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<SEC-DOCUMENT>0001047469-98-011493.txt : 19980326
<SEC-HEADER>0001047469-98-011493.hdr.sgml : 19980326
ACCESSION NUMBER: 0001047469-98-011493
CONFORMED SUBMISSION TYPE: 10-K
PUBLIC DOCUMENT COUNT: 14
CONFORMED PERIOD OF REPORT: 19971231
FILED AS OF DATE: 19980325
SROS: NASD
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: AFTERMARKET TECHNOLOGY CORP
CENTRAL INDEX KEY: 0000933405
STANDARD INDUSTRIAL CLASSIFICATION: MOTOR VEHICLE PARTS & ACCESSORIES [3714]
IRS NUMBER: 954486486
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: 10-K
SEC ACT:
SEC FILE NUMBER: 000-21803
FILM NUMBER: 98573430
BUSINESS ADDRESS:
STREET 1: 900 OALMONT LANE SUITE 100
CITY: WESTMONT
STATE: IL
ZIP: 60559
BUSINESS PHONE: 6304556000
MAIL ADDRESS:
STREET 1: 900 OAKMONT LANE SUITE 100
CITY: WESTMONT
STATE: IL
ZIP: 60559
</SEC-HEADER>
<DOCUMENT>
<TYPE>10-K
<SEQUENCE>1
<DESCRIPTION>10-K
<TEXT>
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
(Mark One)
/X/ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 1997
OR
/ / TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
COMMISSION FILE NUMBER 0-21803
---------------------------------
AFTERMARKET TECHNOLOGY CORP.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 95-4486486
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
900 OAKMONT LANE, SUITE 100
WESTMONT, IL 60559
(Address of Principal Executive Offices) (Zip Code)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (630) 455-6000
SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT: NONE
SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT: COMMON
STOCK, $.01 PAR VALUE
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes /X/ No / /
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of Registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. / /
The aggregate market value of the voting stock held by non-affiliates of
the Registrant (based on the closing price of such stock, as reported by The
Nasdaq National Market, on February 27, 1998) was $205 million.
The number of shares outstanding of the Registrant's Common Stock, as of
February 27, 1998, was 19,868,296 shares.
DOCUMENTS INCORPORATED BY REFERENCE
None.
<PAGE>
AFTERMARKET TECHNOLOGY CORP.
ANNUAL REPORT ON FORM 10-K
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1997
Page
ITEM 1. BUSINESS. . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ITEM 2. PROPERTIES. . . . . . . . . . . . . . . . . . . . . . . . . . 13
ITEM 3. LEGAL PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . . 15
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS . . . . . 15
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED
STOCKHOLDER MATTERS . . . . . . . . . . . . . . . . . . . . . 16
ITEM 6. SELECTED FINANCIAL DATA . . . . . . . . . . . . . . . . . . . 17
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS . . . . . . . . . . . . . 19
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA . . . . . . . . . 25
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS
ON ACCOUNTING AND FINANCIAL DISCLOSURE. . . . . . . . . . . . 44
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT. . . . . . 44
ITEM 11. EXECUTIVE COMPENSATION. . . . . . . . . . . . . . . . . . . . 47
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS
AND MANAGEMENT. . . . . . . . . . . . . . . . . . . . . . . . 51
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS. . . . . . . . 53
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES,
AND REPORTS ON FORM 8-K . . . . . . . . . . . . . . . . . . . 56
i
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FORWARD LOOKING STATEMENT NOTICE
Certain statements contained in this Annual Report that are not related
to historical results are forward-looking statements. Actual results may
differ materially from those projected or implied in the forward-looking
statements. Factors that could cause or contribute to such differences
include, but are not limited to, those discussed under Item 1.
"Business--Certain Factors Affecting the Company" and Item 7. "Management's
Discussion and Analysis of Financial Condition and Results of Operations."
Further, certain forward-looking statements are based upon assumptions as to
future events that may not prove to be accurate.
PART I
ITEM 1. BUSINESS
BACKGROUND
Aftermarket Technology Corp. ("ATC") was incorporated under the laws of
Delaware in July 1994 at the direction of Aurora Capital Partners L.P.
("ACP") to acquire Aaron's Automotive Products, Inc. ("Aaron's"), H.T.P.,
Inc. ("HTP"), Mamco Converters, Inc. ("Mamco") and RPM Merit, Inc. ("RPM")
(collectively, the "Initial Acquisitions"). Aaron's, HTP, Mamco and RPM as
they existed prior to the Initial Acquisitions are hereinafter collectively
referred to as the "Predecessor Companies." Subsequent to the Initial
Acquisitions, the Company acquired Component Remanufacturing Specialists,
Inc. ("CRS") and Mascot Truck Parts Inc. ("Mascot") in June 1995, and
King-O-Matic Industries Limited ("King-O-Matic") in September 1995
(collectively, the "1995 Acquisitions"), Tranzparts, Inc. ("Tranzparts") in
April 1996 and Diverco, Inc. ("Diverco") in October 1996 (collectively, the
"1996 Acquisitions"), Replacement and Exchange Parts Co., Inc. ("REPCO") in
January 1997, ATS Remanufacturing ("ATS") in July 1997, Trans Mart, Inc.
("Trans Mart") in August 1997 and the Metran companies (Metran Automatic
Transmission Parts Corp., Metran Boston, Inc. and Metran Parts of
Pennsylvania, Inc.) ("Metran") in November 1997 (collectively, the "1997
Acquisitions"), and the OEM Division ("Autocraft") of Fred Jones Enterprises,
Inc. (formerly known as Autocraft Industries, Inc.) in March 1998 (the
"Autocraft Acquisition" and, together with the Initial Acquisitions, the 1995
Acquisitions, the 1996 Acquisitions and the 1997 Acquisitions, the
"Acquisitions"). ATC conducts all of its operations through its wholly-owned
subsidiaries and each of their respective subsidiaries. Throughout this
Annual Report, except where the context otherwise requires, the "Company"
refers collectively to ATC and its subsidiaries and the Predecessor
Companies.
On December 20, 1996, ATC consummated an initial public offering of its
Common Stock (the "IPO"). Simultaneous with the consummation of the IPO,
Aftermarket Technology Holdings Corp. ("Holdings"), the sole stockholder of
ATC prior to the IPO, was merged into ATC (the "Reorganization"). Upon the
effectiveness of the Reorganization, each outstanding share of Holdings
Common Stock was converted into one share of ATC Common Stock, and each
outstanding share of Holdings Redeemable Exchangeable Cumulative Preferred
Stock was converted into one share of ATC Redeemable Exchangeable Cumulative
Preferred Stock, which was immediately thereafter redeemed for an amount in
cash equal to $100.00 plus an amount in cash equal to accrued and unpaid
dividends on the Holdings Preferred Stock to the date of the Reorganization.
GENERAL
The Company is a leading remanufacturer and distributor of drive train
products used in the repair of vehicles in the automotive aftermarket. The
Company's principal products include remanufactured transmissions, torque
converters and engines, as well as remanufactured and new parts for the
repair of automotive drive train assemblies. The Company's two primary
customer groups are: original equipment manufacturers ("OEMs"), principally
Chrysler Corporation, which purchase remanufactured transmissions and other
remanufactured drive train components for use as replacement parts by their
dealers primarily during the warranty period following the sale of a vehicle;
and independent transmission rebuilders, general repair shops, distributors
and retail automotive parts stores (the "Independent Aftermarket"), which
purchase remanufactured torque converters and engines and other
remanufactured and new parts for repairs generally during the period
following the expiration of the vehicle warranty. As a result of recent
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acquisitions, the Company's OEM customers now also include Ford Motor
Company, General Motors Corporation and certain European OEMs and its
products now include electronic control modules, instrument display clusters,
cellular telephones and radios.
Since the Initial Acquisitions, the Company has grown both internally
and through ten additional acquisitions. The Company and the Predecessor
Companies have achieved compound annual growth in revenue of approximately
35.7% from 1992 through 1997 (including both internal growth and growth
through acquisitions). The Company believes the key elements of its success
are the quality and breadth of its product offerings and the Company's
emphasis on strong customer relationships, promoted by strong technical
support, rapid delivery time, innovative product development and competitive
pricing. In addition, the Company has benefited from the increasing use of
remanufactured products as the industry recognizes that remanufacturing
provides a higher quality, lower cost alternative to rebuilding the assembly
or replacing it with a new assembly manufactured by an OEM.
The Company's strategy is to achieve growth both internally and through
strategic acquisitions. The Company intends to expand its business by: (i)
increasing penetration of its current customer base; (ii) gaining new OEM and
Independent Aftermarket customers; and (iii) introducing new products to both
existing and new customers. The Company plans to continue to support these
growth strategies through strategic acquisitions in the future. In addition,
the Company believes that its core competency of remanufacturing, which has
been applied to the drive train products segment of the automotive
aftermarket, has the potential to be utilized in other aftermarket segments.
Therefore, the Company is conducting selective market studies to explore
possible additional markets for its remanufacturing capabilities.
See "Certain Factors Affecting the Company."
AUTOMOTIVE AFTERMARKET
The automotive aftermarket in the United States and Canada, which
consists of sales of parts and services for vehicles after their original
purchase, has been noncyclical and has generally experienced steady growth
over the past several years, unlike the market for new vehicle sales.
According to the Automotive Parts & Accessories Association, between 1988 and
1997 (the most recent period for which data is available), estimated
industry-wide revenue for the automobile aftermarket increased from
approximately $99.2 billion to $151.2 billion. This consistent growth is due
principally to the increase in the number of vehicles in operation, the
increase in the average age of vehicles, and the increase in the average
number of miles driven annually per vehicle. The Company competes primarily
in the aftermarket segment for automotive transmissions, engines and other
drive train related products, which represents more than $7 billion of the
entire automotive aftermarket. The Company believes that within this segment
the market for remanufactured drive train products has grown faster than the
overall automotive aftermarket.
REMANUFACTURING
Remanufacturing is a process through which used assemblies are returned
to a central facility where they are disassembled and their component parts
cleaned, refurbished and tested. The usable component parts are then
combined with new parts in a high volume, precision assembly line
manufacturing process to create remanufactured assemblies.
When an assembly such as a transmission or engine fails, there are
generally three alternatives available to return the vehicle to operating
condition. The dealer or independent repair shop may: (i) remove the
assembly, disassemble it into its component pieces, replace worn or broken
parts with remanufactured or new components, and reinstall the assembly in
the vehicle ("rebuild"); (ii) replace the assembly with an assembly from a
remanufacturer such as the Company; or (iii) in rare instances, replace the
assembly with a new assembly manufactured by the OEM.
In its remanufacturing operations, the Company obtains used
transmissions, hard parts, engines and related components, commonly known as
"cores," which are sorted by make and model and either placed into immediate
production or stored until needed. In the remanufacturing process, the cores
are evaluated and disassembled into their component parts and the components
that can be incorporated into the remanufactured product are cleaned,
refurbished
2
<PAGE>
and tested. All components determined not reusable or repairable
are replaced by other remanufactured or new components. The units are then
reassembled into finished assemblies. Inspection and testing are conducted
at various stages of the remanufacturing process, and each finished assembly
is tested on equipment designed to simulate performance under operating
conditions. After testing, completed products are then packaged for
immediate delivery or shipped to one of the Company's distribution centers.
The cores used in the Company's remanufacturing process for sale to its
OEM customers are provided by the OEMs. In the case of OEMs other than
Chrysler, the dealers return cores to the OEM, which then ships them to the
Company. Chrysler cores are sent to the Company through its central core
return center. See "Customers--OEM Customers."
The majority of the cores used in the Company's remanufacturing process
for sale to its Independent Aftermarket customers are obtained from customers
as trade-ins. The Company encourages its Independent Aftermarket customers
to return cores on a timely basis and charges customers a supplemental core
charge in connection with purchases of engines and critical hard parts. The
customer can satisfy this charge by returning a usable core or making a cash
payment equal to the amount of the supplemental core charge. If cores are
not returned in a timely manner, the Company then must procure cores through
its network of independent core brokers. While core prices are subject to
supply and demand price volatility, the Company believes its procurement
network for cores will continue to provide cores at reasonable prices.
There are three primary benefits of using remanufactured components
rather than rebuilt or new components in repair of vehicles:
- - First, costs to the OEM associated with remanufactured assemblies generally
are 50% less than new or rebuilt assemblies due to the remanufacturer's use
of high volume manufacturing techniques and salvage methods that enable the
remanufacturer to refurbish and reuse a high percentage of original
components.
- - Second, remanufactured assemblies are generally of consistent high quality
compared to rebuilt assemblies because of the precision manufacturing
techniques, technical upgrades and rigorous inspection and testing
procedures employed in remanufacturing. In contrast, the quality of a
rebuilt assembly is heavily dependent on the skill level of the particular
mechanic, who typically is less able to remain current with engineering
changes than remanufacturers, who work in close liaison with OEM engineers.
In addition, the proliferation of transmission and engine designs, the
increasing complexity of transmissions and engines that incorporate
electronic components and the shortage of highly trained mechanics
qualified to rebuild assemblies have tended to favor remanufacturing over
rebuilding assemblies for aftermarket repairs. For warranty repairs,
consistent quality is important to the OEM providing the applicable
warranty, because once installed, the remanufactured product is usually
covered by the OEM's warranty for the balance of the original warranty
period.
- - Third, replacement of a component with a remanufactured component generally
takes considerably less time than the time needed to rebuild the component,
thereby significantly reducing the time the vehicle is at the dealer or
repair shop.
The Company believes that because of this combination of high quality, low
cost and efficiency, the use of remanufactured assemblies for aftermarket
repairs is growing compared to the use of new or rebuilt assemblies. Although
the primary customers for the Company's remanufactured components have
historically been OEMs, the Company expects the Independent Aftermarket to
increase its use of remanufactured components in the future.
PRODUCTS
The principal product lines of the Company are remanufactured
transmissions, repair kits and hard parts used in drive train repairs, and
remanufactured engines. Following the Autocraft Acquisition, the Company also
remanufactures electronic control modules, instrument display clusters, cellular
telephones and radios.
3
<PAGE>
REMANUFACTURED TRANSMISSIONS
The Company remanufactures transmissions that are factory approved and
suitable for warranty and post-warranty replacement of transmissions for
Chrysler, Ford, General Motors and 12 foreign OEMs, including Hyundai Motor
America, Mitsubishi and American Isuzu, for their United States dealer networks.
The number of transmission models remanufactured by the Company has been
increasing to accommodate the greater number of models currently used in
vehicles manufactured by the Company's OEM customers.
In addition, the Company rebuilds heavy duty and medium duty truck
transmissions, differentials and air compressors for truck manufacturers such as
Navistar, Freightliner and Western Star. These assemblies are sold primarily to
truck dealers in Canada.
REPAIR KITS AND HARD PARTS
Repair kits sold by the Company consist of gaskets, friction plates,
seals, bands, filters, clutch components and other "soft" parts that are used
in rebuilding transmissions for substantially all domestic and most imported
passenger cars and light trucks. Kits are currently sold principally to the
Independent Aftermarket. Each kit is designed specifically to include
substantially all of the soft parts necessary for rebuilding a particular
transmission model. Due to its high volume of kit sales, the Company
maintains a variety of supply relationships that enable the Company to
purchase components for its kits at prices that the Company believes are more
favorable than those available to its lower volume competitors. The Company
also believes that its remanufacturing of some of the parts used in its kits
gives it an additional pricing advantage over some of its competitors who
purchase all their parts from suppliers.
The Company remanufactures torque converters (the coupler between the
transmission and engine), planetary gears (speed regulating devices inside
the transmission) and transmission fluid pumps. These "hard" parts are sold
principally to the Independent Aftermarket for use in drive train repairs.
Many of the Company's competitors do not distribute as broad a line of hard
parts or remanufacture the hard parts that they distribute. The Company
believes these factors provide it both an availability and cost advantage
over many of its competitors.
The Company's Independent Aftermarket customers typically require both
repair kits and hard parts in order to complete a vehicle repair. For this
reason, the Company believes that the breadth of its product line, which
enables a customer to obtain all the parts for a repair job from a single
source, gives the Company a competitive advantage.
REMANUFACTURED ENGINES
The Company remanufactures engines for use as replacement engines in
many domestic passenger cars and light trucks. Principal customers include
Western Auto, as well as general repair garages and distributors. Over the
past four years, the variety of engine models remanufactured by the Company
has increased from 50 to 77 as the Company has expanded the range of engines
offered to meet customer requirements. In addition, the Company obtains
remanufactured engines for many foreign passenger cars and light trucks from
independent suppliers.
The Company began remanufacturing selected engine models for Chrysler in
1997 and through the Autocraft Acquisition the Company now also operates a
facility in England that remanufactures engines that are factory approved and
suitable for warranty and post-warranty replacement of engines for seven
European OEMs, including Jaguar and the European divisions of Ford and
General Motors This facility also does assembly and modification of new
production engines for certain of its OEM customers.
ELECTRONIC COMPONENTS
Through the Autocraft Acquisition, the Company now also remanufactures
automotive electronic control modules (which manage various engine
functions), instrument display clusters, cellular telephones and radios for
Ford, General Motors, Audi, Jaguar and Volkswagen. In addition, Autocraft
provides warehouse and distribution services for AT&T Wireless, the cellular
telephone subsidiary of AT&T, and recently began remanufacturing cellular
telephones on a limited basis for AT&T Wireless.
4
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CUSTOMERS
The Company's customers are Chrysler, Ford, General Motors and 18
foreign OEMs, and the Independent Aftermarket, which includes independent
transmission rebuilders, general repair shops, distributors and retail
automotive parts stores.
OEM CUSTOMERS
The Company provides factory-approved remanufactured transmissions to
OEMs for use in warranty and, to a lesser extent, post-warranty repair work
by their dealers. The Company's largest OEM customer is Chrysler, to whom
the Company also supplies certain factory-approved remanufactured engines.
The Company sells remanufactured transmissions to 12 foreign OEMs, including
Hyundai Motor America, Mitsubishi and American Isuzu. The Company added
General Motors as a customer in July 1997 with the purchase of ATS and
expanded its General Motors business with the acquisition of Autocraft. As a
result of the Autocraft Acquisition, the Company has begun to provide
factory-approved remanufactured components to several new OEM customers
including transmissions to Ford, electronic components to Ford, General
Motors, Audi, Jaguar and Vokswagen, and engines to Jaguar, Land Rover, Aston
Martin and the European divisions of Ford and General Motors. Products are
sold to each OEM pursuant to supply arrangements for individual transmission
or engine models, which supply arrangements typically may be terminated by
the OEM at any time.
Sales to the Company's OEM customers accounted for 51.9% of the
Company's 1996 revenues and 46.9% of its 1997 revenues. Sales to Chrysler
accounted for 37.2% and 32.0% of the Company's revenues in 1996 and 1997,
respectively. On a pro forma basis as if the Autocraft Acquisition had
occurred on January 1, 1997, sales to OEM customers would have accounted for
approximately 55% of pro forma 1997 revenues with sales to Chrysler and Ford
accounting for approximately 20% and 15%, respectively, of the total pro
forma revenues.
Over the past 15 years, the Company has developed and maintained strong
relationships at many levels of both the corporate and the factory
organizations of Chrysler. In recognition of the Company's consistently high
level of service and product quality throughout its relationship with
Chrysler, in each of 1995, 1996 and 1997 the Company was awarded the Platinum
Pentastar award, the highest award Chrysler bestows on a supplier. The
Company is one of only seven of Chrysler's approximately 3,500 suppliers to
receive the Platinum Pentastar every year since the creation of the award,
and the Company remains the only exclusively MOPAR aftermarket supplier to
ever be awarded the Platinum Pentastar.
In August 1997, the Company's facilities that remanufacture
transmissions for Chrysler and General Motors received QS-9000 certification,
a complete quality management system developed for Chrysler, Ford, General
Motors and truck manufacturers who subscribe to the ISO 9002 quality
standards. The system is designed to help suppliers such as the Company
develop a quality system that emphasizes defect prevention and continuous
improvement in manufacturing processes. The Company's facility that
remanufactures heavy and medium duty truck transmission received ISO 9002
certification in November 1997. In addition, with the Company's recent
acquisition of Autocraft, several of these newly acquired facilities received
QS-9000 and ISO 9002 certifications in 1997. Certain of Autocraft's
facilities have also received Ford's Q1 quality certification.
Chrysler began implementing remanufacturing programs for its
transmission models in 1986 and selected the Company as its sole supplier of
remanufactured transmissions in 1989. Chrysler has advised the Company that,
by implementing a remanufacturing program, Chrysler has realized substantial
warranty cost savings, standardized the quality of its dealers' aftermarket
repairs and reduced its own inventory of replacement parts. Currently, the
Company provides all remanufactured front wheel drive transmissions purchased
by Chrysler. In late 1996, the Company, with the approval of Chrysler,
developed a new production line to remanufacture substantially all of
Chrysler's rear wheel drive transmission models and has built up a core
supply necessary to support the program, although Chrysler has not yet
released firm orders for these models.
Autocraft began remanufacturing transmissions for Ford in 1989 and for
General Motors in 1985. The Company believes that as a result of the
acquisition of Autocraft, the Company provides approximately 90% of the
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remanufactured transmissions purchased by Ford and approximately 50% of the
remanufactured transmissions purchased by General Motors.
As part of its relationship with Ford, Autocraft also provides material
recovery services to assist Ford with the management of its dealer parts
inventory. Under this program, Ford dealers send their excess parts
inventory to Autocraft. The parts are then sorted and disposed of in one of
three ways: useful parts that are needed by other dealers are redistributed;
useful parts that are not needed by other dealers are sold to
remanufacturers, distributors and other third parties; and useless parts are
scrapped. Revenue from sales to third parties are shared by Ford and
Autocraft. Prior to the introduction of the material recovery program, Ford
scrapped all excess dealer parts but under the program the number of parts
that are scrapped has declined to less than 2%.
As part of its expanding relationship with Chrysler and in response to
periodic shortages of cores in the past, the Company established and expanded
a central core return center for all of Chrysler's transmission models.
Chrysler dealers make arrangements to ship transmission and engine cores to a
regional depot, which then ships directly to the Company's central core
return center located near its main remanufacturing facility. The Company
thus assists Chrysler by improving the efficient and timely return of cores
at a cost savings to Chrysler. Furthermore, the Company performs value-added
services such as core audit and analysis in conjunction with Chrysler
engineers. The Company is continuing to work with Chrysler to improve the
tracking and management of cores, which will allow the Company to schedule
its production more efficiently. The Company believes that this central core
facility has reduced the risk of future Chrysler core shortages. In
addition, the increased number of cores has resulted in a greater number of
reusable parts, which, together with recently expanded production capacity at
Chrysler, has increased the Company's supply of parts required in the
remanufacturing process. In 1996, the Company also established a technical
support center to assist selected Chrysler dealers in evaluating transmission
warranty repair options.
INDEPENDENT AFTERMARKET
The Company, through its ATC Distribution Group, supplies transmission
repair kits and hard parts used in drive train repairs to over 25,000 of the
approximately 71,000 independent transmission rebuilders, distributors and
general repair shops in the United States and Canada. These products are
used in the Independent Aftermarket to rebuild transmissions and other
assemblies using remanufactured and new component parts purchased from a
variety of suppliers. In addition, the Company supplies remanufactured
engines and transmission filter kits to over 1,600 of the approximately
40,000 retail automotive parts stores throughout the United States, which
offer new and remanufactured parts and assemblies to a broad range of
customers, principally "do-it-yourself" customers and general repair shops.
As the number of vehicle models has proliferated and repairs have become
increasingly complex, independent transmission rebuilders and general repair
shops have grown more dependent on their suppliers for technical support and
for assistance in managing inventory by delivering product on a just-in-time
basis at competitive prices. To address these needs, the Company maintains
60 distribution centers located in metropolitan areas throughout the United
States and Canada from which the Company provides technical support and a
wide range of drive train related products that are delivered on a same day
basis by trucks to customers in and around metropolitan areas and on a next
day basis by overnight carrier to customers in more remote areas. The
Company believes that its distribution system is the most extensive in the
drive train segment of the automotive aftermarket and represents a
competitive advantage for the Company relative to its typically smaller,
local competitors. The Company believes there are opportunities for further
geographic penetration in this relatively fragmented market. See "Business
Strategy."
The retail automotive parts store market is highly fragmented with most
retail stores obtaining products similar to those provided by the Company
from a variety of regional suppliers. The Company provides high quality
products, competitive prices and high service levels as well as value added
promotional literature and advertising support. The Company's principal
retail customers are Western Auto and Advance Auto.
The Company significantly expanded its telemarketing capability with the
acquisition of Trans Mart in August 1997. Telemarketing from a central
location in Alabama, coupled with the Company's next day delivery strategy to
more remote areas, enables the Company to reach customers in areas that
cannot support the costs associated with establishing and maintaining a
distribution center. In addition to telemarketing, new customers are
developed by
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the Company's direct sales force operating from its distribution centers, and
by national and local trade publication advertising. In addition, the
Company participates in various trade shows. The Company believes its
DIVERCO, HTP, INTERCONT, KING-O-MATIC, MAMCO, METRAN, OLYMPIC, REPCO, RPM and
TRANZPARTS brand names are well recognized and respected in their regional
markets.
The Company has developed a common product identification and numbering
system which is currently being implemented on a company-wide basis in
conjunction with a computer network electronically linking its distribution
centers. The Company expects to complete this process by the end of 1998.
These changes are expected to improve customer service, increase product
availability, enhance inventory management and improve operational
efficiencies.
The Company believes it is well positioned within the highly fragmented
aftermarket for drive train products as a result of its extensive product
line, diverse customer base and broad geographic presence, with 60
distribution centers throughout the United States and Canada. Sales to
Independent Aftermarket customers accounted for 48.1% of the Company's
revenues in 1996 and 53.1% of its revenues in 1997.
BUSINESS STRATEGY
The Company's strategy is to achieve growth both internally and through
strategic acquisitions. The Company intends to expand its business by: (i)
increasing penetration of its current customer base; (ii) gaining new OEM and
Independent Aftermarket customers; and (iii) introducing new products to both
existing and new customers. Strategic acquisitions have been an important
element in the Company's historical growth, and the Company plans to continue
to support its growth strategy through strategic acquisitions in the future.
The Company's management is experienced in identifying acquisition
opportunities and completing and integrating acquisitions within the
automotive aftermarket. In addition, the Company believes that its core
competency of remanufacturing, which has been applied to the drive train
products segment of the automotive aftermarket, has the potential to be
utilized in other aftermarket segments.
INCREASING SALES TO EXISTING CUSTOMERS
OEM CUSTOMERS. The Company intends to increase its business with its
existing OEM customers by working with OEMs to increase dealer utilization of
remanufactured transmissions in both the warranty and post-warranty period.
The Company is working in tandem with OEMs to highlight to dealers the
quality and cost advantages of using remanufactured assemblies versus
rebuilding. In addition, the post-warranty repair market, which the Company
believes is approximately eight times as large as the OEM dealer warranty
repair market, presents a growth opportunity. Currently, the vast majority
of post-warranty repairs are performed in the Independent Aftermarket rather
than at OEM dealers. Given the relatively low cost and high quality of
remanufactured components, OEM dealers can enhance their cost competitiveness
compared to independent service centers through the increased use of
remanufactured components as well as providing end customers with a high
quality product. To the extent that OEM dealers increase their level of
post-warranty repairs, the Company is well positioned to capitalize on this
market growth. The Company has introduced a number of new transmission
models and related drive train products in the last several years for its OEM
customers. The Company, with the approval of Chrysler, developed a new
production line in late 1996 dedicated to remanufacturing substantially all
of Chrysler's rear wheel drive transmission models and has built up a core
supply necessary to support the program, although Chrysler has not yet
released firm orders for these transmission models.
INDEPENDENT AFTERMARKET CUSTOMERS. The Company believes that it
currently supplies less than one-third of the remanufactured or new drive
train component requirements of its independent transmission rebuilder and
general repair shop customers. The Company believes it is well positioned to
expand sales to these customers through a common product identification and
numbering system which is currently being implemented on a company-wide basis
in conjunction with a computer network that will electronically link its
distribution centers. The Company also intends to expand its business with
existing customers by cross-selling products among its subsidiaries'
customers. For example, after its acquisition in January 1997, REPCO
introduced Mamco and RPM torque converters to its customers. The Company
intends to increase its business with its existing retail automotive
customers by offering "niche" products at competitive prices throughout these
customers' networks.
7
<PAGE>
INTRODUCING NEW PRODUCTS
OEM CUSTOMERS. The Company believes that OEMs recognize that the use of
remanufactured assemblies provide a high quality, lower cost alternative to
rebuilding damaged assemblies or replacing them with new assemblies. For this
reason, the Company believes that OEMs are interested in working with large,
high quality remanufacturers to reduce the OEMs' warranty expenditures and
increase their parts sales into the post-warranty aftermarket. The Company
continues to work with its OEM customers to identify additional remanufactured
products and services where the Company can provide value to the OEM. In this
way, the Company believes that it will be able to leverage its customer
relationships and remanufacturing competency. For example, in 1997 the Company
began remanufacturing 4.0 liter engines for Chrysler. In addition, the Company
also intends to leverage the electronic component capability of Autocraft by
introducing these products to some of its other OEM customers.
INDEPENDENT AFTERMARKET CUSTOMERS. The Company believes that its
reputation for high quality products and customer service enables it to leverage
its relationships with existing customers to sell additional products. The
Company monitors sales trends and is in frequent communication with customers
regarding potential new products. For example, in 1997 the Company began to
offer clutch kits, transmission filter kits and torque converters to its retail
customers. The acquisition of Diverco in October 1996 has enabled the Company
to begin offering standard transmission components to its independent
transmission rebuilder and general repair shop customers.
ESTABLISHING NEW CUSTOMER RELATIONSHIPS
OEM CUSTOMERS. The Company believes that opportunities for growth exist
with several OEMs regarding United States based remanufacturing programs. The
Company believes that this represents an opportunity for growth and is currently
working to develop programs with certain foreign OEMs. During 1997, the Company
began remanufacturing standard transmissions for New Venture Gear, a joint
venture between Chrysler and General Motors. In July 1997, the Company became
one of four suppliers of remanufactured transmissions to General Motors when the
Company acquired ATS, which has been remanufacturing transmissions for General
Motors for 12 years. In March 1998, the Company expanded its business with
General Motors by purchasing Autocraft, one of General Motors' other three
transmission suppliers. The Autocraft Acquisition also marked the addition of
Ford as one of the Company's customers.
INDEPENDENT AFTERMARKET CUSTOMERS. The Company believes that its product
mix and distribution network position it to expand its Independent Aftermarket
customer base in three ways. First, although the Company's distribution network
is currently the most extensive in the drive train segment of the automotive
aftermarket, there are further opportunities for the Company to expand to
additional geographic markets. Second, as a result of the acquisition of Trans
Mart in August 1997, which significantly expanded the Company's telemarketing
capability, the Company expects to reach new Independent Aftermarket customers
in non-metropolitan areas. Third, in the last few years, the Company has
expanded its customer base to include general repair shops and retail automotive
parts stores. The Company now serves over 1,600 of the 40,000 retail automotive
parts stores in the United States, primarily by selling products to two retail
chains, and 25,000 of the approximately 71,000 independent transmission
rebuilders, distributors and general repair shops in the United States and
Canada. The Company intends to leverage its breadth of products and
distribution network to supply "niche products" such as transmission filter kits
and remanufactured engines at improved availability rates and competitive
prices. The Company believes that its position as a leading national supplier
of remanufactured engines affords it the opportunity to service additional
national retail chains to the extent that these chains migrate away from their
existing fragmented base of suppliers. In addition, the Company's position
enables it to supply other chains that may expand their product lines in the
future to include remanufactured engines.
ADDITIONAL REMANUFACTURING OPPORTUNITIES
The Company has begun to look beyond the automotive aftermarket to identify
other aftermarket segments that utilize the Company's core competency of
remanufacturing. The Company believes that other markets may have similar
characteristics to those experienced by the Company in the automotive
aftermarket. If remanufacturing
8
<PAGE>
opportunities are identified in these other markets, the Company will review
them and may pursue those that are expected to be consistent with its
capabilities and investment objectives.
The foregoing discussion of the Company's business strategy contains
forward looking statements. See "Forward Looking Statement Notice."
COMPETITION
The Company competes in the highly fragmented automobile aftermarket for
transmissions, engines and other drive train components, in which the
majority of industry supply comes from small local or regional participants.
Competition is based primarily on product quality, service, delivery,
technical support and price. Many of the Company's competitors operate only
in certain geographic regions with a limited product line. The Company is
one of the largest participants in the aftermarket for remanufactured drive
train components, offers a more complete line of products across a diverse
customer base and has a much broader geographic presence than many of its
competitors. As a result, the Company believes that it is well positioned to
enhance its competitive position by expanding its product line through the
development of new products or acquisition of new businesses as well as by
expanding its distribution network into new geographic markets.
Nevertheless, the aftermarket for remanufactured drive train components
remains highly competitive, and certain of the Company's competitors are
larger than the Company and have greater financial and other resources
available to them than does the Company.
EMPLOYEES
As of December 31, 1997, the Company employed approximately 3,500
people. The Company believes its employee and labor relations are good. None
of the Company's subsidiaries has experienced a work stoppage in its history,
and the Company has not experienced any work stoppage since its formation in
1994. None of the Company's employees are members of any labor union. As a
result of the Autocraft Acquisition, in March 1998 the Company hired
approximately 1,500 new employees who had previously been employed by the
seller of Autocraft.
ENVIRONMENTAL
The Company is subject to various evolving Federal, state, local and
foreign environmental laws and regulations governing, among other things,
emissions to air, discharge to waters and the generation, handling, storage,
transportation, treatment and disposal of a variety of hazardous and
non-hazardous substances and wastes. These laws and regulations provide for
substantial fines and criminal sanctions for violations and impose liability
for the costs of cleaning up, and certain damages resulting from, past
spills, disposals or other releases of hazardous substances.
In connection with the Acquisitions, the Company conducted certain
investigations of the acquired companies' facilities and their compliance
with applicable environmental laws. The investigations, which included
"Phase I" assessments by independent consultants of all manufacturing and
certain distribution facilities, found that certain facilities have had or
may have had releases of hazardous materials that may require remediation and
also may be subject to potential liabilities for contamination from off-site
disposal of substances or wastes. These assessments also found that certain
reporting and other regulatory requirements, including certain waste
management procedures, were not or may not have been satisfied. Although
there can be no assurance, the Company believes that, based in part on the
investigations conducted, in part on certain remediation completed prior to
the acquisitions, and in part on the indemnification provisions of the
agreements entered into in connection with the Company's acquisitions, the
Company will not incur any material liabilities relating to these matters.
The company from which RPM acquired its assets (the "Prior RPM Company")
has been identified by the United States Environmental Protection Agency (the
"EPA") as one of many potentially responsible parties for environmental
liabilities associated with a "Superfund" site located in the area of RPM's
former manufacturing facilities and current distribution facility in Azusa,
California. The Federal Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended ("CERCLA" or "Superfund"), provides for
cleanup of sites from which there has been a release or threatened release of
hazardous substances, and authorizes recovery of related response costs and
certain other damages from potentially responsible parties ("PRPs"). PRPs
are broadly defined
9
<PAGE>
under CERCLA, and generally include present owners and operators of a site
and certain past owners and operators. As a general rule, courts have
interpreted CERCLA to impose strict, joint and several liability upon all
persons liable for cleanup costs. As a practical matter, however, at sites
where there are multiple PRPs, the costs of cleanup typically are allocated
among the PRPs according to a volumetric or other standard. The EPA has
preliminarily estimated that it will cost approximately $47 million to
construct and approximately $4 million per year for an indefinite period to
operate an interim remedial groundwater pumping and treatment system for the
part of the Superfund site within which RPM's former manufacturing facilities
and current distribution facility, as well as those of many other potentially
responsible parties, are located. The actual cost of this remedial action
could vary substantially from this estimate, and additional costs associated
with the Superfund site are likely to be assessed. The Company has
significantly reduced its presence at the site and has moved all
manufacturing operations off-site. Since July 1995, the Company's only real
property interest in this site has been the lease of a 6,000 square foot
storage and distribution facility. The RPM acquisition agreement and the
leases pursuant to which the Company leased RPM's facilities after the
Company acquired the assets of RPM (the "RPM Acquisition") expressly provide
that the Company did not assume any liabilities for environmental conditions
existing on or before the RPM Acquisition, although the Company could become
responsible for these liabilities under various legal theories. The Company
is indemnified against any such liabilities by the seller of RPM as well as
the Prior RPM Company shareholders. There can be no assurance, however, that
the Company would be able to make any recovery under any indemnification
provisions. Since the RPM Acquisition, the Company has been engaged in
negotiations with the EPA to settle any liability that it may have for this
site. Although there can be no assurance, the Company believes that it will
not incur any material liability as a result of these environmental
conditions.
CERTAIN FACTORS AFFECTING THE COMPANY
Set forth below are certain factors that may affect the Company's
business:
DEPENDENCE ON SIGNIFICANT CUSTOMER
The Company's largest customer, Chrysler, accounted for approximately
37.2% and 32.0% of the Company's net sales for 1996 and 1997, respectively.
No other customer accounted for more than 10% of the Company's net sales
during either of these years, although the Company expects that Ford will
account for more than 10% of the Company's net sales in 1998.
Chrysler, like other North American OEMs, generally requires its dealers
using remanufactured products to use only those from approved suppliers.
Although the Company is currently the only factory-approved supplier of
remanufactured transmissions to Chrysler, Chrysler (like the Company's other
OEM customers) is not obligated to continue to purchase the Company's
products and there can be no assurance that the Company will be able to
maintain or increase the level of its sales to Chrysler or that Chrysler will
not approve other suppliers in the future. In addition, within the last
three years Chrysler reduced its standard new vehicle warranty from seven
years/70,000 miles to three years/36,000 miles and could implement a shorter
warranty in the future. Any such action could have the effect of reducing
the amount of warranty work performed by Chrysler dealers. An extended,
substantial decrease in orders from Chrysler would have a material adverse
effect on the Company. See "Customers--OEM Customers."
SHORTAGE OF TRANSMISSION CORES AND COMPONENT PARTS
In its remanufacturing operations, the Company obtains used
transmissions, hard parts, engines and related components, commonly known as
"cores," which are sorted and either placed into immediate production or
stored until needed. The majority of the cores remanufactured by the Company
are obtained from OEMs or from Independent Aftermarket customers as
trade-ins. The ability to obtain cores of the types and in the quantities
required by the Company is critical to the Company's ability to meet demand
and expand production. With the increased acceptance in the aftermarket of
remanufactured assemblies, the demand for cores has increased. The Company
periodically has experienced situations in which the inability to obtain
sufficient cores has limited its ability to accept all of the orders
available to it. As part of its expanding relationship with Chrysler and in
response to the periodic shortage of cores, in 1995 the Company established a
central core return center for all of Chrysler's transmission product lines.
The operation of this facility enables the Company to receive cores on a more
timely basis and better monitor the
10
<PAGE>
availability of cores. There can be no assurance that the Company will not
experience core shortages in the future. If the Company were to experience
such a shortage, it could have a material adverse effect on the Company.
Certain component parts required in the remanufacturing process are
manufactured by Chrysler and the Company's other OEM customers. The Company
has experienced shortages of such component parts from time to time in the
past, and future shortages could have a material adverse effect on the
Company.
ABILITY TO ACHIEVE AND MANAGE GROWTH
An important element in the Company's growth strategy is the acquisition
and integration of complementary businesses in order to broaden product
offerings, capture market share and improve profitability. There can be no
assurance that the Company will be able to identify or reach mutually
agreeable terms with acquisition candidates, or that the Company will be able
to manage additional businesses profitably or successfully integrate such
additional businesses into the Company without substantial costs, delays or
other problems. Acquisitions may involve a number of special risks,
including: initial reductions in the Company's reported operating results;
diversion of management's attention; unanticipated problems or legal
liabilities; and a possible reduction in reported earnings due to
amortization of acquired intangible assets in the event that such
acquisitions are made at levels that exceed the fair market value of net
tangible assets. Some or all of these items could have a material adverse
effect on the Company. There can be no assurance that businesses acquired in
the future will achieve sales and profitability that justify the investment
therein. In addition, to the extent that consolidation becomes more
prevalent in the industry, the prices for attractive acquisition candidates
may increase to unacceptable levels. See "Business Strategy."
The Company also plans to expand its existing operations by broadening
its product lines and increasing the number of its distribution centers in
the United States. There can be no assurance that any new product lines
introduced by the Company will be successful, that the Company will manage
successfully the start-up and marketing of new products or that additional
distribution centers will be integrated into the Company's existing
operations or will be profitable. See "Business Strategy."
In addition, the Company is exploring possible additional markets for
its remanufacturing capabilities, but no assurance can be given that the
Company will pursue any such opportunity or be successful outside the
automotive aftermarket. See "Business Strategy--Additional Remanufacturing
Opportunities."
INDEBTEDNESS AND LIQUIDITY
The Company had outstanding long-term indebtedness of $273.1 million at
March 6, 1998. See Item 7. "Management's Discussion and Analysis of
Financial Condition and Results of Operations--Liquidity and Capital
Resources." The level of the Company's consolidated indebtedness could have
important consequences, including the following: (i) a substantial portion of
the Company's cash flow from operations must be dedicated to the payment of
principal of and interest on its indebtedness and will not be available for
other purposes; (ii) the ability of the Company to obtain financing in the
future for working capital needs, capital expenditures, acquisitions,
investments, general corporate purposes or other purposes may be materially
limited or impaired; (iii) the Company's level of indebtedness may reduce its
flexibility to respond to changing business and economic conditions or take
advantage of business opportunities that may arise; and (iv) the ability of
the Company to pay dividends is restricted. See Item 5. "Market for
Registrant's Common Equity and Related Stockholder Matters." Any default by
the Company with respect to its outstanding indebtedness, or any inability on
the part of the Company to obtain necessary liquidity, would have a material
adverse effect on the Company.
DEPENDENCE ON KEY PERSONNEL
The Company is dependent on the continued services of its management
team, including Stephen J. Perkins, Chairman of the Board, President and
Chief Executive Officer. Although the Company believes it could replace key
employees in an orderly fashion should the need arise, the loss of such
personnel could have a material adverse effect on the Company.
11
<PAGE>
ENVIRONMENTAL MATTERS
The Company is subject to various evolving federal, state, local and
foreign environmental laws and regulations governing, among other things,
emissions to air, discharge to waters and the generation, handling, storage,
transportation, treatment and disposal of a variety of hazardous and
non-hazardous substances and wastes. These laws and regulations provide for
substantial fines and criminal sanctions for violations and impose liability
for the costs of cleaning up, and certain damages resulting from, past
spills, disposals or other releases of hazardous substances. In connection
with the Acquisitions, the Company conducted certain investigations of the
acquired companies' facilities and their compliance with applicable
environmental laws. These investigations found various environmental matters
and conditions that could, under certain circumstances, expose the Company to
liability. Furthermore, the company from which RPM acquired its assets has
been identified by the United States Environmental Protection Agency as one
of the many potentially responsible parties for environmental liabilities
associated with a "Superfund" site located in the area of RPM's former
manufacturing facilities and one of its current distribution facilities.
Although no assurances can be given, the Company believes that it will not
incur any material liabilities relating to these matters. See "Environmental
Matters."
COMPETITION
The automotive aftermarket for transmissions, engines and other drive
train products is highly fragmented and highly competitive. There can be no
assurance that the Company will compete successfully with other companies in
its industry segment, some of which are larger than the Company and have
greater financial and other resources available to them than does the
Company. See "Competition."
CONTROL OF THE COMPANY; ANTI-TAKEOVER MATTERS
The Company is controlled by Aurora Equity Partners L.P. ("AEP") and
Aurora Overseas Equity Partners I, L.P. ("AOEP" and together with AEP, the
"Aurora Partnerships"), which hold approximately 52% of the voting power in
the Company (through direct ownership and certain voting arrangements).
Therefore, the Aurora Partnerships will be able to elect all of the directors
of the Company and approve or disapprove any matter submitted to a vote of
the Company's stockholders. As a result of the Aurora Partnerships'
substantial ownership interest in the Common Stock, it may be more difficult
for a third party to acquire the Company. A potential buyer would likely be
deterred from any effort to acquire the Company absent the consent of the
Aurora Partnerships or their participation in the transaction. The general
partner of each of the Aurora Partnerships is controlled by Richard R.
Crowell, Gerald L. Parsky and Richard K. Roeder, each of whom is a director
of the Company. The Indentures governing the Company's 12% Senior
Subordinated Notes due 2004 (the "Senior Notes") contain provisions that
would allow a holder to require the Company to repurchase such holder's
Senior Notes at a cash price equal to 101% of the principal amount thereof,
together with accrued interest, upon the occurrence of a "change of control"
of the Company (as defined therein), which could also have the effect of
discouraging a third party from acquiring the Company. See Item 12.
"Security Ownership of Certain Beneficial Owners and Management."
In addition, the Company's Board of Directors is authorized, subject to
certain limitations prescribed by law, to issue up to 5,000,000 shares of
preferred stock in one or more classes or series and to fix the designations,
powers, preferences, rights, qualifications, limitations or restrictions,
including voting rights, of those shares without any further vote or action
by stockholders. The rights of the holders of Common Stock will be subject
to, and may be adversely affected by, the rights of the holders of any
preferred stock that may be issued in the future. The issuance of preferred
stock, while providing flexibility in connection with possible acquisitions
and other corporate transactions, could have the effect of making it more
difficult for a third party to acquire a majority of the outstanding voting
stock of the Company. The Company has no current plans to issue shares of
preferred stock.
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<PAGE>
ITEM 2. PROPERTIES
The Company leased 76 facilities with total leased space of
approximately 2.5 million square feet as of December 31, 1997. The following
table sets forth certain information regarding the manufacturing facilities
and distribution centers of the Company as of December 31, 1997.
<TABLE>
<CAPTION>
Lease
Approximate Expiration
Location Sq. Feet Date Type of Facility/Products Manufactured
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Florence, Alabama 85,100 2002 Distribution Center (1)
Phoenix, Arizona 22,000 2000 Distribution Center (1)
Tucson, Arizona 6,400 1998 Distribution Center (1)
Azusa, California 5,600 2000 Distribution Center (1)
Fresno, California 14,000 2000 Distribution Center (1)
Los Angeles, California 4,700 2000 Distribution Center (1)
Rancho Cucamonga, California 153,000 2002 Distribution Center (1)
Sacramento, California 11,200 1998 Distribution Center (1)
San Diego, California 10,000 2002 Distribution Center (1)
San Jose, California 10,000 2000 Distribution Center (1)
San Leandro, California 13,000 2002 Distribution Center (1)
Van Nuys, California 6,800 2000 Distribution Center (1)
Colorado Springs, Colorado 5,000 * Distribution Center (1)
Denver, Colorado 9,000 2000 Distribution Center (1)
Jacksonville, Florida 12,000 1999 Distribution Center (2)
Orlando, Florida 11,900 2002 Distribution Center (1)
Orlando, Florida 4,000 1998 Distribution Center (2)
Atlanta, Georgia 14,900 1998 Distribution Center (1)(2)
Harvey, Illinois 46,000 2001 Distribution Center (1)
Hillside, Illinois 20,000 2000 Distribution Center (1)(2)
Westmont, Illinois 5,900 2002 Corporate Offices
Louisville, Kentucky 51,500 1999 Distribution Center (1)
Louisville, Kentucky 9,200 * Distribution Center (1)(2)
Harahan, Louisiana 2,500 1998 Distribution Center (2)
Baltimore, Maryland 4,000 1999 Distribution Center (2)
Malden, Massachusetts 6,200 2001 Distribution Center (1)
Grand Rapids, Michigan 9,000 1998 Distribution Center (1)(2)
Taylor, Michigan 12,200 2000 Distribution Center (1)(2)
Berkeley, Missouri 18,000 1998 Distribution Center (1)
Creve Coeur, Missouri 9,700 1998 Distribution Center (1)(2)
Joplin, Missouri 264,000 2008 Manufacturing Facility
Kansas City, Missouri 10,200 2000 Distribution Center (1)(2)
Springfield, Missouri 280,800 2004 Manufacturing Facility
Springfield, Missouri 30,000 1999 Manufacturing Facility
Springfield, Missouri 12,100 2001 Distribution Center (1)(2)
Springfield, Missouri 34,000 * Manufacturing Facility
Springfield, Missouri 60,400 2000 Manufacturing Facility
Springfield, Missouri 98,800 * Manufacturing Facility
Springfield, Missouri 10,000 * Manufacturing Facility
Springfield, Missouri 200,000 2006 Manufacturing Facility
Las Vegas, Nevada 7,500 1999 Distribution Center (1)
Las Vegas, Nevada 250 * Sales Office
East Rutherford, New Jersey 5,700 1999 Distribution Center (2)
13
<PAGE>
Lease
Approximate Expiration
Location Sq. Feet Date Type of Facility/Products Manufactured
- ---------------------------------------------------------------------------------------------------------------
Mahwah, New Jersey 160,000 2003 Manufacturing Facility
Albuquerque, New Mexico 7,000 2000 Distribution Center (1)
Jericho, New York 13,800 1998 Distribution Center (1)
Charlotte, North Carolina 23,000 2001 Distribution Center (1)(2)
Gastonia, North Carolina 130,000 2000 Manufacturing Facility
Gastonia, North Carolina 60,000 * Manufacturing Facility
Dayton, Ohio 42,000 1999 Manufacturing Facility
Forest Park, Ohio 10,000 1998 Distribution Center (1)
Portland, Oregon 20,000 2000 Distribution Center (1)
Croydon, Pennsylvania 7,100 2000 Distribution Center (1)
Memphis, Tennessee 37,800 2003 Distribution Center (1)(2)
Nashville, Tennessee 6,500 2000 Distribution Center (1)
Austin, Texas 5,000 * Distribution Center (1)
Dallas, Texas 93,000 2012 Distribution Center (1)
Dallas, Texas 9,000 1998 Distribution Center (1)
Houston, Texas 13,500 2002 Distribution Center (1)(2)
San Antonio, Texas 13,000 2002 Distribution Center (1)
Salt Lake City, Utah 15,000 2000 Distribution Center (1)
Norfolk, Virginia 9,700 2000 Distribution Center (1)
Norfolk, Virginia 13,500 2002 Distribution Center (1)(2)
Seattle, Washington 22,000 2000 Distribution Center (1)
Spokane, Washington 9,500 2000 Distribution Center (1)
Janesville, Wisconsin 30,000 2001 Distribution Center (1)
Calgary, Alberta 9,200 2001 Distribution Center (1)
Edmonton, Alberta 14,800 2003 Distribution Center (3)
Delta, British Columbia (Vancouver) 13,000 2004 Distribution Center (1)
Moncton, New Brunswick 12,000 2000 Distribution Center (3)
Mississauga, Ontario 35,100 1998 Distribution Center (3)
Mississauga, Ontario 12,200 2001 Manufacturing Facility
Mississauga, Ontario 24,000 2000 Distribution Center (1)
Montreal, Quebec 11,200 2000 Distribution Center (1)
Regina, Saskatchewan 600 * Distribution Center (1)
Mexicali, Mexico 77,100 2002 Manufacturing Facility
</TABLE>
______________
* Month-to-month lease.
(1) Transmission repair kits & drive train hard parts.
(2) Engines
(3) Heavy duty truck transmissions & differentials
In connection with the Autocraft Acquisition, the Company purchased the
207,000 square foot facility in Oklahoma City, Oklahoma at which its Ford
transmission remanufacturing operations are conducted, as well as an adjacent
98,000 square foot facility at which the Ford material recovery program is
conducted. In addition, the Company began leasing 12 additional facilities
with an aggregate of approximately 450,000 square feet at which the other
Autocraft operations are conducted. These leased facilities are located in
Oklahoma City, Oklahoma; Carrollton, Fort Worth and Houston, Texas; Sparks,
Nevada; and Charlotte, North Carolina. The Company's new United Kingdom
subsidiary (which was acquired as part of the Autocraft Acquisition) owns a
120,000 square foot facility in Grantham, England from which it conducts its
engine remanufacturing operations.
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<PAGE>
The Company believes that its current manufacturing facilities and
distribution centers are adequate for the current level of the Company's
activities. The Company's transmission and engine remanufacturing facility
in Springfield, Missouri is currently employing two work shifts. Other
manufacturing sites have the flexibility to add both additional shifts and
production workers needed to accommodate additional demand for products and
services. However, in the event the Company were to experience a material
increase in sales, the Company may require additional manufacturing
facilities. The Company believes such additional facilities are readily
available on a timely basis on commercially reasonable terms. Further, the
Company believes that the leased space housing its existing manufacturing and
distribution facilities is not unique and could be readily replaced, if
necessary, at the end of the terms of its existing leases on commercially
reasonable terms. Many of the Company's leases are renewable at the option
of the Company.
ITEM 3. LEGAL PROCEEDINGS
From time to time, the Company has been and is involved in various legal
proceedings. Management believes that all of such litigation is routine in
nature and incidental to the conduct of its business, and that none of such
litigation, if determined adversely to the Company, would have a material
adverse effect, individually or in the aggregate, on the Company.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matters were submitted to a vote of the stockholders of the Company
during the quarter ended December 31, 1997.
15
<PAGE>
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER
MATTERS
The Company's Common Stock has been traded on the Nasdaq National Market
under the symbol "ATAC" since the IPO in December 1996. As of February 27,
1998, there were approximately 88 record holders of its Common Stock. The
following table sets forth for the periods indicated the range of high and
low sale prices of the Common Stock as reported by Nasdaq:
<TABLE>
<CAPTION>
High Low
<S> <C> <C>
1996
Fourth quarter (beginning December 17) ............. $17 5/8 $14 1/4
1997
First quarter ...................................... 19 5/8 14 3/8
Second quarter ..................................... 23 14 3/4
Third quarter ...................................... 27 1/4 18 1/2
Fourth quarter ..................................... 24 3/4 15 1/2
</TABLE>
On February 27, 1998, the last sale price of the Common Stock, as
reported by Nasdaq, was $23 15/16 per share.
The Company has not paid cash dividends on its Common Stock to date.
Because the Company currently intends to retain any earnings to provide funds
for the operation and expansion of its business and for the servicing and
repayment of indebtedness, the Company does not intend to pay cash dividends
on its Common Stock in the foreseeable future. Furthermore, as a holding
company with no independent operations, the ability of the Company to pay
cash dividends is dependent upon the receipt of dividends or other payments
from its subsidiaries. Under the terms of the Indentures governing the
Senior Notes, the Company is not permitted to pay any dividends on its Common
Stock unless certain financial ratio tests are satisfied. In addition, the
Company's $100.0 million Credit Facility contains certain covenants that,
among other things, prohibit the payment of dividends by the Company. See
Item 7. "Management's Discussion and Analysis of Financial Condition and
Results of Operations--Liquidity and Capital Resources." Any determination to
pay cash dividends on the Company's Common Stock in the future will be at the
sole discretion of the Company's Board of Directors.
During 1997, the Company did not issue any securities that were not
registered under the Securities Act of 1933, as amended.
16
<PAGE>
ITEM 6. SELECTED FINANCIAL DATA
The selected financial data presented below with respect to the
statements of income data for the years ended December 31, 1995, 1996 and
1997 and the balance sheet data at December 31, 1996 and 1997 are derived
from the Consolidated Financial Statements of the Company that have been
audited by Ernst & Young LLP, independent auditors, and are included
elsewhere herein, and are qualified by reference to such financial statements
and notes related thereto. The selected financial data with respect to the
statement of income data for the year ended December 31, 1993, the seven
months ended July 31, 1994 and the five months ended December 31, 1994 and
the balance sheet data at December 31, 1993, 1994 and 1995, are derived from
the audited Combined Financial Statements of the Predecessor Companies and
the Consolidated Financial Statements of the Company that have been audited
by Ernst & Young LLP, independent auditors, but are not included herein. The
data provided should be read in conjunction with the Consolidated Financial
Statements, related notes and other financial information included in this
Annual Report.
<TABLE>
<CAPTION>
COMBINED CONSOLIDATED
--------------------------------- ------------------------------------------------------
FOR THE YEAR FOR THE SEVEN FOR THE FIVE
ENDED MONTHS ENDED MONTHS ENDED FOR THE YEAR ENDED DECEMBER 31,
DECEMBER 31, JULY 31, DECEMBER 31, -------------------------------
1993 1994(1) 1994 1995 1996 1997(2)
--------------- ------------- -------------- ------ ------ --------
<S> <C> <C> <C> <C> <C> <C>
(IN THOUSANDS EXCEPT PER SHARE DATA)
STATEMENT OF INCOME DATA:
Net sales .......................... $110,702 $90,056 $67,736 $190,659 $272,878 $346,110
Cost of sales....................... 66,687 52,245 40,112 115,499 166,810 212,416
------- ------ ------ ------- ------- -------
Gross profit........................ 44,015 37,811 27,624 75,160 106,068 133,694
Selling, general and
administrative expenses............ 25,682 20,475 14,206 38,971 55,510 73,768
Amortization of intangible assets .. 28 16 1,210 3,308 3,738 4,501
------- ------ ------ ------- ------- -------
Operating income ................... 18,305 17,320 12,208 32,881 46,820 55,425
Interest expense (income), net ..... (302) (158) 6,032 16,915 19,106 16,910
Income taxes (3).................... 471 (5) 2,565 6,467 11,415 15,512
------- ------ ------ ------- ------- -------
Income before extraordinary item ... $ 18,136 $17,483 3,611 9,499 16,299 23,003
======= ======
Preferred stock dividends........... 853 2,093 2,222 -
------ ------- ------- -------
Income before extraordinary item
available to common stockholders.. $ 2,758 $ 7,406 $ 14,077 $23,003
====== ======= ======= =======
Diluted earnings per share before
extraordinary item (4) ........... $ 0.65 $ 1.02 $ 1.19
Shares used in computation of
diluted earnings per share
before extraordinary item (4) .... 14,616 15,918 19,335
OTHER DATA:
Capital expenditures (5)............ $ 2,310 $ 1,850 $ 1,336 $ 5,187 $ 7,843 $ 8,682
</TABLE>
17
<PAGE>
<TABLE>
<CAPTION>
Combined Consolidated
--------------- ---------------------------------
December 31,
---------------------------------------------------
1993 1994 1995 1996 1997
<S> <C> <C> <C> <C> <C>
(in thousands)
BALANCE SHEET DATA:
Working capital.............................. $26,651 $40,499 $60,012 $103,371 $98,523
Property, plant and equipment, net........... 4,678 6,196 10,784 17,482 24,414
Total assets................................. 45,618 187,293 247,932 320,747 368,677
Long-term liabilities (6).................... 998 121,483 165,724 167,233 152,571
Preferred stock.............................. - 20,853 22,946 - -
Common stockholders' equity ................. 31,720 22,757 30,188 105,832 175,429
_______________
</TABLE>
(1) The combined financial statements for the seven months ended July 31, 1994
include the operations of the Predecessor Companies up to their respective
acquisition dates. All material transactions between the Predecessor
Companies have been eliminated.
(2) Income before extraordinary item for the year ended December 31, 1997
excludes an extraordinary item in the amount of $3,749 ($6,269 less related
income tax benefit of $2,520). This amount is comprised of (i) a $5,700
charge resulting from the early redemption of $40,000 in principal amount
of the Senior Notes in February 1997, which included the payment of a 12.0%
early redemption premium and the write-off of related debt issuance costs
and (ii) a charge of approximately $600 for the write-off of previously
capitalized debt issuance costs in connection with the termination of the
Company's previous revolving credit facility.
(3) Two of the Predecessor Companies elected to be taxed as S Corporations for
all periods prior to the Initial Acquisitions; therefore, for federal and
state income tax purposes, any income or loss generally was not taxed to
these companies but was reported by their respective stockholders. A pro
forma provision for taxes based on income reflecting the estimated
provision for federal and state income taxes that would have been provided
had these companies been C Corporations and included in consolidated
returns with the Company is as follows: $7,334 for the year ended
December 31, 1993 and $7,004 for the seven months ended July 31, 1994.
(4) See Note 1 to Consolidated Financial Statements for a description of the
computation of net income per share.
(5) Excludes capital expenditures made by certain of the Company's subsidiaries
prior to such subsidiaries' respective acquisitions and any capital
expenditures made in connection with such acquisitions.
(6) Includes deferred tax liabilities of $1,438, $3,478, $5,252 and $8,044 at
December 31, 1994, 1995, 1996 and 1997, respectively.
18
<PAGE>
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
The following discussion should be read in conjunction with the
Consolidated Financial Statements of the Company and notes thereto included
elsewhere in this Annual Report.
OVERVIEW
The Company's revenues are generated through the sale of drive train
products used in the repair of vehicles in the automotive aftermarket. Since
its formation, the Company has benefited from a combination of internal and
acquisition-related revenue growth. The Company achieved compound annual
growth in revenue of approximately 33.0% from 1993 through 1997 (including
both internal growth and growth through acquisitions).
The Company's revenues from sales to Independent Aftermarket customers
increased by 26.9% compounded annually from $70.9 million to $183.8 million
from 1993 through 1997. This growth was due to geographic expansion through
the addition of distribution centers, a broadened product line, enhanced
customer service, effective sales efforts, the addition of retail automotive
parts stores as customers and acquisitions. During the same period, revenues
from sales to OEM customers increased by 42.1% compounded annually from $39.8
million to $162.3 million due to increased sales to existing customers,
including Chrysler, and the addition of new customers.
The primary components of the Company's cost of goods sold are the cost
of cores and component parts, labor costs and overhead. While certain of
these costs have fluctuated as a percentage of sales over time, cost of goods
sold as a percentage of sales has remained relatively constant from 1993
through 1997. Selling, general and administrative ("SG&A") expenses consist
primarily of salaries, commissions, rent, marketing expenses and other
management infrastructure expenses. SG&A expenses as a percentage of sales
declined from 23.2% in 1993 to 21.3% in 1997 principally due to the effect of
spreading certain fixed costs over a larger sales base.
The Company regularly evaluates strategic acquisition opportunities in
the automotive aftermarket business and expects to continue to do so in the
future. On March 6, 1998, the Company completed the acquisition of
substantially all the assets of the OEM Division of Autocraft. See Item 1.
"Business."
RESULTS OF OPERATIONS
The following table sets forth certain financial statement data expressed
in millions of dollars and as a percentage of net sales.
<TABLE>
<CAPTION>
Year Ended December 31,
-----------------------------------------------------
1995 1996 1997
-----------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
(in millions)
Net sales............................... $190.7 100.0% $272.9 100.0% $346.1 100.0%
Cost of sales........................... 115.5 60.6 166.8 61.1 212.4 61.4
------ ----- ------ ----- ----- -----
Gross profit............................ 75.2 39.4 106.1 38.9 133.7 38.6
SG&A expenses .......................... 39.0 20.5 55.5 20.3 73.8 21.3
Amortization of intangible assets ...... 3.3 1.7 3.8 1.4 4.5 1.3
------ ----- ------ ----- ----- -----
Operating income ....................... 32.9 17.2 46.8 17.2 55.4 16.0
Interest expense, net................... 16.9 8.8 19.1 7.0 16.9 4.9
Provision for income taxes.............. 6.5 3.4 11.4 4.2 15.5 4.5
------ ----- ------ ----- ----- -----
Income before extraordinary item ....... $ 9.5 5.0% $ 16.3 6.0% $ 23.0 6.6%
====== ===== ====== ===== ===== =====
</TABLE>
19
<PAGE>
YEAR ENDED DECEMBER 31, 1997 COMPARED TO YEAR ENDED DECEMBER 31, 1996.
Income before extraordinary item increased 41.1% from $16.3 million in
1996 to $23.0 million in 1997. Net sales increased 26.8%, from $272.9
million in 1996 to $346.1 million in 1997, primarily due to sales generated
by the acquisitions of REPCO, ATS, Trans Mart and Metran as well as increased
sales volumes to OEM customers. In general, costs and expenses also
increased; however, overall the Company was able to spread its overhead
expenses over a larger revenue base, which contributed to the comparatively
higher income from before extraordinary item for the year.
On a per share basis, income before extraordinary item increased from
$1.02 per diluted share in 1996 to $1.19 per diluted share in 1997. The
number of shares used in the per share calculations were 15.9 million in 1996
and 19.3 million in 1997. The increase in shares resulted primarily from the
Company's public offering of Common Stock in October 1997.
NET SALES. Net sales increased $73.2 million, or 26.8%, from $272.9
million in 1996 to $346.1 million in 1997. Of this increase, $23.2 million
was due to the internal growth described above and $50.0 million was due to
the incremental net sales generated by the companies acquired in 1997 (REPCO,
ATS, Trans Mart and Metran). Net sales to Chrysler represented 37.2% of
total net sales in 1996, as compared to 32.0% in 1997.
Net sales on a proforma (unaudited) basis, to reflect the 1996
acquisitions of Tranzparts and Diverco and the 1997 acqusitions of REPCO,
ATS, Trans Mart and Metran as if all acquisitions had occurred on January 1,
1996, were $358.6 million for 1996 and $392.5 million for 1997.
GROSS PROFIT. Gross profit as a percentage of net sales remained
relatively constant at 38.9% in 1996 as compared to 38.6% in 1997.
SG&A EXPENSES. The Company's SG&A expenses increased $18.3 million,
from $55.5 million in 1996 to $73.8 million in 1997. As a percentage of net
sales, SG&A expenses increased from 20.3% to 21.3% between the two periods.
The increase in SG&A expenses is primarily due to the ongoing incremental
expenses of the Tranzparts, Diverco, REPCO, ATS, Trans Mart and Metran
acquisitions, certain enhancements to the Company's infrastructure (including
additional management and improved information systems) and additional
selling and other variable overhead costs associated with the higher sales
volume (including increased production capacity). The increase in SG&A
expenses as a percentage of net sales is primarily attributable to: (i) the
deferred compensation expense described below, (ii) certain enhancements to
the Company's infrastructure (including additional management and improved
information systems) and (iii) the additional ongoing expenses associated
with being a publicly held company.
Included in SG&A expenses are non-cash charges totaling $0.5 million in
1996 and $1.8 million in 1997, representing the pro rata portion for each
year of deferred compensation expense relating to the difference between the
exercise price and the intrinsic value for financial statement presentation
purposes of stock options granted to Mr. Stephen J. Perkins, the Company's
Chairman of the Board, President and Chief Executive Officer, and other
members of senior management. The Company expects to recognize additional
compensation expense aggregating $1.1 million over the balance of the
respective vesting periods of the options, which generally range from three
to five years from the date of grant.
AMORTIZATION OF INTANGIBLE ASSETS. Amortization of intangible assets
increased from $3.8 million in 1996 to $4.5 million in 1997. The increase
resulted from the additional intangible assets arising from the acquisitions
of Tranzparts, Diverco, REPCO, ATS, Trans Mart and Metran.
INCOME FROM OPERATIONS. Principally as a result of the factors
described above, income from operations increased 18.4%, from $46.8 million
in 1996 to $55.4 million in 1997.
INTEREST EXPENSE, NET. Interest expense decreased from $19.1 million in
1996 to $16.9 million in 1997. The lower interest resulted from the net
effect of the early redemption in February 1997 of $40.0 million of the
Senior Notes
20
<PAGE>
offset to some extent by increased borrowings under the Company's $100.0
million revolving credit facility (the "Credit Facility"). The Credit
Facility carries a significantly lower effective interest rate than did the
Senior Notes.
EXTRAORDINARY ITEM. An extraordinary item in the amount of $3.8 million
($6.3 million, net of related income tax benefit of $2.5 million) was
recorded in 1997. This amount is comprised of (i) a $5.7 million charge
resulting from the early redemption of $40.0 million of the Senior Notes
in February 1997, which included the payment of a 12.0% early redemption
premium and the write-off of related debt issuance costs and (ii) a charge of
approximately $0.6 million for the write-off of previously capitalized debt
issuance costs in connection with the termination of the Company's previous
revolving credit facility.
YEAR ENDED DECEMBER 31, 1996 COMPARED TO YEAR ENDED DECEMBER 31, 1995.
Net income increased 71.6% from $9.5 million in 1995 to $16.3 million in
1996, as the Company experienced significant revenue growth from both of its
customer groups, OEMs and the Independent Aftermarket including retail
automotive parts stores. More than half of the revenue growth occurred from
OEM customers. Growth from the Independent Aftermarket was achieved largely
through two strategic acquisitions (Tranzparts and Diverco), and to a lesser
extent from internal growth. The higher net income was primarily achieved
from the Company's ability to spread its overhead expenses over a larger
revenue base.
Although the Company's IPO resulted in an increase in the number of
shares used in the earnings per share ("EPS") calculation, EPS increased
significantly from $0.65 in 1995 to $1.02 in 1996. The number of shares used
in the calculation of EPS were 14.6 million for 1995 and 15.9 million for
1996.
NET SALES. Net sales increased $82.2 million or 43.1%, from $190.7
million in 1995 to $272.9 million in 1996. Of this increase, $42.8 million
was due to internal growth and $39.4 million was due to the incremental net
sales generated by the companies acquired in 1995 and 1996: CRS, Mascot,
King-O-Matic, Tranzparts and Diverco, which were acquired on June 1, 1995,
June 9, 1995, September 12, 1995, April 2, 1996 and October 1, 1996,
respectively.
The internal growth was generated primarily from increased sales volumes
with existing OEM customers. To a lesser extent, internal growth was also
generated by the incremental sales associated with the opening of five new
distribution centers during the second half of 1995, increased sales volumes
through existing distribution centers and increased sales volumes with
existing retail customers.
Net sales to Chrysler of $101.5 million in 1996 represented 37.2% of the
Company's total net sales for the year, as compared to $67.6 million and
35.4% in 1995. The increase in net sales to Chrysler is partially reflective
of an effort by Chrysler during the third quarter of 1995 to reduce its
inventory of remanufactured transmissions. Management believes that the
Chrysler inventory reduction during the third quarter of 1995 was a one-time
effort to reverse an inventory build-up in 1994 and is not expected to recur.
GROSS PROFIT. Gross profit as a percentage of net sales decreased
slightly from 39.4% in 1995 to 38.9% in 1996. The decrease in gross profit
margin was largely attributable to certain non-recurring start-up costs
incurred during 1996 in connection with the Company's new plant in Joplin,
Missouri and the expansion of capacity at the Company's plant in Springfield,
Missouri needed to support sales growth to retail and OEM customers.
SG&A EXPENSES. SG&A expenses decreased slightly as a percentage of net
sales from 20.4% in 1995 to 20.3% in 1996. However, SG&A expenses increased
in absolute dollars from $39.0 million in 1995 to $55.5 million in 1996,
representing an increase of $16.5 million or 42.4%. The increase in SG&A
expenses was due largely to the ongoing incremental SG&A expenses of the
companies acquired in 1995 and 1996: CRS, Mascot, King-O-Matic, Tranzparts
and Diverco. Other significant factors contributing to the increase in SG&A
expenses include the ongoing incremental expenses associated with the five
new distribution centers opened during the second half of 1995, and certain
start-up and ongoing SG&A expenses incurred in connection with the Company's
new plant in Joplin, Missouri. In addition, SG&A expenses in 1996 included a
charge of approximately $0.7 million for certain planned reorganization costs
associated with the relocation of the Company's corporate headquarters to the
Chicago area and costs associated with a realignment of the Independent
Aftermarket division.
21
<PAGE>
AMORTIZATION OF INTANGIBLE ASSETS. Amortization of intangible assets
increased approximately $0.4 million in 1996 as compared to 1995, reflecting
the increase in intangible assets that occurred as a result of the
acquisitions of CRS, Mascot, King-O-Matic, Tranzparts and Diverco.
INCOME FROM OPERATIONS. Principally as a result of the factors
described above, income from operations increased 42.2%, from $32.9 million
in 1995 to $46.8 million in 1996. As a percentage of net sales, income from
operations in 1996 was 17.2%, equal to the same percentage of net sales in
1995.
INTEREST EXPENSE, NET. Interest expense increased $2.3 million from
$18.0 million in 1995 to $20.3 million in 1996. The increase was due to a
full year of interest expense on the Series D Senior Notes which were used to
finance the acquisitions of CRS, Mascot and King-O-Matic, and the related
amortization of debt issuance costs. The Series D Senior Notes were issued
on June 1, 1995 and therefore were only outstanding for the last seven months
of 1995.
LIQUIDITY AND CAPITAL RESOURCES
The Company had total cash and cash equivalents on hand of $78,000 at
December 31, 1997, representing a decrease in net cash of $46.4 million in
1997. Net cash provided by operating activities was $11.7 million for the
year. Net cash used in investing activities was $71.5 million for the
period, including $60.8 million for the acquisitions of REPCO, ATS, Trans
Mart and Metran, a scheduled payment of $2.0 million relating to the
acquisition of Diverco, and $8.7 million in capital expenditures, primarily
for purchases of equipment. Net cash provided by financing activities was
$13.3 million, including $47.9 million from the public offering of Common
Stock in October 1997 and net borrowings of $11.1 million under the Credit
Facility partially offset by payments totaling $44.8 million in connection
with the redemption of $40.0 million of Senior Notes.
The Company raised total net proceeds of $61.6 million in the IPO and
concurrent private placement of Common Stock in December 1996 and an
additional $47.9 million in the secondary offering in October 1997. From the
Company's inception in July 1994 to December 1996, the Company funded its
operations and investments in property and equipment, including acquisitions,
through the issuance of Senior Notes totaling $162.4 million, the private
sale of preferred stock of $20.0 million and Common Stock of $20.0 million,
and to a lesser extent through cash provided by operating activities and
revolving bank lines. In December 1996, the preferred stock was redeemed
and, in February 1997, $40.0 million in principal amount of the Senior Notes
was redeemed, with a combination of the proceeds from the IPO and borrowings
under the Credit Facility. The net proceeds from the secondary offering were
used to repay borrowings under the Credit Facility.
The Company's capital expenditures in 1997 were $8.7 million. These
capital expenditures consisted primarily of additional transmission, engine
and torque converter remanufacturing equipment and other improvements to
support planned increases in production capacity in the Joplin and
Springfield, Missouri and Mahwah, New Jersey plants.
The Company has budgeted $12.4 million for capital expenditures during
1998. These will include replacement and additional remanufacturing
equipment to support planned increases in production capacity in the
Company's Joplin and Springfield, Missouri and Mahwah, New Jersey facilities.
Overall, planned capital expenditures for 1998 are considered adequate for
normal replacement and consistent with projections for future sales and
earnings.
The ATS acquisition involves contingent payments aggregating up to $19.0
million (present value $13.6 million as of December 31, 1997) expected to be
made over eight years. The Autocraft Acquisition includes a deferred
purchase payment of up to $12.5 million payable in 1999.
In February 1997, the Company terminated its $30.0 million revolving
credit facility with The Chase Manhattan Bank (the "Bank") that had been
scheduled to mature in July 1999 and replaced it with the $100.0 million
Credit Facility, which is also with the Bank. The Credit Facility is
available to finance the Company's working capital requirements, future
acquisitions and other general corporate needs, and will expire in December
2001. Amounts advanced under the Credit Facility are secured by
substantially all assets of the Company. As of December 31, 1997, the
Company had approximately $86.2 million available under the Credit Facility.
22
<PAGE>
In March 1998 the credit agreement for the Credit Facility was amended
and restated to provide a $120.0 million term loan facility in addition to
the existing revolving facility. The Company borrowed $120.0 million under
the term loan facility on March 6, 1998 to purchase Autocraft and pay related
transaction expenses. The term loan is payable in quarterly installments
through December 31, 2003 and bears interest at a rate of at either (i) the
Alternate Base Rate plus a specified margin or (ii) the Eurodollar Rate plus
a specified margin. The "Alternate Base Rate" is equal to the highest of (a)
the Bank's prime rate, (b) the secondary market rate for three-month
certificates of deposit plus 1.0% and (c) the federal funds rate plus 0.5%,
in each case as in effect from time to time. The "Eurodollar Rate" is the
rate offered by the Bank for eurodollar deposits for one, two, three, six or,
if available by all lenders, nine months (as selected by the Company) in the
interbank eurodollar market in the approximate amount of the Bank's share of
the advance under the Credit Facility. The applicable margins for both
Alternate Base Rate and Eurodollar Rate loans are subject to a quarterly
adjustment based on the Company's leverage ratio as of the end of the four
fiscal quarters then completed. The Alternate Base Rate margin is zero
currently and the Eurodollar margin is currently at 1.0%.
In September 1997, the Company entered into an agreement with Bank of
Montreal for a revolving credit facility to accommodate the working capital
needs of the Company's Canadian subsidiaries. Borrowings under the agreement
are limited to certain advance rates based upon the eligible accounts
receivable and inventory of the Canadian subsidiaries up to an aggregate
maximum of C$3.5 million.
The Company believes that cash on hand, cash flow from operations and
existing borrowing capacity will be sufficient to fund its ongoing operations
and its budgeted capital expenditures. In pursuing future acquisitions, the
Company will continue to consider the effect any such acquisition costs may
have on its liquidity. In order to consummate such acquisitions, the Company
may need to seek additional capital through additional borrowings or equity
financings.
IMPACT OF NEW ACCOUNTING STANDARDS
In February 1997, the Financial Accounting Standards Board (the "FASB")
issued Statement of Financial Accounting Standards ("SFAS") No. 128,
"Earnings Per Share," which was adopted by the Company on December 31, 1997.
As a result, the Company changed the method previously used to compute
earnings per share and is restating all prior periods. Under the new
requirements for calculating primary earnings per share, the dilutive effect
of stock options and warrants is excluded.
In February 1997, the FASB issued SFAS No. 129, "Disclosure of
Information about Capital Structure," which was adopted by the Company on
December 31, 1997. This Statement requires additional disclosures relating to
liquidation preferences of preferred stock, information about the pertinent
rights and privileges of the outstanding equity securities, and the
redemption amounts for all issues of capital stock that are redeemable at
fixed or determinable prices on fixed or determinable dates. The Company
does not currently issue such securities; accordingly, this Statement has no
impact on the Company's financial statements.
In June 1997, the FASB issued SFAS No. 130, "Reporting Comprehensive
Income." In addition to net income, comprehensive income includes items
recorded directly to stockholders' equity such as cumulative foreign currency
translation adjustments. This Statement establishes new standards for
reporting and displaying comprehensive income and its components in a full
set of general-purpose financial statements. This Statement is effective for
fiscal years beginning after December 15, 1997. Adoption of this standard
will only require additional financial statement disclosure detailing the
Company's comprehensive income.
In June 1997, the FASB also issued SFAS No. 131, "Disclosures about
Segments of an Enterprise and Related Information." SFAS No. 131 establishes
new standards for reporting information about operating segments in interim
and annual financial statements. This Statement is also effective for fiscal
years beginning after December 15, 1997. The Company will evaluate the
impact, if any, this Statement will have on disclosures in the consolidated
financial statements.
23
<PAGE>
YEAR 2000 COMPLIANCE
The Company has been informed by the vendors of all its material
computer software that such software will continue to function properly
during the transition from 1999 to 2000 without disruption of the Company's
operations or the Company incurring additional cost for software upgrades or
modifications. The Company intends to conduct tests to confirm compliance by
the end of 1998. The Company's software includes both operational software
and software that is being implemented as part of the Company's continuing
efforts to seek operating efficiencies by upgrading its information systems.
INFLATION; LACK OF SEASONALITY
Although the Company is subject to the effects of changing prices, the
impact of inflation has not been a significant factor in results of
operations for the periods presented. In some circumstances, market
conditions or customer expectations may prevent the Company from increasing
the prices of its products to offset the inflationary pressures that may
increase its costs in the future. Historically, there has been little
seasonal fluctuation in the Company's business.
ENVIRONMENTAL MATTERS
See Item 1. "Business--Environmental" for a discussion of certain
environmental matters relating to the Company.
24
<PAGE>
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
AFTERMARKET TECHNOLOGY CORP.
CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1995, 1996 AND 1997
CONTENTS
Report of Ernst & Young LLP, Independent Auditors. . . . . . . . . . . 26
Consolidated Balance Sheets. . . . . . . . . . . . . . . . . . . . . . 27
Consolidated Statements of Income. . . . . . . . . . . . . . . . . . . 28
Consolidated Statements of Changes in Stockholders' Equity . . . . . . 29
Consolidated Statements of Cash Flows. . . . . . . . . . . . . . . . . 30
Notes to Consolidated Financial Statements . . . . . . . . . . . . . . 31
25
<PAGE>
REPORT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
Stockholders and Board of Directors
Aftermarket Technology Corp.
We have audited the accompanying consolidated balance sheets of
Aftermarket Technology Corp. (the Company) as of December 31, 1996 and 1997,
and the related consolidated statements of income, stockholders' equity, and
cash flows for each of the three years in the period ended December 31, 1997.
These financial statements are the responsibility of the Company's
management. Our responsibility is to express an opinion on these financial
statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free
of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements.
An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the consolidated financial position
of Aftermarket Technology Corp. at December 31, 1996 and 1997, and the
consolidated results of the Company's operations and cash flows for each of
the three years in the period ended December 31, 1997, in conformity with
generally accepted accounting principles.
ERNST & YOUNG LLP
Chicago, Illinois
February 23, 1998,
(Except for Note 17, as to which the date is March 6, 1998)
26
<PAGE>
AFTERMARKET TECHNOLOGY CORP.
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
<TABLE>
<CAPTION>
December 31, December 31,
1996 1997
------------- ------------
<S> <C> <C>
ASSETS
Current Assets:
Cash and cash equivalents $ 46,498 $ 78
Accounts receivable, net 38,780 53,761
Inventories 60,586 76,166
Prepaid and other assets 2,917 4,706
Refundable income taxes - 1,011
Deferred income taxes 2,272 3,478
---------- ---------
Total current assets 151,053 139,200
Equipment and leasehold improvements:
Machinery and equipment 12,907 19,335
Autos and trucks 2,011 2,712
Furniture and fixtures 1,553 3,139
Leasehold improvements 4,585 6,058
---------- ---------
21,056 31,244
Less accumulated depreciation and amortization (3,574) (6,830)
---------- ---------
17,482 24,414
Debt issuance costs, net 6,320 4,260
Cost in excess of net assets acquired, net 145,430 200,393
Other assets 462 410
---------- ---------
Total assets $ 320,747 $ 368,677
========== =========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities:
Accounts payable $ 25,226 $ 16,055
Accrued payroll and related costs 4,429 5,820
Accrued interest payable 7,996 6,253
Other accrued expenses 3,372 4,904
Bank lines of credit 4,335 4,596
Income taxes payable 321 -
Acquisition notes payable - 1,435
Due to former owners 2,003 1,614
---------- ---------
Total current liabilities 47,682 40,677
12% Series B and D Senior Subordinated Notes 161,981 121,288
Acquisition notes payable - 9,097
Amount drawn on revolving credit facility - 11,100
Deferred compensation - 3,042
Deferred income taxes 5,252 8,044
Commitments and contingencies (See Note 13)
Stockholders' equity:
Preferred stock, $.01 par value;
shares authorized - 5,000,000;
Issued and outstanding shares - none - -
Common stock, $.01 par value;
shares authorized - 30,000,000;
Issued and outstanding shares -
16,980,794 and 19,577,274
at December 31, 1996 and
December 31, 1997, respectively 169 195
Additional paid-in capital 81,380 131,604
Retained earnings 24,240 43,494
Cumulative translation adjustment 43 136
---------- ---------
Total stockholders' equity 105,832 175,429
---------- ---------
Total liabilities and stockholders' equity $ 320,747 $ 368,677
========== =========
</TABLE>
SEE ACCOMPANYING NOTES.
27
<PAGE>
AFTERMARKET TECHNOLOGY CORP.
CONSOLIDATED STATEMENTS OF INCOME
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
For the years ended December 31,
1995 1996 1997
----------- --------- ---------
<S> <C> <C> <C>
Net sales $ 190,659 $ 272,878 $ 346,110
Cost of sales 115,499 166,810 212,416
----------- --------- ---------
Gross profit 75,160 106,068 133,694
Selling, general and administrative expense 38,971 55,510 73,768
Amortization of intangible assets 3,308 3,738 4,501
----------- --------- ---------
Income from operations 32,881 46,820 55,425
Interest and other income 1,100 1,181 1,912
Interest expense 18,015 20,287 18,822
----------- --------- ---------
Income before income taxes and extraordinary item 15,966 27,714 38,515
Provision for income taxes 6,467 11,415 15,512
----------- --------- ---------
Income before extraordinary item 9,499 16,299 23,003
Extraordinary item - net of income tax
benefit of $2,520 - (See Note 16) - - 3,749
----------- --------- ---------
Net income 9,499 16,299 19,254
----------- --------- ---------
Dividends accrued on preferred stock 2,093 2,222 -
----------- --------- ---------
Net income available to common stockholders $ 7,406 $ 14,077 $ 19,254
=========== ========= =========
Basic earnings per common share:
Income before extraordinary item $ 0.69 $ 1.15 $ 1.31
Extraordinary item - - (0.21)
----------- --------- ---------
Net income $ 0.69 $ 1.15 $ 1.10
=========== ========= =========
Diluted earnings per common share:
Income before extraordinary item $ 0.65 $ 1.02 $ 1.19
Extraordinary item - - (0.20)
----------- --------- ---------
Net income $ 0.65 $ 1.02 $ 0.99
=========== ========= =========
</TABLE>
SEE ACCOMPANYING NOTES
28
<PAGE>
AFTERMARKET TECHNOLOGY CORP.
CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
<TABLE>
<CAPTION>
Cumulative
Preferred Common Capital in Excess Retained Translation
Stock Stock of Par Value Earnings Adjustments Total
--------- ------- ------------ -------- ----------- --------
<S> <C> <C> <C> <C> <C> <C>
Balance as of December 31, 1994 $ 20,853 $ 120 $ 19,880 $ 2,757 $ - $ 43,610
Net income - - - 9,499 - 9,499
Accrued dividends on preferred stock 2,093 - - (2,093) - -
Translation adjustment - - - - 25 25
----------------------------------------------------------------------------------------
Balance as of December 31, 1995 22,946 120 19,880 10,163 25 53,134
----------------------------------------------------------------------------------------
Issuance of 4,980,794 shares of common
stock for cash at $13.50 per share,
net of offering costs of $4,788 - 49 61,500 - 61,549
Redemption of preferred stock (25,168) - - - - (25,168)
Net income - - - 16,299 - 16,299
Accrued dividends on preferred stock 2,222 - - (2,222) - -
Translation adjustment - - - - 18 18
----------------------------------------------------------------------------------------
Balance as of December 31, 1996 - 169 81,380 24,240 43 105,832
----------------------------------------------------------------------------------------
Issuance of 2,200,000 shares of common
stock for cash at $22.03 per share,
net of offering costs of $530 - 22 47,915 - - 47,937
Issuance of 396,480 shares of common stock
from exercise of stock options - 4 2,309 - - 2,313
Net income - - - 19,254 - 19,254
Translation adjustment - - - - 93 93
----------------------------------------------------------------------------------------
Balance as of December 31, 1997 $ - $ 195 $ 131,604 $ 43,494 $ 136 $ 175,429
========================================================================================
</TABLE>
SEE ACCOMPANYING NOTES
29
<PAGE>
AFTERMARKET TECHNOLOGY CORP.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
<TABLE>
<CAPTION>
For the years ended December 31,
1995 1996 1997
-------- -------- --------
<S> <C> <C> <C>
OPERATING ACTIVITIES:
Net income $ 9,499 $ 16,299 $ 19,254
Adjustments to reconcile net income to
net cash provided by operating activities:
Extraordinary item - - 6,269
Depreciation and amortization 4,680 5,773 7,890
Amortization of debt issuance costs 710 842 905
Provision for losses on accounts receivable 1,239 668 921
Loss (gain) on sale of equipment (6) 22 8
Deferred income taxes 1,274 1,769 1,586
Changes in operating assets and liabilities
(net of acquired businesses):
Accounts receivable (3,914) (4,537) (10,258)
Inventories (8,119) (12,574) 544
Prepaid and other assets (1,138) (988) (1,583)
Accounts payable and accrued expenses 6,556 10,521 (13,803)
-------- -------- --------
Net cash provided by operating activities 10,781 17,795 11,733
-------- -------- --------
INVESTING ACTIVITIES:
Purchases of equipment and leasehold improvements (5,187) (7,843) (8,682)
Acquisition of companies, net of cash received (40,265) (12,199) (62,871)
Proceeds from sale of equipment 8 85 77
-------- -------- --------
Net cash used in investing activities (45,444) (19,957) (71,476)
-------- -------- --------
FINANCING ACTIVITIES:
Issuance of senior subordinated notes 42,400 - -
Borrowings (payments) on revolving credit facility, net (1,242) - 11,100
Borrowings on bank lines of credit, net - 3,523 171
Payment of debt issuance costs (2,179) - (786)
Redemption of senior subordinated notes - - (44,800)
Sale of Common Stock, net of offering costs - 61,549 47,937
Redemption of preferred stock - (25,168) -
Proceeds from exercise of stock options - - 662
Payments on amounts due to former owners (4,987) - (961)
-------- -------- --------
Net cash provided by financing activities 33,992 39,904 13,323
-------- -------- --------
Increase (decrease) in cash and cash equivalents (671) 37,742 (46,420)
Cash and cash equivalents at beginning of period 9,427 8,756 46,498
-------- -------- --------
Cash and cash equivalents at end of period $ 8,756 $ 46,498 $ 78
======== ======== ========
Cash paid during the period for:
Interest $ 15,376 $ 19,412 $ 19,094
Income taxes $ 3,221 $ 10,970 $ 10,880
</TABLE>
SEE ACCOMPANYING NOTES
30
<PAGE>
AFTERMARKET TECHNOLOGY CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(In thousands, except share and per share data)
NOTE 1. THE COMPANY
Aftermarket Technology Corp. and its subsidiaries ("ATC" or the
"Company") is a remanufacturer and distributor of drive train products used
in the repair of vehicles in the automotive aftermarket. The Company's
principal products include remanufactured transmissions, engines, torque
converters and remanufactured and new parts for the repair of automotive
drive train assemblies. The Company's customers include original equipment
manufacturers, independent transmission rebuilders, general repair shops,
distributors and retail automotive parts stores. Established in 1994, the
Company maintains manufacturing facilities and distribution centers in the
United States and Canada.
NOTE 2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
PRINCIPLES OF CONSOLIDATION
The accompanying consolidated financial statements include the accounts
of the Company and its wholly owned subsidiaries from the respective dates of
acquisition. All significant intercompany balances and transactions have
been eliminated.
USE OF ESTIMATES
The preparation of the financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the amounts reported in the financial statements and
accompanying notes. Actual results could differ from those estimates.
CASH AND CASH EQUIVALENTS
The Company considers all highly liquid investments with original
maturities of three months or less to be cash equivalents.
INVENTORIES
Inventories are stated at the lower of cost (first-in, first-out method)
or market and consist primarily of new and used engine and transmission
parts, cores and finished goods. Appropriate consideration is given to
deterioration, obsolescence, and other factors in evaluating estimated market
value.
EQUIPMENT AND LEASEHOLD IMPROVEMENTS
Equipment and leasehold improvements are stated at cost. Depreciation
is computed using accelerated and straight-line methods over the estimated
useful lives of the assets, which range from three to fifteen years.
Depreciation expense was $1,373, $2,035 and $3,394 for the years ended
December 31, 1995, 1996 and 1997, respectively.
FOREIGN CURRENCY TRANSLATION
The Company's Canadian subsidiaries use the Canadian dollar as their
functional currency. Accordingly, all balance sheet accounts have been
translated using the exchange rates in effect at the balance sheet date and
income statement amounts have been translated using the average exchange rate
for the year. The translation adjustments resulting from the changes in
exchange rates have been reported separately as a component of stockholders'
equity. The effect on the statements of income of transaction gains or losses
is insignificant for the periods presented.
31
<PAGE>
DEBT ISSUANCE COSTS
Debt issuance costs incurred in connection with the sale of the 12%
Series B and Series D Senior Notes (See Note 7) and revolving credit facility
(See Note 6) are being amortized over the life of the debt of ten, nine, and
five years, respectively, using a method which approximates the interest
method.
COST IN EXCESS OF NET ASSETS ACQUIRED
The excess of cost over the fair market value of the net assets of
businesses acquired (goodwill) is amortized on a straight-line basis over 40
years. Cost in excess of net assets acquired is reflected net of accumulated
amortization of $8,262 and $12,758 at December 31, 1996 and 1997,
respectively.
In accordance with Statement of Financial Accounting Standards ("SFAS")
No. 121, "Accounting for the Impairment of Long-Lived Assets and for
Long-Lived Assets to be Disposed of," the Company assesses the recoverability
of cost in excess of net assets acquired by determining whether the
amortization of the asset balance over its remaining life can be recovered
through the undiscounted future operating cash flows of the acquired
operation. The amount of the impairment, if any, is measured based on
projected discounted future operating cash flows.
CONCENTRATION OF CREDIT RISK
Financial instruments that potentially subject the Company to a
significant concentration of credit risk consist of accounts receivable from
its customers, which are primarily in the automotive aftermarket industry
throughout the United States and Canada. The credit risk associated with the
Company's accounts receivable is mitigated by its credit evaluation process,
reasonably short collection terms and, except for one significant customer,
the geographical dispersion of sales transactions.
The Company grants credit to certain customers who meet pre-established
credit requirements. Customers who do not meet those requirements are
required to pay for products upon delivery. Credit losses are provided for in
the financial statements and consistently have been within management's
expectations.
Accounts receivable is reflected net of an allowance for doubtful
accounts of $1,326 and $1,146 at December 31, 1996 and 1997, respectively.
WARRANTY POLICY
For certain products on which the Company provides a warranty, the
warranty period is generally up to twelve months or 12,000 miles.
STOCK-BASED COMPENSATION
As allowed under the provisions of SFAS No. 123, "Accounting for
Stock-Based Compensation," the Company continues to apply APB Opinion No. 25,
"Accounting for Stock Issued to Employees," and related interpretations in
accounting for the stock options awarded under the Company's 1996 plan.
Accordingly, a compensation cost is recognized only for those options whose
price is less than market at the measurement date.
NEW ACCOUNTING STANDARDS
The Financial Accounting Standards Board ("FASB") issued SFAS No. 128,
"Earnings Per Share," in February 1997. This statement, which establishes
new standards for computing and presenting earnings per share, includes the
presentation of basic and diluted earnings per share. As of December 31,
1997, the Company has adopted this statement and prior periods have been
restated. See Note 11 for further discussion and related disclosures.
The FASB issued SFAS No. 130, "Reporting Comprehensive Income," in June
1997. In addition to net income, comprehensive income includes items
recorded directly to stockholders' equity such as cumulative foreign currency
translation adjustments. This statement establishes new standards for
reporting and displaying comprehensive income and its components in a full
set of general-purpose financial statements. This statement is effective for
fiscal years beginning after December 15, 1997. Adoption of this standard
will only require additional financial statement disclosure detailing the
Company's comprehensive income.
32
<PAGE>
In June 1997, the FASB also issued SFAS No. 131, "Disclosures about
Segments of an Enterprise and Related Information." SFAS No. 131 establishes
new standards for reporting information about operating segments in interim
and annual financial statements. This statement is also effective for fiscal
years beginning after December 15, 1997. The Company will evaluate the
impact, if any, this statement will have on disclosures in the consolidated
financial statements.
RECLASSIFICATIONS
Certain prior-year amounts have been reclassified to conform to the 1997
presentation.
NOTE 3. ACQUISITIONS
During the year ended December 31, 1995, the Company acquired Component
Remanufacturing Specialists ("CRS"), Mascot Truck Parts Inc. ("Mascot") and
King-O-Matic ("King"), for a purchase price of approximately $30.5 million,
$3.0 million and $9.3 million, respectively, including transaction fees and
related expenses. The CRS and Mascot acquisitions closed on June 1, 1995 and
June 9, 1995, respectively, and the King acquisition closed on September 12,
1995 (collectively, the "1995 Acquisitions"). Goodwill recorded for CRS,
Mascot and King approximated $24.6 million, $2.0 million and $4.9 million,
respectively. The Company issued $40 million in principal amount of 12%
Senior Notes due in 2004 concurrently with the acquisition of CRS, the
proceeds of which financed the 1995 Acquisitions (See Note 7).
The Company acquired Tranzparts, Inc. ("Tranzparts") for $4.2 million
and Diverco, Inc. ("Diverco") for $10.9 million in April 1996 and October
1996, respectively, including transaction fees and related expenses.
Goodwill recorded for Tranzparts and Diverco approximated $2.4 million and
$6.6 million, respectively. The operations of Tranzparts and Diverco were
not material to the Company's consolidated operations.
In January 1997, the Company acquired REPCO Industries, Inc. ("REPCO");
a Texas based distributor of transmission repair parts, for a purchase price
of approximately $12.3 million, including transaction fees and related
expenses. Goodwill recorded approximated $6.8 million. The operations of
REPCO were not material to the Company's consolidated operations.
In July 1997, the Company acquired substantially all of the assets of
ATS Remanufacturing ("ATS"), a remanufacturer of automatic transmissions and
related components located in Gastonia, North Carolina. In August 1997, the
Company acquired all of the outstanding capital stock of Trans Mart, Inc.
("Trans Mart"), a distributor of automatic and standard transmission parts
and related drive train components based in Florence, Alabama. To complete
these acquisitions, the Company made cash payments totaling $12.9 million and
$27.9 million for ATS and Trans Mart, respectively, including transaction
fees and related expenses. In addition, the ATS acquisition calls for
subsequent payments due on each of the first eight anniversaries of the
closing date. Substantially all of these additional payments, which will
aggregate up to approximately $19.0 million (present value $13.6 million as
of December 31, 1997), are contingent upon the attainment of certain sales
levels by ATS, which the Company believes are more likely than not to be
attained. Goodwill recorded for ATS and Trans Mart approximated $26.1
million and $20.9 million, respectively. The operations of ATS and Trans Mart
were not material to the Company's consolidated operations.
In November 1997, the Company acquired Metran Automatic Transmission
Parts Corp. ("Metran"), a New York based distributor of automatic and manual
transmission parts and related drive train components, for a purchase price
of approximately $8.1 million, including transaction fees and related
expenses. Goodwill recorded approximated $5.2 million. The operations of
Metran were not material to the Company's consolidated operations.
These acquisitions have been accounted for under the purchase method of
accounting. Accordingly, the allocation of the cost of the acquired assets
and liabilities has been made on the basis of the estimated fair value.
Goodwill for all acquisitions is amortized over 40 years on a straight-line
basis. The consolidated financial statements include the operating results
of each business from the date of acquisition.
33
<PAGE>
The consolidated financial statements include the operating results of
each business from the date of acquisition. Unaudited pro forma net sales
of $210,958 and net income of $10,043 for the year ended December 31, 1995
gives effect to the 1995 acquisitions as if such acquisitions had occurred on
January 1, 1995. The pro forma information includes adjustments for interest
expense that would have been incurred to finance the acquisitions, additional
depreciation based on the fair market values of the property, plant and
equipment acquired, and amortization of intangibles arising from the
transactions. The pro forma financial information is not necessarily
indicative of the results of operations as they would have been had the
transactions been effected on the assumed dates. Pro forma information to
reflect the 1996 and 1997 acquisitions has not been presented because the
effect of such acquisitions was not material to prior periods.
NOTE 4. RELATED-PARTY TRANSACTIONS
The Company had liabilities to former owners totaling $2,003 at December
31, 1996 and $1,614 at December 31, 1997. These amounts are composed
primarily of additional purchase price payable to the former owners of those
companies acquired in 1996 and 1997. The remaining amounts are payable during
1998 and 1999.
The Company paid Aurora Capital Partners (ACP), which controls a
significant stockholder, approximately $0.3 million and $1.4 million in fees
for investment banking services provided in connection with companies
acquired in 1996 and 1997, respectively. In addition, ACP was paid management
fees of $513 and $534 in 1996 and 1997, respectively. ACP is also entitled
to various additional fees depending on the Company's profitability or
certain significant corporate transactions. No such additional fees were
paid in 1996 and 1997.
NOTE 5. INVENTORIES
Inventories consist of the following:
<TABLE>
<CAPTION>
December 31,
------------------------------
1996 1997
------------------------------
<S> <C> <C>
Raw materials, including core inventories . . . $30,413 $24,788
Work-in-process . . . . . . . . . . . . . . . . 1,166 3,125
Finished goods. . . . . . . . . . . . . . . . . 29,007 48,253
------------------------------
$60,586 $76,166
==============================
</TABLE>
Finished goods include purchased parts which are available for sale.
NOTE 6. BANK LINES OF CREDIT
CURRENT LIABILITIES
In September 1997, the Canadian subsidiaries entered into a revolving
credit agreement with Bank of Montreal (the "BOM Revolving Credit Agreement")
for a C$3.5 million revolving credit facility to accommodate the working capital
needs of the Canadian subsidiaries. Subject to the satisfaction of customary
conditions, advances under the BOM Revolving Credit Agreement may be made, and
letters of credit may be issued, up to an aggregate of C$3.5 million, due upon
demand, subject to annual review. The funds available to be advanced may not
exceed the aggregate of 75% of the eligible accounts receivable and 50% of the
eligible inventory of the Canadian subsidiaries in each case as defined in the
BOM Revolving Credit Agreement. Amounts advanced are secured by substantially
all assets of the Canadian subsidiaries and are guaranteed by the Company.
Interest is payable monthly at the Bank of Montreal's prime lending rate plus
0.25%. The agreement contains certain covenants including a tangible net worth
covenant for the combined results of Canadian subsidiaries. At December 31,
1997, $1.9 million was outstanding under this line of credit.
34
<PAGE>
In January 1996, the Company entered into an agreement with Commerce
Bank, N.A. providing financing for equipment purchases up to a maximum of
$2.9 million, secured by the underlying equipment purchased. Interest is
payable monthly at a fixed rate equal to 70% of Commerce Bank's prime lending
rate at the date of the advance plus 1%. As of December 31, 1997, $2.6
million was outstanding under this loan agreement. The agreement contains
several covenants including levels of net worth, leverage, interest coverage
and earnings before interest, taxes, depreciation, and amortization (EBITDA).
REVOLVING CREDIT FACILITY
In February 1997, the Company entered into an agreement with The Chase
Manhattan Bank (the "Bank"), as agent, providing for a $100 million revolving
credit facility (the "Revolving Credit Facility") available to the Company
for acquisitions and working capital purposes. Amounts advanced under
Revolving Credit Facility are secured by substantially all assets of the
Company and will become due on December 31, 2001, although the Company may
prepay outstanding advances in whole or in part without incurring any premium
or penalty.
At the Company's election, amounts advanced under the Revolving Credit
Facility will bear interest at either (i) the Alternate Base Rate plus a
specified margin, or (ii) the Eurodollar Rate plus a specified margin. The
"Alternate Base Rate" is equal to the highest of (a) the Bank's prime rate,
(b) the secondary market rate for three-month certificates of deposit plus
1.0% and (c) the federal funds rate plus 0.5%, in each case as in effect from
time to time. The "Eurodollar Rate" is the rate offered by the Bank for
eurodollar deposits for one, two, three or six months (as selected by the
Company) in the interbank eurodollar market in the approximate amount of the
Bank's share of the advance under the Credit Facility. The applicable
margins for both Alternate Base Rate and Eurodollar Rate loans are subject to
a quarterly adjustment based on the Company's leverage ratio as of the end of
the four fiscal quarters then completed. At December 31, 1997, the Alternate
Base Rate and the Eurodollar Rate margins are 0.5% and 1.5%, respectively.
Interest payments on advances that bear interest based upon the Alternate
Base Rate are due quarterly in arrears and on the Termination Date, and
interest payments on advances that bear interest based upon the Eurodollar
Rate are due on the last day of each relevant interest period (or, if such
period exceeds three months, quarterly after the first day of such period).
The Company paid the Bank a one-time facility and commitment fee upon
the effective date of the Credit Facility and is required to pay the Bank
quarterly in arrears a commitment fee equal to a per annum percentage of the
average daily unused portion of the Credit Facility during such quarter. The
commitment is subject to a quarterly adjustment based on the Company's
leverage ratio as of the end of the four fiscal quarters then completed. The
quarterly commitment fee percentage is 0.375%. The Company must also
reimburse the Bank for certain legal and other costs of the Bank and pay a
fee on outstanding letters of credit at a rate per annum equal to the
applicable margin then in effect for advances bearing interest at the
Eurodollar Rate.
The Revolving Credit Facility contains several covenants, including
levels of net worth, leverage, EBITDA and cash flow coverage, and certain
limits on the Company to incur indebtedness, make capital expenditures,
create liens, engage in mergers and consolidations, make restricted payments
(including dividends), make asset sales, make investments, issue stock and
engage in transactions with affiliates of the Company and its subsidiaries.
At December 31, 1997, $11,100 was outstanding under this line of credit.
Subsequent to December 31, 1997, the credit agreement for the Revolving
Credit Facility was amended and restated (See Note 17).
NOTE 7. 12% SERIES B AND SERIES D SENIOR SUBORDINATED NOTES
On August 2, 1994, the Company completed a private placement issuance of
$120 million in principal amount of 12% Series A Senior Subordinated Notes
due in 2004. Proceeds from the issuance were used to partially finance the
initial acquisitions of the Company. The privately placed debt was exchanged
for public debt (designated Series B) on February 22, 1995.
On June 1, 1995, the Company completed another private placement
issuance of $40 million in principal amount of 12% Series C Senior
Subordinated Notes due in 2004. Proceeds of $42.4 million from the issuance
were used to finance the 1995 Acquisitions. These notes have an effective
interest rate of 10.95%. The privately placed debt was exchanged for public
debt (designated Series D) on September 10, 1995.
35
<PAGE>
Interest on the 12% Series B and Series D Senior Subordinated Notes (the
"Senior Notes") is payable semiannually on February 1 and August 1 of each
year. The Senior Notes will mature on August 1, 2004. On or after August 1,
1999, the Senior Notes may be redeemed at the option of the Company, in whole
or in part, at specified redemption prices plus accrued and unpaid interest:
<TABLE>
<CAPTION>
YEAR REDEMPTION PRICE
---- ----------------
<S> <C>
1999. . . . . . . . . . . . . . . . . . . . . . 106%
2000. . . . . . . . . . . . . . . . . . . . . . 104
2001. . . . . . . . . . . . . . . . . . . . . . 102
2002 and thereafter . . . . . . . . . . . . . . 100
</TABLE>
In addition, at any time on or prior to August 1, 1997, the Company
could have, subject to certain requirements, redeemed up to $30 million of
the Series B Senior Notes and $10 million of the Series D Senior Notes
aggregate principal amounts with the net cash proceeds of one or more public
equity offerings, at a price equal to 112% of the principal amount to be
redeemed plus accrued and unpaid interest. On February 16, 1997 the Company
exercised its right and redeemed $30 million in principal amount of the
Series B Senior Notes and $10 million in principal amount of the Series D
Senior Notes resulting in a loss on early extinguishment of debt (See Note
16).
In the event of a change in control, the Company would be required to
offer to repurchase the Senior Notes at a price equal to 101% of the
principal amount plus accrued and unpaid interest.
The Senior Notes are general obligations of the Company, subordinated in
right of payment to all existing and future senior debt (including the
Company's revolving credit facility). The Senior Notes are guaranteed by each
of the Company's existing and future subsidiaries other than any subsidiary
designated as an unrestricted subsidiary (as defined). As of December 31,
1997, the Company had no unrestricted subsidiaries. The Company may incur
additional indebtedness, including borrowings under its revolving credit
facility (See Note 6), subject to certain limitations.
The indentures under which the Senior Notes were issued contain certain
covenants that, among other things, limit the Company from incurring other
indebtedness, issuing disqualified capital stock, engaging in transactions
with affiliates, incurring liens, making certain restricted payments
(including dividends), making certain asset sales and permitting certain
restrictions on the ability of its subsidiaries to make distributions. As of
December 31, 1997, the Company was in compliance with such covenants.
36
<PAGE>
NOTE 8. INCOME TAXES
Deferred income taxes reflect the net tax effects of temporary
differences between the carrying amounts of assets and liabilities for
financial reporting purposes and the amounts used for income tax purposes.
Significant components of the Company's deferred tax liabilities and assets
are as follows:
<TABLE>
<CAPTION>
December 31,
------------------------
1996 1997
----------- ---------
<S> <C> <C>
Deferred tax liabilities:
Tax amortization basis of intangible assets in
excess of book amortization . . . . . . . . . . $4,630 $6,987
Tax depreciation of equipment & leasehold
improvements in excess of book depreciation . . 622 1,057
------------------------
Total deferred tax liabilities . . . . . . . . . . . 5,252 8,044
------------------------
Deferred tax assets:
Inventory obsolescence reserve. . . . . . . . . . 1,182 854
Bad debt reserves . . . . . . . . . . . . . . . . 778 378
Product warranty accruals . . . . . . . . . . . . 312 506
Other accruals & deferrals. . . . . . . . . . . . -- 1,740
------------------------
Total deferred tax assets. . . . . . . . . . . . . . 2,272 3,478
------------------------
Net deferred tax liability . . . . . . . . . . . . . $2,980 $4,566
========================
</TABLE>
Significant components of the provision for income taxes attributable to
operations are as follows:
<TABLE>
<CAPTION>
Years ended December 31,
-----------------------------------
1995 1996 1997
----------- ---------- -------
<S> <C> <C> <C>
Current:
Federal . . . . . . . . . . . . . . . . . . . . . $4,422 $8,350 $11,902
State . . . . . . . . . . . . . . . . . . . . . . 764 1,147 1,919
Foreign. . . . . . . . . . . . . . . . . . . . . 7 149 105
-----------------------------------
Total current. . . . . . . . . . . . . . . . . . . . 5,193 9,646 13,926
-----------------------------------
Deferred:
Federal . . . . . . . . . . . . . . . . . . . . . 1,137 1,621 1,366
State . . . . . . . . . . . . . . . . . . . . . . 137 148 220
-----------------------------------
Total deferred . . . . . . . . . . . . . . . . . . . 1,274 1,769 1,586
Extraordinary item . . . . . . . . . . . . . . . . . -- -- ( 2,520)
-----------------------------------
$6,467 $11,415 $12,992
===================================
</TABLE>
The components of the provision for deferred income taxes are as follows:
<TABLE>
<CAPTION>
Years ended December 31,
---------------------------------------
1995 1996 1997
---------- ----------- -----------
<S> <C> <C> <C>
Amortization of intangible assets. . . . . . . . . . $1,759 $1,422 $2,357
Inventory obsolescence reserve . . . . . . . . . . . (333) (284) 328
Bad debt reserves. . . . . . . . . . . . . . . . . . (223) (233) 400
Product warranty accruals. . . . . . . . . . . . . . (20) 126 (194)
Depreciation . . . . . . . . . . . . . . . . . . . . 339 427 435
Other accruals & deferrals . . . . . . . . . . . . . (248) 311 (1,740)
---------------------------------------
Provision for deferred income taxes. . . . . . . . . $1,274 $1,769 $1,586
=======================================
</TABLE>
37
<PAGE>
The reconciliation of income tax expense computed at the U.S. federal
statutory tax rates to income tax expense is as follows:
<TABLE>
<CAPTION>
Years ended December 31,
---------------------------------------------------------------------
1995 1996 1997
---------------------------------------------------------------------
Amount Percent Amount Percent Amount Percent
---------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Tax at U.S. statutory rates. . . . . . . . . . . . . $5,588 35.0% $9,700 35.0% $11,286 35.0%
State income taxes, net of federal tax benefit . . . 529 3.3 842 3.0 1,167 3.6
Other. . . . . . . . . . . . . . . . . . . . . . . . 350 2.2 873 3.2 539 1.7
---------------------------------------------------------------------
$6,467 40.5% $11,415 41.2% $12,992 40.3%
=====================================================================
</TABLE>
NOTE 9. STOCK OPTIONS
The Company adopted its 1994 Stock Incentive Plan, which was
subsequently renamed the 1996 Stock Incentive Plan (the "Plan"), in July 1994
in order to provide incentives to employees and directors of the Company.
The Company has reserved 2,400,000 shares of Common Stock for issuance under
the Plan. Options are generally granted at the fair value on the date of
grant and vest over a period of time to be determined by the Board of
Directors, generally from three to five years. The options expire 10 years
from the date of grant. Options available for grant are 127,782 and 9,606 as
of December 31, 1996 and 1997, respectively.
A summary of the status of the Company's option plan is presented below:
<TABLE>
<CAPTION>
1995 1996 1997
Weighted- Weighted- Weighted-
Average Average Average
1995 Exercise 1996 Exercise 1997 Exercise
Shares Price Shares Price Shares Price
--------- --------- --------- ---------- --------- ----------
<S> <C> <C> <C> <C> <C>
Outstanding at beginning of year . . . . . . . . . . 1,403,514 $1.67 1,526,778 $1.67 2,272,218 $ 2.65
Granted. . . . . . . . . . . . . . . . . . . . . . . 123,264 $1.67 745,440 $4.67 130,176 $ 17.64
Exercised. . . . . . . . . . . . . . . . . . . . . . -- -- -- -- (396,480) $ 1.67
Forfeited. . . . . . . . . . . . . . . . . . . . . . -- -- -- -- (12,000) $ 4.67
--------- --------- ---------
Outstanding at end of year . . . . . . . . . . . . . 1,526,778 $1.67 2,272,218 $2.65 1,993,914 $ 3.82
========= ========= =========
Exercisable at end of year . . . . . . . . . . . . . 760,235 $1.67 1,117,113 $1.67 1,163,944 $ 2.27
========= ========= =========
Weighted-average fair value of
options granted during the year . . . . . . . . . $1.08 $7.10 $ 12.11
</TABLE>
38
<PAGE>
The following summarizes information about options outstanding as of
December 31, 1997:
<TABLE>
<CAPTION>
OPTIONS OUTSTANDING OPTIONS EXERCISABLE
------------------------------------------- ------------------------
Average Weighted- Weighted-
Range of Remaining Average Average
Exercise Contractual Exercise Exercise
Prices Shares Life Prices Shares Prices
------------------------------------------ ------------------------
<S> <C> <C> <C> <C> <C>
$1.67 1,130,298 6.7 years $ 1.67 931,161 $1.67
$4.67 733,440 8.7 years $ 4.67 232,783 $4.67
$13.80-$16.10 47,088 9.3 years $14.88 -- --
$16.11-$18.40 59,088 9.5 years $17.66 -- --
$18.41-$23.00 24,000 9.6 years $23.00 -- --
----------- --------
1,993,914 7.6 years $ 3.82 1,163,944 $2.27
=========== ========
</TABLE>
In connection with the prior acquisitions, warrants to purchase 350,880
shares of Common Stock at $1.67 per share were issued to two individuals. The
warrants are exercisable through 2004. The Company has also issued a warrant
to one member of the Board of Directors to purchase 70,176 shares of Common
Stock at $1.67 per share, the fair value of the Common Stock on the date of
grant.
As allowed under the provisions of SFAS No. 123, "Accounting for
Stock-Based Compensation," the Company will continue to apply APB Opinion No.
25 and related interpretations in accounting for the stock options awarded
under the Company's 1996 plan. Accordingly, no compensation cost has been
recognized for these stock options except the expense relating to options
granted with an exercise price below the market value at the date of grant.
Had compensation cost for the Company's 1996 Plan been determined in
accordance with SFAS No. 123, the Company's net income and earnings per share
would have been reduced to the proforma amounts indicated below:
<TABLE>
<CAPTION>
Years ended December 31,
-----------------------------------------
1995 1996 1997
------------ ------------ -----------
<S> <C> <C> <C>
Income before extraordinary item:
As reported . . . . . . . . . . . . . . . . . . $9,499 $16,299 $23,003
Pro forma . . . . . . . . . . . . . . . . . . . $9,142 $15,982 $22,127
Basic earnings per common share:
As reported . . . . . . . . . . . . . . . . . . $ 0.69 $ 1.15 $ 1.31
Pro forma . . . . . . . . . . . . . . . . . . . $ 0.66 $ 1.13 $ 1.26
</TABLE>
The fair value of each option grant is estimated on the date of grant
using the Black-Scholes option-pricing model with weighted-average
assumptions for expected volatility of 51.31%, risk-free interest rates of
6.00% and expected option lives of 8.2 years for 1995, 1996 and 1997. The
Company has not paid and does not anticipate paying dividends; therefore, the
expected dividend yield is assumed to be zero.
The Black-Scholes option model was developed for use in estimating the
fair value of traded options that have no vesting restrictions and are fully
transferable. In addition, option valuation models require the input of
highly subjective assumptions including the expected stock price volatility.
Because the Company's employee stock options have characteristics
significantly different from those of traded options, and because changes in
the subjective input assumptions can materially affect the fair value
estimate, in management's opinion, the existing models do not necessarily
provide a reliable single measure of the fair value of its employee stock
options.
39
<PAGE>
NOTE 10. COMMON AND PREFERRED STOCK
On December 13, 1996, the Company amended and restated its charter to
increase its authorized Common Stock to 30,000,000 shares and consummated a
six-for-one stock split, and to increase its authorized Preferred Stock to
5,000,000 shares. The accompanying financial statements have been
retroactively adjusted to reflect the stock split.
On December 17, 1996 the Company sold 4,025,000 shares of Common Stock
through an initial public offering (Initial Public Offering). The price per
share for such Common Stock was $13.50 (Initial Public Offering Price). At
approximately the same time, the Company sold to General Electric Pension
Trust (GEPT) $12.0 million of Common Stock (955,794 shares) in a private
placement. The price per share for such privately placed Common Stock was the
price per share paid by the Underwriters in the Public Offering of $12.555
(the Initial Public Offering Price less Underwriters' discounts and
commissions).
On October 28, 1997, the Company completed a public offering of
3,650,000 shares of its common stock. The price per share for such Common
Stock was $23.25 (Public Offering Price). Of the shares sold in the offering,
2,200,000 shares were sold by the Company and 1,450,000 shares were sold by
certain stockholders. The Company did not receive any proceeds from the sale
of shares by the selling stockholders. The net proceeds to the Company of
approximately $47.9 million were used to repay a portion of the outstanding
indebtedness under the Company's revolving credit facility.
NOTE 11. EARNINGS PER SHARE
The following table sets forth the computation of basic and diluted
earnings per share:
<TABLE>
<CAPTION>
For the years ended December 31,
----------------------------------------
1995 1996 1997
------ ------ -------
<S> <C> <C> <C>
Numerator:
Net income. . . . . . . . . . . . . . . . . . . . $9,499 $16,299 $19,254
=========================================
Denominator:
Weighted-average common shares outstanding. . . . 12,000,000 12,203,021 17,496,173
Common shares issued from preferred stock . . . 1,774,597 1,948,767 --
-----------------------------------------
Denominator for basic earnings per common share. . 13,774,597 14,151,788 17,496,173
Effect of dilutive securities:
Employee stock options and warrants. . . . . . . 841,563 1,766,596 1,839,186
-----------------------------------------
Denominator for diluted earnings per
common share . . . . . . . . . . . . . . . . . . 14,616,160 15,918,384 19,335,359
=========================================
Basic earnings per common share. . . . . . . . . . . $0.69 $1.15 $1.10
=========================================
Diluted earnings per common share. . . . . . . . . . $0.65 $1.02 $0.99
=========================================
</TABLE>
The share calculations for 1995 and 1996 are based upon the Pro forma effects
from the estimated number of shares of Common Stock issued in the Company's
initial public offering whose net proceeds were used to redeem the
outstanding preferred stock including accrued dividends.
NOTE 12. EMPLOYEE RETIREMENT PLAN
The Company sponsors several defined contribution plans to provide
substantially all U.S. salaried and hourly employees of the Company an
opportunity to accumulate personal funds for their retirement, subject to
minimum duration of employment requirements. Contributions are made on a
before-tax basis to substantially all of these plans.
As determined by the provisions of each plan, the Company matches a portion
of the employees' basic voluntary contributions. Company matching contributions
to the plans were approximately $108, $206 and $359 for the plan years ending in
1995, 1996 and 1997, respectively.
40
<PAGE>
NOTE 13. COMMITMENTS AND CONTINGENCIES
The Company leases certain facilities under various operating lease
agreements, which expire on various dates through 2004. Facility leases that
expire generally are expected to be renewed or replaced by other leases. Future
minimum rental commitments under non-cancelable operating leases with terms in
excess of one year are as follows:
<TABLE>
<CAPTION>
YEAR ENDING DECEMBER 31,
- ------------------------
<S> <C>
1998. . . . . . . . . . . . . . . . . . . . . . . $ 7,917
1999. . . . . . . . . . . . . . . . . . . . . . . 7,300
2000. . . . . . . . . . . . . . . . . . . . . . . 6,036
2001. . . . . . . . . . . . . . . . . . . . . . . 4,123
2002. . . . . . . . . . . . . . . . . . . . . . . 4,596
Thereafter. . . . . . . . . . . . . . . . . . . . 7,303
-----------
$ 37,275
===========
</TABLE>
Rent expense for all operating leases approximated $3,115, $4,582 and
$7,228 for the years ended December 31, 1995, 1996 and 1997, respectively.
Rent expense includes amounts paid to related parties of $611, $940 and
$1,574 for the years ended December 31, 1995, 1996 and 1997, respectively.
The Company is subject to various evolving Federal, state, local and foreign
environmental laws and regulations governing, among other things, emissions to
air, discharge to waters and the generation, handling, storage, transportation,
treatment and disposal of a variety of hazardous and non- hazardous substances
and wastes. These laws and regulations provide for substantial fines and
criminal sanctions for violations and impose liability for the costs of cleaning
up, and certain damages resulting from, past spills, disposals or other releases
of hazardous substances.
In connection with the acquisition of certain subsidiaries, the Company
conducted certain investigations of these companies' facilities and their
compliance with applicable environmental laws. The investigations, which
included "Phase I" assessments by independent consultants of all manufacturing
and certain distribution facilities, found that certain facilities have had or
may have had releases of hazardous materials that may require remediation and
also may be subject to potential liabilities for contamination from off-site
disposal of substances or wastes. These assessments also found that certain
reporting and other regulatory requirements, including certain waste management
procedures, were not or may not have been satisfied. Although there can be no
assurance, the Company believes that, based in part on the investigations
conducted, in part on certain remediation completed prior to the acquisitions,
and in part on the indemnification provisions of the agreements entered into in
connection with the Company's acquisitions, the Company will not incur any
material liabilities relating to these matters.
The company from which RPM Merit ("RPM") acquired its assets (the "Prior RPM
Company") has been identified by the United States Environmental Protection
Agency (the "EPA") as one of many potentially responsible parties for
environmental liabilities associated with a "Superfund" site located in the area
of RPM's former manufacturing facilities and current distribution facility in
Azusa, California. The Federal Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended ("CERCLA" or "Superfund")
provides for cleanup of sites from which there has been a release or threatened
release of hazardous substances, and authorizes recovery of related response
costs and certain other damages from potentially responsible parties ("PRPs").
PRPs are broadly defined under CERCLA, and generally include present owners and
operators of a site and certain past owners and operators. As a general rule,
courts have interpreted CERCLA to impose strict, joint and several liability
upon all persons liable for cleanup costs. As a practical matter, however, at
sites where there are multiple PRPs, the costs of cleanup typically are
allocated among the PRPs according to a volumetric or other standard. The EPA
has preliminarily estimated that it will cost approximately $47 million to
construct and approximately $4 million per year for an indefinite period to
operate an interim remedial groundwater pumping and treatment system for the
part of the Superfund site within which RPM's former manufacturing facilities
and current distribution facility, as well as those of many other potentially
responsible parties, are located. The actual cost of this remedial action could
vary substantially
41
<PAGE>
from this estimate, and additional costs associated with the Superfund site
are likely to be assessed. The Company has significantly reduced its presence
at the site and has moved all manufacturing operations off-site. Since July
1995, the Company's only real property interest in this site has been the
lease of a 6,000 square foot storage and distribution facility. The RPM
acquisition agreement and the leases pursuant to which the Company leased
RPM's facilities after the Company acquired the assets of RPM (the "RPM
Acquisition") expressly provide that the Company did not assume any
liabilities for environmental conditions existing on or before the RPM
Acquisition, although the Company could become responsible for these
liabilities under various legal theories. The Company is indemnified against
any such liabilities by the seller of RPM as well as the Prior RPM Company
shareholders. There can be no assurance, however, that the Company would be
able to make any recovery under any indemnification provisions. Since the RPM
Acquisition, the Company has been engaged in negotiations with the EPA to
settle any liability that it may have for this site. Although there can be no
assurance, the Company believes that it will not incur any material liability
as a result of these environmental conditions.
NOTE 14. FAIR VALUE OF FINANCIAL INSTRUMENTS
The carrying amounts of all financial instruments approximate their fair
values at December 31, 1996 and 1997, except for the Series B and Series D
Senior Notes.
The fair values of the Company's Series B and Series D Senior Notes are
estimated using discounted cash flow analyses, based on the Company's current
incremental borrowing rates for similar types of borrowing arrangements.
The carrying amounts and fair values of these financial instruments at
December 31 are as follows:
<TABLE>
<CAPTION>
1996 1997
------------------- -----------------
Carrying Fair Carrying Fair
Amount Value Amount Value
-------- -------- -------- -------
<S> <C> <C> <C> <C>
Series B Senior Notes.............. $120,000 $126,900 $90,000 $98,811
Series D Senior Notes.............. 40,000 42,300 30,000 32,937
</TABLE>
NOTE 15. SIGNIFICANT CUSTOMER
For the years ended December 31, 1995, 1996 and 1997 sales to one customer
accounted for 35%, 37% and 32% of net sales, respectively. Additionally, at
December 31, 1995, 1996 and 1997 this customer accounted for approximately 46%,
51% and 45% of accounts receivable, respectively. No other customer accounted
for more than 10% of net sales in any period.
NOTE 16. EXTRAORDINARY ITEM
The extraordinary item of $3.8 million, net of income tax benefit of $2.5
million, consists largely of a pre-tax charge of $5.7 million related to the
early redemption of $40 million in principal amount of the Company's Senior
Notes, consisting of the early redemption premium charge of $4.3 million plus
unamortized deferred financing fees of $1.4 million. The extraordinary item
also includes a pre-tax charge of $0.6 million related to the restructuring of
the Company's revolving credit facility. Both events occurred in February 1997.
42
<PAGE>
NOTE 17. SUBSEQUENT EVENTS
On March 6, 1998, the Company acquired substantially all the assets of the
OEM Division of Autocraft Industries, Inc. ("Autocraft"), a remanufacturer and
distributor of drivetrain and electronic parts used in the warranty and
aftermarket repair of passenger cars and light trucks. The cash purchase price
for the acquisition consists of $112.5 million paid at closing, plus up to an
additional $12.5 million to be paid in 1999 based on the performance of the OEM
Division's European operations during 1998. The transaction is being accounted
for using the purchase method of accounting and goodwill recorded (estimated to
be approximately $60-70 million, which would increase by up to an additional
$12.5 million dependent on the potential 1999 payment described above) will be
amortized over 40 years on a straight-line method beginning on the date of
acquisition.
In March 1998, the credit agreement for the Credit Facility was amended and
restated as a new credit facility comprised of a $100 million revolving portion
and a $120 million term loan portion with The Chase Manhattan Bank, as agent,
(the "New Credit Facility") to finance the Company's working capital
requirements, future acquisitions and the acquisition of Autocraft. Amounts
advanced under the revolving portion of the New Credit Facility are secured by
substantially all assets of the Company and will become due on December 31,
2003, although the Company may prepay outstanding advances in whole or in part
without incurring any premium or penalty. The term loan portion of the New
Facility is due and payable in quarterly installments beginning in September
1998 and ending on December 31, 2003 as outlined in the agreement. The New
Credit Facility contains several covenants, including levels of net worth,
leverage, EBITDA and cash flow coverage, and certain limitations on the
Company's ability to incur indebtedness, make capital expenditures, create
liens, engage in mergers and consolidations, make restricted payments (including
dividends), make asset sales, make investments, issue stock and engage in
transactions with affiliates of the Company and its subsidiaries.
NOTE 18. SELECTED QUARTERLY FINANCIAL DATA (UNAUDITED)
<TABLE>
<CAPTION>
Quarter
------------------------------------
First Second Third Fourth
------- ------- ------- -------
<S> <C> <C> <C> <C>
1995
- ----
Net sales............................... $40,638 $45,094 $46,740 $58,187
Gross profit............................ 15,668 18,066 16,686 24,740
Net income.............................. 1,953 2,924 1,344 3,278
Pro forma earnings per share............ $0.14 $0.20 $0.09 $0.22
1996
- ----
Net sales............................... $64,146 $66,873 $68,287 $73,572
Gross profit............................ 25,788 25,063 25,998 29,219
Net income.............................. 4,399 3,891 4,051 3,958
Pro forma earnings per share............ $0.28 $0.25 $0.26 $0.23
1997
- ----
Net sales............................... $82,688 $85,410 $88,392 $89,620
Gross profit............................ 31,575 33,363 33,873 34,883
Income before extraordinary item........ 5,567 5,912 5,652 5,872
Diluted earnings per share.............. $0.29 $0.31 $0.30 $0.29
</TABLE>
43
<PAGE>
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT.
DIRECTORS AND EXECUTIVE OFFICERS
The directors and executive officers of the Company are as follows:
<TABLE>
<CAPTION>
NAME AGE POSITIONS
- ---- --- ---------
<S> <C> <C>
Stephen J. Perkins 50 Chairman of the Board, President and
Chief Executive Officer
Ronald E. Bradshaw 53 Executive Vice President
John C. Kent 46 Chief Financial Officer
John J. Machota 46 Vice President--Human Resources
Joseph Salamunovich 38 Vice President, General Counsel and
Secretary
Kenneth A. Bear 44 President, Aaron's Automotive
Products, Inc.
James D. Carey 58 President, Autocraft Electronics
Wesley N. Dearbaugh 46 President, ATC Distribution Group
Thomas R. Kawsky 49 President, Autocraft Industries
Michael L. LePore 44 President, Component Remanufacturing
Specialists, Inc.
Robert Anderson 77 Director
Richard R. Crowell 43 Director
Dale F. Frey 65 Director
Mark C. Hardy 34 Director
Dr. Michael J. Hartnett 52 Director
Gerald L. Parsky 55 Director
Richard K. Roeder 49 Director
William A. Smith 52 Director and Chairman Emeritus of the
Board of Directors
J. Richard Stonesifer 61 Director
</TABLE>
STEPHEN J. PERKINS joined the Company as President and Chief Executive
Officer in October 1996 and became Chairman of the Board of Directors in
August 1997. From February 1992 to October 1996, Mr. Perkins was President
and Chief Executive Officer of Senior Flexonics, an international division of
Senior Engineering, plc. Senior Flexonics included 20 operations in 13
countries which manufactured and distributed engineered flexible tubular
products for the automotive, aerospace and industrial markets. From
September 1983 to February 1992, Mr. Perkins was President and Chief
Executive Officer of Flexonics, Inc., the privately held predecessor of
Senior Flexonics. Prior to that, Mr. Perkins held various positions with the
Flexonics Division of what is now Allied Signal Inc. and several management
positions in manufacturing at multiple facilities for the Steel Tubing Group
of Copperweld Corporation.
RONALD E. BRADSHAW became Executive Vice President of the Company in
March 1998 following the completion of the Company's acquisition of Autocraft
from Fred Jones Enterprises, Inc. (which was formerly known as Autocraft
Industries, Inc.) ("Fred Jones Enterprises"). Prior to that, Mr. Bradshaw
served as President and Chief Operating Officer of Fred Jones Enterprises
since October 1997 and as Senior Vice President and Chief Financial Officer
from 1994 to 1997 and as Treasurer from 1990 to 1994.
JOHN C. KENT became Chief Financial Officer of the Company in July 1994.
From March 1990 to July 1994, Mr. Kent was Vice President, Finance and Chief
Financial Officer of Aerotest, Inc., an aircraft maintenance and modification
company. In March 1995, Aerotest filed a voluntary petition for relief under
Chapter 11 of the United States Bankruptcy Code. The Aerotest bankruptcy
proceedings are still pending. From 1987 to March 1990, Mr. Kent was an
Assistant Treasurer at Security Pacific Auto Finance. From 1978 to 1987 Mr.
Kent served in several capacities at Western Airlines, Inc., including
Director of Cash and Risk Management.
44
<PAGE>
JOHN J. MACHOTA joined the Company as Vice President--Human Resources in
June 1997. From 1996 to 1997, he was a self-employed human resources
consultant. From 1995 to 1996, Mr. Machota was Vice President--Compensation
for Waste Management, Inc. and from 1993 to 1995 served as Waste Management's
Vice President--Human Resource Services. From 1986 to 1993 Mr. Machota was
Vice President--Human Resources for a subsidiary of Waste Management and
prior to that held various other positions in the human resources area.
JOSEPH SALAMUNOVICH joined the Company as Vice President, General
Counsel and Secretary in March 1997. From January 1995 to March 1997, Mr.
Salamunovich was a partner in the law firm of Gibson, Dunn & Crutcher LLP,
where he specialized in corporate and securities law matters. From 1986 to
1995, Mr. Salamunovich was an associate of the same firm.
KENNETH A. BEAR became President of Aaron's in February 1998. Prior to
that he held various other positions with Aaron's, including Executive Vice
President since 1989. Mr. Bear joined Aaron's in 1983.
JAMES D. CAREY became President of Autocraft Electronics in March 1998
following the Autocraft Acquisition. Prior to that he served as Senior Vice
President of Fred Jones Enterprises since March 1997. Before joining Fred
Jones, Mr. Carey was employed for 32 years by Ford Motor Company, where he
served most recently as Manager of North American Parts Supply and Logistics
for the Ford Customer Service Division.
WESLEY N. DEARBAUGH joined ATC as President of the ATC Distribution
Group in June 1996. From 1993 to June 1996, Mr. Dearbaugh was a Partner and
Vice President of Marketing for Cummins, S.W., a multi-branch distributor of
heavy duty parts and service. From 1992 to 1993, he was Vice President of
Marketing for SEI, a large pension consulting firm. From 1983 to 1992, Mr.
Dearbaugh held senior management and partner positions in value investment
funds and limited partnerships. From 1979 to 1983, Mr. Dearbaugh held
positions at Cummins Diesel ReCon, Cummins Engine Company's Aftermarket
Remanufacturing Division including General Manager of Fuel Systems,
Director-Product Management, and Manager of Sales & Marketing. From 1974 to
1979, Mr. Dearbaugh held several positions in industrial engineering and
technical sales at Atlas Crankshaft, a manufacturing division of Cummins
Engine Company.
THOMAS R. KAWSKY became President of Autocraft Industries in March 1998
following the Autocraft Acquisition. Prior to that he served as Vice
President and General Manager of the OEM Division of Fred Jones Enterprises
since October 1997 and before joining Fred Jones he served as Vice
President--Manufacturing for the G&O Division of TransPro, Inc. since March
1997. Prior to that, Mr. Kawsky was employed by Cummins Engine Company for
26 years, where he served most recently as General Manager--Engines for the
Cummins Diesel ReCon Division.
MICHAEL L. LEPORE has been President of CRS since 1984. From 1976 to
1984 Mr. LePore was manager of U.S. Operations for Borg Warner Parts and
Service Division, a subsidiary of Borg Warner LTD U.K.
ROBERT ANDERSON became a director of the Company in March 1997. Mr.
Anderson has been associated with Rockwell International Corporation since
1968, where he has been Chairman Emeritus since 1990 and served previously as
Chairman of the Executive Committee from 1988 to 1990 and as Chairman of the
Board and Chief Executive Officer from 1979 to 1988. Mr. Anderson is a
director of Gulfstream Aerospace Corporation, Motor Cargo Industries, Inc.,
Optical Data Systems Company and The Timken Company.
RICHARD R. CROWELL became a director of the Company in July 1994. Mr.
Crowell is President and a founding partner of ACP. Prior to forming ACP in
1991, Mr. Crowell was a Managing Director of Rosecliff, Inc., the management
company for Acadia Partners L.P. since its inception in 1987.
DALE F. FREY became a director of the Company in August 1997. Prior to
his retirement in early 1997, Mr. Frey was Chairman of the Board, President
and Chief Executive Officer of General Electric Investment Corporation, a
position he had held since 1984, and a Vice President of General Electric
Company since 1980. Mr. Frey is a director of USF&G Corporation, Praxair,
Inc., First American Financial Corporation, Roadway Express and Promus Hotel
Corp.
45
<PAGE>
MARK C. HARDY became a director of the Company in July 1994. Mr. Hardy
is a Principal of ACP and joined ACP in June 1993. Prior to joining ACP, Mr.
Hardy was an Associate at Bain & Company, a consulting firm.
DR. MICHAEL J. HARTNETT became a director of the Company in July 1994.
Since March 1992 Dr. Hartnett has been Chairman, President and Chief
Executive Officer of Roller Bearing Company of America, Inc., a manufacturer
of ball and roller bearings. Prior to joining Roller Bearing in 1990 as
General Manager of its Industrial Tectonics subsidiary, Dr. Hartnett spent 18
years with The Torrington Company, a bearing manufacturer.
GERALD L. PARSKY became a director of the Company in March 1997. Mr.
Parsky is the Chairman and a founding partner of ACP. Prior to forming ACP
in 1991, Mr. Parsky was a senior partner and a member of the Executive and
Management Committees of the law firm of Gibson, Dunn & Crutcher LLP. Prior
to that, he served as an official with the United States Treasury Department
and the Federal Energy Office, and as Assistant Secretary of the Treasury for
International Affairs.
RICHARD K. ROEDER became a director of the Company in July 1994. Mr.
Roeder is a founding partner and Managing Director of ACP. Prior to forming
ACP in 1991, Mr. Roeder was a partner in the law firm of Paul, Hastings,
Janofsky & Walker, where he served as Chairman of the firm's Corporate Law
Department and a member of its National Management Committee.
WILLIAM A. SMITH has been a director and Chairman Emeritus of the Board
of Directors since August 1997 and prior to that served as Chairman of the
Board since July 1994. Mr. Smith was the President and Chief Executive
Officer of the Company from July 1994 until October 1996. From March 1993 to
July 1994, Mr. Smith served as a consultant to ACP in connection with the
Initial Acquisitions. From March 1992 to March 1993, Mr. Smith was President
of the Rucker Fluid Power Division of Lucas Industries, plc. Prior to that,
Mr. Smith held various positions with Navistar International Transportation
Corporation, Labinal, Inc. (a French automotive and aerospace equipment
manufacturer) and Cummins Engine Company.
J. RICHARD STONESIFER became a director of the Company in August 1997.
Prior to his retirement in 1996, Mr. Stonesifer was employed with the General
Electric Company for 37 years, serving most recently as President and Chief
Executive Officer of GE Appliances, and an executive officer and Senior Vice
President of the General Electric Company, from January 1992 until his
retirement. Mr. Stonesifer is also a director of Grand Union Co.
DIRECTOR NOMINEE
Fred J. Hall has been nominated to fill a newly created directorship
resulting from the directors' expansion of the Board of Directors from 10 to
11 members effective May 6, 1998. Mr. Hall is Chairman of the Board,
President and Chief Executive Officer of Fred Jones Enterprises, which in
March 1998 completed the sale of Autocraft to the Company. In addition to
being employed in various capacities by Fred Jones Enterprises and its
affiliates since 1977, Mr. Hall served as Deputy Assistant Secretary of State
for European and Canadian Affairs from 1986 to 1988. Mr. Hall is 46 years
old.
SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE.
Section 16(a) of the Securities Exchange Act of 1934, as amended,
requires the Company's officers, directors and persons who own more than 10%
of any equity security of the Company to file reports of ownership and
changes in ownership with the Securities and Exchange Commission and to
furnish copies of these reports to the Company. Based solely on a review of
the copies of the forms that the Company received, the Company believes that
Forms 4 were not timely filed on July 10, 1997 by Mr. LePore and on November
10, 1997 by Mr. Smith, in each case to report the exercise of stock options.
These oversights were subsequently corrected when Mr. LePore reported his
transaction in a Form 4 filed in December 1997 and Mr. Smith reported his
transaction in a Form 5 filed in February 1998.
46
<PAGE>
ITEM 11. EXECUTIVE COMPENSATION
SUMMARY COMPENSATION TABLE
The following table sets forth, for the three most recently completed
fiscal years, the cash compensation for services in all capacities to the
Company of those persons who were, as of December 31, 1997, (i) the Company's
Chief Executive Officer, (ii) the four other most highly compensated
executive officers of the Company and its subsidiaries during the last fiscal
year, and (iii) the Chairman Emeritus of the Company's Board of Directors
(collectively, the "Named Executive Officers"):
<TABLE>
<CAPTION>
Long-Term
Annual Compensation
Compensation Awards
------------------------- --------------
Number
of Securities
Underlying All Other
Name and Principal Position Year Salary(1) Bonus(2) Options (#)(3) Compensation
- --------------------------- ---- --------- -------- -------------- ------------
<S> <C> <C> <C> <C> <C>
Stephen J. Perkins 1997 $300,000 $225,000 -- --
Chairman of the Board, President 1996 70,385 125,000 498,000 --
and Chief Executive Officer(4) 1995 -- -- -- --
James R. Wehr 1997 282,728 154,086 35,088 --
President, Aaron's(5) 1996 282,297 300,000 -- --
1995 258,000 -- -- --
Michael L. LePore 1997 232,425 71,377 -- --
President, CRS 1996 226,520 181,745 -- --
1995 160,838(6) 179,038(7) 70,176 --
Wesley N. Dearbaugh 1997 200,000 47,400 -- --
President, ATC Distribution 1996 116,457 50,000 140,352 --
Group 1995 -- -- -- --
John C. Kent 1997 150,000 75,000 -- 25,000(8)
Chief Financial Officer 1996 127,918 100,000 35,088 --
1995 124,615 12,000 -- --
William A. Smith 1997 242,081 -- -- --
Chairman Emeritus of the 1996 319,196 315,803 -- --
Board of Directors(9) 1995 300,000 -- -- --
_______________
</TABLE>
(1) For information regarding the salary of certain Named Executive Officers in
1998, see "Executive Compensation--Employment Agreements."
(2) Bonuses for a particular year are paid during the first quarter of the
following year.
(3) Consists of options to purchase securities of the Company, which options
were issued pursuant to the Company's 1996 Stock Incentive Plan. Pursuant
to the 1996 Stock Incentive Plan, the Compensation and Human Resources
Committee makes recommendations to the Board of Directors regarding the
terms and conditions of each option granted.
(4) Mr. Perkins joined the Company as President and Chief Executive Officer in
October 1996 and was appointed Chairman of the Board in August 1997.
(5) Mr. Wehr ceased to be President of Aaron's in February 1998.
(6) Includes five months' salary of $56,777 prior to the acquisition of CRS by
the Company in April 1995.
(7) Includes $86,759 of bonus earned prior to the acquisition of CRS by the
Company in April 1995.
(8) Consists of a one-time bonus paid in connection with Mr. Kent's relocation
from Washington to Illinois.
(9) Mr. Smith served as the Company's President and Chief Executive Officer
until October 1996 and as the Chairman of the Board until August 1997. In
August 1997 his annual salary was adjusted from $326,224 to $126,224.
47
<PAGE>
OPTION GRANTS TABLE
Shown below is information concerning grants of options issued by the
Company to the Named Executive Officers during 1997:
<TABLE>
<CAPTION>
Individual Grants Potential
------------------------------- Realizable Value at
Number of % of Total Assumed Annual Rates of
Securities Options Stock Price Appreciation
Underlying Granted to Exercise For Option Term(1)
Options Granted Employees in Price Expiration -------------------------
Name (#) Fiscal Year ($/Share) Date 5% ($) 10% ($)
- ------------------------------ --------------- ------------- --------- ---------- -------- ---------
<S> <C> <C> <C> <C> <C> <C>
Stephen J. Perkins . . . . . . -- -- -- -- -- --
James R. Wehr. . . . . . . . . 35,088(2) 27.0% $17.25 1/1/07 $380,650 $964,641
Michael L. LePore. . . . . . . -- -- -- -- -- --
Wesley N. Dearbaugh. . . . . . -- -- -- -- -- --
John C. Kent . . . . . . . . . -- -- -- -- -- --
William A. Smith . . . . . . . -- -- -- -- -- --
</TABLE>
_____________
(1) The potential gains shown are net of the option exercise price and do not
include the effect of any taxes associated with exercise. The amounts
shown are for the assumed rates of appreciation only, do not constitute
projections of future stock price performance, and may not necessarily be
realized. Actual gains, if any, on stock option exercises depend on the
future performance of the Common Stock, continued employment of the
optionee through the term of the options, and other factors.
(2) These options were granted under the Company's 1996 Stock Incentive Plan.
One third of the options vest and become exercisable on each of January 1,
1998, 1999 and 2000 and expire on January 1, 2007.
AGGREGATED OPTION EXERCISES AND YEAR-END OPTION VALUE TABLE
Shown below is information relating to the exercise of stock options during
1997 by the Named Executive Officers and the value of unexercised options for
each of the Named Executive Officers as of December 31, 1997:
<TABLE>
<CAPTION>
Number of Securities Value of Unexercised
Underlying Unexercised In-The-Money Options
Shares Options at Fiscal Year-End at Fiscal Year-End (1)
Acquired on Value ---------------------------- -----------------------------
Name Exercise Realized Exercisable Unexercisable Exercisable Unexercisable
- ------------------------------ ---------- ---------- ----------- ------------- ----------- -------------
<S> <C> <C> <C> <C> <C> <C>
Stephen J. Perkins . . . . . . -- -- 166,000 332,000 $2,233,530 $4,467,060
James R. Wehr. . . . . . . . . 70,000 $1,370,600 70,352(2) 35,088 1,157,642 30,702
Michael L. LePore. . . . . . . 35,088 581,759 -- 35,088 -- 577,373
Wesley N. Dearbaugh. . . . . . -- -- 35,087 105,265 472,096 1,416,341
John C. Kent . . . . . . . . . -- -- 58,480 46,784 927,200 699,655
William A. Smith . . . . . . . 230,000 4,826,272 612,106(3) -- 10,072,204 --
</TABLE>
__________________
(1) Calculated using the closing price on December 31, 1997 of
$18.125 per share.
(2) These options were exercised in January 1998.
(3) 147,500 of these options were exercised during the first two months
of 1998.
EMPLOYMENT AGREEMENTS
Stephen J. Perkins entered into a three year employment agreement with
the Company effective as of October 7, 1996, pursuant to which he serves as
Chairman of the Board, President and Chief Executive Officer of the Company
at a current annual salary of $335,000. The employment agreement with Mr.
Perkins contains a noncompete provision for a period of 18 months from the
cessation of his employment with the Company and a nondisclosure provision
which is effective for the term of the employment agreement and indefinitely
thereafter.
48
<PAGE>
Mr. Perkins is also entitled to participate in any bonus, incentive or other
benefit plans provided by the Company to its employees.
James R. Wehr entered into an employment agreement with Aaron's
effective as of August 2, 1994, pursuant to which he served as President of
Aaron's until February 1998 when he stepped down as an officer. Mr. Wehr
will continue as an employee of Aaron's until the end of 1998 at an annual
salary of $287,534. The employment agreement and related agreements with Mr.
Wehr contain a noncompete provision for a period ending August 1, 1999 and a
nondisclosure provision which is effective for the term of his employment
with Aaron's and indefinitely thereafter. Mr. Wehr is also entitled to
participate in any bonus, incentive or other benefit plans provided by
Aaron's to its employees.
Michael L. LePore entered into a three year employment agreement with
CRS effective as of June 1, 1995, pursuant to which he serves as President of
CRS at a current annual salary of 236,376. The employment agreement and
related agreements with Mr. LePore contain a noncompete provision for a
period ending June 1, 2002 and a nondisclosure provision which is effective
for the term of his employment with CRS and indefinitely thereafter. Mr.
LePore is also entitled to participate in any bonus, incentive or other
benefit plans provided by CRS to its employees.
John C. Kent entered into a three year employment agreement with the
Company effective as of October 1, 1996, pursuant to which he serves as Chief
Financial Officer of the Company at a current annual salary of $165,000. The
employment agreement with Mr. Kent contains a noncompete provision for a
period of 18 months from the cessation of his employment with the Company and
a nondisclosure provision which is effective for the term of the employment
agreement and indefinitely thereafter. Mr. Kent is also entitled to
participate in any bonus, incentive or other benefit plans provided by the
Company to its employees.
William A. Smith entered into an employment agreement with the Company
effective as of August 1, 1997 pursuant to which he serves as Chairman
Emeritus of the Board of Directors of the Company until December 31, 1998 at
a current annual salary of $126,224. The employment agreement with Mr. Smith
contains a noncompete provision for a period of 18 months from the cessation
of his employment with the Company and a nondisclosure provision which is
effective for the term of the employment agreement and indefinitely
thereafter. This agreement replaced an earlier employment agreement with the
Company pursuant to which Mr. Smith served as Chairman of the Board,
President and Chief Executive Officer of the Company at an annual salary of
$316,000 (subject to cost of living adjustments).
Ronald E. Bradshaw entered into a three year employment agreement with
the Company effective as of March 6, 1998, pursuant to which he serves as
Executive Vice President of the Company at a current annual salary of
$275,000. The employment agreement with Mr. Bradshaw contains a noncompete
provision for a period of 18 months from the cessation of his employment with
the Company and a nondisclosure provision which is effective for the term of
the employment agreement and indefinitely thereafter. Mr. Bradshaw is also
entitled to participate in any bonus, incentive or other benefit plans
provided by the Company to its employees.
Joseph Salamunovich entered into a three year employment agreement with
the Company effective as of March 17, 1997, pursuant to which he serves as
Vice President, General Counsel and Secretary of the Company at a current
annual salary of $173,000. The employment agreement with Mr. Salamunovich
contains a noncompete provision for a period of 18 months from the cessation
of his employment with the Company and a nondisclosure provision which is
effective for the term of the employment agreement and indefinitely
thereafter. Mr. Salamunovich is also entitled to participate in any bonus,
incentive or other benefit plans provided by the Company to its employees.
Kenneth A. Bear entered into an employment agreement with Aaron's
effective as of July 28, 1994, pursuant to which he serves as President of
Aaron's at a current annual salary of $180,000. The employment agreement
with Mr. Bear contains a nondisclosure provision which is effective for the
term of his employment with Aaron's and indefinitely thereafter. Mr. Bear is
also entitled to participate in any bonus, incentive or other benefit plans
provided by Aaron's to its employees.
49
<PAGE>
1996 STOCK INCENTIVE PLAN
Upon completion of the Reorganization, the Company assumed the Amended
and Restated 1994 Stock Incentive Plan of Holdings and renamed it the 1996
Stock Incentive Plan (the "Stock Plan"). Pursuant to the Stock Plan,
officers, directors, employees and consultants of the Company and its
subsidiaries are eligible to receive options to purchase Common Stock and
other awards. The Stock Plan is administered by the Compensation and Human
Resources Committee, which has broad authority in administering and
interpreting the Stock Plan. Awards are not restricted to any specified form
or structure and may include, without limitation, sales or bonuses of stock,
restricted stock, stock options, reload stock options, stock purchase
warrants, other rights to acquire stock, securities convertible into or
redeemable for stock, stock appreciation rights, phantom stock, dividend
equivalents, performance units or performance shares. Options granted to
employees under the Stock Plan may be options intended to qualify as
incentive stock options under Section 422 of the Internal Revenue Code of
1986, as amended, or options not intended to so qualify. An award granted
under the Stock Plan to an employee or independent contractor may include a
provision terminating the award upon termination of employment under certain
circumstances or accelerating the receipt of benefits upon the occurrence of
specified events, including, at the discretion of the Compensation and Human
Resources Committee, any change of control of the Company.
As of February 27, 1998, there were outstanding options to purchase an
aggregate of 1,678,892 shares of Common Stock granted to officers and
employees of the Company and its subsidiaries and certain independent
contractors pursuant to the Existing Stock Plan. The exercise price of these
options are as follows:
<TABLE>
<CAPTION>
NUMBER OF OPTION SHARES Exercise Price
----------------------- --------------
<S> <C>
839,276 $ 1.67
733,440 4.67
35,088 14.75
12,000 15.25
35,088 17.25
24,000 18.25
</TABLE>
Each option is subject to certain vesting provisions and expires on the
tenth anniversary of the date of grant. As of February 27, 1998, the number
of shares available for issuance pursuant to options yet to be granted under
the Existing Stock Plan was 33,606. For certain information regarding
options granted to officers of the Company, see Item 12. "Security Ownership
of Certain Beneficial Owners and Management."
COMPENSATION AND HUMAN RESOURCES COMMITTEE INTERLOCKS AND
INSIDER PARTICIPATION IN COMPENSATION DECISIONS
The members of the Compensation and Human Resources Committee are
Messrs. Crowell, Parsky and Stonesifer. Messrs. Crowell and Parsky are (i)
two of the three stockholders and directors of Aurora Advisors, Inc., the
general partner of ACP, which is the general partner of Aurora Equity
Partners, a significant stockholder of the Company, and (ii) two of the three
stockholders and directors of Aurora Overseas Advisors, Ltd., the general
partner of Aurora Overseas Capital Partners L.P., the general partner of
Aurora Overseas Equity Partners I, L.P., also a significant stockholder of
the Company. See Item 12. "Security Ownership of Certain Beneficial Owners
and Management." In addition, Messrs. Crowell and Parsky are two of the
three managing directors of ACP, which provides management services to the
Company pursuant to a management services agreement. See Item 13. "Certain
Relationships and Related Transactions."
50
<PAGE>
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth the beneficial ownership of each class of
issued and outstanding voting securities of the Company, as of February 27,
1998, by each director and director nominee of the Company, each of the Named
Executive Officers, the directors and executive officers of the Company as a
group and each person who at such time was known by the Company to
beneficially own more than 5% of the outstanding shares of any class of
voting securities of the Company.
<TABLE>
<CAPTION>
Number of Voting
Shares (1) Percentage
------------ -----------
<S> <C> <C>
Aurora Equity Partners L.P. (other beneficial owners: Richard R.
Crowell, Gerald L. Parsky and Richard K. Roeder)(2)(3). . . . . . . . . 9,273,598 46.7
Aurora Overseas Equity Partners I, L.P. (other beneficial owners:
Richard R. Crowell, Gerald L. Parsky and Richard K. Roeder)(3)(4) . . . 3,683,660 18.5
General Electric Pension Trust(5). . . . . . . . . . . . . . . . . . . . . 1,825,652 9.2
Stephen J. Perkins(6)(7) . . . . . . . . . . . . . . . . . . . . . . . . . 167,000 *
John C. Kent(7)(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59,480 *
Wesley N. Dearbaugh(7)(9). . . . . . . . . . . . . . . . . . . . . . . . . 36,088 *
Michael L. LePore(10). . . . . . . . . . . . . . . . . . . . . . . . . . . 36,688 *
James R. Wehr(11). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 718,548 3.6
Robert Anderson(12). . . . . . . . . . . . . . . . . . . . . . . . . . . . 14,628 *
Richard R. Crowell(2)(4)(13)(14) . . . . . . . . . . . . . . . . . . . . . 10,335,468 52.0
Dale F. Frey(15) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -- --
Mark C. Hardy(13)(14)(16). . . . . . . . . . . . . . . . . . . . . . . . . 12,460 *
Dr. Michael J. Hartnett(17). . . . . . . . . . . . . . . . . . . . . . . . 70,176 *
Gerald L. Parsky(2)(4)(13)(14)(18) . . . . . . . . . . . . . . . . . . . . 10,335,468 52.0
Richard K. Roeder(2)(4)(13)(14). . . . . . . . . . . . . . . . . . . . . . 10,335,468 52.0
J. Richard Stonesifer(19). . . . . . . . . . . . . . . . . . . . . . . . . -- --
William A. Smith(20) . . . . . . . . . . . . . . . . . . . . . . . . . . . 698,484 3.7
Fred J. Hall(21) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21,600 *
All directors and officers as a group (20 persons)(22) . . . . . . . . . . 12,186,712 58.8
</TABLE>
_______________
* Less than 1%.
(1) The shares of Common Stock underlying options or warrants that are
exercisable as of February 27, 1998 or that will become exercisable within
60 days thereafter are deemed to be outstanding for the purpose of
calculating the beneficial ownership of the holder of such options or
warrants, but are not deemed to be outstanding for the purpose of computing
the beneficial ownership of any other person.
(2) Consists of (i) 6,651,808 shares owned by AEP (one of the Aurora
Partnerships), (ii) 1,825,652 shares owned by the General Electric Pension
Trust ("GEPT") (See Note (5) below) and (iii) 796,138 shares that are
subject to an irrevocable proxy granted to the Aurora Partnerships by
certain holders of Common Stock, including Messrs. Crowell, Hardy, Parsky
and Roeder, certain other limited partners of AEP and certain affiliates of
a limited partner of AOEP (the other Aurora Partnership). The proxy
terminates upon the transfer of such shares. AEP is a Delaware limited
partnership the general partner of which is ACP, a Delaware limited
partnership whose general partner is Aurora Advisors, Inc. ("AAI").
Messrs. Crowell, Parsky and Roeder are the sole stockholders and directors
of AAI, are limited partners of ACP and may be deemed to beneficially share
ownership of the Company's Common Stock beneficially owned by AEP and may
be deemed to be the organizers of the Company under regulations promulgated
under the Securities Act of 1933.
(3) The address for this beneficial holder is West Wind Building, P.O. Box
1111, Georgetown, Grand Cayman, Cayman Islands, B.W.I.
51
<PAGE>
(4) Consists of (i) 1,061,870 shares owned by AOEP, (ii) 1,825,652 shares owned
by GEPT (See Note (5) below) and (iii) 796,138 shares that are subject to
an irrevocable proxy granted to AEP and AOEP by certain holders of Common
Stock, including Messrs. Crowell, Hardy, Parsky and Roeder, certain other
limited partners of AEP and certain affiliates of a limited partner of
AOEP. The proxy terminates upon the transfer of such shares. AOEP is a
Cayman Islands limited partnership the general partner of which is Aurora
Overseas Capital Partners, L.P. ("AOCP"), a Cayman Islands limited
partnership whose general partner is Aurora Overseas Advisors, Ltd.
("AOAL"). Messrs. Crowell, Parsky and Roeder are the sole stockholders and
directors of AOAL, are limited partners of AOCP and may be deemed to
beneficially own the shares of the Company's Common Stock beneficially
owned by AOEP.
(5) With limited exceptions, GEPT has agreed to vote these shares in the same
manner as the Aurora Partnerships vote their respective shares of the
Company's Common Stock. This provision terminates upon the transfer of
such shares. The address of GEPT is 3003 Summer Street, Stamford, CT
06905.
(6) Includes 166,000 shares of Common Stock subject to options granted under
the Stock Plan that are exercisable as of February 27, 1998 or that will
become exercisable within 60 days thereafter. Excludes 332,000 shares of
Common Stock subject to options granted under the Stock Plan that are not
exercisable within 60 days of February 27, 1998.
(7) The address for this beneficial holder is 900 Oakmont Lane, Suite 100,
Westmont, IL 60559.
(8) Includes 58,480 shares of Common Stock subject to options granted under the
Stock Plan that are exercisable as of February 27, 1998 or that will become
exercisable within 60 days thereafter. Excludes 46,784 shares of Common
Stock subject to options granted under the Stock Plan that are not
exercisable within 60 days of February 27, 1998.
(9) Includes 35,088 shares of Common Stock subject to options granted under the
Stock Plan that are exercisable as of February 27, 1998 or that will become
exercisable within 60 days thereafter. Excludes 105,264 shares of Common
Stock subject to options granted under the Stock Plan that are not
exercisable within 60 days of February 27, 1998.
(10) Excludes 35,088 shares of Common Stock subject to options granted under the
Stock Plan that are not exercisable within 60 days of February 27, 1998.
Mr. LePore's address is 400 Corporate Drive, Mahwah, NJ 07430.
(11) Includes 11,696 shares of Common Stock subject to options granted under the
Stock Plan that are exercisable as of February 27, 1998 or that will become
exercisable within 60 days thereafter. Excludes 23,392 shares of Common
Stock subject to options granted under the Stock Plan that are not
exercisable within 60 days of February 27, 1998. Mr. Wehr's address is
2699 North Westgate, Springfield, MO 65803.
(12) Includes 4,290 shares held by Mr. Anderson's wife (including 2,790 shares
held by her as trustee for her relatives), as to which Mr. Anderson
disclaims beneficial ownership. Excludes 12,000 shares of Common Stock
subject to options granted under the Stock Plan that are not exercisable
within 60 days of February 27, 1998. Mr. Anderson's address is
10877 Wilshire Boulevard, Suite 1405, Los Angeles, CA 90024-4341.
(13) The address for this beneficial holder is 1800 Century Park East,
Suite 1000, Los Angeles, CA 90067.
(14) The shares actually held by this person (as distinguished from the shares
that this person is deemed to beneficially own) are subject to an
irrevocable proxy granted to the Aurora Partnerships.
(15) Excludes 12,000 shares of Common Stock subject to options granted under the
Stock Plan that are not exercisable within 60 days of February 27, 1998.
Mr. Frey's address is One Gorham Island, Westport, CT 06880.
(16) Includes 4,000 shares of Common Stock subject to options granted under the
Stock Plan that are exercisable as of February 27, 1998 or that will become
exercisable within 60 days thereafter. Excludes 8,000 shares of Common
Stock subject to options granted under the Stock Plan that are not
exercisable within 60 days of February 27, 1998.
52
<PAGE>
(17) Consists of shares of Common Stock subject to exercisable warrants. Mr.
Hartnett's address is 60 Round Hill Road, Fairfield, CT 06430.
(18) Includes 2,000 shares held by Mr. Parsky's wife, as to which Mr. Parsky
disclaims beneficial ownership.
(19) Excludes 12,000 shares of Common Stock subject to options granted under the
Stock Plan that are not exercisable within 60 days of February 27, 1998.
Mr. Stonesifer's address is 8473 Bay Colony Drive, Naples, FL 34108.
(20) Includes 464,606 shares of Common Stock subject to options that are
exercisable as of February 27, 1998 or that will become exercisable within
60 days thereafter. Mr. Smith's address is 629 SW 293rd Street, Federal
Way, WA 98023.
(21) Consists of shares owned by Fred Jones Industries A Limited Partnership, a
Texas limited partnership ("Fred Jones Industries"), which is a significant
stockholder of Fred Jones Enterprises. The general partner of Fred Jones
Industries is a corporation of which Mr. Hall is a director, officer and
significant stockholder. Mr. Hall is also a limited partner of Fred Jones
Industries.
(22) Includes 868,526 shares of Common Stock subject to warrants and options
that are exercisable as of February 27, 1998 or that will become
exercisable within 60 days thereafter. Excludes 621,312 shares of Common
Stock subject to options granted under the Stock Plan that are not
exercisable within 60 days of February 27, 1998.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The Company believes the transactions described below, which were
entered into by the Company and its subsidiaries, were beneficial to the
respective companies, and were on terms at least as favorable to the
respective companies as could have been obtained from unaffiliated third
parties pursuant to arms-length negotiations.
RELATIONSHIP WITH ACP
The Company was formed in 1994 at the direction of ACP, which is
affiliated with the Aurora Partnerships. ACP is controlled by Messrs.
Crowell, Parsky and Roeder, who are directors of the Company. As of March 9,
1998, the Company had paid ACP aggregate fees of approximately $4.2 million
for investment banking services provided by ACP in connection with the
Company's acquisitions in 1995-1998.
The Company also pays to ACP a base annual management fee of
approximately $540,000 for advisory and consulting services pursuant to a
written management services agreement (the "Management Services Agreement").
ACP is also entitled to reimbursements from the Company for all of its
reasonable out-of-pocket costs and expenses incurred in connection with the
performance of its obligations under the Management Services Agreement. The
base annual management fee is subject to increase, at the discretion of the
disinterested members of the Company's Board of Directors, by up to an
aggregate of $250,000 in the event the Company consummates one or more
significant corporate transactions. The base annual management fee has not
been increased as a result of any of the Company's acquisitions. The base
annual management fee is also subject to increase for specified cost of
living increases pursuant to which the base annual management fee was most
recently increased in July 1997 from $530,000. If the Company's EBITDA in
any year exceeds management's budgeted EBITDA by 15.0% or more for that year,
ACP will be entitled to receive an additional management fee equal to one
half of its base annual management fee for such year. Because the Company's
EBITDA did not exceed management's budgeted EBITDA by 15.0% in 1997, ACP did
not receive this additional management fee in 1997. In the event the Company
consummates any significant acquisitions or dispositions, ACP will be
entitled to receive a closing fee from the Company equal to 2.0% of the first
$75.0 million of the acquisition consideration (including debt assumed and
current assets retained) and 1.0% of acquisition consideration (including
debt assumed and current assets retained) in excess of $75.0 million.
Notwithstanding the foregoing, no payment will be made to ACP pursuant to the
Management Services Agreement at any time that certain events of default
shall have occurred and be then continuing under any of the Indentures
governing the Company's 12% Senior Subordinated Notes due 2004 or the
Company's bank credit facility. The Management Services Agreement also
provides that the Company
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shall provide ACP and its directors, employees, partners and affiliates with
customary indemnification against all actions not involving gross negligence
or willful misconduct.
The base annual management fee payable to ACP will be reduced as the
collective beneficial ownership of Common Stock by the Aurora Partnerships
declines below 50% as follows: for any period during which the collective
beneficial ownership of the Aurora Partnerships is less than 50% but at least
40%, the base annual management fee payable for the period will be 80% of the
original base annual management fee (as such original base annual management
fee may previously have been adjusted due to discretionary increases by the
Board of Directors or cost of living increases as described above, the
"Original Fee"); for any period during which the Aurora Partnerships'
collective beneficial ownership is less than 40% but at least 30%, the base
annual management fee payable for the period will be 60% of the Original Fee;
and for any period during which the collective beneficial ownership of the
Aurora Partnerships is less than 30% but at least 20%, the base annual
management fee payable for the period will be 40% of the Original Fee. If
the Aurora Partnerships' collective beneficial ownership declines below 20%,
the Management Services Agreement will terminate. As of February 13, 1998,
the collective beneficial ownership of the Aurora Partnerships for purposes
of the Management Services Agreement was approximately 52%. See Item 12.
"Security Ownership of Certain Beneficial Owners and Management."
In October 1996, the Company granted options for an aggregate of 48,000
shares of Common Stock to Mark C. Hardy (a director of the Company), Kurt
Larsen (a former director of the Company) and two consultants of the Company,
all four of whom were then employees of ACP. These options, which have an
exercise price of $4.67 per share, become exercisable in one-third increments
on each of the first three anniversaries of the date of grant and expire in
2006. In 1997, 12,000 of these options terminated when Mr. Larsen resigned
from ACP.
AUTOCRAFT ACQUISITION
In March 1998 the Company purchased Autocraft from Fred Jones
Enterprises (then known as Autocraft Industries, Inc.) for $112.5 million in
cash plus up to an additional $12.5 million to be paid in 1999 based on the
performance of Autocraft's European operations during 1998. Of the $112.5
million, $1.25 million was paid to Fred Jones Industries in exchange for an
agreement from Fred Jones Industries to cooperate with the Company and not
compete against it for a specified period of time following the Autocraft
Acquisition. In connection with the Autocraft Acquisition, the Company
entered into a lease with Fred Jones Enterprises pursuant to which the
Company leases a manufacturing facility on a month to month basis at a rate
of $21,000 per month.
Fred J. Hall, who is nominated to serve as a director of the Company, is
(i) the Chairman of the Board, President and Chief Executive Officer and a
significant stockholder of Fred Jones Enterprises, and (ii) a director,
officer and significant stockholder of the corporation that is the general
partner of Fred Jones Industries, which is also a significant stockholder of
Fred Jones Enterprises. Mr. Hall is also a limited partner of Fred Jones
Industries.
FACILITY LEASES
In connection with its acquisition of Aaron's, the Company entered into
a lease with CRW, Inc., an affiliate of C.R. Wehr and James R. Wehr (whose
individual family trusts owned all of the outstanding capital stock of
Aaron's prior to its acquisition by the Company), for Aaron's headquarters
and primary remanufacturing facility located in Springfield, Missouri with an
initial term beginning as of January 1, 1994 and expiring as of December 31,
2004, subject to the Company's option to extend the term for a period of five
years. The monthly base rent is $33,105 and the Company is responsible for
paying property taxes, insurance and maintenance expenses for the leased
premises. The Company also entered into three leases with C.R. Wehr, Westway
Partnership, JRW, Inc. and C.J. Cates Real Estate Co. (each, an affiliate of
C.R. Wehr and James R. Wehr) for three manufacturing facilities comprising
approximately 84,000 square feet for an aggregate rent of $12,000 per month
with an initial term beginning as of January 1, 1994 and expiring as of
December 31, 1996 and December 31, 1998 (depending upon the facility),
subject to the Company's option to extend the term of the lease for a 30,000
square foot facility for one successive period of five years through December
31, 2003. In November 1994, the Company entered into another lease with the
same parties for a 98,800 square foot storage facility for monthly rent of
$7,300 per month. The initial term of the lease expired during 1995 and
pursuant to its terms, continues as a month-to-month lease until terminated.
The Company is responsible for paying
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property taxes, insurance and maintenance expenses for each of these leased
premises. James R. Wehr is an executive officer of the Company.
In addition, the Company is a party to a lease with Patricia L.
Bridgeforth, Mr. Wehr's sister, for Aaron's 200,000 square foot core storage
facility. The lease has an initial term of ten years, expiring October 31,
2006, with an option to renew for five years. The base monthly rent is
$35,833 for the initial term, with specified increases for each renewal term.
The Company is also required to pay taxes, maintenance and operating
expenses.
INDEMNIFICATION AGREEMENTS
The Company has entered into separate but identical indemnification
agreements (the "Indemnification Agreements") with each director and
executive officer of the Company. The Indemnification Agreements provide
for, among other things, the following: (i) indemnification to the fullest
extent permitted by law against any and all expenses (including attorneys'
fees and all other costs and obligations of any nature whatever), judgments,
fines, penalties and amounts paid in settlement (including all interest,
assessments and other charges paid or payable in connection therewith) of any
claim, unless the Company determines that such indemnification is not
permitted under applicable law; (ii) the prompt advancement of expenses to
the director or officer, including attorneys' fees and all other costs, fees,
expenses and obligations paid or incurred in connection with investigating or
defending any threatened, pending or completed action, suit or proceeding
related to the fact that such director or officer is or was a director or
officer of the Company or is or was serving at the request of the Company as
a director, officer, employee, trustee, agent or fiduciary of another
corporation, partnership, joint venture, employee benefit plan, trust or
other enterprise, and for repayment to the Company if it is found that such
director or officer is not entitled to such indemnification under applicable
law; (iii) a mechanism through which the director or officer may seek court
relief in the event the Company determines that the director or officer is
not permitted to be indemnified under applicable law (and therefore is not
entitled to indemnification under the Indemnification Agreement); and (iv)
indemnification against expenses (including attorneys' fees) incurred in
seeking to collect from the Company an indemnity claim or advancement of
expenses to the extent successful.
PAYMENT OF PREFERRED STOCK REORGANIZATION CONSIDERATION
In connection with the formation of the Company, in July and August 1994
Holdings issued shares of its preferred stock to each purchaser of Holdings
common stock, including the Aurora Partnerships and Messrs. Anderson,
Crowell, Hardy, Parsky, Roeder, Smith and Wehr (each of whom is a director of
the Company, except Mr. Wehr, who is a former executive officer), for
consideration of $100 per share. These shares were converted into shares of
the Company's preferred stock in the Reorganization in December 1996,
immediately after which the Company redeemed the preferred stock for an
amount per share equal to $100 plus an amount equal to the accrued and unpaid
dividends on the Holdings preferred stock through the date of the
Reorganization. Upon the redemption of their shares of preferred stock
Messrs. Anderson, Crowell, Hardy, Parsky, Roeder, Smith and Wehr received
$23,630, $159,195, $13,701, $176,403, $30,596, $70,765 and $1,414,051,
respectively. The Aurora Partnerships distributed their shares of preferred
stock to their respective general and limited partners prior to the
redemption.
REGISTRATION RIGHTS
The holders of the Common Stock outstanding before the IPO in December
1996 have certain "demand" and "piggyback" registration rights pursuant to a
Stockholders Agreement. In addition, GEPT has certain "demand" and
"piggyback" registration rights with respect to a portion of the 1,825,652
shares of Common Stock owned by it.
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ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
(a) Index to Financial Statements, Financial Statement Schedules and Exhibits:
1. Financial Statements Index
See Index to Financial Statements and Supplemental Data on page 25.
2. Financial Statement Schedules Index
II - Valuation and Qualifying Accounts . . . . . . . . . . . . . . S-1
All other schedules for which provision is made in the applicable
accounting regulation of the Securities and Exchange Commission are not
required under the related instructions or are inapplicable and therefore
have been omitted.
3. Exhibit Index
The following exhibits are filed as part of this Annual Report on
Form 10-K, or are incorporated herein by reference.
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<S> <C>
3.1 Amended and Restated Certificate of Incorporation of Aftermarket
Technology Corp. (previously filed as Exhibit 3.1 to the Company's
Annual Report on Form 10-K for the year ended December 31, 1996 and
incorporated herein by this reference)
3.2 Certificate of Designations, Preferences, and Relative,
Participating, Option and Other Special Rights of Preferred Stock and
Qualifications, Limitations and Restrictions Thereof of Redeemable
Exchangeable Cumulative Preferred Stock of Aftermarket Technology
Corp. (previously filed as Exhibit 3.2 to the Company's Annual Report
on Form 10-K for the year ended December 31, 1996 and incorporated
herein by this reference)
3.3 Amended and Restated Bylaws of Aftermarket Technology Corp.
(previously filed as Exhibit 3.3 to the Company's Registration
Statement on Form S-1 (File No. 333-35543) filed on September 12,
1997 and incorporated herein by this reference)
4.1 Indenture, dated August 2, 1994, among Aftermarket Technology Corp.,
the Guarantors named therein and Firstar Bank of Minnesota, N.A.
(formerly known as American Bank N.A.), as Trustee for the Series B
Notes (previously filed as Exhibit 4.1 to the Company's Registration
Statement on Form S-4 filed on November 30, 1994, Commission File No.
33-86838, and incorporated herein by this reference)
4.2 Indenture, dated June 1, 1995, among Aftermarket Technology Corp.,
the Guarantors named therein and Firstar Bank of Minnesota, N.A.
(formerly known as American Bank N.A.), as Trustee for the Series D
Notes (previously filed as Exhibit 4.1 to the Company's Registration
Statement on Form S-4 filed on June 21, 1995, Commission File No.
33-93776, and incorporated herein by this reference)
4.3 First Supplemental Indenture, dated as of February 23, 1995, among
Aftermarket Technology Corp., the Guarantors named therein and
Firstar Bank of Minnesota, N.A. (formerly known as American Bank
N.A.), as Trustee for the Series B Notes (previously filed as Exhibit
4.3 to Amendment No. 1 to the Company's Registration Statement on
Form S-1 filed on October 25, 1996, Commission File No. 333-6697, and
incorporated herein by this reference)
4.4 Second Supplemental Indenture, dated as of June 1, 1995, among
Aftermarket Technology Corp., the Guarantors named therein and
Firstar Bank of Minnesota, N.A. (formerly known as American Bank
N.A.), as Trustee for the Series B Notes (previously filed as Exhibit
4.4 to Amendment No. 1 to the
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<PAGE>
Company's Registration Statement on Form S-1 filed on October 25,
1996, Commission File No. 333-5597, and incorporated herein by this
reference)
4.5 Third Supplemental Indenture to the Series B Indenture and First
Supplemental Indenture to the Series D Indenture, dated as of
July 25, 1996, among Aftermarket Technology Corp., the Guarantors
named therein and Firstar Bank of Minnesota, N.A. (formerly known as
American Bank N.A.), as Trustee for the Notes (previously filed as
Exhibit 4.5 to Amendment No. 1 to the Company's Registration
Statement on Form S-1 filed on October 25, 1996, Commission File No.
333-5597, and incorporated herein by this reference)
10.1 Stockholders Agreement, dated as of August 2, 1994, among Holdings,
and certain of its stockholders, optionholders and warrant holders
(the Stockholders Agreement) (previously filed as Exhibit 10.1 to the
Company's Registration Statement on Form S-4 filed on November 30,
1994, Commission File No. 33-86838, and incorporated herein by this
reference)
10.2 Amendment No. 1 to the Stockholders Agreement, dated as of June 24,
1996 (previously filed as Exhibit 10.38 to Amendment No. 2 to the
Company's Registration Statement on Form S-1 filed on November 6,
1996, Commission File No. 333-5597, and incorporated herein by this
reference)
10.3 Amendment No. 2 to the Stockholders Agreement, dated as of
October 24, 1996 (previously filed as Exhibit 10.39 to Amendment No.
2 to the Company's Registration Statement on Form S-1 filed on
November 6, 1996, Commission File No. 333-5597, and incorporated
herein by this reference)
10.4 Amendment No. 3 to Stockholders Agreement, dated as of December 4,
1996 (previously filed as Exhibit 10.4 to the Company's Annual Report
on Form 10-K for the year ended December 31, 1996 and incorporated
herein by this reference)
10.5 Amendment No. 4 to Stockholders Agreement, dated as of December 16,
1996 (previously filed as Exhibit 10.5 to the Company's Annual Report
on Form 10-K for the year ended December 31, 1996 and incorporated
herein by this reference)
*10.6 Amended and Restated Credit Agreement, dated as of March 6, 1998,
among Aftermarket Technology Corp., the Lenders from time to time
parties thereto and The Chase Manhattan Bank (the Credit Agreement)
*10.7 Guarantee and Collateral Agreement, dated as of March 6, 1998, by
Aftermarket Technology Corp. and each of the signatories thereto in
favor of The Chase Manhattan Bank as Agent for the banks and other
financial institutions from time to time parties to the Amended and
Restated Credit Agreement (see Exhibit 10.6)
10.8 Amended and Restated Tax Sharing Agreement, dated as of December 20,
1996, among Aftermarket Technology Holdings Corp., Aaron's Automotive
Products, Inc., ATC Components, Inc., CRS Holdings Corp., Diverco
Acquisition Corp., H.T.P., Inc., Mamco Converters, Inc., R.P.M.
Merit, Inc. and Tranzparts Acquisition Corp. (previously filed as
Exhibit 10.8 to the Company's Annual Report on Form 10-K for the year
ended December 31, 1996 and incorporated herein by this reference)
10.9 Amended and Restated Management Services Agreement, dated as of
November 18, 1996, by and among Aftermarket Technology Corp., the
subsidiaries of Aftermarket Technology Corp., and Aurora Capital
Partners L.P. (previously filed as Exhibit 10.4 to Amendment No. 4 to
the Company's Registration Statement on Form S-1 filed on October 25,
1996, Commission File No. 333-5597, and incorporated herein by this
reference)
10.10 Aftermarket Technology Corp. 1996 Stock Incentive Plan (previously
filed as Exhibit 10.10 to the Company's Annual Report on Form 10-K
for the year ended December 31, 1996 and incorporated herein by this
reference)
10.11 Form of Incentive Stock Option Agreement (previously filed as Exhibit
10.36 to Amendment No. 1 to the Company's Registration Statement on
Form S-1 filed on October 25, 1996, Commission File No. 333-5597, and
incorporated herein by this reference)
10.12 Form of Non-Qualified Stock Option Agreement (previously filed as
Exhibit 10.37 to Amendment No. 1 to the Company's Registration
Statement on Form S-1 filed on October 25, 1996, Commission File No.
333-5597, and incorporated herein by this reference)
10.13 Employment Agreement dated as of August 1, 1997 between William A.
Smith and Aftermarket Technology Corp. (previously filed as Exhibit
10.13 to the Company's Registration Statement on
57
<PAGE>
Form S-1 (File No. 333-35543) filed on September 12, 1997 and
incorporated herein by this reference)
10.14 Employment Agreement, dated as of October 7, 1996, between Stephen J.
Perkins and Aftermarket Technology Corp. (previously filed as Exhibit
10.35 to Amendment No. 1 to the Company's Registration Statement on
Form S-1 filed on October 25, 1996, Commission File No. 333-5597, and
incorporated herein by this reference)
10.15 Employment Agreement, dated as of October 1, 1996, between John C.
Kent and Aftermarket Technology Corp. (previously filed as Exhibit
10.7 to Amendment No. 2 to the Company's Registration Statement on
Form S-1 filed on November 6, 1996, Commission File No. 333-5597, and
incorporated herein by this reference)
10.16 Employment Agreement, dated August 2, 1994, between James R. Wehr and
Aaron's Automotive Products, Inc. (previously filed as Exhibit 10.9
to the Company's Registration Statement on Form S-4 filed on
November 30, 1994, Commission File No. 33-86838, and incorporated
herein by this reference)
10.17 Employment Agreement, dated as of June 1, 1995, between Michael L.
LePore and Component Remanufacturing Specialists, Inc. (previously
filed as Exhibit 10.11 to the Company's Registration Statement on
Form S-4 filed on June 21, 1995, Commission File No. 33-93776, and
incorporated herein by this reference)
10.18 Amended and Restated Warrant Certificate, dated as of August 2, 1994,
for 280,704 warrants issued to William E. Myers, Jr. (previously
filed as Exhibit 10.18 to the Company's Annual Report on Form 10-K
for the year ended December 31, 1996 and incorporated herein by this
reference)
10.19 Amended and Restated Warrant Certificate, dated as of August 2, 1994,
for 70,176 warrants issued to Brian E. Sanderson (previously filed as
Exhibit 10.19 to the Company's Annual Report on Form 10-K for the
year ended December 31, 1996 and incorporated herein by this
reference)
10.20 Amended and Restated Warrant Certificate, dated June 24, 1996, for
70,176 warrants issued to Michael J. Hartnett (previously filed as
Exhibit 10.20 to the Company's Annual Report on Form 10-K for the
year ended December 31, 1996 and incorporated herein by this
reference)
10.21 Stock Purchase Agreement, dated May 16, 1994, by and among C.R. Wehr,
Jr., Rev. Liv. Trust, James R. Wehr, Aaron's Automotive
Products, Inc. and AAP Acquisition Corp. (previously filed as Exhibit
10.14 to the Company's Registration Statement on Form S-4 filed on
November 30, 1994, Commission File No. 33-86838, and incorporated
herein by this reference)
10.22 Stock Purchase Agreement, dated July 21, 1994, by and among John B.
Maynard, Kenneth T. Hester, H.T.P., Inc. and HTP Acquisition Corp.
(previously filed as Exhibit 10.15 to the Company's Registration
Statement on Form S-4 filed on November 30, 1994, Commission File No.
33-86838, and incorporated herein by this reference)
10.23 Stock Purchase Agreement, dated July 21, 1994, by and among John B.
Maynard, Mamco Converters, Inc. and Mamco Acquisition Corp.
(previously filed as Exhibit 10.16 to the Company's Registration
Statement on Form S-4 filed on November 30, 1994, Commission File No.
33-86838, and incorporated herein by this reference)
10.24 Asset Purchase Agreement, dated June 24, 1994, by and among RPM
Merit, Donald W. White, John A. White, The White Family Trust and RPM
Acquisition Corp. (previously filed as Exhibit 10.17 to the Company's
Registration Statement on Form S-4 filed on November 30, 1994,
Commission File No. 33-86838, and incorporated herein by this
reference)
10.25 Agreement and Plan of Merger and Reorganization, dated May 10, 1995,
by and among Component Remanufacturing Specialists, Inc., James R.
Crane, Michael L. LePore, Aftermarket Technology Corp., CRS Holdings
Corp. and CRS Acquisition Corp. (previously filed as Exhibit 2 to the
Company's Current Report on Form 8-K filed on June 15, 1995,
Commission File No. 33-80838-01, and incorporated herein by this
reference)
10.26 Stock Purchase Agreement, dated June 9, 1995, by and among Dianne
Hanthorn, Jobian Limited, Randall Robinson, Barry E. Schwartz,
Bradley Schwartz, Angela White, John White, Incorporated Investments
Limited, Glenn M. Hanthorn, Guido Sala and Tony Macharacek, Mascot
Truck Parts Inc. and Mascot Acquisition Corp. (previously filed as
Exhibit 10.22 to the Company's Registration Statement on Form S-4
filed on June 21, 1995, Commission File No. 33-93776, and
incorporated herein by this reference)
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<PAGE>
10.27 Stock Purchase Agreement, dated September 12, 1995, by and among
Gordon King, 433644 Ontario Limited, 3179338 Canada Inc.,
King-O-Matic Industries Limited, KOM Acquisition Corp. and
Aftermarket Technology Corp. (previously filed as Exhibit 10.23 to
the Company's Annual Report on Form 10-K for the year ended
December 31, 1995 and incorporated herein by this reference)
10.28 Stock Purchase Agreement, dated as of April 2, 1996, by and among the
Charles T. and Jean F. Gorham Charitable Remainder Trust dated
March 27, 1996, Charles T. Gorham, J. Peter Donoghue,
Tranzparts, Inc. and Tranzparts Acquisition Corp. (previously filed
as Exhibit 10.23 to Amendment No. 1 to the Company's Registration
Statement on Form S-1 filed on October 25, 1996, Commission File No.
333-5597, and incorporated herein by this reference)
10.29 Stock Purchase Agreement, dated as of October 1, 1996, by and among
Robert T. Carren Qualified Annuity Trust, Robert T. Carren,
Diverco, Inc., and Diverco Acquisition Corp. (previously filed as
Exhibit 10.34 to Amendment No. 1 to the Company's Registration
Statement on Form S-1 filed on October 25, 1996, Commission File No.
333-5597, and incorporated herein by this reference)
10.30 Stock Purchase Agreement, dated as of January 31, 1997, by and among
S. Jay Wilemon, Ricki J. Wilemon, Bradley J. Wilemon, Corby L.
Wilemon, Replacement & Exchange Parts Co., Inc., Aftermarket
Technology Corp. and Repco Acquisition Corp. (previously filed as
Exhibit 10.30 to the Company's Annual Report on Form 10-K for the
year ended December 31, 1996 and incorporated herein by this
reference)
10.31 Lease, dated February 24, 1995, between 29 Santa Anita Partnership
L.P. and Replacement Parts Manufacturing with respect to property
located at 12250 E. 4th Street, Rancho Cucamonga, California
(previously filed as Exhibit 10.24 to Amendment No. 2 to the
Company's Registration Statement on Form S-1 filed on November 6,
1996, Commission File No. 333-5597, and incorporated herein by this
reference)
10.32 Lease, dated January 1, 1994, between CRW, Incorporated and Aaron's
Automotive Products, Inc. with respect to property located at 2600
North Westgate, Springfield, Missouri (previously filed as Exhibit
10.4 to the Company's Registration Statement on Form S-4 filed on
November 30, 1994, Commission File No. 33-86838, and incorporated
herein by this reference)
*10.33 Amended and Restated Lease, dated as of June 1, 1997, by and among
Confar Investors II, L.L.C. and Aaron's Automotive Products, Inc.
10.34 Sublease, dated April 20, 1994, between Troll Associates, Inc. and
Component Remanufacturing Specialists, Inc. with respect to property
located at 400 Corporate Drive, Mahwah, New Jersey (previously filed
as Exhibit 10.40 to Amendment No. 2 to the Company's Registration
Statement on Form S-1 filed on November 6, 1996, Commission File No.
333-5597, and incorporated herein by this reference)
10.35 Sublease Modification and Extension Agreement, dated as of
February 28, 1996, between Olde Holding Company and Component
Remanufacturing Specialists, Inc. with respect to property located at
400 Corporate Drive, Mahwah, New Jersey (previously filed as Exhibit
10.41 to Amendment No. 2 to the Company's Registration Statement on
Form S-1 filed on November 6, 1996, Commission File No. 333-5597, and
incorporated herein by this reference)
10.36 Exchange and Registration Rights Agreement, dated August 2, 1994, by
and among Aftermarket Technology Corp., the subsidiaries of
Aftermarket Technology Corp., Chemical Securities Inc., and
Donaldson, Lufkin & Jenrette Securities Corporation (previously filed
as Exhibit 10.13 to the Company's Registration Statement on Form S-4
filed on November 30, 1994, Commission File No. 33-83868, and
incorporated herein by this reference)
10.37 Exchange and Registration Rights Agreement, dated June 1, 1995, by
and among Aftermarket Technology Corp., the subsidiaries of
Aftermarket Technology Corp., Chemical Securities Inc., and
Donaldson, Lufkin & Jenrette Securities Corporation (previously filed
as Exhibit 10.16 to the Company's Registration Statement on Form S-4
filed on June 21, 1995, Commission File No. 33-93776, and
incorporated herein by this reference)
10.38 Firstbank Lending Agreement, dated as of June 28, 1996, between
Mascot Trust Parts Inc. and/or King-O-Matic Industries Ltd. and Bank
of Montreal (previously filed as Exhibit 10.33 to Amendment No. 1 to
the Company's Registration Statement on Form S-1 filed on October 25,
1996, Commission File
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<PAGE>
No. 333-5597, and incorporated herein by this reference)
10.39 Stock Subscription Agreement, dated as of November 18, 1996, between
Aftermarket Technology Corp. and the Trustees of the General Electric
Pension Trust (previously filed as Exhibit 10.44 to Amendment No. 4
to the Company's Registration Statement on Form S-1 filed on
October 25, 1996, Commission File No. 333-5597, and incorporated
herein by this reference)
10.40 Amendment and Consent dated as of July 25, 1997 to the Credit
Agreement dated as of February 14, 1997 among Aftermarket Technology
Corp., the several banks and other financial institutions from time
to time parties thereto and The Chase Manhattan Bank, as agent
(previously filed as Exhibit 10.40 to the Company's Registration
Statement on Form S-1 (File No. 333-35543) filed on September 12,
1997 and incorporated herein by this reference)
10.41 Asset Purchase Agreement dated as of July 31, 1997 among Automatic
Transmission Shops Inc., C.W. Smith, ATS Remanufacturing, Inc. and
Aftermarket Technology Corp. (previously filed as Exhibit 10.41 to
the Company's Registration Statement on Form S-1 (File No. 333-35543)
filed on September 12, 1997 and incorporated herein by this
reference)
10.42 Lease Agreement dated as July 31, 1997 between C.W. Smith and ATS
Remanufacturing, Inc. (previously filed as Exhibit 10.42 to the
Company's Registration Statement on Form S-1 (File No. 333-35543)
filed on September 12, 1997 and incorporated herein by this
reference)
10.43 Stock Purchase Agreement dated as of July 21, 1997 among Gary A.
Gamble, James E. Henderson, Trans Mart, Inc., TM-AL Acquisition Corp.
and Aftermarket Technology Corp. (previously filed as Exhibit 10.43
to the Company's Registration Statement on Form S-1 (File No. 333-
35543) filed on September 12, 1997 and incorporated herein by this
reference)
10.44 Amendment No. 1 to Stock Purchase Agreement dated as of August 15,
1997 among Gary A. Gamble, James E. Henderson, Trans Mart, Inc., TM-AL
Acquisition Corp. and Aftermarket Technology Corp. (previously filed
as Exhibit 10.44 to the Company's Registration Statement on Form S-1
(File No. 333-35543) filed on September 12, 1997 and incorporated
herein by this reference)
10.45 Amendment No. 2 to Stock Purchase Agreement dated as of August 15,
1997 among Gary A. Gamble, James E. Henderson, Trans Mart, Inc., TM-AL
Acquisition Corp. and Aftermarket Technology Corp. (previously filed
as Exhibit 10.45 to the Company's Registration Statement on Form S-1
(File No. 333-35543) filed on September 12, 1997 and incorporated
herein by this reference)
10.46 Form of Indemnification Agreement between Aftermarket Technology
Corp. and directors and certain officers (previously filed as Exhibit
10.46 to Amendment No. 1 the Company's Registration Statement on Form
S-1 (File No. 333-35543) filed on October 1, 1997 and incorporated
herein by this reference)
10.47 Amendment Agreements dated August 25, 1997 to Firstbank Lending
Agreement between Bank of Montreal, Mascot Truck Parts, Inc. and
King-O-Matic Industries Limited (previously filed as Exhibit 10.47 to
Amendment No. 1 the Company's Registration Statement on Form S-1
(File No. 333-35543) filed on October 1, 1997 and incorporated herein
by this reference)
*10.48 Stock Purchase Agreement, dated as of November 14, 1997, by and among
Matthew Obeid, Metran Automatic Transmission Parts Corp., Metran of
Boston, Inc., Metran Parts of Pennsylvania, Inc., TM-AL Acquisition
Corp. and Aftermarket Technology Corp.
*10.49 Asset Purchase Agreement, dated as of February 10, 1998, by and among
Autocraft Industries, Inc., Fred Jones Industries A Limited
Partnership, and Aftermarket Technology Corp.
*10.50 Amendment No. 1 to Asset Purchase Agreement, dated as of February 10,
1998, by and among Autocraft Industries, Inc., Fred Jones Industries
A Limited Partnership, and Aftermarket Technology Corp.
*10.51 Employment Agreement, dated as of July 28, 1994, between Kenneth A.
Bear and Aaron's Automotive Products, Inc.
*10.52 Employment Agreement, dated as of February 21, 1997, between Joseph
Salamunovich and Aftermarket Technology Corp.
*10.53 Employment Agreement, dated as of March 6, 1998, between Ronald E.
Bradshaw and Aftermarket Technology Corp.
*11 Statement Re Computation of Net Income Per Share
*21 List of Subsidiaries
60
<PAGE>
*23 Consent of Ernst & Young LLP, independent auditors
*27 Financial Data Schedules
</TABLE>
___________
* Filed herewith
(b) Reports on Form 8-K
During the last quarter of 1997, the Company filed a Report on Form 8-K
dated July 31, 1997 disclosing the acquisition of ATS Remanufacturing
pursuant to Item 2 of Form 8-K. No financial statements were required to be
filed pursuant to Item 7 of Form 8-K.
(c) Refer to (a) 3 above.
(d) Refer to (a) 2 above.
61
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 15(d) of the Securities Exchange
Act of 1934, the Registrant has duly caused this Annual Report on Form 10-K
to be signed on its behalf by the undersigned, thereunto duly authorized, on
March 24, 1998.
AFTERMARKET TECHNOLOGY CORP.
By: /s/ Stephen J. Perkins
------------------------------
Stephen J. Perkins
Chairman of the Board, President
and Chief Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1934,
this Annual Report on Form 10-K has been signed by the following persons in
the capacities indicated on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- ---------------------------- ------------------------------- --------------
<S> <C> <C>
/s/ Stephen J. Perkins Chairman of the Board, President March 24, 1998
---------------------------- and Chief Executive Officer
Stephen J. Perkins (Principal Executive Officer)
/s/ John C. Kent Chief Financial Officer March 24, 1998
---------------------------- (Principal Financial and
John C. Kent Accounting Officer)
/s/ Robert Anderson Director March 24, 1998
----------------------------
Robert Anderson
/s/ Richard R. Crowell Director March 24, 1998
----------------------------
Richard R. Crowell
/s/ Dale F. Frey. Director March 24, 1998
----------------------------
Dale F. Frey.
/s/ Mark C. Hardy Director March 24, 1998
----------------------------
Mark C. Hardy
/s/ Michael J. Hartnett Director March 24, 1998
----------------------------
Michael J. Hartnett
/s/ Gerald L. Parsky Director March 24, 1998
----------------------------
Gerald L. Parsky
62
<PAGE>
Signature Title Date
- ---------------------------- ------------------------------- --------------
/s/ Richard K. Roeder Director March 24, 1998
----------------------------
Richard K. Roeder
/s/ William A. Smith Chairman Emeritus of the March 24, 1998
---------------------------- Board of Directors
William A. Smith
/s/ J. Richard Stonesifer Director March 24, 1998
----------------------------
J. Richard Stonesifer
</TABLE>
63
<PAGE>
<TABLE>
<CAPTION>
AFTERMARKET TECHNOLOGY CORP.
SCHEDULE II - VALUATION AND QUALIFYING ACCOUNTS
(IN THOUSANDS)
Additions
-------------------------
Balance at Charged to Charge to Balance
Beginning Costs and Other at End
of Period Expenses Accounts Deductions of Period
----------- ----------- ---------- ------------ ---------
<S> <C> <C> <C> <C> <C>
Year ended December 31, 1995:
Reserve and allowances deducted
from asset accounts:
Allowance for uncollectible accounts $ 766 $ 1,239 $ 1,217(2) $ 753(1) $ 2,469
Reserve for inventory obsolescence 786 1,034 294(2) -- 2,114
Year ended December 31, 1996:
Reserve and allowances deducted from
asset accounts:
Allowance for uncollectible accounts 2,469 668 14(2) 1,825(1) 1,326
Reserve for inventory obsolescence 2,114 1,411 -- 784 2,741
Year ended December 31, 1997:
Reserve and allowances deducted from
asset accounts:
Allowance for uncollectible accounts 1,326 921 183(2) 1,284(1) 1,146
Reserve for inventory obsolescence 2,741 930 -- 1,575 2,096
</TABLE>
(1) Accounts written off, net of recoveries
(2) Balances added through new acquisitions
S-1
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.6
<SEQUENCE>2
<DESCRIPTION>EXHIBIT 10.6
<TEXT>
<PAGE>
EXECUTION COPY
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
AMENDED AND RESTATED
CREDIT AGREEMENT
AMONG
AFTERMARKET TECHNOLOGY CORP.,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO,
CHASE SECURITIES INC.,
AS GLOBAL ARRANGER
AND
THE CHASE MANHATTAN BANK,
AS AGENT
DATED AS OF MARCH 6, 1998
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
SECTION 1. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Defined Terms. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Other Definitional Provisions. . . . . . . . . . . . . . . . . . . . 18
SECTION 2. AMOUNT AND TERMS OF CREDIT COMMITMENTS . . . . . . . . . . . . . . . 19
2.1 Revolving Credit Commitments . . . . . . . . . . . . . . . . . . . . 19
2.2 Procedure for Revolving Credit Borrowing . . . . . . . . . . . . . . 19
2.3 Termination or Reduction of Revolving Credit Commitments . . . . . . 20
2.4 Term Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.5 Procedure for Term Loan Borrowing. . . . . . . . . . . . . . . . . . 20
2.6 Swing Line Commitments . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 3. LETTERS OF CREDIT. . . . . . . . . . . . . . . . . . . . . . . . . . 22
3.1 L/C Commitment.. . . . . . . . . . . . . . . . . . . . . . . . . . . 22
3.2 Procedure for Issuance of Letters of Credit. . . . . . . . . . . . . 23
3.3 L/C Participations.. . . . . . . . . . . . . . . . . . . . . . . . . 23
3.4 Reimbursement Obligation of the Borrower.. . . . . . . . . . . . . . 24
3.5 Obligations Absolute.. . . . . . . . . . . . . . . . . . . . . . . . 25
3.6 Letter of Credit Payments. . . . . . . . . . . . . . . . . . . . . . 25
3.7 Application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 4. GENERAL PROVISIONS APPLICABLE
TO LOANS AND LETTERS OF CREDIT . . . . . . . . . . . . . . . . . . . 26
4.1 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
4.2 Repayment of Loans; Evidence of Debt . . . . . . . . . . . . . . . . 27
4.3 Amortization of Term Loans . . . . . . . . . . . . . . . . . . . . . 28
4.4 Optional and Mandatory Prepayments . . . . . . . . . . . . . . . . . 29
4.5 Conversion and Continuation Options. . . . . . . . . . . . . . . . . 30
4.6 Maximum Number of Tranches . . . . . . . . . . . . . . . . . . . . . 31
4.7 Interest Rates and Payment Dates . . . . . . . . . . . . . . . . . . 31
4.8 Computation of Interest and Fees . . . . . . . . . . . . . . . . . . 31
4.9 Inability to Determine Interest Rate . . . . . . . . . . . . . . . . 32
4.10 Pro Rata Treatment and Payments. . . . . . . . . . . . . . . . . . . 32
4.11 Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
4.12 Requirements of Law. . . . . . . . . . . . . . . . . . . . . . . . . 33
4.13 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
4.14 Indemnity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
4.15 Change of Lending Office . . . . . . . . . . . . . . . . . . . . . . 36
<PAGE>
<CAPTION>
PAGE
<S> <C>
SECTION 5. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . 36
5.1 Financial Condition. . . . . . . . . . . . . . . . . . . . . . . . . 36
5.2 No Change; Solvency. . . . . . . . . . . . . . . . . . . . . . . . . 37
5.3 Corporate Existence; Compliance with Law . . . . . . . . . . . . . . 38
5.4 Corporate Power; Authorization; Enforceable Obligations. . . . . . . 38
5.5 No Legal Bar . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
5.6 No Material Litigation . . . . . . . . . . . . . . . . . . . . . . . 39
5.7 No Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
5.8 Ownership of Property; Liens . . . . . . . . . . . . . . . . . . . . 39
5.9 Intellectual Property. . . . . . . . . . . . . . . . . . . . . . . . 39
5.10 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
5.11 Federal Regulations. . . . . . . . . . . . . . . . . . . . . . . . . 39
5.12 ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
5.13 Investment Company Act; Other Regulations. . . . . . . . . . . . . . 40
5.14 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
5.15 Purpose of Loans . . . . . . . . . . . . . . . . . . . . . . . . . . 40
5.16 Environmental Matters. . . . . . . . . . . . . . . . . . . . . . . . 41
5.17 No Burdensome Restrictions . . . . . . . . . . . . . . . . . . . . . 42
5.18 No Material Misstatements. . . . . . . . . . . . . . . . . . . . . . 42
5.19 Collateral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
5.20 Senior Debt. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 6. CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . 43
6.1 Conditions to Extensions of Credit . . . . . . . . . . . . . . . . . 43
6.2 Conditions to Each Extension of Credit . . . . . . . . . . . . . . . 46
SECTION 7. AFFIRMATIVE COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . 47
7.1 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . 47
7.2 Certificates; Other Information. . . . . . . . . . . . . . . . . . . 47
7.3 Payment of Obligations . . . . . . . . . . . . . . . . . . . . . . . 49
7.4 Conduct of Business and Maintenance of Existence . . . . . . . . . . 49
7.5 Maintenance of Property; Insurance . . . . . . . . . . . . . . . . . 49
7.6 Inspection of Property; Books and Records; Discussions . . . . . . . 49
7.7 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
7.8 Environmental Laws . . . . . . . . . . . . . . . . . . . . . . . . . 50
7.9 Additional Collateral. . . . . . . . . . . . . . . . . . . . . . . . 51
7.10 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . 52
7.11 Property Matters . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 8. NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . 53
-2-
<PAGE>
<CAPTION>
PAGE
<S> <C>
8.1 Financial Condition Covenants. . . . . . . . . . . . . . . . . . . . 53
8.2 Limitation on Indebtedness . . . . . . . . . . . . . . . . . . . . . 54
8.3 Limitation on Liens. . . . . . . . . . . . . . . . . . . . . . . . . 56
8.4 Limitation on Guarantee Obligations. . . . . . . . . . . . . . . . . 57
8.5 Limitation on Fundamental Changes. . . . . . . . . . . . . . . . . . 58
8.6 Limitation on Sale of Assets . . . . . . . . . . . . . . . . . . . . 58
8.7 Limitation on Leases . . . . . . . . . . . . . . . . . . . . . . . . 58
8.8 Limitation on Dividends. . . . . . . . . . . . . . . . . . . . . . . 58
8.9 Limitation on Capital Expenditures . . . . . . . . . . . . . . . . . 59
8.10 Limitation on Investments, Loans and Advances. . . . . . . . . . . . 60
8.11 Limitation on Optional Payments and Modifications of Debt
Instruments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
8.12 Limitation on Transactions with Affiliates . . . . . . . . . . . . . 62
8.13 Limitation on Sales and Leasebacks . . . . . . . . . . . . . . . . . 62
8.14 Limitation on Changes in Fiscal Year . . . . . . . . . . . . . . . . 62
8.15 Limitation on Negative Pledge Clauses. . . . . . . . . . . . . . . . 62
8.16 Limitation on Lines of Business; Creation of Subsidiaries. . . . . . 62
8.17 Limitation on Borrowings . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 9. EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 10. THE AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
10.1 Appointment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
10.2 Delegation of Duties . . . . . . . . . . . . . . . . . . . . . . . . 66
10.3 Exculpatory Provisions . . . . . . . . . . . . . . . . . . . . . . . 66
10.4 Reliance by Agent. . . . . . . . . . . . . . . . . . . . . . . . . . 67
10.5 Notice of Default. . . . . . . . . . . . . . . . . . . . . . . . . . 67
10.6 Non-Reliance on Agent and Other Lenders. . . . . . . . . . . . . . . 67
10.7 Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . 68
10.8 Agent in Its Individual Capacity . . . . . . . . . . . . . . . . . . 68
10.9 Successor Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 11. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
11.1 Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . . 69
11.2 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
11.3 No Waiver; Cumulative Remedies . . . . . . . . . . . . . . . . . . . 71
11.4 Survival of Representations and Warranties . . . . . . . . . . . . . 71
11.5 Payment of Expenses and Taxes. . . . . . . . . . . . . . . . . . . . 71
11.6 Successors and Assigns; Participations and Assignments . . . . . . . 72
11.7 Adjustments; Set-off . . . . . . . . . . . . . . . . . . . . . . . . 74
11.8 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
-3-
<PAGE>
<CAPTION>
PAGE
<S> <C>
11.9 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
11.10 Integration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
11.11 GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
11.12 Submission To Jurisdiction; Waivers. . . . . . . . . . . . . . . . . 75
11.13 Acknowledgements . . . . . . . . . . . . . . . . . . . . . . . . . . 76
11.14 WAIVERS OF JURY TRIAL. . . . . . . . . . . . . . . . . . . . . . . . 76
</TABLE>
<TABLE>
<CAPTION>
SCHEDULES
<S> <C>
A Performance Pricing Grid
1.1 Commitments and Addresses of Lenders
5.14 Subsidiaries
5.16 Environmental Matters
8.2 Existing Indebtedness
8.3 Existing Liens
8.10 Existing Investments
EXHIBITS
A-1 Form of Revolving Credit Note
A-2 Form of Term Note
A-3 Form of Swing Line Note
B Form of Guarantee and Collateral Agreement
C-1 Form of Opinion of Borrower's Counsel
C-2 Form of Opinion of Local Counsel
D Form of Borrowing Certificate
E Form of Assignment and Acceptance
F Terms and Conditions of Senior Subordinated Notes
G Form of Exemption Certificate
</TABLE>
-4-
<PAGE>
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of March 6, 1998,
among AFTERMARKET TECHNOLOGY CORP., a Delaware corporation (the "BORROWER"), the
several banks and other financial institutions from time to time parties to this
Agreement (the "LENDERS"), CHASE SECURITIES INC., as global arranger (the
"Global Arranger") and THE CHASE MANHATTAN BANK, a New York banking corporation,
as agent for the Lenders hereunder (in such capacity, the "Agent").
WHEREAS, the Borrower, Chase and certain financial institutions are
parties to a Revolving Credit Agreement, dated as of February 14, 1997 (as
amended, the "Existing Credit Agreement"); and
WHEREAS, the parties hereto wish to amend and restate the Existing
Credit Agreement as herein provided;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, the parties hereto agree that the Existing Credit
Agreement shall be and hereby is amended and restated in its entirety as
follows:
SECTION 1. DEFINITIONS
1.1 DEFINED TERMS. As used in this Agreement, the following terms
shall have the following meanings:
"ABR": for any day, a rate per annum (rounded upwards, if necessary,
to the next 1/16 of 1%) equal to the greatest of (a) the Prime Rate in
effect on such day, (b) the Base CD Rate in effect on such day plus 1% and
(c) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1%.
For purposes hereof: "PRIME RATE" shall mean the rate of interest per
annum publicly announced from time to time by the Agent as its prime rate
in effect at its principal office in New York City (the Prime Rate not
being intended to be the lowest rate of interest charged by the Chase
Manhattan Bank in connection with extensions of credit to debtors); "BASE
CD RATE" shall mean the sum of (a) the product of (i) the Three-Month
Secondary CD Rate and (ii) a fraction, the numerator of which is one and
the denominator of which is one minus the C/D Reserve Percentage and (b)
the C/D Assessment Rate; "C/D ASSESSMENT RATE" shall mean, for any day, the
annual assessment rate in effect on such day which is payable by a member
of the Bank Insurance Fund maintained by the Federal Deposit Insurance
Corporation (the "FDIC") classified as well-
<PAGE>
2
capitalized and within supervisory subgroup "B" (or a comparable
successor assessment risk classification) within the meaning of 12
C.F.R. Section 327.3(d) (or any successor provision) to the FDIC (or any
successor) for the FDIC's (or such successor's) insuring time deposits
at offices of such institution in the United States; "C/D RESERVE
PERCENTAGE" shall mean, for any day, that percentage (expressed as a
decimal) which is in effect on such day, as prescribed by the Board of
Governors of the Federal Reserve System (or any successor) (the
"BOARD"), for determining the maximum reserve requirement for a
Depositary Institution (as defined in Regulation D of the Board) in
respect of new non-personal time deposits in Dollars having a maturity
of 30 days or more; "THREE-MONTH SECONDARY CD RATE" shall mean, for any
day, the secondary market rate for three-month certificates of deposit
reported as being in effect on such day (or, if such day shall not be a
Business Day, the next preceding Business Day) by the Board through the
public information telephone line of the Federal Reserve Bank of New
York (which rate will, under the current practices of the Board, be
published in Federal Reserve Statistical Release H.15(519) during the
week following such day), or, if such rate shall not be so reported on
such day or such next preceding Business Day, the average of the
secondary market quotations for three-month certificates of deposit of
major money center banks in New York City received at approximately
10:00 A.M., New York City time, on such day (or, if such day shall not
be a Business Day, on the next preceding Business Day) by the Agent from
three New York City negotiable certificate of deposit dealers of
recognized standing selected by it; and "FEDERAL FUNDS EFFECTIVE RATE"
shall mean, for any day, the weighted average of the rates on overnight
federal funds transactions with members of the Federal Reserve System
arranged by federal funds brokers, as published on the next succeeding
Business Day by the Federal Reserve Bank of New York, or, if such rate
is not so published for any day which is a Business Day, the average of
the quotations for the day of such transactions received by the Agent
from three federal funds brokers of recognized standing selected by it.
Any change in the ABR due to a change in the Prime Rate, the Three-Month
Secondary CD Rate or the Federal Funds Effective Rate shall be effective
as of the opening of business on the effective day of such change in the
Prime Rate, the Three-Month Secondary CD Rate or the Federal Funds
Effective Rate, respectively.
"ABR LOANS": Loans the rate of interest applicable to which is based
upon the ABR.
"ACQUISITION": the acquisition by the Borrower, through Acquisition
Corp., of certain assets of Autocraft pursuant to the Purchase Agreement.
"ACQUISITION CORP": the collective reference to any newly created
acquisition vehicles in connection with the Acquisition.
"ADJUSTMENT DATE": each date on or after June 30, 1998, that is the
second Business Day following receipt by the Agent of both (i) the
financial statements required to be delivered pursuant to subsection 7.1(a)
or 7.1(b), as applicable, for the most recently completed four fiscal
quarters and (ii) the related Compliance Certificate required to be
delivered pursuant to subsection 7.2(b) with respect to such four fiscal
quarters.
<PAGE>
3
"AFFILIATE": as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled
by, or is under common control with, such Person. For purposes of this
definition, "control" of a Person means the power, directly or indirectly,
either to (a) vote 10% or more of the securities having ordinary voting
power for the election of directors of such Person or (b) direct or cause
the direction of the management and policies of such Person, whether by
contract or otherwise.
"AGENT": the Chase Manhattan Bank, together with its affiliates, as
the agent for the Lenders under this Agreement and the other Loan
Documents.
"AGENT'S PAYMENT OFFICE": the Agent's office located at One Chase
Manhattan Plaza, New York, New York, or such other office as may be
designated by the Agent by written notice to the Borrower and the Lenders.
"AGGREGATE OUTSTANDING EXTENSIONS OF CREDIT": as to any Lender at any
time, an amount equal to the sum of (a) the aggregate principal amount of
all Loans made by such Lender then outstanding, (b) such Lender's
Commitment Percentage of the aggregate unpaid principal amount at such time
of all Swing Line Loans, and (c) such Lender's Commitment Percentage of the
L/C Obligations then outstanding.
"AGREEMENT": this Amended and Restated Credit Agreement, as amended,
supplemented or otherwise modified from time to time.
"APPLICABLE MARGIN": initially, 0% in the case of ABR Loans and 1.00%
in the case of Eurodollar Loans; PROVIDED that, such Applicable Margin
will be adjusted on each Adjustment Date to the applicable rate per annum
set forth under the heading "ABR Applicable Margin" or "Eurodollar
Applicable Margin" on Schedule A which corresponds to the Leverage Ratio
determined based on the financial statements and Compliance Certificate
relating to the end of the four fiscal quarters of the Borrower immediately
preceding such Adjustment Date; PROVIDED that, notwithstanding the
foregoing, for the period from the Closing Date until the first Adjustment
Date to occur after December 31, 1998, the Applicable Margin in respect of
Loans shall not be less than the initial Applicable Margin set forth above;
and PROVIDED, FURTHER, that in the event that the financial statements
required to be delivered pursuant to subsection 7.1(a) or 7.1(b), as
applicable, and the related Compliance Certificate required to be delivered
pursuant to subsection 7.2(b), are not delivered when due, then
(a) if such financial statements and Compliance Certificate are
delivered after the date such financial statements and Compliance
Certificate were required to be delivered (without giving effect to
any applicable cure period) and the Applicable Margin increases from
that previously in effect as a result of the delivery of such
financial statements and Compliance Certificate, then the Applicable
Margin in respect of the Loans during the period from the date upon
which such financial statements and Compliance Certificate were
required to be
<PAGE>
4
delivered (without giving effect to any applicable cure period) until
the date upon which they actually are delivered shall, except as
otherwise provided in clause (c) below, be the Applicable Margin as
so increased;
(b) if such financial statements and Compliance Certificate are
delivered after the date such financial statements and Compliance
Certificate were required to be delivered and the Applicable Margin
decreases from that previously in effect as a result of the delivery
of such financial statements and Compliance Certificate, then such
decrease in the Applicable Margin shall not become applicable until
the date upon which such financial statements and Compliance
Certificate actually are delivered; and
(c) if such financial statements and Compliance Certificate are
not delivered prior to the expiration of the applicable cure period,
then, effective upon such expiration, for the period from the date
upon which such financial statements and Compliance Certificate were
required to be delivered (after the expiration of the applicable cure
period) until two Business Days following the date upon which such
financial statements and Compliance Certificate actually are
delivered, the Applicable Margin in respect of the Loans shall be
0.25% per annum, in the case of ABR Loans, and 1.25% per annum, in the
case of Eurodollar Loans.
"APPLICATION": an application, in such form as the Issuing Lender may
specify from time to time, requesting the Issuing Lender to open a Letter
of Credit.
"ASSIGNEE": as defined in subsection 11.6(c).
"AUTOCRAFT": Autocraft Industries, Inc., an Oklahoma corporation.
"AVAILABLE REVOLVING CREDIT COMMITMENT": as to any Lender at any
time, an amount equal to the excess, if any, of (a) the amount of such
Lender's Revolving Credit Commitment over (b) such Lender's Revolving
Credit Exposure.
"AURORA": Aurora Capital Partners L.P., a California limited
partnership.
"BANK ASSIGNEE": as defined in subsection 11.6(c).
"BORROWING CERTIFICATE": a certificate of the Borrower, substantially
in the form of Exhibit D.
"BORROWING DATE": any Business Day specified in a notice pursuant to
subsection 2.2 or 2.5 as a date on which the Borrower requests the Lenders
to make Loans hereunder.
"BUSINESS": as defined in subsection 5.16.
<PAGE>
5
"BUSINESS DAY": a day other than a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law
to close; PROVIDED, that with respect to any borrowings, disbursements and
payments in respect of and calculations, interest rates and Interest
Periods pertaining to Eurodollar Loans, such day is also a day on which
dealings are carried on in the relevant interbank Eurodollar market.
"CANADIAN SUBSIDIARIES": Mascot and King-O-Matic.
"CAPITAL STOCK": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person (other than a
corporation) and any and all warrants or options to purchase any of the
foregoing.
"CASH EQUIVALENTS": (a) securities with maturities of one year or
less from the date of acquisition issued or fully guaranteed or insured by
the United States Government or any agency thereof, (b) certificates of
deposit of any Lender, eurodollar deposits, time deposits, overnight bank
deposits, bankers acceptances and repurchase agreements of any commercial
bank which has capital and surplus in excess of $200,000,000 having
maturities of one year or less from the date of acquisition, (c) commercial
paper of an issuer rated at least A-2 by Standard & Poor's Corporation and
P-2 by Moody's Investors Service, Inc., or carrying an equivalent rating by
a nationally recognized rating agency if both of the two named rating
agencies cease publishing ratings of investments having maturities of six
months or less from the date of acquisition, (d) securities with maturities
of one year or less from the date of acquisition issued or fully guaranteed
by any state, commonwealth or territory of the United States, by any
political subdivision or taxing authority of any such state, commonwealth
or territory or by any foreign government, the securities of which state,
commonwealth, territory, political subdivision, taxing authority or foreign
government (as the case may be) are rated at least AA by S&P or Aa by
Moody's, (e) securities with maturities of one year or less from the date
of acquisition fully backed by standby letters of credit issued by any
Lender or any commercial bank in each case satisfying the requirements of
clause (b) of this definition and (f) money market accounts or funds which
invest primarily in the types of securities described in (a) through (c)
above.
"CHANGE OF CONTROL": the occurrence of any of the following events:
(i) any sale, transfer or other conveyance, whether direct or indirect, of
all or substantially all of the assets of the Borrower, on a consolidated
basis, in one transaction or a series of related transactions, if,
immediately after giving effect to such transaction, any Person or "group"
(within the meaning of Section 13(d) or 14(d) of the Securities Exchange
Act of 1934, as amended) other than any Excluded Person is or becomes the
"beneficial owner," directly or indirectly, of more than 35% of the total
voting power in the aggregate normally entitled to vote in the election of
directors, managers or trustees, as applicable, of the transferee, (ii) any
Person or "group" (within the meaning of Section 13(d) or 14(d) of the
Securities Exchange Act of 1934, as amended) other than any Excluded Person
is or becomes the "beneficial owner," directly or indirectly, of more than
35% of the total voting power in the aggregate of all classes of Capital
Stock of the Borrower then
<PAGE>
6
outstanding normally entitled to vote in elections of directors, unless
the percentage so owned by Excluded Persons is greater or (iii) during
any period of 12 consecutive months after the Closing Date, individuals
who at the beginning of any such 12 month period constituted the Board
of Directors of the Borrower (together with any new directors whose
election by such Board or whose nomination for election by the
shareholders of the Borrower was approved by a vote of a majority of the
directors then still in office who were either directors at the
beginning of such period or whose election or nomination for election
was previously so approved) cease for any reason to constitute a
majority of the Board of Directors of the Borrower then in office.
"CHASE": The Chase Manhattan Bank, a New York banking corporation.
"CLOSING DATE": the date on which the conditions precedent set forth
in subsection 6.1 shall be satisfied or waived.
"CODE": the Internal Revenue Code of 1986, as amended.
"COLLATERAL": all assets of the Loan Parties, now owned or
hereinafter acquired, upon which a Lien is purported to be created by any
Security Agreement.
"COMMERCIAL LETTER OF CREDIT": as defined in subsection 3.1(b)(i)(2).
"COMMITMENTS": the collective reference to the Revolving Credit
Commitments and the Term Loan Commitments.
"COMMITMENT PERCENTAGE": as to any Lender at any time, the percentage
which the sum of (i) the unpaid principal amount of the outstanding Term
Loans held by such Lender at such time and (ii) the Revolving Credit
Commitment of such Lender (or, if the Revolving Credit Commitments have
expired or been terminated, the Revolving Credit Exposure of such Lender)
at such time then constitutes of the sum of (x) the aggregate outstanding
principal amount of the Term Loans held by all Lenders and (y) the
aggregate Revolving Credit Commitments of all Lenders (or, if the Revolving
Credit Commitments have expired or been terminated, the aggregate Revolving
Credit Exposures of all Lenders).
"COMMONLY CONTROLLED ENTITY": an entity, whether or not incorporated,
which is under common control with the Borrower within the meaning of
Section 4001 of ERISA or is part of a group which includes the Borrower and
which is treated as a single employer under Section 414 of the Code.
"COMPLIANCE CERTIFICATE": as defined in subsection 7.2(b).
"CONSOLIDATED CAPITAL EXPENDITURES": of any Person for any period,
the amount of expenditures of such Person, determined on a consolidated
basis in accordance with GAAP (whether accrued under Capital Leases or
otherwise), for such period in respect of the purchase or other acquisition
of fixed or capital assets (excluding any such asset
<PAGE>
7
acquired in connection with normal replacement and maintenance programs
properly charged to current operations).
"CONSOLIDATED EBITDA": of any Person for any period, Consolidated Net
Income of such Person for such period PLUS, without duplication and to the
extent reflected as a charge in the statement of such Consolidated Net
Income, the sum of (a) provision for income and franchise tax expense, (b)
Consolidated Interest Expense, (c) depreciation and amortization expense,
(d) amortization of intangibles (including, but not limited to, goodwill),
organization costs and deferred financing costs, (e) writeoff of goodwill
and other non cash charges, including, without limitation, interest expense
representing payment in the form of non-cash "payment-in-kind" instruments,
and (f) any extraordinary losses (including, whether or not otherwise
includable as a separate item in the statement of such Consolidated Net
Income, losses on the sales of assets outside of the ordinary course of
business), MINUS, without duplication and to the extent reflected as a
charge in the statement of such Consolidated Net Income, any extraordinary
gains (including, whether or not otherwise includable as a separate item in
the statement of such Consolidated Net Income, gains on the sales of assets
outside of the ordinary course of business).
"CONSOLIDATED INTEREST EXPENSE": of any Person for any period the
amount of cash interest expense, determined on a consolidated basis in
accordance with GAAP, for such period on the aggregate principal amount of
its Indebtedness.
"CONSOLIDATED LEASE EXPENSE": for any Person for any period, the
aggregate amount of fixed and contingent rentals payable by such Person
with respect to such period, determined on a consolidated basis in
accordance with GAAP, for such period with respect to operating leases of
real and personal property.
"CONSOLIDATED NET INCOME": of any Person for any period, net income
of such Person for such period, determined on a consolidated basis in
accordance with GAAP.
"CONSOLIDATED NET WORTH": of any Person, as of the date of
determination, the sum of (i) all items which in conformity with GAAP would
be included under shareholders' equity on a consolidated balance sheet of
such Person at such date PLUS (ii) mandatorily redeemable preferred stock
of the Borrower which by its terms is not mandatorily redeemable or
redeemable at the option of the holder thereof prior to the Termination
Date.
"CONSOLIDATED TOTAL INDEBTEDNESS": of any Person, as of the date of
determination, all Indebtedness of such Person which, in accordance with
GAAP, would be included as Indebtedness on a consolidated balance sheet of
such Person at such date.
"CONTRACTUAL OBLIGATION": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
<PAGE>
8
"CSI": Chase Securities Inc.
"DEFAULT": any of the events specified in Section 9, whether or not
any requirement for the giving of notice, the lapse of time, or both, or
any other condition, has been satisfied.
"DOLLARS" and "$": dollars in lawful currency of the United States of
America.
"ELIGIBLE ACCOUNTS": the gross outstanding balance, determined in
accordance with GAAP and stated on a basis consistent with the historical
practices of the Borrower as of the date hereof, of accounts receivable of
the Borrower and its Subsidiaries arising out of sales of goods or services
made by the Borrower and its Subsidiaries in the ordinary course of
business ("ACCOUNTS") that the Borrower, in its reasonable discretion,
shall deem eligible, less all finance charges, late fees and other fees
that are unearned, and less (i) the value of any accrual which has been
recorded by the Borrower with respect to downward price adjustments and
(ii) such other reserves as the Borrower, in its reasonable discretion,
shall deem appropriate.
"ELIGIBLE INVENTORY": all inventory of the Borrower and its
Subsidiaries ("INVENTORY"), valued at the lower of (i) cost determined in
accordance with GAAP and stated on a basis consistent with the historical
practices of the Borrower as of the date hereof or (ii) market value, that
the Borrower, in its reasonable discretion, shall deem eligible, reduced by
(x) the value of reserves which have been recorded by the Borrower with
respect to obsolete, slow-moving or excess Inventory and (y) such other
reserves as the Borrower, in its reasonable discretion, shall deem
appropriate.
"ENVIRONMENTAL LAWS": any and all foreign, Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority or other Requirements
of Law (including common law) regulating, relating to or imposing liability
or standards of conduct concerning protection of human health or the
environment, as now or may at any time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"EUROCURRENCY RESERVE REQUIREMENTS": for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the rates
(expressed as a decimal fraction) of reserve requirements in effect on such
day (including, without limitation, basic, supplemental, marginal and
emergency reserves under any regulations of the Board of Governors of the
Federal Reserve System or other Governmental Authority having jurisdiction
with respect thereto) dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities"
in Regulation D of such Board) maintained by the Agent.
"EURODOLLAR BASE RATE": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, the rate per annum equal to the
rate at which Chase is
<PAGE>
9
offered Dollar deposits at or about 10:00 A.M., New York City time, two
Business Days prior to the beginning of such Interest Period in the
interbank eurodollar market where the eurodollar and foreign currency
and exchange operations in respect of its Eurodollar Loans are then
being conducted for delivery on the first day of such Interest Period
for the number of days comprised therein and in an amount comparable to
the amount of its Eurodollar Loan to be outstanding during such Interest
Period.
"EURODOLLAR LOANS": Loans the rate of interest applicable to which is
based upon the Eurodollar Rate.
"EURODOLLAR RATE": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upward to the
nearest 1/100th of 1%):
Eurodollar Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"EURODOLLAR TRANCHE": the collective reference to Eurodollar Loans
the then current Interest Periods with respect to all of which begin on the
same date and end on the same later date (whether or not such Loans shall
originally have been made on the same day).
"EVENT OF DEFAULT": any of the events specified in Section 9,
PROVIDED that any requirement for the giving of notice, the lapse of time,
or both, or any other condition, has been satisfied.
"EXCLUDED PERSON": (a) the Borrower or any wholly-owned Subsidiary
which is a Guarantor, (b) any employee benefit plan of the Borrower or any
wholly owned Subsidiary which is a Guarantor or any trustee or similar
fiduciary holding Capital Stock of the Borrower for or pursuant to the
terms of any such plan and (c) all Related Persons of the Borrower as of
the Closing Date and any Person that becomes a Related Person of such
Related Person thereafter.
"EXISTING CREDIT AGREEMENT": as defined in the recitals hereto.
"EXTENSION OF CREDIT": as to any Lender, (a) the making of a
Revolving Credit Loan, a Term Loan or a Swing Line Loan by such Lender or
(b) the issuance of, or participation in, a Letter of Credit by such
Lender.
"FINANCING LEASE": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance
with GAAP to be capitalized on a balance sheet of the lessee.
"GAAP": generally accepted accounting principles in the United States
of America in effect from time to time.
<PAGE>
10
"GLOBAL ARRANGER": CSI, as the arranger of the Commitments under this
Agreement and the other Loan Documents.
"GOVERNMENTAL AUTHORITY": any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"GUARANTEE AND COLLATERAL AGREEMENT": the guarantee and collateral
agreement to be executed and delivered by the Borrower and its domestic
Subsidiaries, substantially in the form of Exhibit B, as the same may be
amended, supplemented or otherwise modified from time to time.
"GUARANTEE OBLIGATION": as to any Person (the "GUARANTEEING PERSON"),
any obligation of (a) the guaranteeing person or (b) another Person
(including, without limitation, any bank under any letter of credit) to
induce the creation of which the guaranteeing person has issued a
reimbursement, counterindemnity or similar obligation, in either case
guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends
or other obligations (the "PRIMARY OBLIGATIONS") of any other third Person
(the "PRIMARY OBLIGOR") in any manner, whether directly or indirectly,
including, without limitation, any obligation of the guaranteeing person,
whether or not contingent, (i) to purchase any such primary obligation or
any property constituting direct or indirect security therefor, (ii) to
advance or supply funds (1) for the purchase or payment of any such primary
obligation or (2) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase property, securities or services
primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such
primary obligation or (iv) otherwise to assure or hold harmless the owner
of any such primary obligation against loss in respect thereof; PROVIDED,
HOWEVER, that the term Guarantee Obligation shall not include endorsements
of instruments for deposit or collection in the ordinary course of
business. The amount of any Guarantee Obligation of any guaranteeing
person as of any date of determination shall be deemed to be the lower of
(a) an amount equal to the then stated or determinable amount of the
primary obligation in respect of which such Guarantee Obligation is made
and (b) the maximum amount for which such guaranteeing person may be liable
pursuant to the terms of the instrument embodying such Guarantee
Obligation, unless such primary obligation and the maximum amount for which
such guaranteeing person may be liable are not stated or determinable, in
which case the amount of such Guarantee Obligation shall be such
guaranteeing person's maximum reasonably anticipated liability in respect
thereof as determined by such Person in good faith.
"GUARANTOR": any Person delivering a guarantee pursuant to the
Guarantee and Collateral Agreement.
"HEDGING AGREEMENT": with respect to any Person, any interest
rate or currency exchange rate swap agreement, interest or currency
exchange rate future, interest or currency exchange rate option,
interest or currency exchange rate cap
<PAGE>
11
or other interest or currency rate hedge arrangement, to or under which
such Person is a party or a beneficiary.
"INDEBTEDNESS": of any Person at any date, (a) all indebtedness of
such Person for borrowed money or for the deferred purchase price of
property or services (other than trade liabilities and accrued expenses
incurred in the ordinary course of business and payable not more than 12
months after the incurrence thereof in accordance with customary
practices), (b) any other indebtedness of such Person which is evidenced by
a note, bond, debenture or similar instrument, (c) all obligations of such
Person under Financing Leases, (d) all obligations of such Person in
respect of acceptances issued or created for the account of such Person,
(e) all liabilities secured by any Lien on any property owned by such
Person whether or not such Person has not assumed or otherwise become
liable for the payment thereof, (f) unreimbursed drawings under letters of
credit and (g) for the purposes of subsection 8.2 (other than clauses (a)
through (f) and (i) thereof) and 9(e) only, all obligations or liabilities
under Hedging Agreements, PROVIDED that for the purposes of subsection
9(e), the "principal amount" of the obligations of such Person in respect
of any Hedging Agreement at any time shall be the maximum aggregate amount
(giving effect to any netting agreements) that such Person would be
required to pay if such Hedging Agreement were terminated at such time.
For the purposes of any financial calculation hereunder, the amount of any
Indebtedness at any date shall be the principal or similar primary amount
of such obligation on such date, including capitalized interest (i.e.,
indebtedness issued in lieu of cash payment of interest or interest on
which interest is accruing) and capitalized payment obligations with
respect thereto, in each such case, as of such date.
"INDENTURES": as defined in subsection 5.20.
"INSOLVENCY": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"INSOLVENT": pertaining to a condition of Insolvency.
"INTEREST PAYMENT DATE": (a) as to any ABR Loan, the last day of each
March, June, September and December to occur while such Loan is
outstanding, (b) as to any Eurodollar Loan having an Interest Period of
three months or less, the last day of such Interest Period and (c) as to
any Eurodollar Loan having an Interest Period longer than three months,
each day which is three months, or a whole multiple thereof, after the
first day of such Interest Period and the last day of such Interest Period.
"INTEREST PERIOD": with respect to any Eurodollar Loan:
(i) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such Eurodollar
Loan and ending one, two, three, six or, if available to all Lenders,
nine months thereafter, as selected by the Borrower in its notice of
borrowing or notice of conversion, as the case may be, given with
respect thereto; and
<PAGE>
12
(ii) thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such Eurodollar Loan and
ending one, two, three, six or, if available to all Lenders, nine
months thereafter, as selected by the Borrower by irrevocable notice
to the Agent not less than three Business Days prior to the last day
of the then current Interest Period with respect thereto;
PROVIDED that, all of the foregoing provisions relating to Interest Periods
are subject to the following:
(1) if any Interest Period pertaining to a Eurodollar Loan would
otherwise end on a day that is not a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless
the result of such extension would be to carry such Interest Period
into another calendar month in which event such Interest Period shall
end on the immediately preceding Business Day;
(2) any Interest Period that would otherwise extend beyond the
Termination Date shall end on the Termination Date; and
(3) any Interest Period pertaining to a Eurodollar Loan that
begins on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar month
at the end of such Interest Period) shall end on the last Business Day
of a calendar month.
"ISSUING LENDER": Chase or one of its Affiliates or another Lender or
Lenders designated by the Borrower and the Agent.
"KING-O-MATIC": King-O-Matic Industries Limited, a Canadian
subsidiary of the Borrower.
"L/C OBLIGATIONS": at any time, an amount equal to the sum of (a) the
aggregate then undrawn and unexpired amount of the then outstanding Letters
of Credit and (b) the aggregate amount of drawings under Letters of Credit
which have not then been reimbursed pursuant to subsection 3.4(a).
"L/C PARTICIPANTS": the collective reference to all the Lenders
holding Revolving Credit Commitments other than the Issuing Lender.
"LETTERS OF CREDIT": as defined in subsection 3.1(a).
"LEVERAGE RATIO": as of the end of each fiscal quarter of the
Borrower, with respect to the Borrower and its Subsidiaries on a
consolidated basis, the ratio of Consolidated Total Indebtedness as of such
date to Consolidated EBITDA for the four fiscal quarters of the Borrower
then ended; PROVIDED that for purposes of calculating Consolidated EBITDA
of the Borrower and its Subsidiaries for any period for inclusion in the
Leverage Ratio for the purposes of subsection 8.1(a) only, (i) the
Consolidated
<PAGE>
13
EBITDA of any Person acquired by the Borrower or its Subsidiaries during
such period shall be included on a PRO FORMA basis for such period
(assuming the consummation of such acquisition and the incurrence or
assumption of any Indebtedness in connection therewith occurred on the
first day of such period) if the consolidated balance sheet of such
acquired Person and its consolidated Subsidiaries as at the end of the
period preceding the acquisition of such Person and the related
consolidated statements of income and stockholders' equity and of cash
flows for the period in respect of which Consolidated EBITDA is to be
calculated (x) have been previously provided to the Agent and the
Lenders and (y) either (A) have been reported on without a qualification
arising out of the scope of the audit by independent certified public
accountants of nationally recognized standing or (B) have been found
acceptable by the Agent (it being agreed that, for the purposes of
determining such PRO FORMA Consolidated EBITDA in connection with the
Acquisition, the Consolidated EBITDA of the OEM Division shall be deemed
to be $4,375,000 for each fiscal quarter of 1997 and $3,500,000 for the
period from January 1, 1998 through March 6, 1998), and (ii) the
Consolidated EBITDA of any Person (or attributable to assets
constituting a significant business unit) disposed of by the Borrower or
its Subsidiaries during such period shall be excluded on a PRO FORMA
basis for such period (assuming the consummation of such disposition in
connection therewith occurred on the first day of such period).
"LIEN": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement
or preferential arrangement of any kind or nature whatsoever which makes
any property or asset available for the payment or performance of any
liability in priority to the payment or performance of ordinary, unsecured
creditors (including, without limitation, any conditional sale or other
title retention agreement and any Financing Lease having substantially the
same economic effect as any of the foregoing).
"LOAN": any loan made by any Lender pursuant to this Agreement.
"LOAN DOCUMENTS": this Agreement, the Notes, the Applications, the
Security Agreements and any Hedging Agreement to which any Lender is a
party in respect of any Loans made hereunder.
"LOAN PARTIES": the Borrower and each Subsidiary which is a party to
a Loan Document.
"MASCOT": Mascot Truck Parts Inc., a Canadian subsidiary of the
Borrower.
"MATERIAL ADVERSE EFFECT": a material adverse effect on (a) the
business, operations, property, condition (financial or otherwise) of the
Borrower and its Subsidiaries taken as a whole or (b) the validity or
enforceability of this Agreement, any of the Notes or any Application or
any of the other Loan Documents or the material rights or remedies of the
Agent or the Lenders hereunder or thereunder.
<PAGE>
14
"MATERIALS OF ENVIRONMENTAL CONCERN": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as
such in or under any Environmental Law, including, without limitation,
asbestos, polychlorinated biphenyls and urea-formaldehyde insulation.
"MULTIEMPLOYER PLAN": a Plan which is a multiemployer plan as defined
in Section 4001(a)(3) of ERISA.
"NEW LENDING OFFICE": as defined in subsection 4.13(b).
"NET PROCEEDS": with respect to any sale, transfer or other
disposition of any property or asset of the Borrower or any of its
Subsidiaries, the net amount equal to the aggregate amount received in cash
(including any cash received by way of deferred payment pursuant to a note
receivable, other non-cash consideration or otherwise, but only as and when
such cash is so received) in connection with such asset sale MINUS the sum
of (i) the principal amount of Indebtedness which is secured by any such
asset (other than Indebtedness assumed by the purchaser of such asset) and
which is required to be, and is, repaid in connection with the sale or
disposition thereof (other than Indebtedness outstanding hereunder), (ii)
the reasonable fees (including, without limitation, reasonable attorneys'
fees), commissions and other out-of-pocket expenses (as evidenced by
supporting documentation provided to the Agent and as reasonably approved
by the Agent) incurred by the Borrower in connection with such asset sale
and (iii) federal, state and local taxes incurred by the Borrower in
connection with such sale, whether payable at such time or thereafter.
"1994 SENIOR SUBORDINATED NOTES": the senior subordinated notes due
2004, in aggregate principal amount at any time outstanding not exceeding
$90,000,000, issued by the Borrower pursuant to the Indenture dated as of
August 2, 1994.
"1995 SENIOR SUBORDINATED NOTES": the senior subordinated notes due
2004, in aggregate principal amount at any time outstanding not exceeding
$30,000,000, issued by the Borrower pursuant to the Indenture dated as of
June 1, 1995.
"NON-EXCLUDED TAXES": as defined in subsection 4.13(a).
"NON-U.S. LENDER": as defined in subsection 4.13(b).
"NOTES": the collective reference to the Revolving Credit Notes, the
Term Notes and the Swing Line Note.
"OEM DIVISION": the collective reference to the assets acquired
pursuant to the Acquisition.
"PARTICIPANT": as defined in subsection 11.6(b).
<PAGE>
15
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA.
"PERSON": an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of
whatever nature.
"PLAN": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"PROHIBITED TRANSACTION": a transaction that is prohibited under
Section 4975 of the Code or Section 406 of ERISA and not exempt under
Section 4975 of the Code or Section 408 of ERISA, respectively.
"PROPERTIES": as defined in subsection 5.16.
"PURCHASE AGREEMENT": the Purchase Agreement, dated as of February
10, 1998, between Acquisition Corp. and Autocraft.
"REGISTER": as defined in subsection 11.6(d).
"REGULATION U": Regulation U of the Board of Governors of the Federal
Reserve System as in effect from time to time.
"REIMBURSEMENT OBLIGATION": the obligation of the Borrower to
reimburse the Issuing Lender pursuant to subsection 3.4(a) for amounts
drawn under Letters of Credit.
"RELATED PERSON": (a) any Person who controls, is controlled by or
under common control with such Excluded Person; PROVIDED, HOWEVER, that for
purposes of this definition "control" means the beneficial ownership of
more than 50% of the total voting power of a Person normally entitled to
vote in the election of directors, managers or trustees, as applicable of a
Person, (b) as to any natural person, (i) such person's spouse, parents and
descendants (whether by blood or adoption, and including stepchildren) and
the spouses of any of such natural persons and (ii) any corporation,
partnership, trust or other Person in which no one has any interest
(directly or indirectly) except for any of such natural person, such
spouse, parents and descendants (whether by blood or adoption, and
including stepchildren) and the spouses of any of such natural persons and
(c) Aurora and any investment funds controlled by Aurora.
"REORGANIZATION": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section
4241 of ERISA.
"REPORTABLE EVENT": any of the events set forth in Section 4043(b) of
ERISA, other than those events as to which the thirty day notice period is
waived under
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16
subsections .13, .14, .16, .18, .19 or .20 of PBGC Reg. Section 4043.
"REQUIRED LENDERS": at any time, Lenders holding more than 50% of the
sum of (i) the aggregate unpaid principal amount of the Term Loans and (ii)
the aggregate Revolving Credit Commitments or, if the Revolving Credit
Commitments have been terminated, the aggregate Revolving Credit Exposures
of all Lenders.
"REQUIREMENT OF LAW": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"RESPONSIBLE OFFICER": the chief executive officer, the president,
the treasurer or the chief financial officer of the Borrower.
"REVOLVING CREDIT COMMITMENT": as to any Lender, the obligation of
such Lender to make Revolving Credit Loans to and/or issue or participate
in Letters of Credit on behalf of the Borrower in a principal amount not to
exceed the amount set forth opposite such Lender's name on Schedule 1.1, as
such amount may be reduced from time to time in accordance with the
provisions of this Agreement.
"REVOLVING CREDIT COMMITMENT PERCENTAGE": as to any Lender at any
time, the percentage which such Lender's Revolving Credit Commitment then
constitutes of the aggregate Revolving Credit Commitments (or, at any time
after the Revolving Credit Commitments shall have expired or been
terminated, the percentage which the aggregate principal amount of such
Lender's Revolving Credit Loans then outstanding constitutes of the
aggregate principal amount of the Revolving Credit Loans then outstanding).
"REVOLVING CREDIT COMMITMENT PERIOD": the period from and including
the Closing Date to but not including the Termination Date or such earlier
date on which the Revolving Credit Commitments shall terminate as provided
herein.
"REVOLVING CREDIT EXPOSURE" shall mean with respect to any Lender, at
any time, the sum of (a) the aggregate outstanding principal amount of such
Lender's Revolving Credit Loans at such time, plus (b) such Lender's
Revolving Credit Commitment Percentage of the L/C Obligations, plus (c)
such Lender's Revolving Credit Commitment Percentage of the Swing Line
Loans outstanding at such time; PROVIDED that, for purposes of calculating
Available Revolving Credit Commitments for the purposes of subsection
4.1(a), the amount of Swing Line Loans shall be deemed to be zero.
"REVOLVING CREDIT LENDER": a Lender with a Revolving Credit
Commitment or an outstanding Revolving Credit Loan.
"REVOLVING CREDIT LOANS": as defined in subsection 2.1(a).
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17
"REVOLVING CREDIT NOTES": as defined in subsection 4.2(e).
"SECURITY AGREEMENTS": the collective reference to the Guarantee and
Collateral Agreement, any mortgages and all other security documents
hereafter delivered to the Agent granting a Lien on any asset or assets of
any Person to secure the obligations and liabilities of the Borrower
hereunder or under any of the other Loan Documents or to secure any
guarantee of any such obligations and liabilities.
"SENIOR SUBORDINATED NOTES": the collective reference to the 1994
Senior Subordinated Notes and the 1995 Senior Subordinated Notes.
"SENIOR SUBORDINATED NOTE INDENTURE": each of the respective
Indentures described in the definitions of "1994 Senior Subordinated Notes"
and "1995 Senior Subordinated Notes".
"SINGLE EMPLOYER PLAN": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"SOLVENT" and "SOLVENCY": with respect to any Person on a particular
date, the condition that on such date, (a) the fair value of the property
of such Person is greater than the total amount of liabilities, including,
without limitation, contingent liabilities, of such Person, (b) the present
fair salable value of the assets of such Person is not less than the amount
that will be required to pay the probable liability of such Person on its
debts as they become absolute and matured, (c) such Person does not intend
to, and does not believe that it will, incur debts or liabilities beyond
such Person's ability to pay as such debts and liabilities mature, and (d)
such Person is not engaged in business or a transaction, and is not about
to engage in business or a transaction, for which such Person's property
would constitute an unreasonably small amount of capital.
"SPECIFIED PREFERRED STOCK": any preferred stock of the Borrower (as
designated in the Borrower's charter documents in effect on the date
hereof) issued to common stockholders from time to time (i) compliance with
the terms of which would not violate or be inconsistent with any of the
provisions of this Agreement and (ii) which does not have any mandatory
payment, dividend, redemption or similar covenants.
"STANDBY LETTER OF CREDIT": as defined in paragraph 3.1(b)(i)(1).
"SUBSIDIARY": as to any Person, a corporation, partnership or other
entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests
having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through
one or more intermediaries, or both, by such Person. Unless otherwise
qualified, all references to a "Subsidiary" or to "Subsidiaries" in this
Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower and,
in any case, shall include Acquisition Corp. after
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18
giving effect to the Acquisition.
"SWING LINE COMMITMENT": the Swing Line Lender's obligation to make
Swing Line Loans pursuant to subsection 2.6(a).
"SWING LINE LENDER": Chase in its capacity as provider of the Swing
Line Loans.
"SWING LINE LOANS": as defined in subsection 2.6(a).
"SWING LINE NOTE": as defined in subsection 2.6(b).
"TERM LOAN COMMITMENT": with respect to each Lender, the commitment,
if any, of such Lender to make a Term Loan hereunder on the Closing Date in
a principal amount not to exceed the amount set forth opposite such
Lender's name on Schedule 1.1.
"TERM LOAN LENDER": a Lender with a Term Loan Commitment or an
outstanding Term Loan.
"TERM LOANS": as defined in subsection 2.4.
"TERM NOTE": as defined in subsection 4.2(e).
"TERMINATION DATE": December 31, 2003.
"TRANSFEREE": as defined in subsection 11.6(f).
"TYPE": as to any Loan, its nature as an ABR Loan or a Eurodollar
Loan.
"UNIFORM CUSTOMS": the Uniform Customs and Practice for Documentary
Credits (1993 Revision), International Chamber of Commerce Publication No.
500, as the same may be amended from time to time.
"U.K. SUBSIDIARIES": U.K. Holdings and Automotive Developments, Ltd.
1.2 OTHER DEFINITIONAL PROVISIONS. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in the Notes or any certificate or other document made or delivered
pursuant hereto.
(b) As used herein and in the Notes, and any certificate or other
document made or delivered pursuant hereto, accounting terms relating to the
Borrower and its Subsidiaries not defined in subsection 1.1 and accounting terms
partly defined in subsection 1.1, to the extent not defined, shall have the
respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Section, subsection,
Schedule and Exhibit references are to this
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19
Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF CREDIT COMMITMENTS
2.1 REVOLVING CREDIT COMMITMENTS. (a) Subject to the terms and
conditions hereof, each Revolving Credit Lender severally agrees to make
revolving credit loans (each a "REVOLVING CREDIT LOAN", collectively, "REVOLVING
CREDIT LOANS") to the Borrower from time to time during the Revolving Credit
Commitment Period in an aggregate principal amount at any one time outstanding
which, when added to such Revolving Credit Lender's Revolving Credit Commitment
Percentage of the then outstanding L/C Obligations and Swing Line Loans (after
giving effect to any repayment of Swing Line Loans at the time of the making of
such Revolving Credit Loans), does not exceed the amount of such Revolving
Credit Lender's Revolving Credit Commitment.
(b) The Revolving Credit Loans may from time to time be (i)
Eurodollar Loans, (ii) ABR Loans or (iii) a combination thereof, as determined
by the Borrower and notified to the Agent in accordance with subsections 2.2 or
4.5, as applicable, PROVIDED that no Revolving Credit Loan shall be made as a
Eurodollar Loan after the day that is one month prior to the Termination Date.
During the Revolving Credit Commitment Period the Borrower may use the Revolving
Credit Commitments by borrowing, prepaying the Revolving Credit Loans in whole
or in part, and reborrowing, all in accordance with the terms and conditions
hereof.
2.2 PROCEDURE FOR REVOLVING CREDIT BORROWING. The Borrower may
borrow under the Revolving Credit Commitments during the Revolving Credit
Commitment Period on any Business Day, PROVIDED that the Borrower shall give the
Agent, except as expressly set forth in subsections 3.4 and 4.9, irrevocable
notice (which notice must be received by the Agent prior to 12:00 noon, New York
City time, (a) three Business Days prior to the requested Borrowing Date, if all
or any part of the requested Loans are to be initially Eurodollar Loans or (b)
on the day of the requested Borrowing Date, otherwise), specifying (i) the
amount to be borrowed, (ii) the requested Borrowing Date, (iii) whether the
borrowing is to be of Eurodollar Loans, ABR Loans or a combination thereof and
(iv) if the borrowing is to be entirely or partly of Eurodollar Loans, the
respective amounts of each such Type of Loan and the respective lengths of the
initial Interest Periods therefor. Each borrowing under the Revolving Credit
Commitments shall be in an amount equal to $1,000,000 or a whole multiple of
$500,000 in excess thereof (or, if the then aggregate Available Revolving Credit
Commitments are less than $500,000, such lesser amount). Upon receipt of any
such notice from the Borrower, the Agent shall promptly notify each Revolving
Credit Lender thereof. Each Revolving Credit Lender will make the amount of its
pro rata share of each borrowing available to the Agent for the account of the
Borrower at the office of the Agent specified in subsection 11.2 prior to 1:00
P.M., New York City time, on the Borrowing Date requested by the Borrower in
funds immediately available to the Agent, PROVIDED that, the Borrower shall give
the Agent and the Revolving Credit Lenders irrevocable notice by 11:00 A.M. New
York City time one Business Day before the requested Borrowing
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20
Date, if the Closing Date is a Borrowing Date, and on such date each
Revolving Credit Lender shall make such funds available to the Agent prior to
10:00 A.M., New York City time. Such borrowing will then be made available
to the Borrower by the Agent crediting the account of the Borrower on the
books of such office with the aggregate of the amounts made available to the
Agent by the Revolving Credit Lenders and in like funds as received by the
Agent.
2.3 TERMINATION OR REDUCTION OF REVOLVING CREDIT COMMITMENTS. The
Borrower shall have the right, upon not less than five Business Days' notice to
the Agent, to terminate the Revolving Credit Commitments or, from time to time,
to reduce the amount of the Revolving Credit Commitments. Any such reduction
shall be in an amount equal to $1,000,000 or a whole multiple of $1,000,000 in
excess thereof and shall reduce permanently the applicable Revolving Credit
Commitments then in effect, PROVIDED that no such termination or reduction shall
be permitted if, after giving effect thereto and to any prepayments of the
Revolving Credit Loans and Swing Line Loans made on the effective date thereof,
the aggregate principal amount of the Revolving Credit Loans then outstanding,
when added to the then outstanding L/C Obligations and the then outstanding
Swing Line Loans, would exceed the Revolving Credit Commitments then in effect.
2.4 TERM LOANS. Subject to the terms and conditions hereof each Term
Loan Lender severally agrees to make a term loan (a "TERM LOAN") to the Borrower
on the Closing Date in an amount not to exceed the amount of such Lender's Term
Loan Commitment. The Term Loans may be (a) Eurodollar Loans, (b) ABR Loans or
(c) a combination thereof, as determined by the Borrower and notified to the
Agent in accordance with subsections 2.5 and 4.5.
2.5 PROCEDURE FOR TERM LOAN BORROWING. The Borrower shall give the
Agent irrevocable telephonic notice (promptly confirmed in writing), which
notice must be received by the Agent prior to 11:00 A.M., New York time, one
Business Day prior to the anticipated Closing Date, requesting that the Term
Loan Lenders make the Term Loans on the Closing Date and specifying the amount
to be borrowed. The Term Loans made on the Closing Date shall initially be ABR
Loans and no Term Loan may be converted into or continued as a Eurodollar Loan
having an Interest Period in excess of one month until the date that is 90 days
after the Closing Date. Upon receipt of such notice the Agent shall promptly
notify each Term Loan Lender thereof. Not later than 10:00 A.M., New York time,
on the Closing Date, each Term Loan Lender shall make available to the Agent at
the Agent's Payment Office an amount in immediately available funds equal to the
Term Loan or Term Loans to be made by such Lender. The Agent shall credit the
account of the Borrower on the books of such office of the Agent with the
aggregate of the amounts made available to the Agent by the Term Loan Lenders in
immediately available funds (or, in the event that the Borrower specifies in the
notice a different account to which such amounts should be transferred, the
Agent shall transfer, by wire transfer, to such account the aggregate amount
made available to the Agent by the Term Loan Lenders in immediately available
funds).
2.6 SWING LINE COMMITMENTS. (a) Subject to the terms and conditions
hereof, the Swing Line Lender agrees to make swing line loans (individually, a
"SWING LINE LOAN"; collectively, the "SWING LINE LOANS") to the Borrower from
time to time during the Revolving
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21
Credit Commitment Period in an aggregate principal amount at any one time
outstanding not to exceed $5,000,000, PROVIDED that at no time may the sum of
the then outstanding Swing Line Loans, Revolving Credit Loans and L/C
Obligations exceed the Revolving Credit Commitments then in effect. Amounts
borrowed by the Borrower under this subsection 2.6 may be repaid and, through
but excluding the Termination Date, reborrowed. All Swing Line Loans shall
be made as ABR Loans and shall not be entitled to be converted into
Eurodollar Loans. The Borrower shall give the Swing Line Lender irrevocable
notice (which notice must be received by the Swing Line Lender prior to 3:00
p.m., New York City time) on the requested Borrowing Date specifying the
amount of the requested Swing Line Loan which shall be in an amount equal to
$250,000 or a whole multiple of $50,000 in excess thereof. The proceeds of
the Swing Line Loan will be made available by the Swing Line Lender to the
Borrower at the office of the Swing Line Lender by crediting the account of
the Borrower at such office with such proceeds in Dollars.
(b) The Borrower agrees that, upon the request to the Agent by the
Swing Line Lender made on or prior to the Closing Date or in connection with any
assignment pursuant to subsection 11.6, to evidence the Swing Line Loans the
Borrower will execute and deliver to the Swing Line Lender a promissory note
substantially in the form of Exhibit A-3, with appropriate insertions (as the
same may be amended, supplemented, replaced or otherwise modified from time to
time, the "SWING LINE NOTE"), payable to the order of the Swing Line Lender and
representing the obligation of the Borrower to pay the amount of the Swing Line
Commitment or, if less, the unpaid principal amount of the Swing Line Loans made
to the Borrower, with interest thereon as prescribed in subsection 4.7. The
Swing Line Note shall (a) be dated the Closing Date, (b) be stated to mature on
the Termination Date and (c) provide for the payment of interest in accordance
with subsection 4.7.
(c) The Swing Line Lender, at any time in its sole and absolute
discretion may, and, at any time as there shall be a Swing Line Loan outstanding
for more than seven Business Days, the Swing Line Lender shall, on behalf of the
Borrower (which hereby irrevocably directs and authorizes the Swing Line Lender
to act on its behalf), request each Revolving Credit Lender, including the Swing
Line Lender, to make a Revolving Credit Loan as an ABR Loan in an amount equal
to such Revolving Credit Lender's Revolving Credit Commitment Percentage of the
principal amount of all of the Swing Line Loans (the "REFUNDED SWING LINE
LOANS") outstanding on the date such notice is given; PROVIDED that the
provisions of this subsection shall not affect the obligations of the Borrower
to prepay Swing Line Loans in accordance with the provisions of subsection 4.4.
Unless the Commitments shall have expired or terminated for any reason,
including but not limited to, the occurrence of any of the events described in
paragraph (f) of Section 9 hereof with respect to the Borrower (in which event
the procedures of paragraph (d) of this subsection 2.6 shall apply), each Lender
will make the proceeds of its Revolving Credit Loan available to the Agent for
the account of the Swing Line Lender at the office of the Agent prior to 12:00
Noon, New York City time, in funds immediately available on the Business Day
next succeeding the date such notice is given. The proceeds of such Revolving
Credit Loans shall be immediately applied to repay the Refunded Swing Line
Loans.
(d) If the Revolving Credit Commitments shall expire or terminate (for
any reason, including but not limited to the occurrence of any of the events
described in paragraph (f) of Section 9 hereof with respect to the Borrower) at
any time while Swing Line Loans are
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22
outstanding, each Revolving Credit Lender shall, at the option of the Swing
Line Lender, either (i) notwithstanding the expiration or termination of the
Revolving Credit Commitments, make a Revolving Credit Loan as an ABR Loan
(which Revolving Credit Loan shall be deemed a "Revolving Credit Loan" for
all purposes of this Agreement and the other Loan Documents) or (ii) purchase
an undivided participating interest in such Swing Line Loans, in either case
in an amount equal to such Lender's Revolving Credit Commitment Percentage
determined on the date of, and immediately prior to, expiration or
termination of the Revolving Credit Commitments of the aggregate principal
amount of such Swing Line Loans. Each Lender will make the proceeds of any
Revolving Credit Loan made pursuant to the immediately preceding sentence
available to the Agent for the account of the Swing Line Lender at the office
of the Agent prior to 12:00 Noon, New York City time, in funds immediately
available on the Business Day next succeeding the date on which the Revolving
Credit Commitments expire or terminate. The proceeds of such Revolving
Credit Loans shall be immediately applied to repay the Swing Line Loans
outstanding on the date of termination or expiration of the Revolving Credit
Commitments. In the event that the Lenders purchase undivided participating
interests pursuant to the first sentence of this paragraph (d), each Lender
shall immediately transfer to the Swing Line Lender, in immediately available
funds, the amount of its participation.
(e) Whenever, at any time after the Swing Line Lender has received
from any Lender such Lender's participating interest in a Swing Line Loan and
the Swing Line Lender receives any payment on account thereof, the Swing Line
Lender will distribute to such Lender its participating interest in such amount
(appropriately adjusted, in the case of interest payments, to reflect the period
of time during which such Lender's participating interest was outstanding and
funded); PROVIDED, HOWEVER, that in the event that such payment received by the
Swing Line Lender is required to be returned, such Lender will return to the
Swing Line Lender any portion thereof previously distributed by the Swing Line
Lender to it.
(f) Notwithstanding anything herein to the contrary, the Swing Line
Lender shall not be obligated to make any Swing Line Loan if the conditions set
forth in subsection 6.2 have not been satisfied.
SECTION 3. LETTERS OF CREDIT
3.1 L/C COMMITMENT. (a) Subject to the terms and conditions hereof,
the Issuing Lender, in reliance on the agreements of the other Lenders set forth
in subsection 3.3(a), agrees to issue letters of credit ("LETTERS OF CREDIT")
for the account of the Borrower on any Business Day during the Revolving Credit
Commitment Period in such form as may be approved from time to time by the
Issuing Lender; PROVIDED that the Issuing Lender shall have no obligation to
issue any Letter of Credit if, after giving effect to such issuance, (i) the L/C
Obligations would exceed $10,000,000 or (ii) the aggregate Available Revolving
Credit Commitments of all Lenders would be less than zero.
(b) Each Letter of Credit shall:
(i) be denominated in Dollars and shall be either (1) a
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23
standby letter of credit issued to support obligations of the Borrower
and its Subsidiaries, contingent or otherwise, incurred in the
ordinary course of its business (a "STANDBY LETTER OF CREDIT"), or (2)
a commercial letter of credit issued to provide a primary means of
payment in respect of the purchase of goods or services by the
Borrower and its Subsidiaries in the ordinary course of business (a
"COMMERCIAL LETTER OF CREDIT"); and
(ii) expire no later than the earlier of (x) the date that
is 12 months after the date of its issuance and (y) the fifth Business
Day prior to the Termination Date.
(c) Each Letter of Credit shall be subject to the Uniform Customs and,
to the extent not inconsistent therewith, the laws of the State of New York.
(d) The Issuing Lender shall not at any time be obligated to issue any
Letter of Credit hereunder if such issuance would conflict with, or cause the
Issuing Lender or any L/C Participant to exceed any limits imposed by, any
applicable Requirement of Law.
(e) As of the Closing Date, any and all letters of credit issued and
outstanding under the Existing Credit Agreement shall be deemed to have been
issued hereunder and be deemed Letters of Credit for all purposes hereof.
3.2 PROCEDURE FOR ISSUANCE OF LETTERS OF CREDIT. The Borrower may
from time to time request that the Issuing Lender issue a Letter of Credit by
delivering to the Issuing Lender at its address for notices specified herein an
Application therefor, completed to the satisfaction of the Issuing Lender, and
such other certificates, documents and other papers and information as the
Issuing Lender may reasonably request. Upon receipt of any Application, the
Issuing Lender will process such Application and the certificates, documents and
other papers and information delivered to it in connection therewith in
accordance with its customary procedures and shall issue the Letter of Credit
requested thereby not later than four Business Days (or such later date as the
Borrower shall request) after its receipt of the Application therefor and all
such other certificates, documents and other papers and information relating
thereto as the Issuing Lender may reasonably request (but in no event shall the
Issuing Lender be required to issue any Letter of Credit earlier than three
Business Days after its receipt of the Application therefor and all such other
certificates, documents and other papers and information relating thereto) by
issuing the original of such Letter of Credit to the beneficiary thereof or as
otherwise may be agreed by the Issuing Lender and the Borrower. The Issuing
Lender shall furnish a copy of such Letter of Credit to the Borrower promptly
following the issuance thereof.
3.3 L/C PARTICIPATIONS. (a) The Issuing Lender irrevocably agrees to
grant and hereby grants to each L/C Participant, and, to induce the Issuing
Lender to issue Letters of Credit hereunder, each L/C Participant irrevocably
agrees to accept and purchase and hereby accepts and purchases from the Issuing
Lender, on the terms and conditions hereinafter stated, for such L/C
Participant's own account and risk an undivided interest equal to such L/C
Participant's Revolving Credit Commitment Percentage in the Issuing Lender's
obligations and rights under each Letter of Credit issued hereunder and the
amount of each draft paid by the Issuing Lender
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24
thereunder. Each L/C Participant unconditionally and irrevocably agrees with
the Issuing Lender that, if a draft is paid under any Letter of Credit for
which the Issuing Lender is not reimbursed in full by the Borrower in
accordance with the terms of this Agreement, such L/C Participant shall pay
to the Issuing Lender upon demand at the Issuing Lender's address for notices
specified herein an amount equal to such L/C Participant's Revolving Credit
Commitment Percentage of the amount of such draft, or any part thereof, which
is not so reimbursed.
(b) If any amount required to be paid by any L/C Participant to the
Issuing Lender pursuant to subsection 3.3(a) in respect of any unreimbursed
portion of any payment made by the Issuing Lender under any Letter of Credit is
paid to the Issuing Lender within three Business Days after the date such
payment is due, such L/C Participant shall pay to the Issuing Lender on demand
an amount equal to the product of (i) such amount, times (ii)the daily average
Federal Funds Effective Rate (as defined in the definition of ABR in subsection
1.1) during the period from and including the date such payment is required to
be made to the date on which such payment is made available to the Issuing
Lender, times (iii) a fraction the numerator of which is the number of days that
elapse during such period and the denominator of which is 360. If any such
amount required to be paid by any L/C Participant pursuant to subsection 3.3(a)
is not in fact made available to the Issuing Lender by such L/C Participant
within three Business Days after the date such payment is due, the Issuing
Lender shall be entitled to recover from such L/C Participant, on demand, such
amount with interest thereon calculated from such due date at the rate per annum
applicable to ABR Loans hereunder. A certificate of the Issuing Lender
submitted to any L/C Participant with respect to any amounts owing under this
subsection shall be conclusive in the absence of manifest error.
(c) Whenever, at any time after the Issuing Lender has made payment
under any Letter of Credit and has received from any L/C Participant its pro
rata share of such payment in accordance with subsection 3.3(a), the Issuing
Lender receives any payment related to such Letter of Credit (whether directly
from the Borrower or otherwise, including proceeds of collateral applied thereto
by the Issuing Lender), or any payment of interest on account thereof, the
Issuing Lender will distribute to such L/C Participant its pro rata share
thereof; PROVIDED, HOWEVER, that in the event that any such payment received by
the Issuing Lender shall be required to be returned by the Issuing Lender, such
L/C Participant shall return to the Issuing Lender the portion thereof
previously distributed by the Issuing Lender to it.
3.4 REIMBURSEMENT OBLIGATION OF THE BORROWER. (a) The Borrower agrees
to reimburse the Issuing Lender on each date on which the Issuing Lender
notifies the Borrower of the date and amount of a draft presented under any
Letter of Credit and paid by the Issuing Lender for the amount of (i) such draft
so paid and (ii) any taxes, fees, charges or other costs or expenses incurred by
the Issuing Lender in connection with such payment. Each such payment shall be
made to the Issuing Lender at its address for notices specified herein in
Dollars and in immediately available funds.
(b) Interest shall be payable on any and all amounts remaining unpaid
by the Borrower under this subsection from the date such amounts become payable
(whether at stated maturity, by acceleration or otherwise) until payment in full
at the rate which would be payable on any outstanding ABR Loans which were then
overdue.
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25
(c) Each drawing under any Letter of Credit shall constitute a request
by the Borrower to the Agent for a borrowing pursuant to subsection 2.2 of ABR
Loans in the amount of such drawing. The requirement of one Business Day's
prior notice for an ABR Loan set forth in subsection 2.2 shall not apply to any
borrowing under this subsection 3.4 in respect of a drawing under any Letter of
Credit. The Borrowing Date with respect to such borrowing shall be the date of
such drawing.
3.5 OBLIGATIONS ABSOLUTE. (a) To the fullest extent permitted by
applicable law, the Borrower agrees that the Borrower's obligations under this
Section 3 shall be absolute and unconditional under any and all circumstances
and irrespective of any set-off, counterclaim or defense to payment which the
Borrower may have or have had against the Issuing Lender or any beneficiary of a
Letter of Credit.
(b) To the fullest extent permitted by applicable law, the Borrower
also agrees with the Issuing Lender that the Issuing Lender shall not be
responsible for, and the Borrower's Reimbursement Obligations under subsection
3.4(a) shall not be affected by (i) the validity or genuineness of documents or
of any endorsements thereon, even though such documents shall in fact prove to
be invalid, fraudulent or forged, or (ii) any dispute between or among the
Borrower and any beneficiary of any Letter of Credit or any other party to which
such Letter of Credit may be transferred or (iii) any claims whatsoever of the
Borrower against any beneficiary of such Letter of Credit or any such
transferee.
(c) To the fullest extent permitted by applicable law, the Borrower
agrees that the Issuing Lender shall not be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any message or
advice, however transmitted, in connection with any Letter of Credit, except for
errors or omissions caused by the Issuing Lender's gross negligence or willful
misconduct.
(d) To the fullest extent permitted by applicable law, the Borrower
agrees that any action taken or omitted by the Issuing Lender under or in
connection with any Letter of Credit or the related drafts or documents, if done
in the absence of gross negligence or willful misconduct and in accordance with
the standards of care specified in the Uniform Commercial Code of the State of
New York, shall be binding on the Borrower and shall not result in any liability
of the Issuing Lender to the Borrower.
3.6 LETTER OF CREDIT PAYMENTS. If any draft shall be presented for
payment under any Letter of Credit, the Issuing Lender shall promptly notify the
Borrower and each L/C Participant of the date and amount thereof. The
responsibility of the Issuing Lender to the Borrower in connection with any
draft presented for payment under any Letter of Credit shall, in addition to any
payment obligation expressly provided for in such Letter of Credit, be limited
to determining that the documents (including each draft) delivered under such
Letter of Credit in connection with such presentment are in conformity with such
Letter of Credit.
3.7 APPLICATION. To the extent that any provision of any Application
related to any Letter of Credit is inconsistent with the provisions of this
Section 3, the provisions of this
<PAGE>
26
Section 3 shall apply.
SECTION 4. GENERAL PROVISIONS APPLICABLE
TO LOANS AND LETTERS OF CREDIT
4.1 FEES. (a) The Borrower agrees to pay to the Agent for the account
of each Revolving Credit Lender a fee for the period from and including the
Closing Date to the Termination Date, at the rate indicated on Schedule A hereto
corresponding to the Leverage Ratio in effect from time to time (as adjusted in
a manner corresponding to the adjustments to Applicable Margin set forth in the
definition thereof) on the average daily Available Revolving Credit Commitment
of such Revolving Credit Lender during the period for which payment is made,
payable quarterly in arrears on the last day of each March, June, September and
December and on the Termination Date, PROVIDED that for the period from the
Closing Date to the first Adjustment Date to occur after December 31, 1998, the
commitment fee rate shall be .375%.
(b) The Borrower shall pay to the Agent, for the account of the
Issuing Lender a fronting fee with respect to each Letter of Credit computed at
a rate per annum equal to 1/8 of 1% on the daily average undrawn amount of such
Letter of Credit. Such fronting fee shall be payable quarterly in arrears on
the last day of each March, June, September and December and on the Termination
Date and shall be nonrefundable.
(c) The Borrower shall pay to the Agent, for the account of the
Issuing Lender and the L/C Participants, a letter of credit commission with
respect to each Letter of Credit on the daily average undrawn amount of such
Letter of Credit, computed at a rate per annum equal to the Applicable Margin
for Loans which are Eurodollar Loans. Such fee shall be payable to the L/C
Participants and the Issuing Lender to be shared ratably among them in
accordance with their respective Revolving Credit Commitment Percentages. Such
commissions shall be payable quarterly in arrears on the last day of each March,
June, September and December and on the Termination Date and shall be
nonrefundable.
(d) In addition to the foregoing fees and commissions, the Borrower
shall pay or reimburse the Issuing Lender for such normal and customary costs
and expenses as are incurred or charged by the Issuing Lender in issuing,
effecting payment under, amending or otherwise administering any Letter of
Credit.
(e) The Borrower agrees to pay to Chase the amounts set forth in the
Fee Letter dated February 6, 1998, among Chase, CSI and the Borrower, in the
amounts and on the dates set forth therein.
4.2 REPAYMENT OF LOANS; EVIDENCE OF DEBT. (a) The Borrower hereby
unconditionally promises to pay (i) to the Agent for the account of each
Revolving Credit Lender the then unpaid principal amount of each Revolving
Credit Loan of such Revolving Credit Lender, on the Termination Date (or such
earlier date on which the Revolving Credit Loans become due and payable pursuant
to Section 9) and (ii) to the Agent for the account of each Term Loan Lender the
then unpaid principal amount of each Term Loan of such Term Loan
<PAGE>
27
Lender as provided in subsection 4.3. The Borrower hereby further agrees to
pay interest on the unpaid principal amount of the Loans made to it from time
to time outstanding from the date hereof until payment in full thereof at the
rates per annum, and on the dates, set forth in subsection 4.7.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing indebtedness of the Borrower to such Lender
resulting from each Loan of such Lender from time to time, including the amounts
of principal and interest payable and paid to such Lender from time to time
under this Agreement.
(c) The Agent, acting for this purpose as an agent of the Borrower,
shall maintain the Register pursuant to subsection 11.6(d) and a subaccount
therein for each Lender, in which shall be recorded (i) the amount of each Loan
made hereunder, the Type thereof and, in the case of Eurodollar Loans, each
Interest Period applicable thereto, (ii) each continuation thereof and each
conversion of all or a portion thereof to another Type, (iii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iv) both the amount of any sum received
by the Agent hereunder from the Borrower and each Lender's share thereof.
(d) The entries made in the Register and the accounts of each Lender
maintained pursuant to subsection 4.2(b) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; PROVIDED, HOWEVER, that the
failure of any Lender or the Agent to maintain the Register or any such account,
as the case may be, or any error therein, shall not in any manner affect any of
the obligations of the Borrower hereunder, including, without limitation, the
obligation to repay (with applicable interest) the Loans made to the Borrower by
such Lender in accordance with the terms of this Agreement.
(e) The Borrower agrees that, upon request to the Agent by any
Lender, the Borrower will execute and deliver to such Lender (i) a promissory
note of the Borrower evidencing the Revolving Credit Loans of such Lender,
substantially in the form of Exhibit A-1, with appropriate insertions as to date
and principal amount (a "REVOLVING CREDIT NOTE") and/or (ii) a promissory note
of the Borrower evidencing the Term Loan of such Lender, substantially in the
form of Exhibit A-2, with appropriate insertions as to date and principal amount
(a "TERM NOTE"), payable to the order of such Lender and representing the
obligation of the Borrower to pay a principal amount equal to the aggregate
unpaid principal amount of all Revolving Credit Loans and/or Term Loans of such
Lender, with interest on the unpaid principal amount thereof from time to time
outstanding under such Note(s) as set forth in subsection 4.7. A Note and the
obligations evidenced thereby may be assigned or otherwise transferred in whole
or in part only by registration of such assignment or transfer of such Note and
the obligations evidenced thereby in the Register (and each Note shall expressly
so provide). Any assignment or transfer of all or part of the obligations
evidenced by a Note shall be registered in the Register only upon surrender for
registration of assignment or transfer of the Note evidencing such obligations,
accompanied by an Assignment and Acceptance substantially in the form of Exhibit
E duly executed by the Assignor thereof, and thereupon one or more new Notes
shall be issued to the designated Assignee and the old Note shall be returned by
the Agent to the Borrower marked
<PAGE>
28
"cancelled." No assignment of a Note and the obligations evidenced thereby
shall be effective unless it shall have been recorded in the Register by the
Agent as provided in this subsection 4.2(e). Each Lender is hereby authorized
to record the date, Type and amount of each Loan made by such Lender, each
continuation thereof, each conversion of all or a portion thereof to another
Type, the date and amount of each payment or repayment of principal thereof
and, in the case of Eurodollar Loans, the length of each Interest Period with
respect thereto, on the schedule annexed to and constituting a part of any
Note requested by it to evidence such Loan, and any such recordation shall
constitute PRIMA FACIE evidence of the accuracy of the information so
recorded, PROVIDED that the failure by any Lender to make any such
recordation or any error in any such recordation shall not in any manner
affect any of the obligations of the Borrower hereunder, including, without
limitation, the obligation to repay (with applicable interest) the Loans made
to the Borrower by such Lender in accordance with the terms of this Agreement.
4.3 AMORTIZATION OF TERM LOANS. (a) Subject to adjustment pursuant to
clause (c) of this subsection, the Borrower shall repay Term Loans on each date
set forth below in the aggregate principal amount of Dollars set forth opposite
such date:
<TABLE>
<CAPTION>
DATE AMOUNT
---- ------
<S> <C>
September 30, 1998 $5,000,000
December 31, 1998 $5,000,000
March 31, 1999 $3,750,000
June 30, 1999 $3,750,000
September 30, 1999 $3,750,000
December 31, 1999 $3,750,000
March 31, 2000 $5,000,000
June 30, 2000 $5,000,000
September 30, 2000 $5,000,000
December 31, 2000 $5,000,000
March 31, 2001 $6,250,000
June 30, 2001 $6,250,000
September 30, 2001 $6,250,000
December 31, 2001 $6,250,000
March 31, 2002 $6,250,000
June 30, 2002 $6,250,000
September 30, 2002 $6,250,000
December 31, 2002 $6,250,000
March 31, 2003 $6,250,000
June 30, 2003 $6,250,000
September 30, 2003 $6,250,000
December 31, 2003 $6,250,000
</TABLE>
(b) To the extent not previously paid, all Term Loans shall be due and
payable on the Termination Date (or on such earlier date on which the Term Loans
become due and payable pursuant to Section 9).
<PAGE>
29
(c) Any prepayment of a Term Loan pursuant to subsection 4.4 shall be
applied to reduce the subsequent scheduled repayments of the Term Loans to be
made by the Borrower pursuant to this subsection as set forth in subsection 4.4.
(d) Each repayment or prepayment of a Term Loan shall be applied
ratably to the Term Loans of each Lender included in the repaid Term Loan.
4.4 OPTIONAL AND MANDATORY PREPAYMENTS. (a) The Borrower may at any
time and from time to time prepay the Loans made to it, in whole or in part,
without premium or penalty, upon at least three Business Days' in the case of
Eurodollar Loans, or same day Business Day's in the case of ABR Loans (including
Swing Line Loans), irrevocable notice to the Agent, specifying whether the
prepayment is (i) of Revolving Credit Loans, Term Loans or Swing Line Loans, or
a combination thereof, and in each case if a combination thereof, the amount
allocable to each, (ii) the date and amount of prepayment of such Loan(s) and
(iii) whether the prepayment is of Eurodollar Loans, ABR Loans or a combination
thereof, and, if of a combination thereof, the amount allocable to each. Upon
receipt of any such notice the Agent shall promptly notify each affected Lender
thereof. If any such notice is given, the amount specified in such notice shall
be due and payable on the date specified therein, together with any amounts
payable pursuant to subsection 4.14 and, in the case of prepayments of the Term
Loans only, accrued interest to such date on the amount prepaid. Partial
optional prepayments of the Term Loans shall be applied to the remaining
installments of principal thereof ratably based on the remaining amounts
thereof. Partial voluntary prepayments shall be in an aggregate principal
amount of $500,000 or a whole multiple of $500,000 in excess thereof.
(b) If at any time the sum of the Revolving Credit Loans, the Swing
Line Loans and the L/C Obligations exceeds the Revolving Credit Commitments, the
Borrower shall make a payment in the amount of such excess which payment shall
be applied FIRST, to the payment of the Swing Line Loans then outstanding,
SECOND, to the payment of any Revolving Credit Loans then outstanding, THIRD, to
payment of any Reimbursement Obligations then outstanding and LAST, to cash
collateralize any outstanding Letters of Credit on terms reasonably satisfactory
to the Required Lenders. The application of prepayments of Loans referred to in
the preceding sentence shall be made first to ABR Loans and second to Eurodollar
Loans.
(c) If, subsequent to the Closing Date, the Borrower or any of its
Subsidiaries shall receive Net Proceeds from any asset sale or other disposition
(including as a result of condemnation or casualty) permitted by subsection
8.6(b), then 100% of such Net Proceeds shall, on the first Business Day after
receipt thereof, be applied toward the prepayment of the Term Loans and, after
all Term Loans have been repaid, to the permanent reduction of the Revolving
Credit Commitments by an amount equal thereto and, to the extent required by
subsection 4.4(b), to the payment of Loans and cash collateralization of Letters
of Credit as set forth therein; PROVIDED that such Net Proceeds shall not be
required to be so applied to the extent the Borrower delivers to the Agent a
certificate that it intends to use such Net Proceeds to acquire fixed or capital
assets for the Borrower or any of its Subsidiaries within 330 days of receipt of
such Net Proceeds, it being expressly agreed that any Net Proceeds not so
reinvested shall be applied to prepay the Loans and permanently reduce the
Commitments on the date 330 days after the receipt thereof; and PROVIDED FURTHER
that such Net Proceeds shall not be required to be so applied
<PAGE>
30
until such Net Proceeds not applied hereunder exceed $2,500,000 in the
aggregate, at which time all of such unapplied Net Proceeds shall be applied
as set forth herein. Any Net Proceeds applied toward the prepayment of the
Term Loans pursuant to this subsection 4.4(c) shall be applied ratably to the
remaining installments outstanding of principal thereof.
(d) In the event of a Change of Control, not later than five days
thereafter, (A) the Revolving Credit Commitments shall be terminated, (B) the
Borrower shall prepay in full all Loans then outstanding together with interest
accrued to the date of such prepayment and any amounts payable under subsection
4.14, (C) the Borrower shall repay any Reimbursement Obligations then
outstanding and (D) the Borrower shall cash collateralize any outstanding L/C
Obligations on terms reasonably satisfactory to the Required Lenders.
4.5 CONVERSION AND CONTINUATION OPTIONS. (a) The Borrower may elect
from time to time to convert Eurodollar Loans to ABR Loans by giving the Agent
at least one Business Day's prior irrevocable notice of such election, PROVIDED
that any such conversion may only be made on the last day of an Interest Period
with respect thereto. The Borrower may elect from time to time to convert ABR
Loans to Eurodollar Loans by giving the Agent at least three Business Days'
prior irrevocable notice of such election. Any such notice of conversion to
Eurodollar Loans shall specify the length of the initial Interest Period or
Interest Periods therefor. Upon receipt of any such notice the Agent shall
promptly notify each affected Lender thereof. All or any part of outstanding
Eurodollar Loans and ABR Loans may be converted as provided herein, PROVIDED
that (i) no Loan may be converted into a Eurodollar Loan when any Event of
Default has occurred and is continuing and the Agent has or the Required Lenders
have determined that such a conversion is not appropriate and (ii) no Loan may
be converted into a Eurodollar Loan after the date that is one month prior to
the Termination Date (in the case of conversions of Revolving Credit Loans) or
the date of the final installment of principal of the Term Loans.
(b) Any Eurodollar Loans may be continued as such upon the expiration
of the then current Interest Period with respect thereto by the Borrower giving
notice to the Agent, in accordance with the applicable provisions of the term
"Interest Period" set forth in subsection 1.1, of the length of the next
Interest Period to be applicable to such Loans; PROVIDED that no Eurodollar Loan
may be continued as such (i) when any Event of Default has occurred and is
continuing and the Agent has or the Required Lenders have determined that such a
continuation is not appropriate or (ii) after the date that is one month prior
to, respectively, the Termination Date (in the case of continuations of
Revolving Credit Loans) or the date of the final installment of principal of the
Term Loans and PROVIDED, FURTHER, that if the Borrower shall fail to give such
notice or if such continuation is not permitted such Loans shall be
automatically converted to ABR Loans on the last day of such then expiring
Interest Period.
4.6 MAXIMUM NUMBER OF TRANCHES. All borrowings, conversions and
continuations of Loans hereunder and all selections of Interest Periods
hereunder shall be made pursuant to such elections so that, after giving effect
thereto, the aggregate number of Eurodollar Tranches outstanding at any time
shall not exceed twelve.
4.7 INTEREST RATES AND PAYMENT DATES. (a) Each Eurodollar Loan shall
bear
<PAGE>
31
interest for each day during each Interest Period with respect thereto at a
rate per annum equal to the Eurodollar Rate determined for such day plus the
Applicable Margin.
(b) Each ABR Loan shall bear interest for each day at a rate per annum
equal to the ABR for such day plus the Applicable Margin.
(c) If all or a portion of (i) the principal amount of any Loan or
Reimbursement Obligation, (ii) any interest payable thereon or (iii) any
commitment fee or (iv) any other amount payable hereunder shall not be paid when
due (whether at the stated maturity, by acceleration or otherwise), such overdue
amount shall bear interest at a rate per annum which is (x) in the case of
overdue principal, the rate that would otherwise be applicable thereto pursuant
to the foregoing provisions of this subsection plus 2% or (y) in the case of
overdue interest, commitment fee or other amount, the rate described in
paragraph (b) of this subsection plus 2%, in each case from the date of such
non-payment until such amount is paid in full (as well after as before
judgment).
(d) Interest shall be payable in arrears on each Interest Payment
Date, PROVIDED that interest accruing pursuant to paragraph (c) of this
subsection shall be payable from time to time on demand.
4.8 COMPUTATION OF INTEREST AND FEES. (a) Commitment fees, Letter of
Credit fees and, whenever it is calculated on the basis of the Prime Rate
component of the ABR, interest shall be calculated on the basis of a 365- (or
366-, as the case may be) day year for the actual days elapsed; and, otherwise,
interest shall be calculated on the basis of a 360-day year for the actual days
elapsed. The Agent shall as soon as practicable notify the Borrower and the
Lenders of each determination of a Eurodollar Rate. Any change in the interest
rate on a Loan resulting from a change in the ABR or the Eurocurrency Reserve
Requirements shall become effective as of the opening of business on the day on
which such change becomes effective. The Agent shall as soon as practicable
notify the Borrower and the Lenders of the effective date and the amount of each
such change in interest rate.
(b) To the fullest extent permitted by applicable law, each
determination of an interest rate by the Agent pursuant to any provision of this
Agreement shall be conclusive and binding on the Borrower and the Lenders in the
absence of manifest error. The Agent shall, at the request of the Borrower,
deliver to the Borrower a statement showing the quotations used by the Agent in
determining any interest rate pursuant to subsection 4.7(a), (b) or (c).
4.9 INABILITY TO DETERMINE INTEREST RATE. If prior to the first day
of any Interest Period, (i) the Agent shall have determined (which determination
shall be conclusive and binding upon the Borrower) that, by reason of
circumstances affecting the relevant market, adequate and reasonable means do
not exist for ascertaining the Eurodollar Rate for such Interest Period, or (ii)
the Agent shall have received notice from the Required Lenders that the
Eurodollar Rate determined for such Interest Period will not adequately and
fairly reflect the cost to such Lenders (as conclusively certified by such
Lenders) of making or maintaining their affected Loans during such Interest
Period, the Agent shall give telecopy or telephonic notice thereof to the
Borrower and the Lenders as soon as practicable thereafter. If such notice is
given (x) any Eurodollar Loans requested to be made on the first day of such
Interest Period shall be made as ABR Loans,
<PAGE>
32
(y) any Loans that were to have been converted on the first day of such
Interest Period to Eurodollar Loans shall be converted to or continued as ABR
Loans and (z) any outstanding Eurodollar Loans with respect to which the
Interest Period shall have expired shall be converted, on the first day of
such Interest Period, to ABR Loans. Until such notice has been withdrawn by
the Agent, no further Eurodollar Loans shall be made or continued as such,
nor shall the Borrower have the right to convert ABR Loans to Eurodollar
Loans.
4.10 PRO RATA TREATMENT AND PAYMENTS. (a) Each borrowing by the
Borrower from the Lenders hereunder, each payment by the Borrower on account of
any commitment fee hereunder and any reduction of the Revolving Credit
Commitments of the Lenders shall be made (in each case, other than in respect of
the Swing Line Loans) pro rata according to the respective Revolving Credit
Commitment Percentages of the Lenders. Each payment (including each prepayment)
by the Borrower on account of principal of and interest on the Loans (other than
the Swing Line Loans) shall be made pro rata according to the respective
outstanding principal amounts of the Loans then held by the Lenders. All
payments (including prepayments) to be made by the Borrower hereunder, whether
on account of principal, interest, fees or otherwise, shall be made without set
off or counterclaim and shall be made prior to 12:00 Noon, New York City time,
on the due date thereof to the Agent, for the account of the Lenders, at the
Agent's office specified in subsection 11.2, in Dollars and in immediately
available funds. The Agent shall distribute such payments to the Lenders
promptly upon receipt in like funds as received. If any payment hereunder
becomes due and payable on a day other than a Business Day, such payment shall
be extended to the next succeeding Business Day, and, with respect to payments
of principal, interest thereon shall be payable at the then applicable rate
during such extension.
(b) Unless the Agent shall have been notified in writing by any Lender
prior to a borrowing that such Lender will not make the amount that would
constitute its Revolving Credit Commitment Percentage of such borrowing
available to the Agent, the Agent may assume that such Lender is making such
amount available to the Agent, and the Agent may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. If such
amount is not made available to the Agent by the required time on the Borrowing
Date therefor, such Lender shall pay to the Agent, on demand, such amount with
interest thereon at a rate equal to the daily average Federal Funds Effective
Rate for the period until such Lender makes such amount immediately available to
the Agent. A certificate of the Agent submitted to any Lender with respect to
any amounts owing under this subsection shall be conclusive in the absence of
manifest error. If such Lender's Revolving Credit Commitment Percentage of such
borrowing is not made available to the Agent by such Lender within three
Business Days of such Borrowing Date, the Agent shall also be entitled to
recover such amount with interest thereon at the rate per annum applicable to
ABR Loans hereunder, on demand, from the Borrower.
4.11 ILLEGALITY. Notwithstanding any other provision herein, if the
adoption of or any change in any Requirement of Law (other than a requirement of
the Certificate of Incorporation, By-Laws or other organizational or governing
documents of the relevant Lender) or in the interpretation or application
thereof (except as aforesaid) shall make it unlawful for any Lender to make or
maintain Eurodollar Loans as contemplated by this Agreement, (a) the commitment
of such Lender hereunder to make Eurodollar Loans, continue Eurodollar Loans as
such and convert ABR Loans to Eurodollar Loans shall forthwith be cancelled and
(b) such
<PAGE>
33
Lender's Loans then outstanding as Eurodollar Loans, if any, shall be
converted automatically to ABR Loans on the respective last days of the then
current Interest Periods with respect to such Loans or within such earlier
period as required by law. If any such conversion of a Eurodollar Loan occurs
on a day which is not the last day of the then current Interest Period with
respect thereto, the Borrower agrees to pay to such Lender such amounts, if any,
as may be required pursuant to subsection 4.14.
4.12 REQUIREMENTS OF LAW. (a) If the adoption of or any change in any
Requirement of Law (other than a requirement of the Certificate of
Incorporation, By-Laws or other organizational or governing documents of the
relevant Lender) or in the interpretation or application thereof (except as
aforesaid) or compliance by any Lender with any request or directive (whether or
not having the force of law) from any central bank or other Governmental
Authority having jurisdiction over such Lender made subsequent to the date
hereof (or, in the case of any Lender that becomes a party hereto after the
Closing Date, subsequent to the date on which such party becomes a Lender):
(i) shall subject any Lender to any tax of any kind whatsoever with
respect to this Agreement, any Note, any Letter of Credit, any Application
or any Eurodollar Loan made by it, or change the basis of taxation of
payments to such Lender in respect thereof (except for Non-Excluded Taxes
covered by subsection 4.13 and changes in the rate of tax on the overall
net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
office of such Lender which is not otherwise included in the determination
of the Eurodollar Rate hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or issuing or participating in
Letters of Credit or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, the Borrower shall promptly pay such Lender,
upon its demand, any additional amounts necessary to compensate such Lender, on
an after-tax basis, for such increased cost or reduced amount receivable.
(b) If any Lender shall have determined in good faith that the
adoption of or any change in any Requirement of Law (other than a requirement of
the Certificate of Incorporation, By-Laws or other organizational or governing
documents of the relevant Lender) regarding capital adequacy or in the
interpretation or application thereof (except as aforesaid) or compliance by
such Lender or any corporation controlling such Lender with any request or
directive regarding capital adequacy (whether or not having the force of law)
from any Governmental Authority made subsequent to the date hereof (or, in the
case of any Lender that becomes a party hereto after the Closing Date,
subsequent to the date on which such party becomes a Lender) shall have the
effect of reducing the rate of return on such Lender's or such
<PAGE>
34
corporation's capital as a consequence of its obligations hereunder or under
any Letter of Credit to a level below that which such Lender or such
corporation could have achieved but for such adoption, change or compliance
(taking into consideration such Lender's or such corporation's policies with
respect to capital adequacy) by an amount deemed by such Lender to be
material, then the Borrower shall pay to such Lender such additional amount
or amounts as will compensate such Lender, on an after-tax basis, for such
reduction, PROVIDED that the Borrower shall be not be obligated to compensate
any Lender pursuant to this subsection 4.12 for amounts accruing prior to the
date which is 90 days before the Borrower is notified of such event, it being
understood that such notice need not include a computation of amounts in
respect thereof.
(c) If any Lender becomes entitled to claim any additional amounts
pursuant to this subsection, it shall promptly notify the Borrower, through the
Agent, of the event by reason of which it has become so entitled. A certificate
as to any additional amounts payable pursuant to this subsection 4.12 submitted
by such Lender, through the Agent, to the Borrower shall, to the fullest extent
permitted by applicable law, be conclusive in the absence of manifest error.
This covenant shall survive the termination of this Agreement and the payment of
the Loans and all other amounts payable hereunder.
4.13 TAXES. (a) All payments made by the Borrower under this
Agreement and the Notes shall be made free and clear of, and without deduction
or withholding for or on account of, any present or future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions or withholdings,
now or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority, excluding net income taxes and franchise taxes (imposed
in lieu of net income taxes) imposed on the Agent or any Lender as a result of a
present or former connection between the Agent or such Lender and the
jurisdiction of the Governmental Authority imposing such tax or any political
subdivision or taxing authority thereof or therein (other than any such
connection arising solely from the Agent or such Lender having executed,
delivered or performed its obligations or received a payment under, or enforced,
this Agreement or the Notes). If any such non-excluded taxes, levies, imposts,
duties, charges, fees, deductions or withholdings ("NON-EXCLUDED TAXES") are
required to be withheld from any amounts payable to the Agent or any Lender
hereunder or under the Notes, the amounts so payable to the Agent or such Lender
shall be increased to the extent necessary to yield to the Agent or such Lender
(after payment of all Non-Excluded Taxes) interest or any such other amounts
payable hereunder at the rates or in the amounts specified in this Agreement and
the Notes, PROVIDED, HOWEVER, that the Borrower shall not be required to
increase any such amounts payable to any Lender that is not organized under the
laws of the United States of America or a state thereof if such Lender fails to
comply with the requirements of paragraph (b) of this subsection. Whenever any
Non-Excluded Taxes are payable by the Borrower, as promptly as possible
thereafter the Borrower shall send to the Agent for its own account or for the
account of such Lender, as the case may be, a certified copy of an original
official receipt received by the Borrower showing payment thereof. If the
Borrower fails to pay any Non-Excluded Taxes when due to the appropriate taxing
authority or fails to remit to the Agent the required receipts or other required
documentary evidence, the Borrower shall indemnify the Agent and the Lenders for
any incremental taxes, interest or penalties that may become payable by the
Agent or any Lender as a result of any such failure. The agreements in this
subsection shall survive the termination of this Agreement and the payment of
the Notes and all other amounts payable hereunder.
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35
(b) Each Lender (or Transferee) that is not a citizen or resident of
the United States of America, a corporation or partnership created or organized
under the laws of the United States of America, or any estate that is subject to
Federal income taxation regardless of the source of its income or any trust
which is subject to the supervision of a court within the United States and the
control of a United States fiduciary as described in section 7701(a)(30) of the
Code (a "NON-U.S. LENDER") shall deliver to the Borrower and the Agent two
copies of either U.S. Internal Revenue Service Form 1001 or Form 4224, or, in
the case of a Non-U.S. Lender claiming exemption from U.S. Federal withholding
tax under Section 871(h) or 881(c) of the Code with respect to payments of
"portfolio interest", a Form W-8, or any subsequent versions thereof or
successors thereto (and, if such Non-U.S. Lender delivers a Form W-8, a
certificate in the form of Exhibit G, representing that such Non-U.S. Lender is
not a bank for purposes of Section 881(c) of the Code, is not a 10-percent
shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the
Borrower and is not a controlled foreign corporation related to the Borrower
(within the meaning of Section 864(d)(4) of the Code)), properly completed and
duly executed by such Non-U.S. Lender claiming complete exemption from U.S.
Federal withholding tax on all payments by the Borrower under this Agreement and
the other Loan Documents. Such forms shall be delivered by each Non-U.S. Lender
on or before the date it becomes a party to this Agreement (or, in the case of a
Transferee that is a participation holder, on or before the date such
participation holder becomes a Transferee hereunder) and on or before the date,
if any, such Non-U.S. Lender changes its applicable lending office by
designating a different lending office (a "NEW LENDING OFFICE"). In addition,
each Non-U.S. Lender shall deliver such forms promptly upon the obsolescence or
invalidity of any form previously delivered by such Non-U.S. Lender.
Notwithstanding any other provision of this subsection 4.13(b), a Non-U.S.
Lender that has previously complied with this subsection 4.13(b) shall not be
required to deliver any Form 1001 or Form 4224 pursuant to this subsection
4.13(b) that such Non-U.S. Lender is not legally able to deliver.
4.14 INDEMNITY. The Borrower agrees to indemnify each Lender and to
hold each Lender harmless from any loss or expense which such Lender may
reasonably sustain or incur as a consequence of (a) default by the Borrower in
making a borrowing of, conversion into or continuation of Eurodollar Loans after
the Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement or (b) the making of a prepayment of Eurodollar
Loans on a day which is not the last day of an Interest Period with respect
thereto. Such indemnification shall be an amount equal to the excess, if any,
of (i) the amount of interest which would have accrued on the amount so prepaid,
or not so borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
such Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Loans provided
for herein (excluding, however, the Applicable Margin included therein, if any)
over (ii) the amount of interest (as reasonably determined by such Lender) which
would have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank eurodollar
market. In the event that the Borrower defaults in making any prepayment after
the Borrower has given a notice thereof in accordance with the provisions of
this Agreement, any Eurodollar Loans in respect of which such notice has been
given shall be converted automatically
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36
to ABR Loans on the date such prepayment would have been made pursuant to
such notice. This covenant shall survive the termination of this Agreement
and the payment of the Notes and all other amounts payable hereunder until
the second anniversary of such termination and payment.
4.15 CHANGE OF LENDING OFFICE. Each Lender agrees that if it makes
any demand for payment under subsection 4.12 or 4.13(a), it shall use reasonable
efforts (consistent with its internal policy and legal and regulatory
restrictions and so long as such efforts would not be disadvantageous to it, as
determined in its sole discretion) to designate a different lending office if
the making of such a designation would reduce or obviate the need for the
Borrower to make payments under subsection 4.12 or 4.13(a).
SECTION 5. REPRESENTATIONS AND WARRANTIES
To induce the Agent and each Lender to enter into this Agreement and
to make the Extensions of Credit requested to be made by it (including the
initial Extension of Credit requested to be made by it on the Closing Date), the
Borrower hereby represents and warrants, on the Closing Date and on every
Borrowing Date thereafter, to the Agent and each Lender that:
5.1 FINANCIAL CONDITION. (a) (i) the consolidated balance sheets of
the Borrower and its consolidated Subsidiaries as of December 31, 1995 and
December 31, 1996 and the related consolidated statements of income and of cash
flows for the fiscal years ended on such dates, reported on by Ernst & Young,
copies of which have heretofore been furnished to each Lender, are complete and
correct and present fairly the consolidated financial condition of the Borrower
and its consolidated Subsidiaries as at such dates, and the consolidated results
of their operations and their consolidated cash flows for the fiscal years then
ended, (ii) the consolidated balance sheet of the OEM Division as of June 30,
1997 and the related consolidated statements of income and of cash flows for the
fiscal year ended on such date, copies of which have heretofore been furnished
to each Lender, are complete and correct and present fairly the consolidated
financial condition of the OEM Division as at such date, and the consolidated
results of its operations and its consolidated cash flows for the fiscal year
then ended, (iii) the unaudited consolidated balance sheets of the Borrower and
its consolidated Subsidiaries as at September 30, 1997 and the related unaudited
consolidated statements of income and of cash flows for the nine-month period
ended on such date, certified by a Responsible Officer, copies of which have
heretofore been furnished to each Lender, are complete and correct and present
fairly the consolidated financial condition of the Borrower and its consolidated
Subsidiaries as at such date, and the consolidated results of their operations
and their consolidated cash flows for the nine-month period then ended (subject
to normal year-end audit adjustments) and (iv) the unaudited balance sheet of
the OEM Division as at December 31, 1997 and the related unaudited consolidated
statement of income and of cash flows for the six-month period ended on such
date, certified by a Responsible Officer, copies of which have heretofore been
furnished to each Lender, are complete and correct and present fairly the
financial condition of the OEM Division as at such date, and the results of its
operations and its cash flows for the six-month period then ended (subject to
normal year-end audit adjustments). All such financial statements, including
the related schedules and notes thereto, have been prepared in accordance with
GAAP applied consistently throughout the periods involved (except as approved by
such accountants or
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37
Responsible Officer, as the case may be, and as disclosed therein). Neither
the Borrower nor any of its consolidated Subsidiaries had, at the date of the
most recent balance sheet referred to above, any material Guarantee
Obligation, contingent liability or liability for taxes, or any long-term
lease or other material agreement or unusual forward or long-term commitment,
including, without limitation, any interest rate or foreign currency swap or
exchange transaction, which is not reflected in the foregoing statements or
in the notes thereto. During the period from December 31, 1996 to and
including the Closing Date there has been no sale, transfer or other
disposition by the Borrower or any of its consolidated Subsidiaries of any
material part of its business or property and, no purchase or other
acquisition of any business or property (including any capital stock of any
other Person) material in relation to the consolidated financial condition of
the Borrower and its consolidated Subsidiaries at December 31, 1996 of which
the Agent and the Lenders have not been made aware in writing by the Borrower.
(b) The PRO FORMA balance sheet of the Borrower and its consolidated
Subsidiaries (the "PRO FORMA BALANCE SHEET"), copies of which have heretofore
been furnished to each Lender, is the balance sheet of the Borrower and its
consolidated Subsidiaries as of December 31, 1997 (the "PRO FORMA DATE"),
adjusted to give effect (as if such events had occurred on such date) to (i) the
repayment in full of all loans under, and all other amounts due in respect of,
the Existing Credit Agreement, (ii) the consummation of the Acquisition and
(iii) the making of the Loans and other extensions of credit hereunder to be
made on the Closing Date and the application of the proceeds thereof as
contemplated hereby.
5.2 NO CHANGE; SOLVENCY. Since December 31, 1996, there has been no
development or event which has had or could reasonably be expected to have a
Material Adverse Effect. As of the Closing Date, the Borrower and its
Subsidiaries are Solvent, on a consolidated basis and on an individual basis.
5.3 CORPORATE EXISTENCE; COMPLIANCE WITH LAW. Each of the Borrower
and its Subsidiaries (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (b) has the
corporate power and authority, and the legal right, to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification and (d) is in compliance with all Requirements of
Law (other than Requirements of Law with respect to which representations as to
compliance are made in subsections 5.13 and 5.16) except to the extent that the
failure to comply therewith could not, in the aggregate, reasonably be expected
to have a Material Adverse Effect.
5.4 CORPORATE POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS. Each
Loan Party has the corporate power and authority, and the legal right, to make,
deliver and perform the Loan Documents to which it is a party and in the case of
the Borrower, to borrow hereunder and the Borrower has taken all necessary
corporate action to authorize the borrowings on the terms and conditions of this
Agreement, the Applications and the Notes, and each Loan Party has authorized
the execution, delivery and performance of the Loan Documents to which it is a
party. No consent or authorization of, filing with, notice to or other act by
or in respect of, any
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38
Governmental Authority or any other Person is required in connection with the
borrowings hereunder or with the execution, delivery, performance, validity
or enforceability of the Loan Documents to which any Loan Party is a party
(other than the filing of UCC financing statements, which have, to the extent
then necessary to perfect the Liens provided for in the Security Agreements,
been duly filed). This Agreement has been duly executed and delivered on
behalf of the Borrower, and each other Loan Document will be duly executed
and delivered on behalf of each Loan Party thereto. This Agreement
constitutes, and each other Loan Document to which the Borrower or any other
Loan Party is a party, when executed and delivered, will constitute, a legal,
valid and binding obligation of the Borrower and such other Loan Party
enforceable against the Borrower and such other Loan Party in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally (including, without limitation,
laws respecting fraudulent transfers and preferential transfers) and by
general equitable principles (whether enforcement is sought by proceedings in
equity or at law).
5.5 NO LEGAL BAR. The execution, delivery and performance of the Loan
Documents to which any Loan Party is a party, the borrowings hereunder and the
use of the proceeds thereof will not violate any Requirement of Law or any
material provision of any material Contractual Obligation or, to the knowledge
of the Borrower, any other provision of any Contractual Obligation of the
Borrower or of any of its Subsidiaries, in each such case the effect of which
would be to cause a Material Adverse Effect and will not result in, or require,
the creation or imposition of any Lien on any of its or their respective
properties or revenues pursuant to any such Requirement of Law or Contractual
Obligation (other than pursuant to the Loan Documents).
5.6 NO MATERIAL LITIGATION. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Borrower, threatened by or against the Borrower or any
of its Subsidiaries or against any of its or their respective properties or
revenues (a) with respect to any of the Loan Documents or any of the
transactions contemplated hereby or thereby or (b) which could reasonably be
expected to have a Material Adverse Effect.
5.7 NO DEFAULT. Neither the Borrower nor any of its Subsidiaries is
in default under or with respect to any of its Contractual Obligations in any
respect which could reasonably be expected to have a Material Adverse Effect.
No Default or Event of Default has occurred and is continuing.
5.8 OWNERSHIP OF PROPERTY; LIENS. Each of the Borrower and its
Subsidiaries has good record and valid title in fee simple to, or a valid
leasehold interest in, all its real property, and good title to, or a valid
leasehold interest in, all its other property, and none of such property is
subject to any Lien except as permitted by subsection 8.3.
5.9 INTELLECTUAL PROPERTY. The Borrower and each of its Subsidiaries
owns, or is licensed to use, all trademarks, tradenames, copyrights, technology,
know-how and processes necessary for the conduct of its business as currently
conducted except for those the failure to own or license which could not
reasonably be expected to have a Material Adverse Effect (the
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39
"INTELLECTUAL PROPERTY"). No claim has been asserted and is pending by any
Person challenging or questioning the use of any such Intellectual Property
or the validity or effectiveness of any such Intellectual Property, nor does
the Borrower know of any valid basis for any such claim that could reasonably
be expected to have a Material Adverse Effect. The Borrower has no
knowledge, nor any reason to know, that the use of such Intellectual Property
by the Borrower and its Subsidiaries infringes on the rights of any Person,
except for such claims and infringements that, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
5.10 TAXES. Each of the Borrower and its Subsidiaries has filed or
caused to be filed all Federal and material other tax returns which, to the
knowledge of the Borrower, are required to be filed and has paid all taxes shown
to be due and payable on said returns or on any assessments made against it or
any of its property and all other taxes, fees or other charges imposed on it or
any of its property by any Governmental Authority (other than any (i) the amount
or validity of which are currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP have been
provided on the books of the Borrower or its Subsidiaries, as the case may be or
(ii) imposed by any Governmental Authority other than the Federal Government the
non-payment of which could not reasonably be expected to give rise to any
Material Adverse Effect); no tax Lien has been filed, and, to the knowledge of
the Borrower, no claim is being asserted, with respect to any such tax, fee or
other charge other than any such Lien or claim by any Governmental Authority
which could not reasonably be expected to have a Material Adverse Effect.
5.11 FEDERAL REGULATIONS. No part of the proceeds of any Loans will
be used for "purchasing" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under Regulation G or Regulation U of the
Board (as such term is defined herein in the definition of "ABR") as now and
from time to time hereafter in effect or for any purpose which violates the
provisions of the Regulations of such Board. If requested by any Lender or the
Agent, the Borrower will furnish to the Agent and each Lender a statement to the
foregoing effect in conformity with the requirements of FR Form G-1 or FR Form
U-1 referred to in said Regulation G or Regulation U, as the case may be.
5.12 ERISA. Neither a Reportable Event nor an "accumulated funding
deficiency" (within the meaning of Section 412 of the Code or Section 302 of
ERISA) has occurred during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Plan, and each Plan
has complied with the applicable provisions of ERISA and the Code where the
failure to so comply could reasonably be expected to have a Material Adverse
Effect. No termination of a Single Employer Plan has occurred so as to subject,
directly or indirectly, any asset of the Borrower or any Commonly Controlled
Entity to any liability, contingent or otherwise, and no Lien in favor of the
PBGC or a Plan has arisen, during such five-year period. The present value of
the accrued benefit obligations under each Single Employer Plan (based on those
assumptions used to fund such Plans) did not, as of the last annual valuation
date prior to the date on which this representation is made or deemed made,
exceed the value of the assets of such Plan allocable to such accrued benefit
obligations. Neither the Borrower nor any Commonly Controlled Entity has had a
complete or partial withdrawal from any Multiemployer Plan, and neither the
Borrower nor any Commonly Controlled Entity
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40
would become subject to any liability under ERISA if the Borrower or any such
Commonly Controlled Entity were to withdraw completely from all Multiemployer
Plans as of the valuation date most closely preceding the date on which this
representation is made or deemed made. No such Multiemployer Plan is in
Reorganization or Insolvent. The present value (determined using actuarial
and other assumptions which are reasonable in respect of the benefits
provided and the employees participating) of the liability of the Borrower
and each Commonly Controlled Entity for post retirement benefits to be
provided to their current and former employees under Plans which are welfare
benefit plans (as defined in Section 3(1) of ERISA) does not, in the
aggregate, exceed the assets under all such Plans allocable to such benefits.
5.13 INVESTMENT COMPANY ACT; OTHER REGULATIONS. The Borrower is not
an "investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. The
Borrower is not subject to regulation under any Federal or State statute or
regulation (other than Regulation X of the Board of Governors of the Federal
Reserve System) which limits its ability to incur Indebtedness.
5.14 SUBSIDIARIES. The Subsidiaries listed on Schedule 5.14 hereto
constitute all the Subsidiaries of the Borrower on the Closing Date.
5.15 PURPOSE OF LOANS. The proceeds of the Revolving Credit Loans
shall be used by the Borrower to (i) refinance indebtedness under the Existing
Credit Agreement and (ii) finance the continuing working capital requirements
and general corporate purposes of the Borrower and its Subsidiaries in the
ordinary course of business, including permitted acquisitions permitted pursuant
to subsection 8.10 hereof. The proceeds of the Term Loans shall be used by the
Borrower to finance the Acquisition, to refinance certain existing indebtedness
in connection therewith and to pay fees and expenses related thereto. None of
the proceeds of the Revolving Credit Loans or the Term Loans shall be used to
finance the acquisition of any company the shares of which are traded on a
public exchange unless, prior to or concurrently with the consummation of such
acquisition, the board of directors, or equivalent governing body, of the
company to be so acquired has approved such acquisition.
5.16 ENVIRONMENTAL MATTERS. Except as disclosed on Schedule 5.16
hereto, (a) the facilities and properties owned, leased or operated by the
Borrower or any of its Subsidiaries (the "PROPERTIES") do not contain, and have
not previously contained, any Materials of Environmental Concern in amounts or
concentrations (i) which constitute or constituted a violation of, or could
reasonably be expected to give rise to liability under, any Environmental Law
and (ii) which could reasonably be expected to have a Material Adverse Effect.
(b) The Properties and all operations at the Properties are in
compliance, and have been in compliance, in all material respects, with all
applicable Environmental Laws, and there is no contamination at, under or about
the Properties or violation of any Environmental Law with respect to the
Properties or the business operated by the Borrower or any of its Subsidiaries
(the "BUSINESS") which could reasonably be expected to have a Material Adverse
Effect.
(c) Neither the Borrower nor any of its Subsidiaries has received any
notice of
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41
violation, alleged violation, non-compliance, liability or potential
liability regarding environmental matters or compliance with Environmental
Laws with regard to any of the Properties or the Business that could
reasonably be expected to have a Material Adverse Effect, nor does the
Borrower have knowledge or reason to believe that any such notice will be
received or is being threatened.
(d) Materials of Environmental Concern have not been transported or
disposed of from the Properties in violation of, or in a manner or to a location
which could reasonably be expected to give rise to liability under, any
Environmental Law and that could reasonably be expected to have a Material
Adverse Effect, nor have any Materials of Environmental Concern been generated,
treated, stored or disposed of at, on or under any of the Properties in
violation of, or in a manner that could reasonably be expected to give rise to
liability under, any applicable Environmental Law and that could reasonably be
expected to have a Material Adverse Effect.
(e) No judicial proceeding or governmental or administrative action is
pending or, to the knowledge of the Borrower, threatened, under any
Environmental Law to which the Borrower or any Subsidiary is or will be named as
a party with respect to the Properties or the Business, nor are there any
consent decrees or other decrees, consent orders, administrative orders or other
orders, or other administrative or judicial requirements outstanding under any
Environmental Law with respect to the Properties or the Business and that could
reasonably be expected to have a Material Adverse Effect.
(f) There has been no release or threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or related to
the operations of the Borrower or any Subsidiary in connection with the
Properties or otherwise in connection with the Business, in violation of or in
amounts or in a manner that could reasonably be expected to give rise to
liability under Environmental Laws and that could reasonably be expected to have
a Material Adverse Effect.
5.17 NO BURDENSOME RESTRICTIONS. No Requirement of Law or Contractual
Obligation of the Borrower or any of its Subsidiaries could reasonably be
expected to have a Material Adverse Effect.
5.18 NO MATERIAL MISSTATEMENTS. The written information, reports,
financial statements, exhibits and schedules furnished by or on behalf of the
Borrower and each other Loan Party to the Agent and the Lenders in connection
with the negotiation of any Loan Document or included therein or delivered
pursuant thereto do not contain, and will not contain as of the Closing Date,
any material misstatement of fact and do not, taken as a whole, omit, and will
not, taken as a whole, omit as of the Closing Date, to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not materially misleading.
5.19 COLLATERAL. The provisions of each of the Security Agreements,
when executed and delivered, will constitute in favor of the Agent for the
ratable benefit of the Lenders, a legal, valid and enforceable security interest
in all right, title, and interest of the Borrower and any of the other Loan
Parties which is a party to such Security Agreement, as the
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42
case may be, in the Collateral described in such Security Agreement. As of
the Closing Date, all Equipment and Inventory (as each of such terms is
defined in the Guarantee and Collateral Agreement) of the Borrower and each
of its Subsidiaries will be kept at, or will be in transit to, the locations
listed on Schedule 5.19, and when financing statements have been filed in the
offices in the jurisdictions listed in Schedule 3 to the Guarantee and
Collateral Agreement, when appropriate filings have been made in the U.S.
Patent and Trademark Office and the U.S. Copyright Office, and when such
other actions as are described in each of the Security Agreements have been
taken in accordance with the Security Agreements, each of the Security
Agreements shall constitute a perfected security interest in all right, title
and interest of the Borrower or such other Loan Parties, as the case may be,
in the Collateral described therein, and except for Liens existing on the
Closing Date which are permitted by subsection 8.3 and whose priority cannot
be superseded by the provisions hereof or of any Security Agreement and the
filings hereunder or thereunder, a perfected first lien on, and security
interest in, all right, title and interest of the Borrower or such other Loan
Parties, as the case may be, in the Collateral described in each Security
Agreement.
5.20 SENIOR DEBT. The unpaid principal of and interest on the Loans
and the Reimbursement Obligations and all other obligations and liabilities of
each of the Borrower and the other Loan Parties pursuant to this Agreement and
the other Loan Documents shall constitute "Senior Debt" of the Borrower under
the Senior Subordinated Notes and the indentures related thereto (the
"INDENTURES") and this Agreement and the other Loan Documents shall collectively
constitute the "Credit Agreement" as such term is defined in such indentures.
SECTION 6. CONDITIONS PRECEDENT
6.1 CONDITIONS TO EXTENSIONS OF CREDIT. This Agreement, including,
without limitation, the agreement of each Lender to make the Extensions of
Credit requested to be made by it hereunder, shall become effective on the date
on which the following conditions precedent shall have been satisfied or waived:
(a) LOAN DOCUMENTS. The Agent shall have received (i) this Agreement,
executed and delivered by a duly authorized officer of the Borrower, with a
counterpart for each Lender, (ii) the Guarantee and Collateral Agreement,
executed and delivered by a duly authorized officer of each party thereto,
with a counterpart or a conformed copy for each Lender and (iii) for the
account of each of the Lenders which has requested a Note, a Revolving
Credit Note, Term Note or a Swing Line Note, as the case may be, each
conforming to the requirements hereof and executed and delivered by a duly
authorized officer of the Borrower.
(b) REPAYMENT OF INDEBTEDNESS. All outstanding indebtedness and other
obligations of the Borrower and its Subsidiaries under the Existing Credit
Agreement shall have been paid in full, including, without limitation, all
interest and fees owing with respect to such indebtedness.
(c) FINANCIAL STATEMENTS. The Agent shall have received, with a copy
for each
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43
Lender, (i) the financial statements referred to in subsection 5.1(a) and
(ii) the PRO FORMA balance sheet of the Borrower and its Subsidiaries
referred to in subsection 5.1(b), which shall be in form and substance
satisfactory to the Lenders.
(d) SOLVENCY CERTIFICATE. The Agent shall have received a certificate
reasonably satisfactory in form and substance to it from the Borrower's
Chief Financial Officer which shall document the solvency of the Borrower
and its Subsidiaries on a combined basis taken as a single entity after
giving effect to the consummation of the transactions (including the
Acquisition) and the financings contemplated hereby.
(e) FEES. The Agent shall have received the fees to be received on
the Closing Date referred to in subsection 4.1.
(f) LEGAL OPINIONS. The Agent shall have received, with a counterpart
for each Lender, the following executed legal opinions:
(i) the executed legal opinion of Gibson, Dunn & Crutcher LLP
counsel to the Borrower and the other Loan Parties, substantially in
the form of Exhibit C-1;
(ii) the executed legal opinion of special local counsel of the
Borrower, in such jurisdictions as the Agent shall request,
substantially in the form of Exhibit C-2; and
(iii) the executed legal opinion of counsel to Autocraft, if any,
delivered in connection with the Acquisition, accompanied by reliance
letters in favor of the Lenders.
(g) ACQUISITION. The Acquisition shall have been consummated for an
aggregate purchase price not exceeding $125,000,000 pursuant to
documentation reasonably satisfactory to the Agent in all material
respects, and no provision thereof shall have been waived, amended,
supplemented or otherwise modified in any material respect.
(h) FEES AND EXPENSES. The Agent shall have received satisfactory
evidence that the fees and expenses incurred, and to be incurred, in
connection with the Acquisition shall not exceed $7,000,000 in the
aggregate.
(i) APPROVALS. All governmental and third party approvals (including
landlords' and other consents) necessary or, in the discretion of the
Agent, advisable in connection with the Acquisition, the financing
contemplated hereby and the continuing operations of the Borrower and its
Subsidiaries shall have been obtained and be in full force and effect, and
all applicable waiting periods shall have expired without any action being
taken or threatened by any competent authority which would restrain,
prevent or otherwise impose adverse conditions on the Acquisition or the
financing thereof.
(j) ENVIRONMENTAL ASSESSMENT. The Agent shall have received a
satisfactory environmental assessment with respect to the real property
owned or leased by Autocraft
<PAGE>
44
and its Subsidiaries from a firm satisfactory to the Agent.
(k) ACTIONS TO PERFECT LIENS. The Agent shall have received evidence
in form and substance satisfactory to it that all filings, recordings,
registrations and other actions, including, without limitation, the
delivery of original stock certificates together with undated stock powers
executed in blank and the filing of duly executed financing statements on
form UCC-1, necessary or, in the opinion of the Agent, desirable to perfect
the Liens created by the Security Agreements delivered on the Closing Date
shall have been completed.
(l) LIEN SEARCHES. The Agent shall have received the results of a
recent search in each relevant jurisdiction, with respect to the Borrower,
Autocraft and their respective Subsidiaries, of the Uniform Commercial Code
filings which may have been filed with respect to the Borrower, Autocraft
or their respective Subsidiaries, and such search shall reveal no liens on
any of the assets of the Borrower, Autocraft or their respective
Subsidiaries except for liens permitted by subsection 8.3 or liens to be
discharged on or prior to the Closing Date pursuant to documentation
satisfactory to the Agent.
(m) BORROWING CERTIFICATE. The Agent shall have received, with a
counterpart for each Lender, a Borrowing Certificate dated the Closing
Date, with appropriate insertions and attachments satisfactory in form and
substance to the Agent, executed by a Responsible Officer of the Borrower.
(n) CORPORATE PROCEEDINGS OF THE LOAN PARTIES. The Agent shall have
received, with a counterpart for each Lender, a copy of the resolutions, in
form and substance satisfactory to the Agent, of the Board of Directors of
each Loan Party authorizing (i) the execution, delivery and performance of
this Agreement, the Notes and the other Loan Documents delivered on the
Closing Date to which it is or will be a party, (ii) the borrowings
contemplated hereunder and (iii) the granting by it of the Liens created
pursuant to the Security Agreements delivered on the Closing Date to which
it is or will be a party, certified by the Secretary or an Assistant
Secretary of such Loan Party as of the Closing Date, which certificate
shall be in form and substance satisfactory to the Agent and shall state
that the resolutions thereby certified have not been amended, modified,
revoked or rescinded.
(o) LOAN PARTY INCUMBENCY CERTIFICATES. The Agent shall have
received, with a counterpart for each Lender, a Certificate of each Loan
Party, dated the Closing Date, as to the incumbency and signature of the
officers of such Loan Party executing any Loan Document delivered on the
Closing Date satisfactory in form and substance to the Agent, executed by
the President or any Vice President and the Secretary or any Assistant
Secretary of such Loan Party.
(p) CORPORATE DOCUMENTS. The Agent shall have received, with a
counterpart for each Lender, true and complete copies of the certificate of
incorporation and by-laws of each Loan Party to any Loan Document delivered
on the Closing Date, certified as of the Closing Date as complete and
correct copies thereof by the Secretary or an Assistant
<PAGE>
45
Secretary of the such Loan Party.
(q) INSURANCE. The Agent shall have received evidence in form and
substance satisfactory to it that all of the requirements of subsection 7.5
hereof shall have been satisfied.
(r) ADDITIONAL MATTERS. All corporate and other proceedings, and all
documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement and the other Loan Documents
shall be reasonably satisfactory in form and substance to the Agent, and
the Agent shall have received such other documents and legal opinions in
respect of any aspect or consequence of the transactions contemplated
hereby or thereby as it shall reasonably request.
6.2 CONDITIONS TO EACH EXTENSION OF CREDIT. The agreement of each
Lender to make any Extension of Credit requested to be made by it on any date
(including, without limitation, the initial Extension of Credit) is subject to
the satisfaction or waiver of the following conditions precedent:
(a) REPRESENTATIONS AND WARRANTIES. Each of the representations and
warranties made by the Borrower and each of its Subsidiaries in or pursuant
to the Loan Documents shall be true and correct in all material respects on
and as of such date as if made on and as of such date (except to the extent
that such representations and warranties were expressly made only as of a
specific date).
(b) NO DEFAULT. No Default or Event of Default shall have occurred
and be continuing on such date or after giving effect to the extensions of
credit requested to be made on such date.
(c) LETTER OF CREDIT APPLICATIONS. With respect to the issuance of
any Letter of Credit, the Issuing Lender shall have received an
Application, completed to its reasonable satisfaction and duly executed by
a Responsible Officer.
(d) BORROWING CERTIFICATE. The Agent shall have received, with a
counterpart for each Lender, a borrowing certificate dated the requested
Borrowing Date, with appropriate insertions and attachments satisfactory in
form and substance to the Agent, executed by a Responsible Officer.
(e) DEBT INCURRENCE COMPLIANCE CERTIFICATE. If, on any requested
Borrowing Date, the sum of (i) the aggregate unpaid principal amount of the
Term Loans and (ii) the aggregate Revolving Credit Exposures of all
Lenders, after giving effect to the Extensions of Credit requested to be
made on such Borrowing Date, exceeds 90% of the Borrowing Base (as such
term is defined in the Indentures) as determined in the most recent
calculation thereof delivered pursuant to subsection 7.2(f), the Agent
shall have received a calculation of the Borrowing Base as at such
requested Borrowing Date, together with a certificate of a Responsible
Officer of the Borrower, dated the requested Borrowing Date, demonstrating
that the aggregate Extensions of Credit after giving effect
<PAGE>
46
to the Revolving Credit Loans requested to be made on such Borrowing
Date will not exceed the Borrowing Base calculated as at such date,
PROVIDED that if the foregoing would not be sufficient to demonstrate
that such Extensions of Credit can be made in compliance with the
applicable terms of the Indentures, such Borrowing Base calculation and
certificate shall not be so required, so long as either (x) the total
amount of such requested Extensions of Credit, when added to the total
amount of any other Extensions of Credit and the total amount of
Indebtedness and Disqualified Capital Stock (each as defined in the
Indenture) incurred after the date of the latest calculation of the
Total Incurrence Amount (as defined in subsection 7.2(f)), does not
exceed 90% of such Total Incurrence Amount or (y) the Agent shall have
received a certificate of a Responsible Officer of the Borrower, dated
the requested Borrowing Date, demonstrating that the applicable
Consolidated Coverage Ratio (as such term is defined in the Indentures)
of the Borrower after giving effect to such Extensions of Credit as set
forth in the Indentures satisfies the relevant terms thereof.
Each borrowing by and each issuance of a Letter of Credit on behalf of the
Borrower hereunder shall constitute a representation and warranty by the
Borrower as of the date of such Loan or issuance that the conditions contained
in this subsection 6.2 have been satisfied.
SECTION 7. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain in
effect, any Loan or Letter of Credit remains outstanding and unpaid or any other
amount is owing to any Lender or the Agent hereunder, it shall and (except in
the case of delivery of financial information, reports and notices) shall cause
each of its Subsidiaries to:
7.1 FINANCIAL STATEMENTS. Furnish to each Lender:
(a) as soon as available, but in any event within 90 days after the
end of each fiscal year of the Borrower, a copy of the consolidated balance
sheet of the Borrower and its consolidated Subsidiaries as at the end of
such year and the related consolidated and consolidating statements of
income and retained earnings and of cash flows for such year, setting forth
in each case in comparative form the figures for the previous year,
reported on without a "going concern" or like qualification or exception,
or qualification arising out of the scope of the audit, by Ernst & Young or
other independent certified public accountants of nationally recognized
standing not unacceptable to the Required Lenders; and
(b) as soon as available, but in any event not later than 45 days
after the end of each of the first three quarterly periods of each fiscal
year of the Borrower, the unaudited consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at the end of such quarter
and the related unaudited consolidated statements of income and retained
earnings and of cash flows of the Borrower and its consolidated
Subsidiaries for such quarter and the portion of the fiscal year through
the end of such quarter, setting forth in each case in comparative form the
figures for the previous year, certified by a
<PAGE>
47
Responsible Officer as being fairly stated in all material respects
(subject to normal year-end audit adjustments)
All such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein and except that the financial statements delivered
pursuant to subsection 7.1(b) may not include notes thereto).
7.2 CERTIFICATES; OTHER INFORMATION. Furnish to each Lender:
(a) concurrently with the delivery of the financial statements
referred to in subsection 7.1(a), a certificate of the independent
certified public accountants reporting on such financial statements stating
that in making the examination necessary therefor no knowledge was obtained
of any Event of Default, except as specified in such certificate;
(b) concurrently with the delivery of the financial statement referred
to in subsections 7.1(a) and (b), a certificate of a Responsible Officer
("COMPLIANCE CERTIFICATE") stating that, to the best of such officer's
knowledge, during such period (i) no Subsidiary has been formed or acquired
(or, if any such Subsidiary has been formed or acquired, the Borrower has
complied with the requirements of subsection 7.9 with respect thereto),
(ii) neither the Borrower nor any of its Subsidiaries has changed its name,
its principal place of business, its chief executive office or the location
of any material item of tangible Collateral without either giving prompt
written notice of such event to the Agent or complying with the
requirements of this Agreement and the Security Agreements with respect
thereto, (iii) the Borrower has observed or performed all of its covenants
and other agreements, and satisfied every condition, contained in this
Agreement and the other Loan Documents to be observed, performed or
satisfied by it other than with respect to those matters which have been
cured within the grace periods specified herein or expressly waived by the
Lenders or the Required Lenders, as appropriate, and (iv) the Borrower has
set forth in reasonable detail any and all calculations necessary to show
compliance with all of the financial condition covenants set forth in
subsections 8.1, 8.7, 8.8 and 8.9, including, without limitation,
calculations and reconciliations, if any, necessary to show compliance with
such financial condition covenants on the basis of generally accepted
accounting principles in the United States of America consistent with those
utilized in preparing the audited financial statements referred to in
subsection 5.1, and that such Officer has obtained no knowledge of any
Default or Event of Default except as specified in such certificate;
(c) not later than 60 days after the end of each fiscal year of the
Borrower, a copy of the projections of the operating budget and cash flow
budget of the Borrower and its Subsidiaries for the succeeding fiscal year,
such projections to be accompanied by a certificate of a Responsible
Officer to the effect that such projections have been prepared on the basis
of sound financial planning practice and that such Officer has no reason to
believe they are incorrect or misleading in any material respect;
<PAGE>
48
(d) as soon as practicable after the same are sent, copies of all
financial statements and reports which the Borrower or any of its
Subsidiaries sends to its stockholders in their capacities as such, and as
soon as practicable after the same are filed, copies of all financial
statements and reports which the Borrower or any of its Subsidiaries may
make to, or file with, the Securities and Exchange Commission or any
successor or analogous Governmental Authority;
(e) promptly upon receipt thereof, copies of all final reports
submitted to the Borrower or any of its Subsidiaries by independent
certified public accountants in connection with each annual, interim or
special financial audit of the books of the Borrower or any of its
Subsidiaries made by such accountants, including, without limitation, any
final comment letter submitted by such accountants to management in
connection with their annual audit PROVIDED, in each case, that such final
report or letter, as the case may be, concerns an event or events which
could reasonably be expected to have a Material Adverse Effect;
(f)concurrently with the delivery of the financial statements referred
to in subsections 7.1(a) and (b), a certificate of a Responsible Officer
demonstrating, in reasonable detail, (i) the Borrowing Base (as such term
is defined in the Indentures) as of such date and (ii) the Consolidated
Coverage Ratio (as such term is defined in the Indentures), along with a
calculation of the maximum amount (the "TOTAL INCURRENCE AMOUNT") of
Indebtedness that could be incurred on such date under Section 4.11(a) of
the Indentures as a result thereof based upon such Consolidated Coverage
Ratio and assuming (for purposes of giving effect on a pro forma basis),
that none of the proceeds of such Total Incurrence Amount are used to
refinance or retire other Indebtedness or to make an Acquisition (as
defined in the Indentures); and
(g) promptly, such additional financial and other information as any
Lender may from time to time reasonably request.
7.3 PAYMENT OF OBLIGATIONS. Pay, discharge or otherwise satisfy at or
before maturity or before they become delinquent in accordance with current
business practice, as the case may be, all its material obligations of whatever
nature, except where the amount or validity thereof is currently being contested
in good faith by appropriate proceedings and reserves in conformity with GAAP
with respect thereto have been provided on the books of the Borrower or any of
its Subsidiaries, as the case may be.
7.4 CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE. Continue to
engage in business of the same general type as now conducted by it and preserve,
renew and keep in full force and effect its corporate existence and take all
reasonable action to maintain all rights, privileges and franchises necessary or
desirable in the normal conduct of its business except as otherwise permitted
pursuant to subsection 8.5; and comply with all Contractual Obligations and
Requirements of Law except to the extent that failure to comply therewith could
not, in the aggregate, reasonably be expected to have a Material Adverse Effect.
7.5 MAINTENANCE OF PROPERTY; INSURANCE. Keep (except as permitted by
subsection
<PAGE>
49
8.6) all property that is useful and necessary in the then current conduct of
its business in good working order and condition (ordinary wear and tear
excepted); maintain with financially sound and reputable insurance companies
insurance on all its property in at least such amounts and against at least
such risks (but including in any event public liability, product liability
and business interruption) as are usually insured against in the same general
area by companies engaged in the same or a similar business; and furnish to
the Agent, upon written request, full information as to the insurance carried.
7.6 INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS. Keep
proper books of records and account in which proper entries in conformity with
GAAP and all Requirements of Law shall be made of all dealings and transactions
in relation to its business and activities; and permit representatives of the
Agent and any Lender to visit and inspect any of its properties and examine and
make abstracts from any of its books and records at any reasonable time and as
often as may reasonably be desired following reasonable notice (including topics
for discussion), and to discuss the business, operations, properties and
financial and other condition of the Borrower and the its Subsidiaries with
officers of the Borrower and its Subsidiaries and with its independent certified
public accountants.
7.7 NOTICES. Promptly give notice to the Agent and each Lender of:
(a) any Responsible Officer becoming aware of the occurrence of any
Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries or (ii) litigation,
investigation or proceeding which may exist at any time between the
Borrower or any of its Subsidiaries and any Governmental Authority, which
in either case, if not cured or if adversely determined, as the case may
be, could reasonably be expected to have a Material Adverse Effect;
(c) any litigation or proceeding affecting the Borrower or any of its
Subsidiaries in which the amount involved is $1,000,000 or more and not
covered by insurance or in which injunctive or similar relief is sought if
the granting of such injunctive or other relief could reasonably be
expected to have a Material Adverse Effect;
(d) the following events, as soon as possible and in any event within
30 days after the Borrower knows or has reason to know thereof: (i) the
occurrence (or the reasonable expectation of the occurrence) of any
Reportable Event with respect to any Plan, a failure to make any required
contribution to a Plan, the creation of any Lien in favor of the PBGC or a
Plan or any withdrawal from, or the termination, Reorganization or
Insolvency of, any Multiemployer Plan or (ii) the institution of
proceedings or the taking of any other action by the PBGC or any
Multiemployer Plan to effect a termination or Reorganization of any
Multiemployer Plan or any Single Employer Plan or (iii) the termination or
partial termination of any Single Employer Plan by the Borrower or any
Commonly Controlled Entity;
(e) (i) any release or discharge by the Borrower or any of its
Subsidiaries of any
<PAGE>
50
Material of Environmental Concern required to be reported under
Environmental Laws to any Governmental Authority; (ii) any condition,
circumstance, occurrence or event that could result in a material
liability under Environmental Laws or could result in the imposition of
any Lien or other restriction on the title, ownership or transferability
of any material Property; and (iii) any proposed action to be taken by
the Borrower or any of its Subsidiaries that could reasonably be
expected to subject the Borrower or any of its Subsidiaries to any
material additional or different requirements or liabilities under
Environmental Law;
(f) any development or event which could reasonably be expected to
have a Material Adverse Effect; and
(g) promptly upon the occurrence thereof, the occurrence of a Change
of Control or a "Change of Control" (as defined in the Senior Subordinated
Note Indenture).
Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Borrower or such Subsidiary proposes to take with
respect thereto.
7.8 ENVIRONMENTAL LAWS. (a) Comply in all material respects with, and
make reasonable efforts to ensure compliance in all material respects by all
tenants and subtenants, if any, with, all applicable Environmental Laws and
obtain and comply with and maintain, and ensure that all tenants and subtenants
obtain and comply in all material respects with, and maintain, any and all
licenses, approvals, notifications, registrations or permits required by
applicable Environmental Laws.
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required by Governmental
Authorities under Environmental Laws and promptly comply with all lawful orders
and directives of all Governmental Authorities regarding Environmental Laws
other than such orders and directives as to which an appeal or other challenge
has been timely and properly taken in good faith and the pendency of any and all
such appeals and other challenges does not give rise to a Material Adverse
Effect.
7.9 ADDITIONAL COLLATERAL. (a) With respect to any assets (or any
interest therein) acquired after the Closing Date by the Borrower or any of its
Subsidiaries that are intended to be subject to the Lien created by any of the
Security Agreements but which are not so subject promptly (and in any event
within 60 days after the acquisition thereof): (i) execute and deliver to the
Agent such amendments to the relevant Security Agreements or such other
documents as the Agent shall deem necessary or advisable to grant to the Agent,
for the benefit of the Lenders, a Lien on such assets (or such interest
therein), (ii) take all actions necessary or advisable to cause such Lien to be
duly perfected in accordance with all applicable Requirements of Law, including,
without limitation, the filing of financing statements and the recording of
leasehold mortgages in such jurisdictions as may be requested by the Agent,
(iii) if requested by the Agent, deliver to the Agent legal opinions relating to
the matters described in clauses (i) and (ii) immediately preceding, which
opinions shall be in form and substance, and from counsel, reasonably
satisfactory to the Agent, and (iv) if requested by the Agent, deliver to the
Agent
<PAGE>
51
surveys, title insurance and flood insurance reasonably satisfactory to the
Agent.
(b) With respect to any Person that, subsequent to the Closing Date,
becomes a domestic Subsidiary, promptly upon the request of the Agent: (i)
execute and deliver to the Agent, for the benefit of the Lenders, a new pledge
agreement, or such amendments to the Guarantee and Collateral Agreement as the
Agent shall deem necessary or advisable to grant to the Agent, for the benefit
of the Lenders, a Lien on the Capital Stock of such Subsidiary which is owned by
the Borrower or any of its Subsidiaries, (ii) deliver to the Agent the
certificates representing such Capital Stock, together with undated stock powers
executed and delivered in blank by a duly authorized officer of the Borrower or
such Subsidiary, as the case may be, (iii) cause such new Subsidiary (A) to
become a party to the Guarantee and Collateral Agreement or to a new security
agreement in each case pursuant to an annex to the Guarantee and Collateral
Agreement which is in form and substance satisfactory to the Agent, and (B) to
take all actions necessary or advisable to cause the Lien created by the
Guarantee and Collateral Agreement or such security agreement, to be duly
perfected in accordance with all applicable Requirements of Law, including,
without limitation, the filing of financing statements in such jurisdictions as
may be requested by the Agent and (iv) if requested by the Agent, deliver to the
Agent legal opinions relating to the matters described in clauses (i), (ii) and
(iii) immediately preceding, which opinions shall be in form and substance, and
from counsel, reasonably satisfactory to the Agent.
(c) With respect to any Person that subsequent to the Closing Date
becomes a foreign Subsidiary (other than a foreign Subsidiary owned by another
foreign Subsidiary), promptly upon the request of the Agent: (i) execute and
deliver to the Agent a foreign stock pledge agreement relating to the pledge of
the shares of such foreign Subsidiary executed and delivered by a duly
authorized officer of the Borrower or its domestic Subsidiary, as the case may
be, with a counterpart or a conformed copy for each Lender, (ii) deliver to the
Agent the certificate[s] representing 65% of
<PAGE>
52
the Capital Stock of such foreign Subsidiary, together with, if required by
such foreign stock pledge agreement, undated stock powers for each such
certificate executed in blank by a duly authorized officer of the pledgor
thereof, (iii) complete such other actions as are necessary or, in the
opinion of the Agent, desirable to perfect the Liens created by such foreign
stock pledge agreement and (iv) cause the delivery of the executed legal
opinion of special foreign counsel with respect to such foreign stock pledge
agreement, in form and substance reasonably satisfactory to the Agent.
7.10 FURTHER ASSURANCES. Upon the request of the Agent, promptly
perform or cause to be performed any and all acts and execute or cause to be
executed any and all documents (including, without limitation, financing
statements and continuation statements) for filing under the provisions of the
Uniform Commercial Code or any other Requirement of Law which are necessary or
advisable to maintain in favor of the Agent, for the benefit of the Lenders,
Liens on the Collateral that are duly perfected in accordance with all
applicable Requirements of Law.
7.11 PROPERTY MATTERS. With respect to any real property owned or
leased by the Borrower or its Subsidiaries and not subject to a fee or leasehold
mortgage constituting a Security Document, as applicable, to the extent
reasonably requested by the Agent, no later than 60 days following the Closing
Date, at its own expense (a) deliver to the Agent, for the benefit of the
Lenders, a mortgage on such real property as to which a landlord consent to such
mortgage is not required, (b) with respect to such real property as to which a
landlord consent to such mortgage is required, request and use reasonable best
efforts to obtain a landlord waiver and
<PAGE>
53
consent with respect thereto and leasehold mortgage, each in form and
substance reasonably satisfactory to the Agent, from each of the landlords of
such facilities as the Agent may reasonably designate, (c) with respect to
each leased property to be subject to a leasehold mortgage, use reasonable
best efforts to obtain a landlord waiver and consent in form and substance
reasonably satisfactory to the Agent and (d) take all actions necessary or,
in the opinion of the Agent, desirable to cause any liens created by any such
mortgage to be duly perfected in accordance with all applicable Requirements
of Law, including, without limitation, the recording of such leasehold
mortgages in such jurisdictions as may be requested by the Agent.
SECTION 8. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Revolving Credit
Commitments remain in effect, any Loan or Letter of Credit remains outstanding
and unpaid or any other amount is owing to any Lender or the Agent hereunder, it
shall not, and (except with respect to subsection 8.1) shall not permit any of
its Subsidiaries to, directly or indirectly:
8.1 FINANCIAL CONDITION COVENANTS. (a) TOTAL INDEBTEDNESS TO EBITDA.
Permit the Leverage Ratio on the last day of any fiscal quarter of the Borrower
to be greater than the ratio set forth below opposite the last day of such
fiscal quarter:
<TABLE>
<CAPTION>
Date Ratio
---- -----
<S> <C>
March 31, 1998 4.00 to 1.0
June 30, 1998 4.00 to 1.0
September 30, 1998 4.00 to 1.0
December 31, 1998 4.00 to 1.0
March 31, 1999 3.50 to 1.0
June 30, 1999 3.50 to 1.0
September 30, 1999 3.50 to 1.0
December 31, 1999 3.50 to 1.0
March 31, 2000 3.25 to 1.0
June 30, 2000 3.25 to 1.0
September 30, 2000 3.25 to 1.0
December 31, 2000 3.25 to 1.0
March 31, 2001 3.00 to 1.0
June 30, 2001 3.00 to 1.0
September 30, 2001 3.00 to 1.0
December 31, 2001 3.00 to 1.0
March 31, 2002 3.00 to 1.0
June 30, 2002 3.00 to 1.0
September 30, 2002 3.00 to 1.0
December 31, 2002 3.00 to 1.0
March 31, 2003 3.00 to 1.0
June 30, 2003 3.00 to 1.0
<PAGE>
54
September 30, 2003 3.00 to 1.0
December 31, 2003 3.00 to 1.0
</TABLE>
(b) INTEREST COVERAGE. Permit for any period of four consecutive
fiscal quarters ending on any date set forth below the ratio of (A) the
difference of Consolidated EBITDA of the Borrower for such period minus
Consolidated Capital Expenditures of the Borrower for such period to (B)
Consolidated Interest Expense of the Borrower for such period to be less
than the ratio set forth below opposite the date on which the last of such
fiscal quarters ends:
<TABLE>
<CAPTION>
Date Ratio
---- -----
<S> <C>
March 31, 1998 2.00 to 1.0
June 30, 1998 2.00 to 1.0
September 30, 1998 2.00 to 1.0
December 31, 1998 2.00 to 1.0
March 31, 1999 2.25 to 1.0
June 30, 1999 2.25 to 1.0
September 30, 1999 2.25 to 1.0
December 31, 1999 2.25 to 1.0
March 31, 2000 2.50 to 1.0
June 30, 2000 2.50 to 1.0
September 30, 2000 2.50 to 1.0
December 31, 2000 2.50 to 1.0
March 31, 2001 3.00 to 1.0
June 30, 2001 3.00 to 1.0
September 30, 2001 3.00 to 1.0
December 31, 2001 3.00 to 1.0
March 31, 2002 3.00 to 1.0
June 30, 2002 3.00 to 1.0
September 30, 2002 3.00 to 1.0
December 31, 2002 3.00 to 1.0
March 31, 2003 3.00 to 1.0
June 30, 2003 3.00 to 1.0
September 30, 2003 3.00 to 1.0
December 31, 2003 3.00 to 1.0
</TABLE>
(c) MAINTENANCE OF NET WORTH. Permit the Consolidated Net Worth of
the Borrower at any time to be less than the sum of $140,000,000 plus 50%
of the cumulative sum of Consolidated Net Income for each fiscal quarter
(if positive) beginning after the Closing Date and ended at or prior to
such time.
8.2 LIMITATION ON INDEBTEDNESS. Create, incur, assume or suffer to
exist any Indebtedness, except:
(a) Indebtedness of the Borrower under this Agreement;
<PAGE>
55
(b) Indebtedness of (i) the Borrower to any Subsidiary and (ii) any
Subsidiary which is a party to the Guarantee and Collateral Agreement to
the Borrower; PROVIDED that the Borrower hereby agrees that all such
Indebtedness of any such Subsidiary to the Borrower permitted pursuant to
clause (ii) above is subordinated to the payment in full of the obligations
of such Subsidiary under the Guarantee and Collateral Agreement or another
subsidiary guarantee to which it is a party, and any payment received by
the Borrower in respect thereof while an Event of Default shall have
occurred and be continuing shall be held by the Borrower in trust for the
Agent and paid over to the Agent, for the benefit of the Lenders, in the
event of any demand in respect of the Guarantee and Collateral Agreement or
such subsidiary guarantee;
(c) Indebtedness of the Borrower and any of its Subsidiaries incurred
not later than 180 days after the acquisition of fixed or capital assets to
finance the acquisition of such fixed or capital assets (whether pursuant
to a loan, a Financing Lease or otherwise), in an initial amount not less
than 75%, and not more than 100%, of the original purchase price of such
property at the time it was acquired, and any renewals, extensions,
refundings or refinancings of such indebtedness; PROVIDED that the terms of
such Indebtedness shall not prohibit or limit the ability of any Subsidiary
to declare or pay any dividend or make any payment or other distribution
(other than a distribution of the assets financed by such Indebtedness),
either directly or indirectly, to or for the account of the Borrower or any
Subsidiary of the Borrower;
(d) Indebtedness outstanding on the date hereof and listed on Schedule
8.2, not to exceed an aggregate outstanding principal amount of $250,000 on
the Closing Date, and any renewals, extensions, refundings or refinancings
of such Indebtedness, provided the amount thereof is not increased, the
maturity of any installment of principal thereof is not shortened and the
subordination provisions thereof are not amended or modified except on
terms and conditions satisfactory to the Required Lenders;
(e) (i) Indebtedness under the 1994 Senior Subordinated Notes
(including any 1994 Senior Subordinated Notes exchanged for other 1994
Senior Subordinated Notes) and (ii) Indebtedness under the 1995 Senior
Subordinated Notes (including any 1995 Senior Subordinated Notes exchanged
for other 1995 Senior Subordinated Notes);
(f) Indebtedness of the Canadian Subsidiaries and U.K. Subsidiaries at
any time not exceeding an aggregate principal amount outstanding equivalent
at such time to $10,000,000 (U.S. Dollars equivalent);
(g) Indebtedness constituting the defined purchase price "earn-out"
liabilities under (i) the Asset Purchase Agreement, dated as of July 31,
1997, among Automatic Transmission Shops Inc., C.W. Smith, ATS
Remanufacturing, Inc., and the Borrower in an aggregate amount not to
exceed $13,600,000 and (ii) the Acquisition in an aggregate amount not to
exceed $12,500,000;
(h) Indebtedness in respect of (i) Hedging Agreements not involving
more than
<PAGE>
56
$50,000,000 in aggregate notional amount at any one time outstanding or
(ii) rate caps, collars or similar agreements in respect of interest or
currency rate fluctuations that require payment by the Borrower only of
fixed fees determined at or prior to the effectiveness thereof and not
termination payments or other payments or liabilities that change in
amount based on changes in underlying rates; provided that in each case
such Hedging Agreements are entered into for legitimate hedging purposes
related to the business of the Borrower and its Subsidiaries and not for
speculative purposes; and
(i) additional Indebtedness of the Borrower in aggregate principal
amount outstanding at any time not exceeding $10,000,000.
8.3 LIMITATION ON LIENS. Create, incur, assume or suffer to exist any
Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, except for:
(a) Liens for taxes, assessments or other governmental charges not yet
overdue or which are being contested in good faith by appropriate
proceedings, PROVIDED that adequate reserves with respect thereto are
maintained on the books of the Borrower or its Subsidiaries, as the case
may be, in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
or other like Liens arising in the ordinary course of business which are
not overdue for a period of more than 60 days or which are being contested
in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation and deposits
securing liability to insurance carriers under insurance or self-insurance
arrangements;
(d) deposits to secure the performance of bids, tenders, trade or
government contracts (other than for borrowed money), leases, licenses,
statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business;
(e) easements, rights-of-way, building, zoning and other similar
restrictions, utility agreements, covenants, reservations and encroachments
and other similar encumbrances or title defects incurred, or leases or
subleases granted to others in the ordinary course of business which, in
the aggregate, do not materially detract from the aggregate value of the
properties of the Borrower and its Subsidiaries, taken as a whole, or in
the aggregate materially interfere with the ordinary conduct of the
business of the Borrower and its Subsidiaries, taken as a whole;
(f) Liens in existence on the date hereof listed on Schedule 8.3,
securing Indebtedness permitted by subsection 8.2(d), PROVIDED that no such
Lien is spread to cover any additional property after the Closing Date and
that the amount of Indebtedness secured thereby is not increased;
(g) Liens securing Indebtedness of the Borrower and its Subsidiaries
permitted by
<PAGE>
57
subsection 8.2(c) incurred to finance the acquisition of fixed or
capital assets, PROVIDED that (i) such Liens shall be created not later
than 180 days after the acquisition of such fixed or capital assets,
(ii) such Liens do not at any time encumber any property other than the
property financed by such Indebtedness, (iii) the principal amount of
Indebtedness secured thereby is not increased and (iv) the principal
amount of Indebtedness secured by any such Lien shall at no time exceed
100% of the original purchase price of such property at the time it was
acquired;
(h) Liens on property other than the Collateral (not otherwise
permitted hereunder) which secure obligations not exceeding (as to the
Borrower and all Subsidiaries) $5,000,000 in an aggregate amount at any
time outstanding;
(i) Liens created pursuant to the Loan Documents;
(j) Liens on assets of corporations which become Subsidiaries of the
Company after the date hereof existing on the date of such acquisition,
PROVIDED that (i) such Liens do not at any time encumber any property other
than the property financed by such Indebtedness, (ii) the principal amount
of Indebtedness secured thereby is not increased and (iv) such Lien or
indebtedness is not created or incurred in connection with or contemplation
of such acquisition; and
(k) Liens on assets of the Canadian Subsidiaries and the U.K.
Subsidiaries of the Borrower securing Indebtedness permitted by subsection
8.2(f).
(l) Liens in respect of security interests in inventory and any
proceeds thereof, granted in the ordinary course of business for the
benefit of any supplier of such inventory bearing the trade or service mark
of such supplier, provided such liens do not extend to assets other than
parts supplied from time to time by such supplier in the ordinary course of
business.
8.4 LIMITATION ON GUARANTEE OBLIGATIONS. Create, incur, assume or
suffer to exist any Guarantee Obligation except:
(a) Guarantee Obligations in existence on the date hereof not to
exceed $100,000 in the aggregate;
(b) Guarantee Obligations in respect of the Senior Subordinated Notes;
PROVIDED that such Guarantee Obligations are subordinated and junior in all
respects to the obligations of the Loan Parties under the Loan Documents;
(c) Guarantee Obligations incurred after the date hereof in an
aggregate amount not to exceed $5,000,000 at any one time outstanding;
(d) the Guarantee and Collateral Agreement and any other subsidiary
guarantee entered into from time to time pursuant to the terms of this
Agreement;
<PAGE>
58
(e) Guarantee Obligations in respect of Letters of Credit;
(f) Guarantee Obligations in respect of letters of credit issued for
the account of the Borrower or any of its Subsidiaries in the ordinary
course of business in an aggregate face amount not to exceed $2,000,000 at
any time.
(g) guarantees made by the Borrower or any Subsidiary of Indebtedness
of any Subsidiary which is a Guarantor or of the Borrower, which
Indebtedness is otherwise permitted under this Agreement; and
(h) guarantees made in the ordinary course of its business by the
Borrower or any Subsidiary of obligations of any Subsidiary which is a
Guarantor or of the Borrower, which obligations are otherwise permitted
under this Agreement.
8.5 LIMITATION ON FUNDAMENTAL CHANGES. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign,
transfer or otherwise dispose of, all or substantially all of its property,
business or assets, or make any material change in its lines of business,
except that (i) any Subsidiary of the Borrower may be merged or consolidated
with or into, or may sell, lease, transfer or otherwise dispose of any of its
assets to, the Borrower (PROVIDED that the Borrower shall be the continuing,
surviving, or acquiring corporation) or with, into or to any one or more
wholly-owned Subsidiaries of the Borrower which is a Guarantor (PROVIDED that
the wholly-owned Subsidiary or Subsidiaries, which is a Guarantor, shall be
the continuing, surviving or acquiring corporation) and (ii) any Subsidiary
of the Borrower formed solely for the purpose of effecting an acquisition of
assets permitted hereunder may be merged or consolidated with any other
Person (PROVIDED that the continuing or surviving corporation of such merger
or consolidation shall be a Subsidiary of the Borrower).
8.6 LIMITATION ON SALE OF ASSETS. Convey, sell, lease, assign,
transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, receivables and leasehold interests), whether
now owned or hereafter acquired, or, in the case of any Subsidiary, issue or
sell any shares of such Subsidiary's Capital Stock to any Person other than the
Borrower or any wholly owned Subsidiary, except:
(a) the sale or other disposition of obsolete or worn out property in
the ordinary course of business;
(b) the sale or other disposition of any property (other than
inventory or obsolete or worn out property in the ordinary course of
business) in the ordinary course of business PROVIDED that the aggregate
consideration received in any fiscal year shall not exceed 20% of the
Consolidated EBITDA of the Borrower for such fiscal year;
(c) the sale or return of inventory in the ordinary course of
business;
(d) the sublease of real or personal property on commercially
reasonable terms to the extent that the Borrower determines that such
property is no longer necessary in the
<PAGE>
59
conduct of the business of the Borrower and its Subsidiaries; and
(e) as permitted by subsection 8.5(i).
8.7 LIMITATION ON LEASES. Permit Consolidated Lease Expense for any
fiscal year of the Borrower to exceed an amount equal to $11,000,000 for the
fiscal year ending December 31, 1998, $14,000,000 for the fiscal year ending
December 31, 1999 and $10,000,000 for each fiscal year thereafter.
8.8 LIMITATION ON DIVIDENDS. (a) Declare or pay any dividend (other
than dividends payable solely in common stock of the Borrower) on, or make any
payment on account of, or set apart assets for a sinking or other analogous fund
for, the purchase, redemption, defeasance, retirement or other acquisition of,
any shares of any class of Capital Stock of the Borrower or any warrants or
options to purchase any such Capital Stock, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either directly
or indirectly, whether in cash or property or in obligations of the Borrower or
any Subsidiary (such declarations, payments, setting apart, purchases,
redemptions, defeasance, retirements, acquisitions and distributions being
herein called "RESTRICTED PAYMENTS"); PROVIDED THAT so long as no Default or
Event of Default has occurred and is continuing, the Borrower and its
Subsidiaries may (i) make Restricted Payments in any fiscal year not to exceed
$1,000,000 in the aggregate, (ii) make Restricted Payments not to exceed
$3,000,000 in the aggregate in any fiscal year or $6,000,000 in the aggregate on
a cumulative basis after the Closing Date to permit the Borrower to repurchase
shares of its common stock or rights, options or units thereof in respect of any
management subscription or similar employment agreement and (iii) make
Restricted Payments consisting of Specified Preferred Stock.
(b) Permit the terms of any Contractual Obligation of any Subsidiary
to prohibit or limit the ability of any Subsidiary to declare or pay any
dividend or make any payment or other distribution, either directly or
indirectly, to or for the account of the Borrower or any other wholly-owned
Subsidiary of the Borrower provided that this subsection 8.8(b) shall not apply
to (i) purchase money obligations or Financing Leases (or refinancings thereof
that impose no more restrictive restrictions ) for property acquired in the
ordinary course of business that impose restrictions solely on the property so
acquired, (ii) restrictions with respect to a Subsidiary imposed pursuant to a
binding agreement which has been entered into for the sale or disposition
(including by merger or consolidation) of all or substantially all of the
Capital Stock or assets of such Subsidiary, provided that such restrictions
apply solely to such Capital Stock or asset of such Subsidiary and such sale or
disposition is otherwise permitted pursuant to this Agreement and (iii)
restrictions arising by reason of customary non-assignment or no-subletting
clauses in leases or other contracts entered into in the ordinary course of
business.
8.9 LIMITATION ON CAPITAL EXPENDITURES. Make any expenditure in
respect of the purchase or other acquisition of fixed or capital assets
(excluding any such asset acquired in connection with normal replacement and
maintenance programs properly charged to current operations and any expenditure
from the proceeds of casualty insurance used to repair or replace the assets
affected by such casualty loss) except for expenditures in the ordinary course
of business not exceeding, in the aggregate for the Borrower and its
Subsidiaries (i) during any of
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60
the fiscal years of the Borrower set forth below, the amount set forth
opposite such fiscal year below:
<TABLE>
<CAPTION>
FISCAL YEAR AMOUNT
----------- ------
<S> <C>
1998 $24,000,000
1999 $24,000,000
2000 $28,000,000
2001 $30,000,000
2002 $30,000,000
2003 $30,000,000
</TABLE>
PROVIDED, that in the event that the amount set forth above for any fiscal year
set forth (before giving effect to any carry-over amount pursuant to this
proviso) above exceeds the actual amount of all capital expenditures for such
fiscal year determined in accordance with GAAP, the entire amount of such excess
may be carried over for expenditure in that portion of the fiscal year
immediately following such fiscal year which follows delivery of the financial
statements delivered pursuant to subsection 7.1(a) with respect to such fiscal
year.
8.10 LIMITATION ON INVESTMENTS, LOANS AND ADVANCES. Make any advance,
loan, extension of credit or capital contribution to, or purchase any stock,
bonds, notes, debentures or other securities of or any assets constituting a
business unit of, or make any other investment in, any Person, except:
(a) the Acquisition;
(b) extensions of trade credit in the ordinary course of business;
(c) investments in Cash Equivalents;
(d) loans or advances to officers or employees to pay relocation costs
of such officers or employees in connection with their employment by the
Borrower or any of its Subsidiaries;
(e) any notes, securities or other instruments received as
consideration for any sale of assets permitted hereunder in an aggregate
amount not to exceed $500,000 in any fiscal year of the Borrower;
(f) any notes, securities or other instruments received as part of the
settlement of litigation or in satisfaction of extensions of credit to any
Person otherwise permitted hereunder pursuant to the reorganization,
bankruptcy or liquidation of such Person;
(g) (i) investments by the Borrower in its Subsidiaries which are
parties to the Guarantee and Collateral Agreement and the Capital Stock of
which is pledged to the Agent to secure the Borrower's obligations
hereunder and under the other Loan Documents, (ii) investments by
Subsidiaries of the Borrower which are not parties to the
<PAGE>
61
Guarantee and Collateral Agreement in other Subsidiaries of the
Borrower, (iii) investments by Subsidiaries of the Borrower which are
parties to the Guarantee and Collateral Agreement in the Borrower and in
other Subsidiaries of the Borrower which are parties to the Guarantee
and Collateral Agreement and (iv) investments by the Borrower or
Subsidiaries of the Borrower which are parties to the Guarantee and
Collateral Agreement in Canadian Subsidiaries or U.K. Subsidiaries in an
aggregate amount not to exceed $10,000,000 at any time outstanding
(determined on a cumulative basis from and after the Closing Date, but
giving effect to reductions of amounts outstanding by the amount of
capital in respect thereof returned in cash to the Borrower or the
applicable Subsidiary from time to time); PROVIDED that no such
investments shall be permitted in connection with an acquisition not
otherwise permitted under subsection 8.10(j);
(h) payroll advances in the ordinary course of business;
(i) travel and entertainment advances and other loans to officers and
employees, PROVIDED that the aggregate principal amount of all such loans
and advances outstanding at any one time shall not exceed $100,000;
(j) acquisitions by the Borrower and its Subsidiaries, of assets or
Capital Stock of one or more corporations or other Persons so long as (i)
each such acquisition and all transactions related thereto shall be
consummated in accordance with applicable Requirements of Law; (ii) each
such acquisition, in the case of an acquisition of Capital Stock, shall
result in such corporation or Person becoming a Subsidiary; (iii) after
giving effect to any such acquisition, no Default or Event of Default shall
have occurred and be continuing; (iv) the Borrower shall have delivered to
the Agent a certificate demonstrating that the requirements of subsection
8.1 would be satisfied on a pro forma basis as at the end of the most
recently ended fiscal quarter of the Borrower with respect to which
financial statements have been delivered pursuant to subsection 7.1 if each
such acquisition (including the Indebtedness incurred in connection
therewith) had occurred on the first day of the four fiscal quarter period
ended with such most recently ended fiscal quarter; and (v) in the case of
any acquisition by the Borrower and its Subsidiaries, for cash or other
consideration exceeding $30,000,000 in the aggregate, such acquisition
shall be subject to the prior written consent of the Required Lenders;
(k) investments existing on the Closing Date and set forth on Schedule
8.10; and
(l) investments not permitted by the foregoing clauses of this
subsection 8.10 by the Borrower or its Subsidiaries in a Person which the
Borrower and/or its Subsidiaries owns, or immediately after giving effect
to such investment will own, more than 20% of such Person's outstanding
voting Capital Stock (but which Person is not, and will not be, after
giving effect to such investment, a Subsidiary) in an aggregate amount not
to exceed $15,000,000 outstanding at any time (determined on a cumulative
basis from and after the Closing Date, but giving effect to reductions of
amounts outstanding by the amount of capital in respect thereof returned in
cash to the Borrower or the applicable Subsidiary from time to time).
<PAGE>
62
8.11 LIMITATION ON OPTIONAL PAYMENTS AND MODIFICATIONS OF DEBT
INSTRUMENTS. (a) Make any optional payment or prepayment on or redemption of
any Senior Subordinated Notes other than such payments in an aggregate amount
not to exceed $10,000,000 after the date hereof or (b) amend, modify or change,
or consent or agree to any amendment, modification or change to any of the terms
of the Senior Subordinated Notes (other than any such amendment, modification or
change which would extend the maturity or reduce the amount of any payment of
principal thereof or which would reduce the rate or extend the date for payment
of interest thereon or make changes relieving the Borrower from compliance with
the terms thereof) PROVIDED that the Borrower and its Subsidiaries may use the
proceeds of any equity offering to pay, prepay or redeem any Senior Subordinated
Notes if the requirements of subsection 8.1 would be satisfied on a pro forma
basis as at the end of the most recently ended fiscal quarter of the Borrower
with respect to which financial statements have been delivered pursuant to
subsection 7.1 if each such payment, prepayment or redemption had occurred on
the first day of the four fiscal quarter period ended with such most recently
ended fiscal quarter.
8.12 LIMITATION ON TRANSACTIONS WITH AFFILIATES. Enter into any
transaction, including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any service, with any Affiliate (other
than leases of property from Affiliates existing on the date hereof and
employment agreements, directors' fee arrangements, indemnification of
directors, officers and employees and loans to employees permitted hereunder in
the ordinary course of business) unless such transaction is (a) otherwise
permitted under this Agreement, (b) in the ordinary course of the Borrower's or
such Subsidiary's business and (c) upon fair and reasonable terms no less
favorable to the Borrower or such Subsidiary, as the case may be, than it would
obtain in a comparable arm's length transaction with a Person which is not an
Affiliate; PROVIDED that notwithstanding the foregoing, such prohibited
transactions with Affiliates shall not include (a) payments of reasonable and
customary directors' fees and indemnities of directors, officers and employees
(b) payments to Aurora under any management services agreement as in effect on
the Closing Date, (c) transfers of inventory among the Loan Parties in the
ordinary course of business and (d) loans or advances to officers or employees
of the Borrower or any of its Subsidiaries to pay business related travel
expenses or reasonable relocation costs of such officers or employees in
connection with their employment by the Borrower or any of its Subsidiaries.
8.13 LIMITATION ON SALES AND LEASEBACKS. Enter into any arrangement
with any Person providing for the leasing by the Borrower or any Subsidiary of
real or personal property which has been or is to be sold or transferred by the
Borrower or such Subsidiary to such Person or to any other Person to whom funds
have been or are to be advanced by such Person on the security of such property
or rental obligations of the Borrower or such Subsidiary.
8.14 LIMITATION ON CHANGES IN FISCAL YEAR. Permit the fiscal year of
the Borrower to end on a day other than December 31.
8.15 LIMITATION ON NEGATIVE PLEDGE CLAUSES. Enter into with any
Person any agreement, other than (a) this Agreement, (b) the Senior Subordinated
Note Indenture and (c) any
<PAGE>
63
purchase money mortgages or Financing Leases permitted by this Agreement (in
which cases, any prohibition or limitation shall only be effective against
the assets financed thereby), which prohibits or limits the ability of the
Borrower or any of its Subsidiaries to create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether now
owned or hereafter acquired other than any Lien granted under this Agreement
or to secure purchase money mortgages of Financing Leases.
8.16 LIMITATION ON LINES OF BUSINESS; CREATION OF SUBSIDIARIES. (a)
Enter into any business, either directly or through any Subsidiary, except for
businesses which are of the same general type, and reasonably related to, those
in which the Borrower and its Subsidiaries are engaged on the date of this
Agreement.
(b) Create any new Subsidiaries of the Borrower other than any
Subsidiaries that shall execute and become party to the Guarantee and Collateral
Agreement.
8.17 LIMITATION ON BORROWINGS. Incur any obligations under this
Agreement and the other Loan Documents in an aggregate outstanding amount at any
time in excess of the Borrowing Base (as defined in the Indentures) if such
incurrence would result in a default under any provision of the Indentures.
SECTION 9. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan when due
in accordance with the terms thereof or hereof; or the Borrower shall fail
to pay any Reimbursement Obligation within two days after such amount
becomes due in accordance with the terms thereof or hereof; or the Borrower
shall fail to pay any interest on any Note, or any other amount payable
hereunder, within five days after any such interest or other amount becomes
due in accordance with the terms thereof or hereof; or
(b) Any representation or warranty made or deemed made by the Borrower
or any other Loan Party herein or in any other Loan Document or which is
contained in any certificate, document or financial or other statement
furnished by it at any time under or in connection with this Agreement or
any such other Loan Document shall prove to have been incorrect in any
material respect on or as of the date made or deemed made; or
(c) The Borrower or any other Loan Party shall default in the
observance or performance of any agreement contained in subsection 7.7(a),
7.11 or Section 8 of this Agreement; or
(d) The Borrower or any other Loan Party shall default in the
observance or performance of any other agreement contained in this
Agreement or any other Loan Document (other than as provided in paragraphs
(a) through (c) of this Section), and such default shall continue
unremedied for a period of 30 days; or
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64
(e) The Borrower or any of its Subsidiaries shall (i) default in any
payment of principal of or interest of any Indebtedness (other than the
Notes) or in the payment of any Guarantee Obligation, in either case in an
outstanding principal amount in excess of $2,500,000, beyond the period of
grace (not to exceed 30 days), if any, provided in the instrument or
agreement under which such Indebtedness or Guarantee Obligation was
created; or (ii) default in the observance or performance of any other
agreement or condition relating to any such Indebtedness or Guarantee
Obligation or contained in any instrument or agreement evidencing, securing
or relating thereto, or any other event shall occur or condition exist, in
each case beyond the cure or grace period applicable thereto (not to exceed
30 days), if any, provided in the instrument or agreement under which such
Indebtedness or Guarantee Obligation was created, the effect of which
default or other event or condition (and such passage of the cure or grace
period, if applicable) is to cause, or to permit the holder or holders of
such Indebtedness or beneficiary or beneficiaries of such Guarantee
Obligation (or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, with the giving of notice if
required, such Indebtedness to become due prior to its stated maturity or
such Guarantee Obligation to become payable; or
(f) (i) The Borrower or any of its Subsidiaries shall commence any
case, proceeding or other action (A) under any existing or future law of
any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it or
its debts, or (B) seeking appointment of a receiver, trustee, custodian,
conservator or other similar official for it or for all or any substantial
part of its assets, or the Borrower or any of its Subsidiaries shall make a
general assignment for the benefit of its creditors; or (ii) there shall be
commenced against the Borrower or any of its Subsidiaries any case,
proceeding or other action of a nature referred to in clause (i) above
which (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period of 60 days; or (iii) there shall be commenced against
the Borrower or any of its Subsidiaries any case, proceeding or other
action seeking issuance of a warrant of attachment, execution, distraint or
similar process against all or any substantial part of its assets which
results in the entry of an order for any such relief which shall not have
been vacated, discharged, or stayed or bonded pending appeal within 60 days
from the entry thereof; or (iv) the Borrower or any of its Subsidiaries
shall take any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the acts set forth in clause (i),
(ii), or (iii) above; or (v) the Borrower or any of its Subsidiaries shall
generally not, or shall be unable to, or shall admit in writing its
inability to, pay its debts as they become due; or
(g) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302
of ERISA), whether or not waived, shall exist with respect to any Plan or
any Lien in favor of the PBGC or a Plan
<PAGE>
65
shall arise on the assets of the Borrower or any Commonly Controlled
Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee
shall be appointed, to administer or to terminate, any Single Employer
Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is, in the reasonable opinion of the Required
Lenders, likely to result in the termination of such Plan for purposes
of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for
purposes of Title IV of ERISA, (v) the Borrower or any Commonly
Controlled Entity shall, or in the reasonable opinion of the Required
Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a Multiemployer
Plan or (vi) any other event or condition shall occur or exist with
respect to a Plan; and in each case in clauses (i) through (vi) above,
such event or condition, together with all other such events or
conditions, if any, could reasonably be expected to have a Material
Adverse Effect; or
(h) One or more judgments or decrees shall be entered against the
Borrower or any of its Subsidiaries involving in the aggregate a liability
(not paid or fully covered by insurance) of $1,000,000 or more at any one
time, and all such judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within 60 days from the entry
thereof; or
(i) (i) Any material provision of the Security Agreements shall cease,
for any reason, to be in full force and effect, or the Borrower or any
other Loan Party which is a party to any of the Security Agreements shall
so assert or (ii) the Lien created by any of the Security Agreements shall
cease to be enforceable and of the same effect and priority purported to be
created thereby; or
(j) Any guarantee under the Guarantee and Collateral Agreement shall
cease, for any reason, to be in full force and effect or any Guarantor
shall so assert, except in the event of a merger of Subsidiaries permitted
hereunder if the surviving or continuing Subsidiary is a Guarantor or the
Borrower; or
(k) Any of the subordination provisions in any Senior Subordinated
Note shall cease, for any reason, to be in full force and effect, or the
Borrower or any other party to the Senior Subordinated Note or any holder
of the notes thereunder shall so assert;
then, and in any such event, (A) if such event is an Event of Default specified
in paragraph (f) above with respect to the Borrower, automatically the
Commitments shall immediately terminate and the Loans hereunder (with accrued
interest thereon) and all other amounts owing under this Agreement (including,
without limitation, all amounts of L/C Obligations, whether or not the
beneficiaries of the then outstanding Letters of Credit shall have presented the
documents required thereunder) and the Notes shall immediately become due and
payable, and (B) if such event is any other Event of Default, either or both of
the following actions may be taken: (i) with the consent of the Required
Lenders, the Agent may, or upon the request of the Required Lenders, the Agent
shall, by notice to the Borrower declare the Commitments to be terminated
forthwith, whereupon the Commitments shall immediately terminate; and (ii) with
the consent of the Required Lenders, the Agent may, or upon the request of the
Required Lenders, the Agent
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shall, by notice to the Borrower, declare the Loans hereunder (with accrued
interest thereon) and all other amounts owing under this Agreement
(including, without limitation, all amounts of L/C Obligations, whether or
not the beneficiaries of the then outstanding Letters of Credit shall have
presented the documents required thereunder) and the Notes to be due and
payable forthwith, whereupon the same shall immediately become due and
payable. With respect to all Letters of Credit with respect to which
presentment for honor shall not have occurred at the time of an acceleration
pursuant to the preceding paragraph, the Borrower shall at such time deposit
in a cash collateral account opened by the Agent an amount equal to the
aggregate then undrawn and unexpired amount of such Letters of Credit. The
Borrower hereby grants to the Agent, for the benefit of the Issuing Lender
and the L/C Participants, a security interest in such cash collateral to
secure all obligations of the Borrower under this Agreement and the other
Loan Documents. Amounts held in such cash collateral account shall be applied
by the Agent to the payment of drafts drawn under such Letters of Credit, and
the unused portion thereof after all such Letters of Credit shall have
expired or been fully drawn upon, if any, shall be applied to repay other
obligations of the Borrower hereunder and under the Notes. After all such
Letters of Credit shall have expired or been fully drawn upon, all
Reimbursement Obligations shall have been satisfied and all other obligations
of the Borrower hereunder and under the Notes shall have been paid in full,
the balance, if any, in such cash collateral account shall be returned to the
Borrower. The Borrower shall execute and deliver to the Agent, for the
account of the Issuing Lender and the L/C Participants, such further
documents and instruments as the Agent may request to evidence the creation
and perfection of the within security interest in such cash collateral
account.
Except as expressly provided above in this Section 9, presentment,
demand, protest and all other notices of any kind are hereby expressly waived to
the fullest extent permitted by applicable law.
SECTION 10. THE AGENT
10.1 APPOINTMENT. Each Lender hereby irrevocably designates and
appoints the Agent as the agent of such Lender under this Agreement and the
other Loan Documents, and each such Lender irrevocably authorizes the Agent, in
such capacity, to take such action on its behalf under the provisions of this
Agreement and the other Loan Documents and to exercise such powers and perform
such duties as are expressly delegated to the Agent by the terms of this
Agreement and the other Loan Documents, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, the Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the Agent.
10.2 DELEGATION OF DUTIES. The Agent may execute any of its duties
under this Agreement and the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys in-fact selected by it with
reasonable care.
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10.3 EXCULPATORY PROVISIONS. Neither the Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates shall be
(i) liable for any action lawfully taken or omitted to be taken by it or such
Person under or in connection with this Agreement or any other Loan Document
(except for its or such Person's own gross negligence or willful misconduct) or
(ii) responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by the Borrower or any officer
thereof contained in this Agreement or any other Loan Document or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Agent under or in connection with, this Agreement or any
other Loan Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or the Notes or any other Loan
Document or for any failure of the Borrower to perform its obligations hereunder
or thereunder. The Agent shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of the Borrower.
10.4 RELIANCE BY AGENT