SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
______________________________
FORM 10-K
(Mark One)
( X ) ANNUAL REPORT PURSUANT TO SECTION 13 or 15(d) OF THE
SECURITIES ACT OF 1934
For The Fiscal Year Ended December 31, 1999
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the Transition Period From ___________ to ____________
Commission File Number 0-22462
GIBRALTAR STEEL CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware 16-1445150
(State or other jurisdiction of incorporation organization (I.R.S. Employer
Identification No.)
3556 Lake Shore Road, P.O. Box 2028, Buffalo, New York 14219-0228
(address of principal executive offices) (Zip Code)
(716) 826-6500
Registrant's telephone number, including area code
Securities registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which registered
Common Stock, $.01 par value NASDAQ National Market System
Securities registered pursuant to Section 12(g) of the Act:
NONE
Indicate by check mark whether the Registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months (or
for such shorter period that the Registrant was required to file
such reports), and (2) has been subject to such filing
requirements for the past 90 days. YES X NO
Indicate by check mark if disclosure of delinquent filers pursuant
to Item 405 of Regulation S-K is not contained herein, and will
not be contained, to the best of the Registrant's knowledge, in
definitive proxy or information statements incorporated by
reference in Part III of the Form 10-K or any amendment to this
Form 10-K. ( )
As of December 31, 1999, the aggregate market value of the voting
stock held by nonaffiliates of the Registrant amounted to
$148,108,000.
As of December 31, 1999, the number of common shares outstanding
was: 12,577,464.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the Registrant's definitive Proxy Statement for the
Annual Meeting of Shareholders to be held May 23, 2000, are incorporated by
reference into Part III of this report.
Exhibit Index is on Page 37
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PART I
Item 1. Description of Business
General
The Company is a processor of a broad array of high value-
added, technically sophisticated steel and other metal
products. The Company utilizes any one or a combination
of several different processes at each of its operating
facilities to add substantial margin and value to raw
material acquired from primary steel and other metal
producers. Underlying each of these processes is a common
set of steel and metal processing core competencies.
These core competencies are the foundation upon which all
the Company's operations and customer offerings are based.
Industry Overview
Steel and metal processors occupy a market niche that
exists between the primary steel and metal producers and
end-users and others. Primary steel and metal producers
typically focus on the sale of standard size and tolerance
steel and other metals to large volume purchasers,
including steel and metal processors. At the same time,
end-users require steel with closer tolerances and with
shorter lead times than the primary steel and metal
producers can provide efficiently.
Metal Processes, Products and Services
The Company produces and delivers a variety of products
and services on a just-in-time basis for industrial
manufacturers, fabricators and other end-users in the
automotive, automotive supply, building and construction,
machinery, and steel industries.
The following table sets forth certain information
regarding sales of products and services as a percentage
of net sales for the past three years:
Year ended December 31,
Products and Services 1997 1998 1999
Cold-rolled strip steel 35% 30% 29%
Building and construction products 20% 32% 35%
Precision metal products 36% 31% 26%
Heat treating and other services 9% 7% 10%
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The following steel and metal products, processes and
services are provided by the Company:
Cold-Rolled Strip Steel
The Company produces a broad range of fully processed cold-
rolled strip steel products. The Company buys wide, open
tolerance sheet steel in coils from primary steel producers
and processes it to specific customer orders by performing
such computer-aided processes as cold reduction, annealing,
temper rolling, edge rolling and slitting. Cold reduction
is the rolling of steel to a specified thickness, tolerance
and finish. Annealing is a thermal process which changes
hardness and certain metallurgical characteristics of steel.
Temper rolling is the rolling of steel to a specific
hardness. Edge rolling involves conditioning edges of
processed steel into square, fully round or partially round
shapes. Slitting is the cutting of steel to specified
widths. Depending on customer specifications, one or more
of these processes are utilized to produce steel strip of a
precise grade, temper, tolerance and finish.
The Company operates 10 rolling mills at its facilities in
Cleveland, Ohio, Chattanooga, Tennessee and Buffalo, New
York, all of which are QS9000 certified, and is capable of
rolling widths of up to 50 inches. The Company has the
capability to process coils up to a maximum of 72 inch
outside diameter. The Company's rolling mills include
automatic gauge control systems with hydraulic screwdowns
allowing for microsecond adjustments during processing. The
Company operates a 56 inch reversing mill which the Company
believes is the widest of its type in the industry.
The Company's computerized mills produce products meeting
the most stringent statistical quality control standards,
enabling it to satisfy a growing industry demand for a range
of steel from thicker to thinner, low carbons to alloy
grades, all with precision gauge tolerances as close as +/-
.0002 inches.
The Company's rolling facilities are further complemented by 15
high convection annealing furnaces, which shorten annealing
times over conventional annealers. The Company's newest
furnaces incorporate the use of a hydrogen atmosphere for the
production of cleaner and more uniform steel. As a result of
its annealing capabilities, the Company is able to produce cold-
rolled strip steel with improved consistency in terms of
hardness, molecular grain structure and surface.
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The Company can produce certain of its strip steel products
on oscillated coils which wind the steel strip in a manner
similar to the way thread is wound on a spool. Oscillating
the steel enables the Company to put at least six times
greater volume of finished product on a coil than standard
ribbon winding, allowing customers to achieve longer
production runs by reducing the number of equipment shut-
downs to change coils. Customers are thus able to increase
productivity, reduce downtime, improve yield and lengthen die
life.
Building and Construction Products
The Company processes steel and other metal to manufacture
a wide array of products for the building and construction
industry. Building and construction industry products are
manufactured primarily from galvanized steel, as well as
from aluminum, copper and other metals. Building and
construction products manufactured include metal trims,
utility sheds, steel lumber connectors, metal roofing,
drywall products, gutters and down spouts, ventilation
products and storm panel systems for residential and
commercial properties.
The Company's existing building and construction products
operations - comprised of Southeastern Metals
Manufacturing Company, Inc. (SEMCO), with facilities
located in Florida, Tennessee, Texas and Mississippi, The
Solar Group (Solar), with three facilities located in
Mississippi, Appleton Supply Co., Inc. (Appleton), with
facilities located in Wisconsin and Missouri, and United
Steel Products Company (USP), with facilities located in
Minnesota, California, North Carolina and New Jersey -
expanded during 1999 with the acquisition of two
additional building and construction products companies.
K & W Metal Fabricators, Inc., d/b/a Weather Guard
Building Products (Weather Guard), acquired in July 1999,
manufactures and distributes a full line of metals
building products for industrial, commercial and
residential applications. With operations based in
Colorado, Weather Guard strengthens the Company's business
in the Western United States and provides a strong
presence in the fast-growing Rocky Mountain region.
Hughes Manufacturing, Inc. (Hughes), acquired in December
1999, manufactures a broad line of fully engineered, code-
approved steel lumber connectors and other metal hardware
products at its Florida facility which compliment those
produced by SEMCO. Hughes' lumber connector products also
compliment those produced at USP.
Precision Metal Products
The Company's precision metal products are comprised primarily of
higher value-added flat-rolled sheet steel, as well as steel
strapping and other products.
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Precision Metal Processing. The Company operates precision
metals facilities in New York and Tennessee which primarily
process flat-rolled sheet steel. In addition to slitting and
cutting to length, these precision metals facilities can produce
higher value-added products which are held to close tolerances
and tight specifications through cold-rolling, annealing,
blanking, oscillating and edge rolling.
The Company also operates precision metals facilities in
Illinois and Alabama which process galvanized, Galvalume
and prepainted steel and can slit and cut to length
material based upon customer specifications.
Steel Strapping. Steel strapping is banding and packaging
material that is used to close and reinforce shipping units
such as bales, boxes, cartons, coils, crates and skids. The
Company manufactures high tensile strapping that is subject to
strength requirements imposed by the American Society for
Testing and Materials for packaging of different products for
common carrier transport. This high tensile steel strapping is
essential to producers of large, heavy products such as steel,
paper and lumber where reliability of the packaging material is
critical to the safe transport of the product.
The Company's QS9000 certified strapping facility manufactures
high tensile steel strapping by slitting, oscillating, heat
treating, painting and packaging cold-rolled coils.
Steel strapping is cold-rolled to precise gauge on one of the
Company's rolling mills, which incorporates hydraulic screw
downs and automatic gauge controls with statistical charting.
This process ensures strapping product of the most uniform
gauge available and produces the maximum amount of strapping
per pound of steel. All products are tested by on-site
laboratory personnel for width, thickness and other physical
and metallurgical properties.
To meet the differing needs of its customers, the Company
offers its strapping products in various thicknesses, widths
and coil sizes. The Company also manufactures custom color and
printed strapping. In addition, the Company offers related
strapping products, such as seals and tools, and is able to
manufacture tensional strapping for lighter duty applications.
Other Products. The Company's Solar operation produces a
complete line of mailboxes manufactured primarily with
galvanized steel.
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Heat Treating and Other Services
Metallurgical Heat Treating Services. The Company provides a
wide range of metallurgical heat treating services in which
customer-owned parts are exposed to precise temperatures,
atmospheres and quenchants and other conditions to improve
their mechanical properties, durability and wear resistance.
These services include case-hardening, neutral-hardening and
through-hardening processes for customers in a wide variety of
industries. Using methods such as annealing, normalizing,
vacuum hardening, carbonizing, nitriding and brazing, as well
as a host of other services, these heat treating processes can
harden, soften or otherwise impart desired properties on parts
made of steel, copper and various alloys and other metals.
During 1999, the Company acquired three heat treating
companies - Southeastern Heat Treating, Inc. in April
1999, Hi-Temp Incorporated (Hi-Temp) in August 1999 and
Brazing Concepts Company (Brazing Concepts) in November
1999 - and now operates fifteen heat treating facilities
in North Carolina, South Carolina, Tennessee, Georgia,
Alabama, Michigan, Indiana and Illinois. The Company
maintains a metallurgical laboratory at each facility with
trained metallurgists providing a range of testing
capabilities to add value to treated parts and enhance
quality control. Consistent quality control is maintained
by application of a statistical process control system and
registered to QS/ISO 9002. Additionally, the Company
maintains a fleet of trucks and trailers to provide rapid
turnaround time for its customers.
Due to time and costs associated with transporting
materials and customers' need for just-in-time delivery of
heat treated products, the commercial heat treating
industry has developed as a regional industry concentrated
in major industrial areas of the country. In addition,
the commercial heat treating industry has realized
significant growth in recent years as many companies
involved in the manufacture of metal components outsource
their heat treating requirements. The Company believes
that its heat treating facilities are strategically
located to meet the needs of customers from a
geographically diverse base of operations and to
capitalize on the growing trend in outsourcing of heat
treating operations.
Materials Management Services. The Company operates two
materials management facilities that link primary steel
producers and end-user manufacturers by integrating the
inventory purchasing, receiving, inspection, billing, storage
and shipping functions and producing true just-in-time delivery
of materials. These facilities receive shipments of steel by
rail and truck from steel producers, which retain ownership of
the steel until it is delivered to the end-user manufacturer.
The Company inspects the steel and stores it in a climate-
controlled environment through the use of a specialized stacker
crane and racking system. When an order is placed, the Company
often delivers the steel to the end-user manufacturer within
one hour using Company-owned trucks that have been custom
designed to facilitate the loading and unloading process.
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Steel Pickling Joint Venture. The Company is a minority
partner with a 31% interest in two steel pickling operations in
Ohio. After the hot-rolling process, the surface of sheet
steel is left with a residue known as scale, which must be
removed prior to further processing by a cleaning process known
as pickling. This joint venture pickles steel on a toll basis,
receiving fees for its pickling services without acquiring
ownership of the steel.
Quality Control
The Company carefully selects its raw material vendors and uses
computerized inspection and analysis to assure that the steel
and other metals which it processes will be able to meet the
most critical specifications of its customers. The Company
uses documented procedures during the production process, along
with statistical process control computers linked directly to
processing equipment, to monitor that such specifications are
met. Physical, chemical and metallographic analyses are
performed during the production process to verify that
mechanical and dimensional properties, cleanliness, surface
characteristics and chemical content are within specification.
Suppliers and Raw Materials
Steel and metal processing companies are required to maintain
substantial inventories of raw materials in order to
accommodate the short lead times and just-in-time delivery
requirements of their customers. Accordingly, the Company
generally maintains its inventory of raw materials at levels
that it believes are sufficient to satisfy the anticipated
needs of the customers based upon historic buying practices and
market conditions. The primary raw material processed by the
Company is flat rolled steel purchased at regular intervals
primarily from approximately 20 major North American suppliers
and a limited number of foreign steel companies. The Company
has no long-term commitments with any of its suppliers.
Technical Services
The Company employs a staff of engineers and other technical
personnel and maintains fully-equipped, modern laboratories to
support its operations. These laboratories enable the Company to
verify, analyze and document the
physical, chemical, metallurgical and mechanical properties of
its raw materials and products. Technical service personnel also
work in conjunction with the sales force to determine the types
of steel required for the particular needs of the Company's
customers.
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Sales and Marketing
The Company's products and services are sold primarily by
Company sales personnel and outside sales representatives
located throughout the United States and Mexico.
Customers and Distribution
The Company has approximately 9,000 customers located
throughout the United States, Canada and Mexico principally in
the automotive, automotive supply, appliance, building and
construction, machinery and steel industries. Major customers
include automobile manufacturers and suppliers, building and
construction product distributors, and commercial and
residential contractors. No customer of the Company
represented 10% or more of the Company's net sales for 1997,
1998 or 1999.
The Company manufactures its products exclusively to customer
order rather than for inventory, except for building and
construction products. Although the Company negotiates annual
sales orders with a majority of its customers, these orders are
subject to customer confirmation as to product amounts and
delivery dates.
Competition
The steel processing market is highly competitive. The Company
competes with a small number of other steel processors, some of
which also focus on fully processed, high value-added steel
products. The Company competes on the basis of the precision
and range of achievable tolerances, quality, price and the
ability to meet delivery schedules dictated by customers.
The Company also competes with a small number of other steel
strapping manufacturers on the basis of quality, price,
products, range of sizes offered and the ability to meet
delivery schedules dictated by customers.
The Company competes with numerous suppliers of building and
construction products in its market based on the broad range of
products offered, quality, price and delivery.
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The Company competes with a small number of suppliers of heat
treating services in its market areas on the basis of processes
offered, quality, price, and delivery.
Employees
At December 31, 1999, the Company employed approximately 3,100
people, of which approximately 300 are represented by
collective bargaining agreements.
Backlog
Because of the nature of the Company's products and the short
lead time order cycle, backlog is not a significant factor in
the Company's business. The Company believes that
substantially all of its firm orders existing on December 31,
1999 will be shipped prior to the end of 2000.
Governmental Regulation
The Company's processing centers and manufacturing facilities
are subject to many federal, state and local requirements
relating to the protection of the environment. The Company
believes that it is in material compliance with all
environmental laws, does not anticipate any material
expenditures in order to meet environmental
requirements and does not believe that future compliance with
such laws and regulations will have a material adverse effect
on its results of operations or financial condition.
The Company's operations are also governed by many other laws
and regulations. The Company believes that it is in material
compliance with these laws and regulations and does not believe
that future compliance with such laws and regulations will have
a material adverse effect on its results of operations or
financial condition.
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Item 2. Description of Properties
The Company maintains its corporate headquarters in Buffalo,
New York and conducts its business operations in facilities
located throughout the United States.
The Company believes that its primary existing facilities,
listed below, and their equipment are effectively utilized,
well maintained, in good condition and will be able to
accommodate its capacity needs through 2000.
Square Owned
Location Utilization Footage or Leased
Buffalo, New York Headquarters 23,000 Leased
Cheektowaga, New York Cold-rolled strip
steel processing and
strapping products 148,000 Owned
Tonawanda, New York Cold-rolled strip steel
and precision metals
processing 128,000 Owned
Cleveland, Ohio Cold-rolled strip steel
processing 259,000 Owned
Dearborn, Michigan Strapping tool products 3,000 Owned
Lackawanna, New York Materials management
facility 65,000 Leased
Woodhaven, Michigan Materials management
facility 100,000 Owned
Franklin Park, Illinois Precision metals
processing 99,000 Owned
Birmingham, Alabama Precision metals
processing 97,900 Leased
Chattanooga, Tennessee Precision metals
processing 65,000 Owned
Brownsville, Texas Distribution warehouse 15,000 Leased
Troy, Michigan Sales office 800 Leased
Fountain Inn,
S. Carolina Heat treating 77,400 Owned
Reidsville,
N. Carolina Heat treating 53,500 Owned
Arden, N. Carolina Heat treating 20,400 Leased
Charlotte, N. Carolina Administrative office 3,400 Leased
Morristown, Tennessee Heat treating 24,200 Owned
Conyers, Georgia Heat treating 18,700 Leased
Athens, Alabama Heat treating 20,000 Owned
Coldwater, Michigan Administrative office
and heat treating 89,000 Owned
Benton Harbor, Michigan Administrative office
and heat treating 56,700 Owned
Benton Harbor, Michigan Warehouse 25,000 Leased
Greensburg, Indiana Heat treating 30,000 Leased
South Bend, Indiana Heat treating 33,900 Owned
Rockford, Illinois Heat treating 15,600 Owned
Rockford, Illinois Heat treating 54,400 Owned
Northlake, Illinois Administrative office
and heat treating 200,000 Leased
Jacksonville, Florida Administrative office
and construction products
manufacturing 261,400 Leased
Miami, Florida Construction products
manufacturing 77,000 Leased
Tampa, Florida Construction products
manufacturing 50,000 Leased
Nashville, Tennessee Construction products
manufacturing 52,500 Leased
San Antonio, Texas Construction products
manufacturing 70,000 Leased
Houston, Texas Construction products
manufacturing 48,200 Leased
Vidalia, Georgia Warehouse 34,000 Leased
Taylorsville,
Mississippi Construction products
manufacturing 53,600 Owned
Taylorsville,
Mississippi Construction products
manufacturing 238,700 Owned
Port Gibson, Mississippi Warehouse 40,000 Leased
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Enterprise, Mississippi Construction products
manufacturing 194,300 Owned
Appleton, Wisconsin Construction products
manufacturing 100,300 Owned
Appleton, Wisconsin Construction products
manufacturing 42,600 Owned
Joplin, Missouri Construction products
manufacturing 45,400 Owned
Montgomery, Minnesota Administrative office
and construction
products manufacturing 115,600 Owned
Montgomery, Minnesota Construction products
manufacturing 22,000 Leased
LeCenter, Minnesota Construction products
manufacturing 15,000 Leased
Livermore, California Construction products
manufacturing 103,500 Leased
Rancho Cucamonga,
California Warehouse 20,600 Leased
North Wilkesboro,
N. Carolina Construction products
manufacturing 23,500 Leased
Hainesport, New Jersey Warehouse 10,800 Leased
Denver, Colorado Administrative office and
construction products
manufacturing 90,000 Leased
Largo, Florida Administrative office and
construction products
manufacturing 100,000 Owned
Item 3. Legal Proceedings
From time to time, the Company is named a defendant in legal
actions arising out of the normal course of business. The
Company is not a party to any pending legal proceeding the
resolution of which the management of the Company believes will
have a material adverse effect on the Company's results of
operations or financial condition or to any other pending legal
proceedings other than ordinary, routine litigation incidental
to its business. The Company maintains liability insurance
against risks arising out of the normal course of business.
Item 4. Submission of Matters to a Vote of Security Holders
Not applicable.
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PART II
Item 5. Market for Common Equity and Related Stockholder
Matters
As of December 31, 1999, there were 137 shareholders of record
of the Company's common stock. However, the Company believes
that it has a significantly higher number of shareholders
because of the number of shares that are held by nominees.
The Company's common stock is traded in the over-the-counter
market and quoted on the National Association of Securities
Dealers Automated Quotation System - National Market System
("Nasdaq"). Its trading symbol is "ROCK". The following table
sets forth the high and low sales prices per share for the
Company's common stock for each quarter of 1999 and 1998:
1999 1998
High Low High Low
Fourth Quarter $ 26 $ 21 3/4 $ 22 7/8 $ 15
Third Quarter 25 3/4 20 1/8 23 14 3/8
Second Quarter 25 1/4 19 3/4 25 1/4 20 1/2
First Quarter 23 1/2 17 25 3/4 18 1/2
The Company declared dividends of $.05 per share in the first
quarter of 1999 and $.025 per share in each of the second,
third and fourth quarters of 1999. No dividends were declared
in 1998.
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Item 6. Selected Financial Data
(in thousands, except per share data)
Year Ended December 31,
1999 1998 1997 1996 1995
Net Sales $ 621,918 $ 557,944 $ 449,700 $ 342,974 $ 282,833
Income from
operations 55,469 44,455 32,603 30,617 20,368
Interest expense 13,439 11,389 5,115 3,827 3,984
Income before income
taxes 42,030 33,066 27,488 26,790 16,384
Income taxes 17,022 13,226 11,072 10,815 6,662
Net income 25,008 19,840 16,416 15,975 9,722
Net income per
share-Basic $ 1.99 $ 1.59 $ 1.33 $ 1.42 $ .96
Weighted average shares
outstanding-Basic 12,540 12,456 12,357 11,261 10,164
Net income per
share-Diluted $ 1.95 $ 1.57 $ 1.30 $ 1.39 $ .95
Weighted average shares
outstanding-Diluted 12,806 12,651 12,591 11,464 10,213
Cash dividends per
common share $ .125 $ - $ - $ - $ -
Current assets $ 182,591 $ 175,834 $ 130,746 $ 109,526 $ 86,995
Current liabilities 69,668 51,598 43,101 40,853 29,480
Total assets 522,080 438,435 281,336 222,507 167,423
Total debt 236,621 200,746 83,024 49,841 59,054
Shareholders' equity 185,459 160,308 140,044 121,744 70,244
Capital expenditures $ 21,999 $ 22,062 $ 21,784 $ 15,477 $ 14,504
Depreciation 14,613 11,221 7,475 5,581 4,196
Amortization 2,839 2,112 1,003 665 342
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Item 7. Management's Discussion and Analysis of Financial Condition
and Results of Operations
Results of Operations
Year Ended 1999 Compared to Year Ended 1998
Net sales increased $64.0 million, or 11.5%, to a record
$621.9 million in 1999 from $557.9 million in 1998. This
increase primarily resulted from including the net sales
of Southeastern Heat Treating (acquired April 1, 1999),
Weather Guard (acquired July 1, 1999), Hi-Temp (acquired
August 1, 1999), Brazing Concepts (acquired November 1,
1999) and Hughes (acquired December 1, 1999) (the 1999
acquisitions) from their respective acquisition dates, and
a full year of net sales of Solar (acquired March 1,
1998), Appleton (acquired April 1, 1998), USP (acquired
June 1, 1998) and Harbor (acquired October 1, 1998) (the
1998 acquisitions), together with sales growth at existing
operations.
Cost of sales increased $37.5 million, or 8.2%, to $493.9
million in 1999 from $456.4 million in 1998. Cost of
sales as a percentage of net sales decreased to 79.4% in
1999 from 81.8% in 1998. This improvement was due to the
1999 and 1998 acquisitions, which have historically
generated higher margins than the Company's existing
operations, and due to lower raw material costs at
existing operations.
Selling, general and administrative expenses increased
$15.5 million, or 27.1%, to $72.5 million in 1999 from
$57.0 in 1998. Selling, general and administrative
expenses as a percentage of net sales increased to 11.7%
in 1999 from 10.2% in 1998. This increase was due to
higher costs as a percentage of net sales attributable to
the 1999 and 1998 acquisitions, and due to performance
based compensation linked to the Company's sales and
profitability.
Interest expense increased by $2.0 million from 1998 to
1999 primarily due to higher borrowings in 1999 as a
result of the Company's current year acquisitions and
capital expenditures and due to a higher effective
interest rate in 1999 than in 1998.
As a result of the above, income before taxes increased
$9.0 million, or 27.1%, to a record $42.0 million in 1999
from $33.1 million in 1998.
Income taxes approximated $17.0 million in 1999, based on
a 40.5% effective rate compared with a 40.0% effective
rate in 1998.
Year Ended 1998 Compared to Year Ended 1997
Net sales increased $108.2 million, or 24%, to $557.9
million in 1998 from $449.7 million in 1997. This
increase primarily resulted from including the net sales
of Solar (acquired March 1, 1998), Appleton (acquired
April 1, 1998), USP (acquired June 1, 1998) and Harbor
(acquired October 1, 1998) (the 1998 acquisitions) from
their respective acquisition dates with the net sales of
the Company's existing operations, and from sales growth
at existing operations.
Cost of sales increased $80.9 million, or 22%, to $456.4
million in 1998 from $375.5 million in 1997. Cost of
sales as a percentage of net sales decreased to 81.8% in
1998 from 83.5% in 1997. This improvement was due to the
1998 acquisitions, which have historically generated
higher margins than the Company's existing operations, and
due to lower raw material costs at existing operations.
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Selling, general and administrative expenses increased
$15.5 million, or 37%, to $57.0 million in 1998 from $41.6
million in 1997. Selling, general and administrative
expenses as a percentage of net sales increased to 10.2%
in 1998 from 9.2% in 1997. This increase was primarily
due to higher costs as a percentage of net sales due to
acquisitions and performance based compensation linked to
the Company's sales and profitability.
Interest expense increased by $6.3 million from 1997 to
1998 primarily due to higher average borrowings during
1998 as a result of current year acquisitions and capital
expenditures, partially offset by a decrease in interest
rates in the fourth quarter of 1998.
As a result of the above, income before taxes increased by
$5.6 million, or 20%, to $33.1 million in 1998 from $27.5
million in 1997.
Income taxes approximated $13.2 million in 1998, based on
a 40.0% effective rate compared with a 40.3% effective
rate in 1997.
Liquidity and Capital Resources
During 1999, the Company's working capital decreased to
$112.9 million due to an increase in accounts payable to
support higher sales levels and an increase in accrued
income taxes. Long-term debt increased by $35.9 million
to $235.3 million and to 56% of total capitalization at
December 31, 1999. Additionally, shareholders' equity
increased by 16% to $185.5 million.
The Company's principal capital requirements are to fund
its operations, including working capital requirements,
the purchase and funding of improvements to its property
and equipment, and to fund acquisitions.
The Company's primary sources of liquidity are from cash
provided by operating activities and the Company's
revolving credit facility. Net cash provided by
operations of $60.7 million resulted primarily from net
income of $25.0 million, depreciation and amortization of
$17.5 million, a decrease in inventory of $6.9 million,
exclusive of acquisitions, and an increase in accounts
payable and accrued expenses of $10.2 million.
During 1999, the Company amended its revolving credit
agreement with its bank group to increase the capacity of
its revolver to $280 million. Borrowings thereunder are
secured with its accounts receivable, inventories and
property and equipment. At December 31, 1999, the Company
had interest rate swap agreements outstanding which
effectively converted $75 million of borrowings under the
revolving credit agreement to fixed rates ranging from
6.37% to 7.08% and which terminate at different dates
beginning in November 2000. The Company accounts for
interest rate swap agreements on an accrual basis.
Additional borrowings under the revolving credit facility
carry interest at LIBOR plus a fixed rate. The weighted
average interest rate of these borrowings was 7.07% at
December 31, 1999.
Net cash provided by operations of $60.7 million combined
with net proceeds from long-term debt of $26.9 million
were primarily used for the acquisition of Southeastern
Heat Treating, Weather Guard, Hi-Temp, Brazing Concepts
and Hughes, and for capital expenditures.
15
<PAGE>
The Company believes that availability under its credit
facility, together with funds generated from operations,
will be more than sufficient to provide the Company with
the liquidity and capital resources necessary to fund its
anticipated working capital requirements, acquisitions and
capital expenditure commitments for the next twelve
months.
The Company believes that environmental issues will not
require the expenditure of material amounts for
environmental compliance in the future.
Impact of Year 2000
The Year 2000 issue concerns the ability of computer
hardware and software to distinguish between the year
1900 and the year 2000. An inability to make this
distinction could result in computer application failure.
During 1999, the Company completed a detailed assessment
of all its information technology and non-information
technology hardware and software with regard to the Year
2000 issue, with special emphasis on mission critical
systems. Information and non-information technology
hardware and software were inventoried and those not Year
2000 ready were identified, remediated (i.e., corrected
or replaced) and tested to ensure that they would, in
fact, operate as desired according to Year 2000
requirements. The Company expensed approximately
$500,000 during 1999 in connection with remediating its
systems.
As a result of its Year 2000 readiness efforts, the
Company's mission critical information technology and non-
information technology systems successfully distinguished
between the year 1900 and the year 2000 on January 1,
2000, without any mission critical application failure.
However, the Company will continue to monitor its mission
critical computer applications throughout the year 2000
to ensure that any latent Year 2000 matters that may
arise are addressed promptly.
Recent Accounting Pronouncement
In June 1998, the Financial Accounting Standards Board
issued Statement of Financial Accounting Standards No.
133 Accounting for Derivative Instruments and Hedging
Activities (FAS No. 133) which requires recognition of
the fair value of derivatives in the statement of
financial position, with changes in the fair value
recognized either in earnings or as a component of other
comprehensive income dependent upon the hedging nature of
the derivative. Implementation of FAS No. 133 is
required for fiscal 2001. FAS No. 133 will not have a
material impact on the Company's earnings or other
comprehensive income.
Safe Harbor Statement
The Company wishes to take advantage of the Safe Harbor
provisions included in the Private Securities Litigation
Reform Act of 1995 (the "Act"). Statements by the
Company, other than historical information, constitute
"forward looking statements" within the meaning of the Act
and may be subject to a number of risk factors. Factors
that could affect these statements include, but are not
limited to, the following: the impact of changing steel
prices on the Company's results of operations; changing
demand for the company's products and services; the impact
of the Year 2000 matter; and changes in interest or tax
rates.
16
<PAGE>
Company Responsibility For Financial Statements
The accompanying consolidated financial statements of
Gibraltar Steel Corporation have been prepared by
management, which is responsible for their integrity and
objectivity. The statements have been prepared in
conformity with generally accepted accounting principles
and include amounts based on management's best estimates
and judgments. Financial information elsewhere in this
Annual Report is consistent with that in the consolidated
financial statements.
The Company has established and maintains a system of
internal control designed to provide reasonable assurance
that assets are safeguarded and that the financial records
reflect the authorized transactions of the Company.
The financial statements have been audited by
PricewaterhouseCoopers LLP, independent accountants. As
part of their audit of the Company's 1999 financial
statements, PricewaterhouseCoopers LLP considered the
Company's system of internal control to the extent they
deemed necessary to determine the nature, timing and
extent of their audit tests.
The Board of Directors pursues its responsibility for the
Company's financial reporting through its Audit Committee,
which is composed entirely of outside directors. The
independent accountants have direct access to the Audit
Committee, with and without the presence of management
representatives, to discuss the results of their audit
work and their comments on the adequacy of internal
accounting controls and the quality of financial
reporting.
Brian J. Lipke
Chairman of the Board
and Chief Executive Officer
Walter T. Erazmus
President
John E. Flint
Vice President
and Chief Financial Officer
17
<PAGE>
Item 8. Financial Statements and Supplementary Data
Page
Number
Index to Financial Statements:
Financial Statements:
Report of Independent Accountants 19
Consolidated Balance Sheet at December 31,
1999 and 1998 20
Consolidated Statement of Income for the
three years ended December 31, 1999 21
Consolidated Statement of Cash Flows for
the three years ended December 31, 1999 22
Consolidated Statement of Shareholders'
Equity for the three years ended
December 31, 1999 23
Notes to Consolidated Financial Statements 24
Supplementary Data:
Quarterly Unaudited Financial Data 33
18
<PAGE>
Report of Independent Accountants
To the Board of Directors and
Shareholders of Gibraltar Steel Corporation
In our opinion, the consolidated financial statements
listed in the accompanying index present fairly, in
all material respects, the financial position of
Gibraltar Steel Corporation and its subsidiaries at
December 31, 1999 and 1998, and the results of their
operations and their cash flows for each of the three
years in the period ended December 31, 1999, in
conformity with accounting principles generally
accepted in the United States. 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 auditing standards generally
accepted in the United States, which require that we
plan and perform the audit to obtain reasonable
assurance about whether the financial statements are
free of material misstatement. An audit includes
examining, on a test basis, evidence supporting the
amounts and disclosures in the financial statements,
assessing the accounting principles used and
significant estimates made by management, and
evaluating the overall financial statement
presentation. We believe that our audits provide a
reasonable basis for the opinion expressed above.
PricewaterhouseCoopers LLP
Buffalo, New York
January 21, 2000
19
<PAGE>
GIBRALTAR STEEL CORPORATION
CONSOLIDATED BALANCE SHEET
(in thousands, except share and per share data)
December 31,
ASSETS 1999 1998
<TABLE>
<S> <S> <S> <C> <C>
Current assets:
Cash and cash equivalents $ 4,687 $ 1,877
Accounts receivable 78,418 71,070
Inventories 94,994 99,351
Other current assets 4,492 3,536
Total current assets 182,591 175,834
Property, plant and equipment, net 216,030 176,221
Goodwill 115,350 79,971
Other assets 8,109 6,409
$ 522,080 $ 438,435
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 48,857 $ 38,601
Accrued expenses 19,492 11,646
Current maturities of long-
term debt 1,319 1,351
Total current liabilities 69,668 51,598
Long-term debt 235,302 199,395
Deferred income taxes 29,328 25,289
Other non-current liabilities 2,323 1,845
Shareholders' equity
Preferred shares, $.01 par value;
authorized: 10,000,000 shares;
none outstanding - -
Common shares, $.01 par value;
authorized: 50,000,000 shares;
issued and outstanding:
12,577,464 shares in 1999
and 12,484,418 shares in 1998 126 125
Additional paid-in capital 68,323 66,613
Retained earnings 117,010 93,570
Total shareholders' equity 185,459 160,308
$ 522,080 $ 438,435
</TABLE>
The accompanying notes are an integral part of these financial statements.
20
<PAGE>
GIBRALTAR STEEL CORPORATION
CONSOLIDATED STATEMENT OF INCOME
(in thousands, except per share data)
Year Ended December 31,
1999 1998 1997
<TABLE>
<S> <S> <C> <C> <C>
Net sales $ 621,918 $ 557,944 $ 449,700
Cost of sales 493,945 456,449 375,537
Gross profit 127,973 101,495 74,163
Selling, general and
administrative expense 72,504 57,040 41,560
Income from operations 55,469 44,455 32,603
Interest expense 13,439 11,389 5,115
Income before taxes 42,030 33,066 27,488
Provision for income taxes 17,022 13,226 11,072
Net income $ 25,008 $ 19,840 $ 16,416
Net income per share - Basic $ 1.99 $ 1.59 $ 1.33
Weighted average shares 12,540 12,456 12,357
outstanding - Basic
Net income per share - Diluted $ 1.95 $ 1.57 $ 1.30
Weighted average shares 12,806 12,651 12,591
outstanding - Diluted
</TABLE>
The accompanying notes are an integral part of these financial statements.
21
<PAGE>
GIBRALTAR STEEL CORPORATION
CONSOLIDATED STATEMENT OF CASH FLOWS
(in thousands)
Year Ended December 31,
<TABLE>
1999 1998 1997
CASH FLOWS FROM OPERATING
ACTIVITIES
<S> <S> <S> <C> <C> <C>
Net income $ 25,008 $ 19,840 $ 16,416
Adjustments to reconcile net
income to net cash provided by
operating activities:
Depreciation and amortization 17,452 13,333 8,478
Provision for deferred income taxes 2,383 1,693 2,227
Undistributed equity
investment income (466) (284) (444)
Other noncash adjustments 697 304 239
Increase (decrease) in cash
resulting from changes in (net
of effects from acquisitions):
Accounts receivable (118) (5,363) (176)
Inventories 6,873 (6,309) 1,607
Other current assets (272) (1,430) (726)
Accounts payable and
accrued expenses 10,242 (7,572) (2,597)
Other assets (1,130) (899) (289)
Net cash provided by
operating activities 60,669 13,313 24,735
CASH FLOWS FROM INVESTING ACTIVITIES
Acquisitions, net of cash acquired (65,380) (99,415) (26,475)
Investments in property, plant
and equipment (21,999) (22,062) (21,784) )
Net proceeds from sale of
property and equipment 2,838 187 1,050
Net cash used in investing
activities (84,541) (121,290) (47,209)
CASH FLOWS FROM FINANCING
ACTIVITIES
Long-term debt reduction (67,160) (61,508) (79,962)
Proceeds from long-term debt 94,081 168,825 98,417
Net proceeds from issuance of
common stock 1,014 100 911
Payment of dividends (1,253) - -
Net cash provided by
financing activities 26,682 107,417 19,366
Net increase (decrease) in cash
and cash equivalents 2,810 (560) (3,108)
Cash and cash equivalents at
beginning of year 1,877 2,437 5,545
Cash and cash equivalents at end
of year $ 4,687 $ 1,877 $ 2,437
</TABLE>
The accompanying notes are an integral part of these financial statements.
22
<PAGE>
GIBRALTAR STEEL CORPORATION
CONSOLIDATED STATEMENT OF SHAREHOLDERS' EQUITY
(in thousands)
Additional
Common Shares Paid-in Retained
Shares Amount Capital Earnings
<TABLE>
<S><S> <C> <C> <C> <C>
Balance at December 31, 1996 12,322 $ 123 $ 64,307 $ 57,314
Net income - - - 16,416
Stock options exercised
and tax benefit 73 1 1,562 -
Stock awards 4 - 82 -
Profit sharing plan
contribution 11 - 239 -
Balance at December 31, 1997 12,410 124 66,190 73,730
Net income - - - 19,840
Stock options exercised
and tax benefit 8 - 119 -
Restricted stock granted 55 1 - -
Earned portion of
restricted stock - - 87 -
Profit sharing plan
contribution 11 - 217 -
Balance at December 31, 1998 12,484 125 66,613 93,570
Net income - - - 25,008
Stock options exercised
and tax benefit 72 1 1,124 -
Cash dividend -
$.125 per share - - - (1,568)
Earned portion of
restricted stock - - 116 -
Profit sharing plan
contributions 21 - 470 -
Balance at December 31, 1999 12,577 $ 126 $ 68,323 $ 117,010
</TABLE>
The accompanying notes are an integral part of these financial statements.
23
<PAGE>
GIBRALTAR STEEL CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Principles of Consolidation
The consolidated financial statements include the accounts
of Gibraltar Steel Corporation and subsidiaries (the
Company). Significant intercompany accounts and
transactions have been eliminated.
Use of Estimates
The preparation of financial statements in conformity with
generally accepted accounting principles requires management
to make estimates and assumptions that affect the amounts
reported in the financial statements and accompanying notes.
Actual results could differ from those estimates.
Cash and Cash Equivalents
Cash and cash equivalents include cash on hand, checking
accounts and all highly liquid investments with a maturity
of three months or less.
Inventories
Inventories are valued at the lower of cost or market. Cost
is determined using the first-in, first-out method.
Property, Plant and Equipment
Property, plant and equipment are stated at cost and
depreciated over their estimated useful lives using the
straight-line method. Accelerated methods are used for
income tax purposes. Interest is capitalized in connection
with construction of qualified assets. Under this policy,
interest of $357,000, $404,000 and $963,000 was capitalized
in 1999, 1998 and 1997, respectively.
Goodwill
Goodwill is amortized over 35 years. Amortization expense
was $2,647,000, $1,949,000 and $880,000 in 1999, 1998, and
1997, respectively. Accumulated amortization was $6,251,000
and $3,604,000 at December 31, 1999 and 1998.
Shareholders' Equity
In 1999, 1998 and 1997, the Company issued 20,572, 11,000
and 11,000, respectively, of its common shares as
contributions to its profit sharing plans.
During 1999, the Company declared dividends of $1,568,000,
of which $315,000 is accrued at December 31, 1999.
24
<PAGE>
Interest Rate Exchange Agreements
Interest rate swap agreements, which are used by the Company in
the management of interest rate risk, are accounted for on an
accrual basis. Amounts to be paid or received under interest
rate swap agreements are recognized as interest expense or
income in the periods in which they accrue. Swaps are not used
for trading purposes.
Income Taxes
The financial statements of the Company have been prepared
using the asset and liability approach in accounting for
income taxes which requires the recognition of deferred tax
assets and liabilities for the expected future tax
consequences of temporary differences between the carrying
amounts and the tax bases of other assets and liabilities.
Earnings Per Share
Basic net income per share equals net income divided by the
weighted average shares outstanding during the year. The
computation of diluted net income per share includes all
dilutive common stock equivalents in the weighted average
shares outstanding.
2. ACQUISITIONS
On December 1, 1999, the Company purchased all the
outstanding capital stock of Hughes Manufacturing, Inc.
(Hughes) for approximately $11.5 million in cash. Hughes
manufactures a broad line of fully engineered, code-approved
steel lumber connectors and other metal hardware products.
On November 1, 1999, the Company purchased all the
outstanding capital stock of Brazing Concepts Company
(Brazing Concepts) for approximately $25 million in cash.
Brazing Concepts provides a wide variety of value-added
brazing (i.e., metal joining), assembly and other
metallurgical heat treating services on customer-owned
materials.
On August 1, 1999, the Company purchased the assets and
business of Hi-Temp Incorporated (Hi-Temp) for approximately
$24 million in cash. Hi-Temp provides metallurgical heat
treating services in which customer-owned parts are exposed
to precise temperature and other conditions to improve their
material properties, strength and durability.
On July 1, 1999, the Company purchased all the outstanding
capital stock of K & W Metal Fabricators, Inc. d/b/a Weather
Guard Building Products (Weather Guard) for approximately $7
million in cash. Weather Guard manufactures a full line of
metal building products, including rain-carrying systems,
metal roofing and roofing accessories, for industrial,
commercial and residential applications.
On October 1, 1998, the Company purchased all the
outstanding capital stock of Harbor Metal Treating Co.,
Inc. and its affiliates (Harbor) for $13.5 million in
cash. Harbor is a metallurgical heat treating service
provider.
On June 1, 1998, the Company purchased all the
outstanding common stock of United Steel Products
Company (USP) for approximately $24 million in cash.
USP designs and manufacturers steel lumber connector
products for the building construction market.
25
<PAGE>
On April 1, 1998, the Company purchased the assets and
business of Appleton Supply Co., Inc. (Appleton) for
approximately $28 million in cash. Appleton
manufactures louvers, roof edging, soffitts and other
metal building products.
On March 1, 1998, the Company purchased the assets and
business of The Solar Group (Solar) for approximately
$35 million in cash. Solar manufactures a line of
construction products as well as a complete line of
mailboxes, manufactured primarily with galvanized steel.
These acquisitions have been accounted for under the
purchase method with the results of their operations
consolidated with the Company's results of operations
from the respective acquisition dates. The aggregate
excess of the purchase prices of these acquisitions over
the fair market values of the net assets of the acquired
companies is being amortized over 35 years from the
acquisition dates using the straight-line method.
The following information presents the pro forma
consolidated condensed results of operations as if the
acquisitions had occurred on January 1, 1998. The pro
forma amounts may not be indicative of the results that
actually would have been achieved had the acquisitions
occurred as of January 1, 1998 and are not necessarily
indicative of future results of the combined companies.
(in thousands, except per share data)
Year Ended December 31,
1999 1998
(unaudited)
Net sales $ 664,162 $ 651,224
======== =======
Income before taxes $ 43,524 $ 35,531
====== ======
Net income $ 25,834 $ 20,772
====== ======
Net income per share - Basic $ 2.06 $ 1.67
====== ======
3. ACCOUNTS RECEIVABLE
Accounts receivable are expected to be collected within one
year and are net of reserves for doubtful accounts of
$1,511,000 and $1,230,000 at December 31, 1999 and 1998,
respectively.
4. INVENTORIES
Inventories at December 31 consist of the following:
(in thousands)
1999 1998
Raw material $ 59,899 $ 60,665
Finished goods and work-in-process 35,095 38,686
Total inventories $ 94,994 $ 99,351
====== ======
26
<PAGE>
5. PROPERTY, PLANT AND EQUIPMENT
Property, plant and equipment, at cost less accumulated
depreciation, at December 31 consists of the following:
(in thousands)
1999 1998
Land and land improvements $ 6,961 $ 5,290
Building and improvements 54,782 48,506
Machinery and equipment 204,012 160,633
Construction in progress 8,758 8,730
274,513 223,159
Less accumulated depreciation
and amortization 58,483 46,938
Property, plant and
equipment, net $216,030 $176,221
======= =======
6. OTHER ASSETS
Other assets at December 31 consist of the following:
(in thousands)
1999 1998
Equity interest in partnership $ 4,485 $ 4,020
Other 3,624 2,389
Total other assets $ 8,109 $ 6,409
====== ======
The Company's 31% partnership interest is accounted for
using the equity method of accounting. The partnership
provides a steel cleaning process called pickling to steel
mills and steel processors, including the Company.
7. DEBT
Long-term debt at December 31 consists of the following:
(in thousands)
1999 1998
Revolving credit notes payable $228,128 $196,047
Industrial Development Revenue Bonds 6,362 3,905
Note payable 1,529 -
Other debt 602 794
236,621 200,746
Less current maturities 1,319 1,351
Total long-term debt $235,302 $199,395
======== ========
27
<PAGE>
In 1999, the Company amended its debt agreement increasing
its revolving credit facility to $280,000,000. The facility
is secured by the Company's accounts receivable,
inventories, and property and equipment and is committed
through April 2003. This facility has various interest rate
options which are no greater than the bank's prime rate. In
addition, the Company may enter into interest rate exchange
agreements (swaps) to manage interest costs and exposure to
changing interest rates. At December 31, 1999 the Company
had interest rate swap agreements outstanding which
effectively converted $75,000,000 of floating rate debt to
fixed rates ranging from 6.37% to 7.08% and which terminate
at different dates beginning November 2000. At December 31,
1999, additional borrowings consisted of $153,128,000 with
an interest rate of LIBOR plus a fixed rate. The weighted
average interest rate of these borrowings was 7.07% at
December 31, 1999.
In addition, the Company has Industrial Development Revenue
Bonds payable in installments through September 2018, with
interest rates ranging from a fixed rate of 4.22% to
variable rates of up to 7.10% at December 31, 1999, which
financed the cost of its Tennessee expansion and the
expansion of the Coldwater, Michigan facility, both under
capital lease agreements. The cost of the facilities and
equipment equal the amount of the bonds and include
accumulated amortization of $1,648,000. The agreements
provide for the purchase of the facilities and equipment at
any time during the lease terms at scheduled amounts or at
the end of the leases for nominal amounts.
The aggregate maturities on long-term debt including lease
purchase obligations for the five years following December
31, 1999 are as follows: 2000, $1,319,000; 2001, $1,469,000;
2002, $1,289,000; 2003, $228,752,000; and 2004, $629,000.
The Company had no amounts outstanding under short-term
borrowing for the years ended December 31, 1999 and 1998.
The various loan agreements, which do not require
compensating balances, contain provisions that limit
additional borrowings and require maintenance of minimum net
worth and financial ratios. The Company is in compliance
with the terms and provisions of all its financing
agreements.
Total cash paid for interest in the years ended December 31,
1999, 1998 and 1997 was $13,357,000, $11,257,000 and
$6,155,000, respectively.
8. LEASES
The Company leases certain facilities and equipment under
operating leases. Rent expense under operating leases for
the years ended December 31, 1999, 1998 and 1997 was
$4,899,000, $3,554,000 and $3,771,000, respectively. Future
minimum lease payments under these operating leases are
$4,514,000, $3,979,000, $3,108,000, $2,615,000 and
$1,758,000 for the years 2000, 2001, 2002, 2003 and 2004,
respectively, and $6,985,000 thereafter through 2038.
9. EMPLOYEE RETIREMENT PLANS
Non-union employees participate in various profit sharing
plans. Contributions to these plans are funded annually and
are based on a percentage of pretax income or amounts
determined by the Board of Directors.
Certain subsidiaries have multi-employer non-contributory
retirement plans providing for defined contributions to
union retirement funds.
A supplemental pension plan provides defined pension
benefits to certain salaried employees upon retirement. Net
unfunded periodic pension costs of $199,000 and $166,000
were accrued under this plan in 1999 and 1998, respectively,
and consisted primarily of service cost using a discount
rate of 8.0% and 6.5%, respectively.
28
<PAGE>
Total expense for all retirement plans was $1,957,000,
$1,774,000 and $1,258,000 for the years ended December 31,
1999, 1998 and 1997, respectively.
During 1998, the Company adopted the provisions of
Statement of Financial Accounting Standards No. 132
Employers' Disclosures about Pensions and other Post-
Retirement Benefits (FAS No. 132). Adoption of FAS No. 132
did not effect the Company's results of operations or
financial position.
10. OTHER POST-RETIREMENT BENEFITS
Certain subsidiaries of the Company provide health and life
insurance to substantially all of their employees and to a
number of retirees and their spouses. The net periodic post-
retirement benefit cost charged to expense consisting of
service cost, interest cost and amortization of transition
obligations was $291,000, $255,000 and $223,000 for the
years ended December 31, 1999, 1998 and 1997, respectively.
The approximate unfunded accumulated post-retirement benefit
obligation at December 31, consists of the following (in
thousands):
Benefit Obligation Service Interest Actuarial Benefit Benefit Obligation
at January 1 Cost Cost (Gain)/Loss Payments at December 31
1999 $2,105 90 135 (445) (41) $1,844
1998 $1,808 76 125 152 (56) $2,105
The accumulated post-retirement benefit obligation was
determined using a weighted average discount rate of 8.0% in
1999 and 6.5% in 1998. The medical inflation rate was
assumed to be 7% in 1999 and to decrease to 5% in 2000 and
thereafter. The effect of a 1% increase or decrease in the
annual medical inflation rate would increase or decrease the
accumulated post-retirement benefit obligation at December
31, 1999 by approximately $320,000 and $271,000,
respectively, and increase or decrease the annual service
and interest costs by approximately $40,000.
One of the Company's subsidiaries also provides post-
retirement health care benefits to its unionized employees
through contributions to a multi-employer health care plan.
11. INCOME TAXES
The provision for income taxes consists of the following:
(in thousands)
1999 1998 1997
Current tax expense
Federal $ 12,332 $ 9,749 $ 7,514
State 2,307 1,784 1,331
Total current 14,639 11,533 8,845
Deferred tax expense
Federal 2,040 1,628 2,036
State 343 65 191
Total deferred 2,383 1,693 2,227
Total provision $ 17,022 $ 13,226 $ 11,072
====== ====== ======
29
<PAGE>
Deferred tax liabilities (assets) at December 31, consist of
the following:
(in thousands)
1999 1998
Depreciation $ 29,460 $ 25,088
Goodwill 1,770 916
Inventory method change 740 1,344
Other 945 1,095
Gross deferred tax liabilities 32,915 28,443
State taxes (1,382) (1,062)
Other (4,999) (3,849)
Gross deferred tax assets (6,381) (4,911)
Net deferred tax liabilities $ 26,534 $ 23,532
====== ======
The provision for income taxes differs from the amount of
income tax determined by applying the applicable U.S.
statutory federal income tax rate to income before taxes as
a result of the following differences:
(in thousands)
1999 1998 1997
Statutory U.S. tax rates $ 14,711 $ 11,573 $ 9,621
Increase in rates resulting from:
State and local taxes, net 1,723 1,202 989
Other 588 451 462
$17,022 $13,226 $ 11,072
====== ====== ======
Cash paid for income taxes, net of tax refunds, in the years
ended December 31, 1999, 1998 and 1997 was $11,857,000,
$9,180,000 and $9,100,000, respectively.
12. EARNINGS PER SHARE
Statement of Financial Accounting Standards No. 128 Earnings
Per Share requires dual presentation of basic and diluted
earnings per share on the face of the income statement. The
reconciliation between the computations is as follows:
Basic Diluted Diluted
Income Shares Basic EPS Shares EPS
1999 $25,008,000 12,540,105 $1.99 12,806,338 $1.95
1998 $19,840,000 12,455,554 $1.59 12,651,119 $1.57
1997 $16,416,000 12,357,186 $1.33 12,591,019 $1.30
Included in diluted shares are common stock equivalents of
266,233, 195,565, and 233,833 relating to options for the
years ended December 31, 1999, 1998 and 1997, respectively.
30
<PAGE>
13. STOCK OPTIONS
The Company may grant non-qualified stock options to
officers, employees, non-employee directors and advisers at
an exercise price equal to 100% of market price, and
incentive stock options to officers and other key employees
at an exercise price not less than 100% of market price, up
to an aggregate of 400,000 and 850,000 shares, respectively.
The options may be exercised over a four year period from
the grant date and expire ten years after the date of grant.
The following table summarizes information about stock
option transactions:
Options Weighted Average Options Weighted Average
Outstanding Exercise Price Exercisable Exercise Price
Balance at
January 1, 1997 556,250 $12.63 201,875 $10.80
Granted 220,450 21.75
Exercised (72,219) 11.49
Cancelled (11,250) 10.75
Balance at
December 31, 1997 693,231 $15.68 282,781 $11.55
Granted 336,650 17.36
Exercised (8,749) 11.12
Cancelled (24,502) 17.48
Balance at
December 31, 1998 996,630 $16.24 406,993 $13.30
Granted 10,000 20.56
Exercised (72,474) 13.99
Cancelled (11,450) 18.54
Balance at
December 31, 1999 922,706 $16.44 528,819 $14.88
=======
The Company realized tax benefits of $111,000 and $20,000 in
the years ended December 31, 1999 and 1998, respectively,
associated with the exercise of certain stock options which
have been credited to additional paid-in-capital.
Options outstanding at December 31, 1999 consisted of:
Weighted Weighted
Range of Weighted Average Average Average
Exercise Options Remaining Exercise Options Exercise
Prices Outstanding Contractual Life Price Exercisable Price
$10 - $11 258,752 4.3 years $10.77 258,752 $10.77
$15.63 - $22.50 663,954 7.9 years $18.65 270,067 $18.81
922,706 6.9 years $16.44 528,819 $14.88
======= =======
31
<PAGE>
The Company has adopted the disclosure-only provisions of
Statement of Financial Accounting Standards No. 123
Accounting for Stock-Based Compensation (FAS No. 123).
Accordingly, no compensation cost has been recognized for
the option plans as stock options granted under these plans
have an exercise price equal to 100% of the market price on
the date of grant. If the compensation cost for these plans
had been determined based on the fair value at the grant
dates for awards consistent with the method of FAS No. 123,
the unaudited pro forma effect on the years ended December
31, 1999 and 1998 is as follows:
As Reported Pro forma As Reported Pro forma
1999 1999 1998 1998
Net Income $25,008,000 $23,566,000 $19,840,000 $18,976,000
Net Income per
Share-Basic $1.99 $1.88 $1.59 $1.52
The Black-Scholes option-pricing model was used to estimate
the fair value of the options granted on the date of grant.
The fair values and assumptions used in the model, assuming
no dividends, are as follows:
Expected Stock Risk-Free Dividend
Fair Value Life Volatility Interest Rate Yield
1999 Grant $9.18 5 years 45.1% 4.4% .2%
1998 Grant $7.74 5 years 43.7% 4.4% -
1997 Grant $9.77 5 years 40.2% 6.1% -
The Company also has a Restricted Stock Plan reserved for
issuance of 100,000 common shares for the grant of
restricted stock awards to employees and non-employee
directors at a purchase price of $.01 per share. In 1997,
4,000 shares were awarded to non-employee directors under
this plan and in 1998, 55,000 shares were awarded to
employees.
14. COMMITMENTS AND CONTINGENCIES
The Company is a party to certain claims and legal actions
generally incidental to its business. Management does not
believe that the outcome of these actions, which is not
clearly determinable at the present time, would
significantly affect the Company's financial condition or
results of operations.
32
<PAGE>
QUARTERLY UNAUDITED FINANCIAL DATA
(in thousands, except per share data)
1999 Quarter Ended March 31 June 30 Sept. 30 Dec. 31 Total
Net Sales $143,804 $160,241 $162,909 $154,964 $621,918
Gross Profit 28,418 33,001 34,245 32,309 127,973
Income From
Operations 11,683 15,353 15,426 13,007 55,469
Net Income 4,977 7,288 7,205 5,538 25,008
Net Income
Per Share-Basic $ .40 $ .58 $ .57 $ .44 $ 1.99
Net Income
Per Share-Diluted $ .39 $ .57 $ .56 $ .43 $ 1.95
1998 Quarter Ended March 31 June 30 Sept. 30 Dec. 31 Total
Net Sales $116,383 $144,882 $152,628 $144,051 $557,944
Gross Profit 20,160 26,893 27,691 26,751 101,495
Income From
Operations 8,474 12,330 11,914 11,737 44,455
Net Income 4,121 5,751 5,146 4,822 19,840
Net Income
Per Share-Basic $ .33 $ .46 $ .41 $ .39 $ 1.59
Net Income
Per Share-Diluted $ .33 $ .45 $ .41 $ .38 $ 1.57
33
<PAGE>
Item 9. Changes in and Disagreements with Accountants on
Accounting and Financial Disclosure
None.
PART III
Item 10. Directors and Executive Officers of the Registrant
Information regarding directors and executive officers of the
Company is incorporated herein by reference to the information
included in the Company's definitive proxy statement which will
be filed with the Commission within 120 days after the end of
the Company's 1999 fiscal year.
Item 11. Executive Compensation
Information regarding executive compensation is incorporated
herein by reference to the information included in the
Company's definitive proxy statement which will be filed with
the Commission within 120 days after the end of the Company's
1999 fiscal year.
Item 12. Security Ownership of Certain Beneficial Owners and
Management
Information regarding security ownership of certain beneficial
owners and management is incorporated herein by reference to
the information included in the Company's definitive proxy
statement which will be filed with the Commission within 120
days after the end of the Company's 1999 fiscal year.
Item 13. Certain Relationships and Related Transactions
Information regarding certain relationships and related
transactions is incorporated herein by reference to the
information included in the Company's definitive proxy
statement which will be filed with the Commission within 120
days after the end of the company's 1999 fiscal year.
34
<PAGE>
PART IV
Item 14. Exhibits, Financial Statement Schedules and Reports
on Form 8-K Page Number
(a) (1) Financial Statements:
Report of Independent Accountants 19
Consolidated Balance Sheet at December 31, 1999 and
1998 20
Consolidated Statement of Income for the three
years ended December 31, 1999 21
Consolidated Statement of Cash Flows for the three
years ended December 31, 1999 22
Consolidated Statement of Shareholders' Equity for
the three years ended December 31, 1999 23
Notes to Consolidated Financial Statements 24
(2) Supplementary Data
Quarterly Unaudited Financial Data 33
(3) Exhibits
The exhibits to this Annual Report on Form 10-K
included herein are set forth on the
attached Exhibit Index beginning on page 37.
(b) Reports on Form 8-K
No reports on Form 8-K were filed by the Company during
the three month period ended
December 31, 1999.
35
<PAGE>
SIGNATURES
Pursuant to the requirement 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.
GIBRALTAR STEEL CORPORATION
By /s/Brian J. Lipke
Brian J. Lipke
Chief Executive Officer
and Chairman of the Board
In accordance with 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.
/s/ Brian J. Lipke Chief Executive Officer January 31, 2000
Brian J. Lipke and Chairman of the Board
(principal executive officer)
/s/ Walter T. Erazmus President January 31, 2000
Walter T. Erazmus
/s/ John E. Flint Vice President and January 31, 2000
John E. FLint Chief Financial Officer
(principal financial and
accounting officer)
/s/ Neil E. Lipke Director January 31, 2000
Neil E. Lipke
/s/ Gerald S. Lippes Director January 31, 2000
Gerald S. Lippes
/s/ Arthur A. Russ, Jr. Director January 31, 2000
Arthur A. Russ, Jr.
/s/ David N. Campbell Directr January 31, 2000
David N. Campbell
/s/ William P. Montague Director January 31, 2000
William P. Montague
36
<PAGE>
Exhibit Index
Exhibit Sequentially
Number Exhibit Numbered Page
3.1 Certificate of Incorporation of Registrant
(incorporated by
reference to the same exhibit number to the Company's
Registration Statement on Form S-1 (Registration
No. 33-69304))
3.2 Amended and Restated By-Laws of the Registrant effective
August 11, 1998 (incorporated by reference to Exhibit 3(ii)
to the Company's Quarterly Report on Form 10-Q forthe
quarter ended September 30, 1998)
4.1 Specimen Common Share Certificate (incorporated by
reference to the same exhibit number to the Company's
Registration Statement on Form S-1 (Registration
No. 33-69304))
10.1 Partnership Agreement of Samuel Pickling Management
Company dated June 1, 1988 between Cleveland Pickling, Inc.
and Samuel Manu-Tech, Inc. (incorporated by reference to
Exhibit 10.7 to the Company's Registration Statement on Form S-1
(Registration No. 33-69304))
10.2 Partnership Agreement dated May 1988 among Samuel
Pickling Management Company, Universal Steel Co.
and Ruscon Steel Corp., creating Samuel Steel
Pickling Company, a general partnership
(incorporated by reference to Exhibit 10.8
to the Company's Registration Statement on Form S-1
(Registration No. 33-69304))
10.3 Bond Purchase Agreement dated June 16, 1994 among
the Industrial Development Board of the County
of Hamilton, Tennessee, Fleet Bank of New York and
Gibraltar Steel of Tennessee (incorporated by
reference to Exhibit 10.10 to the Company's
Registration Statement on Form S-1 (Registration
No. 333-03979))
10.4 Lease dated September 1, 1990 between Erie County
Industrial Development Agency and
Integrated Technologies International, Ltd.
(incorporated by reference to Exhibit 10.13 to the
Company's Registration Statement on Form S-1
(Registration No. 33-69304))
10.5 Lease dated June 4, 1993 between Buffalo Crushed
Stone, Inc. and Gibraltar Steel Corporation
(incorporated by reference to
Exhibit 10.14 to the Company's Registration Statement
on Form S-1(Registration No. 33-69304))
37
<PAGE>
Exhibit Sequentially
Number Exhibit Numbered Page
10.6* Employment Agreement dated as of July 9, 1998 between
the Registrant and Brian J. Lipke (incorporated by
reference to Exhibit 10.1 to the Company's Quarterly
Report on Form 10-Q for the quarter ended September 30, 1998)
10.7 Gibraltar Steel Corporation Executive Incentive Bonus
Plan (incorporated by reference to Exhibit 10.16 to the
Company's Registration Statement on Form S-1
(Registration No. 33-69304))
10.8 Agreement dated June 29, 1992 for Adoption by
Gibraltar Steel Corporation of Chase Lincoln
First Bank, N.A. (now Chase Manhattan
Bank, N.A.) Non-Standardized Prototype 401(k)
Retirement Savings Plan (incorporated by
reference to Exhibit 10.17 to the Company's
Registration Statement on Form S-1(Registration No.
33-69304))
10.9* Gibraltar Steel Corporation Incentive Stock Option
Plan, Fourth Amendment and Restatement
(incorporated by reference to Exhibit 10.1
to the Company's Quarterly Report on Form 10-Q
for the quarter ended March 31, 1999)
10.10* Gibraltar Steel Corporation Restricted Stock Plan
(incorporated by reference to Exhibit 10.19 to the
Company's Registration Statement on Form S-1
(Registration No. 33-69304))
10.11* Gibraltar Steel Corporation Restricted Stock Plan,
First Amendment and Restatement (incorporated by
reference to Exhibit 10.13 of the Company's Annual
Report on Form 10-K for the year ended December 31, 1997)
10.12* Gibraltar Steel Corporation Non-Qualified Stock
Option Plan (incorporated by reference to
Exhibit 10.20 to the Company's
Registration Statement on Form S-1
(Registration No. 33-69304))
10.13* Gibraltar Steel Corporation Non-Qualified
Stock Option Plan, First Amendment and Restatement
(incorporated by reference to Exhibit 10.17 to
the Company's Registration Statement on
Form S-1 (Registration No. 333-03979))
10.14* Gibraltar Steel Corporation Profit Sharing Plan dated
August 1, 1984, as Amended April 14, 1986 and May 1,
1987 (incorporated by reference to Exhibit 10.21 to the
Company's Registration Statement on Form S-1
(Registration No. 33-69304))
10.15* Changed in Control Agreement dated July 9, 1998
between Registrant and Brian J. Lipke (incorporated
by reference to Exhibit 10.2 to the Company's
Quarterly Report on Form 10-Q for the quarter
ended September 30, 1998)
38
<PAGE>
Exhibit Sequentially
Number Exhibit Numbered Page
10.16* Form of Change in Control Agreement dated July 9,
1998 between Registrant and each of Neil E. Lipke,
Eric R. Lipke, Walter T. Erazmus, Joseph A. Rosenecker,
Carl P. Spezio and Andrew S. Tsakos (incorporated
by reference to Exhibit 10.3 to the Company's
Quarterly Report on Form 10-Q for the
quarter ended September 30, 1998)
10.17 Second Amended and Restated Credit Agreement dated
August 16, 1999 among Gibraltar Steel Corporation,
Gibraltar Steel Corporation of New York,
Chase Manhattan Bank, N.A., as Administrative
Agent, and various financial institutions that
are signatories thereto 40
10.18 First Amendment, dated November 1, 1999, to the
Second Amended and Restated Credit Agreement dated
August 16, 1999 among Gibraltar Steel Corporation,
Gibraltar Steel Corporation of New York,
Chase Manhattan Bank, N.A., as Administrative Agent,
and various financial institutions that are
signatories thereto 117
10.19 Second Amendment, dated December 1, 1999, to the
Second Amended and Restated Credit Agreement
dated August 16, 1999 among Gibraltar Steel
Corporation, Gibraltar Steel Corporation of New York,
Chase Manhattan Bank, N.A., as Administrative Agent,
and various financial institutions that are
signatories thereto 125
10.20 First Amendment, dated May 28, 1999, to the Partnership
Agreement dated May 1988 among Samuel Pickling
Management Company, Universal Steel Co., and Ruscon Steel
Corp., creating Samuel Steel Pickling Company, a
general partnership 130
10.21* Gibraltar Steel Corporation 401(k) Plan (incorporated
by reference to Exhibit 4.1 to the Company's
Registration Statement on Form S-8 (No. 33-87034))
10.22* First Amendment, dated January 20, 1995, to Gibraltar
Steel Corporation 40l(k) Plan (incorporated by
reference to Exhibit 10.28 to the Company's
Annual Report on Form 10-K for the year ended
December 31, 1994)
21 Subsidiaries of the Registrant 133
27 Financial Data Schedule
________________________________
* Document is a management contract or compensatory
plan or arrangement
39
<PAGE>
(iii)
1
SECOND
AMENDED AND RESTATED
CREDIT AGREEMENT
- Among -
GIBRALTAR STEEL CORPORATION
and
GIBRALTAR STEEL CORPORATION OF NEW YORK
- And -
THE CHASE MANHATTAN BANK
as Administrative Agent
- And -
THE BANKS LISTED ON SCHEDULE 1
DATED: As of August 16, 1999
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I. Definitions 1
1.1 Definitions 1
ARTICLE II. The Credit 9
2.1 Revolving Credit 9
2.2 Letters of Credit 11
2.3 [Intentionally Omitted] 13
2.4 Interest 13
2.5 Prepayment 15
2.6 Use of Proceeds and Letters of
Credit 16
2.7 Special Provisions Governing LIBOR
Loans - Increased Costs 16
2.8 Required Termination and Repayment
of LIBOR Loans 17
2.9 Taxes 18
2.10 Unused Line Fee 18
2.11 Reduction 19
2.12 Administrative Agent's Fee 19
2.13 Payments 19
2.14 Sharing of Payments 19
ARTICLE III. Conditions to the Extension of Credit 21
3.1 Conditions to Extension of Credit 21
3.1.a. Corporate Action 21
3.1.b. Corporate Documents 21
3.1.c. Revolving Note 21
3.1.d. Guaranty 21
3.1.e. Security Agreements 21
3.1.f. Uniform Commercial Code
Searches 22
3.1.g. Subsidiary Action 22
3.1.h. Opinion 22
3.1.i. Certificates 22
3.1.j. Other Matters 22
3.2 Conditions to Subsequent Extensions
of Credit 23
ARTICLE IV. Representations and Warranties 23
4.1 Good Standing and Authority 23
4.2 Valid and Binding Obligation 23
4.3 Good Title 24
4.4 No Pending Litigation 24
4.5 No Consent or Filing 24
4.6 No Violations 24
4.7 Financial Statements 25
4.8 Tax Returns 25
4.9 Federal Regulations 25
4.10 ERISA Matters 26
<PAGE>
4.11 Subsidiaries 26
4.12 Compliance 26
4.13 Fiscal Year 27
4.14 Default 27
4.15 Indebtedness for Borrowed Money 27
4.16 Securities 27
4.17 Inventory Locations 27
4.18 Environmental Matters 27
ARTICLE V. Affirmative Covenants 28
5.1 Payments 28
5.2 Future Financial Statements 28
5.3 Books and Records 29
5.4 Corporate Standing 29
5.5 Discharge of Obligations 30
5.6 Insurance 30
5.7 Examinations 30
5.8 Litigation 31
5.9 Judgments 31
5.10 Fair Labor Standards Act 31
5.11 Notice 31
5.12 Environmental Compliance 31
ARTICLE VI. Negative Covenants 32
6.1 Business Operations 32
6.2 Borrowed Money 32
6.3 Guaranties 33
6.4 Liens 33
6.5 Accumulated Funding Deficiency 33
6.6 Compliance with Law 33
6.7 Expansions, Mergers, Acquisitions
and
Joint Ventures 33
6.8 Loans and Advances 34
6.9 Subsidiaries 34
6.10 Dividends 34
6.11 Voting Stock 34
6.12 Sale of Assets 34
6.13 Lease Rentals 35
6.14 Intentionally Omitted 35
6.15 Interest Coverage Ratio 35
6.16 Net Worth 35
6.17 Funded Debt/EBITDA. 35
6.18 Current Ratio 35
ARTICLE VII. Default 36
7.1 Events of Default 36
7.2 Effects of an Event of Default 39
ARTICLE VIII. Relationship of Chase and the
Administrative
Agent and the Banks 40
8.1 Appointment and Authorization 40
<PAGE>
8.2 No Other Duties 40
8.3 Copies and Notice of Event of
Default or Default 41
8.4 Certain Rights of Chase and the
Administrative Agent 41
8.5 Waiver of Liability of
Administrative Agent 42
8.6 Non-Reliance on Administrative
Agent and Other Banks 43
8.7 Indemnification 44
8.8 Administrative Agent in Its
Individual Capacity 45
8.9 Successor Administrative Agent 45
8.10 Benefit of Article VIII 45
ARTICLE IX. Indemnification - Costs and Expenses 46
9.1 Indemnification 46
9.2 Expenses 46
ARTICLE X. Miscellaneous 47
10.1 Amendments and Waivers 47
10.2 Delays and Omissions 47
10.3 Participations and Assignments 47
10.4 Successors and Assigns 48
10.5 Notices 48
10.6 Governing Law 49
10.7 Counterparts 49
10.8 Titles 49
10.9 Inconsistent Provisions 49
10.10 JURY TRIAL WAIVER 49
10.11 CONSENT TO JURISDICTION 49
<PAGE>
EXHIBIT A - Compliance Certificate - Financial Covenants
EXHIBIT B - Compliance Certificate - General
EXHIBIT C - Revolving Note
Schedule 1 List of Banks
Schedule 2 Employee Benefit Plans
Schedule 3.1.d Subsidiaries Required to Execute Guaranties
Schedule 4.11 Subsidiaries
Schedule 4.15/6.2 Permitted Borrowing
Schedule 4.18 Environmental Matters
Schedule 6.4 Permitted Encumbrances
Schedule 6.8 Permitted Loans and Investments
<PAGE>
AGREEMENT, dated as of August 16, 1999 among
GIBRALTAR STEEL CORPORATION, a Delaware corporation
("Company"); GIBRALTAR STEEL CORPORATION OF NEW YORK, a
New York corporation ("Borrower"); the financial
institutions listed on Schedule 1 hereto as amended
from time to time (collectively, "Banks", and
individually, "Bank"); and THE CHASE MANHATTAN BANK, as
Administrative Agent for the Banks.
WITNESSETH
ARTICLE I. Definitions
1.1 Definitions. As used in this Agreement,
unless otherwise specified, the following terms shall
have the following respective meanings:
"Administrative Agent" - The Chase Manhattan
Bank in its capacity as administrative agent or such
other bank as shall have subsequently been appointed as
successor to Administrative Agent pursuant to Section
8.9.
"Administrative Agent's Office" - The office
of the Administrative Agent at 2300 Main Place Tower,
Buffalo, New York 14202, or such other office of the
Administrative Agent as it shall specify by a notice in
writing to the Borrower, the Company and the Banks.
"Advance", or collectively, "Advances" -
"Advance", or collectively "Advances", as defined in
Section 2.1(a) of this Agreement.
"Affiliate" - Any (a) Person who now or
hereafter has Control of or is now or hereafter under
common Control with, the Company or any Subsidiary or
over whom or over which the Company or any Subsidiary
now or hereafter has Control, (b) any Person who is now
or hereafter related by blood, by adoption or by
marriage to any such Person or now or hereafter resides
in the same home as any Person referred to in
clause (a) of this sentence, (c) any Person who is now
or hereafter an officer of the Company or of any
Subsidiary or (d) any Person who is now or hereafter
related by blood, by adoption or by marriage to any
Person referred to in clause (c) of this sentence or
now or hereafter resides in the same home as any such
Person or over whom or over which any such Person now
or hereafter has Control.
"Bank" and "Banks" - "Bank" and "Banks" as
defined in the preamble of this Agreement.
"Base Rate" - The higher of (i) the Federal
Funds Rate, plus 1/2 of 1%, or (ii) the Prime Rate.
<PAGE>
"Base Rate Loan" - That portion of Advances
from time to time unpaid evidenced by the Revolving
Note and bearing interest at the Base Rate as specified
in Section 2.4.
"Borrower" - "Borrower" as defined in the
preamble of this Agreement.
"Business Day" - (a) For all purposes other
than as covered by clause (b) below, any day excluding
Saturday, Sunday and any day on which national banks in
New York City are authorized by law or other
governmental action to close and (b) with respect to
all notices and determinations in connection with
LIBOR, any date which is a Business Day described in
clause (a) and which is also a day for trading by and
between banks in U.S. dollar deposits in the London
interbank market.
"Capital Expenditure" - The dollar amount of
gross expenditures (including obligations under capital
leases) made for fixed assets, real property, plant and
equipment, and all renewals, improvements and
replacements thereto (but not repairs thereof) incurred
for any period.
"Cash Flow" - For any period, the sum of (i)
Earnings Before Interest and Taxes, plus (ii)
depreciation and amortization expenses and all other
non-cash charges which were deducted in determining
Earnings Before Interest and Taxes.
"Chase" - The Chase Manhattan Bank.
"Code" - The Internal Revenue Code of 1986,
as amended from time to time.
"Collateral Documents" - Collectively, the
Guaranties and the Security Agreements.
"Commitment" - "Commitment" as defined in
Section 2.1(a) of this Agreement.
"Commonly Controlled Entity" - An entity,
whether or not incorporated, which is under common
control with the Company within the meaning of
Section 414(b) or (c) of the Code.
"Company" - "Company" as defined in the
preamble of this Agreement.
"Compliance Certificate - Financial
Covenants" - A certificate from the President or an
appropriate financial officer of the Borrower and the
Company or from the independent certified public
accountants for the Borrower and the Company, as the
case may be, in the form of Exhibit A setting forth the
computations, ratios and calculations evidencing
compliance with Article VI of this Agreement.
<PAGE>
"Compliance Certificate - General" - A
certificate from the President or an appropriate
financial officer of the Borrower and the Company in
the form of Exhibit B annexed hereto certifying that
(i) the Borrower, the Company and its Subsidiaries have
complied with and are in compliance with all the terms,
covenants and conditions of this Agreement which are
binding upon them; (ii) there exists no Default nor
Event of Default as defined in this Agreement, or if
this is not the case, that one or more specified
Defaults or Events of Default have occurred, together
with a description of the action taken or to be taken
by the Borrower and/or the Company to cure the same;
and (iii) the representations and warranties contained
in this Agreement are true with the same effect as
though made on the date of the certificate.
"Consolidated" or "Company on a Consolidated
basis" - The consolidation of the accounts of the
Company and its Subsidiaries in accordance with GAAP,
including principles of consolidation, consistent with
those applied in the preparation of the Consolidated
audited financial statements.
"Control" - (i) The power to vote 5% or more
of the outstanding shares of any class of stock of a
Person which is a corporation, (ii) the beneficial
ownership of 5% or more of the outstanding shares of
any class of stock of a Person which is a corporation
or (iii) the power to direct or cause the direction of
the management and policies of a Person which is not a
corporation, whether by ownership of any stock or other
ownership interest, by agreement or otherwise, in each
case by or on behalf of a single Person or group of
Persons acting as a group for the purposes of filing
Form 13-D with the Securities and Exchange Commission.
"Conversion Date" - The first day of a LIBOR
Period with respect to any LIBOR Loan.
"Credit" - All extensions of credit set forth
in Article II of this Agreement, whether in the form of
Advances, Swingloans or Letters of Credit.
"Credit Pricing Agreement" - The Amended
Credit Pricing Agreement dated as of March 31, 1998,
among the Company, the Borrower, the Banks and the
Administrative Agent setting forth the pricing with
respect to the Revolving Credit, as such agreement may
be amended, replaced or restated from time to time.
"Current Assets" - All assets treated as
current assets in accordance with GAAP, excluding,
however, from the determination of current assets:
prepaid expenses, assets located outside the United
States and loans to Subsidiaries and Affiliates.
<PAGE>
"Current Liabilities" - Those liabilities
classified as current in accordance with GAAP with
adequate provisions for all accrued liabilities,
including, without limitation, all federal and state
taxes, except those taxes classified as deferred in
accordance with GAAP.
"Default" - Any event or occurrence which
with the giving of notice or passage of time or both
constitutes an Event of Default.
"Earnings before Interest and Taxes" - For
any period, the income of an entity for such period
prior to the deduction of any provisions for income
taxes, reserves (including reserves for deferred income
taxes) and interest payable on Indebtedness, determined
in accordance with GAAP.
"Environment" - Any water or water vapor; any
land including land surface or subsurface, air, fish,
wildlife, biota and all other natural resources.
"Environmental Laws" - All federal, state and
local environmental, land use, zoning, health, chemical
use, safety and sanitation laws, statutes, ordinances
and codes relating to the protection of the Environment
and/or governing the use, storage, treatment,
generation, transportation, processing, handling,
production or disposal of Hazardous Substances and the
rules, regulations, policies, guidelines,
interpretations, decisions, orders and directives of
federal, state and local governmental agencies and
authorities with respect thereto.
"Environmental Permits" - All permits,
licenses, approvals, authorizations, consents or
registrations required by any applicable Environmental
Law in connection with ownership, lease, purchase,
transfer, closure, use and/or operation of any property
for the storage, treatment, generation, transportation,
processing, handling, production or disposal of
Hazardous Substances or the sale, transfer or
conveyance of any such property.
"ERISA" - The Employee Retirement Income
Security Act of 1974, as amended from time to time.
"Event of Default" - An "Event of Default" as
defined in Section 7.1 of this Agreement.
"Expansion" - The formation by the Company,
the Borrower or any Subsidiary of an entity which is a
Subsidiary or an Affiliate.
"Federal Funds Rate" - For any period, a
fluctuating interest rate per annum equal for each day
during such period to the weighted average of the rates
on overnight Federal funds transactions with members of
<PAGE>
the Federal Reserve System arranged by Federal funds
brokers, as published for the preceding Business Day by
the Federal Reserve Bank of New York, or, if such rate
is not so published for any day which is a Business
Day, the average of the quotations for such date on
such transactions received by the Administrative Agent
from three Federal funds brokers of recognized standing
selected by it.
"GAAP" - As of the date of any determination,
generally accepted accounting principles as promulgated
by the Financial Accounting Standards Board and/or the
American Institute of Certified Public Accountants,
consistently applied and maintained throughout the
relevant periods and from period to period.
"Guarantor Subsidiary(ies)" - "Guarantor
Subsidiary(ies) as defined in Section 3.1.d of this
Agreement.
"Guaranty(ies)" - The guaranty executed and
delivered by the Company and each Subsidiary, other
than the Borrower, and described in Section 3.1.d or
Section 6.9 of this Agreement.
"Hazardous Substance" - Without limitation,
any flammable explosives, radon, radioactive materials,
asbestos, urea formaldehyde foam insulation,
polychlorinated biphenyls, petroleum and petroleum
based products, methane, hazardous materials, hazardous
wastes, hazardous or toxic substances or related
materials as defined in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as
amended, (42 U.S.C. Section 9601, et seq.), the
Hazardous Materials Transportation Act, as amended (49
U.S.C. Sections 1801, et seq.), the Resource
Conservation and Recovery Act, as amended (42 U.S.C.
Sections 6901, et seq.), the Toxic Substances Control
Act, as amended, (15 U.S.C. Sections 2601, et seq.),
Articles 15 and 27 of the New York State Environmental
Conservation Law or any other applicable Environmental
Law and in the regulations promulgated thereunder.
"Indebtedness" - At a particular date,
without duplication, (a) all indebtedness of a Person
for borrowed money or for the deferred purchase price
of property, whether short term or long term, (b) the
face amount of all letters of credit issued for the
account of such Person and, without duplication, all
drafts drawn thereunder and not repaid by such Person,
and (c) lease obligations of such Person which, in
accordance with GAAP, should be capitalized; provided,
in no event shall Indebtedness include any guaranties
or other contingent obligations.
"Letter of Credit" - An irrevocable
commercial or standby letter of credit issued by Chase
on behalf of the Banks pursuant to this Agreement upon
application by the Borrower.
<PAGE>
"LIBOR" - The rate per annum (rounded upward,
if necessary, to the next highest 1/100 of 1%) equal to
(a) the rate quoted at approximately 11:00 a.m. (London
time) by the principal London branch of the
Administrative Agent on a LIBOR Interest Determination
Date for the offering to leading banks in the London
interbank market of U.S. Dollar deposits in immediately
available funds for the applicable LIBOR Period, and in
an amount equal to the applicable LIBOR Loan; plus (b)
the LIBOR Increment.
"LIBOR (Reserve Adjusted)" - Relative to any
Advance to be made, continued or maintained as, or
converted into, a LIBOR Loan for any LIBOR Period, a
rate per annum (rounded upward, if necessary, to the
next highest 1/100 of 1%) determined pursuant to the
following formula:
LIBOR = LIBOR
(Reserve Adjusted) 1.00 - LIBOR Reserve Percentage
"LIBOR Increment" - The percentage calculated
in accordance with Section 2.4(b) of this Agreement
which is utilized in determining LIBOR.
"LIBOR Interest Determination Date" - means a
Business Day which is two (2) Business Days prior to
the commencement of each LIBOR Period during which the
LIBOR (Reserve Adjusted) rate will be applicable.
"LIBOR Lending Office" - The office of each
Bank designated as such below its name on Schedule 1
hereto or such other office of such Bank (as designated
from time to time by notice from such Bank to the
Borrower), whether or not outside the United States,
which shall be making or maintaining LIBOR Loans of
such Bank hereunder.
"LIBOR Loan" - That portion of Advances from
time to time unpaid and bearing interest at LIBOR
(Reserve Adjusted) as specified in Section 2.4.
"LIBOR Period" - means the 30, 60, 90 or 180
day period selected by the Borrower pursuant to Section
2.4 of the Credit Agreement on which the LIBOR (Reserve
Adjusted) rate is to be quoted.
"LIBOR Reserve Percentage" - For any Bank for
any LIBOR Period, the percentage (expressed as a
decimal) applicable at the time LIBOR for such LIBOR
Period is determined, under regulations issued from
time to time by the Board of Governors of the Federal
Reserve System (or any successor) for determining the
maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) for
such Bank in respect of assets or liabilities
consisting of and including "Eurocurrency Liabilities,"
<PAGE>
as defined in Regulation D of such Board, having a term
approximately equal or comparable to such LIBOR Period.
"Lien" - Any mortgage, deed of trust, pledge,
hypothecation, assignment, security interest, lien,
charge or encumbrance, or preference, priority or other
security agreement or preferential arrangement in
respect of any asset of any kind or nature whatsoever
(including, without limitation, any conditional sale or
other title retention agreement, any financing lease
having substantially the same economic effect as any of
the foregoing, and the filing of, or agreement to give,
any financing statement under the Uniform Commercial
Code or comparable law of any jurisdiction).
"Majority Banks" - The Banks representing
sixty-six percent (66%) of the Commitments from time to
time in effect.
"Multiemployer Plan" - A Plan which is a
multiemployer plan as defined in Section 4001(a)(3) of
ERISA.
"Net Worth" - At a particular date, all
amounts which would be included under shareholders'
equity on a balance sheet of an entity, determined in
accordance with GAAP.
"Note" - Any Revolving Note.
"Permitted Encumbrances" - as listed on
Schedule 6.4 of this Agreement.
"Percentage" - The percentage set forth
opposite the name of each Bank on Schedule 1 hereof.
"Person" - Any individual, corporation,
partnership, joint venture, trust, unincorporated
association, government or political subdivision or
other entity, body, organization or group.
"Plan" - Any employee benefits plan which is
covered by Title IV of ERISA and in respect of which
the Company, the Borrower or a Commonly Controlled
Entity is an "employer" as defined in Section 3(5) of
ERISA.
"Prime Rate" - The prime commercial lending
rate of interest publicly announced by the
Administrative Agent from time to time at its head
office. The Prime Rate may or may not be the most
favorable rate charged by the Administrative Agent to
its customers from time to time.
"Rate Option" - The choice of applicable
interest rates and LIBOR Periods offered to the
Borrower pursuant to Section 2.4 of this Agreement.
<PAGE>
"Release" - The same meaning as given to that
term in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended
(42 U.S.C. Section 9601, et seq.), and the regulations
promulgated thereunder.
"Reportable Event" - Any event with regard to
a Plan described in Section 4043(b) of ERISA or in
regulations issued thereunder.
"Revolving Credit" - The "Revolving Credit"
as defined in Section 2.1(a) of this Agreement.
"Revolving Note" - Collectively, the
promissory notes of Borrower in the form of Exhibit C
evidencing Borrower's promise to repay Advances under
the Revolving Credit, and any renewals, replacements or
extensions thereof.
"Security Agreements" - Security Agreements
as defined in Section 3.1(e) of this Agreement.
"Security Interests" - Security Interest as
defined in Section 3.1(e) of this Agreement.
"Subordinated Debt" - Indebtedness of the
Company or any Subsidiary which is subordinated in form
and content satisfactory to the Administrative Agent
with the agreement of the Majority Banks to any and all
Indebtedness owing to any of the Banks whether arising
out of this Agreement or otherwise.
"Subsidiary" - Any corporation of which at
least 50% of the voting stock is owned by the Company
directly or indirectly through one or more
Subsidiaries.
"Swingloan", or collectively, "Swingloans" -
"Swingloan", or collectively, "Swingloans", as defined
in Section 2.1 (c) of this Agreement.
"Termination Date" - The maturity date of the
Credit, which shall be April 1, 2003 and may be
shortened in accordance with Section 2.11 or 7.2
hereof.
"Total Liabilities" - At a particular date,
the sum, without duplication, of (a) all amounts which
would be included as liabilities on a balance sheet of
an entity at such date, determined in accordance with
GAAP and (b) any Indebtedness of such entity.
1.2 Accounting Terms. All accounting terms
not otherwise defined herein have the meanings assigned
to them in accordance with GAAP consistent with those
applied in the preparation of the audited Consolidated
financial statements of the Company and its
Subsidiaries referred to in this Agreement.
<PAGE>
Capitalized words not otherwise defined in this
Agreement shall have the meanings set forth in the New
York Uniform Commercial Code as in effect on the date
of this Agreement.
ARTICLE II. The Credit
2.1 Revolving Credit.
(a) Advances. Subject to the terms and
conditions of this Agreement and relying upon the
representations and warranties set forth in this
Agreement, and provided that there has been no material
adverse change in the financial condition of the
Borrower or the Company, each Bank, severally and for
itself alone, agrees that it will, from time to time
during the period commencing on the date the conditions
specified in Section 3.1 are satisfied through the
Business Day preceding the Termination Date, make one
or more Advances ("Advance" or collectively "Advances")
to the Borrower equal to its Percentage of the
aggregate amount of Advances requested by Borrower from
all Banks up to the dollar amount set forth opposite
the name of each Bank on Schedule 1 hereto (which
amount, with respect to each Bank, shall be called its
"Commitment"); provided, however, no Bank shall be
required or permitted to make any Advance or
participate in any Letter of Credit if, after giving
effect thereto, the aggregate outstanding principal
amount of all Advances and the aggregate face amount of
Letters of Credit issued ("Revolving Credit") would
exceed Two Hundred sixty Million Dollars
($260,000,000.00) at any one time outstanding. Subject
to Section 2.5 hereof, the Advances may be repaid and
reborrowed in accordance with the provisions hereof;
provided, however, no further Advances shall be made on
or after the Termination Date, at which time the
Revolving Credit must be paid in full.
(b) Method for Borrowing Advances. If
and when the Borrower wishes the Banks to make Advances
available, the Borrower shall notify the Administrative
Agent not later than 10:00 a.m. (New York time) on the
Business Day on which the Advances are to be funded.
The Borrower shall specify (i) the aggregate amount of
the Advances to be made on a designated date, which
shall be at least $100,000.00 and (ii) the proposed
date on which the Advances are to be funded, which
shall be a Business Day. Upon receipt of such notice
from the Borrower, the Administrative Agent shall
promptly notify each of the Banks thereof. Each Bank
shall make an amount equal to such Bank's
Percentage of the requested Advance available to the
Administrative Agent for the account of the Borrower at
the Administrative Agent's Office not later than
1:00 p.m. (New York time) on the designated date of the
Advance, in immediately available funds. As early as
practically possible, but not later than 3:00 p.m. (New
York time) on the date on which the Advance is to be
made and upon fulfillment of the conditions set forth
<PAGE>
in Article III of this Agreement, the Administrative
Agent will make the proceeds of such Advance available
to the Borrower.
Neither the Administrative Agent nor any
Bank shall incur any liability to the Borrower in
acting upon any notice referred to above or
subsection 2.1(c) by telephone which the Administrative
Agent or such Bank believes in good faith to have been
given by a duly authorized officer or other person
authorized to borrow on behalf of the Borrower or for
otherwise acting in good faith.
(c) Swingloans. Subject to the terms
and conditions of this Agreement, relying upon the
representations and warranties set forth in this
Agreement, and so long as the aggregate outstanding
principal amount of all Advances and the aggregate face
amount of Letters of Credit issued are Two Hundred
Sixty Million Dollars ($260,000,000.00) or less, Chase
agrees to make to the Borrower one or more Swingloans
("Swingloan" or collectively "Swingloans") as requested
by the Borrower during the period commencing on the
date the conditions specified in Section 3.1 are
satisfied through the Business Day preceding the
Termination Date in an amount which will not exceed
Five Million Dollars ($5,000,000.00) at any one time
outstanding. At such time and for as long as the
aggregate outstanding principal amount of all Advances
and the aggregate face amount of Letters of Credit
issued are more than Two Hundred Sixty Million Dollars
($260,000,000.00), the Borrower will not request, and
Chase will not make a Swingloan. The Banks other than
Chase will not participate in nor be obligated to
advance Swingloans. The obligation of Chase to make
Swingloans shall automatically terminate on the date of
any reduction in the Commitments in accordance with
Section 2.11 or the cancellation of the Commitments
pursuant to Section 7.2
If and when the Borrower wishes Chase to
make a Swingloan, the Borrower shall notify Chase not
later than 10:00 a.m. (New York time) on the Business
Day on which the Swingloan is to be made of the amount
of the Swingloan desired, which shall be at least
$50,000.00, Chase shall determine and advise the
Borrower promptly of the per annum fixed rate option
applicable to the Swingloan, which rate shall be the
fluctuating interest rate per annum for each day on
overnight Federal funds transactions with members of
the Federal Reserve System, plus 150 basis points
("Fixed Rate"). The Borrower shall immediately notify
Chase if the Swingloan is to bear interest at the Fixed
Rate or the Prime Rate, which notice shall be
irrevocable. Each Swingloan, together with the
interest accrued thereon, shall be prepaid by the
Borrower prior to the close of business on the Business
Day immediately following the Business Day on which
such Swingloan is made.
<PAGE>
(d) The Revolving Note. The Advances
made by each Bank shall be evidenced by a note of the
Borrower to each Bank with blanks appropriately
completed in the form of Exhibit C annexed hereto and
made a part hereof ("Revolving Note"). Each Swingloan
made by Chase shall be evidenced by a separate note
payable to the order of Chase.
Each Note shall be inscribed by the Bank as
holder of the Note on the reverse side thereof or any
continuation thereof with the outstanding principal
balance of the Advance by such Bank, and, in the case
of Chase, with the outstanding principal balance of the
Swingloan, and any such inscription shall constitute
prima facie evidence of the accuracy of the information
so recorded; provided, however, the failure of any Bank
to make any such inscription shall not affect the
Company's obligations under the Note of such Bank or
this Agreement.
2.2 Letters of Credit.
(a) Letters of Credit. Subject to the
terms and conditions of this Agreement and relying upon
the representations and warranties set forth in this
Agreement, Chase upon application of the Borrower,
shall from time to time during the period commencing on
the date the conditions specified in Section 3.1 are
satisfied through the date which is two (2) Business
Days preceding the Termination Date issue Letters of
Credit on behalf of the Banks for the account of the
Borrower, the Company or any Subsidiary in an aggregate
face amount of Letters of Credit outstanding at any one
time not to exceed $5,000,000.00 and each of which
shall have an expiration date which may extend after
the Termination Date but shall not exceed one year from
date of issuance; provided, however, at the request of
the Borrower or the Company, as applicable, Chase may
extend the maturity date of any Letter of Credit for
additional periods not exceeding one year each; and
provided further, Chase will not issue any Letter of
Credit if, after giving effect thereto, (i) the
aggregate outstanding principal amount of all Advances
and the aggregate face amount of Letters of Credit
outstanding would exceed $260,000,000.00, as such
amount may be reduced by an amount designated by the
Borrower pursuant to Section 2.11 hereof, or (ii) the
Percentage of any Bank of its Commitment would be
exceeded upon its purchase of an undivided interest in
such Letter of Credit as provided in Section 2.2(d)
hereof. Each Bank's Commitment shall be used by its
Percentage of the outstanding face amount of each
Letter of Credit upon the issuance thereof.
Each Letter of Credit shall
(i) provide for the payment of drafts in United States
dollars, be presented for honor thereunder by the
beneficiary in accordance with the terms thereof, at
sight when accompanied by the documents described
therein, and (ii) otherwise be in form and substance
<PAGE>
satisfactory to Chase as the issuer of the Letter of
Credit. Upon the issuance of any Letter of Credit,
Chase shall deliver the original of such Letter of
Credit to the beneficiary thereof at the direction of
the Borrower and advise each Bank of the issuance. Any
Bank which believes a Letter of Credit has been issued
in violation of this Section 2.2(a) shall promptly,
after discovery of the relevant facts, notify Chase in
writing.
(b) Application by the Borrower for
Issuance of the Letters of Credit. The Borrower shall
request Chase in writing to issue the Letters of Credit
by delivering to Chase on or before the date hereof, in
the case of Letters of Credit to be issued on the date
hereof, or two Business Days prior to the proposed date
of issuance, in the case of all other Letters of Credit
to be issued hereunder, a Letter of Credit application
in form and content satisfactory to Chase specifying
the account party and completed to the satisfaction of
Chase and such other certificates, documents and other
papers and information as Chase may reasonably request.
Prior to the issuance of a Letter of Credit, Chase
shall advise each Bank of the receipt of an
application.
(c) Letter of Credit Fees. The
Borrower agrees to pay the Administrative Agent for the
accounts of the Banks upon the application by the
Borrower for and the issuance by Chase of any Letter of
Credit, a fee, which fee shall be determined by Chase
at the time of issuance of a Letter of Credit.
(d) Participation in Letters of Credit.
Chase hereby sells to each Bank, and each Bank hereby
purchases from Chase, without recourse to Chase (except
as to payments to be made by the Administrative Agent
to such Bank under Section 2.2(c)), an undivided
interest in each Letter of Credit and in each letter of
credit fee payable pursuant to Section 2.2(c), in each
case equal to such Bank's Percentage thereof.
Upon any drawing under a Letter of
Credit drawn in strict compliance with the requirements
of the Letter of Credit as determined by Chase in its
sole discretion, for the payment of which the Borrower
has not otherwise made funds available, the
Administrative Agent shall notify each of the Banks of
the date of payment of the drawing and the dollar
amount of each Bank's Percentage interest therein.
Such payment by Chase under any Letter of Credit shall
constitute Advances by the Banks subject to the terms
and conditions of this Agreement pertaining thereto
other than Section 3.2.
The obligation of each Bank to
remit the amount of its Advance to the Administrative
Agent pursuant to a drawing under a Letter of Credit in
<PAGE>
accordance with this Section shall be unconditional and
irrevocable under any and all circumstances (unless the
payment of such drawing was the result of Chase's gross
negligence or willful misconduct or such Letter of
Credit was issued in violation of Section 2.2(a)
hereof) and may not be terminated, suspended or delayed
for any reason notwithstanding any other provision of
this Agreement, including the occurrence and
continuance of a Default or Event of Default.
(e) Obligation to Reimburse. Chase
will promptly notify by telephone the Borrower of any
draft drawn pursuant to a Letter of Credit and
presented for payment and of the date Chase intends to
pay such draft; if that is the case. With respect to
any draft paid pursuant to a Letter of Credit, the
Borrower hereby agrees to pay to the Administrative
Agent the amount of such payment on the date of payment
by depositing with the Administrative Agent prior to
10:00 a.m. (New York time) immediately available funds
in the amount of such draft. The failure to so deposit
shall be deemed a request for Advances in an aggregate
amount equal to the amount paid.
(f) Unconditional Obligations. In
order to induce Chase to issue the Letters of Credit
and the Banks to participate therein, the Borrower
agrees that neither Chase nor any Bank shall be
responsible or liable for, and the Borrower's
unconditional obligation to reimburse the
Administrative Agent for the accounts of the Banks for
amounts paid on account of drawings honored under
Letters of Credit shall not be affected by (i) the
validity, sufficiency or genuineness of any document or
instrument presented to Chase in connection with a
Letter of Credit, even if such document or instrument
should in fact prove to be in any or all respects
invalid, insufficient, fraudulent or forged, or
(ii) any action taken or omitted by Chase without gross
negligence or willful misconduct in connection with
making or not making payment under the Letter of
Credit.
2.3 [Intentionally Omitted]
2.4 Interest.
(a) The Credit. The Advances under the
Revolving Credit (other than the Swingloans) shall bear
interest on the unpaid principal amount from time to
time unpaid until maturity (whether by acceleration or
otherwise) at a per annum rate of interest equal to the
Base Rate ("Base Rate Loan"). The rate of interest on
the Base Rate Loans evidenced by the Revolving Note
shall change simultaneously with each change in the
Prime Rate and shall change each Business Day with any
change in the Federal Funds Rate.
Subject to Section 2.7 hereof, the
Borrower may elect to convert any portion of a Base
Rate Loan to a LIBOR Loan or to continue any LIBOR Loan
as a new LIBOR Loan by giving irrevocable notice of
<PAGE>
such election to the Administrative Agent by 10:00 a.m.
(New York time) at least three (3) Business Days prior
to the requested Conversion Date and, in the case of
the continuation of any LIBOR Loan, such conversion or
continuation shall take place on the last day of the
applicable LIBOR Period with respect to the LIBOR Loan
being so continued. The Administrative Agent shall
promptly give each of the Banks notice of the
Borrower's election. Each such request to convert or
continue shall include the Rate Option, the requested
Conversion Date (which shall be a Business Day), the
LIBOR Period selected with respect to any LIBOR Loan,
and the amount to be converted or continued (which
shall be in a principal amount of not less than
$500,000.00 and an integral multiple of $100,000.00 in
the case of conversion to or continuation as a LIBOR
Loan. If no Default nor Event of Default has occurred
and is continuing at such time, such conversion or
continuation shall be made on the requested Conversion
Date, subject to the foregoing limitations in
connection with the conversion or continuation of LIBOR
Loans.
The Administrative Agent shall not incur
any liability to the Borrower in acting upon telephonic
notice referred to above which the Administrative Agent
believes to have been given by a duly authorized
officer or other person authorized to and on behalf of
the Borrower or for otherwise acting under this Section
2.4(a).
(b) LIBOR Increment. The LIBOR
Increment, which is the percentage utilized in
determining LIBOR, shall be determined in accordance
with the Credit Pricing Agreement.
(c) Computation of Interest. Interest
shall be computed on the basis of a 360-day year for
the actual number of days elapsed, which will result in
a higher effective annual rate. Interest shall be
payable on the first day of each March, June, September
and December commencing December 1, 1997 and, in the
case of a LIBOR Loan, interest shall also be payable on
the last day of each applicable LIBOR Period, if
earlier, and on any Conversion Date.
(d) Default Rate. After maturity,
whether by acceleration or otherwise, Borrower shall
pay interest at a per annum rate equal to two percent
(2%) plus the Prime Rate. In no event shall the rate
of interest exceed the maximum rate permitted by
applicable law. If Borrower pays interest in excess of
the amount permitted by applicable law, such excess
shall be applied in reduction of the principal of
Advances made pursuant to this Agreement.
(e) Late Charge. Upon failure to make
any payment of interest or principal hereunder when
due, Borrower promises to pay a late charge computed as
follows:
<PAGE>
(1) Late charges may be assessed
each day on the amount overdue based upon the Prime
Rate from day to day. The formulas for the daily late
charge assessment will be as follows:
(i) For overdue interest:
(Amount overdue) x 110% x (the Prime Rate + 2%)
365
(ii) For overdue principal:
(Amount overdue) x 10% x (the Prime Rate + 2%)
365
(2) If the sum of the late charges
computed as in (1) is less than Ten Dollars ($10.00), a
minimum late charge of Ten Dollars ($10.00) per late
payment may be assessed.
The assessment and/or collection of late
charges shall in no way impair the right to pursue any
other remedies hereunder.
2.5 Prepayment.
(a) Base Rate Loans. The Borrower
shall have the right to prepay at any time without
premium all or any portion of the Advances consisting
of Base Rate Loans, together with interest on the
principal so prepaid to the date of such prepayment.
Any partial prepayment of principal shall be in the
amount of $100,000.00 or an integral multiple thereof.
(b) LIBOR Loans. The Borrower shall
have the right to prepay without premium all or any
portion of the Advances consisting of LIBOR Loans on
the expiration day of the applicable LIBOR Period. If
any LIBOR Loan is prepaid at any other time, the
Borrower shall, upon not less than ten (10) days prior
written notice, pay to the Administrative Agent an
amount equal to (i) the interest which would have
otherwise been payable on the amount prepaid during the
remaining term of the LIBOR Period, less (ii) interest
on the amount prepaid for such term computed at an
interest rate equal to the yield-to-maturity which
could be obtained on United States Treasury
obligations, purchased in the market at the time of
prepayment, having a remaining term and coupon rate
comparable to the remaining term of the LIBOR Period,
and comparable to the applicable interest rate, as
determined by the Administrative Agent in good faith,
and certified to the Borrower, such certificate to be
conclusive, absent manifest error. Any partial
prepayment of principal shall be in the amount of
$100,000.00 or an integral multiple thereof.
<PAGE>
(c) Mandatory Prepayment From Subordinated Debt.
Notwithstanding anything to the contrary contained in
this Agreement, if the Borrower incurs any Subordinated
Debt, the Borrower shall immediately use the proceeds
thereof to prepay outstanding Advances. Such proceeds
shall be used first to prepay Base Rate Loans until all
Base Rate Loans are paid in full and then to prepay
LIBOR Loans. If any LIBOR Loans are so prepaid, the
Borrower shall pay to the Administrative Agent the
additional amounts set forth in subsection (b) above.
Upon any prepayment required pursuant to this
subsection (c), the Borrower shall have the option to
reduce the Commitment pursuant to Section 2.11 of this
Agreement.
2.6 Use of Proceeds and Letters of Credit.
The Borrower covenants to the Banks that it will use
the proceeds advanced under this Agreement subsequent
to the initial Advance for general working capital, for
loans to and investments in its Subsidiaries and
Affiliates to the extent permitted under Section 6.8
hereof and for the financing of Capital Expenditures
and Expansions, mergers, consolidations, acquisitions
of stock or assets of, or investments in a joint
venture of partnership with, any third Person permitted
by Section 6.7 hereof or otherwise consented to by the
Administrative Agent with the agreement of the Majority
Banks.
2.7 Special Provisions Governing LIBOR Loans
- Increased Costs.
(a) In the event that on any LIBOR
Interest Determination Date, any Bank shall notify the
Administrative Agent that it shall have determined
(which determination shall be final, conclusive and
binding) that:
(1) by reason of conditions in the
London interbank market or of conditions affecting the
position of any Bank in such market occurring after the
date hereof, adequate fair means do not exist for
establishing LIBOR, or
(2) by reason of (i) any
applicable law or governmental rule, regulation,
guideline or order (or any written interpretation
thereof and including any new law or governmental rule,
regulation, guideline or order but excluding any of the
foregoing relating to taxes referred to in Section 2.9
of this Agreement) or (ii) other circumstances
affecting any Bank or the London interbank market or
the position of any Bank in such market (such as, but
not limited to, official reserve requirements), LIBOR
does not represent the effective pricing to any Bank
for U.S. dollar deposits of comparable amounts for the
relevant period due to such increased costs then, the
Administrative Agent shall give a notice by telephone,
confirmed in writing, to the Borrower of such
determination.
<PAGE>
(b) Thereafter, the Borrower shall pay
to the Administrative Agent upon written request
therefor, such additional amounts as the Administrative
Agent in its sole discretion, shall reasonably
determine to be required to compensate the Bank for
such increased costs. A certificate as to such
additional amounts submitted to the Borrower by the
Administrative Agent shall, absent manifest error, be
final, conclusive and binding upon all parties hereto.
(c) In lieu of paying such additional
amounts as required by this Section 2.7, the Borrower
may exercise the following options:
(1) If such determination relates
only to a conversion to a LIBOR Loan then being
requested by the Borrower pursuant to the terms hereof,
the Borrower may, on such LIBOR Interest Determination
Date by giving notice by telephone to the
Administrative Agent, withdraw such request.
(2) The Borrower may, by giving
notice by telephone to the Administrative Agent require
the Administrative Agent to convert the LIBOR Loan then
being requested to a Base Rate Loan, or to convert its
outstanding LIBOR Loan that is so affected into a Base
Rate Loan at the end of the then current LIBOR Period.
2.8 Required Termination and Repayment of
LIBOR Loans.
(a) In the event any Bank shall notify
the Administrative Agent that it shall have reasonably
determined, at any time (which determination shall be
final, conclusive and binding but shall be made only
after consultation with the Borrower and the
Administrative Agent), that the making or continuation
of any or all of LIBOR Loans by such Bank:
(1) has become unlawful by
compliance by such Bank in good faith
with any applicable law, governmental
rule, regulation, guideline or order, or
(2) would cause such Bank severe
hardship as a result of a contingency
occurring after the date of this
Agreement which materially and adversely
affects the London interbank market(such
as, but not limited to disruptions
resulting from political or economic
events);
then, and in either such event, the
Administrative Agent shall on such date (and in any
event as soon as possible after making such
determination) give telephonic notice to the Borrower,
confirmed in writing, of such determination,
identifying which of the LIBOR Loans are so affected.
<PAGE>
(b) The Borrower shall, upon the
termination of the then current LIBOR Period applicable
to each LIBOR Loan so affected or, if earlier, when
required by law, repay each such affected LIBOR Loan,
together with all interest accrued thereon.
(c) In lieu of the repayment required
by Section 2.8(b), the Borrower may exercise the
following options:
(1) If the determination by the
Bank relates only to a LIBOR Loan then being converted
by the Borrower pursuant to the terms hereof, the
Borrower may, on such date by giving notice by
telephone to the Administrative Agent, withdraw such
request for conversion.
(2) The Borrower may, by giving
notice by telephone to the Administrative Agent,
require the Banks to convert the LIBOR Loan then being
converted to a Base Rate Loan or to convert any
outstanding LIBOR Loan or LIBOR Loans that are so
affected into a Base Rate Loan at the end of the then
current LIBOR Period (or at such earlier time as
repayment is otherwise required to be made pursuant to
section 2.7(b)). Such notice shall pertain only to the
LIBOR Loan or LIBOR Loans outstanding or to be
outstanding during each such affected LIBOR Period.
2.9 Taxes. If any taxes (other than taxes
with respect to the income of the Banks), or duties of
any kind shall be payable, or ruled to be payable, by
or to any taxing authority of or in the United States,
or any foreign country, or any political subdivision of
any thereof, in respect of any of the transactions
contemplated by this Agreement (including, but not
limited to, execution, delivery performance,
enforcement, or payment of principal or interest of or
under the Note or this Agreement, or the making of a
LIBOR Loan), by reason of any now existing or hereafter
enacted statute, rule, regulation or other
determination (excluding any taxes imposed on or
measured by the net income of the Banks), the Borrower
will:
(1) pay on written request therefor all
such taxes or duties, including interest and penalty,
if any,
(2) promptly furnish the Administrative
Agent with evidence of any such payment, and
(3) indemnify and hold the Banks and
any holder or holders of the Note harmless and
indemnified against any liability or liabilities with
respect to or in connection with any such taxes or the
payment thereof or resulting from any delay or omission
to pay such taxes.
2.10 Unused Line Fee. The Borrower shall pay
to the Administrative Agent for the account of the
Banks a per annum Unused Line Fee (based on a 360 day
<PAGE>
year) on the average unused amount of the Commitments,
which Unused Line fee shall be payable quarterly, in
arrears, on the last day of each September, December,
March and June to and including the Termination Date.
The Unused Line Fee shall be computed in accordance
with the provisions of the Credit Pricing Agreement.
2.11 Reduction. The Borrower may, at any
time by written notice to the Administrative Agent
state its desire to reduce the Commitments of the Banks
to any amount which is not less than the aggregate then
outstanding principal amount of Advances and the
undrawn face amount of Letters of Credit. Any such
reduction shall be pro-rata in order that the
Percentage of each Bank's Commitment is not changed.
Any reductions of the Commitments shall not be
reinstated at any future date and any partial reduction
shall be in the amount of $5,000,000.00 or an integral
multiple thereof. Immediately upon receipt of such
notice by the Administrative Agent, the obligation of
each of the Banks to make Advances and to participate
in Letters of Credit hereunder shall be limited to its
Commitment as reduced pursuant to such notice.
2.12 Administrative Agent's Fee. The
Borrower agrees to pay the Administrative Agent an
agent's fee in the amount set forth in a letter from
the Administrative Agent to the Company dated
October 14, 1994, payable annually, by November 15,
upon the satisfaction of the conditions specified in
Section 3.1 and on each annual anniversary of such date
thereafter until all of the Indebtedness created
pursuant to this Agreement has been paid in full.
2.13 Payments. All payments by the Borrower
under this Agreement of interest, principal, fees and
other expenses shall be made in immediately available
funds not later than 12:00 p.m. on the due date at the
Administrative Agent's Office, unless such amount is
paid by the Administrative Agent's debiting a deposit
account of the Borrower. All such payments applicable
to the Swingloans shall be remitted by the
Administrative Agent to Chase on the same Business Day.
All such other payments, other than the Administrative
Agent's fee, shall be remitted by the Administrative
Agent to each of the Banks on the same Business Day in
accordance with its Percentage.
2.14 Sharing of Payments. If any Bank shall
obtain any payment or other recovery or receive any
collateral (whether voluntary, involuntary, by
application of setoff or otherwise) on account of any
Advances or any participation in a Letter of Credit in
excess of its pro rata share of payments or collateral
then or therewith obtained by all Banks, such Bank
shall purchase from the other Banks such participations
in Advances or Letters of Credit, or shall provide such
other Banks with the benefits of any such collateral or
the proceeds thereof as shall be necessary to cause
such purchasing Bank to share the excess payment or
<PAGE>
other recovery ratably with each of them; provided,
however, if all or any portion of such excess payment
or benefits is thereafter recovered from such Bank,
such purchase shall be rescinded and the purchase price
and benefits returned to the extent of such recovery,
without interest.
The Borrower agrees that each of the other
Banks so purchasing a portion of such Bank's interest
in Advances or participations in Letters of Credit may
exercise all rights (including, but not limited to,
rights of setoff) with respect to such portion
purchased as if such other Banks were the direct
holders thereof. The Borrower agrees that each Bank
shall have a security interest in and the right to set
off as against any outstanding Advances and all other
of the Borrower's liabilities under this Agreement with
respect to any deposit account or other obligation of
the Borrower or any Subsidiary.
Each of the Banks agree that (a) if the
unpaid principal balances of the Revolving Note are not
paid in full at the close of business on the
Termination Date, or (b) if the maturity of the
Revolving Note is accelerated and the Credit is
terminated in accordance with Section 7.2 hereof (the
earlier of such dates being referred to as the
"Purchase Date"), the Bank or Banks receiving payment
at a rate based on the applicable percentage(s) in
excess of similar payments received by any other Bank
shall immediately give notice to the Administrative
Agent of such payment and shall purchase for cash
within thirty (30) Business Days from the Purchase
Date, from any Bank receiving payment at a lesser rate,
an interest in the Revolving Credit in such amounts so
that each Bank shall own an interest in the aggregate
amount of the Revolving Credit then outstanding equal
to its Percentage, plus, if such amount is not paid by
the purchasing Bank within the specified period,
interest thereon shall accrue at the rate equal to the
Federal Funds Rate for the period commencing on the
Purchase Date and ending on the actual date of payment
thereof.
2.15 Replacement Bank. The Borrower may
replace any Bank (a "Replaced Bank") by designating
another bank which is reasonably acceptable to the
Administrative Agent (such Bank being herein called a
"Replacement Bank"). Simultaneously with payment of
all amounts owing to the Replaced Bank hereunder or in
connection herewith, the Replaced Bank shall assign to
the Replacement Bank in accordance with Section 10.3
and without recourse to or warranty by, or expense to,
such Replaced Bank all of the rights and obligations of
such Replaced Bank hereunder (except for the rights as
survive repayment of the Advances). Upon such
assignment such Replaced Bank shall no longer be a
party to this Agreement or have any rights hereunder
and shall be relieved from all obligations to the
Borrower, the Company, the Administrative Agent or the
Banks, and the Replacement Bank shall succeed to the
rights and obligations of such Replaced Bank.
<PAGE>
ARTICLE III. Conditions to the Extension of Credit
3.1 Conditions to Extension of Credit. The
Banks' agreement to extend the Credit and Chase's
agreement to issue Letters of Credit shall be effective
only upon fulfillment of the following conditions at
the date of the execution of this Agreement:
3.1.a. Corporate Action. The Borrower
and the Company shall have taken all necessary and
appropriate corporate action and the Boards of
Directors of the Borrower and the Company shall have
adopted resolutions authorizing the Credit, the
execution and delivery of this Agreement, the Revolving
Note and the Guaranties executed by the Borrower and
the Company, as appropriate, and the taking of all
action required of the Borrower and the Company by this
Agreement; and the Borrower and the Company shall have
furnished to the Administrative Agent copies certified
as of the date of the execution of this Agreement of
such corporate resolutions and such other corporate
documents as any Bank shall reasonably request.
3.1.b. Corporate Documents. There
shall have been furnished to the Administrative Agent
(a) certificates of the Company and each Subsidiary's
good standing duly issued of recent date by an official
of the jurisdiction of its incorporation; (b) copies of
the certificate of incorporation and by-laws of the
Company and each Subsidiary, certified by their
Secretaries as of the date of the execution of this
Agreement; and (c) certificates of incumbency, dated
the date of the execution of this Agreement specifying
the officers of the Company and each Subsidiary,
together with their specimen signatures.
3.1.c. Revolving Note. The Borrower
shall have executed and delivered to each of the Banks
a Revolving Note, appropriately completed, evidencing
the Borrower's obligation to repay the Revolving
Credit.
3.1.d. Guaranty. The Borrower shall
furnish to the Administrative Agent, with an executed
counterpart for each Bank, the written continuing
guaranty ("Guaranty") of the Company and each
Subsidiary set forth in Schedule 3.1.d attached hereto
and made a part hereof (individually, "Guarantor
Subsidiary" and collectively, "Guarantor Subsidiaries",
such Guaranty to be in form and content satisfactory to
each of the Banks guaranteeing the payment of any and
all indebtedness and liabilities of the Borrower to
each of the Banks, whether now existing or hereafter
incurred pursuant to this Agreement.
3.1.e. Security Agreements. The
Company shall have executed and delivered, and shall
have caused each Guarantor Subsidiary to have executed
and delivered, to the Administrative Agent (a) security
<PAGE>
agreements in form and content satisfactory to the
Banks granting to the Administrative Agent for the
benefit of all of the Banks security interests
(collectively, the "Security Interests") in all
Accounts, Inventory, Equipment, Investment Property,
Documents, Instruments, General Intangibles, Chattel
Paper and Fixtures, whether now owned or existing or
hereafter acquired or arising, wherever located, of the
Company and each Guarantor Subsidiary and any and all
products and proceeds thereof, as continuing collateral
security for the payment of any and all indebtedness
and liabilities, whether now owed or hereafter
incurred, of the Borrower to any of the Banks and the
Administrative Agent arising under this Agreement or
any Collateral Document, (b) appropriate financing
statements to perfect the Security Interests, which
Security Interests shall at the time of the execution
of this Agreement, be superior to all other liens and
security interests in such property except Permitted
Encumbrances.
3.1.f. Uniform Commercial Code
Searches. The Administrative Agent shall be in receipt
of searches of the appropriate filing records in each
office where financing statements must be filed
pursuant to Section 3.1(e) in order to confirm the
priority of the Security Interests, except as otherwise
determined by all of the Banks.
3.1.g. Subsidiary Action. Each
Guarantor Subsidiary other than the Borrower (a) shall
have taken all necessary and appropriate corporate
action and the Boards of Directors of each Guarantor
Subsidiary shall have adopted resolutions authorizing
the execution and delivery of the Guaranties executed
by it and the taking of all action called for thereby,
and (b) shall have furnished to the Administrative
Agent copies, certified as of the date of the execution
of this Agreement, of such corporate action and such
other corporate documents as any of the Banks shall
reasonably request.
3.1.h. Opinion. Independent Counsel
for the Company and its Subsidiaries, Lippes,
Silverstein, Mathias & Wexler, LLP, shall have
furnished to the Administrative Agent, with a signed
copy for each Bank, its favorable opinion, in form and
content satisfactory to each of the Banks and their
counsels, dated the date of the execution of this
Agreement, as to the matters referred to in
Sections 4.1, 4.2, 4.4, 4.5 and 4.6 of this Agreement.
3.1.i. Certificates. The Company shall
have caused to be delivered to the Administrative Agent
a Compliance Certificate appropriately completed and
insurance certificates, binders or policies evidencing
compliance with Section 5.6.
<PAGE>
3.1.j. Other Matters. All matters
incidental to the execution and delivery of this
Agreement, the Revolving Note and the Guaranties, and
all action required on the part of the Borrower, the
Company and each Subsidiary by this Agreement, shall be
satisfactory to each of the Banks and their counsels.
3.2 Conditions to Subsequent Extensions of
Credit. Subsequent to the satisfaction of the
conditions set forth in Section 3.1, each request to
the Administrative Agent for an Advance or to Chase for
a Letter of Credit shall constitute confirmation by the
Borrower and the Company of all the matters set forth
in the form of the Compliance Certificate - General in
the form of Exhibit B as of the date of the Advance or
the Letter of Credit in the same manner as if a written
Compliance Certificate had been delivered, and the
statements made shall be true on the date of such
extension of credit. No Advance shall be made nor
Letters of Credit issued if such certification is not
made or if the Administrative Agent has received
written notice from any Bank that it believes that a
Default exists.
ARTICLE IV. Representations and Warranties
Each of the Borrower and the Company makes
the following representations and warranties, which
shall be deemed to be continuing representations and
warranties so long as any indebtedness of the Borrower
to any of the Banks, Chase or the Administrative Agent,
including indebtedness for fees and expenses, shall
remain unpaid, any Letter of Credit shall remain
outstanding or the Commitments shall remain in effect:
4.1 Good Standing and Authority. Each of
the Borrower, the Company and each of the Subsidiaries
is a corporation, duly organized, validly existing, and
in good standing under the laws of the state of its
incorporation; has powers and authority to transact the
business in which it is engaged; is duly licensed or
qualified and in good standing in each jurisdiction in
which the conduct of such business requires such
licensing or such qualification, which singly or in the
aggregate is material to the operations of the Company
on a Consolidated basis; and has all necessary power
and authority to enter, as appropriate, this Agreement
and to execute, deliver and perform this Agreement, the
Revolving Note, the Guaranties and any other document
executed in connection with this Agreement, all of
which have been duly authorized by all proper and
necessary corporate and shareholder action.
4.2 Valid and Binding Obligation. This
Agreement, the Revolving Note, the Guaranties and any
other document executed in connection herewith have
been duly executed and delivered by the Borrower, the
Company and each of the Guarantor Subsidiaries and
constitutes the legal, valid and binding obligations of
the Borrower, the Company and each Guarantor
Subsidiary, as the case may be, enforceable against the
<PAGE>
Borrower, the Company or such Guarantor Subsidiary, as
the case may be, in accordance with their respective
terms.
4.3 Good Title. Each of the Borrower, the
Company and each of the Guarantor Subsidiaries has good
and marketable title or a valid leasehold interest to
all of its assets, none of which is subject to any Lien
except Permitted Encumbrances.
4.4 No Pending Litigation. There are not
any actions, suits, proceedings (whether or not
purportedly on behalf of the Borrower, the Company or
any Subsidiary) or investigations pending or, to the
knowledge of the Borrower or the Company, threatened
against the Borrower, the Company or any Subsidiary or
any basis therefor, which, if adversely determined,
would, in any case or in the aggregate, materially
adversely affect the property, assets, financial
condition or business of the Company on a Consolidated
basis or materially impair the right or ability of the
Borrower, the Company or any Subsidiary to carry on its
operations substantially as now conducted or
anticipated to be conducted in the future, or which
question the validity of this Agreement, the Revolving
Note, the Guaranties or other documents required by
this Agreement, or any action taken or to be taken
pursuant to any of the foregoing.
4.5 No Consent or Filing. No consent,
license, approval or authorization of, or registration,
declaration or filing with, any court, governmental
body or authority or other Person is required on the
part of the Borrower, the Company or any Subsidiary in
connection with the valid execution, delivery or
performance of this Agreement, the Revolving Note, the
Guaranties or other documents required by this
Agreement or in connection with any of the transactions
contemplated thereby.
4.6 No Violations. Neither the Borrower,
the Company nor any Subsidiary is in violation of any
term of its certificate of incorporation or by-laws, or
of any mortgage, borrowing agreement or other
instrument or agreement pertaining to Indebtedness for
borrowed money which might reasonably be expected to
result in a material and adverse effect, singly or in
the aggregate to the Company on a Consolidated basis,
upon its business or assets. Neither the Borrower, the
Company nor any Subsidiary is in violation of any term
of any other indenture, instrument, or agreement to
which it is a party or by which it may be bound,
resulting, or which might reasonably be expected to
result, in a material and adverse effect, singly or in
the aggregate to the Company on a Consolidated basis,
upon its business or assets. Neither the Borrower, the
Company nor any Subsidiary is in violation of any
order, writ, judgment, injunction or decree of any
court of competent jurisdiction or of any statute, rule
or regulation of any competent governmental authority
which might reasonably be expected to result in a
material and adverse effect upon its business or
<PAGE>
assets. The execution and delivery of this Agreement,
the Revolving Note, the Guaranties and other documents
required by this Agreement and the performance of all
of the same is and will be in compliance with the
foregoing and will not result in any violation or
result in the creation of any Lien upon any properties
or assets. There exists no fact or circumstance not
disclosed in this Agreement, in the documents furnished
in connection herewith or the Company's filings under
the Securities Exchange Act of 1934, which materially
adversely affects or in the future (so far as the
Borrower or the Company can now foresee) may materially
adversely affect the condition, business or operations
of the Company on a Consolidated basis, except those
facts and circumstances which generally affect all
Persons engaged in the Borrower's or the Company's
lines of business.
4.7 Financial Statements. The Company has
made available to each Bank audited financial
statements of the Company on a Consolidated basis
showing its financial condition as of December 31, 1997
and December 31, 1998 and its cash flows for the fiscal
year then ended. All financial statements have been
prepared in accordance with GAAP consistently applied
throughout the intervals involved. Since the date of
the last such financial statements to the date of
execution hereof, there have not been any material
adverse changes in the financial condition of the
Company from that disclosed in such financial
statements, except as disclosed in the Company's
interim financial statement as of and for the period
ended June 30, 1999. None of the property or assets
shown in the financial statements delivered to the
Banks has been materially adversely affected as the
result of any fire, explosion, accident, flood,
drought, storm, earthquake, condemnation, requisition,
statutory or regulatory change, act of God, or act of
public enemy or other casualty, whether or not insured.
4.8 Tax Returns. The Borrower and the
Company have duly filed all federal and other tax
returns required to be filed for themselves and all
Subsidiaries and have duly paid all taxes required by
such returns.
4.9 Federal Regulations. Neither the
Borrower, the Company nor any Guarantor Subsidiary is
engaged principally, or as one of its important
activities, in the business of extending or arranging
for the extension of credit for the purpose of
purchasing or carrying "margin stock" (as defined in
Regulations G and U issued by the Board of Governors of
the Federal Reserve System). Likewise, neither the
Borrower, the Company nor any Guarantor Subsidiary owns
nor intends to carry or purchase any such "margin
stock", and the Borrower will not use the proceeds of
any Advance to purchase or carry (or refinance any
borrowing the proceeds of which were used to purchase
or carry) any such "margin stock". Neither the
Borrower, the Company nor any Guarantor Subsidiary is
<PAGE>
an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, or a
"holding company," or a "subsidiary company" of a
"holding company" or of a "subsidiary company" of a
"holding company," within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
4.10 ERISA Matters. No Plan has been
terminated or partially terminated or is insolvent or
in reorganization, nor have any proceedings been
instituted to terminate or reorganize any Plan; neither
the Borrower, the Company nor any Subsidiary has with
drawn from any Plan in a complete or partial
withdrawal, nor has a condition occurred which if
continued would result in a complete or partial
withdrawal; neither the Borrower, the Company nor any
Subsidiary has incurred any withdrawal liability,
including contingent withdrawal liability, to any Plan
pursuant to Title IV of ERISA; neither the Borrower,
the Company nor any Subsidiary has incurred any
liability to the Pension Benefit Guaranty Corporation
other than for required insurance premiums which have
been paid when due; no Reportable Event has occurred
and is continuing; and no Plan or other "employee
pension benefit plan" as defined in Section 3(2) of
ERISA to which the Borrower, the Company or any
Subsidiary is a party has an "accumulated funding
deficiency" (whether or not waived) as defined in
Section 302 of ERISA or in Section 412 of the Code.
Each Plan and each other "employee benefit plan" as
defined in Section 3(3) of ERISA to which the Borrower,
the Company or any Subsidiary is a party is in
substantial compliance with ERISA, and no such plan,
nor any administrator, trustee or fiduciary thereof, to
the best knowledge of the Borrower and the Company, has
engaged in a prohibited transaction described in
Section 406 of ERISA or in Section 4975 of the Code.
4.11 Subsidiaries. The Borrower and the
Company have no Subsidiaries except as listed in
Schedule 4.11 of this Agreement.
4.12 Compliance. The present conduct of the
business and operations of the Borrower, the Company
and each Guarantor Subsidiary and the present ownership
and use of each asset of the Borrower, the Company and
each Subsidiary are in compliance in all material
respects with each applicable statute, regulation and
other law (including, but not limited to, the
Environmental Protection Act, the Occupational Health
and Safety Act, the Comprehensive Environmental
Response, Compensation and Liability Act and the
Resource Conservation and Recovery Act), except where
non-compliance would not result in a material adverse
effect, singly or in the aggregate to the Company on a
Consolidated basis, upon its business or assets. Each
authorization, approval, permit, consent, franchise and
license from, each registration and filing with, each
declaration, report and notice to, and each other act
by or relating to, any Person necessary for the present
or anticipated conduct of the business or operations
<PAGE>
of, or for the present or anticipated ownership or use
of any asset, material singly or in the aggregate to
the Company on a Consolidated basis has been duly
obtained, made, given or done, and is in full force and
effect.
4.13 Fiscal Year. The fiscal year of the
Borrower and the Company is the year ending December
31.
4.14 Default. There does not exist any
Default or Event of Default.
4.15 Indebtedness for Borrowed Money. The
Borrower, the Company and each of the Guarantor
Subsidiaries have no Indebtedness arising from the
borrowing of any money, except for Indebtedness
committed or outstanding on the date of this Agreement
pursuant to any lease, loan or credit facility fully
and accurately described in Schedule 4.15 to this
Agreement.
4.16 Securities. Each outstanding share of
stock, debenture, bond, note and other security of the
Borrower, the Company and each Subsidiary has been
validly issued in full compliance with each statute,
regulation and other law, and, if a share of stock, is
fully paid and nonassessable.
4.17 Inventory Locations. All of the
Borrower's, the Company's and each of the Subsidiaries'
Inventory is located at the locations set forth in
Schedule 4.17 attached hereto and made a part hereof.
4.18 Environmental Matters.
(a) No above ground or underground
storage tanks containing Hazardous Substances are
located on any property owned, leased or operated by
the Company or any Subsidiary, except for storage tanks
containing diesel fuel, gasoline or waste oil, which
tanks are in compliance with all applicable
Environmental Laws. No above ground or underground
storage tanks containing Hazardous Substances have been
located on any such property except for tanks which
were removed in compliance with applicable
Environmental Laws.
(b) No property owned, leased or
operated by the Company or any Subsidiary is or has
been used for the storage, treatment, generation,
transportation, processing, handling, production or
disposal of any Hazardous Substance or as a landfill or
other waste disposal site or for military,
manufacturing or industrial purposes or for the storage
of petroleum or petroleum based products, in violation
of any law, except as disclosed on Schedule 4.18.
(c) To the knowledge of the Borrower
and/or the Company, no Release of a Hazardous
<PAGE>
Substance, which would be in violation of any law is
occurring or is threatened on, at, from or near any
property owned, leased or operated by the Company or
any Subsidiary, which through soil, subsoil, bedrock,
surface water or groundwater migration is located on
the property owned, leased or operated by the Company
or any Subsidiary, except as disclosed on
Schedule 4.18.
(d) Neither the Company nor any
Subsidiary is subject to any existing, pending or, to
the knowledge of the Company or Borrower, threatened
suit, claim, notice of violation or request for
information under any of the Environmental Laws, except
as disclosed on Schedule 4.18.
(e) The Company and each Subsidiary are
in compliance with all Environmental Laws to the effect
that any violation would not have a material adverse
effect upon the business or operations of the Company
on a Consolidated basis.
(f) All Environmental Permits have been
obtained or applied for and are in full force and
effect.
(g) There are no agreements, consent
orders, decrees, judgments, license or permit
conditions or other orders or directives of any
federal, state or local court, governmental agency or
authority relating to the past, present or future
ownership, use, operation, sale, transfer or conveyance
of any property owned, leased or operated by the
Company or any Subsidiary which require any change in
condition or any work, repairs, construction,
containment, clean up, investigation, study, removal or
other remedial action or capital expenditures.
ARTICLE V. Affirmative Covenants
During the term of this Agreement, and so
long thereafter as any indebtedness of the Borrower to
any of the Banks, Chase or the Administrative Agent,
including any indebtedness for fees and expenses, shall
remain unpaid, any Letter of Credit shall remain
outstanding or the Commitments shall remain in effect,
the Borrower and the Company, unless written consent of
the Administrative Agent is obtained, will:
5.1 Payments. Cause the Borrower to
punctually pay or cause to be paid the principal of and
interest on all Indebtedness and all fees incurred by
it pursuant to this Agreement in the manner set forth
in this Agreement.
5.2 Future Financial Statements. Furnish to
each of the Banks (a) within ninety (90) days after and
as at the close of each fiscal year, a Consolidated
balance sheet and Consolidated statements of operations
and earnings and changes in financial position of the
Company and all Subsidiaries (including, without
limitation, the Borrower), each examined and reported
<PAGE>
upon by an independent certified public accounting firm
reasonably satisfactory to the Banks, and prepared in
accordance with GAAP, which report shall not contain
any qualification or disclaimer of opinion by reason of
audit limitations imposed by Borrower or Company,
together with Compliance Certificates in the forms of
Exhibits A and B certified by an appropriate financial
officer of the Borrower and the Company; (b) promptly,
after preparation, copies of all such proxy statements,
financial statements and reports which the Company
sends to its stockholders, and copies of all regular,
periodic and special reports, as well as all
registration statements, which the Company files with
the Securities and Exchange Commission, including, but
not limited to, Forms 10-K and 10-Q; (c) promptly after
the filing thereof with the Pension Benefit Guaranty
Corporation, a copy of each annual report filed with
respect to each Plan; (d) within forty-five (45) days
after and as at the close of each of its fiscal
quarters of each year, a Consolidated and consolidating
balance sheet and related Consolidated and
consolidating statement of operations and earnings and
changes in financial position of the Company and all
Subsidiaries (including, without limitation, the
Borrower) for the previous fiscal quarter and from the
beginning of the fiscal year to the end of such fiscal
quarter, except consolidating financial statements
shall only be required as of and for the period ending
at the close of a fiscal year, together with
comparisons to the previous year, if appropriate, and
to budget projections, prepared by the Company
internally in accordance with GAAP, and certified by an
appropriate financial officer of Borrower and Company,
together with a Compliance Certificate - Financial
Covenants in the form of Exhibit A; (e) any and all
information regarding Borrower's and the Company's
business, condition or operations, financial or
otherwise, which is furnished to any other creditor,
upon the request of the Banks; and (f) such additional
information, books, records, reports or statements as
the Administrative Agent or any of the Banks may from
time to time reasonably request regarding the financial
and business affairs of the Borrower, the Company and
each Subsidiary, all prepared in form and detail
satisfactory to the Banks.
5.3 Books and Records. Maintain true and
complete records and books in accordance with generally
accepted accounting principles consistently applied
including, without limiting the generality of the
foregoing, appropriate reserves for possible losses and
liabilities and notify each Bank promptly in writing of
any proposed change in the location at which such books
and records are maintained.
5.4 Corporate Standing. Maintain, and cause
each Subsidiary to maintain, its corporate existence in
good standing except any Subsidiary may merge into or
consolidate with the Company or any other Subsidiary so
long as such Subsidiary has executed and delivered a
Guaranty in favor of the Administrative Agent for the
<PAGE>
benefit of the Banks (to the extent required by
Section 3.1.d), and remain or become duly licensed or
qualified and in good standing in each jurisdiction in
which the conduct of its business requires such
qualification or licensing.
5.5 Discharge of Obligations. Cause to be
paid and discharged all obligations when due and all
lawful taxes, assessments and governmental charges or
levies imposed upon the Borrower, the Company or any
Subsidiary, or upon any property, real, personal or
mixed, belonging to the Borrower, the Company or any
Subsidiary, or upon any part thereof, before the same
shall become in default, as well as all lawful claims
for labor, materials and supplies which, if unpaid,
might become a lien or charge upon the property or any
part of it. Notwithstanding the previous sentence,
neither the Borrower, the Company nor any Subsidiary
shall be required to cause to be paid and discharged
any obligation, tax, assessment, charge, levy or claim
so long as its validity is contested in the normal
course of business and in good faith by appropriate and
timely proceedings and the Borrower, the Company or any
Subsidiary, as the case may be, sets aside on its books
adequate reserves with respect to each tax, assessment,
charge, levy or claim so contested, nor shall the
Borrower, the Company nor any Subsidiary be required to
pay or discharge any trade liability which is not past
its stated due date by more than thirty (30) days.
5.6 Insurance. (a) Keep, and cause each
Subsidiary to keep, all its property so insurable
insured at all times with responsible insurance
carriers satisfactory to each of the Banks against
fire, theft and other risks in coverage, form and
amount satisfactory to each of the Banks; (b) keep, and
cause each Subsidiary to keep, adequately insured at
all times in reasonable amounts with responsible
insurance carriers against liability on account of
damage to persons or property and under all applicable
worker's compensation laws; (c) promptly deliver to the
Administrative Agent certificates of insurance or any
of those insurance policies required to be carried
pursuant hereto, with appropriate endorsements
designating the Administrative Agent for the benefit of
the Banks as their interests may appear as a named
insured or loss payee as requested by the
Administrative Agent; and (d) cause each such insurance
policy to contain a thirty (30) day notice of
cancellation or material change in coverage provision
satisfactory to the Administrative Agent.
5.7 Examinations. Permit the Banks or their
agents at all reasonable times to visit and inspect any
and all properties of Borrower, Company or any
Guarantor Subsidiary and to examine and make extracts
from or copies of any of Borrower's, Company's or its
Guarantor Subsidiary's books, ledgers, reports,
correspondence and other records, and discuss their
affairs, finances and accounts with officers of
Borrower, Company and each Guarantor Subsidiary.
<PAGE>
5.8 Litigation. Promptly notify each of the
Banks in writing as soon as the Borrower or Company has
knowledge thereof, of the institution or filing of any
litigation, action, suit, claim, counterclaim, or
administrative proceeding against, or investigation of,
the Borrower, the Company or any Subsidiary to which
the Borrower, the Company or any Subsidiary is a party
by or before any regulatory body or governmental agency
(a) the outcome of which involves more than
$2,000,000.00 singularly or cumulatively, except for
litigation in which the contingent liability is fully
covered by insurance, or (b) which questions the
validity of this Agreement, the Revolving Note, any of
the Guaranties or any action taken or to be taken
pursuant to any of the foregoing; and furnish or cause
to be furnished to any Bank such information regarding
the same as such Bank may request.
5.9 Judgments. Promptly notify each of the
Banks in writing as soon as the Company or Borrower has
knowledge thereof, of any judgment, order or award of
any court, agency or other governmental agency or any
arbitrator, (a) the outcome of which may materially and
adversely affect the finances or operations of the
Borrower, the Company or any Subsidiary or the
Company's or Borrower's ability to fulfill its
obligations hereunder or which involves more than
$1,000,000.00 unless adequately covered by insurance,
or (b) renders invalid this Agreement, the Revolving
Note, any of the Guaranties or any action taken or to
be taken pursuant to any of the foregoing, and furnish
or cause to be furnished to any Bank such information
regarding the same as such Bank may request.
5.10 Fair Labor Standards Act. Comply with,
and cause each Subsidiary to comply with, the
provisions of the Fair Labor Standards Act of 1938, as
amended.
5.11 Notice. Promptly notify the
Administrative Agent in writing with full details of
any Default or Event of Default, or which might
materially and adversely affect the financial condition
or operations of the Borrower, the Company or any
Guarantor Subsidiary.
5.12 Environmental Compliance.
(a) Comply with all Environmental Laws.
(b) Not cause or permit any change to
be made in the present or intended use of any property
owned, leased or operated by the Company or any
Subsidiary which would (i) involve the storage,
treatment, generation, transportation, processing,
handling, production or disposal of any Hazardous
Substance or the use of any such property as a landfill
or other waste disposal site or for the storage of
petroleum or petroleum based products (except in
compliance with applicable Environmental Laws), (ii)
<PAGE>
violate any applicable Environmental Laws, or (iii)
constitute non-compliance with any Environmental
Permit.
(c) Deliver promptly to each of the
Banks (i) copies of any documents received from the
United States Environmental Protection Agency or any
state, county or municipal environmental or health
agency concerning the Company's operations except
documents of general applicability; and (ii) copies of
any documents submitted by the Company to the United
States Environmental Protection Agency or any state,
county or municipal environmental or health agency
concerning its operations, except submissions in the
ordinary course of business.
5.13 Year 2000 Compliance. Any reprogramming
required to permit the proper functioning in and
following the year 2000, of (i) the Borrower's, the
Company's and each Subsidiary's computer systems and
(ii) equipment containing embedded microchips
(including systems and equipment supplied by others or
with which the Borrower's, the Company's and each
Subsidiary's systems interface) which is material to
the business of the Borrower, the Company or a
Subsidiary, as applicable, and the testing of all such
systems and equipment, as so reprogrammed, has been
completed. The cost to the Borrower, the Company or
any Subsidiary of such reprogramming and testing and of
the reasonably foreseeable consequences of year 2000 to
the Borrower or the Company (including, without
limitation, reprogramming errors and the failure of
other systems or equipment) will not result in an Event
of Default, a Default or a material adverse effect on
the Company or the Borrower.
ARTICLE VI. Negative Covenants
During the term of this Agreement and so long
thereafter as any of the Indebtedness of the Borrower
to any of the Banks, Chase or the Administrative Agent,
including any Indebtedness for fees and expenses, shall
remain unpaid, any Letter of Credit shall remain
outstanding or the Commitments shall remain in effect,
neither the Borrower, the Company nor any of the
Guarantor Subsidiaries, without prior written consent
of the Administrative Agent, will:
6.1 Business Operations. Make or permit to
be made any material change in the character of its
business or operations.
6.2 Borrowed Money. Create, incur or suffer
to exist or assume any Indebtedness for money borrowed,
directly or indirectly, other than (i) Subordinated
Debt; and (ii) existing Indebtedness and existing
accommodations for Indebtedness as set forth on
Schedule 4.15/6.2 attached hereto.
<PAGE>
6.3 Guaranties. Guarantee, endorse or
otherwise be or become liable or contingently liable in
connection with the obligations or Indebtedness of any
other Person, including any Subsidiary, directly or
indirectly, except (i) as an endorser of instruments
for the payment of money deposited to its bank account
for collection in the ordinary course of business; and
(ii) the Company and the Borrower may guaranty IRB
obligations of Gibraltar Steel of Tennessee in the
original principal amount of $8,000,000.00, (iii) the
Company and/or the Borrower may guaranty obligations of
any Subsidiary to Third Persons not to exceed
$4,000,000.00 in the aggregate at any time, and (iv)
the Company may guaranty IRB obligations of Solar
Group, Inc. in a principal amount not to exceed
$340,000.00.
6.4 Liens. Create, incur, assume or suffer
to exist any Lien upon any of its property, assets,
income or profits, whether now owned or hereafter
acquired, or pledge or encumber any assets, except (i)
in favor of the Administrative Agent for the benefit of
the Banks; and (ii) in favor of any Bank or other third
Person as listed in Schedule 6.4. Borrower has not,
and so long as this Agreement is in effect, will not,
enter into any covenant or agreement with any other
person or entity that prohibits the granting or
existence of a lien in the personal or real property of
Borrower in favor of the Administrative Agent, as
administrative agent and for the benefit of the Banks.
6.5 Accumulated Funding Deficiency. Incur
(i) any accumulated funding deficiency within the
meaning of ERISA equal to five (5) percent or more of
Consolidated Tangible Net Worth; or (ii) any liability
of comparable size to the Pension Benefit Guaranty
Corporation.
6.6 Compliance with Law. Violate any law or
regulation, order, writ, injunction or decree of any
court or governmental instrumentality or breach any
agreement to which Borrower, Company or any Subsidiary
is subject or in default thereunder, which violation or
breach would have a material adverse effect on the
Company on a Consolidated basis.
6.7 Expansions, Mergers, Acquisitions and
Joint Ventures. Enter into any Expansion, or merge
into or consolidate with, exchange or acquire the stock
or assets of, or enter into any joint venture or
partnership with, any third Person, except (i) any
Subsidiary may merge into or consolidate with the
Company or any other Subsidiary so long as such other
Subsidiary has executed and delivered a Guaranty in
favor of the Administrative Agent for the benefit of
the Banks to the extent required by Section 3.1.d; and
(ii) the Company or any Subsidiary may enter into an
Expansion, may merge or consolidate with, acquire the
stock or assets of, or enter into a joint venture or
partnership with, any third Person if (a) the Company
and the Borrower are surviving corporations, (b)
immediately thereafter and after giving effect thereto,
<PAGE>
no Default or Event of Default exists, and (c) the
investments in such Expansions, joint ventures,
partnerships and the book value of the assets of the
third Person being merged or consolidated, together
with the purchase price of the stock or assets being
acquired, do not exceed $40,000,000.00 in the aggregate
from the date of this Agreement and for the entire
period this Credit is outstanding, and (d) the third
Person with which the Company, the Borrower or such
Subsidiary mergers, or which the Company, the Borrower
or any Subsidiary acquires, is in a business of a
character already performed by the Company, the
Borrower or such Subsidiary, as applicable, or of a
type reasonably related thereto.
6.8 Loans and Advances. Make any loans or
advances to any Person, except (i) trade credit
extended in the ordinary course of business; (ii)
advances made in the usual course of business to
officers and employees for travel and other out-of-
pocket expenses incurred by them on behalf of Borrower,
the Company or any Subsidiaries in connection with
their business; (iii) the Borrower and the Company may
advance amounts from time to time to each other or to
any Subsidiary, for working capital purposes in the
ordinary course of business and for other purposes
permitted under the other provisions of this Agreement
which would not be in violation of any of the terms or
provisions of this Agreement and (iv) advances to
Persons not in excess of $1,000,000.00 in the aggregate
at any one time outstanding.
6.9 Subsidiaries. In the case of Borrower,
organize or cause to exist any Subsidiaries (other than
those Subsidiaries listed on Schedule 4.1), unless,
upon the request of the Banks, such corporation
executes a guaranty in the form of the Guaranty
executed by each Guarantor Subsidiary pursuant to
Section 3.1.d.
6.10 Dividends. In the case of Company, upon
the occurrence of and during the existence of a Default
or an Event of Default, declare or pay dividends or
make any capital distributions.
6.11 Voting Stock. In the case of Company,
sell, convey, transfer, assign, pledge or otherwise
encumber any of the voting stock of Borrower or any
other Subsidiary to any Person.
6.12 Sale of Assets. Convey, sell, transfer,
lease or sell and lease back all or a substantial
portion of its property, assets, or business to any
other Person, except for sales of Inventory in the
ordinary course of business. For purposes of this
Section 6.12, "substantial portion" shall mean any and
all purchases or transfer prices in excess of five (5%)
percent of the Company's Tangible Net Worth on a
Consolidated basis in the aggregate in any one fiscal
year, and any transaction shall be permissible only if
no Default shall occur as a result of the transaction.
<PAGE>
6.13 Lease Rentals. Pay, in the case of the
Company on a Consolidated basis, rentals under any
operating or true lease in excess of $5,000,000.00 in
the aggregate during any fiscal year.
6.14 [Intentionally omitted]
6.15 Interest Coverage Ratio. Permit, in the
case of the Company on a Consolidated basis, the ratio
of Earnings before Taxes and Interest plus depreciation
and amortization minus Capital Expenditures (excluding
Capital Expenditures made in connection with permitted
acquisitions) to interest payable on Total Liabilities,
calculated on an annual rolling basis of four fiscal
quarters, to be less than 3.0 to 1.0 as of the last day
of any fiscal quarter.
6.16 Net Worth. Permit, in the case of the
Company on a Consolidated basis, the Net Worth (a) as
of the last day of any fiscal quarter to be less than
$120,000,000 plus 50% of Cumulative Net Income (as
defined below). Cumulative Net Income means net income
of the Company on a Consolidated basis from June 30,
1997 through the end of the fiscal quarter for which
the calculation of Net Worth is being made.
6.17 Funded Debt/EBITDA. Permit, in the case
of the Company on a Consolidated basis, (a) the ratio
of Funded Debt (as defined below) to Earnings before
Interest and Taxes plus depreciation and amortization
("EBITDA") as of the last day of any fiscal quarter, to
be greater than 4.0 to 1.0 as of any fiscal quarter end
or (b) the ratio of Senior Debt (as defined below) to
EBITDA as of the last day of any fiscal quarter from
the date hereof through September 30, 1999 to be
greater than 3.5 to 1.0, from December 31, 1999 through
September 30, 2000 to be greater than 3.25 to 1.0 or
thereafter to be greater than 3.0 to 1.0, such
calculations to be based on an annual rolling basis of
four quarters.
"Funded Debt" means debt for money borrowed which is
bearing interest. "Senior Debt" means Funded Debt
which is not Subordinated Debt. For the purposes of
calculating this covenant, upon the consummation of a
permitted acquisition, up to 12 month historical EBITDA
of the acquired entity shall be included in the
calculation of the ratio, subject to the Banks' review
and approval, in their discretion, of such acquired
entity's financial information provided, however, such
historical EBITDA shall only be included in the
calculation of Funded Debt if the applicable acquired
entity's EBITDA is not included in the Consolidated
EBITDA of the Company for the applicable month.
6.18 Current Ratio. Permit at any time, in
the case of the Company on a Consolidated basis, the
ratio of Current Assets to Current Liabilities to be
less than 2.0 to 1.0.
<PAGE>
ARTICLE VII. Default
7.1 Events of Default. The occurrence of
any one or more of the following events shall
constitute an event of default (individually, "Event of
Default," or, collectively, "Events of Default"):
(a) Nonpayment. Nonpayment after the
same becomes due whether by acceleration or otherwise
of principal of or interest on the Revolving Note or of
any fee or premium provided for hereunder.
(b) Negative Covenants. Default in the
observance of any of the covenants or agreements of the
Borrower or the Company contained in Article VI.
(c) Other Covenants. Default in the
observance of any of the covenants or agreements of the
Borrower or the Company contained in this Agreement,
other than those specified in Article VI or
Section 7.1(b) hereof, which is not remedied within
twenty (20) days after notice thereof by the
Administrative Agent to the Borrower and the Company.
(d) Voluntary Insolvency Proceedings.
If the Company or any Subsidiary (i) shall file a
petition or request for liquidation, reorganization,
arrangement, adjudication as a bankrupt, relief as a
debtor or other relief under the bankruptcy, insolvency
or similar laws of the United States of America or any
state or territory thereof or any foreign jurisdiction,
now or hereafter in effect; (ii) shall make a general
assignment for the benefit of creditors; (iii) shall
consent to the appointment of a receiver or trustee for
the Company or any Subsidiary or any of the Company's
or any Subsidiary's assets, including, without
limitation, the appointment of or taking possession by
a "custodian" as defined in the federal Bankruptcy
Code; (iv) shall make any, or send notice of any
intended, bulk sale; or (v) shall execute a consent to
any other type of insolvency proceeding (under the
federal Bankruptcy Code or otherwise) or any formal or
informal proceeding for the dissolution or liquidation
of, or settlement of claims against or winding up of
affairs of, the Company or any Subsidiary.
(e) Involuntary Insolvency Proceedings.
The appointment of a receiver, trustee, custodian or
officer performing similar functions for the Company or
any Subsidiary or any of the Company's or any
Subsidiary's assets, including, without limitation, the
appointment of or taking possession by a "custodian" as
defined in the federal Bankruptcy Code; or the filing
against the Company or any Subsidiary of a request or
petition for liquidation, reorganization, arrangement,
adjudication as a bankrupt or other relief under the
<PAGE>
bankruptcy, insolvency or similar laws of the United
States of America or any state or territory thereof or
any foreign jurisdiction, now or hereafter in effect;
or the institution against the Company or any
Subsidiary of any other type of insolvency proceeding
(under the federal Bankruptcy Code or otherwise) or of
any formal or informal proceeding for the dissolution
or liquidation of, settlement of claims against or
winding up of affairs of the Company or any Subsidiary,
and the failure to have such appointment vacated or
such filing, petition or proceeding dismissed within
ninety (90) days after such appointment, filing or
institution.
(f) Representations. If any
certificate, statement, representation, warranty or
financial statement furnished by or on behalf of the
Company or any Subsidiary pursuant to or in connection
with this Agreement (including, without limitation,
representations and warranties contained herein and in
the Guaranties) or as an inducement to the Banks to
enter into this Agreement or any other lending
agreement with the Borrower, the Company or its other
Subsidiaries shall prove to have been false in any
material respect at the time as of which the facts
therein set forth were represented, or to have omitted
any substantial contingent or unliquidated liability or
claim against the Company or any Subsidiary required to
be stated therein, or if on the date of the execution
of this Agreement there shall have been any materially
adverse change in any of the facts disclosed by any
such statement or certificate, which change shall not
have been disclosed by the Company or the Borrower to
all of the Banks at or prior to the time of such
execution.
(g) Other Indebtedness and Agreements.
Nonpayment by the Borrower, the Company or any other
Subsidiary of any Indebtedness (other than as evidenced
by the Revolving Note) owing by the Borrower, the
Company or any other Subsidiary when due (or, if
permitted by the terms of the applicable document,
within any applicable grace period), whether such
Indebtedness shall become due by scheduled maturity, by
required prepayment, by acceleration, by demand or
otherwise, or failure to perform any term, covenant or
agreement on its part to be performed under any
agreement or instrument (other than this Agreement and
the Guaranties) evidencing or securing or relating to
any Indebtedness owing by the Borrower, the Company or
any other Subsidiary when required to be performed if
the effect of such failure is to accelerate or to
permit the holder to accelerate the maturity of such
Indebtedness.
(h) Judgments. If any judgment or
judgments in excess of $500,000.00 (other than any
judgment for which it is fully insured) against the
Borrower, the Company or any other Subsidiary remains
unpaid, unstayed on appeal, undischarged, unbonded or
<PAGE>
undismissed for a period of thirty (30) days after
entry thereof.
(i) Pension Default.
i. The Company or any of its
Subsidiaries (or any officer or director thereof) shall
engage in any "prohibited transaction" (as defined in
Section 406 of ERISA or Section 4975 of the Code)
involving any Plan,
ii. any "accumulated funding
deficiency" (as defined in Section 302 of ERISA), shall
exist with respect to any Plan,
iii. with respect to any
Multiemployer Plan, the Company or any Commonly
Controlled Entity fails to make a contribution required
to be made thereto, or withdraws therefrom, where in
either event the liability of the Company or such
Commonly Controlled Entity is in excess of $250,000.00,
iv. a Reportable Event shall occur
with respect to, or proceedings shall commence to have
a trustee appointed, or a trustee shall be appointed,
to administer or to terminate, any Plan which is not a
Multiemployer Plan, which Reportable Event or
institution of proceedings is, in the reasonable
opinion of any Bank, likely to result in the
termination of such Plan for purposes of Title IV of
ERISA and, in the case of a Reportable Event, the
continuance of such Reportable Event unremedied for
ten (10) days after notice of such Reportable Event
pursuant to Section 4043(a), (c) or (d) of ERISA is
given or the continuance of such proceedings for ten
(10) days after commencement thereof, as the case may
be,
v. any Plan shall terminate for
purposes of Title IV of ERISA, or
vi. any other similar event or
condition shall exist which, together with all other
events or conditions in clauses i. through vi. above,
if any, would subject the Company or any of its
Subsidiaries to any tax, penalty or other liabilities
under ERISA in the aggregate material in relation to
the business, operations, property or financial or
other condition of the Company and its Subsidiaries
taken as a whole.
(j) Guaranty. The occurrence of an
event of default or breach of any term, covenant or
provision of any Guaranty.
(k) Change of Control. Any Person or
related Persons (other than members of the Kenneth
Lipke family, their heirs or estates or trusts for the
benefit of members of the Kenneth Lipke family) shall
own 55% or more of outstanding capital stock of the
<PAGE>
Company or a sufficient number of the shares of the
outstanding capital stock of the Company to elect a
majority of the Company's board of directors.
7.2 Effects of an Event of Default.
(a) Upon the happening of one or more
Events of Default (except a default with respect to the
Borrower under either Section 7.1(d) or 7.1(e) hereof),
the Administrative Agent, shall upon the written
direction of the Majority Banks and by notice to the
Borrower declare the principal of the Revolving Note
then outstanding to be immediately due and payable,
together with all interest thereon and fees and
expenses accruing under this Agreement and/or declare
the Commitments of the Banks to be canceled. Upon any
acceleration of the principal of the Revolving Note,
the then outstanding balance shall become immediately
due and payable without presentation, demand or further
notice of any kind to the Borrower. Upon any
cancellation of the Commitments set forth in this
Agreement, any obligations the Banks may have to make
Advances or to issue Letters of Credit shall be
immediately canceled.
(b) Upon the happening of one or more
Events of Default under Section 7.1(d) or 7.1(e) hereof
with respect to the Borrower, the Commitments shall be
canceled immediately, automatically and without notice,
and the Revolving Note then outstanding shall become
immediately due and payable without presentation,
demand or notice of any kind to the Borrower.
(c) Upon the happening of any Event of
Default, the Administrative Agent shall then exercise
such rights and remedies specified under this
Agreement, the Revolving Note and the Guaranties or
under applicable law which it, but only with the
written consent of the Majority Banks, deems
appropriate under the circumstances in order to enforce
such documents.
(d) Upon the happening of any Event of
Default, the Administrative Agent may, and upon the
request of the Majority Banks shall, require the
Borrower to provide to the Administrative Agent for the
benefit of the Banks cash collateral in an amount equal
to face amount of issued and unexpired Letters of
Credit available for drawings.
(e) Upon the happening of any Event of
Default, the principal balances of any Swingloans shall
be repaid by the making of an Advance by the Banks in
an amount equal to the unpaid principal balances of the
Swingloans, except in the case of the occurrence of an
Event of Default under subsection 7.1(d) or 7.1(e)
after which each of the Banks other than Chase shall
purchase a participating interest in the unpaid
principal balances of the Swingloans equal to its
Percentage.
<PAGE>
ARTICLE VIII. Relationship of Chase and the
Administrative Agent and the Banks
8.1 Appointment and Authorization. Each
Bank hereby appoints The Chase Manhattan Bank as the
Administrative Agent to act as Administrative Agent in
connection with the administration of the Credit and
the Guaranties and for such purpose, subject to
specific restrictions herein including Sections 7.2 and
8.3, irrevocably authorizes the Administrative Agent to
take such action and to exercise such rights, powers
and discretions as are specifically delegated to the
Administrative Agent in this Agreement and the
Guaranties, together with all rights, powers and
discretions as are reasonably incidental thereto,
including, without limitation, the power to execute
financing or similar statements or notices and other
related documents relating to the transactions
contemplated by the Guaranties. The Administrative
Agent may perform any of its functions and duties under
this Agreement or the Guaranties for the benefit of all
the Banks by or through any agents or any of its
directors, officers or employees. In performing any of
its functions and duties under this Agreement or the
Guaranties, the Administrative Agent shall not be
deemed to be acting as a trustee for, or partner of,
any Bank or to have assumed any relationship of agency,
trust or partnership with or for the Borrower. In
administering the Letters of Credit, Chase will use the
same degree of care and skill as it exercises in the
administration of letters of credit in which no
participations are sold, but it shall not be under any
liability to any Bank except for its own gross
negligence or willful misconduct and except as stated
in Section 2.2(d). Chase agrees that it will honor
each drawing under a Letter of Credit in strict
compliance with the requirements of the Letter of
Credit under which it is drawn.
8.2 No Other Duties. Neither Chase nor the
Administrative Agent shall have any duties or
obligations other than those expressly provided for in
this Agreement and the Guaranties, and neither Chase,
the Administrative Agent, nor any of their directors,
officers, employees or agents, shall be liable for any
action taken or omitted to be taken in connection with
this Agreement, the Guaranties, and other documents
related thereto, the negotiation, preparation or
execution thereof, or in connection with the
syndication, implementation or administration of the
Credit, the Guaranties, unless directly resulting from
Chase's, the Administrative Agent's, or such
directors', officers', employees' or agents' gross
negligence or willful misconduct. The duties of the
Administrative Agent shall be mechanical and
administrative in nature; the Administrative Agent
shall be responsible to all the Banks for the filing
and refiling of statements to perfect and to continue
the perfection of the Security Interests; the
Administrative Agent shall not, by reason of this
Agreement or the Guaranties, have a fiduciary
relationship in respect of any Bank; and nothing in
<PAGE>
this Agreement or the Guaranties, expressed or implied,
is intended or shall be construed to impose upon Chase
or the Administrative Agent any obligations in respect
of this Agreement or any document in connection
herewith or the Guaranties except as expressly set
forth herein in such documents and this Agreement.
8.3 Copies and Notice of Event of Default or
Default. The Administrative Agent shall (i) promptly
forward to each Bank a copy of any notice or document
received by the Administrative Agent from the Borrower
pursuant to this Agreement; (ii) promptly notify each
Bank of the occurrence of any Event of Default or
Default of which the Administrative Agent has actual
knowledge; and (iii) consult with and secure the
written consent of the Majority Banks with respect to
the enforcement of this Agreement, the Revolving Note
and the Guaranties.
8.4 Certain Rights of Chase and the
Administrative Agent.
(a) If Chase or the Administrative
Agent shall request instructions from the Majority
Banks with respect to any act or action (including
failure to act) in connection with this Agreement, the
Guaranties or any other document related thereto, Chase
and the Administrative Agent shall be entitled to
refrain from such act or taking such action unless and
until it shall have received instructions from the
Majority Banks; and neither Chase nor the
Administrative Agent shall incur liability to any
Person by reason of so refraining. Chase and the
Administrative Agent shall be fully justified in
failing or refusing to take any action hereunder or
under this Agreement, the Guaranties, or any document
related thereto (i) if such action would, in its
opinion, be contrary to law or the terms of this
Agreement, the Guaranties, or any document related
thereto, (ii) if it shall not receive such advice or
concurrence of the Majority Banks as it deems
appropriate in accordance with the terms hereof, or
(iii) if it shall not first be indemnified to its
reasonable satisfaction against any and all liability
and expense which may be incurred by it by reason of
taking or continuing to take any such action. Without
limiting the foregoing, no Bank shall have any right of
action whatsoever against the Administrative Agent as a
result of the Administrative Agent acting or refraining
from acting hereunder, under the Guaranties, or under
any document related thereto, in accordance with the
instructions of the Majority Banks.
(b) Chase and the Administrative Agent
may, without liability to the Borrower or any Bank,
(i) rely, and shall be fully protected in relying, upon
any Note, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram,
telecopy, telephone notice, telex or teletype message,
statement, order or other document or conversation
believed by Chase or the Administrative Agent to be
<PAGE>
genuine and correct and to have been signed, sent or
made by the Person or Persons by whom it purports to
have been communicated or signed and (ii) employ in
Administrative Agent's sole discretion and rely on the
advice and opinions received by them from any
professional adviser, including, without limitation,
legal counsel, independent accountants or other
experts, whether or not such professional adviser was
selected by the Administrative Agent, and the Borrower
and each Bank hereby waives any claim or action it may
have against the Administrative Agent or Chase arising
out of or resulting from such employment or reliance,
except in the case of Chase's or the Administrative
Agent's gross negligence or willful misconduct.
(c) All moneys realized by the
Administrative Agent from any payment or other recovery
from the Borrower, the Company or any Subsidiary from
any of the Guaranties or otherwise shall be applied by
the Administrative Agent against the following in
following priority: first, to costs and expenses of
Chase, the Administrative Agent or any Bank which are
reimbursable by the Borrower or otherwise pursuant to
this Agreement and the Revolving Note; second, to
interest on the Revolving Note and fees payable to the
Banks and the Administrative Agent pursuant to this
Agreement; third, to the unpaid principal balances of
the Revolving Note and the outstanding unreimbursed
face amounts of any Letters of Credit; and fourth, any
remaining moneys shall be paid over to such other
Person as is entitled thereto.
8.5 Waiver of Liability of Administrative
Agent. The Administrative Agent shall not have any
liability or, as the case may be, any duty or
obligation:
(a) To the Borrower or the Company on
account of any failure of any Bank other than the
Administrative Agent to perform, or the delay of any
Bank other than the Administrative Agent in the
performance of, any of its respective obligations under
this Agreement, the Guaranties or any of the other
documents in connection herewith;
(b) To any Bank on account of any
failure or delay in performance by either the Borrower,
the Company or any Subsidiary of any of its obligations
under this Agreement, the Guaranties or any of the
other documents in connection herewith unless such
failure or delay is a result of the Administrative
Agent's gross negligence or willful misconduct;
(c) To any Bank for (i) the accuracy of
any written or oral statements furnished or made by the
Borrower, the Company or by any Person (including the
Administrative Agent) on behalf of the Borrower or the
Company in connection with the Credit, (ii) the
accuracy of any representation, warranty or statement
made by the Borrower in or pursuant to this Agreement,
<PAGE>
the Guaranties or any of the other documents in
connection herewith, or (iii) the legality, validity,
effectiveness, enforceability or sufficiency of this
Agreement, the Guaranties, any other document in
connection herewith, or any other document referred to
herein;
(d) To any Bank to provide either
initially or on a continuing basis (except as expressly
required by Section 8.3 and 8.6 hereof) any information
with respect to the Borrower or its condition, or for
analyzing or assessing or omitting to analyze or assess
the status, creditworthiness or prospects of the
Borrower, the Company or any of its Subsidiaries;
(e) To any Bank to investigate whether
or not any Default or Event of Default has occurred
(and the Administrative Agent may assume that, until
Administrative Agent shall have actual knowledge or
shall have received notice from any Bank, the Company
or the Borrower to the contrary, no such Default or
Event of Default has occurred);
(f) To any Bank to account for any sum
or profit or any property of any kind received by
Administrative Agent arising out of any present or
future banking or other relationship with the Borrower
or with any other Person except the relationship
established pursuant to this Agreement or the
Guaranties;
(g) To any Bank to disclose to any
Person any information relating to the Borrower, the
Company or any other Subsidiary received by
Administrative Agent if, in Administrative Agent's
determination (such determination to be conclusive),
such disclosure would or might constitute a breach of
any law or regulation or be otherwise actionable by
suit against Administrative Agent by the Borrower or
any other Person;
(h) Other than as expressly required by
this Agreement or as expressly agreed to by the Banks,
to take any action or refrain from taking any action;
and
(i) To commence any legal action or
proceeding arising out of or in connection with this
Agreement or the Guaranties until Administrative Agent
shall have been indemnified by the Borrower or by the
Banks according to their Percentages to Administrative
Agent's satisfaction against any and all costs, claims
and expenses (including, but not limited to, attorneys'
fees and expenses) in respect of such legal action or
proceeding.
8.6 Non-Reliance on Administrative Agent and
Other Banks. Each Bank expressly acknowledges that the
Administrative Agent has not made any representations
or warranties to such Bank and that no act by the
Administrative Agent hereinafter taken, including any
review of the affairs of the Borrower, shall be deemed
<PAGE>
to constitute any representation or warranty by the
Administrative Agent to any Bank. Each Bank represents
to the Administrative Agent that it has, independently
and without reliance upon the Administrative Agent or
any other Bank, and based on such documents and
information as it has deemed appropriate, made its own
appraisal of and investigation into the financial
condition, creditworthiness, affairs, status and nature
of the Borrower and the Company, and made its own
decision to enter into this Agreement, and each Bank
hereby releases the Administrative Agent from any and
all liability to such Bank in connection with the
Administrative Agent's investigation and appraisal of
the Borrower's or the Company's financial affairs,
financial condition, and creditworthiness. Each Bank
also represents that it will, independently and without
reliance upon the Administrative Agent or any other
Bank, and based on such documents and information as it
shall deem appropriate at the time, continue to make
its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement or the
Guaranties and to make such investigation as it deems
necessary to inform itself as to the status and
affairs, financial or otherwise, of the Borrower and
the Company. The Administrative Agent shall not be
required to keep itself informed as to the performance
or observance by the Borrower and the Company of this
Agreement, the Guaranties or any other document
referred to or provided for herein or to inspect the
properties or books of the Borrower, the Company or any
of its other Subsidiaries. Except for notices,
reports, and other documents and information expressly
required to be furnished to each of the Banks by the
Administrative Agent under this Agreement or the
Guaranties, the Administrative Agent shall have no duty
or responsibility to provide any Bank with any credit
or other information concerning the affairs, financial
condition or business of the Borrower, the Company or
any of its other Subsidiaries which may come into the
possession of the Administrative Agent.
8.7 Indemnification. Each Bank agrees to
indemnify Chase, in its capacity as issuer of Letters
of Credit and the Administrative Agent in its capacity
as such (to the extent not reimbursed by the Borrower
or the Company), as well as its directors, officers,
employees or agents, ratably according to its
respective Percentage from and against any and all
liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever
(including, without limitation, those expenses
specified in Article IX hereof which may at any time
(including, without limitation, at any time following
the payment of the Revolving Note) be imposed on,
incurred by or asserted against Chase or the
Administrative Agent, its directors, officers,
<PAGE>
employees or agents, in any way relating to or arising
out of this Agreement or the Guaranties or any action
taken or omitted by the Administrative Agent, its
directors, officers, employees or agents, under or in
connection with any of the foregoing; provided,
however, that no Bank shall be liable for the payment
of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements to the extent that
they result from the Administrative Agent's or Chase's
gross negligence or willful misconduct. The agreements
in this Section 8.7 shall survive the payment of the
Revolving Note, the expiration or other termination of
the Letters of Credit and the termination of this
Agreement and the Guaranties.
8.8 Administrative Agent in Its Individual
Capacity. The Administrative Agent in its individual
capacity and its affiliates may make loans to, accept
deposits from and generally engage in any kind of
business with the Borrower, the Company and any of its
other Subsidiaries as though the Administrative Agent
were not the Administrative Agent hereunder.
8.9 Successor Administrative Agent. The
Administrative Agent may resign at any time by giving
written notice thereof to all the Banks, the Borrower,
and the Company. Upon any such resignation, Fleet Bank
shall have the right to become the successor
Administrative Agent. If, however, within ten (10)
days upon receiving notice of the Administrative
Agent's resignation Fleet Bank does not accept the
position as successor Administrative Agent by giving
written notice thereof to all the Banks, the Borrower,
and the Company, then the Majority Banks shall have the
right to appoint a successor Administrative Agent other
than Fleet Bank. If no successor Administrative Agent
shall have been so appointed by the Majority Banks and
shall have accepted such appointment within thirty (30)
days after the retiring Administrative Agent's giving
of notice of resignation, then the retiring
Administrative Agent may, on behalf of all the Banks,
appoint a successor Administrative Agent. Upon the
acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed
to and become vested with all the rights, powers,
privileges, duties and obligations of the retiring
Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and
obligations thereafter under this Agreement.
Administrative Agent shall continue to perform its
duties hereunder until a successor Administrative Agent
shall have been appointed and accepts such appointment
in writing. After any retiring Administrative Agent's
resignation, the provisions of this Article VIII,
including, without limitation, the indemnity provisions
of Section 8.7 hereof, 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.
8.10 Benefit of Article VIII. The provisions
of this Article VIII are intended solely for the
<PAGE>
benefit of Chase, the Administrative Agent and all the
Banks and may be modified by mutual agreement of Chase,
the Administrative Agent and all of the Banks. The
Borrower, the Company and its other Subsidiaries shall
not be entitled to rely on any such provisions or
assert any such provisions in a claim, or as a defense,
against the Administrative Agent or any Bank.
ARTICLE IX. Indemnification - Costs and Expenses
9.1 Indemnification. The Borrower and the
Company agree to indemnify, defend, and hold harmless
Chase, the Administrative Agent and each of the Banks
from and against any and all liabilities, claims,
damages, penalties, expenditures, losses, or charges,
including, but not limited to, all costs of
investigation, monitoring, legal representation,
remedial response, removal, restoration or permit
acquisition, which may now or in the future be
undertaken, suffered, paid, awarded, assessed, or
otherwise incurred by Chase, the Administrative Agent,
any of the Banks or any other Person as a result of the
presence of, Release of or threatened Release of
Hazardous Substances on, in, under or near the property
owned or operated by the Company or any Subsidiary.
The liability of the Borrower and the Company under the
covenants of this Section and Article II are not
limited by any exculpatory provisions in this Agreement
or any other documents securing the Credit and shall
survive repayment of the Revolving Note, expiration or
other termination of the Letters of Credit or any
transfer or termination of this Agreement regardless of
the means of such transfer or termination.
9.2 Expenses. The Borrower shall reimburse
the Administrative Agent and each of the Banks promptly
for all of their respective reasonable counsel fees
incurred in connection with this Agreement and with any
indebtedness subject hereto and for any taxes, filing
fees, recording fees and appraisal fees which the
Administrative Agent may be required to pay in
connection with the execution and delivery of this
Agreement, the Revolving Note and the Guaranties. The
Borrower shall further reimburse the Administrative
Agent and each of the Banks promptly for any reasonable
expenses, including counsel fees and out-of-pocket
expenses, incident to the monitoring, examination and
administration of the collateral subject to the
Security Agreements during the term of this Agreement
and to the enforcement of any provision of this
Agreement, the Revolving Note, the Guaranties or any
other document executed in connection with this
Agreement. Without limiting the Borrower's obligation
to reimburse the Administrative Agent and each of the
Banks pursuant to this Section 9.2, the Borrower hereby
irrevocably authorizes the Banks to make Advances to
the Borrower and to use the proceeds thereof to pay any
amount owed by the Borrower under this Section 9.2 upon
the failure of the Borrower to make such payment, and
the Administrative Agent agrees to notify the Borrower
<PAGE>
of the making of such Advances. Any such Advances
shall be made in the minimum amount necessary.
ARTICLE X. Miscellaneous
10.1 Amendments and Waivers. No
modification, rescission, waiver, release or amendment
of any provision of this Agreement or any Security
Documents shall be made except by a written agreement
subscribed by duly authorized officers of the Borrower,
the Company and the Administrative Agent with the
consent of the Majority Banks; provided, however, no
such amendment, modification or waiver:
(a) which would modify any requirement
that any particular action to be taken hereunder by or
on behalf of the Banks shall be taken by all Banks or
by the Majority Banks so as to reduce the number of
Banks required to take such action shall be effective
unless consented to by each Bank;
(b) which would amend this Section or
which would increase any Bank's Commitment or
Percentage, reduce the Facility Fee, extend the
Termination Date or release any of the Guaranties shall
be made without the consent of each Bank;
(c) which would extend the due date
for, or reduce the amount of, any payment or prepayment
of principal of or interest on any note (or reduce the
principal amount of or rate of interest on any note)
shall be made without the consent of each Bank; or
(d) which would affect adversely the
interests, rights or obligations of the Administrative
Agent shall be made without the consent of the
Administrative Agent.
10.2 Delays and Omissions. No course of
dealing and no delay or omission by the Administrative
Agent or any of the Banks in exercising any right or
remedy hereunder or with respect to any indebtedness of
the Borrower to any of the Banks shall operate as a
waiver thereof or of any other right or remedy, and no
single or partial exercise thereof shall preclude any
other or further exercise thereof or the exercise of
any other right or remedy. All rights and remedies of
the Administrative Agent and the Banks hereunder are
cumulative.
10.3 Participations and Assignments. The
Borrower shall not assign or otherwise transfer any of
the rights of the Borrower pursuant to this Agreement
without the prior written consent of all the Banks, and
any such assignment or other transfer without such
prior written consent shall be void. No consent by any
Bank to any such assignment or other transfer shall
release the Borrower from any indebtedness, liability
or obligation of the Borrower pursuant to this
<PAGE>
Agreement. No Bank shall assign or otherwise transfer,
or grant any participation in, any indebtedness,
liability or obligation of the Borrower to such Bank
pursuant to this Agreement or any of the rights and
remedies of such Bank pursuant to this Agreement
without the prior written consent of the Borrower and
the Administrative Agent which consent shall not be
unreasonably withheld, except
(i0 any Bank may assign or otherwise transfer, or grant
participations in, any indebtedness, liability or
obligation of the Borrower to any other Bank or to any
Affiliate of such Bank, and (ii) any Bank may execute
an assignment in favor of a Replacement Bank as
contemplated by Section 2.15 hereof.
10.4 Successors and Assigns. The Borrower,
Company, Subsidiary, Administrative Agent, Chase and
Bank as such terms are used herein shall include the
legal representatives, successors and assigns of those
parties.
10.5 Notices. All notices, requests and
demands to or upon the respective parties hereto to be
effective shall be in writing, unless otherwise
expressly provided herein, and shall be deemed to have
been given or made when delivered by hand or by
Facsimile (with a copy by regular mail), three (3)
Business Days after being delivered to a courier for
overnight delivery or five (5) Business Days after
being deposited in the first class United States mail,
addressed as follows, or to such other address as may
be hereafter notified by the respective parties hereto:
To the Borrower: Gibraltar Steel Corporation
of New York
3556 Lakeshore Road
Buffalo, New York 14219
Attn: Walter Erazmus
Facsimile No. (716) 826-1589
Telephone No. (716) 826-6500
To the Company: Gibraltar Steel Corporation
3556 Lakeshore Road
Buffalo, New York 14219
Attn: Walter Erazmus
Facsimile No. (716) 826-1589
Telephone No. (716) 826-6500
To Chase or the
Administrative Agent: The Chase Manhattan Bank
2300 Main Place Tower
Buffalo, New York 14202
Attn: Robert J. McArdle
Facsimile No.(716) 843-4939
Telephone No.(716) 858-1418
To any Bank: The address listed on Schedule
1 of this Agreement.
<PAGE>
10.6 Governing Law. This Agreement, the
transactions described herein and the obligations of
the parties hereto shall be construed under, and
governed by, the laws of the State of New York, without
regard to its conflict of laws rules which would make
the laws of another jurisdiction applicable.
10.7 Counterparts. This Agreement may be
executed in any number of counterparts and by the
Administrative Agent, the Banks, the Borrower and the
Company on separate counterparts, each of which when so
executed and delivered shall be an original, but all
such counterparts shall together constitute one and the
same Agreement.
10.8 Titles. Titles to the sections of this
Agreement are solely for the convenience of the
parties, and are not an aid in the interpretation of
this Agreement or any part thereof.
10.9 Inconsistent Provisions. The terms of
this Agreement and any related agreements, instruments
or other documents shall be cumulative except to the
extent that they are specifically inconsistent with
each other, in which case the terms of this Agreement
shall prevail.
10.10 JURY TRIAL WAIVER. EACH OF THE PARTIES
HERETO WAIVES ANY RIGHT TO TRIAL BY JURY WHICH IT MAY
HAVE IN ANY ACTION OR PROCEEDING, IN LAW OR EQUITY, IN
CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS
RELATED HERETO.
10.11 CONSENT TO JURISDICTION. THE BORROWER,
THE COMPANY, THE ADMINISTRATIVE AGENT AND THE BANKS
AGREE THAT ANY ACTION OR PROCEEDING TO ENFORCE OR
ARISING OUT OF THIS AGREEMENT MAY BE COMMENCED IN THE
SUPREME COURT OF NEW YORK IN ERIE COUNTY, OR IN THE
DISTRICT COURT OF THE UNITED STATES IN THE WESTERN
DISTRICT OF NEW YORK, AND THE BORROWER, THE COMPANY,
THE ADMINISTRATIVE AGENT AND THE BANKS WAIVE PERSONAL
SERVICE OF PROCESS AND AGREE THAT A SUMMONS AND
COMPLAINT COMMENCING AN ACTION OR PROCEEDING IN ANY
SUCH COURT SHALL BE PROPERLY SERVED AND SHALL CONFER
PERSONAL JURISDICTION IF SERVED BY REGISTERED OR
CERTIFIED MAIL TO THE BORROWER OR THE ADMINISTRATIVE
AGENT, AS APPROPRIATE, OR AS OTHERWISE PROVIDED BY THE
LAWS OF THE STATE OF NEW YORK OR THE UNITED STATES.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be signed by their duly
authorized officers, all on the 16th day August, 1999.
BORROWER:
GIBRALTAR STEEL CORPORATION OF NEW YORK
By: /s/ John E. Flint
John E. Flint
Vice President
COMPANY:
GIBRALTAR STEEL CORPORATION
By: /s/ John E. Flint
John E. Flint
Vice President
ADMINISTRATIVE AGENT:
THE CHASE MANHATTAN BANK,
as Administrative Agent
By: /s/ Robert J. McArdle
Robert J. McArdle
Vice President
BANKS:
THE CHASE MANHATTAN BANK
By: /s/ Robert J. McArdle
Robert J. McArdle
Vice President
<PAGE>
FLEET NATIONAL BANK
By: /s/ John C. Wright
Name: John C. Wright
Title: Vice President
MELLON BANK, N.A.
By: /s/ Edward Kloeskery
Name: Edward Kloeskery
Title: Vice President
BANK OF AMERICA
By: /s/ Thomas Blake
Name: Thomas Blake
Title: Managing Director
KEYBANK NATIONAL ASSOCIATION
By: /s/ Mark F. Wachowiak
Name: Mark F. Wachowiak
Title:Assistant Vice President
HSBC BANK USA
By: /s/ William H. Graser
Name: William H. Graser
Title: Vice President
<PAGE>
SCHEDULE 1
Banks:
Name; Notice Address;
Percentage Commitment LIBOR Lending Office
25.000% $65,000,000.00 THE CHASE MANHATTAN BANK
Notice Address:
2300 Main Place Tower
Buffalo, New York 14202
Facsimile No. (716) 843-4939
Telephone No. (716) 858-1418
LIBOR Lending Office:
Same as above.
19.230% $50,000,000.00 FLEET NATIONAL BANK
Notice Address:
10 Fountain Plaza, 9th Fl.
Buffalo, New York 14202
Facsimile No. (716) 847-4491
Telephone No. (716) 847-7332
LIBOR Lending Office:
Same as above.
15.385% $40,000,000.00 MELLON BANK, N.A.
Notice Addresses:
Two Mellon Bank Center
Pittsburgh, Pennsylvania 15259
Facsimile No. (412) 234-9010
Telephone No. (412) 234-1098
and
1128 State Street
Erie, Pennsylvania 16501
Facsimile No. (814) 453-7273
Telephone No. (814) 453-7275
LIBOR Lending Office:
Same as above.
<PAGE>
9.615% $25,000,000.00 BANK OF AMERICA
Notice Addresses:
Carole Greene
Mail Code NC1-001-15-03
101 North Tryon Street
Charlotte, NC 28255
Facsimile No. (704) 386-8694
Telephone No. (704) 386-8389
with a copy to:
Thomas J. Kane
767 Fifth Avenue, 5th Floor
New York, New York 10153-0083
Facsimile No. (212) 751-6909
Telephone No. (212) 407-5421
LIBOR Lending Office:
Carole Greene
Mail Code NC1-001-15-03
101 North Tryon Street
Charlotte, NC 28255
Facsimile No. (704) 386-8694
Telephone No. (704) 386-8389
15.385% $40,000,000 KEYBANK NATIONAL ASSOCIATION
Notice Address:
50 Fountain Plaza, 17th Floor
Buffalo, New York 14202
Facsimile No. (716) 847-7897
Telephone No. (716) 847-2314
LIBOR Lending Office:
50 Fountain Plaza, 17th Floor
Buffalo, New York 14202
Facsimile No. (716) 847-7897
Telephone No. (716) 847-2314
15.385% $40,000,000 HSBC
BANK USA
Notice Address
William H. Graser
One HSBC Center, Lobby Level
Buffalo, New York 14203
Facsimile No. (716) 841-0384
Telephone No. (716) 841-2556
<PAGE>
LIBOR Lending Office:
Same as above.
<PAGE>
SCHEDULE 3.1.d
Subsidiaries Required to Execute and Deliver Guaranties
The following is a list of the subsidiaries
of Gibraltar Steel Corporation. The names of
indirectly owned subsidiaries are indented under the
names of their respective parent corporations:
Gibraltar Steel Corporation of New York New York
Wm. R. Hubbell Steel Corporation Illinois
Carolina Commercial Heat Treating Nevada
Gibraltar Strip Steel, Inc. Delaware
Integrated Technologies International, Ltd. Delaware
Cleveland Pickling, Inc. Delaware
Gibraltar Steel Corporation of Tennessee Tennessee
Southeastern Metals Manufacturing Company, Inc. Florida
Solar Group, Inc.
Delaware
Appelton Supply, Inc.
Delaware
United Steel Products Company Minnesota
Harbor Metal Treating Co. Michigan
Harbor Metal Treating of Indiana, Inc. Michigan
Rock River Heat Treating Company Michigan
K&W Metal Fabricators, Inc. Colorado
Fabritech Metal Forming Equipment LLC Colorado
Hi-Temp Acquisition Corp. Delaware
<PAGE>
SCHEDULE 4.11
Subsidiaries
The following is a list of the subsidiaries
of Gibraltar Steel Corporation. The names of
indirectly owned subsidiaries are indented under the
names of their respective parent corporations:
Gibraltar Steel Corporation of New York New York
Wm. R. Hubbell Steel Corporation Illinois
Carolina Commercial Heat Treating, Inc. Nevada
Southeastern Metals Manufacturing Company, Inc. Florida
Gibraltar Strip Steel, Inc. Delaware
Integrated Technologies International, Ltd. Delaware
Cleveland Pickling, Inc. Delaware
Gibraltar Steel Corporation of Tennessee Tennessee
Solar Group, Inc. Delaware
Appelton Supply, Inc. Delaware
United Steel Products Company Minnesota
Harbor Metal Treating Co. Michigan
Harbor Metal Treating of Indiana, Inc. Michigan
Rock River Heat Treating Company Michigan
K&W Metal Fabricators, Inc. Colorado
Fabritech Metal Forming Equipment LLC Colorado
Hi-Temp Acquisition Corp. Delaware
<PAGE>
SCHEDULE 4.15/6.2
Permitted Indebtedness
1. The Borrower has a lease facility with The Chase
Manhattan Bank in the maximum amount of One
Million Dollars ($1,000,000.00), secured by a
first Lien on the equipment leased.
2. Industrial Development Revenue Bond in the
original principal amount of $8,000,000.00 held by
Fleet Bank and issued for the benefit of Gibraltar
Steel Corporation of Tennessee.
3. Indebtedness of the Company, the Borrower or any
Subsidiary owing to third Persons from time to
time in an aggregate principal amount not to
exceed $3,000,000.00 in the aggregate at any one
time.
4. The Borrower may enter into, from time to time,
various interest rate swap, cap and other
arrangements with one or more of the Banks not to
exceed one-half of the outstanding principal
amount of Advances at any one time.
5. The Borrower enters into various foreign exchange
Contracts offered by Chase having a maximum daily
delivery risk of $1,000,000.00.
<PAGE>
SCHEDULE 4.18
Environmental Matters
Gibraltar Steel Corporation of New York has been
identified as a potentially responsible person (PRP) at
3 sites designated as Superfund Sites by the U.S.
Environmental Protection Agency:
1. Brant New York Site: Several years ago,
Gibraltar delivered waste oil for disposal to Booth Oil
Company in Brant. Booth Oil sold certain waste oil to
the Wide Beach Homeowners Association for use on dirt
parking lots. Allegedly, some of the oil sold by Booth
contained PCBs, and the EPA undertook a clean up
operation. On September 13, 1989, following the clean
up, Gibraltar was served with a demand letter by the
EPA seeking reimbursement of a portion of the
$2,262,000.00 spent on clean up costs. On October 16,
1989, the EPA sued a number of parties in Federal Court
to recover its response costs. Gibraltar was not named
as a defendant. Certain parties settled with the EPA
in January, 1993. To date, no action has been taken by
the EPA or any defendant to name Gibraltar as a party
to the litigation.
2. Notice of Violation from the New York State
Department of Environmental Conservation and fine of
$5,000 dated August 8, 1997.
<PAGE>
SCHEDULE 6.4
Liens
[Borrower to Revise]
U.S.X. Corporation filed a financing statement
with the Erie County Clerk, document #013817 on October
4, 1990, providing notice that iron and steel sheet
products inventory delivered by U.S.X. Corporation
under consignment and located at the Integrated
Terminals Facility operated by Integrated Technologies
International, Ltd. in Lackawanna, New York is the
property of U.S.X. Corporation.
On October 3, 1990, U.S.X. Corporation filed a
financing statement with the New York Secretary of
State, file No. 212373, providing the same notice as
its filing with the Erie County Clerk.
Bethlehem Steel Corp. filed a UCC-1 financing
statement in the Erie County Clerk's Office, document
#001205, on January 29, 1991, providing notice that
steel sheets (which may be in coil form) delivered by
Bethlehem Steel Corp. and stored at Integrated
Technologies International, Ltd. facility in
Lackawanna, New York is the property of Bethlehem Steel
Corp.
On January 28, 1991, Bethlehem Steel Corp. filed a
UCC-1 financing statement with the New York Secretary
of State, providing the same notice as its filing with
the Erie County Clerk's Office concerning inventory
delivered by Bethlehem Steel Corp. and stored at the
Lackawanna facility of Integrated Technologies
International, Ltd.
Bethlehem Steel Corp. filed a UCC-1 financing
statement, file no. 012664, with the Erie County
Clerk's on September 12, 1990, providing notice that
steel sheets delivered by Bethlehem Steel Corp. to the
Metals Division on Military Road in Tonawanda is the
property of Bethlehem, and not of Gibraltar.
Olin Corporation filed a UCC-1 financing
statement, file no. AH 0078910 on November 9, 1992 with
the Ohio Secretary of State against Gibraltar Strip
Steel, Inc. claiming an interest in "Brass Mill
Products," including sheet, strip, rod and tube
inventory, owned by Olin Corporation and held for
processing by Gibraltar Strip, Inc. in an aggregate
amount not to exceed $300,000.00 at any one time.
Filings by Fleet Bank of New York in Erie County
Clerk's Office on June 28, 1994, in Book 12, Page 1083,
Book 12, Page 1081 and Book 12, page 1077, covering
inventory accounts, insurance covering inventory,
records and rights as seller of goods and inventory.
<PAGE>
Comparable state filings as above filed on June
22, 1994, with the Secretary of State of New York,
Number 127964 and Number 127966 on June 22, 1994.
Filing by Fleet Bank of New York in Erie County
Clerk's Office on June 28, 1994, in Book 12, Page 1067
covering building materials, equipment, condemnation
awards, casualty insurance proceeds, and business
interruption proceeds.
AK Steel Corporation filed a financing statement
with the New York Secretary of State, Document No.l
092559, on May 9, 1994, assigned to the Dai-Ichi Kangyo
Bank Limited, New York Branch as collateral agent,
providing notice of its interest in inventory delivered
to Gibraltar Steel, Inc. for processing, safe keeping
and storage.
Filing by EMC Corporation with New York Secretary
of State on September 9, 1993, Number 192994, on
Symmetrix.
Filing by Computer Merchants Sales, Inc. and
assigned to United Jersey Bank, filed in the Erie
County Clerk's Office in Book 10, Page 5896, on
February 22, 1994, covering leased computer equipment
and New York State filing number 58570, on March 28,
1994.
Filing by Sun Financial Group, Inc., and assigned
to Citizens Commercial Leasing Corporation, in Erie
County Clerk's Office in Book 10, Page 7446, on April
11, 1996, covering leased computer equipment.
Filing by Xerox Corporation with the New York
Secretary of State, No. 160845 on August 3, 1992,
covering leased printer.
Filings by Sun Financial Group, Inc. with New York
Secretary of State, covering various computer
equipment: No. 167623, on August 5, 1993; No. 211105
on October 5, 1993; and Number 064434 on April 4, 1994,
assigned by Citizens Commercial Leasing Corporation.
Filing by IBM with Florida Secretary of State.
Permitted Encumbrances shall also include each of
the following:
(a) Security Interests which were granted
prior to the date hereof and which were disclosed
herein;
(b) liens for taxes, assessments, or other
governmental charges or levies to the extent that
payment thereof shall not at the time be required to be
made in accordance with the provisions of Section 5.5;
<PAGE>
(c) liens of carriers, warehousemen,
mechanics, materialmen and landlords incurred in the
ordinary course of business for sums not overdue or
being contested in good faith by appropriate
proceedings and for which appropriate reserves with
respect thereto have been established and maintained by
the Company on a consolidated basis in accordance with
GAAP;
(d) liens incurred in the ordinary course of
business in connection with workers' compensation,
unemployment insurance, or other forms of governmental
insurance or benefits, or to secure performance of
tenders, statutory obligations, leases, and contracts
(other than for borrowed money) entered into in the
ordinary course of business or to secure obligations on
surety or appeal bonds;
(e) easements, rights-of-way, zoning and
similar restrictions and other similar encumbrances or
title defects which, in the aggregate, are not
substantial in amount, and which do not in any case
materially detract from the value of the property
subject thereto or interfere with the ordinary conduct
of the business of the Company or its Subsidiaries; and
(f) judgment liens securing amounts not in
excess of $250,000.00 in existence less than 30 days
after the entry thereof or with respect to which
execution has been stayed or with respect to which the
appropriate insurance carrier has agreed in writing
that there is full coverage by insurance.
<PAGE>
EXHIBIT A
COMPLIANCE CERTIFICATE - FINANCIAL COVENANTS
GIBRALTAR STEEL CORPORATION OF NEW YORK
("Borrower") and GIBRALTAR STEEL CORPORATION
("Company") hereby certify to THE CHASE MANHATTAN BANK,
as administrative agent ("Administrative Agent") for
the Banks (as such term is defined in the Second
Amended and Restated Credit Agreement among the
Borrower, the Company, the Administrative Agent and the
Banks dated as of August 16, 1999 ("Agreement")) and to
each of the Banks that:
1. Capitalized terms not defined herein
shall have the meanings set forth in the Agreement.
2. The applicable date for all calculations
made in this Compliance Certificate is
__________________. ("Measurement Date").
3. The computations, ratios and
calculations set forth below, all of which are
calculated as of the Measurement Date, are true and
correct:
(a) Quarterly Test:
(i) Consolidated Net Worth
as of end of any
fiscal quarter $
(ii) Cumulative Net Income
(from 6/30/97) times
50% plus $120,000,000 = $
(iii) (i) minus (ii) = $
(b) (i) Funded Debt $
(ii) Earnings before
Interest and Taxes plus
depreciation and
amortization = $
(iii) Ratio of (i) to (ii) = to 1
(c) (i) Consolidated Earnings
Before Taxes and Interest
plus depreciation
for the four fiscal
quarters ended ______ = $
<PAGE>
(ii) Interest payable
on Consolidated
Total Liabilities
for same period = $
(iii) Ratio of (i) to (ii) = to 1
(d) (i) Current Assets = $
(ii) Current Liabilities = $
(iii) Ratio of (i) to (ii) = to 1
(e) Leverage Test I
(i) Indebtedness of the
Company on a
Consolidated basis = $
(ii) Consolidated Earnings
Before Taxes, Interest,
Depreciation and
Amortization = $
(iii) Capital Expenditures
not funded with proceeds
of the Revolving Credit
as listed on a Schedule
attached hereto
(excluding Capital
Expenditures made in
connection with
permitted acquisitions)= $
(iv) (ii) less (iii) = $
(v) Ratio of (i) to (iv) = to
WITNESS the signature of a duly authorized
officer of the Borrower and the Company on .
Borrower:
GIBRALTAR STEEL CORPORATION OF NEW YORK
<PAGE>
By:___________________________
Name: ________________________
Title:________________________
Company:
GIBRALTAR STEEL CORPORATION
By:___________________________
Name: ________________________
Title:________________________
<PAGE>
EXHIBIT B
COMPLIANCE CERTIFICATE - GENERAL
GIBRALTAR STEEL CORPORATION OF NEW YORK
("Borrower") and GIBRALTAR STEEL CORPORATION
("Company") hereby certify to THE CHASE MANHATTAN BANK
as agent ("Administrative Agent") for the Banks (as
such term is defined in the Second Amended and Restated
Credit Agreement among the Borrower, the Company, the
Administrative Agent and the Banks dated as of August
16, 1999 ("Agreement")), and to each of the Banks that:
1. Capitalized terms not defined herein
shall have the meanings set forth in the Agreement.
2 The Borrower and the Company have
complied with all the terms, covenants and conditions
to be performed or observed by them contained in the
Agreement and the Guaranties to which they are a party.
3. There exists no Default nor Event of
Default on the date hereof or, if applicable, after
giving effect to the Letter of Credit issued or the
Advances made on the date hereof.
4. The representations and warranties
contained in the Agreement or in any certificate,
document or financial or other statement furnished at
any time thereunder are true, correct and complete in
all material respects with the same effect as though
such representations and warranties had been made on
the date hereof, except to the extent that any such
representation and warranty relates solely to an
earlier date (in which case such representation and
warranty shall be true, correct and complete on and as
of such earlier date).
WITNESS the signature of a duly authorized
officer of the Borrower and the Company on .
BORROWER:
GIBRALTAR STEEL CORPORATION OF NEW YORK
By:
Name:
Title:
COMPANY:
GIBRALTAR STEEL CORPORATION
By:
Name:
Title:
<PAGE>
EXHIBIT C
REPLACEMENT
REVOLVING NOTE
$ Buffalo, New York
__________
FOR VALUE RECEIVED, the undersigned,
GIBRALTAR STEEL CORPORATION OF NEW YORK ("Borrower"),
hereby unconditionally promises to pay on the
Termination Date (as defined in the Credit Agreement
hereinafter referred to) to the order of
, the principal sum equal to the lesser of (a)
or (b) the aggregate unpaid principal amount of all
Advances [and Swingloans made by The Chase Manhattan
Bank ("Bank")] to the Borrower pursuant to the Second
Amended and Restated Credit Agreement, dated as of
August 16, 1999 among the Borrower, Gibraltar Steel
Corporation, The Chase Manhattan Bank as Administrative
Agent ("Administrative Agent") and the various
financial institutions named as Banks therein
(including the Bank), as the same may from time to time
be amended, supplemented or otherwise modified ("Credit
Agreement"), together with interest at the rate and on
the terms as specified herein. All capitalized terms
used in this Revolving Note and not otherwise defined
shall have the meanings set forth in the Credit
Agreement.
This Revolving Note shall bear interest at
the rates and on the dates determined in accordance
with Section 2.4 of the Credit Agreement.
Payments of both principal and interest are
to be made in lawful money of the United States of
America in immediately available funds at
Administrative Agent's Office.
Each entry on the Schedule attached hereto
(and any continuation thereof) shall be prima facie
evidence of the facts so set forth. No failure by the
Bank to make, and no error by the Bank in making, any
inscription on the Schedule shall affect the Borrower's
obligation to repay the full principal amount of the
Advances and the Swingloans made by the Bank to the
Borrower or the Borrower's obligation to pay interest
thereon at the agreed upon rate. The Bank is
authorized to inscribe the date of the making of each
Advance or Swingloan or conversion of any portion of
this Note to a LIBOR Loan, the date of the continuation
of any Base Rate Loan, the amount of each Advance or
Swingloan, its character as a Base Rate Loan or a LIBOR
Loan, the dates on which each LIBOR Period shall begin
and end, each payment of principal and the aggregate
unpaid balance of this Note, on the schedule annexed
hereto and constituting a part hereof, or on a
<PAGE>
continuation thereof which shall be attached hereto and
made a part hereof.
No failure by the Bank to exercise, and no
delay in exercising, any right or power hereunder shall
operate as a waiver thereof, nor shall any single or
partial exercise by the Administrative Agent or the
Bank of any right or power hereunder preclude any other
or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the
Bank, or of the Administrative Agent for the benefit of
the Bank, as herein specified are cumulative and not
exclusive of any other rights or remedies, including
those set forth in the Credit Agreement and the
Guaranties.
Upon the happening of one or more Events of
Default as described in Section 7.1 of the Credit
Agreement, this Revolving Note may be accelerated in
accordance with Section 7.2 of the Credit Agreement.
The Borrower hereby waives diligence,
presentment, protest and demand, and also notice of
protest, demand, dishonor and nonpayment of this
Revolving Note.
This Revolving Note is one of the Revolving
Note referred to in the Credit Agreement, to which
reference is hereby made with respect to prepayment and
rights of acceleration of the principal hereof on the
occurrence of certain events.
This Revolving Note shall be construed under,
and governed by, the laws of the State of New York,
without regard to its conflict of laws rules which
would make the laws of another jurisdiction applicable.
GIBRALTAR STEEL CORPORATION OF NEW YORK
[Seal] By:
<PAGE>
SCHEDULE
ADVANCES
BASIS OF
INTEREST
RATE
(BASE AMOUNT OF
DATE AMOUNT RATE OR LIBOR PRINCIPAL AGGREGATE NOTATION
ADVANCE OF LIBOR PERIOD PAID OR UNPAID MADE BY
MADE ADVANCE RATE) DATES PREPAID PRINCIPAL AND DATE
<PAGE>
SCHEDULE FOR CHASE NOTE ONLY
SWINGLOANS
DATE ADVANCE AMOUNT NOTATION
MADE OF INTEREST MADE BY
SWINGLOAN RATE AND DATE
<PAGE>
FIRST AMENDMENT TO SECOND AMENDED
AND RESTATED CREDIT AGREEMENT
This First Amendment dated as of November 1, 1999
to Second Amended and Restated Credit Agreement dated
as of August 16, 1999 by and among GIBRALTAR STEEL
CORPORATION OF NEW YORK ("Borrower"), GIBRALTAR STEEL
CORPORATION ("Company") and THE CHASE MANHATTAN BANK,
as administrative agent ("Administrative Agent") for
THE CHASE MANHATTAN BANK, FLEET NATIONAL BANK (formerly
known as Fleet Bank), MELLON BANK, N.A., BANK OF
AMERICA, N.A. (successor by merger to NATIONSBANK,
NA.), KEYBANK NATIONAL ASSOCIATION, and HSBC BANK USA
(formerly known as MARINE MIDLAND BANK) (collectively,
"Existing Banks").
A. Preliminary Statement
WHEREAS, the Borrower, the Company, the
Administrative Agent and the Existing Banks are parties
to a Second Amended and Restated Credit Agreement dated
as of August 16, 1999 pursuant to which the Banks have
agreed to extend credit to the Borrower ("Credit
Agreement"); and
WHEREAS, the Borrower, the Company and the
Banks wish to (i) increase the maximum amount of the
Revolving Credit, (ii) add PNC Bank, N.A. as a Bank
under the Credit Agreement and (iii) amend certain
other terms of the Credit Agreement;
WHEREAS, unless otherwise defined herein,
terms used in the Credit Agreement shall have such
defined meanings when used herein;
NOW, THEREFORE, in consideration of the
premises and for other good and valuable consideration,
receipt of which is hereby acknowledged, and upon
satisfaction of the conditions set forth in Section C,
below, the Banks, the Borrower, the Company, and the
Administrative Agent, hereby agree as follows:
B. Amendment
1. Section 1.1 of the Credit Agreement is
amended so that the definition of "Bank" and "Banks"
are amended to include PNC Bank, N.A.
2. Section 2.1 of the Credit Agreement is
amended so that the phrase "Two Hundred Sixty Million
Dollars ($260,000,000.00)" is deleted and the phrase
"Two Hundred Eighty Million Dollars ($280,000,000.00)"
is substituted in its place, each time it appears.
3. Section 2.2(a) of the Credit Agreement
is amended so that "$260,000,000" is deleted and
"$280,000,000" is substituted in its place.
<PAGE>
4. The following are added as new
subsections (e) and (f) to Section 10.1 of the Credit
Agreement:
"(e) which would release any material
portion of the collateral described in the Security
Agreements shall be made without the consent of each
Bank; or
(f) which would increase the total
Commitments above $280,000,000."
5. Schedule 1 of the Credit Agreement is
deleted in its entirety and replaced by Schedule 1
attached hereto.
6. Schedule 3.1(d) and Schedule 4.11 to the
Credit Agreement are each amended to add the following:
"Brazing Concepts Company, a Michigan
corporation"
7. The Schedule attached hereto as
Schedule 4.17 is attached to the Agreement as a new
Schedule 4.17.
C. Conditions. The effectiveness of this
Agreement shall be conditioned upon the satisfaction of
the following conditions:
1. The Borrower shall have executed and
delivered to PNC Bank, N.A. a Revolving Note in the
maximum principal amount of $20,000,000.
2. Brazing Concepts Company shall have
executed and delivered to the Administrative Agent, for
the benefit of the Banks, an unlimited continuing
guaranty in form acceptable to the Administrative Agent
and the Banks, guarantying payment of any and all
indebtedness and obligations of the Borrower and/or the
Company to the Banks.
3. The Borrower and/or the Company shall
have paid all costs and expenses incurred by the
Administrative Agent and the Banks in connection with
the transactions contemplated by this Agreement
including, without limitation, reasonable attorney's
fees.
D. Other Provisions
1. By execution of this Agreement, each of
the Banks consents to the acquisition by Gibraltar of
the stock of Brazing Concepts Company and waives any
default under Section 6.7 of the Credit Agreement
resulting from such acquisition.
2. Except as specifically set forth herein,
the Credit Agreement shall remain in full force and
effect and is hereby reaffirmed. The Borrower and the
Company acknowledge that they are bound by all of the
terms, covenants and conditions set forth in the Credit
<PAGE>
Agreement, and that, if there has occurred any Default
or Event of Default, the Agent and the Banks shall have
no obligation to make any Advances or Swingloans or to
issue any Letters of Credit. If there has occurred a
Default or an Event of Default, Agent and the Banks may
condition the making of any subsequent Advances or
Swingloans or the issuance of any Letters of Credit
upon the execution and delivery by Borrower and Company
of an amendment to the Credit Agreement which may
include, without limitation, additional or revised
covenants, an increased rate of interest on the
Revolving Credit, increased Letter of Credit or other
fees and such other terms, conditions and covenants as
the Agent and the Banks may require.
3. The terms "Administrative Agent" and
"Banks" as used herein shall include the successors and
assigns of those parties and shall include PNC Bank,
N.A.
4. This Agreement shall be construed under,
and governed by, the internal laws of the State of New
York without regard to its conflict of laws and rules
which would make the laws of another jurisdiction
applicable.
5. This Agreement may be executed in any
number of counterparts, each of which when so executed
and delivered shall be an original, but all such
counterparts shall together constitute one and the same
Agreement.
[This space intentionally left blank]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be signed by their duly authorized
officers, all on the date hereof.
Borrower:
GIBRALTAR STEEL CORPORATION OF NEW YORK
By: /s/ John E. Flint
John E. Flint
Vice President
Company:
GIBRALTAR STEEL CORPORATION
By: /s/ John E. Flint
John E. Flint
Vice President
THE CHASE MANHATTAN BANK,
as Administrative Agent
By:/s/ Robert J. McCardle
Robert J. McArdle
Vice President
Consented to this 1st day of November, 1999
FLEET NATIONAL BANK
(formerly known as Fleet Bank)
By:/s/ John C. Wright
Name: John C. Wright
Title: Vice President
<PAGE>
Consented to this 1st day of November, 1999
MELLON BANK, N.A.
By: /s/ Edward T. Kloeskery
Name: Edward T. Kloeskery
Title: Vice President
Consented to this 1st day of November, 1999
BANK OF AMERICA, N.A (successor by
Merger to NATIONSBANK, N.A.)
By: /s/ Thomas Blake
Name: Thomas Blake
Title: Managing Director
Consented to this 1 day of November, 1999
KEYBANK NATIONAL ASSOCIATION
By: /s/ Mark F. Wachowiak
Name: Mark F. Wachowiak
Title: Assistant Vice President
Consented to this 1st day of November, 1999
HSBC BANK USA (formerly known
as MARINE MIDLAND BANK)
By: /s/ William H. Graser
Name: William H. Graser
Title: Vice President
Consented to this 1st day of November, 1999
PNC BANK, N.A.
By: David B. Gookin
Name: David B. Gookin
Title: Vice President
<PAGE>
SCHEDULE 1
BANKS
Name; Notice Address;
Percentage Commitment LIBOR Lending Office
23.21429% $65,000,000.00 THE CHASE MANHATTAN BANK
Notice Address:
2300 Main Place Tower
Buffalo, New York 14202
Facsimile No. (716) 843-4939
Telephone No. (716) 858-1418
LIBOR Lending Office:
Same as above.
17.85714% $50,000,000.00 FLEET BANK
Notice Address:
10 Fountain Plaza, 9th Fl.
Buffalo, New York 14202
Facsimile No. (716) 847-4491
Telephone No. (716) 847-7332
LIBOR Lending Office:
Same as above.
14.28571% $40,000,000.00 MELLON BANK, N.A.
Notice Addresses:
Two Mellon Bank Center
Pittsburgh, Pennsylvania 15259
Facsimile No. (412) 234-9010
Telephone No. (412) 234-1098
<PAGE>
and
1128 State Street
Erie, Pennsylvania 16501
Facsimile No. (814) 453-7273
Telephone No. (814) 453-7275
LIBOR Lending Office:
Same as above.
8.92857% $25,000,000.00 BANK OF AMERICA, N.A.
Notice Addresses:
Bank of America Plaza
Mail Code TX1-492-67-01
901 Main Street, 67th Floor
Dallas, TX 75202
Facsimile: (214) 209-0980
Telephone: (214) 209-0193
LIBOR Lending Office:
(Same as above)
14.28571% $40,000,000 KEYBANK NATIONAL ASSOCIATION
Notice Address:
50 Fountain Plaza, 5th Floor
Buffalo, New York 14202
Facsimile No. (716) 847-7897
Telephone No. (716) 847-2314
Libor Lending Office:
50 Fountain Plaza, 5th Floor
Buffalo, New York 14202
Facsimile No. (716) 847-7897
Telephone No. (716) 847-2314
14.28571% $40,000,000
HSBC BANK USA
<PAGE>
Notice Address:
One HSBC Center, Lobby Level
Buffalo, New York 14203
Facsimile No. (716) 855-0384
Telephone No. (716) 841-2556
Libor Lending Office:
Same as above
7.14286% $20,000,000
PNC BANK, N.A.
Notice Address:
249 Fifth Avenue
Pittsburgh, PA 15222-2707
Facsimile No. (412) 705-3232
Telephone No. (412) 762-6278
<PAGE>
Schedule 4.17
To be Produced by Borrower; may include Liens on
Real Estate and Equipment being assumed in connection with
the acquisition.
<PAGE>
SECOND AMENDMENT TO SECOND AMENDED
AND RESTATED CREDIT AGREEMENT
This Second Amendment dated as of December 1, 1999
to Second Amended and Restated Credit Agreement dated
as of August 16, 1999 by and among GIBRALTAR STEEL
CORPORATION OF NEW YORK ("Borrower"), GIBRALTAR STEEL
CORPORATION ("Company") and THE CHASE MANHATTAN BANK,
as administrative agent ("Administrative Agent") for
THE CHASE MANHATTAN BANK, FLEET NATIONAL BANK (formerly
known as Fleet Bank), MELLON BANK, N.A., BANK OF
AMERICA, N.A. (successor by merger to NATIONSBANK,
NA.), KEYBANK NATIONAL ASSOCIATION, HSBC BANK USA
(formerly known as MARINE MIDLAND BANK) and PNC Bank,
N.A. (collectively, "Banks").
A. Preliminary Statement
WHEREAS, the Borrower, the Company, the
Administrative Agent and the Banks are parties to a
Second Amended and Restated Credit Agreement dated as
of August 16, 1999 as amended pursuant to a First
Amendment to Second Amended and Restated Credit
Agreement dated as of November 1, 1999 pursuant to
which the Banks have agreed to extend credit to the
Borrower ("Credit Agreement"); and
WHEREAS, the Borrower, the Company and the
Banks wish to amend certain other terms of the Credit
Agreement;
WHEREAS, unless otherwise defined herein,
terms used in the Credit Agreement shall have such
defined meanings when used herein;
NOW, THEREFORE, in consideration of the
premises and for other good and valuable consideration,
receipt of which is hereby acknowledged, and upon
satisfaction of the conditions set forth in Section C,
below, the Banks, the Borrower, the Company, and the
Administrative Agent, hereby agree as follows:
B. Amendment
1. Section 6.13 of the Credit Agreement
(Lease Rentals) is amended so that "$5,000,000" is
deleted and "$7,000,000" is substituted in its place.
2. Schedule 3.1(d) and Schedule 4.11 to the
Credit Agreement are each amended to add the following
as a Subsidiary of Borrower:
"Hughes Manufacturing, Inc., a Florida
corporation"
3. Schedule 4.17 to the Credit Agreement is
amended to add the following as the sole location of
Hughes Manufacturing, Inc. ("Hughes"):
<PAGE>
"11910 62nd Street, North Largo, Florida"
C. Conditions. The effectiveness of this
Agreement shall be conditioned upon the satisfaction of
the following conditions:
1. Hughes shall have executed and delivered
to the Administrative Agent, for the benefit of the
Banks, an unlimited continuing guaranty in form
acceptable to the Administrative Agent and the Banks,
guarantying payment of any and all indebtedness and
obligations of the Borrower and/or the Company to the
Banks, and a general security agreement in form
acceptable to the Administrative Agent and the Banks.
2. The Borrower shall have paid to the
Administrative Agent, for the benefit of the Banks, a
consent fee in the amount of $100,000.00.
3. The Borrower and/or the Company shall
have paid all costs and expenses incurred by the
Administrative Agent and the Banks in connection with
the transactions contemplated by this Agreement
including, without limitation, reasonable attorney's
fees.
D. Other Provisions
1. By execution of this Agreement, each of
the Banks consents to the acquisition by Gibraltar of
the stock of Hughes. The Company, the Agent and the
Banks acknowledge that the acquisition of Hughes shall
not constitute a violation of Section 6.7 of the Credit
Agreement, and that following the acquisition of
Hughes, the amount remaining available under Subsection
(ii)(c) of Section 6.7 for Expansions, joint ventures,
partnerships and the book value of assets acquired
shall be $8,000,000 in the aggregate from the date
hereof and for the entire period the Credit or any
portion thereof is outstanding.
2. Except as specifically set forth herein,
the Credit Agreement shall remain in full force and
effect and is hereby reaffirmed. The Borrower and the
Company acknowledge that they are bound by all of the
terms, covenants and conditions set forth in the Credit
Agreement, and that, if there has occurred any Default
or Event of Default, the Agent and the Banks shall have
no obligation to make any Advances or Swingloans or to
issue any Letters of Credit. If there has occurred a
Default or an Event of Default, Agent and the Banks may
condition the making of any subsequent Advances or
Swingloans or the issuance of any Letters of Credit
upon the execution and delivery by Borrower and Company
of an amendment to the Credit Agreement which may
include, without limitation, additional or revised
covenants, an increased rate of interest on the
Revolving Credit, increased Letter of Credit or other
fees and such other terms, conditions and covenants as
the Agent and the Banks may require.
3. The terms "Administrative Agent" and
"Banks" as used herein shall include the successors and
assigns of those parties.
4. This Agreement shall be construed under,
and governed by, the internal laws of the State of New
York without regard to its conflict of laws and rules
which would make the laws of another jurisdiction
applicable.
<PAGE>
5. This Agreement may be executed in any
number of counterparts, each of which when so executed
and delivered shall be an original, but all such
counterparts shall together constitute one and the same
Agreement.
[This space intentionally left blank]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be signed by their duly authorized
officers, all on the date hereof.
Borrower:
GIBRALTAR STEEL CORPORATION OF NEW YORK
By: /s/ John E. Flint
John E. Flint
Vice President
Company:
GIBRALTAR STEEL CORPORATION
By: /s/ John E. Flint
John E. Flint
Vice President
THE CHASE MANHATTAN BANK,
as Administrative Agent
By: /s/ Robert J. McArdle
Robert J. McArdle
Vice President
Consented to this 1st day of December, 1999
FLEET NATIONAL BANK
(formerly known as Fleet Bank)
By: /s/ John C. Wright
Name: John C. Wright
Title: Vice President
<PAGE>
Consented to this 1st day of December, 1999
MELLON BANK, N.A.
By: /s/ Brian V. Ciaverella
Name: Brian V. Ciaverella
Title: Vice President
Consented to this 1st day of December, 1999
BANK OF AMERICA, N.A (successor by
Merger to NATIONSBANK, N.A.)
By: /s/ Suzanne B. Smith
Name: Suzanne B. Smith
Title: Principal
Consented to this 1st day of December, 1999
KEYBANK NATIONAL ASSOCIATION
By: /s/ Mark F. Wachowiak
Name: Mark F. Wachowiak
Title: Assistant Vice President
Consented to this 1st day of December, 1999
HSBC BANK USA (formerly known
as MARINE MIDLAND BANK)
By: /s/ William H. Graser
Name: William H. Graser
Title: Vice President
Consented to this 1st day of December, 1999
PNC BANK, N.A.
By: /s/ David B. Gookin
Name: David B. Gookin
Title: Vice President
<PAGE>
FIRST AMENDMENT
TO THE
PARTNERSHIP AGREEMENT
OF SAMUEL STEEL PICKLING COMPANY
THIS FIRST AMENDMENT TO THE PARTNERSHIP AGREEMENT
OF SAMUAL STEEL PICKLING COMPANY ("Amendment") is
made as of May 28, 1999, by and among Samuel
Pickling Management Company, a New York general
partnership ("Samuel Management"), Cleveland
Pickling Inc., a Delaware corporation
("Cleveland"), and Samuel Manu-Tech Pickling Inc.,
a Delaware corporation ("Manu-Tech").
WHEREAS, Samuel Steel Pickling Company (the
"Partnership") is a general partnership formed
under the laws of the State of New York; and
WHEREAS, the operations and management of the
Partnership are governed by a partnership
agreement having an effective date of June 1, 1988
(the "Partnership Agreement"); and
WHEREAS, as a result of the redemption and
withdrawal of Universal Steel Co., an Ohio
corporation, as a general partner in the
Partnership, Samuel Management now owns 100
percent of the partnership interests in the
Partnership; and
WHEREAS, Manu-Tech is about to acquire a general
partnership interest representing a 68.75 percent
interest in the capital and profits in the
Partnership from Samuel Management and Cleveland
is about to acquire the remaining general
partnership interest representing a 31.25 percent
interest in the capital and profits in the
Partnership from Samuel Management, and Samuel
Management is about to withdraw as a partner; and
WHEREAS, it is the intent of the parties of this
Amendment that the Partnership continue without
dissolution or termination pursuant to law or
otherwise; and
WHEREAS, the parties have executed consents
authorizing the herein before mentioned
transactions;
NOW THEREFORE, in consideration of the mutual
covenants and agreements contained herein and in
the Partnership Agreement of Samuel Steel Pickling
Company, and other good and valuable consideration
now paid by each of the parties hereto to the
other, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree to
amend the Agreement of Partnership as follows:
<PAGE>
1. Manu-Tech is admitted as a partner in
the Partnership with all the attending
rights, benefits, and privileges thereto
and by executing this Amendment shall be
treated as a substitute partner and as
satisfying all requirements of Article 17
of the Partnership Agreement.
2.Cleveland is admitted as a partner in the
Partnership with all the attending rights,
benefits, and privileges thereto and by
executing this Amendment shall be treated
as a substitute partner and as satisfying
all requirements of Article 17 of the
Partnership Agreement.
3.Section 4.2 of the Partnership Agreement
is amended in its entirely as follows:
4.2 "Managing Partner" shall refer to
Manu-Tech.
4.Sections 7.1, 7.2 and 7.5 are deleted in
their entirety and the reference to
Sections 7.1 and 7.2 contained in Section
7.4 are deleted.
5. Section 9.2(i)(a) of the Partnership
Agreement is amended in its entirety as follows:
9.2 (i)(a) The respective partnership
shares of the Partners (the "Partnership
Shares") shall be as set forth opposite
the Partners' names below:
Partner Partnership Share
Manu-Tech 68.75%
Cleveland 31.25%
IN WITNESS WHEREOF, the parties have executed
this Amendment as of the day and year first
above written.
Samuel Pickling Management Company
By /s/ Ed O'Connor
Ed O'Connor
Cleveland Pickling Inc.
By /s/ Brian J. Lipke
Brian J. Lipke
Samuel Manu-Tech Pickling Inc.
By /s/ Ed O'Connor
Ed O'Connor
<PAGE>
Subsidiaries
The following is a list of the subsidiaries of
Gibraltar Steel Corporation. The names of
indirectly owned subsidiaries are indented under
the name of their respective parent corporations:
Gibraltar Steel Corporation of New York New York
Wm. R. Hubbell Steel Corporation Illinois
Carolina Commercial Heat Treating, Inc. Nevada
Southeastern Metals Manufacturing Company, Inc. Florida
Gibraltar Steel Corporation Flight Services Corp. New York
Solar Group, Inc. Delaware
Appleton Supply Co., Inc. Delaware
United Steel Products Company Minnesota
Harbor Metal Treating Co. Michigan
Rock River Heat Treating Company Michigan
Harbor Metal Treating of Indiana, Inc. Michigan
K & W Metal Fabricators, Inc. Colorado
Hi-Temp Heat Treating, Inc. Delaware
Brazing Concepts Company Michigan
Hughes Manufacturing, Inc. Florida
Gibraltar Strip Steel, Inc. Delaware
Integrated Technologies International, Ltd. Delaware
Cleveland Picking, Inc. Delaware
GIT Limited New York
Gibraltar Steel Corporation of Tennessee Tennessee
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED FINANCIAL STATEMENTS ON FORM 10-K AND IS QUALIFIED IN ITS ENTIRETY
BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<CURRENCY> US DOLLARS
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> DEC-31-1999
<EXCHANGE-RATE> 1
<CASH> 4,687
<SECURITIES> 0
<RECEIVABLES> 79,929
<ALLOWANCES> 1,511
<INVENTORY> 94,994
<CURRENT-ASSETS> 182,591
<PP&E> 274,513
<DEPRECIATION> 58,483
<TOTAL-ASSETS> 522,080
<CURRENT-LIABILITIES> 69,668
<BONDS> 235,302
0
0
<COMMON> 126
<OTHER-SE> 185,333
<TOTAL-LIABILITY-AND-EQUITY> 522,080
<SALES> 621,918
<TOTAL-REVENUES> 621,918
<CGS> 493,945
<TOTAL-COSTS> 493,945
<OTHER-EXPENSES> 72,504
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 13,439
<INCOME-PRETAX> 42,030
<INCOME-TAX> 17,022
<INCOME-CONTINUING> 25,008
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 25,008
<EPS-BASIC> 1.99
<EPS-DILUTED> 1.95
</TABLE>
