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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
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ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
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For the fiscal year ended: Commission file number:
DECEMBER 31, 1999 1-12733
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TOWER AUTOMOTIVE, INC.
(Exact name of Registrant as specified in its charter)
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DELAWARE 41-1746238
(State of Incorporation) (I.R.S. Employer Identification No.)
4508 IDS CENTER 55402
MINNEAPOLIS, MINNESOTA (Zip Code)
(Address of Principal Executive Offices)
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Registrant's Telephone Number, Including Area Code: (612) 342-2310
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Securities Registered Pursuant to Section 12(b) of the Act: NONE
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, par value $.01 per share
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Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934, during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of Registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [X]
As of March 24, 2000, 46,964,508 shares of Common Stock of the Registrant
were outstanding and the aggregate market value of the Common Stock of the
Registrant (based upon the last reported sale price of the Common Stock at that
date by the New York Stock Exchange), excluding shares owned beneficially by
affiliates, was approximately $690,182,000.
Information required by Items 10, 11, 12 and 13 of Part III of this Annual
Report on Form 10-K incorporates by reference information (to the extent
specific sections are referred to herein) from the Registrant's Proxy Statement
for its annual meeting to be held May 18, 2000 (the "2000 Proxy Statement").
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TOWER AUTOMOTIVE, INC.
ANNUAL REPORT ON FORM 10-K
TABLE OF CONTENTS
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PAGE
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PART I
Item 1. Business.................................................... 3
Item 2. Properties.................................................. 12
Item 3. Legal Proceedings........................................... 13
Item 4. Submission of Matters to a Vote of Security Holders......... 14
PART II
Item 5. Market for Registrant's Common Equity and Related
Stockholder Matters......................................... 14
Item 6. Selected Financial Data..................................... 15
Item 7. Management's Discussion and Analysis of Results of
Operations and Financial Condition.......................... 15
Item 7A. Quantitative and Qualitative Disclosure about Market Risk... 22
Item 8. Financial Statements and Supplementary Data................. 22
Item 9. Changes in and Disagreements with Accountants on Accounting
and Financial Disclosure.................................... 23
PART III
Item 10. Directors and Executive Officers of the Registrant.......... 23
Item 11. Executive Compensation...................................... 25
Item 12. Security Ownership of Certain Beneficial Owners and
Management.................................................. 25
Item 13. Certain Relationships and Related Transactions.............. 25
PART IV
Item 14. Exhibits, Financial Statement Schedules, and Reports on Form
8-K......................................................... 25
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PART I
ITEM 1. BUSINESS
(a) GENERAL DEVELOPMENT OF BUSINESS
Background of Company
Tower Automotive, Inc. and its subsidiaries (collectively referred to as
the "Company" or "Tower Automotive") is a leading designer and producer of
structural components and assemblies used by the major automotive original
equipment manufacturers ("OEMs"), including Ford, DaimlerChrysler, General
Motors, Saturn, Honda, Toyota, Nissan, Auto Alliance, Fiat, BMW, Volkswagen and
Mercedes. The Company's current products include large structural stampings and
assemblies, such as body pillars, full frame assemblies, chassis, suspension and
floor pan components, engineered assemblies, such as brake components and
exposed sheet metal components, such as body sides, pick-up box sides and
fenders. The Company believes it is the largest independent supplier of
structural components and assemblies to the automotive market (based on net
revenues).
Since its inception in April 1993, the Company's revenues have grown
rapidly through a focused strategy of internal growth and a highly disciplined
acquisition program. During the last five years, the Company has successfully
completed eight acquisitions and established joint ventures in Mexico, Brazil
and Korea. As a result of such acquisitions and internal growth, the Company's
revenues have increased from approximately $86 million in 1993 to approximately
$2.2 billion in 1999, representing a compound annual growth rate of
approximately 71%. The Company's North American content per vehicle has
increased from $6.23 in 1993 to $123.13 in 1999.
The Company operates in the large and highly fragmented structural segment
of the automotive supply industry, which has continued to undergo significant
consolidation. In order to lower costs and improve quality, OEMs are reducing
their supplier base by awarding sole-source contracts to full-service suppliers
who are able to supply larger portions of a vehicle on a global basis. OEMs'
criteria for supplier selection include not only cost, quality and
responsiveness, but also full-service design, engineering and program management
capabilities. OEMs are increasingly seeking suppliers capable of providing
complete systems or modules rather than suppliers who only provide separate
component parts. In addition, OEMs are increasingly requiring their suppliers to
have the capability to design and manufacture their products in multiple
geographic markets. As a full-service supplier with strong OEM relationships,
the Company expects to continue to benefit from these trends within the
structural segment of the automotive supply industry.
The Company was formed to acquire R.J. Tower Corporation (the "Predecessor"
or "R.J. Tower"), the acquisition of which was completed in April 1993 for an
aggregate cost of approximately $26 million. Since April 1993, the Company has
successfully completed eight strategic acquisitions and established three joint
ventures.
Seojin. In October 1999, the Company invested $21 million for new shares
representing a 49% equity interest in Seojin Industrial Company Limited
("Seojin"). Seojin is a supplier of frames, modules and structural components to
the Korean automotive industry. Total consideration for the equity interest was
financed under the Company's revolving credit facility. In addition, the Company
advanced $19 million to Seojin in exchange for variable rate convertible bonds
(the "Bonds") due October 30, 2009. The Bonds are unsecured and rank equally
with all other present and future obligations of Seojin. Interest on the Bonds
is payable annually beginning October 30, 2000 and each October 30 thereafter
until maturity. The Company has the right to convert the Bonds into common stock
of Seojin any time on or after October 30, 2000. The conversion rate is based
upon a predetermined formula that would increase the Company's equity interest
to approximately 66%.
Active. In July 1999, the Company acquired all of the outstanding stock of
Active Tool Corporation and Active Products Corporation (collectively, "Active")
for total approximate consideration of $315 million. Active, which has five
facilities, designs and produces a variety of large unexposed structural
stampings, exposed surface panels, and modules to the North American automotive
industry. Active's main customers
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include DaimlerChrysler, Ford, General Motors, and Saturn. Products offered by
Active include body sides, pick-up box sides, fenders, floor pan assemblies,
door panels, pillars, and heat shields. The acquisition of Active enhances the
Company's ability to manufacture large and complex structures, as well as
exposed surface panels. The acquisition was financed under the Company's
revolving credit facility.
IMAR and OSLAMT. In July 1998, the Company acquired IMAR s.r.l. ("IMAR")
and OSLAMT S.p.A. ("OSLAMT"). IMAR designs and manufactures structural parts and
assemblies from two facilities in Italy, primarily for Fiat. OSLAMT designs and
manufactures tools and assemblies for the automotive market from its facility in
Turin, Italy. The purchase price consisted of approximately $32.5 million cash
plus the assumption of approximately $17 million of indebtedness with an
additional amount of up to $15 million payable if IMAR achieves certain
operating targets.
Caterina. In March 1998, the Company acquired a 40 % equity interest in
Metalurgica Caterina S.A. ("Caterina"), a supplier of structural stampings and
assemblies to the Brazilian automotive market. This investment (i) provided the
Company with a substantial manufacturing presence in one of the fastest growing
automotive markets in the world and (ii) added Volkswagen and Mercedes as new
customers. The Company has the right to acquire the remaining 60% of the equity
of Caterina for $66.0 million. This right continues until 90 days after December
31, 1999, at which time, Caterina may exercise a call option to repurchase Tower
Automotive's 40% equity investment for $26.4 million. The call option remains in
effect until March 31, 2001. The Company paid approximately $48 million for its
initial equity interest.
Metalsa. In October 1997, the Company acquired a 40% equity interest in
Metalsa S. de R.L. ("Metalsa"). In addition, the Company has entered into a
technology sharing arrangement which will allow it to utilize the latest
available product and process technology. Metalsa is the largest supplier of
vehicle frames and structures in Mexico. The Company paid approximately $120
million for its equity interest with an additional amount of up to $45 million
payable based upon Metalsa's future net earnings.
SIMES. In May 1997, the Company acquired Societa Industria Meccanica e
Stampaggio S.p.A. ("SIMES"), an Italian automotive parts manufacturer, for
approximately $50.7 million in cash, plus up to an additional $3.0 million if
SIMES achieves certain operating targets following the acquisition. The
acquisition of SIMES (i) significantly expanded the Company's global
capabilities by providing the Company with a manufacturing presence in Europe,
(ii) added Fiat as a new customer and (iii) enhanced the Company's design and
engineering capabilities. SIMES generated revenues of approximately $70.0
million during its last fiscal year, with Fiat representing substantially all of
such revenues.
APC. In April 1997, the Company acquired Automotive Products Company
("APC") from A.O. Smith Corporation for approximately $700 million in cash. APC
is a leading designer and producer of structural and suspension components for
the automotive, light truck and heavy truck markets. The Company believes that
the acquisition of APC provided it with several strategic benefits, including:
(i) expanded product offerings and modular product opportunities; (ii) increased
customer penetration within each of the three major North American OEMs and
within certain foreign OEMs with manufacturing operations in North America
("Transplants"); (iii) increased penetration in the light truck segment and
other key models; (iv) complementary new technology; (v) opportunities to reduce
costs and improve operational efficiency; and (vi) an expanded presence in
China, Japan and South America, which complemented the Company's current
European initiatives to provide expanded global production capabilities for both
North American and international OEMs. APC had revenues of $863.0 million in
1996.
MSTI. In May 1996, the Company acquired MascoTech Stamping Technologies,
Inc. ("MSTI") from MascoTech, Inc. ("MascoTech") for approximately $79 million,
plus additional earn-out payments if certain operating targets are achieved by
the MSTI facilities in the first three years following the acquisition. The MSTI
acquisition: (i) expanded the Company's product capabilities into chassis and
suspension components; (ii) provided chassis and suspension technology as well
as value-added processing technologies including assembling, painting and
welding; and (iii) increased the Company's content per vehicle on key light
truck and sport utility vehicles such as the Ford F-Series, Explorer and
Windstar and the DaimlerChrysler Ram and Dakota as well as on high volume
passenger cars such as the Ford Taurus/Sable. MSTI had revenues of $152.9
million in 1995.
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Trylon. In January 1996, the Company acquired Trylon Corporation ("Trylon")
from MascoTech for approximately $25 million in cash. The acquisition of Trylon:
(i) broadened the Company's product offerings to include small, precision metal
stampings and assemblies, which were previously outsourced to third parties;
(ii) established a relationship between the Company and General Motors; and
(iii) increased content on Ford models, primarily the Villager. Trylon generated
$47.9 million in revenues in 1995.
Kalamazoo. In June 1994, the Company acquired Kalamazoo Stamping and Die
Company ("Kalamazoo"), a supplier of structural stampings and assemblies, for
approximately $12 million in cash. The acquisition of Kalamazoo added additional
structural components to the Company's product offerings and increased model
penetration with Ford.
Edgewood. In May 1994, the Company acquired Edgewood Tool and Manufacturing
Company and its affiliate, Ann Arbor Assembly Corporation (collectively,
"Edgewood") for approximately $30 million in aggregate consideration. Edgewood
is a leading supplier of hood and deck lid hinges as well as structural
stampings and assemblies. The acquisition of Edgewood: (i) added engineered
mechanical stampings, primarily hood and deck lid hinges, and additional
structural components to the Company's product offerings; (ii) increased model
penetration with the Company's existing customers; and (iii) provided the
Company with a significant new customer, Mazda.
Dr. Meleghy. During the first quarter of 2000, the Company acquired all of
the outstanding shares of Dr. Meleghy GmbH & Co. KG Werkzeugbau und Presswerk,
Bergisch Gladbach ("Dr. Meleghy") for approximately $86.4 million. Dr. Meleghy
designs and produces structural stampings, exposed surface panels and modules to
the European automotive industry. Dr. Meleghy also designs and manufactures
tools and dies for use in their production and for the external market. Dr.
Meleghy operates three facilities in Germany and one facility in both Hungary
and Poland. Dr. Meleghy's main customers include DaimlerChrysler, Audi,
Volkswagen, Ford, Opel, and BMW. Products offered by Dr. Meleghy include body
side panels, floor pan assemblies, and miscellaneous structural stampings. The
Company may pay an additional $38 million if certain operating targets are met.
The acquisition was financed under the Company's revolving credit facility.
J.L. French. In October 1999, the Company loaned $30.0 million to J. L.
French Automotive Castings, Inc., ("J.L. French") in exchange for a convertible
subordinated promissory note due October 14, 2009. The note bears interest at
7.5% annually with interest payable on the last day of each calendar quarter
beginning December 31, 1999. The Company can convert, at its option, any portion
of the outstanding principal of the note into Class A Common Stock of J.L.
French at a preset agreed upon conversion price.
Hinge Business. In August 1998, the Company sold its hinge business to Dura
Automotive Systems, Inc. for net proceeds of approximately $36.9 million which
approximated the book value of the net assets sold. The net proceeds were used
to repay outstanding indebtedness under the revolving credit facility.
The Company completed an initial public offering (the "IPO") of its Common
Stock in August 1994, the sale of an additional 4,465,800 shares in June 1996
and an additional 17,000,000 shares in April 1997. The Company's principal
executive offices are located at 4508 IDS Center, Minneapolis, Minnesota 55402,
and its telephone number is (612) 342-2310.
Business Strategy
The Company's business objective is to capitalize upon the consolidation,
globalization and system/modular sourcing trends in the automotive supply
industry in order to be the leading provider of structural and suspension
components to OEMs on a worldwide basis. Key elements of the Company's operating
and growth strategies are outlined below:
OPERATING STRATEGY:
Full-Service Technical Design, Engineering and Program Management
Capabilities. The Company strives to maintain a competitive advantage through
investment in research and product development, advanced engineering and program
management. The Company works with OEMs throughout the product development
process from concept vehicle and prototype development through the design and
implementation
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of manufacturing processes to provide full-service capabilities to its
customers. In some cases, the Company places design engineers at customer
facilities to coordinate its product design efforts with those of its OEM
customers. During 1999, the Company added a technical and customer service
center in Hyderabad, India to enable around-the-clock product development across
several time zones.
Efficient Manufacturing/Continuous Improvement Programs. In response to
OEMs' increasingly stringent demands, the Company has implemented manufacturing
practices designed to maximize product quality and timeliness of delivery and
eliminate waste and inefficiency. The Company has continued to upgrade its
manufacturing equipment and processes through substantial investment in new
equipment, maintenance of existing equipment and utilization of manufacturing
engineering personnel.
Global Presence. The Company strives to offer manufacturing and support
services to its customers on a global basis through a combination of
international wholly owned facilities and by entering into joint ventures and
partnerships with foreign suppliers. Since 1993, in furtherance of its global
expansion strategy, the Company has opened a European sales and engineering
office to service U.K. and German OEM customers and has established an
industrial partnership with The Kirchhoff Group ("Kirchhoff") in Germany. The
Company also has technical/customer service centers in Yokohama, Japan, Turin,
Italy, Hyderabad, India, and with the acquisition of Dr. Meleghy,
Bergisch-Gladbach, Germany. The Company also has relocated certain technical
personnel resources to locations where OEMs are developing "world cars."
Decentralized, Participative Culture. The Company's decentralized approach
to managing its manufacturing facilities encourages decision making and employee
participation in areas such as manufacturing processes and customer service. The
Company's leadership team meets frequently at various Company locations in order
to maintain a unified Company culture. To increase employee productivity, the
Company utilizes incentive programs for all salaried and hourly employees and
provides incentives for employees who take advantage of its continuous
improvement programs and who provide cost savings ideas.
GROWTH STRATEGY:
Strategic Acquisitions. The Company continues to believe that consolidation
in the automotive supply industry will provide further attractive opportunities
to acquire high-quality companies that complement its existing business. The
Company seeks to make acquisitions that (i) provide additional product,
manufacturing and technical capabilities; (ii) broaden the Company's geographic
coverage domestically and strengthen its ability to supply products on a global
basis; (iii) increase the number of models for which the Company supplies
products and the content supplied for existing models; and (iv) add new
customers. The Company intends to seek future acquisitions or develop strategic
alliances that will strengthen the Company's ability to supply its products on a
global basis.
Modular Product Opportunities. The Company has capitalized on the
system/modular sourcing trend among OEMs by offering customers higher
value-added supply capabilities through an increasing focus on the production of
assemblies consisting of multiple component parts that are welded or otherwise
fastened together by the Company. The Company has the ability to supply OEMs
with modules consisting of integrated assemblies and component parts that can be
installed as a unit in a vehicle at the OEM assembly plant.
Increase Vehicle Penetration. The Company has developed strong
relationships with certain OEM engineering and purchasing personnel which allow
it to identify business opportunities and to react to customer needs in the
early stages of vehicle design. The Company believes that these relationships
give it a competitive advantage over smaller and less capable suppliers in
marketing its broad range of products and in developing new product concepts,
such as expanded use of modules, that complement its existing product lines.
Pursuit of "World Car" Opportunities. The Company has been working closely
with certain customers on the development of "world cars," which are designed by
OEMs in one vehicle center to a single global standard but produced and sold in
different geographic markets. Suppliers for a specific "world car" are often
required to provide their products on a worldwide basis. The Company believes
that it has a competitive
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advantage in potentially supplying certain world cars given its international
presence, full-service capabilities and existing position as a leading supplier
on the Ford Focus and DEW98 luxury car, as well as on other existing vehicle
platforms which may eventually evolve into world cars.
Industry Trends
The Company's performance and growth is directly related to certain trends
within the automotive market, including the consolidation of the component
supply industry, the increase in global sourcing and the growth of
system/modular sourcing.
Supplier Consolidation. The automotive supply industry has been undergoing
significant consolidation. In order to lower costs and improve quality, OEMs are
reducing their supplier base by awarding sole-source contracts to full-service
suppliers who are able to supply larger segments of a vehicle. OEMs' criteria
for supplier selection include not only cost, quality and responsiveness, but
also full-service design, engineering and program management capabilities. For
full-service suppliers such as the Company, this environment provides an
opportunity to grow by obtaining business previously provided by other non-full
service suppliers and by acquiring suppliers that further enhance product,
manufacturing and service capabilities. OEMs rigorously evaluate suppliers on
the basis of product quality, cost control, reliability of delivery, product
design capability, financial strength, new technology implementation, quality
and condition of facilities and overall management. Suppliers that obtain
superior ratings are considered for sourcing new business. Although these new
supplier policies have already resulted in significant consolidation of
component suppliers in certain segments, the Company believes that consolidation
within the structural and suspension component segments of the automotive
industry will continue to provide attractive opportunities to acquire
high-quality companies that complement its existing business.
Global Sourcing. Regions such as Asia, Latin America, Mexico and Eastern
Europe are expected to experience significant growth in vehicle demand over the
next ten years. OEMs are positioning themselves to reach these emerging markets
in a cost-effective manner by seeking to design and produce "world cars" which
can be designed in one vehicle center to a single global standard but produced
and sold in different geographic markets, thereby allowing OEMs to reduce design
costs, take advantage of low-cost manufacturing locations and improve product
quality and consistency. OEMs increasingly are requiring their suppliers to have
the capability to design and manufacture their products in multiple geographic
markets.
System/Modular Sourcing. OEMs are increasingly seeking suppliers capable of
providing complete systems or modules rather than suppliers who only provide
separate component parts. A system is a group of component parts which operate
together to provide a specific engineering driven functionality whereas a module
is a group of systems and/or component parts which are assembled and shipped to
the OEM for installation in a vehicle as a unit. By outsourcing complete systems
or modules, OEMs are able to reduce their costs associated with the design and
integration of different components and improve quality by enabling their
suppliers to assemble and test major portions of the vehicle prior to beginning
production.
Products
The Company produces a broad range of stamped and welded assemblies for
vehicle body structures and suspension systems, many of which are critical to
the structural integrity of a vehicle. These products include body structural
assemblies such as pillars and package trays, control arms, suspension links,
engine cradles and full frame assemblies. These stampings and assemblies are
attached directly to the frame of an automobile at the OEM assembly plant and
comprise the major structure of a vehicle. The Company's products generally can
be classified into the following categories: structural components, suspension
components, engineered assemblies and exposed sheet metal components.
Structural Components. The Company's structural component products form the
basic upper body structure of the vehicle and include large metal stampings such
as body pillars, roof rails, side sills, parcel shelves and intrusion beams. The
Company expanded its product offerings to include structural component products
that form the basic lower body structure of the vehicle such as light truck
frames, automotive engine
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cradles and heavy truck frame rails. Critical to the strength and safety of
vehicles, structural products carry the load of the vehicle and provide crash
integrity.
Suspension Components. The Company's current suspension component products
include stamped, formed and welded products such as control arms, suspension
links, track bars, spring/shock towers, and trailing axles. Critical to the
ride, handling and noise characteristics of a vehicle, suspension components are
a natural extension of the Company's larger structural components.
Engineered Assemblies. The Company's current engineered assemblies include
a broad array of highly engineered parts such as brake components and fuel
filter assemblies. Such engineered assemblies are a natural extension to the
Company's other products in that they are attached to both structural and
suspension components.
Exposed Sheet Metal Components. The Company's current exposed sheet metal
components include body sides, pick-up box sides and fenders. The capability to
produce these types of components complements the Company's substantial presence
in upper body structures and allows for the combination of these offerings into
modules for supply to customers.
Other. In addition to the Company's structural, suspension, mechanical, and
exposed metal component products, the Company manufactures a variety of other
products, including heat shields and other precision stampings, for its OEM
customers.
Although a portion of the Company's products are manufactured and then sold
directly to OEMs as finished products, some are also manufactured to produce
assemblies consisting of multiple parts that are welded or otherwise fastened
together by the Company and then sold to the OEMs. Systems and assemblies
currently produced by the Company include front and rear structural suspension
systems comprised of control arms, suspension links and axle assemblies
consisting of stamped metal trailing axles, assembled brake shoes, hoses and tie
rods.
Customers and Marketing
The North American automotive market is dominated by General Motors, Ford
and DaimlerChrysler, with Transplants representing approximately 23% of this
market in 1999. The Company currently supplies its products primarily to Ford,
DaimlerChrysler, General Motors, Saturn, Honda, Toyota, Nissan, Auto Alliance,
Fiat, BMW and Volkswagen.
OEMs typically award contracts that cover parts to be supplied for a
particular car model. Such contracts range from one year to over the life of the
model, which is generally three to ten years and do not require the purchase by
the customer of any minimum number of parts. The Company also competes for new
business to supply parts for successor models and therefore is subject to the
risk that the OEM will not select the Company to produce parts on a successor
model. The Company supplies parts for a broad cross-section of both new and
mature models, thereby reducing its reliance on any particular model. For
example, the Company supplies parts for substantially all models produced by
Ford, Honda and DaimlerChrysler and also currently supplies DaimlerChrysler with
substantially all of its full frame requirements. The following table presents
an overview of the major models for which the Company supplies products:
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CUSTOMER CAR MODELS TRUCK MODELS
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Ford Taurus/Sable, Contour/Mystique, Explorer, Ranger, F-Series,
Mustang, Escort, Crown Victoria, Econoline, Villager, Windstar, Medium
Grand Marquis, Continental, Focus, Trucks, Expedition/Navigator,
LS/Jaguar S-Type, Cougar, Excursion
Thunderbird, Towncar
DaimlerChrysler Concorde/Intrepid, Neon, Viper, Ram Pick-up, Dakota, Grand Cherokee,
Avenger, Stratus/Cirrus/Breeze, 300m, Voyager, Caravan, Ram Van, Wrangler,
Sebring Durango
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CUSTOMER CAR MODELS TRUCK MODELS
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General Motors Cavalier, Sunfire, Grand Am, Lumina, C/K Pick-up, Silverado, Sierra,
Grand Prix Tahoe, Yukon, Astro, Safari
Saturn LS
Honda Accord, Civic, Acura Integra Odyssey
Mazda 626, MX6
Toyota Avalon, Camry, Solara Sienna, Tacoma, Tundra
Nissan Sentra, Altima Quest, Xterra, Frontier
Isuzu Rodeo, Amigo
Fiat Marea, Punto, Bravo
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Most of the parts the Company produces have a lead time of two to five
years from product development to production. See "Design and Engineering
Support." The selling prices of these products are generally negotiated between
the Company and its customers and are typically not subject to a competitive bid
process.
Sales of the Company's products to OEMs are made directly by the Company's
sales and engineering forces, located at its technical/customer service centers
in Novi, Michigan, Milwaukee, Wisconsin, Yokohama, Japan, Turin, Italy, and
Hyderabad, India. Through its technical centers, the Company services its OEM
customers and manages its continuing programs of product design improvement and
development. The Company periodically places engineering staff at various
customer facilities to facilitate the development of new programs.
Design and Engineering Support
The Company strives to maintain a technological advantage through
investment in product development and advanced engineering capabilities. The
Company's manufacturing engineering capabilities enable it to design and build
high-quality and efficient manufacturing systems, processes and equipment and to
continually improve its production processes and equipment. The Company's
manufacturing engineers are located at each of its manufacturing facilities. The
Company's engineering staff currently consists of approximately 350 full-time
engineers, whose responsibilities range from research and development, advanced
product development, product design, testing and initial prototype development
to the design and implementation of manufacturing processes.
Because assembled parts must be designed at an early stage in the
development of new vehicles or model revisions, the Company is increasingly
given the opportunity to utilize its product engineering resources early in the
planning process. Advanced development engineering resources create original
engineering designs, computer-aided designs, feasibility studies, working
prototypes and testing programs to meet customer specifications. The Company
also has full-service design capability for chassis components.
Global Initiatives
The Company has formed, or is in the process of forming, strategic
alliances with other suppliers throughout the world, including those located in
Europe, Asia and Latin America. The Company has opened a European sales and
engineering office to service its U.K. and German OEM customers. As part of its
acquisition of APC, the Company acquired a 60% equity interest in a joint
venture, Tower Golden Ring, that manufactures structural components in China. In
addition to the Company's equity interests in Tower Golden Ring, Metalsa,
Caterina and Seojin, the Company has a joint manufacturing and marketing
agreement with Kirchhoff, a German automobile parts supplier, pursuant to which
the Company and Kirchhoff have agreed to provide manufacturing and marketing
services to each other when and as required by each company's OEM customers. A
current focus of the Company's acquisition strategy is to continue to acquire
foreign suppliers, such as Dr. Meleghy, that would provide the Company with a
manufacturing presence in new geographic areas and afford the Company access to
new customer opportunities.
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Manufacturing
The Company's manufacturing operations consist primarily of stamping
operations, system and modular assembly operations, roll-forming and
hydroforming operations and associated coating and other ancillary operations.
Stamping involves passing metal through dies in a stamping press to form
the metal into three-dimensional parts. The Company produces stamped parts using
over 640 precision single-stage, progressive and transfer presses, ranging in
size from 150 to 4,000 tons, which perform multiple functions as raw material
proceeds through the press and is converted into a finished product. The Company
continually invests in its press technology to increase flexibility, improve
safety and minimize die changeover time.
After forming is completed, stampings that are to be used in assemblies are
placed in work-in-progress staging areas from which they are fed into
cell-oriented assembly operations that produce complex, value-added assemblies
through the combination of multiple parts that are welded or fastened together.
The Company's assembly operations are performed on either dedicated, high-volume
welding/fastening machines or on flexible-cell oriented robotic lines for units
with lower volume production runs. The assembly machines attach additional
parts, fixtures or stampings to the original metal stampings. In addition to
standard production capabilities, the Company's assembly machines are also able
to perform various statistical control functions and identify improper welds and
attachments. The Company continually works with manufacturers of fixed/robotic
welding systems to develop faster, more flexible machinery. Several of the
Company's welding systems were designed by the Company.
The products manufactured by the Company use various grades and thicknesses
of steel and aluminum, including hot and cold rolled, galvanized, organically
coated, stainless and aluminized steel. The Company also produces exposed sheet
metal components, such as exterior body panels. See "Suppliers and Raw
Materials."
OEMs have established quality rating systems involving rigorous inspections
of suppliers' facilities and operations. OEMs' factory rating programs provide a
quantitative measure of a company's success in improving the quality of its
operations. The Company has received quality awards from Ford (Q1) and
DaimlerChrysler (Pentastar) and has consistently received one of Ford's highest
commercial ratings for suppliers in the stamping segment. The automotive
industry adopted a quality rating system known as QS-9000. The Company has
received QS-9000 certification in compliance with the automotive industry
requirements.
Competition
The Company operates in a highly competitive, fragmented market segment of
the automotive supply industry, with a limited number of competitors generating
revenues in excess of $200 million. The number of the Company's competitors has
decreased in recent years and is expected to continue to decrease due to the
supplier consolidation resulting from changing OEM policies. The Company's
largest competitors include The Budd Company, a subsidiary of Krupp-Thyssen AG
("Budd"), Magna International, Inc. ("Magna"), Dana Corporation, Midway Products
Corp., Modern Tool & Die Co., Midland Corporation and divisions of OEMs with
internal stamping and assembly operations, all of which have substantial
financial resources. The Company competes with Magna across most of the
Company's product lines, and with its other significant competitors in various
segments of its product lines. For example, the Company competes with Budd for
large stampings, while it competes with Aetna Industries, AG Simpson Ltd., and
Oxford Automotive, Inc. for medium-size structural stampings.
The Company principally competes for new business both at the beginning of
the development of new models and upon the redesign of existing models. New
model development generally begins two to five years before the marketing of
such models to the public. Once a producer has been designated to supply parts
for a new program, an OEM usually will continue to purchase those parts from the
designated producer for the life of the program, although not necessarily for a
redesign. Competitive factors in the market for the Company's
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<PAGE> 11
products include product quality and reliability, cost and timely delivery,
technical expertise and development capability, new product innovation and
customer service.
Suppliers and Raw Materials
The primary raw material used to produce the majority of the Company's
products is steel. The Company purchases hot and cold rolled, galvanized,
organically coated, stainless and aluminized steel from a variety of suppliers.
The Company employs just-in-time manufacturing and sourcing systems enabling it
to meet customer requirements for faster deliveries while minimizing its need to
carry significant inventory levels. The Company has not experienced any
significant shortages of raw materials and normally does not carry inventories
of raw materials or finished products in excess of those reasonably required to
meet production and shipping schedules. Raw material costs represented
approximately 52% of the Company's revenues in 1999.
Ford, Honda and DaimlerChrysler currently purchase all of the steel used by
the Company for their models directly from steel producers. As a result, the
Company has minimal exposure to changes in steel prices for parts supplied to
Ford, Honda and DaimlerChrysler, which collectively represented 70% of the
Company's revenues in 1999.
The Company expects that the content level of metal in cars and light
trucks will remain constant or increase slightly due to the trend toward
increased vehicle size and a greater emphasis on metal recycling. Although the
search for improved fuel economy and weight reduction has resulted in attempts
to reduce the sheet metal content of light vehicles, an efficient,
cost-effective substitute for steel used in the Company's structural products
has not been found. While various polymers have been used recently for fenders,
hoods and decks, such products do not have the inherent strength or structural
integrity on a cost-effective basis to be used for structural components. The
Company is involved in ongoing evaluations of the potential for the use of
aluminum and of specialty steel in its products.
Other raw materials purchased by the Company include dies, fasteners,
tubing, springs, rivets and rubber products, all of which are available from
numerous sources.
Employees
As of December 31, 1999, the Company had approximately 12,000 employees, of
whom approximately 6,500 are covered under collective bargaining agreements.
These collective bargaining agreements expire between 2000 and 2005. The Company
believes that its future success will depend in part on its ability to continue
to recruit, retain and motivate qualified personnel at all levels of the
Company. The Company has instituted a large number of employee programs to
increase employee morale and expand the employees' participation in the
Company's business. The Company has not experienced any work stoppages and
considers its relations with its employees to be good.
(b) DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
All statements, other than statements of historical fact, included in this
Form 10-K or incorporated by reference herein, including without limitation the
statements under "Business" are, or may be deemed to be, forward-looking
statements within the meaning of Section 27A of the Securities Act and Section
21E of the Securities Exchange Act of 1934, as amended (the "Exchange Act").
When used in this Form 10-K, the words "anticipate," "believe," "estimate,"
"expect," "intends" and similar expressions, as they relate to the Company, are
intended to identify forward-looking statements. Such forward-looking statements
are based on the beliefs of the Company's management as well as on assumptions
made by and information currently available to the Company at the time such
statements were made. Various economic and competitive factors could cause
actual results to differ materially from those discussed in such forward-looking
statements, including factors which are outside the control of the Company, such
as risks relating to: (i) the degree to which the Company is leveraged; (ii) the
Company's reliance on major customers and selected models; (iii) the cyclicality
and seasonality of the automotive market; (iv) the failure to realize the
benefits of recent acquisitions and joint ventures; (v) obtaining new business
on new and redesigned models; (vi) the Company's ability to continue to
implement its acquisition strategy; (vii) the highly competitive nature of the
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<PAGE> 12
automotive supply industry; and (viii) such other factors noted in this Form
10-K with respect to the Company's businesses. All subsequent written and oral
forward-looking statements attributable to the Company or persons acting on
behalf of the Company are expressly qualified in their entirety by such
cautionary statements.
ITEM 2. PROPERTIES
Facilities
The following table provides information regarding Tower Automotive's
principal facilities. The Company maintains several manufacturing facilities
located in close proximity to many of the high-volume vehicle assembly plants of
its customers. The Company's facilities are geographically located in such a way
as to enable the Company to optimize its management and logistical capabilities
on a regional basis.
<TABLE>
<CAPTION>
SQUARE TYPE OF
LOCATION FOOTAGE INTEREST DESCRIPTION OF USE
- -------- --------- -------- ------------------
<S> <C> <C> <C>
Milwaukee, Wisconsin................... 3,465,000 Owned Manufacturing
Elkton, Michigan....................... 1,100,000 Owned Manufacturing
Caserta, Italy (2 locations)........... 751,000 Owned Manufacturing
Milan, Tennessee....................... 531,000 Owned Manufacturing
Turin, Italy (4 locations)............. 512,000 Mixed Manufacturing/Office
Granite City, Illinois................. 458,000 Owned Manufacturing
Clinton Township, Michigan............. 385,000 Owned Manufacturing
Sebewaing, Michigan.................... 366,000 Owned Manufacturing
Bardstown, Kentucky.................... 300,000 Owned Manufacturing
Plymouth, Michigan..................... 294,000 Leased Manufacturing
Corydon, Indiana....................... 290,000 Leased Manufacturing
Kalamazoo, Michigan (2 locations)...... 220,000 Mixed Manufacturing/Warehouse/Office
Roanoke, Virginia...................... 185,000 Owned Manufacturing
Traverse City, Michigan................ 170,000 Owned Manufacturing
Greenville, Michigan................... 156,000 Owned Manufacturing/Office
Changchun, China....................... 140,500 Leased(1) Manufacturing
Rockford, Illinois..................... 140,000 Leased Manufacturing
Auburn, Indiana........................ 132,000 Owned Manufacturing/Office
Kendallville, Indiana.................. 131,000 Owned Manufacturing
Bellevue, Ohio......................... 126,000 Owned Manufacturing
Bluffton, Ohio......................... 102,000 Owned Manufacturing
Rochester Hills, Michigan.............. 89,000 Leased Office/Engineering/Design
Barrie, Ontario........................ 72,000 Leased Manufacturing
Belcamp, Maryland...................... 70,000 Owned Manufacturing
Upper Sandusky, Ohio................... 56,000 Owned Manufacturing
Novi, Michigan......................... 47,000 Leased Engineering/Design/Sales
Bowling Green, Kentucky................ 46,000 Owned Manufacturing
Fenton, Missouri....................... 41,000 Leased Warehouse
Roseville, Michigan.................... 21,000 Owned Office/Engineering
Grand Rapids, Michigan................. 11,000 Leased Operating Headquarters
Minneapolis, Minnesota................. 5,700 Leased Corporate Headquarters
Yokohama, Japan........................ 1,000 Leased Sales
</TABLE>
- ---------------
(1) Facility is leased by a joint venture in which the Company holds a 60%
equity interest.
Management believes that substantially all of the Company's property and
equipment is in good condition. In order to increase efficiency, the Company
expects to continue to make capital expenditures for equipment upgrades at its
facilities as necessary.
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<PAGE> 13
The Company believes that its existing facilities will be adequate to meet
its production demands for the foreseeable future. The Company's facilities were
specifically designed for the manufacturing of the Company's products. The
utilization and capacity of such facilities are dependent upon the mix of
products being produced by the Company.
ITEM 3. LEGAL PROCEEDINGS
The Company is not currently involved in any material lawsuits. The Company
believes it maintains adequate insurance, including product liability coverage.
The Company historically has not been required to pay any material liability
claims.
Environmental Matters
The Company believes it conducts its operations in substantial compliance
with applicable environmental and occupational health and safety laws. The
Company does not expect to incur material capital expenditures for environmental
compliance during its current or succeeding fiscal year. However, as is the case
with manufacturers in general, if a release of hazardous substances occurs on or
from the Company's properties or at any associated offsite disposal location, if
contamination from prior activities is discovered at any of the Company's
properties or if non-compliance with environmental regulations or permits is
discovered, the Company may be held liable and the amount of such liability
could be material. In connection with the acquisition of Trylon, MascoTech
agreed to indemnify the Company for all losses (including reasonable legal
expenses) resulting from: (i) a breach of its representation set forth in the
acquisition agreement relating to environmental and safety matters (to the
extent that such breach results in a claim being made within five years after
the acquisition and subject to a $500,000 cap); and (ii) each known
environmental condition identified on a schedule to the acquisition agreement,
including the replacement of underground storage tanks at the Traverse City
facilities. In connection with the acquisition of MSTI, MascoTech agreed to
indemnify the Company for all losses (including reasonable legal expenses)
resulting from: (i) a breach of its representation set forth in the acquisition
agreement relating to environmental and safety matters (to the extent that such
breach results in a claim being made within five years after the acquisition and
subject to a $1.5 million threshold for all losses resulting from breaches of
representation and warranties contained in the acquisition agreement); (ii)
MSTI's non-compliance with applicable federal, state, local and foreign
statutes, regulations, ordinances and similar provisions that have the force or
effect of law, judicial orders and common law concerning public health and
safety, worker health and safety and pollution or protection of the environment
prior to the acquisition; and (iii) any remediation that may be required at the
Kendallville facility.
In connection with the acquisition of APC, A.O. Smith agreed, subject to
certain limitations, to indemnify the Company for environmental matters relating
to APC arising from events occurring, or conditions arising, prior to the
closing date of the acquisition of APC. This indemnification obligation applies
to claims to the extent exceeding $250,000 submitted by the Company within three
years of the acquisition date. To the extent that such claims exceed $5.0
million in the aggregate, A.O. Smith will indemnify 70% of such losses, up to
A.O. Smith's maximum $75.0 million indemnification obligation under the purchase
agreement. In addition, A.O. Smith has agreed to retain certain environmental
liabilities for, among other things, offsite disposal of hazardous substances
prior to the acquisition of APC.
In connection with the acquisition of Active, the Company will be
indemnified, subject to certain limitations, for all losses (including
reasonable legal fees and expenses) resulting from claims arising under
environmental laws relating to pre-closing environmental matters. This
indemnification obligation applies to certain claims submitted by the Company
within two years after the closing date of the merger agreement. To the extent
that indemnification claims exceed $1.0 million in the aggregate, this
indemnification obligation will be satisfied only out of escrowed funds held
pursuant to an escrow agreement, up to a maximum indemnification obligation of
$15.0 million under the merger agreement.
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ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
There were no matters submitted to a vote of Stockholders during the fourth
quarter of 1999.
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
The Common Stock is traded on the New York Stock Exchange under the symbol
TWR. As of March 24, 2000, there were approximately 2,351 stockholders of record
of the Company's stock. The following table sets forth, for the periods
indicated, the low and high closing sale prices for Common Stock as reported on
the New York Stock Exchange:
<TABLE>
<CAPTION>
LOW HIGH
--- ----
<S> <C> <C>
1998
- ----
First Quarter............................................... $17 $23 27/32
Second Quarter.............................................. 20 31/32 27 1/8
Third Quarter............................................... 15 13/16 24 13/16
Fourth Quarter.............................................. 16 3/16 25 1/16
1999
- ----
First Quarter............................................... $17 $26 1/2
Second Quarter.............................................. 17 5/8 26 1/8
Third Quarter............................................... 17 13/16 28 1/4
Fourth Quarter.............................................. 13 1/2 20 5/8
</TABLE>
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<PAGE> 15
ITEM 6. SELECTED FINANCIAL DATA
The selected consolidated financial data for Tower Automotive presented
below for and as of the end of each of the years in the five-year period ended
December 31, 1999, is derived from Tower Automotive, Inc.'s Consolidated
Financial Statements which have been audited by Arthur Andersen LLP, independent
public accountants. The consolidated financial statements at December 31, 1998
and 1999 and for each of the three years in the period ended December 31, 1999
and the report of independent public accountants thereon are included elsewhere
in this report. The consolidated financial statements at and for the years ended
December 31, 1994, 1995 and 1996 are not included herein. This selected
consolidated financial data should be read in conjunction with "Management's
Discussion and Analysis of Results of Operations and Financial Condition" and
Tower Automotive's Consolidated Financial Statements and Notes to Consolidated
Financial Statements, included elsewhere in this report.
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
----------------------------------------------------------
1995 1996 1997 1998 1999
-------- -------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Revenues............................ $222,801 $399,925 $1,235,829 $1,836,479 $2,170,003
Cost of sales....................... 185,388 338,290 1,058,720 1,562,167 1,823,103
S,G & A expense..................... 14,308 20,004 57,869 85,169 105,950
Amortization expense................ 1,185 2,191 9,537 13,472 15,803
Operating income.................... 21,920 39,440 109,703 175,671 225,147
Interest expense, net............... 1,799 5,103 28,962 40,318 37,981
Provision for income taxes.......... 8,050 13,700 32,290 54,143 74,866
Net income.......................... 12,071 20,637 46,244 88,040 117,088
-------- -------- ---------- ---------- ----------
Basic earnings per share............ $ 0.56 $ 0.81 $ 1.14 $ 1.91 $ 2.50
Diluted earnings per share.......... $ 0.52 $ 0.77 $ 1.09 $ 1.68 $ 2.10
</TABLE>
<TABLE>
<CAPTION>
DECEMBER 31, DECEMBER 31, DECEMBER 31, DECEMBER 31, DECEMBER 31,
1995 1996 1997 1998 1999
------------ ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
BALANCE SHEET DATA:
Working capital................ $ 32,245 $ 85,523 $ 140,592 $ 106,936 $ 126,940
Total assets................... 209,476 402,595 1,680,088 1,936,167 2,552,550
Long-term debt................. 70,300 113,460 743,934 542,349 921,221
Stockholders' investment....... 85,585 181,877 515,279 606,796 727,135
</TABLE>
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS OF OPERATIONS AND
FINANCIAL CONDITION
This discussion should be read in conjunction with Tower Automotive's
Consolidated Financial Statements and Notes to Consolidated Financial Statements
included elsewhere in this report.
COMPARISON OF THE YEAR ENDED DECEMBER 31, 1999 TO THE YEAR ENDED DECEMBER 31,
1998
Revenues. Revenues for the year ended December 31, 1999 were $2.2 billion,
an 18.2% increase, compared to $1.8 billion for the year ended December 31,
1998. The increase was partially due to net new business of approximately $157.3
million. The new business related primarily to the Ford Explorer, F-Series
pick-up, Ranger, Excursion and Lincoln LS/Jaguar S Type, Dodge Durango and
Dakota, Chrysler LH, and Fiat. Additional increases of $190.5 million related to
the acquisitions of IMAR and OSLAMT in July 1998, and Active in July 1999 were
offset by $39.0 million related to the sale of the Company's Hinge Business in
August 1998. The General Motors strike had the effect of reducing revenues in
the 1998 period by approximately $24.7 million.
Cost of Sales. Cost of sales as a percent of revenues for the year ended
December 31, 1999 was 84.0% compared to 85.1% for the year ended December 31,
1998. Improvement in gross profit was due to increased production volumes and
product mix on light truck, sport utility and other models served by the
Company. The improvement from increased production was partially offset by
inefficiencies caused by customer demand
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<PAGE> 16
exceeding planned capacity at certain locations, resulting in weekend overtime
to meet production, and inefficiencies due to significant launch activity.
S, G & A Expenses. Selling, general and administrative expenses increased
to $106.0 million, or 4.9% of revenues, for the year ended December 31, 1999
compared to $85.2 million, or 4.6% of revenues, for the year ended December 31,
1998. The increased expense was due to incremental costs associated with the
Company's acquisitions of IMAR, OSLAMT, and Active of $11.9 million and
increased engineering, program development, and launch costs related to new
business of approximately $9.1 million. Additionally, the Company wrote off
certain expenses of approximately $1.7 million relating to unsuccessful
acquisition efforts. This increase was offset partially by the realization of
gains totaling $1.9 million on the cash settlement of amounts due under the
interest rate swap and lock agreements during 1999.
Amortization Expense. Amortization expense for the year ended December 31,
1999 was $15.8 million compared to $13.5 million for the year ended December 31,
1998. The increase was due to amortization related to the costs associated with
the June 1998 offering of $258.8 million of 6 3/4% Trust Convertible Preferred
Securities ("Preferred Securities"), incremental goodwill amortization related
to the acquisitions of IMAR and OSLAMT including performance payments, and the
goodwill amortization associated with the Active acquisition.
Interest Expense. Interest expense for the year ended December 31, 1999 was
$38.0 million compared to $40.3 million for the year ended December 31, 1998.
Interest expense was affected by (i) increased borrowings incurred to fund the
Company's joint venture interest in Caterina in March 1998, (ii) increased
borrowings to fund the Company's acquisition of IMAR and OSLAMT in July 1998,
(iii) increased borrowings to fund the Company's acquisition of Active in July
1999, (iv) the proceeds from the June 1998 offering of Preferred Securities,
which were used to reduce borrowings under the Company's revolving credit
facility, and (v) increased capitalized interest on construction projects.
Income Taxes. The effective income tax rate was 40% for the years ended
December 31, 1999 and 1998. The effective rates differed from the statutory
rates primarily as a result of state taxes and non-deductible goodwill
amortization.
Equity in Earnings of Joint Ventures. Equity in earnings of joint ventures
net of tax was $15.3 million and $12.7 million for the years ended December 31,
1999 and 1998, respectively. These amounts represent the Company's share of the
earnings from its joint venture interests in Metalsa, Caterina, Tower Golden
Ring and Seojin.
Minority Interest. Minority interest for the years ended December 31, 1999
and 1998 represents dividends, net of income tax benefits, on the Preferred
Securities.
COMPARISON OF THE YEAR ENDED DECEMBER 31, 1998 TO THE YEAR ENDED DECEMBER 31,
1997
Revenues. Revenues for the year ended December 31, 1998 were $1.8 billion,
a 48.6% increase, compared to $1.2 billion for the year ended December 31, 1997.
The increase is due to the acquisitions of APC in April 1997, SIMES in May 1997
and IMAR and OSLAMT in July 1998, which totaled approximately $352.9 million,
and new business awards, which totaled approximately $310.5 million, including
business relating to the Ford Ranger, Explorer, F-Series and Econoline, Dodge
Durango, Dakota and Ram Club Cab pick-ups, Honda Accord and the Chrysler LH
line. These increases were offset by a decline in production of certain models
served by the Company of approximately $38.7 million. In addition, the General
Motors strike had the effect of reducing revenues by approximately $24.7 million
during 1998.
Cost of Sales. Cost of sales as a percent of revenues for the year ended
December 31, 1998 was 85.1% compared to 85.7% for the year ended December 31,
1997. The increase in gross margin was due to operating efficiencies and
productivity initiatives of approximately $12.6 million implemented particularly
at certain of the Company's business units acquired from A.O. Smith Corporation
in 1997 as well as increased production volumes on models served by the Company.
These increases were partially offset by a higher proportion of components
purchased from outside suppliers as a result of the APC acquisition and launch
costs associated with new business totaling approximately $1.8 million.
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<PAGE> 17
S, G & A Expenses. Selling, general and administrative expenses increased
to $85.2 million, or 4.6% of revenues, for the year ended December 31, 1998
compared to $57.9 million, or 4.7% of revenues, for the year ended December 31,
1997. Approximately $4.8 million of the increase relates to a charge taken to
mark to market an interest rate agreement. The remaining increase was due
primarily to incremental costs associated with the Company's acquisitions of
APC, SIMES, IMAR and OSLAMT as well as increased engineering and program
development costs related to new business.
Amortization Expense. Amortization expense for the year ended December 31,
1998 was $13.5 million compared to $9.5 million for the year ended December 31,
1997. The increase was due to amortization related to the costs associated with
(i) the July 1997 sale of $200 million of 5% Convertible Subordinated Notes (the
"Notes"), (ii) the June 1998 offering of the Preferred Securities and (iii)
incremental goodwill amortization related to the acquisitions of APC, SIMES,
IMAR and OSLAMT.
Interest Expense. Interest expense for the year ended December 31, 1998 was
$40.3 million compared to $29.0 million for the year ended December 31, 1997.
Interest expense was affected by (i) increased borrowings incurred to fund the
acquisitions of APC, SIMES, IMAR and OSLAMT, (ii) increased borrowings incurred
to fund the Company's investments in its joint venture interests in Metalsa in
October 1997 and Caterina in March 1998, (iii) more favorable terms related to
the Company's borrowings under the credit agreement entered into in April 1997,
(iv) the proceeds from the April 1997 offering of 17,000,000 shares of Common
Stock at $17.50 per share (the "Offering"), (v) the proceeds from the July 1997
sale of the Notes, and (vi) the proceeds from the June 1998 offering of
Preferred Securities.
Income Taxes. The effective income tax rate was 40% for the year ended
December 31, 1998 and 39.9% for the year ended December 31, 1997. The effective
rates differed from the statutory rates primarily as a result of state taxes and
non-deductible goodwill amortization.
Equity in Earnings of Joint Ventures. Equity in earnings of joint ventures,
net of tax, was $12.7 million and $0.2 million for the years ended December 31,
1998 and 1997, respectively. These amounts represent the Company's share of the
earnings from its joint venture interests in Metalsa, Caterina, and Tower Golden
Ring.
Minority Interest. Minority interest for the year ended December 31, 1998
represents dividends, net of income tax benefits, on the Preferred Securities.
LIQUIDITY AND CAPITAL RESOURCES
The Company has a credit agreement which includes a revolving credit
facility that provides for borrowings of up to $750 million on an unsecured
basis, with a letter of credit sublimit of $75 million. In addition, under the
terms of the credit facility, the equivalent of up to $85 million in borrowings
can be denominated in foreign currency. As of December 31, 1999, approximately
$76 million of the outstanding borrowings are denominated in Italian lira. The
amount available under the revolving credit facility reduces to $675 million in
April 2000, $600 million in April 2001 and $500 million in April 2002. The
credit agreement has a final maturity of April 2003. Interest on the credit
facility is at the prime rate or LIBOR plus a margin ranging from 17 to 50 basis
points depending upon the ratio of the consolidated indebtedness of the Company
to its total capitalization. The weighted average interest rate for such
borrowings was 6.0% for the year ended December 31, 1999.
In August 1999, the Company amended and restated its Credit Agreement to
include an additional term loan facility of $325 million. The weighted average
interest rate for the term loan facility was 7.4% for the twelve months ended
December 31, 1999. The proceeds from the term facility were used to repay
outstanding indebtedness under the revolving facility incurred in connection
with the acquisition of Active in July 1999.
The credit agreement requires the Company to meet certain financial tests,
including but not limited to a minimum interest coverage, maximum debt/capital,
maximum leverage and maximum senior leverage ratio.
The credit agreement also contains certain negative covenants that
restrict, among other things, the ability of the Company to: (i) incur any liens
and other encumbrances; (ii) sell, assign, lease or transfer assets; (iii)
consolidate or merge with another person; (iv) make loan or make any investment
in any person;
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<PAGE> 18
(v) incur any additional indebtedness; (vi) engage in transactions with
affiliates; (vii) incur any contingent obligations; (viii) enter into any joint
venture; (ix) enter into any obligations for the payment of rent for any
property under a lease or agreement to lease; declare or make any dividend
payment or other distribution of assets, properties, cash, rights, obligations
or securities on account of any shares of its capital stock, or purchase, redeem
or otherwise acquire or retire for value any subordinated indebtedness or any
shares of its capital stock; (x) engage in a prohibited transaction or violation
of the fiduciary responsibility rules with respect to any employee benefit plan
qualified under ERISA which has resulted or could reasonably be expected to
result in liability in an aggregate amount in excess of 10% of the Company's
tangible net worth; and (xi) engage in any material line of business
substantially different from their existing lines of business. As of December
31, 1999 and 1998, the Company was in compliance with all debt covenants.
During 1997, the Company entered into interest rate swap contracts to hedge
against interest rate exposures on certain floating-rate indebtedness. These
contracts, which were to expire in November 2002, had the effect of converting
the floating-rate interest related to a notional amount of $300 million of
borrowings outstanding under the revolving credit facility into a fixed-rate of
approximately 6.75%. The interest rate swap contract was executed to balance the
Company's fixed-rate and floating-rate debt portfolios. During June 1999, the
Company terminated its position in the interest rate swap contracts resulting in
a gain of $0.5 million.
During 1997, the Company entered into an interest rate contract in a
notional amount of $75 million in anticipation of financing that did not
materialize. Accordingly, the Company adjusted the interest rate contract to
market as of December 31, 1998 and 1997. The write-down to fair value of
approximately $6.4 million and $2.0 million, respectively, was recorded as
expense in the consolidated statements of operations. During the first quarter
of 1999, the Company settled the $75 million contract with a cash payment of
approximately $7.0 million.
In certain instances, the Company is committed under existing agreements to
supply product to its customers at selling prices which are not sufficient to
cover the direct costs to produce such parts. The Company is obligated to supply
these products to its customers for the life of the related vehicles, three to
ten years. Accordingly, the Company recognizes losses at the time these losses
are probable and reasonably estimable at an amount equal to the minimum amount
necessary to fulfill its obligations to its customers. The reserves established
in connection with these recognized losses are reversed as the product is
shipped to the customers. Such amounts reversed during the years ended December
31, 1999, 1998 and 1997 were $16.8 million, $9.7 million, and $4.6 million,
respectively.
In October 1999, the Company loaned $30.0 million to J. L. French
Automotive Castings, Inc. ("J.L. French") in exchange for a convertible
subordinated promissory note due October 14, 2009. The note bears interest at
7.5% annually with interest payable on the last day of each calendar quarter
beginning December 31, 1999. The Company can convert, at its option, any portion
of the outstanding principal of the note into Class A Common Stock of J. L.
French at a preset agreed upon conversion price.
In October 1999, the Company invested $21 million for new shares
representing a 49% equity interest in Seojin Industrial Company Limited
("Seojin"). Seojin is a supplier of frames, modules and structural components to
the Korean automotive industry. Total consideration for the equity interest was
financed under the Company's revolving credit facility. In addition, the Company
advanced $19 million to Seojin in exchange for variable rate convertible bonds
(the "Bonds") due October 30, 2009. The Bonds are unsecured and rank equally
with all other present and future obligations of Seojin. Interest on the Bonds
is payable annually beginning October 30, 2000 and each October 30 thereafter
until maturity. The Company has the right to convert the Bonds into common stock
of Seojin any time on or after October 30, 2000. The conversion rate is based
upon a predetermined formula that would increase the Company's equity interest
to approximately 66%.
In July 1999, the Company acquired all of the outstanding stock of Active
for total approximate consideration of $315 million. Active, which has five
facilities, designs and produces a variety of large unexposed structural
stampings, exposed surface panels, and modules to the North American automotive
industry. Active's main customers include DaimlerChrysler, Ford, General Motors,
and Saturn. Products offered by Active include body sides, pickup box sides,
fenders, floor pan assemblies, door panels, pillars, and
18
<PAGE> 19
heat shields. The acquisition of Active enhances the Company's ability to
manufacture large and complex structures, as well as exposed surface panels. The
acquisition was financed with proceeds from the Company's revolving credit
facility.
In July 1998, the Company acquired IMAR and OSLAMT. IMAR designs and
manufactures structural parts and assemblies from two facilities in Italy,
primarily for Fiat. OSLAMT designs and manufactures tools and assemblies for the
automotive market from its facility in Turin, Italy. The purchase price
consisted of approximately $32.5 million in cash plus the assumption of
approximately $17 million of indebtedness, and an additional $15 million for
IMAR achieving certain operating targets subsequent to the acquisition.
In June 1998, Tower Automotive Capital Trust (the "Issuer"), a wholly owned
statutory business trust of the Company, completed the offering of $258.8
million of its 6 3/4% Preferred Securities, resulting in net proceeds of
approximately $249.7 million. The Preferred Securities are redeemable, in whole
or in part, on or after June 30, 2001 and all Preferred Securities must be
redeemed no later than June 30, 2018. The Preferred Securities are convertible,
at the option of the holder, into common stock of the Company at a rate of
1.6280 shares of common stock for each Preferred Security, which is equivalent
to a conversion price of $30.713 per share. The net proceeds of the offering
were used to repay outstanding indebtedness.
In May 1998, the Company's Board of Directors approved a two-for-one stock
split, which was effected as a stock dividend. On July 15, 1998, stockholders
were issued one additional share of common stock for each share of common stock
held on the record date of June 30, 1998. All references to the number of common
shares and per share amounts have been adjusted to reflect the stock split on a
retroactive basis.
In March 1998, the Company acquired a 40% equity interest in Caterina, a
supplier of structural stampings and assemblies to the Brazilian automotive
market. In addition, the Company has the right to acquire the remaining 60 % of
the equity of Caterina for $66.0 million. This right continues until 90 days
after December 31, 1999, at which time, Caterina may exercise a call option to
repurchase Tower Automotive's 40% equity investment for $26.4 million. The call
option remains in effect until March 31, 2001. The Company paid approximately
$48 million for its initial equity interest. This investment added Volkswagen
and Mercedes-Benz as new customers in Brazil.
In October 1997, the Company completed an agreement to become a partner in
Metalsa with Promotora de Empresas Zano, S.A. de C.V. ("Proeza"). Metalsa is the
largest supplier of vehicle frames and structures in Mexico. Under the terms of
the agreement, the Company acquired a 40% equity interest in Metalsa. In
addition, the parties have entered into a technology sharing arrangement that
will enable both companies to utilize the latest available product and process
technology. Metalsa is headquartered in Monterrey, Mexico and has manufacturing
facilities in Monterrey and San Luis Potosi, Mexico. Metalsa's customers include
Chrysler, General Motors, Ford, Nissan and Mercedes-Benz. In connection with
this agreement, the Company paid $120 million to Proeza, with an additional
amount of up to $45 million payable based upon the net earnings of Metalsa in
1998, 1999 and 2000. Based upon Metalsa's 1998 and 1999 net earnings, the
Company paid Proeza additional consideration of approximately $9.0 million in
the second quarter of 1999 and approximately $7.9 million during the first
quarter of 2000. The investment in Metalsa was financed with proceeds from
borrowings under the Company's revolving credit facility.
In July 1997, the Company completed the sale of the Notes pursuant to a
private placement. The Notes are due on August 1, 2004 and are convertible into
the Company's Common Stock at a conversion price of $25.88 per share. The Notes
are unsecured and may not be redeemed until August 1, 2000, except in the event
of a change in control. Proceeds from the Notes were used to repay outstanding
indebtedness under the revolving credit facility.
In May 1997, the Company acquired SIMES, headquartered in Turin, Italy.
SIMES designs and manufactures structural metal components in two facilities in
Italy, principally for Fiat. The purchase price was approximately $50.7 million
and was financed with borrowings under the Company's revolving credit facility.
The Company also paid an additional $3 million for meeting certain operating
targets subsequent to the acquisition.
19
<PAGE> 20
In April 1997, the Company acquired APC, a division of A.O. Smith
Corporation. The aggregate purchase price consisted of approximately $700
million in cash and was financed with the proceeds from the Offering and
borrowings under the credit facility. APC designs and manufactures frames, frame
components, engine cradles, suspension components and modules for the North
American automotive and heavy truck industries. This acquisition has been
accounted for using the purchase method of accounting and, accordingly, APC's
assets and liabilities have been recorded at fair value as of the acquisition
date, with the excess purchase price recorded as goodwill.
In connection with its May 1996 acquisition of MSTI, the Company financed
the cash portion of the purchase price through the issuance of two series of
senior notes having an aggregate principal amount of $65 million. The senior
notes were retired in connection with the Offering and the new revolving credit
facility described above. In connection with the retirement, the Company paid
prepayment penalties and wrote off deferred financing costs which resulted in an
extraordinary loss, net of income taxes, of approximately $2.4 million.
In August 1998, the Company sold its hinge business (the "Hinge Business")
to Dura Automotive Systems, Inc. for net proceeds of approximately $36.9 million
which approximated the book value of the net assets sold. The net proceeds were
used to repay outstanding indebtedness under the revolving credit facility.
In conjunction with its acquisitions, the Company has established reserves
for certain costs associated with facility shutdown and consolidation activities
and for general and payroll related costs primarily for planned employee
termination activities. As of December 31, 1998, approximately $21.1 million and
$3.6 million were recorded for facility shutdown and payroll related costs,
respectively. Additional reserves of $5.4 million related to facility shutdown
costs and $8.7 million for payroll related costs were recorded for the year
ended December 31, 1999. Costs incurred and charged to such reserves amounted to
$2.5 million for facility shutdown costs and $5.2 million for payroll related
termination costs during the year ended December 31, 1999. Additionally, as a
result of revisions to acquisitions' restructuring plans, $10.2 million of
facility related costs and $0.7 million of payroll related costs were reversed
against goodwill in 1999. At December 31, 1999, liabilities for approximately
$13.8 million for costs associated with facility shutdown and consolidation and
$6.4 million of costs for planned employee termination activities remained. The
timing of facility shutdown and consolidation activities has been adjusted to
reflect customer concerns with supply interruption. These reserves have been
utilized as originally intended and management believes the liabilities recorded
for shutdown and consolidation activities are adequate but not excessive as of
December 31, 1999.
During the year ended December 31, 1999, the Company generated $227.3
million of cash from operations. This compares with $221.1 million provided
during the same period in 1998. Cash provided by net income before depreciation
and amortization was $228.7 million and $175.4 million for 1999 and 1998,
respectively. Other operating items and working capital requirements relating to
customer tooling development and related receivables during pre-launch phase
decreased operating cash flow by approximately $1.4 million during 1999 and
increased operating cash flow $45.7 during the 1998 period.
Net cash used in investing activities was $599.2 million during the year
ended December 31, 1999 as compared to $267.4 million in the prior period. Net
capital expenditures totaled $197.3 million and $185.1 million for the
comparable 1999 and 1998 periods, respectively. Acquisitions and investments in
joint ventures were approximately $401.9 million and $119.2 million for the 1999
and 1998 periods, respectively. The sale of the Hinge Business contributed $36.9
million during the 1998 period.
Net cash provided by financing activities totaled $372.1 million for the
year ended December 31, 1999 compared with $49.7 million in the prior period.
Net proceeds from borrowings were $367.5 million in 1999, with net repayments of
$203.3 million in 1998. The issuance of stock contributed $4.6 million and
$253.0 million to cash flow for 1999 and 1998, respectively.
At December 31, 1999, the Company had unused borrowing capacity of
approximately $270 million, under its most restrictive debt covenant. The
Company believes the borrowing availability under its credit agreement, together
with funds generated by operations, should provide liquidity and capital
resources to pursue its business strategy for the foreseeable future, with
respect to working capital, capital expenditures,
20
<PAGE> 21
and other operating needs. The Company estimates its 2000 capital expenditures
will approximate $225 million. Under present conditions, management does not
believe access to funds will restrict its ability to pursue its acquisition
strategy.
EFFECTS OF INFLATION
Inflation generally affects the Company by increasing the interest expense
of floating-rate indebtedness and by increasing the cost of labor, equipment and
raw materials. Management believes that inflation has not significantly effected
the Company's business over the past 12 months. However, because selling prices
generally cannot be increased until a model changeover, the effects of inflation
must be offset by productivity improvements and volume from new business awards.
MARKET RISK
The Company is exposed to various market risks, including changes in
foreign currency exchange rates and interest rates. Market risk is the potential
loss arising from adverse changes in market rates and prices, such as foreign
currency exchange and interest rates. The Company's policy is to not enter into
derivatives or other financial instruments for trading or speculative purposes.
The Company periodically enters into financial instruments to manage and reduce
the impact of changes in interest rates.
Interest rate swaps are entered into as a hedge of underlying debt
instruments to effectively change the characteristics of the interest rate
without actually changing the debt instrument. Therefore, these interest rate
swap agreements convert outstanding floating rate debt to fixed rate debt for a
period of time. For fixed rate debt, interest rate changes affect the fair
market value but do not impact earnings or cash flows. Conversely for floating
rate debt, interest rate changes generally do not affect the fair market value
but do impact future earnings and cash flows, assuming other factors are held
constant.
At December 31, 1999, Tower Automotive had total debt and obligations under
capital leases of $935.1 million. The debt is comprised of fixed rate debt of
$200 million and floating rate debt of $735.1 million. The pre-tax earnings and
cash flows impact for the next year resulting from a one percentage point
increase in interest rates on variable rate debt would be approximately $7.4
million, holding other variables constant. A one percentage point increase in
interest rates would not materially impact the fair value of the fixed rate
debt.
A portion of Tower Automotive's 1999 and 1998 revenues were derived from
manufacturing operations in Europe. The results of operations and financial
position of the Company's operations in Europe are principally measured in its
respective currency and translated into U.S. dollars. The effects of foreign
currency fluctuations in Europe are somewhat mitigated by the fact that expenses
are generally incurred in the same currency in which revenues are generated. The
reported income of these subsidiaries will be higher or lower depending on a
weakening or strengthening of the U.S. dollar against the respective foreign
currency.
A portion of Tower Automotive's assets at December 31, 1999 and 1998 are
based in its foreign operations and are translated into U.S. dollars at foreign
currency exchange rates in effect as of the end of each period, with the effect
of such translation reflected as a separate component of stockholders'
investment. Accordingly, the Company's consolidated stockholders' investment
will fluctuate depending upon the weakening or strengthening of the U.S. dollar
against the respective foreign currency.
The Company's strategy for management of currency risk relies primarily
upon conducting its operations in a country's respective currency and may, from
time to time, engage in hedging programs intended to reduce the Company's
exposure to currency fluctuations. As of December 31, 1999, the Company held no
foreign currency hedge positions. Management believes the effect of a one
percent change in foreign currency rates would not materially affect the
Company's financial position or results of operations for the years ended
December 31, 1999 and 1998.
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<PAGE> 22
YEAR 2000
The Company completed its effort in resolving the impact of the year 2000
("Y2K") on the processing of date-sensitive information by the Company's
computerized and embedded systems. The Company experienced no significant
business interruption as a result of the year 2000, either internally or
externally from suppliers. The Company does not anticipate any further impact
relating to date-sensitive information processing capabilities. The Company
spent approximately $2.0 million on Y2K readiness activities.
RECENTLY ISSUED ACCOUNTING PRONOUNCEMENTS
SFAS No. 133, "Accounting for Derivative Instruments and Hedging
Activities," as amended by SFAS No. 137, becomes effective for the years
beginning after June 15, 2000. SFAS No. 133 establishes accounting and reporting
standards requiring that every derivative instrument, including certain
derivative instruments embedded in other contracts, be recorded in the balance
sheet as either an asset or liability measured at its fair value. SFAS No. 133
requires that changes in the derivative's fair value be recognized currently in
earnings unless specific hedge criteria are met. Special accounting for
qualifying hedges allow a derivative's gains or losses to offset related results
on the hedged item in the income statement and requires that a company must
formally document, designate and assess the effectiveness of transactions that
receive hedge accounting. The Company has not yet quantified the impact of
adopting SFAS No. 133 and 137, and has not yet determined the timing of
adoption.
In April 1998, the Financial Accounting Standards Board issued Statement of
Position (SOP) No. 98-5, "Reporting on the Costs of Start-Up Activities." SOP
98-5 requires the expensing of start-up activities as incurred, versus
capitalizing and expensing them over a period of time. The Company's adoption of
SOP 98-5 during the first quarter of 1999 did not materially affect the
consolidated results of operations or the financial position of the Company.
ITEM 7A.QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
See "Market Risk" section of Item 7.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The consolidated financial statements of Tower Automotive are hereby
incorporated by reference to Exhibit 99.1.
Management of the Company is responsible for the financial information and
representations contained in the consolidated financial statements and other
sections of the 1999 Annual Report. The consolidated financial statements have
been prepared in conformity with generally accepted accounting principles and
therefore include certain amounts based on management's best estimates and
judgments. The financial information contained elsewhere in the 1999 Annual
Report is consistent with that in the consolidated financial statements.
The Company maintains internal accounting control systems which management
believes provide reasonable assurance that the Company's assets are properly
safeguarded and accounted for, that the Company's books and records properly
reflect all transactions, and that the Company's policies and procedures are
implemented by qualified personnel. Reasonable assurance is based upon the
recognition that the cost of an internal control system should not exceed the
related benefits.
The Audit Committee of the Board of Directors meets with representatives of
management and Arthur Andersen LLP, the Company's independent public
accountants, on financial reporting matters and the evaluation of internal
accounting controls. The independent public accountants have free access to meet
with the Audit Committee, without the presence of management, to discuss any
appropriate matters.
Arthur Andersen LLP is engaged to express an opinion as to whether the
consolidated financial statements present fairly, in all material respects and
in accordance with generally accepted accounting principles, the financial
position, results of operations and cash flows of the Company. Solely for
purposes of
22
<PAGE> 23
planning and performing their audit of the Company's 1999 financial statements,
Arthur Andersen LLP obtained an understanding of, and selectively tested,
certain aspects of the Company's system of internal controls.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
A. DIRECTORS OF THE REGISTRANT
The information required by Item 10 with respect to the directors and
director nominees is incorporated herein by reference to the section labeled
"Election of Directors" which appears in the Company's 2000 Proxy Statement.
B. EXECUTIVE OFFICERS
The following table sets forth certain information with respect to the
Company's executive officers as of December 31, 1999:
<TABLE>
<CAPTION>
NAME AGE POSITION
- ---- --- --------
<S> <C> <C>
S.A. Johnson.......................... 59 Chairman and Director
Dugald K. Campbell.................... 53 President, Chief Executive Officer and
Director
James W. Arnold....................... 47 Vice President
Anthony A. Barone..................... 50 Vice President and Chief Financial
Officer
Richard S. Burgess.................... 45 Vice President
Luigi Candusso........................ 50 Vice President
Paul W. Jones, Jr. ................... 54 Vice President
Tommy G. Pitser....................... 52 Vice President
Scott D. Rued......................... 43 Vice President, Corporate Development
and Director
</TABLE>
S.A. (TONY) JOHNSON has served as Chairman and a Director of the Company
since April 1993. Mr. Johnson is the founder, Chief Executive Officer and
President of Hidden Creek Industries ("Hidden Creek"), a private industrial
management company based in Minneapolis which has provided certain management
and other services to the Company. Mr. Johnson is also the managing partner of
J2R Partners ("J2R"), an investment partnership that participated in the
acquisition of R.J. Tower. Prior to forming Hidden Creek, Mr. Johnson served
from 1985 to 1989 as Chief Operating Officer of Pentair, Inc., a diversified
industrial company. From 1981 to 1985, Mr. Johnson was President and Chief
Executive Officer of Onan Corp., a diversified manufacturer of electrical
generating equipment and engines for commercial, defense and industrial markets.
Mr. Johnson currently serves as Chairman and a director of Dura Automotive
Systems, Inc., a manufacturer of mechanical assemblies and integrated systems
for the automotive industry, and served as Chairman and a director of Automotive
Industries Holding, Inc., a supplier of automotive interior trim components,
from May 1990 until its sale to Lear Corporation in August 1995.
DUGALD K. CAMPBELL has served as President, Chief Executive Officer and a
Director of the Company since December 1993. From 1991 to 1993, Mr. Campbell
served as a consultant to Hidden Creek. From 1988 to 1991, he served as Vice
President and General Manager of the Sensor Systems Division of Siemens
Automotive, a manufacturer of engine management systems and components. From
1972 to 1988, he held various executive, engineering and marketing positions
with Allied Automotive, a manufacturer of vehicle systems and components and a
subsidiary of Allied Signal, Inc.
23
<PAGE> 24
JAMES W. ARNOLD has served as Vice President of the Company since 1999,
with current responsibility for the Company's Asian strategy. Mr. Arnold joined
the Company in 1998. From 1977 to 1998, Mr. Arnold held a variety of
manufacturing, sales, marketing and Asian general management positions at Allied
Signal.
ANTHONY A. BARONE has served as Vice President and Chief Financial Officer
of the Company since May 1995. From 1984 to 1995, Mr. Barone served as Chief
Financial Officer of O'Sullivan Corporation, a manufacturer of interior trim
components for the automotive industry.
RICHARD S. BURGESS has served as Vice President of the Company with
responsibility for colleague growth and development since January 1996. From
June 1994 to January 1996, Mr. Burgess served as the colleague growth and
development leader during the start-up of the Bardstown, Kentucky operation.
From October 1991 to June 1994, Mr. Burgess filled various roles in colleague
growth and development of R.J. Tower Corporation.
LUIGI CANDUSSO has served as Vice President of the Company since 1995. Mr.
Candusso is currently leading the development of global strategies relating to
customers and advanced technology. Mr. Candusso held multi-location operational
responsibility during the period April 1995 through December 1999. The
operations included Bowling Green, Kentucky; Corydon, Indiana; Granite City,
Illinois; Milan, Tennessee; Turin, Italy; Bardstown, Kentucky; Kalamazoo,
Michigan; Romulus, Michigan and Auburn, Indiana. From 1990 to April 1995, Mr.
Candusso served as Vice President and General Manager of the Sensor Systems
Division of Siemens Automotive, a manufacturer of engine management systems and
components. From 1988 to 1990, Mr. Candusso served as Vice President of
Operations at Fabricated Steel Products (FABCO), a division of Indal Canada.
PAUL W. JONES, JR. has served as Vice President of the Company since April
of 1998, with responsibility for Platform Leadership and the launch of new
products for Tower Automotive worldwide. From 1995 to 1998, Mr. Jones served as
the Senior Vice President of Operations for Rollerblade and NordicTrack in
Minnesota. From 1987 to 1995, Mr. Jones served as Corporate Director of
Procurement for Steelcase in Grand Rapids, Michigan. Prior to Steelcase, Mr.
Jones served from 1984 to 1987 as Vice President of Technology for a Division of
PepsiCo. As of January 2000, Mr. Jones has left the Company.
TOMMY G. PITSER has served as Vice President since 1996, with current
responsibility for the Company's European and South American strategy. Mr.
Pitser previously had responsibility for the Company's joint venture investment
in China and operations in Barrie, Ontario; Plymouth, Michigan; Yokohama, Japan;
Romulus, Michigan; Manchester, Michigan and Novi, Michigan, since May 1996.
Prior to joining the Company, Mr. Pitser served in various sales and marketing
capacities at MSTI. Prior to joining MSTI, Mr. Pitser served as Market
Director-Automotive at AE Goetze North America. From 1969 to 1992, Mr. Pitser
was an employee of Borg-Warner Corporation, most recently as General
Manager-Marine & Industrial Transmissions.
SCOTT D. RUED has served as Vice President, Corporate Development, and a
Director of the Company since April 1993. Mr. Rued served as Vice President,
Chief Financial Officer and a director of Automotive Industries Holding, Inc.
from April 1990 until its sale to Lear Corporation in August 1995. Mr. Rued, a
partner of J2R, has also served as Executive Vice President and Chief Financial
Officer of Hidden Creek since January 1994 and served as its Vice President
- -Finance and Corporate Development from June 1989 through 1993. Mr. Rued is also
a director of The Rottlund Company, Inc., a corporation engaged in the
development and sale of residential real estate.
There are no family relationships between or among the above-named
executive officers. There are no arrangements or understandings between any of
these officers pursuant to which any of them served as an officer.
C. SECTION 16(A) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
The information required by Item 10 with respect to compliance with
reporting requirements is incorporated herein by reference to the section
labeled "Section 16(a) Beneficial Ownership Reporting Compliance" which appears
in the Company's 2000 Proxy Statement.
24
<PAGE> 25
ITEM 11. EXECUTIVE COMPENSATION
The information required by Item 11 is incorporated herein by reference to
the sections labeled "Compensation of Directors" and "Executive Compensation"
which appear in the Company's 2000 Proxy Statement, excluding information under
the headings "Compensation Committee Report on Executive Compensation" and
"Performance Graph."
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The information required by Item 12 is incorporated herein by reference to
the section labeled "Security Ownership" which appears in the Company's 2000
Proxy Statement.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information required by Item 13 is incorporated herein by reference to
the sections labeled "Other Compensatory Agreements" and "Certain Relationships
and Related Transactions" which appears in the Company's 2000 Proxy Statement.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a) DOCUMENTS FILED AS PART OF THIS REPORT
(1) Financial Statements
- Report of Independent Public Accountants
- Consolidated Balance Sheets as of December 31, 1999 and 1998
- Consolidated Statements of Operations for the Years Ended December 31,
1999, 1998 and 1997
- Consolidated Statements of Stockholders' Investment for the Years Ended
December 31, 1999, 1998 and 1997
- Consolidated Statement of Cash Flows for the Years Ended December 31,
1999, 1998 and 1997
- Notes to Consolidated Financial Statements
(2) Financial Statement Schedules
- Report of Independent Public Accountants -- S-1
- Financial Statement Schedule I -- Condensed Financial Information of the
Registrant -- S-2
- Financial Statement Schedule II -- Valuation and Qualifying Accounts
(3) Exhibits: See "Exhibit Index" beginning on page 27.
(b) REPORTS ON FORM 8-K
(1) During the fourth quarter of 1999, the Company filed the following Form
8-K Current Reports with the Securities and Exchange Commission:
- The Company's Current Report on Form 8-K, dated October 15, 1999
(Commission File No. 1-12733), under Items 2 and 7.
25
<PAGE> 26
SIGNATURES
Pursuant to the requirements of Section 13 of the Securities Exchange Act
of 1934, the Registrant has duly caused this report to be signed on its behalf
by the undersigned, thereunto duly authorized.
TOWER AUTOMOTIVE, INC.
Date: March 8, 2000 By /s/ S.A. JOHNSON
-----------------------------------
S.A. Johnson, Chairman
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ S.A. JOHNSON Chairman and Director March 8, 2000
- -----------------------------------------------------
S.A. Johnson
/s/ DUGALD K. CAMPBELL President, Chief Executive March 8, 2000
- ----------------------------------------------------- Officer (Principal Executive
Dugald K. Campbell Officer) and Director
/s/ JAMES R. LOZELLE Director March 8, 2000
- -----------------------------------------------------
James R. Lozelle
/s/ SCOTT D. RUED Vice President, Corporate March 8, 2000
- ----------------------------------------------------- Development and Director
Scott D. Rued
/s/ F.J. LOUGHREY Director March 8, 2000
- -----------------------------------------------------
F.J. Loughrey
/s/ KIM B. CLARK Director March 8, 2000
- -----------------------------------------------------
Kim B. Clark
/s/ ENRIQUE ZAMBRANO Director March 8, 2000
- -----------------------------------------------------
Enrique Zambrano
/s/ ANTHONY A. BARONE Vice President and Chief March 8, 2000
- ----------------------------------------------------- Financial Officer (Principal
Anthony A. Barone Accounting Officer)
</TABLE>
26
<PAGE> 27
TOWER AUTOMOTIVE, INC.
EXHIBIT INDEX TO ANNUAL REPORT
ON FORM 10-K
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1999
<TABLE>
<CAPTION>
PAGE NUMBER IN
SEQUENTIAL
NUMBERING
OF ALL FORM 10-K
EXHIBIT AND EXHIBIT PAGES
------- -----------------
<C> <S> <C>
3.1 -- Amended and Restated Certificate of Incorporation of *
the Registrant, as amended by the Certificate of
Amendment to Certificate of Incorporated, dated June
2, 1997, incorporated by reference to the Registrant's
Form S-3 Registration Statement (Registration No.
333-38827) filed under the Securities Act of 1933.
3.2 -- Amended and Restated By-laws of the Registrant, *
incorporated by reference to Exhibit 3.2 of the
Registrant's Form S-1 Registration Statement
(Registration No. 33-80320) (the "S-1").
4.1 -- Form of Common Stock Certificate, incorporated by *
reference to Exhibit 4.1 of the S-1.
10.1 -- Form of Stock Subscription Agreement between the *
Company and certain management employees, incorporated
by reference to Exhibit 10.3 of the S-1.
10.2 -- Registration Agreement dated as of April 15, 1993 *
between the Registrant and certain investors; and
First Amendment to Registration Agreement dated as of
May 4, 1994 by and among the Registrant and certain
investors, incorporated by reference to Exhibit 10.4
of the S-1.
10.3 -- Stock Option and Indemnification Agreement dated as of *
April 15, 1993 by and between the Registrant and Onex
U.S. Investments, Inc., incorporated by reference to
Exhibit 10.7 of the S-1.
10.4** -- Employment and Consulting Agreement dated as of April *
15, 1993 between R.J. Tower Corporation and Adrian
Vander Starre, incorporated by reference to Exhibit
10.9 of the S-1.
10.5 -- Form of Management Stock Pledge Agreement, *
incorporated by reference to Exhibit 10.10 of the S-1.
10.6 -- Form of Convertible Promissory Note dated as of May 4, *
1994 of the Registrant, incorporated by reference to
Exhibit 10.12 of the S-1.
10.7** -- Stock Option Agreement dated May 4, 1994 by and *
between the Registrant and James R. Lozelle
incorporated by reference to Exhibit 10.14 of the S-1.
10.8 -- Lease Agreement dated March 1, 1988 between 8900 *
Inkster Associates and Edgewood Tool and Manufacturing
Company; and Amendment to Lease dated as of March 1,
1994 between 8900 Inkster Associates and Edgewood Tool
and Manufacturing Company, incorporated by reference
to Exhibit 10.16 of the S-1.
</TABLE>
27
<PAGE> 28
<TABLE>
<CAPTION>
PAGE NUMBER IN
SEQUENTIAL
NUMBERING
OF ALL FORM 10-K
EXHIBIT AND EXHIBIT PAGES
------- -----------------
<C> <S> <C>
10.9** -- 1994 Key Employee Stock Option Plan, incorporated by *
reference to Exhibit 10.18 of the S-1.
10.10** -- Form of Salary Continuation Agreement between the *
Registrant and certain employees, incorporated by
reference to Exhibit 10.19 of the S-1.
10.11 -- Form of Subscription Agreement between the Registrant *
and certain stockholders, incorporated by reference to
Exhibit 10.20 of the S-1.
10.12 -- Stock Purchase Agreement by and among the Registrant *
and certain other parties, dated June 10, 1994,
incorporated by reference to Exhibit 10.21 of the S-1.
10.13 -- Amended and Restated Security Agreement, dated as of *
May 31, 1996, made by Trylon Corporation, a Michigan
corporation, in favor of Comerica Bank, as agent,
incorporated by reference to Exhibit 4.9 of the May
8-K.
10.14 -- Form of Second Amended and Restated Mortgage, dated as *
of May 31, 1996, made by each of R.J. Tower
Corporation, a Michigan corporation, R.J. Tower
Corporation, an Indiana corporation, Kalamazoo
Stamping and Die Company, a Michigan corporation,
Edgewood Manufacturing Corp., a Delaware corporation,
in favor of Comerica Bank, as agent, incorporated by
reference to Exhibit 4.10 of the May 8-K.
10.15 -- Second Amended and Restated Security Agreement (Third *
Party Pledge), dated as of May 31, 1996, made by Tower
Automotive, Inc., a Delaware corporation, in favor of
Comerica Bank, as agent, incorporated by reference to
Exhibit 4.11 of the May 8-K.
10.16 -- Intercreditor and Collateral Agency Agreement, dated *
as of May 31, 1996, among Comerica Bank, Bank of
America Illinois, First Bank National Association,
Teachers Insurance and Annuity Association of America,
Northern Life Insurance Company, Northwestern National
Life Insurance Company, Bankers Security Life
Insurance Society, Jefferson-Pilot Life Insurance
Company and Alexander Hamilton Life Insurance Company
of America, incorporated by reference to Exhibit 4.12
of the May 8-K.
10.17 -- Form of R.J. Tower Corporation Note Agreement, dated *
as of May 31, 1996, between R.J. Tower Corporation and
each of Teachers Insurance and Annuity Association of
America, Northern Life Insurance Company, Northwestern
National Life Insurance Company, Bankers Security Life
Insurance Society, Jefferson-Pilot Life Insurance
Company and Alexander Hamilton Life Insurance Company
of America, incorporated by reference to Exhibit 4.13
of the May 8-K.
</TABLE>
28
<PAGE> 29
<TABLE>
<CAPTION>
PAGE NUMBER IN
SEQUENTIAL
NUMBERING
OF ALL FORM 10-K
EXHIBIT AND EXHIBIT PAGES
------- -----------------
<C> <S> <C>
10.18 -- Form of 7.65% Senior Secured Notes, Series A, due June *
1, 2006, issued by R.J. Tower Corporation to (i)
Teachers Insurance and Annuity Association of America
in the principal amount of $10 million, (ii) Northern
Life Insurance Company in the principal amount of $8.5
million, (iii) Northwestern National Life Insurance
Company in the principal amount of $4.0 million, (iv)
Bankers Security Life Insurance Society in the
principal amount of $2.5 million, (v) Jefferson-Pilot
Life Insurance Company in the principal amount of $7.5
million and (vi) Alexander Hamilton Life Insurance
Company of America in the principal amount of $7.5
million, incorporated by reference to Exhibit 4.14 of
the May 8-K.
10.19 -- 7.82% Senior Secured Note, Series B, due June 1, 2008, *
issued by R.J. Tower Corporation to Teachers Insurance
and Annuity Association of America in the principal
amount of $25 million, incorporated by reference to
Exhibit 4.15 of the May 8-K.
10.20 -- Subsidiaries Guaranty, dated as of May 31, 1996, made *
by Trylon Corporation, a Michigan corporation, R.J.
Tower Corporation, a Kentucky corporation, R.J. Tower
Corporation, an Indiana corporation, Kalamazoo
Stamping and Die Company, a Michigan corporation,
Edgewood Manufacturing Corp., a Delaware corporation
and MascoTech Stamping Technologies, Inc., a Delaware
corporation, in favor of Teachers Insurance and
Annuity Association of America, Northern Life
Insurance Company, Northwestern National Life
Insurance Company, Bankers Security Life Insurance
Society, Jefferson-Pilot Life Insurance Company and
Alexander Hamilton Life Insurance Company of America,
incorporated by reference to Exhibit 4.16 of the May
8-K.
10.21 -- Registration Rights and Voting Agreement dated as of *
May 31, 1996, between Tower Automotive, Inc. and
MascoTech, Inc., incorporated by reference to Exhibit
4.17 of the May 8-K.
10.22 -- $5 million Promissory Note, dated as of May 31, 1996, *
issued by R.J. Tower Corporation to MascoTech, Inc.,
incorporated by reference to Exhibit 4.18 of the May
8-K.
10.23 -- Stock Purchase Warrant, dated as of May 31, 1996, *
issued by Tower Automotive, Inc. to MascoTech, Inc.,
incorporated by reference to Exhibit 4.19 of the May
8-K.
</TABLE>
29
<PAGE> 30
<TABLE>
<CAPTION>
PAGE NUMBER IN
SEQUENTIAL
NUMBERING
OF ALL FORM 10-K
EXHIBIT AND EXHIBIT PAGES
------- -----------------
<C> <S> <C>
10.24 -- Second Amended and Restated Guaranty (Tower-Michigan *
Debt), dated as of May 30, 1996, made by R.J. Tower
Corporation, an Indiana corporation, Edgewood
Manufacturing Corp., a Delaware corporation, R.J.
Tower Corporation, a Kentucky corporation, Kalamazoo
Stamping and Die Company, a Michigan corporation,
Trylon Corporation, a Michigan corporation and
MascoTech Stamping Technologies, Inc., a Delaware
corporation, in favor of Comerica Bank, as agent,
incorporated by reference to Exhibit 4.5 of the
Registrant's Form 8-K/A No. 1 dated June 4, 1996,
filed under the Securities Exchange Act of 1934.
10.25 -- Fourth Amended and Restated Credit Agreement dated as *
of September 6, 1996 by and between R.J. Tower
Corporation and Comerica Bank, incorporated by
reference to Exhibit 10.1 of the Registrant's
Quarterly Report on Form 10-Q for the quarterly period
ended September 30, 1996, filed under the Securities
Exchange Act of 1934, as amended.
10.26 -- Tower Automotive, Inc. Independent Director Stock *
Option Plan, incorporated by reference to Exhibit 4.3
of the Registrant's Form S-8 dated December 5, 1996,
filed under the Securities Act of 1933.
10.27 -- Asset Purchase Agreement, dated January 27, 1997 by *
and among A.O. Smith Corporation, A.O. Smith
Enterprises Ltd., Tower Automotive Acquisition, Inc.,
Tower Automotive, Inc. and R.J. Tower Corporation,
incorporated by reference to Exhibit 2.1 of the
Registrant's Form S-3 Registration Statement
(Registration No. 333-21943)
10.28 -- Joint Venture Agreement by and among Promotora de *
Empresas Zano, S.A. de C.V., Metalsa, S.A. de C.V. and
R.J. Tower Corporation dated as of September 26, 1997,
incorporated by reference to Exhibit 2.1 of the
Registrant's Form 8-K dated October 23, 1997, filed
under the Securities Exchange Act of 1934.
10.29 -- Purchase Agreement, dated as of July 23, 1997, by and *
between the Company and Donaldson, Lufkin & Jenrette
Securities Corporation, Robert W. Baird & Co.
Incorporated, PaineWebber Incorporated and BT
Securities Corporation, incorporated by reference to
Exhibit 1.1 of the Company's Form S-3 Registration
Statement (Registration No. 333-38827) (the "Form
S-3"), filed with the Commission on October 27, 1997.
10.30 -- Indenture, dated as of July 28, 1997, by and between *
the Company and Bank of New York, as trustee
(including form of 5% Convertible Subordinated Note
due 2004), incorporated by reference to Exhibit 4.5 of
the Form S-3.
</TABLE>
30
<PAGE> 31
<TABLE>
<CAPTION>
PAGE NUMBER IN
SEQUENTIAL
NUMBERING
OF ALL FORM 10-K
EXHIBIT AND EXHIBIT PAGES
------- -----------------
<C> <S> <C>
10.31 -- Registration Rights Agreement, dated as of July 28, *
1997, by and between the Company and Donaldson, Lufkin
& Jenrette Securities Corporation, Robert W. Baird &
Co. Incorporated, PaineWebber Incorporated and BT
Securities Corporation, incorporated by reference to
Exhibit 4.6 of the Form S-3.
10.32 -- Credit Agreement, dated as of April 18, 1997, among *
R.J. Tower Corporation, Bank of America National Trust
and Savings Association, as agent, and the other
financial institutions named therein, incorporated by
reference to Exhibit 10.39 of the Registrant's Form
10-K/A dated June 30, 1998, filed under the Securities
Exchange Act of 1934.
10.33 -- Amendment No. 1 to Credit Agreement, dated as of July *
22, 1997, among R.J. Tower Corporation, the various
financial institutions named therein and Bank of
America National Trust and Savings Association, as
agent, incorporated by reference to Exhibit 10.40 of
the Registrant's Form 10-K/A dated June 30, 1998,
filed under the Securities Exchange Act of 1934.
10.34 -- Amendment No. 2 and Consent to Credit Agreement, dated *
as of October 3, 1997, among R.J. Tower Corporation,
the various financial institutions named therein and
Bank of America National Trust and Savings
Association, as agent, incorporated by reference to
Exhibit 10.41 of the Registrant's Form 10-K/A dated
June 30, 1998, filed under the Securities Exchange Act
of 1934.
10.35 -- Alternate Currency Annex, dated as of May 29, 1997, by *
and among R.J. Tower Corporation, Tower Italia,
S.r.L., Interfin S.p.A., Instituto Bancario San Paolo
di Torino S.p.A. and Bank of America National Trust
and Savings Association, incorporated by reference to
Exhibit 10.42 of the Registrant's Form 10-K/A, dated
June 30, 1998, filed under the Securities Exchange Act
of 1934.
10.36 -- Certificate of Trust of Tower Automotive Capital *
Trust, incorporated by reference to Exhibit 4.1 of the
Registrant's Quarterly Report on Form 10-Q for the
quarterly period ended June 30, 1998, filed under the
Securities Exchange Act of 1934.
10.37 -- Amended and Restated Declaration of Trust of Tower *
Automotive Capital Trust, dated June 9, 1998,
incorporated by reference to Exhibit 4.2 of the
Registrant's Quarterly Report on Form 10-Q for the
quarterly period ended June 30, 1998, filed under the
Securities Exchange Act of 1934.
10.38 -- Junior Convertible Subordinated Indenture for the *
6 3/4% Convertible Subordinated Debentures, between
Tower Automotive, Inc. and the First National Bank of
Chicago, as Subordinated Debt Trustee, dated as of
June 9, 1998, incorporated by reference to Exhibit 4.3
of the Registrant's Quarterly Report on Form 10-Q for
the quarterly period ended June 30, 1998, filed under
the Securities Exchange Act of 1934.
</TABLE>
31
<PAGE> 32
<TABLE>
<CAPTION>
PAGE NUMBER IN
SEQUENTIAL
NUMBERING
OF ALL FORM 10-K
EXHIBIT AND EXHIBIT PAGES
------- -----------------
<C> <S> <C>
10.39 -- Form of 6 3/4% Preferred Securities, incorporated by *
reference to Exhibit 4.4 of the Registrant's Quarterly
Report on Form 10-Q for the quarterly period ended
June 30, 1998, filed under the Securities Exchange Act
of 1934.
10.40 -- Form of 6 3/4% Junior Convertible Subordinated *
Debentures, incorporated by reference to Exhibit 4.5
of the Registrant's Quarterly Report on Form 10-Q for
the quarterly period ended June 30, 1998, filed under
the Securities Exchange Act of 1934.
10.41 -- Guarantee Agreement, dated as of June 9, 1998, between *
Tower Automotive, Inc. , as Guarantor, and the First
National Bank of Chicago, as Guarantee Trustee,
incorporated by reference to Exhibit 4.6 of the
Registrant's Quarterly Report on Form 10-Q for the
quarterly period ended June 30, 1998, filed under the
Securities Exchange Act of 1934.
10.42 -- Registration Rights Agreement, dated June 9, 1998, *
among Tower Automotive Capital Trust and Donaldson,
Lufkin & Jenrette Securities Corporation, Robert W.
Baird & Co. Incorporated, Merrill Lynch & Co. and
PaineWebber Incorporated, as Initial Purchasers,
incorporated by reference to Exhibit 4.7 of the
Registrant's Quarterly Report on Form 10-Q for the
quarterly period ended June 30, 1998, filed under the
Securities Exchange Act of 1934.
10.43 -- Amended and Restated Credit Agreement among R.J. Tower
Corporation, Tower Italia, S.r.L., Bank of America
National Trust and Savings Association, as agent, and
the other financial institutions named therein, dated
August 23, 1999 filed herewith.
12.1 -- Statement and Computation of Ratio of Earnings to
Fixed Charges filed herewith.
21.1 -- List of Subsidiaries filed herewith.
23.1 -- Consent of Independent Public Accountants filed
herewith.
27.1 -- Financial Data Schedule filed herewith.
99.1 -- Consolidated Financial Statements of Tower Automotive,
Inc. for the Year Ended December 31, 1999 together
with Report of Independent Public Accountants filed
herewith.
</TABLE>
- ---------------
* Incorporated by reference.
** Indicates compensatory arrangement.
32
<PAGE> 33
SCHEDULE I
TOWER AUTOMOTIVE, INC.
CONDENSED FINANCIAL INFORMATION OF REGISTRANT
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
We have audited in accordance with auditing standards generally accepted in
the United States, the financial statements included in the Tower Automotive,
Inc. and Subsidiaries' annual report to stockholders incorporated by reference
in this Form 10-K, and have issued our report thereon dated January 25, 2000.
Our audit was made for the purpose of forming an opinion on the basic
financial statements taken as a whole. The Schedule I -- Condensed Financial
Information and Schedule II -- Valuation and Qualifying Accounts of Registrant
are the responsibility of the Company's management and are presented for
purposes of complying with the Securities and Exchange Commission's rules and
are not part of the basic financial statements. These schedules have been
subjected to the auditing procedures applied in the audit of the basic financial
statements and, in our opinion, fairly state in all material respects the
financial data required to be set forth therein in relation to the basic
financial statements taken as a whole.
ARTHUR ANDERSEN LLP
Minneapolis, Minnesota,
January 25, 2000
S-1
<PAGE> 34
SCHEDULE I
TOWER AUTOMOTIVE, INC.
CONDENSED FINANCIAL INFORMATION OF REGISTRANT
TOWER AUTOMOTIVE, INC. (PARENT COMPANY)
CONDENSED BALANCE SHEETS
AS OF DECEMBER 31, 1999 AND 1998
(AMOUNTS IN THOUSANDS, EXCEPT SHARE AMOUNTS)
<TABLE>
<CAPTION>
1999 1998
---------- ----------
<S> <C> <C>
ASSETS
Investment in consolidated subsidiaries................... $1,147,746 $1,056,202
Investment in J. L. French................................ 30,000 --
Debt issue costs, net of accumulated amortization of
$2,754 and $1,450...................................... 12,306 13,502
---------- ----------
$1,190,052 $1,069,704
========== ==========
LIABILITIES AND STOCKHOLDERS' INVESTMENT
Accrued liabilities....................................... $ 4,167 $ 4,158
Convertible subordinated notes............................ 200,000 200,000
6 3/4% convertible subordinated debentures payable to
trust subsidiary....................................... 258,750 258,750
---------- ----------
Commitments and contingencies Stockholders' investment:
Preferred stock, par value $1; 5,000,000 shares
authorized; no shares issued or outstanding........... -- --
Common stock, par value $.01; 200,000,000 shares
authorized; 46,879,454 and 46,281,880 shares issued
and outstanding....................................... 469 463
Warrants to acquire common stock....................... 2,000 2,000
Additional paid-in capital............................. 437,210 426,471
Retained earnings...................................... 294,522 177,434
Deferred Income Stock Plan............................. (4,484) --
Accumulated other comprehensive income -- cumulative
translation adjustment................................ (2,582) 428
---------- ----------
Total stockholders' investment.................... 727,135 606,796
---------- ----------
$1,190,052 $1,069,704
========== ==========
</TABLE>
The accompanying notes are an integral part of these condensed statements.
S-2
<PAGE> 35
SCHEDULE I
TOWER AUTOMOTIVE, INC.
CONDENSED FINANCIAL INFORMATION OF REGISTRANT
TOWER AUTOMOTIVE, INC. (PARENT COMPANY)
CONDENSED BALANCE SHEETS
AS OF DECEMBER 31, 1999 AND 1998
(IN THOUSANDS)
<TABLE>
<CAPTION>
1999 1998 1997
-------- -------- -------
<S> <C> <C> <C>
Amortization expense........................................ $ 1,304 $ 1,106 $ 344
-------- -------- -------
Operating loss............................................ (1,304) (1,106) (344)
Interest expense............................................ 27,466 19,769 4,250
Interest income............................................. (488) -- --
-------- -------- -------
Loss before income taxes and equity in earnings of
consolidated subsidiaries.............................. (28,282) (20,875) (4,594)
Income tax benefit.......................................... 11,313 8,354 1,838
Equity in earnings of consolidated subsidiaries............. 134,057 100,561 49,000
-------- -------- -------
Net income........................................ $117,088 $ 88,040 $46,244
======== ======== =======
</TABLE>
The accompanying notes are an integral part of the condensed statements.
S-3
<PAGE> 36
SCHEDULE I
TOWER AUTOMOTIVE INC.
CONDENSED FINANCIAL INFORMATION OF REGISTRANT
TOWER AUTOMOTIVE, INC. (PARENT COMPANY)
CONDENSED STATEMENTS OF STOCKHOLDERS' INVESTMENT
(AMOUNTS IN THOUSANDS, EXCEPT SHARE AMOUNTS)
<TABLE>
<CAPTION>
WARRANTS TO DEFERRED ACCUMULATED
COMMON STOCK ADDITIONAL ACQUIRE INCOME OTHER TOTAL
------------------- PAID-IN RETAINED COMMON STOCK COMPREHENSIVE STOCKHOLDERS'
SHARES AMOUNT CAPITAL EARNINGS STOCK PLAN INCOME INVESTMENT
---------- ------ ---------- -------- ----------- -------- ------------- -------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
BALANCE, DECEMBER 31,
1996..................... 28,567,586 $286 $136,441 $ 43,150 $2,000 $ -- $ -- $181,877
Conversion of Edgewood
notes.................... 225,502 2 682 -- -- -- -- 684
Exercise of options........ 52,600 1 234 -- -- -- -- 235
Sales of stock under
Employee Stock Discount
Purchase Plan............ 129,802 1 1,575 -- -- -- -- 1,576
Collection of common stock
subscriptions
receivable............... -- -- 78 -- -- -- -- 78
Public offering of common
stock, net............... 17,000,000 170 284,393 -- -- -- -- 284,563
Net income................. -- -- -- 46,244 -- -- --
Other comprehensive
income -- foreign
currency translation
adjustment............... -- -- -- -- -- -- 22
Total comprehensive
income........... -- 46,266
---------- ---- -------- -------- ------ ------- ------- --------
BALANCE, DECEMBER 31,
1997..................... 45,975,490 460 423,403 89,394 2,000 -- 22 515,279
Conversion of Edgewood
notes.................... 62,000 1 188 -- -- -- -- 189
Exercise of options........ 112,300 1 467 -- -- -- -- 468
Sales of stock under
Employee Stock Discount
Purchase Plan............ 132,090 1 2,344 -- -- -- -- 2,345
Collection of common stock
subscriptions
receivable............... -- -- 69 -- -- -- -- 69
Net income................. -- -- -- 88,040 -- -- --
Other comprehensive
income -- foreign........ -- -- --
currency translation
adjustment............. -- -- -- -- -- -- 406
Total comprehensive
income........... -- 88,446
---------- ---- -------- -------- ------ ------- ------- --------
BALANCE, DECEMBER 31,
1998..................... 46,281,880 463 426,471 177,434 2,000 -- 428 606,796
Conversion of Edgewood
notes.................... 250,000 3 755 -- -- -- -- 758
Exercise of options........ 125,000 1 996 -- -- -- -- 997
Sales of stock under
Employee Stock Discount
Purchase Plan............ 222,574 2 3,579 -- -- -- -- 3,581
Deferred Income Stock
Plan..................... -- -- 4,484 -- -- (4,484) -- --
Non-employee options
grant.................... -- -- 897 -- -- -- -- 897
Collection of common stock
subscriptions
receivable............... -- -- 28 -- -- -- -- 28
Net income................. -- -- -- 117,088 -- -- --
Other comprehensive
income -- foreign
currency translation
adjustment............... -- -- -- -- -- -- (3,010)
Total comprehensive
income........... -- -- -- -- -- -- -- 114,078
---------- ---- -------- -------- ------ ------- ------- --------
BALANCE, DECEMBER 31,
1999..................... 46,879,454 $469 $437,210 $294,522 $2,000 $(4,484) $(2,582) $727,135
========== ==== ======== ======== ====== ======= ======= ========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
S-4
<PAGE> 37
SCHEDULE I
TOWER AUTOMOTIVE, INC.
CONDENSED FINANCIAL INFORMATION OF REGISTRANT
TOWER AUTOMOTIVE, INC. (PARENT COMPANY)
CONDENSED STATEMENTS OF CASH FLOWS
FOR THE YEARS ENDED DECEMBER 31, 1999, 1998 AND 1997
(AMOUNTS IN THOUSANDS)
<TABLE>
<CAPTION>
1999 1998 1997
--------- --------- ---------
<S> <C> <C> <C>
Operating Activities:
Net income.............................................. $ 117,088 $ 88,040 $ 46,244
Amortization expense.................................... 1,304 1,106 344
Equity in earnings of consolidated subsidiaries......... (134,057) (100,561) (49,000)
Change in current operating items -- accrued
liabilities.......................................... 9 (92) 4,250
--------- --------- ---------
Net cash provided by (used in) operating
activities.................................... (15,656) (11,507) 1,838
--------- --------- ---------
Investing Activities:
Dividends received from consolidated subsidiaries....... 27,466 19,861 5,915
Additional investment in consolidated subsidiaries...... (16,446) (260,950) (488,290)
--------- --------- ---------
Net cash provided by (used for) investing
activities.................................... 11,020 (241,089) (482,375)
--------- --------- ---------
Financing Activities:
Net proceeds from issuance of common stock.............. 4,636 2,883 286,452
Net proceeds from issuance of convertible Subordinated
notes................................................ -- -- 194,085
Net proceeds from 6 3/4% convertible subordinated
Debentures payable to trust subsidiary............... -- 249,713 --
--------- --------- ---------
Net cash provided by financing activities....... 4,636 252,596 480,537
--------- --------- ---------
Net change in cash and cash equivalents......... -- -- --
Cash and cash equivalents:
Beginning of period..................................... -- -- --
--------- --------- ---------
End of period........................................... $ -- $ -- $ --
========= ========= =========
Supplemental Cash Flow Information:
Cash paid for -- Interest............................... $ 27,466 $ 19,861 $ --
========= ========= =========
Income taxes............................................ $ -- $ -- $ --
========= ========= =========
</TABLE>
The accompanying notes are an integral part of these condensed statements.
S-5
<PAGE> 38
SCHEDULE I
TOWER AUTOMOTIVE, INC.
CONDENSED FINANCIAL INFORMATION OF REGISTRANT
TOWER AUTOMOTIVE, INC. (PARENT COMPANY)
NOTES TO CONDENSED FINANCIAL STATEMENTS
NOTE 1. ORGANIZATION AND OPERATIONS
Tower Automotive, Inc. (the "Parent Company") and its consolidated
subsidiaries (the "Subsidiaries"), collectively the Company, produces a broad
range of assemblies and modules for vehicle body structures and suspension
systems for the global automotive industry. The Company has facilities in the
United States, Canada, Italy and Japan, in China through its joint venture
investment in Tower Golden Ring, in Brazil through its joint venture interest in
Caterina, in Mexico through its joint venture investment in Metalsa, and in
Korea through its joint venture investment in Seojin.
The Notes to Consolidated Financial Statements of Tower Automotive, Inc.
and Subsidiaries should be read in conjunction with this Schedule I.
NOTE 2. CONVERTIBLE SUBORDINATED NOTES
In July 1997, the Parent Company completed the offering of $200 million of
Convertible Subordinated Notes (the "Notes"). The net proceeds from the Notes,
$194.1 million, were contributed as an additional investment in the
Subsidiaries. The Notes bear interest at 5%, are unsecured, are due on August 1,
2004 and are convertible into Common Stock of the Parent Company at a conversion
price of $25.88 per share. The Parent Company may make optional redemptions of
the Notes after August 1, 2000 at amounts ranging from 102.857% to 100.714% of
face value. In the event of a change in control (as defined), the holders of the
Notes may require the Parent Company to redeem the Notes at face value plus
accrued interest.
NOTE 3. STOCKHOLDERS' INVESTMENT
In April 1997, the Company completed an offering of 17,000,000 shares of
Common Stock in a public offering at an offering price of $17.50 per share. The
net proceeds of approximately $284.6 million were contributed as an additional
investment in the Subsidiaries.
On May 19, 1998, the Parent Company's Board of Directors approved a
two-for-one stock split, which was effected as a stock dividend. On July 15,
1998, stockholders were issued one additional share of Common Stock for each
share of Common Stock held on the record date of June 30, 1998. All references
to the number of common shares and per share amounts have been adjusted to
reflect the stock split on a retroactive basis.
NOTE 4. 6 3/4% CONVERTIBLE SUBORDINATED DEBENTURES
On June 9, 1998, Tower Automotive Capital Trust (the "Issuer"), a wholly
owned statutory business trust of the Parent Company, completed the offering of
$258.8 million of its 6 3/4% Trust Convertible Preferred Securities ("Preferred
Securities"), resulting in net proceeds of approximately $249.7 million. The
Preferred Securities are redeemable, in whole or in part, on or after June 30,
2001 and all Preferred Securities must be redeemed no later than June 30, 2018.
The Preferred Securities are convertible, at the option of the holder, into
Common Stock of the Parent Company at a rate of 1.6280 shares of Common Stock
for each Preferred Security, which is equivalent to a conversion price of
$30.713 per share. The obligations of the Issuer under the Preferred Securities
are fully and unconditionally guaranteed by the Parent Company. Concurrently
with the issuance of the Preferred Securities, the Issuer acquired $258.8
million of the Parent Company's 6 3/4% Convertible Subordinated Debentures
("Debentures") for net proceeds of $249.7 million. Interest is payable quarterly
and the notes mature on June 30, 2018. The net proceeds received from the
issuance of the Debentures by the Parent Company were contributed as an
additional investment in the Subsidiaries.
S-6
<PAGE> 39
SCHEDULE I
TOWER AUTOMOTIVE, INC.
CONDENSED FINANCIAL INFORMATION OF REGISTRANT -- (CONTINUED)
NOTE 5. J.L. FRENCH CONVERTIBLE SUBORDINATED NOTE
On October 14, 1999, the Company loaned $30.0 million to J.L. French
Automotive Castings, Inc. ("J.L. French") in exchange for a convertible
subordinated promissory note due October 14, 2009. The note bears interest at
7.5% annually with interest payable on the last day of each calendar quarter
beginning December 31, 1999. The Company can convert, at its option, any portion
of the outstanding principal of the note into Class A Common Stock of J.L.
French at a preset agreed upon conversion price.
NOTE 6. GUARANTEES AND RESTRICTIONS
Guarantee of Subsidiaries' Debt
In April 1997, the Subsidiaries entered into a revolving credit facility
that provides for borrowings of up to $750 million on an unsecured basis with a
letter of credit sublimit of $75 million. The Parent Company provided a
guarantee for this debt. Under the terms of the credit facility, the equivalent
of up to $85 million in borrowings can be denominated in foreign currency. As of
December 31, 1999, approximately $76 million of the outstanding borrowings were
denominated in Italian lira. The amount available under the revolving credit
facility reduces to $675 million in April 2000, $600 million in April 2001 and
$500 million in April 2002. The credit facility has a final maturity of April
2003. Interest on the credit facility is at the prime rate or LIBOR plus a
margin ranging from 17 to 50 basis points depending upon the ratio of the
consolidated indebtedness of the Company to its total capitalization. The
weighted average interest rate for such borrowings was 6.0% for the year ended
December 31, 1999.
On August 23, 1999, the Company amended and restated its Credit Agreement
to include a term loan add on facility of $325 million. The weighted average
interest rate for the term loan facility was 7.4% for the twelve months ended
December 31, 1999. The proceeds from the term facility were used to repay
outstanding indebtedness under the revolving facility incurred in connection
with the acquisition of Active in July 1999.
Restrictions on Subsidiaries to Make Distributions to the Parent Company
Under the terms of the revolving credit facility described above, the
Subsidiaries are restricted in their ability to dividend, loan or otherwise
distribute assets, properties, cash, rights, obligations or securities to the
Parent Company. These restrictions are subject to a number of important
exceptions, including the ability of the Subsidiaries to: (i) declare or pay
cash dividends to the Parent Company in an aggregate amount equal to 50% of the
net income of the Company arising after December 31, 1996 and computed on a
cumulative basis (provided that no event of default exists after giving effect
to such action); (ii) declare and pay dividends to the Parent Company to be used
to pay taxes and other expenses of the Parent Company and the Subsidiaries on a
consolidated basis; and (iii) declare and pay dividends to the Parent Company to
enable the Parent Company to make regularly scheduled interest payments or the
payment of principal at maturity of any unsecured indebtedness issued by the
Parent Company (including the Notes and the Debentures (see Note 3)), the
proceeds of which are applied to the prepayment of the revolving loans, in each
case (a) has no scheduled principal payments before April 18, 2004; (b) has no
guaranty obligation by the borrower under the revolving credit facility; and (c)
has terms and conditions which are acceptable to the principal lender under the
revolving credit facility. As of December 31, 1999, the Subsidiaries could have
paid up to approximately $125.7 million to the Parent Company under the
exception described in item (i) above.
S-7
<PAGE> 40
SCHEDULE II
TOWER AUTOMOTIVE, INC.
VALUATION AND QUALIFYING ACCOUNTS
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
EMPLOYEE FACILITY TOTAL
DESCRIPTION COST COST COST
- ----------- -------- -------- --------
<S> <C> <C> <C>
BALANCE, DECEMBER 31, 1996.................................. $ 1,589 $ 6,483 $ 8,072
Utilization................................................. (10,888) (2,943) (13,831)
Additional Provision........................................ 18,335 19,126 37,461
Change in Estimate.......................................... -- -- --
-------- -------- --------
BALANCE, DECEMBER 31, 1997.................................. 9,036 22,666 31,702
Utilization................................................. (5,402) (1,485) (6,887)
Additional Provision........................................ -- -- --
Change in Estimate.......................................... (10) (69) (79)
-------- -------- --------
BALANCE, DECEMBER 31, 1998.................................. 3,624 21,112 24,736
Utilization................................................. (5,229) (2,523) (7,752)
Additional Provision........................................ 8,732 5,439 14,171
Change in Estimate.......................................... (760) (10,226) (10,986)
-------- -------- --------
BALANCE, DECEMBER 31, 1999.................................. $ 6,367 $ 13,802 $ 20,169
======== ======== ========
</TABLE>
S-8
<PAGE> 1
EXHIBIT 10.43
[EXECUTION COPY]
===============================================================================
$1,075,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of August 23, 1999
among
R.J. TOWER CORPORATION,
TOWER ITALIA S.r.l.,
BANK OF AMERICA, NATIONAL ASSOCIATION,
as Agent,
and
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
Arranged By
BANC OF AMERICA SECURITIES, LLC
as Lead Arranger and Book Manager
===============================================================================
<PAGE> 2
TABLE OF CONTENTS
Section Page
ARTICLE I - DEFINITIONS AND INTERPRETATIONS 1
CERTAIN DEFINED TERMS 1
OTHER INTERPRETIVE PROVISIONS 1
ACCOUNTING MATTERS 3
CURRENCY EQUIVALENTS GENERALLY 3
ARTICLE II THE CREDITS 3
COMMITMENTS 4
Revolving Commitments 4
---------------------
Term A Loans 4
Italian Euro Term Loan 6
LOAN ACCOUNTS AND NOTES 6
The Loan Accounts 6
The Notes 6
PROCEDURE FOR BORROWING 7
CONVERSION AND CONTINUATION ELECTIONS 8
VOLUNTARY TERMINATION OR REDUCTION OF REVOLVING COMMITMENTS 9
OPTIONAL PREPAYMENTS 10
MANDATORY REDUCTION OF REVOLVING COMMITMENTS 10
REPAYMENT 11
The Revolving Credit 11
The Swingline 11
SCHEDULED TERM A REPAYMENTS 11
SCHEDULED ITALIAN EURO TERM REPAYMENTS 11
INTEREST 12
FEES 13
Facility Fees 13
Alternate Currency Subfacility Fees 13
COMPUTATION OF FEES AND INTEREST 13
PAYMENTS BY CREDIT PARTIES 13
PAYMENTS BY THE LENDERS TO THE AGENT 14
SHARING OF PAYMENTS, ETC. 15
SWINGLINE LOANS 15
LETTERS OF CREDIT 18
LETTER OF CREDIT SUBFACILITY 18
ISSUANCE, AMENDMENT AND RENEWAL OF LETTERS OF CREDIT 20
RISK PARTICIPATIONS, DRAWINGS AND REIMBURSEMENTS 22
REPAYMENT OF PARTICIPATIONS 24
ROLE OF THE LC ISSUERS 24
OBLIGATIONS ABSOLUTE 25
--------------------
<PAGE> 3
CASH COLLATERAL PLEDGE 26
LETTER OF CREDIT FEES 26
UNIFORM CUSTOMS AND PRACTICE 27
ALTERNATE CURRENCY ANNEX CONTROLS WHEN CONFLICT 27
ALTERNATE CURRENCY SUBFACILITY 27
GUARANTY AND PLEDGE AGREEMENTS 35
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY 35
TAXES 35
ILLEGALITY 37
INCREASED COSTS AND REDUCTION OF RETURN 38
FUNDING LOSSES 38
INABILITY TO DETERMINE RATES 39
RESERVES ON OFFSHORE RATE LOANS AND ALTERNATE CURRENCY LOANS 40
EXCHANGE CONTROLS 40
CERTIFICATES OF LENDING PARTY 40
SUBSTITUTION OF LENDERS 40
SURVIVAL 41
ARTICLE CONDITIONS PRECEDENT AND SUBSEQUENT 41
CONDITIONS OF RESTATEMENT 41
Credit Agreement and Notes 41
Resolutions; Incumbency 41
Organization Documents; Good Standing 42
Legal Opinions 42
Payment of Fees 42
Guaranties 42
Certificate 42
Lien Searches 43
-------------
Other Documents 43
CONDITIONS TO CONVERSION OF TERM A DOLLAR LOANS TO TERM A EURO LOANS 43
Notice of Conversion 43
Approved Foreign Subsidiary Borrower Documents 44
CONDITIONS TO ALL CREDIT EXTENSIONS AND CONTINUATIONS/CONVERSIONS 45
Notice of Borrowing, Letter of Credit Related Document or
Conversion/Continuation 45
Continuation of Representations and Warranties 45
No Existing Default 45
ARTICLE REPRESENTATIONS AND WARRANTIES 45
CORPORATE EXISTENCE AND POWER 46
CORPORATE AUTHORIZATION; NO CONTRAVENTION 46
GOVERNMENTAL AUTHORIZATION 46
BINDING EFFECT 47
<PAGE> 4
LITIGATION 47
NO DEFAULT 47
ERISA COMPLIANCE 47
USE OF PROCEEDS; MARGIN REGULATIONS 48
TITLE TO PROPERTIES 48
TAXES 48
FINANCIAL CONDITION 48
ENVIRONMENTAL MATTERS 49
REGULATED ENTITIES 50
COPYRIGHTS, PATENTS, TRADEMARKS AND LICENSES, ETC. 50
SUBSIDIARIES 50
INSURANCE 50
SOLVENCY 51
FULL DISCLOSURE 51
ARTICLE AFFIRMATIVE COVENANTS 51
FINANCIAL STATEMENTS 51
CERTIFICATES; OTHER INFORMATION 52
NOTICES 52
PRESERVATION OF CORPORATE EXISTENCE, ETC. 54
MAINTENANCE OF PROPERTY 54
INSURANCE 55
PAYMENT OF OBLIGATIONS 55
COMPLIANCE WITH LAWS 55
COMPLIANCE WITH ERISA 55
INSPECTION OF PROPERTY AND BOOKS AND RECORDS 56
ENVIRONMENTAL LAWS 56
USE OF PROCEEDS 56
FURTHER ASSURANCES 56
YEAR 2000 57
ARTICLE NEGATIVE COVENANTS 57
LIMITATION ON LIENS; NEGATIVE PLEDGE 57
DISPOSITION OF ASSETS 59
CONSOLIDATIONS AND MERGERS 60
LOANS AND INVESTMENTS 61
LIMITATION ON INDEBTEDNESS 62
TRANSACTIONS WITH AFFILIATES 63
USE OF PROCEEDS 63
CONTINGENT OBLIGATIONS 64
JOINT VENTURES 64
LEASE OBLIGATIONS 65
RESTRICTED PAYMENTS 65
ERISA 66
CHANGE IN BUSINESS 66
<PAGE> 5
ACCOUNTING CHANGES 66
FINANCIAL CONDITION 66
LIMITATIONS ON NEGATIVE PLEDGES 67
ARTICLE EVENTS OF DEFAULT 68
EVENT OF DEFAULT 68
Non-Payment 68
Representation or Warranty 68
Specific Defaults 68
Other Defaults 68
Cross-Default 68
Insolvency; Voluntary Proceedings 69
Involuntary Proceedings 69
ERISA 70
Monetary Judgments 70
Non-Monetary Judgments 70
Change of Control 70
Guarantor or Pledgor Defaults 70
REMEDIES 70
SPECIFIED SWAP CONTRACT REMEDIES 71
RIGHTS NOT EXCLUSIVE 71
ARTICLE THE AGENT 71
APPOINTMENT AND AUTHORIZATION; "AGENT\ 71
DELEGATION OF DUTIES 72
LIABILITY OF AGENT 72
RELIANCE BY AGENT 72
NOTICE OF DEFAULT 73
CREDIT DECISION 73
INDEMNIFICATION OF AGENT 74
AGENT IN INDIVIDUAL CAPACITY 74
SUCCESSOR AGENT 75
WITHHOLDING TAX 75
CO-AGENTS 76
ARTICLE MISCELLANEOUS 77
AMENDMENTS AND WAIVERS 77
NOTICES 78
NO WAIVER; CUMULATIVE REMEDIES 78
COSTS AND EXPENSES 79
INDEMNIFICATION 79
General 79
Environmental 80
MARSHALLING; PAYMENTS SET ASIDE 81
SUCCESSORS AND ASSIGNS 81
<PAGE> 6
ASSIGNMENTS, PARTICIPATIONS, ETC. 81
CONFIDENTIALITY 83
SET-OFF 84
AUTOMATIC DEBITS OF FEES 85
NOTIFICATION OF ADDRESSES, LENDING OFFICES, ETC. 85
COUNTERPARTS 85
SEVERABILITY 85
NO THIRD PARTIES BENEFITED 85
GOVERNING LAW AND JURISDICTION 85
WAIVER OF JURY TRIAL 86
ENTIRE AGREEMENT 86
JUDGMENT CURRENCY 87
<PAGE> 7
SCHEDULES
Schedule 1.1 - Defined Terms
Schedule 2.1 - Commitments
Schedule 2.9 - Pricing Grid
Schedule 2.16 - Existing Letters of Credit
Schedule 5.5 - Litigation
Schedule 5.7 - ERISA
Schedule 5.11 - Permitted Liabilities
Schedule 5.12 - Environmental Matters
Schedule 5.15 - Subsidiaries and Minority Interests
Schedule 5.16 - Insurance Matters
Schedule 7.1 - Permitted Liens
Schedule 7.2 - Permitted Dispositions
Schedule 7.4 - Permitted Investments
Schedule 7.5(c) - Permitted Indebtedness
Schedule 7.8 - Contingent Obligations
Schedule 10.2 - Lending Offices; Addresses for Notices
EXHIBITS
Exhibit A - Form of Notice of Borrowing
Exhibit B - Form of Notice of Conversion/Continuation
Exhibit C - Form of Compliance Certificate
Exhibit D-1 - Form of Legal Opinion of Company's
Special Michigan Counsel
Exhibit D-2 - Form of Legal Opinion of Company's Special
New York Counsel
Exhibit E - Form of Assignment and Acceptance
Exhibit F-1 - Form of Revolving Note
Exhibit F-2 - Form of Swingline Note
Exhibit F-3 - Form of Term A Dollar Note
Exhibit F-4 - Form of Term A Euro Note
Exhibit F-5 - Form of Italian Euro Term Note
Exhibit G - Form of Guaranty
Exhibit H - Form of Pledge Agreement
Exhibit I - Form of Alternate Currency Annex
Exhibit J - Form of Notice of Euro Conversion
<PAGE> 8
AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT (this "Agreement") is entered
into as of August 23, 1999, among R.J. TOWER CORPORATION, a Michigan corporation
(the "Company"), TOWER ITALIA S.r.l., a corporation organized under the laws of
Italy (the "Italian Borrower"), the several financial institutions from time to
time party to this Agreement (collectively, the "Lenders"; individually, a
"Lender"), BANK OF AMERICA, NATIONAL ASSOCIATION, MILANO BRANCH (the "Italian
Euro Term Lender"), BANK OF AMERICA, NATIONAL ASSOCIATION, as agent for the
Lenders (in such capacity, the "Agent"), and The Bank of Nova Scotia, The Chase
Manhattan Bank, Comerica Bank, First Bank National Association and Bank One,
Michigan, as co-agents.
WHEREAS, on April 18, 1997, the Company, the Agent and various financial
institutions entered into a Credit Agreement providing for a revolving credit
facility of $750,000,000 which agreement was amended by that certain Amendment
No. 1 dated as of July 22, 1997 and that certain Amendment No. 2 and Consent
dated as of October 3, 1997 (as amended, the "Original Credit Agreement").
WHEREAS, the parties hereto wish to further amend the Original Credit
Agreement to read as set forth in the Original Credit Agreement with the various
amendments to its terms as are set forth in the identical respective sections
set forth below.
NOW, THEREFORE, in consideration of the mutual agreements, provisions and
covenants contained herein, the parties hereto agree that the Original Credit
Agreement is hereby amended as set forth by the changes to each respective
section and exhibit or schedule set forth below as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
1.1 Certain Defined Terms. Unless the context otherwise clearly requires,
capitalized terms used in this Agreement and the other Credit Documents shall
have the respective meanings assigned thereto in Schedule 1.1.
1.2 Other Interpretive Provisions. (a)(1) The meanings of defined
terms are equally applicable to the singular and plural forms of the defined
terms.
(ii) The words "hereof," "herein," "hereunder" and similar words
refer to this Agreement as a whole and not to any particular provision of this
Agreement; and
-1-
<PAGE> 9
Section, Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(iii) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other writings,
however evidenced.
(b) (i) The term "including" is not limiting and means "including
without limitation."
(ii) In the computation of periods of time from a specified date to
a later specified date, the word "from" means "from and including"; the words
"to" and "until" each mean "to but excluding", and the word "through" means "to
and including."
(iii) The term "property" includes any kind of property or asset,
real, personal or mixed, tangible or intangible.
(iv) The captions and headings of this Agreement are for
convenience of reference only and shall not affect the interpretation of this
Agreement. (c) Unless the context otherwise clearly requires, (i) references to
agreements (including this Agreement) and other contractual instruments shall be
deemed to include all subsequent amendments and other modifications thereto, but
only to the extent such amendments and other modifications are not prohibited by
the terms of any Credit Document, (ii) references to any statute or regulation
are to be construed as including all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting the statute or
regulation, (iii) references to any Person shall be deemed to include such
Person's successors and assigns, but only to the extent such succession or
assignment is not prohibited by the terms of any Credit Document, and (iv)
reference to a Person in a particular capacity shall be deemed to exclude such
Person in any other capacity or individually.
(d) If there is any conflict between this Agreement and any other Credit
Document, this Agreement and such other Credit Document shall be construed and
interpreted, if possible, to avoid or minimize such conflict, but to the extent
of any remaining conflict this Agreement shall prevail and control.
(e) This Agreement and the other Credit Documents may use several different
limitations, tests or measurements to regulate the same or similar matters. All
such limitations, tests and measurements are cumulative and shall each be
performed in accordance with their terms.
(f) This Agreement and the other Credit Documents are the result of
negotiations among and have been reviewed by counsel to the Agent, the Company
and
-2-
<PAGE> 10
the other parties, and are the products of all parties. Accordingly, they
shall not be construed against the Lending Parties or the Agent merely because
of the Agent's or Lending Parties' involvement in their preparation.
(g) All references to the Original Credit Agreement in this Agreement and
the other Credit Documents shall be deemed to be references to this Agreement as
hereby amended.
1.3 Accounting Matters.
(a) Unless the context otherwise clearly requires, all accounting terms not
expressly defined herein shall be construed, and all financial computations
required under this Agreement shall be made, in accordance with GAAP,
consistently applied; provided that all computations determining compliance with
Article VII, including the definitions used therein, shall utilize accounting
principles and policies in effect at the time of the preparation of, and in
conformity with those used to prepare the December 31, 1998 financial statements
delivered to the Agent and described in Section 5.11, but shall not give effect
to purchase accounting adjustments required or permitted by APB 16 and APB 17 or
interpretations thereof.
In addition, if after the date hereof there is any change in GAAP which
either the Required Lenders, the Required Term Lenders or the Company determines
has an adverse effect upon the utility of financial covenants or other
provisions as a measure of the Company's financial condition or operating
performance, then for a period of thirty (30) days following notice (x) in the
case of the Company, to the Agent and (y) in the case of the Required Lenders,
or the Required Term Lenders from the Agent to the Company, the parties shall
negotiate in good faith regarding appropriate amendments to this Agreement to
eliminate the effect of such change; provided that, if no such agreement is
reached within such period, GAAP shall mean GAAP as in effect immediately prior
to the effectiveness of such change.
(b) References herein to "fiscal year" and "fiscal quarter" refer to such
fiscal periods of the Company; and references to a particular fiscal year (for
example, the 1997 fiscal year) shall be deemed to refer to the fiscal year
ending in such specified calendar year.
1.4 Currency Equivalents Generally. For all purposes of this Agreement (but
not for purposes of the preparation of any financial statements delivered
pursuant hereto), the equivalent in any Alternate Currency or other currency of
an amount in Dollars, and the equivalent in Dollars of an amount in any
Alternate Currency or other currency, shall be determined as set forth in the
definition of Dollar Equivalent.
ARTICLE II
THE CREDITS
-3-
<PAGE> 11
2.1 Commitments
(a) Revolving Commitments. Each Revolving Lender severally agrees, on the
terms and conditions set forth herein, to make loans in Dollars to the Company
(each such loan, a "Revolving Loan") from time to time on any Business Day
during the period from the Original Closing Date to the Commitment Termination
Date, in an aggregate amount not to exceed at any time outstanding such
Revolving Lender's Revolver Pro Rata Share of the Total Commitment Amount less
the Effective Amount of all outstanding Revolving Loans (after giving effect to
the Revolving Loans (including for purposes hereof Swingline Loans and Alternate
Currency Loans) made on such Business Day) less the Effective Amount of all
outstanding Letter of Credit Obligations (after giving effect to the Letters of
Credit Issued on such Business Day) plus the lesser of (x) the Effective Amount
of all Alternate Currency Loans supported by Alternate Currency Standby Letters
of Credit (after giving effect to the Alternate Currency Standby Letters of
Credit Issued on such Business Day) and (y) the Effective Amount of all Letter
of Credit Obligations with respect to Alternate Currency Standby Letters of
Credit (after giving effect to the Alternate Currency Standby Letters of Credit
Issued on such Business Day). The commitment of each Revolving Lender described
in this Section 2.1(a) is herein referred to as such Revolving Lender's
"Revolving Commitment" and, with respect to any Revolving Lender, means the
principal amount set forth opposite such Revolving Lender's name on Schedule 2.1
to the Original Credit Agreement (or as set forth in any applicable Assignment
and Acceptance Agreement) as such commitment may have been or may hereafter be
adjusted pursuant to the terms of this Agreement. Within the limits of each
Revolving Lender's Revolving Commitment, and subject to the other terms and
conditions hereof, the Company may borrow Revolving Loans under this Section
2.1, prepay under Section 2.6 and reborrow Revolving Loans under this Section
2.1.
(b) Term A Loans
(i) Term A Dollar Loans. Each Term A Dollar Lender, severally and for
itself alone, hereby agrees, on the terms and subject to the conditions
hereinafter set forth herein and to make a loan (each such loan, a "Term A
Dollar Loan" and collectively, the "Term A Dollar Loans") to the Company on the
Restatement Date in an aggregate principal amount equal to the Term A Dollar
Commitment of such Term A Dollar Lender. The Term A Dollar Loans (1) shall be
incurred by the Company pursuant to a single drawing, which shall be on the
Restatement Date, (2) shall be denominated in Dollars, (3) shall be made as Base
Rate Loans or Offshore Rate Loans, at the option of the Company, and, except as
hereinafter provided, may, at the option of the Company , be maintained as
and/or converted into Base Rate Loans or Offshore Rate Loans, provided, that all
Term A Dollar Loans made by the Term A Dollar Lenders pursuant to the same
Borrowing shall, unless otherwise specifically provided herein, consist entirely
of Term A Dollar Loans of the same Type, provided further, that, if the Company
elects to make the Term A Dollar Loans as Offshore Rate Loans on the Restatement
Date, it shall have executed and delivered an indemnity letter in form and
substance satisfactory to the
-4-
<PAGE> 12
Agent at least three Business Days prior to the Restatement Date indemnifying
each Term A Lender for its costs in the event the funds are not borrowed as
anticipated, and (4) shall not exceed for any Lender at the time of incurrence
thereof on the Restatement Date the Term A Dollar Commitment, if any, of such
Lender at such time. Each Term A Dollar Lender's Term A Dollar Commitment shall
expire immediately and without further action on the Restatement Date if the
Term A Dollar Loans are not made on the Restatement Date. No amount of a Term A
Dollar Loan which is repaid or prepaid by the Company may be reborrowed
hereunder.
(ii) Optional Conversion of Term A Dollar Loans to Term A Euro Loans.
Subject to the terms and conditions of this Agreement and provided that no
Default or Event of Default then exists, the Company shall have the option (the
"Euro Conversion Option") exercisable one time only, to convert not less than
$25,000,000 nor more than $100,000,000 of its then outstanding Term A Dollar
Loans to Term A Euro Loans and to designate a Foreign Subsidiary as the primary
obligor with respect to such Term A Euro Loans. The Company may elect to
exercise the Euro Conversion Option by written notice delivered to the Agent and
each Term A Dollar Lender in the form of a Notice of Euro Conversion at least
ten (10) Business Days prior to the requested Conversion Date which notice shall
specify (i) the aggregate Dollar amount of Term A Dollar Loans which the Company
desires to convert to Term A Euro Loans (the "Dollar Conversion Amount"), (ii)
the date which the Company desires such conversion to be effective which shall
be a Business Day not less than ten (10) Business Days after the date such
notice is given, (iii) the duration of the requested Interest Period for such
Loans and (iv) if the Company desires to assign its Obligations with respect to
such Term A Euro Loans to an Approved Foreign Subsidiary Borrower, the name of
such Approved Foreign Subsidiary Borrower. On the date which is two (2) Business
Days prior to the Euro Conversion Date, the Agent shall notify the Company and
each Term A Lender of the amount of Euro which is equivalent to the aggregate
Dollar amount of Term A Loans requested to be so converted based on the Spot
Rate on the date which is two Business Days prior to the Euro Conversion Date.
On the Euro Conversion Date, each Term A Dollar Lender, severally and for itself
alone, hereby agrees, on the terms and subject to the conditions hereinafter set
forth herein, to convert a portion of its Term A Dollar Loan to a Term A Euro
Loan in an aggregate principal amount equal to its Term A Dollar Pro Rata Share
of the aggregate amount of Term A Euro Loans requested by the Company (each such
loan, a "Term A Euro Loan" and collectively, the "Term A Euro Loans") and, with
respect to such Loan, each such Lender shall be a Term A Euro Lender. The Term A
Euro Loans (1) shall be incurred by the Company or the Approved Foreign
Subsidiary Borrower, as the case may be, pursuant to the Euro Conversion Option
on the Euro Conversion Date, (2) shall be denominated in Euro and (3) shall be
continued as Offshore Rate Loans, provided, that all Term A Euro Loans made by
the Term A Euro Lenders pursuant to the same Borrowing shall, unless otherwise
specifically provided herein, consist entirely of Term A Euro Loans of the same
Type. No amount of a Term A Euro Loan which is repaid or prepaid by the Company
or the Approved Foreign Subsidiary Borrower, as the case may be, may be
reborrowed hereunder.
-5-
<PAGE> 13
(c) Italian Euro Term Loan. The Italian Euro Term Lender hereby agrees, on
the terms and subject to the conditions hereinafter set forth herein, to make a
loan (the "Italian Euro Term Loan") to the Italian Borrower on the Italian Euro
Term Loan Closing Date in an aggregate principal amount equal to the Italian
Euro Term Commitment. The Italian Euro Term Loan (1) shall be incurred by the
Italian Borrower pursuant to a single drawing, which shall be on the Italian
Euro Term Loan Closing Date, (2) shall be denominated in Euro, (3) shall be made
and continued as an Offshore Rate Loan, and (4) shall not exceed the Italian
Euro Term Commitment of the Italian Euro Term Lender. The Italian Euro Term
Lender's Italian Euro Term Commitment shall expire immediately and without
further action on the close of business on September 30, 1999 if the conditions
set forth in Section 4.3 have not been satisfied prior to such time. No amount
of Italian Euro Term Loan which is repaid or prepaid by the Italian Borrower may
be reborrowed hereunder.
2.2 Loan Accounts and Notes.
(a) The Loan Accounts. The Loans made by each Lender shall be evidenced by
one or more loan accounts or records maintained by such Lender in the ordinary
course of business. The loan accounts or records reasonably maintained by the
Agent and each Lender shall be conclusive absent manifest error of the amount of
the Loans made by the Lenders to the Company and the interest and payments
thereon. Any failure so to record or any error in doing so shall not, however,
limit or otherwise affect the obligation of the Company hereunder to pay any
amount owing with respect to the Loans.
(b) The Notes.
(i) Upon the request of any Lender made through the Agent, the Loans made
by such Lender may be evidenced by one or more Notes in addition to loan
accounts. Each such Lender shall endorse on the schedules annexed to its Note(s)
the date, amount and maturity of each Loan made by it and the amount of each
payment of principal made by the Company with respect thereto. Each such Lender
is irrevocably authorized by the Company to endorse its Note(s) and each
Lender's record shall be conclusive absent manifest error; provided that the
failure of a Lender to make, or an error in making, a notation thereon with
respect to any Loan shall not limit or otherwise affect the obligations of the
Company hereunder or under any Note to such Lender.
(ii) All Swingline Loans shall be evidenced by a Swingline Note of the
Company payable to the Agent for the account of the Swingline Lender in an
amount equal to the Swingline Commitment Amount on demand. The Agent is
irrevocably authorized by the Company to endorse on the schedules attached to
the Swingline Note (and any continuations thereof) the date, amount and maturity
of each Swingline Loan evidenced thereby and each payment of principal by the
Company with respect thereto and such record shall be conclusive absent manifest
error; provided that the failure to make, or error in making, a notation thereon
with respect to any Swingline Loan shall not
-6-
<PAGE> 14
limit or otherwise affect the obligations of the Company hereunder or under such
Swingline Note with respect to such Swingline Loan. The Agent will hold the
Swingline Note and will make the Swingline Note available for inspection by the
Company or any Lender during normal business hours upon prior reasonable notice
to the Agent therefor.
(iii) The Alternate Currency Loans with respect to a particular
Alternate Currency shall not be evidenced by notes unless otherwise indicated in
the Alternate Currency Annex for such Alternate Currency.
2.3 Procedure for Revolving Loan Borrowing.
(a) Each Borrowing of Revolving Loans shall be made upon the Company's
irrevocable (except in the circumstances described in Section 3.2, 3.3 or 3.5 as
provided therein) written notice delivered to the Agent in the form of a Notice
of Borrowing (which notice must be received by the Agent prior to 10:00 a.m.
(Chicago time) (i) three Business Days prior to the requested Borrowing Date, in
the case of Offshore Rate Loans; and (ii) one Business Day prior to the
requested Borrowing Date, in the case of Base Rate Loans, specifying:
(A) the amount of the Borrowing, which in the case of Base Rate Loans
made other than pursuant to Section 2.16.3(c) or 2.17(e) shall be in an
aggregate minimum amount of $1,000,000 or any multiple of $100,000 in excess
thereof, and in the case of Offshore Rate Loans shall be in an aggregate minimum
amount of $2,000,000 or any multiple of $100,000 in excess thereof;
(B) the requested Borrowing Date, which shall be a Business Day;
(C) the Type of Loans comprising the Borrowing; and
(D) in the case of Offshore Rate Loans, the duration of the Interest
Period applicable to such Loans included in such notice. If the Notice of
Borrowing fails to specify the duration of the Interest Period for any Borrowing
comprised of Offshore Rate Loans, such Interest Period shall be one month.
(b) The Agent will promptly notify each Lender of its receipt of any Notice
of Borrowing and of the amount of such Lender's Revolver Pro Rata Share of that
Borrowing.
(c) Each Revolving Lender will make the amount of its Revolver Pro Rata
Share of each Borrowing available to the Agent for the account of the Company at
the Agent's Payment Office by 10:00 a.m. (Chicago time) on the Borrowing Date
requested by the Company in funds immediately available to the Agent. The
proceeds of all such Loans will then be made available to the Company by the
Agent at such office by crediting the account of the Company on the books of
BofA with the aggregate of the
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<PAGE> 15
amounts made available to the Agent by the Revolving Lenders and in like funds
as received by the Agent.
(d) After giving effect to any Borrowing, unless the Agent shall otherwise
consent, there may not be more than twelve different Interest Periods in effect.
(e) If there is any conflict between this Section 2.3 and any applicable
Alternate Currency Annex, this Section 2.3 and such Alternate Currency Annex
shall be construed and interpreted, if possible, to avoid or minimize such
conflict, but to the extent of any remaining conflict such Alternate Currency
Annex shall prevail and control with respect to any Alternate Currency Loan
subject thereto.
2.4 Conversion and Continuation Elections.
(a) The Company may, upon irrevocable (except in the circumstances
described in Section 3.2, 3.3 or 3.5 as provided therein) written notice to the
Agent in accordance with Section 2.4(b):
(i) elect, as of the last day of the applicable Interest Period, to
convert any Offshore Rate Loans denominated in Dollars (or any part thereof in
an amount not less than $2,000,000) into Base Rate Loans; or
(ii) elect, as of any Business Day, in the case of Base Rate Loans, or as
of the last day of an applicable Interest Period, in the case of Offshore Rate
Loans expiring on such last day, to (A) convert such Loans (or any part thereof
in an amount not less than the Dollar Equivalent of $2,000,000, or that is in an
integral multiple of the Dollar Equivalent of $100,000 in excess thereof) into
Offshore Rate Loans, or (B) if such Loans are Offshore Rate Loans, continue such
Loans (or any part thereof in an amount not less than the Dollar Equivalent of
$2,000,000, or that is in an integral multiple of the Dollar Equivalent of
$100,000 in excess thereof) as Offshore Rate Loans;
provided that if, at any time the aggregate amount of Offshore Rate Loans in
respect of any Borrowing is reduced, by payment, prepayment, or conversion of
part thereof to be less than $2,000,000, such Offshore Rate Loans shall, (y) in
the case of Dollar denominated Loans, automatically convert into Base Rate
Loans, and on and after such date the right of the Company to continue such
Loans as, and convert such Loans into, Offshore Rate Loans shall terminate and
(z) in the case of non-Dollar denominated Loans, automatically convert to
Offshore Rate Loans with an interest period of one month and on and after such
date the right of the Company to continue such Loans, as Offshore Rate Loans,
with an interest period longer than one month shall terminate.
(b) The Company shall deliver a Notice of Conversion/ Continuation to be
received by the Agent not later than 10:00 a.m. (Chicago time) at least (i)
three Business Days in advance of the Conversion/ Continuation Date, if the
Loans are to be converted
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into or continued as Offshore Rate Loans; (ii) one Business Day in advance of
the Conversion/Continuation Date, if the Loans are to be converted into Base
Rate Loans, specifying:
(1) the proposed Conversion/Continuation Date;
(2) the aggregate amount of Loans to be converted or continued;
(3) the Type of Loans resulting from the proposed conversion or
continuation; and
(4) other than in the case of conversions into Base Rate Loans, the
duration of the requested Interest Period.
(c) If, upon the expiration of any Interest Period applicable to Offshore
Rate Loans, the Company has failed to select timely a new Interest Period to be
applicable to such Offshore Rate Loans or if any Event of Default then exists,
the Company shall be deemed to have elected to convert such Offshore Rate Loans
denominated in Dollars into Base Rate Loans and such Offshore Rate Loans which
are not denominated in Dollars into Offshore Rate Loans with an interest period
of one month, in each case, effective as of the expiration date of such Interest
Period.
(d) The Agent will promptly notify each Lender of its receipt of a Notice
of Conversion/Continuation, or, if no timely notice is provided by the Company,
the Agent will promptly notify each Lender of the details of any automatic
conversion. All conversions and continuations shall be made ratably according to
the respective outstanding principal amounts of the Loans with respect to which
the notice was given held by each Lender.
(e) Unless the Required Lenders and the Required Term Lenders otherwise
consent, during the existence of an Event of Default, the Company may not elect
to have a Loan denominated in Dollars converted into or continued as an Offshore
Rate Loan.
(f) After giving effect to any conversion or continuation of Loans, unless
the Agent shall otherwise consent, there may not be more than twelve different
Interest Periods in effect.
2.5 Voluntary Termination or Reduction of Revolving Commitments. The
Company may, upon not less than three Business Days' prior notice to the Agent
(which shall give notice thereof to the Lending Parties), terminate the
Revolving Commitments, or permanently reduce the Revolving Commitments by an
aggregate minimum amount of $5,000,000 or any multiple of $1,000,000 in excess
thereof; unless, after giving effect thereto and to any prepayments of relevant
Loans made on the effective date thereof, the Effective Amount of all
outstanding Revolving Loans (including for purposes hereof the
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Swingline Loans and Alternate Currency Loans) plus the Effective Amount of all
outstanding Letter of Credit Obligations minus the lesser of (x) the Effective
Amount of all Alternate Currency Loans supported by Alternate Currency Standby
Letters of Credit and (y) the Effective Amount of all Letter of Credit
Obligations with respect to Alternate Currency Standby Letters of Credit, would
exceed the amount of the Revolving Commitments then in effect. Once reduced in
accordance with this Section 2.5, the Revolving Commitments may not be
increased. Any reduction of the Revolving Commitments shall be applied to each
Revolving Lender according to its Revolver Pro Rata Share. All accrued
commitment fees to the effective date of any reduction or termination of the
Revolving Commitments shall be paid on the effective date of such reduction or
termination.
2.6 Optional Prepayments. Subject to Section 3.4, the Company or the
applicable borrower hereunder may, at any time or from time to time, and in the
case of Offshore Rate Loans upon not less than three Business Days' irrevocable
notice to the Agent, ratably prepay Loans in whole or in part, in minimum
amounts of $1,000,000 and a multiple of $100,000 in excess thereof in the case
of any prepayment of Offshore Rate Loans, and a minimum amount of $500,000 in
the case of any prepayment of Base Rate Loans. Such notice of prepayment shall
specify the date and amount of such prepayment and the Type(s) of Loans to be
prepaid. The Agent will promptly notify each Lender of its receipt of any such
notice, and of such ratable share of such prepayment. If such notice is given by
the Company, the Company shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified therein
and, in the case of any prepayment of Offshore Rate Loans together with accrued
interest to each such date on the amount prepaid and any amounts required
pursuant to Section 3.4. Any optional prepayment of the Term A Loans or the
Italian Euro Term Loans shall be applied to the Scheduled Term A Dollar
Repayments, the Scheduled Term A Euro Repayments, or the Scheduled Italian Euro
Term Repayments, as the case may be, in the inverse order of maturity, provided
that for purposes of optional prepayments, the Term A Dollar Loans, the Italian
Euro Term Loans and the Term A Euro Loans, if any, shall be treated as a single
facility with any optional prepayment to any of such Facilities applied in a
manner (as directed by the Company) such that each Lender's ratable share of the
aggregate Dollar Equivalent of such Facilities is unchanged after giving effect
to such prepayment or prepayments.
2.7 Mandatory Reduction of Revolving Commitments. On each anniversary of
the Original Closing Date set forth below, the Total Commitment Amount shall be
automatically and permanently reduced to the respective maximum amount set forth
opposite such anniversary (unless theretofore reduced under Section 2.5 to a
lesser amount):
Anniversary of Original Maximum Amount
Closing Date
Third $675,000,000
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<PAGE> 18
Fourth $600,000,000
Fifth $500,000,000
On each such date when a reduction in the Total Commitment Amount becomes
effective, the Company shall make a mandatory payment of all Revolving Loans
equal to the excess, if any, of the aggregate outstanding principal amount of
all Revolving Loans over the Total Commitment Amount as so reduced minus the
Effective Amount of all Letter of Credit Obligations minus the Effective Amount
of all Swingline Loans minus the Effective Amount of all Alternate Currency
Loans plus the lesser of (x) the Effective Amount of all Alternate Currency
Loans supported by Alternate Currency Standby Letters of Credit and (y) the
Effective Amount of all Letter of Credit Obligations with respect to Alternate
Currency Standby Letters of Credit.
2.8 Repayment.
(a) The Revolving Credit. The Company shall repay to the Revolving Lenders
on the Commitment Termination Date the aggregate principal amount of Revolving
Loans outstanding on such date.
(b) The Swingline. The Company shall repay the Swingline Loans on demand.
(c) Scheduled Term A Repayments. The Company shall cause to be paid
Scheduled Term A Repayments on the Term A Loans until the Term A Loans are paid
in full in the amounts and currencies and at the times specified in the
definition of Scheduled Term A Repayments to the extent that prepayments have
not previously been applied to such Scheduled Term A Repayments (and such
Scheduled Term A Repayments have not otherwise been reduced) pursuant to the
terms hereof. Payments to be made pursuant to this Section 2.8(c) with respect
to (i) Term A Dollar Loans shall be paid in Dollars and (ii) Term A Euro Loans
shall be paid in Euros. The Company shall repay to the Term A Lenders the
aggregate remaining principal amount of Term A Loan outstanding on the Term A
Loan Maturity Date.
(d) Scheduled Italian Euro Term Repayments. The Italian Borrower shall
cause to be paid Scheduled Italian Euro Term Repayments on the Italian Euro Term
Loan until the Italian Euro Term Loan is paid in full in the amounts and
currencies and at the times specified in the definition of Scheduled Italian
Euro Term Repayments to the extent that prepayments have not previously been
applied to such (and such Scheduled Italian Euro Term Repayments have not
otherwise been reduced) pursuant to the terms hereof. Payments to be made
pursuant to this Section 2.8(d) shall be paid in Euros. The Italian Borrower
shall repay to the Italian Euro Term Lender the aggregate remaining principal
amount of Italian Euro Term Loans outstanding on the Italian Euro Term Loan
Maturity Date.
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2.9 Interest.
(a) Each Revolving Loan shall bear interest on the outstanding principal
amount thereof from the applicable Borrowing Date at a rate per annum equal to
the Offshore Rate or the Base Rate, as the case may be (and subject to the
Company's right to convert to other Types of Revolving Loans under Section 2.4),
plus the Applicable Margin. Swingline Loans shall bear interest on the principal
amount thereof from the applicable Borrowing Date at a rate per annum equal to
the Quoted Rate.
(b) Each Term Loan shall bear interest on the outstanding principal amount
thereof from the Restatement Date, or Euro Conversion Date, as the case may be,
at a rate per annum equal to the Offshore Rate or the Base Rate, as the case may
be (and subject to the Company's right to convert to other Types of Term Loans
under Section 2.4), plus the Applicable Term Margin.
(c) Interest on each Loan (other than Alternate Currency Loans) shall be
paid in arrears on each Interest Payment Date. Interest shall also be paid on
the date of any prepayment or repayment of Offshore Rate Loans under Section 2.6
or 2.7 for the portion of the Loans so prepaid or repaid and upon payment
(including prepayment) in full thereof and, during the existence of any Event of
Default, interest shall be paid on demand of the Agent at the request of the
Required Lenders or the Required Term Lenders.
(d) Notwithstanding Section 2.9(a), upon notice to the Company by the Agent
at the request of the Required Lenders or the Required Term Lenders either (i)
while any Event of Default exists or (ii) after acceleration, the Company shall
pay interest (after as well as before entry of judgment thereon to the extent
permitted by law) on the principal amount of all outstanding Obligations, at a
rate per annum which is determined by adding 2% per annum to the Applicable
Margin or the Applicable Term Margin, as the case may be, then in effect for
such Loans plus the Offshore Rate or Base Rate (as applicable) and, in the case
of Obligations not subject to an Applicable Margin, at a rate per annum equal to
the Base Rate plus 2%; provided that, on and after the expiration of any
Interest Period applicable to any Offshore Rate Loan outstanding on the date of
such notice, the principal amount of such Loan shall, during the continuation of
such Event of Default or after acceleration, bear interest at a rate per annum
equal to the Base Rate plus the Applicable Margin or the Applicable Term Margin,
as the case may be, plus 2%.
(e) Anything herein to the contrary notwithstanding, the obligations of the
Company to any Lender hereunder shall be subject to the limitation that payments
of interest shall not be required for any period for which interest is computed
hereunder, to the extent (but only to the extent) that contracting for or
receiving such payment by such Lender would be contrary to the provisions of any
law applicable to such Lender limiting the highest rate of interest that may be
lawfully contracted for, charged or received by
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<PAGE> 20
such Lender, and in such event the Company shall pay such Lender interest at the
highest rate permitted by applicable law.
2.10 Fees.
(a) Facility Fees. The Company shall pay to the Agent for the account of
each Lender a facility fee on the daily average of such Lender's Revolving
Commitment (whether used or unused), computed on a quarterly basis in arrears on
the last Business Day of each calendar quarter equal to the Applicable Facility
Fee per annum from time to time in effect. Such facility fee shall accrue from
the Original Closing Date to the Commitment Termination Date and shall be due
and payable quarterly in arrears on the last Business Day of each calendar
quarter commencing on the first such quarterly date to occur following the
Original Closing Date through the Commitment Termination Date, with the final
payment to be made on the Commitment Termination Date; provided that, in
connection with any reduction or termination of Revolving Commitments under
Section 2.5 or 2.7, the accrued facility fee calculated for the period ending on
such date shall also be paid on the date of such reduction or termination, with
the following quarterly payment being calculated on the basis of the period from
such reduction or termination date to such quarterly payment date. The facility
fees provided in this Section 2.10(b) shall accrue at all times after the
above-mentioned commencement date, including at any time during which one or
more conditions in Article IV are not met.
(b) Alternate Currency Subfacility Fees. The Company shall pay to each
applicable Alternate Currency Lender and Alternate Currency LC Issuer the fees,
if any, set forth in the applicable Alternate Currency Annex.
2.11 Computation of Fees and Interest.
(a) All computations of interest for Base Rate Loans when the Base Rate is
determined by BofA's "reference rate" shall be made on the basis of a year of
365 or 366 days, as the case may be, and actual days elapsed. All other
computations of fees and interest shall be made on the basis of a 360-day year
and actual days elapsed (which results in more interest being paid than if
computed on the basis of a 365-day year). Interest and fees shall accrue during
each period during which interest or such fees are computed from the first day
thereof to the last day thereof.
(b) Each reasonable determination of an interest rate or a Dollar
Equivalent by the Agent shall be conclusive and binding on the Credit Parties
and the Lending Parties in the absence of manifest error.
2.12 Payments by Credit Parties.
(a) All payments to be made by any Credit Party shall be made without
set-off, recoupment or counterclaim. Except as otherwise expressly provided
herein, all
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<PAGE> 21
payments by any Credit Party shall be made to the Agent for the account of the
Lending Parties at the Agent's Payment Office, and shall be made in Dollars and
in immediately available funds, no later than 1:00 p.m. (Chicago time) on the
date specified herein provided that all payments with respect to the Term A Euro
Loan and the Italian Euro Term Loan shall be in Euro and all payments with
respect to the Italian Euro Term Loan shall be made to the Italian Euro Term
Lender's Payment Office. The Agent will promptly distribute to each Lender its
Revolver Pro Rata Share or Term A Dollar Pro Rata Share or Term A Euro Pro Rata
Share or to the extent not paid directly to the Italian Euro Term Lender Italian
Euro Term Pro Rata Share, as the case may be, (or other applicable share as
expressly provided herein) of such payment in like funds as received. Any
payment received by the Agent later than 1:00 p.m. (Chicago time) shall be
deemed to have been received on the following Business Day and any applicable
interest or fee shall continue to accrue.
(b) Subject to the provisions set forth in the definition of "Interest
Period" herein, whenever any payment is due on a day other than a Business Day,
such payment shall be made on the following Business Day, and such extension of
time shall in such case be included in the computation of interest or fees, as
the case may be.
(c) Unless the Agent receives notice from the Company prior to the date on
which any payment is due to the Lenders that the Company will not make such
payment in full as and when required, the Agent may assume that the Company has
made such payment in full to the Agent on such date in immediately available
funds and the Agent may (but shall not be so required), in reliance upon such
assumption, distribute to each Lender on such due date an amount equal to the
amount then due such Lender. If and to the extent the Company has not made such
payment in full to the Agent, each Lender shall repay to the Agent on demand
such amount distributed to such Lender, together with interest thereon at the
Federal Funds Rate for each day from the date such amount is distributed to such
Lender until the date repaid.
2.13 Payments by the Lenders to the Agent.
(a) Unless the Agent receives notice from a Lender on or prior to the
Original Closing Date or, with respect to any Borrowing after the Original
Closing Date, at least one Business Day prior to the date of such Borrowing,
that such Lender will not make available as and when required hereunder to the
Agent for the account of the Company the amount of that Lender's Revolver Pro
Rata Share (or, in the case of Term Loans its Term A Dollar Pro Rata Share, Term
A Euro Pro Rata Share, or Italian Euro Term Pro Rata Share, as the case may be)
of the Borrowing, the Agent may assume that each Lender has made such amount
available to the Agent in immediately available funds on the Borrowing Date and
the Agent may (but shall not be so required), in reliance upon such assumption,
make available to the Company on such date a corresponding amount. If and to the
extent any Lender shall not have made its full amount available to the Agent in
immediately available funds and the Agent in such circumstances has made
available
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<PAGE> 22
to the Company such amount, that Lender shall on the Business Day following such
Borrowing Date make such amount available to the Agent, together with interest
at the Federal Funds Rate (or in the case of non-Dollar denominated Loans, the
Agent's cost of funds with respect thereto) for each day during such period. A
notice of the Agent submitted to any Lender with respect to amounts owing under
this Section 2.13(a) shall be conclusive, absent manifest error. If such amount
is so made available, such payment to the Agent shall constitute such Lender's
Loan on the date of Borrowing for all purposes of this Agreement. If such amount
is not made available to the Agent on the Business Day following the Borrowing
Date, the Agent will notify the Company of such failure to fund and, upon demand
by the Agent, the Company shall pay such amount to the Agent for the Agent's
account, together with interest thereon for each day elapsed since the date of
such Borrowing, at a rate per annum equal to the interest rate applicable at the
time to the Loans comprising such Borrowing.
(b) The failure of any Lender to make any Loan on any Borrowing Date shall
not relieve any other Lender of any obligation hereunder to make a Loan on such
Borrowing Date, but no Lender shall be responsible for the failure of any other
Lender to make the Loan to be made by such other Lender on any Borrowing Date.
2.14 Sharing of Payments, etc. If, other than as expressly provided
elsewhere herein, any Lender shall obtain on account of the Obligations in its
favor any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) in excess of its ratable share (or other share
contemplated hereunder), such Lender shall immediately (a) notify the Agent of
such fact, and (b) purchase from the other Lenders such participations in the
Loans made by them as shall be necessary to cause such purchasing Lender to
share the excess payment pro rata with each of them; provided that if all or any
portion of such excess payment is thereafter recovered from the purchasing
Lender, such purchase shall to that extent be rescinded and each other Lender
shall repay to the purchasing Lender the purchase price paid therefor, together
with an amount equal to such paying Lender's ratable share (according to the
proportion of (i) the amount of such paying Lender's required repayment to (ii)
the total amount so recovered from the purchasing Lender) of any interest or
other amount paid or payable by the purchasing Lender in respect of the total
amount so recovered. The Company agrees that any Lender so purchasing a
participation from another Lender may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off, but subject
to Section 10.10) with respect to such participation as fully as if such Lender
were the direct creditor of the Company in the amount of such participation. The
Agent will keep records (which shall be conclusive and binding in the absence of
manifest error) of participations purchased under this Section 2.14 and will in
each case notify the Lenders following any such purchases or repayments.
2.15 Swingline Loans.
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<PAGE> 23
(a) Subject to the terms and conditions hereof, the Swingline Lender may,
in its sole discretion (subject to Section 2.15(b)), make swingline loans in
Dollars (each such loan, a "Swingline Loan") to the Company on any Business Day
during the period from the Original Closing Date to the Commitment Termination
Date in accordance with the procedures set forth in this Section 2.15 in an
aggregate principal amount at any one time outstanding not to exceed the lesser
of (x) the aggregate available amount of the Revolving Commitments and (y)
$25,000,000 (the "Swingline Commitment Amount"), notwithstanding the fact that
such Swingline Loans, when aggregated with the Swingline Lender's outstanding
Revolving Loans and its Revolver Pro Rata Share of Letter of Credit Obligations,
may exceed the Swingline Lender's Revolver Pro Rata Share of the aggregate
amount of the Revolving Commitments; provided that at no time shall the sum of
(i) the Effective Amount of all outstanding Revolving Loans (including for the
purposes hereof Swingline Loans and Alternate Currency Loans) plus (ii) the
Effective Amount of all Letter of Credit Obligations minus (iii) the lesser of
(x) the Effective Amount of all Alternate Currency Loans supported by Alternate
Currency Standby Letters of Credit and (y) the Effective Amount of all Letter of
Credit Obligations with respect to Alternate Currency Standby Letters of Credit
exceed the Total Commitment Amount. Subject to the other terms and conditions
hereof, the Company may borrow under this Section 2.15(a), prepay pursuant to
Section 2.15(d) and reborrow pursuant to this Section 2.15(a) from time to time;
provided that the Swingline Lender shall not be obligated to make any Swingline
Loan.
(b) The Company shall provide the Agent and the Swingline Lender
irrevocable written notice (or notice by a telephone call confirmed promptly by
facsimile) of any Swingline Loan requested hereunder (which notice must be
received by the Swingline Lender and the Agent prior to 2:30 p.m. (Chicago time)
on the requested Borrowing Date) specifying (i) the amount to be borrowed, and
(ii) the requested Borrowing Date, which must be a Business Day. Upon receipt of
such notice, the Swingline Lender will promptly confirm with the Agent (by
telephone or in writing) that the Agent has received a copy of such notice from
the Company and, if not, the Swingline Lender will provide the Agent with a copy
thereof. If and only if the Agent notifies the Swingline Lender on the proposed
Borrowing Date that it may make available to the Company the amount of the
requested Swingline Loan, then, subject to the terms and conditions hereof, the
Swingline Lender may make the amount of the requested Swingline Loan available
to the Company by crediting the account of the Company on the books of BofA with
the amount of such Swingline Loan. The Agent will not so notify the Swingline
Lender if the Agent has knowledge that (A) the limitations set forth in the
proviso set forth in the first sentence of Section 2.15(a) are being violated or
would be violated by such Swingline Loan or (B) one or more conditions specified
in Article IV is not then satisfied. Each Swingline Loan shall be in an
aggregate principal amount equal to $500,000 or a multiple of $100,000 in excess
thereof. The Swingline Lender will promptly notify the Agent of the amount of
each Swingline Loan.
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<PAGE> 24
(c) Principal of and accrued interest on each Swingline Loan shall be due
and payable (i) on demand made by the Swingline Lender at any time upon one
Business Day's prior notice to the Company furnished at or before 10:00 a.m.
(Chicago time), and (ii) in any event on the Commitment Termination Date.
Interest on Swingline Loans shall be for the sole account of the Swingline
Lender (except to the extent that the other Lenders have funded the purchase of
their respective participations therein pursuant to Section 2.15(e)).
(d) The Company may, from time to time on any Business Day, make a
voluntary prepayment, in whole or in part, of the outstanding principal amount
of any Swingline Loan, without incurring any premium or penalty; provided that
(i) each such voluntary prepayment shall require prior written notice
given to the Agent and the Swingline Lender no later than 10:00 a.m. (Chicago
time) on the day on which the Company intends to make a voluntary prepayment,
and
(ii) each such voluntary prepayment shall be in an amount equal to
$500,000 or a higher integral multiple of $100,000 (or, if less, the aggregate
outstanding principal amount of all Swingline Loans then outstanding).
Voluntary prepayments of Swingline Loans shall be made by the
Company to the Swingline Lender at such office as the Swingline Lender may
designate by notice to the Company from time to time. All such payments shall be
made in Dollars and in immediately available funds no later than 2:00 p.m.
(Chicago time) on the date specified by the Company pursuant to clause (i) above
(and any payment received later than such time shall be deemed to have been
received on the next Business Day). The Swingline Lender will promptly notify
the Agent of the amount of each prepayment of Swingline Loans.
(e) If (i) any Swingline Loan shall remain outstanding at 11:00 a.m.
(Chicago time) on the Business Day immediately prior to a Business Day on which
Swingline Loans are due and payable pursuant to Section 2.15(c) and by such time
on such Business Day the Agent shall have received neither (A) a Notice of
Borrowing delivered pursuant to Section 2.3 requesting that Revolving Loans be
made pursuant to Section 2.1 on such following Business Day in an amount at
least equal to the aggregate principal amount of such Swingline Loans, nor (B)
any other notice indicating the Company's intent to repay such Swingline Loans
with funds obtained from other sources, or (ii) any Swingline Loans shall remain
outstanding during the existence of a Default or Event of Default and the
Swingline Lender shall in its sole discretion notify the Agent that the
Swingline Lender desires that such Swingline Loans be converted into Revolving
Loans, then the Agent shall be deemed to have received a Notice of Borrowing
from the Company pursuant to Section 2.3 requesting that Base Rate Loans be made
pursuant to Section 2.1 on the following Business Day in an amount equal to the
aggregate amount of such Swingline Loans, and the procedures set forth in
Section 2.3(c) shall be followed in
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making such Base Rate Loans; provided that such Base Rate Loans shall be made
notwithstanding the Company's failure to comply with Section 4.2; and provided,
further, that if a Borrowing of Revolving Loans becomes legally impractical and
if so required by the Swingline Lender at the time such Revolving Loans are
required to be made by the Revolving Lenders in accordance with this Section
2.15(e), each Revolving Lender agrees that in lieu of making Revolving Loans as
described in this Section 2.15(e), such Revolving Lender shall purchase a
participation from the Swingline Lender in the applicable Swingline Loans in an
amount equal to such Lender's Revolver Pro Rata Share of such Swingline Loans,
and the procedures set forth in Section 2.3(c) shall be followed in connection
with the purchases of such participations. The proceeds of such Base Rate Loans
(or participations purchased) shall be delivered by the Agent to the Swingline
Lender to repay such Swingline Loans (or as payment for such participations). A
copy of each notice given by the Agent to the Revolving Lenders pursuant to this
Section 2.15(e) with respect to the making of Revolving Loans, or the purchases
of participations, shall be promptly delivered by the Agent to the Company. Each
Revolving Lender's obligation in accordance with this Agreement to make the
Revolving Loans, or purchase the participations, as contemplated by this Section
2.15(e), shall be absolute and unconditional and shall not be affected by any
circumstance, including (1) any set-off, counterclaim, recoupment, defense or
other right which such Lender may have against the Swingline Lender, the Company
or any other Person for any reason whatsoever; (2) the occurrence or continuance
of a Default, an Event of Default or a Material Adverse Effect; or (3) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing.
2.16 Letters of Credit.
2.16.1 Letter of Credit Subfacility.
(a) On the terms and conditions set forth herein (i) each LC Issuer agrees,
(A) from time to time on any Business Day during the period from the Original
Closing Date to the Commitment Termination Date to issue Letters of Credit for
the account of the applicable Account Party, and to amend or renew Letters of
Credit previously issued by it, in accordance with Sections 2.16.2(c) and
2.16.2(d), and (B) to honor properly drawn drafts under the Letters of Credit
issued by it; and (ii) the Revolving Lenders severally agree to participate in
Letters of Credit other than Alternate Currency Letters of Credit issued for the
account of such Account Party; provided that no LC Issuer shall be obligated to
issue, and no Lender shall be obligated to participate in, any Letter of Credit
if as of the date of issuance of such Letter of Credit (the "Issuance Date") (1)
the sum of (i) the Effective Amount of all Letter of Credit Obligations plus
(ii) the Effective Amount of all outstanding Revolving Loans (including for
purposes hereof the Swingline Loans and Alternate Currency Loans) minus (iii)
the lesser of (x) the Effective Amount of all Alternate Currency Loans supported
by Alternate Currency Standby Letters of Credit and (y) the Effective Amount of
all Letter of Credit Obligations with respect to Alternate Currency Standby
Letters of Credit exceeds the aggregate amount of all Revolving
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Commitments or (2) the Effective Amount of all Letter of Credit Obligations
exceeds the Letter of Credit Commitment Amount. The commitment of each LC Issuer
and each other Lender described in this Section 2.16.1 is herein referred to as
its "Letter of Credit Commitment." Within the foregoing limits, and subject to
the other terms and conditions hereof, the applicable Account Party's ability to
obtain Letters of Credit shall be fully revolving, and, accordingly, such
Account Party may, during the foregoing period, obtain Letters of Credit to
replace Letters of Credit which have expired or which have been drawn upon and
reimbursed.
(b) No LC Issuer shall be under any obligation to Issue any Letter of
Credit if:
(i) any order, judgment or decree of any Governmental Authority or
arbitrator shall by its terms purport to enjoin or restrain such LC Issuer from
Issuing such Letter of Credit, or any Requirement of Law applicable to such LC
Issuer or any request or directive (whether or not having the force of law) from
any Governmental Authority with jurisdiction over such LC Issuer shall prohibit,
or request that such LC Issuer refrain from, the Issuance of letters of credit
generally or such Letter of Credit in particular or shall impose upon such LC
Issuer with respect to such Letter of Credit any restriction, reserve or capital
requirement (for which such LC Issuer is not otherwise compensated hereunder)
not in effect on the Original Closing Date, or shall impose upon such LC Issuer
any unreimbursed loss, cost or expense which was not applicable on the Original
Closing Date and which such LC Issuer in good faith deems material to it; or
(ii) such Letter of Credit does not provide for drafts, or is not
otherwise in form and substance acceptable to such LC Issuer, or the Issuance of
such Letter of Credit shall violate any applicable policies of such LC Issuer,
provided that nothing in this clause (ii) shall release any LC Issuer form its
obligation to Issue any Standby Letter of Credit to support Existing IRBs having
the terms and conditions specified in the indenture governing such Existing
IRBs.
(c) No LC Issuer shall Issue any Letter of Credit if:
(i) such LC Issuer has received written notice from any Lender,
the Agent or the applicable Account Party, on or prior to the Business Day prior
to the requested date of Issuance of such Letter of Credit, that one or more of
the applicable conditions contained in Article IV is not then satisfied;
(ii) the expiry date or any renewed or extended expiry date of such
Letter of Credit is later than the earlier of: (x) in the case of Letters of
Credit other than Standby Letters of Credit supporting Existing IRBs, the first
anniversary of the Issuance Date for such Letter of Credit, and (y) the
Commitment Termination Date, or, in the case of a Commercial Letter of Credit,
25 days prior to the Commitment Termination Date, unless all of the Lenders have
approved such expiry date in writing; or
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(iii) such Letter of Credit is denominated in a currency other than
Dollars, unless such Letter of Credit is an Alternate Currency Letter of Credit.
2.16.2 Issuance, Amendment and Renewal of Letters of Credit.
(a) Each Letter of Credit shall be issued upon the irrevocable written
request of the applicable Account Party received by the applicable LC Issuer and
the Agent at least four Business Days (or such shorter time as such LC Issuer
and the Agent may agree in a particular instance in their sole discretion) prior
to the proposed Issuance Date. Each such request for issuance of a Letter of
Credit shall be by facsimile, confirmed immediately in an original writing, in
the form of a Letter of Credit Application, and shall specify in form and detail
reasonably satisfactory to the applicable LC Issuer: (i) the face amount of the
Letter of Credit; (ii) the expiry date of such Letter of Credit; (iii) the name
and address of the beneficiary thereof; (iv) the documents to be presented by
the beneficiary of such Letter of Credit in case of any drawing thereunder; (v)
the full text of any certificate to be presented by the beneficiary in case of
any drawing thereunder; (vi) in the case of a Standby Letter of Credit, whether
such Letter of Credit is a Financial Letter of Credit or a Non-Financial Letter
of Credit; and (vii) such other matters as such LC Issuer may require.
(b) At least two Business Days prior to the Issuance Date of any Letter
of Credit, the applicable LC Issuer will confirm with the Agent (by telephone or
in writing) that the Agent has received a copy of the Letter of Credit
Application or Letter of Credit Amendment Application from the applicable
Account Party and, if not, such LC Issuer will provide the Agent with a copy
thereof. If and only if the Agent notifies the applicable LC Issuer on or before
the Business Day immediately preceding the proposed date of Issuance of a Letter
of Credit that such LC Issuer may Issue such Letter of Credit, then, subject to
the terms and conditions hereof, such LC Issuer shall, on the requested date,
Issue such Letter of Credit for the account of the applicable Account Party in
accordance with such LC Issuer's usual and customary business practices. The
Agent shall not give such notice if the Agent has knowledge that (A) such
Issuance is not then permitted under Section 2.16.1(a) as a result of the
limitations set forth in clause (1) or (2) thereof or (B) the applicable LC
Issuer has received a notice described in Section 2.16.1(b)(ii). The Agent will
promptly notify the Lenders of any Letter of Credit Issuance hereunder.
(c) From time to time while a Letter of Credit is outstanding and
prior to the Commitment Termination Date, the applicable LC Issuer will, upon
the written request of the applicable Account Party received by such LC Issuer
(with a copy sent by such Account Party to the Agent) at least four Business
Days (or such shorter time as such LC Issuer and the Agent may agree in a
particular instance in their sole discretion) prior to the proposed date of
amendment, amend any Letter of Credit issued by it, subject to approval thereof
by the Agent. Each such request for amendment of a Letter of Credit shall be
made by facsimile, confirmed immediately in an original writing, made in the
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form of a Letter of Credit Amendment Application and shall specify in form and
detail reasonably satisfactory to the applicable LC Issuer: (i) the Letter of
Credit to be amended; (ii) the proposed date of amendment of such Letter of
Credit (which shall be a Business Day); (iii) the nature of the proposed
amendment; and (iv) such other matters as such LC Issuer may require. No LC
Issuer shall have any obligation to amend any Letter of Credit if such LC Issuer
would have no obligation at such time to Issue such Letter of Credit in its
amended form under the terms of this Agreement. No LC Issuer shall amend any
Letter of Credit if: (A) such LC Issuer would not be permitted to Issue such
Letter of Credit in its amended form under the terms of this Agreement; or (B)
the beneficiary of such Letter of Credit does not accept the proposed amendment
to such Letter of Credit.
(d) The LC Issuers and the Revolving Lenders agree that, while a Letter of
Credit is outstanding and prior to the Commitment Termination Date, at the
option of the applicable Account Party and upon the written request of such
Account Party received by the applicable LC Issuer (with a copy sent by such
Account Party to the Agent) at least four Business Days (or such shorter time as
such LC Issuer and the Agent may agree in a particular instance in their sole
discretion) prior to the proposed date of notification of renewal, such LC
Issuer shall be entitled, with the approval of the Agent, to authorize the
renewal of any Letter of Credit issued by it. Each such request for renewal of a
Letter of Credit shall be made by facsimile, confirmed immediately in an
original writing, in the form of a Letter of Credit Amendment Application, and
shall specify in form and detail reasonably satisfactory to the applicable LC
Issuer: (i) the Letter of Credit to be renewed; (ii) the proposed date of
renewal of such Letter of Credit (which shall be a Business Day); (iii) the
revised expiry date of such Letter of Credit (which, unless all Lenders
otherwise consent in writing, shall be prior to the Commitment Termination
Date); and (iv) such other matters as such LC Issuer may require. No LC Issuer
shall be under any obligation to renew any Letter of Credit if such LC Issuer
would have no obligation at such time to Issue or amend such Letter of Credit in
its renewed form under the terms of this Agreement. No LC Issuer shall renew any
Letter of Credit if: (A) such LC Issuer would not be permitted to Issue or amend
such Letter of Credit in its renewed form under the terms of this Agreement; or
(B) the beneficiary of such Letter of Credit does not accept the proposed
renewal of such Letter of Credit. If any outstanding Letter of Credit shall
provide that it shall be automatically renewed unless the beneficiary thereof
receives notice from the applicable LC Issuer that such Letter of Credit shall
not be renewed, and if at the time of renewal such LC Issuer would be entitled
to authorize the renewal of such Letter of Credit in accordance with this
Section 2.16.2(d) upon the request of the applicable Account Party but such LC
Issuer shall not have received any Letter of Credit Amendment Application from
the applicable Account Party with respect to such renewal or other written
direction by such Account Party with respect thereto, and such LC Issuer shall
not have received notice from the Agent that such Letter of Credit shall not be
renewed, such LC Issuer shall allow such Letter of Credit to renew, and the
applicable Account Party and the Lenders hereby authorize such renewal, and,
accordingly, such LC Issuer shall be deemed to have received a Letter of Credit
Amendment Application from the applicable Account Party requesting such renewal.
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(e) Each LC Issuer may, at its election (or as required by the Agent
at the direction of the Required Lenders), deliver any notices of termination or
other communications to any applicable Letter of Credit beneficiary or
transferee, and take any other action as necessary or appropriate, at any time
and from time to time, in order to cause the expiry date of such Letter of
Credit to be a date not later than the Commitment Termination Date.
(f) This Agreement shall control in the event of any conflict with any
Letter of Credit Related Document (other than any Letter of Credit).
(g) The applicable LC Issuer will deliver to the Agent, concurrently or
promptly following its delivery of a Letter of Credit, or amendment to or
renewal of a Letter of Credit, to an advising bank or a beneficiary, a true and
complete copy of such Letter of Credit or amendment to or renewal of a Letter of
Credit.
2.16.3 Risk Participations, Drawings and Reimbursements.
(a) Immediately upon the Issuance of each Letter of Credit other than
an Alternate Currency Letter of Credit (or, in the case of the Existing Letters
of Credit, on the Original Closing Date), each Revolving Lender shall be deemed
to, and hereby irrevocably and unconditionally agrees to, purchase from the
applicable LC Issuer a participation in such Letter of Credit and each drawing
thereunder in an amount equal to the product of (i) such Lender's Revolver Pro
Rata Share times (ii) the maximum amount available to be drawn under such Letter
of Credit and the amount of such drawing, respectively.
(b) In the event of any request for a drawing under a Letter of Credit
by the beneficiary or transferee thereof, the applicable LC Issuer will promptly
notify the applicable Account Party and the Agent. The applicable Account Party
shall reimburse the applicable LC Issuer prior to 12:00 noon (Chicago time), on
each date that any amount is paid by such LC Issuer under any applicable Letter
of Credit (each such date, an "Honor Date") in an amount equal to the amount so
paid by such LC Issuer; provided, to the extent that such LC Issuer accepts a
drawing under a Letter of Credit after 12:00 noon (Chicago time), such Account
Party will not be obligated to reimburse such LC Issuer until the next Business
Day and the "Honor Date" for such Letter of Credit shall be such next Business
Day. If such Account Party fails to reimburse the applicable LC Issuer for the
full amount of any drawing under any Letter of Credit other than an Alternate
Currency Letter of Credit by 12:00 noon (Chicago time) on the Honor Date, such
LC Issuer will promptly notify the Agent and the Agent will promptly notify each
Revolving Lender and the Company thereof, and the Company shall be deemed to
have requested that Base Rate Loans be made by the Revolving Lenders to be
disbursed on the Honor Date under such Letter of Credit, subject to the amount
of the unutilized portion of the Revolving Commitments and subject to the
conditions set forth in Section 4.2. Any notice given by any LC Issuer or the
Agent pursuant to this Section 2.16.3(b) may be oral if immediately confirmed in
writing (including by facsimile); provided that the lack of
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such an immediate confirmation shall not affect the conclusiveness or binding
effect of such notice.
(c) Each Revolving Lender shall upon any notice pursuant to Section
2.16.3(b) make available to the Agent for the account of the applicable LC
Issuer an amount in Dollars and in immediately available funds equal to its
Revolver Pro Rata Share of the amount of the drawing with respect to a Letter of
Credit other than an Alternate Currency Letter of Credit, whereupon the
participating Lenders shall (subject to Section 2.16.3(d)) each be deemed to
have made a Revolving Loan consisting of a Base Rate Loan to the Company in such
amount. If any Revolving Lender so notified fails to make available to the Agent
for the account of the applicable LC Issuer the amount of such Lender's Revolver
Pro Rata Share of the amount of such drawing by no later than 3:00 p.m. (Chicago
time) on the Honor Date, then interest shall accrue on such Lender's obligation
to make such payment, from the Honor Date to the date such Revolving Lender
makes such payment, at a rate per annum equal to the Federal Funds Rate in
effect from time to time during such period. The Agent will promptly give notice
of the occurrence of the Honor Date, but failure of the Agent to give any such
notice on the Honor Date or in sufficient time to enable any Revolving Lender to
effect such payment on such date shall not relieve such Revolving Lender from
its obligations under this Section 2.16.3.
(d) With respect to any unreimbursed drawing that is not converted into
Revolving Loans consisting of Base Rate Loans in whole or in part, because of
the Company's failure to satisfy the conditions set forth in Section 4.2 or for
any other reason, the applicable Account Party shall be deemed to have incurred
from the applicable LC Issuer a Letter of Credit Borrowing in the amount of such
drawing, which Letter of Credit Borrowing shall be due and payable on demand
(together with interest) and shall bear interest at a rate per annum equal to
the Base Rate plus the Applicable Margin plus 2% per annum, and each Revolving
Lender's payment to the applicable LC Issuer pursuant to Section 2.16.3(c) with
respect to a Letter of Credit other than an Alternate Currency Letter of Credit
shall be deemed payment in respect of its participation in such Letter of Credit
Borrowing and shall constitute a Letter of Credit Advance from such Revolving
Lender in satisfaction of its participation obligation under this Section
2.16.3.
(e) Each Revolving Lender's obligation in accordance with this
Agreement to make Revolving Loans or Letter of Credit Advances, as contemplated
by this Section 2.16.3, as a result of a drawing under a Letter of Credit other
than an Alternate Currency Letter of Credit, shall be absolute and unconditional
and without recourse to the applicable LC Issuer and shall not be affected by
any circumstance, including (i) any set-off, counterclaim, recoupment, defense
or other right which such Lender may have against such LC Issuer, any Account
Party or any other Person for any reason whatsoever, (ii) the occurrence or
continuance of a Default, an Event of Default or a Material Adverse Effect or
(iii) any other circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing; provided that each Revolving Lender's
obligation to make Revolving Loans with respect to Letters of Credit other than
Alternate
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Currency Letters of Credit under this Section 2.16.3 is subject to the
conditions set forth in Section 4.2.
2.16.4 Repayment of Participations.
(a) Upon (and only upon) receipt by the Agent for the account of the
applicable LC Issuer of immediately available funds from the applicable Account
Party (i) in reimbursement of any payment made by such LC Issuer under a Letter
of Credit other than an Alternate Currency Letter of Credit with respect to
which any Lender has paid the Agent for the account of such LC Issuer for such
Lender's participation in such Letter of Credit pursuant to Section 2.16.3 or
(ii) in payment of interest thereon, the Agent will promptly pay to each
Revolving Lender, in like funds as those received by the Agent for the account
of such LC Issuer, the amount of such Lender's Revolver Pro Rata Share of such
funds, and such LC Issuer shall receive the amount of the Revolver Pro Rata
Share of such funds of any Lender that did not so pay the Agent for the account
of such LC Issuer.
(b) If the Agent or any LC Issuer is required at any time to return
to any Account Party, or to a trustee, receiver, liquidator or custodian, or to
any official in any Insolvency Proceeding, any portion of any payment made by
the Account Party to the Agent for the account of such LC Issuer pursuant to
Section 2.16.4(a) in reimbursement of a payment made under a Letter of Credit
other than an Alternate Currency Letter of Credit or interest or fee thereon, to
the extent any Lender received its Revolver Pro Rata Share of such amount
pursuant to Section 2.16.4(a), such Lender shall, on demand of the Agent,
forthwith return to the Agent or such LC Issuer the amount of its Revolver Pro
Rata Share of any amount so returned by the Agent or such LC Issuer together
with interest thereon from the date such demand is made to the date such amount
is returned by such Lender to the Agent or such LC Issuer, at a rate per annum
equal to the Federal Funds Rate in effect from time to time.
2.16.5 Role of the LC Issuers.
(a) Each Lender and each Account Party agree that, in paying any
drawing under a Letter of Credit, the applicable LC Issuer shall not have any
responsibility to obtain any document (other than any sight draft and
certificate expressly required by such Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document.
(b) No Agent-Related Person, LC Issuer nor any of their respective
correspondents, participants or assignees shall be liable to any Lender for: (i)
any action taken or omitted in connection herewith at the request or with the
approval of the Lenders (including the Required Lenders, as applicable); (ii)
any action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any Letter of Credit Related Document.
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(c) Each Account Party hereby assumes all risks of the acts or
omissions of any beneficiary or transferee with respect to its use of any Letter
of Credit; provided that this assumption is not intended to, and shall not,
preclude such Account Party's pursuing such rights and remedies as it may have
against the beneficiary or transferee at law or under this Agreement or any
other agreement. Neither the Agent-Related Person, LC Issuer, the Lenders nor
any of their respective correspondents, participants or assignees shall be
liable or responsible for any of the matters described in clauses (i) through
(vii) of Section 2.16.6; provided that, anything in such clauses to the contrary
notwithstanding, the applicable Account Party may have a claim against the
applicable LC Issuer, and such LC Issuer may be liable to such Account Party, to
the extent, but only to the extent, of any direct, as opposed to consequential
or exemplary, damages suffered by such Account Party which such Account Party
proves were caused by such LC Issuer's willful misconduct, gross negligence or
bad faith or such LC Issuer's bad faith, willful or grossly negligent failure to
pay under any Letter of Credit after the presentation to it by the beneficiary
of a sight draft and certificate(s) strictly complying with the terms and
conditions of such Letter of Credit. In furtherance and not in limitation of the
foregoing: (i) each LC Issuer 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; and (ii) no LC Issuer shall be
responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may prove
to be invalid or ineffective for any reason.
2.16.6 Obligations Absolute. The obligations of each Account Party under
this Agreement and any Letter of Credit Related Document to reimburse the
applicable LC Issuer for a drawing under a Letter of Credit, and to repay any
Letter of Credit Borrowing and any drawing under a Letter of Credit converted
into Revolving Loans, shall be unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement and each such other
Letter of Credit Related Document under all circumstances, including the
following:
(i) any lack of validity or enforceability of this Agreement or
any Letter of Credit Related Document;
(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 any Account Party in
respect of any Letter of Credit or any other amendment or waiver of or any
consent to departure from all or any of the Letter of Credit Related Documents;
(iii) the existence of any claim, set-off, defense or other
right that any Account Party may have at any time against any beneficiary or any
transferee of any Letter of Credit (or any Person for whom any such beneficiary
or any such transferee may be acting), the applicable LC Issuer or any other
Person, whether in connection with this Agreement, the transactions contemplated
hereby or by the Letter of Credit Related Documents or any unrelated
transaction;
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<PAGE> 33
(iv) any draft, demand, certificate or other document presented
under any 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 or any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under any Letter of Credit;
(v) any payment by the applicable LC Issuer under any Letter
of Credit against presentation of a draft or certificate that does not strictly
comply with the terms of such Letter of Credit; or any payment made by the
applicable LC Issuer under any Letter of Credit to any Person purporting to be a
trustee in bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other representative of or successor to any
beneficiary or any transferee of any Letter of Credit, including any arising in
connection with any Insolvency Proceeding;
(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 any Account Party in respect of
any Letter of Credit; or
(vii) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including any other circumstance that might
otherwise constitute a defense available to, or a discharge of, any Account
Party or a guarantor.
2.16.7 Cash Collateral Pledge. If any Letter of Credit remains outstanding
and partially or wholly undrawn as of the Commitment Termination Date, then the
applicable Account Party shall immediately Cash Collateralize the Letter of
Credit Obligations in an amount equal to the maximum amount then available to be
drawn under all Letters of Credit.
2.16.8 Letter of Credit Fees.
(a) The applicable Account Party shall pay to the Agent for the account
of each Revolving Lender a letter of credit fee with respect to each Letter of
Credit other than an Alternate Currency Letter of Credit equal to the Applicable
Letter of Credit Fee Rate per annum of the average daily maximum amount
available to be drawn on such Letter of Credit, computed on a quarterly basis in
arrears on the last day of each calendar quarter and on the Commitment
Termination Date (or such later date upon which all outstanding Letters of
Credit shall expire or be fully drawn). Notwithstanding the foregoing, upon
notice to the Company by the Agent at the request of the Required Lenders either
(i) while any Event of Default exists or (ii) after acceleration, the Company
shall pay a letter of credit fee with respect to each Letter of Credit other
than an Alternate Currency Letter of Credit equal to the Applicable Letter of
Credit Fee plus 2% per annum of the average daily maximum amount available to be
drawn on such Letter of Credit.
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(b) The applicable Account Party shall pay to each LC Issuer a
fronting fee for each Letter of Credit Issued by such LC Issuer other than an
Alternate Currency Letter of Credit equal to 0.125% per annum of the average
daily maximum amount available to be drawn on such Letter of Credit, computed on
the last day of each calendar quarter and on the Commitment Termination Date (or
such later date on which such Letter of Credit shall expire or be fully drawn).
(c) The letter of credit fees payable under Section 2.16.8(a) shall be
due and payable quarterly in arrears on the last Business Day of each calendar
quarter during which Letters of Credit are outstanding, commencing on the first
such quarterly date to occur after the Original Closing Date, through the
Commitment Termination Date (or such later date upon which all outstanding
Letters of Credit shall expire or be fully drawn), with the final payment to be
made on the Commitment Termination Date (or such later date). The fronting fees
payable under Section 2.16.8(b) shall be billed on a quarterly basis by the
applicable LC Issuer. For purposes of calculating the fees payable under Section
2.16.8(a) and Section 2.16.8(b), any undrawn Commercial Letters of Credit should
be considered outstanding and available to be drawn upon for 25 days after their
expiry date.
(d) The applicable Account Party shall pay to each applicable LC
Issuer from time to time promptly upon demand the normal issuance, presentation,
amendment and other processing fees, and other standard costs and charges, of
each such LC Issuer relating to letters of credit as from time to time in
effect.
2.16.9 Uniform Customs and Practice. The Uniform Customs and Practice for
Documentary Credits as published by the International Chamber of Commerce most
recently at the time of Issuance of any Letter of Credit shall (unless otherwise
expressly provided in such Letter of Credit) apply to each Letter of Credit.
2.16.10 Alternate Currency Annex Controls When Conflict. If there is any
conflict between this Section 2.16 and any applicable Alternate Currency Annex,
this Section 2.16 and such Alternative Currency Annex shall be construed and
interpreted, if possible, to avoid or minimize such conflict, but to the extent
of any remaining conflict such Alternate Currency Annex shall prevail and
control with respect to any Alternate Currency Letter of Credit subject thereto.
2.17 Alternate Currency Subfacility.
(a) Subject to the terms and conditions hereof, the applicable Alternate
Currency Lender or Alternate Currency LC Issuer, as the case may be, shall
(subject to Section 2.17(b)) make loans in the applicable Alternate Currency
(each such loan, an "Alternate Currency Loan") to any applicable Alternate
Currency Borrower or issue an Alternate Currency Letter of Credit denominated in
the applicable Alternate Currency, or amend or renew any such Alternate Currency
Letter of Credit previously issued by it, for
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the account of any applicable Alternate Currency Account Party (each such Letter
of Credit, an "Alternate Currency Letter of Credit", and, together with the
Alternate Currency Loans, the "Alternate Currency Credit Extensions"), as the
case may be, on any Business Day during the period from the Original Closing
Date to the applicable Alternate Currency Commitment Termination Date in
accordance with the procedures set forth in the applicable Alternate Currency
Annex (or, if such procedures are not set forth therein, in accordance with the
applicable corresponding procedures set forth herein for the comparable Credit
Extensions hereunder) in an Effective Amount at any one time outstanding not to
exceed the lesser of (x) the aggregate available amount of the Revolving
Commitments and (y) the applicable Alternate Currency Sublimit notwithstanding
the fact that the Effective Amount of such Alternate Currency Credit Extensions,
when aggregated with the applicable Alternate Currency Lender's or Alternate
Currency LC Issuer's, as the case may be, outstanding Revolving Loans and its
Revolver Pro Rata Share of Letter of Credit Obligations, may exceed the
applicable Alternate Currency Lender's or Alternate Currency LC Issuer's, as the
case may be, Revolver Pro Rata Share of the aggregate amount of the Revolving
Commitments; provided that at no time shall the Effective Amount of all
outstanding Alternate Currency Credit Extensions by any Alternate Currency
Lender or Alternate Currency LC Issuer in any Alternate Currency exceed the
Alternate Currency Commitment Amount; and provided, further, that at no time
shall the sum of (i) the Effective Amount of all outstanding Revolving Loans
(including for purposes hereof Swingline Loans and Alternate Currency Loans)
plus (ii) the Effective Amount of all Letter of Credit Obligations minus (iii)
the lesser of (x) the Effective Amount of all Alternate Currency Loans supported
by Alternate Currency Standby Letters of Credit and (y) the Effective Amount of
all Letter of Credit Obligations with respect to Alternate Currency Standby
Letters of Credit exceed the Total Commitment Amount. Subject to the other terms
and conditions hereof, any applicable Alternate Currency Borrower may borrow
under this Section 2.17(a), prepay pursuant to Section 2.17(d) and reborrow
pursuant to this Section 2.17(a) from time to time.
(b) The applicable Alternate Currency Borrower or Alternate Currency
Account Party, as the case may be, shall provide the Agent and the applicable
Alternate Currency Lender or Alternate Currency LC Issuer, as the case may be,
irrevocable written notice (or notice by a telephone call confirmed promptly by
facsimile) of any Alternate Currency Credit Extensions requested hereunder,
which notice must be received by Alternate Currency Lender or Alternate Currency
LC Issuer, as the case may be, and the Agent by the time and otherwise in
accordance with the procedures set forth in Section 2.3 or 2.16.3, as the case
may be, and the applicable Alternative Currency Annex. Upon receipt of such
notice, such Alternate Currency Lender or Alternate Currency LC Issuer, as the
case may be, will promptly confirm with the Agent (by telephone or in writing)
that the Agent has received a copy of such notice from such Alternate Currency
Borrower or Alternate Currency Account Party, as the case may be, and, if not,
such Alternate
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Currency Lender or Alternate Currency LC Issuer, as the case may be, will
provide the Agent with a copy thereof. If and only if the Agent notifies such
Alternate Currency Lender or Alternate Currency LC Issuer, as the case may be,
on the proposed Borrowing Date, or Issuance Date, as the case may be, that it
may make available to such Alternate Currency Borrower or Alternate Currency
Account Party, as the case may be, the amount of the requested Alternate
Currency Credit Extensions, then, subject to the terms and conditions hereof,
such Alternate Currency Lender or Alternate Currency LC Issuer, as the case may
be, may make the amount of the requested Alternate Currency Credit Extensions
available to the Company in the manner specified in the Alternate Currency
Annex. The Agent will not so notify such Alternate Currency Lender or Alternate
Currency LC Issuer, as the case may be, if the Agent has knowledge that (A) the
limitations set forth in the provisos set forth in the first sentence of Section
2.17(a) are being violated or would be violated by such Alternate Currency
Credit Extension or (B) one or more conditions specified in Article IV is not
then satisfied. Such Alternate Currency Lender or Alternate Currency LC Issuer,
as the case may be, will promptly notify the Agent of the amount of each
Alternate Currency Credit Extension.
(c) Alternate Currency Loans shall bear interest as specified in the
applicable Alternate Currency Annex. Principal of and accrued interest on each
Alternate Currency Loan shall be due and payable to the applicable Alternate
Currency Lender (i) on demand made by such Alternate Currency Lender at any time
upon one Business Day's prior notice to the applicable Alternate Currency
Borrower furnished at or before 10:00 a.m. (Chicago time) or the time and date
specified in the applicable Alternate Currency Annex, and (ii) in any event on
the Commitment Termination Date. Interest on Alternate Currency Loans shall be
for the sole account of the applicable Alternate Currency Lender (except to the
extent that the other Lenders have funded the purchase of their respective
participations therein pursuant to Section 2.17(e)). Each Alternate Currency
Account Party shall pay to each applicable Alternate Currency LC Issuer the
letter of credit and other fees with respect to applicable Alternate Currency
Letters of Credit in the amounts and on the terms specified in the Applicable
Alternate Currency Annex.
(d) The applicable Alternate Currency Borrower may, from time to time
on any Business Day, make a voluntary prepayment, in whole or in part, of the
outstanding principal amount of any Alternate Currency Loan, without incurring
any premium or penalty; provided that
(i) each such voluntary prepayment shall require prior written
notice given to the Agent and the applicable Alternate Currency Lender no
later than the applicable time set forth in the applicable Alternate
Currency Annex on the day on which the applicable Alternate Currency
Borrower intends to make a voluntary prepayment, and
(ii) each such voluntary prepayment shall be in an amount equal
to $500,000 or equivalent thereof in the applicable Alternate Currency or a
higher integral multiple of $100,000 or equivalent thereof in the
applicable Alternate Currency (or, if less, the aggregate outstanding
principal amount of all Alternate
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Currency Loans in such Alternate Currency to such Alternate Currency
Borrower then outstanding).
Payments of principal of and accrued interest on Alternate
Currency Loans shall be made by the applicable Alternate Currency Borrower to
the applicable Alternate Currency Lender at such office as such Alternate
Currency Lender may designate by notice to the applicable Alternate Currency
Borrower from time to time. All such payments shall be made in the applicable
Alternate Currency and in immediately available funds no later than the time
specified in the Alternate Currency Annex with respect to Alternate Currency
Loans in such Alternate Currency on the date specified by the applicable
Alternate Currency Borrower pursuant to clause (i) above (and any payment
received later than such time shall be deemed to have been received on the next
Business Day). The applicable Alternate Currency Lender will promptly notify the
Agent of the amount of each prepayment of Alternate Currency Loans.
(e) If any Alternate Currency Credit Extensions shall remain
outstanding during an Event of Default, each applicable Alternate Currency
Lender and each applicable Alternate Currency LC Issuer may, upon the approval
of the Agent, the applicable LC Issuer and the Required Lenders, request the
Issuance by such LC Issuer of a Standby Letter of Credit in Dollars for the
benefit of such Alternate Currency Lender or Alternate Currency LC Issuer, as
the case may be, equal to 110% of the Effective Amount of the applicable
Alternate Currency Credit Extensions to a particular Alternate Currency Borrower
or Alternate Currency Account Party, as the case may be, upon which, during an
Event of Default under Section 8.1(a) with respect to such Alternate Currency
Credit Extensions or an Event of Default under Section 8.1(f) or (g) with
respect to the Company or the applicable Alternate Currency Borrower or
Alternate Currency Account Party, as the case may be, such Alternate Currency
Lender or Alternate Currency LC Issuer, as the case may be, may draw all or part
of the Effective Amount of the applicable Alternate Currency Credit Extensions
at such time (each an "Alternate Currency Standby Letter of Credit"). Such
Alternate Currency Lender or Alternate Currency LC Issuer, as the case may be,
shall deliver to the Company, the Agent and the applicable LC Issuer any request
for the Issuance of an Alternate Currency Standby Letter of Credit in the form
of a Letter of Credit Application at least seven Business Days prior to the
proposed Issuance Date. Upon receipt of any such request, the Agent shall
promptly notify the Revolving Lenders thereof, and each Revolving Lender shall
respond to such request within three Business Days thereof; provided that any
Revolving Lender that fails to so respond shall be deemed to have denied such
request. The Agent shall promptly notify such Alternate Currency Lender or
Alternate Currency LC Issuer, as the case may be, the Revolving Lenders, the
applicable LC Issuer and the Company of the acceptance or rejection of such
request by the Agent, the applicable LC Issuer and such Required Lenders. If
such request is accepted by the Agent, the applicable LC Issuer and the Required
Lenders, the applicable Alternate Currency Borrower or Alternate Currency
Account Party, as the case may be, shall be deemed to have timely requested the
Issuance of such Alternate Currency Standby Letter of Credit on the proposed
Issuance Date, and the procedures set forth in Section 2.16 shall be followed in
Issuing such Alternate
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Currency Standby Letter of Credit; provided that such Alternate Currency Standby
Letter of Credit shall be Issued notwithstanding the Company's failure to comply
with Section 4.2. If (i) any Alternate Currency Loans or Letter of Credit
Borrowings with respect to Alternate Currency Letters of Credit shall remain
outstanding at the applicable time set forth in the applicable Alternate
Currency Annex on the Business Day immediately prior to a Business Day on which
such Alternate Currency Credit Extensions are due and payable pursuant to
Section 2.17(c) and by such time on such Business Day the Agent shall have
received neither (A) a Notice of Borrowing delivered pursuant to Section 2.3
requesting that Revolving Loans be made on such following Business Day in an
amount at least equal to the Effective Amount of such Alternate Currency Credit
Extensions, nor (B) any other notice indicating the applicable Alternate
Currency Borrower's or Alternate Currency Account Party's as the case may be,
intent to repay such Alternate Currency Credit Extensions with funds obtained
from other sources, (ii) any Alternate Currency Loans or Letter of Credit
Borrowings with respect to Alternate Currency Letters of Credit shall remain
outstanding during the existence of an Event of Default under Section 8.1(a)
with respect to such Alternate Currency Loans or Letter of Credit Borrowings, as
the case may be, or an Event of Default under Section 8.1(f) or (g) with respect
to the Company or the applicable Alternate Currency Borrower or Alternate
Currency Account Party, as the case may be, or (iii) any Alternate Currency
Loans or Letter of Credit Borrowings with respect to Alternate Currency Letters
of Credit shall remain outstanding during an Event of Default and the applicable
Alternate Currency Lender's or Alternate Currency LC Issuer's, as the case may
be, request for the Issuance of an Alternate Currency Standby Letter of Credit
with respect to such Alternate Currency Credit Extensions has been rejected or
is legally impracticable, or drawings under an Alternate Currency Standby Letter
of Credit with respect to such Alternate Currency Credit Extensions are not
available to the applicable Alternate Currency Lender or Alternate Currency LC
Issuer, as the case may be, the applicable Alternate Currency Lender or
Alternate Currency LC Issuer, as the case may be, may in its sole discretion
request to the Agent that, to the extent that an Alternate Currency Standby
Letter of Credit has not been Issued with respect to such Alternate Currency
Credit Extensions, or drawings under an Alternate Currency Standby Letter of
Credit with respect to such Alternate Currency Credit Extensions are not
available to the applicable Alternate Currency Lender or Alternate Currency LC
Issuer, as the case may be, such Alternate Currency Credit Extensions be
converted into Revolving Loans, in which case the Agent shall be deemed to have
received a Notice of Borrowing from the Company pursuant to Section 2.3
requesting that Base Rate Loans be made on the following Business Day in an
amount equal to the Effective Amount of such Alternate Currency Credit
Extensions, and the procedures set forth in Section 2.3(c) shall be followed in
making such Base Rate Loans, provided that such Base Rate Loans shall be made
notwithstanding the Company's failure to comply with Section 4.2. If a Borrowing
of Revolving Loans becomes legally impractical and if so required by the
applicable Alternate Currency Lender or Alternate Currency LC Issuer, as the
case may be, at the time such Revolving Loans are required to be made by the
Revolving Lenders in accordance with this Section 2.17(e), each Revolving Lender
agrees that in lieu of making Revolving Loans as described in this Section
2.17(e), such Revolving Lender shall purchase in Dollars a participation from
the applicable Alternate
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Currency Lender or Alternate Currency LC Issuer, as the case may be, in the
applicable Alternate Currency Credit Extensions in an amount equal to such
Lender's Revolver Pro Rata Share of the Effective Amount of such Alternate
Currency Credit Extensions, and applicable procedures set forth in Section
2.16.3(c) shall be followed in connection with the purchase of such
participations; provided that the applicable Alternate Currency Lender or
Alternate Currency LC Issuer shall use all reasonable efforts to convert such
Alternate Currency Credit Extensions into obligations denominated and payable in
Dollars. The proceeds of such Base Rate Loans (or participations purchased)
shall be delivered by the Agent to the applicable Alternate Currency Lender or
Alternate Currency LC Issuer, as the case may be, in Dollars to repay such
Alternate Currency Credit Extensions or as payment for such participations. In
the event that the applicable Alternate Currency Borrower or Alternate Currency
Account Party, as the case may be, makes a payment with respect to Alternate
Currency Credit Extensions in which participations have been purchased by the
Revolving Lenders that have not been converted into obligations denominated and
payable in Dollars, the Company shall pay to the Agent for the account of the
Revolving Lenders an Alternate Currency Make-Whole Payment with respect to such
payment. A copy of each notice given by the Agent to the Revolving Lenders
pursuant to this Section 2.17(e) with respect to the making of Revolving Loans
or the purchase of participations shall be promptly delivered by the Agent to
the applicable Alternate Currency Lender or Alternate Currency LC Issuer, as the
case may be. Each Revolving Lender's obligation in accordance with this
Agreement to participate in any Alternate Currency Standby Letters of Credit, to
make the Revolving Loans or to purchase participations, as contemplated by this
Section 2.17(e), shall be absolute and unconditional and shall not be affected
by any circumstance, including (1) any set-off, counterclaim, recoupment,
defense or other right which such Lender may have against the applicable
Alternate Currency Lender or Alternate Currency Account Party, as the case may
be, any applicable Alternate Currency Borrower or Alternate Currency LC Issuer
or any other Person for any reason whatsoever; (2) the occurrence or continuance
of a Default, an Event of Default or a Material Adverse Effect; or (3) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing.
(f) The Agent will determine the Dollar Equivalent of (i) any
Alternate Currency Credit Extension as of the requested Borrowing Date or
Issuance Date, as the case may be, (ii) all outstanding Alternate Currency
Credit Extensions as of the last Business Day of each month, and (iii)
outstanding Alternate Currency Loans as of any date of redenomination of an
Alternate Currency Loan into Dollars pursuant to this Section 2.17 or Section
3.5.
(g) The Company shall be entitled to request that Alternate Currency
Credit Extensions hereunder also be permitted to be made or Issued, as the case
may be, to applicable Alternate Currency Borrowers or Alternate Currency Account
Parties, as the case may be, in any other lawful currency constituting a
eurocurrency (other than Dollars), in addition to the eurocurrencies specified
in the definition of "Alternate
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Currency" herein, that is approved by the Required Lenders and the Agent, and
that in the opinion of the Required Lenders and the Agent is at such time freely
traded in the offshore interbank foreign exchange markets and is freely
transferable and freely convertible into Dollars (an "Agreed Alternate
Currency"). The Company shall deliver to the Agent any request for designation
of an Agreed Alternate Currency in accordance with Section 10.2 and specifying
the proposed Alternate Currency Borrower(s) and/or Alternate Currency Account
Party(ies), each of which must be a Supermajority-Owned Subsidiary (each an
"Agreed Alternate Currency Borrower" and "Agreed Alternate Currency Account
Party", respectively), to be received by the Agent at least twenty Business Days
in advance of the date of any Borrowing or Issuance hereunder proposed to be
made in such Agreed Alternate Currency. Upon receipt of any such request the
Agent will promptly notify the Revolving Lenders thereof, and each Revolving
Lender shall respond to such request within three Business Days of receipt
thereof; provided that any Revolving Lender that fails to so respond shall be
deemed to have denied such request. Each Revolving Lender may grant or accept
such request in its sole discretion. The Agent shall promptly notify the Company
of the acceptance or rejection of any such request. If such request is accepted,
the Agent in its sole discretion shall designate an Alternate Currency Lender
and/or an Alternate Currency LC Issuer, as the case may be, for such Agreed
Alternate Currency, with each such Person's consent; provided that the Agent is
under no obligation to designate a Lender as an Alternate Currency Lender or
Alternate Currency LC Issuer. The Agent has previously submitted to the
Revolving Lenders for the approval of the Required Lenders the procedures for
Alternate Currency Credit Extensions (to the extent that they differ from the
procedures for the comparable Credit Extensions hereunder) in the applicable
Alternate Currency Annex other than any Alternate Currency Annex with respect to
Italian Lire entered into with Istituto Bancario San Paolo Di Torino S.p.A. as
the Alternate Currency Lender with respect to Italian Lire no later than one
hundred eighty (180) days after the Original Closing Date. Each Lender has
indicated its approval or disapproval of such Alternate Currency Annex within
three Business Days of its receipt of such Alternate Currency Annex; provided
that any Revolving Lender that failed to respond shall be deemed to have
approved such Alternate Currency Annex. Each Revolving Lender has approved or
disapproved such Alternate Currency Annex in its sole discretion. If such
Alternative Currency Annex is approved, then each of the Company, the applicable
Alternate Currency Borrowers, the applicable Alternate Currency Account Parties,
the Agent, the applicable Alternate Currency Lender and the applicable Alternate
Currency LC Issuer shall execute the applicable Alternate Currency Annex, upon
which the Agreed Alternate Currency shall be deemed to be an "Alternate
Currency" for all purposes hereunder. In connection with the execution of a new
Alternate Currency Annex, the Company shall deliver, and shall cause the
Alternate Currency Borrowers and Alternate Currency Account Parties to deliver,
to the Agent and the applicable Alternate Currency Lender and Alternate Currency
LC Issuer, such opinions of counsel, certificates, resolutions, instruments and
other documentation as any of the Agent, the applicable Alternate Currency
Lender and the applicable Alternate Currency LC Issuer may reasonably request
from time to time. Company may request the availability of the other type of
Alternate Currency Extension, if not already available, and the addition of
other Alternate Currency Borrowers and Alternate Currency Account Parties,
according to the same procedures in this Section 2.17(g).
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(h) Subject to Section 3.4, if on any Valuation Date the Agent shall
have determined that the sum of (i) the Effective Amount of all outstanding
Revolving Loans (including for purposes hereof Swingline Loans and Alternate
Currency Loans) plus (ii) the Effective Amount of all outstanding Letter of
Credit Obligations minus (iii) the lesser of (x) the Effective Amount of all
Alternate Currency Loans supported by Alternate Currency Standby Letters of
Credit and (y) the Effective Amount of all Letter of Credit Obligations with
respect to Alternate Currency Standby Letters of Credit exceeds the Total
Commitment Amount due to a change in applicable rates of exchange between
Dollars and Alternate Currencies, then the Agent shall give notice to the
Company and each Revolving Lender that a prepayment is required under this
Section 2.17(h), and the Company agrees thereupon to make prepayments on the
third Business Day after notice from the Agent of Revolving Loans (and if
necessary, Cash Collateralize the outstanding Letters of Credit) such that,
after giving effect to such prepayment or Cash Collateralization, the Effective
Amount of all outstanding Revolving Loans (including for purposes hereof
Swingline Loans and Alternate Currency Loans) and of all outstanding Letter of
Credit Obligations (net of any Cash Collateralization) does not exceed the Total
Commitment Amount. Any prepayment under this Section 2.17(h) shall be made
together with accrued interest and any amounts required pursuant to Section 3.4.
(i) Subject to Section 3.4, if on any Valuation Date the Agent shall
have determined that the Effective Amount of all Alternate Currency Credit
Extensions in a particular Alternate Currency exceeds 105% of either the
applicable Alternate Currency Sublimit or the Alternate Currency Standby Letter
of Credit with respect to such Alternate Currency Credit Extensions due to a
change in applicable rates of exchange between Dollars and such Alternate
Currency, then the Agent shall give notice to the Company and the applicable
Alternate Currency Lender that a prepayment is required under this Section
2.17(i), and the Company agrees thereupon to make, or cause one or more other
Alternate Currency Borrowers to make, prepayments on the third Business Day
after notice from the Agent of applicable Alternate Currency Loans selected at
the Company's discretion (and if necessary, Cash Collateralize the outstanding
applicable Alternate Currency Letters of Credit) such that, after giving effect
to such prepayment or Cash Collateralization, the Effective Amount of all
Alternate Currency Credit Extensions in such Alternate Currency (net of any Cash
Collateralization) does not exceed either the applicable Alternate Currency
Sublimit or such Alternate Currency Standby Letter of Credit, as the case may
be. Any prepayment under this Section 2.17(i) shall be made together with
accrued interest and any amounts required pursuant to Section 3.4.
(j) The Company may terminate the ability of it or any other Alternate
Currency Borrower or Alternate Currency Account Party to request Alternate
Currency Loans or Alternate Currency Letters of Credit in a particular Alternate
Currency upon not less than five Business Days' prior notice to the Agent and
the applicable Alternate
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Currency Lender or Alternate Currency LC Issuer, as the case may be; provided
that no Alternate Currency Loans or Alternate Currency Letter of Credit
Obligations in such Alternate Currency, as the case may be, with respect to such
Alternate Currency Borrower or Alternate Currency Account Party, as the case may
be, are outstanding on the effective date thereof after giving effect to any
payments of such Alternate Currency Loans or with respect to such Alternate
Currency Letter of Credit Obligations. The Company may request at a later date
that Alternate Currency Credit Extensions in such Alternate Currency be made or
Issued to such terminated Alternate Currency Borrower or Alternate Currency
Issuer, as the case may be, pursuant to the provisions of Section 2.17(g).
2.18 Guaranty and Pledge Agreements.
(a) The prompt payment and performance of all obligations of the Credit
Parties under this Agreement, each of the Notes and all other Credit Documents
shall be unconditionally guaranteed by each Guarantor from time to time pursuant
to the Guaranty.
(b) 65% of the outstanding capital stock of each Foreign 956 Subsidiary
from time to time shall be pledged to secure all obligations of the Credit
Parties under this Agreement, each of the Notes and all other Credit Documents
by each applicable Pledgor pursuant to its Pledge Agreement.
(c) In connection with the Guaranty and Pledge Agreements described in
clauses (a) and (b) above, the Company shall deliver and cause each Guarantor
and Pledgor to deliver to the Agent such opinions of counsel, certificates,
resolutions, instruments and other documentation as the Agent may reasonably
request from time to time.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.1 Taxes.
(a) Any and all payments by any Credit Party to any Lending Party or the
Agent under this Agreement or any other Credit Document shall be made free and
clear of, and without deduction or withholding for, any Taxes, except as
otherwise provided in Section 3.1(e) or (f). In addition, each Credit Party
shall pay all applicable Other Taxes except as otherwise provided in Section
3.1(e) or (f).
(b) If any Credit Party shall be required by law to deduct or withhold
any Taxes, Other Taxes or Further Taxes from or in respect of any sum payable
hereunder to any Lending Party or the Agent, then:
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(i) the sum payable shall be increased as necessary so that, after
making all required deductions and withholdings (including deductions and
withholdings applicable to additional sums payable under this Section), such
Lending Party or the Agent, as the case may be, receives and retains an amount
equal to the sum it would have received and retained had no such deductions or
withholdings been made;
(ii) such Credit Party shall make such deductions and withholdings;
(iii) such Credit Party shall pay the full amount deducted or
withheld to the relevant taxing authority or other authority in accordance with
applicable law; and
(iv) such Credit Party shall also pay to each Lending Party or the
Agent for the account of such Lending Party, at the time interest is paid,
Further Taxes in the amount that the respective Lending Party specifies as
necessary to preserve the after-tax yield such Lending Party would have received
if such Taxes, Other Taxes or Further Taxes had not been imposed.
(c) Each Credit Party agrees to indemnify and hold harmless each Lending
Party and the Agent for the full amount of (i) Taxes, (ii) Other Taxes, and
(iii) Further Taxes in the amount that the respective Lending Party or the Agent
specifies as necessary to preserve the after-tax yield such Lending Party or the
Agent would have received if such Taxes, Other Taxes or Further Taxes had not
been imposed, and any liability (including penalties, interest, additions to tax
and expenses) arising therefrom or with respect thereto, whether or not such
Taxes, Other Taxes or Further Taxes were correctly or legally asserted. Payment
under this indemnification shall be made within 30 days after the date the
applicable Lending Party or the Agent makes written demand therefor.
(d) Within 30 days after the date of any payment by any Credit Party of
Taxes, Other Taxes or Further Taxes, such Credit Party shall furnish to each
Lending Party or the Agent the original or a certified copy of a receipt
evidencing payment thereof, or other evidence of payment satisfactory to such
Lending Party or the Agent.
(e) If any Credit Party is required to pay any amount to any Lending
Party or the Agent pursuant to Section 3.1(b) or (c), then such Lending Party
shall use reasonable efforts (consistent with legal and regulatory restrictions)
to change the jurisdiction of its Lending Office so as to eliminate any such
additional payment by such Credit Party which may thereafter accrue, if such
change in the sole judgment of such Lending Party is not otherwise
disadvantageous to such Lending Party.
(f) Nothing contained in this Section 3.1 shall override any term or
provision of any Specified Swap Contract regarding withholding taxes relating to
Swap Contracts.
(g) Each Lender that is incorporated under the laws of any jurisdiction
other than the United States of America or any state or other political
subdivision thereof
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represents and warrants to the Company and to the Agent that, in the case of
such Lender, on the date hereof, and, in the case of each other Lender, on the
date of its execution and delivery of the Assignment and Acceptance that first
makes it a party hereto, its Lending Offices are entitled to receive payments in
respect of the Obligations owed to it including principal, interest, facility
fees and letter of credit fees without deduction or withholding for or on
account of United States taxes.
3.2 Illegality.
(a) If any Lending Party determines that the introduction of any
Requirement of Law, or any change in any Requirement of Law, or in the
interpretation or administration of any Requirement of Law, has made it
unlawful, or that any central bank or other Governmental Authority has asserted
that it is unlawful, for such Lending Party or its applicable Lending Office to
make Offshore Rate Loans or Alternate Currency Loans, as the case may be, then,
on notice thereof by such Lending Party to the Company through the Agent, any
obligation of that Lending Party to make Offshore Rate Loans or Alternate
Currency Loans, as the case may be, shall be suspended until such Lending Party
notifies the Agent and the Company that the circumstances giving rise to such
determination no longer exist.
(b) If a Lending Party determines that it is unlawful to maintain any
Offshore Rate Loan or Alternate Currency Loan, as the case may be, the
applicable Credit Party shall, upon receipt by the Company of notice of such
fact and demand from such Lending Party (with a copy to the Agent), prepay in
full such Offshore Rate Loans or Alternate Currency Loans, as the case may be,
of such Lending Party then outstanding, together with interest accrued thereon
and amounts required under Section 3.4, either on the last day of the Interest
Period thereof in the case of Offshore Rate Loans, if such Lending Party may
lawfully continue to maintain such Offshore Rate Loans to such day, or
immediately, in the case of Alternate Currency Loans or if such Lending Party
may not lawfully continue to maintain such Offshore Rate Loan. If the Company is
required to so prepay any Offshore Rate Loan, then concurrently with such
prepayment, the Company shall borrow from the affected Lender, in the amount of
such repayment, a Base Rate Loan.
(c) If the obligation of any Lender to make or maintain Offshore Rate Loans
has been so terminated or suspended, the Company may elect, by giving notice to
such Lender through the Agent that all Dollar denominated Loans which would
otherwise be made by such Lender as Offshore Rate Loans shall be instead Base
Rate Loans.
(d) Before giving any notice to the Agent under this Section 3.2, the
affected Lending Party shall designate a different Lending Office with respect
to its Offshore Rate Loans or Alternate Currency Loans, as the case may be, if
such designation will avoid the need for giving such notice or making such
demand and will not, in the judgment of such Lending Party, be illegal or
otherwise disadvantageous to such Lending Party.
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3.3 Increased Costs and Reduction of Return.
(a) If any Lending Party determines that, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance by such Lending Party with any guideline or
request from any central bank or other Governmental Authority (whether or not
having the force of law), there shall be any increase in the cost to such
Lending Party of agreeing to make or making, funding or maintaining any Offshore
Rate Loans or Alternate Currency Loans, participating in Letters of Credit,
agreeing to Issue, Issuing or maintaining any Letter of Credit or funding any
drawing under any Letter of Credit or any participation therein, as the case may
be, then the applicable Credit Party shall be liable for, and shall from time to
time, upon demand (with a copy of such demand to be sent to the Agent), pay to
the Agent for the account of such Lending Party additional amounts as are
sufficient to compensate such Lending Party for such increased costs.
(b) If any Lending Party shall have determined that (i) the introduction of
any Capital Adequacy Regulation, (ii) any change in any Capital Adequacy
Regulation, (iii) any change in the interpretation or administration of any
Capital Adequacy Regulation by any central bank or other Governmental Authority
charged with the interpretation or administration thereof, or (iv) compliance by
such Lending Party (or its Lending Office) or any Person controlling such
Lending Party with any Capital Adequacy Regulation, affects or would affect the
amount of capital required or expected to be maintained by such Lending Party or
any Person controlling such Lending Party and (taking into consideration such
Lending Party's or such Person's policies with respect to capital adequacy and
such Lending Party's of such Person's desired return on capital) determines that
the amount of such capital is increased as a consequence of its Revolving
Commitment, Credit Extensions or other obligations under this Agreement, then,
upon demand of such Lending Party to the Company through the Agent, the
applicable Credit Party shall pay to such Lending Party, from time to time as
specified by such Lending Party, additional amounts sufficient to compensate
such Lending Party or such Person for such increase.
3.4 Funding Losses. Each Credit Party shall promptly reimburse each Lending
Party and hold each Lending Party harmless from any loss or expense which such
Lending Party may sustain or incur as a consequence of:
(a) the failure of such Credit Party to make on a timely basis any payment
of principal of any Offshore Rate Loan or Alternate Currency Loan, as the case
may be;
(b) the failure of such Credit Party to borrow, continue or convert a Loan
after such Credit Party has given (or is deemed to have given) a Notice of
Borrowing or a Notice of Conversion/Continuation or a Notice of Euro Conversion;
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(c) in the case of the Company or any Foreign Subsidiary Borrower, the
failure of the Company or such Foreign Subsidiary Borrower to make any
prepayment in accordance with any notice delivered under Section 2.6;
(d) the prepayment (including pursuant to Section 2.7) or other payment
(including after acceleration thereof) of an Offshore Rate Loan or Alternate
Currency Loan on a day that is not the last day of the relevant Interest Period;
(e) in the case of the Company, the automatic conversion under Section 2.4
of any Offshore Rate Loan to a Base Rate Loan on a day that is not the last day
of the relevant Interest Period; or
(f) in the case of the Company, the conversion under Section 2.1(b)(ii) of
Term A Dollar Loans to Term A Euro Loans on a day that is not the last day of
the relevant Interest Period for the converted Loans.
including any such loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain its Offshore Rate Loans or
Alternate Currency Loans, as the case may be, or from fees payable to terminate
the deposits from which such funds were obtained. For purposes of calculating
amounts payable by such Credit Party to the Lending Parties under this Section
3.4 and under Section 3.3(a), (i) each Offshore Rate Loan made by a Lender (and
each related reserve, special deposit or similar requirement) shall be
conclusively deemed to have been funded at the Offshore Rate for such Offshore
Rate Loan by a matching deposit or other borrowing in the interbank eurocurrency
market for a comparable amount, comparable currency and for a comparable period,
whether or not such Offshore Rate Loan is in fact so funded, and (ii) amounts
payable with respect to Alternate Currency Loans shall be as set forth in the
applicable Alternate Currency Annex.
3.5 Inability to Determine Rates. If the Agent determines that for any
reason adequate and reasonable means do not exist for determining the Spot Rate
with respect to an Alternate Currency or the Offshore Rate for any requested
Interest Period with respect to a proposed Offshore Rate Loan, or that the
Offshore Rate applicable pursuant to Section 2.9(a) for any requested Interest
Period with respect to a proposed Offshore Rate Loan does not adequately and
fairly reflect the cost to any Lending Party of funding such Loan, the Agent
will promptly so notify the Company and each Lending Party. Thereafter, the
obligation of such Lending Party to make or maintain Offshore Rate Loans or
Alternate Currency Loans in such Alternate Currency, as the case may be,
hereunder shall be suspended until the Agent revokes such notice in writing.
Upon receipt of such notice, any Credit Party may revoke any applicable Notice
of Borrowing or Notice of Conversion/Continuation then submitted by it. If any
such Credit Party does not revoke any such Notice, such Lending Party shall
make, convert or continue the Offshore Rate Loans or make Alternate Currency
Loans, as proposed by such Credit Party, in the amount specified in the
applicable notice submitted by such Credit Party, but
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such Offshore Rate Loans shall be made, converted or continued as Base Rate
Loans instead of Offshore Rate Loans, as the case may be, and such Alternate
Currency Loans shall be made as Base Rate Loans in the Dollar Equivalent thereof
instead of Alternate Currency Loans.
3.6 Reserves on Offshore Rate Loans and Alternate Currency Loans. Each
Credit Party shall pay to each Lending Party, as long as such Lending Party
shall be required under regulations of the FRB to maintain reserves with respect
to liabilities or assets consisting of or including Eurocurrency funds or
deposits (currently known as "Eurocurrency liabilities"), and, in respect of
Alternate Currency Loans, under any applicable regulations of the relevant
Governmental Authority of the jurisdiction in which the applicable Alternate
Currency circulates, additional costs on the unpaid principal amount of each
Offshore Rate Loan or Alternate Currency Loan, as the case may be, equal to the
actual costs of such reserves allocated to such Loan by such Lending Party (as
reasonably determined by such Lending Party in good faith, which determination
shall be conclusive), payable on each date on which interest is payable on such
Loan, provided the Company shall have received at least 15 days' prior written
notice (with a copy to the Agent) of such additional interest from such Lending
Party. If a Lending Party fails to give notice 15 days prior to the relevant
Interest Payment Date, such additional interest shall be payable 15 days from
receipt of such notice.
3.7 Exchange Controls.
(a) If any Lender determines that the imposition of exchange controls by
any Governmental Authority will limit or terminate its ability to make
non-dollar denominated Loans, the obligations of such Lender making non-dollar
denominated Loans to provide such non-dollar denominated Loans shall terminate.
(b) If the imposition of exchange controls by any Governmental Authority
shall impair the ability of any Lender to receive payments in the applicable
currency, all such payments shall be made in Dollars to an office specified by
such Lender to the extent possible or otherwise as directed by such Lender.
3.8 Certificates of Lending Party. Any Lending Party claiming reimbursement
or compensation under this Article III shall deliver to the Company (with a copy
to the Agent) a certificate setting forth in reasonable detail the amount
payable to such Lending Party hereunder and such certificate shall be conclusive
and binding on the Credit Parties in the absence of manifest error.
3.9 Substitution of Lenders. Upon the receipt by the Company of (x) a claim
for compensation under Section 3.2 or 3.3 from any Lender or (y) a demand from
the Agent under Section 2.13(a) regarding any Lender (in either case such Lender
being an "Affected Lender"), the Company may, with the Agent's assistance: (i)
obtain a replacement bank or financial institution satisfactory to the Company
and to the Agent (a
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"Replacement Lender") to acquire and assume all or a ratable part of all of such
Affected Lender's Revolving Commitments, Credit Extensions and other rights and
obligations under this Agreement (collectively such Lender's "Assignable Credit
Exposure"), and if such Affected Lender or any Affiliate thereof is a Swap
Provider, all Specified Swap Contracts of such Affected Lender and Affiliate; or
(ii) request one or more of the other Lenders (which shall be under no
obligation) to acquire and assume all or part of such Affected Lender's
Assignable Credit Exposure. Any such designation of a Replacement Lender under
clause (i) shall be subject to the prior written consent of the Agent (which
consent shall not be unreasonably withheld). Before the acquisition and
assumption by a Replacement Lender or existing Lender of an Affected Lender's
Assignable Credit Exposure can be effective, the Credit Parties must pay to the
Affected Lender any costs and expenses due to it under Section 3.4.
3.10 Survival. The agreements and obligations of the Credit Parties in this
Article III shall survive the payment of all other Obligations.
ARTICLE IV
CONDITIONS PRECEDENT AND SUBSEQUENT
4.1 Conditions of Restatement. The effectiveness of this Agreement and the
obligation of each Term Lender to make its Term Loan hereunder is subject to the
condition that the Agent shall have received on or before the Restatement Date
all of the following, in form and substance reasonably satisfactory to the
Agent, the Required Lenders and the Required Term Lenders, and in the case of
the items described in clauses (a) (with respect to this Agreement only), (e)
and (g), with the Company providing sufficient copies for each Lender (and the
Agent providing to each Lender copies of the other items described in this
Section 4.1 received by the Agent):
(a) Credit Agreement and Notes. This Agreement executed by each Term
Lender and the Required Lenders and, to the extent requested by a Term Lender,
the Term A Notes executed by each party thereto;
(b) Resolutions; Incumbency.
(i) Copies of the resolutions of the board of directors (or similar
governing body, in the case of the Italian Borrower) of the Company and the
Parent and each Subsidiary that may become party to a Credit Document
authorizing the transactions contemplated hereby, certified as of the
Restatement Date by the Secretary or an Assistant Secretary of such Person; and
(ii) A certificate of the Secretary or Assistant Secretary of the
Company, and the Parent and each Subsidiary that may become party to a Credit
Document certifying the names and true signatures of the officers of such Person
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authorized to execute, deliver and perform, as applicable, this Agreement, and
all other Credit Documents to be delivered by it hereunder;
(c) Organization Documents; Good Standing. Each of the following documents:
(i) the articles or certificate of incorporation and the bylaws of
the Company and the Parent and each Subsidiary (other than the Italian Borrower)
party to any Credit Document as in effect on the Restatement Date, certified by
the Secretary or Assistant Secretary of such Person as of the Restatement Date;
and
(ii) a good standing and tax good standing certificate for the Company
and the Parent and each Subsidiary party to any Credit Document from the
Secretary of State of its state of incorporation and each state where such
Person is qualified to do business as a foreign corporation as of a recent date;
(d) Legal Opinions.
(i) An opinion of Varnum, Riddering, Schmidt & Howlett LLP, special
Michigan counsel to the Company, and addressed to the Agent and the Lenders,
substantially in the form of Exhibit D-1; and
(ii) An opinion of Kirkland & Ellis, special New York counsel to the
Company, and addressed to the Agent and the Lenders, substantially in the form
of Exhibit D-2.
(e) Payment of Fees. Evidence of payment by the Company of all accrued and
unpaid reasonable fees, costs and expenses to the extent then due and payable on
the Restatement Date, together with Attorney Costs of the Agent to the extent
invoiced prior to or on the Restatement Date, plus such additional amounts of
Attorney Costs as shall constitute the Agent's reasonable estimate of Attorney
Costs incurred or to be incurred by it through the closing proceedings (provided
that such estimate shall not thereafter preclude final settling of accounts
between the Company and the Agent); including any such costs, fees and expenses
arising under or referenced in Sections 2.10 and 10.4;
(f) Guaranties. The Amended and Restated Guaranty executed by each
Guarantor;
(g) Certificate. A certificate signed by a Responsible Officer of the
Company, dated as of the Restatement Date, stating that:
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(i) the representations and warranties contained in Article V are true
and correct in all material respects on and as of such date, as though made on
and as of such date;
(ii) no Default or Event of Default exists or would result from the
Credit Extensions outstanding or to be made on the Restatement Date; and
(iii) there has occurred since December 31, 1998, no event or circumstance
that has resulted or could reasonably be expected to result in a Material
Adverse Effect;
(h) Lien Searches. Lien and judgment searches as the Agent shall have
requested, and such termination statements or other documents as may be
necessary to confirm that none of the property of the Company and its
Subsidiaries is subject to Liens in favor of any Persons (other than Permitted
Liens);
(i) Year 2000. Receipt and review, with results reasonably satisfactory
to the Agent and the Lenders, of information confirming that (i) the Company and
its Subsidiaries are taking all necessary and appropriate steps to ascertain the
extent of, and to quantify and successfully address, business and financial
risks facing the Company and its Subsidiaries as a result of what is commonly
referred to as the "Year 2000 Problem" (i.e., the inability of certain computer
applications to recognize correctly and perform date-sensitive functions
involving certain dates prior to and after December 31, 1999), including risks
resulting from the failure of key vendors and customers of the Company and its
Subsidiaries to successfully address the Year 2000 Problem, and (b) the
Company's and its Subsidiaries' material computer applications and those of its
key vendors and customers will, on a timely basis, adequately address the Year
2000 Problem in all material respects; and
(j) Other Documents. Such other approvals, opinions, documents or
materials as the Agent or any Lender may reasonably request.
4.2 Conditions to Conversion of Term A Dollar Loans to Term A Euro
Loans. The ability of the Company to convert Term A Dollar Loans to Term A Euro
Loans or to designate an Approved Foreign Subsidiary Borrower for such Term A
Euro Loans and the obligation of the Term A Dollar Lenders to convert a portion
of their Term A Dollar Loans to Term A Euro Loans is subject to the condition
that the Agent shall have received on or before the Euro Conversion Date all of
the following in form and substance reasonably satisfactory to the Agent:
(a) Notice of Conversion. The Agent and each Term A Lender shall have
received a Notice of Euro Conversion duly executed by the Company and, if
applicable, the Approved Foreign Subsidiary Borrower.
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(b) Approved Foreign Subsidiary Borrower Documents. If the Notice of
Euro Conversion designates an Approved Foreign Subsidiary Borrower as the new
obligor with respect to such Term A Euro Loans:
(i) copies of the resolution of the board of directors or similar
governing body of such Approved Foreign Subsidiary Borrower authorizing the
assumption of the Obligations with respect to such Term A Euro Loans and
transactions contemplated thereby;
(ii) a copy of the Organization Documents (or the applicable
foreign equivalent thereof) of such Approved Foreign Subsidiary Borrower
certified when practicable by a Governmental Authority;
(iii) an opinion of legal counsel for the jurisdiction of such
Approved Foreign Subsidiary Borrower's organization in form and substance
satisfactory to Agent, and
(c) such other opinions, documents or materials as Agent or any Term A
Lender may reasonably request.
4.3 Conditions to Italian Euro Term Loan. The obligation of the Italian
Euro Term Lender to make its Italian Euro Term Loan hereunder is subject to the
condition that the Agent shall have received on or before the Italian Euro Term
Loan Closing Date all of the following, in form and substance reasonably
satisfactory to the Agent and the Italian Euro Term Lender:
(a) Notice of Borrowing. A Notice of Borrowing two (2) Business Days
prior to the proposed Italian Euro Term Loan Closing Date;
(b) Legal Opinion. An opinion of special Italian counsel to the Italian
Borrower, and addressed to the Agent and the Italian Euro Term Lender;
(c) Italian Euro Term Note. The Italian Euro Term Note executed by the
Italian Borrower;
(d) Certificate. A certificate signed by a Responsible Officer of the
Italian Borrower, dated as of the Italian Euro Term Loan Closing Date, stating
that:
(i) the representations and warranties contained in Article V are
true and correct in all material respects on and as of such date, as though made
on and as of such date; and
(ii) no Default or Event of Default exists or would result from
the Credit Extensions outstanding or to be made on the Italian Euro Term
Loan Closing Date; and
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(iii) there has occurred since December 31, 1998, no event or
circumstance that has resulted or could reasonably be expected to result in a
Material Adverse Effect;
(e) the Organization Documents (or the foreign equivalent thereof) of
the Italian Borrower as in effect on the Italian Euro Term Loan Closing Date,
certified by the Secretary or Assistant Secretary of such Person as of the
Italian Euro Term Loan Closing Date; and
(f) such other opinions, documents or materials as the Agent or the
Italian Euro Term Lender may reasonably request.
4.4 Conditions to All Credit Extensions and Continuations/Conversions..
The obligation of each Lending Party to make any Credit Extension (including its
initial Loan) or to continue or convert any Loan under Section 2.4 or Section
2.1(b)(ii) is subject to the satisfaction of the following conditions precedent
on the relevant date of such Credit Extension, Conversion/Continuation Date or
Euro Conversion Date:
(a) Notice of Borrowing, Letter of Credit Related Document or
Conversion/Continuation. The Agent shall have received a Notice of Borrowing,
Letter of Credit Related Document, a Notice of Conversion/Continuation or Notice
of Euro Conversion, as applicable;
(b) Continuation of Representations and Warranties. The representations
and warranties in Article V shall be true and correct in all material respects
on and as of such Borrowing Date, Issuance Date or Conversion/Continuation Date
with the same effect as if made on and as of such Borrowing Date, Issuance Date
or Conversion/Continuation Date (except to the extent such representations and
warranties expressly refer to an earlier date, in which case they shall be true
and correct in all material respects as of such earlier date); and
(c) No Existing Default. No Default or Event of Default shall exist or
shall result from such Credit Extension or continuation or conversion.
Each Notice of Borrowing, Letter of Credit Related Document, Notice of
Conversion/Continuation and Notice of Euro Conversion submitted by any Credit
Party hereunder shall constitute a representation and warranty by the Company
hereunder, as of the date of each such notice and as of each Borrowing Date,
Issuance Date or Conversion/Continuation Date, as applicable, that the
conditions in this Section 4.4 are satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
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The Company and each Foreign Subsidiary Borrower (with respect to itself
and its Subsidiaries) represents and warrants to the Agent and each Lending
Party that:
5.1 Corporate Existence and Power. The Parent, the Company and each of its
Subsidiaries:
(a) is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation;
(b) has the power and authority and all governmental licenses,
authorizations, consents and approvals to own its assets, carry on its business
and to execute, deliver, and perform its obligations under the Credit Documents
to which it is a party;
(c) is duly qualified as a foreign corporation and is licensed and in good
standing under the laws of each jurisdiction where failure to be so qualified or
licensed would reasonably be expected to have a Material Adverse Effect; and
(d) is in compliance with all Requirements of Law; except, in each case
referred to in clause (c) or clause (d) of this Section 5.1, to the extent that
the failure to be so could not reasonably be expected to have a Material Adverse
Effect.
5.2 Corporate Authorization; No Contravention. The execution, delivery and
performance by the Company and the Parent and its Subsidiaries of this Agreement
and each other Credit Document to which such Person is a party have been duly
authorized by all necessary corporate action, and do not:
(a) contravene the terms of any of such Person's Organization Documents;
(b) conflict with or result in any breach or contravention of, or the
creation of any Lien under, any document evidencing any Contractual Obligation
to which such Person is a party which conflict or breach would reasonably be
likely to have a Material Adverse Effect, or any order, injunction, writ or
decree of any Governmental Authority to which such Person or its property is
subject; or
(c) violate any Requirement of Law.
5.3 Governmental Authorization. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, the Parent, the
Company or any of its Subsidiaries of this Agreement or any other Credit
Document except (a) to the extent obtained or made prior to the Original Closing
Date or (b) which would not reasonably be expected to have a Material Adverse
Effect.
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5.4 Binding Effect. This Agreement and each other Credit Document to which
the Company or the Parent or any of its Subsidiaries is a party constitute the
legal, valid and binding obligations of the Company, the Parent or any such
Subsidiary to the extent it is a party thereto, enforceable against such Person
in accordance with their respective terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, or similar laws affecting the
enforcement of creditors' rights generally or by equitable principles relating
to enforceability.
5.5 Litigation. Except as specifically disclosed in Schedule 5.5, there are
no actions, suits, proceedings, claims or disputes pending, or to the best
knowledge of the Company, threatened or contemplated, at law, in equity, in
arbitration or before any Governmental Authority, against the Company, the
Parent or any of its Subsidiaries or any of their respective properties which:
(a) purport to affect or pertain to this Agreement or any other Credit
Document, or any of the transactions contemplated hereby or thereby; or
(b) if determined adversely to the Company, the Parent or its Subsidiaries,
would reasonably be expected to have a Material Adverse Effect. No injunction,
writ, temporary restraining order or any order of any nature has been issued by
any court or other Governmental Authority purporting to enjoin or restrain the
execution, delivery or performance of this Agreement or any other Credit
Document, or directing that the transactions provided for herein or therein not
be consummated as herein or therein provided.
5.6 No Default. No Default or Event of Default exists or would result from
the incurring of any Obligations by any Credit Party. As of the Original Closing
Date, neither the Company nor any Subsidiary is in default under or with respect
to any Contractual Obligation in any respect which, individually or together
with all such defaults, could reasonably be expected to have a Material Adverse
Effect.
5.7 ERISA Compliance. Except as specifically disclosed in Schedule 5.7:
(a) Each Plan is in compliance in all material respects with the applicable
provisions of ERISA, the Code and other federal or state law. Each Plan which is
intended to qualify under section 401(a) of the Code has received a favorable
determination letter from the IRS (or a request has been or will be filed with
the IRS within the applicable remedial amendment period) and to the best
knowledge of the Company, nothing has occurred which would cause the loss of
such qualification. The Company and each ERISA Affiliate have made all required
contributions to any Plan subject to section 412 of the Code, and no application
for a funding waiver or an extension of any amortization period pursuant to
section 412 of the Code has been made with respect to any Plan.
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(b) There are no pending or, to the best knowledge of Company, threatened
claims, actions or lawsuits, or action by any Governmental Authority, with
respect to any Plan which has resulted or could reasonably be expected to result
in a Material Adverse Effect. There has been no prohibited transaction or
violation of the fiduciary responsibility rules with respect to any Plan which
has resulted or could reasonably be expected to result in a Material Adverse
Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to occur;
(ii) no Pension Plan has any Unfunded Pension Liability which has resulted or
would reasonably be expected to result in a Material Adverse Effect; (iii)
neither the Company nor any ERISA Affiliate has incurred, or reasonably expects
to incur, any liability under Title IV of ERISA with respect to any Pension Plan
(other than premiums due and not delinquent under section 4007 of ERISA) which
has resulted or would reasonably be expected to result in a Material Adverse
Effect; (iv) neither the Company nor any ERISA Affiliate has incurred, or
reasonably expects to incur, any liability (and no event has occurred which,
with the giving of notice under section 4219 of ERISA, would result in such
liability) under section 4201 or 4243 of ERISA with respect to a Multiemployer
Plan; and (v) neither the Company nor any ERISA Affiliate has engaged in a
transaction that could be subject to section 4069 or 4212(c) of ERISA.
5.8 Use of Proceeds; Margin Regulations. The Letters of Credit and
proceeds of the Loans are to be used solely for the purposes set forth in and
permitted by Sections 6.12 and 7.7. Neither the making of the Loans hereunder or
use of the proceeds thereof nor the Issuance of any Letter of Credit will
violate Regulations T, U or X of the FRB and no Letter of Credit or part of the
proceeds of any Loan will be used to purchase or carry or to extend credit for
the purpose of purchasing or carrying Margin Stock.
5.9 Title to Properties. The Company and each Subsidiary have good record
and marketable title in fee simple to, or valid leasehold interests in, all real
property necessary or used in the ordinary conduct of their respective
businesses, except for such defects in title as could not, individually or in
the aggregate, have a Material Adverse Effect. As of the Restatement Date, the
property of the Company and its Subsidiaries is subject to no Liens, other than
Permitted Liens.
5.10 Taxes. The Company and its Subsidiaries have filed all Federal and
other material tax returns and reports required to be filed, and have paid all
Federal and other material taxes, assessments, fees and other governmental
charges levied or imposed upon them or their properties, income or assets
otherwise due and payable, except those which are being contested in good faith
by appropriate proceedings and for which adequate reserves have been provided in
accordance with GAAP. There is no proposed tax assessment against the Company or
any Subsidiary that would, if made, have a Material Adverse Effect.
5.11 Financial Condition.
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(a) The audited consolidated financial statements of the Parent and its
Subsidiaries dated December 31, 1998, and the related consolidated statements of
income and operations, shareholders' equity and cash flows for the fiscal year
ended on that date:
(i) were prepared in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly noted
therein;
(ii) fairly present in all material respects the financial condition
of the Parent and its Subsidiaries as of the date thereof and results of
operations for the period covered thereby; and
(iii) except as disclosed in Schedule 5.11, show all material
indebtedness and other liabilities, direct or contingent, of the Parent and its
consolidated Subsidiaries as of the date thereof, including liabilities for
taxes, material commitments and Contingent Obligations.
(b) Since December 31, 1998, there has been no Material Adverse Effect.
5.12 Environmental Matters.
(a) Except as disclosed in Schedule 5.12, the on-going operations of the
Company and each of its Subsidiaries comply in all respects with all
Environmental Laws, except for such non-compliance which would not (if enforced
in accordance with applicable law) reasonably be expected to have a Material
Adverse Effect.
(b) Except as disclosed in Schedule 5.12, the Company and each of its
Subsidiaries have obtained all licenses, permits, authorizations and
registrations required under any Environmental Law and necessary for their
respective ordinary course operations ("Environmental Permits"), all such
Environmental Permits are in good standing, and the Company and each of its
Subsidiaries are in compliance with all material terms and conditions of such
Environmental Permits, except where the failure to obtain, maintain in good
standing or comply with such Environmental Permits would not reasonably be
expected to have a Material Adverse Effect.
(c) Except as disclosed in Schedule 5.12, none of the Company, any of its
Subsidiaries or any of their respective present property or operations is
subject to any outstanding written order from or agreement with any Governmental
Authority, nor subject to any judicial or docketed administrative proceeding,
respecting any Environmental Law, Environmental Claim or Hazardous Material,
except for any such order, agreement or proceeding which would not reasonably be
expected to have a Material Adverse Effect.
(d) Except as disclosed in Schedule 5.12, there are no Hazardous
Materials or other conditions or circumstances existing with respect to any real
property of the
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Company or any Subsidiary, or arising from operations prior to
the Original Closing Date of the Company or any of its Subsidiaries that would
reasonably be expected to give rise to Environmental Claims for any such
condition, circumstance or property where such Environmental Claim would, if
adversely determined, reasonably be expected to have a Material Adverse Effect.
Except as disclosed in Schedule 5.12, or except as would not reasonably be
expected to have a Material Adverse Effect, (i) neither the Company nor any
Subsidiary owns or operates any underground storage tanks (x) that are not
properly registered or permitted under applicable Environmental Laws, or (y)
that are leaking or disposing of Hazardous Materials off-site, and (ii) the
Company and its Subsidiaries have complied with all notification requirements
under Title III of CERCLA and all other Environmental Laws.
5.13 Regulated Entities. None of the Company, any Person controlling the
Company, or any Subsidiary is an "investment company" within the meaning of the
Investment Company Act of 1940. The Company is not subject to regulation under
the Public Utility Holding Company Act of 1935, the Federal Power Act, the
Interstate Commerce Act, any state public utilities code, or any other Federal
or state statute or regulation limiting its ability to incur Indebtedness.
5.14 Copyrights, Patents, Trademarks and Licenses, etc. The Company or its
Subsidiaries own or are licensed or otherwise have the right to use all of the
patents, trademarks, service marks, trade names, copyrights, contractual
franchises, authorizations and other rights that are reasonably necessary for
the operation of their respective businesses, without, to the best knowledge of
the Company, conflict with the rights of any other Person. Except as
specifically disclosed in Schedule 5.5, to the best knowledge of the Company:
(i) no slogan or other advertising device, product, process, method, substance,
part or other material now employed, or now contemplated to be employed, by the
Company or any Subsidiary infringes upon any rights held by any other Person;
and (ii) no claim or litigation regarding any of the foregoing is pending or
threatened, and no patent, invention, device, application, principle or any
statute, law, rule, regulation, standard or code is pending or, to the knowledge
of the Company, proposed, which, in either case, could reasonably be expected to
have a Material Adverse Effect.
5.15 Subsidiaries. As of the Restatement Date, the Company has no
Subsidiaries other than those specifically disclosed in part (a) of Schedule
5.15 and has no equity investments in any other corporation or entity other than
those specifically disclosed in part (b) of Schedule 5.15.
5.16 Insurance. Except as specifically disclosed in Schedule 5.16, the
properties of the Company and its Subsidiaries are insured with financially
sound and reputable insurance companies not Affiliates of the Company, in such
amounts, with such deductibles and covering such risks as are customarily
carried by companies engaged in similar businesses and owning similar properties
in localities where the Company or such Subsidiary operates.
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5.17 Solvency. The Company, the Parent and each of its Subsidiaries are
Solvent.
5.18 Full Disclosure. None of the representations or warranties made by the
Company or any Subsidiary in the Credit Documents as of the date such
representations and warranties are made or deemed made, and none of the
statements contained in any exhibit, report, statement or certificate furnished
by or on behalf of the Company or any Subsidiary in connection with the Credit
Documents (including the offering and disclosure materials delivered by or on
behalf of the Company to the Lenders prior to the Original Closing Date),
contains any untrue statement of a material fact or omits any material fact
required to be stated therein or necessary to make the statements made therein,
in light of the circumstances under which they are made, not misleading as of
the time when made or delivered.
5.19 Year 2000 Compliance. The Company and its Subsidiaries have conducted
a comprehensive review and assessment of its computer applications, and have
made inquiry of their material suppliers, vendors and customers, with respect to
any defect in computer software, data bases, hardware, controls and peripherals
related to the occurrence of the year 2000 or the use of any date after December
31, 1999 in connection therewith. Based on the foregoing review, assessment and
inquiry, the Company believes that no such defect could reasonably be expected
to have a Material Adverse Effect.
ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Lender shall have a Commitment hereunder, or any
Credit Extension or other Obligation (other than Obligations with respect to
indemnification hereunder not due and payable) shall remain outstanding, unpaid
or unsatisfied, unless the Required Lenders and the Required Term Lenders waive
compliance in writing:
6.1 Financial Statements. The Company shall deliver to the Agent (which
shall furnish to each Lender in a timely manner):
(a) as soon as available, but not later than one hundred twenty days
after the end of each fiscal year, a copy of the audited consolidated balance
sheet of the Parent and its Subsidiaries as at the end of such year and the
related consolidated statements of income and operations, shareholders' equity
and cash flows for such year, setting forth in each case in comparative form the
figures for the previous fiscal year, and accompanied by the opinion of Arthur
Andersen LLP or another nationally-recognized independent public accounting firm
("Independent Auditor") which report shall state that such consolidated
financial statements present fairly in all material respects the financial
position and the results of operations of the Parent and its Subsidiaries for
the periods
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indicated in conformity with GAAP applied on a basis consistent with
prior years. Such opinion shall not be qualified or limited because of a
restricted or limited examination by the Independent Auditor of any material
portion of the Parent's or any of its Subsidiaries' records; and
(b) as soon as available, but not later than 60 days after the end of each
of the first three fiscal quarters of each fiscal year, a copy of the unaudited
consolidated balance sheet of the Parent and its Subsidiaries as of the end of
such quarter and the related consolidated statements of income, shareholders'
equity and cash flows for the period commencing on the first day of such year
and ending on the last day of such quarter, and certified by a Responsible
Officer of the Parent as fairly presenting, in all material respects and in
accordance with GAAP (subject to ordinary, good faith year-end audit adjustments
and the absence of required footnotes), the financial position and the results
of operations of the Parent and its Subsidiaries;
6.2 Certificates; Other Information. The Company shall furnish to the
Agent, with sufficient copies for each Lender:
(a) concurrently with the delivery of the financial statements referred to
in Section 6.1(a), a certificate of the Independent Auditor stating that in
making the examination necessary therefor no knowledge was obtained of any
Default or Event of Default relating to financial matters, except as specified
in such certificate;
(b) concurrently with the delivery of the financial statements referred to
in Sections 6.1(a) and (b), a Compliance Certificate executed by a Responsible
Officer;
(c) promptly, copies of all financial statements and reports that the
Parent sends to its shareholders, and copies of all financial statements and
regular, periodical or special reports (including Forms 10-K, 10-Q and 8-K) that
the Parent or any of its Subsidiaries may make to, or file with, the SEC; and
(d) promptly, such additional information regarding the business, financial
or corporate affairs of the Company or the Parent or any of its Subsidiaries as
the Agent, at the request of any Lender, may from time to time reasonably
request.
6.3 Notices. The Company or any Foreign Subsidiary Borrower shall promptly
notify the Agent:
(a) of the occurrence of any Default or Event of Default; (b) of (i) any
breach or non-performance of, or any default under, any Contractual Obligation
of the Company or any of its Subsidiaries which would reasonably be expected to
result in a Material Adverse Effect; and (ii) any dispute, litigation,
investigation, proceeding or suspension which may exist at any time between the
Company or any of its Subsidiaries and any
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Governmental Authority which would reasonably be expected to result in a
Material Adverse Effect;
(b) of the commencement of, or any material development in, any litigation
or proceeding affecting the Company or any Subsidiary (i) in which damages are
claimed or injunctive or similar relief is sought and which, if adversely
determined, would reasonably be expected to have a Material Adverse Effect, or
(ii) in which the relief sought is an injunction or other stay of the
performance of this Agreement or any other Credit Document;
(c) upon, but in no event later than 10 days after, becoming aware of (i)
any enforcement, cleanup, removal or other governmental or regulatory actions
instituted, completed or threatened in writing against the Company or any
Subsidiary or any of their respective properties pursuant to any applicable
Environmental Laws where such action would reasonably be expected to have a
Material Adverse Effect, (ii) all other Environmental Claims that would
reasonably be expected to have a Material Adverse Effect, and (iii) any
environmental or similar condition on any real property adjoining or in the
vicinity of the property of the Company or any Subsidiary that could reasonably
be anticipated to cause such property of the Company or any Subsidiary or any
part thereof to be subject to any material restrictions on the ownership,
occupancy, transferability or use of such property under any Environmental Laws;
(d) of any other litigation or proceeding affecting the Company or any of
its Subsidiaries which the Company would be required to report to the SEC
pursuant to the Exchange Act, within four days after reporting the same to the
SEC;
(e) of the occurrence of any of the following events affecting the Company
or any ERISA Affiliate (but in no event more than 10 days after such event), and
deliver to the Agent and each Lender a copy of any notice with respect to such
event that is filed with a Governmental Authority and any notice delivered by a
Governmental Authority to the Company or any ERISA Affiliate with respect to
such event:
(i) an ERISA Event;
(ii) a material increase in the Unfunded Pension Liability of any
Pension Plan;
(iii) the adoption of, or the commencement of contributions to, any
Plan subject to section 412 of the Code by the Company or any ERISA Affiliate;
or
(iv) the adoption of any amendment to a Plan subject to section 412
of the Code, if such amendment results in a material increase in contributions
or Unfunded Pension Liability;
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(f) of any material change in accounting policies or financial reporting
practices by the Company or any of its consolidated Subsidiaries;
(g) of the entry by the Company or one of its Subsidiaries into any
Specified Swap Contract, together with the details thereof;
(h) of the occurrence of any default, event of default, termination event
or other event under any Specified Swap Contract that after the giving of
notice, passage of time or both, would permit either counterparty to such
Specified Swap Contract to terminate early any or all trades relating to such
contract; and
(i) upon the request from time to time of the Agent, the Swap Termination
Values, together with a description of the method by which such amounts were
determined, relating to any then-outstanding Swap Contracts to which the Company
or any of its Subsidiaries is party.
Each notice under this Section 6.3 shall be accompanied by a written
statement by a Responsible Officer setting forth details of the occurrence
referred to therein, and stating what action the Company or any affected
Subsidiary proposes to take with respect thereto and at what time. Each notice
under Section 6.3(a) shall describe with particularity any and all clauses or
provisions of this Agreement or other Credit Document that have been breached or
violated.
6.4 Preservation of Corporate Existence, etc. The Company shall, and shall
cause each Subsidiary to:
(a) preserve and maintain in full force and effect its existence and good
standing under the laws of its state or jurisdiction of incorporation,
organization or formation;
(b) preserve and maintain in full force and effect all governmental rights,
privileges, qualifications, permits, licenses and franchises necessary in the
normal conduct of its business except in connection with transactions permitted
by Section 7.3 and sales of assets permitted by Section 7.2; and
(c) preserve or renew all of its registered patents, trademarks, trade
names and service marks, the non-preservation of which would reasonably be
expected to have a Material Adverse Effect.
6.5 Maintenance of Property. The Company shall maintain, and shall cause
each Subsidiary to maintain, and preserve all its property which is used or
useful in its business in good working order and condition, ordinary wear and
tear and damage by casualty excepted and make all necessary repairs thereto and
renewals and replacements
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thereof except where the failure to do so could not reasonably be expected to
have a Material Adverse Effect.
6.6 Insurance. The Company shall maintain, and shall cause each of its
Subsidiaries to maintain, with financially sound and reputable independent
insurers, insurance with respect to its properties and business against loss or
damage of the kinds customarily insured against by Persons engaged in the same
or similar business, of such types and in such amounts as are customarily
carried under similar circumstances by such other Persons, including workers'
compensation insurance, public liability and property and casualty insurance,
which amount shall not be reduced by the Company in the absence of thirty days'
prior notice to the Agent. Upon request of the Agent or any Lender, the Company
shall furnish the Agent, with sufficient copies for each Lender, at reasonable
intervals (but not more than once per calendar year) a certificate of a
Responsible Officer of the Company (and, if requested by the Agent, any
insurance broker of the Company) setting forth the nature and extent of all
insurance maintained by the Company and its Subsidiaries in accordance with this
Section (and which, in the case of a certificate of a broker, was placed through
such broker).
6.7 Payment of Obligations. The Company shall, and shall cause each
Subsidiary to, pay and discharge as the same shall become due and payable, all
their respective obligations and liabilities, including:
(a) all (x) federal and other material tax liabilities, assessments and
governmental charges or levies upon it or its properties or assets, and (y) all
lawful claims which, if unpaid, would by law become a Lien upon its property,
unless the same are being contested in good faith by appropriate proceedings and
adequate reserves in accordance with GAAP are being maintained by the Company or
such Subsidiary; and
(b) all indebtedness, as and when due and payable, but subject to any
subordination provisions contained in any instrument or agreement evidencing
such Indebtedness.
6.8 Compliance with Laws. The Company shall comply, and shall cause each
Subsidiary to comply, in all material respects with all Requirements of Law of
any Governmental Authority having jurisdiction over it or its business
(including the Federal Fair Labor Standards Act), except (a) such as may be
contested in good faith or as to which a bona fide dispute may exist or (b)
where such noncompliance would not reasonably be expected to have a Material
Adverse Effect.
6.9 Compliance with ERISA. The Company shall, and shall cause each of its
ERISA Affiliates to: (a) maintain each Plan in compliance in all material
respects with the applicable provisions of ERISA, the Code and other federal or
state law; (b) cause each Plan which is qualified under section 401(a) of the
Code to maintain such
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qualification; and (c) make all required contributions to any Plan subject to
section 412 of the Code.
6.10 Inspection of Property and Books and Records. The Company shall
maintain and shall cause each Subsidiary to maintain proper books of record and
account, in which full, true and correct entries in conformity with GAAP
consistently applied shall be made of all financial transactions and matters
involving the assets and business of the Company and such Subsidiary. The
Company shall permit, and shall cause each Subsidiary to permit, representatives
and independent contractors of the Agent or any Lender to visit and inspect any
of their respective properties, to examine their respective corporate, financial
and operating records, and make copies thereof or abstracts therefrom, and to
discuss their respective affairs, finances and accounts with their respective
directors, officers, and independent public accountants, at such reasonable
times during normal business hours and as often as may be reasonably desired,
upon reasonable advance notice to the Company; provided when an Event of Default
exists the Agent or any Lender may do any of the foregoing at the expense of the
Company at any time during normal business hours and without advance notice.
6.11 Environmental Laws.
(a) The Company shall, and shall cause each Subsidiary to, conduct its
operations and keep and maintain its property in compliance with all
Environmental Laws except for such noncompliance that would not (if enforced in
accordance with applicable law) reasonably be expected to have a Material
Adverse Effect.
(b) Upon the written request of the Agent or any Lender, the Company shall
submit, and cause each of its Subsidiaries to submit, to the Agent with
sufficient copies for each Lender, at the Company's sole cost and expense, at
reasonable intervals, a report providing an update of the status of any
environmental, health or safety compliance, hazard or liability issue identified
in any notice or report required pursuant to Section 6.3(c), that would
reasonably be expected to have a Material Adverse Effect.
6.12 Use of Proceeds. The Company shall use the proceeds of the Loans, for
working capital, Capital Expenditures, and other general corporate purposes, not
in contravention of any Requirement of Law or of any Credit Document.
6.13 Further Assurances.
(a) The Company shall ensure that all written information, exhibits and
reports furnished to the Agent or the Lenders do not contain any untrue
statement of a material fact and do not omit to state any material fact or any
fact necessary to make the statements contained therein not misleading in light
of the circumstances in which made, and will promptly disclose to the Agent and
the Lenders and correct any defect or error
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that may be discovered therein or in any Credit Document or in the execution,
acknowledgement or recordation thereof.
(b) Promptly upon request by the Agent or the Required Lenders or the
Required Term Lenders, the Company shall (and shall cause any of its
Subsidiaries to) do, execute, acknowledge, deliver, record, re-record, file,
re-file, register and re-register, any and all such further acts, deeds,
conveyances, security agreements, mortgages, assignments, estoppel certificates,
financing statements and continuations thereof, termination statements, notices
of assignment, transfers, certificates, assurances and other instruments the
Agent or such Lenders, as the case may be, may reasonably require from time to
time in order (i) to carry out more effectively the purposes of this Agreement
or any other Credit Document, and (ii) to better assure, convey, grant, assign,
transfer, preserve, protect and confirm to the Agent and Lenders the rights
granted or now or hereafter intended to be granted to the Lenders under any
Credit Document or under any other document executed in connection therewith.
(c) The Company shall (i) cause each Domestic Subsidiary and each Foreign
Subsidiary that is a Material Subsidiary but is not a Foreign 956 Subsidiary
which is acquired or formed after the Restatement Date to enter into the
Guaranty and (ii) cause the record owner of any Foreign 956 Subsidiary to enter
into a Pledge Agreement and to pledge 65% of the outstanding shares of stock of
such Foreign 956 Subsidiary to the Agent.
6.14 Year 2000. The Company will take, and will cause each of
its Subsidiaries to take, all such actions as are reasonably necessary to
successfully implement a program to assure that the Year 2000 Problem will not
have a Material Adverse Effect. At the request of the Agent, the Company will
provide a description of such program, together with any updates or progress
reports with respect thereto.
ARTICLE VII
NEGATIVE COVENANTS
So long as any Lender shall have any Revolving Commitment hereunder,
or any Loan or other Obligation (other than Obligations with respect to
indemnification hereunder not due and payable) shall remain outstanding, unpaid
or unsatisfied, unless the Required Lenders and the Required Term Lenders waive
compliance in writing:
7.1 Limitation on Liens; Negative Pledge. The Company shall not, and shall
not suffer or permit any Subsidiary to, directly or indirectly, make, create,
incur, assume or suffer to exist any Lien upon or with respect to any part of
its property, whether now owned or hereafter acquired, other than the following
(collectively, the "Permitted Liens"):
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(a) any Lien existing on property of the Company or any Subsidiary on the
Original Closing Date and set forth in Schedule 7.1 securing Indebtedness
outstanding on such date;
(b) any Lien created under any Credit Document;
(c) Liens for taxes, fees, assessments or other governmental charges which
are not delinquent or remain payable without penalty, or to the extent that
non-payment thereof is permitted by Section 6.7, provided that no notice of lien
has been filed or recorded under the Code;
(d) carriers', warehousemen's, mechanics', landlords', materialmen's,
repairmen's or other similar Liens arising in the ordinary course of business
which are not delinquent or remain payable without penalty or which are being
contested in good faith and by appropriate proceedings, which proceedings have
the effect of preventing the forfeiture or sale of the property subject thereto;
(e) Liens (other than any Lien imposed by ERISA) consisting of pledges or
deposits required in the ordinary course of business in connection with workers'
compensation, unemployment insurance and other social security legislation;
(f) Liens on the property of the Company or any of its Subsidiaries
securing (i) the non-delinquent performance of bids, trade contracts (other than
for borrowed money), leases, licenses and statutory obligations, (ii) contingent
obligations on surety and appeal bonds, and (iii) other non-delinquent
obligations of a like nature; in each case, incurred in the ordinary course of
business, provided all such Liens in the aggregate would not (even if enforced)
cause a Material Adverse Effect;
(g) Liens consisting of judgment or judicial attachment liens, provided
that the enforcement of such Liens is effectively stayed and all such Liens in
the aggregate at any time outstanding for the Company and its Subsidiaries do
not exceed $10,000,000 (or its equivalent in other currencies);
(h) easements, rights-of-way, restrictions and other similar encumbrances
incurred in the ordinary course of business which, in the aggregate, are not
substantial in amount, and which do not in any case materially detract from the
current use of the property subject thereto or interfere with the ordinary
conduct of the businesses of the Company and its Subsidiaries;
(i) Liens on assets of Persons which become Subsidiaries after the Original
Closing Date, provided that such Liens existed at the time the respective
Persons became Subsidiaries and were not created in anticipation thereof;
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(j) purchase money security interests on any property acquired or held by
the Company or its Subsidiaries in the ordinary course of business, securing
Indebtedness incurred or assumed for the purpose of financing all or any part of
the cost of acquiring such property, provided that (i) any such Lien attaches to
such property concurrently with or within 20 days after the acquisition thereof,
(ii) such Lien attaches solely to the property so acquired in such transaction,
(iii) the principal amount of the debt secured thereby does not exceed 100% of
the cost of such property, and (iv) the principal amount of the Indebtedness
secured by any and all such purchase money security interests shall not at any
time exceed, together with Indebtedness permitted under Section 7.5(d),
$50,000,000 (or its equivalent in other currencies);
(k) Liens securing obligations in respect of capital leases on assets
subject to such leases, provided that such capital leases are otherwise
permitted hereunder;
(l) Liens arising solely by virtue of any statutory or common law provision
relating to banker's liens, rights of set-off or similar rights and remedies as
to deposit accounts or other funds maintained with a creditor depository
institution, provided that (i) such deposit account is not a dedicated cash
collateral account and is not subject to restrictions against access by the
Company in excess of those set forth by regulations promulgated by the FRB, and
(ii) such deposit account is not intended by the Company or any Subsidiary to
provide collateral to the depository institution;
(m) Liens arising in connection with any Permitted Receivables Purchase
Facility;
(n) Liens securing Indebtedness permitted by Section 7.5(g);
(o) Liens of any landlord with respect to leased real property of the
Company or any of its Subsidiaries arising in the ordinary course of business
for sums not overdue or being contested in good faith by appropriate proceedings
and for which adequate reserves in accordance with GAAP shall have been set
aside on the books of the Company or such Subsidiary, as the case may be; and
(p) Liens of the Company not included in clauses (a) through (o) above,
provided that the aggregate principal amount of the Indebtedness secured by
Liens permitted under this clause (p) shall not at any time exceed $25,000,000
(or its equivalent in other currencies).
7.2 Disposition of Assets. The Company shall not, and shall not suffer or
permit any Subsidiary to, directly or indirectly, sell, assign, lease, convey,
transfer or otherwise dispose of (whether in one or a series of transactions)
any property (including accounts and notes receivable, with or without recourse)
or enter into any agreement to do any of the foregoing, except:
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(a) dispositions of inventory, or used, obsolete, uneconomic, worn-out or
surplus equipment or intellectual property, all in the ordinary course of
business;
(b) the sale of equipment to the extent that such equipment is exchanged
for credit against the purchase price of similar replacement equipment, or the
proceeds of such sale are reasonably promptly applied to the purchase price of
such replacement equipment;
(c) dispositions of Permitted Receivables pursuant to Permitted Receivables
Purchase Facilities;
(d) sales, transfers and leases between the Company and any of its
Subsidiaries or between any of its Subsidiaries and another of its Subsidiaries
for book value;
(e) licenses or leases of property in the ordinary course of business;
(f) Investments permitted pursuant to Section 7.4;
(g) discounts of accounts receivable by the Company or any of its
Subsidiaries in the ordinary course of collection;
(h) the transactions set forth on Schedule 7.2; and
(i) dispositions not otherwise permitted hereunder which are made for fair
market value; provided that (i) at the time of any disposition, no Event of
Default shall exist or shall result from such disposition, (ii) the aggregate
sales price from such disposition shall be paid in cash, and (iii) the aggregate
value of all assets so sold by the Company and its Subsidiaries, together, in
any fiscal year shall not exceed 10% of the Consolidated Tangible Assets for
such fiscal year measured as of the date of the last such sale at any time in
such fiscal year based on the last financial statements delivered by the Company
pursuant to Section 6.1.
7.3 Consolidations and Mergers. The Company shall not, and shall not suffer
or permit any Subsidiary to, merge, consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to or in favor of any Person, except:
(a) any Subsidiary may merge with the Company, provided that the Company
shall be the continuing or surviving corporation, or with any one or more
Subsidiaries, and provided, further, that if any transaction shall be between a
Subsidiary and a Wholly-Owned Subsidiary, the Wholly-Owned Subsidiary shall be
the continuing or surviving corporation;
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(b) any Subsidiary may sell all or substantially all of its assets (upon
voluntary liquidation, dissolution or otherwise), to the Company or another
Wholly-Owned Subsidiary;
(c) the Company and its Subsidiaries may make Permitted Acquisitions; and
(d) transactions permitted under Section 7.2.
7.4 Loans and Investments. The Company shall not, or suffer or permit any
Subsidiary to, make, or make any commitment to make, any Investment in any
Person, including any Affiliate of the Company, except for:
(a) Temporary Cash Investments held by the Company or any Subsidiary;
(b) extensions of credit in the nature of accounts receivable or notes
receivable arising from the sale or lease of goods or services in the ordinary
course of business;
(c) extensions of credit, capital contributions and loan forgiveness by the
Company to any of its Wholly-Owned Subsidiaries (or, in the case of capital
contributions, to Persons such that after giving effect to such capital
contributions, such Persons are Wholly-Owned Subsidiaries) or by any of its
Wholly-Owned Subsidiaries to another of its Wholly-Owned Subsidiaries (or, in
the case of capital contributions, to Persons such that after giving effect to
such capital contributions, such Persons are Wholly-Owned Subsidiaries),
provided that the aggregate amount of such extensions of credit, capital
contributions and loans forgiven by the Company and Domestic Subsidiaries to
Foreign Subsidiaries shall not exceed $75,000,000 (or its equivalent in other
currencies);
(d) Investments incurred in order to consummate Permitted Acquisitions;
(e) Investments in Permitted Joint Ventures;
(f) Investments constituting Permitted Swap Obligations or payments or
advances under Swap Contracts relating to Permitted Swap Obligations;
(g) repurchases of capital stock of the Parent owned by employees or
directors of the Company or of any of its Subsidiaries at book or fair market
value;
(h) Capital Expenditures;
(i) Foreign Cash Investments held by any Foreign Subsidiary;
(j) securities of customers or suppliers acquired by the Company or any of
its Subsidiaries pursuant to the bankruptcy or reorganization of such customers
or suppliers;
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(k) loans to employees, officers or directors of the Company or of any of
its Subsidiaries for the purpose of purchasing capital stock of the Parent;
(l) deposits to secure the performance of leases or to obtain goods and
services;
(m) any Investments made as of the Original Closing Date and set forth on
Schedule 7.4; and
(n) in addition to the Investments permitted by clauses (a) through (m),
Investments not to exceed 10% of Net Worth (or its equivalent in other
currencies) in the aggregate at any time.
7.5 Limitation on Indebtedness. The Company shall not, and shall not suffer
or permit any Subsidiary to, create, incur, assume, suffer to exist, or
otherwise become or remain directly or indirectly liable with respect to, any
Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement;
(b) Indebtedness consisting of Contingent Obligations permitted pursuant to
Section 7.8;
(c) Indebtedness existing on the Original Closing Date and set forth in
Schedule 7.5(c);
(d) Indebtedness incurred in connection with leases permitted pursuant to
Section 7.10;
(e) Assumed Indebtedness incurred in Permitted Acquisitions;
(f) Permitted Additional Indebtedness;
(g) Indebtedness incurred by a Subsidiary as follows:
(i) the Existing IRBs;
(ii) Indebtedness of the Italian Borrower (including Alternate
Currency Loans) not to exceed in the aggregate $85,000,000 (or its
equivalent in other currencies); or
(iii) in addition to the Indebtedness permitted pursuant to clauses
(i) and (ii), Indebtedness incurred by all Subsidiaries together not to
exceed 10% of Net Worth (or its equivalent in other currencies) at any
time, provided that such Indebtedness, after giving effect to the creation,
assumption or incurrence of
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which, would not constitute a Default or Event of Default, and provided,
further, that the aggregate outstanding Indebtedness incurred by the
Domestic Subsidiaries together at any time shall not exceed 5% of Net Worth
at any time.
(h) notes, securities and instruments issued by the Company or one of its
Subsidiaries in connection with a Permitted Acquisition;
(i) Investments (to the extent that such Investments constitute
Indebtedness) permitted by Section 7.4(c); and
(j) Refinancing Indebtedness that refinances Indebtedness described in
clauses (c) through (i) above.
7.6 Transactions with Affiliates. The Company shall not, and shall not
suffer or permit any Subsidiary to, enter into any transaction with any
Affiliate of the Company, except upon fair and reasonable terms no less
favorable to the Company or such Subsidiary than would obtain in a comparable
arm's-length transaction with a Person not an Affiliate of the Company or such
Subsidiary; provided that (a) the Company may pay reasonable management and
consulting fees and out-of-pocket expenses relating thereto to Hidden Creek
Industries, and (b) the Company and its Subsidiaries may enter into transactions
relating to any Permitted Receivables Purchase Facility.
7.7 Use of Proceeds.
(a) The Company shall not, and shall not suffer or permit any Subsidiary
to, use any portion of the Loan proceeds or any Letter of Credit directly or
indirectly, (i) to purchase or carry Margin Stock, (ii) to repay or otherwise
refinance indebtedness of the Company or others incurred to purchase or carry
Margin Stock, (iii) to extend credit for the purpose of purchasing or carrying
any Margin Stock, (iv) to acquire any security in any transaction that is
subject to Section 13 or 14 of the Exchange Act or (v) to enter into or
consummate any Acquisition (other than Permitted Acquisitions).
(b) The Company shall not, directly or indirectly, use any portion of the
Loan proceeds or any Letter of Credit (i) knowingly to purchase Ineligible
Securities from the Lead Arranger and Book Manager during any period in which
the Lead Arranger and Book Manager makes a market in such Ineligible Securities,
(ii) knowingly to purchase during the underwriting or placement period
Ineligible Securities being underwritten or privately placed by the Lead
Arranger and Book Manager, or (iii) to make payments of principal or interest on
Ineligible Securities underwritten or privately placed by the Lead Arranger and
Book Manager and issued by or for the benefit of the Company or any Affiliate of
the Company. The Lead Arranger and Book Manager is a registered broker-dealer
and permitted to underwrite and deal in certain Ineligible Securities; and
"Ineligible Securities" means securities which may not be underwritten or dealt
in by
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member banks of the Federal Reserve System under Section 16 of the Banking
Act of 1933 (12 U.S.C. ss. 24, Seventh).
(c) The Company shall not use the proceeds of any Revolving Loan to make
any voluntary prepayment of any Term Loan.
7.8 Contingent Obligations. The Company shall not, and shall not suffer or
permit any Subsidiary to, create, incur, assume or suffer to exist any
Contingent Obligations except:
(a) endorsements for collection or deposit in the ordinary course of
business;
(b) Permitted Swap Obligations;
(c) Contingent Obligations of the Company and its Subsidiaries existing as
of the Original Closing Date and listed in Schedule 7.8;
(d) Letters of Credit;
(e) Contingent Obligations with respect to Surety Instruments (other than
Letters of Credit) incurred in the ordinary course of business and not exceeding
at any time $50,000,000 (or its equivalent in other currencies) in the aggregate
in respect of the Company and its Subsidiaries;
(f) ordinary course indemnity provisions in any agreement, undertaking,
contract, indenture, mortgage, deed of trust or other instrument, document or
agreement to which the Company or any of its Subsidiaries is a party;
(g) Guaranty Obligations (i) of the Company with respect to the obligations
of any of its Subsidiaries, (ii) of any of its Subsidiaries with respect to the
obligations of another of its Subsidiaries or (iii) of Domestic Subsidiaries or
Foreign Subsidiaries that are Material Subsidiaries but not Foreign 956
Subsidiaries with respect to the obligations of the Company; and
(h) Guaranty Obligations of (i) the Company, (ii) Domestic Subsidiaries or
(iii) foreign Subsidiaries that are Material Subsidiaries but not Foreign 956
Subsidiaries, in each case with respect to obligations of the Parent under any
Approved Parent Debt and, in the case of subordinated Approved Parent Debt,
where such Guaranty Obligations are similarly subordinated to the reasonable
satisfaction of the Agent, and only where such Person has executed and delivered
a Guaranty to the Agent.
7.9 Joint Ventures. The Company shall not, and shall not suffer or permit
any Subsidiary to, enter into any Joint Venture, other than Permitted Joint
Ventures in the ordinary course of business.
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7.10 Lease Obligations. The Company shall not, and shall not suffer or
permit any Subsidiary to, create or suffer to exist any obligations for the
payment of rent for any property under lease or agreement to lease, except for:
(a) leases of the Company and of Subsidiaries in existence on the
Original Closing Date and any renewal, extension or refinancing thereof;
(b) operating leases entered into by the Company or any Subsidiary after
the Closing Date in the ordinary course of business;
(c) leases entered into by the Company or any Subsidiary after the
Original Closing Date pursuant to sale-leaseback transactions otherwise
permitted under Section 7.2;
(d) capital leases other than those permitted under clauses (a) and
(c) of this Section 7.10, entered into by the Company or any Subsidiary after
the Original Closing Date in the ordinary course of business; and
(e) leases assumed by the Company or one of its Subsidiaries in
connection with a Permitted Acquisition.
7.11 Restricted Payments. The Company shall not, and shall not suffer or
permit any Subsidiary to, declare or make any dividend payment or other
distribution of assets, properties, cash, rights, obligations or securities on
account of any shares of any class of its capital stock, or purchase, redeem or
otherwise acquire or retire for value any Subordinated Indebtedness or any
shares of its capital stock or any warrants, rights or options to acquire such
shares, now or hereafter outstanding; except that (i) any Wholly-Owned
Subsidiary may declare and make dividend payments or other distributions to the
Company or to another Wholly-Owned Subsidiary; and (ii) the Company and any
Wholly-Owned Subsidiary may:
(a) declare and make dividend payments or other distributions payable
solely in its common stock;
(b) purchase, redeem or otherwise acquire shares of its common stock or
warrants or options to acquire any such shares with the proceeds received from
the substantially concurrent issue of new shares of its common stock;
(c) (i) purchase shares of the capital stock of the Parent, and (ii)
declare or pay cash dividends to the Parent in an aggregate amount equal to 50%
of net income of the Company and its Subsidiaries arising after December 31,
1996 and computed on a cumulative consolidated basis, provided that immediately
after giving effect to any such proposed action, no Default or Event of Default
would exist;
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(d) purchase, redeem or otherwise acquire or retire for value any
Subordinated Indebtedness, provided that immediately after giving effect to such
proposed action, no Default or Event of Default would exist;
(e) declare and pay dividends to the Parent to be used to pay taxes and
other expenses of the Parent, the Company and its Subsidiaries on a consolidated
basis; and
(f) may declare and pay Debt Service Dividends.
7.12 ERISA. The Company shall not, and shall not suffer or permit any of
its ERISA Affiliates to: (a) engage in a prohibited transaction or violation of
the fiduciary responsibility rules with respect to any Plan which has resulted
or could reasonably expected to result in liability of the Company in an
aggregate amount in excess 10% of Tangible Net Worth; or (b) engage in a
transaction that could be subject to section 4069 or 4212(c) of ERISA.
7.13 Change in Business. The Company shall not, and shall not suffer or
permit any Subsidiary to, engage in any material line of business substantially
different from those lines of business carried on by the Company and its
Subsidiaries on the date hereof and businesses related thereto.
7.14 Accounting Changes. The Company shall not, and shall not suffer or
permit any Subsidiary to, make any significant change in accounting treatment or
reporting practices, except as required by GAAP, or change the fiscal year of
the Company or of any Subsidiary.
7.15 Financial Condition. The Company shall not permit:
(a) the Interest Coverage Ratio on the last day of any fiscal quarter for
the Reference Period then ended to be less than the applicable ratio set forth
against the applicable period below:
Period
------
From To Minimum Ratio
---- -- -------------
Original Closing Date December 30, 1999 2.50 to 1.00
December 31, 1999 December 30, 2000 2.75 to 1.00
December 31, 2000 thereafter 3.00 to 1.00
(b) the Debt/Capital Ratio as of the last day of the Reference Period then ended
to be more than the applicable percentage set forth against the applicable
period below:
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Period
------
From To Minimum Amount
---- -- -------------
Original Closing Date December 30, 1998 65%
December 31, 1998 December 30, 1999 60%
December 31, 1999 December 30, 2000 55%
December 31, 2000 thereafter 50%
(c) the Leverage Ratio on the last day of any fiscal quarter for the
Reference Period then ended to be more than the applicable ratio set forth
against the applicable period below:
Period
------
From To Minimum Ratio
---- -- -------------
Original Closing Date December 30, 1999 4.50 to 1.00
December 31, 1999 December 30, 2000 4.25 to 1.00
December 31, 2000 thereafter 4.00 to 1.00
the Senior Leverage Ratio on the last day of any fiscal quarter for the
Reference Period then ended to be more than the applicable ratio set forth
against the applicable period below:
Period
------
From To Minimum Ratio
---- -- -------------
Original Closing Date December 30, 1999 3.50 to 1.00
December 31, 1999 December 30, 2000 3.25 to 1.00
December 31, 2000 thereafter 3.00 to 1.00
7.16 Limitations on Negative Pledges. From and after the Original Closing
Date, the Company will not, nor will it permit any of its Subsidiaries to, enter
into any agreement containing any provision that would be violated or breached
by any of the following: (i) a pledge of the outstanding stock of any of the
Domestic Subsidiaries to secure the Obligations, (ii) a guaranty by any of such
Domestic Subsidiaries of the Obligations, or (iii) the granting of a security
interest in or Lien on any of the real or personal property of the Company or
any of its Domestic Subsidiaries to secure the Obligations, except in any case
to the extent that any provision in Assumed Indebtedness incurred in Permitted
Acquisitions after the Original Closing Date prohibits or limits the ability of
(x) a Subsidiary so acquired make such a guaranty or to grant any such security
interest or mortgage, (y) of any stockholder of a Subsidiary so acquired to make
such a pledge of stock, or (z) a Subsidiary to grant any such security interest
or Lien with respect
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to assets so acquired; provided that such prohibitions or limitations were not
created or entered into in anticipation or contemplation of or in connection
with the acquisition of such Subsidiary.
ARTICLE VIII
EVENTS OF DEFAULT
8.1 Event of Default. Any of the following shall constitute an "Event of
Default":
(a) Non-Payment. The Company or any of its Subsidiaries fails to make, (i)
when and as required to be made herein, payments of any amount of principal of
any Loan, (ii) when and as required to be paid under any Specified Swap
Contract, any payment or transfer under such Specified Swap Contract, (iii) when
and as required to be made herein, reimbursements to any LC Issuer of amounts
drawn under any Letter of Credit, or (iv) within three days after the same
becomes due, payment of any interest, fee or any other amount payable hereunder
or under any other Credit Document (other than a Specified Swap Contract); or
(b) Representation or Warranty. Any representation or warranty by the
Company or any Subsidiary made or deemed made herein, in any other Credit
Document (other than a Specified Swap Contract), or which is contained in any
certificate, document or financial or other statement by the Company, any
Subsidiary, or any Responsible Officer, furnished at any time under this
Agreement, or in or under any other Credit Document (other than a Specified Swap
Contract), is incorrect in any material respect on or as of the date made or
deemed made; or
(c) Specific Defaults. The Company fails to perform or observe any term,
covenant or agreement contained in any of Section 6.1, 6.2, 6.3 or 6.9 or in
Article VII; or
(d) Other Defaults. The Company (or the Parent or any of its Subsidiaries
party thereto) fails to perform or observe any other term or covenant contained
in this Agreement or any other Credit Document (other than a Specified Swap
Contract), and such default shall continue unremedied for a period of 30 days
after the earlier of (i) the date upon which a Responsible Officer knew or
reasonably should have known of such failure or (ii) the date upon which written
notice thereof is given to the Company by the Agent or any Lender; or
(e) Cross-Default. (i) The Parent, the Company or any Subsidiary (A) fails
to make any payment in respect of any Indebtedness or Contingent Obligation
having an aggregate principal amount (including undrawn committed or available
amounts and including amounts owing to all creditors under any combined or
syndicated credit arrangement) of more than $10,000,000 (or its equivalent
in other currencies), when due
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(whether by scheduled maturity, required prepayment or offer to purchase,
acceleration, demand, or otherwise) and such failure continues after the
applicable grace or notice period, if any, specified in the relevant document on
the date of such failure; or (B) fails to perform or observe any other condition
or covenant, or any other event shall occur or condition exist, under any
agreement or instrument relating to any such Indebtedness or Contingent
Obligation, and such failure continues after the applicable grace or notice
period, if any, specified in the relevant document on the date of such failure
if the effect of such failure, event or condition is to cause, or to permit the
holder or holders of such Indebtedness or beneficiary or beneficiaries of such
Indebtedness (or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, such Indebtedness to be declared to be
due and payable prior to its stated maturity, or such Contingent Obligation to
become payable or cash collateral in respect thereof to be demanded or to
require the Company to prepay or offer to purchase such Indebtedness; or (ii)
there occurs any termination, liquidation, unwind or similar event or
circumstance under any Permitted Receivables Purchase Facility, which permits
any purchaser of receivables thereunder to cease purchasing such receivables or
to apply all collections on previously purchased receivables thereunder to the
repayment of such purchaser's interest in such previously purchased receivables
other than any such event or circumstance that arises solely as a result of a
down-grading of the credit rating of any bank or financial institution not
affiliated with the Company that provides liquidity, credit or other support in
connection with such facility.
(f) Insolvency; Voluntary Proceedings. The Parent or the Company or any
Material Subsidiary (i) ceases or fails to be solvent, or generally fails to
pay, or admits in writing its inability to pay, its debts as they become due,
subject to applicable grace periods, if any, whether at stated maturity or
otherwise; (ii) voluntarily ceases to conduct its business in the ordinary
course; (iii) commences any Insolvency Proceeding with respect to itself; or
(iv) takes any action to effectuate or authorize any of the foregoing; or
(g) Involuntary Proceedings. (i) Any involuntary Insolvency Proceeding is
commenced or filed against the Parent or the Company or any Material Subsidiary,
or any writ, judgment, warrant of attachment, execution or similar process, is
issued or levied against a substantial part of the Parent's, the Company's or
any Material Subsidiary's properties, and any such proceeding or petition shall
not be dismissed, or such writ, judgment, warrant of attachment, execution or
similar process shall not be released, vacated or fully bonded within sixty days
after commencement, filing or levy; (ii) the Parent or the Company or any
Material Subsidiary admits the material allegations of a petition against it in
any Insolvency Proceeding, or an order for relief (or similar order under
non-U.S. law) is ordered in any Insolvency Proceeding; or (iii) the Parent or
the Company or any Material Subsidiary acquiesces in the appointment of a
receiver, trustee, custodian, conservator, liquidator, mortgagee in possession
(or agent therefor), or other similar Person for itself or a substantial portion
of its property or business; or
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(h) ERISA. (i) An ERISA Event shall occur with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to result
in liability of the Company under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC in an aggregate amount in excess of 10% of
Tangible Net Worth; or (ii) the aggregate amount of Unfunded Pension Liability
among all Pension Plans at any time exceeds 10% of Tangible Net Worth; or (iii)
the Company or any ERISA Affiliate shall fail to pay when due, after the
expiration of any applicable grace period, any installment payment with respect
to its withdrawal liability under section 4201 of ERISA under a Multiemployer
Plan in an aggregate amount in excess of 10% of Tangible Net Worth; or
(i) Monetary Judgments. One or more non-interlocutory judgments,
non-interlocutory orders, decrees or arbitration awards is entered against the
Company or any Subsidiary involving in the aggregate a liability (to the extent
not covered by independent third-party insurance as to which the insurer does
not dispute coverage) as to any single or related series of transactions,
incidents or conditions, of $10,000,000 (or its equivalent in other currencies)
or more, and the same shall remain unvacated and unstayed pending appeal for a
period of ten days after the entry thereof; or
(j) Non-Monetary Judgments. Any non-monetary judgment, order or decree is
entered against the Company or any Subsidiary which does or would reasonably be
expected to have a Material Adverse Effect, and there shall be any period of
twenty consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect; or
(k) Change of Control. There occurs a Change of Control; or
(l) Guarantor or Pledgor Defaults. Any Guarantor or Pledgor fails in any
material respect to perform or observe any material term, covenant or agreement
in the Guaranty or any Pledge Agreement; or the Guaranty or any Pledge Agreement
is for any reason partially (including with respect to future advances) or
wholly revoked or invalidated, or otherwise ceases to be in full force and
effect, or any Guarantor or Pledgor or any other Person contests in any manner
the validity or enforceability thereof or denies that it has any further
liability or obligation thereunder; or any event described in Section 8.1(f) or
(g) occurs with respect to any Guarantor or Pledgor.
8.2 Remedies. If any Event of Default occurs, the Agent shall, at the
request of, or may, with the consent of, the Required Lenders or, in case of (c)
and (d) below, either the Required Term Lenders or the Required Lenders:
(a) declare the commitment of each Lending Party to make Loans to be
terminated, whereupon such commitments shall be terminated;
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(b) declare the commitment of each LC Issuer to Issue Letters of Credit to
be terminated;
(c) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Credit Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by each Credit Party; and
(d) exercise on behalf of itself and the Lending Parties all rights and
remedies available to it and the Lending Parties under the Credit Documents or
applicable law;
provided that upon the occurrence of any event specified in clause (f) or (g) of
Section 8.1 (in the case of subclause (i) of clause (g) upon the expiration of
the sixty-day period mentioned therein), the obligation of each Lending Party to
make Loans or Issue Letters of Credit shall automatically terminate and the
unpaid principal amount of all outstanding Loans and all interest and other
amounts as aforesaid shall automatically become due and payable without further
act of the Agent or any Lending Party.
8.3 Specified Swap Contract Remedies. Notwithstanding any other provision
of this Article VIII, each Swap Provider shall have the right, with prior notice
to the Agent, but without the approval or consent of the Agent or the other
Lenders, with respect to any Specified Swap Contract of such Swap Provider, (a)
to declare an event of default, termination event or other similar event
thereunder and to create an Early Termination Date (as specified in such
Specified Swap Contract), (b) to determine net termination amounts in accordance
with the terms of such Specified Swap Contracts and to set off amounts between
Specified Swap Contracts, and (c) to prosecute any legal action against the
Company or its Subsidiary to enforce net amounts owing to such Swap Provider.
8.4 Rights Not Exclusive. The rights provided for in this Agreement and the
other Credit Documents are cumulative and are not exclusive of any other rights,
powers, privileges or remedies provided by law or in equity, or under any other
instrument, document or agreement now existing or hereafter arising.
ARTICLE IX
THE AGENT
9.1 Appointment and Authorization; "Agent". Each Lending Party hereby
irrevocably (subject to Section 9.9) appoints, designates and authorizes the
Agent to take such action on its behalf under the provisions of this Agreement
and each other Credit Document and to exercise such powers and perform such
duties as are expressly delegated to it by the terms of this Agreement or any
other Credit Document, together
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with such powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary contained elsewhere in this Agreement or in any other
Credit Document, the Agent shall not have any duties or responsibilities, except
those expressly set forth herein, nor shall the Agent have or be deemed to have
any fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Credit Document or otherwise exist against the Agent.
Without limiting the generality of the foregoing sentence, the use of the term
"agent" in this Agreement with reference to the Agent is not intended to connote
any fiduciary or other implied (or express) obligations arising under agency
doctrine of any applicable law. Instead, such term is used merely as a matter of
market custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties.
9.2 Delegation of Duties. The Agent may execute any of its duties under
this Agreement or any other Credit Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects with
reasonable care.
9.3 Liability of Agent. None of the Agent-Related Persons shall (i) be
liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Credit Document or the transactions
contemplated hereby (except for its own bad faith, gross negligence or willful
misconduct), or (ii) be responsible in any manner to any Lending Party for any
recital, statement, representation or warranty made by the Company or any
Subsidiary or Affiliate of the Company, or any officer thereof, contained in
this Agreement or in any other Credit Document, or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Agent under or in connection with, this Agreement or any other Credit Document,
or the validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any other Credit Document, or for any failure of the Company
or any other party to any Credit Document to perform its obligations hereunder
or thereunder. No Agent-Related Person shall be under any obligation to any
Lending Party to ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this Agreement, except
delivery of the items required to be delivered to the Agent pursuant to Section
4.1, or any other Credit Document, or to inspect the properties, books or
records of the Company or any of the Company's Subsidiaries or Affiliates.
9.4 Reliance by Agent.
(a) The Agent shall be entitled to rely, and shall be fully protected in
relying, upon any writing, resolution, notice, consent, certificate, affidavit,
letter, telegram, facsimile, telex or telephone message, statement or other
document or conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons, and upon advice and
statements of legal counsel (including
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counsel to the Company), independent accountants and other experts selected by
the Agent. The Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Credit Document unless it shall first
receive such advice or concurrence of the Required Lenders and the Required Term
Lenders (or to the extent required by this Agreement, all of the Lenders) as it
deems appropriate and, if it so requests, it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action. The
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement or any other Credit Document in accordance with a
request or consent of the Required Lenders and/or the Required Term Lenders, as
the case may be (or to the extent required by this Agreement, all of the
Lenders) and such request and any action taken or failure to act pursuant
thereto shall be binding upon all of the Lenders.
(b) For purposes of determining compliance with the conditions specified in
Section 4.1, each Lender that has executed this Agreement shall be deemed to
have consented to, approved or accepted or to be satisfied with, each document
or other matter either sent by the Agent to such Lender for consent, approval,
acceptance or satisfaction, or required thereunder to be consented to or
approved by or acceptable or satisfactory to the Lender.
9.5 Notice of Default. The Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default, except with respect
to defaults in the payment of principal, interest and fees required to be paid
to the Agent for the account of the Lending Parties, unless the Agent shall have
received written notice from a Lending Party or the Company referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a "notice of default." The Agent will notify the Lending Parties of
its receipt of any such notice. The Agent shall take such action with respect to
such Default or Event of Default as may be requested by the Required Lenders or
the Required Term Lenders in accordance with Article VIII; provided that unless
and until the Agent has received any such request, the Agent may (but shall not
be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable or in the
best interest of the Lending Parties.
9.6 Credit Decision. Each Lending Party acknowledges that none of the
Agent-Related Persons has made any representation or warranty to it, and that no
act by the Agent hereinafter taken, including any review of the affairs of the
Company and its Subsidiaries, shall be deemed to constitute any representation
or warranty by any Agent-Related Person to any Lending Party. Each Lending Party
represents to the Agent that it has, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Company and its Subsidiaries, and all applicable
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bank regulatory laws relating to the transactions contemplated hereby, and made
its own decision to enter into this Agreement and to extend credit to the
Company and its Subsidiaries hereunder. Each Lending Party also represents that
it will, independently and without reliance upon any Agent-Related Person and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Credit Documents,
and to make such investigations as it deems necessary to inform itself as to the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Company. Except for notices, reports and other documents
expressly herein required to be furnished to the Lending Parties by the Agent,
the Agent shall not have any duty or responsibility to provide any Lending Party
with any credit or other information concerning the business, prospects,
operations, property, financial and other condition or creditworthiness of the
Company which may come into the possession of any of the Agent-Related Persons.
9.7 Indemnification of Agent. Whether or not the transactions contemplated
hereby are consummated, the Lenders shall indemnify upon demand the
Agent-Related Persons (to the extent not reimbursed by or on behalf of the
Company and without limiting the obligation of the Company to do so), according
to their respective ratable share, from and against any and all Indemnified
Liabilities; provided that no Lender shall be liable for the payment to the
Agent-Related Persons of any portion of such Indemnified Liabilities to the
extent resulting from such Persons' bad faith, gross negligence or willful
misconduct. Without limitation of the foregoing, each Lender shall reimburse the
Agent upon demand for its ratable share of any costs or out-of-pocket expenses
(including Attorney Costs) incurred by the Agent in connection with the
preparation, execution, delivery, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement, any other
Credit Document, or any document contemplated by or referred to herein, to the
extent that the Agent is not reimbursed for such expenses by or on behalf of the
Company. The undertaking in this Section shall survive the payment of all
Obligations hereunder and the resignation or replacement of the Agent.
9.8 Agent in Individual Capacity. BofA and its Affiliates may make loans
to, issue letters of credit for the account of, accept deposits from, acquire
equity interests in and generally engage in any kind of banking, trust,
financial advisory, underwriting or other business with the Company and its
Subsidiaries and Affiliates as though BofA were not the Agent hereunder and
without notice to or consent of the Lending Parties. The Lending Parties
acknowledge that, pursuant to such activities, BofA or its Affiliates may
receive information regarding the Company or its Affiliates (including
information that may be subject to confidentiality obligations in favor of the
Company or such Subsidiary) and acknowledge that the Agent shall be under no
obligation to provide such information to them. With respect to its Loans, BofA
shall have the same rights and powers under
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this Agreement as any other Lender and may exercise the same as though it were
not the Agent, and the terms "Lender" and "Lenders" include BofA in its
individual capacity.
9.9 Successor Agent. The Agent may resign as Agent upon thirty days'
notice to the Lending Parties. If the Agent resigns under this Agreement, the
Required Lenders and the Required Term Lenders shall appoint from among the
Lenders a successor agent for the Lenders which successor agent shall be
reasonably acceptable to the Company. If no successor agent is appointed prior
to the effective date of the resignation of the Agent, the Agent may appoint,
after consulting with the Lenders and the Company, a successor agent from among
the Lenders. Upon the acceptance of its appointment as successor agent
hereunder, such successor agent shall succeed to all the rights, powers and
duties of the retiring Agent and the term "Agent" shall mean such successor
agent and the retiring Agent's appointment, powers and duties as Agent shall be
terminated. After any retiring Agent's resignation hereunder as Agent, the
provisions of this Article IX and Sections 10.4 and 10.5 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was Agent
under this Agreement. If no successor agent has accepted appointment as Agent by
the date which is 30 days following a retiring Agent's notice of resignation,
the retiring Agent's resignation shall nevertheless thereupon become effective
and the Lenders shall perform all of the duties of the Agent hereunder until
such time, if any, as the Required Lenders and the Required Term Lenders appoint
a successor agent as provided for above.
9.10 Withholding Tax. If any Lender is a "foreign corporation, partnership
or trust" within the meaning of the Code and such Lender claims exemption from,
or a reduction of, U.S. withholding tax under sections 1441 or 1442 of the Code,
such Lender agrees with and in favor of the Agent, to deliver to the Agent:
(i) if such Lender claims an exemption from, or a reduction of,
withholding tax under a United States tax treaty, two properly completed and
executed copies of IRS Form 1001 before the payment of any interest in the first
calendar year and before the payment of any interest in each third succeeding
calendar year during which interest may be paid under this Agreement;
(ii) if such Lender claims that interest paid under this Agreement is
exempt from United States withholding tax because it is effectively connected
with a United States trade or business of such Lender two properly completed and
executed copies of IRS Form 4224 (or any successor form), before the payment of
any interest is due in the first taxable year of such Lender and in each
succeeding taxable year of such Lender during which interest may be paid under
this Agreement; and
(iii) such other form or forms as may be required under the Code or other
laws of the United States as a condition to exemption from, or reduction of,
United States withholding tax.
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Such Lender agrees to promptly notify the Agent of any change in
circumstances which would modify or render invalid any claimed exemption or
reduction.
(b) If any Lender claims exemption from, or reduction of, withholding tax
under a United States tax treaty by providing IRS Form 1001 (or any successor
form) and such Lender sells, assigns, grants a participation in, or otherwise
transfers all or part of the Obligations of the Company to such Lender, such
Lender agrees to notify the Agent of the percentage amount in which it is no
longer the beneficial owner of Obligations of the Company to such Lender. To the
extent of such percentage amount, the Agent will treat such Lender's IRS Form
1001 (or any successor form) as no longer valid.
(c) If any Lender claiming exemption from United States withholding tax
by filing IRS Form 4224 (or any successor form) with the Agent sells,
assigns, grants a participation in, or otherwise transfers all or part of the
Obligations of the Company to such Lender, such Lender agrees to undertake sole
responsibility for complying with the withholding tax requirements imposed by
sections 1441 and 1442 of the Code.
(d) If any Lender is entitled to a reduction in the applicable
withholding tax, the Agent may withhold from any interest payment to such Lender
an amount equivalent to the applicable withholding tax after taking into account
such reduction. However, if the forms or other documentation required by Section
9.10(a) are not delivered to the Agent, then the Agent may withhold from any
interest payment to such Lender not providing such forms or other documentation
an amount equivalent to the applicable withholding tax imposed by sections 1441
and 1442 of the Code, without reduction.
(e) If the IRS or any other Governmental Authority of the United States
or other jurisdiction asserts a claim that the Agent did not properly withhold
tax from amounts paid to or for the account of any Lender (because the
appropriate form was not delivered or was not properly executed, or because such
Lender failed to notify the Agent of a change in circumstances which rendered
the exemption from, or reduction of, withholding tax ineffective, or for any
other reason) such Lender shall indemnify the Agent fully for all amounts paid,
directly or indirectly, by the Agent as tax or otherwise, including penalties
and interest, and including any taxes imposed by any jurisdiction on the amounts
payable to the Agent under this Section, together with all costs and expenses
(including Attorney Costs). The obligation of the Lenders under this subsection
shall survive the payment of all Obligations and the resignation or replacement
of the Agent.
9.11 Co-Agents. None of the Lenders identified in the preamble or signature
pages of this Agreement as a "co-agent" shall have any right, power, obligation,
liability, responsibility or duty under this Agreement other than those
applicable to all Lenders as such. Without limiting the foregoing, none of the
Lenders so identified as a "co-agent" shall have or be deemed to have any
fiduciary relationship with any Lending Party. Each Lending Party acknowledges
that it has not relied, and will not rely, on any of the
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Lenders so identified in deciding to enter into this Agreement or in taking or
not taking action hereunder.
ARTICLE X
MISCELLANEOUS
10.1 Amendments and Waivers. No amendment or waiver of any provision of
this Agreement or any other Credit Document, and no consent with respect to any
departure by the Company or any applicable Subsidiary therefrom, shall be
effective unless the same shall be in writing and signed by the Required Lenders
(or by the Agent at the written request of the Required Lenders) and the Company
and acknowledged by the Agent, and then any such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided that no such waiver, amendment, or consent shall, unless in
writing and signed by all the Lenders and the Company and acknowledged by the
Agent, do any of the following:
(a) increase or extend any Revolving Commitment of any Lender (or
reinstate any such Revolving Commitment terminated pursuant to Section 8.2);
(b) postpone or delay any date for, or change the amount of, any
scheduled mandatory reduction in the Total Commitment Amount;
(c) postpone or delay any date fixed by this Agreement or any other
Credit Document for any mandatory payment of principal or any payment of
interest, fees or other amounts due to the Lending Parties (or any of them)
hereunder or under any other Credit Document;
(d) reduce the principal of, or the rate of interest specified herein on
any Credit Extension, or (subject to clause (ii) below) any fees or other
amounts payable hereunder or under any other Credit Document;
(e) change the percentage of the Revolving Commitments or of the
aggregate unpaid principal amount of the Loans which is required for the Lenders
or any of them to take any action hereunder; or
(f) amend this Section 10.1, or Section 2.14, or any provision herein
providing for consent or other action by all Lenders; or
(g) discharge any Guarantor or release any Pledgor, except as provided in
any Credit Document;
and provided, further, that (i) no amendment, waiver or consent shall,
unless in writing and signed by the Agent in addition to the Required Lenders or
all the Lenders, as
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the case may be, affect the rights or duties of the Agent under this Agreement
or any other Credit Document, (ii) the Fee Letter and documents evidencing
Specified Swap Contracts may be amended, or rights or privileges thereunder
waived, in a writing executed by the parties thereto, and (iii) no amendment,
waiver or consent shall affect the rights and obligations of any Alternate
Currency Lender or Alternate Currency LC Issuer, as the case may be, under
Section 2.17 or any applicable Alternate Currency Annex, unless in writing and
signed by such Alternate Currency Lender or Alternate Currency LC Issuer.
10.2 Notices.
(a) All notices, requests, consents, approvals, waivers and other
communications shall be in writing (including, unless the context expressly
otherwise provides, by facsimile transmission, provided that any matter
transmitted by the Company by facsimile (i) shall be immediately confirmed by a
telephone call to the recipient at the number specified on Schedule 10.2, and
(ii) shall be followed promptly by delivery of a hard copy original thereof) and
mailed, faxed or delivered, to the address or facsimile number specified for
notices on Schedule 10.2; or, as directed to the Company or the Agent, to such
other address as shall be designated by such party in a written notice to the
other parties, and as directed to any other party, at such other address as
shall be designated by such party in a written notice to the Company and the
Agent.
(b) All such notices, requests and communications shall, when transmitted
by overnight delivery, or faxed, be effective when delivered for overnight
(next-day) delivery, or transmitted in legible form by facsimile machine,
respectively, or if mailed, upon the third Business Day after the date deposited
into the U.S. mail, or if delivered, upon delivery; except that notices pursuant
to Article II or IX to the Agent shall not be effective until actually received
by the Agent.
(c) Any agreement of the Agent and the Lending Parties herein to receive
certain notices by telephone or facsimile is solely for the convenience and at
the request of the Company. The Agent and the Lending Parties shall be entitled
to rely on the authority of any Person purporting to be a Person authorized by
the Company to give such notice and the Agent and the Lending Parties shall not
have any liability to the Company or other Person on account of any action taken
or not taken by the Agent or the Lending Parties in reliance upon such
telephonic or facsimile notice. The obligation of the Company to repay the Loans
shall not be affected in any way or to any extent by any failure by the Agent
and the Lending Parties to receive written confirmation of any telephonic or
facsimile notice or the receipt by the Agent and the Lending Parties of a
confirmation which is at variance with the terms understood by the Agent and the
Lending Parties to be contained in the telephonic or facsimile notice.
10.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay in
exercising, on the part of the Agent or any Lending Party, any right, remedy,
power or
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privilege hereunder, shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege.
10.4 Costs and Expenses. The Company shall:
(a) whether or not the transactions contemplated hereby are consummated,
pay or reimburse BofA (including in its capacity as Agent), each Alternate
Currency Lender (in its capacity as such) and each Alternate Currency LC Issuer
(in its capacity as such) within ten Business Days after demand (subject to
Section 4.1(f)) for all reasonable costs and expenses incurred by BofA
(including in its capacity as Agent), each such Alternate Currency Lender (in
its capacity as such) and each such Alternate Currency LC Issuer (in its
capacity as such) in connection with the development, preparation, delivery,
administration and execution of, and any amendment, supplement, waiver or
modification to (in each case, whether or not consummated), this Agreement, any
other Credit Document and any other documents prepared in connection herewith or
therewith, and the consummation of the transactions contemplated hereby and
thereby, including reasonable Attorney Costs incurred by BofA (including in its
capacity as Agent), each such Alternate Currency Lender (in its capacity as
such), and each such Alternate Currency LC Issuer (in its capacity as such) with
respect thereto; and
(b) pay or reimburse the Agent, the Lead Arranger and Book Manager and
each Lending Party within ten Business Days after demand (subject to Section
4.1(f)) for all reasonable costs and expenses (including reasonable Attorney
Costs) incurred by them in connection with the enforcement, attempted
enforcement, or preservation of any rights or remedies under this Agreement or
any other Credit Document during the existence of an Event of Default or after
acceleration of the Loans (including in connection with any "workout" or
restructuring regarding the Loans, and including in any Insolvency Proceeding or
appellate proceeding); and
(c) pay or reimburse BofA (including in its capacity as Agent) within ten
Business Days after demand (subject to Section 4.1(f)) for all appraisal
(including the allocated cost of internal appraisal services), audit,
environmental inspection and review (including the allocated cost of such
internal services), search and filing costs, fees and expenses, incurred or
sustained by BofA (including in its capacity as Agent) in connection with the
matters referred to under Sections 10.4(a) and (b).
10.5 Indemnification.
(a) General. Whether or not the transactions contemplated hereby are
consummated, the Company shall indemnify, defend and hold harmless the
Agent-Related Persons, each LC Issuer (including each Alternate Currency LC
Issuer), each Swap Provider, each Lender, the Swingline Lender and each
Alternate Currency Lender and each of its respective officers, directors,
employees, counsel, agents and
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attorneys-in-fact (each, an "Indemnified Person") from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, charges, expenses and disbursements (including reasonable Attorney Costs)
of any kind or nature whatsoever which may at any time (including at any time
following repayment of the Loans and termination of all Specified Swap Contracts
and the termination, resignation or replacement of the Agent or replacement of
any Lending Party) be imposed on, incurred by or asserted against any such
Person in any way relating to or arising out of this Agreement or any document
contemplated by or referred to herein, or the transactions contemplated hereby,
or any action taken or omitted by any such Person under or in connection with
any of the foregoing, including with respect to any investigation, litigation or
proceeding (including any Insolvency Proceeding or appellate proceeding) related
to or arising out of this Agreement or the Specified Swap Contracts or the
Credit Extensions or the use of the proceeds thereof, whether or not any
Indemnified Person is a party thereto (all the foregoing, collectively, the
"Indemnified Liabilities"); provided that the Company shall have no obligation
hereunder to any Indemnified Person with respect to Indemnified Liabilities to
the extent resulting from the bad faith, gross negligence or willful misconduct
of such Indemnified Person. The agreements in this Section 10.5(a) shall survive
payment of all other Obligations.
(b) Environmental.
(i) The Company shall indemnify, defend and hold harmless each
Indemnified Person from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, charges, expenses
or disbursements (including reasonable Attorney Costs and the reasonable
allocated cost of internal environmental audit or review services), which may be
incurred by or asserted against such Indemnified Person in connection with or
arising out of any pending or threatened investigation, litigation or
proceeding, or any action taken by any Person, with respect to any Environmental
Claim arising out of or related to any property subject to a mortgage in favor
of the Agent or any Lending Party (all of the foregoing, collectively, the
"Indemnified Environmental Liabilities"); provided that the Company shall have
no obligation hereunder to any Indemnified Person with respect to Indemnified
Environmental Liabilities to the extent resulting from the gross negligence, bad
faith or willful misconduct of such Indemnified Person. No action taken by legal
counsel chosen by the Agent or any Lending Party in defending against any such
investigation, litigation or proceeding or requested remedial, removal or
response action shall vitiate or any way impair the Company's obligation and
duty hereunder to indemnify and hold harmless the Agent and each Lending Party.
(ii) In no event shall any site visit, observation, or testing by the
Agent or any Lending Party (or any contractee of the Agent or any Lending Party)
be deemed a representation or warranty that Hazardous Materials are or are not
present in, on, or under, the site, or that there has been or shall be
compliance with any Environmental Law. Unless the Agent or any Lending Party
agrees otherwise, neither the Company nor
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any other Person is entitled to rely on any site visit, observation, or testing
by the Agent or any Lending Party. Upon reasonable written request by the
Company, the Agent or any Lending Party shall disclose to the Company any report
or findings made as a result of, or in connection with, any site visit,
observation, or testing by the Agent or such Lending Party.
(c) Survival; Defense. The obligations in this Section shall survive
payment of all other Obligations. At the election of any Indemnified Person, the
Company shall defend such Indemnified Person using legal counsel satisfactory to
such Indemnified Person in such Person's sole discretion, at the sole cost and
expense of the Company. All amounts owing under this Section shall be paid
within thirty days after demand.
10.6 Marshalling; Payments Set Aside. Neither the Agent nor the Lending
Parties shall be under any obligation to marshall any assets in favor of the
Company or any other Person or against or in payment of any or all of the
Obligations. To the extent that any Credit Party makes a payment to the Agent or
the Lending Parties, or the Agent or the Lending Parties exercise their right of
set-off, and such payment or the proceeds of such set-off or any part thereof
are subsequently invalidated, declared to be fraudulent or preferential, set
aside or required (including pursuant to any settlement entered into by the
Agent or such Lending Party in its discretion) to be repaid to a trustee,
receiver or any other party, in connection with any Insolvency Proceeding or
otherwise, then (a) to the extent of such recovery the obligation or part
thereof originally intended to be satisfied shall be revived and continued in
full force and effect as if such payment had not been made or such set-off had
not occurred, and (b) each Lending Party severally agrees to pay to the Agent
upon demand its pro rata share of any amount so recovered from or repaid by the
Agent to the extent previously received by such Lending Party from the Agent.
10.7 Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that neither the Company nor the Foreign
Subsidiary Borrower may assign or transfer any of its rights or obligations
under this Agreement without the prior written consent of the Agent and each
Lender, provided that each Term A Dollar Lender hereby agrees that the Term A
Dollar Loans may be assigned to an Approved Foreign Subsidiary Borrower on the
terms and conditions set forth in Sections 2.1(b)(ii) and 4.2; provided further
that the Italian Borrower may not assign the Italian Euro Term Loan without the
prior written consent of the Agent and the Italian Term Lender.
10.8 Assignments, Participations, etc.
(a) Any Lender may, with the written consent of the Company at all times
other than during the existence of an Event of Default, the Agent and, in the
case of the Revolving Loans, each Alternate Currency Lender and each Alternate
Currency LC Issuer, which consents of the Company, each Alternate Currency
Lender, each Alternate Currency LC Issuer and the Agent shall not be
unreasonably withheld, at any time assign and delegate to one or more Eligible
Assignees (provided that no written consent of the Company or the Agent or each
Alternate Currency Lender or each Alternate Currency LC Issuer) shall be
required in connection with any assignment
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and delegation by a Lender to an Eligible Assignee that is an Affiliate of such
Lender or to an existing Lender) (each an "Assignee") all, or any part of, of
the Assignable Credit Exposure of such Lender hereunder, in a minimum principal
or face amount of $5,000,000 or, if less, the entire principal amount held by
such Lender (provided that the foregoing limitation with respect to minimum
principal or face amount of an assignment and delegation shall not apply to
assignments to an existing Lender); provided that (i) a Lender's Term A Dollar
Loans and Term A Euro Loans shall be assigned on a pro rata basis, (ii) the
Company and the Agent may continue to deal solely and directly with such Lender
in connection with the interest so assigned to an Assignee until (A) written
notice of such assignment, together with payment instructions, addresses and
related information with respect to the Assignee, shall have been given to the
Company, the Agent and, in the case of the Revolving Loans, each Alternate
Currency Lender and each Alternate Currency LC Issuer by such Lender and the
Assignee; (B) such Lender and its Assignee shall have delivered to the Company,
the Agent and, in the case of the Revolving Loans, each Alternate Currency
Lender and each Alternate Currency LC Issuer an Assignment and Acceptance in the
form of Exhibit E ("Assignment and Acceptance") together with any Note or Notes
subject to such assignment and (C) the Assignee has paid to the Agent a
processing fee in the amount of $3,500; (iii) if the assignor Lender or any of
its Affiliates is a Swap Provider with respect to any Specified Swap Contract,
such Lender shall not assign all of its Assignable Credit Exposure to an
Assignee unless such Assignee, or an Affiliate of such Assignee, shall also
assume all obligations of such assignor Lender or Affiliate with respect to such
Specified Swap Contracts, with the consent of the Company; and (iv) if because
of circumstances in effect on the effective date of any assignment, the Company
would, under Section 3.1, be obligated to make any payment to or for the account
of the applicable Assignee, the Company shall only be obligated to make such
payment to the extent that it would then have been obligated to make such
payment to the assignor Lender.
(b) From and after the date that the Agent notifies the assignor Lender
that it has received (and, if required, provided its consent with respect to) an
executed Assignment and Acceptance and payment of the above-referenced
processing fee, (i) the Assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment and Acceptance, shall have the rights and obligations of a
Lender under the Credit Documents, and (ii) the assignor Lender shall, to the
extent that rights and obligations hereunder and under the other Credit
Documents have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Documents.
(c) Immediately upon each Assignee's making its processing fee payment
under the Assignment and Acceptance, this Agreement shall be deemed to be
amended
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to the extent, but only to the extent, necessary to reflect the addition
of the Assignee and, if applicable, the resulting adjustment of the Revolving
Commitments arising therefrom. Any Revolving Commitment allocated to an Assignee
shall reduce such Revolving Commitment of the assigning Lender pro tanto.
(d) Any Lender may at any time sell to one or more commercial banks or
other Persons not Affiliates of the Company (a "Participant") participating
interests in any Loans, the Revolving Commitment of that Lender and the other
interests of that Lender (the "Originating Lender") hereunder and under the
other Credit Documents; provided that (i) the Originating Lender's obligations
under this Agreement shall remain unchanged, (ii) the Originating Lender shall
remain solely responsible for the performance of such obligations, (iii) the
Company and the Agent shall continue to deal solely and directly with the
Originating Lender in connection with the Originating Lender's rights and
obligations under this Agreement and the other Credit Documents, and (iv) no
Lender shall transfer or grant any participating interest under which the
Participant has rights to approve any amendment to, or any consent or waiver
with respect to, this Agreement or any other Credit Document, except to the
extent such amendment, consent or waiver would require unanimous consent of the
Lenders as described in the first proviso to Section 10.1. In the case of any
such participation, (i) the Participant shall be entitled to the benefit of
Sections 3.1, 3.3 and 10.5 as though it were also a Lender hereunder, provided
that if because of circumstances in effect on the effective date of any sale of
a participating interest, the Company would, under Section 3.1, be obligated to
make any payment to or for the account of the applicable Originating Lender, the
Company shall only be obligated to make such payment to the extent that it would
then have been obligated to make such payment to such Originating Lender if it
had not sold such participating interest, and (ii) the Participant shall not
have any rights under this Agreement, or any of the other Credit Documents, and
all amounts payable by the Company hereunder shall be determined as if such
Lender had not sold such participation; except that, if amounts outstanding
under this Agreement are due and unpaid, or shall have been declared or shall
have become due and payable upon the occurrence of an Event of Default, each
Participant shall be deemed to have the right of set-off in respect of its
participating interest in amounts owing under this Agreement to the same extent
as if the amount of its participating interest were owing directly to it as a
Lender under this Agreement.
(e) Notwithstanding any other provision in this Agreement, any Lender may
at any time create a security interest in, or pledge, all or any portion of its
rights under and interest in this Agreement in favor of any Federal Reserve Bank
in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR
ss.203.14, and such Federal Reserve Bank may enforce such pledge or security
interest in any manner permitted under applicable law.
10.9 Confidentiality. Each Lending Party agrees to take and to cause its
Affiliates to take normal and reasonable precautions and exercise due care to
maintain
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the confidentiality of all information identified as "confidential" or
"secret" by the Company and provided to it by the Parent, the Company or any
Subsidiary, or by the Agent on the Parent's, the Company's or such Subsidiary's
behalf, under this Agreement or any other Credit Document, and neither it nor
any of its Affiliates shall use any such information other than in connection
with or in enforcement of this Agreement and the other Credit Documents or in
connection with other business now or hereafter existing or contemplated with
the Parent, the Company or any Subsidiary; except to the extent such information
(i) was or becomes generally available to the public other than as a result of
disclosure by such Lending Party, or (ii) was or becomes available on a
non-confidential basis from a source other than the Parent, the Company or any
Subsidiary, provided that such source is not bound by a confidentiality
agreement with the Parent, the Company or any Subsidiary known to such Lending
Party; provided that any Lending Party may disclose such information (A) at the
request or pursuant to any requirement of any Governmental Authority to which
such Lending Party is subject or in connection with an examination of such
Lending Party by any such authority; (B) pursuant to subpoena or other court or
other legal process; (C) when required to do so in accordance with the
provisions of any applicable Requirement of Law; (D) to the extent reasonably
required in connection with any litigation or proceeding to which the Agent, any
Lending Party or their respective Affiliates may be party; (E) to the extent
reasonably required in connection with the exercise of any remedy hereunder or
under any other Credit Document; (F) to such Lending Party 's independent
auditors and other professional advisors; (G) to any Participant or Assignee,
actual or potential, provided that such Person agrees in writing to keep such
information confidential to the same extent required of the Lending Party
hereunder; (H) as to any Lending Party or its Affiliate, as expressly permitted
under the terms of any other document or agreement regarding confidentiality to
which the Parent, the Company or any Subsidiary is party or is deemed party with
such Lending Party or such Affiliate; and (I) to its Affiliates.
10.10 Set-off. In addition to any rights and remedies of the Lending
Parties provided by law, if an Event of Default exists or the Loans have been
accelerated, each Lending Party is authorized at any time and from time to time,
without prior notice to any Credit Party, any such notice being waived by each
Credit Party 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 by, and other indebtedness at any time owing by, such Lending
Party to or for the credit or the account of such Credit Party against any and
all Obligations owing to such Lending Party, now or hereafter existing,
irrespective of whether or not the Agent or such Lending Party shall have made
demand under this Agreement or any Credit Document and although such Obligations
may be contingent or unmatured. Each Lending Party agrees promptly to notify the
Company and the Agent after any such set-off and application made by such
Lending Party; provided that the failure to give such notice shall not affect
the validity of such set-off and application.
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10.11 Automatic Debits of Fees. With respect to any commitment fee,
arrangement fee, or other fee, or any other cost or expense (including Attorney
Costs) due and payable to the Agent (in its capacity as such), BofA or the Lead
Arranger and Book Manager under the Credit Documents, the Company hereby
irrevocably authorizes BofA, upon prior notice to the Company, to debit any
deposit account of the Company with BofA in an amount such that the aggregate
amount debited from all such deposit accounts does not exceed such fee or other
cost or expense. If there are insufficient funds in such deposit accounts to
cover the amount of the fee or other cost or expense then due, such debits will
be reversed (in whole or in part, in BofA's sole discretion) and such amount not
debited shall be deemed to be unpaid. No such debit under this Section 10.11
shall be deemed a set-off.
10.12 Notification of Addresses, Lending Offices, etc. Each Lending Party
shall notify the Agent in writing of any changes in the address to which notices
to such Lending Party should be directed, of addresses of any Lending Office, of
payment instructions in respect of all payments to be made to it hereunder and
of such other administrative information as the Agent shall reasonably request.
10.13 Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which, when so executed, shall be deemed an
original, and all of said counterparts taken together shall be deemed to
constitute but one and the same instrument.
10.14 Severability. The illegality or unenforceability of any provision of
this Agreement or any instrument or agreement required hereunder shall not in
any way affect or impair the legality or enforceability of the remaining
provisions of this Agreement or any instrument or agreement required hereunder.
10.15 No Third Parties Benefited. This Agreement is made and entered into
for the sole protection and legal benefit of the Credit Parties, the Lending
Parties, the Agent and the Agent-Related Persons, and their permitted successors
and assigns, and no other Person (other than an Indemnified Person under Section
10.5) shall be a direct or indirect legal beneficiary of, or have any direct or
indirect cause of action or claim in connection with, this Agreement or any of
the other Credit Documents.
10.16 Governing Law and Jurisdiction. THIS AGREEMENT AND THE NOTES SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK;
PROVIDED THAT THE AGENT AND THE LENDING PARTIES SHALL RETAIN ALL RIGHTS ARISING
UNDER FEDERAL LAW.
(a) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER CREDIT DOCUMENT MAY BE BROUGHT IN
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THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF
THE CREDIT PARTIES, THE AGENT AND THE LENDING PARTIES CONSENTS, FOR ITSELF AND
IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS.
EACH OF THE CREDIT PARTIES, THE AGENT AND THE LENDING PARTIES IRREVOCABLY WAIVES
ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS
AGREEMENT OR ANY DOCUMENT RELATED HERETO. THE CREDIT PARTIES, THE AGENT AND THE
LENDING PARTIES EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER
PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY NEW YORK LAW.
(b) Nothing contained in this Section 10.16 shall override any contrary
provision contained in any Specified Swap Contract.
10.17 Waiver of Jury Trial. THE CREDIT PARTIES, THE LENDING PARTIES AND THE
AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE
OTHER CREDIT DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN
ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE
PARTIES AGAINST ANY OTHER PARTY OR ANY AGENT-RELATED PERSON, PARTICIPANT OR
ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE.
THE CREDIT PARTIES, THE LENDING PARTIES AND THE AGENT EACH AGREE THAT ANY SUCH
CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT
LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO
A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION,
COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE
THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER CREDIT DOCUMENTS
OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND THE
OTHER CREDIT DOCUMENTS.
10.18 Entire Agreement. This Agreement, together with the other Credit
Documents, embodies the entire agreement and understanding among the Credit
Parties, the Lending Parties and the Agent, and supersedes all prior or
contemporaneous
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agreements and understandings of such Persons, verbal or written, relating to
the subject matter hereof and thereof.
10.19 Judgment Currency. The Company, the Agent and each Lending Party
hereby agree that if, in the event that a judgment is given in relation to any
sum due to the Agent or any Lending Party hereunder, such judgment is given in a
currency (the "Judgment Currency") other than that in which such sum was
originally denominated (the "Original Currency"), the Company agrees to
indemnify the Agent or such Lending Party, as the case may be, to the extent
that the amount of the Original Currency which could have been purchased by the
Agent in accordance with normal banking procedures on the Business Day following
receipt of such sum is less than the sum which could have been so purchased by
the Agent had such purchase been made on the day on which such judgment was
given or, if such day is not a Business Day, on the Business Day immediately
preceding the giving of such judgment, and if the amount so purchased exceeds
the amount which could have been so purchased had such purchase been made on the
day on which such judgment was given or, if such day is not a Business Day, on
the Business Day immediately preceding such judgment, the Agent or the
applicable Lending Party agrees to remit such excess to the Company. The
agreements in this Section shall survive payment of all other Obligations.
10.20 Class Voting for Certain Amendments.
In addition to the requirements of Section 10.1, (a) no amendment
or waiver of any provision of this Agreement or any other Credit Document, and
no consent with respect to any departure by the Company or any applicable
Subsidiary therefrom, shall be effective unless the same shall be in writing and
signed by the Required Term Lenders (or by the Agent at the written request of
the Required Term Lenders) and the Company and acknowledged by the Agent, and
then any such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given, (b) no amendment, waiver or
consent with respect to the provisions of the definitions Scheduled Italian Euro
Term Repayments shall be effective without the written consent of the Italian
Euro Term Lender, and (c) no amendment, waiver or consent with respect to the
provisions of the definition of Required Term Lenders which purports to change
the aggregate unpaid principal amount of the Term Loans which is required for
the Lenders or any of them to take any action hereunder shall be effective
without the written consent of the Required Term Lenders.
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Schedule 1.1
Definitions
The following terms have the respective indicated meanings:
"Account Party" means (i) the Company, (ii) with respect to any Standby
Letter of Credit supporting the Existing IRBs, means the Company and either of
its Subsidiaries, R.J. Tower (KY) and R.J. Tower (IN), as the case may be, and
(iii) with respect to any Alternate Currency Letter of Credit or Alternate
Currency Standby Letter of Credit, the applicable Alternate Currency Account
Party.
"Acquisition" means any transaction or series of related transactions for
the purpose of or resulting, directly or indirectly, in (a) the acquisition of
all or substantially all of the assets of a Person, or of any business or
division of a Person, (b) the acquisition of in excess of 50% of the capital
stock, partnership interests, membership interests or equity of any Person, or
otherwise causing any Person to become a Subsidiary, or (c) a merger or
consolidation or any other combination with another Person (other than a Person
that is a Subsidiary), provided that the Company or a Subsidiary is the
surviving entity.
"Affected Lender" has the meaning specified in Section 3.8.
"Affiliate" means, as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control with,
such Person. A Person shall be deemed to control another Person if the
controlling Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of the other Person, whether
through the ownership of voting securities or membership interests, by contract,
or otherwise.
"Agent" means BofA in its capacity as agent for the Lending Party
hereunder, and any successor agent arising under Section 9.9.
"Agent-Related Persons" means BofA in its capacity as Agent and any
successor agent arising under Section 9.9, together with their respective
Affiliates (including, in the case of BofA, the Lead Arranger and Book Manager),
and the officers, directors, employees, agents and attorneys-in-fact of such
Persons and Affiliates.
"Agent's Payment Office" means the address for payments set forth on
Schedule 10.2 or such other address as the Agent may from time to time specify
to the Lending Parties and the Company in writing.
"Agreed Alternate Currency" has the meaning specified in Section 2.17(g).
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"Agreed Alternate Currency Account Party" has the meaning specified in
Section 2.17(g).
"Agreed Alternate Currency Borrower" has the meaning specified in Section
2.17(g).
"Agreement" means this Credit Agreement, including Exhibits and Schedules.
"Alternate Currency" at any time means Italian Lire and any Agreed
Alternate Currency.
"Alternate Currency Annex" means any Alternate Currency Annex with respect
to a particular Alternate Currency in substantially the form of Exhibit I.
"Alternate Currency Account Party" at any time with respect to a particular
Alternate Currency means the Company and the applicable Agreed Alternate
Currency Account Party for such Alternate Currency and with respect to Italian
Lire, and the Italian Borrower.
"Alternate Currency Borrower" at any time with respect to a particular
Alternate Currency means the Company and the applicable Agreed Alternate
Currency Borrower for such Alternate Currency and, with respect to Italian Lire,
and the Italian Borrower.
"Alternate Currency Commitment Amount" means $85,000,000, as such amount
may be increased from time to time at the request of the Company by the Required
Lenders.
"Alternate Currency Commitment Termination Date" with respect to a
particular Alternate Currency means the earlier of (i) the Commitment
Termination Date and (ii) the Alternate Currency Commitment Termination Date, if
any, specified in the applicable Alternate Currency Annex.
"Alternate Currency Credit Extension" has the meaning specified in Section
2.17(a).
"Alternate Currency LC Issuer" with respect to a particular Alternate
Currency means any Person designated on the applicable Alternate Currency Annex
as an Alternate Currency LC Issuer from time to time.
"Alternate Currency Lender" with respect to a particular Alternate Currency
means any Person designated on the applicable Alternate Currency Annex as an
Alternate Currency Lender from time to time.
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"Alternate Currency Letter of Credit" has the meaning specified in Section
2.17(a).
"Alternate Currency Letter of Credit Obligations" means Letter of Credit
Obligations with respect to Alternate Currency Letters of Credit.
"Alternate Currency Loan" has the meaning specified in Section 2.17(a).
"Alternate Currency Make-Whole Payment" with respect to any payment on a
particular date with respect to Alternate Currency Credit Extensions in which
participations have been purchased that have not been converted into obligations
denominated and payable in Dollars (the "Alternate Currency Participated Credit
Extensions"), means the amount, if any, by which (i) the sum of (A) the
Effective Amount as of the date on which the participations in the Alternate
Currency Participated Credit Extensions were purchased (the "Participation
Purchase Date") of the portion of the Alternate Currency Participated Credit
Extensions that has been paid (the "Initial Dollar Equivalent") plus (B) the
product of: (I) the Initial Dollar Equivalent multiplied by (II) the average
daily Base Rate during the period from the Participation Purchase Date to the
date on which such payment with respect to the Alternate Currency Participated
Credit Extensions is made (the "Participation Payment Date") multiplied by (III)
the number of days elapsed from the Participation Purchase Date to the
Participation Payment Date, exceeds (ii) the sum of (A) the Effective Amount as
of the Participation Payment Date of the portion of the Alternate Currency
Participated Credit Extensions that has been paid plus (B) the Dollar Equivalent
as of the Participation Payment Date of any interest that has accrued since the
Participation Purchase Date on the portion of the Alternate Currency
Participated Credit Extensions that has been paid.
"Alternate Currency Standby Letter of Credit" has the meaning specified in
Section 2.17(e).
"Alternate Currency Sublimit" means the Alternate Currency Sublimit for a
particular Alternate Currency set forth in the applicable Alternate Currency
Annex.
"Applicable Currency" as to any particular Loan or payment, means Dollars
or the Alternate Currency in which it is denominated or payable.
"Applicable Facility Fee" at any time means the relevant facility fee
determined from time to time under the Pricing Grid for Revolving Loans;
provided that (i) the initial Applicable Facility Fee shall be the facility fee
corresponding to Level V on the Pricing Grid until the date that the Agent is
supposed to receive the first financial statements and Compliance Certificate
required to be delivered under Sections 6.2(a) and (b), and (ii) in the event
that the Agent shall not have received when due any financial statement or
Compliance Certificate required to be delivered under Sections 6.2(a) and (b),
the Applicable Facility Fee shall be the facility fee corresponding to Level VI
on the
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Pricing Grid until the Agent has received all such financial statements and
Compliance Certificates.
"Applicable Letter of Credit Fee Rate" at any time means the relevant fee
rate for Letters of Credit determined from time to time under the Pricing Grid
for Revolving Loans; provided that (i) the initial Applicable Letter of Credit
Fee Rate shall be the fee rate for Letters of Credit corresponding to Level V on
the Pricing Grid for Revolving Loans until the date that the Agent is supposed
to receive the first financial statements and Compliance Certificate required to
be delivered under Sections 6.2(a) and (b), and (ii) in the event that the Agent
shall not have received when due any financial statement or Compliance
Certificate required to be delivered under Sections 6.2(a) and (b), the
Applicable Letter of Credit Fee Rate shall be the fee rate for Letters of Credit
corresponding to Level VI on the Pricing Grid for Revolving Loans until the
Agent has received all such financial statements and Compliance Certificates.
"Applicable Margin" at any time means the relevant margin for
Base Rate Loans or Offshore Rate Loans, as the case may be, determined from time
to time under the Pricing Grid for Revolving Loans; provided in the event that
the Agent shall not have received when due any financial statement or Compliance
Certificate required to be delivered under Sections 6.2(a) and (b), the
Applicable Margin shall be the margin for Base Rate Loans or Offshore Rate
Loans, as the case may be, corresponding to Level VI on the Pricing Grid for
Revolving Loans until the Agent shall have received all such financial
statements and Compliance Certificates. Each change in the Applicable Margin
shall take effect with respect to all outstanding Loans on the third Business
Day immediately succeeding the day on which the Compliance Certificate is
received by the Agent.
"Applicable Term Margin" at any time means the applicable percentage set
forth in the Pricing Grid for Term Loans opposite the then applicable Leverage
ratio as set forth on the most recent Compliance Certificate required to be
delivered under Section 6.2(a) provided that in the event the Agent shall not
have received when due any financial statement or Compliance Certificate
required to be delivered under Sections 6.2(a) and 6.2(b), the Applicable Term
Margin for Base Rate Loans or Offshore Rate Loans, as the case may be, shall be
the margin for Base Rate Loans or Offshore Rate Loans, as the case may be,
corresponding to a Leverage Ratio of 4.00 to 1 until the Agent shall have
received all such financial statements and Compliance Certificates; provided,
however, that for the period from the Restatement Date to the date which is
three (3) Business Days after the date upon which the Company shall have
delivered its September 30, 1999 financial statements and Compliance Certificate
as required by Section 6.2(b), the Applicable Term Margin for Base Rate Loans or
Offshore Rate Loans, as the case may be, shall be deemed to be the margin for
Base Rate Loans or Offshore Rate Loans, as the case may be, corresponding to a
Leverage Ratio of 3.00 to 1. Each change in the Applicable Term Margin shall
take effect with respect to all outstanding Loans on the third Business Day
immediately succeeding the day on which the Compliance Certificate is received
by the Agent.
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"Approved Foreign Subsidiary Borrower" means any Foreign Subsidiary which
is a Wholly-Owned Subsidiary of the Company and which is approved by the Agent,
which approval shall not be unreasonably withheld.
"Approved Parent Debt" means any unsecured Indebtedness issued by the
Parent, the proceeds of which are applied to the prepayment of the Revolving
Loans, which in each case (x) has no scheduled payments of principal before June
30, 2005, (y) has no Guaranty Obligation of the Company or any other Subsidiary
of the Parent in respect thereof, and (z) has terms and conditions which are
acceptable to the Agent in its reasonable discretion (including terms and
conditions with respect to amounts, covenants, defaults, maturities, remedies
and, if applicable, subordination).
"Assignable Credit Exposure" has the meaning specified in Section 3.9.
"Assignee" has the meaning specified in Section 10.8(a).
"Assignment and Acceptance" has the meaning specified in Section 10.8(a).
"Assumed Indebtedness" means Indebtedness of a Person existing at the time
such Person became a Subsidiary or assumed by the Company or a Subsidiary in a
Permitted Acquisition (and not created or incurred in anticipation of such
acquisition).
"Attorney Costs" means and includes all reasonable fees and disbursements
of any law firm or other external counsel, the allocated cost of internal legal
services and all disbursements of internal counsel.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of 1978 (11
U.S.C.ss.101, et seq.).
"Base Rate" means, for any day, the higher of (a) 0.50% per annum above the
latest Federal Funds Rate, and (b) the rate of interest in effect for such day
as publicly announced from time to time by BofA in San Francisco, California, as
its "reference rate." (The "reference rate" is a rate set by BofA based upon
various factors including BofA's costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing some
loans, which may be priced at, above, or below such announced rate.) Any change
in the reference rate announced by BofA shall take effect at the opening of
business on the day specified in the public announcement of such change.
"Base Rate Loan" means a Loan that bears interest based on the Base Rate.
"BofA" means Bank of America, National Association, a national banking
association.
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"Borrowing" means a borrowing hereunder consisting of Loans of the same
Type and in the same Applicable Currency made to a Credit Party on the same day
by one or more Lending Parties under Article II, and, in the case of Offshore
Rate Loans, having the same Interest Period.
"Borrowing Date" means any date on which a Borrowing occurs under Section
2.3, 2.15 or 2.17.
"Business Day" means any day other than a Saturday, Sunday or other day on
which commercial banks in New York City, Chicago or San Francisco or, with
respect to Alternate Currency Loans, the city in which the Lending Office of the
applicable Alternate Currency Lender or Alternate Currency LC Issuer is located,
are authorized or required by law to close and, if the applicable Business Day
relates to any Offshore Rate Loan, means such a day on which dealings are
carried on in the applicable offshore currency interbank market.
"Capital Adequacy Regulation" means any guideline, request or directive of
any central bank or other Governmental Authority, or any other law, rule or
regulation, whether or not having the force of law, in each case, regarding
capital adequacy of any bank or of any corporation controlling a bank.
"Capital Expenditures" means, for any period, without duplication, the sum
of:
(a) the gross amount of capital expenditures of the Company and its
Subsidiaries determined in accordance with GAAP made during such period; and
(b) to the extent not included in clause (a) above, the aggregate amount of
Capitalized Lease Liabilities incurred during such period by the Company and
its Subsidiaries (excluding the portion thereof allocable to interest
expense).
"Capitalized Lease Liabilities" of any Person means all monetary
obligations of such Person under any leasing or similar arrangement which, in
accordance with GAAP, are or would be classified as capitalized lease
obligations on a balance sheet of such Person.
"Cash Collateralize" means to pledge and deposit with or deliver to the
Agent, for the benefit of the Agent, any LC Issuer and the Revolving Lenders, as
collateral for the applicable Letter of Credit Obligations, cash or deposit
account balances pursuant to documentation in form and substance reasonably
satisfactory to the Agent and such LC Issuer (which documents are hereby
consented to by the Lenders). Derivatives of such term shall have corresponding
meaning. The Company hereby grants the Agent, for the benefit of the Agent, each
such LC Issuer and the Lenders, a security interest in all
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such cash and deposit account balances. Cash collateral shall be maintained in
blocked, interest bearing (to the extent available) deposit accounts at BofA.
"CERCLA" has the meaning specified in the definition of "Environmental
Laws."
"Change of Control" means any of (i) the acquisition by any "person" or
"group" (as such terms are used in sections 13(d) and 14(d) of the Exchange Act)
(other than Permitted Holders) at any time of beneficial ownership of thirty
percent (30%) or more of the outstanding capital stock of the Parent on a
fully-diluted basis, (ii) the failure of individuals who are members of the
board of directors of the Parent on the Restatement Date (together with any new
or replacement directors whose initial nomination for election was approved by a
majority of the directors who were either directors on the Restatement Date or
previously so approved) to constitute a majority of the board of directors of
the Parent or (iii) the failure of the Parent to own 100% of the outstanding
capital stock of the Company.
"Code" means the Internal Revenue Code of 1986 and regulations promulgated
thereunder.
"Commercial Letter of Credit" means any Letter of Credit which is drawable
upon presentation of a sight draft and other documents evidencing the sale or
shipment of goods purchased by the applicable Credit Party in the ordinary
course of business.
"Commitment" means, as to any Lender, such Lender's commitment to make
Loans under this Agreement.
"Commitment Termination Date" means the earlier to occur of:
(a) April 18, 2003; and
(b) the date on which the Revolving Commitments terminate in accordance
with the provisions of this Agreement.
"Company" has the meaning specified in the preamble.
"Compliance Certificate" means a certificate substantially in the form of
Exhibit D.
"Consolidated Tangible Assets" means, on any date, the consolidated total
assets of the Company and its Subsidiaries on such date, determined in
accordance with GAAP minus the consolidated intangible assets of the Company and
its Subsidiaries on such date, determined in accordance with GAAP.
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"Contingent Obligation" means, as to any Person, any direct or indirect
liability of that Person, whether or not contingent, with or without recourse,
(a) with respect to any Indebtedness, lease, dividend, letter of credit or other
obligation (the "primary obligations") of another Person (the "primary
obligor"), including any obligation of that Person (i) to purchase, repurchase
or otherwise acquire such primary obligations or any security therefor, (ii) to
advance or provide funds for the payment or discharge of any such primary
obligation, or to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency or any balance sheet
item, level of income or financial condition of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation, or (iv) otherwise to assure or hold
harmless the holder of any such primary obligation against loss in respect
thereof (each, a "Guaranty Obligation"); (b) with respect to any Surety
Instrument issued for the account of that Person or as to which that Person is
otherwise liable for reimbursement of drawings or payments; (c) to purchase any
materials, supplies or other property from, or to obtain the services of,
another Person if the relevant contract or other related document or obligation
requires that payment for such materials, supplies or other property, or for
such services, shall be made regardless of whether delivery of such materials,
supplies or other property is ever made or tendered, or such services are ever
performed or tendered, or (d) in respect of any Swap Contract. The amount of any
Contingent Obligation shall, in the case of Guaranty Obligations, be deemed
equal to the stated or determinable amount of the primary obligation in respect
of which such Guaranty Obligation is made or, if not stated or if
indeterminable, the maximum reasonably anticipated liability in respect thereof,
and in the case of other Contingent Obligations other than in respect of Swap
Contracts, shall be equal to the maximum reasonably anticipated liability in
respect thereof and, in the case of Contingent Obligations in respect of Swap
Contracts, shall be equal to the Swap Termination Value.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument, document or agreement to
which such Person is a party or by which it or any of its property is bound.
"Conversion/Continuation Date" means any date on which, under Section 2.1
or Section 2.4, the Company (a) converts Loans of one Type to another Type, or
(b) continues as Loans of the same Type, but with a new Interest Period, Loans
having Interest Periods expiring on such date.
"Credit Documents" means this Agreement, any Notes, the Fee Letter, the
Guaranty, the Pledge Agreements, any documents evidencing or relating to
Specified Swap Contracts, and all other documents delivered to the Agent or any
Lender in connection with the transactions contemplated by this Agreement.
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"Credit Extension" means a Letter of Credit Advance, Loan, Issuance of a
Letter of Credit or participation therein.
"Credit Party" means the Company, the Approved Foreign Subsidiary Borrower,
if any, any Account Party, Alternate Currency Borrower or Alternate Currency
Account Party, as the case may be.
"Debt/Capital Ratio" for any Reference Period means the ratio of (x) total
Indebtedness of the Parent and its Subsidiaries on the last day of such period
to (y) (i) stockholders' equity of the Parent on the last day of such period
determined in accordance with GAAP plus (ii) total Indebtedness of the Parent
and its Subsidiaries on the last day of such period.
"Debt Service Dividends" means cash dividends declared and made by the
Company to the Parent in such amounts and to the extent necessary to allow the
Parent to make any regularly scheduled payment of interest or the payment of
principal at maturity in respect of any Approved Parent Debt if and to the
extent that such payment is not prohibited at such time by the subordination
provisions or other applicable terms of such Approved Parent Debt or any
instrument governing such Approved Parent Debt.
"Default" means any event or circumstance which, with the giving of notice,
the lapse of time, or both, would (if not cured or otherwise remedied during
such time) constitute an Event of Default.
"Disposition" means (i) the sale, lease, conveyance or other disposition of
property, other than sales or other dispositions expressly permitted under
clauses (a) through (g) and clause (i) of Section 7.2, or (ii) the sale or
transfer by the Company or any Subsidiary of the Company of any equity
securities issued by any Subsidiary of the Company and held by such transferor
Person.
"Dollars", "dollars" and "$" each mean lawful money of the United States.
"Dollar Conversion Amount" has the meaning specified in Section 2.1(b)(ii).
"Dollar Equivalent" as of the date of determination, means (a) the amount
denominated in Dollars, and (b) as to any amount denominated in an Alternate
Currency or other currency, the equivalent amount in Dollars as determined by
the Agent on the basis of the Spot Rate for the purchase of Dollars with such
Alternate Currency; provided, that with respect to Letter of Credit Obligations
in Alternate Currencies that are valued as of the last Business Day of each
month, the equivalent amount in Dollars shall be determined by BofA in its
capacity as LC Issuer instead of the Agent; and provided further, that the
Dollar Equivalent of Alternate Currency Credit Extensions in which
participations are to be purchased pursuant to Section 2.17(e) is subject to the
approval of
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the applicable Alternate Currency Lender or Alternate Currency LC Issuer, as the
case may be, not to be unreasonably withheld.
"Domestic Subsidiary" means any Subsidiary that is organized under the laws
of the United States or any political subdivision thereof.
"EBIT" for any period means the consolidated net income (or loss) of the
Parent and its Subsidiaries for such period plus (to the extent deducted in
determining such net income (or loss)) the sum of the following: (i)
consolidated interest expense, plus, (ii) consolidated income tax expense, plus
(iii) extraordinary losses, minus (iv) extraordinary gains, plus (v) non-cash
charges associated with an announced restructuring or related charge (together,
"Non-Cash Restructuring Charges") minus (vi) the actual cash portion of
restructuring charges to the extent such charges were considered to be Non-Cash
Restructuring Charges in prior periods, in each case determined in accordance
with GAAP. For the purposes of calculating the Interest Coverage Ratio for any
Reference Period, EBIT shall be calculated on a pro forma basis (as certified by
the Parent to the Agent) assuming that all Acquisitions (and Assumed
Indebtedness, if any, in connection therewith) and all Dispositions that have
occurred during such Reference Period had occurred on the first day of such
Reference Period (but without adjustment for expected cost savings or other
synergies).
"EBITDA" for any period means EBIT for such period plus (to the extent
deducted in determining the consolidated net income (or loss) of the Parent and
its Subsidiaries for such period) consolidated depreciation, amortization and
similar non-cash charges, in each case determined in accordance with GAAP. For
the purposes of calculating the Leverage Ratio or the Senior Leverage Ratio for
any Reference Period, EBITDA shall be calculated on a pro forma basis (as
certified by the Parent to the Agent) assuming that all Acquisitions (and
Assumed Indebtedness, if any, in connection therewith) and all Dispositions that
have occurred during such Reference Period had occurred on the first day of such
Reference Period (but without adjustment for expected cost savings or other
synergies).
"Effective Amount" means (i) with respect to any Loans of any type on any
date, the Dollar Equivalent of the aggregate outstanding principal amount
thereof after giving effect to any Borrowings and prepayments or repayments of
Loans of such type occurring on such date; and (ii) with respect to any
outstanding Letter of Credit Obligations on any date, the Dollar Equivalent of
the amount of such Letter of Credit Obligations on such date after giving effect
to any Issuances of Letters of Credit occurring on such date and any other
changes in the aggregate amount of the Letter of Credit Obligations as of such
date, including as a result of any reimbursements of outstanding unpaid drawings
under any Letters of Credit or any reductions in the maximum amount available
for drawing under Letters of Credit taking effect on such date.
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"Eligible Assignee" means (a) a commercial bank organized under the laws of
the United States, or any state thereof, and having a combined capital and
surplus of at least $100,000,000; (b) a commercial bank organized under the laws
of any other country which is a member of the Organization for Economic
Cooperation and Development (the "OECD"), or a political subdivision of any such
country, and having a combined capital and surplus of at least $100,000,000 (or
its equivalent in other currencies), 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 also a member of the OECD; (c) a Person that is primarily
engaged in the business of commercial banking and that is (i) a Subsidiary of a
Lender, (ii) a Subsidiary of a Person of which a Lender is a Subsidiary, or
(iii) a Person of which a Lender is a Subsidiary; and (d) any other entity
approved by the Company and the Agent.
"Environmental Claims" means all claims, however asserted, by any
Governmental Authority or other Person alleging potential liability or
responsibility for violation of any Environmental Law; or for release or injury
to the environment or threat to public health, personal injury (including
sickness, disease or death), property damage, natural resources damage, or
otherwise alleging liability or responsibility for damages (punitive or
otherwise), cleanup, removal, remedial or response costs, restitution, civil or
criminal penalties, injunctive relief, or other type of relief, resulting from
or based upon the presence, placement, discharge, emission or release (including
intentional and unintentional, negligent and non-negligent, sudden or
non-sudden, accidental or non-accidental, placement, spills, leaks, discharges,
emissions or releases) of any Hazardous Material at, in, or from property,
whether or not owned by the Company.
"Environmental Laws" means all federal, national, state, provincial or
local laws, statutes, common law duties, rules, regulations, ordinances and
codes, together with all administrative orders, directed duties, requests,
licenses, authorizations and permits of, and agreements with, any Governmental
Authorities, in each case relating to environmental, health, safety and land use
matters; including the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 ("CERCLA"), the Clean Air Act, the Federal Water Pollution
Control Act of 1972, the Solid Waste Disposal Act, the Federal Resource
Conservation and Recovery Act, the Toxic Substances Control Act, and the
Emergency Planning and Community Right-to-Know Act.
"Environmental Permits" has the meaning specified in Section 5.12(b).
"ERISA" means the Employee Retirement Income Security Act of 1974, and
regulations promulgated thereunder.
"ERISA Affiliate" means any trade or business (whether or not incorporated)
under common control with the Company within the meaning of section 414(b) or
(c) of the Code (and sections 414(m) and (o) of the Code for purposes of
provisions relating to section 412 of the Code).
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"ERISA Event" means (a) a Reportable Event with respect to a Pension Plan;
(b) a withdrawal by the Company or any ERISA Affiliate from a Pension Plan
subject to section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in section 4001(a)(2) of ERISA) or a cessation
of operations which is treated as such a withdrawal under section 4062(e) of
ERISA; (c) a complete or partial withdrawal by the Company or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is
in reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under section 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which might reasonably be
expected to constitute grounds under section 4042 of ERISA for the termination
of, or the appointment of a trustee to administer, any Pension Plan or
Multiemployer Plan; or (f) the imposition of any liability under Title IV of
ERISA, other than PBGC premiums due but not delinquent under section 4007 of
ERISA, upon the Company or any ERISA Affiliate.
"Euro" means the single currency of participating member states of the
European Monetary Union.
"Euro Conversion Date" means the date specified in the Company's Notice of
Euro Conversion following satisfaction or waiver of the conditions specified in
Sections 4.2 and 4.4 with respect to the Company's exercise of its Euro
Conversion Option.
"Euro Conversion Option" has the meaning specified in Section 2.1(b)(ii).
"Eurodollar Reserve Percentage" means, for any day for any Interest Period
for Offshore Rate Loans, the maximum reserve percentage (expressed as a decimal,
rounded upward to the next 1/100th of 1%) in effect on such day (whether or not
applicable to any Lender hereunder) under regulations issued from time to time
by the FRB for determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement) with respect to
liabilities or assets consisting or including Eurocurrency funds or deposits
(currently known as "Eurocurrency liabilities").
"Event of Default" means any of the events or circumstances specified in
Section 8.1.
"Exchange Act" means the Securities Exchange Act of 1934 and regulations
promulgated thereunder.
"Existing IRBs" means any of (i) the $7,200,000 City of Auburn, Indiana
Floating/Fixed Rate Economic Development Revenue Bonds, Series 1988 (R.J. Tower
Corporation (Indiana) Project), (ii) the $25,000,000 City of Bardstown, Kentucky
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Variable Rate Demand Industrial Revenue Bonds, Series 1994 (R.J. Tower
Corporation Project) or (iii) the $20,000,000 City of Bardstown, Kentucky
Taxable Variable Rate Demand Industrial Revenue Bonds, Series 1995 (R.J. Tower
Corporation Project).
"Existing LC Issuer" means Comerica Bank.
"Existing Letters of Credit" means the letters of credit issued by the
Existing LC Issuer and described in Schedule 2.16; provided that BofA in its
capacity as LC Issuer shall have the right at any time to replace the Existing
Letters of Credit with new Letters of Credit.
"Facility" means any of the credit facilities established under this
Agreement, i.e., the Revolving Loan Facility, the Term A Dollar Facility or the
Term A Euro Facility.
"FDIC" means the Federal Deposit Insurance Corporation, and any
Governmental Authority succeeding to any of its principal functions.
"Federal Funds Rate" means, for any day, the rate set forth in the weekly
statistical release designated as H.15(519), or any successor publication,
published by the Federal Reserve Bank of New York (including any such successor,
"H.15(519)") on the preceding Business Day opposite the caption "Federal Funds
(Effective)"; or, if for any relevant day such rate is not so published on any
such preceding Business Day, the rate for such day will be the arithmetic mean
as determined by the Agent of the rates for the last transaction in overnight
Federal funds arranged prior to 9:00 a.m. (New York City time) on that day by
each of three leading brokers of Federal funds transactions in New York City
selected by the Agent.
"Financial Letter of Credit" means any Standby Letter of Credit which the
applicable LC Issuer determines is required under applicable laws, regulations,
rules or orders issued by a Governmental Authority to be classified as a
financial letter of credit.
"Foreign Cash Investments" means any investment rated P-1 or A-1 or better
by Moody's Investors Service, Inc. or Standard & Poor's Ratings Services,
respectively, (i) in direct obligations issued by, or guaranteed by, the
government of a country that is a member of the OECD or any agency or
instrumentality thereof, provided that such obligations mature within 180 days
of the date of acquisition thereof, and (ii) in time deposits or negotiable
certificates of deposit or money market securities issued by any commercial
banking institution that is a member of an applicable central bank of a country
that is a member of the OECD having surplus of at least $500,000,000 in the
aggregate at all times, payable on demand or maturing within 180 days of the
acquisition thereof; provided that with respect to such time deposits,
negotiable certificates of deposit and money market securities, the Required
Lenders and the Required Term Lenders shall have at any time the right, upon
notice to the Company, to reject any such bank as a bank in which such Foreign
Cash Investments may be made.
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"Foreign Subsidiary" means each Subsidiary that is not a Domestic
Subsidiary.
"Foreign Subsidiary Borrower" means, with respect to the Term A Euro Loans,
the Approved Foreign Subsidiary Borrower, if any, and, with respect to the
Italian Euro Term Loan, the Italian Borrower.
"Foreign 956 Subsidiary" means any Material Subsidiary that is a Foreign
Subsidiary a guaranty of the Obligations by which would result in a material
deemed dividend of its current and accumulated earnings and profits under
section 956 of the Code.
"FRB" means the Board of Governors of the Federal Reserve System, and any
Governmental Authority succeeding to any of its principal functions.
"Funded Indebtedness" of a Person means Indebtedness of such Person and its
subsidiaries to the extent set forth on a consolidated balance sheet determined
on a consolidated basis in accordance with GAAP.
"Further Taxes" means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, fees, withholdings or similar charges
(including net income taxes and franchise taxes), and all liabilities with
respect thereto, imposed by any jurisdiction on account of amounts payable or
paid pursuant to Section 3.1.
"FX Trading Office" means the BofA Foreign Exchange Trading Desk in
Chicago, Illinois, or such other office or source of information as the Agent
may designate with the concurrence of the Company.
"GAAP" means generally accepted accounting principles set forth from time
to time in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority within the U.S. accounting
profession), which are applicable to the circumstances as of the date of
determination.
"Governmental Authority" means any nation or government, any state or other
political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government,
and any corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
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"Guarantor" means any of (i) the Parent, (ii) the Company, (iii) each
Domestic Subsidiary and (iv) each Foreign Subsidiary that is a Material
Subsidiary but is not a Foreign 956 Subsidiary.
"Guaranty" means the Guaranty executed by each Guarantor for the benefit of
the Agent for the benefit of the Secured Parties in substantially the form of
Exhibit G.
"Guaranty Obligation" has the meaning specified in the definition of
"Contingent Obligation."
"Hazardous Materials" means all those substances that are regulated by, or
which may form the basis of liability under, any Environmental Law, including
any substance identified under any Environmental Law as a pollutant,
contaminant, hazardous waste, hazardous constituent, special waste, hazardous
substance, hazardous material, or toxic substance, or petroleum or petroleum
derived substance or waste.
"H.15 (519)" has the meaning specified in the definition of "Federal Funds
Rate."
"Honor Date" has the meaning specified in Section 2.16.3(b).
"Indebtedness" of any Person means, without duplication, (a) all
indebtedness for borrowed money; (b) all obligations issued, undertaken or
assumed as the deferred purchase price of property or services (other than trade
payables entered into and accrued expenses incurred, in each case in the
ordinary course of business on ordinary terms); (c) all non-contingent
reimbursement or payment obligations with respect to Surety Instruments; (d) all
obligations evidenced by notes, bonds, debentures or similar instruments,
including obligations so evidenced incurred in connection with the acquisition
of property, assets or businesses; (e) all indebtedness created or arising under
any conditional sale or other title retention agreement, or incurred as
financing, in either case with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such property); (f)
all obligations with respect to capital leases; (g) all indebtedness referred to
in clauses (a) through (f) above secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any Lien upon or in property (including accounts and contracts rights) owned by
such Person, even though such Person has not assumed or become liable for the
payment of such Indebtedness; and (h) all Guaranty Obligations in respect of
indebtedness or obligations of others of the kinds referred to in clauses (a)
through (g) above; provided that Indebtedness shall not include sales of
Permitted Receivables sold pursuant to Permitted Receivables Purchase Facilities
and indemnification, recourse or repurchase obligations thereunder. For all
purposes of this Agreement, the Indebtedness of any Person shall include all
recourse Indebtedness of any partnership or joint venture or
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limited liability company in which such Person is a general partner or a joint
venturer or a member.
"Indemnified Environmental Liabilities" has the meaning specified in
Section 10.5(b).
"Indemnified Liabilities" has the meaning specified in Section 10.5(a).
"Indemnified Person" has the meaning specified in Section 10.5.
"Independent Auditor" has the meaning specified in Section 6.1(a).
"Ineligible Securities" has the meaning specified in Section 7.7(b).
"Insolvency Proceeding" means, with respect to any Person, (a) any case,
action or proceeding with respect to such Person before any court or other
Governmental Authority relating to bankruptcy, reorganization, insolvency,
liquidation, receivership, dissolution, winding-up or relief of debtors, or (b)
any general assignment for the benefit of creditors, composition, marshalling of
assets for creditors, or other, similar arrangement in respect of its creditors
generally or any substantial portion of its creditors, undertaken under U.S.
Federal, state or foreign law, including the Bankruptcy Code.
"Interest Coverage Ratio" for any Reference Period means the ratio of (x)
EBIT for such period to (y) the consolidated interest expense (excluding
amortization of deferred financing costs, any interest expense on deferred
compensation arrangements and original issue discount) of the Parent and its
Subsidiaries for such period; provided, that the Interest Coverage Ratio for the
Reference Periods ending on the second and third fiscal quarters ending after
the Original Closing Date shall be calculated as if such Reference Period only
included those fiscal quarters ending after the Original Closing Date.
"Interest Payment Date" means, as to any Loan other than a Base Rate Loan,
the last day of each Interest Period applicable to such Loan and, as to any Base
Rate Loan, the last Business Day of each calendar quarter and each date such
Loan is converted into another Type of Loan; provided that, if any Interest
Period for an Offshore Rate Loan exceeds three months, the date that falls three
months after the beginning of such Interest Period and after each Interest
Payment Date thereafter is also an Interest Payment Date.
"Interest Period" as to any Offshore Rate Loan means the period commencing
on the Borrowing Date of such Loan or on the Conversion/Continuation Date on
which such Loan is converted into or continued as an Offshore Rate Loan, and
ending on the date seven days (in the case of Revolving Loans only), or one,
two, three, six or, if available to all of the Lenders on such Borrowing Date,
twelve months
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thereafter, as selected by the Company in its Notice of Borrowing or Notice of
Conversion/Continuation; provided that:
(i) if any Interest Period would otherwise end on a day that is not
a Business Day, such Interest Period shall be extended to the following
Business Day unless, the result of such extension would be to carry such
Interest Period into another calendar month, in which event such Interest
Period shall end on the preceding Business Day;
(ii) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on
the last Business Day of the calendar month at the end of such Interest
Period;
(iii) no Interest Period for any Revolving Loan shall extend beyond
the Commitment Termination Date;
(iv) no Interest Period for any Term Loan shall extend beyond the
Term A Loan Maturity Date; and
(v) if such Interest Period is seven days, the principal amount
of the applicable Offshore Rate Loan, together with all other outstanding
Offshore Rate Loans having an original Interest Period of seven days, shall
not exceed $20,000,000 in the aggregate.
"Investment" means, relative to any Person:
(a) any loan, advance, extension of credit or capital contribution
made by such Person to any other Person (excluding commission, travel and
similar advances to officers and employees made in the ordinary course of
business);
(b) any Contingent Obligation of such Person with respect to any
other Person;
(c) any capital stock, equity interest, securities or other
obligations or interests held by such Person in or with respect to any
other Person; and
(d) any Acquisition by such Person with respect to any other
Person.
The amount of any Investment shall be the original principal or capital
amount thereof less all returns of principal or equity thereon (and without
adjustment by reason of the financial condition of such other Person) and shall,
if made by the transfer or exchange of property other than cash, be deemed to
have been made in an original principal or capital amount equal to the fair
market value of such property.
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"IRS" means the Internal Revenue Service, and any Governmental Authority
succeeding to any of its principal functions under the Code.
"Issuance" means, with respect to any Letter of Credit, the issuance,
extension of the expiry of, renewal or increase in the amount of such Letter of
Credit. "Issue," "Issued" and "Issuing" have corresponding meanings.
"Issuance Date" has the meaning specified in Section 2.16.1(a).
"Italian Borrower" means Tower Italia S.r.l., a corporation organized under
the laws of Italy.
"Italian Euro Term Commitment" means, with respect to the Italian Euro Term
Lender, the commitment, if any, of such Italian Euro Term Lender to make the
Italian Euro Term Loan hereunder. The amount of the Italian Euro Term Lender's
Italian Euro Term Commitment as of the Restatement Date is ______________ Euros
[APPROXIMATELY $20,000,000].
"Italian Euro Term Lender" means Bank of America, National Association,
Milano Branch, or any Affiliate of BofA which it may designate as the Italian
Euro Term Lender.
"Italian Euro Term Loan" has the meaning assigned to such term in Section
2.1(c).
"Italian Euro Term Loan Closing Date" means the date upon which all of the
conditions set forth in Section 4.3 have been satisfied.
"Italian Euro Term Note" means a promissory note in substantially the form
of Exhibit F-5 hereto.
"Italian Euro Term Pro Rata Share" means, when used with reference to any
Italian Euro Term Lender and any described aggregate or total amount, an amount
equal to the result obtained by multiplying such described aggregate or total
amount by a fraction, the numerator of which shall be such Italian Euro Term
Lender's then outstanding Italian Euro Term Loan and the denominator of which
shall be all then outstanding Italian Euro Term Loans.
"Italian Euro Term Loan Maturity Date" means June 30, 2004.
"Joint Venture" means a single-purpose corporation, partnership, limited
liability company, joint venture or other similar legal arrangement (whether
created by contract or conducted through a separate legal entity) now or
hereafter formed by the Company or any of its Subsidiaries with another Person
in order to conduct a common venture or enterprise with such Person.
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"Judgment Currency" has the meaning specified in Section 10.19.
"LC Issuer" means (i) BofA and any other Lenders added upon the mutual
consent of the Company, each Alternate Currency Lender, each Alternate Currency
LC Issuer and the Agent, in each case not to be unreasonably withheld, and any
such Lender, (ii) with respect to the Existing Letters of Credit, the Existing
LC Issuer until BofA shall have issued Letters of Credit to replace the Existing
Letters of Credit and (iii) with respect to Alternate Currency Letters of Credit
in a particular Alternate Currency, the applicable Alternate Currency LC Issuer.
"Lead Arranger and Book Manager" means Banc of America Securities, LLC, a
Delaware limited liability company.
"Lender" means any of the institutions specified in the introductory clause
hereto. Unless the context otherwise clearly requires, "Lender" includes any
such institution in its capacity as Swap Provider. Unless the context otherwise
clearly requires, references to any such institution as a "Lender" shall also
include any of such institution's Affiliates that may at any time of
determination be Swap Providers.
"Lending Office" means, (i) as to any Lender, the office or offices of such
Lender specified as its "Domestic Lending Office" or "Offshore Lending Office",
as the case may be, on Schedule 10.2, (ii) as to any Alternate Currency Lender,
the office of such Alternate Currency Lender specified in the Alternate Currency
Annex, or such other office or offices as any Lending Party may from time to
time notify the Company and the Agent.
"Lending Party" means any Lender, Alternate Currency Lender or LC Issuer
(including any Alternate Currency LC Issuer), as the case may be.
"Letter of Credit" means a Commercial Letter of Credit or a Standby Letter
of Credit, as the context may require or allow, including the Existing Letters
of Credit and the Alternate Currency Letters of Credit.
"Letter of Credit Advance" means each Lender's participation in any Letter
of Credit Borrowing under Section 2.16.3.
"Letter of Credit Amendment Application" means an application form for
amendment of outstanding Standby Letters of Credit or Commercial Letters of
Credit as shall at any time be in use at the applicable LC Issuer, as such LC
Issuer shall request.
"Letter of Credit Application" means an application form for issuances of
Standby Letters of Credit or Commercial Letters of Credit as shall at any time
be in use at the applicable LC Issuer, as such LC Issuer shall request.
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"Letter of Credit Borrowing" means each drawing under any Letter of Credit
that is not reimbursed under Section 2.16.3 or converted into a Borrowing of
Revolving Loans under Section 2.16.3.
"Letter of Credit Commitment" has the meaning specified in Section 2.16.1.
"Letter of Credit Commitment Amount" means the lesser of (a) $75,000,000
plus the Effective Amount of all Letter of Credit Obligations with respect to
Alternate Currency Standby Letters of Credit and (b) the Total Commitment
Amount.
"Letter of Credit Obligations" means the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit and (b) the aggregate amount of all
unreimbursed drawings under all Letters of Credit, whether or not outstanding,
including all outstanding Letter of Credit Borrowings.
"Letter of Credit Related Document means the Letters of Credit, the Letter
of Credit Applications, the Letter of Credit Amendment Applications and any
other document relating to any Letter of Credit, including any of the applicable
LC Issuer's standard form documents for letter of credit Issuance.
"Leverage Ratio" for any Reference Period means the ratio of (x) Funded
Indebtedness of the Parent and its Subsidiaries on the last day of such period
to (y) EBITDA for such period.
"Lien" means any security interest, mortgage, deed of trust, pledge,
hypothecation, assignment, charge or deposit arrangement, encumbrance, lien
(statutory or other) or preferential arrangement of any kind or nature
whatsoever in respect of any property (including those created by, arising under
or evidenced by any conditional sale or other title retention agreement, the
interest of a lessor under a capital lease, any financing lease having
substantially the same economic effect as any of the foregoing, or the filing of
any financing statement naming the owner of the asset to which such lien relates
as debtor, under the Uniform Commercial Code or any comparable law) and any
contingent or other agreement to provide any of the foregoing, but not including
the interest of a lessor under an operating lease or the interest of a purchaser
of Permitted Receivables under any Permitted Receivables Purchase Facility.
"Loan" means an extension of credit by a Lending Party to a Credit Party
under Article II, and may be a Base Rate Loan or an Offshore Rate Loan (each, a
"Type" of Loan), and includes any Alternate Currency Loan, Term A Dollar Loan,
Term A Euro Loan, Italian Euro Term Loan, Revolving Loan or Swingline Loan.
"Margin Stock" means "margin stock" as such term is defined in Regulation
T, U or X of the FRB.
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"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, condition
(financial or otherwise) or prospects of the Company or the Company and its
Subsidiaries taken as a whole; (b) a material impairment of the ability of the
Company or any Subsidiary to perform under any Credit Document and to avoid any
Event of Default in each case with respect to a payment or other material
obligation; or (c) a material adverse effect upon the legality, validity,
binding effect or enforceability against the Company or any Subsidiary of any
Credit Document.
"Material Subsidiary" means at any time any Subsidiary of the Company
which, together with its Subsidiaries, has either (i) at least 10% of the
consolidated total assets of the Company and its Subsidiaries or (ii) at least
10% of the consolidated total revenues of the Company and its Subsidiaries for
the last full fiscal year.
"Multiemployer Plan" means a "multiemployer plan", within the meaning of
section 4001(a)(3) of ERISA, to which the Company or any ERISA Affiliate makes,
is making, or is obligated to make contributions or, during the preceding three
calendar years, has made, or been obligated to make, contributions.
"Net Worth" on any date means the consolidated stockholders' equity of the
Company and its Subsidiaries on such date.
"Non-Financial Letter of Credit" means any Standby Letter of Credit that is
not a Financial Letter of Credit.
"Note" means a Revolving Note, a Swingline Note, or a Term Note, as the
context may require or allow.
"Notice of Borrowing" means a notice in substantially the form of Exhibit
A.
"Notice of Conversion/Continuation" means a notice in substantially the
form of Exhibit B.
"Notice of Euro Conversion" means a notice substantially in the form of
Exhibit J.
"Obligations" means all advances, debts, liabilities, obligations,
covenants and duties arising under any Credit Document owing by any Credit Party
to any Lending Party, the Agent, or any Indemnified Person, whether direct or
indirect (including those acquired by assignment), absolute or contingent, due
or to become due, now existing or hereafter arising.
"OECD" has the meaning specified in the definition of "Eligible Assignee."
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"Offshore Rate" means, for any Borrowing of Offshore Rate Loans for any
Interest Period, (i) with respect to Offshore Rate Loans in Dollars, the rate of
interest per annum (rounded upward, if necessary, to the next 1/100th of 1%)
determined by the Agent as the rate at which deposits in U.S. Dollars in the
approximate amount of the Offshore Rate Loan of BofA included in such Borrowing
(or, if BofA does not have a Loan included in such Borrowing, in the amount of
U.S. $5,000,000), and having a maturity comparable to such Interest Period, are
offered by BofA's Grand Cayman Branch, Grand Cayman, B.W.I. (or such other
office as may be designated by BofA) to major banks in the offshore interbank
market at approximately 9:00 a.m. (San Francisco time) two Business Days prior
to the commencement of such Interest Period; (ii) with respect to Term A Euro
Loans, the rate of interest per annum (rounded upward, if necessary, to the next
1/100th of 1%) determined by the Agent as the rate at which Euro deposits in the
approximately amount of the Offshore Rate Loan of Bank of America included in
such Borrowing (or, if BofA does not have a Loan included in such Borrowing, in
a Dollar Equivalent amount, rounded to a convenient number of approximately U.S.
$5,000,000), and having a maturity comparable to such Interest Period, are
offered by BofA's Grand Cayman Branch, Grand Cayman, B.W.I. (or such other
office as may be designated by BofA) to major banks in the offshore interbank
market at approximately 9:00 a.m. (San Francisco time) two Business Days prior
to (or on such other date as is customary in the relevant offshore interbank
market) the commencement of such Interest Period; or (iii) with respect to
Italian Euro Term Loans, the rate of interest per annum (rounded upward, if
necessary to the next 1/100th of 1%) determined by the Italian Euro Term Lender
as the rate at which Euro deposits in the approximately amount of the Offshore
Rate Loan of the Italian Euro Term Lender and having a maturity comparable to
such Interest Period, and offered by BofA's Milan Branch to major banks in the
offshore interbank market at approximately 10:00 a.m. (Milan time) the Business
Day prior to (or on such other dates as is customary in the relevant offshore
interbank market) the commencement of such Interest Period.
The Offshore Rate shall be adjusted automatically as to all Offshore Rate
Loans then outstanding as of the effective date of any change in the Eurodollar
Reserve Percentage such that the "Offshore Rate" shall be the rate set forth
above divided by one minus the Eurodollar Reserve Percentage.
"Offshore Rate Loan" means a Loan that bears interest based on the Offshore
Rate.
"Organization Documents" means, for any corporation, the certificate or
articles of incorporation, the bylaws, any certificate of determination or
instrument relating to the rights of preferred shareholders of such corporation,
any shareholder rights agreement, and all applicable resolutions of the board of
directors (or any committee thereof) of such corporation.
"Original Closing Date" means April 18, 1997.
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"Original Currency" has the meaning specified in Section 10.19.
"Original Credit Agreement" has the meaning specified in the introductory
paragraphs hereto
"Originating Lender" has the meaning specified in Section 10.8(d).
"Other Taxes" means any present or future stamp, court or documentary taxes
or any other excise or property taxes, charges or similar levies which arise
from any payment made hereunder or from the execution, delivery, performance,
enforcement or registration of, or otherwise with respect to, this Agreement or
any other Credit Documents.
"Parent" means Tower Automotive, Inc., a Delaware corporation.
"Participant" has the meaning specified in Section 10.8(d).
"PBGC" means the Pension Benefit Guaranty Corporation, or any Governmental
Authority succeeding to any of its principal functions under ERISA.
"Pension Plan" means a pension plan (as defined in section 3(2) of ERISA)
subject to Title IV of ERISA (other than a Multiemployer Plan) which the Company
or any ERISA Affiliate sponsors, maintains, or to which it makes, is making, or
is obligated to make contributions, or in the case of a multiple employer plan
(as described in section 4064(a) of ERISA) has made contributions at any time
during the immediately preceding five (5) plan years.
"Permitted Acquisition" means an Acquisition (i) that has been approved by
the board of directors of each of the subject Persons, (ii) in which the Person
or Persons other than the Company and its Subsidiaries that are subject to such
Acquisition are in substantially the same or related line of business as the
Company, and (iii) after giving pro forma effect to which, would not give rise
to a Default or an Event of Default and the Company would be able to incur $1 of
Permitted Additional Indebtedness.
"Permitted Additional Indebtedness" means Indebtedness of the Company
which, after giving pro forma effect to the creation, assumption or incurrence
thereof, would not constitute a Default or Event of Default.
"Permitted Holders" means collectively, Onex Corporation and its
Subsidiaries, J2R Partners, S.A. Johnson, Scott D. Rued, Dugald K. Campbell,
James R. Lozelle and W. H. Clement.
"Permitted Joint Ventures" mean Joint Ventures in which the aggregate
amount of Investments by the Company and its Subsidiaries in any fiscal year
does not
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exceed 10% of the Consolidated Tangible Assets for such fiscal year
measured as of the date of the last such Investment with respect to Joint
Ventures at any time in such fiscal year based on the last financial statements
delivered by the Company pursuant to Section 6.1.
"Permitted Liens" has the meaning specified in Section 7.1.
"Permitted Receivables" means all obligations of any obligor (whether now
existing or hereafter arising) under a contract for sale of goods or services by
the Company or any of its Subsidiaries, which shall include any obligation of
such obligor (whether now existing or hereafter arising) to pay interest,
finance charges or amounts with respect thereto, and, with respect to any of the
foregoing receivables or obligations, (a) all of the interest of the Company or
any of its Subsidiaries in the goods (including returned goods) the sale of
which gave rise to such receivable or obligation after the passage of title
thereto to any obligor, (b) all other Liens and property subject thereto from
time to time purporting to secure payment of such receivables or obligations,
and (c) all guarantees, insurance, letters of credit and other agreements or
arrangements of whatever character from time to time supporting or securing
payment of any such receivables or obligations.
"Permitted Receivables Purchase Facility" means any agreement of the
Company or any of its Subsidiaries providing for sales, transfers or conveyances
of Permitted Receivables purporting to be sales (and considered sales under
GAAP) that do not provide, directly or indirectly, for recourse against the
seller of such Permitted Receivables (or against any of such seller's
Affiliates) by way of a guaranty or any other support arrangement, with respect
to the amount of such Permitted Receivables (based on the financial condition or
circumstances of the obligor thereunder), other than such limited recourse as is
reasonable given market standards for transactions of a similar type, taking
into account such factors as historical bad debt loss experience and obligor
concentration levels; provided that the aggregate gross proceeds received by the
Company and its Subsidiaries from the sale of Permitted Receivables cannot
exceed $100,000,000.
"Permitted Swap Obligations" means all obligations (contingent or
otherwise) of the Company or any Subsidiary existing or arising under Swap
Contracts, provided that each of the following criteria is satisfied: (a) such
obligations are (or were) entered into by such Person in the ordinary course of
business for the purpose of directly mitigating risks associated with
liabilities, commitments or assets held or reasonably anticipated by such
Person, or changes in the value of securities issued by such Person in
conjunction with a securities repurchase program not otherwise prohibited
hereunder, and not for purposes of speculation or taking a "market view;" and
(b) such Swap Contracts do not contain (i) any provision ("walk-away" provision)
exonerating the non-defaulting party from its obligation to make payments on
outstanding transactions to the defaulting party, or (ii) with respect to any
Swap Contract that is not a Specified Swap Contract, any provision creating or
permitting the declaration of an event of default, termination event
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<PAGE> 119
or similar event upon the occurrence of an Event of Default hereunder (other
than an Event of Default under Section 8.1(a)).
"Person" means an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated association,
joint venture or Governmental Authority.
"Plan" means an employee benefit plan (as defined in section 3(3) of ERISA)
which the Company or any ERISA Affiliate sponsors or maintains or to which the
Company or any ERISA Affiliate makes, is making, or is obligated to make
contributions and includes any Pension Plan.
"Pledge Agreement" means any Pledge Agreement executed by a Pledgor for the
benefit of the Agent for the benefit of the Secured Parties in substantially the
form of Exhibit H.
"Pledgor" means any of the Company or its Subsidiaries that is the record
owner of outstanding capital stock of a Foreign 956 Subsidiary.
"Pricing Grid" means the applicable pricing grid set forth in Schedule 2.9.
"Quoted Rate" means the interest rate as may be agreed upon from time to
time by the Company and the Swingline Lender.
"Reference Period" on any date means the four fiscal quarter period then or
most recently ended.
"Refinancing Indebtedness" means Indebtedness created or incurred for the
purpose of refinancing Indebtedness, provided that (i) the final maturity of
such Refinancing Indebtedness shall not be earlier than that of the Indebtedness
refinanced, (ii) the weighted average life of such Refinancing Indebtedness
shall not be less than that of the Indebtedness refinanced, (iii) the aggregate
principal amount of such Refinancing Indebtedness does not exceed that of the
Indebtedness refinanced plus any premium payable in connection with such
refinancing pursuant to the terms of such Indebtedness so refinanced, and (iv)
if the refinanced Indebtedness is Subordinated Indebtedness, such Refinancing
Indebtedness is also Subordinated Indebtedness.
"Replacement Lender" has the meaning specified in Section 3.8.
"Reportable Event" means any of the events set forth in section 4043(b) of
ERISA or the regulations thereunder, other than any such event for which the
30-day notice requirement under ERISA has been waived in regulations issued by
the PBGC.
"Required Lenders" means at any time Lenders then holding more than 50% of
the then aggregate unpaid principal amount of the Revolving Loans, or, if no
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amounts are outstanding, Lenders then having more than 50% of the aggregate
amount of the Revolving Commitments.
"Required Term Lenders" means the Term Lenders the sum of whose outstanding
Term Loans (with any portion of such Term Loans denominated in Euros calculated
on a Dollar Equivalent basis, constituting greater than 50% of the total
outstanding Dollar Equivalent amount of Term Loans.
"Requirement of Law" means, as to any Person, any law (statutory or
common), treaty, rule or regulation or determination of an arbitrator or of a
Governmental Authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is
subject.
"Responsible Officer" means the chief executive officer or the president or
a vice president of a Person, or any other officer having substantially the same
authority and responsibility; or, with respect to compliance with financial
covenants, the chief financial officer, the treasurer or the assistant treasurer
of a Person, or any other officer having substantially the same authority and
responsibility. Unless the context otherwise clearly requires, references herein
to a "Responsible Officer" refer to a Responsible Officer of the Company.
"Restatement Date" means the date on which all conditions precedent set
forth in Section 4.1 are satisfied or waived by all Term Lenders and the
Required Lenders (or, in the case of Section 4.1(f), waived by the Person
entitled to receive such payment).
"Revolver Pro Rata Share" means, as to any Lender at any time, the
percentage equivalent (expressed as a decimal, rounded to the ninth decimal
place) at such time of such Lender's Revolving Commitment divided by the Total
Commitment Amount of all Lenders.
"Revolving Commitment" has the meaning specified in Section 2.1.
"Revolving Lender" means each Lender having a Revolving Commitment
hereunder.
"Revolving Loan" has the meaning specified in Section 2.1.
"Revolving Note" means a promissory note in substantially the form of
Exhibit F-1.
"R.J. Tower (IN)" means R.J. Tower Corporation, an Indiana corporation and
a Subsidiary of the Company.
"R.J. Tower (KY)" means R.J. Tower Corporation, a Kentucky corporation and
a Subsidiary of the Company.
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<PAGE> 121
"Scheduled Italian Euro Term Repayments" means, with respect to the
principal payments on the Italian Euro Term Loan for each date set forth below,
the amount equal to the percentage of Italian Euro Term Loan made on the
Restatement Date set forth opposite thereto, as reduced from time to time
pursuant to Section 2.6:
Scheduled Italian Euro Term Repayments
Date Repayment
---- ---------
September 30, 2002 12.5%
December 31, 2002 12.5%
March 31, 2003 12.5%
June 30, 2003 12.5%
September 30, 2003 12.5%
December 31, 2003 12.5%
March 31, 2004 12.5%
June 30, 2004 12.5%
"Scheduled Term A Dollar Repayments" means, with respect to the principal
payments on the Term A Dollar Loans for each date set forth below, the amount
equal to the percentage of Term A Dollar Loans made on the Restatement Date set
forth opposite thereto, as reduced from time to time pursuant to Section 2.5,
provided that on the Euro Conversion Date, the aggregate Dollar Conversion
Amount shall be applied to reduce pro rata each of the then remaining Scheduled
Term A Dollar Repayments occurring after the Euro Conversion Date:
Scheduled Term A Dollar Repayments
Date Repayment
---- ---------
September 30, 2002 12.5%
December 31, 2002 12.5%
March 31, 2003 12.5%
June 30, 2003 12.5%
September 30, 2003 12.5%
December 31, 2003 12.5%
March 31, 2004 12.5%
June 30, 2004 12.5%
"Scheduled Term A Euro Repayments" means, with respect to the principal
payments on the Term A Euro Loans, if any, for each date occurring after the
Euro Conversion Date which would have been a date for a Scheduled Term A Dollar
Repayment had such Loans remained as a Term A Dollar Loans, the amount of Euro
(based on the Spot Rate on the Conversion Date) which is equivalent to the
Dollar amount of the reduction in the corresponding Scheduled Term A Dollar
Repayment
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<PAGE> 122
pursuant to the proviso in the definition thereof, as reduced from time to time
pursuant to Section 2.6:
"Scheduled Term A Repayments" means, collectively, the Scheduled Term A
Dollar Repayments and the Scheduled Term A Euro Repayments.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Secured Parties" means, collectively, the Agent, each LC Issuer (including
each Alternate Currency LC Issuer), the Swap Providers, the Lenders, the
Alternate Currency Lenders and any other Person entitled to indemnification
pursuant to Section 10.5.
"Senior Leverage Ratio" for any Reference Period means the ratio of (x)
total Indebtedness of the Parent and its Subsidiaries, excluding any
Subordinated Indebtedness, Approved Parent Debt which is subordinated in right
of payment to the Obligations and related Guaranty Obligations on the last day
of such period to (y) EBITDA for such period.
"Solvent" means, as to any Person at any time, that (a) the fair value of
the property (on a going concern basis) of such Person is greater than the
amount of such Person's liabilities (including disputed, contingent and
unliquidated liabilities) as such value is established and liabilities evaluated
for purposes of Section 101(31) of the Bankruptcy Code and, in the alternative,
for purposes of the New York Uniform Fraudulent Transfer Act; (b) the present
fair saleable value of the property (on a going concern basis) 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 is
able to realize upon its property and pay its debts and other liabilities
(including disputed, contingent and unliquidated liabilities) as they mature in
the normal course of business; (d) 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 (e) 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 unreasonably
small capital.
"Specified Swap Amount" means, at any time, in respect of Specified Swap
Contracts to which any Swap Provider is party, the Swap Termination Value
relating thereto; provided that for purposes of this definition, any Swap
Termination Value that is negative as to (i.e., owing by) any Swap Provider
shall be deemed equal to zero (0).
"Specified Swap Contract" means any Swap Contract made or entered into at
any time, or in effect at any time (whether heretofore or hereafter), whether
directly or
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<PAGE> 123
indirectly, and whether as a result of assignment or transfer or otherwise,
between the Company or any Foreign Subsidiary of the Company and any Swap
Provider which Swap Contract is or was intended by the Company to have been
entered into, in part or entirely, for purposes of mitigating interest rate or
currency exchange risk relating to any Loan (which intent shall conclusively be
deemed to exist if the Company so represents to the Swap Provider in writing),
and as to which the final scheduled payment by the Company or such Foreign
Subsidiary is not later than the Commitment Termination Date.
"Spot Rate" for a currency means the rate quoted (expressed as a decimal,
rounded to the fourth decimal place) to the Agent as the spot rate for the
purchase of such currency with another currency through the FX Trading Office at
approximately 10:00 a.m. (Chicago time) on the date two Business Days prior to
the date as of which the foreign exchange settlement is made.
"Standby Letter of Credit" means a Letter of Credit other than a Commercial
Letter of Credit.
"Subordinated Indebtedness" means unsecured indebtedness of the Company
which is subordinated in right of payment to the Obligations and which contains
terms and conditions which are acceptable to the Agent, the Required Lenders and
the Required Term Lenders in their reasonable discretion, (including terms and
conditions with respect to amounts, maturities, covenants, defaults, remedies
and subordination).
"Subsidiary" of a Person means any corporation, association, partnership,
limited liability company, joint venture or other business entity of which more
than 50% of the voting stock, membership interests or other equity interests (in
the case of Persons other than corporations) is owned or controlled directly or
indirectly by such Person, or one or more of the Subsidiaries of such Person, or
a combination thereof. Unless the context otherwise clearly requires, references
herein to a "Subsidiary" refer to a Subsidiary of the Company.
"Supermajority-Owned Subsidiary" means any Subsidiary of which more than
80% of the voting stock, membership interests or other equity interests is owned
directly or indirectly by the Company, or one or more of Supermajority-Owned
Subsidiaries of the Company, or any combination thereof.
"Surety Instruments" means all letters of credit (including standby and
commercial), banker's acceptances, bank guaranties, shipside bonds, surety bonds
and similar instruments.
"Swap Contract" means any agreement, whether or not in writing, relating to
any transaction that is a rate swap, basis swap, forward rate transaction,
commodity swap, commodity option, equity or equity index swap or option, bond,
note or bill option, interest rate option, forward foreign exchange transaction,
cap, collar or floor transaction,
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<PAGE> 124
currency swap, cross-currency rate swap, swaption, currency option or any other,
similar transaction (including any option to enter into any of the foregoing) or
any combination of the foregoing, and, unless the context otherwise clearly
requires, any master agreement relating to or governing any or all of the
foregoing.
"Swap Provider" means any Lender, or any Affiliate of any Lender, that is
at the time of determination party to a Swap Contract with the Company or any
Foreign Subsidiary.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a) the amount(s) determined as the
mark-to-market value(s) for such Swap Contracts, as determined by the Company
based upon one or more mid-market or other readily available quotations provided
by any recognized dealer in such Swap Contracts (which may include any Lender.)
"Swingline Commitment Amount" has the meaning specified in Section 2.15(a).
"Swingline Lender" means BofA.
"Swingline Loan" has the meaning specified in Section 2.15(a).
"Swingline Note" means a promissory note in substantially the
form of Exhibit F-2.
"Taxes" means any and all present or future taxes, levies, assessments,
imposts, duties, deductions, fees, withholdings or similar charges, and all
liabilities with respect thereto, excluding, in the case of each Lending Party
and the Agent, respectively, franchise taxes and taxes imposed on or measured by
its net income by the jurisdiction (or any political subdivision thereof) under
the laws of which such Lending Party or the Agent, as the case may be, is
organized or maintains a lending office.
"Temporary Cash Investments" means any investment (i) in direct obligations
issued by, or guaranteed by, the United States of America or any agency or
instrumentality thereof, provided that such obligations mature within 180 days
of the date of acquisition thereof, (ii) in time deposits or negotiable
certificates of deposit or money market securities issued by any bank or branch
having surplus of at least $500,000,000 in the aggregate at all times, payable
on demand or maturing within 180 days of the acquisition thereof; provided that
with respect to such time deposits, negotiable certificates of deposit and money
market securities, the Required Lenders and the Required Term Lenders shall have
at any time the right, upon notice to the Company, to reject any such bank as a
bank in which such Temporary Cash Investments may be made,
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<PAGE> 125
and (iii) investments in commercial paper rated P1 or A1 by Moody's Investors
Service, Inc. or Standard & Poor's Ratings Services, respectively, and maturing
not more than 180 days from the date of creation thereof.
"Term A Dollar Commitment" means, with respect to any Term A Lender, the
principal amount set forth opposite such Lender's name on Schedule 2.2 hereto or
in any Assignment and Assumption Agreement under the caption "Amount of Term A
Dollar Commitment", as such commitment may be adjusted from time to time
pursuant to this Agreement, and "Term A Dollar Commitments" means such
commitments collectively, which commitments equal $305,000,000 in the aggregate
as of the date hereof.
"Term A Dollar Facility" means the credit facility under this Agreement
evidenced by the Term A Dollar Commitments and the Term A Dollar Loans.
"Term A Dollar Lender" means any Lender which has a Term A Dollar
Commitment or is owed a Term A Dollar Loan (or a portion thereof).
"Term A Dollar Loan" and "Term A Dollar Loans" have the meanings assigned
to those terms in Section 2.1(b)(i).
"Term A Dollar Note" means a promissory note substantially in the form of
Exhibit F-3.
"Term A Dollar Pro Rata Share" means, when used with reference to any Term
A Dollar Lender and any described aggregate or total amount, an amount equal to
the result obtained by multiplying such described aggregate or total amount by a
fraction the numerator of which shall be such Term A Dollar Lender's then
outstanding Term A Dollar Loan and the denominator of which shall be all then
outstanding Term A Dollar Loans.
"Term A Euro Facility" means the credit facility under this Agreement
evidenced by the Term A Euro Loans, if any.
"Term A Euro Lender" means any Lender which is owed a Term A Euro Loan (or
a portion thereof).
"Term A Euro Loan" and "Term A Euro Loans" have the meanings assigned to
those terms in Section 2.1(b)(ii).
"Term A Euro Note" means a promissory note in substantially the form of
Exhibit F-4.
"Term A Euro Pro Rata Share" means, when used with reference to any Term A
Euro Lender and any described aggregate or total amount, an amount equal to the
result obtained by multiplying such described aggregate or total amount by a
fraction the
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<PAGE> 126
numerator of which shall be such Term A Euro Lender's then outstanding Term A
Euro Loan and the denominator of which shall be all then outstanding Term A Euro
Loans.
"Term A Loan Maturity Date" means June 30, 2004.
"Term A Loans" means the Term A Dollar Loans and the Term A Euro Loans.
"Term A Lenders" means the Term A Dollar Lenders and the Term A Euro
Lenders.
"Term Lender" means either a Term A Lender or the Italian Euro Term Lender,
as the context requires, and "Term Lenders" mean the Term A Lenders and the
Italian Term Lender.
"Term Loan" means either the Term A Loans or the Italian Euro Term Loan, as
the context requires and "Term Loans" means the Term A Loans and the Italian
Euro Term Loan.
"Term Note" means a Term A Euro Note, Term A Dollar Note or an Italian Term
Euro Note, as the context may require or allow.
"Termination Event" has the meaning specified in Section 8.1(e).
"Total Commitment Amount" means Seven Hundred Fifty Million Dollars
($750,000,000), as reduced from time to time pursuant to Section 2.5 or 2.7.
"Type" has the meaning specified in the definition of "Loan."
"UCC" means the Uniform Commercial Code as in effect in the State of New
York.
"Unfunded Pension Liability" means the excess of a Plan's benefit
liabilities under section 4001(a)(16) of ERISA, over the current value of that
Plan's assets, determined in accordance with the assumptions used for funding
the Pension Plan pursuant to section 412 of the Code for the applicable plan
year.
"United States" and "U.S." each means the United States of America.
"Valuation Date" means any date on which the Agent determines the Dollar
Equivalent of any Alternate Currency Loans or Alternate Currency Letter of
Credit Obligations pursuant to Section 2.17(f).
"Wholly-Owned Subsidiary" means any corporation in which (other than
directors' qualifying shares and/or other nominal amounts of shares that are
required to be held by Persons other than the Company (or its other Wholly-Owned
Subsidiaries, as
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<PAGE> 127
applicable) under Requirements of Law) 100% of the capital stock of each class
having ordinary voting power, and 100% of the capital stock of every other
class, in each case, at the time as of which any determination is being made, is
owned, beneficially and of record, by the Company, or by one or more of the
other Wholly-Owned Subsidiaries, or both.
"Year 2000 Problem" has the meaning specified in Section 4.1(j).
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<PAGE> 1
EXHIBIT 12.1
TOWER AUTOMOTIVE, INC.
STATEMENT OF COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
Year Ended December 31,
--------------------------------------------------------------
1995 1996 1997 1998 1999
---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C>
Earnings:
Income before income
taxes and extraordinary
item ....................... $ 20,121 $ 34,337 $ 80,741 $ 135,353 $ 187,166
Net fixed charges (1) ........ 2,501 8,551 44,385 52,217 47,918
---------- ---------- ---------- ---------- ----------
Total earnings ............... $ 22,622 $ 42,888 $ 125,126 $ 187,570 $ 235,084
========== ========== ========== ========== ==========
Fixed charges:
Interest expense ............. $ 2,027 $ 7,636 $ 36,651 $ 42,506 $ 39,491
Capitalized interest ......... 1,157 -- 3,409 3,732 6,926
Interest factor of rental
expense (2) ................ 311 660 6,255 7,352 5,986
Amortization of debt
expense .................... 163 255 1,479 2,359 2,441
Dividends on trust
preferred securities ....... -- -- -- 9,800 17,466
---------- ---------- ---------- ---------- ----------
Total fixed charges .......... $ 3,658 $ 8,551 $ 47,794 $ 65,749 $ 72,310
========== ========== ========== ========== ==========
Earnings to fixed charges .... 6.2 5.0 2.6 2.9 3.3
========== ========== ========== ========== ==========
</TABLE>
- -----------------------------
(1) Net fixed charges represents total fixed charges less capitalized
interest and dividends on trust preferred securities.
(2) The interest factor of rental expense has been calculated using the
rate implied pursuant to the terms of the rental agreements. For the
periods presented, the interest factor ranged from 30% to 55% of total
rental expense.
<PAGE> 1
EXHIBIT 21.1
LIST OF SUBSIDIARIES OF THE REGISTRANT
R.J. Tower Corporation (a Michigan corporation)
R.J. Tower Corporation (an Indiana corporation)
R.J. Tower Corporation (a Kentucky corporation)
Kalamazoo Stamping and Die Company (a Michigan corporation)
Trylon Corporation (a Michigan corporation)
Tower Automotive Delaware, Inc. (a Delaware corporation)
Tower Automotive Products Company, Inc. (a Delaware corporation)
Tower Automotive Export, Inc. (a Barbados, West Indies corporation)
Changchun Tower Golden Ring Automotive Products Company, Ltd.
(a China corporation)
Tower Automotive Canada, Inc. (a Canada corporation)
Tower Automotive do Brasil Ltda (a Brazil corporation)
Tower Automotive Mexico, S. de R.L. de C.V. (a Mexico corporation)
Tower do Brasil Ltda (a Brazil corporation)
Tower Italia, S.r.L. (an Italy corporation)
Tower Automotive, S.r.L. (an Italy corporation)
Tower Automotive Services and Technology, Inc. (a Delaware corporation)
Oslamt, S.p.A. (an Italy corporation)
Tower Automotive International, Inc. (a Delaware corporation)
Tower Automotive Capital Trust (a Delaware corporation)
Active Tool and Manufacturing, Inc. (a Michigan corporation)
Active Products Corporation (an Indiana corporation)
Tower Automotive International Holdings, Inc. (a Michigan corporation)
Tower Automotive International, B. V. (a Dutch corporation)
Tower Automotive Europe, B. V. (a Dutch corporation)
<PAGE> 2
Tower Automotive Sud, S.r.L. (an Italy corporation)
Tower Automotive Melfi, S.r.L. (an Italy corporation)
Tower Automotive India Private, Ltd. (an India corporation)
Tower Automotive Holding, GmbH (a Germany corporation)
Tower Automotive Verwaltung GmbH (a Germany corporation)
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation of our
report incorporated by reference in this Form 10-K, into the Company's
previously filed Registration Statement File Nos. 33-91578, 333-13589,
333-17355, 333-21943, 333-38827 and 333-39523.
ARTHUR ANDERSEN LLP
Minneapolis, Minnesota,
March 29, 2000
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This Schedule contains summary financial information extracted from (a) the
consolidated balance sheets and statement of operations found on pages F-2
through F-3 of Exhibit 99.1 of the Company's Form 10-K and is qualified in its
entirety by reference to such (b) financial statements.
</LEGEND>
<RESTATED>
<CIK> 0000925548
<NAME> TOWER AUTOMOTIVE, INC.
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> DEC-31-1999
<CASH> 3,617
<SECURITIES> 0
<RECEIVABLES> 353,351
<ALLOWANCES> 0
<INVENTORY> 110,897
<CURRENT-ASSETS> 558,056
<PP&E> 1,307,734
<DEPRECIATION> 231,873
<TOTAL-ASSETS> 2,552,550
<CURRENT-LIABILITIES> 431,116
<BONDS> 0
0
0
<COMMON> 469
<OTHER-SE> 726,666
<TOTAL-LIABILITY-AND-EQUITY> 2,552,550
<SALES> 2,170,003
<TOTAL-REVENUES> 2,170,003
<CGS> 1,823,103
<TOTAL-COSTS> 1,823,103
<OTHER-EXPENSES> 121,753
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 37,981
<INCOME-PRETAX> 187,166
<INCOME-TAX> 74,866
<INCOME-CONTINUING> 112,300
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 117,088
<EPS-BASIC> 2.50
<EPS-DILUTED> 2.10
</TABLE>
<PAGE> 1
EXHIBIT 99.1
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To Tower Automotive, Inc.:
We have audited the accompanying consolidated balance sheets of Tower
Automotive, Inc. (a Delaware corporation) and Subsidiaries as of December 31,
1999 and 1998, and the related consolidated statements of operations,
stockholders' investment and cash flows for each of the three years in the
period ended December 31, 1999. These financial statements are the
responsibility of the Company's management. Our responsibility is to express an
opinion on these financial statements based on our audits.
We conducted our audits in accordance with auditing standards generally
accepted in the United States. Those standards require that we plan and perform
the audit to obtain reasonable assurance about whether the financial statements
are free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements. An
audit also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the financial position of Tower Automotive, Inc. and
Subsidiaries as of December 31, 1999 and 1998, and the results of their
operations and their cash flows for each of the three years in the period ended
December 31, 1999 in conformity with accounting principles generally accepted in
the United States.
ARTHUR ANDERSEN LLP
Minneapolis, Minnesota,
January 25, 2000
F-1
<PAGE> 2
TOWER AUTOMOTIVE, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(AMOUNTS IN THOUSANDS, EXCEPT SHARE AMOUNTS)
<TABLE>
<CAPTION>
DECEMBER 31,
-----------------------
1999 1998
---------- ----------
<S> <C> <C>
ASSETS
Current Assets:
Cash and cash equivalents................................. $ 3,617 $ 3,434
Accounts receivable....................................... 353,351 239,888
Inventories............................................... 110,897 76,913
Prepaid tooling and other................................. 90,191 115,859
---------- ----------
Total current assets.............................. 558,056 436,094
---------- ----------
Property, Plant and Equipment, net.......................... 1,075,861 821,873
Restricted Cash............................................. -- 2,677
Investments in Joint Ventures............................... 290,705 209,625
Goodwill, net of accumulated amortization of $33,079 and
$20,308................................................... 585,109 421,700
Other Assets, net of accumulated amortization of $10,155 and
$7,123.................................................... 42,819 44,198
---------- ----------
$2,552,550 $1,936,167
========== ==========
LIABILITIES AND STOCKHOLDERS' INVESTMENT
Current Liabilities:
Current maturities of long-term debt and capital lease
obligations............................................ $ 13,876 $ 18,191
Accounts payable.......................................... 276,673 214,194
Accrued liabilities....................................... 140,567 96,773
---------- ----------
Total current liabilities......................... 431,116 329,158
---------- ----------
Long-Term Debt, net of current maturities................... 699,678 316,579
Obligations Under Capital Leases, net of current
maturities................................................ 21,543 25,770
Convertible Subordinated Notes.............................. 200,000 200,000
Deferred Income Taxes....................................... 50,736 20,376
Other Noncurrent Liabilities................................ 163,592 178,738
---------- ----------
Total noncurrent liabilities...................... 1,135,549 741,463
---------- ----------
Commitments and Contingencies (Notes 3, 5 and 10)
Mandatorily Redeemable Trust Convertible Preferred
Securities................................................ 258,750 258,750
Stockholders' Investment:
Preferred stock, par value $1; 5,000,000 shares
authorized; no shares issued or outstanding............ -- --
Common stock, par value $.01; 200,000,000 shares
authorized; 46,879,454 and 46,281,880 shares issued and
outstanding............................................ 469 463
Additional paid-in capital................................ 437,210 426,471
Retained earnings......................................... 294,522 177,434
Warrants to acquire common stock.......................... 2,000 2,000
Deferred Income Stock Plan................................ (4,484) --
Accumulated other comprehensive income -- cumulative
translation adjustment................................. (2,582) 428
---------- ----------
Total stockholders' investment.................... 727,135 606,796
---------- ----------
$2,552,550 $1,936,167
========== ==========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-2
<PAGE> 3
TOWER AUTOMOTIVE, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(AMOUNTS IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
--------------------------------------
1999 1998 1997
---------- ---------- ----------
<S> <C> <C> <C>
Revenues............................................... $2,170,003 $1,836,479 $1,235,829
Cost of sales.......................................... 1,823,103 1,562,167 1,058,720
---------- ---------- ----------
Gross profit......................................... 346,900 274,312 177,109
Selling, general and administrative expenses........... 105,950 85,169 57,869
Amortization expense................................... 15,803 13,472 9,537
---------- ---------- ----------
Operating income..................................... 225,147 175,671 109,703
Interest expense....................................... 39,491 42,506 36,651
Interest income........................................ (1,510) (2,188) (7,689)
---------- ---------- ----------
Income before provision for income taxes, equity in
earnings of joint ventures and minority
interest.......................................... 187,166 135,353 80,741
Provision for income taxes............................. 74,866 54,143 32,290
---------- ---------- ----------
Income before equity in earnings of joint ventures
and minority interest............................. 112,300 81,210 48,451
Equity in earnings of joint ventures................... 15,268 12,708 227
Minority interest -- dividends on trust preferred
securities, net...................................... (10,480) (5,878) --
---------- ---------- ----------
Income before extraordinary item..................... 117,088 88,040 48,678
Extraordinary loss on early extinguishment of debt,
net.................................................. -- -- 2,434
---------- ---------- ----------
Net income........................................... $ 117,088 $ 88,040 $ 46,244
========== ========== ==========
Basic earnings per share (Note 3):
Income before extraordinary loss..................... $ 2.50 $ 1.91 $ 1.20
Extraordinary loss................................... -- -- (.06)
---------- ---------- ----------
Net income................................... $ 2.50 $ 1.91 $ 1.14
========== ========== ==========
Diluted earnings per share (Note 3):
Income before extraordinary loss..................... $ 2.10 $ 1.68 $ 1.14
Extraordinary loss................................... -- -- (.05)
---------- ---------- ----------
Net income................................... $ 2.10 $ 1.68 $ 1.09
========== ========== ==========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-3
<PAGE> 4
TOWER AUTOMOTIVE, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' INVESTMENT
(AMOUNTS IN THOUSANDS, EXCEPT SHARE AMOUNTS)
<TABLE>
<CAPTION>
WARRANTS TO DEFERRED ACCUMULATED
COMMON STOCK ADDITIONAL ACQUIRE INCOME OTHER TOTAL
------------------- PAID-IN RETAINED COMMON STOCK COMPREHENSIVE STOCKHOLDERS'
SHARES AMOUNT CAPITAL EARNINGS STOCK PLAN INCOME INVESTMENT
---------- ------ ---------- -------- ----------- -------- ------------- -------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
BALANCE, DECEMBER 31,
1996..................... 28,567,586 $286 $136,441 $ 43,150 $2,000 $ -- $ -- $181,877
Conversion of Edgewood
notes.................... 225,502 2 682 -- -- -- -- 684
Exercise of options........ 52,600 1 234 -- -- -- -- 235
Sales of stock under
Employee Stock Discount
Purchase Plan............ 129,802 1 1,575 -- -- -- -- 1,576
Collection of common stock
subscriptions
receivable............... -- -- 78 -- -- -- -- 78
Public offering of common
stock, net............... 17,000,000 170 284,393 -- -- -- -- 284,563
Net income................. -- -- -- 46,244 -- -- --
Other comprehensive
income -- foreign
currency translation
adjustment............... -- -- -- -- -- -- 22
Total comprehensive
income................... 46,266
---------- ---- -------- -------- ------ ------- ------- --------
BALANCE, DECEMBER 31,
1997..................... 45,975,490 460 423,403 89,394 2,000 -- 22 515,279
Conversion of Edgewood
notes.................... 62,000 1 188 -- -- -- -- 189
Exercise of options........ 112,300 1 467 -- -- -- -- 468
Sales of stock under
Employee Stock Discount
Purchase Plan............ 132,090 1 2,344 -- -- -- -- 2,345
Collection of common stock
subscriptions
receivable............... -- -- 69 -- -- -- -- 69
Net income................. -- -- -- 88,040 -- -- --
Other comprehensive
income -- foreign........ -- -- --
currency translation
adjustment............. -- -- -- -- -- -- 406
Total comprehensive
income................... 88,446
---------- ---- -------- -------- ------ ------- ------- --------
BALANCE, DECEMBER 31,
1998..................... 46,281,880 463 426,471 177,434 2,000 -- 428 606,796
Conversion of Edgewood
notes.................... 250,000 3 755 -- -- -- -- 758
Exercise of options........ 125,000 1 996 -- -- -- -- 997
Sales of stock under
Employee Stock Discount
Purchase Plan............ 222,574 2 3,579 -- -- -- -- 3,581
Deferred Income Stock
Plan..................... -- -- 4,484 -- -- (4,484) -- --
Non-employee options
grant.................... -- -- 897 -- -- -- -- 897
Collection of common stock
subscriptions
receivable............... -- -- 28 -- -- -- -- 28
Net income................. -- -- -- 117,088 -- -- --
Other comprehensive
income -- foreign
currency translation
adjustment............... -- -- -- -- -- -- (3,010)
Total comprehensive
income................... 114,078
---------- ---- -------- -------- ------ ------- ------- --------
BALANCE, DECEMBER 31,
1999..................... 46,879,454 $469 $437,210 $294,522 $2,000 $(4,484) $(2,582) $727,135
========== ==== ======== ======== ====== ======= ======= ========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-4
<PAGE> 5
TOWER AUTOMOTIVE, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(AMOUNTS IN THOUSANDS)
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
---------------------------------------
1999 1998 1997
----------- ----------- -----------
<S> <C> <C> <C>
OPERATING ACTIVITIES:
Net income............................................. $ 117,088 $ 88,040 $ 46,244
Adjustments required to reconcile net income to net
cash provided by operating activities-
Depreciation and amortization....................... 111,611 87,372 47,966
Deferred income tax provision....................... 45,528 37,847 24,980
Extraordinary loss on extinguishment of debt........ -- -- 2,434
Change in other operating items:
Accounts receivable............................... (73,903) (5,808) (32,620)
Inventories....................................... (9,340) (728) 13,052
Prepaid tooling and other......................... 52,270 (36,509) (8,122)
Accounts payable and accrued liabilities.......... 40,491 71,017 31,765
Other assets and liabilities...................... (56,474) (20,133) (24,795)
----------- ----------- -----------
Net cash provided by operating activities...... 227,271 221,098 100,904
----------- ----------- -----------
INVESTING ACTIVITIES:
Capital expenditures, net.............................. (197,315) (185,138) (117,379)
Acquisitions, net of cash acquired..................... (320,662) (61,939) (765,063)
Acquisition of joint venture interests and other....... (83,862) (62,437) (127,438)
Net proceeds from sale of Hinge Business............... -- 36,888 --
Change in restricted cash.............................. 2,677 5,225 2,931
----------- ----------- -----------
Net cash used for investing activities......... (599,162) (267,401) (1,006,949)
----------- ----------- -----------
FINANCING ACTIVITIES:
Proceeds from borrowings............................... 2,208,667 1,245,165 1,122,044
Repayments of debt..................................... (1,841,229) (1,448,430) (733,191)
Net proceeds from issuance of common stock............. 4,636 2,883 285,457
Net proceeds from issuance of convertible debt......... -- -- 194,892
Net proceeds from issuance of preferred securities..... -- 249,713 --
Cash portion of extraordinary loss on extinguishment of
debt................................................ -- -- (3,010)
Other, net............................................. -- 406 257
----------- ----------- -----------
Net cash provided by financing activities...... 372,074 49,737 866,449
----------- ----------- -----------
NET CHANGE IN CASH AND CASH EQUIVALENTS.................. 183 3,434 (39,596)
CASH AND CASH EQUIVALENTS, beginning of period........... 3,434 -- 39,596
----------- ----------- -----------
CASH AND CASH EQUIVALENTS, end of period................. $ 3,617 $ 3,434 $ --
=========== =========== ===========
SUPPLEMENTAL CASH FLOW INFORMATION:
Cash paid for --
Interest, net of amounts capitalized................ $ 36,023 $ 41,390 $ 25,394
=========== =========== ===========
Income taxes........................................ $ 17,136 $ 4,420 $ 10,661
=========== =========== ===========
NON CASH FINANCING ACTIVITIES:
Notes payable converted to common stock................ $ 755 $ 188 $ 682
=========== =========== ===========
Non-employee options grant............................. $ 897 $ -- $ --
=========== =========== ===========
Deferred Income Stock Plan............................. $ 4,484 $ -- $ --
=========== =========== ===========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-5
<PAGE> 6
TOWER AUTOMOTIVE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. ORGANIZATION AND BASIS OF PRESENTATION
Tower Automotive, Inc. and subsidiaries (the "Company") produces a broad
range of assemblies and modules for vehicle body structures and suspension
systems for the global automotive industry. The Company has facilities in the
United States, Canada, Italy and Japan, in China through its joint venture
investment in China (see Note 2), in Brazil through its joint venture investment
in Caterina (see Note 5), in Mexico through its joint venture investment in
Metalsa (see Note 5), and in Korea through its joint venture investment in
Seojin (see Note 5).
2. SIGNIFICANT ACCOUNTING POLICIES
Principles of Consolidation
The accompanying consolidated financial statements include the accounts of
Tower Automotive, Inc. and its wholly-owned subsidiaries. All material
intercompany accounts and transactions have been eliminated in consolidation.
As part of the acquisition of Automotive Products Company ("APC") (see Note
5), the Company acquired a 60 percent joint venture interest to produce certain
parts in China. This investment is accounted for using the equity method since
all significant business decisions require the approval of 80 percent of the
joint venture partners. The remaining 40 percent of the joint venture is owned
by unrelated third parties. The Company's investments in Metalsa, Caterina, and
Seojin are also accounted for using the equity method.
Cash and Cash Equivalents
Cash and cash equivalents consist of highly liquid investments with an
original maturity of three months or less. Cash equivalents are stated at cost
which approximates fair value.
Inventories
Inventories are valued at the lower of first-in, first-out ("FIFO") cost or
market.
Inventories consisted of the following (in thousands):
<TABLE>
<CAPTION>
DECEMBER 31,
------------------
1999 1998
-------- -------
<S> <C> <C>
Raw materials............................................... $ 47,231 $26,787
Work-in-process............................................. 34,143 27,734
Finished goods.............................................. 29,523 22,392
-------- -------
$110,897 $76,913
======== =======
</TABLE>
Customer Tooling and Other Design Costs
Customer tooling represents costs incurred by the Company in the
development of new tooling used in the manufacture of the Company's products.
Once customer approval is obtained for the manufacture of a new product, the
Company is reimbursed by its customers for the cost of certain of the tooling,
at which time the tooling becomes the property of the customers.
In addition, the Company has certain other tooling and design costs related
to previously proven product designs which are reimbursed by the Company's
customers as the related product is sold through an incremental increase in each
product's unit selling price. Such costs are capitalized and amortized using the
unit of production method over the life of the related product. Amounts
capitalized and included in other assets were $8.7 million at December 31, 1999
and $5.6 million at December 31, 1998. If the Company
F-6
<PAGE> 7
TOWER AUTOMOTIVE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
forecasts that the amount of capitalized tooling and design costs exceeds the
amount to be realized through the sale of product, a loss is recognized
currently.
Property, Plant and Equipment
Property, plant and equipment consisted of the following (in thousands):
<TABLE>
<CAPTION>
DECEMBER 31,
----------------------
1999 1998
---------- ---------
<S> <C> <C>
Land........................................................ $ 6,932 $ 5,872
Buildings and improvements.................................. 212,508 144,797
Machinery and equipment..................................... 927,335 656,189
Construction in progress.................................... 160,959 151,080
---------- ---------
1,307,734 957,938
Less-Accumulated depreciation............................... (231,873) (136,065)
---------- ---------
Net property, plant and equipment........................... $1,075,861 $ 821,873
========== =========
</TABLE>
Property, plant and equipment acquired in the acquisitions discussed in
Note 5 was recorded at its fair value, determined based on appraisals, as of the
respective acquisition dates. Additions to property, plant and equipment
following the acquisitions are stated at cost. For financial reporting purposes,
depreciation and amortization are provided using the straight-line method over
the following estimated useful lives:
<TABLE>
<S> <C>
Buildings and improvements........................... 15 to 40 years
Machinery and equipment.............................. 3 to 20 years
</TABLE>
Accelerated depreciation methods are used for tax reporting purposes.
Interest is capitalized during the construction of major facilities and is
amortized over their estimated useful lives. Interest of $6.9 million was
capitalized during the year ended December 31, 1999, $3.7 million was
capitalized during the year ended December 31, 1998, and $3.4 million during the
year ended December 31, 1997.
Maintenance and repairs are charged to expense as incurred. Major
betterments and improvements which extend the useful life of the related item
are capitalized and depreciated. The cost and accumulated depreciation of
property, plant and equipment retired or otherwise disposed of are removed from
the related accounts, and any residual values after considering proceeds are
charged or credited to income.
Other Assets
Goodwill represents the excess of the purchase price over the fair value of
the net assets acquired and is being amortized on a straight-line basis over 40
years. Debt issue costs are amortized on a straight-line basis over the term of
the related obligations.
The Company periodically evaluates whether events and circumstances have
occurred which may affect the estimated useful life or the recoverability of the
remaining balance of its goodwill and other long-lived assets. If such events or
circumstances were to indicate that the carrying amount of these assets were not
recoverable, the Company would estimate the future cash flows expected to result
from the use of the assets and their eventual disposition. If the sum of the
expected future cash flows (undiscounted and without interest charges) were less
than the carrying amount of goodwill, the Company would recognize an impairment
loss.
F-7
<PAGE> 8
TOWER AUTOMOTIVE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Fair Value of Financial Instruments
The carrying amount of cash and cash equivalents, accounts receivable,
accounts payable and revolving credit facilities approximates fair value because
of the short maturity of these instruments. The carrying amount of the Company's
long-term debt approximates fair value because of the variability of the
interest cost associated with these instruments. The fair value of the Company's
Convertible Subordinate Notes and Preferred Securities, based on Portal market
quote activity as of year end, approximated carrying value.
During 1997, the Company entered into interest rate swap contracts to hedge
against interest rate exposures on certain floating-rate indebtedness. These
contracts, which were to expire in November 2002, had the effect of converting
the floating-rate interest related to a notional amount of $300 million of
borrowings outstanding under the revolving credit facility into a fixed-rate of
approximately 6.75 percent. The interest rate swap contract was executed to
balance the Company's fixed-rate and floating-rate debt portfolios. During June
of 1999, the Company terminated its position in the interest rate swap contracts
resulting in a gain of $0.5 million.
During the fourth quarter of 1997, the Company entered into an interest
rate contract in a notional amount of $75 million in anticipation of financing
that did not materialize. Accordingly, the Company adjusted the interest rate
contract to market as of December 31, 1998 and 1997. The write-down to fair
value of approximately $6.4 million and $2.0 million, respectively, was recorded
as expense in the accompanying consolidated statements of operations. During the
first quarter of 1999, the Company settled the $75 million contract with a cash
payment of approximately $7.0 million.
Revenue Recognition and Sales Commitments
The Company recognizes revenue as its products are shipped to its
customers. The Company enters into agreements to produce products for its
customers at the beginning of a given vehicle's life. Once such agreements are
entered into by the Company, fulfillment of the customers' purchasing
requirements is the obligation of the Company for the entire production life of
the vehicle, with terms of three to ten years and the Company has no provisions
to terminate such contracts. In certain instances, the Company may be committed
under existing agreements to supply product to its customers at selling prices
which are not sufficient to cover the direct cost to produce such product. In
such situations, the Company records a liability for the estimated future amount
of such losses. Such losses are recognized at the time that the loss is probable
and reasonably estimable and is recorded at the minimum amount necessary to
fulfill the Company's obligations to it customers. Losses are discounted at 4
percent and are estimated based upon information available at the time of the
estimate, including future production volume estimates, length of the program
and selling price and production cost information.
Income Taxes
The Company recognizes deferred tax assets and liabilities for the expected
future tax consequences of events that have been included in the financial
statements or tax returns. Deferred tax assets and liabilities are determined
based on the difference between the financial statement and tax bases of assets
and liabilities using currently enacted tax rates.
Comprehensive Income
Effective January 1, 1998, the Company adopted the provisions of SFAS No.
130, "Reporting Comprehensive Income," which established standards for reporting
and display of comprehensive income and its components. Comprehensive income
reflects the change in equity of a business enterprise during a period from
transactions and other events and circumstances from non-owner sources. For the
Company, comprehensive income represents net income adjusted for foreign
currency translation adjustments. The Company has
F-8
<PAGE> 9
TOWER AUTOMOTIVE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
chosen to disclose comprehensive income in the consolidated statements of
stockholders' investment and prior years have been restated.
Segment Reporting
During 1998, the Company adopted SFAS No. 131, "Disclosure About Segments
of an Enterprise and Related Information." SFAS No. 131 supersedes SFAS No. 14
replacing the "industry segment" approach with the "management" approach. The
management approach designates the internal organization that is used by
management for making operating decisions and assessing performance as the
source of the Company's reportable segments. SFAS No. 131 also requires
disclosures about products and services, geographic areas, and major customers.
The adoption of SFAS No. 131 did not affect results of operations or financial
position but did affect the disclosure of segment information (see Note 8).
Stock Options
The Company accounts for stock options under the provisions of Accounting
Principles Board opinion ("APB") No. 25, under which no compensation expense is
recognized when the stock options are granted to employees. The pro forma
effects had the Company followed the provisions of SFAS No. 123 are included in
Note 3. The Company may also grant stock options to outside consultants and
directors. The fair value of these option grants are expensed as of the grant
date based on the Black-Scholes valuation model.
Use of Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. The actual results could differ from those estimates.
Foreign Currency Translation
Assets and liabilities of the Company's foreign operations are translated
into U.S. dollars using the year-end rates of exchange. Results of operations
are translated at average rates prevailing throughout the period. Translation
gains or losses are accumulated as a separate component of accumulated other
comprehensive income in the accompanying consolidated statements of
stockholders' investment.
Recently Issued Accounting Pronouncements
SFAS No. 133, "Accounting for Derivative Instruments and Hedging
Activities," as amended by SFAS No. 137, becomes effective for the years
beginning after June 15, 2000. SFAS No. 133 establishes accounting and reporting
standards requiring that every derivative instrument, including certain
derivative instruments embedded in other contracts, be recorded in the balance
sheet as either an asset or liability measured at its fair value. SFAS No. 133
requires that changes in the derivative's fair value be recognized currently in
earnings unless specific hedge criteria are met. Special accounting for
qualifying hedges allows a derivative's gains or losses to offset related
results on the hedged item in the income statement and requires that a company
must formally document, designate and assess the effectiveness of transactions
that receive hedge accounting. The Company has not yet quantified the impact of
adopting SFAS No. 133 and 137, and has not yet determined the timing of
adoption.
In April 1998, the Financial Accounting Standards Board issued Statement of
Position (SOP) No. 98-5, "Reporting on the Costs of Start-Up Activities." SOP
98-5 requires the expensing of start-up activities as incurred, versus
capitalizing and expensing them over a period of time. The Company's adoption of
SOP 98-5
F-9
<PAGE> 10
TOWER AUTOMOTIVE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
during the first quarter of 1999 did not materially affect the consolidated
results of operations or the financial position of the Company.
3. STOCKHOLDERS' INVESTMENT
Stock Split
On May 19, 1998, the Company's Board of Directors approved a two-for-one
stock split, which was effected as a stock dividend. On July 15, 1998,
stockholders were issued one additional share of common stock for each share of
common stock held on the record date of June 30, 1998. All references to the
number of common shares and per share amounts have been adjusted to reflect the
stock split on a retroactive basis.
Public Offerings of Common Stock
During 1997, the Company issued 17,000,000 shares of Common Stock in a
public offering at an offering price of $17.50 per share (the "Offering"). Net
proceeds to the Company, after underwriting discounts and offering expenses,
were approximately $285 million. Proceeds from the Offering were used by the
Company to partially fund the acquisition of APC.
Earnings Per Share
Basic earnings per share were computed by dividing net income by the
weighted average number of common shares outstanding during the year. Diluted
earnings per share were determined on the assumptions: (i) the Edgewood notes
were converted at the beginning of the respective periods, (ii) the Convertible
Subordinated Notes were converted upon issuance on July 29, 1997, (iii) the
Preferred Securities (as defined in Note 4) were converted upon issuance on June
9, 1998, and (iv) the Deferred Income Stock Plan (see below) share purchase were
issued on March 31, 1999 (in thousands, except per share data):
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
-----------------------------
1999 1998 1997
-------- -------- -------
<S> <C> <C> <C>
Net income............................................... $117,088 $ 88,040 $46,244
Interest expense on Edgewood notes, net of tax........... 33 60 104
Interest expense on Convertible Subordinated Notes, net
of tax................................................. 6,508 6,508 2,834
Dividends on Preferred Securities, net of tax............ 10,480 5,878 --
-------- -------- -------
Net income applicable to common stockholders --diluted... $134,109 $100,486 $49,182
======== ======== =======
Weighted average number of common shares outstanding..... 46,751 46,204 40,720
Dilutive effect of outstanding stock options and warrants
after application of the treasury stock method......... 560 504 498
Dilutive effect of Edgewood notes, assuming conversion... 326 547 764
Dilutive effect of Deferred Income Stock Plan, assuming
conversion............................................. 183 -- --
Dilutive effect of Convertible Subordinated Notes,
assuming conversion.................................... 7,729 7,729 3,220
Dilutive effect of Preferred Securities, assuming
conversion............................................. 8,425 4,727 --
-------- -------- -------
Diluted shares outstanding............................... 63,974 59,711 45,202
======== ======== =======
Basic earnings per share................................. $ 2.50 $ 1.91 $ 1.14
======== ======== =======
Diluted earnings per share............................... $ 2.10 $ 1.68 $ 1.09
======== ======== =======
</TABLE>
F-10
<PAGE> 11
TOWER AUTOMOTIVE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Stock Option Plan
The Company sponsors the 1994 Key Employee Stock Option Plan (the "Stock
Option Plan"), under which any person who is a full-time, salaried employee of
the Company (excluding non-management directors) is eligible to participate in
the Stock Option Plan (an "Employee Participant"). A committee of the board of
directors selects the Employee Participants and determines the terms and
conditions of the options. The Stock Option Plan provides for the issuance of
options up to 3,000,000 shares of Common Stock at exercise prices equal to the
stock market price on the date of grant to Employee Participants, subject to
certain adjustments reflecting changes in the Company's capitalization.
Information regarding the Stock Option Plan is as follows:
<TABLE>
<CAPTION>
WEIGHTED
WEIGHTED AVERAGE FAIR
SHARES AVERAGE VALUE OF EXERCISABLE
UNDER EXERCISE EXERCISE OPTIONS AT END OF
OPTION PRICE PRICE GRANTED YEAR
--------- ----------- -------- ------------ -----------
<S> <C> <C> <C> <C> <C>
Outstanding, Dec. 31, 1996... 496,500 $ 4.00-7.56 $ 6.02 $ 4.76 55,250
Granted.................... 382,500 18.94 18.94
Granted.................... 8,000 20.50 20.50
Exercised.................. (52,600) 4.00-7.56 5.10
Forfeited.................. (30,250) 4.00-18.94 8.56
--------- ----------- ------
Outstanding, Dec. 31, 1997... 804,150 4.00-20.50 12.19 13.35 138,650
Granted.................... 666,000 22.97 22.97
Granted.................... 8,000 22.88 22.88
Granted.................... 20,000 25.75 25.75
Granted.................... 491,000 17.123 17.13
Exercised.................. (112,300) 4.00-18.94 5.96
Forfeited.................. (23,500) 4.00-22.97 18.93
--------- ----------- ------
Outstanding, Dec. 31, 1998... 1,853,350 4.00-25.75 17.89 10.43 252,100
Granted.................... 795,500 19.25 19.25
Exercised.................. (125,000) 4.00-18.94 8.54
Forfeited.................. (81,000) 7.56-22.97 20.05
--------- ----------- ------
Outstanding, Dec. 31, 1999... 2,442,850 $4.00-25.75 $13.07 $ 9.51 552,475
========= =========== ======
</TABLE>
The weighted average exercise price of options exercisable at end of year
was $16.48 at December 31, 1999, $11.27 at December 31, 1998 and $5.48 at
December 31, 1997.
All options granted in the stock option plan have a contractural life of 10
years from the date of grant.
In March 1999, the Company's board of directors adopted and shareholders
approved the Tower Automotive Inc. Long Term Incentive Plan ("Incentive Plan").
The Incentive Plan is designed to promote the long term success of the Company
through stock based compensation by aligning the interests of participants with
those of its stockholders. Eligible participants under the Incentive Plan
include key company colleagues, directors, and outside consultants. Awards under
the Incentive Plan may include stock options, stock appreciation rights,
performance shares, and other stock based awards. The Incentive Plan provides
for the issuance of up to 3,000,000 shares of common stock. A committee of the
board of directors is responsible
F-11
<PAGE> 12
TOWER AUTOMOTIVE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
for administration, participant selection, and determination of terms and
conditions of the Incentive Plant. Information regarding of terms and conditions
of the Incentive Plan is as follows:
<TABLE>
<CAPTION>
WEIGHTED
WEIGHTED AVERAGE FAIR
SHARES AVERAGE VALUE OF EXERCISABLE
UNDER EXERCISE OPTIONS AT END OF
OPTION EXERCISE PRICE PRICE GRANTED YEAR
------- -------------- -------- ------------ -----------
<S> <C> <C> <C> <C> <C>
Granted.................. 405,000 $ 19.25 $19.25
Granted.................. 121,490 26.81 26.81
------- ------------ ------
Outstanding at Dec. 31,
1999................... 526,490 $19.25-26.81 $20.99 $9.08 --
======= ============ ======
</TABLE>
Options granted in 1999 have a remaining contractual life of 5 to 10 years.
No options issued under the Incentive Plan were exercisable as of December 31,
1999.
Independent Director Stock Option Plan:
In February 1996, the Company's board of directors approved the Tower
Automotive, Inc. Independent Director Stock Option Plan (the "Director Option
Plan") that provides for the issuance of options to Independent Directors, as
defined, to acquire up to 200,000 shares of the Company's Common Stock, subject
to certain adjustments reflecting changes in the Company's capitalization. The
option exercise price must be at least equal to the fair value of the Common
Stock at the time the option is issued. Vesting is determined by the board of
directors at the date of grant and in no event can be less than six months from
the date of grant. Information regarding the Director Option Plan is as follows:
<TABLE>
<CAPTION>
WEIGHTED WEIGHTED
SHARES AVERAGE AVERAGE FAIR EXERCISABLE
UNDER EXERCISE EXERCISE VALUE OF AT END OF
OPTION PRICE PRICE OPTIONS GRANTED YEAR
------- ----------- -------- --------------- -----------
<S> <C> <C> <C> <C> <C>
Outstanding, Dec. 31,
1996.................. 45,000 $ 7.56 $ 7.56 $4.26 --
Granted............... 60,000 18.94 18.94
------- ----------- ------
Outstanding, Dec. 31,
1997.................. 105,000 7.56-18.94 14.06 7.77 15,000
Granted............... 18,000 22.97 22.97
------- ----------- ------
Outstanding, Dec. 31,
1998.................. 123,000 7.56-22.97 15.37 8.38 49,800
Granted............... 40,000 19.25 19.25
------- ----------- ------
Outstanding, Dec. 31,
1999.................. 163,000 $7.56-22.97 $16.32 $8.70 90,600
======= =========== ======
</TABLE>
The weighted average exercise price of options exercisable under the
Director Option Plan was $13.56 at December 31, 1999, $12.09 at December 31,
1998 and $7.56 at December 31, 1997.
Employee Stock Purchase Plan
The Company also sponsors an employee stock discount purchase plan which
provides for the sale of up to 1,000,000 shares of the Company's Common Stock at
discounted purchase prices, subject to certain limitations. The cost per share
under this plan is 85 percent of the market value of the Company's Common Stock
at the date of purchase, as defined. During the year ended December 31, 1999,
222,574 shares of Common Stock were issued to employees pursuant to this plan,
132,090 shares of Common Stock were issued during the year ended December 31,
1998, and 129,802 shares of Common Stock were issued during the year ended
December 31, 1997. The weighted average fair value of shares sold in 1999, 1998
and 1997 were $16.09, $17.76, and $12.10, respectively.
F-12
<PAGE> 13
TOWER AUTOMOTIVE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Deferred Income Stock Plan
During 1999, the Company established the Tower Automotive, Inc. Key
Leadership Deferred Income Stock Purchase Plan (the "Deferred Income Stock
Plan"), which allows certain colleagues to defer receipt of all or a portion of
their annual cash bonus. The Company makes a matching contribution of one-third
of the colleague's deferral. The Company matching contribution vests on the
first day of the third plan year following the date of the colleague's deferral.
In accordance with the terms of the plan, the colleague's deferral and Company's
matching contribution have been placed in a "Rabbi" trust, which invests solely
in the Company's Common Stock. This trust arrangement offers the colleague a
degree of assurance for ultimate payment of benefits without causing
constructive receipt for income tax purposes. Distributions to the colleague
from the trust can only be made in the form of the Company's Common Stock. The
assets in the trust remain subject to the claims of creditors of the Company and
are not the property of the colleague; therefore, they are included as a
separate component of stockholders' investment under the caption Deferred Income
Stock Plan.
Stock-Based Compensation Plans
As discussed above, the Company has three stock option plans: the Stock
Option Plan, the Long Term Incentive Plan and the Independent Director Stock
Option Plan. Additionally the Company has two stock purchase plans: the Employee
Stock Purchase Plan and the Deferred Income Stock Plan. The Company has elected
to continue to account for these plans under APB No. 25, under which no
compensation cost has been recognized for employee groups eligible for the
plans. Had compensation cost for these plans been determined as required under
SFAS No. 123, "Accounting for Stock-Based Compensation," the Company's pro forma
net income and pro forma earnings per share would have been as follows (in
thousands):
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
----------------------------
1999 1998 1997
-------- ------- -------
<S> <C> <C> <C>
Net income
As Reported.......................................... $117,088 $88,040 $46,244
Pro Forma............................................ 109,003 86,787 45,722
Basic earnings per share
As Reported.......................................... $ 2.50 $ 1.91 $ 1.14
Pro Forma............................................ 2.33 1.88 1.12
Diluted earnings per share
As Reported.......................................... $ 2.10 $ 1.68 $ 1.09
Pro Forma............................................ 1.97 1.66 1.08
</TABLE>
The effect of the stock issued under the Employee Stock Purchase Plan was
not material for 1999, 1998 and 1997.
The fair value of each option grant is estimated on the date of the grant
using the Black-Scholes option pricing model with the following weighted average
assumptions: Risk free interest rates of 4.54 percent in 1999, 4.81 percent to
5.75 percent in 1998, and 6.39 percent in 1997; expected life of seven years for
1999, 1998 and 1997; expected volatility of 40 percent in 1999, 37 percent to 40
percent in 1998, and 67 percent in 1997; expected dividends of zero.
Other Common Stock Equivalents
In connection with the acquisition of Edgewood Tool and Manufacturing
Company ("Edgewood") in May 1994, the Company issued options to acquire 205,968
shares of Common Stock at an exercise price of $3.28 per share. These options
are fully exercisable through 2004. As of December 31, 1999, all of these
options were exercisable.
F-13
<PAGE> 14
TOWER AUTOMOTIVE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
In connection with the acquisition of MSTI in May 1996, the Company issued
warrants to MascoTech to acquire 400,000 shares of Common Stock at an exercise
price of $9 per share. The warrants expire in 2006.
In addition, the Company has Convertible Subordinated Notes outstanding as
discussed in Note 6, and Convertible Preferred Securities as discussed in Note
4.
Dividends
The Company has not declared or paid any cash dividends in the past. As
discussed in Note 6, the Company's debt agreements restrict the amount of
dividends the Company can declare or pay. As of December 31, 1999, under the
most restrictive debt covenants, the Company could not have paid any cash
dividends.
4. MANDATORILY REDEEMABLE TRUST CONVERTIBLE PREFERRED SECURITIES
On June 9, 1998, Tower Automotive Capital Trust (the "Issuer"), a wholly
owned statutory business trust of the Company, completed the offering of $258.8
million of its 6 3/4 percent Trust Convertible Preferred Securities ("Preferred
Securities"), resulting in net proceeds of approximately $249.7 million. The
Preferred Securities are redeemable, in whole or in part, on or after June 30,
2001 and all Preferred Securities must be redeemed no later than June 30, 2018.
The Preferred Securities are convertible, at the option of the holder, into
common stock of the Company at a rate of 1.6280 shares of common stock for each
Preferred Security, which is equivalent to a conversion price of $30.713 per
share. The net proceeds of the offering were used to repay outstanding
indebtedness. Minority interest reflected in the accompanying consolidated
statements of operations represents dividends on the Preferred Securities at a
rate of 6 3/4 percent, net of income tax benefits at the Company's incremental
tax rate of 40 percent.
No separate financial statements of the Issuer have been included herein.
The Company does not consider that such financial statements would be material
to holders of Preferred Securities because (i) all of the voting securities of
the Issuer are owned, directly or indirectly, by the Company, a reporting
company under the Exchange Act, (ii) the Issuer has no independent operations
and exists for the sole purpose of issuing securities representing undivided
beneficial interests in the assets of the Issuer and investing the proceeds
thereof in 6 3/4 percent Convertible Subordinated Debentures due June 30, 2018
issued by the Company and (iii) the obligations of the Issuer under the
Preferred Securities are fully and unconditionally guaranteed by the Company.
5. ACQUISITIONS, INVESTMENT IN JOINT VENTURES AND DIVESTITURE
On July 29, 1999, the Company acquired all of the outstanding stock of
Active Tool Corporation and Active Products Corporation (collectively, "Active")
for total approximate consideration of $315 million. Active, which has five
facilities, designs and produces a variety of large unexposed structural
stampings, exposed surface panels, and modules to the North American automotive
industry. Active's main customers include DaimlerChrysler, Ford, General Motors,
and Saturn. Products offered by Active include body sides, pickup box sides,
fenders, floor pan assemblies, door panels, pillars, and heat shields. The
acquisition of Active enhances the Company's ability to manufacture large and
complex structures, as well as exposed surface panels. The acquisition was
financed under the Company's revolving credit facility.
Effective July 1, 1998, the Company acquired IMAR, s.r.l. ("IMAR") and
OSLAMT S.p.A. ("OSLAMT"). IMAR designs and manufactures structural parts and
assemblies from two facilities in Italy, primarily for Fiat. OSLAMT designs and
manufactures tools and assemblies for the automotive market from its facility in
Turin, Italy. The purchase price consisted of approximately $32.5 million in
cash plus the assumption of approximately $17 million of indebtedness, and an
additional $15 million for achieving certain operating targets subsequent to the
acquisition.
F-14
<PAGE> 15
TOWER AUTOMOTIVE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
On May 9, 1997, the Company acquired all of the outstanding common stock of
Societa Industria Meccanica e Stampaggio S.p.A. ("SIMES"). SIMES designs and
manufactures structural metal components from two facilities in Italy,
principally for Fiat. The purchase price, which consisted of $50.7 million in
cash, was financed with borrowings under the Company's revolving credit
facility. The Company also paid an additional $3 million for meeting certain
operating performance targets subsequent to the acquisition.
On April 18, 1997, the Company acquired and assumed substantially all of
the assets and liabilities of APC, a division of A.O. Smith Corporation. The
aggregate purchase price consisted of approximately $700 million in cash and was
financed with the proceeds from the Offering and borrowings under the new credit
facility (see Note 6). APC designs and manufactures frames, frame components,
engine cradles, suspension components and modules for the North American
automotive and heavy truck industries.
These acquisitions have been accounted for using the purchase method of
accounting and, accordingly, the assets acquired and liabilities assumed have
been recorded at fair value as of the dates of the acquisitions. The assets and
liabilities of Active have been recorded based upon preliminary estimates of
fair value as of the dates of acquisition. The Company does not believe the
final allocations of the purchase price will be materially different than the
preliminary allocations. The excess of the purchase price over the fair value of
the assets acquired and liabilities assumed has been recorded as goodwill.
Results of operations for these acquisitions have been included in the
accompanying consolidated financial statements since the dates of acquisition.
In conjunction with its acquisitions, the Company has established reserves
for certain costs associated with facility shutdown and consolidation activities
and for general and payroll related costs primarily for planned employee
termination activities. As of December 31, 1998, approximately $21.1 million and
$3.6 million were recorded for facility shutdown and payroll related costs,
respectively. Additional reserves of $5.4 million related to facility shutdown
costs and $8.7 million for payroll related costs were recorded for the year
ended December 31, 1999. Costs incurred and charged to such reserves amounted to
$2.5 million for facility shutdown costs and $5.2 million for payroll related
termination costs during the year ended December 31, 1999. Additionally, as a
result of revisions to acquisitions' restructuring plans, $10.2 million of
facility related costs and $0.7 million of payroll related costs were reversed
against goodwill in 1999. At December 31, 1999, liabilities for approximately
$13.8 million for costs associated with facility shutdown and consolidation and
$6.4 million of costs for planned employee termination activities remained. The
timing of facility shutdown and consolidation activities has been adjusted to
reflect customer concerns with supply interruption. These reserves have been
utilized as originally intended and management believes the liabilities recorded
for shutdown and consolidation activities are adequate but not excessive as of
December 31, 1999.
On October 29, 1999, the Company invested $21 million for new shares
representing a 49 percent equity interest in Seojin Industrial Company Limited
("Seojin"). Seojin is a supplier of frames, modules and structural components to
the Korean automotive industry. Total consideration for the equity interest was
financed under the Company's revolving credit facility. In addition, the Company
advanced $19 million to Seojin in exchange for variable rate convertible bonds
(the "Bonds") due October 30, 2009. The Bonds are unsecured and rank equally
with all other present and future obligations of Seojin. Interest on the Bonds
is payable annually beginning October 30, 2000 and each October 30 thereafter
until maturity. The Company has the right to convert the Bonds into common stock
of Seojin any time on or after October 30, 2000. The conversion rate is based
upon a predetermined formula that would increase the Company's equity interest
to approximately 66 percent.
On October 14, 1999, the Company loaned $30.0 million to J. L. French
Automotive Castings, Inc., ("J.L. French") in exchange for a convertible
subordinated promissory note due October 14, 2009. The note bears interest at
7.5 percent annually with interest payable on the last day of each calendar
quarter beginning December 31, 1999. The Company can convert, at its option, any
portion of the outstanding principal of the note into Class A Common Stock of
J.L. French at a preset agreed upon conversion price.
F-15
<PAGE> 16
TOWER AUTOMOTIVE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
On March 11, 1998, the Company acquired a 40 percent equity interest in
Metalurgica Caterina S.A. ("Caterina"), a supplier of structural stampings and
assemblies to the Brazilian automotive market. In addition, the Company has the
right to acquire the remaining 60 percent of the equity of Caterina for $66.0
million. This right continues until 90 days after December 31, 1999, at which
time, Caterina may exercise a call option to repurchase Tower Automotive's 40
percent equity investment for $26.4 million. The call option remains in effect
until March 31, 2001. The Company paid approximately $48 million for its initial
equity interest which was financed with borrowings under the Company's revolving
credit facility. This investment added Volkswagen and Mercedes-Benz as new
customers in Brazil.
On October 9, 1997, the Company became a 40 percent partner in Metalsa S.
de R.L. ("Metalsa") with Promotora de Empresas Zano, S.A. de C.V. ("Proeza").
Metalsa is the largest supplier of vehicle frames and structures in Mexico. In
addition, the parties have entered into a technology sharing arrangement that
will enable both companies to utilize the latest available product and process
technology. Metalsa is headquartered in Monterrey, Mexico and has manufacturing
facilities in Monterrey and San Luis Potosi, Mexico. Metalsa's customers include
Chrysler, General Motors, Ford, Nissan and Mercedes-Benz. In connection with
this agreement, the Company paid $120 million to Proeza, with an additional
amount of up to $45 million payable based upon future net earnings of Metalsa.
Based upon Metalsa's 1998 net earnings, the Company paid Proeza approximately
$9.0 million in additional consideration in the second quarter of 1999. Based
upon Metalsa's 1999 net earnings, the Company paid approximately $7.9 million of
additional consideration during the first quarter of 2000. The investment in
Metalsa was financed with proceeds from borrowings under the Company's revolving
credit facility.
Summarized unaudited financial information for Metalsa and Caterina from
the dates of their respective investment are as follows:
<TABLE>
<CAPTION>
DECEMBER 31,
-------------------
1999 1998
-------- --------
<S> <C> <C>
Condensed Statements of Earnings
Revenues.................................................... $271,804 $269,280
Operating income............................................ 56,733 60,047
-------- --------
Net income.................................................. $ 29,301 $ 28,972
======== ========
Condensed Balance Sheets
Current assets.............................................. $ 88,329 $ 91,519
Noncurrent assets........................................... 158,933 126,336
-------- --------
$247,262 $217,855
======== ========
Current liabilities......................................... $ 52,345 $ 45,562
Noncurrent liabilities...................................... 58,537 50,057
Stockholders' investment.................................... 136,380 122,236
-------- --------
$247,262 $217,855
======== ========
</TABLE>
On August 31, 1998, the Company sold its hinge business (the "Hinge
Business") to Dura Automotive Systems, Inc. for net proceeds of approximately
$36.9 million which approximated the book value of the net assets sold. The net
proceeds were used to repay outstanding indebtedness under the revolving credit
facility. The results of operations of the Hinge Business are not significant to
the operating results of the Company as a whole and have, therefore, been
excluded from the pro forma adjustments.
The accompanying unaudited consolidated pro forma results of operations for
the year ended December 31, 1999 give effect to the following as if they were
completed at the beginning of the year (i) the acquisition of Active, (ii) the
investment in Seojin, and (iii) the $325 million term loan add on facility
F-16
<PAGE> 17
TOWER AUTOMOTIVE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(Note 6). The accompanying unaudited consolidated pro forma results of
operations for the year ended December 31, 1998 give effect to the transactions
described above and the following as if they had been completed at the beginning
of the year, plus: (i) the acquisitions of IMAR and OSLAMT; (ii) the investment
in Caterina; and (iii) the issuance of the Preferred Securities. The unaudited
pro forma financial information does not purport to represent what the Company's
results of operations would actually have been if such transactions in fact had
occurred at such date or to project the Company's results of future operations
(in thousands, except per share data):
<TABLE>
<CAPTION>
PRO FORMA FOR THE YEARS
ENDED DECEMBER 31,
-----------------------
1999 1998
---------- ----------
<S> <C> <C>
Revenues.................................................... $2,363,925 $1,867,543
Net income.................................................. $ 126,039 $ 84,582
Basic earnings per share.................................... $ 2.69 $ 1.83
Diluted earnings per share.................................. $ 2.24 $ 1.60
</TABLE>
6. LONG-TERM DEBT:
Long-term debt consisted of the following (in thousands):
<TABLE>
<CAPTION>
DECEMBER 31,
-------------------
1999 1998
-------- --------
<S> <C> <C>
Revolving credit facility, due April 2003, interest at prime
or LIBOR plus a margin ranging from 17 to 50 basis points
(6.7 percent at December 31, 1999 and 5.785 percent at
December 31, 1998)........................................ $245,700 $190,000
Revolving credit facility, due April 2003, foreign currency
annex (3.80 percent at December 31, 1999 and 3.711 percent
at December 31, 1998)..................................... 75,979 67,563
Term credit facility, due in eight equal repayments
beginning September 2000 to June 2004. Interest at LIBOR
or preference rate plus margin from 0 to 200 basis points
(7.13 percent at December 31, 1999)....................... 324,210 --
Industrial development revenue bonds, due in lump sum
payments in June 2024 and March 2025, interest payable
monthly at a rate adjusted Weekly by the bond remarketing
agent (6.55 percent at December 31, 1999 and 5.58 percent
at December 31, 1998)..................................... 43,765 43,765
Convertible Edgewood notes, due May 2003, interest at 5.75
percent Payable quarterly................................. 878 1,636
Italian stand alone borrowings, due on demand, interest set
at borrowing (4.47 percent at December 31, 1998).......... -- 10,889
Other....................................................... 11,644 16,412
-------- --------
702,176 330,265
Less-Current maturities..................................... (2,498) (13,686)
-------- --------
$699,678 $316,579
======== ========
</TABLE>
F-17
<PAGE> 18
TOWER AUTOMOTIVE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Future maturities of long-term debt as of December 31, 1999 are as follows
(in thousands):
<TABLE>
<S> <C>
2000...................................................... $ 2,498
2001...................................................... --
2002...................................................... 81,053
2003...................................................... 484,662
2004...................................................... 81,053
Thereafter................................................ 52,910
--------
$702,176
========
</TABLE>
The Company has a Credit Agreement, as defined, which includes a revolving
credit facility that provides for borrowings of up to $750 million on an
unsecured basis with a letter of credit sublimit of $75 million. In addition,
under the terms of the revolving credit facility, the equivalent of up to $85
million in borrowings can be denominated in foreign currency. As of December 31,
1999, approximately $76 million of the outstanding borrowings are denominated in
Italian lira. The amount available under the revolving credit facility reduces
to $675 million in April 2000, $600 million in April 2001 and $500 million in
April 2002. The Credit Agreement has a final maturity of April 2003. Interest on
the credit facility is at the prime rate or LIBOR plus a margin ranging from 17
to 50 basis points depending upon the ratio of the consolidated indebtedness of
the Company to its total capitalization. The weighted average interest rate for
such borrowings was 6.0 percent for the year ended December 31, 1999.
On August 23, 1999, the Company amended and restated its Credit Agreement
to include a term loan add on facility of $325 million. The weighted average
interest rate for the term loan facility was 7.4 percent for the twelve months
ending December 31, 1999. The proceeds from the term facility were used to repay
outstanding indebtedness under the revolving facility incurred in connection
with the acquisition of Active on July 29, 1999.
The Credit Agreement requires the Company to meet certain financial tests,
including but not limited to a minimum interest coverage, maximum debt/capital,
maximum leverage and maximum senior leverage ratio.
The Credit Agreement also contains certain negative covenants that
restrict, among other things, the ability of the Company to: (i) incur any liens
and other encumbrances; (ii) sell, assign, lease or transfer assets; (iii)
consolidate or merge with another person; (iv) make loan or make any investment
in any person; (v) incur any additional indebtedness; (vi) engage in
transactions with affiliates; (vii) incur any contingent obligations; (viii)
enter into any joint venture; (ix) enter into any obligations for the payment of
rent for any property under a lease or agreement to lease; declare or make any
dividend payment or other distribution of assets, properties, cash, rights,
obligations or securities on account of any shares of its capital stock, or
purchase, redeem or otherwise acquire or retire for value any subordinated
indebtedness or any shares of its capital stock; (x) engage in a prohibited
transaction or violation of the fiduciary responsibility rules with respect to
any employee benefit plan qualified under ERISA which has resulted or could
reasonably be expected to result in liability in an aggregate amount in excess
of 10 percent of the Company's tangible net worth; and (xi) engage in any
material line of business substantially different from their existing lines of
business. As of December 31, 1999 and 1998, the Company was in compliance with
all debt covenants.
In July 1997, the Company completed the offering of $200 million of
Convertible Subordinated Notes (the "Notes"). The Notes bear interest at 5
percent, are unsecured, due on August 1, 2004 and are convertible into Common
Stock at a conversion price of $25.88 per share. The Company may make optional
redemptions of the Notes after August 1, 2000 at amounts ranging from 102.857
percent to 100.714 percent of face value. In the event of a change in control
(as defined) the holders of the Notes may require the Company to redeem the
Notes at face value plus accrued interest. Proceeds from the Notes were used to
repay outstanding indebtedness under the revolving credit facility.
F-18
<PAGE> 19
TOWER AUTOMOTIVE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
In 1994 and 1995, the Company issued $25.0 million and $20.0 million,
respectively, of industrial development revenue bonds related to the
construction and equipping of a manufacturing facility in Bardstown, Kentucky.
The bonds are collateralized by letters of credit. The undisbursed proceeds from
these bonds are invested in treasury securities and reflected as restricted cash
in the accompanying consolidated balance sheets. As of December 31, 1999, there
remained no undisbursed proceeds from these bonds.
7. INCOME TAXES:
The income tax provision consisted of the following (in thousands):
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
---------------------------
1999 1998 1997
------- ------- -------
<S> <C> <C> <C>
Currently payable....................................... $29,338 $16,296 $ 7,310
Deferred income tax provision........................... 45,528 37,847 24,980
------- ------- -------
Total......................................... $74,866 $54,143 $32,290
======= ======= =======
</TABLE>
The deferred income tax provision consisted of the following (in
thousands):
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
---------------------------
1999 1998 1997
------- ------- -------
<S> <C> <C> <C>
Depreciation lives and methods.......................... $53,463 $41,305 $24,893
Accrued compensation costs.............................. 902 74 (1,539)
Other reserves and accruals............................. (8,837) (3,532) 1,626
------- ------- -------
Net deferred income tax provision............. $45,528 $37,847 $24,980
======= ======= =======
</TABLE>
A reconciliation of income taxes computed at the statutory rates to the
reported income tax provision is as follows (in thousands):
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
---------------------------
1999 1998 1997
------- ------- -------
<S> <C> <C> <C>
Taxes at federal statutory rates........................ $65,508 $47,438 $28,339
State income taxes, net of federal benefit.............. 4,940 3,692 2,227
Effect of permanent differences, primarily goodwill
amortization.......................................... 4,418 3,013 1,724
------- ------- -------
Provision for income taxes.................... $74,866 $54,143 $32,290
======= ======= =======
</TABLE>
F-19
<PAGE> 20
TOWER AUTOMOTIVE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
A summary of deferred income tax assets (liabilities) is as follows (in
thousands):
<TABLE>
<CAPTION>
DECEMBER 31,
---------------------
1999 1998
--------- ---------
<S> <C> <C>
Current deferred tax assets:
Accrued compensation costs................................ $ 4,709 $ 7,927
Inventory valuation adjustments........................... 2,120 2,971
Other reserves and accruals not currently deductible for
tax purposes........................................... 12,424 3,140
--------- ---------
Net current deferred tax assets................... $ 19,253 $ 14,038
========= =========
Noncurrent deferred tax assets (liabilities):
Depreciation lives and methods............................ $(145,366) $(100,984)
Postretirement benefit obligations........................ 42,153 39,429
Other reserves and accruals not currently deductible for
tax purposes........................................... 52,477 41,179
--------- ---------
Net noncurrent deferred tax liabilities........... $ (50,736) $ (20,376)
========= =========
</TABLE>
The Company has an alternative minimum tax ("AMT") credit carryforward of
approximately $24 million which can be used to offset regular income taxes
payable in future years. The AMT credit has an indefinite carryforward period.
The Company has not recorded deferred income taxes applicable to
undistributed earnings of its foreign joint venture operations as all such
earnings are deemed to be indefinitely reinvested in those operations. If the
earnings of such joint ventures were not indefinitely reinvested, a deferred
liability would have been required which would not have been material as of
December 31, 1999 or 1998. Undistributed amounts, if remitted in the future, may
not result in additional U.S. income taxes because of the use of available
foreign tax credits at that time.
8. GEOGRAPHIC AND PRODUCT LINE INFORMATION
The Company adopted SFAS No. 131 in 1998. The Company produces a broad
range of assemblies and modules for vehicle body structures and suspension
systems for the global automotive industry and operates in a single reportable
business segment, automotive products. However, because of the similar economic
characteristics of the operations, including the nature of products, production
processes and customers, those operations have been aggregated for segment
reporting purposes.
The following is a summary of revenues and long-lived assets by geographic
location (in thousands):
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
---------------------------------------------------------------------------
1999 1998 1997
----------------------- ----------------------- -----------------------
LONG-LIVED LONG-LIVED LONG-LIVED
REVENUES ASSETS REVENUES ASSETS REVENUES ASSETS
---------- ---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C>
North America........... $2,042,998 $1,034,745 $1,752,149 $785,720 $1,194,196 $693,896
Other foreign
countries............. 127,005 58,082 84,330 47,356 41,633 20,203
---------- ---------- ---------- -------- ---------- --------
$2,170,003 $1,092,827 $1,836,479 $833,076 $1,235,829 $714,099
========== ========== ========== ======== ========== ========
</TABLE>
Revenues are attributed to geographic locations based on the location of
specific production.
F-20
<PAGE> 21
TOWER AUTOMOTIVE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The following is a summary of the approximate composition by product
category of the Company's revenues:
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
------------------------------------
1999 1998 1997
---------- ---------- ----------
<S> <C> <C> <C>
Structural components............................ $1,605,040 $1,520,498 $1,080,599
Suspension components............................ 244,433 179,935 133,229
Modular assemblies............................... 208,700 136,046 22,001
Class A surfaces................................. 111,830 -- --
---------- ---------- ----------
$2,170,003 $1,836,479 $1,235,829
========== ========== ==========
</TABLE>
The Company sells its products directly to automotive manufacturers.
Following is a summary of customers that accounted for more than 10 percent of
consolidated revenues in any of the three years in the period ended December 31,
1999:
<TABLE>
<CAPTION>
1999 1998 1997
---- ---- ----
<S> <C> <C> <C>
Ford........................................................ 38% 40% 48%
DaimlerChrysler............................................. 29 27 19
General Motors.............................................. 10 10 13
</TABLE>
Receivables from these customers represented 65 percent of total accounts
receivable at December 31, 1999 and 60 percent of total accounts receivable at
December 31, 1998.
9. EMPLOYEE BENEFIT PLANS:
The Company sponsors various pension and other postretirement benefit plans
for its employees. The Company has adopted SFAS No. 132 -- Employers'
Disclosures about Pensions and Other Postretirement Benefits (SFAS No. 132).
SFAS No. 132 is intended to standardize certain footnote disclosure requirements
for pensions and other retirement benefits.
Retirement Plans:
The Company contributes to a union sponsored multi-employer pension plan
providing defined benefits to certain Michigan hourly employees. Contributions
to the pension plan are based on rates set forth in the Company's union
contracts. The expense related to this plan was $0.8 million for the year ended
December 31, 1999, $0.7 million for the year ended December 31, 1998 and $0.8
million for the year ended December 31, 1997. The plan was substantially fully
funded as of the latest valuation date.
Beginning in 1999, the Company also contributes to a union sponsored
multiemployer pension plan providing defined benefits for certain hourly
employees of the Milwaukee facility. Expense relating to this plan was $1.3
million for the year ended December 31, 1999. Expense is determined based on
contractual rates with the union.
The Company also maintains a qualified profit sharing retirement plan and
401(k) employee savings plan covering certain salaried and hourly employees. The
expense related to these plans was $9.7 million during 1999, $5.1 million during
1998 and $4.3 million during 1997.
The Company sponsors a 401(k) employee savings plan covering certain union
employees. The Company matches a portion of the employee contributions made to
this plan. The expense under this plan in each of the three years in the period
ended December 31, 1999 was not material.
F-21
<PAGE> 22
TOWER AUTOMOTIVE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The Company's UAW Retirement Income Plan covers substantially all union
employees at its Kalamazoo and Bluffton facilities. The Company's Tower
Automotive Pension Plan covers substantially all of the employees at its APC
facilities. The Company's Tower Automotive UAW Local 1560 Retirement Income
Plan, Tower Automotive Sebewaing Industries, Inc. Local 111 AIW-AFL-CIO, Tower
Automotive Active and Affiliates Employees Retirement Income Plan, and the Tower
Automotive United Paperworkers International Union Local 7628, covers
substantially all of the employees at its Active facilities. The Tower
Automotive UAW Local 1560 Retirement Income Plan and the Tower Automotive Active
and Affiliates Plan was merged with the Tower Automotive Pension Plan at
December 31,1999. Benefits under the plans are based on years of services.
Contributions by the Company are intended to provide not only for benefits
attributed to service to date, but also for those benefits expected to be earned
in the future. The Company's funding policy is to contribute annually the
amounts sufficient to meet the higher of the minimum funding requirements set
forth in the Employee Retirement Income Security Act of 1974 or the minimum
funding requirements under the Company's union contracts.
The following tables provide a reconciliation of the changes in the benefit
obligations and fair value of assets for the defined benefit pension plans (in
thousands):
Reconciliation of fair value of plan assets
<TABLE>
<CAPTION>
1999 1998
------- ------
<S> <C> <C>
Fair value of plan assets at the beginning of the year...... $ 9,096 $3,502
Actual return on plan assets................................ 3,571 1,143
Acquisitions................................................ 41,837 --
Employer contributions...................................... 15,487 4,712
Benefits paid............................................... (1,725) (261)
------- ------
Fair value of plan assets at the end of the
year............................................ $68,266 $9,096
======= ======
</TABLE>
Change in Benefit Obligations
<TABLE>
<CAPTION>
1999 1998
------- -------
<S> <C> <C>
Benefit obligations at the beginning of the year............ $37,794 $ 8,376
Service cost................................................ 11,350 6,899
Interest cost............................................... 4,702 1,065
Plan amendments............................................. 7,141 18,786
Actuarial (gains) losses.................................... (7,647) 2,928
Acquisitions................................................ 47,667 --
Benefits paid............................................... (1,725) (261)
------- -------
Benefit obligations at the end of the year........ $99,282 $37,793
======= =======
</TABLE>
Funded Status Reconciliation
<TABLE>
<CAPTION>
1999 1998
-------- --------
<S> <C> <C>
Funded status............................................... $(31,016) $(28,697)
Unrecognized transition asset............................... (129) (160)
Unrecognized prior service cost............................. 24,584 19,345
Unrecognized actuarial (gains) losses....................... (6,579) 1,861
-------- --------
Net amount recognized............................. $(13,140) $ (7,651)
======== ========
</TABLE>
F-22
<PAGE> 23
TOWER AUTOMOTIVE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Amounts recognized in the balance sheet as of each year end
<TABLE>
<CAPTION>
1999 1998
-------- --------
<S> <C> <C>
Prepaid benefit cost........................................ $ 125 $ 264
Accrued benefit liability................................... (30,093) (26,585)
Intangible asset............................................ 16,828 18,670
-------- --------
Net amount recognized............................. $(13,140) $ (7,651)
======== ========
</TABLE>
The Tower Automotive Pension Plan was the only pension plan with an
accumulated benefit obligation in excess of plan assets. The plan's accumulated
benefit obligation was $61.2 million at December 31, 1999 and $31.5 million at
December 31, 1998. The fair value of the assets was $41.3 million at December
31, 1999 and $4.9 million at December 31, 1998. The Plan was amended effective
October 21, 1998 to reflect certain benefit level changes negotiated in
connection with the Smith Steel Workers Union contract. The effect of the change
on the pension benefit obligation is an increase of $18.7 million of
unrecognized prior service cost. The unrecognized prior service cost will be
amortized into expense over the remaining working lifetime of the participants
affected.
Benefits for certain of the employees covered by the Tower Automotive
Pension Plan were frozen as of July 1, 1999. The frozen benefits were accounted
for as a curtailment under the provisions of FAS 88, which resulted in a
remeasurement of net periodic benefit cost for the period ending December 31,
1999.
The following table provides the components of net periodic benefit cost
for the plans for the years ended December 31, 1999, 1998 and 1997 (in
thousands):
<TABLE>
<CAPTION>
1999 1998 1997
------- ------ ------
<S> <C> <C> <C>
Service cost.............................................. $11,350 $6,899 $4,757
Interest cost............................................. 4,702 1,065 250
Expected return on plan assets............................ (2,980) (263) (237)
Amortization of transition asset.......................... (31) (31) (31)
Amortization of prior-service cost........................ 1,902 393 69
Amortization of net (gains) losses........................ 202 (1) (2)
------- ------ ------
Net periodic benefit cost....................... $15,145 $8,062 $4,806
======= ====== ======
</TABLE>
The assumptions used in the measurement of the Company's benefit obligation
are as follows:
<TABLE>
<CAPTION>
1999 1998
---- ----
<S> <C> <C>
Weighted-average assumptions of each year end:
Discount rate............................................. 8.1% 7.0%
Expected return on plan assets............................ 9.5% 8.0%
Rate of compensation increase............................. 4.5% 4.5%
</TABLE>
Postretirement Plans
The Company provides certain medical insurance benefits for retired
employees. Certain employees of the Company are eligible for these benefits if
they remain employed until age 55 or 59 and fulfill other eligibility
requirements specified by the plans. Certain retirees between the ages of 55 and
62 must contribute 100 percent of the group rate for active employees. No
contributions are required for retirees 62 or older. Benefits are continued for
dependents of eligible retiree participants after the death of the retiree.
F-23
<PAGE> 24
TOWER AUTOMOTIVE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The following tables provide a reconciliation of the changes in the benefit
obligations and fair value of assets for the retiree medical plans, (in
thousands):
Reconciliation of fair value of plan assets
<TABLE>
<CAPTION>
1999 1998
------- -------
<S> <C> <C>
Fair value of plan assets at the beginning of the year...... $ -- $ --
Employer contributions...................................... 9,834 7,564
Benefits paid............................................... (9,834) (7,564)
------- -------
Fair value of plan assets at the end of the
year........................................... $ -- $ --
======= =======
</TABLE>
Change in Benefit Obligations
<TABLE>
<CAPTION>
1999 1998
-------- --------
<S> <C> <C>
Benefit obligations at the beginning of the year............ $104,735 $ 95,466
Service cost................................................ 1,511 1,609
Interest cost............................................... 8,023 6,963
Actuarial losses............................................ 6,703 8,261
Acquisitions................................................ 6,212 --
Benefits paid............................................... (9,834) (7,564)
-------- --------
Benefit obligations at the end of the year........ $117,351 $104,735
======== ========
</TABLE>
Funded Status Reconciliation
<TABLE>
<CAPTION>
1999 1998
--------- ---------
<S> <C> <C>
Funded status............................................... $(117,351) $(104,735)
Unrecognized actuarial losses............................... 12,287 6,110
--------- ---------
Net amount recognized............................. $(105,064) $ (98,625)
========= =========
</TABLE>
Amounts recognized in the balance sheet as of each year end
<TABLE>
<CAPTION>
1999 1998
--------- --------
<S> <C> <C>
Accrued benefit liability................................... $(105,064) $(98,625)
========= ========
</TABLE>
The following table provides the components of net periodic benefit cost
for the plans for years ended December 31, 1999, 1998 and 1997 (in thousands):
<TABLE>
<CAPTION>
1999 1998 1997
------- ------ ------
<S> <C> <C> <C>
Service cost.............................................. $ 1,511 $1,609 $1,178
Interest cost............................................. 8,023 6,963 4,876
Amortization of net (gain) loss........................... 477 (81) (132)
------- ------ ------
Net periodic benefit cost................................. $10,011 $8,491 $5,922
======= ====== ======
</TABLE>
The discount rate used to measure the Company's post retirement medical
benefit obligation was 8.1 percent in 1999 and 7.0 percent in 1998.
For measurement purposes, an 8.0 percent annual rate of increase in per
capita cost of covered health care benefits was assumed for 1999. The rate was
assumed to decrease gradually to 5.5 percent for 2005 and remain at that level
thereafter.
F-24
<PAGE> 25
TOWER AUTOMOTIVE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Assumed health care cost trend rates have a significant effect on the
amounts reported for the post retirement medical plans. A one percent change in
assumed health care costs trend rates would have the following effects:
<TABLE>
<CAPTION>
1% 1%
INCREASE DECREASE
-------- --------
<S> <C> <C>
Effect on total service and interest cost components........ $ 371 $ (304)
====== =======
Effect on the accumulated benefit obligation................ $4,389 $(3,854)
====== =======
</TABLE>
10. COMMITMENTS
Leases
The Company leases office and manufacturing space and certain equipment
under lease agreements which require it to pay maintenance, insurance, taxes and
other expenses in addition to annual rentals. Future annual rental commitments
at December 31, 1999 under these leases are as follows (in thousands):
<TABLE>
<CAPTION>
YEAR OPERATING CAPITAL
- ---- --------- -------
<S> <C> <C>
2000........................................................ $14,040 $12,240
2001........................................................ 13,795 8,025
2002........................................................ 12,372 8,291
2003........................................................ 6,699 9,124
2004........................................................ 10,922 --
Thereafter.................................................. 41,439 --
------- -------
Total minimum lease payments................................ $99,267 37,680
=======
Less-amount representing interest........................... 4,759
-------
Present value of minimum lease Payments..................... $32,921
=======
</TABLE>
Total rent expense for all operating leases totaled $15.0 million, $19.0
million and $20.7 million in 1999, 1998 and 1997, respectively.
Rent commitments associated with acquired facilities which will not be
utilized by the Company have been excluded from the above amounts and were
provided for in the recording of the related acquisition, as discussed in Note
5.
Litigation
The Company is party to certain claims arising in the ordinary course of
business. In the opinion of management, based upon the advice of legal counsel,
the outcomes of such claims are not expected to be material to the Company's
financial position and statements of operations.
11. RELATED PARTY TRANSACTIONS
The Company has made payments to Hidden Creek Industries, an affiliate of
the Company, for certain acquisition related and other management services
totaling $3.1 million during 1999, $2.9 million during 1998 and $3.3 million
during 1997.
12. EVENT SUBSEQUENT TO YEAR-END
During the first quarter of 2000, the Company acquired all of the
outstanding shares of Dr. Meleghy GmbH & Co. KG Werkzeugbau und Presswerk,
Bergisch Gladbach ("Dr. Meleghy") for approximately
F-25
<PAGE> 26
TOWER AUTOMOTIVE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
$86.4 million. Dr. Meleghy designs and produces structural stampings,
assemblies, exposed surface panels and modules to the European automotive
industry. Dr. Meleghy also designs and manufactures tools and dies for use in
their production and for the external market. Dr. Meleghy operates three
facilities in Germany and one facility in both Hungary and Poland. Dr. Meleghy's
main customers include DaimlerChrysler, Audi, Volkswagen, Ford, Opel, and BMW.
Products offered by Dr. Meleghy include body side panels, floor pans assemblies,
and miscellaneous structural stampings. The Company may pay an additional $38
million if certain operating targets are met. The acquisition was financed under
the Company's revolving credit facility.
13. QUARTERLY FINANCIAL DATA (UNAUDITED)
The following is a condensed summary of quarterly results of operations for
1999 and 1998. The sum of the per share amounts for the quarters do not equal
the total for the years due to the effects of rounding (in thousands except per
share amounts):
<TABLE>
<CAPTION>
BASIC DILUTED
GROSS OPERATING NET EARNINGS EARNINGS
REVENUES PROFIT INCOME INCOME PER SHARE PER SHARE
---------- -------- --------- -------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
1999:
First.............. $ 498,572 $ 79,447 $ 53,577 $ 28,076 $0.60 $0.51
Second............. 530,680 87,029 58,704 32,628 0.69 0.58
Third.............. 536,152 82,301 48,468 23,741 0.50 0.44
Fourth............. 604,599 98,123 64,398 32,643 0.70 0.58
---------- -------- -------- -------- ----- -----
$2,170,003 $346,900 $225,147 $117,088 $2.50 $2.10
========== ======== ======== ======== ===== =====
1998:
First.............. $ 457,129 $ 63,189 $ 38,785 $ 18,820 $0.41 $0.37
Second............. 465,874 70,854 46,720 23,746 0.51 0.46
Third.............. 444,851 66,989 39,525 18,266 0.40 0.36
Fourth............. 468,625 73,280 50,641 27,208 0.59 0.50
---------- -------- -------- -------- ----- -----
$1,836,479 $274,312 $175,671 $ 88,040 $1.91 $1.68
========== ======== ======== ======== ===== =====
</TABLE>
F-26
