General Statement of Beneficial Ownership — Schedule 13D
Filing Table of Contents
Document/Exhibit Description Pages Size
1: SC 13D General Statement of Beneficial Ownership HTML 60K
2: EX-5 Exchange Agreement, 9/30/02, Jean-Pierre Ergas 20 56K
3: EX-6 Exchange Agreement, 9/30/02, Warren J. Hayford 20 55K
4: EX-7 Exchange Agreement, 9/30/02, Mary Lou Hayford 19 54K
5: EX-8 Exchange Agreement, 9/30/02, Thomas N. Eagleson 20 55K
6: EX-9 Exchange Agreement, 9/30/02, Kevin C. Kern 20 55K
7: EX-10 Exchange Agreement, 9/30/02, Jeffrey M. O'Connell 20 55K
8: EX-11 Exchange Agreement, 9/30/02, Kenneth M. Roessler 20 55K
9: EX-12 Senior Credit Facility Commitment Letter 6 26K
10: EX-13 Bridge Facility Commitment Letter 11 36K
EX-12 — Senior Credit Facility Commitment Letter
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EXHIBIT 12
CONFIDENTIAL
September 30, 2002
BCO ACQUISITION, INC.
c/o Kelso & Company
320 Park Avenue
New York, New York 10022
Attention: Thomas R. Wall, IV
David Wahrhaftig
Stanley de J. Osborne
Ladies and Gentlemen:
BCO Acquisition, Inc. ("MergerCo") has advised Deutsche Bank Trust Company
Americas ("DBTCo") that it intends (a) to acquire (the "Acquisition") a
previously identified target corporation ("Jupiter") by effecting the merger
(the "Merger") of MergerCo with and into Jupiter, and (b) concurrently with the
Acquisition, to effect the repurchase of a majority of Jupiter's outstanding
subordinated notes (the "Existing Note Repurchase").
MergerCo has further advised DBTCo that the aggregate cash proceeds paid in
connection with the Acquisition and the Existing Note Repurchase will be
approximately $331,000,000, and that the total financing requirements for the
Acquisition and Existing Note Repurchase (including, without limitation, related
transaction fees and expenses and the ongoing working capital requirements of
Jupiter and its wholly-owned subsidiaries after the Acquisition) will be
provided through: (i) a common equity investment of not less than $101,000,000
(including a rollover investment of existing common equity) in BCO Holding
Company, of which MergerCo is a wholly-owned subsidiary (the cash proceeds of
which will be contributed to MergerCo), provided, that, the cash portion of this
$101,000,000 may be reduced (by an amount up to $10,000,000) by the amount of
any reduction in (x) actual transaction expenses as opposed to projected
transaction expenses and/or (y) actual total bank debt to be repaid at closing
as opposed to the projected amount of such bank debt (the "Equity Investment"),
(ii) $190,000,000, of newly issued unsecured senior or subordinated notes or
other obligations or other junior securities or obligations (the "Notes"), and
(iii) Jupiter's existing $90,000,000 senior secured revolving credit facility
(the "Existing Revolving Credit Facility"), amended and restated to accommodate
the Acquisition, Existing Note Repurchase, Equity Investment and issuance of the
Notes (collectively, the "Related Transactions"), or, if requested by MergerCo,
a new $90,000,000 senior secured revolving credit facility (the "New Revolving
Credit Facility" and, together with the Existing Revolving Credit Facility,
hereinafter referred to as the "Revolving Credit Facility") (with a total
commitment under the Revolving Credit Facility of not less than $90,000,000, and
no more than $40,000,000 to be funded thereunder at closing, after giving effect
to the Related Transactions).
DBTCo is pleased to commit, subject to the terms and conditions described
herein, to provide the Revolving Credit Facility by causing the amendment and
restatement of the Existing Revolving Credit Facility to accommodate the Related
Transactions, or, in the alternative, at your election, by extending the New
Revolving Credit Facility to Jupiter, in each case after giving effect to the
Related Transactions. Proceeds of the Revolving Credit Facility shall be used:
(a) if the New Revolving Credit Facility is extended, to repay the outstanding
debt of Jupiter under the Existing Revolving Credit Facility; (b) to pay a
portion of the purchase price for the Acquisition and Existing Note Repurchase,
and (c) to provide financing for the ongoing working capital and general
corporate purposes of Jupiter and its wholly-owned subsidiaries.
DBTCo's commitment hereunder to provide the Revolving Credit Facility is
delivered substantially on the basis set forth herein and in the Summary Term
Sheet attached hereto as Exhibit A (the "Term Sheet"). DBTCo's commitment
hereunder shall terminate automatically upon the earlier to occur of (a) the
close of business on February 28, 2003, unless on or prior thereto, the Credit
Agreement and all other Credit Documents (in each case as defined below) have
been executed and delivered to all parties, or (b) receipt by DBTCo of a written
notice from MergerCo requesting such termination (which notice shall be
irrevocable).
Our commitment is specifically subject to the negotiation of a definitive
amended and restated credit agreement or credit agreement, as the case may be
(the "Credit Agreement") and other definitive legal documentation with respect
to the Revolving Credit Facility (collectively, including the Credit Agreement,
herein referred to as the "Credit Documents") reflecting the applicable terms
and conditions set forth herein and otherwise in form and substance reasonably
satisfactory to DBTCo and its counsel.
In consideration of DBTCo's commitment with respect to the Revolving Credit
Facility, MergerCo agrees as follows:
(a) (i) if our commitment hereunder is terminated by MergerCo, or
otherwise terminates pursuant to the terms hereof, in each case for any reason,
to reimburse DBTCo promptly upon demand following the date of such termination
for all reasonable costs and expenses incurred by DBTCo, any of its affiliates
or any of their respective successors and assigns, including, without
limitation, Deutsche Bank AG and Deutsche Bank Securities Inc. (collectively,
its "Affiliates"), in connection with any collateral audits and asset appraisals
obtained by DBTCo in connection herewith, provided, that, notwithstanding the
foregoing, to the extent (and only to the extent) that MergerCo has received a
"bust-up" fee and/or expense reimbursement from Jupiter, MergerCo shall
reimburse DBTCo promptly upon demand following the date of such termination for
all reasonable costs, fees and expenses described in clause (a)(ii) herein
below); and
(ii) in the event the Closing Date occurs, to reimburse DBTCo
promptly upon the Closing Date, for all reasonable costs and expenses
incurred by DBTCo or any of its Affiliates in connection with the
negotiation, preparation, review, execution, delivery, collection and
enforcement of this commitment letter, the Credit Documents and any
other documentation contemplated hereby or thereby, which shall
include, without
limitation, (x) the reasonable fees and expenses of attorneys and
paralegals, (y) out-of-pocket expenses of personnel of DBTCo and its
Affiliates, including the costs and expenses described in the foregoing
clause (a)(i), and (z) all reasonable fees from outside sources, taxes
(other than income taxes), assessments and duties;
(the costs and expenses referred to in the foregoing paragraphs (i) and (ii)
being herein referred to as the "Expenses");
(b) whether or not the Credit Documents are executed or the
transactions contemplated herein and therein are consummated, to defend,
indemnify and hold harmless DBTCo and its Affiliates, directors, officers,
employees, persons controlling or controlled by or under common control with any
of them and any attorneys and agents of any of the foregoing (collectively, the
"Indemnified Persons") from and against any and all losses, claims, damages,
costs and expenses (including, without limitation, reasonable out-of-pocket
attorneys' and other legal fees, costs and expenses) ("Losses") to which any of
the Indemnified Persons becomes subject, whether direct or indirect, that result
or arise from or relate to any claim, litigation, or any other proceeding,
whether threatened or initiated, arising from or in connection with or related
to this commitment letter, the Revolving Credit Facility, any of the Credit
Documents, the Related Transactions or any other matter contemplated hereby or
thereby (including, without limitation, all reasonable costs involved in
connection with any subpoena or other governmentally-sanctioned request for the
production of documents or witnesses in any case or proceeding, whether
involving an Indemnified Person as a party or otherwise); provided, however,
that no Indemnified Person shall be indemnified for any losses, claims, damages,
costs or expenses of any kind which a court in a final judgment no longer
subject to appeal shall determine have arisen from the willful misconduct or
gross negligence of any Indemnified Person;
(c) to cooperate (and to use reasonable efforts to cause Jupiter to
cooperate) in all reasonable respects with the Agent in its completion of the
syndication of the Revolving Credit Facility, promptly providing such
information and other assistance as shall be reasonably requested from time to
time by the Agent in connection therewith; and
(d) whether or not the Credit Documents are executed or the
transactions contemplated herein and therein are consummated, that, prior to
termination of DBTCo's commitment hereunder, MergerCo shall furnish DBTCo with
such information about MergerCo and, to the extent available to MergerCo,
Jupiter, as DBTCo reasonably requests from time to time, and that all of such
and any other information, materials or analysis furnished to DBTCo, or
developed by DBTCo, prior to or after the date hereof in connection with the
Revolving Credit Facility and the Related Transactions, including information
bearing on the creditworthiness of Jupiter and its affiliates (collectively,
"Information"), may be shared by DBTCo with its Affiliates in connection with
the Revolving Credit Facility, provided that none of such Information shall be
used or disclosed by DBTCo or any of its Affiliates in any manner which would
violate any confidentiality agreement referred to herein below in this paragraph
or applicable law, including, without limitation, applicable securities laws. It
is understood and agreed that this paragraph shall serve as a nondisclosure
agreement within the meaning of Regulation FD, as adopted by the United States
Securities and Exchange Commission. You also
confirm that, subject to the foregoing, and to the compliance by DBTCo and its
Affiliates with any confidentiality agreement entered into between MergerCo, on
the one hand, and DBTCo or any of its Affiliates, on the other hand, and any
confidentiality agreement between Jupiter, on the one hand, and Kelso & Company,
on the other hand, in connection with the transactions contemplated hereby, you
have no objection to discussions between DBTCo's personnel and the Affiliates'
personnel concerning you, Jupiter, the Information, the Revolving Credit
Facility, the Related Transactions or any other potential transaction between
you and any of the Affiliates or Jupiter and any of the Affiliates, as the case
may be.
Subject to the fourth to last paragraph of this Commitment Letter, the
obligations of MergerCo contained in the foregoing subparagraphs (a) and (b),
respectively, shall remain in full force and effect whether or not definitive
Credit Documents are executed and delivered and notwithstanding the termination
of this commitment letter. The foregoing agreement shall be in addition to any
rights that DBTCo or any other Indemnified Person may have at common law or
otherwise, including, but not limited to, any right to contribution. If for any
reason the foregoing indemnification is unavailable to any Indemnified Person or
is insufficient to hold such Indemnified Person harmless as to the extent
contemplated in the preceding paragraphs, then MergerCo shall contribute to the
amount paid or payable to the Indemnified Person as a result of such Losses as
is appropriate to reflect the relative benefits received by MergerCo on the one
hand and the applicable Indemnified Person on the other, as well as any other
relevant equitable considerations Notwithstanding the foregoing, MergerCo shall
not be liable under any circumstance to contribute any amounts to any
Indemnified Person under this commitment letter or otherwise, except to the
extent and under such circumstances as MergerCo would have been obligated to
indemnify such Indemnified Person pursuant to paragraph (b) above if such
indemnification provisions were enforceable under applicable law.
MergerCo hereby represents and warrants to DBTCo that, to its knowledge, (i) the
Information (other than the Financial Statements and Projections (as each such
term is defined herein below)) which has been or is hereafter furnished by or on
behalf of MergerCo to DBTCo in connection with the transactions contemplated
hereby, taken as a whole, will not, when furnished, contain any untrue statement
of a material fact or omit to state a material fact known to you necessary in
order to make the statements therein not misleading in light of the
circumstances under which such statements are made; (ii) all financial
statements of any person or entity (the "Financial Statements") that have been
or will be made available to DBTCo by MergerCo fairly present the consolidated
financial position, the consolidated results of operations, the changes in
stockholder equity, the cash flow and the other information included therein, as
the case may be, for such person or entity for the periods or as of the dates
therein set forth, in each case in accordance with the generally acceptable
accounting principles ("GAAP") consistently applied during the periods involved,
except as otherwise noted therein and except that the unaudited financial
statements are subject to normal year end adjustments and lack footnotes and
other presentation items required for full disclosure under GAAP; and (iii) all
financial projections concerning Jupiter that have been or are hereafter made
available to DBTCo by MergerCo in connection with the transactions contemplated
hereby (the "Projections") have been, or in the case of Projections made
available after the date hereof, will be prepared in good faith based upon
assumptions believed by you at the time of preparation to be reasonable; it
being understood that the Projections are subject to significant uncertainties
and contingencies (many
of which are beyond MergerCo's control) and that no assurances can be given that
such Projections will be realized. In addition, MergerCo agrees that, for so
long as DBTCo shall have a commitment hereunder to provide the Revolving Credit
Facility, MergerCo will advise DBTCo promptly of all developments materially
affecting MergerCo or Jupiter of which MergerCo becomes aware.
MergerCo further agrees that neither DBTCo, the Affiliates nor any of their
respective directors, officers, employees, agents, attorneys or affiliates shall
be liable in respect of the transactions contemplated by this commitment letter
or the Credit Documents on any theory of liability for indirect or consequential
damages.
This commitment letter constitutes the entire agreement between DBTCo and
MergerCo, and supersedes all other agreements between DBTCo and MergerCo, in
each case with respect to the subject matter hereof. This commitment letter
shall not be assignable by MergerCo without the prior written consent of DBTCo
and may not be amended or any provision hereof waived or modified except by an
instrument in writing signed by MergerCo and DBTCo. MergerCo's representations,
warranties, covenants and obligations under this commitment letter, other than
the provisions hereof relating to MergerCo's ongoing assistance in connection
with the syndication of the Revolving Credit Facility and the provisions set
forth in the immediately preceding paragraph, shall automatically terminate and
be superseded by the provisions of the Credit Documents upon the initial funding
thereunder, whereupon MergerCo shall automatically be released from all
liabilities and obligations hereunder.
DBTCo's commitment to provide the Revolving Credit Facility on the terms and
conditions set forth in this commitment letter and the Term Sheet is
specifically contingent upon the execution and delivery (by facsimile) back to
DBTCo of this commitment letter and the accompanying letter agreements
(collectively, the "fee letter"), in each case by 5:00 p.m. Chicago time on
October 4, 2002.
This commitment letter may be executed in counterparts which, when taken
together, shall constitute an original. Any such counterpart which may be
delivered by facsimile transmission shall be deemed the equivalent of an
originally signed counterpart and shall be fully admissible in any enforcement
proceedings regarding this commitment letter. Pursuant to New York General
Obligations Law Section 5-1401, this commitment letter shall be governed by and
construed in accordance with the internal laws and decisions of the State of New
York.
Please indicate your acceptance of and agreement to the foregoing by signing and
returning the enclosed copy of this letter (together with the accompanying fee
letter pertaining hereto) to Deutsche Bank Trust Company Americas, 233 South
Wacker Drive, 84/th/ Floor, Chicago, Illinois 60606, Attention: Frank Fazio.
Sincerely,
DEUTSCHE BANK TRUST COMPANY
AMERICAS
By: /s/ Albert Fischetti
------------------------------
Name: Albert Fischetti
Title: Director
READ AND AGREED TO this
30th day of September, 2002
BCO ACQUISITION, INC.
By: /s/ James J. Connors II
------------------------------
Name: James J. Connors II
Title: Vice President
Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
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| This ‘SC 13D’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 2/28/03 | | 2 |
| Filed on: | | 10/10/02 |
| | 10/4/02 | | 5 |
| | 9/30/02 | | 1 | | | | | 8-K |
| List all Filings |
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