<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934 FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 30, 1996 OR
[_] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 FOR THE TRANSITION PERIOD FROM ____________ TO
____________.
COMMISSION FILE NO.: 0-26640
-------
SCP POOL CORPORATION
- -------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
DELAWARE 36-3943363
- ------------------------------- ----------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
109 Northpark Boulevard, Covington, Louisiana 70433-5001
- --------------------------------------------- ----------
(Address of principal executive offices) (Zip Code)
504-892-5521
- -------------------------------------------------------------------------------
(Registrant's telephone number, including area code)
128 Northpark Boulevard, Covington, Louisiana 70433-5070
- --------------------------------------------------------------------------
(former name, former address and former fiscal year, if changed since last
report)
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
--- ---
At November 11, 1996, there were 4,222,809 outstanding shares of the
Registrant's Common Stock, $.001 par value per share.
<PAGE>
SCP POOL CORPORATION
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Part I. Financial Information Page
<S> <C>
Item 1. Financial Statements
Consolidated Balance Sheets -- September 30, 1996
(Unaudited) and December 31, 1995................................. 1
Consolidated Statements of Income -- Three Months Ended
September 30, 1996 and 1995 (Unaudited) and Nine
Months Ended September 30, 1996 and 1995 (Unaudited).............. 2
Consolidated Statements of Cash Flows -- Nine Months
Ended September 30, 1996 and 1995 (Unaudited)..................... 3
Notes to Consolidated Financial Statements (Unaudited)--
September 30, 1996................................................ 4
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations......................................... 8
Part II. Other Information
Items 1. - 6.................................................................. 17
</TABLE>
<PAGE>
SCP POOL CORPORATION
CONSOLIDATED BALANCE SHEETS
(In thousands, except share data)
<TABLE>
<CAPTION>
SEPTEMBER 30, DECEMBER 31,
1996 1995
------------- ------------
(Unaudited) (Note)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 6,099 $ 2,043
Receivables 17,502 12,090
Inventory, primarily goods purchased for resale 53,143 25,230
Prepaid expenses 945 363
Deferred income taxes 659 145
-----------------------
Total current assets 78,348 39,871
Property and equipment, net 5,846 3,470
Goodwill, net 32,739 29,725
Other assets, net 2,948 2,331
-----------------------
Total assets $119,881 $75,397
=======================
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 8,361 $12,726
Accrued and other current liabilities 11,207 3,075
Current portion of long-term debt 34,039 2,883
-----------------------
Total current liabilities 53,607 18,684
Deferred income taxes 1,190 843
Long-term debt, less current portion 24,947 23,593
Stockholders' equity:
Preferred stock, $.01 par value; 100,000 shares authorized - -
Common stock, $.001 par value; 10,000,000 shares authorized;
4,222,809 shares issued and outstanding in 1996 and 1995 4 4
Additional paid-in capital 29,587 29,587
Retained earnings 10,546 2,686
-----------------------
Total stockholders' equity 40,137 32,277
-----------------------
Total liabilities and stockholders' equity $119,881 $75,397
=======================
</TABLE>
Note: The balance sheet at December 31, 1995 has been derived from the audited
financial statements at that date but does not include all of the
information and footnotes required by generally accepted accounting
principles for complete financial statements.
See accompanying notes.
1
<PAGE>
SCP POOL CORPORATION
CONSOLIDATED STATEMENTS OF INCOME
(In thousands, except per share data)
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
1996 1995 1996 1995
------- ------- -------- --------
(Unaudited) (Unaudited)
<S> <C> <C> <C> <C>
Net sales $62,344 $47,229 $189,356 $139,742
Cost of sales 48,813 36,830 146,510 108,590
------------------------------------------
Gross profit 13,531 10,399 42,846 31,152
Warehouse expense 2,506 1,785 7,114 4,997
Selling and administrative expenses 6,658 5,194 20,394 14,275
Goodwill amortization 191 184 576 544
------------------------------------------
Operating income 4,176 3,236 14,762 11,336
Other income (expense):
Interest expense (780) (1,566) (2,052) (4,159)
Amortization expense (133) (171) (398) (479)
Management fees paid to majority stockholder - (63) - (188)
Miscellaneous income 295 91 577 173
------------------------------------------
(618) (1,709) (1,873) (4,653)
------------------------------------------
Income before income taxes 3,558 1,527 12,889 6,683
Provision for income taxes 1,390 628 5,029 2,603
------------------------------------------
Net income $ 2,168 $ 899 $ 7,860 $ 4,080
==========================================
Net income per share of common stock:
Primary $ .51 $ .64 $ 1.86 $ 2.91
==========================================
Fully diluted $ .50 $ .61 $ 1.83 $ 2.75
==========================================
Average shares outstanding:
Primary 4,223 1,401 4,223 1,401
==========================================
Fully diluted 4,308 1,486 4,308 1,486
==========================================
</TABLE>
See accompanying notes.
2
<PAGE>
SCP POOL CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30,
1996 1995
-------- -------
<S> <C> <C>
(Unaudited)
OPERATING ACTIVITIES
Net income $ 7,860 $ 4,080
------------------
Adjustments to reconcile net income to net cash used in
operating activities (3,226) (3,406)
Net cash provided by operating activities 4,634 674
INVESTING ACTIVITIES
Acquisition of businesses - (6,013)
Purchase of property and equipment (554) (534)
Proceeds from sale of property and equipment 156 4
------------------
Net cash used in investing activities (398) (6,543)
FINANCING ACTIVITIES
Proceeds on long-term debt 15,577 7,200
Net borrowings (repayments) on revolving loan (13,000) 5,130
Payments on long-term debt (2,757) (750)
Issuance of common stock - 300
------------------
Net cash provided by (used in) financing activities (180) 11,880
------------------
Change in cash and cash equivalents 4,056 6,011
Cash and cash equivalents at beginning of period 2,043 844
------------------
Cash and cash equivalents at end of period $ 6,099 $ 6,855
==================
SUPPLEMENTAL CASH FLOW INFORMATION
Cash paid during the period for:
Interest $ 1,139 $ 3,075
==================
Income taxes $ 10 $ 534
==================
SUPPLEMENTAL DISCLOSURE OF NONCASH INVESTING AND
FINANCING ACTIVITIES
Long-term debt issued to acquire businesses $ 32,691 $ 2,650
==================
</TABLE>
See accompanying notes.
3
<PAGE>
SCP POOL CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)--
SEPTEMBER 30, 1996
1. UNAUDITED INTERIM FINANCIAL STATEMENTS
The accompanying unaudited consolidated financial statements have been prepared
in accordance with generally accepted accounting principles for interim
financial information and with the instructions to Form 10-Q and Article 10 of
Regulation S-X. Accordingly, they do not include all of the information and
footnotes required by generally accepted accounting principles for complete
financial statements. Certain information and footnote disclosures normally
included in financial statements prepared in accordance with generally accepted
accounting principles have been condensed or omitted. In the opinion of
management, the accompanying unaudited interim financial statements include all
adjustments, consisting of only normal recurring adjustments, necessary for a
fair presentation of the results of the interim periods.
The Company's business is highly seasonal. In general, sales and net income are
highest during the second and third quarters, which represent the peak months of
swimming pool use and installation. Operating results for the three-month or
nine-month periods ended September 30, 1996 are not necessarily indicative of
the results that may be expected for the year ending December 31, 1996. For
further information, refer to the consolidated financial statements for the year
ended December 31, 1995 and footnotes thereto included in the annual report on
Form 10-K filed by the Company with the Securities and Exchange Commission.
2. DESCRIPTION OF BUSINESS
As of September 30, 1996, SCP Pool Corporation and its wholly owned subsidiaries
(collectively referred to as the Company) maintain 73 service centers in 22
states located throughout the United States, except in the Northeast, from which
they sell swimming pool equipment and supplies to pool builders, retail stores,
and service firms. The Company through its wholly owned subsidiary, Alliance
Packaging, Inc. (Alliance) also owns and operates a manufacturing and
repackaging facility in Dallas, Texas, which produces a substantial portion of
the Company's chemical products and also sells to other wholesale distributors
and large retailers. On September 26, 1996, Alliance agreed to sell certain of
its assets, including inventory and fixed assets to Bio-Lab, Inc. (Bio-Lab).
(See Note 4.)
On September 26, 1996, the Company acquired from Bio-Lab, Inc. certain assets,
primarily inventory and property and equipment, of The B-L Network, Inc. (BLN),
a wholesaler of swimming pool supplies with 39 service centers in 12 states. The
total purchase price of approximately $32.7 million was financed through
promissory notes payable to Bio-Lab.
4
<PAGE>
SCP POOL CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)--
(CONTINUED)
2. DESCRIPTION OF BUSINESS (CONTINUED)
The Company has accrued certain exit costs of approximately $1 million related
to the planned closing of certain BLN service centers and a reduction in the BLN
work force. As of the consummation date of the BLN Acquisition, the Company's
management had begun to assess the need for and formulate a plan to accomplish
these activities. At September 30, 1996, the Company had closed 10 service
centers. As management finalizes its plans related to these and other service
centers, adjustments to this amount may be necessary. Any such adjustments will
be recorded as adjustments to the purchase price of the BLN Acquisition.
The acquisition has been accounted for using the purchase method of accounting
and the results of operations have been included in the accompanying
consolidated financial statements since the date of acquisition. The cost of the
acquisition has been allocated on the basis of the estimated fair value of the
assets acquired. Goodwill of approximately $4 million was recorded in connection
with the BLN Acquisition. Such goodwill will be amortized over 40 years.
Unaudited pro forma results of operations of the Company for the nine months
ended September 30, 1996 and 1995, respectively, giving effect to the BLN
Acquisition as if it had occurred as of January 1, 1995, are as follows (in
thousands, except per share data):
<TABLE>
<CAPTION>
1996 1995
----------------------
<S> <C> <C>
Net sales $315,578 $254,072
Gross profit $ 62,915 $ 51,327
Operating income $ 15,969 $ 13,211
Net income $ 7,528 $ 4,256
Net income per share:
Primary $ 1.78 $ 3.04
Fully diluted $ 1.75 $ 2.86
</TABLE>
The unaudited pro forma consolidated results of operations for the nine months
ended September 30, 1996 and 1995 set for above include pro forma adjustments
for the incremental increase or decrease in amortization of goodwill and other
intangible assets, interest expense, and income taxes associated with the
acquisition. It does not reflect the anticipated savings in purchasing costs at
BLN during the periods presented, nor does it reflect cost savings from the
closure of certain BLN service centers, the amount of which has not been
determined. Furthermore, the unaudited pro forma consolidated results of
operations for the nine months ended September 30, 1995 set for above does not
give
5
<PAGE>
SCP POOL CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)--
(CONTINUED)
2. DESCRIPTION OF BUSINESS (CONTINUED)
effect to the Company's initial public offering, which occurred in October 1995
(see Note 4), nor does it give effect to other acquisitions which occurred
during 1995, as if the offering and each of the acquisitions had occurred at
January 1, 1995.
In September 1996, the Company amended and restated its existing credit
agreement (as so amended, the "Credit Facility") which additional term loans of
approximately $15.6 million for a total of $25 million and increased the
revolving line of credit from $30 million to $55 million. At September 30, 1996,
the Company had no borrowings under the line of credit. See "Liquidity and
Capital Resources" section of Management's Discussion and Analysis.
3. EARNINGS PER SHARE
Primary income per common share equals net income divided by the weighted
average number of common shares outstanding during the period. Fully diluted
income per common share equals net income plus the after tax interest incurred
on the Company's convertible notes, divided by common shares outstanding after
giving effect to shares assumed to be issued on conversion of those notes. For
both 1996 and 1995, the effect of stock options outstanding are immaterial.
The Company completed its initial public offering of its common stock in October
1995. A recapitalization occurred in connection with this public offering which
included the exchange of $7,200,000 of Junior Subordinated Notes for shares of
common stock.
The computation of net income, weighted average shares outstanding and net
income per share, assuming the Company's initial public offering and
recapitalization had taken place at the beginning of 1995, are as follows (in
thousands, except per share data):
6
<PAGE>
SCP POOL CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)--
(CONTINUED)
3. EARNINGS PER SHARE (CONTINUED)
<TABLE>
<CAPTION>
THREE MONTHS NINE MONTHS
ENDED ENDED
SEPTEMBER 30, SEPTEMBER 30,
1995 1995
-------------------------------
<S> <C> <C>
NET INCOME
Primary:
Historical net income $ 899 $4,080
Adjustments:
Interest expense resulting from recapitalization and the
application of net proceeds of the offering 677 1,931
Management fee paid to majority stockholder 63 188
Amortization of financing fees of indebtedness repaid 43 129
Income tax effect (305) (877)
-------------------------------
Adjusted net income 1,377 5,451
Fully diluted:
Adjustment for interest expense, net of tax, on Convertible
Notes 2 6
-------------------------------
Adjusted net income $1,379 $5,457
===============================
THREE MONTHS NINE MONTHS
ENDED ENDED
SEPTEMBER 30, SEPTEMBER 30,
1995 1995
-------------------------------
WEIGHTED AVERAGE SHARES OUTSTANDING
Primary:
Historical weighted average shares of common stock 1,384 1,384
Adjustment for shares added as a result of:
Conversion of Junior Subordinated Notes 686 686
Initial public offering 2,053 2,053
Exercise of overallotment option 100 100
-------------------------------
4,223 4,223
Fully diluted:
Adjustment for shares related to Convertible Notes 85 85
-------------------------------
4,308 4,308
===============================
SUPPLEMENTARY NET INCOME PER SHARE
Primary $ .33 $ 1.29
Fully diluted $ .32 $ 1.27
</TABLE>
7
<PAGE>
SCP POOL CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)--
(CONTINUED)
4. SUBSEQUENT EVENT
On September 26, 1996, the Company agreed to sell certain assets of Alliance,
primarily inventory and fixed assets, to Bio-Lab. At September 30, 1996 Alliance
had assets of approximately $6.8 million. For the nine months ended September
30, 1996, Alliance generated revenues and operating income of approximately $5.4
million and $300,000, respectively. The sale was completed on October 31, 1996.
Management does not expect the sale to significantly impact the Company's
operating results for the quarter ended December 31, 1996.
8
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
GENERAL
The Company was formed in December 1993 to acquire substantially all of the
assets and assume certain liabilities of its predecessor. From its inception in
1980 through the end of 1993, the Predecessor steadily increased its sales by
opening new service center locations and by increasing sales to new and existing
customers. Since the Company's acquisition of the Predecessor in December 1993
(the "SCP Acquisition"), the Company has grown by opening new service centers
and increasing sales to new and existing customers, and through strategic
acquisitions. From January 1, 1990 to September 30, 1996, the Company expanded
from 8 service centers in 6 states to 73 service centers in 22 states. On
September 26, 1996, the Company acquired the B-L Network, Inc. (the BLN
Acquisition), a wholesaler of swimming pool supplies with 39 service centers in
12 states.
The Company derives its revenues primarily from the sale of swimming pool
supplies and related products, including chemicals, cleaners, packaged pools and
liners, filters, heaters, pumps, lights, repair parts and other equipment
required to build, maintain, install and overhaul residential and small
commercial swimming pools. The Company sells its products primarily to swimming
pool remodelers and builders, independent swimming pool retailers and swimming
pool repair and service companies. These customers tend to be small, family
owned businesses with relatively limited capital resources. The Company
maintains a strict credit policy. Losses from customer receivables have
historically been within management's expectations.
The Company's business is highly seasonal. In general, sales and net income are
highest during the second and third quarters, which represent the peak months of
swimming pool use and installation. Sales are substantially lower during the
first and fourth quarters.
The swimming pool supply industry is affected by various factors, including
general economic conditions, the level of new housing construction, weather and
consumer attitudes towards pool chemical products for environmental or safety
reasons. Although management believes that the Company's geographic diversity
could mitigate the effect of a regional economic downturn and that the
continuing maintenance and repair needs for existing swimming pools could
mitigate the effect of a general economic downturn, there can be no assurance
that the Company's results of operations and expansion plans would not be
materially adversely affected by any of such downturns.
The principal components of the Company's expenses include cost of goods sold,
which represents the amount paid to manufacturers for products, and operating
expenses, which are primarily related to labor, occupancy, commissions and
marketing. Some geographic
9
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS (CONTINUED)
GENERAL (CONTINUED)
markets serviced by the Company, particularly California, Texas and Florida,
tend to be more competitive than others. In response to competitive pressures
from any of its current or future competitors, the Company may be required to
lower selling prices in order to maintain or increase market share, and such
measures could adversely affect the Company's gross margins and operating
results.
The Company completed an initial public offering of its common stock in October
1995. The net proceeds of the offering were used primarily to reduce
indebtedness and resulted in an extraordinary charge, net of tax, in the
Company's results of operations in the fourth quarter of 1995 of approximately
$750,000 to account for the write-off of deferred financing costs and the
payment of a prepayment premium associated with extinguishing such indebtedness.
In connection with the initial public offering, the management agreement between
the Company and its principal stockholder was terminated as of the consummation
of the offering and, as a result, no management fees have been or will be
payable with respect thereto after such time.
10
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS (CONTINUED)
RESULTS OF OPERATIONS
The following table shows, for the periods indicated, information derived from
the consolidated statements of operations of the Company expressed as a
percentage of net sales for such year.
<TABLE>
<CAPTION>
THREE MONTHS NINE MONTHS
ENDED SEPTEMBER 30, ENDED SEPTEMBER 30,
1996 1995 1996 1995
---------------------------------------------
<S> <C> <C> <C> <C>
Net sales 100.0% 100.0% 100.0% 100.0%
Cost of sales 78.3 78.0 77.4 77.7
---------------------------------------------
Gross profit 21.7 22.0 22.6 22.3
Warehouse expense 4.0 3.8 3.7 3.6
Selling and administrative expenses 10.7 11.0 10.8 10.2
Goodwill amortization .3 .4 .3 .4
---------------------------------------------
Operating income 6.7 6.8 7.8 8.1
Other income (expense):
Interest expense (1.3) (3.3) (1.1) (3.0)
Amortization expense (.2) (.4) (.2) (.3)
Miscellaneous .5 .1 .3 -
---------------------------------------------
Income before income taxes 5.7% 3.2% 6.8% 4.8%
=============================================
</TABLE>
11
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS (CONTINUED)
RESULTS OF OPERATIONS (CONTINUED)
The following discussions compare the results of operations of the Company for
the three-month and nine-month periods ended September 30, 1996 and 1995.
Three Months Ended September 30, 1996 Compared to Three Months Ended
September 30, 1995
Net sales increased by $15.1 million, or 32.0%, to $62.3 million in the three
months ended September 30, 1996 from $47.2 million in the comparable 1995
period. An increase in comparable service center sales of approximately 18.3%
accounted for $8.3 million of the increase. New service centers and service
centers acquired in 1995 accounted for the remainder of the increase.
Gross profit increased by $3.1 million, or 30.1%, to $13.5 million in the three
months ended September 30, 1996 from $10.4 million in the comparable 1995
period. Gross profit as a percentage of net sales remained relatively unchanged,
at 21.7% in the 1996 period compared to 22.0% in the 1995 period.
Operating expenses increased by $2.2 million, or 30.6%, to $9.4 million in the
three months ended September 30, 1996 from $7.2 million in the comparable 1995
period. This increase is reflective of (1) salaries, occupancy expense and other
costs associated with new service centers, and (2) payroll and other operating
costs required to support the increased sales volume at existing service
centers. Operating expenses as a percentage of sales remained relatively
unchanged, at 15.0% in the 1996 period compared to 15.1% in the 1995 period.
Interest and other expenses decreased to $0.6 million in the three months ended
September 30, 1996 from $1.7 million in the comparable 1995 period. The decrease
was primarily attributable to the reduction in the Company's debt with the
proceeds from the Company's initial public offering in October 1995.
12
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS (CONTINUED)
RESULTS OF OPERATIONS (CONTINUED)
Nine Months Ended September 30, 1996 Compared to Nine Months Ended
September 30, 1995
Net sales increased by $49.7 million, or 35.5%, to $189.4 million in the nine
months ended September 30, 1996 from $139.7 million in the comparable 1995
period. An increase in comparable service center sales of approximately 18.7%
accounted for $22.9 million of the increase. Service centers acquired in 1995
accounted for $25.0 million of the increase in net sales, and an increase in
sales at new service centers accounted for $2.1 million of the total increase.
These increases were offset by a decrease in net sales to third parties by
Alliance.
Gross profit increased by $11.6 million, or 37.5%, to $42.8 million in the nine
months ended September 30, 1996 from $31.2 million in the comparable 1995
period. Gross profit as a percentage of net sales remained relatively unchanged,
at 22.6% in the 1996 period compared to 22.3% in the 1995 period.
Operating expenses increased by $8.3 million, or 41.7%, to $28.1 million in the
nine months ended September 30, 1996 from $19.8 million in the comparable 1995
period. This increase is reflective of (1) salaries, occupancy expense and other
costs associated with the acquired service centers, and (2) payroll and other
operating costs required to support the increased sales volume at existing
service centers. Operating expenses as a percentage of sales increased to 14.8%
in the 1996 period compared to 14.2% in the 1995 period. This increase was
primarily attributable to higher occupancy costs in California.
Interest and other expenses decreased to $1.9 million in the nine months ended
September 30, 1996 from $4.7 million in the comparable 1995 period. The decrease
was primarily attributable to the reduction in the Company's debt with the
proceeds from the Company's initial public offering in October 1995.
13
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS (CONTINUED)
SEASONALITY AND QUARTERLY FLUCTUATIONS
The Company's business is highly seasonal. In general, sales and net income are
highest during the second and third quarters, which represent the peak months of
swimming pool use and installation. Sales are substantially lower during the
first and fourth quarters.
The Company experiences a build-up of inventory and accounts payable during the
first and second quarters of the year in anticipation of the peak swimming pool
supply selling season. The Company's peak borrowing occurs during the second
quarter, primarily because dated accounts payable offered by the Company's
suppliers typically are payable in April, May and June, while the Company's peak
accounts receivable collections typically occur in June, July and August.
The principal external factor affecting the Company's business is weather. Hot
weather can increase purchases of chemicals and supplies and pool installations.
Unseasonably cool weather or extraordinary amounts of rainfall during the peak
sales season can decrease purchases of chemicals and supplies and pool
installations. In addition, unseasonably early or late warming trends can
increase or decrease the length of the pool season and, therefore, the Company's
sales.
To encourage preseason orders, the Company, like many other swimming pool supply
distributors, utilizes preseason sales programs which provide for extended
dating terms and other incentives to its customers. Some of the Company's
suppliers also offer extended dating terms on certain products to the Company
for preseason or early season purchases. In offering extended dating terms to
its customers and accepting extended dating terms from its suppliers, the
Company effectively finances a portion of its receivables with extended
payables.
The Company expects that its quarterly results of operations will fluctuate
depending on the timing and amount of revenue contributed by new service centers
and acquisitions. The Company attempts to open its new stores at the end of the
fourth quarter or the beginning of the first quarter to take advantage of
preseason sales programs and the peak season.
14
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS (CONTINUED)
SEASONALITY AND QUARTERLY FLUCTUATIONS (CONTINUED)
The following table sets forth certain unaudited quarterly data for 1995 and the
first three quarters for 1996 which, in the opinion of management, reflect all
adjustments, consisting of only normal recurring adjustments, necessary for a
fair presentation of such data. Results of any one or more quarters are not
necessarily indicative of results for an entire fiscal year or of continuing
trends.
<TABLE>
<CAPTION>
1995 1996
---------------------------------------- ---------------------------
1ST 2ND 3RD 4TH 1ST 2ND 3RD
QUARTER QUARTER QUARTER QUARTER QUARTER QUARTER QUARTER
------- ------- ------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
(Dollars in thousands)
Net sales $25,846 $66,667 $47,229 $21,353 $41,145 $85,867 $62,344
Gross profit 5,954 14,799 10,399 5,969 9,273 20,042 13,531
Operating income 653 7,447 3,236 (1,814) 743 9,843 4,176
Net sales as a percentage
of annual net sales 16% 42% 29% 13% N/A N/A N/A
Gross profit as a
percentage of annual gross
profit 16% 40% 28% 16% N/A N/A N/A
Operating income as a
percentage of annual
operating income 7% 78% 34% (19)% N/A N/A N/A
</TABLE>
LIQUIDITY AND CAPITAL RESOURCES
Currently, the Company's primary sources of working capital are cash flow from
operations and borrowings under the Credit Facility, which was amended effective
September 26, 1996. As of September 30, 1996, this Credit Facility consisted of
a term loan and a revolving line of credit. The Company's borrowings under its
previous credit facility, together with cash flow from operations and seller
financing have historically have been sufficient to support the Company's growth
and to finance acquisitions. Considering the Company's borrowing base as of
September 30, 1996, the Company had approximately $24.1 million available for
borrowing under the Credit Facility, the only additional credit source currently
available to the Company.
Borrowings under the Credit Facility may, at the Company's option, bear interest
at either (i) the agent's corporate base rate or the federal funds rate plus
0.5%, whichever is higher, plus a margin ranging from 0.0% to 1.0% or (ii) LIBOR
plus a margin ranging from 1.25% to 2.50%, in each case depending on the
Company's leverage ratio. Substantially
15
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS (CONTINUED)
LIQUIDITY AND CAPITAL RESOURCES (CONTINUED)
all of the assets of the Company (other than inventory acquired from BLN, which
secures the Company's obligations to BLN), including the capital stock of South
Central Pool Supply, Inc., the Company's wholly owned subsidiary, secure the
Company's obligations under the Credit Facility. The Credit Facility has
numerous restrictive covenants which require the Company to maintain minimum
levels of interest coverage and fixed charge coverage and which also restrict
the Company's ability to pay dividends and make capital expenditures. As of
September 30, 1996, the Company was in compliance with all such covenants and
financial ratio requirements. The Credit Facility expires of September 26, 2002.
During the nine months ended September 30, 1996, the Company borrowed $2.6
million to meet seasonal working capital requirements and made scheduled
payments of $2.8 million required under its previous credit facility. In
addition, the seller of BLN provided $32.7 million of financing to the Company.
This financing, which bears interest at 6%, is due in varying monthly
installments through September 1998. Approximately $11.4 million of this note
was paid in October 31, 1996, partially in connection with the sale of Alliance.
In September 1996, in connection with the execution of the Credit Facility, the
Company converted approximately $15.6 million due under its previous revolving
credit facility to the term loan portion of the Credit Facility.
During the nine months ended September 30, 1995, the Company borrowed
approximately $5.9 million under its previous credit facility to finance three
acquisitions and borrowed an additional $13.4 million under such credit facility
to meet seasonal working capital requirements. In addition, the seller of one
business acquired by the Company provided $2.7 million of financing to the
Company, of which $1.8 million remains outstanding at September 30, 1996.
The increase from December 31, 1995 to September 30, 1996 in the amount of the
Company's accounts receivable and inventory is a result of the normal seasonal
increase in receivables, and the BLN Acquisition, respectively.
Excluding acquisitions, the Company made capital expenditures of $534,000 and
$554,000 in the nine months ended September 30, 1995 and 1996, respectively.
To finance future acquisitions and the repayment of the Company's obligations to
BLN and the seller of another acquired business, the Company expects to utilize
its ability to borrow additional funds. Depending on market conditions, the
Company may also incur additional indebtedness or issue common or preferred
stock (which may be issued to third parties or to sellers of acquired
businesses).
16
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS (CONTINUED)
INFLATION
The Company does not believe that inflation has had a significant impact on its
results of operations for the periods presented.
CAUTIONARY STATEMENT FOR PURPOSES OF THE "SAFE HARBOR" PROVISIONS OF THE PRIVATE
SECURITIES LITIGATION REFORM ACT OF 1995
With the exception of historical matters, the matters discussed in this
Quarterly Report on Form 10-Q are forward-looking statements that involve risks
and uncertainties, including but not limited to factors related to (i) the
Company's ability to identify appropriate acquisition candidates, complete
acquisitions on satisfactory terms, or successfully integrate acquired
businesses; (ii) the sensitivity of the swimming pool supply business to cool or
rainy weather; (iii) the intense competition and low barriers to entry in the
swimming pool supply industry; (iv) the Company's ability to obtain financing on
satisfactory terms and the degree to which the Company is leveraged; (v) the
sensitivity of the swimming pool supply business to general economic conditions;
(vi) the Company's ability to remain in compliance with the numerous
environmental, health and safety requirements to which it is subject; (vii) the
risk of fire, safety and casualty losses and related liabilities claims inherent
in the storage and repackaging of chemicals sold by the Company; and (viii) the
other factors discussed in the Company's filings with the Securities and
Exchange Commission. Such factors could affect the Company's actual results and
could cause such results to differ materially from the Company's expectations
described above.
17
<PAGE>
Part II. Other Information
Item 1. Legal Proceedings
The Company currently is not involved in any material legal
proceedings.
Item 2. Changes in Securities
None
Item 3. Defaults Upon Senior Securities
None
Item 4. Submission of Matters to a Vote of Security Holders
None
Item 5. Other Information
None
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
10.1 Second Amended and Restated Credit Agreement dated as
of September 26, 1996 among South Central Pool Supply,
Inc., The First National Bank of Chicago and the
Institutions party thereto as lenders.
10.2 Asset Purchase Agreement, dated as of September 26,
1996, among South Central Pool Supply, Inc., SCP Pool
Corporation, the B-L Network, Inc. and Bio-Lab, Inc.
(incorporated by reference to the Form 8-K filed by the
Company on October 9, 1996.)
10.3 Asset Purchase Agreement, dated as of September 26,
1996, among Alliance Packaging, Inc., SCP Pool
Corporation, South Central Pool Supply, Inc. and Bio-
Lab.
10.4 Supply Agreement, among Bio-Lab, Inc., South Central
Pool Supply, Inc., and SCP Pool Corporation.
(Confidential Treatment Requested; To be filed by
amendment pending resolution of request for
Confidential Treatment)
18
<PAGE>
10.5 Supply Agreement, dated as of September 26, 1996, among
Bio-Lab, Inc., South Central Pool Supply, Inc., and SCP
Pool Corporation. (Confidential Treatment Requested; To be
filed by amendment pending resolution of request for
Confidential Treatment)
27.1 Financial Data Schedule
(b) Reports on Form 8-K
On October 9, 1996, the Company filed a report on Form 8-K
disclosing that (i) its wholly owned subsidiary, South
Central Pool Supply, Inc., had acquired substantially all
of the assets of The B-L Network, Inc. in exchange for
promissory notes of the Company in an aggregate amount of
approximately $32.7 million; and (ii) its indirect wholly
owned subsidiary, Alliance Packaging, Inc. had agreed to
sell certain assets, including inventory and fixed assets,
to Bio-Lab, Inc. The sale of assets by Alliance Packaging
was completed on October 31, 1996.
19
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
SCP POOL CORPORATION
--------------------
DATE: November 14, 1996 BY: /s/ MAURICE VAN DYKE
---------------------- -----------------------------------------
Maurice Van Dyke, Chief Financial Officer,
Treasurer and Secretary and duly authorized
signatory on behalf of the Registrant
20
<PAGE>
EXHIBIT 10.1
EXECUTION COPY
SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
DATED AS OF SEPTEMBER 26, 1996
among
SOUTH CENTRAL POOL SUPPLY, INC.,
THE INSTITUTIONS FROM TIME TO TIME
PARTY HERETO AS LENDERS,
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Agent
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
<S> <C>
ARTICLE I: DEFINITIONS.................................................... 1
1.1 Certain Defined Terms.............................................. 1
1.2 Subsidiary References.............................................. 29
1.3 Supplemental Disclosure............................................ 29
1.4 Amendment and Restatement of Restated Credit Agreement............. 30
ARTICLE II: THE CREDITS................................................... 30
2.1. Term Loans......................................................... 30
2.2 Revolving Loans.................................................... 32
2.3 Ratable Loans...................................................... 32
2.4 Rate Options for all Advances...................................... 33
2.5 Optional Payments; Mandatory Prepayments........................... 33
(A) Optional Payments........................................... 33
(B) Mandatory Prepayments....................................... 33
2.6 Reduction of Commitments........................................... 34
2.7 Method of Borrowing................................................ 35
2.8 Determination of Applicable Margins, Applicable Letter of Credit
Fee and Applicable Commitment Fee................................ 35
2.9 Method of Selecting Types and Interest Periods for Advances........ 37
2.10 Minimum Amount of Each Advance..................................... 37
2.11 Method of Selecting Types and Interest Periods for Conversion and
Continuation of Advances......................................... 37
(A) Right to Convert............................................ 37
(B) Automatic Conversion and Continuation....................... 38
(C) No Conversion Post-Default or Post-Unmatured Default........ 38
(D) Conversion/Continuation Notice.............................. 38
2.12 Default Rate....................................................... 38
2.13 Method of Payment.................................................. 38
2.14 Notes, Telephonic Notices.......................................... 38
2.15 Promise to Pay; Interest and Fees; Interest Payment Dates;
Interest and Fee Basis; Taxes; Loan and Control Accounts......... 39
(A) Promise to Pay.............................................. 39
(B) Interest Payment Dates...................................... 39
(C) Commitment Fees; Closing Fees; Agent's and Arranger's Fees.. 39
(D) Interest and Fee Basis...................................... 40
(E) Taxes....................................................... 40
(F) Loan Account................................................ 43
(G) Control Account............................................. 43
(H) Entries Binding............................................. 43
2.16 Notification of Advances, Interest Rates, Prepayments and
Aggregate Revolving Loan Commitment Reductions................... 43
</TABLE>
i
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<TABLE>
<S> <C>
2.17 Lending Installations.............................................. 43
2.18 Non-Receipt of Funds by the Agent.................................. 43
2.19 Termination Date................................................... 44
2.20 Replacement of Certain Lenders..................................... 44
2.21 Letter of Credit Facility.......................................... 45
2.22 Letter of Credit Participation..................................... 45
2.23 Reimbursement Obligation........................................... 45
2.24 Cash Collateral.................................................... 46
2.25 Letter of Credit Fees.............................................. 46
2.26 Indemnification; Exoneration....................................... 47
ARTICLE III: CHANGE IN CIRCUMSTANCES...................................... 48
3.1 Yield Protection................................................... 48
3.2 Changes in Capital Adequacy Regulations............................ 48
3.3 Availability of Types of Advances.................................. 49
3.4 Funding Indemnification............................................ 49
3.5 Lender Statements; Survival of Indemnity........................... 49
ARTICLE IV: CONDITIONS PRECEDENT.......................................... 50
4.1 Conditions Precedent to Effectiveness of this Agreement............ 50
4.2 Each Advance and Letter of Credit.................................. 51
ARTICLE V: REPRESENTATIONS AND WARRANTIES................................. 52
5.1 Organization; Corporate Powers..................................... 52
5.2 Authority.......................................................... 52
5.3 No Conflict; Governmental Consents................................. 53
5.4 Financial Statements............................................... 53
5.5 No Material Adverse Change......................................... 54
5.6 Taxes.............................................................. 54
(A) Tax Examinations............................................. 54
(B) Payment of Taxes............................................. 54
5.7 Litigation; Loss Contingencies and Violations...................... 54
5.8 Subsidiaries....................................................... 55
5.9 ERISA.............................................................. 55
5.10 Accuracy of Information............................................ 56
5.11 Securities Activities.............................................. 56
5.12 Material Agreements................................................ 56
5.13 Compliance with Laws............................................... 56
5.14 Assets and Properties.............................................. 56
5.15 Statutory Indebtedness Restrictions................................ 57
5.16 Post-Retirement Benefits........................................... 57
5.17 Insurance.......................................................... 57
5.18 Contingent Obligations............................................. 57
5.19 Restricted Junior Payments......................................... 57
5.20 Labor Matters...................................................... 57
5.21 Environmental Matters.............................................. 58
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C>
5.22 The BLN Acquisition................................................ 58
ARTICLE VI: COVENANTS..................................................... 58
6.1 Reporting........................................................... 58
(A) Financial Reporting.......................................... 58
(B) Notice of Default............................................ 60
(C) Lawsuits..................................................... 61
(D) Insurance.................................................... 61
(E) ERISA Notices................................................ 61
(F) Labor Matters................................................ 62
(G) Other Indebtedness........................................... 62
(H) Environmental Notices........................................ 63
(I) Borrowing Base Certificate................................... 63
(J) SEC Filings and Notices....................................... 63
(K) Other Publicly Available Information.......................... 63
(L) Other Information............................................ 63
6.2 Affirmative Covenants............................................... 63
(A) Corporate Existence, Etc..................................... 63
(B) Corporate Powers; Conduct of Business........................ 64
(C) Compliance with Laws, Etc.................................... 64
(D) Payment of Taxes and Claims; Tax Consolidation............... 64
(E) Insurance.................................................... 64
(F) Inspection of Property; Books and Records; Discussions....... 65
(G) Insurance and Condemnation Proceeds.......................... 65
(H) ERISA Compliance............................................. 66
(I) Maintenance of Property...................................... 66
(J) Environmental Compliance..................................... 66
(K) Use of Proceeds.............................................. 66
(L) Interest Rate Agreements..................................... 67
(M) Collection Account Arrangements.............................. 67
(N) Separate Corporate Existence................................. 68
6.3 Negative Covenants.................................................. 69
(A) Indebtedness................................................. 69
(B) Sales of Assets.............................................. 72
(C) Liens........................................................ 72
(D) Investments.................................................. 73
(E) Contingent Obligations....................................... 74
(F) Restricted Junior Payments................................... 74
(G) Conduct of Business; Subsidiaries; Acquisitions.............. 76
(H) Transactions with Shareholders and Affiliates................ 77
(I) Restriction on Fundamental Changes........................... 78
(J) Sales and Leasebacks......................................... 78
(K) Margin Regulations........................................... 78
(L) ERISA........................................................ 78
(M) Issuance of Capital Stock.................................... 78
(N) Corporate Documents.......................................... 78
</TABLE>
iii
<PAGE>
<TABLE>
<S> <C>
(O) Other Indebtedness.......................................... 78
(P) Fiscal Year................................................. 79
(Q) Subsidiary Covenants........................................ 79
(R) Rate Hedging Obligations.................................... 79
(S) Subordinated Indebtedness................................... 79
(T) Purchase Agreements......................................... 79
6.4 Financial Covenants................................................ 80
(A) Defined Terms for Financial Covenants....................... 80
(B) Interest Expense Coverage Ratio............................. 81
(C) Fixed Charge Coverage Ratio................................. 81
(D) Maximum Leverage Ratio...................................... 81
ARTICLE VII: DEFAULTS..................................................... 82
7.1 Defaults........................................................... 82
ARTICLE VIII: ACCELERATION, DEFAULTING LENDERS; WAIVERS,
AMENDMENTS AND REMEDIES.................................................. 85
8.1 Termination of Commitments; Acceleration........................... 85
8.2 Defaulting Lender.................................................. 85
8.3 Amendments......................................................... 87
8.4 Preservation of Rights............................................. 87
ARTICLE IX: GENERAL PROVISIONS............................................ 88
9.1 Survival of Representations........................................ 88
9.2 Governmental Regulation............................................ 88
9.3 Performance of Obligations......................................... 88
9.4 Headings........................................................... 89
9.5 Entire Agreement................................................... 89
9.6 Several Obligations; Benefits of this Agreement.................... 89
9.7 Expenses; Indemnification.......................................... 89
(A) Expenses.................................................... 89
(B) Indemnity................................................... 89
(C) Waiver of Certain Claims.................................... 90
(D) Survival of Agreements...................................... 90
9.8 Numbers of Documents............................................... 90
9.9 Accounting......................................................... 91
9.10 Severability of Provisions......................................... 91
9.11 Nonliability of Lenders............................................ 91
9.12 GOVERNING LAW...................................................... 91
9.13 CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL............ 91
(A) EXCLUSIVE JURISDICTION...................................... 91
(B) OTHER JURISDICTIONS......................................... 91
(C) SERVICE OF PROCESS.......................................... 92
(D) WAIVER OF JURY TRIAL........................................ 92
(E) WAIVER OF BOND.............................................. 92
(F) ADVICE OF COUNSEL........................................... 93
</TABLE>
iv
<PAGE>
<TABLE>
<S> <C>
9.14 Subordination of Intercompany Indebtedness........................ 93
9.15 No Strict Construction............................................ 94
ARTICLE X: THE AGENT...................................................... 94
10.1 Appointment....................................................... 94
10.2 Powers............................................................ 94
10.3 General Immunity.................................................. 95
10.4 No Responsibility for Loans, Creditworthiness, Collateral,
Recitals, Etc................................................... 95
10.5 Action on Instructions of Lenders................................. 95
10.6 Employment of Agents and Counsel.................................. 95
10.7 Reliance on Documents; Counsel.................................... 95
10.8 Agent's Reimbursement and Indemnification......................... 96
10.9 Rights as a Lender................................................ 96
10.10 Lender Credit Decision............................................ 96
10.11 Successor Agent................................................... 96
10.12 Collateral Documents.............................................. 97
ARTICLE XI: SETOFF; RATABLE PAYMENTS...................................... 97
11.1 Setoff............................................................ 97
11.2 Ratable Payments.................................................. 97
11.3 Application of Payments........................................... 97
11.4 Relations Among Lenders........................................... 98
ARTICLE XII: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS............ 99
12.1 Successors and Assigns............................................ 99
12.2 Participations.................................................... 99
(A) Permitted Participants; Effect............................. 99
(B) Voting Rights.............................................. 99
(C) Benefit of Setoff.......................................... 100
12.3 Assignments....................................................... 100
(A) Permitted Assignments...................................... 100
(B) Effect; Effective Date..................................... 100
(C) The Register............................................... 101
12.4 Confidentiality................................................... 101
12.5 Dissemination of Information...................................... 101
ARTICLE XIII: NOTICES..................................................... 102
13.1 Giving Notice..................................................... 102
13.2 Change of Address................................................. 102
ARTICLE XIV: COUNTERPARTS................................................. 102
</TABLE>
v
<PAGE>
EXHIBITS AND SCHEDULES
EXHIBIT A - Borrowing Base Certificate (Definitions)
EXHIBIT B - Term Loan Amounts and Revolving Loan Commitments
(Definitions)
EXHIBIT C - Form of Substituted and Amended Revolving Note
(Definitions)
EXHIBIT D - Form of Substituted and Amended Term Note (Definitions)
EXHIBIT E - Form of Assignment Agreement ((S)(S) 2.20, 12.3)
EXHIBIT F - Form of Officer's Certificate ((S)(S) 4.2, 6.1(A)(iv))
EXHIBIT G - Form of Compliance Certificate ((S)(S) 4.2, 6.1(A)(iv))
EXHIBIT H - Form of Demand Intercompany Note ((S) 6.3(A)(iii)(a))
EXHIBIT I - Form of Intercompany Security Agreement ((S) 6.3(A)(iii)(b))
EXHIBIT J - List of Closing Documents
EXHIBIT K - Holdings Subordination Agreement
vi
<PAGE>
SCHEDULE 1.1.1 - Permitted Existing Contingent Obligations
(Definitions)
SCHEDULE 1.1.2 - Permitted Existing Indebtedness (Definitions)
SCHEDULE 1.1.3 - Permitted Existing Investments (Definitions)
SCHEDULE 1.1.4 - Permitted Existing Liens (Definitions)
SCHEDULE 5.3 - Conflicts; Governmental Consents ((S) 5.3)
SCHEDULE 5.7 - Litigation; Loss Contingencies ((S) 5.7)
SCHEDULE 5.8 - Subsidiaries ((S) 5.8)
SCHEDULE 5.17 - Insurance ((S)(S) 5.17, 6.2(E))
SCHEDULE 5.18 - Contingent Obligations ((S)(S) 5.7, 5.18)
SCHEDULE 5.20 - Labor Matters; Compensation Agreements ((S) 5.20)
SCHEDULE 5.21 - Environmental Matters ((S) 5.21)
SCHEDULE 6.2(M) - Deposit Accounts; Collection Account Agreements
((S) 6.2(M))
SCHEDULE 6.3(F)(ii) - Schedule of Permissible Tax Payments ((S) 6.3(F)(ii))
vii
<PAGE>
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This Second Amended and Restated Credit Agreement dated as of September 26,
1996 is entered into among South Central Pool Supply, Inc., a Delaware
corporation, the institutions from time to time a party hereto as Lenders,
whether by execution of this Agreement or an assignment and acceptance pursuant
to Section 12.3, and The First National Bank of Chicago, in its capacity as
contractual representative for itself and the other Lenders. The parties hereto
agree as follows:
WITNESSETH:
WHEREAS, the Borrower has requested and the Agent and the Lenders have
agreed to amend the Restated Credit Agreement (as defined below);
WHEREAS, the Borrower, the Lenders and the Agent have agreed to enter
into this Agreement in order to (i) amend and restate the Restated Credit
Agreement; (ii) re-evidence the Obligations, which shall be repayable in
accordance with the terms of this Agreement; and (iii) set forth the terms and
conditions under which the Lenders will, from time to time, make loans and
extend other financial accommodations to or for the benefit of the Borrower; and
WHEREAS, it is the intention of the parties to this Agreement that
this Agreement not constitute a novation and that, from and after the Effective
Date, the Restated Credit Agreement shall be amended and restated hereby and all
references herein to "hereunder," "hereof," or words of like import and all
references in any other Loan Document to the "Credit Agreement" or words of like
import shall mean and be a reference to the Restated Credit Agreement as amended
and restated hereby (and any section references to the Restated Credit Agreement
shall refer to the applicable equivalent provision set forth herein although the
section number thereof may have changed);
NOW, THEREFORE, in consideration of the terms and conditions contained
herein, and of any loans or extensions of credit heretofore, now or hereafter
made to or for the benefit of the Borrower by the Lenders and the Agent, the
parties hereto agree as follows:
ARTICLE I: DEFINITIONS
- ----------------------
1.1 Certain Defined Terms. In addition to the terms defined in other
sections of this Agreement, the following terms used in this Agreement shall
have the following meanings, applicable both to the singular and the plural
forms of the terms defined:
As used in this Agreement:
"ACCOMMODATION OBLIGATIONS" is defined in the definition "Contingent
Obligations" below.
1
<PAGE>
"ACCOUNT DEBTOR" means and includes the account debtor or obligor with
respect to any of the Receivables and/or the prospective purchaser with respect
to any contract right, and/or any party who enters into or proposes to enter
into any contract or other arrangement with the Borrower or any of its
Subsidiaries.
"ACQUISITION" means any transaction, or any series of related transactions,
consummated on or after the date of this Agreement, by which the Borrower or any
of its Subsidiaries (i) acquires any going business or all or substantially all
of the assets of any firm, corporation or division thereof, whether through
purchase of assets, merger or otherwise or (ii) directly or indirectly acquires
(in one transaction or as the most recent transaction in a series of
transactions at least a majority (in number of vote) of the securities of a
corporation which have ordinary voting power for the election of directors
(other than securities having such power only by reason of the happening of a
contingency), a majority (by percentage of voting power) of the membership,
ownership or other equity interests in a limited liability company or a majority
(by percentage of voting power) of the outstanding partnership interests of a
partnership.
"ADJUSTED NET INCOME" is defined in Section 6.4(A) hereof.
--------------------
"ADVANCE" means a borrowing hereunder consisting of the aggregate amount of
the several Loans made by the Lenders to the Borrower of the same Type and, in
the case of Eurodollar Advances, for the same Interest Period.
"AFFECTED LENDER" is defined in Section 2.20 hereof.
---------------
"AFFILIATE" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person is the
"beneficial owner" (as defined in Rule 13d-3 under the Securities Exchange Act)
of twenty percent (20%) or more of any class of voting securities (or other
voting interests) of the controlled Person or possesses, directly or indirectly,
the power to direct or cause the direction of the management or policies of the
controlled Person, whether through ownership of stock, membership, ownership or
other equity interests, by contract or otherwise.
"AGENT" means First Chicago in its capacity as contractual representative
for itself and the Lenders pursuant to Article X hereof and any successor Agent
appointed pursuant to Article X hereof.
"AGGREGATE REVOLVING LOAN COMMITMENT" means the aggregate of the Revolving
Loan Commitments of all the Lenders, as reduced from time to time pursuant to
the terms hereof. The Aggregate Revolving Loan Commitment is Fifty-Five Million
and 00/100 dollars ($55,000,000.00) subject to reduction as provided in this
Agreement.
"AGREEMENT" means this Second Amended and Restated Credit Agreement, as it
may be further amended, restated or otherwise modified and in effect from time
to time.
2
<PAGE>
"AGREEMENT ACCOUNTING PRINCIPLES" means generally accepted accounting
principles as in effect as of the Original Closing Date, applied in a manner
consistent with that used in preparing the historical financial statements
referred to in Section 5.4 hereof.
"ALLIANCE" means Alliance Packaging, Inc., a Delaware corporation and a
wholly-owned subsidiary of the Borrower, and its successors and assigns,
including a debtor-in-possession on behalf of Alliance Packaging, Inc.
"ALLIANCE GUARANTY" means that certain Guaranty entered into between
Alliance and the Agent dated as of January 20, 1995, as the same may from time
to time be amended, modified, supplemented or restated.
"ALLIANCE SALE" means the acquisition by Bio-Lab of certain of the assets
and assumption of certain of the liabilities of Alliance on the terms and
conditions set forth in the Alliance Sale Agreement.
"ALLIANCE SALE AGREEMENT" means the Asset Purchase Agreement dated as of
September 26, 1996, among Alliance, Bio-Lab, the Borrower and Holdings.
"ALLIANCE SALE DATE" means the date of the closing of the transactions
contemplated by the Alliance Sale Agreement.
"ALLIANCE SECURITY AGREEMENT" means that certain Amended and Restated
Security Agreement entered into between Alliance and the Agent dated as of May
30, 1996, as amended by Amendment No. 1 thereto of even date herewith, as the
same may from time to time be amended, modified, supplemented or restated.
"ALTERNATE BASE RATE" means, for any day, a fluctuating rate of interest
per annum equal to the higher of (i) the Corporate Base Rate for such day and
(ii) the sum of (a) the Federal Funds Effective Rate for such day and (b) one-
half of one percent (1/2%) per annum.
"APPLICABLE COMMITMENT FEE" as at any date of determination, shall be the
rate per annum then applicable in the determination of the amount payable under
Section 2.15(C) with respect to the unused Aggregate Revolving Loan Commitment,
determined in accordance with the provisions of Section 2.8(a).
"APPLICABLE EURODOLLAR MARGIN" as at any date of determination, shall be
the rate per annum then applicable to Eurodollar Loans determined in accordance
with the provisions of Section 2.8(a).
"APPLICABLE FLOATING RATE MARGIN" as at any date of determination, shall be
the rate per annum then applicable to Floating Rate Loans determined in
accordance with the provisions of Section 2.8(a).
3
<PAGE>
"APPLICABLE LETTER OF CREDIT FEE" as at any date of determination, shall be
the rate per annum then applicable in the determination of the amount payable
under Section 2.25 with respect to Letters of Credit, determined in accordance
with the provisions of Section 2.8(a).
"APPLICABLE MARGINS" is defined in Section 2.5(B)(i)(d).
"ASSET SALE" means, with respect to any Person, (i) the sale, lease,
conveyance, disposition or other transfer by such Person of any of its assets
(including by way of a sale-leaseback transaction and including the sale or
other transfer of any of the capital stock of any Subsidiary of such Person) or
(ii) the issuance, sale, conveyance, disposition or other transfer by such
Person of any Capital Stock of or ownership, membership or other equity
interests in such Person; provided, however, that notwithstanding the foregoing,
the term "Asset Sale" shall not include the sale, lease, conveyance, disposition
or other transfer of any assets in the ordinary course of business.
"AUTHORIZED OFFICER" means any of the Chairman, President, Treasurer,
Controller and Secretary of the Borrower, acting singly.
"BENEFIT PLAN" means a defined benefit plan as defined in Section 3(35) of
ERISA (other than a Multiemployer Plan) in respect of which Borrower or any
other member of the Controlled Group is, or within the immediately preceding six
(6) years was, an "employer" as defined in Section 3(5) of ERISA.
"BIO-LAB" means Bio-Lab, Inc., a Delaware corporation, and its successors
and assigns.
"BLN" means The B-L Network Inc., a Delaware corporation, and its
successors and assigns.
"BLN ACQUISITION" means the acquisition by the Borrower of certain of the
assets and assumption of certain of the liabilities of BLN on the terms and
conditions set forth in the BLN Purchase Agreement.
"BLN INTERCREDITOR AGREEMENT" means the Intercreditor Agreement dated as of
the Closing Date among the Agent, the Lenders and BLN, and acknowledged and
agreed to by the Borrower.
"BLN PURCHASE AGREEMENT" means the Asset Purchase Agreement dated as of
September 26, 1996, among the Borrower, BLN, Bio-Lab and Holdings, together with
the Fixed Asset Note, the Inventory Note, the Substitute Inventory Note, the
Security Agreements and the Chemical Supply Agreements as defined in and
delivered pursuant to such Asset Purchase Agreement.
"BORROWER" means South Central Pool Supply, Inc., a Delaware corporation,
and its successors and assigns, including a debtor-in-possession on behalf of
Borrower.
"BORROWING BASE" means, as of any date of calculation, an amount, as set
forth on the most current Borrowing Base Certificate delivered to the Agent,
equal to: (i) eighty percent (80%) of the Gross Amount of Eligible Receivables
of the Borrower; plus (ii) forty-five percent (45%) of the lesser of (A)
$1,000,000 multiplied by the number of service centers operated by the Borrower
and
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(B) the Gross Amount of Eligible Inventory of the Borrower; minus (iii) the
aggregate outstanding L/C Obligations less any Cash Equivalents on deposit as
cash collateral therefor; minus (iv) the then applicable Rentals Reserve. The
Agent shall give the Borrower commercially reasonable notice, taking into
account all facts and circumstances known by the Agent at such time, of any
change in the criteria to determine the eligibility of any Receivables or
Inventory of the Borrower or to the establishment by the Agent of any reserves
which, in any such case, might reasonably be expected to materially decrease the
amount of the Borrowing Base.
"BORROWING BASE CERTIFICATE" means a certificate, in substantially the form
of Exhibit A attached hereto and made a part hereof, setting forth the Borrowing
Base and the component calculations thereof.
"BORROWING DATE" means a date on which an Advance is made hereunder.
"BORROWING NOTICE" is defined in Section 2.9 hereof.
"BUSINESS ACTIVITY REPORT" means (A) a Notice of Business Activities Report
from the State of Minnesota, Department of Revenue, or (B) any similar report
required by any other State relating to the ability of the Borrower or its
Subsidiaries to enforce their accounts receivable claims against Account Debtors
located in any such state.
"BUSINESS DAY" means (i) with respect to any borrowing, payment or rate
selection of Loans bearing interest at the Eurodollar Rate, a day (other than a
Saturday or Sunday) on which banks are open for business in Chicago and New York
and on which dealings in United States dollars are carried on in the London
interbank market and (ii) for all other purposes a day (other than a Saturday or
Sunday) on which banks are open for business in Chicago, Illinois and New York,
New York.
"CAPITAL EXPENDITURES" is defined in Section 6.4(A) hereof.
"CAPITALIZED LEASE" of a Person means any lease of property by such Person
as lessee which would be capitalized on a balance sheet of such Person prepared
in accordance with Agreement Accounting Principles.
"CAPITALIZED LEASE OBLIGATIONS" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be capitalized
on a balance sheet of such Person prepared in accordance with Agreement
Accounting Principles.
"CAPITAL STOCK", with respect to any Person, means any capital stock of
such Person, regardless of class or designation, and all warrants, options,
purchase rights, conversion or exchange rights, voting rights, calls or claims
of any character with respect thereto.
"CASH EQUIVALENTS" means (i) marketable direct obligations issued or
unconditionally guaranteed by the United States government and backed by the
full faith and credit of the United States government; (ii) domestic and
Eurodollar certificates of deposit and time deposits, bankers' acceptances and
floating rate certificates of deposit issued by any commercial bank organized
under the laws of the United States, any state thereof, the District of
Columbia, or its branches or agencies
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and having capital and surplus in an aggregate amount not less than $500,000,000
(fully protected against currency fluctuations for any such deposits with a term
of more than ten (10) days); (iii) shares of money market, mutual or similar
funds having net assets in excess of $500,000,000 and the investments of which
are limited to investment grade securities (i.e., securities rated at least Baa
by Moody's Investors Service, Inc. or at least BBB by Standard & Poor's
Corporation) and (iv) commercial paper of United States and foreign banks and
bank holding companies and their subsidiaries and United States and foreign
finance, commercial industrial or utility companies which, at the time of
acquisition, are rated A-1 (or better) by Standard & Poor's Corporation or P-1
(or better) by Moody's Investors Services, Inc.; provided, that the maturities
of such Cash Equivalents shall not exceed 365 days.
"CASH FLOW PERIOD" means the period from January 1, 1997 through the end of
the Borrower's fiscal year ending December 31, 1997 and, thereafter, as separate
periods, each subsequent 12-month period ending on December 31 of each calendar
year.
"CHANGE" is defined in Section 3.2 hereof.
"CHANGE OF CONTROL" means an event or series of events by which:
(a) any "person" or "group" (within the meaning of Sections 13(d) and
14(d)(2) of the Securities Exchange Act), other than CHS, becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Securities Exchange
Act), directly or indirectly, of thirty percent (30%) or more of the
combined voting power of the then outstanding Capital Stock of the Borrower
entitled to vote generally in the election of the directors of the
Borrower;
(b) with respect to either Borrower or Holdings, during any period of
12 consecutive calendar months, individuals:
(i) who were directors of such Person on the first day of such
period, or
(ii) whose election or nomination for election to the board of
directors of such Person was recommended or approved by at least
a majority of the directors then still in office who were
directors of such Person on the first day of such period, or
whose election or nomination for election was so approved,
shall cease to constitute a majority of the board of directors of such
Person;
(c) Borrower ceases to be the "beneficial owner" (as defined in Rule
13d-3 under the Securities Exchange Act), directly or indirectly, of one-
hundred percent (100%) of the combined voting power of Alliance's
outstanding Capital Stock ordinarily having the right to vote at an
election of directors; or
(d) Borrower ceases to have the right or ability by voting power,
contract or otherwise to elect or designate for election a majority of the
board of directors of Alliance.
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"CHS" means Code, Hennessy & Simmons Limited Partnership, an Illinois
limited partnership.
"CLOSING DATE" means September 26, 1996.
"CODE" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"COLLATERAL" means all property and interests in property now owned or
hereafter acquired by Borrower or any of its Subsidiaries in or upon which a
security interest, lien or mortgage is granted to the Agent, for the benefit of
the Holders of Secured Obligations, or to the Agent, for the benefit of the
Lenders, whether under the Security Agreement, under any of the other Collateral
Documents or under any of the other Loan Documents.
"COLLATERAL DOCUMENTS" means all agreements, instruments and documents
executed in connection with the Original Credit Agreement, the Restated Credit
Agreement or this Agreement, including, without limitation (a) the Security
Agreement, (b) the Alliance Guaranty, (c) the Intercompany Note, (d) the
Intercompany Security Agreement, (e) the Alliance Security Agreement, (f) the
Pledge Agreement, (g) all security agreements relating to any intellectual
property of the Borrower or Alliance, (h) the Collection Account Agreements, (i)
the Mortgages, and (j) all other security agreements, mortgages, deeds of
trusts, loan agreements, notes, guarantees, subordination agreements, pledges,
powers of attorney, consents, assignments, contracts, fee letters, notices,
leases, financing statements and all other written matter whether heretofore,
now, or hereafter executed by or on behalf of Borrower or any of its
Subsidiaries and delivered to the Agent or any of the Lenders, together, in each
case, with all agreements and documents referred to therein or contemplated
thereby.
"COLLECTION ACCOUNT" means each lock-box and blocked depository account
maintained by Borrower or Alliance, subject to a Collection Account Agreement,
for the collection of Borrower's or Alliance's Receivables, as applicable, and
other proceeds of Collateral.
"COLLECTION ACCOUNT AGREEMENT" means a written agreement among the Borrower
or Alliance, as applicable, the Agent, and, as applicable, each of the banks at
which the Borrower or Alliance, as applicable, maintains a Collection Account.
"COLLECTION ACCOUNT BLOCKAGE DATE" means the date, following the occurrence
and during the continuance of a Default on which the Agent or the Required
Lenders, in the Agent's or the Required Lenders' sole discretion, instruct(s)
any financial institution party to a Collection Account Agreement as described
in the applicable Collection Account Agreement to remit, during the continuance
of such Default, all amounts deposited in the Collection Account to the Agent or
as the Agent shall direct.
"COMMISSION" means the Securities and Exchange Commission and any Person
succeeding to the functions thereof.
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"COMMITMENTS" means the Revolving Credit Commitments and the Term Loan
Commitments.
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form of
Exhibit G delivered to the Agent and each Lender by the Borrower pursuant to the
provisions of this Agreement and covering, among other things, Borrower's
calculation of the Applicable Margins, applicable Commitment Fee, Applicable
Letter of Credit Fee, Borrower's compliance with the financial covenants
contained in Section 6.4 and certain other provisions of this Agreement.
"CONSOLIDATED NET WORTH" is defined in Section 6.4(A) hereof.
"CONTAMINANT" means any waste, pollutant, hazardous substance, toxic
substance, hazardous waste, special waste, petroleum or petroleum-derived
substance or waste, asbestos, polychlorinated biphenyls ("PCBs") and includes
but is not limited to these terms as defined in Environmental, Health or Safety
Requirements of Law.
"CONTINGENT OBLIGATION", as applied to any Person, means (i) any
Contractual Obligation, contingent or otherwise, of that Person with respect to
any Indebtedness of another or other obligation or liability of another,
including, without limitation, any such Indebtedness, obligation or liability of
another directly or indirectly guaranteed, endorsed (otherwise than for
collection or deposit in the ordinary course of business), co-made or discounted
or sold with recourse by that Person, or in respect of which that Person is
otherwise directly or indirectly liable, including Contractual Obligations
(contingent or otherwise) arising through any agreement to purchase, repurchase,
or otherwise acquire such Indebtedness, obligation or liability or any security
therefor, or to provide funds for the payment or discharge thereof (whether in
the form of loans, advances, stock purchases, capital contributions or
otherwise), or to maintain solvency, assets, level of income, or other financial
condition, or to make payment other than for value received (such obligations
under this clause (i) being sometimes referred to as "Accommodation
Obligations") and (ii) any other contingent obligation or liability of such
Person, whether or not reflected in financial statements of such Person as a
liability.
"CONTRACTUAL OBLIGATION", as applied to any Person, means any
provision of any equity or debt securities issued by that Person or any
indenture, mortgage, deed of trust, security agreement, pledge agreement,
guaranty, contract, undertaking, agreement or instrument, in any case in
writing, to which that Person is a party or by which it or any of its properties
is bound, or to which it or any of its properties is subject.
"CONTROLLED GROUP" means the group consisting of (i) any corporation which
is a member of the same controlled group of corporations (within the meaning of
Section 414(b) of the Code) as the Borrower; (ii) a partnership or other trade
or business (whether or not incorporated) which is under common control (within
the meaning of Section 414(c) of the Code) with the Borrower; and (iii) a member
of the same affiliated service group (within the meaning of Section 414(m) of
the Code) as the Borrower, any corporation described in clause (i) above or any
partnership or trade or business described in clause (ii) above.
"CONVERSION/CONTINUATION NOTICE" is defined in Section 2.11(D) hereof.
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<PAGE>
"CORPORATE BASE RATE" means the corporate base rate of interest announced
by First Chicago from time to time, changing when and as said corporate base
rate changes.
"CURE LOAN" is defined in Section 8.2(iii) hereof.
"CURRENT ASSETS" is defined in Section 6.4(A) hereof.
"CUSTOMARY PERMITTED LIENS" means:
(i) Liens (other than Environmental Liens and Liens in favor of the
IRS or the PBGC) with respect to the payment of taxes, assessments or
governmental charges in all cases which are not yet due or which are being
contested in good faith by appropriate proceedings and with respect to which
adequate reserves or other appropriate provisions are being maintained in
accordance with Agreement Accounting Principles;
(ii) statutory Liens of landlords and Liens of suppliers, mechanics,
carriers, materialmen, warehousemen or workmen and other similar Liens imposed
by law created in the ordinary course of business for amounts not yet due or
which are being contested in good faith by appropriate proceedings and with
respect to which adequate reserves or other appropriate provisions are being
maintained in accordance with Agreement Accounting Principles;
(iii) Liens (other than Environmental Liens and Liens in favor of the
IRS or the PBGC) incurred or deposits made in the ordinary course of business in
connection with worker's compensation, unemployment insurance or other types of
social security benefits or to secure the performance of bids, tenders, sales,
contracts (other than for the repayment of borrowed money), surety, appeal and
performance bonds; provided that (A) all such Liens do not in the aggregate
materially detract from the value of the Borrower's or such Subsidiary's assets
or property taken as a whole or materially impair the use thereof in the
operation of the businesses taken as a whole, and (B) all Liens securing bonds
to stay judgments or in connection with appeals that do not secure at any time
an aggregate amount exceeding $1,000,000;
(iv) Liens arising with respect to zoning restrictions, easements,
licenses, reservations, covenants, rights-of-way, utility easements, building
restrictions and other similar charges or encumbrances on the use of real
property which do not interfere with the ordinary conduct of the business of the
Borrower or any of its Subsidiaries;
(v) Liens of attachment or judgment with respect to judgments, writs
or warrants of attachment, or similar process against the Borrower or any of its
Subsidiaries which do not constitute a Default under Section 7.1(h);
(vi) Liens arising from leases or subleases granted to others which do
not interfere in any material respect with the business of the Borrower or any
of its Subsidiaries; and
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<PAGE>
(vii) any interest or title of the lessor in the property subject to
any operating lease entered into by the Borrower or any of its Subsidiaries in
the ordinary course of business.
"DATED RECEIVABLES" is defined in the definition of Eligible Receivables
below.
"DECISION PERIOD" is defined in Section 6.2(G) hereof.
"DECISION RESERVE" is defined in Section 6.2(G) hereof.
"DEFAULT" means an event described in Article VII hereof.
"DESIGNATED PREPAYMENT" is defined in Section 2.5(B)(i)(e).
"DOL" means the United States Department of Labor and any Person succeeding
to the functions thereof.
"EBITA" is defined in Section 6.4(A) hereof.
"EFFECTIVE DATE" means the date on which this Agreement has become
effective in accordance with the provisions of Article IV hereto but not later
than September 30, 1996.
"ELIGIBLE INVENTORY" means Inventory of the Borrower which is held for sale
or lease or furnished under any contract of service by the Borrower which is at
all times and shall continue to be acceptable to the Agent in all respects.
Standards of eligibility may be fixed and revised from time to time by the Agent
in the Agent's reasonable business judgment (which credit judgment shall be
exercised in a manner that is not arbitrary or capricious). In general, without
limiting the foregoing, the following inventory is not Eligible Inventory:
(i) (to the extent not provided for by reserves described in the
definition of the Gross Amount of Eligible Inventory) Inventory which is
obsolete, not in good condition, not either currently usable or currently
saleable in the ordinary course of the Borrower's business or does not meet all
material standards imposed by any Governmental Authority having regulatory
authority over such item of Inventory, its use or its sale;
(ii) Inventory which the Agent determines, in the exercise of its
reasonable discretion (which discretion shall not be exercised in a manner that
is arbitrary or capricious), to be unacceptable due to age, type, category
and/or quantity;
(iii) Inventory consisting of packaging material, supplies, raw
materials and work in process;
(iv) Inventory which (a) is consigned to a third party for sale or (b)
is on consignment from a third party to the Borrower for sale;
(v) Inventory which has been held by the Borrower for more than two
(2) years;
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(vi) Inventory which consists of goods in transit;
(vii) Inventory which is subject to a Lien in favor of any Person
other than the Agent, including, without limitation, Inventory subject to
the Lien in favor of BLN, which shall be deemed at any time to have an
aggregate value equal to ninety percent (90%) of the outstanding principal
balance of the Inventory Note or Substitute Inventory Note, as applicable
(as defined in the BLN Purchase Agreement), at such time;
(viii) Inventory with respect to which the Agent does not have a first
and valid fully perfected security interest;
(ix) Inventory of the Borrower which is not located either (i) on the
Borrower's owned premises in the United States listed on Schedule 2 to the
Security Agreement or (ii) (A) on the Borrower's leased premises in the
United States listed on Schedule 2 to the Security Agreement, (B) in
warehouses or with other bailees in the United States, in each case as
listed on Schedule 2-A to the Security Agreement or (C) in other leased
premises, warehouses or with other bailees in the United States not listed
on Schedule 2-A to the Security Agreement permitted to be established under
the Security Agreement or established in connection with a Permitted
Acquisition, in each case under the immediately preceding clauses (B) and
(C) in connection with which the Agent shall have received bailee and/or
warehousemen's access and lien waiver agreements, as applicable, in each
case in form and substance acceptable to the Agent;
(x) Inventory which is evidenced by a Receivable; and
(xi) Inventory which is not in full conformity with the
representations and warranties made by the Borrower to the Agent with
respect thereto whether contained in this Agreement or the Security
Agreement.
Without limiting the foregoing, (i) Inventory of the Borrower which is acquired
pursuant to a Permitted Acquisition shall not be deemed Eligible Inventory
unless and until the Agent and the Required Lenders, after concluding any due
diligence they reasonably deem necessary, shall be satisfied as to the condition
thereof and that such Inventory would otherwise meet the standards of
eligibility set forth herein (including, without limitation, perfection and
priority of the Agent's security interests in such Inventory) but for the fact
that it was acquired by the Borrower outside of the ordinary course of business
and (ii) Inventory acquired pursuant to such Permitted Acquisition may be deemed
Eligible Inventory from and after such Permitted Acquisition if the foregoing
determinations have been made to the Agent's and the Required Lenders'
satisfaction.
"ELIGIBLE RECEIVABLES" means Receivables created by the Borrower in the
ordinary course of its respective business arising out of the sale of goods or
rendition of services by the Borrower, which Receivables are and at all times
shall continue to be acceptable to the Agent in all respects. Standards of
eligibility may be fixed and revised from time to time by the Agent in the
Agent's reasonable credit judgment (which credit judgment shall be exercised in
a manner that is not arbitrary or capricious). In general, without limiting the
foregoing, the following Receivables are not Eligible Receivables:
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(i) Receivables which remain unpaid sixty (60) days after the original
due date (provided the Borrower continues to offer dating terms to its
account debtors consistent with past practices);
(ii) all Receivables owing by a single Account Debtor (including a
Receivable which remains unpaid fewer than sixty (60) days after the
original due date) if twenty-five percent (25%) of the balance owing by
such Account Debtor to the Borrower, calculated without taking into account
any credit balances of such Account Debtor, remains unpaid sixty (60) days
after the original due date or has otherwise become, or has been determined
by the Agent to be, ineligible;
(iii) Receivables from any single Account Debtor and its Affiliates
which otherwise constitute Eligible Receivables comprising more than
fifteen percent (15%) of all Eligible Receivables;
(iv) Receivables with respect to which the Account Debtor is a
director, officer, employee, Subsidiary or Affiliate of the Borrower;
(v) Receivables with respect to which the Account Debtor is (a) any
federal Governmental Authority, the United States of America, or, in each
case, any department, agency or instrumentality thereof, unless with
respect to any such Account, the Borrower has complied to the Agent's
satisfaction with the provisions of the Federal Assignment of Claims Act or
other applicable statutes, including, without limitation, executing and
delivering to Agent all statements of assignment and/or notification which
are in form and substance acceptable to Agent and which are deemed
necessary by Agent to effectuate the assignment to the Agent of such
Receivables on behalf of the Lenders of such Accounts or (b) any state or
municipal Governmental Authority or any agency or instrumentality thereof;
(vi) Receivables with respect to which the Account Debtor is any state
or municipal Governmental Authority or any agency or instrumentality
thereof;
(vii) Receivables not denominated in U.S. dollars or with respect to
which the Account Debtor is not a resident of the United States unless the
Account Debtor has supplied the Borrower with an irrevocable letter of
credit, issued by a financial institution satisfactory to the Agent,
sufficient to cover such Receivable in form and substance satisfactory to
the Agent;
(viii) Receivables with respect to which the Account Debtor has (a)
asserted a counterclaim, (b) a right of setoff or (c) a receivable owing
from the Borrower or Alliance but only to the extent of such counterclaim,
setoff or receivable;
(ix) Receivables for which the prospect of payment or performance by
the Account Debtor is or will be impaired as determined by the Agent in the
exercise of its reasonable credit judgment (which credit judgment shall not
be exercised in a manner that is arbitrary or capricious);
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(x) Receivables with respect to which the Agent does not have a first
and valid fully perfected and enforceable security interest;
(xi) Receivables with respect to which the Account Debtor is the
subject of bankruptcy or a similar insolvency proceeding or has made an
assignment for the benefit of creditors or whose assets have been conveyed
to a receiver, trustee or assignee for the benefit of creditors;
(xii) Receivables with respect to which the Account Debtor's
obligation to pay the Receivable is conditional upon the Account Debtor's
approval or is otherwise subject to any repurchase obligation or return
right, as with sales made on a bill-and-hold, guaranteed sale, sale-and-
return, sale on approval (except with respect to Receivables in connection
with which Account Debtors are entitled to return Inventory on the basis of
the quality of such Inventory) or consignment basis;
(xiii) Receivables with respect to which the Account Debtor is located
in Minnesota (or any other jurisdiction which adopts a statute or other
requirement with respect to which any Person that obtains business from
within such jurisdiction or is otherwise subject to such jurisdiction's tax
law requiring such Person to file a Business Activity Report or make any
other required filings in a timely manner in order to enforce its claims in
such jurisdiction's courts or arising under such jurisdiction's laws);
provided, however, such Receivables shall nonetheless be eligible if the
Borrower has filed a Business Activity Report (or other applicable report)
with the applicable state office or is qualified to do business in such
jurisdiction and, at the time the Receivable was created, was qualified to
do business in such jurisdiction or had on file with the applicable state
office a current Business Activity Report (or other applicable report);
(xiv) Receivables with respect to which the Account Debtor's
obligation does not constitute its legal, valid and binding obligation,
enforceable against it in accordance with its terms;
(xv) Receivables with respect to which the Borrower has not yet
shipped the applicable goods or performed the applicable service or in
connection with which an invoice has not been issued;
(xvi) Receivables which the Agent, exercising reasonable discretion
(which discretion shall not be exercised in a manner that is arbitrary or
capricious), has determined to be unacceptable to it;
(xvii) any Receivable which is not in conformity with the
representations and warranties made by the Borrower to the Agent with
respect thereto, whether contained in this Agreement or the Security
Agreement;
(xviii) Receivables in connection with which the Borrower has not
complied with all material requirements contained in the charter and by-
laws or other organizational or governing documents of the Borrower and any
law, rule or regulation, or determination of
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an arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon the Borrower or any of its property or to
which the Borrower or any of its property is subject, including, without
limitation, all laws, rules, regulations and orders of any Governmental
Authority or judicial authority relating to truth in lending, billing
practices, fair credit reporting, equal credit opportunity, debt collection
practices and consumer debtor protection, applicable to such Receivable (or
any related contracts) or affecting the collectability of such Receivables;
(xix) Receivables in connection with which the Borrower or any other
party to such Receivable is in default in the performance or observance of
any of the terms thereof in any material respect;
(xx) (y) for the period from January 1 through April 30 in each year,
Receivables for which the due date is greater than thirty (30) days after
the date of the applicable invoice ("DATED RECEIVABLES") to the extent such
Dated Receivables comprise greater than sixty-five percent (65%) of all
Receivables of the Borrower; and (z) for the period from May 1 through
December 31 in each year, Dated Receivables to the extent such Dated
Receivables comprise greater than forty percent (40%) of all Receivables of
the Borrower; and
(xxi) fifty percent (50%) of Receivables consisting of "Post-Closing
Accounts Receivable" subject to collection through the "Lockbox" during the
"Seller Collection Period" (as such terms are defined in Section 8.10 of
the BLN Purchase Agreement) and in any event until ownership and control of
such Lockbox are effectively transferred to the Borrower.
Without limiting the foregoing, (i) Receivables of the Borrower which are
acquired pursuant to a Permitted Acquisition shall not be deemed Eligible
Receivables unless and until the Agent and the Required Lenders, after
concluding any due diligence they reasonably deem necessary, shall be satisfied
as to the quality and creditworthiness thereof and that such Receivables would
otherwise meet the standards of eligibility set forth herein (including, without
limitation, perfection and priority of the Agent's security interests in such
Receivables) but for the fact that they were acquired by the Borrower outside of
the ordinary course of business and (ii) Receivables acquired pursuant to such
Permitted Acquisition may be deemed Eligible Receivables from and after such
Permitted Acquisition if the foregoing determinations have been made to the
Agent's and the Required Lenders' satisfaction.
"ENVIRONMENTAL, HEALTH OR SAFETY REQUIREMENTS OF LAW" means all
Requirements of Law derived from or relating to federal, state and local laws or
regulations relating to or addressing pollution or protection of the
environment, or protection of worker health or safety, including but not limited
to the Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C. (S)(S) 9601 et seq., the Occupational Safety and Health Act of 1970, 29
U.S.C. (S)(S) 651 et seq., the Resource Conservation and Recovery Act of 1976,
42 U.S.C. (S)(S) 6901 et seq., and the Federal Insecticide, Fungicide, and
Rodenticide Act, 7 U.S.C. (S)(S) 136 et seq., in each case including any
amendments thereto, any successor statutes, and any regulations promulgated
thereunder, and any state or local equivalent thereof.
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"ENVIRONMENTAL LIEN" means a lien in favor of any Governmental
Authority for (a) any liability under Environmental, Health or Safety
Requirements of Law, or (b) damages arising from, or costs incurred by such
Governmental Authority in response to, a Release or threatened Release of a
Contaminant into the environment.
"ENVIRONMENTAL PROPERTY TRANSFER ACT" means any applicable requirement
of law that conditions, restricts, prohibits or requires any notification or
disclosure triggered by the closure of any property or the transfer, sale or
lease of any property or deed or title for any property for environmental
reasons, including, but not limited to, any so-called "Industrial Site Recovery
Act" or "Responsible Property Transfer Act."
"EQUIPMENT" means all of the Borrower's and each of its Subsidiaries'
respective present and future (i) equipment, including, without limitation,
machinery, manufacturing, distribution, selling, data processing and office
equipment, assembly systems, tools, molds, dies, fixtures, appliances,
furniture, furnishings, vehicles, vessels, aircraft, aircraft engines, and trade
fixtures, (ii) other tangible personal property (other than the Borrower's and
each such Subsidiary's respective Inventory), and (iii) any and all accessions,
parts and appurtenances attached to any of the foregoing or used in connection
therewith, and any substitutions therefor and replacements, products and
proceeds thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time including (unless the context otherwise requires) any
rules or regulations promulgated thereunder.
"EURODOLLAR ADVANCE" means an Advance which bears interest at the
Eurodollar Rate.
"EURODOLLAR BASE RATE" means, with respect to a Eurodollar Loan for
the relevant Interest Period, the rate determined by the Agent to be the rate at
which deposits in U.S. dollars are offered by First Chicago to first-class banks
in the London interbank market at approximately 11 a.m. (London time) two
Business Days prior to the first day of such Interest Period, in the approximate
amount of First Chicago's relevant Eurodollar Loan and having a maturity
approximately equal to such Interest Period, as adjusted for Reserves.
"EURODOLLAR LOAN" means a Loan, or portion thereof, which bears
interest at the Eurodollar Rate.
"EURODOLLAR RATE" means, with respect to a Eurodollar Loan for the
relevant Interest Period, the Eurodollar Base Rate applicable to such Interest
Period plus the Applicable Eurodollar Margin. The Eurodollar Rate shall be
rounded to the next higher multiple of 1/16 of 1% if the rate is not such a
multiple.
"EXCESS CASH FLOW" means, for any Cash Flow Period, an amount equal to
the Borrower's and its Subsidiaries' consolidated (i) earnings before interest
expense, tax expense, depreciation and amortization for such period, plus (ii)
the net reduction, if any, in Working Capital during such period, minus (iii)
the net increase, if any, in Working Capital during such period, minus (iv)
income taxes, whether paid in cash or accrued, minus (v) Capital Expenditures,
whether paid in cash or
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accrued during such period, minus (vi) Interest Expense for such period, minus
(vii) scheduled amortization of the principal portion of the Term Loan and
scheduled amortization of the principal portion of all other Indebtedness of the
Borrower and its Subsidiaries during such period, minus (viii) the aggregate
amount (without duplication) of (y) cash dividends paid during such period with
respect to Borrower's Capital Stock and (z) Restricted Junior Payments paid
during such period pursuant to Section 6.3(F)(ii), minus (ix) all prepayments of
Loans made (other than ordinary course repayments of the Revolving Loans). All
such amounts shall be calculated assuming that the Borrower has conducted its
business in the ordinary course and in accordance with past practices.
"EXCLUDED PROCEEDS" is defined in Section 6.2(G).
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, an interest rate
per annum 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 for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10 a.m. (Chicago
time) on such day on such transactions received by the Agent from three Federal
funds brokers of recognized standing selected by the Agent in its sole
discretion.
"FEES" is defined in Section 6.4(A) hereof.
"FINANCE SUBSIDIARY" means a wholly-owned Subsidiary of Holdings, the
sole purpose and activity of which is to hold the Subordinated Intercompany
Indebtedness subject to the Holdings Subordination Agreement.
"FIRST CHICAGO" means The First National Bank of Chicago, in its
individual capacity, and its successors.
"FLOATING RATE" means, for any day, a rate per annum equal to (i) the
Alternate Base Rate for such day plus (ii) the Applicable Floating Rate Margin,
changing when and as the Alternate Base Rate changes.
"FLOATING RATE ADVANCE" means an Advance which bears interest at the
Floating Rate.
"FLOATING RATE LOAN" means a Loan, or portion thereof, which bears
interest at the Floating Rate.
"GOVERNMENTAL ACTS" is defined in Section 2.26(A) hereof.
"GOVERNMENTAL AUTHORITY" means any nation or government, any federal,
state, local or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"GROSS AMOUNT OF ELIGIBLE INVENTORY" means Eligible Inventory valued
at the lower of cost determined on a first-in-first-out basis (determined in
accordance with Agreement Accounting
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Principles, consistently applied) or market value less (i) the value of reserves
which have been recorded by the Borrower with respect to obsolete, slow-moving
or excess Inventory and (ii) such other reserves as the Agent elects to
establish in accordance with its reasonable credit judgment (which credit
judgment shall be exercised in a manner that is not arbitrary or capricious).
"GROSS AMOUNT OF ELIGIBLE RECEIVABLES" means the face amount
outstanding under the Eligible Receivables, determined in accordance with
Agreement Accounting Principles, consistently applied less (i) all finance
charges, late fees and other fees that are unearned, (ii) the value of any
accrual which has been recorded by the Borrower with respect to downward price
adjustments, and (iii) such other reserves as the Agent elects to establish in
accordance with its reasonable credit judgment (which credit judgment shall be
exercised in a manner that is not arbitrary or capricious).
"GROSS NEGLIGENCE" means recklessness, the absence of the slightest
care or the complete disregard of consequences. Gross Negligence does not mean
the absence of ordinary care or diligence, or an inadvertent act or inadvertent
failure to act. If the term "gross negligence" is used with respect to the Agent
or any Lender or any indemnitee in any of the other Loan Documents, it shall
have the meaning set forth herein.
"HOLDERS OF SECURED OBLIGATIONS" means the holders of the Secured
Obligations from time to time and shall refer to (i) each Lender in respect of
its Loans, (ii) the Agent in respect of Reimbursement Obligations, (iii) the
Agent and the Lenders in respect of all other present and future obligations and
liabilities of the Borrower, any of its Subsidiaries or Holdings of every type
and description arising under or in connection with this Agreement or any other
Loan Document, (iii) each Indemnitee in respect of the obligations and
liabilities of the Borrower to such Person hereunder, (iv) each Lender (or
affiliate thereof) in respect of all Rate Hedging Obligations of the Borrower to
such Lender (or such affiliate), and (v) their respective successors,
transferees and assigns.
"HOLDINGS" means SCP Pool Corporation, a Delaware corporation
(formerly known as SCP Holding Corp.), and its successors and assigns, including
a debtor-in-possession on behalf of Holdings. From and after the date on which
Holdings changed its name from SCP Holding Corp. to SCP Pool Corporation all
references in this Agreement and each of the other Loan Documents to "Holdings"
or "SCP Holding Corp." shall be references to SCP Pool Corporation (formerly
known as SCP Holding Corp.).
"HOLDINGS' DIVIDENDS" is defined in Section 6.3(F)(i).
"HOLDINGS GUARANTY" means that certain Guaranty entered into between
Holdings and the Agent dated as of May 30, 1996, as the same may from time to
time be amended, modified, supplemented or restated.
"HOLDINGS SUBORDINATED DEBT" means (a) the Convertible Subordinated
Promissory Note of Holdings issued as of December 31, 1993 to the SCP Seller in
the original principal amount of $125,000; and (b) the Orcal Notes,
$1,766,667.00 of which is outstanding as of May 30, 1996.
"HOLDINGS SUBORDINATION AGREEMENT" has the meaning given that term in
Section 6.3(A).
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"INDEBTEDNESS" of any Person means, without duplication, (i) any
indebtedness of such Person, contingent or otherwise, in respect of borrowed
money including all principal, interest, fees and expenses with respect thereto
(whether or not the recourse of the lender is to the whole of the assets of such
Person or only to a portion thereof), or evidenced by bonds, notes, acceptances,
debentures or other instruments or letters of credit (or reimbursement
obligations with respect thereto, including, in the case of the Borrower,
Reimbursement Obligations under the Letters of Credit) or representing the
balance deferred and unpaid of the purchase price of any property (including
pursuant to Capitalized Leases) or services, if and to the extent any of the
foregoing indebtedness would appear as a liability upon a balance sheet of such
Person prepared in accordance with Agreement Accounting Principles (except that
any such balance that constitutes a trade payable and/or an accrued liability
arising in the ordinary course of business shall not be considered
Indebtedness); and (ii) to the extent not otherwise included, (a) interest
accruing after the commencement of any bankruptcy, insolvency, receivership or
similar proceedings and other interest that would have accrued but for the
commencement of such proceedings, (b) any Capitalized Lease Obligations, (c) the
maximum fixed repurchase price of any Redeemable Stock, (d) obligations, whether
or not assumed, secured by Liens or payable out of the proceeds or production
from property now or hereafter owned or acquired by such Person, (e) Contingent
Obligations (exclusive of whether such items would appear upon such balance
sheet) and (f) Rate Hedging Obligations. For purposes of the preceding sentence,
the maximum fixed repurchase price of any Redeemable Stock which does not have a
fixed repurchase price shall be calculated in accordance with the terms of such
Redeemable Stock as if such Redeemable Stock were repurchased on any date on
which Indebtedness shall be required to be determined pursuant to this
Agreement, provided that if such Redeemable Stock is not then permitted to be
repurchased, the repurchase price shall be the book value of such Redeemable
Stock. The amount of Indebtedness of any Person at any date shall be without
duplication (i) the outstanding balance at such date of all unconditional
obligations as described above and the maximum liability of any such Contingent
Obligations at such date and (ii) in the case of Indebtedness of others secured
by a Lien to which the property or assets owned or held by such Person is
subject, the lesser of the fair market value at such date of any asset subject
to a Lien securing the Indebtedness of others and the amount of the Indebtedness
secured.
"INDEMNIFIED MATTERS" is defined in Section 9.7(B) hereof.
"INDEMNITEES" is defined in Section 9.7(B) hereof.
"INTERCOMPANY INDEBTEDNESS" is defined in Section 9.14 hereof.
"INTERCOMPANY LOANS"is defined in Section 6.3(A)(iii) hereof.
"INTERCOMPANY NOTE" is defined in Section 6.3(A)(iii) hereof.
"INTERCOMPANY SECURITY AGREEMENT" is defined in Section 6.3(A)(iii)
hereof.
"INTEREST EXPENSE" is defined in Section 6.4(A) hereof.
"INTEREST EXPENSE COVERAGE RATIO" is defined in Section 6.4(B) hereof.
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"INTEREST PERIOD" means, with respect to a Eurodollar Loan, a period
of one (1), two (2), three (3) or six (6) months commencing on a Business Day
selected by the Borrower pursuant to this Agreement. Such Interest Period shall
end on (but exclude) the day which corresponds numerically to such date one,
two, three or six months thereafter; provided, however, that if there is no such
numerically corresponding day in such next, second, third or sixth succeeding
month, such Interest Period shall end on the last Business Day of such next,
second, third or sixth succeeding month. If an Interest Period would otherwise
end on a day which is not a Business Day, such Interest Period shall end on the
next succeeding Business Day, provided, however, that if said next succeeding
Business Day falls in a new calendar month, such Interest Period shall end on
the immediately preceding Business Day.
"INTEREST RATE AGREEMENTS" is defined in Section 6.3(R) hereof.
"INVENTORY" shall mean any and all goods, including, without
limitation, goods in transit, wheresoever located, whether now owned or
hereafter acquired by the Borrower or Alliance which are held for sale or
lease, furnished under any contract of service or held as raw materials, work in
process or supplies, and all materials used or consumed in the Borrower's or
Alliance's business, and shall include such property the sale or other
disposition of which has given rise to Receivables and which has been returned
to or repossessed or stopped in transit by the Borrower or Alliance.
"INVESTMENT" means, with respect to any Person, (i) any purchase or
other acquisition by that Person of stock, partnership interest, membership,
ownership or other equity interests, notes, debentures or other securities, or
of a beneficial interest in stock, partnership interest, membership, ownership
or other equity interests, notes, debentures or other securities, issued by any
other Person, (ii) any purchase by that Person of all or substantially all of
the assets of a business conducted by another Person, and (iii) any loan,
advance (other than deposits with financial institutions available for
withdrawal on demand, prepaid expenses, accounts receivable, advances to
employees and similar items made or incurred in the ordinary course of business)
or capital contribution by that Person to any other Person, including all
Indebtedness to such Person arising from a sale of property by such Person other
than in the ordinary course of its business.
"IRS" means the Internal Revenue Service and any Person succeeding to
the functions thereof.
"L/C DRAFT" means a draft drawn on the Agent pursuant to a Letter of
Credit.
"L/C INTEREST" shall have the meaning ascribed to such term in Section
2.22.
"L/C OBLIGATIONS" means, without duplication, an amount equal to the
sum of (i) the aggregate of the amount then available for drawing under each of
the Letters of Credit, (ii) the face amounts of all outstanding L/C Drafts
corresponding to the Letters of Credit, which L/C Drafts have been accepted by
the Agent, (iii) the aggregate face amount of all Letters of Credit requested by
the Borrower but not yet issued (unless the request for an unissued Letter of
Credit has been denied) and (iv) the aggregate outstanding amount of all
Reimbursement Obligations at such time.
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"LENDERS" means the lending institutions listed on the signature pages
of this Agreement and their respective successors and assigns.
"LENDING INSTALLATION" means, with respect to a Lender or the Agent,
any office, branch, subsidiary or affiliate of such Lender or the Agent.
"LETTER OF CREDIT" means any letter of credit previously issued under
the Original Credit Agreement or the Restated Credit Agreement or to be issued
by the Agent pursuant to Section 2.21 hereof.
"LIEN" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or security agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, the interest of a vendor or lessor
under any conditional sale, Capitalized Lease or other title retention
agreement).
"LOAN(S)" means, with respect to a Lender, such Lender's portion of
any Advance made pursuant to Section 2.1 or Section 2.2, as applicable, and
collectively all Term Loans and Revolving Loans, whether made or continued as or
converted to Floating Rate Loans or Eurodollar Loans.
"LOAN ACCOUNT" is defined in Section 2.15(F) hereof.
"LOAN DOCUMENTS" means this Agreement, the Notes, the Holdings
Guaranty and the other Collateral Documents and all other documents, instruments
and agreements executed in connection therewith or contemplated thereby, as the
same may be amended, restated or otherwise modified and in effect from time to
time.
"MATERIAL ADVERSE EFFECT" means a material adverse effect upon (a) the
business, condition (financial or otherwise), operations, performance or
properties of the Borrower, or the Borrower and its Subsidiaries, taken as a
whole, (b) the ability of the Borrower or any of its Subsidiaries to perform
their respective obligations under the Loan Documents in any material respect,
or (c) the ability of the Lenders or the Agent to enforce in any material
respect the Obligations or their rights with respect to the Collateral.
"MAXIMUM REVOLVING CREDIT AMOUNT" means, at any particular time, (i)
the lesser of (A) the Aggregate Revolving Loan Commitment at such time and (B)
the Borrowing Base at such time minus (ii) the amount of any Decision Reserve in
effect at such time.
"MORTGAGES" means the mortgages dated as of the Closing Date, executed
by the Borrower in favor of the Agent for the benefit of itself and the Holders
of Secured Obligations, with respect to the owned real property acquired by the
Borrower pursuant to the BLN Acquisition, as the same may from time to time be
amended, modified, supplemented or restated.
"MULTIEMPLOYER PLAN" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Borrower or any
member of the Controlled Group is party to which more than one employer is
obligated to make contributions.
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"NET CASH PROCEEDS" means, with respect to any Asset Sale of any
Person, (a) cash (freely convertible into U.S. dollars) received by such Person
or any Subsidiary of such Person from such Asset Sale (including cash received
as consideration for the assumption or incurrence of liabilities incurred in
connection with or in anticipation of such Asset Sale), after (i) provision for
all income or other taxes measured by or resulting from such Asset Sale, (ii)
payment of all brokerage commissions and other fees and expenses related to such
Asset Sale, (iii) all amounts used to repay Indebtedness secured by a Lien on
any asset disposed of in such Asset Sale or which is or may be required (by the
express terms of the instrument governing such Indebtedness) to be repaid in
connection with such Asset Sale (including payments made to obtain or avoid the
need for the consent of any holder of such Indebtedness), and (iv) deduction of
appropriate amounts to be provided by such Person or a Subsidiary of such Person
as a reserve, in accordance with Agreement Accounting Principles, against any
liabilities associated with the assets sold or disposed of in such Asset Sale
and retained by such Person or a Subsidiary of such Person after such Asset
Sale, including, without limitation, pension and other post-employment benefit
liabilities and liabilities related to environmental matters or against any
indemnification obligations associated with the assets sold or disposed of in
such Asset Sale; and (b) cash payments in respect of any Indebtedness, Capital
Stock, ownership or membership interest or other consideration received by such
Person or any Subsidiary of such Person from such Asset Sale upon receipt of
such cash payments by such Person or such Subsidiary.
"NET DISTRIBUTION" is defined in Section 6.3(F).
"NET INCOME" is defined in Section 6.4(A) hereof.
"NEW TERM LOAN" is defined in Section 2.1(a) hereof.
"NON PRO RATA LOAN" is defined in Section 8.2 hereof.
"NOTES" means the Revolving Notes and the Term Notes.
"NOTICE OF ASSIGNMENT" is defined in Section 12.3(B) hereof.
"OBLIGATIONS" means all Loans, Reimbursement Obligations, obligations,
advances, debts, liabilities, covenants and duties owing by the Borrower to the
Agent, any Lender, any Affiliate of the Agent or any Lender, or any Indemnitee,
of any kind or nature, present or future, arising under this Agreement, the
Notes, the Collateral Documents, or any other Loan Document, whether or not
evidenced by any note, guaranty or other instrument, whether or not for the
payment of money, whether arising by reason of an extension of credit, loan,
guaranty, indemnification, or in any other manner, whether direct or indirect
(including those acquired by assignment), absolute or contingent, due or to
become due, now existing or hereafter arising and however acquired. The term
includes, without limitation, all interest, charges, expenses, fees, attorneys'
fees and disbursements, paralegals' fees (in each case whether or not allowed),
and any other sum chargeable to the Borrower under this Agreement or any other
Loan Document.
"ORCAL NOTES" means the Subordinated Promissory Notes dated February
28, 1995 in the aggregate original principal amount of $2,650,000 issued by
Holdings to Ronald Hetzner.
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"ORIGINAL CLOSING DATE" means December 31, 1993.
"ORIGINAL CREDIT AGREEMENT" means the Credit Agreement dated as of
December 31, 1993 among the Borrower, the Lenders and the Agent as the same was
amended prior to the effective date of the Restated Credit Agreement.
"OTHER TAXES" is defined in Section 2.15(E)(ii) hereof.
"PARTICIPANTS" is defined in Section 12.2(A) hereof.
"PARENT ENTITY" is defined in Section 6.2(M).
"PAYMENT DATE" means the last Business Day of each month.
"PBGC" means the Pension Benefit Guaranty Corporation, or any
successor thereto.
"PERMITTED ACQUISITION" is defined in Section 6.3(G) hereof.
"PERMITTED EXISTING CONTINGENT OBLIGATIONS" means those Contingent
Obligations of the Borrower and its Subsidiaries identified as such on Schedule
1.1.1 to this Agreement.
"PERMITTED EXISTING INDEBTEDNESS" means the Indebtedness of the
Borrower and its Subsidiaries identified as such on Schedule 1.1.2 to this
Agreement.
"PERMITTED EXISTING INVESTMENTS" means those Investments identified as
such on Schedule 1.1.3 to this Agreement.
"PERMITTED EXISTING LIENS" means the Liens on assets of the Borrower
or any of its Subsidiaries identified as such on Schedule 1.1.4 to this
Agreement.
"PERMITTED INVENTORY AND EQUIPMENT SALES" is defined in Section
6.3(B)(iv) hereof.
"PERMITTED PURCHASE MONEY INDEBTEDNESS" means the Indebtedness
permitted pursuant to Section 6.3(A)(ii)(j).
"PERMITTED SUBORDINATED INDEBTEDNESS" means Subordinated Indebtedness
permitted pursuant to Section 6.3(A)(ii)(c) and the Subordinated Intercompany
Indebtedness.
"PERSON" means any natural person, corporation, company, firm, joint
venture, partnership, association, enterprise, trust or other entity or
organization, or any government or political subdivision or any agency,
department or instrumentality thereof.
"PLAN" means an employee pension benefit plan defined in Section 3(3)
of ERISA in respect of which the Borrower or any member of the Controlled Group
is, or within the immediately preceding six (6) years was, an "employer" as
defined in Section 3(5) of ERISA.
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"PLEDGE AGREEMENT" means that certain Pledge Agreement executed by the
Borrower in favor of the Agent for the benefit of itself and the Holders of
Secured Obligations pursuant to which Borrower has pledged all of the Capital
Stock of Alliance as additional security for the Secured Obligations, as the
same may from time to time be amended, modified, supplemented or restated.
"PRO RATA SHARE" means, with respect to any Lender, the percentage obtained
by dividing (A) the sum of such Lender's Term Loans and Revolving Loan
Commitment at such time (in each case, as adjusted from time to time in
accordance with the provisions of this Agreement) by (B) the sum of the
aggregate amount of all of the Term Loans and the Aggregate Revolving Loan
Commitment at such time; provided, however, if all of the Commitments are
terminated pursuant to the terms of this Agreement, then "Pro Rata Share" means
the percentage obtained by dividing (x) the sum of such Lender's Term Loans and
Revolving Loans by (y) the aggregate amount of all Term Loans and Revolving
Loans.
"PURCHASERS" is defined in Section 12.3(A) hereof.
"RATE HEDGING OBLIGATIONS" of a Person means any and all obligations of
such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (i) any and all
agreements, devices or arrangements designed to protect at least one of the
parties thereto from the fluctuations of interest rates, exchange rates or
forward rates applicable to such party's assets, liabilities or exchange
transactions, including, but not limited to, dollar-denominated or cross-
currency interest rate exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements, forward rate
currency or interest rate options, puts and warrants, and (ii) any and all
cancellations, buy backs, reversals, terminations or assignments of any of the
foregoing.
"RATE OPTION" means the Eurodollar Rate or the Floating Rate.
"RECEIVABLE(S)" means and includes all of the Borrower's and Alliance's
presently existing and hereafter arising or acquired accounts, accounts
receivable, and all present and future rights of the Borrower or Alliance as
applicable, to payment for goods sold or leased or for services rendered (except
those evidenced by instruments or chattel paper), whether or not they have been
earned by performance, and all rights in any merchandise or goods which any of
the same may represent, and all rights, title, security and guaranties with
respect to each of the foregoing, including, without limitation, any right of
stoppage in transit.
"REDEEMABLE STOCK" means any Capital Stock which by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, in whole or in part, prior to the maturity of the Obligations
(including any extensions thereof contemplated by this Agreement), or is, by its
terms or upon the happening of any event, redeemable at the option of the holder
thereof, in whole or in part, prior to the maturity of the Obligations
(including any extensions thereof contemplated by this Agreement).
"REGISTER" is defined in Section 12.3(C) hereof.
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"REGULATION D" means Regulation D of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor thereto or other
regulation or official interpretation of said Board of Governors relating to
reserve requirements applicable to member banks of the Federal Reserve System.
"REGULATION G" means Regulation G of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by nonbank, nonbroker lenders for the purpose of purchasing
or carrying margin stock (as defined therein).
"REGULATION T" means Regulation T of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by and to brokers and dealers of securities for the purpose
of purchasing or carrying margin stock (as defined therein).
"REGULATION U" means Regulation U of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks for the purpose of purchasing or carrying margin
stock (as defined therein) applicable to member banks of the Federal Reserve
System.
"REGULATION X" means Regulation X of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by foreign lenders for the purpose of purchasing or carrying
margin stock (as defined therein).
"REIMBURSEMENT OBLIGATION" is defined in Section 2.23 hereof.
"RELEASE" means any release, spill, emission, leaking, pumping, injection,
deposit, disposal, discharge, dispersal, leaching or migration into the indoor
or outdoor environment, including the unrestricted migration of Contaminants
through or in the air, soil, surface water or groundwater.
"RENTALS" is defined in Section 6.4(A) hereof.
"RENTALS RESERVE" is the amount established by the Agent from time to time
approximating three (3) months rent for those leased locations of the Borrower
for which landlord agreements have not been obtained under the terms of the
applicable Security Agreement and where the landlord has a lien which may take
priority over the Lien in favor of the Agent. The Rentals Reserve as of the
Closing Date shall be $385,000.
"REPLACEMENT LENDER" is defined in Section 2.20 hereof.
"REPORTABLE EVENT" means a reportable event as defined in Section 4043 of
ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC 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, however, that a failure to meet
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the minimum funding standards of Section 412 of the Code and of Section 302 of
ERISA shall be a Reportable Event regardless of the issuance of any such waiver
of the notice requirement in accordance with either Section 4043(a) of ERISA or
Section 412(d) of the Code.
"REQUIRED LENDERS" means Lenders whose Pro Rata Shares, in the aggregate,
are equal to or greater than sixty-six and two-thirds percent (66-2/3%);
provided, however, that, in the event any of the Lenders shall have failed to
fund its Pro Rata Share of any Revolving Loan requested by the Borrower which
such Lenders are obligated to fund under the terms of this Agreement and any
such failure has not been cured, then for so long as such failure continues,
"Required Lenders" means Lenders (excluding all Lenders whose failure to fund
their respective Pro Rata Shares of such Revolving Loans have not been so cured)
whose Pro Rata Shares represent at least sixty-six and two-thirds percent (66-
2/3%) of the aggregate Pro Rata Shares of such Lenders; provided, further,
however, that, in the event that the Commitments have been terminated pursuant
to the terms of this Agreement, "Required Lenders" means Lenders (without regard
to such Lenders' performance of their respective obligations hereunder) whose
aggregate ratable shares (stated as a percentage) of the aggregate outstanding
principal balance of all Loans are equal to or greater than sixty-six and two-
thirds percent (66-2/3%).
"REQUIREMENTS OF LAW" means, as to any Person, the charter and by-laws or
other organizational or governing documents of such Person, and any law, rule or
regulation, or determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is subject including,
without limitation, the Securities Act, the Securities Exchange Act, Regulations
G, U and X, ERISA, the Fair Labor Standards Act, the Worker Adjustment and
Retraining Notification Act, the Americans with Disabilities Act of 1990, and
any certificate of occupancy, zoning ordinance, building, environmental or land
use requirement or Permit or environmental, labor, employment, occupational
safety or health law, rule or regulation, including Environmental, Health or
Safety Requirements of Law.
"RESERVES" shall mean the maximum reserve requirement, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) with respect
to "Eurocurrency liabilities" or in respect of any other category of liabilities
which includes deposits by reference to which the interest rate on Eurodollar
Loans is determined or category of extensions of credit or other assets which
includes loans by a non-United States office of any Lender to United States
residents.
"RESTATED CREDIT AGREEMENT" means the Amended and Restated Credit Agreement
dated as of May 30, 1996 among the Borrower, the Lenders and the Agent.
"RESTRICTED JUNIOR PAYMENT" means (i) any dividend or other distribution,
direct or indirect, on account of any shares of any class of Capital Stock of
the Borrower now or hereafter outstanding, except a dividend payable solely in
shares of that class of stock or in any junior class of stock to the holders of
that class, (ii) any redemption, retirement, sinking fund or similar payment,
purchase or other acquisition for value, direct or indirect, of any shares of
any class of Capital Stock of the Borrower or any of its Subsidiaries now or
hereafter outstanding, (iii) any payment or prepayment of principal of, premium,
if any, or interest, fees or other charges on or with respect to, and any
redemption, purchase, retirement, defeasance, sinking fund or similar payment
and any claim for
25
<PAGE>
rescission with respect to any Permitted Subordinated Indebtedness, (iv) any
payment made to redeem, purchase, repurchase or retire, or to obtain the
surrender of, any outstanding warrants, options or other rights to acquire
shares of any class of Capital Stock of the Borrower or any of its Subsidiaries
now or hereafter outstanding (v) any payment of a claim for the rescission of
the purchase or sale of, or for material damages arising from the purchase or
sale of any Permitted Subordinated Indebtedness or any shares of the capital
stock of Holdings, Borrower or any of Borrower's Subsidiaries or of a claim for
reimbursement, indemnification or contribution arising out of or related to any
such claim for damages or rescission and (vi) any payment of management fees to
Holdings, CHS or any of their Affiliates.
"REVOLVING CREDIT AVAILABILITY" means, at any particular time, the amount
by which the Maximum Revolving Credit Amount at such time exceeds the Revolving
Credit Obligations.
"REVOLVING CREDIT OBLIGATIONS" means, at any particular time, the sum of
(i) the outstanding principal amount of the Revolving Loans at such time, plus
(ii) the L/C Obligations at such time.
"REVOLVING LOAN" is defined in Section 2.2.
"REVOLVING LOAN COMMITMENT" means, for each Lender, the obligation of such
Lender to make Revolving Loans and to purchase participations in Letters of
Credit not exceeding the amount set forth on Exhibit B to this Agreement under
the heading "Revolving Loan Commitment" opposite its name thereon or as
identified in the Assignment and Acceptance by which it became a Lender, as such
amount may be modified from time to time pursuant to the terms of this Agreement
or to give effect to any applicable assignment under Section 12.3.
"REVOLVING NOTE" means a promissory note, in substantially the form of
Exhibit C hereto, duly executed by the Borrower and payable to the order of a
Lender in the amount of its Revolving Loan Commitment, including any amendment,
restatement modification, renewal or replacement of such Revolving Note.
"RISK BASED CAPITAL GUIDELINES" is defined in Section 3.2 hereof.
"SCP SELLER" means South Central Pool Supply, Inc., a Louisiana
corporation.
"SECURED OBLIGATIONS" means, collectively, (i) the Obligations and (ii) all
Rate Hedging Obligations owing to one or more of the Lenders or any Affiliate of
one or more of the Lenders.
"SECURITY AGREEMENT" means that certain Amended and Restated Security
Agreement dated as of May 30, 1996, executed by the Borrower in favor of the
Agent for the benefit of the Holders of Secured Obligations, as amended by
Amendment No. 1 thereto of even date herewith, as the same may be further
amended, restated or otherwise modified from time to time.
"SINGLE EMPLOYER PLAN" means a Plan maintained by the Borrower or any
member of the Controlled Group for employees of the Borrower or any member of
the Controlled Group.
26
<PAGE>
"SPECIFIED DEFAULT" means a Default under any of: (a) Section 7.1(a); (b)
Section 7.1(b)(iii) to the extent such Default relates to a breach of Section
6.4; (c) Section 7.1(e); (d) Section 7.1(f); (e) Section 7.1(g); (f) Section
7.1(i); (g) Section 7.1(m); or (h) Section 7.1(n).
"SUBORDINATED INDEBTEDNESS" means any Indebtedness of the Borrower or any
Subsidiary of Borrower the payment of which is subordinated to payment of the
Secured Obligations to the written satisfaction of the Required Lenders,
including, without limitation, the Subordinated Intercompany Indebtedness.
"SUBORDINATED INTERCOMPANY INDEBTEDNESS" has the meaning given to that
term in Section 6.3(A).
"SUBSIDIARY" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(ii) any partnership, association, joint venture or similar business
organization more than 50% of the ownership interests having ordinary voting
power of which shall at the time be so owned or controlled. Unless otherwise
expressly provided, all references herein to a "Subsidiary" shall mean a
Subsidiary of the Borrower.
"TAXES" is defined in Section 2.15(E)(i) hereof.
"TERMINATION DATE" means the earlier of (a) September 26, 2002 and (b) the
date of termination of the Commitments pursuant to Section 2.6 or Section 8.1.
"TERMINATION EVENT" means (i) a Reportable Event with respect to any
Benefit Plan; (ii) the withdrawal of the Borrower or any member of the
Controlled Group from a Benefit Plan during a plan year in which the Borrower or
such Controlled Group member was a "substantial employer" as defined in Section
4001(a)(2) of ERISA or the cessation of operations which results in the
termination of employment of twenty percent (20%) of Benefit Plan participants
who are employees of the Borrower or any member of the Controlled Group; (iii)
the imposition of an obligation on the Borrower or any member of the Controlled
Group under Section 4041 of ERISA to provide affected parties written notice of
intent to terminate a Benefit Plan in a distress termination described in
Section 4041(c) of ERISA; (iv) the institution by the PBGC of proceedings to
terminate a Benefit Plan; (v) any event or condition which might constitute
grounds under Section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, any Benefit Plan; or (vi) the partial or complete
withdrawal of the Borrower or any member of the Controlled Group from a
Multiemployer Plan.
"TERM LOAN" is defined in Section 2.1(a).
"TERM LOAN TERMINATION DATE" means June 30, 2002.
"TERM LOAN COMMITMENT" means, with respect to any Lender, the obligation of
such Lender to make its New Term Loan pursuant to the terms and conditions of
this Agreement, and which shall not exceed the principal amount set forth
opposite such Lender's name under the heading
27
<PAGE>
"Term Loan Commitment" on the signature pages hereof or in the Assignment and
Acceptance by which it became a Lender, as modified from time to time pursuant
to the terms of this Agreement or to give effect to any applicable Assignment
and Acceptance.
"TERM NOTES" means the promissory notes, in substantially the form of
Exhibit D hereto, duly executed by the Borrower and payable to the order of a
Lender in the amount of its Term Loans, including any amendment, restatement
modification, renewal or replacement of such promissory note.
"TRANSACTION DOCUMENTS" means the Loan Documents, the documents evidencing
the Holdings Subordinated Debt, the documents evidencing the Subordinated
Intercompany Indebtedness, the Holdings Subordination Agreement and the
documents, instruments and agreements entered into in connection with the BLN
Acquisition, the Alliance Sale and any Permitted Acquisition, including, without
limitation, in connection with the "SCP Acquisition," the "Aqua Fab
Acquisition," the "Alliance Acquisition," the "Orcal Acquisition" (each as
defined in the Original Credit Agreement) and in connection with the
Acquisitions of certain of the assets or the stock of Aman Enterprises, Inc.,
Pool Mart of Nevada, Inc. and Steven Portnoff Corporation.
"TRANSFEREE" is defined in Section 12.5 hereof.
"TYPE" means, with respect to any Loan, its nature as a Floating Rate Loan
or a Eurodollar Loan.
"UNMATURED DEFAULT" means an event which, but for the lapse of time or the
giving of notice, or both, would constitute a Default.
"UPSTREAM GUARANTEE" is defined in Section 6.3(E).
"WORKING CAPITAL" means, as at any date of determination, the excess, if
any, of (i) the Borrower's consolidated current assets, except cash and Cash
Equivalents, over (ii) the Borrower's consolidated current liabilities, except
current maturities of long-term debt and Revolving Credit Obligations as of such
date and all accrued interest as of such date.
The foregoing definitions shall be equally applicable to both the singular
and plural forms of the defined terms. Any accounting terms used in this
Agreement which are not specifically defined herein shall have the meanings
customarily given them in accordance with generally accepted accounting
principles in existence as of the Original Closing Date. Any references to
Subsidiaries of the Borrower set forth herein shall (i) with respect to
representations and warranties which deal with historical matters be deemed to
include all former Subsidiaries of any seller in connection with any Permitted
Acquisition previously consummated or consummated after the date of this
Agreement; and (ii) shall not be deemed a consent by the Lenders to the
formation of any Subsidiaries by the Borrower.
28
<PAGE>
1.2 Subsidiary References. The existence throughout the Agreement of
references to the Borrower's Subsidiaries is for a matter of convenience only
and shall not in any way be construed as consent by the Agent or any Lender to
the establishment, maintenance or acquisition of any Subsidiary other than
Alliance.
1.3 Supplemental Disclosure. At any time at the request of the Agent and
at such additional times as the Borrower determines, the Borrower shall
supplement each schedule or representation herein or in the other Loan Documents
with respect to any matter hereafter arising which, if existing or occurring at
the date of this Agreement, would have been required to be set forth or
described in such schedule or as an exception to such representation or which is
necessary to correct any information in such schedule or representation which
has been rendered inaccurate thereby. If any such supplement to such schedule or
representation discloses the existence or occurrence of events, facts or
circumstances which are restricted or prohibited by the terms of this Agreement
or any other Loan Documents, such supplement to such schedule or representation
shall not be deemed an amendment thereof unless expressly consented to in
writing by Agent and the Required Lenders, and no such amendments, except as the
same may be consented to in a writing which expressly includes a waiver, shall
be or be deemed a waiver by the Agent or any Lender of any Default disclosed
therein. Any items disclosed in any such supplemental disclosures shall be
included in the calculation of any baskets, limits or similar restrictions
contained in this Agreement or any other Loan Document.
1.4 Amendment and Restatement of Restated Credit Agreement. The Borrower,
the Lenders and the Agent agree that, upon (i) the execution and delivery by
each of the parties hereto of this Agreement and (ii) satisfaction of the
conditions set forth in Sections 4.1 and 4.2, the terms and provisions of the
Restated Credit Agreement shall be and hereby are amended, superseded and
restated in their entirety by the terms and provisions of this Agreement. This
Agreement is not intended to and shall not constitute a novation. All Loans made
and Secured Obligations incurred under the Restated Credit Agreement or under
the Original Credit Agreement which are outstanding on the Effective Date shall
continue as Loans and Obligations under (and shall be governed by the terms of)
this Agreement. Without limiting the foregoing, (a) all Letters of Credit issued
for the account of the Borrower under the Restated Credit Agreement or under the
Original Credit Agreement which remain outstanding on the Effective Date shall
continue as Letters of Credit under (and shall be governed by the terms of) this
Agreement and (b) all Secured Obligations consisting of Rate Hedging Obligations
incurred under Interest Rate Agreements with any Lender or any Affiliate of any
Lender which are outstanding on the Effective Date shall continue as Secured
Obligations under this Agreement and the other Loan Documents.
ARTICLE II: THE CREDITS
2.1. Term Loans. (a) Amount of Term Loans. Prior to the Effective Date,
term loans were previously made to the Borrower under the Original Credit
Agreement in the aggregate principal amount of Twenty Million and no/100 dollars
($20,000,000), the principal balance of which has been reduced to $9,325,554.45
as of the date of this Agreement (such outstanding loans being hereinafter
referred to as the "ORIGINAL TERM LOANS"). Subject to the terms and conditions
set forth in this Agreement, each Lender on the Closing Date hereby severally
and not jointly agrees to make
29
<PAGE>
on the Closing Date, a term loan, in Dollars, to the Borrower in an amount equal
to such Lender's Term Loan Commitment (each individually, a "NEW TERM LOAN" and,
collectively, the "NEW TERM LOANs"). All New Term Loans shall be made by the
Lenders on the Closing Date simultaneously and proportionately to their
respective Pro Rata Shares, it being understood that no Lender shall be
responsible for any failure by any other Lender to perform its obligation to
make any New Term Loan hereunder nor shall the Term Loan Commitment of any
Lender be increased or decreased as a result of any such failure. The Original
Term Loans and the New Term Loans are referred to herein collectively as the
"TERM LOANS."
(b) Borrowing Notice. The Borrower shall deliver to the Agent a
Borrowing Notice, signed by it, on the Closing Date. Such Borrowing Notice
shall specify (i) the aggregate amount of the New Term Loans and (ii)
instructions for the disbursement of the proceeds of the New Term Loans. The
New Term Loans shall initially be Floating Rate Loans and thereafter may be
continued as Floating Rate Loans or converted into Eurodollar Rate Loans in the
manner provided in Section 2.9 and subject to the other conditions and
limitations therein set forth and set forth in Article II. Any Borrowing Notice
given pursuant to this Section 2.1(b) shall be irrevocable.
(c) Making of New Term Loans. Promptly after receipt of the
Borrowing Notice under Section 2.1(b) in respect of the New Term Loans, the
Agent shall notify each Lender by telex or telecopy, or other similar form of
transmission, of the proposed Advance. Each Lender shall deposit an amount equal
to its Pro Rata Share of the New Term Loans with the Agent at its office in
Chicago, Illinois, in immediately available funds, on the Closing Date. Subject
to the fulfillment of the conditions precedent set forth in Sections 4.1 and
4.2, the Agent shall make the proceeds of such amounts received by it available
to the Borrower at the Agent's office in Chicago, Illinois on the Closing Date
and shall disburse such proceeds in accordance with the Borrower's disbursement
instructions set forth in such Borrowing Notice. The failure of any Lender to
deposit the amount described above with the Agent on the Closing Date shall not
relieve any other Lender of its obligations hereunder to make its New Term Loan
on the Closing Date.
(d) Repayment of the Term Loans.
----------------------------
(i) The Term Loans shall be repayable in twenty-four (24)
consecutive quarterly installments payable on the last day of each
calendar quarter commencing September 30, 1996 and continuing thereafter
until June 30, 2002 and a final installment on the Term Loan Termination
Date, and the Term Loans shall be permanently reduced by the amount of
each installment on the date payment thereof is required to be made
hereunder. The installments shall be in the aggregate amount set forth
below:
Installment Date Installment Amount
---------------- ------------------
<TABLE>
<CAPTION>
<S> <C>
September 30, 1996 $ 500,000
December 31, 1996 $ 500,000
March 31, 1997 $ 750,000
June 30, 1997 $ 750,000
September 30, 1997 $ 750,000
</TABLE>
30
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
December 31, 1997 $ 750,000
March 31, 1998 $1,000,000
June 30, 1998 $1,000,000
September 30, 1998 $1,000,000
December 31, 1998 $1,000,000
March 31, 1999 $1,250,000
June 30, 1999 $1,250,000
September 30, 1999 $1,250,000
December 31, 1999 $1,250,000
</TABLE>
31
<PAGE>
Installment Date Installment Amount
---------------- ------------------
<TABLE>
<CAPTION>
<S> <C>
March 31, 2000 $1,250,000
June 30, 2000 $1,250,000
September 30, 2000 $1,250,000
December 31, 2000 $1,250,000
March 31, 2001 $1,250,000
June 30, 2001 $1,250,000
September 30, 2001 $1,250,000
December 31, 2001 $1,250,000
March 31, 2002 $1,250,000
June 30, 2002 $ 750,000
</TABLE>
Notwithstanding the foregoing, the final installment on the Term Loan
Termination Date shall be in the amount of the then outstanding principal
balance of the Term Loans. No installment of any Term Loan shall be
reborrowed once repaid. In addition, the then outstanding principal balance
of all of the Term Loans shall be due and payable on the Termination Date.
(ii) In addition to the scheduled payments on the Term Loans, the
Borrower may make the voluntary prepayments described in Section 2.5(A) for
credit against the scheduled payments on the Term Loans pursuant to Section
2.5(A) and shall make the mandatory prepayments prescribed in Section
2.5(B), for credit against such scheduled payments on the Term Loans
pursuant to Section 2.5(B).
2.2 Revolving Loans. Upon the satisfaction of the conditions
precedent set forth in Sections 4.1 and 4.2 hereof, from and including the date
of this Agreement and prior to the Termination Date, each Lender severally
agrees, on the terms and conditions set forth in this Agreement, to make
revolving loans to the Borrower from time to time in dollars in an amount not to
exceed such Lender's Pro Rata Share of Revolving Credit Availability at such
time (each individually, a "REVOLVING LOAN" and, collectively, the "REVOLVING
LOANS"); provided, however, at no time shall the Revolving Credit Obligations
exceed the Maximum Revolving Credit Amount. Subject to the terms of this
Agreement, the Borrower may borrow, repay and reborrow Revolving Loans at any
time prior to the Termination Date. The Revolving Loans made on the Original
Closing Date shall initially be Floating Rate Loans and thereafter may be
continued as Floating Rate Loans or converted into Eurodollar Loans in the
manner provided in Section 2.11 and subject to the other conditions and
limitations therein set forth and set forth in this Article II. On the
Termination Date, the Borrower shall repay in full the outstanding principal
balance of the Revolving Loans.
2.3 Ratable Loans. Each Advance under Section 2.2 shall consist of
Revolving Loans made by each Lender ratably in proportion to such Lender's
respective Pro Rata Share.
32
<PAGE>
2.4 Rate Options for all Advances. The Advances may be Floating Rate
Advances or Eurodollar Advances, or a combination thereof, selected by the
Borrower in accordance with Section 2.11. The Borrower may select, in
accordance with Section 2.11, Rate Options and Interest Periods applicable to
portions of the Revolving Loans and the Term Loans; provided that there shall be
no more than six (6) Interest Periods in effect with respect to all of the Loans
at any time.
2.5 Optional Payments; Mandatory Prepayments.
----------------------------------------
(A) Optional Payments. Subject to payment of all amounts required
pursuant to Section 3.4, Borrower may from time to time repay or prepay, without
further penalty or premium all or any part of outstanding Floating Rate Advances
and all of any outstanding Eurodollar Rate Advance. Unless the aggregate
outstanding principal balance of the Term Loans is to be prepaid in full,
voluntary prepayments of the Term Loans shall be in an aggregate minimum amount
of $500,000 and integral multiples of $250,000 in excess of that amount. Each
voluntary prepayment of the Term Loan shall be applied to the unpaid
installments of the Term Loan in inverse order of maturity.
(B) Mandatory Prepayments.
----------------------
(i) Mandatory Prepayments of Term Loans.
-----------------------------------
(a) Upon the consummation of any Asset Sale by Holdings, the Borrower
or any Subsidiary of Borrower (other than the Permitted Inventory and Equipment
Sales and the Alliance Sale) the Net Cash Proceeds of which are greater than
$500,000, within three (3) Business Days after Holdings', the Borrower's or any
of its Subsidiaries' (i) receipt of any Net Cash Proceeds from any such Asset
Sale, or (ii) conversion to cash or Cash Equivalents of non-cash proceeds
(whether principal or interest and including securities, release of escrow
arrangements or lease payments) received from any Asset Sale, the Borrower shall
make or cause to be made a mandatory prepayment of the Obligations in an amount
equal to (y) one hundred percent (100%) of such Net Cash Proceeds or such
proceeds converted from non-cash to cash or Cash Equivalents in the case of
Asset Sales other than in connection with the issuance of Capital Stock and (z)
seventy-five percent (75%) of such Net Cash Proceeds or such proceeds converted
from non-cash to cash or Cash Equivalents in the case of Asset Sales consisting
of the issuance of Capital Stock.
.
(b) Within two (2) Business Days after receipt by the Borrower or any
of its Subsidiaries of any proceeds of Indebtedness permitted by Section
6.3(A)(ii)(c), the Borrower shall make or cause to be made a mandatory
prepayment in an amount equal to one-hundred percent (100%) of such proceeds of
Indebtedness.
(c) Simultaneously with the delivery of the annual audited financial
statements required to be delivered pursuant to Section 6.1(a)(iii) for each
Cash Flow Period, the Borrower shall calculate Excess Cash Flow for such Cash
Flow Period and shall make a mandatory prepayment, payable no later than ten
(10) days after such calculation and financial statements are delivered in an
amount equal to fifty percent (50%) of such Excess Cash Flow, provided that such
mandatory prepayment shall not be required if the Borrower's
33
<PAGE>
Leverage Ratio (as defined in Section 6.4(D)) as of the last day of such
Cash Flow Period is less than 4.00 to 1.00.
(d) Nothing in this Section 2.5(B)(i) shall be construed to constitute
the Lenders' consent to any transaction referred to in clause (a) or (b)
above which is not expressly permitted by the terms of this Agreement.
(e) Each mandatory prepayment required by clauses (a), (b) and (c) of
this Section 2.5(B)(i) shall be referred to herein as a "DESIGNATED
PREPAYMENT". Designated Prepayments shall be allocated and applied to the
Obligations as follows:
(I) the amount of each Designated Prepayment shall be applied to
the unpaid installments of the Term Loans in the inverse order of
maturity; and
(II) following the payment in full of the Term Loans, the amount
of each Designated Prepayment shall be applied to repay Revolving
Loans (but shall reduce Revolving Loan Commitments only at the option
of the Required Lenders) and following the payment in full of the
Revolving Loans, the amount of each Designated Prepayment shall be
applied first to interest on the Reimbursement Obligations, then to
principal on the Reimbursement Obligations, then to fees on account of
Letters of Credit and then, to the extent any L/C Obligations are
contingent, deposited with the Agent as cash collateral in respect of
such L/C Obligations.
(f) On the date any Designated Prepayment is received by the Agent,
such prepayment shall be applied (unless the Borrower shall have designated
an alternative application in writing which alternative application shall
be subject to payment of all amounts required pursuant to Section 3.4)
first to Floating Rate Loans and to any Eurodollar Loans maturing on such
date. The Agent shall hold the remaining portion of such Designated
Prepayment as cash collateral in an interest bearing deposit account and
shall apply funds from such account to subsequently maturing Eurodollar
Loans in order of maturity.
(ii) Mandatory Prepayments of Revolving Loans. In addition to repayments
under Section 2.5(B)(i)(e)(II), if the Revolving Credit Obligations are greater
than the Maximum Revolving Credit Amount, the Borrower shall immediately make a
mandatory prepayment of the Obligations in an amount equal to such excess. In
addition, if the Revolving Credit Availability is at any time less than the
amount of contingent L/C Obligations outstanding at any time, the Borrower shall
deposit cash collateral with the Agent in an amount equal to the amount by which
such L/C Obligations exceed such Revolving Credit Availability.
2.6 Reduction of Commitments. The Borrower may permanently reduce the
Aggregate Revolving Loan Commitment in whole, or in part ratably among the
Lenders, in an aggregate minimum amount of $500,000 and integral multiples of
$250,000 in excess of that amount, upon at least three Business Days' written
notice to the Agent, which notice shall specify the amount of any such
reduction; provided, however, that the amount of the Aggregate Revolving Loan
Commitment
34
<PAGE>
may not be reduced below the aggregate principal amount of the outstanding
Revolving Credit Obligations. All accrued commitment fees shall be payable on
the effective date of any termination of the obligations of the Lenders to make
Loans hereunder.
2.7 Method of Borrowing. Not later than 2:00 p.m. (Chicago time) on each
Borrowing Date, each Lender shall make available its Revolving Loan or Revolving
Loans, in funds immediately available in Chicago to the Agent at its address
specified pursuant to Article XIII hereof. The Agent will promptly make the
funds so received from the Lenders available to the Borrower at the Agent's
aforesaid address.
2.8 Determination of Applicable Margins, Applicable Letter of Credit Fee
and Applicable Commitment Fee.
(a) Definitions. As used in this Section 2.8 and in this Agreement,
the following terms shall have the following meanings:
"Applicable Margins", "Applicable Commitment Fee" and "Applicable
Letter of Credit Fee" shall mean the Applicable Floating Rate Margin
and/or Applicable Eurodollar Margin, with respect to Loans and the
Applicable Commitment Fee and/or Applicable Letter of Credit Fee, with
respect to fees payable as the case may be. The Applicable Margins
shall be determined, in accordance with the provisions of this Section
2.8, by reference to the following:
<TABLE>
<CAPTION>
================================================================================
LEVERAGE APPLICABLE APPLICABLE APPLICABLE APPLICABLE
RATIO EURODOLLAR FLOATING RATE COMMITMENT LETTER OF
MARGIN MARGIN FEE CREDIT FEE
================================================================================
<S> <C> <C> <C> <C>
Less than 2.50 to
1.00 1.25% 0.00% 0.375% 1.25%
- --------------------------------------------------------------------------------
Greater than or
equal 2.50 to
1.00 and Less than
3.00 to 1.00 1.50% 0.00% 0.375% 1.50%
- --------------------------------------------------------------------------------
Greater than or
equal 3.00 to
1.00 and Less than
3.50 to 1.00 1.75% 0.25% 0.50% 1.75%
- --------------------------------------------------------------------------------
</TABLE>
35
<PAGE>
<TABLE>
<CAPTION>
================================================================================
LEVERAGE APPLICABLE APPLICABLE APPLICABLE APPLICABLE
RATIO EURODOLLAR FLOATING RATE COMMITMENT LETTER OF
MARGIN MARGIN FEE CREDIT FEE
================================================================================
<S> <C> <C> <C> <C>
Greater than or equal
3.50 to 2.00% 0.50% 0.50% 2.00%
1.00 and Less than
4.00 to 1.00
- --------------------------------------------------------------------------------
Greater than or equal
4.00 to
1.00 and Less than
4.50 to 1.00 2.25% 0.75% 0.50% 2.25%
- --------------------------------------------------------------------------------
Greater than or equal
4.50 to 100 2.50% 1.00% 0.50% 2.50%
================================================================================
</TABLE>
"Leverage Ratio" shall have the meaning ascribed to that term in
Section 6.4(D).
(b) Determination of Applicable Margins, Applicable Letter of Credit
Fee and Applicable Commitment Fee.
(i) The applicable Margin in respect of any loan, the Applicable
Letter of Credit Fee payable under Section 2.25 and the Applicable
Commitment Fee payable under Section 2.15(c) shall be determined by
reference to the tables set forth in paragraph (a) above, as applicable, on
the basis of the Leverage Ratio (calculated (a) with respect to Revolving
Loans, the average of the outstanding amounts as of the last day of each
quarter for the four quarters in the period then ended and (b) with respect
to the Term Loans and other Indebtedness, the outstanding amount as of the
end of the quarter then ended) determined by reference to the most recent
financial statements delivered pursuant to Section 6.1(A)(ii) or
6.1(A)(iii).
(ii) Upon receipt of the financial statements delivered pursuant to
Section 6.1(A)(ii) or Section 6.1(A)(iii), as applicable, the Applicable
Margins for all outstanding Obligations, the Applicable Letter of Credit
Fee and Applicable Commitment Fee shall be adjusted, such adjustment being
effective on the fifth (5th) Business Day after receipt of such financial
statements and the Compliance Certificate to be delivered in connection
therewith; provided, however, if the Borrower shall not have timely
delivered such financial statements in accordance with Section 6.1(A)(ii)
or Section 6.1(A)(iii), as applicable, beginning with the date upon which
such financial statements should have been delivered and continuing until
such financial statements are delivered, it shall be assumed for purposes
of determining the Applicable Margins, the Applicable Commitment Fee and
the Applicable Letter of Credit Fee that the Leverage Ratio was greater
than 4.50 to 1.0.
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(iii) Notwithstanding the foregoing, until the date which is six
months after the Closing Date, it shall be assumed for purposes of
determining the Applicable Margins, Applicable Commitment Fee and
Applicable Letter of Credit Fee that the Leverage Ratio is greater than
4.50 to 1.00.
2.9 Method of Selecting Types and Interest Periods for Advances. The
Borrower shall select the Type of Advance and, in the case of each Eurodollar
Advance, the Interest Period applicable to each Advance from time to time. The
Borrower shall give the Agent irrevocable notice (a "Borrowing Notice") not
later than 11:00 a.m. (Chicago time) on the Borrowing Date of each Floating Rate
Advance and three Business Days before the Borrowing Date for each Eurodollar
Advance, specifying: (i) the Borrowing Date (which shall be a Business Day) of
such Advance; (ii) the aggregate amount of such Advance; (iii) the Type of
Advance selected; and (iv) in the case of each Eurodollar Advance, the Interest
Period applicable thereto. The Borrower shall select Interest Periods so that,
to the best of the Borrower's knowledge, it will not be necessary to prepay all
or any portion of any Eurodollar Advance prior to the last day of the applicable
Interest Period in order to make mandatory prepayments as required pursuant to
the terms hereof. Each Floating Rate Advance shall bear interest from and
including the later of (i) the date of the making of such Advance or (ii) the
Effective Date to (but not including) the date of repayment thereof at the
Floating Rate, changing when and as such Floating Rate changes. All Obligations
(other than Advances) shall bear interest from and including the date such
Obligation is payable under the terms of this Agreement or any other Loan
Document to (but not including) the date of payment thereof at the Floating
Rate, changing when and as such Floating Rate changes. Changes in the rate of
interest on that portion of any Advance maintained as a Floating Rate Loan or
other Obligations which bear interest by reference to the Floating Rate will
take effect simultaneously with each change in the Alternate Base Rate. Each
Eurodollar Advance shall bear interest from and including the later of (i) the
first day of the Interest Period applicable thereto or (ii) the Effective Date
to (but not including) the last day of such Interest Period at the interest rate
determined as applicable to such Eurodollar Advance, changing only with respect
to the Applicable Eurodollar Margin to take effect simultaneously with each
change in the Applicable Eurodollar Margin. Interest with respect to Advances
made prior to the Effective Date shall be calculated and paid in accordance with
the terms of the Restated Credit Agreement for periods prior to the Effective
Date.
2.10 Minimum Amount of Each Advance. Each Eurodollar Advance shall be in
the minimum amount of $1,000,000 (and in multiples of $500,000 if in excess
thereof), and each Floating Rate Advance shall be in the minimum amount of
$300,000 (and in multiples of $75,000 if in excess thereof), provided, however,
that any Floating Rate Advance may be in the amount of the unused Aggregate
Revolving Loan Commitment.
2.11 Method of Selecting Types and Interest Periods for Conversion and
Continuation of Advances.
(A) Right to Convert. The Borrower may elect from time to time, subject to
the provisions of Section 2.4 and Section 2.11, to convert all or any part of a
Loan of any Type into any other Type or Types of Loans; provided that any
conversion of any Eurodollar Advance shall be made on, and only on, the last day
of the Interest Period applicable thereto.
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(B) Automatic Conversion and Continuation. Floating Rate Loans shall
continue as Floating Rate Loans unless and until such Floating Rate Loans are
converted into Eurodollar Loans. Eurodollar Loans shall continue as Eurodollar
Loans until the end of the then applicable Interest Period therefor, at which
time such Eurodollar Loans shall be automatically converted into Floating Rate
Loans unless the Borrower shall have given the Agent notice in accordance with
Section 2.11(D) requesting that, at the end of such Interest Period, such
Eurodollar Loans continue as a Eurodollar Loan.
(C) No Conversion Post-Default or Post-Unmatured Default. Notwithstanding
anything to the contrary contained in Section 2.11(A) or Section 2.11(B), no
Loan may be converted into or continued as a Eurodollar Loan (except with the
consent of the Required Lenders) when any Default or Unmatured Default has
occurred and is continuing.
(D) Conversion/Continuation Notice. The Borrower shall give the Agent
irrevocable notice (a "Conversion/Continuation Notice") of each conversion of a
Floating Rate Loan into a Eurodollar Loan or continuation of a Eurodollar Loan
not later than 11:00 a.m. (Chicago time) three Business Days prior to the date
of the requested conversion or continuation, specifying: (1) the requested date
(which shall be a Business Day) of such conversion or continuation; (2) the
amount and Type of the Loan to be converted or continued; and (3) the amount of
Eurodollar Loan(s) into which such Loan is to be converted or continued and the
duration of the Interest Period applicable thereto.
2.12 Default Rate. After the occurrence and during the continuance of a
Specified Default, at the option of the Agent or at the direction of the
Required Lenders, the interest rate(s) applicable to the Obligations and the
letter of credit fee payable under Section 2.25 with respect to Letters of
Credit shall be increased by two percent (2.0%) above the Floating Rate,
Eurodollar Rate or Applicable Letter of Credit Fee, as applicable.
2.13 Method of Payment. All payments of principal, interest, and fees
hereunder shall be made, without setoff, deduction or counterclaim, in
immediately available funds to the Agent at the Agent's address specified
pursuant to Article XIII, or at any other Lending Installation of the Agent
specified in writing by the Agent to the Borrower, by 2:00 p.m. (Chicago time)
on the date when due and shall be made ratably among the Lenders (unless such
amount is not to be shared ratably in accordance with the terms hereof). Each
payment delivered to the Agent for the account of any Lender shall be delivered
promptly by the Agent to such Lender in the same type of funds which the Agent
received at its address specified pursuant to Article XIII or at any Lending
Installation specified in a notice received by the Agent from such Lender. The
Agent is hereby authorized to charge the account of the Borrower maintained with
First Chicago for each payment of principal, interest, fees and other
Obligations as it becomes due hereunder.
2.14 Notes, Telephonic Notices. Each Lender is hereby authorized to record
the principal amount of each of its Loans and each repayment with respect to its
Loans on the schedule attached to its respective Note; provided, however, that
the failure to so record shall not affect the Borrower's obligations under any
such Note. The Borrower hereby authorizes the Lenders and the Agent to extend
Advances, effect selections of Types of Advances and to transfer funds based on
telephonic notices made by any person or persons the Agent or any Lender in good
faith believes to be acting on behalf of the Borrower. The Borrower agrees to
deliver promptly to the Agent a written
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confirmation signed by an Authorized Officer, if such confirmation is requested
by the Agent or any Lender, of each telephonic notice. If the written
confirmation differs in any material respect from the action taken by the Agent
and the Lenders, (i) the telephonic notice shall govern absent manifest error
and (ii) the Agent or the Lender, as applicable, shall promptly notify the
Authorizing Officer who provided such confirmation of such difference.
2.15 Promise to Pay; Interest and Fees; Interest Payment Dates; Interest
and Fee Basis; Taxes; Loan and Control Accounts.
(A) Promise to Pay. The Borrower hereby unconditionally promises to pay
when due the principal amount of each Loan which is made to it and all other
Obligations incurred by it, and to pay all unpaid interest accrued thereon, in
accordance with the terms of this Agreement and Notes.
(B) Interest Payment Dates. Interest accrued on each Floating Rate Loan
shall be payable on each Payment Date, commencing with the first such date to
occur after the date hereof and at maturity (whether by acceleration or
otherwise). Interest accrued on each Eurodollar Loan shall be payable on the
last day of its applicable Interest Period, on any date on which the Eurodollar
Loan is prepaid, whether by acceleration or otherwise, and at maturity. Interest
accrued on each Eurodollar Loan having an Interest Period longer than three
months shall also be payable on the last day of each three-month interval during
such Interest Period. Interest accrued on the principal balance of all other
Obligations shall be payable in arrears (i) on the last day of each calendar
month, commencing on the first such day following the incurrence of such
Obligation, (ii) upon repayment thereof in full or in part, and (iii) if not
theretofore paid in full, at the time such other Obligation becomes due and
payable (whether by acceleration or otherwise).
(C) Commitment Fees; Closing Fees; Agent's and Arranger's Fees.
(i) The Borrower shall pay to the Agent, for the account of the
Lenders, in accordance with their Pro Rata Shares, a commitment fee
accruing at the rate of the Applicable Commitment Fee per annum from and
after the Closing Date until the Revolving Credit Termination Date on the
average daily outstanding amount by which (A) the maximum amount of the
Aggregate Revolving Loan Commitment exceeds (B) the Revolving Credit
Obligations minus the aggregate of such Borrower's Letter of Credit
Obligations relating to outstanding Commercial Letters of Credit. All such
commitment fees payable under this clause (C) shall be payable quarterly in
arrears on the last calendar day of each March, June, September and
December occurring after the Closing Date and, in addition, on the
Revolving Credit Termination Date. Commitment fees for periods prior to the
Closing Date shall be calculated and paid in accordance with the terms of
the Restated Credit Agreement.
(ii) The Borrower shall pay to the Agent, for the account of the
Lenders, in accordance with their Pro Rata Shares, a closing fee in the
aggregate amount of $200,000, payable on the Closing Date.
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(iii) The Borrower shall pay to the Agent, for the sole account of
the Agent and First Chicago Capital Markets, Inc. (the "ARRANGER") the fees
set forth in the letter agreement among the Borrower, the Agent and the
Arranger dated September 26, 1996, payable at the times and in the amounts
set forth therein.
(D) Interest and Fee Basis. Interest and fees shall be calculated for
actual days elapsed on the basis of a 360-day year. Interest shall be payable
for the day an Obligation is incurred but not for the day of any payment on the
amount paid if payment is received prior to 2:00 p.m. (Chicago time) at the
place of payment. If any payment of principal of or interest on a Loan or any
payment of any other Obligations shall become due on a day which is not a
Business Day, such payment shall be made on the next succeeding Business Day
and, in the case of a principal payment, such extension of time shall be
included in computing interest in connection with such payment.
(E) Taxes.
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(i) Any and all payments by the Borrower hereunder shall be made
free and clear of and without deduction for any and all present or future
taxes, levies, imposts, deductions, charges, or withholdings, and all
liabilities with respect thereto including those arising after the Original
Closing Date as a result of the adoption of or any change in any law,
treaty, rule, regulation, guideline or determination of a Governmental
Authority or any change in the interpretation or application thereof by a
Governmental Authority but excluding, in the case of each Lender and the
Agent, such taxes (including income taxes, franchise taxes and branch
profit taxes) as are imposed on or measured by such Lender's or Agent's, as
the case may be, income by the United States of America or any Governmental
Authority of the jurisdiction under the laws of which such Lender or Agent,
as the case may be, is organized or maintains a Lending Installation (all
such non-excluded taxes, levies, imposts, deductions, charges,
withholdings, and liabilities which the Agent or a Lender determines to be
applicable to this Agreement, the other Loan Documents, the Revolving Loan
Commitments, the Loans or the Letters of Credit being hereinafter referred
to as "Taxes"). If the Borrower shall be required by law to deduct any
Taxes from or in respect of any sum payable hereunder or under the other
Loan Documents to any Lender or the Agent, (i) the sum payable shall be
increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this
Section 2.15(E)) such Lender or Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower shall make such deductions, and (iii) the Borrower
shall pay the full amount deducted to the relevant taxation authority or
other authority in accordance with applicable law. If a withholding tax of
the United States of America or any other Governmental Authority shall be
or become applicable (y) after the Original Closing Date, to such payments
by the Borrower made to the Lending Installation or any other office that a
Lender may claim as its Lending Installation, or (z) after such Lender's
selection and designation of any other Lending Installation, to such
payments made to such other Lending Installation, such Lender shall use
reasonable efforts to make, fund and maintain its Loans through another
Lending Installation of such Lender in another jurisdiction so as to reduce
the Borrower's liability hereunder, if the making, funding or maintenance
of such Loans through such other Lending Installation of such
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Lender does not, in the judgment of such Lender, otherwise adversely affect
such Loans, or obligations under the Revolving Loan Commitments or such
Lender.
(ii) In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges,
or similar levies which arise from any payment made hereunder, from the
issuance of Letters of Credit hereunder, or from the execution, delivery or
registration of, or otherwise with respect to, this Agreement, the other
Loan Documents, the Revolving Loan Commitments, the Loans or the Letters of
Credit (hereinafter referred to as "Other Taxes").
(iii) The Borrower will indemnify each Lender and the Agent for the
full amount of Taxes and Other Taxes (including, without limitation, any
Taxes or Other Taxes imposed by any Governmental Authority on amounts
payable under this Section 2.15(E)) paid by such Lender or the Agent (as
the case may be) and any liability (including penalties, interest, and
expenses) arising therefrom or with respect thereto, whether or not such
Taxes or Other Taxes were correctly or legally asserted. This
indemnification shall be made within thirty (30) days after the date such
Lender or the Agent (as the case may be) makes written demand therefor. A
certificate as to any additional amount payable to any Lender or the Agent
under this Section 2.15(E) submitted to the Borrower and the Agent (if a
Lender is so submitting) by such Lender or the Agent shall show in
reasonable detail the amount payable and the calculations used to determine
such amount and shall, absent manifest error, be final, conclusive and
binding upon all parties hereto. With respect to such deduction or
withholding for or on account of any Taxes and to confirm that all such
Taxes have been paid to the appropriate Governmental Authorities, the
Borrower shall promptly (and in any event not later than thirty (30) days
after receipt) furnish to each Lender and the Agent such certificates,
receipts and other documents as may be required (in the judgment of such
Lender or the Agent) to establish any tax credit to which such Lender or
the Agent may be entitled.
(iv) Within thirty (30) days after the date of any payment of Taxes
or Other Taxes by the Borrower, the Borrower will furnish to the Agent the
original or a certified copy of a receipt evidencing payment thereof.
(v) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower
contained in this Section 2.15(E) shall survive the payment in full of
principal and interest hereunder, the termination of the Letters of Credit
and the termination of this Agreement.
(vi) Without limiting the obligations of the Borrower under this
Section 2.15(E), each Lender that is not created or organized under the
laws of the United States of America or a political subdivision thereof
shall deliver to the Borrower and the Agent on or before the Original
Closing Date, or, if later, the date on which such Lender becomes a Lender
pursuant to Section 12.3 hereof, a true and accurate certificate executed
in duplicate by a duly authorized officer of such Lender, in a form
satisfactory to the Borrower and the Agent, to the effect that such Lender
is capable under the provisions of an applicable tax treaty concluded by
the United States of America (in which case the certificate shall be
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accompanied by two executed copies of Form 1001 of the IRS) or under
Section 1442 of the Code (in which case the certificate shall be
accompanied by two copies of Form 4224 of the IRS) of receiving payments of
interest hereunder without deduction or withholding of United States
federal income tax. Each such Lender further agrees to deliver to the
Borrower and the Agent from time to time a true and accurate certificate
executed in duplicate by a duly authorized officer of such Lender
substantially in a form satisfactory to the Borrower and the Agent, before
or promptly upon the occurrence of any event requiring a change in the most
recent certificate previously delivered by it to the Borrower and the Agent
pursuant to this Section 2.15(E)(vi). Further, each Lender which delivers a
certificate accompanied by Form 1001 of the IRS covenants and agrees to
deliver to the Borrower and the Agent within fifteen (15) days prior to
January 1, 1997, and every third (3rd) anniversary of such date thereafter,
on which this Agreement is still in effect, another such certificate and
two accurate and complete original signed copies of Form 1001 (or any
successor form or forms required under the Code or the applicable
regulations promulgated thereunder), and each Lender that delivers a
certificate accompanied by Form 4224 of the IRS covenants and agrees to
deliver to the Borrower and the Agent within fifteen (15) days prior to the
beginning of each subsequent taxable year of such Lender during which this
Agreement is still in effect, another such certificate and two accurate and
complete original signed copies of IRS Form 4224 (or any successor form or
forms required under the Code or the applicable regulations promulgated
thereunder). Each such certificate shall certify as to one of the
following:
(a) that such Lender is capable of receiving payments of
interest hereunder without deduction or withholding of United States
of America federal income tax;
(b) that such Lender is not capable of receiving payments of
interest hereunder without deduction or withholding of United States
of America federal income tax as specified therein but is capable of
recovering the full amount of any such deduction or withholding from a
source other than the Borrower and will not seek any such recovery
from the Borrower; or
(c) that, as a result of the adoption of or any change in any
law, treaty, rule, regulation, guideline or determination of a
Governmental Authority or any change in the interpretation or
application thereof by a Governmental Authority after the date such
Lender became a party hereto, such Lender is not capable of receiving
payments of interest hereunder without deduction or withholding of
United States of America federal income tax as specified therein and
that it is not capable of recovering the full amount of the same from
a source other than the Borrower.
Each Lender shall promptly furnish to the Borrower and the Agent such
additional documents as may be reasonably required by the Borrower or the
Agent to establish any exemption from or reduction of any Taxes or Other
Taxes required to be deducted or withheld and which may be obtained without
undue expense to such Lender.
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(F) Loan Account. Each Lender shall maintain in accordance with its usual
practice an account or accounts (a "Loan Account") evidencing the Obligations of
the Borrower to such Lender owing to such Lender from time to time, including
the amount of principal and interest payable and paid to such Lender from time
to time hereunder and under the Notes.
(G) Control Account. The Register maintained by the Agent pursuant to
Section 12.3 shall include a control account, and a subsidiary account for each
Lender, in which accounts (taken together) shall be recorded (i) the date and
amount of each Advance made hereunder, the type of Loan comprising such Advance
and any Interest Period applicable thereto, (ii) the effective date and amount
of each assignment and acceptance delivered to and accepted by it and the
parties thereto pursuant to Section 12.3, (iii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder or under the Notes, (iv) the amount of any sum received by the
Agent from the Borrower hereunder and each Lender's share thereof, and (v) all
other appropriate debits and credits as provided in this Agreement, including,
without limitation, all fees, charges, expenses and interest.
(H) Entries Binding. The entries made in the Register and each Loan
Account shall be conclusive and binding for all purposes, absent manifest error,
unless the Borrower objects to information contained in the Register and each
Loan Account within thirty (30) days of the Borrower's receipt of such
information.
2.16 Notification of Advances, Interest Rates, Prepayments and Aggregate
Revolving Loan Commitment Reductions. Promptly after receipt thereof, the Agent
will notify each Lender of the contents of each Aggregate Revolving Loan
Commitment reduction notice, Borrowing Notice, Continuation/Conversion Notice,
and repayment notice received by it hereunder. The Agent will notify each Lender
of the interest rate applicable to each Eurodollar Loan promptly upon
determination of such interest rate and will give each Lender prompt notice of
each change in the Alternate Base Rate.
2.17 Lending Installations. Each Lender may book its Loans at any Lending
Installation selected by such Lender and may change its Lending Installation
from time to time. All terms of this Agreement shall apply to any such Lending
Installation and the Notes shall be deemed held by each Lender for the benefit
of such Lending Installation. Each Lender may, by written or facsimile notice to
the Agent and the Borrower, designate a Lending Installation through which Loans
will be made by it and for whose account Loan payments are to be made.
2.18 Non-Receipt of Funds by the Agent. Unless the Borrower or a Lender,
as the case may be, notifies the Agent prior to the date on which it is
scheduled to make payment to the Agent of (i) in the case of a Lender, the
proceeds of a Loan or (ii) in the case of the Borrower, a payment of principal,
interest or fees to the Agent for the account of the Lenders, that it does not
intend to make such payment, the Agent may assume that such payment has been
made. The Agent may, but shall not be obligated to, make the amount of such
payment available to the intended recipient in reliance upon such assumption. If
such Lender or the Borrower, as the case may be, has not in fact made such
payment to the Agent, the recipient of such payment shall, on demand by the
Agent, repay to the Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the date such
amount was so made available by the Agent until the date
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the Agent recovers such amount at a rate per annum equal to (i) in the case of
payment by a Lender, the Federal Funds Effective Rate for such day or (ii) in
the case of payment by the Borrower, the interest rate applicable to the
relevant Loan.
2.19 Termination Date. This Agreement shall be effective until the
Termination Date. Notwithstanding the termination of this Agreement on the
Termination Date, until all of the Obligations (other than contingent indemnity
obligations) shall have been fully and indefeasibly paid and satisfied, all
financing arrangements among the Borrower and the Lenders shall have been
terminated (other than under Interest Rate Agreements or other agreements with
respect to Rate Hedging Obligations) and all of the Letters of Credit shall have
expired, been canceled or terminated, all of the rights and remedies under this
Agreement and the other Loan Documents shall survive and the Agent shall be
entitled to retain its security interest in and to all existing and future
Collateral for the benefit of itself and the Holders of Secured Obligations.
2.20 Replacement of Certain Lenders. In the event a Lender ("Affected
Lender") shall have: (i) failed to fund its Pro Rata Share of any Advance
requested by the Borrower which such Lender is obligated to fund under the terms
of this Agreement and which failure has not been cured, (ii) requested
compensation from the Borrower under Sections 2.15(E), 3.1 or 3.2 to recover
Taxes, Other Taxes or other additional costs incurred by such Lender which are
not being incurred generally by the other Lenders, (iii) delivered a notice
pursuant to Section 3.3 claiming that such Lender is unable to extend Eurodollar
Loans to the Borrower for reasons not generally applicable to the other Lenders
or (iv) has invoked Section 9.2, then, in any such case, the Borrower or the
Agent may make written demand on such Affected Lender (with a copy to the Agent
in the case of a demand by the Borrower and a copy to the Borrower in the case
of a demand by the Agent) for the Affected Lender to assign, and such Affected
Lender shall use its best efforts to assign pursuant to one or more duly
executed assignment and acceptance agreements in substantially the form of
Exhibit E five (5) Business Days after the date of such demand, to one or more
financial institutions which complies with the provisions of Section 12.3(A)
(and, if selected by the Borrower is reasonably acceptable to the Agent) which
the Borrower or the Agent, as the case may be, shall have engaged for such
purpose ("Replacement Lender"), all of such Affected Lender's rights and
obligations under this Agreement and the other Loan Documents (including,
without limitation, its Revolving Loan Commitment, all Loans owing to it, all of
its participation interests in existing Letters of Credit, and its obligation to
participate in additional Letters of Credit hereunder) in accordance with
Section 12.3. The Agent hereby agrees, upon the occurrence of such events with
respect to an Affected Lender and upon the written request of the Borrower, to
use its reasonable efforts to obtain the commitments from one or more financial
institutions to act as a Replacement Lender. The Agent is hereby authorized to
execute one or more of such assignment agreements as attorney-in-fact for any
Affected Lender failing to execute and deliver the same within five (5) Business
Days after the date of such demand. Further, with respect to such assignment the
Affected Lender shall have concurrently received, in cash, all amounts due and
owing to the Affected Lender hereunder or under any other Loan Document,
including, without limitation, the aggregate outstanding principal amount of the
Loans owed to such Lender, together with accrued interest thereon through the
date of such assignment, amounts payable under Sections 2.15(E), 3.1, and 3.2
with respect to such Affected Lender and compensation payable under Section
2.15(C) in the event of any replacement of any Affected Lender under clause (ii)
or clause (iii) of this Section 2.20; provided, upon such Affected Lender's
replacement, such Affected Lender shall cease to be a party
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hereto but shall continue to be entitled to the benefits of Sections 2.15(E),
3.1, 3.2, 3.4, and 9.7, as well as to any fees accrued for its account hereunder
and not yet paid, and shall continue to be obligated under Section 10.8. Upon
the replacement of any Affected Lender pursuant to this Section 2.20, the
provisions of Section 8.2 shall continue to apply with respect to Advances which
are then outstanding with respect to which the Affected Lender failed to fund
its Pro Rata Share and which failure has not been cured.
2.21 Letter of Credit Facility. Pursuant to the Original Credit Agreement
or the Restated Credit Agreement the Agent may have previously issued and, upon
receipt of duly executed applications therefor, and such other documents,
instructions and agreements as the Agent may require, and subject to the
provisions of Article IV, the Agent will hereafter issue letters of credit for
the account of the Borrower, on terms as are satisfactory to the Agent;
provided, however, that no Letter of Credit will be issued for the account of
the Borrower by the Agent if on the date of issuance, before or after taking
such Letter of Credit into account, (i) the Revolving Credit Obligations at such
time would exceed the Maximum Revolving Credit Amount at such time or (ii) the
aggregate outstanding amount of the L/C Obligations exceeds $7,500,000; and
provided, further, that no Letter of Credit shall be issued which has an
expiration date later than the date which is five (5) Business Days immediately
preceding the Termination Date.
2.22 Letter of Credit Participation. Immediately upon the issuance of
each Letter of Credit by the Agent hereunder or under the Original Credit
Agreement or the Restated Credit Agreement, as applicable, each Lender shall be
deemed to have automatically, irrevocably and unconditionally purchased and
received from the Agent an undivided interest and participation in and to such
Letter of Credit, the obligations of the Borrower in respect thereof, and the
liability of the Agent thereunder (collectively, an "L/C Interest") in an amount
equal to the amount available for drawing under such Letter of Credit multiplied
by such Lender's Pro Rata Share. The Agent will notify each Lender promptly upon
presentation to it of an L/C Draft or upon any other draw under a Letter of
Credit. On or before the Business Day on which the Agent makes payment of each
such L/C Draft or, in the case of any other draw on a Letter of Credit, on
demand of the Agent, each Lender shall make payment to the Agent, in immediately
available funds on an amount equal to such Lender's pro rata share of the amount
of such payment or draw. The obligation of each Lender to reimburse the Agent
under this Section 2.22 shall be unconditional, continuing, irrevocable and
absolute. In the event that any Lender fails to make payment to the Agent of any
amount due under this Section 2.22, the Agent shall be entitled to receive,
retain and apply against such obligation the principal and interest otherwise
payable to such Lender hereunder until the Agent receives such payment from such
Lender or such obligation is otherwise fully satisfied; provided, however, that
nothing contained in this sentence shall relieve such Lender of its obligation
to reimburse the Agent for such amount in accordance with this Section 2.22.
2.23 Reimbursement Obligation. The Borrower agrees unconditionally,
irrevocably and absolutely to pay immediately to the Agent (which payment shall
be for the account of the Lenders to the extent that the Lenders have funded
their participation in the applicable Letter of Credit otherwise for the account
of the Agent as the issuer of the Letter of Credit) the amount of each advance
which may be drawn under or pursuant to a Letter of Credit issued for its
account or an L/C Draft related thereto (such obligation of the Borrower to
reimburse the Agent for an advance made under a Letter of Credit or L/C Draft
being hereinafter referred to as a "Reimbursement Obligation"
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with respect to such Letter of Credit or L/C Draft). If the Borrower at any time
fails to repay a Reimbursement Obligation pursuant to this Section 2.23, the
Borrower shall be deemed to have elected to borrow a Revolving Loan from the
Lenders, as of the date of the advance giving rise to the Reimbursement
Obligation equal in amount to the amount of the unpaid Reimbursement Obligation.
Such Revolving Loan shall be made as of the date of the payment giving rise to
such Reimbursement Obligation, automatically, without notice and without any
requirement to satisfy the conditions precedent otherwise applicable to an
Advance of Revolving Loans if Borrower shall have failed to make such payment to
the Agent prior to such time. Such Revolving Loans shall constitute a Floating
Rate Advance, the proceeds of which Advance shall be used to repay such
Reimbursement Obligation. If, for any reason, the Borrower fails to repay a
Reimbursement Obligation on the day such Reimbursement Obligation arises and,
for any reason, the Lenders are unable to make or have no obligation to make a
Revolving Loan, then such Reimbursement Obligation shall bear interest from and
after such day, until paid in full, at the interest rate applicable to a
Floating Rate Advance.
2.24 Cash Collateral. Notwithstanding anything to the contrary herein or
in any application for a Letter of Credit, after the occurrence and during the
continuance of Default, the Borrower shall, upon the Agent's demand, deliver to
the Agent for the benefit of the Lenders, cash, or other collateral of a type
satisfactory to the Required Lenders, having a value, as determined by such
Lenders, equal to the aggregate outstanding L/C Obligations. In addition, to the
extent the Maximum Revolving Credit Amount is at any time less than the amount
of contingent L/C Obligations outstanding at any time, the Borrower shall
deposit cash collateral with the Agent in an amount equal to the amount by which
such L/C Obligations exceed such Maximum Revolving Credit Amount. Any such
collateral shall be held by the Agent in a separate account appropriately
designated as a cash collateral account in relation to this Agreement and the
Letters of Credit and retained by the Agent for the benefit of the Lenders as
collateral security for the Borrower's obligations in respect of this Agreement
and each of the Letters of Credit and L/C Drafts. Such amounts shall be applied
to reimburse the Agent for drawings or payments under or pursuant to Letters of
Credit or L/C Drafts, or if no such reimbursement is required, to payment of
such of the other Obligations as the Agent shall determine. If no Default shall
be continuing, amounts remaining in any cash collateral account established
pursuant to this Section 2.24 which are not to be applied to reimburse the Agent
for amounts actually paid or to be paid by the Agent in respect of a Letter of
Credit or L/C Draft, shall be returned to the Borrower (after deduction of the
Agent's expenses incurred in connection with such cash collateral account).
2.25 Letter of Credit Fees. The Borrower agrees to pay (i) monthly, in
arrears, to the Agent for the ratable benefit of the Lenders, except as set
forth in Section 8.2, a letter of credit fee in the amount of the Applicable
Letter of Credit Fee rate per annum on the aggregate amount available for
drawing under all of the standby Letters of Credit and (ii) to the Agent for the
benefit of the Agent, as issuing bank, all customary fees and other issuance,
amendment, negotiation and presentment expenses and related charges in
connection with the issuance, amendment, presentation of L/C Drafts, and the
like customarily charged by the Agent with respect to standby and commercial
Letters of Credit, including, without limitation standard commissions with
respect to commercial Letters of Credit, payable at the time of invoice of such
amounts.
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2.26 Indemnification; Exoneration. (a) In addition to amounts payable as
elsewhere provided in this Agreement, the Borrower hereby agrees to protect,
indemnify, pay and save harmless the Agent and each Lender from and against any
and all liabilities and costs which the Agent or any Lender may incur or be
subject to as a consequence, direct or indirect, of (i) the issuance of any
Letter of Credit other than, in the case of the issuer thereof, as a result of
its Gross Negligence or willful misconduct, as determined by the final judgment
of a court of competent jurisdiction, or (ii) the failure of the issuer of such
Letter of Credit to honor a drawing under such Letter of Credit as a result of
any act or omission, whether rightful or wrongful, of any present or future de
jure or de facto Governmental Authority (all such acts or omissions herein
called "Governmental Acts").
(b) As among the Borrower, the Lenders and the Agent, the Borrower assumes
all risks of the acts and omissions of, or misuse of such Letter of Credit by,
the beneficiary of any Letter of Credit. In furtherance and not in limitation of
the foregoing, subject to the provisions of the Letter of Credit applications
and Letter of Credit reimbursement agreements executed by the Borrower at the
time of request for any Letter of Credit, the issuer of the Letter of Credit,
the Agent and the Lenders shall not be responsible (in the absence of Gross
Negligence or willful misconduct in connection therewith, as determined by the
final judgment of a court of competent jurisdiction): (i) for the form,
validity, sufficiency, accuracy, genuineness or legal effect of any document
submitted by any party in connection with the application for and issuance of
the Letters of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) for the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason; (iii) for failure of the beneficiary of a
Letter of Credit to comply duly with conditions required in order to draw upon
such Letter of Credit; (iv) for errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph, telex, or
other similar form of teletransmission or otherwise; (v) for errors in
interpretation of technical trade terms; (vi) for any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under any Letter of Credit or of the proceeds thereof; (vii) for the
misapplication by the beneficiary of a Letter of Credit of the proceeds of any
drawing under such Letter of Credit; and (viii) for any consequences arising
from causes beyond the control of the Agent, the issuer of the Letter of Credit
and the Lenders including, without limitation, any Governmental Acts. None of
the above shall affect, impair, or prevent the vesting of any of the Letter of
Credit issuers' rights or powers under this Section 2.26.
(c) In furtherance and extension and not in limitation of the specific
provisions hereinabove set forth, any action taken or omitted by the Letter of
Credit issuer under or in connection with Letters of Credit issued on behalf of
the Borrower or any related certificates shall not, in the absence of Gross
Negligence or willful misconduct, as determined by the final judgment of a court
of competent jurisdiction, put the Letter of Credit issuer, the Agent or any
Lender under any resulting liability to the Borrower or relieve the Borrower of
any of its obligations hereunder to any such Person.
(d) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 2.26 shall survive the payment
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in full of principal and interest hereunder, the termination of the Letters of
Credit and the termination of this Agreement.
ARTICLE III: CHANGE IN CIRCUMSTANCES
-------------------------------------
3.1 Yield Protection. If any law or any governmental or quasi-
governmental rule, regulation, policy, guideline or directive (whether or not
having the force of law) adopted after the Original Closing Date and having
general applicability to all banks within the jurisdiction in which such Lender
operates (excluding, for the avoidance of doubt, the effect of and phasing in of
capital requirements or other regulations or guidelines passed prior to the
Original Closing Date), or any interpretation or application thereof by any
Governmental Authority charged with the interpretation or application thereof,
or the compliance of any Lender therewith,
(i) subjects any Lender or any applicable Lending Installation to any
tax, duty, charge or withholding on or from payments due from the Borrower
(excluding federal taxation of the overall net income of any Lender or
applicable Lending Installation), or changes the basis of taxation of
payments to any Lender in respect of its Loans, its L/C Interests, the
Letters of Credit or other amounts due it hereunder, or
(ii) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit extended
by, any Lender or any applicable Lending Installation (other than reserves
and assessments taken into account in determining the interest rate
applicable to Eurodollar Loans) with respect to its Loans, L/C Interests or
the Letters of Credit, or
(iii) imposes any other condition the result of which is to increase
the cost to any Lender or any applicable Lending Installation of making,
funding or maintaining the Loans, the L/C Interests or the Letters of
Credit or reduces any amount received by any Lender or any applicable
Lending Installation in connection with Loans or Letters of Credit, or
requires any Lender or any applicable Lending Installation to make any
payment calculated by reference to the amount of Loans or L/C Interests
held or interest received by it or by reference to the Letters of Credit,
by an amount deemed material by such Lender;
and the result of any of the foregoing is to increase the cost to that Lender of
making, renewing or maintaining its Loans, L/C Interests or Letters of Credit or
to reduce any amount received under this Agreement, then, within 15 days after
receipt by the Borrower of written demand by such Lender pursuant to Section
3.5, the Borrower shall pay such Lender that portion of such increased expense
incurred or reduction in an amount received which such Lender determines is
attributable to making, funding and maintaining its Loans, L/C Interests,
Letters of Credit and its Revolving Loan Commitment.
3.2 Changes in Capital Adequacy Regulations. If a Lender determines (i)
the amount of capital required or expected to be maintained by such Lender, any
Lending Installation of such Lender or any corporation controlling such Lender
is increased as a result of a "Change" (as defined below), and (ii) such
increase in capital will result in an increase in the cost to such Lender of
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maintaining its Loans, L/C Interests, the Letters of Credit or its obligation to
make Loans hereunder, then, within 15 days after receipt by the Borrower of
written demand by such Lender pursuant to Section 3.5, the Borrower shall pay
such Lender the amount necessary to compensate for any shortfall in the rate of
return on the portion of such increased capital which such Lender determines is
attributable to this Agreement, its Loans, its L/C Interests, the Letters of
Credit or its obligation to make Loans hereunder (after taking into account such
Lender's policies as to capital adequacy). "Change" means (i) any change after
the Original Closing Date in the "Risk-Based Capital Guidelines" (as defined
below) excluding, for the avoidance of doubt, the effect of any phasing in of
such Risk Based Capital Guidelines or any other capital requirements passed
prior to the Original Closing Date, or (ii) any adoption of or change in any
other law, governmental or quasi-governmental rule, regulation, policy,
guideline, interpretation, or directive (whether or not having the force of law)
after the Original Closing Date and having general applicability to all banks
and financial institutions within the jurisdiction in which such Lender operates
which affects the amount of capital required or expected to be maintained by any
Lender or any Lending Installation or any corporation controlling any Lender.
"Risk-Based Capital Guidelines" means (i) the risk-based capital guidelines in
effect in the United States on the Original Closing Date, including transition
rules, and (ii) the corresponding capital regulations promulgated by regulatory
authorities outside the United States implementing the July 1988 report of the
Basle Committee on Banking Regulation and Supervisory Practices Entitled
"International Convergence of Capital Measurements and Capital Standards,"
including transition rules, and any amendments to such regulations adopted prior
to the Original Closing Date.
3.3 Availability of Types of Advances. If (i) any Lender determines that
maintenance of its Eurodollar Loans at a suitable Lending Installation would
violate any applicable law, rule, regulation or directive, whether or not having
the force of law, or (ii) the Required Lenders determine that (x) deposits of a
type and maturity appropriate to match fund Eurodollar Advances are not
available or (y) the interest rate applicable to a Type of Advance does not
accurately reflect the cost of making or maintaining such an Advance, then the
Agent shall suspend the availability of the affected Type of Advance and, in the
case of any occurrence set forth in clause (i) require any Advances of the
affected Type to be repaid.
3.4 Funding Indemnification. If any payment of a Eurodollar Advance
occurs on a date which is not the last day of the applicable Interest Period,
whether because of acceleration, prepayment, or otherwise, or a Eurodollar
Advance is not made on the date specified by the Borrower for any reason other
than default by the Lenders, the Borrower will indemnify each Lender for any
loss or cost incurred by it resulting therefrom, including, without limitation,
any loss or cost in liquidating or employing deposits acquired to fund or
maintain the Eurodollar Advance.
3.5 Lender Statements; Survival of Indemnity. To the extent reasonably
possible, each Lender shall designate an alternate Lending Installation with
respect to its Eurodollar Loans to reduce any liability of the Borrower to such
Lender under Sections 3.1 and 3.2 or to avoid the unavailability of a Type of
Advance under Section 3.3, so long as such designation is not disadvantageous to
such Lender. Each Lender requiring compensation pursuant to Section 2.15(E) or
to this Article III shall use its best efforts to notify the Borrower and the
Agent in writing of any Change, law, policy, rule, guideline or directive giving
rise to such demand for compensation not later than ninety (90) days following
the date upon which the responsible account officer of such
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Lender knows or should have known of such Change, law, policy, rule, guideline
or directive. Any demand for compensation pursuant to this Article III shall be
in writing and shall state the amount due, if any, under Section 3.1, 3.2 or 3.4
and shall set forth in reasonable detail the calculations upon which such Lender
determined such amount. Such written demand shall be rebuttably presumed correct
for all purposes. Notwithstanding anything in this Agreement to the contrary,
the Borrower shall not be obligated to pay any amount or amounts under Section
2.15(E) or this Article III to the extent such amount or amounts result from a
Change, law, policy, rule, guideline or directive which took effect more than
120 days prior to the date of delivery of the notice described above.
Determination of amounts payable under such Sections in connection with a
Eurodollar Loan shall be calculated as though each Lender funded its Eurodollar
Loan through the purchase of a deposit of the type and maturity corresponding to
the deposit used as a reference in determining the Eurodollar Rate applicable to
such Loan, whether in fact that is the case or not. The obligations of the
Borrower under Sections 3.1, 3.2 and 3.4 shall survive payment of the
Obligations and termination of this Agreement.
ARTICLE IV: CONDITIONS PRECEDENT
---------------------------------
4.1 Conditions Precedent to Effectiveness of this Agreement. The
effectiveness of this Agreement and the obligation of each Lender to make any
Loan requested to be made by it from and after the Effective Date, and the
obligation of the Agent to issue and of each Lender to participate in any Letter
of Credit from and after the Effective Date, shall be subject to satisfaction of
the following conditions precedent:
(a) Documents. The delivery by the Borrower to the Agent of each of the
following, with sufficient copies for the Lenders:
(1) Copies of the Certificate of Incorporation of the Borrower,
together with all amendments, and a certificate of good standing, both
certified by the appropriate governmental officer in its jurisdiction
of incorporation;
(2) Copies, certified by the Secretary or Assistant Secretary of
the Borrower, of its By-Laws and of its Board of Directors'
resolutions (and resolutions of other bodies, if any are deemed
necessary by counsel for any Lender) authorizing the execution of the
Loan Documents;
(3) An incumbency certificate, executed by the Secretary or
Assistant Secretary of the Borrower, which shall identify by name and
title and bear the signature of the officers of the Borrower
authorized to sign the Loan Documents and to make borrowings
hereunder, upon which certificate the Lenders shall be entitled to
rely until informed of any change in writing by the Borrower;
(4) A certificate, signed by the chief financial officer of the
Borrower, stating that on Effective Date no Default or Unmatured
Default has occurred and is continuing;
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(5) A written opinion of the Borrower's counsel, addressed to
the Lenders in form and substance acceptable to the Agent, the Lenders
and their respective counsel;
(6) Substituted and amended Notes payable to the order of each of
the Lenders;
(7) Amendment No. 1 to the Security Agreement;
(8) The BLN Intercreditor Agreement, duly executed by all
parties thereto, in form and substance acceptable to the Agent, the
Lenders and their respective counsel; and
(9) Such other documents as the Agent or any Lender or its
counsel may have reasonably requested, including, without limitation,
all of the documents reflected on the List of Closing Documents
attached as Exhibit J to this Agreement (unless designated thereon to
be a document which was previously delivered or to be received after
the Effective Date).
(b) No Legal Impediments. No law, regulation, order, judgment or decree
of any Governmental Authority shall, and the Agent shall not have
received any notice that litigation is pending or threatened which
could (i) enjoin, prohibit or restrain this Agreement from becoming
effective, the making of the Loans and/or the issuance of Letters of
Credit on or after Effective Date or (ii) impose or result in the
imposition of a Material Adverse Effect.
(c) No Default. No Default or Unmatured Default shall have occurred and
be continuing or shall not have been waived in accordance with the
terms of the Restated Credit Agreement or would result from this
Agreement becoming effective and the parties' respective performance
hereunder.
(d) Representations and Warranties. All of the representations and
warranties contained in Article V and in any of the other Loan
Documents shall be true and correct in all material respects on and as
of the Effective Date.
(e) Legal Matters. All legal and regulatory matters shall be satisfactory
to the Agent and its counsel and to each Lender and their respective
counsel.
4.2 Each Advance and Letter of Credit. The Lenders shall not be required
to make any Advance, issue any Letter of Credit or purchase any participation
therein, unless on the applicable Borrowing Date, or in the case of a Letter of
Credit, the date on which the Letter of Credit is to be issued:
(i) There exists no Default or Unmatured Default.
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(ii) The representations and warranties contained in Article V are
true and correct as of such Borrowing Date except for amendments to the
Schedules to this Agreement made pursuant to the provisions of Section 1.3 and
reflecting transactions permitted by this Agreement.
Each Borrowing Notice with respect to each such Advance and the letter of
credit application with respect to a Letter of Credit shall constitute a
representation and warranty by the Borrower that the conditions contained in
Sections 4.2(i) and (ii) have been satisfied. Any Lender may require a duly
completed officer's certificate in substantially the form of Exhibit F hereto
and/or a duly completed compliance certificate in substantially the form of
Exhibit G hereto as a condition to making an Advance.
ARTICLE V: REPRESENTATIONS AND WARRANTIES
------------------------------------------
In order to induce the Agent and the Lenders to enter into this Agreement
and to make the Loans and the other financial accommodations to the Borrower and
to issue the Letters of Credit described herein, the Borrower hereby represents
and warrants as follows to each Lender and the Agent as of the date hereof and
thereafter on each date as required by Section 4.2:
5.1 Organization; Corporate Powers. The Borrower and each of its
Subsidiaries (i) is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (ii) is duly
qualified to do business as a foreign corporation and is in good standing under
the laws of each jurisdiction in which failure to be so qualified and in good
standing will have a Material Adverse Effect, (iii) has filed and maintained
effective (unless exempt from the requirements for filing) a current Business
Activity Report with the appropriate Governmental Authority in the States in
which it is required to do so and (iv) has all requisite corporate power and
authority to own, operate and encumber its property and to conduct its business
as presently conducted and as proposed to be conducted.
5.2 Authority.
---------
(A) The Borrower and each of its Subsidiaries have or had, as applicable,
the requisite corporate power and authority (i) to execute, deliver and perform
each of the Transaction Documents to which it is a party and (ii) to file the
Transaction Documents which must be filed by it with any Governmental Authority.
(B) The execution, delivery, performance and filing, as the case may be, of
each of the Transaction Documents to which the Borrower or any of its
Subsidiaries is party, and the consummation of the transactions contemplated
thereby, have been duly approved by the respective boards of directors and, if
necessary, the shareholders of the Borrower and its Subsidiaries, and such
approvals have not been rescinded. No other corporate action or proceedings on
the part of the Borrower or its Subsidiaries are necessary to consummate such
transactions.
(C) Each of the Transaction Documents to which the Borrower or any of its
Subsidiaries is a party has been duly executed, delivered or filed, as the case
may be, by it and constitutes its legal,
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valid and binding obligation, enforceable against it in accordance with its
terms (except as enforceability may be limited by bankruptcy, insolvency, or
similar laws affecting the enforcement of creditor's rights generally), is in
full force and effect and no material term or condition thereof has been
amended, modified or waived from the terms and conditions contained in the
Transaction Documents delivered to the Agent pursuant to the Original Credit
Agreement, the Restated Credit Agreement or this Agreement without the prior
written consent of the Required Lenders, and the Borrower and its Subsidiaries
have, and, to the best of the Borrower's and its Subsidiaries' knowledge, all
other parties thereto have, performed and complied with all the terms,
provisions, agreements and conditions set forth therein and required to be
performed or complied with by such parties on or before the Effective Date, and
no unmatured default, default or breach of any covenant by any such party exists
thereunder which could reasonably be expected to have a Material Adverse Effect.
5.3 No Conflict; Governmental Consents. The execution, delivery and
performance of each of the Loan Documents and other Transaction Documents to
which the Borrower or any of its Subsidiaries is a party do not and will not (i)
conflict with the certificate or articles of incorporation or by-laws of the
Borrower or any such Subsidiary, (ii) constitute a tortious interference with
any Contractual Obligation of any Person or conflict with, result in a breach of
or constitute (with or without notice or lapse of time or both) a default under
any Requirement of Law (including, without limitation, any Environmental
Property Transfer Act) or Contractual Obligation of the Borrower or any such
Subsidiary, or require termination of any Contractual Obligation, except such
interference, breach, default or termination which individually or in the
aggregate would not reasonably be expected to have a Material Adverse Effect,
(iii) with respect to the Loan Documents and, to the best of the Borrower's and
its Subsidiaries' knowledge with respect to the other Transaction Documents,
result in or require the creation or imposition of any Lien whatsoever upon any
of the property or assets of the Borrower or any such Subsidiary, other than
Liens permitted by the Loan Documents, or (iv) require any approval of the
Borrower's or any such Subsidiary's shareholders except such as have been
obtained. Except as set forth on Schedule 5.3 to this Agreement, the execution,
delivery and performance of each of the Transaction Documents to which the
Borrower or any of its Subsidiaries is a party do not and will not require any
registration with, consent or approval of, or notice to, or other action to,
with or by any Governmental Authority, including under any Environmental
Property Transfer Act, except filings, consents or notices which have been made,
obtained or given, or which, if not made, obtained or given, individually or in
the aggregate would not reasonably be expected to have a Material Adverse
Effect.
5.4 Financial Statements. The December 31, 1995 financial statements of
Holdings, the Borrower and its Subsidiaries, copies of which were delivered to
the Agent and the Lenders pursuant to the Original Credit Agreement, present the
financial condition of Holdings, the Borrower and such Subsidiaries as of such
date. The pro forma financial statements of Holdings, the Borrower and its
Subsidiaries dated as of the Closing Date, copies of which have been delivered
to the Agent and the Lenders prior to the Closing Date, present on a pro forma
basis the financial condition of Holdings, the Borrower and its Subsidiaries as
of such date after giving effect to the BLN Acquisition and the Alliance Sale.
The assumptions expressed in such pro forma financial statements were prepared
in good faith and are reasonable based on the information available to the
Borrower as of the Closing Date.
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5.5 No Material Adverse Change. Since December 31, 1995, there has
occurred no change in the business, properties, condition (financial or
otherwise) or results of operations of the Borrower or the Borrower and its
Subsidiaries taken as a whole or any other event which has had or is reasonably
likely to have a Material Adverse Effect.
5.6 Taxes.
-----
(A) Tax Examinations. All deficiencies which have been asserted against
the Borrower or any of the Borrower's Subsidiaries as a result of any federal,
state, local or foreign tax examination for each taxable year in respect of
which an examination has been conducted have been fully paid or finally settled
or are being contested in good faith, and as of the Closing Date, no issue has
been raised by any taxing authority in any such examination which, by
application of similar principles, reasonably can be expected to result in
assertion by such taxing authority of a material deficiency for any other year
not so examined which has not been reserved for in the Borrower's consolidated
financial statements to the extent, if any, required by Agreement Accounting
Principles. Except as permitted pursuant to Section 6.2(D), neither the
Borrower nor any of the Borrower's Subsidiaries anticipates any material tax
liability with respect to the years which have not been closed pursuant to
applicable law.
(B) Payment of Taxes. All tax returns and reports of each of Holdings,
the Borrower and the Borrower's Subsidiaries required to be filed have been
timely filed, and all taxes, assessments, fees and other governmental charges
thereupon and upon their respective property, assets, income and franchises
which are shown in such returns or reports to be due and payable have been paid
except those items which are being contested in good faith and have been
reserved for in accordance with Agreement Accounting Principles. The Borrower
has no knowledge of any proposed tax assessment against Holdings, the Borrower
or any of the Borrower's Subsidiaries that will have or is reasonably likely to
have a Material Adverse Effect.
5.7 Litigation; Loss Contingencies and Violations. Except as set forth
in Schedules 5.7 and 5.18 to this Agreement, there is no action, suit,
proceeding, investigation known to the Borrower or arbitration before or by any
Governmental Authority or private arbitrator pending or, to the knowledge of the
Borrower or any of its Subsidiaries, threatened against the Borrower or any of
its Subsidiaries or any property of any of them (i) challenging the validity or
the enforceability of any material provision of the Transaction Documents or
(ii) which will have or is reasonably likely to have a Material Adverse Effect.
There is no material loss contingency within the meaning of Agreement Accounting
Principles which has not been reflected in the consolidating financial
statements of the Borrower and the consolidating financial statements of
Alliance prepared and delivered to Section 6.1(A)(i) for the fiscal period
during which such material loss contingency was incurred. Neither the Borrower
nor any of its Subsidiaries is (A) in violation of any applicable Requirements
of Law which violation will have or is reasonably likely to have a Material
Adverse Effect, or (B) subject to or in default with respect to any final
judgment, writ, injunction, restraining order or order of any nature, decree,
rule or regulation of any court or Governmental Authority which will have or is
reasonably likely to have a Material Adverse Effect.
5.8 Subsidiaries. Schedule 5.8 to this Agreement (i) contains a
description of the corporate structure of Holdings, the Borrower, its
Subsidiaries and any other Person in which Holdings, the
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Borrower or any of its Subsidiaries holds an equity interest; and (ii)
accurately sets forth (A) the correct legal name, the jurisdiction of
incorporation and the jurisdictions in which each of the Borrower and the direct
and indirect Subsidiaries of the Borrower is qualified to transact business as a
foreign corporation, (B) the authorized, issued and outstanding shares of each
class of Capital Stock of Holdings, the Borrower and each of its Subsidiaries
and the owners of such shares, and (C) a summary of the direct and indirect
partnership, joint venture, or other equity interests, if any, of Holdings, the
Borrower and each Subsidiary of the Borrower in any Person that is not a
corporation. None of the issued and outstanding Capital Stock of the Borrower or
any of its Subsidiaries is subject to any vesting, redemption, or repurchase
agreement, and there are no warrants or options outstanding with respect to such
Capital Stock. The outstanding Capital Stock of the Borrower and each of its
Subsidiaries is duly authorized, validly issued, fully paid and nonassessable
and is not margin stock (as defined in Regulation U). The Borrower has no
Subsidiaries other than Alliance, all of the Capital Stock of which is owned by
the Borrower. Holdings has no Subsidiaries other than the Borrower and, upon its
creation in accordance with Section 6.3(G), the Finance Subsidiary.
5.9 ERISA. Neither the Borrower nor any of its Subsidiaries is now
maintaining or contributing to or has ever maintained or contributed to any
Benefit Plan. Neither the Borrower nor any of its Subsidiaries is now
contributing to or has ever contributed to or been obligated to contribute to
any Multiemployer Plan. Neither the Borrower nor any of its Subsidiaries
maintains or contributes to any employee welfare benefit plan within the meaning
of Section 3(1) of ERISA which provides benefits to employees after termination
of employment other than as required by Section 601 of ERISA. Each Plan which is
intended to be qualified under Section 401(a) of the Code as currently in effect
is so qualified, and each trust related to any such Plan is exempt from federal
income tax under Section 501(a) of the Code as currently in effect. The Borrower
and all its Subsidiaries are in compliance in all material respects with the
responsibilities, obligations and duties imposed on them by ERISA and the Code
with respect to all Plans. Neither the Borrower nor any other member of the
Controlled Group nor, to the knowledge of the Borrower or any member of the
Controlled Group, any fiduciary of any Plan has engaged in a nonexempt
prohibited transaction described in Sections 406 of ERISA or 4975 of the Code
which could reasonably be expected to subject the Borrower to liability
individually or in the aggregate in excess of $1,000,000. Neither the Borrower
nor any member of the Controlled Group has taken or failed to take any action
which would constitute or result in a Termination Event, which action or
inaction could reasonably be expected to subject the Borrower to liability
individually or in the aggregate in excess of $1,000,000. Neither the Borrower
nor any Subsidiary is subject to any liability under Sections 4063, 4064, 4069,
4204 or 4212(c) of ERISA and no other member of the Controlled Group is subject
to any liability under Sections 4063, 4064, 4069, 4204 or 4212(c) of ERISA which
could reasonably be expected to subject the Borrower to liability individually
or in the aggregate in excess of $1,000,000. Neither the Borrower nor any of its
Subsidiaries has, by reason of the transactions contemplated hereby, any
obligation to make any payment to any employee pursuant to any Plan or existing
contract or arrangement.
5.10 Accuracy of Information. The information, exhibits and reports
furnished by the Borrower and any of its Subsidiaries to the Agent or to any
Lender in connection with the negotiation of, or compliance with, the Loan
Documents, the representations and warranties of the Borrower and its
Subsidiaries contained in the Loan Documents, and all certificates and documents
delivered to the Agent and the Lenders pursuant to the terms thereof do not
contain as of the date
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furnished any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements contained herein or therein, in
light of the circumstances under which they were made, not misleading. The
assumptions and projections expressed in the documents so furnished were
reasonable based on the best information available at the time so furnished;
provided that the Borrower makes no representation or warranty that such
assumptions will prove in the future to be accurate or that the Borrower will
achieve the financial results reflected in such projections.
5.11 Securities Activities. Neither the Borrower nor any of its
Subsidiaries is engaged in the business of extending credit for the purpose of
purchasing or carrying margin stock (as defined in Regulation U).
5.12 Material Agreements. Neither the Borrower nor any Subsidiary is a
party to any agreement or instrument or subject to any charter or other
corporate restriction which will have or is reasonably likely to have a Material
Adverse Effect. Neither the Borrower nor any of its Subsidiaries has received
notice or has actual knowledge that (i) it is in default in the performance,
observance or fulfillment of any of the obligations, covenants or conditions
contained in any Contractual Obligation applicable to it, or (ii) any condition
exists which, with the giving of notice or the lapse of time or both, would
constitute a default with respect to any such Contractual Obligation, in each
case, except where such default or defaults, if any, will not have or are not
reasonably likely to have a Material Adverse Effect.
5.13 Compliance with Laws. The Borrower and its Subsidiaries are in
compliance with all Requirements of Law applicable to them and their respective
businesses, in each case where the failure to so comply individually or in the
aggregate will have or is reasonably likely to have a Material Adverse Effect.
5.14 Assets and Properties. The Borrower and each of its Subsidiaries has
good and marketable title to all of its assets and properties (tangible and
intangible, real or personal) owned by it or a valid leasehold interest in all
of its leased assets (except insofar as marketability may be limited by any laws
or regulations of any Governmental Authority affecting such assets), and all
such assets and property are free and clear of all Liens, except Liens securing
the Secured Obligations and Liens permitted under Section 6.3(C). Substantially
all of the assets and properties owned by, leased to or used by the Borrower
and/or each such Subsidiary of the Borrower are in adequate operating condition
and repair, ordinary wear and tear excepted. Except for Liens granted to the
Agent for the benefit of the Agent and the Holders of Secured Obligations,
neither this Agreement nor any other Transaction Document, nor any transaction
contemplated under any such agreement, will affect any right, title or interest
of the Borrower or such Subsidiary in and to any of such assets in a manner that
would have or is reasonably likely to have a Material Adverse Effect.
5.15 Statutory Indebtedness Restrictions. Neither the Borrower, nor any
of its Subsidiaries is subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act, the Interstate Commerce Act, or the
Investment Company Act of 1940, or any other federal or state statute or
regulation which limits its ability to incur indebtedness or its ability to
consummate the transactions contemplated hereby.
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5.16 Post-Retirement Benefits. As of the Closing Date the Borrower and
its Subsidiaries have no expected cost of post-retirement medical and insurance
benefits payable by the Borrower and its Subsidiaries to its employees and
former employees, as estimated by the Borrower in accordance with Financial
Accounting Standards Board Statement No. 106.
5.17 Insurance. Schedule 5.17 to this Agreement accurately sets forth as
of the Closing Date all insurance policies and programs currently in effect with
respect to the respective properties and assets and business of the Borrower and
its Subsidiaries, specifying for each such policy and program, (i) the amount
thereof, (ii) the risks insured against thereby, (iii) the name of the insurer
and each insured party thereunder, (iv) the policy or other identification
number thereof, (v) the expiration date thereof, (vi) the annual premium with
respect thereto and (vii) describes any reserves, relating to any self-insurance
program that is in effect. Such insurance policies and programs reflect coverage
that is reasonably consistent with prudent industry practice.
5.18 Contingent Obligations. Except as set forth on Schedule 5.18 to this
Agreement, neither the Borrower nor any of its Subsidiaries has any Contingent
Obligation, contingent liability, long-term lease or commitment, not reflected
in its audited financial statements delivered to the Agent on or prior to the
Original Closing Date or otherwise disclosed to the Agent and the Lenders in the
other Schedules to this Agreement, which will have or is reasonably likely to
have a Material Adverse Effect.
5.19 Restricted Junior Payments. Neither the Borrower nor any of its
Subsidiaries has directly or indirectly declared, ordered, paid or made or set
apart any sum or properties for any Restricted Junior Payment or agreed to do
so, except as permitted pursuant to Section 6.3(F) of this Agreement.
5.20 Labor Matters.
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(A) Except as listed on Schedule 5.20 to this Agreement, on the Closing
Date there are no collective bargaining agreements, other labor agreements or
Multiemployer Plans covering any of the employees of the Borrower or any of its
Subsidiaries. As of the Closing Date, no attempt to organize the employees of
the Borrower, and no labor disputes, strikes or walkouts affecting the
operations of the Borrower or any of its Subsidiaries, is pending, or, to the
Borrower's knowledge, threatened, planned or contemplated.
(B) Set forth in Schedule 5.20 to this Agreement is a list, as of the
Closing Date, of all material consulting agreements, executive compensation
plans, deferred compensation agreements, employee pension plans or retirement
plans, employee profit sharing plans, employee stock purchase and stock option
plans, severance plans, group life insurance, hospitalization insurance or other
plans or arrangements of Holdings, the Borrower and its Subsidiaries providing
for benefits for employees of Holdings, the Borrower and its Subsidiaries.
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5.21 Environmental Matters. Except as disclosed on Schedule 5.21 to this
Agreement or except as would not reasonably be likely to subject the Borrower to
liability individually or in the aggregate in excess of $1,000,000, the
operations of the Borrower and its Subsidiaries comply in all material respects
with Environmental, Health or Safety Requirements of Law and neither the
Borrower, any of its Subsidiaries nor any of their respective present property
or operations, or, to the best of, the Borrower's or any of its Subsidiaries'
knowledge, any of their respective past property or operations, are subject to
or the subject of, any investigation known to the Borrower or any of its
Subsidiaries, judicial or administrative proceeding, order, judgment, decree,
settlement or other agreement respecting (a) any material violation of
Environmental, Health or Safety Requirements of Law, (b) any remedial action or
(c) any claims or liabilities arising from the Release or threatened Release of
a Contaminant into the environment. Except as disclosed on Schedule 5.21 to this
Agreement or except as would not reasonably be likely to subject the Borrower to
liability individually or in the aggregate in excess of $1,000,000, there is not
now, nor to the best of the Borrower's or any of its Subsidiaries' knowledge has
there ever been on or in the property of the Borrower or any of its Subsidiaries
any landfill, waste pile, underground storage tanks, aboveground storage tanks,
surface impoundment or hazardous waste storage facility of any kind, any
polychlorinated biphenyls (PCBs) used in hydraulic oils, electric transformers
or other equipment, or any asbestos containing material. Neither the Borrower
nor any of its Subsidiaries has any material Contingent Obligation in connection
with any Release or threatened Release of a Contaminant into the environment
which could reasonably be likely to subject the Borrower to liability
individually or in the aggregate in excess of $1,000,000.
5.22 The BLN Acquisition. As of the Closing Date, the BLN Acquisition has
been consummated pursuant to the BLN Purchase Agreement, no material breach,
default or waiver of any term or condition of the BLN Purchase Agreement by the
Borrower or Holdings or, to the best of the Borrower's knowledge, the other
parties thereto has occurred, and the Borrower has obtained good and marketable
title to the "Purchased Assets" (as defined in the BLN Purchase Agreement) free
and clear of any Liens other than Liens permitted under this Agreement.
ARTICLE VI: COVENANTS
----------------------
The Borrower covenants and agrees that so long as any Commitments are
outstanding and thereafter until payment in full of all of the Obligations
(other than contingent indemnity obligations), unless the Required Lenders shall
otherwise give prior written consent:
6.1 Reporting. The Borrower shall:
---------
(A) Financial Reporting. Furnish to the Lenders:
-------------------
(i) Monthly Reports. As soon as practicable, and in any event within
twenty-five (25) days after the end of each calendar month, the
consolidated balance sheet of Holdings and its consolidated Subsidiaries as
at the end of such period and the related consolidated statements of
income, stockholders' equity and cash flow of Holdings and its consolidated
Subsidiaries for such calendar month, certified by the chief financial
officer of the Borrower on behalf of the Borrower as fairly presenting the
consolidated financial position of Holdings
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and its consolidated Subsidiaries as at the dates indicated and the results
of their operations and cash flow for the calendar months indicated in
accordance with Agreement Accounting Principles, subject to absence of
footnote disclosures and to normal year end adjustments.
(ii) Quarterly Reports. (a) As soon as practicable, and in any event
within forty-five (45) days after the end of each fiscal quarter in each
fiscal year, the consolidated balance sheet of Holdings and its
consolidated Subsidiaries as at the end of such period and the related
consolidated statements of income, stockholders' equity and cash flow of
Holdings and its consolidated Subsidiaries for such fiscal quarter and for
the period from the beginning of the then current fiscal year to the end of
such fiscal quarter, and a forecasted consolidated balance sheet and a
consolidated statement of earnings and cash flow of Holdings and its
consolidated Subsidiaries for and as of the end of the next succeeding
fiscal quarter and a comparison of the statement of earnings and cash flow
to the budget, certified by the chief financial officer of the Borrower on
behalf of the Borrower as fairly presenting the consolidated financial
position of Holdings and its consolidated Subsidiaries as at the dates
indicated and the results of their operations and cash flow for the periods
indicated in accordance with Agreement Accounting Principles, subject to
absence of footnote disclosures and to normal year end adjustments.
(b) As soon as practicable, and in any event within forty-five (45)
days after the end of the last fiscal quarter in each fiscal year, the
preliminary annual unaudited consolidated balance sheets of Holdings and
its consolidated Subsidiaries as at the end of such fiscal year and the
related consolidated statements of income, stockholders' equity and cash
flow of Holdings and its consolidated Subsidiaries for such fiscal year,
setting forth in each case in comparative form the corresponding actual and
forecasted figures for the previous fiscal year, subject to revisions based
on the annual reports delivered pursuant to clause (iii) below, along with
consolidating schedules in form and substance sufficient to calculate the
financial covenants set forth in Section 6.4.
(iii) Annual Reports. As soon as practicable, and in any event
within ninety (90) days after the end of each fiscal year, (a) the
consolidated balance sheets of Holdings and its consolidated Subsidiaries
as at the end of such fiscal year and the related consolidated statements
of income, stockholders' equity and cash flow of Holdings and its
consolidated Subsidiaries for such fiscal year, and in comparative form the
corresponding figures for the previous fiscal year along with consolidating
schedules in form and substance sufficient to calculate the financial
covenants set forth in Article 6.4, (b) a schedule from the Borrower
setting forth for each item in clause (a) hereof, the corresponding figures
from the consolidated financial budget for the current fiscal year
delivered pursuant to Section 6.1(A)(v), and (c) an audit report on the
items listed in clause (a) hereof of independent certified public
accountants of recognized national standing, which audit report shall be
unqualified and shall state that such financial statements fairly present
the consolidated financial position of Holdings and its consolidated
Subsidiaries as at the dates indicated and the results of their operations
and cash flow for the periods indicated in conformity with Agreement
Accounting Principles and that the examination by such accountants in
connection with such consolidated financial statements has been made in
accordance with generally accepted auditing standards. The deliveries made
pursuant to this
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clause (iii) shall be accompanied by (y) any management letter prepared by
the above-referenced accountants and (z) a certificate of such accountants
that, in the course of their examination necessary for their certification
of the foregoing, they have obtained no knowledge of any Default or
Unmatured Default, or if, in the opinion of such accountants, any Default
or Unmatured Default shall exist, stating the nature and status thereof.
(iv) Officer's Certificate. Together with each delivery of any
financial statement (a) pursuant to clauses (i), (ii) and (iii) of this
Section 6.1(A), an Officer's Certificate of the Borrower, substantially in
the form of Exhibit F attached hereto and made a part hereof, stating that
no Default or Unmatured Default exists, or if any Default or Unmatured
Default exists, stating the nature and status thereof and (b) pursuant to
clauses (ii) and (iii) of this Section 6.1(A), a Compliance Certificate,
substantially in the form of Exhibit G attached hereto and made a part
hereof, signed by the Borrower's chief financial officer or treasurer,
setting forth calculations for the period then ended for Section 2.5(B), if
applicable, which demonstrate compliance, when applicable, with the
provisions of Sections 6.3(F) and 6.4 and which details the current status
of lease payments required with respect to each of the Borrower's leased
premises where no landlord waiver agreement has been obtained pursuant to
the terms of the applicable Security Agreement.
(v) Budgets; Business Plans; Financial Projections. As soon as
practicable and in any event not later than the forty-fifth (45th) day
after the beginning of each fiscal year, a copy of the plan and forecast
(including a projected balance sheet, income statement and funds flow
statement) of Holdings, the Borrower and its Subsidiaries for such fiscal
year prepared in such detail as shall be reasonably satisfactory to the
Agent. As soon as practicable, any revisions of such plan and forecast
which represent a material amendment thereof.
(vi) Consolidating Financial Statements. Together with each delivery
of any financial statement pursuant to clause (i), (ii) or (iii) of this
Section 6.1(A), the Borrower shall deliver the corresponding consolidating
financial statements of the Borrower and each of its Subsidiaries certified
or audited, as applicable, if requested by the Agent or the Required
Lenders.
(B) Notice of Default. Promptly upon any of the chief executive officer,
chief operating officer, chief financial officer, treasurer or controller of the
Borrower obtaining knowledge (i) of any condition or event which constitutes a
Default or Unmatured Default, or becoming aware that any Lender or Agent has
given any written notice with respect to a claimed Default or Unmatured Default
under this Agreement, or (ii) that any Person has given any written notice to
the Borrower or any Subsidiary of the Borrower or taken any other action with
respect to a claimed default or event or condition of the type referred to in
Section 7.1(e), deliver to the Agent and the Lenders an Officer's Certificate
specifying (A) the nature and period of existence of any such claimed default,
Default, Unmatured Default, condition or event, (B) the notice given or action
taken by such Person in connection therewith, and (C) what action the Borrower
has taken, is taking and proposes to take with respect thereto.
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(C) Lawsuits. (i) Promptly upon the Borrower obtaining knowledge of the
institution of, or written threat of, any action, suit, proceeding, governmental
investigation or arbitration against or affecting the Borrower or any of its
Subsidiaries or any property of the Borrower or any of its Subsidiaries not
previously disclosed pursuant to Section 5.7, which action, suit, proceeding,
governmental investigation or arbitration exposes, or in the case of multiple
actions, suits, proceedings, governmental investigations or arbitrations arising
out of the same general allegations or circumstances which expose, in the
Borrower's reasonable judgment, the Borrower or any of its Subsidiaries to
liability in an amount aggregating $1,000,000 or more (exclusive of claims
covered by insurance policies of the Borrower or any of its Subsidiaries unless
the insurers of such claims have disclaimed coverage or reserved the right to
disclaim coverage on such claims and exclusive of claims covered by the
indemnity of a financially responsible indemnitor in favor of Borrowers or any
of its Subsidiaries (unless the indemnitor has disclaimed or reserved the right
to disclaim coverage thereof)), give written notice thereof to the Agent and the
Lenders and provide such other information as may be reasonably available to
enable each Lender and the Agent and its counsel to evaluate such matters; and
(ii) in addition to the requirements set forth in clause (i) of this Section
6.1(C), upon request of the Agent or the Required Lenders, promptly give written
notice of the status of any action, suit, proceeding, governmental investigation
or arbitration covered by a report delivered pursuant to clause (i) above and
provide such other information as may be reasonably available to it that would
not violate any attorney-client privilege by disclosure to the Lenders to enable
each Lender and the Agent and its counsel to evaluate such matters.
(D) Insurance. As soon as practicable and in any event within ninety (90)
days of the end of each fiscal year commencing with the fiscal year ending
December 31, 1996, deliver to the Agent and the Lenders (i) a report in form and
substance reasonably satisfactory to the Agent and the Lenders outlining all
material insurance coverage maintained as of the date of such report by the
Borrower and its Subsidiaries and the duration of such coverage and (ii) an
insurance broker's statement that all premiums with respect to such coverage
have been paid when due.
(E) ERISA Notices. Deliver or cause to be delivered to the Agent and the
Lenders, at the Borrower's expense, the following information and notices as
soon as reasonably possible, and in any event:
(i) (a) within ten (10) Business Days after the Borrower knows or has
reason to know that a Termination Event has occurred, a written statement
of the chief financial officer of the Borrower describing such Termination
Event and the action, if any, which the Borrower has taken, is taking or
proposes to take with respect thereto, and when known, any action taken or
threatened by the IRS, DOL or PBGC with respect thereto and (b) within ten
(10) Business Days after any member of the Controlled Group knows or has
reason to know that a Termination Event has occurred which could reasonably
be expected to subject the Borrower to liability individually or in the
aggregate in excess of $1,000,000, a written statement of the chief
financial officer of the Borrower describing such Termination Event and the
action, if any, which the member of the Controlled Group has taken, is
taking or proposes to take with respect thereto, and when known, any action
taken or threatened by the IRS, DOL or PBGC with respect thereto;
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(ii) within ten (10) Business Days after the Borrower or any of its
Subsidiaries knows or has reason to know that an assessment of a prohibited
transaction excise tax under Section 4975 of the Code has occurred, a
statement of the chief financial officer of the Borrower describing such
transaction and the action which the Borrower or any of its Subsidiaries
has taken, is taking or proposes to take with respect thereto;
(iii) within ten (10) Business Days after the establishment of any
Benefit Plan or the commencement of, or obligation to commence,
contributions to any Benefit Plan or Multiemployer Plan to which the
Borrower or any of its Subsidiaries was not previously contributing,
notification of such establishment, commencement or obligation to commence
and the amount of such contributions;
(iv) within ten (10) Business Days after the Borrower or any of its
Subsidiaries receives notice of any unfavorable determination letter from
the IRS regarding the qualification of a Plan under Section 401(a) of the
Code, copies of each such letter; and
(v) within ten (10) Business Days after the establishment of any
foreign employee benefit plan or the commencement of, or obligation to
commence, contributions to any foreign employee benefit plan to which the
Borrower or any Subsidiary was not previously contributing, notification of
such establishment, commencement or obligation to commence and the amount
of such contributions.
For purposes of this Section 6.1(E), the Borrower and any member of the
Controlled Group shall be deemed to know all facts known by the Administrator of
any Plan of which the Borrower or any member of the Controlled Group is the plan
sponsor.
(F) Labor Matters. Notify the Agent and the Lenders in writing, promptly
upon the Borrower's learning thereof, of (i) any material labor dispute to which
the Borrower or any of its Subsidiaries may become a party, including, without
limitation, any strikes, lockouts or other disputes relating to such Persons'
plants and other facilities and (ii) any Worker Adjustment and Retraining
Notification Act liability incurred with respect to the closing of any plant or
other facility of the Borrower or any of its Subsidiaries.
(G) Other Indebtedness. Deliver to the Agent (i) a copy of each regular
report, notice or communication regarding potential or actual defaults
(including any accompanying officers' certificate) delivered by or on behalf of
the Borrower to the holders of funded Indebtedness pursuant to the terms of the
agreements governing such Indebtedness, such delivery to be made at the same
time and by the same means as such notice or other communication is delivered to
such holders, and (ii) a copy of each notice or other communication received by
the Borrower from the from the holders of funded Indebtedness pursuant to the
terms of such Indebtedness, such delivery to be made promptly after such notice
or other communication is received by the Borrower.
(H) Environmental Notices. As soon as possible and in any event within
ten (10) days after receipt by the Borrower, a copy of (i) any notice or claim
to the effect that the Borrower or any of its Subsidiaries is or may be liable
to any Person as a result of the Release by the Borrower, any of its
Subsidiaries, or any other Person of any Contaminant into the environment, and
(ii) any notice
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alleging any violation of any Environmental, Health or Safety Requirements of
Law by the Borrower or any of its Subsidiaries if, in either case, such notice
or claim relates to an event which could reasonably be expected to subject the
Borrower to liability individually or in the aggregate in excess of $1,000,000.
(I) Borrowing Base Certificate. As soon as practicable, and in any event
within twenty (20) days after the close of each calendar month (and more often
if requested by the Agent or the Required Lenders), the Borrower shall provide
the Agent and the Lenders with a Borrowing Base Certificate, together with such
supporting documents as the Agent deems desirable, all certified as being true
and correct by the chief financial officer or treasurer of the Borrower. The
Borrower may update the Borrowing Base Certificate and supporting documents more
frequently than monthly and the most recently delivered Borrowing Base
Certificate shall be the applicable Borrowing Base Certificate for purposes of
determining the Borrowing Base at any time.
(J) SEC Filings and Notices. Promptly upon the filing thereof or receipt
thereof, deliver copies to the Agent of all registration statements and annual,
quarterly, monthly or other reports (including 8-Ks) which Holdings, the
Borrower or any of its Subsidiaries files with the Securities and Exchange
Commission (other than routine reports which are required to be filed concerning
the management of employee benefit plans, including, without limitation, stock
purchases or the exercise of stock options made under any such employee benefit
plan) and all notifications received from the Securities and Exchange Commission
by Holdings, the Borrower or their Subsidiaries pursuant to the Securities
Exchange Act and the rules promulgated thereunder.
(K) Other Publicly Available Information. Promptly upon the furnishing
thereof or the making available thereof, copies of all financial statements,
reports and notices, if any, sent or made available generally by Holdings or the
Borrower to its securities holders or filed with the Securities and Exchange
Commission by Holdings or the Borrower, all press releases made available
generally by Holdings or the Borrower or any of their Subsidiaries to the public
concerning material developments in the business of Holdings, the Borrower or
any such Subsidiary.
(L) Other Information. Promptly upon receiving a request therefor from
the Agent, prepare and deliver to the Agent and the Lenders such other
information with respect to Holdings, the Borrower, any of its Subsidiaries, or
the Collateral, including, without limitation, schedules identifying and
describing the Collateral and any dispositions thereof or any Asset Sale (and
the use of the Net Cash Proceeds thereof), as from time to time may be
reasonably requested by the Agent.
6.2 Affirmative Covenants.
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(A) Corporate Existence, Etc. The Borrower shall, and shall cause each of
its Subsidiaries (other than Alliance after the Alliance Sale Date) to, at all
times maintain its corporate existence and preserve and keep, or cause to be
preserved and kept, in full force and effect its rights and franchises material
to its businesses.
(B) Corporate Powers; Conduct of Business. The Borrower shall, and shall
cause each of its Subsidiaries (other than Alliance after the Alliance Sale
Date) to, qualify and remain qualified to do business in each jurisdiction in
which the nature of its business requires it to be so qualified
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and where the failure to be so qualified will have or is reasonably likely to
have a Material Adverse Effect. The Borrower will, and will cause each
Subsidiary (other than Alliance after the Alliance Sale Date) to, carry on and
conduct its business in substantially the same manner and in substantially the
same fields of enterprise as it is presently conducted.
(C) Compliance with Laws, Etc. The Borrower shall, and shall cause its
Subsidiaries to, (a) comply with all Requirements of Law and all restrictive
covenants affecting such Person or the business, properties, assets or
operations of such Person, and (b) obtain as needed all Permits necessary for
its operations and maintain such Permits in good standing, unless failure to
comply or obtain could not reasonably be anticipated to have a Material Adverse
Effect.
(D) Payment of Taxes and Claims; Tax Consolidation. The Borrower shall
pay, and cause each of its Subsidiaries to pay, (i) all taxes, assessments and
other governmental charges imposed upon it or on any of its properties or assets
or in respect of any of its franchises, business, income or property before any
penalty or interest accrues thereon, and (ii) all claims (including, without
limitation, claims for labor, services, materials and supplies) for sums which
have become due and payable and which by law have or may become a Lien (other
than a Lien permitted by Section 6.3(C) upon any of the Borrower's or such
Subsidiary's property or assets, prior to the time when any penalty or fine
shall be incurred with respect thereto; provided, however, that no such taxes,
assessments and governmental charges referred to in clause (i) above or claims
referred to in clause (ii) above (and interest, penalties or fines relating
thereto) need be paid if being contested in good faith by appropriate
proceedings diligently instituted and conducted and if such reserve or other
appropriate provision, if any, as shall be required in conformity with Agreement
Accounting Principles shall have been made therefor. The Borrower will not, nor
will it permit any of its Subsidiaries to, file or consent to the filing of any
consolidated income tax return with any Person other than Holdings.
(E) Insurance. The Borrower shall maintain for itself and its
Subsidiaries, or shall cause each of its Subsidiaries to maintain in full force
and effect the insurance policies and programs listed on Schedule 5.17 to this
Agreement or substantially similar policies and programs or other policies and
programs as reflect coverage that is reasonably consistent with prudent industry
practice. The Borrower shall deliver to the Agent endorsements (y) to all "All
Risk" physical damage insurance policies on all of the Borrower's and its
Subsidiaries' tangible real and personal property and assets and business
interruption insurance policies naming the Agent loss payee, in form and
substance acceptable to the Agent showing loss payable to the Agent (Form 438
BFU or its equivalent) and extra expense and business interruption endorsements
and such endorsement, or an independent instrument furnished to the Agent, shall
provide that the insurance companies will give the Agent at least thirty (30)
days' prior written notice before any such policy or policies of insurance shall
be altered or canceled (other than for nonpayment of premiums, which shall
require ten (10) days' prior written notice) and that no act or default of the
Borrower or any of its Subsidiaries or any other Person shall affect the right
of the Agent to recover under such policy or policies of insurance in case of
loss or damage and (z) to all general liability and other liability policies of
the Borrower and its Subsidiaries naming the Agent an additional insured. In the
event the Borrower or any of its Subsidiaries, at any time or times hereafter
shall fail to obtain or maintain any of the policies of insurance required
herein or to pay any premium in whole or in part relating thereto, then the
Agent, without waiving or releasing any Obligations or resulting Default
hereunder, may at any time or
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times thereafter (but shall be under no obligation to do so) obtain and maintain
such policies of insurance and pay such premiums and take any other action with
respect thereto which the Agent deems advisable. All sums so disbursed by the
Agent shall constitute part of the Obligations, payable as provided in this
Agreement.
(F) Inspection of Property; Books and Records; Discussions. The Borrower
shall permit, and cause each of its Subsidiaries to permit, any authorized
representative(s) designated by either the Agent or any Lender to visit and
inspect any of the properties of the Borrower or any of its Subsidiaries, to
examine, audit, check and make copies of their respective financial and
accounting records, books, journals, orders, receipts and any correspondence and
other data relating to their respective businesses or the transactions
contemplated hereby (including, without limitation, in connection with
environmental compliance, hazard or liability), and to discuss their affairs,
finances and accounts with their officers and independent certified public
accountants, all upon reasonable notice and at such reasonable times during
normal business hours, as often as may be reasonably requested. The Borrower
shall keep and maintain, and cause its Subsidiaries to keep and maintain, in all
material respects, proper books of record and account in which entries in
conformity with Agreement Accounting Principles shall be made of all dealings
and transactions in relation to their respective businesses and activities,
including, without limitation, transactions and other dealings with respect to
the Collateral. If a Default has occurred and is continuing, the Borrower, upon
the Agent's request, shall turn over any such records to the Agent or its
representatives.
(G) Insurance and Condemnation Proceeds. The Borrower hereby directs
(and, if applicable, shall cause its Subsidiaries to direct) all insurers under
policies of property damage, boiler and machinery and business interruption
insurance and payors of any condemnation claim or award relating to the property
to pay all proceeds payable under such policies or with respect to such claim or
award for any loss with respect to the Collateral directly to the Agent, for the
benefit of the Agent and the Holders of the Secured Obligations; provided,
however, in the event that such proceeds or award are less than $2,000,000 in
the aggregate or $1,000,000 for any particular service center or other location
("EXCLUDED PROCEEDS"), unless a Default shall have occurred and be continuing,
the Agent shall remit such Excluded Proceeds to the Borrower which the Borrower
hereby covenants and agrees it shall use to restore, rebuild or replace the
property subject to any such insurance payment or condemnation award as soon as
practicable after receipt thereof. Each such policy shall contain a long-form
loss-payable endorsement naming the Agent as loss payee, which endorsement shall
be in form and substance acceptable to the Agent. The Agent shall, upon receipt
of such proceeds (other than Excluded Proceeds) and at the Borrower's direction,
either apply the same to the principal amount of the Loans outstanding at the
time of such receipt and create a corresponding reserve against Revolving Credit
Availability in an amount equal to such application (the "Decision Reserve") or
hold them as cash collateral for the Secured Obligations. For up to 150 days
from the date of any loss (the "Decision Period"), the Borrower may notify the
Agent that it intends to restore, rebuild or replace the property subject to any
insurance payment or condemnation award and shall, as soon as practicable
thereafter, provide the Agent detailed information, including a construction
schedule and cost estimates. Should a Default occur at any time during the
Decision Period, should the Borrower notify the Agent that it has decided not to
rebuild or replace such property during the Decision Period, or should the
Borrower fail to notify the Agent of the Borrower's decision during the Decision
Period, then the amounts held as cash collateral pursuant to this Section 6.2(G)
or as the Decision Reserve shall upon the Required Lenders' direction be
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applied as a mandatory prepayment of the Term Loans pursuant to Section 2.5(B).
Proceeds held as cash collateral pursuant to this Section 6.2(G) or constituting
the Decision Reserve shall be disbursed as payments for restoration, rebuilding
or replacement of such property become due; provided, however, should a Default
occur after the Borrower has notified the Agent that it intends to rebuild or
replace the property, the Decision Reserve or amounts held as cash collateral
may, or shall, upon the Required Lenders' direction, be applied as a mandatory
prepayment of the Term Loans pursuant to Section 2.5(B). In the event the
Decision Reserve is to be applied as a mandatory prepayment to the Term Loans,
the Borrower shall be deemed to have requested Revolving Loans in an amount
equal to the Decision Reserve, and such Loans shall be made regardless of any
failure of the Borrower to meet the conditions precedent set forth in Article
IV. Upon completion of the restoration, rebuilding or replacement of such
property, the unused proceeds shall constitute Net Cash Proceeds of an Asset
Sale and shall be applied as a mandatory prepayment of the Term Loans pursuant
to Section 2.5(B).
(H) ERISA Compliance. The Borrower shall, and shall cause each of its
Subsidiaries to, establish, maintain and operate all Plans to comply in all
material respects with the provisions of ERISA, the Code, all other applicable
laws, and the regulations and interpretations thereunder and the respective
requirements of the governing documents for such Plans.
(I) Maintenance of Property. The Borrower shall cause all property used
or useful in the conduct of its business or the business of any Subsidiary to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and shall cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Borrower may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section shall prevent the Borrower from
discontinuing the operation or maintenance of any of such property if such
discontinuance is, in the judgment of the Borrower, desirable in the conduct of
its business or the business of any Subsidiary and not disadvantageous in any
material respect to the Agent or the Lenders.
(J) Environmental Compliance. The Borrower and its Subsidiaries shall
comply with all Environmental, Health or Safety Requirements of Law, except
where noncompliance will not have or is not reasonably likely to have a Material
Adverse Effect.
(K) Use of Proceeds. The Borrower will use the proceeds of the Revolving
Loans to provide funds for the working capital needs of the Borrower and (prior
to the Alliance Sale Date) Alliance and other general corporate purposes and to
repay outstanding Loans. The Borrower will not, nor will it permit any
Subsidiary to, use any of the proceeds of the Loans to purchase or carry any
"margin stock" (as defined in Regulation U) or to make any Acquisition.
(L) Interest Rate Agreements. The Borrower has previously entered into,
shall at all times hereafter maintain and shall enter into such additional
Interest Rate Agreements on terms and with counterparties determined by the
Borrower and reasonably acceptable to the Agent by which the Borrower is
protected against increases in interest rates from and after the date of such
contracts as to a notional amount which is not at any time less than twenty-five
percent (25%) of the outstanding principal amount of the Term Loans. In the
event a Lender elects to enter into any Interest Rate
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Agreement with the Borrower, the obligations of the Borrower with respect to
such Interest Rate Agreement shall be Secured Obligations secured by the
Collateral.
(M) Collection Account Arrangements.
-------------------------------
(i) Subject to Section 6.2 (M)(iv) below, all collections of the
Borrower's and Alliance's Receivables included in the Collateral and other
proceeds of its Collateral shall be deposited in (a) a deposit account
constituting a permitted Investment under Section 6.3(D)(v) or (b) a
Collection Account of the Borrower or Alliance, as applicable, which is
subject to a Collection Account Agreement or pursuant to another similar
arrangement for the collection of such amounts established by the Borrower
or Alliance, as applicable, and Agent and shall be transferred by the
Borrower and Alliance (1) at such frequency (but not less frequently than
weekly) as agreed to between the Agent and the Borrower to a concentration
account maintained by the Borrower and/or Alliance, as applicable, with the
Agent or otherwise subject to a Collection Account Agreement for any such
account not subject to a Collection Account Agreement or (2) in accordance
with the terms of the applicable Collection Account Agreement. Schedule
6.2(M) sets forth all of the deposit accounts currently maintained by the
Borrower and/or Alliance and in connection with each such deposit account
the Borrower and/or Alliance, as applicable, has entered into lock-box
services agreements. The Borrower or Alliance shall hereafter maintain
lock-box services agreements with banks which are either parties to
Collection Account Agreements or with which the Borrower and/or Alliance as
applicable has established deposit account sweep arrangements pursuant to
which funds on deposit are transferred to a concentration account
maintained by the Borrower and/or Alliance, as applicable, with the Agent
or a concentration account which is the subject of a Collection Account
Agreement and to which lock-boxes Account Debtors shall directly remit all
payments on the Receivables of the Borrower or Alliance, as applicable. Any
of the foregoing collections received by the Borrower or Alliance and not
so deposited, shall be deemed to have been received by the Borrower or
Alliance, as applicable, as the Agent's trustee and, upon such Person's
receipt thereof, such Person shall immediately transfer all such amounts
into a Collection Account of such Person in their original form (together
with all necessary endorsements).
(ii) Following the Collection Account Blockage Date and during the
continuance of a Default giving rise thereto, all payments received by the
Agent, all collections of Receivables included in the Collateral received
by the Agent, and all proceeds of other Collateral received by the Agent,
whether through payment or otherwise, will be the sole property of the
Agent for the benefit of the Holders of Secured Obligations and will be
deemed received by the Agent for application to the Obligations pursuant to
the terms of this Agreement.
(iii) The Borrower agrees to pay to Agent any and all fees, costs and
expenses which Agent incurs in connection with establishing and maintaining
the Collection Accounts, concentration accounts and depositing for
collection by Agent any check or item of payment received and/or delivered,
and the Borrower agrees to reimburse Agent for any amounts paid to any bank
party to a Collection Account Agreement arising out of Agent's
indemnification of such bank against damages incurred by the bank in the
operation of a Collection Account
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or other payments required to be made under the Collection Account
Agreement, all of which shall constitute additional Obligations hereunder
and shall be secured by the Collateral.
(iv) During the "Seller Collection Period," collections of the
Borrower's "Post-Closing Accounts Receivable" may be effected through the
"Lockbox" (as such terms are defined in Section 8.10 of the BLN Purchase
Agreement). The Borrower shall deliver to the Agent a copy of each schedule
delivered to the Borrower by BLN pursuant to Section 8.10 of the BLN
Purchase Agreement, promptly upon receipt thereof by the Borrower.
(N) Separate Corporate Existence. The Borrower shall take all reasonable
steps (including, without limitation, all steps which the Agent may from time to
time reasonably request) to maintain its and its Subsidiaries' identity as
separate legal entities from Holdings and to make it apparent to third parties
that each of the Borrower and such Subsidiaries are each an entity with assets
and liabilities distinct from those of Holdings and any of Holdings' Affiliates
(other than the Borrower and its Subsidiaries) (each of Holdings and such other
Persons are referred to in this Section 6.2(N), as the "PARENT ENTITY").
Without limiting the generality of the foregoing, the Borrower shall:
(i) require that all full-time employees of the Borrower and each
of its Subsidiaries identify themselves as such and not as employees of any
Parent Entity;
(ii) compensate all employees, consultants, investment bankers,
accountants, lawyers and agents directly, from the Borrower's or such
Subsidiary's applicable bank accounts, for services provided to the
Borrower or such Subsidiary by such employees, consultants, investment
bankers and agents and, if any employee, consultant, investment banker or
agent of the Borrower or any of its Subsidiaries is also an employee,
consultant, investment banker or agent of any Parent Entity, allocate the
compensation of such employee, consultant, investment banker or agent among
the Borrower or its Subsidiaries, on the one hand as applicable, and the
applicable Parent Entity or Parent Entities, on the other hand as
applicable, on the basis of actual use of the services so rendered to the
extent practicable and, to the extent such allocation is not practical, on
a basis reasonably related to actual use of such services;
(iii) allocate all overhead expenses (including, without limitation,
telephone and other utility charges and lease and office expenses) for
items shared among the Borrower or its Subsidiaries, on the one hand as
applicable, and the applicable Parent Entity or Parent Entities, on the
other hand as applicable, on the basis of actual use to the extent
practicable and, to the extent such allocation is not practicable, on a
basis reasonably related to actual use;
(iv) cause the Borrower and each of its Subsidiaries to be named as
an insured on the insurance policy covering its property, or enter into an
agreement with the holder of such policy whereby in the event of a loss in
connection with such property, proceeds are paid to the Borrower or
applicable Subsidiary;
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(v) maintain the Borrower's and its Subsidiaries' books and records
complete and separate from those of each Parent Entity;
(vi) ensure that any of the Borrower's or any Parent Entity's
consolidated financial statements or other public information for the
Borrower and its Affiliates or any Parent Entity and its Affiliates on a
consolidated basis contain appropriate disclosures concerning the
Borrowers' separate existence;
(vii) not maintain bank accounts or other depository accounts to
which any Parent Entity is an account party, into which any Parent Entity
makes deposits or from which any Parent Entity has the power to make
withdrawals;
(viii) not permit any Parent Entity to pay any of the Borrower's
operating expenses (except when paid and charged pursuant to an allocation
based upon actual use, to the extent practicable and, to the extent such
allocation is not practicable, on a basis reasonably related to actual
use); and
(ix) not pay dividends or make distributions, loans or other
advances to any Parent Entity except to the extent duly authorized by its
board of directors and in accordance with applicable corporation law and
otherwise as permitted by this Agreement.
6.3 Negative Covenants.
-------------------
(A) Indebtedness. Neither Holdings, the Borrower nor any of its
Subsidiaries shall directly or indirectly create, incur, assume or otherwise
become or remain directly or indirectly liable with respect to any Indebtedness,
except:
(i) with respect to Holdings:
(a) the Holdings Subordinated Debt;
(b) Indebtedness in respect of taxes;
(c) Indebtedness incurred for ordinary administrative expenses,
franchise taxes, accounting expenses and legal expenses of Holdings which
Indebtedness shall not exceed an aggregate of $40,000 in any fiscal year
and Indebtedness incurred for reasonable and customary expenses in
connection with the initial public offering of Holdings' stock;
(d) Indebtedness incurred under the BLN Purchase Agreement and the
Alliance Sale Agreement; and
(e) other Indebtedness in an aggregate outstanding principal amount
which does not at any time exceed $5,000,000;
(ii) with respect to the Borrower and its Subsidiaries:
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(a) the Obligations;
(b) Permitted Existing Indebtedness, and any extension, renewal,
refunding or refinancing thereof, provided that any such extension,
renewal, refunding or refinancing is in an aggregate principal amount not
greater than the principal amount of and interest, fees and expenses
accrued on, such Permitted Existing Indebtedness outstanding at the time
thereof and is on terms (including, without limitation, maturity,
amortization, interest rate, premiums, fees, covenants, events of default,
and remedies) not materially less favorable to the Borrower or materially
adverse to the Lenders than the terms of such Permitted Existing
Indebtedness;
(c) Subordinated Indebtedness the terms (including, without
limitation, maturity, amortization, interest rate, premiums, fees,
covenants, events of default, and remedies) of which are acceptable to the
Required Lenders when issued, but not any increase in the principal amount
thereof and not any refinancing, modification, refunding or extension of
maturity thereof, in whole or in part, unless such refinancing,
modification, refunding or extension is not materially less favorable to
the Borrower, including, without limitation, with respect to amount,
maturity, amortization, interest rate, premiums, fees, covenants,
subordination terms, events of default and remedies;
(d) Indebtedness in respect of taxes, assessments, governmental
charges and claims for labor, materials or supplies, to the extent that
payment thereof is not required pursuant to Section 6.2(D);
(e) Indebtedness constituting Contingent Obligations permitted by
Section 6.3(E);
(f) Indebtedness arising from intercompany loans from any Subsidiary
to the Borrower or any other such Subsidiary;
(g) Indebtedness in respect of profit sharing plans to the extent
permitted under Section 6.3(D)(ii);
(h) Indebtedness in respect of Interest Rate Agreements permitted
under Section 6.3(R);
(i) Indebtedness with respect to warranties and indemnities made
under any agreements for Asset Sales permitted under Section 6.3(B);
(j) secured purchase money Indebtedness (including Capitalized
Leases) incurred by the Borrower after the Original Closing Date to finance
the acquisition of fixed assets, if (1) at the time of such incurrence, no
Default or Unmatured Default has occurred and is continuing or would result
from such incurrence, (2) such Indebtedness has a scheduled maturity and is
not due on demand, (3) such Indebtedness does not exceed $1,000,000 in the
aggregate outstanding at any time, and (4) any Lien securing such
Indebtedness is permitted under Section 6.3(C);
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(k) Indebtedness with respect to surety, appeal and performance bonds
obtained by the Borrower or any Subsidiary in the ordinary course of
business;
(l) unsecured Indebtedness and other liabilities incurred in the
ordinary course of business and consistent with past practice, but not
incurred through the borrowing of money or the obtaining of credit (other
than customary trade terms);
(m) unsecured subordinated Indebtedness to Holdings or to the Finance
Subsidiary (the "SUBORDINATED INTERCOMPANY INDEBTEDNESS") in the original
principal amount of $21,000,000 as evidenced by the Substituted and Amended
Revolving Promissory Note dated June 7, 1996, in the maximum principal
amount of $50,000,000, but not any increase in the principal amount thereof
(other than as a result of the simultaneous loan by Holdings (or the
Finance Subsidiary, as applicable) to the Borrower in an amount not to
exceed the amount of interest paid by the Borrower to Holdings (or the
Finance Subsidiary, as applicable) on the date of such loan, which loan
shall be on the same terms as the original Subordinated Intercompany
Indebtedness in respect of which such interest was paid, provided the
aggregate outstanding amount of principal shall not at any time exceed
$33,825,000) and not any refinancing, modification, refunding or extension
of maturity thereof, in whole or in part, unless such refinancing,
modification, refunding or extension is not materially less favorable to
the Borrower, including, without limitation, with respect to amount,
maturity, amortization, interest rate, premiums, fees, covenants,
subordination terms, events of default and remedies, and which Subordinated
Intercompany Indebtedness shall be subject to a subordination agreement
(the "HOLDINGS SUBORDINATION AGREEMENT") in substantially the form attached
hereto as Exhibit K; and
(n) Indebtedness incurred pursuant to the BLN Purchase Agreement; and
(iii) with respect to Alliance, Indebtedness arising from
intercompany loans borrowed from the Borrower ("INTERCOMPANY LOANS")
provided:
(a) such Intercompany Loans shall be evidenced by a demand
intercompany note in substantially the form of Exhibit H attached hereto
which has been endorsed to the Agent for the benefit of itself and the
Holders of Secured Obligations ("INTERCOMPANY NOTE");
(b) all such Intercompany Loans shall be secured by a lien on all of
the assets of Alliance pursuant to a security agreement in substantially
the form of Exhibit I attached hereto ("INTERCOMPANY SECURITY AGREEMENT")
and which lien shall be subject to the subordination provisions contained
in Section 9.14 below;
(c) the Borrower shall have filed such financing statements naming
Alliance as debtor, the Borrower as secured party and the Agent as the
assignee of the secured party as shall be necessary to perfect the security
interests in and Liens on and against the Collateral granted or purported
to be granted pursuant to the Intercompany Security Agreement;
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(d) Alliance and the Borrower shall perform any and all other steps
reasonably requested by Agent to perfect, maintain and protect the security
interests in and Liens on and against the Collateral granted or purported
to be granted pursuant to the Intercompany Security Agreement; and
(e) The aggregate maximum amount of outstanding Intercompany Loans
under this Section 6.1(A)(iii) shall not at any time exceed $4,000,000.
(B) Sales of Assets. Neither the Borrower nor any of its Subsidiaries
shall sell, assign, transfer, lease, convey or otherwise dispose of any
property, whether now owned or hereafter acquired, or any income or profits
therefrom, or enter into any agreement to do so, except:
(i) sales of Inventory in the ordinary course of business;
(ii) the disposition of obsolete Equipment in the ordinary course of
business;
(iii) sales, assignments, transfers, leases, conveyances or other
dispositions of other assets if such transaction (a) is for all cash
consideration with respect to any Collateral which is sold, (b) is for not
less than fair market value and (c) when combined with all such other
sales, assignments, transfers, conveyances or other dispositions in the
immediately preceding twelve-month period, represents the disposition of
not greater than ten percent (10%) of the Borrower's consolidated (y)
assets or (z) revenues; if, after giving effect to any such sale or other
disposition, property having an aggregate fair market value in excess of
$4,000,000 will have been sold by the Borrower or any of its Subsidiaries
pursuant to this Section 6.2(B)(iii) since the Original Closing Date, the
Borrower shall, prior to such sale, provide the Agent with reasonable
projections or other evidence reasonably satisfactory to the Agent that
such sale will not or is not reasonably likely to have a Material Adverse
Effect;
(iv) the disposition of Inventory and Equipment (other than pursuant
to clauses (i), (ii) and/or (iii) above) with an aggregate book value for
all such sales which have occurred since May 30, 1996 not exceeding
$500,000 (the "PERMITTED INVENTORY AND EQUIPMENT SALES"); and
(v) the Alliance Sale.
(C) Liens. Neither the Borrower nor any of its Subsidiaries shall
directly or indirectly create, incur, assume or permit to exist any Lien on or
with respect to any of their respective property or assets except:
(i) Liens created by the Loan Documents;
(ii) Permitted Existing Liens;
(iii) Customary Permitted Liens;
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(iv) purchase money Liens (including the interest of a lessor under
a Capitalized Lease and Liens to which any property is subject at the time
of the Borrower's acquisition thereof) securing Indebtedness permitted
under Section 6.3(A); provided that such Liens shall not apply to any
property of the Borrower or its Subsidiaries other than that purchased or
subject to such Capitalized Lease;
(v) Liens created under the Intercompany Security Agreement; and
(vi) Liens created under the BLN Purchase Agreement.
In addition, neither the Borrower nor any Subsidiary of the Borrower shall
become a party to any agreement, note, indenture or other instrument, or take
any other action, which would prohibit the creation of a Lien on any of its
properties or other assets in favor of the Agent for the benefit of itself and
the Holders of Secured Obligations, as additional collateral for the
Obligations; provided that any agreement, note, indenture or other instrument in
connection with secured purchase money indebtedness (including Leases) may
prohibit the creation of a Lien in favor of the Agent for the benefit of itself
and the Holders of the Secured Obligations on the items of property obtained
with the proceeds of such purchase money indebtedness.
(D) Investments. Except to the extent permitted pursuant to paragraph (G)
below, neither the Borrower nor any of its Subsidiaries shall directly or
indirectly make or own any Investment except:
(i) Investments in Cash Equivalents;
(ii) Permitted Existing Investments in an amount not greater than
the amount thereof on the Closing Date;
(iii) Investments received in connection with the bankruptcy or
reorganization of suppliers and customers and in settlement of delinquent
obligations of, and other disputes with, customers and suppliers arising in
the ordinary course of business;
(iv) Investments consisting of loans to management of the Borrower
in an aggregate outstanding principal amount at any time not to exceed
$200,000 minus the aggregate outstanding amount of Permitted Existing
Investments;
(v) Investments consisting of (a) bank accounts maintained by the
Borrower and its Subsidiaries with financial institutions provided not more
than $15,000 shall be maintained in any such account at any one time and
not more than $500,000 shall be maintained in all such accounts at any
time; and (b) Collection Accounts maintained by the Borrower and its
Subsidiaries in compliance with the provisions of Section 6.2(M);
(vi) Investments with any other Persons which do not exceed $500,000
in the aggregate at any time; and
(vii) Investments consisting of Intercompany Loans permitted by
Section 6.3(A)(iii).
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(E) Contingent Obligations. Neither the Borrower nor any of its
Subsidiaries shall directly or indirectly create or become or be liable with
respect to any Contingent Obligation, except:
(i) recourse obligations resulting from endorsement of negotiable
instruments for collection in the ordinary course of business;
(ii) Permitted Existing Contingent Obligations and any extensions,
renewals or replacements thereof, provided that any such extension, renewal
or replacement is not greater than the Indebtedness under, and shall be on
terms no less favorable to the Borrower or such Subsidiary than the terms
of, the Permitted Existing Contingent Obligation being extended, renewed or
replaced;
(iii) obligations, warranties, and indemnities, not relating to
Indebtedness of any Person, which have been or are undertaken or made in
the ordinary course of business and not for the benefit of or in favor of
an Affiliate of the Borrower or such Subsidiary;
(iv) Contingent Obligations arising under the Transaction Documents;
(v) additional Contingent Obligations which do not exceed $100,000
in the aggregate at any time;
(vi) Contingent Obligations with respect to surety, appeal and
performance bonds obtained by the Borrower or any Subsidiary in the
ordinary course of business; and
(vii) Contingent Obligations consisting of the guarantee of
Indebtedness of Holdings ("UPSTREAM GUARANTEE") provided:
(A) the Indebtedness guaranteed is for a sum certain;
(B) such Upstream Guarantee shall be with respect to
Indebtedness the principal amount of which does not exceed the amount
which the Borrower would be permitted to pay at the time such Upstream
Guarantee is entered into as a dividend under Section 6.3(F)(i) below;
and
(C) the aggregate amount of Indebtedness guaranteed is
deducted from any calculations of dividends and interest distributions
permitted under Section 6.3(F)(i) for so long as such Upstream
Guarantee is outstanding.
(F) Restricted Junior Payments. Neither the Borrower nor any of its
Subsidiaries shall declare or make any Restricted Junior Payment, except:
(i) the Borrower may make (a) mandatory payments of interest due on
the Subordinated Intercompany Indebtedness ("SUBORDINATED INTEREST
PAYMENTS") and (b) other distributions (the "HOLDINGS' DIVIDENDS") to
Holdings or to the Finance Subsidiary, as applicable, in any fiscal year,
from funds legally available for such purpose, provided the aggregate
amount of (1) Subordinated Interest Payments, plus (2) Holdings' Dividends
minus
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the aggregate amount of additional Subordinated Intercompany Indebtedness
loaned by Holdings or by the Finance Subsidiary, as applicable, to the
Borrower on the date of any such distribution does not exceed in the
aggregate; (A) 50% of the net earnings (or loss) after taxes of Borrower
and its consolidated Subsidiaries on a consolidated basis for the period
from January 1, 1996 to the end of the most recently completed fiscal year
for which the audited financial statements have been delivered pursuant to
Section 6.1(A)(i) taken as a single accounting period determined in
conformity with Agreement Accounting Principles minus (B) the aggregate
amount of Contingent Obligations which are the subject of an Upstream
Guarantee;
(ii) the Borrower may make distributions to Holdings in any fiscal
year, from funds legally available for such purpose, in an amount not to
exceed the amount calculated pursuant to Schedule 6.3(F)(ii) minus any
amounts paid directly by the Borrower to any Governmental Authority with
respect to the consolidated group's tax liability;
(iii) (a) mandatory payments of interest, principal or premium, if
any, due on the Subordinated Indebtedness as permitted under Section
6.3(A)(ii)(c), unless such payments are prohibited by the terms of such
Indebtedness or the subordination agreements related thereto and (b)
distributions to Holdings from funds legally available for such purpose, in
an amount equal to mandatory payments of principal and interest, if any,
due on the Orcal Notes unless such payments are prohibited by the terms of
such Indebtedness or the subordination provisions related thereto provided
such distributions shall not be permitted to be made prior to the date upon
which Holdings must make such payments to the holder(s) of the Orcal Notes
and for which adequate provisions must be made for insuring that such
payments on the Orcal Notes are made by Holdings through a disbursement
direction agreement for direct funding or some similar alternative
arrangement acceptable to the Agent; and
(iv) cash dividends or distributions on the Capital Stock of the
Borrower to fund actual out-of-pocket ordinary administrative expenses,
franchise taxes, accounting expenses and legal expenses of Holdings which
dividends shall not exceed $40,000 in any fiscal year;
provided, however, that:
(1) the Restricted Junior Payments described in clauses (i) through
(iv) above shall not be permitted if either a Default or an Unmatured
Default shall have occurred and be continuing at the date of declaration or
payment thereof or would result therefrom;
(2) the amount of Restricted Junior Payments permitted to be made
pursuant to clause (i) above shall be determined after the Agent's and the
Lenders' receipt of the audited financial statements to be delivered
pursuant to Section 6.1(a)(iii) (and the related Officer's Certificate
pursuant to Section 6.1(A)(iv)) for the immediately preceding fiscal year
and no earnings or income for any period shall be included in such
calculation until receipt of the above-reference audited financial
statements for such period;
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(3) the Restricted Junior Payments described in clause (iii)(b) above
shall not be permitted to be made until after the Agent's and the Lenders'
receipt of: (1) the audited financial statements to be delivered pursuant
to Section 6.1(a)(iii) (and the related Officer's Certificate pursuant to
Section 6.1(A)(iv)) for the immediately preceding fiscal year; (2) the
unaudited quarterly financial statements to be delivered pursuant to
Section 6.1(a)(ii) (and the related Officer's Certificate pursuant to
Section 6.1(A)(iv)) for the immediately preceding fiscal quarter and (3)
the unaudited monthly financial statements to be delivered pursuant to
Section 6.1(A)(i) (and the related Officer's Certificate pursuant to
Section 6.1(A)(iv)) for the immediately preceding fiscal month (other than
in connection with the annual principal payment to be made under such
clause (iii)(b)), all of which financial statements shall reflect that no
Default or Unmatured Default shall exist prior to or after taking into
account the effect of any such payment; and
(4) In addition to the requirements set forth in clause (i) above,
Restricted Junior Payments described in clause (i) above shall not be
permitted to be made unless (A) the aggregate amount of such Restricted
Junior Payments described in clause (i) consisting of Holdings' Dividends
and Subordinated Interest Payments is not greater than the aggregate amount
of additional Subordinated Intercompany Indebtedness loaned by Holdings to
the Borrower on the date of such distributions; or (B) if the aggregate
amount of such Restricted Junior Payments described in clause (i)
consisting of Holdings' Dividends and Subordinated Interest Payments
exceeds the aggregate amount of additional Subordinated Intercompany
Indebtedness loaned by Holdings to the Borrower on the date of such
distributions (such excess being herein, the "NET DISTRIBUTION"):
(I) in addition to the audited financial statements required
pursuant to clause (2) above, the Agent and the Lenders shall have
received the unaudited quarterly financial statements to be delivered
pursuant to Section 6.1(A)(ii) (and the related Officer's Certificate
pursuant to Section 6.1(A)(iv)) for the fiscal quarter ending
immediately preceding the proposed date of such Net Distribution; and
(II) the Borrower shall have demonstrated to the satisfaction of
the Agent and the Lenders that if the proposed Net Distribution had
been paid as of the end of the immediately preceding fiscal quarter,
the Fixed Charge Coverage Ratio as of the end of such quarter would
not be less than 1.25 to 1.00.
(G) Conduct of Business; Subsidiaries; Acquisitions. Neither the Borrower
nor any of its Subsidiaries shall engage in any business other than the
businesses engaged in by the Borrower or its Subsidiaries on the date hereof and
any business or activities which are substantially similar, related or
incidental thereto. Holdings shall not engage, either directly or indirectly
(except through the Borrower) in any operating business enterprise but shall
solely own the Subordinated Intercompany Indebtedness and the Capital Stock of
the Borrower and, as permitted by the following sentence, of the Finance
Subsidiary, provided that Holdings may enter into and incur obligations under
the BLN Purchase Agreement and the Alliance Sale Agreement. Holdings shall not
create, capitalize or acquire any Subsidiary (other than the Borrower) after the
date hereof, except that Holdings may create and capitalize the Finance
Subsidiary under the laws of Delaware for the sole purpose of holding the
Subordinated Intercompany Indebtedness, which Holdings may assign to the
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Finance Subsidiary subject to the Holdings Subordination Agreement, and upon the
assignment of which the Finance Subsidiary shall acknowledge and assume the
Holdings Subordination Agreement pursuant to documentation satisfactory in form
and substance to the Agent. After the Alliance Sale Date, Alliance shall not
engage in any business, operations or activities other than the collection and
liquidation of its Receivables, the maintenance of permits and registrations
with Governmental Authorities, the ownership of intellectual property and
activities incidental to the winding up of its business and operations as
conducted prior to the Alliance Sale Date. Neither the Borrower nor Alliance
shall create, capitalize or acquire any Subsidiary after the date hereof.
Neither the Borrower nor Alliance shall enter into any transaction or series of
transactions in which it acquires all or any significant portion of the assets
of another Person, except such a purchase by the Borrower that meets the
following requirements (each such purchase constituting a "PERMITTED
ACQUISITION"):
(1) no Default or Unmatured Default shall have occurred and be
continuing or would result from such transaction or transactions or the
incurrence of any Indebtedness in connection therewith;
(2) prior to each such purchase, the Borrower shall deliver to the
Agent and the Lenders a certificate from one of the Borrower's financial
officers demonstrating to the satisfaction of the Agent and the Required
Lenders that after giving effect to such transaction or transactions and
the incurrence of any Indebtedness permitted by Section 6.3(A) in
connection therewith on a pro forma basis as if such acquisition and such
incurrence of Indebtedness had occurred on the first day of the twelve-
month period ending on the last day of the Borrower's most recently
completed fiscal quarter, the Borrower would have been in compliance with
all provisions of Section 6.4 at all times during such twelve-month period;
and
(3) the purchase is consummated pursuant to a negotiated acquisition
agreement on a non-hostile basis and involves the purchase of a business
line similar, related or incidental to that of the Borrower and its
Subsidiaries as of the Closing Date.
(H) Transactions with Shareholders and Affiliates. Neither the Borrower nor
any of its Subsidiaries shall directly or indirectly (i) pay any management fees
or other similar fees or compensation to Holdings, CHS, any other holder or
holders of the Borrower's equity securities or any of their Affiliates, other
than wages, salaries and bonuses of employees who are also stockholders of the
Borrower in the ordinary course and consistent with past practices or (ii)
except in connection with the documents executed in connection with the "Orcal
Acquisition" (as defined in the Original Credit Agreement), enter into or permit
to exist any transaction (including, without limitation, the purchase, sale,
lease or exchange of any property or the rendering of any service) with
Holdings, CHS, any other holder or holders of any of the Borrower's equity
securities or any of their Affiliates (which is not a Subsidiary of the
Borrower), on terms that are less favorable to the Borrower or any of its
Subsidiaries, as applicable, than those that might be obtained in an arm's
length transaction at the time from Persons who are not such a holder or
Affiliate.
(I) Restriction on Fundamental Changes. Neither the Borrower nor any of its
Subsidiaries shall enter into any merger or consolidation, or liquidate, wind-up
or dissolve (or suffer any
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liquidation or dissolution), or convey, lease, sell, transfer or otherwise
dispose of, in one transaction or series of transactions, all or substantially
all of the Borrower's or any such Subsidiary's business or property, whether now
or hereafter acquired, except transactions permitted under Sections 6.3(B) or
6.3(G).
(J) Sales and Leasebacks. Neither the Borrower nor any of its Subsidiaries
shall become liable, directly, by assumption or by Contingent Obligation, with
respect to any lease, whether an Operating Lease or a Capitalized Lease, of any
property (whether real or personal or mixed) (i) which it or one of its
Subsidiaries sold or transferred or is to sell or transfer to any other Person,
or (ii) which it or one of its Subsidiaries intends to use for substantially the
same purposes as any other property which has been or is to be sold or
transferred by it or one of its Subsidiaries to any other Person in connection
with such lease, unless in either case the sale involved is not prohibited under
Section 6.3(B) and the lease involved is not prohibited under Section 6.3(A).
(K) Margin Regulations. Neither the Borrower nor any of its Subsidiaries,
shall use all or any portion of the proceeds of any credit extended under this
Agreement to purchase or carry Margin Stock.
(L) ERISA. The Borrower shall not engage, or permit any of its Subsidiaries
to engage, in any prohibited transaction described in Sections 406 of ERISA or
4975 of the Code for which a statutory or class exemption is not available or a
private exemption has not been previously obtained from the DOL.
(M) Issuance of Capital Stock. Neither the Borrower nor any of its
Subsidiaries shall issue any Capital Stock.
(N) Corporate Documents. Neither the Borrower nor any of its Subsidiaries
shall amend, modify or otherwise change any of the terms or provisions in any of
their respective corporate documents (other than the by-laws and, in the case of
by-laws, any of the material terms or provisions thereof) as in effect on the
date hereof in any manner adverse to the interests of the Lenders without the
prior written consent of the Required Lenders (which consent shall not be
unreasonably withheld).
(O) Other Indebtedness. (i) Except as permitted in Section 6.3(S), the
Borrower shall not amend, supplement or otherwise modify the terms of any
Indebtedness (other than the Obligations) permitted under Section 6.3(A) in any
way that would be materially less advantageous to the Borrower or materially
adverse to the Lenders, including, without limitation, with respect to amount,
maturity, amortization, interest rate, premiums, fees, covenants, events of
default and remedies. Except for payments made in the ordinary course with
respect to the Borrower's trade indebtedness and except as permitted in Section
6.3(F)(iii), neither the Borrower nor any of its Subsidiaries shall purchase,
redeem or prepay any principal of, premium, if any, interest or other amount
payable in respect of any Indebtedness (other than the Obligations) permitted
under Section 6.3(A).
(ii) Holdings shall not amend, supplement or otherwise modify the
Holdings Subordinated Debt (as in effect as of the date of issuance thereof) in
any way that would be materially less advantageous to Holdings or materially
adverse to the Lenders, including, without
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limitation, with respect to amount, maturity, amortization, interest rate,
premiums, fees, covenants, events of default, remedies, dividends and
subordination provisions.
(P) Fiscal Year. Neither the Borrower nor any of its consolidated
Subsidiaries shall change its fiscal year for accounting or tax purposes from a
period consisting of the 12-month period ending on December 31 of each calendar
year.
(Q) Subsidiary Covenants. The Borrower will not, and will not permit any
Subsidiary (other than Alliance, pursuant to the Alliance Sale Agreement) to,
create or otherwise cause or suffer to exist or become effective any consensual
encumbrance or restriction of any kind on the ability of any Subsidiary to pay
dividends or make any other distribution on its stock, or make any other
Restricted Junior Payment, pay any Indebtedness or other Obligation owed to the
Borrower or any other Subsidiary, make loans or advances or other Investments in
the Borrower or any other Subsidiary, or sell, transfer or otherwise convey any
of its property to the Borrower or any other Subsidiary.
(R) Rate Hedging Obligations. The Borrower shall not and shall not
permit any of its Subsidiaries to enter into any interest rate, commodity or
foreign currency exchange, swap, collar, cap, leveraged derivative or similar
agreements other than interest rate, foreign currency or commodity exchange,
swap, collar, cap or similar agreements entered into by the Borrower pursuant to
Section 6.2(L) hereof or pursuant to which the Borrower has hedged its actual
interest rate, foreign currency or commodity exposure (such hedging agreements
are sometimes referred to herein as "Interest Rate Agreements").
(S) Subordinated Indebtedness. The Borrower shall not amend, supplement
or modify the terms of any Permitted Subordinated Indebtedness, or make any
payment required as a result of an amendment or change thereto other than
amendments, supplements or modifications which (i) decrease the rate of interest
payable on the Permitted Subordinated Indebtedness, (ii) provide for the payment
in kind in lieu of cash of any portion of the interest on the Permitted
Subordinated Indebtedness, (iii) provide for the extension of the maturity date
with respect to any principal or interest payment to be made under instruments
evidencing Permitted Subordinated Indebtedness, (iv) provide more flexibility to
the Borrower in connection with any financial covenants or (v) waive any
defaults existing in connection with the Permitted Subordinated Indebtedness,
and which in any event do not adversely affect in any respect the interests of
the Agent or the Holders of the Secured Obligations.
(T) Purchase Agreements. The Borrower shall not amend, supplement or
modify the terms of the BLN Purchase Agreement or the Alliance Sale Agreement in
any way that would be materially less advantageous to the Borrower or materially
adverse to the Lenders.
6.4 Financial Covenants. The Borrower shall comply, and shall cause
Holdings and its consolidated Subsidiaries to comply, with the following:
(A) Defined Terms for Financial Covenants. The following terms used in
this Agreement shall have the following meanings (such meanings to be
applicable, except to the extent otherwise
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indicated in a definition of a particular term, both to the singular and the
plural forms of the terms defined):
"CAPITAL EXPENDITURES" means, for any period, the aggregate of all
expenditures (whether paid in cash or accrued as liabilities and including
Capitalized Leases and Permitted Purchase Money Indebtedness) by Holdings and
its consolidated Subsidiaries during that period that, in conformity with
Agreement Accounting Principles, are required to be included in or reflected by
the property, plant, equipment or similar fixed asset accounts reflected in the
consolidated balance sheet of Holdings and its consolidated Subsidiaries other
than with respect to the acquisition of fixed assets in connection with any
Acquisitions, including, without limitation, the BLN Acquisition.
"EBITA" means, for any period, on a consolidated basis for Holdings and its
consolidated Subsidiaries, the sum, without duplication, of the amounts for such
period of (i) Net Income, plus (ii) charges against income for foreign, federal,
state and local taxes, plus (iii) Interest Expense, plus (iv) Non-Cash Interest
Expense plus (v) Fees, plus (vi) amortization expense, including, without
limitation, amortization of goodwill and other intangible assets, plus (vii)
other non-cash charges classified as long-term deferrals in accordance with
Agreement Accounting Principles, minus (viii) interest income, minus (ix)
extraordinary gains (and any unusual gains arising in or outside of the ordinary
course of business not included in extraordinary gains determined in accordance
with Agreement Accounting Principles which have been included in the
determination of Net Income).
"FEES" means fees (including agency and unused commitment fees) and
discounts with respect to (i) Letters of Credit and (ii) Indebtedness evidenced
by this Agreement.
"INTEREST EXPENSE" means, for any period, total consolidated interest
expense of Holdings and its consolidated Subsidiaries, whether paid or accrued
(including the interest component of Capitalized Leases), but excluding Non-Cash
Interest Expense and Fees, all as determined in conformity with Agreement
Accounting Principles. For purposes of determining compliance with the
requirements of clause (4) of Section 6.3(F) with respect to any proposed Net
Distribution, the amount of such Net Distribution shall be treated as Interest
Expense.
"NET INCOME" means, for any period, the net earnings (or loss) after taxes
of Holdings and its consolidated Subsidiaries on a consolidated basis for such
period taken as a single accounting period determined in conformity with
Agreement Accounting Principles.
"NON-CASH INTEREST EXPENSE" means, for any period, that portion of the
consolidated interest expense of Holdings and its consolidated Subsidiaries
which is not payable in cash, including, without limitation (i) amortization of
discount and (ii) accrued interest on the Holdings Subordinated Notes, all as
determined in accordance with Agreement Accounting principles.
"RENTALS" of a Person means the aggregate fixed amounts payable by such
Person under any lease of real or personal property having an original term
(including any required renewals or any renewals at the option of the lessor or
lessee) of one year or more but does not include any amounts payable under
Capitalized Leases of such Person.
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(B) Interest Expense Coverage Ratio. Maintain a ratio (the "INTEREST
EXPENSE COVERAGE RATIO") of (i) EBITA to (ii) Interest Expense for the
applicable period of at least
2.00 to 1.00 for the fiscal quarter ended September 30, 1996 and for each fiscal
quarter thereafter until the Termination Date. In each case the Interest
Coverage Ratio shall be determined as of the last day of each fiscal quarter for
the four-quarter period ending on such day.
(C) Fixed Charge Coverage Ratio. Maintain a ratio of: (i) the sum,
without duplication, of the amounts of (a) EBITA, plus (b) depreciation expense,
plus (c) Rentals, minus (d) Capital Expenditures to (ii) the sum, without
duplication, of the amounts of (a) Interest Expense, plus (b) Fees, plus (c)
Rentals, plus (d) the aggregate of the Restricted Junior Payments consisting of
tax related payments paid pursuant to Section 6.3(F)(ii) and any amounts paid
directly by the Borrower to any Governmental Authority with respect to the
consolidated group's tax liability, plus (e) scheduled amortization of the
principal portion of the Term Loans and scheduled amortization of the principal
portion of all other Indebtedness (other than Indebtedness incurred pursuant to
the BLN Purchase Agreement) of Holdings and its Subsidiaries during such period,
plus (f) all payments in the nature of dividends, distributions, return of
capital or other similar payments made by Holdings to holders of its equity
securities (the intent hereof being to capture all payments which if made by the
Borrower would be classified as Restricted Junior Payments), plus (g) Net
Distributions of at least the respective ratio set forth below for the fiscal
quarter ending September 30, 1996 and for each fiscal quarter thereafter until
the Termination Date:
<TABLE>
<CAPTION>
Fiscal Quarter Ending Minimum Ratio
--------------------- -------------
<S> <C>
September 30, 1996 1.05 to 1.00
December 31, 1996 1.05 to 1.00
March 31, 1997 1.00 to 1.00
June 30, 1997 1.00 to 1.00
September 30, 1997 1.05 to 1.00
December 31, 1997 1.05 to 1.00
March 31, 1998 and thereafter 1.15 to 1.00
</TABLE>
In each case the Fixed Charge Coverage Ratio shall be determined as of the last
day of each fiscal quarter for the four-quarter period ending on such day;
(D) Maximum Leverage Ratio. Maintain a ratio ("LEVERAGE RATIO") of (i)
the sum, without duplication, of (y) Indebtedness of Holdings and its
consolidated subsidiaries for borrowed money (excluding from such calculation
Indebtedness of Holdings in connection with the Holdings Subordinated Notes)
plus (z) the maximum fixed repurchase price of any Redeemable Stock of Holdings
to the extent that payment thereof may be funded as a permissible Restricted
Junior Payment under the terms of Section 6.3(F) to (ii) the sum, without
duplication, of (a) EBITA plus (b) depreciation expenses minus (c) Capital
Expenditures, of not greater than the respective ratio set forth below for the
fiscal quarter ending September 30, 1996 and for each fiscal quarter thereafter
until the Termination Date:
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<TABLE>
<CAPTION>
Fiscal Quarter Ending
- ---------------------
Maximum Ratio
- -------------
<S> <C>
September 30, 1996 6.00 to 1.00
December 31, 1996 6.00 to 1.00
March 31, 1997 6.00 to 1.00
June 30, 1997 5.00 to 1.00
September 30, 1997 4.50 to 1.00
December 31, 1997 4.15 to 1.00
March 31, 1998 and thereafter 4.00 to 1.00
</TABLE>
The Leverage Ratio shall be calculated, in each case, determined as of the last
day of each fiscal quarter based upon (A) (i) with respect to Revolving Loans,
the average of the outstanding amounts as of the last day of each quarter for
the four quarters in the period then ended and (ii) with respect to the Term
Loans and other Indebtedness, the outstanding amount as of the end of the
quarter then ended; and (B) for EBITA and depreciation, the total for the four-
quarter period ending on such day and (C) for Capital Expenditures the amount
spent during such four-quarter period.
ARTICLE VII: DEFAULTS
- ----------------------
7.1 Defaults. Each of the following occurrences shall constitute a Default
under this Agreement:
(a) Failure to Make Payments When Due. The Borrower shall (i) fail to pay
when due any of the Obligations consisting of principal with respect to the
Loans or (ii) shall fail to pay within three (3) Business Days of the date when
due any of the other Obligations under this Agreement or the other Loan
Documents.
(b) Breach of Certain Covenants. The Borrower shall fail duly and
punctually to perform or observe any agreement, covenant or obligation binding
on the Borrower under:
(i) Sections 6.1(C), 6.1(D), 6.1(E), 6.1(F), 6.1(G), 6.1(H),
6.1(I), 6.1(K), 6.2(B) or 6.2(F) and such failure shall continue unremedied
for fifteen (15) days;
(ii) Section 6.1(A), 6.1(B) or 6.1(J) and such failure shall
continue unremedied for five (5) Business Days; or
(iii) Section 6.3 or 6.4(B), 6.4(C), 6.4(D), 6.4(E) or 6.4(F).
(c) Breach of Representation or Warranty. Any representation or warranty
made or deemed made by the Borrower to the Agent, any Lender or any Issuing Bank
herein or by Holdings, the Borrower or any of its Subsidiaries in any of the
other Loan Documents or in any statement or certificate at any time given by any
such Person pursuant to any of the Loan Documents shall be false or misleading
in any material respect on the date as of which made (or deemed made).
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(d) Other Defaults. The Borrower shall default in the performance of or
compliance with any term contained in this Agreement (other than as covered by
paragraphs (a), (b) or (c) of this Section 7.1), or Holdings, the Borrower or
any of its Subsidiaries shall default in the performance of or compliance with
any term contained in any of the other Loan Documents, and such default shall
continue for thirty (30) days after the occurrence thereof.
(e) Default as to Other Indebtedness; Operating Leases. The Borrower or
any of its Subsidiaries shall fail to make any payment when due (whether by
scheduled maturity, required prepayment, acceleration, demand or otherwise) with
respect to any Indebtedness (other than the Obligations), the outstanding
principal amount of which Indebtedness is in excess of $1,000,000; or any
breach, default or event of default shall occur, or any other condition shall
exist under any instrument, agreement or indenture pertaining to any such
Indebtedness, if the effect thereof is to cause an acceleration, mandatory
redemption, a requirement that the Borrower offer to purchase such Indebtedness
or other required repurchase of such Indebtedness, or permit the holder(s) of
such Indebtedness to accelerate the maturity of any such Indebtedness or require
a redemption or other repurchase of such Indebtedness; or any such Indebtedness
shall be otherwise declared to be due and payable (by acceleration or otherwise)
or required to be prepaid, redeemed or otherwise repurchased by the Borrower or
any of its Subsidiaries (other than by a regularly scheduled required
prepayment) prior to the stated maturity thereof.
(f) Involuntary Bankruptcy; Appointment of Receiver, Etc.
(i) An involuntary case shall be commenced against Holdings, the
Borrower or any of the Borrower's Subsidiaries and the petition shall not
be dismissed, stayed, bonded or discharged within sixty (60) days after
commencement of the case; or a court having jurisdiction in the premises
shall enter a decree or order for relief in respect of Holdings, the
Borrower or any of the Borrower's Subsidiaries in an involuntary case,
under any applicable bankruptcy, insolvency or other similar law now or
hereinafter in effect; or any other similar relief shall be granted under
any applicable federal, state, local or foreign law.
(ii) A decree or order of a court having jurisdiction in the
premises for the appointment of a receiver, liquidator, sequestrator,
trustee, custodian or other officer having similar powers over Holdings,
the Borrower or any of the Borrower's Subsidiaries or over all or a
substantial part of the property of Holdings, the Borrower or any of the
Borrower's Subsidiaries shall be entered; or an interim receiver, trustee
or other custodian of Holdings, the Borrower or any of the Borrower's
Subsidiaries or of all or a substantial part of the property of Holdings,
the Borrower or any of the Borrower's Subsidiaries shall be appointed or a
warrant of attachment, execution or similar process against any substantial
part of the property of Holdings, the Borrower or any of the Borrower's
Subsidiaries shall be issued and any such event shall not be stayed,
dismissed, bonded or discharged within sixty (60) days after entry,
appointment or issuance.
(g) Voluntary Bankruptcy; Appointment of Receiver, Etc. Holdings, the
Borrower or any of the Borrower's Subsidiaries shall (i) commence a voluntary
case under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, (ii) consent to the entry of an order for relief in an
involuntary case, or to the conversion of an involuntary case to a voluntary
case, under
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any such law, (iii) consent to the appointment of or taking possession by a
receiver, trustee or other custodian for all or a substantial part of its
property, (iv) make any assignment for the benefit of creditors or (v) take any
corporate action to authorize any of the foregoing.
(h) Judgments and Attachments. Any money judgment(s) (other than a money
judgment covered by insurance as to which the insurance company has not
disclaimed or reserved the right to disclaim coverage), writ or warrant of
attachment, or similar process against the Borrower or any of its Subsidiaries
or any of their respective assets involving in any single case or in the
aggregate an amount in excess of $1,000,000 is (are) entered and shall remain
undischarged, unvacated, unbonded or unstayed for a period of sixty (60) days or
in any event later than fifteen (15) days prior to the date of any proposed sale
thereunder.
(i) Dissolution. Any order, judgment or decree shall be entered against
the Borrower decreeing its involuntary dissolution or split up and such order
shall remain undischarged and unstayed for a period in excess of sixty (60)
days; or the Borrower shall otherwise dissolve or cease to exist except as
specifically permitted by this Agreement.
(j) Loan Documents; Failure of Security. At any time, for any reason, (i)
any Loan Document as a whole that materially affects the ability of the Agent,
or any of the Lenders to enforce the Obligations or enforce their rights against
the Collateral ceases to be in full force and effect or Holdings, the Borrower
or any of the Borrower's Subsidiaries party thereto seeks to repudiate its
obligations thereunder and the Liens intended to be created thereby are, or
Holdings, the Borrower or any such Subsidiary seeks to render such Liens,
invalid and unperfected, or (ii) Liens on Collateral with a fair market value in
excess of $1,000,000 in favor of the Agent contemplated by the Loan Documents
shall, at any time, for any reason, be invalidated or otherwise cease to be in
full force and effect, or such Liens shall not have the priority contemplated by
this Agreement or the Loan Documents.
(k) Termination Event. Any Termination Event occurs which the Required
Lenders believe is reasonably likely to subject the Borrower to liability in
excess of $1,000,000.
(l) Waiver Application. The plan administrator of any Benefit Plan applies
under Section 412(d) of the Code for a waiver of the minimum funding standards
of Section 412(a) of the Code and the Agent believes that the substantial
business hardship upon which the application for the waiver is based is
reasonably likely to subject the Borrower to liability in excess of $1,000,000.
(m) Change of Control. A Change of Control shall occur.
(n) Interest Rate Agreements. Nonpayment by the Borrower of any obligation
under the any Interest Rate Agreements entered into with any Lender or the
breach by the Borrower of any term, provision or condition contained in any such
Interest Rate Agreements.
(o) Environmental Matters. The Borrower or any of its Subsidiaries shall
be the subject of any proceeding or investigation pertaining to (i) the Release
by the Borrower or any of its Subsidiaries of any Contaminant into the
environment, (ii) the liability of the Borrower or any of its Subsidiaries
arising from the Release by any other Person of any Contaminant into the
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environment, or (iii) any violation of any Environmental, Health or Safety
Requirements of Law by the Borrower or any of its Subsidiaries, where such
Release, liability or violation individually or when aggregated with all other
such Releases, liabilities and violations has or is reasonably likely to have a
Material Adverse Effect.
(p) Guarantor Revocation. Any guarantor of the Obligations shall terminate
or revoke any of its obligations under the applicable guarantee agreement or
breach any of the terms of such guarantee agreement.
(q) Failure of Subordination. The subordination provisions of the
documents and instruments evidencing any Permitted Subordinated Indebtedness
shall, at any time, be invalidated or otherwise cease to be in full force and
effect.
A Default shall be deemed "continuing" until cured or until waived in
writing in accordance with Section 8.3.
ARTICLE VIII: ACCELERATION, DEFAULTING LENDERS; WAIVERS, AMENDMENTS AND
REMEDIES
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8.1 Termination of Commitments; Acceleration. If any Default described in
Section 7.1(f) or 7.1(g) occurs with respect to the Borrower, the obligations of
the Lenders to make Loans hereunder and the obligation of the Agent to issue
Letters of Credit hereunder shall automatically terminate and the Obligations
shall immediately become due and payable without any election or action on the
part of the Agent or any Lender. If any other Default occurs, the Required
Lenders may terminate or suspend the obligations of the Lenders to make Loans
hereunder and the obligation of the Agent to issue Letters of Credit hereunder,
or declare the Obligations to be due and payable, or both, whereupon the
Obligations shall become immediately due and payable, without presentment,
demand, protest or notice of any kind, all of which the Borrower hereby
expressly waives.
8.2 Defaulting Lender. In the event that any Lender fails to fund its Pro
Rata Share of any Advance requested or deemed requested by the Borrower which
such Lender is obligated to fund under the terms of this Agreement (the funded
portion of such Advance being hereinafter referred to as a "Non Pro Rata Loan"),
until the earlier of such Lender's cure of such failure and the termination of
the Revolving Loan Commitments, the proceeds of all amounts thereafter repaid to
the Agent by the Borrower and otherwise required to be applied to such Lender's
share of all other Obligations pursuant to the terms of this Agreement shall be
advanced to the Borrower by the Agent on behalf of such Lender to cure, in full
or in part, such failure by such Lender, but shall nevertheless be deemed to
have been paid to such Lender in satisfaction of such other Obligations.
Notwithstanding anything in this Agreement to the contrary:
(i) the foregoing provisions of this Section 8.2 shall apply only
with respect to the proceeds of payments of Obligations and shall not
affect the conversion or continuation of Loans pursuant to Section 2.11;
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(ii) any such Lender shall be deemed to have cured its failure to
fund its Pro Rata Share of any Advance at such time as an amount equal to
such Lender's original Pro Rata Share of the requested principal portion of
such Advance is fully funded to the Borrower, whether made by such Lender
itself or by operation of the terms of this Section 8.2, and whether or not
the Non Pro Rata Loan with respect thereto has been repaid, converted or
continued;
(iii) amounts advanced to the Borrower to cure, in full or in part,
any such Lender's failure to fund its Pro Rata Share of any Advance ("Cure
Loans") shall bear interest at the rate applicable to Floating Rate Loans
in effect from time to time, and for all other purposes of this Agreement
shall be treated as if they were Floating Rate Loans;
(iv) regardless of whether or not a Default has occurred or is
continuing, and notwithstanding the instructions of the Borrower as to its
desired application, all repayments of principal which, in accordance with
the other terms of this Agreement, would be applied to the outstanding
Floating Rate Loans shall be applied first, ratably to all Floating Rate
Loans constituting Non Pro Rata Loans, second, ratably to Floating Rate
Loans other than those constituting Non Pro Rata Loans or Cure Loans and,
third, ratably to Floating Rate Loans constituting Cure Loans;
(v) for so long as and until the earlier of any such Lender's cure
of the failure to fund its Pro Rata Share of any Advance and the
termination of the Revolving Loan Commitments, the term "Required Lenders"
for purposes of this Agreement shall mean Lenders (excluding all Lenders
whose failure to fund their respective Pro Rata Shares of such Advance have
not been so cured) whose Pro Rata Shares represent equal to or greater than
sixty-six and two thirds percent (66-2/3%) of the aggregate Pro Rata Shares
of such Lenders; and
(vi) for so long as and until any such Lender's failure to fund its
Pro Rata Share of any Advance is cured in accordance with Section 8.2(ii),
(A) such Lender shall not be entitled to any commitment fees with respect
to its Revolving Loan Commitment and (B) such Lender shall not be entitled
to any letter of credit fees, which commitment fees and letter of credit
fees shall accrue in favor of the Lenders which have funded their
respective Pro Rata Share of such requested Advance, shall be allocated
among such performing Lenders ratably based upon their relative Revolving
Loan Commitments, and shall be calculated based upon the average amount by
which the aggregate Revolving Loan Commitments of such performing Lenders
exceeds the sum of (I) the outstanding principal amount of the Loans owing
to such performing Lenders, plus (II) the outstanding Reimbursement
Obligations owing to such performing Lenders, plus (III) the aggregate
participation interests of such performing Lenders arising pursuant to
Section 2.21 with respect to undrawn and outstanding Letters of Credit.
8.3 Amendments. Subject to the provisions of this Article VIII, the
Required Lenders (or the Agent with the consent in writing of the Required
Lenders) and the Borrower may enter into agreements supplemental hereto for the
purpose of adding or modifying any provisions to the Loan Documents or changing
in any manner the rights of the Lenders or the Borrower hereunder or
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waiving any Default hereunder; provided, however, that no such supplemental
agreement shall, without the consent of each Lender affected thereby:
(i) Postpone or extend the Revolving Credit Termination Date, the
Term Loan Termination Date or any other date fixed for any payment of
principal of, or interest on, the Loans, the Reimbursement Obligations or
any fees or other amounts payable to such Lender (except with respect to
any modifications of the provisions relating to prepayments of Loans and
other Obligations).
(ii) Reduce the principal amount of any Loans or L/C Obligations, or
reduce the rate or extend the time of payment of interest or fees thereon.
(iii) Reduce the percentage specified in the definition of Required
Lenders or any other percentage of Lenders specified to be the applicable
percentage in this Agreement to act on specified matters.
(iv) Increase the amount of the Revolving Loan Commitment of any
Lender hereunder (except with respect to an increase in the amount, or
other modification to the terms or components, of the Borrowing Base).
(v) Permit the Borrower to assign its rights under this Agreement.
(vi) Amend this Section 8.3.
(vii) Release all or substantially all of the Collateral.
No amendment of any provision of this Agreement relating to the Agent shall be
effective without the written consent of the Agent. The Agent may waive payment
of the fee required under Section 12.3(B) without obtaining the consent of any
of the Lenders.
8.4 Preservation of Rights. No delay or omission of the Lenders or the
Agent to exercise any right under the Loan Documents shall impair such right or
be construed to be a waiver of any Default or an acquiescence therein, and the
making of a Loan or the issuance of a Letter of Credit notwithstanding the
existence of a Default or the inability of the Borrower to satisfy the
conditions precedent to such Loan or issuance of such Letter of Credit shall not
constitute any waiver or acquiescence. Any single or partial exercise of any
such right shall not preclude other or further exercise thereof or the exercise
of any other right, and no waiver, amendment or other variation of the terms,
conditions or provisions of the Loan Documents whatsoever shall be valid unless
in writing signed by the Lenders required pursuant to Section 8.3, and then only
to the extent in such writing specifically set forth. All remedies contained in
the Loan Documents or by law afforded shall be cumulative and all shall be
available to the Agent and the Lenders until the Obligations have been paid in
full.
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ARTICLE IX: GENERAL PROVISIONS
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9.1 Survival of Representations. All representations and warranties of the
Borrower contained in this Agreement shall survive delivery of the Notes and the
making of the Loans herein contemplated.
9.2 Governmental Regulation. Anything contained in this Agreement to the
contrary notwithstanding, no Lender shall be obligated to extend credit to the
Borrower and the Agent shall not be obligated to issue any Letter of Credit for
the account of the Borrower in violation of any limitation or prohibition
provided by any applicable statute or regulation.
9.3 Performance of Obligations. The Borrower agrees that the Agent may,
but shall have no obligation to (i) at any time, pay or discharge taxes, liens,
security interests or other encumbrances levied or placed on or threatened
against any Collateral and (ii) after the occurrence and during the continuance
of a Default make any other payment or perform any act required of the Borrower
under any Loan Document or take any other action which the Agent in its
discretion deems necessary or desirable to protect or preserve the Collateral,
including, without limitation, any action to (y) effect any repairs or obtain
any insurance called for by the terms of any of the Loan Documents and to pay
all or any part of the premiums therefor and the costs thereof and (z) pay any
rents payable by the Borrower which are more than 30 days past due, or as to
which the landlord has given notice of termination, under any lease. The Agent
shall use its best efforts to give the Borrower notice of any action taken under
this Section 9.3 prior to the taking of such action or promptly thereafter
provided the failure to give such notice shall not affect the Borrower's
obligations in respect thereof. The Borrower agrees to pay the Agent, upon
demand, the principal amount of all funds advanced by the Agent under this
Section 9.3, together with interest thereon at the rate from time to time
applicable to Floating Rate Loans from the date of such advance until the
outstanding principal balance thereof is paid in full. If the Borrower fails to
make payment in respect of any such advance under this Section 9.3 within one
(1) Business Day after the date the Borrower receives written demand therefor
from the Agent, the Agent shall promptly notify each Lender and each Lender
agrees that it shall thereupon make available to the Agent, in dollars in
immediately available funds, the amount equal to such Lender's Pro Rata Share of
such advance. If such funds are not made available to the Agent by such Lender
within one (1) Business Day after the Agent's demand therefor, the Agent will be
entitled to recover any such amount from such Lender together with interest
thereon at the Effective Federal Funds Rate for each day during the period
commencing on the date of such demand and ending on the date such amount is
received. The failure of any Lender to make available to the Agent its Pro Rata
Share of any such unreimbursed advance under this Section 9.3 shall neither
relieve any other Lender of its obligation hereunder to make available to the
Agent such other Lender's Pro Rata Share of such advance on the date such
payment is to be made nor increase the obligation of any other Lender to make
such payment to the Agent. All outstanding principal of, and interest on,
advances made under this Section 9.3 shall constitute Obligations secured by the
Collateral until paid in full by the Borrower.
9.4 Headings. Section headings in the Loan Documents are for convenience
of reference only, and shall not govern the interpretation of any of the
provisions of the Loan Documents.
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9.5 Entire Agreement. The Loan Documents embody the entire agreement and
understanding among the Borrower, the Agent and the Lenders and supersede all
prior agreements and understandings among the Borrower, the Agent and the
Lenders relating to the subject matter thereof.
9.6 Several Obligations; Benefits of this Agreement. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other (except to the extent to which the
Agent is authorized to act as such). The failure of any Lender to perform any of
its obligations hereunder shall not relieve any other Lender from any of its
obligations hereunder. This Agreement shall not be construed so as to confer any
right or benefit upon any Person other than the parties to this Agreement and
their respective successors and assigns.
9.7 Expenses; Indemnification.
(A) Expenses. The Borrower shall reimburse the Agent for any reasonable
costs, internal charges and out-of-pocket expenses (including attorneys' and
paralegals' fees and time charges of attorneys and paralegals for the Agent,
which attorneys and paralegals may be employees of the Agent) paid or incurred
by the Agent in connection with the preparation, negotiation, execution,
delivery, syndication, review, amendment, modification, and administration of
the Loan Documents. The Borrower also agrees to reimburse the Agent and the
Lenders for any costs, internal charges and out-of-pocket expenses (including
attorneys' and paralegals' fees and time charges of attorneys and paralegals for
the Agent and the Lenders, which attorneys and paralegals may be employees of
the Agent or the Lenders) paid or incurred by the Agent or any Lender in
connection with the collection of the Obligations and enforcement of the Loan
Documents. In addition to expenses set forth above, the Borrower agrees to
reimburse the Agent, promptly after the Agent's request therefor, for each
audit, collateral analysis or other business analysis performed by or for the
benefit of the Lenders in connection with this Agreement or the other Loan
Documents in an amount equal to the Agent's then customary charges for each
person employed to perform such audit or analysis, plus all costs and expenses
(including without limitation, travel expenses) incurred by the Agent in the
performance of such audit or analysis. Agent shall provide the Borrower with a
detailed statement of all reimbursements requested under this Section.
(B) Indemnity. The Borrower further agrees to defend, protect, indemnify,
and hold harmless the Agent and each and all of the Lenders and each of their
respective Affiliates, and each of such Agent's, Lender's, or Affiliate's
respective officers, directors, employees, attorneys and agents (including,
without limitation, those retained in connection with the satisfaction or
attempted satisfaction of any of the conditions set forth in Article IV)
(collectively, the "Indemnitees") from and against any and all liabilities,
obligations, losses damages, penalties, actions, judgments, suits, claims,
costs, expenses of any kind or nature whatsoever (including, without limitation,
the fees and disbursements of counsel for such Indemnitees in connection with
any investigative, administrative or judicial proceeding, whether or not such
Indemnitees shall be designated a party thereto), imposed on, incurred by, or
asserted against such Indemnitees in any manner relating to or arising out of:
(i) this Agreement, the other Loan Documents or any of the Transaction
Documents, or any act, event or transaction related or attendant thereto,
the making of the Loans, and the issuance of and participation in Letters
of Credit hereunder, the management of such Loans
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or Letters of Credit, the use or intended use of the proceeds of the Loans
or Letters of Credit hereunder, or any of the other transactions
contemplated by the Transaction Documents; or
(ii) any liabilities, obligations, responsibilities, losses, damages,
personal injury, death, punitive damages, economic damages, consequential
damages, treble damages, intentional, willful or wanton injury, damage or
threat to the environment, natural resources or public health or welfare,
costs and expenses (including, without limitation, attorney, expert and
consulting fees and costs of investigation, feasibility or remedial action
studies), fines, penalties and monetary sanctions, interest, direct or
indirect, known or unknown, absolute or contingent, past, present or future
relating to violation of any Environmental, Health or Safety Requirements
of Law arising from or in connection with the past, present or future
operations of Holdings, the Borrower, its Subsidiaries or any of their
respective predecessors in interest, or, the past, present or future
environmental, health or safety condition of any respective property of the
Borrower or its Subsidiaries, the presence of asbestos-containing materials
at any respective property of the Borrower or its Subsidiaries or the
Release or threatened Release of any Contaminant into the environment
(collectively, the "Indemnified Matters");
provided, however, the Borrower shall have no obligation to an Indemnitee
hereunder with respect to Indemnified Matters caused solely by or resulting
solely from (y) a dispute among the Lenders or a dispute between any Lender and
the Agent, or (z) the willful misconduct or Gross Negligence of such Indemnitee
or breach of contract by such Indemnitee with respect to the Loan Documents, in
each case, as determined by the final non-appealed judgment of a court of
competent jurisdiction. To the extent that the undertaking to indemnify, pay and
hold harmless set forth in the preceding sentence may be unenforceable because
it is violative of any law or public policy, the Borrower shall contribute the
maximum portion which it is permitted to pay and satisfy under applicable law,
to the payment and satisfaction of all Indemnified Matters incurred by the
Indemnitees. In addition, no settlement shall be entered into by Holdings, the
Borrower or any if its Subsidiaries with respect to any claim, litigation,
arbitration or other proceeding relating to or arising out of the transaction
evidenced by this Agreement, the other Loan Documents or in connection with any
Permitted Acquisition (whether or not the Agent or any Lender or any Indemnitee
is a party thereto) unless such settlement releases all Indemnitees from any and
all liability with respect thereto.
(C) Waiver of Certain Claims. The Borrower further agrees to assert no
claim against any of the Indemnitees on any theory of liability for
consequential, special, indirect, exemplary or punitive damages.
(D) Survival of Agreements. The obligations and agreements of the
Borrower under this Section 9.7 shall survive the termination of this Agreement.
9.8 Numbers of Documents. All statements, notices, closing documents,
and requests hereunder shall be furnished to the Agent with sufficient
counterparts so that the Agent may furnish one to each of the Lenders.
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9.9 Accounting. Except as provided to the contrary herein, all accounting
terms used herein shall be interpreted and all accounting determinations
hereunder shall be made in accordance with Agreement Accounting Principles.
9.10 Severability of Provisions. Any provision in any Loan Document that
is held to be inoperative, unenforceable, or invalid in any jurisdiction shall,
as to that jurisdiction, be inoperative, unenforceable, or invalid without
affecting the remaining provisions in that jurisdiction or the operation,
enforceability, or validity of that provision in any other jurisdiction, and to
this end the provisions of all Loan Documents are declared to be severable.
9.11 Nonliability of Lenders. The relationship between the Borrower and
the Lenders and the Agent shall be solely that of borrower and lender. Neither
the Agent nor any Lender shall have any fiduciary responsibilities to the
Borrower. Neither the Agent nor any Lender undertakes any responsibility to the
Borrower to review or inform the Borrower of any matter in connection with any
phase of the Borrower's business or operations.
9.12 GOVERNING LAW. THE AGENT HEREBY ACCEPTS THIS AGREEMENT, ON BEHALF OF
ITSELF AND THE LENDERS, AT CHICAGO, ILLINOIS BY ACKNOWLEDGING AND AGREEING TO IT
THERE. ANY DISPUTE BETWEEN THE BORROWER AND THE AGENT, ANY LENDER, OR ANY OTHER
HOLDER OF SECURED OBLIGATIONS ARISING OUT OF, CONNECTED WITH, RELATED TO, OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH, THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, AND WHETHER ARISING IN CONTRACT,
TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH THE INTERNAL
LAWS (WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS) OF THE STATE OF
ILLINOIS.
9.13 CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.
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(A) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN SUBSECTION (B), EACH OF
THE PARTIES HERETO AGREES THAT ALL DISPUTES AMONG THEM ARISING OUT OF, CONNECTED
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS WHETHER
ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED EXCLUSIVELY
BY STATE OR FEDERAL COURTS LOCATED IN CHICAGO, ILLINOIS, BUT THE PARTIES HERETO
ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT
LOCATED OUTSIDE OF CHICAGO, ILLINOIS. EACH OF THE PARTIES HERETO WAIVES IN ALL
DISPUTES BROUGHT PURSUANT TO THIS SUBSECTION ANY OBJECTION THAT IT MAY HAVE TO
THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.
(B) OTHER JURISDICTIONS. THE BORROWER AGREES THAT THE AGENT, ANY LENDER
OR ANY HOLDER OF SECURED OBLIGATIONS SHALL HAVE THE RIGHT TO PROCEED AGAINST THE
BORROWER OR ITS PROPERTY IN A COURT IN ANY
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LOCATION TO ENABLE SUCH PERSON TO (1) OBTAIN PERSONAL JURISDICTION OVER THE
BORROWER OR (2) REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE
OBLIGATIONS OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF
SUCH PERSON. THE BORROWER AGREES THAT IT WILL NOT ASSERT ANY PERMISSIVE
COUNTERCLAIMS IN ANY PROCEEDING BROUGHT BY SUCH PERSON TO REALIZE ON THE
COLLATERAL OR ANY OTHER SECURITY FOR THE OBLIGATIONS OR TO ENFORCE A JUDGMENT OR
OTHER COURT ORDER IN FAVOR OF SUCH PERSON. THE BORROWER WAIVES ANY OBJECTION
THAT IT MAY HAVE TO THE LOCATION OF THE COURT IN WHICH SUCH PERSON HAS COMMENCED
A PROCEEDING DESCRIBED IN THIS SUBSECTION.
(C) SERVICE OF PROCESS. THE BORROWER WAIVES PERSONAL SERVICE OF ANY
PROCESS UPON IT AND, AS ADDITIONAL SECURITY FOR THE OBLIGATIONS, IRREVOCABLY
APPOINTS THE PRENTICE HALL CORPORATION SYSTEM, INC., THE BORROWER'S REGISTERED
AGENT, WHOSE ADDRESS IS 33 NORTH LASALLE STREET, SUITE 1925, CHICAGO, ILLINOIS
60602, AS THE BORROWER'S AGENT FOR THE PURPOSE OF ACCEPTING SERVICE OF PROCESS
ISSUED BY ANY COURT. THE BORROWER IRREVOCABLY WAIVES ANY OBJECTION (INCLUDING,
WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE OR BASED ON THE GROUNDS
OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF
ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH
IN ANY JURISDICTION SET FORTH ABOVE.
(D) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES
ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING
IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH. EACH OF THE PARTIES HERETO AGREES AND CONSENTS THAT ANY
SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A
COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(E) WAIVER OF BOND. THE BORROWER WAIVES THE POSTING OF ANY BOND OTHERWISE
REQUIRED OF ANY PARTY HERETO IN CONNECTION WITH ANY JUDICIAL PROCESS OR
PROCEEDING TO REALIZE ON THE COLLATERAL (INCLUDING, WITHOUT LIMITATION, THE REAL
PROPERTY COLLATERAL) OR ANY OTHER SECURITY FOR THE OBLIGATIONS OR TO ENFORCE ANY
JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF SUCH PARTY, OR TO ENFORCE BY
SPECIFIC
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PERFORMANCE, TEMPORARY RESTRAINING ORDER, PRELIMINARY OR PERMANENT INJUNCTION,
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT.
(F) ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH OTHER PARTY
HERETO THAT IT HAS DISCUSSED THIS AGREEMENT AND, SPECIFICALLY, THE PROVISIONS OF
THIS SECTION 9.13, WITH ITS COUNSEL.
9.14 Subordination of Intercompany Indebtedness. The Borrower agrees that
any and all claims of the Borrower against Alliance, any endorser or any other
guarantor of all or any part of the Secured Obligations, or against any of its
properties, including without limitation pursuant to the Intercompany Note or
Intercompany Security Agreement executed pursuant to Section 6.3(A)(iii), shall
be subordinate and subject in right of payment to the prior payment, in full and
in cash, of all Secured Obligations. Notwithstanding any right of the Borrower
to ask, demand, sue for, take or receive any payment from Alliance, all rights,
liens and security interests of the Borrower, whether now or hereafter arising
and howsoever existing, in any assets of Alliance (whether constituting part of
Collateral given to any Holder of Secured Obligations or the Agent to secure
payment of all or any part of the Secured Obligations or otherwise) shall be and
are subordinated to the rights of the Holders of Secured Obligations and the
Agent in those assets. The Borrower shall have no right to possession of any
such asset or to foreclose upon any such asset, whether by judicial action or
otherwise, unless and until all of the Secured Obligations (other than
contingent indemnity obligations) shall have been fully paid and satisfied and
all financing arrangements among the Borrowers and the Holders of Secured
Obligations have been terminated. If all or any part of the assets of Alliance,
or the proceeds thereof, are subject to any distribution, division or
application to the creditors of Alliance, whether partial or complete, voluntary
or involuntary, and whether by reason of liquidation, bankruptcy, arrangement,
receivership, assignment for the benefit of creditors or any other action or
proceeding, or if the business of Alliance is dissolved or if substantially all
of the assets of Alliance are sold, then, and in any such event (except as
otherwise required in connection with the BLN Acquisition and the Alliance
Sale), any payment or distribution of any kind or character, either in cash,
securities or other property, which shall be payable or deliverable upon or with
respect to any indebtedness of Alliance to the Borrower, including the
Intercompany Loans ("INTERCOMPANY INDEBTEDNESS") shall be paid or delivered
directly to the Agent for application on any of the Secured Obligations, due or
to become due, until such Secured Obligations (other than contingent indemnity
obligations) shall have first been fully paid and satisfied. The Borrower
irrevocably authorizes and empowers the Agent to demand, sue for, collect and
receive every such payment or distribution and give acquittance therefor and to
make and present for and on behalf of the Borrower such proofs of claim and take
such other action, in the Agent's own name or in the name of the Borrower or
otherwise, as the Agent may deem necessary or advisable for the enforcement of
this Section 9.14. The Agent may vote such proofs of claim in any such
proceeding, receive and collect any and all dividends or other payments or
disbursements made thereon in whatever form the same may be paid or issued and
apply the same on account of any of the Secured Obligations. Should any payment,
distribution, security or instrument or proceeds thereof be received by the
Borrower upon or with respect to the Intercompany Indebtedness prior to the
satisfaction of all of the Secured Obligations (other than contingent indemnity
obligations) and the termination of all financing arrangements among the
Borrowers and the Holders of Secured Obligations, the Borrower shall receive and
hold the same in trust, as trustee, for the benefit of the Holders of Secured
Obligations and shall forthwith deliver
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the same to the Agent, for the benefit of the Holders of Secured Obligations, in
precisely the form received (except for the endorsement or assignment of the
Borrower where necessary), for application to any of the Secured Obligations,
due or not due, and, until so delivered, the same shall be held in trust by the
Borrower as the property of the Holders of Secured Obligations. If the Borrower
fails to make any such endorsement or assignment to the Agent, the Agent or any
of its officers or employees are irrevocably authorized to make the same. The
Borrower agrees that until the Secured Obligations (other than the contingent
indemnity obligations) have been paid in full (in cash) and satisfied and all
financing arrangements among the Borrowers and the Holders of Secured
Obligations have been terminated, the Borrower will not assign or transfer to
any Person (other than the Agent) any claim the Borrower has or may have against
Alliance.
9.15 No Strict Construction. The parties hereto have participated jointly
in the negotiation and drafting of this Agreement and each of the other Loan
Documents. In the event an ambiguity or question of intent or interpretation
arises, this Agreement and the other Loan Documents shall be construed as if
drafted jointly by the parties hereto and no presumption or burden of proof
shall arise favoring or disfavoring any party by virtue of the authorship of any
provisions of this Agreement or the other Loan Documents.
ARTICLE X: THE AGENT
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10.1 Appointment. The First National Bank of Chicago is appointed by the
Lenders as the Agent hereunder and under each other Loan Document, and each of
the Lenders irrevocably authorizes the Agent to act as the contractual
representative of such Lender with the rights and duties expressly set forth
herein and in the other Loan Documents. The Agent agrees to act as such
contractual representative upon the express conditions contained in this Article
X. Notwithstanding the use of the defined term "Agent," it is expressly
understood and agreed that the Agent shall not have any fiduciary
responsibilities to any Lender by reason of this Agreement and that the Agent is
merely acting as the representative of the Lenders with only those duties as are
expressly set forth in this Agreement and the other Loan Documents. In its
capacity as the Lenders' contractual representative, the Agent (i) does not
assume any fiduciary duties to any of the Lenders, (ii) is a "representative" of
the Lenders within the meaning of Section 9-105 of the Uniform Commercial Code
and (iii) is acting as an independent contractor, the rights and duties of which
are limited to those expressly set forth in this Agreement and the other Loan
Documents. Each of the Lenders agrees to assert no claim against the Agent on
any agency theory or any other theory of liability for breach of fiduciary duty,
all of which claims each Lender waives.
10.2 Powers. The Agent shall have and may exercise such powers under the
Loan Documents as are specifically delegated to the Agent by the terms of each
thereof, together with such powers as are reasonably incidental thereto. The
Agent shall have no implied duties or fiduciary duties to the Lenders, or any
obligation to the Lenders to take any action hereunder or under any of the other
Loan Documents except any action specifically provided by the Loan Documents
required to be taken by the Agent.
10.3 General Immunity. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable to the Borrower, the Lenders or
any Lender for any action taken or omitted
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to be taken by it or them hereunder or under any other Loan Document or in
connection herewith or therewith except to the extent such action or inaction is
found in a final judgment by a court of competent jurisdiction to have arisen
solely from (i) the Gross Negligence or willful misconduct of such Person or
(ii) breach of contract by such Person with respect to the Loan Documents.
10.4 No Responsibility for Loans, Creditworthiness, Collateral, Recitals,
Etc. Neither the Agent nor any of its directors, officers, agents or employees
shall be responsible for or have any duty to ascertain, inquire into, or verify
(i) any statement, warranty or representation made in connection with any Loan
Document or any borrowing hereunder; (ii) the performance or observance of any
of the covenants or agreements of any obligor under any Loan Document; (iii) the
satisfaction of any condition specified in Article IV, except receipt of items
required to be delivered solely to the Agent; (iv) the existence or possible
existence of a Default or Unmatured Default or (v) the validity, effectiveness
or genuineness of any Loan Document or any other instrument or writing furnished
in connection therewith. The Agent shall not be responsible to any Lender for
any recitals, statements, representations or warranties herein or in any of the
other Loan Documents, for the perfection or priority of any of the Liens on any
of the Collateral, or for the execution, effectiveness, genuineness, validity,
legality, enforceability, collectibility, or sufficiency of this Agreement or
any of the other Loan Documents or the transactions contemplated thereby, or for
the financial condition of any guarantor of any or all of the Obligations,
Holdings, the Borrower or any of their respective Subsidiaries.
10.5 Action on Instructions of Lenders. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, hereunder and under any
other Loan Document in accordance with written instructions signed by the
Required Lenders, and such instructions and any action taken or failure to act
pursuant thereto shall be binding on all of the Lenders and on all holders of
Notes. The Agent shall be fully justified in failing or refusing to take any
action hereunder and under any other Loan Document unless it shall first be
indemnified to its satisfaction by the Lenders pro rata against any and all
liability, cost and expense that it may incur by reason of taking or continuing
to take any such action.
10.6 Employment of Agents and Counsel. The Agent may execute any of its
duties as Agent hereunder and under any other Loan Document by or through
employees, agents, and attorney-in-fact and shall not be answerable to the
Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Agent shall be entitled to advice of
counsel concerning the contractual arrangement between the Agent and the Lenders
and all matters pertaining to the Agent's duties hereunder and under any other
Loan Document.
10.7 Reliance on Documents; Counsel. The Agent shall be entitled to rely
upon any Note, notice, consent, certificate, affidavit, letter, telegram,
statement, paper or document believed by it to be genuine and correct and to
have been signed or sent by the proper person or persons, and, in respect to
legal matters, upon the opinion of counsel selected by the Agent, which counsel
may be employees of the Agent.
10.8 Agent's Reimbursement and Indemnification. The Lenders agree to
reimburse and indemnify the Agent ratably in proportion to their respective
Revolving Loan Commitment (i) for
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any amounts not reimbursed by the Borrower for which the Agent is entitled to
reimbursement by the Borrower under the Loan Documents, (ii) for any other
expenses incurred by the Agent on behalf of the Lenders, in connection with the
preparation, execution, delivery, administration and enforcement of the Loan
Documents including as a result of a dispute among the Lenders or between any
Lender and the Agent and (iii) for any liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind and nature whatsoever which may be imposed on, incurred by or
asserted against the Agent in any way relating to or arising out of the Loan
Documents or any other document delivered in connection therewith or the
transactions contemplated thereby, or the enforcement of any of the terms
thereof or of any such other documents, including as a result of a dispute among
the Lenders or between any Lender and the Agent, provided that no Lender shall
be liable for any of the foregoing to the extent any of the foregoing is found
in a final non-appealable judgment by a court of competent jurisdiction to have
arisen solely from the Gross Negligence or willful misconduct of the Agent.
10.9 Rights as a Lender. With respect to its Revolving Loan Commitment,
Loans made by it and the Notes issued to it, the Agent shall have the same
rights and powers hereunder and under any other Loan Document as any Lender and
may exercise the same as through it were not the Agent, and the term "Lender" or
"Lenders" shall, unless the context otherwise indicates, include the Agent in
its individual capacity. The Agent may accept deposits from, lend money to,
enter into Interest Rate Agreements and generally engage in any kind of trust,
debt, equity or other transaction, in addition to those contemplated by this
Agreement or any other Loan Document, with the Borrower or any of its
Subsidiaries in which the Borrower or such Subsidiary is not restricted hereby
from engaging with any other Person.
10.10 Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent or any other Lender and based
on the financial statements prepared by Holdings and the Borrower and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and the other Loan Documents.
Each Lender also acknowledges that it will, independently and without reliance
upon the 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 credit
decisions in taking or not taking action under this Agreement and the other Loan
Documents.
10.11 Successor Agent. The Agent may resign at any time by giving written
notice thereof to the Lenders and the Borrower, and the Agent may be removed at
any time with or without cause by written notice received by the Agent from the
Required Lenders. Upon any such resignation or removal, the Required Lenders
shall have the right to appoint, on behalf of the Borrower and the Lenders, a
successor Agent. If no successor Agent shall have been so appointed by the
Required Lenders and shall have accepted such appointment within thirty days
after the retiring Agent's giving notice of resignation, then the retiring Agent
may appoint, on behalf of the Borrower and the Lenders, a successor Agent.
Notwithstanding anything herein to the contrary, so long as no Default has
occurred and is continuing, each such successor Agent shall be subject to
approval by the Borrower, which approval shall not be unreasonably withheld.
Such successor Agent shall be a commercial bank having capital and retained
earnings of at least $50,000,000. Upon the acceptance of any appointment as
Agent hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Agent,
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and the retiring Agent shall be discharged from its duties and obligations
hereunder and under the other Loan Documents. After any retiring Agent's
resignation hereunder as Agent, the provisions of this Article X 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 Agent hereunder and under the other Loan
Documents.
10.12 Collateral Documents. Each Lender hereby authorizes the Agent to
enter into each of the Collateral Documents to which it is a party and to take
all action contemplated by such documents. Each Lender agrees that no Lender
shall have the right individually to seek to realize upon the security granted
by any Collateral Document, it being understood and agreed that such rights and
remedies may be exercised solely by the Agent for the benefit of the Holders of
Secured Obligations upon the terms of the Collateral Documents. Each Lender
hereby authorizes the Agent to release its security interests in the assets of
Alliance being acquired by Bio-Lab pursuant to the Alliance Sale Agreement, such
release to be effective upon the consummation of the Alliance Sale.
ARTICLE XI: SETOFF; RATABLE PAYMENTS
-------------------------------------
11.1 Setoff. In addition to, and without limitation of, any rights of the
Lenders under applicable law, if any Default occurs and is continuing, any
indebtedness from any Lender to the Borrower (including all account balances,
whether provisional or final and whether or not collected or available) may be
offset and applied toward the payment of the Obligations owing to such Lender,
whether or not the Obligations, or any part hereof, shall then be due.
11.2 Ratable Payments. If any Lender, whether by setoff or otherwise, has
payment made to it upon its Loans (other than payments received pursuant to
Sections 3.1, 3.2 or 3.4) in a greater proportion than that received by any
other Lender, such Lender agrees, promptly upon demand, to purchase a portion of
the Loans held by the other Lenders so that after such purchase each Lender will
hold its ratable proportion of Loans. If any Lender, whether in connection with
setoff or amounts which might be subject to setoff or otherwise, receives
collateral or other protection for its Obligation or such amounts which may be
subject to setoff, such Lender agrees, promptly upon demand, to take such action
necessary such that all Lenders share in the benefits of such collateral ratably
in proportion to the obligations owing to them. In case any such payment is
disturbed by legal process, or otherwise, appropriate further adjustments shall
be made.
11.3 Application of Payments. Subject to the provisions of Section 8.2,
the Agent shall, unless otherwise specified at the direction of the Required
Lenders which direction shall be consistent with the last sentence of this
Section 11.3, apply all payments and prepayments in respect of any Obligations
and all proceeds of Collateral in the following order:
(A) first, to pay interest on and then principal of any portion of
the Loans which the Agent may have advanced on behalf of any Lender for
which the Agent has not then been reimbursed by such Lender or the
Borrower;
(B) second, to pay interest on and then principal of any advance made
under Section 9.3 for which the Agent has not then been paid by the
Borrower or reimbursed by the Lenders;
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(C) third, to pay Obligations in respect of any fees, expense
reimbursements or indemnities then due to the Agent;
(D) fourth, to pay Obligations in respect of any fees, expenses,
reimbursements or indemnities then due to the Lenders and the issuer(s) of
Letters of Credit;
(E) fifth, to pay interest due in respect of Loans and L/C
Obligations;
(F) sixth, to the ratable payment or prepayment of principal
outstanding on Loans, Reimbursement Obligations and Rate Hedging
Obligations in such order as the Agent may determine in its sole
discretion;
(G) seventh, to provide required cash collateral if any pursuant to
Section 2.24; and
(H) eighth, to the ratable payment of all other Obligations.
Unless otherwise designated (which designation shall only be applicable prior to
the occurrence of a Default) by the Borrower, all principal payments in respect
of Loans shall be applied first, to the outstanding Revolving Loans and, second,
to the outstanding Term Loans, in each case, first, to repay outstanding
Floating Rate Loans, and then to repay outstanding Eurodollar Loans with those
Eurodollar Loans which have earlier expiring Interest Periods being repaid prior
to those which have later expiring Interest Periods. The order of priority set
forth in this Section 11.3 and the related provisions of this Agreement are set
forth solely to determine the rights and priorities of the Agent, the Lenders,
the issuer(s) of Letters of Credit and other Holders of Secured Obligations as
among themselves. The order of priority set forth in clauses (D) through (H) of
this Section 11.3 may at any time and from time to time be changed by the
Required Lenders without necessity of notice to or consent of or approval by the
Borrower, or any other Person. The order of priority set forth in clauses (A)
through (C) of this Section 11.3 may be changed only with the prior written
consent of the Agent.
11.4 Relations Among Lenders.
(a) Except with respect to the exercise of set-off rights of any
Lender in accordance with Section 11.1, the proceeds of which are applied in
accordance with this Agreement, and except as set forth in the following
sentence, each Lender agrees that it will not take any action, nor institute any
actions or proceedings, against the Borrower or any other obligor hereunder or
with respect to any Collateral or Loan Document, without the prior written
consent of the Required Lenders or, as may be provided in this Agreement or the
other Loan Documents, at the direction of the Agent.
(b) The Lenders are not partners or co-venturers, and no Lender shall
be liable for the acts or omissions of, or (except as otherwise set forth herein
in case of the Agent) authorized to act for, any other Lender. Notwithstanding
the foregoing, and subject to Section 11.2, any Lender shall have the right to
enforce on an unsecured basis the payment of the principal of and interest on
any Loan made by it after the date such principal or interest has become due and
payable pursuant to the terms of this Agreement.
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ARTICLE XII: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
---------------------------------------------------------------
12.1 Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower and the
Lenders and their respective successors and assigns, except that (i) the
Borrower shall not have the right to assign its rights or obligations under the
Loan Documents and (ii) any assignment by any Lender must be made in compliance
with Section 12.3 hereof. Notwithstanding clause (ii) of this Section, any
Lender may at any time, without the consent of the Borrower or the Agent, assign
all or any portion of its rights under this Agreement and its Notes to a Federal
Reserve Bank; provided, however, that no such assignment shall release the
transferor Lender from its obligations hereunder. The Agent may treat the payee
of any Note as the owner thereof for all purposes hereof unless and until such
payee complies with Section 12.3 hereof in the case of an assignment thereof or,
in the case of any other transfer, a written notice of the transfer is filed
with the Agent. Any assignee or transferee of a Note agrees by acceptance
thereof to be bound by all the terms and provisions of the Loan Documents. Any
request, authority or consent of any Person, who at the time of making such
request or giving such authority or consent is the holder of any Note, shall be
conclusive and binding on any subsequent holder, transferee or assignee of such
Note or of any Note or Notes issued in exchange therefor.
12.2 Participations.
--------------
(A) Permitted Participants; Effect. Any Lender may, in the ordinary
course of its business and in accordance with applicable law, at any time sell
to one or more banks or other entities ("Participants") participating interests
in any Loan owing to such Lender, any Note held by such Lender, any Revolving
Loan Commitment of such Lender, any L/C Interest of such Lender or any other
interest of such Lender under the Loan Documents on a pro-rata or non pro-rata
basis; provided that the amount of such participation shall not be for less than
$5,000,000 (provided such amount may be reduced after the occurrence of a
Default without the consent of the Borrower by the Agent and the Required
Lenders). In the event of any such sale by a Lender of participating interests
to a Participant, such Lender's obligations under the Loan Documents shall
remain unchanged, such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, such Lender shall remain
the holder of any such Note for all purposes under the Loan Documents, all
amounts payable by the Borrower under this Agreement shall be determined as if
such Lender had not sold such participating interests, and the Borrower and the
Agent shall continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under the Loan Documents except that,
for purposes of Article III hereof, the Participants shall be entitled to the
same rights as if they were Lenders.
(B) Voting Rights. Each Lender shall retain the sole right to approve,
without the consent of any Participant, any amendment, modification or waiver of
any provision of the Loan Documents other than any amendment, modification or
waiver with respect to any Loan or Commitment in which such Participant has an
interest which forgives principal, interest or fees or reduces the interest rate
or fees payable pursuant to the terms of this Agreement with respect to any such
Loan or Revolving Loan Commitment, postpones any date fixed for any regularly-
scheduled payment of principal of, or interest or fees on, any such Loan or
Revolving Loan Commitment, or releases all or substantially all of the
Collateral, if any, securing any such Loan.
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(C) Benefit of Setoff. The Borrower agrees that each Participant shall be
deemed to have the right of setoff provided in Section 11.1 hereof in respect to
its participating interest in amounts owing under the Loan Documents to the same
extent as if the amount of its participating interest were owing directly to it
as a Lender under the Loan Documents, provided that each Lender shall retain the
right of setoff provided in Section 11.1 hereof with respect to the amount of
participating interests sold to each Participant except to the extent such
Participant exercises its right of set off. The Lenders agree to share with each
Participant, and each Participant, by exercising the right of setoff provided in
Section 11.1 hereof, agrees to share with each Lender, any amount received
pursuant to the exercise of its right of setoff, such amounts to be shared in
accordance with Section 11.2 as if each Participant were a Lender.
12.3 Assignments.
-----------
(A) Permitted Assignments. Any Lender may, in the ordinary course of its
business and in accordance with applicable law, at any time assign to one or
more banks or other entities ("Purchasers") all or a portion of its rights and
obligations under this Agreement (including, without limitation, its Revolving
Loan Commitment, all Loans owing to it, all of its participation interests in
existing Letters of Credit, and its obligation to participate in additional
Letters of Credit hereunder) in accordance with the provisions of this Section
12.3. Each assignment shall be of a constant, and not a varying, ratable
percentage of all of the assigning Lender's rights and obligations under this
Agreement. Such assignment shall be substantially in the form of Exhibit E
hereto and shall not be permitted hereunder unless such assignment is either for
all of such Lender's rights and obligations under the Loan Documents or involves
loans and commitments in an aggregate amount of at least $5,000,000 (provided
such amount shall not apply to an assignment to a Lender and may be reduced
after the occurrence of a Default without the consent of the Borrower by the
Agent and the Required Lenders). The consent of the Agent shall be required
prior to an assignment becoming effective with respect to a Purchaser which is
not a Lender or an Affiliate thereof. Such consent shall be substantially in the
form attached as Appendix I to Exhibit E hereto and shall not be unreasonably
withheld.
(B) Effect; Effective Date. Upon (i) delivery to the Agent of a notice of
assignment, substantially in the form attached as Appendix II to Exhibit E
hereto (a "Notice of Assignment"), together with any consents required by
Section 12.3.(A) hereof, and (ii) payment of a $3,500 fee to the Agent for
processing such assignment, such assignment shall become effective on the
effective date specified in such Notice of Assignment. The Notice of Assignment
shall contain a representation by the Purchaser to the effect that none of the
consideration used to make the purchase of the Revolving Loan Commitment, Loans
and L/C Obligations under the applicable assignment agreement are "plan assets"
as defined under ERISA and that the rights and interests of the Purchaser in and
under the Loan Documents will not be "plan assets" under ERISA. On and after the
effective date of such assignment, such Purchaser, if not already a Lender,
shall for all purposes be a Lender party to this Agreement and any other Loan
Documents executed by the Lenders and shall have all the rights and obligations
of a Lender under the Loan Documents, to the same extent as if it were an
original party hereto, and no further consent or action by the Borrower, the
Lenders or the Agent shall be required to release the transferor Lender with
respect to the percentage of the Aggregate Revolving Loan Commitment, Loans and
Letter of Credit participations assigned to such Purchaser. Upon the
consummation of any assignment to a Purchaser pursuant to
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this Section 12.3(B), the transferor Lender, the Agent and the Borrower shall
make appropriate arrangements so that replacement Notes are issued to such
transferor Lender and new Notes or, as appropriate, replacement Notes, are
issued to such Purchaser, in each case in principal amounts reflecting their
Revolving Loan Commitment and their Term Loans, as adjusted pursuant to such
assignment.
(C) The Register. The Agent shall maintain at its address referred to in
Section 13.1 a copy of each assignment delivered to and accepted by it pursuant
to this Section 12.3 and a register (the "Register") for the recordation of the
names and addresses of the Lenders and the Revolving Loan Commitment of and
principal amount of the Loans owing to, each Lender from time to time and
whether such Lender is an original Lender or the assignee of another Lender
pursuant to an assignment under this Section 12.3. The entries in the Register
shall be conclusive and binding for all purposes, absent manifest error, and the
Borrower and each of its Subsidiaries, the Agent and the Lenders may treat each
Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
12.4 Confidentiality. Subject to Section 12.5, the Agent and the Lenders
shall hold all nonpublic information obtained pursuant to the requirements of
this Agreement and identified as such by the Borrower in accordance with such
Person's customary procedures for handling confidential information of this
nature and in accordance with safe and sound banking practices and in any event
may make disclosure reasonably required by a prospective "Transferee" (as
defined in Section 12.5) in connection with the contemplated participation or
assignment or as required or requested by any Governmental Authority or
representative thereof or pursuant to legal process and shall require any such
Transferee to agree (and require any of its Transferees to agree) to comply with
this Section 12.4. In no event shall the Agent or any Lender be obligated or
required to return any materials furnished by the Borrower; provided, however,
each prospective Transferee shall be required to agree that if it does not
become a participant or assignee it shall return all materials furnished to it
by or on behalf of the Borrower in connection with this Agreement.
12.5 Dissemination of Information. The Borrower authorizes each Lender to
disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "Transferee") and any
prospective Transferee any and all information in such Lender's possession
concerning the Holdings, the Borrower and its Subsidiaries and the Collateral;
provided that, prior to any such disclosure, such prospective Transferee shall
agree to preserve in accordance with Section 12.4 the confidentiality of any
confidential information described therein.
ARTICLE XIII: NOTICES
----------------------
13.1 Giving Notice. Except as otherwise permitted by Section 2.14 with
respect to borrowing notices, all notices and other communications provided to
any party hereto under this Agreement or any other Loan Documents shall be in
writing or by telex or by facsimile and addressed or delivered to such party at
its address set forth below its signature hereto or at such other address as may
be designated by such party in a notice to the other parties. Any notice, if
mailed
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and properly addressed with postage prepaid, shall be deemed given when
received; any notice, if transmitted by telex or facsimile, shall be deemed
given when transmitted (answerback confirmed in the case of telexes); or, if by
courier, one (1) business day after deposit with a reputable overnight carrier
service with all charges paid or provided for.
13.2 Change of Address. The Borrower, the Agent and any Lender may each
change the address for service of notice upon it by a notice in writing to the
other parties hereto.
ARTICLE XIV: COUNTERPARTS
--------------------------
This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one agreement, and any of the parties hereto may
execute this Agreement by signing any such counterpart. This Agreement shall be
effective when it has been executed by the Borrower, the Agent and the Lenders
and each party as notified the Agent by telex or telephone, that it has taken
such action.
IN WITNESS WHEREOF, the Borrower, the Lenders and the Agent have executed
this Agreement as of the date first above written.
SOUTH CENTRAL POOL SUPPLY, INC.
By:_________________________________
Title:________________________________
Address:
128 Northpark Boulevard
Covington, LA 70433-5070
Attention: Maurice VanDyke
Facsimile: 504/892-1657
Confirmation: 504/892-5521
Term Loan Commitment THE FIRST NATIONAL BANK OF CHICAGO,
- -------------------- Individually and as Agent
$6,190,417.08
By:_________________________________
Title:________________________________
Address:
The First National Bank of Chicago, as Agent
One First National Plaza
Suite 0173
Chicago, Illinois 60670
Attention: J. Garland Smith
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Telephone No.: 312/732-2735
Facsimile No.: 312/732-1117
SIGNATURE PAGE TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
103
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Term Loan Commitment LASALLE NATIONAL BANK, as a Lender
- --------------------
$4,781,694.80
By: _________________________________
Title:________________________________
Address:
120 South LaSalle Street
Suite 210
Chicago, Illinois 60603
Attention: James C. Tucker
Telephone No.: 312-904-4970
Facsimile No.: 312-904-6189
HIBERNIA NATIONAL BANK, as a Lender
$4,702,333.67
By:_________________________________
Title:________________________________
Total $15,674,445.55 Address:
313 Carondelet Street
6th Floor
New Orleans, LA 70130
Attention: Steve C. Hemperley
Telephone No.: 504-533-2895
Facsimile No.: 504-533-2060
SIGNATURE PAGE TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
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EXHIBIT 10.3
ASSET PURCHASE AGREEMENT
by and among
ALLIANCE PACKAGING, INC.,
SCP POOL CORPORATION,
SOUTH CENTRAL POOL SUPPLY, INC.
and
BIO-LAB, INC.
September 26, 1996
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
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<S> <C>
ARTICLE I PURCHASE AND SALE OF THE ASSETS................................. 1
1.1 Asset Purchase..................................................... 1
1.2 Purchase Price..................................................... 4
1.3 Inventory.......................................................... 5
1.4 Closing Transactions............................................... 6
ARTICLE II COVENANTS PRIOR TO CLOSING..................................... 7
2.1 Affirmative Covenants of Seller.................................... 7
2.2 Negative Covenants of Seller....................................... 7
2.3 Exclusivity........................................................ 8
ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLER...................... 9
3.1 Organization and Corporate Power................................... 9
3.2 Authorization of Transactions...................................... 9
3.3 Subsidiaries; Investments.......................................... 9
3.4 Absence of Conflicts............................................... 9
3.5 Financial Statements............................................... 10
3.6 Absence of Undisclosed Liabilities................................. 10
3.7 Absence of Certain Developments.................................... 11
3.8 Title to Properties................................................ 12
3.9 Environmental and Safety Matters................................... 13
3.10 Taxes.............................................................. 14
3.11 Contracts and Commitments.......................................... 15
3.12 Litigation; Proceedings............................................ 16
3.13 Brokerage.......................................................... 16
3.14 Governmental Licenses, Permits and Consents........................ 16
3.15 Employees.......................................................... 16
3.16 Employee Benefit Plans............................................. 16
3.17 Affiliate Transactions............................................. 17
3.18 Compliance with Laws............................................... 17
3.19 Inventory.......................................................... 17
3.20 Closing Date....................................................... 18
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF BUYER........................ 18
4.1 Corporate Organization and Power................................... 18
4.2 Authorization...................................................... 18
4.3 No Violation....................................................... 18
4.4 Governmental Authorities and Consents.............................. 18
4.5 Brokerage.......................................................... 19
4.6 Closing Date....................................................... 19
</TABLE>
i
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
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<S> <C>
ARTICLE V TERMINATION..................................................... 19
5.1 Termination........................................................ 19
5.2 Effect of Termination.............................................. 19
ARTICLE VI SURVIVAL; INDEMNIFICATION...................................... 19
6.1 Survival; Etc...................................................... 19
6.2 Indemnification.................................................... 19
6.3 General Qualifications on Indemnification.......................... 22
6.4 Arbitration Procedure.............................................. 23
6.5 Remedies........................................................... 23
ARTICLE VII ADDITIONAL AGREEMENTS......................................... 24
7.1 Employees and Employee Benefit Plans............................... 24
7.2 Press Releases and Announcements................................... 25
7.3 Further Agreements and Transfers................................... 25
7.4 Tax Matters........................................................ 25
7.5 Transition Assistance.............................................. 26
7.6 Investigation and Confidentiality.................................. 26
7.7 Expenses........................................................... 27
7.8 Waiver of Compliance with Bulk Sales Laws.......................... 27
7.9 Prorations......................................................... 27
7.10 Guaranty........................................................... 28
7.11 Operating Losses and Net Income.................................... 28
7.12 Asset Removal Damage............................................... 29
7.13 Misdirected Remittances............................................ 29
7.14 Costs to Restore Leased Premises................................... 30
7.15 Other Reimbursements............................................... 30
7.16 FIFRA.............................................................. 31
ARTICLE VIII MISCELLANEOUS................................................ 31
8.1 Amendment and Waiver............................................... 31
8.2 Notices............................................................ 31
8.3 Binding Agreement; Assignment...................................... 33
8.4 Severability....................................................... 33
8.5 No Strict Construction............................................. 33
8.6 Captions and Headings.............................................. 33
8.7 Entire Agreement................................................... 33
8.8 Counterparts....................................................... 33
8.9 Governing Law...................................................... 34
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TABLE OF CONTENTS
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8.10 Parties in Interest............................................... 34
ARTICLE IX CERTAIN DEFINITIONS............................................ 34
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ASSET PURCHASE AGREEMENT
AGREEMENT made as of September 26, 1996 by and among Alliance Packaging,
Inc., a Delaware corporation ("Seller"), Bio-Lab, Inc., a Delaware corporation
("Buyer"), and, for purposes of Section 7.10 only, SCP Pool Corporation, a
Delaware corporation ("SCP Pool"), and South Central Pool Supply, Inc., a
Delaware corporation ("SCP"). Certain capitalized terms used herein are defined
in Article IX hereof.
Subject to the terms and conditions set forth in this Agreement, Buyer
desires to acquire from Seller and Seller desires to sell to Buyer certain of
its assets used in its business or operations and certain of Seller's related
liabilities as specifically provided herein. The business of Seller as
presently conducted, which generally is the conversion, reformulating,
tableting, blending and repackaging of swimming pool and spa chemicals, is
hereinafter referred to as the "Business."
Seller and Buyer acknowledge that, from the date of this Agreement until
the Closing Date, Seller will be reducing its production in preparation for the
transfer of certain assets to Buyer pursuant to this Agreement, and that such
reduction of production will be conducted pursuant to the plan described in
Exhibit A attached hereto (the "Transition Plan").
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF THE ASSETS
--------------------------------
1.1 ASSET PURCHASE.
---------------
(a) Purchased Assets. On the terms and subject to the conditions set forth
in this Agreement, at the Closing (as defined in Section 1.4 below), Buyer shall
purchase from Seller, and Seller shall sell, convey, assign, transfer and
deliver to Buyer, all properties, assets, rights and interests of every kind and
nature, whether tangible or intangible, wherever located and by whomever
possessed, owned by Seller as of the Closing Date (as defined in Section 1.4
below), but excluding all Excluded Assets as defined in subsection (b) below
(the "Purchased Assets"), free and clear of all Liens including, without
limitation, the following:
(i) subject to the provisions of Section 1.1(b)(iv) below, all raw
material, work in process and finished goods inventory which complies (or, with
appropriate notice given to the United States Environmental Protection Agency
pursuant to applicable requirements under the Federal Insecticide, Fungicide and
Rodenticide Act, would comply) with the representations and warranties set forth
in Section 3.19(b) and (c) of this Agreement (the "Inventory");
(ii) subject to the provisions of Section 1.1(b)(iv) below, all fixed
assets, including machinery, equipment, tooling and dies, trucks, tractors,
trailers, tools, spare
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parts, supplies, pallet racks, office furniture, copiers, fax machines,
telephone systems, computer equipment, chemical lab equipment and other
tangible personal property;
(iii) all cleaning, office and printing supplies, catalogs, and other
trade literature;
(iv) subject to the provisions of Section 1.1(b)(v) below, all
rights existing under the leases, contracts, licenses, supply and
distribution agreements, sales and purchase orders and agreements and other
agreements;
(v) all goodwill as a going concern of Seller, and all goodwill
associated with the Purchased Assets;
(vi) $89,521 of Seller's Organizational Costs;
(vii) all lists and records pertaining to customers, suppliers,
distributors and agents and all computer programs; and
(viii) subject to the provisions of Section 1.1(b)(xi) below, all
creative materials (including, without limitation, photographs, films, art
work, color separations and the like), advertising and promotional
materials and all other printed or written materials.
(b) Excluded Assets. Notwithstanding the foregoing, the following as
(the "Excluded Assets") are expressly excluded from the purchase and sale
contemplated hereby and, as such, are not Purchased Assets:
(i) all cash and cash equivalents, bank deposits and marketable and
other investment securities;
(ii) all of Seller's rights in real property;
(iii) the properties and assets listed on Schedule 1.1(b)(iii)
attached hereto;
(iv) all raw material, work in process, finished goods inventory,
tooling, spare parts, components and packing which is exclusively related
to Seller's chemical feeder products;
(v) all rights under the contracts, leases and agreements listed on
Schedule 1.1(b)(v) attached hereto ("Excluded Agreements");
(vi) all prepayments, prepaid expenses, deposits and other tangible
prepaid assets;
(vii) except as otherwise provided in Section 1.1(a)(vi) above, all
intangible property, including without limitation all of the following
which are owned by or licensed to Seller, together with all income,
royalties, damages and payments due or payable as of the Closing or
thereafter: patents, patent applications and inventions and any reissue,
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continuation, continuation-in-part, division, extension or reexamination
thereof; trademarks, service marks, trade dress, logos, trade names and
corporate names, together with all goodwill associated therewith and
adaptions and deviations thereof (including, without limitation, the
"Alliance Packaging, Inc.", "Regal", "Clear Choice" and "EZ-Clor"
trademarks and trade names); copyrights; and all registrations,
applications and renewals for any of the foregoing; trade secrets and
confidential and proprietary information (including, ideas, know-how,
drawings, sketches, patterns, specifications and designs) (collectively,
"Proprietary Rights");
(viii) all accounts and notes receivable and other evidence of
indebtedness and rights to receive payments arising out of sales occurring
in the conduct of the Business prior to the Closing Date and actions or
proceedings commenced in connection therewith in existence as of the
Closing Date (the "Accounts Receivable");
(ix) all franchises, approvals, permits, licenses, orders,
registrations, certificates, variances, and similar rights obtained from
governments and governmental agencies, including without limitation, those
obtained pursuant to Environmental and Safety Requirements;
(x) subject to the provisions of Section 7.13 below, all rights to
receive and retain mail and other communications;
(xi) all advertising and promotional materials relating to Seller's
chemical feeder products and to all of Seller's "Regal", "Clear Choice" and
"EZ-Clor" brand products;
(xii) all lists and records pertaining to personnel and all other
books, ledgers, files, documents, correspondence, drawings and
specifications, and business records of every kind and nature;
(xiii) all monies to be received by Seller from Buyer and all other
rights of Seller under this Agreement; and
(xiv) Seller's corporate charter and all qualifications of Seller to
conduct business as a foreign corporation, arrangements with registered
agents relating to foreign qualifications, taxpayer and other
identification numbers, seals, minute books, stock transfer books and blank
stock certificates and other documents relating to the organization,
maintenance and existence of Seller as a corporation.
(c) Assumed Liabilities. On the terms and subject to the conditions
specified in this Agreement, at the Closing, Buyer will assume and agree to pay,
perform and discharge when due, subject to Buyer's right to dispute the
obligations in good faith, all of the Seller's obligations under the agreements,
leases, contracts and commitments marked with an asterisk (*) on Schedule 3.11
attached hereto (the "Assumed Contracts"), and under sales and purchase orders
entered into in the ordinary course of business consistent with the Transition
Plan which can be filled with the Inventory purchased hereunder (other than
obligations resulting from, arising out of,
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relating to, in the nature of, or caused by, breach of contract, breach of
warranty, tort, infringement or violation of law relating to facts or
circumstances existing prior to the Closing Date), but in each case only to the
extent that such agreements, leases, contracts, commitments and sales and
purchase orders constitute Purchased Assets and have been validly assigned to
Buyer hereunder or Buyer is otherwise able to assume the benefits thereof
(collectively, the "Assumed Liabilities"). At least 2 and no more than 5
business days prior to the Closing Date, Seller will provide to Buyer a list of
open sales and purchase orders entered into in the ordinary course of business,
consistent with the Transition Plan, as of the most recent practicable date.
(d) Excluded Liabilities. Notwithstanding anything to the contrary
contained in this Agreement or otherwise, Buyer will not assume or in any way
become liable for Seller's debts, Taxes, liabilities or obligations of any
nature whatsoever, whether accrued, absolute or contingent, whether known or
unknown, whether disclosed or undisclosed, whether due or to become due and
whether related to the Purchased Assets or otherwise, and regardless of when or
by whom incurred, other than the Assumed Liabilities and any liabilities or
obligations of any nature whatsoever to the extent such liabilities or
obligations are caused by or arise out of Buyer's use of the Purchased Assets
after the Closing (collectively, the "Excluded Liabilities"). Without limiting
the generality of the foregoing, Excluded Liabilities shall include, without
limitation, all liabilities and obligations arising under Environmental and
Safety Requirements relating to Seller, the Purchased Assets, or the Business
and relating to facts or circumstances existing prior to the Closing Date; all
liabilities and obligations arising under the Leases and all liabilities and
obligations related to the transportation, treatment, storage, disposal or other
management of wastes generated by Seller, any predecessor or affiliate, or the
Business prior to the Closing Date, including all such liabilities and
obligations arising pursuant to CERCLA or any other Environmental and Safety
Requirements.
1.2 PURCHASE PRICE.
--------------
(a) The total purchase price payable by Buyer to Seller for the
Purchased Assets (the "Purchase Price") shall be the assumption by Buyer of the
Assumed Liabilities plus an amount equal to the Base Purchase Price.
(b) At the Closing, Buyer shall assume the Assumed Liabilities and
shall deliver to Seller cash in an amount equal to the Base Purchase Price by
wire transfer of immediately available funds to an account designated by Seller
to Buyer no less than 2 business days before the Closing Date.
(c) The "Base Purchase Price" shall equal the sum of the book value
of the Inventory as of the Closing Date, net of vendor rebates applicable
thereto, plus the depreciated book value of the Purchased Assets other than
Inventory as of the Closing Date. Attached hereto as Schedule 1.2(c) is a
schedule of the Inventory, net of vendor rebates applicable thereto, and the
other Purchased Assets reflecting such book values as of September 24, 1996 (in
the case of the Inventory) and September 19, 1996 (in the case of the other
Purchased Assets). Within 2 business days prior to the Closing Date, Seller
will provide to Buyer a revised Schedule 1.2(c) which (i) has been adjusted for
depreciation of the Purchased Assets other than Inventory and (ii) includes a
good faith estimate of the book value of the Inventory, net of vendor rebates
applicable thereto, as of the
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Closing determined in accordance with GAAP (the "Estimated Inventory Balance").
The sum of such adjusted amounts will be the Base Purchase Price.
1.3 INVENTORY.
---------
(a) On the business day prior to the Closing Date, Seller and its
representatives will conduct a physical count of the Inventory as of such date,
which Buyer and its representatives shall be entitled to observe. Within 30
days after the Closing Date, Seller shall prepare and deliver to Buyer a
schedule (the "Inventory Statement") reflecting Seller's determination of the
book value of the Inventory, net of vendor rebates applicable thereto, as of the
Closing Date consistent with GAAP (the "Actual Inventory Balance"), which
determination shall be based upon the physical count taken on the business day
prior to the Closing Date. Seller shall make available to Buyer all information
necessary in order for Buyer to review Seller's determination of the Actual
Inventory Balance.
(b) If Buyer disagrees with Seller's determination of the Actual
Inventory Balance, Buyer shall notify Seller in writing of such disagreement
within 15 days from the date Buyer receives the Inventory Statement. Such
writing shall be accompanied by a written notice from Buyer's accountants
setting forth the basis for such disagreement in reasonable detail. Buyer and
Seller thereafter shall negotiate in good faith to resolve any such
disagreements. If Buyer and Seller are unable to resolve any such disagreements
within 15 days after delivery of Buyer's objection letter, Buyer and Seller
shall submit such dispute to an independent "Big Six" accounting firm mutually
agreeable to Buyer and Seller for resolution consistent with GAAP. If Buyer and
Seller are unable to mutually agree on such an accounting firm, a "Big Six"
accounting firm will be selected by lot after eliminating one firm designated as
objectionable by each of Buyer and Seller (any accounting firm so selected or
agreed upon shall be referred to herein as the ("Independent Auditor")).
(c) Buyer and Seller shall use their best efforts to cause the
Independent Auditor to resolve all disagreements over the Actual Inventory
Balance as soon as practicable, but in any event within 45 days after submission
of the disputes to the Independent Auditor. The resolution of such
disagreements and the determination of the Actual Inventory Balance shall be
final and binding on Buyer and Seller.
(d) The Independent Auditor shall determine the allocation of its
costs and expenses in determining the Actual Inventory Balance based upon the
percentage which the portion of the contested amount not awarded to each party
bears to the amount actually contested by such party. Buyer and Seller shall
pay the Independent Auditor's fees and expenses based on such allocation.
(e) As soon as practicable (but in no event later than five
business days) after the Actual Inventory Balance is determined pursuant to this
Section 1.3, Buyer shall pay to Seller or Seller shall pay to Buyer, as the case
may be, in immediately available funds the sum of (i) the difference between the
Estimated Inventory Balance and the Actual Inventory Balance and (ii) interest
on the amount described in clause (i) at a per annum rate equal to the prime
rate, as
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reported by The Wall Street Journal on the day which is two business days prior
to the date of such payment, for the period between the Closing Date and the
date on which such payment is made.
1.4 CLOSING TRANSACTIONS.
--------------------
(a) Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") will take place at the offices of Kirkland & Ellis,
200 East Randolph Drive, Chicago, Illinois 60601, at 9:00 a.m. local time on
October 31, 1996, or such earlier date, time or place as is mutually agreeable
to Buyer and Seller (the "Closing Date").
(b) Closing Deliveries. Subject to the conditions set forth in this
Agreement, the parties agree to consummate the following "Closing Transactions"
at the Closing:
(i) Seller will convey to Buyer good and marketable title to all of
the Purchased Assets, free and clear of all Liens, and deliver to Buyer a
bill of sale in the form of Exhibit B attached hereto and all other
instruments of conveyance, all in form and substance reasonably
satisfactory to Buyer and its counsel (collectively, "Conveyance
Documents"), which are necessary or reasonably required by Buyer to effect
the transfer to Buyer of the Purchased Assets;
(ii) Buyer will deliver to Seller an assignment and assumption in
the form of Exhibit C attached hereto and such other instruments of
assumption in form and substance reasonably satisfactory to Seller and its
counsel as are required in order for Buyer to assume the Assumed
Liabilities;
(iii) Buyer will deliver to Seller certified copies of the
resolutions of Buyer's and Great Lakes Chemical Corporation's boards of
directors approving the transactions contemplated by this Agreement;
(iv) Seller will deliver to Buyer certified copies of the
resolutions of Seller's, SCP's, and SCP Pool's boards of directors
approving the transactions contemplated by this Agreement; and
(v) Seller, SCP and SCP Pool will enter into a Noncompetition
Agreement with Buyer in the form of Exhibit D attached hereto (the
"Noncompetition Agreement"), and such agreement will be in full force and
effect.
ARTICLE II
COVENANTS PRIOR TO CLOSING
2.1 AFFIRMATIVE COVENANTS OF SELLER. Following the execution of
this Agreement and prior to the Closing, unless Buyer otherwise agrees in
writing, Seller will, except as otherwise contemplated by the Transition Plan:
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(a) use commercially reasonable efforts to conduct its business
(including, without limitation, its cash management practices, the collection of
receivables, payment of payables, incurrence of capital expenditures and
purchase of Inventory) in order to minimize Operating Losses, to the extent
possible, and consistent with the Transition Plan;
(b) use commercially reasonable efforts to maintain the Purchased
Assets and the Real Property in good operating condition (reasonable wear and
tear excepted) and repair, maintain insurance reasonably comparable to that in
effect on the date hereof (and notify Buyer promptly in the event Seller is not
able to maintain such insurance), maintain Inventory, supplies and spare parts
at levels consistent with the Transition Plan and, in the event of a casualty,
loss or damage to any of the Purchased Assets prior to the Closing Date for
which Seller is insured, transfer the proceeds of such insurance to Buyer at the
Closing, but only to the extent that the amount of such proceeds does not exceed
the depreciated book value of such assets;
(c) maintain its books, accounts (including working capital) and
records in accordance with GAAP;
(d) comply in all material respects with all legal requirements and
contractual obligations applicable to the operations and business of Seller and
pay all applicable Taxes then due and payable and relating to the Purchased
Assets; and
(e) promptly inform Buyer in writing of any variances from the
representations and warranties of which Seller becomes aware contained in
Article III or elsewhere in this Agreement or any breach of any covenants
hereunder by Seller.
2.2 NEGATIVE COVENANTS OF SELLER. Following the execution of this
Agreement and prior to the Closing, without Buyer's prior written consent, which
shall not be unreasonably withheld, Seller will not:
(a) take any action that would require disclosure under Section 3.7
below, except for actions that would require disclosure under Section 3.7(h) or
(i) and were taken in accordance with the Transition Plan;
(b) enter into any transaction with respect to the Business with
any of its officers or directors;
(c) enter into any transactions with respect to the Business with
any of its Affiliates (other than its officers and directors) except in
connection with the Transition Plan;
(d) sell, lease, license or otherwise dispose of any interest in
any of the Purchased Assets, other than Inventory in accordance with the
Transition Plan, or permit, allow or suffer any of the Purchased Assets to be
subjected to any Lien other than Liens in favor of The First National Bank of
Chicago, as Agent, in connection with SCP's bank credit facility (the "FNBC
Liens");
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(e) terminate, modify or amend any existing material contracts,
leases or agreements to be assumed by Buyer; or
(f) enter into any new material contracts, leases, agreements or
commitments, other than commitments for materials made in accordance with the
Transition Plan.
2.3 EXCLUSIVITY. Neither SCP, SCP Pool nor Seller will, directly or
indirectly, through any officer, director, employee, agent or otherwise
(including through any investment banker, attorney or accountant retained by any
of the foregoing), solicit, initiate any discussions or negotiations regarding,
or furnish to any other Person any information with respect to, or otherwise
cooperate in any way with, any proposal or offer from any Person (including any
of such Person's officers, directors, employees, agents or other
representatives) relating to any liquidation (other than as contemplated
hereby), dissolution, recapitalization or refinancing of Seller or any
acquisition of the capital stock or other securities of Seller or any
substantial portion of the assets of Seller or the Business (including any
acquisition structured as a merger, consolidation or share exchange) (an
"Acquisition Proposal"). Seller will immediately cease and cause to be
terminated any and all contacts, discussions and negotiations with third parties
regarding any Acquisition Proposal. Each of Seller, SCP and SCP Pool hereby
agrees to notify Buyer immediately upon the receipt of any proposal, offer,
inquiry or contract with respect to any of the foregoing and will promptly
provide Buyer with copies of and disclose to Buyer the details concerning any
such proposal, inquiry or contract.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF SELLER
As a material inducement to Buyer to enter into this Agreement Seller
hereby represents and warrants to Buyer, that:
3.1 ORGANIZATION AND CORPORATE POWER. Each of Seller, SCP and SCP
Pool is a corporation duly organized, validly existing and in good standing
under the laws of the state of Delaware. Seller is qualified to do business in
every jurisdiction in which the nature of its business or its ownership of
property requires it to be qualified, except where the failure to be so
qualified would not have a Material Adverse Effect. (All such jurisdictions in
which Seller is qualified are set forth on Schedule 3.1 hereto.) Seller has full
corporate power and other necessary power and authority and all licenses,
permits and authorizations necessary to own and operate its properties,
necessary to own and operate its business and to conduct its business as
presently conducted, except where the failure to have such licenses, permits and
authorizations would not have a Material Adverse Effect.
3.2 AUTHORIZATION OF TRANSACTIONS. Each of Seller, SCP and SCP Pool
has full power and authority to execute, deliver and perform its obligations
under this Agreement and the Noncompetition Agreement and to consummate the
transactions contemplated hereby and thereby. The execution, performance and
delivery of this Agreement and the Noncompetition Agreement by
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each of Seller, SCP and SCP Pool and the consummation of the transactions
contemplated hereby and thereby have been duly and validly authorized by all
requisite corporate action. No other corporate proceedings on the part of
Seller, SCP or SCP Pool are necessary to approve and authorize the execution and
delivery of this Agreement or the Noncompetition Agreement. This Agreement has
been duly executed and delivered by Seller, SCP and SCP Pool and constitutes the
valid and binding agreement of Seller, SCP and SCP Pool, enforceable against
Seller, SCP and SCP Pool in accordance with its terms, subject to the effect of
bankruptcy, insolvency, reorganization or other similar laws and to general
principles of equity (whether considered in proceedings at law or in equity).
The Noncompetition Agreement shall have been duly executed and delivered by
Seller, SCP and SCP Pool.
3.3 SUBSIDIARIES; INVESTMENTS. Seller does not own or control
(directly or indirectly), hold or have any rights or options to subscribe for,
purchase or acquire any shares of stock, partnership interest, joint venture
interest, equity participation or any other security or interest in any other
Person and Seller has never had any Subsidiary.
3.4 ABSENCE OF CONFLICTS. Except as set forth in Schedule 3.4
hereto:
(a) the execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby do not and will not (i)
conflict with or result in any breach of any of the provisions of, (ii)
constitute a default under, (iii) result in a violation of, (iv) give any third
party the right to terminate or to accelerate any obligation under, (v) result
in the creation of any Lien upon the Purchased Assets under, or (vi) require any
authorization, consent, approval, exemption or other action by or notice to any
court or other governmental body under, the provisions of the certificate of
incorporation or by-laws of Seller, SCP or SCP Pool or any indenture, mortgage,
lease, loan agreement or other agreement or instrument to which Seller, SCP or
SCP Pool is bound or affected, or any law, statute, rule or regulation or any
judgment, order or decree to which Seller, SCP or SCP Pool is subject; and
(b) the execution, delivery and performance of the Noncompetition
Agreement and the consummation of the transactions contemplated thereby do not
and will not (i) conflict with or result in any breach of any of the provisions
of, (ii) constitute a default under, (iii) result in a violation of, (iv) give
any third party the right to terminate or to accelerate any obligation under,
(v) result in the creation of any Lien upon the Purchased Assets under, or (vi)
require any authorization, consent, approval, exemption or other action by or
notice to any court or other governmental body under, the provisions of the
certificate of incorporation or by-laws of Seller, SCP or SCP Pool or any
indenture, mortgage, lease, loan agreement or other agreement or instrument to
which Seller, SCP or SCP Pool is bound or affected.
3.5 FINANCIAL STATEMENTS. Seller has furnished Buyer with copies of
an unaudited balance sheet as of June 30, 1996, for Seller (the "Latest Balance
Sheet") and the related unaudited statements of income and cash flow for the
six-month period then ended and copies of the unaudited balance sheet of Seller
as of December 31, 1995 and the related unaudited statement of income and cash
flow for the period then ended. Each of the foregoing financial statements
(including in all cases the notes thereto, if any) (collectively, the "Financial
Statements") and
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Schedule 1.2(c) attached hereto were prepared from Seller's books and records,
and the Financial Statements present fairly Seller's financial condition and
results of operations as of the times and for the periods referred to therein,
and, except as set forth on Schedule 3.5 attached hereto, have been prepared in
accordance with GAAP, subject to normal year-end adjustments and the absence of
footnote disclosure. The amounts reflected on Schedule 1.2(c) have been
determined in accordance with GAAP. The amounts reflected on (or to be reflected
on) Schedule 1.2(c) have been (or will be) determined based on Seller's books
and records, which are true and correct in all material respects with respect to
such amounts.
3.6 ABSENCE OF UNDISCLOSED LIABILITIES. To Seller's knowledge,
Seller has no material obligations or liabilities (whether accrued, absolute,
contingent, unliquidated or otherwise, whether or not known, whether due or to
become due and regardless of when or by whom asserted) arising out of
transactions entered into at or prior to the Closing, or any action or inaction
at or prior to the Closing, or any state of facts existing at or prior to the
Closing, except (a) obligations under contracts or commitments described in
Schedule 3.11 hereto or under contracts and commitments entered into in the
ordinary course of business which are not required to be disclosed thereon (but
not liabilities for breaches thereof), (b) liabilities reflected on the
liability side of the Latest Balance Sheet, (c) liabilities which have arisen
after the date of the Latest Balance Sheet in the ordinary course of business or
otherwise in accordance with the terms and conditions of this Agreement (none of
which is a liability for breach of contract, breach of warranty, tort or
infringement, or a claim or lawsuit, or an environmental liability), and (d)
liabilities otherwise expressly set forth in Schedule 3.6 hereto.
3.7 ABSENCE OF CERTAIN DEVELOPMENTS. Seller has not, except as set
forth in Schedule 3.7 hereto, since December 31, 1995:
(a) suffered a change or development in the business, financial
condition, operating results, earnings, assets, customer, supplier, employee and
sales representative relations or financing arrangements of the Business which
has had, or is likely to have, a Material Adverse Effect;
(b) borrowed any amount or issued or exchanged any notes or other
evidences of any indebtedness for borrowed money or incurred or become subject
to any obligations or liabilities (whether absolute or contingent), except
current liabilities incurred in the ordinary course of business consistent with
past practice and liabilities under contracts entered into in the ordinary
course of business consistent with past practices;
(c) discharged or satisfied any Lien involving indebtedness
exceeding $50,000 or paid any obligation or liability, other than liabilities
paid in the ordinary course of business, or prepaid any amount of indebtedness
for borrowed money;
(d) mortgaged, pledged or subjected to any Lien any portion of its
properties or assets with a value in excess of $50,000;
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(e) sold, leased, assigned or transferred (including, without
limitation, transfers to any employees or Affiliates of Seller) any tangible
assets (other than Inventory in the ordinary course of business), Proprietary
Rights or other intangible assets, or canceled without fair consideration any
debts or claims owing to or held by it, or, to its knowledge, disclosed any
proprietary confidential information to any Person, other than disclosures of
such information to Buyer and its Affiliates and representatives or in the
ordinary course of business pursuant to appropriate confidentiality agreements;
(f) suffered any theft, damage, destruction or casualty loss to its
tangible assets exceeding $75,000, whether or not covered by insurance;
(g) entered into, amended or terminated any lease, contract,
agreement or commitment, or taken any other action or entered into any other
transaction other than in the ordinary course of business and in accordance with
past custom and practice, or entered into any transaction with any Insider (as
defined in Section 3.17 below) (other than with Affiliates of SCP or SCP Pool in
the ordinary course of business and in accordance with past custom and
practice), or changed any business practice or manner of dealing with any
customer, supplier, subcontractor, Insider, sales representative, or other
person or entity with whom Seller engages in any business activity, or entered
into any other material transaction, whether or not in the ordinary course of
business;
(h) entered into any employment contract or collective bargaining
agreement, written or oral, or changed the employment terms for any employee or
agent or made or granted any bonus or any wage, salary or compensation increase
to any director, officer, employee or sales representative, group of employees
or consultant or made or granted any increase in any employee benefit plan or
arrangement, or amended or terminated any existing employee benefit plan or
arrangement or adopted any new employee benefit plan or arrangement, except for
normal compensation increases or bonuses consistent with past practice;
(i) conducted its business (including the collection of
receivables, purchase of inventory, payment of payables, incurrence of capital
expenditures, and maintenance and repair of assets) other than in the usual and
ordinary course of business in accordance with past custom and practice;
(j) made any capital expenditures (or commitments therefor) that
aggregate in excess of $75,000;
(k) made any loans or advances to, or guarantees for the benefit
of, any persons;
(l) delayed or postponed in a material way the payment of accounts
payable and other liabilities;
(m) entered into any lease of capital equipment or real estate
involving rental in excess of $50,000 per annum;
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(n) made any charitable contributions or pledges in excess of
$10,000 in the aggregate; or
(o) entered into any other transaction that is material to the
Business other than in the ordinary course of business.
3.8 TITLE TO PROPERTIES.
(a) Owned Properties. Seller does not own any real property.
(b) Leased Properties. Schedule 3.8 sets forth a list of all of the
leases and subleases ("Leases") and each leased and subleased parcel of real
property in which Seller has a leasehold and subleasehold interest (the "Real
Property"), including, without limitation, the lease for the premises located at
4653 Leston Avenue, Suite 701, Dallas, Texas (the "Distribution Facility
Lease").
(c) Real Property Disclosure. Except as disclosed on Schedule 3.8,
there is no real property leased or owned by the Seller used in the Seller's
business.
(d) Condition and Operation of Improvements. To Seller's knowledge,
all buildings and all components of all buildings, structures and other
improvements included within the Real Property covered by the Distribution
Facility Lease (the "Improvements"), are in good condition and repair and
adequate to operate such facilities as currently used; to Seller's knowledge,
there are no facts or conditions affecting any of the Improvements which would,
individually or in the aggregate, interfere in any material respect with the
use, occupancy or operation thereof as currently used, occupied or operated.
(e) Except as set forth on Schedule 3.8, Seller owns good and
marketable title, free and clear of all Liens other than the FNBC Liens, to all
of the Purchased Assets which are personal property.
(f) The Purchased Assets will include all assets reflected in the
Latest Balance Sheet (except for changes in Inventory in accordance with the
Transition Plan) and used by Seller in conducting the Business as presently
conducted, other than the Excluded Assets and the Real Property. To Seller's
knowledge, all Purchased Assets are in good condition and repair in all
respects, except for ordinary wear and tear not caused by neglect, and are
useable in the ordinary course of the Business.
3.9 ENVIRONMENTAL AND SAFETY MATTERS.
(a) Except as set forth on Schedule 3.9, Seller has, to its
knowledge, complied and is in compliance with all Environmental and Safety
Requirements, except where the failure to comply would not have a Material
Adverse Effect.
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(b) Without limiting the generality of the foregoing, Seller has,
to its knowledge, obtained and complied with, and is in material compliance
with, all permits, licenses and other authorizations that may be required
pursuant to Environmental and Safety Requirements for the occupation of its
respective facilities and the operation of the Business and which are material
to the Business, a list of all such permits, licenses and other authorizations
is set forth on Schedule 3.9 hereto.
(c) Seller has not received any written notice, report or other
information regarding any actual or alleged violation of Environmental and
Safety Requirements, including any investigatory, remedial or corrective
obligations, relating to the Real Property or the Business and arising under
Environmental and Safety Requirements where such actual or alleged violation is
or may be material to the Real Property or the Business.
(d) Except as set forth on Schedule 3.9, to Seller's knowledge,
none of the following exists at any property or facility owned or operated by
Seller: 1) underground storage tanks, landfills, surface impoundments or waste
disposal areas; 2) asbestos-containing material in any form or condition; or 3)
materials or equipment containing polychlorinated biphenyls.
(e) To the knowledge of Seller, Seller has not treated, stored,
disposed of, arranged for or permitted the disposal of, transported, handled, or
released any substance, including without limitation any hazardous substance or
owned or operated any property or facility (and no such property or facility is
contaminated by any such substance), in a manner that has given or could give
rise to liability, including any liability for corrective action costs, response
costs, personal injury, property damage, natural resources damages or attorney
fees pursuant to the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended ("CERCLA") or the Resource Conservation and
Recovery Act ("RCRA"), or any other Environmental and Safety Requirements where
such liability may have a Material Adverse Effect.
(f) "Environmental and Safety Requirements" means all federal,
state, local and foreign statutes, regulations, ordinances and similar
provisions having the force or effect of law, all judicial and administrative
orders and determinations, all contractual obligations and all common law
concerning public health and safety, worker health and safety, and pollution or
protection of the environment, including without limitation all those relating
to the presence, use, production, generation, handling, transportation,
treatment, storage, disposal, distribution, labeling, testing, processing,
discharge, release, threatened release, control, or cleanup of any hazardous
materials, substances or wastes, chemical substances or mixtures, pesticides,
insecticides, biocides, pollutants, contaminants, toxic chemicals, carcinogens,
reproductive toxins, petroleum products or byproducts, asbestos, polychlorinated
biphenyls, noise or radiation, in each case as in effect and as amended through
the Closing Date.
(g) This Section 3.9 constitutes Seller's sole and exclusive
representations and warranties as to matters covered by this Section.
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3.10 TAXES.
(a) All Tax Returns required to be filed by Seller have been
prepared in material compliance with all applicable laws and regulations, and
all such Tax Returns are true and accurate in all material respects. All Taxes
shown as due and payable by Seller on all such Tax Returns have been paid or
appropriate reserves have been established.
(b) No deficiency or proposed adjustment which has not been settled
or otherwise resolved for any amount of Tax has been proposed, asserted or
assessed by any taxing authority against Seller (or any Affiliated Group of
which Seller is or has been a member and for which Seller would be responsible
for payment) and there is no action, suit, taxing authority proceeding or audit
now in progress, pending or, to Seller's, SCP's or SCP Pool's knowledge,
threatened against or with respect to Seller.
(c) To the knowledge of Seller, Seller has withheld and paid all
employment taxes required to have been withheld and paid in connection with
amounts paid or owing to any employee, independent contractor, or other third
party.
(d) No written claim has been made within the previous three years
by a taxing authority in a jurisdiction where Seller does not file Tax Returns
that Seller is or may be subject to Taxes assessed by such jurisdiction with
respect to the Purchased Assets.
3.11 CONTRACTS AND COMMITMENTS.
(a) Except as set forth in Schedule 3.11 hereto, Seller is not a
party to or bound by, whether written or oral, any: (i) collective bargaining
agreement or contract with any labor union, whether formal or informal; (ii)
contract for the employment of any officer, individual employee or other person
on a full-time, part-time or consulting basis or any severance agreements; (iii)
agreement or indenture relating to the borrowing of money or to mortgaging,
pledging or otherwise placing a Lien on any of the Purchased Assets; (iv)
license or royalty agreements; (v) lease or agreement under which Seller is
lessee of, or holds or operates, any personal property owned by any other party
for which annual rental exceeds $50,000; (vi) lease or agreement under which
Seller is lessor of or permits any third party to hold or operate any property,
real or personal, owned or controlled by it for which annual rental exceeds
$50,000; (vii) contract or group of related contracts with the same party for
the purchase or sale of raw materials, commodities, supplies, products or other
personal property or for the furnishing or receipt of services which either
calls for performance over a period of more than six months or involves a sum in
excess of $50,000 or which may not be terminable with less than six months'
notice; (viii) contract relating to the distribution, marketing or sales of its
products or services (including contracts to provide advertising allowances or
promotional services) involving more than $50,000; (ix) franchise agreements,
(x) agreements, contracts or understandings pursuant to which Seller
subcontracts work to third parties; (xi) contract or agreement prohibiting it
from freely engaging in any business or competing anywhere in the world; or
(xii) any other agreement which Seller deems material to the Business taken as a
whole whether or not entered into in the ordinary course of business.
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(b) Except as disclosed in Schedule 3.11, (i) all of the Assumed
Contracts are in full force and effect, have not been amended or modified as of
the Closing, and are valid, binding and enforceable in accordance with their
respective terms, (ii) to the knowledge of Seller, no Assumed Contract has been
breached or canceled by the other party since December 31, 1995, and (iii)
Seller has, to its knowledge, performed all of the obligations required to be
performed by Seller in connection with the Assumed Contracts and is not in
receipt of any claim of default under any such contract or commitment.
(c) Seller has provided Buyer with a true and correct copy of all
Assumed Contracts, and has made available to Buyer those written contracts
referred to on Schedule 3.11 which are not Assumed Contracts, in each case
together with all amendments, waivers or other changes thereto. To Seller's
knowledge, Schedule 3.11 contains an accurate and complete description of all
material terms of all oral contracts referred to therein.
3.12 LITIGATION; PROCEEDINGS. Except as set forth in Schedule 3.12
hereto, there are no material actions, suits, proceedings (including eminent
domain proceedings), orders, claims or investigations pending or, to the
knowledge of Seller, overtly threatened against or affecting Seller at law or in
equity, or before or by any federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, and there is no basis known to Seller for any of the foregoing.
3.13 BROKERAGE. There are no claims for brokerage commissions,
finders fees or similar compensation in connection with the transactions
contemplated by this Agreement, based on any arrangement or agreement made by or
on behalf of Seller.
3.14 GOVERNMENTAL LICENSES, PERMITS AND CONSENTS. To the knowledge
of Seller, Schedule 3.14 hereto contains a complete listing and summary
description of all material permits, licenses, franchises, certificates,
approvals and other authorizations of foreign, federal, state and local
governments owned, possessed or used by Seller in the conduct of the Business
(collectively, the "Licenses"). Except as indicated on Schedule 3.14, Seller is
the licensee, permittee, or beneficiary of the Licenses. To the knowledge of
Seller, no loss or expiration of any License is pending or threatened in writing
other than expiration in accordance with the terms thereof.
3.15 EMPLOYEES. There is no unfair labor practice charge or
complaint pending or, to the knowledge of Seller, threatened against Seller
before the National Labor Relations Board or any similar state or local body.
Seller has not, within the two-year period preceding the date of the Agreement,
experienced any union organization attempts, labor disputes or work stoppage or
slowdowns due to labor disagreements or any strikes, grievances, unfair labor
practice claims or other material employee disputes. There is no labor strike,
dispute, work stoppage or slowdown pending or, to the knowledge of Seller,
threatened. There is no request for representation pending and, to the knowledge
of Seller, no question concerning representation has been raised. There is no
grievance or arbitration proceeding pending against Seller which might have a
Material Adverse Effect.
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3.16 EMPLOYEE BENEFIT PLANS.
(a) Schedule 3.16 attached hereto contains a list of each
significant employee benefit plan and policy maintained or contributed to by
Seller or any of its Affiliates on behalf of the employees of the Business,
including each (i) employee pension benefit plan (as defined in Section 3(2) of
ERISA) (the "Employee Pension Plans") and (ii) employee welfare benefit plan (as
defined in Section 3(1) of ERISA) ("Employee Welfare Plans"), and lists each
compensation, incentive, bonus, severance or other termination plan, program or
arrangement (all items listed on Schedule 3.16 are referred to as "Plans"). All
Plans (and related trusts and insurance contracts) comply in form and in
operation in all material respects with all applicable laws, including the
requirements of ERISA and the Code. Seller has furnished or made available to
Buyer with respect to each Plan, true and complete copies of the plan documents,
summary plan descriptions and all related trust agreements, insurance contracts
or other funding agreements which implement the Plans.
(b) Neither Seller nor any member of Seller's controlled group (as
defined in Section 414 of the Code) have incurred any material liability to the
PBGC, the Internal Revenue Service, the Department of Labor, any other
governmental agency, or any Multiemployer Plan with respect to any Plan
currently or previously maintained by Seller or Controlled Group member that has
not been satisfied in full, and, to Seller's knowledge, no condition exists that
presents a material risk to Seller of incurring such a liability, other than
liability for premiums due the PBGC.
3.17 AFFILIATE TRANSACTIONS. To the knowledge of Seller and except
as set forth on Schedule 3.17, no officer, director or employee of Seller or any
person related by blood or marriage to any such Person or any entity in which
any such Person owns any beneficial interest (collectively, the "Insiders"), is
a party to any agreement, contract, commitment or transaction with Seller or
which is pertaining to the Business or has any interest in any property, real or
personal or mixed, tangible or intangible, relating to the Business.
3.18 COMPLIANCE WITH LAWS. Except as set forth on Schedule 3.18
hereto, Seller and its officers, directors, agents and employees have complied
with all applicable laws and regulations of foreign, federal, state and local
governments and all agencies thereof where the failure to comply would have a
Material Adverse Effect, and no claims have been filed against Seller alleging a
material violation of any such laws or regulations. Seller has not given or
agreed to give any money, gift or similar benefit (other than incidental gifts
of articles of nominal value or entertainment of customers in the normal course
of business) to any actual or potential customer, supplier, governmental
employee, Insider or any other person in a position to assist or hinder Seller
in connection with any actual or proposed transaction concerning the Business.
3.19 INVENTORY.
(a) The Inventory of Seller shown on the Latest Balance Sheet and
the Inventory of Seller shown on the Inventory Statement or otherwise included
in the Purchased Assets, net of the reserves applicable thereto determined in
accordance with GAAP, is owned by Seller, and is
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salable in the ordinary course of business, consistent with past practice,
except for Inventory which is damaged and unsalable, as set forth in the
Inventory Statement.
(b) The finished goods Inventory meets the applicable
specifications set forth in Exhibit 6.1 to the Supply Agreement to be executed
on the date hereof among Buyer, SCP and SCP Pool which is attached as Exhibit C-
1 to the Asset Purchase Agreement of even date herewith among SCP Pool, SCP, The
B-L Network, Inc. and Buyer.
(c) The raw materials Inventory meets the applicable specifications
provided by the suppliers thereof.
3.20 CLOSING DATE. All of the representations and warranties
contained in this Article III and elsewhere in this Agreement and all
information delivered in any Schedule, attachment or Exhibit hereto are true and
correct on the date of this Agreement and will be true and correct on the
Closing Date (except for representations and warranties which speak expressly as
of a different date, which representations and warranties will have been true
and correct as of such date).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
As a material inducement to Seller, SCP and SCP Pool to enter into
this Agreement, Buyer hereby represents and warrants to Seller that:
4.1 CORPORATE ORGANIZATION AND POWER. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. Buyer is qualified to do business in every jurisdiction in which the
nature of its business or its ownership of property requires it to be qualified,
except where the failure to be so qualified would not have a material adverse
effect on the business, financial condition, operating results, assets or
operations of Buyer. Buyer has full corporate power and authority to enter into
this Agreement and the other agreements contemplated hereby and perform its
obligations hereunder and thereunder.
4.2 AUTHORIZATION. Buyer has full power and authority to deliver
this Agreement and the Noncompetition Agreement and to consummate the
transactions contemplated hereby and thereby. The execution, delivery and
performance of this Agreement and the Noncompetition Agreement by Buyer and the
consummation of the transactions contemplated hereby and thereby have been duly
and validly authorized by all requisite corporate action on the part of Buyer,
and no other corporate proceedings on its part are necessary to authorize the
execution, delivery or performance of this Agreement or the Noncompetition
Agreement. This Agreement has been and the Noncompetition Agreement shall have
been duly executed and delivered by Buyer. This Agreement constitutes a valid
and binding agreement of Buyer, enforceable against Buyer in accordance with its
terms, subject to the effect of bankruptcy, insolvency, reorganization or other
similar laws and to general principles of equity (whether considered in
proceedings at law or in equity).
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4.3 NO VIOLATION. The execution, delivery or performance of this
Agreement and the other agreements contemplated hereby and the consummation of
the transactions contemplated hereby or thereby will not breach or violate
Buyer's certificate of incorporation or its bylaws, any applicable law, rule or
regulation of any governmental authority, or any agreement or instrument, or any
license, franchise or permit, or subject Buyer to any order, writ, injunction or
decree.
4.4 GOVERNMENTAL AUTHORITIES AND CONSENTS. No permit, consent,
approval or authorization of, or declaration to or filing with, any governmental
or regulatory authority or any other party or Person is required in connection
with the execution, delivery or performance of this Agreement and the other
agreements contemplated hereby by Buyer, or the consummation by Buyer of the
transactions contemplated hereby and thereby.
4.5 BROKERAGE. There are no claims for brokerage commissions,
finders' fees or similar compensation in connection with the transactions
contemplated by this Agreement based on any arrangement or agreement made by or
on behalf of Buyer.
4.6 CLOSING DATE. All of the representations and warranties
contained in this Article IV and elsewhere in this Agreement and all information
delivered in any Schedule, attachment or Exhibit hereto are true and correct on
the date of this Agreement and will be true and correct on the Closing Date.
ARTICLE V
TERMINATION
5.1 TERMINATION. This Agreement may be terminated at any time prior
to the Closing only by mutual written consent of Buyer and Seller.
5.2 EFFECT OF TERMINATION. In the event of termination of this
Agreement by either Buyer or Seller as provided above, this Agreement will
forthwith become void and there will be no liability on the part of any party
hereto to any other party hereto or its shareholders or directors or officers in
respect thereof, except for the obligations of the parties hereto in Sections
7.2, 7.6 and 7.7 and except that nothing herein will relieve any party from any
breach of this Agreement prior to such termination.
ARTICLE VI
SURVIVAL; INDEMNIFICATION
6.1 SURVIVAL; ETC. All representations, warranties, covenants and
agreements set forth in this Agreement or in any writing delivered in connection
with this Agreement will survive the Closing Date and the consummation of the
transactions contemplated hereby and will not be affected by any examination
made for or on behalf of Buyer or Seller, the knowledge of any of their
respective officers, directors, stockholders, employees or agents, or the
acceptance of any certificate
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or opinion from Buyer or Seller, their respective officers, directors,
stockholders, employees or agents.
6.2 INDEMNIFICATION.
(a) Subject to the limitations set forth in this Section 6.2,
Seller agrees to indemnify Buyer, its Affiliates, officers, directors,
stockholders, employees, agents, representatives, successors and permitted
assigns (collectively, the "Buyer Parties") and hold each of them harmless
against and pay on behalf of or reimburse such Buyer Parties in respect of any
loss, liability, demand, claim, action, cause of action, cost, damage,
deficiency, tax, penalty, fine or expense, whether or not arising out of third
party claims (including, without limitation, interest, penalties, reasonable
attorneys' fees and expenses, all amounts paid in settlement of any of the
foregoing and all reasonable amounts paid in investigation or defense of any of
the foregoing) (collectively, "Losses") which any such Buyer Party may suffer,
sustain or become subject to, as a result of, in connection with, relating or
incidental to or by virtue of: (i) the breach of any representation or warranty
of Seller contained in this Agreement; (ii) the breach of any covenant or
agreement of Seller contained in this Agreement; (iii) any claims of any brokers
or finders claiming by, through or under Seller, SCP or SCP Pool; (iv) the
assertion or recovery against any of the Buyer Parties of any liability or
obligation of any of the Seller Parties not to be assumed or performed by Buyer
hereunder (including, without limitation, the Excluded Liabilities) and (v) the
assertion or recovery against any of the Buyer Parties of any liability or
obligation under the Workers Adjustment and Retraining Notification Act.
(b) The indemnification provided for in Section 6.2(a) above is
subject to the following limitations:
(i) Seller will be liable to Buyer with respect to claims arising
from breaches of (w) the representations and warranties set forth in
Section 3.9 only if Buyer gives to Seller written notice thereof within
three years after the Closing Date; (x) the representations and warranties
set forth in Sections 3.10 and 3.16 only if Buyer gives to Seller written
notice thereof prior to the expiration of the applicable statute of
limitation with respect thereto plus 60 days;(y) the representations and
warranties set forth in Section 3.19 only if Buyer gives Seller written
notice thereof within 60 days after the expiration of any statute of
limitations applicable to claims by third parties (including without
limitation governmental authorities) against any Buyer Party relating to
the representations and warranties set forth in Section 3.19; and (z) the
covenants contained in Sections 2.1 and 2.2 and all other representations
and warranties contained in this Agreement only if Buyer gives Seller
written notice thereof within two years after the Closing Date;
(ii) Seller will not be liable to Buyer for any Loss arising with
respect to claims arising from breaches of the representations and
warranties set forth in this Agreement (other than breaches of the
representations and warranties set forth in Section 3.19, to which the
limitation set forth in this Section 6.2(b)(ii) shall not apply) unless the
aggregate amount of all such Losses relating to all such breaches exceeds
$50,000 in the aggregate (the "Buyer's
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Threshold"), in which case Seller and SCP Pool shall be liable for the
amount of such Losses in excess of Buyer's Threshold; and
(iii) the aggregate amount required to be paid by Seller with respect
to claims arising from breaches of the representations and warranties set
forth in this Agreement (other than breaches of the representations and
warranties set forth in Section 3.19, to which the limitation set forth in
this Section 6.2(b)(iii) shall not apply) shall not exceed the Purchase
Price.
Notwithstanding any implication to the contrary contained in this Agreement, so
long as Buyer delivers written notice of a claim to Seller within the foregoing
respective survival period, Seller shall be required to indemnify Buyer for all
damages with respect to such matter that Buyer may suffer though the date of the
claim, the end of the survival period, and beyond, subject to the limitations
set forth in Section 6.2(b)(ii) and (iii).
(c) Buyer agrees to indemnify Seller, its Affiliates, officers,
directors, stockholders, employees, agents, representatives, successors and
permitted assigns (collectively, the "Seller Parties") and hold each of them
harmless against and pay on behalf of and or reimburse such Seller Parties in
respect of any Losses which any Seller Party may suffer, sustain or become
subject to, as a result of, in connection with, relating or incidental to or by
virtue of (i) a breach of any representation, warranty, covenant, or agreement
by Buyer contained in this Agreement; provided, however, that Buyer will not be
liable for any Loss relating to breaches of Buyer's representations and
warranties contained in Article IV (except Sections 4.1, 4.2 and 4.3) hereof
unless written notice of such breach is given by Seller to Buyer within two
years of the Closing Date, (ii) the assertion or recovery against any of the
Seller Parties of any of the Assumed Liabilities, (iii) the assertion or
recovery against any of the Seller Parties of any liability or obligation
arising out of, in connection with, relating or incidental to or by virtue of
the Buyer's use of the Purchased Assets or operation of its business (including
the Business) after the Closing, except to the extent such liability constitutes
an Excluded Liability, or (iv) any claims of any brokers or finders claiming by,
through or under Buyer. Nothing contained in this Section 6.2(c) shall abrogate
or nullify the indemnification given by Seller to the Buyer Parties under
Section 6.2(a).
(d) If a party hereto seeks indemnification under this Section 6.2,
such party (the "Indemnified Party") shall give written notice to the other
party (the "Indemnifying Party") of the facts and circumstances giving rise to
the claim. In that regard, if any suit, action, claim, liability or obligation
shall be brought or asserted by any third party which, if adversely determined,
would entitle the Indemnified Party to indemnity pursuant to this Section 6.2,
the Indemnified Party shall promptly notify the Indemnifying Party of the same
in writing, specifying in detail the basis of such claim and the facts
pertaining thereto and the Indemnifying Party, if it so elects, shall assume and
control the defense thereof (and shall consult with the Indemnified Party with
respect thereto), including the employment of counsel reasonably satisfactory to
the Indemnified Party and the payment of all necessary expenses. If the
Indemnifying Party elects to assume and control the defense, the Indemnified
Party shall have the right to employ counsel separate from counsel employed by
the Indemnifying Party in any such action and to participate in the defense
thereof, but the fees and expenses of such counsel employed by the Indemnified
Party shall be at the expense
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of the Indemnified Party unless (i) the employment thereof has been specifically
authorized by the Indemnifying Party in writing or (ii) the Indemnifying Party
has failed to assume the defense and employ counsel, in which case the fees and
expenses of the Indemnified Party's counsel shall be paid by the Indemnifying
Party. If the Indemnifying Party elects to assume and control the defense, the
Indemnifying Party shall be entitled to settle or compromise any such action or
proceeding, provided, however, such settlement or compromise shall be effected
only with the written consent of the Indemnified Party, which consent shall not
be unreasonably withheld; provided, further however, that if the Indemnified
Party rejects a settlement that would have included a complete release of the
Indemnified Party from any further liability without any admission on the part
of the Indemnified Party of any wrongdoing, negligence, or liability whatsoever
and would not have required the Indemnified Party to perform or refrain from any
action in the future, its right to indemnification from the Indemnifying Party
shall be limited to the amount that would have been payable by the Indemnifying
Party under such settlement or compromise.
(e) If the Indemnified Party controls the defense, the Indemnified
Party shall be entitled to settle or compromise any such action or proceeding;
provided, however, that such a settlement or compromise which involves the
payment of money damages shall be effected only with the written consent of the
Indemnifying Party, which consent shall not be unreasonably withheld and
provided, further, however that if the Indemnifying Party rejects a settlement
and such action or proceeding is subsequently settled or a judgment is rendered
with respect thereto for an amount which exceeds the amount of the settlement
rejected by the Indemnifying Party, then the Indemnifying Party shall be
obligated to pay the full amount of such excess, in addition to its other
obligations under this Agreement.
(f) The Indemnifying Party shall pay the Indemnified Party in
immediately available funds promptly after the Indemnified Party provides the
Indemnifying Party with written notice of a claim hereunder and the parties
reasonably agree that there is a reasonable basis for such claim or a final
result, determination, finding and/or award is made pursuant to the terms of
Section 6.4 below.
(g) Any indemnification payments paid under this Section 6.2 will
be considered an adjustment to the Purchase Price.
(h) Subject to the terms and conditions set forth in this Section
6.2, in the event of a breach of any representation, warranty, covenant or
agreement contained in this Agreement, Buyer or Seller, as the case may be, may,
following final determination of the amount of the Losses sustained as a result
thereof pursuant to Section 6.4(e) or upon mutual agreement between Buyer and
Seller as to the appropriate amount of the Losses sustained as a result thereof,
setoff all or any portion of the Losses which such party suffers, sustains or
becomes subject to as a result of such breach against any amounts due or to
become due to Seller or Buyer (or their respective successors), as the case may
be, whether pursuant to this Agreement or otherwise.
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6.3 GENERAL QUALIFICATIONS ON INDEMNIFICATION. Notwithstanding any
provision of this Article VI to the contrary, the right of any Indemnified Party
to indemnification from the Indemnifying Party shall be subject to the
following:
(a) The liability of an Indemnifying Party with respect to any
indemnification claim shall be reduced by the amount of any tax benefit actually
realized or received by the Indemnified Party as a result of any Loss upon which
such claim is based, and shall include any tax detriment actually suffered by
the Indemnified Party as a result of such Loss. The amount of such tax benefit
or detriment shall be determined by taking into account the effect, if any, and
to the extent determinable, of timing differences resulting from the
acceleration or deferral of items of gain or loss resulting from such Loss.
(b) A Loss shall include actual damages only and shall not include
any special, punitive, consequential or multiplied damages, or lost profits,
except to the extent the same are included in a third party judgment against or
settlement with the Indemnified Party.
(c) Upon payment in full of any indemnification claim, the
Indemnifying Party shall be subrogated to the extent of such payment to the
rights of the Indemnified Party against any person or entity with respect to the
subject matter of such indemnification claim.
6.4 ARBITRATION PROCEDURE.
(a) Except as otherwise expressly provided herein, any dispute or
controversy arising under or in connection with Section 6.2 or 6.3 will be
settled by arbitration in Atlanta, Georgia.
(b) Whenever an arbitrable dispute arises, Buyer and Seller will
use their best efforts to agree upon an independent third-party arbitrator
within 14 days with due regard in the selection process for the nature of the
dispute and the circumstances surrounding same. In the event the parties are
unable to agree on the selection of such an arbitrator, either party may then
proceed in accordance with the rules and procedures of the American Arbitration
Association ("AAA") then in effect.
(c) Buyer and Seller agree that any dispute or controversy that is
to be arbitrated shall be arbitrated in accordance with AAA rules and procedures
then in effect, and discovery in the nature of that allowed under the rules and
procedures of the AAA then in effect will be afforded each party, and any
dispute with respect to such discovery shall also be settled by the arbitrator.
(d) The costs of arbitration shall be allocated by the arbitrator,
having due regard for the nature of the dispute, the contentions of the parties
and his or her decision on the merits of the dispute.
(e) Judgment may be entered on the arbitrator's award in any court
having jurisdiction.
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6.5 REMEDIES. Notwithstanding the provisions of Section 6.4 hereof
regarding the requirements of using the arbitration procedure set forth therein
for resolving and remedying claims for money damages arising out of the
provisions of Section 6.2, Buyer and Seller each have and retain all equitable
rights and remedies existing in their favor including, without limitation, any
actions for specific performance and/or injunctive or other equitable relief.
Except for equitable remedies, and except in the case of common law fraud, the
indemnification set forth in this Article VI shall be the exclusive remedies of
the Buyer Parties and Seller Parties for any misrepresentations, breaches of any
representations or warranties or the non-fulfillment or failure to perform any
covenant or agreement contained in this Agreement; provided, that recision shall
be available only in the case of common law fraud.
ARTICLE VII
ADDITIONAL AGREEMENTS
7.1 EMPLOYEES AND EMPLOYEE BENEFIT PLANS.
(a) Employees. Buyer shall have no obligation to offer employment
to any of the employees of Seller as of the Closing Date and no employees of
Seller (other than any employees of Seller who are employed by Buyer or any of
its Affiliates at any time after the Closing) shall under any circumstances be
considered as an employee of Buyer.
(b) Benefit Liabilities. Unless otherwise specifically set forth
herein to the contrary, Seller shall retain and be fully responsible for (i) all
liabilities, obligations and commitments relating to all wages, salaries,
bonuses and other forms of compensation and related expenses and (ii) all
employee benefits incurred or accrued under any and all plans, programs or
arrangements maintained or contributed to by Seller or any Affiliate.
(c) Buyer's COBRA Expense. Buyer agrees to pay to Seller on a
quarterly basis an amount equal to (i) the sum of (A) the aggregate amounts paid
by Seller with respect to claims for medical and dental treatment which occurs
after the date of this Agreement with respect to Seller's employees who elect
COBRA coverage after the date of this Agreement (the "COBRA Employees") plus (B)
the aggregate amounts paid by Seller since the date of this Agreement for excess
or stop-loss medical and dental insurance for the COBRA Employees less (ii) the
sum of (x) an amount equal to all applicable reserves of Seller that would
relate to medical and dental claims by COBRA Employees and that have not
previously been applied to any such medical and dental claims, plus (y) the
aggregate amount of all premiums received by Seller for COBRA coverage since the
date of this Agreement with respect to the COBRA Employees, plus (z) the
aggregate amount of all payments made by Buyer to Seller pursuant to this
Section 7.1(c) since the date of this Agreement; provided, that the amount
determined pursuant to this paragraph 7.1(c) shall never be less than zero and
further provided, that Buyer shall not be required to reimburse Seller for such
amount to the extent that such amount is included in the calculation of
Operating Losses pursuant to Section 7.11. Seller shall use commercially
reasonable efforts to maintain excess or stop-loss medical and dental insurance
reasonably comparable to that in effect on the date hereof until such time as
all COBRA Employees have terminated their coverage through Seller or ceased to
become
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eligible for continued COBRA coverage. For so long as Seller maintains such
excess or stop-loss medical and dental insurance, Buyer's obligations to
reimburse Seller pursuant to this Section 7.1(c) shall not exceed the sum of the
aggregate premium amounts paid by Seller for such excess or stop-loss insurance
plus the aggregate Seller-funded portion of the COBRA coverage under such
policy. Seller shall promptly notify Buyer if it is unable to maintain such
insurance.
7.2 PRESS RELEASES AND ANNOUNCEMENTS. Buyer, Seller, SCP and SCP
Pool shall consult with each other prior to issuing any press release or
otherwise making any public statement with respect to the contents of this
Agreement or the transactions contemplated hereby, and none of the parties
hereto shall issue any such press release or make any such public statement
prior to such consultation except which any party hereto in good faith believes
is required by law or applicable regulations or requirements of the New York
Stock Exchange or the NASDAQ Stock Market (in which case the disclosing party
will use its reasonable best efforts to advise the other party prior to making
the disclosure). Prior to the Closing, all other announcements to the employees,
customers or suppliers of Seller will be prepared by Seller in consultation with
Buyer and will be issued by Seller in accordance with past custom and practice,
except any public disclosure which any party hereto in good faith believes is
required by law or regulation (in which case the disclosing party will use its
best efforts to advise the other party prior to making the disclosure). After
the Closing Date, no other announcements to the employees, customers or
suppliers of the Business will be issued without Buyer's consent.
7.3 FURTHER AGREEMENTS AND TRANSFERS. Seller will execute and
deliver such further instruments of conveyance and transfer and take such
additional action as may be necessary to effect, consummate, confirm or evidence
the transfer to Buyer of the Purchased Assets and any other transactions
contemplated hereby. Seller will execute such documents as may be necessary to
assist Buyer in preserving or perfecting its rights in the Purchased Assets.
7.4 TAX MATTERS. The following provisions will govern the
allocation of responsibility as between Buyer and Seller for certain Tax matters
following the Closing Date:
(a) Certain Taxes. All transfer, documentary, sales, use, stamp,
registration and other such Taxes and fees (including any penalties and
interest) incurred in connection with this Agreement (i) shall be borne by Buyer
or Seller in accordance with local law; and (ii) shall be paid by Buyer or
Seller, as applicable, when due. Buyer or Seller, as applicable, will, at its
own expense, file all necessary Tax Returns and other documentation with respect
to all such transfer, documentary, sales, use, stamp, registration and other
Taxes and fees, and, if required by applicable law, the non-paying party will,
and will cause its affiliates to, join in the execution of any such Tax Returns
and other documentation.
(b) Allocation of Purchase Price. Each of Buyer and Seller shall,
and shall cause their respective Affiliates to, allocate the Purchase Price
among the Purchased Assets in a manner mutually agreed upon by Buyer and Seller
pursuant to Section 1060 of the Code in accordance with the fair market values
of the assets. Each of Buyer and Seller shall file Internal Revenue Service Form
8594 in a timely manner. In the absence of such a mutual agreement each of Buyer
and Seller
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shall make its own assessment of the fair market values of the assets for
purposes of filing Form 8594.
(c) Cooperation on Tax Matters. Buyer and Seller shall, and shall
cause their respective Affiliates to, cooperate fully, as and to the extent
reasonably requested by the other party, in connection with any audit,
litigation, preparation and filing of Tax Returns or other proceeding with
respect to Taxes. Such cooperation shall include the retention and (upon the
other party's request) the provision of records and information which are
reasonably relevant to any such audit, litigation or other proceeding and making
employees available on a mutually convenient basis to provide additional
information and explanation of any material provided hereunder. Buyer and Seller
agree (A) to retain all books and records with respect to Tax matters pertinent
to the Seller relating to any taxable period beginning before the Closing Date
until the expiration of the statute of limitations (and, to the extent notified
by Buyer or Seller, any extensions thereof) of the respective taxable periods,
and to abide by all record retention agreements entered into with any taxing
authority, and (B) to give the other party reasonable written notice prior to
transferring, destroying or discarding any such books and records and, if the
other party so requests, Buyer or Seller, as the case may be, shall allow the
other party to take possession of such books and records.
7.5 TRANSITION ASSISTANCE. Except in connection with the Transition
Plan, and only to the extent related to the Purchased Assets, neither Seller nor
Buyer will in any manner take any action which is designed, intended, or might
be reasonably anticipated to have the effect of discouraging customers,
suppliers, lessors, licensors and other business associates from maintaining the
same business relationships with Seller prior to the Closing Date or with Buyer
after the Closing Date as were maintained with Seller prior to and at the date
of this Agreement.
7.6 INVESTIGATION AND CONFIDENTIALITY.
(a) Prior to the Closing Date, Buyer may make or cause to be made
such investigation of Seller and the Purchased Assets as it deems necessary or
advisable to familiarize itself therewith. Seller will, and will cause its
officers, directors, employees and agents (including attorneys and accountants)
("Seller's Agents") to permit Buyer and its employees, agents, environmental
consultants, accounting and legal representatives and other representatives, and
potential lenders (and such lenders' audit staff) and their representatives to
have full and complete access (in a manner which does not materially disrupt the
Business) at all reasonable times, to the Business' facilities and to such
Seller's books, records, invoices, contracts, leases, personnel, independent
accountants, property, facilities, equipment and other data and information that
Seller may legally provide. Seller will, and will cause the Seller's Agents to
permit Buyer to inspect any of the Purchased Assets and to discuss the affairs,
finances and accounts of Seller with the directors, officers, independent
accountants, key employees, key customers, key sales representatives and key
suppliers of Seller.
(b)(i) If the transactions contemplated by this Agreement are
consummated, Seller agrees to use its best efforts to maintain the
confidentiality of all proprietary and other non-public information
regarding the Business for a period of 5 years from the Closing Date,
except as required to file tax returns and as required by law, and to turn
over to Buyer at the
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Closing copies of all such materials they have in its possession which
constitute Purchased Assets. In the event of the breach of any of the
provisions of this Section 7.6, the non-breaching party, in addition and
supplementary to other rights and remedies existing in its favor, may apply
to any court of law or equity of competent jurisdiction for specific
performance and/or injunctive or other relief (without the posting of bond
or other security) in order to enforce or prevent any violations of the
provisions hereof.
(ii) In the event that Seller reasonably believes after consultation
with counsel that it is required by law to disclose any confidential
information described in this Section 7.6(b), Seller will (A) provide Buyer
with prompt notice before such disclosure in order that Buyer may attempt
to obtain a protective order or other assurance that confidential treatment
will be accorded such confidential information and (B) cooperate with Buyer
in attempting to obtain such order or assurance. The provisions of this
Section 7.6 shall not apply to any information, documents or materials
which are, as shown by appropriate written evidence, in the public domain
or, as shown by appropriate written evidence, shall come into the public
domain, other than by reason of default by the applicable party bound
hereunder or its Affiliates.
7.7 EXPENSES. Buyer and Seller will each pay all of their own
expenses (including fees and expenses of legal counsel, investment bankers,
brokers or other representatives and consultants and appraisal fees and
expenses) incurred in connection with the negotiation of this Agreement and the
other agreements contemplated hereby and the performance of its or their
obligations hereunder and thereunder, and the consummation of the transactions
contemplated hereby and thereby (whether consummated or not).
7.8 WAIVER OF COMPLIANCE WITH BULK SALES LAWS. Buyer hereby waives
compliance by Seller with the requirements of any bulk sales or transfers laws
of any jurisdiction in connection with the sale of the Purchased Assets to Buyer
(if and to the extent such laws are applicable to such sale); provided that such
waiver shall not affect the obligation of Seller under Section 6.2 to indemnify
Buyer and hold Buyer harmless from and against any Losses which Buyer may
suffer, sustain or become subject to as a result of the assertion or recovery
against Buyer of the Excluded Liabilities set forth in Section 1.1(d) hereof.
7.9 PRORATIONS.
(a) The expenses and obligations set forth below shall be prorated
as of 11:59 p.m. on the business day immediately preceding the Closing Date,
with Seller being responsible for that portion arising prior thereto and Buyer
being responsible for that portion arising subsequent thereto: all real property
taxes, personal property taxes, ad valorem obligations and similar taxes imposed
on a periodic basis, in each case levied with respect to the Purchased Assets
(if any) shall be prorated on the basis of the number of days of the relevant
Tax year or period which have elapsed through the Closing Date.
(b) If any item described in this Section 7.9 cannot be prorated,
adjusted or determined as of the Closing Date, then it shall be separately
prorated, adjusted and determined as
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soon as possible thereafter with payment of an amount equal to the amount
charged against any party being paid by such party to any other party by check
within five (5) days after determination of the charge.
7.10 GUARANTY. Each of SCP and SCP Pool hereby guaranties the
payment and performance of the obligations of Seller under this Agreement and
each of the other agreements and instruments referred to herein. The obligations
of SCP and SCP Pool under this Section 7.10 are absolute and unconditional,
irrespective of any substitution, release or exchange of any other guarantee of
or security for any of the obligations of Seller under this Agreement or any
other agreement or instrument referred to herein, 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. Each of SCP and SCP Pool hereby expressly waives diligence,
presentment, demand of payment, protest and all notices whatsoever, and any
requirement that Buyer exhaust any right, power or remedy or proceed against
Seller under this Agreement or any other agreement or instrument referred to
herein, or against any other Person under any other guarantee of, or security
for, any of the obligations of Seller under this Agreement or any other
agreement or instrument referred to herein.
7.11 OPERATING LOSSES AND NET INCOME.
(a) In the event Seller incurs cash operating losses ("Operating
Losses") for the period beginning on the date hereof and ending on the Closing
Date (the "Pre-Closing Period"), Buyer agrees to reimburse Seller for the amount
of such Operating Losses in accordance with this Section 7.11, provided that the
aggregate amount reimbursed pursuant to this Section 7.11 shall not exceed
$100,000.
(b) If Seller determines that it has incurred Operating Losses for
the Pre-Closing Period, then within 60 days after the Closing Date Seller shall
prepare and deliver a net income and expense statement for the Pre-Closing
Period (the "Net Income Statement") reflecting Seller's determination of the
Operating Losses, which statement shall be prepared in a manner consistent with
GAAP and in accordance with Schedule 7.11 attached hereto. Seller shall promptly
make available to Buyer all information used by Seller in preparing the Net
Income Statement and such other information as Buyer reasonably deems necessary
in order for Buyer to review Seller's determination of the Operating Losses.
(c) If Buyer disagrees with Seller's determination of the Operating
Losses, Buyer shall notify Seller in writing of such disagreement within 30 days
from the date Buyer receives the Net Income Statement. Such writing shall be
accompanied by a written notice from Buyer's accountants setting forth the basis
for such disagreement in reasonable detail. Buyer and Seller thereafter shall
negotiate in good faith to resolve any such disagreements. If Buyer and Seller
are unable to resolve any such disagreements within 15 days after delivery of
Buyer's objection letter, Buyer and Seller shall submit such dispute to an
independent "Big Six" accounting firm mutually agreeable to Buyer and Seller for
resolution consistent with GAAP and in accordance with Schedule 7.11 attached
hereto. If Buyer and Seller are unable to mutually agree on such an accounting
firm, a "Big Six" accounting firm will be selected by lot after eliminating one
firm designated as
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objectionable by each of Buyer and Seller (any accounting firm so selected or
agreed upon shall be referred to herein as the ("Independent Auditor")).
(d) Buyer and Seller shall use their best efforts to cause the
Independent Auditor to resolve all disagreements over the Operating Losses as
soon as practicable, but in any event within 45 days after submission of the
disputes to the Independent Auditor. The resolution of such disagreements and
the determination of the Operating Losses shall be final and binding on Buyer
and Seller.
(e) The Independent Auditor shall determine the allocation of its
costs and expenses in determining the Operating Losses based upon the percentage
which the portion of the contested amount not awarded to each party bears to the
amount actually contested by such party. Buyer and Seller shall pay the
Independent Auditor's fees and expenses based on such allocation.
(f) As soon as practicable (but in no event later than five
business days) after the Operating Losses have been determined pursuant to this
Section 7.11, Buyer shall reimburse Seller in immediately available funds for
the amount of such Operating Losses.
(g) In the event that Seller has net income for the Pre-Closing
period ("Net Income") then the aggregate amount required to be paid by Buyer to
Seller pursuant to Section 7.15 shall be reduced by the amount of such Net
Income. Net Income shall be calculated in a manner consistent with Schedule
7.11, except that all depreciation and amortization expenses of Seller shall be
included in the calculation of Net Income.
7.12 ASSET REMOVAL DAMAGE. Buyer agrees to promptly repair any
damage to any of Seller's facilities resulting from the removal of the Purchased
Assets from Seller's facilities provided such damage is required to be repaired
pursuant to the terms of the applicable Lease.
7.13 MISDIRECTED REMITTANCES. In the event that Buyer receives any
remittance from or on behalf of any account debtor with respect to any sale made
by Seller prior to the Closing Date, Buyer shall endorse such remittance to the
order of Seller and forward same to Seller promptly upon receipt thereof. In the
event that Seller receives any remittance from or on behalf of any account
debtor with respect to any sale made by Buyer on or after the Closing Date,
Seller shall endorse such remittance to the order of Buyer and forward same to
Buyer promptly upon receipt thereof.
7.14 COSTS TO RESTORE LEASED PREMISES. Seller shall notify Buyer in
advance of any work to be performed in order to restore the Real Property to the
condition required pursuant to the applicable Lease. Buyer shall promptly, upon
receipt of a request for payment from Seller which includes a report, in
reasonable detail, regarding the restoration work performed, reimburse Seller
for all costs and expenses incurred by Seller in restoring the Real Property to
the condition required pursuant to the applicable Lease; provided, that the
aggregate amount of reimbursements from Buyer to Seller pursuant to this Section
7.14 shall not exceed $150,000. Seller shall use commercially reasonable efforts
to mitigate the restoration costs for which Buyer is required to reimburse
Seller pursuant to this Section 7.14.
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7.15 OTHER REIMBURSEMENTS.
(a) Buyer shall promptly, upon receipt of a request for payment, reimburse
Seller for all payments made, and costs and expenses incurred, by Seller with
respect to Seller's obligations:
(i) for rent, utilities, insurance and taxes required to be paid under
the Leases from the date of this Agreement to the earliest applicable
termination date under each such Lease;
(ii) under the agreements, leases, contracts and commitments marked with a
cross(+) on Schedule 3.11 attached hereto (the "Designated
Services") from the date of this Agreement to the Closing Date and,
after the Closing Date, at Buyer's request to the extent that any of
the Designated Services are provided at any of the facilities covered
by the Leases during Buyer's removal of the Purchased Assets from
such facilities, following the Closing Date;
(iii) for any severance claims by persons who were Seller's employees as of
the date of this Agreement, provided that Buyer's liability for each
such severance claim shall not exceed the amount of severance pay
which would be available to such person pursuant to the Seller's
severance policy in effect as of the date of this Agreement, a copy
of which has been provided to Buyer;
(iv) for medical and dental claims for covered treatment which occurs
between the date of this Agreement and the Closing Date under
Seller's medical and dental insurance plans, less an amount equal to
any applicable reserves of Seller that would relate to such claims
and which have not yet been applied with respect to any such claim;
(v) for workers compensation claims for events which occur between the
date of this Agreement and the Closing Date, less an amount equal to
any applicable reserves of Seller that would relate to such claims
and which have not yet been applied with respect to any claim;
(vi) claims made by or on behalf of persons who were employees of Seller
as of the date of this Agreement and who are employed by or on behalf
of Buyer in connection with Buyer's removal of the Purchased Assets
from Seller's facilities with respect to personal injury sustained or
entitlement to benefits following the Closing Date; and
(vii) profit sharing contributions made to Seller's profit sharing plan for
the 1996 plan year, to the extent earned by employees of Seller from
the date of this Agreement to the Closing Date;
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provided, that Seller shall not be required to reimburse Buyer for any amount
with respect to any of the items listed above to the extent that such amount is
included in the calculation of Operating Losses pursuant to Section 7.11.
(b) Seller shall make available to Buyer all information in Seller's
possession which is necessary to verify the reimbursements due pursuant to this
Section 7.15.
7.16 FIFRA. Seller represents and warrants within the meaning of the
Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA") (S) 12(b) that each
item of Inventory which qualifies as a pesticide under FIFRA and which is
purchased and received in good faith by Buyer in the same unbroken package as
shipped by Seller, will be lawfully registered at the time of such sale and
delivery and will comply with all other requirements established under FIFRA.
ARTICLE VIII
MISCELLANEOUS
--------------
8.1 AMENDMENT AND WAIVER. This Agreement may be amended and any provision
of this Agreement may be waived, provided that any such amendment or waiver will
be binding upon a party only if such amendment or waiver is set forth in a
writing executed by Buyer and Seller. No course of dealing between or among any
persons having any interest in this Agreement will be deemed effective to
modify, amend or discharge any part of this Agreement or any rights or
obligations of any party under or by reason of this Agreement.
8.2 NOTICES. All notices, demands and other communications given or
delivered under this Agreement will be in writing and will be deemed to have
been given when personally delivered, mailed by first class mail, return receipt
requested, delivered by express courier service or telecopied. Notices, demands
and communications to Seller and Buyer will, unless another address is specified
in writing, be sent to the address indicated below:
Notices to Buyer:
----------------
Bio-Lab, Inc.
627 East College Avenue
Decatur, Georgia 30030
Attention: Larry Bloom, President
Telecopy: (404) 370-7499
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with a copy to:
--------------
Great Lakes Chemical Corporation
Post Office Box 2200
One Great Lakes Boulevard
West Lafayette, Indiana 47906
Attention: Louis T. Bolognini
Telecopy: (317) 497-6123
and to
Smith, Gambrell & Russell
3343 Peachtree Road, N.E.
Suite 1800
Atlanta, Georgia 30326
Attention: Robert I. Paller
Telecopy: (404) 264-2652
Notices to Seller, SCP and SCP Pool:
-----------------------------------
South Central Pool Supply, Inc.
128 Northpark Boulevard
Covington, Louisiana 70433-5077
Attention: W.B. Sexton
Telecopy: (504) 892-1657
with a copy to:
--------------
Code, Hennessy & Simmons, Inc.
Suite 3175
10 South Wacker Drive
Chicago, Illinois 60606
Attention: Peter M. Gotsch
Telecopy: (312) 876-3884
and to
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
Attention: Stephen L. Ritchie
Telecopy: (312) 861-2200
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8.3 BINDING AGREEMENT; ASSIGNMENT. This Agreement and all of the
provisions hereof will be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns (including all
successors and assigns in the event of a liquidation or dissolution of Buyer or
Seller), except that neither this Agreement nor any of the rights, interests or
obligations hereunder may be assigned or delegated by Buyer or Seller without
the prior written consent of the other party, which shall not be unreasonably
withheld.
8.4 SEVERABILITY. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provisions or the remaining provisions of this Agreement.
8.5 NO STRICT CONSTRUCTION. The language used in this Agreement
shall be deemed to be the language chosen by the parties hereto to express their
collective mutual intent, and no rule of strict construction shall be applied
against any person. The term "including" as used herein shall be by way of
example and shall not be deemed to constitute a limitation of any term of
provision contained herein.
8.6 CAPTIONS AND HEADINGS. The captions and headings used in this
Agreement are for convenience of reference only and do not constitute a part of
this Agreement and will not be deemed to limit, characterize or in any way
affect any provision of this Agreement, and all provisions of this Agreement
will be enforced and construed as if no caption had been used in this Agreement.
8.7 ENTIRE AGREEMENT. This Agreement, including the exhibits and
schedules hereto, and the agreements and instruments referred to herein and
therein and the other written agreements entered into contemporaneously herewith
contain the entire agreement between the parties and supersede any prior
understandings, agreements or representations by or between the parties, written
or oral, which may have related to the subject matter hereof in any way.
8.8 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original but all of which taken
together will constitute one and the same instrument.
8.9 GOVERNING LAW. THE LAW OF THE STATE OF GEORGIA SHALL GOVERN ALL
QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY, INTERPRETATION AND
ENFORCEABILITY OF THIS AGREEMENT AND THE EXHIBITS AND SCHEDULES HERETO, AND THE
PERFORMANCE OF THE OBLIGATIONS IMPOSED BY THIS AGREEMENT, WITHOUT GIVING EFFECT
TO ANY CHOICE OF LAW OR CONFLICT OF LAW RULES OR PROVISIONS (WHETHER OF THE
STATE OF GEORGIA OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF
THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF GEORGIA.
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8.10 PARTIES IN INTEREST. Nothing in this Agreement, express or
implied, is intended to confer on any person other than the parties and their
respective successors and assigns any rights or remedies under or by virtue of
this Agreement.
ARTICLE IX
CERTAIN DEFINITIONS
--------------------
For purposes of this Agreement, the following terms shall have the
meanings set forth below:
"Agreement" means this Agreement and the schedules and Exhibit A
attached hereto.
"Affiliate" of any particular Person means any other Person
controlling, controlled by or under common control with such particular Person,
where "control" means the possession, directly or indirectly, of the power to
direct the management and policies of a Person whether through the ownership of
voting securities, contract or otherwise.
"Affiliated Group" means an affiliated group as defined in Section
1504 of the Code (or any analogous combined, consolidated or unitary group
defined under state, local or foreign income Tax law).
"Code" means the Internal Revenue Code of 1986, as amended.
"GAAP" means generally accepted accounting principles, consistently
applied.
"knowledge" means, with respect to Seller, the actual knowledge of the
operations director or general manager of Seller or any officer of Seller.
"Liens" means any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including, without limitation, any conditional sale
or other title retention agreement or lease in the nature thereof), any sale of
receivables of Seller with recourse against Seller, any filing or agreement to
file a financing statement as debtor under the Uniform Commercial Code or any
similar statute other than to reflect ownership by a third party of property
leased to Seller under a lease which is not in the nature of a conditional sale
or title retention agreement, or any subordination arrangement in favor of
another Person (other than any subordination arising in the ordinary course of
business); provided that Liens shall not include any Permitted Encumbrance.
"Material Adverse Effect" means a material adverse effect on the
business, financial condition, operating results, assets or operations of the
Business.
"Permitted Encumbrances" means (a) statutory liens for current taxes
or other governmental charges with respect to the Real Property not yet due and
payable or the amount or validity of which is being contested in good faith by
appropriate proceedings by Seller and for which appropriate reserves have been
established in accordance with GAAP; (b) mechanics, carriers,
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workers, repairers and similar statutory liens arising or incurred in the
ordinary course of business for amounts which are not delinquent and which are
not, individually or in the aggregate, material to the Business; (c) zoning,
entitlement, building and other land use regulations imposed by governmental
agencies having jurisdiction over the Real Property which are not violated by
the current use and operation of the Real Property; and (d) covenants,
conditions, restrictions, easements and other similar matters of record
affecting title to the Real Property which do not materially impair the
occupancy or use of the Real Property for the purposes for which it is currently
used in connection with the Business.
"Person" means an individual, a partnership, a corporation, an
association, a limited liability company, a joint stock company, a trust, a
joint venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, association or other business entity of which (i) if a corporation,
a majority of the total voting power of shares of stock entitled (without regard
to the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly or
indirectly, by that Person or one or more of the other Subsidiaries of that
Person or a combination thereof, or (ii) if a partnership, association or other
business entity, a majority of the partnership or other similar ownership
interest thereof is at the time owned or controlled, directly or indirectly, by
any Person or one or more Subsidiaries of that Person or a combination thereof.
For purposes hereof, a Person or Persons shall be deemed to have a majority
ownership interest in a partnership, association or other business entity if
such person or Persons shall be allocated a majority of partnership, association
or other business entity gains or losses or shall be or control the managing
director or general partner of such partnership, association or other business
entity.
"Tax" means any (A) federal, state, local or foreign income, gross
receipts, franchise, estimated, alternative minimum, add-on minimum, sales, use,
transfer, registration, value added, excise, natural resources, severance,
stamp, occupation, premium, windfall profit, environmental, customs, duties,
real property, personal property, capital stock, social security, unemployment,
disability, payroll, license, employee or other withholding, or other tax, of
any kind whatsoever, including any interest, penalties or additions to tax or
additional amounts in respect of the foregoing; (B) liability of Seller for the
payment of any amounts of the type described in clause (A) arising as a result
of being (or ceasing to be) a member of any Affiliated Group (or being included
(or required to be included) in any Tax Return relating thereto); and (C)
liability of Seller for the payment of any amounts of the type described in
clause (A) as a result of any express or implied obligation to indemnify or
otherwise assume or succeed to the liability of any other person;
"Tax Returns" means returns, declarations, reports, claims for refund,
information returns or other documents (including any related or supporting
schedules, statements or information) filed or required to be filed in
connection with the determination, assessment or collection of Taxes of any
party or the administration of any laws, regulations or administrative
requirements relating to any Taxes.
* * * *
-34-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
BIO-LAB, INC.
/s/ Larry J. Bloom
-----------------------------------
By: Larry J. Bloom
--------------------------------
Its: President
-------------------------------
ALLIANCE PACKAGING, INC.
/s/ Wilson B. Sexton
-----------------------------------
By: Wilson B. Sexton
--------------------------------
Its: President
-------------------------------
SCP POOL CORPORATION
/s/ Wilson B. Sexton
-----------------------------------
By: Wilson B. Sexton
--------------------------------
Its: Chariman
-------------------------------
SOUTH CENTRAL POOL SUPPLY, INC.
/s/ Wilson B. Sexton
-----------------------------------
By: Wilson B. Sexton
--------------------------------
Its: Chairman
-------------------------------
<PAGE>
SCHEDULES AND EXHIBITS
----------------------
<TABLE>
<CAPTION>
<S> <C>
Schedule 1.1(b)(iii) - Excluded Assets
Schedule 1.1(b)(v) - Excluded Agreements
Schedule 1.2(c) - Fixed Asset Purchase Price
Schedule 3.1 - Qualification/Incorporation
Schedule 3.4 - Conflicts
Schedule 3.5 - Financial Statements
Schedule 3.6 - Undisclosed Liabilities
Schedule 3.7 - Developments
Schedule 3.8 - Real Property; Title to Purchased
Assets
Schedule 3.9 - Environmental and Safety Matters
Schedule 3.11 - Contracts
Schedule 3.12 - Litigation
Schedule 3.14 - Governmental Licenses, Permits and
Consents
Schedule 3.16 - Employee Benefit Matters
Schedule 3.17 - Affiliate Transactions
Schedule 3.18 - Compliance with Laws
Schedule 7.11 - Net Income Statement Calculation
Exhibit A - Transition Plan
Exhibit B - Form of Bill of Sale
Exhibit C - Form of Assignment Agreement
Exhibit D - Noncompetition Agreement
</TABLE>
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from
consolidated financial statements and is qualified in its entirety by reference
to such financial statements.</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-END> SEP-30-1996
<CASH> 6,099
<SECURITIES> 0
<RECEIVABLES> 19,158
<ALLOWANCES> (1,656)
<INVENTORY> 53,143
<CURRENT-ASSETS> 78,348
<PP&E> 7,354
<DEPRECIATION> (1,508)
<TOTAL-ASSETS> 119,881
<CURRENT-LIABILITIES> 53,607
<BONDS> 58,986
<COMMON> 4
0
0
<OTHER-SE> 40,133
<TOTAL-LIABILITY-AND-EQUITY> 119,881
<SALES> 189,356
<TOTAL-REVENUES> 189,356
<CGS> 146,510
<TOTAL-COSTS> 174,594
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 1,153
<INTEREST-EXPENSE> 2,450
<INCOME-PRETAX> 12,889
<INCOME-TAX> 5,029
<INCOME-CONTINUING> 7,860
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 7,860
<EPS-PRIMARY> 1.86
<EPS-DILUTED> 1.83
</TABLE>
