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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
|X| ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the Fiscal Year Ended December 31, 1997
|_| TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the Transition Period From ____ to ____
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Commission File Number : 0-25642
COMMONWEALTH INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 13-3245741
(State of incorporation) (I.R.S. Employer Identification No.)
500 West Jefferson Street
19th Floor
Louisville, Kentucky 40202-2823
(Address of principal executive office) (Zip Code)
Registrant's telephone number, including area code: (502) 589-8100
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act:
Common Stock; Stock Purchase Rights
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. |_|
The aggregate market value of the common stock held by non-affiliates
of the registrant as of February 23, 1998 was $226,340,000.
The number of shares outstanding of the registrant's common stock as of
February 23, 1998 was 15,946,500.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the annual report to stockholders of Commonwealth
Industries, Inc. for the year ended December 31, 1997 are incorporated by
reference into Parts I and II and portions of the definitive Proxy Statement
dated March 16, 1998 for the 1998 Annual Meeting of Stockholders to be held
April 24, 1998 are incorporated by reference into Part III.
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<PAGE>
COMMONWEALTH INDUSTRIES, INC.
FORM 10-K
For the Year Ended December 31, 1997
INDEX
<TABLE>
<CAPTION>
PART I Page
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<S> <C>
Item 1. Business...................................................................3
Item 2. Properties................................................................11
Item 3. Legal Proceedings.........................................................11
Item 4. Submission of Matters to a Vote of Security Holders.......................11
Item E.O. Executive Officers of the Registrant......................................11
PART II
Item 5. Market for Registrant's Common Stock and Related Stockholder Matters......12
Item 6. Selected Financial Data...................................................13
Item 7. Management's Discussion and Analysis of Financial Condition and
Results of Operations.................................................13
Item 8. Financial Statements and Supplementary Data...............................13
Item 9. Changes in and Disagreements with Accountants on Accounting
and Financial Disclosures.............................................13
PART III
Item 10. Directors and Executive Officers of the Registrant........................14
Item 11. Executive Compensation....................................................14
Item 12. Security Ownership of Certain Beneficial Owners and Management............14
Item 13 Certain Relationships and Related Transactions............................14
PART IV
Item 14. Exhibits, Financial Statement Schedule and Reports on Form 8-K............14
Signatures................................................................20
</TABLE>
<PAGE>
PART I
Item 1. Business.
Commonwealth Industries, Inc. (the "Company") is one of North
America's leading manufacturers of aluminum sheet and, through its Alflex
Corporation subsidiary ("Alflex"), of electrical flexible conduit and prewired
armored cable.
The Company's aluminum sheet products are produced using the
conventional, direct -chill rolling ingot casting process at the Company's
multi-purpose aluminum rolling mill at Lewisport, Kentucky, one of the largest
in North America, and by the continuous casting process at its facilities
located in Uhrichsville, Ohio, and Carson, California. The Company operates
coating lines at the Lewisport mill and at Company facilities in Bedford, Ohio,
and Torrance, California. It also operates tube mills at the Bedford and Carson
locations. The electrical flexible conduit and prewired armored cable products
are manufactured at the Alflex facilities in Long Beach, California. The Ohio
and California facilities were acquired through the purchase by the Company of
CasTech Aluminum Group Inc.
("CasTech") on September 20, 1996.
The aluminum sheet products manufactured by the Company are generally
referred to as common alloy products. They are produced in a number of aluminum
common alloys with thicknesses (gauge) of 0.008 to 0.250 inches, widths of up to
72 inches, physical properties and packaging, in each case to meet customer
specifications. These products are sold to distributors and end-users,
principally for use in building and construction products such as roofing,
siding, windows and gutters; transportation equipment such as truck trailers and
bodies and automotive parts; beverage cans; and consumer durables such as
cookware, appliances and lawn furniture. The Bedford and Carson facilities also
fabricate aluminum sheet into welded tube products for various markets.
Substantially all of the Company's aluminum sheet products are produced in
response to specific customer orders. Production approached one billion pounds
of aluminum sheet products in 1997. In 1996, the North American market for
aluminum sheet products, excluding sheet used to produce aluminum beverage cans,
was approximately five billion pounds.
Alflex manufactures metallic (aluminum and steel) and non-metallic
(plastic) electrical flexible conduit and prewired armored cable, utilizing
aluminum sheet manufactured by the Company. These products provide mechanical
protection for electrical wiring installed in buildings in accordance with local
building code requirements. Armored cable differs from electrical conduit in
that it is pre-wired by Alflex, whereas end-users must pull wire through
electrical conduit when conduit is installed. These products are used primarily
by electrical contractors in the construction, renovation and remodeling of
commercial and industrial facilities and multi-family dwellings. They also are
used in the heating, ventilating and air-conditioning ("HVAC"), original
equipment manufacturers ("OEM") and Do-It-Yourself ("DIY") markets. The products
include preassembled and prepackaged products for commercial and DIY markets and
commercial pre-fabricated wiring systems which provide significant savings in
labor and installation costs for end-users.
Historically, electrical wires were housed in rigid pipes in the walls
of buildings. Rigid pipe remains the most widely used means of protecting wiring
in commercial and other non-residential construction. Electrical flexible
conduit made from steel was introduced in the 1920s. Flexible conduit is
significantly easier to install than rigid pipe, resulting in cost savings to
the installer. Aluminum flexible conduit, introduced to the market by Alflex,
has in recent years become a significant factor due to its ease of installation,
lighter weight and ease of cutting compared to steel flexible conduit or rigid
pipe. In wet, harsh or corrosive environments, non-metallic or plastic jacketed
steel flexible conduit may be used. Armored cable (conduit with pre-installed
wire) made of steel or aluminum has captured an increasing share of the market
from rigid pipe due to its pre-assembly, ease of installation and overall cost
effectiveness.
The Company estimates that at December 31, 1997 it had a backlog of
firm orders for which product specifications have been defined of 306.7 million
pounds of aluminum sheet products with an aggregate sales price of $327.7
million, compared to an estimated of 175.8 million pounds with an aggregate
sales price of $163.2 million at December 31, 1996. Backlog is not a significant
factor for the Company's electrical products.
In April 1997, the Company name, formerly Commonwealth Aluminum
Corporation, was changed to Commonwealth Industries, Inc. to recognize that,
with the acquisition of the Alflex electrical conduit and armored cable
division, the Company's operations now extend beyond aluminum. The aluminum
sheet operations, which are conducted through subsidiary corporations, continue
to be conducted under the Commonwealth Aluminum name.
In September 1997, the Company sold in an underwritten public offering
5,750,000 shares of Common Stock for net proceeds of approximately $97.7
million. Also in September the Company sold $150 million of its trade
receivables pursuant to an accounts receivable securitization facility
established with a financial institution. The net proceeds of the transactions
were used to repay a portion of the debt incurred to finance the 1996
acquisition of CasTech.
Recent Development
On December 19, 1997, the Company and Noranda Aluminum, Inc. announced
they had executed a letter of intent pursuant to which the Company will explore
the purchase of the Noranda aluminum rolling mill in Scottsboro, Alabama. The
Scottsboro aluminum rolling mill has an annual capacity of approximately 300
million pounds. The letter of intent is preliminary and the consummation of any
transaction is subject to due diligence investigation, negotiation of terms,
execution of definitive documentation, and board approvals. There can be no
assurance that any transaction will be completed. It is expected that this
potential acquisition, if completed, would be funded by increasing the Company's
accounts receivable securitization facility and through other debt sources.
Aluminum Sheet Products
Manufacturing
The Company's aluminum sheet manufacturing facilities are comprised of
the Lewisport, Kentucky, rolling mill and the former CasTech rolling mills at
Uhrichsville, Ohio, and Carson, California, coating facilities at Bedford, Ohio,
and Torrance, California, and tube mills at Bedford and Carson.
The Lewisport mill uses the conventional, vertical direct-chill,
rolling ingot casting process. This process permits the production of
traditional aluminum sheet with strength, hardness, formability, finishing and
other characteristics preferred for many applications. The flexibility permitted
by this multi-purpose rolling mill enables the Company to target higher margin
products, manufacture a variety of products with consistent high quality and
respond quickly to shifts in market demand. In 1997, the Lewisport mill produced
645 million pounds of aluminum sheet products, up from 619 million pounds in
1996. The increase in production was achieved by focusing upon plant operating
efficiencies, improving employee productivity, eliminating manufacturing
bottlenecks, emphasizing on-time production and delivery to minimize scheduling
disruptions, improving plant yields, improving plant maintenance practices to
increase machine utilization and increasing market share by emphasizing quality,
on-time delivery and customer service. Increased production has reduced the unit
costs of production, in part because a large portion of the costs of a rolling
mill are fixed costs which do not vary with production volume. Unit costs of
converting metal to aluminum sheet products at Lewisport declined by 9% from
1992 to 1997 and are believed to be among the lowest in the industry for plants
using the conventional process. The Company plans to further increase production
capacity at the Lewisport mill. Achievement of further capacity increases will
require a quantity of rolling ingot which exceeds the Company's current casting
capacity. Alternatives for supplying additional rolling ingot are being reviewed
by the Company, including expanding existing casting capacity. No decision has
been made at this time.
The Uhrichsville and Carson mills use low-cost, scrap-based twin-belt
mini-mill continuous casting production technology. This process permits the
efficient production of aluminum sheet alloys used in building and construction
and other applications not requiring the more complex alloys or the physical
characteristics better provided by the conventional casting method. The process
eliminates several steps associated with conventional casting, thereby reducing
manufacturing costs. Capital costs also are significantly lower than for mills
using the conventional casting process. Since 1993, the annual capacity of the
Uhrichsville and Carson mills has been increased by over 50% from approximately
250 million pounds to 380 million pounds in 1997. The increased capacity and a
continuous improvement strategy resulted in a significant reduction in sheet
production costs. The Company believes that its continuous cast mill in
Uhrichsville has the lowest conversion costs per pound in the world. An upgrade
of the cold mill at Uhrichsville in 1996 increased mill speed capability and
significantly improved gauge and flatness control. A current capital spending
program is expected to bring the annual capacity of the continuous cast mills to
422 million pounds by midyear 1999.
Aluminum Supply
Most of the aluminum metal used by the Company's rolling mills is
purchased, principally from or through aluminum scrap dealers or brokers, in the
form of aluminum scrap. The Company believes it is one of the largest users of
aluminum scrap other than beverage can scrap in the United States, and that the
volume of its purchases assists it in obtaining scrap at competitive prices. The
Company's remaining requirements are met with purchased primary metal, including
metal produced in Russia to specifications that differ from the industry
standard for primary aluminum but that is appropriate for the Company's needs.
Casting and Rolling
At Lewisport, scrap, in some cases after processing in the Company's
recycling facilities, and primary aluminum are melted in induction or
reverbatory furnaces. Small amounts of copper, magnesium, manganese and other
metals are added to produce alloys with the desired hardness, formability and
other physical characteristics. The molten aluminum is then poured through a
mold surrounded by circulating water, which cools and solidifies into an ingot
about 24 inches thick and weighing as much as 40,000 pounds. The cooled ingot is
transported for processing in the rolling mill. The Company is developing a plan
to spend an estimated $10 million to $12 million during the 1998-2001 period to
bring the casting facilities at Lewisport constructed in 1965, which currently
supply 60% of its ingot casting needs, into compliance with more stringent clean
air regulatory regulations expected to come into effect in 2002 and to update
and improve plant infrastructure associated with those facilities. A decision to
proceed with this plan awaits the publication of proposed regulations by the
federal authorities and a review of their requirements.
The rolling ingots are heated to a malleable state in soaking pits or
tunnel furnaces. Then, in the next two stages--hot and cold rolling--the ingot
is passed between rolls under pressure, causing it to become thinner and longer.
The first rolling stage takes place in a "reversing" mill, so named because the
ingot is passed back and forth between the work rolls, reversing itself after
each pass. After it passes through the reversing mill the aluminum sheet moves
through a continuous multi-stand hot mill, and then is cooled and cold rolled to
its final thickness.
The Uhrichsville and Carson rolling mills employ the continuous casting
process in which molten aluminum is fed into a caster which produces a
continuous thin slab that is immediately hot rolled into semi-finished aluminum
sheet in a single manufacturing process. The aluminum sheet is then cooled and
cold rolled to its final thickness as in the conventional process. The
Uhrichsville and Carson mills use twin-belt thin-slab continuous casting, which
the Company believes is the most efficient and most productive form of
continuous casting.
The Company and IMCO Recycling, Inc ("IMCO") are parties to a Supply
Agreement under which IMCO serves as the major supplier of recycled aluminum for
the Company's Uhrichsville mill. Under the Supply Agreement, the Company
purchases aluminum scrap and delivers it to IMCO who then processes and converts
it into molten metal at its recycling and processing facility located adjacent
to the Company's mill. The Company is responsible for the treatment and disposal
of the waste generated as a result of IMCO's processing services on behalf of
the Company. The Supply Agreement expires March 31, 2003, subject to the
Company's option to renew the agreement for an additional 10-year term. The
Company has an option to purchase up to a 49% interest in the IMCO facility and
a right of first refusal if IMCO wishes to sell the facility.
The Carson rolling mill processes its own scrap to produce molten
metal, utilizing current delacquering and melting technology.
The Company has paid a one-time license fee for certain technology used
in its continuous casting process. The license agreement allows the Company the
use of certain inventions, technical discoveries and apparatus of the licensor
in the manufacturing process.
Finishing and Coating
After hot and cold rolling is complete, the aluminum sheet is leveled
to ensure required flatness and may be slit into narrower widths, embossed or
painted to customers' specifications.
The Company is an industry leader in the development and production of
superior quality coated aluminum products and operates at Lewisport the largest
coating line integrated with a United States rolling mill. Coating lines at the
Company's Bedford and Torrance facilities serve the Uhrichsville and Carson
rolling mills. In the coating process, aluminum sheet is chemically cleaned,
painted and then cured to produce a durable coated surface.
Packaging and Shipping
Finished products are shipped to customers by truck or rail in coils of
various size and weighing up to 30,000 pounds.
Electrical Products
Alflex fabricates its flexible conduit and armored cable at its Long
Beach, California, facility. Alflex purchases its aluminum sheet from the
Company's nearby Carson, California, rolling mill, making Alflex the only
backward integrated manufacturer of electric flexible conduit and cable. Alflex
also uses significant amounts of copper and steel as raw materials.
Alflex designs and builds much of the equipment used to manufacture its
products. The Company believes that the ability of Alflex to design and build
its own equipment has significantly reduced its manufacturing costs by lowering
its cost of capital, increasing output and reducing set-up times and waste.
Alflex fabricates its electrical products by slitting aluminum or steel
sheet on specialized narrow-width slitting equipment, after which the sheet is
coiled. The coils are then fed through proprietary forming machines to produce
the flexible conduit. For its cable products, Alflex draws copper into wire,
coats the wire with plastic insulation and, for certain products, wraps the
coated wire with paper or plastic. The protective armoring is then wrapped
around the cabled wire. To produce its non-metallic conduit, Alflex uses a
specialized co-extrusion process involving both rigid and flexible plastics
(PVC). After production, the conduit and cable products are cut to length and
packaged.
Alflex has designed its manufacturing processes to allow it to produce
a wide range of electrical flexible conduit and prewired armored cable products.
The Company believes this manufacturing flexibility has contributed
significantly to the growth in this business. Also, since the acquisition of the
Alflex business, the Company has increased Alflex's electrical conduit and cable
manufacturing capacity. Unit sales increased from 485 million feet in 1996 (on a
proforma basis) to 522 million feet in 1997.
Alflex net sales in 1997 were $127 million, or 11.6% of the Company's
total net sales. For the period September 20 to December 31, 1996, Alflex sales
were $35 million.
Customers and Markets
The Company's aluminum sheet products are sold to distributors as well
as end-users, principally in the building and construction, transportation,
beverage can and consumer durables markets.
The following table sets forth for 1997 and 1996 the percentage of
aluminum sheet net shipments contributed by each of these classes of customers
and the Company's estimate of its share of these markets in North America.
% of Net Shipments % Market Share
-------------------- -------------------
1997 1996 1997 1996
---- ---- ---- ----
Building and construction 37 24 36 15
Distribution 30 39 23 22
Transportation 11 12 19 17
Beverage cans 8 10 2 2
Consumer durables and othe 14 15 18 5
--- ---
100 100
=== ===
The inclusion of the former CasTech operations for a full year in 1997
resulted in an increase in the proportion of the Company's business accounted
for by the building and construction market and in the Company's share of the
market for building and construction and consumer durables and other.
The building and construction sector is the largest end-use market
other than beverage cans for common alloy aluminum sheet products.
The Company believes it is the largest supplier of common alloy
aluminum sheet to distributors. Distributors, in some cases after slitting,
punching, leveling or other processing, resell the Company's products into
end-use markets, including the building and construction, transportation and
consumer durables markets.
The Company is one of the largest suppliers of aluminum sheet products
to North American manufacturers of transportation equipment, including truck
trailers and bodies, recreational vehicles and automobile parts.
The Company also produces aluminum sheet for the manufacture of
beverage cans. Can sheet is the largest single end-use of aluminum sheet,
accounting for about one-half of the estimated world-wide market. Much of this
product is produced by large, single-purpose rolling mills. The Company
participates in this market in recognition of the size of the market and the
strategic importance of maintaining a position in that business. In addition,
many of the advances in aluminum rolling mill technology are developed for the
production of can sheet and participation in this market supports the Company's
effort to maintain its technological proficiency for all of the Company's
products.
The largest volume in the category of consumer durables and other
markets for the Company is reroll stock sold for further processing and
conversion for a variety of markets. The other major end-uses of this product
category are cookware, appliances and irrigation pipe.
Market share estimates exclude heat-treated aluminum plate and sheet,
which the Company does not produce. The Company estimates that heat-treated
products constitute an immaterial portion of the end-use markets served by the
Company.
Company sales are made to customers located primarily throughout North
America. Sales outside North America have not been significant. No single
customer accounted for more than 10% of 1997 net sales.
Sales of aluminum sheet products are made through the Company's own
sales force which is strategically located to provide North American coverage.
An integrated computer system provides the Company's employees with on-line
access to inventory status, production schedules, shipping information and
pricing data to facilitate immediate response to customer inquiries.
Many of the Company's aluminum sheet markets are seasonal. Demand in
the building and construction and transportation markets is generally lower in
the fall and winter seasons than in the spring and summer. Warmer temperatures
in the spring and summer boost sales of can sheet as a result of increased
beverage consumption. Such factors typically result in higher operating income
in the spring and summer months.
Alflex electrical products are sold primarily through independent sales
representatives to electrical distributors. Distributors represented
approximately 83% of Alflex net sales in 1997. The remaining sales are made to
the DIY, OEM and HVAC markets. The independent sales representatives do not
market Alflex's products exclusively, but they may not sell products that are in
direct competition with products manufactured and sold by Alflex. Alflex serves
approximately 5,100 customers.
Alflex maintains registered trademarks on certain of its flexible
conduit and armored cable systems, including Ultratite, Galflex, the Alflex name
and its design, Electrician's Choice, Computer Blue, Duraclad, Armorlite and
PowerSnap. While Alflex considers these trademarks to be important to its
business, it does not believe it is dependent upon the trademarks for the
continuation of its business.
Competition
The Company competes in the production and sale of common alloy
aluminum sheet products with some 27 other aluminum rolling mills in North
America, including large, single-purpose can sheet mills, and with imported
products.
Aluminum Company of America ("Alcoa"), Alcan Aluminium Ltd. ("Alcan")
and Reynolds Metals Company have a significantly larger share of the United
States market for aluminum sheet products, including can sheet and aluminum
foil. However, in the market for common alloy aluminum sheet products other than
can sheet and aluminum foil, the market leaders are Alcoa, Alcan, Alumax Inc.,
Noranda Inc., Quanex and the Company.
The Company competes with other rolled products suppliers on the basis
of quality, price, timeliness of delivery and customer service.
Aluminum also competes with other materials such as steel, plastic
and glass for various applications.
Alflex competes with national and regional competitors and imported
products, both in the electrical flexible conduit and prewired armored cable
industry and in the pipe and wire industry. Competition is principally on the
basis of product availability and features, price and customer service.
Research and Development
The Company conducts research and development activities at its rolling
mills as part of its ongoing operations to improve product quality and reduce
manufacturing costs. Outside consultants also are used.
Alflex focuses its research and development activities on the
development of new products and the improvement of its conduit and cable
manufacturing processes through the development of proprietary manufacturing
equipment and the reduction of scrap.
The estimated amounts spent during 1997, 1996 and 1995 on
Company-sponsored research and development activities (including amounts for
Castech prior to the acquisition) were $0.8 million, $1.4 million and $1.2
million, respectively.
Environmental Matters
The Company's operations are subject to increasingly stringent
environmental laws and regulations governing air emissions, wastewater
discharges, the handling, disposal and remediation of hazardous substances and
wastes and employee health and safety. These laws can impose joint and several
liability for releases or threatened releases of hazardous substances upon
statutorily defined parties, including the Company, regardless of fault or the
lawfulness of the original activity or disposal. The Company believes it is
currently in material compliance with applicable environmental laws and
regulations.
Future regulations, under the Clean Air Act and otherwise, are expected
to impose stricter emission requirements on the aluminum industry. While the
Company believes that current pollution control measures at most of the emission
sources at its facilities will meet these anticipated future requirements,
additional measures at some of the Company's facilities, including Lewisport as
discussed above under "Aluminum Sheet Products-Casting and Rolling", may be
required.
The Company has been named as a potentially responsible party at
four federal superfund sites which were acquired in the CasTech acquisition and
is conducting remedial investigations at two of the sites for past waste
disposal activity associated with closed recycling facilities. A trust fund
exists to fund the activity at one of the sites undergoing remediation and was
established through contributions from two other parties in exchange for
indemnification from further liability. The Company is reimbursed from the fund
as approved remediation expenditures are incurred at the site. The balance
remaining in the trust fund at December 31, 1997 was approximately $2.6 million.
In determining the adequacy of the Company's aggregate environmental contingency
accrual, the assets of the trust fund were taken into account. At the two other
federal superfund sites, the Company is a minor contributor and expects to
resolve its liability for a nominal amount. The Company is under orders by
agencies in three states for environmental remediation at sites, two of which is
currently operating and two of which have been closed. Based on currently
available information, the Company estimates the range of possible remaining
losses with respect to the above matters is between $9 million and $13 million.
The Company acquired its Lewisport rolling mill and an aluminum smelter
at Goldendale, Washington ("Goldendale"), from Lockheed Martin in 1985. In
connection with the transaction, Lockheed Martin indemnified the Company against
expenses relating to environmental matters arising during the period of Lockheed
Martin's ownership of those facilities.
Environmental sampling at Lewisport has disclosed the presence of
contaminants, including polychlorinated biphenyls (PCBs), in a closed Company
landfill. The Company has not yet determined the extent of the contamination or
the nature and extent of remedial measures that may be required. Accordingly,
the Company cannot at present estimate the cost of any remediation that may be
necessary. Management believes the contamination is covered by the Lockheed
Martin indemnification, which Lockheed Martin disputes.
The aluminum smelter at Goldendale was operated by Lockheed Martin
until 1985 and by the Company from 1985 to 1987 when it was sold to Columbia
Aluminum Corporation ("Columbia"). Past aluminum smelting activities at
Goldendale have resulted in environmental contamination and regulatory
involvement. A 1993 Settlement Agreement among the Company, Lockheed Martin and
Columbia allocated responsibility for future remediation at 11 sites at the
Goldendale smelter. If remediation is required, estimates by outside consultants
of the probable aggregate cost to the Company for these sites range from $1.3
million to $7.2 million. The apportionment of responsibility for other sites at
Goldendale is left to alternative dispute resolution procedures if and when
these locations become the subject of remedial requirements.
The Company has been named as a potentially responsible party at three
third-party disposal sites relating to Lockheed Martin operations, for which
Lockheed Martin has assumed responsibilitiy.
The Company's aggregate loss contingency accrual for environmental
matters was $10.7 million at December 31, 1997, which covers all environmental
loss contingencies that the Company has determined to be probable and reasonably
estimable. It is not possible, however, to predict the amount or timing of cost
for future environmental matters which may subsequently be determined. Although
the outcome of any such matters, to the extent they exceed any applicable
accrual, could have a material adverse effect on the Company's consolidated
results of operations or cash flows for the applicable period, the Company
believes that such outcome will not have a material adverse effect on the
Company's consolidated financial condition, results of operations or cash flows.
The Company has incurred and will continue to incur capital and
operating expenditures for matters relating to environmental control and
monitoring. Capital expenditures of the Company for environmental control and
monitoring for both 1997 and 1996 were $2.3 million. All other environmental
expenditures of the Company, including remediation expenditures, for 1997, 1996
and 1995 were $3.1 million, $1.5 million, and $1.9 million, respectively.
The Company has planned environmental capital expenditures for 1998 and
1999 of $4.6 million and $1.8 million, respectively, in addition to any amounts
which may be spent to meet future clean air requirements at Lewisport as
discussed above under "Aluminum Sheet Products-Casting and Rolling".
Employees
At December 31, 1997, the Company employed 2,015 persons, of whom 1,456
were full-time non-salaried employees including 747 at Lewisport represented by
the United Steel Workers of America ("USW") and 207 at the Uhrichsville and
Bedford facilities represented by the Glass, Molders, Pottery, Plastic & Allied
Workers International, AFL-CIO, CLC union ("GMP"). Three-year collective
bargaining agreements with the USW and the GMP expire in July 1998 and December
2000, respectively. The Company believes its relationships with its employees
are good.
The Company provides a gain sharing plan for its bargaining unit
employees at Lewisport. Contributions to the plan are based upon a formula which
compares actual performance results to targets agreed upon by the management and
the USW.
A profit-sharing plan is provided for all non-bargaining unit employees
at the Company's Uhrichsville, Bedford, Carson and Torrance plants, and Alflex
provides a non-qualified defined contribution plan for eligible workers.
Contributions to both plans are at the discretion of the Company's Board of
Directors.
<PAGE>
Item 2. Properties.
The following table sets forth certain information with respect to the
Company's principal operating properties. Substantially all of these properties
collateralize borrowings under the Company's senior secured bank credit
facility.
Location Nature Square Feet Status
Louisville, Kentucky Administrative offices 22,000 Leased
Lewisport, Kentucky Rolling mill 1,700,000 Owned
Uhrichsville, Ohio Rolling mill 220,000 Owned
Carson, California Rolling mill and tube mill 103,000 Owned
Bedford, Ohio Coating facility and tube mill 103,000 Leased
Torrance, California Coating facility 60,000 Leased
Long Beach, California Alflex admininistrative 210,000 Leased
offices, manufacturing
facility and distribution center
Item 3. Legal Proceedings.
The Company is a party to non-environmental legal proceedings and
administrative actions all of which are of an ordinary routine nature incidental
to the business. In the opinion of management such proceedings and actions
should not, individually or in the aggregate, have a material adverse effect on
the Company's consolidated financial condition, results of operations or cash
flows.
Item 4. Submission of Matters to a Vote of Security Holders.
No matters were submitted to a vote of security holders during the
fourth quarter ended December 31, 1997.
Item E.O. Executive Officers of the Registrant.
The executive officers of the Company as of March 19, 1998 were:
Name Age Position with the Company
---- --- -------------------------
Mark V. Kaminski 42 President, Chief Executive Officer and Director
Roderick Macdonald 50 Executive Vice President Alflex
Donald L. Marsh, Jr. 51 Executive Vice President, Chief Financial Officer
and Secretary
Fred N. Mudge 64 Executive Vice President Commonwealth Aluminum
John F. Barron 46 Controller and Assistant Secretary
Robert R. Beal 46 Vice President Communications and Computing Services
Gregory Givan 45 Vice President and Treasurer
William G. Toler 41 Vice President Finance and Administration
Mr. Kaminski joined the Company in 1987 as Marketing Manager. In 1989
he was promoted to Vice President of Operations and in 1991 he became President
and Chief Executive Officer. He is a director of the Aluminum Association,
Washington, D. C., the Louisville, Kentucky YMCA and the Indiana University
Athletics Board.
Mr. Macdonald was employed by the Company in January 1994. From 1966
until 1993, Mr. Macdonald was an Officer in the British Army (Royal Engineers).
He retired from the British Army as a Brigadier General.
Mr. Marsh joined the Company in March 1996. Prior to that time he was
Senior Vice President of Castle Energy Corporation.
Mr. Mudge was elected to his present position in September 1996. From
1995 until that time he was Secretary of the Commonwealth of Kentucky
Transportion Cabinet, and for the preceding 10 years was President and Chief
Executive Officer of Logan Aluminum Inc.
Mr. Barron joined the Company in February 1997. From 1986 to 1996 he
held the position of Senior Vice President and Assistant Comptroller of Bank One
Kentucky, N.A.
Mr. Beal has been with the Company since 1987 and was elected to his
present position in January 1998. His most recent previous position was Manager
of Process Engineering.
Mr. Givan joined the Company in July 1997. From 1987 until 1997 he was
Second Vice President, Corporate Finance and most recently Director, Corporate
Finance and Risk Management and Assistant Treasurer of Providian Corp., a
financial services company.
Mr. Toler has been with the Company since 1980 and was elected to his
present position in April 1997. His most recent previous position was Vice
President Materials.
<PAGE>
PART II
Item 5. Market for Registrant's Common Equity and Related Stockholder Matters.
The Company's Common Stock is traded on the Nasdaq National Market
under the symbol CMIN. On February 23, 1998, there were 152 holders of record of
the Company's Common Stock. The Company estimates that there were a total of
4,800 stockholders on that date, including beneficial owners. Since becoming
publicly owned in March 1995, the Company has paid quarterly cash dividends on
its Common Stock of $0.05 per share.
The following table sets out the high and low sales prices for the
Common Stock for each quarterly period indicated, as quoted in the Nasdaq
National Market:
1997 High Low
---- ---- ---
First Quarter $20.25 $15.38
Second Quarter 21.00 16.00
Third Quarter 22.50 15.63
Fourth Quarter 19.50 13.50
1996
----
First Quarter $18.88 $15.38
Second Quarter 18.50 15.50
Third Quarter 17.63 13.63
Fourth Quarter 17.75 14.13
Item 6. Selected Financial Data.
The information captioned "Consolidated Selected Financial Data"
included on page 10 of the Company's annual report to stockholders for the year
ended December 31, 1997 is incorporated herein by reference. This information
sets forth selected consolidated statement of operations, operating and balance
sheet data for the years indicated. The financial information is derived from
the audited consolidated financial statements of the Company for such years.
This information should be read in conjunction with, and is qualified by
reference to, the consolidated financial statements of the Company and the notes
thereto and "Management's Discussion and Analysis of Financial Condition and
Results of Operations" also incorporated herein by reference.
Item 7. Management's Discussion and Analysis of Financial Condition and
Results of Operations.
The information captioned "Management's Discussion and Analysis of
Financial Condition and Results of Operations" included on pages 11 through 14
of the Company's annual report to stockholders for the year ended December 31,
1997 is incorporated herein by reference.
Item 8. Financial Statements and Supplementary Data.
The following consolidated financial statements of the Company and
report of independent auditors included on pages 15 through 31 of the Company's
annual report to stockholders for the year ended December 31, 1997 are
incorporated herein by reference.
Consolidated Balance Sheet
Consolidated Statement of Income
Consolidated Statement of Changes in Stockholders' Equity
Consolidated Statement of Cash Flows
Notes to Consolidated Financial Statements
Report of Independent Auditors
Item 9. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure.
None.
<PAGE>
PART III
Item 10. Directors and Executive Officers of the Registrant.
The information required by Item 401 (other than paragraph (b) thereof)
and Item 405 of Regulation S-K may be found under the caption Election of
Directors of the Company's Proxy Statement dated March 16, 1998 for the Annual
Meeting of Stockholders to be held on April 24, 1998 (the "Proxy Statement") and
is incorporated herein by reference. The information required by Item 401(b) of
Regulation S-K may be found under Item E.O. above.
Item 11. Executive Compensation.
The information required by Item 402 of Regulation S-K may be found
under the caption Executive Compensation in the Proxy Statement and is
incorporated herein by reference.
Item 12. Security Ownership of Certain Beneficial Owners and Management.
The information required by Item 403 of Regulation S-K may be found
under the caption Beneficial Ownership of Common Stock in the Proxy Statement
and is incorporated herein by reference.
Item 13. Certain Relationships and Related Transactions.
The information required by Item 404 of Regulation S-K may be found
under the caption Election of Directors--Compensation and Other Transactions
with Directors; Management Development and Compensation Committee Interlocks and
Insider Participation in the Proxy Statement and is incorporated herein by
reference.
<PAGE>
PART IV
Item 14. Exhibits, Financial Statement Schedules, and Reports on Form 8-K.
(a) (1) List of Financial Statements filed
The following consolidated financial statements of the Company and
report of independent auditors included in the Company's annual report to
stockholders for the year ended December 31, 1997 were incorporated by reference
in Part II, item 8 of this report:
Consolidated Balance Sheet
Consolidated Statement of Income
Consolidated Statement of Changes in Stockholders' Equity
Consolidated Statement of Cash Flows
Notes to Consolidated Financial Statements
Report of Independent Auditors
(a) (2) List of Financial Statement Schedules filed
The following report of independent accountants and financial statement
schedule should be read in conjunction with the Company's consolidated financial
statements.
Supplemental Schedule II - Valuation and Qualifying Accounts is filed
on page 19 of this report.
Report of Independent Accountants on the Company's financial statement
schedule filed as a part hereof for the years ended December 31, 1997, 1996 and
1995 is filed on page 18 of this report.
Financial statement schedules other than listed above have been omitted
since they are either not required or not applicable or the information is
otherwise included.
(b) Reports on Form 8-K.
No reports on Form 8-K were filed during the fourth quarter
ended December 31, 1997.
(c) Exhibits
3.1 Restated Certificate of Incorporation, effective
April 18, 1997 (incorporated by reference to
Exhibit 3.1 to the Company's
Quarterly Report on Form 10-Q for the quarter ended
March 31, 1997).
3.2 By-laws (incorporated by reference to Exhibit 3.3 to
the Company's Registration Statement No. 33-87294 on
Form S-1).
3.3 Stockholder Protection Rights Agreement, dated as of
March 6, 1996, including forms of Rights Certificate,
Election to Exercise and Certificate of Designation
and Terms of Participating Preferred Stock of the
Company (incorporated by reference to Exhibits (1),
(2) and (3) to the Company's Registration Statement
No. 0-25642 on Form 8-A).
10.1 Executive Incentive Compensation Plan, as amended
December 4, 1995 (incorporated by reference to
Exhibit 10.1 to the Company's Annual Report on Form
10-K for the year ended December 31, 1995).
10.2 Long-term Executive Incentive Compensation Plan
(incorporated by reference to Exhibit 10.2 to the
Company's Registration Statement No. 33-87294 on Form
S-1).
10.3 Salaried Employees Pension Plan (incorporated by
reference to Exhibit 10.4 to the Company's
Registration Statement No. 33-87294 on Form S-1).
10.4 Salaried Employees Performance Sharing Plan
(incorporated by reference to Exhibit 10.5 to the
Company's Registration Statement No. 33-87294 on Form
S-1).
10.5 1995 Stock Incentive Plan as amended and restated
April 17, 1997 (incorporated by reference to Exhibit
10.1 to the Company's Quarterly Report on Form 10-Q
for the quarter ended March 31, 1997).
10.6 1997 Stock Incentive Plan (incorporated by reference
to Exhibit 10.2 to the Company's Quarterly Report on
Form 10-Q for the quarter ended March 31, 1997).
10.7 Form of Severance Agreements between the Company and
Mark V. Kaminski, Scott T. Davis, Roderick Macdonald,
Donald L. Marsh, Jr., James K. O'Donnell, William G.
Toler and John J. Wasz (incorporated by reference to
Exhibit 10.7 to the Company's Annual Report on Form
10-K for the year ended December 31, 1995).
10.8 Deferred Compensation Plan (incorporated by reference
to Exhibit 10.1 to the Company's Quarterly Report on
Form 10-Q for the quarter ended June 30, 1996).
10.9 Second Amended and Restated Credit Agreement among
the Company, subsidiaries of the Company, the several
lenders from time to time parties thereto, and
National Westminster Bank PLC, as agent, dated as of
December 19, 1997.
10.10 Amended and Restated Pledge and Security Agreement
entered into by the Company and its subsidiaries,
collectively, in favor of National Westminster Bank
PLC, as agent, dated November 29, 1996 (incorporated
by reference to Exhibit 10.9 to the Company's Annual
Report on Form 10-K for the year ended December 31,
1996).
10.11 Amendment No.1, dated as of December 19, 1997, to the
Amended and Restated Pledge and Security Agreement
entered into by the Company and its subsidiaries,
collectively, in favor of National Westminster Bank
PLC, as agent, dated November 29, 1996.
10.12 Receivables Purchase Agreement among Commonwealth
Financing Corp., the Company, Market Street Funding
Corporation and PNC Bank, National Association, dated
as of September 29, 1997 (incorporated by reference
to Exhibit 10.1 to the Company's Quarterly Report on
Form 10-Q for the quarter ended September 30, 1997).
10.13 Non-exclusive License Agreement between Hazelett
Strip-Casting Corporation and Barmet of Kentucky,
Inc. dated as of June 2, 1982 (incorporated by
reference to Exhibit 10.07 to the CasTech Aluminum
Group Inc. Registration Statement No. 33-77116 on
Form S-1).
10.14 Agreement between Hazelett Strip-Casting Corporation,
Barmet of Kentucky, Inc. and Barmet Aluminum
Corporation, dated as of November 29, 1984
(incorporated by reference to Exhibit 10.08 to the
CasTech Aluminum Group Inc. Registration Statement
No. 33-77116 on Form S-1).
10.15 Supply agreement between Barmet Aluminum Corporation
and IMCO, dated as of March 2, 1992 (incorporated by
reference to Exhibit 10.09 to the CasTech Aluminum
Group Inc. Registration Statement No. 33-77116 on
Form S-1).
10.16 Lease of 2630 El Presidio Street, Long Beach,
California by Alflex Corporation from Brian L.
Harvey, expiring October 31, 2004 (incorporated by
reference to Exhibit 10.13 to the Company's Annual
Report on Form 10-K for the year ended December 31,
1996).
10.17 Industrial Real Estate Lease of 2303 Jefferson
Street, Torrance, California, by Barmet Aluminum
Corporation from Cypress Land Company, expiring April
30, 1999 (incorporated by reference to Exhibit 10.16
to the CasTech Aluminum Group Inc. Registration
Statement No. 33-77116 on Form S-1).
10.18 Indenture dated as of September 20, 1996 between the
Company, the Subsidiary Guarantors named therein and
Harris Trust and Savings Bank, Trustee (incorporated
by reference to Exhibit 4.2 to the Company's
Registration Statement No. 333-13661 on Form S-4).
10.19 First Supplemental Indenture, dated as of November
12, 1996, to Indenture dated as of September 20, 1996
(incorporated by reference to Exhibit 10.16 to the
Company's Annual Report on Form 10-K for the year
ended December 31, 1996).
11 Computation of Net Income Per Share.
13 Portions of the annual report to stockholders for the
year ended December 31, 1997 which are expressly
incorporated by reference in this filing.
21 Subsidiaries.
23 Consent of Coopers & Lybrand L.L.P.
27 Financial Data Schedule.
<PAGE>
Report of Independent Accountants
Board of Directors
Commonwealth Industries, Inc.
Our report on the consolidated financial statements of Commonwealth
Industries, Inc.dated February 6, 1998 has been incorporated by reference in
this Form 10-K from page 31 of the 1997 Annual Report to Stockholders of
Commonwealth Industries, Inc. In connection with our audits of such financial
statements, we have also audited the related financial statement schedule listed
in the index in Item 14 (a) (2) of this Form 10-K.
In our opinion, the financial statement schedule referred to above,
when considered in relation to the basic financial statements taken as a whole,
presents fairly, in all material respects, the information required to be
included therein.
COOPERS & LYBRAND L.L.P.
Louisville, Kentucky
February 6, 1998
<PAGE>
Supplemental Schedule II
Commonwealth Industries, Inc.
Valuation and Qualifying Accounts
December 31, 1997, 1996 and 1995
(in thousands)
<TABLE>
<CAPTION>
Additions
Balance at Charged to Charged to Balance at
Beginning Costs and Other End of
Description of Period Expenses Accounts Deductions of Period
----------- --------- --------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C>
Allowance for uncollectible accounts
December 31,1997 $2,235 $ 242 $ - $ 129 $2,348
December 31,1996 1,009 111 1,490 (a) 375 2,235
December 31,1995 780 310 - 81 1,009
Allowance for obsolete stores inventory
December 31,1997 $1,000 $ 100 $ - $ - $1,100
December 31,1996 1,000 - - - 1,000
December 31,1995 1,000 - - - 1,000
Note (a) - relates to the acquisition of CasTech.
</TABLE>
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized on March 25, 1998.
COMMONWEALTH INDUSTRIES, INC.
By /s/ Mark V. Kaminski
-----------------------
Mark V. Kaminski, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Exchange Act of
1934, this report has been signed below by the following persons on behalf of
the registrant and in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Paul E.Lego
- ------------------------------
Paul E. Lego Chairman of the Board March 25, 1998
/s/ Mark V. Kaminski
- --------------------
Mark V. Kaminski President, Chief Executive Officer and Director March 25, 1998
(Principal Executive Officer)
/s/ Catherine G. Burke
- ----------------------
Catherine G. Burke Director March 25, 1998
/s/ C. Frederick Fetterolf
- --------------------------
C. Frederick Fetterolf Director March 25, 1998
/s/ John E. Merow
- -----------------
John E. Merow Director March 25, 1998
/s/ Victor Torasso
- ------------------
Victor Torasso Director March 25, 1998
/s/ Donald L. Marsh, Jr.
- ------------------------
Donald L. Marsh, Jr. Executive Vice President, Chief Financial March 25, 1998
Officer and Secretary (Principal Financial
Officer)
/s/William G. Toler
- -------------------
William G. Toler Vice President - Finance and Administration March 25, 1998
(Principal Accounting Officer)
/s/ John F. Barron
- ------------------
John F. Barron Controller March 25, 1998
</TABLE>
<PAGE>
Exhibit Index
-------------
Exhibit
Number Description
------ -----------
3.1 Restated Certificate of Incorporation, effective
April 18, 1997 (incorporated by reference to
Exhibit 3.1 to the Company's Quarterly Report
on Form 10-Q for the quarter ended March 31,
1997).
3.2 By-laws (incorporated by reference to Exhibit 3.3 to
the Company's Registration Statement No. 33-87294 on
Form S-1).
3.3 Stockholder Protection Rights Agreement, dated as of
March 6, 1996, including forms of Rights Certificate,
Election to Exercise and Certificate of Designation
and Terms of Participating Preferred Stock of the
Company (incorporated by reference to Exhibits (1),
(2) and (3) to the Company's Registration Statement
No. 0-25642 on Form 8-A).
10.1 Executive Incentive Compensation Plan, as amended
December 4, 1995 (incorporated by reference to
Exhibit 10.1 to the Company's Annual Report on Form
10-K for the year ended December 31, 1995).
10.2 Long-term Executive Incentive Compensation Plan
(incorporated by reference to Exhibit 10.2 to the
Company's Registration Statement No. 33-87294 on Form
S-1).
10.3 Salaried Employees Pension Plan (incorporated by
reference to Exhibit 10.4 to the Company's
Registration Statement No. 33-87294 on Form S-1).
10.4 Salaried Employees Performance Sharing Plan
(incorporated by reference to Exhibit 10.5 to the
Company's Registration Statement No. 33-87294 on Form
S-1).
10.5 1995 Stock Incentive Plan as amended and restated
April 17, 1997 (incorporated by reference to Exhibit
10.1 to the Company's Quarterly Report on Form 10-Q
for the quarter ended March 31, 1997).
10.6 1997 Stock Incentive Plan (incorporated by reference
to Exhibit 10.2 to the Company's Quarterly Report on
Form 10-Q for the quarter ended March 31, 1997).
10.7 Form of Severance Agreements between the Company and
Mark V. Kaminski, Scott T. Davis, Roderick Macdonald,
Donald L. Marsh, Jr., James K. O'Donnell, William G.
Toler and John J. Wasz (incorporated by reference to
Exhibit 10.7 to the Company's Annual Report on Form
10-K for the year ended December 31, 1995).
10.8 Deferred Compensation Plan (incorporated by reference
to Exhibit 10.1 to the Company's Quarterly Report on
Form 10-Q for the quarter ended June 30, 1996).
10.9 Second Amended and Restated Credit Agreement among
the Company, subsidiaries of the Company, the several
lenders from time to time parties thereto, and
National Westminster Bank PLC, as agent, dated as of
December 19, 1997.
10.10 Amended and Restated Pledge and Security Agreement
entered into by the Company and its subsidiaries,
collectively, in favor of National Westminster Bank
PLC, as agent, dated November 29, 1996 (incorporated
by reference to Exhibit 10.9 to the Company's Annual
Report on Form 10-K for the year ended December 31,
1996).
10.11 Amendment No.1, dated as of December 19, 1997, to the
Amended and Restated Pledge and Security Agreement
entered into by the Company and its subsidiaries,
collectively, in favor of National Westminster Bank
PLC, as agent, dated November 29, 1996.
10.12 Receivables Purchase Agreement among Commonwealth
Financing Corp., the Company, Market Street Funding
Corporation and PNC Bank, National Association, dated
as of September 29, 1997 (incorporated by reference
to Exhibit 10.1 to the Company's Quarterly Report on
Form 10-Q for the quarter ended September 30, 1997).
10.13 Non-exclusive License Agreement between Hazelett
Strip-Casting Corporation and Barmet of Kentucky,
Inc. dated as of June 2, 1982 (incorporated by
reference to Exhibit 10.07 to the CasTech Aluminum
Group Inc. Registration Statement No. 33-77116 on
Form S-1).
10.14 Agreement between Hazelett Strip-Casting Corporation,
Barmet of Kentucky, Inc. and Barmet Aluminum
Corporation, dated as of November 29, 1984
(incorporated by reference to Exhibit 10.08 to the
CasTech Aluminum Group Inc. Registration Statement
No. 33-77116 on Form S-1).
10.15 Supply agreement between Barmet Aluminum Corporation
and IMCO, dated as of March 2, 1992 (incorporated by
reference to Exhibit 10.09 to the CasTech Aluminum
Group Inc. Registration Statement No. 33-77116 on
Form S-1).
10.16 Lease of 2630 El Presidio Street, Long Beach,
California by Alflex Corporation from Brian L.
Harvey, expiring October 31, 2004 (incorporated by
reference to Exhibit 10.13 to the Company's Annual
Report on Form 10-K for the year ended December 31,
1996).
10.17 Industrial Real Estate Lease of 2303 Jefferson
Street, Torrance, California, by Barmet Aluminum
Corporation from Cypress Land Company, expiring April
30, 1999 (incorporated by reference to Exhibit 10.16
to the CasTech Aluminum Group Inc. Registration
Statement No. 33-77116 on Form S-1).
10.18 Indenture dated as of September 20, 1996 between the
Company, the Subsidiary Guarantors named therein and
Harris Trust and Savings Bank, Trustee (incorporated
by reference to Exhibit 4.2 to the Company's
Registration Statement No. 333-13661 on Form S-4).
10.19 First Supplemental Indenture, dated as of November
12, 1996, to Indenture dated as of September 20, 1996
(incorporated by reference to Exhibit 10.16 to the
Company's Annual Report on Form 10-K for the year
ended December 31, 1996).
11 Computation of Net Income Per Share.
13 Portions of the annual report to stockholders for the
year ended December 31, 1997 which are expressly
incorporated by reference in this filing.
21 Subsidiaries.
23 Consent of Coopers & Lybrand L.L.P.
27 Financial Data Schedule.
(..continued)
BII\93618_8
EXECUTION COUNTERPART
IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII
COMMONWEALTH INDUSTRIES, INC.,
CI HOLDINGS, INC.,
COMMONWEALTH ALUMINUM CORPORATION
ALFLEX CORPORATION
and
COMMONWEALTH ALUMINUM CONCAST, INC.
-----------------------------
$100,000,000
-----------------------------
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of December 19, 1997
-----------------------------
NATIONAL WESTMINSTER BANK PLC,
as Administrative Agent
PNC BANK, NATIONAL ASSOCIATION,
as Documentation Agent
IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII
<PAGE>
Page
BII\93618_8
(iii)
BII\93618_8
(i)
TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which
it is attached but is inserted for convenience of reference only.
Page
Section 1. Definitions and Accounting Matters........................ 2
1.01 Certain Defined Terms................................... 2
1.02 Accounting Terms and Determinations..................... 28
1.03 Types of Loans.......................................... 29
Section 2. Commitments, Loans, Notes and Prepayments................. 29
2.01 Loans................................................... 29
2.02 Borrowings.............................................. 31
2.03 Letters of Credit....................................... 32
2.04 Changes of Commitments.................................. 37
2.05 Certain Fees............................................ 37
2.06 Lending Offices......................................... 38
2.07 Several Obligations; Remedies Independent............... 38
2.08 Notes................................................... 38
2.09 Optional Prepayments and Conversions or Continuations
of Loans................................... 39
Section 3. Payments of Principal and Interest........................ 40
3.01 Repayment of Loans...................................... 40
3.02 Interest................................................ 40
Section 4. Payments; Pro Rata Treatment; Computations; Etc........... 41
4.01 Payments................................................ 41
4.02 Pro Rata Treatment...................................... 42
4.03 Computations............................................ 43
4.04 Minimum Amounts......................................... 43
4.05 Certain Notices......................................... 44
4.06 Non-Receipt of Funds by the Administrative Agent........ 45
4.07 Sharing of Payments, Etc................................ 46
Section 5. Yield Protection, Etc..................................... 47
5.01 Additional Costs........................................ 47
5.02 Limitation on Types of Loans............................ 49
5.03 Illegality.............................................. 49
5.04 Treatment of Affected Loans............................. 50
5.05 Compensation............................................ 50
5.06 Additional Costs in Respect of Letters of Credit........ 51
5.07 U.S. Taxes.............................................. 52
5.08 Replacement of Lenders.................................. 53
Section 6. Guarantee................................................. 54
6.01 The Guarantee........................................... 54
6.02 Obligations Unconditional............................... 55
6.03 Reinstatement........................................... 56
6.04 Subrogation............................................. 57
6.05 Remedies................................................ 57
6.06 Continuing Guarantee.................................... 57
6.07 Rights of Contribution.................................. 57
6.08 Limitation on Guarantee Obligations..................... 58
Section 7. Conditions Precedent...................................... 59
7.01 Conditions to Effectiveness............................. 59
7.02 Initial and Subsequent Extensions of Credit............. 61
7.03 Certain Determinations.................................. 61
Section 8. Representations and Warranties............................ 61
8.01 Corporate Existence..................................... 61
8.02 Financial Condition..................................... 62
8.03 Litigation.............................................. 63
8.06 Approvals............................................... 63
8.07 Use of Credit........................................... 64
8.08 ERISA................................................... 64
8.09 Taxes................................................... 64
8.10 Investment Company Act.................................. 64
8.11 Public Utility Holding Company Act...................... 64
8.12 Material Agreements and Liens........................... 65
8.13 Environmental Matters................................... 65
8.14 Capitalization.......................................... 67
8.15 Subsidiaries, Etc....................................... 68
8.16 Title to Assets......................................... 69
8.17 True and Complete Disclosure............................ 69
8.18 Real Property........................................... 70
8.19 Security Documents...................................... 70
Section 9. Covenants of the Obligors................................. 70
9.01 Financial Statements, Etc............................... 70
9.02 Litigation.............................................. 73
9.03 Existence, Etc.......................................... 74
9.04 Insurance............................................... 74
9.05 Prohibition of Fundamental Changes...................... 77
9.06 Limitation on Liens..................................... 79
9.07 Indebtedness............................................ 81
9.08 Investments............................................. 81
9.09 Dividend Payments....................................... 82
9.10 Certain Financial Covenants............................. 84
9.11 Capital Expenditures.................................... 85
9.12 Subordinated Indebtedness............................... 85
9.13 Lines of Business....................................... 86
9.14 Transactions with Affiliates............................ 86
9.15 Use of Proceeds......................................... 87
9.16 Certain Obligations Respecting Subsidiaries............. 87
9.17 Modifications of Certain Documents...................... 88
9.18 Commodity Hedging Activities............................ 88
9.19 After-Acquired Real Estate.............................. 88
9.20 Activities of the Parent and Holdings. ................ 89
Section 10. Events of Default........................................ 89
Section 11. The Administrative Agent................................. 93
11.01 Appointment, Powers and Immunities..................... 93
11.02 Reliance by Administrative Agent....................... 94
11.03 Defaults............................................... 94
11.04 Rights as a Lender..................................... 95
11.05 Indemnification........................................ 95
11.06 Non-Reliance on Administrative Agent and Other Lenders. 95
11.07 Failure to Act......................................... 96
11.08 Resignation or Removal of Administrative Agent......... 96
11.09 Consents under Other Credit Documents.................. 97
11.10 Collateral Sub-Agents.................................. 97
Section 12. Miscellaneous............................................ 97
12.01 Waiver................................................. 97
12.02 Notices................................................ 98
12.03 Expenses, Etc.......................................... 98
12.04 Amendments, Etc........................................ 99
12.05 Successors and Assigns.................................100
12.06 Assignments and Participations.........................100
12.07 Survival...............................................102
12.08 Captions...............................................103
12.09 Counterparts...........................................103
12.10 Governing Law; Submission to Jurisdiction..............103
12.11 Waiver of Jury Trial...................................103
12.12 Treatment of Certain Information; Confidentiality......103
<PAGE>
BII\93618_8
(v)
SCHEDULES
SCHEDULE I -........Lenders and Commitments
SCHEDULE II -........Litigation
SCHEDULE III -........Conflicts
SCHEDULE IV -........Governmental Approvals, Etc.
SCHEDULE V -........Material Agreement and Liens
SCHEDULE VI -........Certain Environmental Matters
SCHEDULE VII -........Capitalization and Equity Rights relating to the
......... Parent
SCHEDULE VIII -........Capitalization and Equity Rights relating to
......... Holdings
SCHEDULE IX -........Capitalization and Equity Rights relating to CAC
SCHEDULE X -........Capitalization and Equity Rights relating to
......... Alflex
SCHEDULE XI -........Capitalization and Equity Rights relating to
......... CACI
SCHEDULE XII -........Subsidiaries and Investments
SCHEDULE XIII -........Title to Properties
SCHEDULE XIV -........Real Estate
EXHIBITS
EXHIBIT A-1 - .......Form of Revolving Credit Note
EXHIBIT A-2 - .......Form of Swingline Note
<PAGE>
- 30 -
BII\93618_8
Credit Agreement
BII\93618_8
Credit Agreement
SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this
"Agreement") dated as of December 19, 1997,
---------
between:
(1) COMMONWEALTH INDUSTRIES, INC., a corporation duly
organized and validly existing under the laws of the State of Delaware
(the "Parent");
(2) CI HOLDINGS, INC., a corporation duly organized and
validly existing under the laws of the State of Delaware ("Holdings");
(3) COMMONWEALTH ALUMINUM CORPORATION, a corporation duly
organized and validly existing under the laws of the State of Delaware
("CAC");
(4) ALFLEX CORPORATION, a corporation duly organized and
validly existing under the laws of the State of Delaware ("Alflex");
(5) COMMONWEALTH ALUMINUM CONCAST, INC. (formerly named Barmet
Aluminum Corporation), a corporation duly organized and validly
existing under the laws of the State of Ohio ("CACI") and, together
with CAC and Alflex, each a "Revolving Credit Borrower" and,
collectively, the "Revolving Credit Borrowers");
(6) each of the Subsidiaries of the Parent identified under
the caption "SUBSIDIARY GUARANTORS" on the signature pages hereto and
each Subsidiary of the Parent that becomes a "Subsidiary Guarantor"
after the date hereof pursuant to Section 9.16(a) hereof (each, a
"Subsidiary Guarantor" and, collectively, the "Subsidiary Guarantors");
(7) each of the lenders that is a signatory hereto identified
under the caption "LENDERS" on the signature pages hereto and each
lender that becomes a "Lender" after the date hereof pursuant to
Section 12.06(b) hereof (individually, a "Lender" and, collectively,
the "Lenders"); and
(8) NATIONAL WESTMINSTER BANK PLC, as administrative agent for
the Lenders (in such capacity, together with its successors in such
capacity, the "Administrative Agent").
PRELIMINARY STATEMENTS:
Terms used in these Preliminary Statements and not otherwise
defined shall have the meanings assigned to such terms in Section 1.01 of this
Agreement.
(1) The Obligors, the Existing Lenders and the Administrative
Agent are parties to an Amended and Restated Credit Agreement dated as of
November 29, 1996 (as heretofore modified and supplemented and in effect on the
date of this Agreement, the "Existing Credit Agreement"), which amended and
restated the Credit Agreement dated as of September 26, 1996 (the "Original
Credit Agreement"), providing, subject to the terms and conditions thereof, for
the making of extensions of credit to the Borrowers. Prior to the date hereof,
the Term Loans under (and as defined in) the Existing Credit Agreement have been
paid in full and the Term Loan Commitments under (and as defined in) the
Existing Credit Agreement have been cancelled. The parties hereto now wish to
amend the Existing Credit Agreement in certain respects and, in that connection,
wish to amend and restate the Existing Credit Agreement in its entirety, it
being the intention of the parties hereto that the Revolving Credit Loans (if
any) outstanding under the Existing Credit Agreement on the Restatement
Effective Date shall continue and remain outstanding and not be repaid on the
Restatement Effective Date, but shall be assigned and reallocated among the
Lenders as provided in Section 2.01 hereof.
(2) Each of the Obligors expects to derive benefit, directly
or indirectly, from the credit extended to the Borrowers hereunder, both in its
separate capacity and as a member of the Commonwealth Group, since the
successful operation of each of such Obligors will be dependent on the continued
successful performance of the functions of such Commonwealth Group as a whole.
Accordingly, the parties hereto hereby agree that the Existing
Credit Agreement shall, as of the date hereof (but subject to the satisfaction
of the conditions precedent specified in Section 7.01 hereof), be amended and
restated in its entirety as follows:
Section 1. Definitions and Accounting Matters.
1.01 Certain Defined Terms.01 Certain Defined Terms. As used
herein, the following terms shall have the following meanings (all terms defined
in this Section 1.01 or in other provisions of this Agreement in the singular to
have the correlative meanings when used in the plural and vice versa):
"Administrative Agent" shall have the meaning assigned to such
term in the recital of parties to this Agreement.
"Administrative Questionnaire" shall mean an administrative
questionnaire in a form supplied by the Administrative Agent.
"Affiliate" shall mean any Person directly or indirectly
controlling, directly or indirectly controlled by or under direct or indirect
common control with the Parent. As used in this definition, "control"
(including, with its correlative meanings, "controlling", "controlled by" and
"under common control with") shall mean possession, directly or indirectly, of
power to direct or cause the direction of management or policies (whether
through ownership of securities or partnership or other ownership interests, by
contract or otherwise), provided that, in any event, any Person that owns
directly or indirectly securities having 10% or more of the voting power for the
election of directors or other governing body of a corporation or 10% or more of
the partnership or other ownership interests of any other Person (other than as
a limited partner of such other Person) will be deemed to control such
corporation or other Person. Notwithstanding the foregoing, (a) no individual
shall be an Affiliate solely by reason of his or her being a director, officer
or employee of the Parent or any of its Subsidiaries and (b) none of the Wholly
Owned Subsidiaries of the Parent shall be Affiliates.
"Alflex" shall have the meaning assigned to such term in the
recital of parties to this Agreement.
"Aluminum Business" shall mean the business of developing,
manufacturing, producing, marketing, transporting and selling aluminum, aluminum
products and electrical wiring products (including, without limitation, flexible
conduit and pre-wired armored cable) and any other business incidental thereto.
"Applicable Facility Fee Percentage" shall mean, at any time,
the percentage set forth in the schedule below opposite the Applicable Pricing
Level in effect at such time:
=============================== =============================================
Applicable Applicable Facility
Pricing Level Fee Percentage
=============================== =============================================
1 0.175%
=============================== =============================================
2 0.200%
=============================== =============================================
3 0.225%
=============================== =============================================
4 0.250%
=============================== =============================================
"Applicable Lending Office" shall mean, for each Lender and
for each Type of Loan, the lending office of such Lender (or of an affiliate of
such Lender) designated for such Type of Loan in the Administrative
Questionnaire of such Lender or such other lending office of such Lender (or of
an affiliate of such Lender) as such Lender may from time to time specify to the
Administrative Agent and the Parent as the office by which its Loans of such
Type are to be made and maintained.
"Applicable Letter of Credit Percentage" shall mean, at any
time, the Applicable Margin in effect at such time with respect to Revolving
Credit Loans that are Eurodollar Loans.
"Applicable Margin" shall mean, at any time, for each Type of
Loans set forth below, the percentage set forth below such Type opposite the
Applicable Pricing Level in effect at such time:
=============================------------------------------- ==================
Applicable
Pricing Level Base Rate Loans Eurodollar Loans
=============================-------------------------------- =================
1 0.00% 0.325%
===================================== -------------------------------- ========
2 0.00% 0.425%
===================================== -------------------------------- ========
3 0.00% 0.525%
===================================== ================================ ========
4 0.00% 0.750%
===================================== ================================ ========
The Applicable Margin for Swingline Loans at any time shall be the Applicable
Margin in effect for Revolving Credit Loans that are Base Rate Loans at such
time.
"Applicable Pricing Level" in effect at any time shall be
deemed to be the level specified in the schedule below opposite the Total
Leverage Ratio in effect on September 30, 1997 (as certified by the Company and
set forth in a certificate of a Responsible Officer delivered pursuant to
Section 7.01(g) hereof); provided that if the Total Leverage Ratio as at the
last day of any fiscal quarter of the Parent ending on or after September 30,
1997 shall fall within any of the ranges set forth in the schedule below then,
subject to the delivery to the Administrative Agent of a certificate of a
Responsible Officer of the Parent pursuant to the last paragraph of Section 9.01
demonstrating such fact prior to the end of the next succeeding fiscal quarter,
the Applicable Pricing Level shall be changed to the Applicable Pricing Level
set forth opposite such range in such schedule during the period commencing on
the Quarterly Date on or immediately following the date of receipt of such
certificate to but not including the next succeeding Quarterly Date thereafter:
===================================== ========================================
Applicable
Pricing Level Total Leverage Ratio
===================================== ========================================
1 Less than 2.00 to 1.00
===================================== ========================================
2 Greater than or equal to 2.00 to 1.00 and
less than 2.50 to 1.00
===================================== ========================================
3 Greater than or equal to 2.50 to 1.00 and
less than 3.00 to 1.00
===================================== ========================================
4 Greater than or equal to 3.00
===================================== ========================================
"Bankruptcy Code" shall mean the Federal Bankruptcy Code of
1978, as amended from time to time.
"Base Rate" shall mean, for any day, a rate per annum equal to
the higher of (a) the Federal Funds Rate for such day plus 1/2 of 1% and (b) the
Prime Rate for such day. Each change in any interest rate provided for herein
based upon the Base Rate resulting from a change in the Base Rate shall take
effect at the time of such change in the Base Rate.
"Base Rate Loans" shall mean Loans that bear interest at rates
based upon the Base Rate.
"Basle Accord" shall mean the proposals for risk-based capital
framework described by the Basle Committee on Banking Regulations and
Supervisory Practices in its paper entitled "International Convergence of
Capital Measurement and Capital Standards" dated July 1988, as amended, modified
and supplemented and in effect from time to time or any replacement thereof.
"Borrower" shall mean each Revolving Credit Borrower. When
reference is made in this Agreement or in any other Credit Document to the
"relevant" Borrower in connection with any Facility, such reference shall be
deemed to refer to each of CAC, Alflex and CACI.
"Business Day" shall mean any day (a) on which commercial
banks are not authorized or required to close in New York City and (b) if such
day relates to a borrowing of, a payment or prepayment of principal of or
interest on, a Conversion of or into, or an Interest Period for, a Eurodollar
Loan or a notice by a Borrower with respect to any such borrowing, payment,
prepayment, Conversion or Interest Period, that is also a day on which dealings
in Dollar deposits are carried out in the London interbank market.
"CAC" shall have the meaning assigned to such term in the
recital of parties to this Agreement.
"CACI" shall have the meaning assigned to such term in the
recital of parties to this Agreement.
"Calculation Period" shall mean, at any date, the period of
four consecutive fiscal quarters of the Parent ending on or most recently ended
prior to such date.
"Capital Expenditures" shall mean, for any period,
expenditures (including, without limitation, the aggregate amount of Capital
Lease Obligations paid or payable during such period) made by the Parent or any
of its Subsidiaries to acquire or construct fixed assets, plant and equipment
(including renewals, improvements and replacements, but excluding repairs)
during such period computed in accordance with GAAP.
"Capital Lease Obligations" shall mean, for any Person, all
obligations of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) Property to the extent such
obligations are required to be classified and accounted for as a capital lease
on a balance sheet of such Person under GAAP, and, for purposes of this
Agreement, the amount of such obligations shall be the capitalized amount
thereof, determined in accordance with GAAP.
"Capital Stock" shall mean, with respect to any Person, any
and all shares, interests, participations or other equivalents (however
designated, whether voting or non-voting) of such Person's capital stock or
other ownership interests, including, without limitation, all common stock and
all preferred stock.
"Casualty Event" shall mean, with respect to any Property of
any Person, any loss of or damage to, or any condemnation or other taking of,
such Property for which such Person or any of its Subsidiaries receives
insurance proceeds, or proceeds of a condemnation award or other compensation.
"Change of Control" shall mean:
(a) that any "person" or "group" (as such terms are used for
purposes of Sections 13(d) and 14(d) of the Exchange Act, whether or
not applicable, except that for purposes of this paragraph (b) such
person or group shall be deemed to have "beneficial ownership" of all
shares that such person or group has the right to acquire, whether such
right is exercisable immediately or only after the passage of time), is
or becomes the "beneficial owner" (as such term is used in Rule 13d-3
promulgated pursuant to the Exchange Act), directly or indirectly, of
more than 25% of the aggregate voting power of all Voting Stock of the
Parent; or
(b) that individuals who on the date hereof constituted the
Board of Directors of the Parent (together with any new directors whose
election by such Board or whose nomination for election by the
stockholders of the Parent was approved by a majority of the directors
then still in office who were either directors on the date hereof or
whose election or nomination for election was previously so approved)
cease for any reason to constitute a majority of the Board of Directors
of the Parent; or
(c) that the Parent shall be required pursuant to the
provisions of the Senior Subordinated Debt Documents (or any other
agreement or instrument relating to or providing for any other
Subordinated Indebtedness) to redeem or repurchase, or make an offer to
redeem or repurchase, all or any portion of the Senior Subordinated
Debt (or such Subordinated Indebtedness, as the case may be) as a
result of a change of control (however defined).
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"Collateral Account" shall have the meaning assigned to such
term in Section 4.01 of the Pledge and Security Agreement.
"Commission" shall mean the Securities and Exchange
Commission, or any regulatory body that succeeds to the functions thereof.
"Commitments" shall mean the Revolving Credit Commitments. Where the
context requires, the term "Commitments" shall include
reference to the Swingline Commitment.
"Commitment Termination Date" shall mean the Quarterly Date falling on
or nearest to September 1, 2002.
"Commodity Hedge Agreements" shall have the meaning assigned to such
term in Section 9.18 hereof.
"Commonwealth Group" shall mean the Parent and each of its
Subsidiaries, and a "Member" of the Commonwealth Group shall mean, individually,
the Parent and each of its Subsidiaries.
"Continue", "Continuation" and "Continued" shall refer to the
continuation pursuant to Section 2.09 hereof of a Eurodollar Loan from one
Interest Period to the next Interest Period.
"Convert", "Conversion" and "Converted" shall refer to a
conversion pursuant to Section 2.09 hereof of one Type of Loans into another
Type of Loans, which may be accompanied by the transfer by a Lender (at its sole
discretion) of a Loan from one Applicable Lending Office to another.
"Credit Documents" shall mean, collectively, this Agreement,
the Notes, the Letter of Credit Documents and the Security Documents.
"Debt Issuance" shall mean any incurrence or other issuance of
Indebtedness by the Parent or any of its Subsidiaries after the date hereof,
other than any Specified Debt Issuance.
"Default" shall mean an Event of Default or an event that with
notice or lapse of time or both would become an Event of Default.
"Disposition" shall mean any sale, assignment, transfer or
other disposition of any Property (whether now owned or hereafter acquired) by
the Parent or any of its Subsidiaries to any other Person excluding (a) any
sale, assignment, transfer or other disposition of any Property sold or disposed
of in the ordinary course of business and on ordinary business terms and (b)
Receivables Sales.
"Dividend Payment" shall mean dividends (in cash, Property or
obligations) on, or other payments or distributions on account of, or the
setting apart of money for a sinking or other analogous fund for, or the
purchase, redemption, retirement or other acquisition of, any shares of any
class of stock of the Parent or any of its Subsidiaries or of any warrants,
options or other rights to acquire the same (or to make any payments to any
Person, such as "phantom stock" payments, where the amount thereof is calculated
with reference to the fair market or equity value of the Parent or any of its
Subsidiaries), but excluding dividends payable solely in shares of Capital Stock
of the Parent (or in options, warrants and other rights to acquire such shares
of Capital Stock).
"Dollars" and "$" shall mean lawful money of the
United States of America.
"EBITDA" shall mean, for any period, the sum, for the Parent
and its Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), of the following: (a) net income for such period plus (b)
the amount of Total Interest Expense for such period plus (c) income and other
taxes paid during such period plus (d) depreciation and amortization for such
period plus (e) extraordinary losses for such period minus (f) extraordinary
gains for such period, minus (g) interest received during such period.
"Employee Stock Repurchases" shall mean Dividend Payments
constituting the purchase, redemption, retirement or other acquisition of shares
of Capital Stock of the Parent, of options on any such shares or related stock
appreciation rights or similar securities, held by officers, directors or
employees or former directors, officers or employees (or their transferees,
estates or beneficiaries under their estates), upon death, disability,
retirement, severance or termination of employment or service or pursuant to any
agreement under which such shares of Capital Stock or related rights were
issued.
"Environmental Claim" shall mean, with respect to any Person,
any written notice, claim, demand or other communication (collectively, a
"claim") by any other Person alleging or asserting such Person's liability for
investigatory costs, cleanup costs, governmental response costs, damages to
natural resources or other Property, personal injuries, fines or penalties
arising out of, based on or resulting from (i) the presence, or Release into the
environment, of any Hazardous Material at any location, whether or not owned by
such Person, or (ii) circumstances forming the basis of any violation, or
alleged violation, of any Environmental Law. The term "Environmental Claim"
shall include, without limitation, any claim by any governmental authority for
enforcement, cleanup, removal, response, remedial or other actions or damages
pursuant to any applicable Environmental Law, and any claim by any third party
seeking damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from the presence of Hazardous Materials or arising
from alleged injury or threat of injury to health, safety or the environment.
"Environmental Laws" shall mean any and all present and future
Federal, state, local and foreign laws, rules or regulations, and any orders or
decrees, in each case as now or hereafter in effect, relating to the regulation
or protection of human health, safety or the environment or to emissions,
discharges, releases or threatened releases of pollutants, contaminants,
chemicals or toxic or hazardous substances or wastes into the environment,
including, without limitation, ambient air, soil, surface water, ground water,
wetlands, land or subsurface strata, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, chemicals or toxic or hazardous substances
or wastes.
"Equity Issuance" shall mean (a) any issuance or sale by the
Parent or any of its Subsidiaries of (i) any of its Capital Stock, (ii) any
warrants or options exercisable in respect of its Capital Stock (other than any
warrants or options issued to directors, officers or employees of the Parent or
any of its Subsidiaries pursuant to employee benefit or other
compensation-related plans established in the ordinary course of business and
any Capital Stock of the Parent or such Subsidiary issued upon the exercise of
such warrants or options) or (iii) any other security or instrument representing
an equity interest (or the right to obtain any equity interest) in the Parent or
any of its Subsidiaries or (b) the receipt by the Parent or any of its
Subsidiaries of any capital contribution (whether or not evidenced by any equity
security issued by the recipient of such contribution); provided that Equity
Issuance shall not include (x) any such issuance or sale by any Subsidiary of
the Parent to the Parent or any Wholly Owned Subsidiary of the Parent or (y) any
capital contribution by the Parent or any Wholly Owned Subsidiary of the Parent
to any Subsidiary of the Parent.
"Equity Rights" shall mean, with respect to any Person, any
subscriptions, options, warrants, commitments, preemptive rights or agreements
of any kind (including, without limitation, any stockholders' or voting trust
agreements) for the issuance, sale, registration or voting of, or securities
convertible into, any additional shares of Capital Stock of any class, or
partnership or other ownership interests of any type in, such Person.
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended from time to time.
"ERISA Affiliate" shall mean any corporation or trade or
business that is a member of any group of organizations (i) described in Section
414(b) or (c) of the Code of which the Parent is a member and (ii) solely for
purposes of potential liability under Section 302(c)(11) of ERISA and Section
412(c)(11) of the Code and the lien created under Section 302(f) of ERISA and
Section 412(n) of the Code, described in Section 414(m) or (o) of the Code of
which the Parent is a member.
"Eurodollar Base Rate" shall mean, with respect to any
Eurodollar Loan for any Interest Period therefor:
(a) the rate per annum (rounded upwards, if necessary, to the
nearest 1/16 of 1%) reported on the date two Business Days prior to the
first day of such Interest Period on Telerate Access Service Page 3750
(British Bankers Association Settlement Rate) as the London Interbank
Offered Rate for Dollar deposits having a term comparable to such
Interest Period and in an amount of $1,000,000 or more; or
(b) if said Page shall cease to be publicly available or if
the information contained on said Page, in the sole judgment of the
Administrative Agent, shall cease to accurately reflect such London
Interbank Offered Rate, the Eurodollar Base Rate shall mean the
arithmetic mean (rounded upwards, if necessary, to the nearest 1/16 of
1%), as determined by the Administrative Agent, of the rates per annum
quoted by the respective Reference Lenders at approximately 11:00 a.m.
London time (or as soon thereafter as practicable) on the date two
Business Days prior to the first day of such Interest Period for the
offering by the respective Reference Lenders to leading banks in the
London interbank market of Dollar deposits having a term comparable to
such Interest Period and in an amount comparable to the principal
amount of the Eurodollar Loan to be made by the respective Reference
Lenders for such Interest Period (and, if any Reference Lender is not
participating in any Eurodollar Loans during any Interest Period
therefor, the Eurodollar Base Rate for such Loans for such Interest
Period shall be determined by reference to the amount of such Loans
that such Reference Lender would have made or had outstanding had it
been participating in such Loan during such Interest Period).
"Eurodollar Loans" shall mean Loans that bear interest at
rates based on rates referred to in the definition of "Eurodollar Base Rate" in
this Section 1.01.
"Eurodollar Rate" shall mean, for any Eurodollar Loan for any
Interest Period therefor, a rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) determined by the Administrative Agent to be equal to
the Eurodollar Base Rate for such Loan for such Interest Period divided by 1
minus the Reserve Requirement (if any) for such Loan for such Interest Period.
"Events of Default" shall have the meaning assigned to such
term in Section 10 hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended from time to time.
"Existing Lenders" shall mean each of the lenders party to the
Existing Credit Agreement immediately prior to the Restatement Effective Date.
"Facility" shall mean the Revolving Credit Facility.
Where the context requires, the term "Facility" shall include reference to the
Swingline Facility.
"Facility Fees" shall have the meaning assigned to such term
in Section 2.05(a) hereof.
"Federal Funds Rate" shall mean, for any day, the rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day, provided that (a) if the day for which such rate is to
be determined is not a Business Day, the Federal Funds Rate for such day shall
be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day and (b) if such rate is not so
published for any Business Day, the Federal Funds Rate for such Business Day
shall be the average rate charged to NatWest on such Business Day on such
transactions as determined by the Administrative Agent.
"Fixed Charges Ratio" shall mean, as at any date, the ratio of
(a) (i) EBITDA for the then-current Calculation Period to (b) the sum of (i)
Total Interest Expense for such period plus (ii) taxes paid during such period
plus (iii) $18,500,000.
"GAAP" shall mean generally accepted accounting principles
applied on a basis consistent with those that, in accordance with the last
sentence of Section 1.02(a) hereof, are to be used in making the calculations
for purposes of determining compliance with this Agreement.
"General Guaranteed Obligations" shall have the meaning
assigned to such term in Section 6.01(a) hereof.
"Guarantee" shall mean a guarantee, an endorsement, a
contingent agreement to purchase or to furnish funds for the payment or
maintenance of, or otherwise to be or become contingently liable under or with
respect to, the Indebtedness, other obligations, net worth, working capital or
earnings of any Person, or a guarantee of the payment of dividends or other
distributions upon the stock or equity interests of any Person, or an agreement
to purchase, sell or lease (as lessee or lessor) Property, products, materials,
supplies or services primarily for the purpose of enabling a debtor to make
payment of such debtor's obligations or an agreement to assure a creditor
against loss, and including, without limitation, causing a bank or other
financial institution to issue a letter of credit or other similar instrument
for the benefit of another Person, but excluding endorsements for collection or
deposit in the ordinary course of business. The terms "Guarantee" and
"Guaranteed" used as a verb shall have a correlative meaning.
"Guaranteed Obligations" shall have the meaning assigned to
such term in Section 6.01(b) hereof.
"Guarantors" shall mean (a) with respect to the General
Guaranteed Obligations, the Parent, Holdings and the Subsidiary Guarantors and
(b) with respect to the Joint Obligations, the Revolving Credit Borrowers.
"Hazardous Material" shall mean, collectively, (a) any
petroleum or petroleum products, flammable materials, explosives, radioactive
materials, asbestos, urea formaldehyde foam insulation, and transformers or
other equipment that contain polychlorinated biphenyls ("PCB's"), (b) any
chemicals or other materials or substances that are now or hereafter become
defined as or included in the definition of "hazardous substances", "hazardous
wastes", "hazardous materials", "extremely hazardous wastes", "restricted
hazardous wastes", "toxic substances", "toxic pollutants", "contaminants",
"pollutants" or words of similar import under any Environmental Law and (c) any
other chemical or other material or substance, exposure to which is now or
hereafter prohibited, limited or regulated under any Environmental Law.
"Holdings" shall have the meaning assigned to such term in the
recital of parties to this Agreement.
"Immaterial Subsidiary" shall mean, as at any date:
(a) Commonal Corp., provided that Commonal Corp. shall cease
to be an "Immaterial Subsidiary" if at any time it shall have (i) at
least 5% of the total consolidated assets of the Parent and its
Subsidiaries (determined as of the last day of the fiscal year of the
Parent ending on or most recently ended prior to such date) or (ii) at
least 5% of the consolidated revenues of the Parent and its
Subsidiaries for the fiscal year of the Parent ending on or most
recently ended prior to such date;
(b) each other Subsidiary of the Parent that, as at the end of
and for the quarterly accounting period ending on or most recently
ended prior to such date, shall have less than $500,000 in assets and
less than $500,000 in gross revenues; and
(c) any Subsidiary described in Section 9.08(h) hereof.
"Indebtedness" shall mean, for any Person (without duplication):
(a) obligations created, issued or incurred by such Person for
borrowed money (whether by loan, the issuance and sale of debt
securities or the sale of Property to another Person subject to an
understanding or agreement, contingent or otherwise, to repurchase such
Property from such Person);
(b) obligations of such Person to pay the deferred purchase or
acquisition price of Property or services, other than trade accounts
payable (other than for borrowed money) arising, and accrued
liabilities incurred, in the ordinary course of business so long as
such trade accounts payable are payable within 90 days of the date the
respective goods are delivered or the respective services are rendered;
(c) Indebtedness of others secured by a Lien on the Property
of such Person, whether or not the respective indebtedness so secured
has been assumed by such Person;
(d) obligations of such Person in respect of letters of credit
or similar instruments issued or accepted by banks and other financial
institutions for account of such Person;
(e) Capital Lease Obligations of such Person; and
(f) Indebtedness of others Guaranteed by such Person.
"Interest Period" shall mean, with respect to any Eurodollar
Loan, each period commencing on the date such Eurodollar Loan is made or
Converted from a Base Rate Loan or (in the event of a Continuation) the last day
of the next preceding Interest Period for such Loan and ending on the
numerically corresponding day in the first, second, third or sixth calendar
month thereafter, as the relevant Borrower may select as provided in Section
4.05 hereof, except that each Interest Period that commences on the last
Business Day of a calendar month (or on any day for which there is no
numerically corresponding day in the appropriate subsequent calendar month)
shall end on the last Business Day of the appropriate subsequent calendar month.
Notwithstanding the foregoing: (i) if any Interest Period for any Loan under the
Revolving Credit Facility would otherwise end after the Commitment Termination
Date, such Interest Period shall end on the Commitment Termination Date; (ii)
each Interest Period that would otherwise end on a day that is not a Business
Day shall end on the next succeeding Business Day (or, if such next succeeding
Business Day falls in the next succeeding calendar month, on the next preceding
Business Day); and (iii) notwithstanding clause (i) above, no Interest Period
shall have a duration of less than one month and, if the Interest Period for any
Eurodollar Loan would otherwise be a shorter period, such Loan shall not be
available hereunder for such period.
"Interest Rate Protection Agreement" shall mean, for any
Person, an interest rate swap, cap or collar agreement or similar arrangement
between such Person and one or more financial institutions providing for the
transfer or mitigation of interest risks either generally or under specific
contingencies.
"Investment" shall mean, for any Person: (a) the acquisition
(whether for cash, Property, services or securities or otherwise) of Capital
Stock, bonds, notes, debentures, partnership or other ownership interests or
other securities of any other Person or any agreement to make any such
acquisition (including, without limitation, any "short sale" or any sale of any
securities at a time when such securities are not owned by the Person entering
into such sale); (b) the making of any deposit with, or advance, loan or other
extension of credit to, any other Person (including the purchase of Property
from another Person subject to an understanding or agreement, contingent or
otherwise, to resell such Property to such Person), but excluding any such
advance, loan or extension of credit having a term not exceeding 90 days arising
in connection with the sale of inventory or supplies by such Person in the
ordinary course of business; (c) the entering into of any Guarantee of, or other
contingent obligation with respect to, Indebtedness or other liability of any
other Person and (without duplication) any amount committed to be advanced, lent
or extended to such Person; (d) the entering into of any Interest Rate
Protection Agreement; or (e) the entering into of any Commodity Hedge Agreement.
"Issuing Bank" shall mean NatWest and each other Lender
requested by the Parent and approved by the Administrative Agent to be an
"Issuing Bank" hereunder, as the issuers of Letters of Credit under Section 2.03
hereof, together with their respective successors and assigns in such capacity.
"Joint Obligations" shall have the meaning assigned to such
term in Section 6.01(b) hereof.
"Lender" shall have the meaning assigned to such term in the
recital of parties to this Agreement. When reference is made in this Agreement
or any other Credit Document to any "relevant" Lender in connection with any
Facility, such reference shall be deemed to refer to a Lender that has a
Commitment, outstanding Loans or outstanding Notes under such Facility.
"Letter of Credit Documents" shall mean, with respect to any
Letter of Credit, collectively, any application therefor and any other
agreements, instruments, guarantees or other documents (whether general in
application or applicable only to such Letter of Credit) governing or providing
for (a) the rights and obligations of the parties concerned or at risk with
respect to such Letter of Credit or (b) any collateral security for any of such
obligations, each as the same may be modified and supplemented and in effect
from time to time.
"Letter of Credit Interest" shall mean, for each Revolving
Credit Lender, such Lender's participation interest (or, in the case of the
relevant Issuing Bank, such Issuing Bank's retained interest) in an Issuing
Bank's liability under Letters of Credit issued by such Issuing Bank and such
Lender's rights and interests in Reimbursement Obligations and fees, interest
and other amounts payable in connection with Letters of Credit and Reimbursement
Obligations.
"Letter of Credit Liability" shall mean, without duplication,
at any time and in respect of any Letter of Credit, the sum of (a) the undrawn
face amount of such Letter of Credit plus (b) the aggregate unpaid principal
amount of all Reimbursement Obligations at such time due and payable in respect
of all drawings made under such Letter of Credit. For purposes of this
Agreement, a Revolving Credit Lender (other than the Issuing Bank that issued
the relevant Letter of Credit) shall be deemed to hold a Letter of Credit
Liability in an amount equal to its participation interest in the related Letter
of Credit under Section 2.03 hereof, and such Issuing Bank shall be deemed to
hold a Letter of Credit Liability in an amount equal to its retained interest in
the related Letter of Credit after giving effect to the acquisition by the
Revolving Credit Lenders other than such Issuing Bank of their participation
interests under said Section 2.03.
"Letters of Credit" shall have the meaning assigned to such
term in Section 2.03(a) hereof.
"Lien" shall mean, with respect to any Property, any mortgage,
lien, pledge, charge, security interest or encumbrance of any kind in respect of
such Property. For purposes of this Agreement and the other Credit Documents, a
Person shall be deemed to own subject to a Lien any Property that it has
acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention agreement
(other than an operating lease) relating to such Property.
"Loans" shall mean the Revolving Credit Loans. Where the
context requires, the term "Loans" shall include reference to Swingline
Loans.
"Majority Lenders" shall mean Lenders holding at least 51% of
the sum of (i) the aggregate unused Commitments, (ii) the aggregate unpaid
principal amount of the Loans and (iii) the aggregate amount of all Letter of
Credit Liabilities.
"Margin Stock" shall mean "margin stock" within the meaning of
Regulations G, T, U and X.
"Material Adverse Effect" shall mean a material adverse effect
on (a) the business, properties, assets, operations, conditions (financial or
otherwise), or prospects of the Parent and its Subsidiaries taken as a whole,
(b) the ability of any Obligor to perform its obligations under any of the
Credit Documents to which it is a party, (c) the validity or enforceability of
any of the Credit Documents, (d) the rights and remedies of the Lenders and the
Administrative Agent under any of the Credit Documents or (e) the timely payment
of the principal of or interest on the Loans or the Reimbursement Obligations or
other amounts payable in connection therewith.
"Moody's" shall mean Moody's Investors Service, Inc., or any
successor thereto.
"Mortgages" shall mean, collectively, one or more Instruments
of Mortgage, Deed of Trust, Assignment of Rents, Security Agreement and Fixture
Filing executed by one or more Obligors pursuant to the Existing Credit
Agreement or the Original Credit Agreement or pursuant to Section 9.16(a) or
9.19 hereof, in each case substantially in the form of Exhibit F-1 or F-2 to the
Original Credit Agreement, as the case may be, and covering the respective
Properties and leasehold interest identified in Schedules I and II thereto, as
said Instruments of Mortgage, Deed of Trust, Assignment of Rents, Security
Agreement and Fixture Filing shall be modified and supplemented and in effect
from time to time.
"Multiemployer Plan" shall mean a multiemployer plan defined
as such in Section 3(37) of ERISA to which contributions are being made by the
Parent or any ERISA Affiliate and that is covered by Title IV of ERISA.
"NatWest" shall mean National Westminster Bank Plc.
"Net Available Proceeds" shall mean:
(i) in the case of any Disposition, the amount of Net Cash
Payments received in connection with such Disposition;
(ii) in the case of any Casualty Event, the aggregate amount
of proceeds of insurance, condemnation awards and other compensation
received by the Parent and its Subsidiaries in respect of such Casualty
Event net of (A) reasonable expenses incurred by the Parent and its
Subsidiaries in connection therewith and (B) contractually required
repayments of Indebtedness to the extent secured by a Lien on such
Property and any income and transfer taxes payable by the Parent or any
of its Subsidiaries in respect of such Casualty Event;
(iii) in the case of any Equity Issuance or Debt Issuance, the
aggregate amount of all cash received by the Parent and its
Subsidiaries in respect thereof net of reasonable expenses incurred by
the Parent and its Subsidiaries in connection therewith; and
(iv) in the case of any Receivables Sale, the aggregate amount
of all cash received by the Parent and its Subsidiaries in connection
with such Receivables Sale net of reasonable expenses incurred by the
Parent and its Subsidiaries in connection therewith.
"Net Cash Payments" shall mean, with respect to any
Disposition, the aggregate amount of all cash payments (including, without
limitation, all cash payments received by way of deferred payment pursuant to a
note or installment receivable or otherwise, but only as and when received)
received by the Parent and its Subsidiaries directly or indirectly in connection
with such Disposition; provided that (a) Net Cash Payments shall be net of (i)
the amount of any legal, title and recording tax expenses, commissions and other
fees and expenses paid or payable by the Parent and its Subsidiaries in
connection with such Disposition and (ii) any Federal, state and local income or
other taxes estimated to be payable by the Parent and its Subsidiaries as a
result of such Disposition (but only to the extent that such estimated taxes are
in fact paid to the relevant Federal, state or local governmental authority
within six months of the date of such Disposition) and (b) Net Cash Payments
shall be net of any repayments by the Parent or any of its Subsidiaries of
Indebtedness to the extent that (i) such Indebtedness is secured by a Lien on
the Property that is the subject of such Disposition and (ii) the transferee of
(or holder of a Lien on) such Property requires that such Indebtedness be repaid
as a condition to the purchase of such Property.
"Notes" shall mean Revolving Credit Notes. Where the context
requires, the term "Notes" shall include reference to the Swingline Note.
"Obligors" shall mean, collectively, the Borrowers and the
Guarantors.
"Other Event of Default" shall mean an Event of Default other
than under Section 10(a) or 9.10 hereof.
"Parent" shall have the meaning assigned to such term in the
recital of parties to this Agreement.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or
any entity succeeding to any or all of its functions under ERISA.
"Permitted Investments" shall mean:
(a) direct obligations of the United States of America, or of
any agency thereof, or obligations guaranteed as to principal and
interest by the United States of America, or of any agency thereof, in
either case maturing not more than 90 days from the date of acquisition
thereof;
(b) time deposits or certificates of deposit issued by any
bank or trust company organized under the laws of the United States of
America or any state thereof whose outstanding senior long-term debt
securities are rated either A- or better by Standard & Poor's or A3 or
better by Moody's, maturing not more than 90 days from the date of
acquisition thereof;
(c) commercial paper rated A-1 or better or P-1 by Standard &
Poor's or Moody's, respectively, maturing not more than 90 days from
the date of acquisition thereof;
(d) repurchase obligations with a term of not more than 30
days for underlying securities of the types specified in paragraph (a)
of this definition with any bank or trust company meeting the
qualifications specified in paragraph (b) of this definition; and
(e) Investments in money market mutual funds substantially all
of the assets of which are cash or Permitted Investments specified in
paragraphs (a) through (d) of this definition;
in each case so long as the same (i) provide for the payment of principal and
interest (and not principal alone or interest alone) and (ii) are not subject to
any contingency regarding the payment of principal or interest.
"Permitted Receivables Financing" shall mean a transaction or
series of transactions (including amendments, supplements, extensions, renewals,
replacements, refinancings or modifications thereof) pursuant to which a
Securitization Subsidiary purchases Receivables and Related Assets from the
Parent or any of its Subsidiaries and finances such Receivables and Related
Assets through the issuance of Indebtedness or equity interests or through the
sale of the Receivables and Related Assets or a fractional undivided interest in
the Receivables and Related Assets; provided that (a) the Board of Directors of
the Parent shall have determined in good faith that such Permitted Receivables
Financing is economically fair and reasonable to the Parent and such
Securitization Subsidiary, (b) all sales of Receivables and Related Assets to or
by such Securitization Subsidiary are made at fair market value (as determined
in good faith by the Board of Directors of the Parent), (c) the interest rate
applicable to such financing shall be a market rate of interest as of the time
such financing is entered into, (d) the covenants, termination events and other
provisions thereof shall be market terms (as determined in good faith by the
Board of Directors of the Parent), (e) no portion of the Indebtedness of a
Securitization Subsidiary is Guaranteed by or is recourse to the Parent or any
of its other Subsidiaries (other than recourse for customary representations,
warranties, covenants and indemnities, none of which shall related to the
collectibility of the Receivables and Related Assets) and (f) neither the Parent
nor any of its other Subsidiaries has any obligation to maintain or preserve
such Securitization Subsidiary's financial condition.
"Permitted Reinvestment Capital Expenditures" shall mean
Capital Expenditures made with the Net Available Proceeds of Casualty Events and
Dispositions that the Parent or any of its Subsidiaries is reinvesting in
replacement assets in accordance with Section 9.05(c) hereof.
"Person" shall mean any individual, corporation, company,
voluntary association, partnership, limited liability company, joint venture,
trust, unincorporated organization or government (or any agency, instrumentality
or political subdivision thereof).
"Placement Agreement" shall mean the Placement Agreement dated
as of September 20, 1996 pursuant to which the purchasers of the Senior
Subordinated Debt have agreed to purchase and re-offer the same.
"Plan" shall mean an employee benefit or other plan
established or maintained by the Parent or any ERISA Affiliate and that is
covered by Title IV of ERISA, other than a Multiemployer Plan.
"Pledge and Security Agreement" shall mean the Amended and
Restated Pledge and Security Agreement dated as of November 29, 1996 between the
Obligors and the Administrative Agent, as amended by Amendment No. 1 thereto
dated as of the date hereof and as thereafter modified and supplemented and in
effect from time to time.
"Post-Default Rate" shall mean a rate per annum equal to 2.0%
plus the Base Rate as in effect from time to time plus the Applicable Margin for
Base Rate Loans, provided that the "Post-Default Rate" with respect to principal
of a Eurodollar Loan shall be 2.0% plus the interest rate for such Loan as
provided in Section 3.02(b) hereof.
"Prime Rate" shall mean, at any time, the Bank Prime Loan rate
then most recently published by the Board of Governors of the Federal Reserve
System in Federal Reserve Statistical Release H.15(519) entitled "Selected
Interest Rates", or any successor publication.
"Pro Forma Leverage Ratio" shall mean, as at any date with
respect to any Stock Repurchase or any repurchase or redemption of Subordinated
Indebtedness, the ratio of (a) Total Indebtedness as at such date to (b) EBITDA
for the Calculation Period, calculated on a pro forma basis as if such Stock
Repurchase or such repurchase or redemption of Subordinated Indebtedness had
occurred on the first day of such Calculation Period.
"Pro Forma Leverage Ratio Amount" shall mean, with respect to
any period specified below, the ratio set forth opposite such period:
Period Ratio
From and including
the Restatement Effective Date
to and including
December 30, 1998 3.00 to 1.00
From and including
December 31, 1998
to and including
December 30, 1999 2.75 to 1.00
From and including
December 31, 1999
to and including
December 30, 2000 2.50 to 1.00
From and including
December 31, 2000
to and including
December 30, 2001 2.25 to 1.00
From December 31, 2001
and at all times thereafter 2.00 to 1.00
"Property" shall mean any right or interest in or to property
of any kind whatsoever, whether real, personal or mixed and whether tangible or
intangible.
"Quarterly Dates" shall mean the first Business Day of March,
June, September and December in each year, the first of which shall be the first
such day after the date hereof.
"Quarterly Financial Statements" shall mean the financial
statements furnished to the Lenders under Section 9.01(a) hereof.
"Receivables and Related Assets" shall mean accounts
receivable and instruments, chattel paper, obligations, general intangibles and
other similar assets, in each case relating to such receivables, including
interests in merchandise or goods, the sale or lease of which gave rise to such
receivable, related contractual rights, guarantees, insurance proceeds,
collections, other related assets and proceeds of all of the foregoing.
"Receivables Sale" shall mean any sale, transfer or other
disposition of Receivables and Related Assets by the Parent or any of its
Subsidiaries, but excluding sales or transfers of Receivables and Related Assets
for purposes of collection in the ordinary course of business and consistent
with past practice.
"Reference Lenders" shall mean NatWest and such other Lender
or Lenders as the Administrative Agent and the Parent shall agree (or their
respective Applicable Lending Offices, as the case may be).
"Regulation A", "Regulation D", "Regulation G", "Regulation
T", "Regulation U" and "Regulation X" shall mean, respectively, Regulations A,
D, G, T, U and X of the Board of Governors of the Federal Reserve System (or any
successor), as the same may be modified and supplemented and in effect from time
to time.
"Regulatory Change" shall mean, with respect to any Lender,
any change after the date hereof in Federal, state or foreign law or regulations
(including, without limitation, Regulation D) or the adoption or making after
such date of any interpretation, directive or request applying to a class of
banks including such Lender of or under any Federal, state or foreign law or
regulations (whether or not having the force of law and whether or not failure
to comply therewith would be unlawful) by any court or governmental or monetary
authority charged with the interpretation or administration thereof.
"Reimbursement Obligation" shall mean, at any time, the
obligations of the Revolving Credit Borrowers then outstanding, or that may
thereafter arise in respect of all Letters of Credit then outstanding, to
reimburse amounts paid by an Issuing Bank in respect of any drawings under a
Letter of Credit issued by such Issuing Bank.
"Release" shall mean any release, spill, emission, leaking,
pumping, injection, deposit, disposal, discharge, dispersal, leaching or
migration into the environment, including, without limitation, the movement of
Hazardous Materials through ambient air, soil, surface water, ground water,
wetlands, land or subsurface strata.
"Relevant Parties" shall have the meaning assigned to such
term in Section 10(b) hereof.
"Reserve Requirement" shall mean, for any Interest Period for
any Eurodollar Loan, the average maximum rate at which reserves (including,
without limitation, any marginal, supplemental or emergency reserves) are
required to be maintained during such Interest Period under Regulation D by
member banks of the Federal Reserve System in New York City with deposits
exceeding one billion Dollars against "Eurocurrency liabilities" (as such term
is used in Regulation D). Without limiting the effect of the foregoing, the
Reserve Requirement shall include any other reserves required to be maintained
by such member banks by reason of any Regulatory Change with respect to (i) any
category of liabilities that includes deposits by reference to which the
Eurodollar Base Rate is to be determined as provided in the definition of
"Eurodollar Base Rate" in this Section 1.01 or (ii) any category of extensions
of credit or other assets that includes Eurodollar Loans.
"Responsible Officer" shall mean, with respect to any Person,
the Treasurer, Chief Financial Officer and Controller of such Person and such
other officers of the relevant Person as the Administrative Agent may agree.
"Restatement Effective Date" shall mean the date on which the
conditions to effectiveness set forth in Section 7.01 hereof shall have been
satisfied or waived.
"Revolving Credit Borrower" shall have the meaning assigned to
such term in the preamble of this Agreement.
"Revolving Credit Borrowing Period" shall mean the period from
and including the Restatement Effective Date to but not including the Commitment
Termination Date.
"Revolving Credit Commitment" shall mean, as to each Revolving
Credit Lender, the obligation of such Lender to make Revolving Credit Loans, and
to issue or participate in Letters of Credit pursuant to Section 2.03 hereof, in
an aggregate principal or face amount at any one time outstanding up to but not
exceeding the amount set opposite the name of such Lender on Schedule I hereto
under the caption "Revolving Credit Commitment" or, in the case of a Person that
becomes a Revolving Credit Lender pursuant to an assignment permitted under
Section 12.06(b) hereof, as specified in the respective instrument of assignment
pursuant to which such assignment is effected (as the same may be reduced from
time to time pursuant to Section 2.04 hereof). The aggregate principal amount of
the Revolving Credit Commitments is $100,000,000 as of the Restatement Effective
Date.
"Revolving Credit Commitment Percentage" shall mean, with
respect to any Revolving Credit Lender, the ratio of (a) the amount of the
Revolving Credit Commitment of such Lender to (b) the aggregate amount of the
Revolving Credit Commitments of all of the Lenders.
"Revolving Credit Facility" shall mean the revolving credit
facility provided hereunder in respect of the Revolving Credit Commitments.
"Revolving Credit Lenders" shall mean (a) on the date hereof,
the Lenders having Revolving Credit Commitments on Schedule I hereto and (b)
thereafter, the Lenders from time to time holding Revolving Credit Loans or and
Revolving Credit Commitments after giving effect to any assignments thereof
permitted by Section 12.06(b) hereof.
"Revolving Credit Loans" shall mean the loans provided for by
Section 2.01(b) hereof, which may be Base Rate Loans and/or Eurodollar Loans.
"Revolving Credit Notes" shall mean the promissory notes under
the Revolving Credit Facility provided for by Section 2.08(a) hereof and all
promissory notes delivered in substitution or exchange therefor, in each case as
the same shall be modified and supplemented and in effect from time to time.
"Securitization Subsidiary" shall mean a Subsidiary of the
Parent (all of the outstanding Capital Stock of which, other than de minimis
preferred stock and director's qualifying shares, if any, is owned, directly or
indirectly, by the Parent) or another special purpose vehicle that is
established for the limited purpose of acquiring and financing Receivables and
Related Assets of the Parent and/or any of its Subsidiaries and engaging in
activities ancillary thereto.
"Security Documents" shall mean, collectively, the Pledge and
Security Agreement, the Mortgages and all Uniform Commercial Code financing
statements required thereby to be filed with respect to the security interests
in personal Property and fixtures created pursuant thereto.
"Senior Indebtedness" shall mean all Indebtedness of the
Parent and its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP) other than Subordinated Indebtedness.
"Senior Subordinated Debt" shall mean the Indebtedness of the
Parent in respect of the 10-3/4% Senior Subordinated Notes of the Parent due
October 1, 2006 issued under the Senior Subordinated Debt Indenture.
"Senior Subordinated Debt Documents" shall mean the Placement
Agreement, the Senior Subordinated Debt Indenture, the securities or other
instruments evidencing the Senior Subordinated Debt and all other documents,
instruments and agreements executed and delivered in connection with the
original issuance of the Senior Subordinated Debt, in each case, as the same
shall, subject to Section 9.17 hereof, be modified and supplemented and in
effect from time to time.
"Senior Subordinated Debt Indenture" shall mean the Indenture
dated as of September 20, 1996 between the Parent, each of the subsidiary
guarantors party thereto and Harris Trust and Savings Bank, as Trustee, as
supplemented by a First Supplemental Indenture thereto dated as of November 12,
1996 in substantially the form delivered to the Lenders prior to the date hereof
and as the same shall, subject to Section 9.17 hereof, be further modified and
supplemented and in effect from time to time.
"Specified Debt Issuance" shall mean any incurrence or
issuance of Indebtedness under Section 9.07 hereof other than under paragraph
(g) thereof (except to the extent such Indebtedness constitutes Capital Lease
Obligations and other Indebtedness secured by Liens permitted under Section
9.06(i) or 9.06(j) hereof).
"Specified Event of Default Period" shall mean:
(a) any period during which an Event of Default has occurred
and is continuing under Section 10(a) hereof;
(b) any period during which an Event of Default has occurred
and is continuing under Section 9.10 hereof; and
(c) the period specified below relating to any Other Event of
Default that continues unremedied for a period of 30 or more days after
notice thereof to the Parent by the Administrative Agent or any Lender
(through the Administrative Agent). For purposes of this paragraph (c),
the "Specified Event of Default Period" relating to any Other Event of
Default shall be the period:
(i) commencing on the earlier of (x) the date on
which the Parent first obtains knowledge of the occurrence of
such Other Event of Default and (y) the date on which notice
of such Other Event of Default is delivered to the Parent by
the Administrative Agent or any Lender (through the
Administrative Agent) and
(ii) ending on the date on which such Other Event of
Default is cured or waived.
"Standard & Poor's" shall mean Standard & Poor's Ratings Group
or any successor thereto.
"Stock Repurchases" shall mean Dividend Payments constituting
the purchase, redemption, retirement or other acquisition of shares of any class
of Capital Stock of the Parent, but excluding Employee Stock Repurchases.
"Subordinated Indebtedness" shall mean, collectively, (a)
Senior Subordinated Debt and (b) other Indebtedness (i) for which the Parent is
directly and primarily liable, (ii) in respect of which none of its Subsidiaries
is contingently or otherwise obligated and (iii) that is subordinated to the
obligations of the Obligors hereunder on terms, and pursuant to documentation
containing other terms (including interest, amortization, covenants and events
of default), no less favorable to the Lenders than the terms set forth in the
Senior Subordinated Debt Documents or otherwise in form and substance
satisfactory to the Majority Lenders.
"Subsidiary" shall mean, with respect to any Person, any
corporation, partnership or other entity of which at least a majority of the
securities or other ownership interests having by the terms thereof ordinary
voting power to elect a majority of the board of directors or other persons
performing similar functions of such corporation, partnership or other entity
(irrespective of whether or not at the time securities or other ownership
interests of any other class or classes of such corporation, partnership or
other entity shall have or might have voting power by reason of the happening of
any contingency) is at the time directly or indirectly owned or controlled by
such Person or one or more Subsidiaries of such Person or by such Person and one
or more Subsidiaries of such Person.
"Subsidiary Guarantors" shall have the meaning assigned to
such term in the recital of parties to this Agreement.
"Swingline Commitment" shall mean the obligation of the
Swingline Lender to make Swingline Loans in an aggregate principal at any one
time outstanding up to but not exceeding $20,000,000.
"Swingline Facility" shall mean the swingline facility
provided hereunder in respect of the Swingline Commitments.
"Swingline Lender" shall mean NatWest in its capacity as
lender under the Swingline Facility, together with its successors in such
capacity.
"Swingline Loans" shall have the meaning assigned to such term
in Section 2.01(b) hereof.
"Swingline Note" shall mean a promissory note provided for by
Section 2.08(a) hereof and any promissory note delivered in substitution or
exchange therefor, in each case as the same shall be modified and supplemented
and in effect from time to time.
"Total Indebtedness" shall mean, as at any date, the sum, for
the Parent and its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of (a) all Indebtedness and (b) all other
liabilities that should be classified as indebtedness on the Parent's
consolidated balance sheet.
"Total Interest Coverage Ratio" shall mean, at any date, the
ratio of (a) EBITDA for the Calculation Period to (b) Total Interest Expense for
such period.
"Total Interest Expense" shall mean, for any period, the sum,
for the Parent and its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of the following: (a) all interest in
respect of Indebtedness (including, without limitation, the interest component
of any payments in respect of Capital Lease Obligations) accrued or capitalized
during such period (whether or not actually paid during such period) plus (b)
the net amount payable (or minus the net amount receivable) under Interest Rate
Protection Agreements during such period (whether or not actually paid or
received during such period) plus (c) all fees in respect of any Permitted
Receivables Financing accrued and/or paid during such period.
"Total Leverage Ratio" shall mean, as at any date, the ratio
of (a) Total Indebtedness as at such date to (b) EBITDA for the Calculation
Period.
"Type" shall have the meaning assigned to such term in Section
1.03 hereof.
"Voting Stock" shall mean, with respect to any Person, Capital
Stock of any class or kind ordinarily having the power to vote for the election
of directors, managers or other voting members of the governing body of such
Person.
"Wholly Owned Subsidiary" shall mean, with respect to any
Person, any corporation, partnership or other entity of which all of the equity
securities or other ownership interests (other than, in the case of a
corporation, directors' qualifying shares) are directly or indirectly owned or
controlled by such Person or one or more Wholly Owned Subsidiaries of such
Person or by such Person and one or more Wholly Owned Subsidiaries of such
Person.
1.02 Accounting Terms and Determinations
(a) Except as otherwise expressly provided herein, all
accounting terms used herein shall be interpreted, and all financial statements
and certificates and reports as to financial matters required to be delivered to
the Lenders hereunder shall (unless otherwise disclosed to the Lenders in
writing at the time of delivery thereof in the manner described in paragraph (b)
below) be prepared, in accordance with generally accepted accounting principles
applied on a basis consistent with those used in the preparation of the latest
financial statements furnished to the Lenders hereunder (which, prior to the
delivery of the first financial statements under Section 9.01 hereof, shall mean
the audited financial statements as at December 31, 1996 referred to in Section
8.02 hereof). All calculations made for the purposes of determining compliance
with this Agreement shall (except as otherwise expressly provided herein) be
made by application of generally accepted accounting principles applied on a
basis consistent with those used in the preparation of the latest annual or
quarterly financial statements furnished to the Lenders pursuant to Section 9.01
hereof (or, prior to the delivery of the first financial statements under
Section 9.01 hereof, used in the preparation of the audited financial statements
as at December 31, 1996 referred to in Section 8.02 hereof) unless (i) the
Parent shall have objected to determining such compliance on such basis at the
time of delivery of such financial statements or (ii) the Majority Lenders shall
so object in writing within 30 days after delivery of such financial statements,
in either of which events such calculations shall be made on a basis consistent
with those used in the preparation of the latest financial statements as to
which such objection shall not have been made (which, if objection is made in
respect of the first financial statements delivered under Section 9.01 hereof,
shall mean the audited financial statements referred to in Section 8.02 hereof).
(b) The Parent shall deliver to the Lenders at the same time
as the delivery of any annual or quarterly financial statement under Section
9.01 hereof (i) a description in reasonable detail of any material variation
between the application of accounting principles employed in the preparation of
such statement and the application of accounting principles employed in the
preparation of the next preceding annual or quarterly financial statements as to
which no objection has been made in accordance with the last sentence of
paragraph (a) above and (ii) reasonable estimates of the difference between such
statements arising as a consequence thereof.
(c) On the date hereof, (i) the last day of the fiscal year of
Alflex and each of its Subsidiaries is March 31, and the last days of the first
three fiscal quarters in each of their fiscal years is June 30, September 30 and
December 31, and (ii) the last day of the fiscal year of the Parent and each of
its Subsidiaries is December 31, and the last days of the first three fiscal
quarters in each of their fiscal years is March 31, June 30 and September 30. To
enable the ready and consistent determination of compliance with the covenants
set forth in Section 9 hereof, neither the Parent nor any of its Subsidiaries
will change the last day of its fiscal year or the last days of the first three
fiscal quarters in each of its fiscal years.
1.03 Types of Loans. Loans hereunder are
distinguished by "Type". The "Type" of a Loan refers to whether such Loan is a
Base Rate Loan or a Eurodollar Loan, each of which constitutes a Type.
Section 2. Commitments, Loans, Notes and Prepayments.
2.01 Loans.
(a) Revolving Credit Loans.
(i) On the Restatement Effective Date, the "Revolving Credit
Loans" held by the Existing Lenders under the Existing Credit Agreement
shall automatically, and without any action on the part of any Person,
be designated as Revolving Credit Loans hereunder and each Existing
Lender, if any, whose relative proportion of Revolving Credit
Commitments hereunder is increasing over the proportion of Existing
Revolving Credit Loans held by it under the Existing Credit Agreement
shall, by assignments from the Existing Lenders (which shall be deemed
to occur automatically on the Restatement Effective Date), acquire a
portion of the Revolving Credit Loans of the Existing Lenders in such
amounts (and the Revolving Credit Lenders shall, through the
Administrative Agent, make such additional adjustments among themselves
as shall be necessary) so that after giving effect to such assignments
and adjustments, the Revolving Credit Lenders shall hold the Revolving
Credit Loans hereunder ratably in accordance with their respective
Revolving Credit Commitments.
(ii) In addition to the Revolving Credit Loans provided for
under Section 2.01(a)(i) hereof, each Revolving Credit Lender severally
agrees, on the terms and conditions of this Agreement, to make loans to
each of CAC, Alflex and CACI in Dollars during the Revolving Credit
Borrowing Period in an aggregate principal amount at any one time
outstanding (as to all such Borrowers) up to but not exceeding the
amount of the Revolving Credit Commitment of such Lender as in effect
from time to time, provided that in no event shall the sum of (x) the
aggregate principal amount of all Revolving Credit Loans (including all
Swingline Loans), together with the aggregate amount of all Letter of
Credit Liabilities plus (y) the aggregate amount of the Reserved
Commitments exceed the aggregate amount of the Revolving Credit
Commitments as in effect from time to time.
(iii) On the Restatement Effective Date, all "Interest
Periods" under the Existing Credit Agreement in respect of the Existing
Revolving Credit Loans shall automatically be terminated, and, subject
to the terms and conditions of this Agreement, during the Revolving
Credit Borrowing Period the Revolving Credit Borrowers may borrow,
repay and reborrow the amount of the Revolving Credit Commitments by
means of Base Rate Loans and Eurodollar Loans and may Convert Revolving
Credit Loans of one Type into Revolving Credit Loans of another Type
(as provided in Section 2.09 hereof) or Continue Revolving Credit Loans
of one Type as Revolving Credit Loans of the same Type (as provided in
Section 2.09 hereof).
(b) Swingline Loans. Subject to the terms and conditions of
this Agreement, in addition to the Revolving Credit Loans provided for in
Section 2.01(b) hereof, the Swingline Lender agrees to make loans ("Swingline
Loans") to each of the Revolving Credit Borrowers during the Revolving Credit
Borrowing Period. During the Revolving Credit Borrowing Period, the Revolving
Credit Borrowers may borrow, repay and reborrow Swingline Loans, provided that
the sum of (x) the aggregate principal amount of all Revolving Credit Loans
(including all Swingline Loans), together with the aggregate amount of all
Letter of Credit Liabilities plus (y) the Reserved Commitments, shall not at any
time exceed the aggregate amount of the Revolving Credit Commitments nor shall
the aggregate principal amount of all Swingline Loans exceed $20,000,000. All
Swingline Loans shall be made only as Base Rate Loans and may not be made as or
Converted into Eurodollar Loans.
Upon demand by the Swingline Lender through the Administrative
Agent, each other Lender having a Revolving Credit Commitment shall purchase
from the Swingline Lender, and the Swingline Lender shall sell and assign to
each other such Lender, such other Lender's Revolving Credit Commitment
Percentage of each outstanding Swingline Loan (and related claims for accrued
and unpaid interest thereon) made by such Swingline Lender, by making available
for the account of its Applicable Lending Office to the Administrative Agent for
the account of such Swingline Lender by deposit to the Administrative Agent's
Account, in same day funds, an amount equal to the sum of (x) the portion of the
outstanding principal amount of such Swingline Loans to be purchased by such
Lender plus (y) interest accrued and unpaid to and as of such date on such
portion of the outstanding principal amount of such Swingline Loans. Each
Lender's obligations to make such payments to the Administrative Agent for
account of the Swingline Lender under this paragraph, and the Swingline Lender's
right to receive the same, shall be absolute and unconditional and shall not be
affected by any circumstance whatsoever, including, without limitation, the
failure of any other Lender to make its payment under this paragraph, the
financial condition of any Obligor, the existence of any Default, the failure of
any of the conditions set forth in Section 7 hereof to be satisfied, or the
termination of all or any of the Commitments. Each such payment to the Swingline
Lender shall be made without any offset, abatement, withholding or reduction
whatsoever. Each Lender agrees to purchase its Revolving Credit Commitment
Percentage of such outstanding Swingline Loans on (x) the Business Day on which
demand therefor is made by such Swingline Lender, provided that notice of such
demand is given not later than 12:00 noon New York City time on such Business
Day or (y) the first Business Day next succeeding such demand if notice of such
demand is given after such time. Upon any such assignment by the Swingline
Lender to any other Lender of a portion of the Swingline Lender's Swingline
Loans, the Swingline Lender represents and warrants to such other Lender that
the Swingline Lender is the legal and beneficial owner of such interest being
assigned by it, but makes no other representation or warranty and assumes no
responsibility with respect to such Swingline Loan. If and to the extent that
any Lender shall not have so made the amount of such Swingline Loan available to
the Administrative Agent, such Lender agrees to pay to the Administrative Agent
for the account of the Swingline Lender forthwith on demand such amount together
with interest thereon, for each day from the date of demand by the Swingline
Lender until the date such amount is paid to the Administrative Agent, at the
Federal Funds Rate.
(c) Limit on Eurodollar Loans. No more than eight separate
Interest Periods in respect of Eurodollar Loans under any Facility from each
Lender may be outstanding at any one time.
2.02 Borrowings. Each Borrower shall give the
Administrative Agent (or, in the case of Swingline Loans, shall give the
Swingline Lender) notice of each borrowing by it hereunder as provided in
Section 4.05 hereof. Not later than 1:00 p.m. New York time on the date
specified for each borrowing hereunder, each Lender shall make available the
amount of the Loan or Loans to be made by it on such date to the Administrative
Agent, at an account specified by the Administrative Agent, in immediately
available funds, for account of the relevant Borrower. The amount so received by
the Administrative Agent shall, subject to the terms and conditions of this
Agreement, promptly be made available to the relevant Borrower by depositing the
same, in immediately available funds, in an account of such Borrower designated
by such Borrower.
2.03 Letters of Credit
(a) Subject to the terms and conditions of this Agreement, the
Revolving Credit Commitments may be utilized, upon the request of the relevant
Revolving Credit Borrower, in addition to the Revolving Credit Loans to such
Borrower provided for by Section 2.01 hereof, by the issuance by the Issuing
Banks of letters of credit (collectively, "Letters of Credit") for account of
such Borrower or any of its Subsidiaries (as specified by such Borrower),
provided that in no event shall:
(i) the sum of (x) the aggregate amount of all Letter of
Credit Liabilities, together with the aggregate principal amount of the
Revolving Credit Loans (including all Swingline Loans) plus (y) the
Reserved Commitments, exceed the aggregate amount of the Revolving
Credit Commitments as in effect from time to time;
(ii) the outstanding aggregate amount of all Letter of Credit
Liabilities exceed $30,000,000; and
(iii) the expiration date of any Letter of Credit extend
beyond the earlier of the date five Business Days prior to the
Commitment Termination Date and the date twelve months following the
issuance of such Letter of Credit.
In addition, on the Restatement Effective Date, all "Letters of Credit"
outstanding under the Existing Credit Agreement immediately prior to the
Restatement Effective Date shall automatically, without any action on the part
of any Person, become Letters of Credit outstanding hereunder.
(b) The following additional provisions shall apply to Letters
of Credit:
(i) The relevant Revolving Credit Borrower shall give the
Administrative Agent at least three Business Days' irrevocable prior
notice (effective upon receipt) specifying the Business Day (which
shall be no later than 30 days preceding the Commitment Termination
Date) each Letter of Credit is to be issued, the Issuing Bank to issue
the same and the account party or parties therefor and describing in
reasonable detail the proposed terms of such Letter of Credit
(including the beneficiary thereof) and the nature of the transactions
or obligations proposed to be supported thereby (including whether such
Letter of Credit is to be a commercial letter of credit or a standby
letter of credit). Upon receipt of any such notice, the Administrative
Agent shall advise the relevant Issuing Bank of the contents thereof.
(ii) On each day during the period commencing with the
issuance by an Issuing Bank of any Letter of Credit and until such
Letter of Credit shall have expired or been terminated, the Revolving
Credit Commitment of each Lender shall be deemed to be utilized for all
purposes of this Agreement in an amount equal to such Lender's
Revolving Credit Commitment Percentage of the then undrawn face amount
of such Letter of Credit. Each Revolving Credit Lender (other than the
relevant Issuing Bank) agrees that, upon the issuance of any Letter of
Credit hereunder, it shall automatically acquire a participation in
such Issuing Bank's liability under such Letter of Credit in an amount
equal to such Lender's Revolving Credit Commitment Percentage of such
liability, and each Revolving Credit Lender (other than such Issuing
Bank) thereby shall absolutely, unconditionally and irrevocably assume,
as primary obligor and not as surety, and shall be unconditionally
obligated to such Issuing Bank to pay and discharge when due, its
Revolving Credit Commitment Percentage of such Issuing Bank's liability
under such Letter of Credit.
(iii) Upon receipt from the beneficiary of any Letter of
Credit of any demand for payment under such Letter of Credit, the
relevant Issuing Bank shall promptly notify the relevant Borrower
(through the Administrative Agent) of the amount to be paid by such
Issuing Bank as a result of such demand and the date on which payment
is to be made by such Issuing Bank to such beneficiary in respect of
such demand. Notwithstanding the identity of the account party of any
Letter of Credit, the relevant Borrower hereby unconditionally agrees
to pay and reimburse the Administrative Agent for account of such
Issuing Bank for the amount of each demand for payment under such
Letter of Credit that is in substantial compliance with the provisions
of such Letter of Credit at or prior to the date on which payment is to
be made by such Issuing Bank to the beneficiary thereunder, without
presentment, demand, protest or other formalities of any kind.
(iv) Forthwith upon its receipt of a notice referred to in
paragraph (iii) of this Section 2.03(b), the relevant Borrower shall
advise the Administrative Agent whether or not such Borrower intends to
borrow hereunder to finance its obligation to reimburse the relevant
Issuing Bank for the amount of the related demand for payment and, if
it does, submit a notice of such borrowing as provided in Section 4.05
hereof.
(v) Each Revolving Credit Lender (other than the relevant
Issuing Bank) shall pay to the Administrative Agent for account of such
Issuing Bank at an account specified by the Administrative Agent in
Dollars and in immediately available funds, the amount of such Lender's
Revolving Credit Commitment Percentage of any payment under a Letter of
Credit upon notice by such Issuing Bank (through the Administrative
Agent) to such Revolving Credit Lender requesting such payment and
specifying such amount. Each such Revolving Credit Lender's obligation
to make such payment to the Administrative Agent for account of such
Issuing Bank under this paragraph (v), and such Issuing Bank's right to
receive the same, shall be absolute and unconditional and shall not be
affected by any circumstance whatsoever, including, without limitation,
the failure of any other Revolving Credit Lender to make its payment
under this paragraph (v), the financial condition of the relevant
Borrower (or any other account party or Obligor), the existence of any
Default or the termination of any of the Commitments. Each such payment
to an Issuing Bank shall be made without any offset, abatement,
withholding or reduction whatsoever. If any Revolving Credit Lender
shall default in its obligation to make any such payment to the
Administrative Agent for account of such Issuing Bank, for so long as
such default shall continue the Administrative Agent may at the request
of such Issuing Bank withhold from any payments received by the
Administrative Agent under this Agreement or any Note for account of
such Revolving Credit Lender the amount so in default and, to the
extent so withheld, pay the same to such Issuing Bank in satisfaction
of such defaulted obligation.
(vi) Upon the making of each payment by a Revolving Credit
Lender to an Issuing Bank pursuant to paragraph (v) above in respect of
any Letter of Credit, such Lender shall, automatically and without any
further action on the part of the Administrative Agent, such Issuing
Bank or such Lender, acquire (x) a participation in an amount equal to
such payment in the Reimbursement Obligation owing to such Issuing Bank
by the relevant Borrower hereunder and under the Letter of Credit
Documents relating to such Letter of Credit and (y) a participation in
a percentage equal to such Lender's Revolving Credit Commitment
Percentage in any interest or other amounts payable by the relevant
Borrower hereunder and under such Letter of Credit Documents in respect
of such Reimbursement Obligation (other than the commissions, charges,
costs and expenses payable to such Issuing Bank pursuant to paragraph
(vii) of this Section 2.03(b)). Upon receipt by an Issuing Bank from or
for account of the relevant Borrower of any payment in respect of any
Reimbursement Obligation or any such interest or other amount
(including by way of setoff or application of proceeds of any
collateral security) such Issuing Bank shall promptly pay to the
Administrative Agent for account of each Revolving Credit Lender
entitled thereto, such Revolving Credit Lender's Revolving Credit
Commitment Percentage of such payment, each such payment by such
Issuing Bank to be made in the same money and funds in which received
by such Issuing Bank. In the event any payment received by an Issuing
Bank and so paid to the relevant Revolving Credit Lenders hereunder is
rescinded or must otherwise be returned by such Issuing Bank, each
Revolving Credit Lender shall, upon the request of such Issuing Bank
(through the Administrative Agent), repay to such Issuing Bank (through
the Administrative Agent) the amount of such payment paid to such
Lender, with interest at the rate specified in paragraph (x) of this
Section 2.03(b).
(vii) The Revolving Credit Borrowers shall pay to the
Administrative Agent for account of each Revolving Credit Lender
(ratably in accordance with their respective Revolving Credit
Commitment Percentages) a letter of credit fee in respect of each
Letter of Credit in an amount equal to the Applicable Letter of Credit
Percentage per annum of the daily average undrawn face amount of such
Letter of Credit for the period from and including the date of issuance
of such Letter of Credit (x) in the case of a Letter of Credit that
expires in accordance with its terms, to and including such expiration
date and (y) in the case of a Letter of Credit that is drawn in full or
is otherwise terminated other than on the stated expiration date of
such Letter of Credit, to but excluding the date such Letter of Credit
is drawn in full or is terminated (such fee to be non-refundable, to be
paid in arrears on each Quarterly Date and on the Commitment
Termination Date and to be calculated for any day after giving effect
to any payments made under such Letter of Credit on such day). In
addition, the Revolving Credit Borrowers shall pay to the
Administrative Agent for account of each Issuing Bank a fronting fee in
respect of each Letter of Credit issued by such Issuing Bank in an
amount equal to 0.25% per annum of the daily average undrawn face
amount of such Letter of Credit for the period from and including the
date of issuance of such Letter of Credit (x) in the case of a Letter
of Credit that expires in accordance with its terms, to and including
such expiration date and (y) in the case of a Letter of Credit that is
drawn in full or is otherwise terminated other than on the stated
expiration date of such Letter of Credit, to but excluding the date
such Letter of Credit is drawn in full or is terminated (such fee to be
non-refundable, to be paid in arrears on each Quarterly Date and on the
Commitment Termination Date and to be calculated for any day after
giving effect to any payments made under such Letter of Credit on such
day) plus all commissions, charges, costs and expenses in the amounts
customarily charged by such Issuing Bank from time to time in like
circumstances with respect to the issuance of each Letter of Credit and
drawings and other transactions relating thereto.
(viii) Promptly following the end of each calendar month, each
Issuing Bank shall deliver (through the Administrative Agent) to each
Revolving Credit Lender and each Revolving Credit Borrower a notice
describing the aggregate amount of all Letters of Credit outstanding at
the end of such month. Upon the request of any Revolving Credit Lender
from time to time, each Issuing Bank shall deliver any other
information reasonably requested by such Lender with respect to each
Letter of Credit then outstanding.
(ix) The issuance by an Issuing Bank of a Letter of Credit
shall, in addition to the conditions precedent set forth in Section
7.02 hereof, be subject to the conditions precedent that (x) such
Letter of Credit shall be in such form, contain such terms and support
such transactions as shall be satisfactory to such Issuing Bank
consistent with its then current practices and procedures with respect
to letters of credit of the same type and (y) the relevant Revolving
Credit Borrower shall have executed and delivered such applications,
agreements and other instruments relating to such Letter of Credit as
such Issuing Bank shall have reasonably requested consistent with its
then current practices and procedures with respect to letters of credit
of the same type, provided that in the event of any conflict between
any such application, agreement or other instrument and the provisions
of this Agreement or any Security Document, the provisions of this
Agreement and the Security Documents shall control.
(x) To the extent that any Lender shall fail to pay any amount
required to be paid pursuant to paragraph (v) or (vi) of this Section
2.03(b) on the due date therefor, such Lender shall pay interest to the
relevant Issuing Bank (through the Administrative Agent) on such amount
from and including such due date to but excluding the date such payment
is made at a rate per annum equal to the Federal Funds Rate, provided
that if such Lender shall fail to make such payment to such Issuing
Bank within three Business Days of such due date, then, retroactively
to the due date, such Lender shall be obligated to pay interest on such
amount at the Post-Default Rate.
(xi) The issuance by an Issuing Bank of any modification or
supplement to any Letter of Credit hereunder shall be subject to the
same conditions applicable under this Section 2.03 to the issuance of
new Letters of Credit, and no such modification or supplement shall be
issued hereunder unless either (x) the respective Letter of Credit
affected thereby would have complied with such conditions had it
originally been issued hereunder in such modified or supplemented form
or (y) each Revolving Credit Lender shall have consented thereto.
Each Revolving Credit Borrower hereby indemnifies and holds harmless each
Revolving Credit Lender and the Administrative Agent from and against any and
all claims and damages, losses, liabilities, costs or expenses that such Lender
or the Administrative Agent may incur (or that may be claimed against such
Lender or the Administrative Agent by any Person whatsoever) by reason of or in
connection with the execution and delivery or transfer of or payment or refusal
to pay by an Issuing Bank under any Letter of Credit issued by such Issuing
Bank; provided that such Borrower shall not be required to indemnify any Lender
or the Administrative Agent for any claims, damages, losses, liabilities, costs
or expenses to the extent, but only to the extent, caused by (x) the willful
misconduct or gross negligence of such Issuing Bank in determining whether a
request presented under any Letter of Credit complied with the terms of such
Letter of Credit or (y) in the case of such Issuing Bank, such Lender's failure
to pay under any Letter of Credit after the presentation to it of a request
strictly complying with the terms and conditions of such Letter of Credit.
Nothing in this Section 2.03 is intended to limit the other obligations of any
Borrower, any Lender or the Administrative Agent under this Agreement.
2.04 Changes of Commitments.
(a) Expiration of Commitments. The Revolving Credit
Commitments shall be automatically reduced to zero on the Commitment Termination
Date.
(b) Reductions of Commitments. Each Borrower shall have the
right at any time or from time to time (i) to reduce the aggregate unused amount
of the Commitments under its Facilities (for which purpose use of Revolving
Credit Commitments shall be deemed to include the aggregate amount of Swingline
Loans and Letter of Credit Liabilities) and (ii) in the case of the Revolving
Credit Borrowers, so long as no Loans (including all Swingline Loans) or Letter
of Credit Liabilities are outstanding, to terminate the Revolving Credit
Commitments; provided that (x) the relevant Borrower shall give notice of each
such termination or reduction as provided in Section 4.05 hereof and (y) each
partial reduction shall be in an aggregate amount at least equal to $5,000,000
(or a larger multiple of $1,000,000).
(c) General. The Commitments under any Facility once
terminated or reduced may not be reinstated.
2.05 Certain Fees.
(a) The Revolving Credit Borrowers shall pay to the
Administrative Agent for account of each Lender a fee ("Facility Fees") on the
daily average amount of such Lender's Revolving Credit Commitment (whether used
or unused), for the period from and including the Restatement Effective Date to
but not including the earlier of the date such Revolving Credit Commitment is
terminated and the Commitment Termination Date, at a rate per annum equal to the
Applicable Facility Fee Percentage in effect from time to time.
(b) Accrued Facility Fee shall be payable on each Quarterly
Date and on the earlier of the date the Revolving Credit Commitments are
terminated and the Commitment Termination Date.
(c) Notwithstanding anything to the contrary contained herein
or in the Existing Credit Agreement, the accrued fees payable under Section 2.05
of the Existing Credit Agreement shall be payable on the Restatement Effective
Date.
2.06 Lending Offices. The Loans of each
Type made by each Lender shall be made and maintained at such Lender's
Applicable Lending Office for Loans of such Type.
2.07 Several Obligations; Remedies Independent.
The failure of any Lender to make any Loan to
be made by it on the date specified therefor shall not relieve any other Lender
of its obligation to make its Loan on such date, but neither any Lender nor the
Administrative Agent shall be responsible for the failure of any other Lender to
make a Loan to be made by such other Lender, and (except as otherwise provided
in Section 4.06 hereof) no Lender shall have any obligation to the
Administrative Agent or any other Lender for the failure by such Lender to make
any Loan required to be made by such Lender. The amounts payable by each
Borrower at any time hereunder and under the Notes to each Lender shall be a
separate and independent debt and each Lender shall be entitled to protect and
enforce its rights arising out of this Agreement and the Notes, and it shall not
be necessary for any other Lender or the Administrative Agent to consent to, or
be joined as an additional party in, any proceedings for such purposes.
2.08 Notes.
(a) Promissory Notes. The Loans made by each Lender under each
Facility shall be evidenced by a single promissory note of each relevant
Borrower substantially in the form of the Exhibit hereto identified below
opposite the name of such Facility:
Facility Exhibit
Revolving Credit Facility Exhibit A-1
Swingline Facility Exhibit A-2
Each Note shall be dated the Restatement Effective Date, payable to such Lender
in a principal amount equal to the amount of its Commitment under the relevant
Facility as in effect on the Restatement Effective Date and otherwise duly
completed. The Swingline Note evidencing the Swingline Loans made by the
Swingline Lender shall be dated the Restatement Effective Date, payable to the
Swingline Lender in a principal amount equal to $20,000,000 and otherwise duly
completed.
(b) Recordation of Loans, Etc. The date, amount, Type,
interest rate and duration of Interest Period (if applicable) of each Loan under
each Facility made by each Lender to the relevant Borrower, and each payment
made on account of the principal thereof, shall be recorded by such Lender on
its books and, prior to any transfer of the Note evidencing the Loans under such
Facility held by it, endorsed by such Lender on the schedule attached to such
Note or any continuation thereof; provided that the failure of such Lender to
make any such recordation or endorsement shall not affect the obligations of the
relevant Borrower to make a payment when due of any amount owing hereunder or
under such Note in respect of such Loans.
(c) Substitution, Exchange, Subdivision, Etc. No Lender shall
be entitled to have its Notes substituted or exchanged for any reason, or
subdivided for promissory notes of lesser denominations, except in connection
with a permitted assignment of all or any portion of such Lender's relevant
Commitments, Loans and Notes pursuant to Section 12.06 hereof (and, if requested
by any Lender, each Borrower agrees to so exchange any Note).
2.09 Optional Prepayments and Conversions or Continuations of
Loans. Subject
to Section 4.04 hereof, each Borrower shall have the right to prepay Loans, to
Convert Loans of one Type under one Facility into Loans of another Type under
the same Facility or to Continue Loans of one Type under one Facility as Loans
of the same Type under the same Facility, at any time or from time to time,
provided that:
(a) such Borrower shall give the Administrative Agent (or, in
the case of Swingline Loans, shall give the Swingline Lender) notice of
each such prepayment, Conversion or Continuation as provided in Section
4.05 hereof (and, upon the date specified in any such notice of
prepayment, the amount to be prepaid shall become due and payable
hereunder);
(b) any such prepayment or Conversion of a Eurodollar Loan
other than on the last day of an Interest Period therefor shall be
accompanied by, and subject to, the payment of any amount payable under
Section 5.05 hereof in respect of such prepayment or Conversion; and
(c) any Conversion or Continuation of Eurodollar Loans shall
be subject to the provisions of Section 2.01(c) hereof.
Notwithstanding the foregoing, and without limiting the rights and remedies of
the Lenders under Section 10 hereof, in the event that any Event of Default
shall have occurred and be continuing, the Administrative Agent may (and at the
request of the Majority Lenders shall) suspend the right of the Borrowers to
Convert any Loan into a Eurodollar Loan, or to Continue any Loan as a Eurodollar
Loan, in which event all Loans shall be Converted (on the last day(s) of the
respective Interest Periods therefor) or Continued, as the case may be, as Base
Rate Loans.
Section 3. Payments of Principal and Interest.
3.01 Repayment of Loans.01 Repayment of Loans.
(a) Revolving Credit Facility. Each Revolving Credit Borrower
hereby jointly and severally promises to pay to the Administrative Agent for
account of each Lender the entire outstanding principal amount of such Lender's
Revolving Credit Loans, and each such Loan shall mature, on the Commitment
Termination Date.
(b) Swingline Loans. The Revolving Credit Borrowers hereby
jointly and severally promise to pay to the Administrative Agent for account of
the Swingline Lender (or each other Lender holding a Swingline Loan) the entire
outstanding principal amount of the Swingline Loans, and each such Loan shall
mature, on the Commitment Termination Date.
3.02 Interest. Each Borrower hereby promises to
pay to the Administrative Agent for account of each Lender interest on the
unpaid principal amount of each Loan (including each Swingline Loan) made by
such Lender to such Borrower for the period from and including the date of such
Loan to but excluding the date such Loan shall be paid in full, at the following
rates per annum:
(a) during such periods as such Loan is a Base Rate Loan, the
Base Rate (as in effect from time to time) plus the Applicable Margin
and
(b) during such periods as such Loan is a Eurodollar Loan, for
each Interest Period relating thereto, the Eurodollar Rate for such
Loan for such Interest Period plus the Applicable Margin.
Notwithstanding the foregoing, each Borrower hereby promises to pay to the
Administrative Agent for account of each Lender interest at the applicable
Post-Default Rate:
(x) on any principal of any Loan made by such Lender to such
Borrower, on any Reimbursement Obligation of such Borrower held by such
Lender and on any other amount payable by such Borrower hereunder or
under the Notes held by such Lender to or for account of such Lender,
that shall not be paid in full when due (whether at stated maturity, by
acceleration, by mandatory prepayment or otherwise), for the period
from and including the due date thereof to but excluding the date the
same is paid in full; and
(y) during any Specified Event of Default Period.
Accrued interest on each Loan shall be payable (i) in the case of a Base Rate
Loan and a Swingline Loan, quarterly on the Quarterly Dates, (ii) in the case of
a Eurodollar Loan, on the last day of each Interest Period therefor and, if such
Interest Period is longer than three months, at three-month intervals following
the first day of such Interest Period, and (iii) in the case of any Loan (other
than a Swingline Loan), upon the payment or prepayment thereof or the Conversion
of such Loan to a Loan of another Type (but only on the principal amount so
paid, prepaid or Converted), except that interest payable at the Post-Default
Rate shall be payable from time to time on demand. Promptly after the
determination of any interest rate provided for herein or any change therein,
the Administrative Agent shall give notice thereof to the Lenders to which such
interest is payable and to the Borrowers.
Notwithstanding anything to the contrary contained herein or
in the Existing Credit Agreement, accrued interest payable under Section 3.02 of
the Existing Credit Agreement with respect to any of the "Loans" outstanding
thereunder immediately prior to the Restatement Effective Date shall be paid on
the Restatement Effective Date.
Section 4. Payments; Pro Rata Treatment; Computations; Etc.
4.01 Payments.
(a) Except to the extent otherwise provided herein, all
payments of principal, interest, Reimbursement Obligations and other amounts to
be made by the Borrowers under this Agreement and the Notes, and, except to the
extent otherwise provided therein, all payments to be made by the Obligors under
any other Credit Document, shall be made in Dollars, in immediately available
funds, without deduction, set-off or counterclaim, to the Administrative Agent
at an account specified by the Administrative Agent, not later than 1:00 p.m.
New York time on the date on which such payment shall become due (each such
payment made after such time on such due date to be deemed to have been made on
the next succeeding Business Day).
(b) Any Lender for whose account any such payment by a
Borrower is to be made may (but shall not be obligated to) debit the amount of
any such payment that is not made by such time to any ordinary deposit account
of such Borrower with such Lender (with notice to such Borrower and the
Administrative Agent), provided that such Lender's failure to give such notice
shall not affect the validity thereof.
(c) Each Borrower shall, at the time of making each payment
under this Agreement or any Note for account of any Lender, specify to the
Administrative Agent (which shall so notify the intended recipient(s) thereof)
the Loans, Reimbursement Obligations or other amounts payable by such Borrower
hereunder to which such payment is to be applied (and in the event that such
Borrower fails to so specify, or if an Event of Default has occurred and is
continuing, the Administrative Agent may distribute such payment to the Lenders
for application in such manner as it or the Majority Lenders, subject to Section
4.02 hereof, may determine to be appropriate).
(d) Except to the extent otherwise provided in the last
sentence of Section 2.03(b)(v) hereof, each payment received by the
Administrative Agent under this Agreement or any Note for account of any Lender
shall be paid by the Administrative Agent promptly to such Lender, in
immediately available funds, for account of such Lender's Applicable Lending
Office for the Loan or other obligation in respect of which such payment is
made.
(e) If the due date of any payment under this Agreement or any
Note would otherwise fall on a day that is not a Business Day, such date shall
be extended to the next succeeding Business Day, and interest shall be payable
for any principal so extended for the period of such extension.
4.02 Pro Rata Treatment. Except to the
extent otherwise provided herein: (a) each borrowing of Loans under a particular
Facility from the Lenders under Section 2.01 hereof shall be made from the
relevant Lenders, each payment of Facility Fees under Section 2.05 hereof in
respect of the Revolving Credit Commitments shall be made for account of the
relevant Revolving Credit Lenders, and each termination or reduction of the
amount of the Commitments under a particular Facility under Section 2.04 hereof
shall be applied to the respective Commitments under such Facility of the
relevant Lenders, pro rata according to the amounts of their respective
Commitments under such Facility; (b) except as otherwise provided in Section
5.04 hereof, Eurodollar Loans under any Facility having the same Interest Period
shall be allocated pro rata among the relevant Lenders according to the amounts
of their respective Commitments under such Facility (in the case of the making
of Loans) or their respective Loans under such Facility (in the case of
Conversions and Continuations of Loans); (c) each payment or prepayment of
principal of Loans under a particular Facility by a Borrower shall be made for
account of the relevant Lenders pro rata in accordance with the respective
unpaid principal amounts of the Loans under such Facility held by them; and (d)
each payment of interest on Loans under a particular Facility by the relevant
Borrower shall be made for account of the relevant Lenders pro rata in
accordance with the amounts of interest on such Loans then due and payable to
the respective Lenders. Notwithstanding the foregoing, borrowings, payments and
prepayments of Swingline Loans shall be made without regard to the foregoing
provisions of this Section 4.02.
4.03 Computations. Interest on Eurodollar
Loans, Facility Fees and letter of credit fees shall be computed on the basis of
a year of 360 days and actual days elapsed (including the first day but, except
as otherwise provided in Section 2.03(b)(vii) hereof, excluding the last day)
occurring in the period for which payable, and interest on Base Rate Loans and
Reimbursement Obligations shall be computed on the basis of a year of 365 or 366
days, as the case may be, and actual days elapsed (including the first day but
excluding the last day) occurring in the period for which payable.
Notwithstanding the foregoing, for each day that the Base Rate is calculated by
reference to the Federal Funds Rate, interest on Base Rate Loans and
Reimbursement Obligations shall be computed on the basis of a year of 360 days
and actual days elapsed.
4.04 Minimum Amounts. Except for
Conversions made pursuant to Section 5.04 hereof, each borrowing and Conversion
of principal of Loans (other than Swingline Loans) shall be in an aggregate
amount at least equal to $5,000,000 or a larger multiple of $1,000,000
(borrowings or Conversions of or into Loans of different Types or, in the case
of Eurodollar Loans, having different Interest Periods at the same time
hereunder to be deemed separate borrowings and Conversions for purposes of the
foregoing, one for each Type or Interest Period), provided that the aggregate
principal amount of Eurodollar Loans having the same Interest Period shall be in
an amount at least equal to $5,000,000 or a larger multiple of $1,000,000 and,
if any Eurodollar Loans would otherwise be in a lesser principal amount for any
period, such Loans shall be borrowed as Base Rate Loans during such period.
Except for prepayments made pursuant to Section 5.04 hereof, each partial
prepayment of principal of Loans (other than Swingline Loans) shall be in an
aggregate amount at least equal to $500,000 or a larger multiple of $500,000
(prepayments of Loans of different Types or, in the case of Eurodollar Loans,
having different Interest Periods at the same time hereunder to be deemed
separate prepayments for purposes of the foregoing, one for each Type or
Interest Period). Each borrowing of Swingline Loans shall be in an aggregate
amount at least equal to $100,000 or in multiples of $50,000 in excess thereof
and each partial prepayment of Swingline Loans shall be in an aggregate amount
at least equal to $50,000 or in multiples of $50,000 in excess thereof.
4.05 Certain Notices. Notices by a Borrower
to the Administrative Agent of terminations or reductions of the Commitments, of
borrowings, Conversions, Continuations and optional prepayments of Loans, of
Types of Loans and of the duration of Interest Periods shall be irrevocable and
shall be effective only if received by the Administrative Agent not later than
12:00 noon New York time on the number of Business Days prior to the date of the
relevant termination, reduction, borrowing, Conversion, Continuation or
prepayment or the first day of such Interest Period specified below:
Number of
Business
Notice Days Prior
Termination or reduction
of Commitments 3
Borrowing or prepayment
of Swingline Loans same day
Borrowing or prepayment of,
or Conversions into,
Base Rate Loans
(other than Swingline Loans) 1
Borrowing or prepayment of,
Conversions into, Continuations
as, or duration of Interest
Period for, Eurodollar Loans 3
Each such notice of termination or reduction shall specify the amount and the
Facility under which the Commitments are to be terminated or reduced. Each such
notice of borrowing, Conversion, Continuation or optional prepayment shall
specify the Facility of Loans to be borrowed, Converted, Continued or prepaid
and the amount (subject to Section 4.04 hereof) and Type of each Loan to be
borrowed, Converted, Continued or prepaid and the date of borrowing, Conversion,
Continuation or optional prepayment (which shall be a Business Day). Each such
notice of the duration of an Interest Period shall specify the Loans to which
such Interest Period is to relate. The Administrative Agent shall promptly
notify the Lenders of the contents of each such notice. In the event that a
Borrower fails to select the Type of Loan, or the duration of any Interest
Period for any Eurodollar Loan, within the time period and otherwise as provided
in this Section 4.05, such Loan (if outstanding as a Eurodollar Loan) will be
automatically Converted into a Base Rate Loan on the last day of the then
current Interest Period for such Loan or (if outstanding as a Base Rate Loan)
will remain as, or (if not then outstanding) will be made as, a Base Rate Loan.
4.06 Non-Receipt of Funds by the Administrative Agent.
Unless the Administrative
Agent shall have been notified by a Lender or a Borrower (the "Payor") prior to
the date on which the Payor is to make payment to the Administrative Agent of
(in the case of a Lender) the proceeds of a Loan required to be made by such
Lender hereunder or (in the case of a Borrower) a payment to the Administrative
Agent for account of one or more of the Lenders hereunder (such payment being
herein called the "Required Payment"), which notice shall be effective upon
receipt, that the Payor does not intend to make the Required Payment to the
Administrative Agent, the Administrative Agent may assume that the Required
Payment has been made and may, in reliance upon such assumption (but shall not
be required to), make the amount thereof available to the intended recipient(s)
on such date; and, if the Payor has not in fact made the Required Payment to the
Administrative Agent, the recipient(s) of such payment shall, on demand, repay
to the Administrative Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the date (the
"Advance Date") such amount was so made available by the Administrative Agent
until the date the Administrative Agent recovers such amount at a rate per annum
equal to the Federal Funds Rate for such day and, if such recipient(s) shall
fail promptly to make such payment, the Administrative Agent shall be entitled
to recover such amount, on demand, from the Payor, together with interest as
aforesaid, provided that if neither the recipient(s) nor the Payor shall return
the Required Payment to the Administrative Agent within three Business Days of
the Advance Date, then, retroactively to the Advance Date, the Payor and the
recipient(s) shall each be obligated to pay interest on the Required Payment as
follows:
(i) if the Required Payment shall represent a payment to be
made by a Borrower to the Lenders, such Borrower and the recipient(s)
shall each be obligated retroactively to the Advance Date to pay
interest in respect of the Required Payment at the Post-Default Rate
(without duplication of the obligation of the Borrowers under Section
3.02 hereof to pay interest on the Required Payment at the Post-Default
Rate), it being understood that the return by the recipient(s) of the
Required Payment to the Administrative Agent shall not limit such
obligation of such Borrower under said Section 3.02 to pay interest at
the Post-Default Rate in respect of the Required Payment and
(ii) if the Required Payment shall represent proceeds of a
Loan to be made by the Lenders to a Borrower, the Payor and such
Borrower shall each be obligated retroactively to the Advance Date to
pay interest in respect of the Required Payment pursuant to whichever
of the rates specified in Section 3.02 hereof is applicable to the Type
of such Loan, it being understood that the return by a Borrower of the
Required Payment to the Administrative Agent shall not limit any claim
such Borrower may have against the Payor in respect of such Required
Payment.
4.07 Sharing of Payments, Etc..
(a) Each Obligor agrees that, in addition to (and without
limitation of) any right of set-off, banker's lien or counterclaim a Lender may
otherwise have, each Lender shall be entitled, at its option (to the fullest
extent permitted by law), to set off and apply any deposit (general or special,
time or demand, provisional or final), or other indebtedness, held by it for the
credit or account of such Obligor at any of its offices, in Dollars or in any
other currency, against any principal of or interest on any of such Lender's
Loans, Reimbursement Obligations or any other amount payable to such Lender
hereunder, that is not paid when due (regardless of whether such deposit or
other indebtedness are then due to such Obligor), in which case it shall
promptly notify such Obligor and the Administrative Agent thereof, provided that
such Lender's failure to give such notice shall not affect the validity thereof.
(b) If any Lender shall obtain from any Obligor payment of any
principal of or interest on any Loan under any Facility or Letter of Credit
Liability owing to it or payment of any other amount under this Agreement or any
other Credit Document through the exercise of any right of set-off, banker's
lien or counterclaim or similar right or otherwise (other than from the
Administrative Agent as provided herein), and, as a result of such payment, such
Lender shall have received a greater percentage of the principal of or interest
on the Loans under such Facility or Letter of Credit Liabilities or such other
amounts then due hereunder or thereunder by such Obligor to such Lender than the
percentage received by any other Lender, it shall promptly purchase from such
other Lenders participations in (or, if and to the extent specified by such
Lender, direct interests in) the Loans under such Facility or Letter of Credit
Liabilities or such other amounts, respectively, owing to such other Lenders (or
in interest due thereon, as the case may be) in such amounts, and make such
other adjustments from time to time as shall be equitable, to the end that all
the Lenders shall share the benefit of such excess payment (net of any expenses
that may be incurred by such Lender in obtaining or preserving such excess
payment) pro rata in accordance with the unpaid principal of and/or interest on
the Loans under such Facility or Letter of Credit Liabilities or such other
amounts, respectively, owing to each of the Lenders. To such end all the Lenders
shall make appropriate adjustments among themselves (by the resale of
participations sold or otherwise) if such payment is rescinded or must otherwise
be restored.
(c) Each Obligor agrees that any Lender so purchasing such a
participation (or direct interest) may exercise all rights of set-off, banker's
lien, counterclaim or similar rights with respect to such participation as fully
as if such Lender were a direct holder of Loans or other amounts (as the case
may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to
exercise any such right or shall affect the right of any Lender to exercise, and
retain the benefits of exercising, any such right with respect to any other
indebtedness or obligation of any Obligor. If, under any applicable bankruptcy,
insolvency or other similar law, any Lender receives a secured claim in lieu of
a set-off to which this Section 4.07 applies, such Lender shall, to the extent
practicable, exercise its rights in respect of such secured claim in a manner
consistent with the rights of the Lenders entitled under this Section 4.07 to
share in the benefits of any recovery on such secured claim.
Section 5. Yield Protection, Etc.
5.01 Additional Costs.01 Additional Costs.
(a) Each Borrower shall pay directly to each Lender from time
to time such amounts as such Lender may determine to be necessary to compensate
such Lender for any costs that such Lender determines are attributable to its
making or maintaining of any Eurodollar Loans or its obligation to make any
Eurodollar Loans hereunder, or any reduction in any amount receivable by such
Lender hereunder in respect of any of such Loans or such obligation, resulting
from any Regulatory Change that:
(i) shall subject any Lender (or its Applicable Lending Office
for any of such Loans) to any tax, duty or other charge in respect of
such Loans or its Notes or changes the basis of taxation of any amounts
payable to such Lender under this Agreement or its Notes in respect of
any of such Loans (excluding changes in the rate of tax on the overall
net income of such Lender or of such Applicable Lending Office by the
jurisdiction in which such Lender has its principal office or such
Applicable Lending Office); or
(ii) imposes or modifies any reserve, special deposit or
similar requirements (other than the Reserve Requirement utilized in
the determination of the Eurodollar Rate for such Loan) relating to any
extensions of credit or other assets of, or any deposits with or other
liabilities of, such Lender (including, without limitation, any of such
Loans or any deposits referred to in the definition of "Eurodollar Base
Rate" in Section 1.01 hereof), or any commitment of such Lender
(including, without limitation, the Commitments of such Lender
hereunder); or
(iii) imposes any other condition affecting this Agreement or
its Notes (or any of such extensions of credit or liabilities) or its
Commitments.
If any Lender requests compensation from a Borrower under this Section 5.01(a),
such Borrower may, by notice to such Lender through the Parent (with a copy to
the Administrative Agent), suspend the obligation of such Lender thereafter to
make or Continue Eurodollar Loans, or to Convert Base Rate Loans into Eurodollar
Loans, until the Regulatory Change giving rise to such request ceases to be in
effect (in which case the provisions of Section 5.04 hereof shall be
applicable), provided that such suspension shall not affect the right of such
Lender to receive the compensation so requested.
(b) Without limiting the effect of the foregoing provisions of
this Section 5.01 (but without duplication), each Borrower shall pay directly to
each Lender from time to time on request such amounts as such Lender may
determine to be necessary to compensate such Lender (or, without duplication,
the bank holding company of which such Lender is a subsidiary) for any costs
that it determines are attributable to the maintenance by such Lender (or any
Applicable Lending Office or such bank holding company), pursuant to any law or
regulation or any interpretation, directive or request (whether or not having
the force of law and whether or not failure to comply therewith would be
unlawful) of any court or governmental or monetary authority (i) following any
Regulatory Change or (ii) implementing any risk-based capital guideline or other
requirement (whether or not having the force of law and whether or not the
failure to comply therewith would be unlawful) hereafter issued by any
government or governmental or supervisory authority implementing at the national
level the Basle Accord, of capital in respect of its Commitments or Loans (such
compensation to include, without limitation, an amount equal to any reduction of
the rate of return on assets or equity of such Lender (or any Applicable Lending
Office or such bank holding company) to a level below that which such Lender (or
any Applicable Lending Office or such bank holding company) could have achieved
but for such law, regulation, interpretation, directive or request).
(c) Each Lender shall notify the Borrowers of any event
occurring after the date hereof entitling such Lender to compensation under
paragraph (a) or (b) of this Section 5.01 as promptly as practicable, but in any
event within 180 days, after such Lender obtains actual knowledge thereof;
provided that (i) if any Lender fails to give such notice within 180 days after
it obtains actual knowledge of such an event, such Lender shall, with respect to
compensation payable pursuant to this Section 5.01 in respect of any costs
resulting from such event, only be entitled to payment under this Section 5.01
for costs incurred from and after the date 180 days prior to the date that such
Lender does give such notice and (ii) each Lender will designate a different
Applicable Lending Office for the Loans of such Lender affected by such event if
such designation will avoid the need for, or reduce the amount of, such
compensation and will not, in the sole opinion of such Lender, be
disadvantageous to such Lender, except that such Lender shall have no obligation
to designate an Applicable Lending Office located in the United States of
America. Each Lender will furnish to the relevant Borrower a certificate setting
forth in reasonable detail the basis and amount of each request by such Lender
for compensation under paragraph (a) or (b) of this Section 5.01. Determinations
and allocations by any Lender for purposes of this Section 5.01 of the effect of
any Regulatory Change pursuant to paragraph (a) of this Section 5.01, or of the
effect of capital maintained pursuant to paragraph (b) of this Section 5.01, on
its costs or rate of return of maintaining Loans or its obligation to make
Loans, or on amounts receivable by it in respect of Loans, and of the amounts
required to compensate such Lender under this Section 5.01, shall be conclusive,
provided that such determinations and allocations are made on a reasonable basis
and consistent with the methodology generally applied by such Lender.
5.02 Limitation on Types of Loans.
Anything herein to the contrary notwithstanding, if, on or prior to the
determination of any Eurodollar Base Rate for any Interest Period:
(a) the Administrative Agent determines, which determination
shall be conclusive, that quotations of interest rates for the relevant
deposits referred to in the definition of "Eurodollar Base Rate" in
Section 1.01 hereof are not being provided in the relevant amounts or
for the relevant maturities for purposes of determining rates of
interest for Eurodollar Loans as provided herein; or
(b) the Majority Lenders determine, which determination shall
be conclusive, and notify the Administrative Agent that the relevant
rates of interest referred to in the definition of "Eurodollar Base
Rate" in Section 1.01 hereof upon the basis of which the rate of
interest for Eurodollar Loans for such Interest Period is to be
determined are not likely adequately to cover the cost to such Lenders
of making or maintaining Eurodollar Loans for such Interest Period;
then the Administrative Agent shall give each Borrower and each Lender prompt
notice thereof and, so long as such condition remains in effect, the Lenders
shall be under no obligation to make additional Eurodollar Loans, to Continue
Eurodollar Loans or to Convert Base Rate Loans into Eurodollar Loans, and each
Borrower shall, on the last day(s) of the then current Interest Period(s) for
the outstanding Eurodollar Loans, either prepay such Loans or Convert such Loans
into Base Rate Loans in accordance with Section 2.09 hereof.
5.03 Illegality. Notwithstanding any other
provision of this Agreement, in the event that it becomes unlawful for any
Lender or its Applicable Lending Office to honor its obligation to make or
maintain Eurodollar Loans hereunder (and, in the sole opinion of such Lender,
the designation of a different Applicable Lending Office would either not avoid
such unlawfulness or would be disadvantageous to such Lender), then such Lender
shall promptly notify each Borrower thereof (with a copy to the Administrative
Agent) and such Lender's obligation to make or Continue, or to Convert Loans of
any other Type into, Eurodollar Loans shall be suspended until such time as such
Lender may again make and maintain Eurodollar Loans (in which case the
provisions of Section 5.04 hereof shall be applicable).
5.04 Treatment of Affected Loans.
If the obligation of any Lender to make Eurodollar Loans or to Continue,
or to Convert Base Rate Loans into, Eurodollar Loans shall be suspended pursuant
to Section 5.01 or 5.03 hereof, such Lender's Eurodollar Loans shall be
automatically Converted into Base Rate Loans on the last day(s) of the then
current Interest Period(s) for Eurodollar Loans (or, in the case of a Conversion
resulting from a circumstance described in Section 5.03 hereof, on such earlier
date as such Lender may specify to the Borrowers with a copy to the
Administrative Agent) and, unless and until such Lender gives notice as provided
below that the circumstances specified in Section 5.01 or 5.03 hereof that gave
rise to such Conversion no longer exist:
(a) to the extent that such Lender's Eurodollar Loans have
been so Converted, all payments and prepayments of principal that would
otherwise be applied to such Lender's Eurodollar Loans shall be applied
instead to its Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by
such Lender as Eurodollar Loans shall be made or Continued instead as
Base Rate Loans, and all Base Rate Loans of such Lender that would
otherwise be Converted into Eurodollar Loans shall remain as Base Rate
Loans.
If such Lender gives notice to the Borrowers with a copy to the Administrative
Agent that the circumstances specified in Section 5.01 or 5.03 hereof that gave
rise to the Conversion of such Lender's Eurodollar Loans pursuant to this
Section 5.04 no longer exist (which such Lender agrees to do promptly upon such
circumstances ceasing to exist) at a time when Eurodollar Loans under the same
Facility made by other Lenders are outstanding, such Lender's Base Rate Loans
under such Facility shall be automatically Converted, on the first day(s) of the
next succeeding Interest Period(s) for such outstanding Eurodollar Loans, to the
extent necessary so that, after giving effect thereto, all Base Rate and
Eurodollar Loans under such Facility are allocated among the Lenders ratably (as
to principal amounts, Types and Interest Periods) in accordance with their
respective Commitments under such Facility.
5.05 Compensation. Each Borrower shall pay to
the Administrative Agent for account of each Lender, upon the request of such
Lender through the Administrative Agent, such amount or amounts as shall be
sufficient (in the reasonable opinion of such Lender) to compensate it for any
loss, cost or expense (excluding lost profit) that such Lender determines is
attributable to:
(a) any payment, mandatory or optional prepayment or
Conversion of a Eurodollar Loan made by such Lender for any reason
(including, without limitation, the acceleration of the Loans pursuant
to Section 10 hereof) on a date other than the last day of the Interest
Period for such Loan; or
(b) any failure by such Borrower for any reason (including,
without limitation, the failure of any of the conditions precedent
specified in Section 7 hereof to be satisfied) to borrow a Eurodollar
Loan from such Lender on the date for such borrowing specified in the
relevant notice of borrowing given pursuant to Section 2.02 hereof.
Without limiting the effect of the preceding sentence, such compensation shall
include an amount equal to the excess, if any, of (i) the amount of interest
that otherwise would have accrued on the principal amount so paid, prepaid,
Converted or not borrowed for the period from the date of such payment,
prepayment, Conversion or failure to borrow to the last day of the then current
Interest Period for such Loan (or, in the case of a failure to borrow, the
Interest Period for such Loan that would have commenced on the date specified
for such borrowing) at the applicable rate of interest (but excluding the
Applicable Margin) for such Loan provided for herein over (ii) the amount of
interest that otherwise would have accrued on such principal amount at a rate
per annum equal to the interest component of the amount such Lender would have
bid in the London interbank market for Dollar deposits of leading banks in
amounts comparable to such principal amount and with maturities comparable to
such period (as reasonably determined by such Lender).
Without limiting the foregoing and notwithstanding anything to
the contrary contained herein or in the Existing Credit Agreement, on the
Restatement Effective Date the Borrowers shall pay to the Administrative Agent
for account of the Existing Lenders such amounts (if any) that would be payable
under Section 5.05 of the Existing Credit Agreement assuming any "Eurodollar
Loans" outstanding thereunder had been paid in full on the Restatement Effective
Date.
5.06 Additional Costs in Respect of Letters of Credit.
Without limiting the
obligations of the Borrowers under Section 5.01 hereof (but without
duplication), if as a result of any Regulatory Change or any risk-based capital
guideline or other requirement heretofore or hereafter issued by any government
or governmental or supervisory authority implementing at the national level the
Basle Accord there shall be imposed, modified or deemed applicable any tax,
reserve, special deposit, capital adequacy or similar requirement against or
with respect to or measured by reference to Letters of Credit issued or to be
issued hereunder and the result shall be to increase the cost to any Lender or
Lenders of issuing (or purchasing participations in) or maintaining its
obligation hereunder to issue (or purchase participations in) any Letter of
Credit hereunder or reduce any amount receivable by any Lender hereunder in
respect of any Letter of Credit (which increases in cost, or reductions in
amount receivable, shall be the result of such Lender's or Lenders' reasonable
allocation of the aggregate of such increases or reductions resulting from such
event), then, upon demand by such Lender or Lenders (through the Administrative
Agent), the Borrowers shall pay immediately to the Administrative Agent for
account of such Lender or Lenders, from time to time as specified by such Lender
or Lenders (through the Administrative Agent), such additional amounts as shall
be sufficient to compensate such Lender or Lenders (through the Administrative
Agent) for such increased costs or reductions in amount. A statement as to such
increased costs or reductions in amount incurred by any such Lender or Lenders,
submitted by such Lender or Lenders to the Borrowers shall be conclusive in the
absence of manifest error as to the amount thereof.
5.07 U.S. Taxes.
(a) Each Borrower agrees to pay to each Lender that is not a
U.S. Person such additional amounts as are necessary in order that the net
payment of any amount due to such non-U.S. Person hereunder after deduction for
or withholding in respect of any U.S. Taxes imposed with respect to such payment
(or in lieu thereof, payment of such U.S. Taxes by such non-U.S. Person), will
not be less than the amount stated herein to be then due and payable, provided
that the foregoing obligation to pay such additional amounts shall not apply:
(i) to any payment to any Lender hereunder unless such Lender
is, on the date hereof (or on the date it becomes a Lender hereunder as
provided in Section 12.06(b) hereof) and on the date of any change in
the Applicable Lending Office of such Lender, either entitled to submit
a Form 1001 (relating to such Lender and entitling it to a complete
exemption from withholding on all interest to be received by it
hereunder in respect of the Loans) or Form 4224 (relating to all
interest to be received by such Lender hereunder in respect of the
Loans),
(ii) to any U.S. Taxes to the extent imposed by reason of the
failure by such non-U.S. Person to comply with applicable
certification, information, documentation or other reporting
requirements concerning the nationality, residence, identity or
connections with the United States of America of such non-U.S. Person
(including the filing of Form 1001 or 4224, as appropriate) if such
compliance is required by statute or regulation of the United States of
America as a precondition to reduction of or relief or exemption from
such U.S. Taxes, or
(iii) to any tax assessment or other governmental charge which
is payable otherwise than by withholding or deduction from payments due
such non-U.S. Person hereunder.
For the purposes of this Section 5.07(a), (A) "U.S. Person" shall mean a
citizen, national or resident of the United States of America, a corporation,
partnership or other entity created or organized in or under any laws of the
United States of America or any State thereof, or any estate or trust that is
subject to U.S. Federal income taxation regardless of the source of its income,
(B) "U.S. Taxes" shall mean any present or future tax, assessment or other
charge or levy imposed by or on behalf of the United States of America or any
taxing authority thereof or therein, (C) "Form 1001" shall mean Form 1001
(Ownership, Exemption, or Reduced Rate Certificate) of the Department of the
Treasury of the United States of America and (D) "Form 4224" shall mean Form
4224 (Exemption from Withholding of Tax on Income Effectively Connected with the
Conduct of a Trade or Business in the United States) of the Department of the
Treasury of the United States of America (or in relation to either such Form
such successor and related forms as may from time to time be adopted by the
relevant taxing authorities of the United States of America to document a claim
to which such Form relates). Each of the Forms referred to in the foregoing
clauses (C) and (D) shall include such successor and related forms as may from
time to time be adopted by the relevant taxing authorities of the United States
of America to document a claim to which such Form relates.
(b) Within 30 days after paying any amount to the
Administrative Agent or any Lender from which it is required by law to make any
deduction or withholding, and within 30 days after it is required by law to
remit such deduction or withholding to any relevant taxing or other authority,
the Borrowers shall deliver to the Administrative Agent for delivery to such
non-U.S. Person evidence satisfactory to such Person of such deduction,
withholding or payment (as the case may be).
5.08 Replacement of Lenders. If any
Lender defaults in its obligations to make Loans pursuant to Section 2.01 hereof
or to fund unreimbursed drawings under Section 2.03 hereof or requests
compensation pursuant to Section 5.01 or 5.06 hereof (any such Lender so
defaulting or so requesting such compensation being herein called a "Requesting
Lender"), the Parent, upon three Business Days notice, may require that such
Requesting Lender transfer and assign all of its right, title and interest under
this Agreement and such Requesting Lender's Notes, if any, to any bank or other
financial institution (a "Proposed Lender") identified by the Parent that is
satisfactory to the Administrative Agent and the Issuing Banks (and, upon
request of the Parent, the Administrative Agent agrees to use reasonable efforts
to assist the Parent in identifying Proposed Lenders for this purpose) (a) if
such Proposed Lender agrees to assume all of the obligations of such Requesting
Lender hereunder, and to purchase all of such Requesting Lender's Loans
hereunder for consideration equal to the aggregate outstanding principal amount
of such Requesting Lender's Loans, together with interest thereon to the date of
such purchase, and satisfactory arrangements are made for payment to such
Requesting Lender of all other amounts payable hereunder to such Requesting
Lender on or prior to the date of such transfer (including any fees accrued
hereunder and all amounts payable under Section 5 hereof, including all amounts
payable under Section 5.05 hereof as if all of such Requesting Lender's Loans
were being prepaid in full on such date) and (b) if such Requesting Lender has
requested compensation pursuant to Section 5.01 or 5.06 hereof, such Proposed
Lender's aggregate requested compensation, if any, pursuant to said Section 5.01
or 5.06 with respect to such Requesting Lender's Loans is lower than that of the
Requesting Lender. Subject to the provisions of Section 12.06(b) hereof, such
Proposed Lender shall be a "Lender" for all purposes hereunder. Without
prejudice to the survival of any other agreement of the Obligors hereunder the
agreements of the Borrowers contained in Sections 5 and 12.03 hereof (without
duplication of any payments made to such Requesting Lender by the Parent or the
Proposed Lender) shall survive for the benefit of such Requesting Lender under
this Section 5.08 with respect to the time prior to such replacement.
Section 6. Guarantee.
6.01 The Guarantee.
(a) The Guarantors hereby jointly and severally guarantee to
each Lender and the Administrative Agent and their respective successors and
assigns the prompt payment in full when due (whether at stated maturity, by
acceleration or otherwise) of the principal of and interest on the Loans made by
the Lenders to, and the Notes held by each Lender of, the Borrowers and all
other amounts from time to time owing to the Lenders or the Administrative Agent
by the Borrowers under this Agreement and under the Notes and by any Obligor
under any of the other Credit Documents, and all obligations of the Parent or
any of its Subsidiaries to any Lender in respect of any Interest Rate Protection
Agreement, in each case strictly in accordance with the terms thereof (such
obligations being herein collectively called the "General Guaranteed
Obligations"). The Guarantors hereby further jointly and severally agree that if
any Borrower shall fail to pay in full when due (whether at stated maturity, by
acceleration or otherwise) any of the General Guaranteed Obligations, the
Guarantors will promptly pay the same, without any demand or notice whatsoever,
and that in the case of any extension of time of payment or renewal of any of
the General Guaranteed Obligations, the same will be promptly paid in full when
due (whether at extended maturity, by acceleration or otherwise) in accordance
with the terms of such extension or renewal.
(b) Without limiting the generality of Section 6.01(a) hereof,
each Revolving Credit Borrower hereby guarantees to each Revolving Credit Lender
and the Administrative Agent and their respective successors and assigns the
prompt payment in full when due (whether at stated maturity, by acceleration or
otherwise) of the principal of and interest on the Loans made by such Lenders
to, and the Notes held by each Lender of, the other Revolving Credit Borrowers
and all other amounts from time to time owing to the Lenders or the
Administrative Agent by such Borrowers under the Revolving Credit Facility under
this Agreement and under the Notes and by any Obligor under any of the other
Credit Documents, and all obligations of such Borrowers or any of their
respective Subsidiaries to any Lender in respect of any Interest Rate Protection
Agreement, in each case strictly in accordance with the terms thereof (such
obligations being herein collectively called the "Joint Obligations" and,
collectively with the General Guaranteed Obligations, the "Guaranteed
Obligations"). The Revolving Credit Borrowers hereby further jointly and
severally agree that if any other Revolving Credit Borrower shall fail to pay in
full when due (whether at stated maturity, by acceleration or otherwise) any of
the Joint Obligations, the other Revolving Credit Borrowers will promptly pay
the same, without any demand or notice whatsoever, and that in the case of any
extension of time of payment or renewal of any of the Joint Obligations, the
same will be promptly paid in full when due (whether at extended maturity, by
acceleration or otherwise) in accordance with the terms of such extension or
renewal.
6.02 Obligations Unconditional.
(a) The obligations of the Guarantors under Section 6.01(a)
hereof are absolute and unconditional, joint and several, irrespective of the
value, genuineness, validity, regularity or enforceability of the obligations of
the Borrowers under this Agreement, the Notes or any other agreement or
instrument referred to herein or therein, or any substitution, release or
exchange of any other guarantee of or security for any of the Guaranteed
Obligations, and, to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor,
it being the intent of this Section 6.02(a) that the obligations of the
Guarantors hereunder shall be absolute and unconditional, joint and several,
under any and all circumstances.
(b) The obligations of the Revolving Credit Borrowers under
Section 6.01(b) hereof are absolute and unconditional, joint and several,
irrespective of the value, genuineness, validity, regularity or enforceability
of the obligations of the other Revolving Credit Borrowers under this Agreement,
the Notes or any other agreement or instrument referred to herein or therein, or
any substitution, release or exchange of any other guarantee of or security for
any of the Joint Obligations, and, to the fullest extent permitted by applicable
law, irrespective of any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor,
it being the intent of this Section 6.02(b) that the obligations of each
Revolving Credit Borrower shall be absolute and unconditional, joint and
several, under any and all circumstances.
(c) Without limiting the generality of the foregoing, it is
agreed that the occurrence of any one or more of the following shall not alter
or impair the liability of the Guarantors hereunder which shall remain absolute
and unconditional as described above:
(i) at any time or from time to time, without notice to the
Guarantors, the time for any performance of or compliance with any of
the Guaranteed Obligations shall be extended, or such performance or
compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of
this Agreement or the Notes or any other agreement or instrument
referred to herein or therein shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations shall
be accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right under this
Agreement or the Notes or any other agreement or instrument referred to
herein or therein shall be waived or any other guarantee of any of the
Guaranteed Obligations or any security therefor shall be released or
exchanged in whole or in part or otherwise dealt with; or
(iv) any lien or security interest granted to, or in favor of,
the Administrative Agent or any Lender or Lenders as security for any
of the Guaranteed Obligations shall fail to be perfected.
The Guarantors hereby expressly waive diligence, presentment, demand of payment,
protest and all notices whatsoever, and any requirement that the Administrative
Agent or any Lender exhaust any right, power or remedy or proceed against any
Borrower under this Agreement or the Notes or any other agreement or instrument
referred to herein or therein, or against any other Person under any other
guarantee of, or security for, any of the Guaranteed Obligations.
6.03 Reinstatement. The obligations of the
Guarantors under this Section 6 shall be automatically reinstated if and to the
extent that for any reason any payment by or on behalf of the relevant Borrower
in respect of the relevant Guaranteed Obligations is rescinded or must be
otherwise restored by any holder of any of such Guaranteed Obligations, whether
as a result of any proceedings in bankruptcy or reorganization or otherwise and
the Guarantors jointly and severally agree that they will indemnify the
Administrative Agent and each Lender on demand for all reasonable costs and
expenses (including, without limitation, fees of counsel) incurred by the
Administrative Agent or such Lender in connection with such rescission or
restoration, including any such costs and expenses incurred in defending against
any claim alleging that such payment constituted a preference, fraudulent
transfer or similar payment under any bankruptcy, insolvency or similar law.
6.04 Subrogation. The Guarantors hereby jointly
and severally agree that until the payment and satisfaction in full of all
Guaranteed Obligations and the expiration and termination of the Commitments of
the Lenders under this Agreement they shall not exercise any right or remedy
arising by reason of any performance by them of their guarantee in Section 6.01
hereof, whether by subrogation or otherwise, against the Borrowers or any other
guarantor of any of the Guaranteed Obligations or any security for any of the
Guaranteed Obligations.
6.05 Remedies. The Guarantors jointly and
severally agree that, as between the Guarantors and the Lenders, the obligations
of the relevant Borrower under this Agreement and the Notes may be declared to
be forthwith due and payable as provided in Section 10 hereof (and shall be
deemed to have become automatically due and payable in the circumstances
provided in said Section 10) for purposes of Section 6.01 hereof notwithstanding
any stay, injunction or other prohibition preventing such declaration (or such
obligations from becoming automatically due and payable) as against such
Borrower and that, in the event of such declaration (or such obligations being
deemed to have become automatically due and payable), such obligations (whether
or not due and payable by such Borrower) shall forthwith become due and payable
by the Guarantors for purposes of said Section 6.01.
6.06 Continuing Guarantee. The
guarantee in this Section 6 is a continuing guarantee, and shall apply to all
Guaranteed Obligations whenever arising.
6.07 Rights of Contribution.
(a) Each Relevant Obligor hereby agrees, as between
themselves, that if any Relevant Obligor shall become an Excess Funding
Guarantor (as defined below) by reason of the payment by such Relevant Obligor
of any Guaranteed Obligations, each other Relevant Obligor shall, on demand of
such Excess Funding Guarantor (but subject to the next sentence), pay to such
Excess Funding Guarantor an amount equal to such Relevant Obligor's Pro Rata
Share (as defined below and determined, for this purpose, without reference to
the Properties, debts and liabilities of such Excess Funding Guarantor) of the
Excess Payment (as defined in paragraph (b) below) in respect of such Guaranteed
Obligations. The payment obligation of a Relevant Obligor to any Excess Funding
Guarantor under this Section 6.07 shall be subordinate and subject in right of
payment to the prior payment in full of the obligations of such Relevant Obligor
under the other provisions of this Section 6 and such Excess Funding Guarantor
shall not exercise any right or remedy with respect to such excess until payment
and satisfaction in full of all of such obligations.
(b) For purposes of this Section 6.07: (i) "Relevant Obligor"
shall mean each Borrower and each of the Subsidiary Guarantors; (ii) "Excess
Funding Guarantor" shall mean, in respect of any Guaranteed Obligations, a
Relevant Obligor that has paid an amount in excess of its Pro Rata Share of such
Guaranteed Obligations; (iii) "Excess Payment" shall mean, in respect of any
Guaranteed Obligations, the amount paid by an Excess Funding Guarantor in excess
of its Pro Rata Share of such Guaranteed Obligations; (iv) "Pro Rata Share"
shall mean, for any Relevant Obligor, the ratio (expressed as a percentage) of
the amount of such Relevant Obligor's Net Assets to the amount of the aggregate
Net Assets of all of the Relevant Obligors, in each case determined as of (A)(x)
with respect to any Relevant Obligor that was a party to the Original Credit
Agreement on the Closing Date (as defined in the Original Credit Agreement),
such Closing Date or (y) with respect to any other Relevant Obligor, the date
such Relevant Obligor becomes a Relevant Obligor hereunder or (B) the date any
demand is made hereunder in respect of the Guaranteed Obligations, whichever
date results in the higher amount (the "Determination Date"); and (v) "Net
Assets" of any Relevant Obligor shall mean the amount by which the aggregate
present fair saleable value of all assets of such Relevant Obligor (excluding
any shares of stock of any other Relevant Obligor) exceeds the amount of all the
debts and liabilities of such Relevant Obligor (including contingent,
subordinated, unmatured and unliquidated liabilities, but excluding (x) the
obligations of such Relevant Obligor under this Section 6, assuming the full
utilization of permitted borrowings under this Agreement and after giving
effect, on a pro forma basis (but without duplication), to all such obligations
of such Relevant Obligor to be incurred or assumed as of the Closing Date (as
defined in the Original Credit Agreement) and (y) the obligations of such
Relevant Obligor in respect of its guarantee of the Senior Subordinated Debt,
assuming all such obligations are in existence as of the date hereof and after
giving effect to all such obligations which shall become effective as of such
Closing Date).
6.08 Limitation on Guarantee Obligations.
Notwithstanding any other provision of this Agreement to
the contrary, in any action or proceeding involving any state corporate law or
any state or Federal bankruptcy, insolvency, reorganization or other law
affecting the rights of creditors generally, if the obligations of any Relevant
Obligor hereunder would otherwise be held or determined to be void, invalid or
unenforceable on account of the amount of its liability under this Section 6,
then notwithstanding any other provision of this Agreement to the contrary, the
amount of such liability shall, without any further action by such Relevant
Obligor or any other Person, be automatically limited and reduced to the highest
amount that is valid and enforceable and not subordinated to the claims of other
creditors as determined in such action or proceeding.
Section 7. Conditions Precedent.
7.01 Conditions to Effectiveness.
The effectiveness of this Agreement (and the amendment and
restatement of the Existing Credit Agreement to be effected hereby), and the
obligation of any Lender to extend credit hereunder on the Restatement Effective
Date, are subject to the receipt by the Administrative Agent of the following
documents, each of which shall be satisfactory to the Administrative Agent (and
to the extent specified below, to each Lender or the Majority Lenders) in form
and substance:
(a) Corporate Documents. The following documents, each
certified as indicated below:
(i) for each Obligor, a copy of charter documents,
by-laws and resolutions relating to such Obligor, certified as
true and complete by the Secretary or an Assistant Secretary
of such Obligor;
(ii) a certificate of the Secretary or an Assistant
Secretary of Holdings, dated the Restatement Effective Date
and certifying as to the incumbency and specimen signature of
each officer of each Obligor executing such of the Loan
Documents to which such Obligor is intended to be a party and
each other document to be delivered by such Obligor from time
to time in connection therewith (and the Administrative Agent
and each Lender may conclusively rely on such certificate
until it receives notice in writing from such Obligor); and
(iii) for each Obligor, such other proof of corporate
or other authority, charter documents, good standing
certificates and evidence of incumbency as the Administrative
Agent may reasonably request.
(b) Officer's Certificate. A certificate of a Responsible
Officer of the Parent, dated the Restatement Effective Date, to the
effect set forth in the first sentence of Section 7.02 hereof.
(c) Notes. The Notes, duly completed and executed for each
Lender.
(d) Opinions of Special New York Counsel to the Obligors.
Opinions, dated the Restatement Effective Date, of Sullivan & Cromwell,
special New York counsel to certain of the Obligors, and such other
counsel satisfactory to the Administrative Agent, each in substantially
the form delivered pursuant to Section 7.01(d) of the Original Credit
Agreement, with such changes thereto as the Administrative Agent may
reasonably request and authorize (and each Obligor hereby instructs
such counsel to deliver such opinions to the Lenders and the
Administrative Agent).
(e) Opinion of Special New York Counsel to NatWest. An
opinion, dated the Restatement Effective Date, of Milbank, Tweed,
Hadley & McCloy, special New York counsel to NatWest, in substantially
the form delivered pursuant to Section 7.01(f) of the Original Credit
Agreement, with such changes thereto as the Administrative Agent may
reasonably request (and NatWest hereby instructs such counsel to
deliver such opinion to the Lenders and the Administrative Agent).
(f) Amendment to the Pledge and Security Agreement. An
amendment to the Pledge and Security Agreement, in form and substance
satisfactory to the Administrative Agent, in order to give effect to
the amendment and restatement of the Existing Credit Agreement as
effected hereby (and such other modifications thereto as the
Administrative Agent may reasonably request), duly executed and
delivered by the Obligors and the Administrative Agent. In addition,
the Obligors shall have taken such other action as the Administrative
Agent shall have requested in order to perfect the security interests
created pursuant to the Security Documents to the extent such actions
have not already been taken pursuant to the Existing Credit Agreement.
The Lenders hereby authorize the Administrative Agent to enter into
such amendment.
(g) Pricing Certificate. A certificate of a Responsible
Officer of the Parent, dated the Restatement Effective Date, as to the
Total Leverage Ratio referred to in the definition of "Applicable
Pricing Level" in Section 1.01 hereof.
(h) Other Documents. Such other documents as the
Administrative Agent or any Lender or special New York counsel to the
Administrative Agent may reasonably request.
The effectiveness of this Agreement (the amendment and restatement of the
Existing Credit Agreement contemplated hereby) and the obligation of any Lender
to make its initial extension of credit hereunder is also subject to the payment
or delivery by the Parent of such fees and other consideration as the Parent
shall have agreed to pay or deliver to any Lender or an affiliate thereof or the
Administrative Agent in connection herewith, including, without limitation, the
reasonable fees and expenses of Milbank, Tweed, Hadley & McCloy, special New
York counsel to NatWest, in connection with the negotiation, preparation,
execution and delivery of this Agreement and the Notes and the other Credit
Documents and the making of the extensions of credit hereunder (to the extent
that statements for such fees and expenses have been delivered to the Parent).
7.02 Initial and Subsequent Extensions of Credit.
The obligation of the Lenders to make any
Loan or otherwise extend any credit to either Obligor upon the occasion of each
borrowing or other extension of credit hereunder (and upon the amendment and
restatement of the Existing Credit Agreement to be effected hereby) is subject
to the further conditions precedent that, both immediately prior to the making
of such Loan or other extension of credit (and such amendment and restatement)
and also after giving effect thereto and to the intended use thereof:
(a) no Default shall have occurred and be continuing; and
(b) the representations and warranties made by each Obligor in
Section 8 hereof and in each other Credit Document to which such
Obligor is a party, shall be true and complete in all material respects
on and as of the date of the making of such Loan or other extension of
credit (and after giving effect thereto) with the same force and effect
as if made on and as of such date (or, if any such representation or
warranty is expressly stated to have been made as of a specific date,
as of such specific date).
Each notice of borrowing or request for the issuance of a Letter of Credit by a
Borrower hereunder shall constitute a certification by such Borrower to the
effect set forth in the preceding sentence (both as of the date of such notice
or request and, unless such Borrower otherwise notifies the Administrative Agent
prior to the date of such borrowing or issuance, as of the date of such
borrowing or issuance).
7.03 Certain Determinations. For
purposes of determining compliance with the conditions specified in Section 7.01
hereof, each Lender shall be deemed to be consented to, approved or accepted or
to be satisfied with each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to the Lenders unless
an officer of the Administrative Agent responsible for the transactions
contemplated by the Credit Documents shall have received notice from such Lender
prior to the Restatement Effective Date specifying its objection thereto, and
such Lender shall not have made available to the Administrative Agent such
Lender's ratable portion of the Loans to be made by it on such date.
Section 8. Representations and Warranties. Each Obligor
represents and warrants to the Administrative Agent and the Lenders that:
8.01 Corporate Existence. Each Obligor
and its Subsidiaries: (a) is a corporation, partnership or other entity duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization; (b) has all requisite corporate or other
power, and has all material governmental licenses, authorizations, consents and
approvals necessary to own its assets and carry on its business as now being or
as proposed to be conducted except where the failure to have the same could not
reasonably be expected to have a Material Adverse Effect; and (c) is qualified
to do business and is in good standing as a foreign entity in all jurisdictions
in which the nature of the business conducted by it requires such qualification
except where failure so to qualify could not reasonably be expected (either
individually or in the aggregate) to have a Material Adverse Effect.
8.02 Financial Condition. The Parent
has heretofore furnished to each of the Lenders the following:
(a) consolidated and consolidating balance sheets of the
Parent and its Subsidiaries as at December 31, 1996 and the related
consolidated and consolidating statements of income, retained earnings
and cash flows of the Parent and its Subsidiaries for the fiscal year
ended on said date, with the opinion thereon (in the case of said
consolidated balance sheet and statements) of Coopers & Lybrand L.L.P.,
and the unaudited consolidated and consolidating balance sheets of the
Parent and its Subsidiaries as at September 30, 1997 and the related
consolidated and consolidating statements of income, retained earnings
and cash flows of the Parent and its Subsidiaries for the nine-month
period ended on such date; and
(b) consolidated and consolidating balance sheets of CAC,
Alflex and its Subsidiaries as at September 30, 1997 and the related
consolidated and consolidating statements of income, retained earnings
and cash flows of CAC, Alflex and its Subsidiaries for the nine-month
period ended on such date.
All such financial statements fairly present, in all material respects, the
consolidated financial condition of the Parent and its Subsidiaries and (in the
case of said consolidating financial statements) the respective unconsolidated
financial condition of the Parent and its Subsidiaries as at said dates and the
consolidated and unconsolidated results of their respective operations for the
fiscal years and periods ended on said dates (subject, in the case of such
financial statements as at September 30, 1997, to normal year-end audit
adjustments), all in accordance with generally accepted accounting principles
and practices applied on a consistent basis. Except as otherwise disclosed to
the Administrative Agent or the Lenders in writing prior to the date hereof,
none of the Parent nor any of its Subsidiaries has on the date hereof any
material contingent liabilities, liabilities for taxes, unusual forward or
long-term commitments or unrealized or anticipated losses from any unfavorable
commitments, except as referred to or reflected or provided for in said balance
sheets as at said dates. Since December 31, 1996:
(i) there has been no material adverse change in the business,
properties, assets, operations, conditions (financial or otherwise), or
prospects of Alflex and its Subsidiaries, taken as a whole; and
(ii) there has been no material adverse change in the
business, properties, assets, operations, conditions (financial or
otherwise), or prospects of the Parent and its Subsidiaries taken as a
whole.
8.03 Litigation. Except as disclosed in Schedule
II hereto, there are no legal or arbitral proceedings, or any proceedings by or
before any governmental or regulatory authority or agency, now pending or (to
the knowledge of any Obligor) threatened against any Obligor or any of its
Subsidiaries that could reasonably be expected (either individually or in the
aggregate) to have a Material Adverse Effect.
8.04 No Breach. Except as disclosed in Schedule
III hereto, none of the execution and delivery of this Agreement and the Notes
and the other Credit Documents, the consummation of the transactions herein and
therein contemplated or compliance with the terms and provisions hereof and
thereof will conflict with or result in a breach of, or require any consent
under, the charter or by-laws of any Obligor or any of its Subsidiaries, or any
applicable law or regulation, or any order, writ, injunction or decree of any
court or governmental authority or agency, or any material agreement or
instrument to which it or any of its Subsidiaries is a party or by which any of
them or any of their Property is bound or to which any of them is subject, or
constitute a default under any such agreement or instrument, or (except for the
Liens created pursuant to the Security Documents) result in the creation or
imposition of any Lien upon any Property of any Obligor or any of its
Subsidiaries pursuant to the terms of any such agreement or instrument.
8.05 Action. Each Obligor and each of its
Subsidiaries has all necessary corporate power, authority and legal right to
execute, deliver and perform its obligations under each of the Credit Documents
to which it is a party; the execution, delivery and performance by each Obligor
of each of the Credit Documents to which it is a party have been duly authorized
by all necessary corporate action on its part; and this Agreement has been duly
and validly executed and delivered by each Obligor and constitutes, and each of
the Notes and the other Credit Documents to which it is a party when executed
and delivered by such Obligor (in the case of the Notes, for value) will
constitute, its legal, valid and binding obligation, enforceable against each
Obligor in accordance with its terms.
8.06 Approvals. Except for filings and recordings
in respect of the Liens created pursuant to the Security Documents and the other
filings and recordings identified on Schedule IV hereto, no authorizations,
approvals or consents of, and no filings or registrations with, any governmental
or regulatory authority or agency, or any securities exchange, are necessary for
the execution, delivery or performance by any Obligor of this Agreement or any
of the other Credit Documents to which it is a party or for the legality,
validity or enforceability hereof or thereof.
8.07 Use of Credit. No Obligor nor any of its
Subsidiaries is engaged principally, or as one of its important activities, in
the business of extending credit for the purpose, whether immediate, incidental
or ultimate, of buying or carrying Margin Stock. Neither the making of any of
the Loans nor issuance of the Letters of Credit nor the use of the proceeds
thereof will violate or be inconsistent with the provisions of Regulations G, U
or X.
8.08 ERISA. Each Plan, and, to the knowledge of the
Parent, each Multiemployer Plan, is in compliance in all material respects with,
and has been administered in all material respects in compliance with, the
applicable provisions of ERISA, the Code and any other Federal or State law,
except where such non-compliance thereof could not reasonably be expected to
lead to a material liability, and no event or condition has occurred and is
continuing as to which any Obligor would be under an obligation to furnish a
report to the Lenders under Section 9.01(e) hereof, unless such event or
condition could not reasonably be expected to lead to a material liability.
8.09 Taxes.
(a) The Parent and its Subsidiaries are members of an
affiliated group of corporations filing consolidated returns for Federal income
tax purposes, of which the Parent is the "common parent" (within the meaning of
Section 1504 of the Code) of such group.
(b) The Parent and its Subsidiaries have filed all Federal
income tax returns and all other material tax returns that are required to be
filed by them and have paid all taxes due pursuant to such returns or pursuant
to any assessment received by them or any of their respective Subsidiaries,
subject to any extensions granted so long as no penalty shall be due in relation
thereto. The charges, accruals and reserves on the books of the Parent and its
Subsidiaries in respect of taxes and other governmental charges are, in the
opinion of the Parent, adequate. Neither the Parent nor any of its Subsidiaries
has given or been requested to give a waiver of the statute of limitations
relating to the payment of any Federal, state, local and foreign taxes or other
impositions.
8.10 Investment Company Act. Neither
the Parent nor any of its Subsidiaries is an "investment company", or a company
"controlled" by an "investment company", within the meaning of the Investment
Company Act of 1940, as amended.
8.11 Public Utility Holding Company Act.
Neither the Parent nor any of its Subsidiaries is a
"holding company", or an "affiliate" of a "holding company" or a "subsidiary
company" of a "holding company", within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
8.12 Material Agreements and Liens.
(a) Part A of Schedule V hereto is a complete and correct list
of each credit agreement, loan agreement, indenture, purchase agreement,
guarantee, letter of credit or other arrangement providing for or otherwise
relating to any Indebtedness or any extension of credit (or commitment for any
extension of credit) to, or guarantee by, the Parent and its Subsidiaries
outstanding on the date hereof, or that (after giving effect to the transactions
contemplated to occur on or before the Restatement Effective Date) will be
outstanding on the Restatement Effective Date, and the aggregate principal or
face amount outstanding or that may become outstanding under each such
arrangement is correctly described in Part A of said Schedule V.
(b) Part B of Schedule V hereto is a complete and correct list
of each Lien securing Indebtedness of any Person outstanding on the date hereof,
or that (after giving effect to the transactions contemplated to occur on or
before the Restatement Effective Date) will be outstanding on the Restatement
Effective Date, covering any Property of the Parent or any of its Subsidiaries,
and the aggregate Indebtedness secured (or that may be secured) by each such
Lien and the Property covered by each such Lien is correctly described in Part B
of said Schedule V.
8.13 Environmental Matters. Except as
set forth on Schedule VI hereto or as could not reasonably be expected (either
individually or in the aggregate) to have a Material Adverse Effect:
(a) Each of the Parent and its Subsidiaries has obtained all
environmental, health and safety permits, licenses and other
authorizations required under all Environmental Laws to carry on its
business as being conducted, and each of such permits, licenses and
authorizations is in full force and effect and each of the Parent and
its Subsidiaries is in compliance with the terms and conditions
thereof, and is also in compliance with all other limitations,
restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules and timetables contained in any applicable
Environmental Law or in any regulation, code, plan, order, decree,
judgment, injunction, notice or demand letter issued, entered,
promulgated or approved thereunder.
(b) No notice, notification, demand, request for information,
citation, summons or order has been issued, no complaint has been
filed, no penalty has been assessed and, to the Parent's or any of its
Subsidiaries' knowledge, no investigation or review is pending or
threatened by any governmental or other entity with respect to any
alleged failure by the Parent or any of its Subsidiaries to have any
environmental, health or safety permit, license or other authorization
required under any Environmental Law in connection with the conduct of
the business of the Parent or any of its Subsidiaries or with respect
to any generation, treatment, storage, recycling, transportation,
discharge or disposal, or any Release of any Hazardous Materials
generated by the Parent or any of its Subsidiaries.
(c) Neither the Parent nor any of its Subsidiaries owns,
operates or leases a treatment, storage or disposal facility requiring
a permit under the Resource Conservation and Recovery Act of 1976, as
amended; and
(i) no polychlorinated biphenyls (PCB's) are or have
been present at any site or facility now or previously owned,
operated or leased by the Parent or any of its Subsidiaries;
(ii) no Hazardous Materials have been Released at, on
or under any site or facility now or previously owned,
operated or leased by the Parent or any of its Subsidiaries in
a reportable quantity established by statute, ordinance, rule,
regulation or order; and
(iii) no Hazardous Materials have been otherwise
Released at, on or under any site or facility now or
previously owned, operated or leased by the Parent or any of
its Subsidiaries.
(d) Neither the Parent nor any of its Subsidiaries has
transported or arranged for the transportation of any Hazardous
Material to any location that is listed on the National Priorities List
("NPL") under the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended ("CERCLA"), listed for possible
inclusion on the NPL by the Environmental Protection Agency in the
Comprehensive Environmental Response and Liability Information System,
as provided for by 40 C.F.R. ss. 300.5 ("CERCLIS"), or on any similar
state or local list or that is the subject of Federal, state or local
enforcement actions or other investigations that could reasonably be
expected to lead to Environmental Claims against the Parent or any of
its Subsidiaries.
(e) No Hazardous Material generated by the Parent or any of
its Subsidiaries has been recycled, treated, stored, disposed of or
Released by the Parent or any of its Subsidiaries in violation of
Environmental Law or that could reasonably be expected to give rise to
liability under Environmental Law.
(f) No oral or written notification of a Release of a
Hazardous Material has been filed by or on behalf of the Parent or any
of its Subsidiaries and no site or facility now or previously owned,
operated or leased by the Parent or any of its Subsidiaries is listed
or proposed for listing on the NPL, CERCLIS or any similar state list
of sites requiring investigation or clean-up.
(g) No Liens have arisen under or pursuant to any
Environmental Laws on any site or facility owned, operated or leased by
the Parent or any of its Subsidiaries, and no government action has
been taken or is known by the Parent or any such Subsidiary to be in
process that could reasonably be expected to subject any such site or
facility to such Liens and neither the Parent nor any of its
Subsidiaries would be required to place any notice or restriction
relating to the presence of Hazardous Materials at any site or facility
owned by it in any deed to the real property on which such site or
facility is located.
(h) The Parent and its Subsidiaries have made available to the
Administrative Agent certain environmental investigations, studies,
audits, tests, reviews or other analyses conducted by or that are in
the possession of the Parent or any of its Subsidiaries with respect to
all matters relating to facts, circumstances or conditions at or
affecting any site or facility now or previously owned, operated or
leased by the Parent or any of its Subsidiaries and that, to the
Parent's knowledge, could reasonably be expected (either individually
or in the aggregate) to have resulted in a Material Adverse Effect.
8.14 Capitalization.
(a) Part A of Schedule VII hereto correctly sets forth the
authorized Capital Stock of the Parent on the date hereof. All of the issued and
outstanding shares of each class of Capital Stock of the Parent on the date
hereof are duly and validly issued, fully paid and nonassessable. On the date
hereof, except as disclosed in Part B of said Schedule VII, (x) there are no
outstanding Equity Rights with respect to the Parent and there are no
outstanding obligations of the Parent or any or any of its Subsidiaries to
repurchase, redeem, or otherwise acquire any shares of Capital Stock of the
Parent, and (y) are there no outstanding obligations of the Parent or any of its
Subsidiaries to make payments to any Person, such as "phantom stock" payments,
where the amount thereof is calculated with reference to the fair market value
or equity value of the Parent or any of its Subsidiaries.
(b) Part A of Schedule VIII hereto correctly sets forth the
authorized Capital Stock of Holdings on the date hereof. All of the issued and
outstanding shares of each class of Capital Stock of Holdings on the date hereof
are duly and validly issued, fully paid and nonassessable. On the date hereof
all of such issued and outstanding shares of Capital Stock are owned
beneficially and of record by the Parent. On the date hereof, except as
disclosed in Part B of said Schedule VIII, there are no outstanding Equity
Rights with respect to Holdings and there are no outstanding obligations of the
Parent or any or any of its Subsidiaries to repurchase, redeem, or otherwise
acquire any shares of Capital Stock of Holdings.
(c) Part A of Schedule IX hereto correctly sets forth the
authorized Capital Stock of CAC on the date hereof. All of the issued and
outstanding shares of each class of Capital Stock of CAC on the date hereof are
duly and validly issued, fully paid and nonassessable. On the date hereof all of
such issued and outstanding shares of Capital Stock are owned beneficially and
of record by Holdings. On the date hereof, except as disclosed in Part B of said
Schedule IX, there are no outstanding Equity Rights with respect to CAC and
there are no outstanding obligations of the Parent or any or any of its
Subsidiaries to repurchase, redeem, or otherwise acquire any shares of Capital
Stock of CAC.
(d) Part A of Schedule X hereto correctly sets forth the
authorized Capital Stock of Alflex on the date hereof. All of the issued and
outstanding shares of each class of Capital Stock of Alflex are fully paid and
nonassessable. On the date hereof all of such issued and outstanding shares of
Capital Stock are owned beneficially and of record by Holdings. On the date
hereof, except as disclosed in Part B of said Schedule X, (x) there are no
outstanding Equity Rights with respect to the Alflex and there are no
outstanding obligations of the Parent or any of its Subsidiaries to repurchase,
redeem, or otherwise acquire any shares of Capital Stock of Alflex and (y) are
there no outstanding obligations of the Parent or any of its Subsidiaries to
make payments to any Person, such as "phantom stock" payments, where the amount
thereof is calculated with reference to the fair market value or equity value of
Alflex or any of its Subsidiaries.
(e) Part A of Schedule XI hereto correctly sets forth the
authorized Capital Stock of CACI on the date hereof. All of the issued and
outstanding shares of each class of Capital Stock of CACI are fully paid and
nonassessable. On the date hereof all of such issued and outstanding shares of
Capital Stock are owned beneficially and of record by Alflex. On the date
hereof, except as disclosed in Part B of said Schedule XI, (x) there are no
outstanding Equity Rights with respect to CACI and there are no outstanding
obligations of the Parent or any of its Subsidiaries to repurchase, redeem, or
otherwise acquire any shares of Capital Stock of CACI and (y) are there no
outstanding obligations of the Parent or any of its Subsidiaries to make
payments to any Person, such as "phantom stock" payments, where the amount
thereof is calculated with reference to the fair market value or equity value of
CACI or any of its Subsidiaries.
8.15 Subsidiaries, Etc.
(a) Set forth in Part A of Schedule XII hereto is a complete
and correct list of all of the Subsidiaries of the Parent on the date hereof,
together with, for each such Subsidiary, (i) the jurisdiction of organization of
such Subsidiary, (ii) each Person holding ownership interests in such Subsidiary
and (iii) the nature of the ownership interests held by each such Person and the
percentage of ownership of such Subsidiary represented by such ownership
interests. Except as disclosed in Part A of said Schedule XII, as of the date
hereof, (x) each of the Parent and its Subsidiaries owns, free and clear of
Liens (other than Liens created pursuant to the Security Documents), and has the
unencumbered right to vote, all outstanding ownership interests in each Person
shown to be held by it in Part A of said Schedule XII, (y) all of the issued and
outstanding Capital Stock of each such Person organized as a corporation is
validly issued, fully paid and nonassessable and (z) there are no outstanding
Equity Rights with respect to such Person.
(b) Set forth in Part B of Schedule XII hereto is a complete
and correct list of all Investments (other than Investments disclosed in Part A
of said Schedule XII) held by the Parent or any of its Subsidiaries on the date
hereof and, for each such Investment, (x) the identity of the Person or Persons
holding such Investment and (y) the nature of such Investment. Except as
disclosed in Part B of said Schedule XII, each of the Parent and its
Subsidiaries owns, free and clear of all Liens (other than Liens created
pursuant to the Security Documents), all such Investments.
(c) None of the Subsidiaries of the Parent is, on the date
hereof, subject to any indenture, agreement, instrument or other arrangement of
the type described in Section 9.16(c) hereof.
8.16 Title to Assets. Except as disclosed
in Schedule XIII hereto, each of the Parent and its Subsidiaries owns and has on
the date hereof good and marketable title (subject only to Liens permitted by
Section 9.06 hereof) to the Properties shown to be owned in the most recent
financial statements referred to in Section 8.02 hereof (other than Properties
disposed of in the ordinary course of business or otherwise permitted to be
disposed of pursuant to Section 9.05 hereof). Each of the Parent and its
Subsidiaries owns and has on the date hereof good and marketable title to, or
(in the case of any real property leases), a valid and subsisting leasehold
estate in and to, and enjoys on the date hereof peaceful and undisturbed
possession of, all Properties (subject only to Liens permitted by Section 9.06
hereof) that are necessary for the operation and conduct of its businesses.
8.17 True and Complete Disclosure.
The information, reports, financial statements, exhibits and
schedules furnished in writing by or on behalf of the Obligors to the
Administrative Agent or any Lender in connection with the negotiation,
preparation or delivery of this Agreement and the other Credit Documents or
included herein or therein or delivered pursuant hereto or thereto, when taken
as a whole do not contain any untrue statement of material fact or omit to state
any material fact necessary to make the statements herein or therein, in light
of the circumstances under which they were made, not misleading. All written
information furnished after the date hereof by the Parent and its Subsidiaries
to the Administrative Agent and the Lenders in connection with this Agreement
and the other Credit Documents and the transactions contemplated hereby and
thereby will be true, complete and accurate in every material respect, or (in
the case of projections) based on reasonable estimates, on the date as of which
such information is stated or certified. There is no fact known to any Obligor
that could reasonably be expected (either individually or in the aggregate) to
have a Material Adverse Effect that has not been disclosed herein, in the other
Credit Documents or in a report, financial statement, exhibit, schedule,
disclosure letter or other writing furnished to the Lenders for use in
connection with the transactions contemplated hereby or thereby.
8.18 Real Property. Set forth on Schedule XIV
hereto is a list, as of the date hereof, of all of the real property interests
held by the Parent and its Subsidiaries, indicating in each case whether the
respective Property is owned or leased, the identity of the owner or lessee and
the location of the respective Property.
8.19 Security Documents. The Security
Documents create, as security for the obligations purported to be secured
thereby, a valid and enforceable perfected security interest in and Lien on all
of the Properties to be covered thereby in favor of the Administrative Agent,
superior to and prior to the right of all third Persons and subject to no other
Liens (other than Liens permitted under Section 9.06 hereof).
Section 9. Covenants of the Obligors
Each Obligor covenants and agrees with the Lenders and the
Administrative Agent that, so long as any Commitment, Loan or Letter of Credit
Liability is outstanding and until payment in full of all amounts payable by the
Borrowers hereunder:
9.01 Financial Statements, Etc.
The Parent (for itself and on behalf of each other Obligor) shall deliver to
each of the Lenders:
(a) as soon as available and in any event within 45 days after
the end of each quarterly fiscal period of each fiscal year of the
Parent, consolidated and consolidating statements of income, retained
earnings and cash flows of the Parent and its Subsidiaries for such
period and for the period from the beginning of the respective fiscal
year to the end of such period, and the related consolidated and
consolidating balance sheets of the Parent and its Subsidiaries as at
the end of such period, setting forth in each case in comparative form
the corresponding consolidated and consolidating figures for the
corresponding periods in the preceding fiscal year accompanied by a
certificate of a Responsible Officer of the Parent, which certificate
shall state that said consolidated financial statements fairly present
in all material respects the consolidated financial condition and
results of operations of the Parent and its Subsidiaries, and said
consolidating financial statements fairly present in all material
respects the respective individual unconsolidated financial condition
and results of operations of the Parent and of each of its
Subsidiaries, in each case in accordance with generally accepted
accounting principles, consistently applied, as at the end of, and for,
such period (subject to normal year-end audit adjustments);
(b) as soon as available and in any event within 90 days after
the end of each fiscal year of the Parent, consolidated and
consolidating statements of income, retained earnings and cash flows of
the Parent and its Subsidiaries for such fiscal year and the related
consolidated and consolidating balance sheets of the Parent and its
Subsidiaries as at the end of such fiscal year, setting forth in each
case in comparative form the corresponding consolidated and
consolidating figures for the preceding fiscal year, and accompanied
(i) in the case of said consolidated statements and balance sheet of
the Parent, by an opinion thereon of independent certified public
accountants of recognized national standing, which opinion shall state
that said consolidated financial statements fairly present in all
material respects the consolidated financial condition and results of
operations of the Parent and its Subsidiaries as at the end of, and
for, such fiscal year in accordance with generally accepted accounting
principles, and a statement of such accountants to the effect that, in
making the examination necessary for their opinion, nothing came to
their attention that caused them to believe that the Parent was not in
compliance with Sections 9.07(g), 9.09, 9.10 and 9.11 hereof, insofar
as such Sections relate to accounting matters, and (ii) in the case of
said consolidating statements and balance sheets, by a certificate of a
senior financial officer of the Parent, which certificate shall state
that said consolidating financial statements fairly present in all
material respects the respective individual unconsolidated financial
condition and results of operations of the Parent and of each of its
Subsidiaries, in each case in accordance with generally accepted
accounting principles, consistently applied, as at the end of, and for,
such fiscal year;
(c) promptly upon their becoming available, copies of all
registration statements and regular periodic reports, if any, that the
Parent or any of its Subsidiaries shall have filed with the Commission
(or any governmental agency substituted therefor) or any national
securities exchange;
(d) promptly upon the mailing thereof to the shareholders of
the Parent generally or to holders of Subordinated Indebtedness or
Senior Subordinated Debt generally, copies of all financial statements,
reports and proxy statements so mailed;
(e) as soon as possible, and in any event within 15 days after
any Obligor knows or has reason to believe that any of the events or
conditions specified below with respect to any Plan or Multiemployer
Plan has occurred or exists, a statement signed by a Responsible
Officer of the Parent setting forth details respecting such event or
condition and the action, if any, that the Parent or its ERISA
Affiliate proposes to take with respect thereto (and a copy of any
report or notice required to be filed with or given to the PBGC by the
Parent or an ERISA Affiliate with respect to such event or condition):
(i) any reportable event, as defined in Section
4043(c) of ERISA and the regulations issued thereunder, with
respect to a Plan, as to which the PBGC has not by regulation
waived the requirement of Section 4043(a) of ERISA that it be
notified within 30 days of the occurrence of such event
(provided that a failure to meet the minimum funding standard
of Section 412 of the Code or Section 302 of ERISA, including,
without limitation, the failure to make on or before its due
date a required installment under Section 412(m) of the Code
or Section 302(e) of ERISA, shall be a reportable event
regardless of the issuance of any waivers in accordance with
Section 412(d) of the Code); and any request for a waiver
under Section 412(d) of the Code for any Plan;
(ii) the distribution under Section 4041(c)(1)(A) of
ERISA of a notice of intent to terminate any Plan or any
action taken by any Obligor or an ERISA Affiliate to terminate
any Plan;
(iii) the institution by the PBGC of proceedings
under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan, or the
receipt by any Obligor or any ERISA Affiliate of a notice from
a Multiemployer Plan that such action has been taken by the
PBGC with respect to such Multiemployer Plan;
(iv) the complete or partial withdrawal from a
Multiemployer Plan by any Obligor or any ERISA Affiliate that
results in liability under Section 4201 or 4204 of ERISA
(including the obligation to satisfy secondary liability as a
result of a purchaser default) or the receipt by any Obligor
or any ERISA Affiliate of notice from a Multiemployer Plan
that it is in reorganization or insolvency pursuant to Section
4241 or 4245 of ERISA or that it intends to terminate or has
terminated under Section 4041A of ERISA;
(v) the institution of a proceeding by a fiduciary of
any Multiemployer Plan against any Obligor or any ERISA
Affiliate to enforce Section 515 of ERISA, which proceeding is
not dismissed within 30 days; and
(vi) the adoption of an amendment to any Plan that,
pursuant to Section 401(a)(29) of the Code or Section 307 of
ERISA, would result in the loss of tax-exempt status of the
trust of which such Plan is a part if any Obligor or an ERISA
Affiliate fails to timely provide security to the Plan in
accordance with the provisions of said Sections;
(f) promptly after any Responsible Officer of any Obligor
knows or has reason to believe that any Default has occurred, a notice
of such Default describing the same in reasonable detail and, together
with such notice or as soon thereafter as possible, a description of
the action that the Obligors have taken or propose to take with respect
thereto; and
(g) from time to time such other information regarding the
financial condition, operations, business or prospects of the Parent or
any of its Subsidiaries (including, without limitation, any Plan or
Multiemployer Plan and any reports or other information required to be
filed under ERISA) as any Lender or the Administrative Agent may
reasonably request.
The Parent will furnish to each Lender, at the time it furnishes each set of
financial statements pursuant to paragraph (a) or (b) above, (i) a certificate
of a Responsible Officer of the Parent (x) to the effect that no Default has
occurred and is continuing (or, if any Default has occurred and is continuing,
describing the same in reasonable detail and describing the action that the
Obligors have has taken or propose to take with respect thereto) and (y) setting
forth in reasonable detail the computations necessary to determine (A) whether
the Obligors are in compliance with Sections 9.07(g), 9.08(i), 9.09, 9.10 and
9.11 hereof as of the end of the respective quarterly fiscal period or fiscal
year and (B) if the Parent shall have consummated any Stock Repurchase or any
repurchase or redemption of Subordinated Indebtedness during the fiscal quarter
ending as of the date of the balance sheet included with such financial
statements, whether the Obligors were in compliance with the requirement of
Section 9.09(b)(iii) or Section 9.12(c) hereof, respectively, as of the date of
each such Stock Repurchase or such repurchase or repurchase of Subordinated
Indebtedness, as the case may be; and (ii) the certificate referred to in the
definition of "Applicable Pricing Level" in Section 1.01 hereof setting forth in
reasonable detail the computation of the Total Leverage Ratio as at the end of
the respective quarterly fiscal period.
9.02 Litigation. The Parent (for itself and on
behalf of each other Obligor) will promptly give to each Lender notice of all
legal or arbitral proceedings, and of all proceedings by or before any
governmental or regulatory authority or agency, and any material development in
respect of such legal or other proceedings, affecting the Parent or any of its
Subsidiaries, except proceedings that could not reasonably be expected (either
individually or in the aggregate) to have a Material Adverse Effect. Without
limiting the generality of the foregoing, the Parent will give to each Lender
notice of the assertion of any Environmental Claim by any Person against, or
with respect to the activities of, the Parent or any of its Subsidiaries and
notice of any alleged violation of or non-compliance with any Environmental Laws
or any permits, licenses or authorizations, other than any Environmental Claim
or alleged violation that could not reasonably be expected (either individually
or in the aggregate) to have a Material Adverse Effect.
9.03 Existence, Etc. The Parent will, and
will cause each of its Subsidiaries to:
(a) preserve and maintain its legal existence and all of its
material rights, privileges, licenses and franchises (provided that
nothing in this Section 9.03 shall prohibit any transaction expressly
permitted under Section 9.05 hereof);
(b) comply with the requirements of all applicable laws,
rules, regulations and orders of governmental or regulatory authorities
if failure to comply with such requirements could reasonably be
expected (either individually or in the aggregate) to have a Material
Adverse Effect;
(c) pay and discharge all taxes, assessments and governmental
charges or levies imposed on it or on its income or profits or on any
of its Property prior to the date on which penalties attach thereto,
except for any such tax, assessment, charge or levy the payment of
which is being contested in good faith and by proper proceedings and
against which adequate reserves are being maintained;
(d) maintain all of its Properties used or useful in its
business in good working order and condition, ordinary wear and tear
excepted;
(e) keep adequate records and books of account, in which
complete entries will be made in accordance with generally accepted
accounting principles consistently applied; and
(f) permit representatives of any Lender or the Administrative
Agent, during normal business hours, to examine, copy and make extracts
from its books and records, to inspect any of its Properties, and to
discuss its business and affairs with its officers, all to the extent
reasonably requested by such Lender or the Administrative Agent (as the
case may be).
9.04 Insurance. The Parent will, and will cause
each of its Subsidiaries to, maintain insurance with financially sound and
reputable insurance companies, and with respect to Property and risks of a
character usually maintained by corporations engaged in the same or similar
business similarly situated, against loss, damage and liability of the kinds and
in the amounts customarily maintained by such corporations.
The Parent will in any event maintain (with respect to itself
and each of its Subsidiaries):
(1) Casualty Insurance -- insurance against loss or damage
covering all of the tangible real and personal Property and
improvements of the Parent and each of its Subsidiaries by reason of
any Peril (as defined below) in such amounts (subject to such
deductibles as shall be satisfactory to the Majority Lenders) as shall
be reasonable and customary and sufficient to avoid the insured named
therein from becoming a co-insurer of any loss under such policy but in
any event in an amount (i) in the case of fixed assets and equipment
(other than vehicles), at least equal to 100% of the actual replacement
cost of such assets (including, without limitation, foundation,
footings and excavation costs), subject to deductibles as aforesaid and
(ii) in the case of inventory, not less than the fair market value
thereof, subject to deductibles as aforesaid.
(2) Automobile Liability Insurance for Bodily Injury and
Property Damage -- insurance against liability for bodily injury and
property damage in respect of all vehicles (whether owned, hired or
rented by the Parent or any of its Subsidiaries) at any time located
at, or used in connection with, its Properties or operations in such
amounts as are then customary for vehicles used in connection with
similar Properties and businesses, but in any event to the extent
required by applicable law.
(3) Comprehensive General Liability Insurance -- insurance
against claims for bodily injury, death or Property damage occurring
on, in or about the Properties (and adjoining streets, sidewalks and
waterways) of the Parent and its Subsidiaries, in such amounts as are
then customary for Property similar in use in the jurisdictions where
such Properties are located.
(4) Workers' Compensation Insurance -- workers' compensation
insurance or a qualified self-insurance program (including, without
limitation, Employers' Liability Insurance) to the extent required by
applicable law.
(5) Product Liability Insurance -- insurance against claims
for bodily injury, death or Property damage resulting from the use of
products sold by the Parent or any of its Subsidiaries in such amounts
as are then customarily maintained by responsible persons engaged in
businesses similar to that of the Parent and its Subsidiaries.
(6) Business Interruption Insurance -- insurance against loss
of operating income by reason of any Peril in such amounts as are
consistent with the coverages in place on the date hereof.
(7) Other Insurance -- such other insurance, including,
without limitation, War-Risk Insurance when and to the extent
obtainable from the United States Government, in each case as generally
carried by owners of similar Properties in the jurisdictions where such
Properties are located, in such amounts and against such risks as are
then customary for Property similar in use.
Such insurance shall be written by financially responsible companies selected by
the Parent and having an A. M. Best rating of "A-" or better and being in a
financial size category of XI or larger (or, with respect to companies providing
insurance on the date hereof, a financial size category of IX or larger), or by
other companies acceptable to the Majority Lenders, and (other than workers'
compensation) shall name the Administrative Agent as loss payee (to the extent
covering risk of loss or damage to tangible property) and as an additional named
insured as its interests may appear (to the extent covering any other risk).
Each policy referred to in this Section 9.04 shall provide that it will not be
canceled or reduced, or allowed to lapse without renewal, except after not less
than 30 days' notice to the Administrative Agent and shall also provide that the
interests of the Administrative Agent and the Lenders shall not be invalidated
by any act or negligence of the Parent or any Person having an interest in any
Property covered by the Mortgage nor by occupancy or use of any such Property
for purposes more hazardous than permitted by such policy nor by any foreclosure
or other proceedings relating to such Property. The Parent will advise the
Administrative Agent promptly of any policy cancellation, reduction or
amendment.
On or before the Restatement Effective Date, the Parent will
deliver to the Administrative Agent certificates of insurance satisfactory to
the Administrative Agent evidencing the existence of all insurance required to
be maintained by the Parent hereunder setting forth the respective coverages,
limits of liability, carrier, policy number and period of coverage and showing
that such insurance will remain in effect through the March 31 falling after the
date hereof, subject only to the payment of premiums as they become due (and
attaching original copies of any policies with respect to casualty insurance).
Thereafter, on each March 31 and October 31 in each year (commencing with the
first March 31 after the date hereof), the Parent will deliver to the
Administrative Agent certificates of insurance evidencing that all insurance
required to be maintained by the Parent hereunder will be in effect through the
following October 31 or March 31, as the case may be, subject only to the
payment of premiums as they become due. In addition, the Parent will not modify
any of the provisions of any policy with respect to casualty insurance without
delivering the original copy of the endorsement reflecting such modification to
the Administrative Agent accompanied by a written report of any firm of
independent insurance brokers of nationally recognized standing satisfactory to
the Administrative Agent, stating that, in their opinion, such policy (as so
modified) adequately protects the interests of the Lenders and the
Administrative Agent, is in compliance with the provisions of this Section 9.04,
and is comparable in all respects with insurance carried by responsible owners
and operators of Properties similar to those covered by the Mortgages. The
Parent will not obtain or carry separate insurance concurrent in form or
contributing in the event of loss with that required by this Section 9.04 unless
the Administrative Agent is the named insured thereunder, with loss payable as
provided herein. The Parent will immediately notify the Administrative Agent
whenever any such separate insurance is obtained and shall deliver to the
Administrative Agent the certificates evidencing the same.
Without limiting the obligations of the Parent under the
foregoing provisions of this Section 9.04, in the event the Parent shall fail to
maintain in full force and effect insurance as required by the foregoing
provisions of this Section 9.04, then the Administrative Agent may, but shall
have no obligation so to do, procure insurance covering the interests of the
Lenders and the Administrative Agent in such amounts and against such risks as
the Administrative Agent (or the Majority Lenders) shall deem appropriate, and
the Parent shall reimburse the Administrative Agent in respect of any premiums
paid by the Administrative Agent in respect thereof.
For purposes hereof, the term "Peril" shall mean,
collectively, fire, lightning, windstorm, hail, explosion, riot and civil
commotion, vandalism and malicious mischief, damage from aircraft, vehicles and
smoke and all other perils covered by the "all-risk" endorsement then in use in
the jurisdictions where the Properties of the Parent and its Subsidiaries are
located.
Notwithstanding the foregoing, the Parent and each of its Subsidiaries may carry
a portion of the insurance required hereunder through self-insurance
arrangements with a Subsidiary described in Section 9.08(h) hereof, provided
that such self-insurance is maintained only in amounts and in a manner that is
prudent and consistent with current market practices for such insurance coverage
of corporations engaged in the same or similar business similarly situated.
9.05 Prohibition of Fundamental Changes.
(a) The Parent will not, nor will it permit any of its
Subsidiaries to, enter into any transaction of merger or consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution).
(b) The Parent will not, nor will it permit any of its
Subsidiaries to, acquire any business or Property from, or Capital Stock of, or
be a party to any acquisition of, any Person except for:
(i) purchases of inventory and other Property to be sold or
used in the ordinary course of business;
(ii) Investments permitted under Section 9.08 hereof;
(iii) Capital Expenditures permitted under Section 9.11
hereof;
(iv) Permitted Reinvestment Capital Expenditures; and
(v) any other acquisition or purchase of any business,
property or Capital Stock of any Person, so long as (i) the aggregate
consideration for all such acquisitions under this clause (v) does not
exceed $20,000,000 in the aggregate, (ii) such business, property or
Capital Stock falls within the Aluminum Business, (iii) either (A)
EBITDA for such business or such Person, as the case may be, for the
most recent period of four consecutive fiscal quarters shall be
positive or (B) if such EBITDA is negative, the EBITDA for such
business or such Person, as the case may be for such period calculated
on a pro forma basis to reflect any adjustments to EBITDA requested by
the Parent and approved by the Administrative Agent, shall be positive,
(iv) after giving effect to such acquisition, the Company would be in
compliance on a pro forma basis (calculated as if such acquisition had
occurred on the first day of the relevant calculation period) with
Section 9.10 hereof, (v) immediately prior to such acquisition and
after giving effect thereto, no default shall have occurred and be
continuing, (vi) the Company shall have complied with the requirements
of Section 9.16 and 9.19 to the extent applicable to such acquisition;
and (vii) the Company shall have delivered to the Administrative Agent
a certificate of a Responsible Officer certifying in reasonable detail
as to compliance with the foregoing sub-clauses under this clause (v).
(c) The Parent will not, nor will it permit any of its
Subsidiaries to, convey, sell, lease, transfer or otherwise dispose of, in one
transaction or a series of transactions, any part of its business or Property,
whether now owned or hereafter acquired, including, without limitation,
Receivables and leasehold interests, but excluding:
(i) obsolete or worn-out Property, tools or equipment no
longer used or useful in its business so long as the amount thereof
sold in any single fiscal year by the Parent and its Subsidiaries shall
not have a fair market value in excess of $750,000; and
(ii) any inventory or other Property sold or disposed of in
the ordinary course of business and on ordinary business terms;
(iii) (x) Receivables Sales pursuant to Permitted Receivables
Financings and (y) sales or transfers of Receivables and Related Assets
for purposes of collection in the ordinary course of business and
consistent with past practices; and
(iv) other sales of Property for fair market value (as
reasonably determined by the Parent) for cash in an aggregate amount
not exceeding $2,000,000 in any fiscal year of the Parent.
(d) Notwithstanding the foregoing provisions of this Section
9.05:
(i) any Subsidiary of the Parent may be merged or consolidated
with or into: (x) the Parent if the Parent shall be the continuing or
surviving corporation or (y) any other such Subsidiary; provided that
(1) if any such transaction shall be between a Subsidiary and a Wholly
Owned Subsidiary, the Wholly Owned Subsidiary shall be the continuing
or surviving corporation and (2) that if any such transaction shall be
between a Subsidiary Guarantor and a Subsidiary not a Subsidiary
Guarantor, and such Subsidiary Guarantor is not the continuing or
surviving corporation, then the continuing or surviving corporation
shall have assumed all of the obligations of such Subsidiary Guarantor
hereunder and under the other Credit Documents in a manner satisfactory
to the Administrative Agent; and
(ii) any Subsidiary of the Parent may sell, lease, transfer or
otherwise dispose of any or all of its Property (upon voluntary
liquidation or otherwise) to the Parent or a Wholly Owned Subsidiary of
the Parent; provided that if any such sale is by a Subsidiary Guarantor
to a Subsidiary of the Parent not a Subsidiary Guarantor, then such
Subsidiary shall have assumed all of the obligations of such Subsidiary
Guarantor hereunder and under the other Credit Documents in a manner
satisfactory to the Administrative Agent.
9.06 Limitation on Liens. The Parent
will not, nor will it permit any of its Subsidiaries to, create, incur, assume
or suffer to exist any Lien upon any of its Property, whether now owned or
hereafter acquired, except:
(a) Liens created pursuant to the Security Documents;
(b) Liens in existence on the date hereof and listed in Part B
of Schedule V hereto;
(c) Liens imposed by any governmental authority for taxes,
assessments or charges not yet due or that are being contested in good
faith and by appropriate proceedings if, unless the amount thereof is
not material with respect to it or its financial condition, adequate
reserves with respect thereto are maintained on the books of the Parent
or the affected Subsidiaries, as the case may be, in accordance with
GAAP;
(d) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business that are not overdue for a period of more than 30 days or that
are being contested in good faith and by appropriate proceedings and
Liens securing judgments but only to the extent for an amount and for a
period not resulting in an Event of Default under Section 10(h) hereof;
(e) pledges or deposits under worker's compensation,
unemployment insurance and other social security legislation;
(f) deposits to secure the performance of bids, trade
contracts (other than for Indebtedness), leases, statutory obligations,
surety and appeal bonds, performance bonds and other obligations of a
like nature incurred in the ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business and
encumbrances consisting of zoning restrictions, easements, licenses,
restrictions on the use of Property or minor imperfections in title
thereto that, in the aggregate, are not material in amount, and that do
not in any case materially interfere with the ordinary conduct of the
business of the Parent or any of its Subsidiaries;
(h) Liens on Property of any corporation that becomes a
Subsidiary of the Parent after the date hereof, provided that such
Liens are in existence at the time such corporation becomes a
Subsidiary of the Parent and were not created in anticipation thereof;
(i) Liens upon real and/or tangible personal Property acquired
after the date hereof (by purchase, construction or otherwise) by the
Parent or any of its Subsidiaries, each of which Liens either (A)
existed on such Property before the time of its acquisition and was not
created in anticipation thereof or (B) was created solely for the
purpose of securing Indebtedness representing, or incurred to finance,
refinance or refund, the cost (including the cost of construction) of
such Property; provided that (i) no such Lien shall extend to or cover
any Property of the Parent or such Subsidiary other than the Property
so acquired and improvements thereon and (ii) the principal amount of
Indebtedness secured by any such Lien shall at no time exceed 80% of
the fair market value (as determined in good faith by a Responsible
Officer of the Parent) of such Property at the time it was acquired (by
purchase, construction or otherwise);
(j) additional Liens upon real and/or personal Property
created after the date hereof, provided that the aggregate Indebtedness
secured thereby and incurred on and after the date hereof shall not
exceed $5,000,000 in the aggregate at any one time outstanding; and
(k) Liens upon Receivables and Related Assets to secure
obligations under Permitted Receivables Financings.
9.07 Indebtedness. The Parent will not, nor
will it permit any of its Subsidiaries to, create, incur or suffer to exist any
Indebtedness except:
(a) Indebtedness to the Lenders hereunder;
(b) Indebtedness outstanding on the date hereof and listed in
Part A of Schedule V hereto;
(c) (i) Indebtedness of the Parent in respect of the Senior
Subordinated Debt in an aggregate original principal amount not
exceeding $125,000,000, and (ii) subordinated Guarantees of such
Indebtedness by Subsidiaries of the Parent pursuant to the Senior
Subordinated Debt Documents;
(d) Indebtedness of Subsidiaries of the Parent to the Parent
or to other Subsidiaries of the Parent (other than a Subsidiary
described in Section 9.08(h) hereof);
(e) Indebtedness in an aggregate amount not exceeding
$7,000,000 owing by the Parent and/or certain of its Subsidiaries to
Lockheed Martin Corporation pursuant to agreements relating to the
reimbursement for certain environmental costs;
(f) obligations of the Parent and its Subsidiaries under
Permitted Receivables Financings;
(g) additional Indebtedness of Subsidiaries of the Parent
incurred after the date hereof (including, without limitation, Capital
Lease Obligations and other Indebtedness secured by Liens permitted
under Section 9.06(i) or 9.06(j) hereof) up to but not exceeding
$5,000,000 in the aggregate at any one time outstanding; and
(h) obligations in respect of Interest Rate Protection
Agreements and Commodity Hedge Agreements (to the extent the same
constitute Indebtedness) permitted under Section 9.08(e) hereof.
9.08 Investments. The Parent will not, nor will
it permit any of its Subsidiaries to, make or permit to remain outstanding any
Investments except:
(a) Investments outstanding on the date hereof and identified
in Part B of Schedule XI hereto;
(b) operating deposit accounts with banks;
(c) Permitted Investments;
(d) Investments by the Parent and Holdings in the Borrowers;
(e) (i) over-the-counter Interest Rate Protection Agreements
with one or more of the Lenders (and/or with a bank or other financial
institution having capital, surplus and undivided profits of at least
$500,000,000) as to an aggregate notional principal amount not at any
time exceeding $150,000,000; and (ii) Commodity Hedge Agreements to the
extent permitted under Section 9.18 hereof;
(f) loans or advances made to employees of the Parent or any
of its Subsidiaries in the ordinary course of business and in
furtherance of the Parent's business in an aggregate amount not
exceeding $4,000,000 at any time outstanding;
(g) in the event the Parent or any of its Subsidiaries
maintains any unfunded deferred compensation plan (within the meaning
of Title I of ERISA), to the extent benefits under such plan are
defined by reference to specific investments, whether at the
participant's or the beneficiaries' election or otherwise, any
Investment in such a specific investment;
(h) Investments not to exceed $3,000,000 in the aggregate in
one or more Subsidiaries of the Parent organized solely for the purpose
of permitting the Parent and its Subsidiaries to self-insure in a usual
and customary manner consistent with current market practices for
self-insurance programs of corporations engaged in the same or similar
business similarly situated;
(i) additional Investments up to but not exceeding $5,000,000
in the aggregate; and
(j) Investments constituting capitalization of Securitization
Subsidiaries consistent with normal practice for transactions of such
type.
9.09 Dividend Payments. The Parent will
not, nor will it permit any of its Subsidiaries to, declare or make any Dividend
Payment at any time; provided that the Parent may:
(a) declare and make Dividend Payments in cash, subject to the
satisfaction of each of the following conditions on the date of such
Dividend Payment and after giving effect thereto:
(i) no Default shall have occurred and be continuing and
(ii) the aggregate amount of Dividend Payments made
in the form of cash dividends on the Capital Stock of the
Parent during the then-current fiscal quarter of the Parent
shall not exceed $1,500,000;
(b) make Stock Repurchases in cash, subject to the
satisfaction of each of the following conditions on the date of such
Stock Repurchase and after giving effect thereto:
(i) no Default shall have occurred and be continuing; and
(ii) the aggregate amount of Stock Repurchases shall not
exceed $8,000,000; and
(iii) after giving effect to such Stock
Repurchase, the Pro Forma Leverage Ratio would not exceed the
Pro Forma Leverage Ratio Amount as then in effect (calculated
as of the end of the most recent fiscal quarter of the
Parent); and
(c) make Employee Stock Repurchases in cash, subject to the
satisfaction of each of the following conditions on the date of such
Employee Stock Repurchase and after giving effect thereto:
(i) no Default shall have occurred and be continuing; and
(ii) the aggregate amount of all Employee
Stock Repurchases made after the date hereof shall not exceed
$6,000,000.
This Section 9.09 shall in any event not prohibit: (x) the payment of any
dividend by the Parent within 60 days after the date of declaration thereof if,
at such date of declaration, such payment would comply with the foregoing
paragraph; (y) the redemption of any Stock Purchase Rights issued under the
Stockholder Protection Rights Agreement; and (z) the payment of dividends by any
Subsidiary of the Parent to the Parent or to any other Subsidiary of the Parent.
9.10 Certain Financial Covenants.
(a) Leverage Ratio. The Parent will not permit the Total
Leverage Ratio to exceed the following respective ratios at any time during the
following respective periods:
Period Ratio
From and including
the Restatement Effective Date
to and including
December 30, 1998 3.50 to 1.00
From and including
December 31, 1998
to and including
December 30, 1999 3.25 to 1.00
From and including
December 31, 1999
to and including
December 30, 2000 3.00 to 1.00
From and including
December 31, 2000
to and including
December 30, 2001 2.75 to 1.00
From December 31, 2001
and at all times thereafter 2.50 to 1.00
(b) Interest Coverage Ratio.
The Parent will not permit the Total Interest Coverage Ratio
to be less than the following respective ratios at any time during the following
respective periods:
Period Ratio
From the Restatement Effective Date
through December 30, 1998 2.00 to 1.00
From December 31, 1998
through December 30, 1999 3.00 to 1.00
From December 31, 1999
through December 30, 2000 3.50 to 1.00
From December 31, 2000
and at all times thereafter 4.00 to 1.00
(c) Fixed Charges Ratio. The Parent will not permit the Fixed
Charges Ratio to be less than the following respective ratios at any time during
the following respective periods:
Period Ratio
From the Restatement Effective Date
through December 30, 1998 1.10 to 1.00
From December 31, 1998 through
December 30, 1999 1.20 to 1.00
From December 31, 1999
and at all times thereafter 1.25 to 1.00
9.11 Capital Expenditures. The Parent
will not permit the aggregate amount of Capital Expenditures (other than
Permitted Reinvestment Capital Expenditures) by the Parent and its Subsidiaries
to exceed $38,000,000 for any fiscal year of the Parent. If the aggregate amount
of Capital Expenditures for any period set forth in the schedule above shall be
less than the amount set forth opposite such period in the schedule above, then
the shortfall shall be added to the amount of Capital Expenditures permitted for
the immediately succeeding (but not any other) period and, for purposes hereof,
the amount of Capital Expenditures made during any period shall be deemed to
have been made first from the permitted amount for such period set forth in the
schedule above and last from the amount of any carryover from any previous
period.
9.12 Subordinated Indebtedness.
The Parent will not, nor will it permit any of its Subsidiaries to, purchase,
redeem, retire or otherwise acquire for value, or set apart any money for a
sinking, defeasance or other analogous fund for the purchase, redemption,
retirement or other acquisition of, or make any voluntary payment or prepayment
of the principal of or interest on, or any other amount owing in respect of, any
Subordinated Indebtedness, except for regularly scheduled payments or
prepayments of principal and interest in respect thereof required pursuant to
the instruments evidencing such Subordinated Indebtedness and not prohibited by
the subordination provisions thereof; provided that the Parent may repurchase or
redeem Subordinated Indebtedness subject to the satisfaction of each of the
following conditions on the date such Subordinated Indebtedness is repurchased
or redeemed and after giving effect thereto:
(a) no Default shall have occurred and be continuing;
(b) the aggregate principal amount of Subordinated
Indebtedness so repurchased or redeemed after the date hereof shall not
exceed $10,000,000; and
(c) after giving effect to such repurchase or redemption, the
Pro Forma Leverage Ratio would not exceed the Pro Forma Leverage Ratio
Amount as then in effect (calculated as of the end of the most recent
fiscal quarter of the Parent).
9.13 Lines of Business. The Parent will
not, nor will it permit any of its Subsidiaries to, engage to any substantial
extent in any line or lines of business activity other than the Aluminum
Business.
9.14 Transactions with Affiliates.
Except as expressly permitted by this Agreement, the Parent will
not, nor will it permit any of its Subsidiaries to, directly or indirectly:
(a) make any Investment in an Affiliate;
(b) transfer, sell, lease, assign or otherwise dispose of any
Property to an Affiliate;
(c) merge into or consolidate with or purchase or acquire
Property from an Affiliate; or
(d) enter into any other transaction directly or indirectly
with or for the benefit of an Affiliate (including, without limitation,
Guarantees and assumptions of obligations of an Affiliate);
provided that (i) any Affiliate who is an individual may serve as a director,
officer or employee of the Parent or any of its Subsidiaries and receive
reasonable compensation for his or her services in such capacity, (ii) the
Parent and its Subsidiaries may enter into transactions (other than extensions
of credit by the Parent or any of its Subsidiaries to an Affiliate) providing
for the leasing of Property, the rendering or receipt of services or the
purchase or sale of inventory and other Property in the ordinary course of
business if the monetary or business consideration arising therefrom would be
substantially as advantageous to the Parent and its Subsidiaries as the monetary
or business consideration that would obtain in a comparable transaction with a
Person not an Affiliate and (iii) transactions in connection with a Permitted
Receivables Financing are not prohibited by this Section 9.14.
9.15 Use of Proceeds. On the Restatement
Effective Date, the Revolving Credit Loans will be used as provided in Section
2.01 hereof. The Borrowers will use the proceeds of the Revolving Credit Loans,
after the Restatement Effective Date, to finance the ongoing working capital
requirements and other general corporate purposes of the Borrowers and their
respective Subsidiaries (including, without limitation, to finance any
acquisition permitted under Section 9.05(b)(v) hereof). The Borrowers will use
the proceeds of the Loans in compliance with all applicable legal and regulatory
requirements, including, without limitation, Regulations G, T, U and X and the
Securities Act of 1933 and the Securities Exchange Act of 1934 and the
regulations thereunder; provided that neither the Administrative Agent nor any
Lender shall have any responsibility as to the use of any of such proceeds.
9.16 Certain Obligations Respecting Subsidiaries.
(a) Subsidiary Guarantors. In the event that the Parent or any
of its Subsidiaries shall form or acquire any new Subsidiary (other than a
Securitization Subsidiary) that the Parent or the respective Subsidiary
anticipates will not be an Immaterial Subsidiary (or, in the event that any
Immaterial Subsidiary (other than a Securitization Subsidiary) shall cease to be
an Immaterial Subsidiary), the Parent will cause such new Subsidiary (or such
Immaterial Subsidiary that ceases to be an Immaterial Subsidiary) to become a
"Subsidiary Guarantor" and/or a "Guarantor" (and, thereby, an "Obligor")
hereunder, and to pledge and grant a security interest in its Property pursuant
to the Security Documents to the Administrative Agent for the benefit of the
Lenders, pursuant to a written instrument in form and substance satisfactory to
the Administrative Agent and to deliver such proof of corporate action,
incumbency of officers, opinions of counsel and other documents as is consistent
with those delivered by each "Obligor" pursuant to Section 7.01 hereof or as the
Administrative Agent shall have requested.
(b) Ownership of Subsidiaries. The Parent will, and will cause
each of its Subsidiaries to, take such action from time to time as shall be
necessary to ensure that each of its Subsidiaries is a Wholly Owned Subsidiary.
In the event that any additional shares of stock shall be issued by any
Subsidiary, the respective Obligor agrees forthwith to deliver to the
Administrative Agent pursuant to the Security Documents the certificates
evidencing such shares of stock, accompanied by undated stock powers executed in
blank and to take such other action as the Administrative Agent shall request to
perfect the security interest created therein pursuant to the Security
Documents.
(c) Certain Restrictions. Other than pursuant to the Senior
Subordinated Debt Documents or in connection with transactions related to a
Permitted Receivables Financing, the Obligors will not permit any of their
respective Subsidiaries to enter into, after the date hereof, any indenture,
agreement, instrument or other arrangement that, directly or indirectly,
prohibits or restrains, or has the effect of prohibiting or restraining, or
imposes materially adverse conditions upon, the incurrence or payment of
Indebtedness, the granting of Liens, the declaration or payment of dividends,
the making of loans, advances or Investments or the sale, assignment, transfer
or other disposition of Property.
9.17 Modifications of Certain Documents.
(a) No Obligor will consent to any modification, supplement or
waiver of any of the provisions of the Senior Subordinated Debt Documents or any
other documents providing for or relating to Subordinated Indebtedness, without
the prior approval of the Majority Lenders.
(b) No Obligor will take any action to modify or supplement
its articles of incorporation or the articles of incorporation of any of its
Subsidiaries, other than modifications that do not adversely affect the
interests of the Lenders, without the prior approval of the Majority Lenders.
9.18 Commodity Hedging Activities.
The Parent shall not, and shall not permit any of its Subsidiaries
to, enter into any commodity futures contract, commodity option or other similar
agreement or arrangement (collectively, "Commodity Hedge Agreements"), except
the Parent and its Subsidiaries may enter into Hedge Agreements designed to
protect the Parent and its Subsidiaries against fluctuations in the price of
aluminum and commodities used in the Aluminum Business and prices associated
with customer forward sales contracts and purchase commitments, so long as the
same (a) is consistent with the relevant Obligor's past practice or then-current
industry practice in the markets in which such Obligor operates and (b) is in
accordance with the Parent's "Price Risk Program: Briefing Summary", as the same
may be amended from time to time.
9.19 After-Acquired Real Estate.
If any Obligor or any of its Subsidiaries shall acquire any real
property, or shall lease any real property that is material to the operation of
its business, after the date hereof, other than any real property encumbered by
Liens permitted by Section 9.06(i) hereof, such Obligor or such Subsidiary, as
the case may be, shall promptly execute a Mortgage covering such real property,
together with such surveys, title insurance policies and endorsements,
certificates of occupancy and such other agreements, estoppels and consents
(including agreements with lessors) as the Administrative Agent may request, and
shall deliver opinions of local counsel and other documents as is consistent
with those delivered with respect to each Mortgage pursuant to Section 7.01(m)
of the Original Credit Agreement or as the Administrative Agent shall have
requested.
9.20 Activities of the Parent and Holdings.
-------------------------------------
(a) The Parent (i) will at all times own, beneficially and of
record, all of the issued and outstanding Capital Stock of Holdings (provided
that this Section 9.20(a)(i) shall not prohibit any transaction expressly
permitted under Section 9.05 hereof), (ii) will own no other Property (other
than cash and Permitted Investments, other Property incidental to its business
as a holding company and Capital Stock of its Subsidiaries), (iii) will have no
Indebtedness (other than Indebtedness hereunder and Indebtedness in respect of
Subordinated Indebtedness permitted under Section 9.07 hereof), (iv) will have
no operations other than de minimis operations incidental to its business as a
holding company and (v) in furtherance of the foregoing will not make any
expenditures or incur any liabilities other than those consistent with and
reasonably necessary in the conduct of the business of the Parent as
contemplated by this Section 9.20(a).
(b) Holdings (i) will at all times own, beneficially and of
record, all of the issued and outstanding Capital Stock of each of CAC and
Alflex (provided that this Section 9.20(b)(i) shall not prohibit any transaction
expressly permitted under Section 9.05 hereof), (ii) will own no other Property
(other than cash and Permitted Investments, other Property incidental to its
business as a holding company and Capital Stock of its Subsidiaries), (iii) will
have no Indebtedness (other than Indebtedness hereunder and Indebtedness in
respect of Subordinated Indebtedness permitted under Section 9.07 hereof), (iv)
will have no operations other than de minimis operations incidental to its
business as a holding company and (v) in furtherance of the foregoing will not
make any expenditures or incur any liabilities other than those consistent with
and reasonably necessary in the conduct of the business of Holdings as
contemplated by this Section 9.20(b).
Section 10. Events of Default. If one or more of the following
events (herein called "Events of Default") shall occur and at all times
thereafter be continuing:
(a) Any Obligor shall: (i) default in the payment of any
principal of any Loan or any Reimbursement Obligation when due (whether
at stated maturity or at mandatory or optional prepayment); or (ii)
default in the payment of any interest on any Loan, any fee or any
other amount payable by it hereunder or under any other Credit Document
when due and such default shall have continued unremedied for three or
more days; or
(b) The Parent or any of its Subsidiaries (herein collectively
called the "Relevant Parties") shall default in the payment when due of
any principal of or interest on any of its other Indebtedness having a
principal amount in of $1,000,000 or more individually or $2,000,000 or
more for all Relevant Parties and their Subsidiaries in the aggregate;
or any event specified in any note, agreement, indenture or other
document evidencing or relating to any such Indebtedness shall occur if
the effect of such event is to cause, or (with the giving of any notice
or the lapse of time or both) to permit the holder or holders of such
Indebtedness (or a trustee or agent on behalf of such holder or
holders) to cause, such Indebtedness to become due, or to be prepaid in
full (whether by redemption, purchase, offer to purchase or otherwise),
prior to its stated maturity or to have the interest rate thereon reset
to a level so that securities evidencing such Indebtedness trade at a
level specified in relation to the par value thereof; or any Relevant
Party shall default in the payment when due of any individual amount of
$1,000,000 or more (or of amounts aggregating $2,000,000 or more) under
any Interest Rate Protection Agreement; or any event specified in any
Interest Rate Protection Agreement shall occur if the effect of such
event is to cause, or (with the giving of any notice or the lapse of
time or both) to permit, any individual termination or liquidation
payment in an amount of $1,000,000 or more (or any termination or
liquidation payments aggregating $2,000,000 or more) to become due; or
(c) Any representation, warranty or certification made or
deemed made herein or in any other Credit Document (or in any
modification or supplement hereto or thereto) by any Obligor party
thereto, or any certificate furnished to any Lender or the
Administrative Agent pursuant to the provisions hereof or thereof,
shall prove to have been false or misleading as of the time made or
furnished in any material respect; or
(d) The Parent or any of the other Obligors (as applicable)
shall default in the performance of any of its obligations under any of
Sections 9.01(f), 9.05, 9.06, 9.07, 9.08, 9.09, 9.10, 9.11, 9.12, 9.14,
9.16(b), 9.17, 9.19 or 9.20 hereof or any Obligor shall default in the
performance of any of its obligations under Section 4.02 or 5.02 of the
Pledge and Security Agreement, or any provisions of any Mortgage; or
any Obligor shall default in the performance of any of its other
obligations in this Agreement or any other Credit Document and such
default shall continue unremedied for a period of thirty or more days
after notice thereof to the Parent by the Administrative Agent or any
Lender (through the Administrative Agent); or
(e) Any Relevant Party shall admit in writing its inability
to, or be generally unable to, pay its debts as such debts become due;
or
(f) Any Relevant Party shall (i) apply for or consent to the
appointment of, or the taking of possession by, a receiver, custodian,
trustee, examiner or liquidator of itself or of all or a substantial
part of its Property, (ii) make a general assignment for the benefit of
its creditors, (iii) commence a voluntary case under the Bankruptcy
Code, (iv) file a petition seeking to take advantage of any other law
relating to bankruptcy, insolvency, reorganization, liquidation,
dissolution, arrangement or winding-up, or composition or readjustment
of debts, (v) fail to controvert in a timely and appropriate manner, or
acquiesce in writing to, any petition filed against it in an
involuntary case under the Bankruptcy Code or (vi) take any corporate
action for the purpose of effecting any of the foregoing; or
(g) A proceeding or case shall be commenced, without the
application or consent of the affected Relevant Party, in any court of
competent jurisdiction, seeking (i) its reorganization, liquidation,
dissolution, arrangement or winding-up, or the composition or
readjustment of its debts, (ii) the appointment of a receiver,
custodian, trustee, examiner, liquidator or the like of such Relevant
Party or of all or any substantial part of its Property or (iii)
similar relief in respect of such Relevant Party under any law relating
to bankruptcy, insolvency, reorganization, winding-up, or composition
or adjustment of debts, and such proceeding or case shall continue
undismissed, or an order, judgment or decree approving or ordering any
of the foregoing shall be entered and continue unstayed and in effect,
for a period of 60 or more days; or an order for relief against any
Relevant Party shall be entered in an involuntary case under the
Bankruptcy Code; or
(h) A final judgment or judgments for the payment of money of
$250,000 or more in the aggregate (exclusive of judgment amounts fully
covered by insurance where the insurer has admitted liability in
respect of such judgment) or of $500,000 or more in the aggregate
(regardless of insurance coverage) shall be rendered by one or more
courts, administrative tribunals or other bodies having jurisdiction
against any Relevant Party and the same shall not be paid discharged
(or provision shall not be made for such payment or discharge), or a
stay of execution thereof shall not be procured, within 30 days from
the date of entry thereof and such Relevant Party shall not, within
said period of 30 days, or such longer period during which execution of
the same shall have been stayed, appeal therefrom and cause the
execution thereof to be stayed during such appeal; or
(i) An event or condition specified in Section 9.01(e) hereof
shall occur or exist with respect to any Plan or Multiemployer Plan
and, as a result of such event or condition, together with all other
such events or conditions specified in said Section 9.01(e), any
Obligor or any ERISA Affiliate shall incur or in the opinion of the
Majority Lenders shall be reasonably likely to incur a liability to a
Plan, a Multiemployer Plan or the PBGC (or any combination of the
foregoing) that, in the reasonable determination of the Majority
Lenders, could reasonably be expected (either individually or in the
aggregate) to have a Material Adverse Effect; or
(j) There shall have been asserted against the Parent or any
of its Subsidiaries, or any predecessor in interest thereof, an
Environmental Claim that, in the judgment of the Majority Lenders is
reasonably likely to be determined adversely to the Parent or any of
its Subsidiaries, and the amount thereof (either individually or in the
aggregate) is reasonably likely to have a Material Adverse Effect
(insofar as such amount is payable by the Parent or any of its
Subsidiaries, but after deducting any portion thereof that is
reasonably expected to be paid by other creditworthy Persons jointly
and severally liable therefor or the amount of funded reserves which
have been established that do not cause, or are not reasonably likely
to cause, a breach of any other provision of this Agreement); or
(k) The Liens created by the Security Documents shall at any
time not (other than by reason of the action or inaction by the
Administrative Agent) constitute a valid and perfected Lien on the
collateral intended to be covered thereby (to the extent perfection by
filing, registration, recordation or possession is required herein or
therein) in favor of the Administrative Agent, free and clear of all
other Liens (other than Liens permitted under Section 9.06 hereof or
under the respective Security Documents), or, except for expiration in
accordance with its terms, any of the Security Documents shall for
whatever reason be terminated or cease to be in full force and effect,
or the enforceability thereof shall be contested by any Obligor; or
(l) a Change of Control shall occur;
THEREUPON: (1) in the case of an Event of Default other than one referred to in
clause (f) or (g) of this Section 10 with respect to any Obligor, the
Administrative Agent may, by notice to the Parent, terminate the Commitments
(including the Swingline Commitment) and/or declare the principal amount then
outstanding of, and the accrued interest on, the Loans (including all Swingline
Loans), the Reimbursement Obligations and all other amounts payable by the
Obligors hereunder and under the Notes and the other Credit Documents
(including, without limitation, any amounts payable under Section 5.05 or 5.06
hereof) to be forthwith due and payable, whereupon such amounts shall be
immediately due and payable without presentment, demand, protest or other
formalities of any kind, all of which are hereby expressly waived by each
Obligor; and (2) in the case of the occurrence of an Event of Default referred
to in clause (f) or (g) of this Section 10 with respect to any Obligor, the
Commitments (including the Swingline Commitment) shall automatically be
terminated and the principal amount then outstanding of, and the accrued
interest on, the Loans (including all Swingline Loans), the Reimbursement
Obligations and all other amounts payable by the Obligors hereunder and under
the Notes and the other Credit Documents (including, without limitation, any
amounts payable under Section 5.05 or 5.06 hereof) shall automatically become
immediately due and payable without presentment, demand, protest or other
formalities of any kind, all of which are hereby expressly waived by each
Obligor.
In addition, upon the occurrence and during the continuance of
any Event of Default (if the Administrative Agent has declared the principal
amount then outstanding of, and accrued interest on, the Revolving Credit Loans
and all other amounts payable by the Obligors hereunder and under the Notes to
be due and payable), each Revolving Credit Borrower agrees that it shall, if
requested by the Administrative Agent or the Majority Lenders through the
Administrative Agent (and, in the case of any Event of Default referred to in
clause (f) or (g) of this Section 10 with respect to such Borrower, forthwith,
without any demand or the taking of any other action by the Administrative Agent
or such Lenders) provide cover for the Letter of Credit Liabilities under such
Borrower's Revolving Credit Facility by paying to the Administrative Agent
immediately available funds in an amount equal to the then aggregate undrawn
face amount of all Letters of Credit under such Facility, which funds shall be
held by the Administrative Agent in the Collateral Account as collateral
security in the first instance for the Letter of Credit Liabilities under such
Facility and be subject to withdrawal only as therein provided.
Section 11. The Administrative Agent.
11.01 Appointment, Powers and Immunities.
Each Lender hereby appoints and authorizes the
Administrative Agent to act as its agent hereunder and under the other Credit
Documents with such powers as are specifically delegated to the Administrative
Agent by the terms of this Agreement and of the other Credit Documents, together
with such other powers as are reasonably incidental thereto. The Administrative
Agent (which term as used in this sentence and in Section 11.05 and the first
sentence of Section 11.06 hereof shall include reference to its affiliates and
its own and its affiliates' officers, directors, employees and agents):
(a) shall have no duties or responsibilities except those
expressly set forth in this Agreement and in the other Credit
Documents, and shall not by reason of this Agreement or any other
Credit Document be a trustee for any Lender;
(b) shall not be responsible to the Lenders for any recitals,
statements, representations or warranties contained in this Agreement
or in any other Credit Document, or in any certificate or other
document referred to or provided for in, or received by any of them
under, this Agreement or any other Credit Document, or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement, any Note or any other Credit Document or any other
document referred to or provided for herein or therein or for any
failure by the Parent or any other Person to perform any of its
obligations hereunder or thereunder;
(c) shall not, except to the extent expressly instructed by
the Majority Lenders with respect to collateral security under the
Security Documents, be required to initiate or conduct any litigation
or collection proceedings hereunder or under any other Credit Document;
and
(d) shall not be responsible for any action taken or omitted
to be taken by it hereunder or under any other Credit Document or under
any other document or instrument referred to or provided for herein or
therein or in connection herewith or therewith, except for its own
gross negligence or willful misconduct.
The Administrative Agent may employ agents and attorneys-in-fact and shall not
be responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it in good faith. The Administrative Agent may
deem and treat the payee of a Note as the holder thereof for all purposes hereof
unless and until a notice of the assignment or transfer thereof shall have been
filed with the Administrative Agent, together with the consent of the Parent to
such assignment or transfer (to the extent required by Section 12.06(b) hereof).
PNC Bank, National Association is named herein as Documentation Agent but shall
not be a party hereto and shall have no obligation in such capacity.
11.02 Reliance by Administrative Agent.
The Administrative Agent shall be entitled to rely upon
any certification, notice or other communication (including, without limitation,
any thereof by telephone, telecopy, telegram or cable) reasonably believed by it
to be genuine and correct and to have been signed or sent by or on behalf of the
proper Person or Persons, and upon advice and statements of legal counsel,
independent accountants and other experts selected by the Administrative Agent.
As to any matters not expressly provided for by this Agreement or any other
Credit Document, the Administrative Agent shall in all cases be fully protected
in acting, or in refraining from acting, hereunder or thereunder in accordance
with instructions given by the Majority Lenders or, if provided herein, in
accordance with the instructions given by all of the Lenders as is required in
such circumstance, and such instructions of such Lenders and any action taken or
failure to act pursuant thereto shall be binding on all of the Lenders.
11.03 Defaults. The Administrative Agent shall not
be deemed to have knowledge or notice of the occurrence of a Default unless the
Administrative Agent has received notice from a Lender or the Parent specifying
such Default and stating that such notice is a "Notice of Default". In the event
that the Administrative Agent receives such a notice of the occurrence of a
Default, the Administrative Agent shall give prompt notice thereof to the
Lenders. The Administrative Agent shall (subject to Section 11.07 hereof) take
such action with respect to such Default as shall be directed by the Majority
Lenders, provided that, unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default as it shall deem advisable in the best interest of the Lenders
except to the extent that this Agreement expressly requires that such action be
taken, or not be taken, only with the consent or upon the authorization of the
Majority Lenders or all of the Lenders.
11.04 Rights as a Lender. With respect
to its Commitments and the Loans made by it, NatWest (and any successor acting
as Administrative Agent) in its capacity as a Lender hereunder shall have the
same rights and powers hereunder as any other Lender and may exercise the same
as though it were not acting as the Administrative Agent, and the term "Lender"
or "Lenders" shall, unless the context otherwise indicates, include the
Administrative Agent in its individual capacity. NatWest (and any successor
acting as Administrative Agent) and its affiliates may (without having to
account therefor to any Lender) accept deposits from, lend money to, make
investments in and generally engage in any kind of banking, trust or other
business with the Obligors (and any of their Subsidiaries or Affiliates) as if
it were not acting as the Administrative Agent, and NatWest (and any such
successor) and its affiliates may accept fees and other consideration from the
Obligors for services in connection with this Agreement or otherwise without
having to account for the same to the Lenders.
11.05 Indemnification. The Lenders agree to
indemnify the Administrative Agent (to the extent not reimbursed under Section
12.03 hereof, but without limiting the obligations of the Parent under said
Section 12.03) ratably in accordance with the aggregate principal amount of the
Loans and Reimbursement Obligations held by the Lenders (or, if no Loans or
Reimbursement Obligations are at the time outstanding, ratably in accordance
with their respective Notes), for any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind and nature whatsoever that may be imposed on, incurred by or
asserted against the Administrative Agent (including by any Lender) arising out
of or by reason of any investigation in or in any way relating to or arising out
of this Agreement or any other Credit Document or any other documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby (including, without limitation, the costs and
expenses that the Borrowers are obligated to pay under Section 12.03 hereof, but
excluding, unless a Default has occurred and is continuing, normal
administrative costs and expenses incident to the performance of its agency
duties hereunder) or the enforcement of any of the terms hereof or thereof or of
any such other documents, provided that no Lender shall be liable for any of the
foregoing to the extent they arise from the gross negligence or willful
misconduct of the party to be indemnified.
11.06 Non-Reliance on Administrative Agent and Other
Lenders. Each Lender
agrees that it has, independently and without reliance on the Administrative
Agent or any other Lender, and based on such documents and information as it has
deemed appropriate, made its own credit analysis of the Parent and its
Subsidiaries and made its own decision to enter into this Agreement and that it
will, independently and without reliance upon the Administrative Agent or any
other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own analysis and decisions in
taking or not taking action under this Agreement or under any other Credit
Document. The Administrative Agent shall not be required to keep itself informed
as to the performance or observance by any Obligor of this Agreement or any of
the other Credit Documents or any other document referred to or provided for
herein or therein or to inspect the Properties or books of the Parent or any of
its Subsidiaries. Except for notices, reports and other documents and
information expressly required to be furnished to the Lenders by the
Administrative Agent hereunder or under the Security Documents, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the affairs, financial
condition or business of the Parent or any of its Subsidiaries (or any of their
affiliates) that may come into the possession of the Administrative Agent or any
of its affiliates.
11.07 Failure to Act. Except for action
expressly required of the Administrative Agent hereunder and under the other
Credit Documents, the Administrative Agent shall in all cases be fully justified
in failing or refusing to act hereunder and thereunder unless it shall receive
further assurances to its satisfaction from the Lenders of their indemnification
obligations under Section 11.05 hereof against any and all liability and expense
that may be incurred by it by reason of taking or continuing to take any such
action.
11.08 Resignation or Removal of Administrative Agent.
Subject to the appointment and
acceptance of a successor Administrative Agent as provided below, the
Administrative Agent may resign at any time by giving notice thereof to the
Lenders and the Parent and the Borrowers, and the Administrative Agent may be
removed at any time with or without cause by the Majority Lenders. Upon any such
resignation or removal, the Majority Lenders shall have the right to appoint a
successor Administrative Agent. If no successor Administrative Agent shall have
been so appointed by the Majority Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent's giving of
notice of resignation or the Majority Lenders' removal of the retiring
Administrative Agent, then the retiring Administrative Agent may, on behalf of
the Lenders, appoint a successor Administrative Agent, that shall be a bank that
has an office in New York, New York with a combined capital and surplus of at
least $500,000,000. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. After any retiring Administrative Agent's resignation or
removal hereunder as Administrative Agent, the provisions of this Section 11
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as the Administrative Agent.
11.09 Consents under Other Credit Documents.
Except as otherwise provided in Section 12.04 hereof
with respect to this Agreement, the Administrative Agent may, with the prior
consent of the Majority Lenders (but not otherwise), consent to any
modification, supplement or waiver under any of the Credit Documents, provided
that, without the prior consent of each Lender, the Administrative Agent shall
not (except as provided herein or in the Security Documents) release any
collateral or otherwise terminate any Lien under any Security Document providing
for collateral security, agree to additional obligations being secured by such
collateral security (unless the Lien for such additional obligations shall be
junior to the Lien in favor of the other obligations secured by such Security
Document, in which event the Administrative Agent may consent to such junior
Lien provided that it obtains the consent of the Majority Lenders thereto),
alter the relative priorities of the obligations entitled to the benefits of the
Liens created under the Security Documents or release any guarantor under any
Security Document from its guarantee obligations thereunder, except that no such
consent shall be required, and the Administrative Agent is hereby authorized, to
release any Lien covering Property (and to release any such guarantor) that is
the subject of either a disposition of Property permitted hereunder (including,
without limitation, dispositions of Receivables and Related Assets pursuant to
Permitted Receivables Financings) or a disposition to which the Majority Lenders
have consented.
11.10 Collateral Sub-Agents. Each
Lender by its execution and delivery of this Agreement agrees, as contemplated
by Section 4.03 of the Pledge and Security Agreement, that, in the event it
shall hold any Permitted Investments referred to therein, such Permitted
Investments shall be held in the name and under the control of such Lender, and
such Lender shall hold such Permitted Investments as a collateral sub-agent for
the Administrative Agent thereunder. The Obligors by their execution and
delivery of this Agreement hereby consent to the foregoing.
Section 12. Miscellaneous.
12.01 Waiver. No failure on the part of the
Administrative Agent or any Lender to exercise and no delay in exercising, and
no course of dealing with respect to, any right, power or privilege under this
Agreement or any Note shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, power or privilege under this Agreement or any
Note preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law.
12.02 Notices. All notices, requests and other
communications provided for herein and under the Security Documents (including,
without limitation, any modifications of, or waivers, requests or consents
under, this Agreement) shall be given or made in writing (including, without
limitation, by telecopy) delivered to the intended recipient:
(a) in the case of each of the Obligors, at the "Address for
Notices" specified below the name of the Parent on the signature pages
hereof;
(b) in the case of the Administrative Agent, at the "Address
for Notices" specified below the name of the Administrative Agent on
the signature pages hereof; and
(c) in the case of any Lender, at its address (or telecopy
number) set forth in its Administrative Questionnaire;
or, as to any party, at such other address as shall be designated by such party
in a notice to each other party. Except as otherwise provided in this Agreement,
all such communications shall be deemed to have been duly given when transmitted
by telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
12.03 Expenses, Etc. The Parent and the
Borrowers agree jointly and severally to pay or reimburse each of the Lenders
and the Administrative Agent for: (a) all reasonable out-of-pocket costs and
expenses of the Administrative Agent (including, without limitation, the
reasonable fees and expenses of Milbank, Tweed, Hadley & McCloy, special New
York counsel to NatWest) in connection with (i) the negotiation, preparation,
execution and delivery of this Agreement and the other Credit Documents and the
extension of credit hereunder and (ii) the negotiation or preparation of any
modification, supplement or waiver of any of the terms of this Agreement or any
of the other Credit Documents (whether or not consummated); (b) all reasonable
out-of-pocket costs and expenses of the Lenders and the Administrative Agent
(including, without limitation, the reasonable fees and expenses of legal
counsel) in connection with (i) any Default and any enforcement or collection
proceedings resulting therefrom, including, without limitation, all manner of
participation in or other involvement with (x) bankruptcy, insolvency,
receivership, foreclosure, winding up or liquidation proceedings, (y) judicial
or regulatory proceedings and (z) workout, restructuring or other negotiations
or proceedings (whether or not the workout, restructuring or transaction
contemplated thereby is consummated) and (ii) the enforcement of this Section
12.03; (c) all transfer, stamp, documentary or other similar taxes, assessments
or charges levied by any governmental or revenue authority in respect of this
Agreement or any of the other Credit Documents or any other document referred to
herein or therein and all costs, expenses, taxes, assessments and other charges
incurred in connection with any filing, registration, recording or perfection of
any security interest contemplated by any Security Document or any other
document referred to therein; and (d) all costs, expenses and other charges in
respect of title insurance procured with respect to the Liens created pursuant
to the Mortgages.
The Parent and the Borrowers hereby agree jointly and
severally to indemnify the Administrative Agent and each Lender and their
respective directors, officers, employees, attorneys and agents from, and hold
each of them harmless against, any and all losses, liabilities, claims, damages
or expenses incurred by any of them (including, without limitation, any and all
losses, liabilities, claims, damages or expenses incurred by the Administrative
Agent to any Lender, whether or not the Administrative Agent or any Lender is a
party thereto) arising out of or by reason of any investigation or litigation or
other proceedings (including any threatened investigation or litigation or other
proceedings) relating to the extensions of credit hereunder or any actual or
proposed use by the Obligors of any of its Subsidiaries of the proceeds of any
of the extensions of credit hereunder, including, without limitation, the
reasonable fees and disbursements of counsel incurred in connection with any
such investigation or litigation or other proceedings (but excluding any such
losses, liabilities, claims, damages or expenses incurred by reason of the gross
negligence or willful misconduct of the Person to be indemnified or such
Person's directors, officers, employees, attorneys or agents). Without limiting
the generality of the foregoing, the Parent and the Borrowers jointly and
severally will indemnify the Administrative Agent and each Lender from, and hold
the Administrative Agent and each Lender harmless against, any losses,
liabilities, claims, damages or expenses described in the preceding sentence
(including any Lien filed against any Property covered by the Mortgages or any
part of the Mortgage Estate thereunder in favor of any governmental entity, but
excluding, as provided in the preceding sentence, any loss, liability, claim,
damage or expense incurred by reason of the gross negligence or willful
misconduct of the Person to be indemnified) arising under any Environmental Law
as a result of the past, present or future operations of the Parent or any of
its Subsidiaries (or any predecessor in interest to the Parent or any of its
Subsidiaries), or the past, present or future condition of any site or facility
owned, operated or leased at any time by the Parent or any of its Subsidiaries
(or any such predecessor in interest), or any Release or threatened Release of
any Hazardous Materials at or from any such site or facility, excluding any such
Release or threatened Release that shall occur during any period when the
Administrative Agent or any Lender shall be in possession of any such site or
facility following the exercise by the Administrative Agent or any Lender of any
of its rights and remedies hereunder or under any of the Security Documents, but
including any such Release or threatened Release occurring during such period
that is a continuation of conditions previously in existence, or of practices
employed by the Parent and its Subsidiaries, at such site or facility.
12.04 Amendments, Etc. Except as otherwise
expressly provided in this Agreement, any provision of this Agreement may be
modified or supplemented only after written notice to all Lenders and by an
instrument in writing signed by the Parent, the Borrowers and the Majority
Lenders, or by the Parent, the Borrowers and the Administrative Agent acting
with the consent of the Majority Lenders, and any provision of this Agreement
may be waived after written notice to all Lenders by the Majority Lenders or by
the Administrative Agent acting with the consent of the Majority Lenders;
provided that:
(a) no modification, supplement or waiver shall, unless by an
instrument signed by all of the Lenders or by the Administrative Agent
acting with the consent of all of the Lenders: (i) increase, or extend
the term of any of the Commitments, or extend the time or waive any
requirement for the scheduled reduction or termination of any of the
Commitments, (ii) extend the date fixed for the scheduled payment of
principal of or interest on any Loan, the Reimbursement Obligations or
any fee hereunder, (iii) reduce the amount of any such payment of
principal, (iv) reduce the rate at which interest is payable thereon or
any fee is payable hereunder, (v) alter the rights or obligations of
the Borrowers to prepay Loans, (vi) alter the manner in which payments
or prepayments of principal, interest or other amounts hereunder shall
be applied as between the Lenders or Types or Facilities of Loans,
(vii) alter the terms of this Section 12.04, (viii) modify the
definition of the term "Majority Lenders" or modify in any other manner
the number or percentage of the Lenders required to make any
determinations or waive any rights hereunder or to modify any provision
hereof, (ix) release any Guarantor from any of its guarantee
obligations under Section 6 hereof, or (x) waive any of the conditions
precedent set forth in Section 7.01 hereof;
(b) any modification, supplement or waiver of Section 2.01(b)
hereof shall require the consent of the Swingline Lender;
(c) any modification or supplement of Section 11 hereof, or of
any of the rights or duties of the Administrative Agent hereunder,
shall require the consent of the Administrative Agent; and
(d) any modification or supplement of Section 6 hereof shall
require the consent of each Guarantor.
12.05 Successors and Assigns. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns.
12.06 Assignments and Participations.
(a) No Obligor may assign any of its rights or obligations
hereunder or under the Notes without the prior consent of all of the Lenders and
the Administrative Agent.
(b) Each Lender may assign any of its Loans, its Notes, its
Commitments, and, if such Lender is a Revolving Credit Lender, its Letter of
Credit Interest (but only with the consent of the Administrative Agent, the
Parent and (in the case of a Revolving Credit Commitment or a Letter of Credit
Interest) the Issuing Banks, such consents not to be unreasonably withheld);
provided that:
(i) no such consent by the Parent, the Administrative Agent or
the Issuing Banks shall be required in the case of any assignment to
another Lender;
(ii) except to the extent the Parent and the Administrative
Agent shall otherwise consent, any such partial assignment (other than
to another Lender) shall be in an amount at least equal to $5,000,000;
and
(iii) each such assignment by a Lender of its Loans, Note,
Commitment or Letter of Credit Interest under the Revolving Credit
Facility shall be made in such manner so that the same portion of its
Loans, Note, Commitment and Letter of Credit Interest under the
Revolving Credit Facility are assigned to the respective assignee.
Upon execution and delivery by the assignee to the Parent, the Administrative
Agent and the Issuing Banks of an instrument in writing pursuant to which such
assignee agrees to become a "Lender" hereunder (if not already a Lender) having
the Commitment(s), Loans, and, if applicable, Letter of Credit Interest
specified in such instrument, and upon consent thereto by the Parent, the
Administrative Agent and the Issuing Banks to the extent required above, the
assignee shall have, to the extent of such assignment (unless provided in such
assignment with the consent of the Parent, the Administrative Agent and the
Issuing Banks), the obligations, rights and benefits of a Lender hereunder
holding the Commitment(s), Loans and, if applicable, Letter of Credit Interest
(or portions thereof) assigned to it (in addition to the Commitment(s), Loans
and Letter of Credit Interest, if any, theretofore held by such assignee) and
the assigning Lender shall, to the extent of such assignment, be released from
the Commitment(s) (or portion(s) thereof) so assigned. Upon each such assignment
(but excluding, in any event, the assignments contemplated in Section 2.01(b)
hereof) the assigning Lender shall pay the Administrative Agent an assignment
fee of $3,500.
(c) A Lender may sell or agree to sell to one or more other
Persons (each a "Participant") a participation in all or any part of any Loans
or Letter of Credit Interest held by it, or in its Commitments, provided that
such Participant shall not have any rights or obligations under this Agreement
or any Note or any other Credit Document (the Participant's rights against such
Lender in respect of such participation to be those set forth in the agreements
executed by such Lender in favor of the Participant). All amounts payable by the
Borrowers to any Lender under Section 5 hereof in respect of Loans, Letter of
Credit Interest held by it, and its Commitments, shall be determined as if such
Lender had not sold or agreed to sell any participations in such Loans, Letter
of Credit Interest and Commitments, and as if such Lender were funding each of
such Loan, Letter of Credit Interest and Commitments in the same way that it is
funding the portion of such Loan, Letter of Credit Interest and Commitments in
which no participations have been sold. In no event shall a Lender that sells a
participation agree with the Participant to take or refrain from taking any
action hereunder or under any other Credit Document except that such Lender may
agree with the Participant that it will not, without the consent of the
Participant, agree to (i) increase or extend the term of such Lender's related
Commitment, (ii) extend the scheduled date fixed for the payment of principal of
or interest on the related Loan or Loans, Reimbursement Obligations or any
portion of any fee hereunder payable to the Participant, (iii) reduce the amount
of any such payment of principal, (iv) reduce the rate at which interest is
payable thereon, or any fee hereunder payable to the Participant, to a level
below the rate at which the Participant is entitled to receive such interest or
fee or (v) consent to any modification, supplement or waiver hereof or of any of
the other Credit Documents to the extent that the same, under Section 11.09 or
12.04 hereof, requires the consent of each Lender.
(d) In addition to the assignments and participations
permitted under the foregoing provisions of this Section 12.06, any Lender may
(without notice to the Parent, the Administrative Agent, the Issuing Banks or
any other Lender and without payment of any fee) assign and pledge all or any
portion of its Loans and its Notes to any Federal Reserve Bank as collateral
security pursuant to Regulation A and any Operating Circular issued by such
Federal Reserve Bank, and such Loans and Notes shall be fully transferrable as
provided therein. No such assignment shall release the assigning Lender from its
obligations hereunder.
(e) A Lender may furnish any information concerning the Parent
or any of its Subsidiaries in the possession of such Lender from time to time to
assignees and participants (including prospective assignees and participants),
subject, however, to the provisions of Section 12.12(b) hereof.
(f) Anything in this Section 12.06 to the contrary
notwithstanding, no Lender may assign or participate any interest in any Loan or
Reimbursement Obligation held by it hereunder to the Parent or any of its
Affiliates or Subsidiaries without the prior consent of each Lender.
12.07 Survival. The obligations of the Obligors
under Sections 5.01, 5.05, 5.06, 5.07 and 12.03 hereof, the obligations of each
Guarantor under Section 6.03 hereof, and the obligations of the Lenders under
Section 11.05 hereof, shall survive the repayment of the Loans and Reimbursement
Obligations and the termination of the Commitments and, in the case of any
Lender that may assign any interest in its Commitments, Loans or Letter of
Credit Interest hereunder, shall survive the making of such assignment,
notwithstanding that such assigning Lender may cease to be a "Lender" hereunder.
In addition, each representation and warranty made, or deemed to be made by a
notice of any extension of credit (whether by means of a Loan or a Letter of
Credit), herein or pursuant hereto shall survive the making of such
representation and warranty, and no Lender shall be deemed to have waived, by
reason of making any extension of credit hereunder (whether by means of a Loan
or a Letter of Credit), any Default that may arise by reason of such
representation or warranty proving to have been false or misleading,
notwithstanding that such Lender or the Administrative Agent may have had notice
or knowledge or reason to believe that such representation or warranty was false
or misleading at the time such extension of credit was made.
12.08 Captions. The table of contents and captions
and section headings appearing herein are included solely for convenience of
reference and are not intended to affect the interpretation of any provision of
this Agreement.
12.09 Counterparts. This Agreement may be
executed in any number of counterparts, all of which taken together shall
constitute one and the same instrument and any of the parties hereto may execute
this Agreement by signing any such counterpart.
12.10 Governing Law; Submission to Jurisdiction.
This Agreement and the Notes shall be governed
by, and construed in accordance with, the law of the State of New York. Each
Obligor hereby submits to the nonexclusive jurisdiction of the United States
District Court for the Southern District of New York and of the Supreme Court of
the State of New York sitting in New York County (including its Appellate
Division), and of any other appellate court in the State of New York, for the
purposes of all legal proceedings arising out of or relating to this Agreement
or the transactions contemplated hereby. Each Obligor hereby irrevocably waives,
to the fullest extent permitted by applicable law, any objection that it may now
or hereafter have to the laying of the venue of any such proceeding brought in
such a court and any claim that any such proceeding brought in such a court has
been brought in an inconvenient forum.
12.11 Waiver of Jury Trial. EACH OF
THE OBLIGORS, THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
12.12 Treatment of Certain Information; Confidentiality.
(a) Each Obligor acknowledges that from time to time financial
advisory, investment banking and other services may be offered or provided to
the Parent or one or more of its Subsidiaries (in connection with this Agreement
or otherwise) by any Lender or by one or more subsidiaries or affiliates of such
Lender and each of the Obligors hereby authorizes each Lender to share any
information delivered to such Lender by such Obligor and its Subsidiaries
pursuant to this Agreement, or in connection with the decision of such Lender to
enter into this Agreement, with any such subsidiary or affiliate, it being
understood that any such subsidiary or affiliate receiving such information
shall be bound by the provisions of paragraph (b) below as if it were a Lender
hereunder. Such authorization shall survive the repayment of the Loans and
Reimbursement Obligations and the termination of the Commitments.
(b) Each Lender and the Administrative Agent agrees (on behalf
of itself and each of its affiliates, directors, officers, employees and
representatives) to use reasonable precautions to keep confidential, in
accordance with their customary procedures for handling confidential information
of the same nature and in accordance with safe and sound banking practices, any
non-public information supplied to it by any of the Obligors pursuant to this
Agreement that is identified by such Person as being confidential at the time
the same is delivered to the Lenders or the Administrative Agent, provided that
nothing herein shall limit the disclosure of any such information (i) after such
information shall have become public (other than through a violation of this
Section 12.12), (ii) to the extent required by statute, rule, regulation or
judicial process, (iii) to counsel for any of the Lenders or the Administrative
Agent, (iv) to bank examiners (or any other regulatory authority having
jurisdiction over any Lender or the Administrative Agent), or to auditors or
accountants, (v) to the Administrative Agent or any other Lender, (vi) in
connection with any litigation to which any one or more of the Lenders or the
Administrative Agent is a party, or in connection with the enforcement of rights
or remedies hereunder or under any other Credit Document, (vii) to a subsidiary
or affiliate of such Lender as provided in paragraph (a) above or (viii) to any
assignee or participant (or prospective assignee or participant) so long as such
assignee or participant (or prospective assignee or participant) first executes
and delivers to the respective Lender a confidentiality agreement containing
provisions substantially the same as those in this Section 12.12 (or executes
and delivers to such Lender an acknowledgement to the effect that it is bound by
the provisions of this Section 12.12(b), which acknowledgement may be included
as part of the respective assignment or participation agreement pursuant to
which such assignee or participant acquires an interest in the Loans or Letter
of Credit Interest hereunder); provided, further, that in no event shall any
Lender or the Administrative Agent be obligated or required to return any
materials furnished by any of the Obligors or any of their respective
Subsidiaries. The obligations of each Lender under this Section 12.12 shall
supersede and replace the obligations of such Lender under the confidentiality
letter in respect of this financing signed and delivered by such Lender to the
Company prior to the date hereof; in addition, the obligations of any assignee
that has executed a confidentiality agreement as provided above shall be
superseded by this Section 12.12 upon the date upon which such assignee becomes
a Lender hereunder pursuant to Section 12.06(b) hereof.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the day and year first above
written.
THE PARENT
COMMONWEALTH INDUSTRIES, INC.
By_________________________
Title:
Address for Notices:
Commonwealth Industries, Inc.
1200 Meidinger Tower
Louisville, Kentucky 40202
Attention: President
with a copy to:
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Attention: Erik Lindauer, Esq.
<PAGE>
HOLDINGS
CI HOLDINGS, INC.
By_________________________
Title:
THE BORROWERS
COMMONWEALTH ALUMINUM CORPORATION
By_________________________
Title:
ALFLEX CORPORATION
By_________________________
Title:
COMMONWEALTH ALUMINUM CONCAST, INC.
By_________________________
Title:
SUBSIDIARY GUARANTOR
COMMONWEALTH ALUMINUM SALES
CORPORATION
By_________________________
Title:
<PAGE>
LENDERS
NATIONAL WESTMINSTER BANK PLC
By_________________________
Title:
PNC BANK, NATIONAL ASSOCIATION
By_________________________
Title:
ABN AMRO BANK N.V.
By_________________________
Title:
BANK OF MONTREAL
By_________________________
Title:
CREDIT AGRICOLE INDOSUEZ
By_________________________
Title:
By_________________________
Title:
MELLON BANK, N.A.
By_________________________
Title:
THE INDUSTRIAL BANK
OF JAPAN, LIMITED
By_________________________
Title:
FIFTH THIRD BANK OF KENTUCKY, INC.
By_________________________
Title:
<PAGE>
THE ADMINISTRATIVE AGENT
NATIONAL WESTMINSTER BANK PLC,
as Administrative Agent
By_________________________
Title:
Address for Notices:
National Westminster Bank Plc
175 Water Street, 26th Floor
New York, New York
Attention: Drew Weinberg
with a copy to:
Gleacher NatWest, Inc.
660 Madison Avenue, 17th Floor
New York, NY 10021
<PAGE>
- 116 -
BII\93618_8
Credit Agreement
BII\93618_8
Credit Agreement
SCHEDULE I
Lenders and Commitments
Revolving Credit
Lender Commitment
NATIONAL WESTMINSTER BANK PLC $14,000,000.00
PNC BANK, NATIONAL ASSOCIATION 13,500,000.00
ABN AMRO BANK N.V. 13,000,000.00
BANK OF MONTREAL 13,000,000.00
CAISSE NATIONALE DE
CREDIT AGRICOLE 13,000,000.00
MELLON BANK, N.A. 13,000,000.00
THE INDUSTRIAL BANK OF JAPAN,
LIMITED 13,000,000.00
FIFTH THIRD BANK OF KENTUCKY, INC. 7,500,000.00
$100,000,000.00
<PAGE>
- 117 -
BII\93618_8
Revolving Credit Note
BII\93618_8
Revolving Credit Note
<PAGE>
- 2 -
BII\93618_8
Revolving Credit Note
- 1 -
BII\93618_8
Revolving Credit Note
EXHIBIT A-1
[Form of Revolving Credit Note]
PROMISSORY NOTE
$_______________ December __, 1997
New York, New York
FOR VALUE RECEIVED, each of COMMONWEALTH ALUMINUM CORPORATION,
ALFLEX CORPORATION and COMMONWEALTH ALUMINUM CONCAST, INC. (each a "Revolving
Credit Borrower" and, collectively, the "Revolving Credit Borrowers"), hereby
promises, jointly and severally, to pay to __________________ (the "Lender"),
for account of its respective Applicable Lending Offices provided for by the
Credit Agreement referred to below, at the principal New York office of National
Westminster Bank Plc at 175 Water Street, New York, New York 10038-4924, the
principal sum of _______________ Dollars (or such lesser amount as shall equal
the aggregate unpaid principal amount of the Revolving Credit Loans made by the
Lender to the Revolving Credit Borrowers under the Credit Agreement), in lawful
money of the United States of America and in immediately available funds, on the
dates and in the principal amounts provided in the Credit Agreement, and to pay
interest on the unpaid principal amount of each such Revolving Credit Loan, at
such office, in like money and funds, for the period commencing on the date of
such Revolving Credit Loan until such Revolving Credit Loan shall be paid in
full, at the rates per annum and on the dates provided in the Credit Agreement.
The date, amount, Type, interest rate and duration of Interest
Period (if applicable) of each Revolving Credit Loan made by the Lender to the
Revolving Credit Borrowers, and each payment made on account of the principal
thereof, shall be recorded by the Lender on its books and, prior to any transfer
of this Note, endorsed by the Lender on the schedule attached hereto or any
continuation thereof, provided that the failure of the Lender to make any such
recordation or endorsement shall not affect the obligations of the Revolving
Credit Borrowers to make a payment when due of any amount owing under the Credit
Agreement or hereunder in respect of the Revolving Credit Loans made by the
Lender.
This Note is one of the Notes referred to in the Second
Amended and Restated Credit Agreement dated as of December 19, 1997 (as so
amended and restated and as further modified and supplemented and in effect from
time to time, the "Credit Agreement") between Commonwealth Industries, Inc., CI
Holdings, Inc., the Revolving Credit Borrowers, the Subsidiary Guarantors party
thereto, the lenders party thereto (including the Lender) and National
Westminster Bank Plc, as Administrative Agent, and evidences Revolving Credit
Loans made by the Lender to the Revolving Credit Borrowers thereunder. Terms
used but not defined in this Note have the respective meanings assigned to them
in the Credit Agreement.
The Credit Agreement provides for the acceleration of the
maturity of this Note upon the occurrence of certain events and for prepayments
of Loans upon the terms and conditions specified therein.
Except as permitted by Section 12.06 of the Credit Agreement,
this Note may not be assigned by the Lender to any other Person.
This Note shall be governed by, and construed in accordance
with, the law of the State of New York.
COMMONWEALTH ALUMINUM CORPORATION
By_________________________
Title:
ALFLEX CORPORATION
By_________________________
Title:
COMMONWEALTH ALUMINUM CONCAST, INC.
By_________________________
Title:
<PAGE>
- 3 -
BII\93618_8
Revolving Credit Note
BII\93618_8
Revolving Credit Note
SCHEDULE OF REVOLVING CREDIT LOANS
This Note evidences Revolving Credit Loans made, Continued or
Converted under the within-described Credit Agreement to the Revolving Credit
Borrowers, on the dates, in the principal amounts, of the Types, bearing
interest at the rates and having Interest Periods (if applicable) of the
durations set forth below, subject to the payments, Continuations, Conversions
and prepayments of principal set forth below:
Amount Paid,
Date Made, Prepaid,
Continued or Duration Continued or
Converted Principal of Converted Unpaid
Amount of Type of Interest Interest Principal Notation
Loan Loan Rate Period Amount Made by
<PAGE>
- 2 -
BII\93618_8
Swingline Note
EXHIBIT A-2
[Form of Swingline Note]
PROMISSORY NOTE
$_______________ December __, 1997
New York, New York
FOR VALUE RECEIVED, each of COMMONWEALTH ALUMINUM CORPORATION,
ALFLEX CORPORATION and COMMONWEALTH ALUMINUM CONCAST, INC. (each a "Revolving
Credit Borrower" and, collectively, the "Revolving Credit Borrowers"), hereby
promises, jointly and severally, hereby promises to pay to NATIONAL WESTMINSTER
BANK PLC (the "Lender"), for account of its respective Applicable Lending
Offices provided for by the Credit Agreement referred to below, at the principal
New York office of the Lender at 175 Water Street, New York, New York
10038-4924, the principal sum of _______________ Dollars (or such lesser amount
as shall equal the aggregate unpaid principal amount of the Swingline Loans made
by the Lender to the Revolving Credit Borrowers under the Credit Agreement), in
lawful money of the United States of America and in immediately available funds,
on the dates and in the principal amounts provided in the Credit Agreement, and
to pay interest on the unpaid principal amount of each such Swingline Loan, at
such office, in like money and funds, for the period commencing on the date of
such Swingline Loan until such Swingline Loan shall be paid in full, at the
rates per annum and on the dates provided in the Credit Agreement.
The date and amount of each Swingline Loan made by the Lender
to the Revolving Credit Borrowers, and each payment made on account of the
principal thereof, shall be recorded by the Lender on its books and, prior to
any transfer of this Note, endorsed by the Lender on the schedule attached
hereto or any continuation thereof, provided that the failure of the Lender to
make any such recordation or endorsement shall not affect the obligations of the
Revolving Credit Borrowers to make a payment when due of any amount owing under
the Credit Agreement or hereunder in respect of the Swingline Loans made by the
Lender.
This Note is one of the Notes referred to in the Second
Amended and Restated Credit Agreement dated as of December 19, 1997 (as so
amended and restated and as further modified and supplemented and in effect from
time to time, the "Credit Agreement") between Commonwealth Industries, Inc., CI
Holdings, Inc., the Revolving Credit Borrowers, the Subsidiary Guarantors party
thereto, the lenders party thereto (including the Lender) and National
Westminster Bank Plc, as Administrative Agent, and evidences Swingline Loans
made by the Lender thereunder. Terms used but not defined in this Note have the
respective meanings assigned to them in the Credit Agreement.
<PAGE>
- 2 -
BII\93618_8
Swingline Note
- 2 -
Swingline Note
The Credit Agreement provides for the acceleration of the
maturity of this Note upon the occurrence of certain events and for prepayments
of Loans upon the terms and conditions specified therein.
Except as permitted by Section 12.06 of the Credit Agreement,
this Note may not be assigned by the Lender to any other Person.
This Note shall be governed by, and construed in accordance
with, the law of the State of New York.
COMMONWEALTH ALUMINUM CORPORATION
By_________________________
Title:
ALFLEX CORPORATION
By_________________________
Title:
COMMONWEALTH ALUMINUM CONCAST, INC.
By_________________________
Title:
<PAGE>
- 3 -
Swingline Note
BII\93618_8
Swingline Note
SCHEDULE OF SWINGLINE LOANS
This Note evidences Swingline Loans made under the
within-described Credit Agreement to the Revolving Credit Borrowers, on the
dates and in the principal amounts set forth below, subject to the payments and
prepayments of principal set forth below:
Amount Unpaid
Principal Paid or Principal Notation
Date Made Amount of Loan Prepaid Amount Made by
<PAGE>
- 1 -
Borrowing Base Certificate
- 1 -
Borrowing Base Certificate
BII\94604_2 02/09/98 11:18am
Amendment No. 1 to Pledge and Security Agreement
AMENDMENT NO. 1
AMENDMENT NO. 1 dated as of December 19, 1997 to the Amended
and Restated Pledge and Security Agreement dated as of November 29, 1996
referred to below between:
(1) COMMONWEALTH INDUSTRIES, INC. (formerly known as
Commonwealth Aluminum Corporation), a corporation duly organized and validly
existing under the laws of the State of Delaware (the "Parent");
(2) CI HOLDINGS INC. (formerly known as Commonwealth
Industries, Inc.), a corporation duly organized and validly existing
under the laws of the State of Delaware ("Holdings");
(3) COMMONWEALTH ALUMINUM CORPORATION (formerly known as
Commonwealth Aluminum Lewisport, Inc.), a corporation duly organized
and validly existing under the laws of the State of Delaware ("CAC");
(4) ALFLEX CORPORATION, a corporation duly organized and
validly existing under the laws of the State of Delaware ("Alflex");
(5) COMMONWEALTH ALUMINUM CONCAST, INC. (formerly named Barmet
Aluminum Corporation), a corporation duly organized and validly
existing under the laws of the State of Ohio ("CACI");
(6) each of the Subsidiaries of the Parent identified under
the caption "SUBSIDIARY GUARANTORS" on the signature pages hereto
(each, a "Subsidiary Guarantor" and, collectively, the "Subsidiary
Guarantors" and together with the Parent, Holdings, CAC, Alflex and
Barmet, the "Securing Parties"); and
(7) NATIONAL WESTMINSTER BANK PLC, as administrative agent for
the Lenders (in such capacity, together with its successors in such
capacity, the "Administrative Agent").
The Parent, Holdings, CAC, Alflex, CACI, the Subsidiary
Guarantors, certain lenders and the Administrative Agent entered into an Amended
and Restated Credit Agreement dated as of November 29, 1996 (as in effect on the
date hereof, the "Existing Credit Agreement"), which amended and restated the
Credit Agreement dated as of September 20, 1996, providing for extensions of
credit to be made to the Borrowers in an aggregate principal amount not
exceeding $325,000,000. In connection with the execution and delivery of the
Existing Credit Agreement, the Parent, CAC, certain other of the Securing
Parties and the Administrative Agent entered into an Amended and Restated Pledge
and Security Agreement dated as of November 29, 1996 (as in effect on the date
hereof, the "Pledge and Security Agreement") pursuant to which said Securing
Parties granted to the Administrative Agent a security interest in all of the
Collateral (as defined therein) as collateral security for the Secured
Obligations (as so defined).
The Parent, Holdings, CAC, Alflex, CACI, the Subsidiary
Guarantors, the Lenders and the Administrative Agent are amending and restating
the Existing Credit Agreement pursuant to a Second Amended and Restated Credit
Agreement dated as of December 19, 1997 (as heretofore modified and supplemented
and in effect on the date hereof, the "Credit Agreement"). In connection with
the execution and delivery of the Credit Agreement, the Obligors wish to amend
the Pledge and Security Agreement in certain respects, and accordingly, the
parties hereto hereby agree as follows:
Section 1. Definitions. Except as otherwise defined in this
Amendment No. 1, terms defined in the Pledge and Security Agreement are used
herein as defined therein.
Section 2. Amendments. Effective as of the date hereof
(subject to satisfaction of the conditions set forth in Section 4 hereof), the
Pledge and Security Agreement shall be amended as follows:
A. General. Each reference in the Pledge and Security
Agreement to "this Agreement", "the Pledge and Security Agreement" or
words of similar import shall be deemed to refer to the Pledge and
Security Agreement as amended hereby.
B. Credit Agreement. Each reference in the Pledge and Security
Agreement to "the Credit Agreement" or words of similar import shall be deemed
to refer to the Credit Agreement.
C. Annexes. Each reference in the Pledge and Security
Agreement to an Annex thereto shall be deemed to refer to the respective Annex
of the same number attached to this Amendment No. 1.
Section 3. Representations and Warranties. Each Securing Party
represents and warrants to the Lenders and the Administrative Agent that the
representations and warranties of such Securing Party set forth in Section 2 of
the Pledge and Security Agreement are true and complete in all material respects
on the date hereof (or, if any such representation and warranty is expressly
stated to have been made as of a specific date, as of such specific date) and as
if each reference therein to any Annex referred to the respective numbered Annex
attached to this Amendment No. 1.
Section 4. Conditions Precedent. The amendments in Section 2
hereof shall become effective as of the date hereof upon receipt by the
Administrative Agent of one or more counterparts of this Amendment No. 1
executed by each of the Securing Parties (or evidence satisfactory to the
Administrative Agent of such execution) and the Administrative Agent.
Section 5. Miscellaneous. Except as expressly herein
provided, the Pledge and Security Agreement shall remain unchanged and in full
force and effect. The Parent shall reimburse the Administrative Agent for all
reasonable out-of-pocket costs and expenses (including reasonable legal fees
and disbursements)incurred by it in connection with this Amendment No. 1.
This Amendment No. 1 may be executed in any number of counterparts, all of
which taken together shall constitute one and the same amendatory instrument
and any of the parties hereto may execute this Amendment No. 1 by signing any
such counterpart. This Amendment No. 1 shall be governed by, and construed in
accordance with, the law of the State of New York.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 1 to the Pledge and Security Agreement to be duly executed and
delivered as of the day and year first above written.
COMMONWEALTH INDUSTRIES, INC.
By
Title:
CI HOLDINGS INC.
By
Title:
COMMONWEALTH ALUMINUM CORPORATION
By
Title:
ALFLEX CORPORATION
By
Title:
COMMONWEALTH ALUMINUM CONCAST, INC.
By
Title:
SUBSIDIARY GUARANTOR
COMMONWEALTH ALUMINUM SALES CORPORATION
By
Title:
<PAGE>
THE ADMINISTRATIVE AGENT
NATIONAL WESTMINSTER BANK PLC,
as Administrative Agent
By
Title:
Exhibit 11
----------
Commonwealth Industries, Inc.
Computation of Net Income Per Share
(in thousands except per share data)
<TABLE>
<CAPTION>
1997 1996 1995
---- ---- ----
<S> <C> <C> <C>
Income (numerator) amounts used for basic and diluted per share computations:
Income before extraordinary loss $ 9,122 $ 14,756 $ 33,787
Extraordinary loss (1,181) (1,355) -
----------------------------------
Net income $ 7,941 $ 13,401 $ 33,787
==================================
Shares (denominator) used for basic per share computations:
Weighted average shares of common stock outstanding 11,687 10,197 10,191
==================================
Shares (denominator) used for diluted per share computations:
Weighted average shares of common stock outstanding 11,687 10,197 10,191
Plus: dilutive effect of stock options 36 6 8
----------------------------------
Adjusted weighted average shares 11,723 10,203 10,199
==================================
Net income per share data:
Basic
Income before extraordinary loss $ 0.78 $ 1.45 $ 3.32
Extraordinary loss (0.10) (0.13) -
----------------------------------
Net income $ 0.68 $ 1.32 $ 3.32
==================================
Diluted
Income before extraordinary loss $ 0.78 $ 1.45 $ 3.31
Extraordinary loss (0.10) (0.13) -
----------------------------------
Net income $ 0.68 $ 1.32 $ 3.31
==================================
</TABLE>
Exhibit 13
----------
Portions of the annual report to stockholders for the year ended December 31,
1997 which are expressly incorporated by reference in this filing follow. Such
items are proceeded by an index which shows the location in this Annual Report
on Form 10-K where such items are incorporated by reference and the location of
the item in the annual report to stockholders for the year ended December 31,
1997.
INDEX
-----
Reference Incorporation Page number
letter in location in in annual
this this report to
Exhibit Form 10-K Description of Item stockholders
- -------- ----------- --------------------------- ------------
(A) Part II, item 6 Consolidated Selected page 10
Financial Data
(B) Part II, item 7 Management's Discussion and pages 11
Analysis of Financial Condition thru 14
and Results of Operations
(C) Part II, item 8 Consolidated Balance Sheet page 15
Part II, item 8 Consolidated Statement of Income page 16
Part II, item 8 Consolidated Statement of page 17
Changes in Stockholders'
Equity
Part II, item 8 Consolidated Statement of page 18
Cash Flows
Part II, item 8 Notes to Consolidated pages 19
Financial Statements thru 30
Part II, item 8 Report of Independent Auditors page 31
The items follow:
<PAGE>
Exhibit 13 item (A)
-------------------
COMMONWEALTH INDUSTRIES, INC.
Consolidated Selected Financial Data
(in thousands except per share amounts)
<TABLE>
<CAPTION>
Year ended December 31,
----------------------------------------------------------------------------------------
1997 1996 1995 1994 1993
-------------- ------------ ------------ ------------- ------------
<S> <C> <C> <C> <C> <C>
Statement of Operations Data:
Net sales $ 1,090,777 $ 739,218 $ 671,501 $ 496,529 $ 413,036
Gross profit 88,043 49,312 64,750 41,406 5,475
Operating income (loss) 41,593 19,262 42,240 20,262 (15,987)
Income (loss) before extraordinary loss and
cumulative effect of change in accounting
principle 9,122 14,756 33,787 22,091 (11,578)
Income (loss) before cumulative
effect of change in accounting principle 7,941 13,401 33,787 22,091 (11,578)
Net income (loss) 7,941 13,401 33,787 22,091 (77,993)
Net income per share data: (1)
Basic
Income before extraordinary loss $ 0.78 $ 1.45 $ 3.32
Extraordinary loss (0.10) (0.13) -
------------- ------------ ------------
Net income $ 0.68 $ 1.32 $ 3.32
============= ============ ============
Diluted
Income before extraordinary loss $ 0.78 $ 1.45 $ 3.31
Extraordinary loss (0.10) (0.13) -
------------- ------------ ------------
Net income $ 0.68 $ 1.32 $ 3.31
============= ============ ============
Cash dividends declared $ 0.20 $ 0.20 $ 0.15
Operating Data:
Depreciation and amortization $ 34,710 $ 22,452 $ 18,600 $ 17,397 $ 16,538
Capital expenditures $ 21,736 $ 14,841 $ 15,153 $ 19,662 $ 12,092
Commonwealth Aluminum business unit:
Net sales $ 964,012 $ 704,400 $ 671,501 $ 496,529 $ 413,036
Shipments (pounds) 990,207 712,480 587,932 568,970 511,887
Alflex business unit:
Net sales $ 126,765 $ 34,818
Shipments (feet) 521,711 136,936
Balance Sheet Data:
Working capital $ 112,924 $ 207,061 $ 153,292 $ 134,026 $ (15,197)
Total assets 667,421 794,582 420,684 439,454 357,557
Total debt 125,650 342,250 48,375 - 125,000
Total stockholders' equity 330,473 227,223 213,063 242,690 93,824
</TABLE>
(1) Net income per share data for prior periods has been restated to reflect
the adoption of Statement of Financial Accounting Standards No. 128,
"Earnings Per Share".
<PAGE>
Exhibit 13 item (B)
-------------------
COMMONWEALTH INDUSTRIES, INC.
Management's Discussion and Analysis of Financial Condition and Results of
Operations
The following is a discussion of the consolidated financial condition
and results of operations of the Company for each of the years in the three-year
period ended December 31, 1997, and certain factors that may affect the
Company's prospective financial condition. This section should be read in
conjunction with the consolidated financial statements of the Company for the
year ended December 31, 1997 and the notes thereto. The statements included in
this discussion and analysis of financial condition and results of operations
which are not historical facts are forward-looking statements. These
forward-looking statements are made pursuant to the safe harbor provisions of
the Private Securities Litigation Act of 1995 and involve risks and
uncertainties that could render them materially different, including, but not
limited to, the effect of global economic conditions, the impact of competitive
products and pricing, product development and commercialization, availability
and cost of critical raw materials, the rate of technological change, product
demand and market acceptance risks, capacity and supply constraints or
difficulties and other risks as detailed in the Company's various Securities and
Exchange Commission filings.
Overview
The Company manufactures non-heat treat coiled aluminum sheet for
distributors and the transportation, construction and consumer durables end use
markets and electrical flexible conduit and prewired armored cable for the
non-residential construction and renovation markets. The Company's principal raw
materials are aluminum scrap, primary aluminum, copper and steel. Trends in the
demand for aluminum sheet products in the United States and in the prices of
aluminum primary metal, aluminum scrap and copper affect the business of the
Company. The Company's operating results also are affected by factors specific
to the Company, such as the margins between selling prices for its products and
its cost of raw material ("material margins") and its unit cost of converting
raw material into its products ("conversion cost"). While changes in aluminum
and copper prices can cause the Company's net sales to change significantly from
period to period, net income is more directly impacted by fluctuations in
material margins.
Although the demand for aluminum sheet products is cyclical, over the
longer term demand has continued to increase, reflecting general population and
economic growth and the advantages of aluminum's light weight, high degree of
formability, resistance to corrosion and recyclability. United States shipments
of aluminum sheet have grown from 8.4 billion pounds in 1992 to 9.2 billion
pounds in 1996. Aluminum sheet shipments for 1997 were up 7% over 1996.
The price of aluminum metal affects the price of the Company's products
and in the longer term can have an effect on the competitive position of
aluminum in relation to alternative materials. The price of primary metal is
determined largely by worldwide supply and demand conditions and is highly
cyclical. For example, during the past 10 years the average annual cash price
per pound of aluminum for transactions on the London Metals Exchange peaked at
$1.17 in 1988, declined to $0.52 in 1993, rose to $0.82 in 1995, declined to
$0.68 in 1996 and was $0.73 in 1997. The price of primary aluminum in world
markets greatly influences the price of aluminum scrap, the Company's principal
raw material. Significant movements in the price of primary aluminum can affect
the Company's margins because aluminum sheet prices do not always move
simultaneously nor necessarily to the same degree as the primary markets. The
Company seeks to manage its material margins by focusing on higher margin
products and by sourcing the scrap and primary metal markets in the most
cost-effective manner, including the use of futures contracts and options to
hedge anticipated raw material requirements and firm-priced sales orders.
The Company's material margins declined in the early 1990s, principally
due to excess capacity in the industry and reduced demand as a result of
recessionary economic conditions which caused aluminum sheet prices to decrease
faster than raw material prices. Margins increased during 1994 and 1995 due to a
change in product mix to higher margin products and increased demand. During
1996 margins declined to the lowest level since 1993 as distributors and
end-users reduced inventory levels and activity in some end-use markets
declined. While demand for aluminum sheet products increased during 1997, this
increased demand has not resulted in improved material margins as these margins
contracted slightly during the last three quarters of 1997 compared to the
fourth quarter of 1996 and the first quarter of 1997. The margin between the
price of aluminum scrap and the price of primary aluminum decreased during 1997
compared to 1996.
During the past five years the Company has lowered its unit conversion
costs by increasing production throughput and by reducing costs. This has been
achieved generally through improved employee productivity, higher machine
utilization rates and greater manufacturing efficiencies. The Company believes
its conversion costs to be among the lowest in the industry.
Shipments of electrical conduit and cable continued to increase during
1996 and 1997 as demand in the construction, renovation and remodeling markets
remained strong. Capital investments made during 1997 to increase the Company's
electrical conduit and cable manufacturing capacity have resulted in higher
production levels to support increased demand for the Company's products. During
the second half of 1997 the Company's margin for electrical and conduit cable
products increased due to declining copper prices.
On September 20, 1996, the Company acquired CasTech Aluminum Group
Inc., ("CasTech") in a transaction that was accounted for under the purchase
method of accounting at a cost of $285 million. Concurrently with the
acquisition, the Company prepaid its existing indebtedness and that of CasTech.
The acquisition and prepayments were financed with a $325 million senior secured
bank credit facility (which has subsequently been reduced - see note 7 to the
consolidated financial statements) and the proceeds from the issue and sale of
$125 million principal amount of 10 3/4% Senior Subordinated Notes Due 2006.
Results of Operations for 1997, 1996 and 1995
Net Sales. Net sales for 1997 increased 48% to $1.1 billion (including
$126.8 million from the Company's Alflex electrical products subsidiary) from
$739.2 million (including $34.8 million from Alflex) in 1996. The increase is
due to the CasTech acquisition along with increased sales volumes at all
facilities. Unit sales volume of aluminum products increased 39% to 990.2
million pounds in 1997 from 712.5 million pounds in 1996. Alflex unit sales
volume was 521.7 million feet for 1997 compared to 136.9 million feet for 1996.
Giving pro forma effect for the 1996 CasTech acquisition, the Company's aluminum
rolling mills generated 5% growth in shipments during 1997 while its Alflex
electrical products subsidiary achieved 8% growth. These gains reflected the
Company's ability to complete the integration of CasTech's operations and
systems successfully, optimizing the product mix between the Company's plants
and achieving the operating synergies envisioned at the time of the CasTech
acquisition.
In 1996 net sales grew 10% to $739.2 million from $671.5 million in
1995. The acquisition of CasTech accounted for $109.5 million of 1996 sales.
Average selling prices for aluminum sheet products decreased 13.2% to $0.99 per
pound from $1.14 per pound in 1995. This decline reflected lower metal costs and
competitive pressures as demand weakened. Despite these competitive pressures,
unit sales increased 21.2% to 712.5 million pounds as the result of the Company
increasing its market share.
Gross Profit. Gross profit increased 78.5% (to 8.1% of net sales) in
1997 after a 23.8% decrease (to 6.7% of net sales) in 1996. The 1997 increase
was attributable to the CasTech acquisition, increased unit sales volumes and
lower manufacturing unit costs which more than offset lower material margins.
The 1996 decrease was primarily a result of a reduction in the material margin
to approximately $0.30 per pound from $0.36 in 1995.
Selling, General and Administrative Expenses. Selling, general and
administrative expenses increased 45.5% in 1997, primarily due to the CasTech
acquisition. Contributing to the increase were corporate relocation , severance
and other costs related to the integration of the businesses. Giving pro forma
effect for the 1996 CasTech acquisition, selling, general and administrative
expenses declined 3.4% in 1997 compared to 1996. The 1996 figure was up 33.5%
over 1995, primarily due to the CasTech acquisition, staffing changes and the
cost of professional services.
Amortization of Goodwill. Goodwill, which relates to the CasTech
acquisition, increased $3.3 million in 1997 compared to 1996 reflecting a full
year of amortization in 1997 versus a partial year in 1996.
Operating Income. Operating income increased by 115.9% in 1997 to $41.6
million, compared with a 1996 decrease of 54.4% to $19.3 million, in each case
reflecting the factors mentioned above.
Halco Income. Prior to March 1995, the Company had an interest in Halco
(Mining) Inc., and received dividends and income from bauxite sales amounting to
$1.6 million in 1995. This investment was distributed to the Company's prior
owner in March 1995 in a transaction associated with the disposition of the
owner's interest in the Company.
Other Income (Expense), Net. Other income in 1995 included $2.6 million
resulting from the favorable settlement of a dispute with the Kentucky Revenue
Cabinet over energy taxes.
Interest Expense, Net. The increase in interest expense in 1997 and
1996 is due to borrowings associated with the CasTech acquisition. The
borrowings were reduced at the end of the third quarter of 1997 as described in
the "Liquidity and Capital Resources" section following. This reduction in
borrowings coupled with the reduced interest rates due to the accounts
receivable securitization facility led to a reduction in interest expense during
the fourth quarter of 1997. Interest expense was $5.5 million for the fourth
quarter of 1997 compared to $8.7 million for the third quarter of 1997.
Income Tax Expense (Benefit). Income tax expense (benefit) in 1997,
1996 and 1995 reflect the use of the Company's net operating loss carryforwards
(NOLs) to offset taxable income for federal income tax purposes. At December 31,
1997, the Company had remaining available NOLs of approximately $93 million.
These NOLs will expire in various amounts through 2008. The amount of taxable
income that can be offset by NOLs arising prior to the initial public offering
of the Company in March 1995 is subject to an annual limitation of approximately
$9.6 million plus certain gains included in taxable income which are
attributable to the Company prior to the initial public offering.
Income tax expense for 1997 was $2.4 million. The Company recognized an
income tax benefit in 1996 of $5.3 million as a result of revisions to prior
year tax estimates and adjustments to the estimated utilization of NOLs.
Extraordinary Loss on Early Extinguishment of Debt. The Company
recorded an extraordinary loss on the early extinguishment of debt in both 1997
and 1996 of $1.5 million ($1.2 million and $1.4 million net of income tax
benefit, respectively).
Net Income. Net income for 1997 decreased 41% to $7.9 million, after a
60% decrease in 1996 over 1995, in each case reflecting the factors described
above for each year.
Liquidity and Capital Resources
The Company's sources of liquidity are cash flows from operations and
the Company's accounts receivable securitization facility described below and
borrowings under its $100 million revolving credit facility. The Company
believes that these sources will be sufficient to fund its working capital
requirements, capital expenditures, debt service and dividend payments for at
least through 1998.
On September 29, 1997, the Company completed a common stock offering of
5.75 million shares at a public offering price of $18 per share. The net
proceeds from the offering of approximately $97.7 million were used to repay the
entire amount outstanding under the Company's term loan agreement, totaling
$95.0 million, as well as $2.7 million outstanding under the Company's revolving
credit facility.
On September 26, 1997, the Company sold all of its trade accounts
receivables to a 100% owned subsidiary, Commonwealth Financing Corp. ("CFC").
Simultaneously, CFC entered into a three-year accounts receivable securitization
facility with a financial institution and its affiliate whereby CFC can sell, on
a revolving basis, an undivided interest in certain of its receivables and
receive up to $150.0 million from an unrelated third party purchaser at a cost
of funds linked to commercial paper rates plus a charge for administrative and
credit support services. At December 31, 1997, the Company had received $150.0
million under the agreement and had $39.7 million of net residual interest in
the securitized receivables which is included in other current assets in the
Company's consolidated financial statements.
The Company's cash flows from operations in 1997, 1996 and 1995 were
$134.7 million, $42.0 million and $20.2 million, respectively. The increase in
cash flow from operations in 1997 was due primarily to the accounts receivable
securitization while the increase in cash flow from operations in 1996 was due
primarily to a decrease in working capital, before giving effect to the CasTech
acquisition, which more than offset a reduction in operating earnings. Working
capital decreased to $112.9 million at December 31, 1997 from $207.1 million at
December 31, 1996, due to the accounts receivable securitization. The increase
in 1996 was principally a result of the CasTech acquisition.
The Company's revolving credit facility permits borrowings and letters
of credit up to $100.0 million outstanding at any time. Availability is subject
to satisfaction of certain covenants and other requirements. At December 31,
1997, $98.7 million was available. The facility expires on September 1, 2002.
Capital expenditures were $21.7 million, $14.8 million plus the cost of
the CasTech acquisition and $15.2 million in 1997, 1996 and 1995, respectively,
and are estimated to be $49 million in 1998, all generally related to upgrading
the Company's manufacturing and other facilities and meeting environmental
requirements.
The indicated annual rate of dividends being paid on the Company's
Common Stock is $0.20 per share, or an annual total of about $3.2 million.
Risk Management
Market and credit risk is managed by the Company through an active risk
management program. This program focuses on inventory, purchase commitments and
committed and anticipated sales.
The Company utilizes futures contracts and options to protect against exposures
to price risk in the aluminum market. The Company is exposed to losses in the
event of non-performance by the counter- parties to these agreements; however,
the Company does not anticipate non-performance by the counterparties. Prior to
conducting business with a potential customer, credit checks are performed on
the customer to determine creditworthiness and assess credit risk. In addition,
an indirect credit exposure review is performed on all customers. Trading
partners (brokers) are evaluated for creditworthiness and risk assessment prior
to initiating trading activities with the brokers. However, the Company does not
require collateral to support broker transactions. In addition, all brokers
trading on the London Metal Exchange with U.S. clients are regulated by the
Commodities Trading and Futures Commission, which requires the brokers to be
fully insured against unrealized losses owed to clients. At December 31, 1997,
credit lines totaling $52 million were available at various brokerages used by
the Company.
Gains, losses and premiums on futures contracts and options which
effectively hedge exposures are deferred and included in income as a component
of the underlying sales transaction. The Company had deferred realized losses of
$1.5 million and deferred realized gains of $0.4 million as of December 31, 1997
and 1996, respectively on closed futures contracts and options. Deferred
realized losses are recorded as an increase in the carrying value of inventory
and deferred realized gains are recorded as a reduction in the carrying value of
inventory.
At December 31, 1997, the Company held purchase and sales commitments
through 1998 totaling $56 million and $328 million, respectively. At December
31, 1997 and 1996, the Company's position with respect to aluminum futures
contracts and options was as follows (in millions):
Market Unrealized
Value Gain
------- ----------
December 31, 1997 $123.9 $ 0.3
December 31, 1996 57.9 2.2
Unrealized gains and losses are recorded in the consolidated balance
sheet as prepayments and other current assets and accrued liabilities. The
unrealized gain of $0.3 million at December 31, 1997 consists of unrealized
gains due from brokers of $0.6 million and unrealized losses due to brokers of
$0.3 million. Futures contracts and options are valued at the closing price on
the last business day of the year.
The Company uses interest rate swap agreements to manage interest rate
risk on its floating rate debt portfolio. At December 31, 1997 the Company had
interest rate swap contracts with a notional amount of approximately $67
million. The counterparties to interest rate contracts are major commercial
banks and management believes that losses related to credit risk are remote.
The Company has initiated a company-wide program to prepare the
Company's computer systems and applications for the year 2000. The year 2000
problem is the result of computer programs being written using two digits rather
than four to define the applicable year. Any of the Company's programs that have
time-sensitive software may recognize a date using "00" as the year 1900 rather
than the year 2000. This could result in a major system failure or
miscalculations. At December 31, 1997, approximately 50 percent of the Company's
systems were compliant, with all systems expected to be compliant by the end of
the first quarter of 1999. The total cost of the project is estimated to be $7.0
million and is being funded through operating cash flows. Maintenance or
modification costs are being expensed as incurred, while the costs of new
software is being capitalized and amortized over the software's useful life. The
Company presently believes that, with modifications to existing software and
converting to new software, the year 2000 problem will not pose significant
operational problems for the Company's computer systems as so modified and
converted. However, if such modifications and conversions are not completed
timely, the year 2000 problem may have a material impact on the operations of
the Company.
Recently Issued Accounting Pronouncements
During February 1997, the Financial Accounting Standards Board issued
Statement of Financial Accounting Standards No. 128, "Earnings Per Share" ("SFAS
No. 128"). The Company adopted SFAS No. 128 during the fourth quarter of 1997 as
required. Prior-period net income per share data has been restated to reflect
the adoption of SFAS No. 128.
During June 1997, the Financial Accounting Standards Board issued
Statement of Financial Accounting Standards No. 131, "Disclosures about Segments
of an Enterprise and Related Information" ("SFAS No. 131"). The Company will
adopt SFAS No. 131 during the fourth quarter of 1998 as required.
<PAGE>
Exhibit 13 item (C)
-------------------
COMMONWEALTH INDUSTRIES, INC.
Consolidated Balance Sheet
(in thousands except share data)
<TABLE>
<CAPTION>
December 31,
--------------------------------------
1997 1996
------------- -------------
<S> <C> <C>
Assets
Current assets:
Cash and cash equivalents $ - $ 1,944
Accounts receivable, net 355 146,091
Inventories 171,633 173,911
Prepayments and other current assets 45,107 10,056
------------- -------------
Total current assets 217,095 332,002
Property, plant and equipment, net 266,292 274,095
Goodwill, net 173,562 175,146
Other noncurrent assets 10,472 13,339
------------- -------------
Total assets $ 667,421 $ 794,582
============= =============
Liabilities
Current liabilities:
Outstanding checks in excess of deposits $ 9,122 $ -
Current portion of long-term debt - 6,250
Accounts payable 67,881 82,340
Accrued liabilities 27,168 36,351
------------- -------------
Total current liabilities 104,171 124,941
Long-term debt 125,650 336,000
Other long-term liabilities 9,675 14,584
Accrued pension benefits 13,368 10,610
Accrued postretirement benefits 84,084 81,224
------------- -------------
Total liabilities 336,948 567,359
------------- -------------
Commitments and contingencies - -
Stockholders' Equity
Common stock, $.01 par value, 50,000,000 shares authorized,
15,941,500 and 10,197,500 shares outstanding at
December 31, 1997 and 1996, respectively 159 102
Additional paid-in capital 398,757 301,289
Accumulated deficit (66,575) (72,188)
Unearned compensation (1,172) (1,980)
Minimum pension adjustment (696) -
------------- -------------
Total stockholders' equity 330,473 227,223
------------- -------------
Total liabilities and stockholders' equity $ 667,421 $ 794,582
============= =============
</TABLE>
See notes to consolidated financial statements.
<PAGE>
COMMONWEALTH INDUSTRIES, INC.
Consolidated Statement of Income
(in thousands except per share data)
<TABLE>
<CAPTION>
Year ended December 31,
---------------------------------------------------
1997 1996 1995
-------------- ------------ ------------
<S> <C> <C> <C>
Net sales $1,090,777 $ 739,218 $ 671,501
Cost of goods sold 1,002,734 689,906 606,751
-------------- ------------ ------------
Gross profit 88,043 49,312 64,750
Selling, general and administrative expenses 41,972 28,841 22,510
Amortization of goodwill 4,478 1,209 -
-------------- ------------ ------------
Operating income 41,593 19,262 42,240
Halco income - - 1,636
Other income (expense), net 487 76 2,670
Interest expense, net (30,536) (9,875) (3,473)
-------------- ------------ ------------
Income before income taxes and extraordinary loss 11,544 9,463 43,073
Income tax expense (benefit) 2,422 (5,293) 9,286
-------------- ------------ ------------
Income before extraordinary loss 9,122 14,756 33,787
Extraordinary loss on early extinguishment of debt,
net of income tax benefit (1,181) (1,355) -
-------------- ------------ ------------
Net income $ 7,941 $ 13,401 $ 33,787
============== ============ ============
Net income per share data:
Basic
Income before extraordinary loss $ 0.78 $ 1.45 $ 3.32
Extraordinary loss (0.10) (0.13) -
-------------- ------------ ------------
Net income $ 0.68 $ 1.32 $ 3.32
============== ============ ============
Diluted
Income before extraordinary loss $ 0.78 $ 1.45 $ 3.31
Extraordinary loss (0.10) (0.13) -
-------------- ------------ ------------
Net income $ 0.68 $ 1.32 $ 3.31
============== ============ ============
Weighted average shares outstanding
Basic 11,687 10,197 10,191
Diluted 11,723 10,203 10,199
</TABLE>
See notes to consolidated financial statements.
<PAGE>
COMMONWEALTH INDUSTRIES, INC.
Consolidated Statement of Changes in Stockholders' Equity
(in thousands except share and per share data)
<TABLE>
<CAPTION>
Common Stock
---------------------- Additional Minimum Total
Number of Paid-in Accumulated Unearned Pension Stockholders'
Shares Amount Capital Deficit Compensation Adjustment Equity
---------- -------- ----------- ------------ ------------ ---------- ------------
<S> <C> <C> <C> <C> <C> <C> <C>
Balance December 31, 1994 - $ - $ 358,498 $ (115,808) $ - $ - $ 242,690
Net income - - - 33,787 - - 33,787
Cash dividends, $0.15 per share - - - (1,528) - - (1,528)
Minimum pension adjustment - - - - - (2,269) (2,269)
Capital transactions associated
with Initial Public Offering 10,000,000 100 (60,116) - - - (60,016)
Issuance of restricted stock 202,500 2 2,895 - (2,897) - -
Forfeiture of restricted stock (12,500) - (163) - 163 - -
Amortization of unearned compensation - - - - 399 - 399
---------- -------- --------- --------- -------- ---------- ---------
Balance December 31, 1995 10,190,000 102 301,114 (83,549) (2,335) (2,269) 213,063
Net income - - - 13,401 - - 13,401
Cash dividends, $0.20 per share - - - (2,040) - - (2,040)
Minimum pension adjustment - - - - - 2,269 2,269
Issuance of restricted stock 25,000 - 420 - (420) - -
Forfeiture of restricted stock (17,500) - (245) - 245 - -
Amortization of unearned compensation - - - - 530 - 530
---------- -------- --------- --------- -------- ---------- ---------
Balance December 31, 1996 10,197,500 102 301,289 (72,188) (1,980) - 227,223
Net income - - - 7,941 - - 7,941
Cash dividends, $0.20 per share - - - (2,328) - - (2,328)
Minimum pension adjustment - - - - - (696) (696)
Stock offering 5,750,000 57 97,585 - - - 97,642
Issuance of restricted stock 2,500 - 47 - (47) - -
Forfeiture of restricted stock (22,500) - (399) - 399 - -
Amortization of unearned compensation - - - - 456 - 456
Exercise of stock options 9,000 - 151 - - - 151
Stock awards 5,000 - 84 - - - 84
---------- --------- --------- --------- -------- ----------- ---------
Balance December 31, 1997 15,941,500 $ 159 $ 398,757 (66,575) $ (1,172) $ (696) $ 330,473
========== ========= ========= ========= ======== =========== =========
</TABLE>
See notes to consolidated financial statements.
<PAGE>
COMMONWEALTH INDUSTRIES, INC.
Consolidated Statement of Cash Flows
(in thousands)
<TABLE>
<CAPTION>
Year ended December 31,
---------------------------------------------------
1997 1996 1995
------------ ------------- -----------
<S> <C> <C> <C>
Cash flows from operating activities:
Net income $ 7,941 $ 13,401 $ 33,787
Adjustments to reconcile net income to net cash provided by operations:
Depreciation and amortization 34,710 22,452 18,600
Extraordinary loss on early extinguishment of debt 1,495 1,505 -
Loss on disposal of property, plant and equipment 1,271 - -
Issuance of common stock in connection with stock awards 84 - -
Proceeds from the initial sale of accounts receivable 150,000 - -
Changes in assets and liabilities:
(Increase) decrease in accounts receivable, net (46,650) 12,636 6,608
Decrease (increase) in inventories 2,278 (1,563) (22,880)
Decrease (increase) in prepayments and other current assets 6,970 7,819 (1,816)
Decrease (increase) in other noncurrent assets 201 (1,425) (3,642)
(Decrease) in accounts payable (14,459) (3,248) (13,075)
(Decrease) in accrued liabilities (9,183) (1,972) (251)
Increase (decrease) in other liabilities 13 (7,570) 2,836
------------ ------------- -----------
Net cash provided by operating activities 134,671 42,035 20,167
------------ ------------- -----------
Cash flows from investing activities:
Net cash and cash equivalents (outflow) from acquisition (2,894) (280,921) -
Debt issuance costs - (9,921) -
Purchases of property, plant and equipment (21,736) (14,841) (15,153)
Proceeds from sale of property, plant and equipment 28 314 304
------------ ------------- -----------
Net cash (used in) investing activities (24,602) (305,369) (14,849)
------------ ------------- -----------
Cash flows from financing activities:
Outstanding checks in excess of deposits 9,122 - -
Proceeds from short-term borrowings - 21,000 25,000
Repayments of short-term borrowings - (25,000) (21,000)
Proceeds from long-term debt 294,950 343,500 50,000
Repayments of long-term debt (511,550) (74,847) (5,625)
Proceeds from issuance of common stock 97,793 - -
Payment to prior sole shareholder - - (50,000)
Miscellaneous receipts from prior shareholder - - 500
Cash dividends paid (2,328) (2,040) (1,528)
------------ ------------- -----------
Net cash (used in) provided by financing activities (112,013) 262,613 (2,653)
------------ ------------- -----------
Net (decrease) increase in cash and cash equivalents (1,944) (721) 2,665
Cash and cash equivalents at beginning of period 1,944 2,665 -
------------ ------------- -----------
Cash and cash equivalents at end of period $ - $ 1,944 $ 2,665
============ ============= ===========
Supplemental disclosures:
Interest paid $ 27,046 $ 3,571 $ 3,532
Income taxes paid (refund received) (1,407) 1,558 9,955
</TABLE>
See notes to consolidated financial statements.
<PAGE>
COMMONWEALTH INDUSTRIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. Basis of Presentation and Summary of Significant Accounting Policies
Commonwealth Industries, Inc. (the "Company") operates principally in the United
States in one business segment. The Company manufactures aluminum sheet and
flexible electrical conduit and cable products made principally from recycled
aluminum scrap and primary aluminum.
The Company's prior sole shareholder completed on March 17, 1995, an initial
public offering of 8,750,000 shares of common stock at an initial offering price
of $14.00 per share and sold its remaining 1,250,000 shares later in 1995 on the
open market. The Company received no proceeds from these transactions.
Principles of Consolidation
The consolidated financial statements include the accounts of the Company and
its wholly-owned subsidiaries. All significant intercompany transactions have
been eliminated. Certain prior year amounts have been reclassified to conform
with current classifications.
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.
Actual results could differ from those estimates.
Cash and Cash Equivalents
Cash and cash equivalents include demand deposits with banks and highly liquid
investments with original maturities of three months or less. The carrying
amount of cash and cash equivalents approximates their fair value.
Concentrations of Credit Risk
Futures contracts, options, cash investments and accounts receivable potentially
subject the Company to concentrations of credit risk. The Company places its
cash investments with high credit quality institutions. At times, such cash
investments may be in excess of the Federal Deposit Insurance Corporation
insurance limit. Credit risk with respect to accounts receivable exists related
to concentrations of sales to aluminum distributors, who in turn resell the
Company's aluminum products to end-use markets, including the consumer durables,
building and construction and transportation markets. Concentrations of credit
risk with respect to accounts receivable from the sale of electrical products
are limited due to the large customer base, and their dispersion across many
different geographical areas. During 1996 and 1995, sales to one major customer
amounted to 11.0% and 12.5%, respectively, of the Company's net sales. The
Company performs ongoing credit evaluations of its customers' financial
condition but does not require collateral to support customer receivables.
Inventories
Inventories are stated at the lower of cost or market. The methods of accounting
for inventories are described in Note 4.
Long-Lived Assets
Property, plant and equipment are carried at cost and are being depreciated on a
straight-line basis over the estimated useful lives of the assets which
generally range from 15 to 33 years for buildings and improvements and from 5 to
20 years for machinery and equipment. Repair and maintenance costs are charged
against income while renewals and betterments are capitalized. Retirements,
sales and disposals of assets are recorded by removing the cost and accumulated
depreciation from the accounts with any resulting gain or loss reflected in
income.
Goodwill represents the excess of cost over the fair value of net assets
acquired and is amortized on a straight-line basis over forty years. Accumulated
amortization was $5.7 million and $1.2 million at December 31, 1997 and 1996,
respectively.
In the event that facts and circumstances indicate that the carrying amount of
an asset or group of assets may be impaired, an evaluation of recoverability
would be performed. If an evaluation is required, the estimated future
undiscounted cash flows associated with the asset would be compared to the
assets' carrying amount to determine if a write-down to market value or
discounted cash flow value is required.
Financial Instruments
The Company enters into futures contracts and options to manage price exposure
from committed and certain anticipated sales. Gains, losses and premiums on
these instruments which effectively hedge exposures are deferred and included in
income as a component of the underlying sales transaction.
The Company also uses futures contracts to manage risks associated with its
natural gas requirements and interest rate swaps to manage interest rate risk.
Income Taxes
The Company accounts for income taxes using the liability method, whereby
deferred income taxes reflect the tax effect of temporary differences between
the carrying amount of assets and liabilities for financial reporting purposes
and the amounts used for income tax purposes. In valuing deferred tax assets,
the Company uses judgment in determining if it is more likely than not that some
portion or all of a deferred tax asset will not be realized and the amount of
the required valuation allowance.
Revenue Recognition
The Company recognizes revenue upon passage of title to the customer, which in
most cases coincides with shipment.
Computation of Net Income Per Common Share
Basic net income per common share has been computed by dividing net income by
the weighted average number of common shares outstanding during the period.
Diluted net income per share has been computed by dividing net income by the
weighted average number of common and common equivalent shares (stock options)
outstanding during the period.
Prior-period net income per share data has been restated to reflect the adoption
of Statement of Financial Accounting Standards No. 128, "Earnings Per Share".
Stock-Based Compensation
Compensation cost is measured under the intrinsic value based method. Pro forma
disclosures of net income and net income per share are presented, as if the fair
value based method had been applied.
Self Insurance
The Company is substantially self-insured for losses related to workers'
compensation and health claims. Losses are accrued based upon the Company's
estimates of the aggregate liability for claims incurred based on Company
experience and certain actuarial assumptions.
Environmental Compliance and Remediation
Environmental expenditures relating to current operations are expensed or
capitalized as appropriate. Expenditures relating to existing conditions caused
by past operations, which do not contribute to current or future revenues, are
expensed. Costs to prepare environmental site evaluations and feasibility
studies are accrued when the Company commits to perform them. Liabilities for
remediation costs and post-remediation monitoring are recorded when they are
probable and reasonably estimable, generally the earlier of completion of
feasibility studies or the Company's commitment to a plan of action. The
assessment of this liability is calculated based on existing technology,
considers funds available in the settlement trust discussed in Note 12, does not
reflect any offset for possible recoveries from insurance companies and is not
discounted.
2. Acquisitions
On September 20, 1996, the Company acquired CasTech Aluminum Group Inc.
("CasTech") for a purchase price of $285 million. The excess of the purchase
price over the acquired net assets of $179 million was recorded as goodwill and
is being amortized over 40 years. The acquisition was recorded under the
purchase method of accounting and accordingly, the results of operations of
CasTech prior to the date of acquisition have not been included in the
accompanying consolidated financial statements.
Pending Acquistion
On December 19, 1997, the Company and Noranda Aluminum, Inc. announced they had
executed a letter of intent pursuant to which the Company will explore the
purchase of the Noranda aluminum rolling mill in Scottsboro, Alabama. The
Scottsboro aluminum rolling mill has an annual capacity of approximately 300
million pounds. The letter of intent is preliminary and the consummation of any
transaction is subject to due diligence investigation, negotiation of terms,
execution of definitive documentation, and board approvals.
3. Accounts Receivable Securitization
On September 26, 1997, the Company sold all of its trade accounts receivables to
a 100% owned subsidiary, Commonwealth Financing Corp. ("CFC"). Simultaneously,
CFC entered into a three-year accounts receivable securitization facility with a
financial institution and its affiliate whereby CFC can sell, on a revolving
basis, an undivided interest in certain of its receivables and receive up to
$150.0 million from an unrelated third party purchaser at a cost of funds linked
to commercial paper rates plus a charge for administrative and credit support
services. At December 31, 1997, the Company had received $150.0 million under
the agreement and had $39.7 million of net residual interest in the securitized
receivables which is included in other current assets in the Company's
consolidated financial statements.
The Company maintains an allowance for uncollectible accounts based upon the
expected collectibility of all consolidated trade accounts receivable, including
receivables sold by CFC. The allowance was $2.3 million at December 31, 1997 and
is netted against the net residual interest in the securitized receivables which
is included in other current assets in the Company's consolidated financial
statements. At December 31, 1996 the allowance was $2.2 million and is netted
against accounts receivable in the Company's consolidated financial statements.
4. Inventories
The Company uses the first-in, first-out (FIFO) and the last-in, first-out
(LIFO) methods for valuing its inventories. Inventories at December 31 consist
of the following (in thousands):
1997 1996
--------- ---------
Raw materials $ 30,395 $ 32,124
Work in process 76,286 79,539
Finished goods 53,395 46,959
Expendable parts and supplies 14,884 15,338
--------- ---------
174,960 173,960
LIFO reserve (3,327) (49)
--------- ---------
$171,633 $173,911
========= =========
Inventories of approximately $35.4 million, included in the above totals at
December 31, 1997, are accounted for under the LIFO method of accounting.
During 1997, LIFO inventory quantities were reduced, resulting in a partial
liquidation of the LIFO bases, the effect of which increased net income by
approximately $0.7 million.
5. Property, Plant and Equipment
Property, plant and equipment and the related accumulated depreciation at
December 31 consist of the following (in thousands):
1997 1996
--------- ---------
Land and improvements $ 20,686 $ 17,300
Buildings and improvements 62,764 63,125
Machinery and equipment 408,517 398,789
Construction in progress 19,770 16,219
--------- ---------
511,737 495,433
Less accumulated depreciation 245,445 221,338
--------- ---------
Net property, plant and equipment $266,292 $274,095
========= =========
Depreciation expense was $28.2 million, $20.0 million and $17.9 million for the
years ended 1997, 1996 and 1995, respectively.
6. Financial Instruments
Market and credit risk is managed by the Company through an active risk
management program. This program focuses on inventory, purchase commitments and
committed and anticipated sales. The Company utilizes futures contracts and
options to protect against exposures to price risk in the aluminum market. The
Company is exposed to losses in the event of non-performance by the
counterparties to these agreements; however, the Company does not anticipate
non-performance by the counterparties. Prior to conducting business with a
potential customer, credit checks are performed on the customer to determine
creditworthiness and assess credit risk. In addition, an indirect credit
exposure review is performed on all customers. Trading partners (brokers) are
evaluated for creditworthiness and risk assessment prior to initiating trading
activities with the brokers, however, the Company does not require collateral to
support broker transactions. All brokers trading on the London Metal Exchange
with U.S. clients are regulated by the Commodities Trading and Futures
Commission, which requires the brokers to be fully insured against unrealized
losses owed to clients. At December 31, 1997, credit lines totaling $52 million
were available at various brokerages used by the Company.
Gains, losses and premiums on futures contracts and options which effectively
hedge exposures are deferred and included in income as a component of the
underlying sales transaction. The Company had deferred realized losses of $1.5
million and deferred realized gains of $0.4 million as of December 31, 1997 and
1996, respectively on closed futures contracts and options. Deferred realized
losses are recorded as an increase in the carrying value of inventory and
deferred realized gains are recorded as a reduction in the carrying value of
inventory.
At December 31, 1997, the Company held purchase and sales commitments through
1998 totaling $56 million and $328 million, respectively. At December 31, 1997
and 1996, the Company's position with respect to aluminum futures contracts and
options was as follows (in millions):
Market Unrealized
Value Gain
December 31, 1997 $123.9 $ 0.3
December 31, 1996 57.9 2.2
Unrealized gains and losses are recorded in the consolidated balance sheet as
prepayments and other current assets and accrued liabilities. The unrealized
gain of $0.3 million and $2.2 million at December 31, 1997 and 1996,
respectively, consists of unrealized gains due from broker of $0.6 million and
$4.5 million, respectively, and unrealized losses due to broker of $0.3 million
and $2.3 million, respectively. Futures contracts and options are valued at the
closing price on the last business day of the year.
7. Long-term Debt
Long-term debt of the Company at December 31 consisted of the following (in
thousands):
1997 1996
-------- --------
Senior subordinated notes $125,000 $125,000
Term loan payable -- 98,750
Revolving credit facility 650 118,500
-------- --------
125,650 342,250
Less current maturities -- 6,250
-------- --------
$125,650 $336,000
======== ========
During 1996, in connection with the acquisition of CasTech, the Company
refinanced its outstanding borrowings and entered into a credit agreement with a
syndicate of banks led by National Westminster Bank. The credit agreement
included a $100 million term loan and a $225 million revolving credit facility.
In addition, the Company issued $125 million of 10.75% senior subordinated notes
due 2006. In connection with the refinancing, the Company incurred an
extraordinary loss on early extinguishment of debt of $1.5 million (or $1.4
million after tax).
During September 1997, the Company repaid the remaining amount of the term loan
under the credit agreement with the net proceeds of approximately $97.7 million
received from the September 1997 equity offering of the Company. In connection
with the repayment of the term loan, the Company incurred an extraordinary loss
on early extinguishment of debt of $1.5 million (or $1.2 million after tax). In
addition, in December 1997, the Company amended the credit agreement to reduce
the revolving credit facility from $225 million to $100 million.
The credit agreement is collateralized by a pledge of all of the outstanding
stock of the Company's subsidiaries and substantially all of the Company's
assets.
Up to $30 million of the revolving credit facility is available for standby and
commercial letters of credit. The revolving credit facility commitment
terminates on September 1, 2002.
Borrowings under the credit agreement bear interest at a variable base rate per
annum plus up to an additional 0.75% depending on the results of a quarterly
financial test as defined in the agreement. In addition, the Company must pay to
the lenders under the credit agreement, a quarterly commitment fee ranging from
0.175% to 0.25%. The blended interest rate on outstanding borrowings under the
revolving credit facility was 8.50% and 6.95% at December 31, 1997 and 1996,
respectively. The interest rate on the term loan was 6.88% at December 31, 1996.
The Company must pay a fee ranging from 0.325% to 0.750% per annum on the
carrying amount of each outstanding letter of credit. At December 31, 1997,
letters of credit totaling $0.7 million were outstanding under the revolving
credit facility.
The credit agreement includes covenants which, among others, relate to leverage,
interest coverage, fixed charges, capital expenditures and the payment of
dividends.
The Company uses interest rate swaps to effectively convert a portion of its
variable interest rates relating to the Company's revolving credit facility and
accounts receivable securitization facility to fixed interest rates. At December
31, 1997, the Company had swap agreements in place covering approximately $67
million of the Company's exposure to variable interest rates. The fixed interest
rates range from 5.9% to 7.0%. The counterparties to interest rate contracts are
major commercial banks and management believes that losses related to credit
risk is remote.
At December 31, 1997 and 1996, the interest rates on all amounts outstanding
under the credit agreement are scheduled to adjust in three months or less.
Accordingly, the carrying value of all amounts outstanding under the credit
agreement approximates fair value at December 31, 1997 and 1996. Based on
estimated market values at December 31, 1997 and 1996, the fair value of the
senior subordinated notes was approximately $131 million and $129 million,
respectively.
Future aggregate maturities of long-term debt at December 31, 1997 are as
follows (in thousands):
1998 $ --
1999 --
2000 --
2001 --
2002 650
Thereafter 125,000
--------
Total $125,650
========
8. Stockholders' Equity
On September 29, 1997, the Company completed a common stock offering of 5.75
million shares at a public offering price of $18 per share. The net proceeds
from the offering of approximately $97.7 million were used to repay the entire
amount outstanding under the Company's term loan agreement, totaling $95.0
million, as well as $2.7 million outstanding under the Company's revolving
credit facility.
9. Pension Plans
The Company has two defined benefit pension plans covering certain salaried and
non-salaried employees. The plan benefits are based primarily on years of
service and employees' compensation during the last five years of employment for
salaried employees and on stated amounts based on job grade and years of service
prior to retirement for non-salaried employees covered under a collective
bargaining agreement. The plans' assets consist primarily of equity securities,
guaranteed investment contracts and fixed income pooled accounts.
The funded status of the plans at December 31 is as follows (in thousands):
<TABLE>
<CAPTION>
1997 1996
--------- --------
<S> <C> <C>
Actuarial present value of benefit obligations:
Vested benefit obligation $(71,803) $(64,276)
Nonvested benefit obligation (4,682) (4,471)
--------- --------
Accumulated benefit obligation $(76,485) $(68,747)
--------- --------
Projected benefit obligation $(77,814) $(76,727)
Plan assets at fair value 70,530 64,083
--------- --------
Projected benefit obligation in excess of plan assets (7,284) (12,644)
Unrecognized net asset (769) (1,000)
Unrecognized prior service cost (3,934) 3,017
Unrecognized net loss 2,290 3,012
Adjustment required to recognize minimum liability (3,671) (2,995)
--------- --------
Accrued pension cost $ (13,368) $ (10,610)
========= ========
</TABLE>
The liabilities as of December 31, 1997 disclosed above reflect the change in
the defined benefit plan covering the salaried employees to a cash balance
formula effective January 1, 1998. In addition, reflected in the Company's
consolidated balance sheet is an additional minimum liability relative to its
underfunded plan in the amount of $3.7 million and $3.0 million at December 31,
1997 and 1996, respectively. A corresponding amount is recorded as an intangible
asset to the extent it does not exceed unrecognized prior service cost, while
the excess in 1997 was charged to stockholders' equity.
The projected benefit obligation was determined using a weighted average
discount rate of 7.25%, 7.75% and 7.00% for 1997, 1996 and 1995, respectively.
The weighted average rate of future compensation increases was 4.5% for 1997,
1996 and 1995. The expected rate of return on plan assets was 9.25% for 1997 and
1996 and 8.00% for 1995.
The components of net pension expense for the years ended December 31 are as
follows (in thousands):
<TABLE>
<CAPTION>
1997 1996 1995
------ ------ ------
<S> <C> <C> <C>
Benefit cost for service during the year $2,221 $2,378 $1,583
Interest cost on projected benefit obligation 5,719 5,514 4,787
Actual return on plan assets (9,691) (5,699) (6,584)
Net amortization and deferral 4,016 1,102 2,846
------ ------ ------
Net pension expense $2,265 $3,295 $2,632
====== ====== ======
</TABLE>
The Company's policy for these plans is to make contributions equal to or
greater than the requirements prescribed by the Employee Retirement Income
Security Act of 1974.
The Company also contributes to a union sponsored defined benefit multi-employer
pension plan for certain of its non-salaried employees. The Employee Retirement
Income Security Act of 1974, as amended by the Multi-Employers Pension Plan
Amendment Act of 1980, imposes certain liabilities upon employers who are
contributors to multi-employer plans in the event of the employers' withdrawal
from such a plan or upon a termination of such a plan. Management does not
intend to take any action that would subject the Company to any such
liabilities.
In addition to the defined benefit plans described above, the Company also
sponsors defined contribution plans covering substantially all employees. In two
of the plans, the Company matches 25% to 50% of a participant's voluntary
contributions (depending on the respective plant's annual earnings performance)
up to a maximum of 6% of a participant's compensation. In the remaining two
plans, contributions are at the discretion of the Board of Directors and cannot
exceed 15% of the participants' annual wages. The Company's contributions to the
plans were approximately $1.9 million, $1.3 million and $1.5 million for 1997,
1996 and 1995, respectively.
10. Postretirement Benefits Other Than Pensions
The Company provides postretirement health care and life insurance benefits to
certain employees. The Company accrues the cost of postretirement benefits
within the employees' active service periods. Effective January 1, 1994, the
Company limited the extent of its liability for future increases in medical
costs. When the average annual per retiree claim cost exceeds two times the 1993
per retiree claim cost, the employer contribution will be increased each year
only for general inflation, regardless of the actual increase in the cost of
providing medical benefits. Based on current medical trend assumptions, per
retiree medical claims will reach two times the 1993 level in the year 2000.
The financial status of the plan at December 31, 1997 and 1996 is as follows (in
thousands):
<TABLE>
<CAPTION>
1997 1996
------ -------
<S> <C> <C>
Actuarial present value of accumulated postretirement benefit obligation:
Retirees $26,775 $24,437
Fully eligible, active plan participants 5,095 3,051
Other active participants 37,160 33,756
------ ------
69,030 61,244
Unrecognized prior service cost 5,564 6,492
Unrecognized net gain 9,490 13,488
------ ------
Accrued postretirement benefits $84,084 $81,224
====== ======
</TABLE>
The components of net periodic postretirement benefit expense for the years
ended December 31 are as follows (in thousands):
<TABLE>
<CAPTION>
1997 1996 1995
----- ------ ------
<S> <C> <C> <C>
Service cost for benefits earned $1,934 $1,890 $1,708
Interest cost on accumulated postretirement benefit obligations 4,529 4,390 4,184
Net amortization and deferral (1,585) (1,451) (1,725)
------ ------ ------
Net periodic postretirement benefit expense $4,878 $4,829 $4,167
====== ====== ======
</TABLE>
The accumulated postretirement benefit obligation ("APBO") was determined using
a weighted average discount rate of 7.25%, 7.75% and 7.00% for 1997, 1996 and
1995, respectively. The assumed health care cost trend rate used in measuring
the APBO was 8.5% declining by 1.0% per year to an ultimate rate of 4.5% in
2001. If the health care cost trend rate assumptions were increased by 1%, the
APBO as of December 31, 1997 and the combined service and interest cost
components of postretirement benefit expense for the year then ended would be
increased by approximately $9.2 million and $1.0 million, respectively.
11. Income Taxes
The components of income tax expense (benefit) for the years ended December 31
are as follows (in thousands):
<TABLE>
<CAPTION>
1997 1996 1995
------ ------ ------
<S> <C> <C> <C>
Current:
Federal $ 606 $(6,079) $8,845
State and Local 1,816 786 441
----- ------ -----
2,422 (5,293) 9,286
Deferred:
Federal -- -- --
State and Local -- -- --
----- ----- -----
$2,422 $(5,293) $9,286
====== ====== =====
</TABLE>
Deferred tax assets and liabilities at December 31 are as follows (in
thousands):
<TABLE>
<CAPTION>
1997 1996
---- ----
Assets Liabilities Assets Liabilities
--------- ----------- --------- -----------
<S> <C> <C> <C> <C>
Inventory $ 1,429 $ -- -- $ 6,890
Property, plant and equipment -- 55,835 -- 57,208
Accrued and other liabilities 9,268 -- $ 12,308 --
Accrued pension costs 5,447 -- 3,046 --
Accrued postretirement costs 33,634 -- 32,489 --
Net operating loss carryforwards 37,341 -- 50,941 --
AMT credit carryforwards 7,494 -- 7,494 --
Other 803 -- 1,143
--------- -------- -------- --------
Totals $ 95,416 $55,835 $107,421 $64,098
--------- -------- -------- --------
Net deferred tax asset 39,581 -- $43,323 --
Valuation allowance (39,581) -- (43,323) --
--------- -------- -------- --------
Net deferred taxes $ -- $ -- $ -- $ --
========= ======== ======== ========
</TABLE>
The Company has determined that at December 31, 1997 and 1996, its ability to
realize future benefits of net deferred tax assets does not meet the "more
likely than not" criteria in SFAS No.109, "Accounting for Income Taxes".
At December 31, 1997, the Company had net operating loss carryforwards for
federal tax purposes of approximately $93 million, which expire in various
amounts through 2008 and approximately $7.5 million in alternative minimum tax
credit carryforwards which do not expire. As a result of the initial public
offering during 1995, the Company experienced an "ownership change" within the
meaning of Section 382 of the Internal Revenue Code. Consequently, the Company
is subject to an annual limitation on the amount of net operating loss
carryforwards that can be used to offset taxable income. The annual limitation
is $9.6 million plus certain gains included in taxable income which are
attributable to the Company prior the ownership change.
Reconciliation of the federal statutory rate and the effective income tax rate
is as follows:
<TABLE>
<CAPTION>
1997 1996 1995
------ ------ ------
<S> <C> <C> <C>
Federal statutory rate 35.0% 35.0% 35.0%
Dividends received deduction -- -- (0.5)
Non-taxable property distribution -- -- 24.2
Utilization of net operating loss carryforwards (24.8) (67.9) (38.6)
Adjustment of prior year accrual -- (34.8) --
State income taxes, net of federal income tax benefit 9.9 5.1 --
Alternative minimum tax 5.2 6.8 --
Other items (4.3) (0.1) 1.5
----- ----- ----
Effective income tax rate 21.0% (55.9)% 21.6%
===== ===== ====
</TABLE>
12. Contingencies
The Company's operations are subject to increasingly stringent environmental
laws and regulations governing air emissions, wastewater discharges, the
handling, disposal and remediation of hazardous substances and wastes and
employee health and safety. These laws can impose joint and several liability
for releases or threatened releases of hazardous substances upon statutorily
defined parties, including the Company, regardless of fault or the lawfulness of
the original activity or disposal. The Company believes it is currently in
material compliance with applicable environmental laws and regulations.
Future regulations, under the Clean Air Act and otherwise, are expected to
impose stricter emission requirements on the aluminum industry. While the
Company believes that current pollution control measures at most of the emission
sources at its facilities will meet these anticipated future requirements,
additional measures at some of the Company's facilities, including its
Lewisport, Kentucky ("Lewisport") rolling mill may be required.
The Company has been named as a potentially responsible party at four federal
superfund sites which were acquired in the CasTech acquisition and is conducting
remedial investigations and closure activities at two of the sites for past
waste disposal activity associated with closed recycling facilities. A trust
fund exists to fund the activity at one of the sites undergoing remediation and
was established through contributions from two other parties in exchange for
indemnification from further liability. The Company is reimbursed from the trust
fund as approved remediation expenditures are incurred at the site. The balance
remaining in the trust fund at December 31, 1997 was $2.6 million. In
determining the adequacy of the Company's aggregate environmental contingency
accrual, the assets of the trust fund were taken into account. At the two other
federal superfund sites, the Company is a minor contributor and expects to
resolve its liability for a nominal amount. The Company is under orders by
agencies in three states for environmental remediation at sites, two of which
are currently operating and two of which have been closed. Based upon currently
available information, the Company estimates the range of possible remaining
losses with respect to the above matters is between $9 million and $13 million.
The Company acquired its Lewisport rolling mill and an aluminum smelter at
Goldendale, Washington ("Goldendale"), from Lockheed Martin in 1985. In
connection with the transaction, Lockheed Martin indemnified the Company against
expenses relating to environmental matters arising during the period of Lockheed
Martin's ownership of those facilities.
Environmental sampling at Lewisport has disclosed the presence of contaminants,
including polychlorinated biphenyls (PCBs), in a closed Company landfill. The
Company has not yet determined the extent of the contamination or the nature and
extent of remedial measures that may be required. Accordingly, the Company
cannot at present estimate the cost of any remediation that may be necessary.
Management believes the contamination is covered by the Lockheed Martin
indemnification, which Lockheed Martin disputes.
The aluminum smelter at Goldendale was operated by Lockheed Martin until 1985
and by the Company from 1985 to 1987 when it was sold to Columbia Aluminum
Corporation ("Columbia"). Past aluminum smelting activities at Goldendale have
resulted in environmental contamination and regulatory involvement. A 1993
Settlement Agreement among the Company, Lockheed Martin and Columbia allocates
responsibility for future remediation at 11 sites at the Goldendale smelter. If
remediation is required, estimates by outside consultants of the probable
aggregate cost to the Company for these sites range from $1.3 million to $7.2
million. The apportionment of responsibility for other sites at Goldendale is
left to alternative dispute resolution procedures if and when these locations
become the subject of remedial requirements.
The Company has been named as a potentially responsible party at three
third-party disposal sites relating to Lockheed Martin operations for which
Lockheed Martin has assumed responsibility.
The Company's aggregate loss contingency accrual for environmental matters was
$10.7 million and $15.2 million at December 31, 1997 and 1996, respectively. Of
the total reserve, $2.5 million and $3.6 million is included in "accrued
liabilities" in the Company's consolidated balance sheets at December 31, 1997
and 1996, respectively, and $8.2 million and $11.6 million is included in "other
long-term liabilities" at December 31, 1997 and 1996, respectively.
While the Company believes the overall accrual is adequate to cover all
environmental loss contingencies the Company has determined to be probable and
reasonably estimable, it is not possible to predict the amount or timing of cost
for future environmental matters which may subsequently be determined. Although
the outcome of any such matters, to the extent they exceed any applicable
accrual, could have a material adverse effect on the Company's consolidated
results of operations or cash flows for the applicable period, the Company
believes that such outcome will not have a material adverse effect on the
Company's consolidated financial condition, results of operations or cash flows.
The Company has incurred and will continue to incur capital and operating
expenditures for matters relating to environmental control and monitoring.
Capital expenditures of the Company for environmental control and monitoring for
both 1997 and 1996 were $2.3 million. All other environmental expenditures of
the Company, including remediation expenditures, for 1997, 1996 and 1995 were
$3.1 million, $1.5 million and $1.9 million, respectively.
The Company is also a party to various non-environmental legal proceedings and
administrative actions, all arising from the ordinary course of business.
Although it is impossible to predict the outcome of any legal proceeding, the
Company believes any liability that may finally be determined with respect to
such legal proceedings should not have a material effect on the Company's
consolidated financial position, results of operations or cash flows, although
resolution in any year or quarter could be material to the consolidated results
of operations for that period.
13. Stock Incentives
The Company has stock incentive plans covering certain officers, key employees
and directors. The plans provide for the grant of options to purchase common
stock, the award of shares of restricted common stock and in the case of
non-employee directors, the award of shares of common stock . The total number
of shares available under the plans is 1,200,000.
Activity under the plans is summarized below:
<TABLE>
<CAPTION>
Options Restricted Stock
----------------------------- ----------------
Weighted
Average
Shares Exercise Price Shares
---------- ---------------- -------------
<S> <C> <C> <C>
Outstanding December 31, 1994 -- -- --
Granted 72,500 $14.00 202,500
Exercised -- -- --
Forfeited (3,000) $14.00 (12,500)
--------- -------- --------
Outstanding December 31, 1995 69,500 $14.00 190,000
Granted 130,500 $16.71 25,000
Exercised -- -- --
Forfeited (4,000) $14.00 (17,500)
--------- -------- --------
Outstanding December 31, 1996 196,000 $15.80 197,500
Granted 203,500 $15.55 2,500
Exercised (9,000) $15.60 --
Forfeited (45,500) $15.60 (22,500)
Stock no longer restricted -- -- (7,500)
--------- -------- --------
Outstanding December 31, 1997 345,000 $15.68 170,000
========= ======== ========
(Weighted average contractual
life of 8.4 years)
Exercisable Options:
December 31, 1995 -- --
December 31, 1996 5,500 $14.00
December 31, 1997 11,000 $14.75
</TABLE>
The options are issued at the fair value of the underlying stock on the date of
grant and become exercisable three years from the grant date for employees and
one year from the grant date for non-employee directors. The options expire ten
years after the date of grant. The restricted stock, principally issued in
connection with the initial public offering, vests five years from the date of
award. The weighted-average fair value of options granted in 1997, 1996 and 1995
was $6.11, $4.24 and $3.44 per share, respectively. Fair value estimates were
determined using the Black-Scholes option pricing model with the following
weighted average asumptions for 1997, 1996 and 1995:
<TABLE>
<CAPTION>
1997 1996 1995
------ ------ ------
<S> <C> <C> <C>
Risk-free interest rate 6.22% 6.50% 6.50%
Dividend yield 1.29% 1.19% 1.39%
Volatility factor 39% 15% 15%
Expected term of options (in years) 5 5 5
</TABLE>
As permitted by Statement of Financial Accounting Standards No. 123, "Accounting
for Stock-Based Compensation" ("SFAS No. 123"), the Company follows the
provisions of Accounting Principles Board Opinion 25, "Accounting for Stock
Issued to Employees," and related Interpretations in accounting for its stock
option plans, and accordingly, no compensation expense has been recognized for
options and stock issued under the plans. Had compensation expense been
determined based on the fair value of the stock options at the grant date
consistent with the provisions of SFAS No. 123, the Company's net income and
basic and diluted net income per share would have been reduced to the pro forma
amounts which follow:
<TABLE>
<CAPTION>
1997 1996 1995
------ ------- ------
<S> <C> <C> <C>
Net income
As reported $7,941 $13,401 $33,787
Pro forma $7,592 $13,276 $33,756
Basic net income per share
As reported $0.68 $1.32 $3.32
Pro forma $0.65 $1.30 $3.31
Diluted net income per share
As reported $0.68 $1.32 $3.31
Pro forma $0.65 $1.30 $3.31
</TABLE>
14. Net Income Per Share Computations
The following is a reconciliation of the numerator and denominator of the basic
and diluted per share computations:
<TABLE>
<CAPTION>
1997 1996 1995
------ ------ ------
<S> <C> <C> <C>
Income (numerator) amounts used for basic and diluted per share computations:
Income before extraordinary loss $9,122 $14,756 $33,787
Extraordinary loss, net of income tax benefit (1,181) (1,355) --
------ ------ ------
Net income $7,941 $13,401 $33,787
====== ====== ======
Shares (denominator) used for basic per share computations:
Weighted average shares of common stock outstanding 11,687 10,197 10,191
====== ====== ======
Shares (denominator) used for diluted per share computations:
Weighted average shares of common stock outstanding 11,687 10,197 10,191
Plus: dilutive effect of stock options 36 6 8
------ ------ ------
Adjusted weighted average shares 11,723 10,203 10,199
====== ====== ======
Net income per share data:
Basic
Income before extraordinary loss $0.78 $1.45 $3.32
Extraordinary loss (0.10) (0.13) --
----- ----- -----
Net income $0.68 $1.32 $3.32
===== ===== =====
Diluted
Income before extraordinary loss $0.78 $1.45 $3.31
Extraordinary loss (0.10) (0.13) --
----- ----- -----
Net income $0.68 $1.32 $3.31
===== ===== =====
</TABLE>
15. Lease Commitments
Certain property, plant and equipment are leased under noncancelable leases
which provide for minimum rental payments as follows (in thousands):
1998 $2,205
1999 2,277
2000 2,173
2001 1,710
2002 1,510
2003-2006 2,464
Rental expense under cancelable and noncancelable leases for 1997, 1996 and 1995
was $3.0 million, $1.2 million and $0.8 million, respectively.
16. Selected Quarterly Financial Data (unaudited) All amounts are in thousands
except net income per share.
<TABLE>
<CAPTION>
Quarter
-----------------------------------------------
1st 2nd 3rd 4th
-------- -------- -------- --------
1997
- ----
<S> <C> <C> <C> <C>
Net sales $272,191 $287,240 $271,142 $260,204
Gross profit 24,046 24,247 21,155 18,595
Income before extraordinary loss 2,168 4,163 1,590 1,201
Net income 2,168 4,163 409 1,201
Net income per share data:
Basic
Income before extraordinary loss 0.21 0.41 0.15 0.08
Net income 0.21 0.41 0.04 0.08
Diluted
Income before extraordinary loss 0.21 0.41 0.15 0.08
Net income 0.21 0.41 0.04 0.08
1996
- ----
Net sales $167,544 $159,672 $170,052 $241,950
Gross profit 9,811 8,870 10,570 20,061
Income before extraordinary loss 2,393 2,102 4,634 5,627
Net income 2,393 2,102 3,279 5,627
Net income per share data:
Basic
Income before extraordinary loss 0.23 0.21 0.45 0.55
Net income 0.23 0.21 0.32 0.55
Diluted
Income before extraordinary loss 0.23 0.21 0.45 0.55
Net income 0.23 0.21 0.32 0.55
</TABLE>
Fourth quarter 1996 net income includes a $1.1 million increase in pre-tax
income as a result of adjustments to certain compensation-related expenses. In
addition, the Company recognized an income tax benefit of $5.0 million as a
result of revisions to prior-year tax estimates and adjustments to the estimated
utilization of net operating loss carryforwards.
<PAGE>
Commonwealth Industries, Inc.
Report of Independent Accountants
Board of Directors and Stockholders
Commonwealth Industries, Inc.
We have audited the accompanying consolidated balance sheet of
Commonwealth Industries, Inc., and Subsidiaries as of December 31, 1997 and 1996
and the related consolidated statements of income, stockholders' equity and cash
flows for each of the three years in the period ended December 31, 1997. 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 generally accepted
accounting standards. Those standards require that we plan and perform the audit
to obtain reasonable assurance about whether the financial statements are free
of material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant estimates
made by management, as well as evaluating the overall financial statement
presentations. 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 consolidated financial position of
Commonwealth Industries, Inc., and Subsidiaries at December 31, 1997 and 1996,
and the consolidated results of their operations and their cash flows for each
of the three years in the period ended December 31, 1997 in conformity with
generally accepted accounting principles.
COOPERS & LYBRAND L.L.P.
Louisville, Kentucky
February 6, 1998
Exhibit 21
----------
Direct and Indirect Subsidiaries of Commonwealth Industries, Inc.
Name State of Incorporation
------- ----------------------
C I Holdings, Inc. (1) Delaware
Commonwealth Financing Corp. (1) Delaware
Commonwealth Aluminum Corporation (2) Delaware
Commonwealth Aluminum Sales Corporation (3) Delaware
Commonal Corporation (3) Barbados
Alflex Corporation (2) Delaware
Commonwealth Aluminum Concast, Inc. (4) Ohio
-------------------------------------------------------------------
(1) Subsidiary of Commonwealth Industries, Inc.
(2) Subsidiary of C I Holdings, Inc.
(3) Subsidiary of Commonwealth Aluminum Corporation.
(4) Subsidiary of Alflex Corporation.
Exhibit 23
----------
Consent of Independent Accountants
We consent to the incorporation by reference in the registration
statements of Commonwealth Industries, Inc. and Subsidiaries on Forms S-8 (File
No's. 333-19383, 33-91364 and 33-90292) of our report dated February 6, 1998, on
our audits of the consolidated financial statements and financial statement
schedule of Commonwealth Industries, Inc. and Subsidiaries as of December 31,
1997 and 1996, and for the years ended Decemebr 31, 1997, 1996 and 1995, which
report is included in this Annual Report on Form 10-K.
COOPERS & LYBRAND L.L.P.
Louisville, Kentucky
March 21, 1998
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> year
<FISCAL-YEAR-END> Dec-31-1997
<PERIOD-END> Dec-31-1997
<CASH> 0
<SECURITIES> 0
<RECEIVABLES> 355
<ALLOWANCES> 0
<INVENTORY> 171,633
<CURRENT-ASSETS> 217,095
<PP&E> 511,737
<DEPRECIATION> 245,445
<TOTAL-ASSETS> 667,421
<CURRENT-LIABILITIES> 104,171
<BONDS> 125,650
0
0
<COMMON> 159
<OTHER-SE> 330,314
<TOTAL-LIABILITY-AND-EQUITY> 667,421
<SALES> 1,090,777
<TOTAL-REVENUES> 1,090,777
<CGS> 1,002,734
<TOTAL-COSTS> 1,002,734
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 242
<INTEREST-EXPENSE> 30,536
<INCOME-PRETAX> 11,544
<INCOME-TAX> 2,422
<INCOME-CONTINUING> 9,122
<DISCONTINUED> 0
<EXTRAORDINARY> (1,181)
<CHANGES> 0
<NET-INCOME> 7,941
<EPS-PRIMARY> 0.68
<EPS-DILUTED> 0.68
</TABLE>
