<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-Q
Quarterly Report Under Section 13 or 15(d)
of the Securities Exchange Act of 1934.
For Quarter Ended July 1, 1995 Commission file number 0-7469
------------ ------
TJ INTERNATIONAL, INC.
-------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
DELAWARE 82-0250992
------------------------------ -------------------
State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
200 E. Mallard Drive
BOISE, IDAHO 83706
--------------------------------------- ----------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (208) 364-3300
--------------
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 and Exchange
Act of 1934 during the preceding 12 months (or for each shorter period
that the registrant was required to file such reports) and (2) has been
subject to such filing requirements for the past 90 days. Yes X No
----- ---
Indicate the number of shares outstanding of each of the issuer's classes
of common stock, as of the latest practicable date.
July 31, 1995. 17,086,907 shares of $1 par value common stock.
---------------------------------------------------------------
EXHIBIT INDEX ON PAGE 16
<PAGE>
TJ INTERNATIONAL, INC.
PART I. Financial Information
The condensed consolidated financial statements included herein have been
prepared by the Company, without audit, pursuant to the rules and regulations
of the Securities and Exchange Commission. In the opinion of management, all
adjustments necessary to present fairly the results for the periods presented
have been included therein. The adjustments made were of a normal, recurring
nature. Certain information and footnote disclosure normally included in
financial statements have been condensed or omitted pursuant to such rules and
regulations, although the Company believes that the disclosures are adequate
to make the information presented not misleading. It is recommended that
these condensed financial statements be read in conjunction with the financial
statements and the notes thereto included in the Company's latest annual
report on Form 10-K.
The results of operations for the periods presented are not necessarily
indicative of the results that might be expected for the fiscal year ended
December 30, 1995.
<PAGE>
TJ INTERNATIONAL, INC.
CONDENSED CONSOLIDATED STATEMENTS OF INCOME
(Unaudited)
<TABLE>
<CAPTION>
(amounts in thousands
except per share figures)
For the fiscal For the two
quarter ended fiscal quarters ended
-------------------------- ---------------------------
July 1, July 2, July 1, July 2,
1995 1994 1995 1994
------------ ------------ ------------- ------------
<S> <C> <C> <C> <C>
Sales $148,597 $163,484 $277,697 $298,532
------------ ------------ ------------- ------------
Costs and expenses
Cost of sales 114,985 122,763 218,228 222,091
Selling expenses 17,061 15,117 31,070 30,730
Administrative expenses 8,013 7,937 17,640 16,135
------------ ------------ ------------- ------------
140,059 145,817 266,938 268,956
------------ ------------ ------------- ------------
Income from operations 8,538 17,667 10,759 29,576
Investment income, net 924 383 1,851 924
Interest expense --- --- ---- ---
Minority interest in Partnership (5,186) (8,950) (7,695) (16,910)
------------ ------------ ------------- ------------
Income before income taxes 4,276 9,100 4,915 13,590
Income taxes 1,690 3,378 1,815 5,309
------------ ------------ ------------- ------------
Net income 2,586 5,722 3,100 8,281
------------ ------------ ------------- ------------
------------ ------------ ------------- ------------
Net income per common share
Primary $0.14 $0.32 $0.15 $0.45
------------ ------------ ------------- ------------
------------ ------------ ------------- ------------
Fully Diluted $0.13 $0.30 $0.15 $0.43
------------ ------------ ------------- ------------
------------ ------------ ------------- ------------
Dividends declared per common share $0.0550 $0.0550 $0.1100 $0.1100
------------ ------------ ------------- ------------
------------ ------------ ------------- ------------
Weighted average number of common shares
outstanding during the periods
Primary 17,408 17,341
------------- ------------
------------- ------------
Fully Diluted 18,654 18,599
------------- ------------
------------- ------------
</TABLE>
<PAGE>
TJ INTERNATIONAL, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(Unaudited)
<TABLE>
<CAPTION>
(amounts in thousands)
July 1, December 31, July 2,
1995 1994 1994
------------ --------------- --------------
<S> <C> <C> <C>
Assets
Current assets
Cash and cash equivalents $ 23,240 $ 57,627 $ 50,849
Marketable securities 18,511 16,084 9,139
Receivables, less allowances of
$954,000, $1,066,000 and $752,000 47,653 49,157 47,226
Inventories 57,168 56,612 68,015
Other 10,147 8,967 11,322
------------ --------------- --------------
156,719 188,447 186,551
Property
Property and equipment 564,405 488,841 416,774
Less - accumulated depreciation (151,401) (137,384) (131,078)
------------- --------------- ---------------
413,004 351,457 285,696
Goodwill 48,031 48,889 23,140
Unexpended bond funds 2,889 11,550 42,630
Other assets 16,088 14,134 10,938
------------ --------------- --------------
$636,731 $614,477 $548,955
------------ --------------- --------------
------------ --------------- --------------
Liabilities and stockholders' equity
Current liabilities
Notes payable $2,063 $3,753 $1,278
Current portion of long-term debt 320 570 1,701
Accounts payable 34,481 29,497 32,688
Accrued liabilities 26,106 28,550 24,078
------------ --------------- --------------
62,970 62,370 59,745
Long-term debt, excluding current portion 117,456 102,499 88,571
Deferred income taxes 8,091 8,092 7,361
Other long-term liabilities 11,837 11,777 13,449
Minority interest in Partnership 192,974 189,181 137,428
Stockholders' equity
ESOP Convertible Preferred Stock, $1.00 par
value, authorized 10,000,000 shares,
issued 1,193,122 1,249,582 and 1,254,735 14,076 14,744 14,835
Guaranteed ESOP benefit (11,535) (12,100) (11,460)
Common stock, $1.00 par value, authorized
200,000,000 shares, issued
17,081,534, 16,915,536 and 16,872,055 17,082 16,916 16,872
Paid-in capital 139,701 138,003 137,124
Retained earnings 87,137 86,355 88,106
Cumulative translation adjustments (3,058) (3,360) (3,076)
------------ --------------- --------------
243,403 240,558 242,401
------------ --------------- --------------
$636,731 $614,477 $548,955
------------ --------------- --------------
------------ --------------- --------------
</TABLE>
<PAGE>
TJ INTERNATIONAL, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE TWO FISCAL QUARTERS ENDED
JULY 1, 1995 AND JULY 2, 1994
(Unaudited)
(Amounts in Thousands)
<TABLE>
<CAPTION>
July 1, July 2,
1995 1994
--------------- --------------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net income $ 3,100 $ 8,281
Adjustments to reconcile net income to net
cash provided by operating activities:
Depreciation and amortization 15,416 13,765
Minority interest in partnerships 7,695 16,910
Other, net (258) 57
Change in working capital items:
Receivables 1,504 (1,517)
Inventories (556) (14,934)
Other current assets (2,155) (1,075)
Accounts payable and accrued liabilities 545 4,178
Other, net 827 (2,622)
------------- ------------
Net cash from operating activities $ 26,118 $ 23,043
------------- ------------
------------- ------------
CASH FLOWS FROM INVESTING ACTIVITIES
Capital expenditures $ (77,181) $ (61,913)
Marketable securities (2,427) (2,135)
Decrease (Increase) in unexpended bond funds 8,661 (42,630)
Other, net 701 (161)
------------- ------------
Net cash used in investing activities $ (70,246) $ (106,839)
------------- ------------
------------- ------------
CASH FLOWS FROM FINANCING ACTIVITIES
Cash dividends paid on common stock $ (1,862) $ (1,844)
Minority partners capital contributions ----- 20,433
Minority partners tax distributions (2,841) (5,437)
Proceeds from issuance of long-term debt 15,000 58,500
Net (repayments) borrowings under lines of credit (1,690) (2,729)
Principal payments of long-term debt (250) (702)
Other, net 1,384 (544)
------------- ------------
Net cash provided by financing
activities $ 9,741 $ 67,677
------------- ------------
------------- ------------
NET CHANGE IN CASH AND CASH EQUIVALENTS
Net increase (decrease) in cash and cash
equivalents $ (34,387) $ (16,119)
Cash and cash equivalents at beginning of year 57,627 66,968
------------- ------------
Cash and cash equivalents at end of period $ 23,240 $ 50,849
------------- ------------
------------- ------------
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION
Cash paid (received) during the period for:
Interest, net of amounts capitalized $ --- $ 1,206
Income taxes (refunds), net $ 1,738 $ 5,300
</TABLE>
<PAGE>
TJ INTERNATIONAL, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
INVENTORIES
Inventories consisted of the following:
(amounts in thousands)
July 1, Dec. 31, July 2,
1995 1994 1994
-------- -------- -------
Finished goods $30,280 $27,512 $32,364
Raw materials and
work-in-progress 33,349 34,363 39,869
------- ------- -------
63,629 61,875 72,233
Reduction to LIFO cost (6,461) (5,263) (4,218)
------- ------- -------
$57,168 $56,612 $68,015
------- ------- -------
------- ------- -------
The determination of inventory under the LIFO method can be made only at the
end of each fiscal year based on the inventory levels and costs at that time.
Accordingly, interim LIFO calculations must necessarily be based on the
Company's estimates of expected year-end inventory levels and costs. Since
these estimates are subject to many forces beyond the Company's control,
interim results could possibly be affected by the final year-end LIFO
inventory valuation.
RECLASSIFICATIONS
Certain reclassifications have been made, none of which affected net income,
to conform prior year's information to the current year's presentation.
NET INCOME PER COMMON SHARE
Primary net income per common share is based on net income adjusted for
preferred stock dividends and related tax benefits divided by the weighted
average number of common shares outstanding after giving effect to stock
options as common stock equivalents. Fully diluted net income per common share
assumes conversion of the ESOP convertible preferred stock into common stock
at the beginning of the year.
<PAGE>
Primary net income and fully diluted net income were calculated as follows:
<TABLE>
<CAPTION>
(Amounts in Thousands)
For the fiscal For the two fiscal
quarter ended quarters ended
------------------ ------------------
July 1, July 2, July 1, July 2,
1995 1994 1995 1994
------- ------- ------- -------
<S> <C> <C> <C> <C>
PRIMARY NET INCOME
Net income as reported $ 2,586 $ 5,722 $ 3,100 $ 8,281
Preferred stock dividends,
net of related tax benefits (207) (233) (443) (466)
------- ------- ------- -------
Primary net income $ 2,379 $ 5,489 $ 2,657 $ 7,815
------- ------- ------- -------
------- ------- ------- -------
FULLY DILUTED NET INCOME
Net income as reported $ 2,586 $ 5,722 $ 3,100 $ 8,281
Additional ESOP contribution
payable upon assumed
conversion of ESOP
preferred stock, net of
related tax benefits (163) (181) (345) (361)
------- ------- ------- -------
Fully diluted net income $ 2,423 $ 5,541 $ 2,755 $ 7,920
------- ------- ------- -------
------- ------- ------- -------
</TABLE>
INDUSTRY SEGMENTS
The Company classifies its manufactured products into two core business units:
engineered lumber products and window operations. Summary financial
information by business unit is as follows:
<TABLE>
<CAPTION>
(Amounts in Thousands)
For the Engineered Window
Fiscal Quarter Ended Lumber Operations Other Consolidated
-------------------- ---------- ---------- ----- ------------
<S> <C> <C> <C> <C>
JULY 1, 1995
Sales to unaffiliated
customers $ 123,883 $ 24,714 --- 148,597
Income (loss) from
operations 10,451 (1,086) (827) 8,538
JULY 2, 1994
Sales to unaffiliated
customers 128,858 34,626 --- 163,484
Income (loss) from
operations 18,138 (321) (150) 17,667
</TABLE>
<PAGE>
TJ INTERNATIONAL, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS
FOR THE FISCAL QUARTER ENDED JULY 1, 1995
OPERATING RESULTS
The following comments discuss material variations in the results of
operations for the comparative periods presented in the condensed
consolidated financial statements of income.
SALES
The Company's sales by quarter during the current year and the preceding four
years are as follows:
<TABLE>
<CAPTION>
Quarter 1995 1994 1993 1992 1991
------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
First $129,100 $135,048 $114,111 $ 75,561 $ 45,330
Second 148,597 163,484 139,639 111,024 79,679
Third 171,715 152,729 113,512 84,838
Fourth 148,629 144,725 100,383 73,363
-------- -------- -------- --------
277,697 618,876 551,204 400,480 283,210
-------- -------- -------- -------- --------
-------- -------- -------- -------- --------
</TABLE>
GENERAL
The company's operations are strongly influenced by the cyclicality and
seasonality of residential housing construction. This industry experiences
fluctuations resulting from a number of factors, including the state of the
economy, consumer confidence, credit availability, interest rates, and
weather patterns. The seasonality of this industry, which is particularly
pronounced in the colder climates of the Northern, Mid-Western, and Rocky
Mountain regions of the United States, has an especially significant impact
on the company's window operations which are predominantly located in these
regions. As a result of this seasonal pattern, the company's sales have
historically tended to be lowest in the first and fourth quarters and highest
in the second and third quarters of each year.
The company's engineered lumber products continue to gain market acceptance
as high-quality substitutes for large-dimension structural lumber. Through
the company's intensive marketing efforts, builders and other wood users are
increasingly recognizing the consistent quality, superior strength, lighter
weight, and ease of installation of engineered lumber products. The Company
believes that this trend will continue well into the future.
No other company possesses the range of engineered lumber products, the
levels of service and technical support, nor the second generation
technologies of TimberStrand-registration mark- laminated strand lumber (LSL)
or Parallam-registration mark- parallel strand lumber (PSL). There are,
however, a number of companies, including several large forest products
companies, that now produce look-alike wood I-joist and laminated veneer
lumber (LVL) products. Several of these companies have announced capacity
expansions. These look-alike products are manufactured using processes
similar to the company's oldest generation technologies.
The Company believes its network of manufacturing plants and multiple
technologies position it as the low-cost producer of engineered lumber.
While competition helps expand the market for engineered wood products
including those manufactured by the company, it may also make the existing
markets more price competitive. It is likely these trends of increased price
competition
<PAGE>
for traditional engineered lumber products will continue for the foreseeable
future.
The company's window and door products compete in the marketplace by striving
to provide reliable product quality and high levels of service through
locally tailored distribution channels. The marketing strategy involves
establishing strong regional customer bases through superior products and
personal service. The company's net income for the six months ended July 1,
1995 was materialy reduced from levels that would have otherwise been achieved
due to losses incurred in its window business. The Company expects that its
results of operation for 1995 will reflect losses in its window business. The
Company presently intends to sell or otherwise divest of its interest in the
window and door business depending on available opportunities.
SECOND QUARTER OF 1995 COMPARED WITH THE SECOND QUARTER OF 1994
Sales for the second quarter 1995 decreased $14.9 million or 9% from the
comparable period in 1994. The Company's window and door segment sales
declined $10.0 million and were the most significant contributor to the
quarter's sales decline. The second quarter also saw a continuation of the
reduced market opportunity with lower housing starts in both Canada and the
United States. Single family housing starts in the United States, the
Company's most significant market, declined 14% in the first six months of
1995 compared to the same period in 1994.
Sales of the company's engineered lumber products decreased 4% to $124
million, as compared to $129 million in the second quarter of 1994. The
decline resulted from the combination of reduced unit prices and reduced
market opportunities. The price reductions continue the company's strategy
of maintaining competitively priced products. Prices for commodity lumber,
which remains the primary competition for the company's products, continued
to decline in the second quarter. Lumber prices in the second quarter of
1995 were, on average, down approximately 20% from the second quarter of
1994. Additionally, the company continues to experience price competition
from competitors look alike products. Unit volumes sold remained relatively
flat between the two periods despite the reduced market opportunity. The
company believes its products are continuing to achieve increased market
acceptance in residential construction.
A number of factors combined to pressure margins, which declined to 22.6%
compared to 24.9% for the same period in 1994. The sales price pressures
discussed previously, were the most significant factor adversely impacting
margins. In addition, the Company incurred approximately $2.2 million of
start-up expenses at its Kentucky TimberStrand-registration mark- LSL and
West Virginia combination Parallam-registration mark- PSL and
Microllam-registration mark- LVL plants. The company's initial
TimberStrand-registration mark- LSL plant in Deerwood, Minnesota continued to
see improvement in both lower unit costs and higher sales realizations and
was a solid contributor to both gross margins and operating income in the
second quarter.
Window and door sales in the second quarter were $24.7 million as compared to
$34.7 million in the second quarter of 1994. The operating loss increased to
$1.1 million versus $.3 million in the second quarter of the prior year
despite the changes made to the Company's window business in 1994. At the
end of 1994, the Company sold its wholly-owned Canadian window businesses
which were unprofitable in 1994. In the fourth quarter of 1994, the company
entered into the Outlook Window Partnership, by combining the assets of Norco
Windows, Inc. with those of historically profitable SealRite Windows and
Oldach Windows. The Company owns a 64% interest in Outlook. In accordance
with the terms of the Partnership Agreement, however, all of the losses
incurred by Norco Windows through 1995 will be allocated to the company.
Window sales have been adversely affected by the lower market opportunity in
new residential construction. In addition, the Oldach Windows business in
<PAGE>
Colorado Springs has been adversely affected by gains in market share made by
competing vinyl windows. Lower unit volumes in most manufacturing facilities
have adversely impacted manufacturing costs, further pressuring margins.
Until divestiture of the company's interest in the Outlook Windows
Partnership occurs, the window business continues its efforts to reduce
operating costs and restore sales volumes.
Selling expense increased in absolute dollars and as a percent of sales.
This increase reflects the company's investment in terms of building codes
and increased sales effort to enter the European market. In addition,
advertising expenditures in the second quarter of 1995 were higher compared
to 1994 due to a change in timing of the company's advertising campaign.
Administrative expenses increased slightly in absolute dollars and as a
percentage of sales. The increase reflects the company's investment in
information systems and management resources to accommodate the company's
growth and to properly support the developing technologies.
The $3.8 million decrease in minority interest from $9.0 million to $5.2
million reflects the decline in operating income at the engineered lumber
partnership.
FIRST TWO QUARTERS OF 1995 COMPARED WITH THE FIRST TWO QUARTERS OF 1994
Sales for the first two quarters of 1995 decreased by $20.8 million or 7%
from the comparable period last year. The decline reflects a weaker building
climate, lower window and door sales and lower engineered lumber prices
compared to the company's near-record first half of 1994. Income from
operations decreased from $29.6 million in 1994 to $10.8 million in the
current year.
Engineered lumber prices declined 5% on average compared to last year with
volumes being flat, despite the 14% drop in new housing starts. Window
product sales decreased by 15% from the comparable period last year.
Gross operating margins as a percent of sales were 21.4% compared to 25.6%
for the first half of 1994. The decline in margins is primarily due to price
reductions for engineered lumber products. In addition, the Company has
incurred approximately $3.8 million of start-up expenses at its two new
technology plants in Kentucky and West Virginia.
Both selling and administrative expenses have increased in absolute dollars
as well as a percent of sales, compared to the prior year. These increases
represent the company's continuing investment in expanding markets, new and
innovative products, and the underlying technology that will help the company
efficiently compete in the marketplace of the future.
LIQUIDITY AND CAPITAL RESOURCES
JULY 1, 1995, COMPARED TO DECEMBER 31, 1994
Working capital decreased $32 million during the six months ended July 1,
1995. The decrease was due primarily to payments for the continuing
<PAGE>
construction of the company's two new technology plants. Additionally, cash
was generated from the partial collection of a note receivable from Anderson
Windows for the sale of the company's Canadian subsidiaries in 1994.
JULY 1, 1995, COMPARED TO JULY 2, 1994
Working capital declined from $126.8 million at July 2, 1994 to $93.7 million
at July 1, 1995. As discussed above, the primary use of working capital
between these periods was for new construction. Additionally, the Company
had lower levels of inventory on hand at July 1, 1995, as compared to the
previous year.
The company's Board of Directors approved a capacity expansion program in
1993 that includes construction of a plant near Hazard, Kentucky, that will
manufacture TimberStrand-registration mark- LSL. Construction commenced in
the fall of 1993, and when the plant is completed, expenditures are expected
to be just over $100 million. In addition, the company's Board of Directors
approved construction of a plant that will manufacture both
Microllam-registration mark- LVL and Parallam-registration mark- PSL near
Buckhannon, West Virginia, at an expected cost of approximately $85 million.
Construction of this plant commenced in the second quarter of 1994. The
Company has spent $171 million on these projects to date and expects to spend
the balance during the remainder of 1995. The Company is evaluating
potential sites for a third TimberStrand-registration mark- LSL plant, or an
additional combination Microllam-registration mark- LVL and
Parallam-registration mark- PSL plant but has not determined whether or when
to proceed with construction.
MacMillan Bloedel's Board of Directors authorized a $49 million capital
contribution to the TJM Partnership in light of the capacity expansion
program. The entire amount was contributed by December 1994.
During the second quarter of 1994, the Company issued $43.5 million of
industrial revenue bonds to finance the construction of the Hazard, Kentucky
TimberStrand-registration mark- LSL plant. The bonds are due in a single
maturity in 2024, with interest payable semi-annually at 7 percent.
Remaining proceeds from these bonds are recorded as unexpended bond funds.
In the third quarter of 1995, the Company has issued $22.5 million of
industrial revenue bonds to finance the construction of the Buckhannon, West
Virginia combination Microllam-registration mark- LVL and
Parallam-registration mark- PSL plant. The bonds will be due in a single
maturity in 2025, with interest payable semi-annually at 7 percent.
The Company believes that current cash balances, cash generated from
operations, proceeds from the Buckhannon industrial revenue bonds, and
borrowing under a $100 million Revolving Credit Facility will be sufficient
to meet the company's capital expansion program approved by the Board of
Directors and to fund anticipated start-up losses at its Hazard and
Buckhannon plants. The Company also believes that additional or expanded
lines of credit or appropriate long-term capital can be obtained to fund
other capital requirements as they arise, or to fund an acquisition.
Substantially all of the company's operating assets are held, and revenue
generated, by its partnerships. The partnerships regularly distribute cash
to the partners to fund the tax liabilities generated by the partnerships at
the corporate level. All other distributions of cash by the partnerships to
the
<PAGE>
company require either a super-majority or unanimous consent of the
partnerships' Management Boards, which include members of
both the company and its partners. Accordingly, there can be no assurance
that distributions will be approved for the payment of dividends or to fund
other operations of the company.
Microllam-trade mark- is a trademark of Trus Joist MacMillan a Limited
Partnership, Boise, Idaho.
Parallam-registration mark- and TimberStrand-registration mark- are
registered trademarks of Trus Joist MacMillan a Limited Partnership, Boise,
Idaho.
<PAGE>
TJ INTERNATIONAL, INC.
PART II
Other Information
Item 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
At the Company's May 24, 1995 annual meeting of stockholders, the
following matters were voted upon and approved by the stockholders
as indicated:
<TABLE>
<CAPTION>
Votes Cast
--------------------------------------
Against or
Description For Withheld Abstentions
-------------------------------------- ------------ ----------- -----------
<S> <C> <C> <C>
1) To elect as directors the following
individuals:
FOR TERMS EXPIRING AT THE 1998
ANNUAL MEETING
Thomas H. Denig 15,159,447.0 15,768.0 91,660.0
Arthur L. Troutner 14,987,834.0 186,351.0 91,660.0
Steven C. Wheelwright 15,156,402.0 19,133.0 91,660.0
2) To ratify the appointment of
Arthur Andersen & Co. as
the Company's independent
accountants for the year ended
December 30, 1995 15,202.076.0 29,719.0 23,300.0
</TABLE>
Item 5. OTHER INFORMATION
SOLID WASTE DISPOSAL REVENUE BOND FINANCING - On August 9, 1995,
the Company announced that it had completed, in conjunction with
the County of Upshur, West Virginia an offering of $22.5 million of
Solid Waste Disposal Revenue Bonds (TJ International Project)
Series 1995. The proceeds of the tax-exempt Bonds are being loaned
to the Company to finance a portion of the construction of the
Company's West Virginia production facility for the manufacturing
of engineered lumber. Construction of the plant began in mid-1994,
and initial production has begun in the summer of 1995. The Bonds
are dated as of July 15, 1995, and have a 30-year maturity, bearing
interest at 7 percent. The Bonds represent a general, unsecured
obligation of the Company. Payment of principal and interest on
the Bonds has been unconditionally guaranteed by Trus Joist
MacMillan a Limited Partnership.
AMENDMENT TO REVOLVING CREDIT AGREEMENT - On May 31, 1995 the
Company completed an Amendment to its Revolving Credit Facility,
increasing its borrowing capacity from $75 million to $100 million.
The increase will help the Company fund its capital expansion plan and
start-up losses at the new plants.
<PAGE>
Item 6. EXHIBITS AND REPORTS ON FORM 8-K
(A) FILED AS AN EXHIBIT TO THIS REPORT IS THE FOLLOWING:
(4) AMENDED AND RESTATED CREDIT AGREEMENT, DATED AS OF MAY
31, 1995, SUPPLEMENTAL EXHIBITS ARE AVAILABLE TO THE
COMMISSION UPON REQUEST.
(27) FINANCIAL DATA SCHEDULE
(b) No reports on Form 8-K were filed during the quarter ended
July 1, 1995.
(c) The Loan Agreement, Trust Indenture and Guaranty pertaining to
the Solid Waste Disposal Revenue bonds, Series 1995 is
available to the Commission upon request.
<PAGE>
TJ INTERNATIONAL INC.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
TJ INTERNATIONAL, INC.
/s/ Valerie A. Heusinkveld
-------------------------------
Valerie A. Heusinkveld
Vice President, Finance & Chief
Financial Officer
Date: August 15, 1995
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
EXHIBITS TO FORM 10-Q
Quarterly Report Under section 13 or 15 (d)
of the Securities Exchange Act of 1934
For the fiscal quarter ended July 1, 1995 Commission File Number 0-7469
TJ INTERNATIONAL, INC.
EXHIBIT INDEX
Exhibits Page
-------------------------------------------------------------------------------
(4) Amended and Restated Credit Agreement Document 2
(27) Financial Data Schedule Document 3
<PAGE>
$100,000,000.00
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
May 31, 1995
among
TJ INTERNATIONAL, INC.,
THE BANKS LISTED HEREIN
and
WACHOVIA BANK OF GEORGIA, N.A.,
as Agent
<PAGE>
TABLE OF CONTENTS
AMENDED AND RESTATED CREDIT AGREEMENT
Page
----
ARTICLE I
DEFINITIONS . . . . . . . . . . . . . . . . . 1
SECTION 1.01. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. ACCOUNTING TERMS AND DETERMINATIONS . . . . . . . . 17
SECTION 1.03. REFERENCES . . . . . . . . . . . . . . . . . . . . . 18
SECTION 1.04. USE OF DEFINED TERMS . . . . . . . . . . . . . . . . 18
SECTION 1.05. TERMINOLOGY . . . . . . . . . . . . . . . . . . . . 18
ARTICLE II
THE CREDITS . . . . . . . . . . . . . . . . . 18
SECTION 2.01. COMMITMENTS TO LEND . . . . . . . . . . . . . . . . 18
SECTION 2.02. METHOD OF BORROWING . . . . . . . . . . . . . . . . 19
SECTION 2.03. MONEY MARKET CREDITS . . . . . . . . . . . . . . . . 21
SECTION 2.04. NOTES . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 2.05. MATURITY OF LOANS . . . . . . . . . . . . . . . . . 26
SECTION 2.06. INTEREST RATES; ACCRETION OF PRINCIPAL
OF BANKERS' ACCEPTANCES . . . . . . . . . . . . . 27
SECTION 2.07. FEES . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 2.08. OPTIONAL TERMINATION OR REDUCTION OF
COMMITMENTS . . . . . . . . . . . . . . . . . . . 29
SECTION 2.09. MANDATORY REDUCTION AND TERMINATION OF
COMMITMENTS . . . . . . . . . . . . . . . . . . . 30
SECTION 2.10. OPTIONAL PREPAYMENTS . . . . . . . . . . . . . . . . 30
SECTION 2.11. MANDATORY PREPAYMENTS . . . . . . . . . . . . . . . 30
SECTION 2.12. GENERAL PROVISIONS AS TO PAYMENTS . . . . . . . . . 30
SECTION 2.13. COMPUTATION OF INTEREST AND FEES . . . . . . . . . . 32
SECTION 2.14. OUTSTANDING AMOUNTS UNDER MONEY MARKET
LOAN NOTES . . . . . . . . . . . . . . . . . . . . 32
ARTICLE III
CONDITIONS TO BORROWINGS . . . . . . . . . . . . . . 33
SECTION 3.01. CONDITIONS TO FIRST BORROWING . . . . . . . . . . . 33
SECTION 3.02. CONDITIONS TO ALL BORROWINGS . . . . . . . . . . . . 35
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . . . 35
SECTION 4.01. EXISTENCE AND POWER . . . . . . . . . . . . . . . . 35
SECTION 4.02. AUTHORIZATION; NO CONTRAVENTION . . . . . . . . . . 36
SECTION 4.03. BINDING EFFECT . . . . . . . . . . . . . . . . . . . 36
SECTION 4.04. FINANCIAL INFORMATION . . . . . . . . . . . . . . . 36
SECTION 4.05. NO LITIGATION . . . . . . . . . . . . . . . . . . . 37
SECTION 4.06. COMPLIANCE WITH ERISA . . . . . . . . . . . . . . . . 37
SECTION 4.07. COMPLIANCE WITH LAWS; PAYMENTS OF TAXES . . . . . . . 37
SECTION 4.08. SUBSIDIARIES . . . . . . . . . . . . . . . . . . . . 38
SECTION 4.09. NOT AN INVESTMENT COMPANY . . . . . . . . . . . . . . 38
SECTION 4.10. OWNERSHIP OF PROPERTY; LIENS . . . . . . . . . . . . 38
SECTION 4.11. NO DEFAULT . . . . . . . . . . . . . . . . . . . . . 39
SECTION 4.12. FULL DISCLOSURE . . . . . . . . . . . . . . . . . . . 39
SECTION 4.13. ENVIRONMENTAL MATTERS . . . . . . . . . . . . . . . . 39
SECTION 4.14. CAPITAL STOCK . . . . . . . . . . . . . . . . . . . . 40
SECTION 4.15. MARGIN STOCK . . . . . . . . . . . . . . . . . . . . 40
SECTION 4.16. INSOLVENCY . . . . . . . . . . . . . . . . . . . . . 40
SECTION 4.17. PUBLIC UTILITY HOLDING COMPANY ACT . . . . . . . . . 40
ARTICLE V
COVENANTS . . . . . . . . . . . . . . . . . . 41
SECTION 5.01. INFORMATION . . . . . . . . . . . . . . . . . . . . . 41
SECTION 5.02. INSPECTION OF PROPERTY, BOOKS AND
RECORDS . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 5.03. RATIO OF ADJUSTED FUNDED DEBT TO
CONSOLIDATED TOTAL CAPITAL . . . . . . . . . . . . 43
SECTION 5.04. MINIMUM CONSOLIDATED TANGIBLE NET WORTH . . . . . . . 43
SECTION 5.05. RATIO OF CONSOLIDATED CASH FLOW TO
CONSOLIDATED FUNDED DEBT . . . . . . . . . . . . . 43
SECTION 5.06. INTENTIONALLY DELETED . . . . . . . . . . . . . . . . 43
SECTION 5.07. LOANS OR ADVANCES . . . . . . . . . . . . . . . . . . 43
SECTION 5.08. INVESTMENTS . . . . . . . . . . . . . . . . . . . . . 44
SECTION 5.09. NEGATIVE PLEDGE . . . . . . . . . . . . . . . . . . . 45
SECTION 5.10. MAINTENANCE OF EXISTENCE . . . . . . . . . . . . . . 46
SECTION 5.11. DISSOLUTION . . . . . . . . . . . . . . . . . . . . . 47
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SECTION 5.12. CONSOLIDATIONS, MERGERS AND SALES OF
ASSETS . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 5.13. USE OF PROCEEDS . . . . . . . . . . . . . . . . . . . 47
SECTION 5.14. COMPLIANCE WITH LAWS; PAYMENT OF TAXES . . . . . . . 48
SECTION 5.15. INSURANCE . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 5.16. CHANGE IN FISCAL YEAR . . . . . . . . . . . . . . . . 48
SECTION 5.17. MAINTENANCE OF PROPERTY . . . . . . . . . . . . . . . 49
SECTION 5.18. ENVIRONMENTAL NOTICES . . . . . . . . . . . . . . . . 49
SECTION 5.19. ENVIRONMENTAL MATTERS . . . . . . . . . . . . . . . . 49
SECTION 5.20. ENVIRONMENTAL RELEASE . . . . . . . . . . . . . . . . 49
SECTION 5.21. OTHER DEBT . . . . . . . . . . . . . . . . . . . . . 49
SECTION 5.22. TRANSACTIONS WITH AFFILIATES . . . . . . . . . . . . 50
SECTION 5.23. DEBT OF SUBSIDIARIES . . . . . . . . . . . . . . . . 50
ARTICLE VI
DEFAULTS . . . . . . . . . . . . . . . . . . 51
SECTION 6.01. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . 51
SECTION 6.02. NOTICE OF DEFAULT . . . . . . . . . . . . . . . . . . 55
ARTICLE VII
THE AGENT . . . . . . . . . . . . . . . . . . 56
SECTION 7.01. APPOINTMENT; POWERS AND IMMUNITIES . . . . . . . . . 56
SECTION 7.02. RELIANCE BY AGENT . . . . . . . . . . . . . . . . . . 56
SECTION 7.03. DEFAULTS . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 7.04. RIGHTS OF AGENT AS A BANK . . . . . . . . . . . . . . 57
SECTION 7.05. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . 57
SECTION 7.06. CONSEQUENTIAL DAMAGES . . . . . . . . . . . . . . . . 58
SECTION 7.07. PAYEE OF NOTE TREATED AS OWNER . . . . . . . . . . . 58
SECTION 7.08. NONRELIANCE ON AGENT AND OTHER BANKS . . . . . . . . 58
SECTION 7.09. FAILURE TO ACT . . . . . . . . . . . . . . . . . . . 59
SECTION 7.10. RESIGNATION OR REMOVAL OF AGENT . . . . . . . . . . . 59
ARTICLE VIII
CHANGE IN CIRCUMSTANCES; COMPENSATION . . . . . . . . . . . 59
SECTION 8.01. BASIS FOR DETERMINING INTEREST RATE
INADEQUATE OR UNFAIR . . . . . . . . . . . . . . . 60
SECTION 8.02. ILLEGALITY . . . . . . . . . . . . . . . . . . . . . 60
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SECTION 8.03. INCREASED COST AND REDUCED RETURN . . . . . . . . . . 61
SECTION 8.04. BASE RATE LOANS SUBSTITUTED FOR LIBOR
LOANS . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 8.05. COMPENSATION . . . . . . . . . . . . . . . . . . . . 63
SECTION 8.06. INTENTIONALLY DELETED . . . . . . . . . . . . . . . . 64
SECTION 8.07. REPLACEMENT OF BANKS . . . . . . . . . . . . . . . . 64
ARTICLE IX
MISCELLANEOUS . . . . . . . . . . . . . . . . . 65
SECTION 9.01. NOTICES . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 9.02. NO WAIVERS . . . . . . . . . . . . . . . . . . . . . 65
SECTION 9.03. EXPENSES; DOCUMENTARY TAXES . . . . . . . . . . . . . 65
SECTION 9.04. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . 66
SECTION 9.05. SHARING OF SETOFFS . . . . . . . . . . . . . . . . . 66
SECTION 9.06. AMENDMENTS AND WAIVERS . . . . . . . . . . . . . . . 67
SECTION 9.07. NO MARGIN STOCK COLLATERAL . . . . . . . . . . . . . 68
SECTION 9.08. SUCCESSORS AND ASSIGNS . . . . . . . . . . . . . . . 68
SECTION 9.09. CONFIDENTIALITY . . . . . . . . . . . . . . . . . . . 71
SECTION 9.10. REPRESENTATION BY BANKS . . . . . . . . . . . . . . . 71
SECTION 9.11. OBLIGATIONS . . . . . . . . . . . . . . . . . . . . . 71
SECTION 9.12. GEORGIA LAW . . . . . . . . . . . . . . . . . . . . . 72
SECTION 9.13. INTERPRETATION . . . . . . . . . . . . . . . . . . . 72
SECTION 9.14. WAIVER OF JURY TRIAL; CONSENT TO
JURISDICTION . . . . . . . . . . . . . . . . . . . 72
SECTION 9.15. COUNTERPARTS . . . . . . . . . . . . . . . . . . . . 72
SECTION 9.16. SEVERABILITY . . . . . . . . . . . . . . . . . . . . 72
SECTION 9.17. INTEREST . . . . . . . . . . . . . . . . . . . . . . 73
iv
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EXHIBIT A-1 Form of Syndicated Loan Note
EXHIBIT A-2 Form of Money Market Loan Note
EXHIBIT B Form of Opinion of Counsel for the Borrower and
the Guarantors
EXHIBIT C Form of Opinion of Jones, Day, Reavis & Pogue,
Special Counsel for the Banks and 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 Guaranty
EXHIBIT I Form of Money Market Quote Request
EXHIBIT J Form of Money Market Quote
EXHIBIT K Form of Contribution Agreement
Schedule 4.06 ERISA Information
Schedule 4.08 Subsidiaries
Schedule 4.13 Environmental Matters
Schedule 5.12 Fenestration Product Businesses
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<PAGE>
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT dated as of May 31, 1995,
among TJ INTERNATIONAL, INC., the BANKS listed on the signature pages hereof
and WACHOVIA BANK OF GEORGIA, N.A., as Agent, which Amended and Restated
Credit Agreement amends, restates and supersedes that certain Credit
Agreement among the parties hereto dated as of October 12, 1993 (the
"Original Credit Agreement").
The parties hereto agree that the Original Credit Agreement is
amended, restated and superseded in its entirety 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:
"Adjusted Funded Debt" means the sum of (x) Consolidated Funded
Debt, PLUS (y) the product of the Borrower's Consolidated Rental Expense for
the immediately preceding 4 Fiscal Quarters then ended multiplied by 6.
"Adjusted LIBOR 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 LIBOR Rate for such
Interest Period by (ii) 1.00 minus the Reserve Percentage. The Adjusted
LIBOR Rate shall be adjusted automatically on and as of the effective date of
any change in the Reserve Percentage.
<PAGE>
"Affiliate" means (i) any Person that directly, or indirectly
through one or more intermediaries, controls the Borrower (a "Controlling
Person"), (ii) any Person (other than the Borrower or a Subsidiary) which is
controlled by or is under common control with a Controlling Person, or (iii)
any Person (other than a Subsidiary) of which the Borrower owns, directly or
indirectly, 20% or more of the common stock, partnership units 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 partnership agreement or 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.
"Agent's Letter Agreement" means that certain letter agreement,
dated as of April 27, 1995, between the Borrower and the Agent relating to
the structure of the financial accommodations set forth herein, and certain
fees from time to time payable by the Borrower to the Agent, together with
all amendments and modifications thereto.
"Aggregate Commitment" means the sum of all of the Commitments.
"Aggregate Unused Commitment" means the sum of all of the Unused
Commitments.
"Agreement" means this Amended and Restated Credit Agreement,
together with all amendments and modifications hereto.
"Anniversary Date" means each yearly anniversary of October 11,
1995.
"Applicable Margin" means (a) with respect to Base Rate Loans, 0%;
and (b) with respect to LIBOR Loans, (w) if the
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<PAGE>
Borrower's ratio of Consolidated Cash Flow to Consolidated Funded Debt is
greater than 0.60 to 1.0, 0.25% (x) if the Borrower's ratio of Consolidated
Cash Flow to Consolidated Funded Debt is greater than 0.45 to 1.0 but equal
to or less than 0.60 to 1.0, 0.30%, (y) if the Borrower's ratio of
Consolidated Cash Flow to Consolidated Funded Debt is greater than 0.30 to
1.0 but equal to or less than 0.45 to 1.0, 0.375%, and (z) if the Borrower's
ratio of Consolidated Cash Flow to Consolidated Funded Debt is equal to or
less than 0.30 to 1.0, 0.55%. The determination of the Applicable Margin
from time to time shall be made in accordance with Section 2.07(b) and the
calculation of the Borrower's ratio of Consolidated Cash Flow to Consolidated
Funded Debt shall be made in accordance with Section 5.05.
"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, and "Banks" means all
such Banks.
"Bankers' Acceptance" means a bankers' acceptance (x) of a Draft in
Dollars (i) against the liability for which a Bank is not required to
maintain reserves under Regulation D of the Board of Governors of the Federal
Reserve System or any other Authority and (ii) which may or may not be (in
the discretion of any relevant Bank) eligible for discount by member banks of
the Federal Reserve System and (y) made by a Bank for the Borrower as part of
a Money Market Borrowing pursuant to Section 2.03.
"Base Rate" means, for any day, the rate per annum equal to the
higher as of such day of (i) the Prime Rate, and (ii) one-half of one percent
above the Federal Funds Rate.
3
<PAGE>
"Base Rate Loan" means a Syndicated Loan to be made as a Base Rate
Loan pursuant to the applicable Notice of Borrowing, Section 2.02, or Article
VIII, as applicable.
"Borrower" means TJ International, Inc., a Delaware corporation,
and its successors and its permitted assigns.
"Borrowing" means a borrowing hereunder consisting of Loans made to
the Borrower by the Banks and/or Bankers' Acceptances made available to the
Borrower by any of the Banks pursuant to Article II. A Borrowing is a "Base
Rate Borrowing" if such Loans are Base Rate Loans or a "LIBOR Borrowing" if
such Loans are LIBOR Loans. A Borrowing is a "Syndicated Borrowing" if it is
made pursuant to Section 2.01. A Borrowing is a "Money Market Borrowing" if
it contains Money Market Credits pursuant to the procedure outlined in
Section 2.03.
"Capital Stock" means any nonredeemable capital stock of the
Borrower or any Consolidated Subsidiary of the Borrower (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. Section 9601 ET. SEQ., and its
implementing regulations and amendments.
"CERCLIS" means the Comprehensive Environmental Response
Compensation and Liability Inventory System established pursuant to CERCLA.
"Change of Law" has the meaning set forth in Section 8.02.
"Closing Certificate" has the meaning set forth in Section 3.01(e).
"Closing Date" means May 31, 1995.
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor Federal tax code.
4
<PAGE>
"Collateral Account" has the meaning specified in Section 6.01.
"Commitment" means, with respect to each Bank, the amount set forth
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.
"Compliance Certificate" has the meaning set forth in Section
5.01(c).
"Consolidated Cash Flow" means at any date, for any relevant
period, the sum for such period of (w) Consolidated Net Income, 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,
plus (x) depreciation, amortization and other non-cash charges (including
minority interests in the Partnerships), plus (or minus) (y) any increase
(decrease) in deferred taxes of the Borrower and its Consolidated
Subsidiaries.
"Consolidated Funded Debt" means at any date, all Debt of the
Borrower and its Consolidated Subsidiaries, determined on a consolidated
basis.
"Consolidated Interest Expense" for any period means gross interest
expense accrued before capitalized interest and interest income in respect of
Consolidated Funded Debt 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.
"Consolidated Net Worth" means, at any time, the Stockholders'
Equity of the Borrower and its Subsidiaries, as determined in accordance with
GAAP, plus the minority interests in the Partnerships.
5
<PAGE>
"Consolidated Rental Expense" for any period means all payment
obligations of the Borrower and its Consolidated Subsidiaries for such period
under all operating leases and rental agreements.
"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; PROVIDED, HOWEVER, that for purposes of this Agreement and
notwithstanding any provision of GAAP to the contrary, the term "Consolidated
Subsidiary" shall include the Partnerships and their Subsidiaries.
"Consolidated Tangible Net Worth" means, at any time, Consolidated
Net Worth, less the sum of the value, as set forth or reflected on the most
recent consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries, prepared in accordance with GAAP, of:
(A) Any surplus resulting from any write-up of assets
subsequent to December 31, 1994;
(B) All assets which would be treated as intangibles under
GAAP, including without limitation goodwill (whether representing the excess
of cost over book value of assets acquired, or otherwise), trademarks,
tradenames, copyrights, patents and technologies, and unamortized debt
discount and expense;
(C) To the extent not included in (B) of this definition, any
amount at which shares of Capital Stock of the Borrower (other than the
Founder's Stock) appear as an asset on the consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries; and
(D) Loans to stockholders, directors, officers or employees.
6
<PAGE>
"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) Adjusted Funded Debt.
"Contribution Agreement" means that certain Amended and Restated
Contribution Agreement, substantially in the form of EXHIBIT K hereto,
executed and delivered by the Guarantors together with all amendments and
modifications thereto.
"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 and
salary and other normal accruals (other than interest accruals) arising in
the ordinary course of business, (iv) all obligations of such Person as
lessee under capital leases, (v) all obligations of such Person, contingent
or otherwise, to reimburse any bank or other Person in respect of amounts
payable under a bankers' acceptance, (vi) all Redeemable Preferred Stock of
such Person (in the event such Person is a corporation), (vii) all
obligations of such Person, contingent or otherwise, to reimburse any bank or
other Person in respect of the face amount of any outstanding letter of
credit or similar instrument, (viii) all Debt of others secured by a Lien on
any asset of such Person, whether or not such Debt is assumed by such Person,
(ix) all Debt of others Guaranteed by such Person, and (x) all obligations of
such Person to purchase securities which arise out of or in
7
<PAGE>
connection with the sale of the same or substantially similar securities.
"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 or Bankers'
Acceptance, on any day, the sum of the Base Rate plus 2%.
"Depreciation" means for any period the sum of all depreciation
expenses of the Borrower and its Consolidated Subsidiaries for such period,
as determined in accordance with GAAP.
"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.
"Draft" means a draft in form and substance satisfactory to any
Bank making a Bankers' Acceptance, duly executed in blank by the Borrower or
on its behalf by a Bank under a power of attorney in favor of such Bank from
the Borrower.
"Environmental Authority" means any foreign, federal, state, local
or regional government that exercises any form of jurisdiction or authority
under 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
8
<PAGE>
with any Environmental Requirement, whether or not incorporated in a
judgment, decree or order.
"Environmental Liabilities" means any liabilities, whether accrued,
contingent or reflected on a balance sheet, arising from and in any way
associated with any Environmental Requirements or based upon or related to
common law.
"Environmental Notices" means notice from any Environmental
Authority or by 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 (except rulemaking) arising from or in any way associated with
any Environmental Requirement.
"Environmental Releases" means releases 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, and decrees.
"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.
"Event of Default" has the meaning set forth in Section 6.01.
9
<PAGE>
"Face Amount" means, in respect of a Draft or Bankers' Acceptance,
the amount payable to the holder thereof on its maturity.
"Facility Fee" has the meaning specified in Section 2.07(a).
"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 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.
"Fenestration Products Business" means the business of
manufacturing and marketing doors, windows and other fenestration products.
"Fiscal Quarter" means any fiscal quarter of the Borrower.
"Fiscal Year" means any fiscal year of the Borrower.
"Founder's Stock" means any and all shares of Capital Stock of the
Borrower owned or thereafter acquired by Harold E. Thomas, Phyllis E. Thomas,
Arthur L. Troutner or Katherine Troutner. The amount of Founder's Stock
outstanding as of March 27, 1995, is approximately 1,890,000 shares. The
quoted sales prices (closing) of the Borrower's common shares of Capital
Stock
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during 1994 ranged from a low of $14-3/4 to a high of $32-1/8 per share.
"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 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, individually and collectively, (i) the
Partnerships, (ii) Norco Windows, Inc., a Wisconsin corporation, (iii) Trus
Joist MacMillan Limited, a British Columbia corporation, (iv) Trus-Joist
(Western) Ltd., a Province of New Brunswick corporation, (v) Nordel Trus
Joist MacMillan Inc., a British Columbia corporation, (vi) Trus Joist
MacMillan, Inc., a Delaware corporation, (vii) Systems Erection, Inc., an
Idaho corporation, (viii) Trus Joist Corporation, a Delaware corporation,
(ix) TJM Facilities Corporation, a Delaware corporation, and (x) any other
Person delivering a Guaranty to the Agent (including pursuant to the last
sentence of Section
11
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4.08), together with each of their successors and permitted assigns.
"Guaranty(ies)" means, individually and collectively, (i) those
certain respective Amended and Restated Guaranty Agreements guaranteeing
payment of the obligations of the Borrower under this Agreement (including
the Money Market Credits of the Borrower) and the Notes executed by the
Borrower, each substantially in the form of EXHIBIT H hereto, executed and
delivered by the Guarantors, jointly and severally, to the Agent, for the
ratable benefit of each of the Banks, together with all amendments and
modifications thereto and (ii) any other guaranty agreement delivered to the
Agent, each substantially in the form of EXHIBIT H hereto, for the purpose of
providing a Guarantee of any of the Borrower's or the Guarantors' obligations
under any of the Loan Documents, together with all amendments and
modifications thereto.
"Hazardous Materials" means (a) solid or hazardous waste, as
defined in the Resource Conservation and Recovery Act of 1980, 42 U.S.C.
Section 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) petroleum, including crude oil or any
fraction thereof which is not otherwise specifically listed or designated as
a hazardous substance under subparagraphs (A) through (F) of section 101(14)
of CERCLA, (d) "chemical substances" and "mixtures", as defined in the Toxic
Substances Control Act of 1976, or in any applicable state or local law or
regulation or (e) 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 LIBOR 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:
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(a) any Interest Period, subject to paragraph (c)
below, which would otherwise end on a day which is not a
LIBOR Business Day shall be extended to the next succeeding
LIBOR Business Day unless such LIBOR Business Day falls in
another calendar month, in which case such Interest Period
shall end on the next preceding LIBOR Business Day;
(b) any Interest Period which begins on the last LIBOR
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 LIBOR Business Day of the appropriate
subsequent calendar month; and
(c) no Interest Period may be selected which would end
after the Termination Date; and
(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 may be selected which would end
after the Termination 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
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Office) or such other office as such Bank may hereafter designate as its
Lending Office by notice to the Borrower and the Agent.
"LIBOR Business Day" means any Domestic Business Day on which
dealings in Dollar deposits are carried out in the London interbank market.
"LIBOR Loan" means, a Syndicated Loan in Dollars to be made as part
of a LIBOR Borrowing, pursuant to the applicable Notice of Borrowing.
"LIBOR Rate" means, for the Interest Period of any Syndicated 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
Loan offered for a term comparable to such Interest Period, which rates
appear on the Reuters Screen LIBO Page as of 11:00 A.M., London time, 2 LIBOR
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 "LIBOR Rate" will be 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 applicable page, the "LIBOR 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
two major banks in New York City, selected by the Agent, at approximately
10:00 A.M., New York City time, 2 LIBOR 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 Loan.
"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
14
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statute or other law, or 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, a LIBOR Loan, or a Money Market Loan
and "Loans" means Base Rate Loans, LIBOR Loans, or Money Market Loans.
"Loan Documents" means this Agreement, the Notes, the Guaranties,
any other document evidencing, relating to or securing the Loans or Bankers'
Acceptances, including, without limitation, any Drafts, and any other
document or instrument delivered from time to time in connection with this
Agreement, the Notes, the Guaranties or the Loans or Bankers' Acceptances, as
such documents and instruments may be amended or modified from time to time.
"Majority Banks" means at any time Banks having at least 51% of the
Aggregate Commitment or, if the Commitments are no longer in effect, Banks
holding at least 51% of the aggregate outstanding principal amount (or net
discounted proceeds, as applicable) of the Syndicated Loan Notes and the
Money Market Credits.
"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 current or future financial condition,
operations, business, or properties of the Borrower
15
<PAGE>
and its Consolidated Subsidiaries taken as a whole, (b) 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
(including the rights and remedies of the Agent and the Banks) of any Loan
Document.
"Money Market Credit" means any one, or more, or all of the Money
Market Loans and Bankers' Acceptances.
"Money Market Loan Notes" means the amended and restated promissory
notes (and original issue notes with respect to Bank of Tokyo, Ltd.) of the
Borrower, substantially in the form of EXHIBIT A-2, evidencing the
obligation of the Borrower to repay Money Market Loans, together with all
amendments, consolidations, modifications, renewals and supplements thereto.
"Money Market Loans" means Loans made pursuant to the terms and
conditions set forth in Section 2.03 hereof.
"Money Market Quote" has the meaning specified in Section 2.03.
"Money Market Quote Request" has the meaning specified in Section
2.03.
"Money Market Rate" has the meaning specified in Section 2.03.
"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.
"Net Proceeds of Capital Stock" means any proceeds received by the
Borrower or a Consolidated Subsidiary in respect of the issuance of Capital
Stock, after deducting therefrom all reasonable and customary costs and
expenses incurred by the
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<PAGE>
Borrower or such Consolidated Subsidiary directly in connection with the
issuance of such Capital Stock.
"Notes" means, individually and collectively, as the context shall
require or permit, each of the Syndicated Loan Notes and the Money Market
Loan Notes.
"Notice of Borrowing" has the meaning set forth in Section 2.02(a).
"Participant" has the meaning set forth in Section 9.08(b).
"Partnerships" means (i) Trus Joist MacMillan a Limited
Partnership, a Delaware limited partnership, and its successors and permitted
assigns, and Outlook Window Partnership, L.P., a Delaware limited
partnership, and its successors and permitted assigns.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Performance Pricing Determination Date" has the meaning set forth
in Section 2.07(b).
"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
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then making or accruing an obligation to make contributions or has within the
preceding five 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.
"Quarterly Date" means the last day of each Fiscal Quarter.
"Quotation Date" has the meaning specified in Section 2.03.
"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.
"Regulation D" means Regulation D 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 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.
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"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.
"Related Business Acquisition" means any acquisition (either of
stock or assets) of any Person (or division thereof) in the business of
manufacturing and marketing specialty building products.
"Required Banks" means at any time Banks having at least 66 2/3% of
the aggregate amount of the Commitments or, if the Commitments are no longer
in effect, Banks holding at least 66 2/3% of the aggregate outstanding
principal amount of the Syndicated Loan Notes and the Money Market Credits.
"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 LIBOR 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).
"Secured Timber Loans" means loans made by the Borrower or any of
the Subsidiaries in the ordinary course of business to suppliers of timber or
logs, to enable such suppliers to acquire such timber or logs for resale to
the Borrower or any of the Subsidiaries, PROVIDED such loans (i) do not
exceed the supplier's cost thereof, (ii) are evidenced by notes or other
written obligations duly executed and delivered to the Borrower
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<PAGE>
or any of the Subsidiaries and (iii) are fully secured by perfected first
priority Liens on the timber or logs so acquired.
"Stated Maturity Date" means, the Stated Maturity Date therefor
specified by the Bank in the applicable Money Market Quote, subject to the
provisions of Section 2.03(b)(iii).
"Stockholders' Equity" 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. Shareholders' equity 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.
"Subsidiary" means any corporation, partnership 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 or a Subsidiary of the Borrower and, in any event, shall include the
Partnerships.
"Syndicated Loan Notes" means the amended and restated promissory
notes (and original issue notes with respect to Bank of Tokyo, Ltd.) of the
Borrower, substantially in the form of EXHIBIT A-1, evidencing the obligation
of the Borrower to repay Syndicated Loans, together with all amendments,
consolidations, modifications, renewals and supplements thereto.
"Syndicated Loans" means Base Rate Loans or LIBOR Loans made
pursuant to the terms and conditions set forth in Section 2.01.
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"Termination Date" means October 11, 1998, unless such date is
otherwise extended by the Banks pursuant to Section 2.05(d), in their sole
and absolute discretion.
"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 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 at any date, with respect to any Bank, an
amount equal to its Commitment less the aggregate outstanding principal
amount of its Syndicated Loans (but not its Money Market Credits).
"Wachovia" means Wachovia Bank of Georgia, 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 (and including without limitation, as specified in
the definitions of "Consolidated Net Worth", "Consolidated Subsidiaries" and
"Subsidiary"), all terms of an accounting character used herein shall be
interpreted, all
21
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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 respective 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 any of the 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 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.
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ARTICLE II
THE CREDITS
SECTION 2.01. COMMITMENTS TO LEND. Each Bank severally agrees, on
the terms and conditions set forth herein, to make Syndicated Loans to the
Borrower from time to time before the Termination Date; PROVIDED that, (i)
immediately after each such Syndicated Loan is made, the aggregate principal
amount of Syndicated Loans by such Bank shall not exceed the amount of its
Commitment, and (ii) at no time shall the aggregate outstanding principal
amount of all Loans to the Borrower and aggregate outstanding principal
amount (or discounted net proceeds) of Bankers' Acceptances made available to
the Borrower exceed the Aggregate Commitment. All Loans to the Borrower and
all Bankers' Acceptances made available to the Borrower shall be considered
in determining whether the Aggregate Commitment has been exceeded in
calculating the amount available for Borrowing by the Borrower hereunder and
in determining the amount of any mandatory prepayments required by Section
2.11, but Money Market Credits shall not reduce the Commitment, or be
considered in determining the Unused Commitment, of any Bank. Each
Syndicated Borrowing under this Section 2.01 shall be in an aggregate
principal amount of $5,000,000 or any larger multiple of $1,000,000 (except
that any such Syndicated Borrowing may be in the aggregate amount of the
Unused Commitments) and shall be made from the several Banks ratably in
proportion to their respective Unused Commitments. Within the foregoing
limits, the Borrower may borrow under this Section 2.01, repay or, to the
extent permitted by Section 2.10, prepay Syndicated Loans and reborrow under
this Section at any time before the Termination Date.
SECTION 2.02. METHOD OF BORROWING. (a) The Borrower shall give
the Agent notice (a "Notice of Borrowing"), which shall be substantially in
the form of EXHIBIT E, on the same day for a Base Rate Borrowing, and at
least 3 LIBOR Business Days' notice prior to each LIBOR Borrowing (all
notices being effective
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on the day delivered so long as the Agent shall have received same prior to
11:00 A.M., Atlanta, Georgia time) specifying:
(i) the date of such Borrowing, which shall be a Domestic
Business Day in the case of a Base Rate Borrowing or a LIBOR Business
Day in the case of a LIBOR Borrowing,
(ii) the aggregate amount of such Borrowing,
(iii) whether any Syndicated Loans comprising such Borrowing
are to be Base Rate Loans or LIBOR Loans, and
(iv) in the case of an LIBOR 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 shall not thereafter be revocable
by the Borrower.
(c) Not later than 2:00 P.M. (Atlanta, Georgia time) on the date
of each Syndicated Borrowing each Bank in the case of a Syndicated Borrowing
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 referred to in
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, (i) in
the case of a Base Rate Borrowing, no later than 1:00 P.M. (local time at
such address) on the same day as such Base Rate Borrowing and (ii) in the
case of any other type of Syndicated Borrowing no later than 4:00 P.M. (local
time at such address) on the LIBOR Business Day before the date of such
Borrowing 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
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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 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. If the Agent does not
exercise its option to advance funds for the account of such Bank, it shall
forthwith notify the Borrower of such decision.
(d) If any Bank makes a new Syndicated Loan hereunder on a day on
which the Borrower is to repay all or any part of an outstanding Syndicated
Loan from such Bank, such Bank shall apply the proceeds of its new Syndicated
Loan to make such repayment and only an amount equal to the difference (if
any) between the amount being borrowed and the amount being repaid shall be
made available by such Bank to the Agent in the case of Syndicated Loans as
provided in paragraph (c) of this Section, or remitted by the Borrower to the
Agent, as provided in Section 2.12.
(e) Notwithstanding anything to the contrary contained in this
Agreement, including without limitation Section 2.01 and Section 2.03, no
LIBOR Borrowing or Money Market 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, except as Base Rate Loans pursuant to
clauses (x) and (y), respectively, of Section 2.02(f) and subject to the
proviso at the end of Section 2.02(f).
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(f) In the event that a Notice of Borrowing fails to specify
whether the Syndicated Loans comprising a Syndicated Borrowing are to be Base
Rate Loans or LIBOR Loans, such Loans shall be made as Base Rate Loans. If
the Borrower is otherwise entitled under this Agreement to repay any
Syndicated Loans maturing at the end of an Interest Period applicable thereto
with the proceeds of a new Syndicated Borrowing and the Borrower fails to
repay such Syndicated Loans using its own moneys and fails to give a Notice
of Borrowing in connection with such new Syndicated Borrowing or if a Default
or Event of Default shall have occurred and shall not have been cured or
waived, a new Syndicated Borrowing shall be deemed to be made on the date
such Syndicated Loans mature in an amount equal to the principal amount of
the Syndicated Loans so maturing, and the Syndicated Loans comprising such
new Syndicated Borrowing shall be Base Rate Loans, PROVIDED, HOWEVER, that no
such deemed Loan in this paragraph (f) shall constitute a cure or waiver of
any Default or Event of Default then in existence (including without
limitation the Default arising from the failure to repay the maturing Loan at
the end of the Interest Period) or a limitation of or restriction on the
right of the Agent, at the direction of the Required Banks, to accelerate the
obligations of the Borrower hereunder and impose the Default Rate pursuant to
clause (iii) of Section 6.01, or of any other rights and remedies contained
in Section 6.01.
(g) Notwithstanding anything to the contrary contained herein,
including, without limitation Section 2.01 and Section 2.03, there shall not
be more than 10 Interest Periods and/or Stated Maturity Dates applicable to
the Loans and/or Bankers' Acceptances at any given time.
SECTION 2.03. MONEY MARKET CREDITS. (a) In addition to making
Syndicated Borrowings the Borrower may, as set forth in this Section 2.03,
request the Banks to make offers to make Money Market Borrowings available to
the Borrower. The Banks may, but shall have no obligation to, make such
offers and the Borrower may, but shall have no obligation to, accept any such
offers in the manner set forth in this Section 2.03, PROVIDED that:
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(i) there may be no more than 10 Interest Periods
and/or Stated Maturity Dates applicable to the Loans and/or
Bankers' Acceptances at any given time;
(ii) the aggregate principal amount of all Money
Market Credits, (which means, with respect to Bankers'
Acceptances, discounted net proceeds) together with the
aggregate principal amount of all Syndicated Loans, at any
one time outstanding shall not exceed the Aggregate
Commitment at such time.
(b) When the Borrower wishes to request offers to make Money
Market Credits, it shall give the Agent (which shall promptly notify the
Banks) notice substantially in the form of EXHIBIT I hereto (a "Money Market
Quote Request") so as to be received no later than 11:00 A.M. (Atlanta,
Georgia time) at least 1 Domestic Business Day prior to the date of the Money
Market Borrowing proposed therein (or such other time and date as the
Borrower and the Agent, with the consent of the Required Banks, may agree),
specifying:
(i) the proposed date of such Money Market Borrowing,
which shall be a Domestic Business Day (the "Quotation
Date");
(ii) whether such Money Market Borrowing is to be
comprised of Money Market Loans and/or Bankers' Acceptances;
(iii) the Stated Maturity Date for repayment of each
Money Market Credit to be made as part of such Money Market
Borrowing (which Stated Maturity Date shall be that date
occurring not less than 7 days, but not greater than 185
days from the date of such Money Market Borrowing);
PROVIDED, that the Stated Maturity Date for any Money Market
Credit may not extend beyond the Termination Date (as in
effect on the date of such Money Market Quote Request); and
(iv) the aggregate amount of principal, or, in the
case of Bankers' Acceptances, discounted net proceeds, to be
received by the Borrower as a result of such Money Market
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Borrowing, which shall be at least $5,000,000 (and in larger
integral multiples of $1,000,000) but shall not cause the
limits specified in Section 2.03(a) to be violated.
The Borrower may request offers to make Money Market Credits having up to 3
different Stated Maturity Dates in a single Money Market Quote Request;
PROVIDED that the request for each separate Stated Maturity Date shall be
deemed to be a separate Money Market Quote Request for a separate Money
Market Borrowing. Except as otherwise provided in the preceding sentence,
after the first Money Market Quote Request has been given hereunder, no Money
Market Quote Request shall be given until at least 5 Domestic Business Days
after all prior Money Market Quote Requests have been fully processed by the
Agent, the Banks and the Borrower pursuant to this Section 2.03.
(c) (i) Each Bank may, but shall have no obligation
to, submit a response containing an offer to make a Money
Market Credit substantially in the form of EXHIBIT J hereto
(a "Money Market Quote") in response to any Money Market
Quote Request; provided, that, if the Borrower's request
under Section 2.03(b) specified more than 1 Stated Maturity
Date, such Bank may, but shall have no obligation to, make a
single submission containing a separate offer for each such
Stated Maturity Date and each such separate offer shall be
deemed to be a separate Money Market Quote. Each Money
Market Quote must be submitted to the Agent not later than
10:30 A.M. (Atlanta, Georgia time) on the Quotation Date (or
such other time and date as the Borrower and the Agent, with
the consent of the Required Banks, may agree); provided that
any Money Market Quote submitted by Wachovia may be
submitted, and may only be submitted, if Wachovia notifies
the Borrower of the terms of the offer contained therein not
later than 10:15 A.M. (Atlanta, Georgia time) on the
Quotation Date (or 15 minutes prior to the time that the
other Banks must have submitted their respective Money
Market Quotes). Subject to Section 6.01, any Money Market
Quote so made shall be irrevocable except with the written
consent of the Agent given on the instructions of the
Borrower.
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(ii) Each Money Market Quote shall specify:
(A) whether such Money Market Quote is in respect of
Money Market Loans and/or Bankers' Acceptances as requested
by the Borrower in the applicable Money Market Quote
Request;
(B) the proposed date of the Money Market Borrowing
and the Stated Maturity Date therefor, and, with respect to
Money Market Loans, the date (or dates) that interest shall
be due and payable if interest payments shall be required
other than on the relevant Stated Maturity Date;
(C) the principal amount, or, in the case of Bankers'
Acceptances, discounted net proceeds amount, of the Money
Market Credit which the quoting Bank is willing to make for
the applicable Money Market Quote, which principal amount,
or, in the case of Bankers' Acceptances, discounted net
proceeds amount, (x) may be greater than or less than the
Commitment of the quoting Bank, (y) shall be at least
$1,000,000 or a larger integral multiple of $1,000,000, and
(z) may not exceed the principal amount, or, in the case of
Bankers' Acceptances, discounted net proceeds amount, of the
Money Market Borrowing for which offers were requested;
(D) (x) with respect to Money Market Loans, the rate
of interest per annum (rounded upwards, if necessary, to the
nearest 1/100th of 1%) offered for each such Money Market
Loan, and, (y) with respect to each Bankers' Acceptance,
such all in rate (including, any commissions, discounts and
yields to maturity) which shall be applicable to the
relevant Bankers' Acceptance (such amounts being determined
pursuant to the immediately preceding clauses (x) and (y)
being hereinafter referred to as the "Money Market Rate");
and
(E) the identity of the quoting Bank.
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Unless otherwise agreed by the Agent and the Borrower, no
Money Market Quote shall contain qualifying, conditional or
similar language or propose terms other than or in addition
to those set forth in the applicable Money Market Quote
Request (other than setting forth the principal amount, or,
in the case of Bankers' Acceptances, discounted net proceeds
amount, of the Money Market Loan which the quoting Bank is
willing to make for the applicable Interest Period).
(d) The Agent shall as promptly as practicable after the Money
Market Quote is submitted (but in any event not later than 11:00 A.M.
(Atlanta, Georgia time)) notify the Borrower of the terms (i) of any Money
Market Quote submitted by a Bank that is in accordance with Section 2.03(c)
and (ii) of any Money Market Quote that amends, modifies or is otherwise
inconsistent with a previous Money Market Quote submitted by such Bank with
respect to the same Money Market Quote Request. Any such subsequent Money
Market Quote shall be disregarded by the Agent unless such subsequent Money
Market Quote is submitted solely to correct a manifest error in such former
Money Market Quote. The Agent's notice to the Borrower shall specify (A) the
aggregate principal amounts of the Money Market Borrowing for which offers
have been received and (B) the respective principal amounts (or Face Amounts)
and Money Market Rates so offered by each Bank (identifying the Bank that
made each Money Market Quote).
(e) Not later than 11:30 A.M. (Atlanta, Georgia time) on the
Quotation Date (or such other time and date as the Borrower and the Agent,
with the consent of the Required Banks, may agree), the Borrower shall notify
the Agent of its acceptance or nonacceptance of the offers so notified to it
pursuant to Section 2.03(d) and the Agent shall promptly notify each affected
Bank. In the case of acceptance, such notice shall specify the aggregate
principal amount of offers (for each Stated Maturity Date) that are accepted.
The Borrower may accept any Money Market Quote in whole or in part; PROVIDED
THAT:
(i) the aggregate principal amount, or, in the case of
Bankers' Acceptances, discounted net proceeds amount, of
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each Money Market Borrowing may not exceed the applicable
amount set forth in the related Money Market Quote Request;
(ii) the aggregate principal amount, or, in the case
of Bankers' Acceptances, discounted net proceeds amount, of
each Money Market Borrowing shall be at least $5,000,000
(and in larger multiples of $1,000,000) but shall not cause
the limits specified in Section 2.03(a) to be violated;
(iii) acceptance of offers may only be made in
ascending order of Money Market Rates; and
(iv) the Borrower may not accept any offer where the
Agent has advised the Borrower that such offer fails to
comply with Section 2.03(c)(ii) or otherwise fails to comply
with the requirements of this Agreement (including without
limitation, Section 2.03(a)).
If offers are made by 2 or more Banks with the same Money Market Rates for a
greater aggregate principal amount, or, in the case of Bankers' Acceptances,
discounted net proceeds amount, than the amount in respect of which offers
are accepted for the related Stated Maturity Date, the principal amount, or,
in the case of Bankers' Acceptances, discounted net proceeds amount, of Money
Market Credits in respect of which such offers are accepted shall be
allocated by the Agent among such Banks as nearly as possible (in multiples
of $100,000) in proportion to the aggregate principal amount, or, in the case
of Bankers' Acceptances, discounted net proceeds amount, of such offers.
Determinations by the Agent of the amounts of Money Market Credits shall be
conclusive in the absence of manifest error.
(f) By its acceptance of a Money Market Quote of any Bank to make
a Bankers' Acceptance, the Borrower shall be deemed to have agreed to (x)
promptly furnish (and in any event not later than 10:00 A.M., Atlanta time,
on the acceptance date of such Bankers' Acceptance) to such Bank such
documentation as such Bank shall reasonably request in connection with such
Bankers' Acceptance, and (y) promptly execute and deliver to such Bank such
instruments, agreements and other documents as such Bank
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shall reasonably request in connection with such Bankers' Acceptance,
including such Drafts and other documentation as such Bank usually requires
in connection with its bankers' acceptances; PROVIDED, THAT, such
documentation shall not contain any provisions which are inconsistent with
the terms of this Agreement (E.G. cash collateral provisions).
(g) Any Bank whose offer to make any Money Market Credit has been
accepted shall, not later than 1:30 P.M. (Atlanta, Georgia time) on the
Quotation Date, make the appropriate amount of such Money Market Credit
available to the Agent at its address referred to in Section 9.01 in
immediately available funds. The amount so received by the Agent shall,
subject to the terms and conditions of this Agreement, be made available to
the Borrower on such date by depositing the same, in immediately available
funds, in an account of the Borrower maintained with Wachovia.
SECTION 2.04. NOTES. (a) The Syndicated Loans of each Bank shall
be evidenced by a single Syndicated 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 Commitment.
(b) The Money Market Loans made by any Bank to the Borrower shall
be evidenced by a single Money Market 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 the Aggregate Commitment as of the Closing Date.
(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 of its Syndicated Loan Note or Money Market Loan Note, as appropriate,
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
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respective principal amounts owing and unpaid on such Bank's Notes; PROVIDED
that the failure of any Bank to make any such 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 endorse its Notes 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 Syndicated Loan
included in any Syndicated 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) Each Money Market Credit included in any Money Market
Borrowing shall mature, and the principal amount thereof (or, with respect to
Bankers' Acceptances, Face Amount thereof) shall be due and payable upon the
Stated Maturity Date therefor.
(c) In addition to the foregoing, the outstanding principal amount
(or Face Amount) of the Loans and Bankers' Acceptances, if any, together with
all accrued but unpaid interest thereon, if any, shall be due and payable on
October 11, 1998, unless the Termination Date is otherwise extended by the
Banks, in their sole and absolute discretion. Upon the written request of
the Borrower, which request shall be delivered to the Agent at least 90 days
prior to each Anniversary Date, the Banks shall have the option (without any
obligation whatsoever so to do) of extending the Termination Date for
additional one-year periods on the first and second Anniversary Dates. In
the event that a Bank chooses not to extend the Termination Date for such an
additional one-year period, notice shall be given by such Bank to the
Borrower and the Agent at least 60 days prior to the relevant Anniversary
Date; provided, that should a Bank provide such notice with respect to the
first Anniversary Date, there shall be no need for any future notices to be
provided with respect to the second Anniversary Date by such Bank, and the
Termination Date shall not be extended with respect to any of the Banks
unless the Required Banks are willing to extend the Termination Date and (x)
the remaining Banks shall purchase
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ratable assignments (without any obligation so to do) from such terminating
Bank (in the form of an Assignment and Acceptance) in accordance with their
respective percentage of the remaining Aggregate Commitment; PROVIDED, THAT,
such Banks shall be provided such opportunity (which opportunity shall allow
such Banks at least 15 Domestic Business Days in which to make a decision)
prior to the Borrower finding another bank pursuant to the immediately
succeeding clause (y); and, PROVIDED, FURTHER, THAT, should any of the
remaining Banks elect not to purchase such an assignment, then, such other
remaining Banks shall be entitled to purchase an assignment from any
terminating Bank which includes the ratable interest that was otherwise
available to such non-purchasing remaining Bank or Banks, as the case may be,
(y) the Borrower shall find another bank, acceptable to the Agent, willing to
accept an assignment from such terminating Bank (in the form of an Assignment
and Acceptance) or (z) the Borrower shall reduce the Aggregate Commitment in
an amount equal to the Commitment of any such terminating Bank. In
furtherance of the foregoing, if the Termination Date is not extended for an
additional one year period on or before the first Anniversary Date, then the
Borrower may not request that the Termination Date be extended for an
additional one year period upon the second Anniversary Date. In no event may
the Termination Date extend beyond the fifth Anniversary Date.
SECTION 2.06. INTEREST RATES; ACCRETION OF PRINCIPAL OF BANKERS'
ACCEPTANCES. (a) 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 applicable Base Rate for
such day plus the Applicable Margin. Such interest shall be payable for each
Interest Period on the last day thereof.
(b) Each LIBOR 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 Adjusted
LIBOR 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
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than 90 days, at intervals of 90 days after the first day thereof.
(c) Each Money Market Loan shall bear interest on the outstanding
principal amount thereof, for each day from the date such Money Market Loan
is made until it becomes due, at a rate per annum equal to the applicable
Money Market Rate set forth in the relevant Money Market Quote. Such
interest shall be payable at the time (or times) specified in the relevant
Money Market Quote for such Money Market Loan, or, if no such time is
specified, on the Stated Maturity Date thereof.
(d) The discounted net proceeds of each Bankers' Acceptance shall
accrete thereon at a rate per annum equal to the relevant Money Market Rate
applicable thereto.
(e) After the date any principal or Face Amount of any Loan or
Banker's Acceptance is due and payable (whether on the Stated Maturity Date,
upon acceleration, or otherwise), or after any other monetary obligation of
the Borrower to the Agent or the Banks shall have become due and payable and
is not then paid, the Borrower shall pay, but only to the extent permitted by
law, interest (after as well as before judgment) equal to the Default Rate.
SECTION 2.07. FEES. (a) The Borrower shall pay to the Agent for
the ratable account of each Bank an annual facility fee (the "Facility Fee")
on the highest Aggregate Commitment in effect, irrespective of usage, payable
each Fiscal Quarter as follows: (i) if the Borrower's ratio of Consolidated
Cash Flow to Consolidated Funded Debt is greater than 0.60 to 1.0, 0.125% per
annum; (ii) if the Borrower's ratio of Consolidated Cash Flow to Consolidated
Funded Debt is greater than 0.45 to 1.0 but equal to or less than 0.60 to
1.0, 0.15% per annum; (iii) if the Borrower's ratio of Consolidated Cash Flow
to Consolidated Funded Debt is greater than 0.30 to 1.0 but equal to or less
than 0.45 to 1.0, 0.175% per annum and (iv) if the Borrower's ratio of
Consolidated Cash Flow to Consolidated Funded Debt is equal to or less than
0.30 to 1.0, 0.25% per annum. The Facility Fee shall accrue at all times
from and including the Closing Date to but
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excluding the Termination Date and shall be payable in arrears on each
Quarterly Date and on the Termination Date. In each instance the Borrower's
ratio of Consolidated Cash Flow to Consolidated Funded Debt shall be
calculated in accordance with the provisions of Section 5.05.
(b) In determining the amounts to be paid by the Borrower pursuant
to Sections 2.06(a), 2.06(b), or 2.07(a), the Borrower and the Banks shall
refer to the Borrower's most recent financial statements delivered to the
Banks pursuant to Section 5.01(a) (the "Audited Statements") or Section
5.01(b) (the "Unaudited Statements"); PROVIDED, THAT, any necessary changes
in the Applicable Margin or the fees to be paid shall not be effective until
the next succeeding Performance Pricing Determination Date, if such financial
statements are delivered prior to (x) 45 days following the end of the
Borrower's first 3 Fiscal Quarters of each Fiscal Year or (y) 90 days
following the end of the Borrower's Fiscal Year, as applicable. For purposes
hereof, "Performance Pricing Determination Date" shall mean each date that
occurs (x) 45 days after the end of each of the Borrower's first 3 Fiscal
Quarters of each Fiscal Year and (y) 90 days after the end of each Fiscal
Year of the Borrower. All determinations hereunder shall be made by the
Agent unless the Required Banks shall object to any such determination.
(c) 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 set forth
in the Agent's Letter Agreement.
SECTION 2.08. OPTIONAL TERMINATION OR REDUCTION OF COMMITMENTS.
The Borrower may, upon at least 3 Domestic Business Days' notice to the Agent
(which notice the Agent shall promptly forward to the Banks), terminate at
any time, or proportionately reduce the Commitments from time to time by an
aggregate amount of at least $5,000,000, or any larger multiple of
$1,000,000. If the aggregate outstanding principal amount of all Syndicated
Loans and Money Market Credits exceeds the remaining Aggregate Commitment,
the Borrower will prepay the Loans by an amount equal to such excess,
subject, however, to the
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provisions of Section 8.05. In making any such prepayment, the Borrower
shall designate the type of Loan to which such prepayment shall be applied.
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.
The Commitments shall terminate on the Termination Date and any Loans
(together with accrued interest thereon) and Bankers' Acceptances then
outstanding shall be due and payable on such date.
SECTION 2.10. OPTIONAL PREPAYMENTS. (a) The Borrower may, upon at
least 1 Domestic Business Day's notice to the Agent (which notice the Agent
shall promptly forward to the Banks), prepay any Base Rate Borrowing in whole
or in part at any time, in minimum amounts of $1,000,000 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 (but subject in any event
to Section 8.05), the Borrower may not prepay all or any portion of the
principal amount of any LIBOR Loan or Money Market Credit prior to the end of
the relevant Interest Period or Stated Maturity Date applicable to such Loan
or Bankers' Acceptance.
(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
shall not thereafter be revocable by the Borrower.
SECTION 2.11. MANDATORY PREPAYMENTS. On each date on which the
Commitments are reduced pursuant to Section 2.08 or Section 2.09, the
Borrower shall repay or prepay such principal amount of the outstanding
Loans, as may be necessary so that
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after such payment the aggregate unpaid principal amount of the Loans
(together with interest accrued thereon) and Bankers' Acceptances (using
discounted net proceeds) does not exceed the amount of the Aggregate
Commitment as then reduced.
SECTION 2.12. GENERAL PROVISIONS AS TO PAYMENTS. (a) The Borrower
shall make each payment of principal of, and interest on, the Loans, Bankers'
Acceptances and of fees hereunder, not later than 11:30 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 (and,
following the occurrence and during the continuance of an Event of Default,
for application by such Bank against amounts owing to such Bank by the
Borrower in such order as such Bank shall elect) its ratable share of each
such payment received by the Agent for the account of the Banks; PROVIDED,
THAT, should the Agent actually receive any relevant payment from the
Borrower prior to 11:30 A.M. (Atlanta, Georgia time) on the date when due,
the Agent shall initiate, prior to 5:00 P.M. (Atlanta, Georgia time), the
distribution process (by wire or otherwise) to such Bank of each such Bank's
ratable portion of any payment received by the Agent.
(b) Whenever any payment of principal of, or interest on, the Base
Rate Loans, Money Market Credits or of fees 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 LIBOR Loans shall be due on a day which is
not a LIBOR Business Day, the date for payment thereof shall be extended to
the next succeeding LIBOR Business Day unless such LIBOR Business Day falls
in another calendar month, in which case the date for payment thereof shall
be the next preceding LIBOR Business Day.
(c) All payments of principal, interest and fees and all other
amounts to be made by a Borrower pursuant to this Agreement with respect to
any Loan, Money Market Credit or fee relating thereto shall be paid without
deduction for, and free from, any tax, imposts, levies, duties, deductions,
or
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withholdings of any nature now or at anytime hereafter imposed by any
governmental authority or by any taxing authority thereof or therein
excluding taxes imposed on or measured by a Bank's net income ("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 the Agent in respect
of which such deduction or withholding is made all receipts and other
documents evidencing such payment and shall pay to each Bank additional
amounts as may be necessary in order that the amount received by that Bank
after the required withholding or other payment shall equal the amount that
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,
Money Market Credit or fee request, the Borrower shall furnish to the Agent,
at the Agent's request, a certificate from each applicable taxing authority
or an opinion of counsel acceptable to the Agent, 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 Bank the original or certified
copy of a receipt evidencing payment of Taxes or certificate(s) or opinion of
counsel of exemption, the Borrower agrees to compensate such Bank for the tax
consequences of the Borrower's failure to provide evidence of tax payments or
tax exemption. In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes or any other sales, excise, or property taxes,
charges or similar levies which arise from any payment made hereunder or from
the execution or delivery of, or otherwise with respect to any Loan Document
(hereinafter referred to as "Other Taxes"). Without limiting the foregoing,
the Borrower agrees to indemnify and hold harmless each Bank and the Agent
for the full amount of all Taxes and Other Taxes paid by such Bank or the
Agent, as the case may be, and any liability (including penalties, interest,
additions to tax and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or other Taxes were correctly or legally asserted.
This indemnification shall be made within 30 days from the date such Bank or
the Agent, as the case may be, makes written demand therefor.
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In the event any Bank receives a refund of any Taxes paid by the
Borrower pursuant to this Section 2.12(c), such Bank will pay to the Borrower
the amount of such refund promptly upon receipt thereof; PROVIDED, HOWEVER,
if at any time thereafter such Bank is required to return such refund, the
Borrower shall promptly repay to such Bank the amount of such refund.
Each Bank which is a foreign Person (i.e., a Person other than a
United States Person, as defined in the Code) hereby agrees that it shall
deliver to the Borrower originals of Internal Revenue Service Forms 4224 and
W-9 or 1001 and W-8, as applicable, in each case indicating that such Bank is
on the date of delivery thereof entitled to receive payments for its account
from the Borrower under this Agreement with respect to Loans free from
withholding of United States Federal income tax.
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) 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 all
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). 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).
SECTION 2.14. OUTSTANDING AMOUNTS UNDER MONEY MARKET LOAN NOTES.
The Borrower acknowledges and agrees that the following principal balances
are outstanding, without defense, counterclaim or offset, under the
respective Money Market Loan Notes of the Banks listed below as of the date
of this Agreement:
Principal Amount Bank holding Money Market Loan Note
---------------- -----------------------------------
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$35,000,000.00 Wachovia
$10,000,000.00 The Chase Manhattan Bank, N.A.
$5,000,000.00 NBD Bank
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 (in sufficient number of counterparts (except as
to the Notes) 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 (i) Syndicated Loan Note and
(ii) Money Market 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
counsel relied on therein) of Hawley Troxell Ennis & Hawley,
counsel for the Borrower, Norco Windows, Inc., Trus Joist
MacMillan a Limited Partnership, Trus Joist MacMillan, Inc.,
Systems Erection, Inc., Trus Joist Corporation, and Outlook
Window Partnership, L.P. dated the date of the first
Borrowing, 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;
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(d) an opinion letter of Jones, Day, Reavis & Pogue,
special counsel for the Banks and the Agent, dated the date
of the first Borrowing, substantially in the form of
EXHIBIT C and covering such additional matters relating to
the transactions contemplated hereby as the Agent or any
Bank may reasonably request;
(e) a certificate (the "Closing Certificate"), dated
the date of the first Borrowing, substantially in the form
of EXHIBIT G, signed by the principal financial officers 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 in Article IV are true on and as of the date of
the first Borrowing hereunder;
(f) duly executed Guaranties duly executed by the
Guarantors with respect to the Loans and Money Market
Credits;
(g) a duly executed Contribution Agreement duly
executed by the Guarantors with respect to the Loans and
Money Market Credits;
(h) all documents which the Agent or any Bank may
reasonably request relating to the existence of the Borrower
and the Guarantors, the corporate or partnership authority,
as applicable, for and the validity of this Agreement, the
Notes, the Guaranties, the other Loan Documents and the
Contribution Agreements, and any other matters relevant
hereto, or thereto, all in form and substance satisfactory
to the Agent, including, without limitation, a certificate
of incumbency of the Borrower and each of the Guarantors,
signed by the Secretary or an Assistant Secretary of the
Borrower and each of the Guarantors or their general
partners, as applicable, certifying as to the names, true
signatures and incumbency of the officer or officers,
respectively, of the Borrower and the Guarantors or their
general partners, as applicable, authorized to execute and
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deliver the Loan Documents, and certified copies of the
following items, for the Borrower and each of the
Guarantors, respectively: (i) Certificate or Articles of
Incorporation or partnership certificate, (ii) Bylaws (if
corporation), (iii) a certificate of the Secretary of State
(or other appropriate issuer) of the state (or province) of
incorporation of each as to the good standing of each in
that state (or province) (if a corporation), and (iv) the
action taken by the Board of Directors authorizing the
execution, delivery and performance of this Agreement, the
Notes, the Guaranties and the other Loan Documents and the
Contribution Agreement to which the Borrower or any of the
Guarantors is a party;
(i) a Notice of Borrowing; and
(j) any fees which are due and payable on the Closing
Date under this Agreement or the Agent's Letter Agreement.
SECTION 3.02. CONDITIONS TO ALL BORROWINGS. The obligation of
each Bank to make a Syndicated Loan on the occasion of each Syndicated
Borrowing is subject to the satisfaction of the following conditions:
(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
(d) the fact that, immediately after such Borrowing,
the aggregate outstanding principal amount of the Syndicated
Loans of each Bank will not exceed the amount of its
Commitment.
Each Borrowing (both Syndicated and Money Market) shall be deemed to be a
representation and warranty by the Borrower on the date
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of such Borrowing as to the accuracy of the facts specified in paragraphs
(b), (c) and (d) of this Section; PROVIDED, that such Borrowing shall not be
deemed to be such a representation and warranty to the effect set forth in
Section 4.04(b) as to any event, act or condition having a Material Adverse
Effect which has theretofore been disclosed in writing by the Borrower to the
Banks if the aggregate principal amount (or discounted net proceeds) of the
Syndicated Loans and Money Market Credits outstanding immediately after such
Borrowing will not exceed the aggregate outstanding principal amount thereof
immediately before such Borrowing.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 4.01. EXISTENCE AND POWER. The Borrower and each of its
Subsidiaries (other than the Partnerships) 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 except where failure to do so would not create a reasonable
probability of having or causing a Material Adverse Effect, and has all
corporate powers and all governmental licenses, authorizations, consents and
approvals required in all material respects to carry on its business as now
conducted. Trus Joist MacMillan a Limited Partnership and Outlook Window
Partnership, L.P. are limited partnerships, and each of them is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of the state of its formation, is duly qualified to transact
business in every jurisdiction where, by the nature of its business, such
qualification is necessary except where failure to do so would not create a
reasonable probability of having or causing a Material Adverse Effect, and
has all partnership powers and all governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted.
SECTION 4.02. AUTHORIZATION; NO CONTRAVENTION. The execution,
delivery and performance by the Borrower of this Agreement, the Notes, the
Guaranties and the other Loan Documents and the Contribution Agreement to
which it is a party (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, (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
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instrument binding upon the Borrower or any of its Subsidiaries, 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 in accordance with its
terms, and the Notes, the Guaranties and the other Loan Documents and the
Contribution Agreement to which the Borrower is a party, when executed and
delivered in accordance with this Agreement, will constitute valid and
binding obligations of the Borrower enforceable 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,
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 Arthur Andersen
& Co., copies of which have been delivered to each of the Banks, and the
unaudited consolidated financial statements of the Borrower and its
Consolidated Subsidiaries for the interim period ended April 1, 1995, copies
of which have been delivered to each of the Banks, fairly present, in
conformity 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 in which there is a
reasonable probability of an adverse determination that would have or cause
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a Material Adverse Effect or which in any manner draws into question the
validity of 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 has fulfilled its 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 liability to the
PBGC (other than premiums due and not delinquent under Section 4007 of ERISA)
or a Plan under Title IV of ERISA. The representations and warranties set
forth in this Section 4.06(a) (other than as to the incurrence of any
liability to a Plan under Title IV of ERISA) are made to the best of the
Borrower's knowledge to the extent they apply to any Multiemployer Plan.
(b) Except as set forth in Schedule 4.06, neither the Borrower nor
any member of the Controlled Group has incurred any withdrawal liability with
respect to any Multiemployer Plan under Title IV of ERISA, and no such
liability is expected to be incurred.
SECTION 4.07. COMPLIANCE WITH LAWS; PAYMENTS 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. There have been filed on behalf of the Borrower and its
Subsidiaries all material Federal, state and local income, excise, property
and other tax returns which are required to be filed by them and all taxes
due pursuant to such returns or pursuant to any assessment received by or on
behalf of the Borrower or any Subsidiary have been paid, except for any taxes
which are being contested in good faith and by proper proceedings and as to
which adequate reserves have been maintained. 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. Income tax returns of the Borrower and its Subsidiaries for United
States Federal income
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taxes have been examined and closed through the Fiscal Year ended 1989.
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 or a partnership duly organized
and validly existing, and has all corporate or partnership powers and all
governmental licenses, authorizations, consents and approvals required to
carry on its business as now conducted. The Borrower has no Subsidiaries
except for those Subsidiaries listed on Schedule 4.08 (as such Schedule may
be supplemented from time to time by notice to the Agent from the Borrower),
which accurately sets forth each such Subsidiary's complete name and
jurisdiction of incorporation or formation. If the Borrower shall, at any
time after the Closing Date, acquire or create a Subsidiary which was not a
Subsidiary on the Closing Date, it shall cause such Subsidiary, within 10
days of the date of such acquisition or creation, to execute and deliver to
the Agent (in sufficient number of counterparts for delivery of a counterpart
to each Bank and retention of one counterpart by the Agent) (i) a Guaranty,
(ii) a supplement to the existing Contribution Agreements, pursuant to which
they became "Contributing Parties" thereto, and (iii) opinions of counsel
substantially in the form of EXHIBITS B-1 and B-2 hereto with respect thereto.
SECTION 4.09. NOT AN INVESTMENT COMPANY. 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. OWNERSHIP OF PROPERTY; LIENS. Each of the Borrower
and its Consolidated Subsidiaries has title to or valid lease interests in
its properties sufficient for the conduct of its business, and none of such
property is subject to any Lien except as permitted in Section 5.09.
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SECTION 4.11. 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 has a reasonable probability of having or
causing a Material Adverse Effect. No Default or Event of Default has
occurred and is continuing.
SECTION 4.12. 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 information is stated or
certified. The Borrower has disclosed to the Banks in writing any and all
facts which have a reasonable probability of having or causing a Material
Adverse Effect.
SECTION 4.13. ENVIRONMENTAL MATTERS. (a) Neither the Borrower nor
any Subsidiary is subject to any Environmental Liability which has a
reasonable probability of having or causing a Material Adverse Effect and,
except as listed on Schedule 4.13 (as such Schedule may be supplemented from
time to time by notice to the Agent from the Borrower), neither the Borrower
nor any Subsidiary has been designated as a potentially responsible party
under CERCLA or under any state statute similar to CERCLA. Except as listed
on Schedule 4.13 (as such Schedule may be supplemented from time to time by
notice to the Agent from the Borrower), none of the Properties has been
identified on any current or proposed (i) National Priorities List under 40
C.F.R. Section 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 any Subsidiary or by any Third Party, or are
otherwise present at, on, in or under the Properties, or, to the
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best of the knowledge of the Borrower, at or from any adjacent site or
facility; except for Hazardous Materials used, produced, manufactured,
processed, treated, recycled, generated, stored, disposed of, managed, or
otherwise handled in amounts necessitated in the ordinary course of business
by the operations of the Borrower or any Subsidiary in compliance in all
material respects with all applicable Environmental Requirements.
(c) Except as described in Schedule 4.13, the Borrower and each of
its Subsidiaries and Affiliates are in compliance 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 4.14. CAPITAL STOCK. All Capital Stock (but solely with
respect to the Borrower and Subsidiaries which are corporations), 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. 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 the Borrower's
Subsidiaries which are corporations (other than Wholly Owned Subsidiaries) is
owned by the Borrower free and clear of any Lien or adverse claim.
SECTION 4.15. 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 or Banker's Acceptance will be used to purchase or
carry any Margin Stock or to extend credit to others for the purpose of
purchasing or carrying any Margin Stock, or be used for any purpose which
violates, or which is inconsistent with, the provisions of Regulation X.
SECTION 4.16. INSOLVENCY. After giving effect to the execution
and delivery of the Loan Documents and the making of
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the Loans and the Bankers' Acceptances under this Agreement, the Borrower
will not be "insolvent," within the meaning of such term as used in O.C.G.A.
Section 18-2-22 or as defined in Section 101 of Title 11 of the United States
Code or Section 2 of the Uniform Fraudulent Transfer Act, as each is amended
from time to time, or be unable to pay its debts generally as such debts
become due, or have an unreasonably small capital to engage in any business
or transaction, whether current or contemplated.
SECTION 4.17. 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.
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
each case in comparative form the figures for the previous
fiscal year, all certified by independent public accountants
of nationally recognized standing, with such certification
to be free of exceptions and qualifications not acceptable
to the Required Banks;
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(b) as soon as available and in any event within 45
days after the end of each of the first 3 Fiscal Quarters of
the Borrower, consolidated and consolidating balance sheets
of the Borrower and its Consolidated Subsidiaries as of the
end of such quarter and the related consolidated and
consolidating statements of income and statements of cash
flows for such quarter and for the portion of the Fiscal
Year ended at the end of such quarter setting forth in each
case in comparative form the figures for the corresponding
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, treasurer 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, treasurer 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 5.03 through
5.07, inclusive, and Sections 5.12(c), and 5.23 on the date
of such financial statements and (ii) stating whether, to
the best knowledge of such person, 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 propose 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 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
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certificate of the chief financial officer, treasurer 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) within 5 Domestic Business Days after the mailing
thereof to the shareholders of the Borrower generally,
copies of all financial statements, reports and proxy
statements so mailed;
(g) within 5 Domestic Business Days after 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) within 5 Domestic Business Days after becoming
aware that 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
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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. RATIO OF ADJUSTED FUNDED DEBT TO CONSOLIDATED TOTAL
CAPITAL. Adjusted Funded Debt will not at any time exceed 55% of
Consolidated Total Capital.
SECTION 5.04. MINIMUM CONSOLIDATED TANGIBLE NET WORTH.
Consolidated Tangible Net Worth will at no time be less than the sum of: (i)
$320,000,000; PLUS (ii) 50% of Consolidated Net Income (excluding losses)
arising after December 31, 1994; provided, that the required amount of
Consolidated Tangible Net Worth shall be increased at the end of each Fiscal
Quarter, to the extent of 50% of positive Consolidated Net Income for such
Fiscal Quarter; PLUS (iii) 66 2/3rds% of the aggregate cumulative Net
Proceeds of Capital Stock and of any net additions to Consolidated Net Worth
resulting from contributions to the Partnerships by limited partners other
than the Borrower, in each case received during any period after the Closing
Date; PLUS (iv) 66 2/3rds% of any net additions to capital resulting from the
conversion of convertible subordinated debentures at any time.
SECTION 5.05. RATIO OF CONSOLIDATED CASH FLOW TO CONSOLIDATED
FUNDED DEBT. At the end of each Fiscal Quarter, commencing with the Fiscal
Quarter ending April 1, 1995, the Borrower's ratio of Consolidated Cash Flow
for the immediately preceding 4 Fiscal Quarters then ended to Consolidated
Funded Debt shall not have been less than 0.20 to 1.0.
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SECTION 5.06. INTENTIONALLY DELETED.
SECTION 5.07. LOANS OR ADVANCES. Neither the Borrower nor any of
its Subsidiaries shall make loans or advances to any Person except: (i)
loans or advances to employees not exceeding $1,000,000 in the aggregate
principal amount outstanding at any time, (ii) deposits required by
government agencies, public utilities or others in the ordinary course of
business, (iii) loans to Subsidiaries which are also Guarantors and (iv)
Secured Timber Loans not exceeding $10,000,000 in the aggregate principal
amount outstanding at any time; PROVIDED that after giving effect to the
making of any loans, advances or deposits permitted by clauses (i), (ii),
(iii) and (iv) of this Section 5.07, the Borrower will be in full compliance
with all the provisions of this Agreement and no Default shall be in
existence or caused thereby; AND FURTHER PROVIDED, that, all loans permitted
by clause (iii) of this Section 5.07 shall at all times be evidenced by a
legally enforceable promissory note made by the recipient of any such
relevant loan payable to the Borrower or Subsidiary in the amount of any such
relevant loan.
SECTION 5.08. INVESTMENTS. Neither the Borrower nor any of its
Subsidiaries shall make additional Investments in any Person except for loans
and advances permitted by Section 5.07 and except: (A) Investments in (i)
direct obligations of the United States Government maturing within one year,
(ii) certificates of deposit issued by a commercial bank whose long term
certificates of deposit have a rating of A or better by Moody's Investors
Service and/or Standard & Poor's Corporation, (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) (a) 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
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by Moody's Investors Service, Inc. or (b) tender bonds 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.; (v) obligations of
municipalities located in the United States or in U.S. territories which are
not tender bonds but meet the following criteria: (a) the obligation is rated
MIG1/VMIG1, P1, or the equivalent thereof by Moody's Investors Service, Inc.
or rated SP1, A1, or the equivalent thereof by Standard & Poor's Corporation;
and (b) the funds invested in municipal obligations which are not tender
bonds do not in sum exceed 10% of the Borrower's short-term investment
assets; (vi) repurchase agreements with member banks of the Federal Reserve
System and primary dealers limited to U.S. Government securities, provided
that the market value of the securities used as collateral equals or exceeds
the principal and interest due under the agreement; (vii) money market
preferred securities for which the principal and dividends are either (a)
fully supported by a letter of credit issued by a bank whose long term debt
is 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., or (b) stand alone issues rated A1 or the equivalent thereof by
Standard & Poor's Corporation or P1 or the equivalent thereof by Moody's
Investors Service, Inc.; and (viii) bankers' acceptances issued by a bank
whose long term certificates of deposit have a rating of A or better by
Standard & Poor's Corporation and/or Moody's Investors Service, Inc.; and (B)
(i) capital contributions to Subsidiaries which are Guarantors and (ii)
subject to Section 5.13, Related Business Acquisitions with respect to which
a controlling interest is acquired. The repurchase of the Founder's Stock by
the Borrower shall not be deemed to be an Investment by the Borrower.
SECTION 5.09. 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 $24,100,000;
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(b) Liens securing Debt evidenced by industrial
revenue bonds issued after the Closing Date in an aggregate
principal amount not exceeding $15,000,000;
(c) 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;
(d) any Lien on any asset securing Debt incurred or
assumed for the purpose of financing all or any part of the
cost of acquiring or constructing such asset, PROVIDED that
such Lien attaches to such asset concurrently with or within
18 months after the acquisition or completion of
construction thereof;
(e) 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;
(f) 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;
(g) Liens securing Debt owing by any Subsidiary to the
Borrower or any Guarantor;
(h) any Lien arising out of the successive
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, except
by the amount of the directly related closing and issuance
costs;
(i) Liens incidental to the conduct of its business or
the ownership of its assets which (i) do not secure Debt and
(ii) do not in the aggregate materially detract from the
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value of its assets or materially impair the use thereof in
the operation of its business;
(j) any Lien on Margin Stock;
(k) Liens for taxes or assessments or other
governmental charges or levies not yet due and payable or
being contested in good faith by proper proceedings and for
which adequate reserves have been established;
(l) Liens imposed by operation of law such as
mechanics', landlords', carriers' and similar liens arising
in the ordinary course of business and which are not
delinquent or remain payable without penalty or are being
contested in good faith by proper proceedings and for which
adequate reserves have been established;
(m) Liens, pledges or deposits required in connection
with workers compensation, unemployment, social security or
similar legislation; and
(n) Liens not otherwise permitted by the foregoing
paragraphs of this Section securing Debt so long as the
requirement set forth in the immediately succeeding proviso
shall be maintained at all times;
PROVIDED that Liens permitted by the foregoing paragraphs (c)
through (n), inclusive, shall at no time secure Debt in an
aggregate amount greater than 5% of Consolidated Total Assets.
SECTION 5.10. MAINTENANCE OF EXISTENCE. Except as
permitted by Section 5.11 or 5.12, the Borrower shall, and shall
cause each Subsidiary to, maintain its corporate or partnership
existence, as applicable, 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.
SECTION 5.11. DISSOLUTION. Neither the Borrower nor
any of its Subsidiaries shall suffer or permit dissolution or
liquidation either in whole or in part or purchase, repurchase,
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redeem, or retire any shares of the stock of the Borrower or that of any
Subsidiary which is a corporation, except (i) purchases, repurchases,
redemptions, or retirement of shares after the Closing Date not exceeding an
aggregate amount of $3,000,000, (ii) redemption of Class A, B and C
"retractable" shares in Trus Joist MacMillan Limited and (iii) through
corporate reorganization to the extent permitted by Section 5.10.
SECTION 5.12. CONSOLIDATIONS, MERGERS AND SALES OF ASSETS. The
Borrower will not, nor will they permit any Subsidiary to, consolidate or
merge with or into, or sell, lease or otherwise transfer all or any
substantial part of its assets (other than sales of inventory in the ordinary
course of business or the disposition of obsolete equipment) to, any other
Person, or discontinue or eliminate any material business line or segment,
PROVIDED that: (a) the Borrower or any corporate Subsidiary of 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 or
any corporate Subsidiary (except that the Borrower shall be the remaining
corporation upon a merger of a Subsidiary with 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)
corporate Subsidiaries of the Borrower may consolidate or merge with or into
or transfer assets to the Borrower which is its parent or one another; and
(c) the Borrower and its Subsidiaries may transfer or dispose of (x) assets
used primarily in (or stock of Subsidiaries engaged primarily in) the
Fenestration Products Business, and (y) other assets, so long as the
aggregate book value of all such other assets transferred or disposed of
after the Closing Date does not exceed an amount equal to 5% of Consolidated
Total Assets as of the Closing Date. As of the Closing Date, the only
Subsidiaries (or divisions thereof) engaged in the Fenestration Products
Business are those set forth on Schedule 5.12.
SECTION 5.13. USE OF PROCEEDS. The proceeds of the Loans or the
Bankers' Acceptances will be used for general corporate purposes, and will
not be used by the Borrower or any Subsidiary (i) in connection with, whether
directly or
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indirectly, any hostile tender offer for, or other hostile acquisition of,
stock of any corporation with a view towards obtaining control of such other
corporation, (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.
SECTION 5.14. COMPLIANCE WITH LAWS; PAYMENT OF TAXES. (a) The
Borrower will, and will cause each of its Subsidiaries and each member of the
Controlled Group to, comply in all material respects 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. 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 the Borrower or Subsidiary will set up reserves in accordance with
GAAP.
(b) The Borrower shall not permit the aggregate complete or partial
withdrawal liability under Title IV of ERISA with respect to Multiemployer
Plans incurred by the Borrower and members of the Controlled Group to exceed
$5,000,000 at any time. For purposes of this Section 5.14(b), the amount of
withdrawal liability of the Borrower and members of the Controlled Group at
any date shall be the aggregate present value of the amount claimed to have
been incurred less any portion thereof which the Borrower and members of the
Controlled Group have paid or as to which the Borrower reasonably believes,
after appropriate consideration of possible adjustments arising under
Sections 4219 and 4221 of ERISA, it and members of the Controlled Group will
have no liability, PROVIDED that the Borrower shall obtain prompt written
advice from independent actuarial consultants supporting such determination.
The Borrower agrees (i) once in each year, beginning with the first year end
after the institution of a Multiemployer Plan, to request and obtain a
current statement of
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the withdrawal liability of the Borrower and members of the Controlled Group
from each Multiemployer Plan, if any, and (ii) to transmit a copy of such
statement to the Agent and the Banks within 15 days after the Borrower
receives the same.
SECTION 5.15. INSURANCE. The Borrower will maintain, and will
cause each of its Subsidiaries to maintain (either in the Borrower or
Subsidiary's own name), with 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 established repute engaged in the same or similar business.
SECTION 5.16. CHANGE IN FISCAL YEAR. The Borrower will not change
its Fiscal Year without the consent of the Required Banks; PROVIDED, HOWEVER,
as an exception to the foregoing Section 5.16, after notice thereof to the
Banks and without any prior consent thereto, the Borrower may change its
Fiscal Year in effect as of the date of this Agreement (a 52/53 week fiscal
year) to a calendar year.
SECTION 5.17. MAINTENANCE OF PROPERTY. The Borrower shall, and
shall cause each Subsidiary to, maintain all of its tangible properties and
assets in good condition, repair and working order, ordinary wear and tear
excepted.
SECTION 5.18. ENVIRONMENTAL NOTICES. Within 30 days after the
Borrower becomes aware thereof, the Borrower shall furnish to the Agent
prompt written notice of all Environmental Liabilities, pending, threatened
or anticipated Environmental Proceedings, Environmental Notices,
Environmental Judgments and Orders, and Environmental Releases that are
required to be reported to an Environmental Authority, at, on, in, under or
in any way affecting the Properties or any adjacent property, in the amount
of $250,000 or more in any one instance or the aggregate amount of $1,000,000
or more for all such instances, and all facts, events, or conditions that
could have a reasonable probability of leading to any of the foregoing.
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SECTION 5.19. ENVIRONMENTAL MATTERS. The Borrower will not nor
will it 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 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 5.20. ENVIRONMENTAL RELEASE. The Borrower agrees that
upon the occurrence of an Environmental Release for which it or a Subsidiary
may be subject to any Environmental Liability or at, on, in, under or in any
way affecting the Properties, it will act or will cause its Subsidiary, as
applicable, to act as promptly as practicable (and to the fullest extent
within its or such Subsidiary's control) immediately to investigate the
extent of, and to take appropriate remedial, removal or response action with
respect to such Environmental Release, whether or not ordered or otherwise
directed to do so by any Environmental Authority.
SECTION 5.21. OTHER DEBT. Should the Borrower or any Consolidated
Subsidiary, while this Agreement is in effect or any Note remains unpaid,
issue any Debt after the date of this Agreement for money borrowed in an
aggregate amount exceeding $10,000,000 to any lender or group of lenders
acting in concert with one another, pursuant to a loan agreement, credit
agreement, note purchase agreement, indenture or other similar instrument,
which instrument includes covenants, warranties, representations, or defaults
or events of default (or any other type of restriction which would have the
practical effect of any of the foregoing, including, without limitation, any
"put" or mandatory prepayment of such Debt) other than those set forth herein
or in any of the other Loan Documents, the Borrower shall promptly so notify
the Agent and the Banks and, if the Agent shall so request by written notice
to the Borrower (after a determination has been made by the Majority Banks
that any of the above-referenced documents or instruments contain any
provisions, which either individually or in the aggregate, are more favorable
to other
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lender or group of lenders than any of the provisions set forth herein are to
the Banks), the Borrower, the Agent and the Banks shall promptly amend this
Agreement to incorporate some or all of such provisions, in the discretion of
the Agent and the Majority Banks, into this Agreement and, to the extent
necessary and reasonably desirable to the Agent and the Majority Banks, into
any of the other Loan Documents, all at the election of the Agent and the
Majority Banks. PROVIDED, HOWEVER, the foregoing Section 5.21 shall not apply
to a negative covenant restricting the Borrower's or any Subsidiary's ability
to pay dividends, distributions or other similar payments which may be
contained in any indenture or other similar instrument executed after the
date of this Agreement containing terms substantially the same in all
material respects as the terms of that certain indenture dated as of June 29,
1994 to which the County of Perry, Kentucky, and the Borrower are parties.
SECTION 5.22. 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 Subsidiary), except as permitted by law
and in the ordinary course of business and pursuant to reasonable terms which
are fully disclosed to the Agent and the Banks, and are no less favorable to
the Borrower or such Subsidiary than would be obtained in a comparable arm's
length transaction with a Person which is not an Affiliate.
SECTION 5.23. DEBT OF SUBSIDIARIES. The Borrower shall not permit
any of its Subsidiaries to incur any Debt except for (i) Debt evidenced by
industrial revenue bonds in an aggregate principal amount not to exceed
$39,100,000, and (ii) Debt incurred by Subsidiaries which are Guarantors not
to exceed an aggregate amount equal to $20,000,000 outstanding at any time
constituting unsecured lines of credit due within one year or less from the
date of advance, the proceeds of which are used for working capital.
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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 Banker's Acceptance 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, 5.02(ii), 5.03 to 5.15,
inclusive, Sections 5.18, 5.19, 5.20, 5.22 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) 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 by the Borrower or any Guarantor 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 outstanding in an aggregate
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amount equal to or exceeding $5,000,000 (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 outstanding in
an aggregate amount exceeding $10,000,000 of the Borrower or
any Subsidiary (including, without limitation, any 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 any Person acting on such holders' behalf to
accelerate the maturity thereof (including, without
limitation, any mandatory prepayment or "put" of such Debt
to the Borrower or any Subsidiary); or
(g) the Borrower or any 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
(h) an involuntary case or other proceeding shall be
commenced against the Borrower or any 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
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Borrower or any Subsidiary under the federal bankruptcy laws
as now or hereafter in effect; or
(i) one or more of the following events shall have
occurred and created a potential liability for the Borrower
or any member of the Controlled Group, singularly or in the
aggregate, in excess of $5,000,000: 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 pursuant to a
distress termination under Section 4041(c) of ERISA 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; 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 $5,000,000 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 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 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
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meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934) of 50%
or more of the outstanding shares of the voting stock of the
Borrower (excluding any Person(s) who beneficially own the
voting stock of the Borrower as of March 27, 1995); or (ii)
as of any date a majority of the Board of Directors of the
Borrower shall consist of individuals who were not either
(A) directors of the Borrower as of the 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 (iii) the Borrower
shall cease to serve as the General Partner of Trus Joist
MacMillan a Limited Partnership; or (iv) the Borrower shall
cease to beneficially own 51% or more of the ownership
interests of Trus Joist MacMillan, a Limited Partnership; or
(m) the occurrence of any event, act, occurrence, or
condition which the Banks determine either does or has a
reasonable probability of causing a Material Adverse Effect;
or
(n) (i) any default by any of the Guarantors under any
of the Loan Documents, (ii) any Loan Documents (including
without limitation, the Guaranty) shall cease to be
enforceable, (iii) any Guarantor or the Borrower shall
assert that any Loan Document (including, without
limitation, the Guaranty) shall cease to be enforceable, or
(iv) a "Default" or "Event of Default" shall occur under any
other Loan Documents.
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, (ii) any Bank may terminate its obligation to fund
a Money Market Credit in connection with any relevant Money Market Quote, and
(iii) the Agent shall, if requested by the Required Banks, by notice to the
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Borrower declare the Notes and the Bankers' Acceptances (together with
accrued or accreted interest thereon) to be, and the Notes and the Bankers'
Acceptances 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 (x) in the case of Loans,
interest at the Default Rate accruing on the principal amount thereof from
and after the date of such Event of Default, and (y) in the case of Bankers'
Acceptances, a 2.0% per annum fee on the Face Amount of all outstanding
Bankers' Acceptances shall be paid by the Borrower to the Agent from and
after the date of any such Event of Default until such date as such Bankers'
Acceptances are collateralized in full pursuant to the immediately succeeding
paragraph; 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)
and the Bankers' Acceptances 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 (x) in the case of Loans,
interest thereon at the Default Rate accruing on the principal amount thereof
from and after the date of such Event of Default, and (y) in the case of
Bankers' Acceptances, a 2.0% per annum fee on the Face Amount of all
outstanding Bankers' Acceptances shall be paid by the Borrower to the Agent
from and after the date of any such Event of Default until such date as such
Bankers' Acceptances are collateralized in full pursuant to the immediately
succeeding paragraph. 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.
In addition to the provisions contained in the immediately
preceding paragraph, the Borrower agrees that upon the occurrence of an Event
of Default, the Borrower will establish a deposit account (the "Collateral
Account") to be maintained by the Agent for the ratable benefit of the Banks,
and the Borrower will promptly pay to the Agent for deposit in the Collateral
Account, in immediately available funds, an amount
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equal to the aggregate of the then outstanding Face Amounts of Bankers'
Acceptances. As security for the payment of the Notes and the Borrower's
other obligations set forth in any of the other Loan Documents, the Borrower
shall grant, convey, assign and pledge and create in the Agent's favor, for
the ratable benefit of the Banks, a Lien on all monies, instruments and
securities at any time held in or acquired in connection with the Collateral
Account, together with all proceeds thereof. The Collateral Account shall be
at all times under the sole dominion and control of the Agent. The Agent
shall (i) apply any funds in the Collateral Account on account of Bankers'
Acceptances when the same become due and payable if and to the extent that
the Borrower shall fail directly to pay such Bankers' Acceptances and (ii)
after the Termination Date and the date on which all Bankers' Acceptances
shall have expired and all of the Borrower's obligations to the Banks in
respect thereof shall have been paid in full, apply any proceeds remaining in
the Collateral Account FIRST to pay the Notes and the Borrower's other
obligations set forth in any of the Loan Documents (in such order as the
Banks shall, in their sole discretion, determine) and THEN to refund any
remaining amount to the Borrower. The Agent shall invest the funds held in
the Collateral Account in one or more certificates of deposit issued by the
Agent with maturities not to exceed 30 days, unless the aggregate amount of
such funds which are not then otherwise invested is less than the smallest
certificate of deposit offered by the Agent, in which case the Agent shall
have no obligation to invest such funds. All such investments shall be made
in the Agent's name for the ratable account of the Banks. The Borrower
recognizes that any losses or taxes with respect to such investments shall be
borne solely by the Borrower, and the Borrower agrees to hold the Agent and
the Banks harmless from any such losses or taxes. The Agent may liquidate
any investment held in the Collateral Account in order to apply the proceeds
of such investment on account of the Notes and the Borrower's other
obligations set forth in any of the Loan Documents without regard to whether
such investment has matured and without liability for any penalty or other
fee incurred (with respect to which the Borrower hereby agrees to reimburse
the Agent) as a result of such application. Upon the establishment of the
Collateral Account, the Borrower shall pay to the Agent the fees customarily
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charged by it with respect to the maintenance of accounts similar to the
Collateral Account.
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 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
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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 third party beneficiary of any of
the provisions hereof. 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, telefax, 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 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
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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. With respect to the
Loans made by it, Wachovia 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 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
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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, HOWEVER 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 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 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 OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
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.
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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 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 at least 30 days notice thereof to the Banks
and the Borrower and the Agent may be removed at any time with or without
cause by all of the other Banks. Upon any such resignation or removal, all
of the other Banks shall have the right to appoint a successor
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Agent. 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 U.S. commercial 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:
(i) the Agent determines that deposits in Dollars are
not being offered in the relevant market for such Interest
Period, or
(ii) the Required Banks advise the Agent that the
LIBOR Rate, as determined by the Agent, will not adequately
and fairly reflect the cost to such Banks of funding LIBOR
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
LIBOR Loans shall be suspended. Unless the Borrower notifies the Agent at
least 2
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LIBOR Business Days before the date of any such relevant LIBOR Borrowing for
which a Notice of Borrowing has previously been given that it elects not to
borrow on such date, such Borrowing shall instead be made as a Base Rate
Borrowing if it is a Syndicated Borrowing bearing interest at the Base Rate
payable monthly in arrears.
SECTION 8.02. ILLEGALITY. If, after the date hereof, the adoption
of any applicable law, rule, regulation, statute, treaty, judgment or decree,
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,
whether created under the laws of the United States or Canada or any state or
province thereof, 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
applicable Lending Office) with any request or directive, rule, consent,
approval, authorization, guideline, order or policy (whether or not having
the force of law) of any Authority shall make it unlawful or impossible for
any Bank (or its applicable Lending Office) to make, maintain or fund its
LIBOR 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
(but no other Bank unless such other Bank shall have notified the Agent of
similar circumstances) to make LIBOR 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 (x) to make any LIBOR Loans or (y) to maintain and fund any
of its outstanding LIBOR Loans to maturity and shall so specify in such
notice, in the case of clause (x), such Bank nevertheless shall be obligated
to make Base Rate Loans, and in the case of clause (y), the Borrower shall
immediately prepay in full the then outstanding principal amount of each
LIBOR Loan of such Bank, together with accrued
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interest thereon. Concurrently with prepaying each such LIBOR 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 LIBOR 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 applicable
Lending Office) with any request, directive, rule, consent, approval,
authorization, guideline, order or policy (whether or not having the force of
law) of any Authority:
(i) shall subject any Bank (or its applicable Lending
Office) to any tax, duty or other charge with respect to its
Loans, Notes, Bankers' Acceptances, or its obligation to
make Loans or create Bankers' Acceptances, or shall change
the basis of taxation of payments to any Bank (or its
applicable Lending Office) of the principal of or interest
on its Loans, Bankers' Acceptances, or any other amounts due
under this Agreement in respect of its Loans, Bankers'
Acceptances, or its obligation to make Loans or create
Bankers' Acceptances (except for changes in the rate of tax
on the overall net income of such Bank or its Lending Office
imposed by the jurisdiction in which such Bank's principal
executive office or Lending Office is located); or
(ii) 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 with respect to any LIBOR Loan any such
requirement included in an applicable Adjusted LIBOR Rate)
against assets of, deposits with or for the account of, or
credit extended by, any Bank (or its applicable Lending
Office); or
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(iii) shall impose on any Bank (or its applicable
Lending Office) or on the London interbank or other
applicable market any other condition affecting its Loans,
Notes, Bankers' Acceptances, or its obligation to make Loans
or create Bankers' Acceptances;
and the result of any of the foregoing is to increase the cost to such Bank
(or its applicable Lending Office) of making or maintaining any Loan or
Bankers' Acceptance, or to reduce the amount of any sum received or
receivable by such Bank (or its applicable Lending Office) under this
Agreement or under its Notes or in connection with its Bankers' Acceptances
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 applicable 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.
For purposes of the foregoing, "applicable law" shall include any law
relating in any way to the proposals to encourage international
standardization of capital measurement and capital standards developed by the
Bank for International Settlements and any compliance therewith shall be
deemed to constitute a Change in Law for the purposes hereof notwithstanding
that any such applicable law shall have been
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introduced or changed or become effective in whole or in part in any
particular jurisdiction prior to the date of execution hereof.
(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 in
reasonable detail 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) Subject to the provisions of Section 9.08(e), 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.
SECTION 8.04. BASE RATE LOANS SUBSTITUTED FOR LIBOR LOANS. If (i)
the obligation of any Bank to make or maintain LIBOR 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 LIBOR 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 as LIBOR 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 LIBOR Loans of
the other Banks), and
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(b) after each of its LIBOR Loans has been repaid, all
payments of principal which would otherwise be applied to
repay such LIBOR Loans shall be applied to repay its Base
Rate Loans instead.
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:
(i) any payment or prepayment (pursuant to Section 8.02 or
otherwise) of an LIBOR Loan or Bankers' Acceptance on a date other than the
last day of an Interest Period for such LIBOR Loan or Stated Maturity Date of
a Bankers' Acceptance; or
(ii) any failure by the Borrower to prepay a LIBOR Loan on the
date for such prepayment specified in the relevant notice of prepayment
hereunder; or
(iii) any failure by the Borrower to borrow a LIBOR Loan on the
date for the LIBOR Borrowing of which such LIBOR Loan is a part specified in
the applicable Notice of Borrowing delivered pursuant to Section 2.02; 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 LIBOR Loan (or, in the case of a
failure to prepay or borrow, the Interest Period for such LIBOR Loan which
would have commenced on the date of such failure to prepay or borrow) at the
applicable rate of interest for such LIBOR Loan provided for herein over (y)
the amount of interest (as reasonably determined by such Bank) such Bank
would have paid on (i) deposits in Dollars of comparable amounts having terms
comparable to such period placed with it by leading banks in the London
interbank market; or
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(iv) any failure by the Borrower to fulfill or honor the applicable
conditions with respect to creation of Bankers' Acceptances set forth in
Section 2.02 or Article III before the funding date with respect to such
related Borrowing.
SECTION 8.06. INTENTIONALLY DELETED.
SECTION 8.07. REPLACEMENT OF BANKS. If any Bank (a "Notice Bank")
makes demand for amounts owed under Section 8.03 (other than due to any
change in the Reserve Percentage), or gives notice under Section 8.02 that it
can no longer participate in LIBOR Loans, then in each case the Borrower
shall have the right, if no Default or Event of Default exists, and subject
to the terms and conditions set forth in Section 9.08(c), to designate an
assignee (a "Replacement Bank") to purchase the Notice Bank's share of
outstanding Syndicated Loans, Money Market Credits and all other Obligations
and to assume the Notice Bank's obligations to the Borrower under this
Agreement; PROVIDED, THAT, any Replacement Bank must be reasonably acceptable
to the Agent and the Required Banks (and, in any event, may not be an
Affiliate of the Borrower). Subject to the foregoing, the Notice Bank agrees
to assign without recourse to the Replacement Bank its share of outstanding
Syndicated Loans and Money Market Credits and its Commitment, and to delegate
to the Replacement Bank its obligations to the Borrower under this Agreement
and its future obligations to the Agent under this Agreement. Upon such sale
and delegation by the Notice Bank and the purchase and assumption by the
Replacement Bank, and compliance with the provisions of Section 9.08(c), the
Notice Bank shall cease to be a "Bank" hereunder and the Replacement Bank
shall become a "Bank" under this Agreement; PROVIDED, HOWEVER, that any
Notice Bank shall continue to be entitled to the indemnification provisions
contained elsewhere herein.
ARTICLE IX
MISCELLANEOUS
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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
9.01 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 9.01; 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) subject to the terms of the Agent's Letter Agreement, all reasonable
out-of-pocket expenses of the Agent, including fees and disbursements of
special counsel for the Banks and the Agent, in connection with any waiver or
consent hereunder or thereunder or any amendment hereof or thereof or any
Default or alleged Default hereunder or thereunder and (ii) if a Default
occurs, all reasonable out-of-pocket expenses incurred by the Agent and the
Banks, including fees and disbursements of counsel, other professionals and
consultants and any allocated costs of internal counsel, other professionals
and consultants 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
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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 (except an
enforcement action on which the Borrower prevails on the merits) 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 reasonable expenses (including, without limitation, legal fees
and any allocated costs of internal counsel) 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. SHARING OF SETOFFS. Each Bank agrees that if it
shall, by exercising any right of setoff or counterclaim or otherwise,
receive payment of a proportion of the aggregate amount of principal and
interest owing with respect to the Note or Bankers' Acceptance 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 or Bankers' Acceptance
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held by such other Bank, the Bank receiving such proportionately greater
payment shall purchase such participation in the Notes or Bankers'
Acceptances 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 or Bankers' Acceptances 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 or Bankers' Acceptances,
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.
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, (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 hereunder, (iii)
change the date fixed for any payment of principal of or interest on any Loan
or any fees 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
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substantial part of the collateral (if any) held as security for the Loans
and Bankers' Acceptances, or (viii) release any Guarantee given to support
payment of the Loans and Bankers' Acceptances; PROVIDED, FURTHER, that this
Agreement and any of the other Loan Documents may be amended to give effect
(x) to any increased fees, interest rates and/or margins, and/or any
modification of the terms and conditions set forth in this Agreement or in
any of the other Loan Documents, agreed upon pursuant to Section 8.06 or (y)
to reduce or rescind any such increases, or to rescind any such modification,
previously agreed upon pursuant to Section 8.06, if such amendment is in
writing and is signed by the Borrower, the Agent, and the Majority Banks.
(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.
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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 or Bankers' Acceptance
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 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 Loans or the stated Maturity Date of
Bankers' Acceptances (or, in the case of a Bankers' Acceptance, the Money
Market Rate), (ii) the change of the amount of any principal, interest (or,
in the case of a Bankers' Acceptance, the Money Market Rate) 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 or
Bankers' Acceptance, (iv) any change in the rate at which either interest is
payable thereon (or, in the case of a Bankers' Acceptance, the Money Market
Rate) 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; PROVIDED that such Bank may agree (x)
to any increase in the
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fees, interest rates and/or margins, and/or to any modification of the terms
and conditions set forth in this Agreement, agreed upon pursuant to Section
8.06 hereof or (y) to the reduction or rescission of any such increases, or
the rescission of any such modification, previously agreed upon pursuant to
Section 8.06. Each Bank selling a participating interest in any Loan,
Bankers' Acceptance, 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 agree that each Participant shall be entitled to
the benefits of Article VIII with respect to its participation in Loans or
Bankers' Acceptances outstanding from time to time.
(c) Any Bank may at any time assign to one or more banks or
financial institutions (each an "Assignee") all, or, in the case of its
Syndicated Loans and Commitments, a proportionate part of all of its
Syndicated Loans and Commitments, 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 in the form attached hereto as EXHIBIT D, executed by such
Assignee, such transferor Bank and the Agent (and, in the case of an Assignee
that is not, prior to such assignment, a Bank, by the Borrower); 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, (ii) the amount of the Commitment of the
assigning Bank subject to such assignment (determined as of the effective
date of the assignment) shall be equal to $5,000,000 (or any larger multiple
of $5,000,000, (iii) no interest may be sold by a Bank pursuant to this
paragraph (c) to any Assignee that is not then, prior to such assignment, a
Bank or an Affiliate of such assigning Bank without the consent of the
Borrower and the Agent, which consent shall not be unreasonably withheld, and
(iv) a Bank may not have more than 2 Assignees that are not then Banks at any
one time. Upon (A) execution of the Assignment and Acceptance by such
transferor Bank, such Assignee, the Agent and (if applicable) the Borrower,
(B) delivery of an executed copy of the
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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 $2,000 to the Agent, such Assignee shall
for all purposes be a Bank party to this Agreement and shall have all the
rights and 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 or Notes 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, with the Borrower's consent (which
shall not be unreasonably withheld), 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.
(f) 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 in respect of Bankers'
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Acceptances 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 in respect of Bankers' Acceptances 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 in respect of Bankers'
Acceptances 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 its best
efforts to keep any information delivered or made available by the Borrower
to it which is clearly indicated to be confidential information, 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 and/or the Bankers' Acceptances; PROVIDED, HOWEVER
that nothing herein shall prevent any Bank from disclosing such information
(i) to any other Bank, (ii) upon the order of any 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. The
agreements and obligations of the Banks contained in this Section 9.09
constitute a continuing agreement and shall survive termination of this
Agreement and the payment in full of the Notes.
SECTION 9.10. REPRESENTATION BY BANKS. Each Bank hereby
represents that it is a commercial lender or financial
89
<PAGE>
institution which makes Loans and Bankers' Acceptances in the ordinary course
of its business and that it will make its Loans and Bankers' Acceptances
hereunder for its own account in the ordinary course of such business;
PROVIDED, HOWEVER that, subject to Section 9.08, the disposition of the Notes
and other Loan Documents and Bankers' Acceptances held by that Bank shall at
all times be within its exclusive control.
SECTION 9.11. OBLIGATIONS. (a) 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 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.
(b) Except as specifically stated herein, the obligations of the
Borrower hereunder are joint and several.
SECTION 9.12. GEORGIA LAW. This Agreement and each Note shall be
construed in accordance with and governed by the law of the State of Georgia.
SECTION 9.13. 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 reason of such party having or being deemed to have
structured or dictated such provision.
SECTION 9.14. WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION. The
Borrower and each of the Banks and the Agent (a) to the extent permitted by
applicable law, irrevocably waive any and all right to trial by jury in any
legal proceeding arising out of this Agreement, any of the other Loan
Documents,
90
<PAGE>
or any of the transactions contemplated hereby or thereby, (b) submit 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, and
(c) waive 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.
The Borrower 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 9.15. 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 9.16. SEVERABILITY. In case any one or more of the
provisions contained in this Agreement, the Notes, the Guaranties 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.
91
<PAGE>
SECTION 9.17. INTEREST. In no event shall the amount of interest
due or payable hereunder or under the Notes or the Guaranties exceed the
maximum rate of interest allowed by applicable law, and in the event any such
payment is inadvertently made to any Bank by the Borrower or inadvertently
received by any Bank, then such excess sum shall be credited as a payment of
principal, unless the Borrower shall notify such Bank in writing that it
elects to have such excess sum 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.
92
<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.
TJ INTERNATIONAL, INC. (SEAL)
By: /s/ Thomas H. Denig
----------------------------------------------
Title:
200 East Mallard
Boise, Idaho 83706
Attention: Richard B. Drury,
Corporate Secretary and Treasurer
Telecopier number: 208-364-3370
Confirmation number: 208-364-3322
93
<PAGE>
COMMITMENTS
$25,000,000.00 WACHOVIA BANK OF GEORGIA, N.A.,
as Agent and as a Bank (SEAL)
By: /s/ William F. Hamlet
----------------------------------------------
Title:
LENDING OFFICE
BORROWING NOTICES:
Wachovia Bank of Georgia, N.A.
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Attention: Syndicate Services Group
Telecopier number: 404-332-5019
Confirmation number: 404-332-6971
ALL OTHER NOTICES:
Wachovia Bank of Georgia, N.A.
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Attention: John A. Whitner
Telecopier number: 404-332-6898
Confirmation number: 404-332-6738
94
<PAGE>
$20,000,000.00 CIBC INC. (SEAL)
By:/s/ David C. Quon
----------------------------------------------
Title:
LENDING OFFICE
CIBC Inc.
300 South Grand Avenue
Suite 2700
Los Angeles, California 90071
Attention: David Quon
Telecopier Number: (213) 346-0157
Confirmation Number: (213) 617-6409
95
<PAGE>
$20,000,000.00 THE CHASE MANHATTAN BANK, N.A. (SEAL)
By:/s/ Hans H. Heinsen
----------------------------------------------
Title:
LENDING OFFICE
The Chase Manhattan Bank, N.A.
1 Chase Manhattan Plaza
New York, New York 10081
Attention: Hans Heinsen
Telecopier Number: (212) 552-7773
Confirmation Number: (212) 552-2396
96
<PAGE>
$15,000,000.00 NBD BANK (SEAL)
By:/s/ James R. Frye
----------------------------------------------
Title:
LENDING OFFICE
NBD Bank
611 Woodward Avenue
Detroit, Michigan 48226
Attention: Timothy P. O'Neil
Telecopier Number: 313-225-1586
Confirmation Number: 313-225-1465
97
<PAGE>
$10,000,000.00 BANK OF TOKYO, LTD. (SEAL)
By:/s/ Stanley A. Lance
----------------------------------------------
Title:
LENDING OFFICE
Bank of Tokyo, Ltd.
Corporate Banking Department
1201 3rd Avenue, Suite 1100
Seattle, Washington 98101
Attention: Stanley A. Lance
Telecopier Number: 206-382-6067
Confirmation Number: 206-382-6015
98
<PAGE>
$10,000,000.00 WEST ONE BANK, IDAHO (SEAL)
By:/s/ Robert P. Avarich, JR.
----------------------------------------------
Title:
LENDING OFFICE
West One Bank, Idaho
P.O. Box 8247
Corporate Banking - 1-0094
Boise, Idaho 83733
Attention: Robert P. Aravich, Jr.
Telecopier Number: 208-383-7563
Confirmation Number: 208-383-7565
TOTAL COMMITMENTS:
$100,000,000.00
99
<PAGE>
ACKNOWLEDGEMENT OF FORMER BORROWER
The undersigned, a party to the Original Credit Agreement as a
co-borrower thereunder, hereby acknowledges and agrees that (i) it is not a
Borrower to the foregoing Amended and Restated Credit Agreement, (ii) the
Banks are hereby released from any commitment to make loans to the
undersigned under the Original Credit Agreement, and (iii) the undersigned,
by its execution of an Amended and Restated Guaranty of even date herewith,
has become a guarantor of the Loans and Bankers Acceptances under the
foregoing Amended and Restated Credit Agreement.
TRUS-JOIST (WESTERN) LTD. (SEAL)
By: /s/ Richard B. Drury
----------------------------------------------
Title:
200 East Mallard
Boise, Idaho 83706
Attention: Treasurer
Telecopier number: 208-364-3370
Confirmation number: 208-364-3322
100
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from this data
schedule contains financial information extracted from the Balance Sheet and
Income statement of TJ International, Inc. as of July 1, 1995. The information
presented is qualified in its entirety by reference to such financial
statements.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-30-1995
<PERIOD-START> JAN-01-1995
<PERIOD-END> JUL-01-1995
<CASH> 23,240
<SECURITIES> 18,511
<RECEIVABLES> 48,607
<ALLOWANCES> 954
<INVENTORY> 57,168
<CURRENT-ASSETS> 156,719
<PP&E> 564,405
<DEPRECIATION> 151,401
<TOTAL-ASSETS> 636,731
<CURRENT-LIABILITIES> 62,970
<BONDS> 117,456
<COMMON> 17,082
0
14,076
<OTHER-SE> 212,245
<TOTAL-LIABILITY-AND-EQUITY> 636,731
<SALES> 277,697
<TOTAL-REVENUES> 277,697
<CGS> 218,228
<TOTAL-COSTS> 218,228
<OTHER-EXPENSES> 48,710
<LOSS-PROVISION> 236
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> 4,915
<INCOME-TAX> 1,815
<INCOME-CONTINUING> 3,100
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 3,100
<EPS-PRIMARY> .15
<EPS-DILUTED> .15
</TABLE>
