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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
Form 10-K
ANNUAL REPORT PURSUANT TO SECTION 13
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED OCTOBER 31, 1999 COMMISSION FILE NO. 0-21964
SHILOH INDUSTRIES, INC.
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(Exact name of registrant as specified in its charter)
Delaware 51-0347683
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(State or other jurisdiction of incorporation (I.R.S. Employer
or organization) Identification No.)
Suite 202, 103 Foulk Road, Wilmington, Delaware 19803
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(Address of principal executive offices - zip code)
(302) 998-0592
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(Registrant's telephone number, including area code)
SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
None
SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
Common Stock, Par Value $0.01 Per Share
Indicate by check mark whether the registrant: (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X No
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Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein and will not be contained, to the best
of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Annual Report on Form 10-K or any
amendment to this Form 10-K.
---
Aggregate market value of Common Stock held by non-affiliates of the registrant
as of January 26, 2000 at a closing price of $10.50 per share as reported by the
Nasdaq National Market was approximately $49,284,070. Shares of Common Stock
beneficially held by each officer and director and their respective spouses have
been excluded since such persons may be deemed to be affiliates. This
determination of affiliate status is not necessarily a conclusive determination
for other purposes.
Number of shares of Common Stock outstanding as of January 26, 2000 was
14,509,134.
DOCUMENTS INCORPORATED BY REFERENCE
Parts of the following documents are incorporated by reference to Part III of
this Annual Report on Form 10-K: the Proxy Statement for the Registrant's 2000
Annual Meeting of Stockholders (the "Proxy Statement").
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SHILOH INDUSTRIES, INC.
INDEX TO ANNUAL REPORT
ON FORM 10-K
Table of Contents
<TABLE>
<CAPTION>
PART I:
Page
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<S> <C>
Item 1. Business 3
Item 2. Properties 9
Item 3. Legal Proceedings 10
Item 4. Submission of Matters to a Vote of Security Holders 10
Item 4A. Executive Officers of the Company 10
PART II:
Item 5. Market for the Company's Common Equity and Related
Stockholder Matters 13
Item 6. Selected Financial Data 14
Item 7. Management's Discussion and Analysis of Financial
Condition and Results of Operations 15
Item 7A. Quantitative and Qualitative Disclosures about Market Risk 22
Item 8. Financial Statements and Supplementary Data 22
Item 9. Changes in and Disagreements with Accountants on
Accounting and Financial Disclosure 45
PART III:
Item 10. Directors and Executive Officers of the Company 45
Item 11. Executive Compensation 45
Item 12. Security Ownership of Certain Beneficial Owners
and Management 45
Item 13. Certain Relationships and Related Transactions 45
PART IV:
Item 14. Exhibits, Financial Statement Schedules and Reports 46
on Form 8-K
</TABLE>
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PART I
ITEM 1. BUSINESS
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GENERAL
Shiloh is a full service manufacturer of blanks and stamped components
for the automotive and light truck, heavy truck and other industrial markets.
The Company's blanks are principally sold to automotive and truck original
equipment manufacturers ("OEMs") and are used for exterior steel components,
such as fenders, hoods and doors, for which quality of fit and finish is
critical. These blanks include first operation unexposed blanks and more
advanced tailor-welded blanks, which are manufactured from two or more blanks of
different steel or gauges that are welded together utilizing both mash seam
resistance and laser welders. Tailor-welded blanks allow OEMs to achieve a
reduction in vehicle weight, while maintaining body strength for safety and
improving performance of the vehicle. The Company's stampings and assemblies are
principally used as components in mufflers, seat frames, structural rails,
window lifts, vehicle brakes and other structural body components. The Company
also designs, engineers and manufactures precision tools and dies for use in its
blanking and stamping operations, as well as for sale to OEMs, other Tier I
automotive suppliers and other industrial customers. Furthermore, the Company
provides a variety of intermediate steel processing services, such as pickling
and oiling, cutting-to-length, slitting and edge trimming of hot-and cold-rolled
steel coils for automotive and steel industry customers. The Company currently
has 12 subsidiaries at locations in Ohio, Michigan, Georgia and
Mexico.
HISTORY
In April 1993, the Company was organized as a Delaware corporation to
serve as a holding company for seven operating subsidiaries. In June 1993, the
Company effected a reorganization whereby these seven operating subsidiaries
became direct or indirect subsidiaries of the Company. In July 1993, the Company
completed an initial public offering of 3,782,500 shares of its Common Stock.
In January 1996, the Company and Rouge Steel Company formed a limited
liability company, Shiloh of Michigan, L.L.C. ("Shiloh of Michigan"), to create
a joint venture to produce engineered steel blanks, with the Company as an
eighty percent (80%) equity owner. As of the end of fiscal 1999, the Company's
investment in this joint venture totaled approximately $28.0 million.
In November 1996, the Company acquired substantially all of the assets
of Greenfield Die & Manufacturing Corp. ("Greenfield"), which is headquartered
in Canton, Michigan, a suburb of Detroit, and serves the automotive industry by
providing a variety of value added processes, including tool and die design and
build, stamping, assembly, welding, prototyping operations and mold design and
build. In August 1997, the Company acquired C&H Design Company, d.b.a. C&H Die
Technology ("C&H"), which is headquartered in Utica, Michigan, and primarily
serves the automotive industry by providing tool and die design and build. The
Company also commenced operation of Jefferson Blanking, Inc. ("Jefferson
Blanking"), a blanking and stamping facility in Pendergrass, Georgia in July
1998. In addition, the Company commenced construction of Shiloh de Mexico, a
laser welded blanking facility in Saltillo, Mexico in August 1999. This facility
is anticipated to be completed in the second half of fiscal 2000.
The Company's principal executive offices are located at Suite 202, 103
Foulk Road, Wilmington, Delaware 19803 and its telephone number is (302)
998-0592. Unless otherwise indicated, all references to the "Company" refer to
Shiloh Industries, Inc. and its direct and indirect subsidiaries.
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INDUSTRY
ENGINEERED PRODUCTS
In the engineered products business, OEMs and Tier I automotive
suppliers purchase steel components from suppliers such as the Company. The
Company manufactures these components and also engineers and builds the tools
and dies used in its blanking and stamping operations. In addition, the Company
produces tools and dies for its customers. OEMs typically find it more cost
effective and time efficient to focus their core operations on vehicle
assembly, marketing and distribution. As a result, OEMs increasingly outsource
the blanked and stamped steel components used in their vehicles. OEMs
increasingly look to suppliers such as the Company to assume blanking and
stamping, as well as tool and die operations that were previously done
internally at OEMs.
The automotive and light truck and heavy truck industries have been
and continue to be significantly influenced by several trends, which include:
- Reduction in vehicle weight and cost;
- Increased outsourcing;
- Supplier consolidation; and
- Globalization.
The Company believes that these trends afford the Company the
opportunity to enhance its growth prospects for the following reasons:
Reduction in vehicle weight and cost. OEMs are working to reduce the
weight of vehicles and increase fuel efficiency in order to satisfy
government-mandated fuel-economy standards while simultaneously working to
reduce vehicle costs to meet competitive pressures. For example, tailor-welded
banks allow OEMs to reduce vehicle weight, while maintaining body strength for
safety and improving performance of the vehicle. Furthermore, by reducing the
number of parts and supplemental operations required, tailor-welded blanks
offer significant cost savings to OEMs. The Company believes that the Big Three
automotive OEMs currently have limited tailor-welded blanking capability.
Increased outsourcing. In order to respond to competitive pressures to
improve product quality, and to reduce capital expenditures, production costs
and inventory levels, OEMs are focusing on their core operations of vehicle
assembly, marketing and distribution. Consequently, OEMs are increasingly
outsourcing the manufacture of components. This outsourcing trend is evident as
OEMs increasingly continue to outsource stampings and blankings to Tier I and
Tier II suppliers, such as the Company.
Supplier consolidation. OEMs have continued to reduce their supplier
base in several product segments by awarding sole source contracts to full
service suppliers. As a result, OEMs increasingly work with a smaller number of
full service suppliers, each of which supplies a greater proportion of the
total vehicle. Suppliers with sufficient size, geographic scope, and financial
resources are best positioned to be these full-service suppliers. For suppliers
such as the Company, this environment provides an opportunity to grow by
obtaining business previously provided by other full service suppliers and by
acquiring suppliers that further enhance product, manufacturing and service
capabilities. OEMs rigorously evaluate suppliers on the basis of product
quality, cost control, reliability of delivery, product design capability,
financial strength, new technology implementation, quality and condition of
facilities and overall management. Suppliers that obtain superior ratings are
considered for sourcing new business. Although these factors have already
resulted in consolidation of component suppliers in some segments, the Company
believes that the stamping industry is in the early stages of consolidation and
will provide opportunities to it for further consolidation.
Globalization. Full service suppliers are inceasingly following their
OEM customers as they expand their operations into global markets. Shipping
costs, import duties and local content laws make it advantageous for OEMs to
purchase from Tier I suppliers with a local presence.
INTERMEDIATE STEEL PROCESSING
Primary steel producers typically find it more cost effective to
focus on the sale of standard size and tolerance steel to large volume
purchasers and view the intermediate steel processor as part of their customer
base. End-product manufacturers seek to purchase steel free from oxidation and
scale, with closer tolerances, on shorter lead times and with more reliable and
more frequent delivery than the primary steel producers can provide
efficiently. By outsourcing these processing services, many end-product
manufacturers are able to significantly enhance their productivity. These
factors, together with the lower cost structure typically found in the outside
supplier, have caused many end-product manufacturers to find it more
beneficial, from a cost, quality and manufacturing flexibility standpoint, to
outsource much of the intermediate steel processing, which is required for the
production of their end-products.
PRODUCTS AND MANUFACTURING PROCESSES
ENGINEERED PRODUCTS
The Company produces precision stamped steel components through its
blanking and stamping operations. Blanking is a process in which flat rolled
steel is cut into precise two dimensional shapes by passing steel through a
press, employing a blanking die. The Company's blanking presses range in size
from 600 tons to 3,000 tons, giving the flexibility to produce blanks from flat
rolled steel ranging in thickness from 0.02 inches to 0.654 inches. These blanks
are used principally by manufacturers in the automobile, heavy truck, heating,
ventilation and air conditioning ("HVAC") and lawn and garden industries. These
blanks are used by the Company's automotive and heavy truck customers for
automobile exterior parts, including fenders, hoods, doors and side panels, and
heavy truck wheel rims and brake components. The Company's HVAC and lawn and
garden customers use blanks primarily for compressor housings and lawn mower
decks.
The Company produces tailor-welded blanks utilizing both the mash seam
resistance and laser weld processes. The tailor-welded blanks that are produced
generally consist of two or more sheets of steel or aluminum of the same or
different material grade, thickness or coating welded together into a single
flat panel. The primary distinctions between mash seam resistance and laser
welding are weld bead appearance and cost. Mash seam resistance welds typically
are 5%-20% thicker than the parent material gauge, while laser welds generally
do not exceed the thickness of the parent metal unless filler metal is added.
Tailor-welded blanks allow OEMs to reduce vehicle weight, while maintaining body
strength for safety and improving performance of the vehicle. Furthermore, by
reducing the number of parts and supplemental operations required, tailor-welded
blanks offer significant cost savings to OEMs.
Stamping is a process in which steel is passed through dies in a
stamping press in order to form the steel into three dimensional parts. The
Company's stamping presses range in size from 150 tons to 1,500 tons, giving the
flexibility to stamp flat rolled steel and steel blanks ranging in thickness
from 0.01 inches to 0.375 inches. In addition, some of the Company's stamping
presses can accommodate dies up to 240 inches in length and consequently can
perform a large number of stamping functions on a single press. The Company also
produces stamped parts using precision single stage, progressive and transfer
dies, which in most cases, the Company designs and manufactures. In addition,
stamping and blanking operations provide value-added processes, such as welding
and some assembly. The Company also manufactures deep draw stampings, such as
mufflers. The Company's stampings and assemblies are principally used as
components for seat frames, structural rails, window lifts, vehicle brakes and
other structural body components for automobiles and light trucks.
The Company also designs, engineers and produces precision tools and
dies to support the manufacturing process, by supplying substantially all of the
tools and dies used in the blanking and stamping operations. The Company also
produces tools and dies for sale to OEMs, Tier I suppliers and other industrial
customers. Advanced technology is maintained to conduct activities and improve
tool and die production capabilities. The Company has computerized most of the
design and engineering portions of the tool and die production process to reduce
production time and cost. All of the tool and die manufacturing facilities are
electronically connected to major customers, which enables the Company to be
more responsive in the design and build of tools and dies.
INTERMEDIATE STEEL PROCESSING
The Company processes flat rolled steel for internal blanking and
stamping operations. The Company also processes flat rolled steel principally
for primary steel producers and manufacturers that require processed steel for
end-product manufacturing purposes. The Company either purchases hot-rolled
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and cold-rolled steel from primary steel producers located throughout the
Midwest or receives the steel on a toll-processing basis and does not acquire
ownership of it. This steel typically requires additional processing to meet the
requirements of the end-product manufacturers. The Company's intermediate
processing operations include slitting, cutting-to-length, pickling and oiling,
edge trimming, roller leveling and quality inspecting of flat rolled steel.
The first processing operation for hot-rolled steel typically involves
pickling, a chemical process in which an acidic solution is applied to the steel
to remove the surface oxidation and scale which develops on the steel shortly
after it is hot-rolled. During the pickling process, the steel is either coated
with oil to prevent oxidation or with a borax-based solution to prevent
oxidation and facilitate the stamping process. In 1996, the Company added an
additional pickling line, allowing the Company to nearly double capacity for
cleaning, finishing and coating steel. After pickling, the steel is ready for
either additional processing or delivery to the customer.
Pickled steel and cold-rolled steel often go through additional
processing operations to meet the requirements of end-product manufacturers.
Slitting is the cutting of coiled steel to precise widths. Cutting to length
produces steel cut to specified lengths ranging from 12 inches to 168 inches.
Edge trimming removes a specified portion of the outside edges of the coiled
steel to produce a uniform width. Roller leveling flattens the steel by applying
pressure across the width of the steel to make the steel suitable for blanking
and stamping. To achieve high quality and increased volume levels and to be
responsive to customers' just-in-time supply requirements, most of the Company's
steel processing operations are computerized and have combined several
complementary processing lines, such as pickling, slitting and cutting to length
at single facilities. In addition to cleaning, leveling and cutting steel, the
Company inspects steel to detect production flaws and utilize computers to
provide both visual displays and documented records of the thickness maintained
throughout the entire coil of steel. The Company also performs inventory control
services for some customers.
CUSTOMERS
The Company produces blanked and stamped parts and processed
flat-rolled steel for a variety of industrial customers. The Company supplies
steel blanks primarily to the Big Three automotive manufacturers and stampings
to Tier I automotive suppliers. The Company also supplies blanks and stampings
to manufacturers in the lawn and garden, HVAC, home appliance and construction
industries. Finally, the Company processes flat-rolled steel for a number of
primary steel producers.
The Company's largest customer is the Parma, Ohio stamping facility of
the metal fabricating division of General Motors. The Company has been working
with General Motors for more than 20 years. Since 1986, the Company believes
they have been the exclusive supplier of first operation blanks to the General
Motors' facility in Parma, Ohio, which produces stamped exterior body parts for
use in many of its automobiles. The Company is linked to this facility through
an electronic data interchange and the Company supplies blanks on a just-in-time
basis. During fiscal 1999, General Motors accounted for approximately 10.8% of
the Company's revenues.
SALES AND MARKETING
The Company recently reorganized its sales and marketing efforts and
hired a new Vice President of Sales and Marketing to oversee these efforts. The
current sales force consists of approximately 18 individuals. Over the next few
months, the Company expects to expand the total sales force, including sales
personnel dedicated to the operations of the recently acquired automotive
division of MTD Products Inc. These individuals will directly market steel
processing services, engineered steel products and tool and dies. The
reorganization of sales efforts was designed to enable the Company to target
sales and marketing efforts at three distinct types of customers.
. OEM customers;
. Tier I suppliers; and
. Tool and die customers.
To supplement the sales and marketing efforts, the Company is in the
process of establishing an engineering and technical center in Michigan in close
proximity to its automotive customers. The Company's engineering staff at this
center will provide technical assistance and support to customers by offering
the customer, in many cases, technical assistance during the product development
stage. The location of the engineering and technical center allows for greater,
more frequent access to some of the Company's key customers. This reorganized
sales and marketing force is incentivized though a salary that is supplemented
by a bonus based on performance.
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OPERATIONS AND ENGINEERING
The Company operates its steel processing facilities on an integrated
basis. A significant portion of the flat-rolled steel used by the Company in its
blanking and stamping operations is supplied through its other steel processing
operations. With four tool and die facilities, the Company typically designs,
engineers and manufacturers substantially all of the tools and dies used in its
blanking and stamping operations.
Eleven of the Company's facilities were constructed by the Company and
were located and designed to facilitate the integrated flow of the Company's
processing operations. In addition, the Company has developed a just-in-time
delivery system that enables the Company to meet its customers' requirements for
deliveries on shorter lead times thereby minimizing their need to carry
significant inventory levels.
In October 1999, the Company implemented a performance measurement
system called the Shiloh Operating System ("SOS"). The objective of this system
is to support the Company's manufacturing strategy by motivating activities that
lead to continuous improvement in customer satisfaction, quality, cost and
delivery. These measures are primarily non-financial and are designed to provide
operational managers feedback on areas of improvement that require immediate
action. This information is reviewed by the executive management team on a
monthly basis for progress on improvement initiatives.
RAW MATERIALS
The basic materials required for the Company's operations are hot- and
cold-rolled steel. The Company obtains steel from a number of primary steel
producers, including Rouge Steel Company, Wheeling-Pittsburgh Steel, LTV Steel
Company, Warren Consolidated Steel, North Star BHP Steel LTD, Gallatin Steel and
Nucor Steel. A significant portion of the steel processing products and services
are provided to customers on a toll processing basis. Under these arrangements,
the Company charges a specified fee for operations performed without acquiring
ownership of the steel and being burdened with the attendant costs of ownership
and risk of loss. Through centralized purchasing, the Company attempts to
purchase raw materials at the lowest competitive prices for the quantity
purchased. The amount of steel available for processing is a function of the
production levels of primary steel producers.
COMPETITION
Competition for sales of steel blanks and stampings is intense, coming
from numerous companies, including independent domestic and international
suppliers, and from internal divisions of General Motors, Ford and
DaimlerChrysler, as well as independent domestic and international Tier I
suppliers, which have blanking facilities and greater financial and other
resources than the Company. The market for the Company's steel processing
operations is also highly competitive. The Company competes with a number of
steel processors in its region, such as Worthington Industries and Samuel Steel
Pickling Company, and primary steel producers, many of which also have
comparable facilities and greater financial and other resources than the
Company. The primary characteristics of competition encountered in each of these
markets are product quality, service and price and technological innovation.
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EMPLOYEES
As of December 31, 1999, the Company had approximately 3,220 employees.
The employees at five of the subsidiaries, an aggregate of approximately 1,530
employees, are covered by six collective bargaining agreements that are due to
expire in May 2000, June 2001, August 2001, May 2002, June 2002 and January
2005.
BACKLOG
Because the Company conducts its steel processing operations generally
on the basis of short-term orders, backlog is not a meaningful indicator of
future performance.
SEASONALITY
The Company typically, experiences decreased revenue and operating
income during its first fiscal quarter of each year, usually resulting from
generally slower overall automobile production during the winter months. The
Company's revenues and operating income in its third fiscal quarter can also be
affected by the typically lower automobile production activities in July due to
manufacturers' changeover in production lines.
ENVIRONMENTAL MATTERS
The Company is subject to environmental laws and regulations
concerning:
- emissions to the air;
- discharges to waterways; and
- generation, handling, storage, transportation, treatment and
disposal of waste and hazardous materials.
The Company is also subject to laws and regulations that can require
the remediation of contamination that exists at current or former facilities. In
addition, the Company is subject to other federal and state laws and regulations
regarding health and safety matters. Each of the production facilities has
permits and licenses allowing and regulating air emissions and water discharges.
While the Company believes that at the present time they are in substantial
compliance with environmental laws and regulations, these laws and regulations
are constantly evolving and it is impossible to predict whether compliance with
all liability under these laws and regulations may have a material adverse
effect on the Company in the future.
RECENT DEVELOPMENTS
On November 1, 1999 Shiloh acquired the automotive division ("MTD
Automotive") from MTD Products Inc for an aggregate purchase price of
approximately $31.1 million. Pursuant to the Purchase Agreement, the
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aggregate consideration consisted of $20 million in cash and a number of shares
equal to $20 million divided by the greater of (1) $14.00 or (2) to the extent
the average closing price of the Common Stock exceeded $14.50 per share, the
average closing price. Because the average closing price did not exceed $14.50
per share, the Company issued 1,428,571 shares of Common Stock to MTD Products
Inc. The closing price of the Common Stock of the Company as reported on the
Nasdaq Stock Market on November 1, 1999 was $9.50 per share.
The purchase price is subject to adjustment based upon the closing net
working capital. In addition, the aggregate consideration will be increased or
decreased based upon the performance of MTD Automotive during the first twelve
months subsequent to closing. The maximum amount of additional consideration to
be paid under the performance clause is $28.0 million. The maximum amount of
consideration to be refunded under the performance clause is $15.0 million. Such
purchase price adjustments will be paid half in cash and half in Common Stock.
MTD Automotive is primarily a Tier I supplier of highly engineered
metal stampings and modular assemblies to the North American automotive and
light truck industry. MTD Automotive manufactures modules used in the structural
and powertrain systems of a vehicle. MTD Automotive's structural modules consist
of bumper beams, door impact beams, steering column supports, chassis components
and structural underbody modules, and its powertrain products consist of deep
draw components, such as oil pans, transmission pans and valve covers. In
addition, MTD Automotive manufactures thermal heat-shielding components and
non-automotive products, including a variety of heat-treated lawn mower blades.
MTD Automotive also designs, engineers and produces precision tools and dies for
use in its own stamping operations as well as for sale to other customers, and a
portion of the welding and secondary assembly equipment that is used to
manufacture its modular systems. In addition, MTD Automotive has assembly and
welding capabilities, in-house tooling and special equipment design, development
and manufacturing, painting capabilities and heat treatment equipment.
MTD Automotive's operations are conducted at two manufacturing
facilities in Ohio, which utilize presses ranging in size from 100 tons to 2,500
tons. MTD Automotive provides product development, prototyping and project
management services that are accompanied by dedicated engineering support and
has sales and engineering support offices located near Detroit, Michigan.
MTD Automotive, at its facilities in Cleveland and Valley City, Ohio
has engaged in industrial manufacturing operations since 1936 and 1968, during
which time various hazardous substances have been handled at each facility. As a
consequence of these historic operations, the potential for contamination of
soil and groundwater may exist at the Cleveland facility, which the Company will
lease from MTD Products Inc and the Valley City facility, which the Company
owns. Although the Company could be liable for cleanup costs at these
facilities, MTD Products Inc is contractually obligated to indemnify the Company
against any such costs arising as a result of operations prior to the
acquisition of MTD Automotive on November 1, 1999.
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ITEM 2. PROPERTIES
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The Company is a Delaware holding corporation that conducts its
operations through twelve subsidiaries, seven located in north central Ohio,
three located in Michigan, one located in Georgia and one located in Mexico. The
Company believes substantially all of its property and equipment is in good
condition and that it has sufficient capacity to meet its current operational
needs. The Company considers full capacity of its steel processing facilities to
be three eight hour shifts for 5.5 days per week. At October 31, 1999, the
Company's steel processing operations were operating at near full capacity. The
Company's facilities, at 13 locations, all of which are owned (except for its
Utica and some of its Canton, Michigan and Cleveland, Ohio facilities), are as
follows:
<TABLE>
<CAPTION>
Location Square Footage Date of Operation Description of Use
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<S> <C> <C> <C>
Mansfield, Ohio 295,240 1955 Blanking/Tool and Die Production
Valley City, Ohio 489,481 (1) 1986 Blanking
Wellington,Ohio 85,667 1998 Tool and Die Production
Wellington, Ohio 226,316 1987 Stamping
Valley City, Ohio 260,000 1977 Other Steel Processing
Valley City, Ohio 244,000 1990 Other Steel Processing
Romulus, Michigan 170,600 (2) 1996 Blanking
Canton, Michigan 280,370 1996 Stamping/Tool and Die Production
Utica, Michigan 62,500 (3) 1997 Tool and Die Production
Pendergrass, Georgia 171,000 1998 Blanking
Saltillo, Mexico 140,825 (4) 2000 Blanking
Valley City, Ohio 250,000 (5) 1999 Stamping
Cleveland, Ohio 395,000 (5) 1999 Stamping/Tool and Die Production
</TABLE>
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(1) Includes a 117,481 square foot addition to this facility, which is
expected to be completed in July 2000.
(2) This facility is owned by Shiloh of Michigan, the Company's joint
venture with Rouge Steel. The Company is an 80% equity owner of Shiloh
of Michigan.
(3) The Company leases these facilities.
(4) The Company began construction of this facility in August 1999, and the
Company anticipates the facility will be completed in the second half
of fiscal 2000.
(5) The Company acquired these facilities on November 1, 1999 in
connection with the acquisition of MTD Automotive. The Valley City
facility is owned and the Cleveland facility is leased.
The facilities in Valley City, Ohio are in close proximity to each
other facilitating greater integration of operations and management. In
addition, the Company's operating facilities at Canton, Michigan consist of five
separate facilities (three of which are leased) located within a five mile
radius of each other.
ITEM 3. LEGAL PROCEEDINGS
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The Company is involved in various law suits arising in the ordinary
course of business. In management's opinion, the outcome of these matters will
not have a material adverse effect on the Company's financial condition.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
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On August 31, 1999 the stockholders of Shiloh Industries, Inc., at a
special meeting, approved the acquisition by the Company of MTD Automotive from
MTD Products Inc. On July 22, 1999, the record date for such special meeting,
there were 13,080,563 shares of common stock outstanding and entitled to vote.
There were 12,038,688 shares of common stock represented in person or by proxy
at the special meeting. The final results of the votes cast were as follows:
Against
Or Broker
For Withheld Abstain Non-votes
------------ --------- ---------- ---------
12,026,443 9,000 3,245 0
ITEM 4A. EXECUTIVE OFFICERS OF THE COMPANY
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The information under this Item 4A is furnished pursuant to Instruction
3 to Item 401(b) of Regulation S-K.
CURTIS E. MOLL, CHAIRMAN OF THE BOARD. Mr. Moll became Chairman of the
Board of the Company in April 1999, and he has served as a Director of the
Company since its formation in April 1993. Since 1980, Mr. Moll has served as
the Chairman of the Board and Chief Executive Officer of MTD Products Inc. Mr.
Moll also serves as a director of Sherwin Williams Company. Mr. C. Moll is 60
years old.
JOHN F. FALCON, PRESIDENT AND CHIEF EXECUTIVE OFFICER. Mr. Falcon has
been the President and Chief Executive Officer of the Company since April
1999. From 1995 to April 1999, Mr. Falcon held several positions at Lear
Corporation, including Director of Interiors for its General Motors division.
Prior to that time, he had over twenty years of experience at General Motors
where he held several positions, including, among others, Worldwide Operations
Manager for ignition and filtration products. Mr. J. Falcon is 51 years old.
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DOMINICK C. FANELLO, VICE CHAIRMAN OF THE BOARD. Mr. Fanello has been
Vice Chairman of the Board since October 1996 and a Director of the Company
since its formation in April 1993. Mr. Fanello served as Chairman of the Board
of the Company from April 1993 to October 1996. Mr. Fanello served as the Chief
Executive Officer of the Company from April 1993 to October 1996. Mr. Fanello
served as Chairman and Chief Executive Officer of Shiloh Corporation since 1954,
and was one of the founders of Shiloh Corporation and its predecessor. Mr.
Fanello also serves as a director of Park National Bank (Newark, Ohio), Richland
Trust Company and Rouge Industries, Inc. Mr. D. Fanello is 78 years old.
JAMES C. FANELLO, EXECUTIVE VICE PRESIDENT. Mr. Fanello has been the
executive Vice President and a Director of the Company since its formation in
April 1993. Mr. Fanello served as the President of Stamping and Blanking
operations from April 1993 to October 1996. Mr. Fanello has been employed by
Shiloh Corporation and its predecessor since 1951 during which time he has held
various positions, including President and Executive Vice President. Mr. J.
Fanello is 70 years old.
CRAIG A. STACY, CHIEF FINANCIAL OFFICER AND TREASURER. Mr. Stacy has
served as Chief Financial Officer and Treasurer since October 1996. Mr. Stacy
had been the Corporate Controller of the Company since 1994. Prior to joining
the Company, Mr. Stacy was employed by Price Waterhouse LLP (currently
PricewaterhouseCoopers LLP) and Ernst & Young LLP. Mr. Stacy is a Certified
Public Accountant. Mr. Stacy is 33 years old.
DAVID K. FRINK, EXECUTIVE VICE PRESIDENT OF STEEL PROCESSING. Mr. Frink
was named Executive Vice President of Steel Processing in July 1997 and Director
of Corporate Purchasing in May 1996. Mr. Frink was President of Steel Processing
from August 1996 to July 1997. Prior to August 1996, Mr. Frink had been the
plant general manager at Liverpool Coil Processing since June 1991. Mr. Frink is
52 years old.
NICKOLAS L. BLAUWIEKEL, CORPORATE VICE-PRESIDENT OF HUMAN RESOURCES.
Mr. Blauwiekel was named Corporate Vice President of Human Resources in November
of 1998. Prior to November 1998, Mr. Blauwiekel had been the Vice President,
Human Resources for Cooper Automotive, a manufacturer and supplier of automotive
components and a Division of Federal Mogul Corporation. Mr. Blauwiekel is 44
years old.
RONALD P. TURNER, VICE PRESIDENT OF SALES AND MARKETING. Mr. Turner was
named Vice President of Sales and Marketing in August 1999. Prior to his tenure
with the Company, Mr. Turner had been Vice President of Sales, Marketing and
Program Management of Worldwide Safety Systems, a division of TRW Inc. from
August 1996 to April 1999 and Vice President of Sales and Marketing of Seatbelt
Systems, a division of TRW Inc. from August 1994 to August 1996. Mr. R. Turner
is 52 years old.
LARRY D. PAQUIN, VICE PRESIDENT OF QUALITY AND CONTINUOUS IMPROVEMENT.
Mr. Paquin has served as Vice President of Quality and Continuous Improvement
since August 1999. Prior to his tenure with the Company, Mr. Paquin had been
Vice President and General Manager of Thomas Madison Incorporated from April
1996 to July 1999. Prior to that time, Mr. Paquin served as President of the
Crescive Die and Tool Company. Mr. L. Paquin is 56 years old.
MARK D. THEISEN, VICE PRESIDENT OF STRATEGIC PLANNING. Mr. Theisen was
named Vice President of Strategic Planning of MTD Automotive in August 1998
and served as general manager of MTD Automotive from June 1997 to August 1998.
Prior to that time Mr. Theisen had been Marketing Manager of MTD Automotive from
April 1995 to June 1997 and Sales Account Manager of MTD Automotive prior to
that time. Mr. M. Theisen is 37 years old.
PATRICK C. BOYER, VICE PRESIDENT OF TOOLING & DESIGN. Mr. Boyer was
named
11
<PAGE> 12
Vice President of Tooling and Design in June 1999. Prior to June 1999, Mr. Boyer
was Vice President of Marketing from November 1998 to May 1999. Prior to that
time, Mr. Boyer served as Plant General Manager of Sectional Stamping Inc. for a
six-year period. Mr. P. Boyer is 44 years old.
12
<PAGE> 13
PART II
ITEM 5. MARKET FOR COMPANY'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
- ---------------------------------------------------------------------------
As of the close of business on January 26, 2000, there were 162
stockholders of record for the Company's Common Stock. The Company believes that
the actual number of stockholders of the Company's Common Stock exceeds 300. The
Company has not declared or paid any cash dividends on shares of its equity
securities, including Common Stock, since its incorporation in April 1993. The
Company currently intends to retain earnings to supports its growth strategy and
does not anticipate paying dividends in the foreseeable future. The Common Stock
is traded on the Nasdaq National Market under the symbol "SHLO". On January 26,
2000, the closing price for the Company's Common Stock was $10.50 per share.
The Company's Common Stock commenced trading on June 29, 1993. The
table below sets forth the high and low bid prices for the Company's Common
Stock for its four quarters in each of 1998 and 1999.
High Low
- --------------------------------------------------------------------------------
1st Quarter
January 31, 1998 $19.50 $18.00
2nd Quarter
April 30, 1998 $23.375 $18.625
3rd Quarter
July 31, 1998 $22.125 $17.25
4th Quarter
October 31, 1998 $19.375 $14.25
1st Quarter
January 31, 1999 $16.375 $12.25
2nd Quarter
April 30, 1999 $14.625 $9.125
3rd Quarter
July 31, 1999 $15.00 $9.875
4th Quarter
October 31, 1999 $13.50 $8.125
On November 1, 1999, the Company issued 1,428,571 shares of its Common
Stock to MTD Products Inc as a portion of the consideration for the acquisition
by the Company of MTD Automotive. This issuance of shares of Common Stock was
exempt from the registration requirements of the Securities Act of 1933 based on
Section 4(2) of such Act.
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<PAGE> 14
ITEM 6. SELECTED FINANCIAL DATA
The following table sets forth selected consolidated financial data of
the Company. The data for each of the five years in the period ended October 31,
1999, are derived from the consolidated financial statements of the Company,
which have been audited by PricewaterhouseCoopers LLP, independent accountants.
The data presented below should be read in conjunction with "Management's
Discussion and Analysis of Financial Condition and Results of Operations" and
the Financial Statements and the notes thereto included elsewhere in this Annual
Report.
<TABLE>
<CAPTION>
(amounts in thousands, except per share data) Year Ended October 31,
---------------------------------------------------------------
1999 1998 1997 1996 1995
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Revenues $354,220 $ 299,350 $ 273,161 $ 219,466 $ 212,348
Cost of sales 291,265 242,499 214,343 173,836 173,734
-------- ---------- ----------- ----------- -----------
Gross profit 62,955 56,851 58,818 45,630 38,614
Selling, general and administrative expenses 31,441 26,832 25,557 17,086 14,341
-------- ---------- ----------- ----------- -----------
Operating income 31,514 30,019 33,261 28,544 24,273
Interest expense, net 7,380 5,130 2,161 111 402
Minority interest 474 342 394 123 ---
Other income (expense), net 66 (16) 274 (81) 64
-------- ---------- ----------- ----------- -----------
Income from continuing operations before taxes and
effect of change in accounting principle 24,674 25,215 31,768 28,475 23,935
Provision for income taxes 9,363 9,673 11,675 10,952 9,471
-------- ---------- ----------- ----------- -----------
Income from continuing operations before effect of
change in accounting principle 15,311 15,542 20,093 17,523 14,464
Loss from discontinued operations, net of income taxes --- --- --- (256) (289)
Loss on sale of discontinued operations, net of income
taxes(1) --- --- --- (9,589) ---
-------- ---------- ----------- ----------- -----------
Net Income $ 15,311 $ 15,542 $ 20,093 $ 7,678 $ 14,175
======== ========== =========== =========== ===========
EARNINGS PER SHARE:
Basic and diluted earnings per share:
Income from continuing operations before effect of
change in accounting principle per share $ 1.17 $ 1.19 $ 1.54 $ 1.35 $ 1.11
Loss from discontinued operations, net of income
taxes per share --- --- --- (0.02) (0.02)
Loss on sale of discontinued operations, net of income
taxes per share --- --- --- (0.74) ---
-------- ---------- ----------- ----------- -----------
Net income per share $ 1.17 $ 1.19 $ 1.54 $ 0.59 $ 1.09
======== ========== =========== =========== ===========
Basic weighted average number of common shares 13,081 13,061 13,032 13,012 13,003
Diluted weighted average number of common shares 13,085 13,103 13,066 13,032 13,003
OTHER DATA:
(Excludes Shafer Valve and acquisitions of businesses)
Capital expenditures $ 58,417 $ 67,968 $ 63,164 $ 37,482 $ 25,519
Depreciation and amortization 18,304 15,270 11,012 7,166 6,467
BALANCE SHEET DATA:
Working capital $ 85,312 $ 56,643 $ 45,483 $ 34,813 $ 36,405
Total assets 425,720 353,949 289,626 207,009 173,264
Total debt 171,450 135,865 96,400 52,933 23,306
Stockholders' equity 178,128 162,818 146,619 126,157 118,479
</TABLE>
(1) On July 9, 1996, the Company completed the sale of substantially all of the
issued and outstanding common stock of Shafer Value for approximately $13.2
million in cash. This disposition resulted in a $9.589 million loss after
tax and has been accounted for as a discounted operation.
14
<PAGE> 15
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
- -------------------------------------------------------------------------------
OF OPERATIONS
- -------------
GENERAL
The Company is a manufacturer of engineered products, which include
blanks, stamped components and value-added assemblies. The Company also designs,
engineers and manufactures precision tools and dies for the automotive and other
industries. In addition, the Company provides steel processing services, which
include pickling hot-rolled steel, slitting, edge trimming, roller leveling and
cutting-to-length of both hot- and cold-rolled steel. In fiscal 1999,
approximately 81.0% of the Company's revenues were generated by sales to the
automotive and light truck and heavy truck industries.
The Company's origins date back to 1950 when its predecessor, Shiloh
Tool & Die Mfg. Company, began to design and manufacture precision tools and
dies. As an outgrowth of its precision tool and die expertise, Shiloh Tool & Die
Mfg. Company expanded into blanking and stamping operations in the early 1960's.
In April 1993, Shiloh Industries, Inc. was organized as a Delaware corporation
to serve as a holding company for its seven operating subsidiaries, and in July
1993 completed an initial public offering of Common Stock.
In January 1996, the Company entered into a joint venture with Rouge
Steel Company and formed a limited liability company, Shiloh of Michigan,
L.L.C., to produce engineered steel blanks. The Company is an 80% equity owner
in this joint venture. On November 1, 1996, the Company acquired substantially
all of the assets of Greenfield Die & Manufacturing Corp., headquartered in
Canton, Michigan. Greenfield Die & Manufacturing Corp. provides a variety of
value-added processes, including tool and die design and build, stamping,
assembly, welding, prototyping operations and mold design and manufacture.
In August 1997, the Company acquired C&H Design Company, d/b/a C&H Die
Technology, headquartered in Utica, Michigan. C&H primarily serves the
automotive industry by providing tool and die design and manufacture. In
addition, in October 1997, the Company incorporated Jefferson Blanking, Inc. and
commenced operations in July 1998.
On November 1, 1999, the Company acquired MTD Automotive, the
automotive division of MTD Products Inc, headquartered in Cleveland, Ohio. MTD
Automotive is primarily a Tier I supplier and primarily serves the automotive
industry by providing metal stampings and modular assemblies.
The Company conducts its operations through the following subsidiaries:
Subsidiary Description of Principal Operations
---------- -----------------------------------
Shiloh Corporation Blanking/Tool and Die Production
Sectional Stamping, Inc. Stamping
Valley City Steel Company Steel Processing
Greenfield Die & Manufacturing Corp. Stamping/Tool and Die Production
Medina Blanking, Inc. Blanking/Tailor-Welded Blanking
Liverpool Coil Processing, Inc Steel Processing
C&H Design Company Tool and Die Production
Shiloh of Michigan, L.L.C. Blanking
Sectional Die Company Tool and Die Production
Jefferson Blanking, Inc. Blanking/Tailor-Welded Blanking
15
<PAGE> 16
Shiloh Automotive, Inc., dba MTD Stamping/Tool and Die Production
Automotive (1)
Shiloh de Mexico (2) Blanking/Tailor-Welded Blanking
(1) The acquisition of Shiloh Automotive, Inc. was completed on November 1,
1999.
(2) Shiloh de Mexico is a facility that is under construction in Saltillo,
Mexico and it is anticipated that construction will be completed during
the second half of fiscal 2000.
In analyzing the financial aspects of the Company's operations, you
should consider the following factors.
Plant utilization levels are very important to profitability because of
the capital intensive nature of these operations. Because the Company performs a
number of different operations, it is not meaningful to analyze simply the total
tons of steel processed. For example, blanking and stamping involve more
operational processes, from the design and manufacture of tools and dies to the
production and packaging of the final product, than the Company's other services
and therefore generally have higher margins.
A significant portion of the Company's steel processing and blanking
products and services is provided to customers on a toll processing basis. Under
these arrangements, the Company charges a tolling fee for the operations that it
performs without acquiring ownership of the steel and being burdened with the
attendant costs of ownership and risk of loss. Although the proportion of tons
of steel which the Company uses or process that is directly owned as compared to
toll processed may fluctuate from quarter to quarter depending on customers
needs, the Company estimates that of total tons used or processed in its
operations, approximately 85.6% in 1999, 87.4% in 1998 and 87.2% in 1997, were
used or processed on a toll processing basis. Revenues from toll processing as a
percent of total revenues were approximately 27.6% in 1999, 29.7% in 1998 and
28.3% in 1997. Revenues from operations involving directly owned steel include a
component of raw material cost whereas toll processing revenues do not.
Consequently, toll processing generally results in lower revenue, but higher
gross margin, than directly owned steel processing. Therefore, an increase in
the proportion of total revenues attributable to directly owned steel processing
may result in higher revenues but lower gross margins. The Company's stamping
operations use more directly owned steel than its other operations.
Changes in the price of scrap steel can have a significant effect on
the Company's results of operations because substantially all of its operations
generate engineered scrap steel. Engineered scrap steel is a planned by-product
of our processing operations. In addition, because only five of the Company's
facilities utilize directly owned steel, the Company is more susceptible to
changes in the price of scrap steel than changes in the price of raw material
steel.
Changes in the price of steel, however, also can impact the Company's
results of operations because raw material costs are by far the largest
component of cost of sales in processing directly owned steel. The Company
actively manages its exposure to changes in the price of steel, and, in most
instances, passes along the rising price of steel to its customers. At times,
however, the Company has been unable to do so.
The Company's results of operations have been adversely affected by a
large number of facility expansions and start-up operations in recent periods.
Operations at expanded and new facilities are typically less efficient than
established operations due to the implementation of new production processes. In
addition, the Company depends on customers to implement their purchase programs
in a timely manner, which affects the Company's ability to achieve satisfactory
plant utilization rates. When the customers fail to do so, results are
negatively impacted. In the Company's experience, operations at expanded or new
facilities may be adversely impacted by the above factors for several periods.
16
<PAGE> 17
Results of Operations
- ---------------------
The following table sets forth income statement data of the Company expressed as
a percentage of revenues for the periods indicated:
Years Ended October 31,
-------------------------------------
1999 1998 1997
------ ------ ------
Revenues 100.0% 100.0% 100.0%
Cost of sales 82.2 81.0 78.5
----- ----- -----
Gross profit 17.8 19.0 21.5
Selling, general and administrative
expense 8.9 9.0 9.4
----- ----- -----
Operating income 8.9 10.0 12.1
Interest expense 2.1 1.8 .8
Interest income * .1 .1
Minority interest .1 .1 .2
Other income (expense), net * * .1
----- ----- -----
Income before taxes 7.0 8.4 11.7
Provision for income taxes 2.6 3.2 4.3
----- ----- -----
Net income 4.3% 5.2% 7.4%
===== ===== =====
* indicates that amounts are greater than 0.0 percent but less than 0.1 percent.
17
<PAGE> 18
YEAR ENDED OCTOBER 31, 1999 COMPARED TO YEAR ENDED OCTOBER 31, 1998
REVENUES. Revenues increased by $54.9 million, or 18.3%, to $354.2
million for the year ended October 31, 1999 from $299.4 million for the
comparable period in 1998. The increase in revenues is primarily due to
increased volumes in our stamping operations, increased tailor-welded blanking
revenue, increased tool and die sales and the inclusion of a full year of
revenue at Jefferson Blanking. This increase was partially offset by a $4.0
million decrease in revenue from sales of scrap steel due to a decline in the
price of scrap steel per gross ton from an average of $94.0 per gross ton during
fiscal 1999 compared to an average of $137.0 per gross ton for fiscal 1998.
Revenues from the blanking and stamping operations for fiscal 1999 increased
approximately 24.3% from the comparable period in fiscal 1998, while revenue
from the other steel processing operations for fiscal 1999 decreased
approximately 1.3% from the comparable period in fiscal 1998. The percentage of
revenues from directly owned steel processed was 72.4% for fiscal 1999 compared
to 70.3% for fiscal 1998. Revenues from the toll processed steel were 27.6% for
fiscal 1999 and 29.7% for the comparable period in fiscal 1998. The increase in
the percentage of revenue from directly owned steel processed of approximately
2.1% was primarily due to the increase in directly owned steel processing
revenue and tonnage at certain facilities during the fiscal year due to a shift
in customer requirements.
GROSS PROFIT. Gross profit increased by $6.1 million, or 10.7%, to $63.0
million for fiscal 1999 from $56.9 million for the comparable period in 1998.
Gross margin decreased to 17.8% in fiscal 1999 from 19.0% for the comparable
period in 1998. Gross margin was negatively affected by the 31.4% decrease in
the average price of scrap steel per ton during fiscal 1999. In addition, gross
margin was negatively affected by difficulties that the Company experienced in
the implementation of one very significant tool and die program which caused
significant difficulties at one of our tool and die facilities which resulted in
production disruptions. Finally, gross margin was negatively impacted by
increased depreciation resulting from increased capital expenditures.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES. Selling, general and
administrative expenses increased by $4.6 million, or 17.2%, to $31.4 million in
fiscal 1999 from $26.8 million for the comparable period in fiscal 1998. As a
percentage of revenues, these expenses decreased slightly to 8.9% for fiscal
1999 from 9.0% for the comparable period in fiscal 1998. The largest component
of the increase, in dollars, arose principally from the addition of corporate
personnel and related benefit costs. In addition, we incurred increased
professional fees associated with personnel recruitment fees and legal fees
associated with the negotiation of union contracts.
OTHER. Interest expense increased to $7.5 million in fiscal 1999 from
$5.3 million for the comparable period in fiscal 1998 due primarily to increased
average borrowings during fiscal 1999 that were primarily incurred in connection
with significant capital expenditures made during fiscal 1998 and fiscal 1999.
Interest expense of approximately $2.5 million relating to expansion of several
facilities was capitalized in fiscal 1999. The provision for income taxes was
$9.4 million in fiscal 1999 compared with $9.7 million in fiscal 1998,
representing effective tax rates of 37.9% and 38.4%, respectively.
NET INCOME. Income from continuing operations for fiscal 1999 decreased
by $0.2 million, or 1.5%, to $15.3 million from $15.5 million for the comparable
period in fiscal 1998. This decrease was substantially the result of a decline
in scrap prices per gross ton, lower margins on specific tool and die projects,
increased depreciation resulting from increased capital expenditures and
increased interest expense
18
<PAGE> 19
resulting from increased borrowing for significant capital expenditures made
during fiscal 1998 and fiscal 1999.
YEAR ENDED OCTOBER 31, 1998 COMPARED TO YEAR ENDED OCTOBER 31, 1997
REVENUES. Revenues increased by $26.2 million, or 9.6%, to $299.4
million for the year ended October 31, 1998 from $273.2 million for the
comparable period in 1997. The increase in revenues is primarily due to the
inclusion in fiscal 1998 of $18.6 million in revenues from C&H and increased
revenues resulting from new programs and increased processing capacity at
Sectional Stamping. In addition revenues increased at Shiloh of Michigan and
Liverpool Coil Processing. Revenues from the blanking and stamping operations
for fiscal 1998 increased approximately 12.7% from the comparable period due
primarily to the inclusion of C&H and increased revenue at Shiloh of Michigan
and Sectional Stamping, while revenue from the other steel processing operations
for fiscal 1998 increased approximately 0.5% from the comparable period in
fiscal 1997 due primarily to increased revenue at Liverpool Coil Processing. The
percentage of revenues from directly owned steel processed was 70.3% for fiscal
1998 compared to 71.7% for fiscal 1997. Revenues from the toll processed steel
were 29.7% for fiscal 1998 and 28.3% for the comparable period in fiscal 1997
GROSS PROFIT. Gross profit decreased by $2.0 million, or 3.3%, to $56.9
million for fiscal 1998 from $58.8 million for the comparable period in 1997.
Gross margin decreased to 19.0% in fiscal 1998 from 21.5% for the comparable
period in 1997. The decrease in gross margin is primarily attributable to lower
margins in the tool and die business, a decrease in outsourcing by major steel
producing customers that impacted one of our steel processing operations, the
residual effects from the GM strike and Greenfield Die & Manufacturing Corp's
continued challenges associated with the integration of its operations as a
result of the acquisition and subsequent expansion of its facility.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES. Selling, general and
administrative expenses increased by $1.3 million, or 5.0%, to $26.8 million in
fiscal 1998 from $25.6 million for the comparable period in fiscal 1997. As a
percentage of revenues, these expenses decreased to 9.0% for fiscal 1998 from
9.4% for the comparable period in fiscal 1997. The largest component of the
increase, in dollars, arose principally from the inclusion of C&H. In addition,
the increase in dollars was attributable to pre-operating costs of Jefferson
Blanking.
OTHER. Interest expense increased to $5.3 million in fiscal 1998 from
$2.2 million for the comparable period in fiscal 1997 due primarily to increased
average borrowings during fiscal 1998 that were primarily incurred in connection
with the acquisition of C&H and other capital expenditures. Interest expense of
approximately $2.2 million relating to expansion of several facilities was
capitalized in fiscal 1998. The provision for income taxes was $9.7 million in
fiscal 1998 compared with $11.7 million in fiscal 1997, representing effective
tax rates of 38.4% and 36.8%. The increase in the effective tax rate is
primarily due to a return to a more sustainable level of state incentives for
capital investments.
NET INCOME. Income from continuing operations for fiscal 1998 decreased
by $4.6 million, or 22.7%, to $15.5 million from $20.1 million for the
comparable period in fiscal 1997. This decrease was substantially the result of
lower margins in the tool and die business, lower price for scrap steel that is
sold to the secondary steel industry and residual effects from the GM strike.
LIQUIDITY AND CAPITAL RESOURCES
At October 31, 1999, the Company had $85.3 million of working capital,
representing a current ratio of 2.7 to 1 and debt to total capitalization of
49.0%. As a result of this strong financial condition, the Company will be able
to continue its planned investment in new equipment and facilities through the
next fiscal year.
Net cash provided by operating activities is primarily generated from
net income of the Company
19
<PAGE> 20
plus non-cash charges for depreciation and amortization, which because of the
capital intensive nature of the Company's business, are substantial. Net cash
provided by operating activities for 1999 was $13.4 million as compared to $28.2
million for the comparable period in fiscal 1998. Fluctuations in working
capital were the primary factors causing the decrease in net cash provided by
operations from fiscal 1998 to fiscal 1999. Net cash provided by operating
activities has historically been used by the Company to fund a portion of its
capital expenditures.
Capital expenditures, excluding acquisitions, were $58.4 million during
the year ended October 31, 1999 and $68.0 million during fiscal 1998. The
capital expenditures made during 1999 were primarily for expansions of existing
facilities of approximately $41.1 million, $10.9 million in new construction for
the blanking facility in Saltillo, Mexico, as well as, an information system and
sustaining capital expenditures of $6.4 million.
The Company's total capital budget for fiscal 2000 amounts to
approximately $55.8 million. The capital expenditures in fiscal 2000 are
anticipated to be primarily for facility expansions and additions, which are
being made to support expected increases in existing business, anticipated new
business and to enhance productivity. In addition to using cash generated by
operating activities to fund such capital expenditures, the Company anticipates
funding such activities through additional financing.
In September 1999, the Company entered into a new agreement ("the
Agreement") with KeyBank, National Association, as agent for a group of lenders.
The Agreement provides for loans and letters of credit up to $210.0 million. The
term of this facility matures in September 2004. The Company has the option to
select the applicable interest rate at KeyBank's prime rate or the LIBOR rate
plus a factor determined by a pricing matrix (ranging from 0.5% to 1.75% for the
prime rate and ranging from 1.0% to 2.75% for the LIBOR rate) based on funded
debt to earnings before interest, taxes, depreciation and amortization. As of
October 31, 1999, the factor as determined by the pricing matrix was 1.75%. The
terms of the new facility also require an annual commitment fee based on the
amount of unused commitments under the facility and a factor determined by a
pricing matrix (ranging from 0.25% to 0.5%) based on funded debt to earnings
before interest, taxes, depreciation and amortization. The Agreement also
provides for the incurrence of debt under standby letters of credit and for the
advancement of funds under a discretionary line of credit. The maximum amount of
debt that may be incurred under each of these sources of funds is $15.0 million.
As of October 31, 1999, $166.1 million was outstanding under the Agreement.
The Agreement is collateralized by a first priority security interest
in all of the Company's and subsidiaries' existing and after-acquired accounts
receivable, inventory and machinery and equipment. All of the obligations under
the Agreement are fully and unconditionally guaranteed by all of the existing
and future domestic subsidiaries.
The Agreement requires the Company to meet certain financial covenants
and ratios including minimum interest coverage, minimum net worth, and maximum
leverage. The Agreement also contains non-financial covenants that restrict
actions of the Company with respect to incurrence of additional debt, dividends,
transactions with affiliates, asset sales, acquisitions, mergers, prepayments of
other debt, liens and encumbrances.
The Company executed a demand promissory note as of December 6, 1996 in
favor of The Richland
20
<PAGE> 21
Bank in the aggregate principal amount of $4.0 million. Interest accrues on the
outstanding principal balance under that facility at LIBOR plus 0.75%
In March 1995, Medina County, Ohio issued on the Company's behalf an
aggregate of $5.4 million in principal amount of variable rate industrial
revenue bonds due 2010, all of which was outstanding as of October 31, 1999.
These bonds are secured by a letter of credit. The funds from these bonds were
used to finance a portion of the expansion at the steel pickling operations in
Valley City, Ohio.
YEAR 2000
The Company did not experience any significant malfunctions or errors
in its operating or business systems when the date changed from 1999 to 2000.
Based on operations since January 1, 2000, the Company does not expect any
significant impact to its on-going business as a result of the "Year 2000
issue." However, it is possible that the full impact of the date change, which
was of concern due to computer programs that use two digits instead of four
digits to define years, has not been fully recognized. For example, it is
possible that Year 2000 or similar issues such as leap year-related problems may
occur with billing, payroll, or financial closings at month, quarterly or year
end. The Company believes that any such problems are likely to be minor and
correctable. In addition, the Company could still be negatively impacted if its
customers or suppliers are adversely affected by the Year 2000 or similar
issues. The Company currently is not aware of any significant Year 2000 or
similar problems that have arisen for its customers and suppliers.
As of October 31, 1999, the Company spent approximately $11.7 million
on a new business system; however, the Company cannot quantify the amount
directly related to year 2000 compliance.
EFFECT OF INFLATION
Inflation generally affects the Company by increasing the interest
expense of floating rate indebtedness and by increasing the cost of labor,
equipment and raw materials. The general level of inflation has not had a
material effect on the Company's financial results.
OUTLOOK
The statements contained in this Annual Report of Form 10-K that are
not historical facts are forward-looking statements. These forward-looking
statements are subject to certain risks and uncertainties with respect to the
Company's operations in fiscal 1999 as well as over the long term such as,
without limitations, (i) the Company's dependence on the automotive and light
truck and heavy truck industries, which are highly cyclical, the dependence of
the automotive and light truck industry on consumer spending which is subject to
the impact of domestic and international economic conditions and regulations and
policies regarding international trade, (ii) the ability of the Company to
accomplish its strategic objectives with respect to external expansion through
selective acquisitions and internal expansion, (iii) increases in the price of,
or limitations on the availability of steel, the Company's primary raw material
or decreases in the price of scrap steel (iv) risks associated with integrating
operations of acquired companies, including the recent acquisition of the
automotive division of MTD Products Inc., (v) potential disruptions or
inefficiencies in operations due to or during facility expansions or start-up
facilities, (vi) risks related to labor relations, labor expenses or work
stoppages involving the Company, its customers or suppliers. Any or all of these
risks and uncertainties could cause actual results to differ materially from
those reflected in the forward-looking statements. These forward-looking
statements reflect management's analysis only as of the date of the filing of
this Annual Report on Form 10-K. The Company undertakes no obligation to
publicly revise these forward-looking statements to reflect events or
circumstances that arise after the date hereof. In addition to
21
<PAGE> 22
the disclosure contained herein, readers should carefully review risks and
uncertainties contained in other documents the Company files from time to time
with the Securities and Exchange Commission.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
- --------------------------------------------------------------------
The Company's major market risk exposure is primarily due to possible
fluctuations in interest rates as they relate to its variable rate debt. The
Company does not enter into derivative financial investments for trading or
speculation purposes. As a result, the Company believes that its market risk
exposure is not material to the Company's financial position, liquidity or
results of operations.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
- ----------------------------------------------------
Index to Financial Statements
Report of Independent Accountants
Consolidated Balance Sheets at October 31, 1999 and 1998
Consolidated Statements of Income for three years ended October 31, 1999
Consolidated Statements of Cash Flows for the three years ended October 31, 1999
Consolidated Statements of Stockholders' Equity for the three years ended
October 31, 1999
Notes to Consolidated Financial Statements
Financial Statement Schedule for the three years ended October 31, 1999 is
included in Item 14 of this Annual Report of Form 10-K.
II - Valuation and Qualifying Accounts and Reserves
All other schedules are omitted because they are not applicable or the required
information is shown in the financial statements or notes thereto.
22
<PAGE> 23
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors
and Stockholders of
Shiloh Industries, Inc.
In our opinion, the consolidated financial statements listed in the
accompanying index present fairly, in all material respects, the financial
position of Shiloh Industries, Inc. and its subsidiaries at October 31, 1999 and
1998 and the results of their operations and their cash flows for each of the
three years in the period ended October 31, 1999 in conformity with accounting
principles generally accepted in the United States. In addition, in our opinion,
the financial statement schedule listed in the accompanying index presents
fairly, in all material respects, the information set forth therein when read in
conjunction with the related consolidated financial statements. These financial
statements and financial statement schedule are the responsibility of the
Company's management; our responsibility is to express an opinion on these
financial statements and financial statement schedule based on our audits. We
conducted our audits of these statements in accordance with auditing standards
generally accepted in the United States 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.
/s/ PricewaterhouseCoopers LLP
Cleveland, Ohio
December 9, 1999
23
<PAGE> 24
SHILOH INDUSTRIES, INC.
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
October 31, October 31,
1999 1998
---------------- ----------------
<S> <C> <C>
ASSETS
- ------
Cash and cash equivalents $ 1,575,804 $ 642,723
Accounts receivable, net 79,670,183 46,802,379
Inventories 47,118,809 44,783,947
Deferred income taxes 1,580,889 1,290,357
Prepaid expenses 5,758,354 2,134,108
-------------- ---------------
Total current assets 135,704,039 95,653,514
-------------- ---------------
Property, plant and equipment, net 269,626,549 240,440,580
Goodwill, net 11,647,496 12,056,054
Other assets 8,741,554 5,798,894
-------------- ---------------
Total assets $ 425,719,638 $ 353,949,042
============== ===============
LIABILITIES AND STOCKHOLDERS' EQUITY
- ------------------------------------
Accounts payable $ 38,677,150 $ 23,863,107
Accrued income taxes 1,293,522 1,020,204
Advanced billings 225,289 2,836,203
Other accrued expenses 10,195,880 11,290,543
-------------- --------------
Total current liabilities 50,391,841 39,010,057
-------------- --------------
Long-term debt 171,450,000 135,865,000
Deferred income taxes 22,308,668 14,562,840
Long-term benefit liabilities 2,991,120 1,693,349
Other liabilities 449,676 ---
-------------- --------------
Total liabilities 247,591,305 191,131,246
-------------- --------------
Stockholders' equity:
Preferred stock, $.01 per share; 5,000,000 shares
authorized and unissued --- ---
Common stock, par value $.01 per share; 25,000,000
shares authorized; 13,080,563 shares issued and
outstanding at October 31, 1999 and 1998 130,805 130,805
Paid-in capital 39,399,805 39,399,805
Retained earnings 138,597,723 123,287,186
-------------- --------------
Total stockholders' equity 178,128,333 162,817,796
-------------- --------------
Total liabilities and stockholders' equity $ 425,719,638 $ 353,949,042
============== ==============
</TABLE>
The accompanying notes are an integral part of these financial statements.
24
<PAGE> 25
SHILOH INDUSTRIES, INC.
CONSOLIDATED STATEMENTS OF INCOME
<TABLE>
<CAPTION>
Years Ended October 31,
----------------------------------------------------------
1999 1998 1997
---- ---- ----
<S> <C> <C> <C>
Revenues $ 354,219,562 $ 299,350,361 $ 273,161,251
Cost of sales 291,264,912 242,499,691 214,343,391
------------- ------------- -------------
Gross profit 62,954,650 56,850,670 58,817,860
Selling, general and administrative expenses 31,441,216 26,832,133 25,556,837
------------- ------------- -------------
Operating income 31,513,434 30,018,537 33,261,023
Interest expense 7,488,570 5,303,218 2,219,003
Interest income 109,331 173,898 57,832
Minority interest 473,975 341,638 394,207
Other income (expense), net 65,682 (16,086) 274,081
------------- ------------- -------------
Income before taxes 24,673,852 25,214,769 31,768,140
Provision for income taxes 9,363,315 9,672,938 11,674,793
------------- ------------- -------------
Net income $ 15,310,537 $ 15,541,831 $20,093,347
============= ============= =============
Basic earnings per share:
Net income $ 1.17 $ 1.19 $ 1.54
============= ============= =============
Weighted average number of common shares 13,080,563 13,060,794 13,032,229
============= ============= =============
Diluted earnings per share:
Net income $ 1.17 $ 1.19 $ 1.54
============= ============= =============
Weighted average number of common shares 13,085,283 13,103,144 13,065,950
============= ============= =============
</TABLE>
The accompanying notes are an integral part of these financial statements.
25
<PAGE> 26
SHILOH INDUSTRIES, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
Years Ended October 31,
--------------------------------------------------------
1999 1998 1997
---- ---- ----
<S> <C> <C> <C>
Cash Flows From Operating Activities:
Net income $ 15,310,537 $ 15,541,831 $ 20,093,347
Adjustment to reconcile net income from continuing
operations to net cash provided by operating activities:
Depreciation and amortization 18,303,985 15,270,408 11,012,383
Minority interest (473,975) (341,638) (394,207)
Deferred income taxes 7,455,296 4,335,709 2,809,839
(Gain) on sale of assets (60,059) (46,074) (53,065)
Changes in operating assets and liabilities, net of
working capital changes resulting from acquisitions:
Accounts receivable (32,867,804) 3,348,720 (8,846,145)
Inventories (2,334,862) (13,635,587) (2,539,552)
Prepaids and other assets (5,097,082) 350,877 (335,682)
Payables and other liabilities 12,855,914 4,299,695 9,086,189
Accrued income taxes 273,318 (896,129) 503,834
------------- ------------- ------------
Net cash provided by operating activities 13,365,268 28,227,812 31,336,941
------------- ------------- ------------
Cash Flows From Investing Activities:
Capital expenditures (58,416,797) (67,967,994) (63,164,276)
Proceeds from sale of assets 11,452,211 69,400 157,134
Acquisitions, net of cash --- --- (13,694,436)
------------- ------------- ------------
Net cash used in investing activities (46,964,586) (67,898,594) (76,701,578)
------------- ------------- ------------
Cash Flows From Financing Activities:
Proceeds from short-term borrowings 63,808,000 (3,000,000) 29,700,000
Repayments of short-term borrowings (37,713,000) 42,465,000 (29,200,000)
Proceeds from long-term borrowings 30,458,000 --- 44,250,000
Repayments of long-term borrowings (20,968,000) --- (1,283,352)
Payment of debt financing costs (1,052,601) --- ---
Issuance of common stock --- 656,817 368,525
------------- ------------- ------------
Net cash provided by financing activities 34,532,399 40,121,817 43,835,173
------------- ------------- ------------
Net increase (decrease) in cash and cash equivalents 933,081 451,035 (1,529,464)
Cash and cash equivalents at beginning of year 642,723 191,688 1,721,152
------------- ------------- ------------
Cash and cash equivalents at end of year $ 1,575,804 $ 642,723 $ 191,688
============= ============= ============
</TABLE>
The accompanying notes are an integral part of these financial statements.
26
<PAGE> 27
SHILOH INDUSTRIES, INC.
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
<TABLE>
<CAPTION>
COMMON
COMMON STOCK ADDITIONAL
STOCK ($.01 PAR PAID-IN RETAINED
SHARES VALUE) CAPITAL EARNINGS TOTAL
------------ ---------- ---------- ------------ ------------
<S> <C> <C> <C> <C> <C>
October 31, 1996 13,011,663 $ 130,116 $38,375,152 $ 87,652,008 $126,157,276
Issuance of common shares 27,100 271 368,254 --- 368,525
Net income --- --- --- 20,093,347 20,093,347
------------- ---------- ----------- ------------ ------------
October 31, 1997 13,038,763 130,387 38,743,406 107,745,355 146,619,148
Issuance of common shares 41,800 418 656,399 --- 656,817
Net income --- --- --- 15,541,831 15,541,831
------------- ---------- ----------- ------------ ------------
October 31, 1998 13,080,563 130,805 39,399,805 123,287,186 162,817,796
Net income --- --- --- 15,310,537 15,310,537
------------- ---------- ----------- ------------ ------------
October 31, 1999 13,080,563 $ 130,805 $ 39,399,805 $138,597,723 $178,128,333
============= ========== =========== ============ ============
</TABLE>
The accompanying notes are an integral part of these financial statements.
27
<PAGE> 28
SHILOH INDUSTRIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1 - Business:
- ------------------
Shiloh Industries, Inc. (the "Company") is a full service manufacturer
of blanks and stamped components for the automotive and light truck, heavy truck
and other industrial markets.
NOTE 2 - Summary of Significant Accounting Policies:
- ----------------------------------------------------
PRINCIPLES OF CONSOLIDATION
The consolidated financial statements include the accounts of the
Company and all wholly-owned and majority-owned subsidiaries. All significant
intercompany transactions have been eliminated.
REVENUE RECOGNITION
The Company recognizes revenue upon product shipment. Revenues include
both direct sales as well as toll processing revenue. Toll processing revenue is
generated as a result of the Company performing steel processing operations
without acquiring ownership of the material. Revenues include $97,937,323,
$88,792,119 and $77,383,879 of toll processing revenue for 1999, 1998 and 1997,
respectively.
EMPLOYEE BENEFIT PLANS
The Company accrues the cost of defined benefit pension plans which
cover a majority of the Company's employees in accordance with Statement of
Financial Accounting Standards ("SFAS") No. 87. The plans are funded based on
the requirements and limitations of the Employee Retirement Income Security Act
of 1974. The majority of employees of the Company participate in discretionary
profit sharing plans administered by the Company. The Company also provides
postretirement benefits to certain employees (Note 10).
GOODWILL
Goodwill represents the excess of cost over the fair value of net
assets of acquired entities and is amortized on a straight-line basis over its
expected benefit period of 30 years. During 1999, 1998 and 1997, goodwill
amortization amounted to $408,558, $408,558 and $297,544, respectively.
Accumulated amortization was $1,192,661 and $784,103 at October 31, 1999 and
1998, respectively.
The Company uses an undiscounted cash flow method to review the
recoverability of the carrying value of goodwill and other long-lived assets.
CASH AND CASH EQUIVALENTS
Cash and cash equivalents include checking accounts and all highly
liquid investments with an original maturity of three months or less. Cash
equivalents are stated at cost, which approximates market value.
INVENTORIES
Inventories are valued at the lower of cost or market, cost being
determined primarily by the last-in, first-out ("LIFO") method and the balance
determined by the first-in, first-out ("FIFO") method, which approximates
average cost.
28
<PAGE> 29
NOTE 2 - Summary of Significant Accounting Policies - (continued):
- ------------------------------------------------------------------
PROPERTY, PLANT AND EQUIPMENT
Property, plant and equipment are stated at cost. Expenditures for
maintenance, repairs and renewals are charged to expense as incurred, whereas
major improvements are capitalized. The cost of these improvements is
depreciated over their estimated useful lives. Useful lives range from five to
twelve years for furniture and fixtures and machinery and equipment, fifteen to
twenty years for land improvements and thirty to forty years for buildings and
their related improvements. Depreciation is computed using principally the
straight-line method for financial reporting purposes and accelerated methods
for income tax purposes.
INCOME TAXES
The Company utilizes the asset and liability method in accounting for
income taxes which requires the recognition of deferred tax liabilities and
assets for the expected future tax consequences of temporary differences between
the carrying amount and tax basis of assets and liabilities.
CONCENTRATION OF CREDIT RISK
The Company sells products to customers primarily in the automotive,
light truck and heavy truck industries. The Company performs on-going credit
evaluations of its customers and generally does not require collateral when
extending credit. The Company maintains a reserve for potential credit losses.
Such losses have historically been within management's expectations. Currently,
the Company does not have financial instruments with off-balance sheet risk. The
Company's sales to one customer represented 10.8% of consolidated revenues in
1999.
FAIR VALUE OF FINANCIAL INSTRUMENTS
The carrying amount of cash and investments, trade receivables and
payables approximates fair value because of the short maturity of those
instruments. The carrying value of the Company's long-term debt is considered to
approximate the fair value of these instruments based on the borrowing rates
currently available to the Company for loans with similar terms and maturities.
ACCOUNTING 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 and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
STOCK-BASED COMPENSATION
The Company applies Accounting Principles Board Opinion No. 25 in
accounting for stock-based employee compensation; however, the impact of the
fair value based method described in SFAS No. 123, "Accounting for Stock-Based
Compensation" is presented in the notes to the financial statements (Note 11).
RECLASSIFICATIONS
Certain amounts in the 1998 financial statements have been reclassified
to conform to the current year's presentation.
29
<PAGE> 30
NOTE 2 - Summary of Significant Accounting Policies - (continued):
- ------------------------------------------------------------------
EARNINGS PER SHARE
Basic earnings per share are computed by dividing net income by the
weighted average number of common shares outstanding during the period. Diluted
earnings per share reflects the potential dilutive effect of the Company's stock
option plan by adjusting the denominator using the treasury stock method.
The outstanding stock options under the Company's Key Employee Stock
Incentive Plan (Note 11) are included in the diluted earnings per share
calculation to the extent they are dilutive. The only reconciling item between
the average outstanding shares in each calculation is the stock options
outstanding. The following is a reconciliation of the numerator and denominator
of the basic and diluted earnings per share computation for net income.
<TABLE>
<CAPTION>
1999 1998 1997
---- ---- ----
<S> <C> <C> <C>
Net income $ 15,310,537 $ 15,541,831 $ 20,093,347
============== ============== ==============
Basic weighted average shares 13,080,563 13,060,794 13,032,229
Effect of dilutive securities:
Stock options 4,720 42,350 33,721
-------------- -------------- --------------
Diluted weighted average shares 13,085,283 13,103,144 13,065,950
============== ============== ==============
Basic earnings per share $1.17 $1.19 $1.54
============== ============== ==============
Diluted earnings per share $1.17 $1.19 $1.54
============== ============== ==============
</TABLE>
30
<PAGE> 31
NOTE 2 - Summary of Significant Accounting Policies - (continued):
- ------------------------------------------------------------------
NEW ACCOUNTING STANDARDS:
In June 1997, the Financial Accounting Standards Board ("FASB")
issued SFAS No. 130, "Reporting Comprehensive Income" effective for fiscal years
beginning after December 15, 1997. This Statement establishes standards for
reporting and display of comprehensive income and its components in a full set
of general-purpose financial statements. The Company has no material items of
other comprehensive income.
In June 1997, the FASB issued SFAS No. 131, "Disclosures about
Segments of an Enterprise and Related Information" effective for fiscal years
beginning after December 15, 1997. This Statement requires that public business
enterprises report certain information about operating segments in annual and
interim financial statements. It also requires that public business enterprises
report certain information about their products and services, the geographic
areas in which they operate, and their major customers. The Company has only one
operating segment; accordingly adoption of this statement did not have a
material impact on the Company's financial disclosures.
In February 1998, SFAS No. 132, "Employer's Disclosures about Pensions
and Other Post retirement Benefits" ("SFAS No. 132") was issued. This Statement
establishes standards for disclosing information about an entity's pensions and
other post retirement benefits. In fiscal year 1999, the Company adopted the
disclosure provisions of SFAS No. 132 (Note 10).
In June 1998, SFAS No. 133, "Accounting for Derivative Instruments and
Hedging Activities" ("SFAS No. 133") was issued effective for all fiscal
quarters of fiscal years beginning after June 15, 1999. This Statement
establishes accounting and reporting standards for derivative instruments,
including certain derivative instruments embedded in other contracts,
(collectively referred to as derivatives) and for hedging activities. It
requires that an entity recognize all derivatives as either assets or
liabilities in the statement of financial position and measure those instruments
at fair value. In June 1999, the FASB issued SFAS No. 137 "Accounting For
Derivative Instruments and Hedging Activities-Deferral of the Effective Date of
FASB Statement No. 133." This delays the effective date of SFAS No. 133 until
fiscal years beginning after June 15, 2000. The Company is currently evaluating
the impact, if any, of SFAS No. 133, but does not expect adoption to materially
affect its financial position, results of operations or financial statement
disclosures.
The Accounting Standards Executive Committee Statement of Position
98-1, "Accounting for the Costs of Computer Software Developed or Obtained for
Internal Use" ("SOP 98-1"), issued in March 1998 and effective for fiscal years
beginning after December 15, 1998 with earlier application permitted, provides
guidance on accounting for the costs of computer software developed or obtained
for internal use. The Company adopted this statement for the year ended October
31, 1999 resulting in no significant effect in the Company's consolidated
financial statements. Unamortized computer software costs totaled $11,715,971
and $8,430,471 at October 31, 1999 and 1998, respectively.
The Accounting Standards Executive Committee Statement of Position 98-5,
"Accounting for the Costs of Start-up Activities" ("SOP 98-5"), issued in April
1998 and effective for fiscal years beginning after December 15, 1998 with
earlier application permitted, provides guidance on financial reporting of start
up costs and organization costs. The Company is currently evaluating the
provisions of this statement.
31
<PAGE> 32
NOTE 3 - Acquisitions:
- ----------------------
During fiscal 1997, the Company acquired the entities described below,
which were accounted for by the purchase method of accounting:
On August 29, 1997, the Company acquired substantially all the assets
of C&H Design Company, d.b.a. C&H Die Technology ("C&H") for an aggregate cash
purchase of approximately $10.9 million, including acquisition costs. C&H,
headquartered in Utica, Michigan, provides tool design and build services for
the automotive industry.
On November 1, 1996, the Company acquired substantially all the assets
and assumed certain liabilities of Greenfield Die & Manufacturing Corporation
("Greenfield") for approximately $25.3 million, including acquisition costs,
comprised of approximately $17.3 million of cash and approximately $7.6 million
of assumed liabilities. Greenfield, headquartered in Canton, Michigan, provides
the automotive industry a variety of processes including tool and die design and
build, stamping, assembly, welding, prototyping operations and mold design and
build.
The purchase prices have been allocated to the assets purchased and the
liabilities assumed based upon the fair value on the dates of acquisitions, as
follows:
(In thousands) C&H Greenfield
--- ----------
Net working capital, other than cash $ 3,364 $ 8,018
Property, plant and equipment 2,764 9,801
Goodwill 4,805 7,519
-------- ---------
Purchase price $ 10,933 $ 25,338
======== =========
The operating results of these acquired businesses have been included
in the consolidated statement of income from the dates of acquisition.
On the basis of a pro forma consolidation of the results of operations
as if the C&H acquisition had taken place at the beginning of fiscal 1997,
consolidated net sales, net income and earnings per share would have been $288.7
million, $20.2 million and $1.55 per share, respectively, for fiscal 1997. Such
pro forma amounts are not necessarily indicative of what the actual results
would have been if the acquisitions had been effective at the beginning of the
1997 fiscal year and are unaudited.
NOTE 4 - Accounts Receivable:
- -----------------------------
Accounts receivable in the consolidated balance sheet are expected to
be collected within one year and are net of provisions for doubtful accounts, in
the amount of $1,080,641 and $919,704 at October 31, 1999 and 1998,
respectively.
32
<PAGE> 33
NOTE 5 - Inventories:
- ---------------------
October 31, October 31,
1999 1998
------------ ------------
Inventories consist of the following:
Raw materials $ 22,565,387 $ 17,725,301
Work-in-process 12,629,005 21,012,774
Finished goods 11,449,478 7,253,874
------------ ------------
Total at average cost 46,643,870 45,991,949
LIFO reserve 474,939 (1,208,002)
------------ ------------
Total $ 47,118,809 $ 44,783,947
============ ============
Average cost inventory is net of reserves to reduce certain inventory
from cost to net realizable value. Such reserves aggregated $144,888 and
$664,140 at October 31, 1999 and 1998, respectively. Of the total inventory at
average cost at October 31, 1999 and 1998, $28,923,588 and $23,234,573,
respectively, were valued using the LIFO method.
NOTE 6 - Other Assets:
- ----------------------
Other assets consist of the following:
October 31, October 31,
1999 1998
------------ ------------
Cash surrender value of life insurance $ 3,462,978 $ 3,311,111
Long-term pension assets 2,699,581 1,409,608
Other 2,578,995 1,078,175
------------ ------------
Total $ 8,741,554 $ 5,798,894
============ ============
33
<PAGE> 34
NOTE 7 - Property, Plant and Equipment:
- ---------------------------------------
Property, plant and equipment consist of the following:
October 31, October 31,
1999 1998
-------------- --------------
Land $ 9,436,412 $ 6,098,992
Buildings and improvements 103,971,677 87,837,749
Machinery and equipment 193,122,689 180,474,182
Furniture and fixtures 11,477,394 9,896,521
Construction in progress 43,041,471 31,768,168
-------------- --------------
Total, at cost 361,049,643 316,075,612
Less: Accumulated depreciation (91,423,094) (75,635,032)
-------------- --------------
Net property, plant and equipment $ 269,626,549 $ 240,440,580
============== ==============
Depreciation expense was $17,838,676, $14,861,850 and $10,698,783 for
1999, 1998 and 1997, respectively.
During the years ended October 31, 1999, 1998 and 1997, interest
expense incurred was $10,019,015, $7,535,211 and $4,105,467, respectively, of
which $2,530,445, $2,231,993 and $1,886,464 was capitalized as part of property,
plant and equipment, respectively.
The Company had commitments for capital expenditures of approximately
$10.6 million at October 31, 1999.
34
<PAGE> 35
NOTE 8 - Financing Arrangements:
- --------------------------------
Long-term debt consists of the following:
<TABLE>
<CAPTION>
October 31, October 31,
1999 1998
------------ ------------
<S> <C> <C>
Revolving credit loan - interest at 8.19% and 5.85% at
October 31, 1999 and 1998, respectively $166,050,000 $130,465,000
Variable rate industrial development bond, collateralized by
letter of credit, weighted average interest rate at 3.56% payable 5,400,000 5,400,000
------------ ------------
on February 1, 2010 $171,450,000 $135,865,000
============ ============
</TABLE>
In September 1999, the Company entered into a new agreement ("the
Agreement") with KeyBank, National Association, as agent for a group of lenders.
The Agreement provides for loans and letters of credit up to $210.0 million. The
term of this facility matures in September 2004. The Company has the option to
select the applicable interest rate at KeyBank's prime rate or the LIBOR rate
plus a factor determined by a pricing matrix (ranging from 0.5% to 1.75% for the
prime rate and ranging from 1.0% to 2.75% for the LIBOR rate) based on funded
debt to earnings before interest, taxes, depreciation and amortization. As of
October 31, 1999, the factor as determined by the pricing matrix was 1.75 %. The
terms of the new Shiloh facility also require an annual commitment fee based on
the amount of unused commitments under the facility and a factor determined by a
pricing matrix (ranging from 0.25% to 0.5%) based on funded debt to earnings
before interest, taxes, depreciation and amortization. The Agreement also
provides for the incurrence of debt under standby letters of credit and for the
advancement of funds under a discretionary line of credit. The maximum amount of
debt that may be incurred under each of these sources of funds is $15.0 million.
The Agreement is collateralized by a first priority security interest
in all of the Company's and its subsidiaries' existing and after-acquired
accounts receivable, inventory and machinery and equipment. All of the
obligations under the Agreement are fully and unconditionally guaranteed by all
of the existing and future domestic subsidiaries.
The Agreement requires the Company to meet certain financial covenants
and ratios including minimum interest coverage, minimum net worth, and maximum
leverage. The Agreement also contains non-financial covenants that restrict
actions of the Company with respect to incurrence of additional debt, dividends,
transactions with affiliates, asset sales, acquisitions, mergers, prepayments of
other debt, liens and encumbrances.
Prior to January 22, 1998, the Company had a $70.0 million revolving
credit facility ("Shiloh Facility") with KeyBank National Association
("KeyBank") and Shiloh of Michigan had a $28.0 million credit facility (the
"Shiloh of Michigan Facility") with KeyBank. On January 22, 1998, the Company
increased the Shiloh Facility to $135.0 million. The Company had the option to
select the applicable interest rate at KeyBank's prime rate or the LIBOR rate
plus a factor. On January 22, 1998, the Company used $28.0 million of the Shiloh
Facility to retire the outstanding balance of the Shiloh of Michigan Facility.
The Company executed a demand promissory note as of December 6, 1996 in
favor of The Richland Bank in the aggregate principal amount of $4.0 million.
Interest accrues on the outstanding principal balance under that facility at
LIBOR plus 0.75%
In March, 1995, Medina County, Ohio issued on the Company's behalf an
aggregate of $5.4 million in principal amount of variable rate industrial
revenue bonds due 2010, all of which were drawn upon as of
35
<PAGE> 36
October 31, 1996. These bonds are secured by a letter of credit. The funds from
these bonds were used to finance a portion of the expansion at the steel
pickling operations in Valley City, Ohio.
Interest paid amounted to $9,843,836, $7,322,471, and $4,006,614 during
1999, 1998 and 1997, respectively.
Total availability at October 31, 1999 under the Company's Credit
Agreement and Line of Credit was $214,000,000, of which $42,550,000 was unused.
At October 31, 1999 the scheduled maturities of all long-term debt
during the next five years is as follows:
2000 ---
2001 ---
2002 ---
2003 ---
2004 $171,450,000
36
<PAGE> 37
NOTE 9 - Leases:
- ----------------
The Company leases certain equipment under operating leases. Rent
expense under operating leases for 1999, 1998 and 1997 was $1,869,524,
$1,154,806 and $474,482, respectively. Future minimum lease payments under
operating leases are as follows at October 31, 1999:
Operating
---------
2000 $2,627,601
2001 2,440,734
2002 2,321,715
2003 1,844,579
2004 1,824,316
----------
$11,058,945
===========
Note 10 - Employee Benefit Plans:
- ---------------------------------
The Company maintains pension plans covering most employees. The assets
of the plans consist primarily of insurance and annuity contracts. The Company
provides postretirement health care benefits to certain employees (and their
dependents) who retire early, but coverage generally continues only until age
65. Components of the plan obligations and assets, and the recorded liability at
October 31, 1999 and 1998 are as follows:
<TABLE>
<CAPTION>
Pension Benefits Other Post Retirement Benefits
1999 1998 1999 1998
------------- ------------- ------------- -------------
<S> <C> <C> <C> <C>
Benefit obligation at beginning of year $(11,818,613) $(10,757,359) $ (2,476,343) $ (2,166,260)
Service cost (1,066,042) (1,120,899) (115,162) (121,174)
Interest cost (856,849) (806,801) (159,894) (168,186)
Actuarial (gain) loss 65,335 (104,315) 765,241 (110,630)
Amendments -- (241,912) (102,402) --
Benefits paid 1,620,771 1,212,673 130,000 89,907
------------ ------------ ------------ ------------
Benefit obligation at end of year (12,055,398) (11,818,613) (1,958,560)
(2,476,343)
Fair value of plan assets at beginning 10,306,864 10,191,992 -- --
Actual return on plan assets 515,727 521,265 -- --
Employer contribution 1,434,255 807,729 -- --
Benefits paid (1,620,771) (1,214,122) --
------------ ------------ ------------ ------------
Fair value of plan assets at end of year 10,636,075 10,306,864 -- --
Funded status (1,419,323) (1,511,749) (1,958,560) (2,476,343)
Unrecognized:
Transition obligation/(asset) 728,124 814,948 375,230 401,840
Prior service cost 869,982 924,932 102,402 --
Net loss/(gain) 744,006 502,157 129,808 923,684
Prepaid (accrued) benefit cost
before adjustment for minimum liability 922,789 730,288 (1,351,120) (1,150,819)
Adjustment to recognize minimum
liability (1,010,129) -- -- --
------------ ------------ ------------ ------------
Prepaid (accrued) benefit cost $ (87,340) $ 730,288 $ (1,351,120) $ (1,150,819)
============ ============ ============ ============
</TABLE>
37
<PAGE> 38
Note 10 - Employee Benefit Plans - (continued)
- ----------------------------------------------
The components of net periodic benefit cost for the years ended October 31 are
as follows:
<TABLE>
<CAPTION>
Pension Benefits Other Postretirement Benefits
1999 1998 1999 1998
----------- ----------- ------------ -------------
<S> <C> <C> <C> <C>
Service cost $ 1,066,042 $ 1,120,899 $ 115,162 $ 121,174
Interest cost 856,849 806,801 159,894 168,186
Expected return on plan assets (824,549) (815,360) -- --
Net amortization and deferrals 143,412 126,921 55,245 60,905
----------- ------------ ------------ -------------
Net periodic benefit cost $ 1,241,754 $ 1,239,261 $ 330,301 $ 350,265
=========== ============ ============ =============
</TABLE>
The projected benefit obligation, accumulated benefit obligation and
fair value of plan assets for the pension plan with accumulated benefit
obligations in excess of plan assets were $3,113,087, $3,113,087, and $2,617,138
respectively as of October 31, 1999 and $3,089,868, $3,089,868, and $2,210,068
respectively as of October 31, 1998.
Actuarial assumptions used in the calculation of the recorded liabilities are as
follows:
Weighted-average assumptions as 1999 1998 1999 1998
of December 31 ---- ---- ---- ----
Discount rate 7.75% 7.25% 7.75% 7.25%
Expected return on plan assets 8.00% 8.00% --- ---
Rate of compensation increase 4.50% 4.50% --- ---
Projected healthcare cost trend rate --- --- 7.00% 8.00%
Assumed healthcare cost trend rates have a significant effect on the
amounts reported for the healthcare plan. A one-percentage point charge in
assumed healthcare cost trend rates would have the following effects at October
31, 1999:
One-Percentage One-Percentage
Point Increase Point Decrease
-------------- --------------
Effect on total of service and interest $ 343,108 $ 223,755
cost components
Effect on post retirement obligation $ 2,284,258 $ 1,691,668
In addition to the defined benefit plans described above, the Company
recorded expense of $1,473,566, $1,440,520 and $1,292,320 during fiscal 1999,
1998 and 1997, respectively, for its defined contribution plans.
During 1997, the Company initiated a Supplemental Executive Retirement
Plan ("SERP") for key employees of the Company. The Company has agreed to pay
each covered employee a certain sum annually for ten (10) years upon retirement
or, in the event of death, to their designated beneficiary. A benefit is also
paid if the employee terminates employment (other than by discharge for cause).
Compensation expense relating to this plan was $285,593, $216,028 and
$1,359,000 in fiscal 1999, 1998 and 1997, respectively. The benefits accrued
under this plan were $1,289,435 at October 31, 1999.
38
<PAGE> 39
NOTE 11 - Stock and Bonus Plans:
- --------------------------------
1993 KEY EMPLOYEE STOCK INCENTIVE PLAN
The Company maintains a Key Employee Stock Incentive Program (the
"Incentive Plan"), which authorizes grants to officers and other key employees
of the Company and its subsidiaries of (i) stock options that are intended to
qualify as "incentive stock options", (ii) nonqualified stock options and (iii)
restricted stock awards. An aggregate of 1,200,000 shares of common stock,
subject to adjustment upon occurrence of certain events to prevent dilution or
expansion of the rights of participants that might otherwise result from the
occurrence of such events, has been reserved for issuance upon the exercise of
stock options.
Only non-qualified stock options have been granted to date and all
options have been granted at market price at the date of grant. Options expire
over a period not to exceed ten years from the date of grant. Options granted in
1997, 1998 and 1999 are exercisable over five years. A summary of option
activity under the plan follows:
Number of Weighted
Shares Under Average Option
Option Price
--------------- ---------------
Outstanding at October 31, 1996 251,400 $ 14.50
Granted --- ---
Exercised (27,100) $ 11.00
Canceled (2,500) $ 16.50
---------------
Outstanding at October 31, 1997 221,800 $ 14.91
Granted 138,500 $ 18.625
Exercised (41,800) $ 12.72
Canceled (4,000) $ 18.625
---------------
Outstanding at October 31, 1998 314,500 $ 16.78
Granted 243,500 $ 13.327
Exercised --- $ ---
Canceled (29,400) $ 15.91
---------------
Outstanding at October 31, 1999 528,600 $ 15.305
===============
Exercise prices for options outstanding as of October 31, 1999 ranged
from $11.00 to $18.625, with 50% of options outstanding having exercise prices
in the range of $16.50 to $18.625 per share.
In accordance with the provisions of SFAS No. 123 "Accounting for
Stock-Based Compensation," ("SFAS 123") the Company has elected to continue
applying the intrinsic value approach under the Accounting Principles Board
Opinion No. 25 in accounting for its stock-based compensation plans.
Accordingly, the Company does not recognize compensation expense for stock
options when the stock price at the grant date is equal to or greater than the
fair market value of the stock at that date.
39
<PAGE> 40
NOTE 11 - Stock and Bonus Plans: (continued)
- --------------------------------------------
SFAS 123 requires pro forma information on net income and earnings per share as
if the fair value method for valuing stocks options, as prescribed by SFAS 123,
had been applied. The Company's pro forma information follows:
1999 1998
---- ----
Net Income $14,384 $ 14,776
Earnings per share:
Basic 1.10 1.13
Diluted 1.10 1.13
The fair value of these options was estimated at the date of grant
using the Black-Sholes option-pricing model with the following weighted average
assumptions for 1999 and 1998:
1999 1998
---- ----
Risk-free interest 4.5% 6.10%
Dividend yield 0.00% 0.00%
Volatility factor - market 26.7% 26.00%
Expected life of options - years 4.0 4.0
EXECUTIVE INCENTIVE BONUS PLAN
In 1996, the Company replaced the Executive Bonus Plan with the
Short-Term Incentive Plan (the "Bonus Plan") which provides annual incentive
bonuses to its eligible employees. The Bonus Plan provides for an aggregate
annual bonus pool (the "Aggregate Amount") equal to 5% of the Company's
operating earnings. Incentives up to the Aggregate Amount may be paid to the
individual participants, in the case of the Chief Executive Officer, by the
Board of Directors upon recommendation by the Compensation Committee and the
Board of Directors. In determining the individual incentives, in the case of the
Chief Executive Officer, 75% of the incentive depends upon meeting the corporate
goal for return on equity and 25% of the incentive depends upon meeting
specific, project-oriented goals. These goals are established by the Board of
Directors. In the case of corporate executives eligible for the Bonus Plan, 65%
of the incentive depends upon meeting the goal for return on equity and 35% of
the incentive depends upon specific goals established by the Chief Executive
Officer. Finally, in the case of the remaining employees eligible for the Bonus
Plan, 50% of the incentive depends upon meeting the goal for operating return on
assets established by the Chief Executive Officer and 50% of the incentive
depends upon specific goals as established by the Chief Executive Officer.
During fiscal 1999, 1998 and 1997, amounts of $383,000, $1,089,000 and $750,038,
respectively, were paid under the existing bonus plan for that fiscal year.
40
<PAGE> 41
NOTE 12 - Income Taxes:
- -----------------------
The components of the provision for income taxes on income from continuing
operations were as follows:
<TABLE>
<CAPTION>
Year Ended October 31,
-------------------------------------------------------
1999 1998 1997
-------------- -------------- -----------------
<S> <C> <C> <C>
Current:
Federal $ 1,522,303 $ 4,377,388 $ 7,276,000
State and local 385,716 959,841 1,588,954
-------------- -------------- --------------
1,908,019 5,337,229 8,864,954
Deferred
Total 7,455,296 4,335,709 2,809,839
-------------- -------------- --------------
$ 9,363,315 $ 9,672,938 $ 11,674,793
============== ============== ==============
</TABLE>
Temporary differences and carryforwards which give rise to deferred tax
assets and liabilities were comprised of the following:
October 31, October 31,
1999 1998
------------- ----------------
Deferred tax assets:
Bad debt reserves $ 398,355 $ 310,158
Inventory reserves 343,244 902,904
State income and franchise taxes 1,288,754 1,238,766
Accrued group insurance 262,142 313,902
AMT carryforwards 1,764,389 ---
Accrued vacation reserves 565,100 455,852
Capital loss carryforwards 4,912,050 4,912,050
Post retirement benefits 460,816 384,892
Pension obligations 157,797 321,194
Other reserves 293,001 318,132
------------- --------------
10,445,648 9,157,850
Less: Valuation allowance (4,912,050) (4,912,050)
------------- --------------
Total deferred tax assets 5,533,598 4,245,800
Deferred tax liabilities:
Fixed assets (23,196,560) (15,226,348)
Mark to market (408,275) (610,509)
Joint venture investment (2,161,246) (1,266,234)
Goodwill (495,296) (397,183)
Other --- (18,009)
------------- --------------
Net deferred tax liability $ (20,727,779) $ (13,272,483)
============= ===============
41
<PAGE> 42
NOTE 12 - Income Taxes: (continued)
- -----------------------------------
The valuation allowance relates to capital loss carryforwards which are not
expected to be utilized.
A reconciliation of the statutory federal income tax rate to the effective
income tax rate is as follows:
Years Ended October 31,
---------------------------
1999 1998 1997
---- ---- -----
Federal income tax at statutory rate 34.0% 35.0% 35.0%
State and local income taxes 2.0 3.2 1.8
FAS 109 rate differential 0.8 --- ---
Other 1.1 0.2 ---
----- ----- -----
Effective income tax rate 37.9% 38.4% 36.8%
===== ===== =====
Income taxes paid, net of refunds, amounted to $1,606,386, $6,372,737
and $8,757,066 for the years 1999, 1998, and 1997, respectively.
At October 31, 1999, the Company had available a capital loss
carryforward of approximately, $12,791,797 expiring in 2001, if not utilized.
The capital loss was incurred on the sale of Shafer Valve and a full valuation
allowance has been provided.
NOTE 13- Related Party Transactions:
- ------------------------------------
The Company had sales to a significant shareholder of $10,943,440,
$6,564,094 and $7,042,217 for the years 1999, 1998 and 1997, respectively. At
October 31, 1999 and 1998, the Company had receivable balances of $1,982,032 and
$1,322,785 respectively, due from this shareholder.
42
<PAGE> 43
NOTE 14 - Quarterly Results of Operations (Unaudited):
- ------------------------------------------------------
<TABLE>
<CAPTION>
(In Thousands, except per share data)
---------------------------------------------------------
First Second Third Fourth
October 31, 1999 Quarter Quarter Quarter Quarter
- ---------------- ---------- ---------- ---------- ---------
<S> <C> <C> <C> <C>
Revenues $ 81,601 $ 89,565 $ 83,869 $ 99,185
Gross Profit 12,397 16,281 15,148 19,129
Operating Income 4,683 8,192 8,428 10,210
Net Income 2,031 4,014 4,133 5,133
Net Income per Share (Basic/Diluted) .16 .31 .32 .39
---------- ---------- ---------- ---------
Weighted Average Number of Shares
Basic 13,081 13,081 13,081 13,081
Diluted 13,093 13,085 13,086 13,085
</TABLE>
In the fourth quarter, the Company recorded a favorable after tax LIFO
adjustment in the amount of $780,000.
<TABLE>
<CAPTION>
October 31, 1998
- ----------------
<S> <C> <C> <C> <C>
Revenues $ 73,930 $ 82,038 $ 64,368 $ 79,015
Gross Profit 15,028 17,158 12,139 12,526
Operating Income 8,891 10,373 5,657 5,097
Net Income 4,925 5,838 2,984 1,794
Net Income per Share (Basic/Diluted) .38 .45 .23 .14
--------- --------- ---------- ---------
Weighted Average Number of Shares
Basic 13,039 13,045 13,078 13,081
Diluted 13,088 13,120 13,126 13,098
October 31, 1997
- ----------------
Revenues $ 64,568 $ 70,689 $ 65,460 $ 72,444
Gross Profit 12,577 15,102 14,276 16,863
Operating Income 7,252 8,986 7,556 9,467
Net Income 4,530 5,437 4,649 5,477
Net Income per Share (Basic/Diluted) .35 .42 .36 .42
--------- --------- ---------- ---------
Weighted Average Number of Shares
Basic 13,013 13,039 13,039 13,039
Diluted 13,040 13,058 13,087 13,082
</TABLE>
43
<PAGE> 44
NOTE 15 - Commitments and Contingent Liabilities:
- -------------------------------------------------
The Company is a party to several lawsuits and claims arising in the
normal course of its business. In the opinion of management, the Company's
liability or recovery, if any, under pending litigation and claims would not
materially affect its financial condition, results of operations or cash flows.
NOTE 16 - Subsequent Event:
- ---------------------------
Effective November 1, 1999, the Company acquired the automotive
division of MTD Products Inc, a significant shareholder of the Company. Pursuant
to the terms of the transaction, the Company acquired substantially all of the
assets of MTD Automotive ("MTDA"), a division of MTD Products Inc, for an
aggregate consideration of approximately $31.1 million consisting of $20.0
million in cash and $9.6 million in Company common stock and $1.5 million in
acquisition costs. The portion of cash was paid on the effective date of the
acquisition and was financed by the Company's revolving credit facility and the
related common stock was issued on the same date. The purchase price is subject
to adjustment based upon the closing net working capital. In addition, the
aggregate consideration will be increased or decreased based upon the
performance of MTDA during the first twelve months subsequent to closing. The
maximum amount of additional consideration to be paid under the performance
clause is $28.0 million. The maximum amount of consideration to be refunded
under the performance clause is $15.0 million. Such purchase price adjustments
will be paid half in cash and half in stock. Of the $20.0 million cash portion
of the purchase price, only $12.5 million will be used in the purchase price
allocation. The amount of $7.5 million is contingent consideration and will not
enter into the purchase price until the contingency is resolved. Of the
1,428,571 shares of common stock issued, 535,714 shares are considered
contingent consideration and will not enter into the purchase price allocation
until the reserve contingency is resolved.
An audited pro forma purchase price allocation based on the estimated fair value
of assets acquired and liabilities assumed on November 1, 1999 is as follows (in
millions):
Working Capital $29.9
Negative Goodwill ($6.9)
MTDA, a division of MTD Products Inc is a manufacturer of stamped parts
and components for the automotive industry. Their manufactured products are sold
primarily to original equipment manufacturers located in the United States. MTDA
net sales were $192.8 million in its fiscal year ended July 31, 1999.
The acquisition of MTDA will be accounted for utilizing the purchase
method, whereby the purchase price will be allocated to the underlying assets
and liabilities based upon their estimated fair values at the date of the
acquisition. The Company's Statement of Income will include the operations on
MTDA beginning on November 1, 1999.
44
<PAGE> 45
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
- -----------------------------------------------------------------------
FINANCIAL DISCLOSURE
- --------------------
Not applicable.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE COMPANY
- ---------------------------------------------------------
Information with respect to Directors of the Company is set forth in
the Proxy Statement under the heading "Election of Directors," which information
is incorporated herein by reference. Information regarding the executive
officers of the Company is included as Item 4A of Part I of this Annual Report
on Form 10-K as permitted by the Instruction 3 item 405 of Regulation S-K.
Information required by Item 405 of Regulation S-K is set forth in the Proxy
Statement under the heading "Section 16(a) Beneficial Ownership Reporting
Compliance," which information is incorporated herein by reference.
ITEM 11. EXECUTIVE COMPENSATION
- --------------------------------
Information with respect to executive compensation is set forth in the
Proxy Statement under the heading "Compensation of Executive Officers" and under
the heading "Election of Directors - Compensation Committee Interlocks and
Insider Participation and Certain Relationships and Related Transactions," which
information is incorporated herein by reference (except for the Compensation
Committee Report on Executive Compensation and the Comparative Stock Performance
Graph).
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
- ------------------------------------------------------------------------
Information with respect to security ownership of certain beneficial
owners and management is set forth in the Proxy Statement under the heading
"Beneficial Ownership of Common Stock," which information is incorporated
herein by reference.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
- --------------------------------------------------------
Information with respect to certain relationships and related
transactions is set forth in the Proxy Statement under the heading "Election of
Directors - Compensation Committee Interlocks and Insider Participation and
Certain Relationships and Related Transactions," which information is
incorporated herein by reference.
45
<PAGE> 46
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
- -------------------------------------------------------------------------
(a) The following documents are filed as a part of this Annual Report
on Form 10-K on Item 8.
1. Financial Statements.
Report of Independent Accountants
Consolidated Balance Sheets at October 31, 1999
and 1998.
Consolidated Statement of Income for the three
years ended October 31, 1999.
Consolidated Statements of Cash Flows for the
three years ended October 31, 1999.
Consolidated Statement of Stockholders' Equity
for the three years ended October 31, 1999.
Notes of Consolidated Financial Statements.
2. Financial Statement Schedule. The following
consolidated financial statement schedule of the
Company and its subsidiaries and the report of
the independent accountants thereon are filed as
part of this Annual Report on Form 10-K and
should be read in conjunction with the
consolidated financial statements of the Company
and its subsidiaries included in the Annual
Report on Form 10-K.
46
<PAGE> 47
SCHEDULE II
SHILOH INDUSTRIES, INC.
VALUATION AND QUALIFYING ACCOUNTS AND RESERVES
<TABLE>
<CAPTION>
Additions
Balance at Charged to Balance at
Beginning Costs and End
Description of Period Expenses Deductions of Period
----------- --------- -------- ---------- ---------
<S> <C> <C> <C> <C>
Valuation account for accounts receivable
Year ended October 31, 1999 $ 919,704 $ 189,793 $ 28,856 $ 1,080,641
Year ended October 31, 1998 849,554 106,549 36,399 919,704
Year ended October 31, 1997 913,070 5,452 68,968 849,554
Reserve for excess, slow moving and
potentially obsolete material
Year ended October 31, 1999 $ 664,140 $ 94,888 $ 614,140 $ 144,888
Year ended October 31, 1998 137,938 589,140 62,938 664,140
Year ended October 31, 1997 82,181 137,938 82,181 137,938
Valuation allowance for deferred tax assets
(a)
Year ended October 31, 1999 $4,912,050 $ --- $ --- $ 4,912,050
Year ended October 31, 1998 4,912,050 --- --- 4,912,050
Year ended October 31, 1997 5,046,335 --- 134,285 4,912,050
</TABLE>
Schedules not listed above have been omitted because they are not applicable or
are not required or the information required to be set forth therein is included
in the consolidated financial statements or notes thereto.
47
<PAGE> 48
3. Exhibits
2.1 Asset Purchase Agreement, dated June 21, 1999, among
the Company, Shiloh Automotive, Inc. and MTD Products
Inc is incorporated by reference to Appendix A of
the Company's Proxy Statement on Schedule 14A as
filed with the Securities and Exchange Commission on
August 3, 1999.
2.2 First Amendment to Asset Purchase Agreement, dated
August 31, 1999, among the Company, Shiloh
Automotive, Inc. and MTD Products Inc.
2.3 Closing Agreement, dated as of October 31, 1999, by
and among the Company, Shiloh Automotive, Inc. and
MTD Products Inc is incorporated by reference to
Exhibit 2.1 of the Company's Current Report on Form
8-K as filed with the Securities and Exchange
Commission on November 15, 1999.
3.1 (i) Restated Certificate of Incorporation of the
Company is incorporated herein by reference to
Exhibit 3.1 (i) of the Company's Annual Report on
Form 10-K for the fiscal year ended October 31, 1995
(Commission File No. 0-21964).
(ii) By-Laws of the Company are incorporated here in
reference to Exhibit 3.1 (ii) of the Company's Annual
Report on Form 10-K for the fiscal year ended October
31, 1995 (Commission File No. 0-21964).
4.1 Specimen certificate for the Common Stock, par value
$.01 per share, of the Company is incorporated herein
by reference to Exhibit 4.1 of the Company's Annual
Report on Form 10-K for the fiscal year ended October
31, 1995 (Commission File No. 0-21964).
4.2 Stockholders Agreement, dated June 22, 1993, by and
among the Company, MTD Products Inc and the
stockholders named therein is incorporated herein by
reference to Exhibit 4.3 of the Company's Annual
Report on Form 10-K for the fiscal year ended October
31, 1995 (Commission File No. 0-21964).
4.3 Registration Rights Agreement, dated June 22, 1993,
by and among the Company, MTD Products Inc and the
stockholders named therein is incorporated herein by
reference to Exhibit 4.3 of the Company's Annual
Report on Form 10-K for the fiscal year ended October
31, 1995 (Commission File No. 0-21964).
4.4 First Amendment to Stockholders Agreement, dated
March 11, 1994, by and among the Company, MTD
Products Inc and the stockholders named therein is
incorporated herein by reference to Exhibit 4.4 of
the Company's Annual Report on Form 10-K for the
fiscal year ended October 31, 1995 (Commission File
No. 0-21964).
48
<PAGE> 49
10.1 Loan Agreement, dated February 1, 1995, by and
between Medina County, Ohio and Valley City Steel
Company is incorporated herein by reference to
Exhibit 10.4 of the Company's Quarterly Report on
Form 10-Q for the fiscal quarter ended April 30, 1996
(Commission File No. 0-21964).
10.2 Operating Agreement for Shiloh of Michigan, L.L.C.,
dated January 2, 1996, by and among Shiloh of
Michigan, L.L.C., Rouge Steel Company and the Company
is incorporated herein by reference to Exhibit 10.5
of the Company's Quarterly Report on Form 10-Q for
the fiscal quarter ended April 30, 1996 (Commission
File No. 0-21964).
10.3 Master Unsecured Demand Promissory Note of Shiloh
Corporation to The Richland Trust Company of
Mansfield, dated April 2, 1991, is incorporated
herein by reference to Exhibit 10.7 of the Company's
Annual Report of Form 10-K for the fiscal year ended
October 31, 1995 (Commission File No. 0.21964).
*10.4 1993 Key Employee Stock Incentive Plan is
incorporated herein by reference to Exhibit A the
Company's Proxy Statement on Schedule 14A for the
fiscal year ended October 31, 1997 (Commission File
No. 0-21964).
*10.5 Executive Incentive Bonus Plan is incorporated herein
by reference to Exhibit 10.9 of the Company's Annual
Report on Form 10-K for the fiscal year ended October
31, 1995 (Commission File No. 0-21964).
*10.6 Indemnification Agreement, dated July 2, 1993, by and
between the Company and Robert L. Grissinger (with an
attached schedule identifying the directors and
officers of the Company that have entered into an
identical agreement) is incorporated herein by
reference to Exhibit 10.10 of the Company's Annual
Report on From 10-K for the fiscal year ended
December 31, 1995 (Commission File No. 0-21964).
*10.7 Option Agreement, dated May 28, 1993, by and between
the Company and Robert L. Grissinger (with an
attached schedule identifying the other optionees
that have entered into option agreements with the
Company) is incorporated herein by reference to
Exhibit 10.15 of the Company's Annual Report on From
10-K for the fiscal year ended December 31, 1995
(Commission File No. 0-21964).
10.8 Master Unsecured Demand Promissory Note of Shiloh
Corporation to The Richland Trust Company of
Mansfield, dated December 6, 1996 is incorporated
herein by reference to Exhibit 10.1 of the Company's
Quarterly Report on Form 10-Q/A for the fiscal
quarter ended January 1, 1997 (Commission File No.
0-21964).
49
<PAGE> 50
*10.9 Supplemental Retirement Trust Agreement, dated June
1, 1997, by and among the Company, First Union
National Bank of North Carolina and Robert L.
Grissinger is incorporated herein by reference to
Exhibit 10.15 to the Company's Annual Report on Form
10-K for the fiscal year ended October 31, 1997
(Commission File No. 0-21964).
10.10 Credit Agreement, dated September 13, 1999 by and
among the Company, the banks listed on Annex A
thereto and KeyBank National Association, as
Administrative Agent.
10.11 Transitional Services Agreement, dated October 31,
1999, by and among the Company, Shiloh Automotive,
Inc. and MTD Products Inc.
21.1 Subsidiaries of the Company.
23.1 Consent of PricewaterhouseCoopers LLP.
24.1 Powers of Attorney.
27.1 Financial Data Schedule.
(b) Reports on Form 8-K.
No reports on Form 8-K were filed by the Company during the quarter
ended October 31, 1999.
* Reflects management contract or other compensatory arrangement
required to be filed as an exhibit pursuant to Item 14 (c) of
this Report.
50
<PAGE> 51
SIGNATURES
Pursuant to the requirements of Section 13 of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
SHILOH INDUSTRIES, INC.
Date: January 31, 2000 By: /s/John F. Falcon
--------------------------------
John F. Falcon,
President and Chief Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed below by the following persons on behalf of the
registrant and the capabilities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
* Vice Chairman and Director January 31, 2000
- -----------------------------------
Dominick C. Fanello
/s/ Jack Falcon President and Chief Executive Officer and January 31, 2000
- ----------------------------------- Director (Principal Executive Officer)
Jack Falcon
* Treasurer and Chief Financial Officer (Principal January 31, 2000
- ----------------------------------- Accounting and Principal Financial Officer)
Craig A. Stacy
* Director January 31, 2000
- -----------------------------------
James C. Fanello
*
- ----------------------------------- Chairman and Director January 31, 2000
Curtis E. Moll
* Director January 31, 2000
- -----------------------------------
Ronald C. Hauser
* Director January 31, 2000
- -----------------------------------
David J. Hessler
* Director January 31, 2000
- -----------------------------------
Richard S. Gray
* Director January 31, 2000
- -----------------------------------
James A. Karman
* Director January 31, 2000
- -----------------------------------
Theodore K. Zampetis
</TABLE>
*The undersigned, by signing his name hereto, does sign and execute this Annual
Report on Form 10-K pursuant to the Powers of Attorney executed by the
above-named officers and Directors of the Company and filed with the Securities
and Exchange Commission on behalf of such officers and Directors.
By: /s/ John F. Falcon
-----------------------------------
John F. Falcon, Attorney-In-Fact
51
<PAGE> 52
EXHIBIT INDEX
Exhibit No. Exhibit Description
----------- -------------------
2.1 Asset Purchase Agreement, dated June 21, 1999, among
the Company, Shiloh Automotive, Inc. and MTD Products
Inc. is incorporated by reference to Appendix A of
the Company's Proxy Statement on Schedule 14A as
filed with the Securities and Exchange Commission on
August 3, 1999.
2.2 First Amendment to Asset Purchase Agreement, dated
August 31, 1999, among the Company, Shiloh
Automotive, Inc. and MTD Products Inc.
2.3 Closing Agreement, dated as of October 31, 1999, by
and among the Company, Shiloh Automotive, Inc. and
MTD Products Inc. is incorporated by reference to
Exhibit 2.1 of the Company's Current Report on Form
8-K as filed with the Securities and Exchange
Commission on November 15, 1999.
3.1(i) Restated Certificate of Incorporation of the
Company is incorporated herein by reference to
Exhibit 3.1 (i) of the Company's Annual Report on
Form 10-K for the fiscal year ended October 31, 1995
(Commission File No. 0-21964).
(iii) By-Laws of the Company are incorporated here in
reference to Exhibit 3.1 (ii) of the Company's Annual
Report on Form 10-K for the fiscal year ended October
31, 1995 (Commission File No. 0-21964).
4.1 Specimen certificate for the Common Stock, par value
$.01 per share, of the Company is incorporated herein
by reference to Exhibit 4.1 of the Company's Annual
Report on Form 10-K for the fiscal year ended October
31, 1995 (Commission File No. 0-21964).
4.2 Stockholders Agreement, dated June 22, 1993, by and
among the Company, MTD Products Inc. and the
stockholders named therein is incorporated herein by
reference to Exhibit 4.3 of the Company's Annual
Report on Form 10-K for the fiscal year ended October
31, 1995 (Commission File No. 0-21964).
4.3 Registration Rights Agreement, dated June 22, 1993,
by and among the Company, MTD Products Inc. and the
stockholders named therein is incorporated herein by
reference to Exhibit 4.3 of the Company's Annual
Report on Form 10-K for the fiscal year ended October
31, 1995 (Commission File No. 0-21964).
4.4 First Amendment to Stockholders Agreement, dated
March 11, 1994, by and among the Company, MTD
Products Inc. and the stockholders named therein is
incorporated herein by reference to Exhibit 4.4 of
the Company's Annual Report on Form 10-K for the
fiscal year ended October 31, 1995 (Commission File
No. 0-21964).
52
<PAGE> 53
10.1 Loan Agreement, dated February 1, 1995, by and
between Medina County, Ohio and Valley City Steel
Company is incorporated herein by reference to
Exhibit 10.4 of the Company's Quarterly Report on
Form 10-Q for the fiscal quarter ended April 30, 1996
(Commission File No. 0-21964).
10.2 Operating Agreement for Shiloh of Michigan, L.L.C.,
dated January 2, 1996, by and among Shiloh of
Michigan, L.L.C., Rouge Steel Company and the Company
is incorporated herein by reference to Exhibit 10.5
of the Company's Quarterly Report on Form 10-Q for
the fiscal quarter ended April 30, 1996 (Commission
File No. 0-21964).
10.3 Master Unsecured Demand Promissory Note of Shiloh
Corporation to The Richland Trust Company of
Mansfield, dated April 2, 1991, is incorporated
herein by reference to Exhibit 10.7 of the Company's
Annual Report of Form 10-K for the fiscal year ended
October 31, 1995 (Commission File No. 0.21964).
10.4 1993 Key Employee Stock Incentive Plan is
incorporated herein by reference to Exhibit A the
Company's Proxy Statement on Schedule 14A for the
fiscal year ended October 31, 1997 (Commission File
No. 0-21964).
10.5 Executive Incentive Bonus Plan is incorporated herein
by reference to Exhibit 10.9 of the Company's Annual
Report on Form 10-K for the fiscal year ended October
31, 1995 (Commission File No. 0-21964).
10.6 Indemnification Agreement, dated July 2, 1993, by and
between the Company and Robert L. Grissinger (with an
attached schedule identifying the directors and
officers of the Company that have entered into an
identical agreement) is incorporated herein by
reference to Exhibit 10.10 of the Company's Annual
Report on From 10-K for the fiscal year ended
December 31, 1995 (Commission File No. 0-21964).
10.7 Option Agreement, dated May 28, 1993, by and between
the Company and Robert L. Grissinger (with an
attached schedule identifying the other optionees
that have entered into option agreements with the
Company) is incorporated herein by reference to
Exhibit 10.15 of the Company's Annual Report on From
10-K for the fiscal year ended December 31, 1995
(Commission File No. 0-21964).
53
<PAGE> 54
10.8 Master Unsecured Demand Promissory Note of Shiloh
Corporation to The Richland Trust Company of
Mansfield, dated December 6, 1996 is incorporated
herein by reference to Exhibit 10.1 of the Company's
Quarterly Report on Form 10-Q/A for the fiscal
quarter ended January 1, 1997 (Commission File No.
0-21964).
10.9 Supplemental Retirement Trust Agreement, dated June
1, 1997, by and among the Company, First Union
National Bank of North Carolina and Robert L.
Grissinger is incorporated herein by reference to
Exhibit 10.15 to the Company's Annual Report or Form
10-K for the fiscal year ended October 31, 1997
(Commission File No. 0-21964).
10.10 Credit Agreement, dated September 13, 1999, by and
among the Company, the banks listed on Annex A
thereto and KeyBank National Association, as
Administrative Agent.
10.11 Transitional Services Agreement, dated October 31,
1999, by and among the Company, Shiloh Automotive,
Inc. and MTD Products Inc.
21.1 Subsidiaries of the Company.
23.1 Consent of PricewaterhouseCoopers LLP.
24.1 Powers of Attorney.
27.1 Financial Data Schedule.
54
<PAGE> 1
Exhibit 2.2
FIRST AMENDMENT TO
ASSET PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT (this "First
Amendment"), dated as of August 31, 1999, is made by and among SHILOH
INDUSTRIES, INC., a Delaware corporation (the "Parent"), SHILOH AUTOMOTIVE,
INC., an Ohio corporation ("Buyer"), and MTD PRODUCTS INC, an Ohio corporation
("Seller").
RECITALS
--------
A. The, Parent, Buyer and Seller entered into that certain
Asset Purchase Agreement dated as of June 21, 1999 (the "Purchase Agreement");
and
B. Pursuant to Section 10.11 of the Purchase Agreement, the
Parent, Buyer Seller have agreed to amend the Purchase Agreement as set forth
herein.
NOW, THEREFORE, in consideration of the promises and the
mutual covenants and agreements hereinafter set forth, the parties hereto,
intending to be legally bound hereby, covenant and agree as follows:
ARTICLE I
DEFINITIONS
-----------
1.1. CERTAIN DEFINITIONS. Unless otherwise defined herein, all
capitalized terms used herein have the meanings given to them in the Purchase
Agreement.
ARTICLE II
AMENDMENT TO THE PURCHASE AGREEMENT
-----------------------------------
2.1. SECTION 7.1(b). Section 7.1(b) is hereby amended and
superseded in all respects by the provisions of this First Amendment. As amended
and restated, Section 7.1(b) reads in its entirety:
"(b) by either Seller or the Buyer by written notice to the
other party if the transactions contemplated hereby shall not have been
consummated pursuant hereto by 5:00 p.m. Cleveland, Ohio time on
November 15, 1999, unless such date shall be extended by the mutual
written consent of Seller and the Buyer;"
<PAGE> 2
ARTICLE III
MISCELLANEOUS
-------------
3.1 EFFECT OF FIRST AMENDMENT. Except as specifically provided
herein, this First Amendment does not in any way waive, amend, modify, affect or
impair the terms and conditions of the Purchase Agreement, and all terms and
conditions of the Purchase Agreement are to remain in full force and effect
unless otherwise specifically amended, waived or changed pursuant to this First
Amendment.
This First Amendment constitutes the entire agreement among
the parties pertaining to the subject matter hereof and supersedes all prior and
contemporaneous agreements, understandings, representations, or other
arrangements, whether express or implied, written or oral, of the parties in
connection therewith except to the extent expressly incorporated or specifically
referred to herein.
3.2 COUNTERPARTS. This First Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed an original, but
all such counterparts together shall constitute but one and the same instrument.
3.3 GOVERNING LAW. THIS FIRST AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF OHIO, WITHOUT GIVING
EFFECT TO PRINCIPLES OF CONFLICTS OF LAW.
2
<PAGE> 3
IN WITNESS WHEREOF, each of the parties hereto has caused this
First Amendment to be duly executed and delivered as of the date first above
written.
SHILOH INDUSTRIES, INC.
By: /s/ John F. Falcon
--------------------
Name:
Title:
SHILOH AUTOMOTIVE, INC.
By: /s/ John F. Falcon
--------------------
Name:
Title:
MTD PRODUCTS INC
By: /s/ Ronald C. Hauser
--------------------
Name:
Title:
3
<PAGE> 1
Exhibit 10.10
CREDIT AGREEMENT
----------------
THIS CREDIT AGREEMENT is made as of the 13th day of September, 1999 by
and among SHILOH INDUSTRIES, INC., a Delaware corporation (the "Borrower"); the
financial institutions named in Annex A attached hereto and made a part hereof
and their successors and assigns (hereinafter sometimes collectively called the
"Banks" and each individually a "Bank"); KEYBANK NATIONAL ASSOCIATION, a
national banking association, Cleveland, Ohio, as Administrative Agent for the
Banks under this Agreement (hereinafter sometimes called the "Agent") and Bank
One, Michigan, a bank chartered under the laws of the State of Michigan, and
National City Bank, a national banking association, as Co-Documentation Agents.
Recitals:
---------
The Borrower and certain of its affiliates are indebted to certain
banks or lending institutions under and pursuant to the Existing Credit
Agreement (defined below).
The Borrower and a Subsidiary Guarantor have agreed to purchase
substantially all of the operating assets of the "Automotive Group" of MTD
PRODUCTS INC ("MTD") pursuant to an agreement between the Borrower and MTD dated
June 21, 1999 (the "Purchase Agreement").
The Borrower has requested the Banks to extend credit to the Borrower
(for itself and for the benefit of the Subsidiary Guarantors) in order to enable
the Borrower to borrow on a revolving credit basis and to have letters of credit
issued at its request, on and after the date hereof and at any time and from
time to time during the Commitment Period (defined below), in an aggregate
principal amount not in excess of $210,000,000 at any time outstanding. The
proceeds of such loans and credits are to be used (a) to repay sums owing under
and pursuant to the Existing Credit Agreement, (b) to acquire the assets of the
MTD Automotive Group, (c) for the general corporate working capital purposes of
the Borrower and its Subsidiaries and (d) for other general corporate purposes,
including, without limitation, but subject to the terms and conditions
hereinafter set forth, the acquisition of other businesses. The Banks are
willing to extend such credit to the Borrower on the terms and subject to the
conditions herein set forth.
Agreements:
-----------
NOW, THEREFORE, in consideration of the foregoing Recitals and the
mutual agreements hereinafter set forth, the Borrower, the Banks and the Agent
hereby agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1 DEFINITIONS. As used in this Agreement, the following
capitalized terms shall have the following meanings:
"ACCRUAL PERIOD" shall mean (i) the period commencing with the first
day of the Commitment Period and ending on the close of business October 31,
1999, (ii) the period commencing with November 1, 1999 and ending on the close
of business January 31, 2000 and (iii) thereafter, each successive three (3)
calendar month period during the Commitment Period commencing with each, as the
case may be, Fee Adjustment Date or Interest Adjustment Date during the
Commitment Period, commencing with the Fee Adjustment Date and Interest
Adjustment Date which are February 1, 2000.
<PAGE> 2
"ACQUIRED BUSINESS" shall mean a Subsidiary or a substantial portion of
the assets of a business enterprise acquired by an Obligor pursuant and subject
to the requirements and conditions of Section 8.9(b), including, without
limitation, the acquisition of the Automotive Group of MTD.
"ACQUIRED BUSINESS EBITDA" shall mean, as to any Acquired Business for
any fiscal period, the sum of:
(i) (a) the earnings (or losses) experienced by such Acquired Business
for such period, before provision for any income taxes, (b) PLUS the
amount of its non-recurring non-cash losses, and (c) MINUS the amount
of its non-recurring non-cash gains,
(ii) the interest expense of such Acquired Business for such period,
(iii) the depreciation and amortization of such Acquired Business for
such period, and
(iv) the effect of pro forma normalized adjustments, if any, used by
the Borrower (or its Subsidiary) in its analysis and evaluation of the
Acquired Business which are approved in writing by the Majority Banks
to be included in Acquired Business EBITDA,
all as determined by reference to the Acquisition Financials of such Acquired
Business.
"ACQUISITION FINANCIALS" shall have the meaning assigned to such term
in Section 8.9(b).
"ADJUSTED LIBOR" shall mean a rate per annum equal to the quotient
obtained (rounded upwards, if necessary, to the nearest 1/100th of 1%) by
DIVIDING (i) the applicable LIBOR rate by (ii) 1.00 MINUS the Reserve
Percentage, and which Adjusted LIBOR shall be automatically adjusted on and as
of the effective date of any change in the Reserve Percentage.
"ADMINISTRATIVE QUESTIONNAIRE" shall mean an Administrative
Questionnaire in the form of Schedule III to the Assignment Agreement attached
as Exhibit J hereto.
"ADVANTAGE" shall mean any payment (whether made voluntarily or
involuntarily, by offset of any deposit or other indebtedness or otherwise)
received by any Bank in respect of the Obligations owing by the Borrower to the
Banks if such payment results in that Bank having a lesser share (based upon its
Ratable Share) of such Obligations to the Banks than was the case immediately
before such payment.
"AFFECTED BANK" has the meaning assigned to such term in Section 3.8.
"AFFILIATE" shall mean, with respect to any Person, any other person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with such Person. A Person shall be deemed to control a second
Person if such first Person possesses, directly or indirectly, the power (i) to
vote 10% or more of the securities having ordinary voting power for the election
of directors or managers of such second Person or (ii) to direct or cause the
direction of the management and policies of such second Person, whether through
the ownership of voting securities, by contract or otherwise. Notwithstanding
the foregoing, (x) a director, officer or employee of a Person shall not, solely
by reason of such status, be considered an Affiliate of such Person; and (y)
none of the Banks, the Agent or the Letter of Credit Bank shall in any event be
considered to be an Affiliate of the Borrower or any of its Subsidiaries.
-2-
<PAGE> 3
"AGENT" has the meaning assigned to such term in the preamble of this
Agreement and any successor thereto pursuant to Section 12.
"AGREEMENT" shall mean this Credit Agreement, as the same may from time
to time be amended, supplemented, restated or otherwise modified.
"ANNIVERSARY DATE" shall mean the date which is the first anniversary
of the date on which the Initial Credit Event occurs and each successive
anniversary of such date thereafter.
"APPLICABLE FEE PERCENTAGE" shall mean, on each day of any Accrual
Period, with respect to any Commitment Fee,
(i) commencing on the first day of the Commitment Period and continuing
through and including January 31, 2000, Fifty (50) Basis Points per
annum, and
(ii) effective on the Fee Adjustment Date which is February 1, 2000 and
on each Fee Adjustment Date thereafter, the Basis Points per annum
indicated in the following table corresponding to the Borrower's Total
Leverage Ratio as of the Fee Determination Date for each such Fee
Adjustment Date:
Total Leverage Ratio: Commitment Fee (in Basis Points):
--------------------- ---------------------------------
Greater than 4.00 to 1 Fifty (50)
Equal to or less than 4.00 to 1
but greater than 3.50 to 1 Forty-five (45)
Equal to or less than 3.50 to 1
but greater than 2.75 to 1 Thirty-seven and one-half (37.5)
Equal to or less than 2.75 to 1
but greater than 2.25 to 1 Thirty (30)
Equal to or less than 2.25 to 1 Twenty-five (25);
provided, however, that, notwithstanding anything to the contrary in the
foregoing, effective immediately upon and during the continuance of an Event of
Default (and without waiving such Event of Default or limiting any right or
remedy of the Banks or the Agent in respect thereof), the Applicable Fee
Percentage shall be Fifty (50) Basis Points.
"APPLICABLE LIBOR PERCENTAGE" shall mean, on each day of any Interest
Period with respect to any LIBOR Loans comprising a Revolving Credit Borrowing,
(i) commencing on the first day of the Commitment Period and continuing
through and including January 31, 2000,
(a) if a Qualifying Sub-Debt Issuance has not occurred, Two Hundred
Seventy- five (275) Basis Points per annum, or
(b) if a Qualifying Sub-Debt Issuance has occurred, Two Hundred
Twenty-five (225) Basis Points per annum, and
-3-
<PAGE> 4
(ii) effective on the Interest Adjustment Date which is February 1,
2000 and on each Interest Adjustment Date thereafter, the Basis Points
per annum indicated in the applicable table below corresponding to the
Borrower's Total Leverage Ratio as of the Interest Determination Date
for each such Interest Adjustment Date:
If, as of such Interest Adjustment Date, a Qualifying Sub-Debt Issuance
has not occurred, the following table shall apply:
<TABLE>
<CAPTION>
Applicable LIBOR
Total Leverage Ratio: Percentage (in Basis Points):
--------------------- -----------------------------
<S> <C>
Greater than 4.00 to 1 Two Hundred Seventy-five (275)
Equal to or less than 4.00 to 1
but greater than 3.50 to 1 Two Hundred Thirty-seven and one-half (237.5)
Equal to or less than 3.50 to 1
but greater than 3.25 to 1 One Hundred Seventy-five (175)
Equal to or less than 3.25 to 1
but greater than 2.75 to 1 One Hundred Fifty (150)
Equal to or less than 2.75 to 1
but greater than 2.25 to 1 One Hundred Twenty-five (125)
Equal to or less than 2.25 to 1 One Hundred (100); and
</TABLE>
if, as of such Interest Adjustment Date, a Qualifying Sub-Debt Issuance
has occurred, the following table shall apply:
Applicable LIBOR
Total Leverage Ratio: Percentage (in Basis Points):
--------------------- -----------------------------
Greater than 4.25 to 1 Two Hundred Fifty (250)
Equal to or less than 4.25 to 1
but greater than 4.00 to 1 Two Hundred Twenty-five (225)
Equal to or less than 4.00 to 1
but greater than 3.50 to 1 Two Hundred (200)
Equal to or less than 3.50 to 1
but greater than 3.25 to 1 One Hundred Seventy-five (175)
Equal to or less than 3.25 to 1
but greater than 2.75 to 1 One Hundred Fifty (150)
Equal to or less than 2.75 to 1
but greater than 2.25 to 1 One Hundred Twenty-five (125)
Equal to or less than 2.25 to 1 One Hundred (100);
-4-
<PAGE> 5
provided, however, that, notwithstanding anything to the contrary in the
foregoing, effective immediately upon and during the continuance of an Event of
Default (and without waiving such Event of Default or limiting any right or
remedy of the Banks or the Agent in respect thereof), the Applicable LIBOR
Percentage shall be Two Hundred Seventy-five (275) Basis Points if a Qualifying
Sub-Debt Issuance has not occurred and Two Hundred Fifty (250) Basis Points if a
Qualifying Sub- Debt Issuance has occurred.
"APPLICABLE PRIME RATE PERCENTAGE" shall mean, on any day with respect
to any Prime Rate Loans comprising a Revolving Credit Borrowing,
(i) commencing on the first day of the Commitment Period and continuing
through and including January 31, 2000, One Hundred Fifty (150) Basis
Points per annum, and
(ii) effective on the Interest Adjustment Date which is February 1,
2000 and on each Interest Adjustment Date thereafter, the Basis Points
per annum indicated in the applicable table below corresponding to the
Borrower's Total Leverage Ratio as of the Interest Determination Date
for each such Interest Adjustment Date:
Applicable Prime Rate
Total Leverage Ratio: Percentage (in Basis Points):
--------------------- -----------------------------
Greater than 4.25 to 1 One Hundred Seventy-five (175)
Equal to or less than 4.25 to 1
but greater than 4.00 to 1 One Hundred Fifty (150)
Equal to or less than 4.00 to 1
but greater than 3.25 to 1 One Hundred Twenty-five (125)
Equal to or less than 3.25 to 1
but greater than 2.75 to 1 One Hundred (100)
Equal to or less than 2.75 to 1
but greater than 2.25 to 1 Seventy-five (75)
Equal to or less than 2.25 to 1 Fifty (50);
provided, however, that, notwithstanding anything to the contrary in the
foregoing, effective immediately upon and during the continuance of an Event of
Default (and without waiving such Event of Default or limiting any right or
remedy of the Banks or the Agent in respect thereof), the Applicable Prime Rate
Percentage shall be One Hundred Seventy-five (175) Basis Points.
"BANK" or "BANKS" has the meaning assigned to such term in the preamble
of this Agreement.
"BANK DEBT" shall mean, collectively, every Indebtedness and liability
now or hereafter owing by the Borrower or any Subsidiary Guarantor to the Banks
or any thereof, whether owing absolutely or contingently, whether created by
loan, overdraft, guaranty of payment or other contract or by quasi-contract,
tort, statute or other operation of Law, whether incurred directly to the Banks
or any thereof or acquired by any or all thereof by purchase, pledge or
otherwise, and whether participated to or from the Banks or any thereof in whole
or in part.
-5-
<PAGE> 6
"BANKING DAY" shall mean a day of the year on which banks are not
required or authorized to close in Cleveland, Ohio; provided, however, that,
when used in connection with a LIBOR Loan, "Banking Day" shall mean any such day
on which banks are open for dealings in or quoting deposit rates for dollar
deposits in the London interbank market.
"BASIS POINT" shall mean one one-hundredth of one percent (0.01%).
"BORROW" shall mean to obtain a Revolving Credit Borrowing.
"BORROWER" has the meaning assigned to such term in the preamble of
this Agreement.
"CAPITAL EXPENDITURES" shall mean any and all amounts invested,
expended or incurred (including Indebtedness under Capitalized Leases) by a
Person in respect of the purchase, acquisition, improvement, renovation or
expansion of any land and depreciable or amortizable property of such Person
(including, without limitation, expenditures required to be capitalized in
accordance with GAAP), each as determined in accordance with GAAP and in each
case taken at the amount thereof accounted for as Indebtedness in accordance
with GAAP.
"CAPITALIZED LEASES" shall mean, in respect of any Person, any lease of
property imposing obligations on such Person, as lessee of such property, which
are required in accordance with GAAP to be capitalized on a balance sheet of
such Person.
"CLOSING DATE" shall mean September 15, 1999 or such other date which
is acceptable to the Agent and the Banks.
"COLLATERAL" shall mean any and all property of any Obligor, whether
now existing or hereafter acquired or arising, of whatsoever nature, and
wherever situated which is encumbered by a Lien in favor of the Agent, for the
benefit of the Banks, pursuant to any of the Security Documents.
"COMMITMENT" shall mean, with respect to each Bank, the obligation
hereunder of such Bank to make Loans and to participate in the risks of all
Letters of Credit issued by the Letter of Credit Bank at the Borrower's request
and in the risks of all Swingline Loans advanced by the Agent at the Borrower's
request, up to the amount set forth opposite such Bank's name under the column
headed "Commitments" as set forth in Annex A hereof during the Commitment Period
as such Commitment may be reduced in accordance with a reduction in the Total
Commitment Amount pursuant to Section 3.2(a) hereof.
"COMMITMENT FEE" has the meaning assigned to such term in Section
3.4(a).
"COMMITMENT PERIOD" shall mean the period from (i) the date on which
the Initial Credit Event occurs to (ii) August 31, 2004, as the same may be
extended pursuant to Section 3.2(b) or reduced pursuant to Section 3.2(a).
"COMMITMENT SHORTFALL" has the meaning assigned to such term in Section
3.2(b).
"CONSOLIDATED" shall mean the Borrower and its Subsidiaries, taken as a
whole in accordance with GAAP.
-6-
<PAGE> 7
"CONSOLIDATED ASSETS" shall mean, as at the date of any determination,
the net book value of all assets of the Borrower and its Subsidiaries as of such
date classified as assets in accordance with GAAP and determined on a
Consolidated basis.
"CONSOLIDATED INTEREST COVERAGE RATIO" shall mean, as of the end of any
Fiscal Quarter, the ratio of (i) Trailing EBITDA as of such Fiscal Quarter end
to (ii) Trailing Consolidated Interest Expense as of such Fiscal Quarter end.
"CONSOLIDATED INTEREST EXPENSE" shall mean, for any period, Interest
Expense of the Borrower and its Subsidiaries on a Consolidated basis.
"CONSOLIDATED LIABILITIES" shall mean, as at any date of determination,
all liabilities of the Borrower and its Subsidiaries as of such date classified
as liabilities in accordance with GAAP and determined on a Consolidated basis.
"CONSOLIDATED NET PRE-TAX EARNINGS" shall mean, for any fiscal period,
(a) the earnings (or losses) experienced by the Borrower and its Subsidiaries
for such period, before provision for any income taxes, PLUS (b) the amount of
non-recurring non-cash losses, and MINUS (c) the amount of non-recurring
non-cash gains, as determined on a Consolidated basis and in accordance with
GAAP.
"CONSOLIDATED NET WORTH" shall mean, as at any date of determination,
the remainder of (i) all Consolidated Assets (after deducting all applicable
reserves and excluding any re-appraisal or write-up of assets after the date of
this Agreement) as of such date, MINUS (ii) all Consolidated Liabilities as of
such date.
"CONTROLLED GROUP" shall mean a controlled group of corporations as
defined in Section 1563 of the Internal Revenue Code of 1986, as may be amended
from time to time, of which the Borrower or any Subsidiary is a part.
"CREDIT EVENT" shall mean (a) the obligation of (i) each Bank to make a
Loan on the occasion of each Revolving Credit Borrowing, (ii) the Letter of
Credit Bank to issue any Letter of Credit, or (iii) any Bank to participate in
the risk of any Letter of Credit, (b) the making of a Loan by any Bank, (c) the
delivery by the Borrower of (i) a Notice of Borrowing requesting a Revolving
Credit Borrowing, a borrowing under the Swingline Facility or a Letter of Credit
or (ii) a Rate Conversion/Continuation Request requesting the conversion or
continuation of Revolving Credit Loans, (d) a Rate Conversion or Rate
Continuation, (e) the acceptance by the Borrower of proceeds of any Revolving
Credit Borrowing, or (f) an increase in the Total Commitment Amount pursuant to
Section 3.2(b).
"DEFAULT UNDER ERISA" shall mean (a) the occurrence or existence of a
material "accumulated funding deficiency" (as defined in ERISA) in respect of
any Plan within the scope of Section 302(a) of ERISA or (b) any failure by the
Borrower or any Subsidiary to make a full and timely payment of premiums
required by Section 4001 of ERISA in respect of any Plan, or (c) the occurrence
or existence of any material liability under Section 4062, 4063, 4064, 4069,
4201, 4217 or 4243 of ERISA in respect of any Plan, or (d) the occurrence or
existence of any material breach of any other Law or regulation in respect of
any such Plan, or (e) the institution or existence of any action for the
forcible termination of any such Plan which is within the scope of Section
4001(a)(3) or (15) or ERISA.
"DISTRIBUTION" shall mean any payment made, liability incurred and
other consideration (other than any stock dividend, or stock split or similar
distributions payable only in capital stock of an
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<PAGE> 8
Obligor) given (i) for the purchase, acquisition, redemption or retirement of
any capital stock of an Obligor or (ii) as a dividend, return of capital or
other distribution of any kind in respect of an Obligor's capital stock
outstanding at any time.
"DOMESTIC SUBSIDIARY" means any Subsidiary which is incorporated or
organized in the United States or any state or territory thereof.
"EBITDA" shall mean, for any period, the sum of the amounts of (i)
Consolidated Net Pre- Tax Earnings, (ii) Consolidated Interest Expense for such
period, (iii) depreciation for such period on a Consolidated basis, as
determined in accordance with GAAP, and (iv) amortization for such period on a
Consolidated basis, as determined in accordance with GAAP.
"ENVIRONMENTAL LAWS" shall mean any federal, state or local Law,
regulation, ordinance, or order pertaining to the protection of the environment
and the health and safety of the public, including (but not limited to) the
Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"),
42 USC section section 9601 ET SEQ.; the Resource Conservation and Recovery Act
("RCRA"), 42 USC section section 6901 ET SEQ., the Hazardous Materials
Transportation Act, 49 USC section section 1801 ET SEQ., the Federal Water
Pollution Control Act (33 USC section section 1251 ET SEQ.), the Toxic
Substances Control Act (15 USC section section 2601 ET SEQ.) and the
Occupational Safety and Health Act (29 USC section section 651 ET SEQ.), and all
similar state, regional or local Laws, treaties, regulations, statutes or
ordinances, common Law, civil Laws, or any case precedents, rulings,
requirements, directives or requests having the force of Law of any foreign or
domestic governmental authority, agency or tribunal, and all foreign equivalents
thereof, as the same have been or hereafter may be amended, and any and all
analogous future Laws, treaties, regulations, statutes or ordinances, common
Law, civil Laws, or any case precedents, rulings, requirements, directives or
requests having the force of Law of any foreign or domestic governmental
authority, agency or tribunal and the regulations promulgated pursuant thereto,
which governs: (i) the existence, cleanup and/or remedy of contamination on
property; (ii) the emission or discharge of Hazardous Materials into the
environment; (iii) the control of hazardous wastes; (iv) the use, generation,
transport, treatment, storage, disposal, removal or recovery of Hazardous
Materials; or (v) the maintenance and development of wetlands.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974
(Public Law 93 406), as amended, and in the event of any amendment affecting any
section thereof referred to in this Agreement, that reference shall be reference
to that section as amended, supplemented, replaced or otherwise modified.
"ERISA AFFILIATE" of any Person shall mean any other Person that for
purposes of Title IV of ERISA is a member of such Person's Controlled Group, or
under common control with such Person, within the meaning of Section 414 of the
Internal Revenue Code of 1986, as amended from time to time.
"ERISA REGULATOR" shall mean any governmental agency (such as the
Department of Labor, the Internal Revenue Service and the Pension Benefit
Guaranty Corporation) having any regulatory authority over any Plan.
"EUROCURRENCY LIABILITIES" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"EVENT OF DEFAULT" has the meaning assigned to such term in Article 10.
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<PAGE> 9
"EXCESS CASH FLOW" shall mean, for any period, EBITDA for such period,
MINUS (i) the aggregate amount of Distributions made by the Borrower during such
period, to the extent permitted hereunder, (ii) the federal, state and local
taxes on or measured by the income of the Borrower actually paid or payable
during such period on a Consolidated basis, (iii) the amount of Capital
Expenditures made by the Borrower and its Subsidiaries during such period on a
Consolidated basis, to the extent permitted hereunder, other than Capital
Expenditures made from the proceeds of Indebtedness (other than proceeds of
Revolving Credit Loans), (iv) Consolidated Interest Expense for such period, and
(v) the aggregate amount of principal Indebtedness payable by the Borrower and
its Subsidiaries on a Consolidated basis during the 12 month period immediately
following the end of such period.
"EXEMPTION CERTIFICATE" has the meaning assigned to such term in
Section 3.9(f).
"EXISTING CREDIT AGREEMENT" shall mean the Credit Agreement dated
January 22, 1998, as amended, among the Borrower and Shiloh of Michigan, LLC, as
borrowers, KeyBank National Association, as agent, and various lenders party
thereto.
"FED FUNDS RATE" shall mean, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published for such day (or,
if such day is not a Banking Day, for the next preceding Banking Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Banking Day, the average of the quotations for such day on such
transactions received by the Agent from three (3) federal funds brokers of
recognized standing selected by it.
"FEE ADJUSTMENT DATE" shall mean each February 1, May 1, August 1 and
November 1 during the Commitment Period, commencing with February 1, 2000.
"FEE DETERMINATION DATE" shall mean, as to each Fee Adjustment Date,
the last day of the Fiscal Quarter immediately preceding the Fiscal Quarter most
recently ended prior to such Fee Adjustment Date. By way of example, the Fee
Determination Date for the Fee Adjustment Date on February 1, 2000 shall be
October 31, 1999, which is the last day of the Fiscal Quarter immediately
preceding the Fiscal Quarter which ends on January 31, 2000, which is the most
recent Fiscal Quarter end prior to such Fee Adjustment Date.
"FISCAL QUARTER" shall mean any of the four consecutive three-month
fiscal accounting periods collectively forming a Fiscal Year of the Borrower
consistent with the Borrower's past practice.
"FISCAL YEAR" shall mean the Borrower's regular annual accounting
period which shall end October 31, 1999, in respect of the Borrower's current
annual accounting period, and which thereafter shall end on October 31 of each
succeeding calendar year.
"FISCAL YEAR INCREASE" shall mean, as to any Fiscal Year, the sum of
(i) the aggregate amount of all equity capital paid into the Borrower, on a
Consolidated basis, during the immediately preceding Fiscal Year, PLUS (ii) the
greater of (a) an amount equal to 50% of the Borrower's Consolidated net, after
tax earnings (determined in accordance with GAAP) for the immediately preceding
Fiscal Year or (b) zero dollars ($0).
"FORMER AGENT" has the meaning assigned to such term in Section 12.13.
"FORMER LC BANK" has the meaning assigned to such term in Section 5.3.
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<PAGE> 10
"GAAP" shall mean generally accepted accounting principles in the
United States of America as in effect from time to time; it being understood and
agreed that determinations in accordance with GAAP for purposes of Sections 8.16
through 8.20, inclusive, including defined terms as used therein, are subject
(to the extent provided therein) to Sections 1.1 and 1.3.
"GUARANTOR" shall mean one who pledges his, her or its credit or
property in any manner for the payment or other performance of the Indebtedness,
contract or other obligation of another and includes (without limitation) any
guarantor (whether of collection or payment), any obligor in respect of a
standby letter of credit or surety bond issued for the obligor's account, and
surety, any co-maker, any endorser, and anyone who agrees conditionally or
otherwise to make any loan, purchase or investment in order thereby to enable
another to prevent or correct a default of any kind.
"GUARANTY" shall mean the obligation of a Guarantor.
"GUARANTY OF PAYMENT" shall mean any Continuing Guaranty of Payment
substantially in the form of Exhibit F hereto, executed and delivered to the
Agent by a Subsidiary Guarantor, pursuant to Section 6.2 or 8.8.
"HAZARDOUS MATERIAL" shall mean and include (i) any asbestos or other
material composed of or containing asbestos which is, or may become, even if
properly managed, friable, (ii) petroleum and any petroleum product, including
crude oil or any fraction thereof, and natural gas or synthetic natural gas
liquids or mixtures thereof, (iii) any hazardous, toxic or dangerous waste,
substance or material defined as such in (or for purposes of) CERCLA or RCRA,
any so-called "Superfund" or "Superlien" law, or any other applicable
Environmental Laws, and (iv) any other substance whose generation, handling,
transportation, treatment or disposal is regulated pursuant to any Environmental
Laws.
"INCIPIENT DEFAULT" shall mean an event, condition or thing which
constitutes, or which with the lapse of any applicable grace period or the
giving of notice or both would constitute, any Event of Default and which has
not been appropriately waived by the Banks in writing or fully corrected prior
to becoming an actual Event of Default.
"INCREASE REQUEST" has the meaning assigned to such term in Section
3.2(b).
"INCREASED RATE" shall mean, at any time and from time to time, a rate
of interest per annum which (i) as to any Loan, is Two Hundred (200) Basis
Points in excess of the rate of interest otherwise accruing on such Loan at such
time, and (ii) as to other Obligations, Three Hundred Seventy-five (375) Basis
Points in excess of the Prime Rate.
"INDEBTEDNESS" means, with respect to any Person, without duplication,
(i) all indebtedness for money borrowed of such Person; (ii) all bonds, notes,
debentures and similar debt securities of such Person; (iii) the deferred
purchase price of capital assets or services which in accordance with GAAP would
be shown on the liability side of the balance sheet of such Person; (iv) the
face amount of all letters of credit issued for the account of such Person and,
without duplication, all drafts drawn thereunder; (v) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances; (vi)
all Indebtedness of a second Person secured by any Lien on any property owned by
such first Person, whether or not such Indebtedness has been assumed; (vii) all
Capitalized Lease obligations of such Person and all Indebtedness of such Person
secured by purchase money Liens; (viii) the present value, determined on the
basis of the implicit interest rate, of all basic rental obligations under all
"synthetic" leases (i.e. leases accounted for by the lessee as operating leases
under which the lessee is the "owner" of the leased property for Federal income
tax purposes); (ix)
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<PAGE> 11
all obligations of such Person to pay a specified purchase price for goods or
services whether or not delivered or accepted, i.e., take-or-pay and similar
obligations; (x) all net obligations of such Person under any so-called 'hedge',
'swap', 'collar', 'cap' or similar interest rate or currency fluctuation
protection agreements; (xi) the full outstanding balance of trade receivables,
notes or other instruments sold with full recourse (and the portion thereof
subject to potential recourse, if sold with limited recourse), other than in any
such case any thereof sold solely for purposes of collection of delinquent
accounts; (xii) the stated value, or liquidation value if higher, of all
redeemable stock (or other equity interest) of such Person; and (xiii) all
guaranty obligations of such Person; provided that (a) neither trade payables
nor other similar accrued expenses, in each case arising in the ordinary course
of business, unless evidenced by a note, shall constitute Indebtedness; and (b)
the Indebtedness of any Person shall in any event include (without duplication)
the Indebtedness of any other entity (including any general partnership in which
such Person is a general partner) to the extent such Person is liable thereon as
a result of such Person's ownership interest in or other relationship with such
entity, except to the extent the terms of such Indebtedness provide expressly
that such Person is not liable thereon.
"INITIAL CREDIT EVENT" shall mean the first Credit Event hereunder to
occur.
"INTEREST ADJUSTMENT DATE" shall mean each February 1, May 1, August 1
and November 1 during the Commitment Period, commencing with February 1, 2000.
"INTEREST DETERMINATION DATE" shall mean, as to each Interest
Adjustment Date, the last day of the Fiscal Quarter immediately preceding the
Fiscal Quarter most recently ended prior to such Interest Adjustment Date. By
way of example, the Interest Determination Date for the Interest Adjustment Date
on February 1, 2000 shall be October 31, 1999, which is the last day of the
Fiscal Quarter immediately preceding the Fiscal Quarter which ends on January
31, 2000, which is the most recent Fiscal Quarter end prior to such Interest
Adjustment Date.
"INTEREST EXPENSE" shall mean, for any fiscal period, all expense of
the Borrower or any of its Subsidiaries for such fiscal period classified as
interest expense for such period, including capitalized interest and interest
under "synthetic" leases, in accordance with GAAP.
"INTEREST PERIOD" shall mean, for each of the LIBOR Loans comprising a
Revolving Credit Borrowing, the period commencing on the date of such Loans or
the date of the Rate Conversion or Rate Continuation of any Loans into such
LIBOR Loans and ending on the numerically corresponding day of the period
selected by the Borrower pursuant to the provisions hereof and each subsequent
period commencing on the last day of the immediately preceding Interest Period
in respect of such Loans and ending on the last day of the period selected by
the Borrower pursuant to the provisions hereof. The duration of each such
Interest Period shall be one (1), two (2), three (3) or six (6) months, in each
case as the Borrower may select, upon delivery to the Agent of a Notice of
Borrowing therefor in accordance with Section 3.l(d) hereof; provided, however,
that:
(i) Interest Periods for Loans comprising part of the same
Revolving Credit Borrowing shall be of the same duration;
(ii) no Interest Period may end on a date later than the last day
of the Commitment Period;
(iii) if there is no such numerically corresponding day in the month
that is such, as the case may be, first, second, third or
sixth month after the commencement of an Interest Period, such
Interest Period shall end on the last day of such month;
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<PAGE> 12
(iv) whenever the last day of any Interest Period in respect of
LIBOR Loans would otherwise occur on a day other than a
Banking Day, the last day of such Interest Period shall be
extended to occur on the next succeeding Banking Day;
provided, however, that if such extension would cause the last
day of such Interest Period to occur in the next following
calendar month, the last day of such Interest Period shall
occur on the immediately preceding Banking Day; and
(v) the Borrower may not select any Interest Period ending after
the date of any reduction in the Total Commitment Amount
unless, after giving effect to such selection, the aggregate
unpaid principal amount of any then outstanding Prime Rate
Loans taken together with the principal amount of any then
outstanding LIBOR Loans having Interest Periods ending on or
prior to the date of such reduction shall be at least equal to
the principal amount of the Revolving Credit Loans due and
payable on or prior to such date.
"KEYBANK" shall mean KeyBank National Association, a national banking
association, its successors and assigns.
"LC EXPOSURE" shall mean, with respect to any Bank, at any time of
determination, such Bank's Ratable Portion of the sum of (a) the aggregate
entire amount of all such Letters of Credit outstanding at such time, and (b)
the aggregate amount that has been drawn under such Letters of Credit but for
which the Letter of Credit Bank or the Banks, as the case may be, have not at
such time been reimbursed by the Borrower.
"LC SUBLIMIT" shall mean the amount Fifteen Million Dollars
($15,000,000).
"LAST LIBOR" has the meaning assigned to such term in Section 3.3(d).
"LAW" shall mean any law, treaty, regulation, statute or ordinance,
common law, civil law, or any case precedent, ruling, requirement, directive or
request having the force of law of any foreign or domestic governmental
authority, agency or tribunal.
"LENDING OFFICE" shall mean, with respect to any Bank, the office of
such Bank specified as its "Lending Office" below its name on the signature
pages hereto, or such other office of such Bank as such Bank may from time to
time specify in writing to the Borrower and the Agent as the office at which
Loans are to be made and maintained.
"LETTER OF CREDIT" shall mean any standby letter of credit issued by
the Letter of Credit Bank on a risk-participated basis with the other Banks
pursuant to the provisions of this Agreement.
"LETTER OF CREDIT BANK" shall mean KeyBank and any successor thereto
pursuant to Section 5.3.
"LIBOR" shall mean, with respect to any LIBOR Loan for any Interest
Period, the per annum rate of interest, determined by the Agent in accordance
with its usual procedures (which determination shall be conclusive absent
manifest error) as of approximately 11:00 A.M. (London time) two (2) Business
Days prior to the beginning of such Interest Period pertaining to such LIBOR
Loan, appearing on page 3750 of the Telerate Service (or any successor to or
substitute page of such Service, or any successor to or substitute for such
Service providing rate quotations comparable to those currently provided on such
page of such Service, as determined by the Agent from time to time for purposes
of providing quotations of interest rates applicable to dollar deposits in the
London
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<PAGE> 13
interbank market) as the rate in the London interbank market for dollar deposits
in immediately available funds with a maturity comparable to such Interest
Period. In the event that such a rate quotation is not available for any reason,
then the rate shall be the rate, determined by the Agent as of approximately
11:00 A.M. (London time) two (2) Business Days prior to the beginning of such
Interest Period pertaining to such LIBOR Loan, to be the average (rounded
upwards, if necessary, to the nearest one sixteenth of one percent (1/16th of
1%)) of the per annum rates of interest at which dollar deposits in immediately
available funds approximately equal in principal amount to such LIBOR Loan and
for a maturity comparable to the Interest Period are offered to KeyBank by prime
banks in the London interbank market.
"LIBOR LOANS" shall mean those Loans described in Section 3.1 hereof on
which the Borrower shall pay interest at a rate based on LIBOR.
"LIBOR PREPAYMENT COMPENSATION RATE" has the meaning assigned to such
term in Section 3.3(d).
"LIEN" shall mean any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance on title
to real property.
"LOAN" shall mean (i) a Revolving Credit Loan made by a Bank to the
Borrower pursuant to Article 3 and refers to a Prime Rate Loan or a LIBOR Loan
or (ii) or a Swingline Loan made by the Agent to the Borrower under the
Swingline Facility.
"MAJORITY BANKS" shall mean, at any time of determination, one or more
Banks having Commitments in the aggregate of at least sixty-six and two-thirds
percent (66 2/3%) of the Total Commitment Amount or, in the event that the
Commitments of the Banks shall have been terminated, the Banks holding sixty-six
and two-thirds percent (66 2/3%) of the amount of the outstanding Revolving
Credit Loans.
"MATERIAL ADVERSE EFFECT" shall mean the occurrence or existence of (a)
a material adverse effect on the business, results of operations or financial
condition of an Obligor, or (b) a material adverse effect on the ability of an
Obligor to perform its Obligations under this Agreement or any of the Related
Writings, or (c) a material adverse effect on the legality, validity or
enforceability of an Obligor's Obligations under this Agreement or any of the
Related Writings.
"MINIMUM NET WORTH" shall mean, for any Fiscal Year, the minimum
Consolidated Net Worth required to be maintained by the Borrower as at the end
of each Fiscal Quarter during such Fiscal Year pursuant to the provisions of
Section 8.16.
"MTD" shall have the meaning assigned to such term in the recitals to
this Agreement, which shall not be deemed to be an Obligor hereunder.
"NOTE" or "NOTES" shall mean a note or notes executed and delivered
pursuant to Section 3.1(c) hereof.
"NOTICE OF BORROWING" shall have the meaning assigned to such term in
Section 3.1(d).
"NOTICE OF SWINGLINE REFUNDING" shall have the meaning assigned to such
term in Section 3.1(i) hereof.
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<PAGE> 14
"OBLIGATIONS" shall mean the obligations of the Borrower and the
Subsidiary Guarantors under this Agreement and the Related Writings, including,
without limitation, the outstanding principal and accrued interest in respect of
any Revolving Credit Loans and any Swingline Loans, the outstanding principal
and accrued interest in respect of Letters of Credit, all Commitment Fees, Risk
Participation Fees, fees owing to the Banks or the Agent, reimbursement
obligations under Letters of Credit, any indebtedness or obligations under any
so-called 'hedge', 'swap', 'collar', 'cap' or similar interest rate or currency
fluctuation protection agreements hereafter constituting one or more of the
Related Writings, and any expenses, taxes, compensation or other amounts owing
under this Agreement, the Notes, any Guaranty of Payment, any Reimbursement
Agreement, including, without limitation, pursuant to Sections 3.3, 3.4, 3.7,
3.8, 3.9 or 14.4 and any and all other amounts owed by the Borrower or any
Subsidiary Guarantor to the Agent or the Banks pursuant to this Agreement, the
Notes or any other Related Writing.
"OBLIGOR" shall mean any of the Borrower or any Subsidiary Guarantor,
collectively being the "Obligors".
"OBLIGOR PROPERTY" shall mean any real property and improvements owned,
leased, used, operated or occupied by any Obligor or any of their respective
corporate predecessors, including any soil, surface water or groundwater on or
under such real property and improvements.
"OTHER TAXES" has the meaning assigned to such term in Section 3.9.
"PATENT AGREEMENT" shall have the meaning assigned to such term in
Section 6.2(l).
"PAYMENT OFFICE" shall mean such office of the Agent as set forth below
the Agent's name on the signature pages hereof or such offices as may be from
time to time selected by the Agent and notified in writing by the Agent to the
Borrower and the Banks as the office to which payments are to be made by the
Borrower or the Banks, as the case may be.
"PERMITTED PURCHASE MONEY SECURITY INTEREST" shall mean any Lien which
is created or assumed in purchasing, constructing or improving any real or
personal property (other than inventory) in the ordinary course of business, or
to which any such property is subject when so purchased, including, without
limitation, Capitalized Leases, provided, that (i) such lien shall be confined
to the aforesaid property, (ii) the Indebtedness secured thereby does not exceed
the total cost of the purchase, construction or improvement, (iii) any
refinancing of such indebtedness does not increase the amount of indebtedness
owing as of the date of such refinancing.
"PERSON" shall mean an individual, partnership, limited liability
company, corporation (including a business trust), joint stock company, trust,
unincorporated association, joint venture or other entity, or a government or
any political subdivision or agency thereof.
"PLAN" shall mean any employee pension benefit plan subject to Title IV
of the Employee Retirement Income Security Act of 1974, as amended, established
or maintained by the Borrower, any Subsidiary, or any member of the Controlled
Group, or any such Plan to which the Borrower, any Subsidiary, or any member of
the Controlled Group is required to contribute on behalf of any of its employees
(other than a Multi-Employer Plan, as that term is defined in Section 414(f) of
the Internal Revenue Code as currently in effect).
"PLEDGE AGREEMENT" has the meaning assigned to such term in Section
8.28.
"PREPAYMENT LIBOR" has the meaning assigned to such term in Section
3.3(d).
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<PAGE> 15
"PRIME RATE" shall mean the higher of (i) the per annum rate equal to
the Fed Funds Rate plus one and one-half percent (1.5%) or (ii) that interest
rate established from time to time by the Agent as the Agent's so-called "prime"
rate (or equivalent rate otherwise named), whether or not such rate is publicly
announced; the Prime Rate may not necessarily be the lowest interest rate
charged by Agent for commercial or other extensions of credit.
"PRIME RATE LOANS" shall mean those loans described in Section 3.1(b)
hereof on which the Borrower shall pay interest at the rate based on the Prime
Rate.
"PURCHASE AGREEMENT" has the meaning assigned to such term in the
recitals to this Agreement.
"PURCHASE DATE" shall have the meaning assigned to such term in Section
3.1(i).
"QUALIFYING SUB-DEBT ISSUANCE" shall mean the sale and issuance by the
Borrower after the Closing Date of Subordinated Indebtedness in the aggregate
principal amount of at least $100,000,000 having terms which are set forth on
Schedule 1.1 hereto.
"QUOTED RATE" shall have the meaning assigned to such term in Section
3.1(i).
"RATABLE PORTION" or "Ratable Share" shall mean, in respect of any
Bank, the quotient (expressed as a percentage) obtained at any time by dividing
such Bank's Commitment at such time by the Total Commitment Amount.
"RATE CONTINUATION" shall mean a continuation of LIBOR Loans having a
particular Interest Period as LIBOR Loans having an Interest Period of the same
duration pursuant to Section 3.1(h).
"RATE CONVERSION" refers to a conversion pursuant to Section 3.1(h) of
Loans of one Type into Loans of another Type and, with respect to LIBOR Loans,
from one permissible Interest Period to another permissible Interest Period.
"RATE CONVERSION/CONTINUATION REQUEST" shall have the meaning assigned
to such term in Section 3.l(h).
"RECEIVABLE" shall mean a claim for moneys due or to become due,
whether classified as a contract right, account, chattel paper, instrument,
general intangible or otherwise.
"REDUCTION NOTICE" shall mean a notice for a request for the reduction
in the Total Commitment Amount pursuant to Section 3.2(a) in the form of Exhibit
E hereto.
"REGULATORY CHANGE" shall mean, as to any Bank, any change in United
States federal, state or foreign Laws or regulations or the adoption or making
of any interpretations, directives or requests of or under any United States
federal, state or foreign Laws or regulations (whether or not having the force
of Law) by any court or governmental authority charged with the interpretation
or administration thereof.
"REIMBURSEMENT AGREEMENT" shall mean any reimbursement agreement in
respect of any Letter of Credit.
"RELATED WRITING" shall mean any assignment, Security Agreement, Patent
Agreement, other Security Document, note (including the Notes), guaranty
(including the Guaranties of Payment),
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<PAGE> 16
subordination agreement (including, without limitation, subordination provisions
contained in documents evidencing or governing Subordinated Indebtedness),
Reimbursement Agreement, financial statement, certificate, audit report or other
writing furnished by the Borrower, the Subsidiary Guarantors or any of their
officers to the Banks pursuant to or otherwise in connection with this
Agreement.
"REPORTABLE EVENT" shall mean a reportable event as that term is
defined in Title IV of the Employee Retirement Income Security Act of 1974, as
amended, except actions of general applicability by the Secretary of Labor under
Section 110 of such Act.
"REQUEST AMOUNT" has the meaning assigned to such term in Section
3.2(b).
"RESERVE PERCENTAGE" shall mean for any day that percentage (expressed
as a decimal) which is in effect on such day, as prescribed by the Board of
Governors of the Federal Reserve System (or any successor) for determining the
maximum reserve requirement (including, without limitation, all basic,
supplemental, marginal and other reserves and taking into account any
transitional adjustments or other scheduled changes in reserve requirements) for
a member bank of the Federal Reserve System in Cleveland, Ohio, in respect of
"Eurocurrency Liabilities".
"RESTRICTED ACQUISITION" shall mean and include (i) any acquisition, on
a going concern basis (whether by purchase, lease or otherwise) of any real
property, personal property and/or business operated by any Person who is not a
Domestic Subsidiary of the Borrower, and (ii) any acquisition (by stock
purchase, merger or otherwise) of a majority of the outstanding equity or other
similar interests in any such Person, which, as to any transaction described in
either (i) or (ii), after giving effect thereto, would cause the Borrower or any
of its Subsidiaries to engage in any business, the general nature of which would
be substantially different from the general nature of the respective businesses
engaged in by the Borrower and its Subsidiaries on the date hereof; provided,
however, that the Borrower's (or a Subsidiary Guarantor's) acquisition of MTD's
Automotive Group pursuant to the Purchase Agreement shall not be deemed to be a
Restricted Acquisition.
"REVOLVING CREDIT BORROWING" shall mean a group of Revolving Credit
Loans of a single Type, made by the Banks on a single date and as to which, as
to LIBOR Loans, a single Interest Period is in effect (I.E. any group of
Revolving Credit Loans made by the Banks having a different Type, or, as to
LIBOR Loans, having a different Interest Period [regardless of whether such
Interest Period commences on the same date as another Interest Period], or made
on a different date shall be considered to comprise a different Revolving Credit
Borrowing).
"REVOLVING CREDIT FACILITY" shall mean the revolving credit established
by the Banks in favor of the Borrower hereby in the maximum principal amount of
the Total Commitment Amount.
"REVOLVING CREDIT LOAN" shall mean a Loan by a Bank to the Borrower
pursuant to Section 3.1(a), and refers to a Prime Rate Loan or a LIBOR Loan.
"REVOLVING CREDIT NOTE" shall mean a note executed and delivered
pursuant to Section 3.l(c) hereof.
"RISK PARTICIPATION EXPOSURE" shall mean, with respect to any Bank, at
any time of determination, such Bank's LC Exposure.
"RISK PARTICIPATION FEE" shall mean the fee payable to the Banks
pursuant to Section 3.4(c).
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"SEC" shall mean the Securities and Exchange Commission.
"SECURITY AGREEMENT" shall have the meaning assigned to such term in
Section 6.2(k).
"SECURITY DOCUMENTS" shall mean the Security Agreements, the Patent
Agreements, the Pledge Agreement, related financing statements and each other
document pursuant to which any Lien or security interest is granted by any
Obligor to the Agent as security for any of the Obligations or perfected.
"SENIOR FUNDED DEBT" shall mean, as at the date of any determination,
and on a Consolidated basis, an amount equal to (i) Total Funded Debt
outstanding on such date, minus (ii) the principal amount of any Subordinated
Indebtedness outstanding on such date.
"SENIOR LEVERAGE RATIO" shall mean, as of the end of any Fiscal
Quarter, the ratio of (i) Senior Funded Debt outstanding on such Fiscal Quarter
end to (ii) Trailing EBITDA as of such Fiscal Quarter end.
"SUBORDINATED INDEBTEDNESS" shall mean the Qualifying Sub-Debt Issuance
and any other Indebtedness which has been subordinated to the Obligations in
right and time of payment upon terms which are satisfactory to the Majority
Banks in their good faith and prudent reasonable judgment, which terms may, in
the Majority Banks' determination, include (without limitation) limitations or
restrictions on the right of the holder of such Indebtedness to receive payments
and exercise remedies.
"SUBSIDIARY" shall mean an existing or future corporation, limited
liability company or other entity more than fifty percent (50%) of the
outstanding capital stock, membership or other equity interests or voting power,
or both, of which is (or upon the exercise of all outstanding warrants, options
and other rights would be) owned at the time in question by an Obligor or by any
Subsidiary of an Obligor or by any combination of Obligors.
"SUBSIDIARY GUARANTOR" shall mean each Domestic Subsidiary of the
Borrower existing on or after the Closing Date which becomes a Guarantor of the
Obligations pursuant to Section 6.2 or Section 8.8, collectively being the
"Subsidiary Guarantors".
"SWINGLINE ADVANCE NOTICE" shall have the meaning assigned to such term
in Section 3.1(i).
"SWINGLINE FACILITY" shall mean a discretionary line of credit offered
to the Borrower by the Agent in an aggregate principal amount not to exceed
Fifteen Million Dollars ($15,000,000).
"SWINGLINE LOAN" has the meaning assigned to such term in Section
3.1(i).
"SWINGLINE NOTE" has the meaning assigned to such term in Section
3.1(c).
"SWINGLINE PARTICIPATION AMOUNT" shall have the meaning assigned to
such term in Section 3.1(i).
"TAXES" has the meaning assigned to such term in Section 3.9(a).
"TOTAL COMMITMENT AMOUNT" shall mean the amount Two Hundred Ten Million
Dollars ($210,000,000), as such amount may be reduced pursuant to Section
3.2(a), Section 8.9 or Article 11, as the case may be, or increased pursuant to
Section 3.2(b).
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<PAGE> 18
"TOTAL LEVERAGE RATIO" shall mean, as of the end of any Fiscal Quarter,
the ratio of (i) Total Funded Debt outstanding on such Fiscal Quarter end to
(ii) Trailing EBITDA as of such Fiscal Quarter end.
"TOTAL FUNDED DEBT" shall mean, as at the date of any determination,
and on a Consolidated basis, the principal amount of any and all outstanding
Indebtedness of the Borrower and its Subsidiaries at such date, including,
without limitation, the outstanding Obligations of the Borrower and the
Subsidiary Guarantors to the Banks under this Agreement at such date and any
other Bank Debt at such date.
"TRAILING EBITDA" shall mean, as of the end of any Fiscal Quarter,
EBITDA for such Fiscal Quarter, plus EBITDA for the three (3) immediately
preceding Fiscal Quarters; provided, however, that for the purposes only of
computing the Senior Leverage Ratio and the Total Leverage Ratio from and after
the consummation of an Obligor's acquisition of an Acquired Business:
(a) Trailing EBITDA computed as of the end of the Fiscal Quarter ending
immediately following the date of such consummation, and as of the end
of each of the next three (3) succeeding Fiscal Quarters, shall include
the Acquired Business EBITDA of such Acquired Business for the period
covered by such computation of Trailing EBITDA, as if such Acquired
Business had been, as the case may be, a Subsidiary of, or part of the
business assets of, the Borrower or a Subsidiary during such period,
and
(b) in addition to clause (a), above, if the Acquired Business is the
Automotive Group of MTD, so long as an Obligor's acquisition thereof
has occurred on or prior to the end of any of the following Fiscal
Quarters, in computing Trailing EBITDA as of such date:
(i) as of the end of the Fiscal Quarter ending October 31, 1999, the
amount otherwise obtained pursuant to this definition shall be
increased by $6,562,000,
(ii) as of the end of the Fiscal Quarter ending January 31, 2000, the
amount otherwise obtained pursuant to this definition shall be
increased by $4,921,500,
(iii) as of the end of the Fiscal Quarter ending April 30, 2000, the
amount otherwise obtained pursuant to this definition shall be
increased by $3,281,000, and
(iv) as of the end of the Fiscal Quarter ending July 31, 2000, the
amount otherwise obtained pursuant to this definition shall be
increased by $1,640,500.
"TRAILING CONSOLIDATED INTEREST EXPENSE" shall mean, as of the end of
any Fiscal Quarter, Consolidated Interest Expense for such Fiscal Quarter, plus
Consolidated Interest Expense for the three (3) immediately preceding Fiscal
Quarters.
"TYPE" shall mean, when used in respect of any Revolving Credit Loan,
LIBOR or Prime Rate as applicable to such Loan.
"UNUSED COMMITMENT" shall mean, as to each Bank, as of any date, an
amount equal to (i) such Bank's Commitment on such date, MINUS (ii) the
aggregate of (a) the aggregate unpaid principal amount of all Revolving Credit
Loans of such Bank on such date, and (b) such Bank's Risk Participation Exposure
on such date.
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The foregoing definitions shall be applicable to the singular and
plurals of the foregoing defined terms.
SECTION 1.2 COMPUTATION OF TIME PERIODS. In this Agreement in the
computation of periods of time from a specific date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
means "to but excluding".
SECTION 1.3 ACCOUNTING TERMS. Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be construed in
accordance with GAAP; provided, however, that, for purposes of determining
satisfaction of the financial tests set forth in the definitions of Applicable
LIBOR Percentage, Applicable Prime Rate Percentage, and Applicable Fee
Percentage, Consolidated Net Worth and Consolidated Net Pre-Tax Earnings and
compliance with the covenants set forth in Article 8, all terms of an accounting
or financial nature shall be construed in accordance with generally accepted
accounting principles as in effect on the date of this Agreement and in all
cases shall be applied on a basis consistent with those applied in the
preparation of the audited financial statements referred to in Section 9.5.
ARTICLE 2
AMOUNT AND NATURE OF CREDIT
SECTION 2.1 AMOUNT AND NATURE OF CREDIT. Subject to the terms and
conditions set forth in this Agreement, each of the Banks hereby establishes a
facility pursuant to which Revolving Credit Loans shall be available to the
Borrower on a revolving credit basis in an amount, in the aggregate as to all of
the Banks, not to exceed the Total Commitment Amount, of which (i) an amount not
to exceed the LC Sublimit shall be available for the issuance of Letters of
Credit and (ii) an amount not to exceed Fifteen Million Dollars ($15,000,000) in
the aggregate shall be available under the Swingline Facility.
SECTION 2.2 PURPOSE OF FACILITY. The Borrower shall use the proceeds of
Revolving Credit Loans hereunder (a) to repay sums owing to the "Banks" and the
"Agent" under and pursuant to the Existing Credit Agreement, including, without
limitation, obligations in respect of letters of credit outstanding thereunder,
(b) to acquire (or fund a Subsidiary Guarantor's acquisition of) the assets of
the Automotive Group of MTD pursuant to the Purchase Agreement, (c) for the
general corporate working capital purposes of the Borrower and its Subsidiaries
and (d) for other general corporate purposes, including, without limitation, but
subject to the terms and conditions hereinafter set forth, the acquisition of
other businesses. The Borrower shall use the Letters of Credit for the purposes
set forth in Article 5 and for general corporate purposes of the Borrower and
its Subsidiaries.
ARTICLE 3
LOANS
SECTION 3.1 REVOLVING CREDIT LOANS.
(a) REVOLVING CREDIT LOANS. Subject to the terms and provisions of this
Agreement, each Bank severally agrees to make Revolving Credit Loans to the
Borrower in respect of the Revolving Credit Facility from time to time during
the Commitment Period up to such Bank's respective Commitment; provided,
however, that in no event at any time shall the aggregate principal amount of
all Revolving Credit Loans then outstanding, plus the aggregate Risk
Participation Exposure then existing, PLUS the aggregate unpaid principal
balance of all Swingline Loans then outstanding, be in excess of the Total
Commitment Amount. Within the limits set forth herein, the Borrower may borrow,
prepay and reborrow Revolving Credit Loans.
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<PAGE> 20
(b) REVOLVING CREDIT BORROWINGS.
(i) Subject to the terms and conditions set forth in this Agreement,
the Borrower shall have the option to request Revolving Credit Borrowings in
respect of the Revolving Credit Facility, comprised of (A) Prime Rate Loans
maturing on or before the last day of the Commitment Period, in aggregate
amounts of not less than Five Hundred Thousand Dollars ($500,000) or additional
increments of One Hundred Thousand Dollars ($100,000) or any integral multiple
thereof or (B) LIBOR Loans maturing on the last day of the Interest Period
applicable thereto in aggregate amounts of not less than Three Million Dollars
($3,000,000), or additional increments of One Million Dollars ($1,000,000) or
any integral multiple thereof.
(ii) The Borrower may request more than one Revolving Credit Borrowing
on any Banking Day; provided, however, that if on the same Banking Day the
Borrower requests two or more Revolving Credit Borrowings which are comprised of
LIBOR Loans, each such Revolving Credit Borrowing of LIBOR Loans shall have an
Interest Period which is different in duration from the Interest Periods in
respect of the other such Revolving Credit Borrowings of LIBOR Loans.
(iii) The Borrower shall not request a Revolving Credit Borrowing
consisting of LIBOR Loans if, after giving effect to such request, there would
be outstanding more than fifteen (15) Revolving Credit Borrowings consisting of
LIBOR Loans.
(c) NOTES.
(i) The obligation of the Borrower to repay Revolving Credit Loans made
by each Bank in respect of the Revolving Credit Facility and to pay interest
thereon shall be evidenced by a Revolving Credit Note of the Borrower
substantially in the form of Exhibit A hereto, with appropriate insertions,
dated the date of this Agreement and payable to the order of such Bank on the
last day of the Commitment Period, in the principal amount of its Commitment.
(ii) (A) The obligation of the Borrower to repay the Swingline Loans
and to pay interest thereon shall be evidenced by a promissory note of
the Borrower substantially in the form of Exhibit B, with blanks
appropriately completed in conformity herewith (the "Swingline Note").
(B) The Swingline Note issued to the Agent shall be dated the
date of this Agreement and payable to the order of the Agent on the
last day of the Commitment Period, in the principal amount of the
Swingline Facility and shall be entitled to the benefits of this
Agreement, the Security Documents and the other Related Writings.
(iii) The principal amount of the Revolving Credit Loans made by each
Bank, and all prepayments thereof and the applicable dates with respect thereto
shall be recorded by such Bank from time to time on any ledger or other record
of such Bank or such Bank shall record such information by such other method as
such Bank may generally employ; provided, however, that failure to make any such
record shall in no way detract from the Borrower's obligations under any Note.
The aggregate unpaid amount of the Revolving Credit Loans shown on the records
of such Bank shall be rebuttably presumptive evidence of the principal amount
owing and unpaid on such Revolving Credit Note, as the case may be.
(d) NOTICE OF BORROWING. The obligation of each Bank to make Revolving
Credit Loans comprising a Revolving Credit Borrowing under the Revolving Credit
Facility is conditioned upon receipt by the Agent of a request by the Borrower
not later than 12:00 noon (Cleveland, Ohio time)
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(i) on the Banking Day which is the requested date of a proposed Revolving
Credit Borrowing comprised of Prime Rate Loans and (ii) on a day which is three
(3) Banking Days prior to the Banking Day which is the requested date of a
proposed Revolving Credit Borrowing comprised of LIBOR Loans (except that the
Revolving Credit Borrowing requested on the Closing Date may be comprised of
LIBOR Loans so long as each of the Banks shall have agreed to make LIBOR Loans
on the Closing Date without the notice required by this Section 3.l(d) and the
Borrower shall have agreed in a writing satisfactory in form and substance to
the Agent to indemnify the Banks in respect of any loss suffered by reason of
such accommodation). Each such request (a "Notice of Borrowing") shall be
transmitted by the Borrower to the Agent by telecopier or such other means as
the Agent agrees to in writing, substantially in the form of Exhibit C,
specifying therein the requested (A) date of the Revolving Credit Loans
comprising such Revolving Credit Borrowing, (B) Type of Revolving Credit Loans
comprising such Revolving Credit Borrowing, (C) aggregate amount of such
Revolving Credit Loans and (D) in the case of a proposed Revolving Credit
Borrowing comprised of LIBOR Loans, the initial Interest Period for such
Revolving Credit Loans. The Borrower may give a Notice of Borrowing
telephonically so long as written confirmation of such Revolving Credit
Borrowing by delivery of written Notice of Borrowing is received by the Agent by
1:00 p.m. (Cleveland, Ohio time) on the same day such telephonic Notice of
Borrowing is given. The Agent may rely on such telephonic Notice of Borrowing to
the same extent that the Agent may rely on a written Notice of Borrowing. Each
Notice of Borrowing and telephonic Notice of Borrowing shall be irrevocable and
binding on the Borrower and subject to the indemnification provisions of this
Article 3. The Borrower shall bear all risks related to the giving of a Notice
of Borrowing telephonically or by such other method of transmission as the
Borrower shall elect. The Agent shall give to each Bank reasonably prompt notice
by telecopier on the day received of each such Notice of Borrowing.
(e) BANKS TO FUND AGENT. Each Bank shall, before the later of one (1)
hour after the Agent issues its notice to such Bank of a Notice of Borrowing or
2:00 P.M. (Cleveland, Ohio time) on the date of each Revolving Credit Borrowing,
make available to the Agent, in immediately available funds at the account of
the Agent maintained at the Payment Office as specified by the Agent to the
Banks prior to such date, such Bank's Ratable Portion of the Revolving Credit
Loans comprising such Revolving Credit Borrowing. On the date requested by the
Borrower for a Revolving Credit Borrowing, after the Agent's receipt of the
funds representing a Bank's Ratable Portion of such Revolving Credit Borrowing
and upon the Borrower's fulfillment of the applicable conditions set forth in
this Article 3, the Agent will make the funds of such Bank available to the
Borrower at the aforesaid applicable Payment Office.
(f) AVAILABILITY OF FUNDS. Unless the Agent shall have received notice
from a Bank prior to the date (except in the case of Prime Rate Loans, in which
case prior to the time) of any Revolving Credit Borrowing that such Bank will
not make available to the Agent such Bank's Ratable Portion of the Revolving
Credit Borrowing, the Agent may assume that such Bank has made its Ratable
Portion of the Revolving Credit Borrowing available to the Agent on the date of
the Revolving Credit Borrowing in accordance with Section 3.1(e). In reliance
upon such assumption, the Agent may, but shall not be obligated to, make
available to the Borrower on such date a corresponding portion of the Revolving
Credit Borrowing. If and to the extent that such Bank shall not have made
available to the Agent its Ratable Portion of the Loans to be made as to the
Revolving Credit Borrowing, such Bank and the Borrower severally agree to repay
to the Agent, immediately upon demand, the corresponding portion of the
Revolving Credit Borrowing, together with interest thereon, for each day from
the date such amount is made available to the Borrower until the date such
amount is repaid to the Agent (i) in the case of the Borrower, at the interest
rate applicable at the time to the Revolving Credit Loans comprising such
Revolving Credit Borrowing and (ii) in the case of such Bank, at the Fed Funds
Rate. If such Bank shall repay to the Agent such corresponding
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<PAGE> 22
portion of the Revolving Credit Borrowing, the amount so repaid shall constitute
such Bank's Ratable Portion as part of such Revolving Credit Borrowing.
(g) FAILURE OF BANK TO LOAN. The failure of any Bank to make the Loan
to be made by it as its Ratable Portion of any Revolving Credit Borrowing shall
not relieve any other Bank of its obligation hereunder to make its Loan on the
date of such Revolving Credit Borrowing. No Bank shall be responsible for the
failure of any other Bank to make the Loan to be made by such other Bank on the
date of any Revolving Credit Borrowing.
(h) RATE CONVERSION AND CONTINUATION. The Borrower shall have the right
to cause a Rate Conversion or Rate Continuation in respect of Revolving Credit
Loans then outstanding, upon request delivered by the Borrower to the Agent not
later than 12:00 noon (Cleveland, Ohio time) (i) on the day which is the Banking
Day that the Borrower desires to convert any LIBOR Loans comprising a Revolving
Credit Borrowing into Prime Rate Loans so as to comprise a Revolving Credit
Borrowing, (ii) on the day that is three (3) Banking Days prior to the Banking
Day upon which the Borrower desires to convert any Prime Rate Loans comprising a
Revolving Credit Borrowing into LIBOR Loans for a given Interest Period so as to
comprise a Revolving Credit Borrowing, (iii) on the day which is three (3)
Banking Days prior to the Banking Day upon which the Borrower desires to
continue any LIBOR Loans comprising a given Revolving Credit Borrowing as LIBOR
Loans for an additional Interest Period of the same duration so as to comprise a
Revolving Credit Borrowing, (iv) on the day which is three (3) Banking Days
prior to the Banking Day upon which the Borrower desires to convert any LIBOR
Loans having a particular Interest Period comprising a Revolving Credit
Borrowing into LIBOR Loans having a different permissible Interest Period so as
to comprise a Revolving Credit Borrowing, provided, however, that each such Rate
Conversion or Rate Continuation shall be subject to the following:
(A) each Rate Conversion or Rate Continuation shall be funded
among the Banks based upon each Bank's Ratable Portion of such
converted or continued Revolving Credit Loans comprising a Revolving
Credit Borrowing;
(B) if less than all the outstanding principal amount of the
Revolving Credit Loans comprising a Revolving Credit Borrowing is
converted or continued, the aggregate principal amount of such
Revolving Credit Loans converted or continued shall be (1) in the case
of LIBOR Loans, not less than Three Million Dollars ($3,000,000) or
additional increments of One Million Dollars ($1,000,000) in excess
thereof, and (2) in the case of Prime Rate Loans, not less than Five
Hundred Thousand Dollars ($500,000) or additional increments of One
Hundred Thousand Dollars ($100,000) in excess thereof;
(C) each Rate Conversion or Rate Continuation shall be
effected by each Bank by applying the proceeds of the Loan resulting
from such Rate Conversion or Rate Continuation to the Loan of such Bank
being converted or continued, as the case may be, and the accrued
interest on any such Loan (or portion thereof) being converted or
continued shall be paid to the Agent on behalf of each Bank by the
Borrower at the time of such Rate Conversion or Rate Continuation;
(D) LIBOR Loans may not be converted or continued at a time
other than the end of the Interest Period applicable thereto unless the
Borrower shall pay, upon demand, any amounts due to the Banks pursuant
to Section 3.3(d);
(E) Revolving Credit Loans comprising a Revolving Credit
Borrowing may not be converted into or continued as LIBOR Loans less
than one month prior to the last day of the
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<PAGE> 23
Commitment Period or for an Interest Period which would continue after
the last day of the Commitment Period;
(F) LIBOR Loans comprising a Revolving Credit Borrowing that
cannot be converted into or continued as LIBOR Loans by reason of
clause (E) shall be automatically converted at the end of the Interest
Period in effect for such LIBOR Loans into Prime Rate Loans comprising
a Revolving Credit Borrowing; and
(G) in connection with any Rate Conversion or Rate
Continuation, no Interest Period can be selected which ends after the
date of any reduction in the Total Commitment Amount unless, after
giving effect to such selection, the aggregate unpaid principal amount
of any then outstanding Prime Rate Loans taken together with the
principal amount of any then outstanding LIBOR Loans having Interest
Periods ending on or prior to the date of such reduction shall be at
least equal to the principal amount of the Revolving Credit Loans due
and payable on or prior to such reduction date.
Each such request for a conversion or continuation (a "Rate
Conversion/Continuation Request") in respect of Revolving Credit Loans
comprising a Revolving Credit Borrowing shall be transmitted by the Borrower to
the Agent, by telecopier, telex or cable (in the case of telex or cable,
confirmed in writing prior to the effective date of the Rate Conversion or Rate
Continuation requested), in substantially the form of Exhibit D hereto,
specifying (A) the identity and amount of the Revolving Credit Loans comprising
a Revolving Credit Borrowing that the Borrower requests be converted or
continued, (B) the Type of Revolving Credit Loans into which such Revolving
Credit Loans are to be converted or continued, (C) if such notice requests a
Rate Conversion, the date of the Rate Conversion (which shall be a Banking Day)
and (D) in the case of Revolving Credit Loans comprising a Revolving Credit
Borrowing being converted into or continued as LIBOR Loans, the Interest Period
for such LIBOR Loans. The Borrower may make Rate Conversion/Continuation
Requests telephonically so long as written confirmation of such Revolving Credit
Borrowing is received by the Agent by 1:00 p.m. (Cleveland, Ohio time) on the
same day of such telephonic Rate Conversion/Continuation Request. The Agent may
rely on such telephonic Rate Conversion/Continuation Request to the same extent
that the Agent may rely on a written Rate Conversion/Continuation Request. Each
Rate Conversion/Continuation Request, whether telephonic or written, shall be
irrevocable and binding on the Borrower and subject to the indemnification
provisions of this Article 3. The Borrower shall bear all risks related to its
giving any Rate Conversion/Continuation Request telephonically or by such other
method of transmission as the Borrower shall elect. The Agent shall promptly
deliver on the day received a copy of each such Rate Conversion/Continuation
Request to the Banks by telecopier.
(i) FUNDING OF ADVANCES UNDER SWINGLINE FACILITY. The Borrower at any
time may request of the Agent an advance of a Loan under the Swingline Facility
(any such Loan made by the Agent pursuant to this Section 3.1(i) being referred
to as a "Swingline Loan" and collectively as "Swingline Loans"), each of which
Swingline Loans shall be due and payable in full on the date specified in the
applicable Notice of Borrowing, which specified date shall not be later than the
seventh (7th) day following the date on which such Swingline Loan was advanced;
PROVIDED, HOWEVER, that the outstanding principal of Swingline Loans advanced by
the Agent shall not at any time exceed the lesser of $15,000,000 or the unused
portion of the Total Commitment Amount; and PROVIDED, FURTHER, that the Agent
shall not make an advance of a Swingline Loan if the Agent has received prior to
such requested Revolving Credit Borrowing (1) a certificate from the Borrower
pursuant to and in accordance with Section 8.2(a) that an Incipient Default or
Event of Default then exists or (2) a Notice of Borrowing from the Borrower
wherein the certification provided therein states that the conditions to the
requested Revolving Credit Borrowing have not been satisfied or (3) a written
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notice from any Bank that the conditions to such Revolving Credit Borrowing have
not been satisfied, which notice shall not have been rescinded.
(i) REQUEST BY THE BORROWER FOR A SWINGLINE LOAN.
(A) Whenever the Borrower desires to incur a
Swingline Loan, if the Agent has furnished the Borrower with a
"Quoted Rate" (as defined below) therefor, it shall give the
Agent, prior to 1:00 P.M. (Cleveland, Ohio time) on the
proposed date thereof (which shall be within such period as
the Agent shall have specified for such Quoted Rate), written
or telephonic notice (each, a "Swingline Advance Notice")
thereof (in the case of telephonic notice, promptly confirmed
in writing if so requested by the Agent). Each advance of a
Swingline Loan shall be in an original principal amount of not
less than Five Hundred Thousand Dollars ($500,000).
(B) Whenever the Borrower proposes to submit a Notice
of Borrowing with respect to a Swingline Loan it will, prior
to submitting such Notice of Borrowing, notify the Agent of
its intention and request the Agent to quote a fixed or
floating interest rate (the "Quoted Rate") to be applicable
thereto prior to the proposed maturity thereof.
(C) Without in any way limiting the obligation of the
Borrower to confirm in writing any telephonic notice permitted
to be given hereunder, the Agent may act prior to receipt of
written confirmation without liability upon the basis of such
telephonic notice believed by the Agent in good faith to be
from an authorized officer, or designee thereof, of the
Borrower entitled to give telephonic notices under this
Agreement on behalf of the Borrower. In each such case, the
Agent's record of the terms of such telephonic notice shall be
rebuttably presumptive evidence thereof.
(ii) DISBURSEMENT OF FUNDS BY THE AGENT; AGENT'S RECORDS. No
later than 2:00 P.M. (Cleveland, Ohio time) on the date specified in
each Swingline Advance Notice, the Agent promptly will make available
to the Borrower by depositing to its account the amount of the
borrowing under the Swingline Facility requested to be made on such
date. The principal amount of the Swingline Loans made by the Agent,
and all prepayments thereof and the applicable dates with respect
thereto shall be recorded by the Agent from time to time on any ledger
or other record of the Agent or the Agent shall record such information
by such other method as the Agent may generally employ; provided,
however, that failure to make any such record shall in no way detract
from the Borrower's obligations under the Swingline Note. The aggregate
unpaid amount of the Swingline Loans shown on the records of the Agent
shall be rebuttably presumptive evidence of the principal amount owing
and unpaid on the Swingline Note.
(iii) SWINGLINE LOANS AS LOANS. Each Swingline Loan for all
purposes hereof is a Loan hereunder and shall be subject to all terms
and conditions applicable to other Loans except that all payments
thereon shall be payable to the Agent solely for its own account (and
for the account of the other Banks as provided below).
(iv) REFUNDING OF, OR PARTICIPATION IN, SWINGLINE LOANS.
(A) If (1) any Swingline Loan is not repaid in full,
together with all accrued interest thereon, on or before the
maturity date thereof, or (2) any Event of Default exists, and
if the Agent has any Swingline Loans owing to it, the Agent in
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<PAGE> 25
either case may, in its sole and absolute discretion, direct
that the Swingline Loans owing to it be refunded by delivering
a notice (each a "Notice of Swingline Refunding") to such
effect to the Banks and, unless an Event of Default has
occurred and is continuing, to the Borrower. Each such Notice
of Swingline Refunding shall be deemed to constitute delivery
by the Borrower of a Notice of Borrowing requesting Revolving
Credit Loans consisting of Prime Rate Loans in the amount of
the Swingline Loans to which it relates. Each Bank hereby
unconditionally agrees (subject to the provisions of
paragraphs (b) and (d) below) to make a Revolving Credit Loan
to the Borrower in an amount equal to such Bank's Ratable
Portion of the aggregate amount of the Swingline Loans to
which such Notice of Swingline Refunding relates. Each such
Bank shall make the amount of such Revolving Credit Loan
available to the Agent in immediately available funds not
later than 2:00 P.M. (Cleveland, Ohio time), if such notice is
received by such Bank prior to 11:00 A.M. (Cleveland, Ohio
time), or not later than 2:00 P.M. (Cleveland, Ohio time) on
the next Business Day, if such notice is received by such Bank
after such time. The proceeds of such Revolving Credit Loans
shall be made immediately available to the Agent and applied
by it to repay the principal amount of the Swingline Loans to
which such Notice of Swingline Refunding related. The Borrower
irrevocably and unconditionally agrees that, notwithstanding
anything to the contrary contained in this Agreement,
Revolving Credit Loans made as herein provided in response to
a Notice of Swingline Refunding shall constitute Revolving
Credit Loans hereunder consisting of Prime Rate Loans.
(B) If, prior to the time a Revolving Credit Loan
would otherwise have been made as provided above as a
consequence of a Notice of Swingline Refunding, one or more of
the Banks shall determine that it is legally prohibited from
making a Revolving Credit Loan under such circumstances, each
Bank (other than the Agent) so prohibited shall, on the date
such Revolving Credit Loan would have been made by it (the
"Purchase Date"), purchase an undivided participating interest
in the outstanding Swingline Loans to which such Notice of
Swingline Refunding related, in an amount (the "Swingline
Participation Amount") equal to such Bank's Ratable Portion of
such Swingline Loans. On the Purchase Date, each such Bank or
each such Bank so prohibited, as the case may be, shall pay to
the Agent, in immediately available funds, such Bank's
Swingline Participation Amount, and promptly upon receipt
thereof the Agent shall, if requested by such other Bank,
deliver to such Bank a participation interest in such
Swingline Loan and its Swingline Participation Amount in
respect thereof. If any amount required to be paid by a Bank
to the Agent pursuant to the above provisions in respect of
any Swingline Participation Amount is not paid on the date
such payment is due, such Bank shall pay to the Agent on
demand interest on the amount not so paid at the Fed Funds
Rate from the due date until such amount is paid in full.
(C) Whenever, at any time after the Agent has
received from any other Bank such Bank's Swingline
Participation Amount, the Agent receives any payment from or
on behalf of the Borrower on account of the related Swingline
Loans, the Agent will promptly distribute to such Bank its
Ratable Share of such payment on account of its Swingline
Participation Amount (appropriately adjusted, in the case of
interest payment, to reflect the period of time during which
such Bank's participating interest was outstanding and
funded); PROVIDED, HOWEVER, that in the event such payment
received by the Agent is required to be returned, such Bank
will return to the Agent any portion thereof previously
distributed to it by the Agent.
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(D) Each Bank's obligation to make Revolving Credit
Loans and/or purchase participations in connection with a
Notice of Swingline Refunding (which shall in all events be
within such Bank's unutilized Commitment, taking into account
all outstanding participations in connection with Swingline
Loan refundings) shall be subject to the conditions that
(1) such Bank shall have received a Notice of Swingline
Refunding complying with the provisions hereof; and
(2) at the time the Swingline Loans which are the subject
of such Notice of Swingline Refunding were made, the
Agent had no actual written notice from another Bank
that an Event of Default had occurred and was
continuing;
but otherwise shall be absolute and unconditional, shall be solely for the
benefit of the Agent, and shall not be affected by any circumstance, including,
without limitation, (A) any set-off, counterclaim, recoupment, defense or other
right which such Bank may have against any other Bank or any other person, for
any reason whatsoever; (B) the occurrence or continuance of a Incipient Default
or Event of Default; (C) any event or circumstance involving a Material Adverse
Effect upon any Obligor; (D) any breach of this Agreement or any Related Writing
by any party thereto; or (E) any other circumstance, happening or event, whether
or not similar to any of the foregoing.
SECTION 3.2 OPTIONAL REDUCTIONS; TERMINATION OF COMMITMENTS; EXTENSION OF
COMMITMENT PERIOD.
(a) The Borrower may, at any time and without payment of premium or
penalty except as set forth in Section 3.3, terminate in whole or from time to
time in part reduce the Total Commitment Amount of the Banks by delivering to
the Agent, not later than 12:00 noon (Cleveland, Ohio time) three (3) Banking
Days immediately preceding the effective date of the reduction, a notice of such
reduction (a "Reduction Notice"), in the form of Exhibit E hereto, stating the
amount by which the Total Commitment Amount is to be reduced and the effective
date of such reduction. Each reduction shall be subject to the following: (i)
each such reduction shall be in an aggregate principal amount of not less than
Five Million Dollars ($5,000,000) or any integral multiple of $1,000,000 in
excess thereof (provided that if the Reduction Notice is delivered pursuant to
clause (iii) of Section 8.9(c), the reduction shall be in the amount specified
in such Reduction Notice) and (ii) each such reduction shall be in an amount
such that the Total Commitment Amount, as so reduced, is not less than an amount
equal to the aggregate of (A) the aggregate principal amount of the Revolving
Credit Loans then outstanding hereunder, PLUS (B) the aggregate Risk
Participation Exposure, PLUS (C) the aggregate principal amount of Swingline
Loans then outstanding hereunder. The Borrower shall not be permitted to reduce
the Total Commitment Amount unless, concurrently with any reduction, the
Borrower shall make a principal payment on each Bank's then outstanding
Revolving Credit Loans in an amount equal to the excess, if any, of such
Revolving Credit Loans, PLUS the aggregate Risk Participation Exposure, PLUS its
participation in such Swingline Loans, OVER the Commitment of such Bank as so
reduced. The Agent shall promptly notify each Bank of its proportionate amount
and the date of each such reduction. From and after each such reduction, the
Commitment Fees payable hereunder shall be calculated upon the Commitments of
the Banks as so reduced. Each reduction of the aggregate Commitments shall be
made among the Banks in accordance with their respective Ratable Portions and
shall be allocated ratably to the Total Commitment Amount. Any partial reduction
in the Total Commitment Amount shall be irrevocable and effective during the
remainder of the Commitment Period. If the Borrower terminates in whole the
Commitments of the Banks, on the effective date of such termination (the
Borrower having prepaid in full the unpaid principal balance, if any, of the
Notes outstanding, together with all interest (if any) and Commitment Fees
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accrued and unpaid and all other amounts due to the Agent or the Banks
hereunder, including, without limitation, the satisfaction of all Obligations in
respect of Letters of Credit), all of the Notes outstanding shall be delivered
to the Agent marked "Canceled" and redelivered to the Borrower.
(b) If the Borrower theretofore has reduced the Total Commitment Amount
pursuant to Section 3.2(a), above, other than a reduction thereunder pursuant to
Section 8.9(c), the Borrower may, at its option at any time, but only one (1)
time, request an increase in the Total Commitment Amount (but in no event an
increase which would cause the Total Commitment Amount to exceed $210,000,000)
pursuant to the following terms and conditions:
(i) The Borrower's request for such increase in the Total Commitment
Amount shall be delivered to the Agent in writing (an "Increase
Request") and shall state the amount by which the Total Commitment
Amount is requested to be increased (the "Request Amount"). The Request
Amount shall be in an amount of not less than Ten Million Dollars
($10,000,000) or any integral multiple of Five Million Dollars
($5,000,000) in excess thereof, but shall not be more than an amount
equal to $210,000,000, MINUS the Total Commitment Amount then in
effect. The Agent shall forward a copy of the Increase Request to each
of the Banks promptly following receipt; and each Bank may, in its sole
and absolute discretion, agree or not agree to increase its Commitment
by an amount equal to some or all of its Ratable Share of the Request
Amount. The Banks shall endeavor to respond in writing to the Increase
Request within thirty (30) days following the date on which the
Increase Request is delivered to the Agent; provided, however, that if
any Bank shall fail to deliver its response to the Agent within such 30
day period, such Bank shall be deemed to have rejected any increase
whatsoever in its then current Commitment.
(ii) If any Bank rejects (in whole or in part), or is deemed to have
rejected in whole, an increase in its Commitment equal to such Bank's
Ratable Share of the full Request Amount (the amount by which each such
Bank's Ratable Share of the full Request Amount exceeds the amount, if
any, by which such Bank agrees in writing to increase its Commitment
pursuant to this Section 3.2(b) being the "Commitment Shortfall" of
such Bank), the Borrower may, at its option, induce another bank or
banks to become a "Bank" hereunder having, as its or their aggregate
Commitment(s), all or a portion of the aggregate of the Commitment
Shortfalls of all of the Banks, so long as (A) the Agent consents to
such other bank(s), which consent shall not be unreasonably withheld;
(B) the Commitment of each such other bank(s) would not be less than
$5,000,000; and (C) the other bank(s) shall agree in writing to become
a "Bank" party to this Agreement.
(iii) Upon completion of the foregoing procedures, the Agent shall
promptly notify each Bank of its Commitment, after giving effect to the
increase, if any, provided for above; and, subject to Article 7, such
increase shall be effective at such time as the Agent has confirmed to
the Borrower and the Banks in writing that the Borrower and the
Subsidiary Guarantors have executed and delivered to the Agent and the
Banks (and if appropriate, cause to be filed) such amendments,
replacements, confirmations and additions to the Notes, the Security
Documents and the other Related Writings as the Agent or the Banks may
request.
(iv) No fee or other charge shall be payable by the Borrower to the
Banks for an increase pursuant to this Section 3.2(b), other than (A)
reimbursement of costs and expenses of the Banks and the Agent in
connection with such increase pursuant to Section 14.4 and (B) sums, if
any, paid by the Borrower to any other bank to induce it to become a
"Bank" hereunder pursuant to paragraph (ii), above.
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<PAGE> 28
(c) The Borrower may, during the sixty (60) day period which precedes
each anniversary of the Closing Date (other than any such anniversary which is
less than twelve (12) months prior to the last day of the then current
Commitment Period, request in writing that the Commitment Period be extended one
(1) year to the anniversary date next following the last day of the Commitment
Period then in effect, which request shall be addressed to the Agent on behalf
of the Banks. The Agent shall promptly deliver a copy of each such request to
each of the Banks. The Banks agree to give consideration to each such request
and to respond in writing to the Borrower affirmatively or negatively as to such
request no later than sixty (60) days after such request is received by the
Agent. No Bank shall be obligated to grant the Borrower any such extension, and
unanimous written consent of all the Banks shall be required to extend the
Commitment Period. In the event of the failure of any of the Banks to so respond
affirmatively or negatively in writing within such sixty (60) day period, such
request for extension shall be deemed to have been denied. If any such extension
is granted by the Banks, the Obligors shall execute and deliver (and if
requested by the Majority Banks or the Agent, cause to be filed for record) such
modifications and supplements to the Related Writings and such additional
Related Writings as the Majority Banks or the Agent may request.
SECTION 3.3 REPAYMENTS AND PREPAYMENTS; PREPAYMENT COMPENSATION.
(a) REPAYMENT. The Borrower shall repay to the Agent for the account of
the Banks the outstanding principal amount of the Revolving Credit Loans under
the Revolving Credit Facility and the accrued and unpaid interest, Commitment
Fees and any other amounts owing to the Banks, or any thereof, under this
Agreement on the last day of the Commitment Period or upon acceleration pursuant
to Section 11.1 or 11.2.
(b) PERMITTED PREPAYMENTS. Except as set forth in Section 3.3(d), the
Borrower may prepay, without penalty or premium, not later than 12:00 noon
(Cleveland, Ohio time): (i) in the case of any LIBOR Loan, at least three (3)
Banking Days' notice to the Agent prior to the date fixed for such prepayment;
(ii) in the case of any Prime Rate Loan, upon notice to the Agent not later than
12:00 noon (Cleveland, Ohio time) on the date fixed for such prepayment; and
(iii) in the case of any Swingline Loan, upon notice to the Agent not later than
12:00 noon (Cleveland, Ohio time) on the date fixed for such prepayment, in each
case stating the proposed date and aggregate principal amount of the prepayment,
and, upon such notice, shall prepay the outstanding aggregate principal amount
of the Revolving Credit Loans comprising part of the same Revolving Credit
Borrowing in whole or ratably in part, together with accrued interest to the
date of such prepayment on the principal amount prepaid; provided, however, that
(x) each partial prepayment of LIBOR Loans shall be in an aggregate principal
amount of Three Million Dollars ($3,000,000) or additional increments of One
Million Dollars ($1,000,000) in excess thereof, (y) each partial prepayment of
Prime Rate Loans shall be in an aggregate principal amount of Five Hundred
Thousand Dollars ($500,000) or additional increments of One Hundred Thousand
Dollars ($100,000) in excess thereof, and (z) each partial prepayment of
Swingline Loans shall be in an aggregate principal amount of at least Five
Hundred Thousand Dollars ($500,000). Any prepayment of any LIBOR Loans made on
other than the last day of an Interest Period shall obligate the Borrower to
reimburse the Banks in respect thereof pursuant to Section 3.3(d). Upon receipt
by the Agent of a notice pursuant to this Section 3.3(b), the Agent shall
promptly forward a copy of such notice, by telecopier in the case of a
prepayment of LIBOR Loans comprising Revolving Credit Borrowing, to each of the
Banks.
(c) MANDATORY PREPAYMENTS.
(i) If on any Banking Day the aggregate outstanding amount of
the Revolving Credit Loans under the Revolving Credit Facility PLUS the
aggregate Risk Participation Exposures PLUS the aggregate outstanding
amount of Swingline Loans advanced to the Borrower
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<PAGE> 29
exceeds the Total Commitment Amount then in effect, the Borrower shall
on such day prepay an aggregate principal amount of the related
Revolving Credit Loans in an amount at least equal to such excess,
together with accrued interest to the date of such prepayment on the
principal amount prepaid, to the Agent for the account of each of the
Banks ratably in accordance with their Commitments; and
(ii) If as of the end of any Fiscal Quarter, the Senior
Leverage Ratio is equal to or greater than 3.50 to 1, then within
forty-five (45) days following the end of such Fiscal Quarter, the
Borrower shall prepay to the Agent, for application to the Revolving
Credit Loans, an amount equal to Excess Cash Flow for such Fiscal
Quarter; and
(iii) If as of the end of any Fiscal Quarter, the Senior
Leverage Ratio is equal to or greater than 3.50 to 1, then, on the date
on which the Borrower or any Subsidiary of the Borrower, as the case
may be, receives any sum described in (A) or (B), below, the Borrower
shall prepay to the Agent, for application to the Revolving Credit
Loans, an amount equal to one hundred percent (100%) of (A) the
aggregate amount of all equity capital paid into the Borrower or any
Subsidiary of the Borrower, on a Consolidated basis, during the
immediately succeeding Fiscal Quarter and (B) the proceeds of all
Subordinated Debt issued by the Borrower or any Subsidiary of the
Borrower during the immediately succeeding Fiscal Quarter; and
(iv) If as of the end of any Fiscal Quarter, the Senior
Leverage Ratio is less than 3.50 to 1, then , on the date on which the
Borrower or any Subsidiary of the Borrower, as the case may be,
receives any sum described in (A) or (B), below, the Borrower shall
prepay to the Agent, for application to the Revolving Credit Loans, an
amount equal to fifty percent (50%) of (A) the aggregate amount of all
equity capital paid into the Borrower or any Subsidiary of the
Borrower, on a Consolidated basis, during the immediately succeeding
Fiscal Quarter and (B) the proceeds of all Subordinated Debt issued by
the Borrower or any Subsidiary of the Borrower during the immediately
succeeding Fiscal Quarter.
Any prepayment of any LIBOR Loans made pursuant to this Section 3.3(c) on other
than the last day of an Interest Period shall obligate the Borrower to reimburse
the Banks in respect thereof pursuant to Section 3.3(d).
(d) PREPAYMENT COMPENSATION FOR LIBOR LOANS. In any case of prepayment
of any LIBOR Loans comprising a Revolving Credit Borrowing, the Borrower agrees
that if Adjusted LIBOR as determined as of 11:00 a.m. London time, two (2)
Banking Days prior to the date of prepayment of any LIBOR Loans comprising a
Revolving Credit Borrowing (hereafter, "Prepayment LIBOR") shall be lower than
the last Adjusted LIBOR previously determined for those LIBOR Loans comprising a
Revolving Credit Borrowing with respect to which prepayment is intended to be
made (hereinafter, "Last LIBOR"), then the Borrower shall, upon written notice
by the Agent, promptly pay to the Agent, for the account of each of the Banks,
in immediately available funds, compensation for such prepayment measured by a
rate (the "LIBOR Prepayment Compensation Rate") which shall be equal to the
difference between the Last LIBOR and the Prepayment LIBOR. In determining the
Prepayment LIBOR, the Agent shall apply a rate equal to Adjusted LIBOR for a
deposit approximately equal to the amount of such prepayment which would be
applicable to an Interest Period commencing on the date of such prepayment and
having a duration as nearly equal as practicable to the remaining duration of
the actual Interest Period during which such prepayment is to be made. The LIBOR
Prepayment Compensation Rate shall be applied to all or such part of the
principal amounts of the Notes as related to the LIBOR Loans to be prepaid, and
the prepayment compensation shall be computed for the period commencing with the
date on which such
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prepayment is to be made to that date which coincides with the last day of the
Interest Period previously established when the LIBOR Loans, which are to be
prepaid, were made. In the event the Borrower cancels a Notice of Borrowing with
respect to a Revolving Credit Borrowing comprised of LIBOR Loans subsequent to
the delivery to the Agent of such notice, such cancellation shall be treated as
a prepayment as to which the Banks shall be entitled to the aforementioned
prepayment compensation for the full Interest Period which would have been in
effect had such Notice of Borrowings not been canceled; provided that, in such
case, Prepayment LIBOR shall be measured on the date on which the Agent receives
notice of cancellation and not two (2) Banking Days prior thereto.
SECTION 3.4 FEES.
(a) COMMITMENT FEE. The Borrower agrees during the Commitment Period to
pay to each Bank, through the Agent, at the dates specified herein, an unused
commitment fee (a "Commitment Fee") at a rate per annum, determined on a daily
basis, equal to the Applicable Fee Percentage for Commitment Fees from time to
time in effect as determined pursuant to Section 3.4(b) on the Unused Commitment
of such Bank in respect of the Revolving Credit Facility, determined on a daily
basis. Such Commitment Fee shall be payable in arrears on each August 1,
November 1, February 1 and May 1, commencing November 1, 1999, in respect of the
immediately preceding Accrual Period and on the earlier date on which the
Commitment of such Bank shall be terminated or assigned in whole.
(b) DETERMINATION OF APPLICABLE FEE PERCENTAGE. So long as no Event of
Default shall exist, the Applicable Fee Percentage shall be adjusted as herein
specified as of the first day of the Commitment Period and thereafter as of each
Fee Adjustment Date, commencing with the Fee Adjustment Date on February 1,
2000, by reference to (A) the financial statements required by Section 8.1(a) or
Section 8.1(b), as the case may be, for the period ending as of the Fee
Determination Date for such Fee Adjustment Date and (B) a certificate complying
with Section 8.1(c)(ii) certifying the Borrower's Total Leverage Ratio as of
such Fee Determination Date. As of any such Fee Adjustment Date, the Applicable
Fee Percentage for Commitment Fees shall be the Applicable Fee Percentage
therefor indicated in the definition of the term "Applicable Fee Percentage"
corresponding to the Borrower's Total Leverage Ratio as of the Fee Determination
Date for such Fee Adjustment Date. Any such adjustment of the Applicable Fee
Percentage shall cease to be effective from the earlier of the next Fee
Adjustment Date or the date on which an Event of Default shall occur.
Notwithstanding anything to the contrary contained in the foregoing, upon and
during the continuance of an Event of Default (but without waiving such Event of
Default or limiting any right or remedy of the Banks or the Agent in respect
thereof), the Applicable Fee Percentage shall immediately revert to fifty (50)
Basis Points per annum.
(c) RISK PARTICIPATION FEE. The Borrower shall pay to the Letter of
Credit Bank, and the Letter of Credit Bank shall share with the Banks, on a pro
rata basis based on their respective Ratable Portions, a risk participation fee
(the "Risk Participation Fee") in an amount equal to the per annum rate equal to
the Applicable LIBOR Percentage in effect pursuant to Section 3.5(b), TIMES the
daily average amount of all Letters of Credit outstanding during each Accrual
Period. The Borrower shall pay the Risk Participation Fees to the Letter of
Credit Bank, and upon receipt the Letter of Credit Bank shall pay such Risk
Participation Fees to the Agent for the account of the Banks, on the last day of
each Accrual Period, commencing with the Accrual Period ending October 31, 1999.
(d) FEES NONREFUNDABLE. All fees set forth in this Section 3.4 and
closing fees payable pursuant to Sections 6.1 and 6.2 shall be paid on the date
due, in immediately available funds, to the
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Agent for distribution, if and as appropriate, to the Banks and, once paid, none
of such fees shall be refundable under any circumstances.
SECTION 3.5 INTEREST.
(a) REGULAR INTEREST. The Borrower shall pay interest on the unpaid
principal amount of each Loan made by each Bank from the date of such Loan until
such principal amount shall be paid in full at the following times and rates per
annum:
(i) PRIME RATE LOANS. During such periods as a Revolving
Credit Loan is a Prime Rate Loan, a rate per annum equal at all times
to the Prime Rate, plus the Applicable Prime Rate Percentage in effect
from time to time, payable quarterly, in arrears, on the last day of
each Accrual Period and on the date such Prime Rate Loan shall be
converted or paid in full and at maturity (whether by reason of
acceleration or otherwise).
(ii) LIBOR LOANS. During such periods as a Revolving Credit
Loan is a LIBOR Loan, a rate per annum equal to the sum of the Adjusted
LIBOR, plus the Applicable LIBOR Percentage in effect from time to time
during the Interest Period of such LIBOR Loan, in accordance with
Section 3.1(h), payable (A) on the last day of each Interest Period and
(B) if such Interest Period has a duration of more than three months,
three months after the first day of such Interest Period and (C) on the
date such LIBOR Loan shall be converted to a Prime Rate Loan or to a
LIBOR Loan of a different Interest Period or paid in full and at
maturity (whether by reason of acceleration or otherwise).
(b) APPLICABLE LIBOR PERCENTAGE; APPLICABLE PRIME RATE PERCENTAGE;
TERMS OF ADJUSTMENT.
(i) COMMENCEMENT; CONDITIONS. So long as no Event of Default
shall exist, the Applicable LIBOR Percentage and the Applicable Prime
Rate Percentage shall be adjusted as herein specified as of the first
day of the Commitment Period and thereafter as of each Interest
Adjustment Date, commencing with the Interest Adjustment Date on
February 1, 2000, by reference to (A) the financial statements required
by Section 8.1(a) or Section 8.1(b) for the period ending as of the
Interest Determination Date for such Interest Adjustment Date and (B) a
certificate complying with Section 8.l(c)(ii) certifying the Borrower's
Total Leverage Ratio as of such Interest Determination Date.
(ii) CALCULATION AND DURATION OF ADJUSTMENT. On each Interest
Adjustment Date the Applicable LIBOR Percentage and the Applicable
Prime Rate Percentage shall be the percent per annum in Basis Points
indicated in the definitions of the terms "Applicable LIBOR Percentage"
and "Applicable Prime Rate Percentage" corresponding to the Borrower's
Total Leverage Ratio as of the Interest Determination Date for such
Interest Adjustment Date. Notwithstanding anything to the contrary
contained in the foregoing, upon and during the continuance of an Event
of Default, but without waiving such Event of Default or limiting any
right or remedy of the Banks or the Agent in respect thereof, (A) the
Applicable LIBOR Percentage shall immediately revert to Two Hundred
Seventy-five (275) Basis Points if a Qualifying Sub-Debt Issuance has
not occurred and Two Hundred Fifty (250) Basis Points if a Qualifying
Sub-Debt Issuance has occurred, and (B) the Applicable Prime Rate
Percentage shall immediately revert to One Hundred Seventy-five (175)
Basis Points.
(c) INTEREST ON UNPAID OBLIGATIONS; INTEREST UPON EVENT OF DEFAULT. If
any principal, interest or fees or other sum due under this Agreement shall not
be paid when due, or if any Revolving Credit Note or the Swingline Note shall
not be paid at maturity, whether such maturity occurs by
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<PAGE> 32
reason of lapse of time or by operation of any provision of acceleration of
maturity therein contained (and without waiving any Event of Default resulting
therefrom or limiting any right or remedy of the Banks or the Agent in respect
thereof), the principal thereof and the unpaid interest and fees thereon, or
such fees or other sum shall bear interest, payable on demand, at the Increased
Rate from time to time in effect in respect of such Loan or other Obligation.
The Borrower acknowledges that this calculation will result in the accrual of
interest on interest and the Borrower expressly consents and agrees to this
provision. In addition, notwithstanding anything to the contrary contained in
this Agreement, upon and during the continuance of an Event of Default, but
without waiving such Event of Default or limiting any right or remedy of the
Banks or the Agent in respect thereof all of the Obligations shall bear interest
at the Increased Rate.
(d) INTEREST RATE DETERMINATION.
(i) AGENT DETERMINATION; NOTICE. The Agent shall determine the
Prime Rate and Adjusted LIBOR in accordance with the definitions of
Prime Rate, LIBOR Rate and Adjusted LIBOR set forth in Section 1.1. The
Agent shall give prompt notice to the Borrower and the Banks of the
applicable interest rate determined by the Agent for purposes of
Section 3.5(a)(i) or (ii).
(ii) FAILURE OF BORROWER TO ELECT. If no Interest Period is
specified in any Notice of Borrowing for any LIBOR Rate Loans
comprising a Revolving Credit Borrowing, the Borrower shall be deemed
to have selected instead Prime Rate Loans. If the Borrower shall not
have given notice in accordance with Section 3.1(h) to continue any
LIBOR Rate Loans comprising a Revolving Credit Borrowing into a
subsequent Interest Period (and shall not have otherwise delivered a
Rate Conversion/Continuation Request in accordance with Section 3.1(h)
to convert such Loans), subject to the limitations set forth in Section
3.1(h), such LIBOR Rate Loans shall, at the end of the Interest Period
applicable thereto (unless repaid pursuant to the terms hereof),
automatically shall be converted to (or, as the case may be, continued
as) LIBOR Rate Loans having an interest Period of one (1) month,
provided that if such limitations of Section 3.1(h) would not be
complied with, such LIBOR Rate Loans automatically shall be converted
to Prime Rate Loans.
SECTION 3.6 PAYMENTS AND COMPUTATIONS.
(a) PAYMENTS. The Borrower shall make each payment hereunder and under
the Notes with respect to principal of, interest on, and other amounts relating
to Revolving Credit Loans, not later than 11:00 A.M. (Cleveland, Ohio time) on
the day when due in dollars to the Agent in immediately available funds by
deposit of such funds to the Agent's account maintained at the Payment Office.
Payments received after 12:00 noon (Cleveland, Ohio time) on any day shall be
deemed to have been received on the next succeeding Banking Day. The Agent will
promptly thereafter, on the same Banking Day, cause to be distributed like funds
relating to the payment of principal, interest, Commitment Fees or other fees or
other amounts which may be received in respect of the Obligations of the
Borrower under this Agreement ratably (other than amounts payable pursuant to
the express terms of this Agreement solely to the Agent or the Letter of Credit
Bank, as the case may be) to each of the Banks for the account of its respective
Lending Office, and like funds relating to the payment of any other amount
payable to any Bank to such Bank for the account of its Lending Office. The
funds so distributed to each Bank shall in each case be applied by such Bank in
accordance with the terms of this Agreement.
(b) AUTHORIZATION TO CHARGE ACCOUNT. If and to the extent payment owed
to any Bank is not made when due hereunder or under the Note held by such Bank,
the Borrower hereby authorizes
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such Bank to charge from time to time against any or all of the Borrower's
general deposit accounts with such Bank any amount so due. Any Bank exercising
the foregoing authorization will endeavor to advise the Borrower of such
exercise reasonably promptly thereafter; provided, however, that such Bank's
failure to do so shall not subject such Bank, the Agent or any other Bank to
liability or claim of any nature whatsoever and shall not create in any Obligor
any set-off, defense or other claim of any nature whatsoever.
(c) COMPUTATIONS OF INTEREST AND FEES. All computations of interest,
Commitment Fees and Risk Participation Fees and all other fees shall be made by
the Agent, (i) in the case of LIBOR Loans, on the basis of a year of 360 days,
and (ii) in the case of Prime Rate Loans, Risk Participation Fees and Commitment
Fees, on the basis of a year of 365/366 days, in each case for the actual number
of days (including the first day but excluding the last day) occurring in the
period for which such interest or fees are payable. Each determination by the
Agent (or, in the case of Section 3.7, by a Bank) of an interest rate hereunder
shall be conclusive and binding for all purposes, absent manifest error.
(d) PAYMENT NOT ON BANKING DAY. Whenever any payment hereunder or under
the Notes shall be stated to be due on a day other than a Banking Day, such
payment shall be made on the next succeeding Banking Day, except, that, if such
extension would cause payment of interest on or principal of LIBOR Loans to be
made in the next following calendar month, such payment shall be made on the
immediately preceding Banking Day. Any such extension or reduction of time shall
in such case be included in the computation of payment of interest or Commitment
Fee, as the case may be.
(e) PRESUMPTION OF PAYMENT IN FULL BY BORROWER. Unless the Agent shall
have received notice from the Borrower prior to the date on which any payment is
due to the Banks hereunder that the Borrower will not make such payment in full,
the Agent may assume that the Borrower will make or have made such payment in
full to the Agent on such date. In reliance upon such assumption, the Agent may,
but shall not be obligated to, distribute to each Bank on such due date the
amount then due such Bank. If and to the extent the Borrower shall not have made
such payment in full to the Agent, each Bank shall repay to the Agent promptly
upon demand the amount distributed to such Bank together with interest thereon,
for each day from the date such amount is distributed to such Bank until the
date such Bank repays such amount to the Agent, at the Federal Funds Rate plus
the amount of any costs, expenses, liabilities or losses incurred by the Agent
in connection with its distribution of such funds, unless such costs, expenses,
liabilities or losses are the result of the gross negligence or wilful
misconduct of the Agent.
SECTION 3.7 RESERVES; TAXES; INDEMNITIES.
(a) RESERVES OR DEPOSIT REQUIREMENTS. If at any time any Law, treaty or
regulation (including, without limitation, Regulation D of the Board of
Governors of the Federal Reserve System) or the interpretation thereof by any
governmental authority charged with the administration thereof or any central
bank or other fiscal, monetary or other authority shall impose (whether or not
having the force of Law), modify or deem applicable any reserve and/or special
deposit requirement (other than reserves included in the Reserve Percentage, the
effect of which is reflected in the interest rate(s) of the LIBOR Loan(s) in
question) against assets held by, or deposits in or for the amount of any loans
by, any Bank, and the result of the foregoing is to increase the cost (whether
by incurring a cost or adding to a cost) to such Bank of making or maintaining
hereunder LIBOR Loans or to reduce the amount of principal or interest received
by such Bank with respect to such LIBOR Loans, then upon demand by such Bank the
Borrower shall pay to such Bank from time to time on Interest Adjustment Dates
with respect to such loans, as additional consideration hereunder, additional
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amounts sufficient to fully compensate and indemnify such Bank for such
increased cost or reduced amount, assuming (which assumption such Bank need not
corroborate) such additional cost or reduced amount was allocable to such LIBOR
Loans. A certificate as to the increased cost or reduced amount as a result of
any event mentioned in this Section 3.7(a), setting forth the calculations
therefor, shall be promptly submitted by such Bank to the Borrower and shall, in
the absence of manifest error, be conclusive and binding as to the amount
thereof. Notwithstanding any other provision of this Agreement, after any such
demand for compensation by any Bank, the Borrower, upon at least three (3)
Banking Days' prior written notice to such Bank through the Agent, may prepay
the affected LIBOR Loans in full or convert all LIBOR Loans to Prime Rate Loans
regardless of the Interest Period of any thereof. Any such prepayment or
conversion shall entitle the Banks to the prepayment compensation provided for
in Section 3.3 hereof. Each Bank will notify the Borrower as promptly as
practicable (with a copy thereof delivered to the Agent) of the existence of any
event which will likely require the payment by the Borrower of any such
additional amount under this Section.
(b) IMPOSITION OF TAXES. In the event that by reason of any Law,
regulation or requirement or in the interpretation thereof by an official
authority, or the imposition of any requirement of any central bank whether or
not having the force of Law, any Bank shall, with respect to this Agreement or
any transaction under this Agreement, be subjected to any tax, levy, impost,
charge, fee, duty, deduction or withholding of any kind whatsoever (other than
any tax imposed upon the total net income of such Bank) and if any such measures
or any other similar measure shall result in an increase in the cost to such
Bank of making or maintaining any LIBOR Loan or in a reduction in the amount of
principal, interest or commitment fee receivable by such Bank in respect
thereof, then such Bank shall promptly notify the Borrower in writing stating
the reasons therefor. The Borrower shall thereafter pay to such Bank upon demand
from time to time on Interest Adjustment Dates with respect to such LIBOR Loans,
as additional consideration hereunder, such additional amounts as will fully
compensate such Bank for such increased cost or reduced amount. A certificate as
to any such increased cost or reduced amount, setting forth the calculations
therefor, shall be submitted by such Bank to the Borrower and shall be
rebuttably presumptive evidence of the amount thereof. Notwithstanding any other
provision of this Agreement, after any such demand for compensation by any Bank,
the Borrower, upon at least three (3) Banking Days prior written notice to such
Bank through the Agent, may prepay the affected LIBOR Loans in full or convert
all LIBOR Loans to Prime Rate Loans regardless of the Interest Period of any
thereof. Any such prepayment or conversion shall entitle the Banks to prepayment
compensation provided for in Section 3.3 hereof.
(c) EURODOLLAR DEPOSIT UNAVAILABLE OR INTEREST RATE UNASCERTAINABLE. In
respect of any LIBOR Loans, in the event that the Agent or any Bank shall have
determined that, by reason of circumstances affecting such market, adequate and
reasonable means do not exist for ascertaining the LIBOR rate applicable to such
Interest Period, as the case may be, the Agent or such Bank shall promptly give
notice of such determination to the Borrower and (i) any notice of new LIBOR
Loans (or conversion of existing loans to LIBOR Loans) previously given by the
Borrower and not yet borrowed (or converted, as the case may be) shall be deemed
a notice to make Prime Rate Loans, and (ii) the Borrower shall be obligated
either to prepay or to convert any outstanding LIBOR Loans on the last day of
the then current Interest Period or Periods with respect thereto. Any such
prepayment or conversion shall entitle the Banks to prepayment compensation
provided for in Section 3.3 hereof.
(d) INDEMNITY. Without prejudice to any other provisions of this
Article 3, the Borrower hereby agrees to indemnify each Bank against any loss or
expense which such Bank may sustain or incur as a consequence of any failure by
the Borrower to accept the proceeds of any LIBOR Loan, or otherwise consummate a
Revolving Credit Borrowing in respect of LIBOR Loans, requested by
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the Borrower pursuant to the provisions of this Agreement and of any default by
the Borrower in payment when due of any amount due hereunder in respect of any
LIBOR Loan, including, but not limited to, any loss of profit, premium or
penalty incurred by such Bank in respect of funds borrowed by it for the purpose
of making or maintaining such LIBOR Loan, as determined by such Bank in the
exercise of its sole but reasonable discretion. A certificate as to any such
loss or expense shall be promptly submitted by such Bank to the Borrower and
shall be rebuttably presumptive evidence of the amount thereof.
(e) CHANGES IN LAW RENDERING LIBOR LOANS UNLAWFUL. If at any time any
new Law, treaty or regulation, or any change in any existing Law, treaty or
regulation, or any interpretation thereof by any governmental or other
regulatory authority charged with the administration thereof, shall make it
unlawful for any Bank to fund any LIBOR Loans which it is committed to make
hereunder with moneys obtained in the Eurodollar market, the commitment of such
Bank to fund LIBOR Loans shall, upon the happening of such event, forthwith be
suspended for the duration of such illegality, and such Bank shall by written
notice to the Borrower and the Agent declare that its Commitment with respect to
such Loans has been so suspended and, if and when such illegality ceases to
exist, such suspension shall cease and such Bank shall similarly notify the
Borrower and the Agent. If any such change shall make it unlawful for any Bank
to continue in effect the funding in the applicable Eurodollar market of any
LIBOR Loan previously made by it hereunder, such Bank shall, upon the happening
of such event, notify the Borrower, the Agent and the other Banks thereof in
writing stating the reasons therefor, and the Borrower shall, on the earlier of
(i) the last day of the then current Interest Period or (ii) if required by such
Law, regulation or interpretation, on such date as shall be specified in such
notice, either convert all LIBOR Loans to Prime Rate Loans to the extent
permissible under this Agreement or prepay all LIBOR Loans to the Banks in full.
Any such prepayment or conversion shall entitle the Banks to prepayment
compensation as provided in Section 3.3 hereof.
SECTION 3.8 CAPITAL ADEQUACY. If any Bank shall have determined, that,
whether in effect at the date of this Agreement or hereafter in effect, any
applicable Law, rule, regulation or guideline regarding capital adequacy, or any
change therein, 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 Bank (or its
Lending Office) with any request or directive regarding capital adequacy
(whether or not having the force of Law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on such Bank's capital allocated to the transactions contemplated by this
Agreement (or the capital of its holding company) as a consequence of its
obligations hereunder to a level below that which such Bank (or its holding
company) could have achieved but for such adoption, change or compliance (taking
into consideration such Bank's policies or the policies of its holding company
with respect to capital adequacy) by an amount deemed by such Bank to be
material, then from time to time, within 15 days after demand by such Bank (with
a copy to the Agent), the Borrower shall pay to such Bank such additional amount
or amounts as will compensate such Bank (or its holding company) for such
reduction. Each Bank will designate a different 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 Bank, be otherwise disadvantageous to such
Bank. A certificate of any Bank claiming compensation under this section and
setting forth the additional amount or amounts to be paid to it hereunder shall
be conclusive in the absence of manifest error. In determining such amount, such
Bank may use any reasonable averaging and attribution methods. Within four (4)
months following the date such certificate is furnished claiming compensation by
any such Bank (the "Affected Bank"), the Borrower may replace the Affected Bank
with a lending institution satisfactory to the Agent (the consent to which may
not be unreasonably withheld by the Agent), upon payment to the Affected Bank of
all principal of and interest on all of its then outstanding Revolving Credit
Loans
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and of all Commitment Fees and other Obligations then owing to it and upon such
other terms and conditions as are satisfactory to the Majority Banks. Failure on
the part of any Bank to demand compensation for any reduction in return on
capital with respect to any period shall not constitute a waiver of such Bank's
rights to demand compensation for any reduction in return on capital in such
period or in any other period. The protection of this Section 3.8 shall be
available to each Bank regardless of any possible contention of the invalidity
or inapplicability of the Law, regulation or other condition which shall have
been imposed.
SECTION 3.9 TAXES.
(a) TAXES; WITHHOLDING. Any and all payments by the Borrower hereunder,
under the Notes or the other Related Writings shall be made, in accordance with
the provisions of Article 3, free and clear of and without deduction for any and
all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in the case
of each Bank, taxes imposed on its income, and franchise taxes imposed on it, by
the jurisdiction under the Laws of which such Bank is organized or any political
subdivision thereof (all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter referred to as "Taxes").
If the Borrower shall be required by Law to deduct any Taxes from or in respect
of any sum payable hereunder or under any Note to any Bank or the Agent, (i) the
sum payable shall be increased as may be necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 3.9) such Bank (as the case may be) receives an amount equal
to the sum it would have received had no such deductions been made, (ii) the
Borrower shall make such deductions, and (iii) the Borrower shall pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with applicable Law. All such Taxes shall be paid by the Borrower
prior to the date on which penalties attach thereto or interest accrues thereon;
provided, however, that, if any such penalties or interest become due, the
Borrower shall make prompt payment thereof to the appropriate governmental
authority. The Borrower shall indemnify each Bank for the full amount of such
Taxes (including any Taxes on amounts payable under this Section 3.9) paid by
the Bank and any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto, whether or not such Taxes were correctly or
legally asserted. Any indemnification payment shall be made within thirty (30)
days from the date the Bank makes written demand therefor.
(b) STAMP TAXES. The Borrower agrees to pay, and will indemnify each
Bank and the Agent for, any present or future stamp or documentary taxes or any
other excise or property taxes, charges or similar levies which arise from any
payment made hereunder or under the Notes or from the execution, delivery or
registration of, or otherwise with respect to, this Agreement or the Notes
(hereinafter referred to as "Other Taxes").
(c) OTHER TAXES. The Borrower will indemnify each Bank and the Agent
for the full amount of Taxes or Other Taxes (including, without limitation, any
Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this
Section 3.9) paid by such Bank or the Agent (as the case may be) and any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted. Any indemnification payment shall be made within thirty (30)
days from the date such Bank or the Agent (as the case may be) makes written
demand therefor.
(d) REMOVAL OF BANK. Within four (4) months following the date the
Agent or a Bank shall make a written demand for Taxes or Other Taxes pursuant to
this Section 3.9, the Borrower may replace the Affected Bank with a lending
institution satisfactory to the Agent (the consent to which may not be
unreasonably withheld by the Agent), upon payment to the Affected Bank of all
principal
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of and interest on all of its then outstanding Revolving Credit Loans and of all
Commitment Fees and other Obligations then owing to it and upon such other terms
and conditions as are satisfactory to the Majority Banks (exclusive of each
Affected Bank and be computed without consideration of the Commitment of each
such Affected Bank). Failure on the part of any Bank to demand compensation for
any reduction in return on capital with respect to any period shall not
constitute a waiver of such Bank's rights to demand compensation for any
reduction in return on capital in such period or in any other period. The
protection of this Section shall be available to each Bank regardless of any
possible contention of the invalidity or inapplicability of the law, regulation
or other condition which shall have been imposed.
(e) REQUEST FOR REFUND. At the reasonable request of the Borrower, a
Bank or the Agent shall apply at the Borrower's expense for a refund in respect
of Taxes or Other Taxes previously paid by the Borrower pursuant to this Section
3.9 if in the opinion of such Bank or the Agent there is a reasonable basis for
such refund. Notwithstanding the foregoing, none of the Banks or the Agent shall
be obligated to pursue such refund if, in its sole good faith judgment, such
action would be disadvantageous to it. If any Bank subsequently receives from a
taxing authority a refund of any Tax previously paid by the Borrower and for
which the Borrower has indemnified the Bank pursuant to this Section 3.9, such
Bank shall within thirty (30) days after receipt of such refund, and to the
extent permitted by applicable Law, pay to the Borrower the net amount of any
such recovery after deducting taxes and reasonable expenses attributable
thereto.
(f) EXEMPTION CERTIFICATE. Not later than the commencement of the
Commitment Period or, in the case of any bank or financial institution that
becomes a Bank after such date, pursuant to Article 13, the date of the
instrument of assignment pursuant to which such bank or financial institution
became a Bank, and annually on each Anniversary Date thereafter or at such other
times as the Agent or the Borrower may request, each Bank organized under the
Laws of a jurisdiction outside the United States shall provide the Agent and the
Borrower with duly completed copies of Form 1001 or Form 4224 or any successor
form prescribed by the Internal Revenue Service of the United States certifying
that such Bank is exempt from United States withholding taxes with respect to
all payments to be made to such Bank hereunder or other document satisfactory to
the Borrower and the Agent indicating that all payments to be made to such Bank
hereunder are not subject to such taxes (each such certificate, an "Exemption
Certificate"). Unless the Agent and the Borrower has received an Exemption
Certificate from such Bank, the Borrower, or the Agent if the Borrower has not
withheld, may withhold taxes from such payments at the applicable statutory rate
(subject, in the case of the Borrower to the requirements of Section 3.9(a));
provided, however, that if the Borrower has withheld it shall so notify the
Agent. If the Borrower is required to pay additional amounts to any Bank
pursuant to this Section 3.9, such Bank shall use reasonable efforts to
designate a different Lending Office if such designation will thereafter avoid
the need for any additional payments under this Section 3.9 and will not, in the
sole good faith judgment of such Bank, be otherwise disadvantageous to such
Bank. A Bank which ceases to be exempt from United States withholding taxes
shall notify the Agent and the Borrower promptly thereof.
(g) FURNISHING OF CERTIFICATE. Within 30 days after the date of any
payment of Taxes, the Borrower will furnish to the Agent, at its address set
forth on the signature page of the Agent to this Agreement or such other address
as the Agent notifies the Banks, the original or a certified copy of a receipt
evidencing payment thereof. The Borrower hereby represents and warrants to the
Agent and each of the Banks that no Taxes are payable in respect of any payment
made hereunder.
(h) SURVIVAL OF PROVISION. Without prejudice to the survival of any
other agreement of the Borrower hereunder, the agreements and liabilities of the
Borrower contained in this Section 3.9
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shall survive the payment in full of the outstanding Revolving Credit Loans,
Commitment Fees, Risk Participation Fees, interest and termination of the
Commitments hereunder.
ARTICLE 4
PRO RATA TREATMENT
SECTION 4.1 PRO RATA TREATMENT. Except as required by Section 3.7 or
Section 11.4(b) or as permitted under Section 3.9, each Revolving Credit
Borrowing, each participation in a Letter of Credit or a Swingline Loan, each
payment or prepayment of principal of any Revolving Credit Borrowing, each
payment of interest on the Revolving Credit Loans, each payment of the
Commitment Fees, each payment of Risk Participation Fees, each reduction of the
Commitments, each Rate Conversion or Rate Continuation of Revolving Credit Loans
comprising a Revolving Credit Borrowing shall be allocated among the Banks in
accordance with each Bank's Ratable Portion of the Total Commitment Amount (or
if the Commitments shall have expired or been terminated, in accordance with the
respective principal amounts of each Bank's Revolving Credit Loans).
ARTICLE 5
LETTERS OF CREDIT
SECTION 5.1 LETTERS OF CREDIT.
(a) ISSUANCE. Subject to the terms and conditions set forth this
Agreement, upon written request from the Borrower, a copy of which is delivered
to the Agent, the Letter of Credit Bank will issue, for the account of the
Borrower or any Subsidiary Guarantor, on or at any time after the commencement
of the Commitment Period but prior to the earliest of (i) fifteen (15) days
prior to the last day of the Commitment Period or (ii) the date on which the
Banks' Commitments are terminated in full, whether pursuant to Section 3.2 or
Article 11 hereof or otherwise, Letters of Credit in such form as the Borrower
and the Letter of Credit Bank may agree, but in no case having a final expiry
date later than fifteen (15) Banking Days prior to last day of the Commitment
Period, and in all cases in compliance with all applicable provisions of Law;
provided, however, that, in no event shall (x) the aggregate Risk Participation
Exposure exceed the LC Sublimit or (y) the aggregate principal amount of all
Revolving Credit Loans, plus the aggregate Risk Participation Exposure, plus the
aggregate outstanding amount of all Swingline Loans, exceed the Total Commitment
Amount. The Agent shall advise the Banks promptly following the issuance of a
Letter of Credit or other event or condition which affects the Banks' respective
Risk Participation Exposures.
(b) REIMBURSEMENT OBLIGATIONS. Each Letter of Credit issued by the
Letter of Credit Bank hereunder (whether for the account of the Borrower or a
Subsidiary Guarantor) shall be issued pursuant to the Letter of Credit Bank's
standard and customary form of letter of credit Reimbursement Agreement (or
equivalent agreement otherwise named) then in use under which the Borrower (and,
at the option of the Letter of Credit Bank, in addition to the Borrower, jointly
and severally, such Subsidiary Guarantor) is the reimbursement obligor and shall
identify: (i) the respective dates of issuance and expiry of such Letter of
Credit (which date of expiry shall not be greater than one (1) year after its
issuance), (ii) the amount of such Letter of Credit (which shall be a sum
certain), (iii) the beneficiary and account party of such Letter of Credit and
(iv) the drafts and other documents (if any) necessary to be presented to the
Letter of Credit Bank upon a drawing thereunder. To the extent that any of the
terms of the above-referenced Reimbursement Agreement conflict with the terms of
this Agreement, the terms of this Agreement shall control.
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(c) PAYMENT OF LETTER OF CREDIT OBLIGATIONS. The Borrower hereby
agrees to pay the Letter of Credit Bank, on demand, the amount of each drawing
under any Letter of Credit issued by the Letter of Credit Bank for the benefit
of the Borrower or any Subsidiary pursuant to this Section, plus interest from
the date of such drawing until paid in full to the Letter of Credit Bank by the
Borrower or pursuant to Section 5.2(b) hereof, at an annual rate equal to the
Prime Rate, plus the Applicable Prime Rate Percentage, from time to time in
effect.
SECTION 5.2 LETTER OF CREDIT BANK RELATIONSHIP WITH BANKS.
(a) RISK PARTICIPATION. The Letter of Credit Bank hereby agrees that it
will sell simultaneously with the issuance of each Letter of Credit, and each
other Bank hereby agrees that it will buy simultaneously with the issuance of
each Letter of Credit (subject to the following sentence) a participation in any
payment which the Letter of Credit Bank makes for the account of the Borrower
under any such Letter of Credit or acceptance for which payment the Letter of
Credit Bank is not otherwise immediately reimbursed by the Borrower in an amount
equal to such Bank's Ratable Portion. The aggregate principal amount of all
outstanding Revolving Credit Loans of such Bank plus such Bank's aggregate Risk
Participation Exposure (after taking into effect such Bank's Ratable Portion of
the risk participation created under this Section 5.2), plus such Bank's
participation in all outstanding Swingline Loans shall not exceed such Bank's
Commitment in effect from time to time. The sale of the risk participation by
the Letter of Credit Bank and the purchase thereof by each Bank, respectively,
shall occur simultaneously with and shall be evidenced by each Letter of Credit.
(b) REIMBURSEMENT OF LETTER OF CREDIT BANK. The Letter of Credit Bank
will notify the Agent, who will promptly notify each other Bank, if the Letter
of Credit Bank makes any payment under any Letter of Credit. Upon demand by the
Agent each such other Bank shall pay to the Agent that Bank's Ratable Portion of
each such payment made by the Letter of Credit Bank. Each such payment shall for
all purposes hereunder be deemed to be an Prime Rate Loan (it being understood
that (i) each Bank's obligation to make such payment is absolute and
unconditional and shall not be affected by any event or circumstance whatsoever,
including the occurrence of any Incipient Default hereunder or the failure of
any condition precedent set forth in Article 7 to be satisfied and (ii) each
such payment shall be made without any offset, abatement, withholding or
reduction whatsoever). In addition, upon demand by the Letter of Credit Bank
through the Agent, each other Bank will pay an amount equal to such Bank's
Ratable Portion of all costs and expenses not reimbursed by the Borrower which
have been incurred or made by the Letter of Credit Bank as the result of, or in
connection with, any action including, but not limited to, legal action which
may be taken by Agent to obtain reimbursement for payments made by Agent under
any Letter of Credit, unless such costs and expenses are the result of the gross
negligence or wilful misconduct of, as the case may be, the Letter of Credit
Bank or the Agent.
(c) RIGHTS AND OBLIGATIONS OF LETTER OF CREDIT BANK. Neither the
Letter of Credit Bank, nor any of its correspondents, shall be responsible,
provided it has exercised reasonable care, as to any document presented under a
Letter of Credit, or any renewal or extension thereof, which appears to be
regular on its face and appears on its face to conform to the terms of the
Letter of Credit and to make reasonable reference thereto, for the validity or
sufficiency of any signature or endorsement, for delay in giving any notice or
failure of any instrument to bear adequate reference to the Letter of Credit, or
to any renewal or extension thereof, or failure of documents not clearly
specified in the Letter of Credit to accompany any instrument at negotiation, or
for failure of any person to note the amount of any draft on the reverse of the
Letter of Credit or on any renewal or extension thereof. Any action, inaction or
omission on the part of the Letter of Credit Bank or any of its correspondents,
under or in connection with any Letter of Credit or any renewal or extension
thereof or the related instruments or documents, if in good faith and in
conformity with such Laws,
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regulations or customs as are applicable and the terms of this Section 5.2,
shall be binding upon the Borrower and shall not place the Letter of Credit Bank
or any of its correspondents under any liability to the Borrower, in the absence
of negligence by the Letter of Credit Bank or its correspondents. The Letter of
Credit Bank's rights, powers, privileges and immunities specified in or arising
under this Agreement are in addition to any heretofore or at any time hereafter
otherwise created or arising, whether by statute or rule of Law or contract.
(d) EFFECT OF APPLICABLE LAW OR CUSTOM. All Letters of Credit issued
hereunder will, except to the extent otherwise expressly provided, be governed
by the Uniform Customs and Practice for Documentary Credits, International
Chamber of Commercein force at the time of issuance of the Letter of Credit.
(e) TERMINATION OF LETTER OF CREDIT COMMITMENT. In the event that (i)
any restriction is imposed on the Letter of Credit Bank (including, without
limitation, any legal lending or acceptance limits imposed by the United States
of America or any political subdivision thereof) which in the judgment of the
Letter of Credit Bank after consultation with the Borrower would prevent the
Letter of Credit Bank from issuing Letters of Credit or maintaining its
commitment to issue Letters of Credit or (ii) there shall have occurred, at any
time during the term of this Agreement (A) any adverse change or a development
involving a prospective adverse change affecting the condition of the Borrower
which would materially impair the ability of the Borrower to meet their
obligations under this Article 5, (B) any outbreak of hostilities or other
national or international crisis or change in economic conditions if the effect
of such outbreak, crisis or change would make the creation of Letters of Credit
or the discount or sale thereof impracticable, or (C) the enactment,
publication, decree or other promulgation of any statute, regulation, rule or
order of any court or other governmental authority which would materially and
adversely affect the ability of the Borrower to perform its obligations under
this Agreement, then the Letter of Credit Bank, through the Agent, in the case
of the occurrence of any event described above, shall give written notice of the
occurrence of such event to the Borrower and the Banks, whereupon the commitment
of the Letter of Credit Bank to issue Letters of Credit shall terminate on the
effective date of such notice. The Borrower shall forthwith pay to the Letter of
Credit Bank all obligations in respect of Letters of Credit on the date of
drawing of such Letter of Credit.
SECTION 5.3 RESIGNATION AND REMOVAL OF LETTER OF CREDIT BANK. The
Letter of Credit Bank (or any successor) may at any time resign as such by
giving thirty (30) days' prior written notice to the Agent, the Borrower and
each Bank; and the Majority Banks may remove the Letter of Credit Bank at any
time with or without cause by giving written notice to the Agent, the Letter of
Credit Bank and the Borrower. In any such case, the Majority Banks may appoint a
successor to the resigned or removed Letter of Credit Bank (the "Former LC
Bank"), provided that the Majority Banks obtain the Borrower's prior written
consent to the successor (which consent shall not be unreasonably withheld), by
giving written notice to the Agent, the Borrower, the Former LC Bank and each
Bank not participating in the appointment; provided, however, that, if at the
time of the proposed resignation or removal of a Letter of Credit Bank, the
Borrower is the subject of an action referred to in Section 10.9 or any other
Event of Default shall have occurred and be continuing, the Borrower's consent
shall not be required. In the absence of a timely appointment, the Former LC
Bank shall have the right (but not the duty) to make a temporary appointment of
any Bank (but only with that Bank's consent) to act as its successor pending an
appointment pursuant to the immediately preceding sentence. In either case, the
successor Letter of Credit Bank shall deliver its written acceptance of
appointment to the Borrower, the Agent, each Bank and the Former LC Bank,
whereupon (a) the Former LC Bank shall execute and deliver such assignments and
other writings as the successor Letter of Credit Bank may reasonably require to
facilitate its being and acting as the Letter of Credit Bank, (b) the successor
Letter of Credit Bank shall in any event automatically
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acquire and assume all the rights and duties as those prescribed for the Letter
of Credit Bank by this Article 5 and (c) the Former LC Bank shall be discharged
from its duties and obligations under this Agreement and the Related Writings.
Notwithstanding anything to the contrary contained in the foregoing, the Former
LC Bank shall continue to enjoy all of the rights and remedies (as against the
Borrower and the other Banks) provided to the Letter of Credit Bank hereunder
with respect to any and all Letters of Credit which are outstanding on the
effective date of its resignation or removal and which are not replaced by
Letters of Credit issued by its successor or otherwise canceled.
ARTICLE 6
OPENING COVENANTS; CONDITIONS TO INITIAL CREDIT EVENT
SECTION 6.1 OPENING COVENANTS. Prior to or concurrently with the
execution and delivery of this Agreement, the Borrower shall furnish to Agent
originals or copies for delivery to each Bank and the Letter of Credit Bank of
the following:
(a) BORROWER CERTIFICATES. A certificate executed by an authorized
officer of the Borrower and a secretary or assistant secretary of the Borrower
certifying (a) the resolutions of the Board of Directors of the Borrower
authorizing the execution, performance and delivery of this Agreement, the Notes
and all other Related Writings, (b) the names and signatures of the officers of
the Borrower executing or attesting to such documents, and (c) the absence of
any Event of Default or Incipient Default;
(b) SUBSIDIARY CERTIFICATES. A certificate executed by an authorized
officer of each Domestic Subsidiary and a secretary or assistant secretary of
such Domestic Subsidiary certifying (a) the resolutions of, as applicable, the
Board of Directors or members of such Subsidiary authorizing the execution,
performance and delivery of the Guaranty of Payment and all other Related
Writings to which it is a party, and (b) the names and signatures of the
officers of such Domestic Subsidiary executing or attesting to the Guaranty of
Payment;
(c) GOOD STANDING CERTIFICATES. Certificates of good standing for the
Borrower and each Domestic Subsidiary, certified by the office of the Secretary
of State or other similar official of the state of incorporation of such
entities, and certificates of qualification to transact business as a foreign
corporation or other entity in every other State where such Obligor's failure so
to qualify could have a Material Adverse Effect;
(d) PAYMENT OF AGENT'S LEGAL FEES. Evidence of payment to the Agent,
for its own account, of the reasonable legal fees and expenses of the Agent.
SECTION 6.2 PRIOR TO INITIAL CREDIT EVENT. Prior to or concurrently
with the occurrence of the Initial Credit Event, the Borrower shall furnish to
Agent originals or copies for delivery to each Bank and the Letter of Credit
Bank of the following:
(a) REVOLVING CREDIT NOTES; SWINGLINE NOTE. Revolving Credit Notes, in
favor of each of the Banks, in the principal amount of such Bank's Ratable
Portion of the Total Commitment Amount, and the Swingline Note, in favor of the
Agent, in the principal amount of $15,000,000, each duly executed by the
Borrower;
(b) GUARANTIES OF PAYMENT. A Guaranty of Payment of all Obligations
incurred by the Borrower to the Banks pursuant to this Agreement, in the form of
Exhibit F hereto, executed and delivered to the Banks by each Domestic
Subsidiary of the Borrower;
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(c) EXISTING CREDIT FACILITY. Contemporaneously with the Initial Credit
Event hereunder, the Borrower shall have terminated the commitments of the
lenders under the Existing Credit Agreements and prepaid (with such exceptions
as may be agreed to by the Agent and the Banks) all borrowings thereunder,
including letters of credit outstanding thereunder;
(d) CREDIT REQUEST AND DISBURSEMENT DIRECTION LETTER. To the extent, if
any, that an advance of Loans on such date is to be requested, a Notice of
Borrowing and a letter from the Borrower directing the Agent to disburse the
proceeds of the initial Revolving Credit Borrowing;
(e) LEGAL OPINION. A favorable opinion of counsel for the Borrower, all
in form and substance reasonably acceptable to the Agent;
(f) BORROWER CERTIFICATE. A certificate executed by an authorized
officer of the Borrower and a secretary or assistant secretary of the Borrower
certifying the absence of any Event of Default or Incipient Default;
(g) LETTER OF CREDIT REIMBURSEMENT AGREEMENT. The Letter of Credit
Reimbursement Agreement referred to in Section 5.1(b), above, duly executed by
the Borrower (and any applicable Subsidiary Guarantor) with respect to any
Letter of Credit issued on the Closing Date;
(h) INSURANCE. Evidence satisfactory to the Agent that the Obligors
have adequate personal property, liability, business interruption and product
liability insurance with the Agent listed as loss payee, mortgagee and
additional insured (as applicable), pursuant to, as applicable, standard
mortgagee's and lender's loss payable clauses, together with true and correct
copies of all insurance policies maintained by each Obligor;
(i) TERMINATION STATEMENTS. A copy of all documents executed by any
lender, manufacturer, vendor and/or lender effecting a termination of any
financing statement or other document used to perfect a security interest in any
part of the Collateral, other than Liens permitted under this Agreement, in
proper form for filing in each jurisdiction wherein such financing statements or
other document shall have been filed;
(j) LIEN SEARCHES. Results of searches, in form and scope and as of
such dates as are satisfactory to the Agent, of UCC, tax, judgment and all other
liens which may have been filed against each Obligor with respect to any of the
Collateral;
(k) SECURITY AGREEMENTS. A Security Agreement in the form of, as
appropriate, Exhibit G-1 or G-2 hereto, duly executed by each Obligor;
(l) PATENT AND TRADEMARK SECURITY AGREEMENTS. A Patent, Trademark and
License Security Agreement in the form of Exhibit H hereto (each a "Patent
Agreement"), duly executed by each Obligor owning "Proprietary Collateral" as
defined in the Patent Agreement;
(m) FILINGS FOR PERFECTION. Evidence satisfactory to the Agent that the
Security Agreements, each of the other Security Documents, and any other
document required by law or reasonably requested by the Agent to be filed,
registered or recorded in order to create or continue, in favor of the Agent, a
first perfected Lien (except to the extent otherwise permitted by this
Agreement) on the Collateral, shall have been fully executed and delivered to
the Agent
(n) LANDLORD, WAREHOUSEMAN AND BAILEE WAIVERS. Such warehouseman's,
landlord's, mortgagee's and bailee's waivers as the Agent shall deem necessary;
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(o) CLOSING FEES. The Borrower shall have paid to each Bank a closing
fee in the amount set forth on Schedule 6.2 hereto;
(p) PURCHASE AGREEMENT. A true and complete copy of the Purchase
Agreement; and
(q) OTHER MATTERS. Such other documents, certificates and other matters
as the Agent may reasonably request of the Borrower and any of the Subsidiary
Guarantors.
ARTICLE 7
CONDITIONS TO ALL CREDIT EVENTS
On the date of each Credit Event, such Credit Event shall constitute a
representation and warranty by the Borrower that the following are and will be
true as of such date and after giving effect to such Credit Event, and each of
the following shall be true as a condition precedent thereto:
SECTION 7.1 REPRESENTATION BRINGDOWN. The representations and
warranties contained in Article 9 (other than the representation in the last
sentence of Section 9.5 in the case of any Credit Event involving only a Rate
Continuation or a Rate Conversion) are true and correct in all respects on and
as of the date of such Credit Event with the same effect as though made on and
as of such date, except to the extent such representations and warranties
expressly relate to an earlier date;
SECTION 7.2 COMPLIANCE WITH AGREEMENT. The Borrower and each of its
Subsidiaries shall be in compliance with all other terms and provisions set
forth herein and in each other Related Writing on its part to be observed or
performed, and at the time of and immediately after such Credit Event, no Event
of Default or Incipient Default shall have occurred and be continuing; and
SECTION 7.3 NO MATERIAL ADVERSE CHANGE. There has been no event since
the date hereof which would or might reasonably be expected to have a Material
Adverse Effect.
ARTICLE 8
COVENANTS
From and after the Closing Date through the commencement of the
Commitment Period and for so long thereafter as any of the Obligations remain
unpaid and outstanding, or any Bank shall have any Commitments outstanding, or
any Loans shall remain unpaid, the Borrower agrees to perform and observe and to
cause each Subsidiary to perform and observe, all of the following provisions:
SECTION 8.1 FINANCIAL STATEMENTS.
(a) QUARTERLY FINANCIAL STATEMENTS. The Borrower will furnish to each
Bank promptly, and in any case within forty-five (45) days after the end of each
of the first three (3) Fiscal Quarters of each of its Fiscal Years, unaudited
Consolidated and consolidating balance sheets of the Borrower and its
Subsidiaries as at the end of that period and the related unaudited Consolidated
and consolidating statements of income and cash flows, all prepared in
accordance with GAAP and otherwise in form and detail satisfactory to each Bank
and certified by a financial officer of the Borrower.
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(b) ANNUAL FINANCIAL STATEMENTS. The Borrower will furnish to each Bank
promptly, and in any case within ninety (90) days after the end of each of its
Fiscal Years, a complete annual audit report of the Borrower and its
Subsidiaries for that year, prepared on a Consolidated basis, in accordance with
generally accepted auditing procedures except as disclosed therein, and in form
and detail satisfactory to each Bank and certified by an independent public
accountant satisfactory to such Bank, and an unaudited consolidating balance
sheet of the Borrower and each of its Subsidiaries as at the end of year and the
related unaudited Consolidated and consolidating statements of income and cash
flows, all prepared in accordance with GAAP except as disclosed therein, and in
form and detail satisfactory to each Bank.
(c) OFFICER'S CERTIFICATES. The Borrower will furnish to each Bank,
promptly upon each Bank's written request, such other information about the
financial condition, properties and operations of the Borrower and its
Subsidiaries as such Bank may from time to time reasonably request, which
information shall be submitted in form and detail satisfactory to such Bank and
certified by a financial officer of the Borrower or the Subsidiary in question
and the Borrower will in any event furnish to each Bank the following:
(i) concurrently with the financial statements delivered in
connection with clause (a) and (b) above, a certificate of a
responsible financial officer of the Borrower, certifying that (A) to
his or her knowledge and belief, those financial statements fairly
present in all material respects the financial condition and results of
operations of the Borrower and its Subsidiaries (subject, in the case
of interim financial statements, to routine year-end audit adjustments)
and (B) no Incipient Default then exists or if any does, a brief
description thereof and of the Borrower's intentions in respect
thereof, and
(ii) within forty-five (45) days after the end of any Fiscal
Quarter and within ninety (90) days after the end of any Fiscal Year, a
certificate of a responsible financial officer of the Borrower, in the
form of Exhibit I hereto, setting forth the calculations necessary to
determine whether or not the Borrower is in compliance with Sections
8.16, 8.17, 8.18, 8.19 and 8.20.
(d) ANNUAL PROJECTIONS. No later than fifteen (15) days after approval
by the Borrower's board of directors, but in any event not later than sixty (60)
days after the beginning of each Fiscal Year, commencing with the Fiscal Year
beginning November 1, 2000, the Borrower shall deliver to the Agent an annual
Consolidated financial projection for such Fiscal Year on a Fiscal Quarterly
basis (prepared by the Borrower diligently and in good faith, but subject to the
uncertainties customarily inherent in any financial projections or
forward-looking statements), in form and substance reasonably satisfactory to
the Agent and containing, at a minimum, the Borrower's budget, operating profit,
balance sheet, cash flow projections and the principal assumptions upon which
the foregoing are based, all on a Consolidated basis.
(e) PUBLICLY-FILED INFORMATION. The Borrower will furnish to each Bank,
promptly when filed (in final form) or sent, copies of each registration
statement (other than on Form S-8) and annual, quarterly or current reports that
the Borrower or any of its Subsidiaries files with the SEC.
(f) FISCAL YEAR. The Borrower shall not change its Fiscal Year and
shall not permit any of its Subsidiaries to change its respective fiscal year.
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SECTION 8.2 NOTICE.
(a) NOTICE OF DEFAULT; MISREPRESENTATION. The Borrower shall give each
Bank prompt written notice as soon as possible, and in any event within three
(3) days after any responsible officer of the Borrower or any Subsidiary obtains
knowledge thereof, of (i) the occurrence of any Incipient Default or of any
development which in such officer's reasonable belief would or might reasonably
be expected to result in a Material Adverse Effect, setting forth the details of
such Incipient Default or such development and the action that the Borrower has
taken or proposes to take with respect thereto or (ii) any litigation or
governmental or regulatory proceeding against the Borrower or a Subsidiary which
is likely to have a Material Adverse Effect.
(b) NOTICE OF DEFAULT UNDER ERISA. If an Obligor shall receive written
notice from any ERISA Regulator or otherwise have actual knowledge that a
Default under ERISA exists with respect to any Plan, the Borrower shall notify
each Bank of the occurrence of such Default under ERISA within five (5) days
after receiving such notice or obtaining such knowledge and shall: (i) so long
as the Default under ERISA has not been corrected to the satisfaction of, or
waived in writing by, the party giving notice, the Borrower shall thereafter
treat as a current liability (if not otherwise so treated) all liability of the
Borrower or its Subsidiary that would arise by reason of the termination of or
withdrawal from such Plan if such Plan was then terminated, and (ii) within
forty-five (45) days of the receipt of such notice or obtaining such knowledge,
furnish to each Bank a pro forma Consolidated balance sheet of the Borrower as
at the end of the immediately preceding Fiscal Quarter, adjusted to reflect the
amount of the current liability referred to above, certified by the chief
financial officer of the Borrower.
(c) ENVIRONMENTAL REPORTING. The Borrower shall give each Bank prompt,
and in any event within ten (10) days of the date the Borrower or any of its
Subsidiaries receives or transmits, as the case may be, copies of all material
communications with any government or governmental agency relating to
Environmental Laws.
SECTION 8.3 INSURANCE. The Borrower shall, and shall cause each of its
Subsidiaries to, (a) keep itself and all of its insurable properties insured at
all times to such extent, by such insurers, and against such hazards and
liabilities as is required pursuant to the Security Agreement to which such
Obligor is a party, it being acknowledged that the insurance coverage in effect
as of the date hereof satisfies the standards contemplated by this Section 8.3;
and (b) promptly upon any Bank's written request, furnish to such Bank such
information about any such insurance as such Bank may from time to time
reasonably request, which information shall be prepared in form and detail
satisfactory to such Bank and certified by an appropriate officer of the
Borrower or the applicable Subsidiary.
SECTION 8.4 MONEY OBLIGATIONS. The Borrower shall pay, and shall cause
each of its Subsidiaries to pay, in full (a) prior in each case to the date when
penalties would attach, all taxes, assessments and governmental charges and
levies (except only those so long as and to the extent that the same shall be
contested in good faith by appropriate and timely proceedings) for which the
Borrower or its Subsidiaries may be or become liable or to which any or all of
the properties of the Borrower or its Subsidiaries may be or become subject, and
(b) all of its other obligations calling for the payment of money (except only
those so long as and to the extent that the same shall be contested in good
faith and except further trade accounts payable consistent with such Obligor's
past practice) before such payment becomes overdue.
SECTION 8.5 RECORDS. The Borrower shall, and shall cause each of its
Subsidiaries to, (a) at all times maintain true and complete records and books
of account and, without limiting the
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generality of the foregoing, maintain appropriate reserves for possible losses
and liabilities, all in accordance with GAAP and (b) at all reasonable times and
upon reasonable prior notice permit each Bank to examine its books and records
and to make excerpts therefrom and transcripts thereof; provided, however, that
if an Event of Default shall have occurred and be continuing, no such prior
notice shall be required.
SECTION 8.6 FRANCHISES. The Borrower shall preserve and maintain, and
shall cause each of its Subsidiaries to preserve and maintain, at all times its
corporate existence, rights and franchises; PROVIDED, HOWEVER, that this Section
8.6 shall not prevent any merger or consolidation permitted by Section 8.9
hereof.
SECTION 8.7 ERISA COMPLIANCE. The Borrower shall not incur, and shall
not permit any of its Subsidiaries to incur, any material accumulated funding
deficiency within the meaning of the ERISA and the regulations thereunder, or
any material liability to the Pension Benefit Guaranty Corporation, established
thereunder in connection with any Plan. The Borrower shall furnish, and shall
cause each of its Subsidiaries to furnish to the Banks (i) simultaneously with a
filing with the Pension Benefit Guaranty Corporation of a notice regarding any
Reportable Event and in any event within thirty (30) days after the Borrower or
any Subsidiary knows or has reason to know that any Reportable Event with
respect to any Plan has occurred, a statement of any responsible financial
officer of the Borrower or such Subsidiary setting forth details as to such
Reportable Event and the action which the Borrower or such Subsidiary proposes
to take with respect thereto, together with a copy of the notice of such
Reportable Event given to the Pension Benefit Guaranty Corporation if a copy of
such notice is available to the Borrower or such Subsidiary, (ii) promptly after
the filing thereof with the Internal Revenue Service, copies of each annual
report with respect to each Plan established or maintained by the Borrower or
any Subsidiary for each plan year, including (x) where required by Law, a
statement of assets and liabilities of such Plan as of the end of such plan year
and statements of changes in fund balance and in financial position, or a
statement of changes in net assets available for plan benefits, for such plan
year, certified by an independent public accountant of recognized standing
satisfactory to the Majority Banks and (y) an actuarial statement of such Plan
applicable to such plan year, certified by an enrolled actuary of recognized
standing satisfactory to the Majority Banks, and (iii) promptly after receipt
thereof a copy of any notice the Borrower or any Subsidiary or any member of the
Controlled Group may receive from the Pension Benefit Guaranty Corporation or
the Internal Revenue Service with respect to any Plan administered by the
Borrower or any Subsidiary; PROVIDED, HOWEVER, that this latter clause shall not
apply to notices of general application promulgated by the Pension Benefit
Guaranty Corporation or the Internal Revenue Service. The Borrower shall notify,
and shall cause each of its Subsidiaries to notify, the Banks promptly of any
taxes assessed, proposed to be assessed or which the Borrower or any Subsidiary
has reason to believe may be assessed against the Borrower or any Subsidiary by
the Internal Revenue Service with respect to any Plan and any filing which
relates to the withdrawal by the Borrower or any Subsidiary from a
Multi-Employer Plan. As used in this Section "material" means the measure of a
matter of significance which shall be determined as being an amount equal to or
greater than Five Million Dollars ($5,000,000).
SECTION 8.8 INVESTMENTS. The Borrower shall not, and shall not permit
any of its Subsidiaries to, (a) create or acquire any Subsidiary, provided,
however, that the Borrower or any Domestic Subsidiary may create or acquire a
Domestic Subsidiary after the Closing Date so long as such Domestic Subsidiary
shall simultaneously with such creation or acquisition, execute and deliver to
the Agent, for the benefit of the Agent and the Banks, a Guaranty of Payment,
Security Agreement, Patent Agreement and such other Security Documents and
Related Writings as the Agent or the Majority Banks may require), (b) make or
hold any investment in any common stocks, bonds or securities of any kind, (c)
be or become a party to any joint venture or other partnership
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(other than, in the case of the Borrower, its ownership of an interest in Shiloh
of Michigan, LLC), (d) make or keep outstanding any advance, loan or other
extension of credit to another Person (other than trade accounts receivable in
the ordinary course of business), (e) be or become a Guarantor of any kind or
(f) permit the sum of (1) the aggregate principal of all of loans and other
extensions of credit by the Borrower and any of its Subsidiaries to all
Subsidiaries which are not a Domestic Subsidiary, plus (2) the aggregate amount
of all contributions to the capital of, or other equity investment in, all
Subsidiaries which are not a Domestic Subsidiary by the Borrower and any of its
Subsidiaries, at any time to exceed Sixty Million Dollars ($60,000,000);
provided, however, that this Section 8.8 shall not apply to any of the following
permitted exceptions (the "Permitted Exceptions"): (i) any endorsement of a
check or other medium of payment for deposit or collection through normal
banking channels or any similar transaction in the normal course of business or
(ii) any investment in direct obligations of the United States of America or in
certificates of deposit issued by a member bank of the Federal Reserve System,
or (iii) any guaranty agreement executed in connection with this Agreement or
running in favor of the Agent and the Banks, or (iv) any investment in
commercial paper which at the time of such investment is assigned the highest
quality rating in accordance with the rating systems employed by either Moody's
Investors Service, Inc. or Standard & Poor's Corporation, or (v) except as
provided in clause (f) of this Section 8.8, any investment in the securities of
any existing Subsidiary or new Subsidiary created or acquired pursuant to clause
(a) of this Section 8.8, or (vi) except as provided in clause (f) of this
Section 8.8, advances, loans and other extensions of credit from the Borrower to
or from its Subsidiaries or among such Subsidiaries, and except further that
advances, loans and other extensions of credit to Shiloh of Michigan, LLC, by
any and all of the other Obligors shall not exceed Thirty-three Million Five
Hundred Thousand Dollars ($33,500,000) in the aggregate at any time, (vii) other
investments, not to exceed an aggregate principal amount of Ten Million Dollars
($10,000,000) at any one time, or (viii) guaranties by Subsidiary Guarantors of
the Borrower's indebtedness under the Qualifying Sub-Debt Issuance, or (ix) the
Borrower's or a Subsidiary Guarantor's investment in the securities of a
Subsidiary which is a "foreign sales corporation" (as that term is used and
defined in Internal Revenue Code Sections 921 through 927) so long as (A) the
aggregate of (1) the aggregate principal of all of loans and other extensions of
credit by the Borrower and any of its Subsidiaries to such Subsidiary, plus (2)
the aggregate amount of all contributions to the capital of, or other equity
investment in, such Subsidiary does not exceed Ten Thousand Dollars ($10,000),
(B) the aggregate value of its assets does not exceed One Hundred Thousand
Dollars ($100,000) at any time, and (C) either (1) such Subsidiary is not the
obligee under any Receivable in respect of products or other inventory
manufactured, assembled, produced or sold by any other Subsidiary and is never
in receipt or possession of any proceeds thereof, or (2) if it is such an
obligee or is in receipt or possession of any such proceeds, it has executed and
delivered to the Agent, for the benefit of the Agent and the Banks, a Guaranty
of Payment, Security Agreement, and such other Security Documents and Related
Writings as the Agent or the Majority Banks may require.
SECTION 8.9 ACQUISITIONS; BULK TRANSFERS. The Borrower shall not, and
shall not permit any of its Subsidiaries to,
(a) be a party to any consolidation, control share acquisition,
majority share acquisition or other business combination or merger,
other than a merger of a Subsidiary Guarantor into another Subsidiary
Guarantor, and then only after thirty (30) days' prior written notice
to the Agent and only if:
(i) such merging Subsidiary Guarantors (and any other Obligors
requested by the Agent or the Banks) have executed and
delivered to the Agent and the Banks such assumptions,
confirmations, Security Documents and other Related Writings
as the
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Agent or the Banks may require to protect their interests
under this Agreement, the Security Documents and the other
Related Writings,
(ii) after giving effect to such merger, (A) the Liens granted
pursuant to the Security Documents shall remain in full force
and effect and perfected (to at least the same extent and
priority as immediately preceding such merger), and (B) no
Event of Default or Incipient Default would exist, and
(iii) and on the date of such merger the Borrower shall have
delivered to the Agent a certificate of a responsible officer
of the Borrower confirming compliance with the conditions set
forth in clause (ii), above, in form and substance
satisfactory to the Agent, or
(b) purchase all or a substantial part of the outstanding securities or
assets of any corporation or other business enterprise, unless:
(i) as to the acquisition of the Automotive Group of MTD
pursuant to the Purchase Agreement, no Event of Default or
Incipient Default exists or would exist after giving effect to
such purchase, and
(ii) as to all other purchases:
(A) if the Senior Leverage Ratio is, as of the Fiscal
Quarter most recently ended, less than 3.50 to 1, no
Event of Default or Incipient Default exists or would
exist after giving effect to such purchase, and
(B) if the Senior Leverage Ratio is, as of the Fiscal
Quarter most recently ended, equal to or greater than
3.50 to 1, (1) the total purchase price and other
consideration for such purchase and all other
purchases by the Obligors after the Closing Date does
not exceed $50,000,000 in the aggregate, and (2) no
Event of Default or Incipient Default exists or would
exist after giving effect to such purchase;
provided, however, that as to any purchase permitted hereunder, the
Borrower shall have delivered to the Agent written notice of its or a
Subsidiary's intention to make such purchase at least thirty (30) days
prior to the consummation thereof (and thereafter shall have delivered
to the Agent such financial information, descriptions of property,
copies of documents and other information relating to such purchase as
the Agent or any Bank may request); and (x) prior to such consummation
the Obligors shall have executed and delivered to the Agent and the
Banks such Security Documents and other Related Writings as the Agent
or the Banks may require to cause the Liens of the Security Documents
to attach to and be perfected in respect of any of the assets so
acquired and to protect their interests under this Agreement, the
Security Documents and the other Related Writings, (y) on the date of
such consummation the Borrower shall have delivered to the Agent a
certificate of a responsible officer of the Borrower confirming
compliance with the conditions set forth in, as applicable, clause (i)
or clause (ii), above, in form and substance satisfactory to the Agent,
and (z) not later than sixty (60) days following such date of
consummation, financial statements of the Acquired Business, containing
a balance sheet as of such date of consummation and a statement of
income and cash flow for the twelve (12) month period immediately
preceding such date of consummation prepared, to the degree reasonably
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possible consistently with GAAP, by an independent public accountant
satisfactory to the Agent (an "Acquisition Financials"), or
(c) lease, sell or otherwise transfer any material assets (other than
such chattels, if any, as may have become obsolete or no longer useful
in the continuance of its present business) except in the normal course
of its present business; provided, however, that the Borrower or a
Subsidiary may enter into a so-called 'sale and lease-back' transaction
in respect of land and buildings and other improvements thereon owned
by such Obligor if:
(i) no Event of Default or Incipient Default exists or would
exist after giving effect to such transaction, and on the date
of such sale the Borrower shall have delivered to the Agent a
certificate of a responsible officer of the Borrower to that
effect, in form and substance satisfactory to the Agent,
(ii) the Borrower shall have delivered to the Agent written
notice of its or a Subsidiary's intention to enter into such a
transaction at least thirty (30) days prior to the
consummation thereof (and thereafter shall have delivered to
the Agent such financial information, descriptions of
property, copies of documents and other information relating
to such transaction as the Agent or any Bank may request); and
prior to such consummation the Obligors shall have executed
and delivered to the Agent and the Banks such Related Writings
as the Agent or the Banks may require to protect their
interests under this Agreement, the Security Documents and the
other Related Writings,
(iii) at least three (3) Banking Days prior to the
consummation of such transaction, the Borrower shall have
delivered to the Agent a Reduction Notice requesting the
reduction of the Total Commitment Amount by an amount equal to
the aggregate amount of purchase price or other consideration
which such Obligor will receive for its sale of such property,
(iv) prior to the consummation of such transaction, the
Borrower shall have satisfied all of the conditions for a
reduction of the Total Commitment Amount pursuant to Section
3.2(a) (including, without limitation, the making by the
Borrower of payments of principal of the Revolving Credit
Loans to the extent required thereunder), such that, effective
upon and simultaneously with such consummation, the Total
Commitment Amount shall be reduced by the amount specified in
such Reduction Notice, and
(v) the total purchase price and other consideration received
in such transaction and all other sale and lease-back
transactions by the Obligors occurring after the Closing Date
does not exceed Sixty Million Dollars ($60,000,000) in the
aggregate;
PROVIDED, that, notwithstanding anything to the contrary contained in the
foregoing, the Borrower shall not make, and shall not permit any of its
Subsidiaries to make, any Restricted Acquisition.
SECTION 8.10 LIENS. The Borrower shall not, and shall not permit any of
its Subsidiaries to, (a) acquire any property subject to any inventory
consignment, lease, land contract or other title retention contract (this
section shall not apply to true leases, consignments, tolling or other
possessory agreements in respect of the property of others whereby the Borrower
or a Subsidiary does not have legal or beneficial title to such property and
which, pursuant to GAAP, are not required to be capitalized), (b) sell or
otherwise transfer any Receivables, whether with or without
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recourse, or (c) suffer or permit any property now owned or hereafter acquired
by it to be or become encumbered by any mortgage, security interest, financing
statement or lien of any kind or nature; PROVIDED, that this Section shall not
apply to
(i) any lien for a tax, assessment or governmental charge or levy which
is not yet due and payable or which is being contested in good faith
and as to which the Borrower or such Subsidiary shall have made
appropriate reserves,
(ii) any lien securing only its workers' compensation, unemployment
insurance and similar obligations,
(iii) any mechanics, carrier's or similar common law or statutory lien
incurred in the normal course of business,
(iv) any transfer of a check or other medium of payment for deposit or
collection through normal banking channels or any similar transaction
in the normal course of business,
(v) subject to Section 8.11, Permitted Purchase Money Security
Interests,
(vi) any mortgage, security interest or lien (other than Permitted
Purchase Money Security Interests) securing only indebtedness incurred
to the Banks, other than Liens pursuant to the Security Documents, so
long as the aggregate unpaid principal balance of all such Indebtedness
secured by all such mortgages, security interests and liens does not at
any time exceed Five Million Dollars ($5,000,000) on a Consolidated
basis,
(vii) any financing statement perfecting only a security interest
permitted by this Section,
(viii) easements, restrictions, minor title irregularities and similar
matters having no adverse effect as a practical matter on the ownership
or use of any Borrower's or any Subsidiary's real property,
(ix) Liens pursuant to the Security Documents, or
(x) any other liens existing on the date hereof which are identified on
Schedule 8.10 hereto.
SECTION 8.11 LIMITATIONS ON INDEBTEDNESS. The Borrower shall not, and
shall not permit any of its Subsidiaries to, create, incur or suffer to exist
any Indebtedness of any kind; provided, however, that this Section 8.11 shall
not apply to:
(i) the Obligations of the Borrower under this Agreement and any
obligations of any Subsidiary Guarantor under any Guaranty of Payment
and any obligation of any Subsidiary under a Reimbursement Agreement in
respect of any Letter of Credit,
(ii) Indebtedness secured by Permitted Purchase Money Security
Interests, so long as the aggregate unpaid principal balance of all
such Indebtedness does not at any time exceed Five Million Dollars
($5,000,000) on a Consolidated basis,
(iii) the Indebtedness of the Borrower and the Subsidiary Guarantors
issued pursuant to a Qualifying Sub-Debt Issuance,
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(vi) any Indebtedness secured by liens or security interests permitted
under Section 8.10 (other than Permitted Purchase Money Security
Interests),
(vii) any other Indebtedness existing on the date hereof and listed on
Schedule 8.11 hereof, or
(viii) any other unsecured Indebtedness so long as the aggregate unpaid
principal balance of all such other Indebtedness does not at any time
exceed Ten Million Dollars ($10,000,000) on a Consolidated basis.
SECTION 8.12 COMPLIANCE WITH LAWS. The Borrower shall comply, and shall
cause each of its Subsidiaries to comply, in all respects with its Articles of
Incorporation or Certificate of Incorporation, as the case may be, and
Regulations or By-laws, as the case may be (or equivalent organization
documentation), and all applicable occupational safety and health Laws, federal
and state securities Laws, product safety Laws, Environmental Laws and every
other Law, treaty, rule, regulation, determination of an arbitrator, and every
lawful governmental order or determination if non-compliance with such Law or
order would have or might reasonably be expected to have a Material Adverse
Effect; provided, however, that this Section 8.12 shall not apply to any
noncompliance if and to the extent that the same is being contested in good
faith by timely and appropriate proceedings which are effective to stay
enforcement thereof and against which appropriate reserves have been
established.
SECTION 8.13 PROPERTIES. The Borrower shall maintain, and shall cause
each Subsidiary to maintain, all assets materially necessary to its continuing
operations in good working order and condition, ordinary wear and tear excepted.
SECTION 8.14 CHANGE IN NATURE OF BUSINESS, NAME. The Borrower shall not
make, nor permit any of its Subsidiaries to make, any material change in the
nature of its business as carried on at the date hereof; and the Borrower shall
not make, nor permit any of its Subsidiaries to make, any change in its
corporate or other entity name, except upon sixty (60) days' prior written
notice to the Agent.
SECTION 8.15 USE OF PROCEEDS. The Borrower shall use the proceeds of
the Loans and the Letters of Credit only for the purposes specified in Section
2.2.
SECTION 8.16 CONSOLIDATED NET WORTH. The Borrower will not suffer or
permit its Consolidated Net Worth (i) as of the end of any Fiscal Quarter in
Fiscal Year 1999, to be less than $155,696,000 and (ii) as of the end of any
Fiscal Quarter thereafter, to be less than an amount equal to (a) the Minimum
Net Worth for the Fiscal Year most recently ended, plus (b) the Fiscal Year
Increase for the Fiscal Year in which such Fiscal Quarter occurs.
SECTION 8.17 CONSOLIDATED INTEREST COVERAGE. The Borrower shall not
suffer or permit, as of the end of any Fiscal Quarter, the Consolidated Interest
Coverage Ratio to be less than:
(i) for the Fiscal Quarter ending July 31, 1999, 2.75 to 1,
(ii) for any Fiscal Quarter ending during the period October
31, 1999 through and including July 31, 2000, 3.00 to
1, and
(iii) for any Fiscal Quarter ending thereafter, 3.50 to 1.
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SECTION 8.18 SENIOR LEVERAGE RATIO. (a) If a Qualifying Sub-Debt
Issuance has not occurred, the Borrower shall not suffer or permit the Senior
Leverage Ratio as of the end of any Fiscal Quarter to be greater than:
(i) for the Fiscal Quarter ending July 31, 1999, 4.25 to 1,
(ii) for any Fiscal Quarter ending during the period
October 31, 1999 through and including July 31, 2000,
3.75 to 1, and
(iii) for any Fiscal Quarter ending thereafter, 3.25 to 1.
(b) If a Qualifying Sub-Debt Issuance has occurred, the Borrower shall
not suffer or permit the Senior Leverage Ratio as of the end of any Fiscal
Quarter to be greater than 3.00 to 1.
SECTION 8.19 TOTAL LEVERAGE RATIO. (a) If a Qualifying Sub-Debt
Issuance has not occurred, the Borrower shall not suffer or permit the Total
Leverage Ratio as of the end of any Fiscal Quarter to be greater than 4.25 to 1;
and (b) if a Qualifying Sub-Debt Issuance has occurred, the Borrower shall not
suffer or permit the Total Leverage Ratio as of the end of any Fiscal Quarter to
be greater than 4.50 to 1.
SECTION 8.20 CAPITAL EXPENDITURES. The Borrower shall not, during the
twelve (12) month period immediately following the end of any Fiscal Quarter as
of which the Senior Leverage Ratio is equal to or greater than 3.50 to 1, permit
Capital Expenditures to exceed Fifty Million Dollars ($50,000,000), exclusive of
sums expended by the Borrower to purchase MTD's Automotive Group pursuant to the
Purchase Agreement.
SECTION 8.21 YEAR 2000 COMPATIBILITY. The Obligors shall take all
action necessary to assure that their computer based systems are able to operate
and effectively process data including dates on and after January 1, 2000. The
Borrower shall provide to the Agent written assurance acceptable to the Agent
that such systems are Year 2000 compliant on or before the Closing Date. The
Borrower shall (i) promptly and in no event later than September 30, 1999, take
all action necessary to ensure that all computer based systems of each Obligor
are capable of the following: (a) handling date information involving all and
any dates before, during and/or after January 1, 2000, including accepting
input, providing output and performing date calculations in whole or in part;
(b) operating, accurately without interruption on and in respect of any and all
dates before, during and/or after January 1, 2000, and without any change in
performance; (c) responding to and processing two digit year input without
creating any ambiguity as to the century; and (d) storing and providing date
input information without creating any ambiguity as to the century; and (ii)
promptly and in no event later than October 30, 1999, certify to the Agent that
each Obligor has inquired of each of its vendors, suppliers and customers
whether they are capable of (a) through (d) above, where noncompliance could
have a Material Adverse Effect.
SECTION 8.22 DISTRIBUTIONS. The Borrower shall not declare or pay any
dividend or other Distribution in cash, property or obligations (other than in
shares of capital stock of the Borrower or in options, warrants or other rights
to acquire any such capital stock or in other securities convertible into any
such capital stock) on any shares of capital stock of the Borrower of any class;
and the Borrower shall not purchase, redeem or otherwise acquire for any
consideration any shares of capital stock of the Borrower of any class or any
option, warrant or other right to acquire any such capital stock.
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SECTION 8.23 TRANSACTIONS WITH AFFILIATES. The Borrower will not, and
will not permit any Subsidiary to, enter into any transaction or series of
transactions with any Affiliate other than in the ordinary course of business of
and pursuant to the reasonable requirements of the Borrower's or such
Subsidiary's business and upon fair and reasonable terms no less favorable to
the Borrower or such Subsidiary than would obtain in a comparable arm's-length
transaction with a person other than an Affiliate. Without limiting the
generality of the foregoing, the Borrower shall not enter into any transaction
which would have the effect of (i) imposing any Lien on any of its property or
assets (or any property or assets of any of its Subsidiaries) to secure any
indebtedness owed by MTD (or any of its Subsidiaries or affiliates) or otherwise
for the benefit of MTD (or any of its Subsidiaries or affiliates); (ii) become a
Guarantor of any Indebtedness of MTD (or any of its Subsidiaries or affiliates);
or (iii) making any intercompany advance to or for the benefit of MTD (or any of
its Subsidiaries or affiliates).
SECTION 8.24 CHANGE IN NATURE OF BUSINESS. The Borrower shall not, and
shall not permit any of its Subsidiaries to, make any material change in the
nature of its business as carried on at the date hereof.
SECTION 8.25 CHARTER AMENDMENTS. The Borrower shall not, and shall not
permit any of its Subsidiaries to, amend, as the case may be, its Articles of
Incorporation, Articles of Organization, Bylaws or Operating Agreement (or other
constitutive documents howsoever styled), (i) except as required by applicable
Law, or (ii) if not required by applicable Law, except for such amendments as
can reasonably be expected not to cause a Material Adverse Effect; provided that
in all instances, the Borrower shall give to the Agent five (5) days prior
written notice thereof.
SECTION 8.26 OTHER GOOD STANDING CERTIFICATES; NON-OHIO OPINIONS. The
Borrower shall deliver to the Agent no later than (i) sixty (60) days after the
Closing Date, a certificate of good standing (or equivalent certificate
otherwise named) for each Subsidiary which is not a Domestic Subsidiary,
certified by the office of the official of the nation, state, or province (or
other appropriate political subdivision) of incorporation or formation thereof,
and certificates of qualification to transact business as a foreign corporation
or other entity in every other jurisdiction where such Subsidiary's failure so
to qualify could have a Material Adverse Effect and (ii) thirty (30) days after
the Closing Date, legal opinions of the Borrower's counsel in Georgia and
Michigan, substantively equivalent to forms of opinion heretofore delivered to
the Borrower by the Agent and otherwise in form and substance satisfactory to
the Agent.
SECTION 8.27 SUBORDINATED INDEBTEDNESS.
(a) (i) No Obligor shall, in any manner, make (or give notice in
respect of) any voluntary or optional payment or prepayment on, or redemption or
acquisition for value of, or redeem, defease or otherwise satisfy prior to the
scheduled maturity of, its Subordinated Indebtedness (including, without
limitation, under the Qualifying Sub-Debt Issuance); and (ii) no Obligor shall
directly or indirectly, purchase or otherwise acquire any of its Subordinated
Indebtedness (including, without limitation, under the Qualifying Sub-Debt
Issuance), unless (A) no Event of Default or Incipient Default then exists or
would exist after giving effect to any such action described in clause (i) or
(ii), (B) any such action described in clause (i) or (ii) is effected solely
with the proceeds of the sale of the Borrower's common stock, preferred stock,
or options or warrants therefor, provided, however, that nothing in this clause
(B) shall be construed to release or waive the Borrower's prepayment Obligations
under and pursuant to Section 3.3(c), (C) the Agent shall have received 30 days'
prior written notice thereof, and (D) the Borrower shall have delivered to the
Agent or any Bank such information, certificates and other materials as the
Agent or such Bank may reasonably request in connection therewith. No Obligor
shall make any payment on or in respect of the principal of or
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interest on Subordinated Indebtedness (including, without limitation, under the
Qualifying Sub-Debt Issuance), or take or fail to take any other action, in
violation of the subordination provisions applicable to such Subordinated
Indebtedness.
(b) No Obligor shall amend, supplement, modify or waive any of the
terms of any Subordinated Indebtedness or any instrument evidencing, guarantying
or otherwise governing such Subordinated Indebtedness (i) if the effect of any
such amendment, supplement, modification or waiver would be to (A) increase the
principal or interest payable on any of such Subordinated Indebtedness, or
change the date on which any of the same shall be and/or become due and payable,
(B) shorten the term of any of such Subordinated Indebtedness, (C) create
additional events of default under any of such documents, or impose any
obligation on any Obligor (whether consisting of affirmative or negative
covenants, or otherwise), the failure to comply with which would cause an event
of default under any of such documents, (D) create any additional, or modify any
existing, right or remedy available to the holder of such Subordinated Debt or
any indenture trustee of any indenture comprising part of the documents
evidencing, guarantying or otherwise governing such Subordinated Indebtedness
upon a default thereunder, or shorten any grace period or other period of delay
before a default thereunder shall be deemed to exist or before such holder or
trustee may exercise any right or remedy by virtue of any default, or (E) limit
or otherwise impair any provisions or agreements which subordinate the priority
of such Subordinated Indebtedness in favor of the Obligations (whether by
general description or specific reference) or which impose restrictions or
limitations on the right of the holder thereof to receive payments or exercise
remedies or otherwise modify terms of subordination approved by the Banks
pursuant to Section 1.1, and (ii) in any event, without delivering to the Agent
written notice of any such amendment, supplement, modification or waiver not
less than ten (10) Banking Days prior to its effectiveness, which notice shall
include a true and complete copy of any and all instruments effecting such
amendment, supplement, modification or waiver.
SECTION 8.28 FUTURE PLEDGE. Within thirty (30) days following the date,
if ever, on which the aggregate principal of all loans and other extensions of
credit by the Borrower and any of its Subsidiaries to all Subsidiaries which are
not a Domestic Subsidiary, plus the aggregate amount of all contributions by the
Borrower and any of its Subsidiaries to the capital of, or other equity
investment in, all Subsidiaries which are not a Domestic Subsidiary, exceed
Fifteen Million Dollars ($15,000,000) in the aggregate, the Obligor(s) owning
equity interests in such Subsidiaries which are not Domestic Subsidiaries shall
pledge to the Agent, for the benefit of the Banks and the Agent, shares of the
capital stock of each such Subsidiary representing sixty-five percent (65%) of
the equity in and voting power of such Subsidiary pursuant to a pledge and
security agreement in form and substance satisfactory to the Agent (each a
"Pledge Agreement") and shall deliver to the Agent the certificates representing
such capital stock and such blank powers as the Agent shall require; provided,
however, that so long as the requirements of sub-clauses (A), (B) and (C) of
clause (ix) of Section 8.8 are complied with, the stock of a "foreign sales
corporation" permitted thereunder shall not be subject to the pledge otherwise
required by this Section 8.28.
ARTICLE 9
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to each of the Banks as follows:
SECTION 9.1 EXISTENCE; SUBSIDIARIES.
(a) Each Obligor is a corporation or limited liability company, as the
case may be, duly organized and validly existing and in good standing under the
Laws of the state of its incorporation
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or organization and is duly qualified and authorized to do business wherever it
owns any real estate or personal property or transacts any substantial business
(except in jurisdictions in which failure to so qualify would not have a
Material Adverse Effect).
(b) Except as set forth on Schedule 9.1 hereto, (i) the Borrower has no
Subsidiaries, and (ii) no Subsidiary of the Borrower has any Subsidiary.
SECTION 9.2 POWER, AUTHORIZATION AND CONSENT. The execution, delivery
and performance of this Agreement, the Notes or any Guaranty of Payment by an
Obligor, and of all Related Writings to which any of them is party (a) are
within the Borrower's or such Subsidiary Guarantor's legal power and authority,
(b) have been duly authorized by all necessary or proper action of the Borrower
or Subsidiary Guarantor, (c) do not require the consent or approval of any
governmental body, agency, authority or any other Person which has not been
obtained and (d) will not violate (i) any provision of Law applicable to the
Borrower or Subsidiary Guarantor, (ii) any provision of the Borrower's or
Subsidiary Guarantor's, as the case may be, certificate or articles of
incorporation, by-laws or regulations, or operating agreement, or (iii) any
material agreement or material indenture by which the Borrower or Subsidiary
Guarantor or the property of the Borrower or Subsidiary Guarantor is bound,
except where such violation specified in this clause (iii) would not have a
Material Adverse Effect, or (e) will not result in the creation or imposition of
any lien or encumbrance on any property or assets of the Borrower or Subsidiary
Guarantor except as provided herein.
SECTION 9.3 LITIGATION; PROCEEDINGS. No action, suit, investigation or
proceeding is now pending or, to the knowledge of the Borrower, threatened,
against the Borrower or any Subsidiary, at Law, in equity or otherwise, or with
respect to this Agreement, any Guaranty of Payment or any Related Writing,
before any court, board, commission, agency or instrumentality of any federal,
state, local or foreign government or of any agency or subdivision thereof, or
before any arbitrator or panel of arbitrators which would or might reasonably be
expected to have a Material Adverse Effect.
SECTION 9.4 ERISA COMPLIANCE. No Obligor has incurred any material
accumulated funding deficiency within the meaning of the ERISA, and the
regulations thereunder. No Reportable Event has occurred with respect to any
Plan which may result in any material liability against any Obligor. The Pension
Benefit Guaranty Corporation, established under ERISA, has not asserted that any
Obligor has incurred any material liability in connection with any Plan. No Lien
has been attached and no person has, to the best of the Borrower's knowledge,
threatened to attach a lien on any property of any Obligor as a result of any
Obligor's failing to comply with ERISA or regulations.
SECTION 9.5 FINANCIAL CONDITION. The Consolidated financial statements
of the Borrower and its Subsidiaries for the Fiscal Year ending October 31,
1998, previously delivered to the Banks, are true and complete (including,
without limiting the generality of the foregoing, a disclosure of all material
contingent liabilities), have been prepared in accordance with GAAP applied on a
basis consistent with those used during their next preceding Fiscal Year (except
as noted therein) and fairly present their then financial condition and
operations for the Fiscal Year then ending. There has been no material change in
the Borrower's or any Subsidiary's financial condition, properties or business
since that date.
SECTION 9.6 SOLVENCY. Each Obligor has received consideration which is
the reasonable equivalent value of the obligations and liabilities that such
Obligor has incurred to the Banks. No Obligor is insolvent as defined by any
applicable state or federal Law, nor will any Obligor be rendered insolvent by
the execution and delivery of this Agreement or any Note or Guaranty to the
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Banks. No Obligor is engaged or about to engage in any business or transaction
for which the assets retained by it shall be an unreasonably small capital,
taking into consideration the obligations to the Banks incurred hereunder. No
Obligor intends to, nor does it believe that it will, incur debts beyond its
ability to pay them as they mature.
SECTION 9.7 DEFAULT. No Incipient Default exists hereunder, nor will
any begin to exist immediately after the execution and delivery hereof.
SECTION 9.8 LAWFUL OPERATIONS. The operations of the Borrower, the
operations of each of the Subsidiaries and all Obligor Property are in full
compliance as of the Closing Date with all requirements imposed by Law or
regulation, whether federal, state or local including (without limitation) all
Environmental Laws, occupational safety and health Laws and zoning ordinances
except where the noncompliance with any such Laws could not be reasonably
expected to result in a Material Adverse Effect; PROVIDED, HOWEVER, that this
Section 9.8 shall not apply to any noncompliance if and to the extent that the
same is being contested in good faith by timely and appropriate proceedings
which are effective to stay enforcement thereof and against which appropriate
reserves have been established.
SECTION 9.9 INVESTMENT COMPANY ACT STATUS. No Obligor 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. section 80(a)(1), et seq.).
SECTION 9.10 REGULATION G/REGULATION U/REGULATION X COMPLIANCE. No
Obligor is engaged principally, or as one of its important activities, in the
business of extending credit for the purpose of purchasing or carrying "margin
stock", (as defined by Regulation U of the Board of Governors of the Federal
Reserve System of the United States (as amended from time to time)) and all
official rulings and interpretations thereunder or thereof and at no time shall
more than 25% of the value of the assets of the Borrower and its Consolidated
Subsidiaries that are subject to any "arrangement" (as such term is used in
section 221.2(g) of Regulation U) be represented by "margin stock". No part of
the proceeds of any Loan will be used, whether directly or indirectly, and
whether immediately, incidentally or ultimately, (i) to purchase or to extend
credit to others for the purpose of purchasing "margin stock" or to carry or to
extend credit to others for the purpose of carrying stock which will be "margin
stock" after giving effect to the Loans or (ii) for any purpose that entails a
violation of, or is inconsistent with, the provisions of the Regulations of the
Board of Governors of the Federal Reserve System of the United States, including
Regulation G, U or X.
SECTION 9.11 LIEN PRIORITY. From and after the Closing Date, by reason
of the filing of financing statements, Patent Agreements and termination
statements, if any, in all requisite governmental offices, this Agreement and
the Security Documents to which each Obligor is a party will create and
constitute a valid and perfected first priority security interest (except as
permitted by this Agreement) in and Lien on that portion of the Collateral which
can be perfected by such filing, which security interest will be enforceable
against such Obligor and all third parties as security for payment of all
Obligations.
SECTION 9.12 LOCATION OF COLLATERAL. All of the locations of the
Obligors and of the Collateral are set forth in Schedule 9.12 hereto; and the
chief executive offices of each Obligor are specified thereon. Other than as
otherwise set forth in Schedule 9.12 hereto, no Obligor keeps any Collateral
owned by it on any property not owned in fee simple by such Obligor.
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SECTION 9.13 TITLE TO PROPERTIES. Each Obligor has good and marketable
title to all assets reflected in such Obligor's most recent financial statements
referred to in Section 9.5, except for assets disposed of in the ordinary course
of business since the date of such financial statements. All such assets are
free and clear of any mortgage, security interest or other Lien of any kind,
other than any Liens in favor of the Agent or Liens permitted by this Agreement.
SECTION 9.14 INTELLECTUAL PROPERTY. Each Obligor owns or has the legal
and valid right to use all intellectual property necessary for the operation of
its business as presently conducted, free from any Lien not permitted under
Section 8.10 and free of any restrictions material to the operation of its
business as presently conducted; and all patents, trademarks, copyrights and
other intellectual property of each Obligor is fully described in Schedule 9.14.
SECTION 9.15 INSURANCE. The Borrower has delivered to the Agent true
and correct copies of the insurance policies maintained by the Obligors, and
such policies comply with the requirements of the Security Agreements.
SECTION 9.16 FULL DISCLOSURE. No information, exhibits or reports
furnished by the Borrower or any Subsidiary to the Agent or any Bank omits to
state any fact necessary to make the statements contained therein not materially
misleading in light of the circumstances and purposes for which such information
was provided. The Borrower and each of the Subsidiaries have provided all
information requested by the Agent or any Bank and all such information is
complete and accurate in all material respects.
ARTICLE 10
EVENTS OF DEFAULT
Each of the following shall constitute an event of default (an "Event
of Default") hereunder:
SECTION 10.1 PAYMENTS. If the principal of or interest on any Note, any
Letter of Credit reimbursement obligation not reimbursed pursuant to Section
5.1, any reimbursement, payment or amount due the Agent or any of the Banks, any
amendment fee or administrative fee imposed by any of the Banks, any Letter of
Credit fees or any Commitment Fee, the Risk Participation Fee or other fee or
amount owing to the Banks or the Agent under this Agreement or under any Related
Writing shall not be paid in full punctually when due and payable and shall, in
the case of the principal of or interest on any Note, remain unpaid for a period
of five (5) consecutive days.
SECTION 10.2 COVENANTS. If any Obligor shall fail or omit to perform
and observe (a) any agreement or other provision (other than those referred to
in Section 10.1 hereof or in either of clause (b) or clause (c) of this Section
10.2) contained or referred to in this Agreement or any Related Writing that is
on the Borrower's or such Subsidiary Guarantor's part to be complied with and
such Incipient Default shall not have been fully corrected within thirty (30)
days after the giving of written notice thereof to the Borrower by Agent or any
Bank that the specified Incipient Default is to be remedied and, in respect of a
Incipient Default under Section 8.12, in addition to such thirty (30) day
period, within such additional period of time during which the Borrower
diligently undertakes appropriate actions to cause the Borrower to remedy the
Incipient Default (but only if and to the extent that such additional period of
time does not cause a Material Adverse Effect), or for which the Borrower makes
an adequate reserve (in accordance with GAAP) on its financial statements; or
(b) any agreement or other provision contained in any or all of Sections 8.5,
8.13 and 8.21 hereof and such Incipient Default shall not have been fully
corrected within fifteen (15) days after the occurrence of such Incipient
Default; or (c) any agreement or provision contained in Article 8 hereof, other
than those specifically identified in clauses (a) and (b), above.
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SECTION 10.3 WARRANTIES. If any representation, warranty or statement
made in or pursuant to this Agreement or any Related Writing or any other
material information furnished by the Borrower or any Subsidiary to the Banks or
any thereof or any other holder of any Note shall be false or erroneous in any
respect when furnished or made or deemed furnished or made hereunder.
SECTION 10.4 CROSS DEFAULT. If the Borrower or any Subsidiary, after
any applicable notice or grace period or both, (i) defaults in the payment of
any principal or interest due and owing upon any other Indebtedness or
Indebtednesses (including, without limitation, under the Qualifying Sub-Debt
Issuance) in excess of Five Million Dollars ($5,000,000) in aggregate principal
amount or (ii) defaults in the performance of any other agreement, term or
condition contained in any promissory note, agreement or other instrument under
which such Indebtedness or Indebtednesses in excess of $5,000,000 in the
aggregate are evidenced, created, constituted, secured or governed which default
causes, or permits the holder(s) of such Indebtedness or Indebtednesses the
right to cause, the acceleration of the maturity thereof.
SECTION 10.5 CHANGE OF CONTROL. If, after the Closing Date, (x) any
"person" or "group" shall become the "beneficial owner" (as those terms are
respectively used in the Securities and Exchange Act of 1934, as amended, and
the rules and regulations thereunder) of more than forty percent (40%) of the
outstanding voting stock of the Borrower or any Subsidiary or shall otherwise
acquire the power (whether by contract, by proxy or otherwise) to elect a
majority of the Borrower's or such Subsidiary's Board of Directors, (y) the
holders of the voting equity interests in any Obligor shall approve a plan of
complete liquidation of such Obligor or an agreement or agreements for the sale
or disposition by such Obligor of all or substantially all of such Obligor's
assets, and/or (z) during any twelve (12) month period, individuals who were
directors of the Borrower at the beginning of such period or were elected to the
Board of Directors of the Borrower with the approval of a majority of such
directors shall cease to constitute a majority of the Board of Directors;
provided, however, that it shall not be deemed to be an Event of Default under
this Section 10.5, if at any time hereafter MTD's beneficial ownership of the
Borrower's voting stock is less than 40%, but greater than 30%, of the
Borrower's issued and outstanding voting stock, and thereafter MTD's ownership
thereof increases so as again to exceed 40%.
SECTION 10.6 TERMINATION OF PLAN OR CREATION OF WITHDRAWAL LIABILITY.
If (a) any Reportable Event occurs and the Majority Banks, in their sole
determination, deem such Reportable Event to constitute grounds (i) for the
termination of any Plan by the Pension Benefit Guaranty Corporation or (ii) for
the appointment by the appropriate United States district court of a trustee to
administer any Plan and such Reportable Event shall not have been fully
corrected or remedied to the full satisfaction of the Majority Banks within
thirty (30) days after giving of written notice of such determination to the
Borrower by any Bank or (b) any Plan shall be terminated within the meaning of
Title IV of ERISA (other than a Standard Termination, as that term is defined in
Section 4041(b) of ERISA), or (c) a trustee shall be appointed by the
appropriate United States district court to administer any Plan, or (d) the
Pension Benefit Guaranty Corporation shall institute proceedings to terminate
any Plan or to appoint a trustee to administer any Plan or (e) there occurs a
withdrawal by the Borrower or any Subsidiary from a Multi-Employer Plan which
results or may result in a withdrawal liability in an amount equal to or greater
than Five Million Dollars ($5,000,000).
SECTION 10.7 VALIDITY OF AGREEMENTS. If this Agreement, the Notes, any
Guaranty of Payment, any Reimbursement Agreement, any Security Agreement, any
Patent Agreement, or any other Related Writing shall for any reason cease to be,
or be asserted by the Borrower, any Subsidiary Guarantor or any other party
intended to be bound thereby (other than a Bank or the Agent) not to be, a
legal, valid and binding obligation of any party thereto (other than the Agent,
the Letter of Credit Bank or any Bank) enforceable in accordance with its terms.
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SECTION 10.8 SOLVENCY OF SUBSIDIARIES. If any Subsidiary shall (a)
generally not pay its debts as such debts become due, or (b) discontinue
business or make a general assignment for the benefit of creditors, or (c) apply
for or consent to the appointment of a receiver, a custodian, a trustee, an
interim trustee or liquidator of itself or all or a substantial part of its
assets, or (d) be adjudicated a debtor or have entered against it an order for
relief under Title 11 of the United States Code, as the same may be amended from
time to time, or (e) file a voluntary petition in bankruptcy or file a petition
or an answer seeking reorganization or an arrangement with creditors or seeking
to take advantage of any other law (whether federal or state or of a foreign
jurisdiction) relating to relief of debtors, or admit (by answer, by default or
otherwise) the material allegations of a petition filed against it in any
bankruptcy, reorganization, insolvency or other proceeding (whether federal or
state) relating to relief of debtors, or (f) suffer or permit to continue
unstayed and in effect for thirty (30) consecutive days any judgment, decree or
order, entered by a court of competent jurisdiction, which approves a petition
seeking its reorganization or appoints a receiver, custodian, trustee, interim
trustee or liquidator of itself or of all or a substantial part of its assets,
or (g) take or omit to take any other action in order thereby to effect any of
the foregoing.
SECTION 10.9 THE BORROWER'S SOLVENCY. If the Borrower shall (a)
discontinue business, or (b) generally not pay its debts as such debts become
due, or (c) make a general assignment for the benefit of creditors, or (d) apply
for or consent to the appointment of a receiver, a custodian, a trustee, an
interim trustee or liquidator of all or a substantial part of its assets, or (e)
be adjudicated a debtor or have entered against it an order for relief under
Title 11 of the United States Code, as the same may be amended from time to
time, or (f) file a voluntary petition in bankruptcy or file a petition or an
answer seeking reorganization or an arrangement with creditors or seeking to
take advantage of any other Law (whether federal or state) relating to relief of
debtors, or admit by any answer, by default or otherwise) the material
allegations of a petition filed against it in any bankruptcy, reorganization,
insolvency or other proceeding (whether federal or state) relating to relief of
debtors, or (g) suffer or permit to continue unstayed and in effect for thirty
(30) consecutive days any judgment, decree or order entered by a court or
governmental commission of competent jurisdiction, which assumes custody or
control of the Borrower approves a petition seeking reorganization of the
Borrower or any other judicial modification of the rights of its creditors, or
appoints a receiver, custodian, trustee, interim trustee or liquidator for the
Borrower or of all or a substantial part of its assets, or (h) take, or omit to
take, any action in order thereby to effect any of the foregoing.
SECTION 10.10 JUDGMENTS. If (a) one or more judgments for the payment
of money in an aggregate amount in excess of One Million Dollars
($1,000,000)(unless , in the determination of the Agent, the Borrower shall have
made adequate provision for the prompt payment thereof) shall be rendered
against the Borrower, any Subsidiary or any combination thereof, and the same
shall remain undischarged for a period of 30 consecutive days during which
execution shall not be effectively stayed, or (b) any action shall be legally
taken by a judgment creditor to levy upon assets or properties of the Borrower
or any Subsidiary to enforce any judgment.
ARTICLE 11
REMEDIES UPON DEFAULT
Notwithstanding any contrary provision or inference herein or elsewhere,
SECTION 11.1 OPTIONAL DEFAULTS. If any Event of Default referred to in
any of Sections 10.1 through and including 10.7, in clause (a) of Section 10.8,
in clause (b) of Section 10.9 or in
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Section 10.10 shall occur, the Majority Banks, shall have the right in their
discretion, (i) by directing the Agent, on behalf of the Banks, to give written
notice to the Borrower, to:
(1) terminate the Commitments and the credits hereby established, if
not theretofore terminated, and forthwith upon such election the obligations of
the Banks, and each thereof, to make any further loan or loans hereunder and to
risk participate in Letters of Credit hereunder or otherwise effect any Credit
Event, and the obligation of the Letter of Credit Bank to issue Letters of
Credit, immediately shall be terminated, and/or
(2) accelerate the maturity of all of the Borrower's Obligations to the
Banks and the Agent (if not already due and payable), whereupon all of the
Borrower's Obligations to the Banks and the Agent shall become and (including
but not limited to the Notes and all reimbursement obligations under Letters of
Credit) thereafter be immediately due and payable in full without any
presentment or demand and without any further or other notice of any kind, all
of which are hereby waived by the Borrower,
and (ii) to exercise (or cause the Agent to exercise) such other rights and
remedies as may be available hereunder, under the Security Documents, at law or
in equity.
SECTION 11.2 AUTOMATIC DEFAULTS. If any Event of Default referred to in
Section 10.8 (other than clause (a) thereof) or Section 10.9 (other than clause
(b) thereof) shall occur:
(1) all of the Commitments and the credits hereby established shall
automatically and forthwith terminate, if not theretofore terminated, and no
Bank thereafter shall be under any obligation to grant any further loan or loans
hereunder or otherwise effect any Credit Event, nor shall the Letter of Credit
Bank be under any obligation to issue any Letter of Credit hereunder, and
(2) the principal of and interest on any Notes and all reimbursement
obligations with respect to Letters of Credit then outstanding, all of the
Borrower's other Bank Debt, and the Agent shall thereupon become and thereafter
be immediately due and payable in full (if not already due and payable), all
without any presentment, demand or notice of any kind, which are hereby waived
by the Borrower, and
(3) subject to any applicable automatic stay or other restriction of
Law, the Agent and the Banks may exercise such other rights and remedies as may
be available hereunder, under the Security Documents, at law or in equity.
SECTION 11.3 OFFSETS. If there shall occur or exist any Incipient
Default or if the maturity of the Notes or any Letter of Credit is accelerated
pursuant to Section 11.1 or 11.2, each Bank shall have the right at any time to
set off against, and to appropriate and apply toward the payment of, any and all
Debt then owing by the Borrower to that Bank (including, without limitation, any
participation purchased or to be purchased pursuant to Section 11.4), whether or
not the same shall then have matured, any and all deposit balances and all other
indebtedness then held or owing by that Bank to or for the credit or account of
the Borrower, all without notice to or demand upon the Borrower or any other
person, all such notices and demands being hereby expressly waived by the
Borrower.
SECTION 11.4 EQUALIZATION OF ADVANTAGE. Subject to the provisions of
Section 11.4(b), below, each Bank agrees with the other Banks that if it at any
time shall obtain any Advantage over the other Banks in respect of the
Borrower's Obligations to the Banks (except under Section 3.7, 3.8, 3.9 or
14.4), it will purchase from the other Banks, for cash and at par, such
additional participation
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in the Borrower's Obligations to the Banks as shall be necessary to nullify the
Advantage. If any Advantage so resulting in the purchase of an additional
participation shall be recovered in whole or in part from the Bank receiving the
Advantage, each such purchase shall be rescinded, and the purchase price
restored (but without interest unless the Bank receiving the Advantage is
required to pay interest on the Advantage to the person recovering the Advantage
from such Bank) ratably to the extent of the recovery. Each Bank further agrees
with the other Banks that if it at any time shall receive any payment for or on
behalf of the Borrower on any indebtedness owing by the Borrower to that Bank by
reason of offset of any deposit or other indebtedness, it will apply such
payment first to any and all indebtedness owing by the Borrower to that Bank
pursuant to this Agreement (including, without limitation, any participation
purchased or to be purchased pursuant to this Section 11.4) until the Borrower's
Obligations have been paid in full. The Borrower agrees that any Bank so
purchasing a participation from the other Banks pursuant to this Section may
exercise all its rights of payment (including the right of set-off) with respect
to such participation as fully as if such Bank were a direct creditor of the
Borrower in the amount of such participation.
SECTION 11.5 APPLICATION OF COLLATERAL AND OTHER REMEDY PROCEEDS. All
monies received by the Agent and the Banks from the exercise of remedies
hereunder or under the Security Documents and the other Related Writings or
under any other documents relating to this Agreement or at Law shall, unless
otherwise required by the terms of the other Related Writings or by applicable
Law, be applied as follows:
FIRST, to the payment of all expenses (to the extent not paid by the
Borrower) incurred by the Agent or the Banks in connection with the exercise of
such remedies, including, without limitation, all reasonable costs and expenses
of collection, attorneys' fees, court costs and any foreclosure expenses;
SECOND, to the payment of interest then accrued on the outstanding
Loans;
THIRD, to the payment of any fees then accrued and payable to the
Banks, the Letter of Credit Bank or the Agent under this Agreement in respect of
the Loans or the Letters of Credit outstanding;
FOURTH, to the payment of the principal balance then owing on the
outstanding Loans and the stated amounts of the Letters of Credit then
outstanding (to be held and applied by the Agent as security for the
Reimbursement Agreement Obligations in respect thereof);
FIFTH, to the payment of all other amounts owed by the Obligors to the
Agent or the Banks under this Agreement or any Related Writing; and
FINALLY, any remaining surplus after all of the Obligations have been
paid in full, to the Borrower or to whomsoever shall be lawfully entitled
thereto.
ARTICLE 12
THE AGENT
SECTION 12.1 THE AGENT. Each Bank irrevocably appoints KeyBank to be
its Agent with full authority to take such actions, and to exercise such powers,
on behalf of the Banks in respect of this Agreement and the Related Writings as
are therein respectively delegated to the Agent or as are reasonably incidental
to those delegated powers. KeyBank in such capacity shall be deemed to be an
independent contractor of the Banks. Each of the Banks irrevocably appoints
KeyBank to be its Agent with full authority to take such actions, and to
exercise such powers, on behalf of the Banks
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in respect of this Agreement and the Related Writings as are therein
respectively delegated to the Agent pursuant to Section 12.4 or as are
reasonably incidental to those delegated powers. KeyBank in such capacity shall
be deemed to be an independent contractor of the Banks. For the purposes of this
Article 12, "Bank" shall include any Bank.
SECTION 12.2 NATURE OF APPOINTMENT. The Agent shall have no fiduciary
relationship with any Bank by reason of this Agreement and the Related Writings.
The Agent shall not have any duty or responsibility whatsoever to any Bank
except those expressly set forth in this Agreement and the Related Writings.
Without limiting the generality of the foregoing, each Bank acknowledges that
the Agent is acting as such solely as a convenience to the Banks and not as a
manager of the commitments or the Obligations evidenced by the Notes. This
Article 12 does not confer any rights upon the Borrower or anyone else (except
the Banks), whether as a third party beneficiary or otherwise.
SECTION 12.3 KEYBANK AS A BANK; OTHER TRANSACTIONS. KeyBank's rights as
a Bank under this Agreement and the Related Writings shall not be affected by
its serving as the Agent. KeyBank and its affiliates may generally transact any
banking, financial, trust, advisory or other business with the Borrower or its
Subsidiaries (including, without limitation, the acceptance of deposits, the
extension of credit and the acceptance of fiduciary appointments) without notice
to the Banks, without accounting to the Banks, and without prejudice to
KeyBank's rights as a Bank under this Agreement and the Related Writings except
as may be expressly required under this Agreement.
SECTION 12.4 INSTRUCTIONS FROM BANKS. The Agent shall not be required
to exercise any discretion or take any action as to matters not expressly
provided for by this Agreement and the Related Writings (including, without
limitation, collection and enforcement actions in respect of any Obligations
under the Notes or this Agreement and any collateral therefor) EXCEPT that the
Agent shall take such action (or omit to take such action) other than actions
referred to in Section 14.1, as may be reasonably requested of it in writing by
the Majority Banks with instructions and which actions and omissions shall be
binding upon all the Banks; PROVIDED, HOWEVER, that the Agent shall not be
required to act (or omit any act) if, in its judgment, any such action or
omission might expose the Agent to personal liability or might be contrary to
this Agreement, any Related Writing or any applicable Law.
SECTION 12.5 BANK'S DILIGENCE. Each Bank (a) represents and warrants
that it has made its decision to enter into this Agreement and the Related
Writings and (b) agrees that it will make its own decision as to taking or not
taking future actions in respect of this Agreement and the Related Writings; in
each case without reliance on the Agent or any other Bank and on the basis of
its independent credit analysis and its independent examination of and inquiry
into such documents and other matters as it deems relevant and material.
SECTION 12.6 NO IMPLIED REPRESENTATIONS. The Agent shall not be liable
for any representation, warranty, agreement or obligation of any kind of any
other party to this Agreement or anyone else, whether made or implied by the
Borrower or any Subsidiary in this Agreement or any Related Writing or by a Bank
in any notice or other communication or by anyone else or otherwise.
SECTION 12.7 SUB-AGENTS. The Agent may employ agents and shall not be
liable (except as to money or property received by it or its agents) for any
negligence or misconduct of any such agent selected by it with reasonable care.
The Agent may consult with legal counsel, certified public accountants and other
experts of its choosing (including, without limitation, KeyBank's salaried
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employees or any otherwise not independent) and shall not be liable for any
action or inaction taken or suffered in good faith by it in accordance with the
advice of any such counsel, accountants or other experts which shall have been
selected by it with reasonable care.
SECTION 12.8 AGENT'S DILIGENCE. The Agent shall not be required (a) to
keep itself informed as to anyone's compliance with any provision of this
Agreement or any Related Writing, (b) to make any inquiry into the properties,
financial condition or operation of the Borrower or any of its Subsidiaries or
any other matter relating to this Agreement or any Related Writing, (c) to
report to any Bank any information (other than which this Agreement or any
Related Writing expressly requires to be so reported) that the Agent or any of
its affiliates may have or acquire in respect of the properties, business or
financial condition of the Borrower or any of its Subsidiaries or any other
matter relating to this Agreement or any Related Writing or (d) to inquire into
the validity, effectiveness or genuineness of this Agreement or any Related
Writing.
SECTION 12.9 NOTICE OF DEFAULT. The Agent shall not be deemed to have
knowledge of any Incipient Default or Event of Default unless and until it shall
have received a written notice describing it and citing the relevant provision
of this Agreement or any Related Writing. The Agent shall give each Bank
reasonably prompt notice of any such written notice except to any Bank that
shall have given the written notice.
SECTION 12.10 AGENT'S LIABILITY. Neither the Agent nor any of its
directors, officers, employees, attorneys, and other agents shall be liable for
any action or omission on their respective parts except for gross negligence or
willful misconduct. Without limitation of the generality of the foregoing, the
Agent: (i) may treat the payee of any Revolving Credit Note as the holder
thereof until the Agent receives a fully executed copy of the assignment
agreement required by Section 13.1(b) signed by such payee and in form
satisfactory to the Agent and the fee required by Section 13.1(c); (ii) may
consult with legal counsel, independent public accountants and other experts
selected by it and shall not be liable for any action taken or omitted to be
taken in good faith by it in accordance with the advice or such counsel,
accountants or experts which have been selected by the Agent with reasonable
care; (iii) makes no warranty or representation to any Bank and shall not be
responsible to any Bank for any statements, warranties or representations made
in or in connection with this Agreement, any Guaranty of Payment or any other
Related Writing, including, without limitation, the truth of the statements made
in any certificate delivered by the Borrower under Article 6 or any Notice of
Borrowing, Rate Continuation/Conversion Request, Reimbursement Agreement or any
other similar notice or delivery, the Agent being entitled for the purposes of
determining fulfillment of the conditions set forth therein to rely conclusively
upon such certificates; (iv) shall not have any duty to ascertain or to inquire
as to the performance or observance of any of the terms, covenants or conditions
of this Agreement, the Notes or any other Related Writing or to inspect the
property (including the books and records) of the Borrower or any Subsidiaries;
(v) shall not be responsible to any Bank for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement,
any Guaranty of Payment or collateral covered by any agreement or any other
Related Writing and (vi) shall incur no liability under or in respect of this
Agreement, the Notes or any other Related Writing by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telegram,
telecopy, cable or telex) believed by it in good faith to be genuine and correct
and signed or sent by the proper party or parties.
Neither the Agent nor any of its directors, officers, employees or
agents shall have any responsibility to the Borrower on account of the failure
of or delay in performance or breach by any Bank of any of its obligations
hereunder or to any Bank on account of the failure of or delay in performance or
breach by any other Bank or the Borrower of any of their respective obligations
hereunder or under any Related Writing or in connection herewith or therewith.
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The Banks each hereby acknowledge that the Agent shall be under no duty
to take any discretionary action permitted to be taken by it pursuant to the
provisions of this Agreement, the Notes or any other Related Writing unless it
shall be requested in writing to do so by the Majority Banks.
SECTION 12.11 COMPENSATION. The Agent shall receive no compensation for
its services as agent of the Banks in respect of this Agreement and the Related
Writings, except as otherwise expressly agreed between the Borrower and the
Agent, but the Borrower shall reimburse the Agent periodically on its demand for
out-of-pocket expenses, if any, reasonably incurred by it as such and as to
which Agent has delivered to the Borrower's reasonable substantiation.
SECTION 12.12 AGENT'S INDEMNITY. The Banks shall indemnify the Agent
(to the extent the Agent is not reimbursed by the Borrower) from and against (a)
any loss or liability (other than any caused by the Agent's gross negligence or
willful misconduct and other than any loss to the Agent resulting from the
Borrower's non-payment of agency fees owed solely to the Agent) incurred by the
Agent as such in respect of this Agreement, the Notes, the Letters of Credit,
any Guaranty of Payment or any Related Writing (as the Agent) and (b) any
out-of-pocket expenses incurred in defending itself or otherwise related to this
Agreement, the Notes, any Guaranty of Payment, any Letter of Credit, or any
Related Writing (other than any caused by the Agent's gross negligence or
willful misconduct) including, without limitation, reasonable fees and
disbursements of legal counsel of its own selection (including, without
limitation, the reasonable interdepartmental charges of its salaried attorneys)
in the defense of any claim against it or in the prosecution of its rights and
remedies as the Agent (other than the loss, liability or costs incurred by the
Agent in the defense of any claim against it by the Banks arising in connection
with its actions in its capacity as Agent); PROVIDED, HOWEVER, that each Bank
shall be liable for only its Ratable Portion of the whole loss or liability.
SECTION 12.13 RESIGNATION. The Agent (or any successor) may at any time
resign as such by giving thirty (30) days' prior written notice to the Borrower
and to each Bank; and the Majority Banks may remove the Agent at any time with
or without cause by giving written notice to the Agent and the Borrower. In any
such case, the Majority Banks may appoint a successor to the resigned or removed
agent (the "Former Agent"), provided that the Majority Banks obtain the
Borrower's prior written consent to the successor (which consent shall not be
unreasonably withheld), by giving written notice to the Borrower, the Former
Agent and each Bank not participating in the appointment; PROVIDED, HOWEVER,
that, if at the time of the proposed resignation or removal of an Agent, the
Borrower is the subject of an action referred to in Section 10.9 or any other
Event of Default shall have occurred and be continuing, the Borrower's consent
shall not be required. In the absence of a timely appointment, the Former Agent
shall have the right (but not the duty) to make a temporary appointment of any
Bank (but only with that Bank's consent) to act as its successor pending an
appointment pursuant to the immediately preceding sentence. In either case, the
successor Agent shall deliver its written acceptance of appointment to the
Borrower, to each Bank and to the Former Agent, whereupon (a) the Former Agent
shall execute and deliver such assignments and other writings as the successor
Agent may reasonably require to facilitate its being and acting as the Agent,
(b) the successor Agent shall in any event automatically acquire and assume all
the rights and duties as those prescribed for the Agent by this Article 12 and
(c) the Former Agent shall be discharged from its duties and obligations under
this Agreement and the Related Writings.
SECTION 12.14 BANK PURPOSE. Each Bank represents and warrants to the
Agent, the other Banks and the Borrower that such Bank is familiar with the
Securities Act of 1933, as amended, and the rules and regulations thereunder and
is not entering into this Agreement with any intention to violate such Act or
any rule or regulation thereunder. Subject to the provisions of Sections 13.1,
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13.2 and 13.3, each Bank shall at all times retain full control over the
disposition of its assets subject only to this Agreement and to all applicable
Law.
ARTICLE 13
ASSIGNMENTS AND PARTICIPATIONS
SECTION 13.1 ASSIGNMENTS.
(a) ASSIGNMENTS BY BORROWER PROHIBITED. Whenever in this Agreement any
of the parties hereto is referred to, such reference shall be deemed to include
the successors and assigns of such party; PROVIDED, HOWEVER, that the Borrower
shall not assign or transfer any of its rights or obligations hereunder or under
any Note without the prior written consent of all of the Banks and the Agent.
(b) ASSIGNMENTS BY BANKS. Each Bank may assign all or any part of any
of its Revolving Credit Loans, its Note, its Commitment and its participation in
the Swingline Loans and the Letters of Credit with the consent of the Borrower
and the Agent, which consent shall not be unreasonably withheld; PROVIDED that
(i) no such consent by the Borrower shall be required (A) for any such
assignment by any Bank to an Affiliate of such Bank or to another Bank or an
Affiliate of another Bank, or (B) if, at the time of such assignment, an Event
of Default or Incipient Default has occurred and is continuing; (ii) any such
partial assignment shall be in an amount at least equal to $5,000,000; (iii)
each such assignment shall be made by a Bank in such manner that the same
portion of its Revolving Credit Loans, its Note, its Commitment and its
participation in the Swingline Loans and the Letters of Credit is assigned to
the assignee; and (iv) the assignee, if not already a Bank, shall agree to
become a party to this Agreement pursuant to an Assignment Agreement in the form
of Exhibit K hereto. Upon execution and delivery by the assignor and the
assignee to the Borrower and the Agent of an instrument in writing pursuant to
which such assignee agrees to become a "Bank" hereunder (if not already a Bank)
having the share of the Total Commitment Amount, Loans and Letters of Credit
specified in such instrument, and upon consent thereto by the Agent and the
Borrower (to the extent, if any, required), the assignee shall have, to the
extent of such assignment (unless otherwise provided in such assignment with the
consent of the Agent), the obligations, rights and benefits of a Bank hereunder
holding the share of the Total Commitment Amount, Loans and Letters of Credit
(or portions thereof) assigned to it (in addition to the share of the Total
Commitment Amount, Loans and Letters of Credit, if any, theretofore held by such
assignee); and the assigning Bank shall, to the extent of such assignment, be
released from the share of the Total Commitment Amount, Loans and Letters of
Credit and the obligations hereunder so assigned.
(c) PROCEDURES. Upon its receipt of an assignment pursuant to Section
13.1(b) above duly executed by an assigning Bank and the assignee, together with
any Note subject to such assignment and a processing and recordation fee of
$3,500, the Agent shall, if such assignment has been completed, accept such
assignment. Within five (5) business days after receipt of such notice, the
Borrower, at the Borrower's own expense, shall execute and deliver to the Agent
in exchange for each surrendered Note a new Note to the order of the assignee in
an amount equal to the Commitment assumed by the assignee and, if the assigning
Bank has retained a portion of its Commitment, a new Note to the order of the
assigning Bank in an amount equal to the share of its Commitment retained by it
hereunder. Such new Notes shall be in an aggregate principal amount equal to the
aggregate principal amount of such surrendered Notes, shall be dated the
effective date of such assignment, shall otherwise be in substantially the form
of Exhibit A hereto, and, upon such execution and delivery shall be a "Note"
under this Agreement. Canceled Notes shall be returned to the Borrower.
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(d) ADDITIONAL RESTRICTION ON ASSIGNMENT. Anything in this Section 13.1
to the contrary notwithstanding, except pursuant to this Agreement, no Bank may
assign or participate any interest in any Loan held by it hereunder to the
Borrower or any of its Affiliates without the prior written consent of each
Bank.
SECTION 13.2 PARTICIPATIONS. A Bank may sell or agree to sell to one or
more other Persons (each a "Participant") a participation in all or any part of
any Revolving Credit Loans held by it, or in its Commitment or its participation
in the Swingline Loans and the Letters of Credit. Except as otherwise provided
in the last sentence of this Section 13.2, no Participant shall have any rights
or benefits under this Agreement or any Note or any other Related Writings (the
Participant's rights against such Bank in respect of such participation to be
those set forth in the agreements executed by such Bank in favor of the
Participant). All amounts payable by the Borrower to any Bank under this
Agreement, and in respect of its Commitment, shall be determined as if such Bank
had not sold or agreed to sell any participations in such Revolving Credit Loans
and share of Commitment, and as if such Bank were funding each of such Revolving
Credit Loans and its share of such Commitment in the same way that it is funding
the portion of such Revolving Credit Loans and its Commitment in which no
participations have been sold. In no event shall a Bank that sells a
participation agree with the Participant (other than an Affiliate of such Bank)
to take or refrain from taking any action hereunder or under any Related
Writing, except that such Bank may agree with the Participant that it will not,
without the consent of the Participant, agree to any modification, supplement or
waiver hereof or of any of the Related Writings to the extent that the same,
under Section 14.1 hereof, requires the consent of each Bank. The Borrower
agrees that each Participant shall be entitled to the benefits of Sections 3.7
through 3.9, inclusive, and Section 11.3 (but, as to any sums realized
thereunder, subject to Section 11.4) with respect to its participating interest.
SECTION 13.3 PERMITTED PLEDGES. In addition to the assignments and
participations permitted under the foregoing provisions of this Article 13, any
Bank may assign and pledge all or any portion of its Revolving Credit Loans and
its Note to any Federal Reserve Bank as collateral security pursuant to
Regulation A of the Board of Governors of the Federal Reserve System and any
Operating Circular issued by such Federal Reserve Bank. No such assignment shall
release the assigning Bank from its obligations hereunder.
SECTION 13.4 FURNISHING OF OBLIGOR INFORMATION. A Bank may furnish any
information concerning the Borrower and its Subsidiaries in the possession of
such Bank from time to time to assignees and participants (including prospective
assignees and participants).
ARTICLE 14
MISCELLANEOUS
SECTION 14.1 AMENDMENTS, CONSENTS. No amendment, modification,
termination, or waiver of any provision of this Agreement or of the Notes, nor
consent to any variance therefrom, shall be effective unless the same shall be
in writing and signed by the Majority Banks (and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given); provided, however, that the unanimous consent of all Banks
shall be required with respect to any amendment, modification, termination, or
waiver which would effect (i) the extension of maturity of any Note, or of the
payment date of interest, principal and/or fees thereunder or hereunder, or (ii)
any reduction in the rate of interest on the Notes, or in any amount of
principal or interest due on any Note or in the rate or amount of fees payable
pursuant to Section 3.4, or any change in the manner of pro rata application of
any payments made by the Borrower to the Banks hereunder, or (iii) any change in
any percentage voting requirement in this Agreement, or (iv) any change in the
dollar amount or percentage of the Banks' Commitments or any Bank's Commitment,
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<PAGE> 67
or (v) any change in amount or timing of any fees payable under this Agreement,
or (vi) any release of (A) any portion of the Collateral (other than assets
permitted to be sold or otherwise transferred pursuant to the provisions of this
Agreement or of the Security Document encumbering such assets) or (B) the
Subsidiary Guarantors or any thereof from any obligation under any Guaranty of
Payment or release the Borrower from its obligations under Article 5, or (vii)
any change in any provision of this Agreement which requires all of the Banks to
take any action under such provision or (viii) any change in Section 11.4,
Article 13 or this Section 14.1 itself. Notice of amendments or consents
ratified by the Banks hereunder shall immediately be forwarded by the Borrower
to all Banks. Each Bank or other holder of a Note shall be bound by any
amendment, waiver or consent obtained as authorized by this section, regardless
of its failure to agree thereto.
SECTION 14.2 NO WAIVER; CUMULATIVE REMEDIES. No omission or course of
dealing on the part of Agent, any Bank or the holder of any Note in exercising
any right, power or remedy hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any such right, power or remedy preclude
any other or further exercise thereof or the exercise of any other right, power
or remedy hereunder. The remedies herein provided are cumulative and in addition
to any other rights, powers or privileges held by operation of Law, by contract
or otherwise.
SECTION 14.3 NOTICES. All notices, requests, demands and other
communications provided for hereunder shall be in writing and, if to the
Borrower, mailed or delivered to them (including, without limitation, delivery
by facsimile transmission), addressed to them at the address specified on the
signature pages of this Agreement, if to a Bank, mailed or delivered to it
(including, without limitation, delivery by facsimile transmission), addressed
to the address of such Bank specified on the signature pages of this Agreement.
All notices, statements, requests, demands and other communications provided for
hereunder shall be deemed to be given or made when delivered or forty-eight (48)
hours after being deposited in the mails with postage prepaid by registered or
certified mail or delivered to a telegraph company, addressed as aforesaid,
except that notices from the Borrower to Agent or the Banks pursuant to any of
the provisions hereof, including, without limitation, Articles 3, 4, 5 and 6
hereof, shall not be effective until received by Agent or the Banks.
SECTION 14.4 COSTS AND EXPENSES. The Borrower agrees to pay on demand
all reasonable costs and expenses of the Agent in connection with the
preparation, execution, delivery, filing for record, modification,
administration and amendment of this Agreement (including, without limitation,
any amendment), the Notes, any Guaranty of Payment, the Letters of Credit, the
Security Documents and the other Related Writings and the other documents to be
delivered hereunder, including, without limitation, the reasonable fees and
out-of-pocket expenses of counsel for the Agent with respect thereto (including
any reasonable interdepartmental charges) and with respect to advising the Agent
as to its rights and responsibilities under this Agreement. Without limiting the
generality of the foregoing, such costs and expenses shall include: (a)
reasonable attorneys' and paralegals' costs, expenses and disbursements of
counsel to the Agent; (b) extraordinary expenses of Agent in connection with the
administration of this Agreement, the Notes, any Guaranty of Payment, Letters of
Credit, any other Related Writing and the other instruments and documents to be
delivered hereunder; (c) the reasonable fees and out-of-pocket expenses of
special counsel for the Agent or the Agent for the benefit of the Banks, with
respect thereto and of local counsel, if any, who may be retained by said
special counsel with respect thereto; (d) costs and expenses (including
reasonable attorneys and paralegal costs, expenses and disbursements) for any
amendment, supplement, waiver, consent, or subsequent closing in connection with
this Agreement, the Notes, any Guaranty of Payment, any Letters of Credit or any
other Related Writing and the transactions contemplated thereby; (e) sums paid
or incurred to pay any amount or take any action required of the Borrower under
this Agreement, the Notes or any Related Writing that the Borrower fail to pay
or take; (f) the cost of any appraisal, survey, environmental audit or the
retention of any other
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<PAGE> 68
professional service or consultant commenced after the occurrence and
continuation of an Event of Default and deemed reasonably necessary by the
Agent; (g) costs of inspections and periodic review of the records of the
Borrower or any of its Subsidiaries, including, without limitation, travel,
lodging, and meals for inspections of the Borrower's and its Subsidiaries'
operations by the Agent up to one time per year and at any time after the
occurrence and during the continuation of an Event of Default; (h) costs and
expenses of forwarding loan proceeds, fees, interest and other payments to the
Banks; and (i) costs and expenses (including, without limitation, attorneys'
fees) paid or incurred to obtain payment of the Obligations (including the
Obligations arising under this Section 14.4), enforce the provisions of the
Credit Agreement, the Notes, any Guaranty of Payment or any other Related
Writing, or to defend any claims made or threatened against the Agent arising
out of the transactions contemplated hereby (including without limitation,
preparations for and consultations concerning any such matters). The Borrower
further agree to pay on demand all costs and expenses of each Bank, if any
(including reasonable counsel fees and expenses), in connection with the
restructuring or the enforcement (whether through negotiations, legal
proceedings or otherwise) of this Agreement, the Notes, any Guaranty of Payment,
any other Related Writing and the other documents to be delivered hereunder,
including, without limitation, reasonable counsel fees and expenses in
connection with the enforcement of rights under this Section 14.4. The foregoing
shall not be construed to limit any other provisions of this Agreement, the
Notes, any Guaranty of Payment or any Related Writing regarding costs and
expenses to be paid by the Borrower. All of the foregoing costs and expenses may
be charged, in the Agent's sole discretion, to the Borrower' loan accounts as
Revolving Credit Loans (notwithstanding existence of any Incipient Default or
Event of Default or the failure of the conditions of Article 7 to have been
satisfied).
SECTION 14.5 OBLIGATIONS SEVERAL. The obligations of the Banks
hereunder are several and not joint. Nothing contained in this Agreement and no
action taken by Agent or the Banks pursuant hereto shall be deemed to constitute
the Banks to be a partnership, association, joint venture or other entity. No
default by any Bank hereunder shall excuse the other Banks from any obligation
under this Agreement; but no Bank shall have or acquire any additional
obligation of any kind by reason of such default.
SECTION 14.6 EXECUTION IN COUNTERPARTS. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same agreement.
SECTION 14.7 BINDING EFFECT; ASSIGNMENT. This Agreement shall become
effective when it shall have been executed by the Borrower, Agent and by each
Bank and thereafter shall be binding upon and inure to the benefit of the
Borrower and each of the Banks and their respective successors and assigns,
except that the Borrower shall not have the right to assign its rights hereunder
or any interest herein without the prior written consent of all of the Banks. No
person, other than the Banks, shall have or acquire any obligation to grant the
Borrower any Loans hereunder. Any Bank may at any time sell, assign, transfer,
grant a participation pursuant to Article 13 hereof.
SECTION 14.8 GOVERNING LAW. This Agreement, each of the Notes and any
Related Writing shall be governed by and construed in accordance with the Laws
of the State of Ohio and the respective rights and obligations of the Borrower
and the Banks shall be governed by Ohio Law, except that, as to the Security
Documents, the laws of the State in which Collateral is located or deemed to be
located shall govern the attachment and perfection of the Liens created by the
Security Documents.
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<PAGE> 69
SECTION 14.9 SEVERABILITY OF PROVISIONS; CAPTIONS. Any provision of
this Agreement which is prohibited or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction. The several captions to sections and subsections herein are
inserted for convenience only and shall be ignored in interpreting the
provisions of this Agreement.
SECTION 14.10 ENTIRE AGREEMENT. This Agreement and the Related Writings
referred to in or otherwise contemplated by this Agreement set forth the entire
agreement of the parties as to the transactions contemplated by this Agreement.
SECTION 14.11 CONFIDENTIALITY. The Agent and the Banks hereby
acknowledge that the Borrower and its Subsidiaries have financial and other data
and information the confidentiality of which is important to their business. The
Agent and the Banks agree to use all reasonable efforts to keep confidential any
such confidential information conveyed to them and appropriately designated in
writing by the Borrower as being confidential information, EXCEPT that this
Section shall not be binding on the Agent or the Banks after the expiration of
two years after the termination of this Agreement and shall not preclude the
Agent and the Banks from furnishing any such confidential information: (i)
subject to the Borrower's receipt of prior notice from the Agent or a Bank, if
permitted under applicable law and such legal proceedings, to the extent which
may be required by subpoena or similar order of any court of competent
jurisdiction, (ii) to the extent such information is required to be disclosed to
any authority over the Agent or a Bank or its securities, (iii) to any other
party to this Agreement, (iv) to any Affiliate of the Agent or a Bank (other
than Affiliate engaged in non-banking activities competitive with the Borrower
and its Subsidiaries) so long as such Affiliate agrees to be bound by the
provisions of this Section 14.11, (v) to any actual or prospective successor
Agent and to any actual or prospective transferee, participant or subparticipant
of all or part of a Bank's rights arising out of or in connection with this
Agreement or any thereof so long as such prospective transferee, participant or
subparticipant to whom disclosure is made agrees to be bound by the provisions
of this Section 14.11, (vi) to anyone if it shall have been already publicly
disclosed (other than by the Agent or a Bank in contravention of this Section
14.11), (vii) to the extent reasonably required in connection with the exercise
of any right or remedy under this Agreement or any Related Writing, (viii) to
the Agent's or a Bank's legal counsel, auditors, professional advisors and
consultants, and accountants and (ix) in connection with any legal proceedings
instituted by or against the Agent or a Bank in its capacity as the Agent or a
Bank under this Agreement.
SECTION 14.12 JURY TRIAL WAIVER. THE BORROWER, THE AGENT, THE LETTER OF
CREDIT BANK AND EACH OF THE BANKS WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN
RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG
THE BORROWER, THE AGENT, THE LETTER OF CREDIT BANK AND THE BANKS, OR ANY
THEREOF, ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR ANY
NOTE OR OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH OR THE TRANSACTIONS RELATED THERETO.
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<PAGE> 70
SECTION 14.13 JURISDICTION; VENUE; INCONVENIENT FORUM.
(a) JURISDICTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE
JURISDICTION OF ANY OHIO STATE COURT OR FEDERAL COURT OF THE UNITED STATES OF
AMERICA SITTING IN CUYAHOGA COUNTY, OHIO, AND ANY APPELLATE COURT FROM ANY
THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT, THE NOTES OR ANY RELATED WRITING, OR FOR RECOGNITION OR ENFORCEMENT
OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH OHIO STATE OR, TO THE EXTENT
PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT
A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY LAW. NOTHING IN THIS AGREEMENT SHALL AFFECT ANY RIGHT THAT ANY PARTY
MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT,
THE NOTES OR ANY RELATED WRITING IN THE COURTS OF ANY JURISDICTION.
(b) VENUE; INCONVENIENT FORUM. EACH OF THE PARTIES HERETO IRREVOCABLY
AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY
DO SO, ANY OBLIGATION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE
OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT,
THE NOTES OR ANY OTHER RELATED WRITING IN ANY OHIO STATE OR FEDERAL COURT
SITTING IN OHIO. EACH OF THE PARTIES HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF
SUCH ACTION OR PROCEEDING IN ANY SUCH COURT. THE BORROWER CONFIRMS THAT THE
FOREGOING WAIVERS ARE INFORMED AND FREELY MADE.
[No additional provisions on this page; this page followed by signature pages]
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<PAGE> 71
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers or agents thereunto duly authorized, as of
the date first above written.
BORROWER
--------
SHILOH INDUSTRIES, INC.
By: /s/ Craig A. Stacy
-------------------------------------
Craig A. Stacy
Title: Chief Financial Officer
402 Ninth Avenue
Mansfield, Ohio 44905
Attention:
Telecopy: (330) 273-7999
ADMINISTRATIVE AGENT
--------------------
KEYBANK NATIONAL ASSOCIATION,
as Agent
By: /s/ Brendan A. Lawlor
-------------------------------------
Brendan A. Lawlor
127 Public Square
Cleveland, Ohio 44114
Attention: Large Corporate
Division
Telecopy: (216) 689-4981
CO-DOCUMENTATION AGENTS
-----------------------
BANK ONE, MICHIGAN
By: /s/ Authorized Signatory
-------------------------------------
-----------------------
Title: First Vice President
NATIONAL CITY BANK
By: /s/ Robert S. Coleman
-------------------------------------
Robert S. Coleman
Title: Vice President
Signature page 1 of 6 signature pages to Credit Agreement
among Shiloh Industries, Inc., et al., dated as of September 13, 1999
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<PAGE> 72
BANKS
-----
THE BANK OF NOVA SCOTIA
By: /s/ F.C.H. Ashby
-------------------------------------
F.C.H. Ashby
Title: Senior Manager Loan Operations
Address for Notices:
The Bank of Novia Scotia
181 West Madison Street, Suite 3700
Chicago, Illinois 60602
Attention: Eric Bergren
Telecopy: (312) 201-4108
Lending Office:
The Bank of Nova Scotia
600 Peachtree Street, N.E.
Atlanta, Georgia 30308
BANK ONE, MICHIGAN
By: /s/ Authorized Signatory
-------------------------------------
-------------------------
Title: First Vice President
Address for Notices:
Bank One, Michigan
Corporate Banking
611 Woodward Avenue
Detroit, Michigan 48226
Attention: William H. Canney
Telecopy: (313) 225-2290
Lending Office:
Bank One, Michigan
611 Woodward Avenue
Detroit, Michigan 48226
Signature page 2 of 6 signature pages to Credit Agreement
among Shiloh Industries, Inc., et al., dated as of September 13, 1999
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<PAGE> 73
COMERICA BANK
By: /s/ Nicholas G. Mester
-------------------------------------
Nicholas G. Mester
Title: Account Officer
Address for Notices:
Comerica Bank
500 Woodward Avenue
Detroit, Michigan 48226
Attention: Nick Mester
Telecopy: (313) 222-3776
Lending Office:
Comerica Bank
500 Woodward Avenue
Detroit, Michigan 48226
FIRSTAR BANK NATIONAL ASSOCIATION
By: /s/ David J. Dannemiller
-------------------------------------
David J. Dannemiller
Title: Vice President
Address for Notices:
Firstar Bank National Association
1350 Euclid Avenue
Cleveland, Ohio 44115
Attention: David Dannemiller
Telecopy: (216) 623-9208
Lending Office:
Firstar Bank National Association
1350 Euclid Avenue
Cleveland, Ohio 44115
Signature page 3 of 6 signature pages to Credit Agreement
among Shiloh Industries, Inc., et al., dated as of September 13, 1999
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<PAGE> 74
HARRIS TRUST AND SAVINGS BANK
By: /s/ Jeffrey C. Nicholson
-------------------------------------
Jeffrey C. Nicholson
Title: Managing Director
Address for Notices:
Harris Trust and Savings Bank
111 West Monroe Street
Chicago, Illinois 60603
Attention: Peter Krawchuk
Telecopy: (312) 461-5225
Lending Office:
Harris Trust and Savings Bank
111 West Monroe Street
Chicago, Illinois 60603
KEYBANK NATIONAL ASSOCIATION
By: /s/ Brendan A. Lawlor
-------------------------------------
Brendan A. Lawlor
Title: Vice President
Address for Notices:
KeyBank National Association
127 Public Square
Cleveland, Ohio 44114
Attention: Large Corporate Division
Telecopy: (216) 689-4981
Lending Office:
KeyBank National Association
127 Public Square
Cleveland, Ohio 44114
Signature page 4 of 6 signature pages to Credit Agreement
among Shiloh Industries, Inc., et al., dated as of September 13, 1999
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<PAGE> 75
LASALLE BANK NATIONAL
ASSOCIATION
By: /s/ Timothy P. Polomsky
-------------------------------------
Timothy P. Polomsky
Title: First Vice President
Address for Notices:
LaSalle Bank National Association
1300 East Ninth Street, Suite 1000
Cleveland, Ohio 44114
Attention: Timothy Polomsky
Telecopy: (216) 802-2212
Lending Office:
LaSalle Bank National Association
135 South Lasalle Street
Chicago, Illinois 60603
MELLON BANK, N.A.
By: /s/ Christopher S. Ragheb
-------------------------------------
Christopher S. Ragheb
Title: Vice President
Address for Notices:
Mellon Bank, N.A.
200 Public Square, 29th Floor
Cleveland, Ohio 44114
Attention: Christopher Ragheb
Telecopy: (216) 575-0513
Lending Office:
Mellon Bank, N.A.
Three Mellon Bank Center
Pittsburgh, Pennsylvania 15259
Signature page 5 of 6 signature pages to Credit Agreement
among Shiloh Industries, Inc., et al., dated as of September 13, 1999
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<PAGE> 76
NATIONAL CITY BANK
By: /s/ Robert S. Coleman
-------------------------------------
Robert S. Coleman
Title: Vice President
Address for Notices:
National City Bank
1900 East Ninth Street
Cleveland, Ohio 44114
Attention: Robert Coleman
Telecopy: (216) 575-0003
Lending Office:
National City Bank
1900 East Ninth Street
Cleveland, Ohio 44114
PNC BANK, NATIONAL
ASSOCIATION
By: /s/ Jefferson M. Green
-------------------------------------
Jefferson M. Green
Title: V.P.
Address for Notices:
PNC Bank, National Association
1375 East Ninth Street, Suite 1250
Cleveland, Ohio 44114
Attention: Jefferson M. Green
Telecopy: (216) 348-8594
Lending Office:
PNC Bank, National
Association
1375 East Ninth Street
Cleveland, Ohio 44114
Signature page 6 of 6 signature pages to Credit Agreement
among Shiloh Industries, Inc., et al., dated as of September 13, 1999
-76-
<PAGE> 77
List of Exhibits
----------------
Exhibit A - Form of Revolving Credit Note
Exhibit B - Form of Swingline Note
Exhibit C - Form of Notice of Borrowing
Exhibit D - Form of Rate Conversion/Continuation Request
Exhibit E - Form of Reduction Notice
Exhibit F - Form of Guaranty of Payment
Exhibit G-1 - Form of Security Agreement - Borrower
Exhibit G-2 - Form of Security Agreement - Subsidiary Guarantors
Exhibit H - Form of Patent Agreement
Exhibit I - Form of Certificate of Financial Officer
Exhibit J - Form of Administrative Questionnaire
Exhibit K - Form of Assignment Agreement
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<PAGE> 78
List of Schedules
-----------------
Schedule 1.1 - Terms of Qualifying Sub-Debt Issuance
Schedule 6.2 - Closing Fees
Schedule 8.10 - Existing Liens
Schedule 8.11 - Existing Indebtedness
Schedule 9.1 - Existing Subsidiaries
Schedule 9.12 - Location of Collateral, Offices, Etc.
Schedule 9.14 - Intellectual Property
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<PAGE> 1
Exhibit 10.11
TRANSITIONAL SERVICES AGREEMENT
THIS TRANSITIONAL SERVICES AGREEMENT ("Agreement") is entered into as
of the 31st day of October, 1999 (the "Effective Date"), by and among SHILOH
INDUSTRIES, INC., a Delaware corporation (the "Parent"), SHILOH AUTOMOTIVE,
INC., an Ohio corporation ("Buyer"), and MTD PRODUCTS INC, an Ohio corporation
("Seller").
RECITALS
WHEREAS, Seller is in the business of manufacturing and marketing
engineered stamped products for the automotive industries (the "Business")
through a non-incorporated division (the "Division") of Seller; and
WHEREAS, Parent, Buyer and Seller have entered into an Asset Purchase
Agreement dated as of June 21, 1999, as amended, by and between Parent, Buyer
and Seller ("Asset Purchase Agreement") with regard to the sale of specified
assets of the Division from Seller to Buyer and the assumption of certain
liabilities; and
WHEREAS, the parties desire to set forth the terms and conditions by
which Seller, during the Term (as defined in Section 9), will (i) provide to
Buyer information management and related services necessary to operate the
Business consistent with past practice and (ii) assist Buyer in its transition
from the Business's current information management systems to information
management systems implemented or to be implemented by Buyer (collectively, the
"Transitional Services").
NOW THEREFORE, in consideration of the mutual covenants,
representations and warranties made herein, and of the mutual benefits to be
derived hereby, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. TRANSITIONAL SERVICES. (a) Subject to and upon the terms and
conditions set forth in this Agreement, during the Term, Seller
shall provide or cause to be provided to Buyer the Transitional
Services, including, without limitation, the services referred to on
Schedule One attached hereto and incorporated herein by reference.
During the Term, Seller shall provide Buyer with the same level of
support with respect to the Transitional Services that Seller
provided to the Division prior to the Effective Date, which level of
support Seller covenants shall be sufficient to operate the Business
during the Term consistent with past practice. In addition, during
the Term, Seller shall assist (which assistance shall include, among
other things, data conversion, mapping and troubleshooting system
startups and/or migrations to new systems) Buyer in connection with
Buyer's implementation of its own systems and services to replace
the systems and services previously provided by Seller, which
assistance shall be of the same type Seller has historically
provided for such conversion and implementation issues for the
Division.
<PAGE> 2
(b) During the Term, Seller shall maintain at Buyer's facilities, at
Seller's sole cost and expense, three full-time employees of Seller
(the "Transition Employees") to assist Seller in providing
Transitional Services to Buyer. The determination of the initial
Transition Employees shall be made by Seller and Buyer. If, during
the Term, a Transition Employee shall no longer be employed by
Seller or Seller otherwise desires to substitute a new Transition
Employee, Seller shall use its reasonable efforts to replace such
person with another person with similar experience relating to the
Division and the services and systems constituting the Transitional
Services, which person shall be reasonably acceptable to Buyer.
During the Term, the Transition Employees shall be instructed to
provide their full time and attention to providing Transitional
Services to Buyer and facilitating Buyer's implementation of its
own systems and services to replace those previously provided by
Seller.
(c) During the Term, Seller shall maintain in full force and effect any
and all leases, licenses, maintenance agreements and other
agreements relating to the Business's information management
systems and related services existing as of the Effective Date
(individually, an "IT Agreement" and collectively, the "IT
Agreements"). Buyer shall reimburse Seller for all out-of-pocket
costs associated with the maintenance of such IT Agreements
provided that (i) the Seller provides Buyer with supporting
documentation, in form and substance reasonably satisfactory to
Buyer, evidencing Seller's costs therefor and (ii) such costs were,
in the ordinary course of business, directly billed by Seller or
the applicable vendor to the Division prior to the Closing Date.
If, during the Term, any IT Agreement expires or is terminated,
then (i) Seller shall, at its sole cost and expense, in the case of
expiration, renew such IT agreement or, in the case of expiration
or termination, replace such IT Agreement with an IT Agreement
containing substantially similar terms (each, a
"Renewal/Replacement IT Agreement"), (ii) if requested by Buyer,
Seller shall use its reasonable efforts to cause each
Renewal/Replacement IT Agreement to permit assignment of such
agreement to Buyer at the end of the Term and (iii) if requested by
Buyer, Seller shall use its reasonable efforts to facilitate the
assignment of any or all Renewal/ Replacement IT Agreements to
Buyer. Buyer and Seller agree to work together in good faith during
the Term to (i) determine whether to renew or replace IT Agreements
that expire or have been terminated and (ii) select the entity or
person(s) to provide services under any Renewal/Replacement IT
Agreements which entity or person(s) shall in all cases be
reasonably acceptable to Buyer.
(d) Buyer acknowledges and agrees that any IT Agreements which perform
functions not available with IT Agreements in effect as of the
Effective Date will be purchased by Buyer at its own expense
provided that Seller will provide reasonable assistance with the
implementation of any such IT Agreements (including hardware
purchased or leased by Buyer).
2. COMPENSATION. Subject to earlier termination as set forth in Section
8 of this Agreement, as compensation for such Transitional Services, Buyer shall
pay to Seller the following:
2
<PAGE> 3
(a) Subject to any adjustments pursuant to Section 2(d) below, during
the first year commencing on the Effective Date, the aggregate
amount of Six Hundred Thousand Dollars ($600,000) (the "Base Rate")
payable in equal monthly installments of Fifty Thousand Dollars
($50,000) for each month that Transitional Services are provided.
Payment shall be made on the first day of each applicable month,
commencing November 1, 1999;
(b) Subject to any adjustments pursuant to Section 2(d) below, during
the second year commencing after the Effective Date, the amount of
compensation payable to Seller for the Transitional Services shall
increase to an amount equal to the sum of the Base Rate payable by
Buyer for the immediately preceding year (the "Year One Base Rate")
plus an amount equal to the Year One Base Rate multiplied by the
percentage that the CPI (hereinafter defined) as of October 2000
has increased from the CPI as of October 1999 (the "Adjusted Base
Rate"). The term "Consumer Price Index" and the term "CPI" when
used herein means the Consumer Price Index - U.S. Averages for
Urban Earners and Clerical Workers, all Items (1982-1984 = 100), of
the United States Bureau of Labor Statistics. If the Consumer Price
Index shall be substantially revised (including, but not limited
to, a change from using the 1982-1984 averages as the Base Index of
100) or becomes unavailable to the public, Seller and Buyer will in
good faith substitute therefor a comparable index based upon
changes in the cost of living or purchasing power of the consumer
dollar;
(c) For years commencing after expiration of the initial Term, the
parties shall negotiate in good faith a revised rate of
compensation mutually agreeable to the parties; and
(d) If, during the Term, Buyer shall implement any services internally
("Newly Implemented Services") such that it no longer requires
Seller to provide the Newly Implemented Services, then (i) Buyer
shall provide Seller with written notice of the implementation of
the Newly Implemented Services, specifying in detail the services
no longer required from Seller and the date on which Seller shall
cease to provide such services and (ii) Buyer and Seller shall
negotiate in good faith to reduce the Base Rate or the Adjusted
Base Rate, as the case may be, to give effect to such reduction in
services provided by Seller. Likewise, if, during the Term, the
Buyer requests Seller to provide any additional services, then (i)
Buyer and Seller shall agree on the nature and scope of such
additional services and amend Schedule One hereto accordingly and
(ii) Buyer and Seller shall negotiate in good faith the amount of
any increase in the Base Rate or the Adjusted Base Rate, as the
case may be, resulting from Seller providing such additional
services.
(e) Buyer will utilize reasonable efforts to implement conversion to
its own systems such that Buyer will convert to Buyer's BAAN
operating system from Seller's MAPICS operating system not later
than the end of the Term and will undertake reasonable efforts to
commence such conversion process not later than 18 months after the
Effective Date.
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<PAGE> 4
3. USE OF SYSTEMS BY SELLER. During the Term, Seller shall have the
right to continue to have access (physically and through off-site access) to
utilize the computer equipment, software and related items provided hereunder in
connection with Seller's use of information systems processes to operate the
business of Seller. Parent and Buyer recognize that the compensation rates set
forth in the Agreement include such right of continuing use and access by
Seller.
4. DISPUTE RESOLUTION PROCESS. If, during the Term, any issue or issues
arise regarding the Transitional Services or the terms or interpretation of this
Agreement, employees of Seller shall contact George R. Yates (or his successor
designee) (the "Seller Initial Representative") and employees of Buyer shall
contact Scott Klonowski (or his successor designee) (the "Buyer Initial
Representative," and together with the Seller Initial Representative, the
"Initial Representatives") regarding such issue or issues. Upon receipt of
notice of an issue or issues from their respective employees, the Initial
Representative receiving such notice shall contact the other Initial
Representative and in good faith attempt to resolve such issue or issues. If the
Initial Representatives are unable to resolve such issue or issues to their
mutual satisfaction or if resolution of such issue or issues is beyond the scope
of the Initial Representatives' authority as representatives of Seller or Buyer,
then the Initial Representatives shall notify Ronald C. Houser (or his successor
designee) (the "Seller Senior Representative") and Craig A. Stacy (or his
successor designee) (the "Buyer Senior Representative," and together with the
Seller Senior Representative, the "Senior Representatives") regarding the issue
or issues. The Senior Representatives shall in good faith attempt to resolve the
issue or issues. The parties agree that the Initial Representatives and the
Senior Representatives shall attempt to resolve any and all issues under or
relating to this Agreement in a manner consistent with the parties' intent and
purpose in entering this Agreement (i.e., to enable Buyer during the Term to
operate the information technology aspects of the Business consistent with past
practice and to transition the Business to new information management systems
for a flat annual fee equal to the Base Rate in the first year and the Adjusted
Base Rate in the second year regardless of the cost incurred by Seller in
providing such services to Buyer).
5. CONDITION PRECEDENT. This Agreement shall be effective only upon
consummation of the transactions contemplated by the Asset Purchase Agreement.
6. POSTPONEMENT OF PERFORMANCE. Performance under this Agreement by
either party may be postponed or extended automatically to the extent that a
party is prevented from performing its obligations by any cause beyond its
reasonable control, such as acts of God, strikes, labor disputes, equipment
and/or telecommunications failures, supply disruptions, governmental regulations
superimposed after the fact, fire, acts of war, riots, or other force majeure
events, provided such cause does not arise from the performing party's
intentional or grossly negligent action, and provided further that the party
unable to perform promptly notifies the other party of the commencement, nature
and projected duration of the cause.
7. LIMITATION OF LIABILITY. In no event shall Seller be liable for any
special, incidental or consequential damages, whether a claim for such recovery
is based on theories of contract, negligence or tort (including strict
liability), even if Seller has knowledge of the possibility of the potential
loss or damage. Seller's aggregate liability for damages to Parent and Buyer for
any cause whatsoever shall be limited to the total compensation paid or payable
to Seller by Parent and Buyer during the term of this Agreement. Parent and
Buyer hereby waive,
4
<PAGE> 5
for themselves and their successors and assigns, any and all claims of
negligence or strict liability that are for special, incidental or consequential
damages. Parent and Buyer recognize that the provisions of this section are a
material factor in Seller's provision to them of the services set forth herein.
8. SCOPE OF AGREEMENT. Parent and Buyer acknowledge and agree that
except as otherwise set forth in the Asset Purchase Agreement, Seller is not
selling or transferring title to software licenses, equipment or machinery which
may be utilized in providing the services under this Agreement. In addition,
except as otherwise set forth in the Asset Purchase Agreement, Parent and Buyer
acknowledge and agree that pursuant to this Agreement, Seller is not subleasing
or sublicensing any agreements to which Seller is a lessee or licensee.
9. TERM OF AGREEMENT. (a) This Agreement shall commence as of the
Effective Date and continue in effect for a period of two years
(the "Term"). Thereafter, the parties agree to negotiate in good
faith the extension of this Agreement on terms and conditions
mutually agreeable to the parties. Notwithstanding the above, from
time to time Parent and Buyer may reduce or increase the scope of
Transitional Services as set forth in this Agreement in which event
the provisions of Section 2 (d) below shall apply.
(b) Parent and Buyer may terminate this Agreement at any time effective
on the first day of the month commencing 30 days after delivery of
written notice to Seller of such termination. Parent and Buyer may
terminate this Agreement if Seller breaches or otherwise fails to
perform any of its obligations under this Agreement which breach or
failure to perform is not cured within thirty days after written
notice of such breach or failure to perform or such additional
period of time as Seller is diligently pursuing remediation of the
breach or failure to perform. Parent and Buyer shall continue to
pay the amount of compensation due until the termination is
effective.
(c) Seller may terminate this Agreement if Parent and/or Buyer fail to
pay amounts due under this Agreement within five days after written
notice of non-payment when due. Seller may also terminate this
Agreement if Parent and/or Buyer breach other provisions of this
Agreement which are not cured within thirty days after receipt of
written notice of such breach or such additional period of time as
Parent and/or Buyer are diligently pursuing remediation of the
breach.
10. POST-TERMINATION MATTERS. Upon termination of this Agreement for
any other reason other than default by Parent and/or Buyer, Seller shall
negotiate with Buyer to sell and transfer to Buyer the computer equipment,
software and other information systems property which Buyer determines to be
necessary to operate the Business and which Seller does not require for the
operation of its business. The purchase price shall be an amount equal to the
fair market value of such equipment as the parties mutually determine based on
good faith negotiations. To the extent Seller needs to retain certain
information systems property, Seller shall negotiate in good faith the terms and
condition of the lease or sublease of such properties if such can be achieved.
If not sold, subleased or sublicensed to Buyer, as the case may be, Seller shall
have the right to obtain possession at end of term of any computer equipment and
operating software of the Seller in the possession of Buyer at the expiration of
this Agreement. Such
5
<PAGE> 6
possession will be processed in coordination with Buyer so as to not materially
interfere with Buyer's operation of its business.
11. INDEPENDENT CONTRACTORS. The relationship established between
Parent and Buyer, on the one hand, and Seller, on the other hand, by this
Agreement is that of vendor and vendee and nothing herein contained shall be
deemed to establish or otherwise create a relationship of principal and agent
between the parties. Each party is an independent contractor and shall not be
deemed an agent of the other party for any purpose whatsoever. Neither party,
nor any of its agents or employees shall have any right or authority to assume
or create any obligation of any kind, whether express or implied, on behalf of
the other party. Neither party shall make warranties or representations on
behalf of the other party to customers or to the trade with respect to any of
the Transitional Services, except as may be expressly approved in writing in
advance by the other party.
12. NOTICES. All notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given if (a) delivered
personally, (b) mailed by first-class, registered or certified mail, return
receipt requested, postage prepaid, or (c) sent by next-day or overnight mail or
delivery or (d) sent by telecopy or telegram:
if to the Parent or Buyer to:
Shiloh Industries, Inc.
P.O.Box 2037
Mansfield, Ohio 44905
Attention: President
Fax Number: (419) 522-2275
with a copy to:
Jones, Day, Reavis & Pogue
901 Lakeside Avenue
Cleveland, Ohio 44114
Attention: Patrick J. Leddy, Esq.
Fax Number: (216) 579-0212
if to Seller to:
MTD Products Inc
P.O. Box 368022
Cleveland, Ohio 44136
Attention: Ronald C. Houser, Chief Financial Officer
Fax Number: (330) 273-4617
6
<PAGE> 7
with a copy to:
Wegman, Hessler, Vanderburg & O'Toole
6055 Rockside Woods Boulevard
Suite 200
Cleveland, Ohio 44131
Attention: David J. Hessler, Esq.
Fax Number: (216) 642-8826
or, in each case, at such other address as may be specified in writing to the
other parties hereto.
All such notices, requests, demands, waivers and other communications
shall be deemed to have been received (w) if by personal delivery on the day
after such delivery, (x) if by certified or registered mail, on the seventh
business day after the mailing thereof, (y) if by next-day or overnight mail or
delivery, on the day delivered, (z) if by telecopy or telegram, on the next day
following the day on which such telecopy or telegram was sent, provided that a
copy is also sent by certified or registered mail.
13. HEADINGS. The headings contained in this Agreement are for purposes
of convenience only and shall not affect the meaning or interpretation of this
Agreement.
14. ENTIRE AGREEMENT. This Agreement and the Asset Purchase Agreement
constitute the entire agreement and supersede all prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof.
15. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original and all of which shall
together constitute one and the same instrument.
16. GOVERNING LAW, ETC. This Agreement shall be governed in all
respects, including as to validity, interpretation and effect, by the internal
laws of the State of Ohio, without giving effect to the conflict of laws rules
thereof. Any controversy arising under or out of this Agreement shall be settled
by arbitration in accordance with the governing rules of the American
Arbitration Association as administered through the Cleveland, Ohio office. The
commercial arbitration rules of the American Arbitration Association shall apply
and the controversy shall be governed by the laws of the State of Ohio. The
arbitrator shall be selected by the parties by mutual agreement at the time a
claim is submitted for arbitration. The award rendered by the arbitrator shall
be final and judgment may be entered upon it in accordance with applicable law
in any court having jurisdiction thereof, including a federal district court,
pursuant to the Federal Arbitration Act. In preparation for the arbitration
hearing, each party may utilize all methods of discovery authorized by the Ohio
Rules of Civil procedure, and may enforce the right to such discovery in the
manner provided by said rules and/or by the Ohio Arbitration Law. The arbitrator
may order a pre-hearing exchange of information by the parties, including
without limitation, production of requested documents, exchange of summaries of
testimony of proposed witnesses and examination by deposition of witnesses and
parties. Unresolved discovery disputes may be brought to the attention of the
arbitrator and may be disposed of by the arbitrator. The arbitration hearing
shall be conducted in Cleveland, Ohio. The arbitrator shall have the authority
to award any remedy or relief a court of the State of Ohio could order or grant,
7
<PAGE> 8
including, without limitation, specific performance of any obligation created
under this Agreement, the awarding of the issuance of an injunction or the
imposition of sanctions of abuse of frustration of the arbitration process.
Judgment upon the award of the arbitrator may be entered in any court of
competent jurisdiction and enforced with full judicial effect thereafter. All
fees and expenses of the arbitration shall be borne by the parties equally,
however, each party shall bear the expense of its own counsel, experts,
witnesses, and preparation and presentations. The arbitrator is authorized to
award any party such sums as shall be deemed proper for the time, expense and
inconvenience of arbitration, including arbitration fees and attorney fees.
17. BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs, successors and
permitted assigns.
18. ASSIGNMENT. This Agreement shall not be assignable or otherwise
transferable by any party hereto without the prior written consent of the other
party hereto, PROVIDED that Buyer may assign this Agreement to any Subsidiary of
the Parent, PROVIDED, FURTHER, that no assignment shall in any way affect
Parent's and Buyer's obligations or liabilities under this Agreement.
19. AMENDMENT. Neither party may amend this Agreement without the prior
written consent of the other party.
8
<PAGE> 9
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date set forth above.
SHILOH INDUSTRIES, INC.
By: /s/ John F. Falcon
-------------------------------
Name: John F. Falcon
Title:
SHILOH AUTOMOTIVE, INC.
By: /s/ John F. Falcon
-------------------------------
Name: John F. Falcon
Title:
MTD PRODUCTS INC
By: /s/ Ronald C. Hauser
-------------------------------
Name: Ronald C. Hauser
Title:
9
<PAGE> 10
SCHEDULE ONE TO TRANSITIONAL SERVICES AGREEMENT
BY AND AMONG SHILOH INDUSTRIES, INC.,
SHILOH AUTOMOTIVE, INC.
AND MTD PRODUCTS INC
1. ELECTRONIC DATA INTERCHANGE: Includes data mapping and translation,
problem resolution, trading partner administration, maintaining Future 3
software, business process integration, and maintaining all compute hardware and
all telecommunications hardware required to support the EDI processes.
2. DESKTOP AND SOFTWARE SUPPORT: Includes maintaining all hardware and
software in good working condition and all licenses at the appropriate levels.
3. TELECOMMUNICATIONS, INCLUDING TELEPHONE, FACSIMILE TRANSMISSIONS AND
EMAIL, AND ALL DATA NETWORKS: Includes maintaining all local area networks,
frame relay network, shop floor communications and performing all adds, changes
and moves for the phone system.
4. SHOP FLOOR DATA COLLECTION: Includes maintaining all hardware and
software associated with the shop floor systems.
5. LABOR DATA COLLECTION: Includes completing the installation of the
shop floor system and fully training all users in the use of these systems.
6. PAYROLL: Includes maintaining all payroll functions for both hourly
and salaried employees.
7. INVENTORY SYSTEMS: Includes providing hardware and software support.
8. ENGINEERING SYSTEMS: Includes providing hardware and software
support.
In addition to the foregoing, the Seller shall provide or cause to be
provided help desk functions to the Division during the Term. Also, the Seller
shall provide Parent and Buyer with assistance with respect to any of the
foregoing or any other computer processing or operational system of the Division
to the extent reasonably requested consistent with past practices.
<PAGE> 1
Exhibit 21.1
LIST OF SUBSIDIARIES OF SHILOH INDUSTRIES, INC.
The following is a list of the subsidiaries of Shiloh
Industries, Inc., a Delaware corporation (the "Corporation"). The common stock
of all the corporations listed below is wholly owned, directly or indirectly, by
the Corporation. If indented, the corporation is a wholly owned subsidiary of
the corporation under which it is listed unless otherwise noted.
NAME OF CORPORATION STATE OF INCORPORATION
Shiloh Corporation Ohio
The Sectional Die Company Ohio
Sectional Stamping, Inc. Ohio
Valley City Steel Company(1) Ohio
Medina Blanking, Inc.(2) Ohio
Liverpool Coil Processing, Incorporated Ohio
Greenfield Die & Manufacturing Corporation Ohio
C&H Design Company Michigan
Jefferson Blanking, Inc. Georgia
Shiloh Automotive, Inc. Ohio
Shiloh de Mexico Mexico
The Corporation also owns an 80% equity interest in Shiloh of
Michigan, L.L.C., a Michigan limited liability company. The Corporation owns a
19.75% equity interest in Bing Banking L.L.C., a Michigan limited liability
company.
- --------
(1) Valley City Steel Company is 49% owned by the Corporation and 51% owned
by Shiloh Corporation.
(2) Medina Blanking, Inc. is 22% owned by the Corporation, 22% owned by
Shiloh Corporation and 56% owned by Valley City Steel Company.
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 (No. 333-21161) of Shiloh Industries, Inc. of our report
dated December 9, 1999 relating to the financial statements and financial
statement schedule appearing on Page 23 of this Annual Report on Form 10-K. We
also consent to the reference to our firm under the caption "Selected Financial
Data."
/s/ PricewaterhouseCoopers LLP
Cleveland, Ohio
January 27, 2000
<PAGE> 1
Exhibit 24.1
------------
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned
directors and officers of Shiloh Industries, Inc., a Delaware corporation,
hereby constitutes and appoints John F. Falcon, Craig A. Stacy and Thomas C.
Daniels, and each of them, as the true and lawful attorney or attorneys-in-fact,
with full power of substitution and revocation, for each of the undersigned and
in the name, place and stead of each of the undersigned, to sign on behalf of
each of the undersigned an Annual Report on Form 10-K for the fiscal year ended
October 31, 1999 pursuant to Section 13 of the Securities Exchange Act of 1934
and to sign any and all amendments to such Annual Report, and to file the same,
with all exhibits thereto, and other documents in connection therewith,
including, without limitation, a Form 12b-25, with the Securities and Exchange
Commission, granting to said attorney or attorneys-in-fact, and each of them,
full power and authority to do so and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as the undersigned might or could do in person, hereby
ratifying and confirming all that said attorney or attorneys-in-fact or any of
them or their substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
This Power of Attorney may be executed in multiple
counterparts, each of which shall be deemed an original with respect to the
person executing it.
Executed as of this 17th day of January 2000.
/s/ Dominick C. Fanello /s/ James C. Fanello
- ----------------------------------- ----------------------------------
Dominick C. Fanello James C. Fanello
Vice Chairman of the Board and Director
Director
/s/ David J. Hessler /s/ Curtis E. Moll
- ----------------------------------- ----------------------------------
David J. Hessler Curtis E. Moll
Director Chairman of the Board and Director
/s/ James A. Karman /s/ Theodore K. Zampetis
- ----------------------------------- ----------------------------------
James A. Karman Theodore K. Zampetis
Director Director
/s/ Ronald C. Hauser /s/ Richard S. Gray
- ----------------------------------- ----------------------------------
Ronald C. Hauser Richard S. Gray
Director Director
/s/ John F. Falcon /s/ Craig A. Stacy
- ----------------------------------- ----------------------------------
John F. Falcon Craig A. Stacy
President, Chief Executive Treasurer and Chief Financial
Officer (Principal Executive Officer (Principal Financial
Officer) and Director and Accounting Officer)
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<FISCAL-YEAR-END> OCT-31-1999
<PERIOD-START> NOV-01-1998
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