SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10-K
[X] Annual Report Pursuant to Section 13 or 15 (d) of the Securities Exchange
Act of 1934
[Fee Required]
For the fiscal year ended December 31, 1995
[ ] Transition Report Pursuant to Section 13 or 15 (d) of the Securities
Exchange Act of 1934
[No Fee Required]
For the transition period from to
Commission file number 0-3108
TRION, INC.
(Exact name of Registrant as specified in its charter)
Commonwealth of Pennsylvania 25-0922753
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
P.O. Box 760, 101 McNeill Road
Sanford, North Carolina 27331-0760
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (919)775-2201
Securities registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which registered
None None
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, par value $.50
(Title of class)
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 requirement for the past 90 days.
YES X NO
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of regulation S-K is not contained herein, and will not be contained, to the
best of Registrant's knowledge, in definitive proxy information statements
incorporated by reference in Part III of this Form 10-K or any amendment to
this Form 10-K. [ ]
State the aggregate market value of the voting stock held by non-affiliates of
the Registrant as of March 1, 1996.
Common Stock, par value $.50 - $35,380,111
Indicate the number of shares outstanding of each of the Registrant's classes
of common stock as of March 1, 1996.
6,467,483 shares of Common Stock, par value $.50
Portions of the annual Proxy Statement dated March 13, 1996 are incorporated
by reference into Part III.
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<PAGE>
PART I
Item 1. Business.
General
Trion, Inc. (the "Company" or "Trion") was incorporated in 1946 in
the Commonwealth of Pennsylvania and is principally engaged in the design,
manufacture, sale and distribution of equipment to improve indoor air quality
("IAQ"). On August 1, 1995 the Company acquired Envirco Corporation
("Envirco"), a manufacturer and distributor of ultra-clean air systems and
components located in Albuquerque, New Mexico.
Products and Markets
The Company's industry segments are Engineered Products, Consumer
Products and European Operations. European Operations consists of sales and
distribution primarily in Europe of both engineered and consumer IAQ products
manufactured at Trion's two U.S. facilities.
Engineered Products. The Engineered Products group designs,
manufactures and sells indoor air quality and dust collection equipment and
systems primarily designed for industrial, residential, commercial and
specialty uses. These products are used in a wide variety of industries
including microelectronics, residential, metal working, pharmaceuticals,
medical, commercial buildings, general manufacturing and ships and submarines.
Products range from custom-engineered systems that remove large volumes of
airborne contaminants caused by industrial processes to self-contained air
cleaners used to capture tobacco smoke, dust and pollen in environments such
as enclosed work areas, restaurants and homes.
Through its recently acquired Envirco subsidiary, the Company
utilizes high efficiency particulate arrestance ("HEPA") and ultra low
particulate arrestance ("ULPA") technologies in applications including
cleanrooms in the semiconductor and microelectronics industries and systems to
provide hospitals with clean environments for surgery rooms, cancer research,
patient isolation and sterile medication preparation. The Company's products
include the patented MAC-10 used in cleanroom applications and Hospi-Gard , a
portable filtration unit used in medical applications.
The Company also manufacturers equipment to electrostatically
distribute microthin films of lubricants, corrosion inhibitors and other
protective coatings to metal strips on high speed lines.
Consumer Products. The Company's Consumer Products group
manufactures and markets appliance air cleaners, including both tabletop and
free standing console units. Trion's appliance units historically have been
marketed principally to retailers and others on a private label basis. In
recent years, the Company has begun to market products under Trion brand
names.
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<PAGE>
Technologies
In its air cleaning products, the Company utilizes what it
believes to be the industry's broadest range of technologies to collect
airborne contaminants.
- HEPA filtration utilizes laminar flow filtration which ensures
even and constant airflow and has 99.97% efficiency on .3
micron size particles. ULPA filtration functions similarly
and has 99.999% efficiency on .12 micron size particles. These
processes provide the level of airborne contamination control
essential for applications requiring ultra-clean air, such as
cleanrooms and hospital and laboratory settings.
- Electrostatic precipitators are high efficiency electronic
air filters. In an electrostatic precipitator, air passes
through an ionizing section where airborne particles are
electrically charged by ions in an electrostatic field.
The charged particles then enter a collecting cell where
the particles are repelled from charged plates and collected
on grounded plates within the cell. This process is highly
effective at capturing submicron particulate, including
particulate found in tobacco smoke, dust, pollen, welding
smoke and oil mists from machining operations.
- In a media filtration system, air passes through media
filters that trap airborne particles. Some of these
filters, like cartridge collectors, can collect submicron
particulate, such as welding smoke, as well as larger
particulate. Other filters, like bag collectors, are
useful for larger particulate such as that generated in
machining and welding processes. In some systems, air
passes through a prefilter where large particles are
collected and then pass through a second or third media
filter where smaller particles are collected.
Raw Materials and Purchased Components
Raw materials and components used by the Company in the
manufacturing process are either readily available from a number of suppliers
or are manufactured by the Company from raw materials that have such
availability.
Aluminum and steel represent principal raw materials in the
Company's products and prices continued to rise significantly during 1995.
Prices for aluminum and steel can be subject to wide fluctuation and the
Company's products cannot always be priced to take into account such
fluctuations, especially in the short term. Other significant materials used
by the Company include motors, blowers, injection molded plastics, filter
paper, media filters, packaging materials and various electrical components.
In aggregate, the cost of materials in 1995 increased slightly ahead of the
consumer price index. The Company anticipates similar cost increases during
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1996. The Company intends to take actions, including price increases and cost
containment measures, to help mitigate the impact of such increases.
Sales and Distribution
Engineered Products are sold in North America to end users,
contractors and distributors directly as well as through manufacturers'
representatives and the Company's own sales force. Consumer Products are sold
directly to retailers, distributors and other companies for ultimate sale to
consumers through retail outlets.
Trion sells appliance air cleaners on a recurring basis to Sears,
Roebuck and Co. within Consumer Products. This customer represented
approximately 14% of consolidated sales in 1995 and the loss of the account
could have an adverse effect on the Company.
The Company's indoor air quality products are sold throughout the
world. Through Trion Limited, a wholly-owned subsidiary, the Company has a
marketing and distribution office in Andover, England, servicing primarily the
European market directly and through distributors and representatives. The
Company's products are also sold in other countries outside Europe through
distributors and representatives, principally in the Pacific Rim.
Competition
While the Company is a principal competitor in most of its
markets, the indoor air quality industry is highly competitive. In Engineered
Products, the Company and its major competitors, Honeywell, Inc.,
White-Rodgers, a division of Emmerson Electric, Research Products,
United Air Specialists, Inc., American Air Filter Co., Inc., Torit,
a division of Donaldson Co., Inc., Farr Company, and Flanders Filters, Inc.,
account for the predominant share of the market in the lines in which they
compete. In Consumer Products, while appliance air cleaners are sold by a
large number of companies, Honeywell, Inc., Bionaire, Inc. and Trion together
have the predominant share of the market. Of the three, Trion is the only
manufacturer of electronic appliance air cleaners. Principal competitors
outside the United States include some of these companies as well as foreign
competitors. Competition in the Company's market segment is primarily on the
basis of price, product technology, product quality and customer service; with
a majority of the Company's business obtained through competitive bidding.
Some of the Company's competitors have assets and/or sales substantially in
excess of the Company.
Patents and Trademarks
The Company holds a number of patents that relate to the design
and use of its products, some of which it considers significant to the overall
conduct of the Company's business. No patents which the Company considers
significant will expire within the next five years.
The Company owns several trademarks that it considers important in
the marketing of its products and believes that its rights in these trademarks
are adequately protected and of unlimited duration.
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Research and Development
The Company's ongoing research and development program involves
creating new products and redesigning existing products to reduce
manufacturing costs and to increase product efficiencies. During 1995, 1994
and 1993, the Company spent approximately $771,000, $531,000 and $515,000,
respectively, on research and development activities.
Employees
As of December 31, 1995, the Company employed approximately 439
persons worldwide. The Company's employees are not represented by a union.
The Company believes its employee relations are satisfactory.
Backlog
The backlog of unfilled orders at December 31, 1995 was $9,301,000
compared to $4,023,000 at the prior year-end. Substantially all of this
backlog is scheduled for shipment during 1996.
Risks
As a cautionary note to investors, statements made in this Annual
Report on Form 10-K which are not historical are forward - looking
statements that involve risks and uncertainties. There are several important
factors that could cause actual results to differ materially from those
anticipated. Such factors include, but are not limited to, those set forth
below.
Acquisition Strategy
The Company has initiated an acquisition program as part of its
strategic plan. The Company's acquisition strategy entails the potential risk
inherent in assessing the value, strengths, weaknesses, contingent and other
liabilities and potential profitability of acquisition candidates and in
integrating the operations of acquired companies. There can be no assurance
that suitable acquisition opportunities will be available, that the Company
will have access to the capital required to finance potential acquisitions,
that the Company will continue to acquire businesses or that any business
acquired will be integrated successfully or prove profitable.
Potential Fluctuations in Operating Results
The Company can experience fluctuations in operating results, both
on a quarterly and annual basis, caused by various factors, including general
economic conditions and the factors discussed below under "Cyclicality".
Fluctuations in the Company's operating results, particularly quarter-to-
quarter, are also affected in certain of its markets by the timing of customer
orders, the pattern of customer purchasing cycles and the resulting changes in
product mix.
Fluctuations in Raw Material Costs
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Aluminum and steel represent principal raw materials in the
Company's air cleaning products. Prices for both products can be subject to
wide fluctuation and the Company's products cannot always be priced to take
into account such fluctuations, especially in the short term. See "Business -
Raw Materials and Purchased Components" for a more detailed discussion of raw
materials used in the Company's business.
Cyclicality
A significant percentage of the Company's sales of residential
wholehouse air cleaners is dependent upon new residential construction, which
is a cyclical industry. In addition, the Company has substantial sales of
products for cleanroom applications to the microelectronics industry, which
can be cyclical. Sales of Engineered Products in general are also tied to
capital spending levels.
Competition
While the Company is a principal competitor in most of its markets,
the indoor air quality industry is highly competitive. Competition is
primarily on the basis of price, product quality, product technology and
customer service, with a majority of the Company's business obtained through
competitive bidding. See "Business - Competition" for a more detailed
discussion of competition in the Company's markets.
Intellectual Property
The Company's success is dependent in part on its ability to
protect proprietary technology contained in certain of its products. While
Trion's critical technologies are patented, there can be no assurance that
this will prove sufficient to deter misappropriation of those technologies or
independent third-party development of rival technologies, which would have an
adverse effect on the Company's sales. The defense and prosecution of patent
suits are both costly and time-consuming, even if the outcome is favorable to
the Company. In foreign countries, the expenses associated with such
proceedings can be prohibitive. In addition, there is an inherent
unpredictability in obtaining and enforcing patents in foreign countries.
Reliance on Key Personnel
The Company's operations are dependent on the continued efforts of
senior management, in particular Steven L. Schneider, its President and Chief
Executive Officer. Should any of the senior managers be unable to continue in
their present roles, the Company's prospects could be adversely affected.
Potential Regulatory Risks
The Company's business and products may be significantly
influenced by the constantly changing body of environmental laws and
regulations, which require that certain environmental standards be met and
impose liability for the failure to comply with such standards. While the
Company endeavors at both of its facilities to assure compliance with
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<PAGE>
environmental laws and regulations, future changes in such standards could
have an adverse effect on the Company. In addition, to some extent, changes
in the liabilities and risks imposed by the environmental laws on the
Company's customers could impact demand for certain of the Company's products
or impose greater liabilities and risks on the Company, which could also have
an adverse effect on the Company's business.
International Transactions
The Company has sold and expects it will continue to sell products
in areas outside the United States. Such transactions entail the risks
associated with conducting business internationally, including the risk of
currency fluctuations, slower payment of invoices and possible social,
political and economic instability.
Item 2. Properties.
The Company owns a 263,000 square foot modern brick facility on 27 acres in
Sanford, North Carolina which houses the Company's corporate headquarters as
well as manufacturing, engineering, sales and distribution operations. This
property plus equipment are pledged to secure industrial revenue bonds
totaling $3,200,000 at December 31, 1995. The bonds mature on November 1,
2011. The carrying value of assets pledged to secure these bonds was
approximately $3,700,000 at December 31, 1995. In addition, the Company
leases a 45,000 square foot facility in Albuquerque, New Mexico which houses
Envirco and which expires in 1998.
Foreign properties consist of a 53,000 square foot facility located in
Andover, England owned by the Company.
The Company's facilities in Sanford and Andover, while suitable for
their intended uses, have excess capacity for current needs. The facility in
Albuquerque is approaching full capacity. The facility in Andover, England
remains for sale.
Item 3. Legal Proceedings.
Neither the Company nor its subsidiaries are party to any material
pending legal proceedings nor is any of their property subject to such
proceedings.
Item 4. Submission of Matters to a Vote of Security Holders.
Not applicable.
Item 4.(a) Executive Officers of the Registrant.
Positions and
Name Age Office Held
Steven L. Schneider (1) 52 President, Chief
Executive Officer
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Brian H. Boender (2) 46 Vice President - Sales
and Marketing
Charles A. Haynes (3) 47 Vice President -
Engineering
Calvin J. Monsma (4) 44 Vice President and
Chief Financial Officer
J. Gary Waters (5) 50 Vice President -
Operations
On March 31, 1993 the Company and Mr. Schneider entered into an employment
agreement which was subsequently amended and restated on July 28, 1995 (the
"Agreement") providing for his employment as President and Chief Executive
Officer for a three-year term commencing on May 24, 1993. A more complete
discussion regarding the Agreement may be found under the caption
"Compensation Agreements" on page 11 of the annual Proxy Statement dated March
13, 1996 and is incorporated herein by reference. All other executive
officers serve at the discretion of the Board.
(1) Mr. Schneider joined the Company on May 24, 1993. For a period of more
than five years prior to joining the Company, Mr. Schneider served as Group
President of Tomkins Industries U.S.A., a subsidiary of Tomkins PLC, a
diversified manufacturing company.
(2) Prior to joining the Company on July 19, 1993, Mr. Boender was Vice
President-International for White-Rodgers (Division of Emerson Electric Co.),
a leading manufacturer in the HVAC industry, from May 1992 until July 1993 and
Vice President-Sales and Marketing from 1989 until 1992. Prior to joining
White-Rodgers, Mr. Boender was Vice President-Marketing for Warner Electric, a
worldwide manufacturer of industrial electromechanical and electronic
products.
(3) Prior to joining the Company on July 6, 1994, Mr. Haynes was Engineering
Director of Heating Products for NORDYNE, a leading manufacturer of HVAC
products for modular housing and residential applications from August 1992
until June 1994. Prior to joining NORDYNE, for a period of more than three
years, Mr. Haynes was the Engineering Program Manager for New Product
Development at United Technologies Corporation's Allied Products Division of
Carrier Air Conditioning and was responsible for the design and development of
various indoor air quality and electric heat products.
(4) Prior to joining the Company on July 11, 1994, Mr. Monsma was employed by
Concurrent Computer Corporation, a leading provider of high-performance real-
time computer systems, serving as Director of Finance for worldwide sales and
international operations until he joined the Company.
(5) Mr. Waters was promoted to Vice President - Operations on September 1,
1994. Prior to that, he had served the Company as Vice President and
Controller since 1989.
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PART II
Item 5. Market for Registrant's Common Equity and Related Stockholder
Matters.
MARKET AND DIVIDEND INFORMATION
The Company's common stock trades on the Nasdaq National Market under the
symbol: "TRON". There were 1,015 shareholders of record on January 16, 1996.
There were no dividends declared in 1994. High and low closing sales prices
by quarter for the last two years and dividends declared in 1995 were:
1995
1995 Market Price Dividends 1994 Market Price
Quarter Ended High Low Declared High Low
March 31. . . . . . . . $6.25 $4.62 $0.02 $6.50 $4.75
June 30 . . . . . . . . $6.25 $5.12 $0.02 $7.13 $5.50
September 30. . . . . . $6.62 $5.38 $0.02 $6.13 $4.63
December 31 . . . . . . $6.25 $4.88 $0.02 $5.88 $4.63
Item 6. Selected Financial Data.
FINANCIAL AND PERFORMANCE HIGHLIGHTS
(dollars in thousands, except per share data)
<TABLE>
<CAPTION>
1995 1994 1993 1992 1991
<S> <C> <C> <C> <C> <C>
Net Sales . . . . . . . . . . $43,695 $34,077 $34,568 $33,571 $34,937
Net Income (Loss) . . . . . . $ 2,234 $ 1,779 $ 1,578 $ (275)* $(2,083)
Return on Sales (Loss) . . . 5.1% 5.2% 4.6% (.08)% (6.0)%
Shareholders' Equity . . . . $18,863 $16,796 $14,439 $12,800 $13,628
Return on Beginning
Shareholders' Equity (Loss) 13.3% 12.3% 12.3% (2.0)% (13.1)%
Total Assets . . . . . . . . $36,679 $23,779 $22,169 $20,574 $26,639
Long-Term Debt . . . . . . . $10,458 $ 2,840 $ 3,200 $ 3,500 $ 6,225
Working Capital . . . . . . . $15,780 $14,286 $12,106 $10,704 $12,254
Per Common Share:
Earnings (Loss) . . . . . . $ 0.35 $ 0.28 $ 0.25 $ (0.04)* $ (0.33)
Dividends Declared . . . . $ 0.08 $ None $ None $ None $ None
Book Value . . . . . . . . $ 2.92 $ 2.62 $ 2.25 $ 2.04 $ 2.17
<FN>
* A non-recurring charge related to a management restructuring reduced net
income by $969,000 or $0.15 per share.
</TABLE>
Item 7. Management's Discussion and Analysis of Financial Condition and
Results of Operations.
Results of Operations
On August 1, 1995, the Company acquired the Envirco Corporation in
Albuquerque, New Mexico ("Envirco") and the financial statements include the
activity for Envirco during the five months of August through December, 1995.
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Net sales for the year 1995 were $43,695,000, a significant improvement over
the prior year's $34,077,000 and the $34,568,000 reported in 1993. The
substantial increase in the current year was primarily due to Envirco. North
American base business sales increased 6% in 1995 after remaining stable in
1994 as compared to 1993. Sales by our consolidated European operations
declined 4% in 1995 from 1994 following an 8% decrease in 1994 from 1993
mainly due to the decline in business posted by our German subsidiary,
subsequently closed at the end of 1994.
In terms of product mix, Engineered Products sales continue to reflect
management's emphasis on growing the Company's share of this market. Due
primarily to the acquisition of Envirco, Engineered Products revenues climbed
by 54% in 1995 over 1994 after a slight increase in 1994 from 1993. Consumer
Products showed signs of improvement during 1995 due to the introduction of a
new appliance product and returned to 1993 levels. Going forward, management
expects the Engineered Products component of the business to continue to grow
faster than Consumer Products which faces mounting pressure from larger,
foreign based manufacturers, although the Company continues to invest
resources to protect and cultivate this important segment.
Consolidated gross profit as a percentage of sales was 37.1% in 1995 which
compares to 37.8% and 37.0% in 1994 and 1993, respectively. During 1995, the
prices for raw materials such as aluminum, steel, plastics and packaging
increased thereby placing pressures on margins. Partially offsetting these
increases were the Company's Value Analysis and profit improvement programs as
well as advances and changes to our manufacturing processes.
Operating expenses as a percentage of sales were 27.9% in 1995 in comparison
to 29.4% and 29.8% in 1994 and 1993, respectively. This reduction is
attributable to the synergies developed by the acquisition of Envirco,
controls on spending and the aforementioned profit improvement programs
implemented by the Company. The Company continues to invest sales, marketing,
and research and development resources in those areas within the organization
having strategic significance. 1994 operating expenses included a onetime
charge of $125,000 for the closure of the German subsidiary and the
consolidation of European operations.
Interest expense during 1995 was $434,000 as compared to $171,000 in 1994 and
$156,000 in 1993. This increase is due to the borrowing of $6,800,000 for the
Envirco acquisition.
Income taxes were $1,335,000, $1,012,000, and $838,000 in 1995, 1994 and 1993,
respectively. The majority of taxable income during these periods was earned
in the United Sates and was subject to taxation. In 1995 the Company also
redeemed 1.55 million British Pounds Sterling of share capital from the Trion
Limited subsidiary in the United Kingdom causing income for the current year
to be taxable. Going forward, Trion Limited continues to be eligible for
favorable tax treatment due to losses in prior years. These operating losses
may be carried forward indefinitely.
Net income for the year ended 1995 increased by $455,000, or 26% over 1994.
The $2,234,000 of reportable net income in 1995 compares to $1,779,000 in 1994
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and $1,578,000 in 1993. Earnings per share continued to rise, with 1995
resulting in $0.35 per share as compared to $0.28 per share in 1994 and $0.25
per share in 1993. The 1994 figure included the onetime charge for the
consolidation of European operations, reducing earnings by $0.03 per share.
The overall positive trend is a direct result of the Company's focus on
growth, internally and through acquisitions, as well as continuing efforts to
control production costs and operating expenses.
Liquidity and Sources of Capital
Cash flow from operations was sufficient to fund working capital requirements
and core business capital expenditures during the most recent period. The
cash balance on hand decreased by 88% in 1995 to $497,000 from $4,149,000 in
1994 due to the purchase of the Envirco operation. In addition to the
Company's own funds, supplemental bank borrowings of $6,800,000 were required
to settle the Envirco acquisition. Working capital increased to $15,780,000
in 1995 compared to $14,286,000 in 1994, representing a 10% improvement. The
ratio of current assets to current liabilities in 1995 was 3.3 to 1 compared
to 5.0 to 1 a year ago.
Currently, the Company has an unsecured line of credit in the amount of
$18,000,000 with Wachovia Bank of North Carolina, N.A. which is deemed
sufficient to fund future operating requirements. Anticipated acquisition
financing requirements may require the Company to seek additional sources of
credit. These funds would be used primarily for financing activities
associated with future growth opportunities through additional acquisitions.
The Company has no commitments with respect to any additional acquisitions at
this time. Additionally, in 1995 the Company refinanced the $3,200,000
remaining on the 1984 tax exempt, variable rate industrial revenue bonds
(requiring principal payments to be made annually through 2004) with tax
exempt, adjustable mode industrial development revenue refunding bonds
(requiring no principal payments until the year 2011).
Impact of Recently Issued Accounting Standards
In March 1995, the FASB issued Statement No. 121, Accounting for the
Impairment of Long-Lived Assets and for Long-Lived Assets to Be Disposed Of,
which requires impairment losses to be recorded on long-lived assets used in
operations when indicators of impairment are present and the undiscounted cash
flows estimated to be generated by those assets are less than the assets'
carrying amount. Statement 121 also addresses the accounting for long-lived
assets that are expected to be disposed of. The Company will adopt Statement
121 in the first quarter of 1996 and, based on current circumstances, does not
believe the effect of adoption will be material.
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Item 8. Financial Statements and Supplementary Data.
The consolidated financial statements and the report of independent auditors
are set forth below. Information required by Item 302, "Supplementary Data,"
is set forth in Note J of the Notes to Consolidated Financial Statements.
<TABLE>
CONSOLIDATED STATEMENTS OF INCOME AND RETAINED EARNINGS
(in thousands, except per share amounts)
TRION, INC. AND SUBSIDIARIES
<CAPTION>
Year Ended December 31
1995 1994 1993
<S> <C> <C> <C>
Net sales . . . . . . . . . . . . . . . . . $43,695 $34,077 $34,568
Other income . . . . . . . . . . . . . . . . 113 105 69
43,808 34,182 34,637
Cost and expenses:
Cost of products sold . . . . . . . . . 27,481 21,211 21,761
Selling, administration
and engineering expenses . . . . . . . 12,181 10,009 10,304
Interest . . . . . . . . . . . . . . . . 434 171 156
Amortization . . . . . . . . . . . . . . 143 - -
40,239 31,391 32,221
Income before income taxes . . . . . . . . . 3,569 2,791 2,416
Income tax expense (benefit):
Current . . . . . . . . . . . . . . . . 1,249 951 855
Deferred . . . . . . . . . . . . . . . . 86 61 (17)
1,335 1,012 838
Net income for the year . . . . . . . . . . 2,234 1,779 1,578
Retained earnings at beginning of year . . . 12,202 10,423 8,845
Dividends declared: ($0.08 per share). . . . (514) - -
Retained earnings at end of year . . . . . . $13,922 $12,202 $10,423
Net income per share of common stock . . . . $ 0.35 $ 0.28 $ 0.25
See notes to consolidated financial statements
</TABLE>
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<TABLE>
CONSOLIDATED BALANCE SHEETS
(in thousands)
TRION, INC. AND SUBSIDIARIES
<CAPTION>
December 31
ASSETS 1995 1994
<S> <C> <C>
CURRENT ASSETS
Cash and cash equivalents . . . . . . . . . . . . . $ 497 $ 4,149
Trade accounts receivable less allowance for
doubtful accounts: ($339,000 in 1995 and
$175,000 in 1994). . . . . . . . . . . . . . . . . 11,926 6,914
Inventories . . . . . . . . . . . . . . . . . . . . 8,755 5,590
Prepaid expenses and other current assets . . . . . 894 919
Deferred current income taxes . . . . . . . . . . . 449 318
Total current assets . . . . . . . . . . . . . 22,521 17,890
PROPERTY, PLANT AND EQUIPMENT
Land . . . . . . . . . . . . . . . . . . . . . . . 78 78
Buildings . . . . . . . . . . . . . . . . . . . . . 5,058 5,058
Equipment . . . . . . . . . . . . . . . . . . . . . 11,970 10,456
Allowance for depreciation . . . . . . . . . . . . (10,514) (9,801)
6,592 5,791
OTHER ASSETS
Goodwill less accumulated amortization:
($143,000 in 1995). . . . . . . . . . . . . . . . 6,736 -
Other non-current assets . . . . . . . . . . . . . 830 98
7,566 98
$36,679 $23,779
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES
Accounts payable . . . . . . . . . . . . . . . . . $ 4,409 $ 1,222
Accrued expenses:
Compensation and fringes . . . . . . . . . . . . . 545 333
Selling and promotions . . . . . . . . . . . . . . 457 788
Other . . . . . . . . . . . . . . . . . . . . . . 1,056 901
Income taxes . . . . . . . . . . . . . . . . . . . 274 -
Current portion of long-term debt . . . . . . . . . - 360
Total current liabilities . . . . . . . . . . . 6,741 3,604
LONG-TERM DEBT . . . . . . . . . . . . . . . . . . . 10,458 2,840
OTHER NON-CURRENT LIABILITIES . . . . . . . . . . . . 281 307
DEFERRED INCOME TAXES . . . . . . . . . . . . . . . . 336 232
17,816 6,983
SHAREHOLDERS' EQUITY
Common stock, par value $.50 a share:
Authorized 20,000,000 shares
Issued and outstanding: (6,451,483 in
1995 and 6,399,183 in 1994) . . . . . . . . . . . 3,226 3,200
Additional paid-in capital. . . . . . . . . . . . . 1,535 1,327
Retained earnings . . . . . . . . . . . . . . . . . 13,922 12,202
Foreign currency translation adjustment - unrealized 180 67
18,863 16,796
$36,679 $23,779
See notes to consolidated financial statements
</TABLE>
-13-
<PAGE>
<TABLE>
CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)
TRION, INC. AND SUBSIDIARIES
<CAPTION>
Year Ended December 31
1995 1994 1993
<S> <C> <C> <C>
OPERATING ACTIVITIES
Net income . . . . . . . . . . . . . . . . . . . $ 2,234 $ 1,779 $ 1,578
Adjustments to reconcile net income
to net cash provided by operating activities:
Depreciation and amortization . . . . . . . . 1,073 894 1,032
Deferred income taxes . . . . . . . . . . . . 86 61 (17)
Changes in operating assets and liabilities:
Accounts receivable . . . . . . . . . . . . (2,509) (543) (1,052)
Inventory and prepaid expenses . . . . . . (1,605) 925 455
Accounts payable and accrued expenses . . . 1,876 (654) 385
Loss (gain) on disposals of equipment . . . . - - 3
Foreign currency transaction loss (gain). . . (26) 89 12
Net cash provided by operating activities . 1,129 2,551 2,396
INVESTING ACTIVITIES
Purchase of Envirco Corporation . . . . . . . . . (8,502) - -
Retirement of Envirco Corporation debt . . . . . (1,958) - -
Purchases of property, plant and equipment . . . (1,277) (592) (684)
Proceeds from disposals of equipment. . . . . . . 66 4 6
Net cash used by investing activities . . . (11,671) (588) (678)
FINANCING ACTIVITIES
Net proceeds from master credit facility. . . . . 6,800 - -
Principal payments on long-term debt . . . . . . - (300) (300)
Exercise of stock options . . . . . . . . . . . . 234 224 242
Cash dividends paid . . . . . . . . . . . . . . . (386) - -
Net cash provided (used) by
financing activities . . . . . . . . . . 6,648 (76) (58)
Effect of foreign exchange rate changes on cash . . 242 123 (51)
Increase (decrease) in cash . . . . . . . . . . . . (3,652) 2,010 1,609
Cash at beginning of year . . . . . . . . . . . . . 4,149 2,139 530
Cash at end of year . . . . . . . . . . . . . . . . $ 497 $ 4,149 $ 2,139
See notes to consolidated financial statements
</TABLE>
-14-
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE A - ACCOUNTING POLICIES
Principles of Consolidation: The financial statements include the accounts of
the Company's subsidiaries, all of which are wholly owned. All significant
intercompany transactions have been eliminated.
Use of Estimates: The preparation of the financial statements in conformity
with generally accepted accounting principles requires management to make
estimates and assumptions that affect the amounts reported in the financial
statements and accompanying notes. Actual results could differ from those
estimates.
Translation of Foreign Currencies: Assets and liabilities of foreign
subsidiaries are translated using year-end exchange rates and revenues and
expenses are translated using exchange rates prevailing during the year.
Unrealized currency translation adjustments are recorded as a component of
shareholders' equity and are not included in income until realized.
Operations: The Company is principally engaged in the design, manufacture and
sale of equipment to improve the quality of indoor air in the consumer,
residential, commercial and industrial markets, and equipment to
electrostatically distribute micro-thin films of lubricants, corrosion
inhibitors and other protective coatings to metal strips on high speed process
lines.
Inventories: Inventories are stated at the lower of cost or market. Cost is
determined by the last-in, first-out method for domestic raw materials and by
the first-in, first-out method for all other inventories. Obsolete or slow
moving inventory is written off or written down when it is determined that the
carrying value of the particular item exceeds realizable value.
Property, Plant and Equipment: Property, plant and equipment are carried at
cost. Depreciation is computed by the straight-line method.
Intangible Assets: The carrying value of intangible assets are reviewed if
the facts and circumstances indicate impairment of their carrying value. Any
impairment in the carrying value of such intangibles is recorded when
identified.
Pension and Savings Plans: The Company has one noncontributory defined
benefit pension plan and two defined contribution profit sharing plans
covering eligible employees. (See Note I)
Net Sales: The Company recognizes a sale when title passes to the customer -
usually the date of shipment. New equipment returned by customers is charged
to sales when received by the Company.
-15-
<PAGE>
Research and Development Expenses: Included in selling, administration and
engineering expenses is $771,000, $531,000 and $515,000 for research and
development in the years 1995, 1994 and 1993, respectively. It is a policy of
the Company to expense research and development costs in the year incurred.
Warranty Expenses: The Company has a warranty reserve which has been
established at a percentage of cost of sales. This percentage, which is
subject to regular review, is based on the history of warranty expenses
incurred.
Net Income Per Share: Net income per share of common stock is computed by
dividing net income by the weighted average number of shares of common stock
outstanding during the year (6,429,396 in 1995, 6,381,229 in 1994 and
6,313,799 in 1993). Outstanding stock options are not considered in computing
earnings per share as the effect would not be material.
Statement of Cash Flows: For purposes of this statement, the Company
considers all highly liquid debt instruments purchased with a maturity of
three months or less to be cash equivalents.
Income Taxes: Income taxes are accounted for under the provisions of FASB
Statement No. 109 (SFAS 109). (See Note F).
Stock Based Compensation: The Company grants stock options for a fixed number
of shares to employees with an exercise price equal to the fair value of the
shares at the date of grant. The Company accounts for stock option grants in
accordance with APB Opinion No. 25, Accounting for Stock Issued to Employees,
and, accordingly, recognizes no compensation expense for the stock option
grants.
Reclassification: Certain amounts in 1994 and 1993 have been reclassified to
conform to present classifications. These reclassifications have no effect on
previously reported shareholders' equity or financial results.
Impact of Recently Issued Accounting Standards: In March 1995, the FASB
issued Statement No. 121, Accounting for the Impairment of Long-Lived Assets
and for Long-Lived Assets to Be Disposed Of, which requires impairment losses
to be recorded on long-lived assets used in operations when indicators of
impairment are present and the undiscounted cash flows estimated to be
generated by those assets are less than the assets' carrying amount.
Statement 121 also addresses the accounting for long-lived assets that are
expected to be disposed of. The Company will adopt Statement 121 in the first
quarter of 1996 and, based on current circumstances, does not believe the
effect of adoption will be material.
NOTE B - ACQUISITION
On August 1, 1995 the Company acquired all of the outstanding common stock of
Envirco Corporation, a manufacturer and distributor of ultra-clean air systems
and components located in Albuquerque, New Mexico for cash consideration of
approximately $7,986,000. The Company incurred costs of approximately
$516,000; consisting principally of a finders fee, accounting and legal
-16-
<PAGE>
expenses. The acquisition was financed through a combination of cash on hand
and borrowings of $6,800,000. The details of the credit facility are
discussed in Note D.
In a related transaction, the Company and/or Envirco Corporation entered into
employment agreements and/or non-compete agreements with five key employees of
the Envirco Corporation. These agreements have terms which vary from two to
five years, maintain salary levels previously in effect, and, in certain
circumstances based upon company performance, provide incentive payments and
options to purchase the Company's common stock at $6.00 per share.
The Envirco acquisition was accounted for using the purchase method, with the
assets and liabilities of the business recorded at their estimated fair value
at the acquisition date. The excess of total acquisition cost over the fair
value of the net assets acquired was classified as goodwill and is being
amortized on a straight line basis over 20 years. The results of operations
of Envirco are included in these consolidated statements of income as of the
date of the acquisition.
If Envirco had been acquired at the beginning of 1995 and 1994, the unaudited
pro forma summary of consolidated results of operations would have been
reported as: net sales of $51,438,000 and $45,620,000; net income of
$2,331,000 and $1,879,000; and net income per share of $0.36 and $0.29,
respectively. These pro forma results do not purport to be indicative of the
results that would have actually been attained, or that will be attained in
the future.
NOTE C - INVENTORIES
(in thousands)
1995 1994
Raw materials. . . . . . . . . . . . . . . . . $4,757 $2,147
Work in process and finished products. . . . . 3,998 3,443
$8,755 $5,590
If the first-in, first-out method of accounting for cost had been used for
domestic raw materials, inventories would have been approximately $355,000 and
$251,000 more at December 31, 1995 and 1994, respectively.
NOTE D - LINE OF CREDIT
The Company has a master credit facility in the United States which allows the
Company to borrow up to $18,000,000 at the London Interbank Offering Rate of
interest plus 1.3%. This master credit facility expires in September, 1998.
This facility replaced the previous $3,000,000 line of credit which was at the
prime rate of interest less 0.25%.
-17-
<PAGE>
NOTE E - LONG-TERM DEBT
<TABLE>
<CAPTION>
Long-term debt is comprised of the following:
(in thousands)
1995 1994
<S> <C> <C>
Term Loan . . . . . . . . . . . . . . . . $ 6,800 $ -
Escrow Note, Envirco Acquisition . . . . 458 -
Industrial Development Revenue
Refunding Bonds, 1995 . . . . . . . . . 3,200 -
Industrial Revenue Bonds, 1984 . . . . . - 2,840
$10,458 $ 2,840
</TABLE>
In September 1995, the Company obtained a master credit facility for
$18,000,000. The structure of the master credit facility includes an
$8,000,000 thirty six (36) month revolving line of credit and a $10,000,000
sixty (60) month declining balance term loan.
In addition, as part of the purchase and sale agreement associated with the
acquisition of Envirco Corporation, the Company obtained an escrow note for
$458,000; due in October of 1997 and bearing interest at the fixed rate of 6%.
In November 1995, the Company refunded the entire $3,200,000 balance of the
1984 industrial revenue bonds; bearing interest based upon a percentage of
prime, 68.5% or a 5.99% interest rate at the time, and requiring principal
payments to be made annually through 2004. The entire amount was refinanced
with industrial development revenue refunding bonds, due in November of 2011;
bearing interest, inclusive of fees for the letter of credit, remarketing, and
other financing charges, of approximately 5.5% and requiring no principal
payments until maturity. The bonds are secured by the facility, including
real property and equipment.
NOTE F - INCOME TAXES
The liability method is used in accounting for income taxes as prescribed by
SFAS 109. Under this method, deferred tax assets and liabilities are
determined based on differences between financial reporting and tax bases of
assets and liabilities and are measured using the enacted tax rates and laws
that will be in effect when the differences are expected to reverse.
Income before income taxes consisted of the following:
(in thousands)
1995 1994 1993
Domestic . . . . . . . $3,475 $2,705 $2,028
Foreign . . . . . . . . 94 86 388
$3,569 $2,791 $2,416
-18-
<PAGE>
<TABLE>
<CAPTION>
Federal, foreign and state income tax expenses (benefit) consisted of the
following:
(in thousands)
1995 1994 1993
Current Deferred Current Deferred Current Deferred
<S> <C> <C> <C> <C> <C> <C>
Federal . . . $ 1,116 $ 76 $ 814 $ 53 $ 783 $ (19)
Foreign . . . 20 - 10 - 18 -
State . . . . 113 10 127 8 54 2
$ 1,249 $ 86 $ 951 $ 61 $ 855 $ (17)
</TABLE>
Income tax payments were $994,000 in 1995, $1,211,000 in 1994 and
$586,000 in 1993.
<TABLE>
<CAPTION>
(in thousands)
1995 1994
<S> <C> <C>
Deferred tax liabilities:
Tax over book depreciation and amortization . $ 436 $ 397
Prepaid pension expenses . . . . . . . . . . 97 129
Total liabilities . . . . . . . . . . . . . 533 526
Deferred tax assets:
Foreign operating loss carryforward . . . . . 1,141 1,125
Restructuring reserve . . . . . . . . . . . . 113 177
Product warranty reserve . . . . . . . . . . 70 92
Inventory reserve (including UCR) . . . . . . 164 203
Other reserves . . . . . . . . . . . . . . . 299 140
Total assets . . . . . . . . . . . . . . . 1,787 1,737
Valuation allowance . . . . . . . . . . . . . (1,141) (1,125)
Net deferred tax assets . . . . . . . . . . . 646 612
Net asset . . . . . . . . . . . . . . . . . . $ 113 $ 86
</TABLE>
At December 31, 1995, the Company had operating loss carryforwards of
$3,119,000 in England that are available indefinitely to offset future taxable
income of that subsidiary. For financial reporting purposes, a valuation
allowance has been recognized to offset the deferred tax assets related to the
carryforward.
<TABLE>
<CAPTION>
A reconciliation of income tax expense (benefit) to the statutory rate
follows:
(in thousands)
1995 1994 1993
<S> <C> <C> <C>
Statutory rate . . . . . . . . . . . . . . . . $1,214 $ 949 $ 821
Tax difference of foreign subsidiaries
primarily related to effect of tax
benefits on operating losses . . . . . . . . 31 (19) (114)
Non-qualified stock options . . . . . . . . . (47) 35 30
Other . . . . . . . . . . . . . . . . . . . . 137 47 101
Total income tax expense . . . . . . . . . . . $1,335 $1,012 $ 838
</TABLE>
-19-
<PAGE>
NOTE G - STOCK OPTIONS
At December 31, 1995, the Company had two incentive stock option plans in
effect - the "1985 Plan" and the "1995 Plan". Under terms of both plans
options to purchase shares of common stock have been granted to officers and
other key executives at prices not less than the fair market value of the
stock on the date of grant. Options may be granted for a term of up to ten
years at the discretion of the Board of Directors. At December 31, 1995,
there were no shares available for future grants under the 1985 Plan and
277,000 shares available under the 1995 Plan.
<TABLE>
A summary of transactions relating to options during 1995 and 1994 follows:
<CAPTION>
Shares Price Range Value
<S> <C> <C> <C>
Balance Outstanding December 31, 1993 . . 176,000 $714,375
Granted . . . . . . . . . . . . . . . . . 67,249 $5.00 - $6.00 373,276
Exercised . . . . . . . . . . . . . . . . (23,000) $2.00 - $5.00 (84,250)
Cancelled . . . . . . . . . . . . . . . . (10,595) $3.38 - $6.00 (54,722)
Expired . . . . . . . . . . . . . . . . . (27,000) $5.00 - $5.75 (178,250)
Balance December 31, 1994 . . . . . . . . 182,654 770,429
Granted . . . . . . . . . . . . . . . . . 39,204 $4.81 - $6.00 199,544
Exercised . . . . . . . . . . . . . . . . (3,000) $3.75 - $3.88 (11,500)
Cancelled . . . . . . . . . . . . . . . . (2,000) $5.50 (11,000)
Balance December 31, 1995 . . . . . . . . 216,858 $947,473
Exercisable at December 31, 1994 . . . . 96,335 $2.50 - $4.50 $342,172
Exercisable at December 31, 1995 . . . . 138,214 $2.50 - $5.63 $532,288
</TABLE>
In addition, a non-qualified stock option for 100,000 common shares was
granted in 1991 at $2.00 per share under terms of an employment agreement.
The market value on the date of grant was $3.13 and the difference of $1.13
per share was charged to expense during 1991 and 1992. In 1993, 66,666 of
these shares were exercised with the remaining 33,334 shares exercised in
1994. During 1993, non-qualified stock options were granted for 100,000
shares at $2.50 per share, 75,000 shares at $3.00 per share and 70,000 at
$3.13 per share. The market value on the date of grant of 175,000 shares was
$3.75 and the market value on the date of grant of 70,000 shares was $4.38.
The options for 175,000 shares were granted for a period of five years.
Vesting of 100,000 of these shares is 25% per year commencing in May 1993, and
75,000 of these shares vest at 33 1/3% per year commencing May 1994. In 1995,
43,300 of the $2.50 per share options were exercised. The options for 70,000
shares are for a period of ten years and were vested immediately. The
difference between grant prices and market prices at the date of grant are
charged to expense over the respective vesting periods.
All incentive stock options and the 1991 non-qualified stock option were
granted for a period of five years and may be exercised for one-third of the
shares in each year following the date of grant.
-20-
<PAGE>
<TABLE>
<CAPTION>
NOTE H - STOCK TRANSACTIONS
Common Stock Additional
Shares Amount Paid-In Capital
<S> <C> <C> <C>
Balance December 31, 1993 . . . . . 6,342,849 $3,171,424 $1,132,052
Exercise of stock options . . . . . 56,334 28,167 195,252
Balance December 31, 1994 . . . . . 6,399,183 3,199,591 1,327,304
Board of Directors retainer fee . . 6,000 3,000 33,000
Exercise of stock options . . . . . 46,300 23,150 174,925
Balance December 31, 1995 . . . . . 6,451,483 $3,225,741 $1,535,229
</TABLE>
NOTE I - PENSION AND SAVINGS PLANS
The Company maintains a noncontributory defined benefit retirement plan for
substantially all Sanford employees. Benefits are based on earnings and years
of service. The Company's funding policy is to contribute annually the amount
required by the Employee Retirement Income Security Act. Assets of the Plan
are managed by a trustee and invested in marketable securities, bonds and
money market instruments. Based on actuarial studies as of January 1 of each
year, the contribution required was $191,000 for 1995, $0 for 1994 and $0 for
1993.
<TABLE>
<CAPTION>
The following table sets forth the plan status at December 31:
(in thousands)
1995 1994 1993
<S> <C> <C> <C>
Actuarial present value of benefit
obligations:
Accumulated benefit obligation,
including vested benefits of
$5,054,000 in 1995, $4,641,000 in
1994 and $4,017,000 in 1993 . . . . . $(4,891) $(4,670) $(4,204)
Projected benefit obligation for
service rendered to date . . . . . . $(5,476) $(4,961) $(4,340)
Plan assets at fair market value . . . . 6,263 5,463 5,749
Plan assets in excess of projected
benefit obligation . . . . . . . . . 787 502 1,409
Unrecognized prior service cost . . . . (21) (22) (24)
Unrecognized net (gain) loss . . . . . . (380) 120 (655)
Unrecognized net asset . . . . . . . . . (223) (248) (273)
Prepaid pension expense . . . . . . . $ 163 $ 352 $ 457
Net pension cost included the following components:
Service cost - benefits earned
during the period . . . . . . . . . . $ 304 $ 276 $ 219
Interest cost on projected benefit
obligation . . . . . . . . . . . . . 343 311 267
Actual return on plan assets . . . . . . (1,016) 153 (562)
Net amortization and deferral of
unrecognized net gain (loss) . . . . 585 (607) 105
Amortization of unrecognized net asset . (25) (25) (25)
Amortization of prior service costs . . (2) (2) (2)
Net periodic pension cost . . . . . . $ 189 $ 106 $ 2
</TABLE>
-21-
<PAGE>
A weighted average discount rate of 7.0% in 1995, 1994 and in 1993 and a rate
of increase in future compensation levels of 5.5% in 1995, 1994 and 1993, were
used in determining the actuarial present value of the projected benefit
obligation. The expected long-term rate of return on plan assets was 8.0% for
1995, 1994 and 1993.
The Company also maintains defined contribution profit sharing plans as
described in Section 401(k) of the Internal Revenue Code of 1986.
Participants may elect to defer from 2% to 18% of their total cash
compensation. The maximum deferral allowed for income tax purposes was $9,240
in 1995 and 1994. There are also other limitations placed upon highly
compensated employees, as defined in the plans.
The Company may make discretionary matching contributions. During 1995 and
1994, the Company contributed $79,000 and $74,000, respectively, representing
25% of the employee's deferral up to a maximum of 1.25% of total cash
compensation.
Amounts deferred, including Company matching contributions, are invested by a
trustee in a variety of investment options as directed by the participant.
NOTE J - SUMMARY OF QUARTERLY FINANCIAL DATA (UNAUDITED)
<TABLE>
Summary quarterly financial data for the years ended December 31, 1995 and
1994 are set forth below:
<CAPTION>
(in thousands, except per share data)
Cost of Net Income
Quarter Ended Net Sales Products Sold Net Income Per Share
1995:
<S> <C> <C> <C> <C>
March 31 . . . . . $ 8,504 $ 5,485 $ 430 $0.07
June 30. . . . . . 8,799 5,404 589 0.09
September 30 . . . 11,080 6,840 502 0.08
December 31. . . . 15,312 9,752 713 0.11
Year 1995 . . . $43,695 $27,481 $2,234 $0.35
1994:
March 31 . . . . . $ 7,918 $ 5,133 $ 371 $0.06
June 30. . . . . . 7,637 4,560 492 0.08
September 30 . . . 9,266 5,974 457 0.07
December 31. . . . 9,256 5,544 459 0.07
Year 1994 . . . $34,077 $21,211 $1,779 $0.28
</TABLE>
NOTE K - FINANCIAL INSTRUMENTS
Financial instruments that potentially subject the Company to significant
concentrations of credit risk consist principally of cash investments and
trade accounts receivable. The Company maintains cash and cash equivalents
with various financial institutions. Concentrations of credit risk with
respect to trade accounts receivable are limited due to the large number of
entities comprising the Company's customer base. However, as of December 31,
1995, the Company's receivable from one customer was $1,927,000. The carrying
amount reported in the balance sheet for cash and cash equivalents, accounts
receivable, accounts payable and long-term debt approximate their fair values.
-22-
<PAGE>
NOTE L - INDUSTRY SEGMENT INFORMATION
The Company's operations are classified in three general industry segments:
Engineered Products; Consumer Products and European Operations.
Engineered Products include air cleaning products manufactured for commercial,
industrial and marine applications, air cleaning equipment manufactured for
permanent installation in residential air handling systems, and equipment
designed to electrostatically distribute micro-thin films of lubricants,
corrosion inhibitors and other protective coatings to metal strips on high
speed process lines.
Consumer Products include portable room-size units, small appliance models and
equipment and components sold to other suppliers of air cleaners.
Trion Limited (and Trion GmbH in 1994) functions in Europe as a sales and
distribution operation. The U.S. manufacturing operation provides products
for resale. Trion GmbH ceased operations at the end of 1994.
Net sales by segment include only sales to unaffiliated customers as reported
in the Company's consolidated income statement. Segment income from
operations is net sales less cost of products sold and certain operating
expenses. In computing income from operations, other income, general
corporate expenses, domestic interest expense and taxes on income have been
excluded.
The Company's manufacturing facilities serve all segments; therefore, specific
identification of all property, plant and equipment and inventory is not
practicable. These assets and related depreciation were allocated to segments
based on estimates. General corporate assets were principally cash and cash
equivalents, office equipment and engineering equipment.
Net sales of the Company in 1995 include approximately $1,466,000 of direct
and indirect sales to the United States Government ($1,277,000 in 1994 and
$1,043,000 in 1993). These sales are included in the Engineered Products
group. Sales to a significant customer in the Consumer Products group were
$6,288,000 in 1995; $5,967,000 in 1994 and $7,702,000 in 1993.
<TABLE>
<CAPTION>
Export sales from the United States to unaffiliated customers were as follows:
(in thousands)
1995 1994 1993
<S> <C> <C> <C>
Pacific Rim . . . . . . . . $ 3,897 $ 2,577 $ 2,328
Europe. . . . . . . . . . . 102 28 504
Other . . . . . . . . . . . 432 295 144
$ 4,431 $ 2,900 $ 2,976
</TABLE>
-23-
<PAGE>
NOTE L - INDUSTRY SEGMENT INFORMATION - (continued)
<TABLE>
<CAPTION>
Additional information on industry segments is set forth below:
(in thousands)
1995 1994 1993
<S> <C> <C> <C>
Net sales to unaffiliated customers:
North American Operations:
Engineered Products . . . . . . . $26,298 $17,110 $16,296
Consumer Products . . . . . . . . 11,939 11,305 12,117
European Operations . . . . . . . . 5,458 5,662 6,155
Total. . . . . . . . . . . . . $43,695 $34,077 $34,568
Income (loss) from operations:
North American Operations:
Engineered Products . . . . . . . $ 4,373 $ 3,964 $ 3,304
Consumer Products . . . . . . . . 1,463 1,364 1,237
European Operations . . . . . . . . (59) (537) (120)
Total. . . . . . . . . . . . . 5,777 4,791 4,421
General Corporate:
Other income . . . . . . . . . . 113 105 69
Interest . . . . . . . . . . . . (434) (171) (153)
Other expenses . . . . . . . . . (1,887) (1,934) (1,921)
Total. . . . . . . . . . . . . (2,208) (2,000) (2,005)
Income (loss) before income taxes . . $ 3,569 $ 2,791 $ 2,416
Identifiable assets:
North American Operations:
Engineered Products . . . . . . . $18,512 $ 6,902 $ 6,404
Consumer Products . . . . . . . . 9,015 5,517 5,931
European Operations . . . . . . . . 5,918 5,450 5,989
General Corporate . . . . . . . . . 3,234 5,910 3,845
Total. . . . . . . . . . . . . $36,679 $23,779 $22,169
Depreciation and amortization:
North American Operations:
Engineered Products . . . . . . . $ 449 $ 292 $ 330
Consumer Products . . . . . . . . 273 268 351
European Operations . . . . . . . . 227 222 285
General Corporate . . . . . . . . . 124 112 66
Total. . . . . . . . . . . . . $ 1,073 $ 894 $ 1,032
</TABLE>
-24-
<PAGE>
REPORT OF INDEPENDENT AUDITORS
Shareholders and Board of Directors
Trion, Inc.
Sanford, North Carolina
We have audited the accompanying consolidated balance sheets of Trion, Inc.
and subsidiaries as of December 31, 1995 and 1994, and the related
consolidated statements of income and retained earnings and cash flows for
each of the three years in the period ended December 31, 1995. These
financial statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the consolidated financial position of Trion, Inc. and
subsidiaries at December 31, 1995 and 1994, and the consolidated results of
their operations and cash flows for each of the three years in the period
ended December 31, 1995, in conformity with generally accepted accounting
principles.
Ernst & Young LLP
Raleigh, North Carolina
January 31, 1996
-25-
<PAGE>
Item 9. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure.
Not applicable.
PART III
Item 10. Directors and Executive Officers of the Registrant.
Election of Directors on pages 4 through 6 and Security Ownership on page 7
of the annual Proxy Statement dated March 13, 1996 are incorporated herein by
reference.
See Part I, pages Item 4.(a) of this report for the required information on
executive officers.
Section 16 of the Exchange Act requires the Company's directors and executive
officers to file reports with the Securities and Exchange Commission
indicating their holdings of and transactions in the Company's equity
securities and to provide copies of such reports to the Company. To the
Company's knowledge, except for James E. Heins, who inadvertently filed one
Form 4 one day late for one purchase transaction, insiders of the Company
complied with all filing requirements.
Item 11. Executive Compensation.
Executive Compensation on pages 8 through 13 (excluding the information under
the subheading "Compensation Committee Report on Executive Compensation" on
pages 12 and 13), Service Agreement on page 15 and information concerning
Director's compensation on page 6 of the annual Proxy Statement dated March
13, 1996 is incorporated herein by reference.
Item 12. Security Ownership of Certain Beneficial Owners and Management.
Security Ownership on page 7 and information concerning Director's ownership
on pages 4 through 6 of the annual Proxy Statement dated March 13, 1996 are
incorporated herein by reference.
Item 13. Certain Relationships and Related Transactions.
Service Agreement on page 15 of the annual Proxy Statement dated March 13,
1996 is incorporated herein by reference.
-26-
<PAGE>
PART IV
Item 14. Exhibits, Financial Statement Schedules and Reports on Form 8-K.
Item 14. (a) (1) and (2)- The following consolidated financial statements of
Trion, Inc. and subsidiaries, included in the annual report of the Company to
its shareholders for the year ended December 31, 1995 are included in Item 8
beginning on page 12 hereof:
Consolidated Balance Sheets -- December 31, 1995 and 1994.
Consolidated Statements of Income and Retained Earnings -- years ended
December 31, 1995, 1994 and 1993.
Consolidated Statements of Cash Flows -- years ended December 31, 1995, 1994
and 1993.
Notes to Consolidated Financial Statements -- December 31, 1995.
Parent company financial statements are not included because restricted net
assets of subsidiaries after intercompany eliminations are less than 25% of
consolidated net assets.
Item 14. (a) (3) - See Index to Exhibits beginning on page 30 hereof.
Item 14. (b) - There were no reports on Form 8-K filed by the Registrant
during the last quarter of the period covered by this report.
Item 14. (d) - The following consolidated financial statement schedule of
Trion, Inc. and subsidiaries is included on page 29 hereof:
Schedule II - Valuation and Qualifying Accounts and Reserves
All other schedules for which provision is made in the applicable accounting
regulation of the Securities and Exchange Commission are not required under
the related instructions or are not applicable and therefore have been
omitted.
-27-
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the Registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
TRION, INC.
By: /s/ Steven L. Schneider 3/22/96
Steven L. Schneider, Date
President and Chief
Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below be the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
/s/ Steven L. Schneider 3/22/96 /s/ Seddon Goode, Jr. 3/22/96
Steven L. Schneider, Date Seddon Goode, Jr., Date
President, Chief Executive Director
Officer and Director
(Principal Executive Officer)
/s/ Calvin J. Monsma 3/22/96 /s/ James E. Heins 3/22/96
Calvin J. Monsma, Date James E. Heins, Date
Vice President and Director
Chief Financial Officer
(Principal Financial and
Accounting Officer)
/s/ Hugh E. Carr 3/22/96 /s/ Grant R. Meyers 3/22/96
Hugh E. Carr, Date Grant R. Meyers, Date
Director Director
/s/ Edwin V. Clarke, Jr. 3/22/96 /s/ Samuel J. Wornom III 3/22/96
Edwin V. Clarke, Jr., Date Samuel J. Wornom III, Date
Director Director
/s/ Joseph W. Deering 3/22/96
Joseph W. Deering, Date
Director
-28-
<PAGE>
<TABLE>
SCHEDULE II - VALUATION AND QUALIFYING ACCOUNTS AND RESERVES
TRION, INC. AND SUBSIDIARIES
<CAPTION>
Col. A Col. B Col. C Col. D Col. E Col. F
Additions
------------------------
Balance at Charged to Charged to Balance
Beginning Costs and Other at
of Period Expenses Accts. - Deductions End of
Describe -Describe Period
<S> <C> <C> <C> <C> <C>
Year ended December 31, 1995:
Deducted from asset accounts:
Allowance for doubtful accounts $ 175,000 $146,000 $119,000(3) $101,000(1) $ 339,000
Valuation allowance for deferred tax assets 1,125,000 - 16,000(4) - 1,141,000
$1,300,000 $146,000 $135,000 $101,000 $1,480,000
Year ended December 31, 1994:
Deducted from asset accounts:
Allowance for doubtful accounts $ 175,000 $ 94,000 $ - $ 94,000(1) $ 175,000
Valuation allowance for deferred tax assets 1,350,000 - - 225,000(2) 1,125,000
$1,525,000 $ 94,000 $ - $319,000 $1,300,000
Year ended December 31, 1993:
Deducted from asset accounts:
Allowance for doubtful accounts $ 175,000 $167,000 $ - $167,000(1) $ 175,000
Valuation allowance for deferred tax assets 1,464,000 - - 114,000(2) 1,350,000
$1,639,000 $167,000 $ - $281,000 $1,525,000
<FN>
(1) Uncollectible accounts written off, net of recoveries.
(2) Utilization of net operating loss carryforwards.
(3) Balance of Envirco Corporation as of August 1, 1995 acquisition.
(4) Book provision to tax return adjustment.
</TABLE>
-29-
<PAGE>
INDEX TO EXHIBITS
The following Exhibits to this report are filed herewith or, if marked with an
asterisk (*), are incorporated herein by reference:
Exhibit
Number Description of Exhibits
3.1 Articles of Incorporation (incorporated herein by reference to
Exhibit 3.1 to Form 10-K for the year ended December 31, 1985,
file number 0-3108). (*)
3.2 Bylaws (incorporated herein by reference to Exhibit 3.2 to Form 10-K
for the year ended December 31, 1994, file number 0-3108). (*)
4.1 $18,000,000 Credit Agreement dated September 8, 1995.
10.1 1996 Management Incentive Plan as adopted in December 1995. (**)
10.2 1985 Trion, Inc. Incentive Stock Option Plan as adopted and approved
by shareholders on April 16, 1985 (incorporated herein by reference
to Exhibit A to Proxy Statement dated April 16, 1985, file number
0-3108). (*) (**)
10.3 Form of option for the 1985 Trion, Inc. Incentive Stock Option Plan
(incorporated herein by reference to Exhibit 10.4 to Form 10-K for
the year ended December 31, 1986, file number 0-3108). (*) (**)
10.4 Trion Savings Plus Plan, effective January 1, 1987 as approved in
November 1986 (incorporated herein by reference to Exhibit 10.5 to
Form 10-K for the year ended December 31, 1986, file number 0-3108).
(*) (**)
10.5 Loan Agreement dated August 1, 1984 between The Lee County
Industrial Facilities and Pollution Control Financing Authority and
Trion, Inc. (incorporated herein by reference to Exhibit 10.1 to
Form 10-Q for the quarter ended September 30, 1984, file number
0-3108). (*)
10.6 Note dated September 11, 1984 from Trion, Inc. to The Lee County
Industrial Facilities and Pollution Control Financing Authority
(incorporated herein by reference to Exhibit 10.2 to Form 10-Q for
the quarter ended September 30, 1984, file number 0-3108). (*)
10.7 Guaranty and Purchase Agreement dated as of August 1, 1984 from
Trion, Inc. to Wachovia Bank and Trust Company, N.A. (incorporated
herein by reference to Exhibit 10.3 to Form 10-Q for the quarter
ended September 30, 1984, file number 0-3108). (*)
10.8 Stock Option Agreement between Edwin V. Clarke, Jr. and Trion, Inc.
dated September 17, 1993 (incorporated herein by reference to
Exhibit 10.1 to form 10-Q for the quarter ended September 30, 1993,
file number 0-3108) (*) (**)
-30-
<PAGE>
INDEX TO EXHIBITS
(continued)
10.9 Stock Option Agreement between Samuel J. Wornom III and Trion, Inc.
dated September 21, 1993 (incorporated herein by reference to
Exhibit 10.2 to form 10-Q for the quarter ended September 30, 1993,
file number 0-3108). (*) (**)
10.10 Stock Option Agreement between Steven L. Schneider and Trion, Inc.
dated March 31, 1993 (incorporated herein by reference to Exhibit
10.2 to form 10-Q for the quarter ended June 30, 1993, file number
0-3108). (*) (**)
10.11 Service Agreement dated October 30, 1992 between Trion, Inc. and
Hugh E. Carr, a director of Trion, Inc. (incorporated herein by
reference to Exhibit 10.8 to Form 10-K for the year ended December
31, 1992, file number 0-3108). (*) (**)
10.12 Employment Agreement between Steven L. Schneider and Trion, Inc.
dated March 31, 1993 (incorporated herein by reference to Exhibit
10.1 to Form 10-Q for the quarter ended June 30, 1993, file number
0-3108). (*) (**)
10.13 Trion, Inc. 1995 Stock Incentive Plan (incorporated herein by
reference to the Registrant's Registration Statement No.033-59095
on Form S-8 dated May 4, 1995). (*) (**)
10.14 Form of option for the Trion, Inc. 1995 Stock Incentive Plan. (**)
10.15 First Amendment to Stock Option Agreement between Steven L.
Schneider and Trion, Inc. dated July 28, 1995. (**)
10.16 Amended and Restated Employment Agreement between Steven L.
Schneider and Trion, Inc. dated July 28, 1995. (**)
10.17 Trion, Inc. 1995 Non-Employee Director Stock Plan (incorporated
herein by reference to the Registrant's Registration Statement
No.033-58561 on Form S-8 dated April 12, 1995). (*) (**)
21.1 Subsidiaries of the Registrant.
23.1 Consent of Independent Auditors.
27 Financial Data Schedule.
(**) Management Contract or Compensatory Plan.
-31-
EXHIBIT 4.1
$18,000,000
CREDIT AGREEMENT
dated as of
September 8, 1995
among
TRION, INC.
The Banks Listed Herein
and
WACHOVIA BANK OF GEORGIA, N.A.,
as Agent
<PAGE>
TABLE OF CONTENTS
CREDIT AGREEMENT
Page
ARTICLE I
DEFINITIONS. . . . . . . . . . . . . . . 1
SECTION 1.01. Definitions. . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. Accounting Terms and Determinations. . . . . . . . . . . . 14
SECTION 1.03. References . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 1.04. Use of Defined Terms . . . . . . . . . . . . . . . . . . . 15
SECTION 1.05. Terminology. . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE II
THE CREDITS. . . . . . . . . . . . . . . 15
SECTION 2.01. Commitments to Lend Revolver Loans . . . . . . . . . . . . 15
SECTION 2.02. Commitments to Make Term Loan Advances . . . . . . . . . . 15
SECTION 2.03. Method of Borrowing Loans. . . . . . . . . . . . . . . . . 16
SECTION 2.04. Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 2.05. Maturity of Loans. . . . . . . . . . . . . . . . . . . . . 19
SECTION 2.06. Interest Rates . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 2.07. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 2.08. Optional Termination or Reduction of Commitments . . . . . 21
SECTION 2.09. Mandatory Reduction and Termination of Commitments . . . . 21
SECTION 2.10. Optional Prepayments . . . . . . . . . . . . . . . . . . . 21
SECTION 2.11. Mandatory Prepayments. . . . . . . . . . . . . . . . . . . 21
SECTION 2.12. General Provisions as to Payments. . . . . . . . . . . . . 22
SECTION 2.13. Computation of Interest and Fees . . . . . . . . . . . . . 23
P(i)
<PAGE>
ARTICLE III
CONDITIONS TO BORROWINGS. . . . . . . . . . . . 24
SECTION 3.01. Conditions to First Borrowing. . . . . . . . . . . . . . . 24
SECTION 3.02. Conditions to All Borrowings . . . . . . . . . . . . . . . 25
ARTICLE IV
REPRESENTATIONS AND WARRANTIES . . . . . . . . . . 26
SECTION 4.01. Corporate Existence and Power. . . . . . . . . . . . . . . 26
SECTION 4.02. Corporate and Governmental Authorization; No Contravention 26
SECTION 4.03. Binding Effect . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 4.04. Financial Information. . . . . . . . . . . . . . . . . . . 27
SECTION 4.05. No Litigation. . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 4.06. Compliance with ERISA. . . . . . . . . . . . . . . . . . . 27
SECTION 4.07. Compliance with Laws; Payment of Taxes . . . . . . . . . . 27
SECTION 4.08. Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 4.09. Investment Company Act . . . . . . . . . . . . . . . . . . 28
SECTION 4.10. Public Utility Holding Company Act . . . . . . . . . . . . 28
SECTION 4.11. Ownership of Property; Liens . . . . . . . . . . . . . . . 28
SECTION 4.12. No Default . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 4.13. Full Disclosure. . . . . . . . . . . . . . . . . . . . . . 28
SECTION 4.14. Environmental Matters. . . . . . . . . . . . . . . . . . . 29
SECTION 4.15. Capital Stock. . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 4.16. Margin Stock . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 4.17. Insolvency . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 4.18. Insurance. . . . . . . . . . . . . . . . . . . . . . . . . 30
P(ii)
<PAGE>
ARTICLE V
COVENANTS . . . . . . . . . . . . . . . 30
SECTION 5.01. Information. . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 5.02. Inspection of Property, Books and Records. . . . . . . . . 32
SECTION 5.03. Maintenance of Existence . . . . . . . . . . . . . . . . . 32
SECTION 5.04. Dissolution. . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 5.05. Consolidations, Mergers and Sales of Assets. . . . . . . . 33
SECTION 5.06. Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . 33
SECTION 5.07. Compliance with Laws; Payment of Taxes . . . . . . . . . . 34
SECTION 5.08. Insurance. . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 5.09. Change in Fiscal Year. . . . . . . . . . . . . . . . . . . 34
SECTION 5.10. Maintenance of Property. . . . . . . . . . . . . . . . . . 34
SECTION 5.11. Environmental Notices. . . . . . . . . . . . . . . . . . . 34
SECTION 5.12. Environmental Matters. . . . . . . . . . . . . . . . . . . 35
SECTION 5.13. Environmental Release. . . . . . . . . . . . . . . . . . . 35
SECTION 5.14. Transactions with Affiliates . . . . . . . . . . . . . . . 35
SECTION 5.15. Additional Debt. . . . . . . . . . . . . . . . . . . . . . 35
SECTION 5.16. Loans or Advances. . . . . . . . . . . . . . . . . . . . . 35
SECTION 5.17. Investments. . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 5.18. Negative Pledge. . . . . . . . . . . . . . . . . . . . . . 36
SECTION 5.19. Fixed Charges Coverage . . . . . . . . . . . . . . . . . . 37
SECTION 5.20. Ratio of Consolidated Funded Debt to Consolidated Total Capital 37
SECTION 5.21. Ratio of Consolidated Funded Debt to Consolidated Cash Flow. 37
SECTION 5.22. Minimum Consolidated Net Worth . . . . . . . . . . . . . . 37
SECTION 5.23. Domestic Significant Subsidiaries to Become Guarantors; Release of
Guarantors to be Sold . . . . . . . . . . . . . . . . . . . . . . . 38
P(iii)
<PAGE>
SECTION 5.24. Capital Stock and Promissory Notes of Foreign Significant
Subsidiaries to Be Pledged. . . . . . . . . . . . . . . . . . . . . 38
ARTICLE VI
DEFAULTS. . . . . . . . . . . . . . . . 39
SECTION 6.01. Events of Default. . . . . . . . . . . . . . . . . . . . . 39
SECTION 6.02. Notice of Default. . . . . . . . . . . . . . . . . . . . . 42
ARTICLE VII
THE AGENT . . . . . . . . . . . . . . . 42
SECTION 7.01. Appointment; Powers and Immunities . . . . . . . . . . . . 42
SECTION 7.02. Reliance by Agent. . . . . . . . . . . . . . . . . . . . . 43
SECTION 7.03. Defaults . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 7.04. Rights of Agent as a Bank. . . . . . . . . . . . . . . . . 43
SECTION 7.05. Indemnification. . . . . . . . . . . . . . . . . . . . . . 44
SECTION 7.06 Consequential Damages. . . . . . . . . . . . . . . . . . . 44
SECTION 7.07. Payee of Note Treated as Owner . . . . . . . . . . . . . . 44
SECTION 7.08. Nonreliance on Agent and Other Banks . . . . . . . . . . . 45
SECTION 7.09. Failure to Act . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 7.10. Resignation or Removal of Agent. . . . . . . . . . . . . . 45
ARTICLE VIII
CHANGE IN CIRCUMSTANCES; COMPENSATION . . . . . . . . 46
SECTION 8.01. Basis for Determining Interest Rate Inadequate or Unfair . 46
SECTION 8.02. Illegality . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 8.03. Increased Cost and Reduced Return. . . . . . . . . . . . . 47
SECTION 8.04. Base Rate Loans Substituted for Euro-Dollar Loans. . . . . 48
SECTION 8.05. Compensation . . . . . . . . . . . . . . . . . . . . . . . 49
P(iv)
<PAGE>
ARTICLE IX
MISCELLANEOUS . . . . . . . . . . . . . . 49
SECTION 9.01. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 9.02. No Waivers . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 9.03. Expenses; Documentary Taxes. . . . . . . . . . . . . . . . 50
SECTION 9.04. Indemnification. . . . . . . . . . . . . . . . . . . . . . 50
SECTION 9.05. Setoff; Sharing of Setoffs . . . . . . . . . . . . . . . . 51
SECTION 9.06. Amendments and Waivers . . . . . . . . . . . . . . . . . . 52
SECTION 9.07. No Margin Stock Collateral . . . . . . . . . . . . . . . . 53
SECTION 9.08. Successors and Assigns . . . . . . . . . . . . . . . . . . 53
SECTION 9.09. Confidentiality. . . . . . . . . . . . . . . . . . . . . . 55
SECTION 9.10. Representation by Banks. . . . . . . . . . . . . . . . . . 55
SECTION 9.11. Obligations Several. . . . . . . . . . . . . . . . . . . . 56
SECTION 9.12. North Carolina Law . . . . . . . . . . . . . . . . . . . . 56
SECTION 9.13. Severability . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 9.14. Interest . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 9.15. Interpretation . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 9.16. Waiver of Jury Trial; Consent to Jurisdiction. . . . . . . 57
SECTION 9.17. Counterparts . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 9.18. Source of Funds -- ERISA . . . . . . . . . . . . . . . . . 58
P(v)
<PAGE>
EXHIBIT A-1 Form of Revolver Loan Note
EXHIBIT A-2 Form of Term Loan Note
EXHIBIT B Form of Opinion of Counsel for the Borrower
EXHIBIT C Form of Opinion of Special Counsel for the Agent
EXHIBIT D Form of Assignment and Acceptance
EXHIBIT E Form of Notice of Borrowing
EXHIBIT F Form of Compliance Certificate
EXHIBIT G Form of Closing Certificate
EXHIBIT H Form of Funding Indemnification Letter
EXHIBIT I Form of Guaranty
EXHIBIT J Form of Contribution Agreement
Schedule 4.08 Subsidiaries
P(vi)
<PAGE>
CREDIT AGREEMENT
CREDIT AGREEMENT dated as of September 8, 1995 among TRION, INC., the BANKS
listed on the signature pages hereof and WACHOVIA BANK OF GEORGIA, N.A., as
Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The terms as defined in this Section 1.01 shall,
for all purposes of this Agreement and any amendment hereto (except as herein
otherwise expressly provided or unless the context otherwise requires), have
the meanings set forth herein:
"Acquisition" means any acquisition of the stock in or a significant part of
the assets of any Person, other than acquisition of supplies and raw materials
in the ordinary course of business.
"Adjusted London Interbank Offered Rate" has the meaning set forth in Section
2.06(c).
"Affected Bank" has the meaning set forth in Section 8.03.
"Affiliate" of any relevant Person means (i) any Person that directly, or
indirectly through one or more intermediaries, controls the relevant Person (a
"Controlling Person"), (ii) any Person (other than the relevant Person or a
Subsidiary of the relevant Person) which is controlled by or is under common
control with a Controlling Person, or (iii) any Person (other than a
Subsidiary of the relevant Person) of which the relevant Person owns, directly
or indirectly, 20% or more of the common stock or equivalent equity interests.
As used herein, the term "control" means possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of
a Person, whether through the ownership of voting securities, by contract or
otherwise.
"Agent" means Wachovia Bank of Georgia, N.A., a national banking association
organized under the laws of the United States of America, in its capacity as
agent for the Banks hereunder, and its successors and permitted assigns in
such capacity.
"Agreement" means this Credit Agreement, together with all amendments and
supplements hereto.
P(1)
<PAGE>
"Amortization Date" means the date which is 18 months after the Closing Date.
"Anniversary Date" means each anniversary of the Closing Date.
"Applicable Margin" has the meaning set forth in Section 2.06(a).
"Assignee" has the meaning set forth in Section 9.08(c).
"Assignment and Acceptance" means an Assignment and Acceptance executed in
accordance with Section 9.08(c) in the form attached hereto as Exhibit D.
"Authority" has the meaning set forth in Section 8.02.
"Bank" means each bank listed on the signature pages hereof as having a
Commitment, and its successors and assigns.
"Base Rate" means for any Base Rate Loan for any day, the rate per annum equal
to the higher as of such day of (i) the Prime Rate, or (ii) one-half of one
percent above the Federal Funds Rate. For purposes of determining the Base
Rate for any day, changes in the Prime Rate or the Federal Funds Rate shall be
effective on the date of each such change.
"Base Rate Loan" means a Loan to be made as a Base Rate Loan pursuant to the
applicable Notice of Borrowing, Section 2.02(f), or Article VIII, as
applicable.
"Borrower" means Trion, Inc., a Pennsylvania corporation, and its successors
and its permitted assigns.
"Borrowing" means a borrowing hereunder consisting of Loans made to the
Borrower at the same time by all of the Banks, pursuant to Article II. A
Borrowing is a "Base Rate Borrowing" if such Loans are Base Rate Loans or a
"Euro-Dollar Borrowing" if such Loans are Euro-Dollar Loans. A Borrowing is a
"Revolver Loan Borrowing" if such Loans are made pursuant to Section 2.01 or a
"Term Loan Borrowing" if such Loans are made pursuant to Section 2.02.
"Capital Stock" means any nonredeemable capital stock of the Borrower or any
Consolidated Subsidiary (to the extent issued to a Person other than the
Borrower), whether common or preferred.
"CERCLA" means the Comprehensive Environmental Response Compensation and
Liability Act, 42 U.S.C. 9601 et. seq. and its implementing regulations and
amendments.
P(2)
<PAGE>
"CERCLIS" means the Comprehensive Environmental Response Compensation and
Liability Inventory System established pursuant to CERCLA.
"Change of Law" shall have the meaning set forth in Section 8.02.
"Closing Certificate" has the meaning set forth in Section 3.01(e).
"Closing Date" means September 8, 1995.
"Code" means the Internal Revenue Code of 1986, as amended, or any successor
Federal tax code.
"Commitment" means, with respect to each Bank, its Revolver Loan Commitment
and its Term Loan Commitment.
"Compliance Certificate" has the meaning set forth in Section 5.01(c).
"Consolidated Cash Flow" means the sum of the following, calculated on a
consolidated basis in accordance with GAAP for the Borrower and its
Consolidated Subsidiaries at the end of each Fiscal Quarter for such Fiscal
Quarter and the 3 immediately preceding Fiscal Quarters: (i) Consolidated Net
Income, plus (ii) depreciation and amortization expense, plus (iii) other non-
cash charges.
"Consolidated Fixed Charges" for any period means the sum of (i) Consolidated
Interest Expense for such period, and (ii) all payment obligations for such
period under all operating leases and rental agreements.
"Consolidated Funded Debt" means at any date the sum of the Debt of the
Borrower and its Consolidated Subsidiaries, determined on a consolidated basis
as of such date, consisting of (i) indebtedness for borrowed money, (ii)
capital leases and (iii) Guarantees of Debt of Persons other than the Borrower
or any Consolidated Subsidiary.
"Consolidated Interest Expense" for any period means interest, whether
expensed or capitalized, in respect of Debt of the Borrower or any of its
Consolidated Subsidiaries outstanding during such period.
"Consolidated Net Income" means, for any period, the Net Income of the
Borrower and its Consolidated Subsidiaries determined on a consolidated basis,
but excluding (i) extraordinary items and (ii) any equity interests of the
Borrower or any Subsidiary in the unremitted earnings of any Person that is
not a Subsidiary.
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"Consolidated Net Worth" means, at any time,
the shareholders' equity of the Borrower and its Consolidated Subsidiaries, as
set forth or reflected on the most recent consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries prepared in accordance with GAAP,
but excluding any Redeemable Preferred Stock of the Borrower or any of its
Consolidated Subsidiaries. Consolidated Net Worth generally would include,
but not be limited to (i) the par or stated value of all outstanding Capital
Stock, (ii) capital surplus, (iii) retained earnings, and (iv) various
deductions such as (A) purchases of treasury stock, (B) valuation allowances,
(C) receivables due from an employee stock ownership plan, (D) employee stock
ownership plan debt guarantees, and (E) translation adjustments for foreign
currency transactions.
"Consolidated Operating Profits" means, for any period, the Operating Profits
of the Borrower and its Consolidated Subsidiaries.
"Consolidated Subsidiary" means at any date any Subsidiary or other entity the
accounts of which, in accordance with GAAP, would be consolidated with those
of the Borrower in its consolidated financial statements as of such date.
"Consolidated Total Assets" means, at any time, the total assets of the
Borrower and its Consolidated Subsidiaries, determined on a consolidated
basis, as set forth or reflected on the most recent consolidated balance sheet
of the Borrower and its Consolidated Subsidiaries, prepared in accordance with
GAAP.
"Consolidated Total Capital" means, at any time, the sum of (i) Consolidated
Net Worth, and (ii) Consolidated Funded Debt.
"Controlled Group" means all members of a controlled group of corporations and
all trades or businesses (whether or not incorporated) under common control
which, together with the Borrower, are treated as a single employer under
Section 414 of the Code.
"Debt" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person to pay the deferred purchase price of
property or services, except trade accounts payable arising in the ordinary
course of business, (iv) all obligations of such Person as lessee under
capital leases, (v) all obligations of such Person to reimburse any bank or
other Person in respect of amounts payable under a banker's acceptance, (vi)
all Redeemable Preferred Stock of such Person (in the event such Person is a
corporation), (vii) all obligations of such Person to reimburse any bank or
other Person in respect of amounts paid or to be paid under a letter of credit
or similar instrument, (viii) all Debt
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of others secured by a Lien on any
asset of such Person, whether or not such Debt is assumed by such Person, and
(ix) all Debt and other obligations of others Guaranteed by such Person.
"Default" means any condition or event which constitutes an Event of Default
or which with the giving of notice or lapse of time or both would, unless
cured or waived, become an Event of Default.
"Default Rate" means, with respect to any Loan, on any day, the sum of 2% plus
the then highest interest rate (including the Applicable Margin) which may be
applicable to any Loans hereunder (irrespective of whether any such type of
Loans are actually outstanding hereunder).
"Dollars" or "$" means dollars in lawful currency of the United States of
America.
"Domestic Business Day" means any day except a Saturday, Sunday or other day
on which commercial banks in Georgia are authorized by law to close.
"Domestic Significant Subsidiary" means a Significant Subsidiary which is not
a Foreign Significant Subsidiary.
"Drawdown Date", with respect to any Term Loan Advance, has the meaning set
forth in Section 2.02.
"EBILT" means the sum of the following, calculated on a consolidated basis in
accordance with GAAP for the Borrower and its Consolidated Subsidiaries at the
end of each Fiscal Quarter for such Fiscal Quarter and the 3 immediately
preceding Fiscal Quarters: (i) Consolidated Net Income; plus (ii) income
taxes; plus (iii) Consolidated Fixed Charges.
"Environmental Authority" means any foreign, federal, state, local or regional
government that exercises any form of jurisdiction or authority under any
Environmental Requirement.
"Environmental Authorizations" means all licenses, permits, orders, approvals,
notices, registrations or other legal prerequisites for conducting the
business of the Borrower or any Subsidiary required by any Environmental
Requirement.
"Environmental Judgments and Orders" means all judgments, decrees or orders
arising from or in any way associated with any Environmental Requirements,
whether or not entered upon consent, or written agreements with an
Environmental Authority or other entity arising from or in any way associated
with any Environmental Requirement, whether or not incorporated in a judgment,
decree or order.
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"Environmental Liabilities" means any liabilities, whether accrued, contingent
or otherwise, arising from and in any way associated with any Environmental
Requirements.
"Environmental Notices" means all notices from any Environmental Authority or
all material notices from any other person or entity, of possible or alleged
noncompliance with or liability under any Environmental Requirement, including
without limitation any complaints, citations, demands or requests from any
Environmental Authority or from any other person or entity for correction of
any violation of any Environmental Requirement or any investigations
concerning any violation of any Environmental Requirement.
"Environmental Proceedings" means any judicial or administrative proceedings
arising from or in any way associated with any Environmental Requirement.
"Environmental Releases" means releases as defined in CERCLA or under any
applicable state or local environmental law or regulation.
"Environmental Requirements" means any legal requirement relating to health,
safety or the environment and applicable to the Borrower, any Subsidiary or
the Properties, including but not limited to any such requirement under CERCLA
or similar state legislation and all federal, state and local laws,
ordinances, regulations, orders, writs, decrees and common law.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended
from time to time, or any successor law. Any reference to any provision of
ERISA shall also be deemed to be a reference to any successor provision or
provisions thereof.
"Euro-Dollar Business Day" means any Domestic Business Day on which dealings
in Dollar deposits are carried out in the London interbank market.
"Euro-Dollar Loan" means a Loan to be made as a Euro-Dollar Loan pursuant to
the applicable Notice of Borrowing.
"Euro-Dollar Reserve Percentage" has the meaning set forth in Section 2.06(c).
"Event of Default" has the meaning set forth in Section 6.01.
"Federal Funds Rate" means, for any day, the rate per annum (rounded upward,
if necessary, to the next higher 1/100th of 1%) equal to the weighted average
of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day, provided that (i) if the
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day for which such rate is to be
determined is not a Domestic Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding
Domestic Business Day as so published on the next succeeding Domestic Business
Day, and (ii) if such rate is not so published for any day, the Federal Funds
Rate for such day shall be the average rate charged to the Agent on such day
on such transactions, as determined by the Agent.
"Fiscal Quarter" means any fiscal quarter of the Borrower.
"Fiscal Year" means any fiscal year of the Borrower.
"Foreign Significant Subsidiary" means a Significant Subsidiary (i) located
outside of the United States and (ii) which, with respect to the Borrower,
would be a "controlled foreign corporation" deemed to hold "United States
property" under Section 956 of the Code solely as a result of becoming a
Guarantor by delivering a Guaranty.
"Funding Indemnification Letter" means a letter from the Borrower to the Agent
substantially in the form of Exhibit H, pursuant to which (i) the Banks and
the Borrower shall agree upon the interest rates, amount of Borrowing and
Interest Periods for each portion of any Borrowing on the Closing Date which
is to constitute a Euro-Dollar Loan, and (ii) the Borrower shall indemnify the
Banks from any loss or expense arising from the failure to close on the
anticipated Closing Date identified in such letter or the failure to borrow
such Euro-Dollar Loan on such date, unless such failure is caused solely by
the Banks' breach of this Agreement.
"GAAP" means generally accepted accounting principles applied on a basis
consistent with those which, in accordance with Section 1.02, are to be used
in making the calculations for purposes of determining compliance with the
terms of this Agreement.
"Guarantee" by any Person means any obligation, contingent or otherwise, of
such Person directly or indirectly guaranteeing any Debt or other obligation
of any other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
secure, purchase or pay (or advance or supply funds for the purchase or
payment of) such Debt or other obligation (whether arising by virtue of
partnership arrangements, by agreement to keep-well, to purchase assets,
goods, securities or services, to provide collateral security, to take-or-pay,
or to maintain financial statement conditions or otherwise) or (ii) entered
into for the purpose of assuring in any other manner the obligee of such Debt
or other obligation of the payment thereof or to protect such obligee against
loss in respect thereof (in whole or in part), provided that the term
Guarantee shall not
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include endorsements for collection or deposit in the
ordinary course of business. The term "Guarantee" used as a verb has a
corresponding meaning.
"Guarantors" means any one or more or all of the following, as the context
shall require: (i) Envirco Corporation; and (ii) any Domestic Significant
Subsidiary which becomes a Guarantor pursuant to Section 5.23, in each case
subject to the provisions of the last sentence of Section 5.23.
"Guaranty" means the Guaranty Agreement of even date herewith in substantially
the form of Exhibit "I" to be executed by the Guarantors, unconditionally and
jointly and severally Guaranteeing payment of the Loans, the Notes and all
other obligations of the Borrower to the Agent and the Banks hereunder,
including without limitation all principal, interest, fees, costs, and
compensation and indemnification amounts.
"Hazardous Materials" includes, without limitation, (a) solid or hazardous
waste, as defined in the Resource Conservation and Recovery Act of 1980, 42
U.S.C. 6901 et seq. and its implementing regulations and amendments, or in
any applicable state or local law or regulation, (b) "hazardous substance",
"pollutant", or "contaminant" as defined in CERCLA, or in any applicable state
or local law or regulation, (c) gasoline, or any other petroleum product or
by-product, including, crude oil or any fraction thereof, or (d) pesticides,
as defined in the Federal Insecticide, Fungicide, and Rodenticide Act of 1975,
or in any applicable state or local law or regulation, as each such Act,
statute or regulation may be amended from time to time.
"Interest Period" means: (1) with respect to each Euro-Dollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the first, second, third or sixth month thereafter, as
the Borrower may elect in the applicable Notice of Borrowing; provided that:
(a)
any Interest Period (subject to paragraph (c) below) which would otherwise end
on a day which is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day falls
in another calendar month, in which case such Interest Period shall end on the
next preceding Euro-Dollar Business Day;
(b)
any Interest Period which begins on the last Euro-Dollar Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the appropriate subsequent calendar month) shall, subject to paragraph
(c) below, end on the last Euro-Dollar Business Day of the appropriate
subsequent calendar month; and
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(c) no Interest Period may be selected which begins before the Termination
Date and would otherwise end after the Termination Date.
(2) with respect to each Base Rate Borrowing, the period commencing on the
date of such Borrowing and ending 30 days thereafter; provided that:
(a)
any Interest Period (subject to paragraph (b) below) which would otherwise end
on a day which is not a Domestic Business Day shall be extended to the next
succeeding Domestic Business Day; and
(b)
no Interest Period which begins before the Termination Date and would
otherwise end after the Termination Date may be selected.
"Installment Payment Date" means, for the Term Loan, each Anniversary Date and
each date which is six months after, and on the same day of the month as, each
Anniversary Date (or on the first Domestic Business Day thereafter, if such
day of the month is not a Domestic Business Day), commencing on the
Amortization Date.
"Investment" means any investment in any Person, whether by means of purchase
or acquisition of obligations or securities of such Person, capital
contribution to such Person, loan or advance to such Person, making of a time
deposit with such Person, Guarantee or assumption of any obligation of such
Person or otherwise.
"Lending Office" means, as to each Bank, its office located at its address set
forth on the signature pages hereof (or identified on the signature pages
hereof as its Lending Office) or such other office as such Bank may hereafter
designate as its Lending Office by notice to the Borrower and the Agent.
"Lien" means, with respect to any asset, any mortgage, deed to secure debt,
deed of trust, lien, pledge, charge, security interest, security title,
preferential arrangement which has the practical effect of constituting a
security interest or encumbrance, or encumbrance or servitude of any kind in
respect of such asset to secure or assure payment of a Debt or a Guarantee,
whether by consensual agreement or by operation of statute or other law, or by
any agreement, contingent or otherwise, to provide any of the foregoing. For
the purposes of this Agreement, the Borrower or any Subsidiary shall be deemed
to own subject to a Lien any asset which it has acquired or holds subject to
the interest of a vendor or lessor under any conditional sale agreement,
capital lease or other title retention agreement relating to such asset.
"Loan" means a Base Rate Loan, Euro-Dollar Loan, Revolver Loan or Term Loan,
and "Loans" means Base Rate Loans, Euro-Dollar Loans, Revolver Loans,
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Term Loans, or any or all of them, as the context shall require.
"Loan Documents" means this Agreement, the Notes, any other document
evidencing, relating to or securing the Loans, and any other document or
instrument delivered from time to time in connection with this Agreement, the
Notes or the Loans, as such documents and instruments may be amended or
supplemented from time to time.
"London Interbank Offered Rate" has the meaning set forth in Section 2.06(c).
"Margin Stock" means "margin stock" as defined in Regulations G, T, U or X.
"Material Adverse Effect" means, with respect to any event, act, condition or
occurrence of whatever nature (including any adverse determination in any
litigation, arbitration, or governmental investigation or proceeding), whether
singly or in conjunction with any other event or events, act or acts,
condition or conditions, occurrence or occurrences, whether or not related, a
material adverse change in, or a material adverse effect upon, any of (a) the
financial condition, operations, business, properties or prospects of the
Borrower and its Consolidated Subsidiaries taken as a whole, (b) the rights
and remedies of the Agent or the Banks under the Loan Documents, or the
ability of the Borrower to perform its obligations under the Loan Documents to
which it is a party, as applicable, or (c) the legality, validity or
enforceability of any Loan Document.
"Maturity Date" means, for the Term Loans, the Domestic Business Day
immediately preceding the fifth Anniversary Date.
"Multiemployer Plan" shall have the meaning set forth in Section 4001(a)(3) of
ERISA.
"Net Income" means, as applied to any Person for any period, the aggregate
amount of net income of such Person, after taxes, for such period, as
determined in accordance with GAAP.
"Notes" means each of the Revolver Loan Notes or Term Loan Notes, or any or
all of them, as the context shall require.
"Notice of Borrowing" has the meaning set forth in Section 2.02.
"Operating Profits" means, as applied to any Person for any period, the
operating income of such Person for such period, as determined in accordance
with GAAP.
"Participant" has the meaning set forth in Section 9.08(b).
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"PBGC" means the Pension Benefit Guaranty Corporation or any entity succeeding
to any or all of its functions under ERISA.
"Permitted Acquisition" means (i) the acquisition of Envirco Corporation, a
New Mexico corporation, and (ii) any other Acquisition which constitutes an
Investment permitted by Section 5.17.
"Person" means an individual, a corporation, a partnership, an unincorporated
association, a trust or any other entity or organization, including, but not
limited to, a government or political subdivision or an agency or
instrumentality thereof.
"Plan" means at any time an employee pension benefit plan which is covered by
Title IV of ERISA or subject to the minimum funding standards under Section
412 of the Code and is either (i) maintained by a member of the Controlled
Group for employees of any member of the Controlled Group or (ii) maintained
pursuant to a collective bargaining agreement or any other arrangement under
which more than one employer makes contributions and to which a member of the
Controlled Group is then making or accruing an obligation to make
contributions or has within the preceding 5 plan years made contributions.
"Prime Rate" refers to that interest rate so denominated and set by Wachovia
from time to time as an interest rate basis for borrowings. The Prime Rate is
but one of several interest rate bases used by Wachovia. Wachovia lends at
interest rates above and below the Prime Rate.
"Properties" means all real property owned, leased or otherwise used or
occupied by the Borrower or any Subsidiary, wherever located.
"Redeemable Preferred Stock" of any Person means any preferred stock issued by
such Person which is at any time prior to the Termination Date either (i)
mandatorily redeemable (by sinking fund or similar payments or otherwise) or
(ii) redeemable at the option of the holder thereof.
"Refunding Loan" means a new Loan made on the day on which an outstanding Loan
is maturing or a Base Rate Borrowing is being converted to a Euro-Dollar
Borrowing, if and to the extent that the proceeds thereof are used entirely
for the purpose of paying such maturing Loan or Loan being converted,
excluding any difference between the amount of such maturing Loan or Loan
being converted and any greater amount being borrowed on such day and actually
either being made available to the Borrower pursuant to Section 2.03(c) or
remitted to the Agent as provided in Section 2.12, in each case as
contemplated in Section 2.03(d).
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"Regulation G" means Regulation G of the Board of Governors of the Federal
Reserve System, as in effect from time to time, together with all official
rulings and interpretations issued thereunder.
"Regulation T" means Regulation T of the Board of Governors of the Federal
Reserve System, as in effect from time to time, together with all official
rulings and interpretations issued thereunder.
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System, as in effect from time to time, together with all official
rulings and interpretations issued thereunder.
"Regulation X" means Regulation X of the Board of Governors of the Federal
Reserve System, as in effect from time to time, together with all official
rulings and interpretations issued thereunder.
"Required Banks" means at any time Banks having at least 67% of the aggregate
amount of the Commitments or, if the Commitments are no longer in effect,
Banks holding at least 67% of the aggregate outstanding principal amount of
the sum of the (i) Revolver Loans and (ii) Term Loans.
"Revolver Loan" means the revolver loans to be made by each Bank hereunder in
the amount of its Revolver Loan Commitment, and "Revolver Loans" means,
collectively, the Revolver Loans of all of the Banks.
"Revolver Loan Commitment" means, with respect to each Bank, the amount set
forth as the Revolver Loan Commitment opposite the name of such Bank on the
signature pages hereof, as such amount may be reduced from time to time
pursuant to Sections 2.08 and 2.09. The aggregate Revolver Loan Commitment is
Eight Million Dollars ($8,000,000).
"Subsidiary" means any corporation or other entity of which securities or
other ownership interests having ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions are at
the time directly or indirectly owned by the Borrower.
"Revolver Loans" means Base Rate Loans or Euro-Dollar Loans made pursuant to
the terms and conditions set forth in Section 2.01.
"Revolver Loan Notes" means the promissory notes of the Borrower,
substantially in the form of Exhibit A-1, evidencing the obligation of the
Borrower to repay Revolver Loans, together with all amendments,
consolidations, modifications, renewals and supplements thereto.
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"Significant Subsidiary" means any Subsidiary which either (x) has assets
which constitute more than 5% of Consolidated Total Assets at the end of the
most recent Fiscal Quarter, or (y) contributed more than 5% of Consolidated
Operating Profits during the most recent Fiscal Quarter and the 3 Fiscal
Quarters immediately preceding such Fiscal Quarter (or, with respect to any
Subsidiary which existed during the entire 4 Fiscal Quarter period but was
acquired by the Borrower during such period, which would have contributed more
than 5% of Consolidated Operating Profits during such period had it been a
Subsidiary for the entire period).
"Taxes" has the meaning set forth in Section 2.12(c).
"Termination Date" means, for the Revolver Loans, the Domestic Business Day
immediately preceding the third Anniversary Date.
"Term Loan" means the term loans to be made by each Bank hereunder in the
amount of its Term Loan Commitment, which may consist of up to 3 Term Loan
Advances, and "Term Loans" means, collectively, the Term Loans of all of the
Banks.
"Term Loan Advance" means any initial advance of funds by the Banks
constituting part of the Term Loans, pursuant to Section 2.02.
"Term Loan Commitment" means, with respect to each Bank, the amount set forth
as the Term Loan Commitment opposite the name of such Bank on the signature
pages hereof, as such amount may be reduced from time to time pursuant to
Sections 2.08 and 2.09. The aggregate Term Loan Commitment is Ten Million
Dollars ($10,000,000).
"Term Notes" means the promissory notes of the Borrower, substantially in the
form of Exhibit A-2, evidencing the obligation of the Borrower to repay the
Term Loans, together with all amendments, consolidations, modifications,
renewals and supplements thereto.
"Third Parties" means all lessees, sublessees, licensees and other users of
the Properties, excluding those users of the Properties in the ordinary course
of the Borrower's business and on a temporary basis.
"Transferee" has the meaning set forth in Section 9.08(d).
"Unfunded Vested Liabilities" means, with respect to any Plan at any time, the
amount (if any) by which (i) the present value of all vested nonforfeitable
benefits under such Plan exceeds (ii) the fair market value of all Plan assets
allocable to such benefits, all determined as of the then most recent
valuation date for such Plan, but only to the extent that
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such excess represents a potential liability of a member of the Controlled
Group to the PBGC or the Plan under Title IV of ERISA.
"Unused Commitment" means, as to any Bank, the sum of its Unused Revolver Loan
Commitment and its Unused Term Loan Commitment.
"Unused Revolver Loan Commitment" means at any date, with respect to any Bank,
an amount equal to its Revolver Loan Commitment less the aggregate outstanding
principal amount of its Revolver Loans.
"Unused Term Loan Commitment" means, at any date, with respect to any Bank, an
amount equal to its Term Loan Commitment less the aggregate amount of Term
Loan Advances which it has made.
"Wachovia" means Wachovia Bank of North Carolina, N.A., a national banking
association, and its successors.
"Wholly Owned Subsidiary" means any Subsidiary all of the shares of capital
stock or other ownership interests of which (except directors' qualifying
shares) are at the time directly or indirectly owned by the Borrower.
SECTION 1.02. Accounting Terms and Determinations. Unless otherwise specified
herein, all terms of an accounting character used herein shall be interpreted,
all accounting determinations hereunder shall be made, and all financial
statements required to be delivered hereunder shall be prepared, in accordance
with GAAP, applied on a basis consistent (except for changes concurred in by
the Borrower's independent public accountants or otherwise required by a
change in GAAP) with the most recent audited consolidated financial statements
of the Borrower and its Consolidated Subsidiaries delivered to the Banks
unless with respect to any such change concurred in by the Borrower's
independent public accountants or required by GAAP, in determining compliance
with any of the provisions of this Agreement or any of the other Loan
Documents: (i) the Borrower shall have objected to determining such compliance
on such basis at the time of delivery of such financial statements, or (ii)
the Required Banks shall so object in writing within 30 days after the
delivery of such financial statements, in either of which events such
calculations shall be made on a basis consistent with those used in the
preparation of the latest financial statements as to which such objection
shall not have been made (which, if objection is made in respect of the first
financial statements delivered under Section 5.01 hereof, shall mean the
financial statements referred to in Section 4.04).
SECTION 1.03. References. Unless otherwise indicated, references in this
Agreement to "Articles", "Exhibits", "Schedules", "Sections" and other
Subdivisions are references to
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articles, exhibits, schedules, sections and other subdivisions hereof.
SECTION 1.04. Use of Defined Terms. All terms defined in this Agreement shall
have the same defined meanings when used in any of the other Loan Documents,
unless otherwise defined therein or unless the context shall require
otherwise.
SECTION 1.05. Terminology. All personal pronouns used in this Agreement,
whether used in the masculine, feminine or neuter gender, shall include all
other genders; the singular shall include the plural, and the plural shall
include the singular. Titles of Articles and Sections in this Agreement are
for convenience only, and neither limit nor amplify the provisions of this
Agreement.
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend Revolver Loans. Each Bank severally agrees,
on the terms and conditions set forth herein, to make Revolver Loans to the
Borrower from time to time before the Termination Date; provided that,
(i) immediately after each such Revolver Loan is made, the aggregate principal
amount of Revolver Loans by such Bank shall not exceed the amount of its
Revolver Loan Commitment, and
(ii) the aggregate outstanding amount of all Revolver Loans and the aggregate
amount of Term Loan Advances which have been made shall not exceed the
aggregate amount of the Commitments.
Each Revolver Loan Borrowing under this Section shall be in an aggregate
principal amount of (i) $1,000,000 or any larger multiple of $1,000 in the
case of Euro-Dollar Loans, and (ii) $100,000 or any larger multiple of $1,000
in the case of Base Rate Loans (except that any such Revolver Loan Borrowing
may be in the aggregate amount of the Unused Revolver Loan Commitments), and
in each case shall be made from the several Banks ratably in proportion to
their respective Revolver Loan Commitments. Within the foregoing limits, the
Borrower may borrow under this Section, repay or, to the extent permitted by
Section 2.10, prepay Revolver Loans and reborrow under this Section at any
time before the Termination Date.
SECTION 2.02. Commitments to Make Term Loan Advances. Each Bank severally
agrees, on the terms and conditions set forth herein, to make up to 3 Term
Loan Advances to the Borrower in an aggregate amount up to the amount of the
Term Loan Commitment. Each Term Loan Advance and Refunding Loan under this
Section
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shall be in an aggregate principal amount of (i) $1,000,000 or any
larger multiple of $1,000 in the case of Euro-Dollar Loans, and (ii) $150,000
or any larger multiple of $1,000 in the case of Base Rate Loans, and in each
case shall be made from the several Banks ratably in proportion to their
respective Term Loan Commitments outstanding. A Term Loan Advance may be made
on a date specified in a Notice of Borrowing pursuant to Section 2.03 (such
date of any Term Loan Advance being the "Drawdown Date" for such Term Loan
Advance), which Drawdown Date must be (A) a Euro-Dollar Business Day (or a
Domestic Business Day, in the case of a Base Rate Borrowing), and (B) (1) on
the Closing Date, with respect to the first Term Loan Advance, and (2) on or
before the Amortization Date, with respect to any subsequent Term Loan
Advance. Thereafter, each Bank severally agrees to make Refunding Loans from
time to time before the Maturity Date. Subject to the provisions of Section
2.10(b), Term Loans may prepaid at any time without premium or penalty, but
principal amounts prepaid, and principal amounts repaid on Installment Payment
Dates, may not be reborrowed, except as Refunding Loans. Upon the funding of
3 Term Loan Advances or a lesser number of Term Loan Advances in an aggregate
amount equal to the aggregate Term Loan Commitments, whichever is applicable,
the Term Loan Commitments shall terminate. The aggregate principal amount of
the Term Loans shall be repaid in 8 consecutive semi-annual installments of
principal, each in an amount equal to 0.125% of the aggregate principal amount
of the Term Loans on the Amortization Date, after giving effect to any Term
Loan Advances made on such date (and if any Term Loan Advances are made on the
Amortization Date, they shall be netted against the principal installment due
on such date, and only the excess remaining shall be funded as a Term Loan
Advance or paid as principal installment, as the case may be), with a final
payment of all outstanding principal and all accrued and unpaid interest on
the Maturity Date.
SECTION 2.03. Method of Borrowing Loans. (a) The Borrower shall give the
Agent notice (a "Notice of Borrowing"), which shall be substantially in the
form of Exhibit E, prior to 11:00 A.M. (Atlanta, Georgia time) on the same
Domestic Business Day for each Base Rate Borrowing and at least 3 Euro-Dollar
Business Days before each Euro-Dollar Borrowing, specifying:
(i)
the date of such Borrowing, which shall be a Domestic Business Day in the case
of a Base Rate Borrowing or a Euro-Dollar Business Day in the case of a
Euro-Dollar Borrowing,
(ii) the aggregate amount of such Borrowing, and whether such Borrowing is a
Revolver Loan Borrowing or a Term Loan Advance,
(iii) whether the Loans comprising such Borrowing are to be Base Rate Loans or
Euro-Dollar Loans, and
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(iv) in the case of a Euro-Dollar Borrowing, the duration of the Interest
Period applicable thereto, subject to the provisions of the definition of
Interest Period.
(b)
Upon receipt of a Notice of Borrowing, the Agent shall promptly notify each
Bank of the contents thereof and of such Bank's ratable share of such
Borrowing and such Notice of Borrowing, once received by the Agent, shall not
thereafter be revocable by the Borrower.
(c) Not later than 1:00 P.M. (Atlanta, Georgia time) on the date of each
Borrowing, each Bank shall (except as provided in paragraph (d) of this
Section) make available its ratable share of such Borrowing, in Federal or
other funds immediately available in Atlanta, Georgia, to the Agent at its
address determined pursuant to Section 9.01. Unless the Agent determines that
any applicable condition specified in Article III has not been satisfied, the
Agent will make the funds so received from the Banks available to the Borrower
at the Agent's aforesaid address. Unless the Agent receives notice from a
Bank, at the Agent's address referred to in or specified pursuant to Section
9.01, no later than 1:00 P.M. (local time at such address) on the date of a
Base Rate Borrowing, or 4:00 P.M. (local time at such address) on the Euro-
Dollar Business Day before the date of a Euro-Dollar Borrowing, in either case
stating that such Bank will not make a Loan in connection with such Borrowing,
the Agent shall be entitled to assume that such Bank will make a Loan in
connection with such Borrowing and, in reliance on such assumption, the Agent
may (but shall not be obligated to) make available such Bank's ratable share
of such Borrowing to the Borrower for the account of such Bank. If the Agent
makes such Bank's ratable share available to the Borrower and such Bank does
not in fact make its ratable share of such Borrowing available on such date,
the Agent shall be entitled to recover such Bank's ratable share from such
Bank or the Borrower (and for such purpose shall be entitled to charge such
amount to any account of the Borrower maintained with the Agent), together
with interest thereon for each day during the period from the date of such
Borrowing until such sum shall be paid in full at a rate per annum equal to
the rate at which the Agent determines that it obtained (or could have
obtained) overnight Federal funds to cover such amount for each such day
during such period, provided that (i) any such payment by the Borrower of such
Bank's ratable share and interest thereon shall be without prejudice to any
rights that the Borrower may have against such Bank and (ii) until such Bank
has paid its ratable share of such Borrowing, together with interest pursuant
to the foregoing, it will have no interest in or rights with respect to such
Borrowing for any purpose hereunder. If the Agent does not exercise its
option to advance funds for the account of such Bank, it shall promptly notify
the Borrower of such decision.
(d) If any Bank makes a new Loan hereunder on a day on which the Borrower is
to repay all or any part of an outstanding
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Loan from such Bank, such Bank
shall apply the proceeds of its new Loan to make such repayment as a Refunding
Loan and only an amount equal to the difference (if any) between the amount
being borrowed and the amount of such Refunding Loan shall be made available
by such Bank to the Agent as provided in paragraph (c) of this Section, or
remitted by the Borrower to the Agent as provided in Section 2.12, as the case
may be.
(e)
Notwithstanding anything to the contrary contained in this Agreement, no
Euro-Dollar Borrowing may be made if there shall have occurred a Default or an
Event of Default, which Default or Event of Default shall not have been cured
or waived, and all Refunding Loans shall be made as Base Rate Loans (but shall
bear interest at the Default Rate, if applicable).
(f) In the event that a Notice of Borrowing fails to specify whether the Loans
comprising such Borrowing are to be Base Rate Loans or Euro-Dollar Loans, such
Loans shall be made as Base Rate Loans. If the Borrower is otherwise entitled
under this Agreement to repay any Loans maturing at the end of an Interest
Period applicable thereto with the proceeds of a new Borrowing, and the
Borrower fails to repay such Loans using its own moneys and fails to give a
Notice of Borrowing in connection with such new Borrowing, a new Borrowing
shall be deemed to be made on the date such Loans mature in an amount equal to
the principal amount of the Loans so maturing, and the Loans comprising such
new Borrowing shall be Base Rate Loans.
(g)
Notwithstanding anything to the contrary contained herein, there shall not be
more than 11 Euro-Dollar Loans at any given time.
SECTION 2.04. Notes. (a) The Revolver Loans of each Bank shall be evidenced
by a single Revolver Loan Note payable to the order of such Bank, for the
account of its Lending Office in an amount equal to the original principal
amount of such Bank's Revolver Loan Commitment.
(b)
The Term Loans of each Bank shall be evidenced by a single Term Loan Note
payable to the order of such Bank for the account of its Lending Office in an
amount equal to the original principal amount of such Bank's Term Loan
Commitment.
(c)
Upon receipt of each Bank's Notes pursuant to Section 3.01, the Agent shall
deliver such Notes to such Bank. Each Bank shall record, and prior to any
transfer of its Notes shall endorse on the schedules forming a part thereof
appropriate notations to evidence, the date, amount and maturity of, and
effective interest rate for, each Loan made by it, the date and amount of each
payment of principal made by the Borrower with respect thereto, and such
schedules of each such Bank's Notes shall constitute rebuttable presumptive
evidence of the respective principal amounts owing and unpaid on such Bank's
Notes; provided that the failure of any Bank to make any such
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recordation or
endorsement shall not affect the obligation of the Borrower hereunder or under
the Notes or the ability of any Bank to assign its Notes. Each Bank is hereby
irrevocably authorized by the Borrower so to complete its Notes as set forth
above and to attach to and make a part of any Note a continuation of any such
schedule as and when required.
SECTION 2.05. Maturity of Loans. (a) Each Loan included in any Borrowing
shall mature, and the principal amount thereof shall be due and payable, on
the last day of the Interest Period applicable to such Borrowing.
(b)
Notwithstanding the foregoing, (i) the outstanding principal amount of the
Revolver Loans, if any, together with all accrued but unpaid interest thereon,
if any, shall be due and payable on the Termination Date, and (ii) the
outstanding principal amount of the Term Loans, together with all accrued but
unpaid interest thereon, if any, shall be due and payable on the Maturity
Date.
SECTION 2.06. Interest Rates. (a) "Applicable Margin" means (i) for any Base
Rate Loan, 0%; and (ii) for any Euro-Dollar Loan, 1.30%.
(b) Each Base Rate Loan shall bear interest on the outstanding principal
amount thereof, for each day from the date such Loan is made until it becomes
due, at a rate per annum equal to the Base Rate for such day plus the
Applicable Margin. Such interest shall be payable for each Interest Period on
the last day thereof. Any overdue principal of and, to the extent permitted
by applicable law, overdue interest on any Base Rate Loan shall bear interest,
payable on demand, for each day until paid at a rate per annum equal to the
Default Rate.
(c) Each Euro-Dollar Loan shall bear interest on the outstanding principal
amount thereof, for the Interest Period applicable thereto, at a rate per
annum equal to the sum of the Applicable Margin plus the applicable Adjusted
London Interbank Offered Rate for such Interest Period. Such interest shall
be payable for each Interest Period on the last day thereof and, if such
Interest Period is longer than 3 months, at intervals of 3 months after the
first day thereof. Any overdue principal of and, to the extent permitted by
law, overdue interest on any Euro-Dollar Loan shall bear interest, payable on
demand, for each day until paid at a rate per annum equal to the Default Rate.
The "Adjusted London Interbank Offered Rate" applicable to any Interest Period
means a rate per annum equal to the quotient obtained (rounded upwards, if
necessary, to the next higher 1/100th of 1%) by dividing (i) the applicable
London Interbank Offered Rate for such Interest Period by (ii) 1.00 minus the
Euro-Dollar Reserve Percentage.
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The "London Interbank Offered Rate" applicable to any Euro-Dollar Loan means
for the Interest Period of such Euro-Dollar Loan, the rate per annum
determined on the basis of the offered rate for deposits in Dollars of amounts
equal or comparable to the principal amount of such Euro-Dollar Loan offered
for a term comparable to such Interest Period, which rates appear on the
Reuters Screen LIBO Page effective as of 11:00 A.M., London time, 2
Euro-Dollar Business Days prior to the first day of such Interest Period,
provided that (i) if more than one such offered rate appears on the Reuters
Screen LIBO Page, the "London Interbank Offered Rate" will be the offered rate
which is used in the majority of such quotations, if there is a majority,
otherwise the arithmetic average (rounded upward, if necessary, to the next
higher 1/100th of 1%) of such offered rates; (ii) if no such offered rates
appear on such page, the "London Interbank Offered Rate" for such Interest
Period will be the arithmetic average (rounded upward, if necessary, to the
next higher 1/100th of 1%) of rates quoted by not less than 2 major banks in
New York City, selected by the Agent, at approximately 10:00 A.M., New York
City time, 2 Euro-Dollar Business Days prior to the first day of such Interest
Period, for deposits in Dollars offered to leading European banks for a period
comparable to such Interest Period in an amount comparable to the principal
amount of such Euro-Dollar Loan.
"Euro-Dollar Reserve Percentage" means for any day that percentage (expressed
as a decimal) which is in effect on such day, as prescribed by the Board of
Governors of the Federal Reserve System (or any successor) for determining the
maximum reserve requirement for a member bank of the Federal Reserve System in
respect of "Eurocurrency liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions of credit or
other assets which includes loans by a non-United States office of any Bank to
United States residents). The Adjusted London Interbank Offered Rate shall be
adjusted automatically on and as of the effective date of any change in the
Euro-Dollar Reserve Percentage.
(d) The Agent shall determine each interest rate applicable to the Loans
hereunder. The Agent shall give prompt notice to the Borrower and the Banks
by telecopier of each rate of interest so determined, and its determination
thereof shall be conclusive in the absence of manifest error.
(e) After the occurrence and during the continuance of a Default, the
principal amount of the Loans (and, to the extent permitted by applicable law,
all accrued interest thereon) may, after the election of the Required Banks
and notice thereof has been given to the Borrower, bear interest at the
Default Rate.
SECTION 2.07. Fees. (a) The Borrower shall pay to the Agent, for the ratable
account of each Bank, a commitment fee,
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calculated on the average daily amount
of such Bank's Unused Commitment, at the rate of 0.20% per annum. Such
commitment fees shall accrue from and including the Closing Date to but
excluding the Termination Date and shall be payable in arrears on each March
31, June 30, September 30 and December 31 and on the Termination Date.
(b)
The Borrower shall pay to the Agent, for the account and sole benefit of the
Agent, such fees and other amounts at such times as may be mutually agreed to
by the Borrower and the Agent from time to time.
SECTION 2.08. Optional Termination or Reduction of Commitments. The Borrower
may, upon at least 3 Domestic Business Days' notice to the Agent, terminate at
any time, or proportionately reduce the Unused Revolver Loan Commitments or
the Unused Term Loan Commitments from time to time by an aggregate amount of
at least $1,000,000 or any larger multiple of $500,000. If the Commitments
are terminated in their entirety, all accrued fees (as provided under Section
2.07) shall be due and payable on the effective date of such termination.
SECTION 2.09. Mandatory Reduction and Termination of Commitments. (a) The
Revolver Loan Commitments shall terminate on the Termination Date and any
Revolver Loans then outstanding (together with accrued interest thereon) shall
be due and payable on such date. The Term Loan Commitments shall terminate on
the Amortization Date.
SECTION 2.10. Optional Prepayments. (a) The Borrower may, upon at least 1
Domestic Business Days' notice to the Agent, prepay any Base Rate Borrowing in
whole at any time, or from time to time in part in amounts aggregating at
least $150,000 or any larger multiple of $50,000, by paying the principal
amount to be prepaid together with accrued interest thereon to the date of
prepayment. Each such optional prepayment shall be applied to prepay ratably
the Base Rate Loans of the several Banks included in such Base Rate Borrowing.
(b)
Except as provided in Section 8.02, the Borrower may not prepay all or any
portion of the principal amount of any Euro-Dollar Loan prior to the maturity
thereof.
(c)
Upon receipt of a notice of prepayment pursuant to this Section 2.10, the
Agent shall promptly notify each Bank of the contents thereof and of such
Bank's ratable share of such prepayment and such notice, once received by the
Agent, shall not thereafter be revocable by the Borrower.
SECTION 2.11. Mandatory Prepayments. On each date on which the Revolver Loan
Commitments are reduced pursuant to Section 2.08 or Section 2.09, the Borrower
shall repay or prepay such principal amount of the outstanding Revolver Loans,
if any (together with interest accrued thereon), as may be necessary so
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that
after such payment the aggregate unpaid principal amount of the Revolver Loans
does not exceed the aggregate amount of the Commitments as then reduced. Each
such payment or prepayment shall be applied ratably to the Loans of the Banks
outstanding on the date of payment or prepayment in the following order of
priority: (i) first, to Base Rate Loans; and (ii) secondly, to Euro-Dollar
Loans.
SECTION 2.12. General Provisions as to Payments. (a) The Borrower shall make
each payment of principal of, and interest on, the Loans and of fees
hereunder, not later than 11:00 A.M. (Atlanta, Georgia time) on the date when
due, in Federal or other funds immediately available in Atlanta, Georgia, to
the Agent at its address referred to in Section 9.01. The Agent will promptly
distribute to each Bank its ratable share of each such payment received by the
Agent for the account of the Banks.
(b) Whenever any payment of principal of, or interest on, the Base Rate Loans
or of fees hereunder shall be due on a day which is not a Domestic Business
Day, the date for payment thereof shall be extended to the next succeeding
Domestic Business Day. Whenever any payment of principal of or interest on,
the Euro-Dollar Loans shall be due on a day which is not a Euro-Dollar
Business Day, the date for payment thereof shall be extended to the next
succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day falls
in another calendar month, in which case the date for payment thereof shall be
the next preceding Euro-Dollar Business Day.
(c)
All payments of principal, interest and fees and all other amounts to be made
by the Borrower pursuant to this Agreement with respect to any Loan or fee
relating thereto shall be paid without deduction for, and free from, any tax,
imposts, levies, duties, deductions, or withholdings of any nature now or at
anytime hereafter imposed by any governmental authority or by any taxing
authority thereof or therein excluding in the case of each Bank, taxes imposed
on or measured by its net income, and franchise taxes imposed on it, by the
jurisdiction under the laws of which such Bank (as the case may be) is
organized or any political subdivision thereof and, in the case of each Bank,
taxes imposed on its income, and franchise taxes imposed on it, by the
jurisdiction of such Bank's applicable Lending Office or any political
subdivision thereof (all such non-excluded taxes, imposts, levies, duties,
deductions or withholdings of any nature being "Taxes"). In the event that
the Borrower is required by applicable law to make any such withholding or
deduction of Taxes with respect to any Loan or fee or other amount, the
Borrower shall pay such deduction or withholding to the applicable taxing
authority, shall promptly furnish to any Bank in respect of which such
deduction or withholding is made all receipts and other documents evidencing
such payment and shall pay to such Bank additional amounts as may be necessary
in order that the amount received by such Bank after the required withholding
or other
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payment shall equal the amount such Bank would have received had no
such withholding or other payment been made. If no withholding or deduction
of Taxes are payable in respect to any Loan or fee relating thereto, the
Borrower shall furnish any Bank, at such Bank's reasonable request, a
certificate from each applicable taxing authority or an opinion of counsel
acceptable to such Bank, in either case stating that such payments are exempt
from or not subject to withholding or deduction of Taxes. If the Borrower
fails to provide such original or certified copy of a receipt evidencing
payment of Taxes or certificate(s) or opinion of counsel of exemption, the
Borrower hereby agrees to compensate such Bank for, and indemnify them with
respect to, the tax consequences of the Borrower's failure to provide evidence
of tax payments or tax exemption.
Each Bank which is not organized under the laws of the United States or any
state thereof agrees, as soon as practicable after receipt by it of a request
by the Borrower to do so, to file all appropriate forms and take other
appropriate action to obtain a certificate or other appropriate document from
the appropriate governmental authority in the jurisdiction imposing the
relevant Taxes, establishing that it is entitled to receive payments of
principal and interest under this Agreement and the Notes without deduction
and free from withholding of any Taxes imposed by such jurisdiction; provided
that if it is unable, for any reason, to establish such exemption, or to file
such forms and, in any event, during such period of time as such request for
exemption is pending, the Borrower shall nonetheless remain obligated under
the terms of the immediately preceding paragraph.
In the event any Bank receives a refund of any Taxes paid by the Borrower
pursuant to this Section 2.12(c), it will pay to the Borrower the amount of
such refund promptly upon receipt thereof; provided that if at any time
thereafter it is required to return such refund, the Borrower shall promptly
repay to it the amount of such refund.
Without prejudice to the survival of any other agreement of the Borrower
hereunder, the agreements and obligations of the Borrower and the Banks
contained in this Section 2.12(c) shall be applicable with respect to any
Participant, Assignee or other Transferee, and any calculations required by
such provisions (i) shall be made based upon the circumstances of such
Participant, Assignee or other Transferee, and (ii) constitute a continuing
agreement and shall survive the termination of this Agreement and the payment
in full or cancellation of the Notes.
SECTION 2.13. Computation of Interest and Fees. Interest on Base Rate Loans
shall be computed on the basis of a year of 360 days and paid for the actual
number of days elapsed (including the first day but excluding the last day).
Interest
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on Euro-Dollar Loans shall be computed on the basis of a year of 360
days and paid for the actual number of days elapsed, calculated as to each
Interest Period from and including the first day thereof to but excluding the
last day thereof. Commitment fees and any other fees payable hereunder shall
be computed on the basis of a year of 360 days and paid for the actual number
of days elapsed (including the first day but excluding the last day).
ARTICLE III
CONDITIONS TO BORROWINGS
SECTION 3.01. Conditions to First Borrowing. The obligation of each Bank to
make a Loan on the occasion of the first Borrowing is subject to the
satisfaction of the conditions set forth in Section 3.02 and receipt by the
Agent of the following (as to the documents described in paragraphs (a),(c),
(d)and (e) below, in sufficient number of counterparts for delivery of a
counterpart to each Bank and retention of one counterpart by the Agent):
(a)
from each of the parties hereto of either (i) a duly executed counterpart of
this Agreement signed by such party or (ii) a facsimile transmission stating
that such party has duly executed a counterpart of this Agreement and sent
such counterpart to the Agent;
(b)
a duly executed Revolver Loan Note and a duly executed Term Loan Note for the
account of each Bank complying with the provisions of Section 2.04;
(c)
an opinion letter (together with any opinions of local counsel relied on
therein) of Smith Helms Mulliss & Moore, L.L.P., counsel for the Borrower and
the Guarantors, dated as of the Closing Date, substantially in the form of
Exhibit B and covering such additional matters relating to the transactions
contemplated hereby as the Agent or any Bank may reasonably request;
(d)
an opinion of Jones, Day, Reavis & Pogue, special counsel for the Agent, dated
as of the Closing Date, substantially in the form of Exhibit C and covering
such additional matters relating to the transactions contemplated hereby as
the Agent may reasonably request;
(e)
a certificate (the "Closing Certificate") substantially in the form of Exhibit
G), dated as of the Closing Date, signed by a principal financial officer of
the Borrower, to the effect that (i) no Default has occurred and is continuing
on the date of the first Borrowing and (ii) the representations and warranties
of the Borrower contained
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in Article IV are true on and as of the date of the first Borrowing hereunder;
(f)
all documents which the Agent or any Bank may reasonably request relating to
the existence of the Borrower and each Guarantor, the corporate authority for
and the validity of this Agreement, the Notes, the Guaranty and the
Contribution Agreement, and any other matters relevant hereto, all in form and
substance satisfactory to the Agent, including, without limitation, a
certificate of incumbency of the Borrower and each Guarantor, signed by the
Secretary or an Assistant Secretary of the Borrower and each Guarantor,
certifying as to the names, true signatures and incumbency of the officer or
officers of the Borrower or such Guarantor authorized to execute and deliver
the Loan Documents, or the Guaranty and the Contribution Agreement, as
applicable, and certified copies of the following items: (i) the Borrower's
and each Guarantor's Certificate of Incorporation, (ii) the Borrower's and
each Guarantor's Bylaws, (iii) certificates of the Secretary of State for the
State of organization and existence of the Borrower and each Guarantor as to
the good standing of the Borrower and each Guarantor (iv) the action taken by
the Board of Directors of the Borrower and each Guarantor authorizing the
Borrower's and each Guarantor's execution, delivery and performance of this
Agreement, the Notes and the other Loan Documents to which the Borrower is a
party, and of the Guaranty and the Contribution Agreement by the Guarantors;
and
(g) the Guaranty and the Contribution Agreement, each duly executed by each
of the Guarantors.
In addition, if the Borrower desires funding of a Euro-Dollar Loan on the
Closing Date, the Agent shall have received, the requisite number of days
prior to the Closing Date, a Funding Indemnification Letter.
SECTION 3.02. Conditions to All Borrowings. The obligation of each Bank to
make a Loan on the occasion of each Borrowing is subject to the satisfaction
of the following conditions except as expressly provided in the last sentence
of this Section 3.02:
(a)
receipt by the Agent of a Notice of Borrowing;
(b)
the fact that, immediately before and after such Borrowing, no Default shall
have occurred and be continuing;
(c)
the fact that the representations and warranties of the Borrower contained in
Article IV of this Agreement shall be true on and as of the date of such
Borrowing; and
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(d)
the fact that, immediately after such Borrowing, the conditions set forth in
clauses (i) and (ii) of Section 2.01 shall have been satisfied.
Each Borrowing (both Revolver Loan and Term Loan) hereunder shall be deemed to
be a representation and warranty by the Borrower on the date of such Borrowing
as to the truth and accuracy of the facts specified in paragraphs (b), (c) and
(d) of this Section.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 4.01. Corporate Existence and Power. The Borrower is a corporation
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, is duly qualified to transact business in
every jurisdiction where, by the nature of its business, such qualification is
necessary and except where the failure to so qualify would not have and is not
reasonably expected to cause a Material Adverse Effect, and has all corporate
powers and all governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted.
SECTION 4.02. Corporate and Governmental Authorization; No Contravention. The
execution, delivery and performance by the Borrower of this Agreement, the
Notes and the other Loan Documents (i) are within the Borrower's corporate
powers, (ii) have been duly authorized by all necessary corporate action,
(iii) require no action by or in respect of or filing with, any governmental
body, agency or official (other than filings under applicable securities laws
reporting the closing of the Loans hereunder), (iv) do not contravene, or
constitute a default under, any provision of applicable law or regulation or
of the certificate of incorporation or by-laws of the Borrower or of any
agreement, judgment, injunction, order, decree or other instrument binding
upon the Borrower or any of its Subsidiaries, the violation of which would
have and or would reasonably be expected to cause a Material Adverse Effect,
and (v) do not result in the creation or imposition of any Lien on any asset
of the Borrower or any of its Subsidiaries.
SECTION 4.03. Binding Effect. This Agreement constitutes a valid and binding
agreement of the Borrower enforceable against the Borrower in accordance with
its terms, and the Notes and the other Loan Documents, when executed and
delivered in accordance with this Agreement, will constitute valid and binding
obligations of the Borrower enforceable against the Borrower in accordance
with their respective terms, provided that the enforceability hereof and
thereof is subject in each case to general principles of equity and to
bankruptcy,
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insolvency and similar laws affecting the enforcement of
creditors' rights generally.
SECTION 4.04. Financial Information. (a) The consolidated balance sheet of
the Borrower and its Consolidated Subsidiaries as of December 31, 1994 and the
related consolidated statements of income, shareholders' equity and cash flows
for the Fiscal Year then ended, reported on by Ernst & Young, LLP, copies of
which have been delivered to each of the Banks, and the unaudited consolidated
financial statements of the Borrower for the interim period ended March 31,
1995, copies of which have been delivered to each of the Banks, fairly
present, in conformity with GAAP (subject to any year-end adjustments in
accordance with GAAP), the consolidated financial position of the Borrower and
its Consolidated Subsidiaries as of such dates and their consolidated results
of operations and cash flows for such periods stated.
(b)
Since December 31, 1994, there has been no event, act, condition or occurrence
having a Material Adverse Effect.
SECTION 4.05. No Litigation. There is no action, suit or proceeding pending,
or to the knowledge of the Borrower threatened, against or affecting the
Borrower or any of its Subsidiaries before any court or arbitrator or any
governmental body, agency or official which could have a Material Adverse
Effect or which in any manner draws into question the validity of or could
impair the ability of the Borrower to perform its obligations under, this
Agreement, the Notes or any of the other Loan Documents.
SECTION 4.06. Compliance with ERISA. (a) The Borrower and each member of the
Controlled Group have fulfilled their obligations under the minimum funding
standards of ERISA and the Code with respect to each Plan and are in
compliance in all material respects with the presently applicable provisions
of ERISA and the Code, and have not incurred any material liability to the
PBGC or a Plan under Title IV of ERISA.
(b)
Neither the Borrower nor any member of the Controlled Group is or ever has
been obligated to contribute to any Multiemployer Plan.
SECTION 4.07. Compliance with Laws; Payment of Taxes. The Borrower and its
Subsidiaries are in compliance with all applicable laws, regulations and
similar requirements of governmental authorities, except where such compliance
is being contested in good faith through appropriate proceedings or the
failure of which would not have and is not reasonably expected to cause a
Material Adverse Effect. There have been filed on behalf of the Borrower and
its Subsidiaries all Federal, state and local income, excise, property and
other tax returns which are required to be filed by them (including extensions
of the time of filing thereof) and all taxes due pursuant to such returns or
pursuant
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to any assessment received by or on behalf of the Borrower or any
Subsidiary have been paid. The charges, accruals and reserves on the books of
the Borrower and its Subsidiaries in respect of taxes or other governmental
charges are, in the opinion of the Borrower, adequate. United States income
tax returns of the Borrower and its Subsidiaries have been examined and closed
through the Fiscal Year ended December 31, 1991.
SECTION 4.08. Subsidiaries. Each of the Borrower's Subsidiaries is a
corporation duly organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation, is duly qualified to transact
business in every jurisdiction where, by the nature of its business, such
qualification is necessary, and has all corporate powers and all governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted, except where the failure to so qualify would not
have and is not reasonably expected to cause a Material Adverse Effect. The
Borrower has no Subsidiaries except for those Subsidiaries listed on Schedule
4.08, which accurately sets forth each such Subsidiary's complete name and
jurisdiction of incorporation.
SECTION 4.09. Investment Company Act. Neither the Borrower nor any of its
Subsidiaries is an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
SECTION 4.10. Public Utility Holding Company Act. Neither the Borrower nor
any of its Subsidiaries is a "holding company", or a "subsidiary company" of a
"holding company", or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company", as such terms are defined in the
Public Utility Holding Company Act of 1935, as amended.
SECTION 4.11. Ownership of Property; Liens. Each of the Borrower and its
Consolidated Subsidiaries has title to its properties sufficient for the
conduct of its business, and none of such property is subject to any Lien
except as permitted in Section 5.18.
SECTION 4.12. No Default. Neither the Borrower nor any of its Consolidated
Subsidiaries is in default under or with respect to any agreement, instrument
or undertaking to which it is a party or by which it or any of its property is
bound which could have or cause a Material Adverse Effect. No Default or
Event of Default has occurred and is continuing.
SECTION 4.13. Full Disclosure. All information heretofore furnished by the
Borrower to the Agent or any Bank for purposes of or in connection with this
Agreement or any transaction contemplated hereby is, and all such information
hereafter furnished by the Borrower to the Agent or any Bank will be, true,
accurate and complete in every material respect or based on reasonable
estimates on the date as of which such
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information is stated or certified.
The Borrower has disclosed to the Banks in writing any and all facts which
could have or cause a Material Adverse Effect.
SECTION 4.14. Environmental Matters. (a) Neither the Borrower nor any
Subsidiary is subject to any Environmental Liability which could have or cause
a Material Adverse Effect and neither the Borrower nor any Subsidiary has been
designated as a potentially responsible party under CERCLA or under any state
statute similar to CERCLA. None of the Properties has been identified on any
current or proposed (i) National Priorities List under 40 C.F.R. 300, (ii)
CERCLIS list or (iii) any list arising from a state statute similar to CERCLA.
(b)
No Hazardous Materials have been or are being used, produced, manufactured,
processed, treated, recycled, generated, stored, disposed of, managed or
otherwise handled at, or shipped or transported to or from the Properties by
the Borrower or are otherwise present at, on, in or under the Properties, or,
to the best of the knowledge of the Borrower, at or from any adjacent site or
facility, except for Hazardous Materials, such as cleaning solvents,
pesticides and other materials used, produced, manufactured, processed,
treated, recycled, generated, stored, disposed of, managed, or otherwise
handled in the ordinary course of business in compliance in all material
respects with all applicable Environmental Requirements.
(c)
The Borrower, and each of its Subsidiaries and Affiliates, has procured all
Environmental Authorizations necessary for the conduct of its business in all
material respects, and is in compliance in all material respects with all
Environmental Requirements in connection with the operation of the Properties
and the Borrower's, and each of its Subsidiary's and Affiliate's, respective
businesses.
SECTION 4.15. Capital Stock. All Capital Stock, debentures, bonds, notes and
all other securities of the Borrower and its Subsidiaries presently issued and
outstanding are validly and properly issued in accordance with all applicable
laws, including, but not limited to, the "Blue Sky" laws of all applicable
states and the federal securities laws, in all material respects. The issued
shares of Capital Stock of the Borrower's Wholly Owned Subsidiaries are owned
by the Borrower free and clear of any Lien or adverse claim. At least a
majority of the issued shares of capital stock of each of the Borrower's other
Subsidiaries (other than Wholly Owned Subsidiaries) is owned by the Borrower
free and clear of any Lien or adverse claim.
SECTION 4.16. Margin Stock. Neither the Borrower nor any of its Subsidiaries
is engaged principally, or as one of its important activities, in the business
of purchasing or carrying any Margin Stock, and no part of the proceeds of any
Loan will be used to purchase or carry any Margin Stock or to extend credit to
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others for the purpose of purchasing or carrying any Margin Stock, or be used
for any purpose which violates, or which is inconsistent with, the provisions
of Regulation X.
SECTION 4.17. Insolvency. After giving effect to the execution and delivery
of the Loan Documents and the making of the Loans under this Agreement: (i)
the Borrower will not (x) be "insolvent," within the meaning of such term as
used in or as defined in 101 of the "Bankruptcy Code", or Section 2 of
either the "UFTA" or the "UFCA", or as defined or used in any "Other
Applicable Law" (as those terms are defined below), or (y) be unable to pay
its debts generally as such debts become due within the meaning of Section 548
of the Bankruptcy Code, Section 4 of the UFTA or Section 6 of the UFCA, or (z)
have an unreasonably small capital to engage in any business or transaction,
whether current or contemplated, within the meaning of Section 548 of the
Bankruptcy Code, Section 4 of the UFTA or Section 5 of the UFCA; and (ii) to
the Borrower's knowledge, the obligations of the Borrower under the Loan
Documents and with respect to the Loans will not be rendered avoidable under
any Other Applicable Law. For purposes of this Section 4.17, "Bankruptcy Code"
means Title 11 of the United States Code, "UFTA" means the Uniform Fraudulent
Transfer Act, "UFCA" means the Uniform Fraudulent Conveyance Act, and "Other
Applicable Law" means any other applicable state law pertaining to fraudulent
transfers or acts voidable by creditors, in each case as such law may be
amended from time to time.
SECTION 4.18. Insurance. The Borrower and each of its Subsidiaries has
(either in the name of the Borrower or in such Subsidiary's own name), with,
to the Borrower's knowledge, financially sound and reputable insurance
companies, insurance on all its property in at least such amounts and against
at least such risks as are usually insured against in the same general area by
companies of comparable financial worth engaged in the same or similar
business.
ARTICLE V
COVENANTS
The Borrower agrees that, so long as any Bank has any Commitment hereunder or
any amount payable hereunder or under any Note remains unpaid:
SECTION 5.01. Information. The Borrower will deliver to each of the Banks:
(a)
as soon as available and in any event within 90 days after the end of each
Fiscal Year, a consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as of the end of such Fiscal Year and the related consolidated
statements of income, shareholders' equity and cash flows for such Fiscal
Year, setting forth in
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each case in comparative form the figures for the
previous fiscal year, all certified by Ernst & Young, LLP or other independent
public accountants of nationally recognized standing, with such certification
to be free of exceptions and qualifications not acceptable to the Required
Banks;
(b)
as soon as available and in any event within 45 days after the end of each of
the first 3 Fiscal Quarters of each Fiscal Year, a consolidated balance sheet
of the Borrower and its Consolidated Subsidiaries as of the end of such Fiscal
Quarter and the related statement of income and statement of cash flows for
such Fiscal Quarter and for the portion of the Fiscal Year ended at the end of
such Fiscal Quarter, setting forth in each case in comparative form the
figures for the corresponding Fiscal Quarter and the corresponding portion of
the previous Fiscal Year, all certified (subject to normal year-end
adjustments) as to fairness of presentation, GAAP and consistency by the chief
financial officer or the chief accounting officer of the Borrower;
(c)
simultaneously with the delivery of each set of financial statements referred
to in paragraphs (a) and (b) above, a certificate, substantially in the form
of Exhibit F (a "Compliance Certificate"), of the chief financial officer or
the chief accounting officer of the Borrower (i) setting forth in reasonable
detail the calculations required to establish whether the Borrower was in
compliance with the requirements of Sections 5.16 and 5.18 through 5.22,
inclusive, on the date of such financial statements and (ii) stating whether
any Default exists on the date of such certificate and, if any Default then
exists, setting forth the details thereof and the action which the Borrower is
taking or proposes to take with respect thereto;
(d)
simultaneously with the delivery of each set of annual financial statements
referred to in paragraph (a) above, a statement of the firm of independent
public accountants which reported on such statements to the effect that
nothing has come to their attention to cause them to believe that any Default
under the Borrower's financial covenants (as set forth in Sections 5.19
through and including 5.22, or in other Sections from time to time), existed
on the date of such financial statements;
(e)
within 5 Domestic Business Days after the Borrower becomes aware of the
occurrence of any Default, a certificate of the chief financial officer or the
chief accounting officer of the Borrower setting forth the details thereof and
the action which the Borrower is taking or proposes to take with respect
thereto;
(f)
promptly upon the mailing thereof to the shareholders of the Borrower
generally, copies of all
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financial statements, reports and proxy statements so
mailed;
(g)
promptly upon the filing thereof, copies of all registration statements (other
than the exhibits thereto and any registration statements on Form S-8 or its
equivalent) and annual, quarterly or monthly reports which the Borrower shall
have filed with the Securities and Exchange Commission;
(h)
if and when any member of the Controlled Group (i) gives or is required to
give notice to the PBGC of any "reportable event" (as defined in Section 4043
of ERISA) with respect to any Plan which might constitute grounds for a
termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or
required to be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA, a copy of such notice; or (iii)
receives notice from the PBGC under Title IV of ERISA of an intent to
terminate or appoint a trustee to administer any Plan, a copy of such notice;
and
(i)
from time to time such additional information regarding the financial position
or business of the Borrower and its Subsidiaries as the Agent, at the request
of any Bank, may reasonably request.
SECTION 5.02. Inspection of Property, Books and Records. The Borrower will
(i) keep, and cause each Subsidiary to keep, proper books of record and
account in which full, true and correct entries in conformity with GAAP shall
be made of all dealings and transactions in relation to its business and
activities; and (ii) permit, and cause each Subsidiary to permit,
representatives of any Bank at such Bank's expense prior to the occurrence of
a Default and at the Borrower's expense after the occurrence of a Default to
visit and inspect any of their respective properties, to examine and make
abstracts from any of their respective books and records and to discuss their
respective affairs, finances and accounts with their respective officers,
employees and independent public accountants. The Borrower agrees to
cooperate and assist in such visits and inspections, in each case at such
reasonable times and as often as may reasonably be desired.
SECTION 5.03. Maintenance of Existence. The Borrower shall, and shall cause
each Subsidiary to, maintain its corporate existence and carry on its business
in substantially the same manner and in substantially the same fields as such
business is now carried on and maintained, except as otherwise permitted in
Section 5.05 and except for the dissolution and liquidation of Trion GMBH.
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SECTION 5.04. Dissolution. Neither the Borrower nor any of its Subsidiaries
shall suffer or permit dissolution or liquidation either in whole or in part
or redeem or retire any shares of its own stock or that of any Subsidiary,
except (i) through corporate reorganization to the extent permitted by Section
5.05, (ii) for the redemption by Trion Limited of Trion Limited capital stock
owned by the Borrower, and (iii) except for the dissolution and liquidation of
Trion GMBH.
SECTION 5.05. Consolidations, Mergers and Sales of Assets. The Borrower will
not, nor will it permit any Subsidiary to, consolidate or merge with or into,
or sell, lease or otherwise transfer all or any substantial part of its assets
to, any other Person, or discontinue or eliminate any business line or
segment, provided that (a) the Borrower may merge with another Person if (i)
such Person was organized under the laws of the United States of America or
one of its states, (ii) the Borrower is the corporation surviving such merger
and (iii) immediately after giving effect to such merger, no Default shall
have occurred and be continuing, (b) Subsidiaries of the Borrower may merge
with one another, and (c) the foregoing limitation on the sale, lease or other
transfer of assets and on the discontinuation or elimination of a business
line or segment shall not prohibit, during any Fiscal Quarter, a transfer of
assets or the discontinuance or elimination of a business line or segment (in
a single transaction or in a series of related transactions) unless the
aggregate assets to be so transferred or utilized in a business line or
segment to be so discontinued, when combined with all other assets
transferred, and all other assets utilized in all other business lines or
segments discontinued, during such Fiscal Quarter and the immediately
preceding 3 Fiscal Quarters, either (x) constituted more than 10% of
Consolidated Total Assets at the end of the fourth Fiscal Quarter immediately
preceding such Fiscal Quarter, or (y) contributed more than 10% of
Consolidated Operating Profits during the 8 Fiscal Quarters immediately
preceding such Fiscal Quarter. Notwithstanding the foregoing, in no event
shall any disposition of assets permitted in this Section 5.05 be permitted in
the event that after such disposition (A) Consolidated Total Assets shall be
less than $21,401,100 (which amount equals 90% of Consolidated Total Assets
for the Fiscal Year ending December 31, 1994), or (B) assets not so disposed
of shall have contributed less than $2,665,800 (which amount equals 90% of
Consolidated Operating Profits for the Fiscal Year ending December 31, 1994).
SECTION 5.06. Use of Proceeds. No portion of the proceeds of the Loans will
be used by the Borrower or any Subsidiary (i) in connection with, whether
directly
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or indirectly, any tender offer for, or other acquisition of, stock
of any corporation with a view towards obtaining control of such other
corporation, unless such tender offer or other acquisition is to be made on a
negotiated basis with the approval of the Board of Directors of the Person to
be acquired, and the provisions of Section 5.17 would not be violated, (ii)
directly or indirectly, for the purpose, whether immediate, incidental or
ultimate, of purchasing or carrying any Margin Stock, or (iii) for any purpose
in violation of any applicable law or regulation.
Subject to the foregoing, the Proceeds of the Revolver Loans may be used for
working capital and general corporate purposes, including the making of
Permitted Acquisitions, and the proceeds of the Term Loan Advances may be used
for retiring Debt incurred in the acquisition of Envirco Corporation and any
other Permitted Acquisition.
SECTION 5.07. Compliance with Laws; Payment of Taxes. The Borrower will, and
will cause each of its Subsidiaries and each member of the Controlled Group
to, comply with applicable laws (including but not limited to ERISA),
regulations and similar requirements of governmental authorities (including
but not limited to PBGC), except where the necessity of such compliance is
being contested in good faith through appropriate proceedings and except where
the failure to so comply would not have and is not reasonably expected to
cause a Material Adverse Effect. The Borrower will, and will cause each of
its Subsidiaries to, pay promptly when due all taxes, assessments,
governmental charges, claims for labor, supplies, rent and other obligations
which, if unpaid, might become a lien against the property of the Borrower or
any Subsidiary, except liabilities being contested in good faith and against
which, if requested by the Agent, the Borrower will set up reserves in
accordance with GAAP.
SECTION 5.08. Insurance. The Borrower will maintain, and will cause each of
its Subsidiaries to maintain (either in the name of the Borrower or in such
Subsidiary's own name), with, to the best of the Borrower's knowledge,
financially sound and reputable insurance companies, insurance on all its
property in at least such amounts and against at least such risks as are
usually insured against in the same general area by companies of comparable
financial worth engaged in the same or similar business.
SECTION 5.09. Change in Fiscal Year. The Borrower will not change its Fiscal
Year without the consent of the Required Banks.
SECTION 5.10. Maintenance of Property. The Borrower shall, and shall cause
each Subsidiary to, maintain all of its properties and assets used in its
business in good condition, repair and working order, ordinary wear and tear
excepted.
SECTION 5.11. Environmental Notices. The Borrower shall furnish to the Banks
and the Agent prompt written notice of all material Environmental Liabilities,
and all pending, threatened or anticipated Environmental Proceedings,
Environmental Notices, Environmental Judgments and Orders, and Environmental
Releases at, on, in, under or in any way affecting
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the Properties or any
adjacent property, and all facts, events, or conditions that could lead to any
of the foregoing.
SECTION 5.12. Environmental Matters. The Borrower and its Subsidiaries will
not, and will not permit any Third Party to, use, produce, manufacture,
process, treat, recycle, generate, store, dispose of, manage at, or otherwise
handle, or ship or transport to or from the Properties any Hazardous Materials
except for Hazardous Materials such as cleaning solvents, pesticides and other
similar materials used, produced, manufactured, processed, treated, recycled,
generated, stored, disposed, managed, or otherwise handled in the ordinary
course of business in compliance in all material respects with all applicable
Environmental Requirements.
SECTION 5.13. Environmental Release. The Borrower agrees that upon the
occurrence of an Environmental Release at or on any of the Properties it will
act immediately to investigate the extent of, and to take appropriate remedial
action to eliminate, such Environmental Release, whether or not ordered or
otherwise directed to do so by any Environmental Authority; provided the
foregoing shall not require the Borrower to take any action not required by
applicable law unless such action would be reasonably prudent to avoid
liability to third parties other than any Environmental Authority.
SECTION 5.14. Transactions with Affiliates. Neither the Borrower nor any of
its Subsidiaries shall enter into, or be a party to, any transaction with any
Affiliate of the Borrower or such Subsidiary (which Affiliate is not the
Borrower or a Wholly Owned Subsidiary), except as permitted by law and in the
ordinary course of business and pursuant to reasonable terms and are no less
favorable to Borrower or such Subsidiary than would be obtained in a
comparable arm's length transaction with a Person which is not an Affiliate.
SECTION 5.15. Additional Debt. Neither the Borrower nor any of its
Subsidiaries shall incur or permit to exist any Debt not in existence on the
Closing Date, and extensions or renewals thereof, other than (i) Debt
permitted to be secured by Liens permitted by Section 5.18, (ii) Debt of the
types described in clause (vii) of the definition of Debt which is incurred in
the ordinary course of business in connection with the sale or purchase of
goods or to assure performance of any obligation to a utility or a
governmental entity or a worker's compensation obligation; (iii) Debt
permitted by Section 5.16; and (iv) Debt under this Agreement.
SECTION 5.16. Loans or Advances. Neither the Borrower nor any of its
Subsidiaries shall make loans or advances to any Person except as permitted by
Section 5.17 and except: (i) loans or advances to employees not exceeding
$100,000 in the aggregate principal amount outstanding at any time, in each
case made in the ordinary course of business and consistent with practices
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existing on March 31, 1995; (ii) deposits required by government agencies or
public utilities; (iii) loans or advances from the Borrower to any Guarantor
or from any Guarantor to any other Guarantor; (iv) accounts receivable
outstanding in the ordinary course of business owed to the Borrower for the
sale of its inventory, and (v) solely after compliance with Section 5.24 with
respect to each Foreign Significant Subsidiary to which loans or advances
shall be made, loans or advances from the Borrower to Foreign Significant
Subsidiaries in the aggregate outstanding at any time not exceeding 10% of the
Borrower's Consolidated Net Worth; provided that after giving effect to the
making of any loans, advances or deposits permitted by this Section, the
Borrower will be in full compliance with all the provisions of this Agreement.
SECTION 5.17. Investments. Neither the Borrower nor any of its Subsidiaries
shall make Investments in any Person except as permitted by Section 5.16 and
except Investments in (i) direct obligations of the United States Government
maturing within one year, (ii) certificates of deposit issued by a commercial
bank whose credit is satisfactory to the Agent, (iii) commercial paper rated
A1 or the equivalent thereof by Standard & Poor's Corporation or P1 or the
equivalent thereof by Moody's Investors Service, Inc. and in either case
maturing within 6 months after the date of acquisition, (iv) tender bonds the
payment of the principal of and interest on which is fully supported by a
letter of credit issued by a United States bank whose long-term certificates
of deposit are rated at least AA or the equivalent thereof by Standard &
Poor's Corporation and Aa or the equivalent thereof by Moody's Investors
Service, Inc. and\or (v) the acquisition of Envirco Corporation, and other
acquisitions of stock of entities which are in, or assets used for, lines of
business which are related or similar to the lines of business of the Borrower
or any of its Subsidiaries.
SECTION 5.18. Negative Pledge. Neither the Borrower nor any Consolidated
Subsidiary will create, assume or suffer to exist any Lien on any asset now
owned or hereafter acquired by it, except:
(a)
Liens existing on the date of this Agreement securing Debt outstanding on the
date of this Agreement in an aggregate principal amount not exceeding
$3,500,000;
(b)
any Lien existing on any asset of any corporation at the time such corporation
becomes a Consolidated Subsidiary and not created in contemplation of such
event;
(c)
any Lien on any asset of any corporation existing at the time such corporation
is merged or consolidated with or into the Borrower or a Consolidated
Subsidiary and not created in contemplation of such event;
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(d)
any Lien existing on any asset prior to the acquisition thereof by the
Borrower or a Consolidated Subsidiary and not created in contemplation of such
acquisition;
(e)
Liens securing Debt owing by any Subsidiary to the Borrower;
(f)
any Lien arising out of the refinancing, extension, renewal or refunding of
any Debt secured by any Lien permitted by any of the foregoing paragraphs of
this Section, provided that (i) such Debt is not secured by any additional
assets, and (ii) the amount of such Debt secured by any such Lien is not
increased;
(g)
Liens incidental to the conduct of its business or the ownership of its assets
which do not in the aggregate materially detract from the value of its assets
or materially impair the use thereof in the operation of its business; and
(h)
any Lien on Margin Stock;
Provided Liens permitted by the foregoing paragraphs (b), (c), (d) and (g)
shall at no time secure Debt in an aggregate amount greater than 10% of
Consolidated Net Worth.
SECTION 5.19. Fixed Charges Coverage. At the end of each Fiscal Quarter,
commencing with the Fiscal Quarter ending September 30, 1995, the ratio of
EBILT to Consolidated Fixed Charges for the Fiscal Quarter just ended and the
immediately preceding 3 Fiscal Quarters shall be greater than 3.5 to 1.0.
SECTION 5.20. Ratio of Consolidated Funded Debt to Consolidated Total Capital.
The ratio of Consolidated Funded Debt to Consolidated Total Capital will not
at any time exceed 0.50 to 1.00.
SECTION 5.21. Ratio of Consolidated Funded Debt to Consolidated Cash Flow.
The ratio of Consolidated Funded Debt to Consolidated Cash Flow will not at
any time exceed 4.0 to 1.00.
SECTION 5.22. Minimum Consolidated Net Worth. Consolidated Net Worth will at
no time be less than $17,000,000 plus the sum of (i) 50% of the cumulative
Consolidated Net Income of the Borrower and its Consolidated Subsidiaries
during any period after September 30, 1995 (taken as one accounting period),
calculated quarterly at the end of each Fiscal Quarter but excluding from such
calculations of Consolidated Net Income for purposes of this clause (i), any
quarter in which the Consolidated Net Income of the Borrower and its
Consolidated Subsidiaries is negative, plus (ii) 100% of the cumulative
proceeds of from the sale of any Capital Stock received during any period
after the Closing Date, plus (iii) 100% of the amount
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of any Capital Stock
issued in exchange for the cancellation or conversion of Debt after the
Closing Date, calculated quarterly at the end of each Fiscal Quarter.
SECTION 5.23. Domestic Significant Subsidiaries to Become Guarantors; Release
of Guarantors to be Sold. (a) In the event any Subsidiary (whether existing on
the Closing Date or acquired or created thereafter) is or becomes a Domestic
Significant Subsidiary, then (i) within 10 Domestic Business Days after the
Borrower becomes aware that it is a Domestic Significant Subsidiary, it must
so notify the Agent, and (ii) within 10 Domestic Business Days after giving
such notice, such Domestic Significant Subsidiary must become a Guarantor by
(x) executing and delivering to the Agent a counterpart of the Guaranty and a
counterpart of the Contribution Agreement, thereby becoming a party to each of
them, (y) delivering to the Agent an opinion of counsel to such Subsidiary
substantially in the form of Exhibit B, but limited to such Domestic
Significant Subsidiary, and excluding paragraph 2 thereof, and (z) delivering
to the Agent documents pertaining to such Domestic Subsidiary reasonably
requested by the Agent of the types described in paragraph (f) of Section
3.01.
(b) In the case of any Guarantor the stock of which is to be sold, such
Guarantor may submit to the Agent a request for a release of its obligations
under the Guaranty, and such Guarantor shall be entitled to obtain from the
Agent a written release from the Guaranty, provided that it can demonstrate to
the reasonable satisfaction of the Agent that (A) the provisions of Section
5.05 will not be breached by such sale, (b) all loans to such Guarantor from
the Borrower or any other Guarantor have been repaid in full, (C) the net
purchase price to be realized by the seller of such Guarantor for such sale
will be not less than 100% of the net book value of such seller's Investment
in such Guarantor, and (D) no Event of Default is in existence or will be
caused as a result of such sale, and upon obtaining such written release, it
shall no longer be a Guarantor for any purpose hereunder or under the
Guaranty.
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SECTION 5.24. Capital Stock and Promissory Notes of Foreign Significant
Subsidiaries to Be Pledged. In the event any Subsidiary (whether existing on
the Closing Date or acquired or created thereafter) is or becomes a Foreign
Significant Subsidiary, then (i) within 10 Euro-Dollar Business Days after the
Borrower becomes aware that it is a Foreign Significant Subsidiary, it must so
notify the Agent, and (ii) within 10 Euro-Dollar Business Days after giving
such notice, the Borrower shall (A) execute and deliver to the Agent a Stock
Pledge Agreement satisfactory to the Banks in all respects (whereby 51% of the
issued and outstanding capital stock of such Subsidiary shall be pledged to
the Banks), a Note Pledge Agreement satisfactory to the Banks in all respects,
and deliver the original Promissory Note satisfactory to the Banks in all
respects and/or original stock certificate evidencing such pledged capital
stock so pledged by such pledge agreements, along with an opinion of counsel
to the Borrower substantially in the form of Exhibit B, but limited to the
aforementioned pledge agreements, and deliver to the Agent documents
pertaining to the Borrower reasonably requested by the Agent of the types
described in paragraph (f) of Section 3.01, or (B) in lieu of the security
provided in clause (ii)(A) of this Section above, provide the Banks with
further assurances or guarantees comparable to those set forth in clause
(ii)(A) of this Section above, which further assurances or guarantees shall be
satisfactory to the Banks in their sole discretion. Provided, however, with
respect to Trion Limited, which is a Foreign Significant Subsidiary, the
Borrower shall not be required to comply with clause (ii) of this Section
above until the earlier to occur of the date on which (x) loans or advances
from the Borrower to Trion Limited (relating to Trion Limited's payroll needs)
exceed $250,000 at any time outstanding, or (y) another Foreign Significant
Subsidiary is required to comply with clause (ii) of this Section above.
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default. If one or more of the following events
("Events of Default") shall have occurred and be continuing:
(a)
the Borrower shall fail to pay when due any principal of any Loan or shall
fail to pay any interest on any Loan within 5 Domestic Business Days after
such interest shall become due, or shall fail to pay any fee or other amount
payable hereunder within 5 Domestic Business Days after such fee or other
amount becomes due; or
(b)
the Borrower shall fail to observe or perform any covenant contained in
Sections 5.01(e), 5.02(ii), 5.03
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through 5.06, inclusive, Sections 5.15 through 5.23, inclusive; or
(c)
the Borrower shall fail to observe or perform any covenant or agreement
contained or incorporated by reference in this Agreement (other than those
covered by paragraph (a) or (b) above) and such failure shall not have been
cured within 30 days after the earlier to occur of (i) written notice thereof
has been given to the Borrower by the Agent at the request of any Bank or (ii)
any of the chief executive, chief financial, chief operating, chief legal or
chief accounting officer of the Borrower otherwise becomes aware of any such
failure; or
(d)
any representation, warranty, certification or statement made by the Borrower
in Article IV of this Agreement or in any certificate, financial statement or
other document delivered pursuant to this Agreement shall prove to have been
incorrect or misleading in any material respect when made (or deemed made); or
(e)
the Borrower or any Subsidiary shall fail to make any payment in respect of
Debt in the aggregate principal amount outstanding in excess of $1,000,000
(other than the Notes) when due or within any applicable grace period; or
(f) any event or condition shall occur which results in the acceleration of
the maturity of Debt of the Borrower or any Subsidiary in the aggregate
principal amount outstanding in excess of $1,000,000 (including, without
limitation, any required mandatory prepayment or "put" of such Debt to the
Borrower or any Subsidiary) or enables (or, with the giving of notice or lapse
of time or both, would enable) the holders of such Debt or commitment or any
Person acting on such holders' behalf to accelerate the maturity thereof or
terminate any such commitment (including, without limitation, any required
mandatory prepayment or "put" of such Debt to the Borrower or any Subsidiary);
or
(g)
the Borrower or any Significant Subsidiary shall commence a voluntary case or
other proceeding seeking liquidation, reorganization or other relief with
respect to itself or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or
any substantial part of its property, or shall consent to any such relief or
to the appointment of or taking possession by any such official in an
involuntary case or other proceeding commenced against it, or shall make a
general assignment for the benefit of creditors, or shall fail generally to
pay its debts as they become due, or shall take any corporate action to
authorize any of the foregoing; or
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(h)
an involuntary case or other proceeding shall be commenced against the
Borrower or any Significant Subsidiary seeking liquidation, reorganization or
other relief with respect to it or its debts under any bankruptcy, insolvency
or other similar law now or hereafter in effect or seeking the appointment of
a trustee, receiver, liquidator, custodian or other similar official of it or
any substantial part of its property, and such involuntary case or other
proceeding shall remain undismissed and unstayed for a period of 60 days; or
an order for relief shall be entered against the Borrower or any Subsidiary
under the federal bankruptcy laws as now or hereafter in effect; or
(i)
the Borrower or any member of the Controlled Group shall fail to pay when due
any material amount which it shall have become liable to pay to the PBGC or to
a Plan under Title IV of ERISA; or notice of intent to terminate a Plan or
Plans shall be filed under Title IV of ERISA by the Borrower, any member of
the Controlled Group, any plan administrator or any combination of the
foregoing and such termination may have or would reasonably be expected to
cause a Material Adverse Effect; or the PBGC shall institute proceedings under
Title IV of ERISA to terminate or to cause a trustee to be appointed to
administer any such Plan or Plans or a proceeding shall be instituted by a
fiduciary of any such Plan or Plans to enforce Section 515 or 4219(c)(5) of
ERISA and such proceeding shall not have been dismissed within 30 days
thereafter; or a condition shall exist by reason of which the PBGC would be
entitled to obtain a decree adjudicating that any such Plan or Plans must be
terminated; or
(j)
one or more judgments or orders for the payment of money in an aggregate
amount in excess of $250,000] shall be rendered against the Borrower or any
Subsidiary and such judgment or order shall continue unsatisfied and unstayed
for a period of 30 days; or
(k)
a federal tax lien shall be filed against the Borrower or any Subsidiary under
Section 6323 of the Code or a lien of the PBGC shall be filed against the
Borrower or any Subsidiary under Section 4068 of ERISA involving amounts in
excess of $250,000 in the aggregate, and in either case such lien shall remain
undischarged for a period of 25 days after the date of filing; or
(l) (i) any Person or two or more Persons acting in concert shall have
acquired beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities Exchange Act of 1934)
of 30% or more of the outstanding shares of the voting stock of the Borrower;
or (ii) as of any date a majority of the Board of Directors of the Borrower
consists of individuals who were not either (A) directors of the Borrower as
of the
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corresponding date of the previous year, (B) selected or nominated to
become directors by the Board of Directors of the Borrower of which a majority
consisted of individuals described in clause (A), or (C) selected or nominated
to become directors by the Board of Directors of the Borrower of which a
majority consisted of individuals described in clause (A) and individuals
described in clause (B); or
(m)
the occurrence of any event, act, occurrence, or condition which the Required
Banks determine either does or has a reasonable probability of causing a
Material Adverse Effect.
then, and in every such event, (i) the Agent shall, if requested by the
Required Banks, by notice to the Borrower terminate the Commitments and they
shall thereupon terminate, and (ii) the Agent shall, if requested by the
Required Banks, by notice to the Borrower declare the Notes (together with
accrued interest thereon) to be, and the Notes shall thereupon become,
immediately due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Borrower together
with interest at the Default Rate accruing on the principal amount thereof
from and after the date of such Event of Default; provided that if any Event
of Default specified in paragraph (g) or (h) above occurs with respect to the
Borrower, without any notice to the Borrower or any other act by the Agent or
the Banks, the Commitments shall thereupon terminate and the Notes (together
with accrued interest thereon) shall become immediately due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Borrower together with interest thereon at the
Default Rate accruing on the principal amount thereof from and after the date
of such Event of Default. Notwithstanding the foregoing, the Agent shall have
available to it all other remedies at law or equity, and shall exercise any
one or all of them at the request of the Required Banks.
SECTION 6.02. Notice of Default. The Agent shall give notice to the Borrower
of any Default under Section 6.01(c) promptly upon being requested to do so by
any Bank and shall thereupon notify all the Banks thereof.
ARTICLE VII
THE AGENT
SECTION 7.01. Appointment; Powers and Immunities. Each Bank hereby
irrevocably appoints and authorizes the Agent to act as its agent hereunder
and under the other Loan Documents with such powers as are specifically
delegated to the Agent by the terms hereof and thereof, together with such
other powers as are reasonably incidental thereto. The Agent: (a) shall have
no duties or responsibilities except as expressly set forth in this
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Agreement
and the other Loan Documents, and shall not by reason of this Agreement or any
other Loan Document be a trustee for any Bank; (b) shall not be responsible to
the Banks for any recitals, statements, representations or warranties
contained in this Agreement or any other Loan Document, or in any certificate
or other document referred to or provided for in, or received by any Bank
under, this Agreement or any other Loan Document, or for the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document or any other document referred to or provided for
herein or therein or for any failure by the Borrower to perform any of its
obligations hereunder or thereunder; (c) shall not be required to initiate or
conduct any litigation or collection proceedings hereunder or under any other
Loan Document except to the extent requested by the Required Banks, and then
only on terms and conditions satisfactory to the Agent, and (d) shall not be
responsible for any action taken or omitted to be taken by it hereunder or
under any other Loan Document or any other document or instrument referred to
or provided for herein or therein or in connection herewith or therewith,
except for its own gross negligence or wilful misconduct. The Agent may
employ agents and attorneys-in-fact and shall not be responsible for the
negligence or misconduct of any such agents or attorneys-in-fact selected by
it with reasonable care. The provisions of this Article VII are solely for
the benefit of the Agent and the Banks, and the Borrower shall not have any
rights as a third party beneficiary of any of the provisions hereof, except as
expressly set forth herein. In performing its functions and duties under this
Agreement and under the other Loan Documents, the Agent shall act solely as
agent of the Banks and does not assume and shall not be deemed to have assumed
any obligation towards or relationship of agency or trust with or for the
Borrower. The duties of the Agent shall be ministerial and administrative in
nature, and the Agent shall not have by reason of this Agreement or any other
Loan Document a fiduciary relationship in respect of any Bank.
SECTION 7.02. Reliance by Agent. The Agent shall be entitled to rely upon any
certification, notice or other communication (including any thereof by
telephone, telecopier, telegram or cable) believed by it to be genuine and
correct and to have been signed or sent by or on behalf of the proper Person
or Persons, and upon advice and statements of legal counsel, independent
accountants or other experts selected by the Agent. As to any matters not
expressly provided for by this Agreement or any other Loan Document, the Agent
shall in all cases be fully protected in acting, or in refraining from acting,
hereunder and thereunder in accordance with instructions signed by the
Required Banks, and such instructions of the Required Banks in any action
taken or failure to act pursuant thereto shall be binding on all of the Banks.
SECTION 7.03. Defaults. The Agent shall not be deemed to have knowledge of
the occurrence of a Default or an Event of Default (other than the nonpayment
of principal of or interest on
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the Loans) unless the Agent has received notice
from a Bank or the Borrower specifying such Default or Event of Default and
stating that such notice is a "Notice of Default". In the event that the
Agent receives such a notice of the occurrence of a Default or an Event of
Default, the Agent shall give prompt notice thereof to the Banks. The Agent
shall give each Bank prompt notice of each nonpayment of principal of or
interest on the Loans whether or not it has received any notice of the
occurrence of such nonpayment. The Agent shall (subject to Section 9.06) take
such action hereunder with respect to such Default or Event of Default as
shall be directed by the Required Banks, provided that, unless and until the
Agent shall have received such directions, the Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interests of the Banks.
SECTION 7.04. Rights of Agent as a Bank. If Wachovia Bank of Georgia, N.A. at
any time becomes a Bank hereunder, the following provisions shall apply. With
respect to the Loans made by it, the Agent in its capacity as a Bank hereunder
shall have the same rights and powers hereunder as any other Bank and may
exercise the same as though it were not acting as the Agent, and the term
"Bank" or "Banks" shall, unless the context otherwise indicates, include
Wachovia Bank of Georgia, N.A. in its individual capacity. The Agent may
(without having to account therefor to any Bank) accept deposits from, lend
money to and generally engage in any kind of banking, trust or other business
with the Borrower (and any of its Affiliates) as if it were not acting as the
Agent, and the Agent may accept fees and other consideration from the Borrower
(in addition to any agency fees and arrangement fees heretofore agreed to
between the Borrower and the Agent) for services in connection with this
Agreement or any other Loan Document or otherwise without having to account
for the same to the Banks.
SECTION 7.05. Indemnification. Each Bank severally agrees to indemnify the
Agent, to the extent the Agent shall not have been reimbursed by the Borrower,
ratably in accordance with its Commitment, for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including, without limitation, counsel fees and disbursements) 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 this Agreement or any other Loan Document or any other documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby (excluding, unless an Event of Default has
occurred and is continuing, the normal administrative costs and expenses
incident to the performance of its agency duties hereunder) or the enforcement
of any of the terms hereof or thereof or any such other documents; provided
that no Bank shall be liable for any of the foregoing to the extent they arise
from the gross negligence or wilful misconduct of the Agent. If any indemnity
furnished to
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the Agent for any purpose shall, in the opinion of the Agent, be
insufficient or become impaired, the Agent may call for additional indemnity
and cease, or not commence, to do the acts indemnified against until such
additional indemnity is furnished.
SECTION 7.06 Consequential Damages. THE AGENT SHALL NOT BE RESPONSIBLE OR
LIABLE TO ANY BANK, THE BORROWER OR ANY OTHER PERSON OR ENTITY FOR ANY
PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED AS A RESULT
OF THIS AGREEMENT, THE OTHER LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
SECTION 7.07. Payee of Note Treated as Owner. The Agent may deem and treat
the payee of any Note as the owner thereof for all purposes hereof unless and
until a written notice of the assignment or transfer thereof shall have been
filed with the Agent and the provisions of Section 9.08(c) have been
satisfied. Any requests, 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 that Note or of any Note or Notes issued in exchange therefor
or replacement thereof.
SECTION 7.08. Nonreliance on Agent and Other Banks. Each Bank agrees that it
has, independently and without reliance on the Agent or any other Bank, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis of the Borrower and decision to enter into this Agreement
and that it will, independently and without reliance upon the Agent or any
other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own analysis and decisions in
taking or not taking action under this Agreement or any of the other Loan
Documents. The Agent shall not be required to keep itself informed as to the
performance or observance by the Borrower of this Agreement or any of the
other Loan Documents or any other document referred to or provided for herein
or therein or to inspect the properties or books of the Borrower or any other
Person. Except for notices, reports and other documents and information
expressly required to be furnished to the Banks by the Agent hereunder or
under the other Loan Documents, the Agent shall not have any duty or
responsibility to provide any Bank with any credit or other information
concerning the affairs, financial condition or business of the Borrower or any
other Person (or any of their Affiliates) which may come into the possession
of the Agent.
SECTION 7.09. Failure to Act. Except for action expressly required of the
Agent hereunder or under the other Loan Documents, the Agent shall in all
cases be fully justified in failing or refusing to act hereunder and
thereunder unless it shall receive further assurances to its satisfaction by
the Banks of their indemnification obligations under Section 7.05 against any
and all liability and expense which may be incurred by the
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Agent by reason of taking, continuing to take, or failing to take any such
action.
SECTION 7.10. Resignation or Removal of Agent. Subject to the appointment and
acceptance of a successor Agent as provided below, the Agent may resign at any
time by giving notice thereof to the Banks and the Borrower and the Agent may
be removed at any time with or without cause by the Required Banks. Upon any
such resignation or removal, the Required Banks shall have the right to
appoint a successor Agent reasonably satisfactory to the Borrower. If no
successor Agent shall have been so appointed by the Required Banks and shall
have accepted such appointment within 30 days after the retiring Agent's
notice of resignation or the Required Banks' removal of the retiring Agent,
then the retiring Agent may, on behalf of the Banks, appoint a successor
Agent. Any successor Agent shall be a bank which has a combined capital and
surplus of at least $500,000,000. 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, and the retiring Agent shall be discharged from
its duties and obligations hereunder. After any retiring Agent's resignation
or removal hereunder as Agent, the provisions of this Article VII 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.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES; COMPENSATION
SECTION 8.01. Basis for Determining Interest Rate Inadequate or Unfair. If on
or prior to the first day of any Interest Period:
(a)
the Agent determines that deposits in Dollars (in the applicable amounts) are
not being offered in the relevant market for such Interest Period, or
(b) the Required Banks advise the Agent that the London Interbank Offered
Rate, as determined by the Agent will not adequately and fairly reflect the
cost to such Banks of funding the Euro-Dollar Loans for such Interest Period,
the Agent shall forthwith give notice thereof to the Borrower and the Banks,
whereupon until the Agent notifies the Borrower that the circumstances giving
rise to such suspension no longer exist, the obligations of the Banks to make
Euro-Dollar Loans specified in such notice shall be suspended. Unless the
Borrower notifies the Agent at least 2 Domestic Business Days before the date
of any Borrowing of such Euro-Dollar Loans for which a Notice of Borrowing has
previously been given that it elects not to borrow
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on such date, such Borrowing shall instead be made as a Base Rate Borrowing.
SECTION 8.02. Illegality. If, after the date hereof, the adoption of any
applicable law, rule or regulation, or any change therein, or any change in
the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof (any such agency being referred to as an "Authority"
and any such event being referred to as a "Change of Law"), or compliance by
any Bank (or its Lending Office) with any request or directive (whether or not
having the force of law) of any Authority shall make it unlawful or impossible
for any Bank (or its Lending Office) to make, maintain or fund its Euro-Dollar
Loans and such Bank shall so notify the Agent, the Agent shall forthwith give
notice thereof to the other Banks and the Borrower, whereupon until such Bank
notifies the Borrower and the Agent that the circumstances giving rise to such
suspension no longer exist, the obligation of such Bank to make Euro-Dollar
Loans shall be suspended. Before giving any notice to the Agent pursuant to
this Section, such Bank shall designate a different Lending Office if such
designation will avoid the need for giving such notice and will not, in the
judgment of such Bank, be otherwise disadvantageous to such Bank. If such
Bank shall determine that it may not lawfully continue to maintain and fund
any of its outstanding Euro-Dollar Loans to maturity and shall so specify in
such notice, the Borrower shall immediately prepay in full the then
outstanding principal amount of each Euro-Dollar Loan of such Bank, together
with accrued interest thereon. Concurrently with prepaying each such
Euro-Dollar Loan, the Borrower shall borrow a Base Rate Loan in an equal
principal amount from such Bank (on which interest and principal shall be
payable contemporaneously with the related Euro-Dollar Loans of the other
Banks), and such Bank shall make such a Base Rate Loan.
SECTION 8.03. Increased Cost and Reduced Return. (a) If after the date
hereof, a Change of Law or compliance by any Bank (or its Lending Office) with
any request or directive (whether or not having the force of law) of any
Authority:
(i) shall impose, modify or deem applicable any reserve, special deposit or
similar requirement (including, without limitation, any such requirement
imposed by the Board of Governors of the Federal Reserve System, but excluding
any such requirement included in an applicable Euro-Dollar Reserve Percentage)
against assets of, deposits with or for the account of, or credit extended by,
any Bank (or its Lending Office); or
(ii) shall impose on any Bank (or its Lending Office) or on the London
interbank market any other condition affecting its Euro-Dollar Loans, its
Notes or its obligation to make Euro-Dollar Loans;
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and the result of any of the foregoing is to increase the cost to such Bank
(or its Lending Office) of making or maintaining any Loan, or to reduce the
amount of any sum received or receivable by such Bank (or its Lending Office)
under this Agreement or under its Notes with respect thereto, by an amount
deemed by such Bank to be material, then, within 15 days after demand by such
Bank (with a copy to the Agent), the Borrower shall pay to such Bank such
additional amount or amounts as will compensate such Bank for such increased
cost or reduction.
(b) If any Bank shall have determined that after the date hereof the adoption
of any applicable law, rule or regulation regarding capital adequacy, or any
change therein, or any change in the interpretation or administration thereof,
or compliance by any Bank (or its Lending Office) with any request or
directive regarding capital adequacy (whether or not having the force of law)
of any Authority, has or would have the effect of reducing the rate of return
on such Bank's capital as a consequence of its obligations hereunder to a
level below that which such Bank could have achieved but for such adoption,
change or compliance (taking into consideration such Bank's policies with
respect to capital adequacy) by an amount deemed by such Bank to be material,
then from time to time, within 15 days after demand by such Bank, the Borrower
shall pay to such Bank such additional amount or amounts as will compensate
such Bank for such reduction.
(c)
Each Bank will promptly notify the Borrower and the Agent of any event of
which it has knowledge, occurring after the date hereof, which will entitle
such Bank to compensation pursuant to this Section and will designate a
different Lending Office if such designation will avoid the need for, or
reduce the amount of, such compensation and will not, in the judgment of such
Bank, be otherwise disadvantageous to such Bank. A certificate of any Bank
claiming compensation under this Section and setting forth the additional
amount or amounts to be paid to it hereunder shall be conclusive in the
absence of manifest error. In determining such amount, such Bank may use any
reasonable averaging and attribution methods.
(d)
The provisions of this Section 8.03 shall be applicable with respect to any
Participant, Assignee or other Transferee, and any calculations required by
such provisions shall be made based upon the circumstances of such
Participant, Assignee or other Transferee.
(e) Notwithstanding the foregoing, in the event the Borrower is required to
pay any Bank amounts pursuant to Section 2.12(c) or this Section 8.03 and the
designation of a different Lending Office pursuant to Section 2.12(c) or
Section 8.03(c) will not avoid the need for compensation to such Bank (an
"Affected Bank"), the Borrower may give notice to such Affected Bank (with
copies to the Agent) that it wishes to seek one or more assignees (which may
be one or more of the Banks) to assume
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the Commitment of such Affected Bank
and to purchase its outstanding Loans and Notes; provided, that if there is
more than one Affected Bank which has requested substantially and
proportionally equal compensation hereunder, the Borrower shall elect to seek
an assignee to assume the Commitments of all such Affected Banks. Each
Affected Bank agrees to sell its Commitment, Loans, Notes and interest in this
Agreement in accordance with Section 9.08(c) to any such assignee for an
amount equal to the sum of the outstanding unpaid principal of and accrued
interest on such Loans and Notes, plus all other fees and amounts (including,
without limitation, any compensation due to such Affected Banks under Section
2.12(c) or this Section 8.03) due to such Affected Bank hereunder calculated,
in each case, to the date such Loans, Notes and interest are purchased. Upon
such sale or prepayment, each such Affected Bank shall have no further
commitment or other obligation to the Borrower hereunder or under any Note.
SECTION 8.04. Base Rate Loans Substituted for Euro-Dollar Loans. If (i) the
obligation of any Bank to make or maintain any Euro-Dollar Loans has been
suspended pursuant to Section 8.02 or (ii) any Bank has demanded compensation
under Section 8.03, and the Borrower shall, by at least 5 Euro-Dollar Business
Days' prior notice to such Bank through the Agent, have elected that the
provisions of this Section shall apply to such Bank, then, unless and until
such Bank notifies the Borrower that the circumstances giving rise to such
suspension or demand for compensation no longer apply:
(a)
all Loans which would otherwise be made by such Bank Euro-Dollar Loans shall
be made instead as Base Rate Loans (in all cases interest and principal on
such Loans shall be payable contemporaneously with the related Euro-Dollar
Loans of the other Banks), and
(b)
after each of its Euro-Dollar Loans has been repaid, all payments of principal
which would otherwise be applied to repay such Euro-Dollar Loans shall be
applied to repay its Base Rate Loans instead.
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SECTION 8.05. Compensation. Upon the request of any Bank, delivered to the
Borrower and the Agent, the Borrower shall pay to such Bank such amount or
amounts as shall compensate such Bank for any loss, cost or expense incurred
by such Bank as a result of:
(a)
any payment or prepayment (pursuant to Section 2.10, 2.11, 6.01, 8.02 or
otherwise) of a Euro-Dollar Loan on a date other than the last day of an
Interest Period for such Loan; or
(b)
any failure by the Borrower to borrow a Euro-Dollar Loan on the date for the
Euro-Dollar Borrowing of which such Fixed Rate Loan is a part specified in the
applicable Notice of Borrowing delivered pursuant to Section 2.03;
such compensation to include, without limitation, an amount equal to the
excess, if any, of (x) the amount of interest which would have accrued on the
amount so paid or prepaid or not prepaid or borrowed for the period from the
date of such payment, prepayment or failure to prepay or borrow to the last
day of the then current Interest Period for such Euro-Dollar Loan (or, in the
case of a failure to prepay or borrow, the Interest Period for such Euro-
Dollar Loan which would have commenced on the date of such failure to prepay
or borrow) at the applicable rate of interest for such Euro-Dollar Loan
provided for herein over (y) the amount of interest (as reasonably determined
by such Bank) such Bank would have paid on deposits in Dollars of comparable
amounts having terms comparable to such period placed with it by leading banks
in the London interbank market.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. All notices, requests and other communications to any
party hereunder shall be in writing (including bank wire, telecopier or
similar writing) and shall be given to such party at its address or telecopier
number set forth on the signature pages hereof or such other address or
telecopier number as such party may hereafter specify for the purpose by
notice to each other party. Each such notice, request or other communication
shall be effective (i) if given by telecopier, when such telecopy is
transmitted to the telecopier number specified in this Section and the
appropriate confirmation is received, (ii) if given by mail, 72 hours after
such communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid or (iii) if given by any other means, when delivered at
the address specified in this Section; provided that notices to the Agent
under Article II or Article VIII shall not be effective until received.
SECTION 9.02. No Waivers. No failure or delay by the Agent or any Bank in
exercising any right, power or privilege hereunder or under any Note or other
Loan Document shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies
herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
SECTION 9.03. Expenses; Documentary Taxes. The Borrower shall pay (i) all
out-of-pocket expenses of the Agent, including fees and disbursements of
special counsel for the Agent, Jones, Day, Reavis & Pogue, in connection with
the preparation of this Agreement and the other Loan Documents executed and
delivered on the Closing Date, (ii) all out-of-pocket expenses of the Agent,
including fees and disbursements of special counsel for the Banks and the
Agent, in
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connection with the preparation of other Loan Documents after the
Closing Date, any waiver or consent hereunder or thereunder or any amendment
hereof or thereof or any Default or alleged Default hereunder or thereunder,
and (iii) if a Default occurs, all out-of-pocket expenses incurred by the
Agent and the Banks, including fees and disbursements of counsel, in
connection with such Default and collection and other enforcement proceedings
resulting therefrom, including out-of-pocket expenses incurred in enforcing
this Agreement and the other Loan Documents. The Borrower shall indemnify the
Agent and each Bank against any transfer taxes, documentary taxes, assessments
or charges made by any Authority by reason of the execution and delivery of
this Agreement or the other Loan Documents.
SECTION 9.04. Indemnification. The Borrower shall indemnify the Agent, the
Banks and each Affiliate thereof and their respective directors, officers,
employees and agents from, and hold each of them harmless against, any and all
losses, liabilities, claims or damages to which any of them may become
subject, insofar as such losses, liabilities, claims or damages arise out of
or result from any actual or proposed use by the Borrower of the proceeds of
any extension of credit by any Bank hereunder or breach by the Borrower of
this Agreement or any other Loan Document or from any investigation,
litigation (including, without limitation, any actions taken by the Agent or
any of the Banks to enforce this Agreement or any of the other Loan Documents)
or other proceeding (including, without limitation, any threatened
investigation or proceeding) relating to the foregoing, and the Borrower shall
reimburse the Agent and each Bank, and each Affiliate thereof and their
respective directors, officers, employees and agents, upon demand for any
expenses (including, without limitation, legal fees) incurred in connection
with any such investigation or proceeding; but excluding any such losses,
liabilities, claims, damages or expenses incurred by reason of the gross
negligence or wilful misconduct of the Person to be indemnified.
SECTION 9.05. Setoff; Sharing of Setoffs. (a) The Borrower agrees that the
Agent and each Bank shall have a lien for all indebtedness and obligations
owing to them from the Borrower upon all deposits or deposit accounts, of any
kind, or any interest in any deposits or deposit accounts thereof, now or
hereafter pledged, mortgaged, transferred or assigned to the Agent or any such
Bank or otherwise in the possession or control of the Agent or any such Bank
for any purpose for the account or benefit of the Borrower and including any
balance of any deposit account or of any credit of the Borrower with the Agent
or any such Bank, whether now existing or hereafter established hereby
authorizing the Agent and each Bank at any time or times with or without prior
notice to apply such balances or any part thereof to such of the indebtedness
and obligations owing by the Borrower to the Banks and/or the Agent then past
due and in such amounts as they may elect, and whether or not the collateral,
if any, or the responsibility of other Persons primarily, secondarily or
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<PAGE>
otherwise liable may be deemed adequate. For the purposes of this paragraph,
all remittances and property shall be deemed to be in the possession of the
Agent or any such Bank as soon as the same may be put in transit to it by mail
or carrier or by other bailee.
(b)
Each Bank agrees that if it shall, by exercising any right of setoff or
counterclaim or resort to collateral security or otherwise, receive payment of
a proportion of the aggregate amount of principal and interest owing with
respect to the Note held by it which is greater than the proportion received
by any other Bank in respect of the aggregate amount of all principal and
interest owing with respect to the Note held by such other Bank, the Bank
receiving such proportionately greater payment shall purchase such
participations in the Notes held by the other Banks owing to such other Banks,
and such other adjustments shall be made, as may be required so that all such
payments of principal and interest with respect to the Notes held by the Banks
owing to such other Banks shall be shared by the Banks pro rata; provided that
(i) nothing in this Section shall impair the right of any Bank to exercise any
right of setoff or counterclaim it may have and to apply the amount subject to
such exercise to the payment of indebtedness of the Borrower other than its
indebtedness under the Notes, and (ii) if all or any portion of such payment
received by the purchasing Bank is thereafter recovered from such purchasing
Bank, such purchase from each other Bank shall be rescinded and such other
Bank shall repay to the purchasing Bank the purchase price of such
participation to the extent of such recovery together with an amount equal to
such other Bank's ratable share (according to the proportion of (x) the amount
of such other Bank's required repayment to (y) the total amount so recovered
from the purchasing Bank) of any interest or other amount paid or payable by
the purchasing Bank in respect of the total amount so recovered. The Borrower
agrees, to the fullest extent it may effectively do so under applicable law,
that any holder of a participation in a Note, whether or not acquired pursuant
to the foregoing arrangements, may exercise rights of setoff or counterclaim
and other rights with respect to such participation as fully as if such holder
of a participation were a direct creditor of the Borrower in the amount of
such participation.
SECTION 9.06. Amendments and Waivers. (a) Any provision of this Agreement,
the Notes or any other Loan Documents may be amended or waived if, but only
if, such amendment or waiver is in writing and is signed by the Borrower and
the Required Banks (and, if the rights or duties of the Agent are affected
thereby, by the Agent); provided that, no such amendment or waiver shall,
unless signed by all Banks and the Borrower, (i) change the Commitment of any
Bank or subject any Bank to any additional obligation, (ii) change the
principal of or rate of interest on any Loan or any fees (other than fees
payable to the Agent) hereunder, (iii) change the date fixed for any payment
of principal of or interest on any Loan or any fees
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<PAGE>
hereunder, (iv) change the
amount of principal, interest or fees due on any date fixed for the payment
thereof, (v) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Notes, or the percentage of Banks, which shall
be required for the Banks or any of them to take any action under this Section
or any other provision of this Agreement, (vi) change the manner of
application of any payments made under this Agreement or the Notes, (vii)
release or substitute all or any substantial part of the collateral (if any)
held as security for the Loans, or (viii) release any Guarantee given to
support payment of the Loans.
(b)
The Borrower will not solicit, request or negotiate for or with respect to any
proposed waiver or amendment of any of the provisions of this Agreement unless
each Bank shall be informed thereof by the Borrower and shall be afforded an
opportunity of considering the same and shall be supplied by the Borrower with
sufficient information to enable it to make an informed decision with respect
thereto. Executed or true and correct copies of any waiver or consent
effected pursuant to the provisions of this Agreement shall be delivered by
the Borrower to each Bank forthwith following the date on which the same shall
have been executed and delivered by the requisite percentage of Banks. The
Borrower will not, directly or indirectly, pay or cause to be paid any
remuneration, whether by way of supplemental or additional interest, fee or
otherwise, to any Bank (in its capacity as such) as consideration for or as an
inducement to the entering into by such Bank of any waiver or amendment of any
of the terms and provisions of this Agreement unless such remuneration is
concurrently paid, on the same terms, ratably to all such Banks.
SECTION 9.07. No Margin Stock Collateral. Each of the Banks represents to the
Agent and each of the other Banks that it in good faith is not, directly or
indirectly (by negative pledge or otherwise), relying upon any Margin Stock as
collateral in the extension or maintenance of the credit provided for in this
Agreement.
SECTION 9.08. Successors and Assigns. (a) The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided that the Borrower may not assign
or otherwise transfer any of its rights under this Agreement.
(b)
Any Bank may at any time sell to one or more Persons (each a "Participant")
participating interests in any Loan owing to such Bank, any Note held by such
Bank, any Commitment hereunder or any other interest of such Bank hereunder.
In the event of any such sale by a Bank of a participating interest to a
Participant, such Bank's obligations under this Agreement shall remain
unchanged, such Bank shall remain solely responsible for the performance
thereof, such Bank shall remain the holder of any such Note for all purposes
under
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<PAGE>
this Agreement, and the Borrower and the Agent shall continue to deal
solely and directly with such Bank in connection with such Bank's rights and
obligations under this Agreement. In no event shall a Bank that sells a
participation be obligated to the Participant to take or refrain from taking
any action hereunder except that such Bank may agree that it will not (except
as provided below), without the consent of the Participant, agree to (i) the
change of any date fixed for the payment of principal of or interest on the
related loan or loans, (ii) the change of the amount of any principal,
interest or fees due on any date fixed for the payment thereof with respect to
the related loan or loans, (iii) the change of the principal of the related
loan or loans, (iv) any change in the rate at which either interest is payable
thereon or (if the Participant is entitled to any part thereof) fee is payable
hereunder from the rate at which the Participant is entitled to receive
interest or fee (as the case may be) in respect of such participation, (v) the
release or substitution of all or any substantial part of the collateral (if
any) held as security for the Loans, or (vi) the release of any Guarantee
given to support payment of the Loans. Each Bank selling a participating
interest in any Loan, Note, Commitment or other interest under this Agreement
shall, within 10 Domestic Business Days of such sale, provide the Borrower and
the Agent with written notification stating that such sale has occurred and
identifying the Participant and the interest purchased by such Participant.
The Borrower agrees that each Participant shall be entitled to the benefits of
Article VIII with respect to its participation in Loans outstanding from time
to time.
(c) With the prior written approval of the Borrower, which may not be
unreasonably withheld or delayed, any Bank may at any time assign to one or
more banks or financial institutions (each an "Assignee") all or a
proportionate part of both of its Revolver Loans and Term Loans and both of
its Revolver Loan Commitment and Term Loan Commitment of its rights and
obligations under this Agreement, the Notes and the other Loan Documents, and
such Assignee shall assume all such rights and obligations, pursuant to an
Assignment and Acceptance, executed by such Assignee, such transferor Bank and
the Agent; provided that (i) no interest may be sold by a Bank pursuant to
this paragraph (c) unless the Assignee shall agree to assume ratably
equivalent portions of the transferor Bank's Commitment, and (ii) if a Bank is
assigning only a portion of its Commitment, then, the amount of the Commitment
being assigned (determined as of the effective date of the assignment) shall
be in an amount not less than $6,000,000. Upon (A) execution of the
Assignment and Acceptance by such transferor Bank, such Assignee, the Agent
and the Borrower, (B) delivery of an executed copy of the Assignment and
Acceptance to the Borrower and the Agent, (C) payment by such Assignee to such
transferor Bank of an amount equal to the purchase price agreed between such
transferor Bank and such Assignee, and (D) payment of a processing and
recordation fee of $2,500 to the Agent, such Assignee shall for all purposes
be a Bank party to this Agreement and shall have all the rights and
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<PAGE>
obligations of a Bank under this Agreement to the same extent as if it were an
original party hereto with a Commitment as set forth in such instrument of
assumption, and the transferor Bank shall be released from its obligations
hereunder to a corresponding extent, and no further consent or action by the
Borrower, the Banks or the Agent shall be required. Upon the consummation of
any transfer to an Assignee pursuant to this paragraph (c), the transferor
Bank, the Agent and the Borrower shall make appropriate arrangements so that,
if required, a new Note is issued to such Assignee.
(d) Subject to the provisions of Section 9.09, the Borrower authorizes each
Bank to disclose to any Participant, Assignee or other transferee (each a
"Transferee") and any prospective Transferee any and all financial information
in such Bank's possession concerning the Borrower which has been delivered to
such Bank by the Borrower pursuant to this Agreement or which has been
delivered to such Bank by the Borrower in connection with such Bank's credit
evaluation prior to entering into this Agreement.
(e) No Transferee shall be entitled to receive any greater payment under
Section 8.03 than the transferor Bank would have been entitled to receive with
respect to the rights transferred, unless such transfer is made with the
Borrower's prior written consent or by reason of the provisions of Section
8.02 or 8.03 requiring such Bank to designate a different Lending Office under
certain circumstances or at a time when the circumstances giving rise to such
greater payment did not exist.
(g) Anything in this Section 9.08 to the contrary notwithstanding, any Bank
may assign and pledge all or any portion of the Loans and/or obligations owing
to it to any Federal Reserve Bank or the United States Treasury as collateral
security pursuant to Regulation A of the Board of Governors of the Federal
Reserve System and any Operating Circular issued by such Federal Reserve Bank,
provided that any payment in respect of such assigned Loans and/or obligations
made by the Borrower to the assigning and/or pledging Bank in accordance with
the terms of this Agreement shall satisfy the Borrower's obligations hereunder
in respect of such assigned Loans and/or obligations to the extent of such
payment. No such assignment shall release the assigning and/or pledging Bank
from its obligations hereunder.
SECTION 9.09. Confidentiality. Each Bank agrees to exercise commercially
reasonable efforts to keep any information delivered or made available by the
Borrower to it confidential from anyone other than persons employed or
retained by such Bank who are or are expected to become engaged in evaluating,
approving, structuring or administering the Loans; provided that nothing
herein shall prevent any Bank from disclosing such information (i) to any
other Bank, (ii) upon the order of any
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<PAGE>
court or administrative agency, (iii)
upon the request or demand of any regulatory agency or authority having
jurisdiction over such Bank, (iv) which has been publicly disclosed, (v) to
the extent reasonably required in connection with any litigation to which the
Agent, any Bank or their respective Affiliates may be a party, (vi) to the
extent reasonably required in connection with the exercise of any remedy
hereunder, (vii) to such Bank's legal counsel and independent auditors and
(viii) to any actual or proposed Participant, Assignee or other Transferee of
all or part of its rights hereunder which has agreed in writing to be bound by
the provisions of this Section 9.09; provided that should disclosure of any
such confidential information be required by virtue of clause (ii) of the
immediately preceding sentence, any relevant Bank shall promptly notify the
Borrower of same so as to allow the Borrower to seek a protective order or to
take any other appropriate action; provided, further, that, no Bank shall be
required to delay compliance with any directive to disclose any such
information so as to allow the Borrower to effect any such action.
SECTION 9.10. Representation by Banks. Each Bank hereby represents that it is
a commercial lender or financial institution which makes Loans in the ordinary
course of its business and that it will make its Loans hereunder for its own
account in the ordinary course of such business; provided that, subject to
Section 9.08, the disposition of the Note or Notes held by that Bank shall at
all times be within its exclusive control.
SECTION 9.11. Obligations Several. The obligations of each Bank hereunder are
several, and no Bank shall be responsible for the obligations or commitment of
any other Bank hereunder. Nothing contained in this Agreement and no action
taken by the Banks pursuant hereto shall be deemed to constitute the Banks to
be a partnership, an association, a joint venture or any other kind of entity.
The amounts payable at any time hereunder to each Bank shall be a separate and
independent debt, and each Bank shall be entitled to protect and enforce its
rights arising out of this Agreement or any other Loan Document and it shall
not be necessary for any other Bank to be joined as an additional party in any
proceeding for such purpose.
SECTION 9.12. North Carolina Law. This Agreement and each Note shall be
construed in accordance with and governed by the law of the State of North
Carolina.
SECTION 9.13. Severability. In case any one or more of the provisions
contained in this Agreement, the Notes or any of the other Loan Documents
should be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein and
therein shall not in any way be affected or impaired thereby and shall be
enforced to the greatest extent permitted by law.
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<PAGE>
SECTION 9.14. Interest. In no event shall the amount of interest, and all
charges, amounts or fees contracted for, charged or collected pursuant to this
Agreement, the Notes or the other Loan Documents and deemed to be interest
under applicable law (collectively, "Interest") exceed the highest rate of
interest allowed by applicable law (the "Maximum Rate"), and in the event any
such payment is inadvertently received by any Bank, then the excess sum (the
"Excess") shall be credited as a payment of principal, unless the Borrower
shall notify such Bank in writing that it elects to have the Excess returned
forthwith. It is the express intent hereof that the Borrower not pay and the
Banks not receive, directly or indirectly in any manner whatsoever, interest
in excess of that which may legally be paid by the Borrower under applicable
law. The right to accelerate maturity of any of the Loans does not include
the right to accelerate any interest that has not otherwise accrued on the
date of such acceleration, and the Agent and the Banks do not intend to
collect any unearned interest in the event of any such acceleration. All
monies paid to the Agent or the Banks hereunder or under any of the Notes or
the other Loan Documents, whether at maturity or by prepayment, shall be
subject to rebate of unearned interest as and to the extent required by
applicable law. By the execution of this Agreement, the Borrower covenants
that (i) the credit or return of any Excess shall constitute the acceptance by
the Borrower of such Excess, and (ii) the Borrower shall not seek or pursue
any other remedy, legal or equitable , against the Agent or any Bank, based in
whole or in part upon contracting for charging or receiving any Interest in
excess of the Maximum Rate. For the purpose of determining whether or not any
Excess has been contracted for, charged or received by the Agent or any Bank,
all interest at any time contracted for, charged or received from the Borrower
in connection with this Agreement, the Notes or any of the other Loan
Documents shall, to the extent permitted by applicable law, be amortized,
prorated, allocated and spread in equal parts throughout the full term of the
Commitments. The Borrower, the Agent and each Bank shall, to the maximum
extent permitted under applicable law, (i) characterize any non-principal
payment as an expense, fee or premium rather than as Interest and (ii) exclude
voluntary prepayments and the effects thereof. The provisions of this Section
shall be deemed to be incorporated into each Note and each of the other Loan
Documents (whether or not any provision of this Section is referred to
therein). All such Loan Documents and communications relating to any Interest
owed by the Borrower and all figures set forth therein shall, for the sole
purpose of computing the extent of obligations hereunder and under the Notes
and the other Loan Documents be automatically recomputed by the Borrower, and
by any court considering the same, to give effect to the adjustments or
credits required by this Section.
SECTION 9.15. Interpretation. No provision of this Agreement or any of the
other Loan Documents shall be construed against or interpreted to the
disadvantage of any party hereto by any court or other governmental or
judicial authority by
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<PAGE>
reason of such party having or being deemed to have structured or
dictated such provision.
SECTION 9.16. Waiver of Jury Trial; Consent to Jurisdiction. The Borrower (a)
and each of the Banks and the Agent irrevocably waives, to the fullest extent
permitted by law, any and all right to trial by jury in any legal proceeding
arising out of this Agreement, any of the other Loan Documents, or any of the
transactions contemplated hereby or thereby, (b) submits to the nonexclusive
personal jurisdiction in the State of Georgia, the courts thereof and the
United States District Courts sitting therein, for the enforcement of this
Agreement, the Notes and the other Loan Documents, (c) waives any and all
personal rights under the law of any jurisdiction to object on any basis
(including, without limitation, inconvenience of forum) to jurisdiction or
venue within the State of Georgia for the purpose of litigation to enforce
this Agreement, the Notes or the other Loan Documents, and (d) agrees that
service of process may be made upon it in the manner prescribed in Section
9.01 for the giving of notice to the Borrower. Nothing herein contained,
however, shall prevent the Agent from bringing any action or exercising any
rights against any security and against the Borrower personally, and against
any assets of the Borrower, within any other state or jurisdiction.
SECTION 9.17. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
SECTION 9.18. Source of Funds -- ERISA. Each of the Banks hereby severally
(and not jointly) represents to the Borrower that no part of the funds to be
used by such Bank to fund the Loans hereunder from time to time constitutes
(i) assets allocated to any separate account maintained by such Bank in which
any employee benefit plan (or its related trust) has any interest nor (ii) any
other assets of any employee benefit plan. As used in this Section, the terms
"employee benefit plan" and "separate account" shall have the respective
meanings assigned to such terms in Section 3 of ERISA.
[Signatures are contained on the following pages.]
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed, under seal, by their respective authorized officers as of the day
and year first above written.
TRION, INC. (SEAL)
By:
Title:
Attention:
Telecopier number:
Confirmation number:
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<PAGE>
AGENT: WACHOVIA BANK OF GEORGIA, N.A.,
as Agent (SEAL)
By:
Title:
Office
Wachovia Bank of Georgia, N.A.
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Attention: Syndications Group
Telecopier number: 404-332-4005
Confirmation number: 404-332-6971
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<PAGE>
COMMITMENTS WACHOVIA BANK OF NORTH
CAROLINA, N.A., as a Bank (SEAL)
Revolver Loan
Commitment:
$8,000,000
By:
Term Loan Title:
Commitment:
$10,000,000 Lending Office
Wachovia Bank of North
Carolina, N.A.
227 Fayetteville Street Mall
Raleigh, N. C. 27601
Attention:
Telecopier number:
Confirmation number:
TOTAL COMMITMENTS:
$18,000,000
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<PAGE>
EXHIBIT A-1
REVOLVER LOAN NOTE
Atlanta, Georgia
September 8, 1995
For value received, TRION, INC., a Pennsylvania corporation (the
"Borrower"), promises to pay to the order of
__________________________________________________, a ____________________
(the "Bank"), for the account of its Lending Office, the principal sum of
___________________________________ AND NO/100 DOLLARS ($ ), or
such lesser amount as shall equal the unpaid principal amount of each Loan
made by the Bank to the Borrower pursuant to the Credit Agreement referred to
below, on the dates and in the amounts provided in the Credit Agreement. The
Borrower promises to pay interest on the unpaid principal amount of this
Revolver Loan Note on the dates and at the rate or rates provided for in the
Credit Agreement. Interest on any overdue principal of and, to the extent
permitted by law, overdue interest on the principal amount hereof shall bear
interest at the Default Rate, as provided for in the Credit Agreement. All
such payments of principal and interest shall be made in lawful money of the
United States in Federal or other immediately available funds at the office of
Wachovia Bank of Georgia, N.A., 191 Peachtree Street, N.E., Atlanta, Georgia
30303-1757, or such other address as may be specified from time to time
pursuant to the Credit Agreement.
All Revolver Loans made by the Bank, the respective maturities
thereof, the interest rates from time to time applicable thereto, and all
repayments of the principal thereof shall be recorded by the Bank and, prior
to any transfer hereof, endorsed by the Bank on the schedule attached hereto,
or on a continuation of such schedule attached to and made a part hereof;
provided that the failure of the Bank to make any such recordation or
endorsement shall not affect the obligations of the Borrower hereunder or
under the Credit Agreement.
This Revolver Loan Note is one of the Revolver Loan Notes referred
to in the Credit Agreement dated as of September 8, 1995 among the Borrower,
the Banks listed on the signature pages thereof and Wachovia Bank of Georgia,
N.A., as Agent (as the same may be amended and modified from time to time, the
"Credit Agreement"). Terms defined in the Credit Agreement are used herein
with the same meanings. Reference is made to the Credit Agreement for
provisions for the optional and mandatory prepayment and the repayment hereof
and the acceleration of the maturity hereof.
IN WITNESS WHEREOF, the Borrower has caused this Revolver Loan
Note to be duly executed, under seal, by its duly authorized officer as of the
day and year first above written.
TRION, INC. (SEAL)
By:
Title:
<PAGE>
Revolver Loan Note (cont'd)
REVOLVER LOANS AND PAYMENTS OF PRINCIPAL
Base Rate Amount Amount of
or Euro- of Principal Maturity Notation
Date Dollar Loan Loan Repaid Date Made By
<PAGE>
EXHIBIT A-2
TERM LOAN NOTE
Atlanta, Georgia
September 8, 1995
For value received, TRION, INC., a Pennsylvania corporation (the
"Borrower"), promises to pay to the order of
__________________________________________________, a ____________________
(the "Bank"), for the account of its Lending Office, the principal sum of
___________________________________ AND NO/100 DOLLARS ($ ), or
such lesser amount as shall equal the unpaid principal amount of each Loan
made by the Bank to the Borrower pursuant to the Credit Agreement referred to
below, on the dates and in the amounts provided in the Credit Agreement. The
Borrower promises to pay interest on the unpaid principal amount of this Term
Loan Note on the dates and at the rate or rates provided for in the Credit
Agreement. Interest on any overdue principal of and, to the extent permitted
by law, overdue interest on the principal amount hereof shall bear interest at
the Default Rate, as provided for in the Credit Agreement. All such payments
of principal and interest shall be made in lawful money of the United States
in Federal or other immediately available funds at the office of Wachovia Bank
of Georgia, N.A., 191 Peachtree Street, N.E., Atlanta, Georgia 30303-1757, or
such other address as may be specified from time to time pursuant to the
Credit Agreement.
All Term Loan Advances and the Drawdown Date therefor, and all
Loans made by the Bank, the respective maturities thereof, the interest rates
from time to time applicable thereto, and all repayments of the principal
thereof shall be recorded by the Bank and, prior to any transfer hereof,
endorsed by the Bank on the schedules attached hereto, or on a continuation of
such schedules attached to and made a part hereof; provided that the failure
of the Bank to make any such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under the Credit Agreement.
This Term Loan Note is one of the Term Loan Notes referred to in
the Credit Agreement dated as of September 8, 1995 among the Borrower, the
Banks listed on the signature pages thereof and Wachovia Bank of Georgia,
N.A., as Agent (as the same may be amended and modified from time to time, the
"Credit Agreement"). Terms defined in the Credit Agreement are used herein
with the same meanings. Reference is made to the Credit Agreement for
provisions for the optional and mandatory prepayment and the repayment hereof
and the acceleration of the maturity hereof.
IN WITNESS WHEREOF, the Borrower has caused this Term Loan Note to
be duly executed, under seal, by its duly authorized officer as of the day and
year first above written.
TRION, INC. (SEAL)
By:
Title:
<PAGE>
Term Loan Note (cont'd)
SCHEDULE OF TERM LOAN ADVANCES
Amount Drawdown Date
LOANS AND PAYMENTS OF PRINCIPAL
Base Rate Amount Amount of
or Euro- of Principal Maturity Notation
Date Dollar Loan Loan Repaid Date Made By
Term Loan Note (Cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
Base Rate Amount Amount of
or Euro- of Principal Maturity Notation
Date Dollar Loan Loan Repaid Date Made By
<PAGE>
<PAGE>
EXHIBIT B
OPINION OF
COUNSEL FOR THE BORROWER
[Dated as provided in Section
3.01 of the Credit Agreement]
To the Banks and the Agent
Referred to Below
c/o Wachovia Bank of Georgia, N.A.,
as Agent
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Attn: Syndications Group
Dear Sirs:
We have acted as counsel for Trion, Inc., a Pennsylvania
corporation (the "Borrower") and for [describe Guarantors] (collectively, the
Guarantors) in connection with the Credit Agreement (the "Credit Agreement")
dated as of September 8, 1995, among the Borrower, the banks listed on the
signature pages thereof and Wachovia Bank of Georgia, N.A., as Agent. Terms
defined in the Credit Agreement are used herein as therein defined.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as we have deemed necessary or advisable
for purposes of this opinion. We have assumed for purposes of our opinions
set forth below that the execution and delivery of the Credit Agreement by
each Bank and by the Agent have been duly authorized by each Bank and by the
Agent.
Upon the basis of the foregoing, we are of the opinion that:
1. The Borrower is a corporation duly incorporated, validly
existing and in good standing under the laws of the Commonwealth of
Pennsylvania and has all corporate powers required to carry on its business as
now conducted.
2. The execution, delivery and performance by the Borrower of
the Credit Agreement, the Notes and the Contribution Agreement by the Borrower
and of the Guaranty and the Contribution Agreement by the Guarantors (i) are
within the Borrower's and Guarantors' respective corporate powers, (ii) have
been duly authorized by all necessary corporate action, (iii) require no
action by or in respect of, or filing with, any governmental body, agency or
official, (iv) do not contravene, or constitute a default under, any provision
of applicable law or regulation or of the certificate of incorporation or
by-laws of the Borrower or any Guarantor or of any agreement, judgment,
injunction, order, decree or other instrument which to our knowledge is
binding upon the Borrower or any Guarantor and (v) to our knowledge, except as
provided in the Credit Agreement, do not result in the creation or imposition
of any Lien on any asset of the Borrower or any of its Subsidiaries.
3. Each of the Credit Agreement, the Contribution Agreement and
the Guaranty constitutes a valid and binding agreement of the Borrower and the
Guarantors, as applicable, enforceable against the Borrower and the
Guarantors, respectively, in accordance with its terms, and the Notes
constitute valid and binding obligations of the Borrower, enforceable in
accordance with their respective terms, except as such enforceability may be
limited by: (i) bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally and (ii) general principles of
equity.
4. To our knowledge, there is no action, suit or proceeding
pending, or threatened, against or affecting the Borrower or any of its
Subsidiaries before any court or arbitrator or any governmental body, agency
or official in which there is a reasonable possibility of an adverse decision
which could materially adversely affect the business, consolidated financial
position or consolidated results of operations of the Borrower and its
Consolidated Subsidiaries, considered as a whole, or which in any manner
questions the validity or enforceability of the Credit Agreement, any Note,
the Contribution Agreement or the Guaranty.
5. Each of the Borrower's Subsidiaries is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation, and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals required to
carry on its business as now conducted.
6. Neither the Borrower nor any of its Subsidiaries is an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
7. Neither the Borrower nor any of its Subsidiaries is a
"holding company", or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company", as such terms are defined in the Public Utility Holding Company Act
of 1935, as amended.
We are qualified to practice in the Commonwealth of Pennsylvania and do
not purport to be experts on any laws other than the laws of the United States
and the Commonwealth of Pennsylvania and this opinion is rendered only with
respect to such laws. We have made no independent investigation of the laws
of any other jurisdiction.
This opinion is delivered to you in connection with the transaction
referenced above and may only be relied upon by you, any Assignee, Participant
or other Transferee under the Credit Agreement, and Jones, Day, Reavis & Pogue
without our prior written consent.
Very truly yours,
<PAGE>
<PAGE>
EXHIBIT C
OPINION OF
JONES, DAY, REAVIS & POGUE, SPECIAL COUNSEL
FOR THE AGENT
[Dated as provided in Section
3.01 of the Credit Agreement]
To the Banks and the Agent
Referred to Below
c/o Wachovia Bank of Georgia, N.A.,
as Agent
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Attn: Syndications Group
Dear Sirs:
We have participated in the preparation of the Credit Agreement
(the "Credit Agreement") dated as of September 8, 1995, among Trion, Inc., a
Pennsylvania corporation (the "Borrower"), the banks listed on the signature
pages thereof (the "Banks") and Wachovia Bank of Georgia, N.A., as Agent (the
"Agent"), and have acted as special counsel for the Agent for the purpose of
rendering this opinion pursuant to Section 3.01(d) of the Credit Agreement.
Terms defined in the Credit Agreement are used herein as therein defined.
This opinion letter is limited by, and is in accordance with, the
January 1, 1992 edition of the Interpretive Standards applicable to Legal
Opinions to Third Parties in Corporate Transactions adopted by the Legal
Opinion Committee of the Corporate and Banking Law Section of the State Bar of
Georgia which Interpretive Standards are incorporated herein by this
reference.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as we have deemed necessary or advisable
for purposes of this opinion.
Upon the basis of the foregoing, and assuming the due
authorization, execution and delivery of the Credit Agreement, each of the
Notes and the Contribution Agreement by or on behalf of the Borrower, and the
Guaranty and the Contribution Agreement by each Guarantor, we are of the
opinion that each of the Credit Agreement, the Contribution Agreement and the
Guaranty constitutes a valid and binding agreement of the Borrower and each
Guarantor, as applicable, and each Note constitutes valid and binding
obligations of the Borrower, in each case enforceable in accordance with its
terms except as: (i) the enforceability thereof may be affected by bankruptcy,
insolvency, reorganization, fraudulent conveyance, voidable preference,
moratorium or similar laws applicable to creditors' rights or the collection
of debtors' obligations generally; (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability; and (iii) the enforceability of certain of the
remedial, waiver and other provisions of the Credit Agreement, the Notes, the
Guaranty and the Contribution Agreement may be further limited by the laws of
the State of Georgia; provided that such additional laws do not, in our
opinion, substantially interfere with the practical realization of the
benefits expressed in the Credit Agreement and the Notes, except for the
economic consequences of any procedural delay which may result from such laws.
In giving the foregoing opinion, we express no opinion as to the effect
(if any) of any law of any jurisdiction except the State of Georgia. We
express no opinion as to the effect of the compliance or noncompliance of the
Agent or any of the Banks with any state or federal laws or regulations
applicable to the Agent or any of the Banks by reason of the legal or
regulatory status or the nature of the business of the Agent or any of the
Banks.
This opinion is delivered to you in connection with the transaction
referenced above and may only be relied upon by you and any Assignee,
Participant or other Transferee under the Credit Agreement without our prior
written consent.
Very truly yours,
<PAGE>
<PAGE>
EXHIBIT D
ASSIGNMENT AND ACCEPTANCE
Dated , 19
Reference is made to the Credit Agreement dated as of September 8,
1995 (together with all amendments and modifications thereto, the "Credit
Agreement") among Trion, Inc. , a Pennsylvania corporation (the "Borrower"),
the Banks (as defined in the Credit Agreement) and Wachovia Bank of Georgia,
N.A., as Agent (the "Agent"). Terms defined in the Credit Agreement are used
herein with the same meaning.
(the "Assignor") and
(the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee,
without recourse to the Assignor, and the Assignee hereby purchases and
assumes from the Assignor, a % interest in and to all of the Assignor's
rights and obligations under the Credit Agreement as of the Effective Date (as
defined below) (including, without limitation, a % interest (which on the
Effective Date hereof is $__________) in the Assignor's Commitment and a
interest (which on the Effective Date hereof is $ ) in the
Revolver Loans and Term Loans owing to the Assignor and a % interest in the
Revolver Loan Notes and the Term Loan Notes held by the Assignor (which on the
Effective Date hereof is $__________ and $__________, respectively).
2. The Assignor (i) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Credit Agreement or any other instrument or document furnished
pursuant thereto, other than that it is the legal and beneficial owner of the
interest being assigned by it hereunder, that such interest is free and clear
of any adverse claim and that as of the date hereof its Revolver Loan
Commitment and Term Loan Commitment (without giving effect to assignments
thereof which have not yet become effective) is $__________ and $__________,
respectively, and the aggregate outstanding principal amount of Revolver Loans
and Term Loans owing to it (without giving effect to assignments thereof which
have not yet become effective) is $____________ and $____________,
respectively; (ii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its obligations under the
Credit Agreement or any other instrument or document furnished pursuant
thereto; and (iii) attaches the Notes referred to in paragraph 1 above and
requests that the Agent exchange such Notes for [a new Revolver Loan Note
dated , in the principal amount of $__________ payable to
the order of the Assignee and a new Term Loan Note dated ___________, ____ in
the principal amount of $______________ payable to the order of the Assignee]
[new Notes as follows: a (i) Revolver Loan Note dated ,
in the principal amount of $ payable to the order of the Assignor
(ii) Revolver Loan Note dated , in the principal amount of $
payable to the order of the Assignee, (iii) a new Term Loan Note
dated ___________, ____ in the principal amount of $______________ payable to
the order of the Assignor and (iii) a new Term Loan Note dated ___________,
____ in the principal amount of $______________ payable to the order of the
Assignee].
3. The Assignee (i) confirms that it has received a copy of the
Credit Agreement, the Guaranty and the Contribution Agreement, together with
copies of the financial statements referred to in Section 4.04(a) of the
Credit Agreement (or any more recent financial statements of the Borrower
delivered pursuant to Section 5.01(a) or (b) of the Credit Agreement) and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment and Acceptance;
(ii) agrees that it will, independently and without reliance upon the Agent,
the Assignor or any other Bank and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Credit Agreement; (iii)
confirms that it is a bank or financial institution; (iv) appoints and
authorizes the Agent to take such action as agent on its behalf and to
exercise such powers under the Credit Agreement as are delegated to the Agent
by the terms thereof, together with such powers as are reasonably incidental
thereto; (v) agrees that it will perform in accordance with their terms all of
the obligations which by the terms of the Credit Agreement are required to be
performed by it as a Bank; (vi) specifies as its Lending Office (and address
for notices) the office set forth beneath its name on the signature pages
hereof, (vii) represents and warrants that the execution, delivery and
performance of this Assignment and Acceptance are within its corporate powers
and have been duly authorized by all necessary corporate action, (viii) makes
the representation and warranty contained in Section 9.18 of the Credit
Agreement[, and (ix) attaches the forms prescribed by the Internal Revenue
Service of the United States certifying as to the Assignee's status for
purposes of determining exemption from United States withholding taxes with
respect to all payments to be made to the Assignee under the Credit Agreement
and the Notes or such other documents as are necessary to indicate that all
such payments are subject to such taxes at a rate reduced by an applicable tax
treaty].
4. The Effective Date for this Assignment and Acceptance shall
be , 19 (the "Effective Date"). Following the execution of this
Assignment and Acceptance, it will be delivered to the Agent for execution and
acceptance by the Agent and to the Borrower for execution by the Borrower.
5. Upon such execution and acceptance by the Agent, from and after
the Effective Date, (i) the Assignee shall be a party to the Credit Agreement
and, to the extent rights and obligations have been transferred to it by this
Assignment and Acceptance, have the rights and obligations of a Bank
thereunder and (ii) the Assignor shall, to the extent its rights and
obligations have been transferred to the Assignee by this Assignment and
Acceptance, relinquish its rights (other than under Sections 8.03, 9.03 and
9.04 of the Credit Agreement) and be released from its obligations under the
Credit Agreement.
6. Upon such execution and acceptance by the Agent, from and after
the Effective Date, the Agent shall make all payments in respect of the
interest assigned hereby to the Assignee. The Assignor and Assignee shall
make all appropriate adjustments in payments for periods prior to such
acceptance by the Agent directly between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of North Carolina.
[NAME OF ASSIGNOR]
By:
Title:
[NAME OF ASSIGNEE]
By:
Title:
Lending Office:
[Address]
<PAGE>
WACHOVIA BANK OF GEORGIA, N.A.,
As Agent
By:
Title:
TRION, INC. (SEAL)
By:
Title:
<PAGE>
<PAGE>
EXHIBIT E
NOTICE OF BORROWING
, 199
Wachovia Bank of Georgia, N.A., as Agent
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Attention: Syndications Group
Re: Credit Agreement (as amended and modified from time to time, the
"Credit Agreement") dated as of September 8, 1995 by and among
Trion, Inc., the Banks from time to time parties thereto, and
Wachovia Bank of Georgia, N.A., as Agent.
Gentlemen:
Unless otherwise defined herein, capitalized terms used herein shall
have the meanings attributable thereto in the Credit Agreement.
This Notice of Borrowing is delivered to you pursuant to Section 2.02 of
the Credit Agreement.
The Borrower hereby requests a [Euro-Dollar Borrowing] [Base Rate
Borrowing] [Term Loan Borrowing] in the aggregate principal amount of $
to be made on , 199 , and for interest to accrue thereon at
the rate established by the Credit Agreement for [Euro-Dollar Loans] [Base
Rate Loans]. The duration of the Interest Period with respect thereto shall
be [1 month] [2 months] [3 months] [6 months] [30 days].
The Borrower has caused this Notice of Borrowing to be executed and
delivered by its duly authorized officer this day of , 199
.
TRION, INC.
By:
Title:
<PAGE>
<PAGE>
EXHIBIT F
COMPLIANCE CERTIFICATE
Reference is made to the Credit Agreement dated as of September 8,
1995 (as modified and supplemented and in effect from time to time, the
"Credit Agreement") among Trion, Inc., the Banks from time to time parties
thereto, and Wachovia Bank of Georgia, N.A., as Agent. Capitalized terms used
herein shall have the meanings ascribed thereto in the Credit Agreement.
Pursuant to Section 5.01(c) of the Credit Agreement,
, the duly authorized of Trion, Inc.,
hereby (i) certifies to the Agent and the Banks that the information contained
in the Compliance Check List attached hereto is true, accurate and complete as
of , , and that no Default is in existence on and as of the
date hereof and (ii) restates and reaffirms that the representations and
warranties contained in Article IV of the Credit Agreement are true on and as
of the date hereof as though restated on and as of this date.
TRION, INC.
By:
Title:
<PAGE>
COMPLIANCE CHECK LIST
TRION, INC.
,
1. Loans and Advances (Section 5.16)
Neither the Borrower nor any of its Subsidiaries shall make loans or
advances to any Person except as permitted by Section 5.17 and except:
(i) loans or advances to employees not exceeding $100,000 in the
aggregate principal amount outstanding at any time, in each case made in
the ordinary course of business and consistent with practices existing on
March 31, 1995; (ii) deposits required by government agencies or public
utilities; (iii) loans or advances from the Borrower to any Guarantor or
from any Guarantor to any other Guarantor; (iv) accounts receivable
outstanding in the ordinary course of business owed to the Borrower for
the sale of its inventory, and (v) solely after compliance with Section
5.24 with respect to each Foreign Significant Subsidiary to which loans
or advances shall be made, loans or advances from the Borrower to Foreign
Significant Subsidiaries in the aggregate outstanding at any time not
exceeding 10% of the Borrower's Consolidated Net Worth; provided that
after giving effect to the making of any loans, advances or deposits
permitted by this Section, the Borrower will be in full compliance with
all the provisions of this Agreement.
(a) To Employees $
Limitation $100,00
(b) To Foreign Significant
Subsidiaries $
Limitation (10% of Consolidated
Net Worth) $
2. Negative Pledge (Section 5.18)
Neither the Borrower nor any Consolidated Subsidiary will create, assume
or suffer to exist any Lien on any asset now owned or hereafter acquired
by it, except: [ . . .]; Provided Liens permitted by the foregoing
paragraphs (b), (c), (d) and (g) shall at no time secure Debt in an
aggregate amount greater than 10% of Consolidated Net Worth.
None of the Borrower's or any Consolidated Subsidiary's property is
subject to any Lien securing Debt which is permitted by paragraphs (b),
(c), (d) and (g) of Section 5.18, except for:
Description of Lien and Property Amount of Debt
subject to same Secured
a. ___________________________ $_____________
b. ___________________________ $_____________
c. ___________________________ $_____________
d. ___________________________ $_____________
e. ___________________________ $_____________
f. ___________________________ $_____________
Total $
Limitation (10% of Consolidated Net Worth) $_____________
3. Fixed Charges Coverage (Section 5.19)
At the end of each Fiscal Quarter, commencing with the Fiscal Quarter
ending September 30, 1995, the ratio of EBILT to Consolidated Fixed
Charges for the Fiscal Quarter just ended and the immediately preceding 3
Fiscal Quarters shall be greater than 3.5 to 1.0.
(a) EBILT Schedule - 1 $
(b) Consolidated Fixed Charges Schedule - 1 $
Actual Ratio of (a) to (b)
Minimum Ratio 3.5 to 1.0
4. Ratio of Consolidated Funded Debt to Consolidated Total Capital (Section
5.20)
The ratio of Consolidated Funded Debt to Consolidated Total Capital will
not at any time exceed 0.50 to 1.00.
(a) Consolidated Funded Debt Schedule - 2 $
(b) Consolidated Total Capital $
Actual Ratio of (a) to (b)
Maximum Ratio 0.50 to 1.0
5. Ratio of Consolidated Funded Debt to Consolidated Cash Flow (Section
5.21)
<PAGE>
COMPLIANCE CHECK LIST
TRION, INC.
,
The ratio of Consolidated Funded Debt to Consolidated Cash Flow will not
at any time exceed 4.0 to 1.00.
(a) Consolidated Funded Debt Schedule - 2 $
(b) Consolidated Cash Flow Schedule - 3 $
6. Minimum Consolidated Net Worth (Section 5.22)
Consolidated Net Worth will at no time be less than $17,000,000 plus the
sum of (i) 50% of the cumulative Consolidated Net Income of the Borrower
and its Consolidated Subsidiaries during any period after September 30,
1995 (taken as one accounting period), calculated quarterly at the end of
each Fiscal Quarter but excluding from such calculations of Consolidated
Net Income for purposes of this clause (i), any quarter in which the
Consolidated Net Income of the Borrower and its Consolidated Subsidiaries
is negative, plus (ii) 100% of the cumulative proceeds of from the sale
of any Capital Stock received during any period after the Closing Date,
plus (iii) 100% of the amount of any Capital Stock issued in exchange for
the cancellation or conversion of Debt after the Closing Date, calculated
quarterly at the end of each Fiscal Quarter.
(a) $17,000,000
(b) 50% of positive Consolidated
Net Income after Closing Date $__________
(c) 100% of cumulative proceeds
of Capital Stock after Closing Date $__________
(d) 100% of Capital Stock issued in
exchange for Debt after the Closing Date $__________
Actual Consolidated Net Worth $__________
Required Consolidated Net
Worth (sum of (a) plus (b) plus (c)
less (d) $__________
<PAGE>
Schedule - 1
EBILT
(a) Consolidated Net Income for:
quarter - $
quarter - $
quarter - $
quarter - $
Total $
(b) Income taxes for:
quarter - $
quarter - $
quarter - $
quarter - $
Total $
(c) Consolidated Interest Expense for:
quarter - $
quarter - $
quarter - $
quarter - $
Total $
<PAGE>
(d) Operating Leases and Rentals for:
quarter - $
quarter - $
quarter - $
quarter - $
Total $
Total EBILT $
CONSOLIDATED FIXED CHARGES
sum of (c) plus (d) $
<PAGE>
Schedule - 2
CONSOLIDATED FUNDED DEBT
INTEREST
RATE MATURITY TOTAL
Indebtedness for Borrowed Money
$
$
$
$
$
Total $
Capital Leases
$
$
$
$
Total $
Guarantees
$
$
Total $
Total Consolidated Funded Debt $
<PAGE>
Schedule - 3
CONSOLIDATED CASH FLOW
Consolidated Net Income for:
quarter - $
quarter - $
quarter - $
quarter - $
Total $
Depreciation for:
quarter - $
quarter - $
quarter - $
quarter - $
Total $
Amortization for:
quarter - $
quarter - $
quarter - $
quarter - $
Total $
Other non-cash charges for:
quarter - $
quarter - $
quarter - $
quarter - $
Total $
Total Consolidated Cash Flow $__________<PAGE>
<PAGE>
EXHIBIT G
TRION, INC.
CLOSING CERTIFICATE
Reference is made to the Credit Agreement (the "Credit Agreement") dated
as of September 8, 1995, among Trion, Inc., the Banks listed therein, and
Wachovia Bank of Georgia, N.A., as Agent. Capitalized terms used herein have
the meanings ascribed thereto in the Credit Agreement.
Pursuant to Section 3.01(e) of the Credit Agreement,
, the duly authorized of Trion, Inc. hereby
certifies to the Agent and the Banks that (i) no Default has occurred and is
continuing as of the date hereof, and (ii) the representations and warranties
contained in Article IV of the Credit Agreement are true on and as of the date
hereof.
Certified as of this 8th day of September, 1995.
By:
Printed Name:
Title:
<PAGE>
EXHIBIT H
September 8, 1995
Wachovia Bank of Georgia ,N.A.
191 Peachtree Street, N.E.
Atlanta, GA 30303-1757
Facsimile: 404-332-4005
Telephone: 404-332-6454
Attention: Syndications Group
Re: Proposed term loan credit facilities in the amount of $18,000,000
(the "Proposed Credit Facilities") to be entered into pursuant to Credit
Agreement dated as of September 8, 1995 among Trion, Inc., a Pennsylvania
corporation, the Banks listed therein and Wachovia Bank of Georgia, N.A., as
Agent, in substantially the form of the draft thereof dated September 8,
1995 (the "Draft Credit Agreement"; capitalized terms which are used but not
defined herein have the meanings given them in the Draft Credit Agreement)
Gentlemen:
It is anticipated that the Proposed Credit Facilities will close on or
about September 8, 1995, and that the only Bank will be Wachovia Bank of North
Carolina, N.A. (collectively, the "Proposed Bank"). Section 2.02 of the
Proposed Credit Agreement generally requires that Notices of Borrowing be given
at least 3 Euro-Dollar Business Days before each Euro-Dollar Borrowing. The
Borrower would like to have the opportunity to obtain Euro-Dollar Borrowings
on the Closing Date for the initial [Revolver Loan advance] [Term Loan
Advance], but could of course not comply with such notice provisions with
respect thereto.
The Borrower hereby requests that the Agent and the Proposed Bank, on
a one-time basis only, waive the aforesaid notice provisions, and permit the
Borrower to obtain Euro-Dollar Borrowings on the Closing Date in such amounts,
and for such Interest Periods, as have been agreed to by the Borrower and the
Agent and notified to the Proposed Bank (the "Agreed Initial Closing Date
Euro-Dollar Borrowings") by September 8, 1995 (the "Proposed Closing Date"), and
in consideration thereof, and for other good and valuable consideration, the
receipt of which hereby is acknowledged, to pay to and indemnify and hold
harmless each of the Proposed Bank with respect to such amount or amounts as
shall compensate the Proposed Bank for any loss, cost or expense incurred by
the Proposed Bank as a result of any failure of (i) the Proposed Credit
Facilities to close, or (ii) Borrowers to borrow any of the Agreed Initial
Closing Date Euro-Dollar Rate Borrowings on the Proposed Closing Date.
This indemnification letter is executed and delivered to Wachovia Bank
of Georgia, N.A. as proposed Agent under the Proposed Credit Facilities, but for
the benefit of the Proposed Bank, and the Proposed Bank shall be entitled to
rely on and directly enforce the terms and provisions hereof.
Sincerely,
TRION, INC.
By:
Title:
<PAGE>
EXHIBIT I
FORM OF GUARANTY AGREEMENT
GUARANTY
THIS GUARANTY (this "Guaranty") is made as of the 8th day of September
1995 , by [insert names of Significant Subsidiaries as of the Closing Date],
each a [North Carolina] corporation (each a "Guarantor", and collectively, the
"Guarantors", which terms shall include any Significant Subsidiary of Trion,
Inc. which becomes a Guarantor pursuant to Section 15 hereof and Section 5.23
of the Credit Agreement referred to below) in favor of the Agent, for the
ratable benefit of the Banks, under the Credit Agreement referred to below;
W I T N E S S E T H
WHEREAS, TRION, INC., a Pennsylvania corporation (the "Borrower"), and
WACHOVIA BANK OF GEORGIA, N.A., as Agent (the "Agent"), and certain other Banks
from time to time party thereto have entered into a certain Credit Agreement
dated as of even date herewith (as it may be amended or modified further from
time to time, the "Credit Agreement"), providing, subject to the terms and
conditions thereof, for extensions of credit to be made by the Banks to the
Borrower which will the benefit the Guarantors;
WHEREAS, it is required by Section 3.01(g) of the Credit Agreement,
that the Guarantors execute and deliver this Guaranty whereby the Guarantors
shall guarantee the payment when due of all principal, interest and other
amounts that shall be at any time payable by the Borrower under the Credit
Agreement, the Notes and the other Loan Documents; and
WHEREAS, in consideration of the financial and other support that the
Borrower has provided, and such financial and other support as the Borrower
may in the future provide, to the Guarantors, whether directly or indirectly,
and in order to induce the Banks and the Agent to enter into the Credit
Agreement, the Guarantors are willing to guarantee the obligations of the
Borrower under the Credit Agreement, the Notes, and the other Loan Documents;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. Definitions. Terms defined in the Credit Agreement and
not otherwise defined herein have, as used herein, the respective meanings
provided for therein.
SECTION 2. Representations and Warranties. The Guarantors
incorporate herein by reference as fully as if set forth herein all of the
representations and warranties pertaining to and by their terms applicable to
the Guarantors contained in Article IV of the Credit Agreement (which
representations and warranties shall be deemed to have been renewed by the
Guarantors upon each Borrowing under the Credit Agreement).
SECTION 3. Covenants. The Guarantors covenant that, so long as any
Bank has any Commitment outstanding under the Credit Agreement or any amount
payable under the Credit Agreement or any Note shall remain unpaid, the
Guarantors will fully comply with those covenants set forth in Article V of the
Credit Agreement pertaining to and by their terms applicable to the Guarantors,
and the Guarantors incorporate herein by reference as fully as if set forth
herein all of such covenants.
SECTION 4. The Guaranty. The Guarantors hereby unconditionally and
jointly and severally guarantee the full and punctual payment (whether at stated
maturity, upon acceleration or otherwise) of the principal of and interest on
each Note issued by the Borrower pursuant to the Credit Agreement, and the full
and punctual payment of all other amounts payable by the Borrower under the
Credit Agreement (including, without limitation, all Loans and interest thereon,
and all compensation and indemnification amounts and fees payable pursuant to
the Credit Agreement (all of the foregoing obligations being referred to
collectively as the "Guaranteed Obligations"). Upon failure by the Borrower to
pay punctually any such amount, each of the Guarantors agrees that it shall
forthwith on demand pay the amount not so paid at the place and in the manner
specified in the Credit Agreement, the relevant Note or the relevant Loan
Document, as the case may be.
SECTION 5. Guaranty Unconditional. The obligations of the Guarantors
hereunder shall be unconditional and absolute and, without limiting the
generality of the foregoing, shall not be released, discharged or otherwise
affected by:
(i) any extension, renewal, settlement, compromise,
waiver or release in respect of any obligation of the Borrower
under the Credit Agreement, any Note, or any other Loan Document,
by operation of law or otherwise or any obligation of any other
guarantor of any of the Guaranteed Obligations;
(ii) any modification or amendment of or supplement to
the Credit Agreement, any Note, or any other Loan Document;
(iii) any release, nonperfection or invalidity of any
direct or indirect security for any obligation of the Borrower
under the Credit Agreement, any Note, any Loan Document, or any
obligations of any other guarantor of any of the Guaranteed
Obligations;
(iv) any change in the corporate structure or
ownership of the Borrower or corporate structure or ownership of
any other Guarantor or any other guarantor of any of the Guaranteed
Obligations, or any insolvency, bankruptcy, reorganization or other
similar proceeding affecting the Borrower, or any other Guarantor
or any other guarantor of the Guaranteed Obligations, or its assets
or any resulting release or discharge of any obligation of the
Borrower, or any other Guarantor or any other guarantor of any of
the Guaranteed Obligations;
(v) the existence of any claim, setoff or other rights
which the Guarantors may have at any time against the Borrower, any
other Guarantor or any other guarantor of any of the Guaranteed
Obligations, the Agent, any Bank or any other Person, whether in
connection herewith or any unrelated transactions, provided that
nothing herein shall prevent the assertion of any such claim by
separate suit or compulsory counterclaim;
(vi) any invalidity or unenforceability relating to or
against the Borrower, or any other Guarantor or any other guarantor
of any of the Guaranteed Obligations, for any reason related to the
Credit Agreement, any other Loan Document, or any other Guaranty,
or any provision of applicable law or regulation purporting to
prohibit the payment by the Borrower, or any other Guarantor or any
other guarantor of the Guaranteed Obligations, of the principal of
or interest on any Note or any other amount payable by the Borrower
under the Credit Agreement, the Notes, or any other Loan Document;
or
(vii) any other act or omission to act or delay of any
kind by the Borrower, any other Guarantor or any other guarantor of
the Guaranteed Obligations, the Agent, any Bank or any other Person
or any other circumstance whatsoever which might, but for the
provisions of this paragraph, constitute a legal or equitable
discharge of the Guarantors' obligations hereunder.
SECTION 6. Discharge Only Upon Payment In Full; Reinstatement In
Certain Circumstances. The Guarantors' obligations hereunder shall remain in
full force and effect until all Guaranteed Obligations shall have been paid in
full and the Commitments under the Credit Agreement shall have terminated or
expired. If at any time any payment of the principal of or interest on any
Note or any other amount payable by the Borrower under the Credit Agreement or
any other Loan Document is rescinded or must be otherwise restored or returned
upon the insolvency, bankruptcy or reorganization of the Borrower or
otherwise, the Guarantors' obligations hereunder with respect to such payment
shall be reinstated as though such payment had been due but not made at such
time.
SECTION 7. Waiver of Notice by the Guarantors. The Guarantors
irrevocably waive acceptance hereof, presentment, demand, protest and, to the
fullest extent permitted by law, any notice not provided for herein, as well
as any requirement that at any time any action be taken by any Person against
the Borrower, any other Guarantor or any other guarantor of the Guaranteed
Obligations, or any other Person.
SECTION 8. Stay of Acceleration. If acceleration of the time for
payment of any amount payable by the Principal under the Credit Agreement, any
Note or any other Loan Document is stayed upon the insolvency, bankruptcy or
reorganization of the Borrower, all such amounts otherwise subject to
acceleration under the terms of the Credit Agreement, any Note or any other
Loan Document shall nonetheless be payable by the Guarantors hereunder
forthwith on demand by the Agent made at the request of the Required Banks.
SECTION 9. Notices. All notices, requests and other
communications to any party hereunder shall be given or made by telecopier or
other writing and telecopied or mailed or delivered to the intended recipient
at its address or telecopier number set forth on the signature pages hereof or
such other address or telecopy number as such party may hereafter specify for
such purpose by notice to the Agent in accordance with the provisions of
Section 9.01 of the Credit Agreement. Except as otherwise provided in this
Guaranty, all such communications shall be deemed to have been duly given when
transmitted by telecopier, or personally delivered or, in the case of a mailed
notice, 3 Domestic Business Days after such communication is deposited in the
mails with first class postage prepaid, in each case given or addressed as
aforesaid.
SECTION 10. No Waivers. No failure or delay by the Agent or any
Banks in exercising any right, power or privilege hereunder shall operate as a
waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies provided in this Guaranty, the Credit
Agreement, the Notes, and the other Loan Documents shall be cumulative and not
exclusive of any rights or remedies provided by law.
SECTION 11. Successors and Assigns. This Guaranty is for the
benefit of the Agent and the Banks and their respective successors and assigns
and in the event of an assignment of any amounts payable under the Credit
Agreement, the Notes, or the other Loan Documents, the rights hereunder, to
the extent applicable to the indebtedness so assigned, may be transferred with
such indebtedness. This Guaranty may not be assigned by the Guarantors without
the prior written consent of the Agent and the Required Banks, and shall be
binding upon the Guarantors and their respective successors and permitted
assigns.
SECTION 12. Changes in Writing. Neither this Guaranty nor any
provision hereof may be changed, waived, discharged or terminated orally, but
only in writing signed by the Guarantors and the Agent, with the consent of
the Required Banks.
SECTION 13. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF
JURY TRIAL. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAW OF THE STATE OF NORTH CAROLINA. EACH OF THE GUARANTORS AND THE
AGENT HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA AND OF ANY GEORGIA STATE
COURT SITTING IN ATLANTA, GEORGIA AND FOR PURPOSES OF ALL LEGAL PROCEEDINGS
ARISING OUT OF OR RELATING TO THIS GUARANTY OR THE TRANSACTIONS CONTEMPLATED
HEREBY. THE GUARANTORS IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY
LAW, ANY OBJECTION WHICH ANY OF THEM MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT
ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. EACH OF THE GUARANTORS AND THE Agent HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR
THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 14. Taxes, etc. All payments required to be made by the
Guarantors hereunder shall be made without setoff or counterclaim and free and
clear of and without deduction or withholding for or on account of, any
present or future taxes, levies, imposts, duties or other charges of
whatsoever nature imposed by any government or any political or taxing
authority pursuant and subject to the provisions of Section 2.11(c) of the
Credit Agreement, the terms of which are incorporated herein by reference as
to the Guarantors as fully as if set forth herein, and for such purposes, the
rights and obligations of the Borrower under such Section shall devolve to the
Guarantors as to payments required to be made by the Guarantors hereunder.
SECTION 15. Additional Guarantors; Release of Guarantors. Section
5.23 of the Credit Agreement provides that Subsidiaries which are or become
Significant Subsidiaries must become Guarantors, by, among other things,
executing and delivering to the Agent a counterpart of this Guaranty and the
Contribution Agreement. Any Significant Subsidiary which executes and
delivers to the Agent a counterpart of this Guaranty and the Contribution
Agreement shall be a Guarantor for all purposes hereunder. Under certain
circumstances described in paragraph (b) of Section 5.23 of the Credit
Agreement, a Guarantor which is to be sold may obtain from the Agent a written
release from this Guaranty pursuant to the provisions of such paragraph and
upon obtaining such written release, any such former Guarantor shall no longer
be a Guarantor hereunder. Each other Guarantor consents and agrees to any
such release and agrees that no such release shall affect its obligations
hereunder.<PAGE>
IN WITNESS WHEREOF, the Guarantors have caused this Guaranty to be
duly executed, under seal, by their respective authorized officers as of the
date first above written.
[Guarantor] (SEAL)
By:
Title:
Attention:
Telecopier number:
Confirmation number:
[Guarantor] (SEAL)
By:
Title:
Attention:
Telecopier number:
Confirmation number:
[Guarantor] (SEAL)
By:
Title:
Attention:
Telecopier number:
Confirmation number:
<PAGE>
EXHIBIT J
FORM OF CONTRIBUTION AGREEMENT
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT (this "Agreement") is entered into as
of September 8, 1995 by and among Trion, Inc. (the "Borrower") and [insert
names of Significant Subsidiaries as of the Closing Date], each a [North
Carolina] corporation (each a "Subsidiary Guarantor", and collectively, the
"Subsidiary Guarantors"), which terms shall include any Significant Subsidiary
of the Borrower which becomes a Guarantor pursuant to the last paragraph
hereof, Section 15 of the Guaranty referred to below and Section 5.23 of the
Credit Agreement referred to below)). The Borrower and each of the Subsidiary
Guarantors are sometimes hereinafter referred to individually as a
"Contributing Party" and collectively as the "Contributing Parties").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Credit Agreement, dated as of
even date herewith among the Borrower, the Banks party thereto and Wachovia
Bank of Georgia, N.A., as Agent (such agreement, as the same may from time to
time be amended, modified, restated or extended, being hereinafter referred to
as the "Credit Agreement"; capitalized terms used herein shall have the
meanings ascribed thereto in the Credit Agreement), the Banks have agreed to
extend financial accommodations to the Borrower;
WHEREAS, as a condition, among others, to the willingness of the
Agent and the Banks to enter into the Credit Agreement, they have required
that each Subsidiary Guarantor, along with the Borrower, execute and deliver
that certain Guaranty, dated as of even date herewith (such agreement, as the
same may from time to time be amended, modified, restated or extended, being
hereinafter referred to as the "Guaranty"), pursuant to which, among other
things, the Subsidiary Guarantors have jointly and severally agreed to
guarantee the "Guaranteed Obligations" (as defined in the Guaranty); and
WHEREAS, each Subsidiary Guarantor is a direct or indirect
subsidiary of the Borrower and is engaged in businesses related to those of
the Borrower and each other Subsidiary Guarantor, and each of the Subsidiary
Guarantors will derive direct or indirect economic benefit from the
effectiveness and existence of the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, and to induce each Subsidiary Guarantor to enter into
the Guaranty, it is agreed as follows:
To the extent that any Subsidiary Guarantor shall, under the
Guaranty, make a payment (a "Subsidiary Guarantor Payment") of a portion of
the Guaranteed Obligations, then, without limiting its rights of subrogation
against the principal, such Subsidiary Guarantor shall be entitled to
contribution and indemnification from, and be reimbursed by, each of the other
Contributing Parties in an amount, for each such Contributing Party, equal to
a fraction of such Subsidiary Guarantor Payment, the numerator of which
fraction is such Contributing Party's Allocable Amount and the denominator of
which is the sum of the Allocable Amounts of all of the Contributing Parties.
As of any date of determination, the "Allocable Amount" of each
Contributing Party shall be equal to the maximum amount of liability which
could be asserted against such Contributing Party hereunder with respect to
the applicable Subsidiary Guarantor Payment without (i) rendering such
Contributing Party "insolvent" within the meaning of Section 101(31) of the
Federal Bankruptcy Code (the "Bankruptcy Code") or Section 2 of either the
Uniform Fraudulent Transfer Act (the "UFTA") or the Uniform Fraudulent
Conveyance Act (the "UFCA"), (ii) leaving such Contributing Party with
unreasonably small capital, within the meaning of Section 548 of the
Bankruptcy Code or Section 4 of the UFTA or Section 5 of the UFCA, or (iii)
leaving such Contributing Party unable to pay its debts as they become due
within the meaning of Section 548 of the Bankruptcy Code or Section 4 of the
UFTA or Section 6 of the UFCA.
This Agreement is intended only to define the relative rights of
the Contributing Parties, and nothing set forth in this Agreement is intended
to or shall impair the obligations of the Subsidiary Guarantors, jointly and
severally, to pay any amounts, as and when the same shall become due and
payable in accordance with the terms of the Guaranty.
The parties hereto acknowledge that the rights of contribution and
indemnification hereunder shall constitute assets in favor of each Subsidiary
Guarantor to which such contribution and indemnification is owing.
This Agreement shall become effective upon its execution by each of
the Contributing Parties and shall continue in full force and effect and may
not be terminated or otherwise revoked by any Contributing Party until all of
the Guaranteed Obligations shall have been indefeasibly paid in full (in
lawful money of the United States of America) and discharged and the Credit
Agreement and financing arrangements evidenced and governed by the Credit
Agreement shall have been terminated. Each Contributing Party agrees that if,
notwithstanding the foregoing, such Contributing Party shall have any right
under applicable law to terminate or revoke this Agreement, and such
Contributing Party shall attempt to exercise such right, then such termination
or revocation shall not be effective until a written notice of such revocation
or termination, specifically referring hereto and signed by such Contributing
Party, is actually received by each of the other Contributing Parties and by
the Agent at its notice address set forth in the Credit Agreement. Such
notice shall not affect the right or power of any Contributing Party to
enforce rights arising prior to receipt of such written notice by each of the
other Contributing Parties and the Agent. If any Bank grants additional loans
to the Borrower or takes other action giving rise to additional Guaranteed
Obligations after any Contributing Party has exercised any right to terminate
or revoke this Agreement but before the Agent receives such written notice,
the rights of each other Contributing Party to contribution and
indemnification hereunder in connection with any Subsidiary Guarantor Payments
made with respect to such loans or Guaranteed Obligations shall be the same
as if such termination or revocation had not occurred.
Section 5.23 of the Credit Agreement provides that any Subsidiary
which is or becomes a Significant Subsidiaries must become a Guarantor, by,
among other things, executing and delivering to the Agent a counterpart of the
Guaranty and of this Contribution Agreement. Any Significant Subsidiary which
executes and delivers to the Agent a counterpart of the Guaranty and of this
Contribution Agreement shall be a Subsidiary Guarantor for all purposes
hereunder. Under certain circumstances described in paragraph (b) of Section
5.22 of the Credit Agreement, Guarantors which are to be sold may obtain from
the Agent a written release from the Guaranty pursuant to the provisions of
such sentence, and upon obtaining such written release, any such former
Guarantor shall no longer be a Subsidiary Guarantor or Contributing Party
hereunder, and such release shall automatically and without further action
constitute a release by each other Contributing Party of all obligations of
such Subsidiary hereunder. The Borrower and each other Subsidiary Guarantor
consents and agrees to any such release and agrees that no such release shall
affect its obligations hereunder, except as to the former Guarantor so
released.<PAGE>
IN WITNESS WHEREOF, each Contributing Party has executed and
delivered this Agreement, under seal, as of the date first above written.
TRION, INC. (SEAL)
By:
Title:
Trion, Inc.
Attention:
Telecopier number:
Confirmation number:
[Guarantor] (SEAL)
By:
Title:
Attention:
Telecopier number:
Confirmation number:
[Guarantor] (SEAL)
By:
Title:
Attention:
Telecopier number:
Confirmation number:
<PAGE>
[Guarantor] (SEAL)
By:
Title:
Attention:
Telecopier number:
Confirmation number:
<PAGE>
Schedule 4.08
Subsidiaries
Name Jurisdiction of Incorporation
Envirco Corporation New Mexico
Tryon Limited England
Tryon GMBH Germany
Tryon Canada Canada
Tryon International Virgin Islands
EXHIBIT 10.1
December 15, 1995
Trion, Inc.
1996 Management Incentive Plan
The Management Incentive Plan (MIP) is for Trion officers and other key staff
residing in the United States. The Compensation Committee of the Board of
Directors (Committee) will administer the MIP with assistance from the Chief
Executive Officer.
The Committee shall determine annually those persons who will participate in
the MIP. It is anticipated that only those executives who have a significant
and recurring impact on the Company's annual operating results will be
eligible. Based on the present organizational structure, only officers and
other members of the management team will be eligible.
The MIP will be awarded if a minimum working capital hurdle rate is achieved
for the year. This hurdle rate is defined as the twelve-month average of
inventory plus accounts receivable less accounts payable divided by the sales
volume.
The targeted incentive, as a percentage of base salary, will vary by position
and responsibility and may be changed by the Committee from one year to the
next or for organizational changes during the year. Following are the current
relationships:
Target
Incentive Incentive Basis
Percent Company Individual
of Base Performance Performance
President and CEO 50% 100% -
Vice Presidents Sales/Marketing 50% 35% 65%
Vice Presidents 35% 85% 15%
Members of management team 20% 80% 20%
Company performance (consolidated) will be measured and weighted as follows:
Net sales 40%
Income before Taxes 60%
Each objective will be established annually at the beginning of the year.
Individual performance goals will be established by the officer responsible
and the individual after discussions and analyses of current requirements.
Individual goals will be set to enhance achievement of Company goals and will
be weighted accordingly.
The incentive related to each element of the Company's performance will be
earned as follows:
Percentage of
Attainment Incentive Earned
Threshold 0%
Target 100%
Maximum 150%
The amount of incentive earned will be prorated for actual performance between
the threshold and maximum levels.
Performance targets will be established annually at the discretion of the
Compensation Committee with the assistance of the Chief Executive Officer.
Acquisitions made in 1996 are not included.
Extraordinary or unusual events will be excluded from measurement of the
Company and individual performances. The Committee will determine the events
considered extraordinary or unusual and will use generally accepted accounting
principles as a guideline in the determination.
It is anticipated that the incentive will be paid to participants annually
after completion of the audit by independent accountants. If employment is
terminated by reason of death, disability or retirement during the plan year,
the participant will receive a pro rata share of the incentive earned for the
year. For determining the pro rata share, months employed during the year
will be rounded up to the next highest full month. If a participant's
employment is terminated during the plan year for any other reason, pro rata
payment of the incentive will be at the sole discretion of the Committee.
EXHIBIT 10.14
(DATE)
* * * INCENTIVE STOCK OPTION AGREEMENT * * *
* * *AWARD AGREEMENT * * *
PERSONAL AND CONFIDENTIAL
Dear :
I am pleased to confirm that, pursuant to the terms and provisions of the
Trion, Inc. 1995 Incentive Stock Option Plan (the "1995 Plan"), the Board of
Directors has granted you an incentive stock option as defined in the Plan.
This option is intended to be an "incentive stock option" under Section 422A
of the Internal Revenue Code.
This agreement between you and Trion, Inc., entered into and effective (DATE),
is subject to all the terms and conditions set forth in the "1995 Plan", a
reference copy of which is enclosed.
With respect to Article VI of the 1995 Plan (Options):
6.01(a) - Your option right is for _____ shares of Trion, Inc. common
stock;
6.01(b) - The fair market value as quoted by NASDAQ at the close of
trading on (DATE), was $X,XXX per share;
6.03(a) - The term of this option is XXX years from (DATE);
6.03(a) - This option may be exercised only (indicate vesting schedule).
6.04(b) - Payment for shares will be due (indicate method of payment);
and
By the execution of this Agreement and the acceptance of the stock option
hereby granted, you agree that you have none of the rights or privileges of a
shareholder of the Company in respect of any of the shares issuable under the
stock option, and will not acquire the status of a shareholder of the Company
or any rights or privileges as such unless and until certificates representing
such shares shall have been issued and delivered to you.
The grant and exercise of rights hereunder and the obligation of the Company
to sell and deliver shares under the stock option hereby granted shall be
subject to all applicable laws, rules and regulations and to such approvals by
governmental agencies as may be required.
This agreement is delivered to you in two counterparts. Kindly complete the
acceptance in the space below provided in both of such counterparts, retain
one for your file, and return the other to me, whereupon this letter shall
constitute an Incentive Stock Option Agreement between you and the Company all
on the terms above provided, and shall be binding upon and inure to the
benefit of any successor or successors of the Company and your personal
representatives.
Very truly yours,
TRION, INC.
Steven L. Schneider
President and Chief Executive Officer
SLS/gh
Enclosures: copy of Trion, Inc. 1995 Incentive Stock Option Plan;
copy of Trion, Inc. 1995 Stock Incentive Plan Information For
Participants
ACCEPTED AND AGREED ON
This _____ day of _______________, 199___
______________________________________
EXHIBIT 10.15
FIRST AMENDMENT TO STOCK OPTION AGREEMENT
This First Amendment to Stock Option Agreement ("Amendment") is
entered into as of the _____ day of ________________, 1995 by and between
Trion, Inc. (hereinafter called the "Company"), a Pennsylvania corporation,
a
n
d
Steven L. Schneider, a key employee of the Company residing in
Sanford, North Carolina (hereinafter called the "Optionee");
W I T N E S S E T H:
WHEREAS, the Company and the Optionee entered into that certain
Stock Option Agreement, dated as of March 31, 1993 (the "Stock Option
Agreement"); and
WHEREAS, the parties acknowledge that it is desirable, necessary
and appropriate to amend the Stock Option Agreement to provide that all stock
options subject thereto shall be fully vested and immediately exercisable upon
the occurrence of a "Change in Control" (as defined in the Trion, Inc. 1995
Stock Incentive Plan as approved by the Company's shareholders April 18, 1995)
and for certain other purposes;
NOW THEREFORE, for valuable consideration, receipt of which is
hereby acknowledged, and intending to be legally bound hereby, the parties
agree as follows:
1. Definitions. Effective as of the date hereof, Section 1 of
the Stock Option Agreement is amended as follows:
(a) Subsection (d) thereof is amended to read in its entirety as
follows:
"Employment Agreement" means the Amended and Restated Employment
Agreement between the Company and the Optionee of even date with this
First Amendment to Stock Option Agreement. Other capitalized terms that
are not defined herein shall have the meaning assigned to them in the
Employment Agreement; and
(b) Subsection (f) thereof is deleted.
2. Vesting of Stock Options. Effective as of the date hereof, a
new Section 3.4 is added to the Stock Option Agreement that reads in its
entirety as follows:
3.4 Notwithstanding any provision of this Agreement to the
contrary, upon the occurrence of a Change in Control, all of the Stock
Options not then exercisable shall become fully vested and
nonforfeitable and immediately exercisable in full.
3. Termination of Employment. Effective as of the date hereof,
Section 4.1 of the Stock Option Agreement is amended to read in its entirety
as follows:
4.1 (A) Termination. Upon the termination of the Optionee's
employment with the Company other than by reason of the Optionee's death
or disability, the Optionee may, within three months from the Date of
Termination, exercise all or any part of his Stock Options as were
exercisable at the Date of Termination, if such termination is not for
Cause. Any such Stock Options that are not exercised within three
months of the Date of Termination shall expire, and in no event may any
Stock Option be exercised later than the expiration of the Option
Period. If the Optionee's employment is terminated for Cause, the right
of the Optionee to exercise any and all Stock Options shall terminate at
the Date of Termination.
(B) Disability. Upon the termination of the Optionee's
employment with the Company by reason of disability (within the meaning
of the Employment Agreement) the Optionee may, within two years after
the date of disability exercise all or any part of his Stock Options as
were exercisable upon such date of disability. Any such Stock Options
that are not exercised within two years of such date shall expire, and
in no event may any Stock Option be exercised later than the expiration
of the Option Period.
(C) Death. In the event of the death of the Optionee while
employed by the Company or a Subsidiary or within the additional period
of time from the date of the Optionee's Date of Termination and prior to
the expiration of the period provided in subsection (A) or (B) above, to
the extent all or any part of the Stock Options were exercisable as of
the Date of Termination and did not expire during such additional period
and prior to the Optionee's death, the right of the Optionee's legal
representatives to exercise the Stock Options shall expire one year from
the date of the Optionee's death or at the expiration of the Option
Period, whichever is earlier.
4. Notices. Effective as of the date hereof, Section 5.11 B. of
the Stock Option Agreement is amended to provide for the following address for
the Executive: 1706 Wilkins Drive, Sanford, North Carolina 27330.
5. Effect of Amendment. Except as expressly modified hereunder,
the Stock Option Agreement shall remain in full force and effect.
6. Headings. The headings of paragraphs herein are included
solely for convenience of reference and shall not control the meanings or
interpretation of any provisions of this Amendment.
7. Merger. The Stock Option Agreement, as amended by this
Amendment, contains the entire understanding between the parties hereto and
supersedes any prior or contemporary contracts, agreements, understandings
and/or negotiations, whether oral or written.
8. Counterparts. This Amendment may be executed in two or more
counterparts each of which shall be deemed to be an original, but all of which
together shall be deemed to be one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the day and year first above written.
Attest: TRION, INC.
___________________________ By______________________________
Witness: OPTIONEE
___________________________ _______________________________
Steven L. Schneider
EXHIBIT 10.16
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT, made and entered into as of
the _____ day of ________________, 1995 by and between TRION, INC.
(hereinafter called the "Company"), a Pennsylvania corporation with principal
executive offices in Sanford, North Carolina,
a
n
d
STEVEN L. SCHNEIDER, an individual residing in Sanford, North
Carolina (hereinafter called the "Executive");
WITNESSETH THAT:
WHEREAS, the Executive has been employed by the Company as its
President and Chief Executive Officer since May 24, 1993 under an Employment
Agreement dated March 31, 1993 (the "Employment Agreement"); and
WHEREAS, the Company desires to continue such employment and the
Executive desires to continue to serve in the aforesaid capacity under the
amended and restated terms and conditions provided in this Amended and
Restated Agreement; and
WHEREAS, the execution and delivery of this Amended and Restated
Agreement have been duly authorized by the Compensation Committee (the
"Committee") of the Company's Board of Directors (the "Board") and ratified by
the Board;
NOW, THEREFORE, the Company and the Executive, each intending to
be legally bound, hereby mutually covenant and agree as follows:
1. Term. The term of the Executive's employment, which commenced under the
Employment Agreement on May 24, 1993 (the "Commencement Date"), shall continue
through May 24, 1996 under this Amended and Restated Agreement, subject to the
further extension of such term as hereinafter provided and earlier expiration
of such term as provided in Paragraph 5. The term of this Amended and
Restated Agreement shall be extended automatically for one (1) year as of May
24, 1996 and each annual anniversary date thereof unless, no later than ninety
(90) days prior to any such date, either the Board, on behalf of the Company,
or the Executive, gives written notice to the other, in accordance with
Paragraph 12, that the term of this Amended and Restated Agreement shall not
be so extended.
2. Duties. During the period of employment as provided in Paragraph 1
hereof, the Executive shall serve as President and Chief Executive Officer of
the Company and perform all duties consistent with such positions at the
direction of the Board. In addition, the Executive shall serve as a member of
the Board (and of any committees thereof to which the Executive is appointed).
The Executive shall devote his entire time during reasonable business hours
(reasonable sick leave and vacations excepted) and best efforts to fulfill
faithfully, responsibly and satisfactorily his duties hereunder.
3. Base Salary. For services performed by the Executive for the
Company pursuant to this Amended and Restated Agreement during the period of
employment as provided in Paragraph 1 hereof, the Company shall pay the
Executive a base salary of at least $190,000 per year (the "Base Salary"),
subject to review and adjustment by the Board or the Committee and payable in
accordance with the Company's regular practices. Any compensation which may
be paid to the Executive under any additional compensation or incentive plan
of the Company or which may be otherwise authorized from time to time by the
Board (or an appropriate committee thereof) shall be in addition to the Base
Salary to which the Executive shall be entitled under this Amended and
Restated Agreement.
4. Other Benefits. In addition to the Base Salary to be paid to the
Executive pursuant to Paragraph 3 hereof, the Executive shall also be entitled
to the following:
(a) Participation in Plans. The Executive shall be eligible for
participation in any bonus, incentive, stock option or similar plan or program
now in effect or hereafter established by the Company in the same manner and
to the same extent as, and subject to the same criteria pertaining to, other
senior executives of the Company. To the extent he is otherwise qualified to
do so, the Executive shall also participate in the various retirement, benefit
and other plans maintained in force by the Company from time to time.
(b) Fringe Benefits. The Executive shall be entitled to
perquisites of office, fringe benefits and other similar benefits consistent
with the Company's present practices.
(c) Expense Reimbursement. The Company shall reimburse the
Executive, upon proper accounting, for reasonable business expenses and
disbursements incurred by him in the course of the performance of his duties
under this Amended and Restated Agreement.
(d) Vacation. The Executive shall be entitled to three (3) weeks
of vacation during each year of this Amended and Restated Agreement, or such
greater period as the Board shall approve, without reduction in salary or
other benefits.
(e) Automobile Allowance. The Executive shall receive an annual
automobile allowance of $8,000, payable in equal monthly installments.
5. Termination. Unless earlier terminated in accordance with the following
provisions of this Paragraph 5, the Company shall continue to employ the
Executive and the Executive shall remain employed by the Company during the
entire term of this Amended and Restated Agreement as set forth in Paragraph
1. Paragraph 6 hereof sets forth certain obligations of the Company in the
event that the Executive's employment hereunder is terminated. Certain
capitalized terms used in this Paragraph 5 and Paragraph 6 hereof are defined
in Paragraph 5(c) below.
(a) Death or Disability. Except to the extent otherwise
expressly stated herein, this Amended and Restated Agreement shall terminate
immediately as of the Date of Termination in the event of the Executive's
death or in the event that the Executive becomes disabled. The Executive will
be deemed to be disabled upon the earlier of (i) the end of a six (6)
consecutive month period during which, by reason of physical or mental injury
or disease, the Executive has been unable to perform substantially the
Executive's usual and customary duties under this Amended and Restated
Agreement and (ii) the date that the Board determines, on the basis of such
evidence as it may reasonably deem sufficient, that the Executive will, by
reason of physical or mental injury or disease, be unable to perform
substantially the Executive's usual and customary duties under this Amended
and Restated Agreement for a period of at least six (6) consecutive months.
The Board shall promptly give the Executive written notice of any such
determination of the Executive's disability and of its decision to terminate
the Executive's employment by reason thereof. In the event of disability,
until the Date of Termination the Base Salary payable to the Executive under
Paragraph 3 hereof shall be reduced dollar-for-dollar by the amount of
disability benefits, if any, paid to the Executive in accordance with any
disability policy or program of the Company.
(b) Discharge for Cause. The Board may discharge the Executive
from his employment hereunder for Cause. Any discharge of the Executive by
the Board for Cause shall be communicated in writing to the Executive in
accordance with Paragraph 12 of this Agreement.
(c) Definitions. For purposes of this Paragraph 5 and Paragraph
6 hereof, the following capitalized terms shall have the meanings set forth
below:
(i) "Accrued Obligations" shall mean, as of the Date of
Termination, the sum of (A) the Executive's Base Salary under Paragraph
3 through the Date of Termination to the extent not theretofore paid, (B)
the amount of any bonus, incentive compensation, deferred compensation and
other cash compensation accrued by the Executive as of the Date of
Termination to the extent not theretofore paid and (C) any vacation pay,
expense reimbursements and other cash entitlements accrued by the Executive
as of the Date of Termination to the extent not theretofore paid.
(ii) "Cause" shall mean conviction of the Executive of
(or a plea of no contest with respect to) a felony or a misdemeanor involving
moral turpitude or a determination by the Board or the Committee that the
Executive has engaged in serious misconduct (such as dishonesty,
insubordination, willful failure to perform a material or significant portion
of his duties or other act or omission materially detrimental to the business
or reputation of the Company or materially damaging to the relationships of
the Company with its customers, suppliers or employees).
(iii) "Date of Termination" shall mean (A) in the event of a
discharge of the Executive by the Board or a resignation by the Executive,
the date the Executive (in the case of discharge) or the Company (in the case
of resignation) receives written notice of such termination of employment or any
later date specified therein (which date shall be not more than fifteen (15)
days after the giving of such notice), (B) in the event of the Executive's
death, the date of the Executive's death, and (C) in the event of termination
of the Executive's employment by reason of disability pursuant to Paragraph
5(a), the date the Executive receives written notice of such termination.
(iv) "Discharge For Cause" shall mean a termination by the
Company of the Executive's employment for Cause pursuant to Paragraph 5(b).
(v) "Termination Without Cause" shall mean (x) a discharge by
the Company of the Executive from his employment without Cause or (y) any
voluntary or involuntary termination of the Executive's employment, other than
a Discharge for Cause, within one (1) year after the occurrence of any of the
following:
(A) A substantial reduction in the Base Salary under
Paragraph 3, benefits or perquisites provided the Executive;
(B) A substantial reduction in the Executive's
responsibilities, authorities or functions; or
(C) Any failure by the Company to comply with and satisfy
Paragraph 11(c) of this Amended and Restated Agreement.
(D) The giving of notice to the Executive
by the Company, pursuant to Paragraph 1, that the term of this
Amended and Restated Agreement shall not be extended in
accordance with Paragraph 1.
6. Obligations of the Company Upon Termination.
(a) Death, Disability, Resignation (Other Than a Resignation
Constituting a Termination Without Cause) or Discharge For Cause. If the
Executive's employment with the Company terminates because of death,
disability, resignation (other than a resignation constituting a Termination
Without Cause) or a Discharge For Cause:
(i) the Company shall pay to the Executive all Accrued
Obligations in a lump sum in cash within thirty (30) days after the Date of
Termination; and
(ii) the Executive shall be entitled to receive all benefits
accrued by him as of the Date of Termination under the Company's retirement,
incentive, or other benefit plans in which the Executive was participating as
of the Date of Termination, including accrued benefits payable by reason of
the Executive's death or disability, if applicable (but only to the extent not
previously paid or distributed to the Executive) in such manner and at such
time as are provided under the terms of such plans and arrangements; and
(iii) except as otherwise provided in Paragraph 16 hereof,
all other obligations of the Company hereunder shall cease forthwith.
(b) Termination Without Cause. In the event of a Termination
Without Cause (other than in the case of disability):
(i) the Company shall pay all Accrued Obligations to the
Executive in a lump sum in cash within thirty (30) days after the Date of
Termination; and
(ii) the product of two (2) times the highest Base Salary
during the term of this Amended and Restated Agreement, shall be paid to the
Executive in a lump sum in cash within thirty (30) days after the Date of
Termination; and
(iii) an incentive bonus equal to the full "Target Award"
fixed for the Executive for the then current fiscal year multiplied by a
fraction, the numerator of which is the number of days in the then current
fiscal year through the Date of Termination and the denominator of which is 365,
shall be paid to the Executive in a lump sum in cash within thirty (30) days
after the Date of Termination; and
(iv) for a period of two (2) years, the Company shall arrange
to provide the Executive, at the Company's cost, with life, disability and
health-and-accident insurance coverage providing substantially similar
benefits to those which the Executive was receiving immediately prior to the
Date of Termination, to the extent the Company continues to maintain benefit
plans providing for such benefits for executives generally; provided, however,
that the Company may cease providing such benefits at such time as the
Executive is provided with substantially equivalent benefits by another
employer; and
(v) the Executive shall be entitled to receive all benefits
accrued by him as of the Date of Termination under the Company's retirement,
incentive or other benefit plans in which the Executive was participating as of
the Date of Termination (but only to the extent not previously paid or
distributed to the Executive) in such manner and at such time as are provided
under the terms of such plans; and
(vi) except as otherwise provided in Paragraph 16 hereof, all
other obligations of the Company hereunder shall cease forthwith.
(d) Limitation on Payments. Notwithstanding the foregoing or any
other provision of this Amended and Restated Agreement to the contrary, if tax
counsel selected by the Company and acceptable to the Executive determines
that any portion of any payment under this Amended and Restated Agreement
would constitute an "excess parachute payment," then the payments to be made
to the Executive under this Amended and Restated Agreement shall be reduced
(but not below zero) such that the value of the aggregate payments that the
Executive is entitled to receive under this Amended and Restated Agreement and
any other agreement or plan or program of the Company shall be one dollar ($1)
less than the maximum amount of payments which the Executive may receive
without becoming subject to the tax imposed by Section 4999 of the Internal
Revenue Code; provided, however, that the foregoing limitation shall not apply
in the event that such tax counsel determines that the benefits to the
Executive under this Amended and Restated Agreement on an after-tax basis
(i.e., after federal, state and local income and excise taxes) if such
limitation is not applied would exceed the after-tax benefits to the Executive
if such limitation is applied.
7. Indemnification. The Company shall defend and hold the Executive harmless
to the fullest extent permitted by applicable law in connection with any
claim, action, suit, investigation or proceeding arising out of or relating to
performance by the Executive of services for, or action of the Executive as a
Director, officer or employee of the Company, or of any other person or
enterprise for which the Executive serves or acts in such capacity at the
request of the Company. Expenses incurred by the Executive in defending a
claim, action, suit or investigation or criminal proceeding shall be paid by
the Company in advance of the final disposition thereof upon the receipt by
the Company of an undertaking by or on behalf of the Executive to repay said
amount if it shall ultimately be determined that the Executive is not entitled
to be indemnified hereunder. The foregoing shall be in addition to any
indemnification rights the Executive may have by law, contract, charter, by-
law or otherwise.
8. Restriction on Competition. While the Executive is employed by the
Company, and for a period of two years following the termination of the
Executive's employment by reason of (a) his resignation (other than a
resignation constituting a Termination Without Cause) or (b) a Discharge For
Cause, the Executive will not, directly or indirectly, whether as an owner of
10% or more of the equity interests, officer, director, employee, consultant,
or agent, work for or participate in the activities of any firm or person
engaged in the sale or manufacture of products competing with those of the
Company.
9. Confidential Information. The Executive will not, during or after
the term of this Amended and Restated Agreement, disclose to any firm or
person any information, except as otherwise required by law, including but not
limited to information about the Company, its affiliates and its customers,
that is treated as confidential by the Company or an affiliate, to which the
Executive has gained or gains access by reason of his position as an employee
of the Company or of an affiliate of the Company. Except as otherwise
required by law, the Company will not, without the Executive's written
consent, disclose to any person any personal or confidential information about
the Executive.
10. Right to Injunctive Relief. The Executive acknowledges that the
Company will suffer irreparable injury, not readily susceptible of valuation
in monetary damages, if the Executive breaches any of his obligations under
Paragraph 8 or 9 above. Accordingly, the Executive agrees that the Company
will be entitled to seek injunctive relief against any breach or prospective
breach by the Executive of the Executive's obligations under Paragraph 8 or 9
in any Federal or State court of competent jurisdiction sitting in the the
State of North Carolina. The Executive hereby submits to the jurisdiction of
such courts for the purposes of any actions or proceedings instituted by the
Company to obtain such injunctive relief, and agrees that process may be
served on the Executive by registered mail, addressed to the last address of
the Executive known to the Company, or in any manner authorized by law.
11. Successors. (a) This Amended and Restated Agreement is personal to
the Executive and without the prior written consent of the Company shall not
be assignable by the Executive otherwise than by will or the laws of descent
and distribution. This Amended and Restated Agreement shall inure to the
benefit of and be enforceable by the Executive's legal representatives.
(b) This Amended and Restated Agreement shall inure to the benefit of
and be binding upon the Company and its successors and assigns.
(c) The Company shall require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Amended and Restated Agreement in the same
manner and to the same extent that the Company would be required to perform it
if no such succession had taken place. As used in this Amended and Restated
Agreement, "Company" shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid which assumes and agrees
to perform this Amended and Restated Agreement by operation of law, or
otherwise.
12. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered by hand or mailed within the continental United States by first
class certified mail, return receipt requested, postage prepaid, addressed as
follows:
(a) to the Company or the Board, to:
Trion Inc.
101 McNeill Road
P.O. Box 760
Sanford, North Carolina 27331-0760
Attention: Trion Inc.
Board of Directors
c/o Corporate Secretary
(b) to the Executive, to:
Steven L. Schneider
1706 Wilkins Drive
Sanford, North Carolina 27330
Addresses may be changed by written notice sent to the other party at the last
recorded address of that party.
13. Execution in Counterparts. This Amended and Restated Agreement may be
executed by the parties hereto in two or more counterparts, each of which
shall be deemed to be an original, but all such counterparts shall constitute
one and the same instrument, and all signatures need not appear on any one
counterpart.
14. Unconditional Obligations; Dispute Resolution. The Company's obligation
to make the payments provided for under this Amended and Restated Agreement
and otherwise to perform its obligations hereunder shall not be affected by
any set-off, counterclaim, recoupment, defense or other claim, right or action
which the Company may have against the Executive or others. Any controversy
or claim arising out of or relating to this Amended and Restated Agreement or
the breach thereof (including the arbitrability of any controversy or claim),
shall be settled by arbitration in accordance with the internal laws of the
State of North Carolina by three arbitrators, one of whom shall be appointed
by the Board, one by the Executive and the third of whom shall be appointed by
the first two arbitrators. If the first two arbitrators cannot agree on the
appointment of a third arbitrator, then the third arbitrator shall be
appointed by the American Arbitration Association. The arbitration shall be
conducted in accordance with the rules of the American Arbitration
Association, except with respect to the selection of arbitrators which shall
be as provided in this Paragraph 14. The cost of any arbitration proceeding
hereunder shall be borne equally by the Company and the Executive. The award
of the arbitrators shall be binding upon the parties. Judgment upon the award
rendered by the arbitrators may be entered in any court having jurisdiction
thereof.
15. Jurisdiction and Governing Law. Jurisdiction over disputes with regard
to this Amended and Restated Agreement shall be exclusively in the courts of
the State of North Carolina, and this Amended and Restated Agreement shall be
construed and interpreted in accordance with and governed by the laws of the
State of North Carolina, other than the conflict of laws provisions of such
laws.
16. Survival. The provisions of this Paragraph 18 and Paragraphs 6 through
11, 14, 15, 17, and 18 shall survive the termination of this Amended and
Restated Agreement to the extent necessary to effectuate the respective
purposes of such provisions.
17. Severability. If any provision of this Amended and Restated Agreement
shall be adjudged by any court of competent jurisdiction to be invalid or
unenforceable for any reason, such judgment shall not affect, impair or
invalidate the remainder of this Amended and Restated Agreement.
18. Miscellaneous. This Amended and Restated Agreement and the Stock Option
Agreement between the parties hereto dated March 31, 1993, and amended of even
date herewith, embody the entire understanding of the parties hereto, and
supersede all other oral or written agreements or understandings between them
regarding the subject matter hereof. No change, alteration or modification
hereof may be made except in a writing, signed by each of the parties hereto.
The headings in this Amended and Restated Agreement are for convenience of
reference only and shall not be construed as part of this Amended and Restated
Agreement or to limit or otherwise affect the meaning hereof.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amended and Restated Agreement as of the day and year first above written.
Attest: TRION INC.
___________________________ By_____________________________
WITNESS: EXECUTIVE
_____________________________ _______________________________
Steven L. Schneider
Exhibit 21.1 Parents and Subsidiaries
The Company and its active subsidiaries as of December 31, 1995 are as
follows:
State/Country Percentage of
Name of Company of Incorporation Securities Owned
Trion, Inc. Pennsylvania Parent
Trion, Limited United Kingdom 100%
Envirco Corporation New Mexico 100%
Exhibit 23.1 - Consent of Independent Auditors
We consent to the use of our report dated January 31, 1996, included in the
1995 Annual Report to Shareholders of Trion, Inc., included in this Annual
Report (Form 10-K) of Trion, Inc.
Our audit also included the financial statement schedule of Trion, Inc. listed
in Item 14(a). This schedule is the responsibility of the Company's
management. Our responsibility is to express an opinion based on our audits.
In our opinion, the financial statement schedule referred to above, when
considered in relation to the basic financial statements taken as a whole,
presents fairly in all material respects the information set forth therein.
We also consent to the incorporation by reference in the Registration
Statement (Form S-3 and S-8 No. 2-96017) and in the related Prospectus
pertaining to the Trion, Inc. 1982 Incentive Stock Option Plan, the
Registration Statement (Form S-8 No. 33-4164) pertaining to the Trion, Inc.
1982 and 1985 Incentive Stock Option Plans, and in the Registration Statement
(Form S-8 No. 33-69706) pertaining to the Stock Option Agreements between
Trion, Inc. and Steven L. Schneider dated March 31, 1993; Edwin V. Clarke, Jr.
dated September 17, 1993; and Samuel J. Wornom III dated September 21, 1993,
the Registration Statement (Form S-8 No. 33-58561) pertaining to the Trion,
Inc. 1995 Non-Employee Director Stock Plan, and in the Registration Statement
(Form S-8 No. 33-59095) pertaining to the Trion, Inc. 1995 Stock Incentive
Plan of our report dated January 31, 1996, with respect to the consolidated
financial statements included in this Annual Report (Form 10-K) of Trion, Inc.
and our report included in the preceding paragraph with respect to the
financial statement schedule included in this Annual Report (Form 10-K) of
Trion, Inc.
ERNST & YOUNG LLP
Raleigh, North Carolina
March 22, 1996
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