<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 September 27, 1997 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.
November 5, 1997, 17,017,535 shares of $1 par value common stock,
excluding 761,152 shares held as treasury stock.
EXHIBIT INDEX ON PAGE 15
<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 ending
January 3, 1998.
<PAGE>
TJ INTERNATIONAL, INC.
CONDENSED CONSOLIDATED STATEMENTS OF INCOME
(Unaudited)
<TABLE>
<CAPTION>
(amounts in thousands
except per share figures)
For the fiscal For the three fiscal
quarter ended quarters ended
------------------------------------------------------------------
September 27, September 28, September 27, September 28,
1997 1996 1997 1996
-------------- --------------- --------------- ---------------
<S> <C> <C> <C> <C>
Sales $185,578 $179,571 $532,569 $445,778
-------------- --------------- --------------- ---------------
Costs and expenses
Cost of sales 133,530 132,638 386,051 338,305
Selling expenses 17,426 15,374 53,725 45,655
Administrative expenses 8,729 7,557 26,053 19,959
-------------- --------------- --------------- ---------------
159,685 155,569 485,829 403,919
-------------- --------------- --------------- ---------------
Income from operations 25,891 24,002 66,740 41,859
Investment income, net 1,438 589 2,726 806
Interest expense (1,596) (1,573) (4,709) (4,688)
Minority interest in Partnership (12,065) (10,763) (30,340) (18,486)
-------------- --------------- --------------- ---------------
Income before income taxes 13,668 12,255 34,417 19,493
Income taxes 5,126 4,620 12,907 7,407
-------------- --------------- --------------- ---------------
Net income 8,542 7,635 21,510 12,086
-------------- --------------- --------------- ---------------
-------------- --------------- --------------- ---------------
Net income per common share
Primary $0.47 $0.42 $1.18 $0.65
-------------- --------------- --------------- ---------------
-------------- --------------- --------------- ---------------
Fully Diluted $0.45 $0.40 $1.12 $0.62
-------------- --------------- --------------- ---------------
-------------- --------------- --------------- ---------------
Dividends declared per common share $0.0550 $0.0550 $0.1650 $0.1650
-------------- --------------- --------------- ---------------
-------------- --------------- --------------- ---------------
Weighted average number of common shares
outstanding during the periods
Primary 17,555 17,593
--------------- ---------------
--------------- ---------------
Fully Diluted 18,717 18,776
--------------- ---------------
--------------- ---------------
</TABLE>
<PAGE>
TJ INTERNATIONAL, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(UNAUDITED)
<TABLE>
<CAPTION>
(AMOUNTS IN THOUSANDS)
SEPTEMBER 27, DECEMBER 28, SEPTEMBER 28,
1997 1996 1995
<S> <C> <C> <C>
ASSETS
Current assets
Cash and cash equivalents $96,771 $36,801 $53,091
Receivables, less allowances of
$400, $451 and $390 78,358 73,893 63,948
Inventories 54,739 51,549 40,450
Other 11,445 9,741 16,163
-------------- --------------- ---------------
241,313 171,984 173,652
Property
Property and equipment 591,523 566,603 561,474
Less - Accumulated depreciation (212,837) (184,504) (175,299)
-------------- --------------- ---------------
378,686 382,899 386,175
Goodwill 19,760 20,540 20,800
Other assets 25,005 25,192 20,482
-------------- --------------- ---------------
$664,764 $599,815 $601,109
-------------- --------------- ---------------
-------------- --------------- ---------------
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities
Accounts payable $43,330 $23,113 $34,729
Accrued liabilities 49,884 37,286 31,050
-------------- --------------- ---------------
93,214 60,399 65,779
Long-term debt 99,790 88,140 88,140
Other long-term liabilities 6,050 6,050 10,517
Reserve for discontinued operations 18,139 21,970 22,526
Minority interest in Partnership 213,688 195,186 192,318
Stockholders' equity
ESOP Convertible Preferred Stock, $1.00 par
value, authorized 10,000,000 shares,
issued 1,151,312, 1,162,914, and 1,167,249 13,584 13,721 13,772
Guaranteed ESOP Benefit (9,204) (9,204) (10,382)
Common stock, $1.00 par value, authorized
200,000,000 shares issued 17,765,026,
17,500,896, and 17,374,671 17,765 17,501 17,375
Paid-in capital 150,832 145,583 143,522
Retained earnings 82,196 63,249 80,353
Other (1,687) --- ---
Cumulative translation adjustment (3,344) (2,780) (2,811)
Treasury stock, 761,152 shares, at cost (16,259) --- ---
-------------- --------------- ---------------
233,883 226,070 221,829
-------------- --------------- ---------------
$664,764 $599,815 $601,109
-------------- --------------- ---------------
-------------- --------------- ---------------
</TABLE>
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THESE FINANCIAL STATEMENTS.
<PAGE>
TJ INTERNATIONAL, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE THREE FISCAL QUARTERS ENDED SEPTEMBER 27, 1997, AND SEPTEMBER 28, 1996,
(Unaudited)
(amounts in thousands)
<TABLE>
<CAPTION>
SEPTEMBER 27, SEPTEMBER 28,
1997 1996
------------- -------------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net income $ 21,510 $ 12,086
Adjustments to reconcile net income (loss) to net
cash provided by operating activities:
Depreciation and amortization 31,249 29,779
Minority interest in partnerships 30,340 18,486
Other, net 2,802 1,355
Change in working capital items:
Receivables (4,465) (35,194)
Inventories (3,190) (1,890)
Other current assets (1,704) 1,480
Accounts payable and accrued liabilities 32,453 15,153
Other, net (5,134) (9,845)
------------- -------------
Net cash provided by operating activities $ 103,862 $ 31,410
------------- -------------
------------- -------------
CASH FLOWS FROM INVESTING ACTIVITIES
Capital expenditures $ (28,078) $ (13,574)
Proceeds from the sale of discontinued operations ---- 24,035
Decrease in unexpended bond funds ---- 117
Proceeds from notes receivable 588 1,022
Other, net 824 1,230
------------- -------------
Net cash (used in) provided by investing activities $ (26,666) $ 12,830
------------- -------------
------------- -------------
CASH FLOWS FROM FINANCING ACTIVITIES
Cash dividends paid on common stock $ (2,888) $ (2,835)
Cash dividends paid on preferred stock (1,245) ----
Minority partners tax distributions (8,905) (3,762)
Net Repayments under lines-of-credit ---- (2,994)
Proceeds from the issuance of long-term debt 11,650 5,740
Principal payments of long-term debt ---- (7,380)
Purchase of treasury stock (16,259) ----
Other, net 420 367
------------- -------------
Net cash used in financing activities $ (17,226) $ (10,864)
------------- -------------
------------- -------------
NET CHANGE IN CASH AND CASH EQUIVALENTS
Net increase in cash and cash
equivalents $ 59,970 $ 33,376
Cash and cash equivalents at beginning of year 36,801 19,715
------------- -------------
Cash and cash equivalents at end of period $ 96,771 $ 53,091
------------- -------------
------------- -------------
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION
Cash paid during the period for:
Interest, net of amounts capitalized $ 4,268 $ 4,175
Income taxes (refunds), net $ (2,752) $ 7,701
</TABLE>
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THESE FINANCIAL STATEMENTS.
<PAGE>
TJ INTERNATIONAL, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
INVENTORIES
Inventories consisted of the following:
(amounts in thousands)
Sept. 27, Dec. 28, Sept. 28,
1997 1996 1996
--------- -------- ---------
Finished goods $38,590 $38,278 $29,001
Raw materials and
work-in-progress 16,149 13,271 14,144
-------- -------- ---------
54,739 51,549 43,145
Reduction to LIFO cost - - (2,695)
-------- -------- ---------
$54,739 $51,549 $40,450
-------- -------- ---------
-------- -------- ---------
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.
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 date
of issuance.
<PAGE>
Primary net income and fully diluted net income was calculated as follows:
<TABLE>
<CAPTION>
For the fiscal For the three fiscal
quarter ended quarters ended
----------------------- -----------------------
Sept. 27, Sept. 28, Sept. 27, Sept. 28,
1997 1996 1997 1996
----------------------- -----------------------
<S> <C> <C> <C> <C>
PRIMARY NET INCOME
Net Income as reported $8,542 $7,635 $21,510 $12,086
Preferred stock dividends, net
of related tax benefits (243) (233) (737) (710)
--------- ---------- ---------- ----------
Primary net income $8,299 $7,402 $20,773 $11,376
--------- ---------- ---------- ----------
--------- ---------- ---------- ----------
FULLY DILUTED NET INCOME
Net Income as reported $8,542 $7,635 $21,510 $12,086
Additional ESOP contribution
payable upon assumed
conversion of ESOP
preferred stock, net of
related tax benefits (174) (172) (522) (534)
--------- ---------- ---------- ----------
Fully diluted net income $8,368 $7,463 $20,988 $11,552
--------- ---------- ---------- ----------
--------- ---------- ---------- ----------
</TABLE>
In February 1997, the Financial Accounting Standards Board issued Statement 128,
Earnings per share, which will be implemented in the fourth quarter of 1997.
Primary earnings per share will be replaced with basic earnings per share and
fully diluted earnings per share will be renamed diluted earnings per share,
neither of which will be significantly different than previously reported
primary and fully diluted earnings per share. All previously reported amounts
will be restated.
<PAGE>
TJ INTERNATIONAL, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS
FOR THE FISCAL QUARTER ENDED SEPTEMBER 27, 1997
OPERATING RESULTS
The following comments discuss material variations in the results of operations
for the comparative periods presented in the condensed consolidated statements
of income.
SALES
The Company's sales by quarter during the current year and for the preceding
four years are as follows:
SALES BY QUARTER
----------------
(AMOUNTS IN THOUSANDS)
QUARTER 1997 1996 1995 1994 1993
- ------- -------- -------- -------- -------- --------
First $161,263 $111,157 $109,941 $118,163 $ 93,799
Second 185,730 155,050 123,882 128,773 106,529
Third 185,576 179,571 137,759 136,266 118,698
Fourth 131,388 113,263 112,858 117,576
-------- -------- -------- -------- --------
$532,569 $577,166 $484,845 $496,060 $436,602
-------- -------- -------- -------- --------
-------- -------- -------- -------- --------
THIRD QUARTER OF 1997 COMPARED WITH THE THIRD QUARTER OF 1996
Third quarter sales increased $6 million or 3% from the prior year third
quarter. While the Company's sales increased 3% from the third quarter of
1996, year-to-date sales are up approximately 19% which is comparable to 1996
year-to-date sales over the same period of 1995. This quarter-to-quarter
relationship is a result of the Company's strategic inventory program. This
program has resulted in a more even distribution of total sales across the
year with a higher growth rate in the first quarter and a lower growth rate
in the third quarter than has been our typical pattern in the past. The
sales increase is primarily the result of increased volume with growing
acceptance of the Company's engineered lumber products as a substitute for
commodity solid-sawn lumber. Sales per North American housing start through
September increased 16 percent to $344 per start compared to $297 for the
same nine-month period in 1996. 1997 will be the 15th consecutive year of
market penetration growth in the key residential construction market.
Unit volume sales growth accounted for virtually all of the sales increase for
the third quarter of 1997 with prices for I-joist, Microllam-Registered
Trademark- LVL, and Parallam-Registered Trademark- flat compared to third
quarter 1996. Volume gains were strongest in the Company's TJI-Registered
Trademark- Joist products, with TimberStrand-Registered Trademark- LSL and
Parallam-Registered Trademark- PSL products delivering the largest percentage
growth for the quarter.
Volumes were up largely due to builders continuing to switch to engineered
lumber from solid-sawn lumber. In some markets, such as Denver, engineered
products have become the rule rather than the exception.
<PAGE>
Year to date the Company's commercial business unit has increased sales 38%,
with the international business unit increasing sales 81%, and the industrial
business unit increasing sales 11% over the same nine month period in 1996.
The Company's sales increased despite flat North American housing starts
compared to the prior year.
Gross margins for the third quarter were 28% compared with 26.1% in 1996. The
margin gains were the result of improved productivity at our manufacturing
facilities and lower raw material costs, primarily OSB, used as a raw material
in the manufacture of I-joists. Margins were also better as a result of better
performance at the Company's new technology plants. The Company's
TimberStrand-Registered Trademark- LSL plant in East Kentucky was profitable for
the quarter on an all in basis including all components of SG&A.
Selling expenses increased $2.1 million in the third quarter of 1997, compared
to the prior year. This increase is largely due to changes in product
literature for residential product mix initiatives, advertising, and increased
growth of the Commercial business. Additionally the Company continues to invest
in infrastructure to facilitate growth in international markets. General and
administrative expenses increased $1.2 million from the prior year. This
increase is primarily driven by additional research and development expenses to
further improve the Company's TimberStrand-Registered Trademark- technology.
The increase is also driven by the Company's investment in business support
software which will provide the infrastructure for future growth.
Minority interest expense increased $1.3 million from 1996 due to the increase
in earnings at the Trus Joist MacMillan (TJM) Partnership.
FIRST THREE QUARTERS OF 1997 COMPARED WITH THE FIRST THREE QUARTERS OF 1996
Sales for the first nine months of 1997 increased by $86.8 million or 19% from
the comparable period last year. Unit volume sales growth accounted for the
majority of the increase due to the increased acceptance of the Company's
engineered lumber products.
Gross margins increased from 24.1% in 1996 to 27.4% in 1997. The increase is
the result of improved performance at the Company's two new plants.
Selling expenses increased $8.1 million or 18%; however, as a percent of sales,
they were down slightly between the two periods. This reflects the increased
absorption of fixed selling costs. General and administrative expenses
increased $6.1 million from the prior year. This is primarily due to the
Company's increased investment in research and information technology to support
future growth.
LIQUIDITY AND CAPITAL RESOURCES
SEPTEMBER 27, 1997 COMPARED TO DECEMBER 28, 1996
Working capital increased $36.5 million during the first nine months of 1997 to
$148.1 million. The increase reflects the Company's seasonal investment in
inventory and receivables. Cash flows from operations were $103.9 million.
<PAGE>
SEPTEMBER 27, 1997 COMPARED TO SEPTEMBER 28, 1996
Working capital increased $40.2 million from the prior year to $148.1 million at
September 27, 1997. The increase in liquidity is due to strong earnings
combined with modest capital spending.
The Company announced it will begin construction of a new TJI-Registered
Trademark- joist and Microllam-Registered Trademark-, (LVL) manufacturing
facility in Evergreen, Alabama. The first phase of this new plant will cost
approximately $45 million. Construction will begin early in the fourth quarter
of 1997. The plant is expected to begin manufacturing LVL and TJI-Registered
Trademark- joists late in 1998.
The Company is constructing a TimberStrand-Registered Trademark- LSL - flange I
line at its Eastern Kentucky location. The new production facility will allow
the Company to produce traditional I-joist products, using
TimberStrand-Registered Trademark- as the top and bottom flange material. The
additional I-line will require a capital investment of approximately $20
million. Production is expected to begin ramping up in late 1997.
In December of 1996, the Company's Board of Directors authorized the purchase
of up to $15 million of the Company's common stock at market prices. The
Company purchased $8.3 million of stock during the first quarter and $6.7
million during the second quarter completing the stock repurchase program.
In addition, the Company purchased $1,258,750 of treasury stock during the
third quarter.
In the second quarter of 1996, the Company issued $5.7 million of industrial
revenue bonds to finance construction of the Hazard, Kentucky
TimberStrand-Registered Trademark- LSL plant. The bonds are due in a single
maturity in 2026, with interest payable semi-annually at 6.8 percent. In the
second quarter of 1997, the Company issued $11.65 million of industrial revenue
bonds associated with the construction of this plant. The bonds are due in a
single maturity in 2027, with interest payable semi-annually at 6.55 percent.
Early in the fourth quarter of 1997, the Company issued $42.6 million of
taxable notes to preserve the Company's ability in the future to issue
additional industrial revenue bonds to help finance the East Kentucky
TimberStrand-Registered Trademark- LSL plant. The notes are due in a single
maturity on November 15, 2001, subject to prepayment at the option of the
Company. The interest rate at the beginning of each interest period as
selected by the Company, is either LIBOR based or prime at the Company's
option, and is payable at the end of each interest period. The notes contain
various customary financial covenants, consistent with those in the Company's
other debt agreements. The notes are unsecured.
The Company is evaluating potential sites for an additional combination
Microllam-Registered Trademark- LVL and Parallam-Registered Trademark- PSL plant
or a third TimberStrand-Registered Trademark- LSL plant but has not determined
whether or when to proceed with construction. The Company believes that current
cash balances, cash generated from operations, and borrowing under a $150
million Revolving Credit Facility will be sufficient to meet the on-going
operating and capital expansion needs of the Company. The Company also believes
that additional or expanded lines of credit or appropriate long-term capital can
be obtained to fund other major capital requirements as they arise, or to fund
an acquisition.
<PAGE>
The Company sold its window operations in 1996, however, it retained certain
liabilities related to these operations. Management believes that existing
reserves are adequate to meet all subsequent liabilities that may arise related
to the discontinued operations.
Substantially all of the Company's operating assets are held, and revenue
generated, by its TJM partnership. The partnership regularly distributes cash
to the partners to fund the tax liabilities generated by the partnership at the
Company level. All other distributions of cash by the partnership are
dependent on the affirmative votes of the representatives of the minority
partner. Accordingly, there can be no assurance that such distributions will be
approved and thereby be available for the payment of dividends or to fund other
operations of the Company.
INDUSTRY, COMPETITION, AND CYCLICALITY
The Company's engineered lumber products continue to gain market acceptance as
high-quality alternatives to traditional solid-sawn lumber products. 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, or the second generation technologies of
TimberStrand-Registered Trademark- LSL or Parallam-Registered Trademark- 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 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. Traditional wide-dimension lumber, however, remains the
predominant structural framing material used in residential construction and is
the primary competitor of the Company's products. Commodity lumber prices
historically have been subject to high volatility, and during periods of
significant lumber price movements the Company's prices have trended in the same
direction.
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. Consistent with the seasonal pattern of the construction industry as a
whole, 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.
<PAGE>
Microllam-Registered Trademark-, Parallam-Registered Trademark-, TJI-Registered
Trademark-, and TimberStrand-Registered Trademark- are registered trademarks of
Trus Joist MacMillan a Limited Partnership, Boise, Idaho
<PAGE>
TJ INTERNATIONAL, INC.
PART II
OTHER INFORMATION
Item 5. OTHER INFORMATION
(a) Filed as an exhibit to this report is a copy of the Loan
Agreement, Note, and Guarantee Agreement dated September 30, 1997
pertaining to the $42,600,000 taxable notes described in
Management's Discussion and Analysis.
Item 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Filed as an exhibit to this report is the following:
(27) Financial Data Schedule
(b) No reports or form 8K were filed during the quarter ended
September 27, 1997.
<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: November 11, 1997
<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 SEPTEMBER 27, 1997 COMMISSION FILE NUMBER 0-7469
TJ INTERNATIONAL, INC.
EXHIBIT INDEX
EXHIBITS PAGE
- -------- ----
(10) TJ International, Inc. Revenue Bond Issue Document 1
Loan Agreement, Note, and Guarantee Agreement dated as of September
30,1997 pertaining to $42,600,000 taxable notes.
(27) Financial Data Schedule Document 2
<PAGE>
TJ INTERNATIONAL, INC.
SOLID WASTE DISPOSAL NOTE
(County of Perry, Kentucky)
1997 Taxable Series
TJ INTERNATIONAL, INC. (the "Company"), a Delaware corporation, for
value received, promises to pay to the order of the County of Perry, Kentucky
(the "Issuer"), or its lawful assigns, the principal sum of $42,600,000 on
November 15, 2001, with interest on the outstanding balance, at the interest
rates, determined and payable at the times and in the manner and otherwise in
accordance with the terms set forth in the Issuer's Solid Waste Disposal Revenue
Bonds (TJ International Project), 1997 Taxable Series (the "Bonds") issued
concurrently with this Note, until payment of such principal has been made or
provided for.
This Note is subject to prepayment at the option of the Company in the
manner set forth in the Bonds for redemption of Bonds.
If, for any reason, the amounts specified above are not sufficient to
make corresponding payments of principal or redemption price of, and interest
on, all of the Issuer's Bonds, when such payments are due, the Company shall pay
as additional amounts due hereunder, the amounts required from time to time to
make up any such deficiency. Whenever payment or provision therefor has been
made in respect of the principal or redemption price of, and interest on all
such Bonds, this Note shall be deemed paid in full and shall be canceled and
returned to the Company.
All payments of principal and interest shall be made to the County or
its lawful assigns, in such coin or currency of the United States of America as
at the time of payment shall be legal tender for the payment of public and
private debts.
This Note is issued pursuant to a certain Loan Agreement (the
"Agreement") dated as of September 30, 1997 between the Issuer and the Company
relating to the financing of a solid waste disposal facility (the "Project").
The obligations of the Company to make the payments required hereunder shall be
absolute and unconditional without defense or set-off by reason of any default
by the suppliers under construction contracts and purchase orders covering the
acquisition, construction and installation of the Project or by the Issuer under
the Agreement or under any other agreement between the Company and the Issuer or
for any other reason, including without limitation, failure to complete the
Project, any acts or circumstances that may constitute failure of consideration,
destruction of or damage to the Project, commercial frustration of purpose, or
failure of the Issuer to perform and observe any agreement, whether express or
implied, or any duty, liability or obligation arising out of or connected with
the Agreement, it being the intention of the Company and the Issuer that the
payments hereunder will be paid in full when due without any delay or diminution
whatsoever.
<PAGE>
In case one or more of the Events of Default specified in Section 5.1
of the Agreement shall have occurred and be continuing, then and in each and
every such case, the Issuer or its lawful assignees, by notice in writing to the
Company, may declare the unpaid balance of this Note to be due and payable
immediately, if concurrently with or prior to such notice the unpaid principal
amount of the Bonds has been declared to be due and payable, and upon any such
declaration the same shall become and shall be immediately due and payable,
anything in this Note or in the Agreement to the contrary notwithstanding.
In case the Issuer, or its lawful assignees shall have proceeded to
enforce its rights under this Note or the Agreement and such proceedings shall
have been discontinued or abandoned for any reason or shall have been determined
adversely to the Issuer or its lawful assignees, then and in every such case the
Company and the Issuer, or its lawful assignees, shall be restored to their
respective positions and rights hereunder, and all rights, remedies and powers
of the Company and the Issuer, or its lawful assignees, shall continue as though
no such proceeding had been taken.
In case the Company shall fail forthwith to pay all amounts due
hereunder and under the Agreement upon such demand, the Issuer, or its lawful
assignees, shall be entitled and empowered to institute any action or proceeding
at law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceeding to judgment or final decree, and may
enforce any such judgment or final decree against the Company and collect, in
the manner provided by law out of the property of the Company, the moneys
adjudged or decreed to be payable.
2
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Note to be duly
executed and delivered.
Dated September 30, 1997 TJ INTERNATIONAL, INC.
By: /s/ Richard B. Drury
----------------------------------
Richard Drury
Corporate Secretary and
Treasurer
3
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
LOAN AGREEMENT
between
COUNTY OF PERRY, KENTUCKY
and
TJ INTERNATIONAL, INC.
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Dated as of September 30, 1997
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TABLE OF CONTENTS
Page
I. Definitions............................................................. 1
II. Background, Representations and Findings............................... 1
2.1 Background......................................................... 1
2.2 Company Representations............................................ 2
2.3 Issuer Representations............................................. 2
III. Financing the Project; Loan and Repayment............................. 3
3.1 Issuance of Bonds; Amount and Source of Loan....................... 3
3.2 Repayment of Loan.................................................. 3
3.3 Prepayment of Loan................................................. 3
3.4 Selection of Bonds to be Redeemed by Partial
Prepayment of Loan............................................... 3
3.5 No Defense or Set-Off.............................................. 4
3.6 Assignment of Agreement and Right to Receive Payment............... 4
IV. Covenants of the Company............................................... 4
4.1 Maintenance and Operation of Project............................... 4
4.2 Corporate Existence................................................ 4
4.3 Payment of Issuer's and Holders' Expenses.......................... 5
4.4 Indemnity Against Claims........................................... 5
4.5 Limitation of Liability of the Issuer.............................. 5
4.6 Inspection......................................................... 5
4.7 Insurance.......................................................... 5
4.8 Taxes and Special Assessments...................................... 5
4.9 Financing Statements............................................... 6
4.10 Notices........................................................... 6
V. Events of Default and Remedies.......................................... 6
5.1 Events of Default.................................................. 6
5.2 Payment on Default; Suit Therefor.................................. 7
5.3 Cumulative Rights.................................................. 7
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VI. Miscellaneous.......................................................... 8
6.1 Notices............................................................ 8
6.2 Assignments........................................................ 9
6.3 Applicable Law..................................................... 9
6.4 Illegal, etc. Provisions Disregarded............................... 9
6.5 Amendments......................................................... 9
6.6 Successors and Assigns............................................. 9
6.7 Term of Agreement.................................................. 9
6.8 Headings for Convenience Only...................................... 9
6.9 Counterparts....................................................... 9
EXHIBIT A - Description of the Project...................................... A-1
EXHIBIT B - Form of Note.................................................... B-1
EXHIBIT C - Form of Notice of Interest Rate Selection....................... C-1
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LOAN AGREEMENT, dated as of September 30, 1997 between the COUNTY OF PERRY,
KENTUCKY (the "Issuer"), a county and political subdivision of the Commonwealth
of Kentucky (the "Commonwealth") and TJ INTERNATIONAL, INC., a Delaware
corporation (the "Company").
I. DEFINITIONS.
"Act" shall mean KRS 103.200 ET. SEQ., as amended.
"Agent Bank" shall mean Wachovia Bank, N.A., in its capacity as agent for
the Holders, and its successors and permitted assigns in such capacity.
"Assignment" shall mean the Assignment of Loan Agreement and Note, dated as
of September 30, 1997, from the Issuer to the Agent Bank, on behalf of itself
and the other Holders of the Bonds.
"Bonds" shall mean the $42,600,000 Solid Waste Disposal Revenue Bonds (TJ
International Project), 1997 Taxable Series.
"Guarantor" or "Guarantors" shall mean, individually or collectively, the
following entities: TJ International, Inc.; Trus Joist MacMillan, a Limited
Partnership; Norco Windows, Inc.; Trus Joist MacMillan Limited; Trus-Joist
(Western) Ltd.; and TJM Facilities Corporation.
"Guaranty" shall mean the Bond Guaranty Agreement, dated as of September
30, 1997, by and among the Guarantors and the Holders.
"Holders" shall mean Wachovia Bank, N.A.; CIBC, Inc.; The Chase Manhattan
Bank,; The First National Bank of Chicago/NBD; The Bank of Tokyo-Mitsubishi,
Ltd.; and U.S. Bank of Idaho or their lawful assigns.
II. BACKGROUND, REPRESENTATIONS AND FINDINGS.
2.1 BACKGROUND. The Issuer is a county and political subdivision of the
Commonwealth of Kentucky and is authorized under the Act to enter into loan
agreements with corporations and other entities with respect to one or more
"industrial buildings" as defined in the Act, upon such terms and conditions as
the Issuer deems advisable in accordance with the provisions of the Act in order
to promote the economic development of the Commonwealth, relieve conditions of
unemployment, to encourage the increase of industry in the Commonwealth and to
aid in the retention of existing industry through the control of pollution, and
the Issuer having found in its Resolution enacted on September 16, 1997, that
the issuance of the Bonds on behalf of the Company will accomplish those
purposes.
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The Company has asked the Issuer to undertake the financing of
reimbursement costs relating to a project (the "Project") consisting of solid
waste disposal components of a production facility for the manufacture of
engineered lumber for the construction of wood joists and related products, more
particularly described in EXHIBIT A attached hereto to be operated by Trus Joist
MacMillan a Limited Partnership, a Delaware limited partnership, as beneficial
owner of the Project ("Trus Joist MacMillan"). The Company is the managing
general partner of Trus Joist MacMillan. The Issuer intends to loan the
proceeds of the Bonds to the Company pursuant to the terms hereof to be repaid
in installments equal to payments of debt service on such Bonds together with
redemption premiums, if any. The Company will, in turn, lend the money to Trus
Joist MacMillan as evidenced by a promissory note.
2.2 COMPANY REPRESENTATIONS. The Company represents that:
(a) It is a corporation duly organized and existing in good standing under
Delaware law, qualified to do business in the Commonwealth, with full power and
legal right to enter into this Agreement and to perform its obligations
hereunder. The making and performance of this Agreement on the Company's part
have been duly authorized by all necessary corporate action and will not violate
or conflict with the Company's Certificate of Incorporation, bylaws or any
agreement, indenture or other instrument by which the Company or its properties
are bound.
(b) The Company intends to cause Trus Joist MacMillan to operate a portion
of the Project as a solid waste disposal facility.
(c) The Company has acquired or will cause Trus Joist MacMillan to acquire
all permits, licenses and has or will satisfy other requirements necessary for
the acquisition, construction, installation and operation of the Project.
(d) The Project is wholly located within the boundaries of the Issuer.
2.3 ISSUER REPRESENTATIONS. The Issuer represents that:
(a) The Issuer is a county and political subdivision of the Commonwealth,
and is authorized pursuant to the Act to enter into the transactions
contemplated by this Agreement and to carry out its obligations hereunder.
(b) The Issuer has the necessary power under the Act, and has duly taken
all action on its part required, to authorize, execute and deliver this
Agreement and to undertake the Project. The execution and performance of this
Agreement by the Issuer will not violate or conflict with any instrument by
which the Issuer or any of its properties is bound.
(c) The Project constitutes an "industrial building" under the Act, and
the undertaking of the financing for the Project by the Issuer will promote the
public purposes of the Act in order to promote the economic development of the
Commonwealth, relieve conditions of
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unemployment, to encourage the increase of industry in the Commonwealth and to
aid in the retention of existing industry through the control of pollution.
III. FINANCING THE PROJECT; LOAN AND REPAYMENT.
3.1 ISSUANCE OF BONDS; AMOUNT AND SOURCE OF LOAN. In order to finance the
Project, including reimbursement of costs related thereto, the Issuer will issue
and sell its Bonds in the aggregate principal amount of $42,600,000 to the
Holders. Bonds shall be in registered form and shall be issued in minimum
denominations of $100,000 and integral multiples of $5,000 thereafter.
Concurrently with the delivery of the Bonds and payment therefor by the Holders,
the Issuer will, upon the terms and conditions of this Agreement, lend to the
Company an amount equal to the principal amount of the Bonds (the "Loan") for
application against the costs of the Project. Repayment of such Loan will be
evidenced by a Note in substantially the form set forth in EXHIBIT B hereto
which shall be executed and delivered by the Company to the County and assigned
by the County to the Holders pursuant to the Assignment concurrently with the
issuance of the Bonds. The Company hereby covenants that the proceeds of the
Bonds will be applied to the payment or reimbursement of costs of the Project
and costs related to the issuance and delivery of the Bonds.
3.2 REPAYMENT OF LOAN. The Company agrees to repay the Loan made by the
Issuer in the amount and at the time which shall correspond to the payments of
principal on the Bonds. All such repayments of the Loan will be made on or
prior to the corresponding principal or interest payment date of the Bonds,
whether at maturity, upon prepayment or acceleration or otherwise. The Company
also agrees to pay interest on the Loan at the rates, and at the times, which
correspond to the rates at, and times on, which interest is payable on the
Bonds. The Company may, by delivery of a written notice to the Agent Bank and
the Holders in the form set forth in EXHIBIT C hereto within the times for
delivery of such notice as set forth in the Bonds, elect the rate(s) of interest
applicable to all or a portion of the Bonds then outstanding. The terms of the
Loan are as otherwise set forth in the Bonds and the terms of the Bonds are
hereby incorporated by reference.
3.3 PREPAYMENT OF LOAN. The Bonds may be prepaid at the election of the
Company in whole or in part in minimum principal amounts of $1,000,000 and any
amounts thereafter (or the maturity amount), plus accrued interest to the date
of prepayment, without penalty or premium, upon delivery of notice to the
Holders as set forth in the Bonds: (i) at any time during which the Bonds bear
interest at the Base Rate (as defined in the Bonds), and (ii) on the last day of
the Interest Period (as defined in the Bonds) during which the Bonds bear
interest at the Adjusted Libor Interest Rate (as defined in the Bonds).
3.4 SELECTION OF BONDS TO BE REDEEMED BY PARTIAL PREPAYMENT OF LOAN. In
the event that the Company shall elect to prepay in part, but not in whole, at
the end of an Interest Period, the principal then outstanding under this
Agreement, plus interest accrued to the date of
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redemption, the Company shall apply the amount so prepaid under the Agreement to
the redemption of the Bonds then outstanding on a pro rata basis.
3.5 NO DEFENSE OR SET-OFF. The obligations of the Company to make
payments of the Loan shall be absolute and unconditional without defense or
set-off by reason of any default by the suppliers under construction contracts
and purchase orders covering the acquisition, construction and installation of
the Project or by the Issuer under this Agreement or under any other agreement
between the Company and the Issuer or for any other reason, including without
limitation, failure to complete the Project, any acts or circumstances that may
constitute failure of consideration, destruction of or damage to the Project,
commercial frustration of purpose, or failure of the Issuer or the Holders, as
assignees, to perform and observe any agreement, whether express or implied, or
any duty, liability or obligation arising out of or connected with this
Agreement, it being the intention of the parties that the payments required
hereunder will be paid in full when due without any delay or diminution
whatsoever.
3.6 ASSIGNMENT OF AGREEMENT AND NOTE AND RIGHT TO RECEIVE PAYMENT. As a
source of payment for the Bonds, the Issuer, immediately following execution
hereof, will execute and deliver the Assignment assigning this Agreement, the
Note and all moneys payable hereunder by the Company to the Holders as security
for the payment of principal and interest on the Bonds (except rights to
indemnification and to receive payments under Sections 4.3 and 4.4 hereof). The
Company consents to such assignment and agrees therein to make payments on the
Loan directly to the Holders without defense or setoff by reason of any dispute
between the Company and the Issuer or the Holders.
IV. COVENANTS OF THE COMPANY.
4.1 MAINTENANCE AND OPERATION OF PROJECT. So long as the Bonds are
outstanding, the Company will maintain and operate the Project and pay all
expenses in connection therewith during its useful life and as required to meet
the public purposes of the Act, but this covenant shall not require the Company
to operate any portion of the Project after it is no longer economical to do so
and shall not prevent the Company from selling all or any portion of the Project
provided that the public purposes of the Act are met. No such sale shall affect
the liability of the Company for the Loan. This covenant is personal to the
Company and its successors and will not be binding upon purchasers of any
portions of the Company's properties.
4.2 CORPORATE EXISTENCE. So long as the Bonds are outstanding, the
Company will maintain its corporate existence and its qualification to do
business in the Commonwealth, except that it may dissolve or otherwise dispose
of all or substantially all of its assets and may consolidate with or merge into
another corporation or permit one or more corporations to consolidate or merge
into it, if the surviving, resulting or transferee corporation, if other than
the Company, assumes in writing all of the obligations of the Company hereunder
and is a
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corporation organized under the laws of one of the states of the United States
of America, duly qualified to do business in the Commonwealth.
4.3 PAYMENT OF ISSUER'S AND HOLDERS' EXPENSES. The Company will pay all
reasonable legal fees and other costs and expenses incurred by the Issuer and
the Holders in connection with the issuance of the Bonds and the performance by
the Issuer of any and all of its functions and duties under this Agreement.
4.4 INDEMNITY AGAINST CLAIMS. The Company agrees to indemnify and hold
the Issuer, its employees, agents and the members of the governing body of the
Issuer harmless from and against, all losses, costs, damages, expenses and
liabilities of whatsoever nature (including, but not limited to reasonable
attorney's fees, litigation and court costs, out of pocket costs and amounts
paid to discharge judgments, to investigate and defend any actions and to
enforce the rights to indemnification provided by this Section) directly or
indirectly resulting from, arising out of or related to the issuance, offering,
sale, delivery or payment of the Bonds, and the design, construction,
installation, operation, use, occupancy, maintenance or ownership of the
Project.
4.5 LIMITATION OF LIABILITY OF THE ISSUER. In the event of any default by
the Issuer hereunder, the liability of the Issuer to the Company shall be
enforceable only out of its interest under this Agreement, and there shall be no
other recourse by the Company against the Issuer, its officers, members of its
governing body, agents and employees, past, present or future, or any of the
property now or hereafter by it or them owned.
4.6 INSPECTION. So long as the Bonds are outstanding, the Company will at
all reasonable times provide the Issuer and the Holders with full and free
access to the Project and the drawings, plans, specifications and cost estimates
relating thereto for reasonable inspection, but shall not be responsible for any
negligence or willful acts of the Issuer or the Holders, while such parties are
on the premises.
4.7 INSURANCE. So long as the Bonds are outstanding, the Company will
maintain or cause to be maintained, with financially sound and reputable
insurers, insurance with respect to its properties and business against such
casualties and contingencies and in such types and amounts as is customary in
the case of corporations engaged in the same or a similar business and similarly
situated, including insurance against all liability for injury to persons or
property arising from the operation of the Project. All insurance shall be
maintained by means of policies including blanket policies with generally
recognized, responsible insurance companies or in conjunction with other
companies through an insurance trust or through self-insurance.
4.8 TAXES AND SPECIAL ASSESSMENTS. Until payment in full of the Loan made
hereunder and the Bonds, the Company will pay all taxes and special assessments
levied upon or with respect to the Project.
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4.9 FINANCING STATEMENTS. The Company will cause all necessary financing
statements, amendments thereto, continuation statements and instruments of
similar character relating to the assignment and grants made to secure the
Bonds, to be recorded and filed in such manner and in such places as may be
required by law in order to fully preserve and protect the security of the
Holder.
4.10 NOTICES. The Company hereby agrees that it will notify the Issuer
immediately upon its failure to make any payment on the Loan on a timely basis.
V. EVENTS OF DEFAULT AND REMEDIES.
5.1 EVENTS OF DEFAULT.
Each of the following events is hereby defined as, and is declared to be
and to constitute, an "Event of Default":
(a) failure by the Company to make any payment required to be made
pursuant to Section 3.2 hereof: (i) with respect to the payment of
principal, when the same is due, and (ii) with respect to the payment of
interest, when the same is due and continuing for more than 5 business days
thereafter; or
(b) failure by the Company to observe and perform any other covenant,
condition or agreement on its part to be observed or performed under this
Agreement or the Assignment for a period of 30 days after written notice,
specifying such failure and requesting that it be remedied, given to the
Company by the Issuer or the Holders; provided that, if such failure is of
such nature that it can be corrected, but not within such period, the same
shall not constitute an Event of Default so long as the Company institutes
prompt corrective action and is diligently pursuing the same; or
(c) if the Company
(1) admits in writing its inability to pay its debts generally
as they become due, or
(2) files a petition to be adjudicated a voluntary bankrupt in
bankruptcy or a similar petition under any insolvency act, or
(3) makes an assignment of a substantial portion of the
Company's assets for the benefit of its creditors except in the
ordinary course of business for fair market value, or
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(4) consents to the appointment of a receiver of itself or of
the whole or any substantial part of its property; or
(d) if the Company files a petition or answer seeking reorganization
or arrangement of the Company under the Federal bankruptcy law or any other
applicable law or statute; or
(e) if the Company, on a petition in bankruptcy filed against it, is
adjudicated a bankrupt or if a court of competent jurisdiction shall enter
an order or decree appointing, without the consent of the Company, a
receiver or trustee of the Company or of the whole or substantially all of
its Property, or approving a petition filed against it seeking
reorganization or arrangement of the Company under the Federal bankruptcy
laws or any other applicable law or statute, and such adjudication, order
or decree shall not be vacated or set aside or stayed within 60 days from
the date of the entry thereof; or
(f) if the Guarantors default under the terms of the Guaranty and
such Guarantors shall fail to cure such default to the extent, if any,
permitted under the Guaranty.
5.2 PAYMENT ON DEFAULT; SUIT THEREFOR. Upon the occurrence of an Event of
Default under Section 5.1 and during the continuance thereof, the Issuer or the
Holders, by notice in writing to the Company, may declare all sums which the
Company is obligated to pay hereunder to be due and payable immediately, and
upon any such declaration the same shall become and shall be immediately due and
payable, anything in this Agreement to the contrary notwithstanding. In
addition, the Company covenants to pay such further amounts as shall be
sufficient to cover the reasonable costs and expenses of collection to the
Issuer and the Holders, their agents, attorneys and counsel, and any expenses or
liabilities incurred by the Issuer or the Holders other than through its
negligence or bad faith. The Holders, in their discretion, may rescind any
declaration and, upon such rescission, the Issuer, the Holders and the Company
shall be restored to their respective positions hereunder. No such rescission
shall extend to any subsequent or other default hereunder or impair any right
consequent thereon.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Issuer or the Holders shall be entitled and empowered to institute
any actions or proceedings at law or in equity for the collection of the sums so
due and unpaid, and may prosecute any such action or proceeding to judgment or
final decree, and may enforce any such judgment or final decree against the
Company and collect in the manner provided by law out of the property of the
Company the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or for the
reorganization of the Company under the Federal bankruptcy laws or any other
applicable law or in case a
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receiver or trustee shall have been appointed for the property of the Company or
in the case of any other similar judicial proceedings relative to the Company or
to the creditors or property of the Company, the Issuer or the Holders shall be
entitled and empowered, by intervention in such proceedings or otherwise, to
file and prove a claim or claims for the whole amount due hereunder and interest
owing and unpaid in respect thereof and, in case of any judicial proceedings, to
file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Issuer or the Holders allowed in
such judicial proceedings relative to the Company, its creditors, or its
property, and to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute the same after the deduction
of its charges and expenses; and any receiver, assignee or trustee in bankruptcy
or reorganization is hereby authorized to make such payments to the Holders, and
to pay to the Holders any amount due them for expenses, including counsel fees
incurred by such Holders up to the date of such distribution.
5.3 CUMULATIVE RIGHTS. No remedy conferred upon or reserved to the Issuer
or the Holders by this Agreement or the Assignment is intended to be exclusive
of any other available remedy or remedies, but each and every such remedy shall
be in addition to every other remedy given under this Agreement or the
Assignment or now or hereafter existing at law or in equity or by statute. No
waiver by the Issuer or the Holders of any breach by the Company of any of its
obligations, agreements or covenants hereunder or in the Assignment shall be a
waiver of any subsequent breach, and no delay or omission to exercise any right
or power shall impair any such right or power or shall be construed to be a
waiver thereof, but any such right and power may be exercised from time to time
and as often as may be deemed expedient.
VI. MISCELLANEOUS.
6.1 NOTICES. All notices provided for in this Agreement, except as
otherwise provided, shall be in writing and shall be effective when received.
Notices to the Issuer shall be addressed as follows:
County of Perry, Kentucky
Courthouse, 481 Main Street
Hazard, Kentucky 41701
Attention: County Judge/Executive
and notices to the Company shall be addressed as follows:
TJ International
200 East Mallard
Boise, Idaho 83708
Attention: Corporate Secretary
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or such other addresses as may be filed in writing with the parties to this
Agreement and with the Holders. Copies of all notices delivered hereunder also
shall be sent to the Agent on behalf of itself and the Holders at the following
address or such other address as the Holders may designate in writing:
Wachovia Bank, N.A.
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Attention: Syndicate Services Group
6.2 ASSIGNMENTS. This Agreement may not be assigned by either party
without the consent of the other. Notwithstanding the foregoing, no merger,
consolidation or sale of assets permitted under Section 4.2 hereof shall be
deemed to be an assignment for purposes of this Section 6.2.
6.3 APPLICABLE LAW. This Agreement has been delivered in the Commonwealth
and shall be deemed to be governed by, and interpreted under, the laws of the
Commonwealth.
6.4 ILLEGAL, ETC. PROVISIONS DISREGARDED. In case any provision of this
Agreement for any reason shall be held invalid, illegal or unenforceable in any
respect, this Agreement shall be construed as if such provision had never been
contained herein.
6.5 AMENDMENTS. This Agreement may not be amended except by an instrument
in writing signed by the parties hereto and concurred in by the Holders.
6.6 SUCCESSORS AND ASSIGNS. The terms, conditions, covenants, agreements,
powers, privileges, notices and authorizations herein contained, mentioned or
referred to shall extend to, be binding upon and available for the successors
and, to the extent permitted hereunder, for the assigns of each of the
respective parties hereto.
6.7 TERM OF AGREEMENT. This Agreement shall become effective upon its
delivery and shall continue in effect until the Bonds have been paid.
6.8 HEADINGS FOR CONVENIENCE ONLY. The descriptive headings in this
Agreement are inserted for convenience only and shall not control or affect the
meaning or construction of any of the provisions hereof.
6.9 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original;
but such counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the said parties have executed this agreement as of the
day and year first above mentioned.
COUNTY OF PERRY, KENTUCKY
Attest: /s/ Shawn Adams By: /s/ Sherman Neace
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County Judge/Executive
TJ INTERNATIONAL, INC.
Attest: /s/ Patricia K. Stiburek By: /s/ Richard B. Drury
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Assistant Corporate Corporate Secretary
Secretary
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EXHIBIT A
THE PROJECT
The Project consists of certain equipment, structures and related systems
and facilities which comprise the solid waste disposal components of a laminated
strand lumber production facility in the County of Perry, Kentucky, including,
but not limited to, the solid waste processing components of the log processing
facility, the strander area, the billet processing area, the waste wood disposal
system and the sanitary waste facility of the laminated strand lumber production
facility.
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EXHIBIT B
TJ INTERNATIONAL, INC.
SOLID WASTE DISPOSAL NOTE
(County of Perry, Kentucky)
1997 Taxable Series
TJ INTERNATIONAL, INC. (the "Company"), a Delaware corporation, for
value received, promises to pay to the order of the County of Perry, Kentucky
(the "Issuer"), or its lawful assigns, the principal sum of $42,600,000 on
November 15, 2001, with interest on the outstanding balance, at the interest
rates, determined and payable at the times and in the manner and otherwise in
accordance with the terms set forth in the Issuer's Solid Waste Disposal Revenue
Bonds (TJ International Project), 1997 Taxable Series (the "Bonds") issued
concurrently with this Note, until payment of such principal has been made or
provided for.
This Note is subject to prepayment at the option of the Company in the
manner set forth in the Bonds for redemption of Bonds.
If, for any reason, the amounts specified above are not sufficient to
make corresponding payments of principal or redemption price of, and interest
on, all of the Issuer's Bonds, when such payments are due, the Company shall pay
as additional amounts due hereunder, the amounts required from time to time to
make up any such deficiency. Whenever payment or provision therefor has been
made in respect of the principal or redemption price of, and interest on all
such Bonds, this Note shall be deemed paid in full and shall be canceled and
returned to the Company.
All payments of principal and interest shall be made to the County or
its lawful assigns, in such coin or currency of the United States of America as
at the time of payment shall be legal tender for the payment of public and
private debts.
This Note is issued pursuant to a certain Loan Agreement (the
"Agreement") dated as of September 30, 1997 between the Issuer and the Company
relating to the financing of a solid waste disposal facility (the "Project").
The obligations of the Company to make the payments required hereunder shall be
absolute and unconditional without defense or set-off by reason of any default
by the suppliers under construction contracts and purchase orders covering the
acquisition, construction and installation of the Project or by the Issuer under
the Agreement or under any other agreement between the Company and the Issuer or
for any other reason, including without limitation, failure to complete the
Project, any acts or circumstances that may constitute failure of consideration,
destruction of or damage to the Project, commercial frustration of purpose, or
failure of the Issuer to perform and observe any agreement, whether express or
implied, or any duty, liability or obligation arising out of or connected with
the
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Agreement, it being the intention of the Company and the Issuer that the
payments hereunder will be paid in full when due without any delay or diminution
whatsoever.
In case one or more of the Events of Default specified in Section 5.1
of the Agreement shall have occurred and be continuing, then and in each and
every such case, the Issuer or its lawful assignees, by notice in writing to the
Company, may declare the unpaid balance of this Note to be due and payable
immediately, if concurrently with or prior to such notice the unpaid principal
amount of the Bonds has been declared to be due and payable, and upon any such
declaration the same shall become and shall be immediately due and payable,
anything in this Note or in the Agreement to the contrary notwithstanding.
In case the Issuer, or its lawful assignees shall have proceeded to
enforce its rights under this Note or the Agreement and such proceedings shall
have been discontinued or abandoned for any reason or shall have been determined
adversely to the Issuer or its lawful assignees, then and in every such case the
Company and the Issuer, or its lawful assignees, shall be restored to their
respective positions and rights hereunder, and all rights, remedies and powers
of the Company and the Issuer, or its lawful assignees, shall continue as though
no such proceeding had been taken.
In case the Company shall fail forthwith to pay all amounts due
hereunder and under the Agreement upon such demand, the Issuer, or its lawful
assignees, shall be entitled and empowered to institute any action or proceeding
at law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceeding to judgment or final decree, and may
enforce any such judgment or final decree against the Company and collect, in
the manner provided by law out of the property of the Company, the moneys
adjudged or decreed to be payable.
IN WITNESS WHEREOF, the Company has caused this Note to be duly
executed and delivered.
Dated September 30, 1997 TJ INTERNATIONAL, INC.
By:
---------------------------------
Richard Drury
Corporate Secretary and
Treasurer
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EXHIBIT C
NOTICE OF INTEREST RATE SELECTION
__________________ ___, 1997
Wachovia Bank, N.A., as Agent
191 Peachtree Street, N.W.
Atlanta, Georgia 30303-1757
Re: County of Perry, Kentucky, Solid Waste Disposal Revenue Bonds
(TJ International Project) 1997 Taxable Series
Ladies and Gentlemen:
Unless otherwise defined herein, capitalized terms used herein shall have
the meanings attributable thereto in the above-referenced bonds (the "Bonds").
This notice is delivered to you pursuant to Section 3.2 of the Loan
Agreement.
The undersigned, an authorized representative of the Company, hereby
requests that Bonds in the aggregate principal amount of $_____________ accrue
interest thereon at the [Adjusted LIBOR Interest Rate/Base Rate] established by
the terms of the Bonds. Such Bonds shall accrue interest for the duration of an
Interest Period with respect thereto of [30 days] [1 month] [2 months] [3
months] [6 months], commencing ______________ ___, _____.
The authorized representative of the Company whose signature appears below
has caused this Notice of Interest Rate Selection to be executed and delivered
by its duly authorized officer this ______ day of _________________, ______.
TJ INTERNATIONAL, INC.
By:
----------------------------------------
Title:
C-1
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Note to be duly
executed and delivered.
Dated: September 30, 1997 TJ INTERNATIONAL, INC.
By:
-------------------------------------
Vice President
C-2
<PAGE>
BOND GUARANTY AGREEMENT
dated as of
September 30, 1997
among
TJ INTERNATIONAL, INC.,
THE GUARANTOR SUBSIDIARIES Listed Herein,
WACHOVIA BANK, N.A.,
as Agent, and
Each of the Banks Which Becomes a Party Hereto
<PAGE>
TABLE OF CONTENTS
AMENDED AND RESTATED CREDIT AGREEMENT
Page
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ARTICLE IDEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . .1
SECTION 1.02. ACCOUNTING TERMS AND DETERMINATIONS . . . . . . . . . . 13
SECTION 1.03. REFERENCES. . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 1.04. USE OF DEFINED TERMS. . . . . . . . . . . . . . . . . . 14
SECTION 1.05. TERMINOLOGY . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE IITHE CREDITS. . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.01. GUARANTY OF PAYMENT . . . . . . . . . . . . . . . . . . 15
SECTION 2.02. GUARANTY UNCONDITIONAL. . . . . . . . . . . . . . . . . 15
SECTION 2.03. DISCHARGE ONLY UPON PAYMENT IN FULL;
REINSTATEMENT IN CERTAIN CIRCUMSTANCES. . . . . . . . . . . . . . 16
SECTION 2.04. WAIVER OF NOTICE BY THE GUARANTOR . . . . . . . . . . . 16
SECTION 2.05. STAY OF ACCELERATION. . . . . . . . . . . . . . . . . . 16
SECTION 2.06. NO WAIVERS. . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 2.07. SUBROGATION . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 2.08. CONTRIBUTION. . . . . . . . . . . . . . . . . . . . . . 17
SECTION 2.09. GENERAL PROVISIONS AS TO PAYMENTS . . . . . . . . . . . 18
SECTION 2.09. GENERAL PROVISIONS AS TO PAYMENTS . . . . . . . . . . . 19
ARTICLE IIICONDITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 3.01. CONDITIONS TO CLOSING DATE. . . . . . . . . . . . . . . 20
ARTICLE IVREPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . 22
SECTION 4.01. EXISTENCE AND POWER . . . . . . . . . . . . . . . . . . 22
SECTION 4.02. AUTHORIZATION; NO CONTRAVENTION . . . . . . . . . . . . 22
SECTION 4.03. BINDING EFFECT. . . . . . . . . . . . . . . . . . . . . 22
SECTION 4.04. FINANCIAL INFORMATION . . . . . . . . . . . . . . . . . 23
SECTION 4.05. NO LITIGATION . . . . . . . . . . . . . . . . . . . . . 23
SECTION 4.06. COMPLIANCE WITH ERISA . . . . . . . . . . . . . . . . . 23
SECTION 4.07. COMPLIANCE WITH LAWS; PAYMENTS OF TAXES . . . . . . . . 24
SECTION 4.08. SUBSIDIARIES. . . . . . . . . . . . . . . . . . . . . . 24
SECTION 4.09. NOT AN INVESTMENT COMPANY . . . . . . . . . . . . . . . 24
SECTION 4.10. OWNERSHIP OF PROPERTY; LIENS. . . . . . . . . . . . . . 24
SECTION 4.11. NO DEFAULT. . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 4.12. FULL DISCLOSURE . . . . . . . . . . . . . . . . . . . . 25
SECTION 4.13. ENVIRONMENTAL MATTERS . . . . . . . . . . . . . . . . . 25
SECTION 4.14. CAPITAL STOCK . . . . . . . . . . . . . . . . . . . . . 26
i
<PAGE>
SECTION 4.15. MARGIN STOCK. . . . . . . . . . . . . . . . . . . . . . 26
SECTION 4.16. INSOLVENCY. . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 4.17. PUBLIC UTILITY HOLDING COMPANY ACT. . . . . . . . . . . 26
ARTICLE VCOVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 5.01. INFORMATION . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 5.02. INSPECTION OF PROPERTY, BOOKS AND RECORDS . . . . . . . 29
SECTION 5.03. RATIO OF ADJUSTED FUNDED DEBT TO CONSOLIDATED
TOTAL CAPITAL . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 5.04. MINIMUM CONSOLIDATED TANGIBLE NET WORTH . . . . . . . . 29
SECTION 5.05. RATIO OF CONSOLIDATED CASH FLOW TO CONSOLIDATED
FUNDED DEBT . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 5.06. INTENTIONALLY DELETED . . . . . . . . . . . . . . . . . 30
SECTION 5.07. LOANS OR ADVANCES . . . . . . . . . . . . . . . . . . . 30
SECTION 5.08. INVESTMENTS . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 5.08. NEGATIVE PLEDGE . . . . . . . . . . . . . . . . . . . . 31
SECTION 5.10. MAINTENANCE OF EXISTENCE. . . . . . . . . . . . . . . . 33
SECTION 5.11. DISSOLUTION . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 5.12. CONSOLIDATIONS, MERGERS AND SALES OF ASSETS . . . . . . 33
SECTION 5.13. USE OF PROCEEDS . . . . . . . . . . . . . . . . . . . . 34
SECTION 5.14. COMPLIANCE WITH LAWS; PAYMENT OF TAXES. . . . . . . . . 34
SECTION 5.15. INSURANCE . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 5.16. CHANGE IN FISCAL YEAR . . . . . . . . . . . . . . . . . 35
SECTION 5.17. MAINTENANCE OF PROPERTY . . . . . . . . . . . . . . . . 35
SECTION 5.18. ENVIRONMENTAL NOTICES . . . . . . . . . . . . . . . . . 35
SECTION 5.18. ENVIRONMENTAL MATTERS . . . . . . . . . . . . . . . . . 36
SECTION 5.20. ENVIRONMENTAL RELEASE . . . . . . . . . . . . . . . . . 36
SECTION 5.21. OTHER DEBT. . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 5.22. TRANSACTIONS WITH AFFILIATES. . . . . . . . . . . . . . 37
SECTION 5.23. DEBT OF SUBSIDIARIES; DELIVERY OF GUARANTIES
OF SUBSIDIARIES . . . . . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE VIDEFAULTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 6.01. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . 38
SECTION 6.02. NOTICE OF DEFAULT . . . . . . . . . . . . . . . . . . . 42
ARTICLE VIITHE AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 7.01. APPOINTMENT; POWERS AND IMMUNITIES. . . . . . . . . . . 42
SECTION 7.02. RELIANCE BY AGENT . . . . . . . . . . . . . . . . . . . 43
SECTION 7.03. DEFAULTS. . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 7.04. RIGHTS OF AGENT AS A BANK . . . . . . . . . . . . . . . 44
SECTION 7.05. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . 44
ii
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SECTION 7.06. CONSEQUENTIAL DAMAGES . . . . . . . . . . . . . . . . . 44
SECTION 7.07. PAYEE OF BOND TREATED AS OWNER. . . . . . . . . . . . . 45
SECTION 7.08. NONRELIANCE ON AGENT AND OTHER BANKS. . . . . . . . . . 45
SECTION 7.08. FAILURE TO ACT. . . . . . . . . . . . . . . . . . . . . 45
SECTION 7.10. RESIGNATION OR REMOVAL OF AGENT . . . . . . . . . . . . 46
ARTICLE VIIIMISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 8.01. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 8.02. NO WAIVERS. . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 8.03. EXPENSES; DOCUMENTARY TAXES . . . . . . . . . . . . . . 47
SECTION 8.04. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . 47
SECTION 8.05. SHARING OF SETOFFS. . . . . . . . . . . . . . . . . . . 48
SECTION 8.06. AMENDMENTS AND WAIVERS. . . . . . . . . . . . . . . . . 48
SECTION 8.07. NO MARGIN STOCK COLLATERAL. . . . . . . . . . . . . . . 49
SECTION 8.08. SUCCESSORS AND ASSIGNS. . . . . . . . . . . . . . . . . 50
SECTION 8.08. CONFIDENTIALITY . . . . . . . . . . . . . . . . . . . . 51
SECTION 8.10. REPRESENTATION BY BANKS . . . . . . . . . . . . . . . . 51
SECTION 8.11. OBLIGATIONS . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 8.12. GEORGIA LAW . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 8.13. INTERPRETATION. . . . . . . . . . . . . . . . . . . . . 52
SECTION 8.14. WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION . . . . . 52
SECTION 8.15. COUNTERPARTS. . . . . . . . . . . . . . . . . . . . . . 52
SECTION 8.16. SEVERABILITY; INCONSISTENCY WITH LOAN AGREEMENT.. . . . 52
SECTION 8.17. INTEREST. . . . . . . . . . . . . . . . . . . . . . . . 53
iii
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Page
iv
<PAGE>
Page
EXHIBIT A Form of Opinion of Counsel for the Parent and the Guarantors
EXHIBIT B Form of Opinion of Counsel for the Issuer
EXHIBIT C Form of Compliance Certificate
EXHIBIT D Form of Closing Certificate
Schedule 4.06 ERISA Information
Schedule 4.08 Subsidiaries
Schedule 4.13 Environmental Matters
Schedule 5.12 Fenestration Product Businesses
v
<PAGE>
BOND GUARANTY AGREEMENT
BOND GUARANTY AGREEMENT dated as of September 30, 1997, among TJ
INTERNATIONAL, INC., a Delaware corporation (the "Parent") and TRUS JOIST
MACMILLAN A LIMITED PARTNERSHIP, a Delaware limited partnership, NORCO WINDOWS,
INC., a Wisconsin corporation, TRUS JOIST MACMILLAN LIMITED, a Province of
British Columbia corporation, TRUS-JOIST (WESTERN) LTD., a Province of New
Brunswick corporation, TJM FACILITIES CORPORATION, a Delaware corporation
(individually and collectively, as the context may require, the "Guarantor
Subsidiaries"; the Parent and the Guarantor Subsidiaries are individually and
collectively, as the context may require, and jointly and severally referred to
herein as the "Guarantors"), in favor of WACHOVIA BANK, N.A., as Agent for the
Banks (defined below).
ARTICLE I
DEFINITIONSI DEFINITIONS
SECTION 1.01. DEFINITIONS1.01. DEFINITIONS.01. 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 Parent's Consolidated Rental Expense for the
immediately preceding 4 Fiscal Quarters then ended multiplied by 6.
1
<PAGE>
"Affiliate" means (i) any Person that directly, or indirectly through
one or more intermediaries, controls the Parent (a "Controlling Person"), (ii)
any Person (other than the Parent 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 Parent 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, 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 September 11, 1997, 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.
"Agreement" means this Bond Guaranty Agreement, together with all
amendments and modifications hereto.
"Allocable Amount" has the meaning set forth in Section 2.07(b).
"Assignment" has the meaning set forth in the Loan Agreement.
"Authority" means any governmental authority, central bank or
comparable agency charged with the interpretation or administration of laws and
regulations dealing with banks.
"Bank" means each bank listed on the signature pages hereof and its
successors and assigns, and "Banks" means all such Banks.
2
<PAGE>
"Bankruptcy Code" has the meaning set forth in Section 2.07(b).
"Base Rate" has the meaning set forth in the Bonds.
"Bond Documents" means this Agreement, the Bonds, the Purchase
Agreement, the Loan Agreement, the Note, the Assignment, and any other document
evidencing, relating to or securing the Bonds including, without limitation, any
other document or instrument delivered from time to time in connection therewith
as such documents and instruments may be amended or modified from time to time.
"Bonds" means the Solid Waste Disposal Revenue Bonds (TJ International
Project), 1997 Taxable Series, purchased by the Banks in accordance with the
terms of the Purchase Agreement.
"Capital Stock" means any nonredeemable capital stock of the Parent or
any Consolidated Subsidiary of the Parent (to the extent issued to a Person
other than the Parent), 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.
"Closing Certificate" has the meaning set forth in Section 3.01(e).
"Closing Date" means September 30, 1997.
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor Federal tax code.
"Compliance Certificate" has the meaning set forth in Section 5.01(c).
3
<PAGE>
"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 Parent 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 Parent and its Consolidated Subsidiaries.
"Consolidated Funded Debt" means at any date, all Debt of the Parent
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
Parent and its Consolidated Subsidiaries determined on a consolidated basis.
"Consolidated Net Worth" means, at any time, the Stockholders' Equity
of the Parent and its Subsidiaries, as determined in accordance with GAAP, plus
the minority interests in the Partnerships.
"Consolidated Rental Expense" for any period means all payment
obligations of the Parent 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 Parent 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
4
<PAGE>
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 Parent 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 Parent (other than the Founder's
Stock) appear as an asset on the consolidated balance sheet of the Parent and
its Consolidated Subsidiaries; and
(D) Bonds to stockholders, directors, officers or employees.
"Consolidated Total Assets" means, at any time, the total assets of
the Parent and its Consolidated Subsidiaries, determined on a consolidated
basis, as set forth or reflected on the most recent consolidated balance sheet
of the Parent 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.
"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 Parent, are treated as a single employer
under Section 414 of the Code.
5
<PAGE>
"Credit Agreement" means that certain Credit Agreement dated as of May
31, 1995 between the Parent, as borrower, the Agent, as the agent, and the other
Banks, as the same may be amended or otherwise modified from time to time.
"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 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 the sum of the Base Rate plus 2%.
"Depreciation" means for any period the sum of all depreciation
expenses of the Parent and its Consolidated Subsidiaries for such period, as
determined in accordance with GAAP.
6
<PAGE>
"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.
"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
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.
7
<PAGE>
"Environmental Requirements" means any legal requirement relating to
health, safety or the environment and applicable to the Parent, 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.
"Fenestration Products Business" means the business of manufacturing
and marketing doors, windows and other fenestration products.
"Fiscal Quarter" means any fiscal quarter of the Parent.
"Fiscal Year" means any fiscal year of the Parent.
"Founder's Stock" means any and all shares of Capital Stock of the
Parent 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 24, 1997, is approximately 1,640,000 shares. The quoted
sales prices (closing) of the Parent's common shares of Capital Stock during
1996 ranged from a low of $14-3/4 to a high of $22-1/2 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,
8
<PAGE>
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.
"Guaranteed Obligations" has the meaning set forth in Section 2.01.
"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.
"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,
9
<PAGE>
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.
"Issuer" means the County of Perry, Kentucky, a county and political
subdivision of the Commonwealth of Kentucky.
"Lien" means, with respect to any asset, any mortgage, deed to secure
debt, deed of trust, lien, pledge, charge, security interest, security title,
preferential arrangement, which has the practical effect of constituting a
security interest or encumbrance, or encumbrance or servitude of any kind in
respect of such asset to secure or assure payment of a Debt or a Guarantee,
whether by consensual agreement or by operation of statute or other law, or any
agreement, contingent or otherwise, to provide any of the foregoing. For the
purposes of this Agreement, the Parent 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 Agreement" means that certain Loan Agreement dated as of even
date herewith between the Issuer and the Parent, as amended or otherwise
modified from time to time.
"Majority Banks" means at any time Banks having at least 51% of the
aggregate outstanding principal amount of the Bonds.
"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
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condition, operations, business, or properties of the Parent and its
Consolidated Subsidiaries taken as a whole, (b) the ability of the Parent to
perform its obligations under the Bond 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 Bond Document.
"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
Parent 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 Parent or such Consolidated Subsidiary directly in connection
with the issuance of such Capital Stock.
"Note" means that certain $42,600,000 TJ International, Inc. Solid
Waste Disposal Note (County of Perry, Kentucky) 1997 Taxable Series as amended
or otherwise modified from time to time.
"Notice of Interest Period Selection" has the meaning set forth in the
Bond.
"Parent" means TJ International, Inc., a Delaware corporation, and its
successors and its permitted assigns.
"Participant" has the meaning set forth in Section 8.08(b).
"Partnerships" means (i) Trus Joist MacMillan a Limited Partnership, a
Delaware limited partnership, and its successors and permitted assigns, and (ii)
any other Subsidiary which is a partnership.
"PBGC" means the Pension Benefit Guaranty Corporation
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or any entity succeeding to any or all of its functions under ERISA.
"Person" means an individual, a corporation, a partnership, an
unincorporated association, a trust or any other entity or organization,
including, but not limited to, a government or political subdivision or an
agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan which is
covered by Title IV of ERISA or subject to the minimum funding standards under
Section 412 of the Code and is either (i) maintained by a member of the
Controlled Group for employees of any member of the Controlled Group or (ii)
maintained pursuant to a collective bargaining agreement or any other
arrangement under which more than one employer makes contributions and to which
a member of the Controlled Group is then making or accruing an obligation to
make contributions or has within the preceding 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 Parent or any Subsidiary, wherever located.
"Purchase Agreement" means that certain Bond Purchase Agreement among
the Issuer, the Agent and the Banks, dated as of even date herewith, as the same
may be amended or otherwise modified from time to time.
"Quarterly Date" means the last day of each Fiscal Quarter.
"Quotation Date" has the meaning specified in Section 2.03.
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"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.
"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 outstanding principal amount of the Bonds.
"Reserve Percentage" means for any day that percentage
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(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 Bonds 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 Parent 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 Parent
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 Parent or any of the Subsidiaries and (iii) are
fully secured by perfected first priority Liens on the timber or logs so
acquired.
"Stockholders' Equity" means, at any time, the shareholders' equity of
the Parent and its Consolidated Subsidiaries, as set forth or reflected on the
most recent consolidated balance sheet of the Parent and its Consolidated
Subsidiaries prepared in accordance with GAAP, BUT EXCLUDING any Redeemable
Preferred Stock of the Parent 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 (i) each Guarantor other than the Parent, and (ii)
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
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directly or indirectly owned by the Parent or a Subsidiary of the Parent.
"Subsidiary Payment" has the meaning set forth in Section 2.08(a).
"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 Parent's business and on a temporary basis.
"Transferee" has the meaning set forth in Section 8.08(d).
"UFCA" has the meaning set forth in Section 2.07(b).
"UFTA" has the meaning set forth in Section 2.07(b).
"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.
"Wachovia" means Wachovia Bank, 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 Parent.
SECTION 1.02. ACCOUNTING TERMS AND DETERMINATIONS1.02. 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 accounting
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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 Parent's independent
public accountants or otherwise required by a change in GAAP) with the most
recent audited consolidated financial statements of the Parent and its
respective Consolidated Subsidiaries delivered to the Banks unless with respect
to any such change concurred in by the Parent's independent public accountants
or required by GAAP, in determining compliance with any of the provisions of any
of the Bond Documents: (i) the Parent shall have objected to determining such
compliance on such basis at the time of delivery of such financial statements,
or (ii) the 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. REFERENCES1.03. 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 TERMS1.04. USE OF DEFINED TERMS.
All terms defined in this Agreement shall have the same defined meanings when
used in any of the other Bond Documents, unless otherwise defined therein or
unless the context shall require otherwise.
SECTION 1.05. TERMINOLOGY1.05. 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 CREDITSII THE CREDITS
SECTION 2.01. GUARANTY OF PAYMENT2.01. GUARANTY OF PAYMENT. Each
Guarantor hereby jointly and severally, and unconditionally guarantees the full
and punctual payment (whether at stated maturity, upon acceleration or
otherwise) of the principal of and interest on each Bond issued by the Issuer
pursuant to the Purchase Agreement, and the full and punctual payment of all
other amounts payable by the Issuer under the Purchase Agreement (all of the
foregoing obligations being referred to collectively as the "Guaranteed
Obligations"). Upon failure by the Issuer to pay punctually any such amount,
each Guarantor agrees that it shall forthwith on demand pay the amount not so
paid at the place and in the manner specified in the Purchase Agreement or the
relevant Bond, as the case may be.
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SECTION 2.02. GUARANTY UNCONDITIONAL2.02. GUARANTY UNCONDITIONAL.
The obligations of each Guarantor hereunder shall be unconditional and absolute
and, without limiting the generality of the foregoing, shall not be released,
discharged or otherwise affected by: (i) any extension, renewal, settlement,
compromise, waiver or release in respect of any obligation of the Issuer under
the Purchase Agreement, any Bond, or any other Bond Document, by operation of
law or otherwise or any obligation of any other guarantor of any of the
Guaranteed Obligations; (ii) any modification or amendment of or supplement to
the Purchase Agreement, any Bond, or any other Bond Document; (iii) any release,
nonperfection or invalidity of any direct or indirect security for any
obligation of the Issuer under the Purchase Agreement, any Bond, any Bond
Document, or any obligations of any other guarantor of any of the Guaranteed
Obligations; (iv) any change in the existence, structure or ownership of the
Issuer or any other guarantor of any of the Guaranteed Obligations, or any
insolvency, bankruptcy, reorganization or other similar proceeding affecting the
Issuer, or any other guarantor of the Guaranteed Obligations, or its assets or
any resulting release or discharge of any obligation of the Issuer, or any other
guarantor of any of the Guaranteed Obligations; (v) the existence of any claim,
setoff or other rights which the Guarantor may have at any time against the
Issuer, any other guarantor of any of the Guaranteed Obligations, the Agent, any
Bank or any other Person, whether in connection herewith or any unrelated
transactions, provided that nothing herein shall prevent the assertion of any
such claim by separate suit or compulsory counterclaim; (vi) any invalidity or
unenforceability relating to or against the Issuer, or any other guarantor of
any of the Guaranteed Obligations, for any reason related to the Purchase
Agreement, any other Bond Document, or any other Guaranty, or any provision of
applicable law or regulation purporting to prohibit the payment by the Issuer,
or any other guarantor of the Guaranteed Obligations, of the principal of or
interest on any Bond or any other amount payable by the Issuer under the
Purchase Agreement, the Bonds, or any other Bond Document; or (vii) any other
act or omission to act or delay of any kind by the Issuer, any other guarantor
of the Guaranteed Obligations, the Agent, any Bank or any other Person or any
other circumstance whatsoever which might, but for the provisions of this
paragraph, constitute a legal or equitable
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discharge of the Guarantor's obligations hereunder, including without
limitation, any failure, omission, delay or inability on the part of the Agent
or any Bank to enforce, assert or exercise any right power or remedy conferred
on the Agent or any Bank under the Purchase Agreement or any other Bond
Documents.
SECTION 2.03. DISCHARGE ONLY UPON PAYMENT IN FULL; REINSTATEMENT IN
CERTAIN CIRCUMSTANCES2.03. DISCHARGE ONLY UPON PAYMENT IN FULL; REINSTATEMENT
IN CERTAIN CIRCUMSTANCES. The Guarantor's obligations hereunder shall remain in
full force and effect until all Guaranteed Obligations shall have been paid in
full. If at any time any payment of the principal of or interest on any Bond or
any other amount payable by the Issuer under the Purchase Agreement, any Bond,
or any other Bond Document is rescinded or must be otherwise restored or
returned upon the insolvency, bankruptcy or reorganization of the Issuer or
otherwise, the Guarantor's obligations hereunder with respect to such payment
shall be reinstated as though such payment had been due but not made at such
time.
SECTION 2.04. WAIVER OF NOTICE BY THE GUARANTOR2.04. WAIVER OF
NOTICE BY THE GUARANTOR. The Guarantor irrevocably waives acceptance hereof,
presentment, demand, protest and, to the fullest extent permitted by law, any
notice not provided for herein, as well as any requirement that at any time any
action be taken by any Person against the Issuer, any other guarantor of the
Guaranteed Obligations, or any other Person.
SECTION 2.05. STAY OF ACCELERATION2.05. STAY OF ACCELERATION. If
acceleration of the time for payment of any amount payable by the Issuer under
the Purchase Agreement, any Bond or any other Bond Document is stayed upon the
insolvency, bankruptcy or reorganization of the Issuer, all such amounts
otherwise subject to acceleration under the terms of the Purchase Agreement, any
Bond or any other Bond Document shall nonetheless be payable by the Guarantor
hereunder forthwith on demand by the Agent made at the request of the Required
Banks.
SECTION 2.06. NO WAIVERS2.06. NO WAIVERS. No failure or delay by
the Agent or any Banks in exercising any right, power or privilege hereunder
shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any
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other right, power or privilege. The rights and remedies provided in this
Agreement, the Purchase Agreement, the Bonds, and the other Bond Documents shall
be cumulative and not exclusive of any rights or remedies provided by law.
SECTION 2.07. SUBROGATION2.07. SUBROGATION. Each Guarantor hereby
agrees that it will not exercise any rights which it may acquire by way of
subrogation under this Agreement, by any payment made hereunder or otherwise,
unless and until all of the Guaranteed Obligations shall have been paid in full.
If any amount shall be paid to any Guarantor on account of such subrogation
rights at any time when all of the Guaranteed Obligations shall not have been
paid in full, such amount shall be held in trust for the benefit of the Agent
and the Banks and shall forthwith be paid to the Agent to be credited and
applied upon the Guaranteed Obligations, whether matured or unmatured, in
accordance with the terms of this Agreement.
SECTION 2.08. CONTRIBUTION2.08. CONTRIBUTION. (a) To the extent
that any Guarantor Subsidiary shall make a payment (a "Subsidiary Payment") of a
portion of the "Guaranteed Obligations" (as defined in the Guaranty), THEN such
Subsidiary shall be entitled to contribution and indemnification from, and be
reimbursed by, each of the other Guarantor Subsidiaries in an amount, for each
such Guarantor Subsidiary, equal to a fraction of such Subsidiary Payment, the
numerator of which fraction is such Guarantor Subsidiary's Allocable Amount and
the denominator of which is the sum of the Allocable Amounts of all of the
Guarantor Subsidiaries.
(b) As of any date of determination, the "Allocable Amount" of each
Guarantor Subsidiary shall be equal to the maximum amount of liability which
could be asserted against such Guarantor Subsidiary hereunder with respect to
the applicable Subsidiary Payment without (i) rendering such Guarantor
Subsidiary "insolvent" within the meaning of Section 101(31) of the Federal
Bankruptcy Code (the "Bankruptcy Code") or Section 2 of either the Uniform
Fraudulent Transfer Act (the "UFTA") or the Uniform Fraudulent Conveyance Act
(the "UFCA"), (ii) leaving such Guarantor Subsidiary with unreasonably small
capital, within the meaning of Section 548 of the Bankruptcy Code or Section 4
of the
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UFTA or Section 5 of the UFCA, or (iii) leaving such Guarantor Subsidiary unable
to pay its debts as they become due within the meaning of Section 548 of the
Bankruptcy Code or Section 4 of the UFTA or Section 6 of the UFCA.
(c) This Agreement is intended only to define the relative rights of
the Guarantor Subsidiaries, and nothing set forth in this Agreement is intended
to or shall impair the obligations of the Guarantor Subsidiaries, jointly and
severally, to pay any amounts, as and when the same shall become due and payable
in accordance with the terms of this Agreement.
(d) The parties hereto acknowledge that the rights of contribution
and indemnification hereunder shall constitute assets in favor of each Guarantor
Subsidiary to which such contribution and indemnification is owing.
SECTION 2.09. GENERAL PROVISIONS AS TO PAYMENTS2.09. GENERAL
PROVISIONS AS TO PAYMENTS. (a) All payments of the Guaranteed Obligations and
all other amounts to be made by each Guarantor pursuant to this Agreement shall
be paid without deduction for, and free from, any tax, imposts, levies, duties,
deductions, or withholdings of any nature now or at anytime hereafter imposed by
any governmental authority or by any taxing authority thereof or therein
excluding taxes imposed on or measured by a Bank's net income ("Taxes"). In the
event that a Guarantor is required by applicable law to make any such
withholding or deduction of Taxes with respect to any payment of Guaranteed
Obligations or fee or other amount, such Guarantor 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 payment of
Guaranteed Obligations, such Guarantor 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 a Guarantor fails to provide such Bank
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the original or certified copy of a receipt evidencing payment of Taxes or
certificate(s) or opinion of counsel of exemption, such Guarantor agrees to
compensate such Bank for the tax consequences of such Guarantor's failure to
provide evidence of tax payments or tax exemption. In addition, each Guarantor
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 this Agreement, any Bond or any other Bond Document (hereinafter
referred to as "Other Taxes"). Without limiting the foregoing, each Guarantor
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.
(b) In the event any Bank receives a refund of any Taxes paid by any
Guarantor pursuant to this Section 2.08, such Bank will pay to such Guarantor
the amount of such refund promptly upon receipt thereof; PROVIDED, HOWEVER, if
at any time thereafter such Bank is required to return such refund, such
Guarantor shall promptly repay to such Bank the amount of such refund.
(c) 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 Parent 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
Parent under this Agreement with respect to Bonds free from withholding of
United States Federal income tax.
(d) Without prejudice to the survival of any other agreement of each
Guarantor hereunder, the agreements and obligations of each Guarantor and the
Banks contained in this
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Section 2.09(c) constitute a continuing agreement and shall survive the
termination of this Agreement and the payment in full or cancellation of the
Bonds.
SECTION 2.09. GENERAL PROVISIONS AS TO PAYMENTS2.09. GENERAL
PROVISIONS AS TO PAYMENTS. 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.
ARTICLE III
CONDITIONSIII CONDITIONS
SECTION 3.01. CONDITIONS TO CLOSING DATE3.01. CONDITIONS TO
CLOSING DATE. The obligation of each Bank to purchase its Bond under the terms
of the Purchase Agreement on the Closing Date is subject to the satisfaction of
the conditions set forth below and receipt by the Agent of the following (in
sufficient number of counterparts (except as to the Bonds and the Note) 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 Bond for the account of each Bank complying with
the terms of the Purchase Agreement;
(c) an opinion letter (together with any opinions of counsel relied
on therein) of Hawley Troxell Ennis & Hawley, counsel for the Guarantors
incorporated in the United States dated the Closing Date, substantially in
the form of EXHIBIT A and covering such additional matters relating to the
transactions contemplated hereby as the Agent or any Bank may reasonably
request;
(d) an opinion letter of Brown, Todd & Heyburn, PLLC, special counsel
for the Issuer, dated the Closing Date substantially in the form of
EXHIBIT B and covering such
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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
Closing Date, substantially in the form of EXHIBIT C, signed by the
principal financial officers of the Parent, to the effect that (i) no
Default has occurred and is continuing on the Closing Date and (ii) the
representations and warranties of the Parent contained in Article IV are
true on and as of the Closing Date;
(f) a duly executed Assignment;
(g) the endorsement to and delivery of the original Note and Loan
Agreement to the Agent pursuant to the Assignment;
(h) all documents which the Agent or any Bank may reasonably request
relating to the existence of the Issuer, the Parent and the other
Guarantors, the corporate or partnership authority, as applicable, for and
the validity of this Agreement, the Bonds, the Purchase Agreement the Loan
Agreement, the Note, the other Bond Documents 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 each
of the Guarantors, signed by the Secretary or an Assistant Secretary 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 Guarantors or their general partners, as applicable,
authorized to execute and deliver this Agreement, the Bonds, the Loan
Agreement, the Note and the other Bond Documents, and certified copies of
the following items, for the Issuer, the Parent and each of the Guarantors,
respectively: (i) with respect to the Guarantors (A) Certificate or
Articles of Incorporation or partnership certificate, (B) Bylaws (if
corporation), (C) 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 (D) the
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action taken by the Board of Directors authorizing the execution, delivery
and performance of this Agreement, the Bonds, the Loan Agreement, the Note
and the other Bond Documents to which the Parent or any of the Guarantors
is a party; and (ii) the Issuer's resolutions authorizing the issuance of
the Bonds and execution of the Loan Agreement, the Note and the other Bond
Documents;
(i) a Notice of Interest Period Selection; and
(j) any fees which are due and payable on the Closing Date under the
Agent's Letter Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIESIV REPRESENTATIONS AND
WARRANTIES
Each Guarantor represents and warrants that:
SECTION 4.01. EXISTENCE AND POWER4.01. EXISTENCE AND POWER. The
Parent 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. The Partnerships are 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.
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SECTION 4.02. AUTHORIZATION; NO CONTRAVENTION4.02. AUTHORIZATION;
NO CONTRAVENTION. The execution, delivery and performance by each Guarantor of
this Agreement, the Bonds, and the other Bond Documents to which it is a party
(i) are within its respective corporate or partnership powers, (ii) have been
duly authorized by all necessary corporate or partnership 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 its certificate of incorporation or
by-laws, (or partnership agreement) or of any agreement, judgment, injunction,
order, decree or other instrument binding upon it, and (v) do not result in the
creation or imposition of any Lien on any asset of the Guarantors.
SECTION 4.03. BINDING EFFECT4.03. BINDING EFFECT. This Agreement
constitutes a valid and binding agreement of each Guarantor enforceable in
accordance with its terms, and the Bonds, and the other Bond Documents to which
a Guarantor is a party, when executed and delivered in accordance with this
Agreement, will constitute its valid and binding obligations 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 INFORMATION4.04. FINANCIAL INFORMATION.
(a) The consolidated balance sheet of the Parent and its Consolidated
Subsidiaries as of December 28, 1996 and the related consolidated statements of
income, shareholders' equity and cash flows for the Fiscal Year then ended,
reported on by Arthur Andersen LLP, copies of which have been delivered to each
of the Banks, and the unaudited consolidated financial statements of the Parent
and its Consolidated Subsidiaries for the interim period ended June 28, 1997,
copies of which have been delivered to each of the Banks, fairly present, in
conformity with GAAP, the consolidated financial position of the Parent and its
Consolidated Subsidiaries as of such dates and their consolidated results of
operations and cash flows for such periods stated.
(b) Since December 28, 1996, there has been no event,
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act, condition or occurrence having a Material Adverse Effect.
SECTION 4.05. NO LITIGATION4.05. NO LITIGATION. There is no action,
suit or proceeding pending, or to the knowledge of the Parent threatened,
against or affecting the Parent 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 a
Material Adverse Effect or which in any manner draws into question the validity
of this Agreement, the Bonds or any of the other Bond Documents.
SECTION 4.06. COMPLIANCE WITH ERISA4.06. COMPLIANCE WITH ERISA.
(a) The Parent 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
Parent's knowledge to the extent they apply to any Multiemployer Plan.
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(b) Except as set forth in Schedule 4.06, neither the Parent 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 TAXES4.07. COMPLIANCE
WITH LAWS; PAYMENTS OF TAXES. The Parent 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 Parent
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 Parent 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 Parent and its Subsidiaries in respect of taxes or
other governmental charges are, in the opinion of the Parent, adequate. Income
tax returns of the Parent and its Subsidiaries for United States Federal income
taxes have been examined and closed through the Fiscal Year ended 1990.
SECTION 4.08. SUBSIDIARIES4.08. SUBSIDIARIES. Each of the Parent'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 Parent 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 Parent), which
accurately sets forth each such Subsidiary's complete name and jurisdiction of
incorporation or formation.
SECTION 4.09. NOT AN INVESTMENT COMPANY4.09. NOT AN INVESTMENT
COMPANY. Neither the Parent nor any of its
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Subsidiaries is an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
SECTION 4.10. OWNERSHIP OF PROPERTY; LIENS4.10. OWNERSHIP OF
PROPERTY; LIENS. Each of the Parent 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 5.08.
SECTION 4.11. NO DEFAULT4.11. NO DEFAULT. Neither the Parent 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 DISCLOSURE4.12. FULL DISCLOSURE. All
information heretofore furnished by the Parent 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 Parent 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 Parent has disclosed to the Banks in writing any and
all facts which have a reasonable probability of having or causing a Material
Adverse Effect.
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SECTION 4.13. ENVIRONMENTAL MATTERS4.13. ENVIRONMENTAL MATTERS.
(a) Neither the Parent 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 Parent), neither
the Parent 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 Parent), 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 Parent or any Subsidiary or by any Third Party, or are
otherwise present at, on, in or under the Properties, or, to the best of the
knowledge of the Parent, 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 Parent
or any Subsidiary in compliance in all material respects with all applicable
Environmental Requirements.
(c) Except as described in Schedule 4.13, the Parent and each of its
Subsidiaries and Affiliates are in compliance with all Environmental
Requirements in connection with the operation of the Properties and the Parent's
and each of its Subsidiary's and Affiliate's respective businesses.
SECTION 4.14. CAPITAL STOCK4.14. CAPITAL STOCK. All Capital Stock
(but solely with respect to the Parent and Subsidiaries which are corporations),
debentures, bonds, notes and all other securities of the Parent and its
Subsidiaries presently issued and outstanding are validly and properly issued in
accordance with all applicable laws, including but not limited
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to, the "Blue Sky" laws of all applicable states and the federal securities
laws. The issued shares of Capital Stock of the Parent's Wholly Owned
Subsidiaries are owned by the Parent free and clear of any Lien or adverse
claim. At least a majority of the issued shares of capital stock of the
Parent's Subsidiaries which are corporations (other than Wholly Owned
Subsidiaries) is owned by the Parent free and clear of any Lien or adverse
claim.
SECTION 4.15. MARGIN STOCK4.15. MARGIN STOCK. Neither the Parent
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 Bond 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. INSOLVENCY4.16. INSOLVENCY. After giving effect to
the execution and delivery of the Bond Documents, no Guarantor will 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 Bankruptcy Code, the
UCFA or Section 2 of the UFTA, 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 ACT4.17. PUBLIC UTILITY
HOLDING COMPANY ACT. Neither the Parent 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.
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ARTICLE V
COVENANTSV COVENANTS
Each Guarantor agrees that, so long as any amount payable hereunder or
under any Bond remains unpaid:
SECTION 5.01. INFORMATION5.01. INFORMATION. The Parent 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 Parent 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;
(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 Parent, consolidated and
consolidating balance sheets of the Parent 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 Parent;
(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 C (a "Compliance Certificate"), of the
chief financial
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officer, treasurer or the chief accounting officer of the Parent (i)
setting forth in reasonable detail the calculations required to establish
whether the Parent 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 Parent is taking or propose to take with respect thereto (provided,
however, so long as the Credit Agreement is in effect and contains
substantially the same representations, warranties, covenants and events of
default as contained in this Agreement, the Parent may satisfy the
requirements of this paragraph (c) by providing the "Compliance
Certificate" in the form required under the Credit Agreement to the Agent
and the Banks);
(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 Parent becomes aware of
the occurrence of any Default, a certificate of the chief financial
officer, treasurer or the chief accounting officer of the Parent setting
forth the details thereof and the action which the Parent is taking or
proposes to take with respect thereto;
(f) within 5 Domestic Business Days after the mailing thereof to the
shareholders of the Parent 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
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S-8 or its equivalent) and annual, quarterly or monthly reports which the
Parent 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 Parent and its Subsidiaries as the
Agent, at the request of any Bank, may reasonably request.
SECTION 5.02. INSPECTION OF PROPERTY, BOOKS AND RECORDS5.02.
INSPECTION OF PROPERTY, BOOKS AND RECORDS. The Parent will (i) keep, and cause
each Subsidiary to keep, proper books of record and account in which full, true
and correct entries in conformity with GAAP shall be made of all dealings and
transactions in relation to its business and activities; and (ii) permit, and
cause each Subsidiary to permit, representatives of any Bank at such Bank's
expense prior to the occurrence of a Default and at the Parent'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
Parent 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.
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SECTION 5.03. RATIO OF ADJUSTED FUNDED DEBT TO CONSOLIDATED TOTAL
CAPITAL5.03. 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 WORTH5.04. 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 Parent, 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
DEBT5.05. RATIO OF CONSOLIDATED CASH FLOW TO CONSOLIDATED FUNDED DEBT. At the
end of each Fiscal Quarter, commencing with the Fiscal Quarter ending June 28,
1997, the Parent'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.
SECTION 5.06. INTENTIONALLY DELETED5.06. INTENTIONALLY DELETED.
SECTION 5.07. LOANS OR ADVANCES5.07. LOANS OR ADVANCES. Neither
the Parent nor any of its Subsidiaries shall make loans or advances to any
Person except: (i) loans or advances to employees not exceeding $5,000,000 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 and (iv) Secured Timber Loans not
exceeding $10,000,000 in the aggregate principal amount outstanding at any time;
PROVIDED that after
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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 Parent 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 Parent or such Subsidiary in the amount of any such
relevant loan.
SECTION 5.08. INVESTMENTS5.08. INVESTMENTS. Neither the Parent
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 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 Parent'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
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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 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 Parent shall not be deemed to be an
Investment by the Parent.
SECTION 5.08. NEGATIVE PLEDGE5.08. NEGATIVE PLEDGE. Neither the
Parent 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;
(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;
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(e) any Lien on any asset of any corporation existing at the time
such corporation is merged or consolidated with or into the Parent 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 Parent or a Consolidated Subsidiary and not created in contemplation
of such acquisition;
(g) Liens securing Debt owing by any Subsidiary to the Parent or any
Subsidiary;
(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 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
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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 EXISTENCE5.10. MAINTENANCE OF EXISTENCE.
Except as permitted by Section 5.11 or 5.12, the Parent 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. DISSOLUTION5.11. DISSOLUTION. Neither the Parent
nor any of its Subsidiaries shall suffer or permit dissolution or liquidation
either in whole or in part or purchase, repurchase, redeem, or retire any shares
of the stock of the Parent 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 ASSETS5.12.
CONSOLIDATIONS, MERGERS AND SALES OF ASSETS. The Parent will not, nor will it
permit any Subsidiary to, consolidate or merge with or into, or sell, lease or
otherwise transfer all or any substantial part of its assets (other than sales
of inventory in the ordinary course of business or the disposition of obsolete
equipment) to, any other Person, or
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discontinue or eliminate any material business line or segment, PROVIDED that:
(a) the Parent or any corporate Subsidiary of the Parent 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 Parent or any corporate Subsidiary
(except that the Parent shall be the remaining corporation upon a merger of a
Subsidiary with the Parent) 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 Parent may consolidate or
merge with or into or transfer assets to the Parent which is its parent or one
another; and (c) the Parent 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 PROCEEDS5.13. USE OF PROCEEDS. The proceeds
of the Bonds will be used by the Parent for general corporate purposes, and will
not be used by the Parent or any Subsidiary (i) in connection with, whether
directly or 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 TAXES5.14. COMPLIANCE
WITH LAWS; PAYMENT OF TAXES. (a) The Parent 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
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through appropriate proceedings. The Parent 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 Parent or any
Subsidiary, except liabilities being contested in good faith and against which
the Parent or Subsidiary will set up reserves in accordance with GAAP.
(b) The Parent shall not permit the aggregate complete or partial
withdrawal liability under Title IV of ERISA with respect to Multiemployer Plans
incurred by the Parent 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 Parent 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 Parent and members of the Controlled Group have paid
or as to which the Parent 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 Parent
shall obtain prompt written advice from independent actuarial consultants
supporting such determination. The Parent 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 the withdrawal liability of the
Parent 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 Parent receives the same.
SECTION 5.15. INSURANCE5.15. INSURANCE. The Parent will maintain,
and will cause each of its Subsidiaries to maintain (either in the Parent 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 YEAR5.16. CHANGE IN
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FISCAL YEAR. The Parent 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 Parent 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 PROPERTY5.17. MAINTENANCE OF PROPERTY.
The Parent 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 NOTICES5.18. ENVIRONMENTAL NOTICES.
Within 30 days after the Parent becomes aware thereof, the Parent 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.
SECTION 5.18. ENVIRONMENTAL MATTERS5.18. ENVIRONMENTAL MATTERS.
The Parent 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 RELEASE5.20. ENVIRONMENTAL RELEASE.
The Parent agrees that upon the occurrence of an Environmental Release for which
it or a
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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 DEBT5.21. OTHER DEBT. Should the Parent or
any Consolidated Subsidiary, while this Agreement is in effect or any Bond
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 Bond Documents, the Parent shall promptly so notify the
Agent and the Banks and, if the Agent shall so request by written notice to the
Parent (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 lender or
group of lenders than any of the provisions set forth herein are to the Banks),
the Parent, 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
Bond 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 Parent'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
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of June 29, 1994 to which the County of Perry, Kentucky, and the Parent are
parties.
SECTION 5.22. TRANSACTIONS WITH AFFILIATES5.22. TRANSACTIONS WITH
AFFILIATES. Neither the Parent nor any of its Subsidiaries shall enter into or
be a party to, any transaction with any Affiliate of the Parent or such
Subsidiary (which Affiliate is not the Parent 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 Parent 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; DELIVERY OF GUARANTIES OF
SUBSIDIARIESSECTION 5.23. DEBT OF SUBSIDIARIES; DELIVERY OF GUARANTIES OF
SUBSIDIARIES. (a) The Parent 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 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.
(b) If the Parent or any Subsidiary shall, at any time after the
Closing Date, (in addition to the Guarantor Subsidiaries signatories to this
Agreement below) acquire or create a Subsidiary which was not a Subsidiary on
the Closing Date, it shall cause such Subsidiary, within 30 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 counterpart to this Agreement pursuant to
which it becomes a "Guarantor", and (ii) an opinion of counsel substantially in
the form of EXHIBIT A-1 hereto with respect thereto. Notwithstanding the
foregoing, with respect to Subsidiaries created by the Parent or any Subsidiary
after the Closing Date, the Borrower is not required to provide the Agent and
the Banks with such a counterpart to this Agreement and the other items listed
in clause (ii) of this paragraph above so long
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as the aggregate value of the assets, valued at their GAAP book value, of all
Subsidiaries which are not Guarantor Subsidiaries does not exceed $10,000,000 at
any time. With respect to the Guarantor Subsidiaries incorporated in Canada, the
Parent agrees to deliver to the Agent opinions (in the form set forth in Section
3.01(c) for Guarantor Subsidiaries incorporated in the United States) on or
before the date which is 30 days after the Closing Date.
ARTICLE VI
DEFAULTS VI DEFAULTS
SECTION 6.01. EVENTS OF DEFAULT6.01 EVENTS OF DEFAULT. If one or
more of the following events ("Events of Default") shall have occurred and be
continuing:
(a) the Issuer (or the Parent, by virtue of payments due under the
Note) shall fail to pay when due any principal of any Bond or shall fail to
pay any interest on any Bond within 5 Domestic Business Days after such
interest shall become due, or the Issuer or the Parent shall fail to pay
any fee or other amount payable under the Bond Documents within 5 Domestic
Business Days after such fee or other amount becomes due; or
(b) any Guarantor shall fail to observe or perform or cause to be
performed 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 an
"Event of Default" shall have occurred and be continuing under the Credit
Agreement; or
(c) any Guarantor shall fail to observe or perform or cause to be
performed 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 Parent by the
Agent at the request of any Bank
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or (ii) the Parent otherwise becomes aware of any such failure; or
(d) any representation, warranty, certification or statement made by
any Guarantor in Article IV of this Agreement or by 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 Parent or any Subsidiary shall fail to make any payment in
respect of Debt outstanding in an aggregate amount equal to or exceeding
$5,000,000 (other than the Bonds) 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 Parent or any Subsidiary (including, without
limitation, any mandatory prepayment or "put" of such Debt to the Parent 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 Parent or
any Subsidiary); or
(g) the Parent 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
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(h) an involuntary case or other proceeding shall be commenced
against the Parent 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 Parent 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 Parent or any member of the
Controlled Group, singularly or in the aggregate, in excess of $5,000,000:
the Parent 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 Parent, 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
Parent or any Subsidiary and such judgment or order shall continue
unsatisfied and unstayed for a period of 30 days; or
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(k) a federal tax lien shall be filed against the Parent under
Section 6323 of the Code or a lien of the PBGC shall be filed against the
Parent 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 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
Parent (excluding any Person(s) who beneficially own the voting stock of
the Parent as of March 27, 1995); or (ii) as of any date a majority of the
Board of Directors of the Parent shall consist of individuals who were not
either (A) directors of the Parent as of the corresponding date of the
previous year, (B) selected or nominated to become directors by the Board
of Directors of the Parent 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 Parent of which a majority consisted of
individuals described in clause (A) and individuals described in clause
(B); or (iii) the Parent shall cease to serve as the General Partner of
Trus Joist MacMillan a Limited Partnership; or (iv) the Parent 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 Bond
Documents, (ii) any Bond Documents shall cease to be enforceable, (iii) any
Guarantor shall assert that any Bond Document shall cease to be
enforceable, or (iv) a "Default" or "Event of Default" shall occur under
any Bond Document.
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then, and in every such event, the Agent shall, if requested by the Required
Banks, by notice to the Parent demand payment of the Guaranteed Obligations from
the Guarantors and the same shall become immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by each Guarantor together with interest at the Default Rate
accruing on the principal amount thereof from and after the date of such Event
of Default; PROVIDED that if any Event of Default specified in paragraph (g) or
(h) above occurs with respect to any Guarantor, without any notice to the Parent
or any other act by the Agent or the Banks, the Guaranteed Obligations shall
become immediately due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Parent together with
interest at the Default Rate accruing on the principal amount thereof from and
after the date of such Event of Default. Notwithstanding the foregoing, the
Agent shall have available to it all other remedies at law or equity, and shall
exercise any one or all of them at the request of the Required Banks.
SECTION 6.02. NOTICE OF DEFAULT6.02. NOTICE OF DEFAULT. The Agent
shall give notice to the Parent 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 AGENTVII THE AGENT
SECTION 7.01. APPOINTMENT; POWERS AND IMMUNITIES7.01. APPOINTMENT;
POWERS AND IMMUNITIES. Each Bank hereby irrevocably appoints and authorizes the
Agent to act as its agent hereunder and under the other Bond 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 Bond Documents, and shall not by reason of
this Agreement or any other Bond Document be a trustee for any Bank; (b) shall
not be responsible to the Banks for any recitals, statements, representations or
warranties
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contained in this Agreement or any other Bond 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 Bond Document, or for the validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Bond
Document or any other document referred to or provided for herein or therein or
for any failure by the Parent 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 Bond 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 Bond Document or any
other document or instrument referred to or provided for herein or therein or in
connection herewith or therewith, except for its own gross negligence or wilful
misconduct. The Agent may employ agents and attorneys-in-fact and shall not be
responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care. The provisions of this
Article VII are solely for the benefit of the Agent and the Banks, and the
Parent 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 Bond 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 Parent. 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 Bond Document a
fiduciary relationship in respect of any Bank.
SECTION 7.02. RELIANCE BY AGENT7.02. 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 Bond Document,
the
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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. DEFAULTS7.03. 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 Bonds) unless
the Agent has received notice from a Bank or the Parent specifying such
Default or Event of Default and stating that such notice is a "Notice of
Default". In the event that the Agent receives such a notice of the
occurrence of a Default or an Event of Default, the Agent shall give prompt
notice thereof to the Banks. The Agent shall give each Bank prompt notice of
each nonpayment of principal of or interest on the Bonds whether or not it
has received any notice of the occurrence of such nonpayment. The Agent shall
(subject to Section 8.06) 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 BANK7.04. RIGHTS OF AGENT AS A
BANK. With respect to the Bond purchased 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 Parent (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 Parent (in addition to any agency fees and
arrangement fees heretofore agreed to between the Parent and the Agent) for
services in connection with this Agreement or any other Bond Document or
otherwise without having to account for the same to the Banks.
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SECTION 7.05. INDEMNIFICATION7.05. INDEMNIFICATION. Each Bank
severally agrees to indemnify the Agent, to the extent the Agent shall not have
been reimbursed by the Parent, 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 Bond Document or any other
documents contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby (excluding, unless an Event of Default has
occurred and is continuing, the normal administrative costs and expenses
incident to the performance of its agency duties hereunder) or the enforcement
of any of the terms hereof or thereof or any such other documents; PROVIDED,
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 DAMAGES7.06. CONSEQUENTIAL DAMAGES.
THE AGENT SHALL NOT BE RESPONSIBLE OR LIABLE TO THE PARENT 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 BOND TREATED AS OWNER7.07. PAYEE OF BOND
TREATED AS OWNER. The Agent may deem and treat the payee of any Bond 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 8.08(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 Bond shall be conclusive and binding
on any subsequent holder, transferee or assignee of that Bond or of any Bond or
Bonds issued in exchange therefor or replacement thereof.
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SECTION 7.08. NONRELIANCE ON AGENT AND OTHER BANKS7.08.
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 Parent and decision to enter into the Bond Purchase 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 Bond Documents. The
Agent shall not be required to keep itself informed as to the performance or
observance by the Parent of this Agreement or any of the other Bond Documents or
any other document referred to or provided for herein or therein or to inspect
the properties or books of the Parent or any 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 Bond 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
Parent or any other Person (or any of their Affiliates) which may come into the
possession of the Agent.
SECTION 7.08. FAILURE TO ACT7.08. FAILURE TO ACT. Except for action
expressly required of the Agent hereunder or under the other Bond 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 AGENT7.10. 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 Parent 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
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successor 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
MISCELLANEOUSVIII MISCELLANEOUS
SECTION 8.01. NOTICES8.01. 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 8.01 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 8.01; PROVIDED that notices to the Agent
under Article II or Article VIII shall not be effective until received.
SECTION 8.02. NO WAIVERS8.02. NO WAIVERS. No
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failure or delay by the Agent or any Bank in exercising any right, power or
privilege hereunder or under any Bond or other Bond 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 8.03. EXPENSES; DOCUMENTARY TAXES8.03 EXPENSES;
DOCUMENTARY TAXES. The Parent 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 Bond
Documents. The Parent 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 Bond
Documents.
SECTION 8.04. INDEMNIFICATION8.04. INDEMNIFICATION. The Parent
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 Parent of
the proceeds of any extension of credit by any Bank hereunder or breach by the
Parent of this Agreement or any other Bond Document or from any investigation,
litigation (including, without limitation, any actions taken by the Agent or any
of the Banks to enforce this
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Agreement (except an enforcement action on which the Parent prevails on the
merits) or any of the other Bond Documents) or other proceeding (including,
without limitation, any threatened investigation or proceeding) relating to the
foregoing, and the Parent 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 8.05. SHARING OF SETOFFS8.05. 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 Bonds or the Guaranteed Obligations 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
Bond or the Guaranteed Obligations held by such other Bank, the Bank receiving
such proportionately greater payment shall purchase such participation in the
Bonds or the Guaranteed Obligations 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 Bonds or the
Guaranteed Obligations 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 Parent other than its indebtedness under the Bonds or the
Guaranteed Obligations, 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
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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 8.06. AMENDMENTS AND WAIVERS.06. AMENDMENTS AND WAIVERS.
(a) Any provision of this Agreement, the Bonds or any other Bond Documents may
be amended or waived if, but only if, such amendment or waiver is in writing and
is signed by the Parent 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) subject any Bank to any
additional obligation, (ii) change the principal of or rate of interest on any
Bond or any fees under any Bond Document, (iii) change the date fixed for any
payment of principal of or interest on any Bond, any Guaranteed Obligations 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 aggregate unpaid
principal amount of the Bonds, 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 Bonds, (vii) release or substitute
all or any substantial part of the collateral (if any) held as security for the
Bonds, or (viii) release any Guarantor; PROVIDED, FURTHER, that this Agreement
and any of the other Bond 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 Bond
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
Parent, the Agent, and the Majority Banks.
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(b) The Parent 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 Parent and shall be
afforded an opportunity of considering the same and shall be supplied by the
Parent 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 Parent to each Bank forthwith following the date on which the same shall
have been executed and delivered by the requisite percentage of Banks. The
Parent 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 8.07. NO MARGIN STOCK COLLATERAL8.07. 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 the Purchase Agreement.
SECTION 8.08. SUCCESSORS AND ASSIGNS8.08. 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 no Guarantor may assign or otherwise transfer any of its rights
under this Agreement. As set forth in the Bonds, any Bank may at any time sell
to one or more Persons (each a "Participant") participating interests in the
Bonds or assign a proportionate part of all of its Bonds and all of its rights
and obligations under this Agreement and the other Bond Documents, and such
Assignee shall assume all such rights and obligations, pursuant to the terms of
the Bonds.
(b) Subject to the provisions of Section 8.09, each
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<PAGE>
Guarantor authorizes the Agent and each Bank to disclose to any Participant,
Assignee or other transferee (each a "Transferee") and, with the Parent's
consent (which shall not be unreasonably withheld), any prospective Transferee
any and all financial information in such Bank's possession concerning the
Parent which has been delivered to such Bank by the Parent pursuant to this
Agreement or which has been delivered to such Bank by the Parent in connection
with such Bank's credit evaluation prior to entering into this Agreement.
(c) No Transferee shall be entitled to receive any greater payment
under the Bonds than the transferor Bank would have been entitled to receive
with respect to the rights transferred, unless such transfer is made with the
Parent's prior written consent or by reason of the provisions of the Bonds
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.
(d) Anything in this Section 8.08 to the contrary notwithstanding, any
Bank may assign and pledge all or any portion of the Bonds 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 Bonds made by the Parent to the
assigning and/or pledging Bank in accordance with the terms of this Agreement
shall satisfy the Parent's obligations hereunder in respect of such assigned
Bonds to the extent of such payment. No such assignment shall release the
assigning and/or pledging Bank from its obligations hereunder.
SECTION 8.08. CONFIDENTIALITY8.08. CONFIDENTIALITY. Each Bank agrees
to exercise its best efforts to keep any information delivered or made available
by the Parent 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 Bonds; PROVIDED, HOWEVER that nothing herein shall prevent
any Bank from
59
<PAGE>
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 8.09. The agreements and
obligations of the Banks contained in this Section 8.09 constitute a continuing
agreement and shall survive termination of this Agreement and the payment in
full of the Bonds.
SECTION 8.10. REPRESENTATION BY BANKS8.10. REPRESENTATION BY BANKS.
Each Bank hereby represents that it is a commercial lender or financial
institution which makes loans in the ordinary course of its business and that it
will purchase the Bonds for its own account in the ordinary course of such
business; PROVIDED, HOWEVER that, subject to Section 8.08, the disposition of
the Bonds held by that Bank shall at all times be within its exclusive control.
SECTION 8.11. OBLIGATIONS8.11. OBLIGATIONS. (a) The obligations
of each Bank hereunder and under the other Bond Documents are several, and no
Bank shall be responsible for the obligations of any other Bank hereunder or
thereunder. 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 under the Bonds and 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 the Bonds, this Agreement or any other Bond 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
60
<PAGE>
obligations of the Guarantors hereunder are joint and several.
SECTION 8.12. GEORGIA LAW8.12. GEORGIA LAW.12. This Agreement
shall be construed in accordance with and governed by the law of the State of
Georgia.
SECTION 8.13. INTERPRETATION8.13. INTERPRETATION. No provision of
this Agreement or any of the other Bond 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 8.14. WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION8.14.
WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION. EACH GUARANTOR 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 BOND DOCUMENTS, 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 BONDS AND THE OTHER BOND 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
BONDS OR THE OTHER BOND DOCUMENTS. EACH GUARANTOR AGREES THAT SERVICE OF
PROCESS MAY BE MADE UPON IT IN THE MANNER PRESCRIBED IN SECTION 8.01 FOR THE
GIVING OF NOTICE TO THE PARENT. NOTHING HEREIN CONTAINED, HOWEVER, SHALL
PREVENT THE AGENT FROM BRINGING ANY ACTION OR EXERCISING ANY RIGHTS AGAINST ANY
SECURITY AND AGAINST ANY GUARANTOR PERSONALLY, AND AGAINST ANY ASSETS OF ANY
GUARANTOR, WITHIN ANY OTHER STATE OR JURISDICTION.
SECTION 8.15. COUNTERPARTS8.15. 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.
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SECTION 8.16. SEVERABILITY; INCONSISTENCY WITH LOAN AGREEMENT.8.16.
SEVERABILITY; INCONSISTENCY WITH LOAN AGREEMENT. In case any one or more
of the provisions contained in this Agreement, the Bonds, or any of the other
Bond 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. With respect to any
representation, warranty, covenant or event of default contained in the Loan
Agreement relating to a Guarantor which is deemed inconsistent with a provision
of this Agreement, the provisions of this Agreement shall prevail.
SECTION 8.17. INTEREST.8.17. INTEREST. In no event shall the amount
of interest due or payable hereunder exceed the maximum rate of interest allowed
by applicable law, and in the event any such payment is inadvertently made to
any Bank by any Guarantor or inadvertently received by any Bank, then such
excess sum shall be credited as a payment of principal, unless such Guarantor
shall notify such Bank in writing that it elects to have such excess sum
returned forthwith. It is the express intent hereof that no Guarantor pay and
the Banks not receive, directly or indirectly in any manner whatsoever, interest
in excess of that which may legally be paid by such Guarantor under applicable
law.
62
<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/ Richard B. Drury
-------------------------------------
Title: Corporate Secretary
Address for Parent and each Guarantor
Subsidiary:
200 East Mallard
Boise, Idaho 83706
Attention: Richard B. Drury,
Corporate Secretary and Treasurer
Telecopier number: 208-364-3370
Confirmation number: 208-364-3322
TRUS JOIST MACMILLAN, A LIMITED
PARTNERSHIP, a Delaware limited
partnership (SEAL)
By: TJ International, Inc.
-------------------------------------
Its general partner
By: /s/ Richard B. Drury
-------------------------------------
Title: Corporate Secretary
63
<PAGE>
NORCO WINDOWS, INC., a Wisconsin
corporation (SEAL)
By: /s/ Richard B. Drury
-------------------------------------
Title: Corporate Secretary
TRUS JOIST MACMILLAN LIMITED, a Province
of British Columbia corporation
(successor to a merger with Trus Joist
MacMillan Nordel Limited) (SEAL)
By: /s/ Richard B. Drury
-------------------------------------
Title: Corporate Secretary
TRUS-JOIST (WESTERN) LTD., a Province of
New Brunswick corporation (SEAL)
By: /s/ Richard B. Drury
-------------------------------------
Title: Corporate Secretary
TJM FACILITIES CORPORATION, a Delaware
corporation (SEAL)
By: /s/ Richard B. Drury
-------------------------------------
Title: Corporate Secretary
64
<PAGE>
WACHOVIA BANK, N.A.,
as Agent and as a Bank (SEAL)
By: /s/ Bill F. Hamlet
-------------------------------------
Title: Senior Vice President
LENDING OFFICE
Wachovia Bank, 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, 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
65
<PAGE>
CIBC INC., as a Bank (SEAL)
By: /s/ R. A. Mendoza
-------------------------------------
Title: Director
Notice Address:
-------------------------------
-------------------------------
-------------------------------
66
<PAGE>
THE CHASE MANHATTAN BANK,
as a Bank (SEAL)
By: /s/ Helene Santo
-------------------------------------
Title: Vice President
Notice Address:
-------------------------------
-------------------------------
-------------------------------
67
<PAGE>
THE FIRST NATIONAL BANK OF CHICAGO,
as a Bank (SEAL)
By: /s/ Samuel Gentes
-------------------------------------
Title: Vice President
Notice Address:
-------------------------------
-------------------------------
-------------------------------
68
<PAGE>
THE BANK OF TOKYO-MITSUBISHI, LTD.,
as a Bank (SEAL)
By: /s/ David Purcell
-------------------------------------
Title: Vice President
Notice Address:
-------------------------------
-------------------------------
-------------------------------
69
<PAGE>
US BANK OF IDAHO,
as a Bank (SEAL)
By: /s/ James Heuhen
-------------------------------------
Title: Vice President
Notice Address:
-------------------------------
-------------------------------
-------------------------------
70
<PAGE>
EXHIBIT A
OPINION OF
COUNSEL FOR THE GUARANTORS(1)
[Dated as provided in Section 3.01 of the
Agreement]
To the Banks and the Agent
Referred to Below
c/o Wachovia Bank, N.A.,
as Agent
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Attn: U.S. Corporate Division
Dear Sirs:
We have acted as counsel for TJ INTERNATIONAL, INC., a Delaware corporation
(the "Parent"), in connection with the Bond Guaranty Agreement (the "Agreement")
and the other Guarantors (defined in the Agreement) dated as of September 30,
1997, among the Parent, the banks listed on the signature pages thereof and
Wachovia Bank, N.A., as Agent. Capitalized terms contained herein but not
defined herein shall have the meanings attributed thereto in the Agreement.
We have examined originals or copies, certified or otherwise identified to
our satisfaction, of such documents, corporate records, certificates of public
officials and other instruments and have conducted such other investigations of
fact and law as we have deemed necessary or advisable for purposes of this
opinion. We have assumed for purposes of our opinions set forth
- ----------------
(1) This opinion may be delivered separately by U.S. counsel for U.S.
Guarantors and by Canadian counsel for Canadian Guarantors.
71
<PAGE>
below that the execution and delivery of the Agreement and the other Bond
Documents by each Bank, the Agent and the Issuer and the execution and delivery
of the Agreement and other Bond Documents by Guarantors created and existing
under Canadian laws, have been duly authorized by each Bank, the Agent, the
Issuer and each such Guarantor.
Upon the basis of the foregoing, we are of the opinion that:
1. The Parent is a corporation duly incorporated, validly existing
and in good standing under the laws of Delaware and has all corporate powers
required to carry on its business as now conducted.
2. Each of the Guarantors (except Trus Joist MacMillan a Limited
Partnership) is a corporation duly incorporated, validly existing and in good
standing under the laws of the respective state of its incorporation and has all
corporate powers required to carry on its business as now conducted. Trus Joist
MacMillan a Limited Partnership is a limited partnership, duly formed under the
laws of the State of Delaware and has all partnership powers required to carry
on its business as now conducted.
3. The execution, delivery and performance by each Guarantor (other
than Trus Joist MacMillan a Limited Partnership) of the Agreement, the Bonds,
and the other Bond Documents to which it is a party (i) are within its 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 its certificates of
incorporation or by-laws or of any agreement, judgment, injunction, order,
decree or other instrument which to our knowledge is binding upon it and (v) to
our knowledge, do not result in the creation or imposition of any Lien on any
asset of any Guarantors.
4. The execution, delivery and performance by Trus Joist MacMillan a
Limited Partnership of the Agreement and each of the other Bond Documents to
which it is a party (i) are within its partnership powers, (ii) have been duly
authorized by all necessary partnership actions, (iii) require no action by or
in respect of, or
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<PAGE>
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 its respective partnership agreements or of any agreement, judgment,
injunction, order, decree, or other instrument which to our knowledge is binding
upon it, and (v) to our knowledge, do not result in the creation or imposition
of any Lien or any of its assets.
5. The Agreement constitutes a valid and binding agreement of each
Guarantor, enforceable against each Guarantor in accordance with its terms, and
the other Bond Documents executed by it constitute its valid and binding
obligations, enforceable in accordance with their respective terms, except as
such enforceability may be limited by: (i) bankruptcy, insolvency or similar
laws affecting the enforcement of creditors' rights generally and (ii) general
principles of equity.
6. To our knowledge, there is no action, suit or proceeding pending,
or threatened, against or affecting the Guarantors before any court or
arbitrator or any governmental body, agency or official in which there is a
reasonable probability of an adverse decision which could materially adversely
affect the business, consolidated financial position or consolidated results of
operations of the Guarantors, considered as a whole, or which in any manner
questions the validity or enforceability of the Agreement, or any other Bond
Document.
7. The Parent has no Subsidiaries incorporated or formed under the
laws of the United States or any state which are not Guarantors.
8. Neither the Parent nor any of the other Guarantors is an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
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9. Neither the Parent nor any of the other Guarantors 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.
10. Under the laws of the State of Idaho, the choice of the laws of
the State of Georgia to govern the enforcement and interpretation of the
Agreement and the other Bond Documents is enforceable.
[Insert appropriate qualifications]
This opinion is delivered to you in connection with the transaction
referenced above and may only be relied upon by you, any Assignee, Participant
or other Transferee under the Agreement, without our prior written consent.
Very truly yours,
74
<PAGE>
EXHIBIT B
OPINION OF
COUNSEL FOR THE ISSUER
[to be added]
75
<PAGE>
EXHIBIT C
COMPLIANCE CERTIFICATE
Reference is made to the Bond Guaranty Agreement dated as of September
30, 1997 (as amended and supplemented and in effect from time to time, the
"Agreement") among TJ International, Inc., Banks from time to time parties
thereto, and Wachovia Bank, N.A., as Agent. Capitalized terms used herein shall
have the meanings ascribed thereto in the Agreement.
Pursuant to Section 5.01(c) of the Agreement, __________, the duly
authorized _____________ of TJ International, Inc., hereby (i) certifies to the
Agent and the Banks that the information contained in the Compliance Check List
attached hereto is true, accurate and complete as of ______, 199__, and that no
Defaults or Events of Default exist and (ii) restates and reaffirms that the
representations and warranties contained in Article IV of the Agreement are true
on and as of the date hereof as though restated on and as of this date.
TJ INTERNATIONAL, INC.
By:
---------------------------
Title:
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<PAGE>
COMPLIANCE CHECK LIST
TJ International, Inc.
-----------------------------
________, 199__
1. Ratio of Adjusted Funded Debt to Consolidated Total Capital (Section 5.03)
Consolidated Funded Debt will not at any time exceed 55% Consolidated Total
Capital.
(a) Adjusted Funded Debt Schedule - 4 $__________
(b) Consolidated Net Worth $__________
(c) sum of (a) PLUS (b) $__________
Actual Ratio of (a) to (c) __________
Maximum Ratio LESS THAN OR EQUAL TO 0.55 to 1.0
2. Consolidated Tangible Net Worth (Section 5.04)
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 Parent, 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.
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(a) Initial Consolidated Tangible
Net Worth $320,000,000
(b) 50% of Consolidated Net Income
for immediately preceding Fiscal
Quarters ending after December 31, 1996
$_________
(c) 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
Parent, in each case received during any period after the Closing Date
$_________
(d) 66-2/3rds% of any net additions to
capital resulting from the
conversion of convertible
subordinated debentures $__________
Consolidated Tangible Net Worth Schedule - 1 $__________
Required (sum of (a) PLUS (b)
PLUS (c) PLUS (d)) $__________
3. Ratio of Consolidated Cash Flow to Consolidated Funded Debt (Section 5.05)
At the end of each Fiscal Quarter, commencing with the Fiscal Quarter
ending June 28, 1997, the Parent'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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<PAGE>
(a) Consolidated Cash Flow Schedule - 5 $__________
(b) Consolidated Funded Debt Schedule - 4 $__________
Actual Ratio of (a) to (b) __________
Required Ratio GREATER THAN OR EQUAL TO 0.20 to 1.0
4. Intentionally Deleted
5. Loans and Advances (Section 5.07)
Neither the Parent nor any of its Subsidiaries shall make loans or advances
to any Person except: (i) loans or advances to employees not exceeding
$5,000,000 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 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 Parent 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 Parent or such Subsidiary in the
amount of any such relevant loan.
(a) To Employees $__________
Limitation $5,000,000
(b) Utility, Governmental and
other Deposits $__________
Limitation None
(c) Loans to Guarantors $__________
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<PAGE>
Limitation None
(d) Secured Timber Loans $__________
Limitation $10,000,000
6. SALES OF ASSETS (Section 5.12(c))
The Parent 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, segment, PROVIDED that: . . . and (c) the Parent 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) 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.
1. Transfers and dispositions of assets (or stock) related to
Fenestration Products Business.
[DESCRIBE ANY SUCH TRANSFERS SINCE LAST COMPLIANCE CERTIFICATE.]
2. Other transfers
(a) [DESCRIBE TRANSFERS SINCE LAST
COMPLIANCE CERTIFICATE] $__________
(b) cumulative of all such transfers $__________
since Closing Date
Limitation(2) $__________
- --------------------
(2)insert amount equal to 5% of Consolidated Tangible Net Worth on
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7. DEBT OF SUBSIDIARIES (Section 5.23)
The Parent 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.
The Subsidiaries have no Debt except for:
-------------------------
-------------------------
-------------------------
-------------------------
- -----------------------------------------------------------------------------
Closing Date
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<PAGE>
SCHEDULE - 1
CONSOLIDATED TANGIBLE NET WORTH
Stockholders' Equity $___________
Less:
Surplus from write-up of assets subsequent
to ______________ $___________
Intangibles $___________
Bonds to stockholders, directors
officers or employees $___________
Capital Stock shown as assets $___________
Consolidated Tangible Net Worth $___________
___________
INTANGIBLES DESCRIPTION
(a) ----- $___________
(b) ----- $___________
(c) ----- $___________
Other $___________
Total $___________
___________
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SCHEDULE - 2
CONSOLIDATED FUNDED DEBT
INTEREST
RATE MATURITY TOTAL
SECURED
_____________________________ $__________
_____________________________ $__________
_____________________________ $__________
_____________________________ $__________
Total Secured $__________
UNSECURED
_____________________________ $__________
_____________________________ $__________
_____________________________ $__________
_____________________________ $__________
Total Unsecured ________________ $__________
GUARANTEES
_____________________________ $__________
_____________________________ $__________
Total $__________
Redeemable Preferred Stock _______________________________ $__________
Total $__________
OTHER FUNDED DEBT
_____________________________ $__________
_____________________________ $__________
_____________________________ $__________
Total Consolidated Funded Debt $_______________
_______________
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SCHEDULE - 3
CONSOLIDATED CASH FLOW
(12 month period ended
________, 19__)
(a) Consolidated Net Income $__________
(b) depreciation $__________
(c) amortization $__________
(d) other non-cash charges $__________
(e) increase in deferred taxes $__________
(decrease in deferred taxes) ($__________)
Total $__________
__________
DESCRIPTION OF OTHER NON-CASH CHARGES:
- ----------------------------------------------------------
- ----------------------------------------------------------
- ----------------------------------------------------------
- ----------------------------------------------------------
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EXHIBIT D
TJ INTERNATIONAL, INC.
CLOSING CERTIFICATE
Reference is made to the Bond Guaranty Agreement (the "Agreement") dated as
of September 30, 1997, among TJ International, Inc., the Banks listed therein,
and Wachovia Bank, N.A., as Agent. Capitalized terms used herein have the
meanings ascribed thereto in the Agreement.
Pursuant to Section 3.01(e) of the Agreement, _______________, the duly
authorized _____________ hereby certifies to the Agent and the Banks that (i) no
Default has occurred and is continuing as of the date hereof, and (ii) the
representations and warranties contained in Article IV of the Agreement are true
on and as of the date hereof.
Certified as of this ____ day of September, 1997.
By:
---------------------------
Printed Name:
--------------
Title:
--------------------
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<PAGE>
SCHEDULE 4.06
ERISA INFORMATION
NONE.
86
<PAGE>
SCHEDULE 4.08
SUBSIDIARIES
Jurisdiction of
NAME Incorporation
---- ---------------
Norco Windows, Inc. Wisconsin
Trus Joist MacMillan
a Limited Partnership Delaware
Trus Joist Corporation Delaware
Trus Joist MacMillan Limited British Columbia
Trus-Joist (Western) Ltd. New Brunswick
87
<PAGE>
SCHEDULE 4.13
ENVIRONMENTAL MATTERS
[to be completed by Parent]
88
<PAGE>
SCHEDULE 5.12
FENESTRATION PRODUCTS BUSINESSES
None.
89
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS DATA SCHEDULE CONTAINS FINANCIAL INFORMATION EXTRACTED FROM THE TJ
INTERNATIONAL INC. BALANCE SHEET AT SEPT. 27TH, 1997 AND FROM ITS STATEMENT OF
INCOME FOR THE NINE MONTHS ENDED SEPT. 27, 1997. THE INFORMATION PRESENTED
IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-29-1996
<PERIOD-START> DEC-31-1996
<PERIOD-END> SEP-27-1997
<CASH> 96,771
<SECURITIES> 0
<RECEIVABLES> 78,758
<ALLOWANCES> 400
<INVENTORY> 54,739
<CURRENT-ASSETS> 241,313
<PP&E> 591,523
<DEPRECIATION> 212,837
<TOTAL-ASSETS> 664,764
<CURRENT-LIABILITIES> 93,214
<BONDS> 99,790
0
13,584
<COMMON> 17,765
<OTHER-SE> 202,534
<TOTAL-LIABILITY-AND-EQUITY> 664,764
<SALES> 532,569
<TOTAL-REVENUES> 532,569
<CGS> 386,051
<TOTAL-COSTS> 386,051
<OTHER-EXPENSES> 79,778
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 4,709
<INCOME-PRETAX> 34,417
<INCOME-TAX> 12,907
<INCOME-CONTINUING> 21,510
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 21,510
<EPS-PRIMARY> 1.18
<EPS-DILUTED> 1.12
</TABLE>
