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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
(MARK ONE)
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d)
[X] OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED MARCH 31, 1999
or
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
[ ] OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM _______ TO _______
COMMISSION FILE NUMBER 1-12282
CORRPRO COMPANIES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
OHIO 34-1422570
---- ----------
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
1090 ENTERPRISE DRIVE, MEDINA, OHIO 44256
----------------------------------- -----
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (330) 723-5082
SECURITIES REGISTERED PURSUANT SECURITIES REGISTERED PURSUANT TO
TO SECTION 12(b) OF THE ACT: SECTION 12(g) OF THE ACT:
COMMON SHARES WITHOUT PAR VALUE NONE
- ------------------------------- ----
(TITLE OF CLASS) (TITLE OF CLASS)
NEW YORK STOCK EXCHANGE
-----------------------
(NAME OF EACH EXCHANGE ON WHICH REGISTERED)
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
YES X NO
--- ---
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of the Registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. X
---
The aggregate market value of Common Shares held by nonaffiliates of the
Registrant was approximately $68,942,000 at May 25, 1999. (The aggregate market
value has been computed using the closing market price of the stock as reported
by the New York Stock Exchange on May 25, 1999.)
7,672,573
---------
(Number of shares of common stock outstanding as of May 25, 1999.)
DOCUMENTS INCORPORATED BY REFERENCE
The Company intends to file with the Securities and Exchange Commission a
definitive Proxy Statement pursuant to Regulation 14A of the Securities Exchange
Act of 1934 within 120 days of the close of its fiscal year ended March 31,
1999, portions of which document shall be deemed to be incorporated by reference
in Part I and Part III of this Annual Report on Form 10-K from the date such
document is filed.
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PART I
ITEM 1. BUSINESS
Corrpro Companies, Inc. was founded in 1984 and organized under the
laws of the State of Ohio. References herein to "Corrpro" or to the "Company"
are to Corrpro Companies, Inc. and its subsidiaries unless the context indicates
otherwise.
The Company provides corrosion control engineering and monitoring
services, systems and equipment to the infrastructure, environmental and energy
markets. Within the corrosion control market, Corrpro has a specialty in the
design, manufacture and application of cathodic protection systems. Cathodic
protection is an electrochemical process which prevents corrosion in new
structures and mitigates the corrosion process in existing structures.
Structures commonly protected against corrosion by the cathodic protection
process include above and underground storage tanks, offshore platforms, ships,
electric power plants, bridges, oil and gas pipelines, parking garages, transit
systems and water and waste treatment equipment. Due to its ability to mitigate
corrosion, cathodic protection can provide a cost effective alternative to
replacement of corroding structures.
The Company has expanded its presence in the domestic and international
corrosion control markets through internal growth and acquisitions. Eleven
strategic acquisitions were made between fiscal 1987 and fiscal 1995. The
following acquisitions were made subsequent to fiscal 1995: Cathodic Protection
Services Company (CPS) (fiscal 1998); Corrosion Interventions Ltd. (fiscal
1999); Wilson Walton International Australia Operations (fiscal 1999); Basco
Group (fiscal 1999); Oilfield Electronics Ltd. (D.C. Corrosion) (fiscal 1999);
Bass-Trigon Software LLC (fiscal 1999); Consulex Corporation (fiscal 1999);
Westcor Engineering Pty. Ltd. (fiscal 1999). A brief description of the more
significant of these acquisitions is provided below:
CPS
Effective July 1, 1997, the Company acquired all the outstanding shares
of capital stock of Cathodic Protection Services Company ("CPS"). CPS, which was
based in Houston, Texas, provides materials and services for the evaluation,
design, installation, and maintenance of cathodic protection services.
Wilson Walton Australia
Effective July 1, 1998, the Company acquired certain assets and assumed
certain liabilities of the group of companies referred to as Wilson Walton
Australia (now Corrpro Australia). Corrpro Australia provides products and
services for the evaluation, design, installation and maintenance of corrosion
protection systems in Australia, New Zealand and Papua, New Guinea.
Basco Group
Effective August 1, 1998, the Company acquired all the outstanding
shares of capital stock of the Basco Group of companies ("Basco"). Basco, which
is based in the United Kingdom, provides corrosion protection engineering
services, materials and equipment primarily in Europe.
D.C. Corrosion
Effective March 1, 1999, the Company acquired certain assets and
assumed certain liabilities of D.C. Corrosion Corporation. The D.C. Corrosion
businesses, which are based in Alberta and Saskatchewan, Canada, provide
corrosion protection engineering services, materials and equipment primarily in
Western Canada.
See Note 2 to Notes to the Consolidated Financial Statements
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RECENT DEVELOPMENTS
In May 1999, the Company completed the acquisition of CSI Coating
Systems Inc. CSI Coating Systems Inc., which is based in Alberta, Canada,
provides specialty coatings application services such as custom shop coating as
well as field coating work on a variety of structures such as tanks, pipelines
and vessels.
GENERAL
In fiscal 1999, the Company adopted SFAS 131 "Disclosures About
Segments of an Enterprise and Related Information" which changed the way the
Company reports information about its operating segments. See Note 10 to Notes
to the Consolidated Financial Statements. The Company's operating segments and a
description of the products and services they provide are described below:
Domestic Core Operations. The Domestic Core Operations (which includes
all pre-fiscal 1994 acquisitions as well as CPS) consists of the U.S. offices
offering services which include contract research in various areas of corrosion
control, cathodic protection engineering services and general corrosion
engineering services associated with failure analysis, metallurgical problems
and material selection. This segment maintains advanced corrosion research and
testing laboratories in order to analyze the scope of a corrosion problem and to
recommend appropriate methods of corrosion control. The engineering services are
provided to private sector customers in the aerospace, defense, marine,
chemicals, petroleum and utilities industries and to governmental entities in
connection with water treatment and delivery systems, marine vessels, transit
systems, weapons and infrastructure assets. This sector also sells material and
equipment in conjunction with its services, and often sells these products to
other engineering and construction firms in connection with corrosion control
projects. Products sold include various cathodic protection anodes, rectifier
units and instrumentation, computer hardware and software for monitoring
corrosion, and accessory products. An additional service offered includes
combining the design, manufacture, installation and maintenance of cathodic
protection systems to customers who desire a "turnkey" response to their
corrosion protection needs. This operating unit also provides services for the
prevention of corrosion on the internal surfaces of water storage tanks and
waste water treatment equipment. These services are provided to municipal,
state, and federal government agencies and industrial customers. In total,
Corrpro's Domestic Core Operations accounted for approximately 57%, 50% and 44%
of the Company's revenues during fiscal 1999, 1998 and 1997, respectively.
Approximately 76% of this segment's revenue is attributable to service and 24%
to product in fiscal 1999, 70% service and 30% product in fiscal 1998 and 76%
service and 24% product in fiscal 1997.
Canadian Operations. This segment resulted from the combination of
Commonwealth Seager Group (CSG) and UCC Corporation (UCC) during fiscal 1995.
Corrpro's Canadian operations offer a combination of expertise in engineering,
construction and product supply in cathodic protection. In addition, this
operating unit provides material and equipment to customers in the oil and gas
industry with its primary focus on the needs of pipeline operators. The Canadian
Operation also specializes in pipeline integrity issues, and designs internal
inspection programs that are used to detect corrosion and pipe weld flaws, clean
pipelines, and confirm pipeline orientation. This segment accounted for
approximately 9%, 12% and 13% of the Company's revenues during fiscal 1999, 1998
and 1997, respectively. Approximately 65% of this segment's revenue is
attributable to service and 35% to product in fiscal 1999, 65% service and 35%
product in fiscal 1998 and 66% service and 34% product in fiscal 1997.
European Operations. This segment provides corrosion engineering
services and equipment supply primarily to the marine, offshore and industrial
markets. In the marine market, this segment manufactures and supplies cathodic
protection systems for hulls and ballast tanks on new ships and those which are
in need of repair. In the offshore market, it provides cathodic protection
equipment for new and existing subsea pipelines, offshore drilling rigs and
production platforms. Having a manufacturing and distribution center in Europe
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enables it to serve many of Europe's major offshore oil production areas. In the
industrial market, it offers corrosion engineering, cathodic protection
equipment and installation services. This segment accounted for approximately
12%, 16% and 18% of the Company's revenues during fiscal 1999, 1998 and 1997,
respectively. Approximately 19% of this segment's revenue is attributable to
service and 81% to product in fiscal 1999, 7% service and 93% product in fiscal
1998 and 2% service and 98% product in fiscal 1997.
Other Operations. This segment consists of all other businesses
including those in the Middle East, Asia and Australia as well as the corrosion
monitoring equipment business. The businesses in the Middle East, Asia and
Australia provide corrosion engineering services and equipment supply to the
marine, offshore and industrial markets. The corrosion monitoring equipment
business provides corrosion engineering services and equipment supply for
monitoring internal corrosion on gas and liquid pipelines, storage vessels, well
casings and refining and process equipment. This segment accounted for
approximately 22%, 22%, and 25% of the Company's revenues during fiscal 1999,
1998 and 1997, respectively. Approximately 37% of this segment's revenue is
attributable to service and 63% to product in fiscal 1999, 33% service and 67%
product in fiscal 1998 and 23% service and 77% product in fiscal 1997.
SALES AND MARKETING
The Company markets its products and services in the United States and
Canada primarily through its sales personnel. The technical nature of its
products and services requires a highly trained, professional sales force, and,
as a result, many of the sales personnel have engineering or technical expertise
and experience. Because of the problem solving experience of its engineering
staff, advice from the technical personnel is regularly sought out by potential
and existing customers, resulting in business opportunities on an ongoing basis.
The Company's products and services are marketed in the Middle East,
Asia, Europe and South America by sales personnel operating out of its Saudi
Arabia, Singapore, United Kingdom, Bahrain, UAE, Hong Kong, Indonesia, Portugal
and U.S. offices. In addition, independent, foreign sales representatives are
used to supplement the efforts of its direct sales force and to market its
services in other regions of the world. The independent sales representatives
earn commissions on sales which vary by product and service type. Certain
products, rectifiers and corrosion monitoring equipment are marketed through
networks of both domestic and international distributors.
SOURCES AND AVAILABILITY OF RAW MATERIALS
Certain of the Company's operations convert raw aluminum, zinc and
magnesium metals to anode castings. The Company is currently able to obtain
adequate quantities of these metals, however the availability of these metals
could be limited by market conditions.
PATENTS AND LICENSES
The Company owns patents, patent applications and licenses relating to
certain of its products and processes. While the Company's rights under the
patents and licenses are of some importance to its operations, the Company's
businesses are not materially dependent on any one patent or license or on the
patents and licenses as a group.
SEASONAL TRENDS
The Company's business is somewhat seasonal as winter weather can
adversely impact its operations in the northern U.S., Canada and the United
Kingdom. Therefore, the Company's revenues during the fourth quarter of its
fiscal year (i.e. January through March) are typically lower than revenues
during each of the other three quarters.
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CUSTOMERS
Sales are made to a broad range of customers. During the fiscal year
ended March 31, 1999 no one customer accounted for more than 10% of the
Company's sales. The Company does not believe that the loss of any one customer
would have a materially adverse effect on its business.
The Company sells products and services to the U.S. government and
agencies and instrumentalities thereof, including the U.S. Navy. Sales to these
customers accounted for approximately 3%, 3% and 4% of the Company's net sales
during fiscal 1999, 1998 and 1997, respectively. The Company's contracts with
the U.S. government contain standard provisions permitting the government to
terminate such contracts without cause. In the event of termination, the Company
is entitled to receive reimbursement on the basis of the work completed (cost
plus a reasonable profit). These contracts are also subject to renegotiation of
profits. The Company has no knowledge of any pending or threatened termination
of any of its material government contracts or subcontracts. In addition,
government procurement programs are subject to budget cutbacks and policy
changes that could alter the demand for the Company's products. Accordingly, the
Company's future sales to the government are subject to these budgetary and
policy changes.
BACKLOG
The backlog of unshipped orders was approximately $63 million as of
March 31, 1999 and 1998 and $59 million as of March 31, 1997. Backlog is
generally represented by purchase orders that may be terminated under certain
conditions. However, the actual use of purchase orders by the Company's
customers as well as timing of the issuance of such purchase orders can vary
significantly. Accordingly, the Company does not believe backlog is a good
predictor of future revenue trends, as based on its recent experience, there is
not a direct correlation between changes in backlog and changes in revenue. The
backlog has remained flat between 1999 and 1998. The increase in backlog between
1998 and 1997 was primarily the result of the CPS acquisition. The Company
estimates that, based on recent experience, approximately 70% of its backlog of
orders at March 31, 1999 will be filled during the fiscal year ending March 31,
2000.
COMPETITIVE CONDITIONS
The Company competes principally on the basis of quality, technical
expertise, customer service and product innovation. Because many different types
of businesses use one or more of the methods of corrosion protection, the
corrosion control market includes many companies which could be considered
competitors, even though only a few of these companies offer the broad range of
corrosion control engineering services, systems and products offered by the
Company. Within the cathodic protection market, the Company faces competition
primarily from smaller domestic and international companies. The Company
believes that no other company currently offers the comprehensive services that
it provides, however, competition in all areas of the corrosion control industry
is likely to increase as the demand for corrosion control products and services
grows and more companies enter the market and expand the range of their
services. In that regard, the Company's competitors may in some cases have
substantially greater financial, technical and marketing resources than those of
the Company.
RESEARCH AND DEVELOPMENT
The Company's engineering and product development activities are
primarily directed toward designing new products and services to meet customers'
specific requirements. Product development costs amounted to approximately
$563,000, $694,000, and $783,000 during fiscal years 1999, 1998 and 1997,
respectively.
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GOVERNMENT REGULATIONS
The Company believes that its current operations and its current use of
property, plant and equipment conform in all material respects to applicable
laws and regulations. The Company has not experienced, nor does it anticipate,
any material claim or material capital expenditure in connection with
environmental laws and other regulations.
EMPLOYEES
As of March 31, 1999, the Company had 1,234 employees 441 of whom were
located outside the United States.
FOREIGN OPERATIONS
The Company's foreign subsidiaries generally conduct business in local
currency. In addition, foreign sales activities are subject to other customary
risks of operating in a global environment, such as unstable political
situations, the effect of local laws and taxes, tariff increases and regulations
and requirements for export licenses, the potential imposition of trade or
foreign exchange restrictions and transportation delays.
ITEM 2. PROPERTIES
As of March 31, 1999, eight locations were owned by the Company and
approximately sixty locations were leased from unrelated third parties. Certain
property locations may contain multiple operations, such as an office and
warehouse facility.
The real properties owned by the Company are: its corporate
headquarters located in Medina, Ohio (8,000 sq. ft.); an office and
manufacturing facility located in Medina, Ohio (64,000 sq. ft.); an office and
warehouse facility located in Schaumburg, Illinois (10,000 sq. ft.); an office
and warehouse facility located in Edmonton, Alberta (52,000 sq. ft.); two office
and warehouse facilities located in Estevan, Saskatchewan (10,600 sq. ft.); an
office, manufacturing and warehouse facility located in Stockton-on-Tees, UK
(34,000 sq. ft.); and an office and warehouse facility in Eastleigh, Hants, UK
(5,700 sq. ft.). The principal real properties (over 5,000 sq. ft. of floor
space) leased by the Company from unrelated third parties are: an office and
warehouse facility located in Glendale, Arizona; an office and warehouse
facility located in Conyers, Georgia; an office facility located in Ocean City,
New Jersey; an office and warehouse facility located in West Chester,
Pennsylvania; an office and warehouse facility located in Houston, Texas; an
office, manufacturing and warehouse facility located in Santa Fe Springs,
California; an office and warehouse facility located in Belle Chasse, Louisiana;
an office and warehouse facility located in Billings, Montana; an office and
warehouse facility located in Liberal, Kansas; an office and warehouse facility
in Midland, Texas; an office and warehouse facility in Mississauga, Ontario; an
office and warehouse facility in San Leandro, California; an office,
manufacturing and warehouse facilities in Sand Springs, Oklahoma; an office and
warehouse facility in Union, New Jersey; an office and warehouse facility in
Brisbane, Australia; an office and warehouse facility in Melbourne, Australia;
an office and warehouse facility in Perth, Australia; an office and warehouse
facility in Sydney, Australia; an office and manufacturing facility located in
Sharjah, UAE; an office facility located in Singapore; a manufacturing facility
in Johor Baharu, Malaysia; an office and warehouse facility in Jakarta,
Indonesia; and an office, manufacturing and warehouse facility in Dammam, Saudi
Arabia.
The Company considers the properties owned or leased by it to be
generally sufficient to meet its requirements for office, manufacturing and
warehouse space. With the exception of its manufacturing facility in
Stockton-on-Tees, the Company does not consider any one of its properties to be
material, since it believes that if it becomes necessary or desirable to
relocate any of its office, manufacturing and warehouse facilities, other
suitable properties could be found.
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ITEM 3. LEGAL PROCEEDINGS
Although in the Company's opinion the following claim is without merit
and will have no material effect on the Company, disclosure is being made in
order to comply with applicable requirements of the Securities and Exchange
Commission. The Company is a defendant in a complaint filed on November 12,
1998, as subsequently amended, in United States District Court, Northern
District of Ohio, Eastern Division. The lawsuit arises out of adoption by the
Environmental Protection Agency ("EPA") and the American Society for Testing and
Materials ("ASTM") of regulations permitting non-invasive methods for inspecting
and testing underground storage tanks. Prior to adoption of such regulations,
underground storage tanks were inspected by visual manned inspections. After
convening a task force to study the issue, the EPA and ASTM recognized several
other methods of tank assessment, including statistical and analytical methods
used by the Company and other corrosion control service providers. The
plaintiffs in the lawsuit, Armor Shield, Inc. and Doublewall Retrofit Systems,
Inc., have claimed that the methods used by the Company are not as protective of
human health and the environment as internal manned tank inspection, that ASTM
procedures were manipulated and that EPA approval was obtained fraudulently. The
plaintiffs, which provide internal manned inspection and lining services and
equipment, have claimed violations of federal and state anti-trust laws,
unreasonable restraint of trade, false advertising and unfair competition, which
allegedly caused injury to their businesses and property in excess of $30
million. They are seeking damages and injunctive relief. The complaint also
names, among others, an executive officer of the Company and a director of the
Company.
The Company believes that the claims are without merit and has filed a
motion to dismiss the anti-trust claim for failure to state a claim and on the
basis that there has been no injury to competition. The Company denies any
allegations of wrongdoing and is preparing to vigorously defend the claims.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
There were no matters submitted to a vote of security holders during
the fourth quarter of fiscal 1999.
ITEM 4A. EXECUTIVE OFFICERS OF THE COMPANY
The following table sets forth the names of all executive officers of
the Company and certain other information relating to their position held with
the Company and other business experience.
EXECUTIVE OFFICER AGE RECENT BUSINESS EXPERIENCE
- ----------------- --- --------------------------
Joseph W. Rog 59 Chairman of the Board of Directors since
June 1993 and Chief Executive Officer
since the Company's formation in 1984.
President of the Company since June 1995
and from January 1984 to June 1993.
Michael K. Baach 44 Executive Vice President since April
1993, Assistant Secretary since June 1995
and Senior Vice President since 1992.
Prior to that, Mr. Baach was Vice
President of Sales and Marketing since
the Company's formation in 1984.
George A. Gehring, Jr. 55 Executive Vice President since April 1993
and Senior Vice President since 1991.
Prior to that, Mr. Gehring served as
President of Ocean City Research
Corporation.
David H. Kroon 49 Executive Vice President since April 1993
and Senior Vice President since the
Company's formation in 1984.
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Barry W. Schadeck 48 Executive Vice President since June 1995
and President of Corrpro Canada, Inc., a
wholly-owned subsidiary of the Company,
since its formation in May 1994. Prior to
that, Mr. Schadeck served as President
since April 1993 and Chief Financial
Officer since 1979 of the Company's
Commonwealth Seager Group subsidiary.
Neal R. Restivo 39 Executive Vice President, Chief Financial
Officer, Secretary and Treasurer since
March 1998. Senior Vice President, Chief
Financial Officer, Secretary and
Treasurer since October 1995. From
November 1989 to September 1995, Mr.
Restivo was with Waxman Industries, Inc.,
most recently as Senior Vice President,
Finance and Chief Financial Officer.
Prior to that, from August 1982 to
November 1989, Mr. Restivo was employed
by Arthur Andersen LLP, where he was an
Audit Manager since 1988.
Michael R. Tighe 46 Senior Vice President Eastern
International Operations since October
1998. Senior Vice President since January
1994. Prior to that, Mr. Tighe was
President and General Manager of Elgard
Corporation, an anode manufacturer.
Mozelle T. Jackson 32 Vice President and Corporate Controller
since July 1996. Corporate Controller
since December 1995. Prior to that Ms.
Jackson was with Waxman Industries, Inc.
most recently as Vice President,
Corporate Controller. Ms. Jackson had
prior experience with the Allen Group
Inc. and Arthur Andersen LLP.
John D. Moran 41 General Counsel and Assistant Secretary
since December 1996 and Vice President
since October 1998. Prior to that, Mr.
Moran was in-house counsel for Sealy
Corporation for ten years and served as
Secretary. Mr. Moran had prior experience
with Grant Thornton.
James W. DeLong 53 Vice President Human Resources since
January 1999. From 1994 to 1999, Mr.
DeLong was Vice President, International
Human Resources with Rubbermaid Inc. and
from 1972 to 1994, Continental General
Tire as Director, Compensation and
Benefits, and Director, International
Human Resources.
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PART II
ITEM 5. MARKET FOR COMPANY'S COMMON STOCK AND RELATED SECURITY HOLDER MATTERS
PRICE RANGE OF COMMON SHARES
The Company's Common Shares are listed on the New York Stock Exchange
("NYSE") under the symbol "CO". The following table sets forth the high and low
closing sale prices for the Common Shares on the NYSE for the fiscal periods
indicated.
<TABLE>
<CAPTION>
FISCAL 1999 FISCAL 1998
----------- -----------
HIGH LOW HIGH LOW
---- --- ---- ---
<S> <C> <C> <C> <C>
First Quarter $ 12.75 $ 11.25 $ 8.00 $ 6.70
Second Quarter 12.00 10.00 10.35 7.50
Third Quarter 13.00 9.25 12.20 9.80
Fourth Quarter 12.50 11.13 11.90 10.40
</TABLE>
The above information reflects the five-for-four stock split that was effected
via a stock dividend payable June 19, 1998 to shareholders of record as of June
5, 1998.
HOLDERS OF RECORD
On May 25, 1999, there were 236 holders of record of the Company's
Common Shares.
DIVIDENDS
In recent years, the Company has not paid any cash dividends on its
Common Shares. The Company currently anticipates that it will retain all future
earnings for use in its business and does not anticipate paying any cash
dividends in the foreseeable future. Provisions within the Company's domestic
bank credit agreement and Senior Note Indenture limit the amount of cash
dividends the Company can pay.
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ITEM 6. SELECTED FINANCIAL DATA
<TABLE>
<CAPTION>
FISCAL YEAR ENDED MARCH 31,
---------------------------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
1999 1998 1997 1996 1995 1994
---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
STATEMENT OF INCOME DATA:
Revenues $ 188,690 $ 172,653 $ 139,604 $ 127,773 $ 118,515 $ 69,536
Cost of sales 128,761 121,337 97,813 94,609 82,118 45,833
--------- --------- --------- --------- --------- ---------
Gross profit 59,929 51,316 41,791 33,164 36,397 23,703
Selling, general and administrative expenses 41,875 37,396 30,421 31,322 29,557 16,206
Unusual items - - 1,700 4,368 - 1,622
--------- --------- --------- --------- --------- ---------
Operating income (loss) 18,054 13,920 9,670 (2,526) 6,840 5,875
Interest expense 3,896 2,434 1,696 1,937 888 887
--------- --------- --------- --------- --------- ---------
Income (loss) from continuing operations before
income taxes, extraordinary charge and
cumulative effect of change in accounting
principle 14,158 11,486 7,974 (4,463) 5,952 4,988
Income tax provision (benefit) 5,663 4,595 3,167 (1,056) 2,661 2,282
--------- --------- --------- --------- --------- ---------
Income (loss) from continuing operations before
extraordinary charge and cumulative effect of
change in accounting principle 8,495 6,891 4,807 (3,407) 3,291 2,706
Discontinued operations:
Loss from operations, net of tax benefit - - (1,037) (1,735) (455) -
Loss on disposal, net of tax benefit (3,998) - (3,960) - - -
Extraordinary charge, net of tax benefit (246) - - (70) - (102)
Cumulative effect on prior years of change
in accounting principle - - - - - 136
--------- --------- --------- --------- --------- ---------
Net income (loss) $ 4,251 $ 6,891 $ (190) $ (5,212) $ 2,836 $ 2,740
========= ========= ========= ========= ========= =========
EARNINGS PER SHARE - BASIC:
Income (loss) from continuing operations before
extraordinary charge $ 1.08 $ 0.85 $ 0.58 $ (0.44) $ 0.46 $ 0.73
Discontinued operations:
Loss from operations, net of tax benefit - - (0.12) (0.22) (0.06) -
Loss on disposal, net of tax benefit (0.51) - (0.48) - - -
Extraordinary charge, net of tax benefit (0.03) - - (0.01) - (0.03)
Cumulative effect of change in accounting
principle - - - - - 0.04
--------- --------- --------- --------- --------- ---------
Net income (loss) $ 0.54 $ 0.85 $ (0.02) $ (0.67) $ 0.40 $ 0.74
========= ========= ========= ========= ========= =========
Weighted average number of Common Shares
Outstanding - Basic (1) 7,851 8,155 8,266 7,764 7,164 3,681
EARNINGS PER SHARE - DILUTED:
Income (loss) from continuing operations before
extraordinary charge $ 1.03 $ 0.81 $ 0.57 $ (0.44) $ 0.39 $ 0.53
Discontinued operations:
Loss from operations, net of tax benefit - - (0.12) (0.22) (0.05) -
Loss on disposal, net of tax benefit (0.49) - (0.47) - - -
Extraordinary charge, net of tax benefit (0.03) - - (0.01) - (0.02)
Cumulative effect of change in accounting
principle - - - - - 0.03
--------- --------- --------- --------- --------- ---------
Net income (loss) $ 0.52 $ 0.81 $ (0.02) $ (0.67) $ 0.34 $ 0.54
========= ========= ========= ========= ========= =========
Weighted average number of Common Shares
Outstanding - Diluted (1) 8,224 8,468 8,486 7,764 8,334 5,034
MARCH 31,
---------
1999 1998 1997 1996 1995 1994
--------- --------- --------- --------- --------- ---------
BALANCE SHEET DATA:
Working capital, excluding net assets held for sale $ 59,044 $ 51,078 $ 35,082 $ 30,358 $ 31,229 $ 20,441
Total assets 147,595 136,275 106,918 107,398 108,758 67,858
Long-term debt, net of current portion 60,864 47,695 25,635 26,616 25,869 21,492
Shareholders' equity 58,056 57,961 54,676 54,281 56,060 24,301
</TABLE>
(1) Weighted average shares reflect the five-for-four stock split that was
effected via a stock dividend payable June 19, 1998 to shareholders of record as
of June 5, 1998.
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ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
GENERAL
This document contains certain statements, that constitute
"forward-looking statements" within the meaning of the Private Securities
Litigation Reform Act of 1995. Such forward-looking statements involve known and
unknown risks, uncertainties and other factors which may cause actual results,
performance or achievements of the Company to be materially different from any
future results, performance or achievements expressed or implied by such
forward-looking statements. Factors that might affect such forward-looking
statements include the Company's mix of products and services, timing of jobs,
the availability and value of larger jobs, the impact of weather on the
Company's operations, the Company's ability to successfully integrate acquired
businesses in a timely manner, the actual impact of the passing of the
underground storage tank upgrade deadline on the Company's business, the impact
of low energy prices on the Company's business and the impact of Year 2000.
During fiscal 1999, the Company benefited from the December 1998
regulatory deadline relating to the underground storage tank (UST) market.
Federal law mandated that all UST's meeting certain specified criteria must have
corrosion protection systems in place by December 22, 1998 or else they must be
replaced or closed. The Company provides such corrosion protection systems to
the UST market. In fiscal 1999, revenues relating to the UST market represented
approximately 14% of the Company's consolidated revenues. Although industry data
indicates that a number of UST's remain non-compliant after the December 1998
deadline, the Company believes there is confusion in the market as the
enforcement of the Federal Law has been pushed down to the states. The Company
believes this has caused the UST market to slow down sooner than management had
originally anticipated. The Company is currently reallocating resources that had
been dedicated to the UST market to other areas of its business. While the
Company does not believe that the passing of the December 1998 compliance
deadline will have a material impact on its long-term results of operations, it
does expect to experience some flatness in revenues and profitability,
particularly in the first quarter of fiscal 2000, as the process of reallocating
resources continues.
Another factor impacting the Company's business is the recent low
energy prices which have caused delays in capital projects as well as general
reductions in spending by certain of the Company's energy industry customers.
Although energy prices have started to firm up, the Company does not expect to
realize any benefit in the short-term. During periods of low energy prices, the
Company believes it can mitigate the impact on its service business by shifting
the mix from capital projects to maintenance-type work which is typically higher
margin. Although there can be no assurances, the Company believes that while low
energy prices may impact its revenues, they should not have a material impact on
its overall profitability.
OPERATING RESULTS OF THE COMPANY
YEAR ENDED MARCH 31, 1999 COMPARED TO YEAR ENDED MARCH 31, 1998
REVENUES
Revenues for fiscal 1999 totaled $188.7 million compared with $172.7
million for fiscal 1998, an increase of 9.3%. The fiscal 1999 revenues include
full year results of CPS, which was acquired effective July 1, 1997 as well as
the results of Corrpro Australia, Basco, D.C. Corrosion and four smaller
acquisitions subsequent to their respective acquisition dates. Excluding the
impact of these acquisitions, management estimates that revenues were flat
between years.
11
<PAGE> 12
Revenues relating to the Domestic Core Operations increased 25.9%
during fiscal 1999 to $108.1 million. Approximately 76% of this segment's
revenues are attributable to service and 24% to product. A large portion of this
segment's growth related to the providing of corrosion protection systems to the
underground storage tank (UST) market. Growth was also achieved in the other
components of the segment's service business. The growth achieved by the
Domestic Core Operations was offset, in part, by the impact of low energy prices
as discussed above.
Revenues relating to the Canadian Operations were down 19.5% during
fiscal 1999 and totaled $16.0 million. The impact of D.C. Corrosion, which was
acquired effective February 1, 1999, on the segment's results was not
significant. Approximately 65% of this segment's revenues are attributable to
service and 35% to product. The Canadian Operation's revenues were impacted by
low energy prices which caused certain capital projects to be put on hold. As a
result, the segment's business mix shifted from new capital projects to more
maintenance-type work which generates lower revenues but typically carries
higher margins.
Revenues relating to the European Operations were down 19.2% during
fiscal 1999 and totaled $21.9 million. Current year results include Basco
subsequent to the August 1, 1998 effective date of the acquisition. The results
of Basco are no longer separable due to the integration of Basco's operations.
Approximately 19% of this segment's revenues are attributable to service and 81%
to product. In the prior year, the European Operations benefited from several
large offshore contracts that expired at the end of fiscal 1998. In addition,
the segment's operations have been negatively impacted by low oil prices which
have decreased demand for the segment's lower margin products in the North Sea
region. The Company's primary focus in Europe is to further develop its service
business in that region. The efforts in this area continued to be successful in
fiscal 1999 as growth was achieved in the European service business.
Revenues relating to Other Operations, which includes the Company's
operations in the Middle East, Asia and Australia as well as its corrosion
monitoring equipment business, increased 7.1% in fiscal 1999 to $42.7 million.
Current year results include Corrpro Australia subsequent to the July 1, 1998
effective date of the acquisition. Excluding the impact of this acquisition, the
segment's revenues decreased 8.0%. This decrease relates to a decline in the
corrosion monitoring equipment business, which has been impacted by low energy
prices, as well as weak economic conditions in Asia.
GROSS PROFIT
On a consolidated basis, the Company's gross profit for fiscal 1999
totaled $59.9 million (or 31.8% of revenues) compared to $51.3 million (or 29.7%
of revenues) for fiscal 1998, an increase in gross profit dollars of 16.8%. The
improvement in gross margins relates to the higher percentage of service
revenues achieved in fiscal 1999 as well as a more profitable mix of service
revenues.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSE
S,G&A expense for fiscal 1999 totaled $41.9 million (or 22.2% of
revenues) compared with $37.4 million (or 21.7% of revenues) for fiscal 1998, an
increase of 12.0%. Excluding the impact of acquisitions, management estimates
that operating expenses increased approximately 1% between years.
OPERATING INCOME
Operating income for fiscal 1999 totaled $18.1 million compared with
$13.9 million during fiscal 1998, an increase of 29.7%.
12
<PAGE> 13
INTEREST EXPENSE
Interest expense for fiscal 1999 totaled $3.9 million compared to $2.4
million for fiscal 1998. The increase relates primarily to increased borrowings
in connection with the seven acquisitions completed during fiscal 1999.
INCOME TAX PROVISION
The Company recorded a provision for income taxes of $5.7 million for
fiscal 1999 compared to $4.6 million for fiscal 1998. The effective tax rate for
both fiscal 1999 and 1998 was 40.0%. See Note 6 to Notes to Consolidated
Financial Statements for reconciliation of the Company's effective tax rates.
INCOME FROM CONTINUING OPERATIONS BEFORE EXTRAORDINARY CHARGE
Income from continuing operations before extraordinary charge for
fiscal 1999 totaled $8.5 million compared with $6.9 million in fiscal 1998, an
increase of 23.3%. Earnings per share increased 27.1% to $1.08 ($1.03 diluted)
in fiscal 1999 compared with 85 cents (81 cents diluted) in fiscal 1998.
DISCONTINUED OPERATIONS
During the second quarter of fiscal 1999, the Company recorded a $4.0
million charge, net of tax benefit, relating to its foundry operation in
Louisiana, which had been reported as a discontinued operation since March 1997.
The charge represented an addition to the estimated loss on disposal. The
disposition of this operation was completed in March 1999.
EXTRAORDINARY CHARGE
During the fourth quarter of fiscal 1999, the Company recorded a $0.2
million extraordinary charge, net of tax benefit, relating to the accelerated
amortization of deferred financing costs associated with a bank credit facility
that was refinanced in March 1999.
NET INCOME
After giving effect to the discontinued operation charge of $4.0
million and the extraordinary charge of $0.2 million, net income for fiscal 1999
totaled $4.3 million, compared with $6.9 million for fiscal 1998.
YEAR ENDED MARCH 31, 1998 COMPARED TO YEAR ENDED MARCH 31, 1997
REVENUES
Revenues for fiscal 1998 totaled $172.7 million compared with $139.6
million for fiscal 1997, an increase of 23.7%. The fiscal 1998 revenues included
the results of CPS, which was acquired effective July 1, 1997. The results of
CPS are not separable due to the integration of CPS' operations. Excluding the
impact of the CPS acquisition, management estimates that revenues increased
approximately 10%.
Revenues relating to the Domestic Core Operations increased 38.6%
during fiscal 1998 to $85.8 million. Approximately 70% of this segment's
revenues were attributable to service and 30% to product. The fiscal 1998
revenues included the results of CPS, which was acquired effective July 1, 1997.
The results of CPS are not separable due to the integration of CPS' operations.
13
<PAGE> 14
Revenues relating to the Canadian Operations were up 5.7% during fiscal
1998 and totaled $19.9 million. Approximately 65% of this segment's revenues
were attributable to service and 35% to product. The increase in revenues
related to several large construction related contracts completed in fiscal
1998.
Revenues relating to the European Operations were up 10.6% during
fiscal 1998 and totaled $27.1 million. Approximately 7% of this segment's
revenues were attributable to service and 93% to product. In fiscal 1998, the
European Operations benefited from several large offshore contracts that expired
at the end of fiscal 1998.
Revenues relating to Other Operations increased 16.0% in fiscal 1998 to
$39.9 million. Approximately 33% of this segment's revenues were attributable to
service and 67% to product. The increase in revenues was due, in part, to growth
in the international markets, primarily in the Middle East and Asia Pacific
markets.
GROSS PROFIT
The Company's gross profit for fiscal 1998 totaled $51.3 million (or
29.7% of revenues) compared to $41.8 million (or 29.9% of revenues) for fiscal
1997, an increase in gross profit dollars of 22.8%. The lower margin percentages
resulted primarily from mix differences between years. In addition, as a result
of the acquisition of CPS, the Company had a larger component of
construction-related business in fiscal 1998, which typically had lower gross
profit margins than the Company's other engineering services business.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSE
S,G&A expense for fiscal 1998 totaled $37.4 million (or 21.7% of
revenues) compared to $30.4 million (or 21.8% of revenues) for fiscal 1997, an
increase of 22.9%. The increase related to CPS as well as higher levels of
business activity.
UNUSUAL ITEMS
During fiscal 1997, the Company recorded a net unusual charge totaling
$1.7 million. The unusual charge included a $2.4 million charge related to the
final settlement of the securities and class action and shareholder derivative
lawsuits filed in 1995, offset by a $0.7 million gain on the sale of a small
non-core business.
OPERATING INCOME
Operating income for fiscal 1998 totaled $13.9 million compared with
$9.7 million during fiscal 1997, an increase of 44.0%. The fiscal 1997 results
included an unusual charge of $1.7 million. Excluding the impact of the
prior-year unusual charge, operating income increased 22.4% between years.
INTEREST EXPENSE
Interest expense for fiscal 1998 totaled $2.4 million compared to $1.7
million for fiscal 1997. The increase related primarily to increased borrowings
in connection with the CPS acquisition.
INCOME TAX PROVISION
The Company recorded a provision for income taxes of $4.6 million for
fiscal 1998 compared to $3.2 million for fiscal 1997. The effective tax rate for
fiscal 1998 was 40.0% compared to 39.7% for fiscal 1997. See Note 6 to Notes to
Consolidated Financial Statements for reconciliation of the Company's effective
tax rates.
14
<PAGE> 15
INCOME FROM CONTINUING OPERATIONS
Income from continuing operations for fiscal 1998 totaled $6.9 million,
compared with $4.8 million in fiscal 1997.
DISCONTINUED OPERATIONS
The Company's operating loss from its discontinued foundry operation in
Louisiana totaled $1.0 million in fiscal 1997. The Company also recorded an
estimated loss on disposal of $4.0 million, net of tax benefit, relating to the
discontinued operation, in fiscal 1997.
NET INCOME
The Company had net income of $6.9 million for fiscal 1998 compared to
a net loss of $0.2 million for fiscal 1997.
LIQUIDITY AND CAPITAL RESOURCES
At March 31, 1999, the Company had working capital (excluding net
assets held for sale), of $59.0 million compared to $51.1 million at March 31,
1998, an increase of $7.9 million or 15.6%. Accounts receivable increased $8.5
million due to increased levels of business activity. Accounts payable decreased
$3.4 million which related primarily to a shift in the Company's business mix to
more maintenance-type work and lower levels of subcontracting. Approximately
$0.5 million of the increase in working capital related to the acquisitions.
During fiscal 1999, cash provided by operating activities totaled $2.2 million.
Cash used for investing activities totaled $19.4 million during fiscal
1999 which included $12.0 million related to acquisitions, $3.4 million for
capital expenditures. Cash generated by financing activities totaled $12.3
million during fiscal 1999 which included the refinancing of the domestic credit
facility of $30.0 million and initial borrowings of $29.0 million under the new
domestic credit facility. Financing activities also included net borrowings of
$14.4 million as well as $2.5 million of cash used to repurchase common shares.
On March 30, 1999, the Company entered into a new three-year, $80
million unsecured domestic revolving credit facility. The credit facility
consists of an $80 million revolver which expires on April 30, 2002. Initial
borrowings under the credit facility were used to repay existing domestic bank
indebtedness of approximately $30.0 million.
In addition to the domestic bank credit facility, the Company has
various smaller lines of credit with foreign banks which totaled approximately
$4.0 million. Total availability under the domestic and foreign credit
facilities at March 31, 1999 was approximately $53.9 million. The Company used
proceeds from its domestic and foreign credit facilities along with cash on hand
to fund the fiscal 1999 acquisitions. The Company was in compliance with all of
its debt covenants at March 31, 1999.
The Company believes that cash generated by operations and amounts
available under its domestic bank credit facility and foreign lines of credit
will be sufficient to satisfy the Company's liquidity requirements through at
least fiscal 2000.
CHANGES IN ACCOUNTING STANDARDS
In June 1997, the Financial Accounting Standards Board issued Statement
of Financial Accounting Standards (SFAS) No. 130, "Reporting on Comprehensive
Income." The Company was required to adopt SFAS 130 for the quarter ending June
30, 1998. Comprehensive income includes net income and other revenues, expenses,
gains, and losses that are excluded from net income but included as a component
of total shareholders'
15
<PAGE> 16
equity. Comprehensive income amounts for the Company are comprised of the effect
of foreign currency translation adjustments in accordance with SFAS No. 52,
"Foreign Currency Translation". The accumulated balance of foreign currency
translation adjustments, excluded from net income, is presented in the
Consolidated Balance Sheet and Statement of Shareholders' Equity as "Accumulated
other comprehensive income". As required, the Company adopted SFAS 130 for the
quarter ending June 30, 1999 and all prior periods have been restated to conform
with SFAS 130.
In fiscal 1999, the Company adopted SFAS 131, "Disclosures About
Segments of an Enterprise and Related Information", which changes the way the
Company reports information about its operating segments. The information for
all prior periods has been restated to conform with SFAS 131. Implementation of
this disclosure standard has not affected the Company's financial position or
results of operations.
In February 1998, the Financial Accounting Standards Board issued SFAS
132, "Employers' Disclosures About Pensions and Other Postretirement Benefits".
SFAS 132 revises disclosures about pension and other postretirement benefit
plans. It does not change the measurement or recognition of those plans. SFAS
132 was effective for years beginning after December 15, 1997. As required, the
Company adopted SFAS 132 for the year ending March 31, 1999.
In June 1998, the Financial Accounting Standards Board issued SFAS 133,
"Accounting for Derivative Instruments and Hedging Activities". SFAS 133
establishes accounting and reporting standards for derivative instruments and
for hedging activities. This Statement is effective for all quarters of fiscal
years beginning after June 15, 2000. Implementation of SFAS 133 is not expected
to affect the Company's financial position or results of operations.
EFFECT OF INFLATION AND FOREIGN CURRENCY TRANSLATION
The Company does not believe that inflation has had a significant
effect on the Company's results of operations for the periods presented.
The Company has not been significantly affected by currency
fluctuations or foreign exchange restrictions. Management believes that these
risks resulting from the Company's increased foreign sales are manageable.
YEAR 2000
The Company has developed plans to address possible exposures related
to the Year 2000 issue. The Company is considering the effect of Year 2000
issues on the services and products the Company provides, the processing
capabilities of the Company's computers and other internal information systems,
non-informational systems which effect the Company's operational capabilities,
and the key sources of supply of products and services to the Company. In
addition, the Company is addressing the status of its significant customers'
Year 2000 compliance.
State of Readiness
- ------------------
The Company has substantially completed its review of products and
services which could experience Year 2000 issues. The Company's business of
providing corrosion control engineering and other services does not inherently
involve software-resident Year 2000 issues for Corrpro's customers. The
substantial majority of company products are not date sensitive. With the
exception of several software components for which upgrades are available,
Corrpro believes that, during their estimated useful lives, unmodified products
containing software should not experience Year 2000 issues when used as
intended.
16
<PAGE> 17
In January 1999, the Company completed the implementation of a new
software upgrade which will be utilized by the majority of its U.S. operations.
In addition to addressing the Year 2000 issue, the new software provides
additional capabilities and functionality that will help enhance the Company's
business. Assessments of the Year 2000 compliance of software utilized by the
Company's other operations has been substantially completed and upgrades are
being implemented, as required.
The Company has completed a preliminary assessment of its
non-informational systems for Year 2000 compliance and is in the process of
determining the extent and scope of any remedial actions and impact on its
contingency plans. In addition, the Company has communicated with its key
suppliers, vendors and significant customers and requested information regarding
the status of their own Year 2000 compliance. Based on responses to date, the
Company has not been notified of any circumstances of its suppliers, vendors and
significant customers reasonably likely to have a material adverse impact on the
Company's operations.
Costs
- -----
The cost of implementing the new software upgrade for the Company's
U.S. operations, including the cost of Year 2000 compliance which is not
separately determinable, totaled approximately $1.5 million. Such costs have not
had a material adverse impact on the Company's financial position, results of
operations or cash flows. The majority of these costs have been incurred under
capital projects that will result in additional capabilities and functionality
while also addressing the Year 2000 issues. The Company is currently in the
process of estimating its other future Year 2000 costs. However, such costs are
not expected to be material.
Risks
- -----
If needed modifications or conversion of information and
non-information systems are not made on a timely basis, including third party
systems, or contingency plans not successfully implemented, the Company could
experience loss of revenue from customers whose operations are disrupted,
unavailability of materials, supplies, and services from its vendors whose
operations are disrupted, and difficulty in supplying its own products and
services on a timely basis. On a consolidated basis, no one customer accounts
for greater than 10% of the Company's revenue, and no one vendor supplies more
than 10% of the Company's purchases. On a regional or local basis, however, the
disruption of customer and vendor operations could more significantly adversely
affect such regional or local operations. In addition, if multiple customers or
vendors experienced disruption in their operations, the effect on the Company's
consolidated results could be materially impacted.
Contingency Plans
- -----------------
To mitigate the impact of potential Year 2000 issues, the Company is in
the process of developing contingency plans to address key business functions,
including relations with third parties. The Company expects to address possible
unremediated internal Year 2000 issues and further develop its contingency plans
in the event of disruption of its supplier or customer relations.
This information contains certain statements regarding the Year 2000
that constitute forward-looking statements within the meaning of the Private
Securities Litigation Reform Act of 1995. The Company expects that it will be
able to modify or replace the various systems effected by the Year 2000 issue in
time to avoid any material disruption to its operations; however, the dates of
completion and the costs of the project are based on management's estimates,
which were derived utilizing assumptions of future events, including the
availability of certain resources, third party modification plans and other
factors. There can be no guarantee that these estimates will be achieved, and if
the actual timing and costs differ materially from those anticipated, the
Company's financial results and financial condition could be materially
adversely affected. Management is keeping the Board of Directors informed as to
the status of the Company's Year 2000 related activities.
17
<PAGE> 18
ITEM 8. CONSOLIDATED FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
Begins on following page.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
Not applicable.
18
<PAGE> 19
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and Shareholders of Corrpro Companies, Inc.
We have audited the accompanying consolidated balance sheets of Corrpro
Companies, Inc. and subsidiaries (the Company) as of March 31, 1999 and 1998,
and the related consolidated statements of income, shareholders' equity, and
cash flows for each of the years in the three-year period ended March 31, 1999.
These consolidated financial statements are the responsibility of the Company's
management. Our responsibility is to express an opinion on these consolidated
financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present
fairly, in all material respects, the financial position of Corrpro Companies,
Inc. and subsidiaries as of March 31, 1999 and 1998, and the results of their
operations and their cash flows for each of the years in the three-year period
ended March 31, 1999, in conformity with generally accepted accounting
principles.
KPMG LLP
Cleveland, Ohio
May 10, 1999
19
<PAGE> 20
CORRPRO COMPANIES, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
MARCH 31, 1999 AND 1998
(In Thousands)
ASSETS
<TABLE>
<CAPTION>
1999 1998
---- ----
<S> <C> <C>
CURRENT ASSETS:
Cash and cash equivalents $ 3,957 $ 8,687
Accounts receivable, net 47,232 38,733
Inventories 27,518 24,458
Prepaid expenses and other 7,270 9,355
Net assets held for sale - 7,422
--------- ---------
Total current assets 85,977 88,655
--------- ---------
PROPERTY AND EQUIPMENT:
Land 539 547
Buildings and improvements 5,792 4,545
Equipment, furniture and fixtures 18,147 15,696
--------- ---------
24,478 20,788
Less accumulated depreciation (10,057) (8,278)
--------- ---------
Property and equipment, net 14,421 12,510
--------- ---------
OTHER ASSETS:
Goodwill, net 37,423 28,515
Other assets 9,774 6,595
--------- ---------
Total other assets 47,197 35,110
--------- ---------
$ 147,595 $ 136,275
========= =========
</TABLE>
The accompanying Notes to Consolidated Financial Statements
are an integral part of these balance sheets.
20
<PAGE> 21
CORRPRO COMPANIES, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
MARCH 31, 1999 AND 1998
(In Thousands, Except per Share Data)
LIABILITIES AND SHAREHOLDERS' EQUITY
<TABLE>
<CAPTION>
1999 1998
---- ----
<S> <C> <C>
CURRENT LIABILITIES:
Short-term borrowings $ 1,087 $ -
Current portion of long-term debt 1,148 683
Accounts payable 13,951 17,319
Accrued liabilities and other 10,747 10,113
--------- ---------
Total current liabilities 26,933 28,115
--------- ---------
LONG-TERM DEBT, NET OF CURRENT PORTION 30,864 17,695
SENIOR NOTES 30,000 30,000
DEFERRED INCOME TAXES 1,545 2,035
COMMITMENTS AND CONTINGENCIES - -
MINORITY INTEREST 197 469
SHAREHOLDERS' EQUITY:
Serial Preferred Shares, voting, no par value;
1,000 shares authorized and unissued - -
Common Shares, voting, no par value, stated value
$0.26 per share; 40,000 shares authorized; 8,453
and 8,413 shares issued in 1999 and 1998; 7,757 and
7,941 shares outstanding in 1999 and 1998 2,255 2,245
Additional paid-in capital 50,945 50,708
Accumulated earnings 12,915 8,664
--------- ---------
66,115 61,617
Accumulated other comprehensive income (loss) (1,413) 482
Common Shares in treasury, at cost (6,646) (4,138)
--------- ---------
Total shareholders' equity 58,056 57,961
--------- ---------
$ 147,595 $ 136,275
========= =========
</TABLE>
The accompanying Notes to Consolidated Financial Statements
are an integral part of these balance sheets.
21
<PAGE> 22
\
CORRPRO COMPANIES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
FOR THE YEARS ENDED MARCH 31, 1999, 1998 AND 1997
(In Thousands, Except per Share Data)
<TABLE>
<CAPTION>
1999 1998 1997
---- ---- ----
<S> <C> <C> <C>
Revenues $ 188,690 $ 172,653 $ 139,604
Cost of sales 128,761 121,337 97,813
--------- --------- ---------
Gross profit 59,929 51,316 41,791
Selling, general and administrative expenses 41,875 37,396 30,421
Unusual items - - 1,700
--------- --------- ---------
Operating income 18,054 13,920 9,670
Interest expense 3,896 2,434 1,696
--------- --------- ---------
Income from continuing operations before
income taxes and extraordinary charge 14,158 11,486 7,974
Provision for income taxes 5,663 4,595 3,167
--------- --------- ---------
Income from continuing operations before
extraordinary charge 8,495 6,891 4,807
Discontinued operations:
Loss from operations, net of tax benefit - - (1,037)
Loss on disposal, net of tax benefit (3,998) - (3,960)
--------- --------- ---------
Income (loss) before extraordinary charge 4,497 6,891 (190)
Extraordinary charge, net of tax benefit (246) - -
--------- --------- ---------
Net income (loss) $ 4,251 $ 6,891 $ (190)
========= ========= =========
Earning per share - Basic:
Income from continuing operations before
extraordinary charge $ 1.08 $ 0.85 $ 0.58
Discontinued operations:
Loss from operations, net of tax benefit - - (0.12)
Loss on disposal, net of tax benefit (0.51) - (0.48)
Extraordinary charge, net of tax benefit (0.03) - -
--------- --------- ---------
Net income (loss) $ 0.54 $ 0.85 $ (0.02)
========= ========= =========
Weighted average shares outstanding - Basic 7,851 8,155 8,266
========= ========= =========
Earning per share - Diluted:
Income from continuing operations before
extraordinary charge $ 1.03 $ 0.81 $ 0.57
Discontinued operations:
Loss from operations, net of tax benefit - - (0.12)
Loss on disposal, net of tax benefit (0.49) - (0.47)
Extraordinary charge, net of tax benefit (0.03) - -
--------- --------- ---------
Net income (loss) $ 0.52 $ 0.81 $ (0.02)
========= ========= =========
Weighted average shares outstanding - Diluted 8,224 8,468 8,486
========= ========= =========
</TABLE>
The accompanying Notes to Consolidated Financial Statements
are an integral part of these statements.
22
<PAGE> 23
CORRPRO COMPANIES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
FOR THE YEARS ENDED MARCH 31, 1999, 1998 AND 1997
(In Thousands, Except per Share Data)
<TABLE>
<CAPTION>
ACCUMULATED
COMMON OTHER
SHARES COMPRE- COMMON
SERIAL ($0.26 ADDITIONAL HENSIVE SHARES
PREFERRED STATED PAID-IN ACCUMULATED INCOME IN
SHARES VALUE) CAPITAL EARNINGS (LOSS) TREASURY* TOTAL
------ ------ ------- -------- ------ --------- -----
<S> <C> <C> <C> <C> <C> <C> <C>
March 31, 1996 $ - $ 2,196 $ 50,043 $ 1,963 $ 131 $ (52) $ 54,281
Comprehensive Income:
Net loss - - - (190) - - (190)
Cumulative translation adjustment - - - - 763 - 763
---
Total Comprehensive Income - - - - - - 573
Exercise of 158 stock options - 42 547 - - - 589
Repurchase of 109 Common Shares - - - - - (767) (767)
----------- -------- -------- -------- -------- -------- --------
March 31, 1997 - 2,238 50,590 1,773 894 (819) 54,676
Comprehensive Income:
Net income - - - 6,891 - - 6,891
Cumulative translation adjustment - - - - (412) - (412)
---
Total Comprehensive Income - - - - - - 6,479
Exercise of 25 stock options - 7 118 - - - 125
Repurchase of 332 Common Shares - - - - - (3,319) (3,319)
----------- -------- -------- -------- -------- -------- --------
March 31, 1998 - 2,245 50,708 8,664 482 (4,138) 57,961
Comprehensive Income:
Net income - - - 4,251 - - 4,251
Cumulative translation adjustment - - - - (1,895) - (1,895)
-----
Total Comprehensive Income - - - - - - 2,356
Exercise of 39 stock options - 10 237 - - - 247
Repurchase of 249 Common Shares - - - - - (2,833) (2,833)
Issuance of 26 shares - - - - - 325 325
----------- -------- -------- -------- -------- -------- --------
March 31, 1999 $ - $ 2,255 $ 50,945 $ 12,915 $ (1,413) $ (6,646) $ 58,056
=========== ======== ======== ======== ======== ======== ========
</TABLE>
*Shares held in treasury totaled 31 at March 31, 1996; 141 at March 31, 1997,
473 at March 31, 1998 and 696 at March 31, 1999.
The accompanying Notes to Consolidated Financial Statements
are an integral part of these statements.
23
<PAGE> 24
CORRPRO COMPANIES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE YEARS ENDED MARCH 31, 1999, 1998 AND 1997
(In Thousands)
<TABLE>
<CAPTION>
1999 1998 1997
---- ---- ----
<S> <C> <C> <C>
Cash flows from operating activities:
Net income (loss) $ 4,251 $ 6,891 $ (190)
Adjustments to reconcile net income (loss)
to net cash provided by continuing operations:
Depreciation and amortization 4,654 3,665 3,259
Deferred income taxes (776) 234 (529)
Gain on sale of assets - (173) (105)
Loss from discontinued operations - - 1,037
Loss on disposal of discontinued operations 3,998 - 3,960
Minority interest (265) (4) (47)
Changes in operating assets and liabilities,
net of effects of acquisitions:
Accounts receivable (4,819) (640) (3,556)
Inventories (2,069) (3,332) (3,128)
Prepaid expenses and other 2,727 (1,357) 3,634
Other assets (666) 212 206
Accounts payable and accrued expenses (6,151) 609 (1,147)
-------- -------- --------
Total adjustments (3,367) (786) 3,584
-------- -------- --------
Net cash provided by continuing operations 884 6,105 3,394
Net cash provided by discontinued operations 1,365 615 271
-------- -------- --------
Net cash provided by operations 2,249 6,720 3,665
-------- -------- --------
Cash flows from investing activities:
Additions to and disposals of property, plant and equipment (3,419) (2,596) (1,887)
Acquisitions, net of cash acquired (11,989) (15,023) -
Other assets (3,998) (265) (500)
-------- -------- --------
Net cash used for investing activities (19,406) (17,884) (2,387)
-------- -------- --------
Cash flows from financing activities:
Long-term debt, net 14,391 (4,644) (494)
Repayment of other debt 1,359 (396) (230)
Refinance of domestic credit facility (30,030) (26,619) -
Initial borrowings under new domestic credit facility 29,000 42,350 -
Issuance of Senior Notes - 30,000 -
Repayment of Term Loan - (20,000) -
Net proceeds from issuance of Common Shares 106 56 297
Repurchase of Common Shares, net (2,508) (3,319) (767)
-------- -------- --------
Net cash provided by (used for) financing activities 12,318 17,428 (1,194)
-------- -------- --------
Effect of changes in foreign currency exchange rates 109 (810) (100)
-------- -------- --------
Net increase (decrease) in cash (4,730) 5,454 (16)
Cash and cash equivalents at beginning of period 8,687 3,233 3,249
-------- -------- --------
Cash and cash equivalents at end of period $ 3,957 $ 8,687 $ 3,233
======== ======== ========
</TABLE>
The accompanying Notes to Consolidated Financial Statements
are an integral part of these statements.
24
<PAGE> 25
CORRPRO COMPANIES, INC. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE YEARS ENDED MARCH 31, 1999, 1998 AND 1997
(In Thousands, Except per Share Data)
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:
Consolidation and basis of presentation
The consolidated financial statements include the accounts of Corrpro
Companies, Inc. and its wholly-owned subsidiaries (the Company). All significant
intercompany accounts and transactions have been eliminated in consolidation.
Certain fiscal 1998 and 1997 amounts have been reclassified to conform with the
fiscal 1999 presentation.
The Company operates domestically and through subsidiaries
headquartered in Australia, Canada, United Kingdom, Saudi Arabia and Indonesia
with various other locations in Europe, the Middle East and Asia, which consists
of providing corrosion control engineering and monitoring services, systems and
equipment to the infrastructure, environmental and energy markets.
Cash and cash equivalents
The Company considers cash and all other highly liquid investments with
a maturity of three months or less at the time of purchase to be cash
equivalents.
Accounts receivable
Accounts receivable are presented net of allowances for doubtful
accounts of $2,503, $2,151 and $1,735 at March 31, 1999, 1998 and 1997,
respectively. Bad debt expense totaled $631, $498 and $498 in fiscal 1999, 1998
and 1997, respectively.
The Company performs ongoing credit evaluations of its customers'
financial condition. Corrosion control services and products are provided to a
large number of customers with no substantial concentration in a particular
industry.
Inventories
Inventories are valued at the lower of cost or market with cost being
determined on the first-in, first-out method. Inventories are stated net of
reserves for excess, slow moving and potentially obsolete materials. Inventories
consist of the following at March 31, 1999 and 1998:
<TABLE>
<CAPTION>
1999 1998
---- ----
<S> <C> <C>
Component parts and raw materials $13,264 $10,007
Work in process 2,891 1,908
Finished goods 11,363 12,543
------- -------
$27,518 $24,458
======= =======
</TABLE>
25
<PAGE> 26
Property and equipment
Property and equipment are stated at cost. Major renewals and
improvements are capitalized, while maintenance and repairs are expensed when
incurred. The cost and accumulated depreciation for property and equipment sold,
retired, or otherwise disposed of are removed from the accounts, and resulting
gains or losses are reflected in income.
Substantially all of the Company's operations compute depreciation on
the straight-line method. Depreciation for the Company's Canadian operations is
computed on the declining balance method. Estimated useful lives range from 25
to 40 years for buildings and from 4 to 10 years for equipment, furniture and
fixtures. Leasehold improvements are depreciated over the term of the lease. For
income tax reporting purposes, depreciation is computed principally using
accelerated methods.
Depreciation expense totaled $2,615, $2,107 and $1,905 in fiscal 1999,
1998 and 1997, respectively.
Goodwill, patents and other intangibles
Goodwill is being amortized on a straight-line basis, generally over 40
years. Goodwill amortization totaled $1,196, $967, and $777 in fiscal 1999, 1998
and 1997, respectively. Accumulated amortization was $4,644 and $3,448 at March
31, 1999 and 1998, respectively.
Included in patents and other intangibles are amortizable assets
consisting primarily of patents, trademarks and covenants not to compete. Such
assets, with a cost of $3,468 and $3,242 at March 31, 1999 and 1998,
respectively, are amortized on the straight-line method over their estimated
useful lives ranging from 4 to 20 years. Amortization expense for such assets
totaled $255, $282 and $345 in fiscal 1999, 1998 and 1997, respectively.
The Company uses an undiscounted cash flow method to periodically
review the net realizable value of goodwill and other intangible assets and
believes that such assets are realizable.
Fair value of financial instruments
The recorded value of cash and cash equivalents, receivables, payables,
accrued liabilities and short-term borrowings approximates fair value because of
the short maturity of these instruments. The recorded value of the Company's
long-term debt and Senior Notes is considered to approximate fair value based on
the borrowing rates currently available to the Company for loans with similar
terms and maturities.
Revenue recognition
The Company records income from construction and engineering contracts
under the percentage-of-completion method. Under this method, revenues are
recognized in proportion to the ratio of costs incurred to currently estimated
total contract costs. Estimated earnings and costs on contracts are subject to
revision throughout the terms of the contracts, and any required adjustments are
recorded in the periods in which revisions are made. Accounts receivable
includes $1,128 and $896 at March 31, 1999 and 1998, respectively, of amounts
billed but not paid by customers under retainage provisions of contracts.
Prepaid expenses and other includes $2,202 and $2,879 at March 31, 1999 and
1998, respectively, of amounts related to costs and estimated earnings in excess
of billings on uncompleted contracts. The Company recognizes revenue from
product sales upon transfer of ownership.
26
<PAGE> 27
Product development expenses
Expenditures for product development totaled approximately $563, $694
and $783 in fiscal 1999, 1998 and 1997, respectively.
Income taxes
Deferred taxes are provided on a liability method whereby deferred tax
assets are recognized for deductible temporary differences and operating loss
carry-forwards and deferred tax liabilities are recognized for taxable temporary
differences. Temporary differences are the differences between the reported
amounts of assets and liabilities and their tax bases. Deferred tax assets are
reduced by a valuation allowance when, in the opinion of management, it is more
likely than not that some portion or all of the deferred tax assets will not be
realized. Deferred tax assets and liabilities are adjusted for the effects of
changes in tax laws and rates on the date of enactment.
Unusual items
During fiscal 1997, the Company recorded an unusual charge totaling
$1,700. This amount included a $2,400 charge which represented litigation
related costs. The fiscal 1997 amount also included a $700 gain on the sale of a
non-core business operation. See Note 2.
Extraordinary charges
During fiscal 1999, the Company recorded a $246 extraordinary charge,
net of tax benefit of $164, as a result of accelerated amortization of deferred
financing costs associated with a bank credit facility that was refinanced in
March 1999.
Earnings per share
Basic EPS is computed by dividing net income for the period by the
weighted average number of shares of common shares outstanding for the period.
Diluted EPS is computed by dividing net income by the weighted average number of
shares of common shares and potential shares outstanding for the period. Stock
options are the only potential common shares and are considered in the Company's
diluted EPS calculation. Potential common shares are computed using the treasury
stock method.
Comprehensive Income
In June 1997, the Financial Accounting Standards Board issued Statement
of Financial Accounting Standards (SFAS) No. 130, "Reporting Comprehensive
Income". The Company was required to adopt SFAS 130 for the quarter ending June
30, 1998. All periods presented have been restated to conform with SFAS 130.
Comprehensive income includes net income and other revenues, expenses,
gains, and losses that are excluded from net income but included as a component
of total shareholders' equity. Comprehensive loss was $1,895 and $412 for the
years ended March 31, 1999 and 1998, and comprehensive income for the year ended
March 31, 1997 was $763. These amounts are comprised of the effect of foreign
currency translation adjustments in accordance with SFAS No. 52, "Foreign
Currency Translation". The accumulated balance of foreign currency translation
adjustments, excluded from net income, is presented in the Consolidated Balance
Sheet and Statement of Shareholders' Equity as "Accumulated other comprehensive
income".
27
<PAGE> 28
Foreign currency translation
The functional currency for each of the Company's foreign operations is
the applicable local currency. Accordingly, assets and liabilities are
translated into U.S. dollars at the exchange rate in effect at the balance sheet
date, and income and expenses are translated at average exchange rates
prevailing during the year. Translation gains or losses are accumulated as a
separate component of shareholders' equity entitled cumulative translation
adjustment. Foreign currency transaction gains or losses are credited or charged
to income, and such amounts have been insignificant for the periods presented.
Financial statement 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 has adopted the disclosure-only provisions of SFAS No. 123,
"Accounting for Stock-Based Compensation," and will continue to account for
stock-based compensation using Accounting Principles Board Opinion (APB) No. 25
"Accounting for Stock Issued to Employees."
2. ACQUISITIONS AND DISPOSITIONS:
The results of the various acquisitions have been included in the
Company's results since the effective dates of the respective acquisitions. Pro
forma results have not been presented as the effect of the individual
acquisitions on the Company's financial statements were not material. The
following is a discussion of acquisition and disposition activity for each of
the respective years:
Fiscal 1999
Effective July 1, 1998, the Company acquired certain assets and assumed
certain liabilities of the group of companies referred to as Wilson Walton
Australia (now Corrpro Australia). The purchase price was $3,849 in an all cash
transaction. The purchase agreement provides for a post-closing purchase price
adjustment. The acquisition of Corrpro Australia has been accounted for using
the purchase method of accounting. Accordingly, the purchase price has been
allocated to the net assets acquired based upon preliminary estimates of their
fair market values at the date of acquisition. The excess of the purchase price
over the estimated fair value of net assets acquired totaled $4,140 at March 31,
1999 and is being amortized over 40 years on a straight-line basis. The
allocation was based on preliminary estimates and is subject to revision at a
later date.
Effective August 1, 1998, the Company acquired all the outstanding
shares of capital stock of the Basco group of companies ("Basco"). The purchase
price was $3,331 in an all cash transaction. The purchase agreement provides for
post-closing purchase price adjustments. The acquisition of Basco has been
accounted for using the purchase method of accounting. Accordingly, the purchase
price has been allocated to the net assets acquired based upon preliminary
estimates of their fair market values at the date of acquisition. The excess of
the purchase price over the estimated fair value of net assets acquired totaled
$1,855 at March 31, 1999 and is being amortized over 40 years on a straight-line
basis. The allocation was based on preliminary estimates and is subject to
revision at a later date.
Effective March 1, 1999, the Company acquired certain assets and
assumed certain liabilities of D.C. Corrosion Corporation. The purchase price
was $2,356 in an all cash transaction. The purchase agreement provides for
post-closing purchase price adjustments. The acquisition of D.C. Corrosion has
been accounted for
28
<PAGE> 29
using the purchase method of accounting. Accordingly, the purchase price has
been allocated to the net assets acquired based upon preliminary estimates of
their fair market values at the date of acquisition. The excess of the purchase
price over the estimated fair value of net assets acquired totaled $1,582 at
March 31, 1999 and is being amortized over 40 years on a straight-line basis.
The allocation was based on preliminary estimates and is subject to revision at
a later date.
During fiscal 1999, the Company also completed four smaller
acquisitions. The total purchase price for all four of these acquisitions was
$3,056 which consisted of $2,856 of cash and $200 of Company stock. The purchase
agreements provide for post-closing purchase price adjustments. These
acquisitions have been accounted for using the purchase method of accounting.
Accordingly, the respective purchase prices have been allocated to the related
net assets acquired based upon preliminary estimates of their fair market values
at the dates of acquisition. The excess of the purchase price over the estimated
fair value of net assets acquired totaled $2,574 at March 31, 1999 and is being
amortized over 40 years on a straight-line basis. These allocations were based
on preliminary estimates and are subject to revision at a later date.
Fiscal 1998
Effective July 1, 1997, the Company acquired all the outstanding shares
of capital stock of Cathodic Protection Services Company ("CPS"). The purchase
price was $15,023 in cash which included the repayment in full of certain
indebtedness and management fees owed by CPS to its senior lenders and its
former stockholders as well as certain costs directly related to the
acquisition.
The acquisition of CPS has been accounted for using the purchase method
of accounting. Accordingly, the purchase price has been allocated to the net
assets acquired based upon their fair market values at the date of acquisition.
The excess of the purchase price over the fair value of net assets acquired
totaled $7,600 and is being amortized over 40 years on a straight-line basis.
Fiscal 1997
In March 1997, the Company sold substantially all of the assets of a
non-core business operation located in Lafayette, Louisiana. Proceeds from the
sale totaled $2,500 and resulted in a gain of $700 which has been reflected as
an unusual item in the accompanying consolidated statements of income. The
proceeds consisted of a $2,100 short-term note receivable which was paid in full
in June, 1997 and a $400 five-year note receivable. Revenues relating to the
Lafayette operation, which are included in the fiscal 1997 consolidated results,
totaled $3,832.
3. LONG-TERM DEBT:
Long-term debt at March 31, 1999 and 1998 consisted of the following:
<TABLE>
<CAPTION>
1999 1998
---- ----
<S> <C> <C>
Domestic bank credit facility --
$80 Million Facility $30,100 $ 0
$40 Million Facility 0 16,530
Other term notes payable 1,399 1,265
Mortgages payable 513 583
------- -------
32,012 18,378
Less: current portion 1,148 683
------- -------
$30,864 $17,695
======= =======
</TABLE>
29
<PAGE> 30
On March 30, 1999, the Company entered into a new three-year, $80
million unsecured domestic revolving credit facility which expires on April 30,
2002. Initial borrowings under the credit facility were used to repay existing
domestic bank indebtedness. Interest on the revolver borrowings is based, at the
Company's option, on the Euro Rate, as defined in the credit agreement, plus
0.5% to 1.5% or the base rate plus 0% to 0.25%. The spread over the Euro Rate or
base rate varies based upon certain financial ratios. The Company is required to
pay a facility fee ranging from 0.25% to 0.375% on the revolver commitment.
Borrowings under the credit facility are unsecured. The credit agreement
requires the Company to maintain certain financial ratios and places certain
limitations on the Company's ability to pay cash dividends and to make
investments.
The weighted average interest rate on borrowings outstanding under the
revolving credit facility was 7.9% during fiscal 1999.
Other term notes payable include certain other promissory notes. These
notes bear interest at various rates, which ranged from 5.26% to 14.0% at March
31, 1999. The obligations mature at various intervals between 2000 and 2003.
Mortgages payable, which bear interest from 8.75% to 9.5% and are due
on various dates between 2003 and 2010, are repayable in monthly installments
and are secured by the fixed assets of certain subsidiaries.
The Company's long-term debt matures as follows: $1,148 in 2000, $209
in 2001, $195 in 2002, $30,185 in 2003, $20 in 2004 and $255 after 2004.
The Company also maintains available lines of credit from various
foreign banks approximating $4,037 at March 31, 1999, which are secured by the
assets of certain foreign subsidiaries. Short-term borrowings amounted to $1,822
and $0 at March 31, 1999 and 1998, respectively, under these lines of credit.
The interest rates on such borrowings at March 31, 1999 ranged from 5.26% to
14.0%.
Cash paid for interest totaled $4,138, $2,784 and $2,135 for fiscal
years 1999, 1998 and 1997, respectively.
4. SENIOR NOTES:
In fiscal 1998, the Company completed the private placement of $30
million of Senior Notes due 2008. The Notes, which are unsecured, have a fixed
interest rate of 7.6% per annum and require annual principal payments of $4.3
million commencing in 2002. The Senior Notes require the Company to maintain
certain financial ratios. Proceeds from the Notes were used to pay down
borrowings under the Company's domestic bank credit facility including the
prepayment of a $20 million term loan. The Notes mature as follows: $0 in 2000,
$0 in 2001, $4,286 in 2002, $4,286 in 2003, $4,286 in 2004 and $17,142 after
2004.
5. LEASES:
The Company leases certain office and warehouse space and equipment
under operating leases which expire at various dates through 2012. Future
minimum rental payments under long-term lease agreements are as follows: $2,874
in 2000, $2,088 in 2001, $1,425 in 2002, $1,026 in 2003, $567 in 2004 and $1,298
after 2004 with a cumulative total of $9,278. In addition, the Company rents
other property on a month-to-month basis.
Total rental expense was $3,437, $2,664 and $2,408 for fiscal 1999,
1998 and 1997, respectively.
30
<PAGE> 31
6. INCOME TAXES:
Components of income from continuing operations before income taxes and
extraordinary charge follow:
<TABLE>
<CAPTION>
1999 1998 1997
---- ---- ----
<S> <C> <C> <C>
United States $11,406 $ 6,596 $ 4,075
Foreign 2,752 4,890 3,899
------- ------- -------
$14,158 $11,486 $ 7,974
======= ======= =======
Components of the provision for income taxes by jurisdiction follow:
1999 1998 1997
---- ---- ----
Current -- Federal $ 2,018 $ 419 $ 978
-- State and local 179 425 296
-- Foreign 2,081 2,562 1,867
------- ------- -------
4,278 3,406 3,141
------- ------- -------
Deferred -- Federal 1,057 904 (114)
-- State and local 119 284 197
-- Foreign 209 1 (57)
------- ------- -------
1,385 1,189 26
------- ------- -------
$ 5,663 $ 4,595 $ 3,167
======= ======= =======
Differences between the statutory United States federal income tax rate
(34%) and the effective income tax rate are as follows:
1999 1998 1997
---- ---- ----
Federal income tax provision
at statutory rate $ 4,814 $ 3,905 $ 2,711
State income taxes, net 197 468 393
Reduction of valuation reserves - - (83)
Foreign tax rate differential (11) 127 432
Meals and entertainment 134 95 80
Other 529 - (366)
------- ------- -------
Effective income tax $ 5,663 $ 4,595 $ 3,167
======= ======= =======
Temporary differences and carryforwards which give rise to deferred tax assets
and liabilities were comprised of the following at March 31, 1999 and 1998:
1999 1998
---- ----
DEFERRED TAX ASSETS
Bad debts $ 649 $ 633
Other reserves 282 310
Uniform cost capitalization 206 141
Accrued expenses 641 641
Pension and other benefit reserves 294 284
Federal tax carryforward and other tax credit
and carryforwards 2,763 1,632
State net operating loss carryforwards 260 230
Other 975 454
------- -------
6,070 4,325
Valuation reserve (28) (28)
------- -------
Total deferred tax assets 6,042 4,297
</TABLE>
31
<PAGE> 32
<TABLE>
<CAPTION>
1999 1998
DEFERRED TAX LIABILITIES ------- -------
<S> <C> <C>
Fixed assets (1,209) (1,781)
Other (539) (332)
------- -------
Total deferred tax liabilities (1,748) (2,113)
------- -------
Total net deferred taxes $ 4,294 $ 2,184
======= =======
</TABLE>
Accrued liabilities included $1,635 and $1,407 at March 31, 1999 and
1998, respectively, related to accrued income taxes.
The valuation reserve has been established for foreign tax credit
carryforwards because management believes that it is more likely than not that
such benefits will not be realized.
No provision for United States income tax on approximately $7,816 of
undistributed earnings of foreign subsidiaries at March 31, 1999, has been made,
because the earnings are indefinitely reinvested in the subsidiaries.
Determination of the amount of the unrecognized deferred tax liability for
temporary differences related to investments in foreign subsidiaries is not
practicable.
The Company had state net operating loss carryforwards of approximately
$4,922 and $4,357 at March 31, 1999 and 1998, respectively, and federal credit
carryforwards of $2,763 and $1,632 at March 31, 1999 and 1998, respectively. At
March 31, 1999, the Company had federal net operating loss carryforwards of
$5,429 which expire through 2019. The Company also has federal credit
carryforwards of $557 and $431 at March 31, 1999 and 1998, respectively,
relating to non-expiring alternative minimum tax credits. The remaining federal
credit carryforwards and the state carryforwards expire in various future
periods. There can be no assurance that tax carryforwards will be utilized.
Cash paid for income taxes totaled $3,044, $2,637 and $1,852 for fiscal
1999, 1998 and 1997, respectively.
7. EMPLOYEE BENEFIT PLANS:
In February 1998, the Financial Accounting Standards Board issued SFAS
132, "Employers' Disclosures About Pensions and Other Postretirement Benefits."
SFAS 132 revises disclosures about pension and other postretirement benefit
plans. It does not change the measurement or recognition of those plans. SFAS
132 was effective for years beginning after December 15, 1997. As required, the
Company adopted SFAS 132 for the year ended March 31, 1999. Accordingly, all
historical disclosures have been restated to comply with the current year
presentation.
One of the Company's foreign subsidiaries has a contributory defined
benefit pension plan for certain salaried employees. The Company funds the plan
in accordance with recommendations from independent actuaries. Pension benefits
generally depend on length of service and job grade.
32
<PAGE> 33
The following table sets forth the change in benefit obligation, change
in plan assets, funded status, Consolidated Balance Sheets presentation, net
periodic pension benefit cost and the relevant assumptions for the Company's
defined benefit pension plan at March 31:
<TABLE>
<CAPTION>
1999 1998
---- ----
<S> <C> <C> <C>
Change in benefit obligation:
Benefit obligation at beginning of year $ 3,034 $ 2,302
Service cost 274 269
Interest cost 234 220
Assumption change 308 209
Plan participants contributions 48 50
Benefits paid (45) (53)
Exchange rate effect (102) 37
------- -------
Benefit obligation at end of year $ 3,751 $ 3,034
Change in plan assets
Fair value of plan assets at beginning of year $ 2,504 $ 2,130
Employer contributions 168 171
Plan participants contributions 48 50
Benefits paid (45) (53)
Investment return 487 396
Exchange rate effect (75) (190)
------- -------
Fair value of plan assets at end of year $ 3,087 $ 2,504
Funded status
Funded status (664) (530)
Unrecognized prior service cost 193 173
------- -------
Accrued pension amount (471) (357)
Amounts recognized in Consolidated Balance Sheets
Accrued benefit liability (471) (357)
1999 1998 1997
---- ---- ----
Net periodic pension benefit cost
Service cost $ 274 $ 269 $ 235
Interest cost 234 220 182
Actual return on assets (218) (176) (141)
Net amortization and deferral 10 (16) (33)
----- ----- -----
Net periodic pension cost $ 300 $ 297 $ 243
Weighted-average assumptions as of March 31
Discount rate 6.5% 6.5% 6.5%
Long-term rate of return on plan assets 8.5% 8.5% 8.5%
Rate of increase in compensation level 4.5% 4.5% 4.5%
</TABLE>
The Company also maintains the Corrpro Companies, Inc. Profit Sharing
Plan and Trust for all eligible employees in the United States under Section
401(k) of the Internal Revenue Code. The Company may, at its discretion, make
contributions to the plan. In addition, the Company matches a portion of
employees' contributions. The matching contributions totaled $401, $327 and $83
in fiscal 1999, 1998 and 1997, respectively.
The Company has entered into an employment agreement with one of its
executives which provides, among other things, that such employee shall be
eligible at 63 1/2 to receive retirement income, with a lifetime survivor
benefit, in an amount equal to 50% of base salary. The Company is providing for
this deferred compensation benefit over the term of the agreement.
33
<PAGE> 34
8. SHAREHOLDERS' EQUITY:
Stock Repurchase Program
In November 1996, the Board of Directors authorized a program to
repurchase up to 750 shares of the Company's outstanding common shares. During
fiscal 1999, 1998 and 1997, respectively, the Company repurchased approximately
249, 332 and 109 shares, at a total cost of $2,833, $3,319 and $767 under this
program. In April 1999, the Board of Directors authorized the repurchase of up
to an additional 750 outstanding common shares.
Shareholder Rights Plan
On July 23, 1997, the Company adopted a Shareholder Rights Plan and
declared a dividend of one Right on each outstanding share of the Company's
common stock. Each Right would entitle shareholders to buy, upon certain
triggering events, one one-hundredth of a newly created Series A Junior
Participating Preferred Share at an exercise price of $75 (subject to certain
adjustments). The record date for the distribution was August 7, 1997.
Subject to certain exceptions, Rights will become exercisable only
after a person or group acquires 20% or more of the Company's Common shares or
announces a tender offer for 20% or more of the Company's Common Shares. The
Company's Board of Directors can redeem the Rights at $0.01 per Right at any
time before a person acquires 20% or more of the Company's Common Shares. If a
person or group acquires 20% or more of the Company's Common Shares, each Right
will entitle holders, other than the acquiring party, to purchase Common Shares
of the Company having a market value of twice the exercise price of the Right.
If, after the Rights have become exercisable, the Company merges or otherwise
combines with another entity, each Right then outstanding will entitle its
holder to purchase a number of the acquiring party's common shares having a
market value of twice the exercise price of the Right. The Plan also contains
other customary provisions and is similar to plans adopted by many other
companies. The Rights will expire in July 2007.
9. STOCK PLANS:
The Company has options outstanding under various options plans
including the 1997 Long-Term Incentive Plan (the "1997 Option Plan") and the
1997 Non-Employee Directors' Stock Option Plan (the "1997 Directors Plan"). The
Company's 1994 Corrpro Stock Option Plan (the "1994 Plan") and the 1994 Corrpro
Outside Directors' Stock Option Plan (the "Directors Plan") were terminated upon
adoption of the 1997 Option Plan and the 1997 Directors Plan. In addition, prior
to its initial public offering in September 1993, the Company issued stock
options under various arrangements.
The 1997 Option Plan was adopted on April 28, 1997, subject to
shareholder approval, which was obtained on July 23, 1997. The 1997 Option Plan
provides for the granting of up to 469 non-qualified stock options, stock
appreciation rights, restricted stock awards or stock bonus awards to officers,
key employees and consultants of the Company. In addition, the 1997 Option Plan
provides that shares exercised, forfeited or otherwise terminated under
previously granted stock awards, other than awards under the 1994 Directors
Plan, will also be available for grant under the new plan. The option price per
share will generally be the fair market value of the Company's Common Shares on
the date of grant and the term of the options will not exceed 10 years. The 1997
Option Plan will terminate on April 28, 2007. On April 30, 1998, the Company
adopted, subject to shareholder approval, an amendment to the 1997 Option Plan
increasing the number of shares available for issuance by 300. Shareholder
approval for such amendment was obtained on July 22, 1998.
The 1997 Directors Plan was also adopted on April 28, 1997, subjected
to shareholder approval, which was obtained on July 23, 1997. The 1997 Directors
Plan provides for the granting of up to 63 non-qualified stock options to
current and future non-employee directors of the Company. Under this plan, each
non-employee director will annually be granted options to purchase 3 Common
Shares. The option price per share will be the
34
<PAGE> 35
fair market value of the Company's Common Shares on the date of grant and the
term of the options will be 10 years. The 1997 Directors Plan will terminate on
April 28, 2007.
Stock option activity for the Company during fiscal 1999, 1998 and 1997
was as follows:
<TABLE>
<CAPTION>
NUMBER OF SHARES 1999 1998 1997
- ---------------- ---- ---- ----
<S> <C> <C> <C>
Options outstanding, beginning of year 1,165 806 774
Granted 116 401 204
Exercised (39) (25) (158)
Expired or canceled (13) (17) (14)
------ ------ ------
Outstanding, end of year 1,229 1,165 806
------ ------ ------
Exercisable, end of year 870 789 491
Available for grant, end of year 375 218 110
Price range of options:
Granted $10.13 to $ 7.50 to $ 6.49 to
$12.80 $12.00 $ 8.97
Exercised $ 1.86 to $ 7.70 to $ 1.86 to
$ 6.93 $11.30 $ 5.50
Options outstanding, end of year $ 1.86 to $ 1.86 to $ 1.86 to
$17.33 $17.33 $17.33
</TABLE>
The Company has adopted the disclosure-only provisions of SFAS No. 123,
"Accounting for Stock-Based Compensation", and will continue to account for
stock-based compensation using APB No. 25 "Accounting for Stock Issued to
Employees." Had the Company determined compensation cost based on the fair value
at the grant date for its stock options under SFAS No. 123, the Company's income
from continuing operations and income from continuing operations per share would
have been reduced to the pro forma amounts indicated below:
<TABLE>
<CAPTION>
1999 1998 1997
---- ---- ----
<S> <C> <C> <C>
Income from continuing operations:
As reported $ 8,495 $ 6,891 $ 4,807
Pro forma 8,035 6,549 4,573
Income from continuing operations per share - Basic:
As reported $ 1.08 $ 0.85 $ 0.58
Pro forma 1.02 0.80 0.55
Income from continuing operations per share - Diluted:
As reported $ 1.03 $ 0.81 $ 0.57
Pro forma 0.98 0.77 0.54
</TABLE>
The fair value of each option grant was estimated on the date of grant
using the Black-Scholes option-pricing model. The significant assumptions used
were risk-free interest rates ranging from 5.6% to 5.7%, expected volatility of
27.2% for 1999, 37.9% for 1998, and 36.7% for 1997, an expected life of 8 years
and no expected dividends.
35
<PAGE> 36
The pro forma effects on net income for 1999, 1998 and 1997 are not
representative of the pro forma effects on net income in future years as the
compensation cost for each year's grant is recognized over its vesting period
and compensation costs for options granted prior to April 1, 1995 is not
considered.
10. BUSINESS SEGMENTS:
In fiscal 1999, the Company adopted SFAS 131, "Disclosures About
Segments of an Enterprise and Related Information", which changes the way the
Company reports information about its operating segments. The information for
all prior periods has been restated to conform with SFAS 131. The Company's
operating segments and a description of the products and services they provide
are described below:
Domestic Core Operations. The Domestic Core Operations consist of the
U.S. offices offering services which include contract research in various areas
of corrosion control, cathodic protection engineering services and general
corrosion engineering services associated with failure analysis, metallurgical
problems and material selection. The engineering services are provided to
private sector customers in the aerospace, defense, marine, chemicals, petroleum
and utilities industries and to governmental entities in connection with water
treatment and delivery systems, marine vessels, transit systems, weapons and
infrastructure assets. This sector also sells material and equipment in
conjunction with its services, and often sells these products to other
engineering and construction firms in connection with corrosion control
projects. Products sold include various cathodic protection anodes, rectifier
units and instrumentation, computer hardware and software for monitoring
corrosion, and accessory products.
Canadian Operations. This segment resulted from the combination of CSG
and UCC during fiscal 1995. Corrpro's Canadian Operations offer a combination of
expertise in engineering, construction and product supply in cathodic
protection. In addition, this operating unit provides material and equipment to
customers in the oil and gas industry with its primary focus on the needs of
pipeline operators. The Canadian Operations also specialize in pipeline
integrity issues, and designs internal inspection programs that are used to
detect corrosion and pipe weld flaws, clean pipelines, and confirm pipeline
orientation.
European Operations. This segment provides corrosion engineering
services and equipment supply primarily to the marine, offshore and industrial
markets. In the marine market, this segment manufactures and supplies cathodic
protection systems for hulls and ballast tanks on new ships and those which are
in need of repair. In the offshore market, it provides cathodic protection
equipment for new and existing subsea pipelines, offshore drilling rigs and
production platforms. Having a manufacturing and distribution center in Europe
enables it to serve many of Europe's major offshore oil production areas. In the
industrial market, it offers corrosion engineering, cathodic protection
equipment and installation services.
Other Operations. This segment consists of all other businesses
including those in the Middle East, Asia and Australia as well as the corrosion
monitoring equipment business. The businesses in the Middle East, Asia and
Australia provide corrosion engineering services and equipment supply to the
marine, offshore and industrial markets. The corrosion monitoring equipment
business provides corrosion engineering services and equipment supply for
monitoring internal corrosion on gas and liquid pipelines, storage vessels, well
casings and refining and process equipment.
36
<PAGE> 37
The Company's operations by segment are presented below:
<TABLE>
<CAPTION>
1999 1998 1997
---- ---- ----
<S> <C> <C> <C>
Revenue:
Domestic Core Operations $ 108,082 $ 85,814 $ 61,933
Canadian Operations 16,039 19,917 18,840
European Operations 21,865 27,056 24,453
Other Operations 42,704 39,866 34,378
--------- --------- ---------
$ 188,690 $ 172,653 $ 139,604
========= ========= =========
Operating Profit:
Domestic Core Operations $ 20,682 $ 14,930 $ 13,115
Canadian Operations 3,442 3,674 2,687
European Operations 1,692 2,776 1,110
Other Operations 1,295 1,690 2,111
Corporate Related Costs and Other (9,057) (9,150) (9,353)
--------- --------- ---------
$ 18,054 $ 13,920 $ 9,670
========= ========= =========
Total Assets:
Domestic Core Operations $ 72,710 $ 56,687 $ 38,161
Canadian Operations 15,098 16,461 15,732
European Operations 19,939 21,491 20,281
Other Operations 28,486 30,172 28,483
Corporate Related Assets and Other 11,362 11,464 4,261
--------- --------- ---------
$ 147,595 $ 136,275 $ 106,918
========= ========= =========
Capital Expenditures:
Domestic Core Operations $ 1,082 $ 1,262 $ 915
Canadian Operations 963 91 180
European Operations 123 33 353
Other Operations 693 1,404 263
Corporate Related Capital Expenditures and Other 558 (194) 176
--------- --------- ---------
$ 3,419 $ 2,596 $ 1,887
========= ========= =========
Depreciation and Amortization:
Domestic Core Operations $ 1,254 $ 926 $ 574
Canadian Operations 493 475 494
European Operations 535 498 524
Other Operations 1,239 886 1,086
Corporate Related Depreciation and Amortization and Other 1,133 880 581
--------- --------- ---------
$ 4,654 $ 3,665 $ 3,259
========= ========= =========
</TABLE>
11. NET ASSETS HELD FOR SALE:
During March 1997, the Company adopted a formal plan to put its
Corrtherm operation up for sale and as such, reported it as a discontinued
operation in the consolidated financial statements.
As a result of the adoption of the divestiture plan, the Company
recorded a $6,000 charge ($3,960 net of the related tax benefit) in March 1997.
The charge included the estimated loss on disposal and provisions for other
estimated costs to be incurred in connection with the disposal. During September
1998, the Company recorded an additional charge of $6,057 ($3,998 net of the
related tax benefit), which represented an addition to
37
<PAGE> 38
the estimated loss on disposal. In March 1999, the Company completed the
disposition of its Corrtherm operation for consideration approximately equal to
its then current carrying value.
Net assets held for sale relating to Corrtherm before adjustment for
the estimated loss on disposal at March 31, 1998 consisted of working capital of
$4,279, net property and equipment of $6,588, and other assets of $2,932. These
amounts are offset by a reserve for the estimated loss on disposal and
provisions for other estimated costs to be incurred in connection with the
disposal.
The Company allocated interest of $637, $638 and $638 for fiscal years
1999, 1998 and 1997 to Corrtherm based on the estimated proceeds to be realized
from the divestiture.
Revenues from Corrtherm, which are excluded from consolidated revenues,
totaled $5,793, $11,083 and $13,237 in fiscal 1999, 1998 and 1997, respectively.
These revenues included intercompany sales of $2,446, $4,683 and $1,090 in
fiscal 1999, 1998 and 1997, respectively. Loss from discontinued operations
totaled $1,504, $1,174 and $1,037 in fiscal 1999, 1998 and 1997 and are net of
income tax benefits of $1,007, $783 and $493, respectively.
12. LEGAL MATTERS:
Although in the Company's opinion the following claim is without merit
and will have no material effect on the Company, disclosure is being made in
order to comply with applicable requirements of the Securities and Exchange
Commission. The Company is a defendant in a complaint filed on November 12,
1998, as subsequently amended, in United States District Court, Northern
District of Ohio, Eastern Division. The lawsuit arises out of adoption by the
Environmental Protection Agency ("EPA") and the American Society for Testing and
Materials ("ASTM") of regulations permitting non-invasive methods for inspecting
and testing underground storage tanks. Prior to adoption of such regulations,
underground storage tanks were inspected by visual manned inspections. After
convening a task force to study the issue, the EPA and ASTM recognized several
other methods of tank assessment, including statistical and analytical methods
used by the Company and other corrosion control service providers. The
plaintiffs in the lawsuit, Armor Shield, Inc. and Doublewall Retrofit Systems,
Inc., have claimed that the methods used by the Company are not as protective of
human health and the environment as internal manned tank inspection, that ASTM
procedures were manipulated and that EPA approval was obtained fraudulently. The
plaintiffs, which provide internal manned inspection and lining services and
equipment, have claimed violations of federal and state anti-trust laws,
unreasonable restraint of trade, false advertising and unfair competition, which
allegedly caused injury to their businesses and property in excess of $30
million. They are seeking damages and injunctive relief. The complaint also
names, among others, an executive officer of the Company and a director of the
Company. The Company believes that the claims are without merit and has filed a
motion to dismiss the anti-trust claim for failure to state a claim and on the
basis that there has been no injury to competition. The Company denies any
allegations of wrongdoing and is preparing to vigorously defend the claims.
The Company is subject to other legal proceedings and claims which
arise in the ordinary course of business. In the opinion of management, the
amount of ultimate liability, if any, with respect to any such matters will not
materially affect future operations, the financial position or cash flows of the
Company.
38
<PAGE> 39
SUPPLEMENTAL FINANCIAL INFORMATION
Quarterly Results of Operations (Unaudited):
The following is a summary of the unaudited quarterly results of operations for
the fiscal years ended March 31, 1999 and 1998.
<TABLE>
<CAPTION>
Three Months Ended 06/30/98 09/30/98 12/31/98 03/31/99 Total
- ---------------------------------------------------------------------------------------------------
(In Thousands, Except per Share Data)
<S> <C> <C> <C> <C> <C>
Revenues $ 44,728 $ 50,909 $ 51,757 $ 41,296 $188,690
Operating income 4,068 5,767 5,792 2,427 18,054
Income from continuing operations 1,914 2,885 2,833 863 8,495
Net income (loss) 1,914 (1,113) 2,833 617 4,251
Earnings per share - Basic:
Income from continuing operations $ 0.24 $ 0.37 $ 0.36 $ 0.11 $ 1.08
Net income (loss) 0.24 (0.14) 0.36 0.08 0.54
Weighted average number of shares - Basic 7,942 7,884 7,812 7,771 7,851
Earnings per share - Diluted:
Income from continuing operations $ 0.23 $ 0.35 $ 0.35 $ 0.11 $ 1.03
Net income (loss) 0.23 (0.13) 0.35 0.08 0.52
Weighted average number of shares - Diluted 8,369 8,252 8,192 8,158 8,224
Three Months Ended 06/30/97 09/30/97 12/31/97 03/31/98 Total
- ---------------------------------------------------------------------------------------------------
(In Thousands, Except per Share Data)
Revenues $ 35,550 $ 48,666 $ 47,392 $ 41,045 $172,653
Operating income 2,900 4,629 4,147 2,244 13,920
Income from continuing operations 1,523 2,367 2,083 918 6,891
Net income 1,523 2,367 2,083 918 6,891
Earnings per share - Basic:
Income from continuing operations $ 0.18 $ 0.29 $ 0.26 $ 0.11 $ 0.85
Net income 0.18 0.29 0.26 0.11 0.85
Weighted average number of shares - Basic 8,247 8,175 8,135 8,061 8,155
Earnings per share - Diluted:
Income from continuing operation $ 0.18 $ 0.28 $ 0.24 $ 0.11 $ 0.81
Net income 0.18 0.28 0.24 0.11 0.81
Weighted average number of shares - Diluted 8,450 8,456 8,507 8,444 8,468
</TABLE>
39
<PAGE> 40
PART III
Part III, except for certain information relating to Executive Officers
included in Part I, Item 4A, is omitted inasmuch as the Company intends to file
with the Securities and Exchange Commission within 120 days of the close of its
fiscal year ended March 31, 1999 a definitive proxy statement pursuant to
Regulation 14A of the Securities Exchange Act of 1934.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a)(1) THE FOLLOWING CONSOLIDATED FINANCIAL STATEMENTS ARE INCLUDED IN
PART II, ITEM 8:
Report of Independent Accountants
Consolidated Balance Sheets at March 31, 1999 and 1998
Consolidated Statements of Income for the years ended March 31, 1999,
1998 and 1997
Consolidated Statements of Shareholders' Equity for the years ended
March 31, 1999, 1998 and 1997
Consolidated Statements of Cash Flows for the years ended March 31,
1999, 1998 and 1997
Notes to Consolidated Financial Statements
(a)(2) FINANCIAL STATEMENT SCHEDULES:
The financial statement schedules have been omitted as they are not
required or not applicable, or as the information is furnished
elsewhere in the consolidated financial statements or the notes
thereto.
(a)(3) INDEX TO EXHIBITS:
EXHIBIT
NO. EXHIBIT
- ----- -------
3.1 Amended and Restated Articles of Incorporation of the Company.(1),(9)
3.2 Amended and Restated Code of Regulations of the Company.(2)
4.1 Specimen certificate for the Common Shares.(3)
4.2 Credit Agreement dated March 30, 1999 by and among the Company, the
Foreign Subsidiary Borrowers, NBD Bank, as Agent and the Lenders Party
Hereto.
4.3 Credit Agreement dated July 16, 1997 by and among the Company, the
Guarantors Party Thereto, PNC Bank National Association, as Agent and
the Bankers Party Thereto and Amendment No. 1 and 2 Thereto. Other long
term debt agreements of the Company, except for Note Purchase
Agreement, are not filed pursuant to Item 601(b)(4)(iii)(A) of
Regulation S-K. The Company will furnish copies of any such agreements
to the Securities and Exchange Commission upon its request. (4), (5),
(6)
4.4 Note Purchase Agreement dated as of January 21, 1998 by and among the
Company and the
40
<PAGE> 41
Purchaser herein.(6)
4.5 Third Amendment to Credit Agreement dated as of April 1, 1998 by and
among the Company, the lenders Party Thereto and PNC Bank National
Association, as Agent. (10)
4.6 Rights Agreement, dated as of July 23, 1997, between the Company and
National City Bank. (7)
10.1 Form of Indemnification Agreement for Officers and Directors of the
Company. (3)
10.2 Consulting Agreement dated April 1, 1997 by and between Commonwealth
Seager Holdings Ltd. and Corrtech Consulting Group. (10)
10.3 Employment Agreement effective April 1, 1998 by and between the Company
and Joseph W. Rog. (10)
10.4 Employment Agreement effective April 1, 1998 by and between the Company
and Michael K. Baach. (10)
10.5 Employment Agreement effective April 1, 1998 by and between the Company
and George A. Gehring, Jr. (10)
10.6 Employment Agreement effective April 1, 1998 by and between the Company
and Neal R. Restivo. (10)
10.7 Stock Option Agreement dated as of June 15, 1992 by and between the
Company and C. Richard Lynham, as amended. (3)
10.8 Stock Option Agreement dated as of November 15, 1992 by and between the
Company and C. Richard Lynham. (3)
10.9 Stock Option Agreement dated as of November 15, 1992 by and between the
Company and Michael K. Baach. (3)
10.10 Stock Option Agreement dated as of November 15, 1992 by and between the
Company and George A. Gehring, Jr. (3)
10.11 Stock Option Agreement dated as of November 15, 1992 by and between the
Company and David H. Kroon. (3)
10.12 Stock Option Agreement dated as of November 15, 1992 by and between the
Company and Joseph W. Rog. (3)
10.13 Company Incentive Option Plan as amended. (3)
41
<PAGE> 42
10.14 1997 Long-Term Incentive Plan of Corrpro Companies, Inc. (3)
10.15 1997 Non-Employee Directors' Stock Option Plan. (3)
10.16 Stock Purchase Agreement dated June 4, 1997, as amended, by the
Company, Airlog International, Inc., Curran Holdings, Inc., and
Offshore Logistics, Inc. (8)
21.1 Subsidiaries of the Company.
23.1 Consent of KPMG LLP.
27.1 Financial Data Schedule.
- ------------
(1) A copy of this exhibit filed as Exhibit 4.1 of the Company's
Registration Statement on Form S-8 (Registration No. 33-74814) is
incorporated herein by reference.
(2) A copy of this exhibit filed as Exhibit 4.2 of the Company's
Registration Statement on Form S-8 (Registration No. 33-74814) is
incorporated herein by reference.
(3) A copy of this exhibit filed as exhibit number of the Company's
Registration Statement on Form S-1 (Registration No. 33-64482) is
incorporated herein by reference.
(4) A copy of this exhibit filed as the Exhibit 4.1 to the Company's report
on Form 10-Q for the quarterly period ended June 30, 1997.
(5) A copy of this exhibit filed as the Exhibit 10 to the Company's report
on Form 10-Q for the quarterly period ended September 30, 1997.
(6) A copy of this exhibit filed as the Exhibits 4.1 and 4.2 to the
Company's report on Form 10-Q for the quarterly period ended December
31, 1997.
(7) A copy of this exhibit filed as Exhibit 1.1 to the Company's Form 8-A
filed August 7, 1997 is incorporated herein by reference.
(8) A copy of this exhibit filed as Exhibits 2.1 and 2.2 to the Company's
Form 8-K filed July 31, 1997 is incorporated herein by reference.
(9) A copy of this exhibit filed as Exhibit 3.1 to the Company's Form 10-Q
for the quarterly period ended December 31, 1998.
(10) A copy of this exhibit filed as the Exhibits 4.4, 10.2, 10.3, 10.4,
10.5, 10.6, 10.7 and 10.8 to the Company's report on Form 10-K for the
period ended March 31, 1998.
- -----------
42
<PAGE> 43
(b) REPORTS ON FORM 8-K:
There were no reports on Form 8-K filed during the three months
ended March 31, 1999.
(c) EXHIBITS
See "Index to Exhibits" at Item 14(a) above.
43
<PAGE> 44
SIGNATURES
Pursuant to the requirements of Section 13 of 15(d) of the Securities
an Exchange Act of 1934, the registrant has duly caused this report to be signed
on its behalf by the undersigned, thereunto duly authorized.
CORRPRO COMPANIES, INC.
June 2, 1999 /s/ Joseph W. Rog
Joseph W. Rog
Chairman of the Board of Directors,
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 in the capacities and on the dates indicated.
June 2, 1999 /s/ Joseph W. Rog
Joseph W. Rog
Chairman of the Board of Directors,
President and Chief Executive Officer
(Principal Executive Officer)
June 2, 1999 /s/ Neal R. Restivo
Neal R. Restivo
Executive Vice President,
Chief Financial Officer,
Secretary and Treasurer
June 2, 1999 /s/ David H. Kroon
David H. Kroon, Director
June 2, 1999 /s/ Barry W. Schadeck
Barry W. Schadeck, Director
June 2, 1999 /s/ Robert E. Hodge
Robert E. Hodge, Director
June 2, 1999 /s/ C. Richard Lynham
C. Richard Lynham, Director
June 2, 1999 /s/ Warren F. Rogers
Warren F. Rogers, Director
June 2, 1999 /s/ Walter W. Williams
Walter W. Williams, Director
44
<PAGE> 1
Exhibit 4.2
CREDIT AGREEMENT
----------------
This Agreement, dated as of March 30, 1999, is among Corrpro Companies,
Inc. (the "Company"), the Foreign Subsidiary Borrowers (as hereinafter defined)
from time to time parties hereto (together with the Company, the "Borrowers"),
the Lenders and NBD Bank, as Issuer and as Agent. The parties hereto agree as
follows:
ARTICLE I.
DEFINITIONS
-----------
1.1 DEFINITIONS. As used in this Agreement:
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Company or any of its Subsidiaries (i) acquires any going business or all or
substantially all of the assets of any firm, corporation or limited liability
company, or division thereof, whether through purchase of assets, merger or
otherwise or (ii) directly or indirectly acquires (in one transaction or as the
most recent transaction in a series of related transactions) at least a majority
(in number of votes) of the securities of a corporation which have ordinary
voting power for the election of directors (other than securities having such
power only by reason of the happening of a contingency) or a majority (by
percentage or voting power) of the outstanding ownership interests of a
partnership or limited liability company.
"Advance" means a borrowing hereunder (i) made by the Lenders on the
same Borrowing Date, or (ii) converted or continued by the Lenders on the same
date of conversion or continuation, consisting, in either case, of the aggregate
amount of the several Loans of the same Type and, in the case of Eurocurrency
Loans, in the same Agreed Currency and for the same Interest Period.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 10% or
more of any class of voting securities (or other ownership interests) of the
controlled Person or possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of the controlled Person,
whether through ownership of stock, by contract or otherwise.
"Agent" means NBD Bank in its capacity as contractual representative of
the Lenders pursuant to Article X, and not in its individual capacity as a
Lender, and any successor Agent appointed pursuant to Article X.
"Agreed Currencies" means (i) Dollars, and (ii) so long as such
currencies remain Eligible Currencies, British Pounds Sterling and Canadian
Dollars. For the purposes of this definition, each of the specific currencies
referred to in clause (ii), above, shall mean and be deemed to refer to the
lawful currency of the jurisdiction referred to in connection with such
currency, e.g., "Canadian Dollars" means the lawful currency of Canada.
"Aggregate Canadian Commitments" means the aggregate amount, stated in
Canadian Dollars, of the Canadian Commitments of all of the Canadian Lenders.
1
<PAGE> 2
"Aggregate Canadian Outstandings" means at any date of determination
with respect to any Canadian Lender, the sum of the aggregate unpaid principal
amount of such Lender's Canadian Revolving Credit Loans on such date and the
amount of such Lender's Pro Rata Share of the Canadian Facility Letter of Credit
Obligations and Swing Loans to the Canadian Borrower on such date, both stated
in Canadian Dollars.
"Aggregate Commitments" means the aggregate of the Commitments of all
of the Lenders, as reduced from time to time pursuant to the terms hereof.
"Aggregate Total Outstandings" means as at any date of determination
with respect to any Lender, the sum of the U. S. Dollar Equivalent on such date
of the aggregate unpaid principal amount of such Lender's Revolving Credit Loans
on such date and the U. S. Dollar Equivalent on such date of the amount of such
Lender's Pro Rata Share of the Facility Letter of Credit Obligations and Swing
Loans on such date.
"Aggregate U.K. Commitments" means the aggregate amount, stated in
British Pounds Sterling, of the U.K. Commitments of all of the U.K. Lenders.
"Aggregate U.K. Outstandings" means at any date of determination with
respect to any U.K. Lender, the sum of the aggregate unpaid principal amount of
such Lender's U.K. Revolving Credit Loans on such date and the amount of such
Lender's Pro Rata Share of the U.K. Facility Letter of Credit Obligations and
Swing Loans to the U.K. Borrower on such date, both stated in British Pounds
Sterling.
"Aggregate U.S. Commitments" means the aggregate amount in U.S. Dollars
of the U.S. Commitments of all of the Lenders.
"Aggregate U.S. Outstandings" means as at any date of determination
with respect to any Lender, the sum of the aggregate unpaid principal amount of
such Lender's U.S. Revolving Credit Loans on such date and the amount of such
Lender's Pro Rata Share of the U.S. Facility Letter of Credit Obligations and
Swing Loans to the Company on such date, both stated in U.S. Dollars.
"Agreement" means this credit agreement, as it may be amended or
modified and in effect from time to time.
"Agreement Accounting Principles" means generally accepted accounting
principles as in effect from time to time, applied in a manner consistent with
that used in preparing the financial statements referred to in Section 5.4.
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (i) the Corporate Base Rate for such day and (ii) the sum
of the Federal Funds Effective Rate for such day plus 1% per annum.
"Anticipated Acquisitions" means those Acquisitions described on
Schedule 1.3.
"Applicable Facility Fee Rate" means, at any time, the percentage rate
per annum at which facility fees are accruing on the Aggregate Commitments
(without regard to usage) at such time as set forth in the Pricing Schedule.
"Applicable Facility LC Rate" means, at any time, the percentage rate
per annum set forth in the Pricing Schedule at which fees will be charged on
Facility LCs at such time.
2
<PAGE> 3
"Applicable Margin" means, with respect to Advances of any Type at any
time, the percentage rate per annum which is applicable at such time with
respect to Advances of such Type as set forth in the Pricing Schedule.
"Arranger" means First Chicago Capital Markets, Inc., a Delaware
corporation, and its successors.
"Article" means an article of this Agreement unless another document is
specifically referenced.
"Authorized Officer" means, with respect to any Borrower, any of the
chief executive officer, chief financial officer, vice-president/corporate
controller, the treasurer of such Borrower or any Person designated by any of
the foregoing in writing to the Agent from time to time to act on behalf of such
Borrower, in each case, acting singly.
"Borrowers" is defined in the preamble hereto.
"Borrowing Date" means a date on which an Advance is made hereunder.
"Business Day" means (i) with respect to any borrowing, payment or rate
selection of Eurocurrency Advances, a day (other than a Saturday or Sunday) on
which banks generally are open in Detroit, Chicago and New York for the conduct
of substantially all of their commercial lending activities and on which
dealings in Dollars and the other Agreed Currencies are carried on in the London
interbank market, and (ii) for all other purposes, a day (other than a Saturday
or Sunday) on which banks generally are open in Detroit, Chicago and New York
for the conduct of substantially all of their commercial lending activities.
"Canada" shall mean the Dominion of Canada.
"Canadian Borrower" means any Foreign Subsidiary Borrower from time to
time designated on Schedule 1.1 as the "Canadian Borrower".
"Canadian Commitment" means, as to any Lender at any time, its
obligation to make Loans to the Canadian Borrower under Section 2.1.2 in an
aggregate amount not to exceed at any time outstanding the Equivalent Amount in
Canadian Dollars of the Dollar amount set forth opposite such Lender's name in
Schedule 1.1 under the heading "Canadian Commitment" or as otherwise established
pursuant to Section 13.3, as such amount may be reduced from time to time
pursuant to Sections 2.4, 13.3 and the other applicable provisions hereof.
"Canadian Facility Letter of Credit" means any Letter of Credit for the
account of the Canadian Borrower.
"Canadian Facility Letter of Credit Obligations" means Facility Letter
of Credit Obligations with respect to Canadian Facility Letters of Credit.
"Canadian Lender" means any Lender which has a Canadian Commitment.
"Canadian Revolving Credit Loans" means Loans made to the Canadian
Borrower under Section 2.1.2.
"Capital Expenditures" means, for any Person and without duplication,
any expenditures for any purchase or other acquisition by such Person of any
asset which would be classified as property, plant or
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<PAGE> 4
equipment on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Capitalized Lease" of a Person means any lease of Property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Cash Equivalent Investments" means (i) short-term obligations of, or
fully guaranteed by, the United States of America, (ii) commercial paper rated
A-1 or better by S&P or P-1 or better by Moody's, (iii) demand deposit accounts
maintained in the ordinary course of business, and (iv) certificates of deposit
issued by and time deposits with commercial banks (whether domestic or foreign)
having capital and surplus in excess of $100,000,000; provided in each case that
the same provides for payment of both principal and interest (and not principal
alone or interest alone) and is not subject to any contingency regarding the
payment of principal or interest.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Collateral Shortfall Amount" is defined in Section 8.1.
"Commitment" means, for each Lender, such Lender's U.S. Commitment,
Canadian Commitment and U.K. Commitment, and "Commitments" means the aggregate
of all of the Lenders' Commitments.
"Computation Date" is defined in Section 2.2.
"Consolidated" means, when used with reference to any financial term in
this Agreement, the aggregate for the Company and its Subsidiaries of the
amounts signified by such term for all such persons determined on a consolidated
basis in accordance with Agreement Accounting Principles.
"Consolidated Capital Expenditures" means, with reference to any
period, the Capital Expenditures of the Company and its Subsidiaries calculated
on a consolidated basis for such period.
"Consolidated Indebtedness" means at any time the Indebtedness of the
Company and its Subsidiaries calculated on a consolidated basis as of such time.
"Consolidated Rentals" means, with reference to any period, the Rentals
of the Company and its Subsidiaries calculated on a consolidated basis for such
period.
"Contingent Obligation" of a Person means any agreement, undertaking or
arrangement by which such Person assumes, guarantees, endorses, contingently
agrees to purchase or provide funds for the payment of, or otherwise becomes or
is contingently liable upon, the obligation or liability of any other Person, or
agrees to maintain the net worth or working capital or other financial condition
of any other Person, or otherwise assures any creditor of such other Person
against loss, including, without limitation, any comfort letter, operating
agreement, take-or-pay contract or the obligations of any such Person as general
partner of a partnership with respect to the liabilities of the partnership.
"Conversion/Continuation Notice" is defined in Section 2.9.
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<PAGE> 5
"Controlled Group" means all members of a controlled group of
corporations or other business entities and all trades or businesses (whether or
not incorporated) under common control which, together with the Borrower or any
of its Subsidiaries, are treated as a single employer under Section 414 of the
Code.
"Corporate Base Rate" means a rate per annum equal to the corporate
base rate of interest announced by NBD Bank, The First National Bank of Chicago
or Bank One from time to time, changing when and as said corporate base rate
changes.
"Cost Rate" means
1. The cost of compliance with existing requirements of the Bank of
England and/or the Financial Services Authority (or any authority which
replaces all or any of their functions) in respect of Advances
denominated in sterling will be calculated by the Agent in relation to
each Advance on the basis of rates supplied by the Agent by reference
to the circumstances existing on the first day of each Interest Period
in respect of such Advance and, if any such Interest Period exceeds
three months, at three calendar monthly intervals from the first day of
such Interest Period during its duration in accordance with the
following formula:
AB +C(B-D) + E x 0.01 per cent per annum
100 - (A+C)
Where:
A. is the percentage of eligible liabilities (assuming these to
be in excess of any stated minimum) which the Agent is from
time to time required to maintain as an interest free cash
ratio deposit with the Bank of England to comply with cash
ratio requirements.
B. is the percentage rate per annum at which sterling deposits
are offered by the Agent in accordance with its normal
practice, for a period equal to (a) the relevant Interest
Period (or, as the case may be, remainder of such Interest
Period) in respect of the relevant Advance of (b) three
months, whichever is the shorter, to a leading bank in the
London Interbank Market at or about 11:00 a.m. in a sum
approximately equal to the amount of such Advance.
C. is the percentage of eligible liabilities which the Agent is
required from time to time to maintain as interest bearing
special deposits with the Bank of England.
D. is the percentage rate per annum payable by the Bank of
England to the Agent on interest bearing special deposits.
E. is the rate payable by the Agent to the Financial Services
authority pursuant to the Fees Regulations (but, for this
purpose, the figure at paragraph [2.02b]/[2.03b] of the Fees
Regulations shall be deemed to be zero) and expressed in
pounds per (pound)1,000,000 of the Fee Base of the Agent.
2. For the purposes of this definition:
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(a) "ELIGIBLE LIABILITIES" and "SPECIAL DEPOSITS" shall bear the
meanings ascribed to them from time to time under or pursuant
to the Bank of England Act 1998 or (as appropriate) by the
Bank of England;
(b) "FEE REGULATIONS" shall mean the Banking Supervision (Fees)
Regulations 1998 or such other regulations as may be in force
from time to time in respect of the payment of fees for
banking supervision; and
(c) "FEE BASE" shall bear the meaning ascribed to it, and shall be
calculated in accordance with, the Fees Regulations.
3. The percentages used in A and C above shall be those required to be
maintained on the first day of the relevant period as determined in
accordance with B above.
4. In application of the above formula, A, B, C and D will be included in
the formula as figures and not as percentages e.g. if A is 0.5 per cent
and B is 12 per cent, AB will be calculated as 0.5 x 12 and not as 0.5
per cent x 12 per cent.
5. Calculations will be made on the basis of a 365 day year (or, if market
practice differs, in accordance with market practice).
6. A negative result obtained by subtracting D from B shall be taken as
zero.
7. The resulting figures shall be rounded upwards, if not already such a
multiple, to the nearest whole multiple of one-thirty second of one
percent per annum.
8. Additional amounts calculated in accordance with this definition are
payable on the last day of the Interest Period to which they relate.
9. The determination of the Associated Costs Rate by the Agent in relation
to any period shall, in the absence of manifest error, be conclusive
and binding on all of the parties hereto.
10. The Agent may from time to time, after prior consultation with the
Company and the Lenders, determine and notify to all parties any
amendments or variations which are required to be made to the formula
set out above in order to comply with any requirement s from time to
time imposed by the Bank of England or the Financial Services Authority
(or any other authority which replaces all or any of their functions)
in relation to Advances denominated in sterling (including any
requirements relating to sterling primary liquidity) and, any such
determination shall, in the absence of manifest error, be conclusive
and binding on all the parties hereto.
"Credit Extension" means the making of an Advance or the issuance of a
Facility LC hereunder.
"Credit Extension Date" means the Borrowing Date for an Advance or the
issuance date for a Facility LC.
"Default" means an event described in Article VII.
"Dollars" and "$" shall mean the lawful currency of the United States
of America.
"EBITDA" means, with respect to any Person, the Net Income of such
Person plus, to the extent deducted from revenues in determining Net Income, (i)
Interest Expense, (ii) expense for taxes paid or
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<PAGE> 7
accrued, (iii) depreciation, (iv) amortization and (v) extraordinary losses
incurred other than in the ordinary course of business, minus, to the extent
included in Net Income, extraordinary gains realized other than in the ordinary
course of business.
"Effective Date" shall mean March 30, 1999.
"Eligible Currency" means any currency other than Dollars (i) that is
readily available, (ii) that is freely traded, (iii) in which deposits are
customarily offered to banks in the London interbank market, (iv) which is
convertible into Dollars in the international interbank market and (v) as to
which an Equivalent Amount may be readily calculated. If, after the designation
by the Lenders of any currency as an Agreed Currency, (x) currency control or
other exchange regulations are imposed in the country in which such currency is
issued with the result that different types of such currency are introduced, (y)
such currency is, in the determination of the Agent, no longer readily available
or freely traded or (z) in the determination of the Agent, an Equivalent Amount
of such currency is not readily calculable, the Agent shall promptly notify the
Lenders and the Company, and such currency shall no longer be an Agreed Currency
until such time as all of the Lenders agree to reinstate such currency as an
Agreed Currency and promptly, but in any event within five Business Days of
receipt of such notice from the Administrative Agent, the Borrower shall repay
all Loans in such affected currency or convert such Loans into Loans in Dollars
or another Agreed Currency, subject to the other terms set forth in Article II.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating to
(i) the protection of the environment, (ii) the effect of the environment on
human health, (iii) emissions, discharges or releases of pollutants,
contaminants, hazardous substances or wastes into surface water, ground water or
land, or (iv) the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of pollutants, contaminants, hazardous
substances or wastes or the clean-up or other remediation thereof.
"Equivalent Amount" of any currency with respect to any amount of
Dollars at any date shall mean the equivalent in such currency of such amount of
Dollars, calculated on the basis of the arithmetical mean of the buy and sell
spot rates of exchange of the Agent for such other currency at 11:00 a.m.,
London time, on the date on or as of which such amount is to be determined.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"Euro" and/or "EUR" means the euro referred to in Council Regulation
(EC) No. 1103/97 dated June 17, 1997 passed by the Council of the European
Union, or, if different, the then lawful currency of the member states of the
European Union that participate in the third stage of Economic and Monetary
Union.
"Eurocurrency Advance" means an Advance which bears interest at the
applicable Eurocurrency Rate.
"Eurocurrency Loan" means a Loan which bears interest at the applicable
Eurocurrency Rate.
"Eurocurrency Payment Office" of the Agent shall mean, for each of the
Agreed Currencies, the office, branch, affiliate or correspondent bank of the
Agent specified as the "Eurocurrency Payment Office" for such currency in
Schedule 1.2 hereto or such other office, branch, affiliate or correspondent
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<PAGE> 8
bank of the Agent as it may from time to time specify to the Borrower and each
Lender as its Eurocurrency Payment Office.
"Eurocurrency Rate" means, with respect to a Eurocurrency Advance for
the relevant Interest Period, the sum of (i) the quotient of (a) the
Eurocurrency Reference Rate applicable to such Interest Period, divided by (b)
one minus the Reserve Requirement (expressed as a decimal) applicable to such
Interest Period, plus (ii) the Applicable Margin.
"Eurocurrency Reference Rate" means, with respect to a Eurocurrency
Advance for the relevant Interest Period, (i) with respect to any Eurocurrency
Advance denominated in Canadian Dollars, the rate quoted to the Borrower
requesting such loan by the Canadian Lender at approximately 11:00 a.m. (Detroit
time) two Business Days prior to the first day of such Interest Period as the
current estimated cost to the Canadian Lender, expressed as an annual rate of
interest, of funding short term loans for the period in an aggregate amount
comparable to the amount of such loan to be made by the Canadian Lender, as
conclusively determined by the Canadian Lender, and (ii) with respect to any
other Eurocurrency Advance, the rate determined by the Agent to be the rate at
which NBD, First Chicago or Bank One or any of their Affiliates, offers to place
deposits in the applicable Agreed Currency with first-class banks in the London
interbank market at approximately 11:00 a.m. (London time) two Business Days
prior to the first day of such Interest Period, in the approximate amount of
NBD's relevant Eurocurrency Loan and having a maturity equal to such Interest
Period, plus, with respect to any Loan denominated in British Pounds Sterling,
the Cost Rate.
"Euro Implementation Date" means January 1, 1999.
"Excluded Taxes" means, in the case of each Lender or applicable
Lending Installation and the Agent, taxes imposed on its overall net income, and
franchise taxes imposed on it, by (i) the jurisdiction under the laws of which
such Lender or the Agent is incorporated or organized or (ii) the jurisdiction
in which the Agent's or such Lender's principal executive office or such
Lender's applicable Lending Installation is located.
"Exhibit" refers to an exhibit to this Agreement, unless another
document is specifically referenced.
"Facility LC" or "Facility Letter of Credit" means a Letter of Credit
issued by the LC Issuer pursuant to Section 2.15.
"Facility LC Application" is defined in Section 2.15.3.
"Facility LC Collateral Account" is defined in Section 2.15.11.
"Facility Letter of Credit Obligations" means, at any time, the sum,
without duplication, of (i) the aggregate undrawn stated amount under all
Facility LCs outstanding at such time plus (ii) the aggregate unpaid amount at
such time of all Reimbursement Obligations.
"Facility Termination Date" means April 30, 2002, or any earlier date
on which the Aggregate Commitment is reduced to zero or otherwise terminated
pursuant to the terms hereof
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day
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<PAGE> 9
is not a Business Day, for the immediately preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations at approximately
10:00 a.m. (Detroit time) on such day on such transactions received by the Agent
from three Federal funds brokers of recognized standing selected by the Agent in
its sole discretion.
"Financial Contract" of a Person means (i) any exchange-traded or
over-the-counter futures, forward, swap or option contract or other financial
instrument with similar characteristics, or (ii) any Rate Hedging Agreement.
"First Chicago" means The First National Bank of Chicago in its
individual capacity, and its successors.
"Fixed Charge Coverage Ratio" means, with respect to any Person, as of
the last day of any fiscal quarter of such Person, the ratio of (a) EBITDA of
such Person, plus Rentals paid or payable by such Person, minus Capital
Expenditures of such Person, to (b) Fixed Charges of such Person, in each case
as calculated for the four consecutive fiscal quarters then ending, all as
determined in accordance with Agreement Accounting Principles.
"Fixed Charges" means, for any period and with respect to any Person,
the sum, without duplication, of (a) Interest Expense of such Person, plus (b)
all payments of principal and other sums required to be paid during such period
by such Person with respect to Indebtedness of such Person, plus (c) Rentals
paid or payable during such period by such Person, plus (d) all dividends,
distributions and other obligations paid with respect to any class of such
Person's Capital Stock or any dividend, payment or distribution paid in
connection with the redemption, purchase, retirement or other acquisition,
directly or indirectly, of any shares of such Person's Capital Stock.
"Floating Rate" means, for any day, a rate per annum equal to (i) the
Alternate Base Rate for such day plus (ii) the Applicable Margin, in each case
changing when and as the Alternate Base Rate changes.
"Floating Rate Advance" means an Advance which bears interest at the
Floating Rate.
"Floating Rate Loan" means a Loan which bears interest at the Floating
Rate.
"Foreign Subsidiary" means each Subsidiary organized under the laws of
a jurisdiction outside of the United States.
"Foreign Subsidiary Borrower" means each Foreign Subsidiary listed as a
Foreign Subsidiary Borrower in Schedule 1.1 as amended from time to time in
accordance with Section 8.2.2.
"Foreign Subsidiary Opinion" means, with respect to any Foreign
Subsidiary Borrower, a legal opinion of counsel to such Foreign Subsidiary
Borrower addressed to the Agent and the Lenders concluding that such Foreign
Subsidiary Borrower and the Loan Documents to which it is a party substantially
comply with the matters listed on Exhibit G, with such assumptions,
qualifications and deviations therefrom as the Agent shall approve (such
approval not to be unreasonably withheld).
"Guarantor" means, with respect to the Obligations of the Foreign
Subsidiary Borrowers, the Company and any other Person executing a Guaranty from
time to time.
"Guaranty" means that certain guarantee contained in Article IX and any
other guarantee entered into in connection with this Agreement from time to
time.
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"Indebtedness" of a Person means such Person's (i) obligations for
borrowed money, (ii) obligations representing the deferred purchase price of
Property or services (other than accounts payable arising in the ordinary course
of such Person's business payable on terms customary in the trade and other than
any earn-out or other contingent obligations incurred by such Person in
connection with any Acquisition), (iii) obligations, whether or not assumed,
secured by Liens or payable out of the proceeds or production from Property now
or hereafter owned or acquired by such Person, (iv) obligations which are
evidenced by notes, acceptances, or other instruments, (v) obligations of such
Person to purchase securities or other Property arising out of or in connection
with the sale of the same or substantially similar securities or Property, (vi)
Capitalized Lease Obligations, (vii) all obligations in respect of Letters of
Credit, whether drawn or undrawn, contingent or otherwise, (viii) any other
obligation for borrowed money or other financial accommodation which in
accordance with Agreement Accounting Principles would be shown as a liability on
the consolidated balance sheet of such Person, (ix) all other indebtedness,
obligations and liabilities incurred in connection with any asset
securitizations, regardless of whether such indebtedness, obligations or other
liabilities are recourse or non recourse to such Person and regardless of
whether such indebtedness, obligations or other liabilities are required to be
shown as a liability on the consolidated balance sheet of such Person in
accordance with Agreement Accounting Principles, and (x) Contingent Obligations
with respect to any of the foregoing.
"Interest Expense" means, with respect to any Person and with reference
to any period, the interest expense of such Person.
"Interest Period" means, with respect to a Eurocurrency Advance, a
period of one, two, three or six months commencing on a Business Day selected by
the Borrower pursuant to this Agreement. Such Interest Period shall end on the
day which corresponds numerically to such date one, two, three or six months
thereafter, provided, however, that if there is no such numerically
corresponding day in such next, second, third or sixth succeeding month, such
Interest Period shall end on the last Business Day of such next, second, third
or sixth succeeding month. If an Interest Period would otherwise end on a day
which is not a Business Day, such Interest Period shall end on the next
succeeding Business Day, provided, however, that if said next succeeding
Business Day falls in a new calendar month, such Interest Period shall end on
the immediately preceding Business Day.
"Investment" of a Person means any loan, advance (other than
commission, travel and similar advances to officers and employees made in the
ordinary course of business), extension of credit (other than accounts
receivable arising in the ordinary course of business on terms customary in the
trade) or contribution of capital by such Person; stocks, bonds, mutual funds,
partnership interests, notes, debentures or other securities owned by such
Person; any deposit accounts and certificate of deposit owned by such Person;
and structured notes, derivative financial instruments and other similar
instruments or contracts owned by such Person.
"Issuer" means NBD (or any Lending Installation of NBD designated by
NBD) in its capacity as issuer of Facility LCs hereunder.
"Joinder Agreement" means the Joinder Agreement to be entered into by
each Foreign Subsidiary Borrower subsequent to the date hereof pursuant to
Section 8.2.2, substantially in the form of Exhibit A hereto.
"Lenders" means the lending institutions listed on the signature pages
of this Agreement and their respective successors and assigns.
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"Lending Installation" means, with respect to a Lender, the LC Issuer
or the Agent, the office, branch, subsidiary or affiliate of such Lender, the LC
Issuer or the Agent with respect to each Agreed Currency listed on Schedule
1.2/the administrative information sheets provided to the Agent in connection
herewith or otherwise selected by the Lender, the LC Issuer or the Agent.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
"Leverage Ratio" means, as of any date of calculation, the ratio of (i)
Consolidated Total Debt outstanding on such date to (ii) Consolidated EBITDA for
the Company's then most-recently ended four fiscal quarters.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other title retention
agreement).
"Loan" means, with respect to a Lender, such Lender's Revolving Credit
Loans and, with respect to the Agent, Swing Loans.
"Loan Documents" means this Agreement, the Facility LC Applications and
any Notes issued pursuant to Section 2.13 and the other agreements, certificates
and other documents contemplated hereby or executed or delivered pursuant hereto
by any Borrower at any time in favor of the Agent, the LC Issuer or any Lender.
"Material Adverse Effect" means a material adverse effect on (i) the
business, Property, condition (financial or otherwise), results of operations,
or prospects of the Company and its Subsidiaries taken as a whole, (ii) the
ability of any Borrower to perform its obligations under the Loan Documents to
which it is a party, or (iii) the validity or enforceability of any of the Loan
Documents or the rights or remedies of the Agent, the LC Issuer or the Lenders
thereunder.
"Material Indebtedness" is defined in Section 7.5.
"Modify" and "Modification" are defined in Section 2.19.1.
"Moody's" means Moody's Investors Service, Inc.
"Multicurrency Advance" means a borrowing hereunder (or continuation or
a conversion thereof) consisting of the several Multicurrency Loans made on the
same Borrowing Date (or date of conversion or continuation) by the Lenders to a
Borrower of the same Type, in the same Agreed Currency and for the same Interest
Period.
"Multicurrency Facility Letter of Credit" means any Facility Letter of
Credit for the account of a Foreign Subsidiary Borrower.
"Multicurrency Facility Letter of Credit Obligations" means Facility
Letter of Credit Obligations with respect to Multicurrency Facility Letters of
Credit.
"Multicurrency Lender" means any Lender which has a Canadian Commitment
or a U.K. Commitment.
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"Multicurrency Loans" means any Canadian Revolving Credit Loans or U.K.
Revolving Credit Loans and any Swing Loans made to the Canadian Borrower or the
U.K. Borrower.
"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Borrower or any
member of the Controlled Group is a party to which more than one employer is
obligated to make contributions.
"National Currency Unit" means the unit of currency (other than a Euro
unit) of each member state of the European Union that participates in the third
stage of Economic and Monetary Union.
"NBD" means NBD Bank, in its individual capacity, and its successors.
"Net Income" means, with respect to any Person and with reference to
any period, the net income (or loss) of such Person from continuing operations
calculated for such period.
"Net Worth" means, with respect to any Person, at any time the
consolidated stockholders' equity of such Person, without giving effect to any
foreign currency translation adjustment account.
"Non-U.S. Borrower" is defined in Section 3.1(b).
"Non-U.S. Lender" is defined in Section 3.5(iv).
"Note" means any promissory note issued at the request of a Lender
pursuant to this Agreement.
"Notice of Assignment" is defined in Section 13.3.2.
"Obligations" means collectively, the unpaid principal of and interest
on the Loans, all obligations and liabilities pursuant to the Facility Letters
of Credit, all Rate Hedging Obligations and all other obligations and
liabilities of each Borrower to the Agent, the LC Issuer or the Lenders
(including Affiliates of such Lenders in the case of Rate Hedging obligations)
under this Agreement and the other Loan Documents (including, without
limitation, interest accruing at the then applicable rate provided in this
Agreement or any other applicable Loan Document after the maturity of the Loans
and interest accruing at the then applicable rate provided in this Agreement or
any other applicable Loan Document after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to any Borrower whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding), whether direct or
indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection with, this
Agreement, the other Loan Documents or any other document made, delivered or
given in connection therewith, in each case whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs, expenses or
otherwise (including, without limitation, all reasonable fees and disbursements
of counsel to the Agent, the LC Issuer or to the Lenders that are required to be
paid by any Borrower pursuant to the terms of this Agreement or any other Loan
Document).
"Operating Lease" of a Person means any lease of Property (other than a
Capitalized Lease) by such Person as lessee which has an original term
(including any required renewals and any renewals effective at the option of the
lessor) of one year or more.
"Other Taxes" is defined in Section 3.5(ii).
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"Outstanding Credit Exposure" means, as to any Lender at any time, the
sum of (i) the aggregate principal amount of its Loans outstanding at such time,
plus (ii) an amount equal to its Pro Rata Share of the Facility Letter of Credit
Obligations at such time, plus (iii) an amount equal to its Pro Rata Share of
Swing Loans outstanding at such time.
"Participants" is defined in Section 13.2.1.
"Payment Date" means the last Business Day of each March, June,
September and December occurring after the Effective Date, commencing June 30,
1999.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"Person" means any natural person, corporation, firm, joint venture,
partnership, limited liability company, association, enterprise, trust or other
entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof.
"Plan" means an employee pension benefit plan which is covered by Title
IV of ERISA or subject to the minimum funding standards under Section 412 of the
Code as to which the Borrower or any member of the Controlled Group may have any
liability.
"Pricing Schedule" means the Schedule attached hereto identified as
such.
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets owned,
leased or operated by such Person.
"Pro Rata Share" means, for each Lender, the ratio of such Lender's
Commitment (calculated using the U.S. Dollar Equivalent thereof) to the
Aggregate Commitment (calculated using the U.S. Dollar Equivalent thereof),
provided that (a) with respect to U.S. Revolving Credit Loans, U.S. Facility
Letters of Credit, Swing Loans made to the Company and facility fees with
respect to the U.S. Commitment, Pro Rata Share means, for each Lender, the ratio
such Lender's U.S. Commitment bears to the Aggregate U.S. Commitments, (b) with
respect to Canadian Revolving Credit Loans, Canadian Facility Letters of Credit,
Swing Loans made to the Canadian Borrower and facility fees with respect to the
Canadian Commitment, Pro Rata Share means, for each Lender, the ratio such
Lender's Canadian Commitment bears to the Aggregate Canadian Commitments, and
(c) with respect to U.K. Revolving Credit Loans, U.K. Facility Letters of
Credit, Swing Loans made to the U.K. Borrower and facility fees with respect to
the U.K. Commitment, Pro Rata Share means, for each Lender, the ratio such
Lender's U.K. Commitment bears to the Aggregate U.K. Commitments. If at any time
the Commitments have been terminated, the amount of any Commitment for the
purposes of this definition of "Pro Rata Share" only shall be deemed equal to
the amount of such Commitment immediately prior to its termination.
"Purchasers" is defined in Section 13.3.1.
"Rate Hedging Agreement" means an agreement, device or arrangement
providing for payments which are related to fluctuations of interest rates,
exchange rates or forward rates, including, but not limited to,
dollar-denominated or cross-currency interest rate exchange agreements, forward
currency exchange agreements, interest rate cap or collar protection agreements,
forward rate currency or interest rate options, puts and warrants.
"Rate Hedging Obligations" of a Person means any and all obligations of
such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (i) any and all Rate
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Hedging Agreements, and (ii) any and all cancellations, buy backs, reversals,
terminations or assignments of any Rate Hedging Agreement
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor thereto
or other regulation or official interpretation of said Board of Governors
relating to reserve requirements applicable to member banks of the Federal
Reserve System.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks for the purpose of purchasing or carrying margin
stocks applicable to member banks of the Federal Reserve System.
"Reimbursement Obligations" means, at any time, the aggregate of all
obligations of the Borrowers then outstanding under Section 2.15 to reimburse
the LC Issuer for amounts paid by the LC Issuer in respect of any one or more
drawings under Facility LCs.
"Rentals" of a Person means the aggregate fixed amounts payable by such
Person under any Operating Lease.
"Reportable Event" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC has by regulation waived
the requirement of Section 4043(a) of ERISA that it be notified within 30 days
of the occurrence of such event, provided, however, that a failure to meet the
minimum funding standard of Section 412 of the Code and of Section 302 of ERISA
shall be a Reportable Event regardless of the issuance of any such waiver of the
notice requirement in accordance with either Section 4043(a) of ERISA or Section
412(d) of the Code.
"Required Canadian Lenders" means (a) at any time prior to the
termination of the Canadian Commitments, Canadian Lenders holding not less than
51% of the Aggregate Canadian Commitments of all Canadian Lenders and (b) at any
time after the termination of the Canadian Commitments, Canadian Lenders whose
aggregate Canadian Revolving Credit Loans and Pro Rata Shares of Canadian
Facility Letters of Credit aggregate at least 51% of the Aggregate Canadian
Revolving Credit Loans of all Canadian Lenders and all Canadian Facility Letters
of Credit.
"Required Lenders" means (a) at any time prior to the termination of
the Commitments, Lenders holding not less than 51% of the U. S. Dollar
Equivalent of the aggregate Commitments of all Lenders; and (b) at any time
after the termination of the Commitments, Lenders whose Aggregate Total
Outstandings aggregate at least 51% of the Aggregate Total Outstandings of all
Lenders.
"Required U.K. Lenders" means (a) at any time prior to the termination
of the U.K. Commitments, U.K. Lenders holding not less than 51% of the aggregate
U.K. Commitments of all U.K. Lenders and (b) at any time after the termination
of the U.K. Commitments, U.K. Lenders whose aggregate U.K. Loans and Pro Rata
Shares of U.K. Facility Letters of Credit aggregate at least 51% of the
Aggregate U.K. Loans of all U.K. Lenders and all U.K. Facility Letters of
Credit.
"Required U.S. Lenders" means (a) at any time prior to the termination
of the U.S. Commitments, U.S. Lenders holding not less than 51% of the aggregate
U.S. Commitments of all U.S. Lenders and (b) at any time after the termination
of the U.S. Commitments, U.S. Lenders whose aggregate U.S. Loans and Pro Rata
Shares of U.S. Facility Letters of Credit aggregate at least 51% of the
Aggregate U.S. Loans of all U.S. Lenders and all U.S. Facility Letters of
Credit.
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"Reserve Requirement" means, with respect to an Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on Eurocurrency
liabilities.
"Revolving Credit Loans" means, with respect to a Lender, such Lender's
loans made pursuant to Section 2.1.
"S&P" means Standard and Poor's Ratings Services, a division of The
McGraw Hill Companies, Inc.
"Sale and Leaseback Transaction" means any sale or other transfer of
Property by any Person with the intent to lease such Property as lessee.
"Schedule" refers to a specific schedule to this Agreement, unless
another document is specifically referenced.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Senior Note Agreement" means the Note Purchase Agreement dated as of
January 21, 1998 between the Company and The Prudential Insurance Company of
America related to the $30,000,000 7.6% Senior Notes due January 15, 2008, as
amended or modified from time to time.
"Single Employer Plan" means a Plan maintained by the Borrower or any
member of the Controlled Group for employees of the Borrower or any member of
the Controlled Group.
"Subordinated Indebtedness" of a Person means any Indebtedness of such
Person the payment of which is subordinated to payment of the Secured
Obligations to the written satisfaction of the Required Lenders in their
reasonable discretion.
"Subsidiary" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(ii) any partnership, limited liability company, association, joint venture or
similar business organization more than 50% of the ownership interests having
ordinary voting power of which shall at the time be so owned or controlled.
Unless otherwise expressly provided, all references herein to a "Subsidiary"
shall mean a Subsidiary of the Company.
"Substantial Portion" means, as of any date, with respect to the
Property of the Borrower and its Subsidiaries, Property which (i) represents
more than 10% of the consolidated assets of the Borrower and its Subsidiaries as
would be shown in the consolidated financial statements of the Borrower and its
Subsidiaries as of such date, or (ii) is responsible for more than 10% of the
consolidated net sales or of the consolidated net income of the Borrower and its
Subsidiaries as reflected in the financial statements referred to in clause (i)
above at the beginning of the twelve-month period ending with the month in which
such determination is made.
"Swing Loans" is defined in Section 2.16.
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings, and any and all liabilities with
respect to the foregoing, but excluding Excluded Taxes.
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"Total Debt" as of any date, means all of the following for the Company
and its Subsidiaries on a Consolidated basis and without duplication: (i) all
debt for borrowed money and similar monetary obligations evidenced by bonds,
notes, debentures, Capitalized Lease Obligations or otherwise, including without
limitation obligations in respect of the deferred purchase price of properties
or assets, in each case whether direct or indirect; (ii) all liabilities secured
by any Lien existing on property owned or acquired subject thereto, whether or
not the liability secured thereby shall have been assumed; and (iii) all
reimbursement obligations under outstanding letters of credit in respect of
drafts which have been presented and have not yet been paid and are not included
in clause (i) above.
"Transferee" is defined in Section 13.4.
"Type" means, with respect to any Advance, its nature as a Floating
Rate Advance or a Eurocurrency Advance.
"U.K. Borrower" means any Foreign Subsidiary Borrower from time to time
designated on Schedule 1.1 as the "U.K. Borrower".
"U.K. Facility Letter of Credit" means any Letter of Credit for the
account of the U.K. Borrower.
"U.K. Facility Letter of Credit Obligations" means Facility Letter of
Credit Obligations with respect to U.K. Facility Letters of Credit.
"U.K. Commitment" means, as to any Lender at any time, its obligation
to make Revolving Credit Loans to the U.K. Borrower under Section 2.1.3 in an
aggregate amount not to exceed at any time outstanding the Equivalent Amount in
British Pounds Sterling of the Dollar amount set forth opposite such Lender's
name in Schedule 1.1 under the heading "U.K. Commitment" or as otherwise
established pursuant to Section 13.3, as such amount may be reduced from time to
time pursuant to Sections 2.4, 13.3 and the other applicable provisions hereof.
"U.K. Lender" means any Lender which has a U.K. Commitment.
"U.K. Loans" means Revolving Credit Loans made to the U.K. Borrower
under Section 2.1.3.
"Unfunded Liabilities" means the amount (if any) by which the present
value of all vested and unvested accrued benefits under all Single Employer
Plans exceeds the fair market value of all such Plan assets allocable to such
benefits, all determined as of the then most recent valuation date for such
Plans using PBGC actuarial assumptions for single employer plan terminations.
"Unmatured Default" means an event which but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"U.S. Dollar Equivalent" means, on any date with respect to an amount
denominated in any currency other than U.S. Dollars, the equivalent in U.S.
Dollars of such amount determined at the Exchange Rate on the date of
determination of such equivalent.
"U.S. Facility Letter of Credit" means any Letter of Credit for the
account of the Company.
"U.S. Facility Letter of Credit Obligations" means Facility Letter of
Credit Obligations with respect to U.S. Facility Letters of Credit.
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"U.S. Commitment" means, as to any Lender at any time, its obligation
to make Revolving Credit Loans to the Company in Dollars in an aggregate amount
not to exceed at any time outstanding the U.S. Dollar amount set forth opposite
such Lender's name in Schedule 1.1 under the heading "U.S. Commitment" or as
otherwise established pursuant to Section 13.3, as such amount may be reduced
from time to time pursuant to Sections 2.4, 13.3 and the other applicable
provisions hereof.
"U.S. Lender" means any Lender which has a U.S. Commitment.
"U.S. Revolving Credit Loans" means Revolving Credit Loans made to the
Company pursuant to Section 2.1.1.
"Wholly-Owned Subsidiary" of a Person means (i) any Subsidiary all of
the outstanding voting securities of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person, or (ii) any partnership, limited liability company,
association, joint venture or similar business organization 100% of the
ownership interests having ordinary voting power of which shall at the time be
so owned or controlled.
"Year 2000 Issues" means anticipated costs, problems and uncertainties
associated with the inability of certain computer applications to effectively
handle data including dates on and after January 1, 2000, as such inability
materially affects the business, operations and financial condition of the
Borrower and its Subsidiaries.
"Year 2000 Program" is defined in Section 5.19.
1.2 RULES OF CONSTRUCTION. The foregoing definitions shall be equally
applicable to both the singular and plural forms of the defined terms.
Notwithstanding anything herein, and in any financial statements of the Company
or in Agreement Accounting Principles to the contrary, for purposes of
calculating and determining compliance with the financial covenants in Section
6.20 and in connection with calculating the Applicable Facility Fee Rate, the
Applicable Facility LC Rate and the Applicable Margin under the Pricing
Schedule, any Acquisition made by the Company or any of its Subsidiaries,
including through mergers or consolidations and including any related financial
transactions, during the period for which such financial covenants were
calculated shall be deemed to have occurred on the first day of the relevant
period for which such financial covenants were calculated on a pro forma basis
consistent with standard industry practice and SEC guidelines.
ARTICLE II.
THE CREDITS
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2.1 COMMITMENTS.
2.1.1 From and including the Effective Date and prior to the
Facility Termination Date, each U.S. Lender severally agrees, on the terms and
conditions set forth in this Agreement, to make U.S. Revolving Credit Loans to
the Company from time to time so long as after giving effect thereto and to any
concurrent repayment of Loans the Aggregate U.S. Outstandings of each U.S.
Lender are equal to or less than its U.S. Commitment. Subject to the terms of
this Agreement, the Company may borrow, repay and reborrow U.S. Revolving Credit
Loans at any time prior to the Facility Termination Date. The U.S. Revolving
Credit Loans may be Floating Rate Loans or Eurocurrency Loans, or a combination
thereof
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selected in accordance with Sections 2.3 and 2.7. The U.S. Commitments to lend
hereunder shall expire on the Facility Termination Date.
2.1.2 From and including the Effective Date and prior to the
Facility Termination Date, each Canadian Lender severally agrees, on the terms
and conditions set forth in this Agreement, to make Canadian Revolving Credit
Loans to the Canadian Borrower from time to time so long as after giving effect
thereto and to any concurrent repayment of Loans the Aggregate Canadian
Outstandings of each Canadian Lender are equal to or less than its Canadian
Commitment. Subject to the terms of this Agreement, the Canadian Borrower may
borrow, repay and reborrow Canadian Revolving Credit Loans at any time prior to
the Facility Termination Date. The Canadian Revolving Credit Loans will be
Eurocurrency Loans as selected in accordance with Sections 2.3 and 2.7. The
Canadian Commitments to lend hereunder shall expire on the Facility Termination
Date.
2.1.3 From and including the Effective Date of this Agreement and
prior to the Facility Termination Date, each U.K. Lender severally agrees, on
the terms and conditions set forth in this Agreement, to make U.K. Revolving
Credit Loans to the U.K. Borrower from time to time so long as after giving
effect thereto and to any concurrent repayment of Loans the Aggregate U.K.
Outstandings of each U.K. Lender are equal to or less than its U.K. Commitment.
Subject to the terms of this Agreement, the U.K. Borrower may borrow, repay and
reborrow U.K. Revolving Credit Loans at any time prior to the Facility
Termination Date. The U.K. Revolving Credit Loans will be Eurocurrency Loans as
selected in accordance with Sections 2.3 and 2.7. The U.K. Commitments to lend
hereunder shall expire on the Facility Termination Date.
2.2 REPAYMENT OF LOANS; EVIDENCE OF DEBT.
2.2.1 (a) The Company hereby unconditionally promises to pay to the
Agent for the account of each U.S. Lender in U.S. Dollars the then unpaid
principal amount of each U.S. Revolving Credit Loan of such Lender on the
Facility Termination Date and on such other dates and in such other amounts as
may be required from time to time pursuant to this Agreement. The Company hereby
further agrees to pay to the Agent for the account of each U.S. Lender interest
in U.S. Dollars on the unpaid principal amount of the U.S. Revolving Credit
Loans from time to time outstanding until payment thereof in full at the rates
per annum, and on the dates, set forth in Section 2.8.
(b) The Canadian Borrower hereby unconditionally promises to
pay to the Agent for the account of each Canadian Lender in Canadian Dollars the
then unpaid principal amount of each Canadian Revolving Credit Loan of such
Lender on the Facility Termination Date and on such other dates and in such
other amounts as may be required from time to time pursuant to this Agreement.
The Canadian Borrower hereby further agrees to pay to the Agent for the account
of each Canadian Lender interest in Canadian Dollars on the unpaid principal
amount of the Canadian Revolving Credit Loans from time to time outstanding
until payment thereof in full at the rates per annum, and on the dates, set
forth in Section 2.8.
(c) The U.K. Borrower hereby unconditionally promises to pay
to the Agent for the account of each U.K. Lender in British Pounds Sterling the
then unpaid principal amount of each U.K. Revolving Credit Loan of such Lender
on the Facility Termination Date and on such other dates and in such other
amounts as may be required from time to time pursuant to this Agreement. The
U.K. Borrower hereby further agrees to pay to the Agent for the account of each
U.K. Lender interest in British Pounds Sterling on the unpaid principal amount
of the U.K. Revolving Credit Loans from time to time outstanding until payment
thereof in full at the rates per annum, and on the dates, set forth in Section
2.8.
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2.2.2 The books and records of the Agent and of each Lender shall,
to the extent permitted by applicable law, be prima facie evidence of the
existence and amounts of the obligations of the Borrowers therein recorded;
provided, however, that the failure of any Lender or the Agent to maintain any
such books and records or any error therein, shall not in any manner affect the
obligation of the Borrowers to repay (with applicable interest) the Loans made
to such Borrowers by such Lender in accordance with the terms of this Agreement.
2.2.3 The Borrowers agree that, upon the request to the Agent by
any Lender, the relevant Borrowers will execute and deliver to such Lender
promissory notes of each Borrower evidencing the Revolving Credit Loans of such
Lender, substantially in the form of Exhibit B with appropriate insertions as to
date, currency and principal amount (each, a "Revolving Credit Note") provided,
that the delivery of such Notes shall not be a condition precedent to the
Effective Date.
2.3 PROCEDURES FOR REVOLVING CREDIT BORROWING.
(a) The Company may borrow under the U.S. Commitments, the Canadian
Borrower may borrow under the Canadian Commitments, and the U.K. Borrower may
borrow under the U.K. Commitments, in each case from time to time prior to the
Facility Termination Date on any Business Day.
(b) The Company shall give the Agent irrevocable notice (which
notice must be received by the Agent prior to 12:00 p.m., Detroit time) (i)
three Business Days prior to the requested Borrowing Date, if all or any part of
the requested Revolving Credit Loans are to be initially Eurocurrency Loans, or
(ii) one Business Day prior to the requested Borrowing Date otherwise,
specifying in each case (w) the amount to be borrowed, (x) the requested
Borrowing Date, (y) whether the borrowing is to be of Eurocurrency Loans,
Floating Rate Loans or a combination thereof and (z) if the borrowing is to be
entirely or partly of Eurocurrency Loans, the amount of such Type of Loan and
the length of the initial Interest Periods therefor. Each borrowing under the
U.S. Commitments shall be in an amount equal to (A) in the case of Floating Rate
Loans, $100,000 or a whole multiple of $100,000 in excess thereof (or, if the
then aggregate available U.S. Commitments are less than $100,000, such lesser
amount) and (B) in the case of Eurocurrency Loans, $1,000,000 or a whole
multiple of $100,000 in excess thereof. Upon receipt of any such notice from the
Company, the Agent shall promptly notify each Lender thereof. Not later than
11:00 a.m., Detroit time on each requested Borrowing Date each Lender shall make
an amount equal to its Pro Rata Share of the principal amount of the Revolving
Credit Loans requested to be made on such Borrowing Date available to the Agent
at its Detroit office specified in Section 14.1 in U.S. Dollars and in
immediately available funds. The Agent shall on such date credit the account of
the Company on the books of such office with the aggregate of the amounts made
available to the Agent by the Lenders and in like funds as received by the
Agent.
(c) Each Foreign Subsidiary Borrower shall give the Agent
irrevocable notice (which notice must be received by the Agent prior to 12:00
p.m., local time of the Agent's funding office three Business Days prior to the
requested Borrowing Date) specifying in each case (i) the amount to be borrowed,
(ii) the requested Borrowing Date and (iii) the length of the initial Interest
Period therefor. Each borrowing by the Canadian Borrower shall be in Canadian
Dollars or Dollars and each borrowing by the U.K. Borrower shall be in British
Pounds Sterling. Each borrowing by any Foreign Subsidiary Borrower shall be in
an amount equal to an amount in the relevant Agreed Currency which is 1,000,000
units or a whole multiple of 100,000 units in excess thereof or such other
amounts as may be agreed upon among the Company and the Agent. Upon receipt of
any such notice from any such Borrower, the Agent shall promptly notify the
relevant Lenders with respect to such Borrower. Not later than 2:00 p.m., local
time of the Agent's funding office for such Borrower, on the requested Borrowing
Date, each such Lender shall make an amount equal to its Pro Rata Share of the
principal amount of such Revolving Loans requested to be made on such Borrowing
Date available to the Agent at the Agent's funding office for
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such Borrower specified by the Agent from time to time by notice to such Lenders
and in immediately available or other same day funds customarily used for
settlement in the relevant Available Foreign Currency. The amounts made
available by each such Lender will then be made available to the relevant
Borrower at the funding office for such Borrower and in like funds as received
by the Agent.
2.4 TERMINATION OR REDUCTION OF COMMITMENTS. The Canadian Borrower may
permanently reduce the Canadian Commitments, in whole or in part, ratably among
the Canadian Lenders in integral multiples of CDN$1,000,000, the U.K. Borrower
may permanently reduce the U.K. Commitments, in whole or in part, ratably among
the U.K. Lenders in integral multiples of (pound)1,000,000 and the Company may
permanently reduce the U.S. Commitments, in whole or in part, ratably among the
U.S. Lenders in integral multiples of $5,000,000, in each case upon at least
three Business Days' irrevocable written notice to the Agent, and which notice
shall specify the amount of any such reduction, provided, however, that the
Aggregate Canadian Commitments may not be reduced below the Aggregate Canadian
Outstandings of all Lenders, the Aggregate U.K. Commitments may not be reduced
below the Aggregate U.K. Outstandings of all Lenders, and the Aggregate U.S.
Commitments may not be reduced below the Aggregate U.S. Outstandings of all
Lenders. In addition, all accrued facility fees shall be payable on the
effective date of any termination of the Commitments.
2.5 FACILITY AND AGENT FEES.
(a) Each Borrower agrees to pay to the Agent for the account of
each Lender a facility fee at the rate per annum equal to the Applicable
Facility Fee Rate set forth in the Pricing Schedule, on the average daily amount
of each Commitment of such Lender to such Borrower, whether used or unused, from
and including the Effective Date to but excluding the Facility Termination Date,
payable on each Payment Date hereafter and on the Facility Termination Date. The
facility fee payable in respect to each Commitment shall be payable in the
currency in which such Commitment is denominated.
(b) The Company agrees to pay to the Agent for its own account,
such other fees as agreed to in writing between the Company and the Agent.
2.6 OPTIONAL AND MANDATORY PRINCIPAL PAYMENTS ON ALL LOANS.
2.6.1 The Company may at any time and from time to time prepay
Floating Rate Loans, in whole or in part, without penalty or premium, upon at
least one Business Day's irrevocable notice to the Agent, specifying the date
and amount of prepayment. If any such notice is given, the amount specified in
such notice shall be due and payable on the date specified therein. Partial
prepayment of Floating Rate Loans shall be in a minimum aggregate amount of
$100,000 or any integral multiple of $100,000 in excess thereof.
2.6.2 Each Borrower may at any time and from time to time prepay,
without premium or penalty (but together with payment of any amount payable
pursuant to Section 3.4), its Eurocurrency Loans and its Multicurrency Loans in
whole or in part, upon at least three Business Days' irrevocable notice to the
Agent specifying the date and amount of prepayment. Partial payments of
Eurocurrency Loans shall be in a minimum aggregate amount of $1,000,000 or any
integral multiple of $100,000 in excess thereof. Partial prepayments of
Multicurrency Loans shall be in an aggregate principal amount in the relevant
Available Foreign Currency of 1,000,000 units or any integral multiple of
100,000 units in excess thereof, or such lesser principal amount as may equal
the outstanding Multicurrency Loans or such lesser amount as may be agreed to by
the Agent.
2.6.3 (i) If the Aggregate Canadian Outstandings exceed the
Aggregate Canadian Commitments at any time the Canadian Borrower shall promptly
prepay the Aggregate Canadian
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Outstandings in the amount of such excess, (ii) if the Aggregate U.K.
Outstandings exceed the Aggregate U.K. Commitments at any time the U.K. Borrower
shall promptly prepay the Aggregate U.K. Outstandings in the amount of such
excess, and (iii) if the Aggregate U.S. Outstandings exceed the Aggregate U.S.
Commitments at any time the Company shall promptly prepay the Aggregate U.S.
Outstandings in the amount of such excess.
2.6.4 Each prepayment pursuant to this Section 2.6 and each
conversion pursuant to Section 2.7 shall be accompanied by accrued and unpaid
interest on the amount prepaid to the date of prepayment and any amounts payable
under Section 3.4 in connection with such payment.
2.6.5 Prepayments pursuant to this Section 2.6 shall be applied as
follows: (a) in the case of prepayments made by the Company, first to prepay
Floating Rate Loans and second to prepay Eurocurrency Loans then outstanding in
such order as the Company may direct and (b) in the case of prepayments made by
a Borrower of Multicurrency Loans, to prepay Multicurrency Loans made to such
Borrower in such order as the Company may direct, provided that all prepayments
on any Loans to a Borrower shall be applied pro rata to the Loans owing by such
Borrower.
2.6.6 All amounts prepaid may be reborrowed and successively
repaid and reborrowed, subject to the other terms and conditions in this
Agreement.
2.7. CONVERSION AND CONTINUATION OF OUTSTANDING ADVANCES.
2.7.1 ADVANCES. Floating Rate Advances shall continue as Floating
Rate Advances unless and until such Floating Rate Advances are converted into
Eurocurrency Advances. Each Eurocurrency Advance shall continue as a
Eurocurrency Advance until the end of the then applicable Interest Period
therefor, at which time such Eurocurrency Advance shall be automatically
converted into a Floating Rate Advance unless the Company shall have given the
Agent a Conversion/Continuation Notice requesting that, at the end of such
Interest Period, such Eurocurrency Advance either continue as a Eurocurrency
Advance for the same or another Interest Period or be converted into a Floating
Rate Advance. Subject to the terms hereof, the Company may elect from time to
time to convert all or any part of a Revolving Credit Advance of any Type to the
Company into any other Type or Types of Advance; provided that any conversion of
any Eurocurrency Advance shall be made on, and only on, the last day of the
Interest Period applicable thereto. The Company shall give the Agent irrevocable
notice (a "Conversion/ Continuation Notice") of each conversion of an Advance or
continuation of a Eurocurrency Advance not later than 10:00 a.m. (Detroit time)
at least one Business Day, in the case of a conversion into a Floating Rate
Advance, or three Business Days, in the case of a conversion into or
continuation of a Eurocurrency Advance, prior to the date of the requested
conversion or continuation, specifying:
(a) the requested date, which shall be a Business Day, of such
conversion or continuation,
(b) the aggregate amount and Type of the Revolving Credit Advance
which is to be converted or continued, and
(c) the amounts and Type(s) of Revolving Credit Advance(s) into
which such Advance is to be converted or continued and, in the case of a
conversion into or continuation of a Eurocurrency Advance, the duration of the
Interest Period applicable thereto.
2.7.2 MULTICURRENCY ADVANCES. Any Multicurrency Advances may be
continued as such upon the expiration of the then current Interest Period with
respect thereto by the relevant Borrower giving the Agent at least three
Business Days' prior irrevocable notice of such election and specifying the
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duration of the Interest Period applicable thereto, provided, that if the
relevant Borrower shall fail to give such notice, such Multicurrency Advance
shall be automatically continued for an Interest Period of one month provided
that such continuation would not extend the Interest Period beyond the Facility
Termination Date.
2.8 INTEREST RATES, INTEREST PAYMENT DATES; INTEREST AND FEE BASIS.
(a) Each Floating Rate Loan shall bear interest on the outstanding
principal amount thereof, for each day from and including the date such Loan is
made or is converted from a Eurocurrency Rate Loan into a Floating Rate Loan
pursuant to Section 2.7 to but excluding the date it becomes due or is converted
into a Eurocurrency Rate Loan pursuant to Section 2.7 hereof, at a rate per
annum equal to the Floating Rate for such day. Each Eurocurrency Loan shall bear
interest for each day during each Interest Period with respect thereto at a rate
per annum equal to the Eurocurrency Rate determined for such Interest Period.
Each Multicurrency Loan to any Foreign Subsidiary Borrower (other than a Swing
Loan) shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the applicable Eurocurrency Rate determined
for such Interest Period or at such other interest rate as agreed to by all
Lenders with a Commitment to such Foreign Subsidiary Borrower.
(b) Interest accrued on each Floating Rate Advance shall be payable
on each Payment Date, commencing with the first such date to occur after the
Effective Date and at maturity. Interest accrued on each Eurocurrency Rate
Advance shall be payable on the last day of its applicable Interest Period, on
any date on which the Eurocurrency Rate Advance is prepaid, whether by
acceleration or otherwise, and at maturity. Interest accrued on each
Eurocurrency Rate Advance having an Interest Period longer than three months
shall also be payable on the last day of each three-month interval during such
Interest Period.
(c) Interest shall be payable for the day an Advance is made but
not for the day of any payment on the amount paid if payment is received prior
to noon (local time) at the place of payment. If any payment of principal of or
interest on an Advance shall become due on a day which is not a Business Day,
except as otherwise provided in the definition of Interest Period, such payment
shall be made on the next succeeding Business Day and, in the case of a
principal payment, such extension of time shall be included in computing
interest in connection with such payment.
(d) All interest and fees shall be computed on the basis of the
actual number of days (including the first day but excluding the last day)
occurring during the period such interest or fee is payable over a year
comprised of 360 days, except for interest on Loans originating in Canada and
Loans denominated in British Pounds Sterling which shall be calculated for
actual days elapsed on the basis of a 365 day year or unless otherwise specified
herein.
(e) Changes in the rate of interest on that portion of any Advance
maintained as a Floating Rate Advance will take effect simultaneously with each
change in the Alternate Base Rate. Each Eurocurrency Rate Advance shall bear
interest on the outstanding principal amount thereof from and including the
first day of the Interest Period applicable thereto to (but not including) the
last day of such Interest Period at the interest rate determined as applicable
to such Eurocurrency Rate Advance. No Interest Period may end after the Facility
Termination Date.
2.9 RATES APPLICABLE AFTER DEFAULT. Notwithstanding anything to the
contrary contained in this Agreement, during the continuance of a Default or
Unmatured Default the Required Lenders may, at their option, by notice to the
Borrowers (which notice may be revoked at the option of the Required Lenders
notwithstanding any provision of Section 8.2 requiring unanimous consent of the
Lenders to changes in interest rates), declare that no Advance may be made as,
converted into or continued (after the
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expiration of the then current Interest Period) as a Eurocurrency Rate Advance,
provided that, notwithstanding the foregoing, any outstanding Eurocurrency
Advance may be continued for an Interest Period not to exceed one month after
such notice to the Borrowers by the Required Lenders. Upon and during the
continuance of any Default, the Required Lenders may, at their option, by notice
to the Company (which notice may be revoked at the option of the Required
Lenders notwithstanding any provision of Section 8.2 requiring unanimous consent
of the Lenders as to changes and interest rates) declare that (i) each
Eurocurrency Rate Advance shall bear interest for the remainder of the
applicable Interest Period at the rate otherwise applicable to such Interest
Period (with the Applicable Margin automatically adjusted to the highest amount
provided in the definition of "Applicable Margin", notwithstanding where the
Applicable Margin would otherwise be set) plus 2% per annum, and (ii) each
Floating Rate Advance and any other amount due under this Agreement shall bear
interest at a rate per annum equal to the Floating Rate otherwise applicable to
Floating Rate Loans (with the Applicable Margin automatically adjusted to the
highest amount provided in the definition of "Applicable Margin",
notwithstanding where the Applicable Margin would otherwise be set) plus 2% per
annum, provided that, upon and during the continuance of any acceleration for
any reason of any of the Obligations, the interest rate set forth in clauses (i)
and (ii) shall be applicable to all Advances without any election or action on
the part of the Agent or any Lender.
2.10 PRO RATA PAYMENT, METHOD OF PAYMENT.
2.10.1 Each borrowing of Loans by the Company from the Lenders
shall be made pro rata according to the Pro Rata Shares of such Lenders in
effect on the date of such borrowing. Each payment by the Company on account of
any facility fee shall be allocated by the Agent among the Lenders in accordance
with their respective Pro Rata Shares. Any reduction of the U.S. Commitments of
the U.S. Lenders shall be allocated by the Agent among the U.S. Lenders pro rata
according to the Pro Rata Shares of the U.S. Lenders with respect thereto.
Except as otherwise provided in this Agreement, each optional prepayment by the
Company on account of principal or interest on its Revolving Credit Loans shall
be allocated by the Agent pro rata according to the respective outstanding
principal amounts thereof. All payments (including prepayments) to be made by
the Company hereunder in respect of amounts denominated in Dollars, whether on
account of principal, interest, fees or otherwise, shall be made, without
setoff, deduction, or counterclaim, in immediately available funds to the Agent
at the Agent's address specified pursuant to Article XIV, or at any other
Lending Installation of the Agent specified in writing by the Agent to the
Company, by 12:00 P.M. (Detroit time) on the date when due. Each payment
delivered to the Agent for the account of any Lender shall be delivered promptly
by the Agent to such Lender in the same type of funds that the Agent received at
its address specified pursuant to Article XIV or at any Lending Installation
specified in a notice received by the Agent from such Lender. The Agent is
hereby authorized to charge the account of the Company maintained with NBD
(other than any payroll account) for each payment of principal, interest and
fees as it becomes due hereunder and the Agent shall provide prompt notice of
any such charge to the Company.
2.10.2 Each borrowing of Multicurrency Loans by any Foreign
Subsidiary Borrower in any Available Foreign Currency shall be allocated by the
Agent pro rata according to the Pro Rata Shares of the Multicurrency Lenders
with respect to such Borrower in effect on the date of such Loan. Each payment
by any Foreign Subsidiary Borrower on account of any facility fee shall be
allocated by the Agent among the Lenders to such Foreign Subsidiary Borrower in
accordance with their respective Pro Rata Shares. Any reduction of any of the
Canadian Commitments or U.K. Commitments shall be allocated by the Agent pro
rata according to the Pro Rata Shares of the Multicurrency Lenders with respect
thereto. Except as provided in Section 2.6, each payment (including each
prepayment) by a Foreign Subsidiary Borrower on account of principal of and
interest on Multicurrency Loans shall be allocated by the Agent pro rata
according to the respective principal amounts of the Multicurrency Loans then
due and owing by such Borrower to each Multicurrency Lender that made such
Multicurrency
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Loans. All payments (including prepayments) to be made by a Borrower on account
of Multicurrency Loans, whether on account of principal, interest, fees or
otherwise, shall be made without setoff, deduction, or counterclaim in the
currency of such Multicurrency Loan (in same day or other funds customarily used
in the settlement of obligations in such currency) to the Agent for the account
of the Multicurrency Lenders that made such Loans, at the payment office for
such Multicurrency Loans specified from time to time by the Agent by notice to
the Borrowers prior to 12:00 p.m. local time at such payment office on the due
date thereof. The Agent shall distribute such payment to the Multicurrency
Lenders entitled to receive the same promptly upon receipt in like funds as
received.
2.11 TELEPHONIC NOTICES. Each Borrower hereby authorizes the Lenders
and the Agent to extend, convert or continue Advances, effect selections of
Types of Advances and to transfer funds based on telephonic notices made by any
Person or Persons the Agent or any Lender reasonably and in good faith believes
to be an Authorized Officer. Each Borrower agrees to deliver promptly to the
Agent a written confirmation, if such confirmation is requested by the Agent or
any Lender, of each telephonic notice signed by an Authorized Officer. If the
written confirmation differs in any material respect from the action taken by
the Agent and the Lenders, the records of the Agent and the Lenders shall govern
absent manifest error.
2.12 NOTIFICATION OF ADVANCES, INTEREST RATES, PREPAYMENTS AND
COMMITMENT REDUCTIONS. Promptly after receipt thereof, the Agent will notify
each Lender of the contents of each Revolving Credit Commitment reduction
notice, Multicurrency Commitment reduction notice, Borrowing notice,
Conversion/Continuation Notice, and repayment notice received by it hereunder.
The Agent will notify each Lender of the interest rate applicable to each
Eurocurrency Rate Advance promptly upon determination of such interest rate and
will give each Lender prompt notice of each change in the Alternate Base Rate.
2.13 LENDING INSTALLATIONS. Each Lender may make and book its Loans at
any Lending Installation(s) selected by such Lender and may change its Lending
Installation(s) from time to time. All terms of this Agreement shall apply to
any such Lending Installation(s) and the Notes, if any, shall be deemed held by
each Lender for the benefit of such Lending Installation(s). Each Lender may, by
written or telex notice to the Agent and the applicable Borrower, designate one
or more Lending Installations which are to make and book Loans and for whose
account Loan payments are to be made.
2.14 NON-RECEIPT OF FUNDS BY THE AGENT. Unless a Borrower or a Lender,
as the case may be, notifies the Agent prior to the date on which it is
scheduled to make payment to the Agent of (a) in the case of a Lender, the
proceeds of a Loan or (b) in the case of a Borrower, a payment of principal,
interest or fees to the Agent for the account of the Lenders, that it does not
intend to make such payment, the Agent may assume that such payment has been
made. The Agent may, but shall not be obligated to, make the amount of such
payment available to the intended recipient in reliance upon such assumption. If
such Lender or Borrower, as the case may be, has not in fact made such payment
to the Agent, the recipient of such payment shall, on demand by the Agent, repay
to the Agent the amount so made available together with interest thereon in
respect of each day during the period commencing on the date such amount was so
made available by the Agent until the date the Agent recovers such amount at a
rate per annum equal to (i) in the case of payment by a Lender, the Federal
Funds Effective Rate for the first five days and the interest rate applicable to
the relevant Loan for each day thereafter or (ii) in the case of payment by a
Borrower, the interest rate applicable to the relevant Loan.
2.15 FACILITY LETTERS OF CREDIT.
2.15.1 OBLIGATION TO ISSUE. Subject to the terms and conditions of
this Agreement and in reliance upon the representations and warranties of the
Borrowers herein set forth, the Issuers hereby
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agree to issue for the account of a Borrower through such of the Issuer's
Lending Installations or Affiliates as the Issuer may determine, one or more
Facility Letters of Credit in accordance with this Section 2.15, from time to
time during the period, commencing on the Effective Date and ending five
Business Days prior to the Facility Termination Date.
2.15.2 CONDITIONS FOR ISSUANCE. In addition to being subject to the
satisfaction of the conditions contained in Sections 4.1 and 4.2, the obligation
of the Issuer to issue any Facility Letter of Credit is subject to the
satisfaction in full of the following conditions:
(a) the aggregate maximum amount then available for drawing
under Facility Letters of Credit issued by the Issuer, after giving effect to
the Facility Letter of Credit requested hereunder, shall not exceed any limit
imposed by law or regulation upon the Issuer;
(b) the requested Facility Letter of Credit has an expiration
date at least five Business Days prior to the Facility Termination Date;
(c) after giving effect to the Facility Letter of Credit
requested hereunder, the aggregate maximum amount then available for drawing
under Facility Letters of Credit issued by the Issuer shall not exceed
$5,000,000, and no prepayment would be required under this Agreement and no
provision of this Agreement would be breached;
(d) the applicable Borrower shall have delivered to the
Issuer at such times and in such manner as the Issuer may reasonably prescribe
such documents and materials as may be required pursuant to the terms of the
proposed Letter of Credit and the proposed Letter of Credit shall be reasonably
satisfactory to the Issuer as to form and content; and
(e) as of the date of issuance, no order, judgment or decree
of any Court, arbitrator or governmental authority shall purport by its terms to
enjoin or restrain the Issuer from issuing the Facility Letter of Credit and no
law, rule or regulation applicable to the Issuer and no request or directive
(whether or not having the force of law) from any governmental authority with
jurisdiction over the Issuer shall prohibit or request that the Issuer refrain
from the issuance of Letters of Credit generally or the issuance of that
Facility Letter of Credit.
2.15.3 PROCEDURE FOR ISSUANCE OF FACILITY LETTERS OF CREDIT.
(a) The applicable Borrower shall give the Issuer and the
Agent two Business Days' prior written notice of any requested issuance of a
Facility Letter of Credit under this Agreement (except that, in lieu of such
written notice, a Borrower may give the Issuer (i) notice of such request by
tested telex or other tested arrangement satisfactory to the Issuer or (ii)
telephonic notice of such request if confirmed in writing by delivery to the
Issuer (A) immediately (x) of a telecopy of the written notice required
hereunder which has been signed by an Authorized Officer of such Borrower or (y)
of a telex containing all information required to be contained in such written
notice and (B) promptly (but in no event later than the requested time of
issuance) of a copy of the written notice required hereunder containing the
original signature of an Authorized Officer of such Borrower); such notice shall
be irrevocable and shall specify the stated amount and Available Foreign
Currency or U.S. Dollars of the Facility Letter of Credit requested, (which
requested currency shall be limited to the currency in which such Borrower may
obtain Loans under this Agreement), the effective date (which day shall be a
Business Day) of issuance of such requested Facility Letter of Credit, the date
on which such requested Facility Letter of Credit is to expire (which date shall
be a Business Day and shall in no event be later than the fifth day prior to
Facility Termination Date), the purpose for which such Facility Letter of Credit
is to be issued, and the Person for whose benefit the requested Facility Letter
of Credit is to be issued. The Agent
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shall give notice to each applicable Lender of the issuance of each Facility
Letter of Credit reasonably promptly after such Facility Letter of Credit is
issued. At the time such request is made, the requesting Borrower shall also
provide the applicable Issuer with a copy of the form of the Facility Letter of
Credit it is requesting be issued. Such notice, to be effective, must be
received by the Issuer not later than 2:00 p.m. (local time) or the time agreed
upon by the Issuer and such Borrower on the last Business Day on which notice
can be given under this Section 2.15.3.
(b) Subject to the terms and conditions of this Section
2.15.3 and provided that the applicable conditions set forth in Sections 4.1 and
4.2 hereof have been satisfied, the Issuer shall, on the requested date, issue a
Facility Letter of Credit on behalf of the applicable Borrower in accordance
with the Issuer's usual and customary business practices.
(c) The Issuer shall not extend or amend any Facility Letter
of Credit unless the requirements of this Section 2.15 are met as though a new
Facility Letter of Credit was being requested and issued.
2.15.4 REIMBURSEMENT OBLIGATIONS.
(a) Each Borrower agrees to pay to the Issuer the amount of
all Reimbursement Obligations, interest and other amounts payable to the Issuer
under or in connection with any Facility Letter of Credit issued on behalf of
such Borrower immediately when due, irrespective of any claim, set-off, defense
or other right which any Borrower or any Subsidiary may have at any time against
the Issuer or any other Person, under all circumstances, including without
limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this
Agreement or any of the other Loan Documents;
(ii) the existence of any claim, setoff, defense or other
right which any Borrower or any Subsidiary may have at any time against a
beneficiary named in a Facility Letter of Credit or any transferee of any
Facility Letter of Credit (or any Person for whom any such transferee may be
acting), any Issuer, any Lender, or any other Person, whether in connection with
this Agreement, any Facility Letter of Credit, the transactions contemplated
herein or any unrelated transactions (including any underlying transactions
between any Borrower or any Subsidiary and the beneficiary named in any Facility
Letter of Credit);
(iii) any draft, certificate or any other document
presented under the Facility Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Unmatured Default.
(b) The Issuer shall promptly notify the applicable Borrower
of any draw under a Facility Letter of Credit. Such Borrower shall reimburse the
applicable Issuer for drawings under a Facility Letter of Credit issued by it on
behalf of such Borrower promptly after the payment by the Issuer. Any
Reimbursement Obligation with respect to any Facility Letter of Credit shall
bear interest from the date of the relevant drawings under the pertinent
Facility Letter of Credit at (i) in the case of such Obligations denominated in
U.S. Dollars, the interest rate for Floating Rate Loans or (ii) in the case
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of such Obligations denominated in an Available Foreign Currency, at the
correlative floating rate of interest customarily applicable to similar
extensions of credit to corporate borrowers denominated in such currency in the
country of issue of such currency, as determined by the Agent. In addition to
its other rights, the Issuers shall also have all rights for indemnification and
reimbursement as each Lender is entitled under this Agreement.
2.15.5 PARTICIPATION.
(a) Immediately upon issuance by the Issuer of any Facility
Letter of Credit in accordance with the procedures set forth in Section 2.15.3,
(i) with respect to each U.S. Facility Letter of Credit, each Lender shall be
deemed to have irrevocably and unconditionally purchased and received from the
Issuer, without recourse or warranty, an undivided interest and participation
equal to its Pro Rata Share of such U.S. Facility Letter of Credit (including,
without limitation, all obligations of the applicable Borrower with respect
thereto) and any security therefor or guaranty pertaining thereto and (ii) with
respect to each Multicurrency Facility Letter of Credit, each Multicurrency
Lender with respect to the Borrower for the account of which such Multicurrency
Facility Letter of Credit is issued shall be deemed to have irrevocably and
unconditionally purchased and received from the Issuer, without recourse or
warranty, an undivided interest and participation equal to its Pro Rata Share in
such Multicurrency Facility Letter of Credit (including, without limitation, all
obligations of the applicable Borrower with respect thereto), any security
therefor or guaranty pertaining thereto; provided, that a Letter of Credit
issued by the Issuer shall not be deemed to be a Facility Letter of Credit for
purposes of this Section 2.15.5 if the Issuer shall have received written notice
from any Lender on or before one Business Day prior to the date of its issuance
of such Letter of Credit that one or more of the conditions contained in
Sections 4.1 or 4.2 are not then satisfied, and, in the event the Issuer
receives such a notice, it shall have no further obligation to issue any Letter
of Credit until such notice is withdrawn by that Lender or such condition has
been effectively waived in accordance with the provisions of this Agreement.
(b) In the event that the Issuer makes any payment under any
Facility Letter of Credit and the applicable Borrower shall not have repaid such
amount to the Issuer pursuant to Section 2.15.4, the Issuer shall promptly
notify the Agent and each Lender participating in such Letter of Credit of such
failure, and each Lender participating in such Letter of Credit shall promptly
and unconditionally pay to the Agent for the account of the Issuer the amount of
such Lender's Pro Rata Share of the unreimbursed amount of any such payment in
such currency. If any Lender participating in such Facility Letter of Credit
fails to make available to the Issuer any amounts due to the Issuer pursuant to
this Section 2.15.5(b), the Issuer shall be entitled to recover such amount,
together with interest thereon (i) in the case of amounts denominated in U.S.
Dollars, at the Federal Funds Effective Rate, for the first three Business Days
after such Lender receives such notice and thereafter, at the Floating Rate, or
(ii) in the case of amounts denominated in an Available Foreign Currency, at a
local cost of funds rate for obligations in such currency as determined by the
Agent for the first three Business Days after such Lender receives such notice,
and thereafter at the floating rate of interest correlative to the Floating Rate
customarily applicable to similar extensions of credit to corporate borrowers
denominated in such currency in the country of issue of such currency, as
determined by the Agent, in either case payable (i) on demand, (ii) by setoff
against any payments made to the Issuer for the account of such Lender or (iii)
by payment to the Issuer by the Agent of amounts otherwise payable to such
Lender under this Agreement. The failure of any Lender to make available to the
Agent its Pro Rata Share of the unreimbursed amount of any such payment shall
not relieve any other Lender of its obligation hereunder to make available to
the Agent its Pro Rata Share of the unreimbursed amount of any payment on the
date such payment is to be made, but no Lender shall be responsible for the
failure of any other Lender to make available to the Agent its Pro Rata Share of
the unreimbursed amount of any payment on the date such payment is to be made.
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(c) Whenever the Issuer receives a payment on account of a
Reimbursement Obligation, including any interest thereon, it shall promptly pay
to each Lender which has funded its participating interest therein, in like
funds as received an amount equal to such Lender's Pro Rata Share thereof.
(d) The obligations of a Lender to make payments to the Agent
with respect to a Facility Letter of Credit shall be absolute, unconditional and
irrevocable, not subject to any counterclaim, set-off, qualification or
exception whatsoever and shall be made in accordance with the terms and
conditions of this Agreement under all circumstances.
(e) In the event any payment by a Borrower received by the
Agent with respect to a Facility Letter of Credit and distributed by the Agent
to the Lenders on account of their participations is thereafter set aside,
avoided or recovered from the Agent in connection with any receivership,
liquidation, reorganization or bankruptcy proceeding, each Lender which received
such distribution shall, upon demand by the Agent, contribute such Lender's Pro
Rata Share of the amount set aside, avoided or recovered together with interest
at the rate required to be paid by the Agent upon the amount required to be
repaid by it.
2.15.6 COMPENSATION FOR FACILITY LETTERS OF CREDIT. The Issuer
of a Facility Letter of Credit shall have the right to receive from the Borrower
which requested issuance of such Facility Letter of Credit, solely for the
account of the Issuer, a fronting fee in an amount equal to 0.125% per annum as
well as the Issuer's reasonable and customary costs of issuing and servicing the
Facility Letters of Credit. In addition, such Borrower shall pay to the Agent
for the account of each Lender participating in such Facility Letter of Credit a
non-refundable fee at a Applicable Facility LC Rate set forth in the Pricing
Schedule applied to the face amount of the Facility Letter of Credit, payable
quarterly in advance to all Lenders participating in such Facility Letter of
Credit (including the Issuer) ratably from the date such Facility Letter of
Credit is issued until its stated expiry date.
2.15.7 LETTER OF CREDIT COLLATERAL ACCOUNT. Each Borrower hereby
agrees that it will, until the final expiration date of any Facility Letter of
Credit and thereafter as long as any amount is payable to the Lenders in respect
of any Facility Letter of Credit, maintain a special collateral account (the
"Letter of Credit Collateral Account") at the Agent's office at the address
specified pursuant to Article XIV, in the name of such Borrower but under the
sole dominion and control of the Agent, for the benefit of the Lenders and in
which such Borrower shall have no interest other than as set forth in Section
8.1. The Agent will invest any funds on deposit from time to time in the Letter
of Credit Collateral Account in certificates of deposit of the Agent having a
maturity not exceeding 30 days. Nothing in this Section 2.15.7 shall either
obligate the Agent to require any Borrower to deposit any funds in the Letter of
Credit Collateral Account or limit the right of the Agent to release any funds
held in the Letter of Credit Collateral Account other than as required by
Section 8.1, and the Borrower's obligations to deposit funds in the Letter of
Credit Collateral Account are limited to the circumstances required by Section
8.1 after the occurrence of a Default and during the continuance thereof.
2.15.8 NATURE OF OBLIGATIONS.
(a) As among the Borrowers, the Issuer and the Lenders, each
Borrower assumes all risks of the acts and omissions of, or misuse of the
Facility Letters of Credit by, the respective beneficiaries of the Facility
Letters of Credit requested by it. In furtherance and not in limitation of the
foregoing, the Issuers and the Lenders shall not be responsible for (i) the
form, validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the application for and
issuance of any Facility Letter of Credit, even if it should in fact prove to be
in any or all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any
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instrument transferring or assigning or purporting to transfer or assign a
Facility Letter of Credit or the rights or benefits thereunder or proceeds
thereof, in whole or in part, which may prove to be invalid or ineffective for
any reason; (iii) failure of the beneficiary of a Facility Letter of Credit to
comply fully with conditions required in order to draw upon such Facility Letter
of Credit; (iv) errors, omissions, interruptions or delays in transmission or
delivery of any messages, by mail, cable, telegraph, telex or otherwise; (v)
errors in interpretation of technical terms; (vi) misapplication by the
beneficiary of a Facility Letter of Credit of the proceeds of any drawing under
such Facility Letter of Credit; or (vii) any consequences arising from causes
beyond the control of the Issuers or the Lenders. In addition to amounts payable
as elsewhere provided in this Section 2.15, such Borrower hereby agrees to
protect, indemnify, pay and save the Agent, each Issuer and each Lender harmless
from and against any and all claims, demands, liabilities, damages, losses,
costs, charges and expenses (including reasonable attorneys' fees) arising from
the claims of third parties against the Agent or the Issuer in respect of any
Facility Letter of Credit requested by such Borrower.
(b) In furtherance and extension and not in limitation of the
specific provisions hereinabove set forth, any action taken or omitted by the
Issuers or any Lender under or in connection with the Facility Letters of Credit
or any related certificates, if taken or omitted in good faith, shall not put
the Issuer or such Lender under any resulting liability to any Borrower or
relieve any Borrower of any of its obligations hereunder to the Issuers, the
Agent or any Lender.
(c) Notwithstanding anything to the contrary contained in
this Section 2.15.8, a Borrower shall not have any obligation to indemnify the
Agent the Issuer and each Lender under this Section 2.15 in respect of any
liability incurred by each arising primarily out of the willful misconduct or
gross negligence of the Issuer, as determined by a court of competent
jurisdiction, or out of the wrongful dishonor by the Issuer of a proper demand
for payment made under the Facility Letters of Credit issued by the Issuer as
determined by a court of competent jurisdiction, unless such dishonor was made
at the request of such Borrower in writing, or out of the wrongful honor by the
Issuer of a demand for payment made under the Facility Letters of Credit issued
by the Issuer which demand for payment does not comply with the conditions
required in order to draw upon such Facility Letter of Credit as determined by a
court of competent jurisdiction, unless such dishonor was made at the request of
such Borrower in writing.
2.16. SWING LOANS.
(a) MAKING OF SWING LOANS. The Agent may elect in its sole
discretion to make revolving loans (the "Swing Loans") to any Borrower solely
for the Agent's own account, from time to time prior to the Facility Termination
Date up to an aggregate principal amount at any one time outstanding not to
exceed the lesser of $5,000,000 or the unused amount of the Aggregate
Commitments. The Agent may make Swing Loans (subject to the conditions precedent
set forth in Article IV), provided that the Agent has received a request in
writing or via telephone from an Authorized Officer of such Borrower for funding
of a Swing Loan no later than such time required by the Agent, on the Business
Day on which such Swing Loan is requested to be made. The Agent shall not make
any Swing Loan in the period commencing one Business Day after the Agent becomes
aware that one or more of the conditions precedent contained in Section 4.2 are
not satisfied and ending upon the satisfaction or waiver of such condition(s).
Each outstanding Swing Loan shall be payable on the Business Day following
demand therefor, with interest at the rate agreed to between the Agent and such
Borrower accrued thereon and shall otherwise be subject to all the terms and
conditions applicable to Loans, except that all interest thereon shall be
payable to the Agent solely for its own account.
(b) SWING LOAN BORROWING REQUESTS. Each Borrower agrees to
deliver promptly to the Agent a written confirmation of each telephonic notice
for Swing Loans signed by an Authorized
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Officer. If the written confirmation differs in any material respect from the
action taken by the Agent, the records of the Agent shall govern, absent
manifest error.
(c) REPAYMENT OF SWING LOANS. At any time after making a Swing
Loan, the Agent may request such Borrower to, and upon request by the Agent such
Borrower shall, promptly request an Advance from all Lenders to such Borrower
and apply the proceeds of such Advance to the repayment of any Swing Loan owing
by such Borrower not later than the Business Day following the Agent's request.
Notwithstanding the foregoing, upon the earlier to occur of (a) three Business
Days after demand is made by the Agent, and (b) the Facility Termination Date,
each Lender to such Borrower (other than the Agent) shall irrevocably and
unconditionally purchase from the Agent, without recourse or warranty, an
undivided interest and participation in such Swing Loan in an amount equal to
such Lender's Pro Rata Share of such Swing Loan and promptly pay such amount to
the Agent in immediately available funds (or, in the case of participations in
Swing Loans denominated in an Available Foreign Currency, same day funds). Such
payment shall be made by the other Lenders whether or not a Default is then
continuing or any other condition precedent set forth in Section 4.2 is then met
and whether or not such Borrower has then requested an Advance in such amount.
If any Lender fails to make available to the Agent, any amounts due to the Agent
from such Lender pursuant to this Section, the Agent shall be entitled to
recover such amount, together with interest thereon at the Federal Funds
Effective Rate or such other local cost of funds rate determined by the Agent
with respect to any Swing Loan denominated in any Available Foreign Currency for
the first three Business Days after such Lender receives notice of such required
purchase and thereafter, at the rate applicable to such Loan, payable (i) on
demand, (ii) by setoff against any payments made to the Agent for the account of
such Lender or (iii) by payment to the Agent by the Agent of amounts otherwise
payable to such Lender under this Agreement. The failure of any Lender to make
available to the Agent its Pro Rata Share of any unpaid Swing Loan shall not
relieve any other Lender of its obligation hereunder to make available to the
Agent its Pro Rata Share of any unpaid Swing Loan on the date such payment is to
be made, but no Lender shall be responsible for the failure of any other Lender
to make available to the Agent its Pro Rata Share of any unpaid Swing Loan.
2.17 APPLICATION OF PAYMENTS WITH RESPECT TO DEFAULTING LENDERS. No
payments of principal, interest or fees delivered to the Agent for the account
of any Defaulting Lender shall be delivered by the Agent to such Defaulting
Lender. Instead, such payments shall, for so long as such Defaulting Lender
shall be a Defaulting Lender, be held by the Agent, and the Agent is hereby
authorized and directed by all parties hereto to hold such funds in escrow and
apply such funds as follows:
(i) First, if applicable to any payments due to the Issuer
pursuant to Section 2.15.5 or the Agent under Section 2.16; and
(ii) Second, to Loans required to be made by such Defaulting
Lender on any Borrowing Date to the extent such Defaulting Lender fails to make
such Loans.
Notwithstanding the foregoing, upon the termination of the Commitments
and the payment and performance of all of the Obligations (other than those
owing to a Defaulting Lender), any funds then held in escrow by the Agent
pursuant to the preceding sentence shall be distributed to each Defaulting
Lender, pro rata in proportion to amounts that would be due to each Defaulting
Lender but for the fact that it is a Defaulting Lender.
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ARTICLE III.
YIELD PROTECTION; TAXES
-----------------------
3.1 YIELD PROTECTION.
(a) If, on or after the date of this Agreement, the adoption of any
law or any governmental or quasi-governmental rule, regulation, policy,
guideline or directive (whether or not having the force of law), or any change
in the interpretation or administration thereof by any governmental or
quasi-governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender or
applicable Lending Installation or the LC Issuer with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency:
(i) subjects any Lender or any applicable Lending
Installation or the LC Issuer to any Taxes, or changes
the basis of taxation of payments (other than with
respect to Excluded Taxes) to any Lender or the LC
Issuer in respect of its Eurocurrency Loans, Facility
LCs or participations therein, or
(ii) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar
requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender or any
applicable Lending Installation or the LC Issuer (other
than reserves and assessments taken into account in
determining the interest rate applicable to Eurocurrency
Advances), or
(iii) imposes any other condition the result of which is to
increase the cost to any Lender or any applicable
Lending Installation or the LC Issuer of making, funding
or maintaining its Eurocurrency Loans (including without
limitation, any conversion of any Loan denominated in an
Agreed Currency other than Euro into a Loan denominated
in Euro), or of issuing or participating in Facility
LCs, or reduces any amount receivable by any Lender or
any applicable Lending Installation or the LC issuer in
connection with its Eurocurrency Loans, Facility LCs or
participations therein, or requires any Lender or any
applicable Lending Installation or the LC Issuer to make
any payment calculated by reference to the amount of
Eurocurrency Loans, Facility LCs or participations
therein held or interest or LC Fees received by it, by
an amount deemed material by such Lender or the LC
Issuer as the case may be,
and the result of any of the foregoing is to increase the cost to such Lender or
applicable Lending Installation or the LC Issuer, as the case may be, of making
or maintaining its Eurocurrency Loans (including without limitation, any
conversion of any Loan denominated in an Agreed Currency other than Euro into a
Loan denominated in Euro), or Commitment or of issuing or participating in
Facility LCs or to reduce the return received by such Lender or applicable
Lending Installation or the LC Issuer, as the case may be, in connection with
such Eurocurrency Loans, Commitment, Facility LCs or participations therein,
then, within 15 days of demand by such Lender or the LC Issuer, as the case may
be, the Borrowers shall pay such Lender such additional amount or amounts as
will compensate such Lender or the LC Issuer, as the case may be, for such
increased cost or reduction in amount received.
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(b) NON-U.S. RESERVE COSTS OR FEES WITH RESPECT TO LOANS TO
NON-U.S. BORROWERS. If any law or any governmental or quasi-governmental rule,
regulation, policy, guideline or directive of any jurisdiction outside of the
United States of America or any subdivision thereof (whether or not having the
force of law), imposes or deems applicable any reserve requirement against or
fee with respect to assets of, deposits with or for the account of, or credit
extended by, any Lender or any applicable Lending Installation, or the LC
Issuer, and the result of the foregoing is to increase the cost to such Lender
or applicable Lending Installation, or the LC Issuer, of making or maintaining
its Eurocurrency Loans to, or of issuing or participating in Facility LCs upon
the request of, or of making and maintaining its Commitment to, any Borrower
that is not incorporated under the laws of the United States of America or a
state thereof (each a "Non-U.S. Borrower") or its Commitment to any Non-U.S.
Borrower or to reduce the return received by such Lender or applicable Lending
Installation or the LC Issuer in connection with such Eurocurrency Loans to,
Facility LCs applied for by, or Commitment to any Non-U.S. Borrower or
Commitment to any Non-U.S. Borrower, then, within 15 days of demand by such
Lender, or the LC Issuer, as the case may be, such Non-U.S. Borrower shall pay
such Lender or the LC Issuer, as the case may be, such additional amount or
amounts as will compensate such Lender for such increased cost or reduction in
amount received, provided that such Non-U.S. Borrower shall not be required to
compensate any Lender for such non-U.S. reserve costs or fees to the extent that
an amount equal to such reserve costs or fees is received by such Lender as a
result of the calculation of the interest rate applicable to Eurocurrency
Advances pursuant to clause (i)(b) of the definition of "Eurocurrency Rate."
3.2 CHANGES IN CAPITAL ADEQUACY REGULATIONS. If a Lender or the LC
Issuer determines the amount of capital required or expected to be maintained by
such Lender or the LC Issuer, any Lending Installation of such Lender or the LC
Issuer or any corporation controlling such Lender or the LC Issuer is increased
as a result of a Change, then, within 15 days of demand by such Lender or the LC
Issuer, the Borrower shall pay such Lender or the LC Issuer the amount necessary
to compensate for any shortfall in the rate of return on the portion of such
increased capital which such Lender or the LC Issuer determines is attributable
to this Agreement, its Outstanding Credit Exposure or its Commitment to make
Loans and issue or participate in Facility LCs, as the case may be, hereunder
(after taking into account such Lender's or the LC Issuer's policies as to
capital adequacy). "Change" means (i) any change after the date of this
Agreement in the Risk-Based Capital Guidelines, or (ii) any adoption of or
change in any other law, governmental or quasi-governmental rule, regulation,
policy, guideline, interpretation, or directive (whether or not having the force
of law) after the date of this Agreement which affects the amount of capital
required or expected to be maintained by any Lender or the LC Issuer or any
Lending Installation or any corporation controlling any Lender or the LC Issuer.
"Risk-Based Capital Guidelines" means (i) the risk-based capital guidelines in
effect in the United States on the date of this Agreement, including transition
rules, and (ii) the corresponding capital regulations promulgated by regulatory
authorities outside the United States implementing the July 1988 report of the
Basle Committee on Banking Regulation and Supervisory Practices Entitled
"International Convergence of Capital Measurements and Capital Standards,"
including transition rules, and any amendments to such regulations adopted prior
to the date of this Agreement.
3.3 AVAILABILITY OF TYPES OF ADVANCES. If any Lender determines that
maintenance of its Eurocurrency Loans at a suitable Lending Installation would
violate any applicable law, rule, regulation, or directive, whether or not
having the force of law, or if the Required Lenders determine that (i) deposits
of a type, currency and maturity appropriate to match fund Eurocurrency Advances
are not available or (ii) the interest rate applicable to Eurocurrency Advances
does not accurately reflect the cost of making or maintaining Eurocurrency
Advances, then the Agent shall suspend the availability of Eurocurrency Advances
and require any affected Eurocurrency Advances to be repaid or converted to
Floating Rate Advances, subject to the payment of any funding indemnification
amounts required by Section 3.4.
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3.4 FUNDING INDEMNIFICATION. If any payment of a Eurocurrency Advance
occurs on a date which is not the last day of the applicable Interest Period,
whether because of acceleration, prepayment or otherwise, or a Eurocurrency
Advance is not made on the date specified by a Borrower for any reason other
than default by the Lenders, the Borrower will indemnify each Lender for any
loss or cost incurred by it resulting therefrom, including, without limitation,
any loss or cost in liquidating or employing deposits acquired to fund or
maintain such Eurocurrency Advance.
3.5 TAXES.
(i) All payments by any Borrower to or for the account of any
Lender, the LC Issuer or the Agent hereunder or under any Note or Facility LC
Application shall be made free and clear of and without deduction for any and
all Taxes. If any Borrower shall be required by law to deduct any Taxes from or
in respect of any sum payable hereunder to any Lender, the LC Issuer or the
Agent, (a) the sum payable shall be increased as necessary so that after making
all required deductions (including deductions applicable to additional sums
payable under this Section 3.5) such Lender, the LC Issuer or the Agent (as the
case may be) receives an amount equal to the sum it would have received had no
such deductions been made, (b) such Borrower shall make such deductions, (c)
such Borrower shall pay the full amount deducted to the relevant authority in
accordance with applicable law and (d) such Borrower shall furnish to the Agent
the original copy of a receipt evidencing payment thereof within 30 days after
such payment is made.
(ii) In addition, each Borrower hereby agrees to pay any present or
future stamp or documentary taxes and any other excise or property taxes,
charges or similar levies which arise from any payment made hereunder or under
any Note or Facility LC Application or from the execution or delivery of, or
otherwise with respect to, this Agreement or any Note or Facility LC Application
("Other Taxes").
(iii) Each Borrower hereby agrees to indemnify the Agent, the LC
Issuer and each Lender for the full amount of Taxes or Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed on amounts payable under
this Section 3.5) paid by the Agent, the LC Issuer or such Lender and any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto. Payments due under this indemnification shall be made within 30
days of the date the Agent, the LC Issuer or such Lender makes demand therefor
pursuant to Section 3.6.
(iv) Each Lender that is not incorporated under the laws of the
United States of America or a state thereof (each a "Non-U.S. Lender") agrees
that it will, not less than ten Business Days after the date of this Agreement,
(i) deliver to each of the Company and the Agent two duly completed copies of
United States Internal Revenue Service Form 1001 or 4224, certifying in either
case that such Lender is entitled to receive payments under this Agreement
without deduction or withholding of any United States federal income taxes, and
(ii) deliver to each of the Company and the Agent a United States Internal
Revenue Form W-8 or W-9, as the case may be, and certify that it is entitled to
an exemption from United States backup withholding tax. Each Non-U.S. Lender
further undertakes to deliver to each of the Company and the Agent (x) renewals
or additional copies of such form (or any successor form) on or before the date
that such form expires or becomes obsolete, and (y) after the occurrence of any
event requiring a change in the most recent forms so delivered by it, such
additional forms or amendments thereto as may be reasonably requested by the
Company or the Agent. All forms or amendments described in the preceding
sentence shall certify that such Lender is entitled to receive payments under
this Agreement without deduction or withholding of any United States federal
income taxes, unless an event (including without limitation any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Lender from duly completing and delivering any such
form or amendment
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with respect to it and such Lender advises the Company and the Agent that it is
not capable of receiving payments without any deduction or withholding of United
States federal income tax.
(v) For any period during which a Non-U.S. Lender has failed to
provide the Company with an appropriate form pursuant to clause (iv), above
(unless such failure is due to a change in treaty, law or regulation, or any
change in the interpretation or administration thereof by any governmental
authority, occurring subsequent to the date on which a form originally was
required to be provided), such Non-U.S. Lender shall not be entitled to
indemnification under this Section 3.5 with respect to Taxes imposed by the
United States; provided that, should a Non-U.S. Lender which is otherwise exempt
from or subject to a reduced rate of withholding tax become subject to Taxes
because of its failure to deliver a form required under clause (iv), above, the
Company shall take such steps as such Non-U.S. Lender shall reasonably request
to assist such Non-U.S. Lender to recover such Taxes.
(vi) Any Lender that is entitled to an exemption from or reduction
of withholding tax with respect to payments under this Agreement or any Note
pursuant to the law of any relevant jurisdiction or any treaty shall deliver to
the Company (with a copy to the Agent), at the time or times prescribed by
applicable law, such properly completed and executed documentation prescribed by
applicable law as will permit such payments to be made without withholding or at
a reduced rate.
(vii) If the U.S. Internal Revenue Service or any other
governmental authority of the United States or any other country or any
political subdivision thereof asserts a claim that the Agent did not properly
withhold tax from amounts paid to or for the account of any Lender (because the
appropriate form was not delivered or properly completed, because such Lender
failed to notify the Agent of a change in circumstances which rendered its
exemption from withholding ineffective, or for any other reason), such Lender
shall indemnify the Agent fully for all amounts paid, directly or indirectly, by
the Agent as tax, withholding therefor, or otherwise, including penalties and
interest, and including taxes imposed by any jurisdiction on amounts payable to
the Agent under this subsection, together with all costs and expenses related
thereto (including reasonable attorneys fees and time charges of attorneys for
the Agent, which attorneys may be employees of the Agent). The obligations of
the Lenders under this Section 3.5(vii) shall survive the payment of the
Obligations and termination of this Agreement.
3.6 LENDER STATEMENTS; SURVIVAL OF INDEMNITY. To the extent reasonably
possible, each Lender shall designate an alternate Lending Installation with
respect to its Eurocurrency Loans to reduce any liability of a Borrower to such
Lender under Sections 3.1, 3.2 and 3.5 or to avoid the unavailability of
Eurocurrency Advances under Section 3.3, so long as such designation is not, in
the judgment of such Lender, disadvantageous to such Lender. Each Lender shall
deliver a written statement of such Lender to the affected Borrower (with a copy
to the Agent) as to the amount due, if any, under Section 3.1, 3.2, 3.4 or 3.5.
Such written statement shall set forth in reasonable detail the calculations
upon which such Lender determined such amount and shall be final, conclusive and
binding on such Borrower in the absence of manifest error. Determination of
amounts payable under such Sections in connection with a Eurocurrency Loan shall
be calculated as though each Lender funded its Eurocurrency Loan through the
purchase of a deposit of the type, currency and maturity corresponding to the
deposit used as a reference in determining the Eurocurrency Rate applicable to
such Loan, whether in fact that is the case or not. Unless otherwise provided
herein, the amount specified in the written statement of any Lender shall be
payable on demand after receipt by such Borrower of such written statement. The
obligations of the Borrowers under Sections 3.1, 3.2, 3.4 and 3.5 shall survive
payment of the Obligations and termination of this Agreement.
3.7 NO DUPLICATION. To the extent more than one section of this Article
III were to apply, Borrowers shall have no obligation to make duplicate payments
(e.g. payments in excess of actual out-of-pocket expenses or allocated costs or
charges to any Lender).
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ARTICLE IV.
CONDITIONS PRECEDENT
--------------------
4.1 INITIAL CREDIT EXTENSION. The Lenders shall not be required to make
the initial Credit Extension hereunder unless the Borrowers have furnished to
the Agent with sufficient copies for the Lenders:
(i) Copies of the articles or certificate of incorporation of
each Borrower, together with all amendments, and a
certificate of good standing, each certified by the
appropriate governmental officer in its jurisdiction of
incorporation
(ii) Copies, certified by the Secretary or Assistant Secretary of
each Borrower, of its by-laws and of its Board of Directors'
resolutions and of resolutions or actions of any other body
authorizing the execution of the Loan Documents to which
such Borrower is a party
(iii) An incumbency certificate, executed by the Secretary or
Assistant Secretary of each Borrower, which shall identify
by name and title and bear the signatures of the Authorized
Officers and any other officers of such Borrower authorized
to sign the Loan Documents to which such Borrower is a
party, upon which certificate the Agent and the Lenders
shall be entitled to rely until informed of any change in
writing by such Borrower.
(iv) A certificate, signed by the chief financial officer of each
Borrower, stating that on the initial Credit Extension Date
no Default or Unmatured Default has occurred and is
continuing.
(v) A written opinion or opinions of the Borrowers' counsel,
addressed to the Lenders in substantially the form of
Exhibit C.
(vi) Any Notes requested by a Lender payable to the order of each
such requesting Lender.
(vii) Written money transfer instructions, in substantially the
form of Exhibit D, addressed to the Agent and signed by an
Authorized Officer, together with such other related money
transfer authorizations as the Agent may have reasonably
requested.
(viii) If the initial Credit Extension will be the issuance of a
Facility LC, a properly completed Facility LC Application.
(ix) The Agent shall have received complete executed copies of
the documents relating to the Senior Note Agreement of the
Company and the Agent shall be satisfied with the covenants
set forth therein.
(x) Such other documents as any Lender or its counsel may have
reasonably requested.
4.2 EACH CREDIT EXTENSION. The Lenders shall not be required to make
any Credit Extension unless on the applicable Credit Extension Date:
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(i) There exists no Default or Unmatured Default.
(ii) The representations and warranties contained in
Article V are true and correct as of such Credit
Extension Date except to the extent any such
representation or warranty is stated to relate solely
to an earlier date, in which case such representation
or warranty shall have been true and correct on and as
of such earlier date.
(iii) All legal matters incident to the making of such
Credit Extension shall be satisfactory to the Lenders
and their counsel.
Each Borrowing notice or request for issuance of a Facility LC with
respect to each such Credit Extension shall constitute a representation and
warranty by each Borrower that the conditions contained in Sections 4.2(i) and
(ii) have been satisfied.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
------------------------------
Each of the Company and the Foreign Subsidiary Borrowers (insofar as
the representations and warranties set forth below relate to such Foreign
Subsidiary Borrower) represents and warrants to the Lenders that:
5.1 EXISTENCE AND STANDING. Each of the Company and its Subsidiaries is
a corporation, partnership (in the case of Subsidiaries only) or limited
liability company duly and properly incorporated or organized, as the case may
be, validly existing and (to the extent such concept applies to such entity) in
good standing under the laws of its jurisdiction of incorporation or
organization and has all requisite authority to conduct its business in each
jurisdiction in which its business is conducted.
5.2 AUTHORIZATION AND VALIDITY. Each Borrower has the power and
authority and legal right to execute and deliver the Loan Documents to which it
is a party and to perform its obligations thereunder. The execution and delivery
by each Borrower of the Loan Documents to which it is a party and the
performance of its obligations thereunder have been duly authorized by proper
corporate proceedings, and the Loan Documents to which they are a party
constitute legal, valid and binding obligations of the Borrowers enforceable
against the Borrowers in accordance with their terms, except as enforceability
may be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally.
5.3 NO CONFLICT; GOVERNMENT CONSENT. Neither the execution and delivery
by the Borrowers of the Loan Documents, nor the consummation of the transactions
therein contemplated, nor compliance with the provisions thereof will violate
(i) any law, rule, regulation, order, writ, judgment, injunction, decree or
award binding on the Company or any of its Subsidiaries, except where violation
cannot reasonably be expected to have a Material Adverse Effect, or (ii) the
Company's or any Subsidiary's articles or certificate of incorporation,
partnership agreement, certificate of partnership, articles or certificate of
organization, by-laws, or operating or other management agreement, as the case
may be, or (iii) the provisions of any indenture, instrument or agreement to
which the Company or any of its Subsidiaries is a party or is subject, or by
which it, or its Property, is bound, or conflict with or constitute a default
thereunder, or result in, or require, the creation or imposition of any Lien in,
of or on the Property of the Company or a Subsidiary pursuant to the terms of
any such indenture, instrument or agreement, except where violation cannot
reasonably be expected to have a Material Adverse Effect. No
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order, consent, adjudication, approval, license, authorization, or validation
of, or filing, recording or registration with, or exemption by, or other action
in respect of any governmental or public body or authority, or any subdivision
thereof, which has not been obtained by the Company or any of its Subsidiaries,
is required to be obtained by the Company or any of its Subsidiaries in
connection with the execution and delivery of the Loan Documents, the borrowings
under this Agreement, the payment and performance by each Borrower of the
Obligations or the legality, validity, binding effect or enforceability of any
of the Loan Documents, except where the failure to take any such action cannot
reasonably be expected to have a Material Adverse Effect.
5.4 FINANCIAL STATEMENTS. The March 31, 1998 year-end financial
statements of the Company and its Subsidiaries and the December 31, 1998 interim
financial statements of the Company and its Subsidiaries heretofore delivered to
the Lenders were prepared in accordance with generally accepted accounting
principles in effect on the date such statements were prepared and fairly
present the consolidated financial condition and operations of the Company and
its Subsidiaries at such dates and the consolidated results of their operations
for the periods then ended.
5.5 MATERIAL ADVERSE CHANGE. Since March 31, 1998 there has been no
change in the business, Property, prospects, condition (financial or otherwise)
or results of operations of the Company and its Subsidiaries which could
reasonably be expected to have a Material Adverse Effect.
5.6 TAXES. The Company and its Subsidiaries have filed all United
States federal tax returns and all other tax returns which are required to be
filed and have paid all taxes due pursuant to said returns or pursuant to any
assessment received by the Company or any of its Subsidiaries, except such
taxes, if any, the failure of which to file or pay would not reasonably be
expectd to have a Material Adverse Effect or are being contested in good faith
and as to which adequate reserves have been provided in accordance with
Agreement Accounting Principles and as to which no Lien exists. No tax liens
have been filed and no claims are being asserted with respect to any such taxes.
5.7 LITIGATION AND CONTINGENT OBLIGATIONS. Except as set forth on
Schedule 5.7 hereto, there is no litigation, arbitration, governmental
investigation, proceeding or inquiry pending or, to the knowledge of any of
their officers, threatened against or affecting the Company or any of its
Subsidiaries which could reasonably be expected to have a Material Adverse
Effect or which seeks to prevent, enjoin or delay the making of any Credit
Extensions. Other than any liability incident to any litigation, arbitration or
proceeding which is set forth on Schedule 5.7, the Company and its Subsidiaries
have no material contingent obligations not provided for or disclosed in the
financial statements referred to in Section 5.4.
5.8 SUBSIDIARIES. Schedule 5.8 contains an accurate list of all
Subsidiaries of the Company as of the date of this Agreement, setting forth
their respective jurisdictions of organization and the percentage of their
respective capital stock or other ownership interests owned by the Company or
other Subsidiaries. All of the issued and outstanding shares of capital stock or
other ownership interests of such Subsidiaries have been (to the extent such
concepts are relevant with respect to such ownership interests) duly authorized
and issued and are fully paid and non-assessable.
5.9 ERISA. The Unfunded Liabilities of all Single Employer Plans do not
in the aggregate exceed $1,000,000. Each Plan complies in all material respects
with all applicable requirements of law and regulations, no Reportable Event has
occurred with respect to any Plan, neither the Company nor any other member of
the Controlled Group has withdrawn from any Plan or initiated steps to do so,
and no steps have been taken to reorganize or terminate any Plan.
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5.10 ACCURACY OF INFORMATION. No information, exhibit or report
furnished by the Company or any of its Subsidiaries to the Agent or to any
Lender in connection with the negotiation of, or compliance with, the Loan
Documents contained any material misstatement of fact or omitted to state a
material fact or any fact necessary to make the statements contained therein not
misleading.
5.11 REGULATION U. Margin stock (as defined in Regulation U)
constitutes less than 25% of the value of those assets of the Company and its
Subsidiaries which are subject to any limitation on sale, pledge, or other
restriction hereunder.
5.12 MATERIAL AGREEMENTS. Neither the Company nor any Subsidiary is a
party to any agreement or instrument or subject to any charter or other
corporate restriction which could reasonably be expected to have a Material
Adverse Effect. Neither the Company nor any Subsidiary is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in (i) any agreement to which it is a party, which default
could reasonably be expected to have a Material Adverse Effect or (ii) any
agreement or instrument evidencing or governing Indebtedness, which default
could reasonably be expected to have a Material Adverse Effect.
5.13 COMPLIANCE WITH LAWS. The Company and its Subsidiaries have
complied with all applicable statutes, rules, regulations, orders and
restrictions of any domestic or foreign government or any instrumentality or
agency thereof having jurisdiction over the conduct of their respective
businesses or the ownership of their respective Property except for any failure
to comply with any of the foregoing which could not reasonably be expected to
have a Material Adverse Effect.
5.14 OWNERSHIP OF PROPERTIES. On the date of this Agreement, the
Borrower and its Subsidiaries will have good title, free of all Liens other than
those permitted by Section 6.15, to all of the Property and assets reflected in
the Company's most recent consolidated financial statements provided to the
Agent as owned by the Company and its Subsidiaries.
5.15 PLAN ASSETS; PROHIBITED TRANSACTIONS. The Company is not an entity
deemed to hold "plan assets" within the meaning of 29 C.F.R. Section 2510.3-101
of an employee benefit plan (as defined in Section 3(3) of ERISA) which is
subject to Title I of ERISA or any plan (within the meaning of Section 4975 of
the Code), and neither the execution of this Agreement nor the making of Credit
Extensions hereunder gives rise to a prohibited transaction within the meaning
of Section 406 of ERISA or Section 4975 of the Code.
5.16 ENVIRONMENTAL MATTERS. In the ordinary course of its business, the
officers of the Company consider the effect of Environmental Laws on the
business of the Company and its Subsidiaries, in the course of which they
identify and evaluate potential risks and liabilities accruing to the Company
due to Environmental Laws. On the basis of this consideration, the Company has
concluded that Environmental Laws cannot reasonably be expected to have a
Material Adverse Effect. Neither the Company nor any Subsidiary has received any
notice to the effect that its operations are not in material compliance with any
of the requirements of applicable Environmental Laws or are the subject of any
federal or state investigation evaluating whether any remedial action is needed
to respond to a release of any toxic or hazardous waste or substance into the
environment, which non-compliance or remedial action could reasonably be
expected to have a Material Adverse Effect.
5.17 INVESTMENT COMPANY ACT. Neither the Company nor any Subsidiary is
an "investment company" or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended.
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5.18 PUBLIC UTILITY HOLDING COMPANY ACT. Neither the Company nor any
Subsidiary is a "holding company" or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
5.19 YEAR 2000. Each Borrower has made or will make a full and complete
assessment of the Year 2000 Issues and has a realistic and achievable program
for remediating the Year 2000 Issues on a timely basis (the "Year 2000
Program"). Based on such assessment and on the Year 2000 Program the Borrowers
do not reasonably anticipate that Year 2000 Issues will have a Material Adverse
Effect.
5.20 FOREIGN SUBSIDIARY BORROWERS.
(a) Except as described on Schedule 5.8, each Foreign Subsidiary
Borrower is a direct or indirect Wholly-Owned Subsidiary of the Company
(excluding director qualifying shares); and
(b) Each Foreign Subsidiary Borrower will have, upon becoming a
party hereto, all right and authority to enter into this Agreement and each
other Loan Document to which it is a party, and to perform all of its
obligations under this and each other Loan Document to which it is a party; all
of the foregoing actions will have been taken prior to any request for Loans by
such Borrower, duly authorized by all necessary action on the part of such
Borrower, and when such Foreign Subsidiary Borrower becomes a party hereto, this
Agreement and each other Loan Document to which it is a party will constitute
valid and binding obligations of such Borrower enforceable in accordance with
their respective terms except as such terms may be limited by the application of
bankruptcy, moratorium, insolvency and similar laws affecting the rights of
creditors generally and by general principles of equity.
ARTICLE VI.
COVENANTS
---------
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.1 FINANCIAL REPORTING. The Company will maintain, for itself and
each Subsidiary, a system of accounting established and administered in
accordance with Agreement Accounting Principles, and furnish to the Lenders:
(i) Within 90 days after the close of each of its fiscal
years, an unqualified (except for qualifications
relating to changes in accounting principles or
practices reflecting changes in generally accepted
accounting principles and required or approved by the
Borrower's independent certified public accountants)
audit report certified by nationally recognized
independent certified public accountants, prepared in
accordance with Agreement Accounting Principles on a
consolidated and consolidating basis (consolidating
statements need not be certified by such accountants)
for itself and its Subsidiaries, including balance
sheets as of the end of such period, related profit
and loss and reconciliation of surplus statements, and
a statement of cash flows, accompanied by a
certificate of said accountants that, in the course of
their examination necessary for their certification of
the foregoing, they have obtained no knowledge of any
Default or Unmatured Default, or if, in the opinion of
such accountants, any Default or Unmatured Default
shall exist, stating the nature and status thereof.
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(ii) Within 45 days after the close of the first three
quarterly periods of each of its fiscal years, for
itself and its Subsidiaries, consolidated and
consolidating unaudited balance sheets as at the close
of each such period and consolidated and consolidating
profit and loss and reconciliation of surplus
statements and a statement of cash flows for the
period from the beginning of such fiscal year to the
end of such quarter, all certified by its chief
financial officer.
(iii) Together with the financial statements required under
Sections 6.1(i) and (ii), a compliance certificate in
substantially the form of Exhibit E signed by its
chief financial officer showing the calculations
necessary to determine compliance with this Agreement
and stating that no Default or Unmatured Default
exists, or if any Default or Unmatured Default exists,
stating the nature and status thereof.
(iv) Within 270 days after the close of each fiscal year, a
statement of the Unfunded Liabilities of each Single
Employer Plan, certified as correct by an actuary
enrolled under ERISA.
(v) As soon as possible and in any event within 10 days
after a Borrower knows that any Reportable Event has
occurred with respect to any Plan, a statement, signed
by the chief financial officer of the Company,
describing said Reportable Event and the action which
the Borrower proposes to take with respect thereto.
(vi) As soon as possible and in any event within 10 days
after receipt by a Borrower, a copy of (a) any notice
or claim to the effect that the Borrower or any of its
Subsidiaries is or may be liable to any Person as a
result of the release by the Borrower, any of its
Subsidiaries, or any other Person of any toxic or
hazardous waste or substance into the environment, and
(b) any notice alleging any violation of any federal,
state or local environmental, health or safety law or
regulation by the Company or any of its Subsidiaries,
which, in either case, could reasonably be expected to
have a Material Adverse Effect.
(vii) Promptly upon the furnishing thereof to the
shareholders of the Company, copies of all financial
statements, reports and proxy statements so furnished.
(viii) Promptly upon the filing thereof, copies of all
registration statements and annual, quarterly, monthly
or other regular reports which the Company or any of
its Subsidiaries files with the Securities and
Exchange Commission.
(ix) Such other information (including non-financial
information) as the Agent or any Lender may from time
to time reasonably request.
6.2 USE OF PROCEEDS. The Company will, and will cause each Subsidiary
to, use the proceeds of the Credit Extensions for working capital, general
corporate purposes and acquisitions. The Company will not, nor will it permit
any Subsidiary to, use any of the proceeds of the Advances to purchase or carry
any "margin stock" (as defined in Regulation U) .
6.3 NOTICE OF DEFAULT. The Company will, and will cause each Subsidiary
to, give prompt notice in writing to the Lenders of the occurrence of any
Default or Unmatured Default and of any other development, financial or
otherwise (including, without limitation, developments with respect to Year 2000
Issues), which could reasonably be expected to have a Material Adverse Effect.
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6.4 CONDUCT OF BUSINESS. The Company will, and will cause each
Subsidiary to, carry on and conduct its business in substantially the same
manner and in substantially the same fields of enterprise as it is presently
conducted and do all things necessary to remain duly incorporated or organized,
validly existing and (to the extent such concept applies to such entity) in good
standing as a domestic corporation, partnership or limited liability company in
its jurisdiction of incorporation or organization, as the case may be, and
maintain all requisite authority to conduct its business in each jurisdiction in
which its business is conducted.
6.5 TAXES. The Company will, and will cause each Subsidiary to, timely
file complete and correct United States federal and applicable foreign, state
and local tax returns required by law and pay when due all taxes, assessments
and governmental charges and levies upon it or its income, profits or Property,
except those which are being contested in good faith by appropriate proceedings
and with respect to which adequate reserves have been set aside in accordance
with Agreement Accounting Principles and those which the failure to file or pay
would not reasonably be expected to have a Material Adverse Effect.
6.6 INSURANCE. The Company will, and will cause each Subsidiary to,
maintain with financially sound and reputable insurance companies insurance on
all their Property in such amounts and covering such risks as is consistent with
sound business practice, and the Company will furnish to any Lender upon request
full information as to the insurance carried.
6.7 COMPLIANCE WITH LAWS. The Company will, and will cause each
Subsidiary to, comply with all laws, rules, regulations, orders, writs,
judgments, injunctions, decrees or awards to which it may be subject including,
without limitation, all Environmental Laws, provided that it shall not be deemed
a violation of this Section 6.7 if any failure to comply with any of the
foregoing would not result in fines, penalties, remediation costs, other similar
liabilities or injunctive relief which in the aggregate would have a Material
Adverse Effect.
6.8 MAINTENANCE OF PROPERTIES. The Company will, and will cause each
Subsidiary to, do all things necessary to maintain, preserve, protect and keep
its Property in good repair, working order and condition (excepting ordinary
wear and tear), and make all necessary and proper repairs, renewals and
replacements so that its business carried on in connection therewith may be
properly conducted at all times.
6.9 INSPECTION. The Company will, and will cause each Subsidiary to,
permit the Agent and the Lenders, by their respective representatives and
agents, to inspect any of the Property, books and financial records of the
Company and each Subsidiary, to examine and make copies of the books of accounts
and other financial records of the Company and each Subsidiary, and to discuss
the affairs, finances and accounts of the Company and each Subsidiary with, and
to be advised as to the same by, their respective officers at such reasonable
times and intervals as the Agent or any Lender may designate, provided that each
Lender shall provide the Company and the Agent with reasonable notice prior to
any visit or inspection; provided further, so long as no Default or Unmatured
Default exists, such inspection by the Agent or any Lender shall not be more
frequent than once in any twelve month period. In the event any Lender desires
to conduct an inspection of the Company, such Lender shall make a reasonable
effort to conduct such audit contemporaneously with any audit to be performed by
the Agent.
6.10 DIVIDENDS. The Company will not, nor will it permit any Subsidiary
to, declare or pay any dividends or make any distributions on its Capital Stock
(other than dividends payable in its own Capital Stock which is common stock) or
redeem, repurchase or otherwise acquire or retire any of its Capital Stock at
any time outstanding, except that (a) any Subsidiary may declare and pay
dividends or make distributions to the Company or to a Wholly-Owned Subsidiary
and (b) provided that no Default or
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Unmatured Default exists or would be caused thereby, the Company may make such
other dividends, redemptions or distributions which do not exceed in the
aggregate an amount equal to 50% of the Consolidated Net Income of the Company
and its Subsidiaries earned in the twelve-month period immediately preceding the
date of any such dividend, redemption or distribution, plus other redemptions
and repurchases in connection with the Company's share repurchase program in an
aggregate amount not exceeding $5,000,000 in any fiscal year.
6.11 INDEBTEDNESS. The Company will not, nor will it permit any
Subsidiary to, create, incur or suffer to exist any Indebtedness, except: (i)
The Loans, the Facility Letters of Credit and the other Obligations.
(ii) Indebtedness of the Company or any Subsidiary owing to the
Company or any of its Subsidiaries.
(iii) Contingent Obligations with respect to the endorsement of
instruments for deposit or collection in the ordinary
course of business, Contingent Obligations relating to
Indebtedness which is otherwise permitted under this
Section 6.11 and Contingent Obligations with respect to
performance guaranties given by the Company with respect
to obligations of Subsidiaries under contracts in the
ordinary course of business.
(iv) Indebtedness of the Borrowers under Rate Hedging
Agreements.
(v) Indebtedness outstanding under the Senior Note Agreement.
(vi) Subordinated Indebtedness.
(vii) Indebtedness described on Schedule 6.11, provided that no
increase in the commitment or facility amount thereof
shall be permitted.
(viii) Other Indebtedness; provided that, at the time of the
creation, incurrence or assumption of such other
Indebtedness and after giving effect thereto, no Default
or Unmatured Default exists and the aggregate amount of
all such other Indebtedness of the Company and its
Subsidiaries does not exceed an amount equal to
$2,000,000.
(ix) Any refunding or refinancing of any Indebtedness referred
to in clauses (ii) through (viii) above, provided that any
such refunding or refinancing of such Indebtedness does
not increase the principal amount thereof, shorten the
maturities thereof or make any of the other terms or
provisions thereof materially more onerous on the Company
or any of its Subsidiaries.
6.12 MERGER. The Company will not, nor will it permit any Subsidiary
to, merge or consolidate with or into any other Person, except that a Subsidiary
may merge into the Company or a Wholly-Owned Subsidiary and except as otherwise
permitted pursuant to Section 6.14.
6.13 SALE OF ASSETS. The Company will not, nor will it permit any
Subsidiary to, lease, sell or otherwise dispose of its Property to any other
Person, except:
(i) Sales of inventory in the ordinary course of business.
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(ii) Sales or other dispositions in the ordinary course of
business of fixed assets for the purpose of replacing
such fixed assets, provided that such fixed assets
are replaced within 180 days of such sale or other
disposition with other fixed assets which have a fair
market value not materially less than the fixed
assets sold or otherwise disposed of.
(iii) Leases, sales or other dispositions of its Property
that, together with all other Property of the Company
and its Subsidiaries previously leased, sold or
disposed of (other than inventory in the ordinary
course of business) as permitted by this Section
during the twelve-month period ending with the month
in which any such lease, sale or other disposition
occurs, do not constitute a Substantial Portion of
the Property of the Company and its Subsidiaries.
(iv) Leases, sales or transfers of property from the
Company to any Subsidiary, from any Subsidiary to the
Company or from any Subsidiary to any other
Subsidiary.
6.14 INVESTMENTS AND ACQUISITIONS. The Company will not, nor will it
permit any Subsidiary to, make or suffer to exist any Investments (including
without limitation, loans and advances to, and other Investments in,
Subsidiaries), or commitments therefor, or to create any Subsidiary or to become
or remain a partner in any partnership or joint venture, or to make any
Acquisition of any Person, except:
(i) Cash Equivalent Investments.
(ii) Existing Investments in Subsidiaries and additional
Investments in Subsidiaries (including any newly
created Subsidiary) not exceeding $100,000 in the
aggregate for each Subsidiary, Indebtedness of any
Subsidiary to the Company permitted pursuant to
Section 6.11 and other Investments in existence on
the date hereof and described in Schedule 6.14.
(iii) Acquisitions, so long as (A) the Company or a
Subsidiary shall be the surviving or continuing
corporation thereof, so long as any new Subsidiary
formed in connection with such Acquisition within
sixty (60) days of such Acquisition, either (x) is
merged into the Company, or (y) executes a Guaranty
limited to the consideration paid by the Company or
such Subsidiary in connection with such Acquisition,
(B) immediately before and after such merger or
acquisition, no Default or Unmatured Default shall
exist or shall have occurred and be continuing and
the representations and warranties contained in
Article V shall be true and correct on and as of the
date thereof (both before and after such acquisition
is consummated) as if made on the date such
acquisition is consummated, (C) the aggregate amount
paid or payable in cash for (x) all such
acquisitions by the Company during any fiscal year
does not exceed, with respect to the fiscal year
ending March 31, 2000, $10,000,000 plus the
Anticipated Acquisitions, and for any other fiscal
year thereafter, $15,000,000, and (y) all such
acquisitions (other than the Anticipated
Acquisitions) by the Company after the Effective
Date through March 31, 2001 does not exceed
$30,000,000, (D) after giving effect to such
acquisition, the Available Aggregate Commitment
shall be not less than $10,000,000 and (D) prior to
the consummation of any such acquisition in which
the total consideration paid or to be paid by the
Company exceeds $5,000,000, the Company shall have
provided to the Lenders a certificate of the chief
financial officer of the Company (attaching
computations
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and pro forma financial statements to demonstrate
pro forma compliance with all financial covenants
hereunder both before and after such acquisition has
been completed), stating that such acquisition
complies with this Section 6.14 and that any other
conditions under this Agreement relating to such
transaction have been satisfied. For purposed of
calculating consideration to be paid in connection
with any Acquisition, the amount of any earn-out
which may be paid by the Company in connection with
such Acquisition shall be excluded.
(iv) Investments in joint ventures in an aggregate amount
not exceeding (A) $1,000,000 with respect to any
joint venture, and (B) $3,000,000 in the aggregate.
6.15 LIENS. The Company will not, nor will it permit any Subsidiary to,
create, incur, or suffer to exist any Lien in, of or on the Property of the
Company or any of its Subsidiaries, except:
(i) Liens for taxes, assessments or governmental charges
or levies on its Property if the same shall not at
the time be delinquent or thereafter can be paid
without penalty, or are being contested in good faith
and by appropriate proceedings and for which adequate
reserves in accordance with Agreement Accounting
Principles shall have been set aside on its books.
(ii) Liens imposed by law, such as carriers',
warehousemen's and mechanics' liens and other similar
liens arising in the ordinary course of business
which secure payment of obligations not more than 60
days past due or which are being contested in good
faith by appropriate proceedings and for which
adequate reserves shall have been set aside on its
books.
(iii) Liens arising out of pledges or deposits under
worker's compensation laws, unemployment insurance,
old age pensions, or other social security or
retirement benefits, or similar legislation.
(iv) Utility easements, building restrictions and such
other encumbrances or charges against real property
as are of a nature generally existing with respect to
properties of a similar character and which do not in
any material way affect the marketability of the same
or interfere with the use thereof in the business of
the Borrower or its Subsidiaries.
(v) Liens existing on the date hereof and described in
Schedule 6.15.
(vi) Purchase money Liens securing Indebtedness otherwise
permitted pursuant to Section 6.11.
6.16 YEAR 2000. The Company will take and will cause each of its
Subsidiaries to take all such actions as are reasonably necessary to
successfully implement the Year 2000 Program and to assure that Year 2000 Issues
will not have a Material Adverse Effect. At the request of the Agent, the
Company will provide a description of the Year 2000 Program, together with any
updates or progress reports with respect thereto.
6.17 AFFILIATES. The Company will not, and will not permit any
Subsidiary to, enter into any transaction (including, without limitation, the
purchase or sale of any Property or service) with, or make any payment or
transfer to, any Affiliate except in the ordinary course of business and
pursuant to
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the reasonable requirements of the Company's or such Subsidiary's business and
upon fair and reasonable terms no less favorable to the Company or such
Subsidiary than the Company or such Subsidiary would obtain in a comparable
arms-length transaction.
6.18 FINANCIAL CONTRACTS. The Company will not, nor will it permit any
Subsidiary to, enter into or remain liable upon any Financial Contract for
purposes of financial speculation.
6.19 ADDITIONAL COVENANTS. Any covenants, terms, conditions or defaults
in the Senior Note Agreement not substantially provided for in this Agreement or
more favorable to the holders of Senior Note Agreement issued in connection
therewith are hereby incorporated by reference into this Agreement to the same
extent as if set forth fully herein, and no subsequent amendment, waiver,
termination or modification thereof shall effect any such covenants, terms,
conditions or defaults as incorporated herein.
6.20 FINANCIAL COVENANTS.
6.20.1. CONSOLIDATED FIXED CHARGE COVERAGE RATIO. The Company will
not permit the Consolidated Fixed Charge Coverage Ratio of the Company and its
Subsidiaries, determined as of the end of each of its fiscal quarters to be less
than 1.5 to 1.0.
6.20.2. LEVERAGE RATIO. The Company will not permit the
Consolidated Leverage Ratio of the Company and its Subsidiaries, determined as
of the end of each of its fiscal quarters, to be greater than (i) during the
period from and including the Effective Date to but excluding March 30, 2000,
3.2 to 1.0, (ii) during the period from and including March 31, 2000 to but
excluding March 30, 2001, 3.0 to 1.0, and (iii) at any time thereafter, 2.75 to
1.0.
6.20.3. MINIMUM CONSOLIDATED NET WORTH. The Company will at all
times maintain Consolidated Net Worth of not less than the sum of (i)
$52,000,000, plus (ii) 50% of Consolidated Net Income earned in each fiscal year
beginning with the year ending March 31, 2000 (without deduction for losses).
6.20.4. FIXED CHARGE COVERAGE RATIO. The Company will not permit
the Fixed Charge Coverage Ratio of the Company only, determined as of the end of
each of its fiscal quarters to be less than 1.5 to 1.0.
6.20.5. MINIMUM NET WORTH. The Company will at all times maintain
Net Worth of the Company only of not less than the sum of (i) $34,000,000, plus
(ii) 50% of Consolidated Net Income earned in each fiscal year beginning with
the year ending March 31, 2000 (without deduction for losses).
ARTICLE VII.
DEFAULTS
--------
The occurrence of any one or more of the following events shall
constitute a Default:
7.1 Any representation or warranty made or deemed made by or on behalf
of the Company or any of its Subsidiaries to the Lenders or the Agent under or
in connection with this Agreement, any Credit Extension, or any certificate or
information delivered in connection with this Agreement or any other Loan
Document shall be materially false on the date as of which made.
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7.2 Nonpayment of principal of any Loan when due, nonpayment of any
Reimbursement Obligation within one Business Day after the same becomes due, or
nonpayment of interest upon any Loan or of any facility fee, LC Fee or other
obligations under any of the Loan Documents within five days after the same
becomes due.
7.3 The breach by any Borrower of any of the terms or provisions in
Sections 6.1, 6.2, 6.3, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, 6.18 or 6.19.
7.4 The breach by any Borrower (other than a breach which constitutes a
Default under another Section of this Article VII) of any of the terms or
provisions of this Agreement which is not remedied within thirty days after
written notice from the Agent or any Lender.
7.5 Failure of the Company or any of its Subsidiaries to pay when due
(beyond the applicable grace period with respect thereto, if any) any
Indebtedness aggregating in excess of $5,000,000 ("Material Indebtedness"); or
the default by the Company or any of its Subsidiaries in the performance (beyond
the applicable grace period with respect thereto, if any) of any term, provision
or condition contained in any agreement under which any such Material
Indebtedness was created or is governed, or any other event shall occur or
condition exist, the effect of which default or event is to cause, or to permit
the holder or holders of such Material Indebtedness to cause, such Material
Indebtedness to become due prior to its stated maturity; or any Material
Indebtedness of the Company or any of its Subsidiaries shall be declared to be
due and payable or required to be prepaid or repurchased (other than by a
regularly scheduled payment) prior to the stated maturity thereof; or the
Company or any of its Subsidiaries shall not pay, or admit in writing its
inability to pay, its debts generally as they become due.
7.6 The Company or any of its Subsidiaries shall (i) have an order for
relief entered with respect to it under the Federal bankruptcy laws as now or
hereafter in effect, (ii) make an assignment for the benefit of creditors, (iii)
apply for, seek, consent to, or acquiesce in, the appointment of a receiver,
custodian, trustee, examiner, liquidator or similar official for it or any
Substantial Portion of its Property, (iv) institute any proceeding seeking an
order for relief under the Federal bankruptcy laws as now or hereafter in effect
or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution,
winding up, liquidation, reorganization, arrangement, adjustment or composition
of it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors or fail to file an answer or other pleading
denying the material allegations of any such proceeding filed against it, (v)
take any corporate or partnership action to authorize or effect any of the
foregoing actions set forth in this Section 7.6 or (vi) fail to contest in good
faith any appointment or proceeding described in Section 7.7.
7.7 Without the application, approval or consent of the Company or any
of its Subsidiaries, a receiver, trustee, examiner, liquidator or similar
official shall be appointed for the Company or any of its Subsidiaries or any
Substantial Portion of its Property, or a proceeding described in Section
7.6(iv) shall be instituted against the Company or any of its Subsidiaries and
such appointment continues undischarged or such proceeding continues undismissed
or unstayed for a period of 60 consecutive days.
7.8 Any court, government or governmental agency shall condemn, seize
or otherwise appropriate, or take custody or control of, all or any portion of
the Property of the Company and its Subsidiaries which, when taken together with
all other Property of the Company and its Subsidiaries so condemned, seized,
appropriated, or taken custody or control of, during the twelve-month period
ending with the month in which any such action occurs, constitutes a Substantial
Portion.
7.9 The Company or any of its Subsidiaries shall fail within 30 days to
pay, bond or otherwise discharge one or more (i) judgments or orders for the
payment of money in excess of $5,000,000 (or the equivalent thereof in
currencies other than U.S. Dollars) in the aggregate, or (ii)
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nonmonetary judgments or orders which, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect, which judgment(s), in
any such case, is/are not stayed on appeal or otherwise being appropriately
contested in good faith.
7.10 The Unfunded Liabilities of all Single Employer Plans shall exceed
in the aggregate $1,000,000 or any Reportable Event shall occur in connection
with any Plan.
7.11 The Company or any of its Subsidiaries shall (i) be the subject of
any proceeding or investigation pertaining to the release by the Company, any of
its Subsidiaries or any other Person of any toxic or hazardous waste or
substance into the environment, or (ii) violate any Environmental Law, which, in
the case of an event described in clause (i) or clause (ii), could reasonably be
expected to have a Material Adverse Effect.
7.12 Any Guaranty shall fail to remain in full force or effect or any
action shall be taken to discontinue or to assert the invalidity or
unenforceability of any Guaranty, or any Guarantor shall deny that it has any
further liability under any Guaranty to which it is a party, or shall give
notice to such effect.
ARTICLE VIII.
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
----------------------------------------------
8.1 ACCELERATION; FACILITY LC COLLATERAL ACCOUNT.
(i) If any Default described in Section 7.6 or 7.7 occurs, the
obligations of the Lenders to make Loans hereunder and the obligation and power
of the LC Issuer to issue Facility LCs shall automatically terminate and the
Obligations shall immediately become due and payable without any election or
action on the part of the Agent, the LC Issuer or any Lender and the Borrowers
will be and become thereby unconditionally obligated, without any further
notice, act or demand, to pay to the Agent an amount in immediately available
funds, which funds shall be held in the Facility LC Collateral Account, equal to
the difference of (x) the amount of LC Obligations at such time, less (y) the
amount on deposit in the Facility LC Collateral Account at such time which is
free and clear of all rights and claims of third parties and has not been
applied against the Obligations (such difference, the "Collateral Shortfall
Amount"). If any other Default occurs, the Required Lenders (or the Agent with
the consent of the Required Lenders) may (a) terminate or suspend the
obligations of the Lenders to make Loans hereunder and the obligation and power
of the LC Issuer to issue Facility LCs, or declare the Obligations to be due and
payable, or both, whereupon the Obligations shall become immediately due and
payable, without presentment, demand, protest or notice of any kind, all of
which each Borrower hereby expressly waives, and (b) upon notice to the Company
and in addition to the continuing right to demand payment of all amounts payable
under this Agreement, make demand on the Borrowers to pay, and the Borrowers
will, forthwith upon such demand and without any further notice or act, pay to
the Agent the Collateral Shortfall Amount, which funds shall be deposited in the
Facility LC Collateral Account.
(ii) If at any time while any Default is continuing, the Agent
determines that the Collateral Shortfall Amount at such time is greater than
zero, the Agent may make demand on the Borrowers to pay, and the Borrowers will,
forthwith upon such demand and without any further notice or act, pay to the
Agent the Collateral Shortfall Amount, which funds shall be deposited in the
Facility LC Collateral Account.
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(iii) The Agent may at any time or from time to time after funds
are deposited in the Facility LC Collateral Account, apply such funds to the
payment of the Obligations and any other amounts as shall from time to time have
become due and payable by the Borrowers to the Lenders or the LC Issuer under
the Loan Documents.
(iv) Neither any Borrower nor any Person claiming on behalf of or
through the Borrower shall have any right to withdraw any of the funds held in
the Facility LC Collateral Account. After all of the Obligations have been
indefeasibly paid in full and the Aggregate Commitment has been terminated, any
funds remaining in the Facility LC Collateral Account shall be returned by the
Agent to the Company or paid to whomever may be legally entitled thereto at such
time.
8.2 AMENDMENTS.
Subject to the provisions of this Article VIII, the Required Lenders (or the
Agent with the consent in writing of the Required Lenders) and the Borrowers may
enter into agreements supplemental hereto for the purpose of adding or modifying
any provisions to the Loan Documents or changing in any manner the rights of the
Lenders or the Borrowers hereunder or waiving any Default hereunder provided,
however, no such supplemental agreement shall, (i) without the consent of the
Required U.S. Lenders, allow the Company to obtain a U.S. Revolving Credit Loan
or U.S. Facility Letter of Credit if it would otherwise be unable to do so
absent such supplemental agreement, (ii) without the consent of the Required
Canadian Lenders, allow the Canadian Borrower, to obtain a Canadian Loan or
Canadian Facility Letter of Credit if it would otherwise be unable to do so
absent such supplemental agreement, or (iii) without the consent of the Required
U.K. Lenders, allow the U.K. Borrower to obtain a U.K. Revolving Credit Loan or
U.K. Facility Letter of Credit if it would otherwise be unable to do so absent
such supplemental agreement; provided, further, that no such supplemental
agreement shall, without the consent of all of the Lenders:
(a) Extend the final maturity of any Loan, or extend the expiry
date of any Facility LC to a date after the Facility
Termination Date or postpone any regularly scheduled payment of
principal of any Loan or forgive all or any portion of the
principal amount thereof or any Reimbursement Obligation
related thereto, or reduce the rate or extend the time of
payment of interest or fees thereon or Reimbursement
Obligations related thereto.
(b) Reduce the percentage specified in the definition of Required
Lenders, Required Canadian Lenders or Required U.K. Lenders.
(c) Extend the Facility Termination Date, or increase the amount of
the Aggregate Commitment, the Commitment of any Lender
hereunder or the commitment to issue Facility LCs, or permit
the Borrower to assign its rights under this Agreement.
(d) Amend this Section 8.2.1.
(e) Release any guarantor of any Advance.
No amendment of any provision of this Agreement relating to the Agent shall be
effective without the written consent of the Agent, and no amendment of any
provision relating to the LC Issuer shall be effective without the written
consent of the LC Issuer. The Agent may waive payment of the fee required under
Section 13.3.2 without obtaining the consent of any other party to this
Agreement.
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8.2.1. In addition to amendments effected pursuant to the
foregoing, Schedule 1.1 may be amended as follows:
(i) Schedule 1.1 will be automatically amended to add
Subsidiaries of the Company as additional Foreign
Subsidiary Borrowers upon (A) execution and delivery
by the Company, any such Foreign Subsidiary Borrower
and the Agent, of a Joinder Agreement providing for
any such Subsidiary to become a Foreign Subsidiary
Borrower, (B) delivery to the Agent of (a) a Foreign
Subsidiary Opinion in respect of such additional
Foreign Subsidiary Borrower and (b) such other
documents with respect thereto as the Agent shall
reasonably request and (c) the written approval of the
Agent in its sole discretion.
(ii) Schedule 1.1 will be automatically amended to remove
any Subsidiary as a Foreign Subsidiary Borrower upon
(A) written notice by the Company to the Agent to such
effect and (B) repayment in full of all outstanding
Loans and all other obligations pursuant to any Loan
Document of such Foreign Subsidiary Borrower.
8.3 PRESERVATION OF RIGHTS. No delay or omission of the Lenders, the LC
Issuer or the Agent to exercise any right under the Loan Documents shall impair
such right or be construed to be a waiver of any Default or an acquiescence
therein, and the making of a Credit Extension notwithstanding the existence of a
Default or the inability of the Borrower to satisfy the conditions precedent to
such Credit Extension shall not constitute any waiver or acquiescence. Any
single or partial exercise of any such right shall not preclude other or further
exercise thereof or the exercise of any other right, and no waiver, amendment or
other variation of the terms, conditions or provisions of the Loan Documents
whatsoever shall be valid unless in writing signed by the Lenders required
pursuant to Section 8.2, and then only to the extent in such writing
specifically set forth. All remedies contained in the Loan Documents or by law
afforded shall be cumulative and all shall be available to the Agent, the LC
Issuer and the Lenders until the Obligations have been paid in full.
ARTICLE IX.
GUARANTEE
---------
9.1 GUARANTEE.
(a) The Company hereby unconditionally and irrevocably guarantees
to the Agent and the Lenders and their respective successors, endorsees,
transferees and assigns, the prompt and complete payment and performance by the
Foreign Subsidiary Borrowers when due (whether at the stated maturity, by
acceleration or otherwise) of the Obligations owing by such Foreign Subsidiary
Borrowers.
(b) The Company further agrees to pay any and all expenses
(including, without limitation, all reasonable fees and disbursements of
counsel) which are paid or incurred by the Agent, or any Lender in enforcing, or
obtaining advice of counsel in respect of, any rights with respect to, or
collecting, any or all of the Obligations and/or enforcing any rights with
respect to, or collecting against, the Company under this Section. This Section
shall remain in full force and effect until the Obligations are paid in full and
the Commitments are terminated, notwithstanding that from time to time prior
thereto the Borrowers may be free from any Obligations.
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(c) No payment or payments made by any Borrower or any other Person
or received or collected by the Agent or any Lender from any Borrower or any
other Person by virtue of any action or proceeding or any set-off or
appropriation or application, at any time or from time to time, in reduction of
or in payment of the Obligations shall be deemed to modify, reduce, release or
otherwise affect the liability of the Company hereunder which shall,
notwithstanding any such payment or payments, remain liable hereunder for the
Obligations until the Obligations are paid in full and the Commitments are
terminated.
(d) The Company agrees that whenever, at any time, or from time to
time, it shall make any payment to the Agent or any Lender on account of its
liability under this Section, it will notify the Agent and such Lender in
writing that such payment is made under this Section for such purpose.
9.2 NO SUBROGATION. Notwithstanding any payment or payments made by the
Company hereunder, or any set-off or application of funds of the Company by the
Agent or any Lender, the Company shall not be entitled to be subrogated to any
of the rights of the Agent or any Lender against the Foreign Subsidiary
Borrowers or against any collateral security or guarantee or right of offset
held by the Agent or any Lender for the payment of the Obligations, nor shall
the Company seek or be entitled to seek any contribution or reimbursement from
the Foreign Subsidiary Borrowers in respect of payments made by the Company
hereunder, until all amounts owing to the Agent and the Lenders by the Borrowers
on account of the Obligations are paid in full and the Commitments are
terminated. If any amount shall be paid to the Company on account of such
subrogation rights at any time when all of the Obligations shall not have been
paid in full, such amount shall be held by the Company in trust for the Agent
and the Lenders, segregated from other funds of the Company, and shall,
forthwith upon receipt by the Company, be turned over to the Agent in the exact
form received by the Company (duly endorsed by the Company to the Agent, if
required), to be applied against the Obligations, whether matured or unmatured,
in such order as Agent may determine. The provisions of this paragraph shall
survive the termination of this Agreement and the payment in full of the
Obligations and the termination of the Commitments.
9.3 AMENDMENTS, ETC. WITH RESPECT TO THE OBLIGATIONS; WAIVER OF RIGHTS.
The Company shall remain obligated hereunder notwithstanding that, without any
reservation of rights against the Company, and without notice to or further
assent by the Company, any demand for payment of any of the Obligations made by
the Agent or the Required Lenders may be rescinded by the Agent or the Required
Lenders, and any of the Obligations continued, and the Obligations, or the
liability of any other party upon or for any part thereof, or any collateral
security or guarantee therefor or right of offset with respect thereto, may,
from time to time, in whole or in part be renewed, extended, amended, modified,
accelerated, compromised, waived, surrendered or released by the Agent or the
Required Lenders, and any Loan Documents and any other documents executed and
delivered in connection therewith may be amended, modified, supplemented or
terminated, in whole or in part, in accordance with the provisions thereof as
the Agent (or the Required Lenders, as the case may be) may deem advisable from
time to time, and any collateral security, guarantee or right of offset at any
time held by the Agent or any Lender for the payment of the Obligations may be
sold, exchanged, waived, surrendered or released. None of the Agent or any
Lender shall have any obligation to protect, secure, perfect or insure any Lien
at any time held by it as security for the Obligations or for this Agreement or
any property subject thereto. When making any demand hereunder against the
Company, the Agent or any Lender may, but shall be under no obligation to, make
a similar demand on any other Borrower or any other guarantor, and any failure
by the Agent or any Lender to make any such demand or to collect any payments
from any other Borrower or any such other guarantor or any release of the
Borrowers or such other guarantor shall not relieve the Company of its
obligations or liabilities hereunder, and shall not impair or affect the rights
and remedies, express or implied, or as a matter of law, of the Agent or any
Lender against the Company. For the purposes hereof "demand" shall include the
commencement and continuance of any legal proceedings.
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9.4 GUARANTEE ABSOLUTE AND UNCONDITIONAL. The Company waives any and
all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by the Agent or any Lender upon
this Agreement or acceptance of this Agreement; the Obligations, and any of
them, shall conclusively be deemed to have been created, contracted or incurred,
or renewed, extended, amended or waived, in reliance upon this Agreement; and
all dealings among the Borrowers, on the one hand, and the Agent and the
Lenders, on the other, shall likewise be conclusively presumed to have been had
or consummated in reliance upon this Agreement. The Company waives diligence,
presentment, protest, demand for payment and notice of default or nonpayment to
or upon the Foreign Subsidiary Borrowers and the Company with respect to the
Obligations. This Article IX shall be construed as a continuing, absolute and
unconditional guarantee of payment without regard to (a) the validity,
regularity or enforceability of this Agreement, any other Loan Document, any of
the Obligations or any other collateral security therefor or guarantee or right
of offset with respect thereto at any time or from time to time held by the
Agent or any Lender, (b) any defense, set-off or counterclaim (other than a
defense of payment or performance by any Borrower) which may at any time be
available to or be asserted by any Borrower against the Agent or any Lender, or
(c) any other circumstance whatsoever (with or without notice to or knowledge of
any Borrower) which constitutes, or might be construed to constitute, an
equitable or legal discharge of the Borrowers for the Obligations, or of the
Company under this Section 9.4, in bankruptcy or in any other instance (other
than a defense of payment or performance by the Borrowers). When pursuing its
rights and remedies hereunder against the Company, the Agent and any Lender may,
but shall be under no obligation to, pursue such rights and remedies as it may
have against any Borrower or any other Person or against any collateral security
or guarantee for the Obligations or any right of offset with respect thereto,
and any failure by the Agent or any Lender to pursue such other rights or
remedies or to collect any payments from the Borrowers or any such other Person
or to realize upon any such collateral security or guarantee or to exercise any
such right of offset, or any release of the Borrowers or any such other Person
or of any such collateral security, guarantee or right of offset, shall not
relieve the Company of any liability hereunder, and shall not impair or affect
the rights and remedies, whether express, implied or available as a matter of
law, of the Agent or any Lender against the Company. This Article IX shall
remain in full force and effect and be binding in accordance with and to the
extent of its terms upon the Company and its successors and assigns, and shall
inure to the benefit of the Agent and the Lenders, and their respective
successors, indorsees, transferees and assigns, until all the Obligations and
the obligations of the Company under this Agreement shall have been satisfied by
payment in full and the Commitments shall be terminated, notwithstanding that
from time to time during the term of this Agreement the Borrowers may be free
from any Obligations.
9.5 REINSTATEMENT. This Article IX shall continue to be effective, or
be reinstated, as the case may be, if at any time payment, or any part thereof,
of any of the Obligations is rescinded or must otherwise be restored or returned
by the Agent or any Lender upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of any Borrower or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or Trustee or similar
officer for, any Borrower or any substantial part of its property, or otherwise,
all as though such payments had not been made.
9.6 PAYMENTS. The Company hereby agrees that all payments required to
be made by it hereunder will be made to the Agent without set-off or
counterclaim in accordance with the terms of the Obligations, including, without
limitation, in the currency in which payment is due.
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ARTICLE X.
GENERAL PROVISIONS
------------------
10.1 SURVIVAL OF REPRESENTATIONS. All representations and warranties of
the Borrowers contained in this Agreement shall survive the making of the Credit
Extensions herein contemplated.
10.2 GOVERNMENTAL REGULATION. Anything contained in this Agreement to
the contrary notwithstanding, neither the LC Issuer not any Lender shall be
obligated to extend credit to any Borrower in violation of any limitation or
prohibition provided by any applicable statute or regulation.
10.3 HEADINGS. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any of
the provisions of the Loan Documents.
10.4 ENTIRE AGREEMENT. The Loan Documents embody the entire agreement
and understanding among the Borrowers, the Agent, the LC Issuer and the Lenders
and supersede all prior agreements and understandings among the Borrower, the
Agent, the LC Issuer and the Lenders relating to the subject matter thereof
other than the fee letter described in Section 10.13.
10.5 SEVERAL OBLIGATIONS; BENEFITS OF THIS AGREEMENT. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other (except to the extent to which the
Agent is authorized to act as such). The failure of any Lender to perform any of
its obligations hereunder shall not relieve any other Lender from any of its
obligations hereunder. This Agreement shall not be construed so as to confer any
right or benefit upon any Person other than the parties to this Agreement and
their respective successors and assigns, provided, however, that the parties
hereto expressly agree that the Arranger shall enjoy the benefits of the
provisions of Sections 10.6, 10.10 and 11.11 to the extent specifically set
forth therein and shall have the right to enforce such provisions on its own
behalf and in its own name to the same extent as if it were a party to this
Agreement.
10.6 EXPENSES; INDEMNIFICATION.
(i) The Borrowers shall reimburse the Agent and the Arranger for
any costs, internal charges and out-of-pocket expenses (including reasonable
attorneys' fees and time charges of attorneys for the Agent, which attorneys may
be employees of the Agent) paid or incurred by the Agent or the Arranger in
connection with the preparation, negotiation, execution, delivery, syndication,
review, amendment, modification, and administration of the Loan Documents. The
Borrowers also agree to reimburse the Agent, the Arranger, the LC Issuer and the
Lenders for any costs, internal charges and out-of-pocket expenses (including
reasonable attorneys' fees and reasonable time charges of attorneys for the
Agent, the Arranger, the LC Issuer and the Lenders, which attorneys may be
employees of the Agent, the Arranger, the LC Issuer or the Lenders) paid or
incurred by the Agent, the Arranger, the LC Issuer or any Lender in connection
with the collection and enforcement of the Loan Documents.
(ii) The Borrowers hereby further agree to indemnify the Agent,
the Arranger, the LC Issuer and each Lender, its directors, officers and
employees against all losses, claims, damages, penalties, judgments, liabilities
and expenses (including, without limitation, all reasonable expenses of
litigation or preparation therefor whether or not the Agent, the Arranger, the
LC Issuer or any Lender is a party thereto) which any of them may pay or incur
arising out of or relating to this Agreement, the other Loan Documents, the
transactions contemplated hereby or the direct or indirect application or
proposed application of the proceeds of any Credit Extension hereunder except to
the extent that they are determined in a final non-appealable judgment by a
court of competent jurisdiction to have resulted from
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the gross negligence or willful misconduct of the party seeking indemnification.
The obligations of the Borrowers under this Section 10.6 shall survive the
termination of this Agreement.
10.7 NUMBERS OF DOCUMENTS. All statements, notices, closing documents,
and requests hereunder shall be furnished to the Agent with sufficient
counterparts so that the Agent may furnish one to each of the Lenders.
10.8 ACCOUNTING. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement Accounting
Principles, except that any calculation or determination which is to be made on
a consolidated basis shall be made for the Company and all its Subsidiaries,
including those Subsidiaries, if any, which are unconsolidated on the Company's
audited financial statements.
10.9 SEVERABILITY OF PROVISIONS. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
10.10 NONLIABILITY OF LENDERS. The relationship between the Borrowers
on the one hand and the Lenders, the LC Issuer and the Agent on the other hand
shall be solely that of borrower and lender. Neither the Agent, the Arranger,
the LC Issuer nor any Lender shall have any fiduciary responsibilities to any
Borrower. Neither the Agent, the Arranger, the LC Issuer nor any Lender
undertakes any responsibility to any Borrower to review or inform any Borrower
of any matter in connection with any phase of the Borrower's business or
operations. Each Borrower agrees that neither the Agent, the Arranger, the LC
Issuer nor any Lender shall have liability to any Borrower (whether sounding in
tort, contract or otherwise) for losses suffered by any Borrower in connection
with, arising out of, or in any way related to, the transactions contemplated
and the relationship established by the Loan Documents, or any act, omission or
event occurring in connection therewith, unless it is determined in a final
non-appealable judgment by a court of competent jurisdiction that such losses
resulted from the gross negligence or willful misconduct of the party from which
recovery is sought. Neither the Agent, the Arranger, the LC Issuer nor any
Lender shall have any liability with respect to, and each Borrower hereby
waives, releases and agrees not to sue for, any special, indirect or
consequential damages suffered by the Borrowers in connection with, arising out
of, or in any way related to the Loan Documents or the transactions contemplated
thereby.
10.11 CONFIDENTIALITY. Each Lender agrees to hold any confidential
information which it may receive from any Borrower pursuant to this Agreement in
confidence, except for disclosure (i) to its Affiliates and to other Lenders and
their respective Affiliates, (ii) to legal counsel, accountants, and other
professional advisors to such Lender or to a Transferee, (iii) to regulatory
officials, (iv) to any Person as requested pursuant to or as required by law,
regulation, or legal process, (v) to any Person in connection with any legal
proceeding to which such Lender is a party, (vi) to such Lender's direct or
indirect contractual counterparties in swap agreements or to legal counsel,
accountants and other professional advisors to such counterparties, and (vii)
permitted by Section 13.4.
10.12 NONRELIANCE. Each Lender hereby represents that it is not relying
on or looking to any margin stock (as defined in Regulation U of the Board of
Governors of the Federal Reserve System) for the repayment of the Credit
Extensions provided for herein.
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ARTICLE XI.
THE AGENT
---------
11.1 APPOINTMENT; NATURE OF RELATIONSHIP. NBD is hereby appointed by
each of the Lenders as its contractual representative (herein referred to as the
"Agent") hereunder and under each other Loan Document, and each of the Lenders
irrevocably authorizes the Agent to act as the contractual representative of
such Lender with the rights and duties expressly set forth herein and in the
other Loan Documents. The Agent agrees to act as such contractual representative
upon the express conditions contained in this Article X. Notwithstanding the use
of the defined term "Agent," it is expressly understood and agreed that the
Agent shall not have any fiduciary responsibilities to any Lender by reason of
this Agreement or any other Loan Document and that the Agent is merely acting as
the contractual representative of the Lenders with only those duties as are
expressly set forth in this Agreement and the other Loan Documents. In its
capacity as the Lenders' contractual representative, the Agent (i) does not
hereby assume any fiduciary duties to any of the Lenders, (ii) is a
"representative" of the Lenders within the meaning of Section 9-105 of the
Uniform Commercial Code and (iii) is acting as an independent contractor, the
rights and duties of which are limited to those expressly set forth in this
Agreement and the other Loan Documents. Each of the Lenders hereby agrees to
assert no claim against the Agent on any agency theory or any other theory of
liability for breach of fiduciary duty, all of which claims each Lender hereby
waives.
11.2 POWERS. The Agent shall have and may exercise such powers under
the Loan Documents as are specifically delegated to the Agent by the terms of
each thereof, together with such powers as are reasonably incidental thereto.
The Agent shall have no implied duties to the Lenders, or any obligation to the
Lenders to take any action thereunder except any action specifically provided by
the Loan Documents to be taken by the Agent.
11.3 GENERAL IMMUNITY. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable to the Borrowers, the Lenders or
any Lender for any action taken or omitted to be taken by it or them hereunder
or under any other Loan Document or in connection herewith or therewith except
to the extent such action or inaction is determined in a final non-appealable
judgment by a court of competent jurisdiction to have arisen from the gross
negligence or willful misconduct of such Person.
11.4 NO RESPONSIBILITY FOR LOANS, RECITALS, ETC. Neither the Agent nor
any of its directors, officers, agents or employees shall be responsible for or
have any duty to ascertain, inquire into, or verify (a) any statement, warranty
or representation made in connection with any Loan Document or any borrowing
hereunder; (b) the performance or observance of any of the covenants or
agreements of any obligor under any Loan Document, including, without
limitation, any agreement by an obligor to furnish information directly to each
Lender; (c) the satisfaction of any condition specified in Article IV, except
receipt of items required to be delivered solely to the Agent; (d) the existence
or possible existence of any Default or Unmatured Default; (e) the validity,
enforceability, effectiveness, sufficiency or genuineness of any Loan Document
or any other instrument or writing furnished in connection therewith; (f) the
value, sufficiency, creation, perfection or priority of any Lien in any
collateral security; or (g) the financial condition of any Borrower or any
guarantor of any of the Obligations or of any of the Borrower's or any such
guarantor's respective Subsidiaries. The Agent shall have no duty to disclose to
the Lenders information that is not required to be furnished by the Borrower to
the Agent at such time, but is voluntarily furnished by the Borrowers to the
Agent (either in its capacity as Agent or in its individual capacity).
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11.5 ACTION ON INSTRUCTIONS OF LENDERS. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, hereunder and under any
other Loan Document in accordance with written instructions signed by the
Required Lenders, and such instructions and any action taken or failure to act
pursuant thereto shall be binding on all of the Lenders. The Lenders 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
or any other Loan Document unless it shall be requested in writing to do so by
the Required Lenders. The Agent shall be fully justified in failing or refusing
to take any action hereunder and under any other Loan Document unless it shall
first be indemnified to its satisfaction by the Lenders pro rata against any and
all liability, cost and expense that it may incur by reason of taking or
continuing to take any such action.
11.6 EMPLOYMENT OF AGENTS AND COUNSEL. The Agent may execute any of its
duties as Agent hereunder and under any other Loan Document by or through
employees, agents, and attorneys-in-fact and shall not be answerable to the
Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Agent shall be entitled to advice of
counsel concerning the contractual arrangement between the Agent and the Lenders
and all matters pertaining to the Agent's duties hereunder and under any other
Loan Document.
11.7 RELIANCE ON DOCUMENTS; COUNSEL. The Agent shall be entitled to
rely upon any Note, notice, consent, certificate, affidavit, letter, telegram,
statement, paper or document believed by it to be genuine and correct and to
have been signed or sent by the proper person or persons, and, in respect to
legal matters, upon the opinion of counsel selected by the Agent, which counsel
may be employees of the Agent.
11.8 AGENT'S REIMBURSEMENT AND INDEMNIFICATION. The Lenders agree to
reimburse and indemnify the Agent ratably in proportion to their respective
Commitments (or, if the Commitments have been terminated, in proportion to their
Commitments immediately prior to such termination) (i) for any amounts not
reimbursed by the Borrowers for which the Agent is entitled to reimbursement by
the Borrowers under the Loan Documents, (ii) for any other reasonable expenses
incurred by the Agent on behalf of the Lenders, in connection with the
preparation, execution, delivery, administration and enforcement of the Loan
Documents (including, without limitation, for any expenses incurred by the Agent
in connection with any dispute between the Agent and any Lender or between two
or more of the Lenders) and (iii) for any liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind and nature whatsoever which may be imposed on, incurred by or
asserted against the Agent in any way relating to or arising out of the Loan
Documents or any other document delivered in connection therewith or the
transactions contemplated thereby (including, without limitation, for any such
amounts incurred by or asserted against the Agent in connection with any dispute
between the Agent and any Lender or between two or more of the Lenders), or the
enforcement of any of the terms of the Loan Documents or of any such other
documents, provided that (i) no Lender shall be liable for any of the foregoing
to the extent any of the foregoing is found in a final non-appealable judgment
by a court of competent jurisdiction to have resulted from the gross negligence
or willful misconduct of the Agent and (ii) any indemnification required
pursuant to Section 3.5(vii) shall, notwithstanding the provisions of this
Section 11.8, be paid by the relevant Lender in accordance with the provisions
thereof. The obligations of the Lenders under this Section 11.8 shall survive
payment of the Obligations and termination of this Agreement.
11.9 NOTICE OF DEFAULT. The Agent shall not be deemed to have knowledge
or notice of the occurrence of any Default or Unmatured Default hereunder unless
the Agent has received written notice from a Lender or the Borrower referring to
this Agreement describing such Default or Unmatured Default
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and stating that such notice is a "notice of default". In the event that the
Agent receives such a notice, the Agent shall give prompt notice thereof to the
Lenders.
11.10 RIGHTS AS A LENDER. In the event the Agent is a Lender, the Agent
shall have the same rights and powers hereunder and under any other Loan
Document with respect to its Commitment and its Loans as any Lender and may
exercise the same as though it were not the Agent, and the term "Lender" or
"Lenders" shall, at any time when the Agent is a Lender, unless the context
otherwise indicates, include the Agent in its individual capacity. The Agent and
its Affiliates may accept deposits from, lend money to, and generally engage in
any kind of trust, debt, equity or other transaction, in addition to those
contemplated by this Agreement or any other Loan Document, with the Company or
any of its Subsidiaries in which the Company or such Subsidiary is not
restricted hereby from engaging with any other Person.
11.11 LENDER CREDIT DECISION. Each Lender acknowledges that it has,
independently and without reliance upon the Agent, the Arranger or any other
Lender and based on the financial statements prepared by the Borrowers and such
other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and the other Loan
Documents. Each Lender also acknowledges that it will, independently and without
reliance upon the Agent, the Arranger or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement and the other Loan Documents.
11.12 SUCCESSOR AGENT. The Agent may resign at any time by giving
written notice thereof to the Lenders and the Company, such resignation to be
effective upon the appointment of a successor Agent or, if no successor Agent
has been appointed, forty-five days after the retiring Agent gives notice of its
intention to resign. The Agent may be removed at any time with or without cause
by written notice received by the Agent from the Required Lenders, such removal
to be effective on the date specified by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint, on
behalf of the Company and the Lenders, a successor Agent. If no successor Agent
shall have been so appointed by the Required Lenders within thirty days after
the resigning Agent's giving notice of its intention to resign, then the
resigning Agent may appoint, on behalf of the Company and the Lenders, a
successor Agent. Notwithstanding the previous sentence, the Agent may at any
time without the consent of the Company or any Lender, appoint any of its
Affiliates which is a commercial bank as a successor Agent hereunder. If the
Agent has resigned or been removed and no successor Agent has been appointed,
the Lenders may perform all the duties of the Agent hereunder and the Borrowers
shall make all payments in respect of the Obligations to the applicable Lender
and for all other purposes shall deal directly with the Lenders. No successor
Agent shall be deemed to be appointed hereunder until such successor Agent has
accepted the appointment. Any such successor Agent shall be a commercial bank
having capital and retained earnings of at least $100,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the resigning or removed Agent. Upon
the effectiveness of the resignation or removal of the Agent, the resigning or
removed Agent shall be discharged from its duties and obligations hereunder and
under the Loan Documents. After the effectiveness of the resignation or removal
of an Agent, the provisions of this Article X shall continue in effect for the
benefit of such Agent in respect of any actions taken or omitted to be taken by
it while it was acting as the Agent hereunder and under the other Loan
Documents. In the event that there is a successor to the Agent by merger, or the
Agent assigns its duties and obligations to an Affiliate pursuant to this
Section 11.12, then the term "Corporate Base Rate" as used in this Agreement
shall mean the prime rate, base rate or other analogous rate of the new Agent.
56
<PAGE> 57
11.13 AGENT'S FEE. The Company agrees to pay to the Agent, for its own
account, the fees agreed to by the Company and the Agent pursuant to that
certain letter agreement dated February 19, 1999, or as otherwise agreed from
time to time.
11.14 DELEGATION TO AFFILIATES. The Company and the Lenders agree that
the Agent may delegate any of its duties under this Agreement to any of its
Affiliates. Any such Affiliate (and such Affiliate's directors, officers, agents
and employees) which performs duties in connection with this Agreement shall be
entitled to the same benefits of the indemnification, waiver and other
protective provisions to which the Agent is entitled under Articles IX and X.
ARTICLE XII.
SETOFF; RATABLE PAYMENTS
------------------------
12.1 SETOFF. In addition to, and without limitation of, any rights of
the Lenders under applicable law, if any Borrower becomes insolvent, however
evidenced, or any Default occurs, any and all deposits (including all account
balances, whether provisional or final and whether or not collected or
available) and any other Indebtedness at any time held or owing by any Lender or
any Affiliate of any Lender to or for the credit or account of any Borrower may
be offset and applied toward the payment of the Obligations owing to such
Lender, whether or not the Obligations, or any part hereof, shall then be due.
12.2 RATABLE PAYMENTS. If any Lender, whether by setoff or otherwise,
has payment made to it upon its Outstanding Credit Exposure (other than payments
received pursuant to Section 3.1, 3.2, 3.4 or 3.5) in a greater proportion than
that received by any other Lender, such Lender agrees, promptly upon demand, to
purchase a portion of the Aggregate Outstanding Credit Exposure held by the
other Lenders so that after such purchase each Lender will hold its Pro Rata
Share of the Aggregate Outstanding Credit Exposure. If any Lender, whether in
connection with setoff or amounts which might be subject to setoff or otherwise,
receives collateral or other protection for its Obligations or such amounts
which may be subject to setoff, such Lender agrees, promptly upon demand, to
take such action necessary such that all Lenders share in the benefits of such
collateral ratably in proportion to their respective Pro Rata Shares of the
Aggregate Outstanding Credit Exposure. In case any such payment is disturbed by
legal process, or otherwise, appropriate further adjustments shall be made.
ARTICLE XIII.
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
-------------------------------------------------
13.1 SUCCESSORS AND ASSIGNS. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrowers and
the Lenders and their respective successors and assigns, except that (i) the
Borrowers shall not have the right to assign their rights or obligations under
the Loan Documents and (ii) any assignment by any Lender must be made in
compliance with Section 13.3. Notwithstanding clause (ii) of this Section, any
Lender may at any time, without the consent of the Borrowers or the Agent,
assign all or any portion of its rights under this Agreement and any Note to a
Federal Reserve Bank; provided, however, that no such assignment to a Federal
Reserve Bank shall release the transferor Lender from its obligations hereunder.
The Agent may treat the Person which made any Loan or which holds any Note as
the owner thereof for all purposes hereof unless and until such Person complies
with Section 13.3 in the case of an assignment thereof or, in the case of any
other transfer, a written notice of the transfer is filed with the Agent. Any
assignee or transferee of the
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<PAGE> 58
rights to any Loan or any Note agrees by acceptance of such transfer or
assignment to be bound by all the terms and provisions of the Loan Documents.
Any request, authority or consent of any Person, who at the time of making such
request or giving such authority or consent is the owner of the rights to any
Loan (whether or not a Note has been issued in evidence thereof), shall be
conclusive and binding on any subsequent holder, transferee or assignee of the
rights to such Loan.
13.2 PARTICIPATIONS.
13.2.1. PERMITTED PARTICIPANTS; EFFECT. Any Lender may, in the
ordinary course of its business and in accordance with applicable law, at any
time sell to one or more banks or other entities ("Participants") participating
interests in any Outstanding Credit Exposure owing to such Lender, any Note held
by such Lender, any Commitment of such Lender or any other interest of such
Lender under the Loan Documents. In the event of any such sale by a Lender of
participating interests to a Participant, such Lender's obligations under the
Loan Documents shall remain unchanged, such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
such Lender shall remain the owner of its Outstanding Credit Exposure and the
holder of any Note issued to it in evidence thereof for all purposes under the
Loan Documents, all amounts payable by the Borrowers under this Agreement shall
be determined as if such Lender had not sold such participating interests, and
the Borrowers and the Agent shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under the Loan
Documents.
13.2.2. VOTING RIGHTS. Each Lender shall retain the sole right to
approve, without the consent of any Participant, any amendment, modification or
waiver of any provision of the Loan Documents other than any amendment,
modification or waiver with respect to any Credit Extension or Commitment in
which such Participant has an interest which forgives principal, interest, fees
or any Reimbursement Obligation or reduces the interest rate or fees payable
with respect to any such Credit Extension or Commitment, extends the Facility
Termination Date, postpones any date fixed for any regularly-scheduled payment
of principal of or interest on any Loan in which such Participant has an
interest, or any regularly scheduled payment of fees on any such Credit
Extension or Commitment, releases any guarantor of any such Credit Extension or
releases any collateral held in the Facility LC Collateral Account (except in
accordance with the terms hereof) or all or substantially all of any other
collateral, if any, securing any such Credit Extension.
13.2.3. BENEFIT OF SETOFF. Each Borrower agrees that each
Participant shall be deemed to have the right of setoff provided in Section 12.1
in respect of its participating interest in amounts owing under the Loan
Documents to the same extent as if the amount of its participating interest were
owing directly to it as a Lender under the Loan Documents, provided that each
Lender shall retain the right of setoff provided in Section 12.1 with respect to
the amount of participating interests sold to each Participant. The Lenders
agree to share with each Participant, and each Participant, by exercising the
right of setoff provided in Section 12.1, agrees to share with each Lender, any
amount received pursuant to the exercise of its right of setoff, such amounts to
be shared in accordance with Section 12.2 as if each Participant were a Lender.
13.3 ASSIGNMENTS.
13.3.1. PERMITTED ASSIGNMENTS. Any Lender may, in the ordinary
course of its business and in accordance with applicable law, at any time assign
to one or more banks or other entities ("Purchasers") all or any part of its
rights and obligations under the Loan Documents. Such assignment shall be
substantially in the form of Exhibit F or in such other form as may be agreed to
by the parties thereto. The consent of the Company and the Agent shall be
required prior to an assignment becoming effective with respect to a Purchaser
which is not a Lender or an Affiliate thereof; provided, however, that
58
<PAGE> 59
if a Default has occurred and is continuing, the consent of the Company shall
not be required. Such consent shall not be unreasonably withheld or delayed.
Each such assignment with respect to a Purchaser which is not a Lender or an
Affiliate thereof shall (unless each of the Company and the Agent otherwise
consents) be in an amount not less than the lesser of (i) $5,000,000 and in
integral multiples of $1,000,000 thereafter, or (ii) the remaining amount of the
assigning Lender's Commitment (calculated as at the date of such assignment) or
outstanding Loans (if the applicable Commitment has been terminated).
13.3.2. EFFECT; EFFECTIVE DATE. Upon (i) delivery to the Agent of
an assignment, together with any consents required by Section 12.3.1, and (ii)
payment of a $3,500 fee to the Agent for processing such assignment (unless such
fee is waived by the Agent), such assignment shall become effective on the
effective date specified in such assignment. The assignment shall contain a
representation by the Purchaser to the effect that none of the consideration
used to make the purchase of the Commitment and Outstanding Credit Exposure
under the applicable assignment agreement constitutes "plan assets" as defined
under ERISA and that the rights and interests of the Purchaser in and under the
Loan Documents will not be "plan assets" under ERISA. On and after the effective
date of such assignment, such Purchaser shall for all purposes be a Lender party
to this Agreement and any other Loan Document executed by or on behalf of the
Lenders and shall have all the rights and obligations of a Lender under the Loan
Documents, to the same extent as if it were an original party hereto, and no
further consent or action by the Company, the Lenders or the Agent shall be
required to release the transferor Lender with respect to the percentage of the
Aggregate Commitment and Outstanding Credit Exposure assigned to such Purchaser.
Upon the consummation of any assignment to a Purchaser pursuant to this Section
13.3.2, the transferor Lender, the Agent and the Company shall, if the
transferor Lender or the Purchaser desires that its Loans be evidenced by Notes,
make appropriate arrangements so that new Notes or, as appropriate, replacement
Notes are issued to such transferor Lender and new Notes or, as appropriate,
replacement Notes, are issued to such Purchaser, in each case in principal
amounts reflecting their respective Commitments, as adjusted pursuant to such
assignment.
13.4 DISSEMINATION OF INFORMATION. The Borrower authorizes each Lender
to disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "Transferee") and any
prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of the Company and its Subsidiaries, including
without limitation any information contained in any Reports; provided that each
Transferee and prospective Transferee agrees to be bound by Section 10.11 of
this Agreement.
13.5 TAX TREATMENT. If any interest in any Loan Document is transferred
to any Transferee which is organized under the laws of any jurisdiction other
than the United States or any State thereof, the transferor Lender shall cause
such Transferee, concurrently with the effectiveness of such transfer, to comply
with the provisions of Section 3.5(iv).
ARTICLE XIV.
NOTICES
-------
14.1 NOTICES. Except as otherwise permitted by Section 2.14 with
respect to borrowing notices, all notices, requests and other communications to
any party hereunder shall be in writing (including electronic transmission,
facsimile transmission or similar writing) and shall be given to such party: (x)
in the case of the Borrowers or the Agent, at its address or facsimile number
set forth on the signature pages hereof, (y) in the case of any Lender, at its
address or facsimile number set forth in its administrative questionnaire, or
(z) in the case of any party, at such other address or facsimile number as such
party may hereafter specify for the purpose by notice to the Agent and the
Borrower in accordance
59
<PAGE> 60
with the provisions of this Section 14.1. Each such notice, request or other
communication shall be effective (i) if given by facsimile transmission, when
transmitted to the facsimile number specified in this Section and confirmation
of receipt is received, (ii) if given by mail, 72 hours after such communication
is deposited in the mails with first class postage prepaid, addressed as
aforesaid, or (iii) if given by any other means, when delivered (or, in the case
of electronic transmission, received) at the address specified in this Section;
provided that notices to the Agent under Article II shall not be effective until
received.
14.2 CHANGE OF ADDRESS. The Borrower, the Agent and any Lender may each
change the address for service of notice upon it by a notice in writing to the
other parties hereto.
ARTICLE XV.
COUNTERPARTS
------------
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by the Borrowers, the
Agent, the LC Issuer and the Lenders and each party has notified the Agent by
facsimile transmission or telephone that it has taken such action.
ARTICLE XVI.
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
------------------------------------------------------------
16.1 CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF MICHIGAN.
16.2 WAIVER OF JURY TRIAL. THE BORROWER, THE AGENT, THE LC ISSUER AND
EACH LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR
OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN
DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
16.3 SUBMISSION TO JURISDICTION; WAIVERS.
(a) Each Borrower hereby irrevocably and unconditionally:
(i) submits for itself and its property in any legal action
or proceeding relating to this Agreement and the other
Loan Documents to which it is a party, or for
recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of
any United States federal or Michigan state court
sitting in Detroit, Michigan and appellate courts from
any thereof;
(ii) consents that any such action or proceeding may be
brought in such courts and waives any objection that it
may now or hereafter have to the
60
<PAGE> 61
venue of any such action or proceeding in any such court
or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the
same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by
registered or certified mail (or any substantially
similar form of mail), postage prepaid, to the Company
or such Foreign Subsidiary Borrower, as the case may be,
at the address specified in Section 14.1, or at such
other address of which the Agent shall have been
notified pursuant thereto;
(iv) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted
by law or shall limit the right to sue in any other
jurisdiction; and
(v) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal
action or proceeding referred to in this subsection any
special, exemplary, punitive or consequential damages.
(b) Each Foreign Subsidiary Borrower hereby irrevocably appoints the
Company as its agent for service of process in any proceeding referred to in
Section 16.3(i) and agrees that service of process in any such proceeding may be
made by mailing or delivering a copy thereof to it care of Company at its
address for notices set forth in Section 14.1.
16.4 ACKNOWLEDGMENTS. Each Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution
and delivery of this Agreement and the other Loan Documents;
(b) none of the Agent or any Lender has any fiduciary relationship
with or duty to such Borrower arising out of or in connection with this
Agreement or any of the other Loan Documents, and the relationship between the
Agent and the Lenders, on the one hand, and the Borrowers, on the other hand, in
connection herewith or therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated hereby
among the Lenders or among the Borrowers and the Lenders.
16.5 POWER OF ATTORNEY. Each Foreign Subsidiary Borrower hereby grants
to the Company an irrevocable power of attorney to act as its attorney-in-fact
with regard to matters relating to this Agreement and each other Loan Document,
including, without limitation, execution and delivery of any amendments,
supplements, waivers or other modifications hereto or thereto, receipt of any
notices hereunder or thereunder and receipt of service of process in connection
herewith or therewith. Each Foreign Subsidiary Borrower hereby explicitly
acknowledges that the Agent and each Lender have executed and delivered this
Agreement and each other Loan Document to which it is a party, and has performed
its obligations under this Agreement and each other Loan Document to which it is
a party, in reliance upon the irrevocable grant of such power of attorney
pursuant to this subsection. The power of attorney granted by each Foreign
Subsidiary Borrower hereunder is coupled with an interest.
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<PAGE> 62
16.6 JUDGMENT.
(a) If for the purpose of obtaining judgment in any court it is
necessary to convert a sum due hereunder in one currency into another currency,
the parties hereto agree, to the fullest extent that they may effectively do so,
under applicable law that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Agent could purchase the first
currency with such other currency in the city in which it normally conducts its
foreign exchange operation for the first currency on the Business Day preceding
the day on which final judgment is given.
(b) The obligation of each Borrower in respect of any sum due from
it to any Lender hereunder shall, notwithstanding any judgment in a currency
(the "JUDGMENT CURRENCY") other than that in which such sum is denominated in
accordance with the applicable provisions of this Agreement (the "AGREEMENT
CURRENCY"), be discharged only to the extent that on the Business Day following
receipt by such Lender of any sum adjudged to be so due in the Judgment Currency
such Lender may in accordance with normal banking procedures purchase the
Agreement Currency with the Judgment Currency; if the amount of Agreement
Currency so purchased is less than the sum originally due to such Lender in the
Agreement Currency, such Borrower agrees notwithstanding any such judgment to
indemnify such Lender against such loss, and if the amount of the Agreement
Currency so purchased exceeds the sum originally due to any Lender, such Lender
agrees to remit to such Borrower such excess.
62
<PAGE> 63
IN WITNESS WHEREOF, the Borrower, the Lenders, the LC Issuer and the
Agent have executed this Agreement as of the date first above written.
CORRPRO COMPANIES, INC.
By:______________________________
Its:__________________________
Address:
_________________________________
_________________________________
Attention:_______________________
Telephone:_______________________
Fax:_____________________________
CORRPRO CANADA HOLDINGS INC.
By:______________________________
Its:__________________________
Address:
_________________________________
_________________________________
Attention:_______________________
Telephone:_______________________
Fax:_____________________________
CROSSCO (389) LTD.
By:______________________________
Its:_________________________
Address:
_________________________________
_________________________________
Attention:_______________________
Telephone:_______________________
Fax:_____________________________
63
<PAGE> 64
NBD BANK,
as LC Issuer. as Agent and individually as a Lender
By:________________________________________________
Its:____________________________________________
Address:
611 Woodward Avenue
Detroit, Michigan 48226
Attention:_________________________________________
Telephone:_________________________________________
Fax:_______________________________________________
64
<PAGE> 1
Exhibit 21.1
SUBSIDIARIES OF THE COMPANY
<TABLE>
<CAPTION>
Subsidiary State / Country of Incorporation
<S> <C>
Corrpro Companies, Inc. - Parent Company Ohio
Harco Pacific Technologies Pte. Ltd. Singapore
Corrpro Canada Holdings, Inc. Canada
Corrpro Companies Australia Pty Ltd. NSW Australia
CSI Coating Systems Canada
Harco Arabia Ground Electrode Mfg. Co. Saudi Arabia
Harco Arabia C.P. Protection Co. Ltd Saudi Arabia
GoodAll Electric, Inc. Ohio
Corrpro Companies Engineering Ltd. In Liquidation
Harcotec de Mexico S.A. DE C.V. Mexico
CCI Trading, Inc. FSC Barbados
Commonwealth Seager Holdings Ltd. Canada
Corrpro Canada (OPCO) Canada
Oilfield Electronics Canada
D. Foley Pipeline Services Ltd. Canada
Alcoke - General Casting Canada
Commonwealth Pipeline, Inc. Delaware
Corrosion Interventions, Ltd. Canada
Bass Software Inc. Texas
Bass Trigon Software Inc. Colorado
Wilson Walton Group Ltd. United Kingdom
Basco Limited United Kingdom
Basco Actel, Inc. Texas
Bosford Anode Supply Co. Ltd. United Kingdom
Corrpro Companies Asia Pacific Pte. Ltd. Singapore
Activated Titanium Electrodes Ltd. United Kingdom
Wilson Walton Overseas (Holdings) Ltd. United Kingdom
Wilson Walton Europe SA 80% Belgium
Wilson Walton Anti Corrosivos Ltd. Portugal
Corrpro Companies Europe (UK) Ltd. United Kingdom
Wilson Walton (Gulf) Ltd. Jersey
Corrpro Companies Far East Ltd. Hong Kong
PT Wilson Walton Indonesia Indonesia
Corrpro Companies Asia Pacific Sdn Bnd. Malaysia
Wilson Walton Investments United Kingdom
Wilson Walton Middle East Ltd. Jersey
Cathodic Protection Services Company Delaware
Corrpro Companies (UK) Ltd. United Kingdom
Ocean City Research New Jersey
CCFC, Inc. Nevada
</TABLE>
<PAGE> 2
<TABLE>
<CAPTION>
<S> <C>
Corrpro Companies Control India (P) Ltd. India
Corrpro Companies Middle East U.A.E.
Rohrback Casasco Systems, Inc. California
Rohrback Casasco Systems United Kingdom
</TABLE>
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Corrpro Companies, Inc.
We consent to incorporation by reference in the registration statement (No.
333-38767) on Form S-8 of Corrpro Companies, Inc. of our report dated May 10,
1999, relating to the consolidated balance sheets of Corrpro Companies, Inc. and
subsidiaries as of March 31, 1999 and 1998, and the related consolidated
statements of income, shareholders' equity, and cash flows for the years then
ended, which report appears in the March 31, 1999 Annual Report on Form 10-K of
Corrpro Companies, Inc.
KPMG LLP
Cleveland, Ohio
June 1, 1999
<TABLE> <S> <C>
<ARTICLE> 5
<CIK> 0000907072
<NAME> CORRPRO COMPANIES, INC.
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> MAR-31-1999
<PERIOD-START> APR-1-1998
<PERIOD-END> MAR-31-1999
<CASH> 3,957
<SECURITIES> 0
<RECEIVABLES> 49,735
<ALLOWANCES> (2,503)
<INVENTORY> 27,518
<CURRENT-ASSETS> 85,977
<PP&E> 24,478
<DEPRECIATION> (10,057)
<TOTAL-ASSETS> 147,595
<CURRENT-LIABILITIES> 26,933
<BONDS> 60,864
0
0
<COMMON> 2,255
<OTHER-SE> 55,801
<TOTAL-LIABILITY-AND-EQUITY> 147,595
<SALES> 188,690
<TOTAL-REVENUES> 188,690
<CGS> 128,761
<TOTAL-COSTS> 41,875
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 3,896
<INCOME-PRETAX> 14,158
<INCOME-TAX> 5,663
<INCOME-CONTINUING> 8,495
<DISCONTINUED> (3,998)
<EXTRAORDINARY> (246)
<CHANGES> 0
<NET-INCOME> 4,251
<EPS-BASIC> 0.54
<EPS-DILUTED> 0.52
</TABLE>
