<PAGE> 1
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
FORM 10-Q
--------------------------
(MARK ONE)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED APRIL 30, 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 NO. 0-23442
CAMERON ASHLEY BUILDING PRODUCTS, INC.
(Exact name of registrant as specified in its charter)
GEORGIA 58-1984957
------------------ ----------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number )
11651 PLANO ROAD, DALLAS TX 75243
(Address of principal executive offices)
(Zip Code)
214-860-5100
(Registrant's telephone number, including area code)
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 the number of shares outstanding of each of the issuer's
classes of common stock, as of the latest practicable date.
Outstanding at May 26, 1999: 8,662,242
================================================================================
<PAGE> 2
CAMERON ASHLEY BUILDING PRODUCTS, INC.
INDEX
<TABLE>
<CAPTION>
PART I. FINANCIAL INFORMATION PAGE NO.
--------------------- --------
<S> <C> <C>
Item 1. Consolidated Financial Statements
Consolidated Balance Sheets as of April 30, 1999 and
October 31, 1998 3
Consolidated Statements of Income for the three months and six months
ended April 30, 1999 and 1998 4
Consolidated Statement of Stockholders' Equity for the
six months ended April 30, 1999 5
Consolidated Statements of Cash Flows for the six months
ended April 30, 1999 and 1998 6
Notes to Consolidated Financial Statements 7-8
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations 9-13
Item 3. Quantitative and Qualitative Disclosures about Market Risk 13
PART II. OTHER INFORMATION
Item 1. Legal Proceedings 14
Item 4. Submission of Matters to a Vote of Security Holders 14
Item 6. Exhibits and Reports on Form 8-K 14
</TABLE>
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<PAGE> 3
PART 1. FINANCIAL INFORMATION
ITEM 1. CONSOLIDATED FINANCIAL STATEMENTS
CAMERON ASHLEY BUILDING PRODUCTS, INC.
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS)
<TABLE>
<CAPTION>
April 30, October 31,
1999 1998
--------- -----------
(Unaudited)
<S> <C> <C>
ASSETS
CURRENT ASSETS:
Cash and cash equivalents $ 4,363 $ 3,706
Accounts receivable, net 157,951 148,392
Inventories 128,750 99,810
Prepaid expenses and other assets 2,983 1,999
Deferred income taxes 3,705 3,703
--------- ---------
Total current assets 297,752 257,610
PROPERTY, PLANT AND EQUIPMENT, NET 56,246 50,454
INTANGIBLES, NET 64,020 48,865
OTHER ASSETS 1,710 4,804
--------- ---------
TOTAL $ 419,728 $ 361,733
========= =========
LIABILITIES & STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable $ 99,806 $ 80,950
Accrued expenses 18,340 24,052
Line of credit 4,743 0
Current maturities of debt 3,945 2,346
--------- ---------
Total current liabilities 126,834 107,348
LONG-TERM DEBT, LESS CURRENT MATURITIES 168,480 135,051
MINORITY INTEREST 184 0
DEFERRED INCOME TAXES 4,425 4,369
--------- ---------
Total liabilities 299,923 246,768
COMMITMENTS AND CONTINGENCIES
STOCKHOLDERS' EQUITY:
Preferred stock; authorized 100,000 shares, no shares issued
and outstanding
Common stock; no par value; authorized 20,000,000 shares;
9,852,000 shares issued April 30, 1999, and
9,834,000 shares issued at October 31, 1998 64,566 64,329
Retained earnings 69,190 65,756
Treasury stock, at cost, 1,190,000 shares (13,633) (13,633)
Accumulated other comprehensive income (loss), net of tax (318) (1,487)
--------- ---------
Total stockholders' equity 119,805 114,965
--------- ---------
TOTAL $ 419,728 $ 361,733
========= =========
</TABLE>
See notes to consolidated financial statements.
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<PAGE> 4
CAMERON ASHLEY BUILDING PRODUCTS, INC.,
CONSOLIDATED STATEMENTS OF INCOME
(UNAUDITED)
(IN THOUSANDS EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
---------------------- ----------------------
April 30, April 30, April 30, April 30,
1999 1998 1999 1998
-------- -------- -------- --------
<S> <C> <C> <C> <C>
REVENUE $268,717 $196,896 $492,133 $363,986
COST OF SALES 214,734 157,349 393,412 290,521
-------- -------- -------- --------
GROSS PROFIT 53,983 39,547 98,721 73,465
OPERATING EXPENSES 44,662 32,217 86,486 63,541
RE-ENGINEERING & SYSTEM CONVERSION 724 923 1,063 923
-------- -------- -------- --------
INCOME FROM OPERATIONS 8,597 6,407 11,172 9,001
INTEREST EXPENSE 2,810 1,765 5,394 3,421
-------- -------- -------- --------
INCOME BEFORE INCOME TAXES 5,787 4,642 5,778 5,580
PROVISION FOR INCOME TAXES 2,310 1,894 2,344 2,192
-------- -------- -------- --------
NET INCOME $ 3,477 $ 2,748 $ 3,434 $ 3,388
======== ======== ======== ========
NET INCOME PER SHARE:
BASIC $ .40 $ .29 $ .40 $ 0.36
======== ======== ======== ========
DILUTED $ .40 $ .29 $ .39 $ 0.35
======== ======== ======== ========
WEIGHTED AVERAGE SHARES OUTSTANDING:
BASIC 8,654 9,350 8,650 9,336
======== ======== ======== ========
DILUTED 8,801 9,637 8,802 9,608
======== ======== ======== ========
</TABLE>
See notes to consolidated financial statements.
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<PAGE> 5
CAMERON ASHLEY BUILDING PRODUCTS, INC.
CONSOLIDATED STATEMENT OF STOCKHOLDERS' EQUITY
(UNAUDITED)
(IN THOUSANDS)
<TABLE>
<CAPTION>
ACCUMULATED
COMMON STOCK OTHER
--------------------- RETAINED TREASURY COMPREHENSIVE
SHARES VALUE EARNINGS STOCK INCOME (LOSS) TOTAL
-------- -------- -------- -------- -------------- --------
<S> <C> <C> <C> <C> <C> <C>
BALANCE AS OF NOVEMBER 1, 1998 9,834 $ 64,329 $ 65,756 $(13,633) $ (1,487) $114,965
Proceeds from exercise of stock options, 1 5 -- -- -- 5
including tax benefits of $1,000
Proceeds from employee stock purchase plan 17 137 -- -- -- 137
Management and director stock plan
compensation expense -- 95 -- -- -- 95
Net income -- -- 3,434 -- -- 3,434
Foreign currency translation adjustment -- -- -- -- 1,169 1,169
-------- -------- -------- -------- -------- --------
BALANCE AS OF APRIL 30, 1999 9,852 $ 64,566 $ 69,190 $(13,633) $ (318) $119,805
======== ======== ======== ======== ======== ========
</TABLE>
See notes to consolidated financial statements
-5-
<PAGE> 6
CAMERON ASHLEY BUILDING PRODUCTS, INC.
CONSOLIDATED STATEMENT OF CASH FLOWS
(UNAUDITED)
(IN THOUSANDS)
<TABLE>
<CAPTION>
Six months ended
-----------------------
April 30, April 30,
1999 1998
--------- ---------
<S> <C> <C>
OPERATING ACTIVITIES:
Net income (loss) $ 3,434 $ 3,388
Adjustments to reconcile net income (loss) to cash
provided by operating activities:
Depreciation and amortization 5,891 4,393
Loss on sale of property, plant and equipment (2) (2)
Deferred income taxes 55 (1,387)
Changes in operating assets and liabilities, net of acquisitions:
Accounts receivable 1,170 3,569
Notes receivable held for resale (15) 6,180
Inventories (24,049) (19,796)
Prepaid expenses (628) (336)
Accounts payable and accrued expenses 5,339 (6,267)
Line of credit 700 (7,381)
Other assets/liabilities 1,525 (51)
--------- ---------
Net cash used in operating activities (6,580) (17,690)
INVESTING ACTIVITIES:
Payment for acquisitions (12,597) (660)
Purchases of property, plant and equipment, net (7,736) (3,995)
Investment in affiliate (2,223) (193)
Other 7 (3)
--------- ---------
Net cash used in investing activities (22,549) (4,851)
FINANCING ACTIVITIES:
Net borrowings under long-term debt 31,290 53,291
Repayments of seller financing of acquired business (1,525) (1,252)
Proceeds from employee stock purchase plan 137 108
Exercise of stock options 5 589
Other (121) (180)
--------- ---------
Net cash provided by financing activities 29,786 52,556
NET INCREASE (DECREASE) IN CASH AND CASH
EQUIVALENTS 657 30,015
CASH AND CASH EQUIVALENTS:
BEGINNING OF PERIOD 3,706 899
--------- ---------
END OF PERIOD $ 4,363 $ 30,914
========= =========
SUPPLEMENTAL DISCLOSURE OF CASH
FLOW INFORMATION:
Cash paid for interest $ 5,394 $ 2,932
========= =========
Cash paid for income taxes $ 6,237 $ 2,475
========= =========
</TABLE>
See notes to consolidated financial statements.
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<PAGE> 7
CAMERON ASHLEY BUILDING PRODUCTS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
APRIL 30, 1999
1. INTERIM FINANCIAL STATEMENTS
The accompanying consolidated condensed financial statements of Cameron Ashley
Building Products, Inc. and its subsidiaries (the "Company") have not been
audited; however, the balance sheet at October 31, 1998 has been derived from
the Company's audited financial statements. In the opinion of the Company's
management, the financial statements reflect all adjustments necessary to
present fairly the results of operations for the three months and six month
periods ended April 30, 1999 and 1998, the Company's financial position at April
30, 1999 and October 31, 1998, and the cash flows for the six month periods
ended April 30, 1999 and 1998. These adjustments are of a normal recurring
nature.
Certain notes and other information have been condensed in or omitted from the
interim financial statements presented in the Quarterly Report on Form 10-Q.
Therefore, these financial statements should be read in conjunction with the
Company's 1998 Annual Report on Form 10-K.
The operating results for the second quarter and for the six month period ended
April 30, 1999 are not necessarily indicative of the results that may be
expected for the entire year.
Certain prior year amounts have been reclassified to conform to current year
presentation.
2. NEW ACCOUNTING PRONOUNCEMENTS
On November 1, 1998, the Company adopted SFAS No. 130, "Reporting Comprehensive
Income", which establishes standards for reporting and display of comprehensive
income and its components in the financial statements. During the six month
periods ended April 30, 1999 and 1998 the Company's total comprehensive earnings
were as follows:
<TABLE>
<CAPTION>
1999 1998
------- -------
<S> <C> <C>
Net income (loss) $ 3,434 $ 3,388
Other comprehensive income (loss), net of tax:
Foreign currency translation adjustments 1,169 (62)
------- -------
Comprehensive income $ 4,603 $ 3,326
</TABLE>
In June 1997, the Financial Accounting Standards Board ("FASB") issued SFAS No.
131, "Disclosures About Segments of an Enterprise and Related Information" which
establishes standards for the way public companies disclose information about
operating segments, products and services, geographic areas and major customers.
The Company will adopt these standards commencing with the annual report for
fiscal year 1999. The Company does not expect the adoption of these standards to
have any impact on the Company's financial position or results of operations.
-7-
<PAGE> 8
3. LONG-TERM DEBT
Long-term debt consists of the following at April 30, 1999:
<TABLE>
<CAPTION> (In thousands)
<S> <C>
Senior Debt:
Unsecured Senior Notes with maturities and interest rates as follows:
$10,000 due April 15, 2001 bearing interest at 6.79%
$15,000 due April 15, 2002 bearing interest at 6.79%
with scheduled payments of $5.0 million
on April 15, 2000 and April 15, 2001
$10,000 due April 15, 2003 bearing interest at 7.21%
$15,000 due April 15, 2006 bearing interest at 7.61%
$3,000 due April 7, 2004 bearing interest at 6.71%
$63,000 due April 7, 2010 bearing interest at 6.90%
with payments of $12.6 million beginning April 7, 2006
$10,000 (Canadian $) due October 7, 2004 bearing interest at 6.45%
$7,000 due October 7, 2004 bearing interest at 6.71%
Interest is due semi-annually, with an average interest rate of 6.93% $129,347
Bank of America (as agent):
Revolving credit note due January 15, 2002; unsecured; interest is due
quarterly at the LIBOR rate or Banker's acceptance rate plus 0.50%
to 2.0%, or at a base rate (defined in the agreement as prime). At
April 30, 1999, the interest rate was 6.71% 34,700
Seller financing of acquired businesses:
Various terms, interest at 7%, collateralized by certain land and buildings 283
Other, including capital leases 8,095
--------
172,425
Less current maturities (3,945)
--------
Long-term debt $168,480
========
</TABLE>
The seller notes payable are subordinated to the obligations under the Bank of
America agreement.
At April 30, 1999, the Company had $1,273,500 of letters of credit issued under
the Bank of America revolving credit facility.
NOTE 4. ACQUISITIONS
On February 1, 1999, the Company acquired certain assets and assumed certain
liabilities of Performance Materials Supply Incorporated, a Kansas City, Kansas
distributor of building products. The purchase price, subject to post closing
adjustments, was approximately $1.5 million.
On February 12, 1999, the Company increased its ownership from 33% to 53.5% of
the issued and outstanding stock of Field Marketing, Inc. for approximately $2.2
million. In May, 1999, the Company increased its ownership of Field Marketing,
Inc. from 53.5% to 55.23% for approximately $0.5 million.
In June, 1999, the Company acquired certain assets and assumed certain
liabilities of Fox Valley Building Materials, Inc., an Elgin, Illinois
distributor of building products. The purchase price, subject to post closing
adjustments was approximately $3.6 million.
-8-
<PAGE> 9
ITEM 2. MANAGEMENT DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS
The following table sets forth items from Cameron Ashley Building Products,
Inc.'s Consolidated Statements of Income as percentages of revenue:
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
---------------------------------- ----------------------------------
April 30, 1999 April 30, 1998 April 30, 1999 April 30, 1998
-------------- -------------- -------------- --------------
<S> <C> <C> <C> <C>
Revenue 100.0% 100.0% 100.0% 100.0%
Cost of Sales 79.9 79.9 79.9 79.8
-------------- -------------- -------------- --------------
Gross Profit 20.1 20.1 20.1 20.2
Operating Expenses 16.6 16.4 17.6 17.5
Re-engineering and
System Conversion Costs 0.3 0.5 0.2 0.3
-------------- -------------- -------------- --------------
Income from Operations 3.2 3.2 2.3 2.4
Interest Expense 1.0 0.9 1.1 0.9
-------------- -------------- -------------- --------------
Income Before Income Taxes 2.2 2.3 1.2 1.5
Provision for Income Taxes 0.9 0.9 0.5 0.6
-------------- -------------- -------------- --------------
Net Income 1.3% 1.4% 0.7% 0.9%
============== ============== ============== ==============
</TABLE>
- --------------------------------------------------------------------------------
RESULTS OF OPERATIONS
SECOND QUARTER ENDED APRIL 30, 1999 COMPARED TO SECOND QUARTER ENDED APRIL 30,
1998
Revenue increased 36.5% from $196.9 million in the three months ended April 30,
1998 to $268.7 million in the three months ended April 30, 1999, an increase of
$71.8 million. Revenue growth in the quarter was principally due to additional
sales from acquisitions completed after April 30, 1998 and same branch sales
growth of 7.7%.
Gross profit for the second quarter increased 36.5% or $14.4 million on higher
sales levels. As a percentage of net sales, gross margin remained at 20.1% as
compared to the same quarter 1998.
Operating expenses increased 38.6% from $32.2 million in the 1998 period to
$44.7 million in the 1999 period. Operating expenses as a percentage of net
sales increased to 16.6% for the quarter from 16.4% in 1998 on a $71.8 million
increase in net sales. This increase is partly attributable to amortization of
intangibles associated with previous year's acquisitions. Operating expenses
incurred for re-engineering and system conversion costs totaled $0.7 million for
the quarter, compared to $0.9 million for the period a year ago. These expenses
were 0.3% of revenue for the period ended April 30, 1999, compared with 0.5% for
the same period of 1998.
Total operating expenses, including those associated with re-engineering and
system conversion, were $45.4 million in the quarter ended April 30, 1999,
compared with $33.1 million in the prior year quarter.
Income from operations increased 34.2% from $6.4 million in the 1998 period to
$8.6 million in the 1999 period, due to increased revenue and changes in
operating expenses referenced above. Re-engineering and system conversion costs
effectively reduced income from operations by 7.8% for the quarter and 12.6% for
the period a year ago. As a percent of net sales, income from operations
remained at 3.2% as compared with the same period 1998.
Interest expense increased 59.2% from $1.8 million in the 1998 period to $2.8
million in the current period due to additional debt of approximately $50
million incurred for acquisitions during the latter part of 1998 and higher
inventory levels to support seasonal needs over a larger branch base.
-9-
<PAGE> 10
As a result of the above factors, income before income taxes increased 24.7%
from $4.6 million in the 1998 period to $5.8 million in the 1999 period. Net
income increased from $2.7 million in the 1998 period to $3.5 million in the
1999 period. Diluted earnings per share increased from $0.29 in the 1998 period
to $0.40 in the 1999 period on 8.7% fewer shares outstanding.
SIX MONTHS ENDED APRIL 30, 1999 COMPARED TO SIX MONTHS ENDED APRIL 30, 1998
Revenue increased 35.2% from $364.0 million in the six months ended April 30,
1998, to $492.1 million in the six months ended April 30, 1999, an increase of
$128.1 million. Revenue growth for the six month period was primarily due to
additional sales from acquisitions, combined with same-branch sales growth of
6.3% for the six months ended April 30, 1999 compared to 1.5% in the 1998
period.
Gross profit for the six month period increased $25.3 million or 34.4%, and as a
percentage of revenue decreased from 20.2% in the 1998 period to 20.1% in the
1999 period.
Operating expenses increased 36.1% from $63.5 million in the 1998 period to
$86.5 million in the 1999 period, and increased as a percentage of revenue from
17.5% to 17.6%. Operating expenses include both branch operations expenses as
well as corporate overhead costs.
Operating expenses of $1.1 million from re-engineering and system conversion
costs were incurred in the six months ended April 30, 1999 compared to $0.9
million a year ago. These expenses were 0.2% of revenue for the six months ended
April 30, 1999 and 0.3% for the same period 1998, and effectively reduced income
from operations by 8.7% and 9.3% for 1999 and 1998 respectfully.
Total operating expenses, including costs associated with re-engineering and
system conversion, were $87.5 million in the six months ended April 30, 1999,
compared with $64.5 million in the 1998 period. $19.6 million of the increase is
due to new branch operating expenses.
Income from operations increased 24.1% from $9.0 million in the 1998 period to
$11.2 million in the 1999 period and decreased as a percentage of revenue from
2.4% to 2.3%.
Interest expense increased 57.7% from $3.4 million in the six months ended April
30, 1998 to $5.4 million in the six months ended April 30, 1999, due to
acquisitions in the latter part of 1998, and higher levels of inventory to
support a broader branch base.
As a result of the above factors, income before income taxes increased 3.5% from
$5.6 million in the 1998 period to $5.8 million in the 1999 period. Net income
remained at $3.4 million, increasing slightly by 1.4% in the 1999 period, and
net income as a percentage of revenue decreased from 0.9% in the 1998 period to
0.7% in the 1999 period. Diluted EPS increased from $0.35 per share in the 1998
period to $0.39 per share in the 1999 period.
EFFECTS OF INFLATION
Management does not believe that inflation has had a material impact on results
of operations for the periods presented. Substantial increases in costs,
however, could have a significant impact on the Company and the industry.
Management believes that, to the extent inflation affects its costs in the
future, the Company can generally offset inflation by increasing prices if
competitive conditions permit.
LIQUIDITY AND CAPITAL RESOURCES
The Company's primary needs for capital resources are to finance acquisitions,
working capital and capital expenditures. Borrowings for working capital
typically increase during periods of sales expansion when higher levels of
inventory and receivables are needed and decrease as inventories and receivables
are converted to cash which is then used to pay down debt. The Company had
$168.5 million of long-term debt, less current maturities, outstanding as of
April 30, 1999, consisting of the facilities described in the 1998 Annual
Report, Form 10-K and in the notes to the accompanying interim financial
statements.
Net cash used in operating activities was $6.6 million for the six months ended
April 30, 1999 compared to net cash used in operations of $17.7 million for six
months ended April 30, 1998. The improvement in cash used in operating
activities was due to a decrease in payments of accounts payable due primarily
to timing, and discontinued funding of consumer loans made under the line of
credit.
-10-
<PAGE> 11
Capital expenditures were $7.6 million up from $4.0 million for the six months
ended April 30, 1999 and 1998, respectively. The Company has budgeted $13.0
million for capital expenditures in fiscal 1999 relating to its currents
operations, including property, plant and equipment additions and replacements
and the costs of implementation of the Company's new enterprise information
systems. Management estimates the new system will have a total cost of $20 - $23
million of which approximately $17.0 million is of a capital nature. Of the
total cost, approximately $15 million had been incurred as of April 30, 1999,
and the remainder will be incurred by the middle of fiscal Year 2000 when
management expects the system to be fully implemented across the Cameron
division. The Company's fiscal 1999 budget for capital expenditures does not
include any amounts that may be attributable to acquisitions.
Management believes that funds generated from operations, funds available from
bank lines of credit, and other sources will be sufficient to meet the needs of
the Company's current operations for the next 12 months.
SEASONALITY
The Company's first and, to a lesser extent, its second quarter, are typically
adversely affected by winter construction cycles and weather patterns as the
level of activity in both the home improvement and new construction markets
decreases. Management closely monitors operating expenses and inventory levels
during seasonal periods and, to the extent possible, controls variable operating
costs to match seasonally adjusted revenues in both the U.S. and Canada.
YEAR 2000 COMPLIANCE
The Company utilizes a significant number of computer software programs and
information systems in its internal operations, including applications used in
financial business systems and various administration functions ("IT systems").
The Company also makes use of a variety of machinery and equipment in its
business which are operated by or reliant upon non-information technology
systems ("non-IT systems"), for example equipment or mechanical systems which
contain embedded technology such as microcontrollers. To the extent that the
source code of the software applications of these IT systems or the embedded
technologies of these non-IT systems are unable to appropriately interpret and
process the upcoming calendar year 2000 ("Year 2000"), some level of
modification or possible replacement of such applications would be necessary for
proper continuous performance. Without such modification or replacement, the
normal course of the Company's business could be disrupted or otherwise
adversely impacted. This potential problem is commonly referred to as the Year
2000 compliance issue.
State of Readiness. Management of the Company has substantially
completed evaluation of the status of the Company's internal IT and non-IT
systems for compliance with the Year 2000 issue. In addition, the Company has
almost completed verification of the readiness for Year 2000 of third party
systems with whom the Company has a material relationship, such as its largest
vendors and suppliers. On the basis of such evaluation, the Company has
developed a comprehensive Year 2000 readiness project plan.
Non-IT Systems. Management believes that the failure of any internal
non-IT system to become timely compliant for Year 2000 would not have a material
effect on the business, operations or financial condition of the Company as a
whole. Nevertheless, the Company will continue to take steps to modify or
replace all non-IT systems which are not Year 2000 compliant during the 1999
calendar year. The anticipated expenses for such conversions are not expected to
be material.
Major IT Systems. The Company's current primary internal IT system is
supplied and supported by DMSI. DMSI completed a multi-year compliance project
and released its Year 2000 compliant Version 8.1 in October 1998 and has
delivered this release to the Company as part of its annual support agreement.
Upon loading 8.1, the Company, through internal testing procedures, will confirm
Year 2000 compliance. While the upgrade to Version 8.1 has been completed by the
Company, internal testing is ongoing. This testing is scheduled to be
substantially completed by August 1999.
Certain other systems, running independently at a number of recently acquired
operations, would require revision, modification, or replacement to become Year
2000 compliant. The Company initiated a major re-engineering project in late
1997, centered around a new information system for the Cameron division, which
is scheduled to be near completion by the end of 1999 and will replace all
existing major systems including those in recently acquired operations.
The Company's business process re-engineering project is aimed at improving and
standardizing Company processes, using a "best practices" approach to reduce
operating costs. This project incorporates an IT system using J. D. Edwards
software and IBM hardware to be implemented in the Cameron division,
representing approximately 82.4% of the Company's total revenues in fiscal 1998.
The new IT system and re-engineered processes are expected to enhance the
Company's competitive position by reducing
-11-
<PAGE> 12
operating and administrative costs and improving customer service, pricing
management and inventory and logistics management. J.D. Edwards has represented
the new software to be fully Year 2000 compliant. The Company will test for such
compliance prior to final implementation.
Development of the new enterprise system is virtually complete, and the Cameron
division began the roll-out of the system implementation to its branches in
November 1998. As of March 1, 1999, all of the Company's Canadian operations
were operating on the new system. The Company will continue the system rollout
to its Cameron division U.S. operations throughout the remainder of 1999 and
into 2000.
The Cameron division has also completed the process of loading the DMSI Year
2000 compliant Version 8.1. This system will be available as a bridge for the
Company's locations which will not be converted by January 1, 2000 and as a
contingency plan for the entire Cameron division.
In the Ashley division, the Company operates a Data General Aviion system, which
has been determined to be Year 2000 compliant and has been successfully tested
on a preliminary basis. The Company will test this system again for Year 2000
compliance by the end of 1999.
Other IT Systems. The Company has assessed its telecommunications
systems with its third party providers and has been assured that they are or
will be made Year 2000 compliant without significant expense to the Company. The
Company is also assessing the requirements and expense to make Year 2000
compliant all third party IT-system application software typically used in
desktop formats, such as financial, accounting, spreadsheet, E-mail and word
processing programs, and management believes that these costs will not be
material to the Company.
Third Party Systems. The Company has completed a review of the issues
related to Year 2000 compliance by its largest suppliers and vendors. Due to the
nature of the Company's business, management believes that the loss of any
single supplier or vendor as a result of Year 2000 system problems would not
materially impact the Company's business, operations or financial condition.
Costs to Address Year 2000 Issues. It is important to note that,
although Year 2000 compliance is a necessary byproduct of the system
re-engineering project, it is only one portion of the benefit to be derived by
the Company from the new system conversion. While cost of the project
constitutes the vast majority of the Company's IT budget for the relevant
periods, such cost is not confined solely to the Year 2000 issue and is not
displacing other critical IT projects. It is not possible to segregate the total
expense to the Company strictly for Year 2000 compliance within the system
conversion project budget.
As of April 30, 1999, the costs to date of the system re-engineering project in
the Cameron division are approximately $15 million. The Company currently
expects that the final project cost to be $20 - $23 million. The Company's
results of operation reflect the amount of re-engineering and system conversion
costs that have been expensed and not capitalized. The Company's source of funds
for the system re-engineering project is cash generated by operations and
borrowings under existing bank facilities.
The costs of Year 2000 compliance verification and testing in the Company are
expected to be minimal. In addition, as stated above, management believes that
the costs for making other IT systems and non-IT systems Year 2000 compliant are
not material.
Risks to the Company for Year 2000 Issues. The worst case scenario to
the Company associated with its Year 2000 compliance efforts would be the
failure of the new enterprise system in the Cameron division to be Year 2000
compliant. This would require any operating branches not yet converted to the
new enterprise system to rely on the Company's current DMSI system and may
require already converted branches to revert back to the old system. Should the
Company's enterprise system experience a Year 2000 failure for an significant
period of time prior to implementation of its contingency plan, it would have an
impact on the Company's ability to efficiently process, bill, account for and
report its sales. In addition, in such a worst case scenario, manual processes
would be required to temporarily replace automated processes and could
moderately disrupt the Company's ability to take and fulfill product orders.
Contingency Plans. In the event that the Cameron division's new IT
system will not be fully operational in all locations in 1999, the Company has
as it is anticipated completed the installation of the Year 2000 compliant
version of its current DMSI system. Management believes that this has achieved
Year 2000 compliance in the Company's current IT system. There were minimal
costs associated with the DMSI upgrade.
-12-
<PAGE> 13
FORWARD-LOOKING INFORMATION
The matters discussed in this Report on Form 10-Q, other than historical
information, and, in particular, information regarding future revenue, earnings
and business plans and goals, consist of forward-looking information under the
Private Securities Litigation Reform Act of 1995, and are subject to and involve
risks and uncertainties which could cause actual results to differ materially
from the forward-looking information. Forward-looking statements may be
indicated by phrases such as "believes", "anticipates", "expects", "intends",
"foresees", "projects", "predicts", "forecasts" or similar words and involve
known and unknown risks and uncertainties which may cause the Company's actual
results in future periods to differ materially from forecasted results. Among
the factors that could cause results to differ materially are the following: (i)
business and economic conditions in North America, (ii) business and economic
conditions in the regional markets in which the Company operates, (iii) adverse
homebuilding conditions including those related to weather and interest rates,
(iv) the ability to make acquisitions at reasonable prices and achieve synergies
upon integration, (v) reliable and cost-effective supply of products from
manufacturers, and (vi) technology risks in integrating information systems.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The Company does not have any material exposure to market risk associated with
activities involving derivative financial instruments, other financial
instruments and derivative commodity instruments. The majority of the Company's
debt is at a fixed rate and, thus, is not exposed to interest rate risk.
-13-
<PAGE> 14
CAMERON ASHLEY BUILDING PRODUCTS, INC.
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
Bradco Supply Corporation v. Cameron Ashley Building Products, Inc.,
first reported in the Company's Annual Report on Form 10-K for the fiscal year
ended October 31, 1997. The Company's motion to dismiss was denied by the
Federal District Court in March 1999. There were no other material developments
in the quarter ended April 30, 1999. The Company filed a motion for summary
judgment in May 1999, which has not yet been ruled upon.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
(a)-(b) At the Company's Annual Meeting of Shareholders on March 3,
1999, the following were elected for a term of three years:
Class II
--------
Harry K. Hornish
Walter J. Muratori
Alan K. Swift
The following directors continued their terms of office as directors of
the Company after the Annual Meeting:
Class I Class III
------- ---------
Ronald R. Ross J. Veronica Biggins
Edwin A. Wahlen, Jr. Richard L. Cravey
Donald S. Huml Allen J. Keesler
(c) The following matters were voted upon at the Annual Meeting:
<TABLE>
<CAPTION>
For Against Votes Withheld
--- ------- --------------
<S> <C> <C> <C>
1. Directors
Harry K. Hornish 7,677,622 0 27,431
Walter J. Muratori 7,677,622 0 27,431
Alan K. Swift 7,677,622 0 27,431
2. Ratification of Deloitte & Touche, L.L.P. 7,702,330 1,679 1,044
as independent certified public
accountants for fiscal year ended
10/31/99
</TABLE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
Exhibits required to be filed with this Report on Form 10-Q are listed
on the Exhibit Index following the signature page hereof.
(b) Reports on Form 8-K
There were no reports on Form 8-K filed by the Registrant during the
quarter ended April 30, 1999.
-14-
<PAGE> 15
SIGNATURES
Pursuant to the requirements 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.
CAMERON ASHLEY BUILDING PRODUCTS, INC.
(Registrant)
Date: June 11, 1999 /s/ GAROLD E. SWAN
--------------------------------------------
Garold E. Swan
Executive Vice President/Chief Financial
Officer/Treasurer
-15-
<PAGE> 16
CAMERON ASHLEY BUILDING PRODUCTS, INC.
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBITS
- --------
<S> <C>
10.18.6 Third Restated Credit Agreement dated March 31, 1999 among the
Company, CABP Canada, Inc., Bank of America (formerly NationsBank
N.A.) as Agent and Issuing Bank, ABN AMRO Bank, N.V., as Co-Agent,
Canadian Imperial Bank of Commerce as Canadian Agent and Canadian
Issuing Bank, and other lenders.
10.29 Employment Agreement dated April 12, 1999 between Wm. Cameron &
Co. d/b/a Cameron Ashley Building Products and Garold E. Swan
11 Computation of Earnings per Share
27 Financial Data Schedule
</TABLE>
-16-
<PAGE> 1
EXHIBIT 10.18.6
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
THIRD RESTATED CREDIT AGREEMENT
among
CAMERON ASHLEY BUILDING PRODUCTS, INC.
and
CAMERON ASHLEY CANADA, INC.
and
NATIONSBANK, N.A.,
as Agent,
ABN AMRO BANK, N.V.,
as Co-Agent,
NATIONSBANK, N.A.,
as Issuing Bank,
CANADIAN IMPERIAL BANK OF COMMERCE,
as Canadian Agent,
CANADIAN IMPERIAL BANK OF COMMERCE,
as Canadian Issuing Bank
and each
LENDER
March 31, 1999
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
NATIONSBANC MONTGOMERY SECURITIES LLC,
as Lead Arranger and Book Manager
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE I. DEFINITIONS
1.01. Definitions.....................................................1
1.02. Accounting and Other Terms.....................................24
ARTICLE II. AMOUNTS AND TERMS OF ADVANCES
2.01. The Advances...................................................25
2.02. Making Advances................................................25
2.03. Evidence of Indebtedness.......................................27
2.04. Prepayments....................................................28
2.05. Repayment......................................................29
2.06. Interest.......................................................29
2.07. Default Interest...............................................30
2.08. Continuation and Conversion Elections for Domestic Advances....30
2.09. Fees...........................................................31
2.10. Reduction of Commitment........................................32
2.11. Funding Losses.................................................33
2.12. Computations and Manner of Payments............................33
2.13. Yield Protection; Changed Circumstances........................34
2.14. Use of Proceeds................................................37
2.15. Letters of Credit..............................................37
2.16. Canadian Letters of Credit.....................................41
2.17. Reallocation...................................................46
2.18. Provisions Respecting Canadian Advances........................47
ARTICLE III. CONDITIONS PRECEDENT
3.01. Conditions Precedent to Effectiveness..........................51
3.02. Conditions Precedent to All Advances, Letters of Credit and
Canadian Letters of Credit.....................................53
3.03. Conditions Precedent to Certain Advances, Letters of Credit
and Canadian Letters of Credit.................................54
ARTICLE IV. REPRESENTATIONS AND WARRANTIES
4.01. Organization and Qualification.................................54
4.02. Due Authorization; Validity....................................55
4.03. Conflicting Agreements and Other Matters.......................55
4.04. Financial Statements; Fiscal Year..............................55
4.05. Litigation.....................................................55
4.06. Compliance With Laws Regulating the Incurrence of Debt.........56
4.07. Licenses, Title to Properties, and Related Matters.............56
4.08. Outstanding Debt; Existing Liens...............................56
4.09. Taxes..........................................................56
4.10. ERISA..........................................................57
4.11. Environmental Laws.............................................57
4.12. Investments; Subsidiaries......................................57
4.13. Certain Fees...................................................57
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
4.14. CABP...........................................................58
4.15. Disclosure.....................................................58
4.16. Year 2000 Compliance...........................................58
4.17. Survival of Representations and Warranties, Disclaimers,
Waivers, etc...................................................58
ARTICLE V. NEGATIVE COVENANTS
5.01. Current Ratio..................................................58
5.02. Net Worth......................................................59
5.03. Funded Debt to EBITDA Ratio....................................59
5.04. Fixed Charges Coverage Ratio...................................59
5.05. Restricted Payment.............................................59
5.06. Debt...........................................................59
5.07. Dispositions of Assets.........................................60
5.08. Merger; Consolidation; Investments.............................60
5.09. Liens..........................................................61
5.10. Fiscal Year and Accounting Method..............................62
5.11. Issuance of Capital Stock; Amendment of Charter................62
5.12. Change of Ownership............................................62
5.13. Sale and Leaseback.............................................62
5.14. Business.......................................................62
5.15. Transactions with Affiliates...................................62
5.16. Compliance with ERISA..........................................63
5.17. Note Purchase Agreement........................................63
5.18. Swap Exposure..................................................63
5.19. CAFS...........................................................63
5.20. Subsidiaries and Obligors......................................63
5.21. Intercompany Advances..........................................63
ARTICLE VI. AFFIRMATIVE COVENANTS
6.01. Preservation of Existence and Similar Matters..................64
6.02. Licenses and Material Agreements...............................64
6.03. Compliance with Laws...........................................64
6.04. Maintenance of Properties......................................64
6.05. Payment of Taxes and Other Indebtedness........................64
6.06. ERISA Compliance...............................................64
6.07. Insurance......................................................65
6.08. Inspection Rights..............................................66
6.09. Records and Books of Account; Changes in GAAP..................66
6.10. Reporting Requirements.........................................66
6.11. Solvency.......................................................69
6.12. Subsidiaries and Obligor.......................................69
6.13. Further Assurances.............................................69
ARTICLE VII. EVENTS OF DEFAULT
7.01. Events of Default..............................................70
7.02. Remedies Upon Default..........................................72
7.03. Cumulative Rights..............................................72
7.04. Waivers........................................................72
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C>
7.05. Performance by Agent or any Lender.............................73
7.06. Expenditures...................................................73
7.07. Control........................................................73
ARTICLE VIII. THE AGENT AND CANADIAN AGENT
8.01. Authorization and Action.......................................73
8.02. Agent's Reliance, Etc..........................................74
8.03. NationsBank, N.A., Canadian Imperial Bank of Commerce and
Affiliates.....................................................74
8.04. Lender Credit Decision.........................................74
8.05. Indemnification by Lenders.....................................75
8.06. Successor Agent................................................75
8.07 Successor Canadian Agent.......................................75
ARTICLE IX. MISCELLANEOUS
9.01. Amendments and Waivers.........................................76
9.02. Notices........................................................76
9.03. Parties in Interest............................................78
9.04. Assignments and Participations.................................78
9.05. Sharing of Payments............................................79
9.06. Right of Set-off...............................................79
9.07. Costs, Expenses, and Taxes.....................................80
9.08. INDEMNIFICATION BY BORROWERS...................................81
9.09. Rate Provision.................................................81
9.10. Severability...................................................82
9.11. Exceptions to Covenants........................................82
9.12. Counterparts...................................................82
9.13. GOVERNING LAW; WAIVER OF JURY TRIAL............................82
9.14. RESTATEMENT....................................................83
9.15. ENTIRE AGREEMENT...............................................83
</TABLE>
iii
<PAGE> 5
<TABLE>
<CAPTION>
SCHEDULES AND EXHIBITS:
<S> <C>
Schedule 1.01 - Specified Percentages
Schedule 3.01(f) - Guarantors
Schedule 4.01-a - Jurisdictions of Qualification, Ownership and Capital
Structure - Parent
Schedule 4.01-b - Jurisdictions of Qualification, Ownership and Capital
Structure - Subsidiaries
Schedule 4.01-c - Jurisdictions of Qualification, Ownership and Capital
Structure - CA Canada
Schedule 4.05 - Existing Litigation
Schedule 4.08-a - Existing Debt and Liabilities
Schedule 4.08-b - Existing Liens
Schedule 4.09 - Taxes
Schedule 9.02 - Lender Addresses
Exhibit A - Note (Domestic Advance)
Exhibit B - Guaranty
Exhibit C - Compliance Certificate
Exhibit D - Borrowing Notice
Exhibit E - Conversion or Continuation Notice
Exhibit F - Borrowing Base Certificate
Exhibit G - Opinions of Parent's and Obligors' Counsel
Exhibit H - Instruction Letter
Exhibit I - Solvency Certificates
Exhibit J - Assignment and Acceptance Agreement
Exhibit K - Note (Canadian Advance)
Exhibit L - Reallocation Notice
Exhibit M - Parent Guaranty
</TABLE>
iv
<PAGE> 6
THIRD RESTATED CREDIT AGREEMENT
THIS THIRD RESTATED CREDIT AGREEMENT is dated as of March 31, 1999,
among Cameron Ashley Building Products, Inc., a Georgia corporation ("Parent"),
Cameron Ashley Canada, Inc., a Canadian corporation ("CA Canada"), the Lenders
from time to time party hereto or to an Assignment and Acceptance, NationsBank,
N.A., as Issuing Bank and Agent, ABN AMRO Bank, N.V., as Co-Agent, and Canadian
Imperial Bank of Commerce, as Canadian Issuing Bank and Canadian Agent.
BACKGROUND.
Parent and CA Canada entered into the Second Restated Credit Agreement
dated as of January 27, 1997, with NationsBank of Texas, National Association
(predecessor of NationsBank, N.A., by merger with and into NationsBank, N.A.),
as Issuing Bank and Agent, and ABN AMRO Bank, N.V., as Co-Agent (such
agreement, together with all amendments and restatements, the "Existing
Agreement"). Parent and CA Canada have requested certain modifications of,
among other things, financial covenants in the Existing Agreement, and Lenders
and Issuing Bank have agreed to make such amendments, pursuant to the terms and
conditions of this Agreement.
AGREEMENT.
NOW, THEREFORE, for valuable consideration hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I. DEFINITIONS
1.01. Definitions. As used in this Agreement, the following terms have
the respective meanings indicated below (such meanings to be applicable equally
to both the singular and plural forms of such terms):
"ABN" has the meaning set forth in Section 2.17(a).
"Acceptable Bank" means any bank or trust company (a) which is
organized under the laws of the United States of America or any State thereof
or the laws of Canada or any Province thereof, (b) which has capital, surplus
and undivided profits aggregating at least $100,000,000 or the Canadian Dollar
equivalent thereof, and (c) whose long-term unsecured debt obligations (or the
long-term unsecured debt obligations of the bank holding company owning all of
the capital stock of such bank or trust company) shall have been given a rating
of "AA" or better by S&P or "Aa" or better by Moody's.
"Acceptable Broker-Dealer" means any Person other than a natural
person (a) which is registered as a broker or dealer pursuant to the Securities
Exchange Act of 1934, as amended, and (b) whose long-term unsecured debt
obligations shall have been given a rating of "AA"
<PAGE> 7
or better by S&P or "Aa" or better by Moody's.
"Accounts" means, with respect to any Person, all present and future
rights, howsoever evidenced, of such Person to payment for goods sold or leased
or for services rendered, and whether or not they have been earned by
performance, including, without limitation, all "accounts" as such term is
defined under Applicable Law.
"Additional Letter of Credit Costs" has the meaning specified in
Section 2.15(d).
"Additional Canadian Letter of Credit Costs" has the meaning specified
in Section 2.16(d).
"Advance" means a Domestic Advance or a Canadian Advance.
"Affiliate" means a Person that directly, or indirectly through one or
more intermediaries, Controls or is Controlled By or is Under Common Control
with another Person.
"Agent" means NationsBank, N.A., in its capacity as Agent hereunder,
or any successor Agent appointed pursuant to Section 8.06.
"Agreement" means this Third Restated Credit Agreement, together with
all amendments and restatements in accordance with its terms.
"Applicable Law" means (a) in respect of any Person, all provisions of
Laws of Tribunals applicable to such Person, and all orders and decrees of all
courts and arbitrators in proceedings or actions to which the Person in
question is a party; (b) in respect of contracts relating to interest or
finance charges that are made or performed in the State of Texas, "Applicable
Law" shall mean the laws of the United States of America, including without
limitation 12 USC Sections 85 and 86, as amended from time to time, and any
other statute of the United States of America now or at any time hereafter
prescribing the maximum rates of interest on loans and extensions of credit,
and the laws of the State of Texas, including, without limitation, Article
5069-1H, Title 79, Revised Civil Statutes of Texas, 1925, as amended, and if
said Article 5069-1H is not applicable, Article 5069-1D, Title 79, Revised
Civil Statutes of Texas, 1925, as amended, and any other statute of the State
of Texas now or at any time hereafter prescribing maximum rates of interest on
loans and extensions of credit; provided that the parties hereto agree that the
provisions of Chapter 346 of the Texas Finance Code, as amended, shall not
apply to Advances, this Agreement, the Notes or any other Loan Papers; and (c)
in respect of contracts relating to the Canadian Commitment, means the laws of
the province of Alberta and the laws of Canada applicable therein.
"Applicable Margin" means for the four most recently completed
quarters immediately preceding the Effective Date and as tested at the end of
each successive fiscal quarter (or month, if during the Peak Period) for the
then four most recently completed quarters, effective on the first Business Day
following receipt by Agent from Parent of a Compliance Certificate delivered to
Agent for such fiscal quarter or month, as appropriate, demonstrating a change
in the Funded Debt to EBITDA Ratio to an amount so that another Applicable
Margin should be applied pursuant to the table set forth below, the Applicable
Margin for each LIBOR Advance and for each Banker's Acceptance made on such day
or thereafter shall thereafter mean the respective
2
<PAGE> 8
percentage calculated on a per annum basis set forth in Column A below opposite
such relevant Funded Debt to EBITDA Ratio, and the Applicable Margin for the
Commitment Fee shall mean the percentage calculated on a per annum basis in
Column B below opposite such relevant Funded Debt to EBITDA Ratio, until such
time as the Applicable Margin shall be redetermined as provided above; provided
that the Applicable Margin shall never be a negative number.
<TABLE>
<CAPTION>
Column A Column B
Funded Debt to EBITDA Ratio LIBOR and Commitment Fee
- --------------------------- Bankers --------------
Acceptances Rate
----------------
<S> <C> <C>
Greater than or equal to 3.75 to 1 2.000% 0.500%
Greater than or equal to 3.50 to 1 but less 1.750% 0.400%
than 3.75 to 1
Greater than or equal to 3.00 to 1 but less 1.500% 0.375%
than 3.50 to 1
Greater than or equal to 2.00 to 1 but less 1.250% 0.300%
than 3.00 to 1
Greater than or equal to 1.00 to 1 but less 1.000% 0.250%
than 2.00 to 1
Less than 1.00 to 1 0.750% 0.200%
</TABLE>
"Arranger" means NationsBanc Montgomery Securities LLC.
"Ashley" means Ashley Aluminum, LLC, a Georgia limited liability
company.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an Eligible Assignee, and accepted by Agent or Canadian
Agent, as the case may be, in the form of Exhibit J.
"Attributable Debt" means, as to any particular lease relating to a
Sale-and-Leaseback, the present value of all Lease Rentals required to be paid
by Parent or any Subsidiary of Parent under such lease during the remaining
term thereof, including any period for which such lease has been extended (such
present value to be determined in accordance with generally accepted financial
practice, compounded semiannually using a discount factor equal to the implicit
rate of such lease, if known, of, if not, the current LIBOR Rate).
"Auditor" means Deloitte & Touche, or other independent certified
public accountants selected by Parent and acceptable to Agent.
"Bankers' Acceptance" means a draft in Canadian Dollars drawn by CA
Canada and accepted by the Canadian Agent and issued under this Agreement.
"Bankers' Acceptance Rate" means the rate per annum established from
time to time by the Canadian Agent as its base rate for the acceptance of
Bankers' Acceptances.
"Base Advance" means an Advance bearing interest at the Base Rate.
"Base Rate" means a fluctuating rate per annum as shall be in effect
from time to time announced or published by NationsBank, N.A. as its prime
rate, and which may not necessarily be the lowest interest rate charged by
NationsBank, N.A.
3
<PAGE> 9
"Borrowers" means Parent and CA Canada.
"Borrowing" means a borrowing of the same Type made on the same day.
"Borrowing Base" means, as of any given date, an amount equal to the
sum of (a) 85% of the aggregate amount of Eligible Accounts of each of Parent,
Ashley, Cameron and CA Canada plus (b) 50% of the value of Eligible Inventory
of each of Parent, Ashley, Cameron and CA Canada; provided, in determining the
"Borrowing Base", at no time shall the amount specified in clause (b) exceed
the amount specified in clause (a).
"Borrowing Base Certificate" means a written report in the form of
Exhibit F, delivered by Parent to Agent and each Lender and certified as true
and correct by an authorized officer of Parent, Ashley, Cameron and CA Canada.
For purposes of preparing the Borrowing Base Certificate, to the extent that
any of the Eligible Accounts or Eligible Inventory are valued in Canadian
Dollars, Parent, Ashley, Cameron, and CA Canada shall determine the value of
Eligible Accounts and Eligible Inventory by using the Equivalent Amount
thereof.
"Borrowing Notice" has the meaning set forth in Section 2.02(a).
"Business Day" means (a) with respect to any Domestic Advance, a day
of the year on which banks are not required or authorized to close in Dallas,
Texas or, if with respect to any notice, payment or calculation related to a
LIBOR Advance, London, England, or (b) with respect to any Canadian Advance, a
day of the year on which banks are not required or authorized to close in
Calgary, Alberta, Canada.
"CABP" means CABP, Inc., an Arizona corporation.
"CA Canada" has the meaning set forth in the introductory paragraph.
"CAFS" means Cameron Ashley Financial Services, Inc., a Texas
corporation.
"CAFS Subsidiary" means any Person 100% of all of the equity interests
(except directors qualifying shares) and voting interests of which are owned by
CAFS.
"CDOR Screen Rate" means the average bid rate for bankers' acceptances
(expressed to five decimal places) quoted on the Reuter's Canadian discount
offer rate screen at 10:00 a.m., Toronto time, on the applicable date for
bankers' acceptances having a term to maturity of one month.
"Cameron" means Wm. Cameron & Co., a Georgia corporation.
"Canadian Advance" means an advance denominated in Canadian Dollars
made by a Canadian Lender to CA Canada.
"Canadian Agent" means Canadian Imperial Bank of Commerce, in its
capacity as Canadian Agent hereunder, or any successor Canadian Agent appointed
pursuant to Section 8.06.
4
<PAGE> 10
"Canadian Commitment" means CDN$25,000,000, as reduced from time to
time pursuant to Section 2.10 or 7.02, or as increased from time to time
pursuant to Section 2.17.
"Canadian Dollars" and "CDN$" mean the lawful currency of Canada.
"Canadian Dollar Exchange Equivalent" means, with reference to an
amount expressed in a currency other than Canadian Dollars, the amount
expressed in Canadian Dollars which the Canadian Agent would be required to pay
in Calgary at the opening of business on the date specified, in order to
purchase the original amount, in accordance with the Canadian Agent's usual
foreign exchange practice.
"Canadian Issuing Bank" means Canadian Imperial Bank of Commerce, in
its capacity as issuer of a Canadian Letter of Credit in accordance with
Section 2.16.
"Canadian L/C Cash Collateral Account" has the meaning specified in
Section 2.16(f).
"Canadian L/C Related Documents" has the meaning specified in Section
2.16(e).
"Canadian Lender" means the Canadian lenders listed on the signature
pages of this Agreement, and each Eligible Assignee which hereafter becomes a
party to this Agreement pursuant to Section 9.04 as a Canadian Lender.
"Canadian Letter of Credit" has the meaning specified in Section
2.16(a).
"Canadian Letter of Credit Agreement" has the meaning specified in
Section 2.16(b).
"Canadian Letter of Credit Facility" has the meaning specified in
Section 2.16(a).
"Canadian Prime Rate" means on any day and with respect to all
Canadian Advances, the variable rate of interest expressed as a percentage per
annum (calculated on the basis of a year of 365 days) which the Canadian
Imperial Bank of Commerce quotes from time to time as the reference rate of
interest it will charge for demand loans in Canadian Dollars to its customers
in Canada and which it designates as its prime rate. If on the date an
outstanding advance under the Canadian Commitment is converted to a Canadian
Advance bearing interest at the Canadian Prime Rate, the Canadian Prime Rate is
less than the Floor Rate on that date, then the interest rate applicable to
such Advance shall be the Floor Rate until such time as the Canadian Prime Rate
is no longer less than the Floor Rate, whereupon the interest rate applicable
to such Canadian Advance bearing interest at the Canadian Prime Rate will be
the Canadian Prime Rate. The Canadian Prime Rate is not necessarily intended to
be the lowest rate of interest determined by the Canadian Imperial Bank of
Commerce in connection with extensions of credit in Canadian Dollars. Changes
in the rate of interest on that portion of any Loans maintained as Canadian
Advances will take effect simultaneously with each change in the Canadian Prime
Rate. Canadian Agent may give notice to Borrowers and each Canadian Lender of
the Canadian Prime Rate from time to time quoted by the Canadian Imperial Bank
of Commerce and such notice shall be conclusive and binding for all purposes
absent error.
"Canadian Prime Rate Advance" means a Canadian Advance bearing
interest at the Canadian Prime Rate.
5
<PAGE> 11
"Capital Expenditures" means capital expenditures, as defined in
accordance with GAAP.
"Capital Leases" means capital leases and subleases, as defined in
accordance with GAAP.
"Co-Agent" means ABN AMRO Bank, N.V.
"Commitment" means the Domestic Commitment and the Canadian Commitment.
"Commitment Fee" means the fee described in Section 2.09(a).
"Compliance Certificate" means a certificate of an officer of Parent
acceptable to Agent, in the form of Exhibit C, (a) certifying that such
individual has no knowledge that a Default or Event of Default has occurred and
is continuing, or if a Default or Event of Default has occurred and is
continuing, a statement as to the nature thereof and the action being taken or
proposed to be taken with respect thereto, (b) setting forth detailed
calculations with respect to the covenants described in Sections 5.01 through
5.04 and 5.14 and (c) setting forth detailed calculations of the Applicable
Margin.
"Consequential Loss," with respect to (a) Parent's or CA Canada's
payment of all or any portion of the then-outstanding principal amount of a
LIBOR Advance or a Bankers' Acceptance on a day other than the last day of the
related Interest Period, including, without limitation, payments made as a
result of the acceleration of the maturity of a Note, (b) subject to Agent's
prior consent, a LIBOR Advance or a Bankers' Acceptance made on a date other
than the date on which the Advance is to be made according to Section 2.02(a)
or 2.08, or (c) any of the circumstances specified in Section 2.04 on which a
Consequential Loss may be incurred, means any loss, cost or expense incurred by
any Lender as a result of the timing of the payment or Advance or in
liquidating, redepositing, redeploying or reinvesting the principal amount so
paid or affected by the timing of the Advance or the circumstances described in
Section 2.04, which amount shall be the sum of (i) the interest that, but for
the payment or timing of Advance, such Lender would have earned in respect of
that principal amount, reduced, if such Lender is able to redeposit, redeploy,
or reinvest the principal amount, by the interest earned by such Lender as a
result of redepositing, redeploying or reinvesting the principal amount plus
(ii) any expense or penalty incurred by such Lender by reason of liquidating,
redepositing, redeploying or reinvesting the principal amount. Each
determination by each Lender of any Consequential Loss is, in the absence of
manifest error, conclusive and binding.
"Consolidated Assets" means, as of any date of determination, the
total amount of all assets of Parent and its Subsidiaries on a consolidated
basis in accordance with GAAP.
"Contingent Liability" means, as to any Person, any obligation,
contingent or otherwise, of such Person guaranteeing or having the economic
effect of guaranteeing any Debt or obligation of any other Person in any
manner, whether directly or indirectly, including without limitation any
obligation of such Person, direct or indirect, (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Debt or to
purchase (or to advance or supply funds for the purchase of) any security for
the payment of such Debt, (b) to purchase Property or services for the purpose
of assuring the owner of such Debt of its payment, or (c) to maintain the
solvency,
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<PAGE> 12
working capital, equity, cash flow, fixed charge or other coverage ratio, or
any other financial condition of the primary obligor so as to enable the
primary obligor to pay any Debt or to comply with any agreement relating to any
Debt or obligation.
"Continue," "Continuation" and "Continued" each refer to the
continuation pursuant to Section 2.08 of a LIBOR Advance from one Interest
Period to the next Interest Period.
"Control" or "Controlled By" or "Under Common Control" mean
possession, direct or indirect, of power to direct or cause the direction of
management or policies (whether through ownership of voting securities, by
contract or otherwise); provided that, in any event (a) any Person which
beneficially owns (i) 10% or more (in number of votes) of the securities having
ordinary voting power for the election of directors of a corporation shall be
conclusively presumed to control such corporation and (ii) 10% or more of the
interest in capital or profits of a partnership shall be conclusively presumed
to control such partnership, and (b) no Person shall be deemed to be an
Affiliate of a corporation solely by reason of his being an officer or director
of such corporation.
"Controlled Group" means, as to any Person, all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) which are under common control with such Person and which,
together with such Person, are treated as a single employer under Section
414(b), (c), (m) or (o) of the Code.
"Conversion or Continuance Notice" has the meaning set forth in
Section 2.08(b).
"Convertible Subordinated Debt" means all unsecured Debt of Parent
which shall (a) contain or have applicable thereto terms and provisions in form
and substance satisfactory to Determining Lenders, including, without
limitation, (i) subordination thereof to other Debt of Parent, including,
without limitation, the Obligations, and (ii) covenants, events of default and
other provisions, (b) have no principal payment prior to April 18, 2002, and
(c) contain a right for the holder thereof to convert such Debt to an equity
interest in Parent under certain circumstances.
"Current Assets" means the current assets of Parent and its
Subsidiaries on a consolidated basis determined in accordance with GAAP.
"Current Liabilities" means the sum of (a) current liabilities of
Parent and its Subsidiaries on a consolidated basis determined in accordance
with GAAP, plus (b) to the extent not included in clause (a), the unpaid
principal amount of all outstanding Advances, all accrued unpaid interest on
Advances and all Reimbursement Obligations.
"Currency Swap (1998)" means the ISDA Agreement dated effective
February 4, 1998, together with all schedules, between ABN AMRO Bank, N.V.,
Chicago Branch, and CA Canada.
"Debt" means all obligations, contingent or otherwise, which in
accordance with GAAP are required to be classified on the balance sheet as
liabilities, and in any event including Capital Leases, Contingent Liabilities
that are required to be disclosed and quantified in notes to consolidated
financial statements in accordance with GAAP, and liabilities secured by any
Lien on any Property, regardless of whether such secured liability is with or
without recourse.
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<PAGE> 13
"Debtor Relief Laws" means applicable bankruptcy, reorganization,
moratorium, or similar Laws, or principles of equity affecting the enforcement
of creditors' rights generally.
"Default" means any event specified in Section 7.01, whether or not
any requirement in connection with such event for the giving of notice, lapse
of time, or happening of any further condition has been satisfied.
"Determining Lenders" means any combination of Lenders whose
allocations as set forth on Schedule 1.01 are at least 66.67% of $100,000,000.
"Disposition Value" means, at any time, with respect to any Property,
the book value thereof, valued at the time of such disposition in good faith by
the owner of such Property.
"Distribution" means, as to any Person, (a) any declaration or payment
of any distribution or dividend (other than a stock dividend) on, or the making
of any pro rata distribution, loan, advance, or investment to or in any holder
(in its capacity as a partner, shareholder or other equity holder) of, any
partnership interest or shares of capital stock or other equity interest of
such Person, or (b) any purchase, redemption, or other acquisition or
retirement for value of any shares of partnership interest or capital stock or
other equity interest of such Person.
"Dollars" and "$" mean lawful currency of the United States of America.
"Domestic Advance" means an advance denominated in Dollars made by a
Lender to Parent.
"Domestic Commitment" means $80,000,000, as reduced from time to time
pursuant to Section 2.10 or 7.02.
"Domestic Lender" means the domestic lenders listed on the signature
pages of this Agreement, and each Eligible Assignee which hereafter becomes a
party to this Agreement pursuant to Section 9.04 as a Domestic Lender.
"EBITDA" means, as of any date of determination, (a) the sum of
Parent's and its Subsidiaries' (i) pre-tax income or deficit, as the case may
be (excluding extraordinary items and income from the sale of assets other than
in the ordinary course of business), plus (ii) cash interest expense paid or
interest expense accrued, amortization of Debt discounts, any payments or fees
with respect to letters of credit, bankers' acceptances or similar facilities,
and fees and expenses with respect to Hedge Agreements or similar agreements,
plus (iii) depreciation and amortization expense, plus (iv) cash interest paid
with respect to Capital Leases, plus (v) other non-cash charges of Parent and
its Subsidiaries for such period deducted from consolidated revenues in
determining net income for such period, plus (vi) all charges taken by Parent
during fiscal year 1998 in connection with the phase-out of CAFS (not to exceed
in the aggregate $3,000,000); minus (vii) non-cash items of Parent and its
Subsidiaries for such period increasing consolidated revenues in determining
net income for such period, all calculated on a consolidated basis in
accordance with GAAP.
"EBITDAR" means, as of any date of determination, (a) the sum of
Parent's and its Subsidiaries' (i) pre-tax income or deficit, as the case may
be (excluding extraordinary items and
8
<PAGE> 14
income from the sale of assets other than in the ordinary course of business),
plus (ii) cash interest expense paid or interest expense accrued, amortization
of Debt discounts, any payments or fees with respect to letters of credit,
bankers' acceptances or similar facilities, and fees and expenses with respect
to Hedge Agreements or similar agreements, plus (iii) depreciation and
amortization expense, plus (iv) lease payments paid pursuant to Operating
Leases, plus (v) cash interest paid with respect to Capital Leases, plus (vi)
other non-cash charges of Parent and its Subsidiaries for such period deducted
from consolidated revenues in determining net income for such period, plus
(vii) all charges taken by Parent during fiscal year 1998 in connection with
the phase-out of CAFS (not to exceed in the aggregate $3,000,000); minus (viii)
non-cash items of Parent and its Subsidiaries for such period increasing
consolidated revenues in determining net income for such period, all calculated
on a consolidated basis in accordance with GAAP.
"Effective Date" means March 31, 1999.
"Eligible Accounts" means at the time of any determination thereof
each Account as to which the following requirements have been fulfilled to the
satisfaction of Agent, or Canadian Agent, as the case may be:
(a) Parent, Ashley, Cameron or CA Canada as appropriate, has
lawful and absolute title to such Account;
(b) Such Account is a valid, legally enforceable obligation
of the Person who is obligated under such Account (the "account
debtor") for goods or services delivered or rendered to such Person,
subject to Debtor Relief Laws which may be applicable to the account
debtor, provided that the account debtor is not subject to any
proceeding involving Debtor Relief Laws other than as a creditor;
(c) There has been excluded from such Account any portion
that is subject to any dispute, offset, counterclaim, rebate or other
claim or defense on the part of the account debtor or to any claim on
the part of the account debtor denying liability under such Account
known to Parent, Ashley, Cameron or CA Canada as appropriate;
(d) Such Account is evidenced by an invoice rendered to the
account debtor and such Account is not evidenced by any chattel paper,
promissory note or other instrument;
(e) Such Account is not subject to any security interest or
other Lien, except landlord and similar Liens and Liens incurred in
the ordinary course of business in connection with worker's
compensation, unemployment insurance or similar legislation; provided
such Liens only relate to amounts not yet due and payable;
(f) Fewer than ninety days have elapsed since the date
specified in any invoice with respect to such Account as the due date
for any amount stated on such invoice; and
(g) No account debtor in respect of such Account is (i)
primarily conducting business in any jurisdiction located outside the
United States of America or Canada unless otherwise acceptable to
Agent and Canadian Agent, (ii) any Tribunal, domestic or foreign
unless otherwise acceptable to Agent or Canadian Agent, as the case
may be (as evidenced
9
<PAGE> 15
by such Agent's specific written acceptance), or (iii) the subject of
a proceeding under any Debtor Relief Laws, provided, however,
notwithstanding this clause (iii), provided that all the other
requirements of Eligible Accounts are fulfilled to the satisfaction of
Agent or Canadian Agent, as the case may be, accounts of other Persons
acceptable to Agent or Canadian Agent, as the case may be (which
acceptance shall be evidenced solely by such Agent's specific written
consent) which are the subject of a proceeding under Debtor Relief
Laws shall be Eligible Accounts; provided, that, no accounts payable
by an account debtor shall constitute Eligible Accounts if 10% or more
of the aggregate dollar amount of all Accounts owed to Parent, Ashley,
Cameron or CA Canada, as appropriate, by such account debtor have been
due and payable for 120 days or more from the date specified in any
invoice with respect to such Account as the due date for any amount
stated in such invoice; provided, further, if the accounts payable by
an account debtor and all Affiliates of such account debtor shall
constitute 15% or more of the aggregate dollar amount of all Accounts
owed to Parent, Ashley, Cameron or CA Canada, as appropriate, the
dollar amount of such accounts payable of such account debtor and its
Affiliates in excess of 15% of the aggregate amount of all Accounts
owed to Parent, Ashley, Cameron or CA Canada, as appropriate, shall be
excluded in each determination of Eligible Accounts.
"Eligible Assignee" means (a) a commercial bank organized under the
laws of the United States, or any state thereof, or the laws of Canada, or any
province thereof, and having total assets in excess of the equivalent of
$500,000,000; (b) a savings and loan association or savings bank organized
under the laws of the United States, or any state thereof, or Canada, or any
province thereof, having total assets in excess of the equivalent of
$500,000,000, and not in receivership or conservatorship; (c) a commercial bank
organized under the laws of any other country which is a member of the
Organization for Economic Cooperation and Development, or a political
subdivision of any such country, and having total assets in excess of the
equivalent of $500,000,000, provided that such bank is acting through a branch
or agency located in the country in which it is organized or another country
which is described in this clause; and (d) the central bank of any country
which is a member of the Organization for Economic Cooperation and Development.
"Eligible Inventory" means at any date the lesser of the actual cost
or the current fair market value of Inventory (excluding goods in transit and
work in progress) of Parent, Ashley, Cameron or CA Canada, as appropriate,
determined in accordance with GAAP, provided that such Inventory shall
constitute Eligible Inventory only if on the date as of which the determination
is being made (a) it shall have been either (i) paid for or (ii) purchased on
open account from a vendor who does not have a purchase money security interest
or other Lien on either the acquired Inventory or any other Property of Parent,
Cameron, Ashley or CA Canada, as appropriate, to secure the purchase price, (b)
it shall not be damaged or obsolete, (c) it shall not have exceeded its normal
shelf life, (d) it shall not be subject to any Lien or security interest,
except landlord and similar Liens and Liens incurred in the ordinary course of
business in connection with worker's compensation, unemployment insurance or
similar legislation; provided such Liens only relate to amounts not yet due and
payable, (e) Parent, Ashley, Cameron or CA Canada, as appropriate, shall have
lawful and absolute title to it, (f) it is located in the United States of
America or Canada, and (g) Parent, Cameron, Ashley or CA Canada, as
appropriate, is neither consignor nor consignee with respect to such Inventory.
"Environmental Claim" means any written notice by any Tribunal
alleging potential
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<PAGE> 16
liability for damage to the environment, or by any Person alleging potential
liability for personal injury (including sickness, disease or death), resulting
from or based upon (a) the presence or release (including sudden or non-sudden,
accidental or non-accidental, leaks or spills) of any Hazardous Material at, in
or from property, whether or not owned by Parent or any of its Subsidiaries, or
(b) circumstances forming the basis of any violation, or alleged violation, of
any Environmental Law.
"Environmental Laws" means the Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C. Section 9601 et seq.) ("CERCLA"),
the Hazardous Material Transportation Act (49 U.S.C. Section 1801 et seq.), the
Resource Conservation and Recovery Act (42 U.S.C Section 6901 et seq.), the
Federal Water Pollution Control Act (33 U.S.C. Section 1251 et seq.), the Clean
Air Act (42 U.S.C. Section 7401 et seq.), the Toxic Substances Control Act (15
U.S.C. Section 2601 et seq.), and the Occupational Safety and Health Act (29
U.S.C. Section 651 et seq.) ("OSHA"), as such laws have been or hereafter may
be amended or supplemented, any and all analogous future federal, or present or
future state or local, Laws, and any and all analogous present or future laws
of Canada or any province or territory therein.
"Equity Proceeds" means the gross amount payable to Parent with
respect to each issuance of any equity interest of Parent on or after the
Effective Date, net only of actual costs and expenses payable by Parent to
Persons not Affiliates of Parent who provided underwriting, accounting, legal,
or similar services with respect to such issuance.
"Equivalent Amount" means, on any date, the amount of Dollars into
which an amount of Canadian Dollars may be converted at the Bank of Canada noon
spot rate in Toronto as at approximately 12:00 noon, Toronto time, on such
date.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and the rulings and regulations issued thereunder, as from time to
time in effect.
"ERISA Affiliate" means any Person that for purposes of Title IV of
ERISA is a member of the controlled group of Parent or any Obligor, or is under
common control with Parent or any Obligor, within the meaning of Section 414(c)
of the Internal Revenue Code of 1986, as amended, and the regulations and
rulings issued thereunder.
"ERISA Event" means (a) a reportable event, within the meaning of
Section 4043 of ERISA, unless the 30-day notice requirement with respect
thereto has been waived by the PBGC, (b) the issuance by the administrator of
any Plan of a notice of intent to terminate such Plan, pursuant to Section
4041(a)(2) of ERISA (including any such notice with respect to a plan amendment
referred to in Section 4041(e) of ERISA), (c) the cessation of operations at a
facility in the circumstances described in Section 4068(f) of ERISA, (d) the
withdrawal by Parent, any Subsidiary of Parent, or an ERISA Affiliate from a
Multiple Employer Plan during a Plan year for which it was a substantial
employer, as defined in Section 4001(a)(2) of ERISA, (e) the failure by Parent,
any Subsidiary of Parent, or any ERISA Affiliate to make a payment to a Plan
required under Section 302 of ERISA, (f) the adoption of an amendment to a Plan
requiring the provision of security to such Plan, pursuant to Section 307 of
ERISA, or (g) the institution by the PBGC of proceedings to terminate a Plan,
pursuant to Section 4042 of ERISA, or the occurrence of any event or condition
that constitutes grounds under Section 4042 of ERISA for the termination of, or
the appointment of a trustee to administer, a Plan.
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<PAGE> 17
"Event of Default" means any of the events specified in Section 7.01
of this Agreement, provided there has been satisfied any requirement in
connection therewith for the giving of notice, lapse of time, or happening of
any further condition.
"Facility" means each piece of improved real property (whether owned
or leased) at which an Obligor conducts business operations.
"Fair Market Value" means, at any time and with respect to any
Property, the sale value of such Property that would be realized in an
arm's-length sale at such time between an informed and willing buyer and an
informed and willing seller (neither being under a compulsion to buy or sell).
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted average of
the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published for such day
(or, if such day is not a Business Day, for the next preceding Business Day) by
the Federal Reserve Bank of Dallas, 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 Agent from three federal funds brokers of
recognized standing selected by it.
"Field" means Field Marketing, Inc., an Illinois corporation.
"Fixed Charges Coverage Ratio" means, for Parent and its Subsidiaries
calculated on a consolidated basis in accordance with GAAP for the 365-day
period ended on the date of calculation, the ratio of (a) EBITDAR minus Capital
Expenditures, to (b) lease payments paid pursuant to Operating Leases, plus
interest expense with respect to Funded Debt and Capital Leases, plus all
scheduled principal payments with respect to Funded Debt.
"Floor Rate" means, for any day, the CDOR Screen Rate at or about
10:00 a.m., Toronto time on that day, plus 1%.
"Funded Debt" means, as to any Person, at any date, without
duplication, (a) all obligations of such Person for borrowed money, (b) all
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments and (c) all obligations of such Person to pay the deferred
purchase price of property or services, except trade accounts payable arising
in the ordinary course of business.
"Funded Debt to EBITDA Ratio" means, for any date of determination,
the ratio of (a) the amount of Funded Debt of Parent and its Subsidiaries as at
the date of determination, to (b) EBITDA for the 365-day period ended on the
date of determination. For purposes of calculating this ratio only, with
respect to Permitted Acquisitions occurring at any time during the four
quarters immediately preceding the date of calculation of EBITDA, EBITDA shall
have added to it the pro forma trailing 12 months EBITDA (calculated to exclude
any increases in EBITDA which would be the result of any expenses that Parent
projects to be eliminated by such Permitted Acquisition) attributable to such
Permitted Acquisition as if such Permitted Acquisition occurred on the first
day of such period. With respect to assets not owned at all times during the
four quarters immediately preceding the date of calculation of EBITDA, the
EBITDA attributable to
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<PAGE> 18
any assets disposed of during such four quarters shall be deducted in the
calculation of EBITDA.
"GAAP" means generally accepted accounting principles applied on a
consistent basis. Application on a consistent basis shall mean that the
accounting principles observed in a current period are comparable in all
material respects to those applied in a preceding period, except for new
developments or statements promulgated by the Financial Accounting Standards
Board.
"Guarantee" means, with respect to any Person all agreements to
acquire any debt, equity or asset of such Person, guarantee any obligation of
such Person, or maintain the liquidity or net worth of such Person, and all
liabilities resulting from substantive consolidation, membership in any
corporate group or similar equitable remedy, claims with respect to the breach
of any agreement, all damages and penalties, and any indemnity of any Person.
"Guarantors" means each Person listed on Schedule 3.01(f) and any
other Person which executes a Guaranty.
"Guaranty" means a Guaranty executed by each Guarantor in
substantially the form of Exhibit B.
"Hazardous Materials" means all materials subject to any Environmental
Law, including without limitation materials listed in 49 C.F.R. Section
172.101, Hazardous Substances, explosive or radioactive materials, hazardous or
toxic wastes or substances, petroleum or petroleum distillates, asbestos, or
material containing asbestos.
"Hazardous Substances" means hazardous waste as defined in the Clean
Water Act, 33 U.S.C. Section 1251 et seq., the Comprehensive Environmental
Response Compensation and Liability Act as amended by the Superfund Amendments
and Reauthorization Act, 42 U.S.C. Section 9601 et seq., the Resource
Conservation Recovery Act, 42 U.S.C. Section 6901 et seq., and the Toxic
Substances Control Act, 15 U.S.C. Section 2601 et seq and similar substances as
defined in any analogous laws of Canada or any province, territory, or
municipality therein.
"Hedge Agreements" means any and all non-speculative agreements,
devices or arrangements designed to protect at least one of the parties thereto
from the fluctuations of interest rates, currency exchange rates, forward rates
applicable to such party's assets, commodity prices (including commodity
hedging agreements), liabilities or exchange transactions, including, but not
limited to, dollar-denominated or cross-currency interest rate exchange
agreements, forward currency exchange agreements, interest rate cap, swap or
collar protection agreements, and forward rate currency or interest rate
options, as the same may be amended or modified and in effect from time to
time, and any and all cancellations, buy backs, reversals, terminations or
assignments of any of the foregoing
"Highest Lawful Rate" means at the particular time in question the
maximum rate of interest which, under Applicable Law, Lenders are then
permitted to charge on the Obligations. If the maximum rate of interest which,
under Applicable Law, the Lenders are permitted to charge on the Obligations
shall change after the date hereof, the Highest Lawful Rate shall be
automatically increased or decreased, as the case may be, from time to time as
of the effective time of each change in the Highest Lawful Rate without notice
to Borrowers. For purposes of determining the Highest Lawful Rate under the
Applicable Law of the State of Texas, the
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<PAGE> 19
applicable rate ceiling shall be (a) the weekly rate ceiling described in and
computed in accordance with the provisions of Article 5069-1D, Title 79,
Revised Civil Statutes of 1925, as amended, or (b) either the quarterly ceiling
or the annualized ceiling computed pursuant to Art. 5069-1D.008, Title 79,
Revised Civil Statutes of Texas, as amended; provided, however, that at any
time the weekly rate ceiling, the quarterly ceiling or the annualized ceiling
shall be less than 18% per annum or more than 24% per annum, the provisions of
Article 5069-1D.009(a) and (b), Title 79, Revised Civil Statutes of Texas, as
amended, shall control for purposes of such determination, as applicable
"Insufficiency" means, with respect to any Plan, the amount, if any,
of its unfunded benefit liabilities within the meaning of Section 4001(a)(18)
of ERISA.
"Interest Period" means the period beginning on the date the Advance
is made, continued or accepted as a LIBOR Advance or as a Bankers' Acceptance
and ending one, two, three, or six months thereafter (as Parent or CA Canada,
as the case may be, shall select); provided, however, that whenever the first
day of any Interest Period occurs on a day of an initial calendar month for
which there is no numerically corresponding day in the calendar month that
succeeds such initial calendar month by the number of months equal to the
number of months in such Interest Period, such Interest Period shall end on the
last Business Day of such succeeding calendar month.
"Inventory" means, with respect to any Person, any and all goods,
wheresoever located, including, without limitation, goods in transit, whether
now owned or hereafter acquired by such Person, which are held for sale or
lease, furnished under any contract of service or held as raw materials, work
in process or supplies, and all materials used or consumed in such Person's
business, including, without limitation, all such property the sale or other
disposition of which has given rise to Accounts of such Person and which has
been returned to or repossessed or stopped in transit by such Persons and all
"inventory" as such term is defined under Applicable Law.
"Investment" means any acquisition of all or substantially all assets
of any Person, or any direct or indirect purchase or other acquisition of, or a
beneficial interest in, capital stock or other securities of any other Person,
or any direct or indirect loan, advance (other than advances to employees for
moving and travel expenses, drawing accounts, and similar expenditures in the
ordinary course of business), or capital contribution to or investment in any
other Person, including without limitation the incurrence or sufferance of Debt
or accounts receivable of any other Person that are not current assets or do
not arise from sales to that other Person in the ordinary course of
business.
"Issuing Bank" means NationsBank, N.A., in its capacity as issuer of a
Letter of Credit pursuant to Section 2.15.
"Law" means any constitution, statute, law, ordinance, regulation,
rule, order, writ, injunction, or decree of any Tribunal.
"L/C Cash Collateral Account" has the meaning specified in Section
2.15(f).
"L/C Related Documents" has the meaning specified in Section 2.15(e).
"Lease Rentals" means, with respect to any period, the sum of the
minimum amount of
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<PAGE> 20
rental and other obligations required to be paid during such period by Parent
or any Subsidiary of Parent as lessee under all leases of real or personal
property (other than Capital Leases), excluding any amounts required to be paid
by the lessee (whether or not therein designated as rental or additional
rental) (a) which are on account of maintenance and repairs, insurance, taxes,
assessments, water rates and similar charges, or (b) which are based on
profits, revenues or sales realized by the lessee from the leased property or
otherwise based on the performance of the lessee.
"Lender Affiliate" means the holding company of any Lender, or any
wholly-owned direct or indirect subsidiary of such holding company or of such
Lender.
"Lenders" means each Canadian Lender and each Domestic Lender.
"Lending Office" means, with respect to each Lender, its branch or
affiliate, (a) initially, the office of each Lender, branch or affiliate
identified as such on Schedule 9.02, and (b) subsequently, such other office of
each Lender, branch or affiliate as each Lender may designate to Borrowers,
Agent and Canadian Agent as the office from which the Advances of each Lender
will be made and maintained and for the account of which all payments of
principal and interest on the Advances and the Commitment Fee will thereafter
be made. Lenders may have more than one Lending Office for the purpose of
making Base Advances, LIBOR Advances, Canadian Advances, bearing interest at
either the Canadian Prime Rate or the U.S. Base Rate and Canadian Advances by
way of Bankers' Acceptances.
"Letter of Credit" has the meaning specified in Section 2.15(a).
"Letter of Credit Agreement" has the meaning specified in Section
2.15(b).
"Letter of Credit Facility" has the meaning specified in Section
2.15(a).
"LIBOR Advance" means a Domestic Advance bearing interest at the LIBOR
Rate.
"LIBOR Lending Office" means, with respect to each Lender, the office
designated as its "LIBOR Lending Office" below its name on Schedule 9.02, or
such other office of Lender or any of its affiliates hereafter designated by
notice to Parent and Agent.
"LIBOR Rate" means a simple per annum interest rate equal to the
lesser of (a) the Highest Lawful Rate, and (b) the sum of the LIBOR Rate Basis
plus the Applicable Margin. The LIBOR Rate shall, with respect to LIBOR
Advances subject to reserve or deposit requirements, be subject to premiums
assessed therefor by each Lender, which are payable directly to each Lender.
Once determined, the LIBOR Rate shall remain unchanged during the applicable
Interest Period.
"LIBOR Rate Basis" means, for any Interest Period, the interest rate
per annum (rounded upward to the nearest 1/16th of one percent) determined by
Agent at approximately 9:00 a.m., on the date which is two Business Days before
the first day of such Interest Period to be the offered quotations that appear
on the Reuter's Screen LIBOR page for dollar deposits in the London interbank
market for a length of time approximately equal to the Interest Period for the
LIBOR Advance sought by Parent. If at least two such offered quotations appear
on the Reuter's Screen
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<PAGE> 21
LIBOR page, the LIBOR Rate shall be the arithmetic mean (rounded upward to the
nearest 1/16th of one percent) of such offered quotations, as determined by
Agent. If the Reuter's Screen LIBOR page is not available or has been
discontinued, the LIBOR Rate Basis shall be the rate per annum that Agent
determines to be the arithmetic mean (rounded as aforesaid) of the per annum
rates of interest at which deposits in dollars in an amount approximately equal
to the principal amount of, and for a length of time approximately equal to the
Interest Period for, the LIBOR Advance sought by Parent are offered to Agent in
immediately available funds in the London interbank market at 11:00 a.m.,
London time, on the date which is two Business Days prior to the first day of
an Interest Period.
"License" means, as to any Person, any license, permit, certificate of
need, authorization, certification, accreditation, franchise, approval, or
grant of rights by, or any filing or registration with, any Tribunal or third
person necessary or appropriate for such Person to own, maintain, or operate
its business or Property, including, but not limited to, the sale of Inventory.
"Lien" means any mortgage, pledge, security interest, encumbrance,
lien, or charge of any kind, including without limitation any agreement to give
or not to give any of the foregoing, any conditional sale or other title
retention agreement, any lease in the nature thereof, and the filing of or
agreement to give any financing statement or other similar form of public
notice under the Laws of any jurisdiction (except for the filing of a financing
statement or notice in connection with an (a) Operating Lease or (b) the true
consignment of goods to Parent or any Subsidiary of Parent as consignee).
"Litigation" means any proceeding, claim, lawsuit, arbitration, and/or
investigation conducted or threatened by or before any Tribunal or arbitrator,
including without limitation proceedings, claims, lawsuits, and/or
investigations under or pursuant to any environmental, occupational, safety and
health, antitrust, unfair competition, securities, Tax, or other Law, or under
or pursuant to any contract, agreement, or other instrument.
"Loan Papers" means this Agreement; the Notes; all Hedge Agreements;
each Guaranty and all other guaranties executed by any Person guaranteeing
payment of any portion of the obligations of any Person under this Agreement,
the Notes or any related agreement; all L/C Related Documents and Canadian L/C
Related Documents; all letters of credit issued by any Lender for the account
of any Obligor, and the application and all documentation related to any such
letter of credit; each Assignment and Acceptance; all promissory notes
evidencing any portion of the obligations under this Agreement; assignments,
security agreements, pledge agreements, mortgages, deeds of trust, financing
statements, collateral assignments, and other documents and instruments
granting an interest in any collateral, or related to the perfection and/or the
transfer thereof; and all other documents, instruments, agreements or
certificates executed or delivered by Borrowers or any other Person, as
security for any Obligor's obligations hereunder, in connection with the loans
and other extensions of credit to or for the benefit of Borrowers or otherwise;
as each such document shall, with the consent of Agent, Canadian Agent, Issuing
Bank, Canadian Issuing Bank (if required by the terms hereof) and Lenders
pursuant to the terms hereof, be amended, extended, or restated.
"Material Adverse Change" means any circumstance or event that is or
would reasonably be expected to (a) be material and adverse to the financial
condition, business operations, prospects, or Properties of any Obligor or (b)
materially affect the validity or enforceability of any
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Loan Paper.
"Maturity Date" means January 15, 2002 with respect to the Domestic
Commitment and January 15, 2002 with respect to the Canadian Commitment, or the
earlier date of termination in whole of the Commitment pursuant to Section 2.10
or 7.02.
"Maximum Amount" means the maximum amount of interest which, under
Applicable Law, a Lender is permitted to charge on the Obligations.
"Money Market Instruments" means United States Governmental Securities
described in clause (e) of the definition of "Restricted Investments" and
commercial paper described in clause (g) of the definition of "Restricted
Investments".
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which Parent, any Subsidiary, or any ERISA Affiliate is
making or accruing an obligation to make contributions, or has within any of
the preceding five plan years made or accrued an obligation to make
contributions, such plan being maintained pursuant to one or more collective
bargaining agreements.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of Parent,
any Subsidiary of Parent, or any ERISA Affiliate and at least one Person other
than Parent, any Subsidiary of Parent, and any ERISA Affiliate, or (b) was so
maintained and in respect of which Parent, any Subsidiary of Parent, or any
ERISA Affiliate could have liability under Section 4064 or 4069 of ERISA in the
event such plan has been or were to be terminated.
"Net Income" means with reference to any period, for Parent and its
Subsidiaries, determined on a consolidated basis in accordance with GAAP, net
profit or loss for such period.
"Net Worth" means, as of any date, the total shareholder's equity
(including capital stock, additional paid-in capital and retained earnings
after deducting treasury stock) which would appear on a balance sheet of Parent
and its Subsidiaries, prepared as of such date on a consolidated basis in
accordance with GAAP.
"Non-Guarantors" means the Subsidiaries of Parent or CA Canada which
are not Guarantors.
"Note" means each and "Notes" means all Notes of Borrowers evidencing
the Advances and obligations owing hereunder to each Lender, in substantially
the form of Exhibit A with respect to Domestic Advances and substantially in
the form of Exhibit K with respect to Canadian Advances, payable to the order
of each Lender, together with each renewal, amendment, and restatement thereof.
"Note Purchase Agreement" means each Note Purchase Agreement (1996
Series) and each Note Purchase Agreement (1998 Series).
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"Note Purchase Agreement (1996 Series)" means the Note Purchase
Agreement dated as of April 1, 1996, among Parent and each Senior Holder (1996
Series), as amended by the First Amendment dated as of January 15, 1997, among
Parent and each Senior Holder (1996 Series).
"Note Purchase Agreement (1998 Series)" means each Note Purchase
Agreement dated as of March 1, 1998, between either Parent or CA Canada,
respectively, and each Senior Holder (1998 Series).
"Notice of Issuance" has the meaning specified in Section 2.15(b) with
respect to a Letter of Credit and the meaning specified in Section 2.16(b) with
respect to a Canadian Letter of Credit.
"Obligations" means all present and future obligations, indebtedness
and liabilities, and all renewals and extensions of all or any part thereof, of
Borrowers and any other Person (other than Lenders, Issuing Bank, Canadian
Issuing Bank, Canadian Agent and Agent) to Lenders, Issuing Bank, Canadian
Issuing Bank, Canadian Agent and Agent arising from, by virtue of, or pursuant
to this Agreement, any of the other Loan Papers and any and all renewals and
extensions thereof or any part thereof, or future amendments thereto, all
interest accruing on all or any part thereof and reasonable attorneys' fees
incurred by Lenders, Issuing Bank, Canadian Issuing Bank, Canadian Agent and
Agent for the administration, execution of waivers, amendments and consents,
and in connection with any restructuring, workouts or in the enforcement or the
collection of all or any part thereof, whether such obligations, indebtedness
and liabilities are direct, indirect, fixed, contingent, joint, several or
joint and several. Without limiting the generality of the foregoing,
"Obligations" includes all amounts that would be owed by Borrowers and any
other Person (other than Agent, Issuing Bank, Canadian Issuing Bank, Canadian
Agent or Lenders) to Agent, Canadian Agent, Canadian Issuing Bank, Issuing Bank
or Lenders under any Loan Paper, but for the fact that they are unenforceable
or not allowable due to the existence of a bankruptcy, reorganization or
similar proceeding involving either of Borrowers or any other Person (including
all such amounts which would become due or would be secured but for the filing
of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding of either of Borrowers or any other Person
under any Debtor Relief Law).
"Obligor" means (a) Parent, (b) CA Canada, (c) each other Person
liable for performance of any of the Obligations, and (d) each other Person the
Property of which secures the performance of any of the Obligations.
"Operating Leases" mean operating leases, as defined in accordance
with GAAP.
"Parent Guaranty" means the Guarantees executed by Parent and Cameron
with respect to CA Canada's Obligations under this Agreement in substantially
the form of Exhibit M.
"PBGC" means the Pension Benefit Guaranty Corporation, or any
successor agency or entity performing substantially the same functions.
"Peak Period" means the period commencing on March 1 and ending on and
including August 31 of each year.
"Permitted Acquisition" means (a) the acquisition of capital stock or
other equity interest of any Person or (b) the acquisition of assets of any
Person constituting or related to a particular
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<PAGE> 24
line of business of any Person; provided, (i) in the case of a proposed
acquisition described in clause (a), substantially all business operations of
such Person to be acquired are in business lines related to the business lines
of Parent, CA Canada, and Guarantors on the Effective Date and such Person will
be a Subsidiary of Parent upon completion of such acquisition, (ii) in the case
of a proposed acquisition described in clause (b), the assets or line of
business of such Person to be acquired are in business lines related to the
business lines of Parent, CA Canada, and Guarantors on the Effective Date,
(iii) the Board of Directors, general partners or other governing body of such
Person has approved such transaction and such approval has not been revoked,
and (iv) such transaction is not the subject of pending Litigation; provided,
further, the business lines of Borrowers and Guarantors shall be deemed to not
include any line of business of CAFS.
"Permitted Amount" means the difference between (a) the sum of (i)
$10,000,000 plus (ii) 60% of cumulative Net Income reported for each fiscal
year of Parent in which Net Income is a positive number, commencing with the
fiscal year of Parent ending on October 31, 1996, plus (iii) 100% of cumulative
Net Income reported for each fiscal year of Parent in which Net Income is a
negative number (expressed as a negative number), commencing with the fiscal
year of Parent ending on October 31, 1996, minus (b) the aggregate amount of
all cash Distributions made by Parent on and after January 30, 1997.
"Permitted Dispositions" means (a) sales or dispositions of assets in
the ordinary course of business for full and fair consideration, (b) sales or
dispositions of tangible assets determined in good faith by such Person to be
obsolete or no longer useful in such Person's operations and (c) other Transfer
if (i) such Transfer is, in the good faith opinion of Parent, in exchange for
consideration having a Fair Market Value at least equal to that of the property
exchanged and is in the best interest of Parent or the Subsidiary of Parent
which owns such Property; (ii) immediately after giving effect to the Transfer,
no Default or Event of Default would exist; and (iii) if immediately after
giving effect to the Transfer, (A) the Disposition Value of all the property of
Parent and its Subsidiaries that was the subject of any Transfer occurring in
the period of four fiscal quarters of Parent then next ending would not exceed
15% of Consolidated Assets as of the end of the then most recently ended fiscal
quarter of Parent, and (B) the Disposition Value of all property that was the
subject of all Transfers occurring on or after the Effective Date would not
exceed 30% of Consolidated Assets as of the end of the then most recently ended
fiscal quarter of Parent.
"Person" means an individual, partnership, joint venture, corporation,
trust, Tribunal, unincorporated organization, and government, or any
department, agency, or political subdivision thereof.
"Prohibited Transaction" has the meaning specified in Section 4975 of
the Internal Revenue Code of 1986, as amended, or Section 406 of Title I of
ERISA.
"Property" means all types of real, personal, tangible, intangible, or
mixed property, whether owned or hereafter acquired in fee simple or leased by
each Obligor.
"Pro Rata" means, as to any Lender, in accordance with its percentage
of the aggregate amount of outstanding Advances expressed in Dollars as of the
date of determination; provided, however, that if no Advances are outstanding,
such term means in accordance with such Lender's Specified Percentage.
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"Quarterly Date" means the last day of each January, April, July and
October during the term of this Agreement.
"Ratable" means, as to any Lender, in accordance with its Specified
Percentage.
"Reallocation Notice" means the notice described in Section 2.17(a)
executed by Borrowers in the form of Exhibit L.
"Refinancing Advance" means any Advance which is used to pay the
principal amount (or any portion thereof) of an Advance at the end of its
Interest Period and which, after giving effect to such application, does not
result in an increase in the aggregate amount of outstanding Advances.
"Reimbursement Obligations" means, in respect of any Letter of Credit
or Canadian Letter of Credit as at any date of determination, the sum of (a)
the maximum aggregate amount which is then available to be drawn under such
Letter of Credit or Canadian Letter of Credit, plus (b) the aggregate amount of
all drawings under such Letter of Credit or Canadian Letter of Credit not
theretofore reimbursed by Borrowers.
"Repurchase Agreement" means any written agreement
(a) that provides for (i) the transfer of one or more Money
Market Instruments in an aggregate principal amount at least equal to
the amount of the Transfer Price (defined below) to Parent or any of
its Subsidiaries from an Acceptable Bank or an Acceptable Broker-
Dealer against a transfer of funds (the "Transfer Price") by Parent or
such Subsidiary to such Acceptable Bank or Acceptable Broker-Dealer,
and (ii) a simultaneous agreement by Parent or such Subsidiary, in
connection with such transfer of funds, to transfer to such Acceptable
Bank or Acceptable Broker-Dealer the same or substantially similar
Money Market Instruments for a price not less than the Transfer Price
plus a reasonable return thereon at a date certain not later than 365
days after such transfer of funds,
(b) in respect of which Parent or such Subsidiary shall have
the right, whether by contract or pursuant to Applicable Law, to
liquidate such agreement upon the occurrence of any default
thereunder; and
(c) in connection with which Parent or such Subsidiary, or an
agent thereof, shall have taken all action required by Applicable Law
or regulations to perfect a Lien in such Money Market Instruments.
"Restricted Investments" means the following:
(a) property to be used in the ordinary course of business of
Parent and its Subsidiaries;
(b) current assets arising from the sale of goods and
services in the ordinary course of business of Parent and its
Subsidiaries;
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(c) Permitted Acquisitions,
(d) Investments in Guarantors;
(e) Investments in United States Governmental Securities,
provided that such obligations mature within thirty-six months from
the date of acquisition thereof;
(f) Investments in certificates of deposit, time deposits or
banker's acceptances maturing within 365 days from the date of
acquisition thereof either (i) issued by an Acceptable Bank, or (ii)
issued by any other bank with which Parent has a banking relationship
and which is organized under the laws of the United States of America
or any State thereof, provided that the aggregate amount of the
Investments of Parent permitted by this clause (ii) shall not exceed
$10,000,000;
(g) Investments in commercial paper given the highest rating
by a credit rating agency of recognized national standing and maturing
not more than 270 days from the date of creation thereof;
(h) Investments in Repurchase Agreements;
(i) Investments in tax-exempt obligations of any state of the
United States of America, or any municipality of any such state, in
each case rated "AA" or better by S&P, "Aa2" or better by Moody's or
an equivalent rating by any other credit rating agency of recognized
national standing, provided that such obligations mature within 365
days from the date of acquisition thereof;
(j) loans or advances in the usual and ordinary course of
business to officers, directors and employees for expenses (including
moving expenses related to a transfer) incidental to carrying on the
business of Parent or any Subsidiary of Parent; and
(k) Investments in the shares of registered investment
companies commonly known as "money market funds", provided that the
aggregate net asset value of any such investment company shall be
$1,000,000,000 or more and the investment policies of such investment
companies shall limit them to Money Market Instruments.
As of any date of determination, each Restricted Investment shall be
valued at the greater of:
(x) the amount at which such Restricted Investment is shown
on the books of Parent or any of its Subsidiaries (or zero if such
Restricted Investment is not shown on any such books); and
(y) either
(i) in the case of any guaranty of the obligation of
any Person, the amount which Parent or any of its
Subsidiaries has paid on account of such obligation less any
recoupment by Parent or such Subsidiary of any such payments,
or
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(ii) in the case of any other Restricted Investment,
the excess of:
(x) the greater of (A) the amount
originally entered on the books of Parent or any of
its Subsidiaries with respect thereto and (B) the
cost thereof to Parent or its Subsidiary over
(y) any return of capital (after income
taxes applicable thereto) upon such Restricted
Investment through the sale or other liquidation
thereof or part thereof or otherwise.
"Restricted Payments" means (a) any direct or indirect Distribution,
dividend or other payment on account of any equity interest in, or shares of
capital stock or other securities of, Parent or any of its Subsidiaries; and
(b) any management, consulting or other similar fees, or any interest thereon,
payable by Parent or any of its Subsidiaries to any Affiliate of Parent, or to
any other Person other than an unrelated third party.
"Rights" means rights, remedies, powers, and privileges.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw
Hill, Inc.
"Sale-and-Leaseback" means a transaction or series of transactions
pursuant to which Parent or any Subsidiary of Parent shall sell or transfer to
any Person (other than Parent or a Wholly-Owned Subsidiary) any Property,
whether now owned or hereafter acquired, which, at the time of such transaction
has been owned for more than 180 days by Parent or such Subsidiary of Parent,
and, as part of the same transaction or series of transactions, Parent or such
Subsidiary of Parent shall rent or lease as lessee, or similarly acquire the
right to possession or use of, such Property or one or more properties which it
intends to use for the same purpose or purposes as such Property for a term of
thirty-six months or longer.
"Senior Holder (1996 Series)" means each Person named on Schedule
4.08-a under the "Note Purchase Agreement (1996 Series)" heading, and each
permitted successor and assign.
"Senior Holder (1998 Series)" means each Person named on Schedule
4.08-a under the "Note Purchase Agreement (1998 Series)" heading, and each
permitted successor and assign.
"Senior Note Papers" means each Note Purchase Agreement, each Senior
Note, all guaranties executed by any Person guaranteeing payment of any portion
of the obligations of any Person under any Note Purchase Agreement or Senior
Note; all promissory notes evidencing any portion of the obligations under any
Note Purchase Agreement or Senior Note; assignments, security agreements,
pledge agreements, mortgages, deeds of trust, financing statements, collateral
assignments, and other documents and instruments granting an interest in any
collateral, or related to the perfection and/or the transfer thereof; and all
other documents, instruments, agreements or certificates executed or delivered
by Parent or any other Person, as security for any Person's obligations
thereunder; as each such document shall be amended, extended, or restated.
"Senior Notes" means each note issued pursuant to each Note Purchase
Agreement.
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"Single Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, other than a Multiple Employer Plan of Parent.
"Solvent" means, with respect to any Person, that on such date (a) the
fair value of the Property of such Person is greater than the total amount of
liabilities, including without limitation Contingent Liabilities of such
Person, (b) the present fair salable value of the assets of such Person is not
less than the amount that will be required to pay the probable liability of
such Person on its debts as they become absolute and matured, (c) such Person
does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay as such debts and liabilities
mature, and (d) such Person is not engaged in business or a transaction, and is
not about to engage in business or a transaction, for which such Person's
Property would constitute an unreasonably small capital.
"Special Counsel" means the law firm of Donohoe, Jameson & Carroll,
P.C., Dallas, Texas, or such other individual or firm acting as special counsel
to Agent.
"Specified Percentage" means (a) with respect to any Domestic Lender,
a fraction (expressed as a percentage), the numerator of which shall be the
Dollar amount of such Domestic Lender's portion of the Domestic Commitment and
the denominator of which shall be the total Domestic Commitment, (b) with
respect to any Canadian Lender, a fraction (expressed as a percentage), the
numerator of which shall be the Canadian Dollar amount of such Canadian
Lender's portion of the Canadian Commitment and the denominator of which shall
be the total Canadian Commitment, in each case such percentage indicated beside
its name on Schedule 1.01, or as adjusted or specified in any Assignment and
Acceptance, and with respect to the use of the term "Ratable" for the overall
Commitment, as distinguished from the Domestic Commitment and the Canadian
Commitment herein, a fraction (expressed as a percentage), the numerator of
which shall be each Lender's allocated amount as set forth on Schedule 1.01
under Specified Percentage and the denominator of which is $100,000,000.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, trust or estate of which (or in which) 50% or more of:
(a) the outstanding capital stock having voting power to
elect a majority of the Board of Directors of such corporation
(irrespective of whether at the time capital stock of any other class
or classes of such corporation shall or might have voting power upon
the occurrence of any contingency),
(b) the interest in the capital or profits of such
partnership or joint venture, or
(c) the beneficial interest of such trust or estate,
is at the time directly or indirectly owned by such Person, by such
Person and one or more of its Subsidiaries or by one or more of such
Person's Subsidiaries.
"Swap Exposure" means the maximum amount of credit exposure under a
Hedge Agreement, as determined by Agent or Canadian Agent, as the case may be,
as at the date of determination.
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"Taxes" means all taxes, assessments, imposts, fees, or other charges
at any time imposed by any Laws or Tribunal.
"Transfer" means, with respect to any Person, any transaction in which
such Person sells, conveys, transfers or leases (as lessor) any of its
Property.
"Tribunal" means any state, commonwealth, federal, foreign,
territorial, provincial, municipal, or other court or government body,
subdivision, agency, department, commission, board, bureau, or instrumentality
of a governmental body.
"Type" refers to the distinction between Advances bearing interest at
the Base Rate, the LIBOR Rate, the Canadian Prime Rate, and the U.S. Base Rate.
"UCC" means the Uniform Commercial Code as adopted in the State of
Texas on the Effective Date.
"United States Governmental Security" means any direct obligation of,
or obligation guaranteed by, the United States of America, or any agency
controlled or supervised by or acting as an instrumentality of the United
States of America pursuant to authority granted by the Congress of the United
States of America, so long as such obligation or guarantee shall have the
benefit of the full faith and credit of the United States of America which
shall have been pledged pursuant to authority granted by the Congress of the
United States of America.
"U.S. Base Rate" means the variable rate of interest quoted by the
Canadian Agent from time to time as the reference rate of interest which it
employs to determine the interest rate it will charge for demand loans in U.S.
dollars to its customers in Canada and which it designates as its "U.S. Base
Rate".
"U.S. Base Rate Advance" means a Canadian Advance bearing interest at
the U.S. Base Rate.
"Wholly-Owned Subsidiary" means, at any time, any Person 100% of all
of the equity interests (except directors' qualifying shares) and voting
interests of which are owned by (a) Parent, (b) any Person 100% of all of the
equity interests (except directors' qualifying shares) and voting interests of
which are owned by Parent, or (c) Parent and any one or more Persons described
in clause (b).
"Withdrawal Liability" has the meaning given such term under Part I of
Subtitle E of Title IV of ERISA.
"Year 2000 Compliance" means, with respect to a Person, that all
computer hardware and software that are material to the business and operations
of such Person taken as a whole and over which such Person has sole and direct
control will on a timely basis be able to perform properly date- sensitive
functions for all dates before and after September 9, 1999, including functions
with respect to any leap year.
1.02. Accounting and Other Terms. All accounting terms used in this
Agreement which are not otherwise defined herein shall be construed in
accordance with GAAP consistently applied
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on a consolidated basis for Parent and its Subsidiaries, unless otherwise
expressly stated herein. References herein to one gender shall be deemed to
include all other genders. Except where the context otherwise requires, (a)
definitions imparting the singular shall include the plural and vice versa and
(b) unless otherwise noted, all references to time are deemed to refer to
Dallas time or to Calgary, Alberta time with respect to the Canadian
Commitment.
ARTICLE II. AMOUNTS AND TERMS OF ADVANCES
2.01. The Advances.
(a) Each Domestic Lender severally agrees, on the terms and subject
to the conditions hereinafter set forth, to make Domestic Advances to Parent on
any Business Day during the period from the Effective Date to the Maturity
Date, in an aggregate principal amount not to exceed at any time outstanding
such Lender's Specified Percentage of the Domestic Commitment. Subject to the
terms and conditions of this Agreement, Parent may borrow, repay, and reborrow
the Domestic Advances; provided, however, that immediately after giving effect
to each Advance pursuant to this Section 2.01, the sum of the aggregate
principal amount of the outstanding Domestic Advances and Reimbursement
Obligations with respect to Domestic Letters of Credit shall at no time exceed
the Domestic Commitment.
(b) Each Canadian Lender severally agrees, on the terms and subject
to the conditions hereinafter set forth, including without limitation, Section
2.18 to make Canadian Advances to CA Canada on any Business Day during the
period from the Effective Date to the Maturity Date, in an aggregate principal
amount not to exceed at any time outstanding such Lender's Specified Percentage
of the Canadian Commitment. Subject to the terms and conditions of this
Agreement, CA Canada may borrow, repay, and reborrow the Canadian Advances;
provided, however, that immediately after giving effect to each Advance
pursuant to this Section 2.01, the sum of the aggregate principal amount of the
outstanding Canadian Advances and Reimbursement Obligations with respect to the
Canadian Letters of Credit shall at no time exceed the Canadian Commitment.
(c) Notwithstanding anything contained in this Section 2.01, the sum
of the aggregate principal amount of the outstanding Advances and Reimbursement
Obligations shall at no time exceed the Borrowing Base.
2.02. Making Advances.
(a) Each Borrowing of Advances or rollover or conversion of Canadian
Advances (where permitted hereunder) shall be made upon the written notice of
Parent with respect to Domestic Advances and CA Canada with respect to Canadian
Advances or the rollover or conversion of Canadian Advances (where permitted
hereunder), (i) received by Agent not later than 10:00 a.m. two Business Days
prior to the date of the proposed Borrowing, in the case of LIBOR Advances;
(ii) received by Agent not later than 10:00 a.m. on the date of such Borrowing,
in the case of Base Advances; (iii) received by Canadian Agent no later than
10:00 a.m. Calgary, Alberta, Canada time on the second Business Day immediately
preceding the drawdown date or the date of rollover or conversion, as
applicable, with respect to a drawdown, rollover or conversion of or into a
Bankers' Acceptance; and (iv) received by Canadian Agent no later than
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10:00 a.m., Calgary, Alberta, Canada time on the drawdown date or the date of
rollover or conversion, as applicable, in the case of all other Canadian
Advances. Each such notice of a Borrowing (a "Borrowing Notice") shall be
irrevocable and shall be by telecopy or telephone, promptly confirmed by
letter, in substantially the form of Exhibit D specifying therein:
(i) the date of such proposed Borrowing, or rollover
or conversion, which shall be a Business Day;
(ii) the specific details of any rollover or
conversion permitted hereunder which CA Canada may be requesting;
(iii) the Type of Advances of which the Borrowing is
to be comprised;
(iv) the amount of such proposed Borrowing which
shall (A) not exceed the unused portion of the Commitment, the
Domestic Commitment or the Canadian Commitment, (B) not, when added to
the sum of the aggregate principal amount of all outstanding Advances
and Reimbursement Obligations, exceed the Borrowing Base, (C) in the
case of a Borrowing of Base Advances, Canadian Prime Rate Advances, or
U.S. Base Rate Advances, be in an amount of not less than $500,000 or
an integral multiple of $100,000 in excess thereof of the respective
currencies in which the proposed Borrowings are to be made, and (D) in
the case of a Borrowing of LIBOR Advances, or Bankers' Acceptances, be
in an amount of not less than $1,000,000 or an integral multiple of
$100,000 in excess thereof; and
(v) if the Borrowing is to be comprised of LIBOR
Advances, or Bankers' Acceptances, the duration of the initial
Interest Period applicable to such Advances.
If the Borrowing Notice fails to specify the duration of the initial
Interest Period for any Borrowing comprised of LIBOR Advances or Bankers'
Acceptances, such Interest Period shall be one month. Agent or Canadian Agent,
as the case may be, shall promptly notify Lenders of each such notice. Each
Domestic Lender shall, before 1:00 p.m. on the date of each Domestic Advance
hereunder (other than a Refinancing Advance), make available to Agent, at its
office at NationsBank Plaza, 901 Main Street, Dallas, Texas 75202, such
Lender's Specified Percentage of the aggregate Domestic Advances to be made on
that day in immediately available Dollar funds. Each Canadian Lender shall,
before 1:00 p.m. Calgary, Alberta, Canada time, on the date of each Canadian
Advance hereunder make available to Canadian Agent, at its office at the
Canadian Imperial Bank of Commerce, 855 2nd Street S.W., 10th Floor, Calgary,
AB T2P 2P2, such Lender's Specified Percentage of the aggregate Canadian
Advances to be made on that day in immediately available Canadian Dollar or
Dollar funds (as applicable).
(b) Unless any applicable condition specified in Article III has not
been satisfied, Agent will make the funds promptly available to Parent (other
than with respect to a Refinancing Advance) by crediting the account number
1292833788 of Parent on the books of Agent or such other account as shall have
been specified by Parent.
(c) Unless any applicable condition specified in Article III has not
been satisfied, Canadian Agent will make the funds promptly available to CA
Canada by crediting the account
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number 2115018, Transit No. 9 of CA Canada on the books of Canadian Agent or
such other account as shall have been specified by CA Canada.
(d) After giving effect to any Borrowing, (i) there shall not be
more than five different Interest Periods in effect, and (ii) the sum of the
aggregate principal amount of all outstanding Advances and Reimbursement
Obligations shall not exceed the lesser of (A) the Commitment and (B) the
Borrowing Base.
(e) No Interest Period shall extend beyond the Maturity Date.
(f) Unless a Lender shall have notified Agent prior to the date of
any Advance that it will not make available its Specified Percentage of any
Domestic Advance, Agent may assume that such Lender has made the appropriate
amount available in accordance with Section 2.02(a), and Agent may, in reliance
upon such assumption, make available to Parent a corresponding amount. If and
to the extent any Lender shall not have made such amount available to Agent,
such Lender and Parent severally agree to repay to Agent immediately on demand
such corresponding amount together with interest thereon, from the date such
amount is made available to Parent until the date such amount is repaid to
Agent, at (i) in the case of Parent, the Base Rate, and (ii) in the case of
such Lender, the Federal Funds Rate.
(g) Unless a Lender shall have notified Canadian Agent prior to the
date of any Canadian Advance that it will not make available its Specified
Percentage of any Canadian Advance, Canadian Agent may assume that such Lender
has made the appropriate amount available in accordance with Section 2.02(a),
and Canadian Agent may, in reliance upon such assumption, make available to CA
Canada a corresponding amount. If and to the extent any Lender shall not have
made such amount available to Canadian Agent, such Lender and Borrowers
severally agree to repay to Canadian Agent immediately on demand such
corresponding amount together with interest thereon, from the date such amount
is made available to CA Canada until the date such amount is repaid to Canadian
Agent at the Canadian Prime Rate.
(h) The failure by any Lender to make available its Specified
Percentage of any Advance hereunder shall not relieve any other Lender of its
obligation, if any, to make available its Specified Percentage of any Advance.
In no event, however, shall Agent or any Lender be responsible for the failure
of any other Lender to make available any portion of any Advance.
(i) Borrowers shall indemnify each Lender against any Consequential
Loss incurred by each Lender as a result of (i) any failure to fulfill, on or
before the date specified for the Advance, the conditions to the Advance set
forth herein or (ii) Borrowers' requesting that an Advance not be made on the
date specified in the Borrowing Notice.
2.03. Evidence of Indebtedness.
(a) The Advances made by each Lender shall be evidenced by a Note in
the amount of such Lender's Specified Percentage of the Domestic Commitment or
the Canadian Commitment, as the case may be, in effect on the Effective Date
(as the same may be modified pursuant to Section 9.04).
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(b) Absent manifest error, Agent's, Canadian Agent's and each
Lenders' records shall be conclusive as to amounts owed Agent, Canadian Agent
and each such Lender under the Notes and this Agreement.
2.04. Prepayments.
(a) Parent or CA Canada may, upon at least three Business Days prior
written notice to Agent or Canadian Agent (as applicable) stating the proposed
date and aggregate principal amount of the prepayment, prepay the outstanding
principal amount of any Advances in whole or in part, together with accrued
interest to the date of such prepayment on the principal amount prepaid without
premium or penalty other than any Consequential Loss; provided, however, that
in the case of a prepayment of a Base Advance, the notice of prepayment may be
given by telephone by 11:00 a.m. on the date of prepayment, and in the case of
a prepayment of a Canadian Prime Rate Advance or a U.S. Base Rate Advance, the
notice of prepayment may be given by CA Canada to the Canadian Agent by
telephone by 11:00 a.m. Calgary, Alberta, Canada time, on the date of
prepayment. Each partial prepayment shall, in the case of LIBOR Advances, be in
an aggregate principal amount of not less than $1,000,000 or an integral
multiple of $100,000 in excess thereof, in the case of Base Advances, Canadian
Prime Rate Advances, or U.S. Base Rate Advances, be in an aggregate principal
amount of not less than $1,000,000 or an integral multiple of $100,000 in
excess thereof of the respective currencies in which the loans are made, and,
in the case of Bankers' Acceptances, be in the full principal amount of the
Bankers' Acceptance, in Canadian Dollars. If any notice of prepayment is given,
the principal amount stated therein, together with accrued interest on the
amount prepaid and the amount, if any, due under Section 2.11, shall be due and
payable on the date specified in such notice.
(b) If at any time the sum of the aggregate principal amount of all
outstanding Advances and Reimbursement Obligations exceeds the lesser of (i) the
Commitment and (ii) the Borrowing Base, Borrowers shall immediately prepay
Advances then outstanding in the aggregate amount equal to such excess, together
with accrued interest to the date of such prepayment on the principal amount
prepaid without premium or penalty other than any Consequential Loss. Any
prepayment of Advances pursuant to this Section 2.04(b) shall be applied on a
Pro Rata basis with respect to the amounts of Advances outstanding under the
Domestic Commitment and the Canadian Commitment. Each of the Agent and the
Canadian Agent shall determine the application of such prepayment in its
discretion.
(c) If at any time the sum of the aggregate principal amount of all
outstanding Domestic Advances and Reimbursement Obligations related to Domestic
Letters of Credit exceeds the Domestic Commitment, Parent shall immediately
prepay Domestic Advances then outstanding in the aggregate amount equal to such
excess, together with accrued interest to the date of such prepayment on the
principal amount prepaid without premium or penalty other than any Consequential
Loss. Any prepayment of Domestic Advances pursuant to this Section 2.04(c) shall
be applied to the Domestic Commitment, as the Agent shall determine it its
discretion.
(d) If at any time the sum of the aggregate principal amount of all
outstanding Canadian Advances and Reimbursement Obligations related to Canadian
Letters of Credit exceeds the Canadian Commitment, CA Canada shall immediately
prepay Canadian Advances then outstanding in the aggregate amount equal to such
excess, together with accrued interest to the date of such prepayment on the
principal amount prepaid without premium or penalty other than
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any Consequential Loss. Any prepayment of Canadian Advances pursuant to this
Section 2.04(d) shall be applied among the Types of Canadian Advances then
outstanding in the Canadian Agent's discretion.
(e) No prepayments of Advances made solely pursuant to this Section
2.04 shall cause the Commitment to be reduced, except as specifically provided
in Section 2.04(f).
(f) Parent shall reduce the Domestic Commitment and prepay the
aggregate principal amount of all outstanding Domestic Advances by the amount
by which ABN's portion of the Domestic Commitment is reduced pursuant to
Section 2.17(a). Once prepaid pursuant to this subsection, such amount may not
be reborrowed under the Domestic Commitment.
2.05. Repayment. Borrowers shall repay to Agent and Canadian Agent for
the Ratable account of Lenders the outstanding principal amount of the Advances
on the Maturity Date. The principal amount of each LIBOR Advance or Bankers'
Acceptance is due and payable on the last day of the applicable Interest
Period, which principal payment may be made by means of a Refinancing Advance
(subject to the other provisions of this Agreement). If on the date of a
reduction of the Commitment pursuant to Section 2.10, the sum of the aggregate
principal amount of all Advances and Reimbursement Obligations outstanding on
the date of such reduction exceeds the Commitment as reduced, the outstanding
principal of all Advances equal to such excess shall be due and payable, which
principal payment may not be made by means of a Refinancing Advance. If
pursuant to any Senior Note Paper Parent is required to prepay or repay any
amount evidenced by a Senior Note (other than a scheduled, mandatory prepayment
or repayment), Parent shall, on the same date as the prepayment or repayment
with respect to such Senior Note, pay to Agent and Canadian Agent for the
Ratable account of Lenders an amount equal to such prepayment or repayment of
such Senior Note, which principal payment may not be made by means of a
Refinancing Advance. Any repayment of Advances pursuant to this Section 2.05
shall be applied on a Pro Rata basis with respect to the amounts of Advances
outstanding under the Domestic Commitment and the Canadian Commitment. Each of
the Agent and the Canadian Agent shall determine the application of such
prepayment in its discretion.
2.06. Interest. Subject to Sections 2.07 and 9.09, Borrowers shall pay
interest on the unpaid principal amount of each Advance from the date of such
Advance until such principal shall be paid in full, at the following rates per
annum:
(a) Base Rate, Canadian Prime Rate, and U.S. Base Advances.
Base Rate, Canadian Prime Rate, and U.S. Base Rate Advances shall bear
interest at a rate per annum equal to the lesser of (i) the Base Rate,
the U.S. Base Rate, or the Canadian Prime Rate, as the case may be, in
effect from time to time and (ii) the Highest Lawful Rate. If the
amount of interest payable in respect of any interest computation
period is reduced to the Highest Lawful Rate pursuant to the
immediately preceding sentence and the amount of interest payable in
respect of any subsequent interest computation period would be less
than the Maximum Amount, then the amount of interest payable in
respect of such subsequent interest computation period shall be
automatically increased to the Maximum Amount; provided that at no
time shall the aggregate amount by which interest paid has been
increased pursuant to this sentence exceed the aggregate amount by
which interest has been reduced pursuant to the immediately preceding
sentence. Section 2.18 sets forth other interest rate options
available for CA Canada under the Canadian Commitment.
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(b) LIBOR Advances. LIBOR Advances shall bear interest at the
rate per annum equal to the LIBOR Rate applicable to such Advance,
which at no time shall exceed the Highest Lawful Rate.
(c) Bankers' Acceptances. Bankers' Acceptances shall bear
interest in accordance with the provisions of Section 2.18.
(d) Payment Dates. Accrued and unpaid interest on Base
Advances, Canadian Prime Rate Advances and U.S. Base Rate Advances
shall be paid quarterly in arrears on each Quarterly Date, on the date
of any prepayment or repayment of such Advance, and on the Maturity
Date. Accrued and unpaid interest in respect of each LIBOR Advance
shall be paid on the last day of the appropriate Interest Period and
on the date of any prepayment or repayment of such Advance; provided,
however, that if any Interest Period for a LIBOR Advance exceeds three
months, interest shall also be paid on the date which falls three
months after the beginning of such Interest Period. Stamping fees on
Bankers' Acceptances are payable upon acceptance.
2.07. Default Interest. During the continuation of any Event of
Default, Borrowers shall pay, on demand, interest (after as well as before
judgment to the extent permitted by Law) on the principal amount of all
Advances outstanding and on all other Obligations due and unpaid hereunder for
each Advance equal to the lesser of the (a) the Highest Lawful Rate and (b) a
rate per annum which is determined by increasing the greatest applicable
interest rate for each Type of Advance (whether or not in effect) by 4.00% per
annum for the principal amount of the Advances outstanding and at a rate per
annum equal to the Base Rate, U.S. Base Rate, or Canadian Prime Rate, as the
case may be (whether or not in effect) plus 4.00% for any other Obligations due
hereunder.
2.08. Continuation and Conversion Elections for Domestic Advances.
(a) Parent may upon irrevocable written notice to Agent and subject
to the terms of this Agreement:
(i) elect to convert, on any Business Day, all or any
portion of outstanding Base Advances (in an aggregate amount not less
than $500,000 or an integral multiple of $100,000 in excess thereof)
into LIBOR Advances; or
(ii) elect to convert at the end of any Interest Period
therefor, all or any portion of outstanding LIBOR Advances comprised
in the same Borrowing (in an aggregate amount not less than $500,000
or an integral multiple of $100,000 in excess thereof) into Base
Advances; or
(iii) elect to continue, at the end of any Interest
Period therefor, any LIBOR Advances;
provided, however, that if the aggregate amount of outstanding LIBOR
Advances comprised in the same Borrowing shall have been reduced as a result of
any payment, prepayment or conversion of part thereof to an amount less than
$1,000,000, the LIBOR Advances comprised
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in such Borrowing shall automatically convert into Base Advances at the end of
each respective Interest Period.
(b) Parent shall deliver a notice of conversion or continuation (a
"Conversion or Continuation Notice"), in substantially the form of Exhibit E,
to Agent not later than 10:00 a.m. (i) three Business Days prior to the
proposed date of conversion or continuation, if the Advances or any portion
thereof are to be converted into or continued as LIBOR Advances; and (ii) not
later than 10:00 a.m. on the Business Day of the proposed conversion, if the
Advances or any portion thereof are to be converted into Base Advances.
Each such Conversion or Continuation Notice shall be by telecopy or
telephone, promptly confirmed by letter, specifying therein:
(i) the proposed date of conversion or continuation;
(ii) the aggregate amount of Advances to be converted
or continued;
(iii) the nature of the proposed conversion or
continuation; and
(iv) the duration of the applicable Interest Period.
(c) If, upon the expiration of any Interest Period applicable to
LIBOR Advances, Parent shall have failed to select a new Interest Period to be
applicable to such LIBOR Advances or if an Event of Default shall then have
occurred and be continuing, Parent shall be deemed to have elected to convert
such LIBOR Advances into Base Advances effective as of the expiration date of
such current Interest Period.
(d) Notwithstanding any other provision contained in this Agreement,
after giving effect to any conversion or continuation of any Advances, there
shall not be outstanding Advances with more than five different Interest
Periods and no Interest Period shall extend beyond the Maturity Date.
2.09. Fees.
(a) Commitment Fee. Subject to Section 9.09, Borrowers shall pay to
Agent for the Ratable account of Domestic Lenders a commitment fee (determined
for the period ending on a Quarterly Date or the Maturity Date, as appropriate,
and beginning on the Effective Date (with respect to the initial calculation
period) or the preceding Quarterly Date) on the average daily amount of the
difference between (A) the Domestic Commitment and (B) the sum of all
outstanding Domestic Advances and Reimbursement Obligations with respect to
Letters of Credit, at the applicable rate per annum set forth in the table in
the definition of Applicable Margin, payable in arrears on each Quarterly Date
and on the Maturity Date, commencing with the first Quarterly Date after the
Effective Date. Subject to Section 9.09, Borrowers shall pay to Canadian Agent
for the Ratable account of Canadian Lenders a commitment fee (determined for
the period ending on a Quarterly Date or the Maturity Date, as appropriate, and
beginning on the Effective Date (with respect to the initial calculation
period) or the preceding Quarterly Date) on the average daily amount of the
difference between (A) the Canadian Commitment and (B) the sum of all
outstanding Canadian Advances and Reimbursement Obligations with respect to
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Canadian Letters of Credit, at the applicable rate per annum set forth in the
table in the definition of Applicable Margin, payable in arrears on each
Quarterly Date and on the Maturity Date, commencing with the first Quarterly
Date after the Effective Date.
(b) L/C Issuance Fee. Subject to Section 9.09, Parent shall pay to
Agent for the sole account of Issuing Bank a fee at the rate of .125% of the
undrawn face amount of each Letter of Credit, payable in advance on the date of
issuance of such Letter of Credit.
(c) L/C Commission Fee. Subject to Section 9.09, Parent shall pay to
Agent for the Ratable account of Domestic Lenders a fee on the average daily
undrawn amount of all Letters of Credit, at the rate per annum equal to
then-current Applicable Margin for LIBOR Advances, payable in arrears on each
Quarterly Date and on the Maturity Date, commencing with the first Quarterly
Date after the Effective Date.
(d) L/C Administration Fees. Subject to Section 9.09, Parent shall
pay to Agent for the sole account of Issuing Bank the standard charges assessed
by Issuing Bank in connection with the administration (including any drawings)
and amendment of Letters of Credit.
(e) Canadian L/C Issuance Fee. Subject to Section 9.09, CA Canada
shall pay to Canadian Agent for the sole account of Canadian Issuing Bank a fee
at the rate of .125% of the undrawn face amount of each Canadian Letter of
Credit, payable in advance on the date of issuance of such Canadian Letter of
Credit.
(f) Canadian L/C Commission Fee. Subject to Section 9.09, CA Canada
shall pay to Canadian Agent for the Ratable account of Canadian Lenders a fee
on the average daily undrawn amount of all Canadian Letters of Credit, at the
rate per annum equal to then-current Applicable Margin for Bankers'
Acceptances, payable in arrears on each Quarterly Date and on the Maturity
Date, commencing with the first Quarterly Date after the Effective Date.
(g) Canadian L/C Administration Fees. Subject to Section 9.09, CA
Canada shall pay to Canadian Agent for the sole account of Canadian Issuing
Bank the standard charges assessed by Canadian Issuing Bank in connection with
the administration (including any drawings) and amendment of Canadian Letters
of Credit.
2.10. Reduction of Commitment.
(a) The Commitment terminates on the Maturity Date.
(b) Borrowers may from time to time, upon notice to Agent or
Canadian Agent, as the case may be, not later than 1:00 p.m., five Business
Days in advance, terminate in whole or reduce in part either the Domestic
Commitment or the Canadian Commitment; provided, however, that Borrowers shall
pay the accrued interest and the Commitment Fee on the amount of such reduction
and all amounts due under Section 2.11, and any partial reduction shall be in
an aggregate amount which is an integral multiple of $5,000,000 of the
respective currencies in which the Commitment is denominated.
(c) To the extent the sum of the aggregate principal amount of
outstanding Advances and Reimbursement Obligations exceeds the Commitment after
any reduction thereof, Borrowers
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shall repay, on the date of such reduction, the amount specified in Section
2.04(b). The Commitment shall be reduced by the amount of any repayment
required by the fourth sentence of Section 2.05. Once reduced or terminated,
the Commitment may not be increased or reinstated.
2.11. Funding Losses. Borrower may prepay the outstanding principal
balance of any Advance, in full at any time or in part from time to time,
provided, that as conditions precedent to Borrowers' right to make, and any
Lender's obligation to accept, any such prepayment: (a) Agent shall have
actually received from Parent at least five Business Days' prior written notice
of Parent's intent to prepay the LIBOR Advances, of the amount of principal
which will be prepaid and of the date on which the prepayment will be made; (b)
Canadian Agent shall have actually received from CA Canada at least five
Business Days' prior written notice of CA Canada's intent to prepay a Bankers'
Acceptance in whole and of the date on which the prepayment will be made; (c)
each prepayment of principal of LIBOR Advances shall be in the amount of
$1,000,000 or a larger integral multiple of $100,000 (unless the prepayment
retires the outstanding balance of outstanding Advances in full); (d) each
prepayment of a Bankers' Acceptance shall be in the full principal amount of the
Bankers' Acceptance expressed in Canadian Dollars; (e) each prepayment of
Canadian Prime Rate Advances, U.S. Base Rate Advances, or Base Rate Advances of
principal shall be in the amount of $1,000,000 or a larger integral multiple of
$100,000, expressed in Dollars with respect to Base Advances and U.S. Base Rate
Advances and expressed in Canadian Dollars with respect to Canadian Prime Rate
Advances (unless the prepayment retires the outstanding balance of outstanding
Advances in full); and (f) each such prepayment shall be in the amount of 100%
of the principal amount to be prepaid, plus accrued unpaid interest thereon to
the date of prepayment, plus any other sums which have become due to Agent,
Canadian Agent and Lenders under the Loan Papers on or before the prepayment
date but have not been paid, and (subject to Section 9.09) any Consequential
Loss. A certificate of each Lender setting forth the basis for the determination
of the amount of the Consequential Loss shall be delivered to Borrowers and
shall be conclusive in the absence of manifest error.
Borrowers agree that each Lender is not obligated to actually reinvest
the amount prepaid in any specific obligation as a condition to receiving any
Consequential Loss, or otherwise.
2.12. Computations and Manner of Payments.
(a) Parent shall make each payment hereunder and under the other
Loan Papers not later than 1:00 p.m. on the day when due in same day funds to
Agent, for the Ratable account of Domestic Lenders unless otherwise
specifically provided herein, at Agent's office at NationsBank Plaza, 901 Main
Street, Dallas, Texas 75202, for further credit to the account of Cameron
Ashley Building Products, Inc. No later than the end of each day when each
payment hereunder is made, Parent shall notify Mr. Dan Killian, (214) 508-0978,
or such other Person as Agent may from time to time specify.
(b) Unless Agent shall have received notice from Parent prior to the
date on which any payment is due hereunder that Parent will not make payment in
full, Agent may assume that such payment is so made on such date and may, in
reliance upon such assumption, make distributions to Domestic Lenders. If and
to the extent Parent shall not have made such payment in full, each Domestic
Lender shall repay to Agent forthwith on demand the applicable amount
distributed, together with interest thereon at the Federal Funds Rate, from the
date of distribution until the date of repayment. Borrowers hereby authorize
each Lender, if and to the extent payment is not
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made when due hereunder, to charge the amount so due against any account of
either of Borrowers with such Lender.
(c) CA Canada shall make each payment hereunder and under the other
Loan Papers not later than 1:00 p.m. on the day when due in same day funds to
Canadian Agent, for the Ratable account of Canadian Lenders unless otherwise
specifically provided herein, at Canadian Agent's office at the Canadian
Imperial Bank of Commerce, 309 - 8th Avenue S.W., 3rd Floor, Calgary, AB, T2P
2P2, for further credit to the account of Cameron Ashley-Canada, Inc. No later
than the end of each day when each payment hereunder is made, CA Canada shall
notify Susan Loberg, (403) 221-5352, or such other Person as Canadian Agent may
from time to time specify.
(d) Unless Canadian Agent shall have received notice from CA Canada
prior to the date on which any payment is due hereunder that CA Canada will not
make payment in full, Canadian Agent may assume that such payment is so made on
such date and may, in reliance upon such assumption, make distributions to
Canadian Lenders. If and to the extent CA Canada shall not have made such
payment in full, each Canadian Lender shall repay to Canadian Agent forthwith
on demand the applicable amount distributed, together with interest thereon at
the Canadian Prime Rate, from the date of distribution until the date of
repayment. Borrowers hereby authorize each Lender, if and to the extent payment
is not made when due hereunder, to charge the amount so due against any account
of either of Borrowers with such Lender.
(e) Subject to Section 2.18 and Section 9.09, interest on LIBOR
Advances, Base Advances, the Commitment Fee, each other fee, and other amounts
due under the Loan Papers shall be calculated on the basis of actual days
elapsed but computed as if each year consisted of 360 days. Such computations
shall be made including the first day but excluding the last day occurring in
the period for which such interest, payment, Commitment Fee, or other fee is
payable. Each determination by Agent, Canadian Agent, or a Lender of an
interest rate, fee or commission hereunder shall be conclusive and binding for
all purposes, absent manifest error. All payments under the Loan Papers shall
be made in Dollars with respect to Domestic Advances, U.S. Base Rate Advances,
and Reimbursement Obligations related thereto, and in Canadian Dollars with
respect to Canadian Prime Rate Advances, Bankers' Acceptances, and
Reimbursement Obligations related thereto, and without setoff, counterclaim, or
other defense.
(f) Whenever any payment to be made hereunder or under any other
Loan Papers shall be stated to be due on a day other than a Business Day, such
payment shall be made on the next succeeding Business Day, and such extension
of time shall be included in the computation of interest or fees, if
applicable; provided, however, if such extension would cause payment of
interest on or principal of LIBOR Advances or Bankers' Acceptances to be made
in the next following calendar month, such payment shall be made on the next
preceding Business Day.
(g) Reference to any particular index or reference rate for
determining any applicable interest rate under this Agreement is for purposes
of calculating the interest due and is not intended as and shall not be
construed as requiring any Lender to actually obtain funds for any Advance at
any particular index or reference rate.
2.13. Yield Protection; Changed Circumstances.
(a) If any Lender determines that either (i) the adoption, after the
date hereof, of any
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Applicable Law, rule, regulation or guideline regarding capital adequacy and
applicable to commercial banks or financial institutions generally or any
change therein, or any change, after the date hereof, in the interpretation or
administration thereof by any Tribunal, central bank or comparable agency
charged with the interpretation or administration thereof, or (ii) compliance
by any Lender (or Lending Office of any Lender) with any request or directive
made after the date hereof applicable to commercial banks or financial
institutions generally regarding capital adequacy (whether or not having the
force of law) of any such authority, central bank or comparable agency has the
effect of reducing the rate of return on such Lender's capital as a consequence
of its obligations hereunder to a level below that which such Lender could have
achieved but for such adoption, change or compliance (taking into consideration
such Lender's policies with respect to capital adequacy [but excluding
consequences of such Lender's negligence or intentional disregard of law or
regulation]) by an amount reasonably deemed by such Lender to be material, then
from time to time, within fifteen days after demand by such Lender, Borrowers
shall pay to such Lender such additional amount or amounts as will adequately
compensate such Lender for such reduction. Each Lender will notify Borrowers of
any event occurring after the date of this Agreement which will entitle such
Lender to compensation pursuant to this Section 2.13(a) as promptly as
practicable after such Lender obtains actual knowledge of such event; provided,
no Lender shall be liable for its failure or the failure of any other Lender to
provide such notification. A certificate of such Lender claiming compensation
under this Section 2.13(a), setting forth in reasonable detail the calculation
of the additional amount or amounts to be paid to it hereunder and certifying
that such claim is consistent with such Lender's treatment of similar customers
having similar provisions generally in their agreements with such Lender shall
be conclusive in the absence of manifest error. Each Lender shall use
reasonable efforts to mitigate the effect upon Borrowers of any such increased
costs payable to such Lender under this Section 2.13(a).
(b) If, after the date hereof, any Tribunal, central bank or other
comparable authority, at any time imposes, modifies or deems applicable any
reserve (including, without limitation, any imposed by the Board of Governors
of the Federal Reserve System or the Bank of Canada), special deposit or
similar requirement against assets of, deposits with or for the amount of, or
credit extended by, any Lender, or imposes on any Lender any other condition
affecting a LIBOR Advance or a Bankers' Acceptance, the Notes, or its
obligation to make a LIBOR Advance or a Bankers' Acceptance; and the result of
any of the foregoing is to increase the cost to such Lender of making or
maintaining its LIBOR Advances, or a Bankers' Acceptance or to reduce the
amount of any sum received or receivable by such Lender under this Agreement or
under the Notes by an amount deemed by such Lender, to be material, then,
within five days after demand by such Lender, Parent shall pay to such Lender
such additional amount or amounts as will compensate such Lender for such
increased cost or reduction. Each Lender will (i) notify Parent or CA Canada,
as the case may be, of any event occurring after the date of this Agreement
that entitles such Lender to compensation pursuant to this Section 2.13(b), as
promptly as practicable after such Lender obtains actual knowledge of the
event; provided, no Lender shall be liable for its failure or the failure of
any other Lender to provide such notification and (ii) use good faith and
reasonable efforts to designate a different Lending Office for LIBOR Advances
or Bankers' Acceptances of such Lender if the designation will avoid the need
for, or reduce the amount of, the compensation and will not, in the sole
opinion of such Lender, be disadvantageous to such Lender. A certificate of
such Lender claiming compensation under this Section 2.13(b), setting forth in
reasonable detail the computation of the additional amount or amounts to be
paid to it hereunder and certifying that such claim is consistent with such
Lender's treatment of similar
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customers having similar provisions generally in their agreements with such
Lender shall be conclusive in the absence of manifest error. If such Lender
demands compensation under this Section 2.13(b), Parent or CA Canada, as the
case may be, may at any time, on at least five Business Days' prior notice to
such Lender (i) repay in full the then outstanding principal amount of LIBOR
Advances, of such Lender, together with accrued interest thereon, (ii) convert
the LIBOR Advances to Base Advances in accordance with the provisions of this
Agreement, or (iii) convert the Bankers' Acceptances to either Canadian Prime
Rate Advances or U.S. Base Rate Advances in accordance with the provisions of
this Agreement; provided, however, that Parent or CA Canada, as the case may
be, shall be liable for the Consequential Loss arising pursuant to those
actions.
(c) Notwithstanding any other provision of this Agreement, if the
introduction of or any change in or in the interpretation or administration of
any Law shall make it unlawful, or any central bank or other Tribunal shall
assert that it is unlawful, for a Lender to perform its obligations hereunder
to make LIBOR Advances or to accept Bankers' Acceptances or to continue to fund
or maintain LIBOR Advances or Bankers' Acceptances hereunder, then, on notice
thereof and demand therefor by such Lender to Parent or CA Canada, as the case
may be, (i) each LIBOR Advance will automatically, upon such demand, convert
into a Base Advance, (ii) each Bankers' Acceptance will automatically, upon
such demand, convert into a Canadian Prime Rate Advance, and (iii) the
obligation of such Lender to make, or to convert Advances into, LIBOR Advances
or Bankers' Acceptances shall be suspended until such Lender notifies Agent or
Canadian Agent, as the case may be, and Parent or CA Canada, as the case may
be, that such Lender has determined that the circumstances causing such
suspension no longer exist.
(d) Upon the occurrence and during the continuance of any Default or
Event of Default, (i) each LIBOR Advance will automatically, on the last day of
the then existing Interest Period therefor, convert into a Base Advance and
(ii) the obligation of each Lender to make, or to convert Advances into, LIBOR
Advances shall be suspended.
(e) Failure on the part of any Lender to demand compensation for any
increased costs, increased capital or reduction in amounts received or
receivable or reduction in return on capital pursuant to this Section 2.13 with
respect to any period shall not constitute a waiver of any Lender's right to
demand compensation with respect to such period or any other period, subject,
however, to the limitations set forth in this Section 2.13.
(f) The obligations of Borrowers under this Section 2.13 shall
survive any termination of this Agreement.
(g) Determinations by Lenders for purposes of this Section 2.13
shall be conclusive, absent manifest error. Any certificate delivered to
Borrowers by a Lender pursuant to this Section 2.13 shall include in reasonable
detail the basis for such Lender's demand for additional compensation and a
certification that the claim for compensation is consistent with such Lender's
treatment of similar customers having similar provisions generally in their
agreements with such Lender.
(h) Notwithstanding any other provision of this Agreement, Lenders
not organized under the Laws of the United States or any State shall be
entitled to compensation pursuant to this Section 2.13 with respect to any
amount which would otherwise be due under this Section 2.13 but which is the
result of an act of a Tribunal of the country in which such Lender is
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organized.
2.14. Use of Proceeds.
(a) The proceeds of the Domestic Advances shall be available (and
Parent shall use such proceeds) solely to provide working capital to Parent,
for general corporate purposes, for the issuance of Letters of Credit and for
Permitted Acquisitions.
(b) The proceeds of the Canadian Advances shall be available (and CA
Canada shall use such proceeds) solely to provide working capital to CA Canada,
for general corporate purposes, for the issuance of Canadian Letters of Credit,
for the acquisition of assets of Boyd Distributors, a division of Ince Holdings
Ltd., and for Permitted Acquisitions.
(c) No Letter of Credit or Canadian Letter of Credit shall be issued
for the account of or otherwise used for the benefit of CAFS or any CAFS
Subsidiary and no proceeds of any Advance shall be advanced to CAFS or any CAFS
Subsidiary; provided, Parent may use proceeds of Domestic Advances to make
loans to CAFS for the purpose of CAFS making loans to a CAFS Subsidiary
permitted by Section 5.19.
2.15. Letters of Credit.
(a) The Letter of Credit Facility. Parent may request Issuing Bank,
on the terms and conditions hereinafter set forth, to issue, and Issuing Bank
shall, if so requested, issue, letters of credit (the "Letters of Credit") for
the account of Parent from time to time on any Business Day from the Effective
Date until the Maturity Date in an aggregate maximum amount (assuming
compliance with all conditions to drawing) not to exceed at any time
outstanding the lesser of (the "Letter of Credit Facility") (i) $5,000,000 and
(ii) the Domestic Commitment minus the sum of (A) the aggregate principal
amount of Domestic Advances then outstanding and (B) all Reimbursement
Obligations with respect to Domestic Letters of Credit. The Letter of Credit
Facility is a subfacility of the Domestic Commitment and is not an amount in
addition to the Domestic Commitment. No Letter of Credit shall have an
expiration (including all rights of renewal) later than the earlier of eighteen
months from the date of issuance of the Letter of Credit and the Maturity Date.
Immediately upon the issuance of each Letter of Credit, Issuing Bank shall be
deemed to have sold and transferred to each Domestic Lender, and each Domestic
Lender shall be deemed to have purchased and received from Issuing Bank, in
each case irrevocably and without any further action by any party, an undivided
interest and participation in such Letter of Credit, each drawing thereunder
and the obligations of Parent under this Agreement in respect thereof in an
amount equal to the product of such Lender's Specified Percentage of the
Domestic Commitment times the maximum amount available to be drawn under such
Letter of Credit (assuming compliance with all conditions to drawing). Within
the limits of the Letter of Credit Facility, and subject to the limits referred
to above, Parent may request the issuance of Letters of Credit under this
Section 2.15(a), repay any Advances resulting from drawings thereunder pursuant
to Section 2.15(c), and request the issuance of additional Letters of Credit
under this Section 2.15(a).
(b) Request for Issuance. Each Letter of Credit shall be issued upon
notice, given not later than 11:00 a.m. on the third Business Day prior to the
date of the proposed issuance of such Letter of Credit, by Parent to Issuing
Bank, which shall give to Agent and each Lender prompt
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notice thereof by telex, telecopier, or cable. Each Letter of Credit shall be
issued upon notice given in accordance with the terms of any separate agreement
between Parent and Issuing Bank in form and substance reasonably satisfactory
to Parent and Issuing Bank providing for the issuance of Letters of Credit
pursuant to this Agreement and containing terms and conditions not inconsistent
with this Agreement (a "Letter of Credit Agreement"); provided, that if any
such terms and conditions are inconsistent with this Agreement, this Agreement
shall control. Each such notice of issuance of a Letter of Credit (a "Notice of
Issuance") shall be by telex, telecopier, or cable, specifying therein (i) the
requested date of such issuance (which shall be a Business Day), (ii) the
maximum amount of such Letter of Credit, (iii) the expiry of such Letter of
Credit, (iv) the name and address of the beneficiary of such Letter of Credit,
(v) the form of such Letter of Credit, and (vi) such other information as shall
be required pursuant to the relevant Letter of Credit Agreement. If the
requested terms of such Letter of Credit are acceptable to Issuing Bank in its
reasonable discretion, Issuing Bank will, upon fulfillment of the applicable
conditions set forth in Article III, make such Letter of Credit available to
Parent at its office referred to in Section 9.02 or as otherwise agreed with
Parent in connection with such issuance.
(c) Drawing and Reimbursement. The payment by Issuing Bank of a
draft drawn under any Letter of Credit shall constitute for all purposes of
this Agreement the making by Issuing Bank of a Domestic Advance, which shall
bear interest at the applicable Base Rate, in the amount of such draft (but
without any requirement for compliance with the conditions set forth in Article
III). If a drawing under any Letter of Credit is not reimbursed by Parent by
11:00 a.m. on the first Business Day after such drawing, Issuing Bank shall
promptly notify Agent and each other Domestic Lender. Each such Domestic Lender
shall, on the first Business Day following such notification, make a Domestic
Advance, which shall bear interest at the applicable Base Rate, and shall be
used to repay the applicable portion of Issuing Bank's Domestic Advance with
respect to such Letter of Credit, in an amount equal to the amount of its
participation in such drawing for application to reimburse Issuing Bank (but
without any requirement for compliance with the applicable conditions set forth
in Article III) and shall make available to Agent for the account of Issuing
Bank, by deposit at Agent's office, in same day funds, the amount of such
Domestic Advance. In the event that any Domestic Lender fails to make available
to Agent for the account of Issuing Bank the amount of such Domestic Advance,
Issuing Bank shall be entitled to recover such amount on demand from such
Lender together with interest thereon at a rate per annum equal to the lesser
of (i) the Highest Lawful Rate and (ii) the Federal Funds Rate plus 0.50%.
(d) Increased Costs. If any change in any Law or in the
interpretation thereof by any Tribunal charged with the administration thereof
shall either (i) impose, modify, or deem applicable any reserve, special
deposit or similar requirement against letters of credit or guarantees issued
by, or assets held by, or deposits in or for the account of, Issuing Bank or
any Domestic Lender or (ii) impose on Issuing Bank or any Domestic Lender any
other condition regarding this Agreement or such Domestic Lender or any Letter
of Credit, and the result of any event referred to in the preceding clause (i)
or (ii) shall be to increase the cost to Issuing Bank of issuing or maintaining
any Letter of Credit or to any Domestic Lender of purchasing any participation
therein or making any Advance pursuant to Section 2.15(c), then, upon demand by
Issuing Bank or such Domestic Lender, Parent shall, subject to Section 9.09,
pay to Issuing Bank or such Domestic Lender, from time to time as specified by
Issuing Bank or such Domestic Lender, additional amounts that shall be
sufficient to compensate Issuing Bank or such Domestic Lender for such
increased cost ("Additional Letter of Credit Costs"). A certificate as to the
amount of such Additional Letter of Credit Costs, submitted to Parent by
Issuing Bank or such
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Domestic Lender, shall include in reasonable detail the basis for the demand
for additional compensation and shall be conclusive and binding for all
purposes, absent manifest error. Notwithstanding any other provision of this
Agreement, no Domestic Lender not organized under the Laws of the United States
or any State shall be entitled to compensation pursuant to this Section 2.15(d)
with respect to any amount which would otherwise be due under this Section
2.15(d) but which is the result of an act of a Tribunal of the country in which
such Lender is organized.
(e) Obligations Absolute. The obligations of Parent under this
Agreement with respect to any Letter of Credit, any Letter of Credit Agreement,
and any other agreement or instrument relating to any Letter of Credit or any
Advance pursuant to Section 2.15(c) shall be unconditional and irrevocable, and
shall be paid strictly in accordance with the terms of this Agreement, such
Letter of Credit Agreement, and such other agreement or instrument under all
circumstances, including, without limitation, the following circumstances:
(i) any lack of validity or enforceability of this
Agreement, any other Loan Paper, any Letter of Credit Agreement, any
Letter of Credit, or any other agreement or instrument relating
thereto (collectively, the "L/C Related Documents");
(ii) any change in the time, manner, or place of
payment of, or in any other term of, all or any of the Obligations of
Parent in respect of the Letters of Credit or any Advance pursuant to
Section 2.15(c) or any other amendment or waiver of or any consent to
departure from all or any of the L/C Related Documents;
(iii) the existence of any claim, set-off, defense,
or other right that Parent may have at any time against any
beneficiary or any transferee of a Letter of Credit (or any Persons
for whom any such beneficiary or any such transferee may be acting),
Issuing Bank, any Lender or any other Person, whether in connection
with this Agreement, the transactions contemplated hereby or by the
L/C Related Documents or any unrelated transaction;
(iv) any statement or any other document presented
under a Letter of Credit proving to be forged, fraudulent, invalid, or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(v) payment by Issuing Bank under a Letter of
Credit against presentation of a draft or certificate that does not
comply with the terms of the Letter of Credit, except for any payment
made upon Issuing Bank's gross negligence or willful misconduct;
(vi) any exchange, release, or non-perfection of
any collateral, or any release or amendment or waiver of or consent to
departure from any guarantee, for all or any of the Obligations of
Parent or any other Obligor in respect of the Letters of Credit or any
Advance pursuant to Section 2.15(c); or
(vii) any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing, including,
without limitation, any other circumstance that might otherwise
constitute a defense available to, or a discharge of, Parent or any
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other Obligor, other than Issuing Bank's gross negligence or willful
misconduct.
(f) L/C Cash Collateral Account.
(i) Upon the occurrence of an Event of Default and
written demand by Agent or Issuing Bank, Parent will promptly pay to
Agent in immediately available funds an amount equal to 100% of the
maximum amount then available to be drawn under the Letters of Credit
then outstanding. Any amounts so received by Agent shall be deposited
by Agent in a deposit account maintained by Issuing Bank (the "L/C
Cash Collateral Account").
(ii) As security for the payment of all
Reimbursement Obligations and for any other Obligations, upon an Event
of Default without notice or demand, Parent hereby grants, conveys,
assigns, pledges, sets over, and transfers to Agent (for the benefit
of Issuing Bank and Domestic Lenders), and creates in Agent's favor
(for the benefit of Issuing Bank and Domestic Lenders) a security
interest and pledge in, all money, instruments, and securities at any
time held in or acquired in connection with the L/C Cash Collateral
Account, together with all proceeds thereof. The L/C Cash Collateral
Account shall be under the sole dominion and control of Agent and
Parent shall have no right to withdraw or to cause Agent to withdraw
any funds deposited in the L/C Cash Collateral Account. At any time
and from time to time, upon Agent's request, Parent promptly shall
execute and deliver any and all such further instruments, and
documents, including without limitation, U.C.C. financing statements,
as may be necessary, appropriate or desirable in Agent's judgment to
obtain the full benefits (including perfection and priority) of the
security interest created or intended to be created by this Section
2.15(f)(ii) and of the rights and powers herein granted. Parent shall
not create or suffer to exist any Lien on any amounts or investments
held in the L/C Cash Collateral Account other than the Lien granted
under this Section 2.15(f)(ii).
(iii) Agent shall (A) apply any funds in the L/C
Cash Collateral Account on account of Reimbursement Obligations when
the same become due and payable if and to the extent that Parent shall
fail directly to pay such Reimbursement Obligations and (B) after the
Maturity Date, apply any proceeds remaining in the L/C Cash Collateral
Account first to pay any unpaid Obligations relating to the Domestic
Commitment then outstanding hereunder and then to refund any remaining
amount to Parent.
(iv) Parent, no more than once in any calendar
month, may direct Agent to invest the funds held in the L/C Cash
Collateral Account (so long as the aggregate amount of such funds
exceeds any relevant minimum investment requirement) in (A) direct
obligations of the United States or any agency thereof, or obligations
guaranteed by the United States or any agency thereof and (B) one or
more other types of investments permitted by Determining Lenders, in
each case with such maturities as Parent, with the consent of
Determining Lenders, may specify, pending application of such funds on
account of Reimbursement Obligations or on account of other
Obligations, as the case may be. In the absence of any such direction
from Parent, Agent shall invest the funds held in the L/C Cash
Collateral Account (so long as the aggregate amount of such funds
exceeds any relevant minimum investment requirement) in one or more
types of
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investments with the consent of Determining Lenders with such
maturities as Agent, with the consent of Determining Lenders, may
specify, pending application of such funds on account of Reimbursement
Obligations or on account of other Obligations, as the case may be.
All such investments shall be made in Agent's name for the account of
Issuing Bank and Domestic Lenders. PARENT RECOGNIZES THAT ANY LOSSES
OR TAXES WITH RESPECT TO SUCH INVESTMENTS SHALL BE BORNE SOLELY BY
PARENT, AND PARENT AGREES TO HOLD AGENT, ISSUING BANK, AND LENDERS
HARMLESS FROM ANY AND ALL SUCH LOSSES AND TAXES. Agent may liquidate
any investment held in the L/C Cash Collateral Account in order to
apply the proceeds of such investment on account of the Reimbursement
Obligations (or on account of any other Obligations then due and
payable, as the case may be) in accordance with Section 2.15(f)(iii)
without regard to whether such investment has matured and without
liability for any penalty or other fee incurred (with respect to which
Parent hereby agrees to reimburse Agent) as a result of such
application.
(v) Parent shall pay to Agent the fees customarily
charged by Issuing Bank with respect to the maintenance of accounts
similar to the L/C Cash Collateral Account.
(g) No Liability of Issuing Bank. Parent assumes all risks of the
acts or omissions of any beneficiary or transferee of any Letter of Credit with
respect to its use of such Letter of Credit. None of Agent, Issuing Bank, or any
Lender, or any of their respective officers or directors shall be liable or
responsible for: (a) the use that may be made of any Letter of Credit or any
acts or omissions of any beneficiary or transferee in connection therewith; (b)
the validity, sufficiency or genuineness of documents, or of any endorsement
thereon, even if such documents should prove to be in any or all respects
invalid, insufficient, fraudulent or forged; (c) payment by Issuing Bank against
presentation of documents that do not comply with the terms of a Letter of
Credit, including failure of any documents to bear any reference or adequate
reference to the Letter of Credit, except for any payment made upon Issuing
Bank's gross negligence or willful misconduct; or (d) any other circumstances
whatsoever in making or failing to make payment under any Letter of Credit,
except that Parent shall have a claim against Issuing Bank, and Issuing Bank
shall be liable to Parent, to the extent of any direct, but not consequential,
damages suffered by Parent that Parent proves were caused by (i) Issuing Bank's
willful misconduct or gross negligence in determining whether documents
presented under any Letter of Credit comply with the terms of the Letter of
Credit or (ii) Issuing Bank's willful failure to make lawful payment under a
Letter of Credit after the presentation to it of a draft and certificates
strictly complying with the terms and conditions of the Letter of Credit. In
furtherance and not in limitation of the foregoing, Issuing Bank may accept
documents that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary.
(h) Borrowing Base. Notwithstanding anything contained in this
Section 2.15 or Section 2.16, in no event shall the Reimbursement Obligations
outstanding under the Letter of Credit Facility and the Canadian Letter of
Credit Facility exceed the Borrowing Base.
2.16. Canadian Letters of Credit.
(a) The Canadian Letter of Credit Facility. CA Canada may request
Canadian Issuing Bank, on the terms and conditions hereinafter set forth, to
issue, and Canadian Issuing Bank shall,
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if so requested, issue, letters of credit (the "Canadian Letters of Credit")
for the account of CA Canada from time to time on any Business Day from the
Effective Date until the Maturity Date in an aggregate maximum amount (assuming
compliance with all conditions to drawing) not to exceed at any time
outstanding the lesser of (the "Canadian Letter of Credit Facility") (i)
CDN$2,000,000, and (ii) the Canadian Commitment minus the sum of (A) the
aggregate principal amount of Canadian Advances then outstanding and (B) all
Reimbursement Obligations with respect to Canadian Letters of Credit. The
Canadian Letters of Credit shall be in the standard form of the Canadian
Issuing Bank. The Canadian Letter of Credit Facility is a subfacility of the
Canadian Commitment and is not an amount in addition to the Canadian
Commitment. No Canadian Letter of Credit shall have an expiration (including
all rights of renewal) later than the earlier of eighteen months from the date
of issuance of the Canadian Letter of Credit and the Maturity Date. Immediately
upon the issuance of each Canadian Letter of Credit, Canadian Issuing Bank
shall be deemed to have sold and transferred to each Canadian Lender, and each
Canadian Lender shall be deemed to have purchased and received from Canadian
Issuing Bank, in each case irrevocably and without any further action by any
party, an undivided interest and participation in such Canadian Letter of
Credit, each drawing thereunder and the obligations of CA Canada under this
Agreement in respect thereof in an amount equal to the product of such Canadian
Lender's Specified Percentage of the Canadian Commitment times the maximum
amount available to be drawn under such Canadian Letter of Credit (assuming
compliance with all conditions to drawing). Within the limits of the Canadian
Letter of Credit Facility, and subject to the limits referred to above, CA
Canada may request the issuance of Canadian Letters of Credit under this
Section 2.16(a), repay any Advances resulting from drawings thereunder pursuant
to Section 2.16(c), and request the issuance of additional Canadian Letters of
Credit under this Section 2.16(a).
(b) Request for Issuance. Each Canadian Letter of Credit shall be
issued upon notice, given not later than 11:00 a.m. Calgary, Alberta, Canada
time on the third Business Day prior to the date of the proposed issuance of
such Canadian Letter of Credit, by CA Canada to Canadian Issuing Bank, which
shall give to Canadian Agent and each Canadian Lender prompt notice thereof by
telex, telecopier, or cable. Each Canadian Letter of Credit shall be issued
upon notice given in accordance with the terms of any separate agreement
between CA Canada and Canadian Issuing Bank in form and substance reasonably
satisfactory to CA Canada and Canadian Issuing Bank providing for the issuance
of Canadian Letters of Credit pursuant to this Agreement and containing terms
and conditions not inconsistent with this Agreement (a "Canadian Letter of
Credit Agreement"); provided, that if any such terms and conditions are
inconsistent with this Agreement, this Agreement shall control. Each such
notice of issuance of a Canadian Letter of Credit (a "Notice of Issuance")
shall be by telex, telecopier, or cable, specifying therein (i) the requested
date of such issuance (which shall be a Business Day), (ii) the maximum amount
of such Canadian Letter of Credit, (iii) the expiry of such Canadian Letter of
Credit, (iv) the name and address of the beneficiary of such Canadian Letter of
Credit, (v) the form of such Canadian Letter of Credit, and (vi) such other
information as shall be required pursuant to the relevant Canadian Letter of
Credit Agreement. If the requested terms of such Canadian Letter of Credit are
acceptable to Canadian Issuing Bank in its reasonable discretion, Canadian
Issuing Bank will, upon fulfillment of the applicable conditions set forth in
Article III, make such the Canadian Letter of Credit available to CA Canada at
its office referred to in Section 9.02 or as otherwise agreed with CA Canada in
connection with such issuance.
(c) Drawing and Reimbursement. The payment by Canadian Issuing Bank
of a draft
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drawn under any Canadian Letter of Credit shall constitute for all purposes of
this Agreement the making by Canadian Issuing Bank of a Canadian Advance, which
shall bear interest at the applicable Canadian Prime Rate, in the amount of
such draft (but without any requirement for compliance with the conditions set
forth in Article III). If a drawing under any Canadian Letter of Credit is not
reimbursed by CA Canada by 11:00 a.m. Calgary, Alberta, Canada time on the
first Business Day after such drawing, Canadian Issuing Bank shall promptly
notify Canadian Agent and each other Canadian Lender. Each such Canadian Lender
shall, on the first Business Day following such notification, make a Canadian
Advance, which shall bear interest at the applicable Canadian Prime Rate, and
shall be used to repay the applicable portion of Canadian Issuing Bank's
Canadian Advance with respect to such Canadian Letter of Credit, in an amount
equal to the amount of its participation in such drawing for application to
reimburse Canadian Issuing Bank (but without any requirement for compliance
with the applicable conditions set forth in Article III) and shall make
available to Canadian Agent for the account of Canadian Issuing Bank, by
deposit at Canadian Agent's office, in same day funds, the amount of such
Canadian Advance. In the event that any Canadian Lender fails to make available
to Canadian Agent for the account of Canadian Issuing Bank the amount of such
Canadian Advance, Canadian Issuing Bank shall be entitled to recover such
amount on demand from such Canadian Lender together with interest thereon at a
rate per annum equal to the lesser of (i) the Highest Lawful Rate and (ii) the
Canadian Prime Rate.
(d) Increased Costs. If any change in any Law or in the
interpretation thereof by any Tribunal charged with the administration thereof
shall either (i) impose, modify, or deem applicable any reserve, special
deposit or similar requirement against letters of credit or guarantees issued
by, or assets held by, or deposits in or for the account of, Canadian Issuing
Bank or any Canadian Lender or (ii) impose on Canadian Issuing Bank or any
Canadian Lender any other condition regarding this Agreement or such Canadian
Lender or any Canadian Letter of Credit, and the result of any event referred
to in the preceding clause (i) or (ii) shall be to increase the cost to
Canadian Issuing Bank of issuing or maintaining any Canadian Letter of Credit
or to any Canadian Lender of purchasing any participation therein or making any
Advance pursuant to Section 2.16(c), then, upon demand by Canadian Issuing Bank
or such Canadian Lender, CA Canada shall, subject to Section 9.09, pay to
Canadian Issuing Bank or such Canadian Lender, from time to time as specified
by Canadian Issuing Bank or such Canadian Lender, additional amounts that shall
be sufficient to compensate Canadian Issuing Bank or such Canadian Lender for
such increased cost ("Additional Canadian Letter of Credit Costs"). A
certificate as to the amount of such Additional Canadian Letter of Credit
Costs, submitted to CA Canada by Canadian Issuing Bank or such Canadian Lender,
shall include in reasonable detail the basis for the demand for additional
compensation and shall be conclusive and binding for all purposes, absent
manifest error. Notwithstanding any other provision of this Agreement, no
Canadian Lender not organized under the Laws of the Canada or any Province
therein shall be entitled to compensation pursuant to this Section 2.16(d) with
respect to any amount which would otherwise be due under this Section 2.16(d)
but which is the result of an act of a Tribunal of the country in which such
Lender is organized.
(e) Obligations Absolute. The obligations of CA Canada under this
Agreement with respect to any Canadian Letter of Credit, any Canadian Letter of
Credit Agreement, and any other agreement or instrument relating to any
Canadian Letter of Credit or any Advance pursuant to Section 2.16(c) shall be
unconditional and irrevocable, and shall be paid strictly in accordance with
the terms of this Agreement, such Canadian Letter of Credit Agreement, and such
other
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agreement or instrument under all circumstances, including, without limitation,
the following circumstances:
(i) any lack of validity or enforceability of this
Agreement, any other Loan Paper, any Canadian Letter of Credit
Agreement, any Canadian Letter of Credit, or any other agreement or
instrument relating thereto (collectively, the "Canadian L/C Related
Documents");
(ii) any change in the time, manner, or place of
payment of, or in any other term of, all or any of the Obligations of
CA Canada in respect of the Canadian Letters of Credit or any Advance
pursuant to Section 2.16(c) or any other amendment or waiver of or any
consent to departure from all or any of the Canadian L/C Related
Documents;
(iii) the existence of any claim, set-off, defense,
or other right that CA Canada may have at any time against any
beneficiary or any transferee of a Canadian Letter of Credit (or any
Persons for whom any such beneficiary or any such transferee may be
acting), Canadian Issuing Bank, any Lender or any other Person,
whether in connection with this Agreement, the transactions
contemplated hereby or by the Canadian L/C Related Documents or any
unrelated transaction;
(iv) any statement or any other document presented
under a Canadian Letter of Credit proving to be forged, fraudulent,
invalid, or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect;
(v) payment by Canadian Issuing Bank under a
Canadian Letter of Credit against presentation of a draft or
certificate that does not comply with the terms of the Canadian Letter
of Credit, except for any payment made upon Canadian Issuing Bank's
gross negligence or willful misconduct;
(vi) any exchange, release, or non-perfection of
any collateral, or any release or amendment or waiver of or consent to
departure from any guarantee, for all or any of the Obligations of CA
Canada or any other Obligor in respect of the Canadian Letters of
Credit or any Advance pursuant to Section 2.16(c); or
(vii) any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing, including,
without limitation, any other circumstance that might otherwise
constitute a defense available to, or a discharge of, CA Canada or any
other Obligor, other than Canadian Issuing Bank's gross negligence or
willful misconduct.
(f) Canadian L/C Cash Collateral Account.
(i) Upon the occurrence of an Event of Default and
written demand by Canadian Agent or Canadian Issuing Bank, CA Canada
will promptly pay to Canadian Agent in immediately available funds an
amount equal to 100% of the maximum amount then available to be drawn
under the Canadian Letters of Credit then outstanding. Any amounts so
received by Canadian Agent shall be deposited by Canadian Agent in a
deposit account maintained by Canadian Issuing Bank (the "Canadian L/C
Cash Collateral Account").
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(ii) As security for the payment of all
Reimbursement Obligations and for any other Obligations, upon an Event
of Default without notice or demand, CA Canada hereby grants, conveys,
assigns, pledges, sets over, and transfers to Canadian Agent (for the
benefit of Canadian Issuing Bank and Canadian Lenders), and creates in
Canadian Agent's favor (for the benefit of Canadian Issuing Bank and
Canadian Lenders) a security interest and pledge in, all money,
instruments, and securities at any time held in or acquired in
connection with the Canadian L/C Cash Collateral Account, together
with all proceeds thereof. The Canadian L/C Cash Collateral Account
shall be under the sole dominion and control of Canadian Agent and CA
Canada shall have no right to withdraw or to cause Canadian Agent to
withdraw any funds deposited in the Canadian L/C Cash Collateral
Account. At any time and from time to time, upon Canadian Agent's
request, CA Canada promptly shall execute and deliver any and all such
further instruments and documents, as may be necessary, appropriate or
desirable in Canadian Agent's judgment to obtain the full benefits
(including perfection and priority) of the security interest created
or intended to be created by this Section 2.16(f)(ii) and of the
rights and powers herein granted. CA Canada shall not create or suffer
to exist any Lien on any amounts or investments held in the Canadian
L/C Cash Collateral Account other than the Lien granted under this
Section 2.16(f)(ii).
(iii) Canadian Agent shall (A) apply any funds in
the Canadian L/C Cash Collateral Account on account of Reimbursement
Obligations when the same become due and payable if and to the extent
that CA Canada shall fail directly to pay such Reimbursement
Obligations and (B) after the Maturity Date, apply any proceeds
remaining in the Canadian L/C Cash Collateral Account first to pay any
unpaid Obligations relating to the Canadian Commitment then
outstanding hereunder and then to refund any remaining amount to CA
Canada.
(iv) CA Canada, no more than once in any calendar
month, may direct Canadian Agent to invest the funds held in the
Canadian L/C Cash Collateral Account (so long as the aggregate amount
of such funds exceeds any relevant minimum investment requirement) in
(A) direct obligations of Canada or any agency thereof, or obligations
guaranteed by Canada or any agency thereof and (B) one or more other
types of investments permitted by Determining Lenders, in each case
with such maturities as CA Canada, with the consent of Determining
Lenders, may specify, pending application of such funds on account of
Reimbursement Obligations or on account of other Obligations, as the
case may be. In the absence of any such direction from CA Canada,
Canadian Agent shall invest the funds held in the Canadian L/C Cash
Collateral Account (so long as the aggregate amount of such funds
exceeds any relevant minimum investment requirement) in one or more
types of investments with the consent of Determining Lenders with such
maturities as Canadian Agent, with the consent of Determining Lenders,
may specify, pending application of such funds on account of
Reimbursement Obligations or on account of other Obligations, as the
case may be. All such investments shall be made in Canadian Agent's
name for the account of Canadian Issuing Bank and Canadian Lenders. CA
CANADA RECOGNIZES THAT ANY LOSSES OR TAXES WITH RESPECT TO SUCH
INVESTMENTS SHALL BE BORNE SOLELY BY CA CANADA, AND CA CANADA AGREES
TO HOLD CANADIAN AGENT, CANADIAN ISSUING BANK, AND LENDERS HARMLESS
FROM ANY AND
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ALL SUCH LOSSES AND TAXES. Canadian Agent may liquidate any investment
held in the Canadian L/C Cash Collateral Account in order to apply the
proceeds of such investment on account of the Reimbursement
Obligations (or on account of any other Obligations then due and
payable, as the case may be) in accordance with Section 2.16(f)(iii)
without regard to whether such investment has matured and without
liability for any penalty or other fee incurred (with respect to which
CA Canada hereby agrees to reimburse Canadian Agent) as a result of
such application.
(v) CA Canada shall pay to Canadian Agent the fees
customarily charged by Canadian Issuing Bank with respect to the
maintenance of accounts similar to the Canadian L/C Cash Collateral
Account.
(g) No Liability of Canadian Issuing Bank. CA Canada assumes all
risks of the acts or omissions of any beneficiary or transferee of any Canadian
Letter of Credit with respect to its use of such Canadian Letter of Credit.
None of Canadian Agent, Canadian Issuing Bank, or any Lender, or any of their
respective officers or directors shall be liable or responsible for: (a) the
use that may be made of any Canadian Letter of Credit or any acts or omissions
of any beneficiary or transferee in connection therewith; (b) the validity,
sufficiency or genuineness of documents, or of any endorsement thereon, even if
such documents should prove to be in any or all respects invalid, insufficient,
fraudulent or forged; (c) payment by Canadian Issuing Bank against presentation
of documents that do not comply with the terms of a Canadian Letter of Credit,
including failure of any documents to bear any reference or adequate reference
to the Canadian Letter of Credit, except for any payment made upon Canadian
Issuing Bank's gross negligence or willful misconduct; or (d) any other
circumstances whatsoever in making or failing to make payment under any
Canadian Letter of Credit, except that CA Canada shall have a claim against
Canadian Issuing Bank, and Canadian Issuing Bank shall be liable to CA Canada,
to the extent of any direct, but not consequential, damages suffered by CA
Canada that CA Canada proves were caused by (i) Canadian Issuing Bank's willful
misconduct or gross negligence in determining whether documents presented under
any Canadian Letter of Credit comply with the terms of the Canadian Letter of
Credit or (ii) Canadian Issuing Bank's willful failure to make lawful payment
under a Canadian Letter of Credit after the presentation to it of a draft and
certificates strictly complying with the terms and conditions of the Canadian
Letter of Credit. In furtherance and not in limitation of the foregoing,
Canadian Issuing Bank may accept documents that appear on their face to be in
order, without responsibility for further investigation, regardless of any
notice or information to the contrary.
2.17. Reallocation.
(a) Upon three Business Days prior written notice (the "Reallocation
Notice") to Agent, Canadian Agent and ABN AMRO Bank, N.V. ("ABN"), Borrowers
may on a one time only basis, elect at any time to reduce ABN's portion of the
Domestic Commitment by an amount equal to the lesser of (a) $10,000,000 and (b)
ABN's portion of the Domestic Commitment and either (y) add ABN as a Canadian
Lender in which case ABN's portion of the Canadian Commitment shall be an
amount equal to the Canadian Dollar Exchange Equivalent of Dollars determined
on the effective date of such reallocation contained in the Reallocation
Notice, to the extent that ABN is not a Canadian Lender or (z) increase ABN's
portion of the Canadian Commitment by the Canadian Dollar Exchange Equivalent
of Dollars determined on the effective date of such reallocation contained in
the Reallocation Notice.
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(b) The reallocation described in Section 2.17(a) may only be
exercised upon the following conditions:
(i) No Event or Event of Default shall have
occurred and be continuing or will result from such reallocation;
(ii) A fee of 1/8 of 1% of the amount of such
reduction of ABN's portion of the Domestic Facility shall be paid to
Agent for the sole benefit of ABN's account, payable in Dollars;
(iii) ABN or an Affiliate of ABN shall be a
qualified Canadian lender; and
(iv) Parent and CA Canada and each Affiliate
thereof shall execute all necessary agreements in connection with the
reallocation as determined by Special Counsel, Agent and Canadian
Agent, including without limitation, a revised Schedule 1.01 in form
and substance satisfactory to the Agent and the Canadian Agent.
2.18. Provisions Respecting Canadian Advances.
(a) Canadian Advances will be made available by the Canadian Lenders
to CA Canada in an amount not to exceed the Canadian Commitment, subject to the
terms and conditions contained herein, as:
(i) Canadian Prime Rate overdraft borrowings in
Canadian Dollars and U.S. Base Rate overdraft borrowings in Dollars
the availability of such borrowings which shall terminate upon any
reallocation of the Commitment in accordance with the Section 2.17 or
upon Canadian Agent otherwise ceasing to be the sole Canadian Lender;
(ii) direct Canadian Advances bearing interest at
the Canadian Prime Rate in Canadian Dollars and direct Canadian
Advances bearing interest at the U.S. Base Rate in Dollars;
(iii) Letters of Credit, Letters of Guarantee, and
corporate VISA accounts;
(iv) Hedge Agreements;
(v) Bankers' Acceptances, subject to the terms and
conditions set forth herein; and
(vi) direct Canadian Advances bearing a fixed rate
for a fixed term.
(b) Interest payable on Canadian Advances at a variable rate shall
be adjusted automatically without notice to CA Canada whenever there is a
variation in such rate.
(c) At CA Canada's request and subject to market availability,
Canadian Agent and
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Canadian Issuing Bank will provide quotes for interest rate swap agreements and
forward rate agreements to provide fixed or floating rate funding for CA Canada
for a term to maturity consistent with CA Canada's cash flow profile as
determined by Canadian Agent and Canadian Issuing Bank's usual practice for
similar type borrowers. Any utilization of the interest rate swap options and
forward rate agreements will automatically be included in the Obligations
hereunder at an amount of the contingent exposure of Canadian Agent and
Canadian Issuing Bank as determined by Canadian Agent and Canadian Issuing Bank
using each of their then current banking practice in similar transactions.
(d) At CA Canada's request and subject to market availability,
Canadian Agent and Canadian Issuing Bank will provide quotes for foreign
exchange contracts. Any utilization of the foreign exchange contract option
will automatically be included in Obligations at an amount of the contingent
exposure of Canadian Agent and Canadian Issuing Bank as determined by Canadian
Agent and Canadian Issuing Bank using each of their then current banking
practice in similar transactions. The aggregate of all contingent Obligations
and market risk exposure of CA Canada, as determined by Canadian Agent and
Canadian Issuing Bank, under Hedge Agreements shall not exceed the lesser of
the Canadian Commitment or the Borrowing Base.
(e) For the purposes of the Interest Act (Canada) and other
Applicable Laws which may hereafter regulate the calculation or computation of
interest with respect to the Canadian Commitment, the annual rates of interest
and fees applicable to Canadian Advances accruing interest based upon the
Canadian Prime Rate, U.S. Base Rate, and Bankers' Acceptance Rate,
respectively, are the rates as determined under this Agreement multiplied by
the actual number of days in a period of one year commencing on the first day
of the period for which such interest or stamping fee is payable and divided by
365.
(f) Interest on Canadian Advances bearing interest at Canadian Prime
Rate and U.S. Base Rate shall accrue and be calculated daily and be payable on
such Business Day as is customary for the Canadian Agent having regard to its
then existing practice. Interest on Canadian Advances bearing Canadian Prime
Rate and U.S. Base Rate and stamping fees on Bankers' Acceptances shall accrue
and be calculated daily on the basis of a 365-day year.
(g) Each Bankers' Acceptance draft tendered by CA Canada for
acceptance by Canadian Agent shall be in a form acceptable to Canadian Agent
and shall have a term equal to one, two, three or six months, as CA Canada
shall select, (unless otherwise agreed to by the Canadian Agent). Stamping fees
on Bankers' Acceptances are payable at the time of issuance at the Bankers'
Acceptance Rate plus the Applicable Margin.
(h) CA Canada shall pre-sign and deliver to Canadian Agent Bankers'
Acceptance drafts in sufficient quantity to meet CA Canada's requirements for
anticipated Canadian Advances by way of Bankers' Acceptances. CA Canada shall
provide for payment to Canadian Agent of each Bankers' Acceptance at its
maturity, either by payment of the face amount thereof or through the
utilization of a Canadian Advance in accordance with this Agreement, or through
a combination thereof. CA Canada waives presentment for payment of Bankers'
Acceptances by Canadian Agent and shall not claim from Canadian Agent any days
of grace for the payment at maturity of Bankers' Acceptances. Any amount owing
by CA Canada in respect of any Bankers' Acceptance which is not paid in
accordance with the foregoing, shall, as and from its maturity date, be deemed
to be outstanding hereunder as a Canadian Prime Rate Advance.
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(i) Canadian Agent shall not be liable for any damage, loss or
improper use of any Bankers' Acceptance draft endorsed in blank except for any
loss arising by reason of Canadian Agent failing to use the same standard of
care in the custody of such Bankers' Acceptance drafts as Canadian Agent uses
in the custody of its own property of a similar nature.
(j) CA Canada shall be responsible for, and shall make its own
arrangements with respect to, the sale of Bankers' Acceptances in the market
place. Notwithstanding the foregoing, Canadian Agent may purchase from CA
Canada for its own account any Bankers' Acceptance issued by it at a discount
rate to be agreed upon between CA Canada and Canadian Agent.
(k) CA Canada may in the notice of borrowing, notice of rollover or
notice of conversion requesting a Canadian Advance by way of Bankers'
Acceptances or by subsequent notice to Canadian Agent, provide Canadian Agent
with information as to the discount proceeds payable by the purchasers of the
Bankers' Acceptances and the party to whom delivery of the Bankers' Acceptances
is to be made against delivery of such discount proceeds to Canadian Agent for
the credit of CA Canada.
(l) In the case of a rollover of maturing Bankers' Acceptances,
Canadian Agent, in order to satisfy the continuing liability of CA Canada to
Canadian Agent for the face amount of the maturing Bankers' Acceptances, shall
retain for its own account the net proceeds of each new Bankers' Acceptance
issued by it in connection with such rollover and CA Canada shall, on the
maturity date of the maturing Bankers' Acceptances, pay to Canadian Agent an
amount equal to the difference between the face amount of the maturing Bankers'
Acceptances and the aggregate net proceeds of the new Bankers' Acceptances.
(m) In the case of a conversion from a Canadian Prime Rate Advance
or a U.S. Base Rate Advance into a Canadian Advance by way of Bankers'
Acceptances, Canadian Agent, in order to satisfy the continuing liability of CA
Canada to Canadian Agent for the principal amount of the Canadian Advance
bearing the Canadian Prime Rate or the U.S. Base Rate being converted, shall
retain for its own account the net proceeds of each new Bankers' Acceptance
issued by it in connection with such conversion and CA Canada shall, on the
date of issuance of the Bankers' Acceptance pay to Canadian Agent an amount
equal to the difference between the aggregate principal amount of the Canadian
Advance bearing the Canadian Prime Rate or the U.S. Base Rate being converted,
including any accrued interest thereon, owing to Canadian Agent and the
aggregate net proceeds of such Bankers' Acceptances.
(n) In the case of a conversion of a Canadian Advance by way of
Bankers' Acceptances into a Canadian Advance bearing the Canadian Prime Rate or
the U.S. Base Rate, Canadian Agent in order to satisfy the liability of CA
Canada to Canadian Agent for the face amount of the maturing Bankers'
Acceptances, shall record the obligation of CA Canada to it as a Canadian
Advance bearing the Canadian Prime Rate or the U.S. Base Rate, as the case may
be, unless CA Canada provides for payment to Canadian Agent of the face amount
of the maturing Bankers' Acceptance in some other manner acceptable to Canadian
Agent.
(o) CA Canada hereby authorizes Canadian Agent to complete, stamp,
hold, sell, rediscount or otherwise dispose of all Bankers' Acceptances
accepted by it in accordance with the instructions provided by CA Canada
hereunder.
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(p) Upon the occurrence and continuance of an Event of Default and
upon the written request of Canadian Agent, CA Canada shall forthwith pay to
Canadian Agent for deposit into an escrow account maintained by and in the name
of Canadian Agent an amount equal to Canadian Agent's maximum potential
liability under then outstanding Bankers' Acceptances, and other similar
availments, including Canadian Agent's contingent exposure under Hedge
Agreements entered into with CA Canada (the "Escrow Funds"). The Escrow Funds
shall be held by Canadian Agent for set-off against future indebtedness owing
by CA Canada to Canadian Agent in respect of such Bankers' Acceptances and
other similar availments, and pending such application shall bear interest at
the rate declared by Canadian Agent from time to time as that payable by it in
respect for deposits for such amount and for the period from the date of
deposit to the maturity date of the Bankers' Acceptances, as the case may be.
If such Event of Default is either waived or cured in compliance with the terms
of this Agreement, then the remaining Escrow Funds if any, together with any
accrued interest to the date of release, shall be released to CA Canada.
(q) A conversion of a Canadian Advance from one currency to another
currency shall not be made by a netting out of funds unless agreed upon by the
Canadian Agent. To the extent permitted by Applicable Law, the provisions of
the Judgment Interest Act (Alberta) shall not apply to this Canadian Commitment
and are hereby expressly waived by CA Canada. For the purposes of the Interest
Act (Canada), the principal of deemed reinvestment of interest shall not apply
to any interest calculation under this Canadian Commitment and the rates of
interest stipulated in this Canadian Commitment are intended to be nominal
rates and not effective rates or yields.
(r) The aggregate of all Swap Exposure of CA Canada, as determined
by Canadian Agent, under all Hedge Agreements, shall not exceed CDN$3,000,0000,
unless agreed otherwise by CA Canada and Canadian Agent. The term of interest
rate swap agreements and forward contracts shall not exceed the earlier of five
years or the Maturity Date and of any other Hedge Agreement shall not exceed 18
months, unless agreed otherwise by CA Canada and Canadian Agent.
(s) Where applicable, all Canadian Advances requested by CA Canada
shall be made available by deposit of the applicable funds (which in the case
of Bankers' Acceptances shall be the net proceeds thereof) into the appropriate
account of CA Canada for value on the Business Day on which the Canadian
Advance is to take place.
(t) (i) CA Canada shall be entitled to rollover one Type of
Canadian Advance into the same Type of Canadian Advance
or convert one Type of Canadian Advance into another Type
of Canadian Advance on the terms herein provided.
(ii) If CA Canada fails to give Canadian Agent a duly
completed notice of rollover or notice of conversion if
and as required, or if in giving such notice CA Canada
fails to provide for the rollover or conversion of all of
the Canadian Advances then maturing, CA Canada shall be
deemed to have irrevocably elected to convert a maturing
advance, or that part of such maturing advance which CA
Canada has failed to provide for in such notice, as the
case may be, into
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a Canadian Prime Rate loan with respect to a Canadian
Dollar borrowing or a U.S. Base Rate loan with respect to
a U.S. Dollar borrowing.
(iii) No conversion of a Bankers' Acceptance shall be made
prior to its maturity date.
ARTICLE III. CONDITIONS PRECEDENT
3.01. Conditions Precedent to Effectiveness. The effectiveness of this
Agreement is subject to fulfillment of the following conditions precedent:
(a) The making of the Commitment and the initial Advance shall not
contravene any Law applicable to Agent, Canadian Agent, Issuing Bank, Canadian
Issuing Bank, or any Lender.
(b) No Material Adverse Change, as determined by Agent or Canadian
Agent, as the case may be, shall have occurred and be continuing since October
31, 1998.
(c) Parent and CA Canada shall have delivered to Agent or Canadian
Agent, as the case may be:
(i) an Officer's Certificate executed by authorized
officers of Parent, dated the Effective Date, certifying (A) that an
original of Parent's certificate of incorporation certified by the
Secretary of State of Georgia and a copy of its bylaws attached
thereto are true and complete, and in full force and effect, without
amendment except as shown, (B) that a copy of Parent's resolutions
attached thereto authorizing execution, delivery, and performance of
this Agreement and all other Loan Papers is true and complete, and
that such resolutions are in full force and effect, were duly adopted,
have not been amended, modified, or revoked, and constitute all
resolutions of Parent adopted with respect to this loan transaction,
and (C) to the incumbency, name, and signature of each officer
authorized to sign this Agreement and all other Loan Papers on
Parent's behalf.
(ii) an Officer's Certificate executed by authorized
officers of CA Canada, dated the Effective Date, certifying (A) that
an original of CA Canada's certificate or articles of incorporation
and originals of the certificates of registration (or like documents)
from every jurisdiction in Canada in which CA Canada is or is deemed
to be carrying on business or is otherwise required to be registered,
certified by the appropriate authority in each jurisdiction and a copy
of its bylaws attached thereto are true and complete, and in full
force and effect, without amendment except as shown, (B) that a copy
of CA Canada's resolutions attached thereto authorizing execution,
delivery, and performance of this Agreement and all other Loan Papers
is true and complete, and that such resolutions are in full force and
effect, were duly adopted, have not been amended, modified, or
revoked, and constitute all resolutions of CA Canada adopted with
respect to this loan transaction, and (C) to the incumbency, name, and
signature of each officer authorized to sign this Agreement and all
other Loan Papers on CA Canada's behalf.
(iii) an Officer's Certificate executed by authorized
officers of each Obligor (other than Parent and CA Canada), dated the
Effective Date, certifying (A) that
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an original of such Obligor's certificate of incorporation,
organization or similar document certified by the Secretary of State
of the jurisdiction of incorporation and a copy of its bylaws,
operating agreement or similar document attached thereto are true and
complete, and in full force and effect, without amendment except as
shown, (B) that a copy of such Obligor's resolutions attached thereto
authorizing execution, delivery, and performance of all Loan Papers is
true and complete, and that such resolutions are in full force and
effect, were duly adopted, have not been amended, modified, or
revoked, and constitute all resolutions of such Obligor adopted with
respect to this loan transaction, and (C) to the incumbency, name, and
signature of each officer authorized to sign all Loan Papers on such
Obligor's behalf.
Agent, Canadian Agent, Issuing Bank, Canadian Issuing Bank and each Lender may
conclusively rely on the certificates delivered pursuant to this Section 3.01
until it receives notice in writing to the contrary.
(d) Agent shall have received, in form and substance satisfactory to
it, certificates from the Secretary of State and other appropriate officials of
the state of organization, all issued within ten days of the Effective Date,
certifying that each Obligor which is a corporation, limited liability company,
partnership, or other entity is duly organized, validly existing, and in good
standing in said state as of the respective dates thereof.
(e) Agent and Canadian Agent shall have received (in sufficient
counterparts as determined by Agent):
(i) opinions of counsel to Parent, CA Canada and
each other Obligor, dated the Effective Date, in the form of Exhibit
G, together with duly executed instruction letters in the form of
Exhibit H;
(ii) duly executed Solvency Certificates for Parent,
CA Canada and each other Obligor, in the form of Exhibit I;
(iii) the duly executed Guaranty of each Guarantor;
(iv) the duly executed Parent Guaranty of CA Canada's
Obligations under this Agreement;
(v) copies of this Agreement and all Loan Papers,
pursuant to terms and conditions required by Agent, all in form and
substance satisfactory to Agent and completed and executed by each
Obligor and any other Person, as appropriate;
(vi) a description in detail satisfactory to Agent
and Canadian Agent describing all Litigation (excluding Litigation all
expenses and potentially liability with respect to which is entirely
covered by insurance) related to each Obligor which if adversely
determined could reasonably be expected to result in a Material
Adverse Change;
(vii) financial statements for Parent, including the
most recent audited financial statements of Parent and each subsequent
unaudited interim financial statement of
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each Obligor; and
(viii) the most recent unaudited financial statements
of CA Canada.
(f) Payment of all fees (including reasonable attorneys' fees
incurred by Agent in the preparation and negotiation of this Agreement, the Loan
Papers and this loan facility.
3.02. Conditions Precedent to All Advances, Letters of Credit and
Canadian Letters of Credit.
(a) The obligation of each Lender to make each Advance (including
the Initial Advance) and of Issuing Bank or Canadian Issuing Bank to issue each
Letter of Credit or Canadian Letter of Credit shall be subject to the further
conditions precedent that on the date of such Advance or the issuance of such
Letter of Credit or Canadian Letter of Credit (i) the following statements
shall be true (and the delivery of each Borrowing Notice under Section 2.02(a)
and each Conversion or Continuation Notice under Section 2.08(b), or the
failure to deliver a Conversion or Continuation Notice under Section 2.08(b),
and each Notice of Issuance under Section 2.15(b) or Section 2.16(b) shall
constitute a representation that on the disbursement or issuance date (except
as to representations and warranties which (A) refer to a specific date, (B)
have been modified by transactions permitted pursuant to this Agreement or any
other Loan Paper, or (C) have been specifically waived in writing by Agent)
they are true):
(x) The representations and warranties contained in Article
IV are true and correct on such date, as though made on and as of such
date,
(y) No event has occurred and is continuing, or would result
from such Advance or the issuance of such Letter of Credit or Canadian
Letter of Credit (including the intended application of the proceeds
of such Advance, such Letter of Credit or such Canadian Letter of
Credit), that does or could constitute a Default or Event of Default,
and
(z) Each Subsidiary of Parent other than Field Marketing,
Inc., Demers Express, CA Canada and CAFS Financial Services, Inc.
(Canadian corporation) shall have executed and delivered to Agent or
Canadian Agent, as the case may be, a Guaranty;
and (ii) Agent shall have received with respect to each jurisdiction (other
than the jurisdiction of organization) in which the nature of such Obligor's
business is such that qualification to do business is necessary or advisable,
original certificates of appropriate authorities in each such jurisdiction, all
issued not later than ten days after the Effective Date, to the effect that
such Obligor is in good standing and duly qualified to transact business in
each such jurisdiction, (iii) with respect to any Lender which has not
previously made an Advance and any participant which has not previously
advanced funds to a Lender for an Advance, Agent shall have received, in form
and substance acceptable to it, such other approvals, documents, certificates,
opinions, and information as it may deem necessary or appropriate for such
Lender or participant.
(b) In addition, but without duplication of any of the foregoing,
the obligation of the Canadian Agent to make available or continue to make
available any Canadian Advance is subject to the Canadian Agent first having
received and found satisfactory as to form and content the
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following: (i) the Parent Guaranty, (ii) standard documentation of the Canadian
Agent with respect to: (x) Hedge Agreements; (x) overdraft lending agreement;
(y) undertaking relative to Bankers' Acceptances; and (iii) cash management;
and (iv) the Canadian Letters of Credit and letters of guarantee; and (v) all
usual and normal agreements and account documentation as required by the
Canadian Agent in respect of the operating accounts of CA Canada to be
maintained with the Canadian Agent.
3.03. Conditions Precedent to Certain Advances, Letters of Credit and
Canadian Letters of Credit. The obligation of each Lender to make each Advance
in excess of United States $75,000,000 (including the Initial Advance) and of
Issuing Bank or Canadian Issuing Bank to issue each Letter of Credit or
Canadian Letter of Credit to the extent that Borrowers' collective Obligations
under this Agreement and the other Loan Papers shall in the aggregate exceed
United States $75,000,000 shall be subject to the further condition precedent
that on the date of such Advance or the issuance of such Letter of Credit or
Canadian Letter of Credit, the Borrowers shall have received the consent of the
Senior Holders (1996 Series) holding no less than 66 2/3% of the principal
amount of the Senior Notes issued pursuant to a Note Purchase Agreement (1996
Series) allowing each Guarantor to guarantee the entire amount of the
Commitment.
ARTICLE IV. REPRESENTATIONS AND WARRANTIES
Parent and CA Canada each represent and warrant to Agent, Canadian
Agent, Issuing Bank, Canadian Issuing Bank and each Lender that the following
are true and correct:
4.01. Organization and Qualification. Parent is a corporation duly
organized, validly existing, and in good standing under the Laws of the State
of Georgia. Parent is qualified to do business in all jurisdictions where the
nature of its business or Properties require such qualification, except where
the failure to so qualify would not result in a Material Adverse Change. Set
forth on Schedule 4.01-a is a complete and accurate listing of Parent, showing
(a) its street and mailing address, which is its principal place of business
and executive office, (b) the classes of equity interests capital stock
authorized and outstanding, and (c) all outstanding options, rights, rights of
conversion or purchase, rights of first refusal, and similar rights relating to
the equity interests of Parent. CA Canada is a corporation duly organized,
validly existing, and in good standing under the Laws of Canada. CA Canada is
qualified to do business in all jurisdictions where the nature of its business
or Properties require such qualification, except where the failure to so
qualify would not result in a Material Adverse Change. Set forth on Schedule
4.01-c is a complete and accurate listing of CA Canada, showing (a) its street
and mailing address, which is its principal place of business and executive
office, (b) the classes of equity interests capital stock authorized and
outstanding, and (c) all outstanding options, rights, rights of conversion or
purchase, rights of first refusal, and similar rights relating to the equity
interests of CA Canada. Each Subsidiary of Parent is the type of entity
described on Schedule 4.01-b and is duly organized, validly existing, and in
good standing under the Laws of the jurisdiction named on Schedule 4.01-b. Each
Subsidiary of Parent is qualified to do business in all jurisdictions where the
nature of its business or Properties require such qualification, except where
the failure to so qualify would not result in a Material Adverse Change. Set
forth on Schedule 4.01-b is a complete and accurate listing, with respect to
each Subsidiary of Parent showing (a) its street and mailing address, which is
its principal place of business and executive office, (b) the classes of
capital stock or other equity interest and the numbers of shares, units or
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other categories of equity interests authorized and outstanding, (c) each legal
and beneficial owner of outstanding capital stock or other equity interest on
the date hereof, indicating the ownership percentage, and (d) all outstanding
options, rights, rights of conversion or purchase, rights of first refusal, and
similar rights relating to the equity interests of such Person. Each of Parent,
CA Canada and each other Obligor has all requisite corporate, limited liability
company, partnership, or similar power and authority to own, operate and
encumber its Property and assets and to conduct its business as presently
conducted and as proposed to be conducted in connection with and following the
consummation of the transactions contemplated by this Agreement and the other
Loan Papers. All of the outstanding common stock or other equity interest of
each Obligor is validly issued, fully paid, and nonassessable.
4.02. Due Authorization; Validity. The Board of Directors, Managers or
similar governance body of each Obligor has duly authorized the execution,
delivery, and performance of the Loan Papers to be executed by such Obligor. No
consent of the stockholders, members or other holders of equity or similar
interests of any Obligor (except any consent already obtained) is required as a
prerequisite to the validity and enforceability of any Loan Papers or any other
document contemplated hereby. Each Obligor has full legal right, power, and
authority to execute, deliver, and perform under the Loan Papers to be executed
and delivered by it. The Loan Papers constitute the legal, valid, and binding
obligations of each Obligor (as to each Loan Paper to which it is a party)
enforceable in accordance with their terms (subject as to enforcement of
remedies to any applicable Debtor Relief Laws).
4.03. Conflicting Agreements and Other Matters. The execution or
delivery of any Loan Paper, and performance thereunder, does not conflict with,
or result in a breach of the terms, conditions, or provisions of, or constitute
a default under, or result in any violation of, or result in the creation of
any Lien upon any Properties of any Obligor under, or require any consent
(other than consents already obtained), approval, or other action by, notice
to, or filing with any Tribunal or Person pursuant to, the corporate or other
governance documents of such Obligor, any award of any arbitrator, or any
agreement, instrument, or Law to which such Obligor or any of its Properties is
subject.
4.04. Financial Statements; Fiscal Year. The financial statements of
Parent, CA Canada and its Subsidiaries dated October 31, 1998 delivered to
Agent fairly present its financial condition and the results of operations as
of the dates and for the periods shown, all in accordance with GAAP. Such
financial statements reflect all material liabilities, direct and contingent,
of Parent, CA Canada and its Subsidiaries that are required to be disclosed in
accordance with GAAP. As of the date of such financial statements, there were
no Contingent Liabilities, liabilities for Taxes, forward or long-term
commitments, or unrealized or anticipated losses from any unfavorable
commitments that are not reflected on such financial statements or otherwise
disclosed in writing to Agent. Since October 31, 1998, there has been no
Material Adverse Change. Parent, CA Canada and each other Obligor is solvent.
The projected financial statements of Parent dated March 16, 1999, delivered to
Agent were prepared in good faith and management believes them to be based on
reasonable assumptions (each of which are stated in such statement) and to
provide reasonable estimations of future performance as of the dates and for
the periods shown for Parent, subject to the uncertainty and approximation
inherent in any projections. Parent's fiscal year ends on October 31.
4.05. Litigation. Shown on Schedule 4.05 is all Litigation (other
than Litigation involving counterclaims against an Obligor as part of
Litigation initiated by such Obligor for
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collection of an Account) that is pending and, to Parent's and CA Canada's best
knowledge, threatened against each Obligor on the date hereof which if adversely
determined could reasonably be expected to result in a Material Adverse Change.
There is no pending or, to Parent's or CA Canada's best knowledge, threatened
Litigation against any Obligor that could constitute a Material Adverse Change.
4.06. Compliance With Laws Regulating the Incurrence of Debt. No
proceeds of any Advance or Letter of Credit will be used directly or indirectly
to acquire any security in any transaction which is subject to Sections 13 and
14 of the Securities Exchange Act of 1934, as amended. No Obligor is engaged in
the business of extending credit for the purpose of purchasing or carrying
margin stock (within the meaning of Regulation U issued by the Board of
Governors of the Federal Reserve System), and no proceeds of any Advance,
Letter of Credit or Canadian Letter of Credit will be used to purchase or carry
any margin stock or to extend credit to others for the purpose of purchasing or
carrying any margin stock. Following Borrowers' intended use of the proceeds of
each Advance, Letter of Credit or Canadian Letter of Credit, not more than 25%
of the value of the assets of Parent or CA Canada will be "margin stock" within
the meaning of Regulation U. No Obligor is subject to regulation under the
Public Utility Holding Company Act of 1935, the Federal Power Act, the
Investment Company Act of 1940, the Interstate Commerce Act (as any of the
preceding acts have been amended), or any other Law that the incurring of Debt
by such Obligor would violate in any material respect, including without
limitation Laws relating to common or contract carriers or the sale of
electricity, gas, steam, water, or other public utility services.
4.07. Licenses, Title to Properties, and Related Matters. Each Obligor
possesses all material Licenses and is not in violation thereof in any material
respect. Each Obligor has full power, authority, and legal right to own and
operate its Properties, and to conduct its business. Each Obligor has good
and indefeasible title (fee or leasehold, as applicable) to its Properties,
subject to no Lien of any kind, except as permitted hereunder. No Obligor is in
violation of its corporate governance documents, or any Law, or material
agreement or instrument binding on or affecting it or any of its Properties. No
business or Properties of any Obligor is affected by any strike, lock-out, or
other labor dispute, drought, storm, earthquake, embargo, act of God or public
enemy, or other casualty that could constitute a Material Adverse Change.
4.08. Outstanding Debt; Existing Liens. No Obligor has any outstanding
Debt or Contingent Liabilities, except as shown on Schedule 4.08-a, and neither
it nor any of its Properties are subject to any Liens, except as shown on
Schedule 4.08-b. Schedule 4.08-a is a complete and correct description of each
Note Purchase Agreement, each Senior Note, each other Senior Note Paper, each
Senior Holder (1996 Series) and each Senior Holder (1998 Series). No equity
interest of any Obligor (other than Parent) is subject to any Lien, including
any restriction on hypothecation or transfer.
4.09. Taxes. Each Obligor has filed all federal, provincial, state,
and other Tax returns (or extensions related thereto) which are required to be
filed, and has paid all Taxes as shown on said returns, as well as all other
Taxes, to the extent due and payable before penalty. All Tax liabilities of
each Obligor are adequately provided for on its books, including interest and
penalties, and adequate reserves have been established therefor in accordance
with GAAP. Except as shown on Schedule 4.09, no income Tax liability of a
material nature has been asserted by taxing authorities for Taxes in excess of
those already paid other than income tax liabilities
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being contested in good faith and for which adequate reserves have been
established therefor in accordance with GAAP, and no taxing authority has
notified any Obligor of any deficiency in any Tax return.
4.10. ERISA. Each Plan has satisfied the minimum funding standards
under all Laws applicable thereto, and no Plan has an accumulated funding
deficiency thereunder. No Obligor has incurred any material liability to the
PBGC with respect to any Plan. No ERISA Event has occurred with respect to any
Plan. No Obligor has participated in any Prohibited Transaction with respect to
any Plan or trust created thereunder, and the consummation of the transactions
contemplated hereby will not involve any Prohibited Transaction. Neither any
Obligor nor any ERISA Affiliate has incurred any Withdrawal Liability to any
Multiemployer Plan. Neither any Obligor nor any ERISA Affiliate has been
notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is
in reorganization or has been terminated, within the meaning of Title IV of
ERISA.
4.11. Environmental Laws. The real Properties (whether leased or
owned) of each Obligor and the operations conducted thereon by it or, to
Parent's and CA Canada's best knowledge (solely with respect to real Properties
owned by CA Canada), any current or prior owner or operator thereof, (a) do not
violate and have not violated any applicable Environmental Law, the violation
of which would constitute a Material Adverse Change or result in costs,
penalties, fines, or damages in an aggregate amount of $1,000,000 or more, and
(b) are not subject to any pending or threatened investigation or proceeding by
any Tribunal or to any remedial obligations under any Environmental Law. All
Licenses have been obtained or filed that are required under any Environmental
Law in connection with the use of such Property and assets (including without
limitation past or present treatment, storage, disposal, or release of any
Hazardous Materials into the environment). No Hazardous Materials are
generated, produced, or stored at or in connection with the Properties and
operations of any Obligor. Each Obligor has taken all appropriate steps to
determine, and has determined, that no Hazardous Materials have been disposed
of or otherwise released on or to any Property on which any operations of such
Obligor are conducted, except in compliance with Environmental Laws. No Obligor
has any material potential liability with respect to any release of any
Hazardous Materials into the environment. The use which each Obligor makes or
intends to make of the real Property (whether leased or owned) on which any of
its operations are conducted will not result in the unlawful or unauthorized
disposal or other release of any Hazardous Materials, except in compliance with
applicable Environmental Laws. Each Obligor has delivered to Agent copies of
all environmental studies and reports conducted or received by such Obligor in
connection with its real Properties. Such studies cover all real Property in
which such Obligor has an interest.
4.12. Investments; Subsidiaries. No Obligor has any Investments except
as described on Schedules 4.01-a, 4.01-b and 4.12 and as permitted by Section
5.08. Schedules 4.01-a and 4.01-b are a complete and accurate listing of each
Subsidiary of each Obligor, showing (a) its complete name, (b) its jurisdiction
of organization, (c) its capital structure, (d) its street and mailing address,
which is its principal place of business and executive office and (e) all
interest in such Subsidiary owned by such Obligor.
4.13. Certain Fees. No broker's, finder's, management fee or other fee
or commission will be payable by Parent or CA Canada (other than to Agent and
Lenders hereunder and to Arranger). PARENT AND CA CANADA EACH SEVERALLY HEREBY
AGREE TO
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INDEMNIFY AND HOLD HARMLESS AGENT, CANADIAN AGENT, ARRANGER, AND EACH LENDER
FROM AND AGAINST ANY CLAIMS, DEMAND, LIABILITY, PROCEEDINGS, COSTS OR EXPENSES
ASSERTED WITH RESPECT TO OR ARISING IN CONNECTION WITH ANY SUCH FEES OR
COMMISSIONS.
4.14. CABP. CABP owns no Property other than (a) trademarks, patents
and copyrights, and associated goodwill, applications for trademarks, patents
and copyrights, and other property which is intangible intellectual property,
(b) licenses from CABP to Parent, Ashley, Cameron and CA Canada of Property
described in clause (a), (c) demand deposit accounts the aggregate balance of
which is not in excess of an amount reasonable and necessary to the business
operations of CABP, and (d) other Property of nominal value reasonable and
necessary to the business operations of CABP.
4.15. Disclosure. Parent and CA Canada have not made a material
misstatement of fact, or failed to disclose any fact necessary to make the
facts disclosed not misleading, to Agent, Canadian Agent, Arranger, or any
Lender during the course of application for and negotiation of any Loan Papers
or otherwise in connection with any Advance, any Letter of Credit or any
Canadian Letter of Credit. There is no fact known to Parent or CA Canada that
materially adversely affects any Obligor's Properties or business, or that
would constitute a Material Adverse Change, and that has not been set forth in
the Loan Papers or in other documents furnished to Agent, Canadian Agent or
each Lender.
4.16. Year 2000 Compliance. Parent has and has caused each Obligor to
have undertaken such review and assessment of its business and operations as it
deems appropriate with respect to Year 2000 Compliance, developed an
appropriate plan and timeline for addressing Year 2000 Compliance issues on a
timely basis, and to date, implemented that plan substantially in accordance
with that timetable. The aggregate costs to and charges by Parent (on a
consolidated basis) related to Year 2000 Compliance shall not exceed an amount
which is, or could reasonably be expected to cause, a Material Adverse Change.
4.17. Survival of Representations and Warranties, Disclaimers,
Waivers, etc. All representations, warranties, disclaimers and waivers made
under this Agreement and each other Loan Paper shall survive the execution and
effectiveness of this Agreement and shall be deemed to be made at and as of the
Effective Date and at and as of the date of each Advance and issuance of each
Letter of Credit and Canadian Letter of Credit, and each shall be true and
correct when made, except to the extent (a) previously fulfilled in accordance
with the terms hereof, (b) subsequently inapplicable, or (c) previously waived
in writing by Agent, Canadian Agent, Arranger, and Lenders with respect to any
particular factual circumstance.
ARTICLE V. NEGATIVE COVENANTS
So long as the Commitment or any Advance or any Reimbursement
Obligations is outstanding, or Parent, CA Canada or any other Obligor owes any
other amount hereunder or under any other Loan Paper:
5.01. Current Ratio. Parent shall not permit the ratio of Current
Assets to Current Liabilities as at any date to be less than 1.50 to 1.
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5.02. Net Worth. Parent shall not permit Net Worth as at any date to
be less than the sum of (a) $103,468,500, plus (b) 50% of cumulative Net Income
reported for each fiscal quarter (or month, if during the Peak Period) of
Parent in which Net Income is a positive number commencing with the fiscal
quarter (or month, if during the Peak Period) of Parent beginning on November
1, 1998, plus (c)100% of Equity Proceeds.
5.03. Funded Debt to EBITDA Ratio. Parent shall not permit the Funded
Debt to EBITDA Ratio to exceed at any time (a) during the Peak Period, 4.0 to
1, and (b) other than during the Peak Period, 3.5 to 1.
5.04. Fixed Charges Coverage Ratio. Parent shall not permit the Fixed
Charges Coverage Ratio as at any date to be less than (a) during the period
from the Effective Date through and including October 31, 1999, 1.50 to 1, (b)
during the period from November 1, 1999 through and including October 31, 2000,
1.35 to 1, (c) during the period from November 1, 2000, through and including
October 31, 2001, 1.25 to 1, and (d) from and after November 1, 2001, 1.50 to
1.
5.05. Restricted Payment. Parent shall not, and shall not permit any
Subsidiary of Parent to, make any Restricted Payment; provided, that if no
Default or Event of Default exists or will result therefrom, (a) Parent may
make cash Distributions in a fiscal year to holders of Parent's equity
securities in an aggregate amount not greater than the Permitted Amount, (b)
Ashley, Cameron and CAFS may make Distributions to Parent, (c) CA Canada may
make Distributions to Cameron, and (d) CABP may make Distributions to Parent,
Ashley and Cameron; provided further, that no Distribution otherwise permitted
by Section 5.05(a) shall be made prior to receipt by Agent of the financial
statements of Parent and their respective Subsidiaries required by Section
6.10(c) for the fiscal year to which such proposed Distribution is attributable
and a Compliance Certificate prepared after giving effect to such proposed
Distribution.
5.06. Debt. Parent shall not, and shall not permit any of its
Subsidiaries to, create, incur, assume, become, or be liable in any manner in
respect of, or suffer to exist, any Debt, except (a) Debt under the Loan
Papers, (b) Funded Debt under each Note Purchase Agreement and guaranties of
such Debt made by Parent and Subsidiaries of Parent, (c) other Debt in
existence on the date hereof, as shown on Schedule 4.08-a, (d) purchase money
Debt incurred for the acquisition of tangible assets, provided the aggregate
principal amount of such Debt incurred in any fiscal year shall not exceed
$1,000,000, (e) trade payables incurred and paid in the ordinary course of
business, (f) Contingent Liabilities under or relating to the Loan Papers, (g)
Contingent Liabilities in existence on the date hereof, as shown on Schedule
4.08-a, (h) guarantees by Parent and its Subsidiaries of obligations in respect
of Hedge Agreements permitted under Section 5.18, (i) Debt of each Subsidiary
of Parent to Parent or to another Subsidiary of Parent, (j) Contingent
Liabilities resulting from the endorsement of negotiable instruments for
collection in the ordinary course of business, (k) Convertible Subordinated
Debt in an aggregate principal amount not to exceed at any time $25,000,000,
(l) as to Parent and its Subsidiaries on a consolidated basis, other Debt not
to exceed at any time, in the aggregate principal amount, the difference
between (i) $10,000,000, minus (ii) the sum of all Attributable Debt in respect
of all Sale and Leasebacks occurring on and after the Effective Date, and (m)
renewals and restatements of any Debt described in Sections 5.06(a) through
(l), provided the principal amount of the Debt renewed or restated does not
exceed the principal amount of such Debt immediately prior to such renewal or
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restatement.
5.07. Dispositions of Assets. Parent and CA Canada shall not, and
shall not permit any of its Subsidiaries to, sell, lease, assign, or otherwise
dispose of any of its assets, except for Permitted Dispositions.
5.08. Merger; Consolidation; Investments. Parent and CA Canada shall
not, and shall not permit any of its Subsidiaries to, merge into, consolidate
with, or make any Investment in, any Person, permit any other Person to merge
into or consolidate with it, or form or acquire any Subsidiary, except
(provided there exists no Default or Event of Default both immediately before
and immediately after giving effect to such transaction):
(a) Restricted Investments;
(b) Permitted Acquisitions:
(i) if the total consideration paid in any such acquisition
or series of related transactions is less than $20,000,000, or
(ii) if the total consideration paid in any such acquisition
or series of related transactions is equal to or greater than
$20,000,000, provided that not less than ten Business Days prior to
the effective date of the proposed acquisition, Parent and CA Canada
shall have delivered to Agent:
(A) a detailed written description of the proposed
Permitted Acquisition,
(B) a statement certified by an authorized officer that
the proposed transaction complies with the requirements of a
Permitted Acquisition and stating that no Default or Event of
Default exists prior to or will exist upon consummation of the
proposed Permitted Acquisition, and
(C) a Compliance Certificate (with calculations for the
365-day period ended on the effective date of the proposed
acquisition) prepared as of the effective date of the proposed
Permitted Acquisition and based on pro forma financial
statements for Parent and CA Canada giving effect to such
transaction (which financial statements and calculation shall
exclude any expenses Parent and CA Canada project to be
eliminated by such proposed acquisition) evidencing that no
Default or Event of Default exists prior to or will exist upon
consummation of the proposed Permitted Acquisition, and
(iii) with respect to any proposed Permitted Acquisition made
during the Peak Period, no Permitted Acquisition can occur during such
Peak Period unless:
(A) the Funded Debt to EBITDA Ratio is less than or equal
to 3.8 to 1 (calculated for the 365-day period ended on the
effective date of the proposed Permitted Acquisition and based
on pro forma financial statements for Parent and CA Canada
giving effect to such transaction (which financial statements
and
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calculation shall exclude any expenses Parent and CA Canada
project to be eliminated by such proposed acquisition)), and
(B) not less than ten Business Days prior to the
effective date of the proposed acquisition, Parent and CA Canada
shall have delivered to Agent a certificate evidencing the
calculation in the preceding clause (A);
(c) Parent and CA Canada may invest in new Subsidiaries which are
Guarantors;
(d) Parent and CA Canada may invest in Non-Guarantors, if the amount
of such Investment plus the aggregate amount of all Investments in all other
Non-Guarantors and Investments permitted under Section 5.08(e), does not exceed
10% of Net Worth as of the date of determination (calculated based on the
amount of the initial and each subsequent investment, without giving effect to
any revaluation of the Investment);
(e) Investments not otherwise permitted pursuant to Section 5.08(a)
through (d), if the amount of such Investment together with Investments
permitted in Section 5.08(d), does not exceed 10% of Net Worth as of the date
of determination (calculated based on the amount of the initial and each
subsequent investment, without giving effect to any revaluation of the
Investment);
(f) the merger or consolidation of Wholly-Owned Subsidiaries of
Parent and CA Canada between themselves or into Parent and CA Canada so long as
Parent and CA Canada is the surviving entity; provided, CAFS shall not merge or
consolidate with or into any Person and shall not make any Investment other
than (A) making direct and indirect loans to or acquiring existing loans made
to residential consumers to acquire building materials sold by Parent or CA
Canada or a Guarantor for use in the construction or improvement of personal
residences and (B) Investments described in clauses (a), (b), and (e) through
(k) of the definition of "Restricted Investments";
(g) the merger or consolidation of any other Person with or into
Parent or CA Canada so long as Parent or CA Canada is the surviving entity;
(h) Investments in accounts receivable arising in the ordinary
course of business; and
(i) Debt of CAFS payable to Cameron permitted by Section 5.19.
5.09. Liens. Parent and CA Canada shall not, and shall not permit any
of its Subsidiaries to, create or suffer to exist any Lien upon any of its
Properties, except (a) Liens created by the Loan Papers, (b) Liens in existence
on the date hereof, as shown on Schedule 4.08-b, (c) Tax, mechanics',
materialmen's, warehousemen's, laborer's and landlord and other similar Liens
relating to amounts that are not yet due and payable, or that are being
contested in good faith by appropriate proceedings, for which adequate reserves
have been established, (d) Liens securing Debt permitted under Section 5.06(d),
provided such Lien shall encumber only the specific property acquired by such
Debt, (e) Liens incurred in the ordinary course of business in connection with
worker's compensation, unemployment insurance or similar legislation; and (f)
easements, right-of-way, restrictions and other similar encumbrances on the use
of real property which do not interfere with the ordinary conduct of the
business of such Person. Parent and CA
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Canada shall not, and shall not permit any of its Subsidiaries to, hereafter
agree with any Person (other than Agent) not to grant a Lien on any of its
assets or not to permit the pledge any of its equity interest (except as may be
provided in each Note Purchase Agreement).
5.10. Fiscal Year and Accounting Method. Without Agent's prior written
approval, Parent and CA Canada shall not, and shall not permit any of its
Subsidiaries to, change its fiscal year or method of accounting, except as may
be required by GAAP.
5.11. Issuance of Capital Stock; Amendment of Charter.
(a) Subsidiaries. Parent and CA Canada shall not permit any
of its Subsidiaries to, issue, sell or otherwise dispose of any
capital stock in such Person, or any options or rights to acquire such
capital stock. Parent and CA Canada shall not sell, transfer, encumber
or otherwise dispose of any equity interest or ownership interest in
any Subsidiary of Parent or CA Canada and shall not permit any
Subsidiary of Parent or CA Canada to sell, transfer, encumber or
otherwise dispose of any equity interest or ownership interest in any
Person which is a Subsidiary of such Subsidiary of Parent or CA
Canada.
(b) Borrowers and all Subsidiaries. Borrowers shall not amend
their respective articles of organization or bylaws, and Parent and CA
Canada shall not permit any of its Subsidiaries to amend its articles
of organization or bylaws, in any manner which impairs or revokes any
approval related to the Loan Papers.
5.12. Change of Ownership. Parent and CA Canada shall not, and shall
not permit any of its Subsidiaries to, permit any change in the ownership of
any Obligor from the ownership thereof as of the date hereof as disclosed on
Schedule 4.01-b.
5.13. Sale and Leaseback. Parent shall not, and shall not permit any
of its Subsidiaries to, enter into any Sale and Leaseback if the Attributable
Debt of such Sale and Leaseback exceeds the difference between (a) $10,000,000,
minus (b) the sum of (i) the aggregate amount of all Attributable Debt of all
other Sale and Leasebacks occurring on and after the Effective Date plus (ii)
the aggregate outstanding principal amount of other Debt of Parent and their
Subsidiaries permitted pursuant to Section 5.06.
5.14. Business Parent and CA Canada shall not, and shall not
permit any of its Subsidiaries to, change the nature of its business as
conducted on the Effective Date. Neither Parent nor any Subsidiary of Parent
(other than CAFS) shall engage at any time in any business now or hereafter
conducted by CAFS. CAFS shall not engage in any business other than making
direct and indirect loans to or acquiring existing loans made to residential
consumers to acquire building materials sold by Parent or a Guarantor for use
in the construction or improvement of personal residences and the
securitization of such loans.
5.15. Transactions with Affiliates. Except as permitted herein, Parent
and CA Canada shall not, and shall not permit any of its Subsidiaries to, enter
into or be party to a transaction with any Affiliate of such Person, except on
terms no less favorable than could be obtained on an arm's-length basis with a
Person that is not an Affiliate of such Person.
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5.16. Compliance with ERISA. Parent and CA Canada shall not, and shall
not permit any of its Subsidiaries to, directly or indirectly, or permit any
member of such Person's Controlled Group to directly or indirectly, (a)
terminate any Plan so as to result in any material (in the opinion of Agent)
liability to any Obligor or any member of its Controlled Group, (b) permit to
exist any ERISA Event, or any other event or condition which presents the risk
of any material (in the opinion of Agent) liability of any Obligor or any
member of its Controlled Group, (c) make a complete or partial withdrawal
(within the meaning of Section 4201 of ERISA) from any Multiemployer Plan so as
to result in any material (in the opinion of Agent) liability to any Obligor or
any member of its Controlled Group, (d) enter into any new Plan or modify any
existing Plan so as to increase its obligations thereunder (except in the
ordinary course of business consistent with past practice) which could result
in any material (in the opinion of Agent) liability to any Obligor or any
member of its Controlled Group, or (e) permit the present value of all benefit
liabilities, as defined in Title IV of ERISA, under each Plan of each Obligor
or any member of its Controlled Group (using the actuarial assumptions utilized
by the PBGC upon termination of a Plan) to materially (in the opinion of Agent)
exceed the fair market value of Plan assets allocable to such benefits all
determined as of the most recent valuation date for each such Plan.
5.17. Note Purchase Agreement. Parent shall not, and shall not permit
any of its Subsidiaries to, enter into or permit to exist any amendment or
restatement of any Note Purchase Agreement, Senior Note or other Senior Note
Paper which has the effect of (a) increasing the principal amount of all Senior
Notes outstanding on March 1, 1998, minus the aggregate amount of all principal
of all Senior Notes repaid on and after March 1, 1998, (b) increasing any
applicable interest rate, (c) accelerating any date specified for a required
prepayment or repayment of principal of any Senior Note, (d) increasing the
amount of any required prepayment or repayment of principal of any Senior Note,
or (e) increasing the obligations of any guarantor of any obligations under any
Note Purchase Agreement, any Senior Note or other Senior Note Paper.
5.18. Swap Exposure. Parent shall not, and shall not permit any of its
Subsidiaries to, enter into or become liable in respect of any Hedge Agreement
other than (a) with respect any Hedge Agreement entered into solely to manage
risk associated with interest to accrue with respect to Funded Debt of Parent
or such Subsidiary of Parent, Hedge Agreements pursuant to which the aggregate
notional amount (together with the aggregate notional amount of all other Hedge
Agreements) does not exceed the aggregate principal amount of all Funded Debt,
(b) the Currency Swap (1998) (excluding any amendment which increases the
obligations of CA Canada), and (c) other Hedge Agreements entered into by
Parent or any of its Subsidiaries solely to manage risk associated with
interest rate and currency value fluctuations (and not for any speculative
purpose such as making a profit (or incurring a loss) solely as a result of
interest rate or currency value fluctuations or timing of payments).
5.19. CAFS. CAFS shall not engage in any activities other than (a)
ownership of equity in CAFS Subsidiaries, (b) extensions of credit to a CAFS
Subsidiary and (c) borrowings from Cameron.
5.20. Subsidiaries and Obligors. Parent and CA Canada shall not permit
any of its Subsidiaries and Affiliates or any other Obligor to violate any
provision of this Article V.
5.21. Intercompany Advances. Neither Parent nor any Guarantor shall
make any loans,
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advances, extensions of credit to, or Investments in CA Canada, any Subsidiary
of CA Canada or any Person organized under the Laws of any Tribunal other than
the United States or any subdivision of the United States (other than CAFS
Financial Services, Inc.) such that the total amount outstanding of such loans,
advances, extensions of credit or Investments at any one time shall be in
excess of $30,000,000.
ARTICLE VI. AFFIRMATIVE COVENANTS
So long as the Commitment or any Advance or any Reimbursement
Obligations is outstanding, or Parent, CA Canada, or any other Obligor owes any
other amount hereunder or under any other Loan Paper:
6.01. Preservation of Existence and Similar Matters. Parent and CA
Canada each shall:
(a) preserve and maintain, or timely obtain and thereafter preserve,
maintain and comply with, their respective existence, Rights, franchises,
Licenses, authorizations, consents, privileges and all other authorizations
from any Tribunal, the loss of which could have a Material Adverse Change; and
(b) qualify and remain qualified and authorized to do business in
each jurisdiction in which the character of their respective Properties or the
nature of its business requires such qualification or authorization, except
where the failure to be so qualified and authorized would not result in a
Material Adverse Change.
6.02. Licenses and Material Agreements. Parent and CA Canada shall
maintain and comply in all material respects with all agreements necessary for
it to own, maintain, or operate any of its businesses or Properties.
6.03. Compliance with Laws. Parent and CA Canada shall comply in all
material respects with all applicable Laws.
6.04. Maintenance of Properties. Parent and CA Canada shall maintain
or cause to be maintained all its Properties in good repair, working order and
condition, taken as a whole, ordinary wear and tear excepted, and from time to
time make or cause to be made all appropriate repairs, renewals, replacements,
additions, betterments and improvements thereto.
6.05. Payment of Taxes and Other Indebtedness. Parent and CA Canada
will pay and discharge (a) before penalty all Taxes, (b) when due all lawful
claims (including claims for labor, materials and supplies), which, if unpaid,
might give rise to a Lien upon any of its property, except to the extent
contested in good faith and for which adequate reserves have been established
therefor in accordance with GAAP, and (c) when due all of its other Debt,
obligations and liabilities to the extent that the failure to so pay would
result in an Event of Default described in Section 7.01(i), except as
prohibited hereunder.
6.06. ERISA Compliance. Parent and CA Canada will (a) make prompt
payment of all contributions required under all Plans, and (b) notify Agent
immediately if (i) there is a "complete withdrawal" or "partial withdrawal"
(as described in ERISA Sections 4203 and 4205,
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respectively) by Parent, CA Canada or any ERISA Affiliate of Parent or CA
Canada from a Multiemployer Plan, (ii) Parent, CA Canada or any ERISA Affiliate
of Parent or of CA Canada is in "default" (as defined in ERISA Section 4219 (c)
(5)) with respect to payments to a Multiemployer Plan required by reason of its
complete or partial withdrawal from such Plan, (iii) a Multiemployer Plan of
Parent or CA Canada is in "reorganization" (as described in Internal Revenue
Code Section 418 or in Title IV of ERISA) or has "terminated" (as described in
ERISA Section 4041A), or (iv) there is an action brought against Parent, CA
Canada, or any ERISA Affiliate for failure to make contributions as required by
ERISA Section 515.
6.07. Insurance. Parent and CA Canada shall:
(a) Obtain and Maintain Insurance. Maintain and keep in force the
following policies of insurance:
(i) Hazard Insurance. Insurance against loss or
damage to each Facility by fire and any of the risks covered by
insurance of the type now known as "all risk coverage," in an
aggregate amount satisfactory to Agent and Canadian Agent or the full
replacement cost of the Facility, including, without limitation, the
cost of debris removal (exclusive of the cost of excavations,
foundations, and footings below the lowest basement floor), whichever
is greater; and a deductible from the loss payable for any casualty
not to exceed $25,000 per occurrence, unless a higher amount is
required by Applicable Law. The policies of insurance carried in
accordance with this Section 6.07(a)(i) shall contain the "Replacement
Cost Endorsement" and an "Agreed Amount Endorsement";
(ii) Business Interruption Insurance. Business
interruption insurance in the minimum amount equal to Parent's and CA
Canada's Net Income for the preceding fiscal year divided by four;
(iii) Personal Property Insurance. Insurance against
loss or damage to any personal property of Parent, CA Canada, and
their respective Subsidiaries by fire and other risks covered by
insurance of the type now known as "all risk coverage";
(iv) Public Liability Insurance. Comprehensive public
liability insurance (including, without limitation, coverage for
elevators and escalators) on an "occurrence basis" against claims for
"personal injury", including, without limitation, bodily injury, death
or property damage occurring on, in or about the Facility and the
adjoining streets, sidewalks and passageways, such insurance to afford
immediate minimum protection to a limit of not less than $10,000,000
for bodily injury and property damage for any single occurrence;
(v) Workers' Compensation Insurance. Either or a
combination of workers' compensation insurance (including, without
limitation, employer's liability insurance) or a program of
self-insurance (if permitted by Applicable Law) for all employees of
Parent, CA Canada, and their respective Subsidiaries required to be
covered by Applicable Law in such amount as is generally carried in
accordance with sound business practice by companies in similar
businesses similarly situated, or, if higher limits are established by
Applicable Law, then in such amounts; and
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(vi) Other Insurance. Such other insurance, and in
such amounts, as may be required by any Tribunal having jurisdiction
with respect thereto or as is carried generally in accordance with
sound business practice by companies in businesses similarly situated
or as may be reasonably required from time to time by Agent or
Canadian Agent.
(b) General Insurance Provisions. Cause all policies of insurance
required by the provisions of Section 6.07(a) to:
(i) Contain an endorsement or agreement by the
insurer that any loss shall be payable in accordance with the terms of
such policy notwithstanding any act or negligence of the insured which
might otherwise result in forfeiture of said insurance and the further
agreement of the insurer waiving all rights of setoff, counterclaim or
deductions against the insured;
(ii) Be issued by companies having an A.M. Best Co.
policyholder's rating of "A" or better and a financial size category
of "V" or better. Insurance carriers with lesser ratings are
acceptable if they present a reinsurance agreement containing a direct
access clause with a company or companies that meet such rating
requirement. Coverage amounts shall not exceed 5% of carrier surplus
and capital values unless approved in writing by Agent or reinsurance
is carried;
(iii) Be issued by carriers that are fully and properly
licensed in each appropriate State or Province; and
(iv) Otherwise be in form and substance satisfactory
to Agent and Canadian Agent.
6.08. Inspection Rights. Parent and CA Canada shall permit Agent or
Canadian Agent, upon reasonable notice and during normal business hours, to
examine and make copies of and abstracts from its records and books of account,
to visit and inspect its Properties and to discuss its affairs, finances, and
accounts with any of its officers or accountants, all as Agent or Canadian
Agent may request.
6.09. Records and Books of Account; Changes in GAAP. Parent and CA
Canada shall keep adequate records and books of account in conformity with
GAAP.
6.10. Reporting Requirements. Parent shall furnish to Agent and each
Lender:
(a) During the Peak Period, as soon as available and in any event
within forty-five days after the end of each fiscal month, the consolidated and
consolidating balance sheet of Parent and its Subsidiaries as at the end of
such fiscal month, and the consolidated and consolidating statements of income,
changes in shareholders' equity and changes in cash flow of Parent and its
Subsidiaries for such fiscal month and for the portion of the fiscal year
ending with such fiscal month, setting forth, in comparative form, results for
the corresponding periods in the previous fiscal year, all in reasonable
detail, and certified by an officer of Parent acceptable to Agent as prepared
in accordance with GAAP, and fairly presenting the financial condition and
results of operations of Parent and its respective Subsidiaries (subject to
changes resulting from an audit
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and normal year-end adjustments);
(b) soon as available and in any event within forty-five days after
the end of each fiscal quarter, the consolidated and consolidating balance
sheet of Parent and its Subsidiaries as at the end of such fiscal quarter, and
the consolidated and consolidating statements of income, changes in
shareholders' equity and changes in cash flow of Parent and its Subsidiaries
for such fiscal quarter and for the portion of the fiscal year ending with such
fiscal quarter, setting forth, in comparative form, results for the
corresponding periods in the previous fiscal year, all in reasonable detail,
and certified by an officer of Parent acceptable to Agent as prepared in
accordance with GAAP, and fairly presenting the financial condition and results
of operations of Parent and its respective Subsidiaries (subject to changes
resulting from an audit and normal year-end adjustments);
(c) As soon as available and in any event within ninety days after
the end of each fiscal year of Parent, a consolidated and consolidating balance
sheet of Parent, and their respective Subsidiaries as at the end of such fiscal
year, and consolidated and consolidating statements of income, changes in
shareholders' equity, and changes in cash flow of Parent and its Subsidiaries
for such fiscal year, all in reasonable detail, prepared in accordance with
GAAP, and accompanied by an unqualified opinion of Auditor, which opinion shall
state that said financial statements were prepared in accordance with GAAP,
that the examination by Auditor in connection with such financial statements
was made in accordance with generally accepted auditing standards, and that
said financial statements present fairly the financial condition and results of
operations of Parent and its Subsidiaries;
(d) Promptly upon the first to occur of their becoming available or
their filing with the appropriate Tribunal, a copy of each Form 10-Q for each
fiscal quarter, each Form 10-K for each fiscal year, if required to be prepared
under Regulation 14a-3, promulgated by the Securities and Exchange Commission
pursuant to the Securities Exchange Act of 1934, as amended, a copy of Parent's
proxy materials provided to its shareholders, financial statement, report,
notice, proxy statement, regular, periodic or special report, registration
statement, prospectus, and all other information, and all amendments thereto,
together with all exhibits and schedules to each of the foregoing, filed by
Parent or any of its Subsidiaries with the Securities and Exchange Commission
or any similar Tribunal, or otherwise provided to holders of securities issued
by Parent or any of its Subsidiaries;
(e) Promptly upon receipt thereof, copies of all material reports or
letters submitted to Parent by Auditor or any other accountants in connection
with any annual, interim, or special audit, including without limitation the
comment letter submitted to management in connection with any such audit;
(f) Together with each set of financial statements delivered
pursuant to Section 6.10(a), (b) and (c), a Compliance Certificate (with
calculations for the 365-day period ended on such fiscal quarter end);
(g) As soon as available and in any event within thirty days after
the end of each month, a Borrowing Base Certificate for such month;
(h) As soon as possible and in any event within two Business Days
after knowledge by
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an officer of Parent of the occurrence of any Default or Event of Default, a
notice from an officer of Parent acceptable to Agent, setting forth the details
of such Default or Event of Default, and the action being taken or proposed to
be taken with respect thereto;
(i) (i) As soon as possible and in any event within two days after
knowledge thereof by an officer of Parent, notice of any Litigation pending or
threatened against Parent or any Obligor which, if determined adversely, could
result in judgment, penalties, or damages equal to or in excess of $2,000,000,
together with a statement of an officer of Parent acceptable to Agent,
describing the allegations of such Litigation, and the action being taken or
proposed to be taken with respect thereto, (ii) within ninety days after the
end of each fiscal year, complete reports by counsel to Parent and each
Obligor, describing all Litigation of Parent and each Obligor, and (iii) within
forty-five days after each fiscal quarter in which a material change in
reported Litigation of the nature described above has occurred or additional
Litigation has been threatened or commenced, reports by counsel to Parent and
each Obligor, describing such material changes in or additions to the last
annual Litigation report;
(j) As soon as possible and in any event within two days after
knowledge thereof by an officer of Parent, notice of any claimed default,
actual default or the occurrence of any event or existence of any condition the
effect of which is to cause or permit the acceleration of any Debt of or
secured by any assets of any Obligor, with respect to Debt in the aggregate
amount equal to or in excess of $2,000,000;
(k) Promptly after filing or receipt thereof by an officer of
Parent, copies of all reports and notices that Parent, any of its Subsidiaries
and Affiliates and each Obligor (i) files or receives in respect of any Plan
with or from the Internal Revenue Service, the PBGC, or the United States
Department of Labor, or (ii) furnishes to or receives from any holders of any
Debt or Contingent Liability that is not duplicative of, or subsumed in,
reports or notices provided to Agent or Lenders hereunder, if in the case of
clauses (i) and (ii), any information or dispute referred to therein could
result in a Default or an Event of Default;
(l) Parent will notify Agent or Canadian Agent, as applicable, in
writing, promptly upon Parent learning, of any of the following which has a
reasonable likelihood of resulting in liability in excess of $500,000:
(i) each Environmental Claim which Parent receives,
including one to take any remedial, removal or other action with respect to any
Hazardous Materials contained on any property, whether or not owned by Parent;
(ii) each notice of violation of any Environmental
Law; and
(iii) each commencement of any judicial or
administrative proceeding or investigation concerning an Environmental Claim
with respect to Parent;
(m) As soon as possible and in any event within five days after
knowledge thereof by an officer of Parent, notice of any act, event or
circumstance which could reasonably be foreseen to cause or result in a
Material Adverse Change to either of Borrowers, together with a statement of an
officer of Parent acceptable to Agent, describing the circumstances surrounding
the same, and the action being taken or proposed to be taken with respect
thereto;
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(n) As soon as possible and in any event within five days after the
occurrence thereof, notice of any requested amendment or restatement and any
effective amendment or restatement of any Note Purchase Agreement, any Senior
Note or any other Senior Note Paper, and any assignment of any Senior Note or
any other Senior Note Paper, together with copies of each document related
thereto;
(o) Promptly upon written request, such other information concerning
the condition or operations of Parent or any other Obligor, financial or
otherwise, as Agent may from time to time request;
(p) After any reallocation pursuant to Section 2.17 and such
Canadian Advances from ABN equal or exceed CDN$10,000,000, Borrowers must
deliver on a monthly basis to Agent a certificate demonstrating that the total
of all Advances from ABN, converted into Dollars does not exceed $10,000,000.
At any such time as the amount of outstanding Canadian Advances from ABN
exceeds $10,000,000 as set forth in the certificate delivered pursuant hereto,
CA Canada shall prepay the amount of such excess, the amount of such excess to
be applied to ABN's portion of Canadian Advances;
(q) As soon as it is available and in any event within five days
after the effectiveness thereof, a complete copy of all agreements, and all
amendments and restatements thereof, with respect to Debt of CAFS, each
securitization of any asset of CAFS and each agreement with respect to the
issuance of or any right to acquire any capital stock or other equity interest
of CAFS. As soon as possible or in any event within two Business Days after
knowledge by an officer of Parent or CAFS of the occurrence of any default or
event of default under any agreement related to Debt of CAFS or any agreement
related to securitization of any asset of CAFS, a notice from an officer of
Parent or CAFS acceptable to Agent, setting forth the details of such default
or event of default, and the action being taken or proposed to be taken with
respect thereto; and
(r) Promptly if Parent or any other Obligor discovers or determines
that any computer equipment or software (including those of its suppliers and
vendors) that is material to its or any of its Subsidiaries' business and
operations will not be Year 2000 Compliant on a timely basis, except to the
extent that such failure is not, and could not reasonably be expected to cause,
a Material Adverse Change.
6.11. Solvency. Each Obligor shall continue to be Solvent.
6.12. Subsidiaries and Obligor. Parent and CA Canada shall cause each
of its Subsidiaries and Affiliates and each Obligor to comply with each
provision of this Article VI.
6.13. Further Assurances. Parent and CA Canada will make, execute or
endorse, and acknowledge and deliver or file or cause the same to be done, all
such vouchers, invoices, notices, certifications and additional agreements,
undertakings, or other assurances, and take any and all such other action, as
Agent may, from time to time, deem reasonably necessary or proper in connection
with any of the Loan Papers and the obligations of Parent and CA Canada
thereunder.
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ARTICLE VII. EVENTS OF DEFAULT
7.01. Events of Default. Any one or more of the following shall be an
"Event of Default" hereunder, if the same shall occur for any reason
whatsoever, whether voluntary or involuntary, by operation of Law, or
otherwise:
(a) Parent shall fail to pay any principal, interest, fees or other
amounts payable under any Loan Paper on the date due;
(b) CA Canada shall fail to pay any principal, interest, fees or
other amounts payable under any Loan Paper on the date due;
(c) Any representation or warranty made or deemed made by any
Obligor (or any of its officers or representatives) under or in connection with
any Loan Paper shall prove to have been incorrect or misleading in any material
respect when made or deemed made;
(d) Any Obligor shall fail to perform or observe any term or covenant
contained in Article V;
(e) Any Obligor shall fail to perform or observe any other term or
covenant contained in any Loan Paper, other than those described in Section
7.01(a), (b), (c) and (d), and such failure shall not be remedied within (i)
thirty days following the earlier of knowledge thereof by such Obligor or an
officer of such Obligor, or of written notice by Agent to Parent, with respect
to any failure to perform or observe the provisions of Sections 6.01, 6.02,
6.03 and 6.04, and (ii) ten Business Days following the earlier of knowledge
thereof by such Obligor or an officer of such Obligor, or of written notice by
Agent to Parent, with respect to any other provision of any Loan Paper;
(f) Any Loan Paper or provision thereof shall, for any reason, not
be valid and binding on the Obligor signatory thereto, or not be in full force
and effect, or shall be declared to be null and void; the validity or
enforceability of any Loan Paper shall be contested by any Obligor; any Obligor
shall deny that it has any or further liability or obligation under its
respective Loan Papers; or any default or breach under any provision of any
Loan Papers shall continue after the applicable grace period, if any, specified
in such Loan Paper;
(g) Any of the following shall occur: (i) any Obligor shall make an
assignment for the benefit of creditors or be unable to pay its debts generally
as they become due; (ii) any Obligor shall petition or apply to any Tribunal
for the appointment of a trustee, receiver, or liquidator of it, or of any
substantial part of its assets, or shall commence any proceedings relating to
any Obligor under any Debtor Relief Laws; (iii) any such petition or
application shall be filed, or any such proceedings shall be commenced, against
any Obligor, or an order, judgment or decree shall be entered appointing any
such trustee, receiver, or liquidator, or approving the petition in any such
proceedings; (iv) any final order, judgment, or decree shall be entered in any
proceedings against any Obligor decreeing its dissolution; or (v) any final
order, judgment, or decree shall be entered in any proceedings against any
Obligor decreeing its split-up which requires the divestiture of a substantial
part of its assets;
(h) Any Event of Default (as defined in each Note Purchase
Agreement) shall occur;
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(i) Parent or any other Obligor shall fail to pay any (A) Funded
Debt (other than Debt under the Loan Papers or any Note Purchase Agreement) or
obligations in respect of Capital Leases (other than Debt under the Loan Papers
or any Note Purchase Agreement) in an aggregate amount of $5,000,000 or more
when due (whether by scheduled maturity, required prepayment, acceleration,
demand, or otherwise) or (B) other Debt (other than Debt under the Loan Papers
or any Note Purchase Agreement and Debt described in clause (A) immediately
preceding), except to matters being disputed or contested in good faith, in an
aggregate amount of $5,000,000 or more when due (whether by scheduled maturity,
required prepayment, acceleration, demand, or otherwise), and such failure
shall continue after the applicable grace period, if any, specified in the
agreement or instrument relating to such Debt (being the Debt described in
either of clauses (A) or (B) immediately preceding); Parent or any other
Obligor shall fail to perform or observe any term or covenant contained in any
agreement or instrument relating to any such Debt, when required to be
performed or observed, and such failure shall continue after the applicable
grace period, if any, specified in such agreement or instrument, and can result
in acceleration of the maturity of such Debt; or any such Debt shall be
declared to be due and payable, or required to be prepaid (other than by a
regularly scheduled required prepayment), prior to the stated maturity thereof;
(j) Any Obligor shall have any final judgment(s) outstanding against
it for the payment of $5,000,000 or more, and such judgment(s) shall remain
unstayed, in effect, and unpaid for the period of time after which the judgment
holder may and may cause the creation of Liens against or seizure of any of its
Property;
(k) Any ERISA Event shall have occurred with respect to a Plan of
Parent, and the sum of the Insufficiency of such Plan and liabilities relating
thereto is equal to or greater than $1,000,000; or Parent or any ERISA
Affiliate of Parent shall have committed a failure described in Section
302(f)(l) of ERISA, and the amount determined under Section 302(f)(3) of ERISA
is equal to or greater than $5,000,000;
(l) Parent or any ERISA Affiliate of Parent shall have been notified
by the sponsor of a Multiemployer Plan that (A) it has incurred Withdrawal
Liability to such Plan in an amount that, exceeds $5,000,000 or requires
payments exceeding $1,000,000 per annum, or (B) such Plan is in reorganization
or is being terminated, within the meaning of Title IV of ERISA, if as a result
thereof the aggregate annual contributions to all Multiemployer Plans in
reorganization or being terminated is increased over the amounts contributed to
such Plans for the preceding Plan year by an amount exceeding $5,000,000;
(m) Any Obligor shall be required under any Environmental Law (i) to
implement any remedial, neutralization, or stabilization process or program,
the cost of which would constitute a Material Adverse Change, or (ii) to pay
any penalty, fine, or damages in an aggregate amount of $5,000,000 or more; or
(n) Any Property (whether leased or owned), or the operations
conducted thereon by any Obligor or any current or prior owner or operator
thereof (in the case of real Property), shall violate or have violated any
applicable Environmental Law, if such violation would constitute a Material
Adverse Change; or such Obligor shall not obtain or maintain any License
required to be obtained or filed under any Environmental Law in connection with
the use of such Property and
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assets, including without limitation past or present treatment, storage,
disposal, or release of Hazardous Materials into the environment, if the
failure to obtain or maintain the same would constitute a Material Adverse
Change.
7.02. Remedies Upon Default. If an Event of Default described in
Section 7.01(g) shall occur with respect to any Obligor, the aggregate unpaid
principal balance of and accrued interest on all Advances shall, to the extent
permitted by Applicable Law, thereupon become due and payable concurrently
therewith, without any action by Agent, Canadian Agent, Issuing Bank, Canadian
Issuing Bank or any Lender, and without diligence, presentment, demand,
protest, notice of protest or intent to accelerate, or notice of any other
kind, all of which are hereby expressly waived. Subject to the foregoing
sentence, if any Event of Default shall occur and be continuing, Agent or
Canadian Agent, as the case may be at its election, do any one or more of the
following:
(a) Declare the entire unpaid balance of all Domestic Advances or
Canadian Advances, as the case may be, immediately due and payable, whereupon
it shall be due and payable without diligence, presentment, demand, protest,
notice of protest or intent to accelerate, or notice of any other kind (except
notices specifically provided for under Section 7.01), all of which are hereby
expressly waived (except to the extent waiver of the foregoing is not permitted
by Applicable Law);
(b) Terminate the Domestic Commitment or the Canadian Commitment,
as the case maybe;
(c) Enforce any Rights under Section 2.15(f) or Section 2.16(f);
(d) Reduce any claim of Agent, Canadian Agent, Issuing Bank,
Canadian Issuing Bank and Lenders to judgment; and
(e) Exercise any Rights afforded under any Loan Papers, by Law,
including but not limited to the UCC, at equity, or otherwise.
7.03. Cumulative Rights. All Rights available to Agent, Canadian
Agent, Issuing Bank, Canadian Issuing Bank and Lenders under the Loan Papers
shall be cumulative of and in addition to all other Rights granted thereto at
Law or in equity, whether or not amounts owing thereunder shall be due and
payable, and whether or not Agent, Canadian Agent, Issuing Bank, Canadian
Issuing Bank or any Lender shall have instituted any suit for collection or
other action in connection with the Loan Papers.
7.04. Waivers. The acceptance by Agent, Canadian Agent, Issuing Bank,
Canadian Issuing Bank or any Lender at any time and from time to time of
partial payment of any amount owing under any Loan Papers shall not be deemed
to be a waiver of any Default or Event of Default then existing. No waiver by
Agent, Canadian Agent, Issuing Bank, Canadian Issuing Bank or any Lender of any
Default or Event of Default shall be deemed to be a waiver of any Default or
Event of Default other than such Default or Event of Default. No delay or
omission by Agent, Canadian Agent, Issuing Bank, Canadian Issuing Bank or any
Lender in exercising any Right under the Loan Papers shall impair such Right or
be construed as a waiver thereof or an acquiescence therein, nor shall any
single or partial exercise of any such Right preclude other or further exercise
thereof, or the exercise of any other Right under the Loan Papers or otherwise.
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7.05. Performance by Agent or any Lender. Should any covenant of any
Obligor fail to be performed in accordance with the terms of the Loan Papers,
Agent may, at its option, perform or attempt to perform such covenant on behalf
of such Obligor. Notwithstanding the foregoing, it is expressly understood that
none of Agent, Canadian Agent, Issuing Bank, Canadian Issuing Bank or any
Lender assumes, and shall not ever have, except by express written consent of
Agent, Canadian Agent, Issuing Bank, Canadian Issuing Bank or such Lender, any
liability or responsibility for the performance of any duties or covenants of
any Obligor.
7.06. Expenditures. Borrowers shall reimburse Agent, Canadian Agent,
Issuing Bank, Canadian Issuing Bank and each Lender for any reasonable sums
spent by it in connection with the exercise of any Right provided herein. Such
sums shall bear interest at the lesser of (a) the greatest Base Rate (whether
or not in effect), plus 4.00% and (b) the Highest Lawful Rate, from the date
spent until the date of repayment by Borrowers.
7.07. Control. None of the covenants or other provisions contained in
this Agreement shall, or shall be deemed to, give Agent, Canadian Agent,
Issuing Bank, Canadian Issuing Bank or any Lender any Rights to exercise
control over the affairs and/or management of any Obligor, the power of Agent,
Canadian Agent, Issuing Bank, Canadian Issuing Bank and each Lender being
limited to the Rights to exercise the remedies provided in this Article;
provided, however, that if Agent, Canadian Agent, Issuing Bank, Canadian
Issuing Bank or any Lender becomes the owner of any partnership, stock or other
equity interest in any Person, whether through foreclosure or otherwise, it
shall be entitled to exercise such legal Rights as it may have by being an
owner of such stock or other equity interest in such Person.
ARTICLE VIII. THE AGENT AND CANADIAN AGENT
8.01. Authorization and Action. Each Lender and Issuing Bank hereby
appoints and authorizes Agent to take such action as Agent on its behalf and to
exercise such powers under this Agreement and the other Loan Papers as are
delegated to the Agent by the terms of the Loan Papers, together with such
powers as are reasonably incidental thereto. As to any matters not expressly
provided for by this Agreement and the other Loan Papers (including without
limitation enforcement or collection of the Notes), Agent shall not be required
to exercise any discretion or take any action, but shall be required to act or
to refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of Determining Lenders (or all Lenders, if
required under Section 9.01), and such instructions shall be binding upon all
Lenders and Issuing Bank; provided, however, that Agent shall not be required
to take any action which exposes Agent to personal liability or which is
contrary to any Loan Papers or Applicable Law. Agent agrees to give to each
Lender and Issuing Bank notice of each notice given to it by Parent pursuant to
the terms of this Agreement, and to distribute to each applicable Lender and
Issuing Bank in like funds all amounts delivered to Agent by Parent for the
Ratable or individual account of any Lender or Issuing Bank, as appropriate.
Each Canadian Lender and Canadian Issuing Bank hereby appoints and authorizes
Canadian Agent to take such action as Canadian Agent on its behalf and to
exercise such powers under this Agreement and the other Loan Papers as are
delegated to the Canadian Agent by the terms of the Loan Papers, together with
such powers as are reasonably incidental thereto. Canadian Agent agrees to give
to each Canadian Lender and Canadian Issuing Bank notice of each notice given
to it by CA Canada pursuant to the terms of
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this Agreement, and to distribute to each applicable Canadian Lender and
Canadian Issuing Bank in like funds all amounts delivered to Canadian Agent by
CA Canada for the Ratable or individual account of any Canadian Lender or
Canadian Issuing Bank, as appropriate.
8.02. Agent's Reliance, Etc. Neither Agent, Canadian Agent, nor any of
their directors, officers, agents, employees, or representatives shall be
liable for any action taken or omitted to be taken by it or them under or in
connection with this Agreement or any other Loan Paper, except for its or their
own gross negligence or willful misconduct. Without limitation of the
generality of the foregoing, Agent and Canadian Agent (a) may treat the payee
of any Note as the holder thereof until Agent or Canadian Agent receives
written notice of the assignment or transfer thereof signed by such payee and
in form satisfactory to Agent or Canadian Agent, as the case may be; (b) may
consult with legal counsel (including counsel for Parent, CA Canada, or any of
their respective Subsidiaries), independent public accountants, and other
experts selected by it, and shall not be liable for any action taken or omitted
to be taken in good faith by it in accordance with the advice of such counsel,
accountants, or experts; (c) makes no warranty or representation to any Lender,
Issuing Bank, Canadian Issuing Bank and shall not be responsible to any Lender,
Issuing Bank, or Canadian Issuing Bank for any statements, warranties, or
representations made in or in connection with this Agreement or any other Loan
Papers; (d) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants, or conditions of this
Agreement or any other Loan Papers on the part of any Obligor or its
Subsidiaries or to inspect the Property (including the books and records) of
any Obligor or its Subsidiaries; (e) shall not be responsible to any Lender,
Issuing Bank, or Canadian Issuing Bank for the due execution, legality,
validity, enforceability, genuineness, sufficiency, or value of this Agreement,
any other Loan Papers, or any other instrument or document furnished pursuant
hereto; and (f) shall incur no liability under or in respect of this Agreement
or any other Loan Papers by acting upon any notice, consent, certificate, or
other instrument or writing believed by it to be genuine and signed or sent by
the proper party or parties.
8.03. NationsBank, N.A., Canadian Imperial Bank of Commerce and
Affiliates. With respect to its Commitment, its Advances, and any Loan Papers,
NationsBank, N.A. and the Canadian Imperial Bank of Commerce have the same
Rights under this Agreement as any other Lender and may exercise the same as
though it were not Agent or Canadian Agent. NationsBank, N.A., the Canadian
Imperial Bank of Commerce and their Affiliates may accept deposits from, lend
money to, act as trustee under indentures of, and generally engage in any kind
of business with, any Obligor, any Affiliate thereof, and any Person who may do
business therewith, all as if NationsBank, N.A. or the Canadian Imperial Bank
of Commerce were not Agent or Canadian Agent respectively, and without any duty
to account therefor to any Lender.
8.04. Lender Credit Decision. Each Lender, Issuing Bank and Canadian
Issuing Bank acknowledges that it has, independently and without reliance upon
Agent, Canadian Agent, any other Lender, Issuing Bank, or Canadian Issuing
Bank, and based on the financial statements referred to in Section 4.04 and
such other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Lender, Issuing
Bank and Canadian Issuing Bank also acknowledges that it will, independently
and without reliance upon Agent, Canadian Agent, any other Lender, Issuing
Bank, or Canadian Issuing Bank and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement and the other
Loan Papers.
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<PAGE> 80
8.05. Indemnification by Lenders. LENDERS SHALL INDEMNIFY AGENT,
CANADIAN AGENT AND ARRANGER, PRO RATA, FROM AND AGAINST ANY AND ALL
LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS,
SUITS, COSTS, EXPENSES, OR DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER WHICH
MAY BE IMPOSED ON, INCURRED BY, OR ASSERTED AGAINST AGENT, CANADIAN AGENT, OR
ARRANGER IN ANY WAY RELATING TO OR ARISING OUT OF ANY LOAN PAPERS OR ANY ACTION
TAKEN OR OMITTED BY AGENT, CANADIAN AGENT, OR ARRANGER THEREUNDER, INCLUDING
ANY NEGLIGENCE OF AGENT, CANADIAN AGENT OR ARRANGER; PROVIDED, HOWEVER, THAT NO
LENDER SHALL BE LIABLE FOR ANY PORTION OF SUCH LIABILITIES, OBLIGATIONS,
LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES, OR
DISBURSEMENTS RESULTING FROM AGENT'S, CANADIAN AGENT'S OR ARRANGER'S GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT. Without limitation of the foregoing, Lenders
shall reimburse Agent, Canadian Agent, or Arranger as the case may be, Pro
Rata, promptly upon demand for any out-of-pocket expenses (including reasonable
attorneys' fees) incurred by Agent, Canadian Agent or Arranger in connection
with the preparation, execution, delivery, administration, modification,
amendment, or enforcement (whether through negotiation, legal proceedings or
otherwise) of, or legal and other advice in respect of rights or
responsibilities under, the Loan Papers. Agent, Canadian Agent, or Arranger as
the case may be, may make demand for any amounts claimed to be due under this
Section 8.05 on and after the third Business Day after Parent or any other
Obligor has failed or refused to pay the full amount demanded. The indemnity
provided in this Section 8.05 shall survive the termination of this Agreement.
8.06. Successor Agent. Agent may resign at any time by giving written
notice thereof to Lenders, Issuing Bank, Canadian Issuing Bank, Parent, and CA
Canada and may be removed at any time with or without cause by the action of
all Lenders (other than Agent, if it is a Lender). Upon any such resignation,
Determining Lenders shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed and shall have accepted such
appointment within thirty days after the retiring Agent's giving of notice of
resignation, then the retiring Agent may, on behalf of Lenders, appoint a
successor Agent, which shall be a commercial bank organized under the Laws of
the United States of America or of any State thereof and having a combined
capital and surplus of at least $50,000,000. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the Rights and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations under the Loan Papers, provided that if the retiring or removed
Agent is unable to appoint a successor Agent, Agent shall, after the expiration
of a sixty day period from the date of notice, be relieved of all obligations
as Agent hereunder. Notwithstanding any Agent's resignation or removal
hereunder, the provisions of this Article VIII shall continue to inure to its
benefit as to any actions taken or omitted to be taken by it while it was Agent
under this Agreement.
8.07 Successor Canadian Agent. Canadian Agent may resign at any time
by giving written notice thereof to Lenders, Issuing Bank, Canadian Issuing
Bank, Parent, and CA Canada and may be removed at any time with or without
cause by the action of all Lenders (other than Canadian Agent, if it is a
Lender). Upon any such resignation, Determining Lenders shall have
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<PAGE> 81
the right to appoint a successor Canadian Agent. If no successor Canadian Agent
shall have been so appointed and shall have accepted such appointment within
thirty days after the retiring Canadian Agent's giving of notice of
resignation, then the retiring Canadian Agent may, on behalf of Lenders,
appoint a successor Canadian Agent, which shall be a commercial bank organized
under the Laws of the dominion of Canada or of any Province thereof and having
a combined capital and surplus of at least CDN$50,000,000. Upon the acceptance
of any appointment as Canadian Agent hereunder by a successor Canadian Agent,
such successor Canadian Agent shall thereupon succeed to and become vested with
all the Rights and duties of the retiring Canadian Agent, and the retiring
Canadian Agent shall be discharged from its duties and obligations under the
Loan Papers, provided that if the retiring or removed Canadian Agent is unable
to appoint a successor Canadian Agent, Canadian Agent shall, after the
expiration of a sixty day period from the date of notice, be relieved of all
obligations as Canadian Agent hereunder. Notwithstanding any Canadian Agent's
resignation or removal hereunder, the provisions of this Article VIII shall
continue to inure to its benefit as to any actions taken or omitted to be taken
by it while it was Canadian Agent under this Agreement.
ARTICLE IX. MISCELLANEOUS
9.01. Amendments and Waivers. No amendment or waiver of any provision
of this Agreement or any other Loan Papers, nor consent to any departure by
Parent or any Obligor therefrom, shall be effective unless the same shall be in
writing and signed by Agent and the Canadian Agent with the consent of the
Determining Lenders, and then any such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given;
provided, however, that no amendment, waiver, or consent shall (and the result
of action or failure to take action shall not) unless in writing and signed by
all of Lenders, Agent and Canadian Agent, (a) increase the Commitment, (b)
reduce any principal, interest, fees, or other amounts payable hereunder, or
waive or result in the waiver of any Event of Default under Section 7.01(a),
(c) postpone any date fixed for any payment of principal, interest, fees, or
other amounts payable hereunder, (d) release any collateral or guaranties
securing any Obligor's obligations hereunder, other than releases contemplated
hereby and by the Loan Papers, (e) change the meaning of Specified Percentage
or the number of Lenders required to take any action hereunder, or (f) amend
this Section 9.01 or Section 9.03. No amendment, waiver, or consent shall
affect the Rights, duties, or obligations of Agent under any Loan Papers,
unless it is in writing and signed by Agent in addition to the requisite number
of Lenders. No amendment, waiver, or consent shall affect the Rights, duties,
or obligations of Issuing Bank or Canadian Issuing Bank under any Loan Papers,
unless it is in writing and signed by Issuing Bank or Canadian Issuing Bank, as
the case may be, in addition to the requisite number of Lenders.
9.02. Notices.
(a) Manner of Delivery. All notices communications and other
materials to be given or delivered under the Loan Papers shall, except in those
cases where giving notice by telephone is expressly permitted, be given or
delivered in writing. All written notices, communications and materials shall
be sent by registered or certified mail, postage prepaid, return receipt
requested, by telecopier, or delivered by hand. In the event of a discrepancy
between any telephonic notice and any written confirmation thereof, such
written confirmation shall be deemed the effective notice except to the extent
Agent, Canadian Agent, any Lender, Issuing Bank, Canadian Issuing Bank, Parent
or CA Canada has acted in reliance on such telephonic notice.
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<PAGE> 82
(b) Addresses. All notices, communications and materials to be given
or delivered pursuant to this Agreement (other than those required under
Article II) shall be given or delivered at the following respective addresses
and telecopier and telephone numbers and to the attention of the following
individuals or departments:
(a) If to Parent:
Cameron Ashley Building Products, Inc.
11651 Plano Road, Suite 100
Dallas, Texas 75243
Telephone No.: (214) 860-5120
Telecopier No.: (214) 860-5148
Attention: Mr. Ronald R. Ross
with a copy to: Mr. John Davis
(b) If to CA Canada:
Cameron Ashley Canada, Inc.
8619 52nd St.
Calgary Alberta T2C2R4
Telephone No.: (403) 720-0055
Telecopier No.: (403) 720-0099
Attention: Richard Friesen
with a copy to: Mr. John Davis
(c) If to Agent or Issuing Bank:
NationsBank, N.A.
NationsBank Plaza
901 Main Street, 67th Floor
Dallas, Texas 75202
Telephone No.: (214) 508-0978
Telecopier No.: (214) 508-0980
Attention: Mr. Dan Killian
(d) If to Canadian Agent or Canadian Issuing Bank:
Canadian Imperial Bank of Commerce
309 - 8th Avenue S.W.
3rd Floor
Calgary, AB T2P 2P2
Telephone No.: (403) 221-5338
Telecopier No.: (403) 221-5333
Attention: Mr. John Bathurst
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<PAGE> 83
(e) If to any Lender, to its address shown on Schedule 9.02
or at such other address or, telecopier or telephone number or to the attention
of such other individual or department as the party to which such information
pertains may hereafter specify for the purpose in a notice to the other
specifically captioned "Notice of Change of Address".
(c) Effectiveness. Each notice, communication and any material to be
given or delivered to any party pursuant to this Agreement shall be effective or
deemed delivered or furnished (i) if sent by mail, on the fifth day after such
notice, communication or material is deposited in the mail, addressed as above
provided, (ii) if sent by telecopier, when such notice, communication or
material is transmitted to the appropriate number determined as above provided
in this Section 9.02 and the appropriate receipt is received or otherwise
acknowledged, (iii) if sent by hand delivery or overnight courier, when left at
the address of the addressee addressed as above provided, and (iv) if given by
telephone, when communicated to the individual or any member of the department
specified as the individual or department to whose attention notices,
communications and materials are to be given or delivered except that notices of
a change of address, telecopier or telephone number or individual or department
to whose attention notices, communications and materials are to be given or
delivered shall not be effective until received; provided, however, that notices
to Agent and Canadian Agent pursuant to Article II shall be effective when
received. Parent and CA Canada agree that Agent and Canadian Agent shall have no
duty or obligation to verify or otherwise confirm telephonic notices given
pursuant to Article II, and AGREE TO INDEMNIFY AND HOLD HARMLESS AGENT, CANADIAN
AGENT, ARRANGER, ISSUING BANK, CANADIAN ISSUING BANK AND LENDERS FOR ANY AND ALL
LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS,
CLAIMS, COSTS, AND EXPENSES RESULTING, DIRECTLY OR INDIRECTLY, FROM ACTING UPON
ANY SUCH NOTICE.
9.03. Parties in Interest. All covenants and agreements contained in
this Agreement and all other Loan Papers shall bind and inure to the benefit of
the respective successors and assigns of the parties hereto. Each Lender may
from time to time assign or transfer its interests hereunder pursuant to
Section 9.04. No Obligor may assign or transfer any of its Rights or
obligations hereunder without the prior written consent of Lenders and, if such
Rights or obligation relate to any Letter of Credit, the Letter of Credit
Facility, any Canadian Letter of Credit or the Canadian Letter of Credit
Facility, Issuing Bank or Canadian Issuing Bank, as the case may be.
9.04. Assignments and Participations.
(a) Each Lender (an "Assignor") may assign its Rights and obligations
as a Lender under the Loan Papers to one or more Eligible Assignees pursuant to
an Assignment and Acceptance, so long as (i) each assignment shall be of a
constant, and not a varying percentage of all Rights and obligations
thereunder, (ii) each Assignor shall obtain in each case the prior written
consent of Agent or Canadian Agent, as the case may be, and Parent and CA
Canada (iii) each Assignee shall in each case pay a $2,500 processing fee to
Agent or Canadian Agent, as the case
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may be, and (iv) no such assignment is for an amount less than $5,000,000.
Within five Business Days after Agent or Canadian Agent receives notice of any
such assignment, Parent and CA Canada shall execute and deliver to Agent or
Canadian Agent, in exchange for the Notes issued to Assignor, new Notes to the
order of such Assignor and its assignee in amounts equal to their respective
Specified Percentages of the Commitment. Such new Notes shall be dated the
effective date of the assignment. It is specifically acknowledged and agreed
that on and after the effective date of each assignment, the assignee shall be
a party hereto and shall have the Rights and obligations of a Lender under the
Loan Papers.
(b) Each Lender may sell participations to one or more Persons in
all or any of its Rights and obligations under the Loan Papers; provided,
however, that (i) such Lender's obligations under the Loan Papers shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) such Lender shall
remain the holder of its Notes for all purposes of the Loan Papers, (iv) the
participant shall be granted the Right to vote on or consent to only those
matters described in Sections 9.01(a), (b), (c), (d), (e) and (f), (v) each
Obligor, Agent, Canadian Agent, Issuing Bank, Canadian Issuing Bank and other
Lenders shall continue to deal solely and directly with such Lender in
connection with its Rights and obligations under the Loan Papers, and (vi) no
such participation is for an amount less than $5,000,000.
(c) Any Lender may, in connection with any assignment or
participation, or proposed assignment or participation, disclose to the
assignee or participant, or proposed assignee or participant, any information
relating to any Obligor furnished to such Lender by or on behalf of any
Obligor.
(d) Notwithstanding any other provision set forth in this Agreement,
(i) any Lender may at any time create a security interest in all or any portion
of its Rights under this Agreement (including, without limitation, the Advances
owing to it and the Notes held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal Reserve
System, and (ii) no participant of any Lender may further assign or participate
any of its interest in the Loan Papers to any Person (except as may be required
by Law or a Tribunal having authority over such participant).
9.05. Sharing of Payments. If any Lender shall obtain any payment
(whether voluntary, involuntary, through the exercise of any Right of set-off,
or otherwise) on account of its Advances in excess of its Pro Rata share of
payments made by either of Borrowers, such Lender shall forthwith purchase
participations in Advances made by the other Lenders as shall be necessary to
share the excess payment Pro Rata with each of them; provided, however, that if
any of such excess payment is thereafter recovered from the purchasing Lender,
its purchase from each Lender shall be rescinded and each Lender shall repay
the purchase price to the extent of such recovery together with a Pro Rata
share of any interest or other amount paid or payable by the purchasing Lender
in respect of the total amount so recovered. Borrowers agree that any Lender so
purchasing a participation from another Lender pursuant to this Section 9.05
may, to the fullest extent permitted by Law, exercise all its Rights of payment
(including the Right of set-off) with respect to such participation as fully as
if such Lender were the direct creditor of each of Borrowers in the amount of
such participation.
9.06. Right of Set-off. Upon the occurrence and during the continuance
of any Event of
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Default, Agent, Canadian Agent, Issuing Bank, Canadian Issuing Bank and each
Lender is hereby authorized at any time and from time to time, to the fullest
extent permitted by Law, to set-off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by Agent, Canadian Agent, Issuing Bank, Canadian
Issuing Bank or such Lender to or for the credit or the account of Parent or CA
Canada against any and all of the obligations of Parent or CA Canada now or
hereafter existing under this Agreement and the other Loan Papers, whether or
not Agent, Canadian Agent, Issuing Bank, Canadian Issuing Bank or any Lender
shall have made any demand under this Agreement or the other Loan Papers, and
even if such obligations are unmatured. Each of Agent, Canadian Agent, Issuing
Bank, Canadian Issuing Bank and each Lender shall promptly notify Borrowers
after any such set-off and application, provided that the failure to give such
notice shall not affect the validity of such set-off and application. The
Rights of Agent, Canadian Agent, Issuing Bank, Canadian Issuing Bank and each
Lender under this Section 9.06 are in addition to other Rights (including,
without limitation, other Rights of set-off) which Agent, Canadian Agent,
Issuing Bank, Canadian Issuing Bank and such Lender may have.
9.07. Costs, Expenses, and Taxes.
(a) Borrowers agree severally to pay on demand (i) all costs and
expenses (including reasonable attorneys' fees and expenses) of Agent and
Canadian Agent in connection with the preparation, negotiation, administration,
interpretation, modification, amendment, waiver, and release of all Loan
Papers, and (ii) all costs and expenses (including reasonable attorneys' fees
and expenses) of Agent, Canadian Agent, Issuing Bank, Canadian Issuing Bank and
each Lender in connection with any restructuring, work-out, or collection of
any portion of the Obligations or the enforcement of any Loan Papers.
(b) In addition, Borrowers shall pay any and all stamp, debt, and
other Taxes payable or determined to be payable in connection with any payment
hereunder (other than Taxes on the overall net income of Agent, Canadian Agent,
Issuing Bank, Canadian Issuing Bank or any Lender or franchise Taxes or Taxes
on capital or capital receipts of Agent, Canadian Agent, Issuing Bank, Canadian
Issuing Bank or any Lender), or the execution, delivery, or recordation of any
Loan Papers, and agrees to save Agent, Canadian Agent, Issuing Bank, Canadian
Issuing Bank and each Lender harmless from and against any and all liabilities
with respect to, or resulting from any delay in paying or omission to pay any
Taxes in accordance with this Section 9.07, including any penalty, interest,
and expenses relating thereto. All payments by Borrowers or any Subsidiary of
either of Borrowers under any Loan Papers shall be made free and clear of and
without deduction for any present or future Taxes (other than Taxes on the
overall net income of Agent, Canadian Agent, Issuing Bank, Canadian Issuing
Bank or any Lender of any nature now or hereafter existing, levied, or
withheld, or franchise Taxes or Taxes on capital or capital receipts of Agent,
Canadian Agent, Issuing Bank, Canadian Issuing Bank or any Lender), including
all interest, penalties, or similar liabilities relating thereto. If Borrowers
shall be required by Law to deduct or to withhold any Taxes from or in respect
of any amount payable hereunder, (i) the amount so payable shall be increased
to the extent necessary so that, after making all required deductions and
withholdings (including Taxes on amounts payable to Agent, Canadian Agent,
Issuing Bank, Canadian Issuing Bank or any Lender pursuant to this sentence),
Agent, Canadian Agent, Issuing Bank, Canadian Issuing Bank or any Lender
receives an amount equal to the sum it would have received had no such
deductions or withholdings been made, (ii) Borrowers shall make such deductions
or withholdings, and (iii) Borrowers shall pay the full amount deducted or
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withheld to the relevant taxing authority in accordance with Applicable Law.
Without prejudice to the survival of any other agreement of Borrowers
hereunder, the agreements and obligations of Borrowers contained in this
Section 9.07 shall survive the execution of this Agreement, termination of the
Commitment, repayment of the Obligations, satisfaction of each agreement
securing or assuring the Obligations and termination of this Agreement and each
other Loan Paper.
9.08. INDEMNIFICATION BY BORROWERS. BORROWERS AGREE JOINTLY AND
SEVERALLY TO INDEMNIFY, DEFEND, AND HOLD HARMLESS AGENT, CANADIAN AGENT,
ARRANGER, ISSUING BANK, CANADIAN ISSUING BANK, EACH LENDER AND THEIR RESPECTIVE
AFFILIATES, DIRECTORS, OFFICERS, AGENTS, EMPLOYEES, AND REPRESENTATIVES, FROM
AND AGAINST ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES,
ACTIONS, JUDGMENTS, SUITS, CLAIMS, COSTS, EXPENSES, AND DISBURSEMENTS OF ANY
KIND OR NATURE WHATSOEVER WHICH MAY BE IMPOSED ON, INCURRED BY OR ASSERTED
AGAINST ANY OF THEM IN ANY WAY RELATING TO OR ARISING OUT OF ANY LOAN PAPERS
(INCLUDING IN CONNECTION WITH OR AS A RESULT, IN WHOLE OR IN PART, OF THE
NEGLIGENCE OF ANY OF THEM), ANY TRANSACTION RELATED HERETO OR THERETO, OR ANY
ACT, OMISSION, OR TRANSACTION OF BORROWERS AND THEIR AFFILIATES WITH RESPECT
HERETO AND THERETO, OR ANY OF THEIR DIRECTORS, PARTNERS, OFFICERS, AGENTS,
EMPLOYEES, OR REPRESENTATIVES WITH RESPECT HERETO AND THERETO; PROVIDED,
HOWEVER, THAT NONE OF AGENT, CANADIAN AGENT, ARRANGER, ISSUING BANK, CANADIAN
ISSUING BANK OR ANY LENDER SHALL BE INDEMNIFIED, DEFENDED, AND HELD HARMLESS
PURSUANT TO THIS SECTION 9.08 TO THE EXTENT OF ANY LOSSES OR DAMAGES WHICH
EITHER OF BORROWERS PROVE WERE CAUSED BY THE INDEMNIFIED PARTY'S WILLFUL
MISCONDUCT OR GROSS NEGLIGENCE.
9.09. Rate Provision. It is not the intention of any party to any Loan
Papers to make an agreement violative of the Laws of any applicable
jurisdiction relating to usury. In no event shall any Obligor or any other
Person be obligated to pay any amount in excess of the Maximum Amount. If
Agent, Canadian Agent, Issuing Bank, Canadian Issuing Bank or any Lender ever
receives, collects or applies, as interest, any such excess, such amount which
would be excessive interest shall be deemed a partial repayment of principal
and treated hereunder as such; and if principal is paid in full, any remaining
excess shall be paid to Parent, CA Canada or the other Person entitled thereto.
In determining whether or not the interest paid or payable, under any specific
contingency, exceeds the Maximum Amount, each Obligor, Agent, Canadian Agent,
Issuing Bank, Canadian Issuing Bank and each Lender shall, to the maximum
extent permitted under Applicable Laws, (a) characterize any nonprincipal
payment as an expense, fee or premium rather than as interest, (b) exclude
voluntary prepayments and the effect thereof, and (c) amortize, prorate,
allocate and spread in equal parts, the total amount of interest throughout the
entire contemplated term of the Obligations so that the interest rate is
uniform throughout the entire term of the Obligations; provided that if the
Obligations are paid and performed in full prior to the end of the full
contemplated term thereof, and if the interest received for the actual period
of existence thereof exceeds the Maximum Amount, Agent, Canadian Agent, Issuing
Bank, Canadian Issuing Bank or Lenders, as appropriate, shall refund to Parent
or CA Canada the
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amount of such excess or credit the amount of such excess against the total
principal amount owing, and, in such event, none or Agent, Canadian Agent,
Issuing Bank, Canadian Issuing Bank or any Lender shall be subject to any
penalties provided by any Laws for contracting for, charging or receiving
interest in excess of the Maximum Amount. This Section 9.09 shall control every
other provision of all agreements among the parties to the Loan Papers
pertaining to the transactions contemplated by or contained in the Loan Papers.
9.10. Severability. If any provision of any Loan Papers is held to be
illegal, invalid, or unenforceable under present or future Laws during the term
thereof, such provision shall be fully severable, the appropriate Loan Paper
shall be construed and enforced as if such illegal, invalid, or unenforceable
provision had never comprised a part thereof, and the remaining provisions
thereof shall remain in full force and effect and shall not be affected by the
illegal, invalid, or unenforceable provision or by its severance therefrom.
Furthermore, in lieu of such illegal, invalid, or unenforceable provision there
shall be added automatically as a part of such Loan Paper a legal, valid, and
enforceable provision as similar in terms to the illegal, invalid, or
unenforceable provision as may be possible.
9.11. Exceptions to Covenants. No Obligor shall be deemed to be
permitted to take any action or to fail to take any action that is permitted as
an exception to any covenant in any Loan Papers, or that is within the
permissible limits of any covenant, if such action or omission would result in
a violation of any other covenant in any Loan Papers.
9.12. Counterparts. This Agreement and the other Loan Papers may be
executed in any number of counterparts, all of which taken together shall
constitute one and the same instrument. In making proof of any such agreement,
it shall not be necessary to produce or account for any counterpart other than
one signed by the party against which enforcement is sought.
9.13. GOVERNING LAW; WAIVER OF JURY TRIAL.
(a) EXCEPT AS HEREINAFTER SET FORTH, THIS AGREEMENT AND ALL OTHER
LOAN PAPERS SHALL BE DEEMED TO BE CONTRACTS MADE IN DALLAS, TEXAS, AND SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS
(WITHOUT GIVING EFFECT TO CONFLICTS OF LAWS) AND THE UNITED STATES OF AMERICA.
THIS AGREEMENT AND ALL OTHER LOAN PAPERS, ONLY INSOFAR AS THEY RELATE TO THE
CANADIAN COMMITMENT, SHALL BE DEEMED TO BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE PROVINCE OF ALBERTA AND THE LAWS OF CANADA
APPLICABLE THEREIN. WITHOUT EXCLUDING ANY OTHER JURISDICTION, BORROWERS AGREE
THAT THE STATE AND FEDERAL COURTS OF TEXAS LOCATED IN DALLAS, TEXAS, WILL HAVE
JURISDICTION OVER PROCEEDINGS IN CONNECTION HEREWITH. TO THE MAXIMUM EXTENT
PERMITTED BY LAW, BORROWERS HEREBY WAIVE ANY RIGHT THAT THEY MAY HAVE TO A
TRIAL BY JURY OF ANY DISPUTE (WHETHER A CLAIM IN TORT, CONTRACT, EQUITY, OR
OTHERWISE) ARISING UNDER OR RELATING TO THIS AGREEMENT, THE OTHER LOAN PAPERS,
OR ANY RELATED MATTERS, AND AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED BEFORE
A JUDGE SITTING WITHOUT A JURY.
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(b) BORROWERS HEREBY WAIVE PERSONAL SERVICE OF ANY LEGAL PROCESS
BORROWERS AGREE THAT SERVICE OF PROCESS MAY BE MADE UPON THEM BY REGISTERED
MAIL (RETURN RECEIPT REQUESTED) DIRECTED TO EITHER PARENT OR CA CANADA AT ITS
RESPECTIVE ADDRESS DESIGNATED FOR NOTICE UNDER THIS AGREEMENT AND SERVICE SO
MADE SHALL BE DEEMED TO BE COMPLETED FIVE DAYS AFTER DEPOSIT IN THE UNITED
STATES MAIL. NOTHING IN THIS SECTION 9.13 SHALL AFFECT THE RIGHT OF AGENT OR
CANADIAN AGENT OR ANY LENDER TO SERVE LEGAL PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW.
9.14. RESTATEMENT. THIS AGREEMENT RESTATES IN ITS ENTIRETY THE
EXISTING AGREEMENT AND IS NOT INTENDED AS AND SHALL NOT BE CONSTRUED AS A
RELEASE OR NOVATION OF THE OBLIGATIONS OF EACH OBLIGOR PURSUANT TO THE EXISTING
AGREEMENT.
9.15. ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN PAPERS
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED
BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENT OF THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
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IN WITNESS WHEREOF, this Third Restated Credit Agreement is executed
as of the date first set forth above.
PARENT:
CAMERON ASHLEY BUILDING PRODUCTS,
INC.
By: /s/ J. Andrew Kerner
---------------------
,
(Print Name) (Print Title)
CA CANADA:
CAMERON ASHLEY CANADA, INC.
By: /s/ J. Andrew Kerner
---------------------
,
(Print Name) (Print Title)
AGENT:
NATIONSBANK, N.A.
By: /s/ Daniel M. Killian
---------------------
Daniel M. Killian, Vice President
CANADIAN AGENT:
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ J. Bathurst
---------------------
,
(Print Name) (Print Title)
CO-AGENT:
ABN AMRO BANK, N.V., Atlanta Agency
By: /s/ Robert A. Budnek
---------------------
,
(Print Name) (Print Title)
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By: /s/ Larry K. Kelley
---------------------
,
(Print Name) (Print Title)
ISSUING BANK:
NATIONSBANK, N.A.
By: /s/ Daniel M. Killian
---------------------
Daniel M. Killian, Vice President
CANADIAN ISSUING BANK:
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ J. Bathurst
---------------------
,
(Print Name) (Print Title)
LENDERS:
NATIONSBANK, N.A.
By: /s/ Daniel M. Killian
---------------------
Daniel M. Killian, Vice President
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ J. Bathurst
---------------------
,
(Print Name) (Print Title)
ABN AMRO BANK, N.V., Atlanta Agency
By: /s/ Robert A. Budnek
---------------------
,
(Print Name) (Print Title)
85
<PAGE> 91
By: /s/ Larry K. Kelley
---------------------
,
(Print Name) (Print Title)
WELLS FARGO BANK (TEXAS), N.A.
By: /s/ Juan J. Sanchez
---------------------
Juan J. Sanchez, Assistant Vice
President
SUNTRUST BANK, ATLANTA
By: /s/ Eric M. Johnson
---------------------
,
(Print Name) (Print Title)
By: /s/ Mary Crawford
---------------------
,
(Print Name) (Print Title)
86
<PAGE> 1
EXHIBIT 10.29
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made this 12th day of April, 1999, between WM.
CAMERON & CO., a Georgia corporation dba Cameron Ashley Building Products (the
"Company"), and GAROLD E. SWAN, a resident of the State of Texas ("Employee").
BACKGROUND
The Company desires to employ Employee on the terms and conditions set
forth below. Employee desires to accept employment on the terms and conditions
set forth below.
AGREEMENT
In consideration of the employment and continued employment of Employee
by the Company, the premises, and the mutual agreements hereinafter set forth,
the parties agree:
1. Definitions. The following terms used herein shall have the
definitions set forth below:
(a) "Business" or "Business of the Company" means the business
of the wholesale distribution, sale and marketing of building materials,
building supplies and mill work.
(b) "Cause" means conduct amounting to fraud or dishonesty
against the Company; Employee's violation of Sections 2(a) or (b) hereof, or any
of the Company's work rules or policies, or absences from work without a
reasonable excuse, if the President and Chief Executive Officer notifies
Employee of such violation or absence in writing and Employee fails to cure such
violation or absenteeism within five (5) days after written notice has been
given, provided that written notice relating to such violation or absenteeism
shall only be given once as it relates to a particular manner of conduct;
intoxication with alcohol or drugs while on Company business during regular
business hours; a conviction or plea of guilty or nolo contendere to a felony or
a crime involving dishonesty against the Company; or Employee's failure to
observe the requirements of Sections 2(c), 5 and 6 hereof.
(c) "Disability" means (i) the inability of Employee to
perform the duties of Employee's employment due to physical or emotional
incapacity or illness, where such inability is expected to be of long-continued
and indefinite duration or (ii) Employee shall be entitled to (x) disability
retirement benefits under the federal Social Security Act or (y) recover
benefits under any long-term disability plan or policy maintained by the
Company. In the event of a dispute, the determination of Disability shall be
made reasonably by the Board of Directors of the Company and shall be supported
by advice of a physician competent in the area to which such Disability relates.
(d) "Effective Date" means the date hereof.
<PAGE> 2
2. Terms of Engagement; Duties.
(a) The Company hereby employs Employee, commencing on the
Effective Date, and Employee hereby accepts employment by the Company subject to
the terms and conditions hereof. Employee shall report to, shall have the title
assigned by, and shall perform the duties assigned by the Chairman and CEO of
the Company and Cameron Ashley Building Products, Inc. (the "Parent") or other
senior executive of the Company from time to time in connection with the conduct
of the Business of the Company. Employee is engaged initially with the title and
functions of Executive Vice President and Chief Financial Officer (CFO) of the
Company and the Parent. Nothing herein shall preclude the Chairman and CEO of
the Company from changing the Employee's title and duties if the Chairman and
CEO of the Company has concluded in his reasonable judgment that such change is
in the Company's best interests. Employee shall not be required to reside
outside the Area (as defined in Section 6 hereof).
(b) Throughout the term of this Agreement, Employee shall:
(i) devote all of Employee's business effort, time,
energy and skill (reasonable vacations and reasonable absences due
to illness excepted) to the duties of Employee's employment
hereunder assigned by the senior officers of the Company;
(ii) faithfully, loyally, and industriously perform
such duties, subject to the control and supervision of the senior
officers of the Company; and
(iii) diligently follow and implement all lawful
management policies and decisions of the Company that are
communicated to Employee.
(c) During the term of this Agreement, Employee shall not be
engaged (whether or not during normal business hours) in any other business or
professional activity, whether or not such activity is pursued for gain, profit
or other pecuniary advantage; but this shall not be construed as preventing
Employee from (i) investing his personal assets in businesses which do not
compete with the Company in such form or manner as will not require any services
on the part of Employee in the operation or the affairs of the companies in
which such investments are made and in which his participation is solely that of
an investor, (ii) purchasing securities in any corporation whose securities are
regularly traded provided that such purchase shall not result in his
collectively owning beneficially at any time five percent (5%) or more of the
equity securities of any corporation engaged in a business competitive to that
of the Company, or (iii) participating in conferences, preparing or publishing
papers or books or teaching so long as the Employee's supervisor approves of
such activities prior to Employee's engaging in them.
3. Compensation.
(a) In consideration of the services rendered by Employee
pursuant to this Agreement, the Company shall provide the following:
(i) A base salary of Two Hundred Twenty Five Thousand
Dollars ($225,000) per annum (the "Base Salary") which Base Salary
will be reviewed periodically and may be increased by the Company
from time to time. The Base Salary shall be paid in accordance with
the Company's standard payroll practices in effect from time to
time, and shall be subject to such deductions and withholdings as
are required by law or by policies
<PAGE> 3
of the Company.
(ii) Reimbursement for all reasonable business
expenses (including a $600.00 per month car allowance) incurred by
Employee in connection with the Business of the Company subject to
compliance with the expense reimbursement policies established by the
Company and in sufficient detail to comply with Internal Revenue
Service Regulations.
(b) Employee shall be eligible to be considered for an annual
cash performance bonus, which may consist of an amount of up to sixty percent
(60%) of the Base Salary in the applicable year based on the attainment of
performance objectives established by the Board of Directors of the Company and
the Parent in good faith and Employee's contributions to the attainment of those
objectives, and shall be in such amount and payable in such manner and on such
terms as are determined by the Board of Directors of the Company and the Parent.
Nothing contained in this subsection (b) shall obligate the Company to pay a
bonus to Employee, unless the Board of Directors of the Company and the Parent
determines to award such a bonus to Employee.
(c) Employee shall have the right to participate in (i) any
insurance plans maintained by the Company from time to time to the extent that
Employee's position, tenure, salary, age, health and other qualifications make
him eligible to participate, and (ii) such other fringe benefit plans or
programs as are provided to the other senior management employees of the
Company, provided that the Company shall not be required to adopt or continue
any insurance plans or fringe benefit plans or programs.
(d) Employee shall receive options to purchase 100,000 shares
of Common Stock of the Parent pursuant to the terms of a Non-Qualified Stock
Option Agreement ("Option Agreement"). Such options will have a term of ten
years and will vest in one-fifth increments over five years from the date of
grant. The exercise prices of such options shall be $13.00 per share and the
date of grant shall be the Effective Date.
(e) The remuneration and benefits set forth in this Section 3
shall be the only compensation payable to Employee with respect to his
employment hereunder, and Employee shall not be entitled to receive any
compensation in addition to that set forth in this Section 3 for any
<PAGE> 4
services rendered by him in any capacity to the Company or any affiliated
corporation unless agreed to in writing by the Company or such affiliated
corporation.
4. Term and Termination of this Agreement. The term of employment of
Employee pursuant to this Agreement shall commence on the Effective Date and
shall continue for a term of three (3) years, or until sooner terminated as
provided herein.
(a) Employee's employment hereunder may be terminated:
(i) By the Company, upon the death or Disability of
Employee;
(ii) By the Company, immediately for Cause;
(iii) By Employee upon ninety (90) days prior written
notice to the Company;
(iv) By mutual agreement between Employee and the
Company; and
(v) By the Company, without Cause.
(b) In the event the Company terminates the employment of the
Employee without Cause, then, during the twelve (12) month period immediately
following the effective date of the termination of his employment, the Employee
shall continue to receive his base salary under this Agreement as in effect on
the date that his employment terminates subject to employee signing a Settlement
and Release Agreement agreeable to the Company. The payments described in this
Section 4(b) are hereinafter referred to as "Severance Pay," and shall be made
to the Employee without any obligation on his part to render services hereunder
after the effective date of the termination of Employee's employment, in full
settlement of all of the obligations of the Company hereunder. No Severance Pay
shall be paid to the estate or personal representative of the Employee in the
event of his death during the term of this Agreement.
(c) Except as set forth above, upon termination of Employee's
employment hereunder pursuant to this Section 4, the Company shall have no
further obligation to Employee or his personal representative with respect to
remuneration due under this Agreement, except for Base Salary earned but unpaid
at date of termination; provided however, Employee's covenants in Sections 5 and
6 of this Agreement shall survive the termination of Employee's employment
hereunder. If Employee fails to observe the requirements of Sections 5 or 6
hereof, then the Company shall have no obligation to pay any portion of the Base
Salary remaining unpaid to Employee and the Company shall have no obligation to
pay any portion of the Severance Pay. It is understood that Employee's coverage
under the Company's disability, accidental death or dismemberment and group life
insurance plans shall cease as of the date of termination.
<PAGE> 5
5. Ownership, Non-Disclosure, and Non-Use of Trade Secrets.
(a) The following terms used in this Section 5 shall have the
definitions set forth below:
(i) "Excluded Information" means any data or
information that is a Trade Secret hereunder (1) that has been
voluntarily disclosed to the public by the Company or has become
generally known to the public (except where such public disclosure has
been made by or through the Employee or by a third person or entity
with the knowledge of the Employee without authorization by the
Company); (2) that has been independently developed and disclosed by
parties other than the Employee or the Company to the Employee or to
the public generally without a breach of any obligation of
confidentiality by any such person running directly or indirectly to
the Company; or (3) that otherwise enters the public domain through
lawful means.
(ii) "Trade Secrets" means information which derives
economic value, actual or potential, from not being generally known and
not being readily ascertainable to other persons who can obtain
economic value from its disclosure or use and which is the subject of
efforts that are reasonable under the circumstances to maintain its
secrecy or confidentiality. Trade Secrets may include either technical
or non-technical data, including without limitation, (1) any useful
process, machine, chemical formula, composition of matter, or other
device which (A) is new or which Employee has a reasonable basis to
believe may be new, (B) is being used or studied by the Company and is
not described in a printed patent or in any literature already
published and distributed externally by the Company, and (C) is not
readily ascertainable from inspection of a product of the Company; (2)
any engineering, technical, or product specifications including those
of features used in any current product of the Company or to be used,
or the use of which is contemplated, in a future product of the
Company; (3) any application, operating system, communication system,
or other computer software (whether in source or object code) and all
flow charts, algorithms, coding sheets, routines, subroutines,
compilers, assemblers, design concepts, test data, documentation, or
manuals related thereto, whether or not copyrighted, patented or
patentable, related to or used in the Business of the Company; or (4)
information concerning the customers, suppliers, products, pricing
strategies of the Company, personnel assignments and policies of the
Company, or matters concerning the financial affairs and management of
the Company or any parent, subsidiary, or affiliate of the Company;
provided however, that Trade Secrets shall not include any Excluded
Information.
(b) Employee acknowledges and agrees that all Trade Secrets,
and all physical embodiments thereof, are confidential to and shall be and
remain the sole and exclusive property of the Company and that any Trade Secrets
produced by the Employee during the period of Employee's employment by the
Company shall be considered "work for hire" as such term is defined in 17 U.S.C.
Section 101, the ownership and copyright of which shall be vested solely in the
Company. Employee agrees (i) immediately to disclose to the Company all Trade
Secrets developed in whole or part by Employee during the term of Employee's
employment by the Company, and (ii) at the request and expense of the Company,
to do all things and sign all documents or instruments reasonably necessary in
the opinion of the Company to eliminate any ambiguity as to the rights of the
Company in such Trade Secrets including, without limitation, providing to the
Company Employee's full cooperation in any litigation or other proceeding to
establish, protect, or obtain such rights. Upon request by the Company, and in
any event upon termination of Employee's employment by the Company for any
reason, Employee shall promptly deliver to the Company all property belonging to
the Company including, without limitation, all
<PAGE> 6
Trade Secrets (and all embodiments thereof) then in Employee's custody, control,
or possession.
(c) Employee agrees that all Trade Secrets of the Company
received or developed by Employee as a result of Employee's employment with the
Company will be held in trust and strictest confidence, that Employee will
protect such Trade Secrets from disclosure, and that Employee will make no use
of such Trade Secrets, except in connection with Employee's employment
hereunder, without the Company's prior written consent. The obligations of
confidentiality contained in this Agreement shall apply during Employee's
employment by the Company and (i) with respect to all Trade Secrets consisting
of scientific or technical data, at any and all times after expiration or
termination (for whatever reason) of such employment; and (ii) with respect to
all other Trade Secrets, for a period of two (2) years after such expiration or
termination, unless a longer period of protection is provided by law.
6. Noncompete; Nonsolicitation Covenants.
(a) The following terms used in this Section 6 shall have the
definitions set forth below:
(i) "Affiliate" means any person or entity directly
or indirectly controlling, controlled by, or under common control with
Employee. As used herein, the word "control" means the power to direct
the management and affairs of a person.
(ii) "Area" means the United States of America and
Canada.
(iii) "Competing Enterprise" means any person or any
business organization of whatever form, engaged directly within the
Area in the Business of the Company.
(b) Employee covenants that Employee shall, during the term of
this Agreement, and for a period of nine (9) months following termination for
any reason of Employee's employment by the Company, observe the following
separate and independent covenants:
(i) Neither Employee nor any Affiliate will, without
the prior written consent of the Company, within the Area, either
directly or indirectly, (A) become financially interested in a
Competing Enterprise (other than as a holder of less than five percent
of the outstanding voting securities of any entity whose voting
securities are listed on a national securities exchange or quoted by
the National Association of Securities Dealers, Inc. automated
quotation system), or, (B) engage in or be employed by any
<PAGE> 7
Competing Enterprise as a consultant, officer, director, or Employee or
managerial employee.
(ii) Neither Employee nor any Affiliate will,
without the prior written consent of the Company, either directly or
indirectly, on Employee's own behalf or in the service or on behalf of
others, solicit, divert, or appropriate, or attempt to solicit, divert,
or appropriate, to any Competing Enterprise within the Area, any person
or entity whose account with the Company was serviced by or under
Employee's direction or supervision during the term of this Agreement.
(iii) Neither Employee nor any Affiliate will,
without the Company's prior written consent, either directly or
indirectly, on Employee's own behalf or in the service or on behalf of
others, solicit, divert, or hire away, or attempt to solicit, divert,
or hire away, to any Competing Enterprise, any person employed by the
Company, whether or not such employee is a full-time or a temporary
employee of the Company and whether or not such employment is pursuant
to written agreement and whether or not such employment is at will.
7. Remedies. Employee acknowledges and agrees that the Company is
engaged in the Business of the Company in and throughout the Area, and that by
virtue of the training, duties, and responsibilities attendant with Employee's
employment by the Company and the special knowledge of the business and
operations of the Company that Employee will have as a consequence of Employee's
employment by the Company, great loss and irreparable damage would be suffered
by the Company if the Employee should breach or violate any of the terms or
provisions of the covenants and agreements set forth herein. Employee further
acknowledges and agrees that each such covenant and agreement is reasonably
necessary to protect and preserve the interest of the Company. Therefore, in
addition to all the remedies provided at law or in equity, Employee agrees and
consents that the Company shall be entitled to a temporary restraining order and
a permanent injunction to prevent a breach of any of the covenants or agreements
of Employee contained herein and to collect from Employee reasonable attorney's
fees incurred by the Company in the enforcement hereof. The existence of any
claim, demand, action or cause of action of Employee against the Company shall
not constitute a defense to the enforcement by the Company of any of the
covenants or agreements herein whether predicated upon this Agreement or
otherwise, and shall not constitute a defense to the enforcement by the Company
of any of its rights hereunder.
8. General Provisions.
(a) In the event that any one or more of the provisions, or
parts of any provisions, contained in the Agreement shall for any reason be held
to be invalid, illegal, or unenforceable in any respect by a court of competent
jurisdiction, the same shall not invalidate or otherwise affect any other
provision hereof, and this Agreement shall be construed as if such invalid,
illegal, or unenforceable provision had never been contained herein.
Specifically, but without limiting the foregoing in any way, each of the
covenants of the parties to this Agreement contained herein shall be deemed and
shall be construed as a separate and independent covenant and should any part or
provision of any of such covenants be held or declared invalid by any court of
competent
<PAGE> 8
jurisdiction, such invalidity shall in no way render invalid or unenforceable
any other part or provision thereof or any other covenant of the parties not
held or declared invalid.
(b) This Agreement and the rights and obligations of the
Company hereunder may be assigned by the Company to any subsidiary of or
successor to the Company, and shall inure to the benefit of, shall be binding
upon, and shall be enforceable by any such assignee, provided that any such
assignee shall agree to assume and be bound by this Agreement. This Agreement
and the rights and obligations of Employee hereunder may not be assigned by
Employee.
(c) The waiver by the Company of any breach of this Agreement
by Employee shall not be effective unless in writing, and no such waiver shall
operate or be construed as a waiver of the same or another breach on a
subsequent occasion.
(d) This Agreement and the rights of the parties hereunder
shall be governed by and construed in accordance with the laws of the State of
Texas.
(e) This Agreement embodies the entire agreement of the
parties relating to the employment of Employee by the Company. No amendment,
modification extension or renewal of this Agreement shall be valid or binding
upon the Company or Employee unless made in writing and signed by the parties.
All prior understandings and agreements relating to the employment of Employee
by the Company are hereby expressly terminated.
(f) Any notice, request, demand, or other communication
required to be given hereunder shall be made in writing and shall be deemed to
have been fully given if personally delivered or if mailed by overnight delivery
(the date on which such notice, request, demand, or other communication is
received shall be the date of delivery) to the parties at the following
addresses (or at such other addresses as shall be given in writing by any party
to the other party hereto):
If to Employee:
Garold E. Swan
9641 Viewside Drive
Dallas, Texas 75231
If to Company:
Wm. Cameron & Co. dba Cameron Ashley Building
Products
11651 Plano Road, Suite 100
Dallas, Texas 75243
Attention: Ronald Ross, Chairman and Chief
Executive Officer
Telecopy: (214) 860-5148
(g) This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, and it shall not
be necessary for the same counterpart of this agreement to be signed by all of
the undersigned in order for the agreements set forth herein
<PAGE> 9
to be binding upon all of the undersigned in accordance with the terms hereof.
IN WITNESS WHEREOF, the Company and Employee have each executed and
delivered this Agreement as of the date first above written.
COMPANY:
WM. CAMERON & CO. dba Cameron Ashley
Building Products
By:
-------------------------------------
Ronald R. Ross
Chairman and CEO
EMPLOYEE:
----------------------------------------
Garold E. Swan
<PAGE> 1
EXHIBIT 11
CAMERON ASHLEY BUILDING PRODUCTS, INC.
COMPUTATION OF EARNINGS PER SHARE
(THOUSANDS)
<TABLE>
<CAPTION>
Three Months Ended
-----------------------------------------------------------------------------------------
April 30, 1999 April 30, 1998
-------------------------------------------- ------------------------------------------
Income Shares Per-Share Income Shares Per-Share
(Numerator) (Denominator) Amount (Numerator) (Denominator) Amount
------------ ------------- ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C> <C>
BASIC EPS
Income available to common
stockholders $ 3,477 8,654 $ 0.40 $ 2,748 9,350 $ 0.29
============ ============
EFFECT OF DILUTIVE SECURITIES
Average options outstanding 1,831 1,366
Effects of treasury stock method
(based on exercise proceeds and
tax benefits) (1,684) (1,079)
------------ ------------ ------------ ------------
DILUTED EPS
Income available to common
stockholders assuming dilution $ 3,477 8,801 $ 0.40 $ 2,748 9,637 $ 0.29
============ ============ ============ ============ ============ ============
</TABLE>
<TABLE>
<CAPTION>
Six Months Ended
-----------------------------------------------------------------------------------------
April 30, 1999 April 30, 1998
-------------------------------------------- ------------------------------------------
Income Shares Per-Share Income Shares Per-Share
(Numerator) (Denominator) Amount (Numerator) (Denominator) Amount
------------ ------------- ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C> <C>
BASIC EPS
Income available to common
stockholders $ 3,434 8,650 $ 0.40 $ 3,388 9,336 $ 0.36
============ ============
EFFECT OF DILUTIVE SECURITIES
Average options outstanding 1,831 1,311
Effects of treasury stock method
(based on exercise proceeds and
tax benefits) (1,679) (1,039)
------------ ------------ ------------ ------------
DILUTED EPS
Income available to common
stockholders assuming dilution $ 3,434 8,802 $ 0.39 $ 3,388 9,608 $ 0.35
============ ============ ============ ============ ============ ============
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> OCT-31-1999
<PERIOD-START> NOV-01-1998
<PERIOD-END> APR-30-1999
<CASH> 4,363
<SECURITIES> 0
<RECEIVABLES> 162,672
<ALLOWANCES> 4,721
<INVENTORY> 128,750
<CURRENT-ASSETS> 297,752
<PP&E> 85,194
<DEPRECIATION> 28,948
<TOTAL-ASSETS> 419,728
<CURRENT-LIABILITIES> 126,834
<BONDS> 0
0
0
<COMMON> 64,566
<OTHER-SE> 55,239
<TOTAL-LIABILITY-AND-EQUITY> 419,728
<SALES> 492,133
<TOTAL-REVENUES> 492,133
<CGS> 393,412
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 5,394
<INCOME-PRETAX> 5,778
<INCOME-TAX> 2,344
<INCOME-CONTINUING> 3,434
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 3,434
<EPS-BASIC> .40
<EPS-DILUTED> .39
</TABLE>
