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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM 10-Q
[X]QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the quarterly period ended FEBRUARY 28, 1998
OR
[ ]TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the transition period from to
Commission file number 0-20548
FRITZ COMPANIES, INC.
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(Exact name of registrant as specified in its charter)
Delaware 94-3083515
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(State or other jurisdiction (IRS Employer Identification Number)
of incorporation or organization)
706 Mission Street, Suite 900, San Francisco, California 94103
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (415) 904-8360
Not applicable
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(Former name, former address and former fiscal year if changed from last
report.)
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.[X] Yes [ ] No
As of February 28, 1998 there were 35,838,659 shares of common stock
outstanding.
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FRITZ COMPANIES, INC. FORM 10-Q
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PART I. FINANCIAL INFORMATION PAGE
<S> <C> <C>
Item 1. Financial Statements:
Independent Accountants' Review Report 3
Condensed Consolidated Balance Sheets as of February 28,
1998 and May 31, 1997 4
Condensed Consolidated Statements of Operations for the three
months and nine months ended February 28, 1998 and 1997 5
Condensed Consolidated Statements of Cash Flows for the nine
months ended February 28, 1998 and 1997 6
Notes to Condensed Consolidated Financial Statements 7
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations 9
PART II. OTHER INFORMATION 13
SIGNATURES 15
EXHIBIT INDEX 16
</TABLE>
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FRITZ COMPANIES, INC. FORM 10-Q
Independent Accountants' Review Report
Board of Directors and Stockholders
Fritz Companies, Inc.
We have reviewed the accompanying condensed consolidated balance sheet
of Fritz Companies, Inc. and subsidiaries (the Company) as of February
28, 1998 and the related condensed consolidated statements of operations
and cash flows for the three and nine month periods ended February 28,
1998 and 1997 included in the Company's Form 10-Q. These condensed
consolidated financial statements are the responsibility of the
Company's management.
We conducted our reviews in accordance with standards established by the
American Institute of Certified Public Accountants. A review of interim
financial information consists principally of applying analytical
procedures to financial data and making inquiries of persons responsible
for financial and accounting matters. It is substantially less in scope
than an audit conducted in accordance with generally accepted auditing
standards, the objective of which is the expression of an opinion
regarding the financial statements taken as a whole. Accordingly, we do
not express such an opinion.
Based on our reviews, we are not aware of any material modifications
that should be made to the condensed consolidated financial statements
referred to above for them to be in conformity with generally accepted
accounting principles.
We have previously audited, in accordance with generally accepted
auditing standards, the consolidated balance sheet of Fritz Companies,
Inc. and subsidiaries as of May 31, 1997, and the related consolidated
statements of operations, stockholders' equity, and cash flows for the
year then ended (not presented herein); and in our report dated July 16,
1997, we expressed an unqualified opinion on those consolidated
financial statements. In our opinion, the information set forth in the
accompanying condensed consolidated balance sheet as of May 31, 1997, is
fairly stated, in all material respects, in relation to the consolidated
balance sheet from which it has been derived.
/s/ KPMG PEAT MARWICK LLP
---------------------------
KPMG Peat Marwick LLP
San Francisco, California
March 24, 1998
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FRITZ COMPANIES, INC. FORM 10-Q
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS:
CONDENSED CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT PER SHARE AMOUNT)
(UNAUDITED)
<TABLE>
<CAPTION>
February 28, May 31,
1998 1997
-------- --------
ASSETS
<S> <C> <C>
CURRENT ASSETS:
Cash and equivalents $ 43,336 $ 43,368
Accounts receivable, net of allowance for
doubtful accounts of $25,744 in 1998 and $22,292 in 1997 413,198 414,550
Deferred income taxes 16,384 10,519
Prepaid expenses and other assets 25,730 27,978
-------- --------
Total current assets 498,648 496,415
-------- --------
PROPERTY AND EQUIPMENT - NET 91,933 100,879
-------- --------
OTHER ASSETS:
Intangibles, net of accumulated amortization of $19,411
in 1998 and $16,204 in 1997 111,730 110,691
Other assets 16,819 15,531
-------- --------
Total other assets 128,549 126,222
-------- --------
TOTAL ASSETS $719,130 $723,516
======== ========
</TABLE>
<TABLE>
<CAPTION>
LIABILITIES AND STOCKHOLDERS' EQUITY
<S> <C> <C>
CURRENT LIABILITIES:
Current portion of long-term obligations and short-term
borrowings $ 13,571 $ 37,200
Accounts payable 270,668 276,228
Accrued liabilities 74,017 73,094
Income tax payable 14,206 7,148
-------- --------
Total current liabilities 372,462 393,670
-------- --------
LONG-TERM OBLIGATIONS 93,013 84,884
DEFERRED INCOME TAXES 200 1,243
OTHER LIABILITIES 10,233 9,024
-------- --------
TOTAL LIABILITIES 475,908 488,821
-------- --------
</TABLE>
<TABLE>
<CAPTION>
COMMITMENTS AND CONTINGENCIES
<S> <C> <C>
STOCKHOLDERS' EQUITY
Common stock: par value $.01 per share;
60,000 shares authorized, 35,839 shares
issued and outstanding, (35,445 shares
issued and outstanding in 1997) 358 354
Additional paid-in capital 129,880 124,424
Retained earnings 126,222 112,895
Cumulative foreign currency translation adjustments (13,238) (2,978)
--------- ---------
Total stockholders' equity 243,222 234,695
--------- ---------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $ 719,130 $ 723,516
========= =========
</TABLE>
SEE ACCOMPANYING INDEPENDENT ACCOUNTANTS' REVIEW REPORT AND
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FRITZ COMPANIES, INC. FORM 10-Q
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS.
FRITZ COMPANIES, INC.
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
February 28, February 28,
---------------------- ---------------------
<S> <C> <C> <C> <C>
1998 1997 1998 1997
-------- -------- -------- --------
REVENUE $307,210 $270,341 $977,520 $847,295
FREIGHT CONSOLIDATION COSTS 174,928 152,370 560,835 468,830
-------- -------- -------- --------
NET REVENUE 132,282 117,971 416,685 378,465
-------- -------- -------- --------
OPERATING EXPENSES
Salaries and related costs 81,336 80,048 244,805 225,554
General and administrative 49,274 62,651 152,939 150,577
-------- -------- -------- --------
Total operating expenses 130,610 142,699 397,744 376,131
-------- -------- -------- --------
INCOME (LOSS) FROM OPERATIONS 1,672 (24,728) 18,941 2,334
OTHER INCOME (EXPENSE) 1,478 (1,166) 657 (2,003)
-------- -------- -------- --------
INCOME (LOSS) BEFORE TAX EXPENSE 3,150 (25,894) 19,598 331
INCOME TAX EXPENSE (BENEFIT) 514 (9,063) 6,271 116
-------- -------- -------- --------
NET INCOME (LOSS) $ 2,636 $(16,831) $ 13,327 $ 215
======== ======== ======== ========
Weighted average shares outstanding -
Basic 35,818 35,148 35,733 35,078
======== ======== ======== ========
Earnings (Loss) per share - Basic $ 0.07 $ (0.48) $ 0.37 $ 0.01
======== ======== ======== ========
Weighted average shares outstanding -
Diluted 36,308 35,148 36,122 35,604
======== ======== ======== ========
Earnings (Loss) per share - Diluted $ 0.07 $ (0.48) $ 0.37 $ 0.01
======== ======== ======== ========
</TABLE>
SEE ACCOMPANYING INDEPENDENT ACCOUNTANTS' REVIEW REPORT AND
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS.
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FRITZ COMPANIES, INC. FORM 10-Q
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
(UNAUDITED)
<TABLE>
<CAPTION>
Nine Months Ended
----------------------------
February 28, February 28,
1998 1997
------------ ------------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income $ 13,327 $ 215
Adjustments to reconcile net income to net cash
provided by (used in) operating activities:
Depreciation and amortization 20,136 18,286
Deferred income taxes (6,629) (3,563)
Stock Compensation 3,398 2,363
Other 2,181 625
Effect of changes in:
Receivables 7,436 (6,952)
Prepaid expenses and other current assets 2,366 (1,009)
Payables and accrued liabilities (4,136) (61,934)
-------- --------
Net cash provided by (used in) operating activities 38,079 (51,969)
-------- --------
CASH FLOWS FROM INVESTING ACTIVITIES:
Capital expenditures (16,275) (34,321)
Acquisitions, new and contingent (3,308) (12,509)
Acquisitions, debt (11,259) (8,736)
Other 3,203 2,168
-------- --------
Net cash used in investing activities (27,639) (53,398)
-------- --------
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from issuance of long-term obligations 10,254 5,160
Current portion of long-term obligations repaid (2,122) (9,886)
Net (decrease) increase in short-term borrowings (14,957) 63,297
Proceeds from stock options exercised 510 2,123
Other (830) 304
-------- --------
Net cash provided by (used in) financing activities (7,145) 60,998
-------- --------
Foreign currency translation effect on cash (3,327) (1,069)
-------- --------
DECREASE IN CASH AND EQUIVALENTS (32) (45,438)
CASH AND EQUIVALENTS AT BEGINNING OF PERIOD 43,368 86,461
-------- --------
CASH AND EQUIVALENTS AT END OF PERIOD $ 43,336 $ 41,023
======== ========
OTHER CASH FLOW INFORMATION:
Income taxes paid $ 4,095 $ 5,919
======== ========
Interest paid $ 5,074 $ 5,396
======== ========
Noncash investing and financing activities in
connection with acquisitions:
Receivables assumed $ 6,084 $ 1,489
Payables and accrued liabilities assumed 6,557 2,189
Capital stock issued 1,552 --
</TABLE>
SEE ACCOMPANYING INDEPENDENT ACCOUNTANTS' REVIEW REPORT AND
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS.
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FRITZ COMPANIES, INC. FORM 10-Q
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
----------------------------------------------------
1. GENERAL
The accompanying condensed consolidated financial statements of Fritz
Companies, Inc. and subsidiaries (the Company) for the three and nine months
ended February 28, 1998 and 1997 are unaudited and, in the opinion of
management, contain all adjustments, consisting only of normal and recurring
adjustments, necessary for a fair presentation of the results of such
periods. Certain prior year amounts have been reclassified to conform to the
current year's financial statement presentation.
The significant accounting policies followed by the Company are
described in Note 1 to the audited consolidated financial statements for the
year ended May 31, 1997. In accordance with SEC regulations, certain
information and footnote disclosures normally included in the annual
financial statements prepared in accordance with generally accepted
accounting principles have been condensed or omitted for the purposes of the
condensed consolidated interim financial statements. The condensed
consolidated financial statements should be read in conjunction with the
consolidated financial statements, including the notes thereto, for the year
ended May 31, 1997 included in the Company's Form 10-K filed on July 31,
1997. The results of operations for the nine months ended February 28, 1998
may not necessarily be indicative of the results to be expected for the full
year.
The Company has adopted the provisions to Statement of Financial
Accounting Standards No. 128, "Earnings Per Share" effective December 1,
1997. The statement requires the calculation and disclosure of basic and
diluted earnings per share as opposed to primary and fully diluted
calculations required under Accounting Principles Board Opinion No. 15,
"Earnings Per Share" and related pronouncements. All prior period earnings
per share and average shares outstanding data have been restated to reflect
the adoption of this statement. Basic and diluted earnings per share are
presented below.
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
FEBRUARY 28, FEBRUARY 28,
(in thousands of dollars, except per share data)
<S> <C> <C> <C> <C>
1998 1997 1998 1997
-------- -------- -------- --------
Basic:
Net income (Loss) $ 2,636 $(16,831) $13,327 $ 215
Weighted-average number of common shares
outstanding 35,818 35,148 35,733 35,078
Basic earnings per common share $ 0.07 $ (0.48) $ 0.37 $ 0.01
Diluted:
Net income (Loss) $ 2,636 $(16,831) $13,327 $ 215
Shares:
Weighted-average number of common shares 35,818 35,148 35,733 35,078
outstanding
Potentially dilutive common shares 490 -- 389 526
------- -------- ------- -------
Total shares 36,308 35,148 36,122 35,604
Diluted earnings per weighted-average
common share $ 0.07 $ (0.48) $ 0.37 $ 0.01
</TABLE>
Options to purchase 0.4 million shares of common stock ranging from
$13.63 to $28.63 per share were outstanding as of February 28, 1998. Options
to purchase 0.6 million shares of common stock ranging from $17.75 to $41.50
per share were outstanding as of February 28, 1997. These options were not
included in the computation of diluted earning per share because the
options' exercise prices were greater than the average market price of the
common shares.
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FRITZ COMPANIES, INC. FORM 10-Q
In June 1997, the Financial Accounting Standards Board issued Statement
of Financial Accounting Standards No. 130, "Reporting Comprehensive Income,"
which requires enterprises to report, by major component and in total, all
changes in equity from non-owner sources; and Statement of Financial
Accounting Standards No. 131, "Disclosures about Segments of an Enterprise
and Related Information," which establishes annual and interim reporting
standards for operating segments and related disclosures about products,
services, geographic areas and major customers.
Both standards are effective for the Company's fiscal year 1999. The
effect of these statements will be limited to the form and content of the
Company's disclosures and are not expected to impact the Company's results
of operations, cash flow or financial position.
2. COMMON STOCK
The increase in common stock issued and paid in capital was primarily
due to shares issued upon exercise of options, restricted stock grants,
issuance of shares under the employee stock purchase plan and shares issued
for acquisitions.
3. INCOME TAXES
Income tax expense for the nine months ended February 28, 1998 consisted
of approximately $12.9 million of current tax provision and $6.6 million of
deferred tax benefit. The Company's historical tax rate was based on a 35%
world wide rate. Beginning December 1, 1997, the Company's year to date tax
provision reflects the results of a recent global tax review.
4. ACQUISITIONS
The Company recorded approximately $5.5 million and $16.0 million for
the nine months ended February 28, 1998 and 1997, respectively, of
additional purchase price relating to achievement of specified net revenue
or pre-tax income levels of certain prior acquisitions. At February 28,
1998, the remaining maximum payments in connection with acquisitions
providing a contingent purchase price is approximately $4.3 million. There
is no certainty these businesses will achieve the revenue or profit levels
to require these contingent payments.
The company acquired a freight forwarder with seven offices located in
the United States. The Company issued 0.1 million shares of common stock
valued at $1.6 million for 100% of the outstanding common stock of the
acquired company. Net obligations in relation to acquisitions decreased $8.7
million.
5. CONTINGENCIES
The Company is party to routine litigation incident to its business,
primarily claims for goods lost or damaged in transit or improperly shipped.
Most of the lawsuits in which the Company is the defendant are covered by
insurance and are being defended by the Company's insurance carriers.
In 1996, a total of six complaints were filed (three in federal court
and three in state court of California) against the Company and certain of
its then officers and directors, purporting to be brought on behalf of a
class of purchasers or holders of the Company's stock between August 28,
1995 and July 23, 1996. The complaints allege various violations of Federal
Securities law and California Corporate Securities law in connection with
prior disclosures made by the Company and seek unspecified damages.
The three class action suits filed against the Company in state court
were dismissed with prejudice by the Superior Court of California for the
County of San Francisco on grounds the claims asserted under the California
Corporate Securities law and common law fraud were not
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FRITZ COMPANIES, INC. FORM 10-Q
legally tenable. One of the dismissals has been reversed on appeal,
permitting the plaintiff to file an amended complaint. At this time no
amended complaint has yet been filed.
The three class action suits filed against the Company in federal court
were consolidated into one suit which was dismissed with prejudice, finding
that plaintiffs had not alleged any statement that was false and misleading
in violation of the federal securities laws.
The Company is unable to predict the ultimate outcome of these suits and
it is possible the outcome could have a significant adverse impact on the
Company's future consolidated results of operations. However, the Company
believes the ultimate outcome of these matters will not have a significant
adverse impact on the Company's consolidated financial position or its
consolidated results of operations.
6. SUBSEQUENT EVENT
On March 27, 1998, the Company entered into a new $100 million syndicated
multi-currency credit facility, maturing March 27, 2001. This Credit
Facility replaces the Company's current $60 million facility which was to
mature December 15, 1998. The purpose of the facility is to provide letters
of credit and working capital not covered by internally generated funds.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
OVERVIEW
The following discussion is applicable to the Company's financial
condition and results of operations for the three months and nine months
ended February 28, 1998 and 1997. See Note 1 of Notes to Condensed
Consolidated Financial Statements.
RESULTS OF OPERATIONS
The following table provides the revenue, net revenue and percentages
attributable to the Company's principal logistics services during the
periods indicated (in thousands, except percent):
<TABLE>
<CAPTION>
THREE MONTHS ENDED FEBRUARY 28, NINE MONTHS ENDED FEBRUARY 28,
----------------------------------------- ----------------------------------------
1998 % 1997 % 1998 % 1997 %
---- - ---- - ---- - ---- -
<S> <C> <C> <C> <C> <C> <C> <C> <C>
REVENUE:
Customs brokerage $ 38,802 12.6 $ 36,760 13.6 $121,658 12.4 $115,434 13.6
Ocean freight forwarding 89,333 29.1 81,301 30.1 284,500 29.1 249,903 29.5
Airfreight forwarding 133,369 43.4 122,153 45.2 433,628 44.4 382,836 45.2
Warehousing and
distribution 45,706 14.9 30,127 11.1 137,734 14.1 99,122 11.7
-------- ----- -------- ----- -------- ----- -------- -----
Total revenue $307,210 100.0 $270,341 100.0 $977,520 100.0 $847,295 100.0
======== ===== ======== ===== ======== ===== ======== =====
NET REVENUE:
Customs brokerage $ 38,802 29.3 $ 36,760 31.2 $121,658 29.2 $115,434 30.5
Ocean freight forwarding 28,313 21.4 26,338 22.3 90,175 21.7 80,087 21.2
Airfreight forwarding 37,946 28.7 33,125 28.1 117,583 28.2 108,010 28.5
Warehousing and
distribution 27,221 20.6 21,748 18.4 87,269 20.9 74,934 19.8
-------- ----- -------- ----- -------- ----- -------- -----
Total net revenue $132,282 100.0 $117,971 100.0 $416,685 100.0 $378,465 100.0
======== ===== ======== ===== ======== ===== ======== =====
</TABLE>
THREE MONTHS ENDED FEBRUARY 28, 1998 COMPARED WITH THREE MONTHS ENDED
FEBRUARY 28, 1997
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FRITZ COMPANIES, INC. FORM 10-Q
Revenue and Net Revenue: For the three months ended February 28, 1998,
revenue increased 13.6% to $307.2 million from $270.3 million reported in
the prior year and net revenue increased 12.1% to $132.3 million from $118.0
million reported in the prior year. All of the Company's principal service
areas reported revenue growth.
Customs brokerage revenue increased 5.6% to $38.8 million from $36.8
million reported in the prior year. The number of United States Customs
entries filed by the Company increased approximately 21% to 0.63 million
from 0.52 million for the same period in the prior year. Management believes
that Asian currency devaluation contributed to a growth in imports which in
turn contributed to the increase in United States customs entries. In
certain portions of the Customs brokerage business, price competition
remained strong resulting in downward pressure on prices.
Ocean freight forwarding revenue and net revenue increased 9.9% and
7.5%, respectively, due to increased shipping volumes from existing and new
customers. Gross margin (net revenue as a percentage of revenue) decreased
to 31.7% from 32.4% reported in the prior year. The Asian currency
devaluation improved shipping volume to the United States. Eastbound carrier
capacity and demand has remained strong, while westbound carrier capacity
and demand has weakened. The overall impact has resulted in a decrease in
gross margin. Non-vessel operating common carrier shipments as a percentage
of total shipments increased which contributed to the growth in revenue and
the decrease in overall gross margin.
Airfreight forwarding revenue and net revenue increased 9.2% and 14.6%,
respectively, due to increased shipments and total chargeable weight of
cargo shipped. The increase in the number of shipments was primarily due to
an increase in business by existing customers. Gross margin increased to
28.5% from 27.1% in the prior year. A significant portion of the increase in
revenue, net revenue and gross margin is due to increased United States
domestic airfreight services.
Warehousing and distribution revenue and net revenue increased 51.7% and
25.2%, respectively, due to further penetration of existing market niches. A
significant portion of the increased revenue was applicable to European
trucking operations. Management believes that the strength of Latin America
and United States economies has increased warehouse services related to
airfreight and ocean shipments. The Company's focus on pricing structure has
contributed to the net revenue growth.
Operating Expenses: Operating expenses decreased 8.5% to $130.6 million
from $142.7 million reported in the prior year. Salaries and related costs
increased primarily due to an increase in the number of employees resulting
from continued expansion in North America, Europe, Asia and Latin America to
support greater shipping volumes. The growth in the number of employees
supporting shipping volumes was partially offset by a decrease in the number
of employees required for administrative support. Salaries and related costs
as a percentage of net revenue were 61.5% compared to 67.9% reported in the
prior year.
General and administrative expenses decreased 21.4% to $49.3 million
from $62.7 million reported in the prior year. The decrease was mainly
attributable to a $17.0 million increase in the allowance for doubtful
accounts in the prior year. After deducting this adjustment, general and
administrative expenses increased 7.9%. Excluding the adjustment, the
increase is due to supporting greater shipping volumes, higher occupancy
capacity costs, additional provision for doubtful accounts and an increase
in information systems costs. General and administrative expenses as a
percentage of net revenue were 37.2% compared to 53.1% (38.7%, netting $17.0
million adjustment) reported in the prior year.
Other Income and Expense: Due to the strengthening of the U.S. Dollar,
currency gains were realized by certain international operations, where
certain trade receivables were denominated in U.S. Dollars.
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FRITZ COMPANIES, INC. FORM 10-Q
Substantially all of the Company's services experienced some pressure on
prices and margins due to the competitive environment. The Company continues
to focus on improving productivity, efficiency and providing value added
customer service at competitive prices.
NINE MONTHS ENDED FEBRUARY 28, 1998 COMPARED WITH NINE MONTHS ENDED
FEBRUARY 28, 1997
Revenue and Net Revenue: For the nine months ended February 28, 1998,
revenue increased 15.4% to $977.5 million from $847.3 million reported in
the prior year and net revenue increased 10.1% to $416.7 million from $378.5
million reported in the prior year. All of the Company's principal service
areas reported revenue growth.
Customs brokerage revenue increased 5.4% to $121.7 million from $115.4
million reported in the prior year. The number of United States Customs
entries filed by the Company increased approximately 18.8% to 1.9 million
from 1.6 million for the same period in the prior year. The increase in
revenue and number of United States Customs entries filed was caused
principally by increased Canadian border activity, expansion of business
with existing customers, continued NAFTA incentives and the Asian currency
devaluation. During the first quarter, the UPS strike caused certain
shippers to use alternative courier services, which provided increased
Customs brokerage volume to the Company.
Ocean freight forwarding revenue and net revenue increased 13.8% and
12.6%, respectively, due to increased shipping volumes from existing and new
customers. The increase in ocean volumes was caused principally by the Asian
currency devaluation, increased non-vessel operating common carrier
shipments and limited airline capacity in certain tradelanes. Gross margin
decreased to 31.7% from 32.0% reported in the prior year. Carrier capacity
in certain tradelanes, in which the Company has committed capacity, has
increased at a faster rate than shipping volumes, which has resulted in
downward pressure on pricing levels.
Airfreight forwarding revenue and net revenue increased 13.3% and 8.9%,
respectively, due to increased shipments and total chargeable weight of
cargo shipped. The increase in the number of shipments was provided
primarily from existing customers. Gross margin decreased to 27.1% from
28.2% in the prior year. The decrease in gross margin was primarily due to
higher transportation costs which could not be passed to customers, and was
partially offset by increased United States domestic airfreight services.
Warehousing and distribution revenue and net revenue increased 39.0% and
16.5%, respectively, due principally to increased demand from existing
integrated logistic customers, continued expansion of overseas and domestic
services, expansion of warehouse facilities, and strong Latin American and
United States economies. A significant portion of the increased revenue was
applicable to European trucking operations.
Operating Expenses: Operating expenses increased 5.7% to $397.7 million
from $376.1 million reported in the prior year. Salaries and related costs
increased due to growth in the number of personnel to support the Company's
continued expansion of overseas and domestic services. Salaries and related
costs as a percentage of net revenue were 58.8% compared to 59.6% reported
in the prior year.
General and administrative expenses increased 1.5% to $152.9 million
from $150.6 million reported in the prior year. The small increase was
mainly caused by a $17.0 million increase to the allowance for doubtful
accounts in the prior year. After deducting this adjustment, general and
administrative expenses increased 14.4%. Excluding the adjustment, the
increase is due to supporting greater shipping volumes, higher occupancy
capacity costs, additional provision for doubtful accounts and an increase
in information systems costs. General and administrative expenses as a
percentage of net revenue were 36.7% compared to 39.8% (35.3%, netting $17.0
million adjustment) reported in the prior year.
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FRITZ COMPANIES, INC. FORM 10-Q
Other Income and Expense: Due to the strengthening of the U.S. Dollar,
currency gains were realized by certain international operations, where
certain trade receivables were denominated in U.S. Dollars.
LIQUIDITY AND CAPITAL RESOURCES
The Company's cash and equivalents were approximately $43.3 million at
February 28, 1998 and at May 31, 1997. Positive operational cash flow of
$38.1 million was used to fund capital expenditures of $16.3 million
resulting in free cash flow of $21.8 million. Capital expenditures consisted
mostly of expenditures for computer hardware and software, building and
leasehold improvements, and warehouse equipment.
The Company paid cash of $14.6 million relating to acquisitions. These
payments consisted of reductions to existing debt totaling $11.3 million,
and additional payments totaling $3.3 million from achievement of specified
net revenue or pre-tax income levels.
As of February 28, 1998, utilization of the syndicated multicurrency
credit facility (the Credit Facility) was $25.5 million, consisting of $9.0
million of borrowings under the Credit Facility and $16.5 million for
outstanding letters of credit. Therefore, the Company's total available
borrowing capacity under the Credit Facility as of February 28, 1998 was
approximately $34.5 million.
On March 27, 1998, the Company entered into a $100 million syndicated
multi-currency credit facility, maturing March 27, 2001. This Credit
Facility replaces the Company's current $60 million facility which was to
mature December 15, 1998. The purpose of the facility is to provide letters
of credit and working capital not covered by internally generated funds. The
Company is required to comply with certain financial covenants such as: 1)
minimum working capital, 2) minimum net worth, 3) maximum leverage ratio, 4)
minimum fixed charge coverage ratio, and 5) maximum capital expenditures.
Overall, the Company believes these covenants are less restrictive than
those of the previous facility.
CURRENCY AND OTHER RISK FACTORS
The nature of the Company's worldwide operations involves a multitude of
currencies other than the U.S. Dollar. Accordingly, the Company is exposed
to the inherent risks of international currency markets and governmental
regulations. The Company seeks to compensate for currency exposures by
accelerating international payment among the Company's offices and agents.
The Company's translation adjustment for the nine months ended February 28,
1998 increased due to the strengthening of the U.S. dollar relative to
certain currencies of Asia, Europe and Latin America. Continued devaluation
of certain currencies could adversely impact the financial results of
operations in future periods.
The Company's ability to provide service to its customers is highly
dependent on good working relationships with a variety of entities such as
airlines, steamship carriers and governmental agencies. Changes in space
allotments available from carriers, governmental deregulation efforts, the
regulations governing the Company's products, and/or the international trade
and tariff environment could affect the Company's business in unpredictable
ways.
Management believes the Company's business has not been adversely
affected by inflation in the past. Historically, the Company has generally
been successful in passing cost increases to its customers by means of price
increases. However, due to competitive marketplace conditions, continued
future cost increases could erode the Company's margin.
The Company is conducting a comprehensive review of its computer systems
to identify the systems that could be affected by year 2000 (Y2K) issues and
is developing an implementation plan to resolve these issues. The Y2K issues
were the result of computer programs written using two digits rather than
four to define the applicable year. The Company believes that the
12
<PAGE> 13
FRITZ COMPANIES, INC. FORM 10-Q
modifications made to existing software and conversion to new software
significantly reduce the operational problems posed by Y2K. However, if such
modification and conversions fail or miscalculate, the Y2K problem may have
a material impact on the operations of the Company. The total Y2K costs have
not yet been determined.
We are in the process of contacting customers, vendors, carriers,
government agencies, and other trading partners to ensure that their systems
and services are Year 2000 compliant. We receive services from these trading
partners to deliver our products and information service offerings to our
customers. Although we are not directly responsible for these trading
partners' systems, their problems with the Year 2000 can materially effect
our business operations.
Additional risks and uncertainties include:
(i) The Company's ability to implement its program to improve
operating results and cash flow,
(ii) Dependence of the Company on international trade and
worldwide economic conditions,
(iii) Dependence of the Company on the continued services of key
executives and managers,
(iv) Risks associated with the Company's acquisition strategy,
including:
(a) Diversion of management's attention to the
assimilation of the operations and personnel of
acquired companies,
(b) Potential adverse short-term effects of acquisitions
on the Company's operating results, and
(c) Integration of financial reporting systems and
acquired assets.
(v) The possible inability of the Company's information systems
to keep pace with the increasing complexity and growth of
the Company's business,
(vi) The increasing level of investment required by the
transition of the Company from prior predominance of customs
brokerage revenue to its increasing emphasis on integrated
logistics and providing a full range of international
transportation and supply chain management services,
(vii) Diversion of management focus and resources as a result of
pending litigation,
(viii) Other risks disclosed elsewhere in this Form 10-Q or in
the Company's other filings with the Securities and Exchange
Commission.
NEW ACCOUNTING PRONOUNCEMENTS
In June 1997, the Financial Accounting Standards Board issued Statement
of Financial Accounting Standards No. 130, "Reporting Comprehensive Income,"
which requires enterprises to report, by major component and in total, all
changes in equity from non-owner sources; and Statement of Financial
Accounting Standards No. 131, "Disclosures about Segments of an Enterprise
and Related Information," which establishes annual and interim reporting
standards for operating segments and related disclosures about products,
services, geographic areas and major customers.
Both standards are effective for the Company's fiscal year 1999. The
effect of these statements will be limited to the form and content of the
Company's disclosures and are not expected to impact the Company's results
of operations, cash flow or financial position.
SAFE HARBOR STATEMENT
Except for the historical information contained herein, the matters
discussed in this Form 10-Q contain forward looking statements that involve
risks and uncertainties. The Company's actual results could differ
materially. Factors that could cause or contribute to such differences
include, but are not limited to, those discussed herein, as well as those
discussed elsewhere in the Company's Securities and Exchange Commission
filings.
13
<PAGE> 14
FRITZ COMPANIES, INC. FORM 10-Q
PART II. OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
10.31 Syndicated multi-currency facility agreement dated
March 27, 1998 for $100 million maturing on March 27, 2001.
Edgar Filing Only.
10.32 First Amendment Agreement dated March 1, 1998 to the Note
Purchase Agreement dated April 15, 1996 for $75 million at
6.43% senior notes due April 15, 2003 (exhibits excluded).
Edgar Filing Only.
15 Letter regarding unaudited interim financial information.
Edgar Filing Only.
27 Financial Data Schedule. Edgar Filing Only.
(b) The company filed the following reports on Form 8-K during the
quarter ended February 28, 1998 and through the date hereof:
1. February 11, 1998
Item 5. Other Events
On February 11, 1998, the Company issued a press release announcing
the addition of two new members to its Board of Directors.
2. March 6, 1998
Item 5. Other Events
On February 9, 1998, the California Court of Appeal reversed an order
of the San Francisco Superior Court dismissing with prejudice a class
action lawsuit filed against the Company and certain of its officers
(Greenfield v. Fritz), finding that the plaintiff should have been
given an opportunity to amend his defective complaint.
On March 5, 1998, the United States District Court for the Northern
District of California entered an order dismissing with prejudice the
class action lawsuits filed against the Company and certain of its
officers in July and August 1996 (Polk v. Fritz, Weiss v. Fritz and
E.M. Lawrence etc. Trust v. Fritz), finding that plaintiffs had not
alleged any statement that was false and misleading in violation of
the federal securities laws.
14
<PAGE> 15
FRITZ COMPANIES, INC. FORM 10-Q
S I G N A T U R E S
Pursuant to the requirements 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.
FRITZ COMPANIES, INC.
Registrant
Dated: March 31, 1998
/s/ LYNN C. FRITZ
----------------------------------------
Lynn C. Fritz
Chairman and Chief Executive Officer
/s/ DENNIS L. PELINO
----------------------------------------
Dennis L. Pelino
President and Chief Operating Officer
/s/ ROBERT AROVAS
----------------------------------------
Robert Arovas
Executive Vice President and
Chief Financial Officer
/s/ RONALD W. WOMACK
----------------------------------------
Ronald W. Womack
Vice President of Finance and
Principal Accounting Officer
15
<PAGE> 16
<TABLE>
<CAPTION>
EXHIBIT INDEX
EXHIBIT PAGE
<S> <C> <C>
10.31 Syndicated multi-currency credit facility agreement dated March 27, 1998 for
$100 million maturing on March 27, 2001 17
10.32 First Amendment Agreement dated March 1, 1998 to the Note Purchase Agreement
dated April 15, 1996 for $75 million of 6.43% notes due April 15, 2003 (exhibits
excluded) 18
15 Letter regarding unaudited interim financial information 19
27 Financial Data Schedule 20
</TABLE>
16
<PAGE> 1
EXHIBIT 10.31
CREDIT AGREEMENT
Dated as of March 27, 1998
among
FRITZ COMPANIES, INC.,
as Borrower,
CERTAIN SUBSIDIARIES OF THE BORROWER,
as Guarantors,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTY HERETO
AND
NATIONSBANK OF TEXAS, N.A.,
as Agent
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C> <C>
SECTION 1 DEFINITIONS........................................................................1
1.1 Definitions......................................................................1
1.2 Computation of Time Periods.....................................................24
1.3 Accounting Terms................................................................24
SECTION 2 CREDIT FACILITIES.................................................................24
2.1 Revolving Loans.................................................................24
2.2 Letter of Credit Subfacility....................................................26
2.3 Foreign Currency Loan Subfacility...............................................32
2.4 Swingline Loan Subfacility......................................................34
2.5 Extension of Maturity Date......................................................36
SECTION 3 OTHER PROVISIONS RELATING TO CREDIT FACILITIES....................................36
3.1 Default Rate....................................................................36
3.2 Extension and Conversion........................................................36
3.3 Prepayments.....................................................................37
3.4 Reductions in Commitments.......................................................38
3.5 Fees............................................................................38
3.6 Capital Adequacy................................................................39
3.7 Inability To Determine Interest Rate............................................40
3.8 Illegality......................................................................40
3.9 Requirements of Law.............................................................40
3.10 Taxes..........................................................................41
3.11 Indemnity......................................................................43
3.12 Pro Rata Treatment.............................................................44
3.13 Sharing of Payments............................................................44
3.14 Payments, Computations, Etc....................................................45
3.15 Evidence of Debt...............................................................47
SECTION 4 GUARANTY..........................................................................48
4.1 The Guarantee...................................................................48
4.2 Obligations Unconditional.......................................................48
4.3 Reinstatement...................................................................49
4.4 Remedies........................................................................50
4.5 Rights of Contribution..........................................................50
4.6 Continuing Guarantee............................................................51
SECTION 5 CONDITIONS........................................................................51
5.1 Conditions to Closing...........................................................51
5.2 Conditions to All Extensions of Credit..........................................53
SECTION 6 REPRESENTATIONS AND WARRANTIES....................................................54
6.1 Financial Condition.............................................................54
6.2 No Changes or Restricted Payments...............................................54
6.3 Organization; Existence; Compliance with Law....................................55
6.4 Power; Authorization; Enforceable Obligations...................................55
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
<S> <C> <C>
6.5 No Legal Bar....................................................................55
6.6 No Material Litigation..........................................................56
6.7 No Default......................................................................56
6.8 Ownership of Property; Liens....................................................56
6.9 Intellectual Property...........................................................56
6.10 No Burdensome Restrictions.....................................................56
6.11 Taxes..........................................................................56
6.12 ERISA..........................................................................57
6.13 Governmental Regulations, Etc..................................................58
6.14 Purpose of Extensions of Credit................................................59
6.15 Environmental Matters..........................................................59
6.16 First Priority Lien............................................................60
6.17 Subsidiaries...................................................................60
6.18 Chief Executive Office.........................................................60
6.19 Indebtedness under Note Purchase Agreement.....................................60
SECTION 7 AFFIRMATIVE COVENANTS.............................................................60
7.1 Financial Statements............................................................61
7.2 Certificates; Other Information.................................................62
7.3 Notices.........................................................................62
7.4 Payment of Obligations..........................................................63
7.5 Conduct of Business and Maintenance of Existence................................64
7.6 Maintenance of Property; Insurance..............................................64
7.7 Inspection of Property; Books and Records; Discussions..........................64
7.8 Environmental Laws..............................................................65
7.9 Financial Covenants.............................................................65
7.10 Use of Proceeds................................................................66
7.11 Additional Guaranties and Stock Pledges........................................66
SECTION 8 NEGATIVE COVENANTS................................................................66
8.1 Indebtedness....................................................................67
8.2 Liens...........................................................................68
8.3 Nature of Business..............................................................68
8.4 Consolidation, Merger, Sale of Assets...........................................68
8.5 Advances, Investments and Loans.................................................69
8.6 Restricted Payments.............................................................69
8.7 Transactions with Affiliates....................................................70
8.8 Fiscal Year.....................................................................70
8.9 Limitation on Restrictions......................................................70
8.10 Sale Leasebacks................................................................70
8.11 No Further Negative Pledges....................................................71
8.12 Capital Expenditures...........................................................71
8.13 Infringement of Property Rights................................................71
SECTION 9 EVENTS OF DEFAULT.................................................................71
9.1 Events of Default...............................................................71
9.2 Acceleration; Remedies..........................................................73
SECTION 10 AGENCY PROVISIONS................................................................74
</TABLE>
ii
<PAGE> 4
<TABLE>
<CAPTION>
<S> <C> <C>
10.1 Appointment....................................................................74
10.2 Delegation of Duties...........................................................75
10.3 Exculpatory Provisions.........................................................75
10.4 Reliance on Communications.....................................................75
10.5 Notice of Default..............................................................76
10.6 Non-Reliance on Agent and Other Lenders........................................76
10.7 Indemnification................................................................77
10.8 Agent in its Individual Capacity...............................................77
10.9 Successor Agent................................................................77
SECTION 11 MISCELLANEOUS....................................................................78
11.1 Notices........................................................................78
11.2 Right of Set-Off...............................................................79
11.3 Benefit of Agreement...........................................................79
11.4 No Waiver; Remedies Cumulative.................................................81
11.5 Payment of Expenses, etc.......................................................82
11.6 Amendments, Waivers and Consents...............................................82
11.7 Counterparts...................................................................83
11.8 Headings.......................................................................83
11.9 Survival.......................................................................83
11.10 Governing Law; Submission to Jurisdiction; Venue..............................83
11.11 Severability..................................................................84
11.12 Entirety......................................................................84
11.13 Binding Effect; Termination...................................................84
11.14 Confidentiality...............................................................85
11.15 Conflict......................................................................85
</TABLE>
iii
<PAGE> 5
SCHEDULES
Schedule 1.1(a) Existing Letters of Credit
Schedule 1.1(b) Liens
Schedule 2.1(a) Schedule of Lenders and Commitments
Schedule 2.1(b)(i) Form of Notice of Borrowing for Revolving Loans
Schedule 2.1(e) Form of Revolving Note
Schedule 2.2(b) Notice of Request for Letter of Credit
Schedule 2.3(b)(i) Form of Notice of Borrowing for Foreign Currency Loans
Schedule 2.4(d) Form of Swingline Note
Schedule 3.2 Form of Notice of Extension/Conversion
Schedule 6.17 Subsidiaries
Schedule 6.18 Chief Executive Office
Schedule 7.2(b) Form of Officer's Compliance Certificate
Schedule 7.11 Form of Joinder Agreement
Schedule 8.1 Indebtedness
Schedule 10.1(b) Form of Intercreditor Agreement
Schedule 11.1 Notice
Schedule 11.3(b) Form of Assignment and Acceptance
iv
<PAGE> 6
CREDIT AGREEMENT
THIS CREDIT AGREEMENT dated as of March 27, 1998 (the "Credit
Agreement"), is by and among FRITZ COMPANIES, INC., a Delaware corporation (the
"Borrower"), the Guarantors (as defined herein), the lenders named herein and
such other lenders as may become a party hereto (the "Lenders"), and NATIONSBANK
OF TEXAS, N.A., as Agent for the Lenders (in such capacity, the "Agent").
W I T N E S S E T H
WHEREAS, the Borrower has requested that the Lenders provide a
$100,000,000 credit facility for the purposes hereinafter set forth;
WHEREAS, the Lenders have agreed to make the requested credit facility
available to the Borrower on the terms and conditions hereinafter set forth;
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1
DEFINITIONS
1.1 DEFINITIONS.
As used in this Credit Agreement, the following terms shall have
the meanings specified below unless the context otherwise requires:
"Additional Credit Party" means each Person that becomes a
Guarantor after the Closing Date by execution of a Joinder Agreement.
"Additional Foreign Currency" means the lawful currency of
Australia, Bangladesh, Brunei, China, India, Indonesia, Korea, Malaysia,
Pakistan, Philippines, Sri Lanka, Taiwan and Thailand.
"Affiliate" means, with respect to any Person, any other Person
(i) directly or indirectly controlling or controlled by or under direct
or indirect common control with such Person or (ii) directly or
indirectly owning or holding five percent (5%) or more of the equity
interest in such Person. For purposes of this definition, "control" when
used with respect to any Person means the power to direct the management
and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the
foregoing.
<PAGE> 7
"Agency Services Address" means NationsBank of Texas, N.A., 13th
Floor, 901 Main Street, Post Office Box 831000, Dallas, Texas
75283-1000, Attn: Agency Services, or such other address as may be
identified by written notice from the Agent to the Borrower.
"Agent" shall have the meaning assigned to such term in the
heading hereof, together with any successors or assigns.
"Agent's Fee Letter" means that certain letter agreement, dated
as of November 25, 1997, between the Agent and the Borrower, as amended,
modified, supplemented or replaced from time to time.
"Agent's Fees" shall have the meaning assigned to such term in
Section 3.5(c).
"Aggregate Revolving Committed Amount" means the aggregate amount
of Revolving Commitments in effect from time to time, being initially
ONE HUNDRED MILLION DOLLARS ($100,000,000) (such aggregate maximum
amount may be reduced from time to time as provided in Section 3.4).
"Applicable Percentage" means for the Revolving Loans, Foreign
Currency Loans, Swingline Loans, Letter of Credit Fee and the Unused
Fee, the appropriate applicable percentages corresponding to the Fixed
Charge Coverage Ratio in effect as of the most recent determination date
as shown below:
<TABLE>
<CAPTION>
Pricing Fixed Charge Applicable Applicable
Level Coverage Ratio Percentage For Percentage Applicable Applicable
Eurocurrency For Base Percentage Percentage
Loans Rate Loans For Letter of For Unused
Credit Fees Fees
- ----------- ------------------ ----------------- ----------------- --------------- ---------------
<S> <C> <C> <C> <C> <C>
I < 1.75 to 1.0 0.750% 0% 0.750% 0.225%
- ----------- ------------------ ----------------- ----------------- --------------- ---------------
II => 1.75 to 1.0 0.625% 0% 0.625% 0.175%
but < 2.0 to 1.0
- ----------- ------------------ ----------------- ----------------- --------------- ---------------
III => 2.0 to 1.0 0.500% 0% 0.500% 0.150%
but < 2.25 to 1.0
- ----------- ------------------ ----------------- ----------------- --------------- ---------------
IV => 2.25 to 1.0 0.375% 0% 0.375% 0.125%
but
< 2.50 to 1.0
- ----------- ------------------ ----------------- ----------------- --------------- ---------------
V => 2.50 to 1.0 0.325% 0% 0.325% 0.100%
- ----------- ------------------ ----------------- ----------------- --------------- ---------------
</TABLE>
The Applicable Percentages shall be determined and adjusted quarterly on
the date (each a "Calculation Date") five Business Days after the date
on which the Agent receives the officer's certificate provided by the
Borrower in accordance with the provisions of Section 7.2(b); provided,
however, that (i) the initial Applicable Percentages shall be based on
2
<PAGE> 8
Pricing Level I until the first Calculation Date to occur after the
Closing Date, and, thereafter, the Applicable Percentages shall be
determined by the Fixed Charge Coverage Ratio as of the fiscal quarter
end immediately preceding the applicable Calculation Date, and (ii) if
the Borrower fails to provide the officer's certificate to the Agent as
required by Section 7.2(b) on or before the most recent Calculation
Date, the Applicable Percentages from such Calculation Date shall be
based on Pricing Level I until such time as an appropriate officer's
certificate is provided, whereupon the Pricing Level shall be determined
by the Fixed Charge Coverage Ratio as of the fiscal quarter end
immediately preceding the applicable Calculation Date. Except as set
forth above, each Applicable Percentage shall be effective from one
Calculation Date until the next Calculation Date. Any adjustment in the
Applicable Percentages shall be applicable to all existing Loans and
Letters of Credit as well as any new Loans made or Letters of Credit
issued. The Borrower shall promptly deliver to the Agent at the address
set forth in Section 11.1 and at the Agency Services Address the
information required by Section 7.2(b) in accordance with the terms of
Section 7.2(b).
"Asset Disposition" means the disposition of any or all of the
assets (or the sale of the stock of a Subsidiary) of the Borrower or any
of its Subsidiaries whether by sale, lease, transfer or otherwise unless
permitted by the terms of Section 8.4(b)(i), (ii) or (iii).
"Available Foreign Currency" means (i) the lawful currency of
England, the Netherlands, Belgium, France, Germany, Hong Kong,
Switzerland, Norway, Japan, Italy and Singapore and (ii) any other
freely available currency (other than any Additional Foreign Currency)
which is freely transferable and freely convertible into Dollars and in
which dealings in deposits are carried on in the London interbank
market, which shall be requested by the Borrower and approved by each
Lender.
"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the
United States Code, as amended, modified, succeeded or replaced from
time to time.
"Bankruptcy Event" means, with respect to any Person, the
occurrence of any of the following with respect to such Person: (i) a
court or governmental agency having jurisdiction in the premises shall
enter a decree or order for relief in respect of such Person in an
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of such Person or for any substantial part of its Property or
ordering the winding up or liquidation of its affairs; or (ii) there
shall be commenced against such Person an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, or any case, proceeding or other action for the appointment
of a receiver, liquidator, assignee, custodian, trustee, sequestrator
(or similar official) of such Person or for any substantial part of its
Property or for the winding up or liquidation of its affairs, and such
involuntary case or other case, proceeding or other action shall remain
undismissed, undischarged or unbonded for a period of sixty (60)
consecutive days; or (iii) such Person shall commence a voluntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consent to the entry of an order for relief in
an involuntary case
3
<PAGE> 9
under any such law, or consent to the appointment or taking possession
by a receiver, liquidator, assignee, custodian, trustee, sequestrator
(or similar official) of such Person or for any substantial part of its
Property or make any general assignment for the benefit of creditors; or
(iv) such Person shall be unable to, or shall admit in writing its
inability to, pay its debts generally as they become due.
"Base Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest whole multiple of 1/100 of 1%)
equal to the greater of (i) the Federal Funds Rate in effect on such day
plus 1/2 of 1% or (ii) the Prime Rate in effect on such day. If for any
reason the Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable after due inquiry to
ascertain the Federal Funds Rate for any reason, including the inability
or failure of the Agent to obtain sufficient quotations in accordance
with the terms hereof, the Base Rate shall be determined without regard
to clause (i) of the first sentence of this definition until the
circumstances giving rise to such inability no longer exist. Any change
in the Base Rate due to a change in the Prime Rate or the Federal Funds
Rate shall be effective on the effective date of such change in the
Prime Rate or the Federal Funds Rate, respectively.
"Base Rate Loan" means any Loan bearing interest at a rate
determined by reference to the Base Rate.
"B of A Credit Facility" means that certain credit facility
provided to the Borrower pursuant to the terms and conditions of that
certain Multicurrency Credit Agreement dated as of December 15, 1995
among the Borrower, Bank of America National Trust and Savings
Association, as agent and the other financial institutions party
thereto, as amended, modified, extended, or restated from time to time.
"Borrower" means Fritz Companies, Inc., a Delaware corporation.
"Business Day" means a day other than a Saturday, Sunday or other
day on which commercial banks in Dallas, Texas or Los Angeles,
California are authorized or required by law to close, except that, (i)
when used in connection with a Eurocurrency Loan, such day shall also be
a day on which dealings between banks are carried on in U.S. dollar
deposits in London interbank market and (ii) when used in connection
with a Foreign Currency Loan, such day shall also be a day on which
dealings between banks are carried on in deposits in Available Foreign
Currencies or Additional Foreign Currencies, as applicable, in London
interbank market.
"Capital Expenditures" means all expenditures which in accordance
with GAAP would be classified as capital expenditures, including,
without limitation, Capital Leases.
"Capital Lease" means, as applied to any Person, any lease of any
Property (whether real, personal or mixed) by that Person as lessee
which, in accordance with GAAP, is or should be accounted for as a
capital lease on the balance sheet of that Person.
4
<PAGE> 10
"Capital Lease Obligation" means the capital lease obligations
relating to a Capital Lease determined in accordance with GAAP.
"Cash Equivalents" means (a) securities issued or directly and
fully guaranteed or insured by the United States of America or any
agency or instrumentality thereof (provided that the full faith and
credit of the United States of America is pledged in support thereof)
having maturities of not more than twelve months from the date of
acquisition, (b) U.S. dollar denominated time deposits and certificates
of deposit of (i) any Lender, or (ii) any domestic commercial bank of
recognized standing (y) having capital and surplus in excess of
$500,000,000 and (z) whose short-term commercial paper rating from S&P
is at least A-1 or the equivalent thereof or from Moody's is at least
P-1 or the equivalent thereof (any such Lender being an "Approved
Lender"), in each case with maturities of not more than 270 days from
the date of acquisition, (c) commercial paper and variable or fixed rate
notes issued by any Approved Lender (or by the parent company thereof)
and maturing within six months of the date of acquisition, (d)
repurchase agreements entered into by a Person with a bank or trust
company (including any of the Lenders) or recognized securities dealer
having capital and surplus in excess of $500,000,000 for direct
obligations issued by or fully guaranteed by the United States of
America in which such Person shall have a perfected first priority
security interest (subject to no other Liens) and having, on the date of
purchase thereof, a fair market value of at least 100% of the amount of
the repurchase obligations, (e) obligations of any State of the United
States or any political subdivision thereof, the interest with respect
to which is exempt from federal income taxation under Section 103 of the
Code, having a long term rating of at least AA- or Aa-3 by S&P or
Moody's, respectively, and maturing within three years from the date of
acquisition thereof, (f) Investments in municipal auction preferred
stock (i) rated AAA (or the equivalent thereof) or better by S&P or Aaa
(or the equivalent thereof) or better by Moody's and (ii) with dividends
that reset at least once every 365 days and (g) Investments, classified
in accordance with GAAP as current assets, in money market investment
programs registered under the Investment Company Act of 1940, as
amended, which are administered by reputable financial institutions
having capital of at least $100,000,000 and the portfolios of which are
limited to Investments of the character described in the foregoing
subdivisions (a), (b), (c), (e) and (f).
"Change of Control" means the occurrence of any of the following
events: (i) any Person or two or more Persons acting in concert (other
than Lynn C. Fritz) shall have acquired "beneficial ownership," directly
or indirectly, of, or shall have acquired by contract or otherwise, or
shall have entered into a contract or arrangement that, upon
consummation, will result in its or their acquisition of, control over,
Voting Stock of the Borrower (or other securities convertible into such
Voting Stock) representing 50% or more of the combined voting power of
all Voting Stock of the Borrower, or (ii) during any period of up to 24
consecutive months, commencing after the Closing Date, individuals who
at the beginning of such 24 month period were directors of the Borrower
(together with any new director whose election by the Borrower's Board
of Directors or whose nomination for election by the Borrower's
shareholders was approved by a vote of at least two-thirds of the
directors then still in office who either were directors at the
beginning of such period or whose election or nomination for election
was previously so approved) cease for any reason to constitute a
5
<PAGE> 11
majority of the directors of the Borrower then in office. As used
herein, "beneficial ownership" shall have the meaning provided in Rule
13d-3 of the Securities and Exchange Commission under the Securities Act
of 1934.
"Closing Date" means the date hereof.
"Code" means the Internal Revenue Code of 1986, as amended, and
any successor statute thereto, as interpreted by the rules and
regulations issued thereunder, in each case as in effect from time to
time. References to sections of the Code shall be construed also to
refer to any successor sections.
"Collateral" means all collateral referred to in and covered by
the Pledge Agreements.
"Collateral Agent" means NationsBank, in its capacity as
collateral agent for the Lenders and the Noteholders under the
Intercreditor Agreement and the Pledge Agreements.
"Collateral Foreign Subsidiary" means any Foreign Subsidiary of
the Borrower which the Collateral Agent, for the benefit of the Lenders
(and affiliates of Lenders as to certain obligations under Hedging
Agreements) and the Noteholders, has a perfected first priority security
interest in 65% of the Voting Stock of such Foreign Subsidiary owned by
each Credit Party.
"Commitment" means the Revolving Commitment, the Foreign Currency
Commitment, the LOC Commitment and the Swingline Commitment.
"Commitment Period" means the period from and including the
Effective Date to but not including the earlier of (i) the Maturity
Date, or (ii) the date on which the Revolving Commitments terminate in
accordance with the provisions of this Credit Agreement.
"Contractual Obligation" means, as to any Person, any provision
of any security issued by such Person or of any material agreement,
instrument or undertaking to which such Person is a party or by which it
or any of its property is bound.
"Credit Documents" means a collective reference to this Credit
Agreement, the Notes, the Pledge Agreements, the LOC Documents, each
Joinder Agreement, the Agent's Fee Letter, and all other related
agreements and documents issued or delivered hereunder or thereunder or
pursuant hereto or thereto.
"Credit Party" means any of the Borrower and the Guarantors.
"Default" means any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
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<PAGE> 12
"Defaulting Lender" means, at any time, any Lender that, at such
time, (i) has failed to make an Extension of Credit required pursuant to
the terms of this Credit Agreement, (ii) has failed to pay to the Agent
or any Lender an amount owed by such Lender pursuant to the terms of the
Credit Agreement or any other of the Credit Documents, or (iii) has been
deemed insolvent or has become subject to a bankruptcy or insolvency
proceeding or to a receiver, trustee or similar proceeding.
"Determination Date" means, with respect to any Foreign Currency
Loan and any Letter of Credit denominated in a currency other than
Dollars:
(a) in connection with any origination of any
Extension of Credit, the Business Day which is the earliest of
the date such Loan is made or the date the interest rate is set;
(b) in connection with any extension or conversion
of an existing Extension of Credit, the last Business Day of each
month or the Business Day which is the earlier of the date such
credit is extended or converted or continued, or the date the
rate is set, as applicable, in connection with any extension,
conversion or continuation; or
(c) the date of any reduction of the Revolving
Committed Amount pursuant to the terms of Section 3.4;
In addition to the foregoing, such additional dates not more frequently
than once a month as may be determined by the Agent.
"Dollar Amount" means (a) with respect to Dollars or an amount
denominated in Dollars, such amount and (b) with respect to an amount of
any Available Foreign Currency or any Additional Foreign Currency or an
amount denominated in such Available Foreign Currency or Additional
Foreign Currency, the Dollar Equivalent of such amount on the applicable
date contemplated in the Credit Agreement.
"Dollar Equivalent" means, on any date, with respect to any
amount denominated in an Available Foreign Currency or an Additional
Foreign Currency, the amount of Dollars into which the Agent could, in
accordance with its practice from time to time in the interbank foreign
exchange market, convert such amount of Available Foreign Currency or
Additional Foreign Currency, as applicable, at its spot rate of exchange
(inclusive of all reasonable related costs of conversion) applicable to
the relevant transaction at or about 10:00 A.M., Dallas, Texas time, on
such date.
"Dollars" and "$" means dollars in lawful currency of the United
States of America.
"Domestic Subsidiary" means any Subsidiary which is incorporated
or organized under the laws of any state of the United States or of the
District of Columbia.
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<PAGE> 13
"EBITDA" means for any period with respect to the Borrower and
its Subsidiaries on a consolidated basis, the sum of (a) Net Income for
such period plus (b) an amount which, in the determination of Net Income
for such period, has been deducted for (i) Interest Expense, (ii) total
federal, state, local and foreign income, value added and similar taxes
and (iii) depreciation and amortization expense, all as determined in
accordance with GAAP applied on a consistent basis.
"EBITDAR" means, for any period with respect to the Borrower and
its Subsidiaries on a consolidated basis, the sum of (a) EBITDA for such
period plus (b) to the extent deducted in determining EBITDA for such
period, Rental Expense for such period.
"Effective Date" means the date on which the conditions set forth
in Section 5.1 and Section 5.2(a) shall have been fulfilled (or waived
in the sole discretion of the Lenders) and on which the initial Loans
shall have been made.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a
Lender; and (iii) any other Person approved by the Agent and, unless an
Event of Default has occurred and is continuing at the time any
assignment is effected in accordance with Section 11.3, the Borrower
(such approval not to be unreasonably withheld or delayed by the
Borrower and such approval to be deemed given by the Borrower if no
objection is received by the assigning Lender and the Agent from the
Borrower within two Business Days after notice of such proposed
assignment has been provided by the assigning Lender to the Borrower);
provided, however, that neither the Borrower nor an Affiliate of the
Borrower shall qualify as an Eligible Assignee.
"Environmental Laws" means any and all lawful and applicable
Federal, state, local and foreign statutes, laws, regulations,
ordinances, rules, judgments, orders, decrees, permits, concessions,
grants, franchises, licenses, agreements or other governmental
restrictions relating to the environment or to emissions, discharges,
releases or threatened releases of pollutants, contaminants, chemicals,
or industrial, toxic or hazardous substances or wastes into the
environment including, without limitation, ambient air, surface water,
ground water, or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport,
or handling of pollutants, contaminants, chemicals, or industrial, toxic
or hazardous substances or wastes.
"Equity Transaction" means any issuance by the Borrower to any
Person of shares of its capital stock or other equity interest whether
pursuant to the exercise of options or warrants or pursuant to the
conversion of any debt securities to equity or otherwise.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and any successor statute thereto, as interpreted by
the rules and regulations thereunder, all as the same may be in effect
from time to time. References to sections of ERISA shall be construed
also to refer to any successor sections.
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<PAGE> 14
"ERISA Affiliate" means an entity which is under common control
with the Borrower within the meaning of Section 4001(a)(14) of ERISA, or
is a member of a group which includes the Borrower and which is treated
as a single employer under Sections 414(b) or (c) of the Code.
"ERISA Event" means (i) with respect to any Plan, the occurrence
of a Reportable Event or the substantial cessation of operations (within
the meaning of Section 4062(e) of ERISA); (ii) the withdrawal by the
Borrower, any Subsidiary of the Borrower or any ERISA Affiliate from a
Multiple Employer Plan during a plan year in which it was a substantial
employer (as such term is defined in Section 4001(a)(2) of ERISA), or
the termination of a Multiple Employer Plan; (iii) the distribution of a
notice of intent to terminate or the actual termination of a Plan
pursuant to Section 4041(a)(2) or 4041A of ERISA; (iv) the institution
of proceedings to terminate or the actual termination of a Plan by the
PBGC under Section 4042 of ERISA; (v) any event or condition which could
reasonably be expected to constitute grounds under Section 4042 of ERISA
for the termination of, or the appointment of a trustee to administer,
any Plan; (vi) the complete or partial withdrawal of the Borrower, any
Subsidiary of the Borrower or any ERISA Affiliate from a Multiemployer
Plan; (vii) the conditions for imposition of a lien under Section 302(f)
of ERISA exist with respect to any Plan; or (vii) the adoption of an
amendment to any Plan requiring the provision of security to such Plan
pursuant to Section 307 of ERISA.
"Eurocurrency Loan" means any Loan bearing interest at a rate
determined by reference to the Eurocurrency Rate.
"Eurocurrency Rate" means, for the Interest Period for each
Eurocurrency Loan comprising part of the same borrowing (including
conversions, extensions and renewals), a per annum interest rate
determined pursuant to the following formula:
Eurocurrency Rate = Interbank Offered Rate
----------------------
1 - Eurocurrency Reserve Percentage
"Eurocurrency Reserve Percentage" means for any day, that
percentage (expressed as a decimal) which is in effect from time to time
under Regulation D of the Board of Governors of the Federal Reserve
System (or any successor), as such regulation may be amended from time
to time or any successor regulation, as the maximum reserve requirement
(including, without limitation, any basic, supplemental, emergency,
special, or marginal reserves) applicable with respect to Eurocurrency
liabilities as that term is defined in Regulation D (or against any
other category of liabilities that includes deposits by reference to
which the interest rate of Eurocurrency Loans is determined), whether or
not Lender has any Eurocurrency liabilities subject to such reserve
requirement at that time. Eurocurrency Loans shall be deemed to
constitute Eurocurrency liabilities and as such shall be deemed subject
to reserve requirements without benefits of credits for proration,
exceptions or offsets that may be available from time to time to a
Lender. The Eurocurrency Rate shall be adjusted
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<PAGE> 15
automatically on and as of the effective date of any change in the
Eurocurrency Reserve Percentage.
"Event of Default" means such term as defined in Section 9.1.
"Existing Letters of Credit" means the letters of credit
described by date of issuance, letter of credit number, undrawn amount,
name of beneficiary and the date of expiry on Schedule 1.1(a) hereto.
"Extension Date" shall have the meaning assigned to such term in
Section 2.5.
"Extension of Credit" means, as to any Lender, the making of, or
participation in, a Loan by such Lender or the issuance or extension of,
or participation in, a Letter of Credit.
"Fees" means all fees payable pursuant to Section 3.5.
"Federal Funds Rate" means, for any day, the rate of interest per
annum (rounded upwards, if necessary, to the nearest whole multiple of
1/100 of 1%) equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers on such day, as published by the
Federal Reserve Bank of New York on the Business Day next succeeding
such day, provided that (i) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions
on the next preceding Business Day and (ii) if no such rate is so
published on such next preceding Business Day, the Federal Funds Rate
for such day shall be the average rate quoted to the Agent on such day
on such transactions as determined by the Agent.
"Fixed Charge Coverage Ratio" means, with respect to the Borrower
and its Subsidiaries, on a consolidated basis, as of the end of each
fiscal quarter of the Borrower for the four fiscal quarter period ending
on such date, the ratio of (a) EBITDAR for the applicable period to (b)
the sum of (i) Interest Expense for the applicable period plus (ii)
Rental Expense for the applicable period.
"Foreign Currency" means the Available Foreign Currency or the
Additional Foreign Currency, as appropriate.
"Foreign Currency Commitment" means, with respect to each Lender,
the commitment of such Lender to make Foreign Currency Loans in an
aggregate principal amount at any time outstanding of up to such
Lender's Foreign Currency Commitment Percentage of the Foreign Currency
Committed Amount.
"Foreign Currency Commitment Percentage" means, for any Lender,
the percentage identified as its Foreign Currency Commitment Percentage
on Schedule 2.1(a), as such percentage may be modified in connection
with any assignment made in accordance with the provisions of Section
11.3.
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<PAGE> 16
"Foreign Currency Committed Amount" means, collectively, the
aggregate amount of all Foreign Currency Commitments as referenced in
Section 2.3(a) and, individually, the amount of each Lender's Foreign
Currency Commitment as specified on Schedule 2.1(a).
"Foreign Currency Equivalent" means, on any date, with respect to
an amount denominated in Dollars, the amount of any applicable Available
Foreign Currency or Additional Foreign Currency, as the case may be,
into which the Agent could, in accordance with its practice from time to
time in the interbank foreign exchange market, convert such amount of
Dollars at its spot rate of exchange (inclusive of all reasonable
related costs of conversion) applicable to the relevant transaction on
or about 10:00 A.M. (Dallas, Texas time) on such date.
"Foreign Currency Loans" shall have the meaning assigned to such
term in Section 2.3(a).
"Foreign Subsidiary" means any Subsidiary of the Borrower which
is not a Domestic Subsidiary.
"Funded Debt" means, with respect to any Person, without
duplication, (i) all Indebtedness of such Person for borrowed money and
(ii) all purchase money Indebtedness of such Person, including without
limitation the principal portion of all obligations of such Person under
Capital Leases.
"GAAP" means generally accepted accounting principles in the
United States applied on a consistent basis and subject to the terms of
Section 1.3 hereof.
"Governmental Authority" means any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or
regulatory body.
"Guaranteed Obligations" means, as to each Guarantor, without
duplication, (i) all obligations of the Borrower to the Lenders
(including the Issuing Lender) and the Agent, whenever arising, under
this Credit Agreement, the Notes or the Credit Documents relating to the
Revolving Obligations hereunder (including, but not limited to, any
interest accruing after the occurrence of a Bankruptcy Event with
respect to the Borrower, regardless of whether such interest is an
allowed claim under the Bankruptcy Code), and (ii) all liabilities and
obligations, whenever arising, owing from the Borrower to any Lender, or
any Affiliate of a Lender, arising under any Hedging Agreement relating
to the Loans or Revolving Obligations hereunder.
"Guarantors" means a collective reference to each of the Persons
identified as a "Guarantor" on the signature pages hereto and each
Additional Credit Party which may hereafter execute a Joinder Agreement,
together with their successors and permitted assigns, and "Guarantor"
means any one of them.
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<PAGE> 17
"Guaranty Obligations" means, with respect to any Person, without
duplication, any obligations of such Person (other than endorsements in
the ordinary course of business of negotiable instruments for deposit or
collection) guaranteeing or intended to guarantee any Indebtedness of
any other Person in any manner, whether direct or indirect, and
including without limitation any obligation, whether or not contingent,
(i) to purchase any such Indebtedness or any Property constituting
security therefor, (ii) to advance or provide funds or other support for
the payment or purchase of any such Indebtedness or to maintain working
capital, solvency or other balance sheet condition of such other Person
(including without limitation keep well agreements, maintenance
agreements, comfort letters or similar agreements or arrangements) for
the benefit of any holder of Indebtedness of such other Person, (iii) to
lease or purchase Property, securities or services primarily for the
purpose of assuring the holder of such Indebtedness, or (iv) to
otherwise assure or hold harmless the holder of such Indebtedness
against loss in respect thereof. The amount of any Guaranty Obligation
hereunder shall (subject to any limitations set forth therein) be deemed
to be an amount equal to the outstanding principal amount (or maximum
principal amount, if larger) of the Indebtedness in respect of which
such Guaranty Obligation is made.
"Hedging Agreements" means any interest rate protection agreement
or foreign currency exchange agreement between the Borrower and any
Lender, or any Affiliate of a Lender.
"Indebtedness" of any Person means, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of
such Person evidenced by bonds, debentures, notes or similar
instruments, or upon which interest payments are customarily made, (iii)
all obligations of such Person under conditional sale or other title
retention agreements relating to Property purchased by such Person
(other than customary reservations or retentions of title under
agreements with suppliers entered into in the ordinary course of
business), (iv) all obligations of such Person issued or assumed as the
deferred purchase price of Property or services purchased by such Person
(other than trade debt incurred in the ordinary course of business and
due within six months of the incurrence thereof) which would appear as
liabilities on a balance sheet of such Person, (v) all obligations of
such Person under take-or-pay or similar arrangements or under
commodities agreements, (vi) all Indebtedness of others secured by (or
for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on, or payable out
of the proceeds of production from, Property owned or acquired by such
Person, whether or not the obligations secured thereby have been
assumed, (vii) all Guaranty Obligations of such Person, (viii) the
principal portion of all obligations of such Person under Capital
Leases, (ix) all obligations of such Person in respect of interest rate
protection agreements, foreign currency exchange agreements, commodity
purchase or option agreements or other interest or exchange rate or
commodity price hedging agreements (including, but not limited to, the
Hedging Agreements), (x) the maximum amount of all standby letters of
credit issued or bankers' acceptances facilities created for the account
of such Person and, without duplication, all drafts drawn thereunder (to
the extent unreimbursed), (xi) all preferred stock issued by such Person
and required by the terms thereof to be redeemed, or for which mandatory
sinking fund payments are due, by a fixed date, and (xii) the principal
balance outstanding under any synthetic lease, tax retention operating
lease,
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<PAGE> 18
off-balance sheet loan or similar off-balance sheet financing product to
which such Person is a party, where such transaction is considered
borrowed money indebtedness for tax purposes but is classified as an
operating lease in accordance with GAAP. The Indebtedness of any Person
shall include the Indebtedness of any partnership or joint venture in
which such Person is a general partner or a joint venturer, but only to
the extent to which there is recourse to such Person for payment of such
Indebtedness.
"Interbank Offered Rate" means, for the Interest Period for each
Eurocurrency Loan comprising part of the same borrowing (including
conversions, extensions and renewals), a per annum interest rate
(rounded upwards, if necessary, to the nearest whole multiple of 1/100
of 1%) equal to the rate of interest, determined by the Agent on the
basis of the offered rates for deposits in Dollars or applicable
Available Foreign Currency or Additional Foreign Currency, as
appropriate, for a period of time corresponding to such Interest Period
(and commencing on the first day of such Interest Period), appearing on
Telerate Page 3750 (or, if, for any reason, Telerate Page 3750 is not
available, the Reuters Screen LIBO Page) as of approximately 11:00 A.M.
(London time) two (2) Business Days before the first day of such
Interest Period. As used herein, "Telerate Page 3750" means the display
designated as page 3750 by Dow Jones Telerate, Inc. (or such other page
as may replace such page on that service for the purpose of displaying
the British Bankers Association London interbank offered rates) and
"Reuters Screen LIBO Page" means the display designated as page "LIBO"
on the Reuters Monitor Money Rates Service (or such other page as may
replace the LIBO page on that service for the purpose of displaying
London interbank offered rates of major banks).
"Intercreditor Agreement" means that certain Intercreditor and
Collateral Agency Agreement dated as of the date hereof among the
Collateral Agent, the Agent and the Noteholders, as amended or modified
from time to time.
"Interest Expense" means for any period with respect to the
Borrower and its Subsidiaries on a consolidated basis all interest
expense, including the amortization of debt discount and premium and the
interest component under Capital Leases, in each case determined in
accordance with GAAP applied on a consistent basis. Except as expressly
provided otherwise, the applicable period shall be for the four
consecutive quarters ending as of the date of determination.
"Interest Payment Date" means (i) as to any Base Rate Loan, the
last day of each fiscal quarter of the Borrower and the Maturity Date
and (ii) as to any Eurocurrency Loan, the last day of each Interest
Period for such Loan and on the Maturity Date, and in addition where the
applicable Interest Period is more than 3 months, then also on the date
3 months from the beginning of the Interest Period, and each 3 months
thereafter. If an Interest Payment Date falls on a date which is not a
Business Day, such Interest Payment Date shall be deemed to be the next
succeeding Business Day, except that in the case of Eurocurrency Loans
where the next succeeding Business Day falls in the next succeeding
calendar month, then on the next preceding Business Day.
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<PAGE> 19
"Interest Period" means, as to any Eurocurrency Loan, a period of
one, two, three or six month's duration, as the Borrower may elect,
commencing in each case, on the date of the borrowing (including
conversions, extensions and renewals); provided, however, (A) if any
Interest Period would end on a day which is not a Business Day, such
Interest Period shall be extended to the next succeeding Business Day
(except that in the case of Eurocurrency Loans where the next succeeding
Business Day falls in the next succeeding calendar month, then on the
next preceding Business Day), (B) no Interest Period shall extend beyond
the Maturity Date, and (C) in the case of Eurocurrency Loans, where an
Interest Period begins on a day for which there is no numerically
corresponding day in the calendar month in which the Interest Period is
to end, such Interest Period shall end on the last day of such calendar
month.
"Investment" means (i) any loan or advance to any Person, (ii)
any purchase or other acquisition of any capital stock, warrants,
rights, options, obligations or other securities of, or equity interest
in, any Person or (iii) any capital contribution to any Person or any
other investment in any Person, including, without limitation, any
Guaranty Obligation incurred for the benefit of such Person.
"Issuing Lender" means (i) as to Letters of Credit denominated in
Dollars and Available Foreign Currencies (other than the lawful currency
of Hong Kong and Singapore), NationsBank and (ii) as to Letters of
Credit denominated in Additional Foreign Currencies and the lawful
currency of Hong Kong and Singapore, Standard Chartered Bank.
Notwithstanding the foregoing, Standard Chartered Bank shall also be the
Issuing Lender as to certain Letters of Credit denominated in Dollars
which are issued in accordance with the terms of Section 2.2(f) for the
account of a Subsidiary of the Borrower doing business in Asia.
"Issuing Lender Fees" shall have the meaning assigned to such
term in Section 3.5(b)(ii).
"Joinder Agreement" means a joinder agreement substantially in
the form of Schedule 7.11, executed and delivered by an Additional
Credit Party in accordance with the provisions of Section 7.11.
"Lenders" means each of the Persons identified as a "Lender" on
the signature pages hereto, and their successors and assigns.
"Letter of Credit" means (i) any letter of credit issued by the
Issuing Lender for the account of the Borrower in accordance with the
terms of Section 2.3 and (ii) any Existing Letters of Credit.
"Letter of Credit Fee" shall have the meaning given such term in
Section 3.5(b)(i).
"Leverage Ratio" means, as of the last day of any fiscal quarter
of the Borrower, with respect to the Borrower and its Subsidiaries on a
consolidated basis, the ratio of Funded Debt on such day to EBITDA for
the period of four consecutive fiscal quarters ending as of such day.
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<PAGE> 20
"Lien" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, security interest, encumbrance, lien (statutory or
otherwise), preference, priority or charge of any kind (including any
agreement to give any of the foregoing, any conditional sale or other
title retention agreement, any financing or similar statement or notice
filed under the Uniform Commercial Code as adopted and in effect in the
relevant jurisdiction or other similar recording or notice statute, and
any lease in the nature thereof).
"Loan" or "Loans" means the Revolving Loans (or a portion of any
Revolving Loan bearing interest at the Base Rate or the Eurocurrency
Rate and referred to as a Base Rate Loan or a Eurocurrency Loan), and/or
any Swingline Loans and/or any Foreign Currency Loan (or any Foreign
Currency Loan referred to as a Eurocurrency Loan), individually or
collectively, as appropriate.
"LOC Commitment" means the commitment of the Issuing Lender to
issue, and to honor payment obligations under, Letters of Credit
hereunder and with respect to each Lender, the commitment of each Lender
to purchase participation interests in the Letters of Credit up to such
Lender's LOC Committed Amount as specified in Schedule 2.1(a), as such
amount may be reduced from time to time in accordance with the
provisions hereof.
"LOC Committed Amount" means, collectively, the aggregate amount
of all of the LOC Commitments of the Lenders to issue and participate in
Letters of Credit as referenced in Section 2.3(a) and, individually, the
amount of each Lender's LOC Commitment as specified in Schedule 2.1(a).
"LOC Documents" means, with respect to any Letter of Credit, such
Letter of Credit, any amendments thereto, any documents delivered in
connection therewith, any application therefor, and any agreements,
instruments, guarantees or other documents (whether general in
application or applicable only to such Letter of Credit) governing or
providing for (i) the rights and obligations of the parties concerned or
at risk or (ii) any collateral security for such obligations.
"LOC Obligations" means, at any time, the sum of (i) the maximum
amount which is, or at any time thereafter may become, available to be
drawn under Letters of Credit then outstanding, assuming compliance with
all requirements for drawings referred to in such Letters of Credit plus
(ii) the aggregate amount of all drawings under Letters of Credit
honored by the Issuing Lender but not theretofore reimbursed.
"Majority-Owned Foreign Subsidiary" means, at any date of
determination, each Foreign Subsidiary in which the Credit Parties
directly own, in the aggregate, at least 50% of the Voting Stock of such
Foreign Subsidiary.
"Material Adverse Effect" means a material adverse effect on (i)
the condition (financial or otherwise), operations, business, assets,
liabilities or prospects of the Borrower and its Subsidiaries taken as a
whole, (ii) the ability of the Borrower and its Subsidiaries as a
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<PAGE> 21
whole to perform any material obligation under the Credit Documents to
which it is a party or (iii) the rights and remedies of the Lenders
under the Credit Documents.
"Material Subsidiary" means Fritz Transportation International
(H.K.) Ltd., a Hong Kong corporation; FCI Holdings International B.V., a
Netherlands corporation, Fritz Companies Canada Inc., a New Brunswick
corporation, and Fritz Air Freight, Inc., a Texas corporation and any
other Subsidiary of a Credit Party having (on a subconsolidated basis,
i.e., for such Subsidiary and its Subsidiaries) either (i) total net
revenues for the preceding four fiscal quarter period equal to or
greater than 10% of the Borrower's consolidated total net revenues for
the same period or (ii) total assets, as of the last day of the
preceding fiscal quarter, equal to or greater than 10% of the Borrower's
consolidated total assets on the same date, in each case, based upon the
Borrower's most recent annual or quarterly financial statements
delivered under Section 7.1.
"Materials of Environmental Concern" means any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum
products or any hazardous or toxic substances, materials or wastes,
defined or regulated as such in or under any Environmental Laws,
including, without limitation, asbestos, polychlorinated biphenyls and
urea-formaldehyde insulation.
"Maturity Date" means March 27, 2001, as such date may be
extended pursuant to Section 2.5.
"Moody's" means Moody's Investors Service, Inc., or any successor
or assignee of the business of such company in the business of rating
securities.
"Multiemployer Plan" means a Plan which is a multiemployer plan
as defined in Sections 3(37) or 4001(a)(3) of ERISA.
"Multiple Employer Plan" means a Plan which the Borrower, any
Subsidiary of the Borrower or any ERISA Affiliate and at least one
employer other than the Borrower, any Subsidiary of the Borrower or any
ERISA Affiliate are contributing sponsors.
"NationsBank" means NationsBank of Texas, N.A. and its
successors.
"Net Cash Proceeds" means gross cash proceeds (including any cash
received by way of deferred payment pursuant to a promissory note,
receivable or otherwise, but only as and when received) received in
connection with an Equity Transaction or Asset Disposition net of actual
costs and taxes incurred by such Person in connection with and
attributable to such Equity Transaction or Asset Disposition. For
purposes of determining the Credit Parties' compliance with Section
7.9(c) hereof, Net Cash Proceeds shall include the amount of any debt of
the Borrower or any of its Subsidiaries which is converted into an
equity investment in the Borrower or any of its Subsidiaries subsequent
to the Closing Date.
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<PAGE> 22
"Net Income" means for any period, the net income with respect to
the Borrower and its Subsidiaries on a consolidated basis as determined
in accordance with GAAP applied on a consistent basis.
"Net Worth" means, as of any date, shareholders' equity or net
worth of the Borrower and its Subsidiaries on a consolidated basis, as
determined in accordance with GAAP; provided, however, that foreign
currency translation adjustments under Financial Accounting Standards
Board Statement No. 52, "Foreign Currency Translation" shall not be
taken into account in calculating Net Worth; provided, further however,
at any time that the negative foreign currency translation adjustment of
the Borrower and its Subsidiaries on a consolidated basis exceeds
negative $20,000,000, Net Worth shall be reduced by the amount of such
excess.
"Non-Excluded Taxes" means such term as is defined in Section
3.10.
"Note" or "Notes" means the Revolving Notes and/or the Swingline
Note, individually or collectively, as appropriate.
"Noteholders" means the holders from time to time of the 6.43%
Senior Notes due April 15, 2003 (and any notes issued in substitution
thereof) issued pursuant to the terms of the Note Purchase Agreement.
"Note Purchase Agreement" means that certain Note Purchase
Agreement dated as of April 15, 1996 among the Borrower and each of the
purchasers identified on Annex I attached thereto, as the same may be
amended, modified, restated or supplemented and in effect from time to
time.
"Notice of Borrowing" means a written notice of borrowing in
substantially the form of Schedule 2.1(b)(i), as required by Section
2.1(b)(i) in the case of Revolving Loans or Schedule 2.3(b)(i), as
required by Section 2.3(b)(i) in the case of Foreign Currency Loans.
"Notice of Extension/Conversion" means the written notice of
extension or conversion in substantially the form of Schedule 3.2, as
required by Section 3.2.
"Operating Lease" means, as applied to any Person, any lease
(including, without limitation, leases which may be terminated by the
lessee at any time) of any Property (whether real, personal or mixed)
which is not a Capital Lease other than any such lease in which that
Person is the lessor.
"Participation Agreement" means that certain Participation
Agreement to be entered into among the Borrower, as construction agent
and as lessee, the guarantors party thereto, First Security Bank,
National Association, as owner trustee, the lenders identified therein,
as holders, the lenders identified therein, as lenders and NationsBank,
as agent, as amended or modified from time to time.
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"Participation Interest" means the purchase by a Lender of a
participation in Letters of Credit and LOC Obligations as provided in
Section 2.2(c), in Swingline Loans as provided in Section 2.4(b)(iii)
and in Revolving Loans as provided in Section 3.13.
"PBGC" means the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA and any successor thereof.
"Permitted Acquisition" means the acquisition of at least 51% of
the capital stock of another Person; provided that each of the following
conditions are satisfied: (i) prior to such acquisition, the Borrower
shall deliver to the Agent and the Lenders evidence reasonably
satisfactory to the Agent and the Required Lenders demonstrating that
after giving effect to such acquisition, on a pro forma basis, as if
such acquisition occurred on the first day of the twelve month period
ending on the last day of the Borrower's most recently completed fiscal
quarter, the Borrower and its Subsidiaries would have been in compliance
with all financial covenants set forth in Section 7.9, (ii) the
acquisition is consummated pursuant to a negotiated acquisition
agreement and involves the acquisition of a Person involved in the same
line of business as the Borrower, (iii) the purchase price of such
acquisition, when taken together with all other Permitted Acquisitions
during the applicable fiscal year, shall not exceed (A) $30,000,000 in
total consideration (including without limitation cash, assumed
indebtedness and earn-out payments) during any fiscal year and (B)
$15,000,000 in assumed indebtedness during any fiscal year, (iv) after
giving effect to the acquisition, the representations and warranties set
forth in Section 6 hereof shall be true and correct in all material
respects on and as of the date of such acquisition and (v) no Default or
Event of Default exists and is continuing or would result from such
acquisition.
"Permitted Investments" means Investments which are either (i)
cash and Cash Equivalents, (ii) Investments by the Borrower in other
Credit Parties, (iii) Investments by the Credit Parties in Collateral
Foreign Subsidiaries in an amount not to exceed $20,000,000 in the
aggregate during the term of this Credit Agreement, (iv) Investments by
any Credit Party or any Collateral Foreign Subsidiary in any Credit
Party, (v) Permitted Acquisitions, (vi) Investments between Foreign
Subsidiaries of the Borrower and (vii) other loans, advances and
investments of a nature not contemplated in the foregoing subsections in
an amount not to exceed $10,000,000 in the aggregate at any time
outstanding.
"Permitted Liens" means:
(i) Liens in favor of the Collateral Agent on
behalf of the Lenders (and affiliates of Lenders as to certain
obligations under Hedging Agreements) and the Noteholders;
(ii) Liens (other than Liens created or imposed
under ERISA) for taxes, assessments or governmental charges or
levies not yet due or Liens for taxes being contested in good
faith by appropriate proceedings for which adequate reserves
determined in accordance with GAAP have been established (and as
to which the
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<PAGE> 24
Property subject to any such Lien is not yet subject to
foreclosure, sale or loss on account thereof);
(iii) statutory Liens of landlords and Liens of
carriers, warehousemen, mechanics, materialmen and suppliers and
other Liens imposed by law or pursuant to customary reservations
or retentions of title arising in the ordinary course of
business, provided that such Liens secure only amounts not yet
due and payable or, if due and payable, are unfiled and no other
action has been taken to enforce the same or are being contested
in good faith by appropriate proceedings for which adequate
reserves determined in accordance with GAAP have been established
(and as to which the Property subject to any such Lien is not yet
subject to foreclosure, sale or loss on account thereof);
(iv) Liens (other than Liens created or imposed
under ERISA) incurred or deposits made by the Borrower and its
Subsidiaries in the ordinary course of business in connection
with workers' compensation, unemployment insurance and other
types of social security, or to secure the performance of
tenders, statutory obligations, bids, leases, government
contracts, performance and return-of-money bonds and other
similar obligations (exclusive of obligations for the payment of
borrowed money);
(v) Liens in connection with attachments or
judgments (including judgment or appeal bonds) provided that the
judgments secured shall, within 30 days after the entry thereof,
have been discharged or execution thereof stayed pending appeal,
or shall have been discharged within 30 days after the expiration
of any such stay;
(vi) easements, rights-of-way, restrictions
(including zoning restrictions), minor defects or irregularities
in title and other similar charges or encumbrances not, in any
material respect, impairing the use of the encumbered Property
for its intended purposes;
(vii) Liens securing purchase money Indebtedness
(including Capital Leases and TROLS) to the extent permitted
under Section 8.1(c), provided that any such Lien attaches only
to the Property financed and such Lien attaches thereto
concurrently with or within 90 days after the acquisition
thereof;
(viii) any interest of title of a lessor under, and
Liens arising from UCC financing statements (or equivalent
filings, registrations or agreements in foreign jurisdictions)
relating to, leases permitted by this Credit Agreement;
(ix) normal and customary rights of setoff upon
deposits of cash in favor of banks or other depository
institutions;
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(x) inchoate Liens arising under ERISA to secure
current service pension liabilities as they are incurred under
the provisions of any Plan; and
(xi) Liens securing Indebtedness to the extent
permitted by Section 8.1(e); provided that any such Lien (A) was
not granted in anticipation of or in connection with the
respective Permitted Acquisition and (B) does not attach to or
otherwise encumber any capital stock or other equity interest of
the Borrower or any of its Subsidiaries; and
(xii) Liens on account receivables of Starber Fritz
securing the Indebtedness permitted by Section 8.1(h);
(xiii) Liens existing as of the Closing Date and
set forth on Schedule 1.1(b); provided that (a) no such Lien
shall at any time be extended to or cover any Property other than
the Property subject thereto on the Closing Date and (b) in the
event the Indebtedness secured by such Liens shall be amended,
extended, renewed, refunded or refinanced, (I) the Indebtedness
shall not exceed the principal amount of such Indebtedness
outstanding immediately prior to being amended, extended,
renewed, refunded or refinanced and (II) the Indebtedness shall
contain terms and conditions no less favorable to the Borrower or
any of its Subsidiaries, than such existing Indebtedness.
"Person" means any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other
enterprise (whether or not incorporated) or any Governmental Authority.
"Plan" means any employee benefit plan (as defined in Section
3(3) of ERISA) which is covered by ERISA and with respect to which the
Borrower, any Subsidiary of the Borrower or any ERISA Affiliate is (or,
if such plan were terminated at such time, would under Section 4069 of
ERISA be deemed to be) an "employer" within the meaning of Section 3(5)
of ERISA.
"Pledge Agreements" means the Pledge Agreements entered into by a
Credit Party or certain Credit Parties in favor of the Collateral Agent
for the benefit of the Lenders (and affiliates of Lenders as to certain
obligations under Hedging Agreements) and the Noteholders, as amended
and modified from time to time.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by NationsBank as its prime rate, with each
change in the Prime Rate being effective on the date such change is
publicly announced as effective (it being understood and agreed that the
Prime Rate is a reference rate used by NationsBank in determining
interest rates on certain loans and is not intended to be the lowest
rate of interest charged on any extension of credit by NationsBank of
Texas, N.A. to any debtor).
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"Property" means any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible.
"Register" shall have the meaning given such term in Section
11.3(c).
"Regulation G, T, U, or X" means Regulation G, T, U or X,
respectively, of the Board of Governors of the Federal Reserve System as
from time to time in effect and any successor to all or a portion
thereof.
"Release" means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping
or disposing into the environment (including the abandonment or
discarding of barrels, containers and other closed receptacles
containing any Materials of Environmental Concern).
"Rental Expense" means, for any period, the total rental expense
for Operating Leases of the Borrower and its Subsidiaries on a
consolidated basis, as determined in accordance with GAAP.
"Reportable Event" means any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the notice
requirement has been waived by regulation.
"Required Lenders" means, at any time, Lenders which are then in
compliance with their obligations hereunder (as determined by the Agent)
and holding in the aggregate at least 67% of (i) the Commitments, and
(ii) if the Commitments have been terminated, the outstanding Loans and
Participation Interests (including the Participation Interests of the
Issuing Lender in any Letters of Credit).
"Requirement of Law" means, as to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents
of such Person, and any law, treaty, rule or regulation or determination
of an arbitrator or a court or other Governmental Authority, in each
case applicable to or binding upon such Person or any of its material
property is subject.
"Responsible Officer" means the Chief Financial Officer, any Vice
President or other duly authorized officer.
"Restricted Payment" means (i) any dividend or other
distribution, direct or indirect, on account of any shares of any class
of stock now or hereafter outstanding, except (A) a dividend payable
solely in shares of that class to the holders of that class and (B)
dividends and other distributions payable to the Borrower, (ii) any
redemption, retirement, sinking fund or similar payment, purchase or
other acquisition for value, direct or indirect, of any shares of any
class of stock now or hereafter outstanding, and (iii) any payment made
to retire, or to obtain the surrender of, any outstanding warrants,
options or other rights to acquire shares of any class of stock now or
hereafter outstanding.
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"Revolving Commitment" means, with respect to each Lender, the
commitment of such Lender to make Revolving Loans in an aggregate
principal amount at any time outstanding of up to such Lender's
Revolving Commitment Percentage of the Aggregate Revolving Committed
Amount as specified in Schedule 2.1(a), as such amount may be reduced
from time to time in accordance with the provisions hereof.
"Revolving Commitment Percentage" means, for each Lender, a
fraction (expressed as a decimal) the numerator of which is the
Revolving Commitment of such Lender at such time and the denominator of
which is the Aggregate Revolving Committed Amount at such time. The
initial Revolving Commitment Percentages are set out on Schedule 2.1(a).
"Revolving Committed Amount" means, collectively, the aggregate
amount of all of the Revolving Commitments as referenced in Section
2.1(a) and, individually, the amount of each Lender's Revolving
Commitment as specified in Schedule 2.1(a).
"Revolving Loans" shall have the meaning assigned to such term in
Section 2.1(a).
"Revolving Note" or "Revolving Notes" means the promissory notes
of the Borrower in favor of each of the Lenders evidencing the Revolving
Loans and the Foreign Currency Loans in substantially the form attached
as Schedule 2.1(e), individually or collectively, as appropriate, as
such promissory notes may be amended, modified, supplemented, extended,
renewed or replaced from time to time.
"Revolving Obligations" means, collectively, the Revolving Loans,
the Foreign Currency Loans, the Swingline Loans and the LOC Obligations.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw
Hill, Inc., or any successor or assignee of the business of such
division in the business of rating securities.
"Single Employer Plan" means any Plan which is covered by Title
IV of ERISA, but which is not a Multiemployer Plan or a Multiple
Employer Plan.
"Solvent" means, with respect to any Person as of a particular
date, that on such date (i) such Person is able to realize upon its
assets and pay its debts and other liabilities, contingent obligations
and other commitments as they mature in the normal course of business,
(ii) such Person does not intend to, and does not believe that it will,
incur debts or liabilities beyond such Person's ability to pay as such
debts and liabilities mature in their ordinary course, (iii) such Person
is not engaged in a business or a transaction, and is not about to
engage in a business or a transaction, for which such Person's Property
would constitute unreasonably small capital after giving due
consideration to the prevailing practice in the industry in which such
Person is engaged or is to engage, (iv) the fair value of the Property
of such Person is greater than the total amount of liabilities,
including, without limitation, contingent liabilities, of such Person
and (v) the present fair saleable value of the assets of such Person is
not less than the amount that will be required to pay the probable
liability of such Person on its debts as they become
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absolute and matured. In computing the amount of contingent liabilities
at any time, it is intended that such liabilities will be computed at
the amount which, in light of all the facts and circumstances existing
at such time, represents the amount that can reasonably be expected to
become an actual or matured liability.
"Starber Fritz" means Starber Fritz Inc., an Ontario corporation.
"Subsidiary" means, as to any Person, (a) any corporation more
than 50% of whose stock of any class or classes having by the terms
thereof ordinary voting power to elect a majority of the directors of
such corporation (irrespective of whether or not at the time, any class
or classes of such corporation shall have or might have voting power by
reason of the happening of any contingency) is at the time owned by such
Person directly or indirectly through Subsidiaries, and (b) any
partnership, association, joint venture or other entity in which such
Person directly or indirectly through Subsidiaries has more than 50% of
the voting interests at any time. Unless otherwise identified,
"Subsidiary" or "Subsidiaries" shall mean Subsidiaries of the Borrower.
"Swingline Commitment" means the commitment of the Swingline
Lender to make Swingline Loans in an aggregate principal amount at any
time outstanding of up to the Swingline Committed Amount.
"Swingline Committed Amount" shall have the meaning assigned to
such term in Section 2.4(a).
"Swingline Lender" means NationsBank.
"Swingline Loan" shall have the meaning assigned to such term in
Section 2.4(a).
"Swingline Note" means the promissory note of the Borrower in
favor of the Swingline Lender in the original principal amount of
$25,000,000, as such promissory note may be amended, modified, restated
or replaced from time to time.
"TROL" means any synthetic lease, tax retention operating lease,
off-balance sheet loan or similar off-balance sheet financing product
where such transaction is considered borrowed money indebtedness for tax
purposes but is classified as an Operating Lease.
"Unused Fee" shall have the meaning given such term in Section
3.5(a).
"Voting Stock" means, with respect to any Person, capital stock
issued by such Person the holders of which are ordinarily, in the
absence of contingencies, entitled to vote for the election of directors
(or persons performing similar functions) of such Person, even though
the right so to vote has been suspended by the happening of such a
contingency.
"Working Capital" means, at any time, with respect to the
Borrower and its Subsidiaries on a consolidated basis, the excess of
current assets (other than cash and Cash
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<PAGE> 29
Equivalents) over current liabilities (excluding the current portion of
Indebtedness), as determined in accordance with GAAP.
1.2 COMPUTATION OF TIME PERIODS.
For purposes of computation of periods of time hereunder, the
word "from" means "from and including" and the words "to" and "until" each mean
"to but excluding."
1.3 ACCOUNTING TERMS.
Except as otherwise expressly provided herein, all accounting
terms used herein shall be interpreted, and all financial statements and
certificates and reports as to financial matters required to be delivered to the
Lenders hereunder shall be prepared, in accordance with GAAP applied on a
consistent basis. All calculations made for the purposes of determining
compliance with this Credit Agreement shall (except as otherwise expressly
provided herein) be made by application of GAAP applied on a basis consistent
with the most recent annual or quarterly financial statements delivered pursuant
to Section 7.1 hereof (or, prior to the delivery of the first financial
statements pursuant to Section 7.1 hereof, consistent with the annual audited
financial statements referenced in Section 6.1); provided, however, if (a) the
Borrower shall object to determining such compliance on such basis at the time
of delivery of such financial statements due to any change in GAAP or the rules
promulgated with respect thereto or (b) the Agent or the Required Lenders shall
so object in writing within 30 days after delivery of such financial statements,
then such calculations shall be made on a basis consistent with the most recent
financial statements delivered by the Borrower to the Lenders as to which no
such objection shall have been made.
SECTION 2
CREDIT FACILITIES
2.1 REVOLVING LOANS.
(a) Revolving Commitment. During the Commitment Period, subject
to the terms and conditions hereof, each Lender severally agrees to make
revolving credit loans in Dollars (the "Revolving Loans") to the Borrower from
time to time in the amount of such Lender's Revolving Commitment Percentage of
such Revolving Loans for the purposes hereinafter set forth; provided that (i)
with regard to the Lenders collectively, the Dollar Amount (determined as of the
most recent Determination Date) of Revolving Obligations outstanding shall not
exceed the Aggregate Revolving Committed Amount, as reduced and (ii) with regard
to each Lender individually, the Dollar Amount (determined as of the most recent
Determination Date) of such Lender's Revolving Commitment Percentage of the sum
of the Revolving Loans plus Foreign Currency Loans plus LOC Obligations plus
Swingline Loans outstanding shall not exceed such Lender's Revolving Committed
Amount. Revolving Loans may consist of Base Rate Loans or Eurocurrency Loans, or
a combination thereof, as the Borrower may request, and may be repaid and
reborrowed in accordance with the provisions hereof.
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(b) Revolving Loan Borrowings.
(i) Notice of Borrowing. The Borrower shall request a Revolving
Loan borrowing by written notice (or telephone notice promptly confirmed
in writing) to the Agent not later than 11:00 A.M. (Dallas, Texas time)
on the Business Day of the requested borrowing in the case of Base Rate
Loans, and on the third Business Day prior to the date of the requested
borrowing in the case of Eurocurrency Loans denominated in Dollars. Each
such request for borrowing shall be irrevocable and shall specify (A)
that a Revolving Loan is requested, (B) the date of the requested
borrowing (which shall be a Business Day), (C) the aggregate principal
amount to be borrowed, and (D) whether the borrowing shall be comprised
of Base Rate Loans, Eurocurrency Loans or a combination thereof, and if
Eurocurrency Loans are requested, the Interest Period(s) therefor. If
the Borrower shall fail to specify in any such Notice of Borrowing (I)
an applicable Interest Period in the case of a Eurocurrency Loan, then
such notice shall be deemed to be a request for an Interest Period of
one month, or (II) the type of Revolving Loan requested, then such
notice shall be deemed to be a request for a Base Rate Loan hereunder.
The Agent shall give notice to each Lender promptly upon receipt of each
Notice of Borrowing pursuant to this Section 2.1(b)(i), the contents
thereof and each such Lender's share of any borrowing to be made
pursuant thereto.
(ii) Minimum Amounts. Each Revolving Loan shall be in a minimum
aggregate principal amount of $2,000,000, in the case of Eurocurrency
Loans, or $1,000,000 (or the remaining Revolving Committed Amount, if
less), in the case of Base Rate Loans, and integral multiples of
$100,000 in excess thereof.
(iii) Advances. Each Lender will make its Revolving Commitment
Percentage of each Revolving Loan borrowing available to the Agent for
the account of the Borrower as specified in Section 3.14(b), or in such
other manner as the Agent may specify in writing, by 1:00 P.M. (Dallas,
Texas time) on the date specified in the applicable Notice of Borrowing
in Dollars and in funds immediately available to the Agent. Such
borrowing will then be made available to the Borrower by the Agent (i)
by crediting the account of the Borrower on the books of such office
with the aggregate of the amounts made available to the Agent by the
Lenders and in like funds as received by the Agent or (ii) as directed
by the Borrower in writing in the aggregate of the amounts made
available to the Agent by the Lenders and in like funds as received by
the Agent.
(c) Repayment. The principal amount of all Revolving Loans shall be
due and payable in full on the Maturity Date.
(d) Interest. Subject to the provisions of Section 3.1,
(i) Base Rate Loans. During such periods as Revolving Loans shall
be comprised in whole or in part of Base Rate Loans, such Base Rate
Loans shall bear interest at a per annum rate equal to the Base Rate
plus the Applicable Percentage;
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(ii) Eurocurrency Loans. During such periods as Revolving Loans
shall be comprised in whole or in part of Eurocurrency Loans, such
Eurocurrency Loans shall bear interest at a per annum rate equal to the
Eurocurrency Rate plus the Applicable Percentage.
Interest on Revolving Loans shall be payable in arrears on each applicable
Interest Payment Date (or at such other times as may be specified herein).
(e) Revolving Notes. The Revolving Loans shall be evidenced by a duly
executed Revolving Note in favor of each Lender substantially in the form of
Schedule 2.1(e).
(f) Maximum Number of Eurocurrency Loans. The Borrower will be
limited to a maximum number of five (5) Eurocurrency Loans outstanding at any
time. For purposes hereof, Eurocurrency Loans with separate or different
Interest Periods will be considered as separate Eurocurrency Loans even if their
Interest Periods expire on the same date.
2.2 LETTER OF CREDIT SUBFACILITY.
(a) Issuance. During the Commitment Period, subject to the terms and
conditions hereof and of the LOC Documents, if any, and such other terms and
conditions which the Issuing Lender may reasonably require, the Issuing Lender
shall issue Letters of Credit in Dollars, Available Foreign Currencies and
Additional Foreign Currencies, and the Lenders shall participate in, such
Letters of Credit in Dollars and Available Foreign Currencies for the purposes
hereinafter set forth; provided that (i) the aggregate Dollar Amount of LOC
Obligations shall not exceed THIRTY-FIVE MILLION DOLLARS ($35,000,000) at any
time (the "LOC Committed Amount"), (ii) with regard to the Lenders collectively,
(A) the Dollar Amount (determined as of the most recent Determination Date) of
the sum of Foreign Currency Loans plus LOC Obligations with respect to Letters
of Credit denominated in an Available Foreign Currency shall not exceed THIRTY
MILLION DOLLARS ($30,000,000) at any time, (iii) with regard to the Lenders
collectively, (A) the Dollar Amount (determined as of the most recent
Determination Date) of the Revolving Obligations shall not exceed the Aggregate
Revolving Committed Amount, as reduced from time to time and (B) the Dollar
Amount (determined as of the most recent Determination Date) of the sum of
Foreign Currency Loans shall not exceed the Foreign Currency Committed Amount,
and (iv) with regard to each Lender individually, (A) the Dollar Amount
(determined as of the most recent Determination Date) of such Lender's Revolving
Commitment Percentage of the sum of Revolving Loans plus LOC Obligations plus
Foreign Currency Loans plus Swingline Loans shall not exceed such Lender's
Revolving Committed Amount and (B) the Dollar Amount (determined as of the most
recent Determination Date) of such Lender's portion (including participation
interests therein) of the sum of Foreign Currency Loans shall not exceed such
Lender's Foreign Currency Committed Amount. Letters of Credit issued hereunder
shall not have an original expiry date more than one year from the date of
issuance or extension, nor an expiry date, whether as originally issued or by
extension, extending beyond the Maturity Date. Each Letter of Credit shall
comply with the related LOC Documents and shall be either (x) a standby letter
of credit issued to support the obligations (including pension or insurance
obligations), contingent or otherwise, of the Borrower or subject to subsection
(f) hereof a Subsidiary of the Borrower, or (y) a commercial letter of credit in
respect of the purchase of goods or services by
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<PAGE> 32
the Borrower or subject to subsection (f) hereof a Subsidiary of the Borrower in
the ordinary course of business. The issuance date of each Letter of Credit
shall be a Business Day.
(b) Notice and Reports. The request for the issuance of a Letter of
Credit shall be submitted by the Borrower to the Issuing Lender at least three
(3) Business Days prior to the requested date of issuance (or such shorter
period as may be agreed by the Issuing Lender). The Issuing Lender will provide
to the Agent at least monthly, and more frequently upon request, a detailed
summary report on its Letters of Credit and the activity thereon, in form and
substance acceptable to the Agent. In addition, the Issuing Lender will provide
to the Agent for dissemination to the Lenders at least quarterly, and more
frequently upon request, a detailed summary report on its Letters of Credit and
the activity thereon, including, among other things, the beneficiary, the face
amount and the expiry date. The Issuing Lender will provide copies of the
Letters of Credit to the Agent and the Lenders promptly upon request.
(c) Participation.
(i) On the Closing Date, each Lender shall automatically acquire
a participation in the liability of the Issuing Lender under each
Existing Letter of Credit in an amount equal to its Revolving Commitment
Percentage of such Existing Letters of Credit. Each Existing Letter of
Credit shall be deemed for all purposes of this Credit Agreement and the
other Credit Documents to be a Letter of Credit.
(ii) Each Lender, upon issuance of a Letter of Credit, shall be
deemed to have purchased without recourse a risk participation from the
Issuing Lender in such Letter of Credit and the obligations arising
thereunder, in each case in an amount equal to its Revolving Commitment
Percentage of the obligations under such Letter of Credit and shall
absolutely, unconditionally and irrevocably assume, as primary obligor
and not as surety, and be obligated to pay to the Issuing Lender
therefor and discharge when due, its pro rata share of the obligations
arising under such Letter of Credit. In the case of Letters of Credit
denominated in Dollars or an Available Foreign Currency, without
limiting the scope and nature of each Lender's participation in any
Letter of Credit, to the extent that the Issuing Lender has not been
reimbursed as required hereunder or under any such Letter of Credit,
each such Lender shall pay to the Issuing Lender in the same currency as
the respective Letter of Credit an amount equal to its Revolving
Commitment Percentage of such unreimbursed drawing in same day funds on
the day of notification by the Issuing Lender of an unreimbursed drawing
pursuant to the provisions of subsection (d) hereof. In the case of
Letters of Credit denominated in an Additional Foreign Currency, without
limiting the scope and nature of each Lender's participation in any
Letter of Credit, to the extent that the Issuing Lender has not been
reimbursed as required hereunder or under any such Letter of Credit,
each such Lender shall pay to the Issuing Lender the Dollar Amount (as
of the date of such drawing) equal to its Revolving Commitment
Percentage of such unreimbursed drawing in same day funds on the day of
notification by the Issuing Lender of an unreimbursed drawing pursuant
to the provisions of subsection (d) hereof. The obligation of each
Lender to so reimburse the Issuing Lender shall be absolute and
unconditional and shall not be affected by the occurrence of a Default,
an Event of Default or any other occurrence or event. Any such
reimbursement shall
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not relieve or otherwise impair the obligation of the Borrower to
reimburse the Issuing Lender under any Letter of Credit, together with
interest as hereinafter provided.
(d) Reimbursement. In the event of any drawing under any Letter of
Credit, the Issuing Lender will promptly notify the Borrower. In the case of
Letters of Credit denominated in Dollars or an Available Foreign Currency,
unless the Borrower shall immediately notify the Issuing Lender that the
Borrower intends to otherwise reimburse the Issuing Lender for such drawing, the
Borrower shall be deemed to have requested that the Lenders make a Revolving
Loan or a Foreign Currency Loan, as applicable, in the same currency as the
respective Letter of Credit in an amount equal to such drawing as provided in
subsection (e) hereof on the related Letter of Credit, the proceeds of which
will be used to satisfy the related reimbursement obligations. In the case of
the Letters of Credit denominated in an Additional Foreign Currency, unless the
Borrower shall immediately notify the Issuing Lender that the Borrower intends
to otherwise reimburse the Issuing Lender for such drawing, the Borrower shall
be deemed to have requested that the Lenders make a Revolving Loan in the Dollar
Amount (as of the date of such drawing) equal to such drawing as provided in
subsection (e) hereof on the related Letter of Credit, the proceeds of which
will be used to satisfy the related reimbursement obligations. The Borrower
promises to reimburse the Issuing Lender on the day of drawing under any Letter
of Credit (either with the proceeds of a Revolving Loan or Foreign Currency
Loan, as applicable, obtained hereunder or otherwise) in same day funds. If the
Borrower shall fail to reimburse the Issuing Lender as provided hereinabove, the
unreimbursed amount of such drawing shall bear interest at a per annum rate
equal to the Base Rate plus two percent (2%). The Borrower's reimbursement
obligations hereunder shall be absolute and unconditional under all
circumstances irrespective of any rights of setoff, counterclaim or defense to
payment the Borrower may claim or have against the Issuing Lender, the Agent,
the Lenders, the beneficiary of the Letter of Credit drawn upon or any other
Person, including without limitation any defense based on any failure of the
Borrower to receive consideration or the legality, validity, regularity or
unenforceability of the Letter of Credit. In the case of Letters of Credit
denominated in Dollars or an Available Foreign Currency, the Issuing Lender will
promptly notify the other Lenders of the amount of any unreimbursed drawing and
each Lender shall promptly pay to the Agent for the account of the Issuing
Lender in the same currency as the respective Letter of Credit, in immediately
available funds, the amount of such Lender's pro rata share of such unreimbursed
drawing. In the case of Letters of Credit denominated in an Additional Foreign
Currency, the Issuing Lender will promptly notify the other Lenders of the
amount of any unreimbursed drawing and each Lender shall promptly pay to the
Agent for the account of the Issuing Lender the Dollar Amount (as of the date of
such unreimbursed drawing) in immediately available funds, the amount of such
Lender's pro rata share of such unreimbursed drawing. Such payment shall be made
on the day such notice is received by such Lender from the Issuing Lender if
such notice is received at or before 2:00 P.M. (Dallas, Texas time) otherwise
such payment shall be made at or before 12:00 Noon (Dallas, Texas time) on the
Business Day next succeeding the day such notice is received. If such Lender
does not pay such amount to the Issuing Lender in full upon such request, such
Lender shall, on demand, pay to the Agent for the account of the Issuing Lender
interest on the unpaid amount during the period from the date of such drawing
until such Lender pays such amount to the Issuing Lender in full at a rate per
annum equal to, if paid within two (2) Business Days of the date that such
Lender is required to make payments of such amount pursuant to the preceding
sentence, the Federal Funds Rate and thereafter at a rate equal to the Base
Rate. Each Lender's obligation to make such payment to the Issuing Lender, and
the right of the Issuing Lender to receive the same, shall be
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absolute and unconditional, shall not be affected by any circumstance whatsoever
and without regard to the termination of this Credit Agreement or the
Commitments hereunder, the existence of a Default or Event of Default or the
acceleration of the obligations of the Borrower hereunder and shall be made
without any offset, abatement, withholding or reduction whatsoever.
Simultaneously with the making of each such payment by a Lender to the Issuing
Lender, such Lender shall, automatically and without any further action on the
part of the Issuing Lender or such Lender, acquire a participation in an amount
equal to such payment (excluding the portion of such payment constituting
interest owing to the Issuing Lender) in the related unreimbursed drawing
portion of the LOC Obligation and in the interest thereon and in the related LOC
Documents, and shall have a claim against the Borrower with respect thereto.
(e) Repayment with Revolving Loans and Foreign Currency Loans. In the
case of any Letter of Credit denominated in Dollars or an Available Foreign
Currency, on any day on which the Borrower shall have requested, or been deemed
to have requested, a Revolving Loan advance or Foreign Currency Loan advance, as
appropriate, to reimburse a drawing under a Letter of Credit, the Agent shall
give notice to the Lenders that a Revolving Loan or Foreign Currency Loan, as
appropriate, has been requested or deemed requested by the Borrower to be made
in connection with a drawing under a Letter of Credit, in which case a Revolving
Loan advance or Foreign Currency Loan advance, as appropriate, comprised of Base
Rate Loans (or Eurocurrency Loans to the extent the Borrower has complied with
the procedures of Section 2.1(b)(i) with respect thereto) shall be immediately
made to the Borrower by all Lenders (notwithstanding any termination of the
Commitments pursuant to Section 9.2) pro rata based on the respective Revolving
Commitment Percentages of the Lenders (determined before giving effect to any
termination of the Commitments pursuant to Section 9.2) and the proceeds thereof
shall be paid directly to the Issuing Lender for application to the respective
LOC Obligations. In the case of any Letter of Credit denominated in an
Additional Foreign Currency, on any day on which the Borrower shall have
requested, or been deemed to have requested, a Revolving Loan advance, to
reimburse a drawing under a Letter of Credit denominated in an Additional
Foreign Currency, the Agent shall give notice to the Lenders that a Revolving
Loan advance has been requested or deemed requested by the Borrower to be made
in connection with a drawing under a Letter of Credit denominated in an
Additional Foreign Currency, in which case a Revolving Loan advance in the
Dollar Amount (on the date of such drawing) equal to such drawing comprised of
Base Rate Loans (or Eurocurrency Loans to the extent the Borrower has complied
with the procedures of Section 2.1(b)(i) with respect thereto) shall be
immediately made to the Borrower by all Lenders (notwithstanding any termination
of Commitments pursuant to Section 9.2) pro rata based on the respective
Revolving Commitment Percentages of the Lenders (determined before giving effect
to any termination of the Commitments pursuant to Section 9.2) and the proceeds
thereof shall be paid directly to the Issuing Lender for application to the
respective LOC Obligations. Each such Lender hereby irrevocably agrees to make
its pro rata share of each such Revolving Loan or Foreign Currency Loan, as the
case may be, immediately upon any such request or deemed request in the amount,
in the manner and on the date specified in the preceding sentence
notwithstanding (i) the amount of such borrowing may not comply with the minimum
amount for advances of Revolving Loans or Foreign Currency Loans otherwise
required hereunder, (ii) whether any conditions specified in Section 5.2 are
then satisfied, (iii) whether a Default or an Event of Default then exists, (iv)
failure for any such request or deemed request for Revolving Loan or Foreign
Currency Loan, as the case may be, to be made by the time otherwise required
hereunder, (v) whether the date of such borrowing is a
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date on which Revolving Loans or Foreign Currency Loans, as the case may be, are
otherwise permitted to be made hereunder or (vi) any termination of the
Commitments relating thereto immediately prior to or contemporaneously with such
borrowing. In the event that any Revolving Loan or Foreign Currency Loan, as the
case may be, cannot for any reason be made on the date otherwise required above
(including, without limitation, as a result of the commencement of a proceeding
under the Bankruptcy Code with respect to the Borrower), then each such Lender
hereby agrees that it shall forthwith purchase (as of the date such borrowing
would otherwise have occurred, but adjusted for any payments received from the
Borrower on or after such date and prior to such purchase) from the Issuing
Lender such participation in the outstanding LOC Obligations as shall be
necessary to cause each such Lender to share in such LOC Obligations ratably
(based upon the respective Revolving Commitment Percentages of the Lenders
(determined before giving effect to any termination of the Commitments pursuant
to Section 9.2)), provided that in the event such payment is not made on the day
of drawing, such Lender shall pay in addition to the Issuing Lender interest on
the amount of its unfunded Participation Interest at a rate equal to, if paid
within two (2) Business Days of the date of drawing, the Federal Funds Rate, and
thereafter at the Base Rate.
(f) Designation of Subsidiary as Account Party. Notwithstanding
anything to the contrary set forth in this Credit Agreement, including without
limitation Section 2.2(a), a Letter of Credit issued hereunder may contain a
statement to the effect that such Letter of Credit is issued for the account of
a Subsidiary of the Borrower, provided that notwithstanding such statement, the
Borrower shall be the actual account party for all purposes of this Credit
Agreement for such Letter of Credit and such statement shall not affect the
Borrower's reimbursement obligations hereunder with respect to such Letter of
Credit.
(g) Renewal, Extension. The renewal or extension of any Letter of
Credit shall, for purposes hereof, be treated in all respects the same as the
issuance of a new Letter of Credit hereunder.
(h) Uniform Customs and Practices. The Issuing Lender may have the
Letters of Credit be subject to The Uniform Customs and Practice for Documentary
Credits, as published as of the date of issue by the International Chamber of
Commerce (the "UCP"), in which case the UCP may be incorporated therein and
deemed in all respects to be a part thereof.
(i) Indemnification; Nature of Issuing Lender's Duties.
(i) In addition to its other obligations under this Section 2.2,
the Borrower hereby agrees to protect, indemnify, pay and save the
Issuing Lender harmless from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including
reasonable attorneys' fees actually incurred) that the Issuing Lender
may incur or be subject to as a consequence, direct or indirect, of (A)
the issuance of any Letter of Credit or (B) the failure of the Issuing
Lender to honor a drawing under a Letter of Credit as a result of any
act or omission, whether rightful or wrongful, of any present or future
de jure or de facto government or governmental authority (all such acts
or omissions, herein called "Government Acts").
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(ii) As between the Borrower and the Issuing Lender, the Borrower
shall assume all risks of the acts, omissions or misuse of any Letter of
Credit by the beneficiary thereof. The Issuing Lender shall not be
responsible: (A) for the form, validity, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any party in
connection with the application for and issuance of any Letter of
Credit, even if it should in fact prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent or forged; (B) for the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, that may
prove to be invalid or ineffective for any reason; (C) for errors,
omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex or otherwise, whether or not
they be in cipher; (D) for any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under a
Letter of Credit or of the proceeds thereof; and (E) for any
consequences arising from causes beyond the control of the Issuing
Lender, including, without limitation, any Government Acts. None of the
above shall affect, impair, or prevent the vesting of the Issuing
Lender's rights or powers hereunder.
(iii) In furtherance and extension and not in limitation of the
specific provisions hereinabove set forth, any action taken or omitted
by the Issuing Lender, under or in connection with any Letter of Credit
or the related certificates, if taken or omitted in good faith, shall
not put such Issuing Lender under any resulting liability to the
Borrower. It is the intention of the parties that this Credit Agreement
shall be construed and applied to protect and indemnify the Issuing
Lender against any and all risks involved in the issuance of the Letters
of Credit, all of which risks are hereby assumed by the Borrower,
including, without limitation, any and all Government Acts. The Issuing
Lender shall not, in any way, be liable for any failure by the Issuing
Lender or anyone else to pay any drawing under any Letter of Credit as a
result of any Government Acts or any other cause beyond the control of
the Issuing Lender.
(iv) Nothing in this subsection (i) is intended to limit the
reimbursement obligations of the Borrower contained in subsection (d)
above. The obligations of the Borrower under this subsection (i) shall
survive the termination of this Credit Agreement. No act or omissions of
any current or prior beneficiary of a Letter of Credit shall in any way
affect or impair the rights of the Issuing Lender to enforce any right,
power or benefit under this Credit Agreement.
(v) Notwithstanding anything to the contrary contained in this
subsection (i), the Borrower shall have no obligation to indemnify the
Issuing Lender in respect of any liability incurred by the Issuing
Lender (A) arising solely out of the gross negligence or willful
misconduct of the Issuing Lender, as determined by a court of competent
jurisdiction, or (B) caused by the Issuing Lender's failure to pay under
any Letter of Credit after presentation to it of a request strictly
complying with the terms and conditions of such Letter of Credit, as
determined by a court of competent jurisdiction, unless such payment is
prohibited by any law, regulation, court order or decree.
(j) Responsibility of Issuing Lender. It is expressly understood
and agreed that the obligations of the Issuing Lender hereunder to the Lenders
are only those expressly set forth in this
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Credit Agreement and that the Issuing Lender shall be entitled to assume that
the conditions precedent set forth in Section 5.2 have been satisfied unless it
shall have acquired actual knowledge that any such condition precedent has not
been satisfied; provided, however, that nothing set forth in this Section 2.2
shall be deemed to prejudice the right of any Lender to recover from the Issuing
Lender any amounts made available by such Lender to the Issuing Lender pursuant
to this Section 2.2 in the event that it is determined by a court of competent
jurisdiction that the payment with respect to a Letter of Credit constituted
gross negligence or willful misconduct on the part of the Issuing Lender.
(k) Conflict with LOC Documents. In the event of any conflict between
this Credit Agreement and any LOC Document (including any letter of credit
application), this Credit Agreement shall control.
2.3 FOREIGN CURRENCY LOAN SUBFACILITY.
(a) Foreign Currency Commitment. During the Commitment Period, each
Lender severally agrees to make certain foreign currency revolving loans in
Available Foreign Currencies ("Foreign Currency Loans") to the Borrower from
time to time in the amount of such Lender's Foreign Currency Commitment
Percentage of such Foreign Currency Loans; provided, however, that the Dollar
Amount (as determined as of the most recent Determination Date) of the sum of
Foreign Currency Loans outstanding at any time shall not exceed THIRTY MILLION
DOLLARS ($30,000,000) (the "Foreign Currency Committed Amount"); provided,
further, (i) with regard to each Lender individually, (A) the Dollar Amount
(determined as of the most recent Determination Date) of such Lender's Revolving
Commitment Percentage of the sum of the Revolving Loans plus Foreign Currency
Loans plus LOC Obligations plus Swingline Loans shall not exceed such Lender's
Revolving Commitment Percentage of the Revolving Committed Amount, and (B) the
Dollar Amount (determined as of the most recent Determination Date) of such
Lender's portion (including participation interests therein) of the Foreign
Currency Loans outstanding shall not exceed such Lender's Foreign Currency
Commitment Percentage of the Foreign Currency Committed Amount, (ii) with regard
to the Lenders collectively, the Dollar Amount (as determined as of the most
recent Determination Date) of the Revolving Obligations shall not exceed the
Aggregate Revolving Committed Amount, as reduced and (iii) with regard to the
Lenders collectively, (A) the Dollar Amount (determined as of the most recent
Determination Date) of the sum of Foreign Currency Loans plus LOC Obligations
with respect to Letters of Credit denominated in an Available Foreign Currency
shall not exceed THIRTY MILLION DOLLARS ($30,000,000). Foreign Currency Loans
shall consist solely of Eurocurrency Loans and may be repaid and reborrowed in
accordance with the provisions hereof. For purposes hereof, Eurocurrency Loans
with different Interest Periods and/or in different currencies shall be
considered as separate Eurocurrency Loans, even if they begin on the same date,
although borrowings, extensions and conversions may, in accordance with the
provisions hereof, be combined at the end of existing Interest Periods to
constitute a new Eurocurrency Loan with a single Interest Period and in the same
currency.
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(b) Foreign Currency Loan Borrowings.
(i) Notice of Borrowing. The Borrower shall request a Foreign
Currency Loan borrowing by written notice (or telephone notice promptly
confirmed in writing) to the Agent not later than 11:00 A.M. (Dallas,
Texas time) on the third Business Day prior to the date of the requested
borrowing. Each such request for borrowing shall be irrevocable and
shall specify (A) that a Foreign Currency Loan is requested, (B) the
requested Available Foreign Currency, (C) the date of the requested
borrowing (which shall be a Business Day), (D) the aggregate principal
amount to be borrowed and (E) the Interest Period(s) therefor. If the
Borrower shall fail to specify in any such Notice of Borrowing an
applicable Interest Period, then such notice shall be deemed to be a
request for an Interest Period of one month. The Agent shall give notice
to each Lender promptly upon receipt of each Notice of Borrowing, the
contents thereof and each such Lender's share of any borrowing to be
made pursuant thereto.
(ii) Minimum Amounts. Each Foreign Currency Loan shall be in a
minimum aggregate principal amount equal to the applicable Foreign
Currency Equivalent of $2,000,000 and integral multiples of the
applicable Foreign Currency Equivalent of $100,000 in excess thereof (or
the remaining amount of the Foreign Currency Commitment, if less).
(iii) Advances. Each Lender will make its Foreign Currency
Commitment Percentage of each Foreign Currency Loan borrowing available
to the Agent by 1:00 P.M., local time in the place where such deposit is
required to be made by the succeeding terms hereof, on the date
specified in the applicable Notice of Borrowing by deposit with the
Agent, at the same place and same account specified in Section 3.14(b)
for payments by the Borrower in the applicable Available Foreign
Currency of same day funds in the applicable Available Foreign Currency.
Such deposit will be made to such accounts in the primary market for
such Foreign Currencies as the Agent shall specify from time to time by
notice to the Lenders. To the extent funds are received from the
Lenders, the Agent shall promptly make such funds available to the
Borrower by wire transfer to such accounts as the Borrower shall have
specified to the Agent.
(c) Repayment. The principal amount of all Foreign Currency Loans
shall be due and payable in full in the applicable Available Foreign Currency on
the Maturity Date.
(d) Interest. Subject to the provisions of Section 3.1, Foreign
Currency Loans shall bear interest at a per annum rate equal to the Eurocurrency
Rate plus the Applicable Percentage. Interest on Foreign Currency Loans shall be
payable (in the applicable Available Foreign Currency) in arrears on each
applicable Interest Payment Date (or at such other times as may be specified
herein).
(e) Foreign Currency Notes. The Foreign Currency Loans shall be
evidenced by a Revolving Note duly executed by the Borrower in favor of each
Lender.
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2.4 SWINGLINE LOAN SUBFACILITY.
(a) Swingline Commitment. Subject to the terms and conditions hereof,
the Swingline Lender, in its individual capacity, agrees to make certain
revolving credit loans to the Borrower (each a "Swingline Loan" and,
collectively, the "Swingline Loans") from time to time from the Closing Date
until the earlier of (i) the Business Day one day prior to the date of
NationsBank's resignation as Agent and (ii) the Maturity Date for the purposes
hereinafter set forth; provided, however, (i) the aggregate amount of Swingline
Loans outstanding at any time shall not exceed TWENTY FIVE MILLION DOLLARS
($25,000,000.00) (the "Swingline Committed Amount"), and (ii) with regard to the
Lenders collectively, the amount of outstanding Revolving Obligations
outstanding (including the Dollar Amount (determined as of the most recent
Determination Date) of the outstanding Foreign Currency Loans) shall not exceed
the Aggregate Revolving Committed Amount, as reduced. Swingline Loans hereunder
shall be made in accordance with the provisions of this Section 2.4, and may be
repaid and reborrowed in accordance with the provisions hereof.
(b) Swingline Loan Advances.
(i) Notices; Disbursement. Whenever the Borrower desires a
Swingline Loan advance hereunder it shall give written notice (or
telephone notice promptly confirmed in writing) to the Swingline
Lender not later than 11:00 A.M. (Dallas, Texas time) on the
Business Day of the requested Swingline Loan advance. Each such
notice shall be irrevocable and shall specify (A) that a
Swingline Loan advance is requested, (B) the date of the
requested Swingline Loan advance (which shall be a Business Day)
and (C) the principal amount of the Swingline Loan advance
requested. Each Swingline Loan shall have such maturity date as
the Swingline Lender and the Borrower shall agree upon receipt by
the Swingline Lender of any such notice from the Borrower. The
Swingline Lender shall initiate the transfer of funds
representing the Swingline Loan advance to the Borrower by 3:00
P.M. (Dallas, Texas time) on the Business Day of the requested
borrowing.
(ii) Minimum Amounts. Each Swingline Loan advance shall be
in a minimum principal amount of $1,000,000 and in integral
multiples of $100,000 in excess thereof (or the remaining amount
of the Swingline Committed Amount, if less).
(iii) Repayment of Swingline Loans. The principal amount
of all Swingline Loans shall be due and payable on the earlier of
(A) the Business Day one day prior to the date of NationsBank's
resignation as Agent hereunder and (B) the Maturity Date. The
Swingline Lender may, at any time, in its sole discretion, by
written notice to the Borrower and the Lenders, demand repayment
of its Swingline Loans by way of a Revolving Loan advance, in
which case the Borrower shall be deemed to have requested a
Revolving Loan advance comprised solely of Base Rate Loans in the
amount of such Swingline Loans; provided, however, that
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any such demand shall be deemed to have been given one Business
Day prior to the Maturity Date and on the date of the occurrence
of any Event of Default described in Section 9.1 and upon
acceleration of the indebtedness hereunder and the exercise of
remedies in accordance with the provisions of Section 9.2. Each
Lender hereby irrevocably agrees to make its pro rata share of
each such Revolving Loan in the amount, in the manner and on the
date specified in the preceding sentence notwithstanding (I) the
amount of such borrowing may not comply with the minimum amount
for advances of Revolving Loans otherwise required hereunder,
(II) whether any conditions specified in Section 5.2 are then
satisfied, (III) whether a Default or an Event of Default then
exists, (IV) failure of any such request or deemed request for
Revolving Loan to be made by the time otherwise required
hereunder, (V) whether the date of such borrowing is a date on
which Revolving Loans are otherwise permitted to be made
hereunder or (VI) any termination of the Commitments relating
thereto immediately prior to or contemporaneously with such
borrowing. In the event that any Revolving Loan cannot for any
reason be made on the date otherwise required above (including,
without limitation, as a result of the commencement of a
proceeding under the Bankruptcy Code with respect to the
Borrower or any other Credit Party), then each Lender hereby
agrees that it shall forthwith purchase (as of the date such
borrowing would otherwise have occurred, but adjusted for any
payments received from the Borrower on or after such date and
prior to such purchase) from the Swingline Lender such
participations in the outstanding Swingline Loans as shall be
necessary to cause each such Lender to share in such Swingline
Loans ratably based upon its Revolving Loan Commitment
Percentage of the Revolving Committed Amount (determined before
giving effect to any termination of the Commitments pursuant to
Section 3.4), provided that (A) all interest payable on the
Swingline Loans shall be for the account of the Swingline Lender
until the date as of which the respective participation is
purchased and (B) at the time any purchase of participations
pursuant to this sentence is actually made, the purchasing
Lender shall be required to pay to the Swingline Lender, to the
extent not paid to the Swingline Lender by the Borrower in
accordance with the terms of subsection (c) below, interest on
the principal amount of participation purchased for each day
from and including the day upon which such borrowing would
otherwise have occurred to but excluding the date of payment for
such participation, at the rate equal to the Federal Funds Rate.
(c) Interest on Swingline Loans. Subject to the provisions of Section
3.1, each Swingline Loan shall bear interest at per annum rate equal to the
Eurocurrency Rate plus 0.25% plus the Applicable Percentage. Interest on
Swingline Loans shall be payable in arrears on each applicable Interest Payment
Date (or at such other times as may be specified herein).
(d) Swingline Note. The Swingline Loans shall be evidenced by a duly
executed promissory note of the Borrower to the Swingline Lender in
substantially the form of Schedule 2.4(d).
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2.5 EXTENSION OF MATURITY DATE.
Not more than 60 days and not less than 45 days prior to the date
occurring one year from the Closing Date (the "Extension Date"), the Borrower
may request in writing that the Lenders extend the Maturity Date for an
additional one year period. Each Lender shall provide the Agent and the
Borrower, not less than 30 days prior to the Extension Date, with written notice
regarding whether it agrees to extend the Maturity Date. Each decision by a
Lender shall be in its sole discretion and failure by a Lender to give timely
written notice hereunder shall be deemed a decision by such Lender not to extend
the Maturity Date. If all of the Lenders timely agree in writing to extend the
Maturity Date, then the Maturity Date shall be extended for an additional one
year period pursuant to a duly executed written amendment to this Credit
Agreement. If any Lender fails to agree to extend the Maturity Date, then the
Borrower shall, on or before the Maturity Date, pay all outstanding Revolving
Obligations in full, together with accrued and unpaid interest thereon and all
other sums with respect thereto.
SECTION 3
OTHER PROVISIONS RELATING TO CREDIT FACILITIES
3.1 DEFAULT RATE.
Upon the occurrence, and during the continuance, of an Event of Default,
the principal of and, to the extent permitted by law, interest on the Loans and
any other amounts owing hereunder or under the other Credit Documents shall bear
interest, payable on demand, at a per annum rate 2% greater than the rate which
would otherwise be applicable (or if no rate is applicable, whether in respect
of interest, fees or other amounts, then 2% greater than the Base Rate).
3.2 EXTENSION AND CONVERSION.
Subject to the terms of Section 5.2, the Borrower shall have the option,
on any Business Day, to extend existing Loans into a subsequent permissible
Interest Period or to convert Loans into Loans of another interest rate type;
provided, however, that (i) except as provided in Section 3.8, Eurocurrency
Loans may be converted into Base Rate Loans only on the last day of the Interest
Period applicable thereto, (ii) Eurocurrency Loans may be extended, and Base
Rate Loans may be converted into Eurocurrency Loans, only if no Default or Event
of Default is in existence on the date of extension or conversion and the
conditions set forth in subsections (a), (b), (c) and (d) of Section 5.2 have
been satisfied, (iii) Loans extended as, or converted into, Eurocurrency Loans
shall be subject to the terms of the definition of "Interest Period" set forth
in Section 1.1 and shall be in such minimum amounts as provided in, with respect
to Revolving Loans, Section 2.1(b)(ii) or, with respect to Foreign Currency
Loans, Section 2.3(b)(ii) and (iv) any request for extension or conversion of a
Eurocurrency Loan which shall fail to specify an Interest Period shall be deemed
to be a request for an Interest Period of one month. Each such extension or
conversion shall be effected by the Borrower by giving a Notice of
Extension/Conversion (or telephone notice promptly confirmed in writing) to the
Agent prior to 11:00 A.M. (Dallas, Texas time) on the Business Day of, in the
case of the conversion of a Eurocurrency Loan into a Base Rate Loan, and on the
third Business Day prior to, in the case of the extension of a
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Eurocurrency Loan as, or conversion of a Base Rate Loan into, a Eurocurrency
Loan, the date of the proposed extension or conversion, specifying the date of
the proposed extension or conversion, the Loans to be so extended or converted,
the types of Loans into which such Loans are to be converted and, if
appropriate, the applicable Interest Periods with respect thereto. Each request
for extension or conversion shall be irrevocable and shall constitute a
representation and warranty by the Borrower of the matters specified in
subsections (a) through (d) of Section 5.2. In the event the Borrower fails to
request extension or conversion of any Eurocurrency Loan in accordance with this
Section, or any such conversion or extension is not permitted or required by
this Section, then (i) in the case of any Eurocurrency Loan which is not a
Foreign Currency Loan, such Eurocurrency Loan shall be automatically converted
into a Base Rate Loan at the end of the Interest Period applicable thereto and
(ii) in the case of any Foreign Currency Loan, such Eurocurrency Loan shall be
automatically continued as a Eurocurrency Loan in the same Available Foreign
Currency for an Interest Period of one month. The Agent shall give each Lender
notice as promptly as practicable of any such proposed extension or conversion
affecting any Loan.
3.3 PREPAYMENTS.
(a) Voluntary Prepayments. Loans may be repaid in whole or in part
without premium or penalty; provided that (i) any prepayment of Eurocurrency
Loans other than at the end of the Interest Period applicable thereto will be
subject to terms of Section 3.11, (ii) Eurocurrency Loans may be prepaid by the
Borrower only after giving three (3) Business Days' prior written notice to the
Agent of the requested prepayment, (iii) Base Rate Loans may be prepaid by the
Borrower by giving notice to the Agent prior to 11:00 a.m. (Dallas, Texas time)
of the requested prepayment, and (iv) each such partial prepayment shall be in a
minimum principal Dollar Amount of $1,000,000 in the case of Eurocurrency Loans,
and $1,000,000, in the case of Base Rate Loans, and in integral multiples of
$100,000 in excess thereof. Amounts prepaid hereunder may be reborrowed in
accordance with the provisions hereof. Any such voluntary prepayments shall be
applied first to Base Rate Loans and then to Eurocurrency Loans in direct order
of their Interest Period maturities.
(b) Mandatory Prepayments. If at any time (i) the Dollar Amount (as
determined as of the most recent Determination Date) of the Revolving
Obligations then outstanding shall exceed the Aggregate Revolving Committed
Amount, as reduced from time to time, (ii) the aggregate amount of LOC
Obligations outstanding shall exceed the LOC Committed Amount, or (iii) the
Dollar Amount (determined as of the most recent Determination Date) of Foreign
Currency Loans shall exceed the Foreign Currency Committed Amount, the Borrower
shall immediately make payment on the Loans and/or to a cash collateral account
in respect of the LOC Obligations, in an amount sufficient to eliminate the
deficiency. Any such mandatory prepayments shall be applied first to Loans in
the currency in which such payment is received, and first to Base Rate Loans and
then to Eurocurrency Loans in direct order of their Interest Period maturities
and then to a cash collateral account to secure LOC Obligations. Amounts prepaid
hereunder may be reborrowed in accordance with the provisions hereof.
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3.4 REDUCTIONS IN COMMITMENTS.
(a) Voluntary Reductions.
(i) Revolving Commitment. The Borrower may from time to time
permanently reduce the aggregate amount of the Revolving Commitments in
whole or in part without premium or penalty except as provided in
Section 3.11 upon three (3) Business Days' prior written notice to the
Agent, provided that (A) after giving effect to any voluntary reduction
the Dollar Amount (as determined as of the most recent Determination
Date) of the Revolving Obligations then outstanding shall not exceed the
Aggregate Revolving Committed Amount, as reduced from time to time, and
(B) partial reductions shall be in the minimum principal amount of
$1,000,000, and in integral multiples of $1,000,000 in excess thereof.
(iv) Foreign Currency Commitment. The Borrower may from time to
time permanently reduce the aggregate amount of the Foreign Currency
Commitments in whole or in part without premium or penalty except as
provided in Section 3.11 upon three (3) Business Days' prior written
notice to the Agent, provided that (A) after giving effect to any
voluntary reduction the Dollar Amount (as determined as of the most
recent Determination Date) of the Foreign Currency Loans then
outstanding shall not exceed the Foreign Currency Committed Amount, as
reduced from time to time, (B) after giving effect to any voluntary
reduction the Dollar Amount (as determined as of the most recent
Determination Date) of the Revolving Obligations then outstanding shall
not exceed the Aggregate Revolving Committed Amount, as reduced from
time to time and (C) partial reductions shall be in the minimum
principal amount of $1,000,000, and in integral multiples of $1,000,000
in excess thereof.
(b) Mandatory Reductions. At such time as the Borrower or any of its
Subsidiaries consummates an Asset Disposition, the Borrower shall immediately
notify the Agent of (a) the consummation of such Asset Disposition and (b) the
amount of Net Cash Proceeds received by the Borrower or Subsidiary in connection
with such Asset Disposition. The Credit Parties hereby agree that the aggregate
amount of the Revolving Commitments shall be permanently reduced by an amount
equal to the Net Cash Proceeds received by the Borrower or any Subsidiary from
each such Asset Disposition.
3.5 FEES.
(a) Unused Fee. In consideration of the Revolving Commitments
hereunder, the Borrower agrees to pay to the Agent, for the ratable benefit of
the Lenders, an unused fee (the "Unused Fee") equal to the Applicable Percentage
per annum for Unused Fees then in effect (calculated on the basis of actual
number of days elapsed in a year of 360 days) on the average daily unused
portion of the Revolving Committed Amount for the applicable period. The Unused
Fee shall accrue from the Closing Date and shall be payable quarterly in arrears
on the 15th day following the last day of each calendar quarter for the
immediately preceding quarter (or portion thereof) beginning with the first such
date to occur after the Closing Date. For purposes of
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computation of the Unused Fee, Swingline Loans shall not be counted toward or
considered usage under the Revolving Loan facility.
(b) Letter of Credit Fees.
(i) Letter of Credit Issuance Fee. In consideration of the
issuance of Letters of Credit hereunder, the Borrower promises to pay to
the Agent, for the account of each Lender a fee (the "Letter of Credit
Fee") on such Lender's Revolving Commitment Percentage of the average
daily maximum amount available to be drawn under each such Letter of
Credit computed at a per annum rate for each day from the date of
issuance to the date of expiration equal to the Applicable Percentage
for the Letter of Credit Fee. The Letter of Credit Fee will be payable
quarterly in arrears on the last Business Day of each March, June,
September and December for the immediately preceding quarter (or a
portion thereof).
(ii) Issuing Lender Fee. In addition to the Letter of Credit Fee
payable pursuant to clause (i) above, the Borrower promises to pay to
the applicable Issuing Lender for its own account without sharing by the
other Lenders (A) a letter of credit fronting fee of one-eighth percent
(1/8%) per annum on the average daily maximum amount available to be
drawn under outstanding Letters of Credit payable quarterly in arrears
with the Letter of Credit Fee, and (B) customary charges from time to
time of the Issuing Lender with respect to the issuance, amendment,
transfer, administration, cancellation and conversion of, and drawings
under, such Letters of Credit (collectively, the "Issuing Lender Fees").
(c) Administrative Fees. The Borrower agrees to pay to the Agent, for
its own account, an annual administrative fee and such other fees, if any,
referred to in the Agent's Fee Letter (collectively, the "Agent Fees").
3.6 CAPITAL ADEQUACY.
If any Lender has determined, after the date hereof, that the adoption
or the becoming effective of, or any change in, or any change by any
Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof in the interpretation or administration
of, any applicable law, rule or regulation regarding capital adequacy, or
compliance by such Lender with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such authority, central
bank or comparable agency, has or would have the effect of reducing the rate of
return on such Lender's capital or assets as a consequence of its commitments or
obligations hereunder to a level below that which such Lender could have
achieved but for such adoption, effectiveness, change or compliance (taking into
consideration such Lender's policies with respect to capital adequacy), then,
upon notice from such Lender to the Borrower, the Borrower shall be obligated to
pay to such Lender such additional amount or amounts as will compensate such
Lender for such reduction. Each determination by any such Lender of amounts
owing under this Section shall, absent manifest error, be conclusive and binding
on the parties hereto.
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3.7 INABILITY TO DETERMINE INTEREST RATE.
If prior to the first day of any Interest Period, the Agent shall have
determined (which determination shall be conclusive and binding upon the
Borrower) that, by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining the Eurocurrency
Rate for such Interest Period, the Agent shall give telecopy or telephonic
notice thereof to the Borrower and the Lenders as soon as practicable
thereafter. If such notice is given (a) any Eurocurrency Loans requested to be
made on the first day of such Interest Period shall be made as Base Rate Loans
and (b) any Loans that were to have been converted on the first day of such
Interest Period to or continued as Eurocurrency Loans shall be converted to or
continued as Base Rate Loans. Until such notice has been withdrawn by the Agent,
no further Eurocurrency Loans shall be made or continued as such, nor shall the
Borrower have the right to convert Base Rate Loans to Eurocurrency Loans.
3.8 ILLEGALITY.
Notwithstanding any other provision herein, if the adoption of or any
change in any Requirement of Law or in the interpretation or application thereof
occurring after the Closing Date shall make it unlawful for any Lender to make
or maintain Eurocurrency Loans or Foreign Currency Loans as contemplated by this
Credit Agreement, (a) such Lender shall promptly give written notice of such
circumstances to the Borrower and the Agent (which notice shall be withdrawn
whenever such circumstances no longer exist), (b) the commitment of such Lender
hereunder to make Eurocurrency Loans or Foreign Currency Loans, continue
Eurocurrency Loans or Foreign Currency Loans as such and convert a Base Rate
Loan to Eurocurrency Loans or Foreign Currency Loans, shall forthwith be
canceled and, until such time as it shall no longer be unlawful for such Lender
to make or maintain Eurocurrency Loans or Foreign Currency Loans, such Lender
shall then have a commitment only to make a Base Rate Loan when a Eurocurrency
Loan or Foreign Currency Loan is requested and (c) such Lender's Loans then
outstanding as Eurocurrency Loans or Foreign Currency Loans, if any, shall be
converted automatically to Base Rate Loans on the respective last days of the
then current Interest Periods with respect to such Loans or within such earlier
period as required by law. If any such conversion of a Eurocurrency Loan or
Foreign Currency Loan occurs on a day which is not the last day of the then
current Interest Period with respect thereto, the Borrower shall pay to such
Lender such amounts, if any, as may be required pursuant to Section 3.11.
3.9 REQUIREMENTS OF LAW.
If, after the date hereof, the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof applicable to
any Lender, or compliance by any Lender with any request or directive (whether
or not having the force of law) from any central bank or other Governmental
Authority, in each case made subsequent to the Closing Date (or, if later, the
date on which such Lender becomes a Lender):
(a) shall subject such Lender to any tax of any kind whatsoever with
respect to any Letter of Credit, any Eurocurrency Loans made by it or its
obligation to make Eurocurrency Loans, or change the basis of taxation of
payments to such Lender in respect thereof (except for (i) Non-Excluded Taxes
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covered by Section 3.10 (including Non-Excluded Taxes imposed solely by reason
of any failure of such Lender to comply with its obligations under Section
3.10(b)) and (ii) changes in taxes measured by or imposed upon the overall net
income, or franchise tax (imposed in lieu of such net income tax), of such
Lender or its applicable lending office, branch, or any affiliate thereof));
(b) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by, deposits
or other liabilities in or for the account of, advances, loans or other
extensions of credit by, or any other acquisition of funds by, any office of
such Lender which is not otherwise included in the determination of the
Eurocurrency Rate hereunder; or
(c) shall impose on such Lender any other condition (excluding any
tax of any kind whatsoever);
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurocurrency Loans or issuing or participating in
Letters of Credit or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, upon notice to the Borrower from such Lender,
through the Agent, in accordance herewith, the Borrower shall be obligated to
promptly pay such Lender, upon its demand, any additional amounts necessary to
compensate such Lender for such increased cost or reduced amount receivable,
provided that, in any such case, the Borrower may elect to convert the
Eurocurrency Loans made by such Lender hereunder to Base Rate Loans by giving
the Agent at least one Business Day's notice of such election, in which case the
Borrower shall promptly pay to such Lender, upon demand, without duplication,
such amounts, if any, as may be required pursuant to Section 3.11 and this
Section 3.9. If any Lender becomes entitled to claim any additional amounts
pursuant to this subsection, it shall provide prompt notice thereof to the
Borrower, through the Agent, certifying (x) that one of the events described in
this paragraph (a) has occurred and describing in reasonable detail the nature
of such event, (y) as to the increased cost or reduced amount resulting from
such event and (z) as to the additional amount demanded by such Lender and a
reasonably detailed explanation of the calculation thereof. Such a certificate
as to any additional amounts payable pursuant to this subsection submitted by
such Lender, through the Agent, to the Borrower shall be conclusive and binding
on the parties hereto in the absence of manifest error. This covenant shall
survive the termination of this Credit Agreement and the payment of the Loans
and all other amounts payable hereunder.
3.10 TAXES.
(a) Except as provided below in this subsection, all payments made by
the Borrower under this Credit Agreement and any Notes shall be made free and
clear of, and without deduction or withholding for or on account of, any present
or future income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any court, or governmental body, agency or other
official, excluding taxes measured by or imposed upon the overall net income of
any Lender or its applicable lending office, or any branch or affiliate thereof,
and all franchise taxes, branch taxes, taxes on doing business or taxes on the
overall capital or net worth of any Lender or its applicable lending office, or
any branch or affiliate thereof, in each case imposed in lieu of net income
taxes, imposed: (i) by the jurisdiction under the laws of which
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such Lender, applicable lending office, branch or affiliate is organized or is
located, or in which its principal executive office is located, or any nation
within which such jurisdiction is located or any political subdivision thereof;
or (ii) by reason of any connection between the jurisdiction imposing such tax
and such Lender, applicable lending office, branch or affiliate other than a
connection arising solely from such Lender having executed, delivered or
performed its obligations, or received payment under or enforced, this Credit
Agreement or any Notes. If any such non-excluded taxes, levies, imposts, duties,
charges, fees, deductions or withholdings ("Non-Excluded Taxes") are required to
be withheld from any amounts payable to the Agent or any Lender hereunder or
under any Notes, (A) the amounts so payable to the Agent or such Lender shall be
increased to the extent necessary to yield to the Agent or such Lender (after
payment of all Non-Excluded Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Credit Agreement and
any Notes, provided, however, that the Borrower shall be entitled to deduct and
withhold any Non-Excluded Taxes and shall not be required to increase any such
amounts payable to any Lender that is not organized under the laws of the United
States of America or a state thereof if such Lender fails to comply with the
requirements of paragraph (b) of this subsection whenever any Non-Excluded Taxes
are payable by the Borrower, and (B) as promptly as possible thereafter the
Borrower shall send to the Agent for its own account or for the account of such
Lender, as the case may be, a certified copy of an original official receipt
received by the Borrower showing payment thereof. If the Borrower fails to pay
any Non-Excluded Taxes when due to the appropriate taxing authority or fails to
remit to the Agent the required receipts or other required documentary evidence,
the Borrower shall indemnify the Agent and the Lenders for any incremental
taxes, interest or penalties that may become payable by the Agent or any Lender
as a result of any such failure. The agreements in this subsection shall survive
the termination of this Credit Agreement and the payment of the Loans and all
other amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof shall:
(X) (i) on or before the date of any payment by the
Borrower under this Credit Agreement or Notes to such Lender,
deliver to the Borrower and the Agent (A) two (2) duly completed
copies of United States Internal Revenue Service Form 1001 or 4224,
or successor applicable form, as the case may be, certifying that it
is entitled to receive payments under this Credit Agreement and any
Notes without deduction or withholding of any United States federal
income taxes and (B) an Internal Revenue Service Form W-8 or W-9, or
successor applicable form, as the case may be, certifying that it is
entitled to an exemption from United States backup withholding tax;
(ii) deliver to the Borrower and the Agent two (2)
further copies of any such form or certification on or before the
date that any such form or certification expires or becomes obsolete
and after the occurrence of any event requiring a change in the most
recent form previously delivered by it to the Borrower; and
(iii) obtain such extensions of time for filing and
complete such forms or certifications as may reasonably be requested
by the Borrower or the Agent; or
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(Y) in the case of any such Lender that is not a "bank"
within the meaning of Section 881(c)(3)(A) of the Internal
Revenue Code, (i) represent to the Borrower (for the benefit of
the Borrower and the Agent) that it is not a bank within the
meaning of Section 881(c)(3)(A) of the Internal Revenue Code,
(ii) furnish to the Borrower on or before the date of any payment
by the Borrower, with a copy to the Agent two (2) accurate and
complete original signed copies of Internal Revenue Service Form
W-8, or successor applicable form certifying to such Lender's
legal entitlement at the date of such certificate to an exemption
from U.S. withholding tax under the provisions of Section 881(c)
of the Internal Revenue Code with respect to payments to be made
under this Credit Agreement and any Notes (and to deliver to the
Borrower and the Agent two (2) further copies of such form on or
before the date it expires or becomes obsolete and after the
occurrence of any event requiring a change in the most recently
provided form and, if necessary, obtain any extensions of time
reasonably requested by the Borrower or the Agent for filing and
completing such forms), and (iii) to the extent legally entitled
to do so, upon reasonable request by the Borrower, provide to the
Borrower (for the benefit of the Borrower and the Agent) such
other forms as may be reasonably required in order to establish
the legal entitlement of such Lender to an exemption from
withholding with respect to payments under this Credit Agreement
and any Notes;
unless in any such case any change in treaty, law or regulation has occurred
after the date such Person becomes a Lender hereunder which renders all such
forms inapplicable or which would prevent such Lender from duly completing and
delivering any such form with respect to it and such Lender so advises the
Borrower and the Agent. Each Person that shall become a Lender or a participant
of a Lender pursuant to subsection 11.3 shall, upon the effectiveness of the
related transfer, be required to provide all of the forms, certifications and
statements required pursuant to this subsection, provided that in the case of a
participant of a Lender the obligations of such participant of a Lender pursuant
to this subsection (b) shall be determined as if the participant of a Lender
were a Lender except that such participant of a Lender shall furnish all such
required forms, certifications and statements to the Lender from which the
related participation shall have been purchased.
3.11 INDEMNITY.
The Borrower promises to indemnify each Lender and to hold each Lender
harmless from any loss or expense which such Lender may sustain or incur (other
than through such Lender's gross negligence or willful misconduct) as a
consequence of (a) the Borrower's failure to make a borrowing of, conversion
into or continuation of Eurocurrency Loans after the Borrower has given a notice
requesting the same in accordance with the provisions of this Credit Agreement,
(b) the Borrower's failure to make a prepayment of a Eurocurrency Loan after the
Borrower has given a notice thereof in accordance with the provisions of this
Credit Agreement or (c) the making of a prepayment of Eurocurrency Loans on a
day which is not the last day of an Interest Period with respect thereto. With
respect to Eurocurrency Loans, such indemnification may include an amount equal
to the excess, if any, of (i) the amount of interest which would have accrued on
the amount so prepaid, or not so borrowed, converted or continued, for the
period from the date of such prepayment or of such failure to borrow, convert or
continue to the last day of the applicable Interest Period (or, in the case of a
failure
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to borrow, convert or continue, the Interest Period that would have commenced on
the date of such failure) in each case at the applicable rate of interest for
such Eurocurrency Loans provided for herein over (ii) the amount of interest (as
reasonably determined by such Lender) which would have accrued to such Lender on
such amount by placing such amount on deposit for a comparable period with
leading banks in the interbank Eurocurrency market. The covenants of the
Borrower set forth in this Section 3.11 shall survive the termination of this
Credit Agreement and the payment of the Loans and all other amounts payable
hereunder.
3.12 PRO RATA TREATMENT.
Except to the extent otherwise provided herein:
(a) Loans. Each Extension of Credit in respect of Revolving Loans,
Foreign Currency Loans and LOC Obligations and payments of principal, interest
and fees (including Unused Fee and Letter of Credit Fee) on or in respect
thereof and each reduction in Commitments, relating thereto, and each conversion
or extension of such Loans and Revolving Obligations, shall be allocated pro
rata among the Lenders in accordance with the respective principal amounts of
their outstanding Revolving Loans or Foreign Currency Loans and Participation
Interests.
(b) Advances. Unless the Agent shall have been notified in writing by
any Lender prior to a borrowing that such Lender will not make the amount that
would constitute its ratable share of such borrowing available to the Agent, the
Agent may assume that such Lender is making such amount available to the Agent,
and the Agent may, in reliance upon such assumption, make available to the
Borrower a corresponding amount. If such amount is not made available to the
Agent by such Lender within the time period specified therefor hereunder, such
Lender shall pay to the Agent, on demand, such amount with interest thereon (or,
in the case of a Foreign Currency Loan interest on the daily Dollar Equivalent
thereof) at a rate equal to the Federal Funds Rate for the period until such
Lender makes such amount immediately available to the Agent. A certificate of
the Agent submitted to any Lender with respect to any amounts owing under this
subsection shall be conclusive in the absence of manifest error.
3.13 SHARING OF PAYMENTS.
The Lenders agree among themselves that, in the event that any Lender
shall obtain payment in respect of any Loan, LOC Obligations or any other
obligation owing to such Lender under this Credit Agreement through the exercise
of a right of setoff, banker's lien or counterclaim, or pursuant to a secured
claim under Section 506 of Title 11 of the United States Code or other security
or interest arising from, or in lieu of, such secured claim, received by such
Lender under any applicable bankruptcy, insolvency or other similar law or
otherwise, or by any other means, in excess of its pro rata share of such
payment as provided for in this Credit Agreement, such Lender shall promptly
purchase from the other Lenders a participation in such Loans, LOC Obligations
and other obligations in such amounts, and make such other adjustments from time
to time, as shall be equitable to the end that all Lenders share such payment in
accordance with their respective Revolving Commitment Percentage as provided for
in this Credit Agreement. The Lenders further agree among themselves
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that if payment to a Lender obtained by such Lender through the exercise of a
right of setoff, banker's lien, counterclaim or other event as aforesaid shall
be rescinded or must otherwise be restored, each Lender which shall have shared
the benefit of such payment shall, by repurchase of a participation theretofore
sold, return its share of that benefit (together with its share of any accrued
interest payable with respect thereto) to each Lender whose payment shall have
been rescinded or otherwise restored. The Borrower agrees that any Lender so
purchasing such a participation may, to the fullest extent permitted by law,
exercise all rights of payment, including setoff, banker's lien or counterclaim,
with respect to such participation as fully as if such Lender were a holder of
such Loan, LOC Obligations or other obligation in the amount of such
participation. Except as otherwise expressly provided in this Credit Agreement,
if any Lender or the Agent shall fail to remit to the Agent or any other Lender
an amount payable by such Lender or the Agent to the Agent or such other Lender
pursuant to this Credit Agreement on the date when such amount is due, such
payments shall be made together with interest thereon for each date from the
date such amount is due until the date such amount is paid to the Agent or such
other Lender at a rate per annum equal to the Federal Funds Rate. If under any
applicable bankruptcy, insolvency or other similar law, any Lender receives a
secured claim in lieu of a setoff to which this Section 3.13 applies, such
Lender shall, to the extent practicable, exercise its rights in respect of such
secured claim in a manner consistent with the rights of the Lenders under this
Section 3.13 to share in the benefits of any recovery on such secured claim.
3.14 PAYMENTS, COMPUTATIONS, ETC.
(a) Each payment on account of an amount due from the Borrower
hereunder or under any other Credit Document shall be made by the Borrower to
the Administrative Agent for the pro rata account of the Lenders entitled to
receive such payment as provided herein in the currency in which such amount is
denominated and in such funds as are customary at the place and time of payment
for the settlement of international payments in such currency. Without limiting
the terms of the preceding sentence, accrued interest on any Loans denominated
in a Foreign Currency shall be payable in the same Foreign Currency as such
Loan. Upon request, the Agent will give the Borrower a statement showing the
computation used in calculating such amount, which statement shall be conclusive
in the absence of manifest error. The obligation of the Borrower to make each
payment on account of such amount in the currency in which such amount is
denominated shall not be discharged or satisfied by any tender, or any recovery
pursuant to any judgment, which is expressed in or converted into any other
currency, except to the extent such tender or recovery shall result in the
actual receipt by the Agent of the full amount in the appropriate currency
payable hereunder. The Borrower agrees that its obligation to make payment in a
foreign currency shall be enforceable as an additional or alternative claim for
recovery in such foreign currency in an amount (if any) by which the amount
actually received shall fall short of the full amount of such foreign currency
payable hereunder, and shall not be affected by judgment being obtained for such
amount.
(b) Except as otherwise specifically provided herein, all payments of
principal, interest and other amounts to be made by the Borrower under this
Credit Agreement and the other Credit Documents shall be made to the Agent at
the Agency Services Address in Dollars and in immediately available funds,
without setoff, deduction, counterclaim or withholding of any kind, not later
than 2:00 P.M. (Dallas, Texas time) on the date when due. Payments received
after such time shall be deemed to have been received on the next succeeding
Business Day. The Agent may (but shall not be obligated
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to) debit the amount of any such payment which is not made by such time to any
ordinary deposit account of the Borrower maintained with the Agent (with notice
to the Borrower). The Borrower shall, at the time it makes any payment under
this Credit Agreement, specify to the Agent the Loans, LOC Obligations, Fees,
interest or other amounts payable by the Borrower hereunder to which such
payment is to be applied (and in the event that it fails so to specify, or if
such application would be inconsistent with the terms hereof, the Agent shall
distribute such payment to the Lenders in such manner as the Agent may determine
to be appropriate in respect of obligations owing by the Borrower hereunder,
subject to the terms of Section 3.12(a)). The Agent will distribute such
payments to such Lenders, if such payment is received prior to 2:00 P.M.
(Dallas, Texas time) on a Business Day in like funds as received prior to the
end of such Business Day and otherwise the Agent will distribute such payment to
such Lenders on the next succeeding Business Day. Whenever any payment hereunder
shall be stated to be due on a day which is not a Business Day, the due date
thereof shall be extended to the next succeeding Business Day (subject to
accrual of interest and Fees for the period of such extension), except that in
the case of Eurocurrency Loans, if the extension would cause the payment to be
made in the next following calendar month, then such payment shall instead be
made on the next preceding Business Day. Except as expressly provided otherwise
herein, all computations of interest and fees shall be made on the basis of
actual number of days elapsed over a year of 360 days, except with respect to
computation of interest on Base Rate Loans which (unless the Base Rate is
determined by reference to the Federal Funds Rate) shall be calculated based on
a year of 365 or 366 days, as appropriate. Interest shall accrue from and
include the date of borrowing, but exclude the date of payment.
(c) Allocation of Payments After Event of Default. Notwithstanding
any other provisions of this Credit Agreement to the contrary, after the
occurrence and during the continuance of an Event of Default, all amounts
collected or received by the Agent or any Lender on account of the Revolving
Obligations or any other amounts outstanding under any of the Credit Documents
shall be paid over or delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket costs and
expenses (including without limitation reasonable attorneys' fees
actually incurred) of the Agent in connection with enforcing the rights
of the Lenders under the Credit Documents;
SECOND, to payment of any fees owed to the Agent;
THIRD, to the payment of all reasonable out-of-pocket costs and
expenses (including without limitation, reasonable attorneys' fees
actually incurred) of each of the Lenders in connection with enforcing
its rights under the Credit Documents or otherwise with respect to the
Revolving Obligations owing to such Lender;
FOURTH, to the payment of all accrued interest and fees on or in
respect of the Revolving Obligations;
FIFTH, to the payment of the outstanding principal amount of the
Revolving Obligations (including the payment or cash collateralization
of the outstanding LOC Obligations);
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SIXTH, to all other Revolving Obligations and other obligations
which shall have become due and payable under the Credit Documents or
otherwise and not repaid pursuant to clauses "FIRST" through "FIFTH"
above; and
SEVENTH, to the payment of the surplus, if any, to whoever may be
lawfully entitled to receive such surplus.
In carrying out the foregoing, (i) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category; and (ii) each of the Lenders shall receive an amount equal
to its pro rata share (based on the proportion that the then outstanding
Revolving Obligations held by such Lender bears to the aggregate then
outstanding Revolving Obligations) of amounts available to be applied pursuant
to clauses "THIRD", "FOURTH", "FIFTH" and "SIXTH" above; and (iii) to the extent
that any amounts available for distribution pursuant to clause "FIFTH" above are
attributable to the issued but undrawn amount of outstanding Letters of Credit,
such amounts shall be held by the Agent in a cash collateral account and applied
(A) first, to reimburse the Issuing Lender for any drawings under such Letters
of Credit and (B) then, following the expiration or earlier cancellation of all
Letters of Credit, to all other obligations of the types described in clauses
"FIFTH" and "SIXTH" above in the manner provided in this Section 3.14(c).
3.15 EVIDENCE OF DEBT.
(a) Each Lender shall maintain an account or accounts evidencing each
Loan made by such Lender to the Borrower from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time under this Credit Agreement. Each Lender will make reasonable efforts to
maintain the accuracy of its account or accounts and to promptly update its
account or accounts from time to time, as necessary.
(b) The Agent shall maintain the Register pursuant to Section 11.3(c)
hereof, and a subaccount for each Lender, in which Register and subaccounts
(taken together) shall be recorded (i) the amount, type and Interest Period of
each such Loan hereunder, (ii) the amount of any principal or interest due and
payable or to become due and payable to each Lender hereunder and (iii) the
amount of any sum received by the Agent hereunder from or for the account of the
Borrower and each Lender's share thereof. The Agent will make reasonable efforts
to maintain the accuracy of the subaccounts referred to in the preceding
sentence and to promptly update such subaccounts from time to time, as
necessary.
(c) The entries made in the accounts, Register and subaccounts
maintained pursuant to subsection (b) of this Section 3.15 (and, if consistent
with the entries of the Agent, subsection (a)) shall be prima facie evidence of
the existence and amounts of the obligations of the Borrower therein recorded;
provided, however, that the failure of any Lender or the Agent to maintain any
such account, such Register or such subaccount, as applicable, or any error
therein, shall not in any manner affect the obligation of the Borrower to repay
the Loans made by such Lender in accordance with the terms hereof.
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SECTION 4
GUARANTY
4.1 THE GUARANTEE.
Each of the Guarantors hereby jointly and severally guarantees to each
Lender, to each Affiliate of a Lender that enters into a Hedging Agreement and
to the Agent as hereinafter provided the prompt payment of the Guaranteed
Obligations in full when due (whether at stated maturity, as a mandatory
prepayment, by acceleration, a mandatory cash collateralization or otherwise)
strictly in accordance with the terms thereof. The Guarantors hereby further
agree that if any of the Guaranteed Obligations are not paid in full when due
(whether at stated maturity, as a mandatory prepayment, by acceleration, as
mandatory cash collateralization or otherwise), the Guarantors will, jointly and
severally, promptly pay the same, without any demand or notice whatsoever, and
that in the case of any extension of time of payment or renewal of any of the
Guaranteed Obligations, the same will be promptly paid in full when due (whether
at extended maturity, as a mandatory prepayment, by acceleration or otherwise)
in accordance with the terms of such extension or renewal.
Notwithstanding any provision to the contrary contained herein or in any
other of the Credit Documents or Hedging Agreements, to the extent the
obligations of a Guarantor shall be adjudicated to be invalid or unenforceable
for any reason (including, without limitation, because of any applicable state
or federal law relating to fraudulent conveyances or transfers) then the
obligations of each Guarantor hereunder shall be limited to the maximum amount
that is permissible under applicable law (whether federal or state and
including, without limitation, the Bankruptcy Code).
4.2 OBLIGATIONS UNCONDITIONAL.
The obligations of the Guarantors under Section 4.1 hereof are joint and
several, absolute and unconditional, irrespective of the value, genuineness,
validity, regularity or enforceability of any of the Credit Documents or Hedging
Agreements, or any other agreement or instrument referred to therein, or any
substitution, release or exchange of any other guarantee of or security for any
of the Guaranteed Obligations, and, to the fullest extent permitted by
applicable law, irrespective of any other circumstance whatsoever which might
otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor, it being the intent of this Section 4.2 that the obligations of the
Guarantors hereunder shall be absolute and unconditional under any and all
circumstances. Each Guarantor agrees that such Guarantor shall have no right of
subrogation, indemnity, reimbursement or contribution against the Borrower or
any other Guarantor of the Guaranteed Obligations for amounts paid under this
Guaranty until such time as the Lenders (and any Affiliates of Lenders entering
into Hedging Agreements) have been paid in full, all Commitments under the
Credit Agreement have been terminated and no Person or Governmental Authority
shall have any right to request any return or reimbursement of funds from the
Lenders in connection with monies received under the Credit Documents or Hedging
Agreements. Without limiting the generality of the foregoing, it is agreed that,
to the fullest extent permitted by law, the occurrence of any one or more of the
following shall not alter
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or impair the liability of any Guarantor hereunder which shall remain absolute
and unconditional as described above:
(i) at any time or from time to time, without notice to any
Guarantor, the time for any performance of or compliance with any of the
Guaranteed Obligations shall be extended, or such performance or
compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of any
of the Credit Documents, any Hedging Agreement or any other agreement or
instrument referred to in the Credit Documents or Hedging Agreements
shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right under any of the
Credit Documents, any Hedging Agreement or any other agreement or
instrument referred to in the Credit Documents or Hedging Agreements
shall be waived or any other guarantee of any of the Guaranteed
Obligations or any security therefor shall be released or exchanged in
whole or in part or otherwise dealt with;
(iv) any Lien granted to, or in favor of, the Agent or any
Lender or Lenders as security for any of the Guaranteed Obligations
shall fail to attach or be perfected; or
(v) any of the Guaranteed Obligations shall be determined to be
void or voidable (including, without limitation, for the benefit of any
creditor of any Guarantor) or shall be subordinated to the claims of any
Person (including, without limitation, any creditor of any Guarantor).
With respect to its obligations hereunder, each Guarantor hereby expressly
waives diligence, presentment, demand of payment, protest and all notices
whatsoever, and any requirement that the Agent or any Lender exhaust any right,
power or remedy or proceed against any Person under any of the Credit Documents,
any Hedging Agreement or any other agreement or instrument referred to in the
Credit Documents or Hedging Agreements, or against any other Person under any
other guarantee of, or security for, any of the Guaranteed Obligations.
4.3 REINSTATEMENT.
The obligations of the Guarantors under this Section 4 shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of any Person in respect of the Guaranteed Obligations is rescinded
or must be otherwise restored by any holder of any of the Guaranteed
Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and each Guarantor agrees that it will indemnify
the Agent and each Lender on demand for all reasonable costs and expenses
(including, without limitation, reasonable fees and expenses of counsel)
incurred by the Agent or such Lender in connection with such rescission or
restoration, including any such costs and expenses incurred in defending against
any claim alleging that such payment constituted a preference, fraudulent
transfer or similar payment under any bankruptcy, insolvency or similar law.
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4.4 REMEDIES.
The Guarantors agree that, to the fullest extent permitted by law, as
between the Guarantors, on the one hand, and the Agent and the Lenders, on the
other hand, the Guaranteed Obligations may be declared to be forthwith due and
payable as provided in Section 9.2 hereof (and shall be deemed to have become
automatically due and payable in the circumstances provided in said Section 9.2)
for purposes of Section 4.1 hereof notwithstanding any stay, injunction or other
prohibition preventing such declaration (or preventing the Guaranteed
Obligations from becoming automatically due and payable) as against any other
Person and that, in the event of such declaration (or the Guaranteed Obligations
being deemed to have become automatically due and payable), the Guaranteed
Obligations (whether or not due and payable by any other Person) shall forthwith
become due and payable by the Guarantors for purposes of said Section 4.1.
4.5 RIGHTS OF CONTRIBUTION.
The Guarantors hereby agree, as among themselves, that if any Guarantor
shall become an Excess Funding Guarantor (as defined below), each other
Guarantor shall, on demand of such Excess Funding Guarantor (but subject to the
succeeding provisions of this Section 4.5), pay to such Excess Funding Guarantor
an amount equal to such Guarantor's Pro Rata Share (as defined below and
determined, for this purpose, without reference to the properties, assets,
liabilities and debts of such Excess Funding Guarantor) of such Excess Payment
(as defined below). The payment obligation of any Guarantor to any Excess
Funding Guarantor under this Section 4.5 shall be subordinate and subject in
right of payment to the prior payment in full of the obligations of such
Guarantor under the other provisions of this Section 4, and such Excess Funding
Guarantor shall not exercise any right or remedy with respect to such excess
until payment and satisfaction in full of all of such obligations. For purposes
hereof, (i) "Excess Funding Guarantor" shall mean, in respect of any obligations
arising under the other provisions of this Section 4 (hereafter, the "Guarantied
Obligations"), a Guarantor that has paid an amount in excess of its Pro Rata
Share of the Guarantied Obligations; (ii) "Excess Payment" shall mean, in
respect of any Guarantied Obligations, the amount paid by an Excess Funding
Guarantor in excess of its Pro Rata Share of such Guarantied Obligations; and
(iii) "Pro Rata Share", for the purposes of this Section 4.5, shall mean, for
any Guarantor, the ratio (expressed as a percentage) of (a) the amount by which
the aggregate present fair saleable value of all of its assets and properties
exceeds the amount of all debts and liabilities of such Guarantor (including
contingent, subordinated, unmatured, and unliquidated liabilities, but excluding
the obligations of such Guarantor hereunder) to (b) the amount by which the
aggregate present fair saleable value of all assets and other properties of the
Borrower and all of the Guarantors exceeds the amount of all of the debts and
liabilities (including contingent, subordinated, unmatured, and unliquidated
liabilities, but excluding the obligations of the Borrower and the Guarantors
hereunder) of the Borrower and all of the Guarantors, all as of the Closing Date
(if any Guarantor becomes a party hereto subsequent to the Closing Date, then
for the purposes of this Section 4.5 such subsequent Guarantor shall be deemed
to have been a Guarantor as of the Closing Date and the information pertaining
to, and only pertaining to, such Guarantor as of the date such Guarantor became
a Guarantor shall be deemed true as of the Closing Date).
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4.6 CONTINUING GUARANTEE.
The guarantee in this Section 4 is a continuing guarantee, and shall
apply to all Guaranteed Obligations whenever arising. Each Guarantor further
agrees that such Guarantor shall have no right of recourse to security for the
Guaranteed Obligations, except through the exercise of the rights of subrogation
pursuant to Section 4.2 and through the exercise of rights of contribution
pursuant to Section 4.5.
SECTION 5
CONDITIONS
5.1 CONDITIONS TO CLOSING.
This Credit Agreement shall become effective, and the initial Extensions
of Credit may be made, upon the satisfaction of the following conditions
precedent (in form and substance acceptable to the Agent):
(a) Execution of Credit Agreement and Credit Documents. Receipt by the
Agent of (i) multiple counterparts of this Credit Agreement, (ii) a Revolving
Note for each Lender, (iii) the Swingline Note for the Swingline Lender, (iv)
multiple counterparts of each of the Pledge Agreements and UCC financing
statements relating thereto, if any, executed by a duly authorized officer of
each party thereto and in each case conforming to the requirements of this
Credit Agreement.
(b) Financial Information. Receipt by the Agent of the consolidated
financial statements of the Borrower and its Subsidiaries, including balance
sheets and income and cash flow statements for the fiscal years ending 1996 and
1997, in each case audited by nationally recognized independent public
accountants and containing an unqualified opinion of such firm that such
statements present fairly the consolidated financial position of the Borrower
and its Subsidiaries and are prepared in conformity with GAAP and such other
information relating to the Borrower and its Subsidiaries as the Agent may
reasonably require in connection with the structuring and syndication of credit
facilities of the type described herein.
(c) Absence of Legal Proceedings. There shall not exist any pending or
threatened action, suit, investigation or proceeding which if adversely
determined against the Borrower or any of its Subsidiaries would have or would
reasonably be expected to have a Material Adverse Effect.
(d) Legal Opinions. Receipt of opinions of counsel for the Credit
Parties relating to the Credit Documents and the transactions contemplated
herein, in form and substance satisfactory to the Agent and the Lenders.
(e) Corporate Documents. Receipt of the following for each of the Credit
Parties:
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(i) Articles of Incorporation. Copies of the articles of
incorporation or charter documents certified to be true and complete as
of a recent date by the appropriate governmental authority of the state
of its incorporation.
(ii) Resolutions. Copies of resolutions of the Board of Directors
approving and adopting the respective Credit Documents, the transactions
contemplated therein and authorizing execution and delivery thereof,
certified by a secretary or assistant secretary as of the Closing Date
to be true and correct and in force and effect as of such date.
(iii) Bylaws. Copies of the bylaws certified by a secretary or
assistant secretary as of the Closing Date to be true and correct and in
force and effect as of such date.
(iv) Good Standing. Copies, where applicable, of certificates of
good standing, existence or its equivalent certified as of a recent date
by the appropriate governmental authorities of the state of
incorporation and each other state in which the failure to so qualify
and be in good standing would have a material adverse effect on the
business or operations in such state.
(v) Incumbency. An incumbency certificate of each Credit Party
certified by a secretary or assistant secretary to be true and correct
as of the Closing Date.
(f) Personal Property Collateral. Receipt of the following in form and
substance satisfactory to the Agent:
(i) duly executed UCC financing statements for each appropriate
jurisdiction as is necessary, in the Agent's sole discretion, to perfect
the Collateral Agent's security interest, for the behalf of the Lenders
(and affiliates of Lenders as to certain obligations under Hedging
Agreements) and the Noteholders, in the Collateral;
(ii) all original stock certificates, if any, evidencing the
capital stock pledged to the Collateral Agent pursuant to the Pledge
Agreements, together with original undated stock powers executed in
blank (unless any such stock powers are deemed unnecessary by the
Collateral Agent in its reasonable discretion under the law of the
jurisdiction of organization of any Foreign Subsidiary);
(iii) all duly executed consents as are necessary, in the Agent's
sole discretion, to perfect the Collateral Agent's security interest in
the Collateral.
(g) Note Purchase Agreement. The Agent shall have received (i) a copy,
certified by an officer of the Borrower as true and complete, of the Note
Purchase Agreement as originally executed and delivered, together with any
amendments or modifications to such Note Purchase Agreement as of the Closing
Date and (ii) the Intercreditor Agreement.
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(h) Material Adverse Effect. There shall not have occurred a change
since May 31, 1997 that has had or could reasonably be expected to have a
Material Adverse Effect (including matters related to litigation, tax,
accounting, labor, insurance and pension liabilities).
(i) Officer's Certificate. The Agent shall have received a certificate
or certificates executed by the chief financial officer of the Borrower as of
the Closing Date stating that (A) the Borrower and each of the Borrower's
Subsidiaries are in compliance with all existing financial obligations, (B) all
governmental, shareholder and third party consents and approvals, if any, with
respect to the Credit Documents and the transactions contemplated thereby have
been obtained, (C) no action, suit, investigation or proceeding is pending or
threatened in any court or before any arbitrator or governmental instrumentality
that purports to effect the Borrower, any of the Borrower's Subsidiaries or any
transaction contemplated by the Credit Documents, if such action, suit,
investigation or proceeding might be reasonably expected to have a Material
Adverse Effect and (D) immediately after giving effect to this Credit Agreement,
the other Credit Documents and all the transactions contemplated herein or
therein to occur on such date, (1) the Borrower and each of the Borrower's
Material Subsidiaries is Solvent, (2) no Default or Event of Default exists, (3)
all representations and warranties contained herein and in the other Credit
Documents are true and correct in all material respects, and (4) the Credit
Parties are in compliance with each of the financial covenants set forth in
Section 7.9.
(j) Payment of B of A Credit Facility. Receipt by the Agent of evidence
that (i) the B of A Credit Facility shall have been terminated and (ii) all
obligations outstanding under the B of A Credit Facility have been paid in full.
(k) Fees. Receipt of all fees and expenses owed to the Lenders and the
Agent, including, without limitation, any fees set forth in the Agent's Fee
Letter.
(l) First Priority Lien. Receipt by the Agent of evidence satisfactory
in form and substance to the Agent, that the Collateral Agent, on behalf of the
Lenders (and affiliates of Lenders as to certain obligations under Hedging
Agreements) and the Noteholders, holds a perfected, first priority lien, subject
to no other Liens in the Collateral.
(m) Additional Matters. All other documents and legal matters in
connection with the transactions contemplated by this Credit Agreement shall be
reasonably satisfactory in form and substance to the Agent and the Required
Lenders.
5.2 CONDITIONS TO ALL EXTENSIONS OF CREDIT.
The obligation of each Lender to make any Extension of Credit hereunder
(including the initial Extension of Credit to be made hereunder) is subject to
the satisfaction of the following conditions precedent on the date of making
such Extension of Credit:
(a) Payment of B of A Credit Facility. Receipt by the Agent of evidence
that (i) the B of A Credit Facility shall have been terminated and (ii) all
obligations outstanding under B of A Credit Facility have been paid in full.
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(b) Notice. The Borrower shall have delivered (i) in the case of any new
Revolving Loan or Foreign Currency Loan, a Notice of Borrowing, duly executed
and completed in accordance with the terms hereof and (ii) in the case of any
extension or conversion of a Loan, a duly executed and completed Notice of
Extension/Conversion by the time specified in Section 3.2.
(c) Representations and Warranties. The representations and warranties
made by the Borrower herein or in any other Credit Documents or which are
contained in any certificate furnished at any time under or in connection
herewith shall be true and correct in all material respects on and as of the
date of such Extension of Credit as if made on and as of such date (except for
those which expressly relate to an earlier date).
(d) No Default or Event of Default. No Default or Event of Default shall
have occurred and be continuing on such date or after giving effect to the
Extension of Credit to be made on such date unless such Default or Event of
Default shall have been waived in accordance with this Credit Agreement.
(e) No Material Adverse Effect. No circumstances, events or conditions
shall have occurred since May 31, 1997 which would have a Material Adverse
Effect.
Each request for Extension of Credit (including extensions and
conversions) and each acceptance by the Borrower of an Extension of Credit
(including extensions and conversions) shall be deemed to constitute a
representation and warranty by the Borrower as of the date of such Extension of
Credit that the applicable conditions in paragraphs (b), (c) and (d) of this
subsection have been satisfied.
SECTION 6
REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Credit Agreement and to make
Extensions of Credit herein provided for, each Credit Party hereby represents
and warrants to the Agent and to each Lender that:
6.1 FINANCIAL CONDITION.
The financial statements delivered to the Agent pursuant to Section
5.1(b) have been prepared in accordance with GAAP consistently applied
throughout the periods covered thereby, are complete and correct in all material
respects and present fairly the financial condition and results from operations
of the entities and for the periods specified.
6.2 NO CHANGES OR RESTRICTED PAYMENTS.
Since the date of the audited financial statements referenced in Section
6.1, (a) there has been no circumstance, development or event relating to or
affecting the Borrower or any of its
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Subsidiaries which has had or would be reasonably expected to have a Material
Adverse Effect, and (b) except as permitted herein, no Restricted Payments have
been made or declared or are contemplated by the Borrower or any of its
Subsidiaries.
6.3 ORGANIZATION; EXISTENCE; COMPLIANCE WITH LAW.
The Borrower and each of its Subsidiaries (a) is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) has the corporate or other necessary power
and authority, and the legal right to own and operate its property, to lease the
property it operates as lessee and to conduct the business in which it is
currently engaged, (c) is duly qualified as a foreign entity and in good
standing under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such
qualification, other than in such jurisdictions where the failure to be so
qualified and in good standing would not, in the aggregate, have a Material
Adverse Effect, and (d) is in compliance with all Requirements of Law, except to
the extent that the failure to comply therewith would not, in the aggregate, be
reasonably expected to have a Material Adverse Effect.
6.4 POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS.
Each Credit Party has the corporate or other necessary power and
authority, and the legal right, to make, deliver and perform the Credit
Documents to which it is a party and has taken all necessary corporate action to
authorize the execution, delivery and performance by it of the Credit Documents
to which it is a party. No consent or authorization of, filing with, notice to
or other act by or in respect of, any Governmental Authority or any other Person
is required in connection with the borrowings hereunder or with the execution,
delivery or performance of any Credit Documents by any Credit Party (other than
those which have been obtained) or with the validity or enforceability of any
Credit Document against such Credit Party (except such filings as are necessary
in connection with the perfection of the Liens created by such Credit
Documents). Each Credit Document to which it is a party constitutes a legal,
valid and binding obligation of each Credit Party enforceable against such
Credit Party in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and by
general equitable principles (whether enforcement is sought by proceedings in
equity or at law).
6.5 NO LEGAL BAR.
The execution, delivery and performance of the Credit Documents, the
borrowings hereunder and the use of the Extensions of Credit will not violate
any Requirement of Law or any Contractual Obligation of any Credit Party or any
of its Subsidiaries. None of the Credit Parties nor any of its Subsidiaries is
in default under or with respect to any of its Contractual Obligations in any
respect which would reasonably be expected to have a Material Adverse Effect.
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6.6 NO MATERIAL LITIGATION.
No claim, litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the best knowledge of the
Credit Parties, threatened by or against the Borrower or any of its Subsidiaries
or against any of their respective properties or revenues which (a) relate to
the Credit Documents or any of the transactions contemplated hereby or thereby,
or (b) if adversely determined, would reasonably be expected to have a Material
Adverse Effect.
6.7 NO DEFAULT.
No Default or Event of Default has occurred and is continuing.
6.8 OWNERSHIP OF PROPERTY; LIENS.
The Borrower and each of its Subsidiaries has good record and marketable
title in fee simple to, or a valid leasehold interest in, all its material real
property, and good title to, or a valid leasehold interest in, all its other
material property, and none of such property is subject to any Lien, except for
Permitted Liens.
6.9 INTELLECTUAL PROPERTY.
The Borrower and each of its Subsidiaries owns, or has the legal right
to use, all United States trademarks, tradenames, copyrights, technology,
know-how and processes, if any, necessary for each of them to conduct its
business as currently conducted (the "Intellectual Property") except for those
the failure to own or have such legal right to use would not be reasonably
expected to have a Material Adverse Effect. No claim has been asserted and is
pending by any Person challenging or questioning the use of any such
Intellectual Property or the validity or effectiveness of any such Intellectual
Property, nor does any Credit Party know of any such claim, and the use of such
Intellectual Property by the Borrower or any of its Subsidiaries does not
infringe on the rights of any Person, except for such claims and infringements
that in the aggregate, would not be reasonably expected to have a Material
Adverse Effect.
6.10 NO BURDENSOME RESTRICTIONS.
No Requirement of Law or Contractual Obligation of the Borrower or any
of its Subsidiaries would be reasonably expected to have a Material Adverse
Effect.
6.11 TAXES.
The Borrower and each of its Subsidiaries (a) has filed or caused to be
filed all United States federal income tax returns and all other material tax
returns required to be filed and (b) has paid (i) all taxes shown to be due and
payable on said returns, (ii) all taxes shown to be due and payable on any
assessments of which it has received notice made against it or any of its
property and (c) all other taxes, fees or other charges imposed on it or any of
its property by any Governmental Authority (other than
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any (x) taxes, fees or other charges with respect to which the failure to pay,
in the aggregate, would not have a Material Adverse Effect or (y) taxes, fees or
other charges the amount or validity of which are currently being contested and
with respect to which reserves in conformity with GAAP have been provided on the
books of such Person), and no tax Lien has been filed, and, to the best
knowledge of the Credit Parties, no claim is being asserted, with respect to any
such tax, fee or other charge.
6.12 ERISA
Except as would not reasonably be expected to have a Material Adverse
Effect:
(a) During the five-year period prior to the date on which this
representation is made or deemed made: (i) no ERISA Event has occurred, and, to
the best knowledge of the Credit Parties, no event or condition has occurred or
exists as a result of which any ERISA Event could reasonably be expected to
occur, with respect to any Plan; (ii) no "accumulated funding deficiency," as
such term is defined in Section 302 of ERISA and Section 412 of the Code,
whether or not waived, has occurred with respect to any Plan; (iii) each Plan
has been maintained, operated, and funded in compliance with its own terms and
in material compliance with the provisions of ERISA, the Code, and any other
applicable federal or state laws; and (iv) no lien in favor of the PBGC or a
Plan has arisen or is reasonably likely to arise on account of any Plan.
(b) The actuarial present value of all "benefit liabilities" (as defined
in Section 4001(a)(16) of ERISA), whether or not vested, under each Single
Employer Plan, as of the last annual valuation date prior to the date on which
this representation is made or deemed made (determined, in each case, in
accordance with Financial Accounting Standards Board Statement 87, utilizing the
actuarial assumptions used in such Plan's most recent actuarial valuation
report), did not exceed as of such valuation date the fair market value of the
assets of such Plan.
(c) Neither the Borrower, nor any of its Subsidiaries nor any ERISA
Affiliate has incurred, or, to the best knowledge of the Credit Parties, could
be reasonably expected to incur, any withdrawal liability under ERISA to any
Multiemployer Plan or Multiple Employer Plan. Neither the Borrower, nor any of
its Subsidiaries nor any ERISA Affiliate would become subject to any withdrawal
liability under ERISA if the Borrower, any of its Subsidiaries or any ERISA
Affiliate were to withdraw completely from all Multiemployer Plans and Multiple
Employer Plans as of the valuation date most closely preceding the date on which
this representation is made or deemed made. Neither the Borrower, nor any of its
Subsidiaries nor any ERISA Affiliate has received any notification that any
Multiemployer Plan is in reorganization (within the meaning of Section 4241 of
ERISA), is insolvent (within the meaning of Section 4245 of ERISA), or has been
terminated (within the meaning of Title IV of ERISA), and no Multiemployer Plan
is, to the best knowledge of the Credit Parties, reasonably expected to be in
reorganization, insolvent, or terminated.
(d) No prohibited transaction (within the meaning of Section 406 of
ERISA or Section 4975 of the Code) or breach of fiduciary responsibility has
occurred with respect to a Plan which has subjected or may subject the Borrower,
any of its Subsidiaries or any ERISA Affiliate to any liability under Sections
406, 409, 502(i), or 502(l) of ERISA or Section 4975 of the Code, or under any
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agreement or other instrument pursuant to which the Borrower, any of its
Subsidiaries or any ERISA Affiliate has agreed or is required to indemnify any
person against any such liability.
(e) Neither the Borrower, nor any of its Subsidiaries, nor any ERISA
Affiliates has any material liability with respect to "expected post-retirement
benefit obligations" within the meaning of the Financial Accounting Standards
Board Statement 106. Each Plan which is a welfare plan (as defined in Section
3(1) of ERISA) to which Sections 601-609 of ERISA and Section 4980B of the Code
apply has been administered in compliance in all material respects of such
sections.
6.13 GOVERNMENTAL REGULATIONS, ETC.
(a) No part of the proceeds of the Loans will be used, directly or
indirectly, for the purpose of purchasing or carrying any "margin stock" within
the meaning of Regulation G or Regulation U, or for the purpose of purchasing or
carrying or trading in any securities. If requested by any Lender or the Agent,
the Borrower will furnish to the Agent and each Lender a statement to the
foregoing effect in conformity with the requirements of FR Form U-1 referred to
in said Regulation U. No indebtedness being reduced or retired out of the
proceeds of the Loans was or will be incurred for the purpose of purchasing or
carrying any margin stock within the meaning of Regulation U or any "margin
security" within the meaning of Regulation T. None of the transactions
contemplated by this Credit Agreement (including, without limitation, the direct
or indirect use of the proceeds of the Loans) will violate or result in a
violation of the Securities Act of 1933, as amended, or the Securities Exchange
Act of 1934, as amended, or regulations issued pursuant thereto, or Regulation
G, T, U or X.
(b) Neither the Borrower, nor any of its Subsidiaries, is subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act or the Investment Company Act of 1940, each as amended. In addition,
neither the Borrower, nor any of its Subsidiaries, is (i) an "investment
company" registered or required to be registered under the Investment Company
Act of 1940, as amended, and is not controlled by such a company, or (ii) a
"holding company", or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary" of a "holding company",
within the meaning of the Public Utility Holding Company Act of 1935, as
amended.
(c) The Borrower and each of its Subsidiaries has obtained all material
licenses, permits, franchises or other governmental authorizations necessary to
the ownership of its respective Property and to the conduct of its business.
(d) Neither the Borrower, nor any of its Subsidiaries is in violation of
any applicable statute, regulation or ordinance of the United States of America,
or of any state, city, town, municipality, county or any other jurisdiction, or
of any agency thereof (including without limitation, environmental laws and
regulations), which violation could reasonably be expected to have a Material
Adverse Effect.
(e) The Borrower and each of its Subsidiaries is current with all
material reports and documents, if any, required to be filed with any state or
federal securities commission or similar agency
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and is in full compliance in all material respects with all applicable rules and
regulations of such commissions.
6.14 PURPOSE OF EXTENSIONS OF CREDIT.
The Loans will be used solely (a) to make Permitted Acquisitions, (b) to
make Capital Expenditures permitted hereunder and (c) to provide working capital
and for general corporate purposes. The Letters of Credit shall be used only for
the purposes set forth in Section 2.2(a).
6.15 ENVIRONMENTAL MATTERS.
Except as would not reasonably be expected to have a Material Adverse
Effect:
(a) Each of the facilities and properties owned, leased or operated by
the Borrower or any of its Subsidiaries (the "Properties") and all operations at
the Properties are in compliance with all applicable Environmental Laws, and
there is no violation of any Environmental Law with respect to the Properties or
the businesses operated by the Borrower or any of its Subsidiaries (the
"Businesses"), and there are no conditions relating to the Businesses or
Properties that could give rise to liability under any applicable Environmental
Laws.
(b) None of the Properties contains, or has previously contained, any
Materials of Environmental Concern at, on or under the Properties in amounts or
concentrations that constitute or constituted a violation of, or could give rise
to liability under, Environmental Laws.
(c) Neither the Borrower nor any of its Subsidiaries has received any
written or verbal notice of, or inquiry from any Governmental Authority
regarding, any violation, alleged violation, non-compliance, liability or
potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Properties or the Businesses, nor
does the Borrower or any of its Subsidiaries have knowledge or reason to believe
that any such notice will be received or is being threatened.
(d) Materials of Environmental Concern have not been transported or
disposed of from the Properties, or generated, treated, stored or disposed of
at, on or under any of the Properties or any other location, in each case by or
on behalf of the Borrower or any of its Subsidiaries in violation of, or in a
manner that would be reasonably likely to give rise to liability under, any
applicable Environmental Law.
(e) No judicial proceeding or governmental or administrative action is
pending or, to the best knowledge of the Credit Parties, threatened, under any
Environmental Law to which the Borrower or any of its Subsidiaries is or will be
named as a party, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other administrative or
judicial requirements outstanding under any Environmental Law with respect to
the Borrower or any of its Subsidiaries, the Properties or the Businesses.
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(f) There has been no release or, threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or related to
the operations (including, without limitation, disposal) of the Borrower or any
of its Subsidiaries in connection with the Properties or otherwise in connection
with the Businesses, in violation of or in amounts or in a manner that could
give rise to liability under Environmental Laws.
6.16 FIRST PRIORITY LIEN.
The Collateral Agent on behalf of the Lenders (and affiliates of Lenders
as to certain obligations under Hedging Agreements) and the Noteholders, holds a
first priority lien, subject to no other Liens in the Collateral.
6.17 SUBSIDIARIES.
Set forth on Schedule 6.17 is a complete and accurate list of (a) all
Subsidiaries of each Credit Party and (b) all Material Subsidiaries of each
Credit Party. Information on Schedule 6.17 includes (c) for each Subsidiary, the
jurisdiction of incorporation and the percentage of outstanding shares owned
(directly or indirectly) by such Credit Party, and (d) for each Material
Subsidiary, the number of shares of each class of capital stock outstanding, the
number and percentage of outstanding shares of each class owned (directly or
indirectly) by such Credit Party; and the number of effect, if exercised, of all
outstanding options, warrants, rights of conversion or purchase and all other
similar rights with respect thereto. The outstanding capital stock of all
Subsidiaries of each Credit Party is validly issued, fully paid and
non-assessable and is owned by each such Credit Party, directly or indirectly,
free and clear of all Liens (other than those arising under or contemplated in
connection with the Credit Documents). Schedule 6.17 may be updated from time to
time by the Borrower by giving written notice thereof to the Agent.
6.18 CHIEF EXECUTIVE OFFICE.
Set forth on Schedule 6.18 is the chief executive office and principal
place of business of each Credit Party.
6.19 INDEBTEDNESS UNDER NOTE PURCHASE AGREEMENT.
The Revolving Obligations and all other Indebtedness under the Credit
Agreement is pari passu with the Indebtedness arising under the Note Purchase
Agreement.
SECTION 7
AFFIRMATIVE COVENANTS
Each Credit Party covenants and agrees that on the Closing Date, and so
long as this Credit Agreement is in effect and until the Commitments have been
terminated, no Revolving Obligations remain outstanding and all amounts owing
hereunder or in connection herewith have been paid in full, the Borrower and
each of its Subsidiaries shall:
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7.1 FINANCIAL STATEMENTS.
Furnish, or cause to be furnished, to each of the Lenders:
(a) Audited Financial Statements. As soon as available, but in any event
within 90 days after the end of each fiscal year, an audited consolidated
balance sheet of the Borrower and its Subsidiaries as of the end of the fiscal
year and the related consolidated statements of income, retained earnings,
shareholders' equity and cash flows for the year, audited by independent
certified public accountants of nationally recognized standing reasonably
acceptable to the Required Lenders, setting forth in each case in comparative
form the figures for the previous year, reported without a "going concern" or
like qualification or exception, or qualification indicating that the scope of
the audit was inadequate to permit such independent certified public accountants
to certify such financial statements without such qualification, together with a
schedule setting forth the unaudited consolidating balance sheet and the related
consolidating statements of income for the Borrower and its Subsidiaries (and,
if available, a schedule setting forth the related consolidating retained
earnings, shareholders equity and cash flows for the Borrower and its
Subsidiaries), in a format and with detail sufficient to calculate the
applicable financial covenants.
(b) Company-Prepared Financial Statements. As soon as available, but
in any event
(i) within 45 days after the end of each fiscal quarter, a
company-prepared consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such quarter and related company-prepared
consolidated statements of income, retained earnings, shareholders'
equity and cash flows for such period and for the fiscal year to date,
together with a schedule setting forth the company-prepared balance
sheet and related consolidating statements of income for the Borrower
and its Subsidiaries (and, if available, a company-prepared schedule
setting forth the related consolidating retained earnings, shareholders
equity and cash flows for the Borrower and its Subsidiaries) in a format
and with detail sufficient to calculate the applicable financial
covenants; and
(ii) within 45 days after the commencement of any fiscal year, an
annual business plan and budget for the Borrower and its Subsidiaries,
containing, among other things, pro forma financial statements for such
fiscal year,
in each case setting forth in comparative form the consolidated (and
consolidating, if applicable) figures for the corresponding period or periods of
the preceding fiscal year or the portion of the fiscal year ending with such
period, as applicable, in each case subject to normal recurring year-end audit
adjustments.
All such financial statements to be complete and correct in all material
respects (subject, in the case of interim statements, to normal recurring
year-end audit adjustments) and to be prepared in reasonable detail and, in the
case of the annual and quarterly financial statements provided in accordance
with subsections (a) and (b) above, in accordance with GAAP applied consistently
throughout the periods reflected therein) and further accompanied by a
description of, and an
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estimation of the effect on the financial statements on account of, a change in
the application of accounting principles as provided in Section 1.3.
7.2 CERTIFICATES; OTHER INFORMATION.
Furnish, or cause to be furnished, to the Agent for distribution to the
Lenders:
(a) Accountant's Certificate and Reports. Concurrently with the delivery
of the financial statements referred to in subsection 7.1(a) above, a
certificate of the independent certified public accountants reporting on such
financial statements stating that in making the examination necessary therefor
no knowledge was obtained of any Default or Event of Default, except as
specified in such certificate.
(b) Officer's Certificate. Concurrently with the delivery of the
financial statements referred to in Sections 7.1(a) and 7.1(b) above, a
certificate of a Responsible Officer stating that, to the best of such
Responsible Officer's knowledge and belief, (i) the financial statements fairly
present in all material respects the financial condition of the parties covered
by such financial statements, (ii) during such period the Borrower and its
Subsidiaries have observed or performed in all material respects the covenants
and other agreements hereunder and under the other Credit Documents relating to
them, and satisfied in all material respects the conditions, contained in this
Credit Agreement to be observed, performed or satisfied by them, (iii) such
Responsible Officer has obtained no knowledge of any Default or Event of Default
except as specified in such certificate and (iv) at the end of each fiscal
quarter of the Borrower only, such certificate shall include the calculations
required to indicate compliance with Section 7.9. A form of Officer's
Certificate is attached as Schedule 7.2(b).
(c) Accountants' Reports. Promptly upon receipt, a copy of any final (as
distinguished from a preliminary or discussion draft) "management letter" or
other similar report submitted by independent accountants or financial
consultants to the Borrower or any of its Material Subsidiaries in connection
with any annual, interim or special audit.
(d) Public Information. Within thirty days after the same are sent,
copies of all reports (other than those otherwise provided pursuant to
subsection 7.1) and other financial information which the Borrower or any of its
Subsidiaries sends to its public stockholders, and within thirty days after the
same are filed, copies of all financial statements and non-confidential reports
which the Borrower or any of its Subsidiaries may make to, or file with, the
Securities and Exchange Commission or any successor or analogous Governmental
Authority.
(e) Other Information. Promptly, such additional financial and other
information as the Agent, at the request of any Lender, may from time to time
reasonably request.
7.3 NOTICES.
Give notice to the Agent (which shall promptly transmit such notice to
each Lender) of:
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(a) Defaults. Immediately after any Credit Party knows or has reason to
know thereof, the occurrence of any Default or Event of Default.
(b) Contractual Obligations. Promptly, the initiation of any default or
event of default under any Contractual Obligation of the Borrower or any of its
Subsidiaries which would reasonably be expected to have a Material Adverse
Effect.
(c) Legal Proceedings. Promptly, any litigation, or any investigation or
proceeding (including without limitation, any environmental proceeding) known to
the Borrower or any of its Subsidiaries, or any material development in respect
thereof, affecting the Borrower or any of its Subsidiaries which, if adversely
determined, would reasonably be expected to have a Material Adverse Effect.
(d) ERISA. Promptly, after any Responsible Officer of any Credit Party
knows or has reason to know of (i) any event or condition, including, but not
limited to, any Reportable Event, that constitutes, or might reasonably lead to,
an ERISA Event; (ii) with respect to any Multiemployer Plan, the receipt of
notice as prescribed in ERISA or otherwise of any withdrawal liability assessed
against any of their ERISA Affiliates, or of a determination that any
Multiemployer Plan is in reorganization or insolvent (both within the meaning of
Title IV of ERISA); (iii) the failure to make full payment on or before the due
date (including extensions) thereof of all amounts which the Borrower or any of
its Subsidiaries or any ERISA Affiliate are required to contribute to each Plan
pursuant to its terms and as required to meet the minimum funding standard set
forth in ERISA and the Code with respect; or (iv) any change in the funding
status of any Plan that reasonably could be expected to have a Material Adverse
Effect; together with a description of any such event or condition or a copy of
any such notice and a statement by the chief financial officer of the Credit
Parties briefly setting forth the details regarding such event, condition, or
notice, and the action, if any, which has been or is being taken or is proposed
to be taken by the Credit Parties with respect thereto. Promptly upon request,
the Borrower or any of its Subsidiaries shall furnish the Agent and the Lenders
with such additional information concerning any Plan as may be reasonably
requested, including, but not limited to, copies of each annual report/return
(Form 5500 series), as well as all schedules and attachments thereto required to
be filed with the Department of Labor and/or the Internal Revenue Service
pursuant to ERISA and the Code, respectively, for each "plan year" (within the
meaning of Section 3(39) of ERISA).
(e) Other. Promptly, any other development or event which a Responsible
Officer determines could reasonably be expected to have a Material Adverse
Effect.
Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Credit Parties propose to take with respect thereto.
7.4 PAYMENT OF OBLIGATIONS.
Pay, discharge or otherwise satisfy at or before maturity or before they
become delinquent, as the case may be, in accordance with prudent business
practice (subject, where
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applicable, to specified grace periods) all material obligations of the Borrower
or any of its Subsidiaries of whatever nature (including without limitation all
taxes, assessments and governmental charges or levies) and any additional costs
that are imposed as a result of any failure to so pay, discharge or otherwise
satisfy such obligations, except when the amount or validity of such obligations
and costs is currently being contested in good faith by appropriate proceedings
and reserves, if applicable, in conformity with GAAP with respect thereto have
been provided on the books of the Borrower or any of its Subsidiaries, as the
case may be.
7.5 CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE.
Continue to engage in business of the same general type as now conducted
by it on the date hereof and preserve, renew and keep in full force and effect
its corporate existence and take all reasonable action to maintain all material
rights, privileges, licenses and franchises necessary or desirable in the normal
conduct of its business; comply with all Contractual Obligations and
Requirements of Law applicable to it except to the extent that failure to comply
therewith would not, in the aggregate, have a Material Adverse Effect.
7.6 MAINTENANCE OF PROPERTY; INSURANCE.
Keep all material property useful and necessary in its business in
reasonably good working order and condition (ordinary wear and tear excepted);
maintain with financially sound and reputable insurance companies casualty,
liability and such other insurance (which may include plans of self-insurance)
with such coverage and deductibles, and in such amounts as may be consistent
with prudent business practice and in any event consistent with normal industry
practice (except to any greater extent as may be required by the terms of any of
the other Credit Documents); and furnish to the Agent, upon written request,
full information as to the insurance carried.
7.7 INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS.
Keep proper books of records and accounts in which full, true and
correct entries in conformity with GAAP and all Requirements of Law shall be
made of all dealings and transactions in relation to its businesses and
activities; and permit, during regular business hours and upon reasonable notice
by the Agent or any Lender, as the case may be, the Agent or such Lender to
visit and inspect any of its properties and examine and make abstracts
(including photocopies) from any of its books and records (other than materials
protected by the attorney-client privilege and materials which the Credit
Parties may not disclose without violation of a confidentiality obligation
binding upon them) at any reasonable time, and to discuss the business,
operations, properties and financial and other condition of the Borrower and any
of its Subsidiaries with officers and employees of the Borrower and any of its
Subsidiaries and with their independent certified public accountants. The cost
of the inspection referred to in the preceding sentence shall be for the account
of the Lenders, unless an Event of Default has occurred and is continuing, in
which case the cost of such inspection shall be for the account of the Credit
Parties.
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7.8 ENVIRONMENTAL LAWS.
(a) Comply with, and take reasonable actions to ensure compliance by all
tenants and subtenants, if any, with, all applicable Environmental Laws and
obtain and comply with and maintain, and take reasonable actions to ensure that
all tenants and subtenants obtain and comply with and maintain, any and all
licenses, approvals, notifications, registrations or permits required by
applicable Environmental Laws except to the extent that failure to do so would
not reasonably be expected to have a Material Adverse Effect;
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in with all lawful orders and directives
of all Governmental Authorities regarding Environmental Laws except to the
extent that the same are being contested in good faith by appropriate
proceedings and the failure to do or the pendency of such proceedings would not
reasonably be expected to have a Material Adverse Effect; and
(c) Defend, indemnify and hold harmless the Agent and the Lenders, and
their respective employees, agents, officers and directors, from and against any
and all claims, demands, penalties, fines, liabilities, settlements, damages,
costs and expenses of whatever kind or nature known or unknown, contingent or
otherwise, arising out of, or in any way relating to the violation of,
noncompliance with or liability under, any Environmental Law applicable to the
operations of the Borrower or any of its Subsidiaries or the Properties, or any
orders, requirements or demands of Governmental Authorities related thereto,
including, without limitation, reasonable attorney's and consultant's fees,
investigation and laboratory fees, response costs, court costs and litigation
expenses, except to the extent that any of the foregoing arise out of the gross
negligence or willful misconduct of the party seeking indemnification therefor.
The agreements in this paragraph shall survive repayment of the Loans and all
other amounts payable hereunder, and termination of the Commitments.
7.9 FINANCIAL COVENANTS.
(a) Leverage Ratio. There shall be maintained with respect to the
Borrower and its Subsidiaries as of the end of each fiscal quarter, a Leverage
Ratio less than 3.0 to 1.0.
(b) Fixed Charge Coverage Ratio. There shall be maintained with respect
to the Borrower and its Subsidiaries as of the end of each fiscal quarter, a
Fixed Charge Coverage Ratio greater than 1.5 to 1.0.
(c) Net Worth. At all times not permit Net Worth to be less than
$227,000,000 increased on a cumulative basis (beginning with the fiscal quarter
ending on February 28, 1998) by an amount equal to, (i) as of the last day of
each fiscal quarter, 50% of Net Income for the fiscal quarter then ended
(without deductions for losses) plus (ii) 75% of the Net Cash Proceeds from any
Equity Transaction subsequent to the Closing Date plus (iii) 75% of the net
worth of any Person acquired by the Borrower pursuant to a Permitted
Acquisition.
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(d) Working Capital. At all times not permit the Working Capital to be
less than zero.
7.10 USE OF PROCEEDS.
Extensions of Credit will be used solely for the purposes provided in
Section 6.14.
7.11 ADDITIONAL GUARANTIES AND STOCK PLEDGES.
(a) Domestic Subsidiaries. At any time any Person which is a Domestic
Subsidiary of a Credit Party becomes a Material Subsidiary, the Borrower will
promptly notify the Agent thereof and cause such Domestic Subsidiary to become a
Guarantor hereunder by (i) execution of a Joinder Agreement, (ii) delivery of
supporting resolutions, incumbency certificates, corporation formation and
organizational documentation and opinions of counsel as the Agent may reasonably
request, and (iii) delivery of stock certificates and a related pledge agreement
or pledge joinder agreement evidencing the pledge of 65% of the Voting Stock of
each of its Majority-Owned Foreign Subsidiaries which are Material Subsidiaries
in favor of the Collateral Agent, for the benefit of the Lenders (and affiliates
of Lenders as to certain obligations under Hedging Agreements) and the
Noteholders, together in each case with undated stock transfer powers executed
in blank and UCC financing statements requested by the Agent.
(b) Foreign Subsidiaries. At any time any Person which is a
Majority-Owned Foreign Subsidiary of a Credit Party becomes a Material
Subsidiary, the Borrower will promptly notify the Agent thereof and cause (i)
delivery of supporting resolutions, incumbency certificates, corporation
formation and organizational documentation and opinions of counsel as the Agent
may reasonably request, and (ii) delivery of stock certificates (where required
for perfection under local law) and a related pledge agreement or pledge joinder
agreement evidencing the pledge of 65% of the Voting Stock of such
Majority-Owned Foreign Subsidiary owned by a Credit Party in favor of the
Collateral Agent, for the benefit of the Lenders (and affiliates of Lenders as
to certain obligations under Hedging Agreements) and the Noteholders, together
in each case with undated stock transfer powers executed in blank and UCC
financing statements requested by the Agent.
(c) Release of Stock Pledge. (i) If any Person which is a Collateral
Foreign Subsidiary no longer qualifies as a Material Subsidiary, or (ii) if any
Person which is a Collateral Foreign Subsidiary no longer is directly owned by a
Credit Party, then, within 45 days of notice thereof by the Borrower, the
Lenders shall terminate the pledge of the Voting Stock of such Person and return
such Voting Stock to the Borrower; provided, however, that after giving effect
to such release or return, the Borrower and its Subsidiaries shall be in
compliance with Section 7.11.
SECTION 8
NEGATIVE COVENANTS
Each Credit Party covenants and agrees that on the Closing Date, and so
long as this Credit Agreement is in effect and until the Commitments have been
terminated, no Revolving
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Obligations remain outstanding and all amounts owing hereunder or in connection
herewith, have been paid in full, neither the Borrower nor any of its
Subsidiaries shall:
8.1 INDEBTEDNESS.
Contract, create, incur, assume or permit to exist any Indebtedness,
except:
(a) Indebtedness arising or existing under this Credit Agreement
and the other Credit Documents;
(b) Indebtedness set forth in Schedule 8.1, and renewals,
refinancings and extensions thereof on terms and conditions no less
favorable to the Borrower than for such existing Indebtedness;
(c) Capital Lease Obligations and other Indebtedness (including
without limitation TROLS) incurred, in each case, to provide all or a
portion of the purchase price or costs of construction of an asset,
provided that (i) such Indebtedness when incurred shall not exceed the
purchase price or cost of construction of such asset, (ii) no such
Indebtedness shall be refinanced for a principal amount in excess of the
principal balance outstanding thereon at the time of such refinancing
and (iii) the total amount of all such Indebtedness shall not exceed an
amount equal to or greater than 5% of the total assets of the Borrower
and its Subsidiaries on a consolidated basis (based on the Borrower's
most recent annual or quarterly financial statements delivered pursuant
to terms of Section 7.1) at any time outstanding;
(d) Indebtedness and obligations owing under interest rate
protection agreements relating to the Revolving Obligations hereunder
and under interest rate, commodities and foreign currency exchange
protection agreements entered into in the ordinary course of business to
manage existing or anticipated risks and not for speculative purposes;
(e) Indebtedness assumed in connection with a Permitted
Acquisition (so long as such Indebtedness (i) has been fully disbursed
by the lender and cannot be reborrowed following repayment and (ii) was
not incurred in anticipation of or in connection with the respective
acquisition);
(f) other unsecured Indebtedness of the Borrower and its
Subsidiaries in an amount not to exceed $25,000,000 in the aggregate at
any one time; provided that such unsecured Indebtedness of the Foreign
Subsidiaries of the Borrower shall not exceed $10,000,000 in the
aggregate at any one time;
(g) (i) Indebtedness of the Borrower arising under the Note
Purchase Agreement and the notes related thereto (and renewals,
refinancings and extensions thereof on terms and conditions no less
favorable to the Borrower than such existing Indebtedness evidenced by
the Note Purchase Agreement) in an aggregate principal amount not to
exceed $75,000,000 at any one time and (ii) all Guaranty Obligations of
the Guarantors
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with respect to such Indebtedness referenced in Subsection (g)(i) above
arising under the Note Purchase Agreement;
(h) Indebtedness of Starber Fritz under a revolving credit
facility extended by National Bank of Canada in an amount not to exceed
40,000,000 Canadian dollars; provided that such Indebtedness shall not
be Indebtedness or a Guaranty Obligation of the Borrower or any of its
Subsidiaries other than Starber Fritz; and
(i) intercompany Indebtedness arising out of loans and advances
permitted by Section 8.5.
8.2 LIENS.
Contract, create, incur, assume or permit to exist any Lien with respect
to any of their respective property or assets of any kind (whether real or
personal, tangible or intangible), whether now owned or hereafter acquired,
except for Permitted Liens.
8.3 NATURE OF BUSINESS.
Alter the character of their business in any material respect from that
conducted as of the Closing Date or engage in any business other than the
business conducted as of the Closing Date.
8.4 CONSOLIDATION, MERGER, SALE OF ASSETS.
(a) Dissolve, liquidate or wind up their affairs or enter into any
transaction of merger or consolidation; provided, however that (i) the Borrower
may merge or consolidate with any Person so long as (A) the Borrower shall be
the continuing or surviving corporation, (B) such merger or consolidation is not
conducted in order to circumvent compliance with the Credit Documents, (C) (1)
no Default or Event of Default shall exist and (2) no Default or Event of
Default shall occur after giving effect to such merger or consolidation and (D)
to the extent such merger or consolidation is with a Person other than a
Subsidiary of the Borrower, such Person is in the same line of business as the
Borrower and its Subsidiaries, (ii) any Foreign Subsidiary of the Borrower may
be merged or consolidated with or into any other Foreign Subsidiary of the
Borrower; provided that after giving effect to any such merger or consolidation
the Borrower and its Subsidiaries shall be in compliance with Section 7.11 and
(iii) any Foreign Subsidiary of the Borrower may dissolve, liquidate or wind-up
its affairs at any time; provided that after given effect to any such
dissolution, liquidation, or a wind-up the Borrower and its Subsidiaries shall
be in compliance with Section 7.11.
(b) Sell, lease, transfer or otherwise dispose of any Property
(including accounts and notes receivable, with or without recourse) other than
(i) the sale of inventory in the ordinary course of business for fair
consideration, (ii) the sale or disposition of machinery and equipment no longer
used or useful in the conduct of such Person's business, (iii) other sales of
assets during any fiscal year having an aggregate fair market value of less than
$5,000,000 and (iv) any transfer or disposition of Property permitted by Section
8.4(a)(ii) or Section 8.4(a)(iii).
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8.5 ADVANCES, INVESTMENTS AND LOANS.
Lend money or extend credit or make advances to any Person, or purchase
or acquire any stock, obligations or securities of, or any other interest in, or
make any capital contribution to, or otherwise make an Investment in, any Person
except for Permitted Investments.
8.6 RESTRICTED PAYMENTS.
Directly or indirectly, (a) declare or make any Restricted Payment; or
(b) make any prepayment, redemption, defeaseance or acquisition for value of
(including without limitation, by way of depositing money or securities with the
trustee with respect thereto before due for the purpose of paying when due), or
refund, refinance or exchange of any Indebtedness (including without limitation
any Indebtedness arising under the Note Purchase Agreement); provided that
(I) the Borrower or any of its Subsidiaries may (A) declare or
make any Restricted Payment so long as no Default or Event of Default
exists and is continuing or would occur after giving effect thereto, (B)
prepay any Indebtedness (including any Indebtedness arising under the
Note Purchase Agreement) in such amounts as the Borrower or any
Subsidiary may choose in its sole discretion so long as no Default or
Event of Default exists and is continuing or would occur after giving
effect thereto, provided, further, that the aggregate amount expended by
the Borrower and its Subsidiaries pursuant to this subclause (I) during
any fiscal year shall not exceed 50% of Net Income for the fiscal year
immediately preceding such fiscal year;
(II) the Borrower may prepay the Indebtedness arising under the
Note Purchase Agreement so long as (A) immediately after giving effect
to such prepayment of Indebtedness, the Revolving Obligations (other
than the LOC Obligations) outstanding shall not exceed zero, (B) the
Revolving Obligations (other than the LOC Obligations) outstanding shall
not exceed zero for at least one Business Day following any such
prepayment of Indebtedness and (C) no Default or Event of Default exists
and is continuing or would occur after giving effect to any such
prepayment;
(III) the Borrower may apply the proceeds received pursuant to an
incurrence of Indebtedness permitted by Section 8.1(f) hereof to prepay
the Indebtedness arising under the Note Purchase Agreement so long as no
Default or Event of Default exists and is continuing or would occur
after giving effect to any such prepayment;
(IV) the Borrower may apply the proceeds received pursuant to an
incurrence of Indebtedness permitted by Section 8.1(g) hereof to
refinance the Indebtedness arising under the Note Purchase Agreement so
long as no Default or Event of Default exists and is continuing or would
occur after giving effect to any such refinancing; and
(V) the foregoing clause (b) shall in no event be construed to
prohibit or otherwise restrict any payment of the Indebtedness arising
under the Note Purchase
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Agreement upon the scheduled maturity or acceleration of the notes
issued thereunder or in connection with any application of proceeds of
Collateral pursuant to the Intercreditor Agreement.
8.7 TRANSACTIONS WITH AFFILIATES.
Except for limited non-arm's length transactions with Affiliates that
are negotiated in good faith and do not provide for payments, the incurrence of
obligations or the transfer of assets by the Borrower or any of its Subsidiaries
in an amount exceeding $5,000,000 in the aggregate during the term of this
Credit Agreement, enter into or permit to exist any transaction or series of
transactions, whether or not in the ordinary course of business, with any
officer, director, shareholder Subsidiary or Affiliate other than (i) customary
fees and expenses paid to directors and (ii) where such transactions are on
terms and conditions substantially as favorable as would be obtainable in a
comparable arm's-length transaction with a Person other than an officer,
director, shareholder Subsidiary or Affiliate.
8.8 FISCAL YEAR.
Change its fiscal year.
8.9 LIMITATION ON RESTRICTIONS.
Create or permit to exist any restriction of any kind on the ability of
any Subsidiary to (i) pay dividends or make any other distributions to any
Credit Party, (ii) pay Indebtedness owed to any Credit Party, (iii) make loans
or advances to any Credit Party or (iv) transfer any of its properties or assets
to any Credit Party except for (A) with respect to clause (iv) above, any
restriction with respect to any asset subject to a purchase money security
interest securing Indebtedness permitted by Section 8.1(c) and (B) (in respect
of any of the matters referred to in clauses (i) through (iv) above) such
restrictions existing under or by reason of (I) this Credit Agreement and the
other Credit Documents or (II) the Note Purchase Agreement, in each case as in
effect as of the Closing Date.
8.10 SALE LEASEBACKS.
Except for any Capital Lease permitted by Section 8.1(c), directly or
indirectly, become or remain liable as lessee or as guarantor or other surety
with respect to any lease, whether an Operating Lease or a Capital Lease, of any
Property (whether real or personal or mixed), whether now owned or hereafter
acquired, (i) which such Person has sold or transferred or is to sell or
transfer to any other Person other than the Borrower or (ii) which such Person
intends to use for substantially the same purpose as any other Property which
has been sold or is to be sold or transferred by such Person to any other Person
in connection with such lease.
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8.11 NO FURTHER NEGATIVE PLEDGES.
Except (a) pursuant to this Credit Agreement and the other Credit
Documents, (b) pursuant to Section 10.5 of the Note Purchase Agreement as in
effect as of the Closing Date and (c) with respect to prohibitions against other
encumbrances on specific Property encumbered to secure payment of particular
Indebtedness (which Indebtedness relates solely to such specific Property, and
improvements and accretions thereto, and is otherwise permitted hereby), enter
into, assume or become subject to any agreement prohibiting or otherwise
restricting the creation or assumption of any Lien upon its properties or
assets, whether now owned or hereafter acquired, or requiring the grant of any
security for such obligation if security is given for some other obligation.
8.12 CAPITAL EXPENDITURES.
Make or incur Capital Expenditures in any fiscal year of more than
$35,000,000 (provided that any unused amount for any fiscal year may be carried
over to the immediately subsequent fiscal year).
8.13 INFRINGEMENT OF PROPERTY RIGHTS.
The Borrower shall not, and shall not permit any Subsidiary to, violate
any licenses, patents, patent applications, copyrights, trademarks, tradenames
or any other property rights of any Person.
SECTION 9
EVENTS OF DEFAULT
9.1 EVENTS OF DEFAULT.
An Event of Default shall exist upon the occurrence of any of the
following specified events (each an "Event of Default"):
(a) Payment. The Borrower shall
(i) default in the payment when due of any principal of any of the
Loans or of any reimbursement obligations arising from drawings under
Letters of Credit, or
(ii) default, and such defaults shall continue for three (3) or more
Business Days, in the payment when due of any interest on the Loans or
on any reimbursement obligations arising from drawings under Letters of
Credit, or of any Fees or other amounts owing hereunder, under any of
the other Credit Documents or in connection herewith or therewith; or
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(b) Representations. Any representation, warranty or statement of the
Borrower or any Subsidiary made or deemed to be made herein, in any of the other
Credit Documents, or in any statement or certificate delivered or required to be
delivered pursuant hereto or thereto shall prove untrue in any material respect
on the date as of which it was deemed to have been made; or
(c) Covenants.
(i) a default in the due performance or observance of any term, covenant
or agreement contained in Section 7.2, 7.3(a), 7.9, 7.10 or 8.1 through
8.13, inclusive, or
(ii) a default in the due performance or observance by it of any term,
covenant or agreement (other than those referred to in subsections (a),
(b) or (c)(i) of this Section 9.1) contained in this Credit Agreement
and such default shall continue unremedied for a period of at least 30
days after the earlier of a Responsible Officer of the Borrower becoming
aware of such default or notice thereof by the Agent; or
(d) Other Credit Documents. (i) Any Credit Party shall default in the
due performance or observance of any term, covenant or agreement in any of the
other Credit Documents (subject to applicable grace or cure periods, if any), or
(ii) any Credit Document shall fail to be in full force and effect or to give
the Agent and/or the Lenders any material part of the Liens, rights, powers and
privileges purported to be created thereby; or
(e) Bankruptcy, etc. Any Bankruptcy Event shall occur with respect to
the Borrower or any of its Subsidiaries; or
(f) Defaults under Other Agreements.
(i) The Borrower or any of its Subsidiaries shall default in the
performance or observance (beyond the applicable grace period with
respect thereto, if any) of any material obligation or condition of any
contract or lease material to the Borrower and its Subsidiaries, taken
as a whole; or
(ii) With respect to other Indebtedness (other than Indebtedness
outstanding under this Credit Agreement) of the Borrower or any of its
Subsidiaries in an aggregate amount in excess of $250,000, (A) (1) the
Borrower or any of its Subsidiaries shall default in any payment (beyond
the applicable grace period with respect thereto, if any) with respect
to any such Indebtedness, or (2) the occurrence and continuance of a
default in the observance or performance of any other obligation
relating to such Indebtedness or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event
or condition shall occur or condition exist, the effect of which default
or other event or condition is to cause, or permit, the holder or
holders of such Indebtedness (or trustee or agent on behalf of such
holders) to cause (after the giving of notice or lapse of time if
required), any such Indebtedness to become due prior to its stated
maturity; or (B) any such Indebtedness shall be declared due and
payable, or required to be prepaid other than by a regularly scheduled
required prepayment, prior to the stated maturity thereof; or
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(g) Judgments. One or more judgments or decrees shall be entered against
one or more of the Borrower or any of its Subsidiaries involving a liability of
$7,000,000 or more in the aggregate (to the extent not (i) paid or (ii) fully
covered by insurance provided by a carrier who has acknowledged coverage and has
the ability to perform) and any such judgments or decrees shall not have been
vacated, discharged or stayed or bonded pending appeal within 30 days from the
entry thereof; or
(h) ERISA. Any of the following events or conditions, if such event or
condition could reasonably be expected to have a Material Adverse Effect: (1)
any "accumulated funding deficiency," as such term is defined in Section 302 of
ERISA and Section 412 of the Code, whether or not waived, shall exist with
respect to any Plan, or any lien shall arise on the assets of the Borrower or
any of its Subsidiaries or any ERISA Affiliate in favor of the PBGC or a Plan;
(2) an ERISA Event shall occur with respect to a Single Employer Plan, which is,
in the reasonable opinion of the Agent, likely to result in the termination of
such Plan for purposes of Title IV of ERISA; (3) an ERISA Event shall occur with
respect to a Multiemployer Plan or Multiple Employer Plan, which is, in the
reasonable opinion of the Agent, likely to result in (i) the termination of such
Plan for purposes of Title IV of ERISA, or (ii) the Borrower or any of its
Subsidiaries or any ERISA Affiliate incurring any liability in connection with a
withdrawal from, reorganization of (within the meaning of Section 4241 of
ERISA), or insolvency of (within the meaning of Section 4245 of ERISA) such
Plan; or (4) any prohibited transaction (within the meaning of Section 406 of
ERISA or Section 4975 of the Code) or breach of fiduciary responsibility shall
occur which may subject the Borrower or any of its Subsidiaries or any ERISA
Affiliate to any liability under Sections 406, 409, 502(i), or 502(l) of ERISA
or Section 4975 of the Code, or under any agreement or other instrument pursuant
to which the Borrower or any of its Subsidiaries or any ERISA Affiliate has
agreed or is required to indemnify any person against any such liability; or
(i) Note Purchase Agreement. There shall occur a default or an Event of
Default (as defined in the Note Purchase Agreement) under the Note Purchase
Agreement; or
(j) Synthetic Lease Documents. There shall occur an Event of Default (as
defined in the Participation Agreement) under the Participation Agreement; or
(k) Ownership. There shall occur a Change of Control.
9.2 ACCELERATION; REMEDIES.
Upon the occurrence of an Event of Default, and at any time thereafter,
the Agent shall, upon the request and direction of the Required Lenders, by
written notice to the Borrower take any of the following actions:
(i) Termination of Commitments. Declare the Commitments terminated
whereupon the Commitments shall be immediately terminated.
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(ii) Acceleration. Declare the unpaid principal of and any accrued
interest in respect of all Loans, any reimbursement obligations arising
from drawings under Letters of Credit and any and all other indebtedness
or obligations of any and every kind owing by the Borrower to the Agent
and/or any of the Lenders hereunder to be due whereupon the same shall
be immediately due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the
Borrower.
(iii) Cash Collateral. Direct the Borrower to pay (and the Borrower
agrees that upon receipt of such notice, or upon the occurrence of an
Event of Default under Section 9.1(e), it will immediately pay) to the
Agent additional cash, to be held by the Agent, for the benefit of the
Lenders, in a cash collateral account as additional security for the LOC
Obligations in respect of subsequent drawings under all then outstanding
Letters of Credit in an amount equal to the maximum aggregate amount
which may be drawn under all Letters of Credit then outstanding.
(iv) Enforcement of Rights. Enforce any and all rights and interests
created and existing under the Credit Documents and all rights of
set-off.
Notwithstanding the foregoing, if an Event of Default specified in Section
9.1(e) shall occur, then the Commitments shall automatically terminate and all
Loans, all reimbursement obligations arising from drawings under Letters of
Credit, all accrued interest in respect thereof, all accrued and unpaid Fees and
other indebtedness or obligations owing to the Agent and/or any of the Lenders
hereunder automatically shall immediately become due and payable without
presentment, demand, protest or the giving of any notice or other action by the
Agent or the Lenders, all of which are hereby waived by the Borrower.
SECTION 10
AGENCY PROVISIONS
10.1 APPOINTMENT.
(a) Each Lender hereby designates and appoints NationsBank of
Texas, N.A. as Agent (in such capacity, the "Agent") of such Lender to
act as specified herein and the other Credit Documents, and each such
Lender hereby authorizes the Agent as the Agent for such Lender, to take
such action on its behalf under the provisions of this Credit Agreement
and the other Credit Documents and to exercise such powers and perform
such duties as are expressly delegated by the terms hereof and of the
other Credit Documents, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the
contrary elsewhere herein and in the other Credit Documents, the Agent
shall not have any duties or responsibilities, except those expressly
set forth herein and therein, or any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Credit Agreement or
any of the other Credit Documents, or shall otherwise exist against the
Agent. The provisions of this Section are solely for the benefit of the
Agent and the Lenders and none of the Credit Parties shall have any
rights as a third
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party beneficiary of the provisions hereof. In performing its functions
and duties under this Credit Agreement and the other Credit Documents,
the Agent shall act solely as Agent of the Lenders and does not assume
and shall not be deemed to have assumed any obligation or relationship
of agency or trust with or for the Borrower or any of its Affiliates.
(b) Each Lender hereby consents to and approves the terms of the
Intercreditor Agreement, a copy of which is attached hereto as Schedule
10.1(b). By execution hereof, the Lenders acknowledge the terms of the
Intercreditor Agreement and agree to be bound by the terms thereof and
further authorize and direct the Agent to enter into the Intercreditor
Agreement on behalf of all the Lenders.
10.2 DELEGATION OF DUTIES.
The Agent may execute any of their respective duties hereunder or under
the other Credit Documents by or through agents or attorneys-in-fact and shall
be entitled to advice of counsel concerning all matters pertaining to such
duties. The Agent shall not be responsible for the negligence or misconduct of
any agents or attorneys-in-fact selected by it with reasonable care.
10.3 EXCULPATORY PROVISIONS.
The Agent and its officers, directors, employees, agents,
attorneys-in-fact or affiliates shall not be (i) liable for any action lawfully
taken or omitted to be taken by it or such Person under or in connection
herewith or in connection with any of the other Credit Documents (except for its
or such Person's own gross negligence or willful misconduct), or (ii)
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by any of the Credit Parties contained herein
or in any of the other Credit Documents or in any certificate, report, document,
financial statement or other written or oral statement referred to or provided
for in, or received by the Agent under or in connection herewith or in
connection with the other Credit Documents, or enforceability or sufficiency
therefor of any of the other Credit Documents, or for any failure of the
Borrower to perform its obligations hereunder or thereunder. The Agent shall not
be responsible to any Lender for the effectiveness, genuineness, validity,
enforceability, collectibility or sufficiency of this Credit Agreement, or any
of the other Credit Documents or for any representations, warranties, recitals
or statements made herein or therein or made by the Borrower in any written or
oral statement or in any financial or other statements, instruments, reports,
certificates or any other documents in connection herewith or therewith
furnished or made by the Agent to the Lenders or by or on behalf of the Borrower
to the Agent or any Lender or be required to ascertain or inquire as to the
performance or observance of any of the terms, conditions, provisions, covenants
or agreements contained herein or therein or as to the use of the proceeds of
the Loans or the use of the Letters of Credit or of the existence or possible
existence of any Default or Event of Default or to inspect the properties, books
or records of the Borrower or its Affiliates.
10.4 RELIANCE ON COMMUNICATIONS.
The Agent shall be entitled to rely, and shall be fully protected in
relying, upon any note, writing, resolution, notice, consent, certificate,
affidavit, letter, cablegram, telegram, telecopy, telex or
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teletype message, statement, order or other document or conversation believed by
it to be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including,
without limitation, counsel to the Borrower, independent accountants and other
experts selected by the Agent with reasonable care). The Agent may deem and
treat the Lenders as the owner of their respective interests hereunder for all
purposes unless a written notice of assignment, negotiation or transfer thereof
shall have been filed with the Agent in accordance with Section 11.3(b) hereof.
The Agent shall be fully justified in failing or refusing to take any action
under this Credit Agreement or under any of the other Credit Documents unless it
shall first receive such advice or concurrence of the Required Lenders as it
deems appropriate or it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. The Agent shall in all
cases be fully protected in acting, or in refraining from acting, hereunder or
under any of the other Credit Documents in accordance with a request of the
Required Lenders (or to the extent specifically provided in Section 11.6, all
the Lenders) and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders (including their successors and
assigns).
10.5 NOTICE OF DEFAULT.
The Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default hereunder unless the Agent has
received notice from a Lender or the Borrower referring to the Credit Document,
describing such Default or Event of Default and stating that such notice is a
"notice of default." In the event that the Agent receives such a notice, the
Agent shall give prompt notice thereof to the Lenders. The Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Required Lenders.
10.6 NON-RELIANCE ON AGENT AND OTHER LENDERS.
Each Lender expressly acknowledges that each of the Agent and its
officers, directors, employees, agents, attorneys-in-fact or affiliates has not
made any representations or warranties to it and that no act by the Agent or any
affiliate thereof hereinafter taken, including any review of the affairs of the
Borrower or any of its Affiliates, shall be deemed to constitute any
representation or warranty by the Agent to any Lender. Each Lender represents to
the Agent that it has, independently and without reliance upon the Agent or any
other Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
assets, operations, property, financial and other conditions, prospects and
creditworthiness of the Borrower or its Affiliates and made its own decision to
make its Loans hereunder and enter into this Credit Agreement. Each Lender also
represents that it will, independently and without reliance upon the Agent or
any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Credit Agreement, and to
make such investigation as it deems necessary to inform itself as to the
business, assets, operations, property, financial and other conditions,
prospects and creditworthiness of the Borrower and its Affiliates. Except for
notices, reports and other documents expressly required to be furnished to the
Lenders by the Agent hereunder, the Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, operations, assets, property, financial or other
conditions, prospects or
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creditworthiness of the Borrower or its respective Affiliates which may come
into the possession of the Agent or any of its officers, directors, employees,
agents, attorneys-in-fact or affiliates.
10.7 INDEMNIFICATION.
The Lenders agree to indemnify the Agent in its capacity as such (to the
extent not reimbursed by the Borrower and without limiting the obligation of the
Borrower to do so), ratably according to their respective Commitments (or if the
Commitments have expired or been terminated, in accordance with the respective
principal amounts of outstanding Loans and Participation Interests of the
Lenders), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever which may at any time (including without limitation at
any time following the final payment of all of the obligations of the Borrower
hereunder and under the other Credit Documents) be imposed on, incurred by or
asserted against the Agent in its capacity as such in any way relating to or
arising out of this Credit Agreement or the other Credit Documents or any
documents contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the Agent under
or in connection with any of the foregoing; provided that no Lender shall be
liable for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the gross negligence or willful misconduct of the Agent. If any
indemnity furnished to the Agent for any purpose shall, in the opinion of the
Agent, be insufficient or become impaired, the Agent may call for additional
indemnity and cease, or not commence, to do the acts indemnified against until
such additional indemnity is furnished. The agreements in this Section shall
survive the repayment of the Loans, LOC Obligations and other obligations under
the Credit Documents and the termination of the Commitments hereunder.
10.8 AGENT IN ITS INDIVIDUAL CAPACITY.
The Agent and its affiliates may make loans to, accept deposits from and
generally engage in any kind of business with the Borrower, its Subsidiaries or
their respective Affiliates as though the Agent were not the Agent hereunder.
With respect to the Loans made by and all obligations of the Borrower hereunder
and under the other Credit Documents, the Agent shall have the same rights and
powers under this Credit Agreement as any Lender and may exercise the same as
though it were not the Agent, and the terms "Lender" and "Lenders" shall include
the Agent in its individual capacity.
10.9 SUCCESSOR AGENT.
The Agent may, at any time, resign upon twenty (20) days' written notice
to the Borrower and the Lenders. Upon any such resignation, the Required
Lenders, with the prior written consent of the Borrower (provided that no
consent of the Borrower shall be required during the existence and continuance
of an Event of Default) which consent shall not be unreasonably withheld or
delayed, shall have the right to appoint a successor Agent. If no successor
Agent shall have been so appointed by the Required Lenders, and shall have
accepted such appointment, within 30 days after the notice of resignation, then
the retiring Agent shall select a successor Agent provided such successor is a
Lender hereunder or a commercial bank organized under the laws of the United
States of America or of any State thereof and has a combined capital and surplus
of at least $400,000,000. Upon the acceptance of
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any appointment as Agent hereunder by a successor, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations as Agent, as appropriate, under this Credit
Agreement and the other Credit Documents and the provisions of this Section 10.9
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent under this Credit Agreement.
SECTION 11
MISCELLANEOUS
11.1 NOTICES.
Except as otherwise expressly provided herein, all notices and other
communications shall have been duly given and shall be effective (i) when
delivered, (ii) when transmitted via telecopy (or other facsimile device) with
receipt confirmed, to the number set out below, (iii) the Business Day following
the day on which the same has been delivered prepaid to a reputable national
overnight air courier service (marked for next day delivery), or (iv) the third
Business Day following the day on which the same is sent by certified or
registered mail, postage prepaid, in each case to the respective parties at the
address, in the case of the Borrower and the Agent, set forth below, and, in the
case of the Lenders, set forth on Schedule 11.1, or at such other address as
such party may specify by written notice to the other parties hereto:
if to the Borrower:
FRITZ COMPANIES, INC.
706 Mission Street
San Francisco, California 94103
Attn: Robert Arovas
Executive Vice President and
Chief Financial Officer
Telephone: (415) 538-0700
Telecopy: (415) 904-8772
with a copy to:
FRITZ COMPANIES, INC.
706 Mission Street
San Francisco, California 94103
Attn: Jan Raymond
General Counsel
Telephone: (415) 538-0420
Telecopy: (415) 904-8326
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if to the Agent:
NATIONSBANK OF TEXAS, N.A.
901 Main Street, 14th Floor
Dallas, Texas 75202
Attn: Donna Cornell
Telephone: (214) 508-2158
Telecopy: (214) 508-2515
with a copy to:
NATIONSBANK OF TEXAS, N.A.
444 South Flower Street, #4100
Los Angeles, CA 90071
Attn: Michelle Hilse
Telephone: (213) 236-4937
Telecopy: (213) 624-5812
11.2 RIGHT OF SET-OFF.
In addition to any rights now or hereafter granted under applicable law
or otherwise, and not by way of limitation of any such rights, upon the
occurrence of an Event of Default, each Lender is authorized at any time and
from time to time, without presentment, demand, protest or other notice of any
kind (all of which rights being hereby expressly waived), to set-off and to
appropriate and apply any and all deposits (general or special) and any other
indebtedness at any time held or owing by such Lender (including, without
limitation branches, agencies or Affiliates of such Lender wherever located) to
or for the credit or the account of the Borrower against obligations and
liabilities of such Person to such Lender hereunder, under the Notes, the other
Credit Documents or otherwise, irrespective of whether such Lender shall have
made any demand hereunder and although such obligations, liabilities or claims,
or any of them, may be contingent or unmatured, and any such set-off shall be
deemed to have been made immediately upon the occurrence of an Event of Default
even though such charge is made or entered on the books of such Lender
subsequent thereto. Any Person purchasing a participation in the Loans and
Commitments hereunder pursuant to Section 3.13 or Section 11.3(d) may exercise
all rights of set-off with respect to its participation interest as fully as if
such Person were a Lender hereunder.
11.3 BENEFIT OF AGREEMENT.
(a) This Credit Agreement shall be binding upon and inure to the
benefit of and be enforceable by the respective successors and assigns
of the parties hereto; provided that none of the Credit Parties may
assign or transfer any of its interests and obligations without prior
written consent of the Lenders; provided further that the rights of each
Lender to transfer, assign or grant participations in its rights and/or
obligations hereunder shall be limited as set forth in this Section
11.3.
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(b) Each Lender may assign to one or more Eligible Assignees all
or a portion of its rights and obligations under this Credit Agreement
(including, without limitation, all or a portion of its Loans, its
Notes, and its Commitment); provided, however, that
(i) each such assignment shall be to an Eligible
Assignee;
(ii) except in the case of an assignment to another Lender
or an assignment of all of a Lender's rights and obligations
under this Credit Agreement, any such partial assignment shall be
in an amount at least equal to $5,000,000 (or, if less, the
remaining amount of the Commitment being assigned by such Lender)
or an integral multiple of $1,000,000 in excess thereof;
(iii) each such assignment by a Lender shall be of a
constant, and not varying, percentage of all of its rights and
obligations under this Credit Agreement and the Notes; and
(iv) the parties to such assignment shall execute and
deliver to the Agent for its acceptance an Assignment and
Acceptance in the form of Exhibit 11.3(b) hereto, together with
any Note subject to such assignment and a processing fee of
$3,500.
Upon execution, delivery, and acceptance of such Assignment and
Acceptance, the assignee thereunder shall be a party hereto and, to the
extent of such assignment, have the obligations, rights, and benefits of
a Lender hereunder and the assigning Lender shall, to the extent of such
assignment, relinquish its rights and be released from its obligations
under this Credit Agreement. Upon the consummation of any assignment
pursuant to this Section 11.3(b), the assignor, the Agent and the
Borrower shall make appropriate arrangements so that, if required, new
Notes are issued to the assignor and the assignee. If the assignee is
not incorporated under the laws of the United States of America or a
state thereof, it shall deliver to the Borrower and the Agent
certification as to exemption from deduction or withholding of Taxes in
accordance with Section 3.11.
(c) The Agent shall maintain at its address referred to in
Section 11.1 a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and
addresses of the Lenders and the Commitment of, and principal amount of
the Loans owing to, each Lender from time to time (the "Register"). The
entries in the Register shall be conclusive and binding for all
purposes, absent manifest error, and the Borrower, the Agent and the
Lenders may treat each Person whose name is recorded in the Register as
a Lender hereunder for all purposes of this Credit Agreement. The
Register shall be available for inspection by the Borrower or any Lender
at any reasonable time and from time to time upon reasonable prior
notice.
(d) Upon its receipt of an Assignment and Acceptance executed by
the parties thereto, together with any Note subject to such assignment
and payment of the processing
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fee, the Agent shall, if such Assignment and Acceptance has been
completed and is in substantially the form of Schedule 11.3(b) hereto,
(i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof
to the parties thereto.
(e) Each Lender may sell participations to one or more Persons in
all or a portion of its rights, obligations or rights and obligations
under this Credit Agreement (including all or a portion of its
Commitment or its Loans); provided, however, that (i) such Lender's
obligations under this Credit Agreement shall remain unchanged, (ii)
such Lender shall remain solely responsible to the other parties hereto
for the performance of such obligations, (iii) the participant shall be
entitled to the benefit of the yield protection provisions contained
herein and the right of set-off contained in Section 11.2, and (iv) the
Borrower shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Credit
Agreement, and such Lender shall retain the sole right to enforce the
obligations of the Borrower relating to its Loans and its Notes and to
approve any amendment, modification, or waiver of any provision of this
Credit Agreement (other than amendments, modifications, or waivers
decreasing the amount of principal of or the rate at which interest is
payable on such Loans or Notes, extending any scheduled principal
payment date or date fixed for the payment of interest on such Loans or
Notes, or extending its Commitment).
(f) Notwithstanding any other provision set forth in this Credit
Agreement, any Lender may at any time assign and pledge all or any
portion of its Loans and its Notes to any Federal Reserve Bank as
collateral security pursuant to Regulation A and any Operating Circular
issued by such Federal Reserve Bank. No such assignment shall release
the assigning Lender from its obligations hereunder.
(g) Any Lender may furnish any information concerning the
Borrower or any of its Subsidiaries in the possession of such Lender
from time to time to assignees and participants (including prospective
assignees and participants), subject, however, to the provisions of
Section 11.14 hereof.
11.4 NO WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of the Agent or any Lender in exercising
any right, power or privilege hereunder or under any other Credit Document and
no course of dealing between the Agent or any Lender and the Borrower shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, power or privilege hereunder or under any other Credit Document preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege hereunder or thereunder. The rights and remedies provided herein
are cumulative and not exclusive of any rights or remedies which the Agent or
any Lender would otherwise have. No notice to or demand on the Borrower in any
case shall entitle the Borrower to any other or further notice or demand in
similar or other circumstances or constitute a waiver of the rights of the Agent
or the Lenders to any other or further action in any circumstances without
notice or demand.
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11.5 PAYMENT OF EXPENSES, ETC.
The Borrower agrees to: (i) pay all reasonable out-of-pocket costs and
expenses (A) of the Agent in connection with the negotiation, preparation,
execution and delivery and administration of this Credit Agreement and the other
Credit Documents and the documents and instruments referred to therein
(including, without limitation, the reasonable fees and expenses of Moore & Van
Allen, PLLC, special counsel to the Agent), and any amendment, waiver or consent
relating hereto and thereto including, but not limited to, any such amendments,
waivers or consents resulting from or related to any work-out, renegotiation or
restructure relating to the performance by the Borrower under this Credit
Agreement and (B) of the Agent and the Lenders in connection with enforcement of
the Credit Documents and the documents and instruments referred to therein
(including, without limitation, in connection with any such enforcement, the
reasonable fees and disbursements of counsel for the Agent and each of the
Lenders); (ii) pay and hold each of the Lenders harmless from and against any
and all present and future stamp and other similar taxes with respect to the
foregoing matters and save each of the Lenders harmless from and against any and
all liabilities with respect to or resulting from any delay or omission (other
than to the extent attributable to such Lender) to pay such taxes; and (iii)
indemnify each Lender, its officers, directors, employees, representatives and
the Agent from and hold each of them harmless against any and all losses,
liabilities, claims, damages or expenses incurred by any of them as a result of,
or arising out of, or in any way related to, or by reason of (A) any
investigation, litigation or other proceeding (whether or not any Lender is a
party thereto) related to the entering into and/or performance of any Credit
Document or the use of proceeds of any Loans (including other extensions of
credit) hereunder or the consummation of any other transactions contemplated in
any Credit Document, including, without limitation, the reasonable fees and
disbursements of counsel incurred in connection with any such investigation,
litigation or other proceeding or (B) the presence or Release of any Materials
of Environmental Concern at, under or from any Property owned, operated or
leased by the Borrower or any of its Subsidiaries, or the failure by the
Borrower or any of its Subsidiaries to comply with any Environmental Law (but
excluding, in the case of either of clause (A) or (B) above, any such losses,
liabilities, claims, damages or expenses to the extent incurred by reason of
gross negligence or willful misconduct on the part of the Person to be
indemnified).
11.6 AMENDMENTS, WAIVERS AND CONSENTS.
Neither this Credit Agreement nor any of the other Credit Documents, nor
any of the terms hereof or thereof may be amended, changed, waived, discharged
or terminated unless such amendment, change, waiver, discharge or termination is
in writing entered into by, or approved in writing by, the Required Lenders and
the Borrower, provided, however, that:
(a) no such amendment, change, waiver, discharge or termination shall,
without the consent of each Lender directly affected thereby, (i) reduce the
rate or extend the time of payment of interest (other than as a result of
waiving the applicability of any post-default increase in interest rates) on any
Loan or fees hereunder, (ii) extend (A) the Commitments of the Lenders, (B) the
final maturity of any Loan, or any portion thereof, or (C) the time of payment
of any reimbursement obligation, or any portion thereof, arising from drawings
under Letters of Credit, (iii) reduce the principal amount on any Loan; (iv)
increase the Commitments of the Lenders over the amount thereof in effect (it
being understood and agreed that a waiver of any Default or Event of Default or
of a mandatory reduction in
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the total commitments shall not constitute a change in the terms of any
Commitment of any Lender), (v) release all or substantially all of the
Collateral, (vi) release all or substantially all of the Guarantors from the
Guaranty Obligations hereunder (vii) amend, modify or waive any provision of
this Section 11.6 or Section 3.6, 3.10, 3.11, 3.12, 3.13, 9.1(a), 11.2, 11.3,
11.5 or 11.9, (viii) reduce any percentage specified in, or otherwise modify,
the definition of "Required Lenders," or (ix) consent to the assignment or
transfer by the Borrower of any of its rights and obligations under (or in
respect of) the Credit Documents to which it is a party; and
(b) no provision of Section 2.2 may be amended without the consent of
the Issuing Lender and no provision of Section 10 may be amended without the
consent of the Agent.
11.7 COUNTERPARTS.
This Credit Agreement may be executed in any number of counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall constitute one and the same instrument. It shall not be necessary in
making proof of this Credit Agreement to produce or account for more than one
such counterpart.
11.8 HEADINGS.
The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Credit Agreement.
11.9 SURVIVAL.
All indemnities set forth herein, including, without limitation, in
Section 2.2(h), 3.9, 3.11, 10.7 or 11.5 shall survive the execution and delivery
of this Credit Agreement, the making of the Loans, the issuance of the Letters
of Credit, the repayment of the Loans, LOC Obligations and other obligations
under the Credit Documents and the termination of the Commitments hereunder, and
all representations and warranties made by the Borrower herein shall survive
delivery of the Notes and the making of the Loans hereunder.
11.10 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE.
(a) THIS CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA. Any legal action or proceeding with respect to this Credit Agreement
or any other Credit Document may be brought in the courts of the State of Texas,
or of the United States for the Northern District of Texas, and, by execution
and delivery of this Credit Agreement, the Borrower hereby irrevocably accepts
for itself and in respect of its property, generally and unconditionally, the
nonexclusive jurisdiction of such courts. The Borrower further irrevocably
consents to the service of process out of any of the aforementioned courts in
any such action or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to it at the address set out for notices
pursuant to Section 11.1, such service to become
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effective three (3) Business Days after such mailing. Nothing herein shall
affect the right of the Agent to serve process in any other manner permitted by
law or to commence legal proceedings or to otherwise proceed against the
Borrower in any other jurisdiction.
(b) The Borrower hereby irrevocably waives any objection which it may
now or hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Credit Agreement or any
other Credit Document brought in the courts referred to in subsection (a) hereof
and hereby further irrevocably waives and agrees not to plead or claim in any
such court that any such action or proceeding brought in any such court has been
brought in an inconvenient forum.
(c) TO THE EXTENT PERMITTED BY LAW, EACH OF THE AGENT, THE LENDERS AND
THE BORROWER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS CREDIT AGREEMENT,
ANY OF THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY.
11.11 SEVERABILITY.
If any provision of any of the Credit Documents is determined to be
illegal, invalid or unenforceable, such provision shall be fully severable and
the remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions.
11.12 ENTIRETY.
This Credit Agreement together with the other Credit Documents represent
the entire agreement of the parties hereto and thereto, and supersede all prior
agreements and understandings, oral or written, if any, including any commitment
letters or correspondence relating to the Credit Documents or the transactions
contemplated herein and therein.
11.13 BINDING EFFECT; TERMINATION.
(a) This Credit Agreement shall become effective at such time when all
of the conditions set forth in Section 5.1 and Section 5.2(a) have been
satisfied or waived by the Lenders and it shall have been executed by the
Borrower and the Agent, and the Agent shall have received copies hereof
(telefaxed or otherwise) which, when taken together, bear the signatures of each
Lender, and thereafter this Credit Agreement shall be binding upon and inure to
the benefit of the Borrower, the Agent and each Lender and their respective
successors and assigns.
(b) The term of this Credit Agreement shall be until no Loans, LOC
Obligations or any other amounts payable hereunder or under any of the other
Credit Documents shall remain outstanding and until all of the Commitments
hereunder shall have expired or been terminated.
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11.14 CONFIDENTIALITY.
The Agent and each Lender (each, a "Lending Party") agrees to keep
confidential any information furnished or made available to it by the Borrower
pursuant to this Credit Agreement that is marked confidential; provided that
nothing herein shall prevent any Lending Party from disclosing such information
(a) to any other Lending Party or any affiliate of any Lending Party, or any
officer, director, employee, agent, or advisor of any Lending Party or affiliate
of any Lending Party, (b) to any other Person if reasonably incidental to the
administration of the credit facility provided herein, (c) as required by any
law, rule or regulation, (d) upon the order of any court or administrative
agency, (e) upon the request or demand of any regulatory agency or authority,
(f) that is or becomes available to the public or that is or becomes available
to any Lending Party other than as a result of disclosure by any Lending Party
prohibited by this Credit Agreement, (g) in connection with any litigation to
which such Lending Party or any of its affiliates may be a party, (h) to the
extent necessary in connection with the exercise of any remedy under this Credit
Agreement or any other Credit Document, and (i) subject to provisions
substantially similar to those contained in this Section, to any actual or
proposed participant or assignee.
11.15 CONFLICT.
To the extent that there is a conflict or inconsistency between any
provision hereof, on the one hand, and any provision of any Credit Document, on
the other hand, this Credit Agreement shall control.
[Signature Page to Follow]
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Credit Agreement to be duly executed and delivered as of the date first
above written.
BORROWER: FRITZ COMPANIES, INC.,
a Delaware corporation
By: /s/ ROBERT AROVAS
---------------------------------
Name: Robert Arovas
-------------------------------
Title: Executive Vice President
------------------------------
GUARANTORS: FRITZ AIR FREIGHT, INC., a Texas
corporation
By: /s/ ROBERT AROVAS
---------------------------------
Name: Robert Arovas
-------------------------------
Title: Executive Vice President
------------------------------
LENDERS: NATIONSBANK OF TEXAS, N.A.,
individually in its capacity as a
Lender and in its capacity as Agent
By: /s/ BRAD W. DeSPAIN
---------------------------------
Name: Brad W. DeSpain
-------------------------------
Title: Senior Vice President
------------------------------
<PAGE> 92
Signature page to Credit Agreement dated as of March 27, 1998 among Fritz
Companies, Inc., as Borrower, certain subsidiaries of the Borrower, as
Guarantors, the Lenders and NationsBank of Texas, N.A., as Agent.
LENDERS: STANDARD CHARTERED BANK
By:/s/ WOO YOUNG SONG/ /s/ QUSTANDI SHIBER
---------------------------------------
Name: Woo Young Song/Qustandi Shiber
-------------------------------------
Title: Vice President/Vice President
------------------------------------
BANKBOSTON, N.A.
By: /s/ ALICIA SZENDIUCH
---------------------------------
Name: Alicia Szendiuch
-------------------------------
Title: Director
------------------------------
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ GREGORY J. SJULLIE
---------------------------------
Name: Gregory J. Sjullie
-------------------------------
Title: Vice President
------------------------------
MELLON BANK, N.A.
By: /s/ GILL S. REALON
---------------------------------
Name: Gill S. Realon
-------------------------------
Title: Vice President
------------------------------
BANK ONE, TEXAS, N.A.
By: /s/ RICK ROGERS
---------------------------------
Name: Rick Rogers
-------------------------------
Title: Vice President
------------------------------
<PAGE> 1
EXHIBIT 10.32
================================================================================
THIS AGREEMENT CONTAINS "CONFIDENTIAL INFORMATION" AND IS SUBJECT TO SECTION 20
OF THE NOTE PURCHASE AGREEMENT REFERENCED BELOW
FRITZ COMPANIES, INC.
-------------------------------------------
FIRST AMENDMENT AGREEMENT
-------------------------------------------
RE:
NOTE PURCHASE AGREEMENT DATED AS OF APRIL 15, 1996
AND
$75,000,000
6.43% SENIOR NOTES DUE APRIL 15, 2003
DATED AS OF MARCH 1, 1998
================================================================================
<PAGE> 2
FRITZ COMPANIES, INC.
706 Mission Street
San Francisco, CA 94103
FIRST AMENDMENT AGREEMENT
RE:
NOTE PURCHASE AGREEMENT DATED AS OF APRIL 15, 1996
AND
$75,000,000
6.43% SENIOR NOTES DUE APRIL 15, 2003
Dated as of March 1, 1998
To the Institutional Investors
listed on the signature pages hereof
Ladies and Gentlemen:
Reference is made to the Note Purchase Agreement (as in effect
immediately prior to the Effective Date, the "EXISTING NOTE AGREEMENT", and as
amended hereby, the "AMENDED NOTE AGREEMENT"), dated as of April 15, 1996,
between Fritz Companies, Inc., a Delaware corporation (the "COMPANY"), and each
of the institutions listed on Annex I thereto (the "ORIGINAL HOLDERS"), under
and pursuant to which Seventy-Five Million Dollars ($75,000,000) aggregate
principal amount of the Company's 6.43% Senior Notes due April 15, 2003
(collectively, as in effect immediately prior to the Effective Date, the
"EXISTING NOTES", and as amended hereby, the "AMENDED NOTES") were issued to the
Original Holders. Each of the institutions listed on the signature pages hereof
is herein referred to, individually, as a "HOLDER", and collectively, as the
"HOLDERS".
The Company desires to enter into this First Amendment Agreement (this
"AGREEMENT") to, among other things, (i) amend the Existing Note Agreement to
modify certain financial covenants, (ii) amend the Subsidiary Guaranty to
provide for the deletion of the Foreign Material Subsidiaries as parties
thereto, (iii) require the grant, by the Company, Fritz Air Freight, Inc. and
each other Domestic Material Subsidiary from time to time owning capital stock
or similar equity interests of any Majority-Owned Foreign Material Subsidiary,
to the Collateral Agent, for the equal and ratable benefit of each of the Banks
and the holders from time to time of the Notes, of a pledge of and security
interest in 65% of the capital stock or similar equity interests of each
Majority-Owned Foreign Material Subsidiary owned by each such Person, and (iv)
amend the Existing Notes with respect to references therein to all Material
Subsidiaries entering into the Subsidiary Guaranty, all as more particularly
described herein.
As of the Effective Date (as defined in Section 3), the Holders hold,
beneficially or of record, one hundred percent (100%) of the outstanding
Existing Notes.
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<PAGE> 3
In consideration of the foregoing and for other good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged),
the Company and, subject to satisfaction of the conditions set forth in Section
3, the Holders, hereby agree to the amendments to the Existing Note Agreement
and the Existing Notes set forth herein.
1. DEFINED TERMS.
All capitalized terms used but not specifically defined in this
Agreement have the respective meanings assigned to them in, or pursuant to the
provisions of, (assuming the effectiveness of the amendments set forth herein)
the Amended Note Agreement (including, without limitation, the revisions to the
defined terms used in the Existing Note Agreement as set forth in Section 4.6 of
this Agreement). As used in this Agreement, the term "TRANSACTION DOCUMENTS"
means, collectively, each of this Agreement, the Amended Note Agreement, the
Amended Notes, the Intercreditor Agreement (as defined below) and the Pledge
Agreements (as defined below).
2. REPRESENTATIONS AND WARRANTIES.
The Company warrants and represents to each Holder that as of the
Effective Date:
2.1 ORGANIZATION; POWER AND AUTHORITY. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, and is duly qualified as a foreign corporation and is in good standing
in each jurisdiction in which such qualification is required by law, other than
those jurisdictions as to which the failure to be so qualified or in good
standing could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect. The Company has the corporate power and
authority to own or hold under lease the properties it purports to own or hold
under lease, to transact the business it transacts and proposes to transact, to
execute and deliver this Agreement and to perform the provisions of the
Transaction Documents.
2.2 AUTHORIZATION, ETC. This Agreement has been duly authorized by all
necessary corporate action on the part of the Company, and each of the
Transaction Documents constitutes a legal, valid and binding obligation of the
Company enforceable against the Company in accordance with its terms, except as
such enforceability may be limited by (a) applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and (b) general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
2.3 DISCLOSURE. None of the written statements, documents or other
written materials furnished by, or on behalf of, the Company to the Holders in
connection with the negotiation, execution and delivery of this Agreement
contain any untrue statement of a material fact or omit a material fact
necessary to make the statements contained therein or herein not misleading in
light of the circumstances in which they were made. There is no fact which the
Company has not disclosed to the Holders which materially affects adversely or,
so far as the Company can now foresee, will materially affect adversely the
business, prospects, profits, Properties or condition (financial or otherwise)
of the Company and its Subsidiaries, taken as a whole, or the ability of the
Company to perform its obligations set forth in the Transaction Documents.
2
<PAGE> 4
2.4 MATERIAL SUBSIDIARIES. Fritz Transportation International (H.K.)
Ltd., a Hong Kong corporation ("FRITZ HONG KONG"), FCI Holdings International
B.V., a Netherlands corporation ("FCI HOLDINGS"), Fritz Companies Canada Inc., a
New Brunswick corporation ("FRITZ CANADA"), and Fritz Air Freight, Inc., a Texas
corporation ("FRITZ AIR FREIGHT"), are the only Material Subsidiaries as of the
Effective Date. All of the outstanding shares of capital stock or similar equity
interests of each Majority-Owned Foreign Material Subsidiary which are being
pledged by the Company to the Collateral Agent have been validly issued, are
fully paid and nonassessable and are owned by the Company free and clear of any
Lien.
2.5 COMPLIANCE WITH LAWS, OTHER INSTRUMENTS, ETC. The execution,
delivery and performance by the Company of this Agreement, the Intercreditor
Agreement and the Pledge Agreements will not
(a) contravene, result in any breach of, or constitute a default
under, or result in the creation of any Lien in respect of any Property
of the Company or any Subsidiary under, any indenture, mortgage, deed of
trust, loan, purchase or credit agreement, lease, corporate charter or
by-laws, or any other agreement or instrument to which the Company or
any Subsidiary is bound or by which the Company or any Subsidiary or any
of their respective properties may be bound or affected,
(b) conflict with or result in a breach of any of the terms,
conditions or provisions of any order, judgment, decree, or ruling of
any court, arbitrator or Governmental Authority applicable to the
Company or any Subsidiary, or
(c) violate any provision of any statute or other rule or
regulation of any Governmental Authority applicable to the Company or
any Subsidiary.
2.6 GOVERNMENTAL AUTHORIZATIONS, ETC. No consent, approval or
authorization of, or registration, filing or declaration with, any Governmental
Authority is required in connection with the execution, delivery or performance
by the Company of this Agreement, the Intercreditor Agreement and the Pledge
Agreements.
2.7 LITIGATION; OBSERVANCE OF AGREEMENTS, STATUTES AND ORDERS.
(a) There are no actions, suits or proceedings pending or, to the
knowledge of the Company, threatened against or affecting the Company or
any Subsidiary or any Property of the Company or any Subsidiary in any
court or before any arbitrator of any kind or before or by any
Governmental Authority that, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
(b) Neither the Company nor any Subsidiary is in default under
any term of any agreement or instrument to which it is a party or by
which it is bound, or any order, judgment, decree or ruling of any
court, arbitrator or Governmental Authority or is in violation of any
applicable law, ordinance, rule or regulation (including without
limitation Environmental Laws) of any Governmental Authority, which
default or violation, individually or in the aggregate, could reasonably
be expected to have a Material Adverse Effect.
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<PAGE> 5
2.8 NO DEFAULTS. No event has occurred and is continuing and no
condition exists which, upon the effectiveness of the amendments provided for in
this Agreement, would constitute a Default or Event of Default.
3. CONDITIONS PRECEDENT
Each of the amendments set forth in Section 4 shall become effective on
the date (the "EFFECTIVE DATE") upon which all of the following conditions
precedent have been satisfied, such satisfaction to be evidenced by the
execution and delivery of the applicable counterparts of this Agreement by the
Required Holders and the Company:
3.1 CONSENT OF REQUIRED HOLDERS. The Company and the Required Holders
shall have executed and delivered this Agreement.
3.2 OPINIONS OF COUNSEL. You shall have received opinions in form and
substance satisfactory to you, dated the Effective Date, from
(a) Jan H. Raymond, Esq., general counsel for the Company,
covering the matters set forth in EXHIBIT B, and covering such other
matters incident to the transactions contemplated hereby as you or your
special counsel may reasonably request (and the Company hereby directs
Mr. Raymond to deliver such closing opinion to you),
(b) Hebb & Gitlin, your special counsel in connection with the
transactions contemplated hereby, covering such matters incident to such
transactions as you may reasonably request,
(c) special New Brunswick counsel to the Company and to Fritz
Canada in connection with the transactions contemplated hereby, covering
such matters incident to such transactions as you may reasonably
request, and
(d) special Hong Kong counsel to the Company and to Fritz Hong
Kong in connection with the transactions contemplated hereby, covering
such matters incident to such transactions as you may reasonably
request.
3.3 WARRANTIES AND REPRESENTATIONS TRUE; COMPLIANCE WITH AGREEMENT.
(a) WARRANTIES AND REPRESENTATIONS TRUE. The warranties and
representations contained in Section 2 shall be true on the Effective
Date with the same effect as though made on and as of that date.
(b) COMPLIANCE WITH THIS AGREEMENT. The Company shall have
performed and complied with all agreements and conditions contained
herein that are required to be performed or complied with by the Company
on or prior to the Effective Date, and such performance and compliance
shall remain in effect on the Effective Date.
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<PAGE> 6
3.4 OFFICER'S CERTIFICATES. You shall have received:
(a) a certificate dated the Effective Date and signed by a senior
officer of the Company, substantially in the form of EXHIBIT C; and
(b) a certificate dated the Effective Date and signed by the
Secretary or an Assistant Secretary of the Company, substantially in the
form of EXHIBIT D.
3.5 PLEDGE AGREEMENT. You shall have received a copy, certified as true
and correct by the Company, of the Pledge Agreement between the Company and the
Collateral Agent, related to the pledge of capital stock in each of Fritz Canada
and Fritz Hong Kong, substantially in the form of EXHIBIT E, duly executed and
delivered by each of the parties thereto (together with any additional pledge
agreements executed pursuant to Section 9.8 of the Amended Note Agreement, in
each case, as amended from time to time, the "PLEDGE AGREEMENTS"). All stock
certificates, if any, and undated stock powers executed in blank required to be
executed and delivered to the Collateral Agent by the Company in accordance with
the terms of the Pledge Agreements shall have been so executed and delivered,
and the Company shall provide you with copies thereof, certified as true and
correct by the Company. All consents of any Majority-Owned Foreign Material
Subsidiary, its shareholders or any other Person, required under applicable law
or any organizational document to permit the pledge of such Majority-Owned
Foreign Material Subsidiary's Foreign Material Subsidiary Stock pursuant to the
Pledge Agreement shall have been obtained, and the Company shall provide you
with copies thereof, certified as true and correct by the Company.
3.6 BANK AGREEMENT. The Company shall have delivered to you a fully
executed copy of the Bank Agreement as in effect on the Effective Date,
certified as true, complete and correct by a Responsible Officer of the Company,
and such agreement shall be in form and substance satisfactory to you.
3.7 INTERCREDITOR AGREEMENT. An intercreditor and collateral agency
agreement substantially in the form of EXHIBIT F (as amended from time to time,
the "INTERCREDITOR AGREEMENT") shall have been duly executed and delivered by
the Holders, NationsBank of Texas, N.A., as agent for the Banks, the Collateral
Agent, the Company and Fritz Air Freight, and a copy thereof evidencing such due
execution and delivery shall be delivered to you, certified as true and correct
by the Company.
3.8 EXPENSES. All fees and disbursements required to be paid pursuant to
Section 6.2 shall have been paid in full.
3.9 PROCEEDINGS SATISFACTORY. All proceedings taken in connection with
the execution and delivery of this Agreement and the transactions contemplated
hereby shall be satisfactory to the Holders and their special counsel; and the
Holders and their special counsel shall have received copies of such documents
and papers as they may reasonably request in connection therewith.
5
<PAGE> 7
4. AMENDMENTS TO EXISTING NOTE AGREEMENT, EXISTING NOTES AND SUBSIDIARY
GUARANTY.
Each of the Company and, subject to the satisfaction of the conditions
set forth in Section 3, the Holders, hereby consents and agrees to the
amendments to the Existing Note Agreement and the Existing Notes, and each other
provision, set forth in this Section 4.
4.1 AMENDMENT TO SECTION 9.6 OF THE EXISTING NOTE AGREEMENT. Section 9.6
of the Existing Note Agreement is hereby amended to read in its entirety as
follows:
9.6 PROVISION OF GUARANTIES.
The Company will cause each Person that becomes a Domestic
Material Subsidiary after the Closing to execute and deliver to each of
the holders of the Notes, immediately upon becoming a Domestic Material
Subsidiary, a duly authorized Joinder Agreement in the form of Exhibit
F, a Secretary's Certificate substantially in the form of Exhibit G, and
an opinion of counsel to the Domestic Material Subsidiary regarding the
authorization, execution and delivery of such Joinder Agreement, and its
enforceability, which opinion shall be satisfactory in all respects to
the Required Holders, provided, however, that upon the release by all
other holders of Debt of the Company and its Subsidiaries, of all of the
subsidiary guaranties held by such holders in a manner and pursuant to
documentation which, in the reasonable opinion of the holders of all of
the Notes, fully releases such subsidiary guaranties, each of the
holders of the Notes shall release the Guarantors from their obligation
under the Subsidiary Guaranty.
4.2 AMENDMENT TO SECTION 9.7 OF THE EXISTING NOTE AGREEMENT. Section 9.7
of the Existing Note Agreement is hereby amended to read in its entirety as
follows:
9.7 PARI PASSU RANKING.
To the extent that proceeds from the Collateral would not at any
time be sufficient to satisfy in full all obligations owing in respect
of the Notes and the Subsidiary Guaranty at such time, the portion of
such obligations which would not be so satisfied shall rank pari passu,
without preference or priority, with all other outstanding, unsecured,
unsubordinated obligations of the Company and the Guarantors (as the
case may be), present and future, that have not been accorded by law
preferential rights.
4.3 ADDITION OF SECTION 9.8 TO THE EXISTING NOTE AGREEMENT. Section 9 of
the Existing Note Agreement is hereby amended to add thereto Section 9.8 to read
in its entirety as follows:
9.8 PLEDGE OF FOREIGN MATERIAL SUBSIDIARY STOCK.
After the First Amendment Effective Date, the Company will, and
will cause each Domestic Material Subsidiary that directly owns Foreign
Material
6
<PAGE> 8
Subsidiary Stock that has not been pledged by such Person to the
Collateral Agent pursuant to the Pledge Agreements, to execute and
deliver to the Collateral Agent, within 30 days of so becoming the owner
of such Foreign Material Subsidiary Stock, all further instruments and
documents (including, without limitation, a pledge agreement, joinder
agreement or amendment to a Pledge Agreement) and take all further
action (including, without limitation, delivery to the Collateral Agent
of stock certificates, if any, and undated stock powers executed in
blank) that is necessary or that otherwise may be reasonably requested
by the Required Holders, in order to maintain a perfected security
interest in favor of the Collateral Agent, for the equal and ratable
benefit of each of the Banks and the holders from time to time of the
Notes, in not less than 65% of the issued and outstanding capital stock
of or similar equity interests in each of the Majority-Owned Foreign
Material Subsidiaries owned by each such Person. The Company will, and
will cause each such Subsidiary to, provide to the holders of the Notes
a Certificate of its Secretary or another responsible officer, and an
opinion of counsel to such Person, regarding the authorization,
execution and delivery of such documents and instruments, and their
enforceability, which certificate and opinion shall be satisfactory in
all respects to the Required Holders. Notwithstanding the foregoing, if
(a) all of the obligations of the Company and its
Subsidiaries to the Banks under the Bank Agreement, together with
any and all extensions, renewals or refundings of any such
obligations, shall have been indefeasibly satisfied in full in
cash, or
(b) the holders of all such obligations shall agree to
release any or all of the Collateral from the Lien of any Pledge
Agreement, in a manner and pursuant to documentation which, in
the reasonable opinion of the holders of all of the Notes, fully
releases such Collateral as security for all such obligations,
then each of the holders of the Notes shall thereupon agree to release
such Collateral from the Lien of such Pledge Agreement, provided no
holders of any Debt of the Company or its Subsidiaries shall have been,
or shall at any time be,
(i) given a pledge of or granted a security interest in
any Foreign Material Subsidiary Stock, or
(ii) given a Guaranty of such Debt by any Foreign
Material Subsidiary,
unless
(A) in the case of clause (i) above, the pledgor or
grantor with respect to such Foreign Material Subsidiary Stock
shall contemporaneously execute and deliver, to each of the
holders of the Notes, a pledge agreement, joinder agreement or
amendment to a Pledge Agreement) and take all further action
(including, without limitation, delivery of stock certificates,
if any, and undated stock powers
7
<PAGE> 9
executed in blank) that is necessary or that otherwise may be
reasonably requested by the Required Holders, in order to grant
to or for the equal and ratable benefit of the holders of the
Notes and such holder or holders of Debt (subject to
intercreditor terms among such parties that shall be no less
favorable to the holders of the Notes than the Intercreditor
Agreement), a perfected security interest in all such Foreign
Material Subsidiary Stock pledged by such Person, together with
a Certificate of such Person's Secretary or another responsible
officer, and an opinion of counsel to such Person, regarding the
authorization, execution and delivery of such documents and
instruments, and their enforceability, which certificate and
opinion shall be satisfactory in all respects to the Required
Holders, and
(B) in the case of clause (ii) above, such Foreign
Material Subsidiary shall contemporaneously execute and deliver,
to each of the holders of the Notes, a duly authorized Joinder
Agreement substantially in the form of Exhibit F, a Secretary's
Certificate substantially in the form of Exhibit G, and an
opinion of counsel to the Foreign Material Subsidiary regarding
the authorization, execution and delivery of such Joinder
Agreement, and its enforceability, which opinion shall be
satisfactory in all respects to the Required Holders.
4.4 AMENDMENT TO SECTION 10.4(a) OF THE EXISTING NOTE AGREEMENT. Clause
(a) of Section 10.4 of the Existing Note Agreement is hereby amended to read in
its entirety as follows:
(a) Debt of
(i) a Restricted Subsidiary
(A) outstanding on the date of Closing
and disclosed in Schedule 10.4, provided that
such Debt may not be extended, renewed or
refunded except as otherwise permitted by this
Agreement, or
(B) constituting a Guaranty of the
obligations of the Company under
(I) this Agreement, or
(II) the Bank Agreement, provided
that the aggregate principal amount of such
Debt of any Restricted Subsidiary may not
exceed $100,000,000, and
(ii) up to an aggregate amount not to exceed
Canadian $25,000,000 pursuant to the agreement disclosed
in Schedule 10.4;
8
<PAGE> 10
4.5 AMENDMENT TO SECTION 10.5(a)(iv) OF THE EXISTING NOTE AGREEMENT.
Clause (iv) of Section 10.5(a) of the Existing Note Agreement is hereby amended
to read in its entirety as follows:
(IV) CLOSING DATE LIENS; PLEDGE AGREEMENTS -- Liens
existing on the date of this Agreement and securing the Debt of
the Company and its Restricted Subsidiaries referred to in
Schedule 5.15; and Liens created under the Pledge Agreements;
4.6 AMENDMENT TO SECTION 11 OF THE EXISTING NOTE AGREEMENT. Section 11
of the Existing Note Agreement is hereby amended to replace the "." at the end
of paragraph (j) thereof with "; or" and add thereto paragraph (k) and paragraph
(l) to read in their entirety as follows:
(k) (i) the Company, any Guarantor, or any pledgor under
any Pledge Agreement, shall default in the due performance or
observance of any term, covenant or agreement in any of the
Financing Documents (other than this Agreement) (subject to
applicable grace or cure periods, if any), or (ii) any Financing
Document shall fail to be in full force and effect or to give the
Collateral Agent or the holders of the Notes any material part of
the Liens, rights, powers and privileges purported to be created
thereby; or
(l) there shall occur an Event of Default under and as
defined in the Bank Agreement.
4.7 AMENDMENT TO ANNEX II OF THE EXISTING NOTE AGREEMENT. Annex II of
the Existing Note Agreement is hereby amended to modify in their entirety or
add, each in their proper alphabetical order, the following defined terms:
BANK AGREEMENT -- means the Credit Agreement, dated as of March
__, 1998, among each of the Company, certain subsidiaries of the
Company, as guarantors, the Banks and NationsBank of Texas, N.A., as
agent for the Banks, as such agreement may from time to time be amended,
modified, renewed, refunded, refinanced or restated.
BANKS -- means, collectively, the "Lenders" (as defined in the
Bank Agreement) which are parties to the Bank Agreement from time to
time.
COLLATERAL -- means any and all Property that at any time is
granted to the Collateral Agent or any other Person, pursuant to any
Pledge Agreement or any other document, agreement or instrument, as
security for the payment of any or all of the obligations of the Company
under this Agreement and the Notes.
COLLATERAL AGENT -- means NationsBank of Texas, N.A., solely in
its capacity as collateral agent under the Pledge Agreements and the
Intercreditor Agreement, and together with any successor or co-agent
that becomes such in
9
<PAGE> 11
accordance with the provisions of any Pledge Agreement and the
Intercreditor Agreement.
DOMESTIC MATERIAL SUBSIDIARY -- means, at any time, any Material
Subsidiary at such time which is organized and existing under the laws
of the United States of America, any state thereof or the District of
Columbia.
FINANCING DOCUMENTS -- means, collectively, each of this
Agreement, the Notes, the Subsidiary Guaranty, each Joinder Agreement in
the form of Exhibit F, the Intercreditor Agreement, the Pledge
Agreements, and all other related agreements and documents issued or
delivered hereunder or thereunder or pursuant hereto or thereto.
FIRST AMENDMENT AGREEMENT -- means the First Amendment Agreement,
dated as of March 1, 1998, among the Company and the holders of the
Notes signatory thereto, pursuant to which this Agreement has been
amended in accordance with the terms thereof.
FIRST AMENDMENT EFFECTIVE DATE -- means "Effective Date" as
defined in the First Amendment Agreement.
FOREIGN MATERIAL SUBSIDIARY -- means, at any time, any Material
Subsidiary at such time which is not a Domestic Material Subsidiary.
FOREIGN MATERIAL SUBSIDIARY STOCK -- means the capital stock or
similar equity interests of any Majority-Owned Foreign Material
Subsidiary.
GUARANTOR -- at any time, means any Material Subsidiary that is a
party to the Subsidiary Guaranty at such time, whether by execution of
the Subsidiary Guaranty or by execution of a joinder agreement in the
form attached thereto.
INTERCREDITOR AGREEMENT -- has the meaning assigned to such term
in the First Amendment Agreement.
MAJORITY-OWNED FOREIGN MATERIAL SUBSIDIARY -- means, at any time,
any Foreign Material Subsidiary at such time, in which the Company and
the Domestic Material Subsidiaries directly own, in the aggregate, at
least 50% of the Voting Stock of such Foreign Material Subsidiary.
PLEDGE AGREEMENTS -- has the meaning assigned to such term in the
First Amendment Agreement.
4.8 AMENDMENT AND RESTATEMENT OF EXHIBIT A TO THE EXISTING NOTE
AGREEMENT. The form of 6.43% Senior Note Due April 15, 2003 set forth as Exhibit
A to the Existing Note Agreement is hereby amended and restated, in its
entirety, to be in the form of EXHIBIT A attached to this Agreement. All
references to "Exhibit A" in the Amended Note Agreement shall, if in reference
to a date on or after the Effective Date, refer to the form of 6.43% Senior Note
Due April 15, 2003 as amended and restated hereby.
10
<PAGE> 12
4.9 AMENDMENT OF EXISTING NOTES. The forms of the respective Existing
Notes are hereby amended in their entirety to conform to the form of 6.43%
Senior Note Due April 15, 2003 attached hereto as EXHIBIT A. On the Effective
Date, each of the terms of each outstanding Existing Note shall be deemed to be
amended to conform with such form, without any further action on the part of the
Company or any holder of any Existing Note. Upon surrender of any outstanding
Existing Note, the Company shall deliver to the registered holder thereof an
Amended Note in the form attached hereto as Exhibit A, dated the date of the
last interest payment on such surrendered Existing Note and in the outstanding
principal amount of such Existing Note, all in accordance with the provisions of
Section 13.2 of the Amended Note Agreement.
4.10 AMENDMENT OF SUBSIDIARY GUARANTY. The Subsidiary Guaranty is hereby
amended to delete as parties thereto each of Fritz Hong Kong, FCI Holdings,
Fritz Canada and any other Foreign Material Subsidiary party thereto, and on and
after the Effective Date, each such Foreign Material Subsidiary shall hereby be
released from all of its obligations under the Subsidiary Guaranty.
5. DIRECTION TO COLLATERAL AGENT; AFFIRMATION OF OBLIGATIONS.
5.1 HOLDER AUTHORIZATION AND CONSENT. Subject to the satisfaction of the
conditions set forth in Section 3, each Holder hereby authorizes and directs the
Collateral Agent to execute and deliver the Pledge Agreements and take such
action as is contemplated thereby.
5.2 REFERENCES. Each reference to the Agreement (as defined in the
Existing Note Agreement) or the Notes (as defined in the Existing Note
Agreement) in such documents shall be deemed and construed to refer to such
documents, as amended from time to time in accordance with the terms of the
Agreement, including, without limitation, by this Agreement (unless explicitly
stated to the contrary therein), and such documents are hereby modified
accordingly.
5.3 RIGHTS CONTINUE. The terms of this Agreement shall not operate as a
waiver by the holders of the Existing Notes of, or otherwise prejudice any such
holder's rights, remedies or powers under, the Existing Note Agreement, the
Existing Notes or under applicable law, except to the extent set forth herein.
Except as expressly provided in this Agreement:
(a) no terms and provisions of any agreement are modified or
changed by this Agreement; and
(b) the terms and provisions of the Existing Note Agreement and
the Existing Notes shall continue in full force and effect.
11
<PAGE> 13
5.4 CONTINUITY AND AFFIRMATION OF OBLIGATIONS. Notwithstanding any other
provision hereof or of any other document or agreement, the indebtedness of the
Company under the Existing Note Agreement evidenced by the Existing Notes shall
not be or be deemed to be paid or discharged or novated hereby or by the Amended
Notes and shall continue in full force and effect as amended hereby. The Company
hereby acknowledges and reaffirms all of its obligations and duties under the
Amended Note Agreement, the Amended Notes, the Intercreditor Agreement and the
Pledge Agreements.
6. MISCELLANEOUS.
6.1 SUCCESSORS AND ASSIGNS; EFFECT OF AMENDMENT. This Agreement shall be
binding upon, and shall inure to the benefit of, the successors and assigns of
the parties hereto and the holders from time to time of the Notes. Except as
amended herein, the terms and provisions of the Existing Note Agreement and the
Existing Notes are hereby ratified, confirmed and approved in all respects.
6.2 FEES AND EXPENSES. On the Effective Date, the Company shall pay all
reasonable costs and expenses of the Holders relating to this Agreement,
including, but not limited to, the statement for reasonable fees and
disbursements of the Holders' special counsel presented to the Company on or
prior to the Effective Date. The Company will also pay, upon receipt of any
statement thereof, each additional statement for reasonable fees and
disbursements of the Holders' special counsel rendered after the Effective Date
in connection with this Agreement. The obligations of the Company under this
Section 6.2 shall survive the termination of this Agreement.
6.3 SURVIVAL. All warranties, representations, certifications and
covenants made by the Company in this Agreement or in any certificate or other
instrument delivered by it or on its behalf under this Agreement shall be
considered to have been relied upon by the Holders and shall survive the
execution of this Agreement, regardless of any investigation made by or on
behalf of any Holder. All such statements made herein or in any such certificate
or other instrument shall constitute warranties and representations of the
Company under this Agreement and the Amended Note Agreement.
6.4 GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the law of
the State of New York excluding choice-of-law principles of the law of such
State that would require the application of the laws of a jurisdiction other
than such State.
6.5 SECTION HEADINGS, ETC. The titles of the Sections hereof appear as a
matter of convenience only, do not constitute a part hereof and shall not affect
the construction hereof. The words "herein," "hereof," "hereunder" and "hereto"
refer to this Agreement as a whole and not to any particular Section or other
subdivision. References to Sections are, unless otherwise specified, references
to Sections of this Agreement. References to Annexes, Schedules and Exhibits
are, unless otherwise specified, references to Annexes, Schedules and Exhibits
attached to this Agreement.
6.6 DUPLICATE ORIGINALS; EXECUTION IN COUNTERPART. Two or more duplicate
originals of this Agreement may be signed by the parties, each of which shall be
an original but all of which together shall constitute one and the same
instrument. This Agreement may be
12
<PAGE> 14
executed in one or more counterparts and shall be effective when at least one
counterpart shall have been executed by each party to this Agreement, and each
set of counterparts which, collectively, show execution by each such party to
this Agreement shall constitute one duplicate original.
[Remainder of page is intentionally blank. Next page is a signature page.]
13
<PAGE> 15
IN WITNESS WHEREOF, the Company and the Holders have executed this
Agreement as of the date first above written.
FRITZ COMPANIES, INC.
By /s/ ROBERT AROVAS
---------------------------------
Name: Robert Arovas
Title: Executive Vice President
The foregoing is hereby
agreed to as of the
date thereof.
THE LINCOLN NATIONAL LIFE INSURANCE COMPANY
BY: LINCOLN INVESTMENT MANAGEMENT, INC.,
ITS ATTORNEY-IN-FACT
By /s/ BRENDA BUUCK
----------------------------------------
Name: Brenda Buuck
Title: Second Vice President
ALLIED LIFE INSURANCE COMPANY
BY: LINCOLN INVESTMENT MANAGEMENT, INC.,
ITS ATTORNEY-IN-FACT
By /s/ BRENDA BUUCK
----------------------------------------
Name: Brenda Buuck
Title: Second Vice President
LINCOLN NATIONAL REASSURANCE COMPANY
BY: LINCOLN INVESTMENT MANAGEMENT, INC.,
ITS ATTORNEY-IN-FACT
By /s/ BRENDA BUUCK
----------------------------------------
Name: Brenda Buuck
Title: Second Vice President
<PAGE> 16
THE EQUITABLE LIFE ASSURANCE SOCIETY
OF THE UNITED STATES
By /s/ INA LANE
----------------------------------------
Name: Ina Lane
Title: Investment Officer
THE EQUITABLE OF COLORADO, INC.
By /s/ INA LANE
----------------------------------------
Name: Ina Lane
Title: Investment Officer
<PAGE> 17
GREAT-WEST LIFE & ANNUITY INSURANCE COMPANY
By /s/ WAYNE T. HOFFMAN
----------------------------------------
Name: Wayne T. Hoffman
Title: Vice President - Investments
By /s/ JULIE BOCK
----------------------------------------
Name: Julie Bock
Title: Assistant Vice President
<PAGE> 18
AID ASSOCIATION FOR LUTHERANS
By /s/ JAMES ABITZ
----------------------------------------
Name: James Abitz
Title: Vice President - Investments
By /s/ R. JERRY SCHEEL
----------------------------------------
Name: R. Jerry Scheel
Title: Second Vice President - Securities
<PAGE> 19
NATIONWIDE LIFE INSURANCE COMPANY
By /s/ EDWIN P. McCAUSLAND JR.
----------------------------------------
Name: Edwin P. McCausland Jr.
Title: Vice President - Fixed Income Securities
NATIONWIDE LIFE AND ANNUITY INSURANCE COMPANY
By /s/ EDWIN P. McCAUSLAND JR.
----------------------------------------
Name: Edwin P. McCausland Jr.
Title: Vice President - Fixed Income Securities
<PAGE> 20
WEST COAST LIFE INSURANCE COMPANY
By /s/ DIANE S. GRISWALD
----------------------------------------
Name: Diane S. Griswald
Title: Assistant Vice President - Investments
<PAGE> 21
TRANSAMERICA LIFE INSURANCE AND ANNUITY COMPANY
By /s/ JOHN M. CASPARIAN
----------------------------------------
Name: John M. Casparian
Title: Investment Officer
<PAGE> 22
AMERICAN STATES LIFE INSURANCE COMPANY
By /s/ RONALD SPAULDING
----------------------------------------
Name: Ronald Spaulding
Title: Vice President and Treasurer
<PAGE> 23
MINNESOTA FIRE & CASUALTY COMPANY
By /s/ J. GARY MORRIS
----------------------------------------
Name: J. Gary Morris
Title: Vice President -
Short Term Fixed Income Portfolio Manager
<PAGE> 24
BERKSHIRE LIFE INSURANCE COMPANY
By /s/ ELLEN I. WHITTAKER
----------------------------------------
Name: Ellen I. Whittaker
Title: Senior Investment Officer
<PAGE> 1
EXHIBIT 15
The Board of Directors and Stockholders
Fritz Companies, Inc.:
Re: Registration Statement No. 33-78472, 33-57238, 33-93070, 333-15921 and
333-07639
With respect to the subject registration statement, we acknowledge our awareness
of the use therein of our report dated March 24, 1998 related to our review of
interim financial information.
Pursuant to Rule 436(c) under the Securities Act of 1933, such report is not
considered part of a registration statement prepared or certified by an
accountant or a report prepared or certified by an accountant within the meaning
of sections 7 and 11 of the Act.
By: /s/ KPMG PEAT MARWICK LLP
-----------------------------
KPMG Peat Marwick LLP
San Francisco, California
April 6, 1998
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<FISCAL-YEAR-END> MAY-31-1998
<PERIOD-START> DEC-01-1997
<PERIOD-END> FEB-28-1998
<CASH> 43,336
<SECURITIES> 0
<RECEIVABLES> 438,942
<ALLOWANCES> 25,744
<INVENTORY> 0
<CURRENT-ASSETS> 498,648
<PP&E> 174,719
<DEPRECIATION> 82,786
<TOTAL-ASSETS> 719,130
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0
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<COMMON> 358
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<TOTAL-LIABILITY-AND-EQUITY> 719,130
<SALES> 0
<TOTAL-REVENUES> 307,210
<CGS> 0
<TOTAL-COSTS> 174,928
<OTHER-EXPENSES> 0
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<INTEREST-EXPENSE> 2,157
<INCOME-PRETAX> 3,150
<INCOME-TAX> 514
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