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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
(X) ANNUAL REPORT PURSUANT TO SECTION 13 OR SECTION 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934 FOR THE FISCAL YEAR ENDED JANUARY 2, 1999
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR SECTION 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934
Commission file number 0-21577
WILD OATS MARKETS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 84-1100630
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
3375 MITCHELL LANE
BOULDER, COLORADO 80301
(Address of principal executive offices, including zip code)
(303) 440-5220
(Registrant's telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act:
Title of Each Class
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Common Stock, $.001 par value
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes (X) No ( )
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of Registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. (X)
As of March 8, 1999, the aggregate market value of the voting stock held by non-
affiliates (as defined by the regulations of the Securities and Exchange
Commission) of the Registrant was $211,165,896, based upon the closing sale
price of such stock on such date as reported on the NASDAQ National Market. As
of March 8, 1999, the total number of shares outstanding of the Registrant's
common stock, $.001 par value, was 13,113,094 shares.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the definitive Proxy Statement for the Registrant's Annual Meeting
of Stockholders to be held on May 5, 1999, have been incorporated by reference
into Part III of this report.
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TABLE OF CONTENTS
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PART I.
Item 1. Business. 1
Item 2. Properties. 9
Item 3. Legal Proceedings. 11
Item 4. Submission of Matters to a Vote of Security Holders. 11
PART II.
Item 5. Market for Registrant's Common Equity and Related Stockholder Matters. 11
Item 6. Selected Financial Data. 12
Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations. 13
Item 7A. Quantitative and Qualitative Disclosures About Market Risk. 22
Item 8. Financial Statements and Supplementary Data. 23
Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure. 38
PART III.
Item 10. Directors and Executive Officers of the Registrant. 38
Item 11. Executive Compensation. 38
Item 12. Security Ownership of Certain Beneficial Owners and Management. 38
Item 13. Certain Relationships and Related Transactions. 38
PART IV.
Item 14. Exhibits, Financial Statement Schedules and Reports on Form 8-K. 38-40
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PART I.
ITEM 1. BUSINESS
INTRODUCTION
Wild Oats Markets, Inc. (the "Company" or "Wild Oats") is the second largest
natural foods supermarket chain in North America. As of March 8, 1999, the
Company operated 67 stores under the names "Wild Oats Community Market,"
"Alfalfa's Market," "Beans, Grains & Things," "Ideal Market," "Oasis Fine
Foods," "Sunshine Grocery" and "Uptown Whole Foods" in 18 states: Arizona,
Arkansas, California, Colorado, Florida, Illinois, Indiana, Kansas, Missouri,
Nevada, New Jersey, New Mexico, New York, Ohio, Oregon, Tennessee, Texas and
Utah and under the name "Capers Whole Foods Markets" in British Columbia,
Canada. The Company is dedicated to providing a broad selection of high quality
natural and gourmet foods and related products at competitive prices in an
inviting and educational store environment emphasizing customer service. The
Company's stores range in size from 5,000 to 35,000 square feet and feature
natural alternatives in virtually every product category found in conventional
supermarkets, providing consumers with a one-stop, full-service shopping
alternative to both conventional supermarkets and traditional health food
stores.
Since acquiring its first natural foods store in 1987, Wild Oats has pursued
an aggressive growth strategy. The Company has grown from 14 natural foods
stores at the end of 1994 to 63 stores in 18 states and Canada at the end of
1998, representing a compound annual growth rate of 46%. The Company's sales
increased from $98.5 million in 1994 to $398.9 million in 1998, representing a
compound annual growth rate of 42%.
The Company's growth has been driven by the acquisition of independent and
small chain natural foods store operators, the opening of new stores and
positive comparable store sales growth. In 1998, Wild Oats acquired seven
stores, opened eight new stores, relocated two stores and sold two small stores.
The Company also closed two stores with planned relocations in 1999. As a result
of the Company's aggressive growth, the Company has increased its penetration of
existing markets, entered new geographic markets and created a stronger platform
for future growth. During 1998, the Company successfully entered a number of new
regions, including Arkansas, Indiana, New Jersey, New York, Ohio and Texas. The
Company believes its growth has resulted in operating efficiencies created by:
(i) warehousing, distribution and administrative economies of scale; (ii)
improved merchandise buying terms as a result of the Company's larger size;
(iii) coordinated merchandising and marketing strategies; (iv) stringent
centralized control over store expenses, such as labor costs; and (v) continuous
identification and implementation of best industry operating practices.
NATURAL FOODS INDUSTRY
Natural foods are defined as foods which are minimally processed, free of
artificial ingredients, preservatives and other non-naturally occurring
chemicals and, in general, are as near to their whole, natural state as
possible. Most natural products fall into the food category, but the natural
foods industry also encompasses a number of other categories such as naturally-
based cosmetics, toiletries and personal care items, vitamins and herbal
supplements, natural and homeopathic medicines and naturally-based cleaning
agents. While sales growth in the traditional supermarket industry remained
relatively flat from 1992 to 1996, with a modest 3% increase in 1997, the
natural foods industry, during that same time, grew at a 23% compound annual
growth rate. According to The Natural Foods Merchandiser, a leading industry
publication, growth in the natural foods industry has accelerated from sales of
$5.3 billion in 1992 to sales of $14.8 billion in 1997. The Company believes
that this growth reflects a broadening of the natural foods consumer base which
is being propelled by several factors, including healthier eating patterns,
increasing concern regarding food purity and safety, and greater environmental
awareness. While natural products generally have higher costs of production and
correspondingly higher retail prices, the Company believes that a growing
segment of the population now attributes added value to high quality natural
products and is willing to pay a premium for such products. Further, according
to industry data, the natural foods industry comprises less than 3% of the total
supermarket industry, allowing for significant potential to continue to expand
the customer base.
Traditional natural foods stores, offering only vitamins, dietary supplements,
herbs and a limited selection of natural foods product lines, first emerged over
50 years ago. Over the years, as consumer demand for natural
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foods has increased, the number of natural foods stores has grown and the
product mix has expanded. More distributors and vendors have entered the natural
foods industry, and many more natural products have become available. In
response to increasing supply and demand, larger format natural foods stores
have emerged, offering virtually every product category found in a conventional
supermarket, including grocery, produce, meat, poultry, seafood, dairy, frozen,
deli, bakery, health and body care and household items. Today, natural foods
stores offer a one-stop, full-service grocery shopping alternative to
conventional supermarkets and appeal to a broader, more mainstream customer base
than the traditional natural foods store. In response to consumer demand,
conventional grocery stores in certain regions of the country have increased
their natural food and organic produce offerings, as well as their selection of
vitamins and supplements.
The Company believes that the appeal of natural foods supermarkets is based on
the quality of the total shopping experience. Many natural foods stores develop
a personal relationship with their customers because there is typically more
interaction between the customer and the store staff than in a conventional
supermarket. The Company believes that conventional supermarkets historically
have had only limited success in competing in the natural foods segment because
they are largely dependent on national brands. As a result, while conventional
supermarkets may carry a limited selection of natural foods products, it is
difficult for them to duplicate the full inventory of natural foods stores which
carry a more comprehensive selection of natural products sourced from a large
number of independent vendors.
The natural foods industry is highly fragmented. According to The Natural
Foods Merchandiser, there were more than 12,800 retailers of natural products in
1997, of which only 685 stores were over 6,000 square feet in size. The Company
believes that Wild Oats and its largest competitor represented approximately 10%
of the total natural foods dollars spent by consumers in 1997. There has been
considerable consolidation in the industry as natural foods supermarket chains
have acquired smaller independent competitors. The Company believes natural
foods supermarkets, with their extensive product offerings and broad customer
appeal, will continue to lead the overall growth and consolidation in the
natural foods industry.
OPERATING STRATEGY
The Company's objective is to become the grocery store of choice both for
natural foods shoppers and quality-conscious consumers in each of its markets by
emphasizing the following key elements of its operating strategy:
Destination Format. The Company's stores are one-stop, full-service
supermarkets for customers seeking high-quality natural and gourmet foods and
related products. In most of its stores, the Company offers between 10,000 and
25,000 stock-keeping units ("SKUs") of natural products in virtually every
product category found in a conventional supermarket. The Company's stores
carry a much broader selection of natural and gourmet foods and related products
than those offered by typical independent natural foods stores or conventional
supermarkets.
High-Quality, Unique Products. The Company seeks to offer the highest quality
products throughout its merchandise categories and emphasizes unique products
and brands not typically found in conventional supermarkets. The Company's
strict quality standards require products to be minimally processed, free of
preservatives, artificial colors and chemical additives, and not tested on
animals. Each store tailors its product mix to meet the preference of the local
market, in particular, sourcing produce from local organic growers whenever
possible. The Company also operates regional commissary kitchens and bakeries
that provide its stores with fresh bakery items and a unique assortment of
prepared foods for the quality- and health-conscious consumer.
Educational and Entertaining Store Environment. At Wild Oats, shopping is
"theater." The Company strives to create a fun, friendly and educational
environment that makes grocery shopping enjoyable and encourages shoppers to
spend more time in the store and to purchase new products. In order to enhance
customers' understanding of natural foods and how to prepare them, the Company
trains its store staff to educate customers as to the benefits and quality of
its products and prominently features educational brochures and newsletters as
well as an in-store consumer information department. In addition, many stores
offer cafe seating areas, espresso and fresh juice bars, and in-store massage
therapists, all of which emphasize the comfortable, relaxed nature of the
shopping experience. The Company believes its knowledgeable store staff and
high ratio of store staff to customers results in significantly higher levels of
customer service than in a conventional supermarket.
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Extensive Community Involvement. The Company seeks to engender customer
loyalty by demonstrating its high degree of commitment to the local community.
Each store makes significant monetary and in-kind contributions to local not-
for-profit organizations through programs such as "5% Days," where a store may
donate 5% of its gross sales one day in a given month to a local not-for-profit
group, and a "Charity Work Benefit" where the Company pays employees for time
spent working for local charities.
Flexible Store Format. The Company's flexible store format enables it to
customize its stores to specific site characteristics and to meet the unique
needs of a variety of markets. The Company's supermarket format stores are
adapted in size and product selection to suburban markets and its urban format
stores are designed to appeal in size and product selection to more densely
populated urban markets. The Company believes that this flexible store format
strategy allows it to operate successfully in diverse markets, enabling it to
reach a broader customer base and increase market penetration.
Competitive Pricing. The Company seeks to offer products at prices which are
at or below those of other natural foods stores. The Company has implemented a
competitive price program designed to ensure that high quality, all natural
items in each product category are offered at prices that are competitive with
those offered on similar items in conventional supermarkets. The Company also
introduced its "Wild Shopper Card" program under which the customer receives
additional discounts on selected items when his/her card is presented at the
register. The Company believes these pricing programs broaden its consumer
appeal and encourage its customers to fill more of their shopping needs at the
Company's stores.
Motivated Staff. The Company has developed a unique culture by encouraging
active participation and communication among all staff members, advocating
store-level participation in a variety of marketing, merchandising and operating
decisions, and rewarding staff based upon the achievement of targeted store-
level sales and other financial performance criteria. In addition, the Company
generally hires individuals dedicated to the concept of natural foods and a
healthy lifestyle. The Company believes that these practices translate into a
satisfied and motivated staff and a high level of customer service.
GROWTH STRATEGY
The Company has grown from 14 natural foods stores at the end of 1994 to 67
stores in 18 states and Canada as of March 8, 1999. The Company's growth
strategy is to increase sales and income through: (i) new store expansion; (ii)
acquisitions of existing compatible stores; and (iii) increased sales at
existing stores.
In fiscal 1999, the Company has acquired three stores and relocated two stores
as of March 8, 1999. The Company plans to open or acquire as many as nine
additional stores and relocate two more existing stores in 1999. The Company
intends to continue its expansion strategy by increasing penetration in existing
markets and expanding into new regions which it believes are currently
underserved by natural foods retailers. While the Company believes that most of
its new store expansion will result from new store openings, it continues to
evaluate acquisition opportunities in both existing and new markets.
The Company currently has leases signed or property acquired for 11 new or
relocated stores projected to be opened in fiscal 1999, and has leases signed
for five stores projected to be opened in fiscal 2000, as follows:
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PROJECTED PROJECTED
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SITE NAME OPENING DATE SITE NAME OPENING DATE
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1. Albuquerque, NM 1999 9. Tulsa, OK 1999
2. Evanston, IL 1999 10. West Hartford, CT 1999
3. Ft. Collins, CO* 1999 11. Westport, CT 1999
4. Henderson, NV 1999 12. Long Beach, CA 2000
5. Hinsdale, IL 1999 13. Norwood, OH 2000
6. Madison, NJ 1999 14. Overland Park, KS 2000
7. Phoenix, AZ 1999 15. St. Louis, MO 2000
8. Salt Lake City, UT* 1999 16. St. Louis, MO 2000
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*Relocation
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New Store Expansion. In fiscal 1998, the Company opened eight new stores in
Westminster, Colorado; Pinecrest and Miami Beach, Florida; Princeton, New
Jersey; Santa Monica, California; Dallas, Texas; Las Vegas, Nevada and
Indianapolis, Indiana and relocated stores in Columbus, Ohio and Denver,
Colorado. In 1998, the Company closed one small store in Ft. Collins, Colorado
in preparation for the consolidation and relocation to a new Ft. Collins store
during 1999, and sold two small stores in Vail and Boulder, Colorado. In January
1999, the Company also relocated two stores in Phoenix, Arizona and Memphis,
Tennessee.
Acquisitions of Existing Compatible Stores. During fiscal 1998, the Company
acquired seven natural foods stores in Boulder, Colorado; Little Rock, Arkansas;
Nashville, Tennessee; New York, New York; Santa Barbara, California; Victoria,
British Columbia, Canada; and Columbus, Ohio (which was subsequently relocated).
In February 1999, the Company acquired three natural foods stores in Tucson,
Arizona.
Increased Sales at Existing Stores. The Company believes that historical
growth in sales at its existing stores reflects continued strong growth in the
natural foods industry as well as improved execution of the Company's operating
strategy. The Company continually seeks to increase sales at its existing stores
and has undertaken several initiatives designed to increase comparable store
sales. The Company is seeking to attract new customers, generate repeat
business, and gradually increase the size of the average transaction by
introducing, expanding and improving key merchandise categories such as
perishables (produce, prepared foods and meat and seafood) and private label
products, as well as implementing expanded marketing programs and expanding
customer service.
SITE SELECTION AND STORE FORMAT
Prior to opening or acquiring a store, the Company analyzes the local market,
including: (i) certain demographic data, such as educational levels, average
income, population density and age distribution; (ii) certain lifestyle data,
such as the levels of cultural awareness, physical exercise, health
consciousness and environmental awareness in the community; and (iii) the
existing competition. In addition to performing internal market analysis, the
Company occasionally engages an outside consultant to conduct additional market
studies and validate internal sales forecasts. The Company's flexible strategy
allows it to open stores in a variety of locations and adapt its store layout
and merchandise selection to accommodate specific site characteristics, regional
themes and local cultural traditions. The Company seeks locations of
approximately 15,000 to 35,000 square feet for its supermarket format stores and
generally seeks to be either an anchor tenant in a regional neighborhood
shopping center or a stand-alone store with high visibility, easy access and
plenty of parking. The Company seeks locations of approximately 5,000 to 15,000
square feet for urban format stores and generally seeks to be in the commercial
district of densely populated residential areas with convenient parking and a
high level of foot traffic.
When the Company acquires a store, it remodels the store in accordance with
the Company's specifications. These acquired stores remain in operation while
they are being remodeled and, if the stores are to be renamed "Wild Oats
Community Market," they are not renamed until the remodeling is completed. The
timing and cost of the remodel of each store varies depending on the location of
the store, whether it is in a new or existing market for the Company, the size
of the store and the required build-out. The Company typically requires eight
to 16 weeks to remodel a store.
PRODUCTS
The Company offers its customers a broad selection of unique, high-quality
products that are natural alternatives to those found in conventional
supermarkets. The Company typically does not offer well known national brands
and focuses instead on a comprehensive selection of natural products within each
category. Although the core merchandise assortment is similar at each of the
Company's stores, individual stores adapt the product mix to reflect local and
regional preferences. Stores source produce from local organic growers whenever
possible and typically offer a variety of local products unique to the region.
In addition, in certain markets, stores may offer more food service, gourmet and
ethnic items as well as feature more value-added services such as gift baskets,
catering and home delivery, and in other markets, a store may focus more on bulk
foods, produce and staple grocery items. The Company and its stores regularly
introduce new high-quality and locally grown products in its merchandise
selection to minimize overlap with products carried by conventional
supermarkets.
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In addition, the Company intends to continue to expand and enhance its
prepared food and in-store cafe environment. The Company believes that
consumers are increasingly seeking convenient, healthy, "ready-to-eat" meals and
that, by increasing its commitment to this category, it can provide an added
service to its customers, broaden its customer base, and further differentiate
itself from conventional supermarkets and traditional natural foods stores.
Quality Standards. The Company's objective is to offer products which meet
the following standards: free of preservatives, artificial colors, chemical
additives and added hormones; organically grown, whenever possible; minimally
processed; and not tested on animals. The Company continually evaluates new
products, quality issues and controversial ingredients and frequently counsels
store managers on compliance with the Company's strict product standards.
Product Categories. The Company's stores typically feature the following
product categories:
PRODUCT CATEGORY DESCRIPTION
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Grocery Pastas, canned goods, cereals, cooking oils, juices, salad
dressings, crackers, chips, pretzels, cookies, baking
items, sodas, bottled waters, and beer and wine in
selected stores. Many products are formulated for special
diets and are identified as fat-free, low-sodium, wheat-
free or dairy-free;
Natural Living Vitamins, supplements, herbs and body care items such as
shampoos, lotions, cosmetics, deodorants, dental care
products, nutritional supplements, herbal tinctures, bulk
herbs and homeopathic remedies as well as a selection of
health-related books and magazines;
Prepared Foods Hot entrees, salads, sushi, sandwiches, pizza and pasta
which can be taken out or, in the larger stores, eaten in
the store's cafe seating area. Most stores feature full-
service delis as well as espresso and fresh juice bars;
Produce Majority of produce is organically grown, although the
availability varies, and is sourced seasonally from local
organic farmers whenever possible. All produce is clearly
labeled as to whether it was grown organically or
commercially;
Dairy/Frozen Dairy products, both organic and commercial, such as
yogurt, milk, cheese, eggs, soy milk, soy foods, and fresh
juices, and frozen products such as ice cream, frozen
yogurt, entrees, vegetables, desserts, juices, meat and
meat substitutes;
Meat/Poultry/Seafood Fresh beef, lamb, pork, seafood and free-range poultry, as
well as value-added meat products such as marinated meats
and home-made sausages;
Baked Goods Muffins, cakes, breads and pies, which are supplied by
both the Company's bakeries and outside vendors, and
signature items including a proprietary line of private
label gourmet breads;
Bulk Products Generally between 200 and 500 SKUs of bulk products,
including beans, pastas, grains, rice, coffee, granolas,
snacks, nuts, flours, seeds, dried fruits, soaps,
detergents, shampoos and conditioners; and
General Merchandise Environmentally-friendly cleaning compounds, housewares,
kitchen tools, recycled paper products and other natural
household items, as well as selected gift items, such as
natural fiber clothing, greeting cards and decorative
glassware.
Private Label. The natural foods industry is highly fragmented and
characterized by many small independent vendors. As a result, the Company
believes that its customers do not have strong loyalty to particular brands of
natural foods products. In contrast to conventional supermarkets whose private
label products are intended to be low cost alternatives to name-brand products,
the Company has developed a two-tiered private label
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program in order to build brand loyalty to specific products based on its
relationship with its customers and its reputation as a natural foods authority.
Through this program, Wild Oats has successfully introduced a number of high-
quality, unique private label products, such as chocolate bars, cereals, rice
and soy milk, gourmet breads, salsa, salad dressings, vitamins, chips, pretzels,
tortillas, juices, pasta, pasta sauces, oils, and canned fruit. The Company
intends to continue to expand its private label product offerings on a selected
basis. In 1999, the Company also intends to introduce a new, value-priced line
of private label products under the "A Wild Oats Down to Earth Value" label.
Pricing. In general, natural and gourmet foods and related products have
higher costs of production and correspondingly higher retail prices than
conventional grocery items. The Company's pricing strategy has been to maintain
prices that are at or below those of its natural foods competitors while
educating its customers as to the higher quality and added value of its products
so as to differentiate them from conventional products. Like most conventional
supermarkets, the Company regularly features dozens of sale items that are
rotated periodically. Sale items are promoted through a variety of media
including direct mail, newspaper and the Company's in-store flyers. The Company
regularly monitors the prices at its natural foods and conventional supermarket
competitors to ensure its prices remain competitive.
STORE ENVIRONMENT
At Wild Oats, shopping is "theater." Each store strives to create a fun,
friendly and educational environment that makes grocery shopping enjoyable and
encourages shoppers to spend more time in the store and to purchase new
products. In order to enhance customers' understanding of natural foods and how
to prepare them, the Company trains its store staff to educate customers as to
the benefits and quality of its products and prominently features educational
brochures and newsletters as well as an in-store consumer information
department. Product brochures, recipe card areas, food sampling stations and
informational signage are used extensively throughout the store. Most stores
offer cafe seating areas, espresso and fresh juice bars, in-store nutritional
consultants, and in-store massage therapists, all of which emphasize the
comfortable, relaxed nature of the Wild Oats shopping experience. In addition,
each store features a monthly calendar of special events such as educational
presentations, children's events, cooking classes, live music, prize drawings
and dog washes. Certain departments are remerchandised several times a year
according to seasonal themes or different marketing campaigns, such as
Rainforest Month or Organic Harvest Month. The stores also sponsor many
community-related activities such as presentations on health and safety as well
as fund-raising drives for local charitable organizations. The Company
encourages and receives feedback from its customers through its suggestion boxes
and posts responses on the stores' community bulletin board.
COMPANY CULTURE AND STORE OPERATIONS
Company Culture. The Company's culture is embodied in its "Four Areas of
Responsibility": responsibility to its customers, its staff, its community and
its bottom line. In particular, Wild Oats believes that knowledgeable,
satisfied and motivated staff members have a direct impact on store performance
and overall profitability. Wild Oats encourages active participation and open
communication among all staff members and advocates store-level participation in
a variety of marketing, merchandising and operating decisions. The Company has
made a substantial commitment to staff education and has created "Wild Oats
University", an in-house training program which consists of an intensive
orientation for new hires and mandatory monthly and quarterly education programs
for the general staff. The Company generally hires individuals dedicated to the
concept of natural foods and a healthy lifestyle and seeks to promote store-
level employees to positions of increasing responsibility.
Management and Employees. The Company's stores are organized into 10
geographic regions, each of which has a regional director who is responsible for
the store operations within his or her region and who reports to the Company's
senior management. The Company's regional directors are responsible for, and
frequently visit, their cluster of stores to monitor financial performance and
ensure adherence to the Company's operating standards. The typical staff of a
Wild Oats store consists of one store manager, ten department managers and
between 25 to 200 additional hourly staff members, the majority of whom work
full time. Store and department managers are responsible for the operations of
individual stores including recruiting and hiring store personnel, communicating
financial results nightly, coordinating merchandise ordering, distribution and
receiving, and to a limited extent, supplementing their stores' merchandise mix
with regional and other products suited for their specific market. The
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accounting department provides a detailed monthly financial analysis of every
department in each store which is reviewed by both the store and regional
directors. The Company maintains a staff of corporate level department
specialists including Natural Living, Food Service, Produce,
Meat/Poultry/Seafood and Grocery coordinators who manage centralized buying
programs and assist in store-level merchandising, pricing and staff training to
ensure Company-wide adherence to product standards and store concept.
Regional directors, store managers and store-level and home-office staff
participate in an incentive plan that ties compensation awards to the
achievement of specified store-level or company-wide sales, profitability and
other performance criteria. The Company also seeks to foster enthusiasm and
dedication in its staff members through comprehensive benefits packages
including health insurance and wellness programs as well as an employer matching
401(k) plan and equity incentive plans. In 1998, the Company introduced a new
compensation program that includes the award of incentive stock options to all
its full-time employees who have been employed with the Company for one year or
more.
PURCHASING AND DISTRIBUTION
The Company has a centralized purchasing function which sets product
standards, approves products and negotiates volume purchase discount
arrangements with distributors and vendors. Individual store purchases are
handled through its department managers who make purchasing decisions within
these established parameters. This approach enables each store to customize its
product mix to meet the needs and preferences of its customers while adhering to
the Company's established product standards and allowing each store to benefit
from the Company's volume purchasing discounts.
The wholesale segment of the natural foods industry provides a large and
growing array of product choices across the full range of grocery product
categories. Although the Company purchases products from 6,700 suppliers,
approximately 26.5% of its cost of goods and occupancy costs are derived from a
single wholesale distributor that operates multiple warehouses nationwide. The
Company believes that this distributor is able to service all of the Company's
existing stores as well as most of its future sites. As a result of its rapid
growth, the Company has been able to negotiate greater volume discounts with
this distributor and certain other vendors. In 1998, the Company entered into a
national buying agreement with its largest distributor, and the Company also is
a party to an interim buying agreement with a distributor in Vancouver, British
Columbia, Canada under which the Company is obligated to purchase certain
products from the distributor for its existing Canadian stores, provided the
purchase price is the lowest price offered from the Company's various
distributors in that region. The Company has no supply contracts with the
majority of its suppliers, and any vendor or distributor could discontinue
selling to the Company at any time. The Company has also executed favorable
regional or national purchasing agreements with the manufacturers of certain
products, such as dairy and coffee, under which the Company receives volume
discounts and other incentives to buy larger quantities of product. The Company
believes that it could develop alternative sources of supply; however, any such
termination may create a short-term disruption in store-level merchandise
selection.
Most products are delivered directly to the stores by vendors and
distributors. The Company currently operates two warehouse facilities in
Denver, Colorado and Los Angeles, California which receive and distribute truck
load purchases of produce and grocery items and distributes products that cannot
be delivered directly to the stores by outside vendors. The Company maintains a
small fleet of local delivery vans and over-the-road trucks. As the Company
enters new markets, it will review the need for additional warehouse and
distribution facilities.
The Company operates seven commissary kitchens in Santa Fe, New Mexico,
Denver, Colorado, Phoenix, Arizona, Las Vegas, Nevada, Eugene, Oregon,
Vancouver, British Columbia, Canada and Los Angeles, California, as well as a
bakery in Denver, Colorado. These facilities produce deli food, take-out food,
bakery products and certain private label items exclusively for sale in the
Company's stores. Each kitchen can make daily deliveries to stores within a
hundred mile radius of the facility. The Company intends to add new kitchens as
it expands into new markets.
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MARKETING
The Company's marketing programs are primarily focused on in-store customer
education and information. The Company believes that its customers are more
responsive to the quality of the shopping experience, issue-based marketing and
word-of-mouth advertising than to price-based marketing and traditional media
advertising. As a result, the Company focuses on consumer education and
emphasizes the benefits and quality of its products such as the fact that an
item is organic or grown locally. The Company uses a variety of media,
including in-store flyers, newspaper inserts and promotional brochures in which
it promotes the depth of its merchandise selection, benefits of natural
products, and "down to earth" competitive prices. When the Company first enters
a new market, the Company executes an intense marketing campaign to build
awareness of its new store and its selection of natural products. After the
initial campaign, this advertising is replaced by the marketing strategies
described above. In 1998, the Company launched its Internet grocery store,
"shop.wildoats.com", which offers approximately 1,000 SKUs of vitamins,
supplements and private label products for sale in the United States. The
Company intends to expand its product selections offered by its Internet store
over time.
The Company's advertising costs historically have been less than 1.5% of
sales. In 1997, the Company introduced a multifaceted annual promotional
program to its vendors which allows for different degrees of promotional
participation and commits vendors to full year marketing expenditures in
advance. In exchange for participation in the Company's promotional program,
vendors receive access to national advertising programs, detailed feedback on
volume movement (planned for 1999) and the ability for longer term production
planning.
MANAGEMENT INFORMATION SYSTEMS
The Company's management information systems have been designed to provide
detailed store-level financial data, including sales, gross margin, payroll and
store contribution, to regional directors and store managers and to the
Company's headquarters on a timely basis. Currently, certain store-level
accounting and inventory management systems are processed manually. The Company
purchased a software system to convert the store level point-of-sale and pricing
systems to one system and to track product movement, and has installed new
hardware to run such software and implement such system. The Company has
converted more than 80% of its stores to the new hardware and anticipates that
the remaining stores will be converted by the third quarter of 1999. All new
stores will be using the new hardware and system going forward. The Company is
currently implementing new, faster credit card processing systems Company-wide
to reduce transaction time at the cash register and the cost to the Company of
individual credit card transactions. The Company has designed and is in the
process of implementing a wide-area network to allow faster data transmissions
between the Company's headquarters and stores, and between the stores and the
Company's credit card processor. These new systems are expected to be fully
operational in all of the Company's stores, with the exception of the stores in
Canada, by mid-1999. In the first quarter of 1998, the Company purchased new
accounting, payroll and human resources software to improve the efficiency of
the Company's accounting and payroll systems, and in the fourth quarter, the
Company purchased a new labor scheduling and tracking system. The Company has
determined that all of its major computer systems are Year 2000 compliant and
that the cash registers being installed in the Company's stores are Year 2000
compliant. The Company has requested Year 2000 compliance certification from
its major vendors, service providers and financial institutions. The Company
does not anticipate that it will incur any material expense related to Year 2000
compliance in 1999.
COMPETITION
The Company's competitors currently include other independent and multi-unit
natural foods supermarkets, smaller traditional natural foods stores,
conventional supermarkets and specialty grocery stores. While certain
conventional supermarkets, smaller traditional natural foods stores and small
specialty stores do not offer as full a range of products as the Company, they
do compete with Wild Oats in one or more product categories. A number of other
natural foods supermarkets offer a range of natural foods products similar to
those offered in the Company's stores. The Company believes that the principal
competitive factors in the natural foods industry include customer service,
quality and variety of selection, store location and convenience, price and
store atmosphere. The Company believes that its primary competitor is Whole
Foods Market, Inc., with which the Company currently competes in Arizona,
California, Colorado, Florida, Illinois, and Texas.
8
<PAGE>
In certain regions, conventional grocery stores have greatly increased their
selection of natural foods, organic produce, vitamins and supplements, and have
remerchandised their stores to emphasize these areas. As consumer demand for
natural foods, vitamins and supplements increases, the Company expects to see
increased competition for sales of these products from conventional grocery
stores and drug stores.
EMPLOYEES
As of March 8, 1999, the Company employed 3,274 individuals full-time and
2,611 individuals part-time. Approximately 5,684 of the Company's employees are
engaged at the store-level and 201 are devoted to regional administrative and
corporate activities. The Company believes that it maintains a good
relationship with its employees. One small group of employees at one of its
acquired stores was unionized at the time of the store's acquisition and
continues to be unionized. The Company anticipates that in the future one or
more of its stores may be the subject of attempted organizational campaigns by
labor unions representing grocery industry workers, and that, from time to time,
certain of its stores may be picketed by local labor unions relating to area
wage and benefit standards.
TRADEMARKS
Wild Oats(R), and Wild Oats Community Markets(R) are federally registered
trademarks and Alfalfa's Market(TM), Oasis Fine Foods(TM), Beans, Grains and
Things(TM), Ideal Market(TM), Peoples' Market(TM), Sunshine Grocery(TM), Uptown
Whole Foods(TM) and Capers Whole Foods Market(TM) are trademarks owned by the
Company.
ITEM 2. PROPERTIES
The Company moved its corporate offices in October 1998 to an existing 29,500
square foot building in Boulder, Colorado. The lease for the corporate
headquarters expires in September 2003 and has two renewal options of three
years each. The rental payment is a fixed base rate. The Company remains
obligated on its prior corporate office lease and has sublet a portion of that
space.
The Company leases the majority of its currently operating stores. The Company
currently has leases signed or property acquired for 11 new or relocated stores
projected to be opened in 1999, and an additional five sites projected to be
opened in 2000. In 1998, the Company sold the real property underlying its
Westminster, Colorado store in a sale-leaseback transaction, and purchased
additional property in Fort Collins, Colorado to which it plans to relocate an
existing store in 1999. In 1997, the Company purchased real property in
Hinsdale, Illinois, for the construction of a store, scheduled to be opened in
the second quarter of 1999. Also in 1997, the Company acquired a ground
leasehold interest in Denver, Colorado and constructed a new store that opened
in the fourth quarter of 1998. The Company anticipates that it will sell
substantially all of the real property it currently owns under sale-leaseback
transactions, where the purchaser will lease the properties back to the Company
under market terms. The Company's leases typically provide for a 10- to 25-year
base term and generally have several renewal periods. The rental payments are
either fixed base rates or percentages of sales with minimum rentals. All of the
leases are accounted for as operating leases.
9
<PAGE>
STORE LOCATIONS
The following map and store list show, as of March 8, 1999, the number of
stores that the Company operates in each state and the cities in which the
Company's stores are located:
[MAP APPEARS HERE]
<TABLE>
<CAPTION>
ARIZONA COLORADO INDIANA OHIO
- ------- -------- ------- ----
<S> <C> <C> <C>
Phoenix Aurora Indianapolis Upper Arlington
Scottsdale Boulder (3)
Tempe Colorado Springs KANSAS OREGON
Tucson (3) Denver (3) ------ ------
Fort Collins Mission Eugene (2)
ARKANSAS Glendale
- -------- Greenwood Village MISSOURI TENNESSEE
Little Rock Lakewood -------- ---------
Littleton Kansas City Memphis (2)
CALIFORNIA Westminster St. Louis Nashville
- ----------
Berkeley FLORIDA NEVADA TEXAS
Laguna Beach ------- ------ -----
Los Angeles Boca Raton Las Vegas (3) Dallas
Mission Viejo Fort Lauderdale
Pasadena Miami Beach NEW JERSEY UTAH
Sacramento Pinecrest ---------- ----
San Anselmo West Palm Beach Princeton Salt Lake City (3)
Santa Barbara
Santa Monica (2) ILLINOIS NEW MEXICO BRITISH COLUMBIA,
Sunnyvale -------- ---------- -----------------
West Hollywood Buffalo Grove Albuquerque (2) CANADA
Santa Fe (3) ------
Vancouver (2)
NEW YORK Victoria
-------- West Vancouver
New York City
</TABLE>
10
<PAGE>
ITEM 3. LEGAL PROCEEDINGS
Alfalfa's Canada, Inc., one of the Company's Canadian subsidiaries, is a
defendant in a suit brought in the Supreme Court of British Columbia, by one of
its distributors, Waysafer Wholefoods Limited and one of its principals, seeking
monetary damages for breach of contract and injunctive relief to enforce a
buying agreement for the three Canadian stores entered into by a predecessor of
Alfalfa's Canada. Under the buying agreement, the stores must buy products
carried by the plaintiff if such are offered at the current advertised price of
its competitors. The suit was filed in September 1996. In June 1998, the Company
filed a Motion for Dismissal on the grounds that the contract in dispute
constituted a restraint of trade. The Motion was subsequently denied. The
Company does not believe its potential exposure in connection with the suit to
be material. There are no other material pending legal proceedings to which the
Company or its subsidiaries are a party. From time to time, the Company is
involved in lawsuits that the Company considers to be in the normal course of
its business.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matters were submitted to a vote of security holders during the fourth
quarter of fiscal 1998.
PART II.
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY
AND RELATED STOCKHOLDER MATTERS
The Company's common stock is traded on the NASDAQ National Market under the
symbol "OATS".
The following are the quarterly high and low sales prices (adjusted for the 3-
for-2 split described below) for each quarter of the past two years:
<TABLE>
<CAPTION>
High Low
------ ------
<S> <C> <C>
First Quarter 1997 $13.00 $ 8.58
Second Quarter 1997 19.08 9.25
Third Quarter 1997 21.00 14.75
Fourth Quarter 1997 29.00 19.33
First Quarter 1998 38.25 21.00
Second Quarter 1998 36.50 25.56
Third Quarter 1998 32.75 17.50
Fourth Quarter 1998 33.00 22.00
</TABLE>
As of March 8, 1999, the Company's common stock was held by 681 stockholders
of record. No cash dividends have been declared previously on the Company's
common stock, and the Company does not anticipate declaring a cash dividend in
the near future. On January 7, 1998, the Company effected a 3-for-2 stock split
of its common stock for securities held of record as of December 22, 1997.
11
<PAGE>
ITEM 6. SELECTED FINANCIAL DATA
(In thousands, except per-share amounts and number of stores)
The following data for the five fiscal years ended January 2, 1999, are derived
from the consolidated financial statements of the Company. The following data
should be read in conjunction with the Company's consolidated financial
statements, related notes thereto and other financial information included
elsewhere in this report on Form 10-K.
<TABLE>
<CAPTION>
FISCAL YEAR 1998 1997 1996 1995 1994
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Sales $398,857 $311,077 $192,493 $98,517 $65,219
Cost of goods sold and occupancy costs 274,780 215,156 130,957 67,164 44,637
-------- -------- -------- ------- -------
Gross profit 124,077 95,921 61,536 31,353 20,582
Direct store expenses 87,035 71,516 48,317 25,072 15,685
-------- -------- -------- ------- -------
Store contribution 37,042 24,405 13,219 6,281 4,897
Selling, general and administrative expenses 14,687 11,488 8,977 4,465 2,317
Pre-opening expenses 3,277 1,099 1,763 1,037
Non-recurring expenses (1) 393 7,035
-------- -------- -------- ------- -------
Income (loss) from operations 18,685 11,818 (4,556) 779 2,580
Interest income (expense), net 688 113 (904) (363) (373)
-------- -------- -------- ------- -------
Income (loss) before income taxes 19,373 11,931 (5,460) 416 2,207
Income tax expense (benefit) 7,725 4,895 (977) 40 880
-------- -------- -------- ------- -------
Net income (loss) 11,648 7,036 (4,483) 376 1,327
Accretion of redeemable preferred stock 2,396 1,937 484
-------- -------- -------- ------- -------
Net income (loss) allocable to common stock $ 11,648 $ 7,036 $ (6,879) $(1,561) $ 843
======== ======== ======== ======= =======
Basic net income (loss) per common share $0.90 $0.67 $(1.35) $(0.45) $0.24
======== ======== ======== ======= =======
Weighted average number of common shares outstanding 12,967 10,568 5,078 3,483 3,534
======== ======== ======== ======= =======
Diluted net income (loss) per common share $0.87 $0.64 $(1.35) $(0.45) $0.24
======== ======== ======== ======= =======
Weighted average number of common shares outstanding 13,393 10,957 5,078 3,483 3,552
======== ======== ======== ======= =======
Number of stores at end of period 63 52 40 21 14
BALANCE SHEET DATA:
Working capital (deficit) $ (355) $ 37,063 $ 9,932 $ 474 $ 3,278
Total assets 198,840 172,913 107,057 38,376 24,053
Long-term debt (including capitalized leases) 467 971 13,302 3,078
Redeemable convertible preferred stock 16,956 15,018
Stockholders' equity (deficit) 150,944 135,123 77,783 (4,209) (2,645)
</TABLE>
(1) In 1998 and 1996, the Company recorded $393,000 and $7.0 million,
respectively, in non-recurring expenses. See "Management's Discussion and
Analysis of Financial Condition and Results of Operations." Excluding non-
recurring expenses, unaudited pro forma basic and diluted net income (loss)
per common share would have been $0.91 and $0.88, respectively, in 1998 and
$(0.31) and $(0.31), respectively, in 1996.
12
<PAGE>
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
This report on Form 10-K contains certain forward-looking statements regarding
the Company's future results of operations and performance. See "Management's
Discussion and Analysis of Financial Condition and Results of Operations
Cautionary Statement Regarding Forward-Looking Statements." Certain factors
that may have a significant effect on the Company's future results and
performance are as follows:
RISK FACTORS
UNCERTAIN ABILITY TO EXECUTE GROWTH STRATEGY. The Company's business has grown
considerably in size and geographic scope, increasing from 14 stores in 1994 to
its current size of 67 stores in 18 states and Canada. In 1998, the Company
acquired seven operating natural foods stores, opened eight new stores, and
relocated two stores. The Company also closed two stores in anticipation of
relocations to new sites in 1999 and sold two stores in Colorado during 1998.
The Company's ability to implement its growth strategy depends to a significant
degree upon its ability to open or acquire stores in existing and new markets
and to integrate and operate those stores profitably. While the Company plans to
expand primarily through the opening of new stores, it will continue to pursue
acquisitions of natural foods retailers where attractive opportunities exist.
The Company's growth strategy is dependent upon a number of factors, including
its ability to:
. access adequate capital resources;
. expand into regions where it has no operating experience;
. identify markets that meet its site selection criteria;
. locate suitable store sites and negotiate acceptable lease
terms;
. locate acquisition targets and negotiate acceptable acquisition
terms;
. hire, train and integrate management and store employees;
. recruit, train and retain regional pre-opening and support
teams;
. complete construction of new stores on time and on budget; and
. expand its distribution and other operating systems.
In addition, the Company pursues a strategy of clustering stores in each of
its markets to increase overall sales, achieve operating efficiencies and
further penetrate markets. In the past, when the Company has opened a store in
a market where it had an existing presence, the Company has experienced a
decline in the sales and operating results at certain of its existing stores in
these markets. The Company intends to continue to pursue its store clustering
strategy and expects the sales and operating results trends for other stores in
an expanded market to continue to experience temporary declines related to the
clustering of stores. Further, acquisitions involve a number of additional
risks, such as short-term negative effects on the Company's reported operating
results, diversion of management's attention, unanticipated problems or legal
liabilities, and the integration of potentially dissimilar operations, some or
all of which could have a material adverse effect on the Company's business,
results of operations and financial condition. There can be no assurance that
the Company will achieve its planned expansion in existing markets, enter new
markets, or operate or integrate its existing, newly-opened or newly-acquired
stores profitably. If the Company fails to do so, the Company's business,
results of operations and financial condition will be materially and adversely
affected. In addition, the Company's ability to execute its growth strategy is
partially dependent upon the demographic trends and market conditions in the
natural foods industry. Any change in those trends and conditions could
adversely affect the Company's future growth rate.
FLUCTUATIONS IN FINANCIAL RESULTS. The Company's results of operations may
fluctuate significantly from period-to-period as the result of a variety of
factors, including:
. the number, timing, mix and cost of store openings, acquisitions
or closings;
. the ratio of stores opened to stores acquired;
. the opening of stores by the Company or its competitors in
markets where the Company has existing stores;
. comparable store sales results;
. the ratio of urban format to supermarket format stores; and
. seasonality in sales volume and sales mix in certain geographic
regions.
13
<PAGE>
The Company incurs significant pre-opening expenses, and new stores
typically experience an initial period of operating losses. As a result, the
opening of a significant number of stores in a single period will have an
adverse effect on the Company's results of operations. Conversely, delays in
opening of planned new stores may result in revenue shortfalls and adversely
affect results of operations. Additionally, the opening of competing stores may
have a similar adverse effect on results of operations. Due to the foregoing
factors, the Company believes that period-to-period comparisons of its operating
results are not necessarily meaningful and that such comparisons cannot be
relied upon as indicators of future financial performance.
COMPETITION. Wild Oats' success will depend in part on its ability to gain
and retain market share from established competitors. In addition, traditional
and specialty grocery stores have begun to expand their selections of natural
products, particularly vitamins and herbal supplements, and thereby compete
directly with the Company for products, customers and locations. The Company
expects competition from both new and existing competitors to increase in its
markets. There can be no assurance that the Company will be able to compete
effectively in the future. The Company believes its primary competitor in the
natural foods grocery store market is Whole Foods Market, Inc. ("Whole Foods").
Whole Foods opened a store in Boulder, Colorado, the location of the Company's
headquarters and three of its stores, in early 1998. Whole Foods' management
also has announced that it intends to seek additional store sites in other
cities in which the Company has stores and has announced sites in Denver,
Colorado and Santa Fe, New Mexico. If Whole Foods is successful in opening
stores in locations in which the Company has or intends to open stores, the
Company's sales and operating results at such stores may be materially adversely
affected.
GOVERNMENT REGULATION. The Company is subject to numerous federal, state
and local laws, regulations and ordinances regulating health and sanitation
standards, food labeling and handling, equal employment, minimum wages and
licensing for the sale of food and alcoholic beverages. Difficulties or failures
in complying with these regulations could adversely affect the operations of an
existing store or delay the opening of a new store.
In December 1997, the United States Department of Agriculture ("USDA")
published, pursuant to the Organic Food Production Act of 1990, its proposed
National Organic Program rules, under which the USDA proposes to regulate the
production, handling, labeling and sale of products bearing the "organic" label.
The Company believes that the rules as published substantially weaken the
current standards for organic food production and labeling, and may undermine
consumer confidence in the quality of certain of the foods sold in its stores.
The rules also may add additional expense to the Company's cost of private label
and in-store prepared foods sold by the Company. The Company submitted a
detailed response to the USDA during the comment period. If the rules are
adopted as currently proposed, such rules could have an adverse effect on the
Company's business, results of operations and financial condition.
In April 1998, the United States Food and Drug Administration ("FDA")
published a proposed amendment to the Dietary Supplement Health and Education
Act of 1994. The Company believes the proposed amendments could substantially
limit the consumer's access to important information on vitamins and
supplements. The Company submitted a response to the proposed amendment before
the end of the FDA comment period. If the proposed amendments are adopted as
currently drafted, information about, and perhaps access to, vitamins and
supplements could be restricted, which could have an adverse effect on the
Company's business, results of operations and financial condition.
OWNERSHIP AND SALE OF REAL PROPERTY; CONSTRUCTION OF FACILITIES. The
Company has purchased parcels of real property for the construction or
remodeling of new stores or the relocation of existing stores. In 1999, the
Company intends to complete construction of or remodel two new stores on real
property purchased by the Company. The Company also has entered into several
leases under which the Company has agreed to construct the buildings in which
its stores will be located in exchange for fixed per-square-foot reimbursements
from the landlord for certain construction and other costs. There can be no
assurance that the Company will be successful in constructing the planned stores
within the Company's projected budgets or on the schedules currently
anticipated. Failure to complete these projects on time or within budget could
have a material adverse impact on the Company's business, sales, results of
operations, and financial condition. The Company anticipates that, after
construction or remodeling of stores on properties owned by the Company is
completed, it will sell the land and buildings in one or more sale-leaseback
transactions under which the Company will lease the stores from the purchaser of
the property. There can be no assurance that the Company will be successful in
locating and negotiating acceptable transactions
14
<PAGE>
with one or more parties for the sale-leaseback of the properties currently
owned by the Company, which may result in unplanned long-term uses of the
Company's cash that would otherwise be available to fund operations.
IMPACT OF THE YEAR 2000 ISSUE. The Company continually evaluates its
management information systems and has made modifications and upgrades where the
Company has believed it to be necessary to comply with Year 2000 concerns.
Although the Company believes that its internal Year 2000 compliance will be
adequate and does not anticipate any disruption in its operations as a result of
its information systems not being Year 2000 compliant, there can be no assurance
that such a disruption will not occur.
Within the software industry and among software users, including but not
limited to the Company's distributors, vendors and banks, there is concern
regarding the impact of Year 2000 issues. If failures of software systems occur
within the operations of the Company's vendors, distributors or financial
centers the failure could affect the Company's business, financial condition and
results of operations. Such failure would result in business consequences that
could include failure to be able to obtain products for its stores, the
inability to serve its customers with products or to process accurate payments
from customers, including credit card transactions and government regulated food
stamp transactions.
Although the Company has taken significant steps to address possible Year 2000
problems, there can be no assurance that failure of the Company's primary
vendors, distributors or financial centers to timely attain Year 2000 compliance
will not materially adversely affect the Company's results of operations and
financial condition. Year 2000 compliance problems in other areas such as
failures by telephone, mail, data transfer or other utility or general service
providers or government or private entities could also have a material adverse
effect on the Company. The Company is currently formulating contingency plans
in the event these third-party systems are not Year 2000 compliant and
anticipates having such plans completed by the third quarter of 1999.
BACKGROUND
STORE OPENINGS, RELOCATIONS, CLOSINGS AND ACQUISITIONS. In 1998, the
Company opened eight new stores in Westminster, Colorado, Princeton, New Jersey,
Dallas, Texas, Las Vegas, Nevada, Indianapolis, Indiana, Pinecrest and South
Beach, Florida and Santa Monica, California and relocated stores in Denver,
Colorado and Columbus, Ohio. The Company also completed the acquisition of
seven existing natural food stores in Nashville, Tennessee, Columbus, Ohio
(which was subsequently relocated), New York, New York, Victoria, British
Columbia, Canada, Santa Barbara, California, Little Rock, Arkansas and Boulder,
Colorado. In fiscal 1998, the Company sold two stores in Colorado, and closed
one small store in Fort Collins, Colorado in preparation for its relocation and
consolidation with another Ft. Collins store in 1999. The Company also closed
one store in Phoenix, Arizona and subsequently relocated the store in Tempe,
Arizona. The Company's results of operations have been and will continue to be
affected by, among other things, the number, timing and mix of store openings,
acquisitions or closings. New stores build their sales volumes and refine their
merchandise selection gradually and, as a result, generally have lower gross
margins and higher operating expenses as a percentage of sales than more mature
stores. The Company anticipates that the new stores opened in 1998 will
experience operating losses for the first six to 12 months of operation, in
accordance with historic trends. Further, acquired stores, while generally
profitable as of acquisition date, generate lower gross margins and store
contribution margins than the Company average, due to their substantially lower
volume purchase discounts and operating practices. Over time, typically six
months, as the Company sells through the acquired inventories and implements its
volume purchase discounts, the Company expects that the gross margin and store
contribution margin of the acquired stores will approach the Company average.
The Company anticipates that a high concentration of acquired stores will have a
temporary negative impact on the Company's consolidated gross margin and store
contribution margin.
The Company is actively upgrading, remodeling or relocating some of its
older stores. Remodels and relocations typically cause short-term disruption in
sales volume and related increases in certain expenses as a percentage of sales,
such as payroll. Remodels, on average, take between 90 and 120 days to
complete. The Company cannot predict whether sales disruptions and the related
impact on earnings may be greater in time or volume than projected in certain
remodeled or relocated stores. The Company will continue to evaluate the
profitability of all of its stores on an ongoing basis and may, from time to
time, close, sell, relocate or remodel certain stores in accordance with such
evaluations.
15
<PAGE>
In the fourth quarter of 1998, the Company introduced its Internet shopping
website, "shop.wildoats.com". The Company incurred and will continue to incur
selling, general and administrative costs for the purchase of the software,
advertising and personnel to operate the website. The Company anticipates that
the website will experience small operating losses for at least the first 12
months of operation until consumer awareness, acceptance and use of the website
grow.
STORE FORMAT AND CLUSTERING STRATEGY. The Company operates two store
formats: supermarket and urban. The supermarket format is generally 15,000 to
35,000 square feet, and typically generates higher sales and store contribution
than the 5,000 to 15,000 square foot urban format stores. The Company's results
of operations have been and will continue to be affected by the mix of
supermarket and urban format stores opened or acquired and whether stores are
being opened in markets where the Company has an existing presence. The Company
expects to focus primarily on opening or acquiring supermarket format stores in
the future but will consider additional urban stores when appropriate
opportunities exist. In addition, the Company pursues a strategy of clustering
stores in each of its markets to increase overall sales, achieve operating
efficiencies and further penetrate markets. The Company believes this strategy
has resulted in increased overall sales in each of its markets. In the past,
when the Company has opened a store in a market where it had an existing
presence, the Company has experienced a decline in the sales and operating
results at certain of its existing stores in that market. However, over time,
the Company believes the affected stores generally will achieve store
contribution margins comparable to prior levels on the lower base of sales. The
Company intends to continue to pursue its store clustering strategy and expects
the sales and operating results trends for other stores in an expanded market to
continue to experience temporary declines related to the clustering of stores.
COMPARABLE STORE SALES RESULTS. Sales of a store are deemed to be
comparable commencing in the thirteenth full month of operations for new,
relocated and acquired stores. A variety of factors affect the Company's
comparable store sales results, including, among others, the relative proportion
of new stores or relocated stores to mature stores, the opening of stores by the
Company or its competitors in markets where the Company has existing stores, the
timing of promotional events, the Company's ability to execute its operating
strategy effectively, changes in consumer preferences for natural foods and
general economic conditions. Past increases in comparable store sales may not
be indicative of future performance.
The Company's comparable store sales results have been negatively affected
in the past by planned cannibalization (the loss of sales at an existing store
when the Company opens a new store nearby) resulting from the implementation of
the Company's store cluster strategy. The Company expects that comparable sales
increases will continue to be negatively affected by planned cannibalization
throughout 1999 due to the planned opening of new or relocated stores in several
of the Company's existing markets including Phoenix, Arizona, Las Vegas, Nevada,
Albuquerque, New Mexico and Salt Lake City, Utah. There can be no assurance
that comparable store sales for any particular period will not decrease in the
future.
PRE-OPENING EXPENSES. Pre-opening expenses include labor, rent, utilities,
supplies and certain other costs incurred prior to a store's opening. Through
1998, pre-opening costs were deferred during the pre-opening period and expensed
in full when the store opened. Pre-opening expenses have averaged approximately
$250,000 to $350,000 per store over the past 18 months, although the amount per
store may vary depending on the store format and whether the store is the first
to be opened in a market, or is part of a cluster of stores in that market.
In April 1998, the American Institute of Certified Public Accountants
issued Statement of Position ("SOP") 98-5, Accounting for Costs of Start-Up
Activities. SOP 98-5 requires that pre-opening costs be expensed as incurred.
SOP 98-5 is effective for fiscal years beginning after December 15, 1998, and
the initial application should be reported as a cumulative effect of a change in
accounting principle. The Company will adopt SOP 98-5 in fiscal 1999 and will
record approximately $284,000 as a cumulative effect of a change in accounting
principle, net of taxes, during the first quarter of 1999.
16
<PAGE>
RESULTS OF OPERATIONS
The following table sets forth for the periods indicated, certain selected
income statement data expressed as percentages of sales:
<TABLE>
<CAPTION>
FISCAL YEAR ENDED 1998 1997 1996
- ----------------- ------ ------ ------
<S> <C> <C> <C>
Sales 100.0% 100.0% 100.0%
Cost of goods sold
and occupancy costs 68.9 69.2 68.0
----- ----- -----
Gross profit 31.1 30.8 32.0
Direct store expenses 21.8 23.0 25.1
----- ----- -----
Store contribution 9.3 7.8 6.9
Selling, general and
administrative expenses 3.7 3.6 4.7
Pre-opening expenses 0.8 0.4 0.9
Non-recurring expenses 0.1 3.7
----- ----- -----
Income (loss) from operations 4.7 3.8 (2.4)
Interest income (expense), net 0.1 (0.4)
----- ----- -----
Income (loss) before income taxes 4.8 3.8 (2.8)
Income tax expense (benefit) 1.9 1.6 (0.5)
----- ----- -----
Net income (loss) 2.9% 2.2% (2.3)%
===== ===== =====
</TABLE>
FISCAL 1998 COMPARED TO FISCAL 1997
Fiscal 1998 contained 53 weeks of operations as compared to 52 weeks in fiscal
1997.
SALES Sales for the fiscal year ended January 2, 1999, increased 28.2% to
$398.9 million from $311.1 million in 1997. The increase was primarily due to
the acquisition of seven stores, the opening of eight new stores, and the
relocation of two stores, as well as the inclusion of a full year of sales for
the four new stores opened and nine stores acquired in 1997. Comparable store
sales increased 3% for 1998, as compared to 5% for 1997.
GROSS PROFIT Gross profit for the fiscal year ended January 2, 1999,
increased 29.4% to $124.1 million from $95.9 million in 1997. The increase in
gross profit is primarily attributable to the acquisition of seven stores and
the opening of eight new stores. As a percentage of sales, gross profit
increased to 31.1% from 30.8% in 1997 due to the maturation of the Company's
store base, the Company's increasing volume purchase discounts, and enhanced
inventory management.
DIRECT STORE EXPENSES Direct store expenses for the fiscal year ended
January 2, 1999, increased 21.7% to $87.0 million from $71.5 million in 1997.
The increase in direct store expenses is attributable to the increase in the
number of stores operated by the Company. As a percentage of sales, direct
store expenses decreased to 21.8% from 23.0% in 1997 due to the matured
performance of the new stores opened in 1997, as well as improved control of
direct store expenses, particularly payroll and benefits costs.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES Selling, general and
administrative expenses for the fiscal year ended January 2, 1999, increased
27.8% to $14.7 million from $11.5 million in 1997. The increase is primarily
attributable to the acquisition of seven stores and the opening of eight new
stores during 1998. As a percentage of sales, selling, general and
administrative expenses increased to 3.7% from 3.6% in 1997 as a result of
additional personnel costs in the information technology, marketing and
purchasing departments needed to support the Company's growth plans, as well as,
additional costs to distribute the Company's marketing materials, such as its
special flyers, to its customers. In addition, the Company moved its corporate
office during the fourth quarter of 1998 to a larger facility to accommodate an
increased support staff for its larger base of stores. There are additional
selling, general and administrative expenses for rent and utilities on the new
facility, as well as costs of relocating the information systems used by the
Company.
PRE-OPENING EXPENSES Pre-opening expenses for the fiscal year ended January
2, 1999, increased 198.2% to $3.3 million from $1.1 million in 1997. The
increase in pre-opening expenses is attributable to the increase in the number
of stores opened or relocated. As a percentage of sales, pre-opening expenses
increased to 0.8% from 0.4%
17
<PAGE>
due to the delayed opening of two stores resulting in additional pre-opening
costs primarily in the form of rental payments, as well as the opening of eight
new stores in 1998 as compared to four new stores in 1997.
NON-RECURRING EXPENSES Non-recurring expenses for the fiscal year ended
January 2, 1999, were $393,000, as compared to no non-recurring expenses in
1997. The change is attributed to employee severance costs, inventory and fixed
asset write-downs, and lease cancellation costs associated with two pooling-of-
interests transactions during 1998.
INTEREST INCOME, NET Net interest income for the fiscal year ended January
2, 1999, increased 508.8% to $688,000, from $113,000 in 1997. As a percentage
of sales, net interest income increased to 0.1% from less than 0.1% in 1997.
The increase is attributable to the investment of the net proceeds from the
Company's public equity offering in December 1997 and to lower levels of
indebtedness incurred to fund new store openings and acquisitions.
FISCAL 1997 COMPARED TO FISCAL 1996
SALES Sales for the fiscal year ended December 27, 1997, increased 61.6% to
$311.1 million from $192.5 million in 1996. The increase was primarily due to
the acquisition of nine stores, the opening of four new stores, and the
relocation of one store, as well as the inclusion of a full year of sales for
the seven new stores opened and 13 stores acquired in 1996. Comparable store
sales increased 5% for 1997, as compared to 2% for 1996. Comparable store sales
for the Company's Colorado and Canadian stores were negatively affected in the
second quarter of 1997 resulting from strikes at the Company's major
conventional competitors in those markets in the second quarter of 1996, which
resulted in increased sales in that quarter at the Company's stores in those
markets.
GROSS PROFIT Gross profit for the fiscal year ended December 27, 1997,
increased 55.9% to $95.9 million from $61.5 million in 1996. The increase in
gross profit on a dollar basis is primarily attributable to the acquisition of
nine stores and the opening of four new stores. As a percentage of sales, gross
profit decreased to 30.8% from 32.0% in the same period in 1996 due to
aggressive pricing programs on advertised items instituted in 1997 and a related
increase in the number of lower-margin items offered for sale in the Company's
stores, and the effect of acquiring nine stores in the first six months of 1997.
DIRECT STORE EXPENSES Direct store expenses for the fiscal year ended
December 27, 1997, increased 48.0% to $71.5 million from $48.3 million in 1996.
The increase in direct store expenses is attributable to the increase in the
number of stores operated by the Company. As a percentage of sales, direct store
expenses decreased to 23.0% from 25.1% in the same period in 1996 due to the
matured performance of the new stores opened in 1996.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES Selling, general and
administrative expenses for the fiscal year ended December 27, 1997, increased
28.0% to $11.5 million from $9.0 million in 1996. The increase is primarily
attributable to the acquisition of nine stores and the opening of four new
stores during 1997. As a percentage of sales, selling, general and
administrative expenses decreased to 3.6% from 4.7% in 1996 as a result of
completing the consolidation of the overhead structure of Alfalfa's Inc.
("Alfalfa's") begun in July 1996 (when the Company acquired ten Alfalfa's
natural foods retail stores, including three Capers stores in Vancouver, British
Columbia).
PRE-OPENING EXPENSES Pre-opening expenses for the fiscal year ended December
27, 1997 decreased 37.7% to $1.1 million from $1.8 million in 1996. The decrease
in pre-opening expenses is attributable to the decrease in the number of new
stores opened (i.e., four in 1997, as compared to seven in 1996).
INTEREST INCOME (EXPENSE), NET Net interest income for the fiscal year ended
December 27, 1997, was $113,000, as compared to net interest expense of $904,000
in 1996. Net interest income during 1997 is attributable to the investment of
the proceeds from the Company's public stock offerings in October 1996 and
December 1997 and to lower levels of indebtedness incurred to fund store
openings and acquisitions.
NON-RECURRING EXPENSES During 1996, the Company performed a thorough
analysis of its operations subsequent to the acquisition of Alfalfa's and made
certain decisions relating to its operations which resulted in a $7.0 million
non-recurring charge being recorded, of which $5.7 million were non-cash write-
offs. The charge is attributable to (i) closing the Wild Oats store in Lawrence,
Kansas, resulting in approximately $800,000 in lease-cancellation costs
18
<PAGE>
and asset write-offs, as well as closing a regional bakery and kitchen,
resulting in approximately $200,000 in asset write-offs and lease adjustment
costs; (ii) moving out of the Company's existing corporate headquarters and
relocating to the former Alfalfa's corporate headquarters, resulting in
approximately $700,000 in lease-cancellation costs, relocation costs and asset
write-offs; and (iii) consolidating certain information systems, resulting in
approximately $300,000 in asset write-offs. In addition, after operating the
combined companies, management closed the Alfalfa's Seattle, Washington store,
resulting in approximately $4.5 million of severance costs, lease-cancellation
costs and asset write-offs, and a restaurant in a Capers store, resulting in
approximately $500,000 of severance costs, lease-cancellation costs and asset
write-offs. At the time of the Alfalfa's acquisition, the Company had planned to
retain the Seattle store and Vancouver restaurant operation.
LIQUIDITY AND CAPITAL RESOURCES
The Company's primary sources of capital have been cash from operations,
trade payables, bank indebtedness, and the sale of equity securities. Primary
uses of cash have been the financing of new store development, the purchase of
real property, new store openings and acquisitions.
Net cash provided by operating activities was $25.5 million during 1998 and
$19.7 million during 1997. Cash provided by operating activities increased
during this period primarily as a result of an increase in net income before
depreciation and amortization expense and increases in accounts payable and
accrued liabilities. Net cash provided by operating activities was $19.7
million during 1997 and $9.5 million during 1996. Cash provided by operating
activities increased during this period primarily as a result of an increase in
net income before depreciation and amortization expense. The Company has not
required significant external financing to support inventory requirements at its
existing and new stores because it has been able to rely on vendor financing for
most of the inventory costs, and anticipates that vendor financing will continue
to be available for new store openings.
Net cash used by investing activities was $62.1 million during 1998 and
$37.6 million during 1997. The increase is due to the acquisition of seven
stores and the opening of eight new stores during 1998, the purchase of real
property and the construction costs incurred for six new or relocated stores in
development which are expected to open during the first six months of 1999. Net
cash used by investing activities was $37.6 million during 1997 and $27.3
million during 1996 due to the acquisition of nine stores and the opening of
four new stores during 1997, the purchase of real property and the construction
costs incurred for six new stores in development which opened during the first
nine months of 1998.
Net cash provided by financing activities was $1.1 million during 1998,
$48.2 million during 1997, and $33.1 million during 1996. The fluctuation was
primarily due to net proceeds of $46.5 million from the sale of 2.1 million
shares of the Company's common stock pursuant to a public equity offering in
December 1997.
The Company currently has an $80 million revolving line of credit. The
facility has a three-year term and bears interest, at the Company's option, at
the prime rate or LIBOR plus 0.65%. The revolving line agreement includes
certain financial and other covenants, as well as restrictions on payments of
dividends. As of March 8, 1999, the Company had $21.8 million in borrowings
outstanding on this facility.
The Company spent approximately $65.0 million during 1998, and anticipates
that it will spend approximately $50.0 million during 1999 for new store
construction, acquisitions, purchases of real property, development, remodels
and maintenance capital expenditures. The Company's average capital
expenditures to open a leased store, including leasehold improvements, equipment
and fixtures, have ranged from approximately $2.0 million to $3.0 million over
the past 24 months, excluding inventory costs and initial operating losses.
Over the past 12 months, average capital expenditures have been approximately
$2.5 million per store. The Company attributes the increase in expenditures to
an increase in the average size of its new stores and the number of its new
store openings over time, and the use of a greater proportion of new and custom
equipment in its stores.
In 1998, 1997 and 1996, the Company purchased, or entered into contracts to
purchase, real property or ground leases on which the Company has constructed
new stores or plans to relocate certain existing stores. The Company also
purchased (and subsequently sold) real property underlying a previously leased
store. The Company constructed two new stores on these properties that opened in
1998, and plans to complete construction of two additional new stores in 1999.
Construction of stores requires substantially greater cash outlays than the
remodeling
19
<PAGE>
of existing buildings (i.e., $3.5 to $9.0 million, as compared to $2.0 to 3.0
million). The Company has sold the property under its Westminster, Colorado
store and anticipates that, after construction of the two remaining stores on
the acquired properties is completed, it will sell the land and buildings in one
or more sale-leaseback transactions under which the Company will lease the
stores from the purchaser of the property. If the Company is not successful in
locating and negotiating acceptable transactions with one or more parties for
the sale and leaseback of the properties currently owned by the Company, this
may result in unplanned, long-term uses of the Company's cash that otherwise
would be available to fund operations. Additionally, unexpected permitting and
construction delays could result in greater or longer term cash outlays.
The cost of initial inventory for a new store has historically been
approximately $500,000; however, the Company relies on vendor financing for most
of this cost. Pre-opening costs are approximately $250,000 per store and
through 1998 were expensed when the new store opened. Beginning in 1999, pre-
opening costs will be expensed as incurred. The amounts and timing of such pre-
opening costs will depend upon the availability of new store sites and other
factors, including the location of the store and whether it is in a new or
existing market for the Company, the size of the store, and the required build-
out at the site. Costs to acquire future stores, if any, are impossible to
predict and could vary materially from the cost to open new stores or the
purchase prices of previous acquisitions. The Company believes that the cash
generated from operations and funds available under the revolving line will be
sufficient to satisfy its cash requirements, exclusive of acquisitions, through
fiscal 1999.
YEAR 2000 READINESS STATEMENT
INFORMATION TECHNOLOGIES. As the Year 2000 approaches, the Company
recognizes the need to ensure its operations will not be adversely impacted by
Year 2000 software or hardware failures. The Company has determined that all of
its major software and hardware systems at its corporate headquarters are Year
2000 compliant. The Company has substantially completed installing Year 2000
compliant point-of-sale hardware (cash registers and scanners) in its stores.
In 1995, the Company began installing new point-of-sale systems to enable its
stores to have scanning capabilities. The Company has not accelerated the
installation schedule for this equipment in response to Year 2000 compliance
issues. All equipment installed since 1995 is Year 2000 compliant. Total
replacement and installation cost to date has been approximately $5.0 million,
with the cost to complete the installation in 1999 in the Company's existing
noncompliant stores estimated at an additional $500,000. This cost may increase
if the Company acquires additional stores with noncompliant point-of-sale
systems. The existing point-of-sale hardware was and is being replaced to
accommodate a merchandise management system that is Year 2000 compliant and that
was previously acquired by the Company for its greater item movement, tracking,
pricing and reporting capabilities. The Company will continue to make certain
investments in its software systems and applications to ensure that they are
Year 2000 compliant. The financial impact of these investments to the Company
is not anticipated to be material in any single year.
VENDORS, SUPPLIERS AND SERVICE PROVIDERS. The Company also is in the
process of verifying whether its major suppliers, service providers, and
financial institutions are Year 2000 compliant. Many of the Company's product
vendors are smaller businesses that have not considered the impact of Year 2000
noncompliance and so are taking no steps to ensure compliance. To the extent
that product vendors' manufacturing or distribution systems fail as a result of
Year 2000 noncompliance, certain products carried by the Company's stores could
become unavailable, resulting in decreases in operating revenues, although in
many circumstances, alternative local vendors' products may be available. The
Company is currently requesting Year 2000 compliance statements from its major
vendors to determine whether such vendors' distribution of product may be
interrupted as a result of Year 2000 compliance problems. The Company will,
based on the responses received, formulate an alternative action plan to ensure
minimal impact on the available supply of products in its stores. One of the
Company's largest distributors recently provided information to its customers
concerning its own Year 2000 compliance. Currently this distributor has
upgraded or replaced the majority of its technology infrastructure and devices
that had embedded computer chips with compliant systems and devices. Successful
testing has been done on all of the systems and devices, and the distributor
believes that its current schedule of being Year 2000 compliant by July 1999
will be successfully met. At this time, the Company cannot evaluate the
magnitude of the impact that a failure by the distributor to successfully
install compliant systems could have on the Company's operations. A failure in
the distributor's warehouse facilities could affect the Company's ability to
stock product in certain of its stores, resulting in lower sales revenues in
those stores. The Company's stores' operations could be materially adversely
affected if utilities
20
<PAGE>
are disrupted. At this time the Company is in the process of developing
contingency plans to address product or utility disruptions.
If the Company's financial institutions are not Year 2000 compliant, a
failure in their operating system could result in a temporary inability by the
Company to access necessary cash resources required for operations; however,
normal store operations will generate sufficient revenues to cover daily
operating needs. The Company's credit card processor has confirmed to the
Company that it has adapted its systems to accept credit cards issued with
expiration dates of 2000 and beyond and has also completed implementation of the
phases of its compliance program in accordance with guidelines of the Federal
Financial Institutions Examination Council.
MECHANICAL SYSTEMS. The Company has commenced review of the various
individual mechanical systems, such as HVAC, refrigeration and security systems,
in its stores to determine whether any Year 2000 compliance issues exist as to
these systems. The Company has contacted the suppliers of certain store systems
with embedded chips where Year 2000 compliance may be an issue to obtain
confirmation of compliance or instructions for reprogramming in the event of a
compliance problem. Responses received to date to a questionnaire sent to
service providers of mechanical systems indicate there will be little impact on
store operations due to Year 2000 noncompliance in mechanical systems. The
Company does not anticipate that any major store mechanical systems will require
replacement because of Year 2000 compliance concerns or that noncompliance of
any mechanical systems will have any material effect on store operations. The
dollar value of perishable goods that could be affected by a failure in
refrigerated systems is small in comparison to the total inventory of any store.
The estimates and conclusions regarding Year 2000 impact contained above
are forward-looking statements based on the Company's best estimates of future
events. Actual results may differ due to certain risks and uncertainties that
the Company cannot, at this time, predict.
NEW ACCOUNTING PRONOUNCEMENTS
In 1997, the Financial Accounting Standards Board ("FASB") issued Statement
of Financial Accounting Standards ("FAS") No. 130, Reporting Comprehensive
Income. FAS No. 130 establishes standards for the reporting and presentation of
comprehensive income and its components in a full set of general-purpose
financial statements. FAS No. 130 requires that all items that are required to
be recognized under accounting standards as components of comprehensive income
be reported in a financial statement that is displayed with the same prominence
as other financial statements. The Company adopted FAS No. 130 in 1998.
Also in 1997, the FASB issued FAS No. 131, Disclosure about Segments of an
Enterprise and Related Information. FAS No. 131 revises the current
requirements for reporting business segments by redefining such segments
according to management's disaggregation of the business for purposes of making
operating decisions and allocating internal resources. The Company adopted FAS
No. 131 effective January 2, 1999. However, as the Company operates in only one
segment, the adoption does not have an effect on financial statement
presentation.
In March 1998, the AICPA issued SOP 98-1, Accounting for the Costs of
Computer Software Developed or Obtained for Internal Use. SOP 98-1, which is
effective for transactions in fiscal years beginning after December 15, 1998,
provides guidance on accounting for the costs of computer software developed or
obtained for internal use. The Company will adopt SOP 98-1 for the 1999 fiscal
year, but does not expect such adoption to have a material effect on its
reported financial results.
As previously discussed herein, in April 1998, the AICPA issued SOP 98-5,
Accounting for the Costs of Start-Up Activities. See "Management's Discussion
and Analysis of Financial Condition and Results of Operations Pre-Opening
Expenses."
In June 1998, the FASB issued FAS No. 133, Accounting for Derivative
Instruments and Hedging Activities. FAS No. 133, which is effective for fiscal
years beginning after June 15, 1999, requires all derivatives to be recognized
in the balance sheet as either assets or liabilities and measured at fair value.
In addition, all hedging relationships must be reassessed and documented
pursuant to the provisions of FAS No. 133. The Company will adopt FAS No. 133
for the 2000 fiscal year, but does not expect such adoption to materially affect
financial statement presentation as such activities are minimal.
21
<PAGE>
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This Report on Form 10-K contains "forward-looking statements," within the
meaning of the Private Securities Litigation Reform Act of 1995, that involve
known and unknown risks. Such forward-looking statements include statements as
to the Company's plans to acquire or open additional stores, the anticipated
performance of new or acquired stores, the impact of competition and other
statements containing words such as "believes," "anticipates," "estimates,"
"expects," "may," "intends" and words of similar import or statements of
management's opinion. These forward-looking statements and assumptions involve
known and unknown risks, uncertainties and other factors that may cause the
actual results, market performance or achievements of the Company to differ
materially from any future results, performance or achievements expressed or
implied by such forward-looking statements. Important factors that could cause
such differences include, but are not limited to, changes in economic or
business conditions in general or affecting the natural foods industry in
particular, changes in product supply, changes in the competitive environment in
which the Company operates, competition for and the availability of sites for
new stores and potential acquisition candidates, changes in the Company's
management information needs, changes in customer needs and expectations and
governmental actions. The Company undertakes no obligation to update any
forward-looking statements in order to reflect events or circumstances that may
arise after the date of this Annual Report.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES
ABOUT MARKET RISK
Not applicable.
22
<PAGE>
Item 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
CONSOLIDATED STATEMENT OF OPERATIONS
(In thousands, except per-share amounts)
<TABLE>
<CAPTION>
FOR THE FISCAL YEAR ENDED JANUARY 2, DECEMBER 27, DECEMBER 28,
1999 1997 1996
- --------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Sales $398,857 $311,077 $192,493
Cost of goods sold and occupancy costs 274,780 215,156 130,957
-------- -------- --------
Gross profit 124,077 95,921 61,536
Operating expenses
Direct store expenses 87,035 71,516 48,317
Selling, general and administrative expenses 14,687 11,488 8,977
Pre-opening expenses 3,277 1,099 1,763
Non-recurring expenses 393 7,035
-------- -------- --------
Income (loss) from operations 18,685 11,818 (4,556)
Interest income 975 295 87
Interest expense (287) (182) (991)
-------- -------- --------
Income (loss) before income taxes 19,373 11,931 (5,460)
Income tax expense (benefit) 7,725 4,895 (977)
-------- -------- --------
Net income (loss) 11,648 7,036 (4,483)
Accretion of redeemable preferred stock 2,396
-------- -------- --------
Net income (loss) allocable to common stock 11,648 7,036 (6,879)
-------- -------- --------
Other comprehensive income
Foreign currency translation adjustment, net 22 (46) (85)
-------- -------- --------
Comprehensive income (loss) $ 11,670 $ 6,990 $ (6,964)
======== ======== ========
Basic net income (loss) per common share $0.90 $0.67 $(1.35)
======== ======== ========
Weighted average number of common
shares outstanding 12,967 10,568 5,078
======== ======== ========
Diluted net income (loss) per common share $0.87 $0.64 $(1.35)
======== ======== ========
Weighted average number of common
shares outstanding assuming dilution 13,393 10,957 5,078
======== ======== ========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
23
<PAGE>
CONSOLIDATED BALANCE SHEET
(In thousands, except share amounts)
<TABLE>
<CAPTION>
JANUARY 2, DECEMBER 27,
1999 1997
- ----------------------------------------------------------------------------------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 11,255 $ 46,686
Inventories, net 28,464 21,539
Accounts receivable (net of
allowance
for doubtful accounts of
$159 and $214) 1,762 674
Income tax receivable 317
Prepaid expenses and other
current assets 1,956 735
Deferred income taxes 812 1,447
--------- ---------
Total current assets 44,249 71,398
Property and equipment, net 97,878 56,285
Intangible assets, net 55,827 44,389
Deposits and other assets 886 841
--------- ---------
$ 198,840 $ 172,913
========= =========
LIABILITIES AND
STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 29,022 $ 22,487
Accrued liabilities 12,432 11,840
Notes payable 3,150
Current portion of
long-term obligations 8
--------- ---------
Total current
liabilities 44,604 34,335
Long-term debt 467
Deferred income taxes 1,958 2,187
Other long-term obligations 1,334 801
--------- ---------
47,896 37,790
--------- ---------
Commitments and
contingencies (Notes 10 and 11)
Stockholders' equity:
Common stock; $.001 par
value; 20,000,000
shares authorized; 13,077,884 and 12,745,971
issued and outstanding 13 13
Additional paid-in capital 140,778 136,815
Retained earnings
(accumulated deficit) 10,262 (1,574)
Accumulated other
comprehensive income (109) (131)
--------- ---------
Total stockholders'
equity 150,944 135,123
--------- ---------
$ 198,840 $ 172,913
========= =========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
24
<PAGE>
CONSOLIDATED STATEMENT OF CHANGES IN STOCKHOLDERS' EQUITY (DEFICIT)
(In thousands, except share and per-share amounts)
<TABLE>
<CAPTION>
RETAINED ACCUMULATED
ADDITIONAL EARNINGS OTHER STOCKHOLDERS'
COMMON STOCK TREASURY STOCK PAID-IN (ACCUMULATED COMPREHENSIVE EQUITY
SHARES AMOUNT SHARES AMOUNT CAPITAL DEFICIT) INCOME (DEFICIT)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Balance at December 30, 1995 4,084,961 $ 4 602,387 $(5,349) $ 2,867 $ (1,731) $ (4,209)
Issuance of common stock
($11.13 per share) 1,175,132 1 13,086 13,087
Initial public offering of
common stock
($16.67 per share), net of
issuance costs 2,100,000 2 31,400 31,402
Accretion of redeemable
preferred stock (2,396) (2,396)
Conversion of redeemable
convertible preferred
stock into shares of common
stock 3,484,213 3 43,099 43,102
Issuance of stock options 1,109 1,109
Common stock options
exercised
($4.70 to $11.40 per share) 76,380 298 298
Repurchase of common stock 5,028 (42) (42)
Retirement of treasury stock (607,415) (607,415) 5,391 (5,391)
Net loss (4,483) (4,483)
Foreign currency translation
adjustment $ (85) (85)
---------- --- -------- ------- -------- -------- -------- --------
Balance at December 28, 1996 10,313,271 10 86,468 (8,610) (85) 77,783
Issuance of common stock
($10.67 to $14.17 per share) 101,564 1,117 1,117
Public offering of common
stock
($22.48 per share), net of
issuance costs 2,083,542 2 46,536 46,538
Common stock options and
warrants
exercised ($2.65 to $12.67
per share) 247,594 1 2,694 2,695
Net income 7,036 7,036
Foreign currency translation
adjustment (46) (46)
---------- --- -------- ------- -------- -------- -------- --------
Balance at December 27, 1997 12,745,971 13 136,815 (1,574) (131) 135,123
Pooling-of-interests
transactions 133,363 60 188 248
Issuance of common stock
($14.45 to $30.50 per share) 46,564 1,096 1,096
Common stock options
exercised
($4.70 to $24.00 per share) 151,986 2,807 2,807
Net income 11,648 11,648
Foreign currency translation
adjustment 22 22
---------- --- -------- ------- -------- -------- -------- --------
Balance at January 2, 1999 13,077,884 $13 - $ - $140,778 $ 10,262 $ (109) $150,944
========== === ======== ======= ======== ======== ======== ========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
25
<PAGE>
CONSOLIDATED STATEMENT OF CASH FLOWS
(In thousands)
<TABLE>
<CAPTION>
FISCAL YEAR ENDED JANUARY 2, DECEMBER 27, DECEMBER 28,
1999 1997 1996
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net income (loss) $11,648 $ 7,036 $ (4,483)
Adjustments to reconcile net income (loss) to
net cash provided by operating activities:
Write-off of assets in non-recurring expenses 5,746
Depreciation and amortization 13,340 8,947 7,019
Loss (gain) on disposal of property and equipment and
settlement of property-related obligations (580) (1,060) 110
Deferred tax provision (benefit) 406 1,737 (863)
Deferred severance 476
Change in assets and liabilities:
Inventories (5,306) (2,818) (4,239)
Receivables and other assets (2,327) (376) (1,529)
Accounts payable 6,330 4,762 3,001
Accrued liabilities 1,975 1,015 4,737
------- ------- -------
Net cash provided by operating activities 25,486 19,719 9,499
------- ------- -------
CASH FLOWS FROM INVESTING ACTIVITIES
Capital expenditures (54,520) (24,151) (13,174)
Payment for purchase of acquired
entities, net of cash acquired (10,481) (14,003) (14,109)
Proceeds from sale of property and equipment 2,894 566
------- ------- -------
Net cash used by investing activities (62,107) (37,588) (27,283)
------- ------- -------
CASH FLOWS FROM FINANCING ACTIVITIES
Payments on line of credit (12,486)
Payments on long-term debt (875) (1,448) (2,029)
Principal payments under capitalized leases (60) (88)
Proceeds from issuance of redeemable preferred stock, net 16,068
Proceeds from issuance of common stock, net 2,003 49,705 31,700
Purchase of treasury stock (42)
------- ------- -------
Net cash provided by financing activities 1,128 48,197 33,123
------- ------- -------
Effect of exchange rates on cash 62 (46) (85)
------- ------- -------
Net increase (decrease) in cash and cash equivalents (35,431) 30,282 15,254
Cash and cash equivalents at beginning of year 46,686 16,404 1,150
------- ------- -------
Cash and cash equivalents at end of year $ 11,255 $ 46,686 $ 16,404
======= ======= =======
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:
Cash paid for interest $ 155 $ 182 $ 1,099
======= ======= =======
Cash paid for income taxes $ 6,258 $ 1,456 $ 809
======= ======= =======
SUPPLEMENTAL DISCLOSURE OF NON-CASH INVESTING AND FINANCING ACTIVITIES:
Short-term note payable issued for business acquisition $ 3,150
=======
Common stock issued in relation to prior year business acquisition $ 488
=======
Preferred stock, common stock and options issued and total debt
and liabilities incurred and assumed in acquisitions $ 3,400 $ 34,300
======= =======
Conversion of preferred stock into common stock $ 43,100
=======
Accretion of preferred stock $ 2,400
=======
</TABLE>
In addition, the Company issued 133,363 shares as consideration for pooling-of-
interests transactions in 1998.
The accompanying notes are an integral part of these consolidated financial
statements.
26
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
ORGANIZATION
Wild Oats Markets, Inc. ("Wild Oats" or the "Company"), headquartered in
Boulder, Colorado, owns and operates natural foods supermarkets in the United
States and Canada. The Company also operates bakeries, commissary kitchens, and
warehouses that supply the retail stores. The Company's operations are
concentrated in one market segment--grocery stores--and are geographically
concentrated in the western and central United States. Management considers a
downturn in this market segment and geographic location to be unlikely.
BASIS OF PRESENTATION
Certain amounts in the prior years' financial statements have been reclassified
to conform to the current year presentation.
PRINCIPLES OF CONSOLIDATION
The Company's consolidated financial statements include the accounts of the
Company and its wholly-owned subsidiaries, Alfalfa's Canada, Inc. and Wild Oats
Markets Canada, Inc. All significant intercompany accounts and transactions
have been eliminated.
FISCAL YEAR
The Company reports its financial results on a 52- or 53-week fiscal year ending
on the Saturday closest to December 31. Each fiscal quarter consists of a 13-
week period, with one 14-week period in a 53-week year. Fiscal year 1998 was a
53-week period, and fiscal years 1997 and 1996 were 52-week periods.
CASH AND CASH EQUIVALENTS
The Company considers all highly liquid investments with a maturity of three
months or less when purchased to be cash equivalents. Such cash equivalents
aggregated $2.1 million and $40.2 million at January 2, 1999 and December 27,
1997, respectively.
INVENTORIES
Inventories consisting of products held for sale are stated at the lower of cost
(first-in, first-out) or market, as determined by the retail inventory method.
DEPRECIATION AND AMORTIZATION
Property and equipment are recorded at cost. Depreciation is computed on a
straight-line basis over the estimated useful lives of the respective assets
(three to seven years). Leasehold improvements are amortized on a straight-line
basis over the shorter of the useful life of the asset or the lease term.
Maintenance and repairs are expensed as incurred, and improvements are
capitalized.
INTANGIBLE ASSETS
Intangible assets consist primarily of goodwill, which is amortized using the
straight-line method over 40 years, and are shown net of accumulated
amortization of $4.3 million and $2.8 million at January 2, 1999 and December
27, 1997, respectively. The carrying value of goodwill is assessed for
recoverability by management based on an analysis of undiscounted expected
future cash flows from the related acquired entities. The Company believes that
there has been no impairment thereof as of January 2, 1999.
PRE-OPENING EXPENSES
Pre-opening expenses are included in other current assets and consist primarily
of labor costs, rent, utilities, supplies, and other expenses incurred in
connection with the opening of a new store. Through fiscal 1998, pre-opening
expenses were deferred until the store's opening date, at which time such costs
were expensed in full. Beginning in fiscal 1999, pre-opening expenses will be
recognized as incurred.
ADVERTISING
Advertising is expensed as incurred. Advertising expense was $4.0 million, $4.0
million, and $2.7 million for 1998, 1997 and 1996, respectively.
FAIR VALUE OF FINANCIAL INSTRUMENTS
The carrying amounts of the Company's financial instruments, including cash and
cash equivalents, short-term trade receivables and payables and long-term debt,
approximate their fair values.
USE OF ESTIMATES
The preparation of these financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the amounts reported in the consolidated financial
statements and accompanying notes. Actual results could differ from those
estimates.
FOREIGN CURRENCY TRANSLATION
The functional currency for the Company's Canadian subsidiary is the Canadian
dollar. Translation into U.S. dollars is performed for assets and liabilities
at the exchange rate as of the balance sheet date. Income and expense accounts
are translated
27
<PAGE>
at average exchange rates for the year. Adjustments resulting from the
translation are reflected as a separate component of stockholders' equity.
EARNINGS PER SHARE
Basic earnings per share is based on the weighted-average number of common
shares outstanding, and diluted earnings per share is based on the weighted-
average number of common shares outstanding and all dilutive potential common
shares outstanding, except where the effect of their inclusion would be
antidilutive (i.e., in a loss period). A reconciliation of the basic and
diluted per-share computations is as follows (in thousands, except per-share
data):
<TABLE>
<CAPTION>
JAN. 2, DEC. 27, DEC. 28,
FISCAL YEAR ENDED 1999 1997 1996
- ----------------- ------- -------- --------
<S> <C> <C> <C>
BASIC EARNINGS (LOSS) PER
COMMON SHARE COMPUTATION:
Net income (loss) allocable to
common stock $11,648 $ 7,036 $(6,879)
Weighted average common shares issued 12,967 10,568 5,078
Earnings (loss) per common share $ 0.90 $ 0.67 $ (1.35)
======= ======= =======
DILUTED EARNINGS (LOSS) PER
COMMON SHARE COMPUTATION:
Net income (loss) allocable to
common stock $11,648 $ 7,036 $(6,879)
Weighted average common shares issued 12,967 10,568 5,078
Incremental shares from
assumed conversions:
Stock options 426 389
------- ------- -------
Total dilutive average
common shares issued 13,393 10,957 5,078
------- ------- -------
Diluted earnings (loss)
per common share $ 0.87 $ 0.64 $ (1.35)
======= ======= =======
</TABLE>
Due to the Company's net loss allocable to common stock in 1996, diluted loss
per share is the same as basic. In 1996, dilutive securities not included in
the calculation consisted of stock options and warrants convertible into
1,028,178 shares of common stock. Weighted average shares outstanding related
thereto would have been 5,333,000.
NEW ACCOUNTING PRONOUNCEMENTS
In 1997, the Financial Accounting Standards Board ("FASB") issued Statement of
Financial Accounting Standards ("FAS") No. 131, Disclosure about Segments of an
Enterprise and Related Information. FAS No. 131 revises the current
requirements for reporting business segments by redefining such segments
according to management's disaggregation of the business for purposes of making
operating decisions and allocating internal resources. The Company adopted FAS
No. 131 in 1998. The adoption of FAS No. 131 did not affect results of
operations, financial position, or the disclosure of segment information as the
Company has one reportable segment, retail sales.
In March 1998, the American Institute of Certified Public Accountants ("AICPA")
issued Statement of Position ("SOP") 98-1, Accounting for the Costs of Computer
Software Developed or Obtained for Internal Use. SOP 98-1, which is effective
for transactions in fiscal years beginning after December 15, 1998, provides
guidance on accounting for the costs of computer software developed or obtained
for internal use. The Company will adopt SOP 98-1 for the 1999 fiscal year, but
does not expect such adoption to have a material effect on its reported
financial results.
In April 1998, the AICPA issued SOP 98-5, Accounting for the Costs of Start-Up
Activities. SOP 98-5 requires that pre-opening costs be expensed as incurred.
SOP 98-5 is effective for fiscal years beginning after December 15, 1998, and
the initial application should be reported as a cumulative effect of a change in
accounting principle. The Company will adopt SOP 98-5 in fiscal 1999 and will
record approximately $284,000 as a cumulative effect of a change in accounting
principle, net of taxes, during the first quarter of fiscal 1999.
In June 1998, the FASB issued FAS No. 133, Accounting for Derivative Instruments
and Hedging Activities. FAS No. 133, which is effective for fiscal years
beginning after June 15, 1999, requires all derivatives to be recognized in the
balance sheet as either assets or liabilities and measured at fair value. In
addition, all hedging relationships must be reassessed and documented pursuant
to the provisions of FAS No. 133. The Company will adopt FAS No. 133 for the
2000 fiscal year, but does not expect such adoption to materially affect
financial statement presentations.
28
<PAGE>
2. BUSINESS COMBINATIONS
1998
In January, May, June and December 1998, in four separate transactions, the
Company acquired the assets and assumed certain liabilities of five operating
natural foods supermarkets in Nashville, Tennessee, New York, New York, Santa
Barbara, California, Victoria, British Columbia, Canada, and Boulder, Colorado.
The purchase price for these acquisitions aggregated $10.6 million in cash and a
note payable of $3.1 million that was repaid in full on January 5, 1999 (see
Note 5). The acquisitions were accounted for using the purchase method, and the
excess of cost over the fair value of the assets acquired of $12.0 million was
allocated to goodwill, which is being amortized on a straight-line basis over 40
years.
The fair values of the acquired assets and liabilities of these acquisitions are
as follows (in thousands):
<TABLE>
<S> <C>
Current assets ($127 of cash) $ 1,304
Equipment 1,397
Other assets 25
Liabilities (1,022)
Goodwill 12,014
-------
$13,718
=======
</TABLE>
Also during 1998, the Company issued 133,363 shares of the Company's common
stock in exchange for all of the common stock of two companies operating natural
foods grocery stores in Columbus, Ohio and Little Rock, Arkansas. These
acquisitions were accounted for as poolings of interests, and accordingly, the
Company's consolidated financial statements for 1998 include the operations of
the stores for the entire year, adjusted to conform with the Company's
accounting policies and presentation. The Company's financial statements prior
to 1998 were not restated to include the results of these pooling transactions
as the effect is immaterial. Non-recurring, acquisition-related expenses of
$393,000 were recorded in conjunction with the poolings.
1997
In February, March and June 1997, in four separate transactions, the Company
acquired the assets and assumed certain liabilities of nine operating natural
foods supermarkets: two in south Florida, two in Eugene, Oregon, two in
Memphis, Tennessee, and three in Phoenix and Scottsdale, Arizona. The purchase
price for these acquisitions aggregated $15.0 million and consisted of $14.0
million in cash and 91,793 shares of the Company's common stock valued at
approximately $979,000. The acquisitions were accounted for using the purchase
method, and the excess of cost over the fair value of the assets acquired of
$10.3 million was allocated to goodwill, which is being amortized on a straight-
line basis over 40 years.
The fair values of the acquired assets and liabilities of these acquisitions are
as follows (in thousands):
<TABLE>
<S> <C>
Current assets ($27 of cash) $ 3,304
Equipment 3,782
Other assets 23
Liabilities (2,460)
Goodwill 10,338
-------
$14,987
=======
</TABLE>
1996
In July 1996, the Company acquired all of the outstanding common and preferred
stock of Alfalfa's, Inc. for $39.1 million, consisting of $16.2 million of cash,
issuance of 1,175,132 shares of common stock and options to acquire 186,152
shares of common stock valued at $14.2 million, issuance of 612,504 shares of
redeemable convertible Series D preferred stock valued at $7.7 million and $1.0
million of acquisition-related costs. The acquisition was accounted for using
the purchase method, and the excess of cost over the fair value of the assets
acquired of $27.8 million was allocated to goodwill, which is being amortized on
a straight-line basis over 40 years.
In May 1996, the Company acquired substantially all of the combined assets of
three related natural foods retail stores in Salt Lake City, Utah, in exchange
for total consideration of $2.2 million consisting of $500,000 in cash and $1.7
million in promissory notes. The acquisition was accounted for using the
purchase method, and the excess of cost over the fair value of the assets
acquired of $2.1 million was allocated to goodwill, which is being amortized on
a straight-line basis over 40 years.
The fair values of the acquired assets and liabilities of these acquisitions are
as follows (in thousands):
<TABLE>
<S> <C>
Current assets ($3,591 of cash) $ 8,507
Equipment 12,030
Other assets 523
Liabilities (9,738)
Goodwill 29,899
-------
$41,221
=======
</TABLE>
29
<PAGE>
The following unaudited pro forma combined results of operations of the Company
and the acquired businesses discussed above have been prepared as if the
transactions occurred as of the beginning of the respective periods (in
thousands):
<TABLE>
<CAPTION>
JAN. 2, DEC. 27, DEC. 28,
FISCAL YEAR ENDED 1999 1997 1996
- ----------------- -------- -------- --------
<S> <C> <C> <C>
Sales $416,691 $330,543 $242,318
Net income (loss) 12,006 7,554 (3,677)
Net income (loss) allocable to
common stock 12,006 7,554 (6,073)
Basic earnings (loss) per share $ 0.93 $ 0.71 $ (1.20)
Diluted earnings (loss) per share $ 0.90 $ 0.69 $ (1.20)
</TABLE>
The unaudited pro forma results above are not necessarily representative of the
actual results that would have occurred or may occur in the future, if the
transactions had been in effect on the dates indicated. The pre-merger
historical results of the acquired businesses discussed above are not reflected
in the Company's historical financial statements.
3. PROPERTY AND EQUIPMENT
Property and equipment consist of the following (in thousands):
<TABLE>
<CAPTION>
JAN. 2, DEC. 27,
FISCAL YEAR ENDED 1999 1997
- ----------------- --------- ---------
<S> <C> <C>
Machinery and equipment $ 57,928 $ 37,604
Leasehold improvements 39,462 18,898
Land and building 10,992 685
Construction in progress 17,609 14,983
-------- --------
Less accumulated depreciation 125,991 72,170
and amortization (28,113) (15,885)
-------- --------
$ 97,878 $ 56,285
======== ========
</TABLE>
The amounts shown above include $310,000 of machinery and equipment which are
accounted for as capitalized leases and which have accumulated amortization of
$258,000 at December 27, 1997. There were no fixed assets accounted for as
capitalized leases as of January 2, 1999.
4. ACCRUED LIABILITIES
Accrued liabilities consist of the following (in thousands):
<TABLE>
<CAPTION>
JAN. 2, DEC. 27,
FISCAL YEAR ENDED 1999 1997
- ----------------- ------- --------
<S> <C> <C>
Accrued wages and employee costs $ 7,481 $ 6,345
Accrued sales and property taxes 2,470 1,931
Deferred charges and other accruals 2,481 3,564
------- -------
$12,432 $11,840
======= =======
</TABLE>
5. NOTES PAYABLE AND LONG-TERM DEBT
Long-term debt outstanding consists of the following (in thousands):
<TABLE>
<CAPTION>
JAN. 2, DEC. 27,
1999 1997
------- --------
<S> <C> <C>
Notes payable to corporations and individuals:
Due January 5, 1999, bearing no interest,
secured by inventory and fixed assets $ 3,150
Due in monthly installments of $4,635
(including interest) through April 2017,
bearing interest at 10%, secured by
fixed assets, penalty for early repayment $ 475
------- --------
3,150 475
Less current portion (3,150) (8)
------- -------
$ - $ 467
======= =======
</TABLE>
30
<PAGE>
The Company has a $40.0 million revolving line of credit. The facility has a
seven-year term and bears interest, at the Company's option, at the prime rate
or LIBOR plus 1.25%. The line of credit agreement includes certain financial
and other covenants, as well as restrictions on payments of dividends. As of
January 2, 1999, there were no borrowings outstanding under this facility. In
March 1999, the Company increased its revolving line of credit to an $80.0
million commitment with a three-year term and bearing interest at the Company's
option, at the prime rate or LIBOR plus 0.65%.
6. INCOME TAXES
Income (loss) before income taxes consists of the following (in thousands):
<TABLE>
<CAPTION>
JAN. 2, DEC. 27, DEC. 28,
FISCAL YEAR ENDED 1999 1997 1996
- ----------------- -------- -------- ---------
<S> <C> <C> <C>
Domestic $18,579 $11,029 $(5,529)
Foreign 794 902 69
------- ------- -------
$19,373 $11,931 $(5,460)
======= ======= =======
</TABLE>
Income tax expense (benefit) consists of the following (in thousands):
<TABLE>
<CAPTION>
JAN. 2, DEC. 27, DEC. 28,
Fiscal Year Ended 1999 1997 1996
- ----------------- ------- ------- -------
<S> <C> <C> <C>
Current: Federal $ 5,685 $ 2,571 $ (114)
State and foreign 1,634 587
------- ------- -------
7,319 3,158 (114)
------- ------- -------
Deferred: Federal 430 1,728 (705)
State and foreign (24) 9 (158)
------- ------- -------
406 1,737 (863)
------- ------- -------
$ 7,725 $ 4,895 $ (977)
======= ======= =======
</TABLE>
The differences between the U.S. federal statutory income tax rate and the
Company's effective tax rate are as follows:
<TABLE>
<CAPTION>
JAN. 2, DEC. 27, DEC. 28,
FISCAL YEAR ENDED 1999 1997 1996
- ----------------- -------- --------- ----------
<S> <C> <C> <C>
Statutory tax rate 35.0% 34.0% (34.0%)
State income taxes, net of federal
income tax benefit 4.6 4.6 (3.8)
Tax effect of non-deductible goodwill 1.8 6.7 14.3
Other, net (1.4) (4.3) 5.6
---- ---- -----
Effective tax rate 40.0% 41.0% (17.9%)
==== ==== =====
</TABLE>
The tax effects of temporary differences that give rise to significant portions
of the deferred tax assets and deferred tax liabilities are as follows (in
thousands):
<TABLE>
<CAPTION>
JAN. 2, DEC. 27,
FISCAL YEAR ENDED 1999 1997
- ----------------- -------- ---------
<S> <C> <C>
Deferred tax assets
Inventory related $ 237 $ 326
Vacation accrual 724 574
Other accruals 352 502
Other 3 408
------- -------
Total deferred tax assets 1,316 1,810
------- -------
Deferred tax liabilities
Property related (2,462) (2,550)
------- -------
Total deferred tax liabilities (2,462) (2,550)
------- -------
Net deferred tax liability $(1,146) $ (740)
======= =======
</TABLE>
During 1997, the Company fully utilized U.S. net operating loss carryforwards of
approximately $1.9 million. Additionally, during 1997, the Company utilized
state net operating loss carryforwards of approximately $4.1 million and, as of
December 27, 1997, had state net operating loss carryforwards of approximately
$137,000. These state net operating loss carryforwards were fully utilized
during 1998.
31
<PAGE>
7. REDEEMABLE CONVERTIBLE PREFERRED STOCK
Upon the closing of the Company's initial public offering on October 22, 1996,
the Company's Series A, B, C, D and E redeemable convertible preferred stock
shares were converted into an aggregate of 3,484,213 shares of the Company's
common stock.
8. CAPITAL STOCK
The Company declared a 3:2 stock split for all stockholders of record as of
December 22, 1997, effective January 7, 1998. All shares and per-share prices
presented herein have been retroactively restated to reflect the stock split.
In December 1997, the Company completed a public offering of its common stock.
The proceeds from the sale of 2,083,542 shares of common stock at $22.48 per
share were approximately $46.5 million, net of the underwriting discount of $2.5
million and stock offering costs of $300,000.
The Company completed an initial public offering of its common stock on October
22, 1996. The proceeds from the sale of 2,100,000 shares of common stock at
$16.67 per share were approximately $31.4 million, net of the underwriting
discount of $2.5 million and stock offering costs of $1.1 million.
9. STOCK PLANS, OPTIONS AND WARRANTS
EMPLOYEE STOCK PURCHASE PLAN
In August 1996, the Company's board of directors approved and adopted the
Employee Stock Purchase Plan ("Purchase Plan") covering an aggregate of 191,538
shares of common stock. The Purchase Plan is intended to qualify as an employee
stock purchase plan within the meaning of Section 423 of the Internal Revenue
Code. Under the Purchase Plan, the board of directors may authorize
participation by eligible employees, including officers, in periodic offerings.
The offering period for any offering will be no more than 27 months. The board
authorized an offering commencing on the initial public offering date of October
22, 1996 and ending June 30, 1997, and sequential six-month offerings
thereafter.
Employees are eligible to participate in the currently authorized offerings if
they have been employed by the Company or an affiliate of the Company
incorporated in the United States for at least six months preceding October 22,
1996. Employees can have up to 15% of their earnings withheld pursuant to the
Purchase Plan (10% under the currently authorized offerings) and applied on
specified purchase dates (currently the last day of each authorized offering) to
the purchase of shares of common stock. The price of common stock purchased
under the Purchase Plan will be equal to 85% of the lower of the fair market
value of the common stock on the commencement date of each offering or the
relevant purchase date. As of January 2, 1999, there were approximately $43,000
of payroll deductions to be applied to purchase stock on June 30, 1999; as of
December 27, 1997, there were approximately $126,000 of payroll deductions which
purchased 8,607 shares of common stock on December 31, 1997.
EMPLOYEE STOCK OWNERSHIP PLAN
In conjunction with the acquisition of Alfalfa's in July 1996, the Company
assumed an employee stock ownership plan ("ESOP") for Alfalfa's employees who
were participants at the time of the acquisition. Following the acquisition,
the Company discontinued contributions to the ESOP. In January 1998, the Company
received a favorable determination letter from the Internal Revenue Service,
authorizing termination of the ESOP and distribution of the ESOP shares. The
75,078 shares of the Company's common stock held in trust as of December 27,
1997, were distributed to the ESOP participants, pursuant to the terms of the
ESOP, in February 1998.
1996 EQUITY INCENTIVE PLAN
The Company's 1996 Equity Incentive Plan (the "Incentive Plan") was adopted by
the board of directors in August 1996 as an amendment and restatement of the
Company's 1993 Stock Option Plan (the "1993 Plan"). The board designated all
shares formerly available for issuance under the 1993 Plan and the 1991 Option
Plan (the "1991 Plan") of Alfalfa's following the July 1996 acquisition of
Alfalfa's to be available for issuance under the Incentive Plan. The board also
amended the 1993 Plan and the 1991 Plan to transfer to the Incentive Plan any
shares of common stock that are subject to an option which expires or otherwise
terminates prior to exercise. At plan adoption, 1,235,147 shares of common
stock were reserved for issuance under the Incentive Plan. In May 1998, an
additional 825,000 shares of common stock were reserved for issuance under the
Incentive Plan, pursuant to stockholder vote and approval.
The Incentive Plan provides for the grant of incentive stock options to
employees (including officers and employee-directors) and nonqualified stock
options, restricted stock purchase awards and stock bonuses to employees and
directors. The exercise price of options granted under the Incentive Plan is
determined by the board of directors, provided that the exercise price for an
incentive stock option cannot be less than 100% of the fair market value of the
common stock on the grant date and the exercise price for a nonqualified stock
option cannot be less than 85% of the fair market value of the common stock on
the grant date. Outstanding options generally vest ratably over a period of
five years and generally expire ten years from the grant date.
WARRANTS
A five-year warrant to purchase 5,269 shares of the Company's common stock at an
exercise price of $14.21 per share was outstanding at January 2, 1999. The
warrant expires on November 14, 1999.
32
<PAGE>
FAIR VALUES
The Company applies Accounting Principles Board Opinion No. 25 and related
Interpretations in accounting for its stock plans. Accordingly, no compensation
expense has been recognized for these plans. Had compensation cost for these
plans been determined based on the fair value at the grant dates as prescribed
by FAS No. 123, Accounting for Stock-Based Compensation, the Company's net
income (loss) allocable to common stock and basic and diluted earnings (loss)
per share would have been reduced to the pro forma amounts indicated below:
<TABLE>
<CAPTION>
1998 1997 1996
------- ------ --------
<S> <C> <C> <C>
Net income (loss) allocable to
common stock
As reported $11,648 $7,036 $(6,879)
Pro forma $ 9,856 $6,730 $(7,309)
Basic earnings (loss) per share
As reported $ 0.90 $ 0.67 $ (1.35)
Pro forma $ 0.76 $ 0.64 $ (1.44)
Diluted earnings (loss) per share
As reported $ 0.87 $ 0.64 $ (1.35)
Pro forma $ 0.74 $ 0.61 $ (1.44)
</TABLE>
The fair value of the employees' purchase rights was estimated using the Black-
Scholes model with the following weighted-average assumptions:
<TABLE>
<CAPTION>
1998 1997 1996
------ ------ ------
<S> <C> <C> <C>
Estimated dividends None None None
Expected volatility 46% 51% 51%
Risk-free interest rate 4.5% 5.5% 5.6%
Expected life (years) 0.5 0.5 0.7
Weighted-average fair value per share $6.99 $5.53 $4.92
</TABLE>
The fair value of each option grant under the Incentive Plan is estimated on the
date of grant using the Black-Scholes option-pricing model with the following
weighted-average assumptions:
<TABLE>
<CAPTION>
1998 1997 1996
--------- ----- ---------
<S> <C> <C> <C>
Estimated dividends None None None
Expected volatility 46% 49% 51%
Risk-free interest rate 4.5%-4.7% 5.8% 5.6%-7.1%
Expected life (years) 7 7 7
</TABLE>
A summary of the status of the Company's Incentive Plan as of the 1998, 1997 and
1996 fiscal year ends and changes during the years ending on those dates is
presented below:
<TABLE>
<CAPTION>
WEIGHTED
NUMBER AVERAGE
OF EXERCISE
Shares PRICE
--------- --------
<S> <C> <C>
Outstanding as of
December 30, 1995 470,539 $ 7.97
Granted 704,029 $10.07
Forfeited (64,311) $ 9.79
Exercised (76,380) $ 3.90
---------
Outstanding as of
December 28, 1996 1,033,877 $ 9.42
Granted 295,479 $16.36
Forfeited (150,934) $10.68
Exercised (243,577) $ 7.06
---------
Outstanding as of
December 27, 1997 934,845 $11.93
Granted 231,074 $26.86
Forfeited (67,697) $16.66
Exercised (151,986) $ 9.04
---------
Outstanding as of
January 2, 1999 946,236 $15.73
=========
</TABLE>
33
<PAGE>
At January 2, 1999, options exercisable for 954,995 shares were available for
future grant under the Incentive Plan. At December 27, 1997 and December 28,
1996, options exercisable for 350,242 and 411,269 shares with weighted average
exercise prices of $10.82 and $7.38, respectively, were exercisable. The
weighted-average grant-date per-share fair values of options granted during
1998, 1997 and 1996 were $26.23, $16.36 and $11.27, respectively.
The following table summarizes information about incentive and nonqualified
stock options outstanding and exercisable at January 2, 1999:
<TABLE>
<CAPTION>
OPTIONS OUTSTANDING OPTIONS EXERCISABLE
WEIGHTED-
RANGE OF NUMBER REMAINING AVERAGE
EXERCISE OUTSTANDING CONTRACTUAL EXERCISE NUMBER WEIGHTED AVERAGE
PRICES LIFE PRICE EXERCISABLE EXERCISE PRICE
- -------------- ----------- ----------- --------- ----------- ----------------
<S> <C> <C> <C> <C> <C>
$2.65-6.58 75,897 4.9 years $ 5.24 75,314 $ 5.23
$7.81-12.67 509,254 7.3 $11.12 263,780 $11.09
$16.67-22.67 95,311 8.6 $18.80 38,632 $18.53
$24.00-26.33 179,149 9.3 $24.70 18,562 $24.04
$26.50-36.00 86,625 9.5 $30.11 2,235 $28.94
------- -------
946,236 7.8 $15.73 398,523 $11.41
======= =======
</TABLE>
10. LITIGATION
Alfalfa's Canada, Inc., a Canadian subsidiary of the Company, is a defendant in
a suit brought in the Supreme Court of British Columbia, by one of its
distributors, Waysafer Wholefoods Limited and one of its principals, seeking
monetary damages for breach of contract and injunctive relief to enforce a
buying agreement for the three Canadian stores entered into by a predecessor of
Alfalfa's Canada. Under the buying agreement, the stores must buy products
carried by the plaintiff if such are offered at the current advertised price of
its competitors. The suit was filed in September 1996. In June 1998, the
Company filed a Motion for Dismissal on the grounds that the contract in dispute
constituted a restraint of trade. The Motion was subsequently denied. The
Company does not believe its potential exposure in connection with the suit to
be material.
The Company also is named as defendant in various actions and proceedings
arising in the normal course of business. In all of these cases, the Company is
denying the allegations and is vigorously defending against them and, in some
cases, has filed counterclaims. Although the eventual outcome of the various
lawsuits cannot be predicted, it is management's opinion that these lawsuits
will not result in liabilities that would materially affect the Company's
financial position or results of operations.
11. COMMITMENTS
The Company has numerous operating leases related to facilities occupied and
store equipment. These leases generally contain renewal provisions at the
option of the Company. Total rental expense (consisting of minimum rent and
contingent rent) under these leases was $13.5 million, $10.9 million and $7.6
million during 1998, 1997 and 1996, respectively.
Future minimum lease payments under noncancelable operating leases as of January
2, 1999 are summarized as follows (in thousands):
<TABLE>
<CAPTION>
Fiscal year ending
<S> <C>
1999 $ 18,585
2000 20,845
2001 20,027
2002 19,913
2003 19,501
Thereafter 161,223
--------
Total minimum lease payments $260,094
========
</TABLE>
Minimum rentals for operating leases do not include contingent rentals which may
become due under certain lease terms which provide that rentals may be increased
based on a percentage of sales. During 1998, 1997 and 1996, the Company paid
contingent rentals of $534,000, $376,000 and $270,000, respectively.
12. NON-RECURRING EXPENSES
During 1998, a $393,000 non-recurring charge was recorded in conjunction with
two pooling-of-interests transactions (see Note 2). The non-recurring charge
consists of $201,000 of employee severance costs, $162,000 of inventory and
fixed asset write-downs, and $30,000 of lease cancellation costs. As of January
2, 1999, the remaining accrued liabilities related to the non-recurring charge
totaled $22,000.
34
<PAGE>
During 1996, the Company's Board of Directors made the following decisions
relating to the Company's operations, which resulted in an approximate $7.0
million non-recurring charge being recorded. Specifically, as a direct result
of the July 1996 acquisition of Alfalfa's, the Company incurred $2.0 million by:
(1) closing the Wild Oats Lawrence, Kansas store as well as a regional bakery
and kitchen; (2) moving out of its existing corporate headquarters and
relocating to Alfalfa's; and (3) consolidating certain information systems,
thereby abandoning certain Wild Oats hardware and software. In addition, after
operating the combined businesses, management closed the Alfalfa's Seattle,
Washington store and a restaurant in a Capers, Vancouver, British Columbia store
which, at the time of the acquisition, it had planned to retain. These closures
resulted in the remaining $5.0 million of the charge. Components of the non-
recurring charge consist primarily of lease cancellation costs ($1.0 million),
employee severance and relocation costs ($300,000) and losses on disposal or
abandonment of certain assets ($5.7 million).
Cash paid for employee severance, relocation and lease cancellation costs
related to the non-recurring charge totalled approximately $900,000 in 1997.
During 1997, management adjusted certain accruals related to the non-recurring
charge, including a $500,000 reduction following the settlement of a property-
related obligation. At December 27, 1997, there were no remaining accrued
liabilities related to the non-recurring charge.
13. 401(K) PLAN
The Company maintains a tax-qualified employee savings and retirement plan (the
"401(k) Plan") covering the Company's employees. Pursuant to the 401(k) Plan,
eligible employees may elect to reduce their current compensation by up to the
lesser of 15% of their annual compensation or the statutorily prescribed annual
limit ($10,000 in 1998) and have the amount of such reduction contributed to the
401(k) Plan. The 401(k) Plan provides for additional matching contributions to
the 401(k) Plan by the Company in an amount determined by the Company prior to
the end of each plan year. Total Company contributions during 1998, 1997 and
1996 were approximately $408,000, $256,000 and $95,000, respectively. The
trustees of the 401(k) Plan, at the direction of each participant, invest the
assets of the 401(k) Plan in designated investment options. The 401(k) Plan is
intend to qualify under Section 401 of the Internal Revenue Code.
14. STOCKHOLDER RIGHTS PLAN
The Company has adopted a stockholder rights plan having both "flip-in" and
"flip-over" provisions. Stockholders of record as of May 22, 1998 received the
right ("Right") to purchase a fractional share of preferred stock at a purchase
price of $145 for each share of common stock held. In addition, until the
Rights become exercisable as described below and in certain limited
circumstances thereafter, the Company will issue one Right for each share of
common stock issued after May 22, 1998. For the "flip-in provision," the Rights
would become exercisable only if a person or group acquires beneficial ownership
of 15% (the "Threshold Percentage") or more of the outstanding common stock.
Holdings of certain existing affiliates of the Company are excluded from the
Threshold Percentage. In that event, all holders of Rights other than the
person or group who acquired the Threshold Percentage would be entitled to
purchase shares of common stock at a substantial discount to the then-current
market price. This right to purchase common stock at a discount would be
triggered as of a specified number of days following the passing of the
Threshold Percentage. For the "flip-over" provision, if the Company was
acquired in a merger or other business combination or transaction, the holders
of such Rights would be entitled to purchase shares of the acquiror's common
stock at a substantial discount.
15. QUARTERLY INFORMATION (UNAUDITED)
The following interim financial information presents the 1998 and 1997
consolidated results of operations on a quarterly basis (in thousands, except
per-share amounts):
<TABLE>
<CAPTION>
QUARTER ENDED
JAN. 2, SEPT. 26, JUNE 27, MARCH 28,
1999 1998 1998 1998
-------- ------- ------- -------
<S> <C> <C> <C> <C>
Statement of Operations Data:
Sales $111,795 $96,796 $98,663 $91,603
Gross profit 34,678 30,134 30,786 28,479
Net income 3,339 3,001 2,604 2,704
Basic earnings per
common share $ 0.26 $ 0.23 $ 0.20 $ 0.21
Diluted earnings
per common share $ 0.25 $ 0.22 $ 0.19 $ 0.20
</TABLE>
35
<PAGE>
<TABLE>
<CAPTION>
QUARTER ENDED 1997
DEC. 27 SEPT. 27 JUNE 28 MARCH 29
------- ------- ------- -------
<S> <C> <C> <C> <C>
Statement of Operations Data:
Sales $84,716 $79,955 $76,677 $69,729
Gross profit 26,007 24,696 23,274 21,944
Net income 1,970 1,832 1,677 1,557
Basic earnings per
common share $ 0.18 $ 0.17 $ 0.16 $ 0.15
Diluted earnings
per common share $ 0.17 $ 0.17 $ 0.16 $ 0.15
</TABLE>
16. RELATED PARTY TRANSACTION
Elizabeth C. Cook and Michael C. Gilliland, executive officers and directors of
the Company, are trustees of Wild Oats Community Foundation ("Foundation"), a
non-profit organization. In 1998, the Foundation opened Wild Oats Wellness
Centers in Boulder, Colorado and Albuquerque, New Mexico in space subleased from
the Company. The Foundation pays to the Company the same rent as paid by the
Company for the space. There are no material transactions between the Company
and the Foundation.
17. SUBSEQUENT EVENTS (UNAUDITED)
On February 1, 1999, the Company acquired the operations of three existing
natural foods supermarkets in Tucson, Arizona. The purchase price for this
acquisition aggregated $18.4 million in cash. The acquisition was accounted for
using the purchase method, and the excess of cost over the fair value of the
assets acquired of $16.8 million was allocated to goodwill, which is being
amortized on a straight-line basis over 40 years.
36
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and Stockholders of Wild Oats Markets, Inc.
In our opinion, the accompanying consolidated balance sheet and the related
consolidated statements of operations, of changes in stockholders' equity
(deficit) and of cash flows present fairly, in all material respects, the
financial position of Wild Oats Markets, Inc. and its subsidiaries (the
"Company") at January 2, 1999 and December 27, 1997 and the results of their
operations and their cash flows for each of the three years in the period ended
January 2, 1999, in conformity with generally accepted accounting principles.
These financial statements are the responsibility of the Company's management;
our responsibility is to express an opinion on these financial statements based
on our audits. We conducted our audits of these statements in accordance with
generally accepted auditing standards which require that we plan and perform the
audit to obtain reasonable assurance about whether the financial statements are
free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements,
assessing the accounting principles used and significant estimates made by
management, and evaluating the overall financial statement presentation. We
believe that our audits provide a reasonable basis for the opinion expressed
above.
PRICEWATERHOUSECOOPERS LLP
Denver, Colorado
January 29, 1999
37
<PAGE>
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS
ON ACCOUNTING AND FINANCIAL DISCLOSURE
None reported.
PART III.
Item 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The information included under the captions "Election of Directors" and
"Executive Compensation-Management-Executive Officers" in the Company's
definitive Proxy Statement in connection with the Annual Meeting of stockholders
to be held May 5, 1999, to be filed with the Commission on or before May 2,
1999, is incorporated herein by reference.
ITEM 11. EXECUTIVE COMPENSATION
The information included under the caption "Executive Compensation" in the
Company's definitive Proxy Statement in connection with the Annual Meeting of
stockholders to be held May 5, 1999, to be filed with the Commission on or
before May 2, 1999, is incorporated herein by reference.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL
OWNERS AND MANAGEMENT
The information included under the caption "Security Ownership of Certain
Beneficial Owners and Management" in the Company's definitive Proxy Statement in
connection with the Annual Meeting of stockholders to be held May 5, 1999, to be
filed with the Commission on or before May 2, 1999, is incorporated herein by
reference.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information included under the caption "Directors and Executive
Officers - Certain Transactions" in the Company's definitive Proxy Statement in
connection with the Annual Meeting of stockholders to be held May 5, 1999, to be
filed with the Commission on or before May 2, 1999, is incorporated herein by
reference.
PART IV.
Item 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES
AND REPORTS ON FORM 8-K
(a) The following are filed as a part of this Report on Form 10-K:
(1) Consolidated Statement of Operations
Consolidated Balance Sheet
Consolidated Statement of Changes in Stockholders' Equity (Deficit)
Consolidated Statement of Cash Flows
(2) Schedule II - Valuation and Qualifying Accounts
(b) Reports on Form 8-K. One report on Form 8-K was filed on May 5, 1998
relating to the adoption of the Stockholder Rights Plan dated May 22,
1998.
38
<PAGE>
(c) Exhibits
The following exhibits to this Form 10-K are filed pursuant to the
requirements of Item 601 of Regulation S-K:
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------ -----------------------
3(i).1.(a)** Amended and Restated Certificate of Incorporation of the
Registrant. (1)
3(i).1.(b)** Certificate of Correction to Amended and Restated
Certificate of Incorporation of the Registrant. (1)
3(ii).1** Amended and Restated By-Laws of the Registrant. (1)
4.1** Reference is made to Exhibits 3(i).1 through 3(ii).1.
4.2** Specimen stock certificate. (2)
4.3** Stockholders Rights Plan dated May 22, 1998 (5)
10.1** Form of Indemnity Agreement between the Registrant and its
directors and executive officers, with related schedule. (2)
10.2#** 1996 Equity Incentive Plan, including forms of Options
granted to employees and non-employee directors thereunder.
(2)
10.3#** 1996 Employee Stock Purchase Plan. (2)
10.4#** 1993 Stock Option Plan. (2)
10.5#** 1991 Stock Option Plan. (2)
10.6#** Employee Stock Ownership Plan. (2)
10.7#** Employment Agreement between Registrant and Michael C.
Gilliland, dated July 12, 1996, as amended. (2)
10.8#** Employment Agreement between Registrant and Elizabeth C.
Cook, dated July 12, 1996, as amended. (2)
10.9** Warrant to purchase Series C Preferred Stock issued to
Montgomery Securities dated November 14, 1994. (2)
10.10** Amended and Restated Stockholders Agreement among the
Registrant and certain parties named therein dated August
1996. (2)
10.11** Registration Rights Agreement between the Registrant and
certain parties named therein dated July 12, 1996. (2)
10.12+ Revolving Loan Agreement dated as of March 2, 1999 among
Wild Oats Markets, Inc., the Lenders Named Herein and Wells
Fargo Bank, National Association, as Administrative Agent.
10.13** Lease Agreement between Registrant and Bway Property Limited
Partnership for the property located at 1651 Broadway,
Boulder, CO dated October 11, 1982. (2)
10.14** Amendment to Lease Agreement between Registrant and Bway
Property Limited Partnership dated March 9, 1995 for the
properties located at 1651 Broadway, Boulder, CO. (2)
10.15** Lease Agreement between Registrant and Overland Outfitters,
Inc. for the property located at 1655 Broadway, Boulder, CO
dated April 10, 1989. (2)
10.16** Lease between Registrant and AGF Property Management Corp.
for the property located at 1111-23 South Washington Street,
Denver, CO dated October 12, 1994. (2)
10.17#** Employment Agreement between Registrant and James Lee, dated
September 30, 1996. (2)
10.18** Agreement and Plan of Merger between the Registrant,
Alfalfa's, Inc. and WO Holdings, Inc. dated June 4, 1996.
(2)
21.1+ List of subsidiaries.
23.1+ Consent of PricewaterhouseCoopers LLP.
27.1+ Financial Data Schedule - Year Ended January 2, 1999.
___________________
#Management Compensation Plan.
**Previously filed.
+Included herewith.
39
<PAGE>
(1) Incorporated by reference from the Registrant's Form 10-K for the year
ended December 28, 1996. (File No. 0-21577)
(2) Incorporated by reference from the Registrant's Registration Statement on
Form S-1 (File No. 333-11261) filed on August 30, 1996
(3) Incorporated by reference from the Registrant's Form 10-Q for the quarter
ended June 28, 1997 (File No. 0-21577)
(4) Incorporated by reference from the Registrant's Form 10-Q for the quarter
ended September 26, 1998 (File No. 0-21577)
(5) Incorporated by reference from the Registrant's Form 8-K filed on May 5,
1998 (File No. 0-21577)
40
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
Wild Oats Markets, Inc.
(Registrant)
Date: March 12, 1999 By: /s/ Mary Beth Lewis
---------------------
Mary Beth Lewis
Executive Officer, Treasurer and Chief
Financial Officer
(Principal Financial and Accounting
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.
Signature Title Date
--------- ----- ----
/s/ Michael C. Gilliland Chief Executive Officer March 12, 1999
- -----------------------------
and Director
/s/ James W. Lee President and Chief Operating March 12, 1999
- -----------------------------
Officer
/s/ Mary Beth Lewis Chief Financial Officer March 12, 1999
- -----------------------------
/s/ John A. Shields Chairman March 12, 1999
- -----------------------------
/s/ Elizabeth C. Cook Executive Vice President March 12, 1999
- -----------------------------
and Director
/s/ David M. Chamberlain Vice Chairman March 12, 1999
- -----------------------------
/s/ Brian K. Devine Director March 12, 1999
- -----------------------------
/s/ David L. Ferguson Director March 12, 1999
- -----------------------------
/s/ James B. McElwee Director March 12, 1999
- -----------------------------
/s/ Morris J. Siegel Director March 12, 1999
- -----------------------------
41
<PAGE>
SCHEDULE II
WILD OATS MARKETS, INC.
Valuation and Qualifying Accounts
(IN THOUSANDS)
<TABLE>
<CAPTION>
BALANCE AT CHARGED BALANCE AT
ALLOWANCE FOR DOUBTFUL ACCOUNTS BEGINNING TO END
FOR THE FISCAL YEAR ENDED: OF YEAR EXPENSES WRITE-OFFS OF YEAR
<S> <C> <C> <C> <C>
December 28, 1996 47 252 299
December 27, 1997 299 273 (358) 214
January 2, 1999 214 55 (110) 159
</TABLE>
42
<PAGE>
REVOLVING LOAN AGREEMENT
Dated as of March 2, 1999
among
WILD OATS MARKETS, INC.
THE LENDERS HEREIN NAMED
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C>
Article 1 DEFINITIONS AND ACCOUNTING TERMS..................................... 1
1.1 Defined Terms............................................................ 1
1.2 Use of Defined Terms..................................................... 27
1.3 Accounting Terms......................................................... 27
1.4 Rounding................................................................. 28
1.5 Exhibits and Schedules................................................... 28
1.6 References to "Borrower and its Subsidiaries"............................ 28
1.7 Miscellaneous Terms...................................................... 28
Article 2 LOANS AND LETTERS OF CREDIT.......................................... 28
2.1 Loans-General............................................................ 28
2.2 Alternate Base Rate Loans................................................ 30
2.3 Eurodollar Rate Loans.................................................... 30
2.4 Letters of Credit........................................................ 31
2.5 Voluntary Reduction of Commitments....................................... 35
2.6 Optional Termination of Commitments...................................... 35
2.7 Administrative Agent's Right to Assume Funds Available for Advances...... 35
2.8 Swing Line............................................................... 36
Article 3 PAYMENTS AND FEES.................................................... 38
3.1 Principal and Interest................................................... 38
3.2 Arrangement Fee.......................................................... 40
3.3 Participation Fee........................................................ 40
3.4 Agency Fee............................................................... 40
3.5 Commitment Fee........................................................... 40
3.6 Letter of Credit Fees.................................................... 41
3.7 Increased Commitment Costs............................................... 41
3.8 Eurodollar Costs and Related Matters..................................... 42
3.9 Late Payments............................................................ 46
3.10 Computation of Interest and Fees......................................... 46
</TABLE>
-i-
<PAGE>
<TABLE>
<S> <C>
3.11 Non-Banking Days......................................................... 46
3.12 Manner and Treatment of Payments......................................... 47
3.13 Funding Sources.......................................................... 48
3.14 Failure to Charge Not Subsequent Waiver.................................. 48
3.15 Administrative Agent's Right to Assume Payments Will be Made............. 49
3.16 Fee Determination Detail................................................. 49
3.17 Survivability............................................................ 49
Article 4 REPRESENTATIONS AND WARRANTIES....................................... 49
4.1 Existence and Qualification; Power; Compliance With Laws................. 49
4.2 Authority; Compliance With Other Agreements and Instruments and
Government Regulations.................................................. 50
4.3 No Governmental Approvals Required....................................... 50
4.4 Subsidiaries............................................................. 51
4.5 Financial Statements..................................................... 52
4.6 No Other Liabilities; No Material Adverse Changes........................ 52
4.7 Title to and Location of Property........................................ 52
4.8 Intangible Assets........................................................ 52
4.9 Public Utility Holding Company Act....................................... 52
4.10 Litigation............................................................... 53
4.11 Binding Obligations...................................................... 53
4.12 No Default............................................................... 53
4.13 ERISA.................................................................... 53
4.14 Regulation U; Investment Company Act..................................... 54
4.15 Disclosure............................................................... 54
4.16 Tax Liability............................................................ 54
4.17 Projections.............................................................. 54
4.18 Hazardous Materials...................................................... 54
4.19 Solvency................................................................. 55
Article 5 AFFIRMATIVE COVENANTS (OTHER THAN INFORMATION AND REPORTING
REQUIREMENTS)....................................................... 55
5.1 Payment of Taxes and Other Potential Liens............................... 55
5.2 Preservation of Existence................................................ 55
5.3 Maintenance of Properties................................................ 56
</TABLE>
-ii-
<PAGE>
<TABLE>
<S> <C>
5.4 Maintenance of Insurance................................................. 56
5.5 Compliance With Laws..................................................... 56
5.6 Inspection Rights........................................................ 56
5.7 Keeping of Records and Books of Account.................................. 56
5.8 Compliance With Agreements............................................... 57
5.9 Use of Proceeds.......................................................... 57
5.10 Hazardous Materials Laws................................................. 57
5.11 Future Subsidiaries...................................................... 57
5.12 Year 2000 Compliance..................................................... 57
5.13 Syndication Process...................................................... 58
Article 6 NEGATIVE COVENANTS................................................... 58
6.1 Prepayment of Indebtedness............................................... 58
6.2 Disposition of Property.................................................. 58
6.3 Mergers.................................................................. 58
6.4 Acquisitions............................................................. 59
6.5 Distributions............................................................ 59
6.6 ERISA.................................................................... 59
6.7 Change in Nature of Business............................................. 60
6.8 Liens and Negative Pledges............................................... 60
6.9 Indebtedness and Guaranty Obligations.................................... 61
6.10 Transactions with Affiliates............................................. 61
6.11 Funded Debt Ratio........................................................ 62
6.12 Fixed Charge Coverage Ratio.............................................. 62
6.13 Stockholders' Equity..................................................... 62
6.14 Investments.............................................................. 62
6.15 Subsidiary Indebtedness.................................................. 63
Article 7 INFORMATION AND REPORTING REQUIREMENTS............................... 64
7.1 Financial and Business Information....................................... 64
7.2 Compliance Certificates.................................................. 66
Article 8 CONDITIONS........................................................... 67
8.1 Initial Advances, Etc.................................................... 67
</TABLE>
-iii-
<PAGE>
<TABLE>
<S> <C>
8.2 Advances Under Line B Commitment........................................ 69
8.3 Any Advance, Etc........................................................ 69
Article 9 EVENTS OF DEFAULT AND REMEDIES UPON EVENT
OF DEFAULT.......................................................... 71
9.1 Events of Default....................................................... 71
9.2 Remedies Upon Event of Default.......................................... 73
Article 10 THE ADMINISTRATIVE AGENT............................................ 76
10.1 Appointment and Authorization........................................... 76
10.2 Administrative Agent and Affiliates..................................... 76
10.3 Proportionate Interest in any Collateral................................ 77
10.4 Lenders' Credit Decisions............................................... 77
10.5 Action by Administrative Agent.......................................... 77
10.6 Liability of Administrative Agent....................................... 78
10.7 Indemnification......................................................... 80
10.8 Successor Administrative Agent.......................................... 80
10.9 No Obligations of Borrower.............................................. 81
Article 11 MISCELLANEOUS....................................................... 82
11.1 Cumulative Remedies; No Waiver.......................................... 82
11.2 Amendments; Consents.................................................... 82
11.3 Costs and Expenses...................................................... 83
11.4 Nature of Lenders' Obligations.......................................... 83
11.5 Survival of Representations and Warranties.............................. 84
11.6 Notices................................................................. 84
11.7 Execution of Loan Documents............................................. 84
11.8 Binding Effect; Assignment.............................................. 85
11.9 Right of Setoff......................................................... 88
11.10 Sharing of Setoffs...................................................... 88
11.11 Indemnity by Borrower................................................... 88
11.12 Nonliability of the Lenders............................................. 90
11.13 No Third Parties Benefited.............................................. 91
11.14 Confidentiality......................................................... 91
</TABLE>
-iv-
<PAGE>
<TABLE>
<S> <C>
11.15 Further Assurances...................................................... 92
11.16 Integration............................................................. 92
11.17 Governing Law........................................................... 92
11.18 Severability of Provisions.............................................. 92
11.19 Headings................................................................ 93
11.20 Time of the Essence..................................................... 93
11.21 Foreign Lenders and Participants........................................ 93
11.22 Hazardous Material Indemnity............................................ 94
11.23 Arbitration............................................................. 95
11.24 Waiver of Right to Trial by Jury........................................ 97
11.25 Purported Oral Amendments............................................... 97
</TABLE>
-v-
<PAGE>
Exhibits
--------
A - Commitments Assignment and Acceptance
B - Compliance Certificate
C - Line A Note
D - Line B Note
E - Opinion of Counsel
F - Pricing Certificate
G - Request for Letter of Credit
H - Request for Loan
I - Subsidiary Guaranty
Schedules
- ---------
1.1 Lender Commitments
4.4 Subsidiaries
4.7 Existing Liens and Rights of Others
4.10 Material Litigation
4.18 Hazardous Materials Matters
6.9 Existing Indebtedness and Guaranty Obligations
6.14 Existing Investments
-vi-
<PAGE>
REVOLVING LOAN AGREEMENT
------------------------
Dated as of March 2, 1999
This REVOLVING LOAN AGREEMENT ("Agreement") is entered into by and
among Wild Oats Markets, Inc., a Delaware corporation ("Borrower"), each lender
whose name is set forth on the signature pages of this Agreement and each lender
which may hereafter become a party to this Agreement pursuant to Section 11.8
----
(collectively, the "Lenders" and individually, a "Lender"), and Wells Fargo
Bank, National Association, as Administrative Agent.
In consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree as follows:
Article 1
DEFINITIONS AND ACCOUNTING TERMS
--------------------------------
1.1 Defined Terms. As used in this Agreement, the following
-------------
terms shall have the meanings set forth below:
"Acquired Company" means the Person whose assets or capital stock is
----------------
the subject of an Acquisition.
"Acquisition" means any transaction, or any series of related
-----------
transactions, consummated after the Closing Date, by which Borrower and/or
any of its Subsidiaries directly or indirectly (a) acquires any ongoing
business or all or substantially all of the assets of any Person engaged in
any ongoing business, whether through purchase of assets, merger or
otherwise, (b) acquires control of securities of a Person engaged in an
ongoing business representing more than 50% of the ordinary voting power
for the election of directors or other governing position if the business
affairs of such Person are managed by a board of directors or other
governing body or (c) acquires control of more than 50% of the ownership
interest in any partnership, joint venture, limited liability company,
business trust or other Person engaged in an ongoing business that is not
managed by a board of directors or other governing body.
-1-
<PAGE>
"Adjusted EBITDA" means, with respect to any fiscal period, EBITDA for
---------------
that fiscal period adjusted by adding thereto any write-down in, or reserve
--------
against, the book value of assets acquired in an Acquisition during that
fiscal period taken substantially concurrently with such Acquisition.
"Administrative Agent" means Wells Fargo Bank, National Association,
--------------------
when acting in its capacity as the Administrative Agent under any of the
Loan Documents, or any successor Administrative Agent.
"Administrative Agent's Office" means the Administrative Agent's
-----------------------------
address as set forth on the signature pages of this Agreement, or such
other address as the Administrative Agent hereafter may designate by
written notice to Borrower and the Lenders.
"Advance" means any advance made or to be made by any Lender to
-------
Borrower as provided in Article 2, and includes each Alternate Base Rate
--------- --------
Advance and Eurodollar Rate Advance.
"Affiliate" means, as to any Person, any other Person which directly
---------
or indirectly controls, or is under common control with, or is controlled
by, such Person. As used in this definition, "control" (and the
correlative terms, "controlled by" and "under common control with") shall
mean possession, directly or indirectly, of power to direct or cause the
direction of management or policies (whether through ownership of
securities or partnership or other ownership interests, by contract or
otherwise); provided that, in any event, any Person that owns, directly or
--------
indirectly, 10% or more of the securities having ordinary voting power for
the election of directors or other governing body of a corporation that has
more than 100 record holders of such securities, or 10% or more of the
partnership or other ownership interests of any other Person that has more
than 100 record holders of such interests, will be deemed to be an
Affiliate of such corporation, partnership or other Person.
"Agreement" means this Revolving Loan Agreement, either as originally
---------
executed or as it may from time to time be supplemented, modified, amended,
restated or extended.
"Aggregate Effective Amount" means as of any date of determination and
--------------------------
with respect to all Letters of Credit then outstanding, the sum of (a) the
---
-2-
<PAGE>
aggregate effective face amounts of all such Letters of Credit not then
paid by the Issuing Lender plus (b) the aggregate amounts paid by the
----
Issuing Lender under such Letters of Credit not then reimbursed to the
Issuing Lender by Borrower pursuant to Section 2.4(d) and not the subject
------
of Advances made pursuant to Section 2.4(e).
------
"Alternate Base Rate" means, as of any date of determination, the rate
-------------------
per annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal to
the higher of (a) the Prime Rate in effect on such date and (b) the Federal
---------
Funds Rate in effect on such date plus 1/2 of 1% (50 basis points).
"Alternate Base Rate Advance" means an Advance made hereunder and
---------------------------
specified to be an Alternate Base Rate Advance in accordance with Article
-------
2.
-
"Alternate Base Rate Loan" means a Loan made hereunder and specified
------------------------
to be an Alternate Base Rate Loan in accordance with Article 2.
---------
"Applicable Eurodollar Rate Margin" means, for each Pricing Period,
---------------------------------
the interest rate margin set forth below (expressed in basis points per
annum) opposite the Applicable Pricing Level for that Pricing Period:
<TABLE>
<CAPTION>
Applicable
Pricing Level Margin
--------------- ------
<S> <C>
I 65.0
II 90.0
III 115.0
IV 140.0
</TABLE>
"Applicable Pricing Level" means (a) for the Pricing Period commencing
------------------------
on the Closing Date and ending on May 15, 1999, Pricing Level I and (b)
`for each subsequent Pricing Period, the pricing level set forth below
opposite the Funded Debt Ratio as of the last day of the Fiscal Quarter
most recently ended prior to the commencement of that Pricing Period:
-3-
<PAGE>
<TABLE>
<CAPTION>
Pricing Level Funded Debt Ratio
------------- -----------------
<S> <C>
I Less than 1.00 to 1.00
II Equal to or greater than 1.00 to 1.00,
but less than 1.50 to 1.00
III Equal to or greater than 1.50 to 1.00,
but less than 2.25 to 1.00
IV Equal to or greater than 2.25 to 1.00
</TABLE>
provided that (i) in the event that Borrower does not deliver a Pricing
--------
Certificate with respect to any Pricing Period prior to the commencement of
such Pricing Period, then until (but only until) such Pricing Certificate
is delivered the Applicable Pricing Level for that Pricing Period shall be
the next higher Pricing Level (if there is a higher Pricing Level) and (ii)
if any Pricing Certificate is subsequently determined to be in error, then
any resulting change in the Applicable Pricing Level shall be made
retroactively to the beginning of the relevant Pricing Period.
"Applicable Standby Letter of Credit Fee Rate" means, as of any date
--------------------------------------------
of determination, the then effective Applicable Eurodollar Rate Margin.
"Banking Day" means any Monday, Tuesday, Wednesday, Thursday or
-----------
Friday, other than a day on which banks are authorized or required to be
----------
closed in California, Colorado or New York.
"Capital Lease Obligations" means all monetary obligations of a Person
-------------------------
under any leasing or similar arrangement which, in accordance with GAAP, is
classified as a capital lease.
"Cash" means, when used in connection with any Person, all monetary
----
and non-monetary items owned by that Person that are treated as cash in
accordance with GAAP, consistently applied.
"Cash Equivalents" means, when used in connection with any Person,
----------------
that Person's Investments in:
(a) Government Securities due within one year after the date of
the making of the Investment;
-4-
<PAGE>
(b) readily marketable direct obligations of any State of the
United States of America or any political subdivision of any such State or
any public agency or instrumentality thereof given on the date of such
Investment a credit rating of at least Aa by Moody's Investors Service,
Inc. or AA by Standard & Poor's Rating Group (a division of McGraw-Hill,
Inc.), in each case due within one year from the making of the Investment;
(c) certificates of deposit issued by, bank deposits in,
Eurodollar deposits through, bankers' acceptances of, and repurchase
agreements covering Government Securities executed by any Lender or any
bank incorporated under the Laws of the United States of America, any State
thereof or the District of Columbia and having on the date of such
Investment combined capital, surplus and undivided profits of at least
$250,000,000, or total assets of at least $5,000,000,000, in each case due
within one year after the date of the making of the Investment;
(d) certificates of deposit issued by, bank deposits in,
Eurodollar deposits through, bankers' acceptances of, and repurchase
agreements covering Government Securities executed by any Lender or any
branch or office located in the United States of America of a bank
incorporated under the Laws of any jurisdiction outside the United States
of America having on the date of such Investment combined capital, surplus
and undivided profits of at least $500,000,000, or total assets of at least
$15,000,000,000, in each case due within one year after the date of the
making of the Investment;
(e) repurchase agreements covering Government Securities executed
by a broker or dealer registered under Section 15(b) of the Securities
Exchange Act of 1934, as amended, having on the date of the Investment
capital of at least $50,000,000, due within 90 days after the date of the
making of the Investment; provided that the maker of the Investment
--------
receives written confirmation of the transfer to it of record ownership of
the Government Securities on the books of a "primary dealer" in such
Government Securities or on the books of such registered broker or dealer,
as soon as practicable after the making of the Investment;
(f) readily marketable commercial paper or other debt
-5-
<PAGE>
securities issued by corporations doing business in and incorporated under
the Laws of the United States of America or any State thereof or of any
corporation that is the holding company for a bank described in clause (c)
-
or (d) above given on the date of such Investment a credit rating of at
-
least P-1 by Moody's Investors Service, Inc. or A-1 by Standard & Poor's
Rating Group (a division of McGraw-Hill, Inc.), in each case due within one
year after the date of the making of the Investment;
(g) "money market preferred stock" issued by a corporation
incorporated under the Laws of the United States of America or any State
thereof (i) given on the date of such Investment a credit rating of at
least Aa by Moody's Investors Service, Inc. and AA by Standard & Poor's
Rating Group (a division of McGraw-Hill, Inc.), in each case having an
investment period not exceeding 50 days or (ii) to the extent that
investors therein have the benefit of a standby letter of credit issued by
a Lender or a bank described in clauses (c) or (d) above; provided that (y)
- - --------
the amount of all such Investments issued by the same issuer does not
exceed $5,000,000 and (z) the aggregate amount of all such Investments does
not exceed $15,000,000;
(h) a readily redeemable "money market mutual fund" sponsored by
a bank described in clause (c) or (d) hereof, or a registered broker or
- -
dealer described in clause (e) hereof, that has and maintains an investment
-
policy limiting its investments primarily to instruments of the types
described in clauses (a) through (g) hereof and given on the date of such
- -
Investment a credit rating of at least Aa by Moody's Investors Service,
Inc. and AA by Standard & Poor's Rating Group (a division of McGraw-Hill,
Inc.); and
(i) corporate notes or bonds having an original term to maturity
of not more than one year issued by a corporation incorporated under the
Laws of the United States of America, or a participation interest therein;
provided that (i) commercial paper issued by such corporation is given on
--------
the date of such Investment a credit rating of at least Aa by Moody's
Investors Service, Inc. and AA by Standard & Poor's Rating Group (a
division of McGraw-Hill, Inc.), (ii) the amount of all such Investments
issued by the same issuer does not exceed $5,000,000 and (iii) the
aggregate amount of all such Investments does not exceed $15,000,000.
-6-
<PAGE>
"Certificate" means a certificate signed by a Senior Officer or
-----------
Responsible Official (as applicable) of the Person providing the
certificate.
"Change in Control" means (a) any transaction or series of related
-----------------
transactions in which any Unrelated Person or two or more Unrelated Persons
acting in concert acquire beneficial ownership (within the meaning of Rule
13d-3(a)(1) under the Securities Exchange Act of 1934, as amended),
directly or indirectly, of more than 50% of the outstanding Common Stock,
(b) Borrower consolidates with or merges into another Person or conveys,
transfers or leases its properties and assets substantially as an entirety
to any Person or any Person consolidates with or merges into Borrower, in
either event pursuant to a transaction in which the outstanding Common
Stock is changed into or exchanged for cash, securities or other property,
with the effect that any Unrelated Person becomes the beneficial owner,
directly or indirectly, of more than 50% or more of Common Stock or that
the Persons who were the holders of Common Stock immediately prior to the
transaction hold less than 50% of the common stock of the surviving
corporation after the transaction, (c) during any period of 24 consecutive
months, individuals who at the beginning of such period constituted the
board of directors of Borrower (together with any new or replacement
directors whose election by the board of directors, or whose nomination for
election, was approved by a vote of at least a majority of the directors
then still in office who were either directors at the beginning of such
period or whose election or nomination for reelection was previously so
approved) cease for any reason to constitute a majority of the directors
then in office or (d) a "change in control" as defined in any document
governing Indebtedness of Borrower in excess of $20,000,000 which gives the
holders of such Indebtedness the right to accelerate or otherwise require
payment or purchase of such Indebtedness prior to the maturity date
thereof. For purposes of the foregoing, the term "Unrelated Person" means
----------------
any Person other than (i) an Affiliate of Borrower as of the Closing Date,
----- ----
(ii) an employee stock ownership plan or other employee benefit plan
covering the employees of Borrower and its Subsidiaries or (iii) any of
Michael Gilliland, Elizabeth Cook, or Mark R. Clapp (or any of their
immediate family members or trusts for the benefit of any of such Persons)
or Chase Capital Partners.
"Change in Management" means (a) the cessation for any reason of
--------------------
Michael Gilliland to be a member of the Board of Directors of Borrower and
the
-7-
<PAGE>
failure of Borrower to appoint a successor acceptable to the Requisite
Lenders within the sixty (60) day period following such cessation, (b) the
cessation for any reason of Michael Gilliland or James W. Lee to hold the
office of Chief Executive Officer (or, if there then is no such office or
occupant of such office, the office of President) of Borrower and the
failure of Borrower to appoint a successor acceptable to the Requisite
Lenders within the sixty (60) day period following such cessation or (c)
the cessation for any reason of Mary Beth Lewis to hold the office of Chief
Financial Officer of Borrower and the failure of Borrower to appoint a
successor acceptable to the Requisite Lenders within the sixty (60) day
period following such cessation. If any of such individuals ceases to hold
the respective office set forth in the preceding sentence, Borrower shall
notify the Administrative Agent of the proposed successor as soon as
practicable and the Administrative Agent shall (after consultation with the
Lenders) promptly (and in any event within ten (10) Banking Days) notify
Borrower whether such proposed successor is or is not acceptable to the
Requisite Lenders. A determination by the Requisite Lenders that a
proposed successor is not acceptable shall be made solely on grounds that
are reasonable from the standpoint of a lender to Borrower. If the
Administrative Agent has not notified Borrower within ten (10) Banking Days
whether a proposed successor is or is not acceptable, then the sixty (60)
day period within which the successor must be appointed shall be extended
until the date that is five (5) Banking Days after the Administrative Agent
so notifies Borrower.
"Closing Date" means the time and Banking Day on which the conditions
------------
set forth in Section 8.1 are satisfied or waived. The Administrative Agent
---
shall notify Borrower and the Lenders of the date that is the Closing Date.
"Code" means the Internal Revenue Code of 1986, as amended or replaced
----
and as in effect from time to time.
"Commercial Letter of Credit" means each Letter of Credit issued to
---------------------------
support the purchase of goods by Borrower which is determined to be a
commercial letter of credit by the Issuing Lender.
"Commitments" means, collectively, the Line A Commitment and the Line
-----------
B Commitment.
-8-
<PAGE>
"Commitments Assignment and Acceptance" means a commitment assignment
-------------------------------------
and acceptance substantially in the form of Exhibit A.
---------
"Common Stock" means the common stock of Borrower or its successor.
------------
"Compliance Certificate" means a certificate in the form of Exhibit B,
---------------------- ---------
properly completed and signed by a Senior Officer of Borrower.
"Contractual Obligation" means, as to any Person, any provision of any
----------------------
outstanding security issued by that Person or of any material agreement,
instrument or undertaking to which that Person is a party or by which it or
any of its Property is bound.
"Debtor Relief Laws" means the Bankruptcy Code of the United States of
------------------
America, as amended from time to time, and all other applicable
liquidation, conservatorship, bankruptcy, moratorium, rearrangement,
receivership, insolvency, reorganization, or similar debtor relief Laws
from time to time in effect affecting the rights of creditors generally.
"Default" means any event that, with the giving of any applicable
-------
notice or passage of time specified in Section 9.1, or both, would be an
---
Event of Default.
"Default Rate" means the interest rate prescribed in Section 3.9.
------------ ---
"Designated Deposit Account" means a deposit account to be maintained
--------------------------
by Borrower with Wells Fargo Bank, National Association or one of its
Affiliates, as from time to time designated by Borrower by written
notification to the Administrative Agent.
"Designated Eurodollar Market" means, with respect to any Eurodollar
----------------------------
Rate Loan, the London Eurodollar Market.
"Disqualified Stock" means any capital stock, warrants, options or
------------------
other rights to acquire capital stock (but excluding any debt security
which is convertible, or exchangeable, for capital stock), which, by its
terms (or by the terms of any security into which it is convertible or for
which it is exchangeable), or
-9-
<PAGE>
upon the happening of any event, matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or is redeemable at the
option of the holder thereof, in whole or in part, on or prior to the
Maturity Date.
"Disposition" means the sale, transfer or other disposition in any
-----------
single transaction or series of related transactions of any asset, or group
of related assets, of Borrower or any of its Subsidiaries (a) which asset
or assets constitute a line of business or substantially all the assets of
Borrower and its Subsidiaries or (b) the aggregate amount of the net sales
proceeds of such assets is more than $5,000,000, other than (i) inventory
----- ----
or other assets sold or otherwise disposed of in the ordinary course of
business of Borrower or its Subsidiary and (ii) equipment sold or otherwise
disposed of where substantially similar equipment in replacement thereof is
acquired within 90 days thereafter by Borrower or its Subsidiary.
"Distribution" means, with respect to any shares of capital stock or
------------
any warrant or option to purchase an equity security or other equity
security issued by a Person, (a) the retirement, redemption, purchase or
other acquisition for Cash or for Property by such Person of any such
security, (b) the declaration or (without duplication) payment by such
Person of any dividend in Cash or in Property on or with respect to any
such security, (c) any Investment by such Person in the holder of 5% or
more of any such security if a purpose of such Investment is to avoid
characterization of the transaction as a Distribution and (d) any other
payment in Cash or Property by such Person constituting a distribution
under applicable Laws with respect to such security.
"Dollars" or "$" means United States of America dollars.
------- -
"EBITDA" means, with respect to any fiscal period, the sum of (a) Net
------ --- --
Income for that period, plus (b) any non-operating non-recurring loss
----
reflected in such Net Income, minus (c) any non-operating non-recurring
-----
gain reflected in such Net Income, plus (d) Interest Expense of Borrower
----
and its Subsidiaries for that period, plus (e) the aggregate amount of
----
federal and state taxes on or measured by income of Borrower and its
Subsidiaries for that period (whether or not payable during that period),
plus (f) depreciation, amortization and all other non-cash expenses of
----
Borrower and its Subsidiaries for that period, in
-10-
<PAGE>
each case as determined in accordance with GAAP, consistently applied.
"EBITDAR" means, with respect to any fiscal period, Adjusted EBITDA
-------
for that fiscal period plus Rental Expense of Borrower and its Subsidiaries
----
for that fiscal period.
"Eligible Assignee" means (a) another Lender, (b) with respect to any
-----------------
Lender, any Affiliate of that Lender, (c) any commercial bank having total
assets of $5,000,000,000 or more, (d) any (i) savings bank, savings and
loan association or similar financial institution or (ii) insurance company
engaged in the business of writing insurance which, in either case (A) has
total assets of $5,000,000,000 or more, (B) is engaged in the business of
lending money and extending credit under credit facilities substantially
similar to those extended under this Agreement and (C) is operationally and
procedurally able to meet the obligations of a Lender hereunder to the same
degree as a commercial bank and (e) any other financial institution
(including a mutual fund or other fund) having total assets of
---------
$5,000,000,000 or more which meets the requirements set forth in subclauses
(B) and (C) of clause (d) above; provided that each Eligible Assignee must
--------
either (aa) be organized under the Laws of the United States of America,
any State thereof or the District of Columbia or (bb) be organized under
the Laws of the Cayman Islands or any country which is a member of the
Organization for Economic Cooperation and Development, or a political
subdivision of such a country, and (i) act hereunder through a branch,
agency or funding office located in the United States of America and (ii)
be exempt from withholding of tax on interest and deliver the documents
related thereto pursuant to Section 11.21.
-----
"ERISA" means the Employee Retirement Income Security Act of 1974, and
-----
any regulations issued pursuant thereto, as amended or replaced and as in
effect from time to time.
"ERISA Affiliate" means each Person (whether or not incorporated)
---------------
which is required to be aggregated with Borrower pursuant to Section 414 of
the Code.
"Eurodollar Banking Day" means any Banking Day on which dealings in
----------------------
Dollar deposits are conducted by and among banks in the Designated
Eurodollar
-11-
<PAGE>
Market.
"Eurodollar Base Rate" means, with respect to any Eurodollar Rate
--------------------
Loan, the average of the interest rates per annum (rounded upward, if
necessary, to the next 1/16 of 1%) at which deposits in Dollars are offered
to banks in the Designated Eurodollar Market as shown on Telerate Page
3750, which is the British Bankers' Association's coverage of interbank
offered rates for Dollar Deposits in London based on quotations of sixteen
(16) major banks, at or about 11:00 a.m. local time in the Designated
Eurodollar Market, two (2) Eurodollar Banking Days before the first day of
the applicable Eurodollar Period in an aggregate amount approximately equal
to the amount of the Advance to be made by the Administrative Agent with
respect to such Eurodollar Rate Loan and for a period of time comparable to
the number of days in the applicable Eurodollar Period.
"Eurodollar Lending Office" means, as to each Lender, its office or
-------------------------
branch so designated by written notice to Borrower and the Administrative
Agent as its Eurodollar Lending Office. If no Eurodollar Lending Office is
designated by a Lender, its Eurodollar Lending Office shall be its office
at its address for purposes of notices hereunder.
"Eurodollar Market" means a regular established market located outside
-----------------
the United States of America by and among banks for the solicitation, offer
and acceptance of Dollar deposits in such banks.
"Eurodollar Obligations" means eurocurrency liabilities, as defined in
----------------------
Regulation D or any comparable regulation of any Governmental Agency having
jurisdiction over any Lender.
"Eurodollar Period" means, as to each Eurodollar Rate Loan, the period
-----------------
commencing on the date specified by Borrower pursuant to Section 2.1(c) and
------
ending 1, 2, 3 or 6 months (or, with the written consent of all of the
Lenders, any other period) thereafter, as specified by Borrower in the
applicable Request for Loan; provided that:
--------
(a) The first day of any Eurodollar Period shall be a Eurodollar
Banking Day;
-12-
<PAGE>
(b) Any Eurodollar Period that would otherwise end on a day that
is not a Eurodollar Banking Day shall be extended to the immediately
succeeding Eurodollar Banking Day unless such Eurodollar Banking Day
falls in another calendar month, in which case such Eurodollar Period
shall end on the immediately preceding Eurodollar Banking Day;
(c) No Eurodollar Period with respect to a Line A Loan shall
extend beyond the Line A Maturity Date; and
(d) No Eurodollar Period with respect to a Line B Loan shall
extend beyond the Line B Maturity Date.
"Eurodollar Rate" means, as of any date of determination, the rate of
---------------
interest per annum (rounded upward, if necessary, to the next 1/100 of 1%)
determined as follow:
Eurodollar Base Rate
--------------------
1.00 minus Eurodollar Reserve Percentage
-----
"Eurodollar Rate Advance" means an Advance made hereunder and
-----------------------
specified to be a Eurodollar Rate Advance in accordance with Article 2.
---------
"Eurodollar Rate Loan" means a Loan made hereunder and specified to be
--------------------
a Eurodollar Rate Loan in accordance with Article 2.
---------
"Eurodollar Reserve Percentage" means, as of any date of
-----------------------------
determination, the maximum reserve percentage (expressed as a decimal,
rounded upward to the next 1/100th of 1%) in effect on such day (whether or
not applicable to any Lender) under regulations issued from time to time by
the Board of Governors of the Federal Reserve System for determining the
maximum reserve requirement (including any emergency, supplemental or other
---------
marginal reserve requirement) with respect to "eurocurrency liabilities".
"Event of Default" shall have the meaning provided in Section 9.1.
---------------- ---
"Federal Funds Rate" means, as of any date of determination, the rate
------------------
set
-13-
<PAGE>
forth in the weekly statistical release designated as H.15(519), or any
successor publication, published by the Federal Reserve Board (including
any such successor, "H.15(519)") for such date opposite the caption
"Federal Funds (Effective)". If for any relevant date such rate is not yet
published in H.15(519), the rate for such date will be the rate set forth
in the daily statistical release designated as the Composite 3:30 p.m.
Quotations for U.S. Government Securities, or any successor publication,
published by the Federal Reserve Bank of New York (including any such
successor, the "Composite 3:30 p.m. Quotation") for such date under the
caption "Federal Funds Effective Rate". If on any relevant date the
appropriate rate for such date is not yet published in either H.15(519) or
the Composite 3:30 p.m. Quotations, the rate for such date will be the
arithmetic mean of the rates for the last transaction in overnight Federal
funds arranged prior to 9:00 a.m. (New York City time) on that date by each
of three leading brokers of Federal funds transactions in New York City
selected by the Administrative Agent. For purposes of this Agreement, any
change in the Alternate Base Rate due to a change in the Federal Funds Rate
shall be effective as of the opening of business on the effective date of
such change.
"Fiscal Quarter" means the fiscal quarter of Borrower consisting of 13
--------------
or 14 weeks ending on or about each March 31, June 30, September 30 and
December 31.
"Fiscal Year" means the fiscal year of Borrower consisting of 52 or 53
-----------
weeks ending on the Saturday nearest each December 31.
"Fixed Charge Coverage Ratio" means, as of the last day of any Fiscal
---------------------------
Quarter, the ratio of (a) EBITDAR for the fiscal period consisting of the
--------
four (4) Fiscal Quarters ended on that date to (b) the sum of (i) Interest
-- ------
Expense of Borrower and its Subsidiaries for such fiscal period plus (ii)
----
Rental Expense of Borrower and its Subsidiaries for such fiscal period.
"Funded Debt Ratio" means, as of the last day of each Fiscal Quarter,
-----------------
the ratio of (a) the sum of (i) all Indebtedness of Borrower and its
-------- ------
Subsidiaries on that date other than Indebtedness evidenced by the Notes
----------
plus (ii) the average daily balance of Indebtedness evidenced by the Notes
----
for the thirty (30) day period ended on that date plus (iii) the Aggregate
----
Effective Amount of all
-14-
<PAGE>
Standby Letters of Credit outstanding on that date to (b) the sum of (i)
-- ------
Adjusted EBITDA for the fiscal period consisting of the four (4) Fiscal
Quarters ended on that date plus (ii) Proforma EBITDA with respect to an
----
Acquired Company for that portion of such fiscal period prior to the
Acquisition of that Acquired Company.
"GAAP" means, as of any date of determination, accounting principles
----
(a) set forth as generally accepted in then currently effective Opinions of
the Accounting Principles Board of the American Institute of Certified
Public Accountants, (b) set forth as generally accepted in then currently
effective Statements of the Financial Accounting Standards Board or (c)
that are then approved by such other entity as may be approved by a
significant segment of the accounting profession in the United States of
America. The term "consistently applied," as used in connection therewith,
--------------------
means that the accounting principles applied are consistent in all material
respects with those applied at prior dates or for prior periods.
"Government Securities" means readily marketable (a) direct full faith
---------------------
and credit obligations of the United States of America or obligations
guaranteed by the full faith and credit of the United States of America and
(b) obligations of an agency or instrumentality of, or corporation owned,
controlled or sponsored by, the United States of America that are generally
considered in the securities industry to be implicit obligations of the
United States of America.
"Governmental Agency" means (a) any international, foreign, federal,
-------------------
state, county or municipal government, or political subdivision thereof,
(b) any governmental or quasi-governmental agency, authority, board,
bureau, commission, department, instrumentality or public body or (c) any
court or administrative tribunal of competent jurisdiction.
"Guaranty Obligation" means, as to any Person, any (a) guarantee by
-------------------
that Person of Indebtedness of, or other obligation performable by, any
other Person or (b) assurance given by that Person to an obligee of any
other Person with respect to the performance of an obligation by, or the
financial condition of, such other Person, whether direct, indirect or
contingent, including any purchase or repurchase agreement covering such
---------
obligation or any collateral security therefor, any agreement to provide
funds (by means of loans, capital
-15-
<PAGE>
contributions or otherwise) to such other Person, any agreement to support
the solvency or level of any balance sheet item of such other Person or any
"keep-well" or other arrangement of whatever nature given for the purpose
of assuring or holding harmless such obligee against loss with respect to
any obligation of such other Person; provided, however, that the term
-------- -------
Guaranty Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Guaranty Obligation in respect of Indebtedness shall be deemed to be an
amount equal to the stated or determinable amount of the related
Indebtedness (unless the Guaranty Obligation is limited by its terms to a
lesser amount, in which case to the extent of such amount) or, if not
stated or determinable, the maximum reasonably anticipated liability in
respect thereof as determined by the Person in good faith. The amount of
any other Guaranty Obligation shall be deemed to be zero unless and until
the amount thereof has been (or in accordance with Financial Accounting
Standards Board Statement No. 5 should be) quantified and reflected or
disclosed in the consolidated financial statements (or notes thereto) of
Borrower.
"Hazardous Materials" means substances defined as "hazardous
-------------------
substances" pursuant to the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. (S) 9601 et seq., or as
"hazardous", "toxic" or "pollutant" substances or as "solid waste" pursuant
to the Hazardous Materials Transportation Act, 49 U.S.C. (S) 1801, et seq.,
the Resource Conservation and Recovery Act, 42 U.S.C. (S) 6901, et seq., or
as "friable asbestos" pursuant to the Toxic Substances Control Act, 15
U.S.C. (S) 2601 et seq. or any other applicable Hazardous Materials Law, in
each case as such Laws are amended from time to time.
"Hazardous Materials Laws" means all Laws governing the treatment,
------------------------
transportation or disposal of Hazardous Materials applicable to any of the
Real Property.
"Inactive Subsidiary" means a Subsidiary of Borrower that (a) is not
-------------------
engaged in any active or passive business and (b) holds total assets of
$100,000 or less.
"Indebtedness" means, as to any Person (without duplication),
------------
-16-
<PAGE>
(a) indebtedness of such Person for borrowed money or for the deferred
purchase price of Property (excluding trade and other accounts payable in
---------
the ordinary course of business in accordance with ordinary trade terms),
including any Guaranty Obligation for any such indebtedness, (b)
---------
indebtedness of such Person of the nature described in clause (a) that is
-
non-recourse to the credit of such Person but is secured by assets of such
Person, to the extent of the fair market value of such assets as determined
in good faith by such Person, (c) Capital Lease Obligations of such Person,
(d) indebtedness of such Person arising under bankers' acceptance
facilities or under facilities for the discount of accounts receivable of
such Person, (e) any direct or contingent obligations of such Person under
letters of credit issued for the account of such Person and (f) any net
obligations of such Person under Interest Rate Protection Agreements.
"Insolvent" means, with respect to a Person, that the Person (a) has,
---------
at a "fair valuation", liabilities (including contingent, unmatured,
---------
disputed, legal, equitable, secured and unsecured liabilities) in excess of
its assets, (b) is generally not paying its debts when due, (c) does not
have, based on reasonable projections at the time, sufficient cash flow to
pay its debts as they mature, (d) has "unreasonably small capital" for the
business in which it is engaged or (e) is "insolvent." Terms in quotation
marks in this definition are used with the meanings therefor under the
Uniform Fraudulent Transfer Act.
"Intangible Assets" means assets that are considered intangible assets
-----------------
under GAAP, including customer lists, goodwill, covenants not to compete,
---------
copyrights, trade names, trademarks and patents.
"Interest Expense" means, with respect to any Person and as of the
----------------
last day of any fiscal period, the sum of (a) all interest, fees, charges
------
and related expenses paid or payable (without duplication) for that fiscal
period by that Person to a lender in connection with borrowed money
(including any obligations for fees, charges and related expenses payable
----------
to the issuer of any letter of credit) or the deferred purchase price of
assets that are considered "interest expense" under GAAP plus (b) the
----
portion of rent paid or payable (without duplication) for that fiscal
period by that Person under Capital Lease Obligations that should be
treated as interest in accordance with Financial Accounting Standards Board
Statement No. 13.
-17-
<PAGE>
"Interest Rate Protection Agreement" means a written agreement between
----------------------------------
Borrower and one or more financial institutions providing for "swap",
"cap", "collar" or other interest rate protection with respect to any
Indebtedness.
"Investment" means, when used in connection with any Person, any
----------
investment by or of that Person, whether by means of purchase or other
acquisition of stock or other securities of any other Person or by means of
a loan, advance creating a debt (excluding trade and other advances made in
---------
the ordinary course of business in accordance with ordinary trade terms),
capital contribution, guaranty or other debt or equity participation or
interest in any other Person, including any partnership and joint venture
---------
interests of such Person. The amount of any Investment shall be the amount
actually invested (minus any return of capital with respect to such
-----
Investment which has actually been received in Cash or has been converted
into Cash), without adjustment for subsequent increases or decreases in the
value of such Investment.
"Issuing Lender" means Wells Fargo Bank, National Association.
--------------
"Laws" means, collectively, all international, foreign, federal, state
----
and local statutes, treaties, rules, regulations, ordinances, codes and
administrative or judicial precedents.
"Lead Arranger" means Wells Fargo Bank, National Association.
-------------
"Lender" means each lender whose name is set forth in the signature
------
pages of this Agreement and each lender which may hereafter become a party
to this Agreement pursuant to Section 11.8.
----
"Letters of Credit" means any of the Commercial Letters of Credit or
-----------------
Standby Letters of Credit issued by the Issuing Lender under the Line A
Commitment pursuant to Section 2.4, either as originally issued or as the
---
same may be supplemented, modified, amended, renewed, extended or
supplanted.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
----
assignment for security, security interest, encumbrance, lien or charge of
any kind, whether voluntarily incurred or arising by operation of Law or
otherwise,
-18-
<PAGE>
affecting any Property, including any conditional sale or other title
---------
retention agreement, any lease in the nature of a security interest, and/or
the filing of any financing statement (other than a precautionary financing
----- ----
statement with respect to a lease that is not in the nature of a security
interest) under the Uniform Commercial Code or comparable Law of any
jurisdiction with respect to any Property.
"Line A Commitment" means, subject to Sections 2.5 and 2.6,
----------------- --- ---
$55,000,000. The respective Pro Rata Shares of the Lenders with respect to
the Line A Commitment are set forth in Schedule 1.1.
------------
"Line A Loan" means a Loan under the Line A Commitment.
-----------
"Line A Maturity Date" means March 2, 2002.
--------------------
"Line A Note" means any of the promissory notes made by Borrower to a
-----------
Lender evidencing Advances under that Lender's Pro Rata Share of the Line A
Commitment substantially in the form of Exhibit C, either as originally
---------
executed or as the same may from time to time be supplemented, modified,
amended, renewed, extended or supplanted.
"Line B Commitment" means, subject to Sections 2.5 and 2.6,
----------------- --- ---
$25,000,000. The respective Pro Rata Shares of the Lenders with respect to
the Line B Commitment are set forth in Schedule 1.1.
------------
"Line B Loan" means a Loan under the Line B Commitment.
-----------
"Line B Maturity Date" means March 1, 2000.
--------------------
"Line B Note" means any of the promissory notes made by Borrower to a
-----------
Lender evidencing Advances under that Lender's Pro Rata Share of the Line B
Commitment substantially in the form of Exhibit D, either as originally
---------
executed or as the same may from time to time be supplemented, modified,
amended, renewed, extended or supplanted.
"Loan" means the aggregate of the Advances made at any one time by the
----
Lenders pursuant to Section 2.1.
---
-19-
<PAGE>
"Loan Documents" means, collectively, this Agreement, the Notes, the
--------------
Subsidiary Guaranty and any other agreements of any type or nature
hereafter executed and delivered by Borrower or any Subsidiary Guarantor to
the Administrative Agent or to any Lender in any way relating to or in
furtherance of this Agreement, in each case either as originally executed
or as the same may from time to time be supplemented, modified, amended,
restated, extended or supplanted.
"Margin Stock" means "margin stock" as such term is defined in
------------
Regulation U.
"Material Adverse Effect" means any set of circumstances or events
-----------------------
which (a) has had or could reasonably be expected to have any material
adverse effect whatsoever upon the validity or enforceability of any Loan
Document, (b) has been or could reasonably be expected to be material and
adverse to the business or condition (financial or otherwise) of Borrower
and its Subsidiaries, taken as a whole or (c) has materially impaired or
could reasonably be expected to materially impair the ability of Borrower
to perform the Obligations; provided that any event or circumstance caused
--------
by or resulting from the failure of a Lender to perform its obligations
under this Agreement shall not be deemed a Material Adverse Effect.
"Multiemployer Plan" means any employee benefit plan of the type
------------------
described in Section 4001(a)(3) of ERISA to which Borrower or any of its
ERISA Affiliates contributes or is obligated to contribute.
"Negative Pledge" means a Contractual Obligation which contains a
---------------
covenant binding on Borrower or any of its Subsidiaries that prohibits
Liens on any of its Property, other than (a) any such covenant contained in
----- ----
a Contractual Obligation granting or relating to a particular Lien which
affects only the Property that is the subject of such Lien, (b) any such
covenant contained in a Contractual Obligation relating to a particular
Property which affects only such Property and (c) any such covenant that
does not apply to Liens securing the Obligations.
"Net Income" means, with respect to any fiscal period, the
----------
consolidated
-20-
<PAGE>
net income of Borrower and its Subsidiaries for that period, determined in
accordance with GAAP, consistently applied.
"Notes" means, collectively, the Line A Notes and the Line B Notes.
-----
"Obligations" means all present and future obligations of every kind
-----------
or nature of Borrower at any time and from time to time owed to the
Administrative Agent or the Lenders or any one or more of them, under any
one or more of the Loan Documents, whether due or to become due, matured or
unmatured, liquidated or unliquidated, or contingent or noncontingent,
including obligations of performance as well as obligations of payment, and
---------
including interest that accrues after the commencement of any proceeding
---------
under any Debtor Relief Law by or against Borrower.
"Opinion of Counsel" means the favorable written legal opinion of
------------------
Freya R. Brier, general counsel to Borrower, substantially in the form of
Exhibit E, together with copies of all factual certificates and legal
---------
opinions delivered to such counsel in connection with such opinion upon
which such counsel has relied.
"Party" means any Person other than the Administrative Agent and the
-----
Lenders, which now or hereafter is a party to any of the Loan Documents.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
----
thereof established under ERISA.
"Pension Plan" means any "employee pension benefit plan" (as such term
------------
is defined in Section 3(20 of ERISA), other than a Multiemployer Plan,
----------
which is subject to Title IV of ERISA and is maintained by Borrower or to
which Borrower contributes or has an obligation to contribute.
"Permitted Encumbrances" means:
----------------------
(a) Inchoate Liens incident to construction on or maintenance of
Property; or Liens incident to construction on or maintenance of
Property now or hereafter filed of record for which adequate reserves
have been set aside as may be required by GAAP (or deposits made
-21-
<PAGE>
pursuant to applicable Law) and which are being contested in good
faith by appropriate proceedings and have not proceeded to judgment,
provided that, by reason of nonpayment of the obligations secured by
--------
such Liens, no such Property is subject to a material impending risk
of loss or forfeiture;
(b) Liens for taxes and assessments on Property which are not
yet past due; or Liens for taxes and assessments on Property for which
adequate reserves have been set aside as may be required by GAAP and
are being contested in good faith by appropriate proceedings and have
not proceeded to judgment, provided that, by reason of nonpayment of
--------
the obligations secured by such Liens, no such Property is subject to
a material impending risk of loss or forfeiture;
(c) defects and irregularities in title to any Property which in
the aggregate do not materially impair the fair market value or use of
the Property for the purposes for which it is or may reasonably be
expected to be held;
(d) easements, exceptions, reservations, or other agreements for
the purpose of pipelines, conduits, cables, wire communication lines,
power lines and substations, streets, trails, walkways, drainage,
irrigation, water, and sewerage purposes, dikes, canals, ditches, the
removal of oil, gas, coal, or other minerals, and other like purposes
affecting Property which in the aggregate do not materially burden or
impair the fair market value or use of such Property for the purposes
for which it is or may reasonably be expected to be held;
(e) easements, exceptions, reservations, or other agreements for
the purpose of facilitating the joint or common use of Property in or
adjacent to a shopping center or similar project affecting Property
which in the aggregate do not materially burden or impair the fair
market value or use of such Property for the purposes for which it is
or may reasonably be expected to be held;
(f) rights reserved to or vested in any Governmental Agency to
control or regulate, or obligations or duties to any Governmental
Agency
-22-
<PAGE>
with respect to, the use of any Property;
(g) rights reserved to or vested in any Governmental Agency to
control or regulate, or obligations or duties to any Governmental
Agency with respect to, any right, power, franchise, grant, license,
or permit;
(h) present or future zoning laws and ordinances or other laws
and ordinances restricting the occupancy, use, or enjoyment of
Property;
(i) statutory Liens, other than those described in clauses (a)
-
or (b) above, arising in the ordinary course of business with respect
-
to obligations which are not delinquent or are being contested in good
faith, provided that, if delinquent, adequate reserves have been set
--------
aside with respect thereto as may be required by GAAP and, by reason
of nonpayment, no Property is subject to a material impending risk of
loss or forfeiture;
(j) covenants, conditions, and restrictions affecting the use of
Property which in the aggregate do not materially impair the fair
market value or use of the Property for the purposes for which it is
or may reasonably be expected to be held;
(k) rights of tenants under leases and rental agreements
covering Property entered into in the ordinary course of business of
the Person owning such Property;
(l) Liens consisting of pledges or deposits to secure
obligations under workers' compensation laws or similar legislation,
including Liens of judgments thereunder which are not currently
dischargeable;
(m) Liens consisting of pledges or deposits of Property to
secure performance in connection with operating leases made in the
ordinary course of business, provided the aggregate value of all such
--------
pledges and deposits in connection with all such leases does not at
any time exceed 20% of the annual fixed rentals payable under all such
leases;
-23-
<PAGE>
(n) Liens consisting of deposits of Property to secure bids made
with respect to, or performance of, contracts (other than contracts
----- ----
creating or evidencing an extension of credit to the depositor);
(o) Liens consisting of any right of offset, or statutory
bankers' lien, on bank deposit accounts maintained in the ordinary
course of business so long as such bank deposit accounts are not
established or maintained for the purpose of providing such right of
offset or bankers' lien;
(p) Liens consisting of deposits of Property to secure statutory
obligations of Borrower;
(q) Liens consisting of deposits of Property to secure (or in
lieu of) surety, appeal or customs bonds;
(r) Liens created by or resulting from any litigation or legal
proceeding in the ordinary course of business which is currently being
contested in good faith by appropriate proceedings, provided that,
--------
adequate reserves have been set aside as may be required by GAAP and
no material Property is subject to a material impending risk of loss
or forfeiture; and
(s) other non-consensual Liens incurred in the ordinary course
of business but not in connection with the incurrence of any
Indebtedness, which do not in the aggregate, when taken together with
all other Liens, materially impair the fair market value or use of the
Property for the purposes for which it is or may reasonably be
expected to be held.
"Permitted Right of Others" means a Right of Others consisting of (a)
-------------------------
an interest (other than a legal or equitable co-ownership interest, an
----- ----
option or right to acquire a legal or equitable co-ownership interest and
any interest of a ground lessor under a ground lease), that does not
materially impair the fair market value or use of Property for the purposes
for which it is or may reasonably be expected to be held, (b) an option or
right to acquire a Lien that would be a
-24-
<PAGE>
Permitted Encumbrance, (c) the subordination of a lease or sublease in
favor of a financing entity and (d) a license, or similar right, of or to
Intangible Assets granted in the ordinary course of business.
"Person" means any individual or entity, including a trustee,
------ ---------
corporation, limited liability company, general partnership, limited
partnership, joint stock company, trust, estate, unincorporated
organization, business association, firm, joint venture, Governmental
Agency, or other entity.
"Pricing Certificate" means a certificate in the form of Exhibit F,
------------------- ---------
properly completed and signed by a Senior Officer of Borrower.
"Pricing Period" means (a) the period commencing on the Closing Date
--------------
and ending on May 15, 1999, (b) the period commencing on May 16, 1999, and
each subsequent May 16, and ending on the next following August 15, (c) the
period commencing on each August 16 and ending on the next following
November 15, (d) the period commencing on each November 16 and ending on
the next following February 15 and (e) the period commencing on each
February 16 and ending on the next following May 15.
"Prime Rate" means the rate of interest publicly announced from time
----------
to time by the Administrative Agent in San Francisco, California (or other
headquarters city of the Administrative Agent), as its "prime rate." The
"prime rate" is one of several base rates used by the Administrative Agent
and serves as the basis upon which effective rates of interest are
calculated for loans and other credits making reference thereto. The
"prime rate" is evidenced by the recording thereof after its announcement
in such internal publication or publications as the Administrative Agent
may designate. Any change in the Prime Rate announced by the
Administrative Agent shall take effect at the opening of business on the
day specified in the public announcement of such change.
"Prior Credit Facility" means that certain Credit Agreement dated as
---------------------
of April 15, 1997 among Borrower, Bank One, Indiana, N.A., as agent, and
the lenders party thereto.
"Proforma EBITDA" means with respect to an Acquired Company and
---------------
-25-
<PAGE>
with respect to any fiscal period, the earnings before taxes, interest,
depreciation and amortization of that Acquired Company (determined in
conformity with the definition of "EBITDA") for that fiscal period adjusted
--------
to exclude as an expense any expense item that has been eliminated and not
replaced as a result of the Acquisition (excluding expense reductions
---------
attributable to general increases in efficiency, scale of operations,
etc.).
"Projections" means the projected financial information dated February
-----------
4, 1999 prepared by Borrower and furnished to the Lenders.
"Property" means any interest in any kind of property or asset,
--------
whether real, personal or mixed, or tangible or intangible.
"Pro Rata Share" means, with respect to each Lender, the percentage of
--------------
the Commitments set forth opposite the name of that Lender on Schedule 1.1,
------------
as such percentage may be increased or decreased pursuant to a Commitments
Assignment and Acceptance executed in accordance with Section 11.8.
----
"Quarterly Payment Date" means the last Banking Day of each calendar
----------------------
quarter.
"Real Property" means, as of any date of determination, all real
-------------
property then or theretofore owned, leased or occupied by Borrower or any
of its Subsidiaries.
"Regulation D" means Regulation D, as at any time amended, of the
------------
Board of Governors of the Federal Reserve System, or any other regulation
in substance substituted therefor.
"Regulation U" means Regulation U, as at any time amended, of the
------------
Board of Governors of the Federal Reserve System, or any other regulation
in substance substituted therefor.
"Rental Expense" means, with respect to any Person and as of the last
--------------
day of any fiscal period, the aggregate amount paid or payable (without
duplication) for that fiscal period by that Person to a lessor or renter of
Property as lease payments or rent (excluding rent under Capital Lease
---------
Obligations that is
-26-
<PAGE>
treated as Interest Expense) in accordance with GAAP.
"Request for Letter of Credit" means a written request for a Letter of
----------------------------
Credit substantially in the form of Exhibit G, signed by a Responsible
---------
Official of Borrower and properly completed to provide all information
required to be included therein.
"Request for Loan" means a written request for a Loan substantially in
----------------
the form of Exhibit H, signed by a Responsible Official of Borrower, on
---------
behalf of Borrower, and properly completed to provide all information
required to be included therein.
"Requirement of Law" means, as to any Person, the articles or
------------------
certificate of incorporation and by-laws or other organizational or
governing documents of such Person, and any Law, or judgment, award,
decree, writ or determination of a Governmental Agency, in each case
applicable to or binding upon such Person or any of its Property or to
which such Person or any of its Property is subject.
"Requisite Lenders" means (a) as of any date of determination if the
-----------------
Commitments are then in effect, two (2) or more Lenders having in the
aggregate 66-2/3% or more of the Commitments then in effect and (b) as of
any date of determination if the Commitments have then been suspended or
terminated and there is then any Indebtedness evidenced by the Notes, two
(2) or more Lenders holding Notes evidencing in the aggregate 66-2/3% or
more of the aggregate Indebtedness then evidenced by the Notes.
"Responsible Official" means (a) any Senior Officer of Borrower and
--------------------
(b) any other responsible official of Borrower so designated in a written
notice thereof from a Senior Officer to the Administrative Agent. The
Lenders shall be entitled to conclusively rely upon any document or
certificate that is signed or executed by a Responsible Official of
Borrower or any of its Subsidiaries as having been authorized by all
necessary corporate, partnership and/or other action on the part of
Borrower or such Subsidiary.
"Right of Others" means, as to any Property in which a Person has an
---------------
interest, any legal or equitable right, title or other interest (other than
a Lien) held by any other Person in that Property, and any option or right
held by any other Person to acquire any such right, title or other interest
in that Property,
-27-
<PAGE>
including any option or right to acquire a Lien; provided, however, that
--------- --------
(a) no covenant restricting the use or disposition of Property of such
Person contained in any Contractual Obligation of such Person and (b) no
provision contained in a contract creating a right of payment or
performance in favor of a Person that conditions, limits, restricts,
diminishes, transfers or terminates such right shall be deemed to
constitute a Right of Others.
"Senior Officer" means (a) the chief executive officer, (b) the
--------------
president, (c) the general counsel, (d) the chief financial officer, (e)
the treasurer or (f) the controller, in each case of Borrower.
"Special Eurodollar Circumstance" means the application or adoption
-------------------------------
after the Closing Date of any Law or interpretation, or any change therein
or thereof, or any change in the interpretation or administration thereof
by any Governmental Agency, central bank or comparable authority charged
with the interpretation or administration thereof, or compliance by any
Lender or its Eurodollar Lending Office with any request or directive
(whether or not having the force of Law) of any such Governmental Agency,
central bank or comparable authority.
"Standby Letter of Credit" means each Letter of Credit that is not a
------------------------
Commercial Letter of Credit.
"Stockholders' Equity" means, as of any date of determination and with
--------------------
respect to any Person, the consolidated stockholders' equity of the Person
as of that date determined in accordance with GAAP; provided that there
--------
shall be excluded from Stockholders' Equity any amount attributable to
Disqualified Stock.
"Subsidiary" means, as of any date of determination and with respect
----------
to any Person, any corporation, limited liability company or partnership
(whether or not, in any case, characterized as such or as a "joint
venture"), whether now existing or hereafter organized or acquired: (a) in
the case of a corporation or limited liability company, of which a majority
of the securities having ordinary voting power for the election of
directors or other governing body (other than securities having such power
only by reason of the happening of a contingency) are at the time
beneficially owned by such Person and/or one or more
-28-
<PAGE>
Subsidiaries of such Person, or (b) in the case of a partnership, of which
a majority of the partnership or other ownership interests are at the time
beneficially owned by such Person and/or one or more of its Subsidiaries.
"Subsidiary Guarantors" means each Subsidiary of Borrower other than
--------------------- ----- ----
Inactive Subsidiaries.
"Subsidiary Guaranty" means the continuing guaranty of the Obligations
-------------------
to be executed and delivered pursuant to Section 8.1 by the Subsidiary
---
Guarantors, in the form of Exhibit I, either as originally executed or as
---------
it may from time to time be supplemented, modified, amended, extended or
supplanted.
"Swing Line" means the revolving line of credit established by the
----------
Swing Line Bank in favor of Borrower pursuant to Section 2.8.
---
"Swing Line Documents" means the promissory note and any other
--------------------
documents executed by Borrower in favor of the Swing Line Lender in
connection with the Swing Line.
"Swing Line Lender" means Wells Fargo Bank, National Association.
-----------------
"Swing Line Loans" means loans made by the Swing Line Lender to
----------------
Borrower pursuant to Section 2.8.
---
"Swing Line Outstandings" means, as of any date of determination, the
-----------------------
aggregate principal Indebtedness of Borrower on all Swing Line Loans then
outstanding.
"to the best knowledge of" means, when modifying a representation,
------------------------
warranty or other statement of any Person, that the fact or situation
described therein is known by the Person (or, in the case of a Person other
than a natural Person, known by a Responsible Official of that Person)
making the representation, warranty or other statement, or with the
exercise of reasonable due diligence under the circumstances (in accordance
with the standard of what a reasonable Person in similar circumstances
would have done) would have been known by the Person (or, in the case of a
Person other than a natural Person, would have been known by a Responsible
Official of that Person).
-29-
<PAGE>
"type", when used with respect to any Loan or Advance, means the
----
designation of whether such Loan or Advance is an Alternate Base Rate Loan
or Advance, or a Eurodollar Rate Loan or Advance.
"Wholly-Owned Subsidiary" means a Subsidiary of Borrower, 10)% of the
-----------------------
capital stock or other equity interest of which is owned, directly or
indirectly, by Borrower, except for director's qualifying shares required
------
by applicable Laws.
1.2 Use of Defined Terms. Any defined term used in the plural shall
--------------------
refer to all members of the relevant class, and any defined term used in the
singular shall refer to any one or more of the members of the relevant class.
1.3 Accounting Terms. All accounting terms not specifically defined
----------------
in this Agreement shall be construed in conformity with, and all financial data
required to be submitted by this Agreement shall be prepared in conformity with,
GAAP applied on a consistent basis, except as otherwise specifically prescribed
------
herein. In the event that GAAP changes during the term of this Agreement such
that the covenants contained in Sections 6.11 through 6.13, inclusive, would
---- ----
then be calculated in a different manner or with different components, (a)
Borrower and the Lenders agree to amend this Agreement in such respects as are
necessary to conform those covenants as criteria for evaluating Borrower's
financial condition to substantially the same criteria as were effective prior
to such change in GAAP and (b) Borrower shall be deemed to be in compliance with
the covenants contained in the aforesaid Sections if and to the extent that
Borrower would have been in compliance therewith under GAAP as in effect
immediately prior to such change, but shall have the obligation to deliver each
of the materials described in Article 7 to the Administrative Agent and the
---------
Lenders, on the dates therein specified, with financial data presented in a
manner which conforms with GAAP as in effect immediately prior to such change.
1.4 Rounding. Any financial ratios required to be maintained by
--------
Borrower pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed in this
Agreement and rounding the result up or down to the nearest number (with a
round-up if there is no nearest number) to the number of places by which such
ratio is expressed in this Agreement.
-30-
<PAGE>
1.5 Exhibits and Schedules. All Exhibits and Schedules to this
----------------------
Agreement, either as originally existing or as the same may from time to time be
supplemented, modified or amended, are incorporated herein by this reference. A
matter disclosed on any Schedule shall be deemed disclosed on all Schedules.
1.6 References to "Borrower and its Subsidiaries". Any reference
--------------------------------------------
herein to "Borrower and its Subsidiaries" or the like shall refer solely to
Borrower during such times, if any, as Borrower shall have no Subsidiaries.
1.7 Miscellaneous Terms. The term "or" is disjunctive; the term
-------------------
"and" is conjunctive. The term "shall" is mandatory; the term "may" is
permissive. Masculine terms also apply to females; feminine terms also apply to
males. The term "including" is by way of example and not limitation.
Article 2
LOANS AND LETTERS OF CREDIT
---------------------------
2.1 Loans-General.
-------------
(a) Subject to the terms and conditions set forth in this
Agreement, at any time and from time to time from the Closing Date through
the Line A Maturity Date, each Lender shall, pro rata according to that
Lender's Pro Rata Share of the then applicable Line A Commitment, make
Advances to Borrower under the Line A Commitment in such amounts as
Borrower may request that do not result in the sum of (i) the aggregate
------
principal amount outstanding under the Line A Notes plus (ii) the Aggregate
----
Effective Amount of all outstanding Letters of Credit plus (iii) the Swing
----
Line Outstandings to exceed the Line A Commitment. Subject to the
limitations set forth herein, Borrower may borrow, repay and reborrow under
the Line A Commitment without premium or penalty.
(b) Subject to the terms and conditions (including Section 8.2)
--------- ---
set forth in this Agreement, at any time and from time to time from the
Closing Date through the Line B Maturity Date, each Lender shall, pro rata
according to that Lender's Pro Rata Share of the then applicable Line B
Commitment, make Advances to Borrower under the Line B Commitment in such
amounts as
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<PAGE>
Borrower may request that do not result in the aggregate principal amount
outstanding under the Line B Notes to exceed the Line B Commitment. Subject
to the limitations set forth herein, Borrower may borrow, repay and
reborrow under the Line B Commitment without premium or penalty.
(c) Subject to the next sentence, each Loan shall be made
pursuant to a Request for Loan which shall specify the requested (i) date
of such Loan, (ii) type of Loan, (iii) amount of such Loan and (iv) in the
case of a Eurodollar Rate Loan, the Eurodollar Period for such Loan.
Unless the Administrative Agent has notified, in its sole and absolute
discretion, Borrower to the contrary, a Loan may be requested by telephone
by a Responsible Official of Borrower, in which case Borrower shall confirm
such request by promptly delivering a Request for Loan (conforming to the
preceding sentence) in person or by telecopier or electronic mail to the
Administrative Agent. Administrative Agent shall incur no liability
whatsoever hereunder in acting upon any telephonic request for Loan
purportedly made by a Responsible Official of Borrower, and Borrower hereby
agrees to indemnify the Administrative Agent from any loss, cost, expense
or liability as a result of so acting.
(d) Promptly following receipt of a Request for Loan, the
Administrative Agent shall notify each Lender by telephone, telecopier or
electronic mail (and if by telephone, promptly confirmed by telecopier or
electronic mail) of the date and type of the Loan, the applicable
Eurodollar Period and that Lender's Pro Rata Share of the Loan. Not later
than 10:00 a.m., California time, on the date specified for any Loan (which
must be a Banking Day), each Lender shall make its Pro Rata Share of the
Loan in immediately available funds available to the Administrative Agent
at the Administrative Agent's Office. Upon satisfaction or waiver of the
applicable conditions set forth in Article 8, all Advances shall be
---------
credited on that date in immediately available funds to the Designated
Deposit Account.
(e) Unless the Requisite Lenders otherwise consent, each
Alternate Base Rate Loan shall be not less than $500,000 and in an integral
multiple of $100,000 and each Eurodollar Rate Loan shall be not less than
$1,000,000 and in an integral multiple of $100,000.
(f) Notwithstanding Section 2.1(c), during the period commencing
------
on the Closing Date and ending on the earlier of (i) six (6) months
------- --
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<PAGE>
after the Closing Date or (ii) the completion of the syndication process
referred to in Section 5.13, Borrower may not request a Eurodollar Rate
----
Loan with a Eurodollar Period longer than one (1) month.
(g) The Advances made by each Lender under the Line A Commitment
shall be evidenced by that Lender's Line A Note. The Advances made by each
Lender under the Line B Commitment shall be evidenced by that Lender's Line
B Note.
(h) A Request for Loan shall be irrevocable upon the
Administrative Agent's first notification thereof.
(i) If no Request for Loan (or telephonic request for Loan
referred to in the second sentence of Section 2.1(c), if applicable) has
------
been made within the requisite notice periods set forth in Section 2.2 or
---
2.3 prior to the end of the Eurodollar Period for any outstanding
---
Eurodollar Rate Loan, then on the last day of such Eurodollar Period, such
Eurodollar Rate Loan shall be automatically converted into an Alternate
Base Rate Loan in the same amount.
2.2 Alternate Base Rate Loans. Each request by Borrower for an
-------------------------
Alternate Base Rate Loan shall be made pursuant to a Request for Loan (or
telephonic or other request for loan referred to in the second sentence of
Section 2.1(c), if applicable) received by the Administrative Agent, at the
------
Administrative Agent's Office, not later than 9:)) a.m. California time, on the
date (which must be a Banking Day) immediately prior to the date of the
requested Alternate Base Rate Loan. All Loans shall constitute Alternate Base
Rate Loans unless properly designated as a Eurodollar Rate Loan pursuant to
Section 2.3.
---
2.3 Eurodollar Rate Loans.
---------------------
(a) Each request by Borrower for a Eurodollar Rate Loan shall be
made pursuant to a Request for Loan (or telephonic or other request for
Loan referred to in the second sentence of Section 2.1(c), if applicable)
------
received by the Administrative Agent, at the Administrative Agent's Office,
not later than 9:)) a.m., California time, at least three (3) Eurodollar
Banking Days before the first day of the applicable Eurodollar Period.
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<PAGE>
(b) On the date which is two (2) Eurodollar Banking Days before
the first day of the applicable Eurodollar Period, the Administrative Agent
shall confirm its determination of the applicable Eurodollar Rate (which
determination shall be conclusive in the absence of manifest error) and
promptly shall give notice of the same to Borrower and the Lenders by
telephone, telecopier or electronic mail (and if by telephone, promptly
confirmed by telecopier or electronic mail).
(c) Unless the Administrative Agent and the Requisite Lenders
otherwise consent, no more than five (5) Eurodollar Rate Loans shall be
outstanding at any one time.
(d) No Eurodollar Rate Loan may be requested during the
continuation of a Default or Event of Default.
(e) Nothing contained herein shall require any Lender to fund
any Eurodollar Rate Advance in the Designated Eurodollar Market.
2.4 Letters of Credit.
-----------------
(a) Subject to the terms and conditions hereof, at any time and
from time to time from the Closing Date through the Line A Maturity Date,
the Issuing Lender shall issue such Letters of Credit under the Line A
Commitment as Borrower may request by a Request for Letter of Credit;
provided that (i) giving effect to all such Letters of Credit, the sum of
-------- ---
(A) the aggregate principal amount outstanding under the Line A Notes plus
----
(B) the Aggregate Effective Amount of all outstanding Letters of Credit,
plus (C) the Swing Line Outstandings, does not exceed the then applicable
----
Line A Commitment and (ii) the Aggregate Effective Amount under all
outstanding Letters of Credit does not exceed $10,000,000. Each Letter of
Credit shall be in a form reasonably acceptable to the Issuing Lender.
Unless all the Lenders otherwise consent in a writing delivered to the
Administrative Agent, the term of any Standby Letter of Credit shall not
exceed one (1) year or extend beyond the Line A Maturity Date and the term
of any Commercial Letter of Credit shall not exceed one hundred eighty
(180) days or extend beyond the Line A Maturity Date.
(b) Each Request for Letter of Credit shall be submitted to the
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<PAGE>
Issuing Lender, with a copy to the Administrative Agent, at least three (3)
Banking Days prior to the date upon which the related Letter of Credit is
proposed to be issued. The Administrative Agent shall promptly notify the
Issuing Lender whether such Request for Letter of Credit, and the issuance
of a Letter of Credit pursuant thereto, conforms to the requirements of
this Agreement. Upon issuance of a Letter of Credit, the Issuing Lender
shall promptly notify the Administrative Agent, and the Administrative
Agent shall promptly notify the Lenders, of the amount and terms thereof.
(c) Upon the issuance of a Letter of Credit, each Lender shall
be deemed to have purchased a pro rata participation in such Letter of
Credit from the Issuing Lender in an amount equal to that Lender's Pro Rata
Share. Without limiting the scope and nature of each Lender's participation
in any Letter of Credit, to the extent that the Issuing Lender has not been
reimbursed by Borrower for any payment required to be made by the Issuing
Lender under any Letter of Credit, each Lender shall, pro rata according to
its Pro Rata Share of the Line A Commitment, reimburse the Issuing Lender
through the Administrative Agent promptly upon demand for the amount of
such payment. The obligation of each Lender to so reimburse the Issuing
Lender shall be absolute and unconditional and shall not be affected by the
occurrence of an Event of Default or any other occurrence or event. Any
such reimbursement shall not relieve or otherwise impair the obligation of
Borrower to reimburse the Issuing Lender for the amount of any payment made
by the Issuing Lender under any Letter of Credit together with interest as
hereinafter provided.
(d) Borrower agrees to pay to the Issuing Lender through the
Administrative Agent an amount equal to any payment made by the Issuing
Lender with respect to each Letter of Credit within one (1) Banking Day
after demand made by the Issuing Lender therefor, together with interest on
such amount from the date of any payment made by the Issuing Lender at the
rate applicable to Alternate Base Rate Loans for two (2) Banking Days and
thereafter at the Default Rate. The principal amount of any such payment
shall be used to reimburse the Issuing Lender for the payment made by it
under the Letter of Credit and, to the extent that the Lenders have not
reimbursed the Issuing Lender pursuant to Section 2.4(c), the interest
------
amount of any such payment shall be for the account of the Issuing Lender.
Each Lender that has reimbursed the Issuing Lender pursuant to Section
2.4(c) for its Pro Rata Share
------
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<PAGE>
of any payment made by the Issuing Lender under a Letter of Credit shall
thereupon acquire a pro rata participation, to the extent of such
reimbursement, in the claim of the Issuing Lender against Borrower for
reimbursement of principal and interest under this Section 2.4(d) and shall
------
share, in accordance with that pro rata participation, in any principal
payment made by Borrower with respect to such claim and in any interest
payment made by Borrower (but only with respect to periods subsequent to
the date such Lender reimbursed the Issuing Lender) with respect to such
claim.
(e) Borrower may, pursuant to a Request for Loan, request that
Advances be made pursuant to Section 2.1(a) to provide funds for the
------
payment required by Section 2.4(d). The proceeds of such Advances shall be
------
paid directly to the Issuing Lender to reimburse it for the payment made by
it under the Letter of Credit.
(f) If Borrower fails to make the payment required by Section
2.4(d) within the time period therein set forth, in lieu of the
------
reimbursement to the Issuing Lender under Section 2.4(c) the Issuing Lender
------
may (but is not required to), without notice to or the consent of Borrower,
instruct the Administrative Agent to cause Alternate Base Rate Advances to
be made by the Lenders under the Line A Commitment in an aggregate amount
equal to the amount paid by the Issuing Lender with respect to that Letter
of Credit. The proceeds of such Alternate Base Rate Advances shall be paid
directly to the Issuing Lender to reimburse it for the payment made by it
under the Letter of Credit.
(g) The issuance of any supplement, modification, amendment,
renewal, or extension to or of any Letter of Credit shall be treated in all
respects the same as the issuance of a new Letter of Credit.
(h) The obligation of Borrower to pay to the Issuing Lender the
amount of any payment made by the Issuing Lender under any Letter of Credit
shall be absolute, unconditional, and irrevocable, subject only to
performance by the Issuing Lender of its obligations to Borrower under
Uniform Commercial Code Section 5108. Without limiting the foregoing,
Borrower's obligations shall not be affected by any of the following
circumstances:
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<PAGE>
(i) any lack of validity or enforceability prior to its
stated expiration date of the Letter of Credit, this Agreement, or any
other agreement or instrument relating thereto;
(ii) any amendment or waiver of or any consent to
departure from the Letter of Credit, this Agreement, or any other
agreement or instrument relating thereto, with the consent of
Borrower;
(iii) the existence of any claim, setoff, defense, or other
rights which Borrower may have at any time against the Issuing Lender,
the Administrative Agent or any Lender, any beneficiary of the Letter
of Credit (or any persons or entities for whom any such beneficiary
may be acting) or any other Person, whether in connection with the
Letter of Credit, this Agreement, or any other agreement or instrument
relating thereto, or any unrelated transactions;
(iv) any demand, statement, or any other document
presented under the 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 whatsoever so long as any such
document appeared substantially to comply with the terms of the Letter
of Credit;
(v) the existence, character, quality, quantity,
condition, packing, value or delivery of any Property purported to be
represented by documents presented in connection with any Letter of
Credit or any difference between any such Property and the character,
quality, quantity, condition, or value of such Property as described
in such documents;
(vi) the time, place, manner, order or contents of
shipments or deliveries of Property as described in documents
presented in connection with any Letter of Credit or the existence,
nature and extent of any insurance relative thereto;
(vii) the solvency or financial responsibility of any party
issuing any documents in connection with a Letter of Credit;
-37-
<PAGE>
(viii) any failure or delay in notice of shipments or
arrival of any Property;
(ix) any error in the transmission of any message relating
to a Letter of Credit not caused by the Issuing Lender, or any delay
or interruption in any such message;
(x) any error, neglect or default of any correspondent of
the Issuing Lender in connection with a Letter of Credit;
(xi) any consequence arising from acts of God, war,
insurrection, civil unrest, disturbances, labor disputes, emergency
conditions or other causes beyond the control of the Issuing Lender;
and
(xii) so long as the Issuing Lender in good faith and in
conformity with customary standards of care in the banking industry
determines that the contract or document appears substantially to
comply with the terms of the Letter of Credit, the form, accuracy,
genuineness or legal effect of any contract or document referred to in
any document submitted to the Issuing Lender in connection with a
Letter of Credit.
(i) The Issuing Lender shall be entitled to the protection
accorded to the Administrative Agent pursuant to Section 1).6, mutatis
---- -------
mutandis.
--------
(j) The Uniform Customs and Practice for Documentary Credits, as
published in its most current version by the International Chamber of
Commerce, shall be deemed a part of this Section and shall apply to all
Letters of Credit.
2.5 Voluntary Reduction of Commitments. Borrower shall have the
----------------------------------
right, at any time and from time to time, without penalty or charge, upon at
least five (5) Banking Days' prior written notice by a Responsible Official of
Borrower to the Administrative Agent, voluntarily to reduce, permanently and
irrevocably, in aggregate principal amounts in an integral multiple of
$1,000,000 but not less than $5,000,000, or to terminate, all or a portion of
the then undisbursed portion of either or
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<PAGE>
both of the Commitments. The Administrative Agent shall promptly notify the
Lenders of any reduction or termination of the Commitments under this Section.
2.6 Optional Termination of Commitments. Following the occurrence of
-----------------------------------
a Change in Control or a Change in Management, the Requisite Lenders may in
their sole and absolute discretion elect, during the thirty (30) day period
immediately subsequent to the later of (a) such occurrence or (b) the earlier of
-------- -------
(i) receipt of Borrower's written notice to the Administrative Agent of such
occurrence or (ii) if no such notice has been received by the Administrative
Agent, the date upon which the Administrative Agent has actual knowledge
thereof, to terminate the Commitments, in which case the Commitments shall be
terminated effective on the date which is sixty (60) days subsequent to written
notice from the Administrative Agent to Borrower thereof.
2.7 Administrative Agent's Right to Assume Funds Available for
----------------------------------------------------------
Advances. Unless the Administrative Agent shall have been notified by any
- --------
Lender no later than 10:00 a.m. on the Banking Day of the proposed funding by
the Administrative Agent of any Loan that such Lender does not intend to make
available to the Administrative Agent such Lender's portion of the total amount
of such Loan, the Administrative Agent may assume that such Lender has made such
amount available to the Administrative Agent on the date of the Loan and the
Administrative Agent may, in reliance upon such assumption, make available to
Borrower a corresponding amount. If the Administrative Agent has made funds
available to Borrower based on such assumption and such corresponding amount is
not in fact made available to the Administrative Agent by such Lender, the
Administrative Agent shall be entitled to recover such corresponding amount on
demand from such Lender. If such Lender does not pay such corresponding amount
forthwith upon the Administrative Agent's demand therefor, the Administrative
Agent promptly shall notify Borrower and Borrower shall pay such corresponding
amount to the Administrative Agent. The Administrative Agent also shall be
entitled to recover from such Lender interest on such corresponding amount in
respect of each day from the date such corresponding amount was made available
by the Administrative Agent to Borrower to the date such corresponding amount is
recovered by the Administrative Agent, at a rate per annum equal to the daily
Federal Funds Rate. Nothing herein shall be deemed to relieve any Lender from
its obligation to fulfill its share of the Commitments or to prejudice any
rights which the Administrative Agent or Borrower may have against any Lender as
a result of any default by such Lender hereunder.
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<PAGE>
2.8 Swing Line. (a) The Swing Line Lender shall from time to time
----------
from the Closing Date through the day prior to the Line A Maturity Date make
Swing Line Loans to Borrower in such amounts as Borrower may request, provided
--------
that (a) giving effect thereto, the sum of (i) the aggregate principal amount
--- --
outstanding under the Line A Notes plus (ii) the Aggregate Effective Amount of
----
all outstanding Letters of Credit plus (iii) the Swing Line Outstandings does
----
not exceed the Line A Commitment, (b) after giving effect to such Swing Line
Loan, the Swing Line Outstandings do not exceed $10,000,000, (c) without the
consent of all of the Lenders, no Swing Line Loan may be made during the
continuation of an Event of Default and (d) the Swing Line Lender has not given
at least twenty-four (24) hours prior notice to Borrower that availability under
the Swing Line is suspended or terminated. Borrower may borrow, repay and
reborrow under this Section. Unless notified to the contrary by the Swing Line
Lender, borrowings under the Swing Line may be made in amounts which are
integral multiples of $100,000 (or the remaining availability under the Swing
Line) upon telephonic request by a Responsible Official of Borrower made to the
Administrative Agent not later than 1:00 p.m., California time, on the Banking
Day of the requested borrowing (which telephonic request shall be promptly
confirmed in writing by telecopier or electronic mail). Promptly after receipt
of such a request for borrowing, the Administrative Agent shall provide
telephonic verification to the Swing Line Lender that, after giving effect to
such request, availability for Loans will exist under Section 2.1(a) (and such
------
verification shall be promptly confirmed in writing by telecopier or electronic
mail). Unless notified to the contrary by the Swing Line Lender, each repayment
of a Swing Line Loan shall be in an amount which is an integral multiple of
$100,000 (or the Swing Line Outstandings). Borrower shall notify the Swing Line
Lender of its intention to make a repayment of a Swing Line Loan not later than
1:00 p.m. California time on the date of repayment. If Borrower instructs the
Swing Line Lender to debit its demand deposit account at the Swing Line Lender
in the amount of any payment with respect to a Swing Line Loan, or the Swing
Line Lender otherwise receives repayment, after 3:00 p.m., California time, on a
Banking Day, such payment shall be deemed received on the next Banking Day. The
Swing Line Lender shall promptly notify the Administrative Agent of the Swing
Loan Outstandings each time there is a change therein.
(b) Swing Line Loans shall bear interest at a fluctuating rate per
annum equal to the Alternate Base Rate. Interest shall be payable on such
dates, not more frequent than monthly, as may be specified by the Swing Line
Lender and in any
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<PAGE>
event on the Line A Maturity Date. The Swing Line Lender shall be responsible
for invoicing Borrower for such interest. The interest payable on Swing Line
Loans is solely for the account of the Swing Line Lender (subject to clause (d)
---
below).
(c) The Swing Line Loans shall be payable on demand made by the Swing
Line Lender and in any event on the Line A Maturity Date.
(d) Upon the making of a Swing Line Loan, each Lender shall be deemed
to have purchased from the Swing Line Lender a participation therein in an
amount equal to that Lender's Pro Rata Share of the Line A Commitment times the
-----
amount of the Swing Line Loan. Upon demand made by the Swing Line Lender, each
Lender shall, according to its Pro Rata Share of the Line A Commitment, promptly
provide to the Swing Line Lender its purchase price therefor in an amount equal
to its participation therein. The obligation of each Lender to so provide its
purchase price to the Swing Line Lender shall be absolute and unconditional
(except only demand made by the Swing Line Lender) and shall not be affected by
the occurrence of a Default or Event of Default; provided that no Lender shall
--------
be obligated to purchase its Pro Rata Share of (i) Swing Line Loans to the
extent that the sum of (A) the aggregate principal amount plus (B) the Aggregate
--- -- ----
Effective Amount of all outstanding Letters of Credit plus (C) the Swing Line
----
Outstandings exceeds the Line A Commitment, (ii) Swing Line Loans to the extent
that Swing Line Outstandings are in excess of $10,000,000 and (iii) any Swing
Line Loan made (absent the consent of all of the Lenders) during the
continuation of an Event of Default. Each Lender that has provided to the Swing
Line Lender the purchase price due for its participation in Swing Line Loans
shall thereupon acquire a pro rata participation, to the extent of such payment,
in the claim of the Swing Line Lender against Borrower for principal and
interest and shall share, in accordance with that pro rata participation, in any
principal payment made by Borrower with respect to such claim and in any
interest payment made by Borrower (but only with respect to periods subsequent
to the date such Lender paid the Swing Line Lender its purchase price) with
respect to such claim.
(e) In the event that the Swing Line Outstandings are in excess of
$5)),))) on five (5) consecutive Banking Days, then on the next Banking Day
(unless Borrower has made other arrangements acceptable to the Swing Line Lender
to reduce the Swing Line Outstandings below $500,000), Borrower shall request a
Loan pursuant to Section 2.1 sufficient to reduce the Swing Line Outstandings
---
below $500,000. In addition, upon any demand for payment of the Swing Line
Outstandings by the Swing
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<PAGE>
Line Lender (unless Borrower has made other arrangements acceptable to the Swing
Line Lender to reduce the Swing Line Outstandings to $0), Borrower shall request
a Loan pursuant to Section 2.1(a) sufficient to repay all Swing Line
------
Outstandings (and, for this purpose, Section 2.1(e) shall not apply). In each
------
case, the Administrative Agent shall automatically provide the responsive
Advances made by each Lender to the Swing Line Lender (which the Swing Line
Lender shall then apply to the Swing Line Outstandings). In the event that
Borrower fails to request a Loan within the time specified by Section 2.2 on any
---
such date, the Administrative Agent may, but is not required to, without notice
to or the consent of Borrower, cause Alternate Base Rate Advances to be made by
the Lenders under the Commitments in amounts which are sufficient to reduce the
Swing Line Outstandings as required above. The proceeds of such Advances shall
be paid directly to the Swing Line Lender for application to the Swing Line
Outstandings.
Article 3
PAYMENTS AND FEES
-----------------
3.1 Principal and Interest.
----------------------
(a) Interest shall be payable on the outstanding daily unpaid
principal amount of each Advance from the date thereof until payment in
full is made and shall accrue and be payable at the rates set forth or
provided for herein before and after Default, before and after maturity,
before and after judgment, and before and after the commencement of any
proceeding under any Debtor Relief Law, with interest on overdue interest
at the Default Rate to the fullest extent permitted by applicable Laws.
(b) Interest accrued on each Alternate Base Rate Loan shall be
due and payable on each Quarterly Payment Date. Except as otherwise
------
provided in Section 3.9, the unpaid principal amount of any Alternate Base
---
Rate Loan shall bear interest at a fluctuating rate per annum equal to the
Alternate Base Rate. Each change in the interest rate under this Section
3.1(b) due to a change in the Alternate Base Rate shall take effect
------
simultaneously with the corresponding change in the Alternate Base Rate.
(c) Interest accrued on each Eurodollar Rate Loan which is for
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<PAGE>
a term of three months or less shall be due and payable on the last day of
the related Eurodollar Period. Interest accrued on each other Eurodollar
Rate Loan shall be due and payable on the date which is three months after
the date such Eurodollar Rate Loan was made (and, in the event that all of
the Lenders have approved a Eurodollar Period of longer than six months,
every three months thereafter through the last day of the Eurodollar
Period) and on the last day of the related Eurodollar Period. Except as
------
otherwise provided in Section 3.9, the unpaid principal amount of any
---
Eurodollar Rate Loan shall bear interest at a rate per annum equal to the
Eurodollar Rate for that Eurodollar Rate Loan plus the Applicable
----
Eurodollar Rate Margin.
(d) If not sooner paid, the principal Indebtedness evidenced by
the Notes shall be payable as follows:
(i) the amount, if any, by which the sum of (A) the
------
principal Indebtedness evidenced by the Line A Notes plus (B) the
----
Aggregate Effective Amount of all outstanding Letters of Credit plus
----
(C) the Swing Line Outstandings at any time exceeds the then
applicable Line A Commitment (including the Line A Commitment as
---------
reduced pursuant to Section 2.5) shall be payable immediately;
---
(ii) the amount, if any, by which the principal
Indebtedness evidenced by the Line B Notes at any time exceeds the
Line B Commitment (including the Line B Commitment as reduced pursuant
---------
to Section 2.5) shall be payable immediately;
---
(iii) the principal Indebtedness evidenced by the Line A
Notes shall in any event be payable on the Line A Maturity Date; and
(iv) the principal Indebtedness evidenced by the Line B
Notes shall in any event be payable on the Line B Maturity Date.
(e) The principal Indebtedness evidenced by the Notes may, at
any time and from time to time, voluntarily be paid or prepaid in whole or
in part without premium or penalty, except that with respect to any
------
voluntary prepayment under this Subsection, (i) any partial prepayment of
an Alternate Base Rate Loan shall be not less than $500,000 and shall be an
integral multiple
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<PAGE>
of $100,000 (or the aggregate Indebtedness evidenced by the Line A Notes or
Line B Notes, as applicable), (ii) any partial prepayment of a Eurodollar
Rate Loan shall be not less than $1,000,000 and shall be an integral
multiple of $100,000 (or the aggregate Indebtedness evidenced by the Notes,
as applicable), (iii) the Administrative Agent shall have received written
notice of any prepayment by 9:00 a.m. California time on the date that is
one (1) Banking Day before the date of prepayment (which must be a Banking
Day) in the case of an Alternate Base Rate Loan, and, in the case of a
Eurodollar Rate Loan, two (2) Banking Days before the date of prepayment,
which notice shall identify the date and amount of the prepayment and the
Loan(s) being prepaid, (iv) each prepayment of principal on any Eurodollar
Rate Loan shall be accompanied by payment of interest accrued to the date
of payment on the amount of principal paid and (v) any payment or
prepayment of all or any part of any Eurodollar Rate Loan on a day other
than the last day of the applicable Eurodollar Period shall be subject to
Section 3.8(d).
------
3.2 Arrangement Fee. On the Closing Date, Borrower shall pay to the
---------------
Lead Arranger the arrangement fee as heretofore agreed upon by letter agreement
dated December 23, 1998 between Borrower and the Lead Arranger. The arrangement
fee paid to the Lead Arranger is solely for its own account and is
nonrefundable.
3.3 Participation Fee. On the Closing Date, Borrower shall pay to
-----------------
the Administrative Agent, for the ratable accounts of the Lenders pro rata
according to their Pro Rata Share of the Commitments, a participation fee equal
to .1% (10 basis points) times the Commitments. The participation fee paid to
-----
each Lender is solely for its account and is non-refundable.
3.4 Agency Fee. On the Closing Date, and on each anniversary
----------
thereof, Borrower shall pay to the Administrative Agent the agency fee as
heretofore agreed upon by letter agreement dated December 23, 1998 between
Borrower and the Administrative Agent. The agency fee paid to the
Administrative Agent is solely for its own account and is nonrefundable.
3.5 Commitment Fee. From the Closing Date through the Maturity Date,
--------------
Borrower shall pay to the Administrative Agent, for the ratable accounts of the
Lenders pro rata according to their Pro Rata Share of the Commitments, a
commitment fee equal to .25% (25 basis points) per annum times the average daily
-----
amount by which
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<PAGE>
the Commitments exceed the sum of (a) the aggregate daily principal Indebtedness
------
evidenced by the Notes plus (b) the Aggregate Effective Amount of all
----
outstanding Letters of Credit. The commitment fee shall be payable quarterly in
arrears as of each Quarterly Payment Date within three (3) Banking Days after
receipt by Borrower of an invoice therefor from the Administrative Agent.
3.6 Letter of Credit Fees. With respect to each Letter of Credit,
---------------------
Borrower shall pay the following fees:
(a) concurrently with the issuance of each Standby Letter of
Credit, a letter of credit issuance fee to the Issuing Lender for the sole
account of the Issuing Lender, in an amount equal to .125% (12.5 basis
points) times the face amount of such Standby Letter of Credit through the
-----
termination or expiration of such Standby Letter of Credit;
(b) concurrently with the issuance of each Standby Letter of
Credit, to the Administrative Agent for the ratable account of the Lenders
in accordance with their Pro Rata Share of the Line A Commitment, a standby
letter of credit fee in an amount equal to the Applicable Standby Letter of
Credit Fee Rate as of the date of such issuance times the face amount of
-----
such Standby Letter of Credit through the termination or expiration of such
Standby Letter of Credit, which the Administrative Agent shall promptly pay
to the Lenders; and
(c) concurrently with the issuance, negotiation, and any other
activity with respect to each Commercial Letter of Credit, to the Issuing
Lender for the sole account of the Issuing Lender, issuance, negotiation
and other activity fees payable under the Issuing Lender's then standard
commercial letter of credit policies.
Each of the fees payable with respect to Letters of Credit under this Section is
earned when due and is nonrefundable.
3.7 Increased Commitment Costs. If any Lender shall determine in
--------------------------
good faith that the introduction after the Closing Date of any applicable law,
rule, regulation or guideline regarding capital adequacy, or any change therein
or any change in the interpretation or administration thereof by any central
bank or other Governmental Agency charged with the interpretation or
administration thereof, or compliance by
-45-
<PAGE>
such Lender (or its Eurodollar Lending Office) or any corporation controlling
such Lender, with any request, guideline or directive regarding capital adequacy
(whether or not having the force of Law) of any such central bank or other
authority not imposed as a result of such Lender's or such corporation's failure
to comply with any other Laws, affects or would affect the amount of capital
required or expected to be maintained by such Lender or any corporation
controlling such Lender and (taking into consideration such Lender's or such
corporation's policies with respect to capital adequacy and such Lender's
desired return on capital) determines in good faith that the amount of such
capital is increased, or the rate of return on capital is reduced, as a
consequence of its obligations under this Agreement, then, within five (5)
Banking Days after demand of such Lender, Borrower shall pay to such Lender,
from time to time as specified in good faith by such Lender, additional amounts
sufficient to compensate such Lender in light of such circumstances, to the
extent reasonably allocable to such obligations under this Agreement, provided
--------
that Borrower shall not be obligated to pay any such amount which arose prior to
the date which is ninety (90) days preceding the date of such demand or is
attributable to periods prior to the date which is ninety (90) days preceding
the date of such demand. Each Lender's determination of such amounts shall be
conclusive in the absence of manifest error.
3.8 Eurodollar Costs and Related Matters.
------------------------------------
(a) If, after the date hereof, the existence or occurrence of
any Special Eurodollar Circumstance:
(1) shall subject any Lender or its Eurodollar Lending
Office to any tax, duty or other charge or cost with respect to any
Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate
Loans or its obligation to make Eurodollar Rate Advances, or shall
change the basis of taxation of payments to any Lender attributable to
the principal of or interest on any Eurodollar Rate Advance or any
other amounts due under this Agreement in respect of any Eurodollar
Rate Advance, any of its Notes evidencing Eurodollar Rate Loans or its
obligation to make Eurodollar Rate Advances, excluding (i) taxes
---------
imposed on or measured in whole or in part by its overall net income
by (A) any jurisdiction (or political subdivision thereof) in which it
is organized or maintains its principal office or Eurodollar Lending
Office or (B) any jurisdiction (or political subdivision thereof) in
which it is "doing
-46-
<PAGE>
business" and (ii) any withholding taxes or other taxes based on net
income imposed by the United States of America for any period with
respect to which it has failed to provide Borrower with the
appropriate form or forms required by Section 11.21, to the extent
-----
such forms are then required by applicable Laws;
(2) shall impose, modify or deem applicable any reserve not
applicable or deemed applicable on the date hereof (including any
---------
reserve imposed by the Board of Governors of the Federal Reserve
System, special deposit, capital or similar requirements against
assets of, deposits with or for the account of, or credit extended by,
any Lender or its Eurodollar Lending Office); or
(3) shall impose on any Lender or its Eurodollar Lending
Office or the Designated Eurodollar Market any other condition
affecting any Eurodollar Rate Advance, any of its Notes evidencing
Eurodollar Rate Loans, its obligation to make Eurodollar Rate Advances
or this Agreement, or shall otherwise affect any of the same;
and the result of any of the foregoing, as determined in good faith by such
Lender, increases the cost to such Lender or its Eurodollar Lending Office
of making or maintaining any Eurodollar Rate Advance or in respect of any
Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Loans
or its obligation to make Eurodollar Rate Advances or reduces the amount of
any sum received or receivable by such Lender or its Eurodollar Lending
Office with respect to any Eurodollar Rate Advance, any of its Notes
evidencing Eurodollar Rate Loans or its obligation to make Eurodollar Rate
Advances (assuming such Lender's Eurodollar Lending Office had funded 100%
of its Eurodollar Rate Advance in the Designated Eurodollar Market), then,
within five (5) Banking Days after demand by such Lender (with a copy to
the Administrative Agent), Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender for such
increased cost or reduction (determined as though such Lender's Eurodollar
Lending Office had funded 100% of its Eurodollar Rate Advance in the
Designated Eurodollar Market); provided, that Borrower shall not be
--------
obligated to pay any such amount which arose prior to the date which is
ninety (90)
-47-
<PAGE>
days preceding the date of such demand or is attributable to periods prior
to the date which is ninety (90) days preceding the date of such demand. A
statement of any Lender claiming compensation under this subsection shall
be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of
any Special Eurodollar Circumstance shall, in the good faith opinion of any
Lender, make it unlawful or impossible for such Lender or its Eurodollar
Lending Office to make, maintain or fund its portion of any Eurodollar Rate
Loan, or materially restrict the authority of such Lender to purchase or
sell, or to take deposits of, Dollars in the Designated Eurodollar Market,
or to determine or charge interest rates based upon the Eurodollar Rate,
and such Lender shall so notify the Administrative Agent, then such
Lender's obligation to make Eurodollar Rate Advances shall be suspended for
the duration of such illegality or impossibility and the Administrative
Agent forthwith shall give notice thereof to the other Lenders and
Borrower. Upon receipt of such notice, the outstanding principal amount of
such Lender's Eurodollar Rate Advances, together with accrued interest
thereon, automatically shall be converted to Alternate Base Rate Advances
on either (1) the last day of the Eurodollar Period(s) applicable to such
Eurodollar Rate Advances if such Lender may lawfully continue to maintain
and fund such Eurodollar Rate Advances to such day(s) or (2) immediately if
such Lender may not lawfully continue to fund and maintain such Eurodollar
Rate Advances to such day(s), provided that in such event the conversion
--------
shall not be subject to payment of a prepayment fee under Section 3.8(d).
------
Each Lender agrees to endeavor promptly to notify Borrower of any event of
which it has actual knowledge, occurring after the Closing Date, which will
cause that Lender to notify the Administrative Agent under this Section,
and agrees to designate a different Eurodollar Lending Office if such
designation will avoid the need for such notice and will not, in the good
faith judgment of such Lender, otherwise be materially disadvantageous to
such Lender. In the event that any Lender is unable, for the reasons set
forth above, to make, maintain or fund its portion of any Eurodollar Rate
Loan, such Lender shall fund such amount as an Alternate Base Rate Advance
for the same period of time, and such amount shall be treated in all
respects as an Alternate Base Rate Advance. Any Lender whose obligation to
make Eurodollar Rate Advances has been suspended under this Section shall
promptly notify the Administrative Agent and Borrower of the cessation of
the Special Eurodollar Circumstance which gave rise to such suspension.
-48-
<PAGE>
(c) If, with respect to any proposed Eurodollar Rate Loan:
(1) the Administrative Agent reasonably determines that, by
reason of circumstances affecting the Designated Eurodollar Market
generally that are beyond the reasonable control of the Lenders,
deposits in Dollars (in the applicable amounts) are not being offered
to any Lender in the Designated Eurodollar Market for the applicable
Eurodollar Period; or
(2) the Requisite Lenders advise the Administrative Agent
that the Eurodollar Rate as determined by the Administrative Agent (i)
does not represent the effective pricing to such Lenders for deposits
in Dollars in the Designated Eurodollar Market in the relevant amount
for the applicable Eurodollar Period, or (ii) will not adequately and
fairly reflect the cost to such Lenders of making the applicable
Eurodollar Rate Advances;
then the Administrative Agent forthwith shall give notice thereof to
Borrower and the Lenders, whereupon until the Administrative Agent notifies
Borrower that the circumstances giving rise to such suspension no longer
exist, the obligation of the Lenders to make any future Eurodollar Rate
Advances shall be suspended.
(d) Upon payment or prepayment of any Eurodollar Rate Advance
(other than as the result of a conversion required under Section 3.8(b) on
----- ---- ------
a day other than the last day in the applicable Eurodollar Period (whether
voluntarily, involuntarily, by reason of acceleration, or otherwise), or
upon the failure of Borrower (for a reason other than the breach by a
Lender of its obligation pursuant to Section 2.1 to make an Advance) to
---
borrow on the date or in the amount specified for a Eurodollar Rate Loan in
any Request for Loan, Borrower shall pay to the appropriate Lender within
five (5) Banking Days after demand a prepayment fee or failure to borrow
fee, as the case may be (determined as though 100% of the Eurodollar Rate
Advance had been funded in the Designated Eurodollar Market) equal to the
sum of:
---
(1) $250; plus
----
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<PAGE>
(2) the amount, if any, by which (i) the additional
interest would have accrued on the amount prepaid or not borrowed at
the Eurodollar Rate plus the Applicable Eurodollar Rate Margin if that
----
amount had remained or been outstanding through the last day of the
applicable Eurodollar Period exceeds (ii) the interest that the Lender
-------
could recover by placing such amount on deposit in the Designated
Eurodollar Market for a period beginning on the date of the prepayment
or failure to borrow and ending on the last day of the applicable
Eurodollar Period (or, if no deposit rate quotation is available for
such period, for the most comparable period for which a deposit rate
quotation may be obtained); plus
----
(3) all reasonable out-of-pocket expenses incurred by the
Lender reasonably attributable to such payment, prepayment or failure
to borrow.
Each Lender's determination of the amount of any prepayment fee payable
under this Section shall be conclusive in the absence of manifest error.
(e) Each Lender agrees to endeavor promptly to notify Borrower
of any event of which it has actual knowledge, occurring after the Closing
Date, which will entitle such Lender to compensation pursuant to clause (a)
-
of this Section, and agrees to designate a different Eurodollar Lending
Office if such designation will avoid the need for or reduce the amount of
such compensation and will not, in the good faith judgment of such Lender,
otherwise be materially disadvantageous to such Lender. Any request for
compensation by a Lender under this Section shall set forth the basis upon
which it has been determined that such an amount is due from Borrower, a
calculation of the amount due, and a certification that the corresponding
costs have been incurred by the Lender.
3.9 Late Payments. If any installment of principal or interest or
-------------
any fee or cost or other amount payable under any Loan Document to the
Administrative Agent or any Lender is not paid when due, it shall thereafter
bear interest at a fluctuating interest rate per annum at all times equal to the
sum of the Alternate Base Rate plus 2%, to the fullest extent permitted by
- ------ ----
applicable Laws; provided that the Default Rate
--------
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<PAGE>
shall not apply to any amount not paid at a time when Borrower's general
operating bank account with the Administrative Agent has a credit balance in
collected funds at least equal to such amount and the Administrative Agent is
able to, but fails to, debit such account pursuant to Section 3.12(b). Accrued
-------
and unpaid interest on past due amounts (including, without limitation, interest
---------
on past due interest) shall be compounded monthly, on the last day of each
calendar month, to the fullest extent permitted by applicable Laws.
3.10 Computation of Interest and Fees. Computation of interest and
--------------------------------
fees under this Agreement shall be calculated on the basis of a year of 360 days
and the actual number of days elapsed. Interest shall accrue on each Loan for
the day on which the Loan is made; interest shall not accrue on a Loan, or any
portion thereof, for the day on which the Loan or such portion is paid. Any
Loan that is repaid on the same day on which it is made shall bear interest for
one day. Notwithstanding anything in this Agreement to the contrary, interest
in excess of the maximum amount permitted by applicable Laws shall not accrue or
be payable hereunder or under the Notes, and any amount paid as interest
hereunder or under the Notes which would otherwise be in excess of such maximum
permitted amount shall instead be treated as a payment of principal.
3.11 Non-Banking Days. If any payment to be made by Borrower or any
----------------
other Party under any Loan Document shall come due on a day other than a Banking
Day, payment shall instead be considered due on the next succeeding Banking Day
and the extension of time shall be reflected in computing interest and fees.
3.12 Manner and Treatment of Payments.
--------------------------------
(a) Each payment hereunder (except payments pursuant to
------
Sections 3.7, 3.8, 11.3, 11.11 and 11.22) or on the Notes or under any
--- --- ---- ----- -----
other Loan Document shall be made to the Administrative Agent at the
Administrative Agent's Office for the account of each of the Lenders or the
Administrative Agent, as the case may be, without deduction, offset or
counterclaim, in immediately available funds not later than 11:00 a.m.
California time, on the day of payment (which must be a Banking Day). All
payments received after such time, on any Banking Day, shall be deemed
received on the next succeeding Banking Day. The amount of all payments
received by the Administrative Agent for the account of each Lender shall
be
-51-
<PAGE>
immediately paid by the Administrative Agent to the applicable Lender in
immediately available funds and, if such payment was received by the
Administrative Agent by 11:00 a.m., California time, on a Banking Day and
not so made available to the account of a Lender on that Banking Day, the
Administrative Agent shall reimburse that Lender for the cost to such
Lender of funding the amount of such payment at the Federal Funds Rate. All
payments shall be made in lawful money of the United States of America.
(b) Borrower hereby authorizes the Administrative Agent to debit
the general operating bank account of Borrower on the date when due to
effect any payment due to the Lenders or the Administrative Agent pursuant
to this Agreement; provided that the Administrative Agent has given at
--------
least one (1) full Banking Day's prior notice to Borrower. Any resulting
overdraft in such account shall be payable by Borrower to the
Administrative Agent on the next following Banking Day and thereafter shall
bear interest at the Default Rate.
(c) Each payment or prepayment on account of any Loan shall be
applied pro rata according to the outstanding Advances made by each Lender
comprising such Loan.
(d) Each Lender shall use its best efforts to keep a record (in
writing or by an electronic data entry system) of Advances made by it and
payments received by it with respect to each of its Notes and, subject to
Section 10.6(g), such record shall, as against Borrower, be presumptive
-------
evidence of the amounts owing. Notwithstanding the foregoing sentence, the
failure by any Lender to keep such a record shall not affect Borrower's
obligation to pay the Obligations.
(e) Each payment of any amount payable by Borrower or any other
Party under this Agreement or any other Loan Document shall be made free
and clear of, and without reduction by reason of, any taxes, assessments or
other charges imposed by any Governmental Agency, central bank or
comparable authority, excluding (i) taxes imposed on or measured in whole
---------
or in part by a Lender's overall net income by (A) any jurisdiction (or
political subdivision thereof) in which the Lender is organized or
maintains its principal office or Eurodollar Lending Office or (B) any
jurisdiction (or political subdivision thereof) in which the Lender is
"doing business" and (ii) any
-52-
<PAGE>
withholding taxes or other taxes based on net income imposed by the United
States of America for any period with respect to which the Lender has
failed to provide Borrower with the appropriate form or forms required by
Section 11.21, to the extent such forms are then required by applicable
-----
Laws (all such non-excluded taxes, assessments or other charges being
hereinafter referred to as "Taxes"). To the extent that Borrower is
obligated by applicable Laws to make any deduction or withholding on
account of Taxes from any amount payable to any Lender under this
Agreement, Borrower shall (i) make such deduction or withholding and pay
the same to the relevant Governmental Agency and (ii) pay such additional
amount to that Lender as is necessary to result in that Lender's receiving
a net after-Tax amount equal to the amount to which that Lender would have
been entitled under this Agreement absent such deduction or withholding. If
and when receipt of such payment results in an excess payment or credit to
that Lender on account of such Taxes, that Lender shall promptly refund
such excess to Borrower.
3.13 Funding Sources. Nothing in this Agreement shall be deemed to
---------------
obligate any Lender to obtain the funds for any Loan or Advance in any
particular place or manner or to constitute a representation by any Lender that
it has obtained or will obtain the funds for any Loan or Advance in any
particular place or manner.
3.14 Failure to Charge Not Subsequent Waiver. Any decision by the
---------------------------------------
Administrative Agent or any Lender not to require payment of any interest
(including interest arising under Section 3.9), fee, cost or other amount
--------- ---
payable under any Loan Document, or to calculate any amount payable by a
particular method, on any occasion shall in no way limit or be deemed a waiver
of the Administrative Agent's or such Lender's right to require full payment of
any interest (including interest arising under Section 3.9), fee, cost or other
--------- ---
amount payable under any Loan Document, or to calculate an amount payable by
another method that is not inconsistent with this Agreement, on any other or
subsequent occasion.
3.15 Administrative Agent's Right to Assume Payments Will be Made.
------------------------------------------------------------
Unless the Administrative Agent shall have been notified by Borrower prior to
the date on which any payment to be made by Borrower hereunder is due that
Borrower does not intend to remit such payment, the Administrative Agent may, in
its discretion, assume that Borrower has remitted such payment when so due and
the Administrative Agent may, in its discretion and in reliance upon such
assumption, make available to
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<PAGE>
each Lender on such payment date an amount equal to such Lender's share of such
assumed payment. If Borrower has not in fact remitted such payment to the
Administrative Agent, each Lender shall forthwith on demand repay to the
Administrative Agent the amount of such assumed payment made available to such
Lender, together with interest thereon in respect of each day from and including
the date such amount was made available by the Administrative Agent to such
Lender to the date such amount is repaid to the Administrative Agent at the
Federal Funds Rate.
3.16 Fee Determination Detail. The Administrative Agent, and any
------------------------
Lender, shall provide reasonable detail to Borrower regarding the manner in
which the amount of any payment to the Administrative Agent and the Lenders, or
that Lender, under Article 3 has been determined, concurrently with demand for
---------
such payment.
3.17 Survivability. All of Borrower's obligations under Sections 3.7
------------- ---
and 3.8 shall survive for the ninety (90) day period following the date on which
---
the Commitments are terminated and all Loans hereunder are fully paid, and
Borrower shall remain obligated thereunder for all claims under such Sections
made by any Lender to Borrower prior to the expiration of such period.
Article 4
REPRESENTATIONS AND WARRANTIES
------------------------------
Borrower represents and warrants to the Lenders that:
4.1 Existence and Qualification; Power; Compliance With Laws.
--------------------------------------------------------
Borrower is a corporation duly formed, validly existing and in good standing
under the Laws of Delaware. Borrower is duly qualified or registered to
transact business in Colorado and is in good standing in Colorado and each other
jurisdiction in which the conduct of its business or the ownership or leasing of
its Properties makes such qualification or registration necessary, except where
------
the failure so to qualify or register and to be in good standing would not
constitute a Material Adverse Effect. Borrower has all requisite power and
authority to conduct its business, to own and lease its Properties and to
execute and deliver each Loan Document to which it is a Party and to perform its
Obligations. All outstanding shares of capital stock of Borrower are duly
authorized, validly issued, fully paid and non-assessable, and no holder thereof
has any enforceable right of rescission under any applicable state or federal
securities Laws.
-54-
<PAGE>
Borrower is in compliance with all Laws and other legal requirements applicable
to its business, has obtained all authorizations, consents, approvals, orders,
licenses and permits from, and has accomplished all filings, registrations and
qualifications with, or obtained exemptions from any of the foregoing from, any
Governmental Agency that are necessary for the transaction of its business,
except where the failure so to comply, obtain authorizations, etc., file,
- ------
register, qualify or obtain exemptions does not constitute a Material Adverse
Effect.
4.2 Authority; Compliance With Other Agreements and Instruments and
---------------------------------------------------------------
Government Regulations. The execution, delivery and performance by Borrower and
- ----------------------
the Subsidiary Guarantors of the Loan Documents to which it is a Party have been
duly authorized by all necessary corporate action, and do not and will not:
(a) Require any consent or approval not heretofore obtained of
any partner, director, stockholder, security holder or creditor of such
Party;
(b) Violate or conflict with any provision of such Party's
charter, articles of incorporation or bylaws, as applicable;
(c) Result in or require the creation or imposition of any Lien
or Right of Others upon or with respect to any Property now owned or leased
or hereafter acquired by such Party;
(d) Violate any Requirement of Law applicable to such Party;
(e) Result in a breach of or constitute a default under, or
cause or permit the acceleration of any obligation owed under, any
indenture or loan or credit agreement or any other Contractual Obligation
to which such Party is a party or by which such Party or any of its
Property is bound or affected;
and such Party is not in violation of, or default under, any Requirement of Law
or Contractual Obligation, or any indenture, loan or credit agreement described
in Section 4.2(e), in any respect that constitutes a Material Adverse Effect.
------
4.3 No Governmental Approvals Required. Except as previously
---------------------------------- ------
obtained or made, no authorization, consent, approval, order, license or permit
from, or filing, registration or qualification with, any Governmental Agency is
or will be
-55-
<PAGE>
required to authorize or permit under applicable Laws the execution, delivery
and performance by Borrower and each Subsidiary Guarantor of the Loan Documents
to which it is a Party.
4.4 Subsidiaries.
------------
(a) Schedule 4.4 hereto correctly sets forth the (i) names, (ii)
------------
form of legal entity, (iii) number of shares of capital stock (or other
units of equity interests) issued and outstanding, (iv) number of shares
(or units) owned by Borrower or a Subsidiary of Borrower (and specifying
such owner), and (v) jurisdictions of organization of all Subsidiaries of
Borrower. Schedule 4.4 hereto correctly specifies which of the
------------
Subsidiaries of Borrower are Inactive Subsidiaries. Except as described in
Schedule 4.4 or Schedule 6.15, Borrower does not own any capital stock,
------------ -------------
equity interest or debt security which is convertible, or exchangeable, for
capital stock or equity interests in any Person. Unless otherwise
indicated in Schedule 4.4, all of the outstanding shares of capital stock
------------
(or units of equity interest) of each Subsidiary are owned of record and
beneficially by Borrower, there are no outstanding options, warrants or
other rights to purchase capital stock (or such units) of any such
Subsidiary, and all such shares (or such units) so owned are duly
authorized, validly issued, fully paid and non-assessable, and were issued
in compliance with all applicable state and federal securities and other
Laws, and are free and clear of all Liens and Rights of Others, except for
------
Permitted Encumbrances and Permitted Rights of Others.
(b) Each Subsidiary of Borrower (other than Inactive Subsidiaries) is
----- ----
duly formed, validly existing and in good standing under the Laws of its
jurisdiction of organization, in the form of organization stated in
Schedule 4.4 therefor, is duly qualified to do business as a foreign
------------
organization and is in good standing as such in each jurisdiction in which
the conduct of its business or the ownership or leasing of its Properties
makes such qualification necessary (except where the failure to be so duly
------
qualified and in good standing does not constitute a Material Adverse
Effect), and has all requisite power and authority to conduct its business
and to own and lease its Properties.
(c) Each Subsidiary of Borrower is in compliance with all Laws and
other requirements applicable to its business and has obtained all
authorizations,
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<PAGE>
consents, approvals, orders, licenses, and permits from, and each
Subsidiary has accomplished all filings, registrations, and qualifications
with, or obtained exemptions from any of the foregoing from, any
Governmental Agency that are necessary for the transaction of its business,
except where the failure to be in such compliance, obtain such
------
authorizations, consents, approvals, orders, licenses, and permits,
accomplish such filings, registrations, and qualifications, or obtain such
exemptions, does not constitute a Material Adverse Effect.
4.5 Financial Statements. Borrower has furnished to the Lenders (a)
--------------------
the audited financial statements of Borrower for the Fiscal Year ended December
31, 1997 and (b) the unaudited balance sheet and statement of operations of
Borrower for the Fiscal Quarter ended September 26, 1998. The financial
statements described in clause (a) fairly present in all material respects the
-
financial condition, results of operations and changes in financial position,
and the balance sheet and statement of operations described in clause (b) fairly
-
present the financial condition and results of operations of Borrower, as of
such dates and for such periods in conformity with GAAP consistently applied
subject only to normal year-end accruals and audit adjustments.
4.6 No Other Liabilities; No Material Adverse Changes. Borrower and
-------------------------------------------------
its Subsidiaries do not have any material liability or material contingent
liability required under GAAP to be reflected or disclosed, and not reflected or
disclosed, in the balance sheet described in Section 4.5(b), other than
------ ----- ----
liabilities and contingent liabilities arising in the ordinary course of
business since the date of such financial statements. As of the Closing Date,
no circumstance or event has occurred that constitutes a Material Adverse Effect
since September 26, 1998.
4.7 Title to and Location of Property. Borrower and its Subsidiaries
---------------------------------
have valid title to the Property (other than assets which are the subject of a
----- ----
Capital Lease Obligation) reflected in the balance sheet described in Section
4.5(b), other than items of Property or exceptions to title which are in each
- ------ ----- ----
case immaterial and Property subsequently sold or disposed of in the ordinary
course of business. Such Property is free and clear of all Liens and Rights of
Others, other than Liens or Rights of Others described in Schedule 4.7 and
---------- ------------
Permitted Encumbrances and Permitted Rights of Others.
4.8 Intangible Assets. Borrower and its Subsidiaries own, or possess
-----------------
the right to use to the extent necessary in their respective businesses, all
material trade-
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<PAGE>
marks, trade names, copyrights, patents, patent rights, computer software,
licenses and other Intangible Assets that are used in the conduct of their
businesses as now operated, and no such Intangible Asset, to the best knowledge
of Borrower, conflicts with the valid trademark, trade name, copyright, patent,
patent right or Intangible Asset of any other Person to the extent that such
conflict constitutes a Material Adverse Effect.
4.9 Public Utility Holding Company Act. Neither Borrower nor any of
----------------------------------
its Subsidiaries 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", in each case within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
4.10 Litigation. Except for (a) any matter fully covered as to
---------- ------
subject matter and amount (subject to applicable deductibles and retentions) by
insurance for which the insurance carrier has not asserted lack of subject
matter coverage or reserved its right to do so, (b) any matter, or series of
related matters, involving a claim against Borrower or any of its Subsidiaries
of less than $1,000,000, (c) matters of an administrative nature not involving a
claim or charge against Borrower or any of its Subsidiaries and (d) matters set
forth in Schedule 4.10, there are no actions, suits, proceedings or
-------------
investigations pending as to which Borrower or any of its Subsidiaries have been
served or have received notice or, to the best knowledge of Borrower, threatened
against or affecting Borrower or any of its Subsidiaries or any Property of any
of them before any Governmental Agency.
4.11 Binding Obligations. Each of the Loan Documents to which
-------------------
Borrower or any Subsidiary Guarantor is a Party will, when executed and
delivered by Borrower or the Subsidiary Guarantor, constitute the legal, valid
and binding obligation of Borrower, enforceable against Borrower or such
Subsidiary Guarantor in accordance with its terms, except as enforcement may be
------
limited by Debtor Relief Laws or equitable principles relating to the granting
of specific performance and other equitable remedies as a matter of judicial
discretion.
4.12 No Default. No event has occurred and is continuing that is a
----------
Default or Event of Default.
4.13 ERISA.
-----
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<PAGE>
(a) With respect to each Pension Plan:
(i) such Pension Plan complies in all material respects
with ERISA and any other applicable Laws to the extent that
noncompliance could reasonably be expected to have a Material Adverse
Effect;
(ii) such Pension Plan has not incurred any "accumulated
funding deficiency" (as defined in Section 302 of ERISA) that could
reasonably be expected to have a Material Adverse Effect;
(iii) no "reportable event" (as defined in Section 4043 of
ERISA, but excluding such events as to which the PBGC has by
---------
regulation waived the requirement therein contained that it be
notified within thirty days of the occurrence of such event) has
occurred that could reasonably be expected to have a Material Adverse
Effect; and
(iv) neither Borrower nor any of its Subsidiaries has
engaged in any non-exempt "prohibited transaction" (as defined in
Section 4975 of the Code) that could reasonably be expected to have a
Material Adverse Effect.
(b) Neither Borrower nor any of its Subsidiaries has incurred
or expects to incur any withdrawal liability to any Multiemployer Plan that
could reasonably be expected to have a Material Adverse Effect.
4.14 Regulation U; Investment Company Act. No part of the proceeds
------------------------------------
of any Loan hereunder will be used to purchase or carry, or to extend credit to
others for the purpose of purchasing or carrying, any Margin Stock in violation
of Regulation U. Neither Borrower nor any of its Subsidiaries is or is required
to be registered as an "investment company" under the Investment Company Act of
1940.
4.15 Disclosure. No written statement made by a Senior Officer to
----------
the Administrative Agent or any Lender in connection with this Agreement, or in
connection with any Loan, as of the date thereof contained any untrue statement
of a material fact or omitted a material fact necessary to make the statement
made not misleading in light of all the circumstances existing at the date the
statement was made.
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<PAGE>
4.16 Tax Liability. Borrower and its Subsidiaries have filed all tax
-------------
returns which are required to be filed, and have paid, or made provision for the
payment of, all taxes with respect to the periods, Property or transactions
covered by said returns, or pursuant to any assessment received by Borrower or
any of its Subsidiaries, except (a) such taxes, if any, as are being contested
------
in good faith by appropriate proceedings and as to which adequate reserves have
been established and maintained and (b) immaterial taxes so long as no material
Property of Borrower or any of its Subsidiaries is at impending risk of being
seized, levied upon or forfeited.
4.17 Projections. As of the Closing Date, to the best knowledge of
-----------
Borrower, the assumptions set forth in the Projections are reasonable and
consistent with each other and with all facts known to Borrower, and the
Projections are reasonably based on such assumptions. Nothing in this Section
4.17 shall be construed as a representation or covenant that the Projections in
- ----
fact will be achieved.
4.18 Hazardous Materials. Except as described in Schedule 4.18, as
------------------- -------------
of the Closing Date (a) neither Borrower nor any of its Subsidiaries at any time
has disposed of, discharged, released or threatened the release of any Hazardous
Materials on, from or under the Real Property in violation of any Hazardous
Materials Law that would individually or in the aggregate constitute a Material
Adverse Effect, (b) to the best knowledge of Borrower, no condition exists that
violates any Hazardous Material Law affecting any Real Property except for such
violations that would not individually or in the aggregate constitute a Material
Adverse Effect, (c) no Real Property or any portion thereof is or has been
utilized by Borrower or any of its Subsidiaries as a site for the manufacture of
any Hazardous Materials and (d) to the extent that any Hazardous Materials are
used, generated or stored by Borrower or any of its Subsidiaries on any Real
Property, or transported to or from such Real Property by Borrower or any of its
Subsidiaries, such use, generation, storage and transportation are in compliance
with all Hazardous Materials Laws except for such non-compliance that would not
constitute a Material Adverse Effect or be materially adverse to the interests
of the Lenders.
4.19 Solvency. As of the Closing Date and as of the date of each
--------
Loan, and giving effect thereto and the application of proceeds thereof,
Borrower is not and will not (as of the date of each Loan) be Insolvent.
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Article 5
AFFIRMATIVE COVENANTS
---------------------
(OTHER THAN INFORMATION AND
--------------------------
REPORTING REQUIREMENTS)
----------------------
So long as any Advance remains unpaid, or any other Obligation remains
unpaid, or any portion of the Commitments remains in force, Borrower shall, and
shall cause its Subsidiaries to, unless the Administrative Agent (with the
written approval of the Requisite Lenders) otherwise consents:
5.1 Payment of Taxes and Other Potential Liens. Pay and discharge
------------------------------------------
promptly all taxes, assessments and governmental charges or levies imposed upon
any of them, upon their respective Property or any part thereof and upon their
respective income or profits or any part thereof, except that Borrower and its
------
Subsidiaries shall not be required to pay or cause to be paid (a) any tax,
assessment, charge or levy that is not yet past due, or is being contested in
good faith by appropriate proceedings so long as the relevant entity has
established and maintains adequate reserves for the payment of the same or (b)
any immaterial tax so long as no material Property of Borrower or its
Subsidiaries is at impending risk of being seized, levied upon or forfeited.
5.2 Preservation of Existence. Preserve and maintain their
-------------------------
respective existences in the jurisdiction of their formation and all material
authorizations, rights, franchises, privileges, consents, approvals, orders,
licenses, permits, or registrations from any Governmental Agency that are
necessary for the transaction of their respective business and qualify and
remain qualified to transact business in each jurisdiction in which such
qualification is necessary in view of their respective business or the ownership
or leasing of their respective Properties except (a) a merger permitted by
------
Section 6.3 or as otherwise permitted by this Agreement and (b) where the
---
failure to so qualify or remain qualified would not constitute a Material
Adverse Effect.
5.3 Maintenance of Properties. Maintain, preserve and protect all of
-------------------------
their respective Properties in good order and condition, subject to wear and
tear in the ordinary course of business, and not permit any waste of their
respective Properties, except that the failure to maintain, preserve and protect
------
a particular item of Property that is at the end of its useful life or that is
not of significant value, either intrinsically
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<PAGE>
or to the operations of Borrower, shall not constitute a violation of this
covenant.
5.4 Maintenance of Insurance. Maintain liability, casualty and other
------------------------
insurance (subject to customary deductibles and retentions) with responsible
insurance companies in such amounts and against such risks as is carried by
responsible companies engaged in similar businesses and owning similar assets in
the general areas in which Borrower and its Subsidiaries operate.
5.5 Compliance With Laws. Comply with all Requirements of Law
--------------------
noncompliance with which constitutes a Material Adverse Effect, except that
------
Borrower and its Subsidiaries need not comply with a Requirement of Law then
being contested by any of them in good faith by appropriate proceedings.
5.6 Inspection Rights. Upon reasonable notice, at any time during
-----------------
regular business hours and as often as reasonably requested (but not so as to
significantly interfere with the business of Borrower or any of its
Subsidiaries) permit the Administrative Agent or any Lender, or any authorized
employee, agent or representative thereof, to examine, audit and make copies and
abstracts from the records and books of account of, and to visit and inspect the
Properties of, Borrower and its Subsidiaries and to discuss the affairs,
finances and accounts of Borrower and its Subsidiaries with any of their
officers, key employees or accountants.
5.7 Keeping of Records and Books of Account. Keep adequate records
---------------------------------------
and books of account reflecting all financial transactions in conformity with
GAAP, consistently applied, and in material conformity with all applicable
requirements of any Governmental Agency having regulatory jurisdiction over
Borrower and its Subsidiaries.
5.8 Compliance With Agreements. Promptly and fully comply with all
--------------------------
Contractual Obligations to which any one or more of them is a party, except for
------
any such Contractual Obligations (a) the performance of which would cause a
Default or (b) then being contested by any of them in good faith by appropriate
proceedings or (c) if the failure to comply does not constitute a Material
Adverse Effect.
5.9 Use of Proceeds. Use the proceeds of all Loans for working
---------------
capital and general corporate purposes (including Acquisitions) of Borrower.
---------
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<PAGE>
5.10 Hazardous Materials Laws. Keep and maintain all Real Property
------------------------
and each portion thereof in compliance in all material respects with all
applicable Hazardous Materials Laws and promptly notify the Administrative Agent
in writing (attaching a copy of any pertinent written material) of (a) any and
all material enforcement, cleanup, removal or other governmental or regulatory
actions instituted, completed or threatened in writing by a Governmental Agency
pursuant to any applicable Hazardous Materials Laws, (b) any and all material
claims made or threatened in writing by any Person against Borrower relating to
damage, contribution, cost recovery, compensation, loss or injury resulting from
any Hazardous Materials and (c) discovery by any Senior Officer of any of
Borrower of any material occurrence or condition on any real Property adjoining
or in the vicinity of such Real Property that could reasonably be expected to
cause such Real Property or any part thereof to be subject to any material
restrictions on the ownership, occupancy, transferability or use of such Real
Property under any applicable Hazardous Materials Laws.
5.11 Future Subsidiaries. Cause each Subsidiary (other than an
------------------- ----- ----
Inactive Subsidiary) formed or acquired after the Closing Date to execute and
deliver an appropriate joinder to the Subsidiary Guaranty.
5.12 Year 2000 Compliance. Take such steps as are reasonably
--------------------
necessary (a) to assure that, prior to November 1, 1999, Borrower and its
Subsidiaries are Year 2000 Compliant and (b) to make reasonable inquiries of all
vendors of Borrower and its Subsidiaries that are material to the business of
Borrower and whose ability to perform their business obligations to Borrower may
be materially affected by their not being Year 2000 Compliant as to the status
of their becoming Year 2000 Compliant and, based on responses to those
inquiries, formulate a prudent plan to address the possibility that a vendor
will not be Year 2000 Compliant. Such steps shall include the performance of a
comprehensive review and assessment of all data storage and operating systems
and the adoption of a detailed plan and budget for the remediation, monitoring
and testing of such systems. The term "Year 2000 Compliant" means, for purposes
-------------------
of the foregoing, that all hardware, software, firmware, equipment, goods and
systems used by a Person, and which are material to the business operations or
financial condition of a Person, will properly perform date-sensitive functions
on and after January 1, 2000.
5.13 Syndication Process. Cooperate in such respects as may be
-------------------
requested by the Lead Arranger in connection with the syndication of the credit
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<PAGE>
facilities under this Agreement, including the provision of information (in form
---------
and substance acceptable to the Lead Arranger) for inclusion in written
materials furnished to prospective syndicate members and the participation by
Senior Officers in meetings with prospective syndicate members. Nothing in
Section 5.13 shall obligate Borrower to amend any Loan Document.
----
Article 6
NEGATIVE COVENANTS
------------------
So long as any Advance remains unpaid, or any other Obligation remains
unpaid, or any portion of the Commitments remains in force, Borrower shall not,
and shall not permit any of its Subsidiaries to, unless the Administrative Agent
(with the written approval of the Requisite Lenders or, if required by Section
11.2, of all of the Lenders) otherwise consents:
- ----
6.1 Prepayment of Indebtedness. Make any payment of principal or
--------------------------
interest on any Indebtedness prior to the date when due and payable, or amend
the terms of any Indebtedness to accelerate the date upon which any principal or
interest thereof is due and payable, except the Indebtedness evidenced by the
------
Notes, if a Default or Event of Default then exists or would result therefrom.
6.2 Disposition of Property. Make any Disposition of its Property,
-----------------------
whether now owned or hereafter acquired, (a) except a Disposition by Borrower to
------
a Wholly-Owned Subsidiary, or by a Subsidiary of Borrower to Borrower or a
Wholly-Owned Subsidiary, (b) the closure of stores leased by Borrower and the
reversion thereof to the lessor, and (c) a sale and leaseback transaction
permitted by Section 6.8(g).
------
6.3 Mergers. Merge or consolidate with or into any Person, except
------- ------
(a) mergers and consolidations of a Subsidiary of Borrower into Borrower or a
Wholly-Owned Subsidiary or of Subsidiaries with each other and (b) a merger or
consolidation of a Person into Borrower or with or into a Wholly-Owned
Subsidiary of Borrower which constitutes an Acquisition permitted by Section
6.4; provided that (i) Borrower or a Wholly-Owned Subsidiary is the surviving
- --- --------
entity, (ii) no Change in Control results therefrom, (iii) no Default or Event
of Default then exists or would result therefrom and (iv) Borrower and each of
its Subsidiaries execute such amendments to the Loan
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<PAGE>
Documents as the Administrative Agent may reasonably determine are appropriate
as a result of such merger.
6.4 Acquisitions. Make any Acquisition, except (a) Acquisitions of
------------ ------
a Person engaged in the business of manufacture, wholesale distribution and
retail sale of natural foods, vitamins, supplements and personal care items (and
related grocery and other products) and (b) Acquisitions of a Person engaged in
another business provided that the purchase price for any such Acquisition shall
--------
not exceed $1,000,000; provided that in any case no Default or Event of Default
--------
then exists or would result therefrom.
6.5 Distributions. Make any Distribution, whether from capital,
-------------
income or otherwise, and whether in Cash or other Property, except:
------
(a) Distributions by any Subsidiary of Borrower to Borrower or
any Wholly-Owned Subsidiary;
(b) dividends payable solely in Common Stock or rights to
purchase Common Stock;
(c) repurchases or redemptions of Common Stock owned by sellers
of a business which was previously the subject of an Acquisition in
accordance with terms binding on Borrower and such sellers at the time of
such Acquisition; and
(d) Distributions with respect to Common Stock in any Fiscal
Year not in excess of 50% of Net Income for the immediately preceding
Fiscal Year; provided that, in any case, no Default or Event of Default
--------
then exists or would result therefrom.
6.6 ERISA. At any time, permit any Pension Plan to: (i) engage
-----
in any non-exempt "prohibited transaction" (as defined in Section 4975 of the
Code); (ii) fail to comply with ERISA or any other applicable Laws; (iii) incur
any material "accumulated funding deficiency" (as defined in Section 302 of
ERISA); or (iv) terminate in any manner, which, with respect to each event
listed above, could reasonably be expected to result in a Material Adverse
Effect or (b) withdraw, completely or partially, from any Multiemployer Plan if
to do so could reasonably be
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<PAGE>
expected to result in a Material Adverse Effect.
6.7 Change in Nature of Business. Make any material change in the
----------------------------
nature of the business of Borrower and its Subsidiaries, taken as a whole, it
being understood that such business consists of the manufacture, wholesale
distribution and retail sale of natural foods, vitamins, supplements and
personal care items (and related grocery and other products).
6.8 Liens and Negative Pledges. Create, incur, assume or suffer to
--------------------------
exist any Lien or Negative Pledge of any nature upon or with respect to any of
their respective Properties, or engage in any sale and leaseback transaction
with respect to any of their respective Properties, whether now owned or
hereafter acquired, except:
------
(a) Liens and Negative Pledges existing on the Closing Date and
disclosed in Schedule 4.7 and any renewals/extensions or amendments
------------
thereof, provided that the obligations secured or benefited thereby are not
--------
increased;
(b) Liens existing on the Closing Date in favor of lessors of
Real Property occupied by Borrower, which Liens attach solely to Property
located on such Real Property, to secure the obligations of Borrower to the
lessor under the lease covering each such Real Property, and any renewals,
extensions or amendments thereof arising in connection with the renewal,
extension or amendment of the related lease;
(c) Liens and Negative Pledges under the Loan Documents;
(d) Permitted Encumbrances;
(e) Liens on Property acquired by Borrower or any of its
Subsidiaries that were in existence at the time of the acquisition of such
Property and were not created in contemplation of such acquisition;
(f) Liens securing Indebtedness permitted by Section 6.9(e) on
-----
and limited to the land or capital assets acquired, constructed or financed
with the proceeds of such Indebtedness or with the proceeds of any
Indebtedness directly or indirectly refinanced by such Indebtedness; and
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<PAGE>
(g) Sale and leaseback transactions with respect to any Real
Property owned by Borrower; provided that such transaction is with a Person
--------
not an Affiliate of Borrower and the net cash proceeds therefrom are
promptly thereafter applied as a voluntary prepayment of the Notes.
6.9 Indebtedness and Guaranty Obligations. Create, incur or assume
-------------------------------------
any Indebtedness or Guaranty Obligation except:
------
(a) Indebtedness and Guaranty Obligations existing on the
Closing Date and disclosed in Schedule 6.9, and refinancings, renewals,
------------
extensions or amendments that do not increase the amount thereof;
(b) Indebtedness and Guaranty Obligations under the Loan
Documents;
(c) Indebtedness and Guaranty Obligations owed to Borrower or
any of its Subsidiaries;
(d) Indebtedness of an Acquired Company that is secured solely
by a Lien permitted by Section 6.8(e) ;
------
(e) Indebtedness consisting of Capital Lease Obligations, or
otherwise incurred to finance the purchase or construction of capital
assets (which shall be deemed to exist if the Indebtedness is incurred at
or within 90 days before or after the purchase or construction of the
capital asset), or to refinance any such Indebtedness, provided that the
--------
principal amount of such Indebtedness incurred in any period of four (4)
consecutive Fiscal Quarters does not exceed $2,000,000 in the aggregate;
(f) Indebtedness consisting of Interest Rate Protection
Agreements; and
(g) Guaranty Obligations in support of the obligations of a
Wholly-Owned Subsidiary, provided that such obligations are not prohibited
--------
by this Agreement.
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<PAGE>
6.10 Transactions with Affiliates. Enter into any transaction of any
----------------------------
kind with any Affiliate of Borrower other than (a) salary, bonus, employee stock
----------
option and other compensation arrangements with directors or officers in the
ordinary course of business, (b) transactions that are fully disclosed to the
board of directors (or executive committee thereof) of Borrower and expressly
authorized by a resolution of the board of directors (or executive committee) of
Borrower which is approved by a majority of the directors (or executive
committee) not having an interest in the transaction, (c) transactions between
or among Borrower and its Subsidiaries and (d) transactions on overall terms at
least as favorable to Borrower or its Subsidiaries as would be the case in an
arm's-length transaction between unrelated parties of equal bargaining power.
6.11 Funded Debt Ratio. Permit the Funded Debt Ratio, as of the last
-----------------
day of any Fiscal Quarter, to be greater than the ratio set forth below opposite
the period during which such day occurs:
Period Ratio
------ -----
Closing Date through
December 31, 1999 3.00 to 1.00
January 1, 2000 through
December 31, 2000 2.75 to 1.00
January 1, 2001 and 2.50 to 1.00
thereafter
6.12 Fixed Charge Coverage Ratio. Permit the Fixed Charge Coverage
---------------------------
Ratio, as of the last day of any Fiscal Quarter, to be less than 2.50 to 1.00.
6.13 Stockholders' Equity. Permit Stockholders' Equity, as of the
--------------------
last day of any Fiscal Quarter, to be less than the sum of (a) $146,000,000,
------
plus (b) 50% of Net Income in each Fiscal Quarter ending after January 2, 1999
- ----
(with no deduction for a net loss in any such Fiscal Quarter) plus (c) 100% of
----
the proceeds of any issuance by Borrower of equity securities (except to
------
employees or former employees of Borrower pursuant to an employee stock option
plan maintained by Borrower) subsequent to the Closing Date.
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<PAGE>
6.14 Investments. Make or suffer to exist any Investment, other than:
----------- ----- ----
(a) Investments in existence on the Closing Date and disclosed on
Schedule 6.14;
-------------
(b) Investments consisting of Cash Equivalents;
(c) Investments in a Person that is the subject of an Acquisition
permitted by Section 6.4;
---
(d) Investments consisting of advances to officers, directors
and employees of Borrower and its Subsidiaries for travel, entertainment,
relocation, anticipated bonus and analogous ordinary business purposes;
(e) Investments of Borrower in any Wholly-Owned Subsidiary and
Investments of any such Subsidiary in another Wholly-Owned Subsidiary;
(f) Investments consisting of the extension of credit to
customers or suppliers of Borrower and its Subsidiaries in the ordinary
course of business and any Investments received in satisfaction or partial
satisfaction thereof;
(g) Investments received in connection with the settlement of a
bona fide dispute with another Person;
(h) Investments representing all or a portion of the sales price
of Property sold or services provided to another Person; and
(i) Investments not described above not in excess of $50,000 in
any Fiscal Year.
6.15 Subsidiary Indebtedness. Permit (whether or not otherwise
-----------------------
permitted under Section 6.9) any Subsidiary to create, incur, assume or suffer
---
to exist any Indebtedness or Guaranty Obligation, except (a) Indebtedness and
------
Guaranty Obligations in existence on the Closing Date, (b) the Subsidiary
Guaranty, (c) Indebtedness owed to Borrower or another Subsidiary of Borrower
and (d) Capital Lease Obligations and purchase money obligations of a Subsidiary
in respect of
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<PAGE>
Property used by that Subsidiary.
Article 7
INFORMATION AND REPORTING REQUIREMENTS
--------------------------------------
7.1 Financial and Business Information. So long as any Advance
----------------------------------
remains unpaid, or any other Obligation remains unpaid, or any portion of the
Commitments remains in force, Borrower shall, unless the Administrative Agent
(with the written approval of the Requisite Lenders) otherwise consents, at
Borrower's sole expense, deliver to the Administrative Agent for distribution by
it to the Lenders, a sufficient number of copies for all of the Lenders of the
following:
(a) As soon as practicable, and in any event within 45 days
after the end of each Fiscal Quarter (other than the fourth Fiscal Quarter
----- ----
in any Fiscal Year), the consolidated and consolidating (by store) balance
sheet of Borrower and its Subsidiaries as at the end of such Fiscal Quarter
and the consolidated and consolidating (by store) statements of operations
and cash flows for such Fiscal Quarter, and the portion of the Fiscal Year
ended with such Fiscal Quarter, all in reasonable detail. Such financial
statements shall be certified by the chief financial officer of Borrower as
fairly presenting the financial condition, results of operations and cash
flows of Borrower and its Subsidiaries in accordance with GAAP (other than
footnote disclosures), consistently applied, as at such date and for such
periods, subject only to normal year-end accruals and audit adjustments;
(b) As soon as practicable, and in any event within 45 days
after the end of each Fiscal Quarter, a Pricing Certificate setting forth a
calculation of the Funded Debt Ratio as of the last day of such Fiscal
Quarter, and providing reasonable detail as to the calculation thereof,
which calculations in the case of the fourth Fiscal Quarter in any Fiscal
Year shall be based on the preliminary unaudited financial statements of
Borrower and its Subsidiaries for such Fiscal Quarter, and as soon as
practicable thereafter, in the event of any material variance in the actual
calculation of the Funded Debt Ratio from such preliminary calculation, a
revised Pricing Certificate setting forth the actual calculation thereof;
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<PAGE>
(c) As soon as practicable, and in any event within 120 days
after the end of each Fiscal Year, the consolidated and consolidating (by
store) balance sheet of Borrower and its Subsidiaries as at the end of such
Fiscal Year and the consolidated and consolidating (by store) statements of
operations, stockholders' equity and cash flows, in each case of Borrower
and its Subsidiaries for such Fiscal Year, all in reasonable detail. Such
financial statements shall be prepared in accordance with GAAP,
consistently applied, and such consolidated financial statements shall be
accompanied by a report of Price Waterhouse Coopers LLP or other
independent public accountants of recognized standing selected by Borrower
and reasonably satisfactory to the Requisite Lenders, which report shall be
prepared in accordance with generally accepted auditing standards as at
such date, and shall not be subject to any qualifications or exceptions as
to the scope of the audit nor to any other qualification or exception
determined by the Requisite Lenders in their good faith business judgment
to constitute a Material Adverse Effect;
(d) As soon as practicable, and in any event not later than
thirty (30) days before the commencement of each Fiscal Year, a budget and
projection by Fiscal Quarter for that Fiscal Year and by Fiscal Year for
the next two succeeding Fiscal Years, including for the first such Fiscal
---------
Year, projected consolidated balance sheets, statements of operations and
statements of cash flow and, for the second and third such Fiscal Years,
projected consolidated condensed balance sheets and statements of
operations and cash flows of Borrower and its Subsidiaries, all in
reasonable detail;
(e) Promptly after request by the Administrative Agent or any
Lender, copies of any detailed audit reports, management letters or
recommendations submitted to the board of directors (or the audit committee
of the board of directors) of Borrower by independent accountants in
connection with the accounts or books of Borrower or any of its
Subsidiaries, or any audit of any of them;
(f) Promptly after the same (if any) are available, and in any
event within five (5) Banking Days after filing with the Securities and
Exchange Commission, copies of each annual report, proxy or financial
statement or other report or communication sent to the stockholders of
Borrower, and copies of all annual, regular, periodic and special reports
and registration statements which
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<PAGE>
Borrower may file or be required to file with the Securities and Exchange
Commission under Section 13 or 15(d) of the Securities Exchange Act of
1934, as amended, and not otherwise required to be delivered to the Lenders
pursuant to other provisions of this Section 7.1;
---
(g) Promptly after request by the Administrative Agent or any
Lender, copies of any other report or other document that was filed by
Borrower with any Governmental Agency;
(h) Promptly upon a Senior Officer becoming aware, and in any
event within five (5) Banking Days after becoming aware, of the occurrence
of any (i) "reportable event" (as such term is defined in Section 4043 of
ERISA, but excluding such events as to which the PBGC has by regulation
---------
waived the requirement therein contained that it be notified within thirty
days of the occurrence of such event) or (ii) non-exempt "prohibited
transaction" (as such term is defined in Section 406 of ERISA or Section
4975 of the Code) involving any Pension Plan or any trust created
thereunder, telephonic notice specifying the nature thereof, and, no more
than two (2) Banking Days after such telephonic notice, written notice
again specifying the nature thereof and specifying what action Borrower is
taking or proposes to take with respect thereto, and, when known, any
action taken by the Internal Revenue Service with respect thereto;
(i) As soon as practicable, and in any event within two (2)
Banking Days after a Senior Officer becomes aware of the existence of any
condition or event which constitutes a Default or Event of Default,
telephonic notice specifying the nature and period of existence thereof,
and, no more than two (2) Banking Days after such telephonic notice,
written notice again specifying the nature and period of existence thereof
and specifying what action Borrower is taking or proposes to take with
respect thereto;
(j) Promptly upon a Senior Officer becoming aware that (i) any
Person has commenced a legal proceeding with respect to a claim against
Borrower that is $1,000,000 or more in excess of the amount thereof that is
fully covered by insurance, (ii) any creditor under a credit agreement
involving Indebtedness of $5,000,000 or more has given written notice of a
default thereunder on the part of Borrower, (iii) any lessor under a lease
involving
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aggregate rent of $5,000,000 or more has commenced a legal action claiming
a default thereunder on the part of Borrower or (iv) any Person has
commenced a legal proceeding with respect to a claim against Borrower under
a contract that is not a credit agreement or material lease with respect to
a claim of in excess of $1,000,000 or which otherwise may reasonably be
expected to result in a Material Adverse Effect, a written notice
describing the pertinent facts relating thereto and what action Borrower is
taking or proposes to take with respect thereto; and
(k) Such other data and information as from time to time may be
reasonably requested by the Administrative Agent, any Lender (through the
Administrative Agent) or the Requisite Lenders.
7.2 Compliance Certificates. So long as any Advance remains unpaid,
-----------------------
or any other Obligation remains unpaid or unperformed, or any portion of the
Commitments remains outstanding, Borrower shall, at Borrower's sole expense,
deliver to the Administrative Agent for distribution by it to the Lenders
concurrently with the financial statements required pursuant to Sections 7.1(a)
------
and 7.1(c), a Compliance Certificate signed by a Senior Officer.
------
Article 8
CONDITIONS
----------
8.1 Initial Advances, Etc. The obligation of each Lender to make the
----------------------
initial Advance to be made by it, and the obligation of the Issuing Lender to
issue the initial Letter of Credit, is subject to the following conditions
precedent, each of which shall be satisfied prior to the making of the initial
Advances (unless all of the Lenders, in their sole and absolute discretion,
shall agree otherwise):
(a) The Administrative Agent shall have received all of the
following, each of which shall be originals unless otherwise specified,
each properly executed by a Responsible Official of each party thereto,
each dated as of the Closing Date and each in form and substance
satisfactory to the Administrative Agent and its legal counsel (unless
otherwise specified or, in the case of the date of any of the following,
unless the Administrative Agent otherwise agrees or directs):
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(1) at least one (1) executed counterpart of this
Agreement, together with arrangements satisfactory to the
Administrative Agent for additional executed counterparts, sufficient
in number for distribution to the Lenders and Borrower;
(2) Line A Notes executed by Borrower in favor of each
Lender, each in a principal amount equal to that Lender's Pro Rata
Share of the Line A Commitment;
(3) Line B Notes executed by Borrower in favor of each
Lender, each in a principal amount equal to that Lender's Pro Rata
Share of the Line B Commitment.
(4) the Subsidiary Guaranty executed by all Subsidiary
Guarantors;
(5) the Swing Line Documents executed by Borrower;
(6) with respect to Borrower and the Subsidiary Guarantors,
such documentation as the Administrative Agent may reasonably require
to establish the due organization, valid existence and good standing
of Borrower and the Subsidiary Guarantors, their qualification to
engage in business in each material jurisdiction in which it is
engaged in business or required to be so qualified, their authority to
execute, deliver and perform the Loan Documents to which it is a
Party, the identity, authority and capacity of each Responsible
Official thereof authorized to act on its behalf, including certified
---------
copies of articles of incorporation and amendments thereto, bylaws and
amendments thereto, certificates of good standing and/or qualification
to engage in business, tax clearance certificates, certificates of
corporate resolutions, incumbency certificates, Certificates of
Responsible Officials, and the like;
(7) the Opinion of Counsel;
(8) a Certificate of a Responsible Official of Borrower
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certifying that the representation contained in Section 4.17 is, to
----
the best of his or her knowledge, true and correct;
(9) a Certificate of a Responsible Official of Borrower
certifying that the conditions specified in Sections 8.1(h) and 8.1(i)
----- ------
have been satisfied; and
(10) such other assurances, certificates, documents or
consents as the Administrative Agent or the Requisite Lenders
reasonably may require, as may be notified to Borrower at least two
(2) Banking Days prior to the Closing Date.
(b) The arrangement fee payable pursuant to Section 3.2 shall
---
have been paid.
(c) The participation fee payable pursuant to Section 3.3 shall
---
have been paid.
(d) The agency fee payable pursuant to Section 3.4 shall have
---
been paid.
(e) All Indebtedness outstanding under the Prior Credit Facility
shall have been (or shall concurrently be) paid and the same shall,
together with any Liens securing such Indebtedness, have been (or shall
concurrently be) terminated.
(f) The Administrative Agent shall be satisfied with the results
of its review of the Projections.
(g) The reasonable costs and expenses of the Administrative
Agent in connection with the preparation of the Loan Documents payable
pursuant to Section 11.3, and invoiced to Borrower prior to the Closing
----
Date, shall have been paid.
(h) The representations and warranties of Borrower contained in
Article 4 shall be true and correct in all material respects.
---------
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<PAGE>
(i) Borrower and any other Parties shall be in compliance with
all the terms and provisions of the Loan Documents, and giving effect to
the initial Advance, no Default or Event of Default shall have occurred and
be continuing.
(j) All legal matters relating to the Loan Documents shall be
satisfactory to Sheppard, Mullin, Richter & Hampton LLP, special counsel to
the Administrative Agent.
(k) The Closing Date shall have occurred on or before March 10,
1999.
8.2 Advances Under Line B Commitment. The obligation of each Lender
--------------------------------
to make any Advance under the Line B Commitment is subject to the condition
precedent that, at the date of such Advance, there exists no availability for
further Advances under the Line A Commitment.
8.3 Any Advance, Etc. The obligation of each Lender to make any
-----------------
Advance, and the obligation of the Issuing Lender to issue any Letter of Credit,
is subject to the following conditions precedent (unless the Requisite Lenders
or, in any case where the approval of all of the Lenders is required pursuant to
Section 11.2, all of the Lenders, in their sole and absolute discretion, shall
----
agree otherwise):
(a) except (i) for representations and warranties which
------
expressly speak as of a particular date or are no longer true and correct
as a result of a change which is permitted by this Agreement or (ii) as
disclosed by Borrower and approved in writing by the Requisite Lenders, the
representations and warranties contained in Article 4 (other than Sections
--------- ----------
4.4(a), 4.6 (first sentence), 4.10 and 4.17) shall be true and correct in
------ --- ---- ----
all material respects on and as of the date of the Advance as though made
on that date;
(b) no circumstance or event shall have occurred that
constitutes a Material Adverse Effect since the Closing Date;
(c) other than matters described in Schedule 4.10 or not
-------------
required as of the Closing Date to be therein described, there shall not
be, to the best knowledge of a Senior Officer of Borrower, then pending or
threatened any
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action, suit, proceeding or investigation against or affecting Borrower or
any of its Subsidiaries or any Property of any of them before any
Governmental Agency that constitutes a Material Adverse Effect;
(d) the Administrative Agent shall have timely received a
Request for Loan (or telephonic or other request for Loan referred to in
the second sentence of Section 2.1(c), if applicable), or a Request for
------
Letter of Credit (as applicable), in compliance with Article 2; and
---------
(e) the Administrative Agent shall have received, in form and
substance satisfactory to the Administrative Agent, such other assurances,
certificates, documents or consents related to the foregoing as the
Administrative Agent or Requisite Lenders reasonably may require.
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Article 9
EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT
----------------------------------------------------
9.1 Events of Default. The existence or occurrence of any one or
-----------------
more of the following events, whatever the reason therefor and under any
circumstances whatsoever, shall constitute an Event of Default:
(a) Borrower fails to pay any principal on any of the Notes, or
any portion thereof, on the date when due; or
(b) Borrower fails to pay any interest on any of the Notes, or
any fees under Sections 3.5 or 3.6, or any portion thereof, within two (2)
--- ---
Banking Days after the date when due; or fails to pay any other fee or
amount payable to the Lenders under any Loan Document, or any portion
thereof, within seven (7) Banking Days after demand therefor (provided that
--------
this Section 9.1(b) shall not apply to any failure to pay any amount not
------
paid at a time when Borrower's general operating bank account with the
Administrative Agent has a credit balance in collected funds at least equal
to such amount the Administrative Agent is able to, but fails to, debit
such account pursuant to Section 3.12(b)); or
-------
(c) Borrower fails to comply with any of the covenants contained
in Article 6; or
---------
(d) Borrower fails to comply with Section 7.1(i) in any respect
------
that is materially adverse to the interests of the Lenders; or
(e) Borrower or any other Party fails to perform or observe any
other covenant or agreement (not specified in clause (a), (b), (c) or (d)
- - - -
above) contained in any Loan Document on its part to be performed or
observed within twenty (20) Banking Days after the giving of notice by the
Administrative Agent on behalf of the Requisite Lenders of such Default or,
if such Default is not reasonably susceptible of cure within such period,
within such longer period as is reasonably necessary to effect a cure so
long as Borrower or such Party continues to diligently pursue cure of such
Default but not in any event in
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excess of forty (40) Banking Days; or
(f) Any representation or warranty of Borrower or any other
Party made in any Loan Document, or in any certificate or other writing
delivered by Borrower or such Party pursuant to any Loan Document, proves
to have been incorrect when made or reaffirmed in any respect that is
materially adverse to the interests of the Lenders; or
(g) Borrower (i) fails to pay the principal, or any principal
installment, of any present or future Indebtedness of $5,000,000 or more,
or any guaranty of present or future Indebtedness of $5,000,000 or more, on
its part to be paid, when due (or within any stated grace period), whether
at the stated maturity, upon acceleration, by reason of required prepayment
or otherwise or (ii) fails to perform or observe any other term, covenant
or agreement on its part to be performed or observed, or suffers any event
of default to occur, in connection with any present or future Indebtedness
of $5,000,000 or more, or of any guaranty of present or future Indebtedness
of $5,000,000 or more, if as a result of such failure or sufferance any
holder or holders thereof (or an agent or trustee on its or their behalf)
has the right to declare such Indebtedness due before the date on which it
otherwise would become due or the right to require Borrower to redeem or
purchase, or offer to redeem or purchase, all or any portion of such
Indebtedness; or
(h) Any Loan Document, at any time after its execution and
delivery and for any reason other than the agreement or action (or omission
----- ----
to act) of the Administrative Agent or the Lenders or satisfaction in full
of all the Obligations, ceases to be in full force and effect or is
declared by a court of competent jurisdiction to be null and void, invalid
or unenforceable in any respect which is materially adverse to the
interests of the Lenders; or any Party thereto denies in writing that it
has any or further liability or obligation under any Loan Document, or
purports to revoke, terminate or rescind same; or
(i) A final judgment against Borrower is entered for the payment
of money in excess of $2,000,000 (not covered by insurance or for which an
insurer has reserved its rights) and, absent procurement of a stay of
execution, such judgment remains unsatisfied for thirty (30) calendar days
after the date of entry of judgment, or in any event later than five (5)
days prior to the
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date of any proposed sale thereunder; or any writ or warrant of attachment
or execution or similar process is issued or levied against all or any
material part of the Property of Borrower and is not released, vacated or
fully bonded within thirty (30) calendar days after its issue or levy; or
(j) Borrower institutes or consents to the institution of any
proceeding under a Debtor Relief Law relating to it or to all or any
material part of its Property, or is unable or admits in writing its
inability to pay its debts as they mature, or makes an assignment for the
benefit of creditors; or applies for or consents to the appointment of any
receiver, trustee, custodian, conservator, liquidator, rehabilitator or
similar officer for it or for all or any material part of its Property; or
any receiver, trustee, custodian, conservator, liquidator, rehabilitator or
similar officer is appointed without the application or consent of that
Person and the appointment continues undischarged or unstayed for sixty
(60) calendar days; or any proceeding under a Debtor Relief Law relating to
any such Person or to all or any part of its Property is instituted without
the consent of that Person and continues undismissed or unstayed for sixty
(60) calendar days; or
(k) The occurrence of an Event of Default (as such term is or
may hereafter be specifically defined in any other Loan Document) under any
other Loan Document; or
(l) Any Pension Plan maintained by Borrower is finally
determined by the PBGC to have a material "accumulated funding deficiency"
as that term is defined in Section 302 of ERISA in excess of an amount
equal to 5% of the consolidated total assets of Borrower as of the most-
recently ended Fiscal Quarter; or
(m) The Requisite Lenders notify Borrower that they have
determined in good faith that a circumstance or event has occurred that
constitutes a Material Adverse Effect and such circumstance or event
remains unremedied for seven (7) Banking Days (or, if such circumstance or
event is not capable of being remedied within such period, for such longer
period as it is reasonably necessary to effect a remedy so long as Borrower
continues to diligently pursue remedy of such Material Adverse Effect but
not in any event longer than twenty (20) Banking Days).
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<PAGE>
9.2 Remedies Upon Event of Default. Without limiting any other
------------------------------
rights or remedies of the Administrative Agent or the Lenders provided for
elsewhere in this Agreement, or the other Loan Documents, or by applicable Law,
or in equity, or otherwise:
(a) Upon the occurrence, and during the continuance, of any
Event of Default other than an Event of Default described in Section
----- ----
9.1(j):
------
(1) the Commitments to make Advances and all other
obligations of the Administrative Agent or the Lenders and all rights
of Borrower and any other Parties under the Loan Documents shall be
suspended without notice to or demand upon Borrower, which are
expressly waived by Borrower, except that all of the Lenders or the
------
Requisite Lenders (as the case may be, in accordance with Section
11.2) may waive an Event of Default or, without waiving, determine,
----
upon terms and conditions satisfactory to the Lenders or Requisite
Lenders, as the case may be, to reinstate the Commitments and such
other obligations and rights and make further Advances, which waiver
or determination shall apply equally to, and shall be binding upon,
all the Lenders;
(2) the Issuing Lender may, with the approval of the
Administrative Agent on behalf of the Requisite Lenders, demand
immediate payment by Borrower of an amount equal to the aggregate
amount of all outstanding Letters of Credit to be held by the Issuing
Lender in an interest-bearing cash collateral account as collateral
hereunder (which shall be returned to Borrower if such Letter of
Credit expires undrawn and all other Obligations are then satisfied);
and
(3) the Requisite Lenders may request the Administrative
Agent to, and the Administrative Agent thereupon shall, terminate the
Commitments and/or declare all or any part of the unpaid principal of
all Notes, all interest accrued and unpaid thereon and all other
amounts payable under the Loan Documents to be forthwith due and
payable, whereupon the same shall become and be forthwith due and
payable, without protest, presentment, notice of dishonor, demand or
further notice of any kind, all of which are expressly waived by
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Borrower.
(b) Upon the occurrence of any Event of Default described in
Section 9.1(j):
------
(1) the Commitments to make Advances and all other
obligations of the Administrative Agent or the Lenders and all rights
of Borrower and any other Parties under the Loan Documents shall
terminate without notice to or demand upon Borrower, which are
expressly waived by Borrower, except that all of the Lenders may waive
------
the Event of Default or, without waiving, determine, upon terms and
conditions satisfactory to all the Lenders, to reinstate the
Commitments and such other obligations and rights and make further
Advances, which determination shall apply equally to, and shall be
binding upon, all the Lenders;
(2) an amount equal to the aggregate amount of all
outstanding Letters of Credit shall be immediately due and payable to
the Issuing Lender without notice to or demand upon Borrower, which
are expressly waived by Borrower, to be held by the Issuing Lender in
an interest-bearing cash collateral account as collateral hereunder
(which shall be returned to Borrower if such Letter of Credit expires
undrawn and all other Obligations are then satisfied); and
(3) the unpaid principal of all Notes, all interest accrued
and unpaid thereon and all other amounts payable under the Loan
Documents shall be forthwith due and payable, without protest,
presentment, notice of dishonor, demand or further notice of any kind,
all of which are expressly waived by Borrower.
(c) Upon the occurrence of any Event of Default, the Lenders and
the Administrative Agent, or any of them, without notice to (except as
------
expressly provided for in any Loan Document) or demand upon Borrower, which
are expressly waived by Borrower (except as to notices expressly provided
------
for in any Loan Document), may proceed (but only with the consent of the
Requisite Lenders) to protect, exercise and enforce their rights and
remedies under the Loan Documents against Borrower and any other Party and
such other rights and remedies as are provided by Law or equity.
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<PAGE>
(d) The order and manner in which the Lenders' rights and
remedies are to be exercised shall be determined by the Requisite Lenders
in their sole discretion, and all payments received by the Administrative
Agent and the Lenders, or any of them, shall be applied first to the costs
and expenses (including reasonable attorneys' fees and disbursements) of
the Administrative Agent and of the Lenders, and thereafter paid pro rata
to the Lenders in the same proportions that the aggregate Obligations owed
to each Lender under the Loan Documents bear to the aggregate Obligations
owed under the Loan Documents to all the Lenders, without priority or
preference among the Lenders. Regardless of how each Lender may treat
payments for the purpose of its own accounting, for the purpose of
computing Borrower's Obligations hereunder and under the Notes, payments
shall be applied first, to the costs and expenses of the Administrative
-----
Agent and the Lenders, as set forth above, second, to the payment of
------
accrued and unpaid interest due under any Loan Documents to and including
the date of such application (ratably, and without duplication, according
to the accrued and unpaid interest due under each of the Loan Documents),
and third, to the payment of all other amounts (including principal and
-----
fees) then owing to the Administrative Agent or the Lenders under the Loan
Documents. No application of payments will cure any Event of Default, or
prevent acceleration, or continued acceleration, of amounts payable under
the Loan Documents, or prevent the exercise, or continued exercise, of
rights or remedies of the Lenders hereunder or thereunder or at Law or in
equity.
Article 10
THE ADMINISTRATIVE AGENT
------------------------
10.1 Appointment and Authorization. Subject to Section 10.8, each
----------------------------- ----
Lender hereby irrevocably appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers under the
Loan Documents as are delegated to the Administrative Agent by the terms thereof
or are reasonably incidental, as determined by the Administrative Agent,
thereto. This appointment and authorization is intended solely for the purpose
of facilitating the servicing of the Loans and does not constitute appointment
of the Administrative Agent as trustee for any Lender or as representative of
any Lender for any other
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purpose and, except as specifically set forth in the Loan Documents to the
------
contrary, the Administrative Agent shall take such action and exercise such
powers only in an administrative and ministerial capacity.
10.2 Administrative Agent and Affiliates. Wells Fargo Bank, National
-----------------------------------
Association (and each successor Administrative Agent) has the same rights and
powers under the Loan Documents as any other Lender and may exercise the same as
though it were not the Administrative Agent, and the term "Lender" or "Lenders"
includes Wells Fargo Bank, National Association in its individual capacity.
Wells Fargo Bank, National Association (and each successor Administrative Agent)
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of banking, trust or other business with Borrower, any Subsidiary
thereof, or any Affiliate of Borrower or any Subsidiary thereof, as if it were
not the Administrative Agent and without any duty to account therefor to the
Lenders. Wells Fargo Bank, National Association (and each successor
Administrative Agent) need not account to any other Lender for any monies
received by it for reimbursement of its costs and expenses as Administrative
Agent hereunder, or (subject to Section 11.10) for any monies received by it in
-----
its capacity as a Lender hereunder. The Administrative Agent shall not be
deemed to hold a fiduciary relationship with any Lender and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or otherwise exist against the Administrative Agent.
10.3 Proportionate Interest in any Collateral. The Administrative
----------------------------------------
Agent, on behalf of all the Lenders, shall hold in accordance with the Loan
Documents all items of any collateral or interests therein received or held by
the Administrative Agent. Subject to the Administrative Agent's and the
Lenders' rights to reimbursement for their costs and expenses hereunder
(including reasonable attorneys' fees and disbursements and other professional
- ----------
services) and subject to the application of payments in accordance with Section
9.2(d), each Lender shall have an interest in such collateral or interests
- ------
therein in the same proportions that the aggregate Obligations owed such Lender
under the Loan Documents bear to the aggregate Obligations owed under the Loan
Documents to all the Lenders, without priority or preference among the Lenders.
10.4 Lenders' Credit Decisions. Each Lender agrees that it has,
-------------------------
independently and without reliance upon the Administrative Agent, any other
Lender or the directors, officers, agents, employees or attorneys of the
Administrative Agent or
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of any other Lender, and instead in reliance upon information supplied to it by
or on behalf of Borrower and upon such other information as it has deemed
appropriate, made its own independent credit analysis and decision to enter into
this Agreement. Each Lender also agrees that it shall, independently and without
reliance upon the Administrative Agent, any other Lender or the directors,
officers, agents, employees or attorneys of the Administrative Agent or of any
other Lender, continue to make its own independent credit analyses and decisions
in acting or not acting under the Loan Documents.
10.5 Action by Administrative Agent.
------------------------------
(a) Absent actual knowledge of the Administrative Agent of the
existence of a Default, the Administrative Agent may assume that no Default
has occurred and is continuing, unless the Administrative Agent has
received notice from Borrower stating the nature of the Default or has
received notice from a Lender stating the nature of the Default and that
such Lender considers the Default to have occurred and to be continuing.
(b) The Administrative Agent has only those obligations under
the Loan Documents as are expressly set forth therein.
(c) Except for any obligation expressly set forth in the Loan
------
Documents and as long as the Administrative Agent may assume that no Event
of Default has occurred and is continuing, the Administrative Agent may,
but shall not be required to, exercise its discretion to act or not act,
except that the Administrative Agent shall be required to act or not act
------
upon the instructions of the Requisite Lenders (or of all the Lenders, to
the extent required by Section 11.2) and those instructions shall be
----
binding upon the Administrative Agent and all the Lenders, provided that
--------
the Administrative Agent shall not be required to act or not act if to do
so would be contrary to any Loan Document or to applicable Law or would
result, in the reasonable judgment of the Administrative Agent, in
substantial risk of liability to the Administrative Agent.
(d) If the Administrative Agent has received a notice specified
in clause (a), the Administrative Agent shall immediately give notice
-
thereof to the Lenders and shall act or not act upon the instructions of
the Requisite
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<PAGE>
Lenders (or of all the Lenders, to the extent required by Section 11.2),
----
provided that the Administrative Agent shall not be required to act or not
--------
act if to do so would be contrary to any Loan Document or to applicable Law
or would result, in the reasonable judgment of the Administrative Agent, in
substantial risk of liability to the Administrative Agent, and except that
------
if the Requisite Lenders (or all the Lenders, if required under Section
11.2) fail, for five (5) Banking Days after the receipt of notice from the
----
Administrative Agent, to instruct the Administrative Agent, then the
Administrative Agent, in its sole discretion, may act or not act as it
deems advisable for the protection of the interests of the Lenders.
(e) The Administrative Agent shall have no liability to any
Lender for acting, or not acting, as instructed by the Requisite Lenders
(or all the Lenders, if required under Section 11.2), notwithstanding any
----
other provision hereof.
10.6 Liability of Administrative Agent. Neither the Administrative
---------------------------------
Agent nor any of its directors, officers, agents, employees or attorneys shall
be liable for any action taken or not taken by them under or in connection with
the Loan Documents, except for their own gross negligence or willful misconduct.
------
Without limitation on the foregoing, the Administrative Agent and its directors,
officers, agents, employees and attorneys:
(a) May treat the payee of any Note as the holder thereof until
the Administrative Agent receives notice of the assignment or transfer
thereof, in form satisfactory to the Administrative Agent, signed by the
payee, and may treat each Lender as the owner of that Lender's interest in
the Obligations for all purposes of this Agreement until the Administrative
Agent receives notice of the assignment or transfer thereof, in form
satisfactory to the Administrative Agent, signed by that Lender;
(b) May consult with legal counsel (including in-house legal
---------
counsel), accountants (including in-house accountants) and other
---------
professionals or experts selected by it, or with legal counsel, accountants
or other professionals or experts for Borrower and/or their Subsidiaries or
the Lenders, and shall not be liable for any action taken or not taken by
it in good faith in accordance with any advice of such legal counsel,
accountants or other professionals or experts;
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<PAGE>
(c) Shall not be responsible to any Lender for any statement,
warranty or representation made in any of the Loan Documents or in any
notice, certificate, report, request or other statement (written or oral)
given or made in connection with any of the Loan Documents;
(d) Except to the extent expressly set forth in the Loan
------
Documents, shall have no duty to ask or inquire as to the performance or
observance by Borrower or its Subsidiaries of any of the terms, conditions
or covenants of any of the Loan Documents or to inspect any collateral or
any Property, books or records of Borrower or their Subsidiaries;
(e) Will not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness, effectiveness,
sufficiency or value of any Loan Document, any other instrument or writing
furnished pursuant thereto or in connection therewith, or any collateral;
(f) Will not incur any liability by acting or not acting in
reliance upon any Loan Document, notice, consent, certificate, statement,
request or other instrument or writing believed in good faith by it to be
genuine and signed or sent by the proper party or parties; and
(g) Will not incur any liability for any arithmetical error in
computing any amount paid or payable by Borrower or any Subsidiary or
Affiliate thereof or paid or payable to or received or receivable from any
Lender under any Loan Document, including, without limitation, principal,
---------
interest, commitment fees, Advances and other amounts; provided that,
--------
promptly upon discovery of such an error in computation, the Administrative
Agent, the Lenders and (to the extent applicable) Borrower and/or its
Subsidiaries or Affiliates shall make such adjustments as are necessary to
correct such error and to restore the parties to the position that they
would have occupied had the error not occurred.
10.7 Indemnification. Each Lender shall, ratably in accordance with
---------------
its Pro Rata Share of the Commitments (if the Commitments are then in effect) or
in accordance with its proportion of the aggregate Indebtedness then evidenced
by the Notes (if the Commitments have then been terminated), indemnify and hold
the
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Administrative Agent and its directors, officers, agents, employees and
attorneys harmless against any and all claims, demands, actions, or causes of
action and any and all liabilities, losses, costs or expenses related thereto
(including reasonable attorneys' fees and disbursements) that may be imposed on,
- ----------
incurred by or asserted against it or them in any way relating to or arising out
of the Loan Documents (other than losses incurred by reason of the failure of
Borrower to pay the Indebtedness represented by the Notes) or any action taken
or not taken by it as Administrative Agent thereunder, except such as result
------
from its own gross negligence or willful misconduct. Without limitation on the
foregoing, each Lender shall reimburse the Administrative Agent upon demand for
that Lender's Pro Rata Share of any out-of-pocket cost or expense incurred by
the Administrative Agent in connection with the negotiation, preparation,
execution, delivery, amendment, waiver, restructuring, reorganization (including
---------
a bankruptcy reorganization), enforcement or attempted enforcement of the Loan
Documents, to the extent that Borrower or any other Party is required by Section
11.3 to pay that cost or expense but fails to do so upon demand. Nothing in
- ----
this Section 10.7 shall entitle the Administrative Agent or any indemnitee
----
referred to above to recover any amount from the Lenders if and to the extent
that such amount has theretofore been recovered from Borrower or any of its
Subsidiaries. To the extent that the Administrative Agent or any indemnitee
referred to above is later reimbursed such amount by Borrower or any of its
Subsidiaries, it shall return the amounts paid to it by the Lenders in respect
of such amount.
10.8 Successor Administrative Agent. The Administrative Agent may,
------------------------------
and at the request of the Requisite Lenders shall, resign as Administrative
Agent upon reasonable notice to the Lenders and Borrower effective upon
acceptance of appointment by a successor Administrative Agent. If the
Administrative Agent shall resign as Administrative Agent under this Agreement,
the Requisite Lenders shall appoint from among the Lenders a successor
Administrative Agent for the Lenders, which successor Administrative Agent shall
be approved by Borrower (and such approval shall not be unreasonably withheld or
delayed). If no successor Administrative Agent is appointed prior to the
effective date of the resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the Lenders and
Borrower, a successor Administrative Agent from among the Lenders. Upon the
acceptance of its appointment as successor Administrative Agent hereunder, such
successor Administrative Agent shall succeed to all the rights, powers and
duties of the retiring Administrative Agent and the term "Administrative Agent"
shall mean such successor Administrative Agent and the retiring Administrative
Agent's
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<PAGE>
appointment, powers and duties as Administrative Agent shall be terminated.
After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Article 10, and Sections 11.3,
---------- ----
11.11 and 11.22, shall inure to its benefit as to any actions taken or omitted
- ----- -----
to be taken by it while it was Administrative Agent under this Agreement.
Notwithstanding the foregoing, if (a) the Administrative Agent has not been paid
its agency fees under Section 3.5 or has not been reimbursed for any expense
---
reimbursable to it under Section 11.3, in either case for a period of at least
----
one (1) year and (b) no successor Administrative Agent has accepted appointment
as Administrative Agent by the date which is thirty (30) days following a
retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become effective
and the Lenders shall designate a Lender to receive all notices from Borrower
during this period but all of the Lenders shall perform all of the duties of the
Administrative Agent hereunder until such time, if any, as the Requisite Lenders
appoint a successor Administrative Agent as provided for above.
10.9 No Obligations of Borrower. Nothing contained in this Article
--------------------------
10 shall be deemed to impose upon Borrower any obligation in respect of the due
and punctual performance by the Administrative Agent of its obligations to the
Lenders under any provision of this Agreement, and Borrower shall have no
liability to the Administrative Agent or any of the Lenders in respect of any
failure by the Administrative Agent or any Lender to perform any of its
obligations to the Administrative Agent or the Lenders under this Agreement.
Without limiting the generality of the foregoing, where any provision of this
Agreement relating to the payment of any amounts due and owing under the Loan
Documents provides that such payments shall be made by Borrower to the
Administrative Agent for the account of the Lenders, Borrower's obligations to
the Lenders in respect of such payments shall be deemed to be satisfied upon the
making of such payments to the Administrative Agent in the manner provided by
this Agreement. In addition, Borrower may rely on a written statement by the
Administrative Agent to the effect that it has obtained the written consent of
the Requisite Lenders or all of the Lenders, as applicable under Section 11.2,
----
in connection with a waiver, amendment, consent, approval or other action by the
Lenders hereunder, and shall have no obligation to verify or confirm the same.
Article 11
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<PAGE>
MISCELLANEOUS
-------------
11.1 Cumulative Remedies; No Waiver. The rights, powers, privileges
------------------------------
and remedies of the Administrative Agent and the Lenders provided herein or in
any Note or other Loan Document are cumulative and not exclusive of any right,
power, privilege or remedy provided by Law or equity. No failure or delay on
the part of the Administrative Agent or any Lender in exercising any right,
power, privilege or remedy may be, or may be deemed to be, a waiver thereof; nor
may any single or partial exercise of any right, power, privilege or remedy
preclude any other or further exercise of the same or any other right, power,
privilege or remedy. The terms and conditions of Article 8 hereof are inserted
---------
for the sole benefit of the Administrative Agent and the Lenders; the same may
be waived in whole or in part, with or without terms or conditions, in respect
of any Loan without prejudicing the Administrative Agent's or the Lenders'
rights to assert them in whole or in part in respect of any other Loan.
11.2 Amendments; Consents. No amendment, modification, supplement,
--------------------
extension, termination or waiver of any provision of this Agreement or any other
Loan Document, no approval or consent thereunder, and no consent to any
departure by Borrower or any other Party therefrom, may in any event be
effective unless in writing signed by the Administrative Agent with the written
approval of the Requisite Lenders (and, in the case of any amendment,
modification or supplement of or to any Loan Document to which Borrower is a
Party, signed by Borrower, and, in the case of any amendment, modification or
supplement to Article 10, signed by the Administrative Agent), and then only in
----------
the specific instance and for the specific purpose given; and, without the
approval in writing of all the Lenders, no amendment, modification, supplement,
termination, waiver or consent may be effective:
(a) To amend or modify the principal of, or the amount of
principal, principal prepayments or the rate of interest payable on, any
Note, or the amount of the Commitments or the Pro Rata Share of any Lender
or the amount of any commitment fee payable to any Lender, or any other fee
or amount payable to any Lender under the Loan Documents or to waive an
Event of Default consisting of the failure of Borrower to pay when due
principal, interest or any fee;
(b) To postpone any date fixed for any payment of principal of,
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<PAGE>
prepayment of principal of or any installment of interest on, any Note or
any installment of any fee, or to extend the term of the Commitments;
(c) To amend the provisions of the definition of "Requisite
---------
Lenders" or "Line A Maturity Date" or "Line B Maturity Date"; or
------- -------------------- --------------------
(d) To release any Subsidiary Guarantor from its obligations
under the Subsidiary Guaranty;
(e) To amend or waive Article 8 or this Section 11.2; or
--------- ----
(f) To amend any provision of this Agreement that expressly
requires the consent or approval of all the Lenders.
Any amendment, modification, supplement, termination, waiver or consent pursuant
to this Section 11.2 shall apply equally to, and shall be binding upon, all the
----
Lenders and the Administrative Agent.
11.3 Costs and Expenses. Borrower shall pay within seven (7) Banking
------------------
Days after demand, accompanied by an invoice therefor, the reasonable costs and
expenses of the Administrative Agent in connection with the negotiation,
preparation, syndication, execution and delivery of the Loan Documents and any
amendment thereto or waiver thereof. Borrower shall also pay on demand,
accompanied by an invoice therefor, the reasonable out-of-pocket costs and
expenses of the Administrative Agent and the Lenders in connection with the
refinancing, restructuring, reorganization (including a bankruptcy
---------
reorganization) and enforcement or attempted enforcement of the Loan Documents,
and any matter related thereto. The foregoing costs and expenses shall include
filing fees, recording fees, title insurance fees, appraisal fees, search fees,
and other out-of-pocket expenses and the reasonable fees and out-of-pocket
expenses of any legal counsel, independent public accountants and other outside
experts retained by the Administrative Agent or any Lender, whether or not such
costs and expenses are incurred or suffered by the Administrative Agent or any
Lender in connection with or during the course of any bankruptcy or insolvency
proceedings of any of Borrower or any Subsidiary thereof. Any amount payable to
the Administrative Agent or any Lender under this Section 11.3 shall bear
----
interest from the seventh Banking Day following the date of demand for payment
at the Default Rate.
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<PAGE>
11.4 Nature of Lenders' Obligations. The obligations of the Lenders
------------------------------
hereunder are several and not joint or joint and several. Nothing contained in
this Agreement or any other Loan Document and no action taken by the
Administrative Agent or the Lenders or any of them pursuant hereto or thereto
may, or may be deemed to, make the Lenders a partnership, an association, a
joint venture or other entity, either among themselves or with the Borrower or
any Affiliate of any of Borrower. A default by any Lender will not increase the
Pro Rata Share of the Commitments attributable to any other Lender. Any Lender
not in default may, if it desires, assume in such proportion as the
nondefaulting Lenders agree the obligations of any Lender in default, but is not
obligated to do so. The Administrative Agent agrees that it will use its best
efforts either to induce promptly the other Lenders to assume the obligations of
a Lender in default or to obtain promptly another Lender, reasonably
satisfactory to Borrower, to replace such a Lender in default.
11.5 Survival of Representations and Warranties. All representations
------------------------------------------
and warranties contained herein or in any other Loan Document, or in any
certificate or other writing delivered by or on behalf of any one or more of the
Parties to any Loan Document, will survive the making of the Loans hereunder and
the execution and delivery of the Notes, and have been or will be relied upon by
the Administrative Agent and each Lender, notwithstanding any investigation made
by the Administrative Agent or any Lender or on their behalf.
11.6 Notices. Except as otherwise expressly provided in the Loan
------- ------
Documents, all notices, requests, demands, directions and other communications
provided for hereunder or under any other Loan Document must be in writing and
must be mailed, telegraphed, telecopied, dispatched by commercial courier or
delivered to the appropriate party at the address set forth on the signature
pages of this Agreement or other applicable Loan Document or, as to any party to
any Loan Document, at any other address as may be designated by it in a written
notice sent to all other parties to such Loan Document in accordance with this
Section. Except as otherwise expressly provided in any Loan Document, if any
------
notice, request, demand, direction or other communication required or permitted
by any Loan Document is given by mail it will be effective on the earlier of
receipt or the fourth Banking Day after deposit in the United States mail with
first class or airmail postage prepaid; if given by telegraph or cable, when
delivered to the telegraph company with charges prepaid; if given by telecopier,
when sent; if dispatched by commercial courier, on the scheduled delivery date;
or if given by personal delivery, when delivered.
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<PAGE>
11.7 Execution of Loan Documents. Unless the Administrative Agent
---------------------------
otherwise specifies with respect to any Loan Document, (a) this Agreement and
any other Loan Document may be executed in any number of counterparts and any
party hereto or thereto may execute any counterpart, each of which when executed
and delivered will be deemed to be an original and all of which counterparts of
this Agreement or any other Loan Document, as the case may be, when taken
together will be deemed to be but one and the same instrument and (b) execution
of any such counterpart may be evidenced by a telecopier transmission of the
signature of such party. The execution of this Agreement or any other Loan
Document by any party hereto or thereto will not become effective until
counterparts hereof or thereof, as the case may be, have been executed by all
the parties hereto or thereto.
11.8 Binding Effect; Assignment.
--------------------------
(a) This Agreement and the other Loan Documents to which
Borrower is a Party will be binding upon and inure to the benefit of
Borrower, the Administrative Agent, each of the Lenders, and their
respective successors and assigns, except that Borrower may not assign its
------
rights hereunder or thereunder or any interest herein or therein without
the prior written consent of all the Lenders. Each Lender represents that
it is not acquiring its Note with a view to the distribution thereof within
the meaning of the Securities Act of 1933, as amended (subject to any
requirement that disposition of such Note must be within the control of
such Lender). Any Lender may at any time pledge its Note or any other
instrument evidencing its rights as a Lender under this Agreement to a
Federal Reserve Bank, but no such pledge shall release that Lender from its
obligations hereunder or grant to such Federal Reserve Bank the rights of a
Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender
may assign to one or more Eligible Assignees all or any portion of its Pro
Rata Share of the Commitments; provided that (i) such Eligible Assignee, if
--------
not then a Lender or an Affiliate of the assigning Lender, shall be
approved by the Administrative Agent and (if no Event of Default then
exists) Borrower (neither of which approvals shall be unreasonably withheld
or delayed), (ii) such assignment shall be evidenced by a Commitments
Assignment and Acceptance, a copy of which shall be furnished to the
Administrative Agent as hereinbelow
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<PAGE>
provided, (iii) except in the case of an assignment to an Affiliate of the
------
assigning Lender, to another Lender or of the entire remaining Commitments
of the assigning Lender, the assignment shall not assign a Pro Rata Share
of the Commitments that is equivalent to less than $5,000,000 and (iv) the
effective date of any such assignment shall be as specified in the
Commitments Assignment and Acceptance, but not earlier than the date which
is five (5) Banking Days after the date the Administrative Agent has
received the Commitments Assignment and Acceptance. Upon the effective date
of such Commitments Assignment and Acceptance, the Eligible Assignee named
therein shall be a Lender for all purposes of this Agreement, with the Pro
Rata Share of the Commitments therein set forth and, to the extent of such
Pro Rata Share, the assigning Lender shall be released from its further
obligations under this Agreement. Borrower agrees that it shall execute and
deliver (against delivery by the assigning Lender to Borrower of its Note)
to such assignee Lender, Notes evidencing that assignee Lender's Pro Rata
Share of the Commitments, and to the assigning Lender, Notes evidencing the
remaining balance Pro Rata Share retained by the assigning Lender.
(c) By executing and delivering a Commitments Assignment and
Acceptance, the Eligible Assignee thereunder acknowledges and agrees that:
(i) other than the representation and warranty that the assigning Lender is
the legal and beneficial owner of the Pro Rata Share of the Commitments
being assigned thereby free and clear of any Lien or other adverse claim,
the assigning Lender has made no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or the
execution, legality, validity, enforceability, genuineness or sufficiency
of this Agreement or any other Loan Document; (ii) the assigning Lender has
made no representation or warranty and assumes no responsibility with
respect to the financial condition of Borrower or the performance by
Borrower of the Obligations; (iii) it has received a copy of this
Agreement, together with copies of the most recent financial statements
delivered pursuant to Section 7.1 and such other documents and information
---
as it has deemed appropriate to make its own credit analysis and decision
to enter into such Commitments Assignment and Acceptance; (iv) it will,
independently and without reliance upon the Administrative Agent or any
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
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<PAGE>
Agreement; (v) it appoints and authorizes the Administrative Agent to take such
action and to exercise such powers under this Agreement as are delegated to the
Administrative Agent by this Agreement; and (vi) it will perform in accordance
with their terms all of the obligations which by the terms of this Agreement are
required to be performed by it as a Lender.
(d) The Administrative Agent shall maintain at the
Administrative Agent's Office a copy of each Commitments Assignment and
Acceptance delivered to it and a register (the "Register") of the names and
address of each of the Lenders and the Pro Rata Share of the Commitments
held by each Lender, giving effect to each Commitments Assignment and
Acceptance. The Register shall be available during normal business hours
for inspection by Borrower or any Lender upon reasonable prior notice to
the Administrative Agent. After receipt of a completed Commitments
Assignment and Acceptance executed by any Lender and an Eligible Assignee,
and receipt of an assignment fee of $3,500 from such Lender or Eligible
Assignee, the Administrative Agent shall, promptly following the effective
date thereof, provide to Borrower and the Lenders a revised Schedule 1.1
------------
giving effect thereto. Borrower, the Administrative Agent and the Lenders
shall deem and treat the Persons listed as Lenders in the Register as the
holders and owners of the Pro Rata Share of the Commitments listed therein
for all purposes hereof, and no assignment or transfer of any such Pro Rata
Share of the Commitments shall be effective, in each case unless and until
a Commitments Assignment and Acceptance effecting the assignment or
transfer thereof shall have been accepted by the Administrative Agent and
recorded in the Register as provided above. Prior to such recordation, all
amounts owed with respect to the applicable Pro Rata Share of the
Commitments shall be owed to the Lender listed in the Register as the owner
thereof, and any request, authority or consent of any Person who, at the
time of making such request or giving such authority or consent, is listed
in the Register as a Lender shall be conclusive and binding on any
subsequent holder, assignee or transferee of the corresponding Pro Rata
Share of the Commitments.
(e) Each Lender may from time to time grant participations to
one or more banks or other financial institutions in a portion of its Pro
Rata Share of the Commitments; provided, however, that (i) such Lender's
-------- -------
obligations under this Agreement shall remain unchanged, (ii) such Lender
shall
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<PAGE>
remain solely responsible to the other parties hereto for the performance
of such obligations, (iii) the participating banks or other financial
institutions shall not be a Lender hereunder for any purpose except, if the
------
participation agreement so provides, for the purposes of Sections 3.7, 3.8,
--- ---
11.11 and 11.22 but only to the extent that the cost of such benefits to
----- -----
Borrower does not exceed the cost which Borrower would have incurred in
respect of such Lender absent the participation, (iv) Borrower, the
Administrative Agent and the other Lenders shall continue to deal solely
and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement, (v) the participation interest shall be
expressed as a percentage of the granting Lender's Pro Rata Share of the
Commitments as it then exists and shall not restrict an increase in the
Commitments, or in the granting Lender's Pro Rata Share of the Commitments,
so long as the amount of the participation interest is not affected thereby
and (vi) the consent of the holder of such participation interest shall not
be required for amendments or waivers of provisions of the Loan Documents
other than those which (A) extend the Line A Maturity Date, the Line B
----------
Maturity Date or any other date upon which any payment of money is due to
the Lenders, (B) reduce the rate of interest on the Notes, any fee or any
other monetary amount payable to the Lenders, (C) reduce the amount of any
installment of principal due under the Notes or (D) release any Subsidiary
Guarantor from its obligations under the Subsidiary Guaranty.
11.9 Right of Setoff. If an Event of Default has occurred and is
---------------
continuing, the Administrative Agent or any Lender (but in each case only with
the consent of the Requisite Lenders) may exercise its rights under Article 9 of
the Uniform Commercial Code and other applicable Laws and, to the extent
permitted by applicable Laws, apply any funds in any deposit account maintained
with it by Borrower and/or any Property of Borrower in its possession against
the Obligations.
11.10 Sharing of Setoffs. Each Lender severally agrees that if it,
------------------
through the exercise of any right of setoff, banker's lien or counterclaim
against Borrower, or otherwise, receives payment of the Obligations held by it
that is ratably more than any other Lender, through any means, receives in
payment of the Obligations held by that Lender, then, subject to applicable
Laws: (a) the Lender exercising the right of setoff, banker's lien or
counterclaim or otherwise receiving such payment shall purchase, and shall be
deemed to have simultaneously purchased, from each of the other Lenders a
participation in the Obligations held by the other Lenders
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<PAGE>
and shall pay to the other Lenders a purchase price in an amount so that the
share of the Obligations held by each Lender after the exercise of the right of
setoff, banker's lien or counterclaim or receipt of payment shall be in the same
proportion that existed prior to the exercise of the right of setoff, banker's
lien or counterclaim or receipt of payment; and (b) such other adjustments and
purchases of participations shall be made from time to time as shall be
equitable to ensure that all of the Lenders share any payment obtained in
respect of the Obligations ratably in accordance with each Lender's share of the
Obligations immediately prior to, and without taking into account, the payment;
provided that, if all or any portion of a disproportionate payment obtained as a
- --------
result of the exercise of the right of setoff, banker's lien, counterclaim or
otherwise is thereafter recovered from the purchasing Lender by Borrower or any
Person claiming through or succeeding to the rights of Borrower, the purchase of
a participation shall be rescinded and the purchase price thereof shall be
restored to the extent of the recovery, but without interest. Each Lender that
purchases a participation in the Obligations pursuant to this Section 11.10
-----
shall from and after the purchase have the right to give all notices, requests,
demands, directions and other communications under this Agreement with respect
to the portion of the Obligations purchased to the same extent as though the
purchasing Lender were the original owner of the Obligations purchased. Borrower
expressly consents to the foregoing arrangements and agrees that any Lender
holding a participation in an Obligation so purchased pursuant to this Section
11.10 may exercise any and all rights of setoff, banker's lien or counterclaim
- -----
with respect to the participation as fully as if the Lender were the original
owner of the Obligation purchased.
11.11 Indemnity by Borrower. Borrower agrees to indemnify, save and
---------------------
hold harmless the Administrative Agent and each Lender and their respective
directors, officers, agents, attorneys and employees (collectively the
"Indemnitees") from and against: (a) any and all claims, demands, actions or
- ------------
causes of action (except a claim, demand, action, or cause of action for any
------
amount excluded from the definition of "Taxes" in Section 3.12(d)) if the claim,
-------
demand, action or cause of action arises out of or relates to any act or
omission (or alleged act or omission) of Borrower, its Affiliates or any of its
officers, directors or stockholders relating to the Commitments, the use or
contemplated use of proceeds of any Loan, or the relationship of Borrower and
the Lenders under this Agreement; (b) any administrative or investigative
proceeding by any Governmental Agency arising out of or related to a claim,
demand, action or cause of action described in clause (a) above; and (c) any and
-
all liabilities, losses, costs or
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<PAGE>
expenses (including reasonable attorneys' fees) that any Indemnitee suffers or
---------
incurs as a result of the assertion of any foregoing claim, demand, action or
cause of action; provided that no Indemnitee shall be entitled to
--------
indemnification for any loss caused by its own gross negligence or willful
misconduct or for any loss asserted against it by another Indemnitee. If any
claim, demand, action or cause of action is asserted against any Indemnitee,
such Indemnitee shall promptly notify Borrower, but the failure to so promptly
notify Borrower shall not affect Borrower's obligations under this Section
unless such failure materially prejudices Borrower's right to participate
in the contest of such claim, demand, action or cause of action, as
hereinafter provided. Such Indemnitee may (and shall, if requested by Borrower
in writing) contest the validity, applicability and amount of such claim,
demand, action or cause of action and shall permit Borrower to participate in
such contest. Any Indemnitee that proposes to settle or compromise any claim or
proceeding for which Borrower may be liable for payment of indemnity hereunder
shall give Borrower written notice of the terms of such proposed settlement or
compromise reasonably in advance of settling or compromising such claim or
proceeding and shall obtain Borrower's prior consent (which shall not be
unreasonably withheld or delayed). In connection with any claim, demand, action
or cause of action covered by this Section 11.11 against more than one
-----
Indemnitee, all such Indemnitees shall be represented by the same legal counsel
(which may be a law firm engaged by the Indemnitees or attorneys employed by an
Indemnitee or a combination of the foregoing) selected by the Indemnitees and
reasonably acceptable to Borrower; provided, that if such legal counsel
--------
determines in good faith that representing all such Indemnitees would or could
result in a conflict of interest under Laws or ethical principles applicable to
such legal counsel or that a defense or counterclaim is available to an
Indemnitee that is not available to all such Indemnitees, then to the extent
reasonably necessary to avoid such a conflict of interest or to permit
unqualified assertion of such a defense or counterclaim, each affected
Indemnitee shall be entitled to separate representation by legal counsel
selected by that Indemnitee and reasonably acceptable to Borrower, with all such
legal counsel using reasonable efforts to avoid unnecessary duplication of
effort by counsel for all Indemnitees; and further provided that the
------- --------
Administrative Agent (as an Indemnitee) shall at all times be entitled to
representation by separate legal counsel (which may be a law firm or attorneys
employed by the Administrative Agent or a combination of the foregoing).
Borrower may, upon reasonable prior notice to any Indemnitee, assume control (at
the sole expense of Borrower) of the defense of the claim against such
Indemnitee through legal counsel selected by Borrower and reasonably acceptable
to the Indemnitee, subject to the same proviso with respect to separate counsel
as set forth above, and if
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<PAGE>
Borrower exercises this right to take control, the Indemnitee shall nevertheless
have the right to participate in the defense of such claim. Any obligation or
liability of Borrower to any Indemnitee under this Section 11.11 shall survive
-----
the expiration or termination of this Agreement and the repayment of all Loans
and the payment and performance of all other Obligations owed to the Lenders.
11.12 Nonliability of the Lenders. Borrower acknowledges and agrees
---------------------------
that:
(a) Any inspections of any Property of Borrower made by or
through the Administrative Agent or the Lenders are for purposes of
administration of the Loan only, but Borrower shall be permitted, at its
request, to obtain a copy of any report prepared by a consultant to the
Administrative Agent that does not contain confidential privileged
communications between such consultant and the Administrative Agent
provided that the Administrative Agent shall have no responsibility to
--------
Borrower with respect to the contents of such report;
(b) By accepting or approving anything required to be observed,
performed, fulfilled or given to the Administrative Agent or the Lenders
pursuant to the Loan Documents, neither the Administrative Agent nor the
Lenders shall be deemed to have warranted or represented the sufficiency,
legality, effectiveness or legal effect of the same, or of any term,
provision or condition thereof, and such acceptance or approval thereof
shall not constitute a warranty or representation to anyone with respect
thereto by the Administrative Agent or the Lenders;
(c) The relationship between Borrower and the Administrative
Agent and the Lenders is, and shall at all times remain, solely that of
borrower and lenders; neither the Administrative Agent nor the Lenders
shall under any circumstance be construed to be partners or joint venturers
of Borrower or its Affiliates; neither the Administrative Agent nor the
Lenders shall under any circumstance be deemed to be in a relationship of
confidence or trust or a fiduciary relationship with Borrower or its
Affiliates, or to owe any fiduciary duty to Borrower or its Affiliates;
neither the Administrative Agent nor the Lenders undertake or assume any
responsibility or duty to Borrower or its Affiliates to select, review,
inspect, supervise, pass judgment upon or inform
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<PAGE>
Borrower or its Affiliates of any matter in connection with their Property
or the operations of Borrower or its Affiliates; Borrower and its
Affiliates shall rely entirely upon their own judgment with respect to such
matters; and any review, inspection, supervision, exercise of judgment or
supply of information undertaken or assumed by the Administrative Agent or
the Lenders in connection with such matters is solely for the protection of
the Administrative Agent and the Lenders and neither Borrower nor any other
Person is entitled to rely thereon; and
(d) The Administrative Agent and the Lenders shall not be
responsible or liable to any Person for any loss, damage, liability or
claim of any kind relating to injury or death to Persons or damage to
Property caused by the actions, inaction or negligence of Borrower and/or
its Affiliates and Borrower hereby indemnify and hold the Administrative
Agent and the Lenders harmless on the terms set forth in Section 11.11 from
-----
any such loss, damage, liability or claim.
11.13 No Third Parties Benefited. This Agreement is made for the
--------------------------
purpose of defining and setting forth certain obligations, rights and duties of
Borrower, the Administrative Agent and the Lenders in connection with the Loans,
and is made for the sole benefit of Borrower, the Administrative Agent and the
Lenders, and the Administrative Agent's and the Lenders' successors and assigns.
Except as provided in Sections 11.8 and 11.11, no other Person shall have any
- ------ ---- -----
rights of any nature hereunder or by reason hereof.
11.14 Confidentiality. Each Lender agrees to hold any confidential
---------------
information that it may receive from Borrower pursuant to this Agreement in
confidence, except for disclosure: (a) to other Lenders or (to the extent bound
------
by this Section 11.14) Affiliates of a Lender; (b) to legal counsel and
-----
accountants for Borrower or any Lender; (c) to other professional advisors to
Borrower or any Lender, provided that the recipient has accepted such
information subject to a confidentiality agreement substantially similar to this
Section 11.14; (d) to regulatory officials having jurisdiction over that Lender;
-----
(e) as required by Law or legal process, provided that each Lender agrees to
notify Borrower of any such disclosures unless prohibited by applicable Laws, or
in connection with any legal proceeding to which that Lender and Borrower are
adverse parties; and (f) to another financial institution in connection with a
disposition or proposed disposition to that financial institution of all or part
of that
-100-
<PAGE>
Lender's interests hereunder or a participation interest in its Notes, provided
that the recipient has accepted such information subject to a confidentiality
agreement substantially similar to this Section 11.14. For purposes of the
-----
foregoing, "confidential information" shall mean any information respecting
Borrower or its Subsidiaries reasonably considered by Borrower to be
confidential, other than (i) information previously filed with any Governmental
----------
Agency and available to the public, (ii) information previously published in any
public medium from a source other than, directly or indirectly, that Lender, and
(iii) information previously disclosed by Borrower to any Person not associated
with Borrower which does not owe a professional duty of confidentiality to
Borrower or which has not executed an appropriate confidentiality agreement with
Borrower. Nothing in this Section shall be construed to create or give rise to
any fiduciary duty on the part of the Administrative Agent or the Lenders to
Borrower.
11.15 Further Assurances. Borrower shall, at its expense and without
------------------
expense to the Lenders or the Administrative Agent, do, execute and deliver such
further acts and documents as the Requisite Lenders or the Administrative Agent
from time to time reasonably require for the assuring and confirming unto the
Lenders or the Administrative Agent of the rights hereby created or intended now
or hereafter so to be, or for carrying out the intention or facilitating the
performance of the terms of any Loan Document.
11.16 Integration. This Agreement, together with the other Loan
-----------
Documents and the letter agreement referred to in Sections 3.2 and 3.4,
--- ---
comprises the complete and integrated agreement of the parties on the subject
matter hereof and supersedes all prior agreements, written or oral, on the
subject matter hereof. In the event of any conflict between the provisions of
this Agreement and those of any other Loan Document, the provisions of this
Agreement shall control and govern; provided that the inclusion of supplemental
--------
rights or remedies in favor of the Administrative Agent or the Lenders in any
other Loan Document shall not be deemed a conflict with this Agreement. Each
Loan Document was drafted with the joint participation of the respective parties
thereto and shall be construed neither against nor in favor of any party, but
rather in accordance with the fair meaning thereof.
11.17 Governing Law. Except to the extent otherwise provided
------------- ------
therein, each Loan Document shall be governed by, and construed and enforced in
accordance with, the Laws of Colorado applicable to contracts made and performed
in Colorado.
-101-
<PAGE>
11.18 Severability of Provisions. Any provision in any Loan Document
--------------------------
that is held to be inoperative, unenforceable or invalid as to any party or in
any jurisdiction shall, as to that party or jurisdiction, be inoperative,
unenforceable or invalid without affecting the remaining provisions or the
operation, enforceability or validity of that provision as to any other party or
in any other jurisdiction, and to this end the provisions of all Loan Documents
are declared to be severable.
11.19 Headings. Article and Section headings in this Agreement and
--------
the other Loan Documents are included for convenience of reference only and are
not part of this Agreement or the other Loan Documents for any other purpose.
11.20 Time of the Essence. Time is of the essence of the Loan
-------------------
Documents.
11.21 Foreign Lenders and Participants. Each Lender that is
--------------------------------
incorporated or otherwise organized under the Laws of a jurisdiction other than
the United States of America or any State thereof or the District of Columbia
shall deliver to Borrower (with a copy to the Administrative Agent), on or
before the Closing Date (or on or before accepting an assignment or receiving a
participation interest herein pursuant to Section 11.8, if applicable) two duly
----
completed copies, signed by a Responsible Official, of either Form 1001
(relating to such Lender and entitling it to a complete exemption from
withholding on all payments to be made to such Lender by Borrower pursuant to
this Agreement) or Form 4224 (relating to all payments to be made to such Lender
by the Borrower pursuant to this Agreement) of the United States Internal
Revenue Service or such other evidence (including, if reasonably necessary, Form
---------
W-9) satisfactory to Borrower and the Administrative Agent that no withholding
under the federal income tax laws is required with respect to such Lender.
Thereafter and from time to time, each such Lender shall (a) promptly submit to
Borrower (with a copy to the Administrative Agent), such additional duly
completed and signed copies of one of such forms (or such successor forms as
shall be adopted from time to time by the relevant United States taxing
authorities) as may then be available under then current United States laws and
regulations to avoid, or such evidence as is satisfactory to Borrower and the
Administrative Agent of any available exemption from, United States withholding
taxes in respect of all payments to be made to such Lender by Borrower pursuant
to this Agreement and (b) take such steps as shall not be materially
disadvantageous to it, in the reasonable judgment of such Lender, and as may be
-102-
<PAGE>
reasonably necessary (including the re-designation of its Eurodollar Lending
Office, if any) to avoid any requirement of applicable Laws that Borrower make
any deduction or withholding for taxes from amounts payable to such Lender. In
the event that Borrower or the Administrative Agent become aware that a
participation has been granted pursuant to Section 11.8(e) to a financial
-------
institution that is incorporated or otherwise organized under the Laws of a
jurisdiction other than the United States of America, any State thereof or the
District of Columbia, then, upon request made by Borrower or the Administrative
Agent to the Lender which granted such participation, such Lender shall cause
such participant financial institution to deliver the same documents and
information to Borrower and the Administrative Agent as would be required under
this Section if such financial institution were a Lender.
11.22 Hazardous Material Indemnity. Borrower hereby agrees to
----------------------------
indemnify, hold harmless and defend (by counsel reasonably satisfactory to the
Administrative Agent) the Administrative Agent and each of the Lenders and their
respective directors, officers, employees, agents, successors and assigns from
and against any and all claims, losses, damages, liabilities, fines, penalties,
charges, administrative and judicial proceedings and orders, judgments, remedial
action requirements, enforcement actions of any kind, and all costs and expenses
incurred in connection therewith (including but not limited to reasonable
attorneys' fees and the reasonably allocated costs of attorneys employed by the
Administrative Agent or any Lender, and expenses to the extent that the defense
of any such action has not been assumed by Borrower), arising directly or
indirectly out of (i) the presence on, in, under or about any Real Property of
any Hazardous Materials, or any releases or discharges of any Hazardous
Materials on, under or from any Real Property and (ii) any activity carried on
or undertaken on or off any Real Property by Borrower or any of its Subsidiaries
or any of their predecessors in title, whether prior to or during the term of
this Agreement, and whether by Borrower or any of its Subsidiaries or any
predecessor in title or any employees, agents, contractors or subcontractors of
Borrower or any of its Subsidiaries or any predecessor in title, or any third
persons at any time occupying or present on any Real Property, in connection
with the handling, treatment, removal, storage, decontamination, clean-up,
transport or disposal of any Hazardous Materials at any time located or present
on, in, under or about any Real Property. The foregoing indemnity shall further
apply to any residual contamination on, in, under or about any Real Property, or
affecting any natural resources, and to any contamination of any Property or
natural resources arising in connection with the generation, use, handling,
storage, transport or disposal of any such Hazardous
-103-
<PAGE>
Materials, and irrespective of whether any of such activities were or will be
undertaken in accordance with applicable Laws, but the foregoing indemnity shall
not apply to Hazardous Materials on any Real Property, the presence of which is
caused by the Administrative Agent or the Lenders. Borrower hereby acknowledges
and agrees that, notwithstanding any other provision of this Agreement or any of
the other Loan Documents to the contrary, the obligations of Borrower under this
Section shall be unlimited corporate obligations of Borrower and shall not be
---
secured by any Lien on any Real Property. Any obligation or liability of
Borrower to any Indemnitee under this Section 11.22 shall survive the expiration
-----
or termination of this Agreement and the repayment of all Loans and the payment
and performance of all other Obligations owed to the Lenders.
11.23 Arbitration. Upon the demand of any party, any Dispute shall
-----------
be resolved by binding arbitration (except as set forth in (d) below) in
-
accordance with the terms of this Agreement. A "Dispute" shall mean any action,
dispute, claim or controversy of any kind, whether in contract or tort,
statutory or common law, legal or equitable, now existing or hereafter arising
under or in connection with, or in any way pertaining to, any of the Loan
Documents, or any past, present or future extensions of credit and other
activities, transactions or obligations of any kind related directly or
indirectly to any of the Loan Documents, including without limitation, any of
the foregoing arising in connection with the exercise of any self-help,
ancillary or other remedies pursuant to any of the Loan Documents. Any party
may by summary proceedings bring an action in court to compel arbitration of a
Dispute. Any party who fails or refuses to submit to arbitration following a
lawful demand by any other party shall bear all costs and expenses incurred by
such other party in compelling arbitration of any Dispute.
(a) Governing Rules. Arbitration proceedings shall be
---------------
administered by the American Arbitration Association ("AAA") or such other
administrator as the parties shall mutually agree upon in accordance with
the AAA Commercial Arbitration Rules. All Disputes submitted to
arbitration shall be resolved in accordance with the Federal Arbitration
Act (Title 9 of the United States Code), notwithstanding any conflicting
choice of law provision in any of the Loan Documents. The arbitration
shall be conducted at a location in Colorado selected by the AAA or other
administrator. If there is any inconsistency between the terms hereof and
any such rules, the terms and procedures set forth herein shall control.
All statutes of limitation applicable to
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<PAGE>
any Dispute shall apply to any arbitration proceeding. All discovery
activities shall be expressly limited to matters directly relevant to the
Dispute being arbitrated. Judgment upon any award rendered in an
arbitration may be entered in any court having jurisdiction; provided
however, that nothing contained herein shall be deemed to be a waiver by
any party that is a bank of the protections afforded to it under 12 U.S.C.
(S)91 or any similar applicable state law.
(b) No Waiver; Provisional Remedies, Self-Help and Foreclosure.
----------------------------------------------------------
No provision hereof shall limit the right of any party to exercise self-
help remedies such as setoff, foreclosure against or sale of any real or
personal property collateral or security, or to obtain provisional or
ancillary remedies, including without limitation injunctive relief,
sequestration, attachment, garnishment or the appointment of a receiver,
from a court of competent jurisdiction before, after or during the pendency
of any arbitration or other proceeding. The exercise of any such remedy
shall not waive the right of any party to compel arbitration or reference
hereunder.
(c) Arbitrator Qualifications and Powers; Awards. Arbitrators
--------------------------------------------
must be active members of the Colorado State Bar or retired judges of the
state or federal judiciary of Colorado, with expertise in the substantive
laws applicable to the subject matter of the Dispute. Arbitrators are
empowered to resolve Disputes by summary rulings in response to motions
filed prior to the final arbitration hearing. Arbitrators (i) shall
resolve all Disputes in accordance with the substantive law of the state of
Colorado, (ii) may grant any remedy or relief that a court of the state of
Colorado could order or grant within the scope hereof and such ancillary
relief as is necessary to make effective any award, and (iii) shall have
the power to award recovery of all costs and fees, to impose sanctions and
to take such other actions as they deem necessary to the same extent a
judge could pursuant to the Federal Rules of Civil Procedure, the Colorado
Rules of Civil Procedure or other applicable law. Any Dispute in which the
amount in controversy is $5,000,000 or less shall be decided by a single
arbitrator who shall not render an award of greater than $5,000,000
(including damages, costs, fees and expenses). By submission to a single
arbitrator, each party expressly waives any right or claim to recover more
than $5,000,000. Any Dispute in which the amount in controversy exceeds
$5,000,000 shall be decided by majority vote of a panel of three
arbitrators;
-105-
<PAGE>
provided however, that all three arbitrators must actively participate in
all hearings and deliberations.
(d) Judicial Review. Notwithstanding anything herein to the
---------------
contrary, in any arbitration in which the amount in controversy exceeds
$25,000,000, the arbitrators shall be required to make specific, written
findings of fact and conclusions of law. In such arbitrations (i) the
arbitrators shall not have the power to make any award which is not
supported by substantial evidence or which is based on legal error, (ii) an
award shall not be binding upon the parties unless the findings of fact are
supported by substantial evidence and the conclusions of law are not
erroneous under the substantive law of the state of Colorado, and (iii) the
parties shall have in addition to the grounds referred to in the Federal
Arbitration Act for vacating, modifying or correcting an award the right to
judicial review of (A) whether the findings of fact rendered by the
arbitrators are supported by substantial evidence, and (B) whether the
conclusions of law are erroneous under the substantive law of the state of
Colorado. Judgment confirming an award in such a proceeding may be entered
only if a court determines the award is supported by substantial evidence
and not based on legal error under the substantive law of the state of
Colorado.
(e) Miscellaneous. To the maximum extent practicable, the AAA,
-------------
the arbitrators and the parties shall take all action required to conclude
any arbitration proceeding within 180 days of the filing of the Dispute
with the AAA. No arbitrator or other party to an arbitration proceeding
may disclose the existence, content or results thereof, except for
disclosures of information by a party required in the ordinary course of
its business, by applicable law or regulation, or to the extent necessary
to exercise any judicial review rights set forth herein. If more than one
agreement for arbitration by or between the parties potentially applies to
a Dispute, the arbitration provision most directly related to the Loan
Documents or the subject matter of the Dispute shall control. This
arbitration provision shall survive termination, amendment or expiration of
any of the Loan Documents or any relationship between the parties.
11.24 Waiver of Right to Trial by Jury. EACH PARTY TO THIS AGREEMENT
--------------------------------
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION ARISING
-106-
<PAGE>
UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO
THE DEALINGS OF THE PARTY HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN
DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING
OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE.
-107-
<PAGE>
11.25 Purported Oral Amendments. BORROWER EXPRESSLY ACKNOWLEDGES
-------------------------
THAT THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS MAY ONLY BE AMENDED OR
MODIFIED, OR THE PROVISIONS HEREOF OR THEREOF WAIVED OR SUPPLEMENTED, BY AN
INSTRUMENT IN WRITING THAT COMPLIES WITH SECTION 11.2. BORROWER AGREES THAT IT
----
WILL NOT RELY ON ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR ORAL OR
WRITTEN STATEMENTS BY ANY REPRESENTATIVE OF THE ADMINISTRATIVE AGENT OR ANY
LENDER THAT DOES NOT COMPLY WITH SECTION 11.2 TO EFFECT AN AMENDMENT,
----
MODIFICATION, WAIVER OR SUPPLEMENT TO THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
WILD OATS MARKETS, INC.
By: ______________________________________
_______________________________
[Printed Name and Title]
Address for notices:
Wild Oats Markets, Inc.
3375 Mitchell Lane
Boulder, Colorado 80301-2244
Attn: Mary Beth Lewis, Chief Financial Officer
Telecopier: (303) 440-7316
Telephone: (303) 440-5220
-108-
<PAGE>
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Administrative Agent and a
Lender
By: __________________________________
Tracey Hanson
Vice President
Address for notices as a Lender:
Wells Fargo Bank, National Association
Commercial Lending Office
633 Seventeenth Street
Denver, Colorado 80270
Attn: Tracey Hanson
Telecopier: (303) 293-5163
Telephone: (303) 293-5131
Address for notices to Administrative Agent for
borrowings and payments:
Wells Fargo Bank, N.A., as Agent
Commercial Bank Loan Center
Agency Department, 2840
201 Third Street, 8th Floor
San Francisco, California 94103
Attn: Manager
Telecopier: (415) 512-7059
Telephone: (415) 477-5413
-109-
<PAGE>
THE FIRST NATIONAL BANK OF CHICAGO, as a
Lender
By: ____________________________________
Paul Rigby
Managing Director
Address:
The First National Bank of Chicago
One First National Bank Plaza, 14th Floor
Mail Suite 0086
Chicago, Illinois 60670
Attn: Paul Rigby
Telecopier: (312) 732-1117
Telephone: (312) 732-6132
-110-
<PAGE>
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK, B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH, as a Lender
By: _________________________________
_________________________________
[Printed Name and Title]
By: _________________________________
_________________________________
[Printed Name and Title]
Address:
Rabobank Nederland
One Galleria Tower
13355 Noel Road, Suite 1000
Dallas, Texas 75240
Attn: Doug Pogge
Telecopier: (972) 419-5269
Telephone: (972) 419-6315
Address for funding notices:
Rabobank Nederland, New York Branch
c/o Rabo Support Services
10 Exchange Place, 16th Floor
Jersey City, New Jersey 07302
Attn: Corporate Services
Telecopier: (201) 499-5328
Telephone: (201) 499-5200
-111-
<PAGE>
HARRIS TRUST & SAVINGS BANK, as a Lender
By: _____________________________
_______________________________
[Printed Name and Title]
Address:
Harris Trust & Savings Bank
111 West Monroe Street
10th Floor Center
Chicago, Illinois 60603
Attn: James Colley
Telecopier: (312) 293-5041
Telephone: (312) 461-6876
-112-
<PAGE>
EXHIBIT 21.1
WILD OATS MARKETS, INC.
LIST OF SUBSIDIARIES
Alfalfa's Canada, Inc.
Wild Oats Markets Canada, Inc.
43
<PAGE>
EXHIBIT 23.1
Consent of Independent Accountants
We hereby consent to the incorporation by reference in the Prospectuses
constituting part of the Registration Statements on Form S-3 (No. 333-52747 and
No. 333-62175) and in the Registration Statements on Form S-9 (No. 3333-20539
and No. 333-66347) of Wild Oats Markets, Inc. of our report dated January 29,
1999 appearing on page 37 of this Form 10-K.
PricewaterhouseCoopers LLP
March 18, 1999
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED BALANCE SHEET AS OF JANUARY 2, 1999 AND THE CONSOLIDATED STATEMENTS
OF OPERATIONS INCLUDED IN THE ANNUAL REPORT ON FORM 10-K FOR THE YEAR ENDED
JANUARY 2, 1999 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
CONSOLIDATED FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> JAN-02-1999
<PERIOD-START> DEC-28-1997
<PERIOD-END> JAN-02-1999
<CASH> 11,255
<SECURITIES> 0
<RECEIVABLES> 1,921
<ALLOWANCES> 159
<INVENTORY> 28,464
<CURRENT-ASSETS> 44,249
<PP&E> 125,991
<DEPRECIATION> 28,113
<TOTAL-ASSETS> 198,840
<CURRENT-LIABILITIES> 44,604
<BONDS> 0
0
0
<COMMON> 13
<OTHER-SE> 150,931
<TOTAL-LIABILITY-AND-EQUITY> 198,840
<SALES> 398,857
<TOTAL-REVENUES> 398,857
<CGS> 274,780
<TOTAL-COSTS> 274,780
<OTHER-EXPENSES> 106,312
<LOSS-PROVISION> 55
<INTEREST-EXPENSE> 287
<INCOME-PRETAX> 19,373
<INCOME-TAX> 7,725
<INCOME-CONTINUING> 11,648
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 11,648
<EPS-PRIMARY> 0.90
<EPS-DILUTED> 0.87
</TABLE>
