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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
[ X ] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended September 28, 2001
OR
[____] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from ______ to ______
Commission file number 0-16255
JOHNSON OUTDOORS INC.
(Exact name of Registrant as specified in its charter)
Wisconsin 39-1536083
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1326 Willow Road, Sturtevant, Wisconsin 53177
(Address of principal executive offices)
(262) 884-1500
(Registrant's telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to section 12(g) of the Act:
Class A common stock, $.05 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. [ ]
As of November 1, 2001, 6,946,012 shares of Class A and 1,222,729
shares of Class B common stock of the Registrant were outstanding. The aggregate
market value of voting stock of the Registrant held by nonaffiliates of the
Registrant was approximately $25,182,136 on November 1, 2001.
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DOCUMENTS INCORPORATED BY REFERENCE
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Part and Item Number of Form
Document 10-K into which Incorporated
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Johnson Outdoors Inc. Notice of Annual Part III, Items 10, 11, 12
Meeting of Shareholders and Proxy Statement and 13
for the Annual Meeting of Shareholders to be
held February 19, 2002.
Table of Contents Page
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Business 1
Properties 5
Legal Proceedings 5
Submission of Matters to a Vote of Security Holders 5
Market for Registrant's Common Equity and Related
Stockholder Matters 6
Selected Financial Data 7
Management's Discussion and Analysis of Financial Condition
and Results of Operations 8
Quantitative and Qualitative Disclosures about Market Risk 14
Financial Statements and Supplementary Data 14
Changes in and Disagreements with Accountants on Accounting
and Financial Disclosure 14
Directors and Executive Officers of the Registrant 14
Executive Compensation 14
Security Ownership of Certain Beneficial Owners and
Management 14
Certain Relationships and Related Transactions 14
Exhibits, Financial Statement Schedules and Reports on
Form 8-K 14
Signatures 16
Exhibit Index 17
Consolidated Financial Statements F-1
Forward Looking Statements
Certain matters discussed in this 2001 Form 10-K and in the accompanying 2001
Annual Report are "forward-looking statements," intended to qualify for the safe
harbors from liability established by the Private Securities Litigation Reform
Act of 1995. These forward-looking statements can generally be identified as
such because the context of the statement includes phrases such as the Company
"expects," "believes" or other words of similar meaning. Similarly, statements
that describe the Company's future plans, objectives or goals are also
forward-looking statements. Such forward-looking statements are subject to
certain risks and uncertainties which could cause actual results or outcomes to
differ materially from those currently anticipated. Factors that could affect
actual results or outcomes include changes in consumer spending patterns,
actions of companies that compete with the Company, the Company's success in
managing inventory, movements in foreign currencies or interest rates and
adverse weather conditions. Shareholders, potential investors and other readers
are urged to consider these factors in evaluating the forward-looking statements
and are cautioned not to place undue reliance on such forward-looking
statements. The forward-looking statements included herein are only made as of
the date of this 2001 Form 10-K and in the accompanying 2001 Annual Report and
the Company undertakes no obligations to publicly update such forward-looking
statements to reflect subsequent events or circumstances.
PART I
ITEM 1. BUSINESS
Johnson Outdoors Inc. and its subsidiaries (the "Company") design, manufacture
and market outdoor recreation products in four businesses: Diving, Watercraft,
Outdoor Equipment and Motors. The Company's primary focus is innovation--meeting
consumer needs with breakthrough products that stand apart from the competition
and advance the Company's strong brand names. Its subsidiaries are organized in
a network that promotes entrepreneurialism and leverages best practices and
synergies, following the strategic vision set by headquarters. The Company is
controlled by Samuel C. Johnson, members of his family and related entities.
The Company was incorporated in Wisconsin in 1987 as successor to various
businesses.
Diving
The Company is one of the world's largest manufacturers and distributors of
technical underwater diving products, which it sells under the Scubapro and
SnorkelPro names. The Company markets a full line of underwater diving and
snorkeling equipment, including regulators, stabilizing jackets, tanks, depth
gauges, masks, fins, snorkels, diving electronics and other accessories. The
Company is also a leading manufacturer of dive computers and other electronics
sold under the Aladin and Uwatec brands. Scubapro, Aladin and Uwatec products
are marketed to the high quality, premium priced segment of the market via
limited distribution to independent specialty diving shops worldwide. These
diving shops generally provide a wide range of services to divers, including
instruction and repair service.
The Company focuses on maintaining Scubapro, Aladin and Uwatec as the market
leaders in innovation and new products. The Company maintains research and
development functions both in the United States and Europe and holds several
patents on products and features. Consumer advertising focuses on building the
brand names and the Company's position as the industry's high quality and
innovation leader. The Company advertises its equipment in diving magazines and
through in-store displays.
The Company also manufactures and markets diving buoyancy compensators primarily
for the original equipment market, under the Soniform name.
The Company maintains manufacturing and assembly facilities in Switzerland,
Mexico, Italy and Indonesia and procures a majority of its rubber and plastic
products and components from third-party manufacturers.
Watercraft
The Company manufactures and markets canoes, kayaks, paddles, oars, recreational
sailboats, personal flotation devices and small thermoformed recreational boats
under the brand names Old Town, Carlisle Paddles, Ocean Kayak, Pacific Kayak,
Canoe Sports, Necky, Escape, Extrasport, Swiftwater, Leisure Life and Dimension.
The Company's Old Town Canoe subsidiary produces high quality canoes, kayaks and
accessories for family recreation, touring and tripping. The Company uses a
patented rotational-molding process for manufacturing polyethylene kayaks and
canoes to compete in the high volume, low and mid-priced range of the market.
These kayaks and canoes feature stiffer and more durable hulls than higher
priced boats. The Company also manufactures canoes from fiberglass, Royalex
(ABS) and wood. Carlisle Paddles, a manufacturer of canoe and kayak paddles and
rafting oars, supplies paddles and oars to the Company's other watercraft
businesses and also distributes directly through the accessories channels
mentioned below under the Carlisle brand.
The Company is a leading manufacturer of sit-on-top kayaks under the Ocean Kayak
and Pacific Kayak brands. In addition, the Company manufactures and markets high
quality Necky sea touring and whitewater kayaks; Escape recreational sailboats;
Extrasport and Swiftwater personal flotation devices; small thermoformed
recreational boats, including canoes, pedal boats, deck boats and tenders, under
the Leisure Life brand; and the Dimension brand of kayaks.
-1-
In April 2001, the Company completed the acquisition of Fibrekraft Manufacturers
Ltd., a manufacturer of paddles and watercraft accessories based in Napier, New
Zealand.
The Company's kayaks, canoes and accessories are sold primarily to specialty
stores and marine dealers, sporting goods stores and catalog and mail order
houses such as L. L. Bean(R), in the United States and Europe. Leisure Life
products are sold through marine dealers and large retail chains under several
brand identities.
The Company manufactures its Watercraft products in six locations in the United
States, two locations in Canada and in New Zealand. Ocean Kayak products are
also manufactured and sold under license in Europe.
The North American market for kayaks is exhibiting strong growth, while the
canoe market is growing modestly. The Company believes, based on industry and
other data, that it is a leading manufacturer of canoes and kayaks in the United
States in both unit and dollar sales.
Outdoor Equipment
The Company's Outdoor Equipment products include Jack Wolfskin high quality
technical outdoor clothing, innovative footwear, camping tents, backpacks,
travel gear and accessories; Eureka! military, commercial and consumer tents;
Camp Trails backpacks; and Silva field compasses.
Jack Wolfskin, based in Germany, distributes its products primarily through
specialized outdoor stores, selected sporting goods dealers and a number of
franchised Jack Wolfskin stores. Jack Wolfskin has a strong position in Germany
with additional distribution in the key European markets of Great Britain,
Benelux, Switzerland and Austria. The product is also sold in Canada and the
United States and, under license, in Japan. Jack Wolfskin utilizes the latest in
fabric technology to produce products that are both comfortable and protective
for outdoor related activities. The products compete in the premium segments.
Eureka! consumer tents and Camp Trails backpacks compete primarily in the mid-
to high-price range and are sold in the United States and Canada through
independent sales representatives, primarily to sporting goods stores, catalog
and mail order houses and camping and backpacking specialty stores. Marketing of
the Company's tents and backpacks is focused on building the Eureka! and Camp
Trails brand names and establishing the Company as a leader in tent design and
innovation. The Company's camping tents and backpacks are produced primarily by
third-party manufacturing sources.
Eureka! camping tents have outside self-supporting aluminum frames, allowing
quicker and easier set-up, a design approach the Company originated. Most
Eureka! tents are made from breathable nylon. Eureka! camping products are sold
under license in Japan and Korea. Eureka! commercial tents include party tents,
sold primarily to general rental stores, and other commercial tents sold
directly to tent erectors. Commercial tents are manufactured by the Company in
the United States.
Eureka! designs and manufactures large, heavy-duty tents and lightweight
backpacking tents for the military. The Company has three contracts for
production of both camping and commercial tents with the U.S. Armed Forces. In
1997, the Company was awarded contracts to produce a lightweight, two-man combat
tent for the Marine Corps and a modular, general purpose tent for the Army. The
Marine Corps contract was for 60 months and expires in August 2002. The Company
has shipped more than 80% of the contract's maximum order quantities. The Army
contract was for five years (base year and an option for four additional
ordering periods). The first two optional ordering periods were exercised and
the Army is currently in optional ordering period three, which expires in
December 2001. The Company believes the final ordering period will be exercised
and would expire in December 2002. All material terms and obligations of these
contracts have been and continue to be satisfied. In September 2001, the Company
was awarded a five-year contract (base year and four optional years) to produce
a four-person, extreme cold weather tent for the Marine Corps. The Company has
submitted bids on additional contracts and expects decisions on contract awards
to be made in 2002.
Camp Trails backpacks consist primarily of internal and external frame backpacks
for hiking and mountaineering, but also include soft back bags, day packs and
travel packs.
-2-
Silva field compasses, which are manufactured by third parties, are marketed
exclusively in North America, the area for which the Company owns Silva
trademark rights.
Motors
The Company manufactures, under its Minn Kota name, battery powered motors used
on fishing boats and other boats for quiet trolling power or primary propulsion.
The Company's Minn Kota motors and related accessories are sold in the United
States, Canada, Europe and the Pacific Basin through large retail store chains
such as Wal Mart and K-Mart, catalogs such as Bass Pro Shops and Cabelas,
sporting goods specialty stores, marine dealers, and original equipment
manufacturers (OEM) including Ranger(R) Boats, Lowe, Stratos/Javilin, Four
Winns, Triton Boats, Lund Boats, Smoker Craft, Alumacraft, Skeeter, Express
Boats and Tracker. Consumer advertising and promotion include advertising on
regional television and in outdoor, general interest and sports magazines.
Packaging and point-of-purchase materials are used to increase consumer appeal
and sales.
The Company has the leading market share of the U.S. electric fishing motor
market. While the overall motors market has been stagnant in recent years, the
Company has been able to gain share by emphasizing marketing, product innovation
and original equipment manufacturer sales.
The Company's line of Airguide marine, weather and automotive instruments is
distributed primarily in the United States through large retail store chains and
OEMs. Airguide products are manufactured by the Company or sourced from
third-party manufacturers. In 2001, the Company exited the weather and
automotive instrument categories.
Fishing
In March 2000, the Company sold its Fishing business (consisting of the
marketing of rods, reels, lures, spoons and fishing line). As a result, the
operations and related assets and liabilities of the Fishing business have been
restated as discontinued for financial reporting purposes. A significant loss on
the sale of the business was recognized, but the tangible net worth of the
Company was not adversely impacted. See Note 4 to the Consolidated Financial
Statements for financial information.
Financial Information for Business Segments
See Note 13 to the Consolidated Financial Statements for financial information
comparing each business segment.
International Operations
See Note 13 to the Consolidated Financial Statements for financial information
comparing the Company's domestic and international operations.
Research and Development
The Company commits significant resources to research and new product
development. The Company expenses research and development costs as incurred.
The amounts expended by the Company in connection with research and development
activities for each of the last three fiscal years are set forth in the
Consolidated Statements of Operations.
Competition
The Company believes its products compete favorably on the basis of product
innovation, product performance and marketing support and, to a lesser extent,
price.
Diving: The main competitors in Diving include Oceanic, Aqualung and Suunto,
each of which competes on the basis of product innovation, performance, quality
and safety.
Watercraft: The Company primarily competes in the paddle sport segment of canoes
and kayaks. Main competitors are Watermark and Confluence, who also make a full
range of boats. These companies compete on the basis of their design,
performance and quality.
-3-
Outdoor Equipment: The Company's brands and products compete in the specialty
segments of the outdoor equipment market and not in the mass market. Coleman,
Jansport and private label brands have a strong position in tents and packs sold
in mass outlets, and the Company does not intend to compete head on with these
manufacturers. The Company intends to compete with the specialty companies such
as North Face and Kelty on the basis of materials and innovative designs for
consumers who want performance products priced at a value.
Motors: The main competitor in electric trolling motors is Motor Guide from
Brunswick, who manufactures and sells a full range of trolling motors and
accessories. Competition in this segment is focused on product benefits and
features for fishing.
Employees
At September 28, 2001, the Company had approximately 1,400 employees. The
Company considers its employee relations to be excellent. Temporary employees
are utilized to manage peaks in the seasonal manufacturing of products.
Backlog
Unfilled orders for future delivery of products of continuing operations totaled
approximately $51.6 million at September 28, 2001 and $61.0 million at September
29, 2000. The Company's businesses do not receive significant orders in advance
of expected shipment dates for the majority of their products.
Patents, Trademarks and Proprietary Rights
The Company owns no single patent that is material to its business as a whole.
However, the Company holds several patents, principally for diving products,
rotational-molded canoes and electric motors, and regularly files applications
for patents. The Company has numerous trademarks and trade names which it
considers important to its business, many of which are discussed on the
preceding pages. The Company vigorously defends its intellectual property
rights.
Sources and Availability of Materials
The Company's products use materials that are generally in adequate supply.
Seasonality
The Company's business is seasonal. The following table shows, for the past
three fiscal years, total net sales and operating profit or loss related to
continuing operations of the Company for each quarter, as a percentage of the
total year. Strategic charges totaling $1.4 million, $2.4 million and $2.8
million impacted operating results in 2001, 2000 and 1999, respectively.
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Year Ended
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September 28, 2001 September 29, 2000 October 1, 1999
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Net Operating Net Operating Net Operating
Quarter Ended Sales Profit (Loss) Sales Profit Sales Profit (Loss)
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December 17% (23)% 16% 1% 16% (16)%
March 29 42 28 39 28 43
June 33 83 33 56 33 70
September 21 (2) 23 4 23 3
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100% 100% 100% 100% 100% 100%
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Executive Officers
The following list sets forth certain information, as of December 1, 2001,
regarding the executive officers of the Company.
-4-
Helen P. Johnson-Leipold, age 44, became Chairman and Chief Executive Officer of
the Company in March 1999. From September 1998 until March 1999, Ms.
Johnson-Leipold was Vice President, Worldwide Consumer Products-Marketing of S.
C. Johnson & Son, Inc. (SCJ). From October 1997 to September 1998, she was Vice
President, Personal and Home Care Products of SCJ. From October 1995 until July
1997, Ms. Johnson-Leipold was Executive Vice President - North American
Businesses of the Company. From 1992 to September 1995, she was Vice President -
Consumer Marketing Services Worldwide of SCJ.
Patrick J. O'Brien, age 43, became President and Chief Operating Officer of the
Company in April 1999. From October 1997 until March 1999, Mr. O'Brien was Vice
President and General Manager, Home Storage of SCJ. From July 1997 until October
1997, Mr. O'Brien was Vice President - Strategic Business of SCJ; from April
1996 until June 1997, he was Vice President - North American Sales of SCJ; from
June 1995 until March 1996, he was Director - North American Sales of SCJ and
from January 1993 until May 1995, he was National Sales Manager of SCJ.
Paul A. Lehmann, age 48, became Vice President and Chief Financial Officer of
the Company in May 2001. From October 1999 to May 2001, Mr. Lehmann was Vice
President, Finance and Strategic Planning of Steelcase North America (SCNA).
From June 1997 to October 1999, Mr. Lehmann was Vice President, Operations
Finance of SCNA. From November 1995 to June 1997, he was Director of Customer
Pricing and Contracts for SCNA.
Mamdouh Ashour, age 63, has been a Group Vice President of the Company since
October 1997 and President - Worldwide Diving since August 1996. From 1994 to
August 1996, he served as President of Scubapro Europe. He has been employed by
the Company since 1973.
There are no family relationships between the above executive officers.
ITEM 2. PROPERTIES
The Company maintains both leased and owned manufacturing, warehousing,
distribution and office facilities throughout the world. The Company believes
that its facilities are well maintained and have capacity adequate to meet its
current needs.
See Note 6 to the Consolidated Financial Statements for a discussion of lease
obligations.
The Company's principal manufacturing (identified with an asterisk) and other
locations are:
Albany, New Zealand (Watercraft) Grand Rapids, Michigan* (Watercraft)
Antibes, France (Diving) Grayling, Michigan* (Watercraft)
Bad Sakingen, Germany (Diving) Hallwil, Switzerland* (Diving)
Barcelona, Spain (Diving) Hamburg, Germany (Diving)
Basingstoke, Hampshire, England Henggart, Switzerland (Diving)
(Diving)
Batam, Indonesia* (Diving) Idstein, Germany (Outdoor Equipment)
Binghamton, New York* (Outdoor Mankato, Minnesota* (Motors)
Equipment)
Burlington, Ontario, Canada (Motors, Mansonville, Quebec, Canada*
Outdoor Equipment) (Watercraft)
Miami, Florida* (Watercraft)
Chatswood, Australia (Diving) Napier, New Zealand (Watercraft)
Chi Wan, Hong Kong (Diving) Nykoping, Sweden (Diving)
El Cajon, California (Diving) Old Town, Maine* (Watercraft)
Ferndale, Washington* (Watercraft) Tijuana, Mexico* (Motors, Diving)
Genoa, Italy* (Diving) Tokyo (Kawasaki), Japan (Diving)
The Company's corporate headquarters is located in Mount Pleasant, Wisconsin.
The Company's mailing address is Sturtevant, Wisconsin.
ITEM 3. LEGAL PROCEEDINGS
See Note 16 to the Consolidated Financial Statements for a discussion of legal
proceedings.
-5-
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
There were no matters submitted to a vote of security holders during the last
quarter of the year ended September 28, 2001.
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
Certain information with respect to this item is included in Notes 5, 9, 10 and
11 to the Consolidated Financial Statements. The Company's Class A common stock
is traded on The Nasdaq Stock Market(R) under the symbol: JOUT. There is no
public market for the Company's Class B common stock. However, the Class B
common stock is convertible at all times at the option of the holder into shares
of Class A common stock on a share for share basis. As of November 1, 2001, the
Company had 755 holders of record of its Class A common stock and 58 holders of
record of its Class B common stock. The Company has never paid, and has no
current intention to pay, a dividend on its common stock.
A summary of the high and low prices for the Company's Class A common stock
during each quarter of the years ended September 28, 2001 and September 29, 2000
is as follows:
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First Quarter Second Quarter Third Quarter Fourth Quarter
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2001 2000 2001 2000 2001 2000 2001 2000
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Stock prices:
High $7.00 $9.19 $7.56 $8.50 $8.49 $9.69 $7.39 $7.94
Low 4.75 6.13 5.50 6.13 5.90 6.13 5.98 5.75
Last 5.88 7.10 6.13 6.19 6.74 7.06 6.47 6.94
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-6-
ITEM 6. SELECTED FINANCIAL DATA
A summary of the Company's operating results and key balance sheet data for each
of the years in the five-year period ended September 28, 2001 is presented
below. All periods have been restated to reflect the discontinuation of the
Company's Fishing business.
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Year Ended
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September 28 September 29 October 1 October 2 October 3
(thousands, except per share data) 2001 2000 1999 1998 1997
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OPERATING RESULTS (1)
Net sales $ 345,637 $ 354,889 $ 310,198 $ 274,005 $ 242,351
Gross profit 136,703 142,813 125,774 110,789 94,147
Operating expenses (2) 120,985 118,094 106,261 92,433 80,266
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Operating profit 15,718 24,719 19,513 18,356 13,881
Interest expense 9,085 9,799 9,565 9,631 8,413
Other expense (income), net 543 (160) (71) (539) (624)
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Income from continuing operations before
income taxes 6,090 15,080 10,019 9,264 6,092
Income tax expense 2,480 6,705 4,158 3,885 2,721
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Income from continuing operations before
cumulative effect of change in
accounting principle 3,610 8,375 5,861 5,379 3,371
Income (loss) from discontinued operations -- (940) 1,161 (167) (1,315)
Loss on disposal of discontinued operations -- (24,418) -- -- --
Effect of change in accounting principle 1,755 -- -- -- --
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Net income (loss) $ 5,365 $ (16,983) $ 7,022 $ 5,212 $ 2,056
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Basic earnings (loss) per common share:
Continuing operations $ 0.44 $ 1.03 $ 0.72 $ 0.66 $ 0.42
Discontinued operations -- (3.12) 0.15 (0.02) (0.17)
Effect of change in accounting principle 0.22 -- -- -- --
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Net income (loss) $ 0.66 $ (2.09) $ 0.87 $ 0.64 $ 0.25
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Diluted earnings (loss) per common share:
Continuing operations $ 0.44 $ 1.03 $ 0.72 $ 0.66 $ 0.42
Discontinued operations -- (3.12) 0.15 (0.02) (0.17)
Effect of change in accounting principle 0.22 -- -- -- --
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Net income (loss) $ 0.66 $ (2.09) $ 0.87 $ 0.64 $ 0.25
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Diluted average common shares outstanding 8,170 8,130 8,108 8,114 8,115
=======================================================================================================================
BALANCE SHEET DATA
Current assets (3) $ 133,180 $ 144,194 $ 185,733 $ 188,224 $ 184,555
Total assets 244,913 257,971 299,025 292,380 272,605
Current liabilities (4) 36,568 46,941 45,072 39,448 36,772
Long-term debt, less current maturities 84,550 45,857 72,744 81,508 87,926
Total debt 97,535 105,319 122,071 124,001 113,676
Shareholders' equity 105,779 100,832 127,178 124,386 117,731
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(1) The year ended October 3, 1997 includes 53 weeks. All other years include 52 weeks.
(2) Includes strategic charges of $1,448, $2,369, $2,773, $1,388 and $335 in
2001, 2000, 1999, 1998 and 1997, respectively.
(3) Includes net assets of discontinued operations of $56,114, $58,462 and $66,507 in 1999, 1998 and 1997,
respectively.
(4) Excluding short-term debt and current maturities of long-term debt.
-7-
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
The following discussion includes comments and analysis relating to the
Company's results of operations and financial condition for the three years
ended September 28, 2001. Unless otherwise noted, the discussion refers to
continuing operations. This discussion should be read in conjunction with the
Consolidated Financial Statements and related notes thereto.
Results of Operations
Summary consolidated financial results from continuing operations are as
follows:
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(millions, except per share data) 2001 2000 1999
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Net sales $345.6 $354.9 $310.2
Gross profit 136.7 142.8 125.8
Operating expenses (1) 121.0 118.1 106.3
Operating profit 15.7 24.7 19.5
Interest expense 9.1 9.8 9.6
Income from continuing operations 3.6 8.4 5.9
Diluted earnings per common share from continuing operations
before change in accounting principle 0.44 1.03 0.72
- --------------------------------------------------------------------------------------------------------------------
(1) Includes strategic charges of $1.4 million, $2.4 million and $2.8 million in
2001, 2000 and 1999, respectively.
2001 vs 2000
Net Sales
Net sales totaled $345.6 million in 2001 compared to $354.9 million in 2000, a
decrease of 3%. Sales as measured in U.S. dollars were impacted by the effects
of foreign currencies relative to the U.S. dollar in comparison to 2000.
Excluding the effects of foreign currency movements, sales were nearly flat when
compared with 2000. The flat trend in sales was a result of a soft economy both
in the United States (U.S.) and abroad. Sales were impacted by customer
bankruptcies in both the Motors and Diving businesses. The Company believes
these bankruptcies impacted sales in 2001 by approximately $4.8 million. As a
result of the soft economy, we saw marginal growth or even contraction in the
markets of our businesses. However, market data indicated that the Company
gained market share in nearly all of our businesses.
The Outdoor Equipment business was strong, increasing sales 10% over 2000,
primarily related to strong performances by Jack Wolfskin and military tents.
Diving sales were down 3% from 2000, primarily related to the negative impact of
foreign currency movements from 2000. Excluding the effects of foreign currency
movements, Diving sales increased 3% from 2000. The Watercraft and Motors
businesses were impacted the most by the soft economy, with sales declines of 5%
and 16%, respectively. The Motors business gained market share in a contracting
market and lost approximately $4.0 million in sales related to the bankruptcy of
a large OEM customer. However, the Company feels a majority of these sales will
return in 2002, as the OEM customer was sold out of bankruptcy and has begun
placing orders. The Watercraft business saw a significant decline in market
growth after three plus years of double digit growth in that category.
Operating Results
The Company recognized an operating profit of $15.7 million in 2001 compared to
an operating profit of $24.7 million in 2000. Gross profit margins decreased
from 40.2% in 2000 to 39.6% in 2001, as improvements in the Diving and Outdoor
Equipment businesses were more than offset by declines in the Watercraft and
Motors businesses. Shortfalls in sales volume for 2001 negatively impacted gross
profits by $3.4 million due to unfavorable manufacturing labor and overhead
variances, primarily in the Watercraft business, and to a lesser extent, the
Motors business.
-8-
Operating expenses, excluding strategic charges, totaled $119.5 million, or
34.6% of sales, in 2001 compared to $115.7, or 32.6% of sales in 2000.
Amortization of acquisition costs were $5.3 million in 2001, which included a
$2.5 million write-down for impaired goodwill related to the Airguide brand in
the Motors business, compared to $3.0 million in 2000. Bad debt expense related
to the previously mentioned customer bankruptcies added approximately $0.9
million to operating expenses in 2001.
The Outdoor Equipment business increased operating profit by $3.8 million, or
47%, to $12.0 million in 2001 compared to $8.2 million in 2000. Strong results
by Jack Wolfskin and military tents more than offset softness in the consumer
and commercial tent businesses. The Diving business was also strong, increasing
operating profits by 7% to $11.6 million in 2001, despite a sales decline, by
improving product mix towards higher margin products along with a decline in
operating expenses. Excluding the $2.5 million write-down for impaired goodwill,
the Motors business had operating profits of $2.8 million in 2001 compared to
$3.9 million in 2000. A decline in operating expense, excluding strategic
charges, of $1.0 million versus the prior year, helped mitigate the decline in
operating profit.
The Watercraft business was impacted by several issues, resulting in a decline
in operating profits in 2001 to $1.3 million from operating profits of $10.3
million in 2000. The business experienced the trailing affects of significant
growth, over-capacity and the impacts of too much complexity in this segment of
our business. In addition to the gross profit issues described above, operating
expenses grew by $3.1 million, or 11% from 2000 levels due to investment in
infrastructure to support the previous significant growth of the business and
additional costs supporting the complex structure of the business. The Company
believes the issues related to Watercraft can and are being fixed, as evidenced
by the closure and relocation of two manufacturing facilities in 2001. The
Company is in the process of streamlining U.S. East coast distribution from five
warehouses down to one and has hired both a new general manager and operations
manager at our Old Town Canoe business, to drive improved results from this
important operation in the Watercraft business. The Company will continue to
investigate synergistic opportunities in this business over the next year.
The Company recognized strategic charges totaling $1.4 million in 2001 for
severance, moving and other costs related to the closure and relocation of two
manufacturing facilities in the Watercraft business. The Company believes that
these actions will save approximately $1.5 million in operating expenses on an
annual basis after completion. The Company anticipates incurring additional
strategic charges related to these actions of approximately $0.7 million in
2002. In 2000, the Company incurred strategic charges of $2.4 million from
severance, moving and other costs related to the closure and relocation of a
manufacturing facility in the Motors business and for severance, relocation and
recruitment costs in the North American Outdoor Equipment business.
Other Income and Expenses
Interest expense decreased $0.7 million in 2001, reflecting a decline in
interest rates from prior year levels and a reduction in working capital needs
versus 2000 levels. Foreign currency translation losses related to the mark to
market of foreign currency denominated debt and foreign currency forward
contracts resulted in an increase of $0.7 million in translation losses over the
prior year levels.
Results From Continuing Operations
The Company recognized income from continuing operations before cumulative
effect of change in accounting principle of $3.6 million in 2001 or $0.44 per
diluted share, compared to $8.4 million in 2000 or $1.03 per diluted share. The
Company recorded income tax expense of $2.5 million in 2001, an effective tax
rate of 40.7%. This decreased rate (from 44.5% in 2000) is mainly the result of
changes in mix of earnings from jurisdictions with higher tax rates to those
with lower tax rates.
Discontinued Operations
In March 2000, the Company sold its Fishing business. The Company recorded a
loss on disposal of a discontinued business, net of tax, of $24.4 million in
2000, taking into account operating results of the business from the measurement
date to the date of disposal. In addition, the Company recorded an after tax
loss from operations up to the measurement date of $0.9 million in 2000.
-9-
Change in Accounting Principle
Effective September 30, 2000, the Company adopted SFAS 133, which establishes
accounting and reporting standards for derivative instruments, including certain
derivative instruments embedded in other contracts and for hedging activities.
All derivatives, whether designated in hedging relationships or not, are
required to be recorded on the balance sheet at fair value. If the derivative is
designated as a fair value hedge, the changes in fair value of the derivative
and the hedged item are recognized in earnings. If the derivative is designated
as a cash flow hedge, changes in the fair value of the derivative are recorded
in other comprehensive income and are recognized in earnings when the hedged
item affects earnings.
The adoption of SFAS 133 resulted in an effect of change in accounting principle
after tax gain of $1.8 million in 2001.
Net Income (Loss)
The Company recognized net income of $5.4 million in 2001, or $0.66 per diluted
share, compared to a net loss of $17.0 million in 2000, or $2.09 per diluted
share.
2000 vs 1999
Net Sales
Net sales totaled $354.9 million in 2000 compared to $310.2 million in 1999, an
increase of 14%. Sales as measured in U.S. dollars were impacted by the effect
of foreign currencies relative to the U.S. dollar in comparison to 1999.
Excluding the effects of foreign currency movements, sales increased 17% from
1999. The increase was partially driven by the introduction of innovative new
products in the Watercraft and Motors businesses, as well as growth in sales of
existing products in Watercraft, Motors and Outdoor Equipment.
Operating Results
The Company recognized an operating profit of $24.7 million in 2000 compared to
an operating profit of $19.5 million in 1999. Gross profit margins decreased
from 40.5% in 1999 to 40.2% in 2000, as significant improvements in the Diving
and Outdoor Equipment businesses, as well as improvement in the Motors business
(due to emphasis on higher margin products, increases in volume and improved
production efficiencies) were offset by a decline in Watercraft (due to
production issues related to a 26.4% growth in Watercraft revenues).
Operating expenses, excluding strategic charges, totaled $115.7 million, or
32.6% of sales, in 2000 compared to $103.5 million, or 33.3% of sales, in 1999.
The 12% growth in operating expenses in 2000 was less than the growth rate of
sales, which contributed to the improved operating results. Nearly all items in
operating expenses declined as a percentage of sales from 1999.
The Company recognized strategic charges totaling $2.4 million in 2000 and $2.8
million in 1999. These charges resulted from severance, moving and other costs
related primarily to the closure and relocation of a manufacturing facility in
the Motors business and for severance, relocation and recruitment costs in the
North American Outdoor Equipment business.
Other Income and Expenses
Interest expense increased $0.2 million in 2000, reflecting higher working
capital levels primarily from accounts receivable and inventory, as well as
higher interest rates.
Results from Continuing Operations
The Company recognized income from continuing operations of $8.4 million in
2000, or $1.03 per diluted share, compared to $5.9 million, or $0.72 per diluted
share, in 1999. The Company recorded income tax expense of $6.7 million in 2000,
an effective rate of 44.5%. The increased rate from 41.5% in 1999 is due to an
increase in state income tax and change in expected recoverability of state net
operating losses.
-10-
Discontinued Operations
In March 2000, the Company sold its Fishing business. As a result, operations
and related assets and liabilities of the Fishing group have been classified as
discontinued for all periods presented herein. The sale price totaled $47.3
million, including $14.1 million of accounts receivable retained by the Company
and $2.4 million of debt assumed by the buyer. The Company recorded a loss of
$24.4 million, net of tax, related to the sale of the business, taking into
account operating results from the measurement date to the date of disposal. In
addition, the Company recorded an after tax loss from operations up to the
measurement date of $0.9 million in 2000 and an after tax gain of $1.2 million
in 1999.
Net Income
The Company recognized a net loss of $17.0 million, or $2.09 per diluted share
in 2000, compared to net income of $7.0 million, or $0.87 per diluted share in
1999.
Financial Condition
The following discusses changes in the Company's liquidity and capital
resources.
Operations
The following table sets forth the Company's working capital position related to
continuing operations at the end of each of the past three years:
- --------------------------------------------------------------------------------------------------------------------
(millions) 2001 2000 1999
- --------------------------------------------------------------------------------------------------------------------
Current assets (1) $ 133.2 $ 144.2 $ 129.6
Current liabilities (2) 36.6 46.9 45.1
- --------------------------------------------------------------------------------------------------------------------
Working capital $ 96.6 $ 97.3 $ 84.5
- --------------------------------------------------------------------------------------------------------------------
Current ratio 3.6:1 3.1:1 2.9:1
- --------------------------------------------------------------------------------------------------------------------
(1) Excludes net assets of discontinued operations.
(2) Excludes short-term debt and current maturities of long-term debt.
Cash flows provided by operations totaled $15.5 million in 2001, $9.8 million in
2000 and $24.8 million in 1999. The Company's profitability and decreases in
accounts receivable of $6.8 million, contributed to the positive cash flows in
2001. Decreases in accounts payable and other accrued liabilities of $11.4
million reduced the overall positive cash flows provided by operations in 2001.
Profitability and increases in accounts payable and other accrued liabilities of
$3.9 million, contributed to the positive cash flows in 2000 and 1999. Growth in
accounts receivable and inventories of $10.7 million and $8.4 million,
respectively, reduced the overall positive cash flows provided by operations in
2000. Accounts receivable growth of $3.5 million reduced the overall positive
cash flows provided by operations in 1999.
Depreciation and amortization charges were $13.5 million in 2001, $12.5 million
in 2000 and $12.6 million in 1999. Amortization of intangible assets from the
Company's acquisitions and increased depreciation from capital spending
accounted for the increase from 2000 to 2001. The Company recorded a charge for
impairment of goodwill of $2.5 million in 2001.
Investing Activities
Cash flows provided by (used for) investing activities were ($9.6) million,
$20.0 million and ($26.1) million in 2001, 2000 and 1999, respectively.
Expenditures for property, plant and equipment were ($9.8) million in 2001,
($14.1) million in 2000 and ($13.0) million in 1999. The Company's recurring
investments are primarily related to tooling for new products, facilities and
information systems improvements. In 2002, capital expenditures are anticipated
not to exceed 2001 levels. These expenditures are expected to be funded by
working capital or existing credit facilities.
-11-
The Company received $33.1 million in proceeds from the sale of their Fishing
business in 2000, which contributed to the cash flows provided by investing
activities for that year. These proceeds were used to reduce both short-term and
long-term debt. The Company paid, net of cash acquired, $0.6 million for two
small businesses acquired in 2001, $0.9 million for one business acquired in
2000 and $13.6 million for three businesses acquired in 1999. In November 2001,
subsequent to the end of the 2001 fiscal year, the Company completed the sale
and leaseback of their headquarters facility in Sturtevant, Wisconsin.
Approximately $5.0 million of additional cash flow was provided by this
transaction.
Financing Activities
The following table sets forth the Company's debt and capital structure at the
end of the past three years:
- --------------------------------------------------------------------------------------------------------
(millions) 2001 2000 1999
- --------------------------------------------------------------------------------------------------------
Current debt $ 13.0 $ 59.5 $ 49.4
Short-term debt to be refinanced 50.0 -- --
Long-term debt 34.5 45.8 72.7
- --------------------------------------------------------------------------------------------------------
Total debt 97.5 105.3 122.1
Shareholders' equity 105.8 100.8 127.2
- --------------------------------------------------------------------------------------------------------
Total capitalization $ 203.3 $ 206.1 $ 249.3
- --------------------------------------------------------------------------------------------------------
Total debt to total capitalization 48.0% 51.1% 49.0%
- --------------------------------------------------------------------------------------------------------
Cash flows used for financing activities totaled $7.9 million in 2001, $12.5
million in 2000 and $0.8 million in 1999. Payments on long-term debt were $6.8
million, $22.0 million and $7.7 million, in 2001, 2000 and 1999, respectively.
Included in 2000 was $15.1 million in payments from the proceeds of the sales of
the Fishing business.
In December 2001, subsequent to the end of the 2001 fiscal year, the Company
consummated a private placement of long-term debt totaling $50.0 million. As a
result of this financing, short-term debt to be repaid totaling $50.0 million at
September 28, 2001 was classified as long-term. At September 28, 2001, the
Company had available unused credit facilities in excess of $33.8 million, which
is believed to be adequate for its needs.
Market Risk Management
The Company is exposed to market risk stemming from changes in foreign exchange
rates, interest rates and, to a lesser extent, commodity prices. Changes in
these factors could cause fluctuations in earnings and cash flows. In the normal
course of business, exposure to certain of these market risks is managed by
entering into hedging transactions authorized under Company policies that place
controls on these activities. Hedging transactions involve the use of a variety
of derivative financial instruments. Derivatives are used only where there is an
underlying exposure: not for trading or speculative purposes.
Foreign Operations
The Company has significant foreign operations, for which the functional
currencies are denominated primarily in Swiss and French francs, German marks,
Italian lire, Japanese yen and Canadian dollars. As the values of the currencies
of the foreign countries in which the Company has operations increase or
decrease relative to the U.S. dollar, the sales, expenses, profits, assets and
liabilities of the Company's foreign operations, as reported in the Company's
Consolidated Financial Statements, increase or decrease, accordingly. The
Company mitigates a portion of the fluctuations in certain foreign currencies
through the purchase of foreign currency swaps, forward contracts and options to
hedge known commitments, primarily for purchases of inventory and other assets
denominated in foreign currencies.
-12-
Interest Rates
The Company's debt structure and interest rate risk are managed through the use
of fixed and floating rate debt. The Company's primary exposure is to United
States interest rates. The Company also periodically enters into interest rate
swaps, caps or collars to hedge its exposure and lower financing costs.
Commodities
Certain components used in the Company's products are exposed to commodity price
changes. The Company manages this risk through instruments such as purchase
orders and non-cancelable supply contracts. Primary commodity price exposures
are metals and packaging materials.
Sensitivity to Changes in Value
The estimates that follow are intended to measure the maximum potential fair
value or earnings the Company could lose in one year from adverse changes in
foreign exchange rates or market interest rates under normal market conditions.
The calculations are not intended to represent actual losses in fair value or
earnings that the Company expects to incur. The estimates do not consider
favorable changes in market rates. Further, since the hedging instrument (the
derivative) inversely correlates with the underlying exposure, any loss or gain
in the fair value of derivatives would be generally offset by an increase or
decrease in the fair value of the underlying exposures. The positions included
in the calculations are foreign exchange forwards, currency swaps and fixed rate
debt. Certain instruments are included in both categories of risk exposure
calculated below. The calculations do not include the underlying foreign
exchange positions that are hedged by these market risk sensitive instruments.
The table below presents the estimated maximum potential one year loss in fair
value and earnings before income taxes from a 10% movement in foreign currencies
and a 100 basis point movement in interest rate market risk sensitive
instruments outstanding at September 28, 2001:
- -------------------------------------------------------------------------------
Estimated Impact on
- -------------------------------------------------------------------------------
Earnings Before
(millions) Fair Value Income Taxes
- -------------------------------------------------------------------------------
Foreign exchange rate instruments $0.7 $0.7
Interest rate instruments 1.1 0.3
- -------------------------------------------------------------------------------
Other Factors
The Company has not been significantly impacted by inflationary pressures over
the last several years. The Company anticipates that changing costs of basic raw
materials may impact future operating costs and, accordingly, the prices of its
products. The Company is involved in continuing programs to mitigate the impact
of cost increases through changes in product design and identification of
sourcing and manufacturing efficiencies. Price increases and, in certain
situations, price decreases are implemented for individual products, when
appropriate.
Pending Accounting Changes
In June 2001, the FASB issued SFAS No. 142 Goodwill and Other Intangibles (SFAS
142). SFAS 142 addresses financial accounting and reporting for goodwill and
other intangible assets subsequent to their acquisition. Upon adoption of SFAS
142, goodwill will no longer be subject to amortization over its estimated
useful life. Rather, goodwill will be subject to at least an annual assessment
for impairment by applying a fair-value-based test. Other intangible assets will
be required to be separately recognized if the benefit of the intangible asset
can be sold, transferred, licensed, rented, or exchanged. Amortization of these
intangibles over their useful lives is required. The Company has elected to
adopt SFAS 142 as of the beginning of fiscal 2002. The Company is currently
assessing the impact of adopting SFAS 142 and believes, excluding impairments,
net income for fiscal year 2002 will be increased, since goodwill is no longer
subject to amortization, by approximately $2.5 million.
In August 2001, the FASB issued SFAS No. 144, Accounting for Impairment or
Disposal of Long-Lived Assets (SFAS 144). SFAS 144 establishes a single
accounting model for long-lived assets to be disposed of by sale and
-13-
provides additional implementation guidance for assets to be held and used and
assets to be disposed of other than by sale. There will be no financial
implication related to the adoption of SFAS 144, and the guidance will be
applied on a prospective basis. The Company is required to adopt SFAS 144 in the
first quarter of fiscal 2003.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Information with respect to this item is included in Management's Discussion and
Analysis of Financial Condition and Results of Operations under the heading
"Market Risk Management."
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
Information with respect to this item is included on pages F-1 to F-21.
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
Information with respect to this item, except for certain information on
executive officers (which appears at the end of Part I of this report) is
included in the Company's Proxy Statement for its February 19, 2002 Annual
Meeting of Shareholders, which is incorporated herein by reference, under the
headings "Election of Directors" and "Section 16(a) Beneficial Ownership
Reporting Compliance," provided, however, that the subsection entitled "Election
of Directors - Audit Committee Report" shall not be deemed to be incorporated
herein by reference.
ITEM 11. EXECUTIVE COMPENSATION
Information with respect to this item is included in the Company's Proxy
Statement for its February 19, 2002 Annual Meeting of Shareholders, which is
incorporated herein by reference, under the headings "Election of Directors -
Compensation of Directors" and "Executive Compensation;" provided, however, that
the subsection entitled "Executive Compensation - Compensation Committee Report
on Executive Compensation" shall not be deemed to be incorporated herein by
reference.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
Information with respect to this item is included in the Company's Proxy
Statement for its February 19, 2002 Annual Meeting of Shareholders, which is
incorporated herein by reference, under the heading "Stock Ownership of
Management and Others."
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Information with respect to this item is included in the Company's Proxy
Statement for its February 19, 2002 Annual Meeting of Shareholders, which is
incorporated herein by reference, under the heading "Certain Transactions."
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
The following documents are filed as a part of this Form 10-K:
-14-
Financial Statements
Included in Item 8 of Part II of this Form 10-K are the following
Reports of Independent Public Accountants
Consolidated Balance Sheets - September 28, 2001 and September 29, 2000
Consolidated Statements of Operations - Years ended September 28, 2001,
September 29, 2000 and October 1, 1999
Consolidated Statements of Shareholders' Equity - Years ended September 28,
2001, September 29, 2000 and October 1, 1999
Consolidated Statements of Cash Flows - Years ended September 28, 2001,
September 29, 2000 and October 1, 1999
Notes to Consolidated Financial Statements
Financial Statement Schedules
All schedules are omitted because they are not applicable, are not required or
equivalent information has been included in the Consolidated Financial
Statements or notes thereto.
Exhibits
See Exhibit Index.
Reports on Form 8-K
No reports on Form 8-K were filed during the three months ended September 28,
2001.
-15-
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the Registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized, in the Town of Mount
Pleasant and State of Wisconsin, on the 13th day of December 2001.
JOHNSON OUTDOORS INC.
(Registrant)
By /s/ Helen P. Johnson-Leipold
-------------------------------------
Helen P. Johnson-Leipold
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this report
has been signed by the following persons in the capacities indicated on the 13th
day of December 2001.
/s/ Helen P. Johnson-Leipold Chairman and Chief Executive Officer
- --------------------------------- and Director
(Helen P. Johnson-Leipold) (Principal Executive Officer)
/s/ Thomas F. Pyle, Jr. Vice Chairman of the Board
- --------------------------------- and Director
(Thomas F. Pyle, Jr.)
/s/ Samuel C. Johnson Director
- ---------------------------------
(Samuel C. Johnson)
/s/ Gregory E. Lawton Director
- ---------------------------------
(Gregory E. Lawton)
/s/ Glenn N. Rupp Director
- ---------------------------------
(Glenn N. Rupp)
/s/ Terry E. London Director
- ---------------------------------
(Terry E. London)
- ---------------------------------
(John M. Fahey, Jr.) Director
/s/ Paul A. Lehmann Vice President and Chief Financial Officer
- --------------------------------- (Principal Financial and Accounting Officer)
(Paul A. Lehmann)
-16-
EXHIBIT INDEX
Exhibit Title Page No.
- --------------------------------------------------------------------------------
3.1 Articles of Incorporation of the Company as amended *
through February 17, 2000. (Filed as Exhibit 3.1(a) to the
Company's Form 10-Q for the quarter ended March 31, 2000 and
incorporated herein by reference.)
3.2 Bylaws of the Company as amended through March 22, 2000. *
(Filed as Exhibit 3.2(a) to the Company's Form 10-Q for the
quarter ended March 31, 2000 and incorporated herein by
reference.)
4.1 Note Agreement dated October 1, 1995. (Filed as Exhibit 4.1 *
to the Company's Form 10-Q for the quarter ended December 29,
1995 and incorporated herein by reference.)
4.2 First Amendment dated October 31, 1996 to Note Agreement *
dated October 1, 1995. (Filed as Exhibit 4.3 to the Company's
Form 10-Q for the quarter ended December 27, 1996 and
incorporated herein by reference.)
4.3 Second Amendment dated September 30, 1997 to Note Agreement *
dated October 1, 1995. (Filed as Exhibit 4.8 to the Company's
Form 10-K for the year ended October 3, 1997 and incorporated
herein by reference.)
4.4 Third Amendment dated October 3, 1997 to Note Agreement *
dated October 1, 1995. (Filed as Exhibit 4.9 to the Company's
Form 10-K for the year ended October 3, 1997 and incorporated
herein by reference.)
4.5 Fourth Amendment dated January 10, 2000 to Note Agreement *
dated October 1, 1995. (Filed as Exhibit 4.9 to the Company's
Form 10-Q for the quarter ended March 31, 2000 and incorporated
herein by reference.)
4.6 Fifth Amendment dated December 13, 2001 to Note Agreement
dated October 1, 1995.
4.7 Note Agreement dated as of September 15, 1997. (Filed as *
Exhibit 4.15 to the Company's Form 10-K for the year ended
October 3, 1997 and incorporated herein by reference.)
4.8 First Amendment dated January 10, 2000 to Note Agreement *
dated September 15, 1997. (Filed as Exhibit 4.10 to the
Company's Form 10-Q for the quarter ended March 31, 2000
and incorporated herein by reference.)
4.9 Second Amendment dated December 13, 2001 to Note
Agreement dated September 15, 1997.
4.10 3-Year Revolving Credit Agreement dated as of August 31, 2001.
4.11 Amendment No. 1 to 3-Year Revolving Credit Agreement
dated as of December 18, 2001.
4.12 Note Agreement dated as of December 13, 2001.
9 Johnson Outdoors Inc. Class B common stock Voting Trust *
Agreement, dated December 30, 1993 (Filed as Exhibit 9 to
the Company's Form 10-Q for the quarter ended December 31,
1993 and incorporated herein by reference.)
10.1 Stock Purchase Agreement, dated as of January 12, 2000, by *
and between Johnson Outdoors Inc. and Berkley Inc. (Filed as
Exhibit 2.1 to the Company's Form 8-K dated March 31, 2000
and incorporated herein by reference.)
10.2 Amendment to Stock Purchase Agreement, dated as of *
February 28, 2000, by and between Johnson Outdoors
Inc. and Berkley Inc. (Filed as Exhibit 2.2 to the
Company's Form 8-K dated March 31, 2000 and
incorporated herein by reference.)
10.3 Johnson Outdoors Inc. Amended and Restated 1986 Stock *
Option Plan. (Filed as Exhibit 10 to the Company's
Form 10-Q for the quarter ended July 2, 1993 and
incorporated herein by reference.)
-17-
EXHIBIT INDEX
Exhibit Title Page No.
- --------------------------------------------------------------------------------
10.4 Registration Rights Agreement regarding Johnson Outdoors *
Inc. common stock issued to the Johnson family prior to the
acquisition of Johnson Diversified, Inc. (Filed as Exhibit
10.6 to the Company's Form S-1 Registration Statement No.
33-16998 and incorporated herein by reference.)
10.5 Registration Rights Agreement regarding Johnson Outdoors *
Inc. Class A common stock held by Mr. Samuel C. Johnson.
(Filed as Exhibit 28 to the Company's Form 10-Q for the
quarter ended March 29, 1991 and incorporated herein by
reference.)
10.6+ Form of Restricted Stock Agreement. (Filed as Exhibit *
10.8 to the Company's Form S-1 Registration Statement
No. 33-23299 and incorporated herein by reference.)
10.7+ Form of Supplemental Retirement Agreement of Johnson *
Diversified, Inc. (Filed as Exhibit 10.9 to the
Company's Form S-1 Registration Statement No. 33-16998
and incorporated herein by reference.)
10.8+ Johnson Outdoors Retirement and Savings Plan. (Filed as *
Exhibit 10.9 to the Company's Form 10-K for the year ended
September 29, 1989 and incorporated herein by reference.)
10.9+ Form of Agreement of Indemnity and Exoneration with *
Directors and Officers. (Filed as Exhibit 10.11 to the
Company's Form S-1 Registration Statement No. 33-16998
and incorporated herein by reference.)
10.10 Consulting and administrative agreements with S. C. *
Johnson & Son, Inc. (Filed as Exhibit 10.12 to the
Company's Form S-1 Registration Statement No. 33-16998
and incorporated herein by reference.)
10.11+ Johnson Outdoors Inc. 1994 Long-Term Stock Incentive *
Plan. (Filed as Exhibit 4 to the Company's Form S-8
Registration Statement No. 333-88091 and incorporated
herein by reference.)
10.12+ Johnson Outdoors Inc. 1994 Non-Employee Director Stock *
Ownership Plan. (Filed as Exhibit 4 to the Company's
Form S-8 Registration Statement No. 333-88089 and
incorporated herein by reference.)
10.13+ Johnson Outdoors Economic Value Added Bonus Plan *
(Filed as Exhibit 10.15 to the Company's Form 10-K
for the year ended October 3, 1997 and incorporated
herein by reference.)
10.14+ Johnson Outdoors Inc. 2000 Long-Term Stock Incentive *
Plan. (Filed as Exhibit 10.16 to the Company's Form
10-Q for the quarter ended March 31, 2000 and
incorporated herein by reference.)
11. Statement regarding computation of per share earnings. (Note *
15 to the Consolidated Financial Statements of the Company's
2001 Form 10-K is incorporated herein by reference.)
21. Subsidiaries of the Company as of September 28, 2001.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of KPMG LLP
99. Definitive Proxy Statement for the 2002 Annual Meeting *
of Shareholders. Except to the extent specifically
incorporated herein by reference, the Proxy Statement for
the 2002 Annual Meeting of Shareholders shall not be deemed
to be filed with the Securities and Exchange Commission as
part of this Form 10-K. The Proxy Statement for the 2002
Annual Meeting of Shareholders will be filed with the
Securities and Exchange Commission under regulation 14A
within 120 days after the end of the Company's fiscal year.
- -----------------
* Incorporated herein by reference.
+ A management contract or compensatory plan or arrangement.
-18-
CONSOLIDATED FINANCIAL STATEMENTS
Table of Contents Page
- ------------------------------------------------------------------------ ------
Report of Management F-1
Reports of Independent Public Accountants F-1
Consolidated Balance Sheets F-3
Consolidated Statements of Operations F-4
Consolidated Statements of Shareholders' Equity F-5
Consolidated Statements of Cash Flows F-6
Notes to Consolidated Financial Statements F-7
REPORT OF MANAGEMENT
The management of Johnson Outdoors Inc. is responsible for the preparation and
integrity of all financial statements and other information contained in this
Form 10-K. We rely on a system of internal financial controls to meet the
responsibility of providing accurate financial statements. The system provides
reasonable assurances that assets are safeguarded, that transactions are
executed in accordance with management's authorization and that the financial
statements are prepared on a worldwide basis in accordance with accounting
principles generally accepted in the United States of America.
The financial statements for each of the years covered in this Form 10-K have
been audited by independent public accountants, who have provided an independent
assessment as to the fairness of the financial statements, after obtaining an
understanding of the Company's systems and procedures and performing such other
tests as deemed necessary.
The Audit Committee of the Board of Directors, which is composed solely of
directors who are not officers of the Company, meets with management and the
independent public accountants to review the results of their work and to
satisfy itself that their respective responsibilities are being properly
discharged. The independent public accountants have full and free access to the
Audit Committee and have regular discussions with the Committee regarding
appropriate auditing and financial reporting matters.
Helen P. Johnson-Leipold Paul A. Lehmann
Chairman and Chief Executive Officer Vice President and Chief Financial
Officer
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
Shareholders and Board of Directors
Johnson Outdoors Inc.:
We have audited the consolidated balance sheet of Johnson Outdoors Inc. and
subsidiaries as of September 28, 2001 and the related consolidated statements of
operations, shareholders' equity, and cash flows for the year then ended. These
consolidated financial statements are the responsibility of the Company's
management. Our responsibility is to express an opinion on these consolidated
financial statements based on our audit.
We conducted our audit in accordance with auditing standards generally accepted
in the United States of America. 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 audit provides a
reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present
fairly, in all material respects, the financial position of Johnson Outdoors
Inc. and subsidiaries as of September 28, 2001 and the results of their
operations and their cash flows for the year then ended in conformity with
accounting principles generally accepted in the United States of America.
As explained in Note 1 to the consolidated financial statements, effective
September 30, 2000, the Company changed its method of accounting for derivative
instruments.
/s/ Arthur Andersen LLP
Arthur Andersen LLP
Milwaukee, Wisconsin
November 8, 2001, except for Notes 5 and 17,
as to which the date is December 21, 2001.
F-1
INDEPENDENT AUDITORS' REPORT
Shareholders and Board of Directors
Johnson Outdoors Inc.:
We have audited the consolidated balance sheet of Johnson Outdoors Inc. and
subsidiaries as of September 29, 2000 and the related consolidated statements of
operations, shareholders' equity, and cash flows for each of the years in the
two-year period ended September 29, 2000. These consolidated financial
statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these consolidated financial
statements based on our audits.
We conducted our audits in accordance with auditing standards generally accepted
in the United States of America. 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 financial position of Johnson Outdoors
Inc. and subsidiaries as of September 29, 2000 and the results of their
operations and their cash flows for each of the years in the two-year period
ended September 29, 2000, in conformity with accounting principles generally
accepted in the United States of America.
/s/ KPMG LLP
KPMG LLP
Milwaukee, Wisconsin
November 6, 2000
F-2
CONSOLIDATED BALANCE SHEETS
- --------------------------------------------------------------------------------------------------------------------
September 28 September 29
(thousands, except share data) 2001 2000
- --------------------------------------------------------------------------------------------------------------------
ASSETS
Current assets:
Cash and temporary cash investments $ 16,069 $ 17,363
Accounts receivable less allowance for doubtful
accounts of $3,739 and $3,895, respectively 45,585 54,825
Inventories 61,700 62,708
Deferred income taxes 5,269 4,613
Other current assets 4,557 4,685
- --------------------------------------------------------------------------------------------------------------------
Total current assets 133,180 144,194
Property plant and equipment, net 35,879 37,369
Deferred income taxes 19,577 17,311
Intangible assets, net 55,288 57,866
Other assets 989 1,231
- --------------------------------------------------------------------------------------------------------------------
Total assets $ 244,913 $ 257,971
====================================================================================================================
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Short-term debt and current maturities of long-term debt $ 12,985 $ 59,462
Accounts payable 12,157 12,928
Accrued liabilities:
Salaries and wages 5,968 7,421
Income taxes 1,206 140
Other 17,237 26,452
- --------------------------------------------------------------------------------------------------------------------
Total current liabilities 49,553 106,403
Long-term debt, less current maturities 84,550 45,857
Other liabilities 5,031 4,879
- --------------------------------------------------------------------------------------------------------------------
Total liabilities 139,134 157,139
- --------------------------------------------------------------------------------------------------------------------
Shareholders' equity:
Preferred stock: none issued -- --
Common stock:
Class A shares issued:
September 28, 2001, 6,946,012;
September 29, 2000, 6,924,630 347 346
Class B shares issued (convertible into Class A shares):
September 28, 2001, 1,222,729;
September 29, 2000, 1,222,729 61 61
Capital in excess of par value 44,411 44,291
Retained earnings 80,162 74,797
Contingent compensation (44) (77)
Accumulated other comprehensive loss - cumulative translation
adjustment (19,158) (18,586)
- --------------------------------------------------------------------------------------------------------------------
Total shareholders' equity 105,779 100,832
- --------------------------------------------------------------------------------------------------------------------
Total liabilities and shareholders' equity $ 244,913 $ 257,971
====================================================================================================================
The accompanying notes are an integral part of the Consolidated Financial
Statements.
F-3
CONSOLIDATED STATEMENTS OF OPERATIONS
- --------------------------------------------------------------------------------------------------------------------
Year Ended
- --------------------------------------------------------------------------------------------------------------------
September 28 September 29 October 1
(thousands, except per share data) 2001 2000 1999
- --------------------------------------------------------------------------------------------------------------------
Net sales $ 345,637 $ 354,889 $ 310,198
Cost of sales 208,934 212,076 184,424
- --------------------------------------------------------------------------------------------------------------------
Gross profit 136,703 142,813 125,774
- --------------------------------------------------------------------------------------------------------------------
Operating expenses:
Marketing and selling 76,114 73,685 64,930
Administrative management, finance and information
systems 29,138 28,442 26,372
Research and development 7,565 7,854 6,878
Amortization of acquisition costs 5,288 2,951 2,912
Profit sharing 1,432 2,793 2,396
Strategic charges 1,448 2,369 2,773
- --------------------------------------------------------------------------------------------------------------------
Total operating expenses 120,985 118,094 106,261
- --------------------------------------------------------------------------------------------------------------------
Operating profit 15,718 24,719 19,513
Interest income (548) (421) (294)
Interest expense 9,085 9,799 9,565
Other expense, net 1,091 261 223
- --------------------------------------------------------------------------------------------------------------------
Income from continuing operations before income taxes and before cumulative
effect of change in accounting
principle 6,090 15,080 10,019
Income tax expense 2,480 6,705 4,158
- --------------------------------------------------------------------------------------------------------------------
Income from continuing operations before cumulative
effect of change in accounting principle 3,610 8,375 5,861
Income (loss) from discontinued operations, net of income
tax expense (benefit) of $(563), and $771 for 2000
and 1999, respectively. -- (940) 1,161
Loss on disposal of discontinued operations, net of
income tax benefit of $1,840. -- (24,418) --
Effect of change in accounting principle, net of income
tax expense of $845 1,755 -- --
- --------------------------------------------------------------------------------------------------------------------
Net income (loss) $ 5,365 $ (16,983) $ 7,022
====================================================================================================================
Basic earnings (loss) per common share:
Continuing operations $ 0.44 $ 1.03 $ 0.72
Discontinued operations -- (3.12) 0.15
Net effect of change in accounting principle 0.22 -- --
- --------------------------------------------------------------------------------------------------------------------
Net income (loss) $ 0.66 $ (2.09) $ 0.87
====================================================================================================================
Diluted earnings (loss) per common share:
Continuing operations $ 0.44 $ 1.03 $ 0.72
Discontinued operations -- (3.12) 0.15
Net effect of change in accounting principle 0.22 -- --
- --------------------------------------------------------------------------------------------------------------------
Net income (loss) $ 0.66 $ (2.09) $ 0.87
====================================================================================================================
The accompanying notes are an integral part of the Consolidated Financial
Statements.
F-4
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
- ---------------------------------------------------------------------------------------------------------------- -----------------
Accumulated
Other
Comprehensive
Capital in Loss - Cumulative
Common Excess of Retained Contingent Translation Treasury Comprehensive
(thousands) Stock Par Value Earnings Compensation Adjustment Stock Income (Loss)
- ---------------------------------------------------------------------------------------------------------------- -----------------
BALANCE AT OCTOBER 2, 1998 $406 $44,205 $85,068 $ (27) $(4,651) $ (615)
Net income -- -- 7,022 -- -- -- $ 7,022
Issuance of restricted stock -- (137) (182) -- 319 --
Issuance of stock under
employee stock purchase
plan -- -- (121) -- -- 214 --
Amortization of contingent
compensation -- -- -- 75 -- -- --
Translation adjustment -- -- -- -- (4,398) -- (4,398)
- ---------------------------------------------------------------------------------------------------------------- -----------------
BALANCE AT OCTOBER 1, 1999 406 44,205 91,832 (134) (9,049) (82) $ 2,624
=================
Net loss -- -- (16,983) -- -- -- $ (16,983)
Issuance of restricted stock -- 19 -- (19) -- -- --
Issuance of stock under
employee stock purchase
plan 1 67 (52) -- -- 82 --
Amortization of contingent
compensation -- -- -- 76 -- -- --
Translation adjustment -- -- -- -- (10,346) -- (10,346)
Translation adjustment
reclassified to net loss on
sale of Fishing business -- -- -- -- 809 -- --
- ---------------------------------------------------------------------------------------------------------------- -----------------
BALANCE AT SEPTEMBER 29, 2000 407 44,291 74,797 (77) (18,586) -- $ (27,329)
=================
Net income -- -- 5,365 -- -- -- $ 5,365
Issuance of restricted stock -- 50 -- (50) -- -- --
Issuance of stock under employee
stock purchase plan 1 70 -- -- -- -- --
Amortization of contingent
compensation -- -- -- 83 -- -- --
Translation adjustment -- -- -- -- 2,402 -- 2,402
Translation adjustment
reclassified to cumulative
effect of change in accounting -- -- -- -- (2,974) -- --
principle
- ------------------------------------------------------------------------------------------------------------------------------------
BALANCE AT SEPTEMBER 28, 2001 $408 $44,411 $80,162 $(44) $(19,158) $-- $ 7,767
====================================================================================================================================
The accompanying notes are an integral part of the Consolidated Financial
Statements.
F-5
CONSOLIDATED STATEMENTS OF CASH FLOWS
- ------------------------------------------------------------------------------------------------------------------
Year Ended
- ------------------------------------------------------------------------------------------------------------------
September 28 September 29 October 1
(thousands) 2001 2000 1999
- ------------------------------------------------------------------------------------------------------------------
CASH PROVIDED BY OPERATIONS
Net income (loss) $ 5,365 $ (16,983) $ 7,022
Less income (loss) from discontinued operations -- (25,358) 1,161
Less income from cumulative effect of change in
accounting principle 1,755 -- --
- ------------------------------------------------------------------------------------------------------------------
Income from continuing operations 3,610 8,375 5,861
Adjustments to reconcile income from continuing operations
to net cash provided by operating activities
of continuing operations:
Depreciation and amortization 13,516 12,523 12,597
Provision for doubtful accounts receivable 2,460 1,812 2,162
Provision for inventory reserves 1,529 853 801
Deferred income taxes (2,922) (374) (48)
Impairment of goodwill 2,526 -- --
Change in assets and liabilities, net of effect of
businesses acquired or sold:
Accounts receivable 6,780 (10,728) (3,466)
Inventories 124 (8,358) 1,012
Accounts payable and accrued liabilities (11,391) 3,910 5,975
Other, net (760) 1,738 (106)
- ------------------------------------------------------------------------------------------------------------------
15,472 9,751 24,788
- ------------------------------------------------------------------------------------------------------------------
CASH PROVIDED BY (USED FOR) INVESTING ACTIVITIES
Proceeds from sale of business, net of cash -- 33,126 --
Payments for purchase of businesses, net of cash acquired (573) (864) (13,584)
Net additions to property, plant and equipment (9,765) (14,075) (13,035)
Sales of property, plant and equipment 730 1,838 501
- ------------------------------------------------------------------------------------------------------------------
(9,608) 20,025 (26,118)
- ------------------------------------------------------------------------------------------------------------------
CASH USED FOR FINANCING ACTIVITIES
Principal payments on senior notes and other long-term debt (6,784) (21,969) (7,705)
Net change in short-term debt (1,143) 9,351 6,764
Common stock transactions 71 97 94
- ------------------------------------------------------------------------------------------------------------------
(7,856) (12,521) (847)
- ------------------------------------------------------------------------------------------------------------------
Effect of foreign currency fluctuations on cash 698 (1,790) (541)
Net cash provided by (used for) discontinued operations -- (8,076) 2,361
- ------------------------------------------------------------------------------------------------------------------
Increase (decrease) in cash and temporary cash investments (1,294) 7,389 (357)
CASH AND TEMPORARY CASH INVESTMENTS
Beginning of year 17,363 9,974 10,331
- ------------------------------------------------------------------------------------------------------------------
End of year $ 16,069 $ 17,363 $ 9,974
==================================================================================================================
The accompanying notes are an integral part of the Consolidated Financial
Statements.
F-6
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Johnson Outdoors Inc. is an integrated, global outdoor recreation products
company engaged in the design, manufacture and marketing of brand name outdoor
equipment, diving, watercraft and motors products.
All monetary amounts, other than share and per share amounts, are stated in
thousands and are from continuing operations.
1 SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Principles of Consolidation
The Consolidated Financial Statements include the accounts of Johnson Outdoors
Inc. and all majority owned subsidiaries (the Company) and are stated in
conformity with accounting principles generally accepted in the United States of
America. Significant intercompany accounts and transactions have been eliminated
in consolidation.
The preparation of financial statements requires management to make estimates
and assumptions that impact the reported amounts of assets, liabilities and
operating results and the disclosure of commitments and contingent liabilities.
Actual results could differ significantly from those estimates. For the Company,
significant estimates include the allowance for doubtful accounts receivable,
reserves for inventory valuation, reserves for sales returns and the valuation
allowance for deferred tax assets.
The Company's fiscal year ends on the Friday nearest September 30. The fiscal
years ended September 28, 2001 (hereinafter 2001) and September 29, 2000
(hereinafter 2000) and October 1, 1999 (hereinafter 1999) each comprise 52
weeks.
Cash and Temporary Cash Investments
For purposes of the consolidated statements of cash flows, the Company considers
all short-term investments in interest-bearing bank accounts, securities and
other instruments with an original maturity of three months or less to be
equivalent to cash.
The Company maintains cash in bank accounts in excess of insured limits. The
Company has not experienced any losses as a result of this practice and does not
believe that significant credit risk exists.
Inventories
Inventories are stated at the lower of cost (determined using the first-in,
first-out method) or market.
Inventories attributable to continuing operations at the end of the respective
years consist of the following:
- --------------------------------------------------------------------------------
2001 2000
- --------------------------------------------------------------------------------
Raw materials $ 19,892 $ 23,122
Work in process 2,592 2,238
Finished goods 42,620 40,297
- --------------------------------------------------------------------------------
65,104 65,657
Less reserves 3,404 2,949
- --------------------------------------------------------------------------------
$ 61,700 $ 62,708
- --------------------------------------------------------------------------------
Property, Plant and Equipment
Property, plant and equipment are stated at cost less accumulated depreciation.
Depreciation of plant and equipment is determined by straight-line and
accelerated methods over estimated useful lives, which range from 3 to 30 years.
Upon retirement or disposition, cost and the related accumulated depreciation
are removed from the accounts and any resulting gain or loss is recognized in
operating results.
F-7
Property, plant and equipment attributable to continuing operations at the end
of the respective years consist of the following:
- --------------------------------------------------------------------------------
2001 2000
- --------------------------------------------------------------------------------
Property and improvements $ 1,423 $ 1,423
Buildings and improvements 21,861 19,303
Furniture, fixtures and equipment 86,221 82,994
- --------------------------------------------------------------------------------
109,505 103,720
Less accumulated depreciation 73,626 66,351
- --------------------------------------------------------------------------------
$ 35,879 $ 37,369
- --------------------------------------------------------------------------------
Intangible Assets
Intangible assets are stated at cost less accumulated amortization. Amortization
is computed using the straight-line method with periods ranging from 15 to 40
years for goodwill and 3 to 16 years for patents, trademarks and other
intangible assets.
Intangible assets attributable to continuing operations at the end of the
respective years consist of the following:
- --------------------------------------------------------------------------------
2001 2000
- --------------------------------------------------------------------------------
Goodwill $ 68,830 $ 69,546
Patents, trademarks and other 4,275 4,122
- --------------------------------------------------------------------------------
73,105 73,668
Less accumulated amortization 17,817 15,802
- --------------------------------------------------------------------------------
$ 55,288 $ 57,866
- --------------------------------------------------------------------------------
Impairment of Long-Lived Assets
The Company annually assesses the recoverability of property, plant and
equipment and intangible assets, primarily by determining whether the
depreciation and amortization of the balance over its remaining life can be
recovered through projected undiscounted future operating cash flows of the
related businesses. The amount of impairment, if any, is measured primarily
based on the deficiency of projected discounted future operating cash flows
relative to the value of the assets, using a discount rate reflecting the
Company's cost of capital, which currently approximates 10%. In 2001, the
Company recognized a $2.5 million write-down for impaired goodwill related to
the Airguide brand in the Motors business.
Income Taxes
The Company provides for income taxes currently payable, and deferred income
taxes resulting from temporary differences between financial statement and
taxable income, using the asset and liability method.
In assessing the realizability of deferred tax assets, the Company considers
whether it is more likely than not that some portion, or all of the deferred tax
assets, will not be realized. The ultimate realization of deferred tax assets is
dependent upon the generation of future taxable income during the years in which
those temporary differences become deductible. The Company considers the
scheduled reversal of deferred tax liabilities, projected future taxable income
and tax planning strategies in making this assessment.
Federal and state income taxes are provided on foreign subsidiary income
distributed to, or taxable in, the United States during the year. At September
28, 2001, net undistributed earnings of foreign subsidiaries total approximately
$63,200. A substantial portion of these unremitted earnings have been
permanently invested abroad and no provision for federal or state taxes is made
on these amounts. With respect to that portion of foreign earnings which may be
returned to the United States, provision is made for taxes if the amounts are
significant.
The Company's United States entities file a consolidated federal income tax
return.
F-8
Employee Benefits
The Company and certain of its subsidiaries have various retirement and profit
sharing plans. Pension obligations, which are generally based on compensation
and years of service, are funded by payments to pension fund trustees. The
Company's policy is generally to fund the minimum amount required under the
Employee Retirement Income Security Act of 1974 for plans subject thereto.
Profit sharing and other retirement costs are funded at least annually.
Foreign Operations and Derivative Financial Instruments
Assets and liabilities of foreign operations are translated into U.S. dollars at
the rate of exchange existing at the end of the year. Results of operations are
translated at monthly average exchange rates. Gains and losses resulting from
the translation of foreign currency financial statements are classified as
accumulated other comprehensive income (loss), a separate component of
shareholders' equity.
The Company operates internationally, which gives rise to exposure to market
risk from movements in foreign currency exchange rates. To minimize the effect
of fluctuating foreign currencies on its income, the Company enters into foreign
currency forward contracts. The Company primarily hedges assets, inventory
purchases and loans denominated in foreign currencies. The Company does not
enter into foreign exchange contracts for trading purposes. Gains and losses on
unhedged exposures are recorded in operating results.
The contracts are used to hedge known foreign currency transactions on a
continuing basis for periods consistent with the Company's exposures. Beginning
September 30, 2000 upon the adoption of SFAS 133, Accounting for Derivative
Instruments and Hedging Activities, as amended by SFAS 137, Accounting for
Derivative Instruments and Hedging Activities - Deferral of the Effective Date
of SFAS Statement No. 133 and SFAS 138, Accounting for Certain Derivative
Instruments and Certain Hedging Activities, the effective portion of the gain or
loss on the foreign currency forward contact is reported as a component of other
comprehensive income and reclassified into earnings in the same period during
which the hedged transaction affects earnings. The remaining gain or loss on the
futures contact, if any, is recognized in current earnings during the period of
changes. Adoption of these new accounting standards resulted in a cumulative
after-tax gain of approximately $1.8 million and an accumulated other compre-
hensive loss of approximately $3.0 million in the first quarter of fiscal 2001.
At September 28, 2001, foreign currency contracts with contractual amounts
totaling approximately $6,500 are in place, hedging existing and anticipated
transactions. The contracts, which are executed with major financial institu-
tions, generally mature within one year with no credit loss anticipated for
failure of the counterparties to perform. At September 28, 2001, the fair value
of these instruments is approximately $200 greater than the contractual amount.
Revenue Recognition
Revenue from sales is recognized when all substantial risk of ownership trans-
fers to the customer, which is generally upon shipment of products. Estimated
costs of returns and allowances are accrued when revenue is recognized.
Advertising
The Company expenses substantially all costs related to production of
advertising the first time the advertising takes place. Cooperative promotional
arrangements are accrued in relation to sales.
Advertising expense attributable to continuing operations in 2001, 2000 and 1999
totaled $18,282, $18,435 and $16,258, respectively. Capitalized costs
attributable to continuing operations at September 28, 2001 and September 29,
2000 totaled $1,653 and $1,360, respectively, and primarily include catalogs and
costs of advertising which has not yet run for the first time.
Shipping and Handling Costs
In July 2000, the Emerging Issues Task Force (EITF) reached a consensus on Issue
00-10, Accounting for Shipping and Handling Fees and Costs. EITF 00-10 requires
companies to classify as revenues shipping and handling fees billed to
customers. Previously, shipping revenues and shipping expenses were included in
marketing and selling expenses. All periods presented in the Consolidated
Statements of Operations have been reclassified to conform to
F-9
the current year presentation. The adoption of this statement increased net
sales and marketing and selling expenses by $7,114, $7,601 and $5,104 for 2001,
2000 and 1999, respectively.
Shipping and handling expense attributable to continuing operations included in
marketing and selling expense was $12,821, $13,007 and $9,525 for 2001, 2000 and
1999, respectively.
Research and Development
Research and development costs are expensed as incurred.
Stock-Based Compensation
The Company accounts for stock options using the intrinsic value based method.
Accordingly, compensation cost is generally recognized only for stock options
issued with an exercise price lower than the market price on the date of grant.
The Company's practice is to issue options with an exercise price equal to the
fair market value on the date of the grant. The fair value of restricted shares
awarded in excess of the amount paid for such shares is recognized as contingent
compensation and is amortized over 1 to 3 years from the date of award, the
period after which all restrictions generally lapse.
Pending Accounting Changes
In June 2001, the FASB issued SFAS No. 142 Goodwill and Other Intangibles (SFAS
142). SFAS 142 addresses financial accounting and reporting for goodwill and
other intangible assets subsequent to their acquisition. Upon adoption of SFAS
142, goodwill will no longer be subject to amortization over its estimated
useful life. Rather, goodwill will be subject to at least an annual assessment
for impairment by applying a fair-value-based test. Other intangible assets will
be required to be separately recognized if the benefit of the intangible asset
can be sold, transferred, licensed, rented, or exchanged. Amortization of these
intangibles over their useful lives is required. The Company has elected to
adopt SFAS 142 as of the beginning of fiscal 2002. The Company is currently
assessing the impact of adopting SFAS 142 and believes, excluding impairments,
net income for fiscal year 2002 will be increased, since goodwill is no longer
subject to amortization, by approximately $2,500.
In August 2001, the FASB issued SFAS No. 144, Accounting for Impairment or
Disposal of Long-Lived Assets (SFAS 144). SFAS 144 establishes a single
accounting model for long-lived assets to be disposed of by sale and provides
additional implementation guidance for assets to be held and used and assets to
be disposed of other than by sale. There will be no financial implication
related to the adoption of SFAS 144, and the guidance will be applied on a
prospective basis. The company is required to adopt SFAS 144 in the first
quarter of fiscal 2003.
Reclassifications
Certain reclassifications have been made to prior years' amounts to conform with
the current year presentation.
2 STRATEGIC CHARGES
In 2001, 2000 and 1999, the Company recorded strategic charges totaling $1,448,
$2,369 and $2,773, respectively.
In 2001 strategic charges included severance, moving and other exit costs
related primarily to the closure and relocation of manufacturing facilities in
the Watercraft business. Severance costs included in the strategic charges
totaled $660 and approximately 88 employees were impacted by these actions.
Unexpended funds at year end related to these actions were approximately $1,020.
In 2000 strategic charges included severance, moving and other exit costs
related primarily to the closure and relocation of a manufacturing facility in
the Motors business. Severance costs included in the strategic charges totaled
$1,469 and approximately 95 employees were impacted by these actions. There are
no unexpended funds related to this action as of the end of 2001.
In 1999, a portion of the charges included severance, moving and recruiting
costs related to the relocation of certain sales and marketing functions of the
Company's Outdoor Equipment business. The balance of the charges were related to
the integration of acquired businesses. Severance costs included in these
charges totaled $1,101 and
F-10
approximately 30 employees were impacted. There are no unexpended funds related
to this action as of the end of 2001.
3 ACQUISITIONS
During 2001, the Company completed the acquisition of two small businesses which
manufacture paddles and marine accessories. The initial purchase price,
including direct expenses, for the acquisitions was approximately $600, of which
approximately $420 was recorded as intangible assets and is being amortized over
25 years.
During 2000, the Company completed the acquisition of the common stock of
Pacific Kayak Ltd., a manufacturer of sit-on-top and sea touring kayaks located
in Auckland, New Zealand. The initial purchase price, including direct expenses,
for the acquisition was approximately $962, of which approximately $584 was
recorded as intangible assets and is being amortized over 25 years. An
additional payment of approximately $70 was earned in 2001 based upon
achievement of specified levels of sales of the acquired business.
During 1999, the Company completed the acquisition of the common stock of
Extrasport, Inc., a privately held manufacturer and marketer of personal
flotation devices. The initial purchase price, including direct expenses, for
the acquisition was approximately $3,300, of which approximately $2,500 was
recorded as intangible assets and is being amortized over 25 years. Additional
payments of approximately $150 for both 2000 and 2001 were earned based upon
achievement of specified levels of sales. An additional payment in 2002 is
dependent upon achievement of specified levels of sales of the acquired
business.
Also during 1999, the Company completed the acquisition of substantially all of
the assets and the assumption of certain liabilities of Escape Sailboat Company
LLC, a privately held manufacturer and marketer of recreational sailboats. The
initial purchase price, including direct expenses, for the acquisition was
approximately $4,800, of which approximately $3,100 was recorded as intangible
assets and is being amortized over 25 years.
In December 1998, the Company completed the acquisition of substantially all of
the assets and the assumption of certain liabilities of True North Paddle &
Necky Kayaks Ltd., a privately held manufacturer and marketer of Necky kayaks,
and an affiliated entity. The initial purchase price, including direct expenses,
for the acquisition was approximately $5,700, of which approximately $3,200 was
recorded as intangible assets and is being amortized over 25 years. Additional
payments of approximately $170 and $600 were earned in 2000 and 1999,
respectively. Additional payments in the years 2002 and 2003 are dependent upon
the achievement of specified levels of sales and profitability of the acquired
business.
All acquisitions were accounted for using the purchase method and, accordingly,
the Consolidated Financial Statements include the results of operations since
the respective dates of acquisition. Additional payments, if required, will
increase intangible assets.
4 Sale of Fishing Business
In March 2000, the Company sold its Fishing business. As a result, operations
and related assets and liabilities of the Fishing group have been classified as
discontinued for all periods presented herein. The sale price totaled $47,279,
including $14,056 of accounts receivable retained by the Company and $2,367 of
debt assumed by the buyer. The Company recorded a loss of $24,418, net of tax,
related to the sale of the business, taking into account operating results from
the measurement date to the date of disposal. In addition, the Company recorded
an after tax loss from operations up to the measurement date of $940 in 2000, an
after tax gain of $1,161 in 1999.
Net sales of the Fishing group were $32,667 and $59,184 for 2000 and 1999,
respectively. Interest expense of $90 and $154 that is directly attributable to
the Fishing group is allocated to discontinued operations.
F-11
5 INDEBTEDNESS
Short-term debt at the end of the respective years consists of the following:
- --------------------------------------------------------------------------------
2001 2000
- --------------------------------------------------------------------------------
Commercial paper and bank loans $ 49,643 $ 53,434
Current maturities of long-term debt 13,342 6,028
Less short-term debt to be refinanced 50,000 --
- --------------------------------------------------------------------------------
$ 12,985 $ 59,462
- --------------------------------------------------------------------------------
Short-term credit facilities provide for borrowings with interest rates set
periodically by reference to market rates. Commercial paper rates are set by
competitive bidding. The weighted average interest rate on short-term
indebtedness was 5.8% and 7.6% at September 28, 2001 and September 29, 2000,
respectively. The Company's primary facility is a $70,000 revolving credit
agreement expiring in 2004, which includes a maximum amount of $30,000 in
support of commercial paper issuance. The Company has lines of credit, both
foreign and domestic, totaling $92,500 of which $33,825 is available at
September 28, 2001. The Company also utilizes letters of credit for trade
financing purposes.
Long-term debt at the end of the respective years consists of the following:
- --------------------------------------------------------------------------------
2001 2000
- --------------------------------------------------------------------------------
1998 senior notes $ 18,800 $ 16,176
1996 senior notes 23,700 29,700
Short-term debt to be refinanced 50,000 --
Other long-term notes, maturing through
January 2002 5,392 6,009
- --------------------------------------------------------------------------------
97,892 51,885
Less current maturities 13,342 6,028
- --------------------------------------------------------------------------------
$ 84,550 $ 45,857
- --------------------------------------------------------------------------------
In December 2001, subsequent to the end of the 2001 fiscal year, the Company
issued unsecured notes totaling $50,000 with an interest rate of 7.82%. The
senior notes have annual principal payments of $10,000 beginning December 13,
2004 with a final payment due December 13, 2008. Proceeds from the issuance of
the senior notes were used to reduce outstanding indebtedness under the
Company's primary revolving credit facility. Outstanding short-term debt
totaling $50,000 at September 28, 2001 is classified as long-term in
anticipation of refinancing with the proceeds of the senior notes.
In 1998, the Company issued unsecured senior notes totaling $25,000 with an
interest rate of 7.15%. Simultaneous with the commitment of the 1998 senior
notes, the Company executed a foreign currency swap, denominating in Swiss
francs all principal and interest payments required under the 1998 senior notes.
The effective interest rate paid on the 1998 senior notes as a result of the
currency swap was 4.32%. The Company terminated the currency swap in December
2000. A portion of the proceeds from the divestiture of the Fishing business was
used to make an unscheduled principal payment of $5,335 in March 2000. The 1998
senior notes have annual principal payments of $2,000 to $7,000 beginning
October 2001 with a final payment due October 2007.
The Company financed a portion of the initial purchase price for the common
stock of Uwatec AG in 1997 with a note from the sellers. Interest on the
deferred amount is payable annually at 6%. This obligation is denominated in
Swiss francs. The outstanding balance of $5,214 is due in 2002. A corresponding
amount of the Company's primary revolving credit facility is reserved in support
of this obligation through issuance of a letter of credit.
In 1996, the Company issued unsecured senior notes totaling $30,000 with an
interest rate of 7.77% and $15,000 with an interest rate of 6.98%. A portion of
the proceeds from the divestiture of the Fishing business was used to make an
unscheduled principal payment of $9,800 in March 2000. Total annual principal
payments ranging from $5,500 to $7,500 are due beginning in October 2000 through
2006.
F-12
Aggregate scheduled maturities of long-term debt in each of the five years
ending September 2006 are as follows:
- --------------------------------------------------------------------------------
Year
- --------------------------------------------------------------------------------
2002 $13,342
2003 8,050
2004 9,500
2005 15,700
2006 13,500
Thereafter 37,800
- --------------------------------------------------------------------------------
Interest paid was $9,178, $10,471 and $9,740 for 2001, 2000 and 1999,
respectively.
Based on the borrowing rates currently available to the Company for debt with
similar terms and average maturities, the fair value of the Company's long-term
debt as of September 28, 2001 and September 29, 2000 is approximately $98,300
and $53,000, respectively. The carrying value of all other financial instruments
approximates the fair value.
Certain of the Company's loan agreements require that Samuel C. Johnson, members
of his family and related entities (hereinafter the Johnson Family) continue to
own stock having votes sufficient to elect a 51% majority of the directors. At
September 28, 2001, the Johnson Family held approximately 3,380,000 shares or
49% of the Class A common stock, approximately 1,168,000 shares or 96% of the
Class B common stock and approximately 78% of the voting power of both classes
of common stock taken as a whole. The agreements also contain restrictive
covenants regarding the Company's net worth, indebtedness, fixed charge coverage
and distribution of earnings. The Company is in compliance with the restrictive
covenants of such agreements, as amended from time to time.
6 Leases and Other Commitments
The Company leases certain operating facilities and machinery and equipment
under long-term, noncancelable operating leases. Future minimum rental
commitments under noncancelable operating leases attributable to continuing
operations having an initial term in excess of one year at September 28, 2001
are as follows:
- --------------------------------------------------------------------------------
Year
- --------------------------------------------------------------------------------
2002 $5,600
2003 3,800
2004 2,600
2005 2,200
2006 2,100
Thereafter 7,600
- --------------------------------------------------------------------------------
Rental expense attributable to continuing operations under all leases was
approximately $6,739, $6,727 and $6,438 for 2001, 2000 and 1999, respectively.
The Company makes commitments in a broad variety of areas, including capital
expenditures, contracts for services, sponsorship of broadcast media and supply
of finished products and components, all of which are in the ordinary course of
business.
F-13
7 INCOME TAXES
Income tax expense (benefit) attributable to continuing operations for the
respective years consists of the following:
- --------------------------------------------------------------------------------
2001 2000 1999
- --------------------------------------------------------------------------------
Current:
Federal $ -- $ 17 $ 34
State 101 490 683
Foreign 5,301 6,572 3,489
Deferred (2,922) (374) (48)
- --------------------------------------------------------------------------------
$ 2,480 $ 6,705 $ 4,158
- --------------------------------------------------------------------------------
The significant components of deferred tax expense (benefit) attributable to
continuing operations are as follows:
- --------------------------------------------------------------------------------------------------------------------
2001 2000 1999
- --------------------------------------------------------------------------------------------------------------------
Deferred tax expense (benefit) (exclusive of effects of
other components listed below) $ (3,185) $ (822) $ 89
Increase (decrease) in beginning of the year balance of
the valuation allowance for deferred tax assets 263 448 (137)
- --------------------------------------------------------------------------------------------------------------------
$ (2,922) $ (374) $ (48)
- --------------------------------------------------------------------------------------------------------------------
The tax effects of temporary differences that give rise to significant portions
of deferred tax assets and deferred tax liabilities attributable to continuing
operations at the end of the respective years are presented below:
- --------------------------------------------------------------------------------
2001 2000
- --------------------------------------------------------------------------------
Deferred tax assets:
Inventories $ 2,089 $ 1,966
Compensation 2,978 3,502
Foreign tax credit carryforwards 3,761 3,791
Net operating loss carryforwards 21,562 16,808
Other 5,138 5,869
- --------------------------------------------------------------------------------
Total gross deferred tax assets 35,528 31,936
Less valuation allowance 8,046 7,783
- --------------------------------------------------------------------------------
27,482 24,153
- --------------------------------------------------------------------------------
Deferred tax liabilities:
Foreign statutory reserves 1,867 1,952
Goodwill and other intangibles 769 277
- --------------------------------------------------------------------------------
Total deferred tax liabilities 2,636 2,229
- --------------------------------------------------------------------------------
Net deferred tax asset $ 24,846 $ 21,924
- --------------------------------------------------------------------------------
Deferred tax assets relating to net operating losses of discontinued operation
of $5,555 has been reflected as assets of continuing operations in 2000 as the
benefit will ultimately be realized by the continuing operations.
F-14
Following is the income (loss) from continuing operations before income taxes
for domestic and foreign operations:
- --------------------------------------------------------------------------------
2001 2000 1999
- --------------------------------------------------------------------------------
United States $ (5,719) $ (1,436) $ (1,269)
Foreign 11,809 16,516 11,288
- --------------------------------------------------------------------------------
$ 6,090 $ 15,080 $ 10,019
- --------------------------------------------------------------------------------
The significant differences between the statutory federal tax rate and the
effective income tax rates for income from continuing operations are as follows:
- --------------------------------------------------------------------------------------------------------------------
2001 2000 1999
- --------------------------------------------------------------------------------------------------------------------
Statutory U.S. federal income tax rate 34.0% 34.0% 34.0%
State income taxes, net of federal income tax benefit 0.9 3.8 0.7
Foreign rate differential 1.3 1.4 5.1
Change in beginning of year valuation allowance 4.3 3.0 --
Foreign operating losses -- 0.6 1.9
Other 0.2 1.7 (0.2)
- --------------------------------------------------------------------------------------------------------------------
40.7% 44.5% 41.5%
- --------------------------------------------------------------------------------------------------------------------
At September 28, 2001, the Company has $3,761 of foreign tax credit
carryforwards available to be offset against future U.S. tax liability. The
credits expire in 2002 through 2007 if not utilized. These carryforwards have
been fully reserved for in the valuation allowance.
At September 28, 2001, the Company has a U.S. federal operating loss
carryforward of $40,542 and various state net operating loss carryforwards.
During 2001, 2000 and 1999, foreign net operating loss carryforwards were
utilized, resulting in a reduction in income tax expense of $32, $152 and $137,
respectively. In addition, certain of the Company's foreign subsidiaries have
net operating loss carryforwards totaling $3,120. These amounts are available to
offset future taxable income over the next 14 to 20 years and are anticipated to
be utilized during this period.
Taxes paid attributable to continuing operations were $4,337, $9,935 and $6,648
for 2001, 2000 and 1999, respectively.
8 EMPLOYEE BENEFITS
Net periodic pension cost for noncontributory defined benefit pension plans
includes the following components.
- -----------------------------------------------------------------------------------------------------
2001 2000 1999
- -----------------------------------------------------------------------------------------------------
Service cost $ 343 $ 315 $ 273
Interest on projected benefit obligation 792 763 713
Less return on plan assets 631 592 558
Amortization of unrecognized:
Net loss 1 4 4
Prior service cost 26 26 26
Transition asset (80) (81) (81)
- -----------------------------------------------------------------------------------------------------
Net amount recognized $ 451 $ 435 $ 377
- -----------------------------------------------------------------------------------------------------
F-15
The following provides a reconciliation of the changes in the plans benefit
obligation and fair value of assets for 2001 and 2000 and a statement of the
funded status at the end of each year:
- ---------------------------------------------------------------------------------------------------
2001 2000
- ---------------------------------------------------------------------------------------------------
Benefit obligation:
Benefit obligation at beginning of year $ 10,332 $ 9,604
Service cost 343 315
Interest cost 792 763
Actuarial (gain) loss 1,094 259
Benefits paid (632) (609)
- ---------------------------------------------------------------------------------------------------
Benefit obligation at end of year $ 11,929 $ 10,332
- ---------------------------------------------------------------------------------------------------
Fair value of plan assets:
Fair value of plan assets at beginning of year $ 8,620 $ 8,070
Actual return on plan assets (582) 888
Company contributions 278 271
Benefits paid (632) (609)
- ---------------------------------------------------------------------------------------------------
Fair value of plan assets at end of year $ 7,684 $ 8,620
- ---------------------------------------------------------------------------------------------------
Funded status:
Funded status of the plan $ (4,245) $ (1,712)
Unrecognized net (gain) loss 2,084 80
Unrecognized prior service cost 123 148
Unrecognized transition asset (211) (291)
- ---------------------------------------------------------------------------------------------------
Net liability recognized $ (2,249) $ (1,775)
- ---------------------------------------------------------------------------------------------------
The following summarizes the components of the net liability recognized in the
consolidated balance sheets at the end of the respective years:
- --------------------------------------------------------------------------------
2001 2000
- --------------------------------------------------------------------------------
Prepaid benefit cost $ -- $ --
Accrued benefit liability (2,249) (1,775)
- --------------------------------------------------------------------------------
Net liability recognized $ (2,249) $ (1,775)
- --------------------------------------------------------------------------------
Plan assets are invested primarily in stock and bond mutual funds and insurance
contracts.
Actuarial assumptions used to determine the projected benefit obligation are as
follows:
- --------------------------------------------------------------------------------
2001 2000 1999
- --------------------------------------------------------------------------------
Discount rate 7.25% 8% 8%
Long-term rate of return 8 8 8
Average salary increase rate 5 5 5
- --------------------------------------------------------------------------------
A majority of the Company's full-time employees are covered by profit sharing
and defined contribution programs. Participating entities determine profit
sharing distributions under various performance and service based formulas.
9 PREFERRED STOCK
The Company is authorized to issue 1,000,000 shares of preferred stock in
various classes and series, of which there are none currently issued or
outstanding.
F-16
10 COMMON STOCK
Common stock at the end of the respective years were as follows:
- --------------------------------------------------------------------------------
2001 2000
- --------------------------------------------------------------------------------
Class A, $.05 par value:
Authorized 20,000,000 20,000,000
Outstanding 6,946,012 6,924,630
Class B, $.05 par value:
Authorized 3,000,000 3,000,000
Outstanding 1,222,729 1,222,729
- --------------------------------------------------------------------------------
Holders of Class A common stock are entitled to elect 25% of the members of the
Board of Directors and holders of Class B common stock are entitled to elect the
remaining directors. With respect to matters other than the election of
directors or any matters for which class voting is required by law, holders of
Class A common stock are entitled to one vote per share while holders of Class B
common stock are entitled to ten votes per share. If any dividends (other than
dividends paid in shares of the Company) are paid by the Company on its common
stock, a dividend would be paid on each share of Class A common stock equal to
110% of the amount paid on each share of Class B common stock. Each share of
Class B common stock is convertible at any time into one share of Class A common
stock. During 2001, no shares of Class B common stock were converted into Class
A common stock. During 2000 and 1999, respectively, 132 and 1,000 shares of
Class B common stock were converted into Class A common stock.
11 STOCK OWNERSHIP PLANS
The Company's current stock ownership plans provide for issuance of options to
acquire shares of Class A common stock by key executives and non-employee
directors. All stock options have been granted at a price not less than fair
market value at the date of grant and become exercisable over periods of one to
four years from the date of grant. Stock options generally have a term of 10
years. Current plans also allow for issuance of restricted stock or stock
appreciation rights in lieu of options. Grants of restricted shares are not
significant in any year presented. No stock appreciation rights have been
granted.
A summary of stock option activity related to the Company's plans is as follows:
- --------------------------------------------------------------------------------
Weighted Average
Shares Exercise Price
- --------------------------------------------------------------------------------
Outstanding at October 2, 1998 602,061 $17.43
Granted 353,000 8.53
Cancelled (176,224) 14.67
- --------------------------------------------------------------------------------
Outstanding at October 1, 1999 778,837 14.02
Granted 268,500 7.58
Cancelled (95,107) 15.23
- --------------------------------------------------------------------------------
Outstanding at September 29, 2000 952,230 $12.08
Granted 235,000 5.50
Cancelled (100,435) 17.00
- --------------------------------------------------------------------------------
Outstanding at September 28, 2001 1,086,795 $10.20
- --------------------------------------------------------------------------------
F-17
The range of options outstanding at September 28, 2001 is as follows:
- ---------------------------------------------------------------------------------------------------------------------
Price Range Number of Options Weighted Average Exercise Weighted Average Remaining
per Share Outstanding/Exercisable Price Outstanding/Exercisable Contractual Life (in years)
- ---------------------------------------------------------------------------------------------------------------------
$ 5.31 - 11.50 820,999/331,461 $ 7.47/$8.59 8.20
$12.94 - 17.50 156,222/156,222 $ 16.59/$16.59 5.75
$18.63 - 24.38 109,574/109,574 $ 21.54/$21.54 2.92
- ---------------------------------------------------------------------------------------------------------------------
1,086,795/597,257 $ 10.20/$13.06 7.31
- ---------------------------------------------------------------------------------------------------------------------
The weighted average fair market value of options granted during the year was
$2.18 in 2001, $3.20 in 2000 and $3.31 in 1999.
Had compensation cost for the Company's stock options been determined using the
fair value method, the Company's pro forma operating results would have been as
follows:
- -------------------------------------------------------------------------------------------------------------------
2001 2000 1999
- -------------------------------------------------------------------------------------------------------------------
Income from continuing operations $ 3,112 $ 7,744 $ 5,221
Diluted earnings per common share from continuing operations $ 0.38 $ 0.95 $ 0.64
- -------------------------------------------------------------------------------------------------------------------
For purposes of calculating pro forma operating results, the fair value of each
option grant was estimated using the Black-Scholes option pricing model with an
expected volatility of 35%, a risk free rate equivalent to five year U.S.
Treasury securities and an expected life of five years. The pro forma operating
results reflect only options granted after 1995.
The Company's employee stock purchase plan provides for the issuance of up to
150,000 shares of Class A common stock at a purchase price of not less than 85%
of the fair market value at the date of grant. During 2001, 2000 and 1999
13,382, 16,701, 13,722 shares, respectively, were issued under this plan.
12 RELATED PARTY Transactions
Various transactions are conducted between the Company and organizations
controlled by the Johnson Family. These include consulting services, office
rental, royalties and certain administrative activities. Total net costs of
these transactions are $546, $542, $474 for 2001, 2000 and 1999, respectively.
13 SEGMENTS OF BUSINESS
The Company conducts its worldwide operations through separate global business
units, each of which represent major product lines. Operations are conducted in
the United States and various foreign countries, primarily in Europe, Canada and
the Pacific Basin.
Net sales and operating profit include both sales to customers, as reported in
the Company's consolidated statements of operations, and interunit transfers,
which are priced to recover cost plus an appropriate profit margin. Identifiable
assets represent assets that are used in the Company's operations in each
business unit at the end of the years presented. There were no concentrations in
revenue from a particular customer, product or geographic area in each of the
years presented.
F-18
A summary of the Company's continuing operations by business segment is
presented below:
- -----------------------------------------------------------------------------------------------------
2001 2000 1999
- -----------------------------------------------------------------------------------------------------
Net sales:
Outdoor equipment:
Unaffiliated customers $ 114,875 $ 104,052 $ 92,951
Interunit transfers 89 67 14
Watercraft:
Unaffiliated customers 85,841 90,178 70,160
Interunit transfers 343 397 260
Diving:
Unaffiliated customers 80,426 82,840 80,610
Interunit transfers 62 5 9
Motors:
Unaffiliated customers 64,446 76,680 64,671
Interunit transfers 539 1,363 1,783
Other 49 1,139 1,806
Eliminations (1,033) (1,832) (2,066)
- -----------------------------------------------------------------------------------------------------
$ 345,637 $ 354,889 $ 310,198
=====================================================================================================
Operating profit (loss):
Outdoor equipment $ 12,015 $ 8,182 $ 3,546
Watercraft 1,293 10,327 12,598
Diving 11,638 10,832 4,749
Motors 231 3,936 3,497
Other (9,459) (8,558) (4,877)
- -----------------------------------------------------------------------------------------------------
$ 15,718 $ 24,719 $ 19,513
=====================================================================================================
Identifiable assets:
Outdoor equipment $ 49,027 $ 49,512
Watercraft 65,147 63,394
Diving 85,393 87,818
Motors 22,819 30,208
Other 22,527 27,039
- ---------------------------------------------------------------------------------
$ 244,913 $ 257,971
=================================================================================
F-19
A summary of the Company's continuing operations by geographic area is presented
below:
- -----------------------------------------------------------------------------------------------------
2001 2000 1999
- -----------------------------------------------------------------------------------------------------
Net sales:
United States:
Unaffiliated customers $ 228,491 $ 239,079 $ 195,461
Interarea transfers 5,828 6,540 6,622
Europe:
Unaffiliated customers 89,995 88,567 90,772
Interarea transfers 7,267 7,800 6,510
Other 27,151 27,243 23,965
Interarea transfers 7,170 7,863 5,495
Eliminations (20,265) (22,203) (18,627)
- -----------------------------------------------------------------------------------------------------
$ 345,637 $ 354,889 $ 310,198
=====================================================================================================
Identifiable assets:
United States $ 133,659 $ 148,186
Europe 94,490 91,684
Other 16,764 18,101
- ---------------------------------------------------------------------------------
$ 244,913 $ 257,971
=================================================================================
14 VALUATION AND QUALIFYING ACCOUNTS
The following summarizes changes to valuation and qualifying accounts:
- --------------------------------------------------------------------------------------------------------------------
Additions Reserves of
Balance at Charged to Businesses Balance
Beginning Costs and Acquired Less at End
of Year Expenses or Sold Deductions of Year
- --------------------------------------------------------------------------------------------------------------------
Year ended September 28, 2001:
Allowance for doubtful accounts $ 3,895 $ 2,460 $ -- $ 2,616 $ 3,739
Reserves for inventory valuation 2,949 1,529 -- 1,074 3,404
Year ended September 29, 2000
Allowance for doubtful accounts 3,236 1,812 -- 1,153 3,895
Reserves for inventory valuation 4,911 853 -- 2,815 2,949
Year ended October 1, 1999:
Allowance for doubtful accounts 2,153 2,161 14 1,092 3,236
Reserves for inventory valuation 5,196 801 -- 1,086 4,911
- --------------------------------------------------------------------------------------------------------------------
Deductions include the net impact of foreign currency fluctuations on the
respective accounts.
F-20
15 EARNINGS PER SHARE
Basic earnings per share excludes any dilutive effects of options, warrants and
convertible securities. Diluted earnings per share is similar to the previously
reported fully diluted earnings per share.
The following sets forth the computation of basic and diluted earnings per
common share:
- --------------------------------------------------------------------------------------------------------------------
2001 2000 1999
- --------------------------------------------------------------------------------------------------------------------
Income from continuing operations before cumulative
effect of change in accounting principle for
basic and diluted earnings per share $3,610 $8,375 $5,861
- --------------------------------------------------------------------------------------------------------------------
Weighted average shares outstanding 8,161,624 8,139,340 8,108,781
Less nonvested restricted stock 15,162 17,265 12,206
- --------------------------------------------------------------------------------------------------------------------
Basic average common shares 8,146,462 8,122,075 8,096,575
Dilutive stock options and restricted stock 23,227 8,208 11,653
- --------------------------------------------------------------------------------------------------------------------
Diluted average common shares 8,169,739 8,130,283 8,108,228
- --------------------------------------------------------------------------------------------------------------------
Basic earnings per common share from continuing operations
before cumulative effect of change in accounting principle $0.66 $1.03 $0.72
- --------------------------------------------------------------------------------------------------------------------
Diluted earnings per common share from continuing operations
before cumulative effect of change in accounting principle $0.66 $1.03 $0.72
- --------------------------------------------------------------------------------------------------------------------
16 LITIGATION
The Company is subject to various legal actions and proceedings in the normal
course of business, including those related to environmental matters. The
Company is insured against loss for certain of these matters. Although
litigation is subject to many uncertainties and the ultimate exposure with
respect to these matters cannot be ascertained, management does not believe the
final outcome will have a material adverse effect on the financial condition,
results of operations, liquidity or cash flows of the Company.
17 SUBSEQUENT EVENT
In November 2001, subsequent to the end of the 2001 fiscal year, the Company
completed the sale and leaseback of their headquarters facility in Sturtevant,
Wisconsin to an affiliated party. Proceeds from the sale were $5.0 million.
F-21
18 QUARTERLY FINANCIAL SUMMARY (unaudited)
The following summarizes quarterly operating results:
- ---------------------------------------------------------------------------------------------------------------------
First Quarter Second Quarter Third Quarter Fourth Quarter
- ---------------------------------------------------------------------------------------------------------------------
2001 2000 2001 2000 2001 2000 2001 2000
- ---------------------------------------------------------------------------------------------------------------------
Net sales $ 58,750 $ 57,299 $ 98,719 $ 98,734 $ 113,927 $ 116,662 $ 74,241 $ 82,194
Gross profit 23,324 23,010 39,358 41,101 46,552 47,996 27,469 30,706
Operating profit (loss) (3,569) 139 6,595 9,584 13,000 13,912 (308) 1,084
- ---------------------------------------------------------------------------------------------------------------------
Income (loss) from continuing
operations before
cumulative effect of change
in accounting principle
(3,229) (1,035) 2,203 3,896 6,283 5,958 (1,647) (444)
Loss from discontinued
operations -- (940) -- -- -- -- -- --
Loss on disposal of
discontinued operations -- (23,109) -- (1,309) -- -- -- --
Cumulative effect of change
in accounting principle,
net of tax 1,755 -- -- -- -- -- -- --
- ---------------------------------------------------------------------------------------------------------------------
Net income (loss) $ (1,474) $ (25,084)$ 2,203 $ 2,587 $ 6,283 $ 5,958 $ (1,647) $ (444)
- ---------------------------------------------------------------------------------------------------------------------
Basic earnings (loss) per
common share:
Continuing operations $ (0.40) $ (0.13) $ 0.27 $ 0.48 $ 0.77 $ 0.73 $ (0.20) $ (0.05)
Discontinued operations -- (2.96) -- (0.16) -- -- -- --
Cumulative effect of
change in accounting
principle, net of tax 0.22 -- -- -- -- -- -- --
- ---------------------------------------------------------------------------------------------------------------------
Net income (loss) $ (0.18) $ (3.09) $ 0.27 $ 0.32 $ 0.77 $ 0.73 $ (0.20) $ (0.05)
- ---------------------------------------------------------------------------------------------------------------------
Diluted earnings (loss) per
common share:
Continuing operations $ (0.40) $ (0.13) $ 0.27 $ 0.48 $ 0.77 $ 0.73 $ (0.20) $ (0.05)
Discontinued operations -- (2.96) -- (0.16) -- -- -- --
Cumulative effect of
change in accounting
principle, net of tax 0.22 -- -- -- -- -- -- --
- ---------------------------------------------------------------------------------------------------------------------
Net income (loss) $ (0.18) $ (3.09) $ 0.27 $ 0.32 $ 0.77 $ 0.73 $ (0.20) $ (0.05)
- ---------------------------------------------------------------------------------------------------------------------
F-22
================================================================================
JOHNSON OUTDOORS INC.
FIFTH AMENDMENT AND WAIVER TO NOTE AGREEMENTS
Dated as of December 13, 2001
Re:
Note Agreement dated as of October 1, 1995
and
$30,000,000 7.77% Senior Notes, Series A, due October 15, 2005
$15,000,000 6.98% Senior Notes, Series B, due October 15, 2005
================================================================================
JOHNSON OUTDOORS INC.
1326 Willow Road
P.O. Box 901
Sturtevant, Wisconsin 53177-0901
FIFTH AMENDMENT AND WAIVER TO NOTE AGREEMENTS
Dated as of December 13, 2001
Re: Note Agreement dated as of October 1, 1995
and
$30,000,000 7.77% Senior Notes, Series A, due October 15, 2005
$15,000,000 6.98% Senior Notes, Series B, due October 15, 2005
To the Noteholders named in Schedule I hereto which are also signatories to this
Fifth Amendment to the Note Agreements.
Ladies and Gentlemen:
Reference is made to the separate Note Agreements dated as of October
1, 1995, as amended by the First Amendment to Note Agreements dated as of
October 31, 1996, the Second Amendment to Note Agreements dated as of September
30, 1997, the Third Amendment to Note Agreements dated as of October 3, 1997,
and the Fourth Amendment to Note Agreements dated as of February 1, 2000 (the
"Note Agreements"), between Johnson Outdoors Inc. (formerly known as Johnson
Worldwide Associates Inc.), a Wisconsin corporation (the "Company"), and the
Purchasers named therein, under and pursuant to which (i) $30,000,000 7.77%
Senior Notes, Series A, due October 15 and 2005 and (ii) $15,000,000 6.98%
Senior Notes, Series B, due October 15, 2005 (the "Notes") of the Company were
originally issued. Terms used but not otherwise defined herein shall have the
meanings set forth in the Note Agreements.
The Company hereby requests that you accept the waivers and amendments
set forth in this Fifth Amendment and Waiver to Note Agreements (the "Fifth
Amendment to Note Agreements") in the manner herein provided:
ARTICLE 1
WAIVER OF NOTE AGREEMENTS
Section 1.1. Waiver of Default under Section 5.6(b). Pursuant to that
certain Three Year Revolving Credit Agreement dated as of August 31, 2001
between the Company and the financial institutions named therein (the "Bank
Credit Agreement"), certain Subsidiaries of the Company entered into guaranties
of Indebtedness outstanding under the Bank Credit Agreement.
The amount of Indebtedness outstanding under the Bank Credit Agreement exceeds
the aggregate principal amount of Indebtedness which is permitted to be
outstanding in respect of Restricted Subsidiaries of the Company under and
pursuant to Section 5.6(b) of the Note Agreements. The Noteholders hereby waive
any Default or Event of Default which shall exist, or shall have existed, under
Sections 5.6(b) and 6.1(f) of the Note Agreements during the period beginning on
August 31, 2001 to and including the date hereof solely on account of such
guaranties under the Bank Credit Agreement.
ARTICLE 2
AMENDMENT OF NOTE AGREEMENTS
Section 2.1. Amendment of Section 1. Section 1 of the Note Agreements
shall be and is hereby amended by the addition thereto of a new Section 1.4 to
read as follows:
Section 1.4. Subsidiary Guaranty. The payment by the Company
of all amounts due with respect to the Notes and the performance by the
Company of its obligations under this Agreement will be absolutely and
unconditionally guaranteed by the Subsidiary Guarantors pursuant to the
Subsidiary Guaranty (the "Subsidiary Guaranty"), which shall be in
substantially the form attached hereto as Exhibit E.
Payments under the Subsidiary Guaranties shall be subject to
the terms of an Intercreditor Agreement dated as of December 13, 2001
(the "Intercreditor Agreement") which shall be in substantially the
form attached hereto as Exhibit F among the Purchaser, the banks which
are parties to the Bank Credit Agreement and certain other creditors of
the Company which are beneficiaries of Guaranties by Subsidiary
Guarantors.
Section 2.2. Amendment to Section 5.6(b). Section 5.6(b) of the Note
Agreements shall be and is hereby amended in its entirety so that the same shall
read as follows:
(b) The Company will not at any time permit the sum of (i)
Current Debt and Funded Debt of Restricted Subsidiaries (other than
Current Debt and Funded Debt owed to the Company or an Eighty
Percent-Owned Restricted Subsidiary and Excluded Subsidiary
Obligations), plus (ii) Funded Debt of the Company and Restricted
Subsidiaries secured by Liens permitted by ss.5.7(a)(9) to exceed 25%
of Consolidated Tangible Assets.
Section 2.3. Amendment of Section 5.6. Section 5.6 of the Note
Agreement shall be and is hereby amended by the addition thereto of two new
subsections 5.6(f) and 5.6(g) to read as follows:
-2-
(f) The Company will not at any time permit Indebtedness of
Foreign Subsidiaries outstanding pursuant to the Bank Credit Agreement
to exceed 10.5% of Consolidated Tangible Assets.
(g) The Company will not permit any Restricted Subsidiary to
become a direct borrower, co-obligor or guarantor under the Bank Credit
Agreement; provided that (i) Foreign Subsidiaries may become direct
borrowers under the Bank Credit Agreement within the limitations of
this ss.5.6, and (ii) subject to ss.5.17, Subsidiary Guarantors may be
obligated on the subsidiary guaranties under the Bank Credit Agreement.
Section 2.4. Amendment to Section 5.16(e). The proviso beginning in the
third to the last line of Section 5.16(e) of the Note Agreement shall be and is
hereby amended in its entirety so that the same shall read as follows:
provided further, that such certificates as are delivered with respect
to (i) the period provided for in paragraph (b) above, shall include a
list of any changes in Restricted Subsidiaries as at the end of such
period, and (ii) the periods provided for in paragraphs (a) and (b)
above shall set forth for each Restricted Subsidiary, the amount of
Indebtedness of such Restricted Subsidiary outstanding at the end of
such period together with a brief description of such Indebtedness.
Section 2.5. Amendment to Section 5. Section 5 of the Note Agreements
shall be and is hereby amended by the addition thereto of a new Section 5.17 to
read as follows:
Section 5.17. Subsidiary Guaranty. The Company will cause each
Subsidiary which is, or becomes, a guarantor of Indebtedness under the
Bank Credit Agreement (excluding any Foreign Subsidiary which borrows
amounts denominated in its local currency (and Guaranties of such
borrowings by other Foreign Subsidiaries)) to be a party to the
Subsidiary Guaranty. In the case of any such Subsidiary which becomes a
guarantor under the Bank Credit Agreement after the date of the
Closing, concurrently with such Subsidiary becoming a guarantor under
the Bank Credit Agreement, the Company will deliver to each holder of
the Notes the following items:
(i) a joinder agreement in respect of the Subsidiary
Guaranty which shall have been duly executed by such
Subsidiary;
-3-
(ii) a certificate signed by the President, a Vice
President or another authorized Responsible Officer of the
Company making representations and warranties to the effect of
those contained in Paragraphs 10 and 12 of Exhibit B, with
respect to such Subsidiary and the Subsidiary Guaranty, as
applicable; and
(iii) an opinion of counsel (who may be in-house
counsel for the Company) addressed to each of the holders of
the Notes satisfactory to the holders of a majority in
principal amount of the Notes outstanding at the time, to the
effect that the joinder to the Subsidiary Guaranty has been
duly authorized, executed and delivered by such Subsidiary and
that the Subsidiary Guaranty constitutes the legal, valid and
binding contract and agreement of such Subsidiary Guarantor
enforceable in accordance with its terms, except as an
enforcement of such terms may be limited by bankruptcy,
insolvency, fraudulent conveyance and similar laws affecting
the enforcement of creditors' rights generally and by general
equitable principles.
Section 2.6. Amendment to Section 5. Section 5 of the Note Agreement
shall be and is hereby amended by the addition thereto of a new subsection 5.18
to read as follows:
Section 5.18. Restrictions on Subsidiaries. The Company will
not, and will not permit any Restricted Subsidiary to, agree to or
otherwise permit to exist any contractual limitation on the payment of
dividends or other distributions to the Company.
Section 2.7. Amendment to Section 6.1. Section 6.1 of the Note
Agreements shall be and is hereby amended by changing paragraphs "(i)", "(j)"
and "(k)" of Section 6.1 to read as paragraphs "(j)", "(k)" and "(l)"
respectively and by the addition of a new paragraph (i) to read as follows:
(i) the Subsidiary Guaranty ceases to be in full force and
effect or any Subsidiary Guarantor shall contest or deny in writing the
validity or enforceability of any of its obligations under the
Subsidiary Guaranty; or
Section 2.8. Amendment to Section 6.3. Section 6.3 of the Note
Agreements shall be and is hereby amended by (a) changing the reference to
paragraph "(i)" in the third line of such Section 6.3 to read as paragraph "(j)"
and (b) changing the reference to "paragraph (j) or (k)" in the tenth line of
such Section 6.3 to read as "paragraph (k) or (l)."
Section 2.9. Amendment to Section 6.4. Section 6.4 of the Note
Agreements shall be and is hereby amended by changing the reference to paragraph
"(i)" in the fourth line of such Section 6.4 to read as paragraph "(j)."
-4-
Section 2.10. Amendment to Section 8.1. The definition of Funded Debt
in Section 8.1 of the Note Agreements shall be and is hereby amended by the
addition thereto of the following sentence to read as follows:
For purposes of any determination of under this Agreement,
revolving credit Indebtedness under the Bank Credit Agreement shall not
be deemed to be Funded Debt except to the extent that such Indebtedness
shall be included in the Average Outstanding Balance of Consolidated
Current Debt determined in accordance with ss.5.6.
Section 2.11. New Definitions in Section 8.1. Section 8.1 to the Note
Agreements shall be and is hereby amended to include the following new
definitions in alphabetical order:
"Bank Credit Agreement" means that certain Three Year Revolving Credit
Agreement dated as of August 31, 2001, by and among the Company, and the
financial institutions named therein, as amended, supplemented, renewed or
restated and any replacement facility which constitutes the primary bank credit
facility of the Company.
"Excluded Subsidiary Obligations" shall mean (a) the Subsidiary
Guaranty and any other Guaranty of Indebtedness of the Company or another
Restricted Subsidiary by a Subsidiary Guarantor, and (b) obligations of a
Subsidiary Guarantor as co-obligor with the Company or another Restricted
Subsidiary on Indebtedness under note agreements, loan agreements or credit
agreements (other than the Bank Credit Agreement); provided that each creditor
which is the beneficiary of any such Guaranty or which is a party to any such
note agreement, loan agreement or credit agreement (or an agent acting on its
behalf) shall have become a party to the Intercreditor Agreement.
"Foreign Subsidiary" means any Subsidiary of the Company organized
under the laws of a jurisdiction other than the United States or any
jurisdiction thereof.
"Intercreditor Agreement" is defined in ss.1.4.
"Responsible Officer" means any Senior Financial Officer and any other
officer of the Company with responsibility for the administration of the
relevant portion of this Agreement.
"Senior Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or comptroller of the Company.
"Subsidiary Guarantor" means each of the domestic Subsidiaries of the
Company on the date of this Agreement and each other Subsidiary of the Company
that subsequent to the date of this Agreement becomes a party to the Subsidiary
Guaranty in accordance with ss.5.17 of this Agreement.
"Subsidiary Guaranty" is defined in ss.1.4.
-5-
ARTICLE 3
WARRANTIES AND REPRESENTATIONS
The Company represents and warrants that as of the date hereof:
Section 3.1. Fifth Amendment to Note Agreements is Legal and
Authorized. (a) The execution and delivery of the Fifth Amendment to Note
Agreements by the Company and compliance by the Company with all of the
provisions of the Note Agreements, as amended by the Fifth Amendment to Note
Agreements--
(i) is within the corporate powers of the Company; and
(ii) will not violate any provisions of any law or any order
of any court or governmental authority or agency and will not conflict
with or result in any breach of any of the terms, conditions or
provisions of, or constitute a default under the Articles of
Incorporation or By-laws of the Company or any indenture or other
agreement or instrument to which the Company is a party or by which it
may be bound or result in the imposition of any Liens or encumbrances
on any property of the Company.
(b) The execution and delivery of the Fifth Amendment to Note
Agreements has been duly authorized by proper corporate action on the part of
the Company (no action by the stockholders of the Company being required by law,
by the Articles of Incorporation or By-laws of the Company or otherwise); and
the Fifth Amendment to Note Agreements has been executed and delivered by the
Company and the Note Agreements, as amended by the Fifth Amendment to Note
Agreements, constitutes the legal, valid and binding obligation, contract and
agreement of the Company enforceable in accordance with its terms.
Section 3.2. No Defaults. Upon the effectiveness of this Fifth
Amendment to Note Agreements, no Default or Event of Default shall exist or be
continuing.
ARTICLE 4
MISCELLANEOUS
Section 4.1. Ratification of Note Agreements. Except as herein
expressly amended, each of the Note Agreements is in all respects ratified and
confirmed. If and to the extent that any of the terms or provisions of the Note
Agreements is in conflict or inconsistent with any of the terms or provisions of
this Fifth Amendment to Note Agreements, this Fifth Amendment to Note Agreements
shall govern.
Section 4.2. No Legend Required. References in the Note Agreements or
in any Note, certificate, instrument or other document to the Note Agreements
shall be deemed to be references to the Note Agreements as amended hereby and as
further amended from time to time.
-6-
Section 4.3. Successors and Assigns. This Fifth Amendment to Note
Agreements shall be binding upon the Company and its successors and assigns and
shall inure to the benefit of the Noteholders and to the benefit of the
Noteholders' successors and assigns, including each successive holder or holders
of any Notes.
Section 4.4. Requisite Approval; Expenses. This Fifth Amendment to Note
Agreements shall not be effective until (a) the Company and the holders of at
least 70% in aggregate principal amount of the outstanding Notes shall have
executed this Fifth Amendment to Note Agreements, (b) the Noteholders shall have
received opinions of Foley & Lardner, counsel for the Company, in form and
substance satisfactory to each of the Noteholders covering the matters set forth
in Exhibit A and covering such other matters incident to the transactions
contemplated hereby as the Noteholders or their counsel may reasonably request,
(c) the Company shall have delivered to the Noteholders an Officer's Certificate
making representations and warranties to the effect of those contained in
Paragraphs 10 and 12 of Exhibit B to the Note Agreements, with respect to the
Subsidiary Guarantors and the Subsidiary Guaranty, (d) each Subsidiary Guarantor
of the Company shall have executed and delivered to the Noteholders a
counterpart of the Subsidiary Guaranty, (e) the Second Amendment and Waiver to
that certain Note Agreement dated as of September 15, 1997 shall have been
executed and delivered in substantially the same form as this Fifth Amendment to
Note Agreements, (f) the Intercreditor Agreement shall have been executed and
delivered by the Noteholders, the banks which are parties to the Bank Credit
Agreement and certain other creditors of the Company which are beneficiaries of
Guaranties by Subsidiary Guarantors, and (g) the Company shall have paid all
out-of-pocket expenses incurred by the Noteholders in connection with the
consummation of the transactions contemplated by this Fifth Amendment to Note
Agreements, including, without limitation, the fees, expenses and disbursements
of Chapman and Cutler which are reflected in statements of such counsel rendered
on or prior to the effective date of this Fifth Amendment to Note Agreements.
Section 4.5. Table of Contents. The Table of Contents of the Note
Agreements shall be and is hereby amended to reflect the changes made to section
title headings herein.
Section 4.6. Counterparts. This Fifth Amendment to Note Agreements may
be executed in any number of counterparts, each executed counterpart
constituting an original but all together only one agreement.
Section 4.7. Governing Law. The Note Agreements as amended by this
Fifth Amendment to Note Agreements and the Notes shall be governed by and
construed in accordance with Wisconsin law, including all matters of
construction, validity and performance.
-7-
IN WITNESS WHEREOF, the Company has executed this Fifth Amendment to
Note Agreements as of the day and year first above written.
JOHNSON OUTDOORS INC.
By /s/ Wade T. Neuharth
------------------------------------
Wade T. Neuharth
Its Treasurer
This Fifth Amendment to Note Agreements is accepted and agreed to as of
the day and year first above written.
NATIONWIDE LIFE INSURANCE COMPANY
By /s/ Mark W. Poeppelman
------------------------------------
Mark W. Poeppelman
Its Associate Vice President
This Fifth Amendment to Note Agreement is accepted and agreed to as of
the day and year first above written.
GREAT-WEST LIFE & ANNUITY INSURANCE
COMPANY
By /s/ Wayne T. Hoffmann
------------------------------------
Wayne T. Hoffmann
Its Senior Vice President
Investments
By /s/ James G. Lowery
------------------------------------
James G. Lowery
Its Assistant Vice President
Investments
================================================================================
JOHNSON OUTDOORS INC.
SECOND AMENDMENT AND WAIVER TO NOTE AGREEMENT
Dated as of December 13, 2001
Re:
Note Agreement dated as of September 15, 1997
and
$25,000,000 7.15% Senior Notes, due October 15, 2007
================================================================================
JOHNSON OUTDOORS INC.
1326 Willow Road
P.O. Box 901
Sturtevant, Wisconsin 53177-0901
SECOND AMENDMENT AND WAIVER TO NOTE AGREEMENT
Dated as of December 13, 2001
Re: Note Agreement dated as of September 15, 1997
and
$25,000,000 7.15% Senior Notes due October 15, 2007
To The Northwestern Mutual
Life Insurance Company
720 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Ladies and Gentlemen:
Reference is made to the Note Agreement dated as of September 15, 1997,
as amended by the First Amendment to Note Agreement dated as of February 1, 2000
(the "Note Agreement"), between Johnson Outdoors Inc. (formerly known as Johnson
Worldwide Associates Inc.), a Wisconsin corporation (the "Company"), and you,
under and pursuant to which $25,000,000 7.15% Senior Notes due October 15, 2007
(the "Notes") of the Company were originally issued. Terms used but not
otherwise defined herein shall have the meanings set forth in the Note
Agreement.
The Company hereby requests that you accept the waivers and amendments
set forth in this Second Amendment and Waiver to Note Agreement (the "Second
Amendment to Note Agreement") in the manner herein provided:
ARTICLE 1.
WAIVER OF NOTE AGREEMENTS
Section 1.1. Waiver of Default under Section 5.6(b). Pursuant to that
certain Three Year Revolving Credit Agreement dated as of August 31, 2001
between the Company and the financial institutions named therein (the "Bank
Credit Agreement"), certain Subsidiaries of the Company entered into guaranties
of Indebtedness outstanding under the Bank Credit Agreement. The amount of
Indebtedness outstanding under the Bank Credit Agreement exceeds the aggregate
principal amount of Indebtedness which is permitted to be outstanding in respect
of Restricted Subsidiaries of the Company under and pursuant to Section 5.6(b)
of the Note Agreement. The Noteholder first named above hereby waives any
Default or Event of Default which shall exist, or shall have existed, under
Sections 5.6(b) and 6.1(f) of the Note Agreement
during the period beginning on August 31, 2001 to and including the date hereof
solely on account of such guaranties under the Bank Credit Agreement.
ARTICLE 2.
AMENDMENT OF NOTE AGREEMENT
Section 2.1. Amendment of Section 1. Section 1 of the Note Agreement
shall be and is hereby amended by the addition thereto of a new Section 1.3 to
read as follows:
Section 1.3. Subsidiary Guaranty. The payment by the Company
of all amounts due with respect to the Notes and the performance by the
Company of its obligations under this Agreement will be absolutely and
unconditionally guaranteed by the Subsidiary Guarantors pursuant to the
Subsidiary Guaranty (the "Subsidiary Guaranty"), which shall be in
substantially the form attached hereto as Exhibit E.
Payments under the Subsidiary Guaranties shall be subject to
the terms of an Intercreditor Agreement dated as of December 13, 2001
(the "Intercreditor Agreement") which shall be in substantially the
form attached hereto as Exhibit F among the Purchaser, the banks which
are parties to the Bank Credit Agreement and certain other creditors of
the Company which are beneficiaries of Guaranties by Subsidiary
Guarantors.
Section 2.2. Amendment to Section 5.6(b). Section 5.6(b) of the Note
Agreement shall be and is hereby amended in its entirety so that the same shall
read as follows:
(b) The Company will not at any time permit the sum of (i)
Current Debt and Funded Debt of Restricted Subsidiaries (other than
Current Debt and Funded Debt owed to the Company or an Eighty
Percent-Owned Restricted Subsidiary and Excluded Subsidiary
Obligations), plus (ii) Funded Debt of the Company and Restricted
Subsidiaries secured by Liens permitted by ss.5.7(a)(9) to exceed 25%
of Consolidated Tangible Assets.
Section 2.3. Amendment of Section 5.6. Section 5.6 of the Note
Agreement shall be and is hereby amended by the addition thereto of two new
subsections 5.6(f) and 5.6(g) to read as follows:
(f) The Company will not at any time permit Indebtedness of
Foreign Subsidiaries outstanding pursuant to the Bank Credit Agreement
to exceed 10.5% of Consolidated Tangible Assets.
-2-
(g) The Company will not permit any Restricted Subsidiary to
become a direct borrower, co-obligor or guarantor under the Bank Credit
Agreement; provided that (i) Foreign Subsidiaries may become direct
borrowers under the Bank Credit Agreement within the limitations of
this ss.5.6, and (ii) subject to ss.5.17, Subsidiary Guarantors may be
obligated on the subsidiary guaranties under the Bank Credit Agreement.
Section 2.4. Amendment to Section 5.16(e). The proviso beginning in the
third to the last line of Section 5.16(e) of the Note Agreement shall be and is
hereby amended in its entirety so that the same shall read as follows:
provided further, that such certificates as are delivered with respect
to (i) the period provided for in paragraph (b) above, shall include a
list of any changes in Restricted Subsidiaries as at the end of such
period, and (ii) the periods provided for in paragraphs (a) and (b)
above shall set forth for each Restricted Subsidiary, the amount of
Indebtedness of such Restricted Subsidiary outstanding at the end of
such period together with a brief description of such Indebtedness.
Section 2.5. Amendment to Section 5. Section 5 of the Note Agreement
shall be and is hereby amended by the addition thereto of a new Section 5.17 to
read as follows:
Section 5.17. Subsidiary Guaranty. The Company will cause each
Subsidiary which is, or becomes, a guarantor of Indebtedness under the
Bank Credit Agreement (excluding any Foreign Subsidiary which borrows
amounts denominated in its local currency (and Guaranties of such
borrowings by other Foreign Subsidiaries)) to be a party to the
Subsidiary Guaranty. In the case of any such Subsidiary which becomes a
guarantor under the Bank Credit Agreement after the date of the
Closing, concurrently with such Subsidiary becoming a guarantor under
the Bank Credit Agreement, the Company will deliver to each holder of
the Notes the following items:
(i) a joinder agreement in respect of the Subsidiary Guaranty
which shall have been duly executed by such Subsidiary;
(ii) a certificate signed by the President, a Vice President
or another authorized Responsible Officer of the Company making
representations and warranties to the effect of those contained in
Paragraphs 10 and 12 of Exhibit B, with respect to such Subsidiary and
the Subsidiary Guaranty, as applicable; and
-3-
(iii) an opinion of counsel (who may be in-house counsel for
the Company) addressed to each of the holders of the Notes satisfactory
to the holders of a majority in principal amount of the Notes
outstanding at the time, to the effect that the joinder to the
Subsidiary Guaranty has been duly authorized, executed and delivered by
such Subsidiary and that the Subsidiary Guaranty constitutes the legal,
valid and binding contract and agreement of such Subsidiary Guarantor
enforceable in accordance with its terms, except as an enforcement of
such terms may be limited by bankruptcy, insolvency, fraudulent
conveyance and similar laws affecting the enforcement of creditors'
rights generally and by general equitable principles.
Section 2.6. Amendment to Section 5. Section 5 of the Note Agreement
shall be and is hereby amended by the addition thereto of a new subsection 5.18
to read as follows:
Section 5.18. Restrictions on Subsidiaries. The Company will
not, and will not permit any Restricted Subsidiary to, agree to or
otherwise permit to exist any contractual limitation on the payment of
dividends or other distributions to the Company.
Section 2.7. Amendment to Section 6.1. Section 6.1 of the Note
Agreement shall be and is hereby amended by changing paragraphs "(i)", "(j)" and
"(k)" of Section 6.1 to read as paragraphs "(j)", "(k)" and "(l)", respectively,
and by the addition of a new paragraph (i), to read as follows:
(i) the Subsidiary Guaranty ceases to be in full force and
effect or any Subsidiary Guarantor shall contest or deny in writing the
validity or enforceability of any of its obligations under the
Subsidiary Guaranty; or
Section 2.8. Amendment to Section 6.3. Section 6.3 of the Note
Agreement shall be and is hereby amended by (a) changing the reference to
paragraph "(i)" in the third line of such Section 6.3 to read as paragraph "(j)"
and (b) changing the reference to "paragraph (j) or (k)" in the tenth line of
such Section 6.3 to read as "paragraph (k) or (l)."
Section 2.9. Amendment to Section 6.4. Section 6.4 of the Note
Agreement shall be and is hereby amended by changing the reference to paragraph
"(i)" in the fourth line of such Section 6.4 to read as paragraph "(j)."
Section 2.10. Amendment to Section 8.1. The definition of Funded Debt in
Section 8.1 of the Note Agreement shall be and is hereby amended by the addition
thereto of the following sentence to read as follows:
For purposes of any determination of under this Agreement, revolving
credit Indebtedness under the Bank Credit Agreement
-4-
shall not be deemed to be Funded Debt except to the extent that such
Indebtedness shall be included in the Average Outstanding Balance of
Consolidated Current Debt determined in accordance with ss.5.6.
Section 2.11. New Definitions in Section 8.1. Section 8.1 to the Note
Agreement shall be and is hereby amended to include the following new
definitions in alphabetical order:
"Bank Credit Agreement" means that certain Three Year Revolving Credit
Agreement dated as of August 31, 2001, by and among the Company, and the
financial institutions named therein, as amended, supplemented, renewed or
restated and any replacement facility which constitutes the primary bank credit
facility of the Company.
"Excluded Subsidiary Obligations" shall mean (a) the Subsidiary
Guaranty and any other Guaranty of Indebtedness of the Company or another
Restricted Subsidiary by a Subsidiary Guarantor, and (b) obligations of a
Subsidiary Guarantor as co-obligor with the Company or another Restricted
Subsidiary on Indebtedness under note agreements, loan agreements or credit
agreements (other than the Bank Credit Agreement); provided that each creditor
which is the beneficiary of any such Guaranty or which is a party to any such
note agreement, loan agreement or credit agreement (or an agent acting on its
behalf) shall have become a party to the Intercreditor Agreement.
"Foreign Subsidiary" means any Subsidiary of the Company organized
under the laws of a jurisdiction other than the United States or any
jurisdiction thereof.
"Intercreditor Agreement" is defined in ss.1.3.
"Responsible Officer" means any Senior Financial Officer and any other
officer of the Company with responsibility for the administration of the
relevant portion of this Agreement.
"Senior Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or comptroller of the Company.
"Subsidiary Guarantor" means each of the domestic Subsidiaries of the
Company on the date of this Agreement and each other Subsidiary of the Company
that subsequent to the date of this Agreement becomes a party to the Subsidiary
Guaranty in accordance with ss.5.17 of this Agreement.
"Subsidiary Guaranty" is defined in ss.1.3.
ARTICLE 3.
WARRANTIES AND REPRESENTATIONS
The Company represents and warrants that as of the date hereof:
-5-
Section 3.1. Second Amendment to Note Agreement is Legal and
Authorized. (a) The execution and delivery of the Second Amendment to Note
Agreement by the Company and compliance by the Company with all of the
provisions of the Note Agreement, as amended by the Second Amendment to Note
Agreement--
(i) is within the corporate powers of the Company; and
(ii) will not violate any provisions of any law or any order
of any court or governmental authority or agency and will not conflict
with or result in any breach of any of the terms, conditions or
provisions of, or constitute a default under the Articles of
Incorporation or By-laws of the Company or any indenture or other
agreement or instrument to which the Company is a party or by which it
may be bound or result in the imposition of any Liens or encumbrances
on any property of the Company.
(b) The execution and delivery of the Second Amendment to Note
Agreement has been duly authorized by proper corporate action on the part of the
Company (no action by the stockholders of the Company being required by law, by
the Articles of Incorporation or By-laws of the Company or otherwise); and the
Second Amendment to Note Agreement has been executed and delivered by the
Company and the Note Agreement, as amended by the Second Amendment to Note
Agreement, constitutes the legal, valid and binding obligation, contract and
agreement of the Company enforceable in accordance with its terms.
Section 3.2. No Defaults. Upon the effectiveness of this Second
Amendment to Note Agreement, no Default or Event of Default shall exist or be
continuing.
ARTICLE 4.
MISCELLANEOUS
Section 4.1. Ratification of Note Agreement. Except as herein expressly
amended, the Note Agreement is in all respects ratified and confirmed. If and to
the extent that any of the terms or provisions of the Note Agreement is in
conflict or inconsistent with any of the terms or provisions of this Second
Amendment to Note Agreement, this Second Amendment to Note Agreement shall
govern.
Section 4.2. No Legend Required. References in the Note Agreement or in
any Note, certificate, instrument or other document to the Note Agreement shall
be deemed to be references to the Note Agreement as amended hereby and as
further amended from time to time.
Section 4.3. Successors and Assigns. This Second Amendment to Note
Agreement shall be binding upon the Company and its successors and assigns and
shall inure to the benefit of you and to the benefit of your successors and
assigns, including each successive holder or holders of any Notes.
-6-
Section 4.4. Requisite Approval; Expenses. This Second Amendment to
Note Agreement shall not be effective until (a) the Company and the holders of
at least 70% in aggregate principal amount of outstanding Notes shall have
executed this Second Amendment to Note Agreement, (b) you shall have received an
opinion of Foley & Lardner, counsel for the Company, in form and substance
satisfactory to you and any other holder of Notes covering the matters set forth
in Exhibit A and covering such other matters incident to the transactions
contemplated hereby as you or your counsel may reasonably request, (c) the
Company shall have delivered to you an Officer's Certificate making
representations and warranties to the effect of those contained in Paragraphs 10
and 12 of Exhibit B to the Note Agreement, with respect to the Subsidiary
Guarantors and the Subsidiary Guaranty, (d) each Subsidiary Guarantor of the
Company shall have executed and delivered to you a counterpart of the Subsidiary
Guaranty, (e) the Fifth Amendment and Waiver to that certain Note Agreement
dated as of October 1, 1995 shall have been executed and delivered in
substantially the same form as this Second Amendment to Note Agreement, (f) the
Intercreditor Agreement shall have been executed and delivered by you, the banks
which are parties to the Bank Credit Agreement and certain other creditors of
the Company which are beneficiaries of Guaranties by Subsidiary Guarantors, and
(g) the Company shall have paid all out-of-pocket expenses incurred by you in
connection with the consummation of the transactions contemplated by this Second
Amendment to Note Agreement, including, without limitation, the fees, expenses
and disbursements of Chapman and Cutler which are reflected in statements of
such counsel rendered on or prior to the effective date of this Second Amendment
to Note Agreement.
Section 4.5. Table of Contents. The Table of Contents of the Note
Agreement shall be and is hereby amended to reflect the changes made to section
title headings herein.
Section 4.6. Counterparts. This Second Amendment to Note Agreement may
be executed in any number of counterparts, each executed counterpart
constituting an original but all together only one agreement.
Section 4.7. Governing Law. The Note Agreement as amended by this
Second Amendment to Note Agreement and the Notes shall be governed by and
construed in accordance with Wisconsin law, including all matters of
construction, validity and performance.
-7-
IN WITNESS WHEREOF, the Company has executed this Second Amendment to
Note Agreement as of the day and year first above written.
JOHNSON OUTDOORS INC.
By /s/ Wade T. Neuharth
------------------------------------
Wade T. Neuharth
Its Treasurer
-8-
This Second Amendment to Note Agreement is accepted and agreed to as of
the day and year first above written.
THE NORTHWESTERN MUTUAL LIFE INSURANCE
COMPANY
By /s/ R. A. Strand
------------------------------------
R. A. Strand
Its Authorized Representative
-9-
EXECUTION COPY
3-YEAR REVOLVING CREDIT AGREEMENT
DATED AS OF AUGUST 31, 2001
AMONG
JOHNSON OUTDOORS INC.,
THE SUBSIDIARY BORROWERS
FROM TIME TO TIME PARTIES HERETO,
THE LENDERS FROM TIME TO TIME PARTIES HERETO,
and
BANK ONE, NA (MAIN OFFICE CHICAGO),
as Administrative Agent
- --------------------------------------------------------------------------------
BANC ONE CAPITAL MARKETS, INC.,
as Arranger and Sole Book Runner
- --------------------------------------------------------------------------------
SIDLEY AUSTIN BROWN & WOOD
Bank One Plaza
10 South Dearborn Street
Chicago, Illinois 60603
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS........................................................1
1.1. Certain Defined Terms.........................................1
1.2. References...................................................20
1.3. Supplemental Disclosure......................................20
ARTICLE II THE CREDITS......................................................20
2.1. Commitment...................................................20
2.2. Swing Line Loans.............................................21
2.2.1. Amount of Swing Line Loans...............................21
2.2.2. Borrowing Notice.........................................21
2.2.3. Making of Swing Line Loans...............................21
2.2.4. Repayment of Swing Line Loans............................21
2.3. Determination of Dollar Amounts; Required Payments;
Termination................................................22
2.3.1. Determination of Dollar Amounts..........................22
2.3.2. Required Payments........................................23
2.3.3. Termination..............................................23
2.4. Ratable Loans................................................23
2.5. Types of Advances............................................23
2.6. Commitment Fee; Reductions in Aggregate Commitment;
Increases in Aggregate Commitment..........................23
2.6.1. Commitment Fee...........................................23
2.6.2. Reductions in Aggregate Commitment.......................23
2.6.3. Increase of Aggregate Commitment.........................24
2.7. Minimum Amount of Each Advance...............................24
2.8. Principal Payments...........................................24
2.8.1. Optional Principal Payments..............................25
2.8.2. Mandatory Principal Payments.............................25
2.9. Method of Selecting Types and Interest Periods for
New Advances; Method of Borrowing; Advances to be
Made in euro...............................................25
2.9.1. Method of Selecting Types and Interest Periods
for New Advances.......................................25
2.9.2. Method of Borrowing......................................26
2.9.3. Advances to be Made in euro..............................26
2.10. Conversion and Continuation of Outstanding Advances..........26
i
2.11. Changes in Interest Rate, etc................................27
2.12. No Conversion or Continuation of Eurocurrency Advances
After Default; Rates Applicable After Default..............27
2.13. Method of Payment............................................28
2.14. Noteless Agreement; Evidence of Indebtedness.................29
2.15. Telephonic Notices...........................................29
2.16. Interest Payment Dates; Interest and Fee Basis...............30
2.17. Notification of Advances, Interest Rates, Prepayments
and Commitment Reductions..................................30
2.18. Lending Installations........................................30
2.19. Non-Receipt of Funds by the Administrative Agent.............31
2.20. Replacement of Lender........................................31
2.21. Facility LCs.................................................31
2.21.1. Issuance; Transitional Facility LCs......................31
2.21.2. Participations...........................................32
2.21.3. Notice...................................................32
2.21.4. LC Fees..................................................32
2.21.5. Administration; Reimbursement by Lenders.................33
2.21.6. Reimbursement by the Borrowers...........................33
2.21.7. Obligations Absolute.....................................34
2.21.8. Actions of LC Issuers....................................34
2.21.9. Indemnification..........................................35
2.21.10. Lenders' Indemnification.................................35
2.21.11. Facility LC Collateral Account...........................36
2.21.12. Rights as a Lender.......................................36
2.22. Subsidiary Borrowers.........................................36
2.23. Judgment Currency............................................37
ARTICLE III YIELD PROTECTION; TAXES.........................................37
3.1. Yield Protection.............................................37
3.2. Changes in Capital Adequacy Regulations......................38
3.3. Availability of Types of Advances............................39
3.4. Funding Indemnification......................................39
3.5. Taxes........................................................39
3.6. Lender Statements; Survival of Indemnity.....................41
ii
ARTICLE IV CONDITIONS PRECEDENT.............................................41
4.1. Initial Credit Extension.....................................41
4.2. Each Credit Extension........................................43
4.3. Initial Advance to Each New Subsidiary Borrower..............43
ARTICLE V REPRESENTATIONS AND WARRANTIES....................................44
5.1. Existence and Standing.......................................44
5.2. Authorization and Validity...................................44
5.3. No Conflict; Government Consent..............................45
5.4. Financial Statements.........................................45
5.5. Material Adverse Change......................................45
5.6. Taxes........................................................45
5.7. Litigation and Contingent Obligations........................45
5.8. Subsidiaries.................................................46
5.9. Accuracy of Information......................................46
5.10. Regulation U.................................................46
5.11. Material Agreements..........................................46
5.12. Compliance With Laws.........................................46
5.13. Ownership of Properties......................................46
5.14. ERISA; Foreign Pension Matters...............................47
5.15. Plan Assets; Prohibited Transactions.........................47
5.16. Environmental Matters........................................47
5.17. Investment Company Act.......................................48
5.18. Public Utility Holding Company Act...........................48
5.19. Insurance....................................................48
ARTICLE VI COVENANTS........................................................48
6.1. Reporting....................................................48
6.2. Use of Proceeds..............................................51
6.3. Notice of Default............................................51
6.4. Conduct of Business..........................................51
6.5. Taxes........................................................52
6.6. Insurance....................................................52
6.7. Compliance with Laws; Maintenance of Plans...................52
6.8. Maintenance of Properties....................................52
iii
6.9. Inspection; Keeping of Books and Records.....................52
6.10. Addition of Guarantors.......................................52
6.11. Dividends and Distributions..................................53
6.12. Indebtedness.................................................53
6.13. Merger.......................................................54
6.14. Sale of Assets...............................................54
6.15. Investments and Acquisitions.................................55
6.16. Liens........................................................57
6.17. Transactions with Affiliates.................................58
6.18. Financial Contracts..........................................58
6.19. ERISA........................................................58
6.20. Environmental Compliance.....................................59
6.21. Financial Covenants..........................................59
6.21.1. Maximum Leverage Ratio...................................59
6.21.2. Minimum Fixed Charge Coverage Ratio......................59
6.21.3. Minimum Consolidated Net Worth...........................60
ARTICLE VII DEFAULTS........................................................60
7.1. Breach of Representations or Warranties......................60
7.2. Failure to Make Payments When Due............................60
7.3. Breach of Covenants..........................................60
7.4. Other Breaches...............................................60
7.5. Default as to Other Indebtedness.............................60
7.6. Voluntary Bankruptcy; Appointment of Receiver; Etc...........61
7.7. Involuntary Bankruptcy; Appointment of Receiver; Etc.........61
7.8. Custody or Control of Property...............................61
7.9. Judgments....................................................61
7.10. ERISA Liabilities............................................62
7.11. Environmental Matters........................................62
7.12. Change in Control............................................62
7.13. Guarantor Revocation.........................................62
ARTICLE VIII ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES.................62
8.1. Acceleration.................................................62
8.2. Amendments...................................................63
iv
8.3. Preservation of Rights.......................................64
ARTICLE IX GUARANTY.........................................................65
9.1. Guarantee of Obligations.....................................65
9.1.1. Company Guaranty.........................................65
9.1.2. Performance by Company...................................65
9.2. Nature of Guaranty...........................................65
9.3. Waivers and Other Agreements.................................65
9.4. Obligations Absolute.........................................66
9.5. No Investigation by Lenders or Administrative Agent..........66
9.6. Indemnity....................................................67
9.7. Reinstatement................................................67
ARTICLE X GENERAL PROVISIONS................................................67
10.1. Survival of Representations..................................67
10.2. Governmental Regulation......................................67
10.3. Headings.....................................................67
10.4. Entire Agreement.............................................67
10.5. Several Obligations; Benefits of this Agreement..............67
10.6. Expenses; Indemnification....................................68
10.7. Numbers of Documents.........................................68
10.8. Accounting...................................................69
10.9. Severability of Provisions...................................69
10.10. Nonliability of Lenders......................................69
10.11. Confidentiality..............................................69
10.12. Lenders Not Utilizing Plan Assets............................70
10.13. Nonreliance..................................................70
10.14. Disclosure...................................................70
10.15. Subordination of Intercompany Indebtedness...................70
ARTICLE XI THE ADMINISTRATIVE AGENT.........................................71
11.1. Appointment; Nature of Relationship..........................71
11.2. Powers.......................................................72
11.3. General Immunity.............................................72
11.4. No Responsibility for Loans, Recitals, etc...................72
v
11.5. Action on Instructions of Lenders............................72
11.6. Employment of Agents and Counsel.............................73
11.7. Reliance on Documents; Counsel...............................73
11.8. Administrative Agents' Reimbursement and Indemnification.....73
11.9. Notice of Default............................................73
11.10. Rights as a Lender...........................................74
11.11. Lender Credit Decision.......................................74
11.12. Successor Administrative Agents..............................74
11.13. Agent and Arranger Fees......................................75
11.14. Delegation to Affiliates.....................................75
11.15. Release of Guarantors........................................75
ARTICLE XII SETOFF; RATABLE PAYMENTS........................................75
12.1. Setoff.......................................................75
12.2. Ratable Payments.............................................76
ARTICLE XIII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS..............76
13.1. Successors and Assigns; Designated Lenders...................76
13.1.1. Successors and Assigns...................................76
13.1.2. Designated Lenders.......................................76
13.2. Participations...............................................78
13.2.1. Permitted Participants; Effect...........................78
13.2.2. Voting Rights............................................78
13.2.3. Benefit of Setoff........................................78
13.3. Assignments..................................................78
13.3.1. Permitted Assignments....................................79
13.3.2. Effect; Effective Date...................................79
13.3.3. The Register.............................................79
13.4. Dissemination of Information.................................80
13.5. Tax Treatment................................................80
ARTICLE XIV NOTICES.........................................................80
14.1. Notices......................................................80
14.2. Change of Address............................................81
vi
ARTICLE XV COUNTERPARTS.....................................................81
ARTICLE XVI CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL....81
16.1. CHOICE OF LAW................................................81
16.2. CONSENT TO JURISDICTION......................................81
16.3. WAIVER OF JURY TRIAL.........................................82
ARTICLE XVII TERMINATION OF EXISTING CREDIT AGREEMENT.......................82
vii
EXHIBITS
Exhibit A - Form of Borrowers' Counsel's Opinion
Exhibit B - Form of Compliance Certificate
Exhibit C - Form of Assignment Agreement
Exhibit D - Form of Loan/Credit Related Money Transfer Instruction
Exhibit E - Form of Promissory Note (if requested)
Exhibit F - List of Closing Documents
Exhibit G - Form of Designation Agreement
Exhibit H - Form of Guaranty
Exhibit I - Form of Assumption Letter
SCHEDULES
Pricing Schedule
Commitment Schedule
Eurocurrency Payment Office Schedule
Schedule 1.1 - Subsidiary Borrowers
Schedule 5.4 - Financial Statements
Schedule 5.8 - Subsidiaries
Schedule 5.14 - ERISA Matters
Schedule 5.16 Environmental Matters
Schedule 6.12 - Existing Indebtedness
Schedule 6.15 - Existing Investments
Schedule 6.16 - Existing Liens
viii
3-YEAR REVOLVING CREDIT AGREEMENT
This 3-Year Revolving Credit Agreement, dated as of August 31, 2001, is
among JOHNSON OUTDOORS INC., one or more other Subsidiary Borrowers from time to
time parties hereto (whether now existing or hereafter formed), the institutions
from time to time parties hereto as Lenders (whether by execution of this
Agreement or an assignment pursuant to Section 13.3), BANK ONE, NA, a national
banking association having its principal office in Chicago, Illinois, as Swing
Line Lender, LC Issuer and Administrative Agent. The parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
1.1. Certain Defined Terms. As used in this Agreement:
"Accounting Changes" is defined in Section 10.8 hereof.
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Company or any of its Subsidiaries (i) acquires any going business or all or
substantially all of the assets of any firm, corporation or limited liability
company, or division thereof, whether through purchase of assets, merger or
otherwise or (ii) directly or indirectly acquires (in one transaction or as the
most recent transaction in a series of transactions) at least a majority (in
number of votes) of the securities of a corporation which have ordinary voting
power for the election of directors (other than securities having such power
only by reason of the happening of a contingency) or a majority (by percentage
of voting power) of the outstanding ownership interests of a partnership or
limited liability company.
"Administrative Agent" means Bank One in its capacity as contractual
representative of the Lenders pursuant to Article XI, and not in its individual
capacity as a Lender, and any successor Administrative Agent appointed pursuant
to Article XI.
"Advance" means a borrowing hereunder consisting of the aggregate
amount of several Loans (i) made by some or all of the Lenders on the same
Borrowing Date, or (ii) converted or continued by the Lenders on the same date
of conversion or continuation, consisting, in either case, of the aggregate
amount of the several Loans of the same Type and, in the case of Eurocurrency
Loans, in the same Agreed Currency and for the same Interest Period. The term
"Advance" shall include Swing Line Loans unless otherwise expressly provided.
"Affected Lender" is defined in Section 2.20.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person is the
"beneficial owner" (as defined in Rule 13d-3 under the Securities Exchange Act
of 1934) of five percent (5%) or more of any class of voting securities (or
other voting interests) of the controlled Person or possesses, directly or
indirectly,
the power to direct or cause the direction of the management or policies of the
controlled Person, whether through ownership of voting securities, by contract
or otherwise.
"Aggregate Commitment" means the aggregate of the Commitments of all
the Lenders, as may be adjusted from time to time pursuant to the terms hereof.
The initial Aggregate Commitment is Seventy Million and 00/100 Dollars
($70,000,000).
"Aggregate Outstanding Credit Exposure" means, at any time, the
aggregate of the Outstanding Credit Exposure of all the Lenders.
"Agreed Currencies" means (i) Dollars, (ii) so long as such currencies
remain Eligible Currencies, Australian Dollars, British Pounds Sterling,
Canadian Dollars, German Deutsche Marks, Dutch Guilders, French Francs, Swiss
Francs, Japanese Yen, and, from and after becoming generally available in the
international currency and exchange markets, the euro, and (iii) any other
Eligible Currency which the applicable Borrower requests the Administrative
Agent to include as an Agreed Currency hereunder and which is acceptable to all
of the Lenders. For the purposes of this definition, each of the specific
currencies referred to in clause (ii), above, shall mean and be deemed to refer
to the lawful currency of the jurisdiction referred to in connection with such
currency, e.g., "Australian Dollars" means the lawful currency of Australia.
"Agreement" means this 3-Year Revolving Credit Agreement, as it may be
amended, restated, supplemented or otherwise modified and as in effect from time
to time.
"Agreement Accounting Principles" means generally accepted accounting
principles as in effect in the United States from time to time, applied in a
manner consistent with that used in preparing the financial statements of the
Company referred to in Section 5.4; provided, however, that except as provided
in Section 10.8, with respect to the calculation of financial ratios and other
financial tests required by this Agreement, "Agreement Accounting Principles"
means generally accepted accounting principles as in effect in the United States
as of the date of this Agreement, applied in a manner consistent with that used
in preparing the financial statements of the Company referred to in Section 5.4
hereof.
"Alternate Base Rate" means, for any day, a fluctuating rate of
interest per annum equal to the higher of (i) the Prime Rate for such day and
(ii) the sum of (a) the Federal Funds Effective Rate for such day and (b)
one-half of one percent (0.5%) per annum.
"Applicable Commitment Fee Rate" means, at any time, the percentage
rate per annum at which Commitment Fees are accruing on unused portion of the
Aggregate Commitment at such time as set forth in the Pricing Schedule.
"Applicable Margin" means, with respect to Eurocurrency Advances at any
time, the percentage rate per annum which is applicable at such time with
respect to Eurocurrency Advances as set forth in the Pricing Schedule.
"Applicable Performance LC Fee" means, with respect to Performance LCs
at any time, the percentage rate per annum which is applicable at such time with
respect to Performance LCs as set forth in the Pricing Schedule.
2
"Approximate Equivalent Amount" of any currency with respect to any
amount of Dollars shall mean the Equivalent Amount of such currency with respect
to such amount of Dollars on or as of such date, rounded up to the nearest whole
unit of such currency as determined by the Administrative Agent from time to
time.
"Arranger" means Banc One Capital Markets, Inc., a Delaware
corporation, and its successors, in its capacity as Lead Arranger and Sole Book
Runner.
"Article" means an article of this Agreement unless another document is
specifically referenced.
"Assignment Agreement" is defined in Section 13.3.1.
"Assumption Letter" means a letter of a Subsidiary of the Company
addressed to the Administrative Agent and the Lenders, and acknowledged by the
Administrative Agent, in substantially the form of Exhibit I hereto, pursuant to
which such Subsidiary agrees to become a "Subsidiary Borrower" and agrees to be
bound by the terms and conditions hereof.
"Authorized Officer" means any of the chief executive officer,
president, chief operating officer, chief financial officer, chief accounting
officer or treasurer of the Company, acting singly.
"Available Aggregate Commitment" means, at any time, the Aggregate
Commitment then in effect minus the Aggregate Outstanding Credit Exposure at
such time.
"Bank One" means Bank One, NA, a national banking association having
its principal office in Chicago, Illinois, in its individual capacity, and its
successors.
"Benefit Plan" shall mean a defined benefit plan as defined in Section
3(35) of ERISA (other than a Multiemployer Plan) in respect of which the Company
or any ERISA Affiliate is, or within the immediately preceding six (6) years
was, an "employer" as defined in Section 3(5) of ERISA.
"Borrower" means, as applicable, any of the Company or any of the
Subsidiary Borrowers, together with their respective permitted successors and
assigns, and "Borrowers" means, collectively, the Company and the Subsidiary
Borrowers.
"Borrowing Date" means a date on which an Advance is made hereunder.
"Borrowing Notice" is defined in Section 2.8.
"Business Day" means (i) with respect to any borrowing, payment or rate
selection of Eurocurrency Advances, a day (other than a Saturday or Sunday) on
which banks generally are open in Chicago, Illinois for the conduct of
substantially all of their commercial lending activities, interbank wire
transfers can be made on the Fedwire system and dealings in Dollars and the
other Agreed Currencies are carried on in the London interbank market (and, if
the Advances which are the subject of such borrowing, payment or rate selection
are denominated in euro, a day upon which such clearing system as is determined
by the Administrative Agent to be
3
suitable for clearing or settlement of the euro is open for business) and (ii)
for all other purposes, a day (other than a Saturday or Sunday) on which banks
generally are open in Chicago, Illinois for the conduct of substantially all of
their commercial lending activities and interbank wire transfers can be made on
the Fedwire system.
"Capitalized Lease" of a Person means any lease of Property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Capital Stock" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership, partnership
interests (whether general or limited) and (iv) any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing Person.
"Cash Equivalent Investments" means, as to any Person, (i) securities
issued or directly and fully guaranteed or insured by the United States or any
agency or instrumentality thereof (provided that the full faith and credit of
the United States is pledged in support thereof) having maturities of not more
than one year from the date of acquisition, (ii) time deposits and certificates
of deposit of any investment grade commercial bank having, or which is the
principal banking subsidiary of an investment grade bank holding company
organized under the laws of the United States, any State thereof, the District
of Columbia or any foreign jurisdiction having capital, surplus and undivided
profits aggregating in excess of $500,000,000, with maturities of not more than
one year from the date of acquisition by such Person, (iii) repurchase
obligations with a term of not more than ninety (90) days for underlying
securities of the types described in clause (i) above entered into with any bank
meeting the qualifications specified in clause (ii) above, provided that such
repurchase obligations are secured by a first priority security interest in such
underlying securities which have, on the date of purchase thereof, a fair market
value of at least 100% of the amount of the repurchase obligations, (iv)
commercial paper issued by any Person incorporated in the United States rated at
least A-1 by S&P or P-1 by Moody's and in each case maturing not more than 270
days after the date of acquisition by such Person, (v) investments in money
market funds substantially all of the assets of which are comprised of
securities of the types described in clauses (i) through (iv) above, and (vi)
demand deposit accounts maintained in the ordinary course of business.
"Change" is defined in Section 3.2.
"Change in Control" means (i) the Johnson Family shall at any time fail
to own stock having, in the aggregate, votes sufficient to elect at least a
fifty-one percent (51%) majority of the Board of Directors of the Company, (ii)
the acquisition by any Person, or two or more Persons acting in concert, of
beneficial ownership (within the meaning of Rule 13d-3 of the Securities and
Exchange Commission under the Securities Exchange Act of 1934), directly or
4
indirectly, of thirty percent (30%) or more of the outstanding shares of voting
stock of the Company; or (iii) the majority of the Board of Directors of the
Company fails to consist of Continuing Directors; or (iv) except as expressly
permitted under the terms of this Agreement, the Company consolidates with or
merges into another Person or conveys, transfers or leases all or substantially
all of its property to any Person, or any Person consolidates with or merges
into the Company, in either event pursuant to a transaction in which the
outstanding Capital Stock of the Company is reclassified or changed into or
exchanged for cash, securities or other property; or (v) except as otherwise
expressly permitted under the terms of this Agreement, the Company shall cease
to own and control, directly or indirectly, all of the economic and voting
rights associated with all of the outstanding Capital Stock of each of the
Company's Subsidiaries or shall cease to have the power, directly or indirectly,
to elect all of the members of the board of directors of each of the Company's
Subsidiaries.
"Closing Date" means August 31, 2001.
"Collateral Shortfall Amount" is defined in Section 8.1.
"Commitment" means, for each Lender, the obligation of such Lender to
make Revolving Loans to, and participate in Facility LCs issued upon the
application of, a Borrower in an aggregate amount not exceeding the amount set
forth on the Commitment Schedule or in an Assignment Agreement executed pursuant
to Section 13.3, as it may be modified as a result of any assignment that has
become effective pursuant to Section 13.3.2 or as otherwise modified from time
to time pursuant to the terms hereof.
"Commitment Fee" is defined in Section 2.6.1.
"Commitment Schedule" means the Schedule identifying each Lender's
Commitment as of the Closing Date attached hereto and identified as such.
"Company" means Johnson Outdoors Inc., a Wisconsin corporation, and its
permitted successors and assigns (including, without limitation, a
debtor-in-possession on its behalf).
"Computation Date" is defined in Section 2.2.
"Consolidated Net Income" means, with reference to any period, the net
after-tax income (or loss) of the Company and its Subsidiaries calculated on a
consolidated basis for such period determined in accordance with Agreement
Accounting Principles.
"Consolidated Net Worth" means, as of the date of any determination
thereof, the amount of the par or stated value of all outstanding capital stock,
capital surplus and retained earnings of the Company and its Subsidiaries, net
of all cumulative translation adjustments and contingent compensation
adjustments determined on a consolidated basis in accordance with Agreement
Accounting Principles.
"Consolidated Tangible Net Worth" means the consolidated stockholders'
equity of the Company and its Subsidiaries minus, to the extent included as
assets in determining Consolidated Net Worth, the net book value of all (i)
goodwill, including, without limitation, the excess of cost over book value of
any asset, (ii) organization or experimental expenses, (iii) unamortized debt
5
discount and expense, (iv) patents, trademarks, trade names and copyrights, (v)
treasury stock, (vi) franchises, licenses and permits, and (vii) other assets
which are deemed intangible assets under Agreement Accounting Principles.
"Consolidated Total Assets" means the total amount of all assets of the
Company and its consolidated Subsidiaries, and including amounts attributable to
minority interests in Affiliates of the Company to the extent deducted in
calculating the Consolidated Total Assets of the Company and its Subsidiaries
but only to the extent such Affiliate shall be a Guarantor hereunder, calculated
on a consolidated basis as of such time in accordance with Agreement Accounting
Principles.
"Continuing Director" means, with respect to any Person as of any date
of determination, any member of the board of directors of such Person who (a)
was a member of such board of directors on the Closing Date, or (b) was
nominated for election or elected to such board of directors with the approval
of the required majority of the Continuing Directors who were members of such
board at the time of such nomination or election; provided that any individual
who is so elected or nominated in connection with a merger, consolidation,
acquisition or similar transaction shall not be a Continuing Director unless
such individual was a Continuing Director prior thereto.
"Contractual Obligation" of any Person shall mean any provision of any
security issued by such Person or of any agreement, instrument or undertaking
under which such Person is obligated or by which it or any of the property owned
by it is bound.
"Conversion/Continuation Notice" is defined in Section 2.10.
"Credit Extension" means the making of an Advance or the issuance of a
Facility LC hereunder.
"Credit Extension Date" means the Borrowing Date for an Advance or the
issuance date for a Facility LC.
"Default" means an event described in Article VII.
"Designated Lender" means, with respect to each Designating Lender,
each Eligible Designee designated by such Designating Lender pursuant to Section
13.1.2.
"Designating Lender" means, with respect to each Designated Lender, the
Lender that designated such Designated Lender pursuant to Section 13.1.2.
"Designation Agreement" is defined in Section 13.1.2.
"Disqualified Stock" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the holder thereof, in whole or in part, on or prior to the date
that is ninety-one (91) days after the Facility Termination Date.
6
"DOL" shall mean the United States Department of Labor and any
successor department or agency.
"Dollar Amount" of any currency at any date shall mean (i) the amount
of such currency if such currency is Dollars or (ii) the equivalent in such
currency of such amount of Dollars if such currency is any currency other than
Dollars, calculated on the basis of the arithmetical mean of the buy and sell
spot rates of exchange of the Administrative Agent for such currency on the
London market at 11:00 a.m., London time, on or as of the most recent
Computation Date provided for in Section 2.2.
"Dollars" and "$" shall mean the lawful currency of the United States
of America.
"Domestic Subsidiary" means a Subsidiary of the Company organized under
the laws of a jurisdiction located in the United States of America.
"EBITDA" shall mean, for any period for the Company and its
consolidated Subsidiaries, the sum of the amounts for such period, without
duplication, calculated in each case in accordance with Agreement Accounting
Principles, of (i) Net Income, plus (ii) Interest Expense to the extent deducted
in computing Net Income, plus (iii) charges against income for foreign, federal,
state and local taxes to the extent deducted in computing Net Income, plus (iv)
depreciation expense to the extent deducted in computing Net Income, plus (v)
amortization expense, including, without limitation, amortization of goodwill
and other intangible assets to the extent deducted in computing Net Income, plus
(vi) any other non-recurring charges to the extent deducted in computing Net
Income, minus (vii) any non-recurring credits to the extent added in computing
Net Income, plus (viii) non-recurring after-tax losses (or minus non-recurring
after-tax gains); provided, that the aggregate adjustment pursuant to clauses
(vi) through (viii) of this definition shall not exceed $2,000,000 for the
four-quarter period ending on such date (exclusive of any such adjustments for
the closing of the Escape Sailboats operation in Portsmouth, Rhode Island and
the closing of certain of the Necky Kayak operations located in Abbotsfort,
British Columbia (collectively, the "Identified Plants") in an aggregate amount
not to exceed $2,500,000).
"Eligible Currency" means any currency other than Dollars (i) that is
readily available, (ii) that is freely traded, (iii) in which deposits are
customarily offered to banks in the London interbank market, (iv) which is
convertible into Dollars in the international interbank market and (v) as to
which an Equivalent Amount may be readily calculated. If, after the designation
by the Lenders of any currency as an Agreed Currency, (x) currency control or
other exchange regulations are imposed in the country in which such currency is
issued with the result that different types of such currency are introduced, (y)
such currency is, in the determination of the Administrative Agent, no longer
readily available or freely traded or (z) in the determination of the
Administrative Agent, an Equivalent Amount of such currency is not readily
calculable, the Administrative Agent shall promptly notify the Lenders and the
Borrowers, and such currency shall no longer be an Agreed Currency until such
time as all of the Lenders agree to reinstate such currency as an Agreed
Currency and promptly, but in any event within five Business Days of receipt of
such notice from the Administrative Agent, the Borrowers shall repay all Loans
in such affected currency or convert such Loans into Loans in Dollars or another
Agreed Currency, subject to the other terms set forth in Article II.
7
"Eligible Designee" means a special purpose corporation, partnership,
limited partnership or limited liability company that is administered by a
Lender or an Affiliate of a Lender and (i) is organized under the laws of the
United States of America or any state thereof, (ii) is engaged primarily in
making, purchasing or otherwise investing in commercial loans in the ordinary
course of its business and (iii) issues (or the parent of which issues)
commercial paper rated at least A-1 or the equivalent thereof by S&P or the
equivalent thereof by Moody's.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating to
(i) the protection of the environment, (ii) the effect of the environment on
human health, (iii) emissions, discharges or releases of pollutants,
contaminants, hazardous substances or wastes into surface water, ground water or
land, or (iv) the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of pollutants, contaminants, hazardous
substances or wastes or the clean-up or other remediation thereof.
"Equivalent Amount" of any currency with respect to any amount of
Dollars at any date shall mean the equivalent in such currency of such amount of
Dollars, calculated on the basis of the arithmetical mean of the buy and sell
spot rates of exchange of the Administrative Agent for such other currency at
11:00 a.m., London time, on the date on or as of which such amount is to be
determined.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, including (unless the context otherwise requires) any
rules or regulations promulgated thereunder.
"ERISA Affiliate" shall mean any (i) corporation which is a member of
the same controlled group of corporations (within the meaning of Section 414(b)
of the IRC) as the Company, (ii) partnership or other trade or business (whether
or not incorporated) under common control (within the meaning of Section 414(c)
of the IRC) with the Company, and (iii) member of the same affiliated service
group (within the meaning of Section 414(m) of the IRC) as the Company, any
corporation described in clause (i) above or any partnership or trade or
business described in clause (ii) above.
"euro" and/or "EUR" means the euro referred to in Council Regulation
(EC) No. 1103/97 dated June 17, 1997 passed by the Council of the European
Union, or, if different, the then lawful currency of the member states of the
European Union that participate in the third stage of Economic and Monetary
Union.
"Eurocurrency" means any Agreed Currency.
"Eurocurrency Advance" means an Advance which, except as otherwise
provided in Section 2.12, bears interest at a Eurocurrency Rate requested by a
Borrower pursuant to Sections 2.9 and 2.10.
"Eurocurrency Loan" means a Loan which, except as otherwise provided in
Section 2.12, bears interest at a Eurocurrency Rate requested by a Borrower
pursuant to Sections 2.9 and 2.10.
8
"Eurocurrency Payment Office" of the Administrative Agent shall mean,
for each of the Agreed Currencies, the office, branch, affiliate or
correspondent bank of the Administrative Agent specified as the "Eurocurrency
Payment Office" for such currency on the Eurocurrency Payment Office Schedule
hereto or such other office, branch, affiliate or correspondent bank of the
Administrative Agent as it may from time to time specify to the Borrowers and
each Lender as its Eurocurrency Payment Office.
"Eurocurrency Payment Office Schedule" means the Schedule identifying
the Eurocurrency Payment Office of the Administrative Agent for each of the
Agreed Currencies attached hereto identified as such.
"Eurocurrency Rate" means, with respect to a Eurocurrency Advance for
the relevant Interest Period, the sum of (i) the quotient of (a) the
Eurocurrency Reference Rate applicable to such Interest Period, divided by (b)
one minus the Reserve Requirement (expressed as a decimal) applicable to such
Interest Period, plus (ii) the then Applicable Margin, changing as and when the
Applicable Margin changes.
"Eurocurrency Reference Rate" means, with respect to a Eurocurrency
Advance for the relevant Interest Period, the applicable British Bankers'
Association Interest Settlement Rate for deposits in the applicable Agreed
Currency appearing on Reuters Screen FRBD or the applicable Reuters Screen for
such Agreed Currency as of 11:00 a.m. (London time) two Business Days prior to
the first day of such Interest Period, and having a maturity equal to such
Interest Period, provided that, (i) if Reuters Screen FRBD or the applicable
Reuters Screen for such Agreed Currency is not available to the Administrative
Agent for any reason, the applicable Eurocurrency Reference Rate for the
relevant Interest Period shall instead be the applicable British Bankers'
Association Interest Settlement Rate for deposits in the Applicable Agreed
Currency as reported by any other generally recognized financial information
service as of 11:00 a.m. (London time) two Business Days prior to the first day
of such Interest Period, and having a maturity equal to such Interest Period,
and (ii) if no such British Bankers' Association Interest Settlement Rate is
available, the applicable Eurocurrency Reference Rate for the relevant Interest
Period shall instead be the rate determined by the Administrative Agent to be
the rate at which Bank One offers to place deposits in the applicable Agreed
Currency with first-class banks in the London interbank market at approximately
11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period, in the approximate amount of Bank One's relevant Eurocurrency
Loan and having a maturity equal to such Interest Period.
"Excluded Taxes" means, in the case of each Lender or applicable
Lending Installation and the Administrative Agent, taxes imposed on its overall
net income, and franchise taxes imposed on it, by (i) the jurisdiction under the
laws of which such Lender or the Administrative Agent is incorporated or
organized or any political combination or subdivision or taxing authority
thereof or (ii) the jurisdiction in which the Administrative Agent's or Lender's
principal executive office or such Lender's applicable Lending Installation is
located or in which, other than as a result of the transaction evidenced by this
Agreement, the Administrative Agent or Lender otherwise is, or at any time was,
engaged in business.
"Exhibit" refers to an exhibit to this Agreement, unless another
document is specifically referenced.
9
"Existing Credit Agreement" means that certain Amended and Restated
Credit Agreement dated as of April 3, 1998 among the Company, the subsidiary
borrowers parties thereto, the lenders parties thereto, and Bank One, NA
(formerly known as The First National Bank of Chicago), as Administrative Agent,
as the same has been amended, restated, supplemented or otherwise modified from
time to time.
"Facility LC" is defined in Section 2.21.1.
"Facility LC Application" is defined in Section 2.21.3.
"Facility LC Collateral Account" is defined in Section 2.21.11.
"Facility Termination Date" means the earlier of (a) August 31, 2004,
and (b) the date of termination in whole of the Aggregate Commitment pursuant to
Section 2.6 hereof or the Commitments pursuant to Section 8.1 hereof.
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10:00 a.m. (Chicago
time) on such day on such transactions received by the Administrative Agent from
three Federal funds brokers of recognized standing selected by the
Administrative Agent in its sole discretion.
"Financial Contract" of a Person means (i) any exchange-traded or
over-the-counter futures, forward, swap or option contract or other financial
instrument with similar characteristics or (ii) any agreements, devices or
arrangements providing for payments related to fluctuations of interest rates,
exchange rates, forward rates or commodity prices, including, but not limited
to, interest rate swap or exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements, forward rate
currency, interest rate options puts or warrants.
"Fixed Charge Coverage Ratio" is defined in Section 6.21.2.
"Floating Rate" means, for any day, a rate per annum equal to the
Alternate Base Rate for such day, changing when and as the Alternate Base Rate
changes.
"Floating Rate Advance" means an Advance which, except as otherwise
provided in Section 2.12, bears interest at the Floating Rate.
"Floating Rate Loan" means a Loan or portion thereof, which, except as
otherwise provided in Section 2.12, bears interest at the Floating Rate.
"Foreign Pension Plan" means any employee benefit plan as described in
Section 3(3) of ERISA for which the Company or any member of its Controlled
Group is a sponsor or administrator and which (i) is maintained or contributed
to for the benefit of employees of the Company, any of its respective
Subsidiaries or any member of its Controlled Group, (ii) is not
10
covered by ERISA pursuant to Section 4(b)(4) of ERISA, and (iii) under
applicable local law, is required to be funded through a trust or other funding
vehicle.
"Foreign Subsidiary" means a Subsidiary of the Company which is not a
Domestic Subsidiary.
"Funded Debt" of any Person shall mean, without duplication (a) all
Indebtedness for or in respect of borrowed money or which has been incurred in
connection with the acquisition of property or assets, in each case having a
final maturity of more than one year from the date of origin thereof (or which
is renewable or extendible at the option of the obligor for a period or periods
more than one year from the date of origin), including without limitation, the
portion of the "Fixed Purchase Price" (as defined in the Purchase Agreement)
which has been deferred in accordance with Section 2.4 of the Purchase
Agreement, including all payments in respect thereof that are required to be
made within one year from the date of any determination of Funded Debt, whether
or not the obligation to make such payment shall constitute a current liability
of the obligor under Agreement Accounting Principles; provided that any portion
of such obligations incurred in connection with the acquisition of property or
assets specifically including, without limitation, obligations which have been
incurred by such Person in connection with any sale, transfer or issuance of
capital stock in accordance with the terms of this Agreement and which are at
the date of any determination of Funded Debt contingent as to amount or as to
payment shall not be treated as Funded Debt on such date, (b) all Capitalized
Lease Obligations, (c) all guaranties by such Person of Funded Debt of others,
(d) all obligations of such Person with respect to receivables sold or otherwise
discounted with recourse, (e) all obligations of such Person in an aggregate
amount in excess of $1,000,000 with respect to all standby letters of credit and
(f) all Disqualified Stock.
"Granting Bank" is defined in Section 13.1.2.
"Guarantor" shall mean the Company and each Domestic Subsidiary as of
the Closing Date and each other Subsidiary that has become a guarantor of the
Obligations hereunder in accordance with the terms of Section 6.10.
"Guaranty" means that certain Guaranty (and any and all supplements
thereto) executed from time to time by each Guarantor (other than the Company)
in favor of the Administrative Agent for the benefit of itself and the Lenders,
in substantially the form of Exhibit H attached hereto, as amended, restated,
supplemented or otherwise modified from time to time.
"Identified Plants" is defined in the definition of "EBITDA".
"Indebtedness" of a Person means, without duplication, (a) the
obligations of such Person (i) for borrowed money or which has been incurred in
connection with the acquisition of property or assets, (ii) under or with
respect to notes payable and drafts accepted which represent extensions of
credit (whether or not representing obligations for borrowed money) to such
Person, (iii) constituting reimbursement obligations with respect to letters of
credit issued for the account of such Person or (iv) for the deferred purchase
price of property or services (other than current accounts payable arising in
the ordinary course of such Person's business payable on terms customary in the
trade), (b) the obligations of others, whether or not assumed, secured by
11
Liens on property of such Person or payable out of the proceeds of, or
production from, property or assets now or hereafter owned or acquired by such
Person, (c) the Capitalized Lease Obligations of such Person, (d) the
obligations of such Person under guaranties by such Person of any Indebtedness
(other than obligations for borrowed money incurred to finance the purchase of
property leased to such Person pursuant to a Capitalized Lease of such Person)
of any other Person, (e) all Off-Balance Sheet Liabilities of such Person, (f)
all Disqualified Stock and (g) any other obligation or other financial
accommodation which in accordance with Agreement Accounting Principles would be
shown as a liability on the consolidated balance sheet of such Person.
"Interest Expense" means, for any period for any group of Persons, the
total gross interest expense of such group of Persons, whether paid or accrued,
including, without duplication, the interest component of Capitalized Leases,
commitment and letter of credit fees, the discount or implied interest component
of Off-Balance Sheet Liabilities, capitalized interest expense, pay-in-kind
interest expense, amortization of debt discount and net payments (if any)
pursuant to Financial Contracts relating to interest rate protection, all as
determined in conformity with Agreement Accounting Principles.
"Interest Period" means, with respect to a Eurocurrency Advance, a
period of one, two, three or six months or such other period agreed to by the
Lenders and the Borrowers, commencing on a Business Day selected by the
applicable Borrower pursuant to this Agreement. Such Interest Period shall end
on but exclude the day which corresponds numerically to such date one, two,
three or six months or such other agreed upon period thereafter, provided,
however, that if there is no such numerically corresponding day in such next,
second, third or sixth succeeding month or such other succeeding period, such
Interest Period shall end on the last Business Day of such next, second, third
or sixth succeeding month or such other succeeding period. If an Interest Period
would otherwise end on a day which is not a Business Day, such Interest Period
shall end on the next succeeding Business Day, provided, however, that if said
next succeeding Business Day falls in a new calendar month, such Interest Period
shall end on the immediately preceding Business Day.
"Investment" of a Person means any loan, advance (other than
commission, travel and similar advances to officers and employees made in the
ordinary course of business), extension of credit (other than accounts
receivable arising in the ordinary course of business on terms customary in the
trade, but including accounts receivable from other Persons which are not
current assets or did not arise from sales to such other Person in the ordinary
course of business) or contribution of capital by such Person; stocks, bonds,
mutual funds, partnership interests, notes, debentures or other securities owned
by such Person; any deposit accounts and certificate of deposit owned by such
Person; structured notes, Financial Contracts, derivative financial instruments
and other similar instruments or contracts owned by such Person; any other
direct or indirect purchase or acquisition by such Person of any assets other
than assets used in the ordinary course of business; and any non-arms length
transaction by such Person with another Person or any other transfer of assets
by such Person in another Person, with the amount of such Investment being an
amount equal to the net benefit derived by such other Person resulting from any
such transactions.
12
"IRC" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and any successor statute.
"IRS" shall mean the United States Internal Revenue Service and any
successor agency.
"Johnson Family" shall mean at any time, collectively, Samuel C.
Johnson, his wife and their children and grandchildren, the executor or
administrator of the estate or other legal representative of any such Person,
all trusts for the benefit of the foregoing or their heirs or any one or more of
them, and all partnerships, corporations or other entities directly or
indirectly controlled by the foregoing or any one or more of them.
"LC Fee" is defined in Section 2.21.4.
"LC Issuer" means Bank One (or any Affiliate of Bank One designated by
Bank One) or any of the other Lenders, as applicable, in its respective capacity
as issuer of Facility LCs hereunder.
"LC Obligations" means, at any time, the sum, without duplication, of
(i) the aggregate undrawn stated amount of all Facility LCs outstanding at such
time plus (ii) the aggregate unpaid amount at such time of all Reimbursement
Obligations.
"LC Payment Date" is defined in Section 2.29.5.
"Lenders" means the lending institutions listed on the signature pages
of this Agreement and their respective successors and assigns. Unless otherwise
specified, the term "Lender" includes Bank One in its capacity as Swing Line
Lender.
"Lending Installation" means, with respect to a Lender or the
Administrative Agent, the office, branch, subsidiary or affiliate of such Lender
or the Administrative Agent with respect to each Agreed Currency listed on the
administrative information sheets provided to the Administrative Agent in
connection herewith, or on a Schedule or otherwise selected by such Lender or
the Administrative Agent pursuant to Section 2.18.
"Leverage Ratio" is defined in Section 6.21.1.
"Leverage Ratio (Pricing)" is defined in the Pricing Schedule.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other title retention
agreement, and, in the case of stock, stockholders agreements, voting trust
agreements and all similar arrangements).
"Loan" means a Revolving Loan or a Swing Line Loan, as applicable.
"Loan Documents" means this Agreement, the Facility LC Applications,
the Guaranty, each Assumption Letter executed hereunder, and all other
documents, instruments, notes
13
(including any Notes issued pursuant to Section 2.14 (if requested)) and
agreements executed in connection therewith or contemplated thereby, as the same
may be amended, restated or otherwise modified and in effect from time to time.
"Material Adverse Effect" means a material adverse effect on (i) the
business, Property, condition (financial or otherwise), operations, performance,
properties, results of operations or prospects of the Company, or the Company
and its Subsidiaries taken as a whole, (ii) the ability of the Company or any of
its Subsidiaries to perform its respective obligations under the Loan Documents
to which it is a party, or (iii) the validity or enforceability of any of the
Loan Documents or the rights or remedies of the Administrative Agent, the LC
Issuers or the Lenders thereunder.
"Material Indebtedness" is defined in Section 7.5.
"Maximum Eurocurrency Amount" means $20,000,000.
"Modify" and "Modification" are defined in Section 2.21.1.
"Moody's" means Moody's Investors Service, Inc. and any successor
thereto.
"Multiemployer Plan" shall mean a "multiemployer plan" as defined in
Section 4001(a) (3) of ERISA which is, or within the immediately preceding six
(6) years was, contributed to by either the Company or any ERISA Affiliate.
"National Currency Unit" means the unit of currency (other than a euro
unit) of each member state of the European Union that participates in the third
stage of Economic and Monetary Union.
"Net Income" means, for any period for any group of Persons, the net
earnings (or loss) after taxes of such group of Persons on a consolidated basis
for such period taken as a single accounting period determined in conformity
with Agreement Accounting Principles.
"Non-U.S. Lender" is defined in Section 3.5(iv).
"Note" is defined in Section 2.14.
"Notice of Assignment" is defined in Section 13.3.2.
"Obligations" means all Loans, Reimbursement Obligations, advances,
debts, liabilities, obligations, covenants and duties owing by the Borrowers to
any of the Administrative Agent, any LC Issuer, any Lender, the Arranger, any
affiliate of the Administrative Agent, any LC Issuer, or any Lender, the
Arranger, or any indemnitee under the provisions of Section 10.6 or any other
provisions of the Loan Documents, in each case of any kind or nature, present or
future, arising under this Agreement or any other Loan Document, whether or not
evidenced by any note, guaranty or other instrument, whether or not for the
payment of money, whether arising by reason of an extension of credit, loan,
foreign exchange risk, guaranty, indemnification, or in any other manner,
whether direct or indirect (including those acquired by assignment), absolute or
contingent, due or to become due, now existing or hereafter arising and however
acquired.
14
The term includes, without limitation, all interest, charges, expenses, fees,
attorneys' fees and disbursements, paralegals' fees (in each case whether or not
allowed), and any other sum chargeable to the Company or any of its Subsidiaries
under this Agreement or any other Loan Document.
"Off-Balance Sheet Liability" of a Person means (i) any repurchase
obligation or liability of such Person or any of its Subsidiaries with respect
to receivables sold by such Person or any of its Subsidiaries (calculated to
include the unrecovered investment of purchasers or transferees of receivables
or any other obligation of the Company or such transferor to
purchasers/transferees of interests in receivables or the agent for such
purchasers/transferees), (ii) any liability under any sale and leaseback
transaction which is not a Capitalized Lease, (iii) any liability under any
financing lease or Synthetic Lease or "tax ownership operating lease"
transaction entered into by such Person, including any Synthetic Lease
Obligations, or (iv) any obligation arising with respect to any other
transaction which is the functional equivalent of or takes the place of
borrowing but which does not constitute a liability on the consolidated balance
sheets of such Person, but excluding from this clause (iv) Operating Leases.
"Operating Lease" of a Person means any lease of Property (other than a
Capitalized Lease) by such Person as lessee which has an original term
(including any required renewals and any renewals effective at the option of the
lessor) of one year or more.
"Other Taxes" is defined in Section 3.5(ii).
"Outstanding Credit Exposure" means, as to any Lender at any time, the
sum of (i) the aggregate principal amount of its Revolving Loans outstanding at
such time, plus (ii) an amount equal to its share of the obligations to purchase
participations in Swing Line Loans, plus (iii) an amount equal to its Pro Rata
Share of the LC Obligations at such time.
"Participants" is defined in Section 13.2.1.
"Payment Date" means the last day of each March, June, September and
December and the Facility Termination Date.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"Performance LC" means a Facility LC that is a documentary letter of
credit which is drawable upon presentation of documents evidencing the sale or
shipment of goods purchased by the Company or a Subsidiary in the ordinary
course of its business.
"Permitted Acquisition" is defined in Section 6.15(v).
"Permitted Refinancing Indebtedness" means any replacement, renewal,
refinancing or extension of any Indebtedness permitted by this Agreement that
(i) does not exceed the aggregate principal amount (plus accrued interest and
any applicable premium and associated fees and expenses) of the Indebtedness
being replaced, renewed, refinanced or extended, (ii) does not have a Weighted
Average Life to Maturity at the time of such replacement, renewal, refinancing
or extension that is less than the Weighted Average Life to Maturity of the
Indebtedness being replaced, renewed, refinanced or extended, (iii) does not
rank at the time of such replacement,
15
renewal, refinancing or extension senior to the Indebtedness being replaced,
renewed, refinanced or extended, and (iv) does not contain terms (including,
without limitation, terms relating to security, amortization, interest rate,
premiums, fees, covenants, event of default and remedies) materially less
favorable to the Borrowers or to the Lenders than those applicable to the
Indebtedness being replaced, renewed, refinanced or extended.
"Person" means any natural person, corporation, firm, joint venture,
partnership, limited liability company, association, enterprise, trust or other
entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof.
"Plan" means an employee benefit plan which is covered by Title IV of
ERISA or subject to the minimum funding standards under Section 412 of the Code
as to which the Company or any member of its Controlled Group may have any
liability.
"Pricing Schedule" means the Schedule identifying the Applicable Margin
and Applicable Commitment Fee Rate attached hereto identified as such.
"Prime Rate" means a rate per annum equal to the prime rate of interest
announced from time to time by Bank One or its parent (which is not necessarily
the lowest rate charged to any customer), changing when and as said prime rate
changes.
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets owned,
leased or operated by such Person.
"Pro Rata Share" means, with respect to a Lender, a portion equal to a
fraction the numerator of which is such Lender's Commitment at such time (in
each case, as adjusted from time to time in accordance with the provisions of
this Agreement) and the denominator of which is the Aggregate Commitment at such
time, or, if the Aggregate Commitment has been terminated, a fraction the
numerator of which is such Lender's Outstanding Credit Exposure at such time and
the denominator of which is the sum of the Aggregate Outstanding Credit Exposure
at such time.
"Purchase Agreement" means that certain Share Purchase Agreement dated
as of July 11, 1997 by and among the Company, Uwatec AG, Heinz Ruchti and Karl
Leemann.
"Purchase Price" means the total consideration and other amounts
payable in connection with any Acquisition or Investment, including, without
limitation, any portion of the consideration payable in cash, the value of any
Capital Stock or other equity interests of the Company or any Subsidiary issued
as consideration for such Acquisition or Investment, all Indebtedness,
liabilities and contingent obligations incurred or assumed in connection with
such Acquisition or Investment and all transaction costs and expenses incurred
in connection with such Acquisition or Investment.
"Purchasers" is defined in Section 13.3.1.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor thereto
or other regulation or official
16
interpretation of said Board of Governors relating to reserve requirements
applicable to member banks of the Federal Reserve System.
"Regulation T" means Regulation T of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by and to brokers and dealers of securities for the purpose
of purchasing or carrying margin stock (as defined therein).
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks, non-banks and non-broker lenders for the purpose
of purchasing or carrying margin stocks applicable to member banks of the
Federal Reserve System.
"Regulation X" means Regulation X of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by foreign lenders for the purpose of purchasing or carrying
margin stock (as defined therein).
"Reimbursement Obligations" means with respect to any LC Issuer, at any
time, the aggregate of all obligations of the Borrowers then outstanding under
Section 2.21 to reimburse such LC Issuer for amounts paid by such LC Issuer in
respect of any one or more drawings under Facility LCs issued by such LC Issuer;
or, as the context may require, all such Reimbursement Obligations then
outstanding to reimburse all of the LC Issuers.
"Rentals" means the aggregate fixed amounts payable by the Company and
its Subsidiaries on a consolidated basis under any lease of real or personal
property having an original term (including any required renewals or any
renewals at the option of the lessor or lessee) of one year or more, but does
not include any amounts payable under Capitalized Leases.
"Reportable Event" shall mean any Reportable Event as defined in
Section 4043 of ERISA or the regulations thereunder for which the 30-day notice
requirement has not been waived by the PBGC.
"Required Lenders" means three (3) or more Lenders in the aggregate
having greater than fifty percent (50%) of the Aggregate Commitment or, if the
Aggregate Commitment has been terminated, three (3) or more Lenders in the
aggregate holding greater than fifty percent (50%) of the Aggregate Outstanding
Credit Exposure.
"Reserve Requirement" means, with respect to an Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on
"Eurocurrency liabilities" (as defined in Regulation D).
"Revolving Loan" means, with respect to a Lender, such Lender's loan
made pursuant to its commitment to lend set forth in Section 2.1 (or any
conversion or continuation thereof).
"Risk Based Capital Guidelines" is defined in Section 3.2.
17
"S&P" means Standard and Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc. and any successor thereto.
"Schedule" refers to a specific schedule to this Agreement, unless
another document is specifically referenced.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Single Employer Plan" means a Plan maintained by the Company or any
member of its Controlled Group for employees of the Company or any member of its
Controlled Group.
"Standby LC" means any Facility LC other than a Performance LC.
"Subsidiary" of a Person means (i) any corporation more than fifty
percent (50%) of the outstanding securities having ordinary voting power of
which shall at the time be owned or controlled, directly or indirectly, by such
Person or by one or more of its Subsidiaries or by such Person and one or more
of its Subsidiaries, or (ii) any partnership, limited liability company,
association, joint venture or similar business organization more than fifty
percent (50%) of the ownership interests having ordinary voting power of which
shall at the time be so owned or controlled. Unless otherwise expressly
provided, all references herein to a "Subsidiary" shall mean a Subsidiary of the
Company.
"Subsidiary Borrower" means each of the Company's Subsidiaries listed
on Schedule 1.1, and any other Subsidiaries of the Company duly designated by
the Company pursuant to Section 2.22 to request Credit Extensions hereunder,
which Subsidiary shall have delivered to the Administrative Agent an Assumption
Letter in accordance with Section 2.22 and such other documents as may be
required pursuant to this Agreement, in each case, together with its respective
successors and assigns, including a debtor-in-possession on behalf of such
Subsidiary Borrower.
"Substantial Portion" means, with respect to the Property of the
Company and its Subsidiaries, Property which (i) represents more than ten
percent (10%) of the consolidated assets of the Company and its Subsidiaries as
would be shown in the consolidated financial statements of the Company and its
Subsidiaries as at the end of the four fiscal quarter period ending with the
fiscal quarter immediately prior to the fiscal quarter in which such
determination is made, or (ii) is responsible for more than ten percent (10%) of
the Consolidated Net Income of the Company and its Subsidiaries as reflected in
the financial statements referred to in clause (i) above.
"Swing Line Borrowing Notice" is defined in Section 2.2.2.
"Swing Line Commitment" means the obligation of the Swing Line Lender
to make Swing Line Loans up to a maximum principal amount of $10,000,000 at any
one time outstanding.
"Swing Line Lender" means Bank One or such other Lender which may
succeed to its rights and obligations as Swing Line Lender pursuant to the terms
of this Agreement.
18
"Swing Line Loan" means a Loan made available to the Borrowers by the
Swing Line Lender pursuant to Section 2.2.
"Synthetic Lease" means a so-called "synthetic" lease that is not
treated as a capital lease under Agreement Accounting Principles, but that is
treated as a financing under the Code.
"Synthetic Lease Obligations" means, collectively, the payment
obligations of the Company or any of its Subsidiaries pursuant to a Synthetic
Lease.
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings, and any and all liabilities with
respect to the foregoing, but excluding Excluded Taxes.
"Termination Event" shall mean (i) a Reportable Event with respect to
any Benefit Plan; (ii) the withdrawal of the Company or any ERISA Affiliate from
a Benefit Plan during a plan year in which the Company or such ERISA Affiliate
was a "substantial employer" as defined in Section 4001(a) (2) of ERISA; (iii)
the imposition of an obligation on the Company or any ERISA Affiliate under
Section 4041 of ERISA to provide affected parties written notice of intent to
terminate a Benefit Plan in a distress termination described in Section 4041(c)
of ERISA; (iv) the institution by the PBGC of proceedings to terminate a Benefit
Plan; (v) any event or condition which might constitute grounds under Section
4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Benefit Plan; or (vi) the partial or complete withdrawal of the
Company or any ERISA Affiliate from a Multiemployer Plan.
"Total Funded Debt" shall mean, without duplication, Funded Debt of the
Company and its Subsidiaries determined on a consolidated basis eliminating
intercompany items.
"Transferee" is defined in Section 13.4.
"Type" means, with respect to any Advance, its nature as a Floating
Rate Advance or a Eurocurrency Advance.
"Unfunded Liabilities" means the amount (if any) by which the present
value of all vested and unvested accrued benefits under all Single Employer
Plans exceeds the fair market value of all such Plan assets allocable to such
benefits, all determined as of the then most recent valuation date for such
Plans using PBGC actuarial assumptions for single employer plan terminations.
"Unmatured Default" means an event which but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"Weighted Average Life to Maturity" means when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii) the then outstanding principal
amount of such Indebtedness.
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"Wholly-Owned Subsidiary" of a Person means (i) any Subsidiary all of
the outstanding voting securities of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person, or (ii) any partnership, limited liability company,
association, joint venture or similar business organization 100% of the
ownership interests having ordinary voting power of which shall at the time be
so owned or controlled.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms.
Any accounting terms used in this Agreement which are not specifically
defined herein shall have the meanings customarily given them in accordance with
Agreement Accounting Principles.
1.2. References. Any references to the Company's Subsidiaries shall not
in any way be construed as consent by the Administrative Agent or any Lender to
the establishment, maintenance or acquisition of any Subsidiary, except as may
otherwise be permitted hereunder.
1.3. Supplemental Disclosure. At any time at the request of the
Administrative Agent and at such additional times as the Company determines, the
Company shall supplement each schedule or representation herein or in the other
Loan Documents with respect to any matter hereafter arising which, if existing
or occurring at the date of this Agreement, would have been required to be set
forth as an exception to such representation or which is necessary to correct
any information in such representation which has been rendered inaccurate
thereby. Notwithstanding that any such supplement to such representation may
disclose the existence or occurrence of events, facts or circumstances which are
either prohibited by the terms of this Agreement or any other Loan Documents or
which result in the breach of any representation or warranty, such supplement to
such representation shall not be deemed either an amendment thereof or a waiver
of such breach unless expressly consented to in writing by Administrative Agent
and the requisite number of Lenders under Section 8.2, and no such amendments,
except as the same may be consented to in a writing which expressly includes a
waiver, shall be or be deemed a waiver by the Administrative Agent or any Lender
of any Default disclosed therein. Any items disclosed in any such supplemental
disclosures shall be included in the calculation of any limits, baskets or
similar restrictions contained in this Agreement or any of the other Loan
Documents.
ARTICLE II
THE CREDITS
2.1. Commitment. From and including the date of this Agreement and
prior to the Facility Termination Date, upon the satisfaction of the conditions
precedent set forth in Section 4.1, 4.2 and 4.3, as applicable, each Lender
severally and not jointly agrees, on the terms and conditions set forth in this
Agreement, to (i) make Revolving Loans to the Borrowers in Agreed Currencies and
(ii) participate in Facility LCs issued upon the request of the Borrowers in
Agreed Currencies, from time to time in amounts not to exceed in the aggregate
at any one time outstanding the Dollar Amount of its Pro Rata Share of the
Available Aggregate Commitment;
20
provided that (i) at no time shall the Aggregate Outstanding Credit Exposure
hereunder exceed the Aggregate Commitment, (ii) at no time shall the aggregate
outstanding Dollar Amount of all Eurocurrency Advances denominated in an Agreed
Currency other than Dollars exceed the Maximum Eurocurrency Amount, and (iii)
all Floating Rate Loans shall be made in Dollars. Subject to the terms of this
Agreement, the Borrowers may borrow, repay and reborrow Revolving Loans at any
time prior to the Facility Termination Date. The Commitments to lend hereunder
shall expire automatically on the Facility Termination Date. The LC Issuers will
issue Facility LCs hereunder on the terms and conditions set forth in Section
2.21.
2.2. Swing Line Loans.
2.2.1. Amount of Swing Line Loans. Upon the satisfaction of the
conditions precedent set forth in Section 4.2 and, if such Swing Line Loan is to
be made on the date of the initial Advance hereunder, the satisfaction of the
conditions precedent set forth in Section 4.1 and 4.3 as well, from and
including the date of this Agreement and prior to the Facility Termination Date,
the Swing Line Lender agrees, on the terms and conditions set forth in this
Agreement, to make Swing Line Loans, in Dollars, to the Borrowers from time to
time in an aggregate principal amount not to exceed the Swing Line Commitment,
provided that the Aggregate Outstanding Credit Exposure shall not at any time
exceed the Aggregate Commitment, and provided further that at no time shall the
sum of (i) the Swing Line Lender's share of the obligations to participate in
the Swing Line Loans, plus (ii) the outstanding Revolving Loans made by the
Swing Line Lender pursuant to Section 2.1, exceed the Swing Line Lender's
Commitment at such time. Subject to the terms of this Agreement, the Borrowers
may borrow, repay and reborrow Swing Line Loans at any time prior to the
Facility Termination Date.
2.2.2. Borrowing Notice. The applicable Borrower shall deliver to the
Administrative Agent and the Swing Line Lender irrevocable notice (a "Swing Line
Borrowing Notice") not later than 11:00 a.m. (Chicago time) on the Borrowing
Date of each Swing Line Loan, specifying (i) the applicable Borrowing Date
(which date shall be a Business Day), and (ii) the aggregate amount of the
requested Swing Line Loan which shall be an amount not less than $500,000 and
integral multiples of $100,000 in excess thereof. Each Swing Line Loan shall
bear interest on the outstanding principal amount thereof, for each day from and
including the day such Swing Line Loan is made to but excluding the date it is
paid, at a rate per annum equal to the Alternate Base Rate.
2.2.3. Making of Swing Line Loans. Promptly after receipt of a Swing
Line Borrowing Notice, the Administrative Agent shall notify each Lender by fax,
or other similar form of transmission, of the requested Swing Line Loan. Not
later than 2:00 p.m. (Chicago time) on the applicable Borrowing Date, the Swing
Line Lender shall make available the Swing Line Loan, in funds immediately
available in Chicago, to the Administrative Agent at its address specified
pursuant to Article XIV. The Administrative Agent will promptly make the funds
so received from the Swing Line Lender available to the applicable Borrower on
the Borrowing Date at the Administrative Agent's aforesaid address.
2.2.4. Repayment of Swing Line Loans. Each Swing Line Loan shall be
paid in full by the Borrowers on or before the fifth (5th) Business Day after
the Borrowing Date for such Swing Line Loan. In addition, the Swing Line Lender
(i) may at any time in its sole discretion with
21
respect to any outstanding Swing Line Loan, or (ii) shall on the fifth (5th)
Business Day after the Borrowing Date of any Swing Line Loan, require each
Lender (including the Swing Line Lender) to make a Revolving Loan in the amount
of such Lender's Pro Rata Share of such Swing Line Loan (including, without
limitation, any interest accrued and unpaid thereon), for the purpose of
repaying such Swing Line Loan. Not later than 12:00 noon (Chicago time) on the
date of any notice received pursuant to this Section 2.2.4, each Lender shall
make available its required Revolving Loan, in funds immediately available in
Chicago to the Administrative Agent at its address specified pursuant to Article
XIV. Revolving Loans made pursuant to this Section 2.2.4 shall initially be
Floating Rate Loans and thereafter may be continued as Floating Rate Loans or
converted into Eurocurrency Loans in the manner provided in Section 2.10 and
subject to the other conditions and limitations set forth in this Article II.
Unless a Lender shall have notified the Swing Line Lender, prior to its making
any Swing Line Loan, that any applicable condition precedent set forth in
Sections 4.1, 4.2 or 4.3 had not then been satisfied, such Lender's obligation
to make Revolving Loans pursuant to this Section 2.2.4 to repay Swing Line Loans
shall be unconditional, continuing, irrevocable and absolute and shall not be
affected by any circumstances, including, without limitation, (a) any set-off,
counterclaim, recoupment, defense or other right which such Lender may have
against the Administrative Agent, the Swing Line Lender or any other Person, (b)
the occurrence or continuance of a Default or Unmatured Default, (c) any adverse
change in the condition (financial or otherwise) of any Borrower, or (d) any
other circumstances, happening or event whatsoever. In the event that any Lender
fails to make payment to the Administrative Agent of any amount due under this
Section 2.2.4, the Administrative Agent shall be entitled to receive, retain and
apply against such obligation the principal and interest otherwise payable to
such Lender hereunder until the Administrative Agent receives such payment from
such Lender or such obligation is otherwise fully satisfied. In addition to the
foregoing, if for any reason any Lender fails to make payment to the
Administrative Agent of any amount due under this Section 2.2.4, such Lender
shall be deemed, at the option of the Administrative Agent, to have
unconditionally and irrevocably purchased from the Swing Line Lender, without
recourse or warranty, an undivided interest and participation in the applicable
Swing Line Loan in the amount of such Revolving Loan, and such interest and
participation may be recovered from such Lender together with interest thereon
at the Federal Funds Effective Rate for each day during the period commencing on
the date of demand and ending on the date such amount is received. On the
Facility Termination Date, the Borrowers shall repay in full the outstanding
principal balance of the Swing Line Loans.
2.3. Determination of Dollar Amounts; Required Payments; Termination.
2.3.1. Determination of Dollar Amounts. The Administrative Agent will
determine the Dollar Amount of:
(i) each Credit Extension as of the date three Business Days prior to
the Credit Extension Borrowing Date or, if applicable, date of
conversion/continuation of such Credit Extension, and
(ii) all outstanding Credit Extensions on and as of the last Business
Day of each quarter and on any other Business Day elected by the Administrative
Agent in its discretion or upon instruction by the Required Lenders.
22
Each day upon or as of which the Administrative Agent determines Dollar Amounts
as described in the preceding clauses (i) and (ii) is herein described as a
"Computation Date" with respect to each Credit Extensions for which a Dollar
Amount is determined on or as of such day. If at any time the Dollar Amount of
the sum of the aggregate principal amount of all outstanding Credit Extension
(calculated, with respect to those Credit Extensions denominated in Agreed
Currencies other than Dollars, as of the most recent Computation Date with
respect to each such Credit Extension) exceeds the Aggregate Commitment, the
Borrowers shall immediately repay Advances in an aggregate principal amount
sufficient to eliminate any such excess.
2.3.2. Required Payments. Any outstanding Advances and all other unpaid
Obligations shall be paid in full by the Borrowers on the Facility Termination
Date.
2.3.3. Termination. Notwithstanding the termination of this Agreement
on the Facility Termination Date, until all of the Obligations (other than
contingent indemnity obligations) shall have been fully paid and satisfied and
all financing arrangements among the Borrowers and the Lenders hereunder and
under the other Loan Documents shall have been terminated, all of the rights and
remedies under this Agreement and the other Loan Documents shall survive and the
Administrative Agent shall be entitled to retain its security interest in and to
all existing and future collateral (if any).
2.4. Ratable Loans. Each Advance hereunder (other than any Swing Line
Loan) shall consist of Revolving Loans made from the several Lenders ratably in
proportion to the ratio that their respective Commitments bear to the Aggregate
Commitment.
2.5. Types of Advances. The Advances may be Revolving Loans consisting
of Floating Rate Advances or Eurocurrency Advances, or a combination thereof,
selected by the applicable Borrower in accordance with Sections 2.9 and 2.10, or
Swing Line Loans selected by the applicable Borrower in accordance with Section
2.2.
2.6. Commitment Fee; Reductions in Aggregate Commitment; Increases in
Aggregate Commitment.
2.6.1. Commitment Fee. The Borrowers agree to pay to the Administrative
Agent for the account of each Lender a commitment fee (the "Commitment Fee") at
a per annum rate equal to the Applicable Commitment Fee Rate on the daily unused
portion of such Lender's Commitment from the Closing Date to and including the
date on which this Agreement is terminated in full and all Obligations hereunder
have been paid in full pursuant to Section 2.3, payable quarterly in arrears on
each Payment Date hereafter and until all Obligations hereunder have been paid
in full.
2.6.2. Reductions in Aggregate Commitment. The Borrowers may
permanently reduce the Aggregate Commitment in whole, or in part ratably among
the Lenders in a minimum amount of $1,000,000 (and in multiples of $500,000 if
in excess thereof) (or the Approximate Equivalent Amount if denominated in an
Agreed Currency other than Dollars), upon at least three (3) Business Days'
prior written notice to the Administrative Agent of such reduction, which notice
shall specify the amount of any such reduction; provided, however, that the
amount of the Aggregate Commitment may not be reduced below the Dollar Amount of
the Aggregate
23
Outstanding Credit Exposure. All accrued Commitment Fees shall be payable on the
effective date of any termination of all or any part of the obligations of the
Lenders to make Credit Extensions hereunder. For purposes of calculating the
Commitment Fee hereunder, the principal amount of each Credit Extension made in
an Agreed Currency other than Dollars shall be at any time the Dollar Amount of
such Credit Extension as determined on the most recent Computation Date with
respect to such Credit Extension.
2.6.3. Increase of Aggregate Commitment. At any time the Company may,
on the terms set forth below, request that the Aggregate Commitment hereunder be
increased to an amount not to exceed $150,000,000; provided, however, that (i)
an increase in the Aggregate Commitment hereunder may only be made at a time
when no Default or Unmatured Default shall have occurred and be continuing, (ii)
each Lender shall be offered a pro rata share of any requested increase prior to
the Company and the Administrative Agent inviting any additional financial
institutions to become a Lender hereunder, and (iii) no Lender's Commitment
shall be increased under this Section 2.6.3 without its consent. In the event of
such a requested increase in the Aggregate Commitment, any financial institution
which the Company and the Administrative Agent invite to become a Lender or to
increase its Commitment may set the amount of its Commitment at a level agreed
to by the Company (on behalf of all of the Borrowers) and the Administrative
Agent. In the event that the Company and one or more of the Lenders (or other
financial institutions) shall agree upon such an increase in the Aggregate
Commitment (i) the Borrowers, the Administrative Agent and each Lender or other
financial institution increasing its Commitment or extending a new Commitment
shall enter into an amendment to this Agreement setting forth the amounts of the
Commitments, as so increased, providing that the financial institutions
extending new Commitments shall be Lenders for all purposes under this
Agreement, and setting forth such additional provisions as the Administrative
Agent shall consider reasonably appropriate and (ii) the Borrowers shall
furnish, if requested, a new Note to each financial institution that is
extending a new Commitment or increasing its Commitment. No such amendment shall
require the approval or consent of any Lender whose Commitment is not being
increased. Upon the execution and delivery of such amendment as provided above,
and upon satisfaction of such other conditions as the Administrative Agent may
reasonably specify upon the request of the financial institutions that are
extending new Commitments (including, without limitation, the Administrative
Agent administering the reallocation of any outstanding Loans ratably among the
Lenders after giving effect to each such increase in the Aggregate Commitment,
and the delivery of certificates, evidence of corporate authority and legal
opinions on behalf of the Borrowers), this Agreement shall be deemed to be
amended accordingly.
2.7. Minimum Amount of Each Advance. Each Eurocurrency Advance shall be
in the minimum amount of $3,000,000 (and in multiples of $500,000 if in excess
thereof) (or the Approximate Equivalent Amount if denominated in an Agreed
Currency other than Dollars), and each Floating Rate Advance shall be in the
minimum amount of $3,000,000 (and in multiples of $500,000 if in excess
thereof), provided, however, that any Floating Rate Advance may be in the amount
of the Available Aggregate Commitment.
2.8. Principal Payments.
24
2.8.1. Optional Principal Payments. The Borrowers may from time to time
pay, without penalty or premium, all outstanding Floating Rate Advances (other
than Swing Line Loans), or any portion of the outstanding Floating Rate
Advances, in a minimum aggregate amount of $1,000,000 or any integral multiple
of $500,000 in excess thereof, upon prior notice to the Administrative Agent at
or before 12:00 noon (Chicago time) one (1) Business Day prior to the date of
such payment. The Borrowers may from time to time pay, subject to the payment of
any funding indemnification amounts required by Section 3.4 but without penalty
or premium, all outstanding Eurocurrency Ratable Advances, or, in a minimum
aggregate amount of $1,000,000 or any integral multiple of $500,000 in excess
thereof (or the Approximate Equivalent Amount if denominated in an Agreed
Currency other than Dollars), any portion of the outstanding Eurocurrency
Ratable Advances upon five (5) Business Days' prior notice to the Administrative
Agent. The Borrowers may at any time pay, without penalty or premium, all
outstanding Swing Line Loans, or, in a minimum amount of $1,000,000 and
increments of $500,000 in excess thereof, any portion of the outstanding Swing
Line Loans, with notice to the Administrative Agent and the Swing Line Lender by
12:00 noon (Chicago time) on the date of repayment.
2.8.2. Mandatory Principal Payments. Upon the consummation of any
issuance of Indebtedness permitted under Section 6.12(vii), at any time the
Leverage Ratio (determined as of the last day of the most recent fiscal quarter
for which a compliance certificate shall have been delivered in accordance with
Section 6.1) shall be greater than or equal to 3.00 to 1.00, within two (2)
Business Days after the Company's or any of its Subsidiaries' receipt of any net
cash proceeds from such issuance of Indebtedness, the Company shall make a
mandatory prepayment of the Obligations in an amount equal to 100% of such net
cash proceeds. All of the mandatory prepayments made under this Section 2.8.2
shall be applied first to Floating Rate Loans and to any Eurocurrency Rate Loans
maturing on such date and then to subsequently maturing Eurocurrency Rate Loans.
2.9. Method of Selecting Types and Interest Periods for New Advances;
Method of Borrowing; Advances to be Made in euro.
2.9.1. Method of Selecting Types and Interest Periods for New Advances.
Other than with respect to Swing Line Loans (which shall be governed by Section
2.2), the applicable Borrower shall select the Type of Advance and, in the case
of each Eurocurrency Advance, the Interest Period and Agreed Currency applicable
thereto from time to time; provided that there shall be no more than eight (8)
Interest Periods in effect with respect to all of the Revolving Loans at any
time, unless such limit has been waived by the Administrative Agent in its sole
discretion. The applicable Borrower shall give the Administrative Agent
irrevocable notice (a "Borrowing Notice") not later than 10:00 a.m. (Chicago
time) on the Borrowing Date of each Floating Rate Advance, three (3) Business
Days before the Borrowing Date for each Eurocurrency Advance denominated in
Dollars, and four (4) Business Days before the Borrowing Date for each
Eurocurrency Advance denominated in an Agreed Currency other than Dollars,
specifying:
(i) the Borrowing Date, which shall be a Business Day, of such Advance,
(ii) the aggregate amount of such Advance,
25
(iii) the Type of Advance selected, and
(iv) in the case of each Eurocurrency Advance, the Interest Period and
Agreed Currency applicable thereto.
2.9.2. Method of Borrowing. On each Borrowing Date, each Lender shall
make available its Loan or Loans, if any, (i) if such Loan is denominated in
Dollars, not later than noon, Chicago time, in Federal or other funds
immediately available to the Administrative Agent, in Chicago, Illinois at its
address specified in or pursuant to Article XIV and, (ii) if such Loan is
denominated in an Agreed Currency other than Dollars, not later than noon, local
time, in the city of the Administrative Agent's Eurocurrency Payment Office for
such currency, in such funds as may then be customary for the settlement of
international transactions in such currency in the city of and at the address of
the Administrative Agent's Eurocurrency Payment Office for such currency. Unless
the Administrative Agent determines that any applicable condition specified in
Article IV has not been satisfied, the Administrative Agent will make the funds
so received from the Lenders available to the applicable Borrower at the
Administrative Agent's aforesaid address. Notwithstanding the foregoing
provisions of this Section 2.9.2, to the extent that a Loan made by a Lender
matures on the Borrowing Date of a requested Loan, such Lender shall apply the
proceeds of the Loan it is then making to the repayment of principal of the
maturing Loan.
2.9.3. Advances to be Made in euro. If any Advance would, but for the
provisions of this Section 2.9.3, be capable of being made in either euro or in
a National Currency Unit, such Advance shall be made in euro.
2.10. Conversion and Continuation of Outstanding Advances. Floating
Rate Advances shall continue as Floating Rate Advances unless and until such
Floating Rate Advances are converted into Eurocurrency Advances pursuant to this
Section 2.10 or are repaid in accordance with Section 2.8. Each Eurocurrency
Advance shall continue as a Eurocurrency Advance until the end of the then
applicable Interest Period therefor, at which time:
(i) each such Eurocurrency Advance denominated in Dollars shall be
automatically converted into a Floating Rate Advance unless (x) such
Eurocurrency Advance is or was repaid in accordance with Section 2.8 or (y) the
applicable Borrower shall have given the Administrative Agent a
Conversion/Continuation Notice (as defined below) requesting that, at the end of
such Interest Period, such Eurocurrency Advance continue as a Eurocurrency
Advance for the same or another Interest Period or be converted into a Floating
Rate Advance; and
(ii) each such Eurocurrency Advance denominated in an Agreed Currency
other than Dollars shall automatically continue as a Eurocurrency Advance in the
same Agreed Currency with an Interest Period of one month unless (x) such
Eurocurrency Advance is or was repaid in accordance with Section 2.8, or (y) the
applicable Borrower shall have given the Administrative Agent a
Conversion/Continuation Notice (as defined below) requesting that, at the end of
such Interest Period, such Eurocurrency Advance continue as a Eurocurrency
Advance for the same or another Interest Period.
26
Subject to the terms of Section 2.7, the Borrowers may elect from time to time
to convert all or any part of an Advance of any Type into any other Type or
Types of Advances denominated in the same or any other Agreed Currency; provided
that any conversion of any Eurocurrency Advance shall be made on, and only on,
the last day of the Interest Period applicable thereto. The applicable Borrower
shall give the Administrative Agent irrevocable notice (a
"Conversion/Continuation Notice") of each conversion of an Advance or
continuation of a Eurocurrency Advance not later than 10:00 a.m. (Chicago time)
at least one (1) Business Day, in the case of a conversion into a Floating Rate
Advance, three (3) Business Days, in the case of a conversion into or
continuation of a Eurocurrency Advance denominated in Dollars, or four (4)
Business Days, in the case of a conversion into or continuation of a
Eurocurrency Advance denominated in an Agreed Currency other than Dollars, prior
to the date of the requested conversion or continuation, specifying:
(i) the requested date, which shall be a Business Day, of such
conversion or continuation,
(ii) the Agreed Currency, the aggregate amount and Type of the Advance
which is to be converted or continued, and
(iii) the amount of such Advance which is to be converted into or
continued as a Eurocurrency Advance and the duration of the Interest Period
applicable thereto.
Promptly after receipt of any Conversion/Continuation Notice, the Administrative
Agent shall provide the Lenders with notice thereof.
2.11. Changes in Interest Rate, etc. Each Floating Rate Advance shall
bear interest on the outstanding principal amount thereof, for each day from and
including the date such Advance is made or is automatically converted from a
Eurocurrency Advance into a Floating Rate Advance pursuant to Section 2.10, to
but excluding the date it is paid or is converted into a Eurocurrency Advance
pursuant to Section 2.10 hereof, at a rate per annum equal to the Floating Rate
for such day. Changes in the rate of interest on that portion of any Advance
maintained as a Floating Rate Advance will take effect simultaneously with each
change in the Alternate Base Rate. Each Eurocurrency Advance shall bear interest
on the outstanding principal amount thereof from and including the first day of
the Interest Period applicable thereto to (but not including) the last day of
such Interest Period at the interest rate determined by the Administrative Agent
as applicable to such Eurocurrency Advance based upon the applicable Borrower's
selections under Sections 2.9 and 2.10 and otherwise in accordance with the
terms hereof. No Interest Period may end after the Facility Termination Date.
2.12. No Conversion or Continuation of Eurocurrency Advances After
Default; Rates Applicable After Default. Notwithstanding anything to the
contrary contained in Section 2.10, no Advance may be converted or continued as
a Eurocurrency Advance (except with the consent of the Required lenders) when
any Default or Unmatured Default is continuing. During the continuance of a
Default (including the Borrowers' failure to pay any Loan at maturity) the
Required Lenders may, at their option, by notice to the Borrowers (which notice
may be revoked at the option of the Required Lenders notwithstanding any
provision of Section 8.2 requiring unanimous consent of the Lenders to changes
in interest rates), declare that (i) the Advances, all
27
fees or any other Obligations hereunder shall bear interest at the Floating Rate
plus 2% per annum and (ii) the LC Fee shall be increased by 2% per annum,
provided that, during the continuance of a Default under Section 7.6 or 7.7,
such interest rate and such increase in the LC Fee set forth above shall be
applicable to all Credit Extensions, Advances, fees and other Obligations
hereunder without any election or action on the part of the Administrative
Agent, any LC Issuer or any Lender.
2.13. Method of Payment.
(i) Each Advance shall be repaid and each payment of interest thereon
shall be paid in the currency in which such Advance was made or, where such
currency has converted to the euro, in the euro. All payments of the Obligations
hereunder shall be made, without setoff, deduction, or counterclaim, in
immediately available funds to the Administrative Agent at (except as set forth
in the next sentence) the Administrative Agent's address specified pursuant to
Article XIV, or at any other Lending Installation of the Administrative Agent
specified in writing by the Administrative Agent to the Company, by 12:00 noon
(Chicago time) on the date when due and shall (except (i) in the case of
Reimbursement Obligations for which the applicable LC Issuer has not been fully
indemnified by the Lenders or (ii) with respect to repayments of Swing Line
Loans) be applied ratably by the Administrative Agent among the Lenders. All
payments to be made by the Borrowers hereunder in any currency other than
Dollars shall be made in such currency on the date due in such funds as may then
be customary for the settlement of international transactions in such currency
for the account of the Administrative Agent, at its Eurocurrency Payment Office
for such currency and shall be applied ratably by the Administrative Agent among
the Lenders. Each payment delivered to the Administrative Agent for the account
of any Lender shall be delivered promptly by the Administrative Agent to such
Lender in the same type of funds that the Administrative Agent received at, (a)
with respect to Floating Rate Loans and Eurocurrency Loans denominated in
Dollars, such Lender's address specified pursuant to Article XIV or at any
Lending Installation specified in a notice received by the Administrative Agent
from such Lender and (b) with respect to Eurocurrency Loans denominated in an
Agreed Currency other than Dollars, in the funds received from the Borrowers at
the address of the Administrative Agent's Eurocurrency Payment Office for such
currency. Each reference to the Administrative Agent in this Section 2.13 shall
also be deemed to refer, and shall apply equally, to the applicable LC Issuer,
in the case of payments required to be made by the applicable Borrower to such
LC Issuer pursuant to Section 2.21.6. The Administrative Agent is hereby
authorized to charge the account of the Borrowers maintained with Bank One or
any of its Affiliates for each payment of principal, interest and fees as it
becomes due hereunder.
(ii) Notwithstanding the foregoing provisions of this Section, if,
after the making of any Advance in any currency other than Dollars, currency
control or exchange regulations are imposed in the country which issues such
currency with the result that the type of currency in which the Advance was made
(the "Original Currency") no longer exists or any Borrower is not able to make
payment to the Administrative Agent for the account of the Lenders in such
Original Currency, then all payments to be made by any Borrower hereunder in
such currency shall instead be made when due in Dollars in an amount equal to
the Dollar Amount (as of the date of repayment) of such payment due, it being
the intention of the parties hereto that the Borrowers take all risks of the
imposition of any such currency control or exchange regulations.
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For purposes of this Section 2.13(ii), the commencement of the third stage of
European Economic and Monetary Union shall not constitute the imposition of
currency control or exchange regulations.
2.14. Noteless Agreement; Evidence of Indebtedness.
(i) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrowers to such Lender
resulting from each Loan made by such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time hereunder.
(ii) The Administrative Agent shall also maintain accounts in which it
will record (a) the date and the amount of each Revolving Loan made hereunder,
the Agreed Currency and Type thereof and the Interest Period, if any, applicable
thereto, (b) the amount of any principal or interest due and payable or to
become due and payable from any Borrower to each Lender hereunder, (c) the
effective date and amount of each Assignment Agreement delivered to and accepted
by it and the parties thereto pursuant to Section 13.3, (d) the original stated
amount of each Facility LC and the amount of LC Obligations outstanding at any
time, (e) the amount of any sum received by the Administrative Agent hereunder
from the Borrowers and each Lender's share thereof, and (f) all other
appropriate debits and credits as provided in this Agreement, including, without
limitation, all fees, charges, expenses and interest.
(iii) The entries maintained in the accounts maintained pursuant to
clauses (i) and (ii) above shall be prima facie evidence of the existence and
amounts of the Obligations therein recorded; provided, however, that the failure
of the Administrative Agent or any Lender to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrowers to repay
the Obligations in accordance with their terms.
(iv) Any Lender may request that its Loans be evidenced by a promissory
note or, in the case of the Swing Line Lender, promissory notes representing its
Revolving Loans and Swing Line Loans, respectively, substantially in the form of
Exhibit E, with appropriate changes for notes evidencing Swing Line Loans (each,
a "Note"). In such event, the Borrowers shall prepare, execute and deliver to
such Lender such Note or Notes payable to the order of such Lender. Thereafter,
the Loans evidenced by each such Note and interest thereon shall at all times
(including after any assignment pursuant to Section 13.3) be represented by one
or more Notes payable to the order of the payee named therein or any assignee
pursuant to Section 13.3, except to the extent that any such Lender or assignee
subsequently returns any such Note for cancellation and requests that such Loans
once again be evidenced as described in clauses (i) and (ii) above.
2.15. Telephonic Notices. The Borrowers hereby authorize the Lenders
and the Administrative Agent to extend, convert or continue Advances, effect
selections of Types of Advances and transfer funds based on telephonic notices
made by any person or persons the Administrative Agent or any Lender in good
faith believes to be acting on behalf of a Borrower, it being understood that
the foregoing authorization is specifically intended to allow Borrowing Notices
and Conversion/Continuation Notices to be given telephonically. The Borrowers
agree to deliver promptly to the Administrative Agent a written confirmation,
signed by an Authorized
29
Officer, if such confirmation is requested by the Administrative Agent or any
Lender, of each telephonic notice. If the written confirmation differs in any
material respect from the action taken by the Administrative Agent and the
Lenders, the records of the Administrative Agent and the Lenders shall govern
absent manifest error.
2.16. Interest Payment Dates; Interest and Fee Basis. Interest accrued
on each Floating Rate Advance and Swing Line Loan shall be payable in arrears on
each Payment Date, commencing with the first such date to occur after the
Closing Date, on any date on which the Floating Rate Advance or Swing Line Loan
is prepaid, whether due to acceleration or otherwise, and at maturity. Interest
accrued on that portion of the outstanding principal amount of any Floating Rate
Advance converted into a Eurocurrency Advance on a day other than a Payment Date
shall be payable on the date of conversion. Interest accrued on each
Eurocurrency Advance shall be payable on the last day of its applicable Interest
Period, on any date on which the Eurocurrency Advance is prepaid, whether by
acceleration or otherwise, and at maturity; provided, that interest accrued on
each Eurocurrency Advance having an Interest Period longer than three (3) months
shall also be payable on the last day of each three-month interval during such
Interest Period. Interest on Eurocurrency Advances (other than Eurocurrency
Advances denominated in British Pounds Sterling), Swing Line Loans, LC Fees and
Commitment Fees shall be calculated for actual days elapsed on the basis of a
360-day year; interest on Floating Rate Advances for which the Prime Rate is the
basis and Eurocurrency Advances denominated in British Pounds Sterling shall be
calculated for actual days elapsed on the basis of a 365/366-day year. Interest
shall be payable for the day an Advance is made but not for the day of any
payment on the amount paid if payment is received prior to 12:00 noon (Chicago
time) at the place of payment. If any payment of principal of or interest on an
Advance, any fees or any other amounts payable to the Administrative Agent or
any Lender hereunder shall become due on a day which is not a Business Day, such
payment shall be made on the next succeeding Business Day and, in the case of a
principal payment, such extension of time shall be included in computing
interest, fees and commissions in connection with such payment.
2.17. Notification of Advances, Interest Rates, Prepayments and
Commitment Reductions. Promptly after receipt thereof, the Administrative Agent
will notify each Lender of the contents of each Aggregate Commitment reduction
notice, Borrowing Notice, Swing Line Borrowing Notice, Conversion/Continuation
Notice, and repayment notice received by it hereunder. Promptly after notice
from the applicable LC Issuer, the Administrative Agent will notify each Lender
of the contents of each request for issuance of a Facility LC hereunder. The
Administrative Agent will notify each Lender of the interest rate applicable to
each Eurocurrency Advance promptly upon determination of such interest rate and
will give each Lender prompt notice of each change in the Alternate Base Rate.
2.18. Lending Installations. Each Lender may book its Loans and its
participation in any LC Obligations and the LC Issuers may book the Facility LCs
at any Lending Installation selected by such Lender or the applicable LC Issuer,
as the case may be, and may change its Lending Installation from time to time.
All terms of this Agreement shall apply to any such Lending Installation and the
Loans, Facility LCs, participations in LC Obligations and any Notes issued
hereunder shall be deemed held by each Lender or the applicable LC Issuer, as
the case may be, for the benefit of any such Lending Installation. Each Lender
and each LC Issuer may, by written notice to the Administrative Agent and the
Company in accordance with Article XIV,
30
designate replacement or additional Lending Installations through which Loans
will be made by it or Facility LCs will be issued by it and for whose account
Loan payments or payments with respect to Facility LCs are to be made.
2.19. Non-Receipt of Funds by the Administrative Agent. Unless a
Borrower or a Lender, as the case may be, notifies the Administrative Agent
prior to the time on which it is scheduled to make payment to the Administrative
Agent of (i) in the case of a Lender, the proceeds of a Loan or (ii) in the case
of a Borrower, a payment of principal, interest or fees to the Administrative
Agent for the account of the Lenders, that it does not intend to make such
payment, the Administrative Agent may assume that such payment has been made.
The Administrative Agent may, but shall not be obligated to, make the amount of
such payment available to the intended recipient in reliance upon such
assumption. If such Lender or Borrower, as the case may be, has not in fact made
such payment to the Administrative Agent, the recipient of such payment shall,
on demand by the Administrative Agent, repay to the Administrative Agent the
amount so made available together with interest thereon in respect of each day
during the period commencing on the date such amount was so made available by
the Administrative Agent until the date the Administrative Agent recovers such
amount at a rate per annum equal to (x) in the case of payment by a Lender, the
Federal Funds Effective Rate for such day for the first three (3) days and,
thereafter, the interest rate applicable to the relevant Loan or (y) in the case
of payment by a Borrower, the interest rate applicable to the relevant Loan,
including the interest rate applicable pursuant to Section 2.12.
2.20. Replacement of Lender. The Company, on its behalf and on behalf
of the other Borrowers, shall be permitted, from time to time in its discretion,
to remove Lenders from this Agreement and reduce the Aggregate Commitment,
provided that the Aggregate Commitment may not be reduced below $60,000,000 as a
result of removing one or more Lenders pursuant to this Section, and a Lender
may not be removed from the Agreement at any time a Default exists and remains
uncured or unwaived under this Agreement. If the Company elects to terminate the
Commitment of any Lender, it shall give not less than fourteen (14) days' prior
written notice to the Administrative Agent and such Lender. On the effective
date of such termination, the Company shall pay to the Administrative Agent, for
the account of such Lender, in immediately available funds, an amount equal to
all Credit Extensions and other amounts (including accrued interest and fees)
owing to such Lender plus the amounts, if any, owing to such Lender under
Section 3.4 if such payment is not made on the last day of the applicable
Interest Period.
2.21. Facility LCs.
2.21.1. Issuance; Transitional Facility LCs.
(i) Issuance. The LC Issuers hereby agree, on the terms and conditions
set forth in this Agreement, to issue standby and performance letters of credit
in Agreed Currencies (each, together with the letters of credit deemed issued by
the LC Issuers hereunder pursuant to Section 2.21.1(ii), a "Facility LC") and to
renew, extend, increase, decrease or otherwise modify each Facility LC
("Modify," and each such action a "Modification"), from time to time from and
including the date of this Agreement and prior to the Facility Termination Date
upon the request of any Borrower; provided that immediately after each such
Facility LC is issued or Modified, (i) the aggregate amount of the outstanding
LC Obligations shall not exceed $25,000,000 and (ii)
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the Aggregate Outstanding Credit Exposure shall not exceed the Aggregate
Commitment. No Facility LC shall have an expiry date later than the earlier of
(x) the fifth Business Day prior to the Facility Termination Date and (y) one
year after its issuance.
(ii) Transitional Provision. Schedule 2.21 contains a schedule of
certain letters of credit issued for the account of the Borrowers prior to the
Closing Date. Subject to the satisfaction of the conditions contained in
Sections 4.1, 4.2 and 4.3, from and after the Closing Date such letters of
credit shall be deemed to be Facility LCs issued pursuant to this Section 2.21.
2.21.2. Participations. On the date of this Agreement, with respect to
the Facility LCs identified on Schedule 2.21, and upon the issuance or
Modification by the applicable LC Issuer of a Facility LC in accordance with
this Section 2.21, such LC Issuer shall be deemed, without further action by any
party hereto, to have unconditionally and irrevocably sold to each Lender, and
each Lender shall be deemed, without further action by any party hereto, to have
unconditionally and irrevocably purchased from such LC Issuer, a participation
in such Facility LC (and each Modification thereof) and the related LC
Obligations in proportion to its Pro Rata Share.
2.21.3. Notice. Subject to Section 2.21.1, the applicable Borrower
shall give the applicable LC Issuer notice prior to 10:00 a.m. (Chicago time) at
least five (5) Business Days prior to the proposed date of issuance or
Modification of each Facility LC, specifying the beneficiary, the proposed date
of issuance (or Modification) and the expiry date of such Facility LC, and
describing the proposed terms of such Facility LC and the nature of the
transactions proposed to be supported thereby. Upon receipt of such notice, the
applicable LC Issuer shall promptly notify the Administrative Agent, and the
Administrative Agent shall promptly notify each Lender, of the contents thereof
and of the amount of such Lender's participation in such proposed Facility LC.
The issuance or Modification by any LC Issuer of any Facility LC shall, in
addition to the conditions precedent set forth in Article IV (the satisfaction
of which such LC Issuer shall have no duty to ascertain), be subject to the
conditions precedent that such Facility LC shall be satisfactory to such LC
Issuer and that the applicable Borrower shall have executed and delivered such
application agreement and/or such other instruments and agreements relating to
such Facility LC as the applicable LC Issuer shall have reasonably requested
(each, a "Facility LC Application"). In the event of any conflict between the
terms of this Agreement and the terms of any Facility LC Application, the terms
of this Agreement shall control.
2.21.4. LC Fees. The Borrowers shall pay to the Administrative Agent,
for the account of the Lenders ratably in accordance with their respective Pro
Rata Shares, a letter of credit fee at a per annum rate equal to (x) with
respect to each Standby LC, the Applicable Margin for Eurocurrency Loans in
effect from time to time on the average daily undrawn stated amount under such
Standby LC, and (y) with respect to each Performance LC, the Applicable
Performance LC Fee in effect from time to time on the average daily undrawn
stated amount under each Performance LC, such fees to be payable in arrears on
each Payment Date (each such fee described in this sentence being an "LC Fee").
The Borrowers shall also pay to each LC Issuer for its own account (x) at the
time of such LC Issuer's issuance of any Facility LC, a fronting fee equal to
0.15% per annum on the initial stated amount available for drawing under each
such Facility LC issued by such LC Issuer, and (y) documentary and processing
charges in
32
connection with the issuance or Modification of and draws under Facility LCs in
accordance with the applicable LC Issuer's standard schedule for such charges as
in effect from time to time.
2.21.5. Administration; Reimbursement by Lenders. Upon receipt from the
beneficiary of any Facility LC of any demand for payment under such Facility LC,
the applicable LC Issuer shall notify the Administrative Agent and the
Administrative Agent shall promptly notify the Company and each other Lender as
to the amount to be paid by such LC Issuer as a result of such demand and the
proposed payment date (the "LC Payment Date"). The responsibility of each LC
Issuer to the Borrowers and each Lender shall be only to determine that the
documents (including each demand for payment) delivered under each Facility LC
issued by such LC Issuer in connection with such presentment shall be in
conformity in all material respects with such Facility LC. Each LC Issuer shall
endeavor to exercise the same care in the issuance and administration of the
Facility LCs issued by such LC Issuer as it does with respect to letters of
credit in which no participations are granted, it being understood that in the
absence of any gross negligence or willful misconduct by the applicable LC
Issuer, each Lender shall be unconditionally and irrevocably liable without
regard to the occurrence of any Default or any condition precedent whatsoever,
to reimburse such LC Issuer on demand for (i) such Lender's Pro Rata Share of
the amount of each payment made by such LC Issuer under each Facility LC issued
by such LC Issuer to the extent such amount is not reimbursed by the Borrowers
pursuant to Section 2.21.6 below, plus (ii) interest on the foregoing amount to
be reimbursed by such Lender, for each day from the date of the applicable LC
Issuer's demand for such reimbursement (or, if such demand is made after 11:00
a.m. (Chicago time) on such date, from the next succeeding Business Day) to the
date on which such Lender pays the amount to be reimbursed by it, at a rate of
interest per annum equal to the Federal Funds Effective Rate for the first three
days and, thereafter, at a rate of interest equal to the rate applicable to
Floating Rate Advances.
2.21.6. Reimbursement by the Borrowers.
(i) The Borrowers shall be irrevocably and unconditionally obligated to
reimburse the LC Issuers on or before the applicable LC Payment Date for any
amounts to be paid by any LC Issuer upon any drawing under any Facility LC
issued by such LC Issuer (such obligation being a "Reimbursement Obligation"),
without presentment, demand, protest or other formalities of any kind; provided
that neither any Borrower nor any Lender shall hereby be precluded from
asserting any claim for direct (but not consequential) damages suffered by such
Borrower or such Lender to the extent, but only to the extent, caused by (a) the
willful misconduct or gross negligence of the applicable LC Issuer in
determining whether a request presented under any Facility LC issued by it
complied with the terms of such Facility LC or (b) the applicable LC Issuer's
failure to pay under any Facility LC issued by it after the presentation to it
of a request strictly complying with the terms and conditions of such Facility
LC.
(ii) If any Borrower at any time fails to repay a Reimbursement
Obligation on or before the applicable LC Payment Date, such unpaid
Reimbursement Obligation shall at that time be automatically converted into an
obligation denominated in Dollars and such Borrower shall be deemed to have
elected to borrow Revolving Loans from the Lenders, as of the date of the
advance giving rise to the Reimbursement Obligation, equal in amount to the
Dollar Amount of the unpaid Reimbursement Obligation. Such Revolving Loans shall
be made as of the date of the payment giving rise to such Reimbursement
Obligation, automatically, without notice and
33
without any requirement to satisfy the conditions precedent otherwise applicable
to an Advance of Revolving Loans. Such Revolving Loans shall constitute a
Floating Rate Advance, the proceeds of which Advance shall be used to repay such
Reimbursement Obligation. If, for any reason, any Borrower fails to repay a
Reimbursement Obligation on the day such Reimbursement Obligation arises and,
for any reason, the Lenders are unable to make or have no obligation to make
Revolving Loans, then such Reimbursement Obligation shall bear interest, payable
on demand, for each day until paid at a rate per annum equal to the sum of two
percent (2%) plus the rate applicable to Floating Rate Advances for such day
(or, in the case of a Reimbursement Obligation denominated in an Agreed Currency
other than Dollars, at the rate determined by the applicable Issuing Bank in
good faith to represent such Issuing Bank's cost of overnight or short-term
funds in the applicable Agreed Currency plus the then effective Applicable
Eurodollar Margin). The Borrowers agree to indemnify each Issuing Bank against
any loss or expense determined by such Issuing Bank in good faith to have
resulted from any conversion pursuant to this Section 2.21.6(ii) by reason of
the inability of such Issuing Bank to convert the Dollar Amount received from
the applicable Borrower or from the Lenders, as applicable, into an amount in
the applicable Agreed Currency of such Letter of Credit equal to the amount of
such Reimbursement Obligation.
(iii) Each LC Issuer will pay to each Lender ratably in accordance with
its Pro Rata Share all amounts received by it from the Borrowers for application
in payment, in whole or in part, of the Reimbursement Obligation in respect of
any Facility LC issued by such LC Issuer, but only to the extent such Lender has
made payment to such LC Issuer in respect of such Facility LC pursuant to
Section 2.21.5.
2.21.7. Obligations Absolute. The Borrowers' obligations under this
Section 2.21 shall be absolute and unconditional under any and all circumstances
and irrespective of any setoff, counterclaim or defense to payment which any
Borrower may have or have had against any LC Issuer, any Lender or any
beneficiary of a Facility LC. The Borrowers further agree with the LC Issuers
and the Lenders that the LC Issuers and the Lenders shall not be responsible
for, and no Borrower's Reimbursement Obligation in respect of any Facility LC
shall be affected by, among other things, the validity or genuineness of
documents or of any endorsements thereon, even if such documents should in fact
prove to be in any or all respects invalid, fraudulent or forged, or any dispute
between or among any Borrower, any of its Affiliates, the beneficiary of any
Facility LC or any financing institution or other party to whom any Facility LC
may be transferred or any claims or defenses whatsoever of any Borrower or of
any of its Affiliates against the beneficiary of any Facility LC or any such
transferee. No LC Issuer shall 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 Facility LC. The Borrowers agree that any
action taken or omitted by any LC Issuer or any Lender under or in connection
with each Facility LC and the related drafts and documents, if done without
gross negligence or willful misconduct, shall be binding upon the Borrowers and
shall not put any LC Issuer or any Lender under any liability to the Borrowers.
Nothing in this Section 2.21.7 is intended to limit the right of the Borrowers
to make a claim against any LC Issuer for damages as contemplated by the proviso
to the first sentence of Section 2.21.6.
2.21.8. Actions of LC Issuers. Each LC Issuer shall be entitled to
rely, and shall be fully protected in relying, upon any Facility LC, draft,
writing, resolution, notice, consent, certificate,
34
affidavit, letter, cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document believed by it to be genuine and correct and
to have been signed, sent or made by the proper Person or Persons, and upon
advice and statements of legal counsel, independent accountants and other
experts selected by such LC Issuer. Each LC Issuer shall be fully justified in
failing or refusing to take any action under this Agreement unless it shall
first have received such advice or concurrence of the Required Lenders as it
reasonably deems appropriate or it shall first be indemnified to its reasonable
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action.
Notwithstanding any other provision of this Section 2.21, each LC Issuer shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement in accordance with a request of the Required Lenders, and such
request and any action taken or failure to act pursuant thereto shall be binding
upon the Lenders and any future holders of a participation in any Facility LC.
2.21.9. Indemnification. The Borrowers hereby agree to indemnify and
hold harmless each Lender, each LC Issuer and the Administrative Agent, and
their respective directors, officers, agents and employees from and against any
and all claims and damages, losses, liabilities, costs or expenses which such
Lender, such LC Issuer or the Administrative Agent may incur (or which may be
claimed against such Lender, such LC Issuer or the Administrative Agent by any
Person whatsoever) by reason of or in connection with the issuance, execution
and delivery or transfer of or payment or failure to pay under any Facility LC
or any actual or proposed use of any Facility LC, including, without limitation,
any claims, damages, losses, liabilities, costs or expenses which any LC Issuer
may incur by reason of or in connection with (i) the failure of any other Lender
to fulfill or comply with its obligations to such LC Issuer hereunder (but
nothing herein contained shall affect any rights the Borrowers may have against
any defaulting Lender) or (ii) by reason of or on account of such LC Issuer
issuing any Facility LC which specifies that the term "Beneficiary" included
therein includes any successor by operation of law of the named Beneficiary, but
which Facility LC does not require that any drawing by any such successor
Beneficiary be accompanied by a copy of a legal document, satisfactory to such
LC Issuer, evidencing the appointment of such successor Beneficiary; provided
that the Borrowers shall not be required to indemnify any Lender, any LC Issuer
or the Administrative Agent for any claims, damages, losses, liabilities, costs
or expenses to the extent, but only to the extent, caused by (x) the willful
misconduct or gross negligence of the applicable LC Issuer in determining
whether a request presented under any Facility LC issued by such LC Issuer
complied with the terms of such Facility LC or (y) any LC Issuer's failure to
pay under any Facility LC issued by such LC Issuer after the presentation to it
of a request strictly complying with the terms and conditions of such Facility
LC. Nothing in this Section 2.21.9 is intended to limit the obligations of the
Borrowers under any other provision of this Agreement.
2.21.10. Lenders' Indemnification. Each Lender shall, ratably in
accordance with its Pro Rata Share, indemnify each LC Issuer, its affiliates and
their respective directors, officers, agents and employees (to the extent not
reimbursed by the Borrowers) against any cost, expense (including reasonable
counsel fees and disbursements), claim, demand, action, loss or liability
(except such as result from such indemnitees' gross negligence or willful
misconduct or the applicable LC Issuer's failure to pay under any Facility LC
issued by such LC Issuer after the presentation to it of a request strictly
complying with the terms and conditions of such Facility
35
LC) that such indemnitees may suffer or incur in connection with this Section
2.21 or any action taken or omitted by such indemnitees hereunder.
2.21.11. Facility LC Collateral Account. Each Borrowers agrees that it
will, as required by Section 8.1 and until the final expiration date of any
Facility LC and thereafter as long as any amount is payable to the LC Issuers or
the Lenders in respect of any Facility LC, maintain a special collateral account
pursuant to arrangements satisfactory to the Administrative Agent (the "Facility
LC Collateral Account") at the Administrative Agent's office at the address
specified pursuant to Article XIV, in the name of such Borrower but under the
sole dominion and control of the Administrative Agent, for the benefit of the
Lenders and in which such Borrower shall have no interest other than as set
forth in Section 8.1. Each Borrower hereby pledges, assigns and grants to the
Administrative Agent, on behalf of and for the ratable benefit of the Lenders
and the LC Issuers, a security interest in all of such Borrower's right, title
and interest in and to all funds which may from time to time be on deposit in
the Facility LC Collateral Account to secure the prompt and complete payment and
performance of the Obligations. The Administrative Agent will invest any funds
on deposit from time to time in the Facility LC Collateral Account in
certificates of deposit of Bank One having a maturity not exceeding 30 days.
Nothing in this Section 2.21.11 shall either obligate the Administrative Agent
to require the Borrowers to deposit any funds in the Facility LC Collateral
Account or limit the right of the Administrative Agent to release any funds held
in the Facility LC Collateral Account in each case other than as required by
Section 8.1.
2.21.12. Rights as a Lender. In its capacity as a Lender, each LC
Issuer shall have the same rights and obligations as any other Lender.
2.22. Subsidiary Borrowers. The Company may at any time or from time to
time, with the consent of the Administrative Agent, add as a party to this
Agreement any Subsidiary to be a Subsidiary Borrower hereunder by the execution
and delivery to the Administrative Agent and the Lenders of (a) a duly completed
Assumption Letter by such Subsidiary, with the written consent of the Borrowers
at the foot thereof, (b) such guaranty and subordinated intercompany
indebtedness documents and, if applicable, security documents as may be
reasonably required by the Administrative Agent and such other opinions,
agreements, documents, certificates or other items as may be required by Section
4.3, such documents with respect to any additional Subsidiaries to be
substantially similar in form and substance to the Loan Documents executed on or
about the date hereof by the Subsidiaries parties hereto as of the Closing Date.
Upon such execution, delivery and consent such Subsidiary shall for all purposes
be a party hereto as a Subsidiary Borrower as fully as if it had executed and
delivered this Agreement. So long as the principal of and interest on any Credit
Extensions made to any Subsidiary Borrower under this Agreement shall have been
repaid or paid in full, all Facility LCs issued for the account of such
Subsidiary Borrower have expired or been returned and terminated and all other
obligations of such Subsidiary Borrower under this Agreement shall have been
fully performed, the Company may, by not less than five (5) Business Days' prior
notice to the Administrative Agent (which shall promptly notify the Lenders
thereof), terminate such Subsidiary Borrower's status as a "Subsidiary
Borrower". The Administrative Agent shall give the Lenders written of the
addition of any Subsidiary Borrowers to this Agreement.
36
2.23. Judgment Currency. If, for the purposes of obtaining judgment in
any court, it is necessary to convert a sum due from any Borrower hereunder in
the currency expressed to be payable herein (the "specified currency") into
another currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative Agent could
purchase the specified currency with such other currency at the Administrative
Agent's main office in Chicago, Illinois on the Business Day preceding that on
which the final, non-appealable judgment is given. The obligations of each
Borrower in respect of any sum due to any Lender or the Administrative Agent
hereunder shall, notwithstanding any judgment in a currency other than the
specified currency, be discharged only to the extent that on the Business Day
following receipt by such Lender or the Administrative Agent (as the case may
be) of any sum adjudged to be so due in such other currency such Lender or the
Administrative Agent (as the case may be) may in accordance with normal,
reasonable banking procedures purchase the specified currency with such other
currency. If the amount of the specified currency so purchased is less than the
sum originally due to such Lender or the Administrative Agent, as the case may
be, in the specified currency, each Borrower agrees, to the fullest extent that
it may effectively do so, as a separate obligation and notwithstanding any such
judgment, to indemnify such Lender or the Administrative Agent, as the case may
be, against such loss, and if the amount of the specified currency so purchased
exceeds (a) the sum originally due to any Lender or the Administrative Agent, as
the case may be, in the specified currency and (b) any amounts shared with other
Lenders as a result of allocations of such excess as a disproportionate payment
to such Lender under Section 12.2, such Lender or the Administrative Agent, as
the case may be, agrees to remit such excess to such Borrower.
ARTICLE III
YIELD PROTECTION; TAXES
3.1. Yield Protection. If, on or after the date of this Agreement, the
adoption of any law or any governmental or quasi-governmental rule, regulation,
policy, guideline or directive (whether or not having the force of law), or any
change in any such law, rule, regulation, policy, guideline or directive or in
the interpretation or administration thereof by any governmental or
quasi-governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender or
applicable Lending Installation or any LC Issuer with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency:
(i) subjects any Lender or any applicable Lending Installation or
any LC Issuer to any Taxes, or changes the basis of taxation
of payments (other than with respect to Excluded Taxes) to any
Lender or any LC Issuer in respect of its Eurocurrency Loans,
Facility LCs or participations therein, or
(ii) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar
requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender or any
applicable Lending Installation or any LC Issuer (other than
reserves and assessments taken into account in determining the
interest rate applicable to Eurocurrency Advances), or
37
(iii) imposes any other condition the result of which is to increase
the cost to any Lender or any applicable Lending Installation
or any LC Issuer of making, funding or maintaining its
Eurocurrency Loans or Commitment (including, without
limitation, any conversion of any Loan denominated in an
Agreed Currency other than euro into a Loan denominated in
Euro), or of issuing or participating in Facility LCs, or
reduces any amount receivable by any Lender or any applicable
Lending Installation or any LC Issuer in connection with its
Eurocurrency Loans or Commitment, Facility LCs or
participations therein, or requires any Lender or any
applicable Lending Installation or any LC Issuer to make any
payment calculated by reference to the amount of Eurocurrency
Loans or Commitment, Facility LCs or participants therein held
or interest of LC Fees received by it, by an amount deemed
material by such Lender or such LC Issuer as the case may be,
and the result of any of the foregoing is to increase the cost to such Lender or
applicable Lending Installation or such LC Issuer, as the case may be, of making
or maintaining its Eurocurrency Loans (including, without limitation, any
conversion of any Loan denominated in an Agreed Currency other than euro into a
Loan denominated in euro) or Commitment or of issuing or participating in
Facility LCs or to reduce the return received by such Lender or applicable
Lending Installation or such LC Issuer, as the case may be, in connection with
such Eurocurrency Loans or Commitment , Facility LCs or participations therein,
then, within fifteen (15) days of demand by such Lender, the Borrowers shall pay
such Lender such additional amount or amounts as will compensate such Lender or
such LC Issuer, as the case may be, for such increased cost or reduction in
amount received.
3.2. Changes in Capital Adequacy Regulations. If a Lender or any LC
Issuer determines the amount of capital required or expected to be maintained by
such Lender, such LC Issuer, any Lending Installation of such Lender or such LC
Issuer, or any corporation controlling such Lender or such LC Issuer, is
increased as a result of a Change, then, within fifteen (15) days of demand by
such Lender, or such LC Issuer, the Borrowers shall pay such Lender or such LC
Issuer the amount necessary to compensate for any shortfall in the rate of
return on the portion of such increased capital which such Lender or such LC
Issuer determines is attributable to this Agreement, its Outstanding Credit
Exposure or its Commitment to make Loans and issue or participate in Facility
LCs, as the case may be, hereunder (after taking into account such Lender's or
such LC Issuer's policies as to capital adequacy). "Change" means (i) any change
after the date of this Agreement in the Risk-Based Capital Guidelines or (ii)
any adoption of, change in, or change in the interpretation or administration of
any other law, governmental or quasi-governmental rule, regulation, policy,
guideline, interpretation, or directive (whether or not having the force of law)
after the date of this Agreement which affects the amount of capital required or
expected to be maintained by any Lender or any LC Issuer or any Lending
Installation or any corporation controlling any Lender or any LC Issuer.
"Risk-Based Capital Guidelines" means (i) the risk-based capital guidelines in
effect in the United States on the date of this Agreement, including transition
rules, and (ii) the corresponding capital regulations promulgated by regulatory
authorities outside the United States implementing the July 1988 report of the
Basle Committee on Banking Regulation and Supervisory Practices Entitled
"International Convergence of Capital Measurements and Capital Standards,"
including
38
transition rules, and any amendments to such regulations adopted prior to the
date of this Agreement.
3.3. Availability of Types of Advances. If (x) any Lender determines
that maintenance of its Eurocurrency Loans at a suitable Lending Installation
would violate any applicable law, rule, regulation or directive, whether or not
having the force of law, or (y) the Required Lenders determine that (i) deposits
of a type, currency and maturity appropriate to match fund Eurocurrency Advances
are not available or (ii) the interest rate applicable to Eurocurrency Advances
does not accurately reflect the cost of making or maintaining Eurocurrency
Advances, then the Administrative Agent shall suspend the availability of
Eurocurrency Advances and require any affected Eurocurrency Advances to be
repaid or converted to Floating Rate Advances, subject to the payment of any
funding indemnification amounts required by Section 3.4.
3.4. Funding Indemnification. If any payment of a Eurocurrency Advance
occurs on a date which is not the last day of the applicable Interest Period,
whether because of acceleration, prepayment or otherwise, or a Eurocurrency
Advance is not made on the date specified by any Borrower for any reason other
than default by the Lenders, or a Eurocurrency Advance is not prepaid on the
date specified by the applicable Borrower for any reason, the Borrowers will
indemnify each Lender for any loss or cost incurred by it resulting therefrom,
including, without limitation, any loss or cost in liquidating or employing
deposits acquired to fund or maintain such Eurocurrency Advance.
3.5. Taxes.
(i) All payments by the Borrowers to or for the account of any Lender,
any LC Issuer or the Administrative Agent hereunder or under any Note or
Facility LC Application shall be made free and clear of and without deduction
for any and all Taxes. If any Borrower shall be required by law to deduct any
Taxes from or in respect of any sum payable hereunder to any Lender, any LC
Issuer or the Administrative Agent, (a) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 3.5) such Lender, such
LC Issuer or the Administrative Agent (as the case may be) receives an amount
equal to the sum it would have received had no such deductions been made, (b)
such Borrower shall make such deductions, (c) such Borrower shall pay the full
amount deducted to the relevant authority in accordance with applicable law and
(d) such Borrower shall furnish to the Administrative Agent the original copy of
a receipt evidencing payment thereof within thirty (30) days after such payment
is made.
(ii) In addition, the Borrowers hereby agree to pay any present or
future stamp or documentary taxes and any other excise or property taxes,
charges or similar levies which arise from any payment made hereunder or under
any Note or Facility LC Application or from the execution or delivery of, or
otherwise with respect to, this Agreement or any Note or Facility LC Application
("Other Taxes").
(iii) The Borrowers hereby agree to indemnify the Administrative Agent,
the LC Issuers and each Lender for the full amount of Taxes or Other Taxes
(including, without limitation, any Taxes or Other Taxes imposed on amounts
payable under this Section 3.5) paid
39
by the Administrative Agent, the LC Issuers or such Lender and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto. Payments due under this indemnification shall be made within thirty
(30) days of the date the Administrative Agent, the LC Issuers or such Lender
makes demand therefor pursuant to Section 3.6.
(iv) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof (each a "Non-U.S. Lender") agrees that it
will, not more than ten (10) Business Days after the date on which it becomes a
party to this Agreement, (i) deliver to each of the Company and the
Administrative Agent two (2) duly completed copies of United States Internal
Revenue Service Form W-8BEN or W-8ECI, certifying in either case that such
Lender is entitled to receive payments under this Agreement without deduction or
withholding of any United States federal income taxes, and (ii) deliver to each
of the Company and the Administrative Agent a United States Internal Revenue
Form W-8 or W-9, as the case may be, and certify that it is entitled to an
exemption from United States backup withholding tax. Each Non-U.S. Lender
further undertakes to deliver to each of the Company and the Administrative
Agent (x) renewals or additional copies of such form (or any successor form) on
or before the date that such form expires or becomes obsolete, and (y) after the
occurrence of any event requiring a change in the most recent forms so delivered
by it, such additional forms or amendments thereto as may be reasonably
requested by the Company or the Administrative Agent. All forms or amendments
described in the preceding sentence shall certify that such Lender is entitled
to receive payments under this Agreement without deduction or withholding of any
United States federal income taxes, unless an event (including without
limitation any change in treaty, law or regulation) has occurred prior to the
date on which any such delivery would otherwise be required which renders all
such forms inapplicable or which would prevent such Lender from duly completing
and delivering any such form or amendment with respect to it and such Lender
advises the Company and the Administrative Agent that it is not capable of
receiving payments without any deduction or withholding of United States federal
income tax.
(v) For any period during which a Non-U.S. Lender has failed to provide
the Company with an appropriate form pursuant to clause (iv), above (unless such
failure is due to a change in treaty, law or regulation, or any change in the
interpretation or administration thereof by any governmental authority,
occurring subsequent to the date on which a form originally was required to be
provided), such Non-U.S. Lender shall not be entitled to indemnification under
this Section 3.5 with respect to Taxes imposed by the United States; provided
that, should a Non-U.S. Lender which is otherwise exempt from or subject to a
reduced rate of withholding tax become subject to Taxes because of its failure
to deliver a form required under clause (iv), above, the Borrowers shall take
such steps as such Non-U.S. Lender shall reasonably request to assist such
Non-U.S. Lender to recover such Taxes.
(vi) Any Lender that is entitled to an exemption from or reduction of
withholding tax with respect to payments under this Agreement or any Note
pursuant to the law of any relevant jurisdiction or any treaty shall deliver to
the Company (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without
withholding or at a reduced rate.
40
(vii) If the IRS or any other governmental authority of the United
States or any other country or any political subdivision thereof asserts a claim
that the Administrative Agent did not properly withhold tax from amounts paid to
or for the account of any Lender (because the appropriate form was not delivered
or properly completed, because such Lender failed to notify the Administrative
Agent of a change in circumstances which rendered its exemption from withholding
ineffective, or for any other reason), such Lender shall indemnify the
Administrative Agent fully for all amounts paid, directly or indirectly, by the
Administrative Agent as tax, withholding therefor, or otherwise, including
penalties and interest, and including taxes imposed by any jurisdiction on
amounts payable to the Administrative Agent under this subsection, together with
all costs and expenses related thereto (including attorneys' fees and time
charges of attorneys for the Administrative Agent, which attorneys may be
employees of the Administrative Agent). The obligations of the Lenders under
this Section 3.5(vii) shall survive the payment of the Obligations and
termination of this Agreement.
3.6. Lender Statements; Survival of Indemnity. To the extent reasonably
possible, each Lender shall designate an alternate Lending Installation with
respect to its Eurocurrency Loans to reduce any liability of the Borrowers to
such Lender under Sections 3.1, 3.2 and 3.5 or to avoid the unavailability of
Eurocurrency Advances under Section 3.3, so long as such designation is not, in
the judgment of such Lender, disadvantageous to such Lender. Each Lender shall
deliver a written statement of such Lender to the Company (with a copy to the
Administrative Agent) as to the amount due, if any, under Section 3.1, 3.2, 3.4
or 3.5; provided, that no Borrower shall be obligated to pay any amount or
amounts under Section 3.1, 3.2, 3.4 or 3.5 in respect of which an officer of the
Administrative Agent or the affected Lender responsible for the administration
of this Agreement shall have had actual knowledge for more than 180 days prior
to the date of such statement. Such written statement shall set forth in
reasonable detail the calculations upon which such Lender determined such amount
and shall be final, conclusive and binding on the Borrowers in the absence of
manifest error. Determination of amounts payable under such Sections in
connection with a Eurocurrency Loan shall be calculated as though each Lender
funded its Eurocurrency Loan through the purchase of a deposit of the type,
currency and maturity corresponding to the deposit used as a reference in
determining the Eurocurrency Rate applicable to such Loan, whether in fact that
is the case or not. Unless otherwise provided herein, the amount specified in
the written statement of any Lender shall be payable on demand after receipt by
the Company of such written statement. The obligations of the Borrowers under
Sections 3.1, 3.2, 3.4 and 3.5 shall survive payment of the Obligations and
termination of this Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
4.1. Initial Credit Extension. The Lenders shall not be required to
make the initial Credit Extension hereunder unless (a) the representations and
warranties contained in Article V are true and correct as of such date and (b)
the Company has furnished to the Administrative Agent with sufficient copies for
the Lenders:
(i) Copies of the articles or certificates of incorporation (or
similar Constitutive Documents) of the Company and each
Guarantor (each a "Loan Party"), together
41
with all amendments thereto, and a certificate of good
standing, each certified by the appropriate governmental
officer in its jurisdiction of incorporation.
(ii) Copies, certified by the Secretary or Assistant Secretary of
each Loan Party of its by-laws (or similar Constitutive
Documents) and of its Board of Directors' resolutions and of
resolutions or actions of any other body authorizing the
execution of the Loan Documents to which it is a party.
(iii) An incumbency certificate, executed by the Secretary or
Assistant Secretary of each Loan Party, which shall identify
by name and title and bear the signatures of the Authorized
Officers and any other officers of such Loan Party authorized
to sign the Loan Documents to which it is a party and, in the
case of the Borrowers, to request Loans hereunder, upon which
certificate the Administrative Agent and the Lenders shall be
entitled to rely until informed of any change in writing by
the applicable Loan Party.
(iv) An opening compliance certificate in substantially the form of
Exhibit B, signed by the chief financial officer or treasurer
of the Company, showing the calculations necessary to
determine compliance with this Agreement on the initial Credit
Extension Date and stating that on the initial Credit
Extension Date no Default or Unmatured Default has occurred
and is continuing.
(v) A written opinion of each Borrower's and each Guarantor's
counsel, in form and substance satisfactory to the
Administrative Agent and addressed to the Lenders in
substantially the form of Exhibit A.
(vi) Any Notes requested by a Lender pursuant to Section 2.14
payable to the order of each such requesting Lender.
(vii) If the initial Credit Extension shall be the issuance of a
Facility LC, a properly completed Facility LC Application.
(viii) Written money transfer instructions, in substantially the form
of Exhibit D, addressed to the Administrative Agent and signed
by an Authorized Officer, together with such other related
money transfer authorizations as the Administrative Agent may
have reasonably requested.
(ix) Evidence satisfactory to the Administrative Agent that the
Existing Credit Agreement shall have been or shall
simultaneously on the Closing Date be terminated (except for
those provisions that expressly survive the termination
thereof) and all loans outstanding and other amounts owed to
the lenders or agents thereunder shall have been or shall
simultaneously with the initial Advance hereunder be paid in
full.
(x) Such other documents as any Lender or its counsel may have
reasonably requested including, without limitation, each
document identified on the List of Closing Documents attached
hereto as Exhibit F.
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4.2. Each Credit Extension. The Lenders shall not (except as otherwise
set forth in Section 2.2.4 with respect to Revolving Loans for the purpose of
repaying Swing Line Loans) be required to make any Credit Extension unless on
the applicable Credit Extension Date:
(i) There exists no Default or Unmatured Default.
(ii) The representations and warranties contained in Article V are
true and correct as of such Credit Extension Date except to
the extent any such representation or warranty is stated to
relate solely to an earlier date, in which case such
representation or warranty shall have been true and correct on
and as of such earlier date.
(iii) The Available Aggregate Commitment shall not be less than the
aggregate face amount (plus accrued interest, if any) of the
outstanding short-term unsecured debt obligations (interest
bearing or discounted) of the Company or its Subsidiaries
having maturities of 270 days or less excluding in any case,
Credit Extensions under this Agreement and borrowings by
Subsidiaries in currencies other than Dollars.
(iv) All legal matters incident to the making of such Credit
Extension shall be satisfactory to the Lenders and their
counsel.
Each Borrowing Notice or request for issuance of a Facility LC, or
Swing Line Borrowing Notice, as the case may be, with respect to each such
Credit Extension shall constitute a representation and warranty by the Borrowers
that the conditions contained in Section 4.2(i), (ii) and (iii) have been
satisfied.
4.3. Initial Advance to Each New Subsidiary Borrower. The Lenders shall
not be required to make a Credit Extension hereunder to a new Subsidiary
Borrower added after the Closing Date unless the Company has furnished or caused
to be furnished to the Administrative Agent with sufficient copies for the
Lenders:
(i) The Assumption Letter executed and delivered by such
Subsidiary Borrower and containing the written consent of the
Borrowers, as contemplated by Section 2.22;
(ii) Copies, certified by the Secretary, Assistant Secretary,
Director or Authorized Officer of the Subsidiary Borrower, of
its Board of Directors' resolutions (and/or resolutions of
other bodies, if any are deemed necessary by the
Administrative Agent) approving the Assumption Letter;
(iii) An incumbency certificate, executed by the Secretary,
Assistant Secretary, Director or Authorized Officer of the
Subsidiary Borrower, which shall identify by name and title
and bear the signature of the officers of such Subsidiary
Borrower authorized to sign the Assumption Letter and the
other documents to be executed and delivered by such
Subsidiary Borrower hereunder, upon which certificate the
Administrative Agent and the Lenders shall be entitled to rely
until informed of any change in writing by the Company;
43
(iv) An opinion of counsel to such Subsidiary Borrower,
substantially in the form of Exhibit E hereto;
(v) Guaranty documentation from such Subsidiary Borrower that is a
Domestic Subsidiary in form and substance acceptable to the
Administrative Agent as required pursuant to Section 6.10;
(vi) With respect to the initial Credit Extension made to any
Subsidiary Borrower that is a Foreign Subsidiary, the
Administrative Agent shall have received originals and/or
copies, as applicable, of all filings required to be made and
such other evidence as the Administrative Agent may require
establishing to the Administrative Agent's satisfaction that
each Lender, Swing Line Lender and each LC Issuer is entitled
to receive payments under the Loan Documents without deduction
or withholding of any taxes or with such deductions and
withholding of taxes as may be acceptable to the
Administrative Agent, including, without limitation, English
taxes; and
(vii) With respect to each such Subsidiary Borrower that is a
Foreign Subsidiary, evidence reasonably satisfactory to the
Administrative Agent that such Subsidiary Borrower has
appointed an agent for service of process in the State of
Illinois.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants as follows to each Lender and the
Administrative Agent as of the Closing Date, on the date of the initial Loans
hereunder (if different from the Closing Date) and thereafter on each date as
required by Section 4.2:
5.1. Existence and Standing. The Company and each of its Subsidiaries
is a corporation, partnership or limited liability company duly and properly
incorporated or organized, as the case may be, validly existing and (to the
extent such concept applies to such entity) in good standing under the laws of
its jurisdiction of incorporation or organization and has all requisite
authority to conduct its business in each jurisdiction in which its business is
conducted, except to the extent that the failure to have such authority could
not reasonably be expected to have a Material Adverse Effect.
5.2. Authorization and Validity. The Company and each of its
Subsidiaries (to the extent applicable) has the power and authority and legal
right to execute and deliver the Loan Documents to which it is a party and to
perform its obligations thereunder. The execution and delivery by the Company
and any such Subsidiary of the Loan Documents to which it is a party and the
performance of its obligations thereunder have been duly authorized by proper
corporate proceedings, and the Loan Documents to which such entity is a party
constitute legal, valid and binding obligations of such entity enforceable
against such entity in accordance with their terms, except as enforceability may
be limited by bankruptcy, insolvency or similar laws affecting the enforcement
of creditors' rights generally.
44
5.3. No Conflict; Government Consent. Neither the execution and
delivery by the Company or any of its Subsidiaries of the Loan Documents, nor
the consummation of the transactions therein contemplated, nor compliance with
the provisions thereof will violate (i) any law, rule, regulation, order, writ,
judgment, injunction, decree or award binding on the Company or any of its
Subsidiaries or (ii) the Company's or any Subsidiary's articles or certificate
of incorporation, partnership agreement, certificate of partnership, articles or
certificate of organization, by-laws, or operating agreement or other management
agreement, as the case may be, or (iii) the provisions of any indenture,
instrument or agreement to which the Company or any of its Subsidiaries is a
party or is subject, or by which it, or its Property, is bound, or conflict
with, or constitute a default under, or result in, or require, the creation or
imposition of any Lien in, of or on the Property of the Company or a Subsidiary
pursuant to the terms of, any such indenture, instrument or agreement. No order,
consent, adjudication, approval, license, authorization, or validation of, or
filing, recording or registration with, or exemption by, or other action in
respect of any governmental or public body or authority, or any subdivision
thereof, which has not been obtained by the Company or any of its Subsidiaries,
is required to be obtained by the Company or any of its Subsidiaries in
connection with the execution and delivery of the Loan Documents, the borrowings
under this Agreement, the payment and performance by any Borrower of the
Obligations or the legality, validity, binding effect or enforceability of any
of the Loan Documents.
5.4. Financial Statements. The September 30, 2000 consolidated
financial statements of the Company and its Subsidiaries heretofore delivered to
the Arranger and the Lenders, copies of which are attached hereto as Schedule
5.4, were prepared in accordance with generally accepted accounting principles
in effect on the date such statements were prepared and fairly present, the
consolidated financial condition and operations of the Company and its
Subsidiaries at such date and the consolidated results of their operations and
cash flows for the fiscal year then ended.
5.5. Material Adverse Change. Since September 30, 2000 there has been
no change in the business, Property, condition (financial or otherwise)
operations, performance or prospects of any Borrower, or the Company and its
Subsidiaries taken as a whole, which could reasonably be expected to have a
Material Adverse Effect.
5.6. Taxes. The Company and its Subsidiaries have filed all United
States federal tax returns and all other tax returns which are required to be
filed and have paid all taxes due pursuant to said returns or pursuant to any
assessment received by the Company or any of its Subsidiaries, except such
taxes, if any, as are being contested in good faith and as to which adequate
reserves have been provided in accordance with Agreement Accounting Principles.
The United States income tax returns of the Company and its Subsidiaries have
been audited by the IRS through the fiscal year ended September 30, 1994. No tax
liens have been filed and no claims are being asserted with respect to any such
taxes. The charges, accruals and reserves on the books of the Company and its
Subsidiaries in respect of any taxes or other governmental charges are adequate.
5.7. Litigation and Contingent Obligations. There is no litigation,
arbitration, governmental investigation, proceeding or inquiry pending or, to
the knowledge of any of their officers, threatened against or affecting the
Company or any of its Subsidiaries which could
45
reasonably be expected to have a Material Adverse Effect or which seeks to
prevent, enjoin or delay the making of any Loans. Other than any liability
incident to any litigation, arbitration or proceeding which could not reasonably
be expected to have a Material Adverse Effect, neither the Company nor any of
its Subsidiaries have any contingent obligations not provided for or disclosed
in the financial statements referred to in Section 5.4.
5.8. Subsidiaries. Schedule 5.8 (as supplemented from time to time by
the Company promptly after the formation or acquisition of any new Subsidiary as
permitted under this Agreement) contains an accurate list of all Subsidiaries of
the Company as of the date of this Agreement, setting forth their respective
jurisdictions of organization and the percentage of their respective capital
stock or other ownership interests owned by the Company or other Subsidiaries.
All of the issued and outstanding shares of capital stock or other ownership
interests of such Subsidiaries have been (to the extent such concepts are
relevant with respect to such ownership interests) duly authorized and issued
and are fully paid and non-assessable.
5.9. Accuracy of Information. No information, schedule, exhibit or
report furnished by the Company or any of its Subsidiaries to the Arranger, the
Administrative Agent or Lender (including, without limitation, the Company's
Confidential Information Memorandum dated July 2001) in connection with the
negotiation of, or compliance with, the Loan Documents contained any material
misstatement of fact or omitted to state a material fact or any fact necessary
to make the statements contained therein not misleading.
5.10. Regulation U. Neither the Company nor any of its Subsidiaries is
engaged principally, or as one of its important activities, in the business of
extending credit for the purpose, whether immediate, incidental or ultimate of
buying or carrying margin stock (within the meaning of Regulations U or X); and
after applying the proceeds of each Advance, margin stock (as defined in
Regulation U) constitutes less than twenty-five (25%) of the value of those
assets of the Company and its Subsidiaries which are subject to any limitation
on sale or pledge, or any other restriction hereunder.
5.11. Material Agreements. Neither the Company nor any Subsidiary is a
party to any agreement or instrument or subject to any charter or other
corporate restriction which could reasonably be expected to have a Material
Adverse Effect. Neither the Company nor any Subsidiary is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in (i) any agreement to which it is a party, which default
could reasonably be expected to have a Material Adverse Effect or (ii) any
agreement or instrument evidencing or governing Indebtedness.
5.12. Compliance With Laws. The Company and its Subsidiaries have
complied in all material respects with all applicable statutes, rules,
regulations, orders and restrictions of any domestic or foreign government or
any instrumentality or agency thereof having jurisdiction over the conduct of
their respective businesses or the ownership of their respective Property.
5.13. Ownership of Properties. On the date of this Agreement, the
Company and its Subsidiaries will have good title, free of all Liens other than
those permitted by Section 6.16, to all of the Property and assets reflected in
the Company's most recent consolidated financial statements provided to the
Arranger and the Lenders as owned by the Company and its
46
Subsidiaries, other than Property an assets sold or otherwise disposed of in the
ordinary course of business.
5.14. ERISA; Foreign Pension Matters. The Company and all ERISA
Affiliates, and Plan fiduciaries indemnified by them who are employees of the
Company or an ERISA Affiliate have complied with the responsibilities,
obligations, and duties imposed upon them by ERISA and the IRC and the rules and
regulations promulgated thereunder with respect to any Plan, where the failure
so to comply might be reasonably expected materially to adversely affect the
ability of the Company and its ERISA Affiliates, taken as a whole, to carry on
business substantially as now being or heretofore conducted, or to materially
adversely affect the financial condition of the Company and its ERISA Affiliates
taken as whole. Except as disclosed in Schedule 5.14 neither the Company nor any
ERISA Affiliate maintains or contributes to any employee welfare benefit plan
within the meaning of Section 3(l) of ERISA which provides benefits to employees
after termination of employment other than as required by Section 601 of ERISA.
No Benefit Plan has incurred any accumulated funding deficiency (as defined in
Sections 302 (a)(2) of ERISA or 412(a) of the IRC) whether or not waived.
Neither the Company nor any ERISA Affiliate has taken or failed to take any
action which would constitute or result in a Termination Event which might be
reasonably expected materially to adversely affect the ability of the Company
and its ERISA Affiliates, taken as a whole, to carry on business substantially
as now being or heretofore conducted, or to materially adversely affect the
financial condition of the Company and its ERISA Affiliates taken as a whole.
Neither the Company nor any ERISA Affiliate has incurred with respect to any
Benefit Plan liability to the PBGC or any Multiemployer Plan under Title IV of
ERISA which remains outstanding other than the payment of premiums to the PBGC,
and there are no premium payments which have become due which are unpaid.
Neither the Company nor any ERISA Affiliate has failed to make a required
contribution or payment to a Multiemployer Plan. Neither the Company nor any
ERISA Affiliate has failed to make a required installment or any other required
payment under Section 412 of the IRC on or before the due date for such
installment or other payment. Neither the Company nor any ERISA Affiliate is
required to provide security to a Benefit Plan under Section 401(a) (29) of the
IRC due to a Plan amendment that results in an increase in current liability for
the plan year. The present value of the aggregate unfunded liabilities to
provide the accrued benefits under all Foreign Pension Plans do not in the
aggregate exceed an amount equal to five percent (5%) of the fair market value
of the assets held in trust or other funding vehicles for accrued benefits under
all Foreign Pension Plans. Each Foreign Pension Plan complies in all material
respects with all applicable requirements of law and regulations.
5.15. Plan Assets; Prohibited Transactions. No Borrower is an entity
deemed to hold "plan assets" within the meaning of 29 C.F.R. ss. 2510.3-101 of
an employee benefit plan (as defined in Section 3(3) of ERISA) which is subject
to Title I of ERISA or any plan (within the meaning of Section 4975 of the
Code), and neither the execution of this Agreement nor the making of Loans
hereunder gives rise to a prohibited transaction within the meaning of Section
406 of ERISA or Section 4975 of the Code.
5.16. Environmental Matters.
(a) In the ordinary course of its business, the officers of the Company
consider the effect of Environmental Laws on the business of the Company and its
Subsidiaries, in the course
47
of which they identify and evaluate potential risks and liabilities accruing to
the Company and its Subsidiaries due to Environmental Laws. On the basis of this
consideration, the Company has concluded that Environmental Laws cannot
reasonably be expected to have a Material Adverse Effect. Except as set forth on
Schedule 5.16, neither the Company nor any Subsidiary has received any notice to
the effect that its operations are not in compliance with any of the
requirements of applicable Environmental Laws or are the subject of any federal
or state investigation evaluating whether any remedial action is needed to
respond to a release of any toxic or hazardous waste or substance into the
environment, which non-compliance or remedial action could reasonably be
expected to have a Material Adverse Effect.
(b) The Company and each of its Subsidiaries have obtained all
necessary governmental permits, licenses and approvals which are material to the
operations conducted on their respective properties, including without
limitation, all required permits, licenses and approvals for (i) the emission of
air pollutants or contaminates, (ii) the treatment or pretreatment and discharge
of waste water or storm water, (iii) the treatment, storage, disposal or
generation of hazardous wastes, (iv) the withdrawal and usage of ground water or
surface water, and (v) the disposal of solid wastes, except where a failure to
obtain such permits, licenses and approvals would not result in a Material
Adverse Effect.
5.17. Investment Company Act. Neither the Company nor any Subsidiary is
an "investment company" or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended.
5.18. Public Utility Holding Company Act. Neither the Company nor any
Subsidiary is a "holding company" or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
5.19. Insurance. The Property of the Company and its Subsidiaries is
insured with financially sound and reputable insurance companies not Affiliates
of the Company, in such amounts, with such deductibles and covering such risks
as are customarily carried by companies engaged in similar business and owning
similar properties.
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.1. Reporting. The Company will maintain, for itself and each
Subsidiary, a system of accounting established and administered in accordance
with generally accepted accounting principles, and furnish to the Lenders:
(i) Within ninety (90) days after the close of each of its fiscal
years, an unqualified audit report certified by independent
certified public accountants acceptable to the Lenders,
prepared in accordance with Agreement Accounting Principles on
a consolidated basis for itself and its Subsidiaries,
including a balance sheet as of
48
the end of such period, related statements of income,
shareholders' equity and cash flows, all certified as accurate
by its chief financial officer, chief accounting officer or
treasurer.
(ii) Within forty-five (45) days after the close of the first three
(3) quarterly periods of each of its fiscal years, for itself
and its Subsidiaries, a consolidated unaudited balance sheet
as at the close of each such period and consolidated
statements of income, shareholders' equity and cash flows for
the period from the beginning of such fiscal year to the end
of such quarter, all certified as accurate by its chief
financial officer, chief accounting officer or treasurer.
(iii) Together with the financial statements required under Sections
6.1(i) and (ii), a compliance certificate in substantially the
form of Exhibit B signed by its chief financial officer, chief
accounting officer or treasurer showing the calculations
necessary to determine compliance with this Agreement and
stating that no Default or Unmatured Default exists, or if any
Default or Unmatured Default exists, stating the nature and
status thereof.
(iv) Within forty-five (45) days (or ninety (90) days with respect
to the fourth quarter) after the end of each fiscal quarter of
each fiscal year of the Company, a consolidating "key income
statement figures report" of the Company and its Subsidiaries
for the portion of such fiscal year elapsed through the end of
such fiscal quarter, prepared on a basis consistent with the
most recent such report of the Company delivered to the
Administrative Agent prior to the Closing Date, and certified
as accurate by an Authorized Officer.
(v) Within ten (10) Business Days after the Company or any ERISA
Affiliate knows or has reason to know that a Termination Event
has occurred which might be reasonably expected materially to
adversely affect the ability of the Company and its
Subsidiaries, taken as a whole, to carry on business
substantially as now being or heretofore conducted, or to
materially adversely affect the financial condition of the
Company and its Subsidiaries taken as a whole, a written
statement of an Authorized Officer describing such Termination
Event and the action, if any, which the Company or any ERISA
Affiliate has taken, is taking or proposes to take with
respect thereto, and when known, any action taken or
threatened by the IRS, DOL, PBGC or a Multiemployer Plan with
respect thereto.
(vi) Within ten (10) Business Days after the Company or any ERISA
Affiliate knows or has reason to know that a prohibited
transaction (defined in Sections 406 of ERISA and 4975 of the
IRC) has occurred, a statement of an Authorized Officer
describing such transaction and the action which the Company
or any ERISA Affiliate has taken, is taking or proposes to
take with respect thereto.
(vii) Within ten (10) Business Days after the filing thereof with
the IRS, a copy of each funding waiver request filed with
respect to any Benefit Plan and all communications received by
the Company or any ERISA Affiliate with respect to such
request.
49
(viii) Within ten (10) Business Days after receipt by the Company or
any ERISA Affiliate of the PBGC's intention to terminate a
Benefit Plan or to have a trustee appointed to administer a
Benefit Plan, which termination or appointment might be
reasonably expected materially to adversely affect the ability
of the Company and its Subsidiaries, taken as a whole, to
carry on business substantially as now being or heretofore
conducted, or to materially adversely affect the financial
condition of the Company and its Subsidiaries taken as a
whole, copies of each such notice.
(ix) Within ten (10) Business Days after receipt by the Company or
any ERISA Affiliate of any unfavorable determination letter
from the IRS regarding the qualification of a Plan under
Section 401(a) of the IRC which might be reasonably expected
materially to adversely affect the ability of the Company and
its Subsidiaries, taken as a whole, to carry on business
substantially as now being or heretofore conducted, or to
materially adversely affect the financial condition of the
Company and its Subsidiaries taken as a whole, copies of each
such letter.
(x) Within ten (10) Business Days after receipt by the Company or
any ERISA Affiliate of a notice from a Multiemployer Plan
regarding the imposition of withdrawal liability which
liability might be reasonably expected materially to adversely
affect the ability of the Company and its Subsidiaries, taken
as a whole, to carry on business substantially as now being or
heretofore conducted, or to materially adversely affect the
financial condition of the Company and its Subsidiaries taken
as a whole, copies of each such notice.
(xi) Within ten (10) Business Days after the Company or any ERISA
Affiliate fails to make a required installment or any other
required payment under Section 412 of the IRC on or before the
due date for such installment or payment which failure might
be reasonably expected materially to adversely affect the
ability of the Company and its Subsidiaries, taken as a whole,
to carry on business substantially as now being or heretofore
conducted, or to materially adversely affect the financial
condition of the Company and its Subsidiaries taken as a
whole, a notification of such failure.
(xii) Within ten (10) Business Days after the Company or any ERISA
Affiliate knows or has reason to know (a) a Multiemployer Plan
has been terminated, (b) the administrator or plan sponsor of
a Multiemployer Plan intends to terminate a Multiemployer
Plan, or (c) the PBGC has instituted or will institute
proceedings under Section 4042 of ERISA to terminate a
Multiemployer Plan, which termination or proceedings might be
reasonably expected materially to adversely affect the ability
of the Company and its Subsidiaries, taken as a whole, to
carry on business substantially as now being or heretofore
conducted, or to materially adversely affect the financial
condition of the Company and its Subsidiaries taken as a
whole.
(xiii) As soon as possible and in any event within ten (10) days
after the Company knows that any material unfunded liability
has arisen with respect to any Foreign
50
Pension Plan, a statement, signed by the chief financial
officer or treasurer of the Company, describing said material
unfunded liability and the action which the Company proposes
to take with respect thereto.
(xiv) As soon as possible and in any event within ten (10) days
after receipt by the Company, a copy of (a) any notice or
claim to the effect that the Company or any of its
Subsidiaries is or may be liable to any Person as a result of
the release by the Company, any of its Subsidiaries, or any
other Person of any toxic or hazardous waste or substance into
the environment, and (b) any notice alleging any violation of
any federal, state or local environmental, health or safety
law or regulation by the Company or any of its Subsidiaries,
which, in either case, could reasonably be expected to have a
Material Adverse Effect.
(xv) Promptly upon the furnishing thereof to the shareholders of
the Company, copies of all financial statements, reports and
proxy statements so furnished.
(xvi) Promptly upon the filing thereof, copies of all registration
statements or other regular reports not otherwise provided
pursuant to this Section 6.1 which the Company or any of its
Subsidiaries files with the Securities and Exchange
Commission.
(xvii) Such other information (including non-financial information)
as the Administrative Agent or Lender may from time to time
reasonably request.
For purposes of this Section 6.1, the Company and any ERISA Affiliate
shall be deemed to know all facts known by the administrator of any
Plan of which the Company or any ERISA Affiliate is the plan sponsor.
6.2. Use of Proceeds. The Company will, and will cause each Subsidiary
to, use the proceeds of the Credit Extensions for general corporate purposes,
including for working capital, refinancing the Indebtedness under the Existing
Credit Agreement and Permitted Acquisitions. The Borrowers shall use the
proceeds of Credit Extensions in compliance with all applicable legal and
regulatory requirements and any such use shall not result in a violation of any
such requirements, including, without limitation, Regulations T, U and X, the
Securities Act of 1933 and the Securities Exchange Act of 1934 and the
regulations promulgated thereunder.
6.3. Notice of Default. The Company will, and will cause each
Subsidiary to, give prompt notice in writing to the Lenders of the occurrence of
any Default or Unmatured Default and of any other development, financial or
otherwise, which could reasonably be expected to have a Material Adverse Effect.
6.4. Conduct of Business. The Company will, and will cause each
Subsidiary to, carry on and conduct its business in substantially the same
manner and only in substantially the same fields of enterprise as conducted by
the Company or its Subsidiaries as of the Closing Date, and, except as otherwise
permitted by Section 6.13, do all things necessary to remain duly incorporated
or organized, validly existing and (to the extent such concept applies to such
entity) in good standing as a corporation, partnership or limited liability
company in its jurisdiction of
51
incorporation or organization, as the case may be, and maintain all requisite
authority to conduct its business in each jurisdiction in which its business is
conducted.
6.5. Taxes. The Company will, and will cause each Subsidiary to, file
on a timely basis complete and correct United States federal and applicable
foreign, state and local tax returns required by law and pay when due all taxes,
assessments and governmental charges and levies upon it or its income, profits
or Property, except those which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves have been set aside in
accordance with Agreement Accounting Principles.
6.6. Insurance. The Company will, and will cause each Subsidiary to,
maintain with financially sound and reputable insurance companies insurance on
their Property in such amounts and covering such risks as is consistent with
sound business practice, and the Company will furnish to any Lender upon request
full information as to the insurance carried.
6.7. Compliance with Laws; Maintenance of Plans. The Company will, and
will cause each Subsidiary to, (i) comply with all laws, rules, regulations,
orders, writs, judgments, injunctions, decrees or awards to which it may be
subject including, without limitation, all Environmental Laws, and (ii)
establish, maintain and operate all Plans to comply in all material respects
with the provisions of ERISA and the IRC, and the regulations and
interpretations thereunder, where the failure to so comply might reasonably be
expected materially to impair the ability of the Company and the Subsidiaries,
taken as a whole, to carry on business substantially as now being conducted or
to affect materially and adversely the financial condition of the Company and
the Subsidiaries, taken as a whole.
6.8. Maintenance of Properties. The Company will, and will cause each
Subsidiary to, do all things necessary to maintain, preserve, protect and keep
its Property in good repair, working order and condition, and make all necessary
and proper repairs, renewals and replacements so that its business carried on in
connection therewith may be properly conducted at all times.
6.9. Inspection; Keeping of Books and Records. The Company will, and
will cause each Subsidiary to, permit the Administrative Agent and the Lenders,
by their respective representatives and agents, to inspect any of the Property,
books and financial records of the Company and each Subsidiary, to examine and
make copies of the books of accounts and other financial records of the Company
and each Subsidiary, and to discuss the affairs, finances and accounts of the
Company and each Subsidiary with, and to be advised as to the same by, their
respective officers at such reasonable times and intervals as the Administrative
Agent or Lender may designate. The Company shall keep and maintain, and cause
each of its Subsidiaries to keep and maintain, in all material respects, proper
books of record and account in which entries in conformity with Agreement
Accounting Principles shall be made of all dealings and transactions in relation
to their respective businesses and activities. If a Default has occurred and is
continuing, the Company, upon the Administrative Agent's request, shall turn
over copies of any such records to the Administrative Agent or its
representatives.
6.10. Addition of Guarantors. As promptly as possible but in any event
within thirty (30) days after any Domestic Subsidiary becomes a Subsidiary of
the Company, the Company
52
shall cause each such Domestic Subsidiary to deliver to the Administrative Agent
a duly executed supplement to the Guaranty pursuant to which such Subsidiary
agrees to be bound by the terms and provisions of the Guaranty.
6.11. Dividends and Distributions. The Company will not, nor will it
permit any of its Subsidiaries to, declare or pay any dividends on its capital
stock (other than dividends payable in its own capital stock), make any
distributions to any of its equity owners, redeem, repurchase or otherwise
acquire or retire any of its capital stock or other equity interests at any time
outstanding or pay any royalties to any Affiliate (collectively,
"Distributions") other than:
(i) Purchases, redemptions or retirements of the Borrower's
Capital Stock or any warrants, rights or options to purchase
or acquire any Capital Stock (i) in exchange for or out of the
net cash proceeds to the Company obtained within three (3)
months of such purchase, redemption or retirement from the
issue or sale of other shares of Capital Stock of the Company
or warrants, rights or options to purchase or acquire any
shares of its Capital Stock, or (ii) that was sold,
transferred or issued (a) as directors' qualifying shares of
Capital Stock, (b) as any de minimus number of shares of
Capital Stock to foreign domiciliaries as may be required by
law, or (c) in connection with any Permitted Acquisition.
(ii) Repurchases of up to 50,000 shares of Capital Stock of the
Company per year for use in connection with employee stock
option and other employee benefit plans.
(iii) Distributions by any Subsidiary of the Company to the Company
or to a Wholly-Owned Subsidiary of the Company.
(iv) Other Distributions, provided the aggregate amount of
Distributions (excluding Distributions pursuant to Section
6.11(ii) and (iii)) made during the period from and after June
30, 2001 to and including the date of the making of the
Distribution in question would not exceed the sum of (1)
$10,000,000 plus (2) fifty percent (50%) of Consolidated Net
Income for such period, computed on a cumulative basis for
said entire period (or if such Consolidated Net Income is a
deficit figure, then minus 100% of such deficit).
Distributions described in clauses (i), (ii) and (iv) above shall not be
permitted to be made or declared at a time when a Default or Unmatured Default
is continuing or would result therefrom.
6.12. Indebtedness. The Company will not, nor will it permit any
Subsidiary to, create, incur or suffer to exist any Indebtedness, except:
(i) The Loans and any other Obligations hereunder.
(ii) Indebtedness existing on the date hereof and described on
Schedule 6.12, and Permitted Refinancing Indebtedness in
respect thereof.
(iii) Indebtedness owed (a) to the Company by any Guarantor, (b) to
any Guarantor by the Company or any other Guarantor, (c) to
any Subsidiary of the Company that is not a Guarantor by any
other Subsidiary of the Company that is not a Guarantor,
53
and (d) to the Company or any Guarantor by any Subsidiary of
the Company that is not a Guarantor existing as of the date
hereof and described on Schedule 6.12.
(iv) Indebtedness constituting (a) accounts payable of the Company
and its Subsidiaries arising in the ordinary course of
business payable on terms customary in the trade and
consistent with past practice, (b) payroll accruals, (c) tax,
assessments and other governmental charges which are not yet
due or which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves have
been set aside in accordance with Agreement Accounting
Principles, and (d) other similar unsecured Indebtedness
incurred in the ordinary course of business and consistent
with past practice, but not incurred through the borrowing of
money or the obtaining of credit.
(v) Indebtedness in connection with overdraft facilities in an
aggregate outstanding principal amount not to exceed
$10,000,000.
(vi) Indebtedness evidenced by letters of credit (other than
Facility LCs) in an aggregate face amount not to exceed
$10,000,000 at any time.
(vii) So long as the Company shall have prepaid the outstanding
Obligations in accordance with Section 2.8.2, additional
unsecured Indebtedness in an aggregate amount not to exceed
$50,000,000.
6.13. Merger. The Company will not, nor will it permit any Subsidiary
to, merge or consolidate with or into any other Person, except that, if after
giving effect to any such merger or consolidation no Default or Unmatured
Default would exist, a Subsidiary may merge or consolidate (i) into the Company
or a Wholly-Owned Subsidiary such that the Company or such Wholly-Owned
Subsidiary is the surviving entity, provided that in any merger or consolidation
involving a Domestic Subsidiary and a Foreign Subsidiary, the Domestic
Subsidiary shall be the surviving entity, or (ii) in connection with a Permitted
Acquisition.
6.14. Sale of Assets. The Company will not, nor will it permit any
Subsidiary to, lease, sell, transfer or otherwise dispose of its Property to any
other Person, except:
(i) Sales of inventory and obsolete or excess assets in the
ordinary course of business.
(ii) Sales, leases and transfers of Property (a) from the Company
to any Guarantor, and (b) from any Subsidiary of the Company
to the Company or any Guarantor.
(iii) Sales, transfers or issuances of Capital Stock, warrants,
rights or options to purchase or otherwise acquire Capital
Stock, or other securities exchangeable for or convertible
into Capital Stock, of any Subsidiary (a) constituting
directors' qualifying shares of Capital Stock, (b)
constituting any de minimus number of shares of Capital Stock
to foreign domiciliaries as may be required by law, (c) in
connection with any Permitted Acquisition or (d) to employees
of any Subsidiary as part of any incentive stock arrangement
(other than in connection with a Permitted Acquisition) so
long as, after giving effect to such issuance under this
54
clause (d), (1) no Subsidiary shall cease to be a Subsidiary
and (2) the aggregate fair value (as determined in good faith
at the time of such issuance by the Board of Directors of the
Company or such person or committee as the Board of Directors
of the Company may authorize to make such determination
pursuant to the terms of any such incentive stock arrangement)
of all such Capital Stock under this clause (d) shall not
exceed $2,000,000.
(iv) Sales, assignments, transfers, leases, conveyances or other
dispositions of its Property and other assets if such
transaction (a) is for consideration consisting at least
eighty-five percent (85%) of cash, (b) is for not less than
fair market value (as determined in good faith by the
Company's board of directors), (c) after giving effect to such
sale, lease, transfer or disposal, no Default or Unmatured
Default shall exist, and (d) together with all other Property
of the Company and its Subsidiaries previously leased, sold or
disposed of (other than inventory and obsolete or excess
assets in the ordinary course of business) calculated at book
value (1) during the immediately preceding twelve-month
period, represents the disposition of (A) not greater than
twenty percent (20%) of the Company's Consolidated Total
Assets at the end of the fiscal year immediately preceding
that in which such transaction is proposed to be entered into
and (B) assets that contributed not greater than twenty
percent (20%) of the Company's Consolidated Net Income for
such preceding fiscal year, and (2) during the period from the
Closing Date to the date of such proposed transaction,
represents the disposition of (A) not greater than thirty-five
percent (35%) of the Company's Consolidated Total Assets at
the end of the fiscal year immediately preceding that in which
such transaction is proposed to be entered into and (B) assets
that contributed not greater than thirty-five percent (35%) of
the Company's Consolidated Net Income for such preceding
fiscal year.
6.15. Investments and Acquisitions. The Company will not, nor will it
permit any Subsidiary to, make or suffer to exist any Investments (including
without limitation, loans and advances to, and other Investments in,
Subsidiaries), or commitments therefor, or to create any Subsidiary or to become
or remain a partner in any partnership or joint venture, or to make any
Acquisition, except:
(i) Cash Equivalent Investments.
(ii) Existing Investments in Subsidiaries and other Investments in
existence on the date hereof and described in Schedule 6.15.
(iii) Investments (a) by any Subsidiary in the Company or any
Guarantor and (b) constituting Indebtedness permitted under
Section 6.12(iii).
(iv) Investments resulting from Financial Contracts entered into in
the ordinary course of business and which do not violate the
terms of Section 6.18.
55
(v) Acquisitions meeting the following requirements or otherwise
approved by the Required Lenders (each such Acquisition
constituting a "Permitted Acquisition"):
(a) as of the date of the consummation of such Acquisition, no
Default or Unmatured Default shall have occurred and be
continuing or would result from such Acquisition, and the
representation and warranty contained in Section 5.10 shall be
true both before and after giving effect to such Acquisition;
(b) such Acquisition is consummated on a non-hostile basis
pursuant to a negotiated acquisition agreement approved by the
board of directors or other applicable governing body of the
seller or entity to be acquired, and no material challenge to
such Acquisition (excluding the exercise of appraisal rights)
shall be pending or threatened by any shareholder or director
of the seller or entity to be acquired;
(c) the business to be acquired in such Acquisition is similar
or related to one or more of the lines of business in which
the Company and its Subsidiaries are engaged on the Closing
Date;
(d) as of the date of the consummation of such Acquisition,
(x) all material approvals required in connection therewith
shall have been obtained and (y) the Company shall be in
compliance with Section 6.10;
(e) the Purchase Price for the Acquisition shall (1) at any
time the Leverage Ratio shall be greater than or equal to 3.00
to 1.00, not exceed an amount equal to (A) $10,000,000 per
transaction or (B) together with all other Permitted
Acquisitions permitted under this Section 6.15(v), $15,000,000
per year, (2) at any time the Leverage Ratio shall be greater
than or equal to 2.50 to 1.00 but less than 3.00 to 1.00, not
exceed an amount equal to (A) $15,000,000 per transaction or
(B) together with all other Permitted Acquisitions permitted
under this Section 6.15(v), $30,000,000 per year, in each
case, including the incurrence or assumption of any
Indebtedness in connection therewith, and, for purposes of
this clause (e), Leverage Ratio shall be determined as of the
last day of the most recent fiscal quarter for which a
compliance certificate shall have been delivered in accordance
with Section 6.1, and (3) at any other time, not be subject to
any limitation under this clause (e); and
(f) with respect to each Permitted Acquisition with respect to
which the Purchase Price shall be greater than $2,000,000, not
less than ten (10) days prior to the consummation of such
Permitted Acquisition, the Company shall have delivered to the
Administrative Agent, in form and substance reasonably
satisfactory to the Administrative Agent, a pro forma
consolidated balance sheet, income statement and cash flow
statement of the Company and its Subsidiaries (the
"Acquisition Pro Forma"), based on the Company's most recent
financial statements delivered pursuant to Section 6.1(i) and
using historical financial statements for the acquired entity
provided by the seller(s) or which shall be
56
complete and shall fairly present, in all material respects,
the financial condition and results of operations and cash
flows of the Company and its Subsidiaries in accordance with
Agreement Accounting Principles, but taking into account such
Permitted Acquisition and the funding of all Credit Extensions
in connection therewith, and such Acquisition Pro Forma shall
reflect that, on a pro forma basis, the Company would have
been in compliance with the financial covenants set forth in
Section 6.21 for the four fiscal quarter period reflected in
the compliance certificate most recently delivered to the
Administrative Agent pursuant to Section 6.1(iii) prior to the
consummation of such Permitted Acquisition (giving effect to
such Permitted Acquisition and all Credit Extensions funded in
connection therewith as if made on the first day of such
period).
(vi) Investments consisting of loans or advances made by the
Company or any of its Subsidiaries to employees and officers
of the Company or any of the Company's Subsidiaries for
travel, entertainment and relocation expenses in the ordinary
course of business in an aggregate principal amount
outstanding at any one time not to exceed $2,000,000.
(vii) Investments consisting of receivables arising from the sale of
goods and services in the ordinary course of business of the
Company and its Subsidiaries.
(viii) Investments not otherwise permitted by clauses (i) through
(vii) above, provided that at the time such Investment is
made, (a) the Purchase Price of all Investments made pursuant
to this clause (viii) (including such Investment) in the
aggregate shall not exceed twenty-five percent (25%) of
Consolidated Tangible Net Worth as of the end of the fiscal
quarter ending immediately prior to the fiscal quarter in
which such Investment is made and (b) no Default or Unmatured
Default is continuing or would result therefrom.
6.16. Liens. The Company will not, nor will it permit any Subsidiary
to, create, incur, or suffer to exist any Lien in, of or on the Property of the
Company or any of its Subsidiaries, except:
(i) Liens for taxes, assessments or governmental charges or levies
on its Property if the same shall not at the time be
delinquent or thereafter can be paid without penalty, or are
being contested in good faith and by appropriate proceedings
and for which adequate reserves in accordance with Agreement
Accounting Principles shall have been set aside on its books.
(ii) Liens imposed by law, such as carriers', warehousemen's and
mechanics' liens and other similar liens arising in the
ordinary course of business which secure payment of
obligations not more than sixty (60) days past due or which
are being contested in good faith by appropriate proceedings
and for which adequate reserves in accordance with Agreement
Accounting Principles shall have been set aside on its books.
57
(iii) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions,
or other social security or retirement benefits, or similar
legislation.
(iv) Utility easements, building restrictions and such other
encumbrances or charges against real property as are of a
nature generally existing with respect to properties of a
similar character and which do not in any material way affect
the marketability of the same or interfere with the use
thereof in the business of the Company or its Subsidiaries.
(v) Liens existing on the date hereof and described on Schedule
6.16.
(vi) Liens, if any, securing the Loans and other Obligations
hereunder.
6.17. Transactions with Affiliates. The Company will not, and will not
permit any Subsidiary to, enter into any transaction (including, without
limitation, the purchase or sale of any Property or service) with, or make any
payment or transfer to, any Affiliate except in the ordinary course of business
and pursuant to the reasonable requirements of the Company's or such
Subsidiary's business and upon fair and reasonable terms no less favorable to
the Company or such Subsidiary than the Company or such Subsidiary would obtain
in a comparable arm's-length transaction.
6.18. Financial Contracts. The Company shall not and shall not permit
any of its consolidated Subsidiaries to enter into any Financial Contract, other
than Financial Contracts pursuant to which the Company or such Subsidiary hedged
its actual or anticipated interest rate, foreign currency or commodity exposure
existing or anticipated at the time thereof.
6.19. ERISA. Except to the extent that such act, or failure to act
would not result singly, or in the aggregate, after taking into account all
other such acts or failures to act, in a liability which might be reasonably
expected materially to adversely affect the ability of the Company and its ERISA
Affiliates, taken as a whole, to carry on business substantially as now being or
heretofore conducted, or to materially adversely affect the financial condition
of the Company and its ERISA Affiliates taken as a whole, (i) engage, or permit
any ERISA Affiliate to engage, in any prohibited transaction described in
Sections 406 of ERISA or 4975 of the IRC for which a statutory or class
exemption is not available or a private exemption has not been previously
obtained from the DOL; (ii) permit to exist any accumulated funding deficiency
(as defined in Sections 302 of ERISA and 412 of the IRC); (iii) fail, or permit
any ERISA Affiliate to fail, to pay timely required contributions or annual
installments due with respect to any waived funding deficiency of any Benefit
Plan; (iv) terminate, or permit any ERISA Affiliate to terminate, any Benefit
Plan which would result in any liability of the Company or any ERISA Affiliate
under Title IV of ERISA; (v) fail to make any contribution or payment to any
Multiemployer Plan which the Company or any ERISA Affiliate may be required to
make under any agreement relating to such Multiemployer Plan, or any law
pertaining thereto; (vi) fail, or permit any ERISA Affiliate to fail, to pay any
required installment or any other payment required under Section 412 of the IRC
on or before the due date for such installment or other payment; (vii) amend, or
permit any ERISA Affiliate to amend, a Benefit Plan resulting in an increase in
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current liability for the plan year such that the Company or any ERISA Affiliate
is required to provide security to such Plan under Section 401(a)(29) of the
IRC.
6.20. Environmental Compliance. The Company will not become, or permit
any Subsidiary to become, subject to any liabilities or costs which might be
reasonably expected materially to adversely affect the ability of the Company
and its Subsidiaries, taken as a whole, to carry on business substantially as
now being or heretofore conducted, or to materially adversely affect the
financial condition of the Company and its Subsidiaries taken as a whole,
arising out of or related to (i) the release or threatened release at any
location of any contaminant into the environment, or any remedial action in
response thereto, or (ii) any violation of any environmental, health or safety
requirements of law (including, without limitation, any Environmental Laws).
6.21. Financial Covenants.
6.21.1. Maximum Leverage Ratio. As of the last day of each fiscal
quarter, the Company and its consolidated Subsidiaries shall not permit the
ratio (the "Leverage Ratio") of (i) Total Funded Debt to (ii) EBITDA of the
Company and its Subsidiaries as at the end of and for any period of four
consecutive fiscal quarters ending to be greater than (i) 4.25 to 1.00 for the
periods ending on or about September 30, 2001 and December 31, 2001, (ii) 4.00
to 1.00 for the periods ending on or about March 31, 2002, June 30, 2002 and
September 30, 2002, (iii) 3.75 to 1.00 for the periods ending on or about
December 31, 2002, March 31, 2003, June 30, 2003 and September 30, 2003, and
(iv) 3.50 to 1.00 for each period thereafter. The Leverage Ratio shall be
calculated, in each case, determined as of the last day of each fiscal quarter
based upon (a) for Total Funded Debt, the average month-end Total Funded Debt
for the twelve-month period ending as of the last day of each such fiscal
quarter; and (b) for EBITDA, the actual amount for the four-quarter period
ending on such day, calculated, with respect to Permitted Acquisitions, on a pro
forma basis using historical audited and reviewed unaudited financial statements
obtained from the seller(s) in such Permitted Acquisition, broken down by fiscal
quarter in the Company's reasonable judgment and reasonably satisfactory to the
Administrative Agent and as reported to the Administrative Agent pursuant to the
provisions of Section 6.15(v).
6.21.2. Minimum Fixed Charge Coverage Ratio. The Company and its
consolidated Subsidiaries shall not permit the ratio ("Fixed Charge Coverage
Ratio"), without duplication, of (i) the sum of (a) EBITDA for such period, plus
(b) Rentals for such period, to (ii) the sum of (a) cash Interest Expense during
such period, plus (b) Rentals for such period, as at the end of and for any
period of four consecutive fiscal quarters ending, to be less than (x) 1.75 to
1.00 for the periods ending on or about September 30, 2001, December 31, 2001,
March 31, 2002, June 30, 2002 and September 30, 2002, and (y) 2.00 to 1.00 for
each period thereafter. The Fixed Charge Coverage Ratio shall be determined as
of the last day of each fiscal quarter based upon, for all components thereof,
the actual amount for the four-quarter period ending on such day, calculated,
with respect to Permitted Acquisitions, on a pro forma basis using historical
audited and reviewed unaudited financial statements obtained from the seller(s)
in such Permitted Acquisition, broken down by fiscal quarter in the Company's
reasonable judgment and reasonably satisfactory to the Administrative Agent and
as reported to the Administrative Agent pursuant to the provisions of Section
6.15(v).
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6.21.3. Minimum Consolidated Net Worth. The Company shall not permit
its Consolidated Net Worth at any time to be less than the sum of (a)
$100,000,000, plus (b) fifty percent (50%) of the sum of Consolidated Net Income
(if positive) earned in each fiscal quarter, commencing with the fiscal quarter
ending on September 30, 2001, plus (c) seventy-five percent (75%) of the amount,
if any, by which stockholders' equity of the Company is, in accordance with
Agreement Accounting Principles, adjusted from time to time as a result of the
issuance of any Capital Stock (excluding Capital Stock issued pursuant to any
employee compensation plan).
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events shall
constitute a Default:
7.1. Breach of Representations or Warranties. Any representation or
warranty made or deemed made by or on behalf of the Company or any of its
Subsidiaries to the Lenders or the Administrative Agent under or in connection
with this Agreement, any Credit Extension, or any certificate or information
delivered in connection with this Agreement or any other Loan Document shall be
false in any material respect on the date as of which made.
7.2. Failure to Make Payments When Due. Nonpayment of (i) principal of
any Loan when due, (ii) any Reimbursement Obligation within one (1) Business Day
after the same becomes due, or (iii) interest upon any Loan or any Commitment
Fee, LC Fee or other Obligations under any of the Loan Documents within five (5)
Business Days after such interest, fee or other Obligation becomes due.
7.3. Breach of Covenants. The breach by any Borrower of any of the
terms or provisions of Section 6.3 or Sections 6.10 through 6.21; or the breach
by any Borrower of any of the other terms or provisions of Article VI which is
not remedied within five (5) Business Days after the occurrence thereof.
7.4. Other Breaches. The breach by any Borrower (other than a breach
which constitutes a Default under another Section of this Article VII) of any of
the terms or provisions of this Agreement or any other Loan Document which is
not remedied within thirty (30) days after the earlier of (i) the date the
applicable Borrower obtains knowledge thereof, or (ii) the date written notice
thereof shall have been given to the applicable Borrower by the Administrative
Agent or any Lender.
7.5. Default as to Other Indebtedness.
(i) Failure of the Company or any of its Subsidiaries to pay when due
any Indebtedness which, individually or in the aggregate exceeds $5,000,000 (or
the Approximate Equivalent Amount in currencies other than Dollars) (such
Indebtedness being referred to as "Material Indebtedness"); or
(ii) Any Material Indebtedness of the Company or any of its
Subsidiaries shall be declared to be due and payable or required to be prepaid
or repurchased (other than by a regularly scheduled payment) prior to the stated
maturity thereof; or
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(iii) The Company or any of its Subsidiaries shall fail to pay, or
shall admit in writing its inability to pay, its debts generally as they become
due; or
(iv) The default by the Company or any of its Subsidiaries in the
performance (beyond the applicable grace period with respect thereto, if any) of
any term, provision or condition contained in any agreement under which any such
Material Indebtedness was created or is governed, or any other event shall occur
or condition exist, the effect of which default or event is to cause, or to
permit the holder or holders of such Material Indebtedness to cause such
Material Indebtedness to become due prior to its stated maturity.
7.6. Voluntary Bankruptcy; Appointment of Receiver; Etc. Any Borrower
or any Guarantor shall (i) have an order for relief entered with respect to it
under the Federal bankruptcy laws as now or hereafter in effect, (ii) make an
assignment for the benefit of creditors, (iii) apply for, seek, consent to, or
acquiesce in, the appointment of a receiver, custodian, trustee, examiner,
liquidator or similar official for it or any Substantial Portion of its
Property, (iv) institute any proceeding seeking an order for relief under the
Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate
it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation,
reorganization, arrangement, adjustment or composition of it or its debts under
any law relating to bankruptcy, insolvency or reorganization or relief of
debtors or fail to file an answer or other pleading denying the material
allegations of any such proceeding filed against it, (v) take any corporate or
partnership action to authorize or effect any of the foregoing actions set forth
in this Section 7.6, or (vi) fail to contest in good faith any appointment or
proceeding described in Section 7.7.
7.7. Involuntary Bankruptcy; Appointment of Receiver; Etc. Without the
application, approval or consent of the Company or any of its Subsidiaries, a
receiver, trustee, examiner, liquidator or similar official shall be appointed
for the Company or any of its Subsidiaries or any Substantial Portion of its
Property, or a proceeding described in Section 7.6(iv) shall be instituted
against the Company or any of its Subsidiaries and such appointment continues
undischarged or such proceeding continues undismissed or unstayed for a period
of sixty (60) consecutive days.
7.8. Custody or Control of Property. Any court, government or
governmental agency shall condemn, seize or otherwise appropriate, or take
custody or control of, all or any portion of the Property of the Company and its
Subsidiaries which, when taken together with all other Property of the Company
and its Subsidiaries so condemned, seized, appropriated, or taken custody or
control of, during the twelve-month period ending with the month in which any
such action occurs, constitutes a Substantial Portion.
7.9. Judgments. The Company or any of its Subsidiaries shall fail
within thirty (30) days to pay, bond or otherwise discharge one or more (i)
judgments or orders for the payment of money (except to the extent covered by
independent third-party insurance as to which the insurer has not disclaimed
coverage) in excess of $5,000,000 (or the Approximate Equivalent Amount thereof
in currencies other than Dollars) in the aggregate, or (ii) nonmonetary
judgments or orders which, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect, which judgment(s), in any such case,
is/are not stayed on appeal or otherwise being appropriately contested in good
faith.
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7.10. ERISA Liabilities. Any of (i) A Termination Event occurs with
respect to any Plan and, within thirty (30) days after the reporting of such
Termination Event to the Administrative Agent (who shall promptly notify the
Lenders), the Administrative Agent shall have notified the Company in writing
that (a) the Required Lenders have determined that such Termination Event might
be reasonably expected materially to impair the right of the Company and its
ERISA Affiliates, taken as a whole, to carry on business substantially as now
being or heretofore conducted, or (b) materially adversely affects the financial
condition of the Company and its ERISA Affiliates taken as a whole, and as a
result thereof, an Default exists hereunder; or (ii) the plan administrator of
any Plan applies under Section 412(d) of the IRC for a waiver of the minimum
funding standards of Section 412(a) of the IRC and the Administrative Agent
believes that the substantial business hardship upon which the application for
the waiver is based might be reasonably expected materially to impair the right
of the Company and its ERISA Affiliates, taken as a whole, to carry on business
substantially as now being or heretofore conducted, or materially adversely
affects the financial condition of the Company and its ERISA Affiliates taken as
a whole; or (iii) the present value of the aggregate unfunded liabilities to
provide the accrued benefits under all Foreign Pension Plans exceeds in the
aggregate an amount equal to five percent (5%) of the fair market value of the
assets held in trust or other funding vehicles for accrued benefits under all
Foreign Pension Plans.
7.11. Environmental Matters. The Company or any of its Subsidiaries
shall (i) be the subject of any proceeding or investigation pertaining to the
release by the Company, any of its Subsidiaries or any other Person of any toxic
or hazardous waste or substance into the environment, or (ii) violate any
Environmental Law, which, in the case of an event described in clause (i) or
clause (ii), could reasonably be expected to have a Material Adverse Effect.
7.12. Change in Control. Any Change in Control shall occur.
7.13. Guarantor Revocation. Any guarantor of the Obligations shall
terminate or revoke any of its obligations under the applicable Guaranty or
breach any of the material terms of such Guaranty.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. Acceleration. Facility LC Collateral Account.
(i) If any Default described in Section 7.6 or 7.7 occurs with respect
to any Borrower, the obligations of the Lenders to make Loans hereunder and the
obligation and power of the LC Issuers to issue Facility LCs shall automatically
terminate and the Obligations shall immediately become due and payable without
any election or action on the part of the Administrative Agent, any LC Issuer or
any Lender, and the Borrowers will be and become thereby unconditionally
obligated, without any further notice, act or demand, to pay to the
Administrative Agent an amount in immediately available funds, which funds shall
be held in the Facility LC Collateral Account, equal to the difference of (x)
the amount of LC Obligations at such time, less (y) the amount on deposit in the
Facility LC Collateral Account at such time which is free and clear of all
rights and claims of third parties and has not been applied against
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the Obligations (such difference, the "Collateral Shortfall Amount"). If any
other Default occurs, the Required Lenders (or the Administrative Agent with the
consent of the Required Lenders) may (a) terminate or suspend the obligations of
the Lenders to make Loans hereunder and the obligation and power of the LC
Issuers to issue Facility LCs, or declare the Obligations to be due and payable,
or both, whereupon the Obligations shall become immediately due and payable,
without presentment, demand, protest or notice of any kind, all of which the
Borrowers hereby expressly waive, and (b) upon notice to the Borrowers and in
addition to the continuing right to demand payment of all amounts payable under
this Agreement, make demand on the Borrowers to pay, and the Borrowers will,
forthwith upon such demand and without any further notice or act, pay to the
Administrative Agent the Collateral Shortfall Amount, which funds shall be
deposited in the Facility LC Collateral Account.
(ii) If at any time while any Default is continuing, the Administrative
Agent determines that the Collateral Shortfall Amount at such time is greater
than zero, the Administrative Agent may make demand on the Borrowers to pay, and
the Borrowers will, forthwith upon such demand and without any further notice or
act, pay to the Administrative Agent the Collateral Shortfall Amount, which
funds shall be deposited in the Facility LC Collateral Account.
(iii) The Administrative Agent may at any time or from time to time
after funds are deposited in the Facility LC Collateral Account, apply such
funds to the payment of the Obligations and any other amounts as shall from time
to time have become due and payable by any Borrower to the Lenders or the LC
Issuers under the Loan Documents.
(iv) At any time while any Default is continuing, neither the Borrowers
nor any Person claiming on behalf of or through the Borrowers shall have any
right to withdraw any of the funds held in the Facility LC Collateral Account.
After all of the Obligations have been indefeasibly paid in full and the
Aggregate Commitment has been terminated, any funds remaining in the Facility LC
Collateral Account shall be returned by the Administrative Agent to the
Borrowers or paid to whomever may be legally entitled thereto at such time.
(v) If, within thirty (30) days after acceleration of the maturity of
the Obligations or termination of the obligations of the Lenders to make Loans
and the obligation and power of the LC Issuers to issue Facility LCs hereunder
as a result of any Default (other than any Default as described in Section 7.6
or 7.7 with respect to any Borrower and before any judgment or decree for the
payment of the Obligations due shall have been obtained or entered, the Required
Lenders (in their sole discretion) shall so direct, the Administrative Agent
shall, by notice to the Borrowers, rescind and annul such acceleration and/or
termination.
8.2. Amendments. Subject to the provisions of this Article VIII, the
Required Lenders (or the Administrative Agent with the consent in writing of the
Required Lenders) and the Borrowers may enter into agreements supplemental
hereto for the purpose of adding or modifying any provisions to the Loan
Documents or changing in any manner the rights of the Lenders or the Borrowers
hereunder or thereunder or waiving any Default hereunder or thereunder;
provided, however, that no such supplemental agreement shall, without the
consent of each Lender affected thereby:
63
(i) Extend the final maturity of any Loan, or extend the expiry
date of any Facility LC to a date after the Facility
Termination Date or forgive all or any portion of the
principal amount thereof or any Reimbursement Obligation
related thereto, or reduce the rate or extend the time of
payment of interest or fees thereon or Reimbursement
Obligations related thereto (other than a waiver of the
application of the default rate of interest pursuant to
Section 2.12 hereof).
(ii) Change the percentage specified in the definition of Required
Lenders or any other percentage of Lenders specified to be the
applicable percentage in this Agreement to act on specified
matters or otherwise amend the definitions of "Required
Lenders" or "Pro Rata Share".
(iii) Extend the Facility Termination Date, or increase the amount
or otherwise extend the term of the Commitment of any Lender
hereunder or the commitment to issue Facility LCs.
(iv) Permit any Borrower to assign its rights or obligations under
this Agreement.
(v) Other than pursuant to a transaction permitted by the terms of
this Agreement, release any guarantor of the Obligations or
all or substantially all of the collateral, if any, securing
the Obligations.
(vi) Amend this Section 8.2.
No amendment of any provision of this Agreement relating to the Administrative
Agent shall be effective without the written consent of the Administrative
Agent. No amendment of any provision of this Agreement relating to any LC Issuer
shall be effective without the written consent of such LC Issuer. No amendment
of any provision of this Agreement relating to the Swing Line Lender or any
Swing Line Loans shall be effective without the written consent of the Swing
Line Lender. The Administrative Agent may waive payment of the fee required
under Section 13.3.2 without obtaining the consent of any other party to this
Agreement.
8.3. Preservation of Rights. No delay or omission of the Lenders, the
LC Issuers or the Administrative Agent to exercise any right under the Loan
Documents shall impair such right or be construed to be a waiver of any Default
or an acquiescence therein, and the making of a Credit Extension notwithstanding
the existence of a Default or Unmatured Default or the inability of the
Borrowers to satisfy the conditions precedent to such Credit Extension shall not
constitute any waiver or acquiescence. Any single or partial exercise of any
such right shall not preclude other or further exercise thereof or the exercise
of any other right, and no waiver, amendment or other variation of the terms,
conditions or provisions of the Loan Documents whatsoever shall be valid unless
in writing signed by, or by the Administrative Agent with the consent of, the
requisite number of Lenders required pursuant to Section 8.2, and then only to
the extent in such writing specifically set forth. All remedies contained in the
Loan Documents or by law afforded shall be cumulative and all shall be available
to the Administrative Agent, the LC Issuers and the Lenders until all of the
Obligations have been paid in full.
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ARTICLE IX
GUARANTY
9.1. Guarantee of Obligations.
9.1.1. Company Guaranty. The Company hereby (i) guarantees, as
principal obligor and not as surety only, to the Lenders the prompt payment of
the principal of and any and all accrued and unpaid interest (including interest
which otherwise may cease to accrue by operation of any insolvency law, rule,
regulation or interpretation thereof) on the Credit Extensions and all other
Obligations of the Subsidiary Borrowers to the Lenders and the Administrative
Agent under this Agreement when due, whether by scheduled maturity, acceleration
or otherwise, all in accordance with the terms of this Agreement and the Notes,
including, without limitation, fees, reimbursement obligations, default
interest, indemnification payments and all reasonable costs and expenses
incurred by the Lenders and the Administrative Agent in connection with
enforcing any obligations of the Subsidiary Borrowers hereunder, including
without limitation the reasonable fees and disbursements of counsel, (ii)
guarantees the prompt and punctual performance and observance of each and every
term, covenant or agreement contained in this Agreement and the Notes to be
performed or observed on the part of any Subsidiary Borrower and (iii) agrees to
make prompt payment, on demand, of any and all reasonable costs and expenses
incurred by the Lenders or the Administrative Agent in connection with enforcing
the obligations of the Company hereunder, including, without limitation, the
reasonable fees and disbursements of counsel (all of the foregoing being
collectively referred to as the "Guaranteed Obligations").
9.1.2. Performance by Company. If for any reason any duty, agreement or
obligation of any Subsidiary Borrower contained in this Agreement shall not be
performed or observed by such Subsidiary Borrower as provided therein, or if any
amount payable under or in connection with this Agreement shall not be paid in
full when the same becomes due and payable, the Company undertakes to perform or
cause to be performed promptly each of such duties, agreements and obligations
and to pay forthwith each such amount to the Administrative Agent for the
account of the Lenders regardless of any defense or setoff or counterclaim which
such Subsidiary Borrower may have or assert, and regardless of any other
condition or contingency.
9.2. Nature of Guaranty. The obligations of the Company hereunder
constitute an absolute and unconditional and irrevocable guaranty of payment and
not a guaranty of collection and are wholly independent of and in addition to
other rights and remedies of the Lenders and the Administrative Agent and are
not contingent upon the pursuit by the Lenders and the Administrative Agent of
any such rights and remedies, such pursuit being hereby waived by the Company.
9.3. Waivers and Other Agreements. The Company hereby unconditionally
(a) waives any requirement that the Lenders or the Administrative Agent, upon
the occurrence of a Default first make demand upon, or seek to enforce remedies
against any Subsidiary Borrower before demanding payment under or seeking to
enforce the obligations of the Company hereunder, (b) covenants that the
obligations of the Company hereunder will not be discharged except by complete
performance of all obligations of each Subsidiary Borrower contained in this
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Agreement and the Notes, (c) agrees that the obligations of the Company
hereunder shall remain in full force and effect without regard to, and shall not
be affected or impaired, without limitation, by any invalidity, irregularity or
unenforceability in whole or in part of this Agreement or the Notes, or any
limitation on the liability of any Subsidiary Borrower thereunder, or any
limitation on the method or terms of payment thereunder which may or hereafter
be caused or imposed in any manner whatsoever (including, without limitation,
usury laws), (d) waives diligence, presentment and protest with respect to, and
any notice of default or dishonor in the payment of any amount at any time
payable by any Subsidiary Borrower under or in connection with this Agreement or
the Notes, and further waives any requirement of notice of acceptance of, or
other formality relating to, the obligations of the Company hereunder and (e)
agrees that the Guaranteed Obligations shall include any amounts paid by any
Subsidiary Borrower to the Lenders or the Administrative Agent which may be
required to be returned to such Subsidiary Borrower or to their representative
or to a trustee, custodian or receiver for such Subsidiary Borrower.
9.4. Obligations Absolute. The obligations, covenants, agreements and
duties of the Company under this Agreement shall not be released, affected or
impaired by any of the following whether or not undertaken with notice to or
consent of the Company: (a) an assignment or transfer, in whole or in part, of
the Loans made to any Subsidiary Borrower or of this Agreement or any Note
although made without notice to or consent of the Company, or (b) any waiver by
any Lender or the Administrative Agent or by any other person, of the
performance or observance by any Subsidiary Borrower of any of the agreements,
covenants, terms or conditions contained in this Agreement or in the Notes, or
(c) any indulgence in or the extension of the time for payment by any Subsidiary
Borrower of any amounts payable under or in connection with this Agreement or
any Note, or of the time for performance by any Subsidiary Borrower of any other
obligations under or arising out of this Agreement or any Note, or the extension
or renewal thereof, or (d) the modification, amendment or waiver (whether
material or otherwise) of any duty, agreement or obligation of any Subsidiary
Borrower set forth in this Agreement or any Note (the modification, amendment or
waiver from time to time of this Agreement and the Notes being expressly
authorized without further notice to or consent of the Company), or (e) the
voluntary or involuntary liquidation, sale or other disposition of all or
substantially all of the assets of any Subsidiary Borrower or any receivership,
insolvency, bankruptcy, reorganization, or other similar proceedings, affecting
any Subsidiary Borrower or any of its assets, or (f) the merger or consolidation
of any Subsidiary Borrower or the Company with any other person, or (g) the
release of discharge of any Subsidiary Borrower or the Company from the
performance or observance of any agreement, covenant, term or condition
contained in this Agreement or any Note, by operation of law, or (h) any other
cause whether similar or dissimilar to the foregoing which would release, affect
or impair the obligations, covenants, agreements or duties of the Company
hereunder.
9.5. No Investigation by Lenders or Administrative Agent. The Company
hereby waives unconditionally any obligation which, in absence of such
provision, the Lenders or the Administrative Agent might otherwise have to
investigate or to assure that there has been compliance with the law of any
jurisdiction with respect to the Guaranteed Obligations recognizing that, to
save both time and expense, the Company has requested that the Lenders and the
Administrative Agent not undertake such investigation. The Company hereby
expressly confirms that the obligations of the Company hereunder shall remain in
full force and effect
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without regard to compliance or noncompliance with any such law and irrespective
of any investigation or knowledge of any Lender or the Administrative Agent of
any such law.
9.6. Indemnity. As a separate, additional and continuing obligation,
the Company unconditionally and irrevocably undertakes and agrees with the
Lenders and the Administrative Agent that, should the Guaranteed Obligations not
be recoverable from the Company under Section 10.1 for any reason whatsoever
(including, without limitation, by reason of any provision of this Agreement or
the Notes or any other agreement or instrument executed in connection herewith
being or becoming void, unenforceable, or otherwise invalid under any applicable
law) then, notwithstanding any knowledge thereof by any Lender or the
Administrative Agent at any time, the Company as sole, original and independent
obligor, upon demand by the Administrative Agent, will make payment to the
Administrative Agent for the account of the Lenders and the Administrative Agent
of the Guaranteed Obligations by way of a full indemnity in such currency and
otherwise in such manner as is provided in this Agreement and the Notes.
9.7. Reinstatement. If at any time any payment of any Guaranteed
Obligations by any Subsidiary Borrower is rescinded or must be otherwise
restored or returned upon the insolvency, bankruptcy or reorganization of any
Subsidiary Borrower or otherwise, each of the Company's obligations hereunder
with respect to such payment shall be reinstated as though such payment had been
due but not made at such time.
ARTICLE X
GENERAL PROVISIONS
10.1. Survival of Representations. All representations and warranties
of the Borrowers contained in this Agreement shall survive the making of the
Credit Extensions herein contemplated.
10.2. Governmental Regulation. Anything contained in this Agreement to
the contrary notwithstanding, neither any LC Issuer nor any Lender shall be
obligated to extend credit to the Borrowers in violation of any limitation or
prohibition provided by any applicable statute or regulation.
10.3. Headings. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any of
the provisions of the Loan Documents.
10.4. Entire Agreement. The Loan Documents embody the entire agreement
and understanding among the Borrowers, the Administrative Agent, the LC Issuers
and the Lenders and supersede all prior agreements and understandings among the
Borrowers, the Administrative Agent, the LC Issuers and the Lenders relating to
the subject matter thereof other than the fee letter described in Section 11.13.
10.5. Several Obligations; Benefits of this Agreement. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other (except to the extent to which the
Administrative Agent is authorized to act as such). The failure of any Lender to
perform any of its obligations hereunder shall not relieve any other
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Lender from any of its obligations hereunder. This Agreement shall not be
construed so as to confer any right or benefit upon any Person other than the
parties to this Agreement and their respective successors and assigns, provided,
however, that the parties hereto expressly agree that the Arranger shall enjoy
the benefits of the provisions of Sections 9.6, 9.10, 10.11, and 10.13 to the
extent specifically set forth therein and shall have the right to enforce such
provisions on its own behalf and in its own name to the same extent as if it
were a party to this Agreement.
10.6. Expenses; Indemnification.
(i) The Borrowers shall reimburse the Administrative Agent and the
Arranger for any costs, internal charges and out-of-pocket expenses (including
reasonable attorneys' and paralegals' fees, time charges and expenses of
attorneys and paralegals for the Administrative Agent and Arranger, which
attorneys and paralegals may or may not be employees of the Administrative Agent
or the Arranger, and expenses of and fees for other advisors and professionals
engaged by the Administrative Agent or the Arranger) paid or incurred by the
Administrative Agent or the Arranger in connection with the investigation,
preparation, negotiation, documentation, execution, delivery, syndication,
distribution (including, without limitation, via the internet), review,
amendment, modification, administration and collection of the Loan Documents.
The Borrowers also agree to reimburse the Administrative Agent, the Arranger,
the LC Issuers and the Lenders for any costs, internal charges and out-of-pocket
expenses (including reasonable attorneys' and paralegals' fees, time charges and
expenses of attorneys and paralegals for the Administrative Agent, the Arranger,
the LC Issuers and the Lenders, which attorneys and paralegals may be employees
of the Administrative Agent, the Arranger, the LC Issuers or the Lenders) paid
or incurred by the Administrative Agent, the Arranger, any LC Issuers or any
Lender in connection with the collection and enforcement of the Loan Documents.
(ii) The Borrowers hereby further agree to indemnify the Administrative
Agent, the Arranger, the LC Issuers, each Lender, their respective affiliates,
and each of their directors, officers and employees against all losses, claims,
damages, penalties, judgments, liabilities and expenses (including, without
limitation, all reasonable expenses of litigation or preparation therefor
whether or not the Administrative Agent, the Arranger, the LC Issuers, any
Lender or any affiliate is a party thereto, and all reasonable attorneys' and
paralegals' fees, time charges and expenses of attorneys and paralegals of the
party seeking indemnification, which attorneys and paralegals may or may not
been employees of such party seeking indemnification) which any of them may pay
or incur arising out of or relating to this Agreement, the other Loan Documents,
the transactions contemplated hereby or the direct or indirect application or
proposed application of the proceeds of any Credit Extension hereunder, except
to the extent that they are determined in a final, non-appealable judgment by a
court of competent jurisdiction to have resulted from the gross negligence or
willful misconduct of the party seeking indemnification. The obligations of the
Borrowers under this Section 10.6 shall survive the termination of this
Agreement.
10.7. Numbers of Documents. All statements, notices, closing documents,
and requests hereunder shall be furnished to the Administrative Agent with
sufficient counterparts so that the Administrative Agent may furnish one to each
of the Lenders, to the extent that the Administrative Agent deems necessary.
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10.8. Accounting. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement Accounting
Principles. If any changes in generally accepted accounting principles are
hereafter required or permitted and are adopted by the Company or any of its
Subsidiaries with the agreement of its independent certified public accountants
and such changes result in a change in the method of calculation of any of the
financial covenants, tests, restrictions or standards herein or in the related
definitions or terms used therein ("Accounting Changes"), the parties hereto
agree, at the Company's request, to enter into negotiations, in good faith, in
order to amend such provisions in a credit neutral manner so as to reflect
equitably such changes with the desired result that the criteria for evaluating
the Company's and its Subsidiaries' financial condition shall be the same after
such changes as if such changes had not been made; provided, however, until such
provisions are amended in a manner reasonably satisfactory to the Administrative
Agent and the Required Lenders, no Accounting Change shall be given effect in
such calculations and all financial statements and reports required to be
delivered hereunder shall be prepared in accordance with Agreement Accounting
Principles without taking into account such Accounting Changes. In the event
such amendment is entered into, all references in this Agreement to Agreement
Accounting Principles shall mean generally accepted accounting principles as of
the date of such amendment.
10.9. Severability of Provisions. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
10.10. Nonliability of Lenders. The relationship between the Borrowers
on the one hand and the Lenders, the LC Issuers and the Administrative Agent on
the other hand shall be solely that of borrower and lender. None of the
Administrative Agent, the Arranger, the LC Issuers or any Lender shall have any
fiduciary responsibilities to the Borrowers. None of the Administrative Agent,
the Arranger, the LC Issuers or any Lender undertakes any responsibility to the
Borrowers to review or inform the Borrowers of any matter in connection with any
phase of any Borrower's business or operations. The Borrowers agree that none of
the Administrative Agent, the Arranger, the LC Issuers or any Lender shall have
liability to the Borrowers (whether sounding in tort, contract or otherwise) for
losses suffered by the Borrowers in connection with, arising out of, or in any
way related to, the transactions contemplated and the relationship established
by the Loan Documents, or any act, omission or event occurring in connection
therewith, unless it is determined in a final, non-appealable judgment by a
court of competent jurisdiction that such losses resulted from the gross
negligence or willful misconduct of the party from which recovery is sought.
None of the Administrative Agent, the Arranger, the LC Issuers or any Lender
shall have any liability with respect to, and the Borrowers hereby waive,
releases and agrees not to sue for, any special, indirect, consequential or
punitive damages suffered by the Borrowers in connection with, arising out of,
or in any way related to the Loan Documents or the transactions contemplated
thereby.
10.11. Confidentiality. Each Lender agrees to hold any confidential
information which it may receive from any Borrower pursuant to this Agreement in
confidence, except for disclosure (i) to its Affiliates and to other Lenders and
their respective Affiliates, (ii) to legal counsel,
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accountants, and other professional advisors to such Lender or to a Transferee
or prospective Transferee (each of whom, by its acceptance thereof, agrees to be
bound by the terms of this Section 10.11), (iii) to regulatory officials, (iv)
to any Person as required by law, regulation, or legal process, (v) to any
Person, if required, in connection with any legal proceeding to which such
Lender is a party, (vi) to such Lender's direct or indirect contractual
counterparties in swap agreements or to legal counsel, accountants and other
professional advisors to such counterparties (each of whom, by its acceptance
thereof, agrees to be bound by the terms of this Section 10.11), and (vii)
permitted by Section 13.4.
10.12. Lenders Not Utilizing Plan Assets. None of the consideration
used by any of the Lenders, any LC Issuer or Designated Lenders to make its
Credit Extensions constitutes for any purpose of ERISA or Section 4975 of the
Code assets of any "plan" as defined in Section 3(3) of ERISA or Section 4975 of
the Code and the rights and interests of each of the Lenders, the LC Issuers and
Designated Lenders in and under the Loan Documents shall not constitute such
"plan assets" under ERISA.
10.13. Nonreliance. Each Lender hereby represents that it is not
relying on or looking to any margin stock (as defined in Regulation U) as
collateral in the extension or maintenance of the credit provided for herein.
10.14. Disclosure. The Borrowers and each Lender hereby acknowledge and
agree that Bank One and/or its respective Affiliates and certain of the other
Lenders and/or their respective Affiliates from time to time may hold
investments in, make other loans to or have other relationships with the
Borrowers and its Affiliates.
10.15. Subordination of Intercompany Indebtedness. The Borrowers agree
that any and all claims of any Borrower against any Guarantor with respect to
any "Intercompany Indebtedness" (as hereinafter defined), any endorser, obligor
or any other guarantor of all or any part of the Obligations, or against any of
its properties shall be subordinate and subject in right of payment to the prior
payment, in full and in cash, of all Obligations. Notwithstanding any right of
any Borrower to ask, demand, sue for, take or receive any payment from any
Guarantor, all rights, liens and security interests of the Borrowers, whether
now or hereafter arising and howsoever existing, in any assets of any Guarantor
(whether constituting part of any collateral given to the Administrative Agent
or any Lender to secure payment of all or any part of the Obligations or
otherwise) shall be and are subordinated to the rights of the Administrative
Agent, the LC Issuers and the Lenders in those assets. No Borrower shall have
any right to possession of any such asset or to foreclose upon any such asset,
whether by judicial action or otherwise, unless and until all of the Obligations
(other than contingent indemnity obligations) shall have been fully paid and
satisfied (in cash) and all financing arrangements pursuant to all of the Loan
Documents have been terminated. If all or any part of the assets of any
Guarantor, or the proceeds thereof, are subject to any distribution, division or
application to the creditors of any Guarantor, whether partial or complete,
voluntary or involuntary, and whether by reason of liquidation, bankruptcy,
arrangement, receivership, assignment for the benefit of creditors or any other
action or proceeding, or if the business of any Guarantor is dissolved or if
substantially all of the assets of any Guarantor are sold, then, and in any such
event (such events being herein referred to as an "Insolvency Event"), any
payment or distribution of any kind or character, either in cash, securities or
other property, which shall be payable or deliverable upon or with
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respect to any indebtedness of any Guarantor to any Borrower ("Intercompany
Indebtedness") shall be paid or delivered directly to the Administrative Agent
for application on any of the Obligations, due or to become due, until such
Obligations (other than contingent indemnity obligations) shall have first been
fully paid and satisfied (in cash). Should any payment, distribution, security
or instrument or proceeds thereof be received by any Borrower upon or with
respect to the Intercompany Indebtedness after any Insolvency Event and prior to
the satisfaction of all of the Obligations (other than contingent indemnity
obligations) and the termination of all financing arrangements pursuant to all
of the Loan Documents, such Borrower shall receive and hold the same in trust,
as trustee, for the benefit of the Administrative Agent, the LC Issuers and the
Lenders and shall forthwith deliver the same to the Administrative Agent, for
the benefit of the Administrative Agent, the LC Issuers and the Lenders, in
precisely the form received (except for the endorsement or assignment of such
Borrower where necessary), for application to any of the Obligations, due or not
due, and, until so delivered, the same shall be held in trust by such Borrower
as the property of the Administrative Agent, the LC Issuers and the Lenders. If
any Borrower fails to make any such endorsement or assignment to the
Administrative Agent, the Administrative Agent or any of its officers or
employees is irrevocably authorized to make the same. Each Borrower agrees that
until the Obligations (other than the contingent indemnity obligations) have
been paid in full (in cash) and satisfied and all financing arrangements
pursuant to any Loan Document among the Borrowers and the Administrative Agent,
the LC Issuers and the Lenders have been terminated, no Borrower will assign or
transfer to any Person (other than the Administrative Agent) any claim any
Borrower has or may have against any Guarantor.
ARTICLE XI
THE ADMINISTRATIVE AGENT
11.1. Appointment; Nature of Relationship. Bank One, NA is hereby
appointed by each of the Lenders as the Administrative Agent hereunder and under
each other Loan Document, and each of the Lenders irrevocably authorizes the
Administrative Agent to act as the contractual representative of such Lender
with the rights and duties expressly set forth herein and in the other Loan
Documents. The Administrative Agent agrees to act as such contractual
representative upon the express conditions contained in this Article XI.
Notwithstanding the use of the defined term "Administrative Agent", it is
expressly understood and agreed that the Administrative Agent shall have no
fiduciary responsibilities to any Lender by reason of this Agreement or any
other Loan Document and that the Administrative Agent is merely acting as the
contractual representative of the Lenders with only those duties as are
expressly set forth in this Agreement and the other Loan Documents. In its
capacity as the Lenders' contractual representative, the Administrative Agent
(i) does not hereby assume any fiduciary duties to any of the Lenders, (ii) is
the "representative" of the Lenders within the meaning of Section 9-102 of the
Uniform Commercial Code and (iii) is acting as independent contractor, the
rights and duties of which are limited to those expressly set forth in this
Agreement and the other Loan Documents. Each of the Lenders hereby agrees to
assert no claim against the Administrative Agent on any agency theory or any
other theory of liability for breach of fiduciary duty, all of which claims each
Lender hereby waives.
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11.2. Powers. The Administrative Agent shall have and may exercise such
powers under the Loan Documents as are specifically delegated to the
Administrative Agent by the terms of each thereof, together with such powers as
are reasonably incidental thereto. The Administrative Agent shall have no
implied duties or fiduciary duties to the Lenders or any obligation to the
Lenders to take any action thereunder, except any action specifically provided
by the Loan Documents to be taken by the Administrative Agent.
11.3. General Immunity. Neither the Administrative Agent nor any of its
respective directors, officers, agents or employees shall be liable to the
Borrowers, the Lenders or any Lender for any action taken or omitted to be taken
by it or them hereunder or under any other Loan Document or in connection
herewith or therewith except to the extent such action or inaction is determined
in a final, non-appealable judgment by a court of competent jurisdiction to have
arisen from the gross negligence or willful misconduct of such Person.
11.4. No Responsibility for Loans, Recitals, etc. Neither the
Administrative Agent nor any of its respective directors, officers, agents or
employees shall be responsible for or have any duty to ascertain, inquire into,
or verify (a) any statement, warranty or representation made in connection with
any Loan Document or any borrowing hereunder; (b) the performance or observance
of any of the covenants or agreements of any obligor under any Loan Document,
including, without limitation, any agreement by an obligor to furnish
information directly to each Lender; (c) the satisfaction of any condition
specified in Article IV, except receipt of items required to be delivered solely
to the Administrative Agent; (d) the existence or possible existence of any
Default or Unmatured Default; (e) the validity, enforceability, effectiveness,
sufficiency or genuineness of any Loan Document or any other instrument or
writing furnished in connection therewith; (f) the value, sufficiency, creation,
perfection or priority of any Lien in any collateral security; or (g) the
financial condition of the Borrowers or any guarantor of any of the Obligations
or of any of the Company's or any such guarantor's respective Subsidiaries. The
Administrative Agent shall have no duty to disclose to the Lenders information
that is not required to be furnished by any Borrower to the Administrative Agent
at such time, but is voluntarily furnished by any Borrower to the Administrative
Agent (either in its capacity as the Administrative Agent or in its individual
capacity).
11.5. Action on Instructions of Lenders. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting,
hereunder and under any other Loan Document in accordance with written
instructions signed by the Required Lenders (or all of the Lenders in the event
that and to the extent that this Agreement expressly requires such), and such
instructions and any action taken or failure to act pursuant thereto shall be
binding on all of the Lenders. The Lenders hereby acknowledge that the
Administrative Agent shall be under no duty to take any discretionary action
permitted to be taken by any of them pursuant to the provisions of this
Agreement or any other Loan Document unless they shall be requested in writing
to do so by the Required Lenders (or all of the Lenders in the event that and to
the extent that this Agreement expressly requires such). The Administrative
Agent shall be fully justified in failing or refusing to take any action
hereunder and under any other Loan Document unless it shall first be indemnified
to its satisfaction by the Lenders pro rata against any and all liability, cost
and expense that it may incur by reason of taking or continuing to take any such
action.
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11.6. Employment of Agents and Counsel. The Administrative Agent may
execute any of its respective duties as the Administrative Agent hereunder and
under any other Loan Document by or through employees, agents, and
attorneys-in-fact and shall not be answerable to the Lenders, except as to money
or securities received by it or its authorized agents, for the default or
misconduct of any such agents or attorneys-in-fact selected by it with
reasonable care. The Administrative Agent shall be entitled to advice of counsel
concerning the contractual arrangement between the Administrative Agent and the
Lenders and all matters pertaining to the Administrative Agent's duties
hereunder and under any other Loan Document.
11.7. Reliance on Documents; Counsel. The Administrative Agent shall be
entitled to rely upon any Note, notice, consent, certificate, affidavit, letter,
telegram, statement, paper or document believed by it to be genuine and correct
and to have been signed or sent by the proper person or persons, and, in respect
to legal matters, upon the opinion of counsel selected by the Administrative
Agent, which counsel may be employees of the Administrative Agent.
11.8. Administrative Agents' Reimbursement and Indemnification. The
Lenders agree to reimburse and indemnify the Administrative Agent ratably in
proportion to the Lenders' Pro Rata Shares of Aggregate Commitment (or, if the
Aggregate Commitment has been terminated, of the Outstanding Credit Exposure)
(i) for any amounts not reimbursed by the Borrowers for which the Administrative
Agent is entitled to reimbursement by the Borrowers under the Loan Documents,
(ii) for any other expenses incurred by the Administrative Agent on behalf of
the Lenders, in connection with the preparation, execution, delivery,
administration and enforcement of the Loan Documents (including, but not limited
to, for any expenses incurred by the Administrative Agent in connection with any
dispute between the Administrative Agent and any Lender or between two or more
of the Lenders) and (iii) for any liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind and nature whatsoever which may be imposed on, incurred by or asserted
against the Administrative Agent in any way relating to or arising out of the
Loan Documents or any other document delivered in connection therewith or the
transactions contemplated thereby (including, without limitation, for any such
amounts incurred by or asserted against the Administrative Agent in connection
with any dispute between the Administrative Agent and any Lender or between two
or more of the Lenders), or the enforcement of any of the terms of the Loan
Documents or of any such other documents, provided that (i) no Lender shall be
liable for any of the foregoing to the extent any of the foregoing is found in a
final, non-appealable judgment in a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of the Administrative
Agent and (ii) any indemnification required pursuant to Section 3.5(vii) shall,
notwithstanding the provisions of this Section 11.8, be paid by the relevant
Lender in accordance with the provisions thereof. The obligations of the Lenders
under this Section 11.8 shall survive payment of the Obligations and termination
of this Agreement.
11.9. Notice of Default. The Administrative Agent shall be deemed to
have no knowledge or notice of the occurrence of any Default or Unmatured
Default hereunder unless the Administrative Agent has received written notice
from a Lender or the Borrowers referring to this Agreement describing such
Default or Unmatured Default and stating that such notice is a "notice of
default". In the event that the Administrative Agent receives such a notice, the
Administrative Agent shall give prompt notice thereof to the Lenders.
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11.10. Rights as a Lender. In the event the Administrative Agent is a
Lender, the Administrative Agent shall have the same rights and powers hereunder
and under any other Loan Document with respect to its Commitment and its Credit
Extensions as any Lender and may exercise the same as though it were not the
Administrative Agent, and the term "Lender" or "Lenders" shall, at any time when
the Administrative Agent is a Lender, unless the context otherwise indicates,
include the Administrative Agent in its individual capacity. The Administrative
Agent and its Affiliates may accept deposits from, lend money to, and generally
engage in any kind of trust, debt, equity or other transaction, in addition to
those contemplated by this Agreement or any other Loan Document, with the
Company or any of its Subsidiaries in which the Company or such Subsidiary is
not restricted hereby from engaging with any other Person.
11.11. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent, the Arranger
or any other Lender and based on the financial statements prepared by the
Company and such other documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement and the
other Loan Documents. Each Lender also acknowledges that it will, independently
and without reliance upon the Administrative Agent, the Arranger or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement and the other Loan Documents.
11.12. Successor Administrative Agents. The Administrative Agent may
resign at any time by giving written notice thereof to the Lenders and the
Company, such resignation to be effective upon the appointment of a successor
Administrative Agent or, if no successor Administrative Agent has been
appointed, forty-five (45) days after the retiring Administrative Agent gives
notice of its intention to resign. The Administrative Agent may be removed at
any time with or without cause by written notice received by the Administrative
Agent from the Required Lenders, such removal to be effective on the date
specified by the Required Lenders. Upon any such resignation or removal, the
Required Lenders shall have the right to appoint, on behalf of the Borrowers and
the Lenders, a successor Administrative Agent. If no successor Administrative
Agent shall have been so appointed by the Required Lenders within thirty (30)
days after the resigning Administrative Agent's giving notice of its intention
to resign, then the resigning Administrative Agent may appoint, on behalf of the
Borrowers and the Lenders, a successor Administrative Agent. Notwithstanding the
previous sentence, the Administrative Agent may at any time without the consent
of any Borrower or any Lender, appoint any of its Affiliates which is a
commercial bank as its successor Administrative Agent hereunder. If the
Administrative Agent has resigned or been removed and no successor
Administrative Agent has been appointed, the Lenders may perform all the duties
of the Administrative Agent hereunder and the Borrowers shall make all payments
in respect of the Obligations to the applicable Lender and for all other
purposes shall deal directly with the Lenders. No successor Administrative Agent
shall be deemed to be appointed hereunder until such successor Administrative
Agent has accepted the appointment. Any such successor Administrative Agent
shall be a commercial bank having capital and retained earnings of at least
$100,000,000. Upon the acceptance of any appointment as an Administrative Agent
hereunder by a successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the resigning or removed Administrative Agent. Upon the
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effectiveness of the resignation or removal of an Administrative Agent, the
resigning or removed Administrative Agent shall be discharged from its duties
and obligations hereunder and under the Loan Documents. After the effectiveness
of the resignation or removal of an Administrative Agent, the provisions of this
Article XI shall continue in effect for the benefit of the Administrative Agent
in respect of any actions taken or omitted to be taken by it while it was acting
as an Administrative Agent hereunder and under the other Loan Documents. In the
event that there is a successor to the Administrative Agent by merger, or the
Administrative Agent assigns its duties and obligations to an Affiliate pursuant
to this Section 11.12, then (a) the term "Prime Rate" as used in this Agreement
shall mean the prime rate, base rate or other analogous rate of the new
Administrative Agent and (b) the references to "Bank One" in the definitions of
"Eurocurrency Reference Rate" and "Prime Rate" and in the last sentence of
Section 2.13 shall be deemed to be a reference to such successor Administrative
Agent in its individual capacity.
11.13. Agent and Arranger Fees. The Company agrees to pay to the
Administrative Agent and the Arranger, for their respective accounts, the fees
agreed to by the Company, the Administrative Agent and the Arranger pursuant to
that certain letter agreement dated July 13, 2001 or as otherwise agreed from
time to time.
11.14. Delegation to Affiliates. The Borrowers and the Lenders agree
that the Administrative Agent may delegate any of its duties under this
Agreement to any of its Affiliates. Any such Affiliate (and such Affiliate's
directors, officers, agents and employees) which performs duties in connection
with this Agreement shall be entitled to the same benefits of the
indemnification, waiver and other protective provisions to which the
Administrative Agent is entitled under Articles IX and X.
11.15. Release of Guarantors. Upon the liquidation or dissolution of
any Guarantor, or sale of the Capital Stock of any Guarantor, in each case which
is permitted pursuant to the terms of any Loan Document or consented to in
writing by the Required Lenders or all of the Lenders, as applicable, and upon
at least five (5) Business Days' prior written request by the Company, the
Administrative Agent shall (and is hereby irrevocably authorized by the Lenders
to) execute such documents as may be necessary to evidence the release of the
applicable Guarantor from its obligations under the Guaranty; provided, however,
that (i) the Administrative Agent shall not be required to execute any such
document on terms which, in the Administrative Agent's opinion, would expose the
Administrative Agent to liability or create any obligation or entail any
consequence other than the release of such Guarantor without recourse or
warranty, and (ii) such release shall not in any manner discharge, affect or
impair the Obligations, any other Guarantor's obligations under the Guaranty,
or, if applicable, any obligations of the Company or any Subsidiary in respect
of the proceeds of any such sale retained by the Company or any Subsidiary.
ARTICLE XII
SETOFF; RATABLE PAYMENTS
12.1. Setoff. In addition to, and without limitation of, any rights of
the Lenders under applicable law, if any Default occurs, any and all deposits
(including all account balances, whether provisional or final and whether or not
collected or available) and any other
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Indebtedness at any time held or owing by any Lender or any Affiliate of any
Lender to or for the credit or account of any Borrower may be offset and applied
toward the payment of the Obligations owing to such Lender, whether or not the
Obligations, or any part thereof, shall then be due.
12.2. Ratable Payments. If any Lender, whether by setoff or otherwise,
has payment made to it upon its Outstanding Credit Exposure (other than payments
received pursuant to Section 3.1, 3.2, 3.4 or 3.5) in a greater proportion than
that received by any other Lender, such Lender agrees, promptly upon demand, to
purchase a participation in the Aggregate Outstanding Credit Exposure held by
the other Lenders so that after such purchase each Lender will hold its Pro Rata
Share of the Aggregate Outstanding Credit Exposure. If any Lender, whether in
connection with setoff or amounts which might be subject to setoff or otherwise,
receives collateral or other protection for its Obligations or such amounts
which may be subject to setoff, such Lender agrees, promptly upon demand, to
take such action necessary such that all Lenders share in the benefits of such
collateral ratably in proportion to their respective Pro Rata Shares of the
Aggregate Outstanding Credit Exposure. In case any such payment is disturbed by
legal process, or otherwise, appropriate further adjustments shall be made.
ARTICLE XIII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
13.1. Successors and Assigns; Designated Lenders.
13.1.1. Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrowers, the
Administrative Agent and the Lenders and their respective successors and
assigns, except that (i) no Borrower shall have the right to assign its rights
or obligations under the Loan Documents without the consent of all of the
Lenders, and any such assignment in violation of this Section 13.1.1 shall be
null and void, and (ii) any assignment by any Lender must be made in compliance
with Section 13.3. The parties to this Agreement acknowledge that clause (ii) of
this Section 13.1.1 relates only to absolute assignments and does not prohibit
assignments creating security interests, including, without limitation, (x) any
pledge or assignment by any Lender of all or any portion of its rights under
this Agreement and any Note to a Federal Reserve Bank or (y) in the case of a
Lender which is a fund, any pledge or assignment of all or any portion of its
rights under this Agreement and any Note to its trustee in support of its
obligations to its trustee; provided, however, that no such pledge or assignment
creating a security interest shall release the transferor Lender from its
obligations hereunder unless and until the parties thereto have complied with
the provisions of Section 13.3. The Administrative Agent may treat the Person
which made any Loan or which holds any Note as the owner thereof for all
purposes hereof unless and until such Person complies with Section 13.3;
provided, however, that the Administrative Agent may in its discretion (but
shall not be required to) follow instructions from the Person which made any
Loan or which holds any Note to direct payments relating to such Loan or Note to
another Person. Any assignee of the rights to any Loan or any Note agrees by
acceptance of such assignment to be bound by all the terms and provisions of the
Loan Documents. Any request, authority or consent of any Person, who at the time
of making such request or giving such authority or consent is the owner of the
rights to any Loan (whether or not a Note has been
76
issued in evidence thereof), shall be conclusive and binding on any subsequent
holder or assignee of the rights to such Loan.
13.1.2. Designated Lenders.
(i) Subject to the terms and conditions set forth in this Section
13.1.2, any Lender may from time to time elect to designate an Eligible Designee
to provide all or any part of the Revolving Loans to be made by such Lender
pursuant to this Agreement; provided that the designation of an Eligible
Designee by any Lender for purposes of this Section 13.1.2 shall be subject to
the approval of the Administrative Agent (which consent shall not be
unreasonably withheld or delayed). Upon the execution by the parties to each
such designation of an agreement in the form of Exhibit G hereto (a "Designation
Agreement") and the acceptance thereof by the Administrative Agent, the Eligible
Designee shall become a Designated Lender for purposes of this Agreement. The
Designating Lender shall thereafter have the right to permit the Designated
Lender to provide all or a portion of the Revolving Loans to be made by the
Designating Lender pursuant to the terms of this Agreement and the making of the
Revolving Loans or portion thereof shall satisfy the obligations of the
Designating Lender to the same extent, and as if, such Revolving Loan was made
by the Designating Lender. As to any Revolving Loan made by it, each Designated
Lender shall have all the rights a Lender making such Revolving Loan would have
under this Agreement and otherwise; provided, (x) that all voting rights under
this Agreement shall be exercised solely by the Designating Lender, (y) each
Designating Lender shall remain solely responsible to the other parties hereto
for its obligations under this Agreement, including the obligations of a Lender
in respect of Revolving Loans made by its Designated Lender and (z) no
Designated Lender shall be entitled to reimbursement under Article III hereof
for any amount which would exceed the amount that would have been payable by any
Borrower to the Lender from which the Designated Lender obtained any interests
hereunder. No additional Notes shall be required with respect to Revolving Loans
provided by a Designated Lender; provided, however, to the extent any Designated
Lender shall advance funds, the Designating Lender shall be deemed to hold the
Notes in its possession as an agent for such Designated Lender to the extent of
the Revolving Loan funded by such Designated Lender. Such Designating Lender
shall act as Administrative Agent for its Designated Lender and give and receive
notices and communications hereunder. Any payments for the account of any
Designated Lender shall be paid to its Designating Lender as Administrative
Agent for such Designated Lender and neither the Borrowers nor the
Administrative Agent shall be responsible for any Designating Lender's
application of such payments. In addition, any Designated Lender may (1) with
notice to, but without the consent of the Borrowers or the Administrative Agent,
assign all or portions of its interests in any Revolving Loans to its
Designating Lender or to any financial institution consented to by the
Administrative Agent providing liquidity and/or credit facilities to or for the
account of such Designated Lender and (2) subject to advising any such Person
that such information is to be treated as confidential in accordance with such
Person's customary practices for dealing with confidential, non-public
information, disclose on a confidential basis any non-public information
relating to its Revolving Loans to any rating agency, commercial paper dealer or
provider of any guarantee, surety or credit or liquidity enhancement to such
Designated Lender.
(ii) Each party to this Agreement hereby agrees that it shall not
institute against, or join any other Person in instituting against, any
Designated Lender any bankruptcy,
77
reorganization, arrangement, insolvency or liquidation proceeding or other
proceedings under any federal or state bankruptcy or similar law for one year
and a day after the payment in full of all outstanding senior indebtedness of
any Designated Lender; provided that the Designating Lender for each Designated
Lender hereby agrees to indemnify, save and hold harmless each other party
hereto for any loss, cost, damage and expense arising out of its inability to
institute any such proceeding against such Designated Lender. This Section
13.1.2 shall survive the termination of this Agreement.
13.2. Participations.
13.2.1. Permitted Participants; Effect. Any Lender may, in the ordinary
course of its business and in accordance with applicable law, at any time sell
to one or more banks or other entities ("Participants") participating interests
in any Outstanding Credit Exposure of such Lender, any Note held by such Lender,
any Commitment of such Lender or any other interest of such Lender under the
Loan Documents. In the event of any such sale by a Lender of participating
interests to a Participant, such Lender's obligations under the Loan Documents
shall remain unchanged, such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, such Lender shall remain
the owner of its Outstanding Credit Exposure and the holder of any Note issued
to it in evidence thereof for all purposes under the Loan Documents, all amounts
payable by the Borrowers under this Agreement shall be determined as if such
Lender had not sold such participating interests, and the Borrowers and the
Administrative Agent shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under the Loan
Documents.
13.2.2. Voting Rights. Each Lender shall retain the sole right to
approve, without the consent of any Participant, any amendment, modification or
waiver of any provision of the Loan Documents other than any amendment,
modification or waiver with respect to any Credit Extension or Commitment in
which such Participant has an interest which (i) extends the final maturity of
any Loan or any Facility LC beyond the Facility Termination Date or forgives all
or a portion of the principal amount thereof or interest or fees thereon, or
reduces the rate or extends the time of payment of interest or fees on any such
Loan or the related Commitment or (ii) extends the Facility Termination Date, or
(iii) releases any guarantor of the Obligations or all or substantially all of
the collateral, if any, securing the Obligations.
13.2.3. Benefit of Setoff. The Borrowers agree that each Participant
shall be deemed to have the right of setoff provided in Section 12.1 in respect
of its participating interest in amounts owing under the Loan Documents to the
same extent as if the amount of its participating interest were owing directly
to it as a Lender under the Loan Documents, provided that each Lender shall
retain the right of setoff provided in Section 12.1 with respect to the amount
of participating interests sold to each Participant. The Lenders agree to share
with each Participant, and each Participant, by exercising the right of setoff
provided in Section 12.1, agrees to share with each Lender, any amount received
pursuant to the exercise of its right of setoff, such amounts to be shared in
accordance with Section 12.2 as if each Participant were a Lender.
13.3. Assignments.
78
13.3.1. Permitted Assignments. Any Lender may, in the ordinary course
of its business and in accordance with applicable law, at any time assign to one
or more banks or other entities ("Purchasers") all or any part of its rights and
obligations under the Loan Documents. Such assignment shall be evidenced by an
agreement substantially in the form of Exhibit C or in such other form as may be
agreed to by the parties thereto (each such agreement, an "Assignment
Agreement"). The consent of the Company, the LC Issuers and the Administrative
Agent shall be required prior to an Assignment Agreement becoming effective with
respect to a Purchaser which is not a Lender or an Affiliate thereof, provided,
however, that if a Default has occurred and is continuing, the consent of the
Company shall not be required. Such consent shall not be unreasonably withheld
or delayed. Each such assignment with respect to a Purchaser which is not a
Lender or an Affiliate thereof shall (unless each of the Company and the
Administrative Agent otherwise consents) be in an amount not less than the
lesser of (i) $5,000,000 and integral multiples of $1,000,000 in excess thereof
or (ii) the remaining amount of the assigning Lender's Commitment (calculated as
at the date of such assignment), or, if the Facility Termination Date has
occurred, the remaining amount of the assigning Lender's Outstanding Credit
Exposure.
13.3.2. Effect; Effective Date. Upon (i) delivery to the Administrative
Agent of an Assignment Agreement, together with any consents required by Section
13.3.1, and (ii) payment of a $3,500 fee to the Administrative Agent for
processing such assignment (unless such fee is waived by the Administrative
Agent), such assignment shall become effective on the effective date specified
in such assignment. The Assignment Agreement shall contain a representation by
the Purchaser to the effect that none of the consideration used to make the
purchase of the Commitment and Outstanding Credit Exposure under the applicable
Assignment Agreement constitutes "plan assets" as defined under ERISA and that
the rights and interests of the Purchaser in and under the Loan Documents will
not be "plan assets" under ERISA. On and after the effective date of such
assignment, such Purchaser shall for all purposes be a Lender party to this
Agreement and any other Loan Document executed by or on behalf of the Lenders
and shall have all the rights and obligations of a Lender under the Loan
Documents, to the same extent as if it were an original party hereto, and no
further consent or action by any Borrower, the Lenders or the Administrative
Agent shall be required to release the transferor Lender with respect to the
percentage of the Aggregate Commitment and Outstanding Credit Exposure assigned
to such Purchaser. Upon the consummation of any assignment to a Purchaser
pursuant to this Section 13.3.2, the transferor Lender, the Administrative Agent
and the Borrowers shall, if the transferor Lender or the Purchaser desires that
its Loans be evidenced by Notes, make appropriate arrangements so that new Notes
or, as appropriate, replacement Notes are issued to such transferor Lender and
new Notes or, as appropriate, replacement Notes, are issued to such Purchaser,
in each case in principal amounts reflecting their respective Commitments (or,
if the Facility Termination Date has occurred, their respective Outstanding
Credit Exposure, as adjusted pursuant to such assignment.
13.3.3. The Register. Notwithstanding anything to the contrary in this
Agreement, the Borrowers hereby designate the Administrative Agent, and the
Administrative Agent, hereby accepts such designation, to serve as the
Borrowers' contractual representative solely for purposes of this Section
13.3.3. In this connection, the Administrative Agent shall maintain at its
address referred to in Section 14.1 a copy of each Assignment Agreement
delivered to and accepted by it pursuant to this Section 13.3.3 and a register
(the "Register") for the recordation of the names and addresses of the Lenders
and the Commitment of, principal amount of and interest
79
on the Revolving Loans owing to, each Lender from time to time and whether such
Lender is an original Lender or the assignee of another Lender pursuant to an
assignment under this Section 13.3. The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the Company
and each of its Subsidiaries, the Administrative Agent and the Lenders may treat
each Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrowers or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
13.4. Dissemination of Information. The Borrowers authorize each Lender
to disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "Transferee") and any
prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of the Company and its Subsidiaries, including
without limitation any information contained in any reports or other information
delivered by any Borrower pursuant to Section 6.1; provided that each Transferee
and prospective Transferee agrees to be bound by Section 10.11 of this
Agreement.
13.5. Tax Treatment. If any interest in any Loan Document is
transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the transferor
Lender shall cause such Transferee, concurrently with the effectiveness of such
transfer, to comply with the provisions of Section 3.5(iv).
ARTICLE XIV
NOTICES
14.1. Notices. Except as otherwise permitted by Section 2.14 with
respect to borrowing notices, all notices, requests and other communications to
any party hereunder shall be in writing (including electronic transmission,
facsimile transmission or similar writing) and shall be given to such party: (x)
in the case of the initial Borrower, the Administrative Agent or any Lender
party hereto as of the Closing Date, at its respective address or facsimile
number set forth on the signature pages hereof, (y) in the case of any Lender
that becomes a party hereto pursuant to Section 13.3, at its address or
facsimile number set forth in the applicable Assignment Agreement or, if none is
provided therein, in its administrative questionnaire or (z) in the case of any
party, at such other address or facsimile number as such party may hereafter
specify for the purpose by notice to the Administrative Agent and the Company in
accordance with the provisions of this Section 14.1. Each such notice, request
or other communication shall be effective (i) if given by facsimile
transmission, when transmitted to the facsimile number specified in this Section
and confirmation of receipt is received, (ii) if given by mail, 72 hours after
such communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid, or (iii) if given by any other means, when delivered
(or, in the case of electronic transmission, received) at the address specified
in this Section; provided that notices to the Administrative Agent under Article
II shall not be effective until received. For all purposes under this Agreement
and the other Loan Documents, (A) notice to the Administrative Agent from any
Borrower shall not be deemed to be effective until actually received by the
Administrative Agent, and (B) delivery of any notice to the Company shall be
deemed to have been delivered to the Borrowers.
80
14.2. Change of Address. The Borrowers, the Administrative Agent and
any Lender may each change the address for service of notice upon it by a notice
in writing to the other parties hereto.
ARTICLE XV
COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by the initial Borrowers,
the Administrative Agent, the LC Issuers and the Lenders and each party has
notified the Administrative Agent by facsimile transmission or telephone that it
has taken such action.
ARTICLE XVI
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
16.1. CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS (INCLUDING, WITHOUT LIMITATION, 735 ILCS 105/5-1 ET SEQ., BUT
OTHERWISE WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS) OF THE STATE OF
ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
16.2. CONSENT TO JURISDICTION. EACH BORROWER HEREBY IRREVOCABLY SUBMITS
TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS STATE
COURT SITTING IN CHICAGO, ILLINOIS IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO ANY LOAN DOCUMENTS AND EACH BORROWER HEREBY IRREVOCABLY AGREES THAT
ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED
IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER
HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A
COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT
THE RIGHT OF THE ADMINISTRATIVE AGENT, ANY LC ISSUER OR ANY LENDER TO BRING
PROCEEDINGS AGAINST ANY BORROWER IN THE COURTS OF ANY OTHER JURISDICTION. ANY
JUDICIAL PROCEEDING BY ANY BORROWER AGAINST THE ADMINISTRATIVE AGENT, ANY LC
ISSUER OR ANY LENDER OR ANY AFFILIATE OF THE ADMINISTRATIVE AGENT, ANY LC ISSUER
OR ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING
OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN
A COURT IN CHICAGO, ILLINOIS OR THE CITY IN WHICH THE PRINCIPAL OFFICE OF THE
ADMINISTRATIVE AGENT, LENDER OR AFFILIATE, AS THE CASE MAY BE, IS LOCATED.
81
16.3. WAIVER OF JURY TRIAL. THE BORROWERS, THE ADMINISTRATIVE AGENT,
EACH LC ISSUER AND EACH LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN
TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED
WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
ARTICLE XVII
TERMINATION OF EXISTING CREDIT AGREEMENT
The Company, the Lender and the Administrative Agent agree that upon
(i) the execution and delivery of this Agreement by each of the parties hereto
and (ii) satisfaction (or waiver by the aforementioned parties) of the
conditions precedent set forth in Section 4.1, the "Commitments" (as defined in
the Existing Credit Agreement) shall be reduced to zero and terminated
permanently as of the date immediately preceding the Closing Date of this
Agreement. All facility fees and related fees payable pursuant to the Existing
Credit Agreement shall be due and payable on the effective date of the
termination of such agreement, which date shall be concurrent with the Closing
Date of this Agreement.
[Signature Pages Follow]
82
IN WITNESS WHEREOF, the initial Borrowers, the Lenders, the LC Issuers
and the Administrative Agent have executed this Agreement as of the date first
above written.
JOHNSON OUTDOORS INC., as a Borrower
By: /s/ Wade T. Neuharth
-------------------------------------
Name: Wade T. Neuharth
Title: Treasurer
1326 Willow Road
Sturtevant, WI 53177
Attention: Paul A. Lehmann
Phone: 414/884-1531
Fax: 414/884-1704
E-mail: plehmann@johnsonoutdoors.com
BANK ONE, NA (Main Office
Chicago), as the
Administrative Agent, as
Swing Line Lender, as LC
Issuer and as a Lender
By: /s/ Jenny Gilpin
--------------------------------------
Name: Jenny Gilpin
Title: Director, Capital Markets
1 Bank One Plaza
Chicago, IL 60670
Attention: Jenny Gilpin
Phone: 312/732-5867
Fax: 312/732-1117
E-mail: jenny_gilpin@bankone.com
LASALLE BANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ Lou D. Banach
--------------------------------------
Name: Lou D. Banach
Title: Vice President
411 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Attention: Lou D. Banach
Phone: 414-224-0394
Fax: 414-224-0071
E-mail: lou.banach@abnamro.com
THE NORTHERN TRUST COMPANY, as a Lender
By: /s/ Edmund H. Lester
--------------------------------------
Name: Edmund H. Lester
Title: Vice President
50 South LaSalle Street
Chicago, IL 60148
Attention: Edmund H. Lester
Phone: 312/444-3527
Fax: 312/444-7028
E-mail: EL18@ntrs.com
M&I MARSHALL & ILSLEY BANK, as a Lender
By: /s/ Ronald J. Carey
--------------------------------------
Name: Ronald J. Carey
Title: Vice President
770 North Water Street
Milwaukee, Wisconsin 53202
Attention: Ronald J. Carey
Phone: 414-765-7600
Fax: 414-765-7625
E-mail: ron.carey@micorp.com
ASSOCIATED BANK, N.A., as a Lender
By: /s/ Gretchen Quinlevan
--------------------------------------
Name: Gretchen Quinlevan
Title: Assistant Vice President
401 E. Kilborn Avenue
Milwaukee, Wisconsin 53202
Attention: Gretchen Quinlevan
Phone: 414/283-2202
Fax: 414/283-2336
E-mail: gretchen.quinlevan@associated
bank.com
AMENDMENT NO. 1
to
3-YEAR REVOLVING CREDIT AGREEMENT
THIS AMENDMENT NO. 1 TO 3-YEAR REVOLVING CREDIT AGREEMENT (the
"Amendment") is made as of December 18, 2001 by and among JOHNSON OUTDOORS INC.
(the "Company"), the financial institutions listed on the signature pages hereof
(the "Lenders") and BANK ONE, NA (having its principal office in Chicago,
Illinois), in its individual capacity as a Lender and in its capacity as
contractual representative (the "Administrative Agent"), under that certain
3-Year Revolving Credit Agreement dated as of August 31, 2001 by and among the
Company, the Subsidiary Borrowers from time to time party thereto (together with
the Company, the "Borrowers"), the financial institutions party thereto, and the
Administrative Agent (the "Credit Agreement"). Defined terms used herein and not
otherwise defined herein shall have the meaning given to them in the Credit
Agreement.
WITNESSETH
WHEREAS, the Company, the Lenders and the Agents are parties to the
Credit Agreement; and
WHEREAS, the Company has requested that the Agents and the requisite
number of Lenders under Section 8.2 of the Credit Agreement amend the Credit
Agreement on the terms and conditions set forth herein; and
WHEREAS, the Company, the requisite number of Lenders under Section 8.2
of the Credit Agreement, and the Agents have agreed to amend the Credit
Agreement on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises set forth above, the
terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto have agreed to the following amendments to the Credit Agreement:
1. Amendments to the Credit Agreement. Effective as of December 18,
2001, and subject to the satisfaction of the conditions precedent set forth in
Section 2 below, the Credit Agreement is hereby amended as follows:
1.1. Section 1.1 of the Credit Agreement is amended to insert the
following new definition alphabetically therein:
"Consolidated Tangible Assets" means the Consolidated
Total Assets of the Company, excluding all items that are
treated as intangibles under Agreement Accounting Principles.
1.2. Section 2.1 of the Credit Agreement is amended to insert the
following at the end of the first sentence therein: "and (iv)
at no time shall the aggregate Outstanding Credit Exposure of
all of the Lenders to all Borrowers that are Foreign
Subsidiaries exceed an amount equal to ten and one half
percent (10.5%) of the Company's Consolidated Tangible Assets
as of the end of the most recently ended fiscal year".
1.3. Section 2.2.4 of the Credit Agreement is amended to delete the
phrase "the Borrowers" now appearing in the first sentence
thereof, and to substitute the following therefor: "the
applicable Borrower".
1.4. Section 2.3.2 of the Credit Agreement is amended to insert the
following at the end thereof:
"Notwithstanding anything to the contrary herein or in any
other Loan Document, in no event shall any of the Subsidiary
Borrowers that are Foreign Subsidiaries be deemed to have any
liability for the Obligations hereunder of the other
Borrowers."
1.5. Section 2.21.6(i) of the Credit Agreement is amended (i) to
delete the phrase "The Borrowers" now appearing at the
beginning thereof, and to substitute the phrase "Each
Borrower" therefor, and (ii) to insert immediately after the
phrase "under any Facility LC issued by such LC Issuer" now
appearing therein, the following: "for the account of such
Borrower".
1.6. Section 2.22 of the Credit Agreement is amended to insert the
following after the first sentence thereof:
"No Domestic Subsidiary may be a Subsidiary Borrower."
1.7. Article XI of the Credit Agreement is amended to insert the
following new Section 11.16 at the end thereof:
"11.16. Intercreditor Agreement. The Lenders hereby
irrevocably authorize the Administrative Agent, on behalf of
itself and the Lenders, to execute that certain Intercreditor
Agreement, dated as of December 13, 2001, by and among the
Agent, certain other creditors of the Company and its
Subsidiaries from time to time parties thereto and the
Subsidiaries of the Company from time to time parties thereto,
in substantially the form of Exhibit J hereto."
1.8. The Credit Agreement is amended to insert a new Exhibit J to
the Credit Agreement in the form of Attachment B to this
Amendment.
2. Conditions of Effectiveness. The effectiveness of this Amendment is
subject to the conditions precedent that the Administrative Agent shall have
received the following:
- 2 -
(a) duly executed originals of this Amendment from the Company,
the requisite number of Lenders under Section 8.2 of the
Credit Agreement, and the Agents;
(b) duly executed originals of a Reaffirmation in the form of
Attachment A attached hereto from each of the Subsidiaries
identified thereon;
(c) such other documents, instruments and agreements as the
Administrative Agent may reasonably request.
3. Representations and Warranties.
(a) The Company hereby represents and warrants that this
Amendment, the attached Reaffirmation and the Credit
Agreement, as previously executed and as amended hereby,
constitute legal, valid and binding obligations of the
Borrowers and the Subsidiaries parties thereto and are
enforceable against the Borrowers and the Subsidiaries parties
thereto in accordance with their terms (except as
enforceability may be limited by bankruptcy, insolvency, or
similar laws affecting the enforcement of creditors' rights
generally).
(b) Upon the effectiveness of this Amendment and after giving
effect hereto, the Company hereby (i) reaffirms all covenants,
representations and warranties made in the Credit Agreement as
amended hereby, and agrees that all such covenants,
representations and warranties shall be true and correct as of
the effective date of this Amendment (unless such
representation and warranty is made as of a specific date, in
which case such representation and warranty shall be true and
correct as of such date) and (ii) certifies to the Lenders and
the Agents that no Default or Unmatured Default has occurred
and is continuing.
4. References to the Credit Agreement.
(a) Upon the effectiveness of Section 1 hereof, on and after the
date hereof, each reference in the Credit Agreement (including
any reference therein to "this Credit Agreement," "hereunder,"
"hereof," "herein" or words of like import referring thereto)
or in any other Loan Document shall mean and be a reference to
the Credit Agreement as amended hereby.
(b) Except as specifically amended above, the Credit Agreement and
all other documents, instruments and agreements executed
and/or delivered in connection therewith, shall remain in full
force and effect, and are hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a
waiver of any right, power or remedy of the Administrative
Agent or the Lenders, nor constitute a waiver of any provision
of the Credit Agreement or any other documents, instruments
and agreements executed and/or delivered in connection
therewith.
5. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING 735 ILCS 105/5-1 ET SEQ., BUT
OTHERWISE WITHOUT REGARD TO THE CONFLICT OF LAW PROVISIONS) OF THE STATE OF
ILLINOIS.
- 3 -
6. Headings. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
7. Counterparts. This Amendment may be executed by one or more of the
parties to this Amendment on any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
- 4 -
IN WITNESS WHEREOF, this Amendment has been duly executed as of the day
and year first above written.
JOHNSON OUTDOORS INC., as a Borrower
By: /s/ Wade T. Neuharth
-------------------------------------
Name: Wade T. Neuharth
Title: Treasuer
BANK ONE, NA (having its principal office
in Chicago, Illinois), as Administrative
Agent, as Swing Line Lender, as LC Issuer
and as a Lender
By: /s/ Ronald Edwards
-------------------------------------
Name: Ronald Edwards
Title: Director
LASALLE BANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ Lou D. Banach
-------------------------------------
Name: Lou D. Banach
Title: First Vice President & Senior
Lender
THE NORTHERN TRUST COMPANY, as a Lender
By: /s/ Edmund H. Lester
-------------------------------------
Name: Edmund H. Lester
Title: Vice President
M&I MARSHALL & ILSLEY BANK, as a Lender
By: /s/ Ronald J. Carey
-------------------------------------
Name: Ronald J. Carey
Title: Vice President
ASSOCIATED BANK, N.A., as a Lender
By: /s/ Gretchen Quinlevan
-------------------------------------
Name: Gretchen Quinlevan
Title: Assistant Vice President
ATTACHMENT A
REAFFIRMATION
Each of the undersigned Guarantors hereby acknowledges receipt of a copy of the
foregoing Amendment No. 1 to the 3-Year Revolving Credit Agreement dated as of
August 31, 2001 by and among JOHNSON OUTDOORS INC. (the "Company"), the
Subsidiary Borrowers parties thereto, the financial institutions listed on the
signature pages thereof (the "Lenders"), and BANK ONE, NA (having its principal
office in Chicago, Illinois), in its individual capacity as a Lender and in its
capacity as contractual representative (the "Administrative Agent") (as amended
and as the same may be amended, restated, supplemented or otherwise modified
from time to time, the "Credit Agreement"), which Amendment No. 1 to the 3-Year
Revolving Credit Agreement is dated as of December 18, 2001 (the "Amendment").
Capitalized terms used in this Reaffirmation and not defined herein shall have
the meanings given to them in the Credit Agreement. Without in any way
establishing a course of dealing by the Administrative Agent or any Lender, each
of the undersigned Guarantors reaffirms the terms and conditions of the Guaranty
and any other Loan Document executed by it and acknowledges and agrees that such
agreement and each and every such Loan Document executed by the undersigned
Guarantors in connection with the Credit Agreement remains in full force and
effect and is hereby reaffirmed, ratified and confirmed. All references to the
Credit Agreement contained in the above-referenced documents shall be a
reference to the Credit Agreement as so modified by the Amendment and as the
same may from time to time hereafter be amended, modified or restated.
Dated: December 18, 2001
LEISURE LIFE LIMITED, as a Guarantor OLD TOWN CANOE COMPANY, as a Guarantor
By: /s/ Wade T. Neuharth By: /s/ Wade T. Neuharth
-------------------------------- --------------------------------
Name: Wade T. Neuharth Name: Wade T. Neuharth
Its: Secretary Its: Secretary
EXTRASPORT, INC., as a Guarantor UNDER SEA INDUSTRIES, INC., as a
Guarantor
By: /s/ Wade T. Neuharth
-------------------------------- By: /s/ David R. Harrington
Name: Wade T. Neuharth --------------------------------
Its: Secretary Name: David R. Harrington
Its: Treasurer
================================================================================
JOHNSON OUTDOORS INC.
NOTE AGREEMENT
Dated as of December 13, 2001
Re: $50,000,000 7.82% Senior Notes
Due December 13, 2008
================================================================================
TABLE OF CONTENTS
SECTION HEADING PAGE
SECTION 1. DESCRIPTION OF NOTES AND COMMITMENT.....................1
Section 1.1. Description of Notes....................................1
Section 1.2. Subsidiary Guaranty.....................................1
Section 1.3. Commitment, Closing Date................................2
SECTION 2. PREPAYMENT OF NOTES.....................................2
Section 2.1. Required Prepayments....................................2
Section 2.2. Optional Prepayments of Notes...........................3
Section 2.3. Prepayment of Notes upon Change of Control..............3
Section 2.4. Notice of Optional Prepayments..........................4
Section 2.5. Allocation of Prepayments...............................5
Section 2.6. Direct Payment..........................................5
SECTION 3. REPRESENTATIONS.........................................5
Section 3.1. Representations of the Company..........................5
Section 3.2. Purchase for Investment.................................5
Section 3.3. Source of Funds.........................................5
SECTION 4. CLOSING CONDITIONS......................................7
Section 4.1. Closing Certificate.....................................7
Section 4.2. Legal Opinions..........................................7
Section 4.3. Company's Existence and Authority.......................7
Section 4.4. Consent of Holders of Other Securities..................7
Section 4.5. Legality of Investment..................................8
Section 4.6. Satisfactory Proceedings................................8
Section 4.7. Waiver of Conditions....................................8
Section 4.8. Private Placement Numbers...............................8
Section 4.9. Subsidiary Guaranty.....................................8
Section 4.10. Intercreditor Agreement.................................8
Section 4.11. Payment of Closing Costs................................8
SECTION 5. COMPANY COVENANTS.......................................9
Section 5.1. Corporate Existence, Etc................................9
Section 5.2. Insurance...............................................9
Section 5.3. Taxes, Claims for Labor and Materials,
Compliance with Laws..................................9
Section 5.4. Maintenance, Etc.......................................10
Section 5.5. Nature of Business.....................................10
Section 5.6. Limitations on Indebtedness............................10
Section 5.7. Limitation on Liens....................................11
Section 5.8. Mergers, Consolidations, Sales of Assets, Etc..........13
Section 5.9. Consolidated Net Worth.................................17
Section 5.10. Fixed Charge Coverage Ratio............................17
Section 5.11. Distributions..........................................17
Section 5.12. Investment.............................................18
Section 5.13. Repurchase of Notes....................................20
Section 5.14. Transactions with Affiliates...........................20
Section 5.15. ERISA Compliance.......................................20
Section 5.16. Reports and Rights of Inspection.......................21
Section 5.17. Subsidiary Guaranty....................................24
Section 5.18. Restrictions on Subsidiaries...........................25
SECTION 6. EVENTS OF DEFAULT AND REMEDIES THEREFOR................25
Section 6.1. Events of Default......................................25
Section 6.2. Notice to Holders......................................27
Section 6.3. Acceleration of Maturities.............................27
Section 6.4. Rescission of Acceleration.............................27
SECTION 7. AMENDMENTS, WAIVERS AND CONSENTS.......................28
Section 7.1. Consent Required.......................................28
Section 7.2. Effect of Amendment or Waiver..........................28
Section 7.3. Solicitation of Holders................................28
SECTION 8. INTERPRETATION OF AGREEMENT; DEFINITIONS...............29
Section 8.1. Definitions............................................29
Section 8.2. Accounting Principles..................................37
Section 8.3. Directly or Indirectly.................................37
SECTION 9. MISCELLANEOUS..........................................37
Section 9.1. Registration of Notes..................................37
Section 9.2. Exchange of Notes......................................37
Section 9.3. Loss, Theft, Etc. of Notes.............................37
Section 9.4. Expenses, Stamp Tax Indemnity..........................38
Section 9.5. Powers and Rights Not Waived; Remedies Cumulative......38
Section 9.6. Notices................................................38
Section 9.7. Successors and Assigns.................................39
Section 9.8. Survival of Covenants and Representations..............39
Section 9.9. Severability...........................................39
Section 9.10. Reproduction of Documents..............................39
Section 9.11. Governing Law; Waiver of Jury Trial....................39
Section 9.12. Captions...............................................40
Signature....................................................................41
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ATTACHMENTS TO NOTE AGREEMENT:
Schedule I -- Names and Addresses of Purchasers
Schedule II -- Description of Subsidiaries and Indebtedness of the
Company and its Restricted Subsidiaries
Exhibit A -- Form of 7.82% Senior Note
Exhibit B -- Closing Certificate of the Company
Exhibit C -- Description of Closing Opinion of Special Counsel
Exhibit D -- Description of Closing Opinion of Independent Counsel
to Company
Exhibit E -- Form of Subsidiary Guaranty
Exhibit F -- Form of Intercreditor Agreement
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JOHNSON OUTDOORS INC.
1326 Willow Road
P.O. Box 901
Sturtevant, Wisconsin 53177-0901
NOTE AGREEMENT
Re: $50,000,000 7.82% Senior Notes
Due December 13, 2008
Dated as of December 13, 2001
To the Purchasers Named
in Schedule I Hereto which
are signatories to this Agreement
Ladies and Gentlemen:
The undersigned, JOHNSON OUTDOORS INC., a Wisconsin corporation, its
successors and assigns (the "Company"), agrees with the purchasers named in
Schedule I to the Agreement (the "Purchasers") as follows:
SECTION 1. DESCRIPTION OF NOTES AND COMMITMENT.
Section 1.1. Description of Notes. The Company will authorize the issue
and sale of $50,000,000 aggregate principal amount 7.82% Senior Notes due
December 13, 2008 (the "Notes") to be dated the date of issue, to bear interest
from such date at the rate of 7.82% per annum, payable semiannually on the
thirteenth day of June and December in each year (commencing June 13, 2002) and
at maturity and to bear interest on overdue principal (including any overdue
required or optional prepayment of principal) and Make-Whole Amount, if any, and
(to the extent legally enforceable) on any overdue installment of interest at
the Overdue Rate (as hereinafter defined) after the due date thereof, whether by
acceleration or otherwise, until paid, to be expressed to mature on December 13,
2008, and to be substantially in the form attached hereto as Exhibit A.
Interest on the Notes shall be computed on the basis of a 360-day year
of twelve 30-day months. The Notes are not subject to prepayment or redemption
at the option of the Company prior to their express maturity dates except on the
terms and conditions and in the amounts and with the Make-Whole Amount, if any,
set forth in ss.2 of this Agreement. The terms which are capitalized herein
shall have the meanings set forth in ss.8.l hereof unless the context shall
otherwise require.
Section 1.2. Subsidiary Guaranty. The payment by the Company of all
amounts due with respect to the Notes and the performance by the Company of its
obligations under this Agreement will be absolutely and unconditionally
guaranteed by the Subsidiary Guarantors
pursuant to the Subsidiary Guaranty (the "Subsidiary Guaranty"), which shall be
in substantially the form attached hereto as Exhibit E.
Payments under the Subsidiary Guaranties shall be subject to the terms
of an Intercreditor Agreement dated as of December 13, 2001 (the "Intercreditor
Agreement") which shall be in substantially the form attached hereto as Exhibit
F among the Purchasers, the banks which are parties to the Bank Credit Agreement
and certain other creditors of the Company which are beneficiaries of Guaranties
by Subsidiary Guarantors.
Section 1.3. Commitment, Closing Date. Subject to the terms and
conditions hereof and on the basis of the representations and warranties
hereinafter set forth, the Company agrees to issue Notes in the aggregate
principal amount of $50,000,000 and sell to each Purchaser, and each Purchaser,
severally and not jointly, agrees to purchase from the Company, on the Closing
Date mentioned below, Notes in the principal amount set forth opposite such
Purchaser's name on Schedule I hereto at a price of 100% of the principal amount
thereof.
Delivery of the Notes to be purchased by each Purchaser will be made at
the offices of Chapman and Cutler, 111 West Monroe, Chicago, Illinois 60603,
against payment therefor by such Purchaser by wire transfer of Federal or other
funds current and immediately available at the principal office of Bank One NA,
in Chicago, Illinois, ABA 071000013 for the account of the Company Account No.
5529069, in the amount of the purchase price, at or about 10:00 A.M., on
December 18, 2001 (the "Closing Date"). The Notes delivered to any Purchaser on
the Closing Date will be delivered to such Purchaser in the form of a single
registered Note in the form attached hereto as Exhibit A (unless different
denominations are specified by such Purchaser), registered in such Purchaser's
name or in the name of such Purchaser's nominee, all as such Purchaser may
specify at any time prior to the date fixed for delivery.
SECTION 2. PREPAYMENT OF NOTES.
No prepayment of the Notes may be made except to the extent and in the
manner expressly provided in this Agreement.
Section 2.1. Required Prepayments.
(a) Required Prepayment of Notes. In addition to paying the entire
remaining outstanding principal amount and the interest due on the Notes on the
maturity date thereof, the Company agrees to prepay and apply and there shall
become due and payable on December 13, 2004 and on each December 13 thereafter,
to and including December 13, 2007, on the principal indebtedness evidenced by
the Notes an amount equal to the lesser of (i) $10,000,000, or (ii) the
aggregate principal amount of the Notes outstanding.
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(b) Effects of Required Prepayments. No Make-Whole Amount shall be
payable in connection with any required prepayment made pursuant to ss.2.1(a).
Except as set forth in the next succeeding paragraph, any payment of less than
all the Notes pursuant to the provisions of ss.2.2 shall not relieve the Company
of the obligation to make required payments or prepayments on the Notes in
accordance with the terms of ss.2.1(a).
In the event the Company shall prepay less than all of the Notes
pursuant to ss.2.2 or repurchase any Notes in accordance with ss.5.13, the
amount of the prepayments required by ss.2.1(a) shall be reduced by an amount
which is the same percentage of such required prepayment as the percentage that
the principal amount of Notes so prepaid or repurchased is of the aggregate
principal amount of outstanding Notes immediately prior to such prepayment or
repurchase.
Section 2.2. Optional Prepayments of Notes. In addition to the
prepayments required by ss.2.1(a) and ss.2.3, the Company shall have the
privilege at any time of prepaying the then outstanding Notes, either in whole
or in part (but if in part then in units of $1,000,000 in the aggregate or an
integral multiple of $100,000 in the aggregate in excess thereof) by payment of
the principal amount of the Notes and accrued interest thereon to the date of
such prepayment, together with an amount equal to the then applicable Make-Whole
Amount, determined as of three business days prior to the date of such
prepayment pursuant to this ss.2.2.
Section 2.3. Prepayment of Notes upon Change of Control. In the event
that any Change of Control (as hereinafter defined) shall occur, the Company
will give written notice (the "Company Notice") of such fact in the manner
provided in ss.9.6 of this Agreement to the holders of the Notes. The Company
Notice shall be delivered promptly and in any event no later than three business
days following the occurrence of any Change of Control. The Company Notice shall
(a) describe the facts and circumstances of such Change of Control in reasonable
detail, (b) make reference to this ss.2.3 and the right of the holders of the
Notes to require payment on the terms and conditions provided for in this
ss.2.3, (c) offer in writing to prepay the outstanding Notes, together with
accrued interest to the date of prepayment and an amount equal to the then
applicable Make-Whole Amount and (d) specify the date for such prepayment (the
"Change of Control Prepayment Date") which Change of Control Prepayment Date
shall be no earlier than fifteen (15) days after the receipt of the Company
Notice and no later than thirty (30) days after the date the Change of Control
occurred. The holders of at least 40% in aggregate principal amount of
outstanding Notes shall have the right, by written notice given to the Company
not later than three business days prior to the Change of Control Prepayment
Date, to demand that the Company prepay all (but not less than all) of the Notes
then held by such holders on such Change of Control Prepayment Date. If no such
request shall be made by a holder, such holder shall be deemed to have declined
the Company's offer of prepayment. The prepayment price of any Notes payable
upon the Change of Control Prepayment Date shall be an amount equal to 100% of
the principal amount of the Notes so to be prepaid and accrued interest thereon
to the date of such prepayment, together with an amount equal to the then
applicable Make-Whole Amount, determined as of three business days prior to the
date of such prepayment pursuant to this ss.2.3.
-3-
Without limiting the foregoing, notwithstanding any failure on the part
of the Company to give the Company Notice herein required as a result of the
occurrence of a Change of Control, each holder of the Notes shall have the right
by delivery of written notice to the Company to require the Company to prepay,
and the Company will prepay, such holder's Notes in full, together with accrued
interest thereon to the date of prepayment and an amount equal to the Make-Whole
Amount at any time within ninety days after such holder has actual knowledge of
any such Change of Control. Notice of any required prepayment pursuant to this
ss.2.3 shall be delivered by any holder of Notes which was entitled to, but did
not receive, such Company Notice to the Company after such holder has actual
knowledge of such Change of Control. On the date (the "Delayed Prepayment Date")
designated in such holder's notice (which shall be not earlier than 10 business
days after the date of such holder's notice), the Company shall prepay in full
all Notes held by such holder together with accrued interest thereon to the date
of prepayment and an amount equal to the Make-Whole Amount, determined as of
three business days prior to the date of such prepayment pursuant to this
ss.2.3. If the holder of any Note gives any notice pursuant to this second
paragraph of ss.2.3, the Company shall give a Company Notice within two business
days of receipt of such notice and identify the Delayed Prepayment Date to all
holders of the Notes and each of such holders shall then and thereupon have the
rights with respect to the prepayment of its Notes as set forth in this ss.2.3;
provided only that any date for prepayment of such holder's Notes shall be the
Delayed Prepayment Date.
As used in this ss.2.3, a "Change of Control" of the Company shall be
deemed to have occurred at such time or times as the Johnson Family (as
hereinafter defined), shall fail to own, directly or indirectly, with full power
to vote or to direct the voting of, more than 51% of the voting power of the
Voting Stock of the Company.
The term "Johnson Family" shall mean, collectively, (i) Samuel C.
Johnson, his spouse, their children or grandchildren; (ii) any trust directly or
indirectly controlled by any one or more of such persons described in (i) or any
corporation described in (iii) below or any present or former officer of any
such corporation; (iii) any corporation or partnership in which voting control
as to such entity is held, directly or indirectly, by any one or more of such
persons described in (i) or such trusts described in (ii) or by the executor or
administrator of the estate or other legal representative of any such person
described in (i); and (iv) the executor or administrator of the estate or other
legal representative of any person described in (i).
Section 2.4. Notice of Optional Prepayments. The Company will give
notice of any prepayment of the Notes pursuant to ss.2.2 to each holder thereof
not less than 30 days nor more than 60 days before the date fixed for such
optional prepayment specifying (a) such date, (b) the principal amount of the
holder's Notes to be prepaid on such date, (c) that a Make-Whole Amount may be
payable, (d) the date when such Make-Whole Amount will be calculated which shall
be the date three business days prior to the prepayment date, (e) the estimated
Make-Whole Amount and (f) the accrued interest applicable to such prepayment.
Notice of prepayment having been so given, the aggregate principal amount of the
Notes specified in such notice, together with the Make-Whole Amount, if any, and
accrued interest thereon shall become due and payable on the prepayment date.
Not later than two business days prior to the prepayment date specified in such
notice, the Company shall provide each holder of a Note written notice of
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the Make-Whole Amount, if any, payable in connection with such prepayment and,
whether or not any Make-Whole Amount is payable, a reasonably detailed
computation thereof.
Section 2.5. Allocation of Prepayments. All partial prepayments of
Notes shall be applied on all outstanding Notes being prepaid ratably in
accordance with the unpaid principal amounts thereof.
Section 2.6. Direct Payment. Notwithstanding anything to the contrary
in this Agreement or the Notes, in the case of any Note owned by any Purchaser
or such Purchaser's nominee or owned by any other Institutional Holder or its
nominee which has given written notice to the Company requesting that the
provisions of this ss.2.6 shall apply, the Company will promptly and punctually
pay when due the principal thereof and the Make-Whole Amount, if any, and
interest thereon, without any presentment thereof directly to such Purchaser,
such Purchaser's nominee or any such subsequent Institutional Holder or its
nominee at its address or such nominee's address set forth in Schedule I or at
such other address as such Purchaser, any such Purchaser's nominee or any such
subsequent Institutional Holder may from time to time designate in writing to
the Company or, if an account with a United States bank is designated for such
Purchaser or such Purchaser's nominee on Schedule I hereto or in any written
notice to the Company from such Purchaser, such Purchaser's nominee or any such
subsequent Institutional Holder, the Company will make such payments in
immediately available funds to such bank account before 10:00 A.M., marked for
attention as indicated, or in such other manner or to such other account in any
bank in the United States as such Purchaser, such Purchaser's nominee or any
such subsequent Institutional Holder may from time to time direct in writing.
SECTION 3. REPRESENTATIONS.
Section 3.1. Representations of the Company. The Company represents and
warrants that all representations set forth in the form of Closing Certificate
attached hereto as Exhibit B are true and correct as of the date of the
execution and delivery hereof by the Company and are incorporated herein by
reference with the same force and effect as though herein set forth in full.
Section 3.2. Purchase for Investment. (a) Each Purchaser represents,
and in entering into this Agreement the Company understands, that such Purchaser
is acquiring the Notes for the purpose of investment and not with a view to the
distribution thereof; provided that the disposition of such Purchaser's property
shall at all times be and remain within its control. Each Purchaser acknowledges
that the Notes have not and will not be registered under the Act and hereby
agrees that it will not reoffer, resell, pledge or otherwise transfer the Notes
purchased by it under this Agreement except pursuant to any available exemption
from the requirements of Section 5 of the Act and in accordance with any
applicable state securities laws.
Section 3.3. Source of Funds. Each Purchaser represents that at least
one of the following statements is an accurate representation as to each source
of funds (a "Source") to be used by it to pay the purchase price of the Notes to
be purchased by it hereunder:
(a) the Source is an "insurance company general account"
within the meaning of Department of Labor Prohibited Transaction
Exemption ("PTE") 95-60 (issued
-5-
July 12, 1995) and there is no employee benefit plan, treating as a
single plan all plans maintained by the same employer or employee
organization, with respect to which the amount of the general account
reserves and liabilities for all contracts held by or on behalf of such
plan, exceeds ten percent (10%) of the total reserves and liabilities
of such general account (exclusive of separate account liabilities)
plus surplus, as set forth in the NAIC Annual Statement for such
Purchaser most recently filed with such Purchaser's state of domicile;
or
(b) the Source is either (i) an insurance company pooled
separate account, within the meaning of PTE 90-1 (issued January 29,
1990), or (ii) a bank collective investment fund, within the meaning of
the PTE 91-38 (issued July 12, 1991) and, except as such Purchaser
prior to the execution and delivery of this Agreement has disclosed to
the Company in writing pursuant to this paragraph (b), no employee
benefit plan or group of plans maintained by the same employer or
employee organization beneficially owns more than 10% of all assets
allocated to such pooled separate account or collective investment
fund; or
(c) the Source constitutes assets of an "investment fund"
(within the meaning of Part V of the QPAM Exemption) managed by a
"qualified professional asset manager" or "QPAM" (within the meaning of
Part V of the QPAM Exemption), no employee benefit plan's assets that
are included in such investment fund, when combined with the assets of
all other employee benefit plans established or maintained by the same
employer or by an affiliate (within the meaning of Section V(c)(1) of
the QPAM Exemption) of such employer or by the same employee
organization and managed by such QPAM, exceed 20% of the total client
assets managed by such QPAM, the conditions of Part I(c) and (g) of the
QPAM Exemption are satisfied, neither the QPAM nor a person controlling
or controlled by the QPAM (applying the definition of "control" in
Section V(e) of the QPAM Exemption) owns a 5% or more interest in the
Company and (i) the identity of such QPAM and (ii) the names of all
employee benefit plans whose assets are included in such investment
fund have been disclosed to the Company in writing pursuant to this
paragraph (c) prior to the execution and delivery of this Agreement; or
(d) the Source is a governmental plan; or
(e) the Source is one or more employee benefit plans, or a
separate account or trust fund comprised of one or more employee
benefit plans, each of which prior to the execution and delivery of
this Agreement has been identified to the Company in writing pursuant
to this paragraph (e); or
(f) the Source does not include assets of any employee benefit
plan, other than a plan exempt from the coverage of ERISA; or
(g) the Source is an insurance company separate account
maintained solely in connection with the fixed contractual obligations
of the insurance company under which the amounts payable, or credited,
to any employee benefit plan (or its related trust) and to
-6-
any participant or beneficiary of such plan (including any annuitant)
are not affected in any manner by the investment performance of the
separate account.
If any Purchaser or any subsequent transferee of the Notes indicates that such
Purchaser or such transferee is relying on any representation contained in
paragraph (b), (c) or (e) above, the Company shall deliver on the date of
issuance of such Notes and on the date of any applicable transfer a certificate,
which shall either state that (i) it is neither a party in interest nor a
"disqualified person" (as defined in Section 4975(e)(2) of the Code), with
respect to any plan identified pursuant to paragraphs (b) or (e) above, or (ii)
with respect to any plan, identified pursuant to paragraph (c) above, neither it
nor any "affiliate" (as defined in Section V(c) of the QPAM Exemption) has at
such time, and during the immediately preceding one year, exercised the
authority to appoint or terminate said QPAM as manager of any plan identified in
writing pursuant to paragraph (c) above or to negotiate the terms of said QPAM's
management agreement on behalf of any such identified plan. As used in this
ss.3.3, the terms "employee benefit plan", "governmental plan", "party in
interest" and "separate account" shall have the respective meanings assigned to
such terms in Section 3 of ERISA.
SECTION 4. CLOSING CONDITIONS.
The obligation of each Purchaser to purchase the Notes on the Closing
Date shall be subject to the performance by the Company of its agreements
hereunder which by the terms hereof are to be performed at or prior to the time
of delivery of the Notes and to the following further conditions precedent:
Section 4.1. Closing Certificate. Concurrently with the delivery of
Notes to such Purchaser on the Closing Date, such Purchaser shall have received
a Closing Certificate dated the Closing Date, signed by the Chief Financial
Officer of the Company, substantially in the form attached hereto as Exhibit B,
the truth and accuracy of which on the Closing Date shall be a condition to such
Purchaser's obligation to purchase the Notes proposed to be purchased by such
Purchaser.
Section 4.2. Legal Opinions. Concurrently with the delivery of Notes to
such Purchaser on the Closing Date, such Purchaser shall have received from
Chapman and Cutler, who is acting as special counsel to the Purchaser in this
transaction and from Foley & Lardner, independent counsel to the Company, their
respective opinions dated the Closing Date, in form and substance satisfactory
to such Purchaser, and covering the matters set forth in Exhibits C and D,
attached hereto.
Section 4.3. Company's Existence and Authority. On or prior to the
Closing Date, such Purchaser shall have received, in form and substance
reasonably satisfactory to such Purchaser, such documents and evidence with
respect to the Company as such Purchaser may reasonably request in order to
establish the existence and good standing of the Company and the authorization
of the transactions contemplated by this Agreement.
Section 4.4. Consent of Holders of Other Securities. Any consents or
approvals required to be obtained from any holder or holders of any outstanding
Security of the Company and any
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amendments of agreements pursuant to which any Securities may have been issued
which will be necessary to permit the consummation of the transactions
contemplated hereby on the Closing Date shall have been obtained and all such
consents or amendments shall be satisfactory in form and substance to such
Purchaser.
Section 4.5. Legality of Investment. The Notes to be purchased by any
Purchaser shall be a legal investment for such Purchaser under the laws of each
jurisdiction to which such Purchaser may be subject (without resort to any
so-called basket provisions to such laws).
Section 4.6. Satisfactory Proceedings. All proceedings taken in
connection with the transactions contemplated by this Agreement, and all
documents necessary to the consummation thereof, shall be satisfactory in form
and substance to such Purchaser, and such Purchaser shall have received a copy
(executed or certified as may be appropriate) of all legal documents or
proceedings taken in connection with the consummation of such transactions.
Section 4.7. Waiver of Conditions. If on the Closing Date the Company
fails to tender to any Purchaser the Notes to be issued to any Purchaser on such
date or if the conditions specified in this ss.4 have not been fulfilled, any
Purchaser may thereupon elect to be relieved of all further obligations under
this Agreement. Without limiting the foregoing, if the conditions specified in
this ss.4 have not been fulfilled, such Purchaser may waive compliance by the
Company with any such condition to such extent as such Purchaser may in its sole
discretion determine. Nothing in this ss.4.7 shall operate to relieve the
Company of any of its obligations hereunder or to waive such Purchaser's rights
against the Company.
Section 4.8. Private Placement Numbers. The Company shall have obtained
for the Notes a Private Placement Number issued by Standard & Poor's CUSIP
Bureau (in cooperation with the Securities Valuation office of the National
Association of Insurance Commissioners).
Section 4.9. Subsidiary Guaranty. The Subsidiary Guaranty shall have
been duly authorized, executed and delivered by each Subsidiary Guarantor, shall
constitute the legal, valid and binding contract and agreement of each
Subsidiary Guarantor and such Purchaser shall have received a true, correct and
complete copy thereof.
Section 4.10. Intercreditor Agreement. The Intercreditor Agreement
shall have been duly authorized, executed and delivered by each of the
Purchasers and the administrative agent on behalf of the banks which are parties
to the Bank Credit Agreement and any other creditors which are beneficiaries of
Guaranties by Subsidiary Guarantors.
Section 4.11. Payment of Closing Costs. The Company shall have paid the
costs, expenses and disbursements of the Purchasers' special counsel which are
reflected in statements of such counsel rendered prior to the Closing pursuant
to ss.9.4; and thereafter (without limiting the provisions of ss.9.4) the
Company will pay, promptly upon receipt of any supplemental statements therefor,
additional costs or fees, if any, and expenses and disbursements of the
Purchasers' counsel in connection with the Closing (including disbursements
unposted as of the Closing Date) and attention to post-Closing matters.
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SECTION 5. COMPANY COVENANTS.
From and after the date of this Agreement and continuing so long as any
amount remains unpaid on any date:
Section 5.1. Corporate Existence, Etc. The Company will preserve and
keep in force and effect, and will cause each Restricted Subsidiary to preserve
and keep in force and effect, its corporate existence. The Company will preserve
and keep in force and effect, and will cause each Restricted Subsidiary to
preserve and keep in force and effect, all franchises, licenses and permits
necessary to the proper conduct of its business. The foregoing provisions of
this ss.5.1 shall not, however, prevent any transaction not prohibited by
ss.5.8.
Section 5.2. Insurance. The Company will maintain, and will cause each
Restricted Subsidiary to maintain, insurance coverage by financially sound and
reputable insurers consistent with such forms and amounts and against such risks
as are presently maintained by the Company and its Restricted Subsidiaries
provided that, notwithstanding the foregoing, the Company and its Restricted
Subsidiaries shall maintain insurance coverage in such forms and amounts and
against such risks as are customary for business entities of established
reputation engaged in the same or a similar business and owning and operating
similar properties.
Section 5.3. Taxes, Claims for Labor and Materials, Compliance with
Laws. (a) The Company will promptly pay and discharge, and will cause each
Restricted Subsidiary promptly to pay and discharge, all lawful taxes,
assessments and governmental charges or levies imposed upon it or upon or in
respect of all or any part of its property or business, all trade accounts
payable in accordance with usual and customary business terms, and all claims
for work, labor or materials, which if unpaid might become a Lien or charge upon
any of its property; provided the Company or such Restricted Subsidiary shall
not be required to pay any such tax, assessment, charge, levy, account payable
or claim if (1) the validity, applicability or amount thereof is being contested
in good faith by appropriate actions or proceedings which will prevent the
forfeiture or sale of any property of the Company or such Restricted Subsidiary
or any material interference with the use thereof by the Company or such
Restricted Subsidiary, (2) the Company or such Restricted Subsidiary shall set
aside on its books, reserves deemed by the Company to be adequate with respect
thereto and (3) the nonpayment of all such taxes and assessments in the
aggregate could not reasonably be expected to have a material adverse effect on
the Company and its Restricted Subsidiaries.
(b) The Company will promptly comply, and will cause each Restricted
Subsidiary to comply, in all material respects with all laws, ordinances or
governmental rules and regulations to which it is subject, including without
limitation, the Occupational Safety and Health Act of 1970, as amended, ERISA,
and all laws, ordinances, governmental rules and regulations relating to
environmental protection in all applicable jurisdictions, the violation of which
would materially and adversely affect the properties, business, prospects,
profits or condition of the Company and its Restricted subsidiaries, taken as
whole, or would result in any Lien not permitted under ss.5.7.
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Section 5.4. Maintenance, Etc. The Company will maintain, preserve and
keep, and will cause each Restricted Subsidiary to maintain, preserve and keep,
its material properties which are used or useful in the conduct of its business
(whether owned in fee or a leasehold interest) in good repair and working order,
ordinary wear and tear excepted, and from time to time will make all necessary
repairs, replacements, renewals and additions so that at all times the
efficiency thereof shall be maintained.
Section 5.5. Nature of Business. Neither the Company nor any Restricted
Subsidiary will engage in any business if, as a result, the general nature of
the business, taken on a consolidated basis, which would then be engaged by the
Company and its Restricted Subsidiaries would be substantially changed from the
general nature of the business engaged by the Company and its Restricted
Subsidiaries on the date of this Agreement.
Section 5.6. Limitations on Indebtedness. (a) The Company will not, and
will not permit any Restricted Subsidiary to, create, issue, assume, guarantee
or otherwise incur or in any manner become liable in respect of any additional
Current Debt or Funded Debt except:
(1) the Notes;
(2) Current Debt and Funded Debt of the Company and its
Restricted Subsidiaries outstanding as of the date of this Agreement
and described on Schedule II attached hereto;
(3) Current Debt or Funded Debt of the Company and its
Restricted Subsidiaries; provided that at the time of creation,
issuance, assumption, guarantee or incurrence thereof and after giving
effect thereto and to the application of the proceeds thereof,
Consolidated Funded Debt would not exceed 55% of Consolidated Total
Capitalization, provided that for purposes of any determination of
additional Funded Debt to be issued or incurred within the limitation
of this ss.5.6(a)(3), the Average Outstanding Balance of Consolidated
Current Debt (as defined in ss.5.6(e) below) computed for the
Compliance Period (as defined in ss.5.6(e) below) preceding the date of
any such determination shall be deemed to constitute outstanding Funded
Debt of the Company incurred as of the last day of such Compliance
Period and, except to the extent that any such Current Debt was
refinanced with Funded Debt, in which case such Current Debt, to the
extent it was refinanced with Funded Debt, will not be deemed to
constitute Funded Debt, shall be deemed outstanding at all times prior
to the end of the next Compliance Period; and
(4) additional Current Debt or Funded Debt of a Restricted
Subsidiary to the Company or to an Eighty Percent-Owned Restricted
Subsidiary.
(b) The Company will not at any time permit the sum of (i) Current Debt
and Funded Debt of Restricted Subsidiaries (other than Current Debt and Funded
Debt owed to the Company or an Eighty Percent-Owned Restricted Subsidiary and
Excluded Subsidiary Obligations), plus (ii) Funded Debt of the Company and
Restricted Subsidiaries secured by Liens permitted by ss.5.7(a)(9) to exceed 25%
of Consolidated Tangible Assets.
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(c) Any Person which becomes a Restricted Subsidiary after the date
hereof shall for all purposes of this ss.5.6 be deemed to have created, assumed
or incurred or issued at the time it becomes a Restricted Subsidiary all Current
Debt and Funded Debt of such Person existing immediately after it becomes a
Restricted Subsidiary.
(d) The renewal, extension or refunding of any Current Debt or Funded
Debt issued or incurred in accordance with the limitations of this ss.5.6 shall
constitute the issue of additional Current Debt or Funded Debt, as the case may
be, which is, in turn, subject to the limitations of the applicable provisions
of this ss.5.6.
(e) For the purposes of ss.5.6(a) hereof, the following terms shall
have the meanings ascribed to them below:
"Average Outstanding Balance of Consolidated Current Debt"
shall mean the average of the aggregate unpaid principal amounts of
Consolidated Current Debt outstanding on each of the Company's July
fiscal month-end, August 15, the Company's August fiscal month-end,
September 15 and the Company's September fiscal month-end for each
Compliance Period.
"Compliance Period" shall mean the period beginning on the
date of the Company's July fiscal month-end and ending on the date of
the Company's September fiscal month-end in each calendar year.
(f) The Company will not at any time permit Indebtedness of Foreign
Subsidiaries outstanding pursuant to the Bank Credit Agreement to exceed 10.5%
of Consolidated Tangible Assets.
(g) The Company will not permit any Restricted Subsidiary to become a
direct borrower , co-obligor or guarantor under the Bank Credit Agreement;
provided that (i) Foreign Subsidiaries may become direct borrowers under the
Bank Credit Agreement within the limitations of this ss.5.6, and (ii) subject to
ss.5.17, Subsidiary Guarantors may be obligated on the subsidiary guaranties
under the Bank Credit Agreement.
Section 5.7. Limitation on Liens. (a) The Company will not, and will
not permit any Restricted Subsidiary to, create or incur, or suffer to be
incurred or to exist, any Lien on its or their property or assets, whether now
owned or hereafter acquired, or upon any income or profits therefrom, or
transfer any property for the purpose of subjecting the same to the payment of
obligations in priority to the payment of its or their general creditors, or
acquire or agree to acquire or permit any Restricted Subsidiary to acquire any
property or assets pursuant to conditional sales agreements or other title
retention devices, except:
(1) Liens for property taxes and assessments or governmental
charges or levies and Liens securing claims or demands of mechanics and
materialmen; provided that payment thereof is not at the time required
by ss.5.3;
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(2) Liens of or resulting from any judgment or award, the time
for the appeal or petition for rehearing of which shall not have
expired, or in respect of which the Company or a Restricted Subsidiary
shall at any time in good faith be prosecuting an appeal or proceeding
for a review and in respect of which a stay of execution pending such
appeal or proceeding for review shall have been secured;
(3) Liens incidental to the conduct of business or the
ownership of properties and assets (including, without limitation,
warehousemen's and attorneys' liens, statutory landlords' liens,
workers' compensation liens and ERISA liens) and deposits, pledges or
Liens to secure the performance of bids, tenders or trade contracts, or
to secure statutory obligations, surety or appeal bonds or other Liens
of like general nature incurred in the ordinary course of business and
not in connection with the borrowing of money; provided that the
aggregate amount of the obligations so secured will not materially
impair the value of the assets so secured or the use thereof in the
ordinary course of business and provided, further, that in each case,
the obligation so secured will not exceed $1,000,000 and is not overdue
or, if overdue, is being contested in good faith by appropriate actions
or proceedings;
(4) minor survey exceptions or minor encumbrances, easements
or reservations, or rights of others for rights-of-way, utilities and
other similar purposes, or zoning or other restrictions as to the use
of real properties, which are necessary for the conduct of the
activities of the Company and its Restricted Subsidiaries or which
customarily exist on properties of Persons engaged in similar
activities and similarly situated and which do not in any event
materially impair their use in the operation of the business of the
Company and its Restricted Subsidiaries;
(5) Liens securing Indebtedness of a Restricted Subsidiary to
the Company or to an Eighty Percent-Owned Restricted Subsidiary;
(6) Liens existing as of the date of this Agreement securing
Indebtedness of the Company or any Restricted Subsidiary outstanding on
such date and described on Schedule II attached to this Agreement;
(7) Liens incurred after the date of this Agreement given to
secure the payment of the cost of the acquisition or construction of
fixed assets useful and intended to be used in carrying on the business
of the Company or a Restricted Subsidiary; provided that (i) the Lien
shall attach solely to the fixed assets acquired or constructed, (ii)
the Lien shall have been created or incurred within twelve (12) months
of the date of acquisition or the date of completion of construction,
as the case may be, of such fixed assets, (iii) at the time of the
acquisition or construction of such fixed assets the aggregate amount
remaining unpaid on all Indebtedness secured by Liens on such fixed
assets whether or not assumed by the Company or a Restricted Subsidiary
shall not exceed an amount equal to the lesser of the total cost or
fair market value at the time of acquisition or completion of
construction of such fixed assets (as determined in good faith by the
Board of Directors of the Company) and (iv) all such Indebtedness shall
have been incurred within the applicable limitations of ss.5.6;
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(8) Liens existing on any assets at the time of acquisition
thereof or at the time of acquisition by the Company or a Restricted
Subsidiary of any business entity then owning such assets, whether or
not such existing Liens were given to secure the payment of the
purchase price of the assets to which they attach, so long as they were
not incurred, extended or renewed in contemplation of such acquisition;
provided that (i) any such Lien shall attach solely to the assets
acquired or the assets of such business entity and (ii) at the time of
the acquisition of the assets or business entity, as the case may be,
the aggregate amount remaining unpaid on all Indebtedness secured by
Liens on such assets (whether or not assumed by the Company or such
Restricted Subsidiary) shall not be in excess of the fair market value
of such assets at the time of such acquisition (as determined in good
faith by the Board of Directors of the Company);
(9) Liens incurred after the date of this Agreement given to
secure Funded Debt of the Company or any Restricted Subsidiary in
addition to the Liens permitted by the preceding clauses (1) through
(8) hereof; provided that all Indebtedness secured by such Liens shall
have been incurred within the applicable limitations of ss.5.6; and
(10) any extension, renewal or replacement of any Lien
permitted by the preceding clauses (6), (7) and (8) of this ss.5.7 in
respect of the same property theretofore subject to such Lien in
connection with the extension, renewal or refunding of the Indebtedness
secured thereby; provided that (i) such Lien shall attach solely to the
same such property and (ii) such extension, renewal or refunding of
such Indebtedness shall have been incurred within the applicable
limitations of ss.5.6.
(b) In the event any property or assets of the Company or any
Restricted Subsidiary are subjected to a Lien not otherwise permitted by this
ss.5.7, the Company will make or cause to be made provision whereby the Notes
will be secured, to the full extent permitted under applicable law, equally and
ratably with all other obligations secured thereby, and in any case the Notes
shall (but only in such event) have the benefit, to the full extent that the
holders may be entitled thereto under applicable law, of an equitable Lien on
such property or assets equally and ratably securing the Notes. Compliance with
the provisions of this paragraph shall not be deemed to constitute a waiver of,
or consent to, any Default or Event of Default caused by any violation of the
provisions of this ss.5.7.
Section 5.8. Mergers, Consolidations, Sales of Assets, Etc. (a) The
Company will not, and will not permit any Restricted Subsidiary to, consolidate
with or be a party to a merger with or liquidate into any other Person;
provided, however, that:
(1) any Restricted Subsidiary may merge or consolidate with or
liquidate into the Company, any Wholly-Owned Subsidiary or any
Restricted Subsidiary that is the direct or indirect parent of such
Restricted Subsidiary and any Restricted Subsidiary (other than a
Principal Subsidiary) may merge or consolidate with or liquidate into
any other Restricted Subsidiary so long as (i) in any merger or
consolidation involving the Company, the Company shall be the surviving
corporation and (ii) in any merger, consolidation or liquidation
involving a Domestic Restricted Subsidiary and a non-
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Domestic Restricted Subsidiary, the Domestic Restricted Subsidiary
shall be the surviving corporation; and
(2) the Company or any Restricted Subsidiary may consolidate
or merge with any other corporation if (i) (in the case of a merger or
consolidation involving the Company) the surviving or acquiring
corporation (if other than the Company) (A) is organized and existing
under the laws of any State of the United States of America or the
District of Columbia, (B) shall expressly assume in writing the due and
punctual performance of all obligations of the Company under this
Agreement and the due and punctual payment of the principal of and
Make-Whole Amount if any, and interest on all the Notes, according to
their tenor, and (C) the Company or such surviving or acquiring
corporation shall furnish to the holders of the Notes an opinion of
counsel satisfactory to such holders to the effect that the instrument
of assumption has been duly authorized, executed and delivered and
constitutes the legal, valid and binding contract and agreement of the
surviving or acquiring corporation enforceable in accordance with its
terms, except as enforcement of such terms may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally, and subject, as to enforceability, to
general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law), or (ii) (in the case of a
merger or consolidation involving a Restricted Subsidiary) such
Restricted Subsidiary shall be the surviving corporation and (iii) in
the case of any consolidation or merger described in either (i) or
(ii), at the time of such consolidation or merger, and after giving
effect thereto (A) no Default or Event of Default shall have occurred
and be continuing and (B) the Company, such surviving or acquiring
corporation or such Restricted Subsidiary, as the case may be, would be
permitted to incur at least $1 of additional Funded Debt under the
applicable provisions of ss.5.6.
(b) The Company will not, and will not permit any Restricted Subsidiary
to, sell, lease, transfer, abandon or otherwise dispose of, assets (other than
(x) sales of goods, products, inventory or services in the ordinary course of
business to customers, (y) the sale, lease, transfer or disposition of assets to
the Company or a Domestic Restricted Subsidiary if a merger between such
transferor and such Domestic Restricted Subsidiary would be permitted under
ss.5.8(a)(1), and (z) sales or other dispositions of assets, having a fair
market value (as determined in good faith by the chief financial officer of the
Company) in any single sale or disposition of not greater than $250,000 which
the Company determines have become inadequate, obsolete, worn out, unsuitable,
undesirable or unnecessary in the conduct of its business); provided that the
foregoing restrictions do not apply to the sale of assets for cash or property
to a Person or Persons if all of the following conditions are met:
(1) either (i) the net book value of such assets, when added
to the net book value of all other assets sold, leased, transferred or
otherwise disposed of by the Company and its Restricted Subsidiaries
pursuant to this ss.5.8(b)(1) during the immediately preceding
twelve-month period do not constitute 10% of Consolidated Total Assets
(determined as of the end of the immediately preceding fiscal quarter)
or (ii) the sum of the portions of Consolidated Net Income contributed
for the immediately preceding twelve-month period (each as determined
in good faith by the chief financial
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officer of the Company) by (A) such assets, (B) each Restricted
Subsidiary (or portion thereof) disposed of during such period and (C)
other assets of the Company and its Restricted Subsidiaries disposed of
during such period pursuant to this ss.5.8(b)(1) do not constitute 10%
of Consolidated Net Income for such period; and
(2) immediately after the consummation of the transaction and
after giving effect thereto, (i) no Default or Event of Default would
exist and (ii) the Company would be permitted to incur at least $1 of
additional Funded Debt under the provisions of ss.5.6(a)(3).
Computations made pursuant to ss.5.8(b)(1) shall include dispositions
made pursuant to ss.ss.5.8(c)(3) and 5.8(c)(4) and computations pursuant to
ss.ss.5.8(c)(3) and 5.8(c)(4) shall include dispositions made pursuant to
ss.5.8(b)(1).
(c) The Company will not, and will not permit any Restricted Subsidiary
to, sell, transfer or otherwise dispose of any shares of capital stock
(including as "stock" for the purposes of this ss.5.8(c), any warrants, rights
or options to purchase or otherwise acquire stock or other Securities
exchangeable for or convertible into such stock) of any Restricted Subsidiary,
and the Company will not permit any Restricted Subsidiary to issue any shares of
stock of such Restricted Subsidiary (except for any sale, transfer, issuance or
other disposition of stock to the Company or a Restricted Subsidiary if a merger
between such transferor or issuer and such Restricted Subsidiary would be
permitted under ss.5.8(a)(1)); provided that the foregoing restrictions do not
apply to:
(1) the sale, transfer or issuance of directors' qualifying
shares of capital stock;
(2) the sale, transfer or issuance of any de minimis number of
shares of capital stock to foreign domiciliaries as may be required by
law;
(3) the sale, transfer or other disposition of all or any part
of the shares of capital stock of any Restricted Subsidiary (other than
a Principal Subsidiary);
(4) the sale, transfer or other disposition of all shares of
capital stock of a Principal Subsidiary held by the Company and its
Restricted Subsidiaries if all of the following conditions are met:
(i) simultaneously with such sale, transfer, or
disposition, all shares of stock and all Indebtedness of such
Principal Subsidiary at the time owned by the Company and by
every other Restricted Subsidiary shall be sold, transferred
or disposed of as an entirety;
(ii) the Board of Directors of the Company shall have
determined, as evidenced by a resolution thereof, that the
proposed sale, transfer or disposition of said shares of stock
and Indebtedness is in the best interests of the Company;
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(iii) said shares of stock and Indebtedness are sold,
transferred or otherwise disposed of to a Person or Persons,
for cash and/or tangible assets and on terms reasonably deemed
by the Board of Directors of the Company to be adequate and
satisfactory; and
(iv) the Principal Subsidiary being disposed of shall
not have any continuing investment in the Company or any other
Restricted Subsidiary not being simultaneously disposed of;
(5) the sale, transfer or issuance of shares of capital stock
of a Restricted Subsidiary in connection with the purchase or other
acquisition by the Company or a Restricted Subsidiary of all or
substantially all of the capital stock, properties or assets of any
Person or all or substantially all of the properties or assets of any
Person which constitute a distinct product line, division or other
operating segment; provided that:
(i) after giving effect to such sale, transfer or
issuance and such purchase or other acquisition, no Default or
Event of Default would then exist;
(ii) the aggregate fair value of all such capital
stock, properties or assets so acquired attributable to the
issuance, sale or transfer of such shares of capital stock in
each sale, transfer or issuance of such shares shall equal or
exceed the fair value of such shares (in each case as
determined in good faith by the Board of Directors of the
Company at the time of such acquisition taking into
consideration the terms of any written agreement described in
ss.5.8(c)(5)(iii) below); and
(iii) the shares of capital stock are sold,
transferred or issued pursuant to a written agreement which
(A) contemplates the subsequent purchase or redemption of such
shares by the Company or the Restricted Subsidiary whose
shares have been so sold, transferred or issued or any direct
or indirect parent of such Restricted Subsidiary upon request
of the transferee of such shares or upon demand by the Company
or such Restricted Subsidiary or any direct or indirect parent
of such Restricted Subsidiary made pursuant to the terms of
such written agreement at a price or prices computed by
reference to such formulas or indices or other references as
are determined in good faith by the Board of Directors of the
Company at the time of such acquisition to be in the best
interests of the Company and its Restricted Subsidiaries and
(B) prohibits the transfer of such shares to any Person other
than the Company or the Restricted Subsidiary whose shares
have been so sold, transferred or issued or any direct or
indirect parent of such Restricted Subsidiary; and
(6) the sale, transfer or issuance of capital stock to
employees of Restricted Subsidiaries as part of any incentive stock
arrangement other than any incentive stock agreement entered into in
connection with any purchase or acquisition contemplated by
ss.5.8(c)(5) provided that:
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(i) after giving effect to such issuance no
Restricted Subsidiary shall cease to be a Restricted
Subsidiary; and
(ii) the aggregate fair value (in each case
determined in good faith at the time of such issuance by the
Board of Directors of the Company or such person or committee
as the Board of Directors of the Company may authorize to make
such determination pursuant to the terms of any such incentive
stock arrangement) of all shares of capital stock of such
Restricted Subsidiaries issued to such employees shall not
exceed $2,000,000;
provided, however, that notwithstanding the foregoing, any sale, transfer,
issuance or other disposition of shares pursuant to ss.ss.5.8(c)(3) or 5.8(c)(4)
may not be consummated if either (y) the net book value of the assets of such
Restricted Subsidiary attributable to such sale, transfer, issuance or other
disposition of shares when added to the net book value of all other assets sold,
leased, transferred or otherwise disposed of by the Company and its Restricted
Subsidiaries during the immediately preceding twelve-month period would
constitute more than 10% of Consolidated Total Assets (determined as of the end
of the immediately preceding fiscal quarter) or (z) the portions of Consolidated
Net Income for the immediately preceding twelve-month period contributed (each
as determined in good faith by the chief financial officer of the Company) by
(1) such assets, (2) each Restricted Subsidiary (or portion thereof) disposed of
during such period and (3) other assets of the Company and its Restricted
Subsidiaries sold, leased, transferred or otherwise disposed of by the Company
and its Restricted Subsidiaries during such period would exceed 10% of
Consolidated Net Income for such period.
Computations made with respect to ss.ss.5.8(c)(3) and 5.8(c)(4) as
contemplated by this ss.5.8(c) shall include dispositions made within the
provisions of ss.ss.5.8(b)(1) and computations made pursuant to ss.ss.5.8(b)(1)
shall include dispositions made pursuant to ss.ss.5.8(c)(3) and 5.8(c)(4).
Section 5.9. Consolidated Net Worth. The Company will at all times keep
and maintain Consolidated Net Worth at an amount not less than the sum of (a)
$93,435,000, plus (b) an aggregate amount equal to 25% of its Consolidated Net
Income (but, in each case, only if a positive number) for each completed fiscal
year beginning with the fiscal year ended September 30, 2002.
Section 5.10. Fixed Charge Coverage Ratio. The Company will keep and
maintain the Fixed Charge Coverage Ratio at not less than 1.5 to 1; provided
that on not more than one occasion the Fixed Charge Coverage Ratio can be less
than 1.5 to 1 so long as it is greater than 1.2 to 1.
Section 5.11. Distributions. (a) The Company will not, and will not
permit any Restricted Subsidiary to, except as hereinafter provided:
(1) declare or pay any dividends, either in cash or property,
on any shares of its capital stock of any class (except dividends or
other distributions payable solely in shares of capital stock of the
Company and dividends paid by Restricted Subsidiaries to
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the Company or other Restricted Subsidiaries in respect of capital
stock of Restricted Subsidiaries owned by the Company or such other
Restricted Subsidiaries); or
(2) directly or indirectly, or through any Subsidiary,
purchase, redeem or retire any shares of its capital stock of any class
or any warrants, rights or options to purchase or acquire any shares of
its capital stock (other than (i) in exchange for or out of the net
cash proceeds to the Company obtained within three months of such
purchase, redemption or retirement from the issue or sale of other
shares of capital stock of the Company or warrants, rights or options
to purchase or acquire any shares of its capital stock, or (ii) in
connection with any purchase or redemption of any shares of capital
stock sold, transferred or issued in accordance with ss.ss.5.8(c)(1),
5.8(c)(2) or 5.8(c)(5)); or
(3) make any other payment or distribution, either directly or
indirectly or through any Subsidiary, in respect of its capital stock;
(such declarations or payments of dividends, purchases, redemptions or
retirements of capital stock and warrants, rights or options and all such other
payments or distributions being herein collectively called "Distributions"),
unless after giving effect thereto no Default or Event of Default would exist
and the aggregate amount of Distributions made during the period from and after
September 29, 2001 to and including the date of the making of the Distributions
in question would not exceed the sum of (1) $16,412,000, plus (2) 50% of
Consolidated Net Income for such period, computed on a cumulative basis for said
entire period (or if such Consolidated Net Income is a deficit figure, then
minus 100% of such deficit).
(b) For the purposes of this ss.5.11, the amount of any Distribution
declared, paid or distributed in property shall be deemed to be the greater of
the book value or fair market value (as determined in good faith by the Board of
Directors of the Company) of such property at the time of the making of the
Distribution in question.
(c) The Company will not authorize or make a Distribution on its
capital stock if after giving effect to the proposed Distribution:
(1) a Default or Event of Default would exist, or
(2) the Company could not incur at least $1.00 of additional
Funded Debt pursuant to ss.5.6(a)(3).
Section 5.12. Investments. The Company will not, and will not permit
any Restricted Subsidiary to, make any Investments, other than:
(a) Investments by the Company or a Restricted Subsidiary in
and to Restricted Subsidiaries, including any Investment in a Person
which, after giving effect to such Investment, will become a Restricted
Subsidiary;
(b) Investments in property or assets to be used in the usual
and ordinary course of business of the Company or its Restricted
Subsidiaries; provided that, after
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giving effect to any such Investment, the Company remains in compliance
with ss.5.5 hereof;
(c) Investments in commercial paper maturing in 270 days or
less from the date of issuance which, at the time of acquisition by the
Company or any Restricted Subsidiary, is accorded the highest rating by
Standard & Poor's Rating Group, a division of The McGraw-Hill
Companies, Inc., Moody's Investors Service, Inc. or another credit
rating agency of recognized national standing;
(d) Investments in direct obligations of the federal
governments of the United States of America, Canada or England and
Wales or any direct agency or instrumentality of any thereof, the
payment or guarantee of which constitutes a full faith and credit
obligation of the federal governments of the United States of America,
Canada or England and Wales or any direct agency or instrumentality of
any thereof, as the case may be, in each case, maturing in twelve
months or less from the date of acquisition thereof;
(e) Term Federal funds and banker's acceptances maturing
within 180 days from the date of acquisition thereof and issued by a
bank organized under the laws of the United States, Canada, or England
and Wales, having capital, surplus and undivided profits aggregating at
least U.S. $l00,000,000; provided that the issuing institution has a
rating of A- or better by Keefe Bank Watch Service;
(f) Investments in certificates of deposit maturing within one
year from the date of acquisition thereof, issued by a bank or trust
company organized under the laws of the United States, having capital,
surplus and undivided profits aggregating at least $100,000,000 and
whose long-term certificates of deposit are, at the time of acquisition
thereof by the Company or a Restricted Subsidiary, rated A or better by
Standard & Poor's Rating Group, a division of The McGraw-Hill
Companies, Inc. or by Moody's Investors Service, Inc.;
(g) loans or advances in the usual and ordinary course of
business to officers, directors, and employees incidental to carrying
on the business of the Company or any Restricted Subsidiary;
(h) receivables arising from the sale of goods and services in
the ordinary course of business of the Company and its Restricted
Subsidiaries; and
(i) other Investments (in addition to those permitted by the
foregoing provisions of this ss.5.12); provided that (1) all such other
Investments shall not exceed in the aggregate 25% of Consolidated
Tangible Net Worth Available for Investments and (2) after giving
effect to such other Investments, no Default or Event of Default would
exist.
In valuing any Investments for the purpose of applying the limitations
set forth in this ss.5.12, such Investments shall be taken at the original cost
thereof, without allowance for any
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subsequent write-offs or appreciation or depreciation therein, but less any
amount repaid or recovered on account of capital or principal.
For purposes of this ss.5.12, at any time when a Person becomes a
Restricted Subsidiary, all Investments of such Person at such time shall be
deemed to have been made by such Person, as a Restricted Subsidiary, at such
time.
Section 5.13. Repurchase of Notes. Neither the Company nor any
Subsidiary or Affiliate, directly or indirectly, may repurchase or make any
offer to repurchase any Notes unless the offer has been made in writing to
repurchase Notes, pro rata, from all holders of the Notes at the same time and
upon the same terms. In case the Company or any Subsidiary repurchases any
Notes, such Notes shall thereafter be canceled and no Notes shall be issued in
substitution therefor.
Section 5.14. Transactions with Affiliates. The Company will not, and
will not permit any Restricted Subsidiary to, enter into or be a party to any
material transaction or arrangement with any Affiliate (including, without
limitation, the purchase from, sale to or exchange of property with, or the
rendering of any service by or for, any Affiliate), except transactions
reasonably deemed by the Company in good faith to be in the best business
interests of the Company or the concerned Restricted Subsidiary and upon fair
and reasonable terms no less favorable to the Company or such Restricted
Subsidiary than would obtain in a comparable arm's-length transaction with a
Person other than an Affiliate.
Section 5.15. ERISA Compliance. The Company will not, and will not
permit any Subsidiary to:
(a) permit any Plans at any time maintained by the Company or
any such Subsidiary to have any Unfunded Vested Pension Liabilities in
excess of $1,000,000 in the aggregate. As used herein, "Unfunded Vested
Pension Liability" shall mean an excess of the actuarial present value
of accumulated vested Plan benefits as at the end of the immediately
preceding Plan year of such Plans (or as of any more recent valuation
date) over the net assets allocated to such Plans which are available
for benefits, all as determined and disclosed in the most recent
actuarial valuation report for such Plans;
(b) cause any Plan which it or any Subsidiary maintains or in
which it or any Subsidiary participates at any time to:
(1) engage in any "prohibited transaction" (as such
term is defined in ERISA);
(2) incur any "accumulated funding deficiency" (as
such term is defined in ERISA) whether or not waived; or
(3) terminate any such Plan in a manner which could
result in the imposition of a lien on any property of the
Company or any of its Subsidiaries pursuant to ERISA;
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(c) permit any condition to exist in connection with any Plan
which might constitute grounds for the PBGC to institute proceedings to
have such Plan terminated or a trustee appointed to administer such
Plan; or
(d) withdraw from any Multiemployer Plan if such withdrawal
shall subject the Company or any Subsidiary to withdrawal liability (as
described under Part 1 of Subtitle E of Title IV of ERISA) in excess of
$100,000.
All assumptions and methods used to determine the actuarial valuation
of vested employee benefits under any Plan at any time maintained by the Company
or any Subsidiary and the present value of assets of such Plans shall be
reasonable in the good faith judgment of the Company and shall comply with all
requirements of law.
Section 5.16. Reports and Rights of Inspection. The Company will keep,
and will cause each Restricted Subsidiary to keep, proper books of record and
account in which full and correct entries will be made of all dealings or
transactions of or in relation to its business and affairs, in accordance with
relevant accounting principles consistently applied and in the case of the
Company and any Domestic Restricted Subsidiaries in accordance with GAAP (except
for changes disclosed in the financial statements furnished to the Holders
pursuant to this ss.5.16 and concurred in by the independent public accountants
referred to in ss.5.16(b)), and will furnish to each Institutional Holder of the
outstanding Notes (in duplicate if so specified below or otherwise requested)
and, in the case of the financial statements delivered pursuant to paragraph (b)
of this ss.5.16, to the Securities Valuation Office, National Association of
Insurance Commissioners, 67 Wall Street, New York, New York 10005:
(a) Quarterly Statements. As soon as available and in any
event within 45 days after the end of each quarterly fiscal period
(except the last) of each fiscal year, duplicate copies of:
(1) a consolidated balance sheet of the Company and
its Restricted Subsidiaries as of the close of such quarterly
period, setting forth in comparative form the consolidated
figures for the corresponding period for the preceding fiscal
year,
(2) a consolidated statement of income of the Company
and its Restricted Subsidiaries for such quarterly fiscal
period and for the portion of the fiscal year ending with such
quarterly fiscal period, in each case setting forth in
comparative form the consolidated figures for the
corresponding periods of the preceding fiscal year, and
(3) a consolidated statement of cash flows of the
Company and its Restricted Subsidiaries for the portion of the
fiscal year ending with such quarterly fiscal period, setting
forth in comparative form the consolidated figures for the
corresponding period of the preceding fiscal year, all in
reasonable detail and certified as complete and correct by an
authorized financial officer of the Company;
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(b) Annual Statements. As soon as available and in any event
within 90 days after the close of each fiscal year of the Company,
duplicate copies of:
(1) consolidated balance sheets of the Company and
its Restricted Subsidiaries as of the close of such fiscal
year, and
(2) consolidated statements of income and retained
earnings and cash flows of the Company and its Restricted
Subsidiaries for such fiscal year,
in each case setting forth in comparative form the consolidated figures
for the preceding fiscal year, all in reasonable detail and accompanied
by an opinion thereon of a firm of independent public accountants of
recognized national standing selected by the Company, unqualified as to
scope, to the effect that the consolidated financial statements present
fairly, in all material respects, the consolidated financial position
of the Company and its Restricted Subsidiaries as of the end of the
fiscal year being reported on and the consolidated results of the
operations and cash flows for said year in conformity with GAAP and
that the examination of such accountants in connection with such
financial statements has been conducted in accordance with generally
accepted auditing standards and included such tests of the accounting
records and such other auditing procedures as were considered necessary
in the circumstances;
(c) Audit Reports. Promptly upon initiation thereof, written
notice of each interim or special audit to be made by independent
accountants of the books of the Company or any Restricted Subsidiary
and any management letter to be delivered from such accountants in
connection therewith;
(d) SEC and Other Reports. Promptly (and in any event within
30 days) upon their becoming available, one copy of each financial
statement, report, notice, press release or proxy statement sent by the
Company to stockholders generally or made available to the public and
one copy of each regular or periodic report, registration statement or
prospectus filed by the Company or any Restricted Subsidiary with any
securities exchange or the Securities and Exchange Commission or any
successor agency, and, if the Purchaser or any such Institutional
Holder so requests, one copy of any material order in any proceedings
to which the Company or any of its Restricted Subsidiaries is a party,
issued by any governmental agency, Federal or state, having
jurisdiction over the Company or any of its Restricted Subsidiaries;
(e) Officers' Certificates. Within the periods provided in
paragraphs (a) and (b) above, a certificate of an authorized financial
officer of the Company stating that such officer has reviewed the
provisions of this Agreement and setting forth: (1) the information and
computations (in sufficient detail) required in order to establish
whether the Company was in compliance with the applicable requirements
of ss.ss.5.6 through 5.12 hereof at the end of the period covered by
the financial statements then being furnished and (2) whether, to the
best of his knowledge based on such review, there existed as of the
date of such financial statements or there exists on the date of the
certificate or existed at any time during the period covered by such
financial statements any Default or Event
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of Default and, if any such condition or event exists on the date of
the certificate or existed during such period, specifying the nature
and extent thereof and the action the Company is taking, has taken or
proposes to take with respect thereto; provided further, that such
certificates as are delivered with respect to (i) the period provided
for in paragraph (b) above, shall include a list of any changes in
Restricted Subsidiaries as at the end of such period, and (ii) the
periods provided for in paragraphs (a) and (b) above shall set forth
for each Restricted Subsidiary, the amount of Indebtedness of such
Restricted Subsidiary outstanding at the end of such period together
with a brief description of such Indebtedness;
(f) Accountants' Certificates. Within the period provided in
paragraph (b) above, a certificate of the accountants who are reporting
upon such financial statements, stating that they have reviewed this
Agreement and, stating further, whether in making their audit such
accountants (1) have not become aware that the Company and the
Restricted Subsidiaries have failed to comply with the terms,
covenants, provisions, or conditions contained in ss.5 hereof and (2)
have examined the schedules to such reports or other certificates or
documents containing calculations of the financial covenants required
to be performed or observed pursuant to ss.ss.5.6 through 5.12 hereof,
and in their opinion, the information set forth in such schedules or
other certificates or documents is fairly stated in all material
respects in relation to the annual consolidated financial statements
taken as a whole;
(g) ERISA Notices. Promptly upon learning of the occurrence of
any of the following, written notice thereof, describing the same and
the steps being taken by the Company or any Subsidiary affected with
respect thereto, and when known, any action taken or threatened by the
Internal Revenue Service, Department of Labor or the PBGC with respect
thereto: (1) a Reportable Event with respect to any Plan; (2) the
institution of any steps by the Company, any ERISA Affiliate, the PBGC
or any other person to terminate any Plan other than a "standard
termination" under Section 4041(b) of ERISA; (3) the institution of any
steps by the Company or any ERISA Affiliate to withdraw from any
Multiemployer Plan; (4) a "prohibited transaction" within the meaning
of Section 406 of ERISA in connection with any Plan; or (5) any
material increase in the contingent liability of the Company or any
subsidiary with respect to any post-retirement welfare liability; and
(h) Requested Information. With reasonable promptness, such
other data and information as any Purchaser or any such Institutional
Holder may reasonably request, including, without limitation, such
financial or other information as any holder of the Notes or any Person
designated by such holder may reasonably determine as required to
permit such holder to comply with requirements of Rule 144A promulgated
under the Act in connection with the resale by it of the Notes.
Without limiting the foregoing, the Company will permit any Purchaser, so long
as such Purchaser is the holder of a Note, and each Institutional Holder of the
then outstanding Notes (or such agent(s) as either such Purchaser or such
Institutional Holder may designate) to visit and inspect, under the Company's
guidance, any of the properties of the Company or any Restricted
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Subsidiary, and to examine all of their books of account, records, reports and
other papers, to make copies and extracts therefrom, and to discuss their
respective affairs, finances and accounts with their respective officers,
employees, and independent public accountants (and by this provision the Company
authorizes such accountants to discuss with such Purchaser the finances and
affairs of the Company and its Restricted Subsidiaries) all at such reasonable
times and as often as may be reasonably requested. The Company shall be required
to pay or reimburse any such Purchaser or any such Institutional Holder for
reasonable expenses which such Purchaser or any such Institutional Holder may
incur in connection with any such visitation or inspection occurring at such
time as any Event of Default shall have occurred and be continuing.
All information which is furnished to or obtained by any holder of
Notes pursuant to this ss.5.16 or otherwise pursuant to this Agreement shall, if
so requested in writing by the Company, be received and held in confidence
unless or until the same has been publicly disclosed by the Company; provided,
however, nothing herein contained shall limit or impair the right or obligation
of any Institutional Holder of the Notes to disclose such information: (a) to
its auditors, trustees, advisors, attorneys, employees or agents, (b) when
required by any law, ordinance or governmental order, regulation, rule, policy,
investigation or any regulatory authority request, (c) as may be required or
appropriate in any report, statement or testimony submitted to any municipal,
state, provincial or Federal regulatory body having or claiming to have
jurisdiction over such Institutional Holder or to the United States National
Association of Insurance Commissioners or similar organizations or their
successors, (d) which is publicly available or readily ascertainable from public
sources, or which is received by any Institutional Holder of the Notes from a
third Person who or which is not bound to keep the same confidential, (e) in
connection with any proceeding, case or matter pending (or on its face purported
to be pending) before any court, tribunal, arbitration board or any governmental
agency, commission, authority, board or similar entity, (f) in connection with
the enforcement by an Institutional Holder of its rights under or in respect of
this Agreement or the Notes after the occurrence of a Default or Event of
Default, or (g) to the extent necessary in connection with any contemplated
transfer of any of the Notes by an Institutional Holder thereof (it being
understood and agreed that any such transferee which purchases such Notes shall
itself be bound by the terms and provisions hereof.)
Section 5.17. Subsidiary Guaranty. The Company will cause each
Subsidiary which is, or becomes, a guarantor of Indebtedness under the Bank
Credit Agreement (excluding any Foreign Subsidiary which borrows amounts
denominated in its local currency (and Guaranties of such borrowings by other
Foreign Subsidiaries))to be a party to the Subsidiary Guaranty. In the case of
any such Subsidiary which becomes a guarantor under the Bank Credit Agreement
after the Closing Date, concurrently with such Subsidiary becoming a guarantor
under the Bank Credit Agreement, the Company will deliver to each holder of the
Notes the following items:
(i) a joinder agreement in respect of the Subsidiary Guaranty
which shall have been duly executed by such Subsidiary;
(ii) a certificate signed by the President, a Vice President
or Treasurer of the Company making representations and warranties to
the effect of those contained in
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Paragraphs 10 and 12 of Exhibit B, with respect to such Subsidiary and
the Subsidiary Guaranty, as applicable; and
(iii) an opinion of counsel (who may be in-house counsel for
the Company) addressed to each of the holders of the Notes satisfactory
to the holders of a majority in principal amount of the Notes
outstanding at the time, to the effect that the joinder to the
Subsidiary Guaranty has been duly authorized, executed and delivered by
such Subsidiary and that the Subsidiary Guaranty constitutes the legal,
valid and binding contract and agreement of such Subsidiary Guarantor
enforceable in accordance with its terms, except as an enforcement of
such terms may be limited by bankruptcy, insolvency, fraudulent
conveyance and similar laws affecting the enforcement of creditors'
rights generally and by general equitable principles.
Section 5.18. Restrictions on Subsidiaries. The Company will not, and
will not permit any Restricted Subsidiary to, agree to or otherwise permit to
exist any contractual limitation on the payment of dividends or other
distributions to the Company.
SECTION 6. EVENTS OF DEFAULT AND REMEDIES THEREFOR.
Section 6.1. Events of Default. Any one or more of the following shall
constitute an "Event of Default" as the term is used herein:
(a) Default shall occur in the payment of interest on any Note
when the same shall have become due and such default shall continue for
more than five days; or
(b) Default shall occur in the making of any required
prepayment on any of the Notes as provided inss.2; or
(c) Default shall occur in the making of any other payment of
the principal of any Note or the premium thereon at the expressed or
any accelerated maturity date or at any date fixed for prepayment; or
(d) Default shall be made in the payment of the principal of
or interest on Indebtedness for borrowed money of the Company or any
Restricted Subsidiary (other than the Notes) aggregating more than
$3,000,000 as and when the same shall become due and payable by the
lapse of time, by declaration, by call for redemption or otherwise, and
such default shall continue beyond the period of grace, if any, allowed
with respect thereto; or
(e) Default or the happening of any event shall occur under
any indentures, agreements or other instruments (other than the
Agreement) under which any Indebtedness for borrowed money of the
Company or any Restricted Subsidiary aggregating more than $3,000,000
may be issued and such defaults or events shall continue for a period
of time sufficient to permit the acceleration of the maturity of such
Indebtedness of the Company or such Restricted Subsidiaries, as the
case may be, outstanding thereunder; or
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(f) Default shall occur in the observance or performance of
any covenant or agreement contained inss.5.6 throughss.5.12 hereof; or
(g) Default shall occur in the observance or performance of
any other provision of this Agreement which is not remedied or waived
within 30 days after the chief executive officer or the chief operating
officer or the chief financial officer of the Company first has actual
knowledge of such default; or
(h) if any representation or warranty made by the Company
herein, or made by the Company in any statement or certificate
furnished by the Company or any Subsidiary in connection with the
consummation of the issuance and delivery of the Notes or furnished by
the Company or any Subsidiary pursuant hereto, is untrue in any
material respect as of the date of the issuance or making thereof; or
(i) the Subsidiary Guaranty ceases to be in full force and
effect or any Subsidiary Guarantor shall contest or deny in writing the
validity or enforceability of any of its obligations under the
Subsidiary Guaranty; or
(j) final judgment or judgments for the payment of money
aggregating in excess of $1,000,000 is or are outstanding against the
Company or any Restricted Subsidiary or against any property or assets
of either and any one of such judgments has remained unpaid, unvacated,
unbonded or unstayed by appeal or otherwise for a period of 60 days
from the date of its entry; provided, however, that the existence of
such judgment or judgments shall not constitute an Event of Default if
(1) the aggregate amount of such judgment or judgments shall be fully
covered by insurance issued by financially sound and reputable insurers
and (2) within such 60 day period, the Company shall have caused such
insurers to provide the holders of the Notes with written confirmation
that such coverage (i) equals or exceeds the amount of such judgment or
judgments and (ii) is not being contested as to amount or coverage by
such insurers; or
(k) a custodian, receiver, liquidator or trustee of the
Company or any Principal Subsidiary, or of any of the property of
either, is appointed or takes possession and such appointment or
possession remains uncontested or in effect for more than 60 days; or
the Company or any Principal Subsidiary generally fails to pay its
debts as they become due or admits in writing its inability to pay its
debts as they mature; or the Company or any Principal Subsidiary is
adjudicated bankrupt or insolvent; or an order for relief is entered
under the Federal Bankruptcy Code against the Company or any Principal
Subsidiary; or any of the material property of either is sequestered by
court order and the order remains in effect for more than 60 days; or a
petition is filed against the Company or any Principal Subsidiary under
any bankruptcy, reorganization, arrangement, insolvency, readjustment
of debt, dissolution or liquidation law of any jurisdiction, whether
now or subsequently in effect, and is not stayed or dismissed within 60
days after filing; or
(l) the Company or any Principal Subsidiary files a petition
in voluntary bankruptcy or seeking relief under any provision of any
bankruptcy, reorganization, arrangement, insolvency, readjustment of
debt, dissolution or liquidation law of any
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jurisdiction, whether now or subsequently in effect; or consents to the
filing of any petition against it under any such law; or consents to
the appointment of or taking possession by a custodian, receiver,
trustee or liquidator of the Company, any Principal Subsidiary, or any
of the property of either.
Section 6.2. Notice to Holders. When any Event of Default described in
ss.6.1 has occurred, or if the holder of any Note or of any other evidence of
Indebtedness of the Company gives any notice or takes any other action with
respect to a claimed default, the Company agrees to give notice within three
business days of such event to all holders of the Notes then outstanding.
Section 6.3. Acceleration of Maturities. When any Event of Default
described in paragraph (a), (b) or (c) of ss.6.1 has happened and is continuing,
any holder of any Note may, and when any Event of Default described in
paragraphs (d) through (j), inclusive, of ss.6.1 has happened and is continuing,
the holder or holders of 70% or more of the principal amount of Notes at the
time outstanding may, in addition to any other rights and remedies available at
law or in equity, by notice in writing sent in the manner provided in ss.9.6
hereof to the Company, declare the entire principal and all interest accrued on
all Notes to be, and all Notes shall thereupon become, forthwith due and
payable, without any presentment, demand, protest or other notice of any kind,
all of which are hereby expressly waived. When any Event of Default described in
paragraph (k) or (l) of ss.6.1 has occurred, then all outstanding Notes shall
immediately become due and payable without presentment, demand or notice of any
kind. Upon the Notes becoming due and payable as a result of any Event of
Default as aforesaid, the Company will forthwith pay to the holders of the Notes
the entire principal and interest accrued on the Notes plus, to the extent not
prohibited by law, an amount as liquidated damages for the loss of the bargain
evidenced hereby (and not as a penalty) equal to the applicable Make-Whole
Amount determined as of the date on which the Notes shall so become due and
payable. No course of dealing on the part of any holder of the Notes nor any
delay or failure on the part of any holder of the Notes to exercise any right
shall operate as a waiver of such right or otherwise prejudice such holder's
rights, powers and remedies. The Company further agrees, to the extent permitted
by law, to pay to the holder or holders of the Notes all reasonable costs and
expenses incurred by them in the collection of any Notes upon any default
hereunder or thereon, including reasonable compensation to such holder's or
holders' attorneys for all services rendered in connection therewith.
Section 6.4. Rescission of Acceleration. The provisions of ss.6.3 are
subject to the condition that if the principal of and accrued interest on all or
any outstanding Notes have been declared immediately due and payable by reason
of the occurrence of any Event of Default described in paragraphs (a) through
(k), inclusive, of ss.6.1, the holders of not less than 75% in aggregate
principal amount of the Notes then outstanding may, by written instrument filed
with the Company, rescind and annul such declaration and the consequences
thereof; provided that at the time such declaration is annulled and rescinded:
(a) no judgment or decree has been entered for the payment of
any monies due pursuant to the Notes or the Agreement;
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(b) all arrears of interest on all the Notes and all other
sums payable under the Notes and under the Agreement (except any
principal, interest or premium on the Notes which has become due and
payable solely by reason of such declaration under ss.6.3) shall have
been duly paid; and
(c) each and every other Default and Event of Default shall
have been made good, cured or waived pursuant toss.7.1;
and provided further that no such rescission and annulment shall extend to or
affect any subsequent Default or Event of Default or impair any right consequent
thereto.
SECTION 7. AMENDMENTS, WAIVERS AND CONSENTS
Section 7.1. Consent Required. Any term, covenant, agreement or
condition of this Agreement may, with the consent of the Company, be amended or
compliance therewith may be waived (either generally or in a particular instance
and either retroactively or prospectively), if the Company shall have obtained
the consent in writing of the holders of at least 70% in aggregate principal
amount of outstanding Notes; provided that without the written consent of the
holders of all of the Notes then outstanding, no such amendment or waiver shall
be effective (a) which will change the time of payment (including any prepayment
required by ss.2.1) of the principal of or the interest on any Note or reduce
the principal amount thereof or change the rate of interest thereon, or (b)
which will change any of the provisions with respect to optional prepayments, or
(c) which will change the percentage of holders of the Notes required to consent
to any such amendment or waiver of any of the provisions of this ss.7 or ss.6.
Section 7.2. Effect of Amendment or Waiver. Any such amendment or
waiver shall apply equally to all of the holders of the Notes and shall be
binding upon them, upon each future holder of any Note and upon the Company,
whether or not such Note shall have been marked to indicate such amendment or
waiver. No such amendment or waiver shall extend to or affect any obligation not
expressly amended or waived or impair any right consequent thereon.
Section 7.3. Solicitation of Holders. The Company will not solicit,
request or negotiate for or with respect to any proposed waiver or amendment of
any of the provisions of the Agreement or the Notes unless each holder of the
Notes shall be informed thereof by the Company and shall be afforded the
opportunity of considering the same and shall be supplied by the Company with
sufficient information to enable it to make an informed decision with respect
thereto. Executed or true and correct copies of any waiver or amendment effected
pursuant to the provisions of ss.7.1 shall be delivered by the Company to each
registered holder of outstanding Notes following the date on which the same
shall have been executed and delivered by the holder or holders of the requisite
percentage of outstanding Notes. The Company will not, directly or indirectly,
pay or cause to be paid any remuneration, whether by way of supplemental or
additional interest, fee or otherwise, to any holder of the Notes as
consideration for or as an inducement to the entering into by any holder of the
Notes of any waiver or amendment of any of the terms and provisions of this
Agreement unless such remuneration is concurrently paid, on the same terms,
ratably to the holders of all the Notes then outstanding.
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SECTION 8. INTERPRETATION OF AGREEMENT; DEFINITIONS
Section 8.1. Definitions. Unless the context otherwise requires, the
terms hereinafter set forth when used herein shall have the following meanings
and the following definitions shall be equally applicable to both the singular
and plural forms of any of the terms herein defined:
"Act" shall mean the Securities Act of 1933, as amended from time to
time.
"Affiliate" shall mean any Person (other than a Restricted Subsidiary)
(a) which directly or indirectly through one or more intermediaries controls, or
is controlled by, or is under common control with, the Company, (b) which
beneficially owns or holds 5% or more of any class of the Voting Stock of the
Company or (c) 5% or more of the Voting Stock (or in the case of a Person which
is not a corporation, 5% or more of the equity interest) of which is
beneficially owned or held by the Company or a Subsidiary. The term "control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a Person, whether through the
ownership of Voting Stock, by contract or otherwise.
"Agreement" shall mean this Note Agreement.
"Bank Credit Agreement" means that certain Three Year Revolving Credit
Agreement dated as of August 31, 2001, by and among the Company, and the
financial institutions named therein, as amended, supplemented, renewed or
restated and any replacement facility which constitutes the primary bank credit
facility of the Company.
"Capitalized Lease" shall mean any lease the obligation for Rentals
with respect to which is required to be capitalized on a balance sheet of the
lessee in accordance with GAAP.
"Capitalized Rentals" of any Person shall mean as of the date of any
determination the amount at which the aggregate Rentals due and to become due
under all Capitalized Leases under which such Person is a lessee would be
reflected as a liability on a consolidated balance sheet of such Person and its
subsidiaries prepared in accordance with GAAP.
"Company" shall mean Johnson Outdoors Inc., a Wisconsin corporation,
and any Person who succeeds to all, or substantially all, of the assets and
business of Johnson Outdoors Inc.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and the rules and regulations promulgated thereunder from time to time.
"Consolidated Current Debt" shall mean, without duplication, Current
Debt of the Company and its Restricted Subsidiaries determined on a consolidated
basis eliminating intercompany items.
"Consolidated Funded Debt" shall mean, without duplication, Funded Debt
of the Company and its Restricted Subsidiaries determined on a consolidated
basis eliminating intercompany items.
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"Consolidated Net Income" for any period shall mean net income of the
Company, and its Restricted Subsidiaries from continuing operations determined
on a consolidated basis in accordance with GAAP consistently applied, and
excluding net earnings and losses of any Person (other than a Restricted
Subsidiary) with which the Company or a Restricted Subsidiary shall have
consolidated or which shall have merged or liquidated into or with the Company
or a Restricted Subsidiary prior to the date of such consolidation, merger or
liquidation.
"Consolidated Net Worth" shall mean as of the date of any determination
thereof the amount of the par or stated value of all outstanding capital stock,
capital surplus, and retained earnings of the Company and its Restricted
Subsidiaries, net of all cumulative translation adjustments and contingent
compensation adjustments determined on a consolidated basis in accordance with
GAAP.
"Consolidated Tangible Assets" shall mean as of the date of any
determination thereof the total amount of all Tangible Assets of the Company and
its Restricted Subsidiaries on a consolidated basis after deducting therefrom
all Investments incurred pursuant to and within the limitations of ss.5.12(i).
"Consolidated Tangible Net Worth" shall mean as of the date of any
determination thereof Consolidated Net Worth less (a) all assets of the Company
and its Restricted Subsidiaries that are properly classified as "intangible
assets" all determined in accordance with GAAP and (b) all Investments incurred
pursuant to and within the limitations of ss.5.12(i).
"Consolidated Tangible Net Worth Available for Investments" shall mean
as of the date of any determination thereof the sum of (a) Consolidated Tangible
Net Worth and (b) all Investments incurred pursuant to and within the
limitations of ss.5.12(i) hereof.
"Consolidated Total Assets" of the Company and its Restricted
Subsidiaries shall mean as of the date of any determination thereof the total
assets of the Company and its Restricted Subsidiaries as of such date determined
on a consolidated basis in accordance with GAAP.
"Consolidated Total Capitalization" shall mean as of the date of any
determination thereof the sum of (a) Consolidated Net Worth and (b) Consolidated
Funded Debt.
"Current Debt" of any Person shall mean as of the date of any
determination thereof (a) all Indebtedness for borrowed money or which has been
incurred in connection with the acquisition of property or assets other than
Funded Debt, provided that any portion of such obligations incurred in
connection with the acquisition of property or assets specifically including,
without limitation, obligations which have been incurred by such Person in
connection with any sale, transfer or issuance of stock pursuant to and in
compliance with ss.5.8(c)(5) and which are at the date of any determination of
Current Debt contingent as to amount or as to payment shall not be treated as
Current Debt on such date, (b) Guaranties of Current Debt of others and (c) all
obligations of such Person with respect to receivables sold or otherwise
discounted with recourse which would not constitute Funded Debt pursuant to the
terms of the definition thereof.
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"Default" shall mean any event or condition the occurrence of which
would, with the lapse of time or the giving of notice, or both, constitute an
Event of Default.
"Domestic Restricted Subsidiary" shall mean any Restricted Subsidiary
(a) which is organized under the laws of the United States or any State thereof
and (b) which conducts substantially all of its business and has substantially
all of its assets within the United States.
"Eighty Percent-Owned Restricted Subsidiary" shall mean a Subsidiary of
which 80% or more (by number of votes) of the Voting Stock shall be beneficially
owned, directly or indirectly, by the Company.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended, and any successor statute of similar import, together with the
regulations thereunder, in each case as in effect from time to time. References
to sections of ERISA shall be construed to also refer to any successor sections.
"ERISA Affiliate" shall mean any corporation, trade or business that
is, along with the Company, a member of a controlled group of corporations or a
controlled group of trades or businesses, as described in Section 414(b) and
414(c), respectively, of the Code or Section 4001 of ERISA.
"Excluded Subsidiary Obligations" shall mean (a) the Subsidiary
Guaranty and any other Guaranty of Indebtedness of the Company or another
Restricted Subsidiary by a Subsidiary Guarantor, and (b) obligations of a
Subsidiary Guarantor as co-obligor with the Company or another Restricted
Subsidiary on Indebtedness under note agreements, loan agreements or credit
agreements (other than the Bank Credit Agreement); provided that each creditor
which is the beneficiary of any such Guaranty or which is a party to any such
note agreement, loan agreement or credit agreement (or an agent acting on its
behalf) shall have become a party to the Intercreditor Agreement.
"Event of Default" is defined in ss.6.1.
"Fixed Charges" for any period shall mean on a consolidated basis the
sum of (i) all Rentals (other than Rentals on Capitalized Leases) payable during
such period by the Company and its Restricted Subsidiaries, and (ii) all
Interest Charges on all Indebtedness (including the interest component of
Rentals on Capitalized Leases) of the Company and its Restricted Subsidiaries.
"Fixed Charge Coverage Ratio" shall mean the ratio of (i) Net Income
Available for Fixed Charges to (ii) Fixed Charges determined as of the end of
each fiscal quarter for the period consisting of the immediately preceding four
fiscal quarters (each such rolling four fiscal quarter period being treated as a
single accounting period).
"Foreign Subsidiary" means any Subsidiary of the Company organized
under the laws of a jurisdiction other than the United States or any
jurisdiction thereof.
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"Funded Debt" of any Person shall mean (a) all Indebtedness for or in
respect of borrowed money or which has been incurred in connection with the
acquisition of property or assets, in each case having a final maturity of more
than one year from the date of origin thereof (or which is renewable or
extendible at the option of the obligor for a period or periods of more than one
year from the date of origin), including all payments in respect thereof that
are required to be made within one year from the date of any determination of
Funded Debt, whether or not the obligation to make such payment shall constitute
a current liability of the obligor under GAAP, provided that any portion of such
obligations incurred in connection with the acquisition of property or assets
specifically including, without limitation, obligations which have been incurred
by such Person in connection with any sale, transfer or issuance of capital
stock pursuant to and in compliance with ss.5.8(c)(5) and which are at the date
of any determination of Funded Debt contingent as to amount or as to payment
shall not be treated as Funded Debt on such date, (b) all Capitalized Rentals,
(c) all Guaranties by such Person of Funded Debt of others and (d) all
obligations of such Person with respect to receivables sold or otherwise
discounted with recourse. For purposes of any determination of under this
Agreement, revolving credit Indebtedness under the Bank Credit Agreement shall
not be deemed to be Funded Debt except to the extent that such Indebtedness
shall be included in the Average Outstanding Balance of Consolidated Current
Debt determined in accordance with ss.5.6.
"GAAP" shall mean United States generally accepted accounting
principles as in effect from time to time. Notwithstanding the foregoing, in the
event that any Accounting Changes (as defined below) shall occur, all financial
covenants, standards and terms in this Agreement shall continue to be calculated
or construed as if such Accounting Changes had not occurred. "Accounting
Changes" means: changes in accounting principles required by the promulgation of
any rule, regulation, pronouncement or opinion by the Financial Accounting
Standards Board or the American Institute of Certified Public Accountants or, if
applicable, the Securities and Exchange Commission (or successors thereto or
agencies with similar functions).
"Guaranties" by any Person shall mean all obligations (other than
endorsements in the ordinary course of business of negotiable instruments for
deposit or collection) of such Person guaranteeing or in effect guaranteeing any
Indebtedness, dividend or other obligation, of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, including, without
limitation, all obligations incurred through an agreement, contingent or
otherwise, by such Person: (a) to purchase such Indebtedness or obligation or
any property or assets constituting security therefor, (b) to advance or supply
funds (1) for the purchase or payment of such Indebtedness or obligation, (2) to
maintain working capital or other balance sheet condition or otherwise to
advance or make available funds for the purchase or payment of such Indebtedness
or obligation, or (c) to lease property or to purchase Securities or other
property or services primarily for the purpose of assuring the owner of such
Indebtedness or obligation of the ability of the primary obligor to make payment
of the Indebtedness or obligation, or (d) otherwise to assure the owner of the
Indebtedness or obligation of the primary obligor against loss in respect
thereof. For the purposes of all computations made under this Agreement, a
Guaranty in respect of any Indebtedness for borrowed money shall be deemed to be
Indebtedness equal to the principal amount of such Indebtedness for borrowed
money which has been guaranteed, and a Guaranty in respect of any other
obligation or any dividend shall be deemed to be Indebtedness equal to the
maximum aggregate amount of such obligation or dividend.
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"Indebtedness" of any Person shall mean and include (a) obligations of
such Person for borrowed money or which have been incurred in connection with
the acquisition of property or assets (except for obligations under bona fide
employment, consulting, non-competition, lease and similar agreements), provided
that any portion of such obligations which have been incurred in connection with
the acquisition of property or assets specifically including, without
limitation, obligations which have been incurred by such Person in connection
with any sale, transfer or issuance of stock pursuant to and in compliance with
ss.5.8(c)(5) and which are at the date of any determination of Indebtedness
contingent as to amount or as to payment shall not be treated as Indebtedness on
such date, (b) obligations secured by any Lien upon property or assets owned by
such Person, even though such Person has not assumed or become liable for the
payment of such obligations, (c) obligations created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such Person, notwithstanding the fact that the rights and remedies
of the seller, lender or lessor under such agreement in the event of default are
limited to repossession or sale of property, (d) all Guaranties by such Person
of obligations of others of the character referred to in this definition, (e)
Capitalized Rentals, and (f) all obligations of such Person with respect to
receivables sold or otherwise discounted with recourse.
"Institutional Holder" shall mean any of the following Persons: (a) any
bank or any savings and loan association, savings institution, trust company or
other institution acting for its own account or in a fiduciary capacity, (b) any
insurance company, (c) any pension, retirement or profit sharing trust or fund
within the meaning of Title I of ERISA or for which any bank, trust company,
national banking association or investment adviser registered under the
Investment Advisers Act of 1940, as amended, is acting as trustee or agent, (d)
any investment company or business development company, as defined in the
Investment Company Act of 1940, as amended, (e) any broker or dealer registered
under the Securities Exchange Act of 1934, as amended, who is a member of a
national securities exchange or any investment adviser registered under the
Investment Adviser Act of 1940, as amended, (f) any government, any public
employees' pension or retirement system, or any other governmental agency
supervising the investment of public funds, (g) any other entity all of the
equity owners of which are Institutional Holders or (h) any other Person which
may be within the definition of "qualified institutional buyer" as such term is
used in Rule 144A, as from time to time in effect, promulgated under the Act.
"Intercreditor Agreement" is defined in Section 1.2.
"Interest Charges" for any period shall mean all interest and all
amortization of debt discount and expense on any particular Indebtedness for
which such calculations are being made.
"Investments" of any Person shall mean all investments, in cash or by
delivery of property made, directly or indirectly in any Person, whether by
acquisition of shares of capital stock, indebtedness or any other obligations or
Securities or by loan, advance, capital contributions or otherwise.
"Lien" shall mean any interest in property securing an obligation owed
to, or a claim by, a Person other than the owner of the property, whether such
interest is based on the common law,
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statute or contract, including, without limitation, the security interest
arising from a mortgage, encumbrance, pledge, conditional sale or trust receipt
or a lease, consignment or bailment for security purposes and including any
Capitalized Lease. The term "Lien" shall include reservations, exceptions,
encroachments, easements, rights-of-way, covenants, conditions, restrictions,
lease and other similar title exceptions and encumbrances affecting real
property. For the purpose of this Agreement, the Company or a Restricted
Subsidiary shall be deemed to be the owner of any property which it has acquired
or holds subject to a conditional sale agreement or other arrangement pursuant
to which title to the property has been retained by or vested in another Person
for security purposes.
"Make-Whole Amount" shall mean an amount equal to the excess, if any,
of the Discounted Value of the Remaining Scheduled Payments with respect to the
Called Principal of the Note, over the amount of such Called Principal, provided
that the Make-Whole Amount may in no event be less than zero. For the purposes
of determining the Make-Whole Amount, the following terms have the following
meanings:
"Called Principal" means, with respect to a Note, the
principal of the Note that is to be prepaid pursuant to ss.2.2 or 2.3
or has become or is declared to be immediately due and payable pursuant
to ss.6.3, as the context requires.
"Discounted Value" means, with respect to the Called Principal
of a Note, the amount obtained by discounting all Remaining Scheduled
Payments with respect to such Called Principal from their respective
scheduled due dates to the Settlement Date with respect to such Called
Principal, in accordance with accepted financial practice and at a
discount factor (applied on the same periodic basis as that on which
interest on the Note is payable) equal to the Reinvestment Yield with
respect to such Called Principal.
"Reinvestment Yield" means, with respect to the Called
Principal of a Note, 0.50% plus the yield to maturity implied by (i)
the yields reported, as of 10:00 A.M. (New York City time) on the
second Business Day preceding the Settlement Date with respect to such
Called Principal, on the display designated as "PX-1" on the Bloomberg
Financial Market Screen (or such other display as may replace "PX-1" on
the Bloomberg Financial Market Screen) for actively traded U.S.
Treasury securities having a maturity equal to the Remaining Average
Life of such Called Principal as of such Settlement Date, or (ii) if
such yields are not reported as of such time or the yields reported as
of such time are not ascertainable, the Treasury Constant Maturity
Series Yields reported, for the latest day for which such yields have
been so reported as of the second Business Day preceding the Settlement
Date with respect to such Called Principal, in Federal Reserve
Statistical Release H.15 (519) (or any comparable successor
publication) for actively traded U.S. Treasury securities having a
constant maturity equal to the Remaining Average Life of such Called
Principal as of such Settlement Date. Such implied yield will be
determined, if necessary, by (a) converting U.S. Treasury bill
quotations to bond-equivalent yields in accordance with accepted
financial practice and (b) interpolating linearly on a straight line
basis between (1) the actively traded U.S. Treasury security with the
maturity closest to and greater than the Remaining Average Life and (2)
the actively traded U.S. Treasury security with the maturity closest to
and less than the Remaining Average Life.
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"Remaining Average Life" means, with respect to any Called
Principal, the number of years (calculated to the nearest one-twelfth
year) obtained by dividing (i) such Called Principal into (ii) the sum
of the products obtained by multiplying (a) the principal component of
each Remaining Scheduled Payment with respect to such Called Principal
by (b) the number of years (calculated to the nearest one-twelfth year)
that will elapse between the Settlement Date with respect to such
Called Principal and the scheduled due date of such Remaining Scheduled
Payment.
"Remaining Scheduled Payments" means, with respect to the
Called Principal of a Note, all payments of such Called Principal and
interest thereon that would be due after the Settlement Date with
respect to such Called Principal if no payment of such Called Principal
were made prior to its scheduled due date, provided that if such
Settlement Date is not a date on which interest payments are due to be
made under the terms of the Note, then the amount of the next
succeeding scheduled interest payment will be reduced by the amount of
interest accrued to such Settlement Date and required to be paid on
such Settlement Date pursuant to ss.2.2 or 2.3 or 6.3.
"Settlement Date" means, with respect to the Called Principal
of a Note, the date on which such Called Principal is to be prepaid
pursuant to ss.2.2, 2.3 or has become or is declared to be immediately
due and payable pursuant to ss.6.2, as the context requires.
"Multiemployer Plan" shall have the meaning as in ERISA.
"Net Income Available for Fixed Charges" for any period shall mean the
sum of (i) Consolidated Net Income during such period plus (to the extent
deducted in determining Consolidated Net Income), (ii) all provisions for any
Federal, state or other income taxes made by the Company and its Restricted
Subsidiaries during such period, and (iii) Fixed Charges of the Company and its
Restricted Subsidiaries during such period.
"Overdue Rate" shall mean as of the date of any determination thereof
the lesser of (a) the maximum rate permitted by law and (b) 9.82% per annum.
"PBGC" shall mean the Pension Benefit Guaranty Corporation and any
entity succeeding to any or all of its functions under ERISA.
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, and a government or agency or political subdivision
thereof.
"Plan" shall mean a plan that is both a "pension plan," as such term is
defined in Section 3(2) of ERISA, and a "defined benefit pension plan" as
defined in Section 414(j) of the Internal Revenue Code of 1986 which is
established or maintained by the Company or any ERISA Affiliate or as to which
the Company or any ERISA Affiliate contributed or is a member or otherwise may
have any liability.
"Principal Subsidiary" shall mean any Restricted Subsidiary which had
(a) total assets, on a consolidating basis, as of the last day of the most
recently ended fiscal quarter of the
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Company, of an amount equal to or greater than 2% of Consolidated Total Assets
of the Company as of the last day of such fiscal quarter, or (b) net income, on
a consolidating basis, for the Company's most recent fiscal year, equal to or
greater than 2% of Consolidated Net Income of the Company for such year.
"Rentals" of any Person shall mean and include all fixed rents
(including as such all payments which the lessee is obligated to make to the
lessor on termination of the lease or surrender of the property) payable by such
Person, as lessee or sublessee under a lease of real or personal property, but
shall be exclusive of any amounts required to be paid by such Person (whether or
not designated as rents or additional rents) on account of maintenance, repairs,
insurance, taxes and similar charges. Fixed rents under any so-called
"percentage leases" shall be computed solely on the basis of the minimum rents,
if any, required to be paid by the lessee regardless of sales volume or gross
revenues.
"Reportable Event" shall have the same meaning as in ERISA.
"Restricted Subsidiary" shall mean any Subsidiary of which more than
50% (by number of votes) of the Voting Stock is beneficially owned, directly or
indirectly, by the Company.
"Security" shall have the same meaning as in Section 2(l) of the
Securities Act of 1933, as amended.
The term "subsidiary" shall mean, as to any particular parent
corporation, any corporation of which more than 50% (by number of votes) of the
Voting Stock shall be owned by such parent corporation and/or one or more
corporations which are themselves subsidiaries of such parent corporation. The
term "Subsidiary" shall mean a subsidiary of the Company.
"Subsidiary Guarantor" means each of the domestic Subsidiaries of the
Company on the date of this Agreement and each other Subsidiary of the Company
that subsequent to the date of this Agreement becomes a party to the Subsidiary
Guaranty in accordance with ss.5.17 of this Agreement.
"Subsidiary Guaranty" is defined in ss.1.2.
"Tangible Assets" of any Person shall mean, as of the date of any
determination thereof, the total amount of all assets of such Person (less
depreciation, depletion, and other properly deductible valuation reserves) after
deducting the following: good will, patents, trade names, trade marks,
copyrights, franchises, experimental expense, organization expense, unamortized
debt discount and expense, deferred charges, the excess of cost of shares
acquired over book value of related assets, any write up in the book value of
any asset resulting from a revaluation thereof subsequent to March 29, 1991
(except in connection with the acquisition of such assets) and such other assets
as are properly classified as "intangible assets" in accordance with GAAP.
"Voting Stock" shall mean Securities of any class or classes, the
holders of which are ordinarily, in the absence of contingencies, entitled to
elect a majority of the corporate directors (or Persons performing similar
functions).
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"Wholly-owned" when used in connection with any Subsidiary shall mean a
Subsidiary of which all of the issued and outstanding shares of stock (other
than directors' qualifying shares or shares owned by foreign domiciliaries as
required by law) shall be owned by the Company and/or one or more of its
Wholly-Owned Restricted Subsidiaries.
Section 8.2. Accounting Principles. Where the character or amount of
any asset or liability or item of income or expense is required to be determined
or any consolidation or other accounting computation is required to be made for
the purposes of this Agreement, the same shall be done in accordance with GAAP,
to the extent applicable, except where such principles are inconsistent with the
specific provisions of this Agreement.
Section 8.3. Directly or Indirectly. Where any provision in this
Agreement refers to action to be taken by any Person, or which such Person is
prohibited from taking, such provision shall be applicable whether the action in
question is taken directly or indirectly by such Person.
SECTION 9. MISCELLANEOUS.
Section 9.1. Registration of Notes. The Company shall cause to be kept
at its principal office a register for the registration and transfer of the
Notes (hereinafter called the "Note Register"), and the Company will register or
transfer or cause to be registered or transferred, as hereinafter provided any
Note issued pursuant to this Agreement.
The Person in whose name any registered Note shall be registered shall
be deemed and treated as the owner and holder thereof for all purposes of this
Agreement. Payment of or on account of the principal, premium, if any, and
interest on any registered Note shall be made to or upon the written order of
such registered holder.
Section 9.2. Exchange of Notes. At any time and from time to time, upon
not less than ten days' notice to that effect given by the holder of any Note
initially delivered or of any Note substituted therefor pursuant to ss.9.1, this
ss.9.2 or ss.9.3, and upon surrender of such Note at its office, the Company
will deliver in exchange therefor, without expense to the holder, except as set
forth below, Notes, in registered form, for the same aggregate principal amount
as the then unpaid principal amount of the Note so surrendered, in the
denomination of $3,000,000 or any multiple of $100,000 in excess thereof as such
holder shall specify, dated as of the date to which interest has been paid on
the Note so surrendered or, if such surrender is prior to the payment of any
interest thereon, then dated as of the date of issue, payable to such Person or
Persons, as may be designated by such holder, and otherwise of the same form and
tenor as the Notes so surrendered for exchange; provided that, notwithstanding
the foregoing, any Note issued on the Closing Date or any Note substituted
therefor in a denomination of less than $3,000,000 may be exchanged in whole by
any holder thereof.
Section 9.3. Loss, Theft, Etc. of Notes. Upon receipt of evidence
satisfactory to the Company of the loss, theft, mutilation or destruction of any
Note, and in the case of any such loss, theft or destruction upon delivery of a
bond or indemnity in such form and amount as shall be reasonably satisfactory to
the Company, or in the event of such mutilation upon surrender and cancellation
of the Note, the Company will make and deliver, without expense to the holder
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thereof, a new Note, of like tenor, in lieu of such lost, stolen, destroyed or
mutilated Note. If any Purchaser or any subsequent Institutional Holder is the
owner of any such lost, stolen or destroyed Note, then the affidavit of an
authorized officer of such owner, setting forth the fact of loss, theft or
destruction and of its ownership of the Note at the time of such loss, theft or
destruction, shall be accepted as satisfactory evidence thereof and no further
indemnity shall be required as a condition to the execution and delivery of a
new Note other than the written agreement of such owner to indemnify the
Company.
Section 9.4. Expenses, Stamp Tax Indemnity. Whether or not the
transactions herein contemplated shall be consummated, the Company agrees to pay
directly all reasonable costs and expenses in connection with the preparation,
execution and delivery of this Agreement and the transactions contemplated
hereby, including but not limited to all investment banking and similar fees,
the reasonable charges and disbursements of Chapman and Cutler, special counsel
to the Purchasers, duplicating and printing costs and charges for shipping the
Notes, adequately insured to such Purchaser's home office or at such other place
as such Purchaser may designate, and all reasonable out-of-pocket costs and
expenses relating to any amendments, waivers or consents pursuant to the
provisions hereof (whether or not the same are actually executed and delivered),
including, without limitation, any amendments, waivers or consents resulting
from any work-out, renegotiation or restructuring relating to the performance by
the Company of its obligations under this Agreement and the Notes. The Company
also agrees that it will pay and save such Purchaser harmless against any and
all liability with respect to obtaining a "private placement number" for the
Notes from Standard & Poor's Corporation in accordance with the requirements of
the National Association of Insurance Commissioners and with respect to stamp
and other taxes, if any, which may be payable or which may be determined to be
payable in connection with the execution and delivery of this Agreement or the
initial issuance of the Notes, whether or not any Notes are then outstanding.
The Company agrees to protect and indemnify each Purchaser against any liability
for any and all brokerage fees and commissions payable or claimed to be payable
to any Person in connection with the transactions contemplated by this
Agreement, other than any such fees or commissions claimed by any Person engaged
by such Purchaser. Each Purchaser hereby represents to the Company that no
broker or finder was employed or retained by it in connection with its purchase
of the Notes.
Section 9.5. Powers and Rights Not Waived; Remedies Cumulative. No
delay or failure on the part of the holder of any Note in the exercise of any
power or right shall operate as a waiver thereof; nor shall any single or
partial exercise of the same preclude any other or further exercise thereof, or
the exercise of any other power or right, and the rights and remedies of the
holder of any Note are cumulative to and are not exclusive of any rights or
remedies any such holder would otherwise have, and no waiver or consent, given
or extended pursuant to ss.7, shall extend to or affect any obligation or right
not expressly waived or consented to.
Section 9.6. Notices. All communications provided for hereunder shall
be in writing and, if to the Purchasers, delivered or mailed by overnight
courier or by facsimile communication, in each case addressed to each Purchaser
at such Purchaser's address appearing on Schedule I to this Agreement or such
other address as such Purchaser or the subsequent holder of any Note initially
issued to such Purchaser may designate to the Company in writing, and, if to the
Company, delivered or mailed by prepaid overnight courier or by facsimile
-38-
communication to the Company at the address specified on page 1 hereof,
Attention: Treasurer, or to such other address as the Company may in writing
designate to the Purchasers or to a subsequent holder of the Note initially
issued to the Purchasers; provided, however, that a notice to any Purchaser by
overnight courier shall only be effective if delivered to such Purchaser at a
street address designated for such purpose in Schedule I attached hereto, and a
notice to any Purchaser by facsimile communication shall only be effective if
confirmed by prepaid overnight courier, or, in either case, as such Purchaser or
a subsequent holder of any Note initially issued to such Purchaser may designate
to the Company in writing.
Section 9.7. Successors and Assigns. This Agreement shall be binding
upon the Company and its successors and assigns and shall inure to the benefit
of each Purchaser and to the benefit of its successors and assigns, including
each successive holder or holders of any Notes; provided, however, that
notwithstanding any other provisions of this Agreement or the Notes, the Notes
shall not be transferable to any Person that is not an Institutional Holder.
Section 9.8. Survival of Covenants and Representations. All covenants,
representations and warranties made by the Company herein and in any
certificates delivered pursuant hereto, whether or not in connection with the
Closing Date, shall survive the closing and the delivery of this Agreement and
the Notes.
Section 9.9. Severability. Should any part of this Agreement for any
reason be declared invalid by a court of competent jurisdiction, such decision
shall not affect the validity of any remaining portion, which remaining portion
shall remain in force and effect as if this Agreement had been executed with the
invalid portion thereof eliminated and it is hereby declared the intention of
the parties hereto that they would have executed the remaining portion of this
Agreement without including therein any such part which may, for any reason, be
declared invalid.
Section 9.10. Reproduction of Documents. This Agreement and all
documents relating thereto, including without limitation, (a) consents, waivers
and modifications which may hereafter be executed, (b) documents received by the
Purchasers at the closing of their respective purchases of the Notes (except the
Notes themselves), and (c) financial statements, certificates and other
information previously or hereafter furnished to the Purchasers, may be
reproduced by the Purchasers by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process and each such
Purchaser may destroy any original document so reproduced. The Company agrees
and stipulates that any such reproduction shall be admissible in evidence as the
original itself in any judicial or administrative proceeding (whether or not the
original is in existence and whether or not such reproduction was made by such
Purchaser in the regular course of business) and that any enlargement, facsimile
or further reproduction of such reproduction shall likewise be admissible in
evidence.
Section 9.11. Governing Law; Waiver of Jury Trial. (a) This Agreement
and the Notes issued and sold hereunder shall be governed by and construed in
accordance with Wisconsin law. Notwithstanding the preceding sentence, nothing
in this Agreement shall be construed to subject the holder of any Notes that is
an insurance company to the laws of the State of Wisconsin.
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(b) The Company and the Purchasers each hereby irrevocably and
unconditionally waive trial by jury.
Section 9.12. Captions. The descriptive headings of the various
Sections or parts of this Agreement are for convenience only and shall not
affect the meaning or construction of any of the provisions hereof.
-40-
The execution hereof by the Purchasers shall constitute a contract
between the Company and the Purchasers for the uses and purposes hereinabove set
forth, and this Agreement may be executed in any number of counterparts, each
executed counterpart constituting an original but all together only one
agreement.
JOHNSON OUTDOORS INC.
By: /s/ Wade T. Neuharth
-----------------------------------
Wade T. Neuharth
Its: Treasurer
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Accepted as of the first date written above.
JOHN HANCOCK LIFE INSURANCE COMPANY
By: /s/ Kathleen E. McDonough
-----------------------------------
Name: Kathleen E. McDonough
Its: Director
-42-
Accepted as of the first date written above.
JOHN HANCOCK VARIABLE LIFE INSURANCE
COMPANY
By: /s/ Kathleen E. McDonough
-----------------------------------
Name: Kathleen E. McDonough
Authorized Signatory
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Accepted as of the first date written above.
MELLON BANK, N.A., solely in its
capacity as Trustee for the Bell
Atlantic Master Trust (as directed
by John Hancock Life Insurance
Company), and not in its individual
capacity
By: /s/ Bernadette Rist
-----------------------------------
Name: Bernadette Rist
Authorized Signatory
THE DECISION TO PARTICIPATE IN THE INVESTMENT, ANY REPRESENTATIONS MADE HEREIN
BY THE PARTICIPANT, AND ANY ACTIONS TAKEN HEREUNDER BY THE PARTICIPANT HAS/HAVE
BEEN MADE SOLELY AT THE DIRECTION OF THE INVESTMENT FIDUCIARY WHO HAS SOLE
INVESTMENT DISCRETION WITH RESPECT TO THIS INVESTMENT.
-44-
Accepted as of the first date written above.
CLARICA LIFE INSURANCE COMPANY-U.S.
By: /s/ Constance L. Keller
-----------------------------------
Name: Constance L. Keller
Title: Executive Director,
Private Placements
-45-
Accepted as of the first date written above.
AMERICAN FAMILY LIFE INSURANCE COMPANY
By: /s/ Phillip Hannifan
-----------------------------------
Name: Phillip Hannifan
Title: Investment Director
-46-
Accepted as of the first date written above.
STATE OF WISCONSIN INVESTMENT BOARD
By: /s/ Monica A. Jaehnig
-----------------------------------
Name: Monica A. Jaehnig
Title: Porfolio Manager-Private
Placements
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EXHIBIT 21
JOHNSON OUTDOORS INC. AND SUBSIDIARIES
The following lists the principal direct and indirect subsidiaries of Johnson
Outdoors Inc. as of September 28, 2001. Inactive subsidiaries are not presented.
Jurisdiction in
Name of Subsidiary (1)(2) which Incorporated
- ------------------------- ------------------
Johnson Outdoors Canada Inc. Canada
Plastiques L.P.A. Limitee Canada
Old Town Canoe Company Delaware
Leisure Life Limited Michigan
Extrasport, Inc. Florida
Scubapro Scandinavia AB Sweden
Under Sea Industries, Inc. Delaware
JWA Holding B.V. Netherlands
Johnson Beteiligungsgesellschaft GmbH Germany
Jack Wolfskin Ausrustung fur Draussen GmbH Germany
Johnson Outdoors V GmbH Germany
Scubapro Taucherauser GmbH Germany
Uwatec AG Switzerland
Uwatec USA, Inc. Maine
Scubapro Asia Pacific Ltd. (3) Hong Kong
Uwatec Batam Indonesia
Uwaplast AG Switzerland
Scubapro Asia, Ltd. Japan
Scubapro Espana, S.A.(4) Spain
Scubapro Eu AG Switzerland
Scubapro Europe Benelux, S.A. Belgium
JWA France France
Scuba/Uwatec S.A. France
Scubapro Europe S.r.l. Italy
Scubapro Italy S.r.l. Italy
Scubapro (UK) Ltd.(5) United Kingdom
Scubapro-Uwatec Australia Pty. Ltd. Australia
Johnson Outdoors Watercraft UK United Kingdom
Johnson Outdoors Watercraft Ltd. New Zealand
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(1) Unless otherwise indicated in brackets, each company does business only
under its legal name.
(2) Unless otherwise indicated by footnote, each company is a wholly-owned
subsidiary of Johnson Outdoors Inc. (through direct or indirect
ownership).
(3) Percentage of stock owned is 60%.
(4) Percentage of stock owned is 98%.
(5) Percentage of stock owned is 99%.
Consent of Independent Public Accountants As independent public accountants, we hereby consent to the incorporation of our report included in this Form 10-K, into the Company's previously filed Registration Statements on Form S-8, File Nos. 33-19804, 33-19805, 33-35309, 33-50680, 33-52073, 33-54899, 33-59325, 33-61285, 333-88089 and 333-88091. /s/ ARTHUR ANDERSEN LLP ARTHUR ANDERSEN LLP Milwaukee, Wisconsin December 21, 2001
Consent of KPMG LLP Shareholders and Board of Directors Johnson Outdoors Inc.: We consent to incorporation by reference in the Registration Statements (Nos. 33-19804, 33-19805, 33-35309, 33-50680, 33-52073, 33-54899, 33-59325, 33-61285, 333-88089, and 333-88091) on Form S-8 of Johnson Outdoors Inc. of our report dated November 6, 2000, relating to the consolidated balance sheet of Johnson Outdoors Inc. and subsidiaries as of September 29, 2000 and the related consolidated statements of operations, shareholders' equity, and cash flows for each of the years in the two-year period ended September 29, 2000, which report appears in the 2001 Annual Report on Form 10-K of Johnson Outdoors Inc. /s/ KPMG LLP Milwaukee, Wisconsin December 21, 2001