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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-KSB
[X] ANNUAL REPORT UNDER SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF
1934 FOR THE FISCAL YEAR ENDED DECEMBER 31, 1998
[ ] 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: 33-62038NY
SARATOGA BEVERAGE GROUP, INC.
(Name of small business issuer in its charter)
DELAWARE 14-1749554
(State of incorporation or organization) (I.R.S. Employer Identification No.)
1 GEYSER ROAD, SARATOGA SPRINGS, NEW YORK 12866
(Address of executive offices or other jurisdiction) (zip code)
Issuer's telephone number : (518) 584-6363
Securities registered pursuant to Section 12(b) of the Exchange Act:
Name of each exchange
Title of each class on which registered
------------------- ---------------------
None None
Securities registered pursuant to Section 12(g) of the Exchange Act:
CLASS A COMMON STOCK, PAR VALUE $.01 PER SHARE
(Title of class)
Check whether the issuer (1) filed all reports required to be filed by Section
13 or 15(d) of the Exchange Act during the past 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days.
Yes [X] No [ ]
Check if there is no disclosure of delinquent filers in response to Item 405 of
Regulation S-B contained in this form, and no disclosure will be contained, to
the best of registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-KSB or any
amendment to this Form 10-KSB. [ ]
Issuer's revenues for the fiscal year ended December 31, 1998 were $8,881,242.
The aggregate market value of the voting and non-voting common equity held by
non-affiliates of the issuer, based on the closing sale price of the common
stock on March 8,1999 as reported on the NASDAQ SmallCap Market System, was
approximately $7,542,756. Shares of the common stock held by each officer and
director and by each person who owns 5% or more of the outstanding common stock
may be deemed to be affiliates for this purpose. This determination of
affiliate status is not necessarily a conclusive determination of the
affiliates of the issuer for other purposes.
As of March 8, 1999, the issuer had outstanding 4,740,125 shares of Class A
common stock, $.01 par value per share, and 522,955 shares of Class B common
stock, $.01 par value per share.
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DOCUMENTS INCORPORATED BY REFERENCE
None.
Transitional Small Business Disclosure Format Yes [ ] No [X]
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PART I
ITEM 1. BUSINESS
GENERAL
The Company is primarily engaged in the bottling, marketing and distribution of
spring and mineral water products and in packaging products for others
("co-packing"). The Company's product line currently includes: sparkling spring
water, sparkling essence-flavored spring water products, non-carbonated spring
water and non-carbonated spring water with flavors. All of the Company's
products are marketed as premium domestic bottled water primarily under the
proprietary brand name "Saratoga." The Saratoga brand name has been in
existence for over 125 years.
The Company's springs and bottling facilities have been operated through the
years by a number of owners, including Anheuser-Busch and, most recently, Evian
Waters of France, a division of BSN, S.A. Anheuser-Busch and Evian Waters of
France each operated the business for approximately two years. The Company was
organized and acquired the assets of its business in April 1992 from the owners
of Evian Waters of France. The Company's bottling facilities, which had been
closed since May 1991 by the previous owners, recommenced operations in May
1992. Since that time, the Company has undertaken the task of rebuilding a
distribution network and customer base for the Saratoga brand beverage
products.
Since the end of the 1980s, the bottled water industry has experienced rapid
growth. The industry is divided into two distinct segments: non-carbonated
water and sparkling (carbonated) water. The Company believes that
non-carbonated water is becoming an alternative for municipal tap water and
that it is perceived by consumers as a healthy and refreshing beverage
alternative to soft drinks, coffee, juices and juice products. The Company also
believes that sparkling water is perceived as a healthy and refreshing beverage
alternative to beer, liquor and wine. The Company anticipates that sales in the
bottled water industry will continue to grow as consumer trends involving
increased health and fitness consciousness continue to develop and grow. The
Company believes that it is well-positioned to take advantage of the
anticipated future growth of the bottled water industry.
On January 29, 1999, the Company consummated the acquisition of The Fresh Juice
Company, Inc. ("Fresh Juice"). Fresh Juice manufactures, markets and
distributes fresh squeezed and frozen fresh squeezed citrus juices, fresh fruit
smoothies (blends of juices and purees) and other non-carbonated beverages
marketed under the labels "Fresh Pik't," "the Fresh Juice Company," "Hansen's,"
"Ultimate" and "Just Pik't." Fresh Juice will be operated as a wholly owned
subsidiary of the Registrant.
Pursuant to the terms of the merger, each holder of a share of Fresh Juice
common stock received $2.244 per share in cash and 0.33 shares of Class A
common stock of the Company. In the aggregate, the stockholders of Fresh Juice
received approximately $14.3 million in cash and approximately 2.14 million
shares of Class A common stock of the Company.
Pursuant to the terms of the merger, Steven Bogen, Chief Executive Officer of
Fresh Juice, was added to the Board of Directors of the Company. Mr. Bogen also
became a consultant to the Company following the Merger. Jeffrey Heavirland, in
addition to his responsibilities of Chief Executive Officer of The Fresh Juice
of California, Inc. d/b/a Hansen's Juice Company, a subsidiary of Fresh Juice,
became an officer of the Company.
In connection with the merger, the Company consummated a financing with
NationsBank, N.A., which included an $8 million term loan and a $14 million
revolving credit facility. The financing constituted the source of the funds
for the acquisition.
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In addition, concurrently with the merger, R. J. Barry Cox was added to the
Board of Directors of the Company, and John Morabito resigned from the Board of
Directors to become the Company's Executive Vice President, Sales and
Marketing.
PRODUCTS
The main product lines sold under the Saratoga label include various types of
bottled water: sparkling spring water, sparkling lemon essence-flavored spring
water, sparkling lime essence-flavored spring water, sparkling berry
essence-flavored spring water and natural non-carbonated spring water. The
company also markets a line of flavored spring water beverages under the name
Saratoga Splash.
The Company's bottled water is sold in a variety of bottle sizes. The sparkling
spring water products are packaged in three different sizes: 7.7 ounce, 12
ounce and 28 ounce glass cobalt bottles. The non-carbonated water is packaged
in .5 liter, 1 liter, 1.5 liter and 24 ounce PET recyclable bottles and 12
ounce and 28 ounce glass bottles.
On June 30, 1997 the Company entered into an agreement with Mistic Brands, Inc.
("Mistic") that granted the Company the non-exclusive right to use the
formulations and the exclusive right to use the graphic designs utilized by
Mistic in connection with beverages sold under the Saratoga Splash trademark
pursuant to the original agreement. The Company pays Mistic a royalty for cases
sold under the Saratoga Splash trademark. Saratoga Splash is a non-carbonated
fruit flavored spring water product. It currently is available in six flavors:
Lemon Frost, Orange Twist, Strawberry Mist, Blueberry Burst, Grapes Galore, and
Raspberry Rush.
In June 1997, the Company entered into a three-year master distribution
agreement whereby the Company was granted the exclusive right and license to
act as the master distributor of certain products in the United States until
June 2000. The Company receives a minimum commission of $1.00 per case for each
case of products sold. The Company is responsible for collecting the
receivables from customers and remitting payments to vendors. At December 31,
1998 $155,494 was included in accounts receivable and $115,423 in accounts
payable and accrued liabilities, related to this agreement.
MARKETING AND SALES
The Company markets its products as "premium" domestic bottled water products.
The Company believes that the proprietary Saratoga brand name, which has been
in existence for over 125 years and upscale packaging connotes a premium image.
The Company's current marketing slogan is "Everything Else Is Just Water (C)."
The Company has primarily concentrated its marketing and sales activities on
the east coast of the United States, particularly in the northeastern states,
where Saratoga is a recognizable brand name. However, the Company has sold its
product to customers across the continental United States. The Company's
products are marketed and sold to both on-premise accounts, such as restaurants
and hotels, and to off-premise accounts, such as food service accounts,
convenience stores and "mom and pop" stores, as well as distributors.
The marketing and sales activities have generally involved product promotions
and sponsorships. In addition, the Company utilizes point-of-sale advertising,
in-store displays, and trade incentive programs. The Company has also
maintained a limited public relations campaign with a focus on the tradition of
Saratoga Spring water.
As is typical in the retail food and beverage industry, from time to time the
Company has provided incentives to certain grocery stores and supermarket
chains to support the merchandising of its products. Such incentives have
generally been provided in the form of free or discounted product, on a
temporary basis. In very competitive situations however, the Company has
purchased shelf space in certain supermarkets where the exposure and sales
potential justifies the cost.
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DISTRIBUTION
Since the Company commenced operations in 1992, it has been primarily focused
on securing distribution for its products. The Company's distribution network
includes primarily soft drink distributors, beer distributors and liquor
distributors. The majority of Company sales have been to distributors located
on the east coast and Puerto Rico.
COMPETITION
The bottled water industry is highly competitive, as there are over 700 brands
sold in the United States. The industry is dominated by two entities, Great
Water of France (Perrier) and Danone Group (Evian). On a regional basis, the
Company's products compete with a number of regional brands, including Poland
Springs and San Pellegrino (which are owned by The Perrier Group) in the
northeastern part of the United States and Zephyrhills (which is also owned by
The Perrier Group) in the southeastern part of the United States. The Company's
products also compete with other beverage products, including, but not limited
to, beer, liquor, wine, soft drinks, coffee, juices and juice products and "new
age" beverages.
The Company's competition includes numerous beverage bottlers and distributors,
many of which are more experienced, have greater financial and management
resources and have more established proprietary trademarks and distribution
networks than the Company. The Company believes that it is able to compete
effectively with other bottled water and beverage products because it offers a
diverse product line of quality bottled water at competitive prices.
Additionally, the Company believes that the relative proximity of its Saratoga
Springs, New York facility to several large metropolitan markets, such as New
York City and Boston, enables it to compete effectively with other regional
brands on the eastern coast of the United States.
PRODUCTION
The Company has two bottling lines, a PET line purchased and installed during
the first quarter of 1994 and substantially upgraded in 1998 and a glass
bottling line. The facility operation is at approximately 45 percent (45%) of
capacity.
SUPPLIERS
The Company does not manufacture any of the bottles or packaging in which its
products are sold. Its glass bottles are purchased from two primary suppliers
who manufacture the bottles in accordance with the Company's specifications.
The Saratoga brand name and the Company's logo are embossed on some of the
glass bottles. The Company purchases its PET bottles, caps for its PET bottles
and metal caps for its glass bottles, each from single suppliers. The Company
believes that there are alternate supplies of bottles and caps readily
available to it on comparable terms.
The Company is not affiliated with its suppliers.
MAJOR CUSTOMERS
Revenue from the Company's largest distributor, for the year ended December 31,
1998 was twenty percent (20%) of total revenues. For the year ended December
31, 1998 thirty-two percent (32%) of total revenue were generated from
co-packing. One co-packing customer represents 20% of total revenue.
TRADEMARKS
"Saratoga" is a registered trademark of the Company in the United States and
Canada for use in connection with spring water, mineral water, tonic water and
ginger ale products. The Company has sixteen other trademarks, either pending
or registered, which include the "Saratoga Vichy" name, the name "Saratoga
Splash" and the Saratoga racetrack oval label used on its bottles and
packaging.
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GOVERNMENT REGULATION
Bottled water must originate from an "approved source" in accordance with
standards prescribed by the Food and Drug Administration and the state health
departments in each of the states in which the Company's products are sold.
There are annual "compliance tests" of both the source and the finished
product.
The Company believes that its water supply, products and bottling facilities
are in compliance with all applicable state and federal government regulations,
including environmental regulations.
SEASONALITY
In the beverage industry, sales typically increase in the second and third
calendar quarters due to the seasonal effects of the weather in the eastern
United States. In order to help minimize the impact of seasonally on sales, the
Company has placed considerable emphasis on expanding marketing and
distribution in the southeastern United States, with a concentration in
Florida.
EMPLOYEES
As of March 8, 1999, the Company and its subsidiaries had 3 part-time and 287
full-time employees, including 239 production, and 51 executive, sales and
administrative employees.
None of the Company's employees are represented by a labor organization, and
the Company considers its relationship with its employees to be satisfactory.
ITEM 2. PROPERTIES
NEW YORK HEADQUARTERS
The Company owns a bottling facility and office space located on 48 acres in
Saratoga Springs, New York. The property consists of an approximately 40,000
sq. ft. building which has been substantially rebuilt since 1985. The
carbonated bottling line was installed in 1985 and the PET bottling line was
installed in 1994 and substantially upgraded during 1998. The Company believes
that its insurance policies provide adequate coverage on its facilities and
equipment. The facilities are suitable and adequate to support the Company's
current business.
In connection with the acquisition of Fresh Juice (see "Item 1. Business
Developments"), the Company acquired the following properties:
NEWARK OFFICES AND DISTRIBUTION FACILITY
Fresh Juice leases approximately 27,000 square feet of space located at 280
Wilson Avenue, Newark, New Jersey which includes a warehouse with 3,000 square
feet of freezer space, 11,000 square feet of cooler space and 7,800 square feet
of dry storage space, as well as approximately 5,200 square feet of office
space. The lease was executed in November, 1997 and provides for an initial
term which terminates on August 31, 2007. The lease contains two five year
options to renew which, if exercised, could extend the lease term through
August 31, 2012 and August 31, 2017, respectively.
FLORIDA PRODUCTION FACILITY
Fresh Juice owns a facility located at 1000 American Superior Boulevard, Winter
Haven, Florida which consists of a 70,000 square foot facility on four acres,
20,000 square feet of which consists of either chilled or freezer space (the
"Florida Plant"). The Florida Plant contains the first spiral quick freeze
system in the citrus industry. Fresh Juice designed the Florida Plant to be
capable of producing fresh squeezed juice, fresh frozen juice and pasteurized
juice, in addition to other juice-based beverages. Each segment of the
production process is separate and distinct with separate extraction rooms,
filling rooms, blending rooms and a separate spiral freeze system for the
frozen fresh squeezed juice. The Florida Plant is equipped with
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a laboratory designed to provide an additional measure of quality control to
assist in providing optimal flavor and shelf life for its customers.
CALIFORNIA OFFICES, WAREHOUSE AND PRODUCTION FACILITY
The Company's subsidiary, The Fresh Juice Company of California, Inc. leases
commercial space in Azusa, California, in which its offices, warehouse and
production facility are located. The total amount of leased space is 35,000
square feet, consisting of approximately 3,000 square feet of office space and
approximately 32,000 square feet of production and refrigerated warehouse
space. The lease is for a ten year six month term which began on December 1,
1992. The lease contains one five year option.
ITEM 3. LEGAL PROCEEDINGS
The Company is not a party to any material litigation.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
There was no submission of matters to a vote of security holders.
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PART II
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER
MATTERS
The Class A common stock is traded on the NASDAQ SmallCap Market under the
symbol TOGA. The following tables lists the high and low market prices for
these shares for each quarter during which Class A common stock was traded for
the years 1998 and 1997.
1998 1997
---- ----
High Low High Low
---- --- ---- ---
1st Quarter 3.8750 2.0630 7.7500 0.8750
2nd Quarter 3.5630 2.7500 6.0000 2.1250
3rd Quarter 3.2500 2.1250 3.4375 2.1250
4th Quarter 2.7500 1.6250 3.3750 2.0000
As of March 8, 1999 the approximate number of common shareholders of record was
1,716.
In February, 1998, Steel Partners II, LP purchased 275,000 shares of
unregistered Class A common stock from the Company at a purchase price of $2.25
per share. Steel partners II, LP, an affiliate of a director of the Company is
a private investment fund that invests in smallcap companies.
Carl T. Wolf, a former director of the Company, purchased 175,000 shares of
unregistered Class A common stock from the Company at a purchase price of $2.25
per share in February 1998 and resold 150,000 shares of unregistered Class A
common stock to the Company for the same price on April 17, 1998.
We have been advised that Anthony Malatino, a principal stockholder of the
Company, and Warren Lichtenstein, a director and principal stockholder of the
Company, purchased 266,258 and 206,258 shares respectively of Class A common
stock in March, 1999 in a private transaction from a former Fresh Juice
stockholder. The Company was not a party to this transaction.
Since its inception in April 1992, the Company has not paid any cash dividends
on its capital stock. The Company anticipates that its future earnings, if any,
will be retained for use in the business or for other corporate purposes, and
it is not anticipated that any cash dividends on the common stock will be paid
in the foreseeable future.
ITEM 6. MANAGEMENT DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
SAFE HARBOR STATEMENT
The Company has made, and may continue to make, various forward-looking
statements with respect to its financial position, business strategy, and plans
and objectives of management. Such forward-looking statements are identified by
the use of forward-looking words or phrases such as "anticipates," intends,"
"expects," "plans," "believe," "estimates," or words or phrases of similar
import. These forward-looking statements are subject to numerous assumptions,
risks, and uncertainties, and the statements looking forward beyond 1998 are
subject to greater uncertainty because of the increased likelihood of changes
in underlying factors and assumptions. Actual results could differ materially
from those anticipated by the
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forward-looking statements.
The Company's forward-looking statements represent its judgment only on the
dates such statements are made. By making any forward-looking statements, the
Company assumes no duty to update them to reflect new, changed, or
unanticipated events or circumstances.
BACKGROUND
The Company was formed in April 1992 in connection with the acquisition of
assets from Evian Waters of France. Results of operations data are presented
for the years ended December 31, 1998 and 1997. The Company's fiscal year ends
on December 31.
RESULTS OF OPERATIONS
The following selected financial data of the Company has been derived from the
financial statements and notes thereto of the Company, which are included in
this Form 10-KSB.
Year ended Year ended
December 31, 1998 December 31, 1997
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Statement of Operations Data:
Total revenue $8,881,242 $6,270,691
Net Income 867,146 804,628
Basic EPS $0.27 $0.28
Diluted EPS $0.26 $0.25
Year ended Year ended
December 31, 1998 December 31, 1997
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Percentage of Total Revenue:
Total revenue 100% 100%
Cost of goods sold 62 60
--- ---
Gross profit 38 40
Operating expenses
Marketing and sales 9 6
General and administrative 11 17
Depreciation, amortization
and lease expense 6 6
--- ---
Operating Income 12 11
Other (Expense) Income, net (2) 2
--- ---
Net Income 10% 13%
=== ===
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Balance Sheet Data:
Working capital $2,402,837 $2,512,738
Total assets 7,499,219 5,704,819
Total indebtedness 1,570,089 1,507,906
Accumulated deficit (5,595,443) (6,462,589)
Total stockholders' equity 4,390,070 2,914,024
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Revenue
Revenue in 1998 increased 42% to $8,881,242, an increase of $2,610,551 from
revenue of $6,270,691 in 1997. Of the $2.6 million increase in revenue,
approximately 75% is attributable to product sales. The remaining increase is
attributable to co-pack revenue.
Gross Profit Margins
Gross profit increased 34% to $3,358,308 in 1998 from $2,508,142 in 1997. The
gross profit percentage decreased two percentage points from 40% in 1997 to 38%
in 1998. The decrease in the gross profit percentage in 1998 is primarily due
to a competitive climate for the spring water PET business.
Marketing and Sales Expenses
Marketing and selling expenses increased 97% to $764,723 in 1998 from $388,709
in 1997. As a percentage of total revenue, marketing and selling expenses
increased to 9% in 1998 from 6% in 1997. The increase in marketing and sales
expenses in 1998 is primarily attributable to an increase in customer
promotions, and variable marketing expenses tied to increased sales.
General and Administrative Expenses
General and administrative expenses decreased 10% to $935,084 in 1998 from
$1,033,850 in 1997. As a percentage of total revenue, general and
administrative expenses decreased to 11% of total revenue in 1998 from 17% in
1997. The Company's general and administrative expenses are comprised primarily
of fixed costs and, as total revenue increases, they generally decrease as a
percentage of total revenue. The decrease of $98,766 in general and
administrative expenses reported by the Company in 1998 is primarily
attributable to a reduction in bad debt expense in 1998.
Depreciation, Amortization, and Equipment Lease Expense
Depreciation, amortization, and equipment lease expense increased 44% to
$566,317 in 1998 from $393,876 in 1997. As a percentage of total revenue,
depreciation, amortization and equipment lease expense was unchanged at 6% in
1998 and 1997. The increase of $172,441 in 1998 is primarily attributable to
equipment lease expense relating to the lease of equipment which began in
December, 1997. Equipment rent expense was $130,753 in 1998 and $11,050 in
1997. Depreciation and amortization increased $25,101 and $16,587 respectively
in 1998 over 1997. Depreciation and amortization was $435,563 and $393,876 for
1998 and 1997, respectively.
Other Income(Expense)
Other income of $131,990 in 1997 decreased $339,428 to other expense, net of
$207,438 in 1998. The $339,428 decrease is due to a $23,197 decrease in
commission income, a $117,072 increase in interest income, an increase of
$33,303 in interest expense and a provision for notes receivable of $400,000
in 1998. The commission income is primarily from the sale of beverage products
as part of the three-year master distribution agreement entered into in June,
1997. Interest income increased primarily due to income earned on the
$1,500,000 proceeds from the 5% Subordinated Convertible Note. Interest expense
is accrued on the unpaid principal amount of the Note. In 1998 a provision for
the full amount of the note receivable from Onyx in the amount of $400,000 was
recorded. The details of the 5% Subordinated Convertible Note and the note
receivable from Onyx are discussed in the Liquidity and Capital Resources
section below.
Income Taxes
In the year ended December 31, 1998, the Company offset substantially all
income taxes through the use of federal income tax loss carryforwards. At
December 31, 1998 and 1997 the Company has available approximately $2,774,730
and $3,781,000 respectively of federal income tax loss carryforwards which may
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be subject to annual limitations on their usage and begin to expire in the year
2008.
Liquidity and Capital Resources
As of December 31, 1998, the Company's working capital was $2,402,837 including
cash and cash equivalents of $2,576,873, as compared to working capital of
$2,512,738 and cash and cash equivalents of $1,567,973 and short term
investments of $1,153,915 at December 31, 1997. The current ratio at December
31, 1998 was 2.5 to 1 as compared to 2.9 to 1 at December 31, 1997.
The Company's debt-to-equity ratio at December 31, 1998 was 35.05%. Debt
includes the $1,500,000 5% Subordinated Convertible Note and $54,556 long-term
portion of obligation under capital lease.
Subordinated Convertible Note
On June 12, 1997 the Company entered into a Securities Purchase Agreement with
Parley International, as nominee for Maerki Baumann & Co., A.G. (Zurich)
("Purchaser"), pursuant to which Purchaser acquired $1,500,000 principal amount
of the Company's 5% Subordinated Convertible Notes due 2000 (the "Note") for an
aggregate purchase price of $1,500,000 in a private placement effected under
Section 4(2) of the Securities Act of 1933. Interest on the unpaid principal
amount accrues from the date of issuance at a rate of 5% per annum. Interest
becomes due and payable on each of the first, second and third anniversaries.
The principal amount of the Note is due and payable on the third anniversary of
the Note and is convertible at the option of the holder into shares of the
Company's Class A common stock at a conversion price of $3.50 principal amount
per share. The Note is mandatorily convertible into shares of Class A common
stock in the event that the closing price of Class A common stock exceeds $5.25
for three consecutive trading days.
Global Financial Group, Inc. acted as placement agent in connection with the
offering of the Note and, in connection therewith, received a cash commission
in the amount of $80,750 and was issued a warrant to acquire 30,000 shares of
Class A common stock for an exercise price of $3.50 per share. The commission
and the fair value of the warrant, determined to be $22,800. were recorded as
deferred financing costs and are being amortized over the life of the Note,
three years.
Onyx Note Receivable
On December 23, 1997 the Company and Onyx Management Services, LLC ("Onyx")
entered into a loan agreement whereby the Company agreed to loan Onyx up to
$800,000 (the "Loan") for working capital and general business purposes. As of
December 31, 1998 the Company had loaned and advanced to Onyx a sum of
$400,000. The Loan is collateralized by all assets of Onyx.
Interest on the Onyx Note accrues at a per annum rate equal to the greater of
(i) eight percent (8%) or (ii) the Prime Rate plus one percent (1%) as in
effect on the first day of the calendar quarter for which such interest shall
accrue is payable in arrears quarterly on the first day of each calendar
quarter, beginning on April 1, 1998. At December 31, 1998, the interest rate
was 9.25%.
$300,000 of the principal amount outstanding under the Onyx Note is due and
payable in full on December 23, 2001 and the remaining unpaid principal amount
outstanding under the Onyx Note is due and payable in full on December 23,
2000. In addition, the Company acquired a ten year warrant to purchase 35% of
outstanding stock of Onyx. The warrant may be exercised by issuance of 100,000
shares of the Company's Class A common stock.
At December 31, 1998 the Company recorded an allowance of $400,000 for the Onyx
note receivable. Interest receivable from Onyx in the amount of $9,250 for the
1998 December quarter has not been paid to the Company as of March 15, 1999 and
the Company has declared a default under the Onyx Note. The Company will
continue to monitor the note receivable and to pursue collection of the Onyx
note receivable.
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Bottling Lines
The Company upgraded its bottling lines in 1998. In December 1997, the Company
entered into a seven year operating lease for production equipment. The lease
contains a purchase option after 72 months.
The Company will continue to upgrade the facilities and equipment as dictated
by the growth of the business. While the Company will continue to incur costs
to develop and introduce new products, it will strive to limit such costs by
using innovative, cost effective targeted marketing techniques.
Acquisition of Fresh Juice Company, Inc. (Unaudited)
On January 29, 1999, the Company acquired The Fresh Juice Company, Inc. ("Fresh
Juice"). Fresh Juice produces, markets and sells fresh squeezed and frozen
fresh squeezed orange juice, grapefruit juice, fresh fruit smoothies and other
non-carbonated beverages nationally under the brand names "Just Pik't", "Fresh
Pik't", "Florida Pik't", "Ultimate" and "Hansen's". The majority of the juice
produced by Fresh Juice is fresh squeezed orange juice. The transaction was
accounted for as a purchase. The purchase price of $21.7 million was comprised
of cash of approximately $16.4 million and 2,133,553 shares of Saratoga Class A
common stock. The cash payment was financed through a credit agreement
consummated with NationsBank, N.A., which included an $8 million term loan and
a $14 million revolving credit facility. Preliminary estimates anticipate that
the purchase price exceeded the fair value of net assets acquired by
approximately $15.1 million, which is being amortized on a straight-line basis
over 25 years.
The following summarized unaudited proforma financial information for the years
ended December 31, 1998 and 1997 assumes the acquisition had occurred on
January 1 of each year:
PRO FORMA INFORMATION
(in millions, except per share data) 1998 1997
- -------------------------------------------------------------------------------
Net sales $46.5 $47.7
Net (loss) (1.3) (0.3)
(Loss) per share
Basic and fully diluted ($0.25) ($0.06)
- -------------------------------------------------------------------------------
These amounts include Fresh Juice's results for years ended November 30 and the
Company's results for years ended December 31, 1998 and 1997 after giving
effect to certain proforma adjustments. Proforma information includes
adjustments for interest expense that would have been incurred to finance the
acquisition, amortization of goodwill acquired in the acquisition, increase in
inventory and cost of goods sold to fair value, and adjustments to record
income taxes at the expected effective rate. The proforma information does not
include any adjustment for depreciation of the fair value of plant and
equipment because the fair value has not yet been determined. The proforma data
is for informational purposes only and may not necessarily reflect the results
of operations of the Company had the acquired business operated as part of the
Company for the years ended December 31, 1998 and 1997.
Future minimum operating and capital lease commitments for Fresh Juice through
2007 approximate $3,600,000.
YEAR 2000
The Year 2000 Issue is the result of computer programs being written using two
digits rather than four to define the applicable year. Any of the Company's
computer programs that have date-sensitive software may recognize a date using
"00" as the year 1900 rather than the year 2000. This could result in a system
failure or miscalculations causing disruptions of operations, including, among
other things, a temporary inability to process transactions, send invoices or
engage in similar normal business activities.
11
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State of Readiness
The Company relies on systems developed by other parties in regard to its
business, accounting and operational software. The Company believes that its
significant business, accounting and operations software are not year 2000
compliant. Additionally, the Company has assessed the impact of this issue on
its production equipment. The new bottling line installed in 1998 is certified
year 2000 compliant by the equipment manufacturer. Older manufacturing
equipment is relay controlled and is not believed to be affected by the year
2000 problem.
Cost
The Company has evaluated its management information systems (including
information technology ("IT") and non-IT computerized systems and has prepared
a plan for year 2000 compliance. The Company estimates that the cost to modify
its management information systems to become year 2000 compliant and to rebuild
its network systems will be approximately $350,000. Such modification is
expected to be completed and tested prior to December 31, 1999.
Risk
The Company relies on third party suppliers for raw materials, transportation,
utilities, and other critical services. Company operations could be affected by
the interruption of significant suppliers. The Company has initiated efforts to
evaluate the status of suppliers' compliance with year 2000 issues and are in
the process of determining alternatives and contingency plan requirements. In
the event that its current vendors are unable to certify that they will be year
2000 compliant by early 1999 or if such suppliers are unable to certify that
their failure to be year 2000 compliant will not adversely affect the Company,
the Company will be reviewing its alternatives with respect to other vendors.
There can be no assurance that the Company will be able to find suppliers which
are acceptable to the Company. Another option could include the accumulation of
inventory to assure production capability if warranted. These efforts are
intended to minimize risk, but cannot eliminate the potential for disruption
due to third party failures to be year 2000 compliant.
The Company also is dependent on customers for sales and for cashflow.
Interruptions in our customers' operations due to year 2000 could result in
decreased revenue, increased inventory and cash flow reductions. The Company is
in the process of evaluating its customers' year 2000 risks, as well as
developing alternative sales strategies. The cost of this evaluation is
expected to be nominal.
Despite the Company's efforts in regard to the year 2000 issue, the Company's
business, financial condition or results of operations could be materially
adversely affected by the failure of its systems and applications or those
operated by other parties to properly manage dates beyond 1999.
Contingency Plans
Given that modification to its management information systems (MIS)is expected
to be completed and tested by December 31, 1999, the Company has not prepared a
contingency plan pertaining to its information systems. We have been advised
that (MIS) can be brought into compliance by purchasing software "patches" in
the event that the Company has not completed the modification of its MIS to
become year 2000 compliant by December 31, 1999. The Company is in the process
of developing a contingency plan based on its evaluation of significant
suppliers and customers in regard to year 2000 compliance. The contingency plan
includes the identification of backup suppliers and broadening the customer
base.
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New Accounting Standards
The Financial Accounting Standards Board has issued Statement of Financial
Accounting Standard No. 130, Reporting Comprehensive Income. This standard
requires companies to disclose certain information regarding comprehensive
income and its components (revenues, expenses, gains, and losses) and is
required to first be disclosed in annual financial statements for fiscal years
beginning after December 15, 1997. The Company requires no additional
disclosure under this standard for the year ended December 31, 1998.
The Financial Accounting Standards Board has issued Statement of Financial
Accounting Standard No. 131, Disclosures about Segments of an Enterprise and
Related Information. This standard requires companies to disclose certain
information regarding operating segments in interim and annual financial
statements, and is required to first be disclosed in annual financial
statements for fiscal years beginning after December 15, 1997. The Company
requires no additional disclosure under this standard for the year ended
December 31, 1998 because management operates the business as one segment, the
bottling and sales of water to third parties. Management has not yet determined
the extent of additional disclosure required in 1999 from the acquisition of
The Fresh Juice Company, Inc.
The Financial Accounting Standards Board has also issued Statement of Financial
Accounting Standard No. 133, Accounting for Derivative Instruments and Hedging
Activities. The standard establishes accounting and reporting standards for
derivative instruments and for hedging activities. It requires that a company
recognize derivatives as assets or liabilities measured at fair value. This
standard is effective for all fiscal quarters of fiscal years beginning after
June 15, 1999. Management has not yet determined the impact of adoption of this
accounting standard.
ITEM 7. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
See Item 13.
ITEM 8. CHANGES AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
13
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===============================================================================
PART III
ITEM 9. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
As of March 8, 1999, the Directors, executive officers and key employees of the
Company are as follows:
Name Age Position
Robin Prever (1) 38 Chief Executive Officer
and Chairman of the Board
Adam Madkour 47 Executive Vice President
Gayle Henderson 51 Chief Financial Officer
John A. Morabito(4) 39 Executive Vice President
Jeffrey Heavirland 38 Executive Vice President
R. J. Barry Cox 54 Director
Steven Bogen 42 Director
Warren Lichtenstein (2)(3) 33 Director
Leonard Toboroff (1)(2)(3) 66 Director
- ------------
(1) Member of the Audit Committee.
(2) Member of the Compensation Committee.
(3) Member of the Stock Option Committee
(4) Resigned as director effective January 29, 1999
Ms. Prever has been the president, chief executive officer and a director of
the Company since its inception in April 1992. She was the secretary of the
Company from its inception until April 1993. Ms. Prever was a vice president of
Gabelli Asset Management Company ("GAMCO"), an investment advisory firm, where
she was employed from 1986 to 1993. Ms. Prever is an attorney and has been a
member of the bar in the State of Florida since 1985.
Mr. Madkour has been the chief operating officer of the Company since September
1993. Mr. Madkour was general manager of manufacturing for the Deer Park
Division of Clorox Inc. since 1987, and is an electrical engineer.
Ms. Henderson has been the chief financial officer of the Company since
November 15, 1997. Mrs. Henderson, who is a New York State Certified Public
Accountant, brings several years of financial management experience from the
food manufacturing industry. She was a member of the financial management group
for the Charles Freihofer Baking Company, Inc., a division of Best Foods.
Mr. Morabito has been a director of the Company since June 1993, Mr. Morabito
has been the director of sales development for United Distillers Glenmore, Inc.
since 1989. From 1986 through 1989, he was a regional manager for Brown-Foreman
Beverage Company and from 1983 through 1986 he was a regional manager for
Joseph Victori Wine Company. Prior to that time, Mr. Morabito was employed by
each of Foreman Brothers Incorporated and D. Bertoline and Sons as a sales
representative. Mr. Morabito resigned from the Board of Directors to become
Executive Vice President of Sales and Marketing for the Company effective
January 29, 1999.
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Mr. Heavirland became a director of the Company on January 29, 1999 with the
merger between the Company and Fresh Juice. Mr. Heavirland has held several
positions with Hansen's Juices, Inc. He was Director of Sales from July 1988 to
December 1993; Vice President of Sales and a Director from December 1993 to
January 1994; Director, Vice President and Secretary from January 1994 to
December 2, 1996. Mr. Heavirland was President, Chief Executive Officer and
Assistant Secretary of The Fresh Juice Company of California, Inc. from
December 2, 1996 to January 29, 1999. He was also Vice President of Sales and
Administration of The Fresh Juice Company, Inc. ("Fresh Juice") from October
27, 1997 to January 29, 1999 and a Director from June, 1997 to January 29,
1999.
Mr. Cox became a director of the Company on January 29, 1999 with the merger
between the Company and Fresh Juice. Mr. Cox has extensive experience in the
food and beverage industry, including serving as Chairman of the world-famous
Hard Rock Cafe in its formative years as a public company. Mr. Cox was Director
for Whitchurch from 1988 - 1995 and a director for the Pelican Group, Inc. from
1991 - 1993. Mr. Cox replaces John Morabito, who resigned from the Board of
Directors to become an executive officer of the Company.
Mr. Bogen became a director of the company on January 29, 1999 with the merger
between the Company and Fresh Juice. Mr. Bogen was Chief Executive Officer of
The Ultimate Juice Company ("Ultimate Juice"), Inc. from 1988 to January 29,
1999; Chairman of the Board of Ultimate Juice from 1989 through March 31, 1996;
Chairman of the Board of Clear Springs Citrus, Inc. ("Clear Springs") from July
27, 1993 through August 31, 1996; President of Clear Springs from July 27, 1993
through March 11, 1994; Co-Chairman of the Board, Chief Executive Officer, and
Secretary of Fresh Juice from April 1, 1996 to January 29, 1999.
Mr. Lichtenstein has been a director of the Company since June 29, 1994. Mr.
Lichtenstein has been with Steel Partners II, LP since 1990. Prior thereto, he
was with Ballantrae, a private investment firm, for two years. Mr. Lichtenstein
serves as a director of SL Industries, Inc., Synercom Technology Inc. and
Gateway Communications, Inc.
Mr. Toboroff has been a director of the Company since June 1993 and was elected
Chairman of the Board of Company on December 12, 1995. He resigned as Chairman
effective November 6, 1996. He has been vice president and vice chairman of the
board of Allis-Chalmers Corp. since May 1988. Mr. Toboroff has been a
practicing attorney since 1961 and from January 1, 1988 to December 31, 1990
was counsel to Summit Solomon & Feldesman in New York City. He has been a
director of Ameriscribe, Inc. since August 1987 and was the chairman and chief
executive officer thereof from December 1987 to May 1988. Mr. Toboroff was a
director from May 1982 through September 1988, chairman and chief executive
officer in June 1982 and vice chairman from June 1982 through September 1988 of
American Bakeries Company. Mr. Toboroff is also an executive vice president and
a director of Riddell Sports, Inc. Mr. Toboroff is a director of Banner
Industries and Engex Corporation.
All directors of the Company hold office until the next annual meeting of
stockholders or until their successors are elected and qualify. All
non-employee directors are reimbursed for reasonable expenses incurred in
connection with attending meetings of the Board of Directors. Directors of the
Company are also entitled to participate in the Stock Option Plan. All
non-employee directors receive a fee of 5,000 options per year, and $1,000 for
each quarterly meeting attended. Additionally, 100,000 options were granted to
Mr. Toboroff, 50,000 options were granted to Mr. Lichtenstein, 10,000 options
were granted to Mr. Morabito, 50,000 options were granted to Mr. Madkour, and
100,000 options were granted to Ms. Prever on January 2, 1998 based on the
closing price of the Company's Class A common stock at January 5, 1998. (see
Item 10, Executive Compensation, Stock Option Plan.) During 1998, 150,000
options of Ms. Prever's expired. Executive officers hold office until their
successors are chosen and qualify, subject to earlier removal by the Board of
Directors.
ITEM 10. EXECUTIVE COMPENSATION
The following table sets forth the compensation paid or accrued for such
services rendered during such period by the chief executive officer and chief
operations officer. No other executive officer of the Company had aggregate
compensation from the Company exceeding $100,000 in 1998.
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Annual Compensation Awards
------------------- ------
Position Year Salary Bonus Securities Underlying
-------- ---- ------ -----
Options/SARs (#)
Robin Prever, President 1998 $125,000 $63,937 100,000 options
and Chief Executive Officer 1997 $125,000
1996 $125,000
Adam Madkour, Chief 1998 $100,000 $19,787 50,000 options
Operating Officer 1997 $100,000 $5,600
1996 $ 90,000
Employment Agreements
In June 1993, the Company entered into an employment agreement with its
president and chief executive officer providing for annual compensation of
$125,000. The agreement provided for payment of an annual bonus at the sole
discretion of the Board of Directors, with a minimum bonus each year equal to
5% of the Company's pre-tax profit in each contract year. On January 28, 1999,
the Company entered into a new four year employment agreement with its
president, chief executive officer and chairperson of the Board (and a
director) ("the Executive") , providing for annual compensation of $200,000
with annual cost of living adjustments and other increases at the discretion of
the compensation committee. The compensation committee of the Company Board
shall set goals on an annual basis for the Executive's performance as an
officer of the Company, and shall cause the Company to pay to her an annual
bonus in addition to the Salary based on the achievement by the Executive of
such goals. Non-qualified stock options to purchase 300,000 shares of Class A
common stock at an exercise price of $2.375 per share, the fair market value on
the date of grant, were issued as part of this agreement and shall vest over a
three year period from the date of grant at a rate of 33% per year, commencing
with the first anniversary of the date of grant. Upon the termination of her
employment agreement for any reason, any unvested stock options shall lapse,
and the Executive shall have one year from the date of termination to exercise
any vested stock options. Executive's vested stock options shall be exercisable
for a period of ten (10) years from the date of issuance. Under her employment
agreement, the Executive wil not engage in a business which competes with the
Company for the term of the employment agreement and for two years thereafter.
In the event that (i) other than following a change in control, the Executive's
employment is terminated by the Company in breach of her employment agreement,
or the Executive shall terminate her employment for Good Reason (as defined in
her employment agreement), (ii) the Executive's employment shall be terminated
for any reason, other than for Cause (as defined in her employment agreement),
death or Disability (as defined in her employment agreement), within six (6)
months following a change in control (as defined in her employment agreement)
of the Company, or (iii) the Executive terminates her employment immediately
upon a change in control, then the Company will pay the Executive as a
severance and non-competition payment equal to (x) her base salary and (y) the
average bonus actually paid to the Executive with respect to the last two
years, in each case for the remainder of her term plus one year; provided,
however, that the Company shall not be required to pay the Executive more than
2.99 times the Executive's base salary and bonus compensation for the calendar
year prior to such termination. Such amount shall be paid either in a lump sum
or in monthly installments, at the Executive's discretion.
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The following table sets forth information with respect to Robin Prever and
Adam Madkour concerning the unexercised options held as of the end of the last
fiscal year. Robin Prever and Adam Madkour did not exercise options during the
Company's fiscal year ended December 31, 1998.
FISCAL YEAR-ENDED OPTION VALUES
NUMBER OF UNEXERCISED VALUE OF UNEXERCISED IN-THE-
OPTIONS MONEY OPTIONS AT
AT DECEMBER 31, 1998 DECEMBER 31, 1998
------------------------------ ------------------------------
Name Exercisable Unexercisable Exercisable Unexercisable
Robin Prever 65,000 50,000 50,000 --
Adam Madkour 71,000 25,000 25,000
Stock Option Plan
In June 1993, the Board of Directors of the Company approved the adoption of
the Saratoga Spring Water Company 1993 Stock Option Plan (the "1993 Stock
Option Plan"). The 1993 Stock Option Plan provided for the issuance of options
covering up to 466,000 shares of Class A common stock (subject to adjustments
in the event of stock splits, stock dividends and similar dilutive events) and
Stock Appreciation Rights in tandem with options. Generally, Stock Appreciation
Rights will be subject to the same terms and conditions as options. Options may
be granted under the 1993 Stock Option Plan to employees, officers or directors
of, and consultants and advisors to the Company.
On December 12, 1995 the shareholders of the Company approved an amendment to
the 1993 Stock Option Plan increasing the number of shares available for
issuance from 466,000 to 616,000.
Options granted to employees may either be incentive stock options (as defined
in the Internal Revenue Code of 1986, as amended) or non qualified stock
options. The purchase price of the Class A common stock made subject to an
option shall be determined by the Compensation Committee at the time of grant,
provided that the purchase price of incentive stock options may not be less
than the fair market value of the Company's Class A common stock on the date of
grant. Subject to the foregoing, the terms of each option and the increments in
which it is exercisable are determined by the Compensation Committee, provided
that no option may be exercised after ten years and one day from the date of
grant (ten years in the case of an incentive stock option). To the extent that
the aggregate fair market value, as of the date of grant, of the shares for
which incentive stock options become exercisable for the first time by an
optionee during any calendar year exceeds $100,000, the portion of such option
which is in excess of the $100,000 limitation will be treated as a non
qualified stock option. In addition, if an optionee owns more than 10% of the
total voting power of all classes of the Company's stock at the time the
individual is granted an incentive stock option, the purchase price per share
cannot be less than 110% of the fair market value on the date of grant and the
term of the incentive stock option cannot exceed five years from the date of
grant. Generally, options vest over a three year period unless the Compensation
Committee accelerates such provisions.
Furthermore, under the 1993 Stock Option Plan, directors who are not also
employees of the Company receive an Option ("Initial Option") to purchase 2,000
shares of Class A common stock upon their initial election to the Board of
Directors, exercisable at the fair market value on the date of grant. On June
23, 1993, each person who was then a non-employee director received 2,000
options ("IPO Options"), at an exercise price of $5.00 per share. These options
are exercisable as to 33 1/3% of the shares subject thereto on the date of
grant, and as to 33 1/3% on each of the following two anniversaries of such
date of grant. In addition, on the date of each annual meeting of stockholders
held subsequent to January 1, 1994, each qualified director will automatically
receive options ("Annual Options") to purchase 2,000 shares of Class A common
stock exercisable 50% per year over a period of two years beginning on the date
of grant, at the fair market value of the Class A common stock on the date of
grant. The Company intends to seek stockholder approval at the 1999 annual
meeting of stockholders to retroactively, as of June 29, 1998, terminate this
provision of the 1993 Stock Option Plan, given the approval of the 1998 Stock
Option Plan (as hereinafter defined).
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<PAGE>
Generally, options granted to directors under the 1993 Stock Option Plan will
terminate three months after the date of the director's termination,
resignation or retirement from the Board of Directors of the Company, but in no
event after the option has expired by its terms. If any option granted under
the 1993 Stock Option Plan should expire or become unexercisable for any reason
without having been exercised in full, the unpurchased shares will become
available for further grant under the Stock Option Plan.
At the annual meeting of stockholders held on October 28, 1998 the Saratoga
Beverage Group, Inc. 1998 Stock Option Plan (the "1998 Stock Option Plan") was
approved. The 1998 Stock Option Plan provides for the issuance of options
covering up to 900,000 shares of Class A Common Stock or Class B Common Stock
(collectively "Shares") (subject to adjustments in the event of stock splits,
stock dividends and similar dilutive events). Options may be granted under the
1998 Stock Option Plan to employees, officers or directors of the Company. The
1998 Stock Option Plan will be administered by the Stock Option Committee of
the Board (the "Committee").
Options granted to employees may either be incentive stock options (as defined
in the Internal Revenue Code of 1986, as amended) ("ISOs") or non-qualified
stock options ("NQSOs"). The purchase price of the Shares made subject to an
option shall be determined by the Stock Option Committee at the time of grant,
provided that the purchase price of incentive stock options may not be, and the
price of non-qualified options generally will not be, less than the fair market
value of the Class A Common Stock on the date of grant. Subject to the
foregoing, the terms of each option and the increments in which it is
exercisable are determined by the Stock Option Committee, which will generally
provide that no option may be exercised after ten years from the date of grant.
If an optionee owns more than 10% of the total voting power of all classes of
the Company's stock at the time the individual is granted an ISO, the purchase
price per share cannot be less than 110% of the fair market value on the date
of grant and the term of the ISO cannot exceed five years from the date of
grant.
Non-employee directors and key employees (defined as full-time employees) of
the Company or any future Subsidiary Corporation (as defined in the 1998 Stock
Option Plan) of the Company are eligible to participate in the 1998 Stock
Option Plan; provided, however, that ISOs may only be granted to employees of
the Company or a Subsidiary Corporation. Each non-employee director of the
Company on January 1 of a year during the term of the 1998 Stock Option Plan
will automatically receive options to purchase 5,000 shares of Class A common
stock at the fair market value of the Class A common stock on the date of
grant.
Any one optionee may not be granted options to purchase in excess of 300,000
shares of Common Stock during any fiscal year of the Company; provided,
however, that the Committee may adopt procedures for the counting of shares
relating to any grant of options to ensure appropriate counting, avoid double
counting and provide for adjustments in any case in which the number of shares
actually distributed differs from the number of shares previously counted in
connection with such grant; provided further, however, that the options granted
under the 1993 Plan shall not be treated as outstanding.
During 1998, a total of 437,501 stock options were granted, 30,000 were
exercised, and 190,120 expired from the 1993 Stock Option Plan and the 1998
Stock Option Plan. The Company did not grant stock appreciation rights.
18
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ITEM 11. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth, as of March 8, 1999, certain information with
respect to the beneficial ownership of the common stock by (i) each director
and nominee for director of the Company, (ii) each person named in the
compensation table, (iii) all persons known by the Company to be the beneficial
owner of more than 5% of the outstanding shares of the Company's voting
securities and (iv) all officers, directors and nominees for directors of the
Company as a group.
Number of Shares
of common Percentage Beneficially Owned
Name and Stock Stock Beneficially -----------------------------
Address of Owned Of Shares Of Voting
Beneficial Owner At March 8, 1999 (1) (1)(2)(3) Power (2)(3)
- ----------------- --------------------- ---------- ------------
Anthony Malatino (6) 778,127(21) 15.2% 30.4%
Robin Prever (4) 318,285(12) 5.9% 13.3%
Adam Madkour (4) 71,050(13) 1.4% 1.0%
Gayle Henderson(4) 1,792(14) * *
Warren Lichtenstein (5) 591,758(15) 11.3% 8.1%
John Morabito (7) 0(19) * *
Leonard Toboroff (8) 197,500(16) 3.7% 2.7%
Jeffrey Heavirland (9) 31,106(17) * *
Steven Bogen(10) 406,793(18) 7.9% 5.6%
R. J. BarryCox(11) 0(20) * *
All officers and
directors as a group 1,618,284 28.2% 29.3%
(9 persons)
- -----------------
* Less than 1%.
(1) Based upon 4,740,125 shares of Class A common stock and 522,955
shares of Class B common stock outstanding at March 8, 1999.
(2) The information presented with respect to stock ownership and related
percentage information is based on common stock as a percentage of
the aggregate number of shares of common stock outstanding, treating
the Class A common stock and the Class B common stock as a single
class. The number of shares of Class A common stock outstanding does
not include (i) 30,000 shares issuable upon exercise of warrants to
Global Financial Group, Inc. for acting as placement agent in
connection with the offering of the 5% subordinated convertible note,
(ii) shares issuable upon exercise of certain outstanding stock
options or reserved for issuance pursuant to the Company's Stock
Option Plan.
(3) The Class A common stock and the Class B common stock are identical,
except that the holders of the Class A common stock are entitled to
one vote per share, whereas the holders of the Class B common stock
are entitled to five votes per share on all matters submitted for
stockholder vote.
(4) The business address of each of Mr. Madkour, Ms. Henderson, and Ms.
Prever is c/o Saratoga Beverage Group, Inc., 11 Geyser Road, Saratoga
Springs, New York 12866.
(5) The business address of Mr. Lichtenstein is c/o Steel Partners II,
LP, 750 Lexington Avenue, New York, NY 10022.
(6) The business address of Mr. Malatino is c/o Morgan Stanley Dean
Witter, 340 Broadway, Saratoga Springs, NY 12866.
(7) The business address of Mr. Morabito is 11 Geyser Rd, Saratoga
Springs, NY 12866.
(8) The business address of Mr. Toboroff is c/o Lincolnshire Management,
Inc., 780 3rd Avenue, 40th Floor, New York, NY 10017.
(9) The business address of Mr. Heavirland is c/o The Fresh Juice Company
of California, Inc., 875
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West Eighth Street, Azusa, CA 91702-2247.
(10) The business address of Mr. Bogen is The Fresh Juice Company of New
York, Inc., 280 Wilson Avenue, Newark, NJ 07105.
(11) The business address of Mr. Cox is 11 Geyser Rd., Saratoga Springs,
NY 12866.
(12) Includes 115,000 shares of Class A common stock issuable upon
exercise of certain options that are exercisable within 60 days,
35,325 shares of Class A common stock outstanding and 167,960 shares
of Class B common stock outstanding, and excludes 300,000 shares
issuable upon options that are not exercisable within 60 days.
(13) Includes 71,000 shares of Class A common stock issuable upon exercise
of certain options that are exercisable within 60 days, 50 shares of
Class A common stock outstanding, and excludes 29,000 shares issuable
upon options that are not exercisable within 60 days.
(14) Includes 1,667 shares of Class A common stock issuable upon exercise
of certain options that are exercisable within 60 days, 125 shares of
Class A common stock outstanding, and excludes 23,333 shares issuable
upon options that are not exercisable within 60 days.
(15) Includes 85,500 shares of Class A common stock issuable upon exercise
of certain options that are exercisable within 60 days, 506,258
shares of Class A common stock outstanding, and excludes 27,500
shares issuable upon options that are not exercisable within 60 days.
(16) Includes 197,500 shares of Class A common stock issuable upon
exercise of certain options that are exercisable within 60 days, and
excludes 27,500 shares issuable upon options that are not
exercisablewithin 60 days.
(17) No shares of Class A common stock issuable upon exercise of certain
options that are exercisable within 60 days, 31,106 shares of Class A
common stock outstanding, and excludes 100,000 shares issuable upon
options that are not exercisable within 60 days
(18) Includes 406,793 shares of Class A common stock outstanding. There
are no shares issuable upon options.
(19) No shares of Class A common stock issuable upon exercise of certain
options that are exercisable within 60 days, no shares of Class A
common stock are outstanding, and excludes 75,000 shares issuable
upon options that are not exercisable within 60 days.
(20) No shares of Class A common stock issuable upon exercise of certain
options that are exercisable within or past 60 days and no shares of
Class A common stock are outstanding.
(21) Includes 423,132 shares of Class A common stock outstanding and
354,995 shares of Class B common stock outstanding.
Stockholder Agreement; Voting Agreement
Anthony Malatino, the chairman of the board of the Company until December 12,
1995, and Robin Prever, the president, chief executive officer and a director
of the Company, entered into a voting trust agreement, dated August 17, 1992,
as amended in April 1993 (the "Stockholder Agreement"). This agreement expired
in 1998.
On October 13, 1998, Saratoga Beverage Group, Inc. ("Saratoga"), Steven Bogen
("Bogen"), Robin Prever ("Prever") and Anthony Malatino ("Malatino") entered in
a Stockholder Agreement in which it was agreed to vote all of their Saratoga
Securities to elect, re-elect and prevent any proposed removal of, Bogen as a
member of Saratoga's Board of Directors. This Stockholder Agreement shall
expire on the earlier of the date (i) after the Effective Date (as defined in
the Merger Agreement) that Bogen directly owns less than 400,000 shares of
Class A comn stock, (ii) of the termination of the Merger Agreement by any
party thereto pursuant to the terms thereof, (iii) Bogen is convicted of a
felony or a misdemeanor involving moral turpitude, dishonesty, theft or
unethical business conduct, or (iv) Bogen breaches his fiduciary duties, in a
material fashion, to Saratoga or its stockholders.
ITEM 12. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
At December 31, 1998, the Company's cash and cash equivalent balance includes
approximately $2,506,177 in a money market account with Dean Witter Reynolds,
Inc. A principal stockholder of the
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Company is an officer of Dean Witter Reynolds, Inc.
ITEM 13. EXHIBITS, FINANCIAL STATEMENTS AND REPORTS ON FORM 8-K
(a) The following documents are filed as a part of this report:
1. Financial Statements: See Index To Financial Statements
2. Exhibits included herein:
a) Exhibits and Index
Exhibit No.
2.1(1) (P) Agreement and Plan of Merger
3.1(1) (P) Restated Certificate of Incorporation of Saratoga
3.2(1) (P) By-Laws of Saratoga
3.3(10) Amendment to By-Laws of Saratoga
4.1(1) (P) Specimen of Class A Stock Certificate
5.1(12) Opinion of Swidler Berlin Shereff Friedman, LLP
9.1(11) Restated Voting, Standstill and Proxy Agreement dated as of
October 13, 1998
9.2(11) Stockholder Agreement dated October 13, 1998 by and among
Saratoga, Robin Prever, Anthony Malatino and Steven Bogen
10.1(2)+ (P) Employment Agreement entered into by the Registrant and
Robin Prever
10.2(1)+ (P) Form of the Saratoga Spring Water Company 1993 Stock Option
Plan
10.3(2)+ (P) Consulting Agreement entered into by Saratoga and Leonard
Toboroff
10.4(1) (P) Letter Agreement between Saratoga and Owens-Brockway Glass
Containers
10.5(2) (P) Partnership Agreement, dated July 21, 1993, by and between
JNJ Distributors, Inc. and Saratoga Springs Distribution Corp.,
as amended by Amendment of Partnership Agreement hereto dated
November 9, 1993
10.6(2) (P) Stock Agreement, dated July 21, 1993, by and between JNJ
Distributors, Inc. and Saratoga Spring Water Company
10.7(2) (P) Distribution Agreement, dated March 25, 1993, by and between
Joseph Victori Wines, Inc. and JNJ Distributors, Inc.
10.8(5) Termination Agreement dated as of January 31, 1997 between
Saratoga and Triarc
10.9(3) (P) Cott Co-pack Agreement dated as of June 8, 1995
10.10(4) Manufacturing and Distribution Agreement, dated as of July 23,
1996, by and between Saratoga and Mistic Brands, Inc.
10.11(6) Bottling Agreement, dated April 16, 1997, by and among Saratoga,
Hype Corporation, Hype Beverage Corporation, World Wide Beverage
Inc., Hype Water Company, Inc., Hyperholics Inc., R.J. Barry Cox
and Nigel Spiro
10.12(6)+ Line of Credit dated as of April 10, 1997 to Saratoga from Robin
Prever and Anthony Malatino
10.13(7) Saratoga Splash Agreement, dated as of June 30, 1997, by and
between Saratoga and Mistic Brands, Inc.
10.14(7) Master Distribution Agreement dated as of June 16, 1997 by and
among Saratoga Beverage
21
<PAGE>
Group, Inc., Hype Corporation, World Wide Beverage Inc., Global
Brands AG, Hype Water Company, Inc. and Hyperholics Inc.
10.15(8) Loan Agreement, Securities Purchase Agreement, Secured
Promissory Note, and Warrants for Messrs. Holliday, Merhi and
Barr in connection with the loan to Onyx Management Services,
LLC
10.16(9)+ Securities Purchase Agreement dated February 12, 1998 between
Saratoga and Carl T. Wolf
10.17(9)+ Stock Option Agreement dated February 25, 1998 between Saratoga
and Steel Partners II, L.P.
10.18(9)+ Securities Purchase Agreement dated February 25, 1998 between
Saratoga and Carl T. Wolf
10.19(9) Option Agreement dated March 16, 1998 between Saratoga and
Steven Smith
10.20(9) Letter agreement dated March 29, 1998 between Saratoga and The
Fresh Juice Company, Inc.
10.21(9)+ Amended and Restated Stock Option Agreement dated April 17, 1998
between Saratoga and Carl T. Wolf
10.22(9) Letter agreement dated April 24, 1998 between Saratoga and The
Fresh Juice Company, Inc.
10.23(11)+ Form of the Saratoga Beverage Group, Inc. 1998 Stock Option Plan
10.24(12) Commitment letter dated September 24, 1998 between Saratoga and
NationsBank, N.A.
10.25(11) Restated Agreement and Plan of Merger dated as of October 13,
1998 by and among Saratoga, Rowale Corp. and The Fresh Juice
Company, Inc.
10.26(11)+ Employment Agreement dated October 13, 1998 between Saratoga and
Jeffrey Heavirland
10.27(11) Letter agreement dated October 13, 1998 among Saratoga, Fresh
Juice and Steven Smith (amending the agreement set forth in
Exhibit 10.30 hereof)
10.28(12)+ Letter agreements dated December 2, 1998 among Saratoga, Fresh
Juice and Steven Bogen (amending the agreement set forth in
Exhibit 10.31 hereof)
10.29(12)+ Letter agreement dated December 2, 1998 among Saratoga, Fresh
Juice and Jeffrey Heavirland
10.30(12) Employment Agreement effective April 1, 1996 between The Fresh
Juice Company, Inc. and Steven Smith
10.31(12) Employment Agreement effective April 1, 1996 between The Fresh
Juice Company, Inc. and Steven M. Bogen
10.32(12) Supply Agreement dated March 31, 1996 between The Fresh Juice
Company, Inc. and Natural Juice Company, Inc.
10.33(12) Agreement of Lease dated November 24, 1997 between The Fresh
Juice Company of New York, Inc. and 280 Wilson Avenue
Associates, L.L.C. and guaranteed by The Fresh Juice Company,
Inc.
10.34(12) Industrial Real Estate Lease dated June 17, 1992 between
Hansen's Juices, Inc. and Pruco Life Insurance Company
21.1(11) Subsidiaries of Saratoga
25.1(13) Credit Agreement by and among Saratoga Beverage Group, Inc., as
Borrower, NationsBank, National Association, as Agent and Lender
and The Lenders Party Hereto from time to time dated January 29,
1999
25.2(13) Robin Prever Employment Agreement dated January 28, 1999
27.0(13) Financial Data Schedule
- -------------
(1) Incorporated herein by reference to Saratoga's Registration
Statement on Form SB-2 filed with the SEC on June 16, 1993
(Registration No. 33-62038NY).
(2) Incorporated herein by reference to Saratoga's Form 10-KSB filed
with the SEC on March 30, 1994.
(3) Incorporated herein by reference to Saratoga's Form 10-KSB filed
with the SEC on March 29, 1996.
(4) Incorporated herein by reference to Saratoga's Form 10-QSB filed
with the SEC on November 12, 1996.
(5) Incorporated herein by reference to Saratoga's Form 10-KSB filed
with the SEC on April 15, 1997.
(6) Incorporated herein by reference to Saratoga's Form 10-QSB filed
with the SEC on May 13, 1997.
22
<PAGE>
(7) Incorporated herein by reference to Saratoga's Form 10-QSB filed
with the SEC on August 8, 1997.
(8) Incorporated herein by reference to Saratoga's Form 10-KSB filed
with the SEC on March 20, 1998.
(9) Incorporated herein by reference to Saratoga's Form 10-QSB filed
with the SEC on May 11, 1998.
(10) Incorporated herein by reference to Saratoga's Form 10-QSB filed
with the SEC on August 5, 1998.
(11) Incorporated herein by reference to Saratoga's Form 10-QSB filed
with the SEC on November 5, 1998.
(12) Incorporated herein by reference to Saratoga's Registration
Statement on Form S-4 filed with the SEC on December 24, 1998
(Registration No. 33-369707)
(13) Filed herewith
(+) Management agreement.
(P) Paper filing.
(b) Reports on From 8-K: Form 8-K was filed on October 23, 1998 to disclose the
Restated Agreement and Plan of Merger dated as of October 13, 1998 among
Saratoga Beverage Group, Inc., Rowale Corp. and The Fresh Juice Company, Inc.
23
<PAGE>
SIGNATURES
In accordance with Section 13 or 15(d) of the Securities Exchange Act of 1934,
the registrant caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
Dated: March 30, 1999
By: /s/ Robin Prever
------------------------------------------
Robin Prever, President
By: /s/ Gayle Henderson
------------------------------------------
Gayle Henderson, Chief Financial Officer
In accordance with the requirements of the Securities Exchange Act of 1934,
this report has been signed by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
Signature Capacities Date
--------- ---------- ----
President, Chief Executive Officer,
/s/ Robin Prever And Co-Chairman of the Board of Directors
- ----------------------------
Robin Prever
/s/ Adam Madkour Chief Operating Officer
- ----------------------------
Adam Madkour
/s/ Gayle Henderson Chief Financial Officer
- ----------------------------
Gayle Henderson
/s/ Jeffrey Heavirland Executive Vice President
Jeffrey Heavirland
/s/ Leonard Toboroff Director
- ----------------------------
Leonard Toboroff
/s/ Warren Lichtenstein Director
- ----------------------------
Warren Lichtenstein
/s/ Steven Bogen Director
- ----------------------------
Steven Bogen
/s/ R. J. Barry Cox Director
- ----------------------------
R. J. Barry Cox
24
<PAGE>
ITEM 13. INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
Page
Report of Independent Accountants..................................... F-2
Consolidated balance sheets as of December 31, 1998 and
1997.................................................................. F-3
Consolidated income statements for the years
ended December 31, 1998 and 1997...................................... F-4
Consolidated statements of stockholders' equity
for the years ended December 31, 1998 and 1997........................ F-5
Consolidated statements of cash flows for the years
ended December 31, 1998 and 1997...................................... F-6
Notes to consolidated financial statements ........................... F-7
F-1
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and Stockholders
Saratoga Beverage Group, Inc. and Subsidiary
In our opinion, the accompanying consolidated balance sheets and the related
consolidated statements of income, stockholders' equity and of cash flows
present fairly, in all material respects, the financial position of Saratoga
Beverage Group Inc. and Subsidiary at December 31, 1998 and 1997, and the
results of their operations and their cash flows for each of the two years in
the period ended December 31, 1998, in conformity with generally accepted
accounting principles. These financial statements are the responsibility of the
Company's management; our responsibility is to express an opinion on these
financial statements based on our audits. We conducted our audits of these
statements in accordance with generally accepted auditing standards which
require that we plan and perform the audit to obtain reasonable assurance about
whether the financial statements are free of material misstatement. An audit
includes examining, on a test basis, evidence supporting the amounts and
disclosures in the financial statements, assessing the accounting principles
used and significant estimates made by management, and evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for the opinion expressed above.
PricewaterhouseCoopers LLP
Albany, New York
February 26, 1999
F-2
<PAGE>
SARATOGA BEVERAGE GROUP, INC.
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
DECEMBER 31, DECEMBER 31,
1998 1997
----------- -----------
<S> <C> <C>
ASSETS
Current Assets:
Cash and cash equivalents $ 2,576,873 $ 1,567,973
Short term investments 1,153,915
Accounts receivable, net of allowance for doubtful
accounts of $12,955 in 1998 and $150,695 in 1997 874,821 689,774
Inventories 473,265 360,670
Prepaid expenses and other current assets 32,471 29,993
----------- -----------
Total current assets 3,957,430 3,802,325
Property, plant and equipment, net 1,501,953 1,501,030
Deferred financing costs, net 911,607 83,415
Note receivable, net of allowance of $400,000 in 1998 -- 300,000
Deferred acquisition costs 762,890 --
Other assets, net 365,339 18,049
----------- -----------
TOTAL ASSETS $ 7,499,219 $ 5,704,819
=========== ===========
LIABILITIES AND STOCKHOLDERS' EQUITY Current Liabilities:
Accounts payable and accrued liabilities $ 1,539,060 $ 1,282,889
Current portion of obligation under capital lease and note 15,533 6,698
----------- -----------
Total current liabilities 1,554,593 1,289,587
Obligation under capital lease and note 54,556 1,208
5% subordinated convertible note 1,500,000 1,500,000
----------- -----------
TOTAL LIABILITIES 3,109,149 2,790,795
----------- -----------
Commitments and contingencies
Stockholders' Equity:
Preferred stock, $.01 par value; 5,000,000 shares authorized,
no shares issued and outstanding
Class A common stock, $.01 par value; 50,000,000 shares
authorized; and 2,676,139 and 2,407,039 shares issued in
1998 and 1997, respectively 26,761 24,070
Class B convertible common stock, $.01 par value;
2,000,000 shares authorized; 522,955 and 562,055 shares
issued and outstanding in 1998 and 1997, respectively 5,230 5,621
Paid-in capital 9,953,522 9,346,922
Accumulated deficit (5,595,443) (6,462,589)
----------- -----------
TOTAL STOCKHOLDERS' EQUITY 4,390,070 2,914,024
----------- -----------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $ 7,499,219 $ 5,704,819
=========== ===========
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
F-3
<PAGE>
SARATOGA BEVERAGE GROUP, INC.
CONSOLIDATED INCOME STATEMENTS
<TABLE>
<CAPTION>
YEAR ENDED YEAR ENDED
DECEMBER 31, 1998 DECEMBER 31, 1997
<S> <C> <C>
Total Revenue $ 8,881,242 $ 6,270,691
Cost of Goods Sold, exclusive of depreciation,
amortization, and equipment lease
expense shown separately below 5,522,934 3,762,549
----------- -----------
Gross Profit 3,358,308 2,508,142
----------- -----------
Operating Expenses:
Marketing and sales 764,723 388,709
General and administration 935,084 1,033,850
Depreciation and amortization 435,564 393,876
Equipment lease expense 130,753 11,050
----------- -----------
2,266,124 1,827,545
----------- -----------
Operating Income 1,092,184 680,597
Other Income (Expense):
Commission income 103,538 126,735
Interest income 169,331 52,259
Interest expense (80,307) (47,004)
Provision for loss on note receivable (400,000) 0
----------- -----------
Other Income (Expense), net (207,438) 131,990
----------- -----------
Income before income taxes 884,746 812,587
Provision for income taxes 17,600 7,959
----------- -----------
Net Income $ 867,146 $ 804,628
=========== ===========
Per Share Information:
Basic earnings per share $0.27 $0.28
Diluted earnings per share $0.26 $0.25
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
F-4
<PAGE>
SARATOGA BEVERAGE GROUP, INC.
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
<TABLE>
<CAPTION>
CLASS A CLASS B PAR PAID-IN ACCUMULATED TREASURY
SHARES SHARES VALUES CAPITAL DEFICIT STOCK TOTAL
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Balance, December 31, 1996 1,691,224 1,036,036 $27,273 $9,258,405 $(7,267,217) $(3,990) $2,014,471
Conversion of Class B into
Class A common stock 473,981 (473,981)
Issuance of treasury stock 3,990 3,990
Exercise of stock options 41,834 418 75,083 75,501
Issuance of stock warrant 22,800 22,800
Exercise of stock warrants 300,000 3,000 3,000
Forfeiture and cancellation
of escrowed shares (100,000) (1,000) (1,000)
Distribution to minority interest (9,366) (9,366)
Net Income 804,628 804,628
----------- ----------- --------- ------------ ------------- ---------- ------------
Balance, December 31, 1997 2,407,039 562,055 29,691 9,346,922 (6,462,589) - 2,914,024
Conversion of Class B into
Class A common stock 39,100 (39,100)
Purchase of treasury stock (499,500) (499,500)
Retirement of treasury stock (250,000) (2,500) (497,000) 499,500
Exercise of stock options 30,000 300 37,200 37,500
Issuance of Class A shares 450,000 4,500 1,008,000 1,012,500
Issuance of stock options in
connection with acquisition 58,400 58,400
Net Income 867,146 867,146
----------- ----------- --------- ------------ ------------- ---------- ------------
Balance, December 31, 1998 2,676,139 522,955 $31,991 $9,953,522 $(5,595,443) $- $4,390,070
=========== =========== ========= ============ ============= ========== ============
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
F-5
<PAGE>
SARATOGA BEVERAGE GROUP, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
----------------- -----------------
YEAR ENDED YEAR ENDED
DECEMBER 31, 1998 DECEMBER 31, 1997
----------------- -----------------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net Income $ 867,146 $ 804,628
Adjustments to reconcile net income to
net cash provided by operating
activities:
Depreciation and amortization 435,564 393,876
Provision for loss on note receivable 400,000
Provision for doubtful accounts (47,971) 56,874
Changes in operating assets and liabilities:
Accounts receivable (137,076) (348,453)
Inventories (112,595) (177,598)
Prepaid expenses and other current assets (2,478) (4,566)
Accounts payable and accrued liabilities (737,126) 981,222
----------- -----------
Net cash provided by operating activities 665,464 1,705,983
----------- -----------
CASH FLOWS FROM INVESTING ACTIVITIES
Sale (purchase) of short term investments 1,153,915 (1,153,915)
Issuance of note receivable (100,000) (300,000)
Purchase of property, plant and equipment (328,350) (255,419)
Deferred acquisition costs (126,452)
Increase in other assets (347,290) (3,145)
----------- -----------
Net cash provided by (used in) investing activities 251,823 (1,712,479)
----------- -----------
CASH FLOWS FROM FINANCING ACTIVITIES
Proceeds from long-term borrowing 1,500,000
Payment of deferred financing costs (448,000) (80,750)
Principal payments on revolving credit facility (300,000)
Principal payments on capital lease obligations 10,887 (5,844)
Proceeds from issuance of common stock 1,012,500
Proceeds from exercise of stock warrants 3,000
Proceeds from the exercise of stock options 37,500 75,501
Issuance (purchase) of treasury stock (499,500) 3,990
Distribution to minority interest (9,366)
----------- -----------
Net cash provided by financing activities 91,613 1,186,531
----------- -----------
Increase in cash and cash equivalents 1,008,900 1,180,035
Cash and cash equivalents at beginning of period 1,567,973 387,938
----------- -----------
Cash and cash equivalents at end of period $ 2,576,873 $ 1,567,973
=========== ===========
SUPPLEMENTAL DISCLOSURE OF CASH
FLOW INFORMATION
Income taxes paid $ 29,161 $ 3,750
=========== ===========
Interest paid $ 77,380 $ 4,873
=========== ===========
SUPPLEMENTAL DISCLOSURE OF NONCASH INVESTING AND
FINANCING ACTIVITIES
Acquisition of equipment under capital lease and note $ 73,070 $ 0
=========== ===========
Stock options issued in connection with acquisition $ 58,400 $ 0
=========== ===========
Accrued acquisition and financing costs $ 993,297 $ 0
=========== ===========
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
F-6
<PAGE>
SARATOGA BEVERAGE GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. SIGNIFICANT ACCOUNTING POLICIES
COMPANY'S ACTIVITY:
Saratoga Beverage Group, Inc. (the "Company") is primarily engaged in the
bottling, marketing, and distribution of natural spring water and in packaging
products for others ("co-packing"). The Company distributes product primarily
on the east coast of the United States.
The 1998 financial statements include the Company and its wholly-owned
subsidiary, Rowale Corp. which was incorporated in the State of Delaware on
March 2, 1998. The 1997 financial statements include the Company and its
wholly-owned subsidiary, Saratoga Springs Distribution Corporation which was
dissolved in July 1997. All significant inter-company balances and transactions
have been eliminated.
USE OF ESTIMATES:
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions
that affect the reported amounts of assets and liabilities, disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenue and expenses during the reporting period.
Actual results could differ from those estimates.
REVENUE RECOGNITION:
Revenue is recognized upon shipment of merchandise to a customer for Saratoga
product and upon completion of production for co-packed product.
CASH EQUIVALENTS:
The Company considers all investments with original maturities of three months
or less to be cash equivalents. Cash equivalents includes investments in money
market funds. These investments are stated at cost, which approximate market
value.
SHORT TERM INVESTMENTS:
Short term investments consist of U.S. Treasury bills and are recorded at fair
value.
INVENTORIES:
Inventories are stated at the lower of cost or market with cost being
determined by the first-in, first-out method.
PROPERTY, PLANT, EQUIPMENT AND INTANGIBLE ASSETS:
Property, plant, equipment and intangible assets are carried at cost less
allowances for accumulated depreciation and amortization. The cost of
properties held under capital leases are equal to the lower of the net present
value of the minimum lease payments or the fair market value of the leased
property at the inception of the lease. Significant additions or improvements
extending the assets' useful lives are capitalized. Normal maintenance and
repair costs are expensed as incurred. When assets are sold, retired, or
otherwise disposed of, the applicable costs and accumulated depreciation are
removed from the accounts and resulting gain or loss is recognized.
Depreciation is computed by the straight-line method at rates based upon the
estimated service life of the various classes of assets (7 to 32 years).
Trademark costs are included in the caption "Other assets." These costs are
amortized over 15 years on the straight-line basis. Deferred financing costs
related to the 5% subordinated convertible note are amortized over three years,
the life of the Note.
F-7
<PAGE>
Also included in deferred financing costs at December 31, 1998 are costs
associated with the acquisition of The Fresh Juice Company, Inc. (see note 12).
When intangible assets become fully amortized, the applicable costs and
accumulated amortization are removed from the accounts. Also included in other
assets is the cost of acquiring shares of Fresh Juice stock by the Company's
wholly-owned subsidiary, Rowale Corp.
The Company evaluates impairment of intangible and long lived assets whenever
circumstances indicate that the carrying amount of an asset may not be
recoverable. An impairment loss is recognized when the carrying amount of the
assets exceeds its fair value.
INCOME TAXES:
The Company accounts for income taxes according to Financial Accounting
Standard No. 109 (FAS 109). The Standard requires the use of the asset and
liability method of accounting for income taxes. Under this method, deferred
taxes are recognized for the tax consequences of temporary differences by
applying enacted statutory tax rates applicable to future years for the
differences between the financial statement and tax basis of existing assets
and liabilities.
In the year ended December 31, 1998, the Company offset substantially all
income taxes through the use of federal income tax loss carryforwards. At
December 31, 1998 and 1997 the Company has available approximately $2,774,730
and $3,781,000 respectively of federal income tax loss carryforwards which may
be subject to annual limitations on their usage and begin to expire in the year
2008. A tax benefit has not been recognized because a valuation allowance has
been recorded for the entire amount of the deferred tax asset related to the
net operating loss carryforwards.
PER SHARE DATA:
Effective December 31, 1997, the Company implemented Financial Accounting
Standard No. 128 (FAS 128) "Earnings Per Share". In accordance with this
Standard, net income/(loss) per share is computed using the weighted average
number of shares of Class A and Class B common stock outstanding during each
year. Diluted net income(loss) per share includes the effect of all potentially
dilutive securities. Earnings per share amounts for all periods presented have
been computed in accordance with this Standard.
STOCK-BASED COMPENSATION:
Under the provisions of Statement of Financial Accounting Standards No. 123
("SFAS 123"), "Accounting for Stock-Based Compensation", companies can elect to
account for stock-based compensation plans using a fair-value based method or
continue measuring compensation expense for those plans using the intrinsic
value method prescribed in the Accounting Principles Board Opinion No. 25
"Accounting for Stock Issued to Employees" (APB 25) and related
interpretations. The Company elected to continue using the intrinsic value
method to account for its stock-based compensation plans. SFAS 123 requires
companies electing to continue using the intrinsic value method to make certain
pro forma disclosures (Note 13).
RECLASSIFICATION:
Certain 1997 amounts have been reclassified to conform with the 1998
presentation.
F-8
<PAGE>
NEW ACCOUNTING STANDARDS:
The Financial Accounting Standards Board has issued Statement of Financial
Accounting Standard No. 130, Reporting Comprehensive Income. This standard
requires companies to disclose certain information regarding comprehensive
income and its components (revenues, expenses, gains, and losses) and is
required to first be disclosed in annual financial statements for fiscal years
beginning after December 15, 1997. The Company requires no additional
disclosure under this standard for the year ended December 31, 1998.
The Financial Accounting Standards Board has issued Statement of Financial
Accounting Standard No. 131, Disclosures about Segments of an Enterprise and
Related Information. This standard requires companies to disclose certain
information regarding operating segments in interim and annual financial
statements, and is required to first be disclosed in annual financial
statements for fiscal years beginning after December 15, 1997. The Company
requires no additional disclosure under this standard for the year ended
December 31, 1998 because management operates the business as one segment, the
bottling and sales of water to third parties. Management has not yet determined
the extent of additional disclosure required in 1999 from the acquisition of
The Fresh Juice Company, Inc.
The Financial Accounting Standards Board has also issued Statement of Financial
Accounting Standard No. 133, Accounting for Derivative Instruments and Hedging
Activities. The standard establishes accounting and reporting standards for
derivative instruments and for hedging activities. It requires that a company
recognize derivatives as assets or liabilities measured at fair value. This
standard is effective for all fiscal quarters of fiscal years beginning after
June 15, 1999. Management has not yet determined the impact of adoption of this
accounting standard.
F-9
<PAGE>
2. EARNINGS PER SHARE
The calculation of earnings per share is as follows:
1998 1997
---- ----
Numerator
Net income (loss) $867,146 Basic $804,628 Basic
Impact of potential common shares:
Interest expense on 5%
subordinated convertible
note 75,000 41,485
-------- --------
$942,146 Diluted $846,086 Diluted
======== ========
Denominator
Weighted-average
outstanding shares 3,166,327 Basic 2,924,589 Basic
Impact of potential common shares:
Stock options 74,282 27,280
Convertible debt 428,571 428,571
--------- ---------
3,669,180 Diluted 3,380,440 Diluted
========= =========
Outstanding warrants and options for 230,158 and 440,358 shares of stock in
1998 and 1997 respectively were not included in the calculation of earnings per
share because they were considered to be anti-dilutive. Additionally, the
Company issued 2,133,553 shares of Class A common stock in connection with its
acquisition of Fresh Juice in January, 1999 which are not included in this
calculation.
3. INVENTORIES
Inventories consist of the following:
1998 1997
---- ----
Raw Materials $152,459 $115,863
Finished Goods 320,806 244,807
--------- ---------
Total Inventories $473,265 $360,670
========= =========
F-10
<PAGE>
4. PROPERTY, PLANT, AND EQUIPMENT
Balances of major classes of assets and allowances for depreciation and
amortization, are as follows:
1998 1997
---- ----
Land $303,892 $303,892
Building 718,265 493,221
Machinery & equipment 2,340,635 2,153,555
Computer equipment 71,946 60,586
Furniture & fixtures 121,198 107,249
Equipment under capital lease 62,814 18,974
Construction in progress 3,717 83,570
------------ ------------
3,622,467 3,221,047
Less:
Accumulated depreciation (2,110,450) (1,715,273)
Accumulated amortization
equipment under capital lease (10,064) (4,744)
------------ ------------
$1,501,953 $1,501,030
============ ============
Depreciation and amortization expense on property, plant and equipment for the
years ended December 31, 1998 and 1997 was $400,497 and $372,786 respectively.
5. NOTE RECEIVABLE
On December 23, 1997 the Company and Onyx Management Services, LLC ("Onyx")
entered into a loan agreement whereby the Company agreed to loan Onyx a maximum
of $800,000 (the "Loan") for working capital and general business purposes. As
of December 31, 1998 the Company had loaned and advanced to Onyx a sum of
$400,000. The Onyx loan is collateralized by all assets of Onyx.
Interest on the principal amount of the note at a per annum rate equal to the
greater of (i) eight percent (8%) or (ii) the Prime Rate plus one percent (1%)
as in effect on the first day of the calendar quarter for which such interest
shall accrue is payable in arrears quarterly on the first day of each calendar
quarter, beginning on April 1, 1998. At December 31, 1998, the interest rate
was 9.25%.
$300,000 of the principal amount outstanding under the Onyx note shall become
due and payable in full on December 23, 2001 and the remaining unpaid principal
amount outstanding under the Onyx note shall be come due and payable in full on
December 23, 2000. In addition, the Company has a ten year warrant to purchase
35% of outstanding stock of Onyx for 100,000 shares of the Company's Class A
common stock.
At December 31, 1998 the Company recorded an allowance of $400,000 for the Onyx
note receivable. Interest receivable from Onyx in the amount of $9,250 for the
1998 December quarter has not been paid to the Company as of March 15, 1999 and
the Company has declared a default under the Onyx Note. The Company will
continue to monitor the note receivable and to pursue collection of the Onyx
note receivable.
6. INDEBTEDNESS
The Company entered into a Securities Purchase Agreement with Parley
International, as nominee for Maerki Baumann & Co., A.G. (Zurich)
("Purchaser"), pursuant to which Purchaser acquired $1,500,000 principal amount
of the Company's 5% Subordinated Convertible Notes due 2000 (the "Note") for an
F-11
<PAGE>
aggregate purchase price of $1,500,000 in a private placement effected under
Section 4(2) of the Securities Act of 1933. Interest becomes due and payable on
each of the first, second and third anniversaries.
The principal amount of the Note is due and payable on the third anniversary of
the Note and is convertible at the option of the holder into shares of the
Company's Class A common stock at a conversion price of $3.50 principal amount
per share. The Note is mandatorily convertible into shares of Class A common
stock in the event that the closing price of Class A common stock exceeds $5.25
for three consecutive trading days.
Global Financial Group, Inc. acted as placement agent in connection with the
offering of the Note and, in connection therewith, received a cash commission
in the amount of $80,750 and was issued a warrant to acquire 30,000 shares of
Class A common stock for an exercise price of $3.50 per share. The warrant was
determined to have a fair value of $22,800, using the Black Scholes Valuation
method. The financing costs are amortized over the life of the Note, three
years.
On January 31, 1997, the Company and Triarc Companies, Inc. ("Triarc")
terminated their credit agreement. As consideration for terminating the
agreement and canceling certain warrants, Saratoga paid the $300,000
outstanding principal balance on the revolving credit facility plus accrued
interest through January 30, 1997 and issued 300,000 shares of Class A common
stock to Triarc for $0.01 per share.
7. COMMITMENTS AND CONTINGENCIES
Future minimum rental commitments under capital leases and non-cancelable
operating leases at December 31, 1998 are:
Year Ended Operating Leases Capital Leases
---------- ---------------- --------------
1999 $130,754 $11,870
2000 130,754 10,641
2001 130,754 10,641
2002 130,754 10,641
2003 130,754 5,764
Thereafter 119,858
-------------------------------------
$773,628 49,557
================
Less
Implicit Interest (8,172)
-------------
$41,385
=============
Rental expense for the years ended December 31, 1998 and December 31, 1997 was
$130,754 and $17,223, respectively.
In June 1993, the Company entered into an employment agreement with its
president and chief executive officer providing for annual compensation of
$125,000. The agreement provided for payment of an annual bonus at the sole
discretion of the Board of Directors, with a minimum bonus each year equal to
5% of the Company's pre-tax profit in each contract year. On January 28, 1999,
the Company entered into a new four year employment agreement with its
president, chief executive officer and chairperson of the Board (and a
director), providing for annual compensation of $200,000. The compensation
committee of the Company Board shall set goals on an annual basis for the
Executive's performance as an officer of the Company, and shall cause the
Company to pay to an annual bonus in addition to the Salary based on the
achievement by the Executive of such goals. Non-qualified stock options to
purchase 300,000 shares of Class A common stock were issued at a price of
$2.438 per share as part of this agreement and shall vest over a three year
period from the date of grant at a rate of 33% per year, commencing with the
first anniversary of the date of grant. Executive's vested stock options shall
be exercisable for a period of ten (10) years from the date of issuance.
F-12
<PAGE>
8. RELATED PARTY TRANSACTIONS
At December 31, 1998 and 1997, the Company's cash and cash equivalent balance
includes approximately $2,506,177 and $2,487,000 respectively in a money market
account and short term investments with Dean Witter Reynolds, Inc. A principal
stockholder of the Company is an officer of Dean Witter Reynolds, Inc.
9. PREFERRED STOCK
The Company's Restated Certificate of Incorporation authorizes the issuance of
5,000,000 shares of preferred stock with such designations, rights, and
preferences as may be determined from time to time by the Board of Directors
without further stockholder action. The terms of any series of preferred stock
may include priority claims to assets and dividends and voting or other rights.
No preferred shares have been issued.
10. COMMON STOCK
The Class A common stock and the Class B common stock are identical, except
that the holder of each share of Class A common stock is entitled to one vote,
and the holder of each share of Class B common stock is entitled to five votes
on each matter submitted to stockholder vote. Each share of Class B common
stock is convertible at any time at the option of the holder into one share of
Class A common stock. Subject to certain limited exceptions, each share of
Class B common stock will automatically be converted into one share of Class A
common stock upon any sale or transfer thereof or upon the death of the Class B
common stockholder. At December 31, 1998, 522,955 shares of class A common
stock are reserved for issuance upon conversion of Class B shares.
11. STOCK OPTIONS AND WARRANTS
In June 1993, the Board of Directors of the Company approved the adoption of
the Saratoga Spring Water Company 1993 Stock Option Plan (the "1993 Stock
Option Plan"). The 1993 Stock Option Plan provided for the issuance of options
covering up to 466,000 shares of Class A common stock (subject to adjustments
in the event of stock splits, stock dividends and similar dilutive events) and
Stock Appreciation Rights in tandem with options. Generally, Stock Appreciation
Rights will be subject to the same terms and conditions as options. Options may
be granted under the 1993 Stock Option Plan to employees, officers or directors
of, and consultants and advisors to the Company.
On December 12, 1995 the shareholders of the Company approved an amendment to
the 1993 Stock Option Plan increasing the number of shares available for
issuance from 466,000 to 616,000.
Options granted to employees may either be incentive stock options (as defined
in the Internal Revenue Code of 1986, as amended) or non qualified stock
options. The purchase price of the Class A common stock made subject to an
option shall be determined by the Compensation Committee at the time of grant,
provided that the purchase price of incentive stock options may not be less
than the fair market value of the Company's Class A common stock on the date of
grant. Subject to the foregoing, the terms of each option and the increments in
which it is exercisable are determined by the Compensation Committee, provided
that no option may be exercised after ten years and one day from the date of
grant (ten years in the case of an incentive stock option). To the extent that
the aggregate fair market value, as of the date of grant, of the shares for
which incentive stock options become exercisable for the first time by an
optionee during any calendar year exceeds $100,000, the portion of such option
which is in excess of the $100,000 limitation will be treated as a non
qualified stock option. In addition, if an optionee owns more than 10% of the
total voting power of all classes of the Company's stock at the time the
individual is granted an incentive stock option, the purchase price per share
cannot be less than 110% of the fair market value on the date of grant and the
term of the incentive stock option cannot exceed five years from the date of
grant. Generally, options vest over a three year period unless the Compensation
Committee accelerates such provisions.
F-13
<PAGE>
Furthermore, under the 1993 Stock Option Plan, directors who are not also
employees of the Company receive an Option ("Initial Option") to purchase 2,000
shares of Class A common stock upon their initial election to the Board of
Directors, exercisable at the fair market value on the date of grant. On June
23, 1993, each person who was then a non-employee director received 2,000
options ("IPO Options"), at an exercise price of $5.00 per share. These options
are exercisable as to 33 1/3% of the shares subject thereto on the date of
grant, and as to 33 1/3% on each of the following two anniversaries of such
date of grant. In addition, on the date of each annual meeting of stockholders
held subsequent to January 1, 1994, each qualified director will automatically
receive options ("Annual Options") to purchase 2,000 shares of Class A common
stock exercisable 50% per year over a period of two years beginning on the date
of grant, at the fair market value of the Class A common stock on the date of
grant. The Company intends to seek stockholder approval at the 1999 annual
meeting of stockholders to retroactively, as of June 29, 1998, terminate this
provision of the 1993 Stock Option Plan, given the approval of the 1998 Stock
Option Plan (as hereinafter defined).
Generally, options granted to directors under the 1993 Stock Option Plan will
terminate three months after the date of the director's termination,
resignation or retirement from the Board of Directors of the Company, but in no
event after the option has expired by its terms. If any option granted under
the 1993 Stock Option Plan should expire or become unexercisable for any reason
without having been exercised in full, the unpurchased shares will become
available for further grant under the Stock Option Plan.
At the annual meeting of stockholders held on October 28, 1998 the Saratoga
Beverage Group, Inc. 1998 Stock Option Plan (the "1998 Stock Option Plan") was
approved. The 1998 Stock Option Plan provides for the issuance of options
covering up to 900,000 shares of Class A Common Stock or Class B Common Stock
(collectively "Shares") (subject to adjustments in the event of stock splits,
stock dividends and similar dilutive events). Options may be granted under the
1998 Stock Option Plan to employees, officers or directors of the Company. The
1998 Stock Option Plan will be administered by the Stock Option Committee of
the Board (the "Committee").
Options granted to employees may either be incentive stock options (as defined
in the Internal Revenue Code of 1986, as amended) ("ISOs") or non-qualified
stock options ("NQSOs"). The purchase price of the Shares made subject to an
option shall be determined by the Stock Option Committee at the time of grant,
provided that the purchase price of incentive stock options may not be, and the
price of non-qualified options generally will not be, less than the fair market
value of the Class A Common Stock on the date of grant. Subject to the
foregoing, the terms of each option and the increments in which it is
exercisable are determined by the Stock Option Committee, which will generally
provide that no option may be exercised after ten years from the date of grant.
If an optionee owns more than 10% of the total voting power of all classes of
the Company's stock at the time the individual is granted an ISO, the purchase
price per share cannot be less than 110% of the fair market value on the date
of grant and the term of the ISO cannot exceed five years from the date of
grant.
Non-employee directors and key employees (defined as full-time employees) of
the Company or any future Subsidiary Corporation (as defined in the 1998 Stock
Option Plan) of the Company are eligible to participate in the 1998 Stock
Option Plan; provided, however, that ISOs may only be granted to employees of
the Company or a Subsidiary Corporation. Each non-employee director of the
Company on January 1 of a year during the term of the 1998 Stock Option Plan
will automatically receive options to purchase 5,000 shares of
F-14
<PAGE>
Class A common stock at the fair market value of the Class A common stock on
the date of grant.
Any one optionee may not be granted options to purchase in excess of 300,000
shares of Common Stock during any fiscal year of the Company; provided,
however, that the Committee may adopt procedures for the counting of shares
relating to any grant of options to ensure appropriate counting, avoid double
counting and provide for adjustments in any case in which the number of shares
actually distributed differs from the number of shares previously counted in
connection with such grant; provided further, however, that the options granted
under the 1993 Plan shall not be treated as outstanding.
F-15
<PAGE>
The following relates to stock options outstanding at December 31, 1998:
<TABLE>
<CAPTION>
OUTSTANDING EXERCISABLE
--------------------------------------------------------------------------------------
WEIGHTED WEIGHTED
WEIGHTED AVERAGE AVERAGE
EXERCISE NUMBER OF AVERAGE LIFE EXERCISE NUMBER OF EXERCISE
PRICE RANGE SHARES (A) PRICE SHARES PRICE
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
$0.94 -- 2.50 367,062 7.6 $2.23 201,062 $2.24
$2.51 -- 5.00 209,158 6.9 3.19 204,158 3.21
$7.51 -- 10.00 1,000 4.9 8.75 1,000 8.75
----- -----
Total 577,220 7.4 2.59 406,220 2.74
======= =======
</TABLE>
(a) Average remaining contractual life in years.
The following activity occurred during 1998 and 1997 with respect to options
granted under the stock option plans:
<TABLE>
<CAPTION>
1998 1997
--------------------------------- -----------------------------------
WEIGHTED-AVERAGE WEIGHTED-AVERAGE
SHARES EXERCISE PRICE SHARES EXERCISE PRICE
-------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Outstanding on January 1 359,839 $5.02 444,006 $4.32
Granted at fair value 437,501 2.37 15,423 2.59
Exercised 30,000 1.25 41,834 1.78
Expired 190,120 6.74 57,756 1.29
----------- -------
Outstanding on December 31 577,220 2.59 359,839 5.02
=======
===========
Exercisable on December 31 406,220 2.74 349,791 5.09
=========== =======
</TABLE>
Shares available for grant were 853,436 and 200,817 at December 31, 1998 and
December 31, 1997, respectively.
The Company applies APB Opinion No. 25 and related interpretations in
accounting for the stock option plans. Accordingly, no compensation expense has
been recognized for employee option grants. Non-employee option grants of
30,000 options with an estimated fair value of $58,400 have been included in
deferred acquisition costs and will be included in the determination of the
purchase price of Fresh Juice. Had compensation cost for the stock option plans
been determined based on the fair value at the grant dates, for awards under
the plan, the Company's net income and net income per share would have been
reduced as follows:
YEAR ENDED DECEMBER 31 1998 1997
- ------------------------------------------------------------------------------
Net income (loss)
As reported $867,146 $804,628
Pro forma $465,148 $781,970
Earnings per share
Basic EPS as reported $0.27 $0.28
Diluted EPS as reported $0.26 $0.25
Pro forma Basic EPS $0.15 $0.27
Pro forma Diluted EPS $0.13 $0.24
F-16
<PAGE>
The fair value of each option grant is estimated on the date of grant using the
Black-Scholes Option - pricing model with the following weighted average
assumptions used for grants in 1998 and 1997, respectively; dividend yields of
0 percent for both years; expected volatility of 88.9 percent for 1998 and
103.0 percent for 1997; risk-free interest rates of 5.6 and 6.0 percent for
1998 and 1997 respectively; and expected lives of five years for both years.
The weighted-average fair value of options granted was $2.36 and $2.59 for the
years ended December 31, 1998 and 1997, respectively. The impact of SFAS No.
123 may not be representative of the effect on future years because options
vest over several years and additional option grants may be made each year.
In connection with the Company's initial public offering, the Company's
underwriter, D.H. Blair Investment Banking Corp. received a total of 120,000
common stock purchase warrants exercisable over four years, commencing one year
after the effective date of the public offering. These warrants expired June
22, 1998.
12. EMPLOYEE BENEFIT PLAN
On April 1, 1998 the Company adopted a 401(k) Profit Sharing Plan which
provides for an employee salary deferral contribution and Company
contributions. Employees are permitted to contribute a percentage of their
compensation as defined by the Plan Documents. The Company contributes for each
participant a matching contribution equal to 50% of the participant's "eligible
contributions." The Company may or may not contribute an additional amount of
matching contributions determined by the Company at its discretion. Total
Company contributions for 1998 were $11,691.
13. FAIR VALUE OF FINANCIAL INSTRUMENTS
The following methods and assumptions were used to estimate the fair value of
each class of financial instruments for which it is practicable to estimate
that value.
CASH, CASH EQUIVALENTS, AND SHORT TERM INVESTMENTS:
The carrying amount of cash and cash equivalents at December 31, 1998 and 1997
was $2,576,873 and $1,567,973, respectively, which approximates fair value
because of the short maturity of those financial instruments. The short-term
investments of $1,153,915 at December 31, 1997 included two United States
Treasury Bills due May 21, 1998 and November 12, 1998 with a yield to maturity
of 5.3770%.
DEBT:
The carrying amount of short-term debt, including capital lease obligations, at
December 31, 1998 and 1997 was $15,533 and $6,698 respectively, which
approximates fair value. The carrying amount of long-term debt at December 31,
1998 and 1997 was $1,554,556 and $1,501,208 respectively which approximate fair
value. The fair value of these financial instruments was based on the Company's
current borrowing rates for similar types of borrowing arrangements.
14. CONCENTRATION OF CREDIT RISK
Financial instruments which potentially subject the Company to concentrations
of credit risk consist principally of cash and trade receivables. At December
31, 1998 and 1997, approximately $2,506,122 and $113,000 of cash was on deposit
at financial institutions in excess of Federal deposit insurance limits.
Revenue from the Company's largest distributor, for the years ended December
31, 1998 and 1997 was 20% and 15% of total revenues, respectively. For the
years ended December 31, 1998 and 1997 32% and 36% of total revenues were
generated from co-packing. One co-packing customer represents 19% and
F-17
<PAGE>
22% of total revenue for the years ended December 31, 1998 and 1997,
respectively.
In June 1997, the Company entered into a three-year master distribution
agreement whereby the Company was granted the exclusive right and license to
act as the master distributor of certain products in the United States until
June 2000. The Company receives a minimum commission of $1.00 per case for each
case of products sold. The Company is responsible for collecting the
receivables from customers and remitting payments to vendors. At December 31,
1998 $155,494 was included in accounts receivable and $115,423 in accounts
payable and accrued liabilities, related to this agreement.
15. ACQUISITION OF THE FRESH JUICE COMPANY, INC. (Unaudited)
On January 29, 1999, the Company acquired The Fresh Juice Company, Inc. ("Fresh
Juice"). Fresh Juice produces, markets and sells fresh squeezed and frozen
fresh squeezed orange juice, grapefruit juice, fresh fruit smoothies and other
non-carbonated beverages nationally under the brand names "Just Pik't", "Fresh
Pik't", "Florida Pik't", "Ultimate" and "Hansen's". The majority of the juice
produced by Fresh Juice is fresh squeezed orange juice. The transaction was
accounted for as a purchase. The purchase price of $21.7 million was comprised
of cash of approximately $16.4 million and 2,133,553 shares of Saratoga Class A
common stock. The cash payment was financed through a credit agreement
consummated with NationsBank, N.A., which included an $8 million term loan and
a $14 million revolving credit facility. Preliminary estimates anticipate that
the purchase price exceeded the fair value of net assets acquired by
approximately $15.1 million, which is being amortized on a straight-line basis
over 25 years.
The following summarized unaudited proforma financial information for the years
ended December 31, 1998 and 1997 assumes the acquisition had occurred on
January 1 of each year:
PRO FORMA INFORMATION
(in millions, except per share data) 1998 1997
- ----------------------------------------------------------------------
Net sales $46.5 $47.7
Net (loss) (1.3) (0.3)
(Loss) per share
Basic and fully diluted ($0.25) ($0.06)
- ----------------------------------------------------------------------
These amounts include Fresh Juice's results for years ended November 30 and the
Company's results for years ended December 31, 1998 and 1997 after giving
effect to certain proforma adjustments. Proforma information includes
adjustments for interest expense that would have been incurred to finance the
acquisition, amortization of goodwill acquired in the acquisition, increase in
inventory and cost of goods sold to fair value, and adjustments to record
income taxes at the expected effective rate. The proforma information does not
include any adjustment for depreciation of the fair value of plant and
equipment because the fair value has not yet been determined. The proforma data
is for informational purposes only and may not necessarily reflect the results
of operations of the Company had the acquired business operated as part of the
Company for the years ended December 31, 1998 and 1997.
Future minimum operating and capital lease commitments for Fresh Juice through
2007 approximate $3,600,000.
F-18
<PAGE>
INDEX TO EXHIBITS
Exhibit No.
- -------------------------------------------------------------------------------
NationsBank NA Credit Agreement dated January 29, 1999 25.1
Robin Prever Employment Agreement 25.2
<PAGE>
- -------------------------------------------------------------------------------
CREDIT AGREEMENT
by and among
SARATOGA BEVERAGE GROUP, INC.
as Borrower,
NATIONSBANK, NATIONAL ASSOCIATION,
as Agent and as Lender
and
THE LENDERS PARTY HERETO FROM TIME TO TIME
January 29, 1999
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE Definitions and Terms
1.1. Definitions......................................................2
1.2. Rules of Interpretation.........................................25
ARTICLE II The Loans
2.1. Term Loan.......................................................27
2.2. Revolving Loans.................................................27
2.3. Payment of Principal............................................29
2.4. Payment of Interest.............................................29
2.5. Manner of Payment...............................................30
2.6. Optional Prepayments............................................30
2.7. Mandatory Prepayments. ........................................31
2.8. Notes...........................................................32
2.9. Pro Rata Payments...............................................32
2.10. Reductions......................................................32
2.11. Conversions and Elections of Subsequent Interest Periods........32
2.12. Increase and Decrease in Amounts................................33
2.13. Facility Fees...................................................33
2.14. Deficiency Advances.............................................33
2.15. Use of Proceeds.................................................34
ARTICLE III Security
3.1. Security........................................................35
3.2. Stock Pledge....................................................35
3.3. Facility Guaranty...............................................35
3.4. Further Assurances..............................................35
3.5. Information Regarding Collateral................................36
3.6. Mortgages.......................................................36
ARTICLE IV Change in Circumstances
4.1. Increased Cost and Reduced Return...............................37
<PAGE>
4.2. Limitation on Types of Loans....................................38
4.3. Illegality......................................................38
4.4. Treatment of Affected Loans.....................................39
4.5. Compensation....................................................39
4.6. Taxes...........................................................40
ARTICLE V Conditions to Making Loans
5.1. Conditions of Term Loan and Initial Advance.....................42
5.2. Conditions of Revolving Loans. ................................45
ARTICLE VI Representations and Warranties
6.1. Organization and Authority......................................46
6.2. Loan Documents..................................................46
6.3. Solvency........................................................47
6.4. Subsidiaries and Stockholders...................................47
6.5. Ownership Interests.............................................47
6.6. Financial Condition.............................................47
6.7. Title to Properties.............................................48
6.8. Taxes...........................................................49
6.9. Other Agreements................................................49
6.10. Litigation......................................................49
6.11. Margin Stock....................................................49
6.12. Investment Company..............................................49
6.13. Patents, Etc....................................................50
6.14. No Untrue Statement.............................................50
6.15. No Consents, Etc................................................50
6.16. Employee Benefit Plans..........................................50
6.17. No Default......................................................51
6.18. Environmental Laws..............................................52
6.19. Employment Matters..............................................52
6.20. RICO............................................................52
6.21. Year 2000 Compliance............................................52
ARTICLE VII Affirmative Covenants
7.1. Financial Reports, Etc..........................................54
7.2. Maintain Properties.............................................55
7.3. Existence, Qualification, Etc...................................55
7.4. Regulations and Taxes...........................................55
7.5. Insurance.......................................................56
<PAGE>
7.6. True Books......................................................56
7.7. Year 2000 Compliance............................................56
7.8. Right of Inspection.............................................56
7.9. Observe all Laws................................................56
7.10. Governmental Licenses...........................................57
7.11. Covenants Extending to Other Persons............................57
7.12. Officer's Knowledge of Default..................................57
7.13. Suits or Other Proceedings......................................57
7.14. Notice of Environmental Complaint or Condition..................57
7.15. Environmental Compliance........................................57
7.16. Indemnification.................................................58
7.17. Further Assurances..............................................58
7.18. Employee Benefit Plans..........................................58
7.19. Continued Operations............................................59
7.20. New Subsidiaries................................................59
7.21. Swap Agreements.................................................61
7.22. Key Employee Contracts..........................................61
7.23. Life Insurance..................................................61
ARTICLE VIII Negative Covenants
8.1. Financial Covenants.............................................62
8.2. Acquisitions....................................................63
8.3. Capital Expenditures............................................63
8.4. Liens...........................................................64
8.5. Indebtedness....................................................65
8.6. Transfer of Assets..............................................65
8.7. Investments.....................................................65
8.8. Merger or Consolidation.........................................66
8.9. Restricted Payments.............................................66
8.10. Transactions with Affiliates....................................66
8.11. Compliance with ERISA...........................................67
8.12. Fiscal Year.....................................................68
8.13. Dissolution, etc................................................68
8.14. Limitations on Sales and Leasebacks.............................68
8.15. Change in Control...............................................68
8.16. Rate Hedging Obligations........................................68
8.17. Negative Pledge Clauses.........................................68
8.18. Compensation; Reimbursement of Expenses.........................68
8.19. Change in Accountants...........................................69
8.20. Lease Payments..................................................69
ARTICLE IX Events of Default and Acceleration
<PAGE>
9.1. Events of Default...............................................69
9.2. Agent to Act....................................................72
9.3. Cumulative Rights...............................................72
9.4. No Waiver.......................................................72
9.5. Allocation of Proceeds..........................................72
ARTICLE X The Agent
10.1. Appointment, Powers, and Immunities.............................74
10.2. Reliance by Agent...............................................74
10.3. Defaults........................................................75
10.4. Rights as Lender................................................75
10.5. Indemnification.................................................75
10.6. Non-Reliance on Agent and Other Lenders.........................76
10.7. Resignation of Agent............................................76
10.8. Fees............................................................76
ARTICLE XI Miscellaneous
11.1. Assignments and Participations..................................77
11.2. Notices.........................................................78
11.3. Right of Set-off; Adjustments...................................80
11.4. Survival........................................................80
11.5. Expenses........................................................81
11.6. Amendments and Waivers..........................................81
11.7. Counterparts....................................................81
11.8. Termination.....................................................81
11.9. Indemnification; Limitation of Liability........................82
11.10. Severability....................................................83
11.11. Entire Agreement................................................83
11.12. Agreement Controls..............................................83
11.13. Usury Savings Clause............................................83
11.14. Payments........................................................84
11.15. GOVERNING LAW; WAIVER OF JURY TRIAL.............................84
EXHIBIT A Applicable Commitment Percentages..............................A-1
EXHIBIT B Form of Assignment and Acceptance..............................B-1
EXHIBIT C Notice of Appointment (or Revocation) of Authorized
Representative...................................C-1
EXHIBIT D Form of Borrowing Notice.......................................D-1
EXHIBIT E Form of Interest Rate Selection Notice.........................E-1
EXHIBIT F-1 Form of Revolving Note.......................................F-1-1
<PAGE>
EXHIBIT F-2 Form of Term Note............................................F-2-1
EXHIBIT G Form of Opinion of Borrower's Counsel..........................G-1
EXHIBIT H Compliance Certificate.........................................H-1
EXHIBIT I Form of Facility Guaranty......................................I-1
EXHIBIT J Form of Security Agreement.....................................J-1
EXHIBIT K Form of Intellectual Prop......................................K-1
Schedule 3.5 Information Regarding Collateral........................S-1
Schedule 6.4 Subsidiaries and Investments in Other Persons...........S-2
Schedule 6.7 Liens...................................................S-3
Schedule 6.8 Tax Matters ............................................S-4
Schedule 6.10 Litigation..............................................S-5
Schedule 6.18 Environmental...........................................S-6
Schedule 7.5 Insurance...............................................S-7
Schedule 8.5(e) Purchase Money Indebtedness.............................S-8
Schedule 8.5(f) Hansens Notes...........................................S-9
<PAGE>
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of January 29, 1999 (the "Agreement"),
is made by and among SARATOGA BEVERAGE GROUP, INC., a Delaware corporation
having its principal place of business in Saratoga Springs, New York (the
"Borrower"), NATIONSBANK, NATIONAL ASSOCIATION, a national banking association
organized and existing under the laws of the United States, in its capacity as a
Lender ("NationsBank"), and each other financial institution executing and
delivering a signature page hereto and each other financial institution which
may hereafter execute and deliver an instrument of assignment with respect to
this Agreement pursuant to Section 11.1 (hereinafter such financial institutions
may be referred to individually as a "Lender" or collectively as the "Lenders"),
and NATIONSBANK, NATIONAL ASSOCIATION, a national banking association organized
and existing under the laws of the United States, in its capacity as agent for
the Lenders (in such capacity, and together with any successor agent appointed
in accordance with the terms of Section 10.7, the "Agent");
W I T N E S S E T H:
--------------------
WHEREAS, the Borrower has requested that the Lenders make available to
the Borrower a term loan facility in the principal amount of $8,000,000 and a
revolving credit facility of up to $14,000,000 the proceeds of which are to be
used to finance the FJC Acquisition (as defined below) and other Acquisitions
and certain capital expenditures permitted hereunder, and for general working
capital needs; and
WHEREAS, the Lenders are willing to make such term loan and revolving
credit facilities available to the Borrower upon the terms and conditions set
forth herein;
NOW, THEREFORE, the Borrower, the Lenders and the Agent hereby agree as
follows:
<PAGE>
ARTICLE I
Definitions and Terms
---------------------
I.1. Definitions. For the purposes of this Agreement, in addition to
the definitions set forth above, the following terms shall have the respective
meanings set forth below:
"Acquisition" means the acquisition of (i) a controlling
equity interest in another Person (including the purchase of an option,
warrant or convertible or similar type security to acquire such a
controlling interest at the time it becomes exercisable by the holder
thereof), whether by purchase of such equity interest or upon exercise
of an option or warrant for, or conversion of securities into, such
equity interest, or (ii) assets of another Person which constitute all
or substantially all any material part of the assets of such Person or
of a line or lines of business conducted by such Person.
"Advance" means any of (i) the borrowing under the Term Loan
Facility or (ii) a borrowing under the Revolving Credit Facility
consisting of a Base Rate Loan or a Eurodollar Rate Loan.
"Affiliate" means any Person (i) which directly or indirectly
through one or more intermediaries controls, or is controlled by, or is
under common control with the Borrower; or (ii) which beneficially owns
or holds 10% or more of any class of the outstanding voting stock (or
in the case of a Person which is not a corporation, 10% or more of the
equity interest) of the Borrower; or 10% or more of any class of the
outstanding voting stock (or in the case of a Person which is not a
corporation, 10% or more of the equity interest) of which is
beneficially owned or held by the Borrower. The term "control" means
the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a Person, whether
through ownership of voting stock, by contract or otherwise.
"Applicable Commitment Percentage" means, with respect to each
Lender at any time, (i) with respect to the Revolving Credit Facility,
a fraction, the numerator of which shall be such Lender's Revolving
Credit Commitment and the denominator of which shall be the Total
Revolving Credit Commitment, and (ii) with respect to the Term Loan
Facility, a fraction, the numerator of which shall be such Lender's
Term Loan Commitment and the denominator of which shall be the Total
Term Loan Commitment, which Applicable Commitment Percentage for each
Lender as of the Closing Date is as set forth in Exhibit A; provided
that the Applicable Commitment Percentage of each Lender shall be
increased or decreased to reflect any assignments to or by such Lender
effected in accordance with Section 11.1.
"Applicable Lending Office" means, for each Lender and for
each Type of Loan, the "Lending Office" of such Lender (or of an
affiliate of such Lender) designated for such Type of Loan on the
signature pages hereof or such other office of such Lender (or an
affiliate of such Lender) as such Lender may from time to time specify
to the Agent
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and the Borrower by written notice in accordance with the terms hereof
as the office by which its Loans of such Type are to be made and
maintained.
"Applicable Margin" means (i) with respect to the Term Loan,
3.500% per annum, and (ii) with respect to Revolving Loans, that
percent per annum set forth below, which shall be based upon the
Consolidated Leverage Ratio for the Four-Quarter Period most recently
ended as specified below:
Applicable
Margin
-------------------------
Consolidated Leverage Base Eurodollar
Ratio Rate Rate
--------------------- ------ ----------
(a) Greater than 4.00 to 1.00 1.000% 2.500%
(b) Less than or equal to 4.00 to 1.00
but greater than 3.50 to 1.00 .750% 2.000%
(c) Less than or equal to 3.50 to 1.00
but greater than 3.00 to 1.00 .500% 1.750%
(d) Less than or equal to 3.00 to 1.00 .250% 1.500%
but greater than 2.50 to 1.00
(e) Less than or equal to 2.50 to 1.00 .200% 1.250%
The Applicable Margin for Revolving Loans shall be established at the
end of each fiscal quarter of the Borrower (each, a "Determination
Date"). Any change in the Applicable Margin for Revolving Loans
following each Determination Date shall be determined based upon the
computations set forth in the certificate furnished to the Agent
pursuant to Section 7.1(a)(ii) and Section 7.1(c)(ii), subject to
review and approval of such computations by the Agent, and shall be
effective commencing on the first Business Day following the date such
certificate is received until the first Business Day following the date
on which a new certificate is delivered or is required to be delivered,
whichever shall first occur; provided however, if the Borrower shall
fail to deliver any such certificate within the time period required by
Section 7.1, then the Applicable Margin for Revolving Loans shall be
1.000% for Base Rate Loans and 2.500% for Eurodollar Rate Loans until
the appropriate certificate is so delivered. From the Closing Date to
the first anniversary of this Agreement, the Applicable Margin for
Revolving Loans shall be 1.000% for Base Rate Loans and 2.500% for
Eurodollar Rate Loans. Effective on the first anniversary of this
Agreement the Applicable Margin for Revolving Loans shall be based upon
the Consolidated Leverage Ratio as of the most recent Determination
Date.
"Applicable Unused Fee" means that percent per annum set forth
below, which shall be based upon the Consolidated Leverage Ratio for
the Four-Quarter Period most
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recently ended as specified below:
Applicable Consolidated Leverage Unused
Ratio Fee
-------------- ------
(a) Greater than 4.00 to 1.00 .375%
(b) Less than or equal to 4.00 to 1.00
but greater than 3.50 to 1.00 .300%
(c) Less than or equal to 3.50 to 1.00
but greater than 3.00 to 1.00 .250%
(d) Less than or equal to 3.00 to 1.00 .200%
but greater than 2.50 to 1.00
(e) Less than or equal to 2.50 to 1.00 .175%
The Applicable Unused Fee shall be established at the end of each
fiscal quarter of the Borrower (the "Determination Date"). Any change
in the Applicable Unused Fee following each Determination Date shall be
determined based upon the computations set forth in the certificate
furnished to the Agent pursuant to Section 7.1(a)(ii) and Section
7.1(c)(ii), subject to review and approval of such computations by the
Agent and shall be effective commencing on the first Business Day
following the date such certificate is received until the first
Business Day following the date on which a new certificate is delivered
or is required to be delivered, whichever shall first occur; provided
however, if the Borrower shall fail to deliver any such certificate
within the time period required by Section 7.1, then the Applicable
Unused Fee shall be .375% until the appropriate certificate is so
delivered. From the Closing Date to the first anniversary of this
Agreement, the Applicable Unused Fee shall be .375%. Effective on the
first anniversary of this Agreement the Applicable Unused Fee shall be
based upon the Consolidated Leverage Ratio as of the most recent
Determination Date.
"Asset Disposition" means any voluntary disposition, whether
by sale, lease or transfer, other than as permitted under Section 8.6
hereof, of (a) any of the assets, excluding cash and cash equivalents,
of the Borrower or its Subsidiaries, and (b) any of the capital stock,
or securities or investments exchangeable, exercisable or convertible
for or into, or otherwise entitling the holder to receive any of the
capital stock, of any Subsidiary (other than a disposition to a
Guarantor).
"Assignment and Acceptance" shall mean an Assignment and
Acceptance in the form of Exhibit B (with blanks appropriately filled
in) delivered to the Agent in connection with an assignment of a
Lender's interest under this Agreement pursuant to
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Section 11.1.
"Assignment of Life Insurance" means the Collateral Assignment
of Life Insurance Agreement dated as of the date hereof by the Borrower
to the Agent, as hereafter modified, amended or supplemented from time
to time.
"Authorized Representative" means any of the President or any
Vice President of the Borrower or, with respect to financial matters,
the chief financial officer of the Borrower, or any other Person
expressly designated by the Board of Directors of the Borrower (or the
appropriate committee thereof) as an Authorized Representative of the
Borrower, as set forth from time to time in a certificate in the form
of Exhibit C.
"Base Rate" means, for any day, the rate per annum equal to
the sum of (a) the higher of (i) the Federal Funds Rate for such day
plus one-half of one percent (0.50%) and (ii) the Prime Rate for such
day plus (b) the Applicable Margin. 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 Federal Funds
Rate.
"Base Rate Loan" means a Loan for which the rate of interest
is determined by reference to the Base Rate.
"Board" means the Board of Governors of the Federal Reserve
System (or any successor body).
"Borrower's Account" means a demand deposit account number
_____________________ or any successor account with the Agent, which
may be maintained at one or more offices of the Agent or an agent of
the Agent.
"Borrowing Notice" means the notice delivered by an Authorized
Representative in connection with an Advance under the Revolving Credit
Facility, in the form of Exhibit D.
"Boylan Investment" means the proposed loan by the Borrower to
Boylan Corporation of up to $1,000,000 pursuant to the terms of the
Term Sheet dated January 14, 1999, a copy of which has been provided to
the Agent.
"Boylan Investment Documents" means all of the promissory
notes, agreements, security agreements, warrants and other documents
executed and delivered to evidence and secure the Boylan Investment.
"Boylan Investment Documents Pledge Agreement" means that
certain Collateral Assignment of Investment Documents substantially in
the form of Exhibit M delivered to the Agent pursuant to Section 3.1
hereof, pursuant to which the Agent is granted a Lien in the Boylan
Investment Documents, as the same may be amended, supplemented or
restated from time to time.
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<PAGE>
"Business Day" means, (i) with respect to any Base Rate Loan,
any day which is not a Saturday, Sunday or a day on which banks in the
States of New York and North Carolina are authorized or obligated by
law, executive order or governmental decree to be closed and, (ii) with
respect to any Eurodollar Rate Loan, any day which is a Business Day,
as described above, and on which the relevant international financial
markets are open for the transaction of business contemplated by this
Agreement in London, England, New York, New York and Charlotte, North
Carolina.
"Capital Expenditures" means, with respect to the Borrower and
its Subsidiaries, for any period the sum of (without duplication) (i)
all expenditures (whether paid in cash or accrued as liabilities) by
the Borrower or any Subsidiary during such period for items that would
be classified as "property, plant or equipment" or comparable items on
the consolidated balance sheet of the Borrower and its Subsidiaries,
including without limitation all transactional costs incurred in
connection with such expenditures provided the same have been
capitalized, excluding, however, the amount of any Capital Expenditures
paid for with proceeds of casualty insurance as evidenced in writing
and submitted to the Agent together with any compliance certificate
delivered pursuant to Section 7.1(a) or (c), and (ii) with respect to
any Capital Lease entered into by the Borrower or its Subsidiaries
during such period, the present value of the lease payments due under
such Capital Lease over the term of such Capital Lease applying a
discount rate equal to the interest rate provided in such lease (or in
the absence of a stated interest rate, that rate used in the
preparation of the financial statements described in Section 7.1(a)),
all the foregoing in accordance with GAAP applied on a Consistent
Basis.
"Capital Leases" means all leases which have been or should be
capitalized in accordance with GAAP as in effect from time to time
including Statement No. 13 of the Financial Accounting Standards Board
and any successor thereof.
"Change of Control" means, at any time:
(i) any "person" or "group" (each as used in Sections
13(d)(3) and 14(d)(2) of the Exchange Act) other than Prever
either (A) becomes the "beneficial owner" (as defined in Rule
13d-3 of the Exchange Act ), directly or indirectly, of Voting
Stock of the Borrower (or securities convertible into or
exchangeable for such Voting Stock) representing 33-1/3% or
more of the combined voting power of all Voting Stock of the
Borrower (on a fully diluted basis) or (B) otherwise has the
ability, directly or indirectly, to elect a majority of the
board of directors of the Borrower;
(ii) during any period of up to 24 consecutive months,
commencing on the Closing Date, individuals who at the
beginning of such 24-month period were directors of the
Borrower shall cease for any reason (other than the death,
disability or retirement of an officer of the Borrower that is
serving as a director at such time so long as another officer
of the Borrower replaces such Person as a director) to
constitute a majority of the board of directors of the
Borrower;
6
<PAGE>
(iii) any Person or two or more Persons acting in
concert shall have acquired by contract or otherwise, or shall
have entered into a contract or arrangement that, upon
consummation thereof, will result in its or their acquisition
of the power to exercise, directly or indirectly, a
controlling influence on the management or policies of the
Borrower; or
(iv) Prever shall reduce her ownership in the Borrower
by more than 10% in any Fiscal Year or 30% in the aggregate;
provided, however, at such time as the Borrower shall achieve
a Consolidated Leverage Ratio of 3.50 to 1.00 or less, Prever
may reduce her ownership in the Borrower to a level not less
than 50% of her ownership interest in the Borrower as of the
Closing Date; provided further, however, that (i) no less than
ten (10) days following her termination of employment by the
Borrower, Prever may sell her interest in the Borrower without
limitation, subject to the terms of her employment contract
with the Borrower, and (ii) following her death, Prever's
estate and/or her heirs may sell Prever's interest in the
Borrower without limitation.
"Closing Date" means the date as of which this Agreement is
executed by the Borrower, the Lenders and the Agent and on which the
conditions set forth in Section 5.1 have been satisfied.
"Code" means the Internal Revenue Code of 1986, as amended,
and any regulations promulgated thereunder.
"Collateral" means, collectively, all property of the
Borrower, any Subsidiary or any other Person in which the Agent or any
Lender is granted a Lien as security for all or any portion of the
Obligations under any Security Instrument.
"Consistent Basis" in reference to the application of GAAP
means the accounting principles observed in the period referred to are
comparable in all material respects to those applied in the preparation
of the audited financial statements of the Borrower referred to in
Section 6.6(a).
"Consolidated EBITDA" means, with respect to the Borrower and
its Subsidiaries for any Four-Quarter Period ending on the date of
computation thereof, the sum of, without duplication, (i) Consolidated
Net Income, (ii) Consolidated Interest Expense, (iii) taxes on income,
(iv) amortization, and (v) depreciation, all determined on a
consolidated basis in accordance with GAAP applied on a Consistent
Basis; provided, however, that with respect to an Acquisition that is
accounted for as a "purchase", for the four Four-Quarter Periods ending
next following the date of such Acquisition, Consolidated EBITDA shall
include the results of operations of the Person or assets so acquired,
which amounts shall be determined on a historical pro forma basis as if
such Acquisition had been consummated as a "pooling of interests".
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<PAGE>
"Consolidated EBITDAR" means Consolidated EBITDA plus
Consolidated Lease Payments.
"Consolidated Fixed Charge Ratio" means, with respect to the
Borrower and its Subsidiaries for any Four-Quarter Period ending on the
date of computation thereof, the ratio of (i) Consolidated EBITDAR for
such period, to (ii) Consolidated Fixed Charges for such period.
"Consolidated Fixed Charges" means, with respect to Borrower
and its Subsidiaries for any Four-Quarter Period ending on the date of
computation thereof, the sum of, without duplication, (i) Consolidated
Interest Expense, (ii) income taxes accrued during such period, (iii)
Consolidated Lease Payments for such period and (iv) all dividends and
other distributions (other than distributions in the form of capital
stock of the Borrower) paid during such period (regardless of when
declared) on any shares of capital stock of the Borrower then
outstanding, all determined on a consolidated basis in accordance with
GAAP applied on a Consistent Basis.
"Consolidated Indebtedness" means all Indebtedness of the
Borrower and its Subsidiaries, all determined on a consolidated basis.
"Consolidated Interest Coverage Ratio" means, with respect to
the Borrower and its Subsidiaries for any Four-Quarter period ending on
the date of computation thereof, the ratio of Consolidated EBITDA to
Consolidated Interest Expense.
"Consolidated Interest Expense" means, with respect to any
period of computation thereof, the gross interest expense of the
Borrower and its Subsidiaries, including without limitation (i) the
current amortized portion of debt discounts to the extent included in
gross interest expense, (ii) the current amortized portion of all fees
(including fees payable in respect of any Swap Agreement) payable in
connection with the incurrence of Indebtedness to the extent included
in gross interest expense and (iii) the portion of any payments made in
connection with Capital Leases allocable to interest expense, all
determined on a consolidated basis in accordance with GAAP applied on a
Consistent Basis.
"Consolidated Lease Payments" means the gross amount of all
lease or rental payments, whether or not characterized as rent, of the
Borrower and its Subsidiaries, excluding payments in respect of Capital
Leases constituting Indebtedness, all determined on a consolidated
basis in accordance with GAAP applied on a Consistent Basis.
"Consolidated Leverage Ratio" means, as of the date of
computation thereof, the ratio of (i) the sum of (without duplication)
Consolidated Indebtedness (determined as at such date) to (ii)
Consolidated EBITDA (for the Four-Quarter Period ending on (or most
recently ended prior to) such date).
"Consolidated Net Income" means, for any period of computation
thereof, the
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<PAGE>
gross revenues from operations of the Borrower and its Subsidiaries
(including payments actually received by the Borrower and its
Subsidiaries of (i) interest income, and (ii) dividends and
distributions made in the ordinary course of their businesses by
Persons in which investment is permitted pursuant to this Agreement and
not related to an extraordinary event), plus, for purposes of
determining compliance with the provisions of Section 8.1 hereof for
the four (4) Four-Quarter Periods following the Closing Date, charges
associated with the FJC Acquisition, less all operating and
non-operating expenses of the Borrower and its Subsidiaries including
taxes on income, all determined on a consolidated basis in accordance
with GAAP applied on a Consistent Basis; but excluding as income: (i)
net gains on the sale, conversion or other disposition of capital
assets, (ii) net gains on the acquisition, retirement, sale or other
disposition of capital stock and other securities of the Borrower or
its Subsidiaries, (iii) net gains on the collection of proceeds of life
insurance policies, (iv) any write-up of any asset, and (v) any other
net gain or credit of an extraordinary nature as determined in
accordance with GAAP applied on a Consistent Basis.
"Contingent Obligation" of any Person means all contingent
liabilities required (or which, upon the creation or incurring thereof,
would be required) to be included in the financial statements
(including footnotes) of such Person in accordance with GAAP applied on
a Consistent Basis, including Statement No. 5 of the Financial
Accounting Standards Board, all Rate Hedging Obligations and any
obligation of such Person guaranteeing or in effect guaranteeing any
Indebtedness, dividend or other obligation of any other Person (the
"primary obligor") in any manner, whether directly or indirectly,
including obligations of such Person however incurred:
(1) to purchase such Indebtedness or other obligation
or any property or assets constituting security therefor;
(2) to advance or supply funds in any manner (i) for
the purchase or payment of such Indebtedness or other
obligation, or (ii) to maintain a minimum working capital, net
worth or other balance sheet condition or any income statement
condition of the primary obligor;
(3) to grant or convey any lien, security interest,
pledge, charge or other encumbrance on any property or assets
of such Person to secure payment of such Indebtedness or other
obligation;
(4) to lease property or to purchase securities or
other property or services primarily for the purpose of
assuring the owner or holder of such Indebtedness or
obligation of the ability of the primary obligor to make
payment of such Indebtedness or other obligation; or
(5) otherwise to assure the owner of the Indebtedness
or such obligation of the primary obligor against loss in
respect thereof.
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"Continue", "Continuation", and "Continued" shall refer to the
continuation pursuant to Section 2.11 hereof of a Eurodollar Rate Loan
of one Type as a Eurodollar Rate Loan of the same Type from one
Interest Period to the next Interest Period.
"Convert", "Conversion", and "Converted" shall refer to a
conversion pursuant to Section 2.11 of one Type of Loan into another
Type of Loan.
"Cost of Acquisition" means, with respect to any Acquisition,
as at the date of entering into any agreement therefor, the sum of the
following (without duplication): (i) the value of the capital stock,
warrants or options to acquire capital stock of Borrower or any
Subsidiary to be transferred in connection therewith, (ii) the amount
of any cash and fair market value of other property (excluding property
described in clause (i) and the unpaid principal amount of any debt
instrument) given as consideration, (iii) the amount (determined by
using the face amount or the amount payable at maturity, whichever is
greater) of any Indebtedness incurred, assumed or acquired by the
Borrower or any Subsidiary in connection with such Acquisition, (iv)
all additional purchase price amounts in the form of earnouts and other
contingent obligations that should be recorded on the financial
statements of the Borrower and its Subsidiaries in accordance with
GAAP, (v) all amounts paid in respect of covenants not to compete,
consulting agreements that should be recorded on financial statements
of the Borrower and its Subsidiaries in accordance with GAAP, and other
affiliated contracts in connection with such Acquisition, (vi) the
aggregate fair market value of all other consideration given by the
Borrower or any Subsidiary in connection with such Acquisition, and
(vii) out of pocket transaction costs for the services and expenses of
attorneys, accountants and other consultants incurred in effecting such
transaction, and other similar transaction costs so incurred. For
purposes of determining the Cost of Acquisition for any transaction,
(A) the capital stock of the Borrower shall be valued (I) in the case
of capital stock that is then designated as a national market system
security by the National Association of Securities Dealers, Inc.
("NASDAQ") or is listed on a national securities exchange, the average
of the last reported bid and ask quotations or the last prices reported
thereon, and (II) with respect to shares that are not freely tradeable,
as determined by the Board of Directors of the Borrower and, if
requested by the Agent, determined to be a reasonable valuation by the
independent public accountants referred to in Section 7.1(a), (B) the
capital stock of any Subsidiary shall be valued as determined by the
Board of Directors of such Subsidiary and, if requested by the Agent,
determined to be a reasonable valuation by the independent public
accountants referred to in Section 7.1(a), and (C) with respect to any
Acquisition accomplished pursuant to the exercise of options or
warrants or the conversion of securities, the Cost of Acquisition shall
include both the cost of acquiring such option, warrant or convertible
security as well as the cost of exercise or conversion.
"Credit Party" means, collectively, the Borrower and each
Guarantor.
"Default" means any event or condition which, with the giving
or receipt of notice or lapse of time or both, would constitute an
Event of Default hereunder.
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"Default Rate" means (i) with respect to each Eurodollar Rate
Loan and Eurodollar Rate Segment, until the end of the Interest Period
applicable thereto, a rate of two percent (2%) above the Eurodollar
Rate applicable to such Loan or Segment, and thereafter at a rate of
interest per annum which shall be two percent (2%) above the Base Rate,
(ii) with respect to Base Rate Loans, at a rate of interest per annum
which shall be two percent (2%) above the Base Rate, and (iii) in any
case, the maximum rate permitted by applicable law, if lower.
"Dollars" and the symbol "$" means dollars constituting legal
tender for the payment of public and private debts in the United States
of America.
"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 11.1, the Borrower,
such approval to be deemed given by 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.
"Eligible Securities" means the following obligations and any
other obligations previously approved in writing by the Agent:
(a) Government Securities;
(b) obligations of any corporation organized under
the laws of any state of the United States of America or under
the laws of any other nation, payable in the United States of
America, expressed to mature not later than 92 days following
the date of issuance thereof and rated in an investment grade
rating category by S&P or Moody's;
(c) interest bearing demand or time deposits issued
by any Lender or certificates of deposit maturing within one
year from the date of issuance thereof and issued by a bank or
trust company organized under the laws of the United States or
of any state thereof having capital surplus and undivided
profits aggregating at least $400,000,000 and being rated "A-"
or better by S&P or "A-3" or better by Moody's;
(d) Repurchase Agreements;
(e) Municipal Obligations;
(f) Pre-Refunded Municipal Obligations;
(g) shares of mutual funds which invest in
obligations described in paragraphs (a) through (f) above, the
shares of which mutual funds are at all times
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rated "AAA" by S&P;
(h) tax-exempt or taxable adjustable rate preferred
stock issued by a Person having a rating of its long term
unsecured debt of "A-" or better by S&P or "A-3" or better by
Moody's; and
(i) asset-backed remarketed certificates of
participation representing a fractional undivided interest in
the assets of a trust, which certificates are rated at least
"A-1" by S&P and "P-1" by Moody's.
"Employee Benefit Plan" means any employee benefit plan within
the meaning of Section 3(3) of ERISA which (i) is maintained for
employees of the Borrower or any of its ERISA Affiliates or is assumed
by the Borrower or any of its ERISA Affiliates in connection with any
Acquisition or (ii) has at any time been maintained for the employees
of the Borrower or any current or former ERISA Affiliate.
"Environmental Laws" means any federal, state or local
statute, law, ordinance, code, rule, regulation, order, decree, permit
or license regulating, relating to, or imposing liability or standards
of conduct concerning, any environmental matters or conditions,
environmental protection or conservation, including without limitation,
the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended; the Superfund Amendments and Reauthorization
Act of 1986, as amended; the Resource Conservation and Recovery Act, as
amended; the Toxic Substances Control Act, as amended; the Clean Air
Act, as amended; the Clean Water Act, as amended; together with all
regulations promulgated thereunder, and any other "Superfund" or
"Superlien" law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute and all
rules and regulations promulgated thereunder.
"ERISA Affiliate", as applied to the Borrower, means any
Person or trade or business which is a member of a group which is under
common control with the Borrower, who together with the Borrower, is
treated as a single employer within the meaning of Section 414(b) and
(c) of the Code.
"Eurodollar Rate Loan" means a Loan for which the rate of
interest is determined by reference to the Eurodollar Rate.
"Eurodollar Rate" means the interest rate per annum calculated
according to the following formula:
Eurodollar Interbank Offered Rate Applicable
Rate = -------------------------- +
1- Reserve Requirement Margin
"Event of Default" means any of the occurrences set forth as
such in Section 9.1.
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"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the regulations promulgated thereunder.
"Facility Guaranty" means each Guaranty and Suretyship
Agreement between one or more Guarantors and the Agent for the benefit
of the Lenders, delivered as of the Closing Date and otherwise pursuant
to Section 7.20, as the same may be amended, modified or supplemented.
"Facility Termination Date" means such date as all of the
following shall have occurred: (a) the Borrower shall have permanently
terminated the Revolving Credit Facility by payment in full of all
Revolving Credit Outstandings, together with all accrued and unpaid
interest thereon, (b) the Borrower shall have paid all Term Loan
Outstandings in full, together with all accrued and unpaid interest
thereon, (c) all Swap Agreements shall have been terminated, expired or
cash collateralized, (d) all Term Loan Commitments and Revolving Credit
Commitments shall have terminated or expired and (e) the Borrower shall
have fully, finally and irrevocably paid and satisfied in full all
Obligations (other than Obligations consisting of continuing
indemnities and other contingent Obligations of the Borrower or any
Guarantor that may be owing to the Lenders pursuant to the Loan
Documents and expressly survive termination of this Agreement);
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to
the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal Reserve
Bank of New York on the Business Day next succeeding such day; provided
that (a) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and
(b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate
charged to the Agent (in its individual capacity) on such day on such
transactions as determined by the Agent.
"Fiscal Year" means the twelve month fiscal period of the
Borrower and its Subsidiaries commencing on January 1 of each calendar
year and ending on December 31 of each calendar year.
"FJC" means The Fresh Juice Company, Inc, a Delaware
corporation.
"FJC Acquisition" means the transaction provided for in the
FJC Acquisition Agreement pursuant to which the Borrower will acquire
FJC.
"FJC Acquisition Agreement" means the Agreement and Plan of
Merger and such other related documentation between the Borrower and
FJC pursuant to which the FJC Acquisition shall be consummated.
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"Foreign Benefit Law" means any applicable statute, law,
ordinance, code, rule, regulation, order or decree of any foreign
nation or any province, state, territory, protectorate or other
political subdivision thereof regulating, relating to, or imposing
liability or standards of conduct concerning, any Employee Benefit
Plan.
"Four-Quarter Period" means a period of four full consecutive
fiscal quarters of the Borrower and its Subsidiaries, taken together as
one accounting period.
"GAAP" or "Generally Accepted Accounting Principles" means
generally accepted accounting principles, being those principles of
accounting set forth in pronouncements of the Financial Accounting
Standards Board, the American Institute of Certified Public Accountants
or which have other substantial authoritative support and are
applicable in the circumstances as of the date of a report.
"Government Securities" means direct obligations of, or
obligations the timely payment of principal and interest on which are
fully and unconditionally guaranteed by, the United States of America.
"Governmental Authority" shall mean any Federal, state,
municipal, national or other governmental department, commission,
board, bureau, court, agency or instrumentality or political
subdivision thereof or any entity or officer exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to any government or any court, in each case whether
associated with a state of the United States, the United States, or a
foreign entity or government.
"Guaranties" means all obligations of the Borrower or any
Subsidiary directly or indirectly guaranteeing, or in effect
guaranteeing, any Indebtedness or other obligation of any other Person.
"Guarantors" means, at any date, the Subsidiaries who are
required to be parties to a Facility Guaranty at such date.
"Hansens Notes" means the promissory notes of The Fresh Juice
Company of California, Inc. described in Schedule 8.5(f), as hereafter
amended, supplement or replaced from time to time.
"Hansens Notes Outstandings" means, collectively, at any date,
the aggregate principal amount then outstanding under the Hansens Notes
that have not been subordinated pursuant to the requirements of Section
7.25 hereof.
"Hazardous Material" means and includes any pollutant,
contaminant, or hazardous, toxic or dangerous waste, substance or
material (including without limitation petroleum products,
asbestos-containing materials and lead), the generation, handling,
storage, transportation, disposal, treatment, release, discharge or
emission of which is
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subject to any Environmental Law.
"Heavirland" means Jeff Heavirland, a resident of __________
County, California.
"Inactive Subsidiaries" means, collectively, Minalba Foods of
North America, Inc. and Fresh Pik't Natural Foods, Inc.
"Indebtedness" means with respect to any Person, without
duplication, all Indebtedness for Money Borrowed, all indebtedness of
such Person for the acquisition of property or arising under Rate
Hedging Obligations, all indebtedness secured by any Lien on the
property of such Person whether or not such indebtedness is assumed,
all liability of such Person by way of endorsements (other than for
collection or deposit in the ordinary course of business), all
Contingent Obligations, all letters of credit and other items which in
accordance with GAAP is required to be classified as a liability on a
balance sheet; but excluding all accounts payable in the ordinary
course of business so long as payment therefor is due within one year;
provided that in no event shall the term Indebtedness include surplus
and retained earnings, lease obligations (other than pursuant to
Capital Leases), reserves for deferred income taxes and investment
credits, other deferred credits or reserves.
"Indebtedness for Money Borrowed" means with respect to any
Person, without duplication, all indebtedness in respect of money
borrowed, including without limitation all Capital Leases and the
deferred purchase price of any property or asset, evidenced by a
promissory note, bond, debenture or similar written obligation for the
payment of money (including conditional sales or similar title
retention agreements), other than trade payables incurred in the
ordinary course of business.
"Intellectual Property Assignments" means those certain
Assignments of Patents, Trademarks, Copyrights and Licenses in the form
attached to the Intellectual Property Security Agreement as Exhibit A,
to be filed upon acceleration of the Obligations hereunder, as from
time to time amended, supplemented or restated.
"Intellectual Property Security Agreement" means,
collectively, (i) the Intellectual Property Security Agreement dated as
of the date hereof by the Borrower and its Subsidiaries to the Agent,
and (ii) any additional Intellectual Property Security Agreement
delivered to the Agent pursuant to Section 7.20, substantially in the
form of Exhibit K hereto, as hereafter modified, amended or
supplemented from time to time.
"Interbank Offered Rate" means, with respect to any Eurodollar
Rate Loan for the Interest Period applicable thereto, the rate per
annum (rounded upwards, if necessary), to the nearest 1/100 of 1%)
appearing on Telerate Page 3750 (or any successor page) as the London
interbank offered rate for deposits in Dollars at approximately 11:00
A.M. (London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period. If for
any reason such rate is not available, the term
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<PAGE>
"Interbank Offered Rate" shall mean, with respect to any Eurodollar
Rate Loan for the Interest Period applicable thereto, the rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
appearing on Reuters Screen LIBO Page as the London interbank offered
rate for deposits in Dollars at approximately 11:00 A.M. (London time)
two Business Days prior to the first day of such Interest Period for a
term comparable to such Interest Period, provided, however; if more
than one rate is specified on Reuters Screen LIBO Page, the applicable
rate shall be the arithmetic mean of all such rates (rounded upwards,
if necessary, to the nearest 1/100 of 1%).
"Interest Period" means, for each Eurodollar Rate Loan, a
period commencing on the date such Eurodollar Rate Loan is made or
Converted and ending, at the Borrower's option, on the date one, two,
three or six months thereafter as notified to the Agent by the
Authorized Representative three (3) Business Days prior to the
beginning of such Interest Period; provided, that,
(i) if the Authorized Representative fails to notify
the Agent of the length of an Interest Period three (3)
Business Days prior to the first day of such Interest Period,
the Eurodollar Rate Loan for which such Interest Period was to
be determined shall be deemed to be a Base Rate Loan as of the
first day thereof, and if such Loan is a Revolving Loan, and
the Borrower shall be deemed to have elected a one month
period if such Loan is a Term Loan;
(ii) if an Interest Period for a Eurodollar Rate Loan
would end on a day which is not a Business Day, such Interest
Period shall be extended to the next Business Day (unless such
extension would cause the applicable Interest Period to end in
the succeeding calendar month, in which case such Interest
Period shall end on the next preceding Business Day);
(iii) any Interest Period which begins on the last
Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last
Business Day of a calendar month;
(iv) no Interest Period shall extend past the Stated
Termination Date for Revolving Loans or past the Term Loan
Termination Date for any Term Loan; and
(v) there shall not be more than five (5) Interest
Periods in effect on any day.
"Interest Rate Selection Notice" means the written notice
delivered by an Authorized Representative in connection with the
election of a subsequent Interest Period for any Eurodollar Rate Loan
or the Conversion of any Eurodollar Rate Loan into a Base Rate Loan or
the Conversion of any Base Rate Loan into a Eurodollar Rate Loan, in
the form of Exhibit E.
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"Key Employees" means, collectively, Prever, Heavirland, and
the Chief Financial Officer to be employed by the Borrower.
"Landlord Waivers" means, collectively, each of the Landlord
Waivers delivered or to be delivered to the Agent pursuant to Section
5.1 or 7.20 hereof by the Landlord of each facility leased by the
Borrower or any Subsidiary, substantially in the form of Exhibit L
hereto, as amended, supplemented or restated from time to time.
"Lien" means any interest in property securing any obligation
owed to, or a claim by, a Person other than the owner of the property,
whether such interest is based on the common law, statute or contract,
and including but not limited to the lien or security interest arising
from a mortgage, encumbrance, pledge, security agreement, conditional
sale or trust receipt or a lease, consignment or bailment for security
purposes. For the purposes of this Agreement, the Borrower and any
Subsidiary shall be deemed to be the owner of any property which it has
acquired or holds subject to a conditional sale agreement, financing
lease, or other arrangement pursuant to which title to the property has
been retained by or vested in some other Person for security purposes.
"Loan" or "Loans" means any of the Revolving Loans or the Term
Loan made under the Revolving Credit Facility or the Term Loan
Facility, respectively.
"Loan Documents" means this Agreement, the Notes, the Security
Instruments, the Facility Guaranties, and all other instruments and
documents heretofore or hereafter executed or delivered to or in favor
of any Lender or the Agent in connection with the Loans made and
transactions contemplated under this Agreement, as the same may be
amended, supplemented or replaced from the time to time.
"Material Adverse Effect" means a material adverse effect on
(i) the business, properties, operations or condition, financial or
otherwise, of the Borrower and its Subsidiaries taken as a whole, (ii)
the ability of any Credit Party to pay or perform its respective
obligations, liabilities and indebtedness under the Loan Documents as
such payment or performance becomes due in accordance with the terms
thereof, or (iii) the rights, powers and remedies of the Agent or any
Lender under any Loan Document or the validity, legality or
enforceability thereof.
"Mortgage" means, collectively or individually as the context
may indicate, (i) the Mortgages, Deeds of Trust and Deeds to Secure
Debt granting a Lien to the Agent (or a trustee for the benefit of the
Agent) for the benefit of the Lenders in Collateral constituting real
property dated as of the date hereof, and (ii) any additional
Mortgages, Deeds of Trust and Deeds to Secure Debt delivered to the
Agent pursuant to Section 7.20, as such documents may be amended,
modified or supplemented from time to time.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a "multiemployer plan" as defined
in Section
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4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate is
making, or is accruing an obligation to make, contributions or has
made, or been obligated to make, contributions within the preceding
six (6) Fiscal Years.
"Municipal Obligations" means general obligations issued by,
and supported by the full taxing authority of, any state of the United
States of America or of any municipal corporation or other public body
organized under the laws of any such state which are rated in the
highest investment rating category by both S&P and Moody's.
"NationsBank" means NationsBank, National Association and its
successors.
"Net Proceeds" from any Asset Disposition means cash payments
received by the Borrower therefrom (including any cash payments
received pursuant to any note or other debt security received in
connection with any Asset Disposition) as and when received, net of (i)
all legal fees and expenses and other fees and expenses paid to third
parties and incurred in connection therewith, (ii) all taxes required
to be paid or accrued as a consequence of such sale, and (iii) all
amounts applied to repayment of Indebtedness (other than the
Obligations) secured by a Lien on the asset or property disposed.
"NMS" means NationsBanc Montgomery Securities LLC and its
successors.
"Notes" means, collectively, the Term Notes and the Revolving
Notes.
"Obligations" means the obligations, liabilities and
Indebtedness of the Borrower with respect to (i) the principal and
interest on the Loans as evidenced by the Notes, (ii) all liabilities
of Borrower to any Lender or an affiliate of a Lender which arise under
a Swap Agreement, and (iii) the payment and performance of all other
obligations, liabilities and Indebtedness of the Borrower to the
Lenders, the Agent or NMS hereunder, under any one or more of the other
Loan Documents or with respect to the Loans.
"Operating Documents" means with respect to any corporation,
limited liability company, partnership, limited partnership, limited
liability partnership or other legally authorized incorporated or
unincorporated entity, the bylaws, operating agreement, partnership
agreement, limited partnership agreement or other applicable documents
relating to the operation, governance or management of such entity.
"Organizational Action" means with respect to any corporation,
limited liability company, partnership, limited partnership, limited
liability partnership or other legally authorized incorporated or
unincorporated entity, any corporate, organizational or partnership
action (including any required shareholder, member or partner action),
or other similar official action, as applicable, taken by such entity.
"Organizational Documents" means with respect to any
corporation, limited liability company, partnership, limited
partnership, limited liability partnership or other legally authorized
incorporated or unincorporated entity, the articles of incorporation,
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<PAGE>
certificate of incorporation, articles of organization, certificate of
limited partnership or other applicable organizational or charter
documents relating to the creation of such entity.
"Outstandings" means, collectively, at any date, the Term Loan
Outstandings and the Revolving Credit Outstandings on such date.
"PBGC" means the Pension Benefit Guaranty Corporation and any
successor thereto.
"Pension Plan" means any employee pension benefit plan within
the meaning of Section 3(2) of ERISA, other than a Multiemployer Plan,
which is subject to the provisions of Title IV of ERISA or Section 412
of the Code and which (i) is maintained for employees of the Borrower
or any of its ERISA Affiliates or is assumed by the Borrower or any of
its ERISA Affiliates in connection with any Acquisition or (ii) has at
any time been maintained for the employees of the Borrower or any
current or former ERISA Affiliate.
"Person" means an individual, partnership, corporation,
limited liability company, limited liability partnership, trust,
unincorporated organization, association, joint venture or a government
or agency or political subdivision thereof.
"Pledge Agreement" means, collectively (or individually as the
context may indicate), (i) that certain Stock Pledge Agreement dated as
of the date hereof between the Borrower and the Agent for the benefit
of the Agent and the Lenders, (ii) that certain Pledge Agreement dated
as of the date hereof between certain of the Guarantors and the Agent
for the benefit of the Agent and the Lenders, and (iii) any additional
Stock Pledge Agreement delivered to the Agent pursuant to Section 7.20,
as hereafter amended, supplemented or replaced from time to time.
"Pledged Stock" has the meaning given to such term in the
Pledge Agreement.
"Prever" means Robin Prever, a resident of Palm Beach County,
Florida.
"Pre-Refunded Municipal Obligations" means obligations of any
state of the United States of America or of any municipal corporation
or other public body organized under the laws of any such state which
are rated, based on the escrow, in the highest investment rating
category by both S&P and Moody's and which have been irrevocably called
for redemption and advance refunded through the deposit in escrow of
Government Securities or other debt securities which are (i) not
callable at the option of the issuer thereof prior to maturity, (ii)
irrevocably pledged solely to the payment of all principal and interest
on such obligations as the same becomes due and (iii) in a principal
amount and bear such rate or rates of interest as shall be sufficient
to pay in full all principal of, interest, and premium, if any, on such
obligations as the same becomes due as verified by a nationally
recognized firm of certified public accountants.
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"Prime Rate" means the per annum rate of interest established
from time to time by NationsBank as its prime rate, which rate may not
be the lowest rate of interest charged by NationsBank to its customers.
"Principal Office" means the principal office of NationsBank,
presently located at 101 North Tryon Street, 15th Floor, NC1 001-15-04,
Charlotte, North Carolina 28255, Attention: Agency Services, or such
other office and address as the Agent may from time to time designate.
"Rate Hedging Obligations" means any and all obligations of
the Borrower or any Subsidiary, whether absolute or contingent and
howsoever and whensoever created, arising, evidenced or acquired
(including all renewals, extensions and modifications thereof and
substitutions therefor), under (i) any and all agreements, devices or
arrangements designed to protect at least one of the parties thereto
from the fluctuations of interest rates, exchange rates or forward
rates applicable to such party's assets, liabilities or exchange
transactions, including, but not limited to, Dollar-denominated or
cross-currency interest rate exchange agreements, forward currency
exchange agreements, interest rate cap or collar protection agreements,
forward rate currency or interest rate options, puts, warrants and
those commonly known as interest rate "swap" agreements; and (ii) any
and all cancellations, buybacks, reversals, terminations or assignments
of any of the foregoing.
"Regulation D" means Regulation D of the Board as the same may
be amended or supplemented from time to time.
"Repurchase Agreement" means a repurchase agreement entered
into with any financial institution whose debt obligations or
commercial paper are rated "A" by either of S&P or Moody's or "A-1" by
S&P or "P-1" by Moody's.
"Required Lenders" means, as of any date, Lenders on such date
having Credit Exposures (as defined below) aggregating (i) if there
shall be fewer than three (3) Lenders, 100% of the aggregate Credit
Exposures of all Lenders on such date, and (ii) if there shall be three
(3) or more Lenders, at least 66-2/3% of the aggregate Credit Exposures
of all the Lenders on such date. For purposes of the preceding
sentence, the amount of the "Credit Exposure" of each Lender shall be
equal at all times (a) other than following the occurrence and during
the continuance of an Event of Default, to the sum of its Revolving
Credit Commitment and Term Loan Commitment, and (b) following the
occurrence and during the continuance of an Event of Default, to the
sum of (i) the amount of such Lender's Applicable Commitment Percentage
of Term Loan Outstandings plus (ii) the aggregate principal amount of
such Lender's Applicable Commitment Percentage of Revolving Credit
Outstandings; provided that, for the purpose of this definition only,
if any Lender shall have failed to fund its Applicable Commitment
Percentage of any Advance, the Term Loan Commitment or Revolving Credit
Commitment, as applicable, of such Lender shall be deemed reduced by
the amount it so failed to fund for so long as such failure shall
continue and such Lender's Credit Exposure
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attributable to such failure shall be deemed held by any Lender making
more than its Applicable Commitment Percentage of such Advance to the
extent it covers such failure.
"Reserve Requirement" means, at any time, the maximum rate at
which reserves (including, without limitation, any marginal, special,
supplemental, or emergency reserves) are required to be maintained
under regulations issued from time to time by the Board of Governors of
the Federal Reserve System (or any successor) by member banks of the
Federal Reserve System against "Eurocurrency liabilities" (as such term
is used in Regulation D). Without limiting the effect of the foregoing,
the Reserve Requirement shall reflect any other reserves required to be
maintained by such member banks with respect to (i) any category of
liabilities which includes deposits by reference to which the
Eurodollar Rate is to be determined, or (ii) any category of extensions
of credit or other assets which include Eurodollar Rate Loans. The
Eurodollar Rate shall be adjusted automatically on and as of the
effective date of any change in the Reserve Requirement.
"Restricted Payment" means (a) any dividend or other
distribution, direct or indirect, on account of any shares of any class
of stock of Borrower or any of its Subsidiaries (other than those
payable or distributable solely to the Borrower) now or hereafter
outstanding, except a dividend payable solely in shares of a class of
stock to the holders of that class; (b) any redemption, conversion,
exchange, retirement or similar payment, purchase or other acquisition
for value, direct or indirect, of any shares of any class of stock of
Borrower or any of its Subsidiaries (other than those payable or
distributable solely to the Borrower) now or hereafter outstanding; (c)
any payment made to retire, or to obtain the surrender of, any
outstanding warrants, options or other rights to acquire shares of any
class of stock of Borrower or any of its Subsidiaries now or hereafter
outstanding; and (d) any issuance and sale of capital stock of any
Subsidiary of the Borrower (or any option, warrant or right to acquire
such stock) other than to the Borrower.
"Revolving Credit Commitment" means, with respect to each
Lender, the obligation of such Lender to make Revolving Loans to the
Borrower up to an aggregate principal amount at any one time
outstanding equal to such Lender's Applicable Commitment Percentage of
the Total Revolving Credit Commitment.
"Revolving Credit Facility" means the facility described in
Article II hereof providing for Loans to the Borrower by the Lenders in
the aggregate principal amount of the Total Revolving Credit
Commitment.
"Revolving Credit Outstandings" means, as of any date of
determination, the aggregate principal amount of all Revolving Loans
then outstanding.
"Revolving Credit Termination Date" means (i) the Stated
Termination Date or (ii) such earlier date of termination of Lenders'
obligations pursuant to Section 9.1 upon the occurrence of an Event of
Default, or (iii) such date as the Borrower may voluntarily and
permanently terminate the Revolving Credit Facility by payment in full
of all
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Revolving Credit Outstandings, together with all accrued and unpaid
interest thereon.
"Revolving Loan" means any borrowing pursuant to an Advance
under the Revolving Credit Facility in accordance with Article II.
"Revolving Notes" means, collectively, the promissory notes of
the Borrower evidencing Revolving Loans executed and delivered to the
Lenders as provided in Section 2.8 substantially in the form of Exhibit
F-1, with appropriate insertions as to amounts, dates and names of
Lenders.
"S&P" means Standard & Poor's Ratings Group, a division of
McGraw-Hill.
"Security Agreement" means , collectively (or individually as
the context may indicate), (i) the Security Agreement dated as of the
date hereof by the Borrower and the Guarantors to the Agent and (ii)
any additional Security Agreement delivered to the Agent pursuant to
Section 7.20, as hereafter modified, amended or supplemented from time
to time.
"Security Instruments" means, collectively, the Pledge
Agreement, the Security Agreement, the Mortgage, the Intellectual
Property Security Agreement, the Intellectual Property Assignments, the
Landlord Waivers, the Assignment of Life Insurance, the Boylan
Investment Documents Pledge Agreement and all other agreements,
instruments and other documents, whether now existing or hereafter in
effect, pursuant to which the Borrower or any Subsidiary shall grant or
convey to the Agent or the Lenders a Lien in property as security for
all or any portion of the Obligations, as any of them may be amended,
modified or supplemented from time to time.
"Single Employer Plan" means any employee pension benefit plan
covered by Title IV of ERISA in respect of which the Borrower or any
Subsidiary is an "employer" as described in Section 4001(b) of ERISA
and which is not a Multiemployer Plan.
"Solvent" means, when used with respect to any Person, that at
the time of determination:
(i) the fair value of its assets (both at fair
valuation and at present fair saleable value on an orderly
basis) is in excess of the total amount of its liabilities,
including Contingent Obligations; and
(ii) it is then able and expects to be able to
pay its debts as they mature; and
(iii) it has capital sufficient to carry on its
business as conducted and as proposed to be conducted.
"Stated Termination Date" means (i) with respect to the Term
Loan, January 28, 2006, and (ii) with respect to the Revolving Credit
Facility, January 28, 2004.
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"Stock Consideration" means, with respect to an Acquisition,
the fair market value of all capital stock or other ownership interests
of the Borrower or any Subsidiary issued or given in connection with
such Acquisition.
"Subordinated Notes" means the 5% Subordinated Convertible
Notes due 2000 issued by the Borrower in the original aggregate
principal amount of $1,500,000.
"Subsidiary" means any corporation or other entity, other than
the Inactive Subsidiaries, in which more than 50% of its outstanding
voting stock or more than 50% of all equity interests is owned directly
or indirectly by the Borrower and/or by one or more of the Borrower's
Subsidiaries.
"Swap Agreement" means one or more agreements between the
Borrower and a Lender with respect to Indebtedness evidenced by any or
all of the Notes, on terms mutually acceptable to Borrower and such
Lender, which agreements create Rate Hedging Obligations.
"Term Loan" means the loan made pursuant to the Term Loan
Facility in accordance with Article II.
"Term Loan Commitment" means, with respect to each Lender, the
obligation of such Lender to make the Term Loan to the Borrower in a
principal amount equal to such Lender's Applicable Commitment
Percentage of the Total Term Loan Commitment as set forth on Exhibit A.
"Term Loan Facility" means the facility described in Article
II providing for a Term Loan to the Borrower by the Lenders in the
original principal amount of $8,000,000.
"Term Loan Outstandings" means, as of any date of
determination, the aggregate principal amount of the Term Loan then
outstanding and all interest accrued thereon.
"Term Loan Termination Date" means (i) the Stated Termination
Date or (ii) such earlier date of termination of Lenders' obligations
pursuant to Section 9.1 upon the occurrence of an Event of Default, or
(iii) such date as the Borrower may voluntarily and permanently
terminate the Term Loan Facility by payment in full of all Obligations
incurred in connection with the Term Loan.
"Term Notes" means, collectively, the promissory notes of the
Borrower evidencing Term Loans executed and delivered to the Lenders as
provided in Section 2.8 substantially in the form of Exhibit F-2, with
appropriate insertions as to amounts, dates and names of Lenders.
"Termination Event" means: (i) a "Reportable Event" described
in Section 4043
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of ERISA and the regulations issued thereunder (unless the notice
requirement has been waived by applicable regulation); or (ii) the
withdrawal of the Borrower or any ERISA Affiliate from a Pension Plan
during a plan year in which it was a "substantial employer" as defined
in Section 4001(a)(2) of ERISA or was deemed such under Section 4062(e)
of ERISA; or (iii) the termination of a Pension Plan, the filing of a
notice of intent to terminate a Pension Plan or the treatment of a
Pension Plan amendment as a termination under Section 4041 of ERISA; or
(iv) the institution of proceedings to terminate a Pension Plan by the
PBGC; or (v) any other event or condition which would constitute
grounds under Section 4042(a) of ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan; or (vi) the
partial or complete withdrawal of the Borrower or any ERISA Affiliate
from a Multiemployer Plan; or (vii) the imposition of a Lien pursuant
to Section 412 of the Code or Section 302 of ERISA; or (viii) any event
or condition which results in the reorganization or insolvency of a
Multiemployer Plan under Section 4241 or Section 4245 of ERISA,
respectively; or (ix) any event or condition which results in the
termination of a Multiemployer Plan under Section 4041A of ERISA or the
institution by the PBGC of proceedings to terminate a Multiemployer
Plan under Section 4042 of ERISA.
"Total Revolving Credit Commitment" means a principal amount
equal to $14,000,000 as reduced from time to time in accordance with
Sections 2.7(d) and 2.10.
"Total Term Loan Commitment" means a principal amount equal to
$8,000,000.
"Type" shall mean any type of Loan (i.e., a Base Rate Loan or
a Eurodollar Rate Loan).
"Voting Stock" means shares of capital stock issued by a
corporation, or equivalent interests in any other 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 if the right so to vote has been
suspended by the happening of such a contingency.
"Year 2000 Compliant" means all computer applications
(including those affected by information received from its suppliers
and vendors) that are material to the Borrower's or any of its
Subsidiaries' business and operations will on a timely basis be able to
perform properly data-sensitive functions involving all dates on and
after January 1, 2000;
"Year 2000 Problem" means the risk that computer applications
used by the Borrower and any of its Subsidiaries (including those
affected by information received from its suppliers and vendors) may be
unable to recognize and perform properly data-sensitive functions
involving certain dates on and after January 1, 2000.
I.2. Rules of Interpretation.
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(a) All accounting terms not specifically defined herein shall
have the meanings assigned to such terms and shall be interpreted in
accordance with GAAP applied on a Consistent Basis.
(b) Each term defined in Article 1 or 9 of the Florida Uniform
Commercial Code shall have the meaning given therein unless otherwise
defined herein, except to the extent that the Uniform Commercial Code
of another jurisdiction is controlling, in which case such terms shall
have the meaning given in the Uniform Commercial Code of the applicable
jurisdiction.
(c) The headings, subheadings and table of contents used
herein or in any other Loan Document are solely for convenience of
reference and shall not constitute a part of any such document or
affect the meaning, construction or effect of any provision thereof.
(d) Except as otherwise expressly provided, references herein
to articles, sections, paragraphs, clauses, annexes, appendices,
exhibits and schedules are references to articles, sections,
paragraphs, clauses, annexes, appendices, exhibits and schedules in or
to this Agreement.
(e) All definitions set forth herein or in any other Loan
Document shall apply to the singular as well as the plural form of such
defined term, and all references to the masculine gender shall include
reference to the feminine or neuter gender, and vice versa, as the
context may require.
(f) When used herein or in any other Loan Document, words such
as "hereunder", "hereto", "hereof" and "herein" and other words of like
import shall, unless the context clearly indicates to the contrary,
refer to the whole of the applicable document and not to any particular
article, section, subsection, paragraph or clause thereof.
(g) References to "including" means including without limiting
the generality of any description preceding such term, and for purposes
hereof the rule of ejusdem generis shall not be applicable to limit a
general statement, followed by or referable to an enumeration of
specific matters, to matters similar to those specifically mentioned.
(h) All dates and times of day specified herein shall refer to
such dates and times at Charlotte, North Carolina.
(i) Each of the parties to the Loan Documents and their
counsel have reviewed and revised, or requested (or had the opportunity
to request) revisions to, the Loan Documents, and any rule of
construction that ambiguities are to be resolved against the drafting
party shall be inapplicable in the construing and interpretation of the
Loan Documents and all exhibits, schedules and appendices thereto.
(j) Any reference to an officer of the Borrower or any other
Person by
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reference to the title of such officer shall be deemed to refer to each
other officer of such Person, however titled, exercising the same or
substantially similar functions.
(k) All references to any agreement or document as amended,
modified or supplemented, or words of similar effect, shall mean such
document or agreement, as the case may be, as amended, modified or
supplemented from time to time only as and to the extent permitted
therein and in the Loan Documents.
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ARTICLE II
The Loans
---------
II.1. Term Loan.
(a) Commitment. Subject to the terms and conditions of this Agreement,
each Lender severally agrees to make an Advance of its Applicable Commitment
Percentage of the Total Term Loan Commitment to the Borrower on the Closing
Date. The principal amount of each Term Loan outstanding hereunder from time to
time shall bear interest at an interest rate per annum equal to the Eurodollar
Rate; provided, however, that (x) no Eurodollar Rate Loans constituting part of
the Term Loan shall have an Interest Period that extends beyond the Term Loan
Termination Date, (y) each Eurodollar Rate Loan constituting part of the Term
Loan shall be in the minimum amount of $100,000 and if greater, an integral
multiple of $100,000, and (z) each Eurodollar Rate Loan constituting part of the
Term Loan may, subject to the provisions of Sections 2.3, 2.5 and 2.6, be repaid
only on the last day of the Interest Period with respect thereto. No amount of
the Term Loan repaid or prepaid by the Borrower may be reborrowed hereunder, and
no subsequent Advances of Term Loan amounts shall be made by any Lender after
the initial such Advance.
(b) Term Loan Advance. Not later than 1:00 P.M., on the Closing Date,
each Lender shall, pursuant to the terms and subject to the conditions of this
Agreement, make the amount of the Term Loan Advance to be made by it on such day
available by wire transfer to the Agent in the amount of its Term Loan
Commitment. Such wire transfer shall be directed to the Agent at the Principal
Office and shall be in the form of immediately available, freely transferable
Dollars. The amount so received by the Agent shall, subject to the terms and
conditions of this Agreement, be made available to the Borrower by delivery of
the proceeds thereof to the Borrower's Account or otherwise as shall be directed
by the Authorized Representative and reasonably acceptable to the Agent.
(c) Interest Periods.The Term Loan shall be comprised of Eurodollar
Rate Loans, provided, however, there shall not be outstanding at any one time
Eurodollar Rate Loans (including Revolving Loans) having more than five (5)
different Interest Periods. If the Agent does not receive an Interest Rate
Selection Notice giving notice of election of the duration of an Interest Period
or Continuation of a Eurodollar Rate Loan by the time prescribed by Section
2.11, the Borrower shall be deemed to have elected a one (1) month Interest
Period for such Loan until the Borrower notifies the Agent in accordance with
Section 2.11.
II.2. Revolving Loans.
(a) Commitment. Subject to the terms and conditions of this Agreement,
each Lender severally agrees to make Advances to the Borrower under the
Revolving Credit Facility from time to time from the Closing Date until the
Revolving Credit Termination Date on a pro rata basis as to the total borrowing
requested by the Borrower on any day determined by such Lender's Applicable
Commitment Percentage up to but not exceeding the Revolving Credit
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Commitment of such Lender, provided, however, that the Lenders will not be
required and shall have no obligation to make any such Advance (i) so long as a
Default or an Event of Default has occurred and is continuing or (ii) if the
Agent has accelerated the maturity of any of the Notes as a result of an Event
of Default; provided further, however, that immediately after giving effect to
each such Advance, (i) prior to the satisfaction of the requirements set forth
in Section 7.25 hereto, the amount of Revolving Credit Outstandings plus Hansens
Notes Outstandings shall not exceed the Total Revolving Credit Commitment, and
(ii) after the satisfaction of the requirements set forth in Section 7.25
hereof, the amount of Revolving Credit Outstandings shall not exceed the Total
Revolving Credit Commitment. Within such limits, the Borrower may borrow, repay
and reborrow under the Revolving Credit Facility on a Business Day from the
Closing Date until, but (as to borrowings and reborrowings) not including, the
Revolving Credit Termination Date; provided, however, that (y) no Revolving Loan
that is a Eurodollar Rate Loan shall be made which has an Interest Period that
extends beyond the Stated Termination Date and (z) each Revolving Loan that is a
Eurodollar Rate Loan may, subject to the provisions of Section 2.11 be repaid
only on the last day of the Interest Period with respect thereto unless such
payment is accompanied by the additional payment, if any, required by Section
4.5.
(b) Amounts. Except as otherwise permitted by the Lenders from time to
time, the amount of Revolving Credit Outstandings shall not exceed at any time
the Total Revolving Credit Commitment. In the event there shall be outstanding
any such excess, the Borrower shall immediately make such payments and
prepayments as shall be necessary to comply with this restriction. Each
Revolving Loan hereunder, and each Conversion under Section 2.11 shall be in an
amount of at least $100,000, and, if greater than $100,000, an integral multiple
of $100,000.
(c) Advances. (i) An Authorized Representative shall give the Agent (1)
at least three (3) Business Days' irrevocable written notice by telefacsimile
transmission of a Borrowing Notice or Interest Rate Selection Notice (as
applicable) with appropriate insertions, effective upon receipt, of each
Revolving Loan that is a Eurodollar Rate Loan (whether representing an
additional borrowing hereunder or the Conversion of a borrowing hereunder from
Base Rate Loans to Eurodollar Rate Loans) prior to 10:30 A.M. and (2)
irrevocable written notice by telefacsimile transmission of a Borrowing Notice
or Interest Rate Selection Notice (as applicable) with appropriate insertions,
effective upon receipt, of each Revolving Loan that is a Base Rate Loan (whether
representing an additional borrowing hereunder or the Conversion of borrowing
hereunder from Eurodollar Rate Loans to Base Rate Loans) prior to 10:30 A.M. on
the day of such proposed Revolving Loan. Each such notice shall specify the
amount of the borrowing, the type of Revolving Loan (Base Rate or Eurodollar
Rate), the date of borrowing and, if a Eurodollar Rate Loan, the Interest Period
to be used in the computation of interest. Notice of receipt of such Borrowing
Notice or Interest Rate Selection Notice, as the case may be, together with the
amount of each Lender's portion of an Advance requested thereunder, shall be
provided by the Agent to each Lender by telefacsimile transmission with
reasonable promptness, but (provided the Agent shall have received such notice
by 10:30 A.M.) not later than 1:00 P.M. on the same day as the Agent's receipt
of such notice.
(ii) Not later than 2:00 P.M. on the date specified for each borrowing
under this
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Section 2.1, each Lender shall, pursuant to the terms and subject to the
conditions of this Agreement, make the amount of the Advance or Advances to be
made by it on such day available by wire transfer to the Agent in the amount of
its pro rata share, determined according to such Lender's Applicable Commitment
Percentage of the Revolving Loan or Revolving Loans to be made on such day. Such
wire transfer shall be directed to the Agent at the Principal Office and shall
be in the form of Dollars constituting immediately available funds. The amount
so received by the Agent shall, subject to the terms and conditions of this
Agreement, be made available to the Borrower by delivery of the proceeds thereof
to the Borrower's Account or otherwise as shall be directed in the applicable
Borrowing Notice by the Authorized Representative and reasonably acceptable to
the Agent.
(iii) The Borrower shall have the option to elect the duration of the
initial and any subsequent Interest Periods and to Convert the Revolving Loans
in accordance with Section 2.11. Eurodollar Rate Loans and Base Rate Loans may
be outstanding at the same time, provided, however, there shall not be
outstanding at any one time Eurodollar Rate Loans having more than five (5)
different Interest Periods. If the Agent does not receive a Borrowing Notice or
an Interest Rate Selection Notice giving notice of election of the duration of
an Interest Period or of Conversion of any Loan to or Continuation of a Loan as
a Eurodollar Rate Loan by the time prescribed by Section 2.1(c) or 2.11, the
Borrower shall be deemed to have elected to Convert such Loan to (or Continue
such Loan as) a Base Rate Loan until the Borrower notifies the Agent in
accordance with Section 2.11.
II.3. Payment of Principal.
(a) Term Loan. The principal amount of the Term Loan shall be
repaid in eight (8) consecutive quarterly installments of $1,000,000 each,
commencing on the last Business Day of March, 2004 and continuing on the last
Business Day of each fiscal quarter thereafter; provided, however, that the
entire amount of Term Loan Outstandings shall be due and payable in full on the
Term Loan Termination Date.
(b) Revolving Loans. The principal amount of each Revolving
Loan shall be due and payable to the Agent for the benefit of each Lender in
full on the Revolving Credit Termination Date, or earlier as specifically
provided herein. The principal amount of any Base Rate Loan may be prepaid in
whole or in part at any time. The principal amount of any Eurodollar Rate Loan
may be prepaid only at the end of the applicable Interest Period unless the
Borrower shall pay to the Agent for the account of the Lenders the additional
amount, if any, required under Section 4.5. All prepayments of Revolving Loans
made by the Borrower shall be in the amount of $100,000 or such greater amount
which is an integral multiple of $100,000, or the amount equal to all Revolving
Credit Outstandings, or such other amount as necessary to comply with Section
2.1(b) or Section 2.11.
II.4. Payment of Interest. (a) The Borrower shall pay interest to the
Agent for the account of each Lender on the outstanding and unpaid principal
amount of each Loan made by such Lender for the period commencing on the date of
such Loan until such Loan shall be due at the then applicable Base Rate for Base
Rate Loans or applicable Eurodollar Rate for Eurodollar
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<PAGE>
Rate Loans, as designated by the Authorized Representative pursuant to Sections
2.1 and 2.2 hereof or as otherwise provided herein; provided, however, that if
any Event of Default shall occur and be continuing, all amounts outstanding
hereunder shall bear interest thereafter at the Default Rate.
(b) Interest on each Loan shall be computed on the basis of a
year of 360 days and calculated in each case for the actual number of days
elapsed. Interest on each Loan shall be paid (i) quarterly in arrears on the
last Business Day of each December, March, June and September, commencing on the
last Business Day of March, 1999 for each Base Rate Loan, (ii) on the last day
of the applicable Interest Period for each Eurodollar Rate Loan and, if such
Interest Period extends for more than three (3) months, at intervals of three
(3) months after the first day of such Interest Period, and (iii) upon payment
in full of the principal amount of such Loan.
II.5. Manner of Payment. (a) Each payment of principal (including any
prepayment) and payment of interest and fees, and any other amount required to
be paid to the Lenders with respect to the Loans, shall be made to the Agent at
the Principal Office for the account of each Lender in Dollars in immediately
available funds without setoff, deduction or counterclaim on or before 12:30
P.M. on the date such payment is due. The Agent may, but shall not be obligated
to, debit the amount of such payment from any one or more ordinary deposit
accounts of the Borrower with the Agent.
(b) The Agent shall deem any payment made by or on behalf of
the Borrower that is not made both in Dollars in immediately available funds and
prior to 12:30 P.M. on the date such payment is to be made to be a
non-conforming payment. Any such non-conforming payment shall not be deemed to
be received by the Agent until the later of (i) the time such funds become
available funds and (ii) the next Business Day. Any non-conforming payment may
constitute or become a Default or Event of Default. Interest shall continue to
accrue on any principal as to which a non-conforming payment is made until the
later of (i) the date such funds become available funds or (ii) the next
Business Day at the Default Rate, from the date such amount was due and payable.
(c) In the event that any payment hereunder or under the Notes
becomes due and payable on a day other than a Business Day, then such due date
shall be extended to the next succeeding Business Day unless provided otherwise
under the definition of "Interest Period"; provided, however, that interest
shall continue to accrue during the period of any such extension; and provided
further, however, that in no event shall any such due date be extended beyond
the Stated Termination Date.
II.6. Optional Prepayments. The Borrower may prepay the Loans in whole
or in part from time to time on any Business Day, without penalty or premium,
upon not less than five (5) Business Days' prior written notice (effective upon
receipt) to the Agent, which notice shall be irrevocable. Any prepayment shall
be made at a prepayment price equal to (i) the amount of principal to be
prepaid, plus (ii) all accrued and unpaid interest on the amount so prepaid, to
the date of prepayment. All prepayments under this Section 2.6 shall be made in
the minimum
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principal amount of $100,000 or any integral multiple of $100,000 in excess
thereof (or in the entire remaining principal balance of the Loan being
prepaid), and all such prepayments of principal of Term Loans shall be applied
to installments of principal in inverse order of their maturities. No such
prepayment shall result in the payment of any Eurodollar Rate Loan other than on
the last day of the Interest Period of such Loan unless such prepayment is
accompanied by amounts due, if any, under Section 4.5.
II.7. Mandatory Prepayments. In addition to the required payments of
principal of the Loans set forth in Section 2.3 and any optional payments of
principal of the Loans effected under Section 2.6, the Borrower shall make the
following required prepayments of the Loans, each such payment to be made to the
Agent for the benefit of the Lenders within the time period specified below:
(a) The principal amount of the Term Loan shall be repaid from
the Net Proceeds of each Asset Disposition permitted hereunder in an amount
equal to one hundred percent (100%) of such Net Proceeds which exceed $100,000
for any single or series of related transactions; provided, however, that no
prepayment will be required under this Section 2.7(a) for up to $250,000 of Net
Proceeds received in any Fiscal Year to the extent reinvested in assets similar
to those subject to the Asset Disposition and utilized in the operating of the
Borrower's or any of its Subsidiaries' business so long as reinvested in such
Fiscal Year or within 90 days of the end of such Fiscal Year. Each such
prepayment is to be made within ten (10) Business Days following the expiration
of the 90 day period referred to in the preceding sentence and upon not less
than five (5) Business Days written notice to the Agent, which notice shall
include a certificate of an Authorized Representative setting forth in detail
the calculations utilized in computing the amount of such prepayment.
(b) The Agent shall give each Lender, within one (1) Business
Day, telefacsimile notice of each notice of prepayment described in clause (a)
of this Section 2.7. All mandatory prepayments made pursuant to this Section 2.7
shall be applied to installments of principal in inverse order of their
maturities (as adjusted to give effect to any prior payments or prepayments of
principal). Any prepayment of a Eurodollar Rate Loan constituting a part of the
Term Loan pursuant to this Section 2.7 other than on the last day of an Interest
Period shall be accompanied by the additional payment, if any, required by
Section 4.5. If such Net Proceeds to be applied to Term Loan Outstandings
pursuant to this Section 2.7 shall be greater than the amount of Term Loan
Outstandings, then the Revolving Loan Outstandings and the Revolving Credit
Commitment shall be permanently reduced by the amount of such excess.
(c) The Borrower shall make permanent reductions in the Total
Revolving Credit Commitment and permanent prepayments of the Revolving Credit
Outstandings from the Net Proceeds of any Asset Disposition in excess of Term
Loan Outstandings after application of such Net Proceeds to the Term Loan
Outstandings pursuant to Section 2.7(b) above, each such reduction and
prepayment to be made within the time specified in Section 2.7(b).
(d) The Total Revolving Commitment shall be permanently
reduced by $750,000 on the last Business Day of each fiscal quarter commencing
on the last Business Day of
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March, 2001 and continuing on the last Business Day of each fiscal quarter
thereafter until the Revolving Credit Termination Date.
II.8. Notes. Loans made by each Lender shall be evidenced by, and be
repayable with interest in accordance with the terms of, the promissory notes
payable to the order of such Lender in the respective amounts of (i) in the case
of a Term Note, its Term Loan Commitment, and (ii) in the case of a Revolving
Note, its Applicable Commitment Percentage of the Revolving Credit Commitment,
which Notes shall be dated the Closing Date or a later date pursuant to an
Assignment and Acceptance and shall be duly completed, executed and delivered by
the Borrower.
II.9. Pro Rata Payments. Except as otherwise provided herein, (a) each
payment on account of the principal of and interest on the Revolving Loans and
the fees described in Section 2.13 shall be made to the Agent for the account of
the Lenders pro rata based on their Applicable Commitment Percentages, (b) all
payments to be made by the Borrower for the account of each of the Lenders on
account of principal, interest and fees, shall be made without diminution,
setoff, recoupment or counterclaim, and (c) the Agent will promptly distribute
to the Lenders in immediately available funds payments received in fully
collected, immediately available funds from the Borrower.
II.10. Reductions. The Borrower shall, by notice from an Authorized
Representative, have the right from time to time but not more frequently than
once each calendar month, upon not less than five (5) Business Days' written
notice to the Agent, effective upon receipt, to reduce the Total Revolving
Credit Commitment. The Agent shall give each Lender, within one (1) Business Day
of receipt of such notice, telefacsimile notice, or telephonic notice (confirmed
in writing), of such reduction. Each such reduction shall be in the aggregate
amount of $100,000 or such greater amount which is in an integral multiple of
$100,000, or the entire remaining Total Revolving Credit Commitment, and shall
permanently reduce the Total Revolving Credit Commitment. Each reduction of the
Total Revolving Credit Commitment shall be accompanied by payment of the
Revolving Loans to the extent that the principal amount of Revolving Credit
Outstandings exceeds the Total Revolving Credit Commitment after giving effect
to such reduction, together with accrued and unpaid interest on the amounts
prepaid. No such reduction shall result in the payment of any Eurodollar Rate
Loan other than on the last day of the Interest Period of such Eurodollar Rate
Loan unless such prepayment is accompanied by amounts due, if any, under Section
4.5.
II.11. Conversions and Elections of Subsequent Interest Periods.
Subject to the limitations set forth below and in Article IV, the Borrower may:
(a) upon delivery, effective upon receipt, of a properly
completed Interest Rate Selection Notice to the Agent on or before 10:30 A.M. on
any Business Day, Convert all or a part of Eurodollar Rate Loans under the
Revolving Credit Facility to Base Rate Loans on the last day of the Interest
Period for such Eurodollar Rate Loans; and
(b) provided that no Default or Event of Default shall have
occurred and be
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continuing, upon delivery, effective upon receipt, of a properly completed
Interest Rate Selection Notice to the Agent on or before 10:30 A.M. three (3)
Business Days' prior to the date of such election or Conversion:
(i) elect a subsequent Interest Period for all or a
portion of Eurodollar Rate Loans under either the Revolving
Credit Facility or the Term Loan to begin on the last day of
the then current Interest Period for such Eurodollar Rate
Loans; and
(ii) Convert Base Rate Loans under the Revolving
Credit Facility to Eurodollar Rate Loans on any Business Day.
Each election and Conversion pursuant to this Section 2.11 shall be
subject to the limitations on Eurodollar Rate Loans set forth in the definition
of "Interest Period" herein and in Sections 2.1, 2.2 and Article IV. The Agent
shall give written notice to each Lender of such notice of election or
Conversion prior to 3:00 P.M. on the day such notice of election or Conversion
is received. All such Continuations or Conversions of Loans shall be effected
pro rata based on the Applicable Commitment Percentages of the Lenders.
II.12. Increase and Decrease in Amounts. The amount of the Total
Revolving Credit Commitment which shall be available to the Borrower as Advances
shall be reduced by the aggregate amount of Revolving Credit Outstandings.
II.13. Facility Fees. For the period beginning on the Closing Date and
ending on the Revolving Credit Termination Date, the Borrower agrees to pay to
the Agent, for the pro rata benefit of the Lenders based on their Applicable
Commitment Percentages, an unused fee equal to the Applicable Unused Fee
multiplied by the average daily amount by which the Total Revolving Credit
Commitment exceeds the sum of Revolving Credit Outstandings. Such fees shall be
due in arrears on the last Business Day of each December, March, June and
September commencing March 31, 1999 to and on the Revolving Credit Termination
Date. Notwithstanding the foregoing, so long as any Lender fails to make
available any portion of its Revolving Credit Commitment when requested, the
Borrower shall not be required to make, nor shall such Lender be entitled to
receive, payment of the pro rata portion of such fee related to such portion
until such Lender shall make available such portion. Such fee shall be
calculated on the basis of a year of 360 days for the actual number of days
elapsed.
II.14. Deficiency Advances. No Lender shall be responsible for any
default of any other Lender in respect to such other Lender's obligation to make
any Loan hereunder nor shall the Revolving Credit Commitment of any Lender
hereunder be increased as a result of such default of any other Lender. Without
limiting the generality of the foregoing, in the event any Lender shall fail to
advance funds to the Borrower as herein provided, the Agent may in its
discretion, but shall not be obligated to, advance under the applicable Note in
its favor as a Lender all or any portion of such amount or amounts (each, a
"deficiency advance") and shall thereafter be entitled to payments of principal
of and interest on such deficiency advance in the same manner and at the same
interest rate or rates to which such other Lender would have been entitled had
it made
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such Advance under its Note; provided that, (i) such defaulting Lender shall not
be entitled to receive payments of principal, interest or fees with respect to
such deficiency advance until such deficiency advance shall be paid by such
Lender and (ii) upon payment to the Agent from such other Lender of the entire
outstanding amount of each such deficiency advance, together with accrued and
unpaid interest thereon, from the most recent date or dates interest was paid to
the Agent by the Borrower on each Loan comprising the deficiency advance at the
interest rate per annum for overnight borrowing by the Agent from the Federal
Reserve Bank, then such payment shall be credited against the applicable Note of
the Agent in full payment of such deficiency advance and the Borrower shall be
deemed to have borrowed the amount of such deficiency advance from such other
Lender as of the most recent date or dates, as the case may be, upon which any
payments of interest were made by the Borrower thereon.
II.15. Use of Proceeds. The proceeds of the Loans made hereunder shall
be used by the Borrower to finance the FJC Acquisition, to finance the Boylan
Investment, the making of Acquisitions and Capital Expenditures permitted
hereunder and for general working capital needs.
ARTICLE III
Security
--------
III.1. Security. As security for the full and timely payment and
performance of all Obligations, the Credit Parties shall on or before the
Closing Date deliver to the Agent, in form and substance reasonably acceptable
to the Agent, the Security Instruments (other than the Boylan Investment
Documents Pledge Agreement), and such duly executed Uniform Commercial Code
financing statements sufficient to grant to the Agent for the benefit of the
Lenders a duly perfected first priority security interest in all Collateral
subject to no prior Lien or other encumbrance or restriction on transfer (other
than restrictions on transfer imposed by applicable securities laws) and Liens
permitted hereunder. Contemporaneously with the making of the Boylan Investment,
the Borrower shall deliver to the Agent the Boylan Investment Documents Pledge
Agreement and the Boylan Investment Documents in order to create and perfect a
first priority Lien in the Boylan Investment Documents as security for full and
timely payment and performance of all Obligations now existing or hereafter
arising.
III.2. Stock Pledge. As security for the full and timely payment and
performance of all Obligations now existing or hereafter arising, and certain
Guarantors' obligations under the Facility Guaranty, the Borrower and each
Subsidiary owning any Pledged Stock shall on or before the Closing Date deliver
to the Agent, in form and substance reasonably acceptable to the Agent, the
Stock Pledge Agreement together with certificates representing such Pledged
Stock and such stock powers duly executed in blank as may be required by the
Agent in accordance with the terms hereof and thereof. In addition to any Stock
Pledge Agreement required to be delivered pursuant to Section 7.20 hereof, the
Borrower and each Subsidiary hereby agrees to pledge to the Agent for the
benefit of the Lenders 100% of the capital stock and related interests and
rights of any Subsidiary hereafter acquired or created, and in each case, to
deliver to the
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Agent a Stock Pledge Agreement substantially in the form of Exhibit K hereto
within thirty (30) days of the acquisition or creation of such Subsidiary.
III.3. Facility Guaranty. The Borrower shall cause the Facility
Guaranty to be delivered on or before the Closing Date by each Subsidiary, in
form and substance reasonably acceptable to the Agent. The Borrower hereby
agrees to cause a Facility Guaranty to be delivered by any hereafter acquired,
created or arising Subsidiary to the extent such action would not result in any
material adverse tax impact on the Borrower.
III.4. Further Assurances. At the request of the Agent, the Borrower
will or will cause its Subsidiaries, as the case may be to execute, by its duly
authorized officers, alone or with the Agent, any certificate, instrument,
statement or document, or to procure any such certificate, instrument, statement
or document, or to take such other action (and pay all connected reasonable
costs) which the Agent reasonably deems necessary from time to time to create,
continue or preserve the liens and security interests in Collateral (and the
perfection and priority thereof) of the Agent contemplated hereby and by the
other Loan Documents.
III.5. Information Regarding Collateral. The Borrower represents,
warrants and covenants that (i) the principal executive office of the Borrower
and each other Person providing Collateral pursuant to a Security Instrument
(each, a "Grantor") at the Closing Date is located at the address or addresses
specified on Schedule 3.5, and (ii) Schedule 3.5 contains a true and complete
list of (a) the name and address of each Grantor and of each other Person that
has effected any merger or consolidation with a Grantor or contributed or
transferred to a Grantor any significant portion of its assets constituting
Collateral at any time since January 1, 1993 (excluding Persons making sales in
the ordinary course of their businesses to a Grantor of property constituting
inventory in the hands of such seller), (b) each location of the principal
executive office of each Grantor at any time since January 1, 1993, (c) each
location in which goods constituting Collateral are or have been located since
January 1, 1993 (together with the name of each owner of the property located at
such address if not the applicable Grantor, and a summary description of the
relationship between the applicable Grantor and such Person), and (d) each trade
style used by any Grantor since January 1, 1993 and the purposes for which it
was used. Borrower shall not change, and shall not permit any other Grantor to
change, the location of its principal executive office or any location specified
in clause (c) of the immediately preceding sentence, or use or permit any other
Grantor to use, any additional trade style, except upon giving not less than
thirty (30) days' prior written notice to the Agent and taking or causing to be
taken all such action at Borrower's or such other Grantor's expense as may be
reasonably requested by the Agent to perfect or maintain the perfection of the
Lien of the Agent in Collateral.
III.6. Mortgages. As security for the full and timely payment and
performance of (i) all Obligations now existing or hereafter arising and (ii) if
applicable, the Guarantors' Obligations under the Facility Guaranty, the
Borrower shall, and shall cause each Subsidiary to, on or before the Closing
Date deliver to the Agent, in form and substance reasonably acceptable to the
Agent, the Mortgages. The Mortgages shall be delivered on or before the Closing
Date and thereafter as any new or additional real property is acquired by the
Borrower or any existing
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or hereafter acquired or created Subsidiary.
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ARTICLE IV
Change in Circumstances
-----------------------
IV.1. Increased Cost and Reduced Return.
----------------------------------
(a) If, after the date hereof, the adoption of any applicable law,
rule, or regulation, or any change in any applicable law, rule, or regulation,
or any change in the interpretation or administration thereof by any
governmental authority, central bank, or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender (or its
Applicable Lending Office) with any request or directive (whether or not having
the force of law) of any such governmental authority, central bank, or
comparable agency:
(i) shall subject such Lender (or its Applicable Lending
Office) to any tax, duty, or other charge with respect to any
Eurodollar Rate Loans, its Note, or its obligation to make Eurodollar
Rate Loans, or change the basis of taxation of any amounts payable to
such Lender (or its Applicable Lending Office) under this Agreement or
its Note in respect of any Eurodollar Rate Loans (other than taxes
imposed on the overall net income of such Lender by the jurisdiction in
which such Lender has its principal office or such Applicable Lending
Office);
(ii) shall impose, modify, or deem applicable any
reserve, special deposit, assessment, or similar requirement (other
than the Reserve Requirement utilized in the determination of the
Eurodollar Rate) relating to any extensions of credit or other assets
of, or any deposits with or other liabilities or commitments of, such
Lender (or its Applicable Lending Office), including the Term Loan
Commitment or Revolving Credit Commitment of such Lender hereunder; or
(iii) shall impose on such Lender (or its Applicable
Lending Office) or on the London interbank market any other condition
affecting this Agreement or its Note or any of such extensions of
credit or liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such Lender
(or its Applicable Lending Office) of making, Converting into, Continuing, or
maintaining any Loans or to reduce any sum received or receivable by such Lender
(or its Applicable Lending Office) under this Agreement or its Note with respect
to any Eurodollar Rate Loans, then the Borrower shall pay to such Lender on
demand such amount or amounts as will compensate such Lender for such increased
cost or reduction. If any Lender requests compensation by the Borrower under
this Section 4.1(a), the Borrower may, by notice to such Lender (with a copy to
the Agent), suspend the obligation of such Lender to make or Continue Loans of
the Type with respect to which such compensation is requested, or to Convert
Loans of any other Type into Loans of such Type, until the event or condition
giving rise to such request ceases to be in effect (in which case the provisions
of Section 4.4 shall be applicable); provided that such suspension shall not
affect the right of such Lender to receive the compensation so requested.
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(b) If, after the date hereof, any Lender shall have determined that
the adoption of any applicable law, rule, or regulation regarding capital
adequacy or any change therein or in the interpretation or administration
thereof by any governmental authority, central bank, or comparable agency
charged with the interpretation or administration thereof, or any request or
directive regarding capital adequacy (whether or not having the force of law) of
any such governmental authority, central bank, or comparable agency, has or
would have the effect of reducing the rate of return on the capital of such
Lender or any corporation controlling such Lender as a consequence of such
Lender's obligations hereunder to a level below that which such Lender or such
corporation could have achieved but for such adoption, change, request, or
directive (taking into consideration its policies with respect to capital
adequacy), then from time to time upon demand the Borrower shall pay to such
Lender such additional amount or amounts as will compensate such Lender for such
reduction.
(c) Each Lender shall promptly notify the Borrower and the Agent of any
event of which it has knowledge, occurring after the date hereof, which will
entitle such Lender to compensation pursuant to this Section 4.1 and will
designate a different Applicable Lending Office if such designation will avoid
the need for, or reduce the amount of, such compensation and will not, in the
judgment of such Lender, be otherwise disadvantageous to it. Any Lender claiming
compensation under this Section 4.1 shall furnish to the Borrower and the Agent
a statement setting forth the additional amount or amounts to be paid to it
hereunder which shall be conclusive in the absence of manifest error. In
determining such amount, such Lender may use any reasonable averaging and
attribution methods.
IV.2. Limitation on Types of Loans. If on or prior to the first day of
any Interest Period for any Eurodollar Rate Loan:
(a) the Agent determines (which determination shall be
conclusive) that by reason of circumstances affecting the relevant
market, adequate and reasonable means do not exist for ascertaining the
Eurodollar Rate for such Interest Period; or
(b) the Required Lenders determine (which determination shall
be conclusive) and notify the Agent that the Eurodollar Rate will not
adequately and fairly reflect the cost to the Lenders of funding
Eurodollar Rate Loans for such Interest Period;
then the Agent shall give the Borrower prompt notice thereof specifying the
relevant Type of Loans and the relevant amounts or periods, and so long as such
condition remains in effect, the Lenders shall be under no obligation to make
additional Loans of such Type, Continue Loans of such Type, or to Convert Loans
of any other Type into Loans of such Type and the Borrower shall, on the last
day(s) of the then current Interest Period(s) for the outstanding Loans of the
affected Type, either prepay such Loans or Convert such Loans into another Type
of Loan in accordance with the terms of this Agreement.
IV.3. Illegality. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Lender or its
Applicable Lending Office to make, maintain, or fund Eurodollar Rate Loans
hereunder, then such Lender shall promptly notify the Borrower
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thereof and such Lender's obligation to make or Continue Eurodollar Rate Loans
and to Convert other Types of Loans into Eurodollar Rate Loans shall be
suspended until such time as such Lender may again make, maintain, and fund
Eurodollar Rate Loans (in which case the provisions of Section 4.4 shall be
applicable).
IV.4. Treatment of Affected Loans. If the obligation of any Lender to
make a Eurodollar Rate Loan or to Continue, or to Convert Loans of any other
Type into, Loans of a particular Type shall be suspended pursuant to Section 4.1
or 4.3 hereof (Loans of such Type being herein called "Affected Loans" and such
Type being herein called the "Affected Type"), such Lender's Affected Loans
shall be automatically Converted into Base Rate Loans on the last day(s) of the
then current Interest Period(s) for Affected Loans (or, in the case of a
Conversion required by Section 4.3 hereof, on such earlier date as such Lender
may specify to the Borrower with a copy to the Agent) and, unless and until such
Lender gives notice as provided below that the circumstances specified in
Section 4.1 or 4.3 hereof that gave rise to such Conversion no longer exist:
(a) to the extent that such Lender's Affected Loans have been
so Converted, all payments and prepayments of principal that would
otherwise be applied to such Lender's Affected Loans shall be applied
instead to its Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by
such Lender as Loans of the Affected Type shall be made or Continued
instead as Base Rate Loans, and all Loans of such Lender that would
otherwise be Converted into Loans of the Affected Type shall be
Converted instead into (or shall remain as) Base Rate Loans.
If such Lender gives notice to the Borrower (with a copy to the Agent) that the
circumstances specified in Section 4.1 or 4.3 hereof that gave rise to the
Conversion of such Lender's Affected Loans pursuant to this Section 4.4 no
longer exist (which such Lender agrees to do promptly upon such circumstances
ceasing to exist) at a time when Loans of the Affected Type made by other
Lenders are outstanding, such Lender's Base Rate Loans shall be automatically
Converted, on the first day(s) of the next succeeding Interest Period(s) for
such outstanding Loans of the Affected Type, to the extent necessary so that,
after giving effect thereto, all Loans held by the Lenders holding Loans of the
Affected Type and by such Lender are held pro rata (as to principal amounts,
Types, and Interest Periods) in accordance with their respective Term Loan and
Revolving Credit Commitment
IV.5. Compensation. Upon the request of any Lender, the Borrower shall
pay to such Lender such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender) to compensate it for any loss, cost, or
expense (including loss of anticipated profits) incurred by it as a result of:
(a) any payment, prepayment, or Conversion of a Eurodollar
Rate Loan for any reason (including, without limitation, the
acceleration of the Loans pursuant to Section 9.1) on a date other than
the last day of the Interest Period for such Loan; or
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(b) any failure by the Borrower for any reason (including,
without limitation, the failure of any condition precedent specified in
Article V to be satisfied) to borrow, Convert, Continue, or prepay a
Eurodollar Rate Loan on the date for such borrowing, Conversion,
Continuation, or prepayment specified in the relevant notice of
borrowing, prepayment, Continuation, or Conversion under this
Agreement.
IV.6. Taxes. (a) Any and all payments by the Borrower to or for the
account of any Lender or the Agent hereunder or under any other Loan Document
shall be made free and clear of and without deduction for any and all present or
future taxes, duties, levies, imposts, deductions, charges or withholdings, and
all liabilities with respect thereto, excluding, in the case of each Lender and
the Agent, taxes imposed on its income, and franchise taxes imposed on it, by
the jurisdiction under the laws of which such Lender (or its Applicable Lending
Office) or the Agent (as the case may be) is organized or any political
subdivision thereof (all such non-excluded taxes, duties, levies, imposts,
deductions, charges, withholdings, and liabilities being hereinafter referred to
as "Taxes"). If the Borrower shall be required by law to deduct any Taxes from
or in respect of any sum payable under this Agreement or any other Loan Document
to any Lender or the Agent, (i) the sum payable shall be increased as necessary
so that after making all required deductions (including deductions applicable to
additional sums payable under this Section 4.6) such Lender or the Agent
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions, (iii) the
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law, and (iv) the Borrower
shall furnish to the Agent, at its address referred to in Section 11.2, the
original or a certified copy of a receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any and all present or
future stamp or documentary taxes and any other excise or property taxes or
charges or similar levies which arise from any payment made under this Agreement
or any other Loan Document or from the execution or delivery of, or otherwise
with respect to, this Agreement or any other Loan Document (hereinafter referred
to as "Other Taxes").
(c) The Borrower agrees to indemnify each Lender and the Agent for the
full amount of Taxes and Other Taxes (including, without limitation, any Taxes
or Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section 4.6) paid by such Lender or the Agent (as the case may be) and any
liability (including penalties, interest, and expenses) arising therefrom or
with respect thereto.
(d) Each Lender organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Lender listed on the signature pages hereof and on
or prior to the date on which it becomes a Lender in the case of each other
Lender, and from time to time thereafter if requested in writing by the Borrower
or the Agent (but only so long as such Lender remains lawfully able to do so),
shall provide the Borrower and the Agent with (i) Internal Revenue Service Form
1001 or 4224, as appropriate, or any successor form prescribed by the Internal
Revenue Service, certifying that such Lender is entitled to benefits under an
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income tax treaty to which the United States is a party which reduces the rate
of withholding tax on payments of interest or certifying that the income
receivable pursuant to this Agreement is effectively connected with the conduct
of a trade or business in the United States, (ii) Internal Revenue Service Form
W-8 or W-9, as appropriate, or any successor form prescribed by the Internal
Revenue Service, and (iii) any other form or certificate required by any taxing
authority (including any certificate required by Sections 871(h) and 881(c) of
the Internal Revenue Code), certifying that such Lender is entitled to an
exemption from or a reduced rate of tax on payments pursuant to this Agreement
or any of the other Loan Documents.
(e) For any period with respect to which a Lender has failed to provide
the Borrower and the Agent with the appropriate form pursuant to Section 4.6(d)
(unless such failure is due to a change in treaty, law, or regulation occurring
subsequent to the date on which a form originally was required to be provided),
such Lender shall not be entitled to indemnification under Section 4.6(a) or
4.6(b) with respect to Taxes imposed by the United States; provided, however,
that should a Lender, which is otherwise exempt from or subject to a reduced
rate of withholding tax, become subject to Taxes because of its failure to
deliver a form required hereunder, the Borrower shall take such steps as such
Lender shall reasonably request to assist such Lender to recover such Taxes.
(f) If the Borrower is required to pay additional amounts to or for the
account of any Lender pursuant to this Section 4.6, then such Lender will agree
to use reasonable efforts to change the jurisdiction of its Applicable Lending
Office so as to eliminate or reduce any such additional payment which may
thereafter accrue if such change, in the judgment of such Lender, is not
otherwise disadvantageous to such Lender.
(g) Within thirty (30) days after the date of any payment of Taxes, the
Borrower shall furnish to the Agent the original or a certified copy of a
receipt evidencing such payment.
(h) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 4.6 shall survive the termination of the Revolving Credit
Commitment and Term Loan Commitment and the payment in full of the Notes.
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ARTICLE V
Conditions to Making Loans
--------------------------
V.1. Conditions of Term Loan and Initial Advance. The obligation of the
Lenders to make the Term Loan and the initial Advance under the Revolving Credit
Facility is subject to the conditions precedent that:
(a) the Agent shall have received on or before the Closing
Date, in form and substance satisfactory to the Agent and Lenders, the
following:
(i) executed originals of each of this Agreement, the
Notes, the initial Facility Guaranties, the Security
Instruments, the other Loan Documents, together with all
schedules and exhibits thereto;
(ii) the favorable written opinion or opinions with
respect to the Loan Documents and the transactions
contemplated thereby of counsel to the Credit Parties dated
the Closing Date, addressed to the Agent and the Lenders and
satisfactory to Smith Helms Mulliss & Moore, L.L.P., special
counsel to the Agent, substantially in the form of Exhibit G;
(iii) resolutions of the boards of directors or other
appropriate governing body (or of the appropriate committee
thereof) of each Credit Party certified by its secretary or
assistant secretary as of the Closing Date, approving and
adopting the Loan Documents to be executed by such Person, and
authorizing the execution and delivery thereof;
(iv) specimen signatures of officers of each of the
Credit Parties executing the Loan Documents on behalf of such
Credit Party, certified by the secretary or assistant
secretary of such Credit Party;
(v) the Organizational Documents of each of the
Credit Parties certified as of a recent date by the Secretary
of State of its state of organization;
(vi) Operating Documents of each of the Credit Parties
certified as of the Closing Date as true and correct by its
secretary or assistant secretary;
(vii) certificates issued as of a recent date by the
Secretaries of State of the respective jurisdictions of
formation of each of the Credit Parties as to the due
existence and good standing of such Person;
(viii) appropriate certificates of qualification to do
business, good standing and, where appropriate, authority to
conduct business under assumed name, issued in respect of each
of the Credit Parties as of a recent date by the
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Secretary of State or comparable official of each jurisdiction
in which the failure to be qualified to do business or
authorized so to conduct business could have a Material
Adverse Effect;
(ix) notice of appointment of the initial Authorized
Representative(s);
(x) evidence of all insurance required by the Loan
Documents;
(xi) an initial Borrowing Notice, if any, and, if
elected by the Borrower, Interest Rate Selection Notice;
(xii) evidence of the filing of Uniform Commercial Code
financing statements reflecting the filing in all places
required by applicable law to perfect the Liens of the Agent
under the Security Instruments as a first priority Lien as to
items of Collateral in which a security interest may be
perfected by the filing of financing statements, and such
other documents and/or evidence of other actions as may be
necessary under applicable law to perfect the Liens of the
Agent under the Security Instruments as a first priority Lien
in and to such other Collateral as the Agent may require,
including without limitation: (i) the delivery by the Borrower
of all stock certificates evidencing Pledged Stock accompanied
in each case by duly executed stock powers (or other
appropriate transfer documents) in blank affixed thereto; and
(xiii) commitments for policies insuring title to the
properties described in the Mortgages, acceptable in form and
substance to the Agent;
(xiv) copies of title exceptions with respect to the
properties described in the Mortgages, acceptable in form and
substance to the Agent;
(xv) to the extent they currently exist, surveys for
the owned real property of the Borrower and its Subsidiaries;
(xvi) flood certificates and evidence of flood
insurance for any properties described in the Mortgages in a
federally designated flood zone;
(xvii) owner's affidavit for each of the properties
described in the Mortgages;
(xviii) an environmental audit with respect to the
owned property of the Borrower and its Subsidiaries and other
environmental information as reasonably requested by the Agent
and with results satisfactory to the Agent;
(xix) evidence that all fees payable by the Borrower on
the Closing Date to the Agent, NMS and the Lenders have been
paid in full;
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(xx) Uniform Commercial Code search results showing
only those Liens as are acceptable to the Lenders;
(xxi) copies certified by the Borrower of employment
contracts with the Key Employees, each such to contain terms
satisfactory to the Agent;
(xxii) collateral assignment of original life insurance
policies on the lives of Prever and Heavirland with coverages
in amounts of not less than $4,000,000 and $2,000,000,
respectively, such policies to name the Borrower as
beneficiary;
(xxiii) such other documents, instruments, certificates
and opinions as the Agent or any Lender may reasonably request
on or prior to the Closing Date in connection with the
consummation of the transactions contemplated hereby;
(xxiv) copies certified by the Borrower of the
Subordinated Notes, together with all documents executed by
the Borrower in connection therewith; and
(xxv) a copy certified by the Borrower of the FJC
Acquisition Agreement and evidence satisfactory to the Agent
of the consummation of the FJC Acquisition.
(b) In the good faith judgment of the Agent and the Lenders:
(i) there shall not have occurred or become known to
the Agent or the Lenders any event, condition, situation or
status since the date of the information contained in the
financial and business projections, budgets, pro forma data
and forecasts concerning the Borrower and its Subsidiaries
delivered to the Agent prior to the Closing Date that has had
or could reasonably be expected to result in a Material
Adverse Effect;
(ii) other than as set forth in Schedule 6.10, no
litigation, action, suit, investigation or other arbitral,
administrative or judicial proceeding shall be pending or
threatened which could reasonably be likely to result in a
Material Adverse Effect; and
(iii) the Credit Parties shall have received all
approvals, consents and waivers, and shall have made or given
all necessary filings and notices as shall be required to
consummate the transactions contemplated hereby without the
occurrence of any default under, conflict with or violation of
(A) any applicable law, rule, regulation, order or decree of
any Governmental Authority or arbitral authority or (B) any
agreement, document or instrument
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to which any of the Loan Parties is a party or by which any of
them or their properties is bound.
V.2. Conditions of Revolving Loans. The obligations of the Lenders
to make any Revolving Loans hereunder on or subsequent to the Closing Date are
subject to the satisfaction of the following conditions:
(a) the Agent shall have received a Borrowing Notice if
required by Article II;
(b) the representations and warranties of the Credit Parties
set forth in Article VI and in each of the other Loan Documents shall
be true and correct in all material respects on and as of the date of
such Advance, with the same effect as though such representations and
warranties had been made on and as of such date, except to the extent
that such representations and warranties expressly relate to an earlier
date and except that the financial statements referred to in Section
6.6(a)(i) shall be deemed to be those financial statements most
recently delivered to the Agent and the Lenders pursuant to Section 7.1
from the date financial statements are delivered to the Agent and the
Lenders in accordance with such Section;
(c) at the time of (and after giving effect to) each Advance,
no Default or Event of Default specified in Article IX shall have
occurred and be continuing; and
(d) immediately after giving effect to:
(i) a Revolving Loan, the aggregate principal balance
of all outstanding Revolving Loans for each Lender shall not
exceed such Lender's Revolving Credit Commitment;
(ii) a Revolving Loan and prior to satisfaction of the
requirements set forth in Section 7.25 hereof, Revolving
Credit Outstandings plus Hansens Notes Outstandings shall not
exceed the Total Revolving Credit Commitment; and
(iii) a Revolving Loan and after satisfaction of the
requirements set forth in Section 7.25 hereof, Revolving
Credit Outstandings shall not exceed the Total Revolving
Credit Commitment.
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ARTICLE VI
Representations and Warranties
------------------------------
The Borrower represents and warrants with respect to itself and to its
Subsidiaries (which representations and warranties shall survive the delivery of
the documents mentioned herein and the making of Loans), that:
VI.1. Organization and Authority.
(a) The Borrower and each Subsidiary is a corporation duly
organized and validly existing under the laws of the jurisdiction of
its formation;
(b) The Borrower and each Subsidiary (x) has the requisite
power and authority to own its properties and assets and to carry on
its business as now being conducted and as contemplated in the Loan
Documents, and (y) is qualified to do business in every jurisdiction in
which its ownership or lease of property or the nature of its business
makes such qualification necessary;
(c) The Borrower has the power and authority to execute,
deliver and perform this Agreement and the Notes, and to borrow
hereunder, and to execute, deliver and perform each of the other Loan
Documents to which it is a party;
(d) Each Credit Party (other than the Borrower) has the power
and authority to execute, deliver and perform the Facility Guaranty and
each of the other Loan Documents to which it is a party;
(e) When executed and delivered, each of the Loan Documents to
which any Credit Party is a party will be the legal, valid and binding
obligation or agreement, as the case may be, of such Credit Party,
enforceable against such Credit Party in accordance with its terms,
subject to the effect of any applicable bankruptcy, moratorium,
insolvency, reorganization or other similar law affecting the
enforceability of creditors' rights generally and to the effect of
general principles of equity (whether considered in a proceeding at law
or in equity); and
(f) Each Inactive Subsidiary is a corporation duly organized
under the laws of the jurisdiction of its formation, and no Inactive
Subsidiary owns any assets or conducts any business;
VI.2. Loan Documents. The execution, delivery and performance by
each Credit Party of each of the Loan Documents to which it is a party:
(a) have been duly authorized by all requisite Organizational
Action of such Credit Party required for the lawful execution, delivery
and performance thereof;
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(b) do not violate any provisions of (i) applicable law, rule
or regulation, (ii) any judgment, writ, order, determination, decree or
arbitral award of any Governmental Authority or arbitral authority
binding on such Credit Party or its properties, or (iii) the
Organizational Documents or Operating Documents of such Credit Party;
(c) does not and will not be in conflict with, result in a
breach of or constitute an event of default, or an event which, with
notice or lapse of time or both, would constitute an event of default,
under any contract, indenture, agreement or other instrument or
document to which such Credit Party is a party, or by which the
properties or assets of such Credit Party are bound; and
(d) does not and will not result in the creation or imposition
of any Lien upon any of the properties or assets of such Credit Party
or any Subsidiary except any Liens in favor of the Agent and the
Lenders created by the Security Instruments;
VI.3. Solvency. Each Credit Party is Solvent after giving effect to
the transactions contemplated by the Loan Documents;
VI.4. Subsidiaries and Stockholders. The Borrower has no Subsidiaries
other than those Persons listed as Subsidiaries in Schedule 6.4 and additional
Subsidiaries created or acquired after the Closing Date in compliance with
Section 7.20; Schedule 6.4 states as of the date hereof the organizational form
of each entity, the authorized and issued capitalization of each Subsidiary
listed thereon, the number of shares or other equity interests of each class of
capital stock or interest issued and outstanding of each such Subsidiary and the
number and/or percentage of outstanding shares or other equity interest
(including options, warrants and other rights to acquire any interest) of each
such class of capital stock or other equity interest owned by Borrower or by any
such Subsidiary; the outstanding shares or other equity interests of each such
Subsidiary have been duly authorized and validly issued and are fully paid and
nonassessable; and Borrower and each such Subsidiary owns beneficially and of
record all the shares and other interests it is listed as owning in Schedule
6.4, free and clear of any Lien;
VI.5. Ownership Interests. Borrower owns no interest in any Person
other than the Persons listed in Schedule 6.4, equity investments in Persons not
constituting Subsidiaries permitted under Section 8.7 and additional
Subsidiaries created or acquired after the Closing Date in compliance with
Section 7.20;
VI.6. Financial Condition.
(a) The Borrower has heretofore furnished to each Lender an
audited consolidated and related consolidating balance sheet of the
Borrower and its Subsidiaries as December 31, 1997 and the notes
thereto and the related consolidated statements of income,
stockholders' equity and cash flows for the Fiscal Year then ended as
examined and certified by PricewaterhouseCoopers, L.L.P., and unaudited
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consolidated and consolidating interim financial statements of the
Borrower and its Subsidiaries consisting of a consolidated and
consolidating balance sheets and related consolidated and consolidating
statements of income, stockholders' equity and cash flows, in each case
without notes, for and as of the end of the nine (9) month period
ending September 30, 1998. Except as set forth therein, such financial
statements (including the notes thereto) present fairly the financial
condition of the Borrower and its Subsidiaries as of the end of such
Fiscal Year and nine (9) month period and results of their operations
and the changes in its stockholders' equity for the Fiscal Year and
interim period then ended, all in conformity with GAAP applied on a
Consistent Basis, subject however, in the case of unaudited interim
statements to year end audit adjustments;
(b) The Borrower has heretofore furnished to each Lender an
audited balance sheet of each of FJC and its Subsidiaries, as at their
most recent fiscal year ends and the notes thereto and the related
statements of income, stockholders' equity and cash flows for the
Fiscal Year then ended as examined and certified by independent public
accountants, and unaudited consolidated interim financial statements of
FJC and its Subsidiaries consisting of consolidated balance sheets and
related consolidated statements of income, stockholders' equity and
cash flows, in each case without notes, for the most recently ended
quarterly period for which financial statements are available. Except
as set forth therein, such financial statements (including the notes
thereto) present fairly the financial condition of each of FJC and its
Subsidiaries as of the end of such Fiscal Year and quarterly period and
results of their operations and the changes in its stockholders' equity
for the Fiscal Year and interim period then ended, all in conformity
with GAAP applied on a Consistent Basis, subject however, in the case
of unaudited interim statements to year end audit adjustments;
(c) since the later of (i) the date of the audited financial
statements delivered pursuant to Section 6.6(a) hereof or (ii) the date
of the audited financial statements most recently delivered pursuant to
Section 7.1(a) hereof, there has been no material adverse change in the
condition, financial or otherwise, of the Borrower or any of its
Subsidiaries or in the businesses, properties, performance, prospects
or operations of the Borrower or its Subsidiaries, nor have such
businesses or properties been materially adversely affected as a result
of any fire, explosion, earthquake, accident, strike, lockout,
combination of workers, flood, embargo or act of God; and
(d) except as set forth in the financial statements referred
to in Section 6.6(a) or permitted by Section 8.5, neither Borrower nor
any Subsidiary has incurred, other than in the ordinary course of
business, any material Indebtedness, Contingent Obligation or other
commitment or liability which remains outstanding or unsatisfied;
VI.7. Title to Properties. The Borrower and each of its Subsidiaries
and each other Credit Party has good and marketable title to all its real and
personal properties, subject to no transfer restrictions or Liens of any kind,
except for the transfer restrictions and Liens
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described in Schedule 6.7 and Liens permitted by Section 8.4;
VI.8. Taxes. Except as set forth in Schedule 6.8, the Borrower and each
of its Subsidiaries has filed or caused to be filed all federal, state and local
tax returns which are required to be filed by it and, except for taxes and
assessments being contested in good faith by appropriate proceedings diligently
conducted and against which reserves reflected in the financial statements
described in Section 6.6(a) and satisfactory to the Borrower's independent
certified public accountants have been established, have paid or caused to be
paid all taxes as shown on said returns or on any assessment received by it, to
the extent that such taxes have become due;
VI.9. Other Agreements. No Credit Party is
(a) a party to or subject to any judgment, order, decree,
agreement, lease or instrument, or subject to other restrictions, which
individually or in the aggregate could reasonably be expected to have a
Material Adverse Effect; or
(b) in default in the performance, observance or fulfillment
of any of the obligations, covenants or conditions contained in any
agreement or instrument to which such Credit Party is a party, which
default has, or if not remedied within any applicable grace period
could reasonably be likely to have, a Material Adverse Effect;
VI.10. Litigation. Except as set forth in Schedule 6.10, there is no
action, suit, investigation or proceeding at law or in equity or by or before
any governmental instrumentality or agency or arbitral body pending, or, to the
knowledge of the Borrower, threatened by or against the Borrower or any
Subsidiary or affecting the Borrower or any Subsidiary or any properties or
rights of the Borrower or any Subsidiary, which could reasonably be likely to
have a Material Adverse Effect;
VI.11. Margin Stock. The proceeds of the borrowings made hereunder will
be used by the Borrower only for the purposes expressly authorized herein. None
of such proceeds will be used, directly or indirectly, for the purpose of
purchasing or carrying any margin stock or for the purpose of reducing or
retiring any Indebtedness which was originally incurred to purchase or carry
margin stock or for any other purpose which might constitute any of the Loans
under this Agreement a "purpose credit" within the meaning of said Regulation U
or Regulation X (12 C.F.R. Part 224) of the Board. Neither the Borrower nor any
agent acting in its behalf has taken or will take any action which might cause
this Agreement or any of the documents or instruments delivered pursuant hereto
to violate any regulation of the Board or to violate the Securities Exchange Act
of 1934, as amended, or the Securities Act of 1933, as amended, or any state
securities laws, in each case as in effect on the date hereof;
VI.12. Investment Company. No Credit Party is an "investment company,"
or an "affiliated person" of, or "promoter" or "principal underwriter" for, an
"investment company", as such terms are defined in the Investment Company Act of
1940, as amended (15 U.S.C. ss. 80a-1, et seq.). The application of the proceeds
of the Loans and repayment
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thereof by the Borrower and the performance by the Borrower and the other Credit
Parties of the transactions contemplated by the Loan Documents will not violate
any provision of said Act, or any rule, regulation or order issued by the
Securities and Exchange Commission thereunder, in each case as in effect on the
date hereof;
VI.13. Patents, Etc. The Borrower and each other Credit Party owns or
has the right to use, under valid license agreements or otherwise, all material
patents, licenses, franchises, trademarks, trademark rights, trade names, trade
name rights, trade secrets and copyrights necessary to or used in the conduct of
its businesses as now conducted and as contemplated by the Loan Documents,
without known conflict with any patent, license, franchise, trademark, trade
secret, trade name, copyright, other proprietary right of any other Person;
VI.14. No Untrue Statement. Neither (a) this Agreement nor any other
Loan Document or certificate or document executed and delivered by or on behalf
of the Borrower or any other Credit Party in accordance with or pursuant to any
Loan Document nor (b) any statement, representation, or warranty provided to the
Agent in connection with the negotiation or preparation of the Loan Documents
contains any misrepresentation or untrue statement of material fact or omits to
state a material fact necessary, in light of the circumstance under which it was
made, in order to make any such warranty, representation or statement contained
therein not misleading;
VI.15. No Consents, Etc. Neither the respective businesses or
properties of the Credit Parties, nor any relationship among the Credit Parties
and any other Person, nor any circumstance in connection with the execution,
delivery and performance of the Loan Documents and the transactions contemplated
thereby, is such as to require a consent, approval or authorization of, or
filing, registration or qualification with, any Governmental Authority or any
other Person on the part of any Credit Party as a condition to the execution,
delivery and performance of, or consummation of the transactions contemplated by
the Loan Documents, which, if not obtained or effected, would be reasonably
likely to have a Material Adverse Effect, or if so, such consent, approval,
authorization, filing, registration or qualification has been duly obtained or
effected, as the case may be;
VI.16. Employee Benefit Plans.
(a) The Borrower and each ERISA Affiliate is in compliance
with all applicable provisions of ERISA and the regulations and
published interpretations thereunder and in compliance with all Foreign
Benefit Laws with respect to all Employee Benefit Plans except for any
required amendments for which the remedial amendment period as defined
in Section 401(b) of the Code has not yet expired. Each Employee
Benefit Plan that is intended to be qualified under Section 401(a) of
the Code has been determined by the Internal Revenue Service to be so
qualified, and each trust related to such plan has been determined to
be exempt under Section 501(a) of the Code. No material liability has
been incurred by the Borrower or any ERISA Affiliate which remains
unsatisfied for any taxes or penalties with respect to any Employee
Benefit Plan or any Multiemployer Plan;
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(b) Neither the Borrower nor any ERISA Affiliate has (i)
engaged in a nonexempt prohibited transaction described in Section 4975
of the Code or Section 406 of ERISA affecting any of the Employee
Benefit Plans or the trusts created thereunder which could subject any
such Employee Benefit Plan or trust to a material tax or penalty on
prohibited transactions imposed under Internal Revenue Code Section
4975 or ERISA, (ii) incurred any accumulated funding deficiency with
respect to any Employee Benefit Plan, whether or not waived, or any
other liability to the PBGC which remains outstanding other than the
payment of premiums and there are no premium payments which are due and
unpaid, (iii) failed to make a required contribution or payment to a
Multiemployer Plan, or (iv) failed to make a required installment or
other required payment under Section 412 of the Code, Section 302 of
ERISA or the terms of such Employee Benefit Plan;
(c) No Termination Event has occurred or is reasonably
expected to occur with respect to any Pension Plan or Multiemployer
Plan, and neither the Borrower nor any ERISA Affiliate has incurred any
unpaid withdrawal liability with respect to any Multiemployer Plan;
(d) The present value of all vested accrued benefits under
each Employee Benefit Plan which is subject to Title IV of ERISA, did
not, as of the most recent valuation date for each such plan, exceed
the then current value of the assets of such Employee Benefit Plan
allocable to such benefits;
(e) To the best of the Borrower's knowledge, each Employee
Benefit Plan subject to Title IV of ERISA, maintained by the Borrower
or any ERISA Affiliate, has been administered in accordance with its
terms in all material respects and is in compliance in all material
respects with all applicable requirements of ERISA and other applicable
laws, regulations and rules;
(f) The consummation of the Loans will not involve any
prohibited transaction under ERISA which is not subject to a statutory
or administrative exemption; and
(g) No material proceeding, claim, lawsuit and/or
investigation exists or, to the best knowledge of the Borrower after
due inquiry, is threatened concerning or involving any Employee Benefit
Plan;
VI.17. No Default. As of the date hereof, there does not exist any
Default or Event of Default hereunder;
VI.18. Environmental Laws. Except as listed on Schedule 6.18, the
Borrower and each Subsidiary is in compliance with all applicable Environmental
Laws and has been issued and currently maintains all required federal, state and
local permits, licenses, certificates and approvals. Except as listed on
Schedule 6.18, neither the Borrower nor any Subsidiary has
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been notified of any pending or threatened action, suit, proceeding or
investigation, and neither the Borrower nor any Subsidiary is aware of any
facts, which (a) calls into question, or could reasonably be expected to call
into question, compliance by the Borrower or any Subsidiary with any
Environmental Laws, (b) seeks, or could reasonably be expected to form the basis
of a meritorious proceeding, to suspend, revoke or terminate any license, permit
or approval necessary for the operation of the Borrower's or any Subsidiary's
business or facilities or for the generation, handling, storage, treatment or
disposal of any Hazardous Materials, or (c) seeks to cause, or could reasonably
be expected to form the basis of a meritorious proceeding to cause, any property
of the Borrower or any Subsidiary to be subject to any restrictions on
ownership, use, occupancy or transferability under any Environmental Law;
VI.19. Employment Matters. (a) None of the employees of the Borrower or
any Subsidiary is subject to any collective bargaining agreement and there are
no strikes, work stoppages, election or decertification petitions or
proceedings, unfair labor charges, equal opportunity proceedings, or other
material labor/employee related controversies or proceedings pending or, to the
best knowledge of the Borrower, threatened against the Borrower or any
Subsidiary or between the Borrower or any Subsidiary and any of its employees,
other than employee grievances arising in the ordinary course of business which
could not reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect; and
(b) Except to the extent a failure to maintain compliance would not
have a Material Adverse Effect, the Borrower and each Subsidiary is in
compliance in all respects with all applicable laws, rules and regulations
pertaining to labor or employment matters, including without limitation those
pertaining to wages, hours, occupational safety and taxation and there is
neither pending or threatened any litigation, administrative proceeding nor, to
the knowledge of the Borrower, any investigation, in respect of such matters
which, if decided adversely, could reasonably be likely, individually or in the
aggregate, to have a Material Adverse Effect; and
VI.20. RICO. Neither the Borrower nor any Subsidiary is engaged in or
has engaged in any course of conduct that could subject any of their respective
properties to any Lien, seizure or other forfeiture under any criminal law,
racketeer influenced and corrupt organizations law, civil or criminal, or other
similar laws.
VI.21. Year 2000 Compliance. The Borrower and its Subsidiaries have (i)
initiated a review and assessment of all areas within its and each of its
Subsidiaries' business and operations (including those affected by information
received from suppliers and vendors) that could reasonably be expected to be
adversely affected by the Year 2000 Problem, (ii) developed a plan and timeline
for addressing the Year 2000 Problem on a timely basis, and (iii) to date,
implemented that plan substantially in accordance with that timetable. The
Borrower reasonably believes that all computer applications (including those
affected by information received from its suppliers and vendors) that are
material to its or any of its Subsidiaries' business and operations will on a
timely basis be Year 2000 Compliant, except
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to the extent that a failure to do so could not reasonably be expected to have
Material Adverse Effect.
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ARTICLE VII
Affirmative Covenants
---------------------
Until the Facility Termination Date, unless the Required Lenders shall
otherwise consent in writing, the Borrower will, and where applicable will cause
each Subsidiary to:
VII.1. Financial Reports, Etc. (a) As soon as practical and in any
event within 120 days after the end of each Fiscal Year of the Borrower, deliver
or cause to be delivered to the Agent and each Lender (i) consolidated and
consolidating balance sheets of the Borrower and its Subsidiaries as at the end
of such Fiscal Year, and the notes thereto, and the related consolidated and
consolidating statements of income, stockholders' equity and cash flows, and the
respective notes thereto, for such Fiscal Year, setting forth (other than for
consolidating statements) comparative financial statements for the preceding
Fiscal Year, all prepared in accordance with GAAP applied on a Consistent Basis
and containing, with respect to the consolidated financial statements, opinions
of PricewaterhouseCoopers, L.L.P., or other such independent certified public
accountants selected by the Borrower and approved by the Agent, which are
unqualified as to the scope of the audit performed and as to the "going concern"
status of the Borrower and without any exception not acceptable to the Lenders,
and (ii) a certificate of an Authorized Representative demonstrating compliance
with Sections 8.1(a) through 8.1(c), which certificate shall be in the form of
Exhibit H;
(b) as soon as practical and in any event within 30 days after the end
of each month (except the first two months following the Closing Date and the
last month of the Fiscal Year), deliver to the Agent and each Lender unaudited
consolidated and consolidating balance sheets of the Borrower and its
Subsidiaries as at the end of such month, and the related unaudited consolidated
and consolidating statements of income, stockholders' equity and cash flows for
such month and for the period from the beginning of the then current Fiscal Year
through the end of such reporting period;
(c) as soon as practical and in any event within 45 days after the end
of each fiscal quarter of the Borrower (except the last fiscal quarter of the
Fiscal Year), deliver to the Agent and each Lender (i) by a certificate of an
Authorized Representative to the effect that the interim financial statements
delivered pursuant to Section 7.1(b) for such fiscal quarter period present
fairly the financial position of the Borrower and its Subsidiaries as of the end
of such period and the results of their operations and the changes in their
financial position for such period, in conformity with the standards set forth
in Section 7.6(a) with respect to interim financial statements, and (ii) a
certificate of an Authorized Representative containing computations for such
quarter comparable to that required pursuant to Section 7.1(a)(ii);
(d) together with each delivery of the financial statements required by
Section 7.1(a)(i), deliver to the Agent and each Lender a letter from the
Borrower's accountants specified in Section 7.1(a)(i) stating that in performing
the audit necessary to render an opinion on the financial statements delivered
under Section 7.1(a)(i), they obtained no knowledge of any Default or Event of
Default by the Borrower in the fulfillment of the terms
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and provisions of this Agreement insofar as they relate to financial matters
(which at the date of such statement remains uncured); or if the accountants
have obtained knowledge of such Default or Event of Default, a statement
specifying the nature and period of existence thereof;
(e) promptly upon their becoming available to the Borrower, the
Borrower shall deliver to the Agent and each Lender a copy of (i) all regular or
special reports or effective registration statements which Borrower or any
Subsidiary shall file with the Securities and Exchange Commission (or any
successor thereto) or any securities exchange, (ii) any proxy statement
distributed by the Borrower or any Subsidiary to its shareholders, bondholders
or the financial community in general, and (iii) any management letter or other
report submitted to the Borrower or any Subsidiary by independent accountants in
connection with any annual, interim or special audit of the Borrower or any
Subsidiary; and
(f) promptly, from time to time, deliver or cause to be delivered to
the Agent and each Lender such other information regarding Borrower's and any
Subsidiary's operations, business affairs and financial condition as the Agent
or such Lender may reasonably request;
The Agent and the Lenders are hereby authorized to deliver a copy of
any such financial or other information delivered hereunder to the Lenders (or
any affiliate of any Lender) or to the Agent, to any Governmental Authority
having jurisdiction over the Agent or any of the Lenders pursuant to any written
request therefor or in the ordinary course of examination of loan files, or to
any other Person who shall acquire or consider the assignment of, or acquisition
of any participation interest in, any Obligation permitted by this Agreement;
VII.2. Maintain Properties. Maintain all properties necessary to its
operations in good working order and condition (ordinary wear and tear
excepted), make all needed repairs, replacements and renewals to such
properties, and maintain free from Liens all trademarks, trade names, patents,
copyrights, trade secrets, know-how, and other intellectual property and
proprietary information (or adequate licenses thereto), in each case as are
reasonably necessary to conduct its business as currently conducted or as
contemplated hereby, all in accordance with customary and prudent business
practices;
VII.3. Existence, Qualification, Etc. Except as otherwise expressly
permitted under Section 8.8, do or cause to be done all things necessary to
preserve and keep in full force and effect its existence and all material rights
and franchises, and maintain its license or qualification to do business as a
foreign corporation and good standing in each jurisdiction in which its
ownership or lease of property or the nature of its business makes such license
or qualification necessary;
VII.4. Regulations and Taxes. Comply in all material respects with or
contest in good faith all statutes and governmental regulations and pay all
taxes, assessments, governmental charges, claims for labor, supplies, rent and
any other obligation which, if unpaid, would become a Lien against any of its
properties except liabilities being contested in good faith by appropriate
proceedings diligently conducted and against which adequate reserves acceptable
to the Borrower's independent certified public accountants have been
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established unless and until any Lien resulting therefrom attaches to any of its
property and becomes enforceable against its creditors;
VII.5. Insurance. (a) Keep all of its insurable properties adequately
insured at all times with responsible insurance carriers against loss or damage
by fire and other hazards to the extent and in the manner as are customarily
insured against by similar businesses owning such properties similarly situated
and otherwise as required by the Security Instruments, (b) maintain general
public liability insurance at all times with responsible insurance carriers
against liability on account of damage to persons and property and (c) maintain
insurance under all applicable workers' compensation laws (or in the
alternative, maintain required reserves if self-insured for workers'
compensation purposes) and against loss by reason by business interruption such
policies of insurance to have such limits, deductibles, exclusions, co-insurance
and other provisions providing no less coverages than that specified in Schedule
7.5, such insurance policies to be in form reasonably satisfactory to the Agent.
Each of the policies of insurance described in this Section 7.5 shall provide
that the insurer shall give the Agent not less than thirty (30) days' prior
written notice before any such policy shall be terminated, lapse or be altered
in any manner;
VII.6. True Books. Keep true books of record and account in which full,
true and correct entries will be made of all of its dealings and transactions,
and set up on its books such reserves as may be required by GAAP with respect to
doubtful accounts and all taxes, assessments, charges, levies and claims and
with respect to its business in general, and include such reserves in interim as
well as year-end financial statements;
VII.7. Year 2000 Compliance. The Borrower will promptly notify the
Agent and the Lenders in the event the Borrower discovers or determines that any
computer application (including those affected by information received from its
suppliers and vendors) that is material to its or any of its Subsidiaries'
business and operations will not be Year 2000 Compliant on a timely basis,
except to the extent that such failure could not reasonably be expected to have
a Material Adverse Effect.
VII.8. Right of Inspection. Permit any Person designated by any Lender
or the Agent to visit and inspect any of the properties, corporate books and
financial reports of the Borrower or any Subsidiary and to discuss its affairs,
finances and accounts with its principal officers and independent certified
public accountants, all at reasonable times, at reasonable intervals and with
reasonable prior notice;
VII.9. Observe all Laws. Conform to and duly observe in all material
respects all laws, rules and regulations and all other valid requirements of any
Governmental Authority with respect to the conduct of its business;
VII.10. Governmental Licenses. Obtain and maintain all licenses,
permits, certifications and approvals of all applicable Governmental Authorities
as are required for the conduct of its business as currently conducted and as
contemplated by the Loan Documents;
VII.11. Covenants Extending to Other Persons. Cause each of its
Subsidiaries to do
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with respect to itself, its business and its assets, each of
the things required of the Borrower in Sections 7.2 through 7.10, and 7.18
inclusive;
VII.12. Officer's Knowledge of Default. Upon any officer of the
Borrower obtaining knowledge of any Default or Event of Default hereunder or
under any other obligation of the Borrower or any Subsidiary to any Lender, or
any event, development or occurrence which could reasonably be expected to have
a Material Adverse Effect, cause such officer or an Authorized Representative to
promptly notify the Agent of the nature thereof, the period of existence
thereof, and what action the Borrower or such Subsidiary or other Credit Party
proposes to take with respect thereto;
VII.13. Suits or Other Proceedings. Upon any officer of the Borrower
obtaining knowledge of any litigation or other proceedings being instituted
against the Borrower or any Subsidiary or other Credit Party, or any attachment,
levy, execution or other process being instituted against any assets of the
Borrower or any Subsidiary or other Credit Party, making a claim or claims in an
aggregate amount greater than $100,000 not otherwise covered by insurance,
promptly deliver to the Agent written notice thereof stating the nature and
status of such litigation, dispute, proceeding, levy, execution or other
process;
VII.14. Notice of Environmental Complaint or Condition. Promptly
provide to the Agent true, accurate and complete copies of any and all notices,
complaints, orders, directives, claims or citations received by the Borrower or
any Subsidiary relating to any (a) violation or alleged violation by the
Borrower or any Subsidiary of any applicable Environmental Law; (b) release or
threatened release by the Borrower or any Subsidiary, or by any Person handling,
transporting or disposing of any Hazardous Material on behalf of the Borrower or
any Subsidiary, or at any facility or property owned or leased or operated by
the Borrower or any Subsidiary, of any Hazardous Material, except where
occurring legally pursuant to a permit or license; or (c) liability or alleged
liability of the Borrower or any Subsidiary for the costs of cleaning up,
removing, remediating or responding to a release of Hazardous Materials;
VII.15. Environmental Compliance. If the Borrower or any Subsidiary
shall receive any letter, notice, complaint, order, directive, claim or citation
alleging that the Borrower or any Subsidiary has violated any Environmental Law,
has released any Hazardous Material, or is liable for the costs of cleaning up,
removing, remediating or responding to a release of Hazardous Materials, the
Borrower and any Subsidiary shall, within the time period permitted and to the
extent required by the applicable Environmental Law or the Governmental
Authority responsible for enforcing such Environmental Law, remove or remedy, or
cause the applicable Subsidiary to remove or remedy, such violation or release
or satisfy such liability;
VII.16. Indemnification. Without limiting the generality of Section
11.9, each Borrower hereby agrees jointly and severally to indemnify and hold
the Agent and the Lenders, and their respective officers, directors, employees
and agents, harmless from and against any and all claims, losses, penalties,
liabilities, damages and expenses (including assessment and cleanup costs and
reasonable attorneys', consultants' or other expert fees,
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expenses and disbursements) arising directly or indirectly from, out of or by
reason of (a) the violation of any Environmental Law by the Borrower or any
Subsidiary or with respect to any property owned, operated or leased by the
Borrower or any Subsidiary or (b) the handling, storage, transportation,
treatment, emission, release, discharge or disposal of any Hazardous Materials
by or on behalf of the Borrower or any Subsidiary, or on or with respect to
property owned or leased or operated by the Borrower or any Subsidiary. The
provisions of this Section 7.16 shall survive repayment of the Obligations and
expiration or termination of this Agreement;
VII.17. Further Assurances. At the Borrower's cost and expense, upon
request of the Agent, duly execute and deliver or cause to be duly executed and
delivered, to the Agent such further instruments, documents, certificates,
financing and continuation statements, and do and cause to be done such further
acts that may be reasonably necessary or advisable in the reasonable opinion of
the Agent to carry out more effectively the provisions and purposes of this
Agreement, the Security Instruments and the other Loan Documents;
VII.18. Employee Benefit Plans.
(a) With reasonable promptness, and in any event within thirty
(30) days thereof, give notice to the Agent of (a) the establishment of
any new Pension Plan (which notice shall include a copy of such plan),
(b) the commencement of contributions to any Employee Benefit Plan to
which the Borrower or any of its ERISA Affiliates was not previously
contributing, (c) any material increase in the benefits of any existing
Employee Benefit Plan, (d) each funding waiver request filed with
respect to any Employee Benefit Plan and all communications received or
sent by the Borrower or any ERISA Affiliate with respect to such
request and (e) the failure of the Borrower or any ERISA Affiliate to
make a required installment or payment under Section 302 of ERISA or
Section 412 of the Code by the due date;
(b) Promptly and in any event within fifteen (15) days of
becoming aware of the occurrence or forthcoming occurrence of any (a)
Termination Event or (b) nonexempt "prohibited transaction," as such
term is defined in Section 406 of ERISA or Section 4975 of the Code, in
connection with any Pension Plan or any trust created thereunder,
deliver to the Agent a notice specifying the nature thereof, what
action the Borrower or any ERISA Affiliate has taken, is taking or
proposes to take with respect thereto and, when known, any action taken
or threatened by the Internal Revenue Service, the Department of Labor
or the PBGC with respect thereto; and
(c) With reasonable promptness but in any event within fifteen
(15) days for purposes of clauses (a), (b) and (c), deliver to the
Agent copies of (a) any unfavorable determination letter from the
Internal Revenue Service regarding the qualification of an Employee
Benefit Plan under Section 401(a) of the Code, (b) all notices received
by the Borrower or any ERISA Affiliate of the PBGC's intent to
terminate any Pension Plan or to have a trustee appointed to administer
any Pension Plan, (c) each Schedule B (Actuarial Information) to the
annual report (Form 5500
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Series) filed by the Borrower or any ERISA Affiliate with the Internal
Revenue Service with respect to each Pension Plan and (d) all notices
received by the Borrower or any ERISA Affiliate from a Multiemployer
Plan sponsor concerning the imposition or amount of withdrawal
liability pursuant to Section 4202 of ERISA. The Borrower will notify
the Agent in writing within five (5) Business Days of the Borrower or
any ERISA Affiliate obtaining knowledge or reason to know that the
Borrower or any ERISA Affiliate has filed or intends to file a notice
of intent to terminate any Pension Plan under a distress termination
within the meaning of Section 4041(c) of ERISA;
VII.19. Continued Operations. Continue at all times to conduct its
business and engage principally in the same line or lines of business
substantially as heretofore conducted;
VII.20. New Subsidiaries. Simultaneously with the acquisition or
creation of any Subsidiary, cause to be delivered to the Agent for the benefit
of the Lenders each of the following:
(a) a Facility Guaranty executed by such Subsidiary
substantially in the form of Exhibit I;
(b) a Security Agreement of such Subsidiary substantially in
the form of Exhibit J, together with such Uniform Commercial Code
financing statements on Form UCC-1 or otherwise duly executed by such
Subsidiary as "Debtor" and naming the Agent for the benefit of the
Lenders as "Secured Party", in form, substance and number sufficient in
the reasonable opinion of the Agent and its special counsel to be filed
in all Uniform Commercial Code filing offices in all jurisdictions in
which filing is necessary or advisable to perfect in favor of the Agent
for the benefit of the Lenders the Lien on Collateral conferred under
such Security Instrument to the extent such Lien may be perfected by
Uniform Commercial Code filing;
(c) if such Subsidiary is a corporation (A) the Pledged Stock,
together with duly executed stock powers or powers of assignment in
blank affixed thereto, and (B) if such Collateral shall be owned by a
Subsidiary who has not then executed and delivered to the Agent a
Security Instrument from the owner of such Collateral granting a Lien
to the Agent in such Collateral, a Security Agreement or a Pledge
Agreement (as appropriate) substantially similar in form and content to
that executed and delivered by the Borrower as of the Closing Date,
with appropriate revisions as to the identity of the pledgor and
securing the obligations of such pledgor under its Facility Guaranty;
(d) a supplement to the appropriate schedule attached to the
appropriate Security Instruments listing the additional Collateral,
certified as true, correct and complete by the Authorized
Representative (provided that the failure to deliver such supplement
shall not impair the rights conferred under the Security Instruments in
after acquired Collateral);
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(e) if applicable, Landlord Waivers, Mortgages, an
Intellectual Property Security Agreement and Intellectual Property
Assignments;
(f) an opinion of counsel to the Subsidiary dated as of the
date of delivery of the Facility Guaranty and other Loan Documents
provided for in this Section 7.20 and addressed to the Agent and the
Lenders, in form and substance reasonably acceptable to the Agent
(which opinion may include assumptions and qualifications of similar
effect to those contained in the opinions of counsel delivered pursuant
to Section 5.1(a)), to the effect that:
(A) such Subsidiary is duly organized, validly
existing and in good standing in the jurisdiction of its
formation, has the requisite power and authority to own its
properties and conduct its business as then owned and then
conducted and proposed to be conducted, and is duly qualified
to transact business and is in good standing as a foreign
corporation or partnership in each other jurisdiction in which
the character of the properties owned or leased, or the
business carried on by it, requires such qualification and the
failure to be so qualified would reasonably be likely to
result in a Material Adverse Effect;
(B) the execution, delivery and performance of the
Facility Guaranty and other Loan Documents described in this
Section 7.20 to which such Subsidiary is a signatory have been
duly authorized by all requisite corporate or partnership
action (including any required shareholder or partner
approval), each of such agreements has been duly executed and
delivered and constitutes the valid and binding agreement of
such Subsidiary, enforceable against such Subsidiary in
accordance with its terms, subject to the effect of any
applicable bankruptcy, moratorium, insolvency, reorganization
or other similar law affecting the enforceability of
creditors' rights generally and to the effect of general
principles of equity (whether considered in a proceeding at
law or in equity); and
(C) the Uniform Commercial Code financing statements
on Form UCC-1 delivered to the Agent by the Subsidiary in
connection with the delivery of the Security Instruments of
such Subsidiary have been duly executed by the Subsidiary and
are in form, substance and number sufficient for filing in all
Uniform Commercial Code filing offices in all jurisdictions in
which filing is necessary to perfect in favor of the Agent for
the benefit of the Lenders the Lien on Collateral conferred
under such Security Instruments to the extent such Lien may be
perfected by Uniform Commercial Code filing;
(g) current copies of the charter documents, including
partnership agreements and certificate of limited partnership, if
applicable, and bylaws of such Subsidiary, minutes of duly called and
conducted meetings (or duly effected consent actions) of the Board of
Directors, partners, or appropriate committees thereof (and, if
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required by such charter documents, bylaws or by applicable law, of the
shareholders) of such Subsidiary authorizing the actions and the
execution and delivery of documents described in this Section 7.20.
VII.21. Swap Agreements. Within one year of the Closing Date, the
Borrower shall enter into Swap Agreements in an aggregate notional amount not
less than forty percent (40%) of the sum of the Term Loan Outstandings and the
Revolving Credit Outstandings and for a term of not less than three (3) years.
VII.22. Key Employee Contracts. The Borrower shall employ a Chief
Financial Officer acceptable to the Agent on or before the earlier to occur of
(i) the consummation of any Acquisition subsequent to the FJC Acquisition, other
than an Acquisition for which the cash portion of the Cost of Acquisition when
combined with the cash portion of the Costs of Acquisition for all other
Acquisitions (other than the FJC Acquisition) does not exceed $500,000, or (ii)
the date that is six months after the Closing Date.
VII.23. Life Insurance. Maintain at all times life insurance, free of
any borrowing against the cash value thereof, on the lives of Prever and
Heavirland in the amounts of $4,000,000 and $2,000,000, respectively, and pay
all premiums on such policies as and when they come due; provided, however, that
the Borrower shall not be required to maintain such life insurance on any such
executive who is no longer employed by the Borrower.
7.24. Inactive Subsidiaries. Within thirty (30) days of the Closing
Date, the Borrower shall dissolve or cause to be dissolved each of the Inactive
Subsidiaries.
7.25. Hansens Notes. Within thirty (30) days of the Closing Date, the
Borrower shall with respect to each Hansens Note, either (i) pay such Hansens
Note in full, or (ii) obtain from the payee of such Hansens Note a subordination
agreement in a form acceptable to the Agent.
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ARTICLE VIII
Negative Covenants
------------------
Until the Obligations have been paid and satisfied in full, and this
Agreement has been terminated in accordance with the terms hereof, unless the
Required Lenders shall otherwise consent in writing, the Borrower will not, nor
will it permit any Subsidiary to:
VIII.1. Financial Covenants.
(a) Consolidated Leverage Ratio. Permit at any time during the
respective periods set forth below the Consolidated Leverage Ratio to be greater
than that set forth opposite each such period:
Period Consolidated Leverage Ratio
------ ---------------------------
Closing Date through
March 31, 1999 5.50 to 1.00
April 1, 1999 through
December 31, 1999 5.00 to 1.00
January 1, 2000 through
December 31, 2000 4.25 to 1.00
From January 1, 2001 and
thereafter 3.50 to 1.00
(b) Consolidated Fixed Charge Ratio. Permit at any time during the
respective periods set forth below the Consolidated Fixed Charge Ratio to be
less than that set forth opposite each such period:
Period Fixed Charge Ratio Must Exceed
------ ------------------------------
Closing Date through
December 31, 1999 1.50 to 1.00
January 1, 2000 through
December 31, 2000 1.75 to 1.00
From January 1, 2001 and
thereafter 2.00 to 1.00
(c) Consolidated Interest Coverage Ratio. Permit at any time during
the
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respective periods set forth below the Consolidated Coverage Ratio to be less
than that set forth opposite each such period:
Period Consolidated Interest Coverage Ratio
------ ------------------------------------
Closing Date through
December 31, 1999 2.00 to 1.00
January 1, 2000 through
December 31, 2000 2.50 to 1.00
From January 1, 2001 and
thereafter 3.00 to 1.00
VIII.2. Acquisitions. Enter into any agreement, contract, binding
commitment or other arrangement providing for any Acquisition, or take any
action to solicit the tender of securities or proxies in respect thereof in
order to effect any Acquisition, unless (i) the Person to be (or whose assets
are to be) acquired does not oppose such Acquisition and the line or lines of
business of the Person to be acquired are substantially the same as one or more
line or lines of business conducted by the Borrower and its Subsidiaries, (ii)
no Default or Event of Default shall have occurred and be continuing either
immediately prior to or immediately after giving effect to such Acquisition and
the Borrower shall have furnished to the Agent (A) pro forma historical
financial statements as of the end of the most recently completed Fiscal Year of
the Borrower and most recent interim fiscal quarter, if applicable giving effect
to such Acquisition and (B) a certificate in the form of Exhibit H prepared on a
historical pro forma basis giving effect to such Acquisition, which certificate
shall demonstrate that no Default or Event of Default would exist immediately
after giving effect thereto, (iii) the Person acquired shall be a wholly-owned
Subsidiary, or be merged into the Borrower or a wholly-owned Subsidiary,
immediately upon consummation of the Acquisition (or if assets are being
acquired, the acquiror shall be the Borrower or a wholly-owned Subsidiary),
which Subsidiary shall simultaneously comply with the requirements of Section
7.20, (iv) if (A) the Cost of Acquisition shall exceed $500,000 in cash, or (B)
the Cost of Acquisition shall exceed $5,000,000 in Stock Consideration, the
Required Lenders shall consent to such Acquisition in their discretion, which
consent shall not be unreasonably withheld, and (v) after giving effect to such
Acquisition, the aggregate Costs of Acquisition incurred in any Fiscal Year (on
a noncumulative basis, with the effect that amounts not incurred in any Fiscal
Year may not be carried forward to a subsequent period) shall not exceed (A)
$2,000,000 in cash, or (B) $20,000,000 in Stock Consideration.
VIII.3. Capital Expenditures. Make or become committed to make Capital
Expenditures which exceed in the aggregate $2,000,000 in the first Fiscal Year
of the Borrower following the Closing Date or $1,000,000 in any Fiscal Year of
the Borrower thereafter (on a noncumulative basis, with the effect that amounts
not expended in any Fiscal Year may not be carried forward to a subsequent
period).
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VIII.4. Liens. Incur, create or permit to exist any Lien, charge or
other encumbrance of any nature whatsoever with respect to any property or
assets now owned or hereafter acquired by the Borrower or any Subsidiary, other
than
(a) Liens created under the Security Instruments in favor of
the Agent and the Lenders, and otherwise existing as of the date hereof
and as set forth in Schedule 6.7;
(b) Liens imposed by law for taxes, assessments or charges of
any Governmental Authority for claims not yet due or which are being
contested in good faith by appropriate proceedings diligently
conducted, which, except as expressly so specified on Schedule 6.7, are
inferior in respect of the Collateral to the Liens conferred under the
Security Instruments, and with respect to which adequate reserves or
other appropriate provisions are being maintained in accordance with
GAAP and which Liens are not yet enforceable against other creditors;
(c) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law or
created in the ordinary course of business and in existence less than
90 days from the date of creation thereof for amounts not yet due or
which are being contested in good faith by appropriate proceedings
diligently conducted, which, except as expressly so specified on
Schedule 6.7, are inferior in respect of the Collateral to the Liens
conferred under the Security Instruments, and with respect to which
adequate reserves or other appropriate provisions are being maintained
in accordance with GAAP and which Liens are not yet enforceable against
other creditors;
(d) Liens incurred or deposits made in the ordinary course of
business (including, without limitation, surety bonds and appeal bonds)
in connection with workers' compensation, unemployment insurance and
other types of social security benefits or to secure the performance of
tenders, bids, leases, contracts (other than for the repayment of
Indebtedness), statutory obligations and other similar obligations or
arising as a result of progress payments under government contracts;
(e) easements (including reciprocal easement agreements and
utility agreements), rights-of-way, covenants, consents, reservations,
encroachments, variations and zoning and other restrictions, charges or
encumbrances (whether or not recorded), including those matters shown
in Schedule B, Section II of the title commitments delivered to the
Agent pursuant to Section 5.1(a)(xiii), which do not interfere
materially with the ordinary conduct of the business of the Borrower or
any Subsidiary and which do not materially detract from the value of
the property to which they attach or materially impair the use thereof
to the Borrower or any Subsidiary; and
(f) Liens to secure Indebtedness permitted under Section
8.5(e);
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VIII.5. Indebtedness. Incur, create, assume or permit to exist any
Indebtedness, howsoever evidenced, except:
(a) Indebtedness owing to the Agent or any Lender in
connection with this Agreement, any Note or other Loan Document;
(b) Indebtedness arising from Rate Hedging Obligations
required under Section 7.21;
(c) Indebtedness arising from the Subordinated Notes;
(d) additional unsecured Indebtedness for Money Borrowed not
otherwise covered by clauses (a) through (c) above, provided that the
aggregate outstanding principal amount of all such other Indebtedness
permitted under this clause (d) shall in no event exceed $50,000 at any
time;
(e) Indebtedness arising out of Capital Leases and purchase
money Indebtedness described in Schedule 8.5(e), provided that the
aggregate outstanding amount of such Indebtedness arising out of
Capital Leases and purchase money Indebtedness described in Schedule
8.5(e) shall in no event exceed $500,000 at any time; and
(f) Indebtedness arising from the Hansens Notes; provided,
however, Indebtedness under any Hansens Note shall only be permitted to
exist if a subordination agreement is delivered to the Agent within
thirty (30) days of the Closing Date pursuant to Section 7.25 hereof;
VIII.6. Transfer of Assets. Sell, lease, transfer or otherwise dispose
of any assets of Borrower or any Subsidiary other than (a) dispositions of
inventory in the ordinary course of business, (b) dispositions of assets for
less than $50,000 in one transaction and less than $250,000 in the aggregate
during any Fiscal Year, (c) dispositions of property that is substantially worn,
damaged, obsolete or, in the judgment of the Borrower, no longer best used or
useful in its business or that of any Subsidiary, (d) the disposition of the
trademark "Hansens" for less than $1,000,000, and (e) transfers of assets by a
Credit Party to a Credit Party;
VIII.7. Investments. Purchase, own, invest in or otherwise acquire,
directly or indirectly, any stock or other securities, or make or permit to
exist any interest whatsoever in any other Person or permit to exist any loans
or advances to any Person, except that Borrower may maintain investments or
invest in:
(a) securities of any Person acquired in an Acquisition
permitted hereunder;
(b) Eligible Securities;
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(c) investments existing as of the date hereof and as set
forth in Schedule 6.4;
(d) accounts receivable arising and trade credit granted in
the ordinary course of business and any securities received in
satisfaction or partial satisfaction thereof in connection with
accounts of financially troubled Persons to the extent reasonably
necessary in order to prevent or limit loss;
(e) investments in Subsidiaries;
(f) the Boylan Investment, provided that the aggregate cash
investment (inclusive of loan proceeds and the exercise price of any
warrants or stock options) shall not exceed $1,000,000 at any time;
(g) loans to employees of the Borrower in an aggregate
principal amount at any time outstanding not to exceed $100,000; and
(h) investments by Borrower in Onyx Services, LLC in the form
of warrants and investments resulting from the exercise of rights under
such warrants;
VIII.8. Merger or Consolidation. (a) Consolidate with or merge into any
other Person, or (b) permit any other Person to merge into it, or (c) liquidate,
wind-up or dissolve or sell, transfer or lease or otherwise dispose of all or a
substantial part of its assets; provided, however, (i) any Subsidiary of the
Borrower may merge or transfer all or substantially all of its assets into or
consolidate with the Borrower or any wholly-owned Subsidiary of the Borrower,
and (ii) any other Person may merge into or consolidate with the Borrower or any
wholly-owned Subsidiary and any Subsidiary may merge into or consolidate with
any other Person in order to consummate an Acquisition permitted by Section 8.2,
provided further, that any resulting or surviving entity shall execute and
deliver such agreements and other documents, including a Facility Guaranty, and
take such other action as the Agent may require to evidence or confirm its
express assumption of the obligations and liabilities of its predecessor
entities under the Loan Documents;
VIII.9. Restricted Payments. Make any Restricted Payment or apply or
set apart any of their assets therefor or agree to do any of the foregoing;
provided, however, the Borrower may repurchase shares of stock of the Borrower
if (i) immediately prior to and immediately after giving effect thereto no
Default or Event of Default shall exist or occur and be continuing, and (ii) the
payments for such repurchases do not exceed, in the aggregate, the sum of
$1,000,000 during the term of this Agreement;
VIII.10. Transactions with Affiliates. Other than transactions
permitted under Sections 8.7 and 8.8, enter into any transaction after the
Closing Date, including, without limitation, the purchase, sale, lease or
exchange of property, real or personal, or the rendering of any service, with
any Affiliate of the Borrower, except (a) that such Persons may render
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services to the Borrower or its Subsidiaries for compensation at the same rates
generally paid by Persons engaged in the same or similar businesses for the same
or similar services, (b) that the Borrower or any Subsidiary may render services
to such Persons for compensation at the same rates generally charged by the
Borrower or such Subsidiary and (c) in either case in the ordinary course of
business and pursuant to the reasonable requirements of the Borrower's (or any
Subsidiary's) business consistent with past practice of the Borrower and its
Subsidiaries and upon fair and reasonable terms no less favorable to the
Borrower (or any Subsidiary) than would be obtained in a comparable arm's-length
transaction with a Person not an Affiliate;
VIII.11. Compliance with ERISA. With respect to any Pension Plan,
Employee Benefit Plan or Multiemployer Plan:
(a) permit the occurrence of any Termination Event which would
result in a liability on the part of the Borrower or any ERISA
Affiliate to the PBGC; or
(b) permit the present value of all benefit liabilities under
all Pension Plans to exceed the current value of the assets of such
Pension Plans allocable to such benefit liabilities; or
(c) permit any accumulated funding deficiency (as defined in
Section 302 of ERISA and Section 412 of the Code) with respect to any
Pension Plan, whether or not waived; or
(d) fail to make any contribution or payment to any
Multiemployer Plan which the Borrower or any ERISA Affiliate may be
required to make under any agreement relating to such Multiemployer
Plan, or any law pertaining thereto; or
(e) engage, or permit any Borrower or any ERISA Affiliate to
engage, in any prohibited transaction under Section 406 of ERISA or
Sections 4975 of the Code for which a civil penalty pursuant to Section
502(I) of ERISA or a tax pursuant to Section 4975 of the Code may be
imposed; or
(f) permit the establishment of any Employee Benefit Plan
providing post-retirement welfare benefits or establish or amend any
Employee Benefit Plan which establishment or amendment could result in
liability to the Borrower or any ERISA Affiliate or increase the
obligation of the Borrower or any ERISA Affiliate to a Multiemployer
Plan; or
(g) fail, or permit the Borrower or any ERISA Affiliate to
fail, to establish, maintain and operate each Employee Benefit Plan in
compliance in all material respects with the provisions of ERISA, the
Code, all applicable Foreign Benefit Laws and all other applicable laws
and the regulations and interpretations thereof;
VIII.12. Fiscal Year. Change its Fiscal Year;
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VIII.13. Dissolution, etc. Wind up, liquidate or dissolve (voluntarily
or involuntarily) or commence or suffer any proceedings seeking any such winding
up, liquidation or dissolution, except in connection with a merger or
consolidation permitted pursuant to Section 8.8;
VIII.14. Limitations on Sales and Leasebacks. Enter into any
arrangement with any Person providing for the leasing by the Borrower or any
Subsidiary of real or personal property, whether now owned or hereafter acquired
in a related transaction or series of related transactions, which has been or is
to be sold or transferred by the Borrower or any Subsidiary to such Person or to
any other Person to whom funds have been or are to be advanced by such Person on
the security of such property or rental obligations of the Borrower or any
Subsidiary;
VIII.15. Change in Control. Cause, suffer or permit to exist or occur
any Change of Control;
VIII.16. Rate Hedging Obligations. Except as required under Section
7.21, incur any Rate Hedging Obligations or enter into any agreements,
arrangements, devices or instruments relating to Rate Hedging Obligations;
VIII.17. Negative Pledge Clauses. Enter into or cause, suffer or permit
to exist any agreement with any Person other than the Agent and the Lenders
pursuant to this Agreement or any other Loan Documents which prohibits or limits
the ability of any of the Borrower or any Subsidiary to create, incur, assume or
suffer to exist any Lien upon any of its property, assets or revenues, whether
now owned or hereafter acquired, provided that the Borrower and any Subsidiary
may enter into such an agreement in connection with property subject to any Lien
permitted by this Agreement and not released after the date hereof, when such
prohibition or limitation is by its terms effective only against the assets
subject to such Lien;
VIII.18. Compensation; Reimbursement of Expenses.
(a) Permit total annual compensation to the Key Employees to
exceed $1,000,000 in base salary or $1,750,000 in total cash
compensation;
(b) Pay any salary, fees, and other direct and indirect
remuneration and compensation to any of its directors and executive
officers other than the Key Employees in an amount in excess of those
amounts paid to directors and executive officers of comparable
companies engaged in the same general type of business and in similar
financial condition;
(c) Reimburse any stockholder, officer, director, employee or
agent of the Borrower or any Subsidiary for any expenses incurred by
such Person other than reasonable expenses incurred for or on behalf of
the Borrower or any Subsidiary in
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the ordinary course of business;
VIII.19. Change in Accountants. Other than to another firm of
nationally recognized standing and with the approval of the Agent, such approval
not to be unreasonably withheld, change its independent public accountants;
VIII.20. Lease Payments. Incur or cause, suffer or permit to be
incurred in any Fiscal Year (on a noncumulative basis, with the effect that
amounts not incurred in any Fiscal Year may not be carried forward to a
subsequent period) aggregate Consolidated Lease Payments in excess of
$1,200,000.
ARTICLE IX
Events of Default and Acceleration
----------------------------------
IX.1. Events of Default. If any one or more of the following events
(herein called "Events of Default") shall occur for any reason whatsoever (and
whether such occurrence shall be voluntary or involuntary or come about or be
effected by operation of law or pursuant to or in compliance with any judgment,
decree or order of any court or any order, rule or regulation of any
Governmental Authority), that is to say:
(a) if default shall be made in the due and punctual payment
of the principal of any Loan or other Obligation, when and as the same
shall be due and payable whether pursuant to any provision of Article
II, at maturity, by acceleration or otherwise; or
(b) if default shall be made in the due and punctual payment
of any amount of interest on any Loan or other Obligation or of any
fees or other amounts payable to any of the Lenders or the Agent within
five (5) Business Days of the date on which the same shall be due and
payable; or
(c) if default shall be made in the performance or observance
of any covenant set forth in Section 7.8, 7.12, 7.13, 7.20 or Article
VIII;
(d) if a default shall be made in the performance or
observance of, or shall occur under, any covenant, agreement or
provision contained in this Agreement or the Notes (other than as
described in clauses (a), (b) or (c) above) and such default shall
continue for 30 or more days after the earlier of receipt of notice of
such default by the Authorized Representative from the Agent or an
officer of the Borrower becomes aware of such default, or if a default
shall be made in the performance or observance of, or shall occur
under, any covenant, agreement or provision contained in any of the
other Loan Documents (beyond any applicable grace period, if any,
contained therein) or in any instrument or document evidencing or
creating any obligation, guaranty, or Lien in favor of the Agent or any
of the Lenders or delivered to the Agent or any of the Lenders in
connection with or pursuant to this Agreement or any of the
Obligations, or if any Loan Document ceases to be in full force and
effect (other than
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by reason of any action by the Agent), or if without the written
consent of the Lenders, this Agreement or any other Loan Document shall
be disaffirmed or shall terminate, be terminable or be terminated or
become void or unenforceable for any reason whatsoever (other than in
accordance with its terms in the absence of default or by reason of any
action by the Lenders or the Agent); or
(e) if there shall occur (i) a default, which is not waived,
in the payment of any principal, interest, premium or other amount with
respect to any Indebtedness or Rate Hedging Obligation (other than the
Loans and other Obligations) of the Borrower or any Subsidiary in an
amount not less than $50,000 in the aggregate outstanding, or (ii) a
default, which is not waived, in the performance, observance or
fulfillment of any term or covenant contained in any agreement or
instrument under or pursuant to which any such Indebtedness or Rate
Hedging Obligation may have been issued, created, assumed, guaranteed
or secured by the Borrower or any Subsidiary, or (iii) any other event
of default as specified in any agreement or instrument under or
pursuant to which any such Indebtedness or Rate Hedging Obligation may
have been issued, created, assumed, guaranteed or secured by the
Borrower or any Subsidiary, and such default or event of default shall
continue for more than the period of grace, if any, therein specified,
or such default or event of default shall permit the holder of any such
Indebtedness (or any agent or trustee acting on behalf of one or more
holders) to accelerate the maturity thereof; or
(f) if any representation, warranty or other statement of fact
contained in any Loan Document or in any writing, certificate, report
or statement at any time furnished to the Agent or any Lender by or on
behalf of the Borrower or any other Credit Party pursuant to or in
connection with any Loan Document, or otherwise, shall be false or
misleading in any material respect when given; or
(g) if the Borrower or any Subsidiary shall be unable to pay
its debts generally as they become due; file a petition to take
advantage of any insolvency statute; make an assignment for the benefit
of its creditors; commence a proceeding for the appointment of a
receiver, trustee, liquidator or conservator of itself or of the whole
or any substantial part of its property; file a petition or answer
seeking liquidation, reorganization or arrangement or similar relief
under the federal bankruptcy laws or any other applicable law or
statute; or
(h) if a court of competent jurisdiction shall enter an order,
judgment or decree appointing a custodian, receiver, trustee,
liquidator or conservator of the Borrower or any Subsidiary or of the
whole or any substantial part of its properties and such order,
judgment or decree continues unstayed and in effect for a period of
sixty (60) days, or approve a petition filed against the Borrower or
any Subsidiary seeking liquidation, reorganization or arrangement or
similar relief under the federal bankruptcy laws or any other
applicable law or statute of the United States of America or any state,
which petition is not dismissed within sixty (60) days; or if, under
the provisions of any other law for the relief or aid of debtors, a
court of competent juris-
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diction shall assume custody or control of the Borrower or any
Subsidiary or of the whole or any substantial part of its properties,
which control is not relinquished within sixty (60) days; or if there
is commenced against the Borrower or any Subsidiary any proceeding or
petition seeking reorganization, arrangement or similar relief under
the federal bankruptcy laws or any other applicable law or statute of
the United States of America or any state which proceeding or petition
remains undismissed for a period of sixty (60) days; or if the
Borrower or any Subsidiary takes any action to indicate its consent to
or approval of any such proceeding or petition; or
(i) if (i) one or more judgments or orders where the amount
not covered by insurance (or the amount as to which the insurer denies
liability) is in excess of $50,000 is rendered against the Borrower or
any Subsidiary, or (ii) there is any attachment, injunction or
execution against any of the Borrower's or Subsidiaries' properties for
any amount in excess of $50,000 in the aggregate; and such judgment,
attachment, injunction or execution remains unpaid, unstayed,
undischarged, unbonded or undismissed for a period of thirty (30) days;
or
(j) if the Borrower or any Subsidiary shall, other than in the
ordinary course of business (as determined by past practices), suspend
all or any part of its operations material to the conduct of the
business of the Borrower and its Subsidiaries taken as a whole for a
period of more than 60 days; or
(k) if the Borrower or any Subsidiary shall breach any of the
material terms or conditions of any agreement under which any Rate
Hedging Obligations permitted hereby is created and such breach shall
continue beyond any grace period, if any, relating thereto pursuant to
the terms of such agreement, or if the Borrower or any Subsidiary shall
disaffirm or seek to disaffirm any such agreement or any of its
obligations thereunder; or
(l) if there shall occur and not be waived an Event of Default
as defined in any of the other Loan Documents;
then, and in any such event and at any time thereafter, if such Event of Default
or any other Event of Default shall have not been waived,
(A) either or both of the following actions may be
taken: (i) the Agent, with the consent of the Required
Lenders, may, and at the direction of the Required Lenders
shall, declare any obligation of the Lenders and the Issuing
Bank to make further Revolving Loans terminated, whereupon the
obligation of each Lender to make further Revolving Loans
hereunder shall terminate immediately, and (ii) the Agent
shall at the direction of the Required Lenders, at their
option, declare by notice to the Borrower any or all of the
Obligations to be immediately due and payable, and the same,
including all interest accrued thereon and all other
obligations of the Borrower to the Agent and the Lenders,
shall forthwith become immediately due and payable without
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presentment, demand, protest, notice or other formality of any
kind, all of which are hereby expressly waived, anything
contained herein or in any instrument evidencing the
Obligations to the contrary notwithstanding; provided,
however, that notwithstanding the above, if there shall occur
an Event of Default under clause (g) or (h) above, then the
obligation of the Lenders to make Revolving Loans hereunder
shall automatically terminate and any and all of the
Obligations shall be immediately due and payable without the
necessity of any action by the Agent or the Required Lenders
or notice to the Agent or the Lenders; and
(B) the Agent and each of the Lenders shall have all
of the rights and remedies available under the Loan Documents
or under any applicable law.
IX.2. Agent to Act. In case any one or more Events of Default shall
occur and not have been waived, the Agent may, and at the direction of the
Required Lenders shall, proceed to protect and enforce their rights or remedies
either by suit in equity or by action at law, or both, whether for the specific
performance of any covenant, agreement or other provision contained herein or in
any other Loan Document, or to enforce the payment of the Obligations or any
other legal or equitable right or remedy.
IX.3. Cumulative Rights. No right or remedy herein conferred upon the
Lenders or the Agent is intended to be exclusive of any other rights or remedies
contained herein or in any other Loan Document, and every such right or remedy
shall be cumulative and shall be in addition to every other such right or remedy
contained herein and therein or now or hereafter existing at law or in equity or
by statute, or otherwise.
IX.4. No Waiver. No course of dealing between the Borrower and any
Lender or the Agent or any failure or delay on the part of any Lender or the
Agent in exercising any rights or remedies under any Loan Document or otherwise
available to it shall operate as a waiver of any rights or remedies and no
single or partial exercise of any rights or remedies shall operate as a waiver
or preclude the exercise of any other rights or remedies hereunder or of the
same right or remedy on a future occasion.
IX.5. Allocation of Proceeds. If an Event of Default has occurred and
not been waived, and the maturity of the Notes has been accelerated pursuant to
Article IX hereof, all payments received by the Agent hereunder, in respect of
any principal of or interest on the Obligations or any other amounts payable by
the Borrower hereunder, shall be applied by the Agent in the following order:
(a) amounts due to the Lenders pursuant to Sections 2.13 and
11.5;
(b) amounts due to the Agent pursuant to Section 10.8;
(c) payments of interest on Loans, to be applied for the
ratable benefit of
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the Lenders;
(d) payments of principal of Loans, to be applied for the
ratable benefit of the Lenders;
(e) amounts due to the Lenders pursuant to Sections 7.16 and
11.9;
(f) payments of all other amounts due under any of the Loan
Documents, if any, to be applied for the ratable benefit of the
Lenders;
(g) amounts due to any of the Lenders in respect of
Obligations consisting of liabilities under any Swap Agreement with any
of the Lenders on a pro rata basis according to the amounts owed; and
(h) any surplus remaining after application as provided for
herein, to the Borrower or otherwise as may be required by applicable
law.
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ARTICLE X
The Agent
---------
X.1. Appointment, Powers, and Immunities. Each Lender hereby
irrevocably appoints and authorizes the Agent to act as its agent under this
Agreement and the other Loan Documents with such powers and discretion as are
specifically delegated to the Agent by the terms of this Agreement and the other
Loan Documents, together with such other powers as are reasonably incidental
thereto. The Agent (which term as used in this sentence and in Section 10.5 and
the first sentence of Section 10.6 hereof shall include its affiliates and its
own and its affiliates' officers, directors, employees, and agents):
(a) shall not have any duties or responsibilities except
those expressly set forth in this Agreement and shall not be a trustee
or fiduciary for any Lender;
(b) shall not be responsible to the Lenders for any recital,
statement, representation, or warranty (whether written or oral) made
in or in connection with any Loan Document or any certificate or other
document referred to or provided for in, or received by any of them
under, any Loan Document, or for the value, validity, effectiveness,
genuineness, enforceability, or sufficiency of any Loan Document, or
any other document referred to or provided for therein or for any
failure by any Credit Party or any other Person to perform any of its
obligations thereunder;
(c) shall not be responsible for or have any duty to
ascertain, inquire into, or verify the performance or observance of any
covenants or agreements by any Credit Party or the satisfaction of any
condition or to inspect the property (including the books and records)
of any Credit Party or any of its Subsidiaries or affiliates;
(d) shall not be required to initiate or conduct any
litigation or collection proceedings under any Loan Document; and
(e) shall not be responsible for any action taken or omitted
to be taken by it under or in connection with any Loan Document, except
for its own gross negligence or willful misconduct.
The Agent may employ agents and attorneys-in-fact and shall not be responsible
for the negligence or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. So long as NationsBank shall be the only
Lender, the term Agent shall mean NationsBank as sole Lender.
X.2. Reliance by Agent. The Agent shall be entitled to rely upon any
certification, notice, instrument, writing, or other communication (including,
without limitation, any thereof by telephone or telefacsimile) believed by it to
be genuine and correct and to have been signed, sent or made by or on behalf of
the proper Person or Persons, and upon advice and statements of legal counsel
(including counsel for any Credit Party), independent
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accountants, and other experts selected by the Agent. The Agent may deem and
treat the payee of any Note as the holder thereof for all purposes hereof unless
and until the Agent receives and accepts an Assignment and Acceptance executed
in accordance with Section 11.1 hereof. As to any matters not expressly provided
for by this Agreement, the Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Required Lenders, and such instructions shall be
binding on all of the Lenders; provided, however, that the Agent shall not be
required to take any action that exposes the Agent to personal liability or that
is contrary to any Loan Document or applicable law or unless 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 any such action.
X.3. Defaults. The Agent shall not be deemed to have knowledge or
notice of the occurrence of a Default or Event of Default unless the Agent has
received written notice from a Lender or the Borrower specifying 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 of the occurrence of a Default or
Event of Default, the Agent shall give prompt notice thereof to the Lenders. The
Agent shall (subject to Section 10.2 hereof) take such action with respect to
such Default or Event of Default as shall reasonably be directed by the Required
Lenders, provided that, unless and until the Agent shall have received such
directions, the Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interest of the Lenders.
X.4. Rights as Lender. With respect to its Revolving Credit and Term
Loan Commitment and the Loans made by it, NationsBank (and any successor acting
as Agent) in its capacity as a Lender hereunder shall have the same rights and
powers hereunder as any other Lender and may exercise the same as though it were
not acting as the Agent, and the term "Lender" or "Lenders" shall, unless the
context otherwise indicates, include the Agent in its individual capacity.
NationsBank (and any successor acting as Agent) and its affiliates may (without
having to account therefor to any Lender) accept deposits from, lend money to,
make investments in, provide services to, and generally engage in any kind of
lending, trust, or other business with any Credit Party or any of its
Subsidiaries or affiliates as if it were not acting as Agent, and NationsBank
(and any successor acting as Agent) and its affiliates may accept fees and other
consideration from any Credit Party or any of its Subsidiaries or affiliates for
services in connection with this Agreement or otherwise without having to
account for the same to the Lenders.
X.5. Indemnification. The Lenders agree to indemnify the Agent (to the
extent not reimbursed under Section 11.9 hereof, but without limiting the
obligations of the Borrower under such Section) ratably in accordance with their
respective Revolving Credit and Term Loan Commitments, for any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses (including attorneys' fees), or disbursements of any kind and
nature whatsoever that may be imposed on, incurred by or asserted against the
Agent (including by any Lender) in any way relating to or arising out of any
Loan Document
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or the transactions contemplated thereby or any action taken or omitted by the
Agent under any Loan Document; provided that no Lender shall be liable for any
of the foregoing to the extent they arise from the gross negligence or willful
misconduct of the Person to be indemnified. Without limitation of the foregoing,
each Lender agrees to reimburse the Agent promptly upon demand for its ratable
share of any costs or expenses payable by the Borrower under Section 11.5, to
the extent that the Agent is not promptly reimbursed for such costs and expenses
by the Borrower. The agreements contained in this Section 10.5 shall survive
payment in full of the Loans and all other amounts payable under this Agreement.
X.6. Non-Reliance on Agent and Other Lenders. Each Lender agrees that
it has, independently and without reliance on the Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis of the Credit Parties and their Subsidiaries and decision to
enter into this Agreement and 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 analysis and
decisions in taking or not taking action under the Loan Documents. Except for
notices, reports, and other documents and information 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 affairs, financial condition, or business of any
Credit Party or any of its Subsidiaries or affiliates that may come into the
possession of the Agent or any of its affiliates.
X.7. Resignation of Agent. The Agent may resign at any time by giving
notice thereof to the Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Required Lenders and shall
have accepted such appointment within thirty (30) days after the retiring
Agent's giving of notice of resignation, then the retiring Agent may, on behalf
of the Lenders, appoint a successor Agent which shall be a commercial bank
organized under the laws of the United States of America having combined capital
and surplus of at least $500,000,000. Upon the acceptance of any appointment as
Agent hereunder by a successor, such successor shall thereupon succeed to and
become vested with all the rights, powers, discretion, privileges, and duties of
the retiring Agent, and the retiring Agent shall be discharged from its duties
and obligations hereunder. After any retiring Agent's resignation hereunder as
Agent, the provisions of this Article X shall continue in effect for its benefit
in respect of any actions taken or omitted to be taken by it while it was acting
as Agent.
X.8. Fees. When and if there shall be more than one (1) Lender
hereunder, the Borrower agrees to pay to the Agent, for its individual account,
an annual Agent's fee as from time to time agreed to by the Borrower and Agent
in writing; provided, however, no such fees shall be due and payable unless the
sum of the Total Revolving Credit Commitment and Term Loan Commitment is greater
than $22,000,000.
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ARTICLE XI
Miscellaneous
-------------
XI.1. Assignments and Participations. (a) Each Lender may assign to one
or more Eligible Assignees all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its Loans,
its Note, and its Revolving Credit Commitment or Term Loan 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 Agreement,
any such partial assignment shall be in an amount at least equal to $1,000,000
or an integral multiple of $100,000 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
Agreement and the Note; 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 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 Agreement. Upon the
consummation of any assignment pursuant to this Section, 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 4.6.
(b) The Agent shall maintain at its address referred to in Section 11.2
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
Revolving Credit and Term Loan 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
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.
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(c) 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 fee, the Agent shall, if such Assignment and Acceptance has
been completed and is in substantially the form of Exhibit 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.
(d) 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
Agreement (including all or a portion of its Revolving Credit and Term Loan
Commitment or its Loans); provided, however, that (i) such Lender's obligations
under this 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 in Article IV and the right of set-off contained
in Section 11.3, 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 Agreement, and such Lender shall retain the sole right to
enforce the obligations of the Borrower relating to its Loans and its Note and
to approve any amendment, modification, or waiver of any provision of this
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
Note, extending any scheduled principal payment date or date fixed for the
payment of interest on such Loans or Note, or extending its Revolving Credit and
Term Loan Commitment).
(e) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time assign and pledge all or any portion of its Loans and
its Note 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.
(f) 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).
XI.2. Notices. Any notice shall be conclusively deemed to have been
received by any party hereto and be effective (i) on the day on which delivered
(including hand delivery by commercial courier service) to such party (against
receipt therefor), (ii) on the date of receipt at such address, telefacsimile
number or telex number as may from time to time be specified by such party in
written notice to the other parties hereto or otherwise received), in the case
of notice by telegram, telefacsimile or telex, respectively (where the receipt
of such message is verified by return), or (iii) on the fifth Business Day after
the day on which mailed, if sent prepaid by certified or registered mail, return
receipt requested, in each case delivered, transmitted or mailed, as the case
may be, to the address, telex number or telefacsimile number, as appropriate,
set forth below or such other address or number as such party shall specify by
notice hereunder:
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(a) if to the Borrower:
Saratoga Beverage Group, Inc.
11 Geyser Road
Saratoga Springs, New York 12866
Attn: Robin Prever
Telephone: (518) 584-6363
Telefacsimile: (___) ___-____
with a copy to:
Mr. Robert C. Brighton, Jr.
Ruden McClosky Smith Schuster & Russell, P.A.
200 East Broward Boulevard
Fort Lauderdale, Florida 33301
Telephone: (954) 764-6660
Telefacsimile: (954) 764-4996
(b) if to the Agent:
NationsBank, National Association
Independence Center, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Agency Services (Ashley Hamilton)
Telephone: (704) 386-4576
Telefacsimile: (704) 386-8694
with a copy to:
NationsBank, National Association
600 Peachtree Street, N.E., 9th Floor
Atlanta, Georgia 30308-2213
Attention: Greg P. McCrery
Telephone: (404) 607-5540
Telefacsimile: (404) 607-6467
(c) if to the Lenders:
At the addresses set forth on the signature pages
hereof and on the signature page of each Assignment
and Acceptance;
(d) if to any other Credit Party, at the address set
forth on the signature page of the Facility Guaranty
or Security Instrument executed by such Credit Party,
as the case may be.
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XI.3. Right of Set-off; Adjustments. (a) Upon the occurrence and during
the continuance of any Event of Default, each Lender (and each of its
affiliates) is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Lender (or any of its affiliates)
to or for the credit or the account of the Borrower against any and all of the
obligations of the Borrower now or hereafter existing under this Agreement and
the Note held by such Lender, irrespective of whether such Lender shall have
made any demand under this Agreement or such Note and although such obligations
may be unmatured. Each Lender agrees promptly to notify the Borrower after any
such set-off and application made by such Lender; provided, however, that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of each Lender under this Section 11.3 are in addition
to other rights and remedies (including, without limitation, other rights of
set-off) that such Lender may have.
(b) If any Lender (a "benefitted Lender") shall at any time receive any
payment of all or part of the Loans owing to it, or interest thereon, or receive
any collateral in respect thereof (whether voluntarily or involuntarily, by
set-off, or otherwise), in a greater proportion than any such payment to or
collateral received by any other Lender, if any, in respect of such other
Lender's Loans owing to it, or interest thereon, such benefitted Lender shall
purchase for cash from the other Lenders a participating interest in such
portion of each such other Lender's Loans owing to it, or shall provide such
other Lenders with the benefits of any such collateral, or the proceeds thereof,
as shall be necessary to cause such benefitted Lender to share the excess
payment or benefits of such collateral or proceeds ratably with each of the
Lenders; provided, however, that if all or any portion of such excess payment or
benefits is thereafter recovered from such benefitted Lender, such purchase
shall be rescinded, and the purchase price and benefits returned, to the extent
of such recovery, but without interest. The Borrower agrees that any Lender so
purchasing a participation from a Lender pursuant to this Section 11.3 may, to
the fullest extent permitted by law, exercise all of its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Person were the direct creditor of the Borrower in the amount of such
participation.
XI.4. Survival. All covenants, agreements, representations and
warranties made herein shall survive the making by the Lenders of the Loans and
the execution and delivery to the Lenders of this Agreement and the Notes and
shall continue in full force and effect so long as any of Obligations remain
outstanding or any Lender has any Eurodollar Rate Loan hereunder or the Borrower
has continuing obligations hereunder unless otherwise provided herein. Whenever
in this Agreement any of the parties hereto is referred to, such reference shall
be deemed to include the successors and permitted assigns of such party and all
covenants, provisions and agreements by or on behalf of the Borrower which are
contained in the Loan Documents shall inure to the benefit of the successors and
permitted assigns of the Lenders or any of them.
XI.5. Expenses. The Borrower agrees to pay on demand all costs and
expenses of
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the Agent in connection with the syndication, preparation, execution, delivery,
administration, modification, and amendment of this Agreement, the other Loan
Documents, and the other documents to be delivered hereunder, including, without
limitation, the reasonable fees and expenses of counsel for the Agent with
respect thereto and with respect to advising the Agent as to its rights and
responsibilities under the Loan Documents. The Borrower further agrees to pay on
demand all costs and expenses of the Agent and the Lenders, if any (including,
without limitation, reasonable attorneys' fees and expenses), in connection with
the enforcement (whether through negotiations, legal proceedings, or otherwise)
of the Loan Documents and the other documents to be delivered hereunder.
XI.6. Amendments and Waivers. Any provision of this Agreement or any
other Loan Document may be amended or waived if, but only if, such amendment or
waiver is in writing and is signed by the Borrower and the Required Lenders
(and, if Article X or the rights or duties of the Agent are affected thereby, by
the Agent); provided that no such amendment or waiver shall, unless signed by
all the Lenders, (i) increase the Revolving Credit or Term Loan Commitment of
the Lenders, (ii) reduce the principal of or rate of interest on any Loan or any
fees or other amounts payable hereunder, (iii) postpone any date fixed for the
payment of any scheduled installment of principal of or interest on any Loan or
any fees or other amounts payable hereunder or for termination of any Revolving
Credit or Term Loan Commitment, or (iv) change the percentage of the Revolving
Credit or Term Loan Commitment or of the unpaid principal amount of the Notes,
or the number of Lenders, which shall be required for the Lenders or any of them
to take any action under this Section 11.6 or any other provision of this
Agreement or (v) release any Guarantor or all or substantially all of the
Collateral;
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, except as otherwise expressly provided herein. No delay or
omission on any Lender's or the Agent's part in exercising any right, remedy or
option shall operate as a waiver of such or any other right, remedy or option or
of any Default or Event of Default.
XI.7. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, and it shall not be necessary in making proof of this Agreement to
produce or account for more than one such fully-executed counterpart.
XI.8. Termination. The termination of this Agreement shall not affect
any rights of the Borrower, the Lenders or the Agent or any obligation of the
Borrower, the Lenders or the Agent, arising prior to the effective date of such
termination, and the provisions hereof shall continue to be fully operative
until all transactions entered into or rights created or obligations incurred
prior to such termination have been fully disposed of, concluded or liquidated
and the Obligations arising prior to or after such termination have been
irrevocably paid in full. The rights granted to the Agent for the benefit of the
Lenders under the Loan Documents shall continue in full force and effect,
notwithstanding the termination of this Agreement, until all of the Obligations
have been paid in full after the termination hereof
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(other than Obligations in the nature of continuing indemnities or expense
reimbursement obligations not yet due and payable, which shall continue) or the
Borrower has furnished the Lenders and the Agent with an indemnification
satisfactory to the Agent and each Lender with respect thereto. All
representations, warranties, covenants, waivers and agreements contained herein
shall survive termination hereof until payment in full of the Obligations unless
otherwise provided herein. Notwithstanding the foregoing, if after receipt of
any payment of all or any part of the Obligations, any Lender is for any reason
compelled to surrender such payment to any Person because such payment is
determined to be void or voidable as a preference, impermissible setoff, a
diversion of trust funds or for any other reason, this Agreement shall continue
in full force and the Borrower shall be liable to, and shall indemnify and hold
the Agent or such Lender harmless for, the amount of such payment surrendered
until the Agent or such Lender shall have been finally and irrevocably paid in
full. The provisions of the foregoing sentence shall be and remain effective
notwithstanding any contrary action which may have been taken by the Agent or
the Lenders in reliance upon such payment, and any such contrary action so taken
shall be without prejudice to the Agent or the Lenders' rights under this
Agreement and shall be deemed to have been conditioned upon such payment having
become final and irrevocable.
XI.9. Indemnification; Limitation of Liability. (a) The Borrower agrees
to indemnify and hold harmless the Agent and each Lender and each of their
affiliates and their respective officers, directors, employees, agents, and
advisors (each, an "Indemnified Party") from and against any and all claims,
damages, losses, liabilities, costs, and expenses (including, without
limitation, reasonable attorneys' fees) that may be incurred by or asserted or
awarded against any Indemnified Party, in each case arising out of or in
connection with or by reason of (including, without limitation, in connection
with any investigation, litigation, or proceeding or preparation of defense in
connection therewith) the Loan Documents, any of the transactions contemplated
herein or the actual or proposed use of the proceeds of the Loans, except to the
extent such claim, damage, loss, liability, cost, or expense is found in a
final, non-appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified Party's gross negligence or willful misconduct.
In the case of an investigation, litigation or other proceeding to which the
indemnity in this Section 11.9 applies, such indemnity shall be effective
whether or not such investigation, litigation or proceeding is brought by the
Borrower, its directors, shareholders or creditors or an Indemnified Party or
any other Person or any Indemnified Party is otherwise a party thereto and
whether or not the transactions contemplated hereby are consummated. The
Borrower agrees that no Indemnified Party shall have any liability (whether
direct or indirect, in contract or tort or otherwise) to it, any of its
Subsidiaries, any Guarantor, or any security holders or creditors thereof
arising out of, related to or in connection with the transactions contemplated
herein, except to the extent that such liability is found in a final
non-appealable judgment by a court of competent jurisdiction to have directly
resulted from such Indemnified Party's gross negligence or willful misconduct.
The Borrower agrees not to assert any claim against the Agent, any Lender, any
of their affiliates, or any of their respective directors, officers, employees,
attorneys, agents, and advisers, on any theory of liability, for special,
indirect, consequential, or punitive damages arising out of or otherwise
relating to the Loan Documents, any of the transactions contemplated herein or
the actual or proposed use of the
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proceeds of the Loans.
(b) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 11.9 shall survive the payment in full of the Loans and all other
amounts payable under this Agreement.
XI.10. Severability. If any provision of this Agreement or the other
Loan Documents shall be determined to be illegal or invalid as to one or more of
the parties hereto, then such provision shall remain in effect with respect to
all parties, if any, as to whom such provision is neither illegal nor invalid,
and in any event all other provisions hereof shall remain effective and binding
on the parties hereto.
XI.11. Entire Agreement. This Agreement, together with the other Loan
Documents, constitutes the entire agreement among the parties with respect to
the subject matter hereof and supersedes all previous proposals, negotiations,
representations, Eurodollar Rate Loans and other communications between or among
the parties, both oral and written, with respect thereto.
XI.12. Agreement Controls. In the event that any term of any of the
Loan Documents other than this Agreement conflicts with any express term of this
Agreement, the terms and provisions of this Agreement shall control to the
extent of such conflict.
XI.13. Usury Savings Clause. Notwithstanding any other provision
herein, the aggregate interest rate charged under any of the Notes, including
all charges or fees in connection therewith deemed in the nature of interest
under applicable law shall not exceed the Highest Lawful Rate (as such term is
defined below). If the rate of interest (determined without regard to the
preceding sentence) under this Agreement at any time exceeds the Highest Lawful
Rate (as defined below), the outstanding amount of the Loans made hereunder
shall bear interest at the Highest Lawful Rate until the total amount of
interest due hereunder equals the amount of interest which would have been due
hereunder if the stated rates of interest set forth in this Agreement had at all
times been in effect. In addition, if when the Loans made hereunder are repaid
in full the total interest due hereunder (taking into account the increase
provided for above) is less than the total amount of interest which would have
been due hereunder if the stated rates of interest set forth in this Agreement
had at all times been in effect, then to the extent permitted by law, the
Borrower shall pay to the Agent an amount equal to the difference between the
amount of interest paid and the amount of interest which would have been paid if
the Highest Lawful Rate had at all times been in effect. Notwithstanding the
foregoing, it is the intention of the Lenders and the Borrower to conform
strictly to any applicable usury laws. Accordingly, if any Lender contracts for,
charges, or receives any consideration which constitutes interest in excess of
the Highest Lawful Rate, then any such excess shall be canceled automatically
and, if previously paid, shall at such Lender's option be applied to the
outstanding amount of the Loans made hereunder or be refunded to the Borrower.
As used in this paragraph, the term "Highest Lawful Rate" means the maximum
lawful interest rate, if any, that at any time or from time to
83
<PAGE>
time may be contracted for, charged, or received under the laws applicable to
such Lender which are presently in effect or, to the extent allowed by law,
under such applicable laws which may hereafter be in effect and which allow a
higher maximum nonusurious interest rate than applicable laws now allow.
XI.14. Payments. All principal, interest, and other amounts to be paid
by the Borrower under this Agreement and the other Loan Documents shall be paid
to the Agent at the Principal Office in Dollars and in immediately available
funds, without setoff, deduction or counterclaim. Subject to the definition of
"Interest Period" herein, whenever any payment under this Agreement or any other
Loan Document shall be stated to be due on a day that is not a Business Day,
such payment may be made on the next succeeding Business Day, and such extension
of time in such case shall be included in the computation of interest and fees,
as applicable, and as the case may be.
XI.15. Governing Law; Waiver of Jury Trial.
(a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN
THOSE SECURITY INSTRUMENTS WHICH EXPRESSLY PROVIDE THAT THEY SHALL BE
GOVERNED BY THE LAWS OF ANOTHER JURISDICTION) SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA
APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH
STATE.
(b) THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND
CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN MAY BE
INSTITUTED IN ANY STATE OR FEDERAL COURT SITTING IN THE COUNTY OF
BROWARD, STATE OF FLORIDA, UNITED STATES OF AMERICA AND, BY THE
EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER EXPRESSLY WAIVES
ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE
IN, OR TO THE EXERCISE OF JURISDICTION OVER IT AND ITS PROPERTY BY, ANY
SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING, AND THE BORROWER
HEREBY IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY TO THE
JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.
(c) THE BORROWER AGREES THAT SERVICE OF PROCESS MAY BE MADE BY
PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER LEGAL
PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY REGISTERED OR
CERTIFIED MAIL (POSTAGE PREPAID) TO THE ADDRESS OF THE BORROWER
84
<PAGE>
PROVIDED IN SECTION 11.2, OR BY ANY OTHER METHOD OF SERVICE PROVIDED
FOR UNDER THE APPLICABLE LAWS IN EFFECT IN THE STATE OF FLORIDA.
(d) NOTHING CONTAINED IN SUBSECTIONS (a) OR (b) HEREOF SHALL
PRECLUDE THE AGENT OR ANY LENDER FROM BRINGING ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT IN THE
COURTS OF ANY JURISDICTION WHERE THE BORROWER OR ANY OF THE BORROWER'S
PROPERTY OR ASSETS MAY BE FOUND OR LOCATED. TO THE EXTENT PERMITTED BY
THE APPLICABLE LAWS OF ANY SUCH JURISDICTION, THE BORROWER HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT AND EXPRESSLY
WAIVES, IN RESPECT OF ANY SUCH SUIT, ACTION OR PROCEEDING, OBJECTION TO
THE EXERCISE OF JURISDICTION OVER IT AND ITS PROPERTY BY ANY SUCH OTHER
COURT OR COURTS WHICH NOW OR HEREAFTER MAY BE AVAILABLE UNDER
APPLICABLE LAW.
(e) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER OR RELATED TO ANY LOAN DOCUMENT OR ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN
THE FUTURE BE DELIVERED IN CONNECTION THEREWITH, THE BORROWER, THE
AGENT AND THE LENDERS HEREBY AGREE, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY AND HEREBY IRREVOCABLY WAIVE, TO
THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PERSON MAY HAVE
TO TRIAL BY JURY IN ANY SUCH ACTION OR PROCEEDING.
[Signatures on following pages]
85
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be made, executed and delivered by their duly authorized officers as of the day
and year first above written.
SARATOGA BEVERAGE GROUP, INC.
WITNESS:
By:
--------------------------------
Name: Robin Prever
Title: President
NATIONSBANK, NATIONAL ASSOCIATION,
as Agent for the Lenders
By:
--------------------------------
Name: Greg P. McCrery
Title: Vice President
86
<PAGE>
NATIONSBANK, NATIONAL ASSOCIATION
By:
------------------------------------------
Name: Greg P. McCrery
Title: Vice President
Lending Office for Base Rate Loans:
NationsBank, National Association
Independence Center, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Agency Services (Ashley
Hamilton)
Telephone: (704) 386-4576
Telefacsimile: (704) 386-8694
Wire Transfer Instructions:
NationsBank, National Association
ABA# 053000196
Account No.:
-----------------------
Reference: Saratoga Beverage Group,
Inc.
Attention: Corporate Credit Services
Lending Office for Eurodollar Rate Loans:
NationsBank, National Association
Independence Center, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Agency Services
Telephone: (704) 386-2374
Telefacsimile: (704) 386-9923
Wire Transfer Instructions:
NationsBank, National Association
ABA# 053000196
Account No.:
-----------------------
Reference: Saratoga Beverage Group,
Inc.
Attention: Corporate Credit Services
87
<PAGE>
EXHIBIT A
Applicable Commitment Percentages
Applicable
Revolving Credit Term Loan Commitment
Lender Commitment Commitment Percentage
- ------ ---------- ---------- ----------
NationsBank, National
Association $14,000,000.00 $8,000,000.00 100%
-------------- ------------- ----
$14,000,000.00 $8,000,000.00 100%
A-1
<PAGE>
EXHIBIT B
Form of Assignment and Acceptance
Reference is made to the Credit Agreement dated as of January 29, 1999
(the "Credit Agreement") among Saratoga Beverage Group, Inc., a Delaware
corporation (the "Borrower"), the Lenders (as defined in the Credit Agreement)
and NationsBank, National Association, as agent for the Lenders (the "Agent").
Terms defined in the Credit Agreement are used herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule 1 agree as
follows:
1. The Assignor hereby sells and assigns to the Assignee, WITHOUT
RECOURSE and without representation or warranty except as expressly set forth
herein, and the Assignee hereby purchases and assumes from the Assignor, an
interest in and to the Assignor's rights and obligations under the Credit
Agreement and the other Loan Documents as of the date hereof equal to the
percentage interest specified on Schedule 1 of all outstanding rights and
obligations under the Credit Agreement and the other Loan Documents. After
giving effect to such sale and assignment, the Assignee's Revolving Credit and
Term Loan Commitment and the amount of the Loans owing to the Assignee will be
as set forth on Schedule 1.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Loan Documents
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Loan Documents or any other instrument or document furnished
pursuant thereto; (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Credit Party or
the performance or observance by any Credit Party of any of its obligations
under the Loan Documents or any other instrument or document furnished pursuant
thereto; and (iv) attaches the Notes held by the Assignor and requests that the
Agent exchange such Note for new Notes payable to the order of the Assignee in
an amount equal to the Revolving Credit or Term Loan Commitment assumed by the
Assignee pursuant hereto and to the Assignor in an amount equal to the Revolving
Credit or Term Loan Commitment retained by the Assignor, if any, as specified on
Schedule 1.
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 7.1 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will, independently and without
reliance upon the Agent, the Assignor or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement; (iii) confirms that it is an Eligible Assignee; (iv) appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Credit Agreement as are delegated to
B-1
<PAGE>
the Agent by the terms thereof, together with such powers and discretion as are
reasonably incidental thereto; (v) agrees that it will perform in accordance
with their terms all of the obligations that by the terms of the Credit
Agreement are required to be performed by it as a Lender; and (vi) attaches any
U.S. Internal Revenue Service or other forms required under Section 4.6.
4. Following the execution of this Assignment and Acceptance, it will
be delivered to the Agent for acceptance and recording by the Agent. The
effective date for this Assignment and Acceptance (the "Effective Date") shall
be the date of acceptance hereof by the Agent, unless otherwise specified on
Schedule 1.
5. Upon such acceptance and recording by the Agent, as of the Effective
Date, (i) the Assignee shall be a party to the Credit Agreement and, to the
extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Agent, from and after the
Effective Date, the Agent shall make all payments under the Credit Agreement and
the Notes in respect of the interest assigned hereby (including, without
limitation, all payments of principal, interest and commitment fees with respect
thereto) to the Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments under the Credit Agreement and the Notes for periods
prior to the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed
in accordance with, the laws of the State of Florida.
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of Schedule 1 to this Assignment and Acceptance by telefacsimile
shall be effective as delivery of a manually executed counterpart of this
Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule
1 to this Assignment and Acceptance to be executed by their officers thereunto
duly authorized as of the date specified thereon.
B-2
<PAGE>
Schedule 1
Percentage interest assigned: ________%
Assignee's Commitment:
Revolving Credit Commitment $_______
Term Loan Commitment $_______
Aggregate outstanding principal amount
of Loans assigned: $_______
Principal amount of Notes payable to Assignee:
Revolving Note $_______
Term Note $_______
Principal amount of Notes payable to Assignor:
Revolving Note $_______
Term Note $_______
Effective Date (if other than date
of acceptance by Agent): *_______, 19__
[NAME OF ASSIGNOR], as Assignor
By:
---------------------------
Title:
Dated:______________, 19 __
B-3
<PAGE>
[NAME OF ASSIGNEE], as Assignee
By:
---------------------------
Title:
Domestic Lending Office:
Eurodollar Lending Office:
* This date should be no earlier than five Business Days after the
delivery of this Assignment and Acceptance to the Agent.
Accepted [and Approved] **
this ___ day of ___________, 19 _
NATIONSBANK, NATIONAL ASSOCIATION
By:
------------------------------
Title:
[Approved this ____ day
of ____________, 19__
SARATOGA BEVERAGE GROUP, INC.
By: ]**
---------------------------
Title:
** Required if the Assignee is an Eligible Assignee solely by reason
of clause (iii) of the definition of "Eligible Assignee".
B-4
<PAGE>
EXHIBIT C
Notice of Appointment (or Revocation) of Authorized Representative
Reference is hereby made to the Credit Agreement dated as of January
29, 1999 (the "Agreement") among Saratoga Beverage Group, Inc., a Delaware
corporation (the "Borrower"), the Lenders (as defined in the Agreement), and
NationsBank, National Association, as Agent for the Lenders ("Agent").
Capitalized terms used but not defined herein shall have the respective meanings
therefor set forth in the Agreement.
The Borrower hereby nominates, constitutes and appoints each individual
named below as an Authorized Representative under the Loan Documents, and hereby
represents and warrants that (i) set forth opposite each such individual's name
is a true and correct statement of such individual's office (to which such
individual has been duly elected or appointed), a genuine specimen signature of
such individual and an address for the giving of notice, and (ii) each such
individual has been duly authorized by the Borrower to act as Authorized
Representative under the Loan Documents:
Name and Address Office Specimen Signature
-------------------------
-------------------------
-------------------------
Borrower hereby revokes (effective upon receipt hereof by the Agent) the prior
appointment of ________________ as an Authorized Representative.
This the ___ day of January, 1999.
SARATOGA BEVERAGE GROUP, INC.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
C-1
<PAGE>
EXHIBIT D
Form of Borrowing Notice
To: NationsBank, National Association,
as Agent
Independence Center, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Agency Services
Telefacsimile: (704)386-9923
Reference is hereby made to the Credit Agreement dated as of January
29, 1999 (the "Agreement") among Saratoga Beverage Group, Inc. (the "Borrower"),
the Lenders (as defined in the Agreement), and NationsBank, National
Association, as Agent for the Lenders ("Agent"). Capitalized terms used but not
defined herein shall have the respective meanings therefor set forth in the
Agreement.
The Borrower through its Authorized Representative hereby gives notice
to the Agent that Loans of the type and amount set forth below be made on the
date indicated:
Type of Loan Interest Aggregate
(check one) Period(1) Amount(2) Date of Loan(3)
---------- --------- --------- ---------------
Revolving Loan
Base Rate Loan ______ _________ ____________
Eurodollar Rate Loan ______ _________ ____________
- --------------------
(1) For any Eurodollar Rate Loan, one, two, three or six months.
(2) Must be $100,000 or if greater an integral multiple of $100,000,
unless a Base Rate Refunding Loan.
(3) At least three (3) Business Days later if a Eurodollar Rate Loan;
The Borrower hereby requests that the proceeds of Loans described in
this Borrowing Notice be made available to the Borrower as follows: [insert
transmittal instructions] .
The undersigned hereby certifies that:
1. No Default or Event of Default exists either now or after giving
effect to the borrowing described herein; and
2. All the representations and warranties set forth in Article VI of
the Agreement and
D-1
<PAGE>
in the Loan Documents (other than those expressly stated to refer to a
particular date) are true and correct as of the date hereof except that the
reference to the financial statements in Section 6.6(a) of the Agreement are to
those financial statements most recently delivered to you pursuant to Section
7.1 of the Agreement (it being understood that any financial statements
delivered pursuant to Section 7.1 have not been certified by independent public
accountants) and attached hereto are any changes to the Schedules referred to in
connection with such representations and warranties.
3. All conditions contained in the Agreement to the making of any Loan
requested hereby have been met or satisfied in full .
SARATOGA BEVERAGE GROUP, INC.
BY:
--------------------------------
Authorized Representative
DATE:
------------------------------
D-2
<PAGE>
EXHIBIT E
Form of Interest Rate Selection Notice
To: NationsBank, National Association
(Carolinas), as Agent
Independence Center, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Agency Services
Telefacsimile: (704) 386-9923
Reference is hereby made to the Credit Agreement dated as of January
29, 1999 the "Agreement") among Saratoga Beverage Group, Inc. (the "Borrower"),
the Lenders (as defined in the Agreement), and NationsBank, National
Association, as Agent for the Lenders ("Agent"). Capitalized terms used but not
defined herein shall have the respective meanings therefor set forth in the
Agreement.
The Borrower through its Authorized Representative hereby gives notice
to the Agent of the following selection of a type of Loan or Segment and
Interest Period:
Type of Loan
(check one)
-----------
Revolving Loan Interest Aggregate
- ----------------- Period(1) Amount(2) Date of Loan(3)
Base Rate Loan --------- --------- ---------------
______ _________ ____________
Eurodollar Rate Loan ______ _________ ____________
Term Loan
Eurodollar Rate Loan ______ _________ ____________
- -----------------------
(1) For any Eurodollar Rate Loan, one, two, three or six months.
(2) Must be $100,000.00 or if greater an integral multiple of $100,000.00,
unless a Base Rate Refunding Loan.
(3) At least three (3) Business Days later if a Eurodollar Rate Loan;
SARATOGA BEVERAGE GROUP, INC.
BY:
--------------------------------
Authorized Representative
DATE:
------------------------------
E-1
<PAGE>
EXHIBIT F-1
Form of Revolving Note
Promissory Note
(Revolving Loan)
$-------------- ---------, --------------
______ __, 199_
FOR VALUE RECEIVED, SARATOGA BEVERAGE GROUP, INC., a Delaware
corporation having its principal place of business located in Saratoga Springs,
New York (the "Borrower"), hereby promises to pay to the order of
________________________________________ (the "Lender"), in its individual
capacity, at the office of NATIONSBANK, NATIONAL ASSOCIATION, as agent for the
Lenders (the "Agent"), located at One Independence Center, 101 North Tryon
Street, NC1-001-15-04, Charlotte, North Carolina 28255 (or at such other place
or places as the Agent may designate in writing) at the times set forth in the
Credit Agreement dated as of January 29, 1999 among the Borrower, the financial
institutions party thereto (collectively, the "Lenders") and the Agent (the
"Agreement" -- all capitalized terms not otherwise defined herein shall have the
respective meanings set forth in the Agreement), in lawful money of the United
States of America, in immediately available funds, the principal amount of
___________ DOLLARS ($__________) or, if less than such principal amount, the
aggregate unpaid principal amount of all Revolving Loans made by the Lender to
the Borrower pursuant to the Agreement on the Revolving Credit Termination Date
or such earlier date as may be required pursuant to the terms of the Agreement,
and to pay interest from the date hereof on the unpaid principal amount hereof,
in like money, at said office, on the dates and at the rates provided in Article
II of the Agreement. All or any portion of the principal amount of Loans may be
prepaid or required to be prepaid as provided in the Agreement.
If payment of all sums due hereunder is accelerated under the terms of
the Agreement or under the terms of the other Loan Documents executed in
connection with the Agreement, the then remaining principal amount and accrued
but unpaid interest shall bear interest which shall be payable on demand at the
rates per annum set forth in the proviso to Section 2.4 (a) of the Agreement.
Further, in the event of such acceleration, this Revolving Note shall become
immediately due and payable, without presentation, demand, protest or notice of
any kind, all of which are hereby waived by the Borrower.
In the event this Revolving Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the principal
and interest, all costs of collection, including reasonable attorneys' fees, and
interest due hereunder thereon at the rates set forth above.
F-1-1
<PAGE>
Interest hereunder shall be computed as provided in the Agreement.
This Revolving Note is one of the Revolving Notes in the principal
amount of $14,000,000 referred to in the Agreement and is issued pursuant to and
entitled to the benefits and security of the Agreement to which reference is
hereby made for a more complete statement of the terms and conditions upon which
the Revolving Loans evidenced hereby were or are made and are to be repaid. This
Revolving Note is subject to certain restrictions on transfer or assignment as
provided in the Agreement.
All Persons bound on this obligation, whether primarily or secondarily
liable as principals, sureties, guarantors, endorsers or otherwise, hereby waive
to the full extent permitted by law the benefits of all provisions of law for
stay or delay of execution or sale of property or other satisfaction of judgment
against any of them on account of liability hereon until judgment be obtained
and execution issues against any other of them and returned satisfied or until
it can be shown that the maker or any other party hereto had no property
available for the satisfaction of the debt evidenced by this instrument, or
until any other proceedings can be had against any of them, also their right, if
any, to require the holder hereof to hold as security for this Revolving Note
any collateral deposited by any of said Persons as security. Protest, notice of
protest, notice of dishonor, diligence or any other formality are hereby waived
by all parties bound hereon.
F-1-2
<PAGE>
IN WITNESS WHEREOF, the Borrower has caused this Revolving Note to be
made, executed and delivered by its duly authorized representative as of the
date and year first above written, all pursuant to authority duly granted.
SARATOGA BEVERAGE GROUP, INC.
WITNESS:
By:
--------------------------
Name:
------------------------
Title:
-----------------------
F-1-3
<PAGE>
EXHIBIT F-2
Form of Term Note
Promissory Note
(Term Loan)
$---------------- --------, --------
______ __, 199_
FOR VALUE RECEIVED, Saratoga Beverage Group, Inc., a Delaware
corporation having its principal place of business located in Saratoga Springs,
New York (the "Borrower"), hereby promises to pay to the order of
___________________________________ (the "Lender"), in its individual capacity,
at the office of NATIONSBANK, NATIONAL ASSOCIATION, as agent for the Lenders
(the "Agent"), located at One Independence Center, 101 North Tryon Street,
NC1-001-15-04, Charlotte, North Carolina 28255 (or at such other place or places
as the Agent may designate in writing) at the times set forth in the Credit
Agreement dated as of January 29, 1999 among the Borrower, the financial
institutions party thereto (collectively, the "Lenders") and the Agent (the
"Agreement" -- all capitalized terms not otherwise defined herein shall have the
respective meanings set forth in the Agreement), in lawful money of the United
States of America, in immediately available funds, the principal amount of
_____________________ DOLLARS ($______________) with the final installment of
principal and accrued interest to be due and payable on the Term Loan
Termination Date or such earlier date as may be required pursuant to the terms
of the Agreement, and to pay interest from the date hereof on the unpaid
principal amount hereof, in like money, at said office, on the dates and at the
rates provided in Article II of the Agreement. All or any portion of the
principal amount of Loans may be prepaid or required to be prepaid as provided
in the Agreement.
If payment of all sums due hereunder is accelerated under the terms of
the Agreement or under the terms of the other Loan Documents executed in
connection with the Agreement, the then remaining principal amount hereof and
accrued but unpaid interest thereon shall bear interest which shall be payable
on demand at the rates per annum set forth in the proviso to Section 2.4 (a) of
the Agreement. Further, in the event of such acceleration, this Term Note shall
become immediately due and payable, without presentation, demand, protest or
notice of any kind, all of which are hereby waived by the Borrower.
In the event this Term Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the principal
and interest due hereunder, all costs of collection, including reasonable
attorneys' fees, and interest thereon at the rates set forth above.
Interest hereunder shall be computed as provided in the Agreement.
F-2-1
<PAGE>
This Term Note is one of the Term Notes in the aggregate principal
amount of $8,000,000.00 referred to in the Agreement and is issued pursuant to
and entitled to the benefits and security of the Agreement to which reference is
hereby made for a more complete statement of the terms and conditions upon which
the Term Loan evidenced hereby was made and is to be repaid. This Term Note is
subject to certain restrictions on transfer or assignment as provided in the
Agreement.
All Persons bound on this obligation, whether primarily or secondarily
liable as principals, sureties, guarantors, endorsers or otherwise, hereby waive
to the full extent permitted by law the benefits of all provisions of law for
stay or delay of execution or sale of property or other satisfaction of judgment
against any of them on account of liability hereon until judgment be obtained
and execution issues against any other of them and returned satisfied or until
it can be shown that the maker or any other party hereto had no property
available for the satisfaction of the debt evidenced by this instrument, or
until any other proceedings can be had against any of them, also their right, if
any, to require the holder hereof to hold as security for this Term Note any
collateral deposited by any of said Persons as security. Protest, notice of
protest, notice of dishonor, diligence or any other formality are hereby waived
by all parties bound hereon.
F-2-2
<PAGE>
IN WITNESS WHEREOF, the Borrower has caused this Term Note to be made,
executed and delivered by its duly authorized representative as of the date and
year first above written, all pursuant to authority duly granted.
SARATOGA BEVERAGE GROUP, INC.
WITNESS:
By:
--------------------------
Name:
------------------------
Title:
-----------------------
F-2-3
<PAGE>
EXHIBIT G
Form of Opinion of Borrower's Counsel
See attached.
G-1
<PAGE>
EXHIBIT H
Compliance Certificate
NationsBank, National Association,
as Agent
Independence Center, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Agency Services
Telefacsimile: (704) 386-9923
NationsBank, National Association,
as Agent
- ----------------------------------
- ----------------------------------
Attention:
------------------------
Telefacsimile:(___) ___-____
Reference is hereby made to the Credit Agreement dated as of January
29, 1999 (the "Agreement") among Saratoga Beverage Group, Inc., a Delaware
corporation (the "Borrower"), the Lenders (as defined in the Agreement) and
NationsBank, National Association, as Agent for the Lenders ("Agent").
Capitalized terms used but not otherwise defined herein shall have the
respective meanings therefor set forth in the Agreement. The undersigned, a duly
authorized and acting Authorized Representative, hereby certifies to you as of
__________ (the "Determination Date") as follows:
1. Calculations:
A. Compliance with Section 8.1(a): Consolidated Leverage Ratio.
1. Consolidated Indebtedness $_________
2. Consolidated EBITDA $_________
(Sum of (i) through (v))
(i) Consolidated Net Income $________
(ii) Consolidated Interest Expense $________
(iii) Taxes on Income $________
(iv) Amortization $________
(v) Depreciation $________
3. Ratio of A.1 to A.2 ___ to 1.00
H-1
<PAGE>
REQUIRED: LINE A.3 MUST NOT BE GREATER THAN ____ TO 1.00
B. Compliance with Section 8.1(b): Consolidated Fixed Charge
Ratio.
1. Consolidated EBITDAR $________
(Sum of (i) and (ii))
(i) Consolidated EBITDA $________
(ii) Consolidated Lease Payment $________
2. Consolidated Fixed Charges $________
(Sum of (i) through (iv))
(i) Consolidated Interest Expense $________
(ii) Income Taxes Accrued $________
(iii) Consolidated Lease Payments $________
(iv) Dividends and Distributions $________
3. Ratio of B.1 to B.2 __ to 1.00
REQUIRED: LINE B.3 MUST NOT BE LESS THAN ____ TO 1.00.
C. Compliance with Section 8.1(c): Consolidated Interest
Coverage Ratio.
1. Consolidated EBITDA $_________
2. Consolidated Interest Expense $_________
(Sum of (i) through (iii))
(i) Current Amortized Portion of
Debt Discounts $_________
(ii) Current Amortized Portion of
Fees Payable in Connection with
Incurrence of Indebtedness $_________
(iii) Portion of Payments made in
Connection with Capital Leases
allocable to Interest Expense $_________
3. Ratio of C.1 to C.2 ___ to 1.00
REQUIRED: LINE C.3 MUST NOT BE LESS THAN ____ TO 1.00.
2. No Default
A. Since __________ (the date of the last similar
certification), (a) the
H-2
<PAGE>
Borrower has not defaulted in the keeping, observance,
performance or fulfillment of its obligations pursuant to
any of the Loan Documents; and (b) no Default or Event of
Default specified in Article IX of the Agreement has
occurred and is continuing.
B. If a Default or Event of Default has occurred since _______
________ (the date of the last similar certification), the
Borrower proposes to take the following action with respect
to such Default or Event of Default:________________________
------------------------------------------------------------
(Note, if no Default or Event of Default has
occurred, insert "Not Applicable").
The Determination Date is the date of the last required financial
statements submitted to the Lenders in accordance with Section 7.1 of the
Agreement.
IN WITNESS WHEREOF, I have executed this Certificate this _____ day of
__________, 19___.
By:
--------------------------------
Authorized Representative
Name:
------------------------------
Title:
-----------------------------
H-3
<PAGE>
EXHIBIT I
Form of Facility Guaranty
See attached.
I-1
<PAGE>
EXHIBIT J
Form of Security Agreement
See attached.
J-1
<PAGE>
EXHIBIT K
Form of Intellectual Property Security Agreement
See attached.
K-1
<PAGE>
EXHIBIT L
Form of Landlord Waiver
See attached.
L-1
<PAGE>
EXHIBIT M
Form of Boylan Investment Documents Pledge Agreement
See attached.
M-1
<PAGE>
Schedule 3.5
Information Regarding Collateral
S-1
<PAGE>
Schedule 6.4
------------
Subsidiaries and Investments in Other Persons
S-2
<PAGE>
Schedule 6.7
------------
Liens
S-3
<PAGE>
Schedule 6.8
Tax Matters
-----------
S-4
<PAGE>
Schedule 6.10
Litigation
----------
S-5
<PAGE>
Schedule 6.18
Environmental
-------------
S-6
<PAGE>
Schedule 7.5
Insurance
---------
S-7
<PAGE>
Schedule 8.5(e)
---------------
Purchase Money Indebtedness
S-8
<PAGE>
Schedule 8.5(f)
---------------
Hansens Notes
-------------
S-9
<PAGE>
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT made as of January 28, 1999, by and
between SARATOGA BEVERAGE GROUP, INC., a Delaware corporation (the "Company"),
and ROBIN PREVER (the "Executive").
WHEREAS, the Executive has been employed by the Company since
April 1992 and currently serves as President and Chief Executive Officer of the
Company pursuant to an Employment Agreement dated as of June __, 1993 (the "Old
Employment Agreement");
WHEREAS, the Company recognizes the Executive's substantial
contribution to the growth and success of the Company and desires to assure the
Company of the continued employment of the Executive as the President and Chief
Executive Officer of the Company, and the Executive desires to continue such
employment, upon the terms set forth in this Agreement;
WHEREAS, the Company and the Executive have determined to
terminate the Old Employment Agreement and enter into this Agreement;
NOW, THEREFORE, the parties agree as follows:
1. EMPLOYMENT. The Company hereby employs the Executive, and the Executive
hereby accepts employment with the Company, upon the terms and subject to the
conditions set forth herein.
2.
3. TERM. This Agreement is for the four (4) year period (as may be extended,
the "Term") commencing on the date hereof and terminating on the third (3rd)
anniversary of such date, or upon the Executive's earlier death, disability or
other termination of employment pursuant to Section 9; provided, however, that
commencing on the third (3rd) anniversary of the date hereof, the Term shall
automatically be extended for additional three (3) year periods unless, not
later than six (6) months prior to the end of any such period, either party
hereto shall have notified the other party hereto in writing that such
extension shall not take effect.
4.
5. POSITION. During the Term, the Executive shall serve as President, Chief
Executive Officer and Chairperson of the Board (and a director) of the Company.
6.
7. DUTIES AND REPORTING RELATIONSHIP. During the Term, the Executive shall use
her skills and render services to the best of her abilities in supervising and
conducting the operations of the Company. As part of her duties as Chairman and
Chief Executive Officer, the Executive shall be responsible for and have
general supervisory control over the day-to-day operations of the Company and
shall report to, and be subject to supervision by, the Board of Directors of
the Company (the
<PAGE>
"Company Board"). The Executive shall devote a substantial portion of her
business time and attention to the business and affairs of the Company
consistent with her position with the Company. This Agreement shall not be
construed as preventing the Executive from engaging in charitable and community
affairs, giving attention to her outside investment interests or serving a
member of the Board of Directors of another entity, provided that such
activities do not interfere with the regular performance of her duties and
responsibilities under this Agreement.
8.
9. COMPENSATION.
10.
(a) BASE SALARY. The Executive's base salary ("Salary") hereunder shall be
$200,000 per calendar year, payable in accordance with the Company's
customary payroll practices, but in no event less frequently than
semi-monthly. Commencing on the first anniversary of this Agreement, the
Executive's Salary shall be adjusted based on the same percentage as the
increase or decrease during the immediately preceding calendar year in the
United States Department of Labor, Bureau of Labor Statistics, Consumer
Price Index for All Urban Consumers (1962-1984 = 100) and may be further
adjusted from time to time by the compensation committee of the Company
Board, in its sole and absolute discretion, but the Executive's Salary
shall not at any time be less than $200,000 per calendar year.
(a) ANNUAL BONUS. The compensation committee of the Company Board shall
set goals on an annual basis (by March 1 of each fiscal year for such
fiscal year) for the Executive's performance as an officer of the Company,
and shall cause the Company to pay to her an annual bonus in addition to
the Salary based on the achievement by the Executive of such goals.
(a) STOCK OPTIONS. The Company hereby agrees to cause the issuance to the
Executive of stock options ("Stock Options") to purchase 300,000 shares of
Class A common stock, $.01 par value, of the Company as of the date of
this Agreement or soon thereafter as practicable. All such Stock Options
shall be non-qualified stock options and shall be issued pursuant to, and
in accordance with, the Company's 1998 Stock Option Plan (the "Plan").
Each Stock Option shall be exercisable at a price equal to the Fair Market
Value (as defined in the Plan) of the Class A common stock, $.01 par
value, of the Company on the date of issuance of such Stock Option (or if
such date is not a business day, than such option shall be exercisable at
a price equal to the Fair Market Value on the next business day following
such date) in accordance with the terms of the Plan and shall vest over a
three year period from the date of grant at a rate of 33% per year,
commencing with the first anniversary of the date of grant. Executive's
vested Stock Options shall be exercisable for a period of ten (10) years
from the date of issuance. Upon the termination of the Agreement,
<PAGE>
any unvested Stock Options shall lapse, and Executive shall have one (1)
year from the date of termination of her employment with the Company, for
any reason, to exercise any vested Stock Options.
1. VACATION, HOLIDAYS AND SICK LEAVE. During the Term, the Executive shall be
entitled to paid vacation, paid holidays and sick leave in accordance with the
Company's standard policies for its senior executive officers, which policies
shall provide the Executive with benefits no less favorable than those provided
to any other senior executive officer of the Company. Such vacation may be
taken, in the Executive's discretion, at such time or times as are not
inconsistent with the reasonable business needs of the Company. The Executive
shall also be entitled to all paid holidays given by the Company to its senior
executive officers.
1. BUSINESS EXPENSES. The Company recognizes that the Executive will incur
expenses in connection with her duties hereunder and the business of the
Company. The Company agrees to provide the Executive with a corporate American
Express Card in order to pay such expenses and to otherwise reimburse the
Executive for all such expenses paid or incurred by her (and/or, if requested
by the Executive, to advance the Executive amounts required to cover such
expenses) in connection with her employment upon timely submission by the
Executive of receipts and other documentation as required by the Internal
Revenue Code and in conformance with the Company's normal procedures.
2.
3. PENSION AND WELFARE BENEFITS; PERQUISITES. During the Term, the Executive
shall be eligible to participate fully in all health benefits, insurance
programs, pension and retirement plans and other employee and compensation
arrangements (collectively, the "Employee Benefits") available to officers of
the Company generally, which Employee Benefits shall (i) provide the Executive
with benefits no less favorable than those provided to any other senior
executive officer of the Company and (ii) be no less favorable than the
Employee Benefits in place as of the date of this Agreement. During the Term,
the Company shall pay, on a monthly basis, the Executive an automobile
allowance of $750 per month or, at the option of the Executive, shall provide
the Executive with the use of an automobile. In addition, during the Term, the
Company shall provide the Executive with such other perquisites as the Company
Board shall deem appropriate. Nothing contained herein shall be deemed a waiver
by Executive of, or diminish or modify, any vested rights which Executive may
have or may hereafter acquire under any employee benefit plan of the Company.
4.
5. TERMINATION OF EMPLOYMENT. The Executive's employment hereunder may be
terminated without any breach of this Agreement only under the following
circumstances:
6.
<PAGE>
(a) DEATH OR DISABILITY.
(i) The Executive's employment hereunder shall automatically
terminate upon the death of the Executive.
(i) If, as a result of the Executive's incapacity due to physical or
mental illness, the Executive shall have been absent from her duties
with the Company for any six (6) consecutive months or two hundred
forty (240) days in any consecutive three hundred sixty-five (365)
day period, then the Company may terminate the Executive's employment
hereunder for "Disability."
(i) CAUSE. The Company may terminate the Executive's employment hereunder
for Cause. For purposes of this Agreement, "Cause" shall mean the willful
failure or refusal by the Executive to perform her duties hereunder (other
than any such failure resulting from the Executive's incapacity due to
physical or mental illness), which has not ceased within ten (10) days
after the written demand for substantial performance is delivered to the
Executive by the Company Board, which demand identifies the manner in
which the Company Board believes that the Executive has not performed such
duties, or the willful engaging by the Executive in misconduct which is
materially injurious to the Company, monetarily or otherwise (including,
but not limited to, fraud, embezzlement, theft and conduct described in
Section 13). Notwithstanding the foregoing, the Executive's employment
hereunder shall not be deemed to have been terminated for Cause unless and
until there shall have been delivered to the Executive a copy of a
resolution duly adopted by the affirmative vote of not less than
seventy-five percent (75%) of the Company Board (other than the Executive)
(after written notice to the Executive and a reasonable opportunity for
the Executive, together with the Executive's counsel, to be heard before
the Company Board), finding that the Executive should be terminated for
Cause.
(i) TERMINATION BY THE EXECUTIVE. The Executive shall be entitled to
terminate her employment hereunder for Good Reason or if her health should
become impaired to an extent that makes her continued performance of her
duties hereunder hazardous to her physical or mental health, provided that
the Executive shall have furnished the Company with a written statement
from a licensed doctor to such effect and provided further, that, at the
Company's request, the Executive shall submit to an examination by a
doctor selected by the Company and such other doctor shall have concurred
in the conclusion of the Executive's doctor. For purposes of this
Agreement, "Good Reason" shall mean, without the Executive's express
written consent, the assignment to the Executive of any duties
inconsistent with, or any material
<PAGE>
diminution of, the Executive's positions, titles, offices, duties,
responsibilities or status with the Company; the relocation of the
Company's principal executive offices to a location more than fifty (50)
miles from Saratoga Springs, New York or Boca Raton, Florida or the
Company's requiring the Executive to be based anywhere other than Saratoga
Springs, New York or Boca Raton, Florida, except for required travel on
the Company's business to an extent substantially consistent with the
Executive's present business travel obligations; or the failure by the
Company to pay on a timely basis to the Executive any portion of the
Executive's then current compensation.
(a) NOTICE OF TERMINATION. Any purported termination of the Executive's
employment by the Company or by the Executive shall be communicated by
written Notice of Termination to the other party hereto in accordance with
Section 17. "Notice of Termination" shall mean a notice that shall
indicate the specific termination provision in this Agreement relied upon
and shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Executive's employment
under the provision so indicated. Termination by the Executive for Good
Reason shall be deemed to be timely if such notice is delivered to the
Company within fifteen (15) days of the occurrence of any event (even if
such fifteen (15) day period expires after the end of (so long as it
commences during) the Term).
(i) DATE OF TERMINATION. "Date of Termination" shall mean if the
Executive's employment is terminated because of death, the date of the
Executive's death, if the Executive's employment is terminated for
Disability, the date Notice of Termination is given, if the Executive's
employment is terminated for Cause, the date of delivery to the Executive
of the resolution of the Company Board referenced in Section 9(b) or if
the Executive's employment is terminated pursuant to Section 9(c) hereof
or for any other reason (other than death or Disability), the date
specified in the Notice of Termination (which, in the case of a
termination for Good Reason shall not be less than fifteen (15) days nor
more than sixty (60) days from the date such Notice of Termination is
given, and in the case of a termination for any other reason shall not be
less than thirty (30) days from the date such Notice of Termination is
given.
1. COMPENSATION DURING DISABILITY, DEATH OR UPON TERMINATION.
2.
(a) During any period that the Executive fails to perform her duties
hereunder as a result of incapacity due to physical or mental illness
("Disability Period"), the Executive shall continue to receive her full
Salary at the rate then in effect for such period until her employment is
terminated pursuant to Section 9(a)(ii) hereof, provided that payments so
made to the Executive during the Disability Period shall be reduced by the
sum of the amounts, if any, payable
<PAGE>
to the Executive with respect to such period under disability benefit
plans of the Company or under the Social Security disability insurance
program, and which amounts were not previously applied to reduce any such
payment.
(a) If the Executive's employment is terminated by her death or
Disability, the Company shall pay all amounts due to the Executive under
Section 5 through the Date of Termination plus all other amounts to which
she is entitled under any compensation or benefit plan or program of the
Company, in each case in accordance with Section 8, if applicable, and the
Company shall have no further obligation to the Executive under this
Agreement.
(a) If the Executive's employment shall be terminated by the Company for
Cause or by the Executive for other than Good Reason, the Company shall
pay the Executive her full Salary through the Date of Termination at the
rate in effect at the time Notice of Termination is given plus all other
amounts to which she is entitled under any compensation or benefit plan or
program of the Company, and the Company shall have no further obligation
to the Executive under this Agreement.
(A) If, other than following a change in control, the Company shall
terminate the Executive's employment in breach of this Agreement, or the
Executive shall terminate her employment for Good Reason, then
(i) the Company shall pay the Executive her full Salary through the
Date of Termination at the rate in effect at the time Notice of
Termination is given plus all other unpaid amounts, if any, to which
the Executive is entitled as of the Date of Termination under any
compensation or benefit plan or program of the Company, at the time
such payments are due; and
(i) in lieu of any further Salary payments to the Executive for
periods subsequent to the Date of Termination, the Company shall pay
the Executive an aggregate amount equal to the product of (1) the sum
of (x) the Executive's annual Salary rate in effect as of the Date of
Termination and (y) the average of the annual bonuses, if any,
actually paid to the Executive pursuant to Section 5(b) hereof with
respect to the two (2) most recently completed fiscal years during
the Term (including for these purposes the term of the Old Employment
Agreement) prior to the Date of Termination, and (2) the number of
years (including partial years) remaining in the Term plus one (1)
year; such amount to be paid, in the Executive's sole and absolute
discretion, either (I) in a lump sum on the first day of the month
following the termination or (II) in substantially equal monthly
installments during the period commencing with the month
<PAGE>
immediately following the month in which the Date of Termination
occurs and ending with the month corresponding to the end of the Term
hereunder.
(e) If (1) the Executive's employment shall be terminated for any
reason, other than for Cause, death or Disability, within six (6) months
following a change in control (as hereinafter defined) of the Company or
(2) if the Executive terminates her employment immediately upon a change
of control, then
(i) the Company shall pay the Executive her full Salary through the
Date of Termination at the rate in effect at the time of termination
plus all other unpaid amounts, if any, to which the Executive is
entitled as of the Date of Termination under any compensation or
benefit plan or program of the Company, at the time such payments are
due; and
(i) in lieu of any further payments to the Executive for periods
subsequent to the Date of Termination, the Company shall pay the
Executive an aggregate amount equal to the product of (1) the sum of
the (x) Executive's annual Salary rate in effect as of the Date of
Termination and (y) the average of the annual bonuses, if any,
actually paid to the Executive pursuant to Section 5(b) hereof with
respect to the two (2) most recently completed fiscal years during
the Term (including for these purposes the term of the Old Employment
Agreement) prior to the Date of Termination, and (2) the number of
years (including partial years) remaining in the Term plus one (1)
year; such amount to be paid, in the Executive's sole and absolute
discretion, either (I) in a lump sum on the first day of the month
following the termination or (II) in substantially equal monthly
installments during the period commencing with the month immediately
following the month in which the Date of Termination occurs and
ending with the month corresponding to the end of the Term hereunder.
For purposes of this Agreement, a "change in control" of the Company shall
mean (A) the acquisition of "beneficial ownership" (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, by any "person" (as
such term is used in Sections 13(d) and 14(d) of the Exchange Act), other
than the Company or the Executive or an entity directly or indirectly
controlled by the Executive, of securities of the Company representing a
majority of the combined voting power of the Company's then outstanding
securities; (B) the consummation of a merger or consolidation of the
Company with any other entity, other than a merger or consolidation which
would result in the voting securities of the Company
<PAGE>
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) at least a majority of the combined voting power of the
voting securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation; (C) the approval by the
stockholders of the Company of a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company of all
or substantially all of the Company's assets; or (D) during any period of
two (2) consecutive years (not including any period prior to the execution
of this Agreement), individuals who at the beginning of such period
constitute the Company Board and any new director (other than a director
designated by a person who has entered into an agreement with the Company
to effect a transaction described in clauses (A) or (B) of this
subsection) whose election by the Company Board or nomination for election
by the Company's stockholders was approved by a vote of at least
two-thirds (2/3) of the directors then still in office who either were
directors at the beginning of the period or whose election or nomination
for election was previously so approved, cease for any reason to
constitute a majority thereof.
(f) If the Executive shall terminate her employment under clause (B)
of Section 9(c) hereof, the Company shall pay the Executive her full
Salary through the date of Termination at the rate in effect at the time
Notice of Termination is given plus all other amounts to which she is
entitled under any compensation or benefit plan or program of the Company,
and the Company shall have no further obligations to the Executive under
this Agreement.
(g) The Executive shall not be required to mitigate the amount of any
payment provided for in this Section 10 by seeking other employment or
otherwise and the amount of any payment or benefit provided for in this
Section 10 shall not be reduced by any compensation earned by the
Executive as the result of employment by another employer or by retirement
benefits or otherwise.
1. REPRESENTATIONS AND WARRANTIES.
2.
1. The Company represents and warrants that this Agreement has been
authorized by all necessary corporate action of the Company and is a valid
and binding agreement of the Company enforceable against it in accordance
with its terms.
1. The Executive represents and warrants that she is not a party to any
agreement or instrument which would prevent her from entering into or
performing her duties in any way under this Agreement.
1. SUCCESSORS; BINDING AGREEMENT.
2.
<PAGE>
1. The Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all
of the business and/or assets of the Company to expressly assume and agree
to perform this Agreement in the same manner and to the same extent that
the Company would be required to perform it if no such succession had
taken place.
1. This Agreement is a personal contract and the rights and interests of
the Executive hereunder may not be sold, transferred, assigned, pledged,
encumbered, or hypothecated by her, except as otherwise expressly
permitted by the provisions of this Agreement. This Agreement shall inure
to the benefit of and be enforceable by the Executive and her personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devises and legatees. If the Executive should die while any
amount would still be payable to her hereunder had the Executive continued
to live, all such amounts, unless otherwise proved herein, shall be paid
in accordance with the terms of this Agreement to her devisee, legatee or
other designee or, if there is not such designee, to her estate.
1. CONFIDENTIALITY AND NON-COMPETITION COVENANTS.
1. The Executive covenants and agrees that she will not any time during
and after the end of the Term, directly or indirectly, use for her own
account, or disclose to any person, firm or corporation, other than
authorized officers, directors and employees of the Company or its
subsidiaries, Confidential Information as hereinafter defined) of the
Company, except (i) while employed by the Company, in the business of and
for the benefit of the Company or (ii) when required to do so by a court
of competent jurisdiction, by any governmental agency having supervisory
authority over the business of the Company, or by any administrative body
or legislative body (including a committee thereof) with jurisdiction to
order the Company to divulge, disclose or make accessible such
information. For purposes of this Agreement, "Confidential Information"
shall mean non-public information concerning the Company's financial data,
statistical data, strategic business plans, product development (or other
proprietary product data), customer, supplier, distributor and bottler
lists and other information, information relating to practices, processes,
methods, trade secrets, marketing plans and other non-public, proprietary
and confidential information of the Company; provided, however, that
Confidential Information shall not include any information which (x) is
known generally to the public other than as a result of unauthorized
disclosure by the Executive, (y) becomes available to the Executive on a
non-confidential basis from a source other than the Company or (z) was
available to the Executive on a non-confidential basis prior to its
disclosure to the Executive by the Company. It is specifically understood
and agreed by the Executive that any Confidential Information received by
the Executive during her employment by the Company is deemed Confidential
Information for purposes of this Agreement. In the event that the
Executive's employment is terminated hereunder for any reason, she
immediately shall return to the Company all Confidential Information in
her possession.
<PAGE>
1. The Executive covenants and agrees that during the Term and for a
period of two (2) years following the termination of the Executive's
employment, the Executive shall not, directly or indirectly, own any
interest in, operate, join, control or participate as a partner, director,
principal, officer, or agent of, enter into the employment of, act as a
consultant to, or perform any services for any entity which has material
operations which compete with any business in which the Company is engaged
at the time of the Executive's termination of employment (i.e., the
bottled water or the fresh juice beverage industry in the same geographic
area in which the Company or its subsidiaries operate or sell goods).
Notwithstanding anything herein to the contrary, this Section 13 shall not
prevent the Executive from acquiring securities representing not more than
five percent (5%) of the outstanding voting securities of any
publicly-held corporation.
1. The Executive and the Company agree that the covenant of
non-competition is a reasonable covenant under the circumstances, and
further agree that if, in the opinion of any court of competent
jurisdiction such covenants are not reasonable in any respect, such court
shall have the right, power and authority to excise or modify such
provision or provisions of these covenants as to the court shall appear
not reasonable and to enforce the remainder of these covenants as so
amended. The Executive agrees that any breach of the covenants contained
in this Section 13 would irreparably injure the Company. Accordingly, the
Executive agrees that the Company, in addition to pursuing any other
remedies it may have in law or in equity, may obtain an injunction against
the Executive from any court having jurisdiction over the matter,
restraining any further violation of this Section 13.
1. ENTIRE AGREEMENT. This Agreement contains all the understandings between the
parties hereto pertaining to the matters referred to herein, and supersedes all
undertakings and agreements (including the Old Employment Agreement), whether
oral or in writing, previously entered into by them with respect thereto. The
Executive represents that, in executing this Agreement, she does not rely and
has not relied upon any representation or statement not set forth herein made
by the Company with regard to the subject matter, bases or effect of this
Agreement or otherwise.
2.
3. AMENDMENT OR MODIFICATION, WAIVER. No provision of this Agreement may be
amended or waived unless such amendment or waiver is agreed to in writing,
signed by the Executive and by a duly authorized officer of the Company. No
waiver by any party hereto of any breach by another party hereto of any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of a similar or dissimilar condition or provision at
the same time, any prior time or any subsequent time.
4.
5. INDEMNIFICATION; LEGAL FEES. The Company shall indemnify the Executive and
hold her harmless from any cost, expense or liability arising out of or
relating to any acts or decisions made by her, or in the course of performing
services hereunder, within the scope of her employment hereunder, in accordance
with the Company's charter and by-laws. The Company shall bear, or reimburse
the Executive for, all legal fees incurred by her in connection with entering
into this Agreement. If either
<PAGE>
party institutes any action or proceedings to enforce any rights the party has
under this Agreement or for any other judicial remedy, the prevailing party
shall be entitled to reimbursement from the other party for its costs and
expenses incurred thereby, including but not limited to, reasonable attorneys'
fees and disbursements.
6.
7. NOTICES. All notices and other communications hereunder shall be in writing
and shall be deemed to have been given if delivered personally or sent by
facsimile transmission, overnight courier, or certified, registered or express
mail, postage prepaid. Any such notice shall be deemed given when so delivered
personally or sent by facsimile transmission (provided that a confirmation copy
is sent by overnight courier), one day after deposit with an overnight courier,
or if mailed, five (5) days after the date of deposit in the United States
mails, as follows:
If to the Company, to:
Saratoga Beverage Group, Inc.
11 Geyser Road
Saratoga Springs, New York 12866
Attention: Chief Financial Officer
Fax No.: (516) 584-6038
If to the Executive, to:
Fax No: (561) 392-9267
Any notice delivered personally or by courier under this
Section 17 shall be deemed given on the date delivered and any notice sent by
telecopy or registered or certified mail, postage prepaid, return receipt
requested, shall be deemed given on the date telecopied or mailed.
1. SEVERABILITY. If any provision of this Agreement or the application of any
such provision to any party or circumstances shall be determined by any court
of competent jurisdiction to be invalid and unenforceable to any extent, the
remainder of this Agreement or the application of such provision to such person
or circumstances other than those to which it is so determined to be invalid
and unenforceable, shall not be affected thereby, and each provision hereof
shall be validated and shall be enforced to the fullest extent permitted by
law.
2.
3. SURVIVORSHIP. The respective rights and obligations of the parties hereunder
shall survive any termination of this Agreement to the extent necessary to the
intended preservation of such rights and obligations.
4.
5. GOVERNING LAW; ARBITRATION. This Agreement will be governed by and construed
in accordance with the laws of the State of New York, without regard to its
conflicts of laws principles. Any controversy between the parties hereto
relating to this Agreement, or to the meaning or performance thereof, shall be
settled by arbitration in
<PAGE>
accordance with the rules and regulations of the American Arbitration
Association then in force and effect. Judgment on any award rendered in such
arbitration may be entered in any court having jurisdiction.
6.
7. HEADINGS. All descriptive headings of sections and paragraphs in this
Agreement are intended solely for convenience, and no provision of this
Agreement is to be construed by reference to the heading of any section or
paragraph.
8.
9. WITHHOLDINGS. All payments to the Executive under this Agreement shall be
reduced by all applicable withholding required by federal, state or local law.
10.
11.
<PAGE>
12. COUNTERPARTS. This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
13.
14. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first set forth above.
15.
16. SARATOGA BEVERAGE GROUP, INC.
17.
18.
19. By:
-------------------------------------------
20. Name:
21. Title:
22.
23.
24.
25.
-------------------------------------------
26. Robin Prever
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the December
31, 1998 Financial Statements and is qualified in its entirety by reference to
such financial statements.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> DEC-31-1998
<CASH> 2,576,873
<SECURITIES> 0
<RECEIVABLES> 887,776
<ALLOWANCES> 12,955
<INVENTORY> 473,265
<CURRENT-ASSETS> 3,957,430
<PP&E> 3,662,467
<DEPRECIATION> 2,120,514
<TOTAL-ASSETS> 7,499,219
<CURRENT-LIABILITIES> 1,554,593
<BONDS> 1,554,556
0
0
<COMMON> 31,991
<OTHER-SE> 4,358,079
<TOTAL-LIABILITY-AND-EQUITY> 7,499,219
<SALES> 8,881,242
<TOTAL-REVENUES> 9,154,111
<CGS> 5,522,934
<TOTAL-COSTS> 6,287,657
<OTHER-EXPENSES> 1,501,401
<LOSS-PROVISION> 352,029
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> 884,746
<INCOME-TAX> 17,600
<INCOME-CONTINUING> 867,146
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 867,146
<EPS-PRIMARY> .27<F1>
<EPS-DILUTED> .26
<FN>
<F1> the amount is reported as EPS basic, not EPS primary.
</FN>
</TABLE>
