credit Documents. The Agent shall not modify or waive or grant any consent
under any other Credit Document of such action would be prohibited under this
Section 8.3 with respect to the Credit Agreement or the Revolving Loan Notes.
8.4 Survival of Agreements. All representations, warranties, and
covenants of the Borrower in this Agreement and the Credit Documents shall
survive the execution of this Agreement and the Credit Documents and any other
document or agreement.
8.5 Assignment and Participation. This Agreement and the Credit
Documents shall bind and inure to the benefit of the Borrower and their
respective successors and assigns and the Agent and the Banks and their
respective successors and assigns. The Borrower may not assign its rights or
delegate its duties under this Agreement or any Credit Document.
(a) Assignments. Any Bank may assign to one or more banks or
other entities all or any portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Revolving
Loan Commitments, the Revolving Loan Advances owing to it, the Revolving Loan
Notes held by it, and the participation interest in the Letters of Credit owned
by it); provided, however, that (i) each such assignment shall be of a
constant, and not a varying, percentage of all of such Bank's rights and
obligations under this Agreement, (ii) assignments of Revolving Loan
Commitments shall be made in minimum amounts of $5,000,000 and be made in
integral multiples of $1,000,000 and the assigning Bank, if it retains any
Revolving Loan Commitments, shall maintain at least $5,000,000 in Revolving
Loan Commitments, (iii) each such assignment shall be to an Eligible Assignee,
(iv) the parties to each such assignment shall execute and deliver to the
Agent, for its acceptance and recording in the Register, an Assignment and
Acceptance, together with the Revolving Loan Notes subject to such assignment,
and (v) each Eligible Assignee (other than the Eligible Assignee of the Agent)
shall pay to the Agent a $5,000 administrative fee. Upon such execution,
delivery, acceptance and recording, from and after the effective date specified
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<PAGE> 60
in each Assignment and Acceptance, which effective date shall be at least three
Business Days after the execution thereof, (A) the assignee thereunder shall be
a party hereto for all purposes and, to the extent that rights and obligations
hereunder have been assigned to it pursuant to such Assignment and Acceptance,
have the rights and obligations of a Bank hereunder and (B) such Bank
thereunder shall, to the extent that rights and obligations hereunder have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its
rights and be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all or the remaining portion of
such Bank's rights and obligations under this Agreement, such Bank shall cease
to be a party hereto).
(b) Term of Assignments. By executing and delivering an
Assignment and Acceptance, the Bank thereunder and the assignee thereunder
confirm to and agree with each other and the other parties hereto as follows:
(i) other than as provided in such Assignment and Acceptance, such Bank makes
no representation or 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 of value of this Agreement or any other instrument or document
furnished pursuant hereto; (ii) such Bank makes no representation or warranty
and assumes no responsibility with respect to the financial condition of any
Credit Party or the performance or observance by any Credit Party of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the Financial Statements and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (iv) such
assignee shall, independently and without reliance upon the Agent, such Bank 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; (v) such assignee appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement as are delegated to the Agent by the terms
hereof, together with such powers as are reasonably incidental thereto; and
(vi) such assignee agrees that it shall perform in accordance with their terms
all of the obligations which by the terms of this Agreement are required to be
performed by it as a Bank.
(c) The Register. The Agent shall maintain at its address
referred to in Section 8.6 a copy of each Assignment and Acceptance delivered
to and accepted by it and a register for the recordation of the names and
addresses of the Banks and the Revolving Loan Commitments of each Bank from
time to time (the "Register"). The entries in the Register shall be conclusive
and binding for all purposes, absent manifest error, and the Borrower, the
Agent, the Issuing Bank, and the Banks may treat each Person whose name is
recorded in the Register as a Bank hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower or
any Bank at any reasonable time and from time to time upon reasonable prior
notice.
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<PAGE> 61
(d) Procedures. Upon its receipt of an Assignment and
Acceptance executed by a Bank and an Eligible Assignee, together with the
Revolving Loan Notes subject to such assignment, the Agent shall, if such
Assignment and Acceptance has been completed in the appropriate form, (i)
accept such Assignment and Acceptance, (ii) record the information contained
therein in the Register, and (iii) give prompt notice thereof to the Borrower.
Within five Business Days after its receipt of such notice, the Borrower shall
execute and deliver to the Agent in exchange for the surrendered Revolving Loan
Notes a new Revolving Loan Note to the order of such Eligible Assignee in an
amount equal to the Revolving Loan Commitment assumed by it pursuant to such
Assignment and Acceptance and, if such Bank has retained any Revolving Loan
Commitment hereunder, a new Revolving Loan Note to the order of such Bank in an
amount equal to the Revolving Loan Commitment retained by it hereunder. Such
new Revolving Loan Notes shall be dated the effective date of such Assignment
and Acceptance and shall be in the appropriate form.
(e) Participation. Each Bank may sell participation to one or
more banks or other entities in or to all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Revolving Loan Commitments, the Revolving Loan Advances owing to
it, its participation interest in the Letters of Credit, and the Revolving Loan
Notes held by it); provided, however, that (i) such Bank's obligations under
this Agreement (including, without limitation, its Revolving Loan Commitments
to the Borrower hereunder) shall remain unchanged, (ii) such Bank shall remain
solely responsible to the other parties hereto for the performance of such
obligations, (iii) such Bank shall remain the holder of any such Revolving Loan
Notes for all purposes of this Agreement, (iv) the Borrower, the Agent, and the
Issuing Bank and the other Banks shall continue to deal solely and directly
with such Bank in connection with such Bank's rights and obligations under this
Agreement, and (v) such Bank shall not require the participant's consent to any
matter under this Agreement, except for change in the principal amount of the
Revolving Loan Notes, reductions in fees or interest, extending the applicable
maturity date, or releasing any collateral or guarantor (except to the extent
otherwise permitted herein or in any of the other Credit Documents). The
Borrower hereby agrees that participants shall have the same rights under
Sections 2.5, 2.6, 2.7, 2.8, 2.9, and 8.2 as a Bank to the extent of their
respective participation.
(f) Assignments or Pledges to Federal Reserve Banks. In addition to
the foregoing rights of assignment and participation, any Bank may assign or
pledge any portion of its rights under this Agreement (including the Revolving
Loan Advances owed to such Bank) to any Federal Reserve Bank in accordance with
applicable law without notice to or the consent of the Borrower or the Agent,
provided that (i) such Bank shall not be relieved of its obligations under this
Agreement as a result thereof and (ii) in no event shall the Federal Reserve
Bank be entitled to direct the actions of the pledging or assigning Bank under
this Agreement.
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<PAGE> 62
8.6 Notice. All notices and other communications under this
Agreement and the Revolving Loan Notes shall be in writing and mailed by
certified mail (return receipt requested), telecopied, telexed, hand delivered,
or delivered by a nationally recognized overnight courier, to the address for
the appropriate party specified in Schedule I or at such other address as shall
be designated by such party in a written notice to the other parties. Mailed
notices shall be effective when received. Telecopied or telexed notices shall
be effective when transmission is completed or confirmed by telex answerback.
Delivered notices shall be effective when delivered by messenger or courier.
Notwithstanding the foregoing, notices and communications to the Agent pursuant
to Article 2 or 7 shall not be effective until received by the Agent.
8.7 Choice of Law. This Agreement and the Revolving Loan Notes have
been prepared, are being executed and delivered, and are intended to be
performed in the State of Texas, and the substantive laws of the State of Texas
and the applicable federal laws of the United States shall govern the validity,
construction, enforcement, and interpretation of this Agreement and the
Revolving Loan Notes; provided however, except for Section 346.004 of the Texas
Finance Code, neither the provisions of Chapter 346 of the Texas Finance Code,
nor, except for Section 15.10(b) thereof, the provisions of Tex. Rev. Civ.
Stat. Ann. art. 5069-15.01, et seq. (each pertaining to certain revolving
credit loans and revolving tri-party accounts) shall apply to this Agreement,
to any of the other Credit Documents, or to the loan transactions evidenced or
contemplated by this Agreement. Each Letter of Credit shall be governed by the
Uniform Customs and Practice for Documentary Credits, International Chamber of
Commerce Publication No. 500 (1993 version).
8.8 Forum Selection. THE BORROWER IRREVOCABLY CONSENTS TO THE
JURISDICTION OF THE COURTS OF THE STATE OF TEXAS AND OF ANY FEDERAL COURT
LOCATED IN SUCH STATE IN CONNECTION WITH ANY ACTION OR PROCEEDING ARISING OUT
OF OR RELATING TO THE CREDIT DOCUMENTS OR ANY TRANSACTIONS RELATED THERETO.
THE BORROWER AGREES AND SHALL NOT CONTEST THAT PROPER FORUM AND VENUE FOR ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE CREDIT DOCUMENTS OR ANY
TRANSACTIONS RELATING THERETO ARE IN THE COURTS OF THE STATE OF TEXAS IN HARRIS
COUNTY, TEXAS, AND THE FEDERAL COURTS LOCATED IN HARRIS COUNTY, TEXAS. THE
BORROWER IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO
THE FOREGOING BASED UPON CLAIMS THAT THE FOREGOING COURTS ARE AN INCONVENIENT
FORUM.
8.9 Service of Process. IN ANY ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THE CREDIT DOCUMENTS OR ANY TRANSACTIONS RELATING THERETO, THE
BORROWER WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT, OR OTHER PROCESS OR
NOTICE AND AGREES THAT SERVICE BY FIRST CLASS MAIL, RETURN RECEIPT REQUESTED,
TO THE
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<PAGE> 63
BORROWER AT ITS ADDRESS FOR NOTICES HEREUNDER, OR ANY OTHER FORM OF SERVICE
PROVIDED FOR IN THE TEXAS CIVIL PRACTICE LAW AND RULES THEN IN EFFECT SHALL
CONSTITUTE GOOD AND SUFFICIENT SERVICE UPON THE BORROWER.
8.10 Waiver of Jury Trial. THE BORROWER IRREVOCABLY WAIVES ANY RIGHT
TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THE
CREDIT DOCUMENTS OR ANY TRANSACTIONS RELATING THERETO.
8.11 Counterparts. This Agreement may be executed in multiple
counterparts which together shall constitute one and the same instrument.
[The remainder of this page is intentionally blank.]
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<PAGE> 64
8.12 No Further Agreements. THIS WRITTEN AGREEMENT AND THE CREDIT
DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
EXECUTED as of the date first above written.
BORROWER:
TYLER CORPORATION
By:
----------------------------------------
Brian K. Miller, Vice President
AGENT:
NATIONSBANK OF TEXAS, N.A., as Agent
By:
---------------------------------------
William T. Griffin, Jr.
Vice President
BANKS:
NATIONSBANK OF TEXAS, N.A.
By:
---------------------------------------
William T. Griffin, Jr.
Vice President
Revolving Loan Commitment: $50,000,000
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<PAGE> 65
[Execution Version]
Exhibit A
FORM OF
COMPLIANCE CERTIFICATE
[date]
NationsBank of Texas, N.A., as Agent
for the financial institutions parties to the
Credit Agreement referred to below
700 Louisiana, 7th Floor
Houston, Texas 77002
Attention: Mr. William T. Griffin, Jr.
Ladies and Gentlemen:
I refer to the Credit Agreement dated as of February 13, 1998 (as the same may
be modified from time to time, the "Credit Agreement"), among Tyler Corporation
(the "Borrower"), the financial institutions parties thereto, and NationsBank
of Texas, N.A., as Agent for such financial institutions, the defined terms of
which are used herein unless otherwise defined herein.
I hereby certify that I have no knowledge of any Defaults by the Borrower in
the observance of any of the provisions in the Credit Agreement which existed
as of [_______________] or which exist as of the date of this letter.
I also certify that the accompanying consolidated Financial Statements present
fairly, in all material respects, the consolidated financial condition of the
Borrower as of [_______________], and the related results of operations for the
[_______________] then ended, in conformity with generally accepted accounting
principles (subject, with respect to financial statements furnished pursuant to
Section 5.2(b) of the Credit Agreement, to normal year-end audit adjustments).
The following sets forth the information and computations to demonstrate
compliance with the requirements of Section 5.5 of the Credit Agreement as of
[_______________]:
<PAGE> 66
<TABLE>
<S> <C> <C>
A. Section 5.5(a) Net Worth
1. Net Worth $
--------------------
2. 90% of consolidated Net Worth of Borrower
as of December 31, 1997 $
--------------------
3. 50% of cumulative quarterly consolidated
positive net income of Borrower for each
fiscal quarter ending after December 31, 1997 $
--------------------
4. 100% of net proceeds resulting from any sale or
issuance of any stock of Borrower or its
Subsidiaries since December 31, 1997 $
--------------------
5. 100% of any increase in the consolidated
Net Worth of the Borrower resulting from any
Acquisition (which increase has not included the $
calculation of A.2, A.3 or A.4) --------------------
6. Minimum Net Worth requirement =
A.2 + A.3 + A.4 + A.5 $
--------------------
B. Section 5.5(b) Debt Ratio
1. consolidated Debt as of fiscal quarter
most recently ended $
----------------
2. consolidated EBITDA for preceding
four fiscal quarters $
----------------
3. ratio B.1 / B.2 to 1.00
--------
4. maximum permitted 3.00 to 1.00
C. Section 5.5(c) Fixed Charge Coverage Ratio
1. consolidated EBITDA for preceding
four fiscal quarters $
----------------
2. consolidated cash taxes paid for preceding
four fiscal quarters $
----------------
3. consolidated Capital Expenditures for
the preceding four fiscal quarters $
----------------
4. consolidated scheduled principal payments on
long-term debt (including Capital Leases) for
preceding four fiscal quarters $
----------------
5. consolidated interest expense for preceding
four fiscal quarters $
----------------
</TABLE>
<PAGE> 67
<TABLE>
<S> <C> <C>
6. consolidated cash dividends paid for preceding
four fiscal quarters $
----------------
7. ratio = (D.1 - D.2 - D.3) / (D.4 + D.5 + D.6) to 1.00
--------
8. minimum required
prior to and including March 31, 1998: 1.75 to 1.00
from April 1, 1998 to June 30, 1998: 2.00 to 1.00
From July 1, 1998 and thereafter: 2.25 to 1.00
</TABLE>
Very truly yours,
------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
<PAGE> 68
[Execution Version]
Exhibit B
FORM OF
BORROWING REQUEST
[date]
NationsBank of Texas, N.A.,
as Agent
Attn: Mr. William T. Griffin, Jr.
700 Louisiana, 7th Floor
Houston, Texas 77002
Telephone: 713-247-7457
Telecopier: 713-247-7748
Ladies and Gentlemen:
The undersigned, Tyler Corporation, a Delaware corporation ("Borrower"), refers
to the Credit Agreement dated as of February 13, 1998 (as the same may be
modified from time to time, the "Credit Agreement," the defined terms of which
are used in this Borrowing Request unless otherwise defined in this Borrowing
Request) among the Borrower, the financial institutions parties thereto
("Banks"), and NationsBank of Texas, N.A., as agent for the Banks ("Agent"),
and hereby gives you irrevocable notice pursuant to Section 2.1(b)(i) of the
Credit Agreement that the undersigned hereby requests a Revolving Loan
Borrowing (the "Proposed Borrowing") on the terms set forth below:
Date of Revolving Loan Borrowing(1) :
Type of Tranches(2) :
Aggregate Amount(3) :
Interest Period(4) :
- --------------------
(1) The Date of Revolving Loan Borrowing for the Proposed Borrowing must be
a Business Day. The Borrower must give three Business Days' advance notice for
Revolving Loan Borrowings including LIBOR Tranches or same day notice for
Revolving Loan Borrowings including only Prime Rate Tranches.
(2) The Type of Tranches comprising the Proposed Borrowing may be Prime
Rate Tranches or LIBOR Tranches subject to the provisions of Section 2.4(a)(i).
(3) The Aggregate Amount of the Proposed Borrowing must be in a minimum
amount of the Minimum Borrowing Amount of $[_________________________] and in
multiples of the Minimum Borrowing Multiple of $[_________________________].
(4) The Interest Period applies only to Revolving Loan Borrowings including
LIBOR Tranches and may be one, two, three, or six months. Insert "N/A" for
Revolving Loan Borrowings including any Prime Rate Tranches.
<PAGE> 69
The undersigned hereby certifies that the following statements are true on the
date hereof, and will be true on the date of the Proposed Borrowing:
(a) the representations and warranties contained in the Credit
Agreement are correct in all material respects, before and after giving effect
to the Proposed Borrowing and the application of the proceeds therefrom, as
though made on the date of the Proposed Borrowing;
(b) no Default has occurred and remains uncured, nor would result
from the Proposed Borrowing or from the application of the proceeds therefrom;
and
(c) following the making of the proposed Revolving Loan Borrowing and
all other Revolving Loan Borrowings to be made on the same day to the Borrower,
the aggregate outstanding principal amount of the Revolving Loan plus the
Letter of Credit Exposure shall not exceed the aggregate amount of the
Revolving Loan Commitments.
Very truly yours,
TYLER CORPORATION
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
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<PAGE> 70
[Execution Version]
Exhibit C
FORM OF
CONTINUATION/CONVERSION REQUEST
[date]
NationsBank of Texas, N.A.,
as Agent
Attn: Mr. William T. Griffin, Jr.
700 Louisiana, 7th Floor
Houston, Texas 77002
Telephone: 713-247-7457
Telecopier: 713-247-7748
Ladies and Gentlemen:
The undersigned, Tyler Corporation, a Delaware corporation (the "Borrower"),
refers to the Credit Agreement dated as of February 13, 1998 (as the same may
be modified from time to time, the "Credit Agreement," the defined terms of
which are used in this Continuation/Conversion Request unless otherwise defined
in this Continuation/Conversion Request), among the Borrower, the financial
institutions parties thereto ("Banks"), and NationsBank of Texas, N.A., as
agent for the Banks ("Agent"), and hereby gives you irrevocable notice pursuant
to Section 2.4(a)(ii) of the Credit Agreement that the undersigned hereby
requests a [conversion][continuation] of the outstanding Tranche(s) described
below into a new Tranche (the "Proposed Tranche") on the terms set forth below:
<PAGE> 71
<TABLE>
<S> <C>
Outstanding Tranche #1
----------------------
Date of Tranche's Origination :
Type of Tranche :
Aggregate Amount(1)
for Continuation/
Conversion :
Interest Period :
[Outstanding Tranche #2
----------------------
Date of Tranche's Origination :
Type of Tranche :
Aggregate Amount(1)
for Continuation/
Conversion :
Interest Period :]
Proposed Tranche
----------------
Date of Continuation
or Conversion(2) :
Type of Tranche(3) :
Aggregate Amount(4) :
Interest Period(5) :
- ----------------------------------
</TABLE>
(1) The Aggregate Amount for Conversion with respect to Tranches must be in
multiples of the Minimum Tranche Multiple of $[______________________]. No
continuation or conversion may be made if such continuation or conversion would
cause the aggregate amount of any LIBOR Tranche or all Prime Rate Tranches to
be less than the Minimum Tranche Amount of $[____________________].
(2) The Date of the proposed continuation or conversion must be a Business
Day. The Borrower must give three Business Days' advance notice for
conversions into or continuations of LIBOR Tranches.
(3) The Type of Tranches may be Prime Rate Tranches or LIBOR Tranches.
(4) The Aggregate Amount of the Proposed Tranche must be in multiples of
the Minimum Tranche Multiple of $[_______________________]. No continuation or
conversion may be made if such continuation or conversion would cause the
aggregate amount of any LIBOR Tranche or all Prime Rate Tranches to be less
than the Minimum Tranche Amount of $[________________________].
(5) The Interest Period applies only to LIBOR Tranches and may be one, two,
three, or six months. Insert "N/A" for Prime Rate Tranches.
-2-
<PAGE> 72
The undersigned hereby certifies that the following statements are true on the
date hereof, and will be true on the date of the Proposed Tranche:
(a) the representations and warranties contained in the Credit
Agreement are correct in all material respects, before and after giving effect
to the Proposed Tranche/Tranches and the application of the proceeds therefrom,
as though made on the date of the Proposed Tranch/Tranches; and
(b) no Default has occurred and remains uncured, nor would result
from the Proposed Tranche.
Very truly yours,
TYLER CORPORATION
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
-3-
<PAGE> 73
[Execution Version]
Exhibit D
FORM OF
PROMISSORY NOTE
([Bank Name])
$[Amount] Houston, Texas [date]
For value received, the undersigned TYLER CORPORATION, a Delaware
corporation ("Borrower"), hereby promises to pay to the order of [Bank Name]
("Bank"), the principal amount of [Amount] ($[ ]) or, if less, the
aggregate outstanding principal amount of the Revolving Loan Advances (as
defined in the Credit Agreement referred to below) made by the Bank to the
Borrower, together with accrued but unpaid interest on the principal amount of
each such Revolving Loan Advance from the date of such Revolving Loan Advance
until such principal amount is paid in full, at such interest rates, and at
such times, as are specified in the Credit Agreement.
This Revolving Loan Note is one of the Revolving Loan Notes referred to
in, and is entitled to the benefits of, and is subject to the terms of, the
Credit Agreement dated as of February 13, 1998 (as the same may be modified
from time to time, the "Credit Agreement"), among the Borrower, the financial
institutions parties thereto ("Banks"), and NationsBank of Texas, N.A., as
agent for the Banks ("Agent"). Capitalized terms used herein but not defined
herein shall have the meanings specified by the Credit Agreement. The Credit
Agreement, among other things, (a) provides for the making of Revolving Loan
Advances by the Bank to the Borrower from time to time, the indebtedness of the
Borrower resulting from each such Revolving Loan Advance being evidenced by
this Revolving Loan Note, and (b) contains provisions for acceleration of the
maturity of this Revolving Loan Note upon the happening of certain events
stated in the Credit Agreement and for prepayments of principal prior to the
maturity of this Revolving Loan Note upon the terms and conditions specified in
the Credit Agreement.
Both principal and interest are payable to the Agent in the currency, at
the times, in the locations, and in the manner specified in the Credit
Agreement. The Bank shall record all Revolving Loan Advances and payments of
principal made under this Revolving Loan Note, but no failure of the Bank to
make such recordings shall affect the Borrower's repayment obligations under
this Revolving Loan Note.
<PAGE> 74
It is contemplated that because of prepayments there may be times when
no indebtedness is owed under this Revolving Loan Note. Notwithstanding such
prepayments, this Revolving Loan Note shall remain valid and shall be in force
as to Revolving Loan Advances made pursuant to the Credit Agreement after such
prepayments.
It is the intention of the Bank and the Borrower to conform strictly to
any applicable usury laws. Accordingly, the terms of the Credit Agreement
relating to the prevention of usury will be strictly followed.
THIS WRITTEN AGREEMENT AND THE CREDIT DOCUMENTS REPRESENT THE FINAL
AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
EXECUTED as of the date first above written.
TYLER CORPORATION
By:
---------------------------
Name:
-------------------------
Title:
------------------------
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<PAGE> 75
[Execution Version]
Exhibit E
FORM OF
ASSIGNMENT AND ACCEPTANCE
[date]
Reference is made to the Credit Agreement dated as of February 13, 1998
(as the same may be modified from time to time, the "Credit Agreement"), among
Tyler Corporation, a Delaware corporation (the "Borrower"), the financial
institutions parties thereto ("Banks"), and NationsBank of Texas, N.A., as
agent for the Banks ("Agent"). Capitalized terms used herein but not defined
herein shall have the meanings specified by the Credit Agreement.
Pursuant to the terms of the Credit Agreement, [ ]
("Assignor"), wishes to assign and delegate to [ ] ("Assignee"), [
]%(10) of its rights and obligations under the Credit Agreement. Therefore,
Assignor, Assignee, and the Agent agree as follows:
i. The Assignor hereby sells and assigns and delegates
to the Assignee, and the Assignee hereby purchases and
assumes from the Assignor, without recourse to the
Assignor and without representation or warranty except for
the representations and warranties specifically set forth
in clauses (i), (ii), and (iii) of this Assignment and
Acceptance, a [ ]% interest in and to all of the
Assignor's rights and obligations under the Credit
Agreement and the other Credit Documents as of the
Effective Date (as defined below), including such
percentage interest in the Assignor's Revolving Loan
Commitment, the Revolving Loan Advances owing to the
Assignor, the Assignor's ratable participation interest in
the Letters of Credit, and the Revolving Loan Note[s] held
by the Assignor.
ii. The Assignor (i) represents and warrants that,
prior to executing this Assignment and Acceptance, its
Revolving Loan Commitment is $[ ], the
aggregate outstanding principal amount of Revolving Loan
Advances owed by the Borrower to the Assignor is $[ ],
and its ratable share of
- --------------------
(1) Specify percentage to 4 decimal points.
<PAGE> 76
the Letter of Credit Exposure is $[ ]; (ii)
represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it
hereunder and that such interest is free and clear of any
adverse claim; (iii) makes no representation or warranty
and assumes no responsibility with respect to any
statements, warranties, or representations made in or in
connection with the Credit Agreement or any other Credit
Document or the execution, legality, validity,
enforceability, genuineness, sufficiency, or value of the
Credit Agreement or any other Credit Document or any other
instrument or document furnished pursuant thereto; (iv)
makes no representation or warranty and assumes no
responsibility with respect to the financial condition of
the Borrower or any Guarantor or the performance or
observance by the Borrower or any Guarantor of any of its
obligations under the Credit Agreement or any other Credit
Document or any other instrument or document furnished
pursuant thereto; and (v) attaches the Revolving Loan
Note[s] referred to in Section 1 above and requests that
the Agent exchange such Revolving Loan Note[s] for a new
Revolving Loan Note dated [ ] made by
[ ], in the principal amount of $[ ]
payable to the order of the Assignee[, and a new Revolving
Loan Note dated [ ], in the principal amount of
$[ ] payable to the order of Assignor].
iii. The Assignee (i) confirms that it has received a
copy of the Credit Agreement, together with copies of the
Financial Statements referred to in Section 4.7 thereof
and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision
to enter into this Assignment and Acceptance; (ii) agrees
that it will, independently and without reliance upon the
Agent, the Assignor, 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 the Credit Agreement or
any other Credit Document; (iii) appoints and authorizes
the Agent to take such action as agent on its behalf and
to exercise such powers under the Credit Agreement and any
other Credit Document as are delegated to the Agent by the
terms thereof, together with such powers as are reasonably
incidental thereto; (iv) agrees that it will perform all
of the obligations which by the terms of the Credit
Agreement or any other Credit Document are required to be
performed by it as a Bank; (v) specifies as its Applicable
Lending Office and address for notices the offices set
forth beneath its name on the signature pages hereof; (vi)
attaches the forms prescribed by the Internal Revenue
Service of the United States certifying as to the
Assignee's status for purposes of determining exemption
from United States
-2-
<PAGE> 77
withholding taxes with respect to all payments to be made
to the Assignee under the Credit Agreement and the
Revolving Loan Notes or such other documents as are
necessary to indicate that all such payments are subject
to such rates at a rate reduced by an applicable tax
treaty(2), and (vii) represents that it is an Eligible
Assignee.
iv. The effective date for this Assignment and
Acceptance shall be [ ] ("Effective Date")(3), and
following the execution of this Assignment and Acceptance,
the Agent will record it in the register.
v. Upon such recording, and as of the Effective Date,
(i) the Assignee shall be a party to the Credit Agreement
for all purposes, and, to the extent provided in this
Assignment and Acceptance, have the rights and obligations
of a Bank thereunder and (ii) the Assignor shall, to the
extent provided in this Assignment and Acceptance,
relinquish its rights (other than rights against the
Borrowers pursuant to Section 8.1 and 8.2 of the Credit
Agreement, which shall survive this Assignment and
Acceptance) and be released from its obligations (other
than obligations to the Agent pursuant to Section 7.5 and
7.6 of the Credit Agreement, which shall survive this
Assignment and Acceptance) under the Credit Agreement.
vi. Upon such recording, from and after the Effective
Date, the Agent shall make all payments under the Credit
Agreement and the Revolving Loan Notes in respect of the
interest assigned hereby (including all payments of
principal, interest, and fees) to the Assignee. The
Assignor and Assignee shall make all appropriate
adjustments for amounts earned under the Credit Agreement
and the Revolving Loan Notes for periods prior to the
Effective Date directly between themselves.
vii. This Assignment and Acceptance shall be governed
by, and construed and enforced in accordance with, the
laws of the State of Texas.
- --------------------
(2) If the Assignee is organized under the laws of a jurisdiction outside
the United States.
(3) See Section 8.5. Such date shall be at least three Business Days
after the execution of this Assignment and Acceptance.
-3-
<PAGE> 78
The parties hereto have caused this Assignment and Acceptance to be duly
executed as of the date first above written.
ASSIGNOR:
[ASSIGNOR]
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
ASSIGNEE:
[ASSIGNEE]
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
Notice Address:
Address:
-----------------------------
-------------------------------------
-------------------------------------
Attention:
---------------------------
Telephone:
--------------------------
Telecopy:
----------------------------
-4-
<PAGE> 79
Applicable Lending Office:
Address:
-----------------------------
-------------------------------------
-------------------------------------
Attention:
---------------------------
Telephone:
---------------------------
Telecopy:
----------------------------
AGENT:
NATIONSBANK OF TEXAS, N.A.,
as Agent
By:
----------------------------------
William T. Griffin, Jr.
Vice President
[ACKNOWLEDGED
this _____ day of _________________, ____.
BORROWER:
TYLER CORPORATION
By:
----------------------------------------
Name:
--------------------------------------
Title: ](4)
-------------------------------------
- --------------------
(4) The Borrower's acknowledgement of this Assignment and Acceptance is not
required.
-5-
<PAGE> 80
[Execution Version]
Exhibit F
CLOSING DOCUMENTS
Credit Provided by
NationsBank of Texas, N.A., as Agent
for Tyler Corporation
February 13, 1998
Agent = NationsBank of Texas, N.A.
Bank = NationsBank of Texas, N.A.
Borrower = Tyler Corporation
B&P = Bracewell & Patterson, L.L.P.
<TABLE>
<CAPTION>
Responsible
Party Credit Documents
--------------- ----------------
<S> <C> <C>
1. B&P Credit Agreement dated as of February 13, 1998,
among the Borrower, the Bank, and the Agent
providing for a $50,000,000 senior revolving credit
facility.
B&P Exhibit A - Form of Compliance Certificate
B&P Exhibit B - Form of Borrowing Request
B&P Exhibit C - Form of
Continuation/Conversion
Request
B&P Exhibit D - Form of Revolving Loan Note
B&P Exhibit E - Form of Assignment and
Acceptance
B&P Exhibit F - Closing Documents List
B&P Exhibit G - Form of Joinder Agreement
Borrower Exhibit H - Form of Acquisition EBITDA
Certificate
B&P Schedule I - Administrative Information
(Borrower and Bank)
Borrower Schedule II - Disclosures (Existing Other
Debt, Existing, and
Subsidiaries Litigation)
</TABLE>
<PAGE> 81
<TABLE>
<S> <C> <C>
2. B&P Promissory Note, dated as of February 13, 1998,
made by the Borrower and payable to the order of
Bank in the original principal amount of
$50,000,000.
3. B&P Fee Letter dated as of February 13, 1998, between
the Borrower and Agent. (Confidential)
4. B&P Pledge Agreement dated as of February 13, 1998,
made by Borrower in favor of the Agent, granting
the Agent a first priority perfected security
interest in all of the capital stock of certain
direct and indirect subsidiaries of Borrower.
Borrower Schedule I - Pledged Securities
5. B&P Guaranty Agreement dated as of February 13, 1998,
among subsidiaries of Borrower and Agent.
Corporate Documents
-------------------
6. Borrower Opinion of Gardere & Wynne, L.L.P. regarding the
existence and good standing of the Credit Parties,
the authorization of the Credit Documents by the
Credit Parties, the enforceability of the Credit
Documents, the absence of conflicting agreements,
the absence of litigation, and certain other
matters as described therein.
7. Borrower Certificate of Assistant Secretary of the Borrower
certifying such corporation's articles, bylaws, and
resolutions and such corporation's existence and
good standing in its state of incorporation and
qualification and good standing in material
jurisdictions where it conducts business.
Exhibit A - Articles/Certificates of
Incorporation
Exhibit B - Bylaws
Exhibit C - Resolutions
Exhibit D - Certificates of Existence and Good
Standing; Qualification and Good
Standing
8. Borrower Certificate of Assistant Secretary of the
Subsidiaries of the Borrower certifying each such
corporation's articles, bylaws, and resolutions and
</TABLE>
-2-
<PAGE> 82
each such corporation's existence and good standing
in its state of incorporation and qualification and
good standing in material jurisdictions where it
conducts business.
Exhibit A - Articles/Certificates of
Incorporation
Exhibit B - Bylaws
Exhibit C - Resolutions
Exhibit D - Certificates of Existence and Good
Standing; Qualification and Good
Standing
Collateral and Diligence Items
------------------------------
9. B&P UCC-1 Financing Statement executed by the Borrower
in favor of the Agent perfecting the Agent's
security interests under the Pledge Agreement.
10. Borrower UCC lien searches on the name of each Credit Party
in each jurisdiction where filing is necessary to
perfect security interests against such Credit
Party.
11. Borrower Stock Certificates of subsidiaries of Borrower
pledged pursuant to the Pledge Agreement with stock
power endorsed in blank.
12. Borrower Property and Liability Insurance policies and
certificates showing compliance with the insurance
requirements under the Credit Documents.
-3-
<PAGE> 83
[Execution Version]
Exhibit G
JOINDER AGREEMENT
([Subsidiary])
[Subsidiary], a [ ] corporation (the "Subsidiary"), hereby
agrees with (a) NationsBank of Texas, N.A., as Agent (the "Agent"), under the
Credit Agreement dated as of February 13, 1998, among Tyler Corporation, a
Delaware corporation, the financial institutions parties thereto, as Banks, and
the Agent (as modified from time to time, the "Credit Agreement," the
capitalized terms of which are used herein unless otherwise defined herein),
and (b) the other parties to the Guaranty dated as of [effective date] executed
in connection with the Credit Agreement, as follows:
In accordance with Section 5.19 of the Credit Agreement, the Subsidiary
hereby (a) joins the Guaranty as a party thereto and assumes all the
obligations of a Guarantor (as defined in the Guaranty) under the Guaranty, (b)
agrees to be bound by the provisions of the Guaranty as if the Subsidiary had
been an original party to the Guaranty, and (c) confirms that, after joining
the Guaranty as set forth above, the representations and warranties set forth
in the Credit Agreement and the Guaranty with respect to the Subsidiary are
true and correct in all material respects as of the date of this Joinder
Agreement.
For purposes of notices under the Guaranty, the notice address for the
Subsidiary is as follows:
______________________________
______________________________
______________________________
Attention: ________________
Telephone: ( )_________
Telecopy: ( )_________
THIS WRITTEN AGREEMENT AND THE CREDIT DOCUMENTS REPRESENT THE FINAL
AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
<PAGE> 84
THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
IN WITNESS WHEREOF this Joinder Agreement is executed and delivered as
of the ___ day of ________, 19__.
[SUBSIDIARY]
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
-2-
<PAGE> 85
[Bracewell & Patterson Draft 12/09/97]
Exhibit H
[date]
NationsBank of Texas, N.A., as Agent
for the financial institutions parties to the
Credit Agreement referred to below
700 Louisiana, 7th Floor
Houston, Texas 77002
Attention: Mr. William T. Griffin, Jr.
Ladies and Gentlemen:
The undersigned refers to the Credit Agreement dated as of [effective date] (as
modified, the "Credit Agreement"), among Tyler Corporation (the "Borrower"),
the financial institutions parties thereto, and NationsBank of Texas, N.A., as
Agent for such financial institutions ("Agent"), the defined terms of which are
used herein unless otherwise defined herein.
The Borrower intends to make an Acquisition (the "Proposed Acquisition"), and
in connection therewith hereby certifies the following to the Agent and the
Banks:
1. Attached hereto as Exhibit A is a summary of the Proposed
Acquisition, including a description of the business operations and assets to
be acquired, the consideration to be paid (including assumed indebtedness and
liabilities and Debt issued in connection therewith) and such summary fairly
presents the contemplated transaction.
2. Attached hereto as Exhibit B are historical financial statements
regarding the operations to be acquired in the Proposed Acquisition covering
the period of the most recently completed four fiscal quarters of the Borrower,
the Borrower's proposed adjustments to the historical financial statements
reflecting nonrecurring expenses and income, and historical proforma financial
statements for the operations to be acquired in the Proposed Acquisition giving
effect to such adjustments. The Borrower's proposed adjustments to the
historical financial statements and the historical proforma financial
statements have been
<PAGE> 86
prepared in accordance with the requirements of the Credit Agreement, including
Section 1.3 of the Credit Agreement.
3. Attached hereto as Exhibit C are consolidated historical proforma
financial statements for the Borrower for the most recently completed four
fiscal quarters of the Borrower giving effect to the Proposed Acquisition as
set forth in the historical proforma financial statements described in
paragraph 2 above. The consolidated historical proforma financial statements
have been prepared in accordance with the requirements of the Credit Agreement,
including Section 1.3 of the Credit Agreement.
4. Attached hereto as Exhibit D is a completed Compliance
Certificate duly certified by a Responsible Officer of the Borrower,
demonstrating the Borrower's compliance with the covenants contained in Section
5.5 of the Credit Agreement on a proforma basis after giving effect to the
Proposed Acquisition in accordance with the consolidated historical proforma
financial statements described in paragraph 3 above.
The Borrower represents and warrants that there are no contingent liabilities,
including environmental liabilities, litigation liabilities, and assumed
contractual liabilities, associated with the Proposed Acquisition that could
reasonably be expected to cause a Material Adverse Change.
The Borrower hereby requests the Agent's approval of the financial methods
employed by the Borrower in the preparation of the attached financial
statements and Compliance Certificate as required by Section 1.3(c) of the
Credit Agreement.
[The Borrower hereby further requests the following waivers and consents in
connection with the Proposed Acquisition:]
Very truly yours,
TYLER CORPORATION
By:
-------------------------
Name:
-----------------------
Title:
----------------------
-2-
<PAGE> 87
SCHEDULE 1
Administrative Information
BANK:
Mr. William T. Griffin, Jr.
Vice President
NationsBank of Texas, N.A.
700 Louisiana, 7th Floor
Houston, Texas 77002
Telephone: (713) 247-7457
Telecopier: (713) 247-7748
BORROWER:
Mr. Brian K. Miller
Vice President
Tyler Corporation
2121 San Jacinto Street
3200 San Jacinto Tower
Dallas, Texas 75201
Telephone: (214) 754-7800
Telecopier: (214) 754-7821
<PAGE> 1
EXHIBIT 10.15
[TYLER CORPORATION LETTERHEAD]
October 8, 1997
Mr. C. A. Rundell, Jr.
Tyler Corporation
2121 San Jacinto Street, Suite 3200
Dallas, Texas 75201
Dear C. A.:
This letter is to confirm the basis upon which you agree to serve as
President and Chief Executive Officer of Tyler Corporation ("Tyler").
1. Salary. $17,500 per month.
2. 125,000 Shares. You will also be issued, effective the date
hereof, 125,000 shares of Tyler common stock, which you will
forfeit and return to Tyler, to the extent your employment
with Tyler terminates, as follows:
<TABLE>
<CAPTION>
If your employment
terminates: You forfeit:
---------- -----------
<S> <C>
Prior to April 8, 1998 125,000 shares
After April 7, 1998
and prior to October 8, 1998 100,000 shares
After October 7, 1998,
and prior to April 8, 1999 75,000 shares
After April 7, 1999,
and prior to October 8, 1999 50,000 shares
After October 7, 1999,
and prior to April 8, 2000 25,000 shares
After April 7, 2000 0 shares
</TABLE>
<PAGE> 2
October 8, 1997
Mr. C.A. Rundell, Jr.
Page 2
If there is a "change of control" of Tyler, as defined in Section 10
of your stock option agreement of even date, while your employment
with Tyler continues you shall not have any further obligation to
forfeit or return any of the shares.
3. Bonus. For 1998 and thereafter, you will participate in a
bonus plan to be developed by the Company.
4. Options. You will receive options for 350,000 shares of Tyler
common stock at $3.6875 per share, the closing price on
October 8, 1997, of which (i) 132,199 will be Incentive Stock
Options ("ISO's") of which 23,727 will vest and be exercisable
on January 1, 1998, and 27,118 will vest and be exercisable on
each of January 1, 1999-2002, and (ii) 217,801 will be
non-qualified stock options ("NSO's"), of which 43,561 will
vest and be exercisable on October 8, 1997, and 43,560 will
vest and be exercisable on each of October 8, 1998 2001. All
shares shall vest in the event of a change of control of Tyler
as defined in Section 10 of your stock option agreement of
even date.
5. Office. Your office will be located at the offices of Tyler in
Dallas, Texas.
6. Position. You will serve as President and Chief Executive
Officer of Tyler and will devote a majority of your working
time to the performance of your duties in that capacity. As a
compensated employee, you will not be paid for serving as a
director of Tyler or on any committees of the board of
directors of Tyler.
7. Perks. Tyler will pay for your initiation fee and dues at the
Petroleum Club in Dallas, Texas.
8. Secretary. It is understood that your secretary will be Pat
Dugan, and Tyler will pay $25,000 of her compensation. You
will pay the remainder of her compensation, with the
understanding that she will be handling personal and other
business matters for you.
9. Effective Date. This Agreement is effective October 8, 1997,
and supersedes all prior employment agreements.
<PAGE> 3
October 8, 1997
Mr. C.A. Rundell, Jr.
Page 3
If the foregoing reflects your understanding of the agreement,
please sign below where indicated.
Yours very truly,
/s/ LOUIS A. WATERS,
Louis A. Waters,
Chairman of the Board
Agreed and Accepted:
/s/ C.A. RUNDELL, JR.
- --------------------------
C. A. Rundell, Jr.
Date: October 8, 1997
Copy to: Directors of the Company
<PAGE> 1
EXHIBIT 10.16
[TYLER CORPORATION LETTERHEAD]
December 1, 1997
PRIVATE AND CONFIDENTIAL VIA HAND DELIVERY
Mr. Brian K. Miller
6452 Waggoner Drive
Dallas, Texas 75230
Dear Brian:
We would like to offer you employment as Vice President and Chief Accounting
Officer for Tyler Corporation as outlined below:
1. BEGINNING SALARY -- $140,000 per annum, starting December 1, 1997.
2. BONUS - Full eligibility into the new Tyler bonus plan to be implemented
this calendar year with cash bonuses ranging from 40%-50% of base salary
when Tyler and or you reach established goals of earnings, return on
assets, percentage growth in earnings - whatever goals and standards are
finally adopted or agreed by Tyler.
3. OPTIONS - Tyler will grant you an option for 50,000 shares at the
closing price on December 1, 1997. These options will vest over five
years at the rate of 20% per year.
4. CHANGE OF CONTROL - All unvested options would become immediately vested
and exercisable in the event of a change in control of Tyler.
5. CORPORATE BENEFITS - Normal benefits for corporate officers of Tyler,
including insurance, reimbursement of reasonable business expenses,
appropriate professional fees and dues, continuing professional
education programs, company long distance calling card and credit card.
6. START DATE - You will start to work on a part-time basis the week of
December 1.
7. REPORTING - In your position you will report to me at this time,
although Tyler's present intention is to hire a Chief Financial Officer,
to whom you would then report.
<PAGE> 2
Mr. Brian K. Miller
December 1, 1997
Page Two
8. SEVERANCE - If you are terminated by Tyler for any reason other than
fraud, theft, gross negligence, or personal malfeasance, you will
receive a lump sum cash severance payment equal to one year, then
current, base salary in release of all your claims against the Company.
If you were to be terminated as a result of a change in control, you
would receive a lump sum cash severance of one year's salary also in
release of all your claims against the Company. In either event of
termination, you would receive medical benefits, paid by the Company, up
to twelve (12) months, or a shorter period should you secure comparable
employment elsewhere.
Brian, if you have any questions, I will be happy to discuss them with you.
Sincerely,
/s/ C. A. RUNDELL, JR.
C. A. Rundell, Jr.
Agreed and Accepted
/s/ BRIAN K. MILLER
- ----------------------
Brian K. Miller
December 1, 1997
<PAGE> 1
EXHIBIT 10.17
OFFER PROPOSAL FOR HAROLD PARKISON
AS CEO OF FOREST CITY AUTO PARTS
1. Cash Compensation
<TABLE>
<S> <C> <C>
Salary - $200,000
Car Allowance - 8,500
--------
Total $208,500
</TABLE>
2. Bonus - Parkison will be eligible for the regular Tyler incentive
bonus of 60% of his salary in a year which 30% RONA is achieved.
Since Forest City Auto Parts is below the 30% RONA threshold today, a
ramp-up bonus system as shown below will allow Parkison to receive a
full 60% bonus at less than 30% RONA during the first two years of his
employment. Parkison will also be eligible for a 30% of salary bonus at
a lower level of performance as shown. A 30% bonus ($60,000) is
guaranteed for 1997.
<TABLE>
<CAPTION>
60% of Salary 30% Of Salary
------------------ -------------------
<S> <C> <C>
1997 20% RONA Guaranteed
1998 25% RONA 22% RONA
1999 30% RONA 25% RONA
2000 30% RONA 25% RONA
</TABLE>
3. If during the first three years of Parkison's employment there is a
change of control of Forest City or Tyler Corporation which leaves him
unemployed or if he is terminated for any reason other than fraud,
theft, or personal malfeasance, Parkison will receive a cash payment
of $200,000.
4. A moving allowance to cover transportation of household goods,
disposition of current residence, acquisition of new residence, and
anything else which dislocation causes, including lost bonuses or
other lost benefits from present employer, of $75,000 will be paid.
Forest City will pay $15,000 of this amount on the first day of
employment and $60,000 upon Parkison's moving his family to Cleveland.
This payment will be paid directly to Parkison and will be the only
reimbursement for any type of dislocation or relocation costs.
Parkison will then pay all of the above costs out of his own pocket.
5. Options - A ten-year 50,000-share option exercisable 1/4th on the
first anniversary of Parkison's joining the company, and 1/4th on each
successive anniversary until his fourth anniversary. On the fourth
anniversary of Parkison's employment, therefore, the entire
50,000-share option will be vested. If during the four-year period
there is a change of control of Tyler Corporation or a change of
control of Forest City Auto Parts, the entire 50,000 shares vest on
the day of the change of control.
6. All regular benefits of Forest City Auto Parts, including health
insurance and profit sharing will be available to Parkison on the same
basis that they are to all other executives of Forest City Auto Parts.
<PAGE> 2
7. Forest City will provide $200,000 of term life insurance.
8. An additional bonus will be paid to Parkison if Forest City exceeds
the 1997 planned operating profit of $3.4 million. To the extent that
profit exceeds $3.4 million, Parkison will receive an additional bonus
of 30% of all operating profit dollars over $3.4 million. For example,
if Forest City earned $4.4 million, the bonus would be (assumes 20%
RONA test is met):
<TABLE>
<S> <C> <C>
60% of $ 200,000 = $120,000 Normal Bonus
30% of $1,000,000 = 300,000 Extra Bonus
--------
$420,000 Total 1997 Bonus
</TABLE>
9. Begin work on February 3, 1997, or earlier if possible.
January 3, 1997
<PAGE> 1
EXHIBIT 21
SIGNIFICANT SUBSIDIARIES
<TABLE>
<CAPTION>
Place of
Name Incorporation
---- -------------
<S> <C>
Tyler Corporation Delaware
Forest City Auto Parts Delaware
</TABLE>
<PAGE> 1
EXHIBIT 23
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8 No. 33-34809) pertaining to the Tyler Corporation Stock Option Plan of
our report dated March 6, 1998, with respect to the consolidated financial
statements of Tyler Corporation included in the Annual Report (Form 10-K) for
the year ended December 31, 1997.
ERNST & YOUNG LLP
Dallas, Texas
March 23, 1998
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> DEC-31-1997
<CASH> 8,877,000
<SECURITIES> 0
<RECEIVABLES> 243,000
<ALLOWANCES> 42,000
<INVENTORY> 22,901,000
<CURRENT-ASSETS> 36,279,000
<PP&E> 10,339,000
<DEPRECIATION> 4,759,000
<TOTAL-ASSETS> 54,895,000
<CURRENT-LIABILITIES> 11,787,000
<BONDS> 0
0
0
<COMMON> 233,000
<OTHER-SE> 37,785,000
<TOTAL-LIABILITY-AND-EQUITY> 54,895,000
<SALES> 76,429,000
<TOTAL-REVENUES> 0
<CGS> 43,947,000
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 85,000
<INCOME-PRETAX> 1,368,000
<INCOME-TAX> 197,000
<INCOME-CONTINUING> 1,171,000
<DISCONTINUED> (4,519,000)
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (3,348,000)
<EPS-PRIMARY> (.16)
<EPS-DILUTED> (.16)
</TABLE>
