Exhibit 4.6
$170,000,000 REVOLVING LOANS
$80,000,000 TERM LOAN
CREDIT AGREEMENT
AMONG
XXXXXX'X, INC.,
THE LENDERS,
BANK ONE, WISCONSIN
AS AGENT,
XXXXXX TRUST AND SAVINGS BANK
AND NATIONAL CITY BANK
AS CO-SYNDICATION AGENTS,
AND
BANC ONE CAPITAL MARKETS, INC.
AS LEAD ARRANGER AND SOLE BOOK RUNNER
Dated as of March 31, 2000
TABLE OF CONTENTS
ARTICLE I. DEFINITIONS 1
ARTICLE II. THE CREDITS 20
2.1. Term Loans. 20
2.1.1. Making the Term Loans. 20
2.1.2 Interest Repayment Dates; Repayment
of the Term Loans. 20
2.2. Revolving Loans. 21
2.2.1. Making the Revolving Loans. 22
2.2.2. Interest Repayment Dates;
Repayment of the Revolving Loans. 22
2.3 Swing Line Loans. 22
2.3.1. Amount of Swing Line Loans. 22
2.3.2. Borrowing Notice. 22
2.3.3. Making of Swing Line Loans. 22
2.3.4. Repayment of Swing Line Loans. 23
2.4 Types of Advances 23
2.5 Commitment Fee; Reduction in Aggregate Revolving
Loan Commitment 24
2.6 Minimum Amount of Each Advance 24
2.7 Certain Principal Payments. 24
2.7.1 Optional Payments. 24
2.7.2 Mandatory Payments. 25
2.8 Method of Selecting Types and Interest Periods
for New Advances. 26
2.9 Conversion and Continuation of Outstanding
Advances. 26
2.10 Changes in Interest Rate, etc. 27
2.11 Rates Applicable After Default. 27
2.12 Method of Payment. 27
2.13 Noteless Agreement; Evidence of Indebtedness. 28
2.14 Telephonic Notices. 28
2.15 Interest and Fees Basis. 28
2.16 Notification of Advances, Interest Rates,
Prepayment and Commitment Reduction. 29
2.17 Lending Installations. 29
2.18 Non-Receipt of Funds by the Agent. 29
2.19. Facility LCs. 29
2.19.1. Issuance. 29
2.19.2. Participations. 30
2.19.3. Notice. 29
2.19.4. LC Fees. 30
2.19.5. Administration; Reimbursement by Lenders. 30
2.19.6. Reimbursement by Borrower. 31
2.19.7. Obligations Absolute 31
2.19.8. Actions of LC Issuer. 32
2.19.9. Indemnification. 32
2.19.10. Lenders' Indemnification. 33
2.19.11. Facility LC Collateral Account. 33
2.19.12. Rights as a Lender. 33
2.20 Replacement of Lender. 33
ARTICLE III. YIELD PROTECTION; TAXES 34
3.1 Yield Protection. 34
3.2 Changes in Capital Adequacy Regulations. 35
3.3 Availability of Types of Advances. 35
3.4 Funding Indemnification. 35
3.5 Taxes. 36
3.6 Lender Statements; Survival of Indemnity. 37
ARTICLE IV. CONDITIONS PRECEDENT 38
4.1 Initial Credit Extension. 38
4.2 Each Credit Extension. 41
ARTICLE V. REPRESENTATIONS AND WARRANTIES 41
5.1 Organization and Qualification. 41
5.2 Subsidiaries. 41
5.3 Power and Authority. 42
5.4 Validity and Binding Effect. 42
5.5. No Conflict. 42
5.6. Litigation. 42
5.7. Title to Properties. 43
5.8. Financial Statements. 43
5.9. Use of Proceeds; Margin Stock. 43
5.10 Full Disclosure. 44
5.11. Taxes 44
5.12. Consents and Approvals. 44
5.13. No Event of Default; Compliance with Instruments. 44
5.14. Patents, Trademarks, Copyrights, Licenses, Etc. 44
5.15. Insurance. 45
5.16. Compliance with Laws. 45
5.17. Material Contracts; Burdensome Restrictions. 45
5.18. Investment Companies: Regulated Entities. 45
5.19. Plans and Benefit Arrangements. 45
5.20. Employment Matters. 46
5.21. Environmental Matters. 47
5.22 Subordinated Indebtedness. 48
5.23. Updates to Schedules. 48
5.24 Solvency. 48
ARTICLE VI. COVENANTS 49
6.1. Affirmative Covenants. 49
6.1.1. Preservation of Existence, Etc. 49
6.1.2. Payment of Liabilities, Including
Taxes, Etc. 49
6.1.3. Maintenance of Insurance. 50
6.1.4. Maintenance of Properties and Leases. 50
6.1.5. Maintenance of Patents, Trademarks, Etc. 50
6.1.6. Visitation Rights. 50
6.1.7. Keeping of Records and Books of Account. 50
6.1.8. Plans and Benefit Arrangements. 50
6.1.9. Compliance with Laws. 51
6.1.10. Use of Proceeds. 51
6.1.10.1. General. 51
6.1.10.2. Margin Stock. 51
6.1.10.3. Section 20 Subsidiaries. 51
6.1.11. Subordination of Intercompany Loans. 51
6.1.12. Rate Management Transactions. 51
6.2. Negative Covenants. 51
6.2.1. Indebtedness. 52
6.2.2. Liens. 52
6.2.3. Contingent Obligations. 52
6.2.4. Loans and Investments. 53
6.2.5. Dividends and Related Distributions. 54
6.2.6. Liquidations, Mergers, Consolidations,
Acquisitions. 54
6.2.7. Dispositions of Assets or Subsidiaries. 55
6.2.8. Affiliate Transactions. 55
6.2.9. Subsidiaries, Partnerships and
Joint Ventures. 55
6.2.9.1. New Subsidiaries. 55
6.2.9.2. Joinder of Subsidiaries as Required
Under Other Circumstances. 56
6.2.10. Continuation of or Change in Business. 56
6.2.11. Plans and Benefit Arrangements. 56
6.2.12. Fiscal Year. 57
6.2.13. Changes in Organizational Documents. 57
6.2.14. Financial Covenants. 57
6.2.14.1. Minimum Net Worth. 58
6.2.14.2. Leverage Ratio. 58
6.2.14.3. Fixed Charge Coverage Ratio. 58
6.2.14.4. Capital Expenditures. 59
6.2.15. Subordinated Indebtedness. 59
6.2.16. Sale of Accounts. 59
6.2.17. Sale and Leaseback Transactions and
other Off-Balance Sheet Liabilities. 59
6.2.18. Financial Contracts. 59
6.3. Reporting Requirements. 59
6.3.1 Quarterly Financial Statements 60
6.3.2. Annual Financial Statements. 60
6.3.3. Certificate of the Borrower. 60
6.3.4. Notice of Default. 60
6.3.5. Notice of Litigation. 61
6.3.6. Forecasts, Other Reports and Information. 61
6.3.7. Notices Regarding Plans and Benefit
Arrangements. 61
6.3.7.1. Certain Events. 61
6.3.7.2. Notices of Involuntary Termination and
Annual Reports. 62
6.3.7.3. Notice of Voluntary Termination. 62
ARTICLE VII. DEFAULTS 63
ARTICLE VIII. ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES 65
8.1 Acceleration; Facility LC Collateral Account. 65
8.2 Amendments. 66
8.3 Preservation of Right. 67
ARTICLE IX. GENERAL PROVISIONS 68
9.1 Survival of Representations. 68
9.2 Governmental Regulation. 68
9.3 Headings. 68
9.4 Entire Agreement. 68
9.5 Several Obligations; Benefits of this Agreement. 68
9.6 Expenses; Indemnification. 68
9.7 Number of Documents. 69
9.8 Accounts. 69
9.9 Severability of Provisions. 69
9.10 Nonliability of Lenders. 69
9.11 Confidentiality. 70
9.12. Nonreliance 70
9.13 Disclosure. 70
ARTICLE X. THE AGENT 70
10.1 Appointment; Nature of Relationship. 70
10.2 Powers. 71
10.3 General Immunity. 71
10.4. No Responsibility for Loans, Recitals, etc. 71
10.5 Action on Instructions of Lenders. 71
10.6 Employment of Agents and Counsel. 72
10.7 Reliance on Documents; Counsel. 72
10.8 Agent's Reimbursement and Indemnification. 72
10.9 Notice of Default. 72
10.10 Rights as a Lender. 73
10.11 Lender Credit Decision. 73
10.12. Successor Agent 73
10.13. Agent's Fee. 74
10.14 Delegation to Affiliates. 74
10.15 Execution of Collateral Documents. 74
10.16 Collateral Releases. 74
10.17 Co-Agents, Documentation Agent, Syndication
Agent, etc. 74
ARTICLE XI. SETOFF; RATABLE PAYMENTS 74
11.1 Setoff. 74
11.2 Ratable Payments. 75
ARTICLE XII. BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS 75
12.1 Successors and Assigns. 75
12.2 Participations. 76
12.2.1 Permitted Participants; Effect. 76
12.2.2 Voting Rights. 76
12.2.3 Benefit of Setoff. 76
12.3 Assignments. 76
12.3.1 Permitted Assignments. 76
12.3.2 Effect; Effective Date. 77
12.4 Dissemination of Information. 77
12.5 Tax Treatment. 77
ARTICLE XIII. NOTICES 78
13-1 Notices 78
13.2 Change of Address. 78
ARTICLE XIV. COUNTERPARTS 78
ARTICLE XV. CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY
TRIAL 79
15.1 Choice of Law. 79
15.2 Consent to Jurisdiction. 79
15.3 Waiver of Jury Trial. 79
CREDIT AGREEMENT
This Credit Agreement, dated as of March 31, 2000, is among
Xxxxxx'x, Inc., the Lenders and Bank One, Wisconsin, as LC Issuer
and as Agent. The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
------------
As used in this Agreement, the following terms shall have the
following meanings:
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by
which the Borrower 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 or voting power) of the
outstanding ownership interests of a partnership or limited
liability company.
"Advance" means a borrowing hereunder, (i) made by 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 (other
than Swing Line Loans) of the same Type and, in the case of
Eurodollar Loans, for the same Interest Period.
"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 owns 10% or more of any class of voting
securities (or other ownership 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 stock, by contract or
otherwise.
"Agent" means Bank One in its capacity as contractual
representative of the Lenders pursuant to Article X, and not in its
individual capacity as a Lender, and any successor Agent appointed
pursuant to Article X.
"Agent's Letter" shall have the meaning assigned to that term
in Section 10.13.
"Aggregate Commitment" means the aggregate of the Commitments
of all the Lenders, as reduced from time to time pursuant to the
terms hereof.
"Aggregate Outstanding Credit Exposure" means, at any time, the
aggregate of the Outstanding Credit Exposure of all Lenders.
"Aggregate Outstanding Revolving Credit Exposure" means, at any
time, the aggregate of the Outstanding Revolving Credit Exposure of
all Lenders.
"Aggregate Revolving Loan Commitment" means the aggregate of
the Revolving Loan Commitments of all the Lenders, as reduced from
time to time pursuant to the terms hereof.
"Aggregate Term Loan Commitment" means the aggregate of the
Term Loan Commitments of all the Lenders.
"Agreement" means this credit agreement, as it may be amended
or modified and in effect from time to time.
"Agreement Accounting Principles" means generally accepted
accounting principles as in effect from time to time, applied in a
manner consistent with that used in preparing the financial
statements referred to in Section 5.8.
"Alternate Base Rate" means, for any day, a rate of interest
per annum equal to the higher of (i) the Prime Rate for such day or
(ii) the sum of the Federal Funds Effective Rate for such day plus
1/2% per annum.
"Applicable Fee Rate" means, at any time, the percentage rate
per annum at which commitment fees are accruing on the unused
portion of the Aggregate Revolving Loan Commitment at such time as
set forth in the Pricing Schedule.
"Applicable Margin" means, with respect to Credit Extensions of
any Type at any time, the percentage rate per annum which is
applicable at such time with respect to Credit Extensions of such
Type as set forth in the Pricing Schedule.
"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.
"Asset Disposition" means the sale, sale leaseback, exchange or
similar disposition (including by means of merger, consolidation or
amalgamation) of any Property, business or assets of the Borrower or
its Subsidiaries (other than sales of inventory in the ordinary
course of business or obsolete or worn-out Property in the ordinary
course of business) to any Person or Persons other than the Borrower
or any of its Subsidiaries.
"Authorized Representative" means: (i) with respect to or for
purposes of any notice or communication initiated by a Loan Party
pursuant to Article II of this Agreement, any of the following
individuals: Xxxxxx Xxxxx, Xxxxxx Xxxx, Xxx Xxxxxx or Xxxx Xxxxxxx
or such other persons as the Borrower may from time to time
designate in writing to the Agent, acting singly: (ii) with respect
to any other reference herein to an "Authorized Representative" of a
Loan Party, any of the President, Chief Financial Officer, Secretary
or Treasurer of such Loan Party, acting singly; and (iii) with
respect to any reference herein to an "Authorized Person" of any
Lender, any Vice President or Director of such Lender, acting
singly.
"Bank One" means Bank One, Wisconsin, in its individual
capacity, and its successors and assigns.
"Benefit Arrangement" means at any time an "employee benefit
plan," within the meaning of Section 3(3) of ERISA, which is neither
a Plan nor a Multiemployer Plan and which is maintained, sponsored
or otherwise contributed to by any member of the Controlled Group.
"Borrower" means Xxxxxx'x, Inc., a Wisconsin corporation, and
its successors and assigns.
"Borrowing Date" means a date on which a Credit Extension 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 Eurodollar Advances, a day (other than a
Saturday or Sunday) on which banks generally are open in Chicago and
New York for the conduct of substantially all of their commercial
lending activities, interbank wire transfers can be made on the
Fedwire system and dealings in United States dollars are carried on
in the London interbank market and (ii) for all other purposes, a
day (other than a Saturday or Sunday) on which banks generally are
open in Chicago for the conduct of substantially all of their
commercial lending activities and interbank wire transfers can be
made on the Fedwire system.
"Capital Expenditures" means, without duplication, any
expenditures for any purchase or other acquisition of any asset
which would be classified as a fixed or capital asset on a
consolidated balance sheet of the Borrower and its Subsidiaries
prepared in accordance with Agreement Accounting Principles
excluding (i) expenditures of insurance proceeds to rebuild or
replace any asset after a casualty loss and (ii) leasehold
improvement expenditures for which the Borrower or a Subsidiary is
reimbursed promptly by the lessor.
"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.
"Cash Equivalent Investments" means (i) direct obligations of
the United States of America or any agency or instrumentality
thereof or obligations backed by the full faith and credit of the
United States of America maturing in twelve (12) months or less from
the date of acquisition; (ii) commercial paper either (A) maturing
in 270 days or less rated not lower than A-1, by S&P or P-1 or
better by Xxxxx'x on the date of acquisition or (B) maturing in 30
days or less which is not rated but with respect to which the issuer
has an unconditional line of credit supporting the repayment of such
paper with a commercial bank whose obligations are rated A-1, A or
the equivalent or better by S&P on the date of acquisition; (iii)
demand deposits, time deposits or certificates of deposit maturing
within one year in commercial banks whose obligations are rated A-1,
A or the equivalent or better by S&P on the date of acquisition; and
(iv) money market accounts or mutual fund accounts investing solely
in securities described in (i) through (iii) above.
"Change in Control" means the acquisition by any Person (other
than the Xxxxxx'x, Inc. Voting Trust), 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) of 30% or more of the outstanding shares of
voting stock of the Borrower.
"Closing Date" means the date upon which the conditions
precedent to the initial Credit Extension have been satisfied or
waived by the Lenders and the Term Loans and initial Revolving Loans
are made hereunder.
"Code" means the Internal Revenue Code of 1986, as amended,
reformed or otherwise modified from time to time.
"Collateral Documents" means, collectively, the Pledge and
Security Agreement and the Mortgages.
"Collateral Shortfall Amount" is defined in Section 8.1.
"Commitment" means, for each Lender, collectively, such
Lender's Revolving Loan Commitment and Term Loan Commitment.
"Consolidated Capital Expenditures" means, with reference to
any period, the Capital Expenditures of the Borrower and its
Subsidiaries calculated on a consolidated basis for such period.
"Consolidated EBITDA" means Consolidated Net Income plus, to
the extent deducted from revenues in determining Consolidated Net
Income, (i) Patronage Dividends, (ii) Consolidated Interest Expense,
(iii) expense for taxes paid or accrued, (iv) depreciation, (v)
amortization and (vi) extraordinary losses incurred other than in
the ordinary course of business, minus, to the extent included in
Consolidated Net Income, extraordinary gains realized other than in
the ordinary course of business, all calculated for the Borrower and
its Subsidiaries on a consolidated basis.
"Consolidated Funded Indebtedness" means at any time the
aggregate dollar amount of Consolidated Indebtedness which has
actually been funded and is outstanding at such time, whether or not
such amount is due or payable at such time.
"Consolidated Indebtedness" means at any time the Indebtedness
of the Borrower and its Subsidiaries calculated on a consolidated
basis as of such time.
"Consolidated Intangible Assets" means at any time goodwill
(including any amounts, however designated, representing the excess
of the purchase price paid for assets or stock acquired subsequent
to the date of this Agreement over the value assigned thereto on the
books of the Borrower and its Subsidiaries), patents, trademarks,
trade names, copyrights and all other intangible assets of the
Borrower and its Subsidiaries calculated on a consolidated basis as
of such time.
"Consolidated Interest Expense" means, with reference to any
period, the interest expense of the Borrower and its Subsidiaries
calculated on a consolidated basis for such period.
"Consolidated Net Income" means, with reference to any period,
the net income (or loss) of the Borrower and its Subsidiaries
calculated on a consolidated basis for such period.
"Consolidated Net Rentals" means, with reference to any period,
the Net Rentals of the Borrower and its Subsidiaries calculated on a
consolidated basis for such period.
"Consolidated Net Worth" means at any time the consolidated
stockholders' equity of the Borrower and its Subsidiaries calculated
on a consolidated basis as of such time plus the book value of the
Borrower's redeemable common stock.
"Consolidated Tangible Assets" means at any time the total
amount of all assets of the Borrower and its Subsidiaries (less
depreciation, depletion and other properly deductible valuation
reserves) less all Consolidated Intangible Assets.
"Consolidated Working Capital" means, as at any date of
determination, the excess, if any, of (i) the current assets of the
Borrower and its Subsidiaries calculated on a consolidated basis at
such date (except cash and Cash Equivalent Investments) over (ii)
the current liabilities of the Borrower and its Subsidiaries
calculated on a consolidated basis at such date (except current
maturities of long-term debt and Revolving Loans as of such date and
all accrued interest as of such date).
"Contingent Obligation" of a Person means any agreement,
undertaking or arrangement by which such Person guarantees,
contingently agrees to purchase or provide funds for the payment of,
or otherwise becomes or is contingently liable upon, the obligation
or liability of any other Person, or agrees to maintain the net
worth or working capital or other financial condition of any other
Person, or otherwise assures any creditor of such other Person
against loss, including, without limitation, any comfort letter,
operating agreement, take-or-pay contract or the obligations of any
such Person as general partner of a partnership with respect to the
liabilities of the partnership.
"Conversion/Continuation Notice" is defined in Section 2.9.
"Controlled Group" means all members of a controlled group of
corporations or other business entities and all trades or businesses
(whether or not incorporated) under common control which, together
with the Borrower or any of its Subsidiaries, are treated as a
single employer under Section 414 of the Code.
"Credit Extension" means the making of an Advance or the
issuance of a Facility LC hereunder.
"Default" means an event described in Article VII.
"Environmental Complaint" means any written complaint setting
forth a cause of action for personal or property damage or natural
resource damage or equitable relief, order, notice of violation,
citation, request for information issued pursuant to any
Environmental Laws by an Official Body, subpoena or other written
notice of any type relating to, arising out of, or issued pursuant
to, any of the Environmental Laws or any Environmental Conditions,
as the case may be.
"Environmental Conditions" means any conditions of the
environment, including the workplace, the ocean, natural resources
(including flora or fauna), soil, surface water, groundwater, any
actual or potential drinking water supply sources, substrata or the
ambient air, relating to or arising out of, or caused by, the use,
handling, storage, treatment, recycling, generation, transportation,
release, spilling, leaking, pumping, emptying, discharging,
injecting, escaping, leaching, disposal, dumping, threatened release
or other management or mismanagement of Regulated Substances
resulting from the use of, or operations on, any Property.
"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.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any rule or regulation
issued thereunder.
"Eurodollar Advance" or "Eurodollar Loan" means an Advance
which, except as otherwise provided in Section 2.11, bears interest
at the applicable Eurodollar Rate.
"Eurodollar Base Rate" means, with respect to a Eurodollar
Advance for the relevant Interest Period, the applicable British
Bankers' Association Interest Settlement Rate for deposits in U.S.
dollars appearing on Reuters Screen FRBD 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 is not available to the
Agent for any reason, the applicable Eurodollar Base Rate for the
relevant Interest Period shall instead be the applicable British
Bankers' Association Interest Settlement Rate for deposits in U.S.
dollars 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 to the
Agent, the applicable Eurodollar Base Rate for the relevant Interest
Period shall instead be the rate determined by the Agent to be the
rate at which Bank One or one of its Affiliate banks offers to place
deposits in U.S. dollars 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 Eurodollar Loan and having
a maturity equal to such Interest Period.
"Eurodollar Rate" means, with respect to a Eurodollar Advance
for the relevant Interest Period, the sum of (i) the quotient of (a)
the Eurodollar Base 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 Applicable Margin.
"Excess Cash Flow" means, for any fiscal year of the Borrower,
an amount equal to the Borrower's (i) Consolidated EBITDA for such
period minus (ii) income taxes paid in cash for such period minus
(iii) Consolidated Capital Expenditures paid in cash during such
period minus (iv) Consolidated Interest Expense for such period
minus (v) all payments of the principal portion of the Term Loans
and scheduled amortization of the principal portion of all other
term Indebtedness of the Borrower and its Subsidiaries during such
period minus (vi) cash payments in respect of extraordinary and
nonrecurring items minus (vii) the increase (or plus the decrease)
in Consolidated Working Capital during such period (provided, that
for purposes of determining the Borrower's Consolidated Working
Capital for its 2000 fiscal year, the amount of Working Capital (as
hereinafter defined) of any Person that the Borrower acquires during
its 2000 fiscal year (an "Acquired Person") shall be added as an
asset to the Borrower's audited consolidated and consolidating
balance sheet dated as of January 1, 2000; for purposes hereof,
"Working Capital" means, as at any date of determination, the
excess, if any, of (A) the current assets of the Acquired Person
calculated at such date (except cash and Cash Equivalent
Investments) over (B) the current liabilities of the Acquired Person
calculated at such date (except current maturities of long-term debt
and all accrued interest as of such date) minus (viii) Patronage
Dividends paid in cash in an amount not to exceed thirty percent
(30%) of all Patronage Dividends, in each case as calculated in
accordance with Agreement Account Principles minus (ix) permitted
redemptions of Borrower's common stock.
"Excluded Taxes" means, in the case of each Lender or
applicable Lending Installation and the Agent, taxes imposed on its
overall net income, and franchise taxes imposed on it under the laws
of any jurisdiction.
"Exhibit" refers to an exhibit to this Agreement, unless
another document is specifically referenced.
"Existing Letters of Credit" means those letters of credit
outstanding on the Closing Date and identified on Schedule 2.19.
"Facility LC" is defined in Section 2.19.1.
"Facility LC Application" is defined in Section 2.19.3.
"Facility LC Collateral Account" is defined in Section
2.19.11.
"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 Agent from three Federal funds brokers of recognized standing
selected by the 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
Rate Management Transaction.
"Floating Rate" means, for any day, a rate per annum equal to
(i) the Alternate Base Rate for such day plus (ii) the Applicable
Margin, in each case changing when and as the Alternate Base Rate
changes.
"Floating Rate Advance" or "Floating Rate Loan" means an
Advance which, except as otherwise provided in Section 2.11, bears
interest at the Floating Rate.
"General Intangibles Mortgage" means that certain General
Intangibles Mortgage and Security Agreement dated as of the Closing
Date, executed by the Borrower in favor of the Agent, for the
ratable benefit of the Lenders, as it may be amended or modified and
in effect from time to time.
"Guarantors" means each of the Borrower's Subsidiaries that are
parties to the Guaranty, and their successors and assigns.
"Guaranty" means that certain Guaranty dated as of the Closing
Date, executed by certain of the Borrower's direct and indirect
Subsidiaries as identified therein in favor of the Agent, for the
ratable benefit of the Lenders, as it may be amended or modified and
in effect from time to time.
"Indebtedness" of a Person means such Person's (i) obligations
for borrowed money, (ii) obligations representing the deferred
purchase price of Property or services (other than accounts payable
arising in the ordinary course of such Person's business payable on
terms customary in the trade), (iii) obligations, whether or not
assumed, secured by Liens or payable out of the proceeds or
production from Property now or hereafter owned or acquired by such
Person, (iv) obligations which are evidenced by notes, acceptances,
or other similar instruments, (v) obligations of such Person to
purchase securities or other Property arising out of or in
connection with the sale of the same or substantially similar
securities or Property, (vi) Capitalized Lease Obligations (vii)
Contingent Obligations, (viii) Reimbursement Obligations, (ix) Net
Xxxx-to-Market Exposure under Rate Management Transactions and other
Financial Contracts, (x) Off-Balance Sheet Liabilities, (xi) Sale
and Leaseback Transactions, and (xii) any other obligation for
borrowed money or other similar financial accommodation which in
accordance with Agreement Accounting Principles would be shown as a
liability on the consolidated balance sheet of such Person, but
excluding guaranties by one Loan Party of the Indebtedness of
another Loan Party.
"Ineligible Security" means any security which may not be
underwritten or dealt in by member banks of the Federal Reserve
System under Section 16 of the Banking Act of 1933 (12 U.S.C.
Section 24, Seventh), as amended.
"Intercompany Subordination Agreement" means that certain
subordination agreement among the Loan Parties in the form attached
hereto as Exhibit 1.1(A).
"Interest Period" means, with respect to a Eurodollar Advance,
a period of one, two, three or six months commencing on a Business
Day selected by the Borrower pursuant to this Agreement. Such
Interest Period shall end on the day which corresponds numerically
to such date one, two, three or six months thereafter, provided,
however, that if there is no such numerically corresponding day in
such next, second, third or sixth succeeding month, such Interest
Period shall end on the last Business Day of such next, second,
third or sixth succeeding month. 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) 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; and
structured notes, derivative financial instruments and other similar
instruments or contracts owned by such Person.
"Labor Contracts" means all employment agreements, employment
contracts, collective bargaining agreements and other agreements
among any Loan Party and its employees.
"LC Fee" is defined in Section 2.19.4.
"LC Issuer" means Bank One (or any subsidiary or affiliate of
Bank One designated by Bank One) in its capacity as issuer of
Facility LCs hereunder.
"LC Obligations" means, at any time, the sum, without
duplication, of (i) the aggregate undrawn stated amount under 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 2.19.5.
"Lenders" means the lending institutions listed on the
signature pages of this Agreement and their respective successors
and assigns. Unless otherwise specified, the term "Lenders"
includes Bank One in its capacity as Swing Line Lender.
"Lending Installation" means, with respect to a Lender or the
Agent, the office, branch, subsidiary or affiliate of such Lender or
the Agent listed on the signature pages hereof or on a Schedule or
otherwise selected by such Lender or the Agent pursuant to Section
2.17.
"Leverage Ratio" means, as of any date of calculation, the
ratio of (i) Consolidated Funded Indebtedness outstanding on such
date to (ii) Consolidated EBITDA for the Borrower's then most-
recently ended four fiscal quarters.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or other
security agreement 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).
"Loan" means, with respect to a Lender, such Lender's loans
made pursuant to Article II (or any conversion or continuation
thereof), and collectively all Revolving Loans and Term Loans,
whether made or continued as or converted to Floating Rate Advances
or Eurodollar Advances and, in the case of the Swing Line Lender,
any Swing Line Loan made by it pursuant to Section 2.3.
"Loan Documents" means this Agreement, the Agent's Letter, any
Notes issued pursuant to Section 2.13, the Collateral Documents, the
Facility LCs, the Facility LC Applications, the Guaranty, the Pledge
and Security Agreements, the Mortgages, the General Intangibles
Mortgage, the Intercompany Subordination Agreement, the
Subordination Agreement, and any other instruments, certificates or
documents delivered or contemplated to be delivered hereunder or
thereunder or in connection herewith or therewith, as the same may
be supplemented or amended from time to time in accordance herewith
or therewith, and "Loan Document" shall mean any of the Loan
Documents.
"Loan Parties" means, collectively, the Borrower and the
Guarantors and "Loan Party" shall mean any of the Loan Parties.
"Material Adverse Effect" means a material adverse effect on
(i) the business, Property, condition (financial or otherwise),
results of operations, or prospects of the Borrower and its
Subsidiaries taken as a whole, (ii) the ability of the Borrower to
perform its 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 Agent, the LC Issuer or
the Lenders thereunder.
"Material Subsidiary" means, on any date of determination, any
Subsidiary which meets the requirements set forth in (i) or (ii)
below:
(i) the gross revenues of such Subsidiary over the twelve-
months preceding the date of determination equals or exceeds 5% of
the consolidated gross revenues of the Borrower and its Subsidiaries
(determined in accordance with Agreement Accounting Principles); or
(ii) the book value of the assets of such Subsidiary on such
date equals or exceeds 5% of the book value of the consolidated
assets of the Borrower and its Subsidiaries (determined in
accordance with Agreement Accounting Principles).
If the Borrower acquires assets or stock or other ownership
interests of another business (the "Acquired Business") in a
Permitted Acquisition (as that term is defined in Section 6.2.6)
whether by merger, purchase or otherwise, the Borrower shall
determine whether each Subsidiary of Borrower is a "Material
Subsidiary" on the date of such Permitted Acquisition after giving
effect to such Permitted Acquisition and the Borrower shall treat
the Acquired Business and any Subsidiaries formed or acquired by the
Borrower in connection therewith as having been owned by the
Borrower throughout the 12 months preceding the date of such
Permitted Acquisition for purposes of clause (i) above.
"Mega Marts Agreement" means that certain Stock Purchase
Agreement dated as of March 31, 2000 among the Borrower and the
shareholders of Mega Marts, Inc.
"Mega Marts Notes" means those certain 8.25% promissory notes
due five years from the consummation of the transactions
contemplated by the Mega Marts Agreements, in an original principal
amount of $39,000,000, issued and outstanding from time to time
under, and pursuant to, the Mega Marts Agreement.
"Modify" and "Modification" are defined in Section 2.19.1.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Mortgages" means those certain Real Estate Mortgages dated as
of the Closing Date, executed by the Borrower and certain of the
Guarantors, for the ratable benefit of the Lenders, as the same may
be amended or modified and in effect from time to time.
"Multiemployer Plan" means any employee benefit plan which is a
"multiemployer plan" within the meaning of Section 4001(a)(3) of
ERISA and to which the Borrower or any member of the Controlled
Group is then making or accruing an obligation to make contributions
or, within the preceding five Plan years, has made or had an
obligation to make such contributions.
"Multiple Employer Plan" means a Plan which has two or more
contributing sponsors (including the Borrower or any member of the
Controlled Group) at least two of whom are not under common control,
as such a plan is described in Sections 4063 and 4064 of ERISA.
"Net Xxxx-to-Market Exposure" of a Person means, as of any date
of determination, the excess (if any) of all unrealized losses over
all unrealized profits of such Person arising from Rate Management
Transactions. "Unrealized losses" means the fair market value of
the cost to such Person of replacing such Rate Management
Transaction as of the date of determination (assuming the Rate
Management Transaction were to be terminated as of that date), and
"unrealized profits" means the fair market value of the gain to such
Person of replacing such Rate Management Transaction as of the date
of determination (assuming such Rate Management Transaction were to
be terminated as of that date).
"Net Proceeds" means (a) with respect to any Asset Disposition,
the net amount equal to the aggregate amount received in cash
(including any cash received by way of deferred payment pursuant to
a note receivable, other non-cash consideration or otherwise, but
only as and when such cash is so received) in connection with such
Asset Disposition minus the sum of (i) the reasonable fees
(including, without limitation, reasonable attorneys' fees),
commissions and other out-of-pocket expenses (as evidenced by
supporting documentation provided to the Agent) incurred by the
Borrower or any Subsidiary in connection with such Asset Disposition
and (ii) federal, state and local taxes incurred in connection with
such sale, whether payable at such time or thereafter; or (b) with
respect to the issuance of any equity security or the incurrence of
any Indebtedness by the Borrower or any of its Subsidiaries, the net
amount equal to the aggregate amount received in cash in connection
with such issuance or incurrence minus the reasonable fees
(including, without limitation, reasonable attorneys' fees),
commissions and other out-of-pocket expenses (as evidenced by
supporting documentation provided to the Agent) incurred by the
Borrower or such Subsidiary in connection with such issuance or
incurrence.
"Net Rentals" means, for any period of determination, the
greater of (i) $0 or (ii) the difference between Operating Lease
expenses and income from subleases of the Borrower and its
Subsidiaries on a consolidated basis during such period.
"Non-U.S. Lender" is defined in Section 3.5(iv).
"Note" means any Revolving Note, the Swing Line Note or any
Term Note.
"Notice of Assignment" is defined in Section 12.3.2.
"Obligations" means all unpaid principal of and accrued and
unpaid interest on the Loans, all Reimbursement Obligations, all
accrued and unpaid fees and all expenses, reimbursements,
indemnities and other obligations of the Borrower to the Lenders or
to any Lender, the Agent, the Swing Line Lender, the LC Issuer or
any indemnified party arising under the Loan Documents.
"Off-Balance Sheet Liability" of a Person means (i) any
repurchase obligation or liability of such Person with respect to
accounts or notes receivable sold by such Person, (ii) any liability
under any Sale and Leaseback Transaction which is not a Capitalized
Lease, (iii) any liability under any so-called "synthetic lease"
transaction entered into by such Person, 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 balance sheets of such
Person, but excluding from this clause (iv) Operating Leases.
"Official Body" means any national, federal, state, local or
other government or political subdivision or any agency, authority,
bureau, central bank, commission, department or instrumentality of
either, or any court, tribunal, grand jury or arbitrator, in each
case whether foreign or domestic.
"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 Term
Loans outstanding at such time, plus (ii) the aggregate principal
amount of its Revolving Loans outstanding at such time, plus (iii)
an amount equal to its Pro Rata Share of the LC Obligations at such
time, plus (iv) an amount equal to its Pro Rata Share of the
aggregate principal amount of Swing Line Loans outstanding at such
time.
"Outstanding Revolving 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 Pro Rata Share of the LC Obligations outstanding at such
time, plus (iii) an amount equal to its Pro Rata Share of Swing Line
Loans outstanding at such time.
"Participants" is defined in Section 12.2.1.
"Patronage Dividends" means "patronage dividends" as such term
is defined in Section 1388(a) of the Code which Patronage Dividends
may be excluded from taxable income pursuant to Section 1382(b) of
the Code.
"Payment Date" means (i) as to any Eurodollar Advance having an
Interest Period of three months or less, the last day of such
Interest Period, (ii) as to any Eurodollar Advance having an
Interest Period longer than three months, each day which is the last
day of each three-month interval during such Interest Period, (iii)
as to any Floating Rate Advance, the last day of each month while
such Advance is outstanding and the date of the final principal
payment in respect thereof.
"PBGC" means the Pension Benefit Guaranty Corporation, or any
successor thereto.
"Permitted Liens" means:
(i) Liens for taxes, assessments, or similar
charges, incurred in the ordinary course of business and which are
not yet due and payable;
(ii) Pledges or deposits made in the ordinary course
of business to secure payment of workers' compensation, or to
participate in any fund in connection with workers' compensation,
unemployment insurance, old-age pensions or other social security
programs;
(iii) Liens of mechanics, materialmen,
warehousemen, carriers, or other like Liens, securing obligations
incurred in the ordinary course of business that are not yet due and
payable and Liens of landlords securing obligations to pay lease
payments that are not yet due and payable or in default;
(iv) Good-faith pledges or deposits made in the
ordinary course of business to secure performance of bids, tenders,
contracts (other than for the repayment of borrowed money) or
leases, not in excess of the aggregate amount due thereunder, or to
secure statutory obligations, or surety, appeal, indemnity,
performance or other similar bonds required in the ordinary course
of business;
(v) Encumbrances consisting of zoning restrictions,
easements or other restrictions on the use of real property, none of
which materially impairs the use of such property or the value
thereof, and none of which is violated in any material respect by
existing or proposed structures or land use;
(vi) Liens, security interests and mortgages in favor
of the Agent for the benefit of the Lenders;
(vii) Liens on property leased by a Loan Party
under Capitalized and Operating Leases securing obligations of such
Loan Party to the lessor under such leases;
(viii) Any Lien existing on the date of this
Agreement and described on Schedule 1.1(B), provided that the
principal amount secured thereby is not hereafter increased, and no
additional assets become subject to such Lien;
(ix) Purchase Money Security Interests in the
ordinary course of business, provided that the aggregate amount of
loans and deferred payments secured by such Purchase Money Security
Interests shall not exceed $25,000,000 (excluding for the purpose of
this computation any loans or deferred payments secured by Liens
described on Schedule 1.1(B));
(x) Liens securing Indebtedness permitted under
Section 6.2.1 (ix); and
(xi) The following, (A) if the validity or amount
thereof is being contested in good faith by appropriate and lawful
proceedings diligently conducted so long as levy and execution
thereon have been stayed and continue to be stayed or (B) if a final
judgment is entered and such judgment is discharged within thirty
(30) days of entry or, in the aggregate, do not materially impair
the ability of any Loan Party to perform its Obligations hereunder
or under the other Loan Documents:
(1) Claims or Liens for taxes, assessments or charges due
and payable and subject to interest or penalty, provided that
the applicable Loan Party maintains such reserves or other
appropriate provisions as shall be required by Agreement
Accounting Principles and pays all such taxes, assessments or
charges forthwith upon the commencement of proceedings to
foreclose any such Lien;
(2) Claims, Liens or encumbrances upon, and defects of
title to, real or personal property, including any attachment
of personal or real property or other legal process prior to
adjudication of a dispute on the merits;
(3) Claims of Liens of mechanics, materialmen,
warehousemen, carriers, or other statutory nonconsensual Liens;
or
(4) Liens resulting from final judgments or orders
described in Section 7.9.
"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 at any time an employee pension benefit plan
(including a Multiple Employer Plan, but not a Multiemployer Plan)
which is covered by Title IV of ERISA or is subject to the minimum
funding standards under Section 412 of the Code and either (i) is
maintained by any member of the Controlled Group for employees of
any member of the Controlled Group or (ii) has at any time within
the preceding five years been maintained by any entity which was at
such time a member of the Controlled Group for employees of any
entity which was at such time a member of the Controlled Group.
"Pledge and Security Agreements" means those certain Pledge and
Security Agreements dated as of the Closing Date, executed by each
of the Loan Parties for the ratable benefit of the Lenders, as they
may be amended or modified and in effect from time to time.
"Pricing Schedule" means the Schedule 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.
"Prohibited Transaction" means any prohibited transaction as
defined in Section 4975 of the Code or Section 406 of ERISA for
which neither an individual nor a class exemption has been issued by
the United States Department of Labor.
"Pro Rata Share" means, with respect to any Lender at any time,
the percentage obtained by dividing (i) the sum of such Lender's
Term Loan and Revolving Loan Commitment at such time (in each case,
as adjusted from time to time in accordance with the provisions of
this Agreement) by (ii) the sum of the aggregate amount of all the
Term Loans outstanding hereunder at such time and the Aggregate
Revolving Loan Commitment at such time, provided, however, that if
all of the Revolving Loan Commitments are terminated pursuant to the
terms of this Agreement, then "Pro Rata Share" means, with respect
to any Lender at any time, the percentage obtained by diving (x) the
sum of such Lender's Term Loan and Revolving Loans outstanding at
such time by (y) the sum of the aggregate amount of all the Term
Loans and Revolving Loans outstanding hereunder at such time.
"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.
"Purchase Money Security Interest" means Liens upon tangible
personal property securing loans to any Loan Party or deferred
payments by such Loan Party for the purchase of such tangible
personal property.
"Purchasers" is defined in Section 12.3.1.
"Rate Management Transaction" means any transaction (including
an agreement with respect thereto) now existing or hereafter entered
into between the Borrower and any Lender or Affiliate thereof which
is a rate swap, basis swap, forward rate transaction, commodity
swap, commodity option, equity or equity index swap, equity or
equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar
transaction, forward transaction, currency swap transaction, cross-
currency rate swap transaction, currency option or any other similar
transaction (including any option with respect to any of these
transactions) or any combination thereof, whether linked to one or
more interest rates, foreign currencies, commodity prices, equity
prices or other financial measures.
"Rate Management Obligations" of a Person means any and all
obligations of such Person, whether absolute or contingent and
howsoever and whensoever created, arising, evidenced or acquired
(including all renewals, extensions and modifications thereof and
substitutions therefor), under (i) any and all Rate Management
Transactions, and (ii) any and all cancellations, buy backs,
reversals, terminations or assignments of any Rate Management
Transactions.
"Regulated Substances" means any substance, including any
solid, liquid, semisolid, gaseous, thermal, thoriated or radioactive
material, refuse, garbage, wastes, chemicals, petroleum products, by-
products, coproducts, impurities, dust, scrap, heavy metals, defined
as a "hazardous substance," "pollution," "contaminant," "hazardous
or toxic substance," "extremely hazardous substance," "toxic
chemical," "toxic waste," "hazardous waste," "industrial waste,"
"residual water," "solid waste," "municipal waste," "mixed waste,"
"infectious waste," "chemotherapeutic waste," "medical waste," or
"regulated substance" or any related materials, substances or wastes
as now or hereafter defined pursuant to any Environmental Laws,
ordinances, rules, regulations or other directives of any Official
Body, the generation, manufacture, extraction, processing,
distribution, treatment, storage, disposal, transport, recycling,
reclamation, use, reuse, spilling, leaking, dumping, injection,
pumping, leaching, emptying, discharge, escape, release or other
management or mismanagement of which is regulated by the
Environmental Laws.
"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 interpretation of
said Board of Governors relating to reserve requirements applicable
to member banks of the Federal Reserve System.
"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 for
the purpose of purchasing or carrying margin stocks applicable to
member banks of the Federal Reserve System.
"Reimbursement Obligations" means, at any time, the aggregate
of all obligations of the Borrower then outstanding under Section
2.19 to reimburse the LC Issuer for amounts paid by the LC Issuer in
respect of any one or more drawings under Facility LCs.
"Reportable Event" means a reportable event as defined in
Section 4043 of ERISA and the regulations issued under such section,
with respect to a Plan, excluding, however, such events as to which
the PBGC has by regulation waived the requirement of Section 4043(a)
of ERISA that it be notified within 30 days of the occurrence of
such event, provided, however, that a failure to meet the minimum
funding standard of Section 412 of the Code and of Section 302 of
ERISA shall be a Reportable Event regardless of the issuance of any
such waiver of the notice requirement in accordance with either
Section 4043(a) of ERISA or Section 412(d) of the Code.
"Reports" is defined in Section 9.6.
"Required Lenders" means Lenders in the aggregate having at
least 51% of the Aggregate Commitment or, if the Aggregate
Commitment has been terminated, Lenders in the aggregate holding at
least 51% 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.
"Revolving Loan" is defined in Section 2.2.1.
"Revolving Loan Commitment" means, for each Lender, the
obligation of such Lender to make Revolving Loans to, participate in
Facility LCs issued upon the application of, and participate in the
making of Swing Line Loans to, the Borrower in an amount not
exceeding the amount set forth adjacent to the caption "Revolving
Loan Commitment" opposite its signature below or as set forth in any
Notice of Assignment relating to any assignment that has become
effective pursuant to Section 12.3.2, as such amount may be modified
from time to time pursuant to the terms hereof.
"Revolving Loan Pro Rata Share" means, with respect to any
Lender at any time, the percentage obtained by dividing (i) the
amount of such Lender's Revolving Loan Commitment at such time (in
each case, as adjusted from time to time in accordance with the
provisions of this Agreement) by (ii) the Aggregate Revolving Loan
Commitment at such time, provided, however, that if all of the
Revolving Loan Commitments are terminated pursuant to the terms of
this Agreement, then "Revolving Loan Pro Rata Share" means, with
respect to any Lender at any time, the percentage obtained by
dividing (x) the amount of such Lender's Revolving Loans outstanding
at such time by (y) the aggregate amount of all the Revolving Loans
outstanding hereunder at such time.
"Revolving Loan Termination Date" means March 31, 2005 or any
earlier date upon which the Aggregate Revolving Loan Commitment is
reduced to zero or otherwise terminated pursuant to the terms
hereof.
"Revolving Note" means any promissory note evidencing the
Revolving Loans issued at the request of a Lender pursuant to
Section 2.13 in the form of Exhibit E-1.
"S&P" means Standard and Poor's Ratings Services, a division of
The McGraw Hill Companies, Inc.
"Sale and Leaseback Transaction" means any sale or other
transfer of Property by any Person with the intent to lease such
Property as lessee.
"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.
"Section 20 Subsidiary" means the Subsidiary of the bank
holding company controlling any bank, which Subsidiary has been
granted authority by the Federal Reserve Board to underwrite and
deal in certain Ineligible Securities.
"Secured Obligations" means, collectively, (i) the Obligations
and (ii) all Rate Management Obligations owing to one or more
Lenders.
"Seller Agreements" means collectively, the Mega Marts
Agreement, the Ultra Mart Agreement, and that certain Asset Purchase
Agreement dated as of March 31, 2000 among the Borrower, NDC, Inc.
and Mega Marts, Inc.
"Single Employer Plan" means a Plan maintained by the Borrower
or any member of the Controlled Group for employees of the Borrower
or any member of the Controlled Group.
"Subordinated Indebtedness" of a Person means any Indebtedness
of such Person the payment of which is subordinated to payment of
the Secured Obligations to the written satisfaction of the Required
Lenders, including without limitation the Indebtedness evidenced by
the Mega Marts Notes which is subordinated to the Secured
Obligations pursuant to the terms of the Subordination Agreement;
provided, however, that the term "Subordinated Indebtedness" shall
not be deemed to include up to $1,000,000 (plus interest accrued
thereon at a rate not to exceed 8.25% per annum) in respect of
noncompetition payments to be made by the Borrower to certain former
shareholders of Mega Marts, Inc. pursuant to the terms of the Mega
Marts Agreement.
"Subordination Agreement" means that certain Subordination
Agreement dated as of the Closing Date, executed by the Borrower,
the Agent on behalf of the Lenders, and certain former shareholders
of Mega Marts, Inc.
"Subsidiary" of a Person means (i) any corporation more than
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 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 each direct and
indirect Subsidiary of the Borrower.
"Substantial Portion" means, with respect to the Property of
the Borrower and its Subsidiaries, Property which (i) represents
more than 10% of the consolidated assets of the Borrower and its
Subsidiaries as would be shown in the consolidated financial
statements of the Borrower and its Subsidiaries as at the beginning
of the twelve-month period ending with the month in which such
determination is made, or (ii) is responsible for more than 10% of
the consolidated net sales or of the consolidated net income of the
Borrower and its Subsidiaries as reflected in the financial
statements referred to in clause (i) above.
"Swing Line Commitment" means the obligation of the Swing Line
Lender to make Swing Line Loans up to a maximum principal amount of
$5,000,000 at any one time outstanding
"Swing Line Lender" means Bank One or such other Lender that
may succeed to its rights and obligations pursuant to the terms of
this Agreement .
"Swing Line Loan" means a Loan made available to the Borrower
by the Swing Line Lender pursuant to Section 2.3 hereof.
"Swing Line Note" means any note evidencing the Swing Line
Loans issued at the request of the Agent pursuant to Section 2.13 in
the form of Exhibit E-2.
"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 and Other Taxes.
"Term Loan" is defined in Section 2.1.1.
"Term Loan Commitment" means, for each Lender, the obligation
of such Lender to make Term Loans not exceeding the amount set forth
adjacent to the caption "Term Loan Commitment" opposite its
signature below or as set forth in any Notice of Assignment relating
to any assignment that has become effective pursuant to Section
12.3.2, as such amount may be modified from time to time pursuant to
the terms hereof.
"Term Loan Termination Date" means March 31, 2007.
"Term Note" means any promissory note evidencing a Term Loan
issued at the request of a Lender pursuant to Section 2.13 in the
form of Exhibit E-3.
"Transferee" is defined in Section 12.4.
"Type" means, with respect to any Credit Extension, its nature
as a Floating Rate Advance or a Eurodollar Advance.
"Ultra Mart Agreement" means that certain Asset Purchase
Agreement dated as of December 23, 1999 among the Borrower, Ultra
Mart, Inc., Xxxxxx X. Xxxxxxx, Xxxxx X. Xxxxx and Ultra Mart Foods,
Inc.
"Unmatured Default" means an event which but for the lapse of
time or the giving of notice, or both, would constitute a Default.
The foregoing definitions shall be equally applicable to both
the singular and plural forms of the defined terms. Terms defined
in the Wisconsin Uniform Commercial Code which are not otherwise
defined in this Agreement are used herein as defined in the
Wisconsin Commercial Code as in effect on the date hereof.
ARTICLE II
THE CREDITS
------------
2.1. Term Loans.
2.1.1. Making the Term Loans. Each Lender severally
agrees to make, on the Closing Date, a term loan to the Borrower in
an amount equal to such Lender's Term Loan Commitment (each
individually, a "Term Loan" and, collectively, the "Term Loans").
All Term Loans shall be made by the Lenders on the Closing Date
simultaneously, it being understood that no Lender shall be
responsible for any failure by any other Lender to perform its
obligation to make any Term Loan hereunder nor shall the Term Loan
Commitment of any Lender be increased or decreased as a result of
any such failure.
2.1.2. Interest Repayment Dates; Repayment of the Term
Loans. The Term Loans shall be repaid as follows: from June 30,
2000 through and including March 31, 2002, the accrued but unpaid
interest on the Term Loans shall be repaid on each Payment Date; and
(ii) thereafter, the accrued but unpaid interest on the Term Loans
shall be repaid on each Payment Date and the outstanding principal
amount of the Term Loans shall be repaid in consecutive quarterly
installments commencing on June 30, 2002, in the aggregate amounts
set forth below, and continuing thereafter until the Term Loan
Termination Date, and the Term Loans shall be permanently reduced by
the amount of each such installment on the date payment thereof is
made hereunder.
Principal Payment Date Term Loan Installment Amount
---------------------- ----------------------------
June 30, 2002 $4,000,000
September 30, 2002 $4,000,000
December 31, 2002 $4,000,000
March 31, 2003 $4,000,000
June 30, 2003 $4,000,000
September 30, 2003 $4,000,000
December 31, 2003 $4,000,000
March 31, 2004 $4,000,000
June 30, 2004 $4,000,000
September 30, 2004 $4,000,000
December 31, 2004 $4,000,000
March 31, 2005 $4,000,000
June 30, 2005 $4,000,000
September 30, 2005 $4,000,000
December 31, 2005 $4,000,000
March 31, 2006 $4,000,000
June 30, 2006 $4,000,000
September 30, 2006 $4,000,000
December 31, 2006 $4,000,000
March 31, 2007 $4,000,000
Notwithstanding the foregoing, the then outstanding principal
balance of the Term Loans and accrued but unpaid interest thereon,
if any, shall be due and payable on the Term Loan Termination Date.
No portion of any Term Loan shall be reborrowed once it is repaid.
In addition to the foregoing installment payments, the Borrower may
make voluntary prepayments and shall make mandatory prepayments as
described in Section 2.7.2.
2.2. Revolving Loans.
2.2.1. Making the Revolving Loans. From and including
the Closing Date and prior to the Revolving Loan Termination Date,
each Lender severally agrees, on the terms and conditions set forth
in this Agreement, to: (i) make revolving loans to the Borrower from
time to time in an amount not to exceed in the aggregate at any one
time outstanding the amount of its Revolving Loan Commitment (each
individually, a "Revolving Loan" and, collectively, the "Revolving
Loans"); and (ii) to participate in Facility LCs issued pursuant to
Section 2.19 upon the request of the Borrower, provided, that after
giving effect to the making of each such Revolving Loan and the
issuance of each such Facility LC, such Lender's Outstanding
Revolving Credit Exposure shall not exceed its Revolving Loan
Commitment. Each Advance under this Section 2.2.1 shall consist of
Revolving Loans made by each Lender ratably in proportion to such
Lender's respective Revolving Loan Pro Rata Share, it being
understood that no Lender shall be responsible for any failure by
any other Lender to perform its obligation to make any Revolving
Loan hereunder nor shall the Revolving Loan Commitment of any Lender
be increased or decreased as a result of any such failure. Subject
to the terms of this Agreement, the Borrower may borrow, repay and
reborrow Revolving Loans at any time prior to the Revolving Loan
Termination Date. The Revolving Loan Commitments of the Lenders
shall expire on the Revolving Loan Termination Date.
2.2.2. Interest Repayment Dates; Repayment of the
Revolving Loans2.2.Required Payments; Termination. The accrued but
unpaid interest on the Revolving Loans shall be repaid on each
Payment Date. On the Revolving Loan Termination Date, the Borrower
shall repay in full the outstanding principal balance of the
Revolving Loans and accrued but unpaid interest thereon.
2.3 Swing Line Loans.
2.3.1. 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 Credit
Extension hereunder, the satisfaction of the conditions precedent
set forth in Section 4.1, as well, from and including the date of
this Agreement and prior to the Revolving Loan Termination Date, the
Swing Line Lender agrees, on the terms and conditions set forth in
this Agreement, to make Swing Line Loans to the Borrower from time
to time in an aggregate principal amount not to exceed the Swing
Line Commitment, provided that the Aggregate Outstanding Revolving
Credit Exposure shall not at any time exceed the Aggregate Revolving
Loan Commitment, and provided further that the sum of (i) the Swing
Line Lender's Revolving Loan Pro Rata Share of the Swing Line Loans
plus (ii) the outstanding Revolving Loans made by the Swing Line
Lender pursuant to Section 2.2, shall not exceed the Swing Line
Lender's Revolving Loan Commitment at such time. Subject to the
terms of this Agreement, the Borrower may borrow, repay and reborrow
Swing Line Loans at any time prior to the Revolving Loan Termination
Date.
2.3.2. Borrowing Notice. The Borrower shall deliver to
the Agent and the Swing Line Lender a Borrowing Notice, signed by
it, not later than 3:00 p.m. (Chicago time) on the Borrowing Date of
each Swing Line Loan (or at such later time as may be acceptable to
the Swing Line Lender in its sole discretion), in each case,
specifying (i) the applicable Borrowing Date (which date shall be a
Business Day and which may be the same date as the date the
Borrowing Notice is given and (ii) the aggregate amount of the
requested Swing Line Loan, which shall be an amount not less than
$500,000. The Swing Line Loans shall bear interest at the Floating
Rate for an interest period as agreed to by the Swing Line Lender
and the Borrower (which interest period shall not in any event
exceed five Business Days).
2.3.3. Making of Swing Line Loans. Promptly after
receipt of the Borrowing Notice under Section 2.3.2 in respect of
Swing Line Loans, the Agent shall notify each Lender by telex or
telecopy, or other similar form of transmission, of the requested
Swing Line Loan. Not later than 4:00 p.m. (Chicago time) on the
applicable Borrowing Date, the Swing Line Lender shall make
available its Swing Line Loan, in funds immediately available in
Chicago to the Agent at its address specified pursuant to Article
XIII. The Agent will promptly make the funds so received from the
Swing Line Lender available to the Borrower on the Borrowing Date at
the Agent's aforesaid address.
2.3.4. Repayment of Swing Line Loans. Each Swing Line
Loan shall be paid in full by the Borrower (x) on or before the
fifth business Day after the Borrowing Date for such Swing Line
Loan. The Borrower may at any time pay, without penalty or premium,
all outstanding Swing Line Loans upon notice to the Agent and the
Swing Line Lender. In addition, the Agent (i) may at any time in
its sole discretion with respect to any outstanding Swing Line Loan
or (ii) shall on the fifth 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
Revolving Loan Pro Rata Share of such Swing Line Loan, for the
purpose of repaying such Swing Line Loan. Not later than 2:00 p.m.
(Chicago time) on the date of any notice received pursuant to this
Section 2.3.4, each Lender shall make available its required
Revolving Loan or Revolving Loans, in funds immediately available in
Chicago to the Agent at its address specified pursuant to Article
XIII. Revolving Loans made pursuant to this Section 2.3.4 shall
initially be Floating Rate Loans and thereafter may be continued as
Floating Rate Loans or converted into Eurodollar Loans in the manner
provided in Section 2.9 and subject to the other conditions and
limitations therein set forth and 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 and 4.2, as applicable, had not
then been satisfied, such Lender's obligation to make Revolving
Loans pursuant to this Section 2.3.4 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 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 the Borrower, or (d) any other
circumstances, happening or event whatsoever. In the event that any
Lender fails to make payment to the Agent of any amount due under
this Section 2.3.4, the Agent shall be entitled to receive, retain
and apply against such obligation the principal and interest
otherwise payable to such Lender hereunder until the 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 Agent of any amount due under
this Section 2.3.4, such Lender shall be deemed, at the option of
the 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 Revolving Loan Termination Date, the Borrower
shall repay in full the outstanding principal balance of any unpaid
Swing Line Loans, together with accrued but unpaid interest thereon.
2.4. Types of Advances . (i) The Term Loans may be Floating
Rate Advances or Eurodollar Advances, or a combination thereof,
selected by the Borrower in accordance with Sections 2.8 and 2.9.
During such periods as the Term Loans shall be comprised of Floating
Rate Advances, the Term Loans shall bear interest at a per annum
rate equal to the Floating Rate. During such periods as the Term
Loans shall be comprised of Eurodollar Rate Advances, the Terms
Loans shall bear interest at a per annum rate equal to the
Eurodollar Rate. Notwithstanding the foregoing, at such time as the
Mega Marts Notes are indefeasibly paid in full or converted to
equity on terms acceptable to the Required Lenders, the Term Loans
shall bear interest at the Eurodollar Rate without reference to the
Applicable Margin.
(ii) The Revolving Loans may be Floating Rate Advances or
Eurodollar Advances, or a combination thereof, selected by the
Borrower in accordance with Sections 2.8 and 2.9. During such
periods as the Revolving Loans shall be comprised of Floating Rate
Advances, the Revolving Loans shall bear interest at a per annum
rate equal to the Floating Rate. During such periods as the
Revolving Loans shall be comprised of Eurodollar Rate Advances, the
Revolving Loans shall bear interest at a per annum rate equal to the
Eurodollar Rate.
(iii) The Swing Loans shall bear interest as set forth in
Section 2.3.2.
2.5. Commitment Fee; Reductions in Aggregate Revolving Loan
Commitment. The Borrower agrees to pay to the Agent for the
account of each Lender a commitment fee at a per annum rate equal to
the Applicable Fee Rate on the difference of (i) the average daily
Aggregate Revolving Loan Commitment minus (ii) the sum of (x) the
average daily principal amount of Revolving Loans outstanding (it
being understood that the term "Revolving Loans" does not include
Swing Line Loans) plus (y) the average daily amount of Reimbursement
Obligations, payable for the period from the date hereof to and
including the Revolving Loan Termination Date, payable in arrears on
the last day of each June, September, December and March hereafter
and on the Revolving Loan Termination Date, in each case, calculated
for the three month period ending on such date. The Borrower may
permanently reduce the Aggregate Revolving Loan Commitment in whole,
or in part ratably among the Lenders in the minimum amount of
$5,000,000 (and in integral multiples of $1,000,000 in excess
thereof) upon at least five Business Days' written notice to the
Agent, which notice shall specify the amount of any such reduction,
provided, however, that the amount of the Aggregate Revolving Loan
Commitment may not be reduced below the aggregate principal amount
of the outstanding Revolving Loans. All accrued commitment fees
shall be payable on the effective date of any termination of the
obligations of the Lenders to make Revolving Loans hereunder.
2.6. Minimum Amount of Each Advance. Each Eurodollar Advance
shall be in the minimum amount of $ 2,500,000 (and in multiples of
$500,000 if in excess thereof), and each Floating Rate Advance shall
be in the minimum amount of $1,000,000 (and in multiples of $500,000
if in excess thereof), provided, however, that any Floating Rate
Advance may be in the amount of the unused Aggregate Revolving Loan
Commitment.
2.7 Certain Principal Payments.
2.7.1 Optional Payments2.7.Optional Principal Payments.
The Borrower may from time to time pay, without penalty or premium,
all outstanding Floating Rate Advances, or, in a minimum aggregate
amount of $1,000,000 or any integral multiple of $500,000 in excess
thereof, any portion of the outstanding Floating Rate Advances upon
same-day notice to the Agent. The Borrower 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 Eurodollar Advances, or, in a minimum aggregate amount
of $1,000,000 or any integral multiple of $500,000 in excess
thereof, any portion of the outstanding Eurodollar Advances upon
five Business Days' prior notice to the Agent. Principal payments
made on the Term Loans shall be applied to the principal
installments payable under Section 2.1.2 in the inverse order of
maturity.
2.7.2 Mandatory Payments. In addition to the payments
required by Section 2.1.2, the Borrower shall make mandatory
prepayments of the outstanding principal amount of the Term Loans in
inverse order of maturity as follows:
(a) Upon receipt by Borrower or any of its Subsidiaries of
any Net Proceeds in connection with the issuance of any equity
security or debt security (such as a promissory note or other
similar instrument) by the Borrower or such Subsidiary after the
Closing Date, other than proceeds of any outstanding Indebtedness
permitted under Section 6.2.1(ix), then on the first Business Day
after such issuance, the Borrower shall repay the principal amount
of the Term Loans in inverse order of maturity in an amount equal to
100% of such Net Proceeds. Notwithstanding any term in this Section
2.7.2(a) to the contrary, the Borrower shall not be required to make
any mandatory prepayment with: (i) the first $2,000,000 of Net
Proceeds received in connection with the exercise of stock options
by officers of the Loan Parties during any fiscal year of the
Borrower or (ii) Net Proceeds received in connection with sales of
stock (A) to employees or former employees of the Borrower or its
Subsidiaries according to the Borrower's stock option plan in effect
from time to time or according to policies of the Borrower
summarized in the documents filed by the Borrower with the
Securities and Exchange Commission and (B) to retailer customers of
the Borrower and its Subsidiaries in the ordinary course of the
Borrower's business;
(b) Upon receipt by Borrower or any of its
Subsidiaries of any Net Proceeds with respect to an Asset
Disposition permitted pursuant to Section 6.2.7, then on the first
Business Day after receipt of the Net Proceeds from such Asset
Disposition, the Borrower shall repay the principal amount of the
Term Revolving Loans in inverse order of maturity in an amount equal
to 100% of such Net Proceeds. Notwithstanding any term in this
Section 2.7.2(b) to the contrary, the Borrower shall not be required
to make any mandatory prepayment with: (A) Net Proceeds received in
connection with any Asset Disposition so long as all of such Net
Proceeds are reinvested in other Property or assets to be used by
the Borrower or the applicable Subsidiary in its business operations
within 180 days of the consummation of the relevant Asset
Disposition; and (B) the first $5,000,000 of Net Proceeds received
in connection with any Asset Disposition during any fiscal year of
the Borrower that are not otherwise used to purchase replacement
Property or assets pursuant to the terms of Section 2.7.2(b)(A);
(c) Within ten days of its delivery of the financial
statements required under Section 6.3.2, the Borrower shall repay
the principal amount of the Term Loans in inverse order of maturity
as follows: (i) from the Closing Date through March 30, 2002, the
repayment required by this Section 2.7.2(c) shall be in an amount
equal to 90% of Excess Cash Flow; thereafter, (ii) if the Leverage
Ratio at the end of the Borrower's most recently ended fiscal year
(as determined by reference to the financial statements delivered
pursuant to Section 6.3.2; the "Determination Date") is equal to or
greater than 3.5 to 1.0, such repayment shall be in an amount equal
to 90% of Excess Cash Flow; (iii) if the Leverage Ratio at the
Determination Date is less than 3.5 to 1.0 but greater than or equal
to 2.75 to 1.0, such repayment shall be in an amount equal to 75% of
Excess Cash Flow; and (iv) if the Leverage Ratio at the
Determination Date is less than 2.75 to 1.0, the Borrower shall not
be required to make any repayment otherwise required by this Section
2.7.2(c).
2.8. Method of Selecting Types and Interest Periods for New
Advances. The Borrower shall select the Type of Advance and, in
the case of each Eurodollar Advance, the Interest Period applicable
thereto from time to time. The Borrower shall give the Agent
irrevocable notice (a "Borrowing Notice") not later than 11:00 a.m.
(Milwaukee time) on the Borrowing Date of each Floating Rate Advance
and three Business Days before the Borrowing Date for each
Eurodollar Advance, specifying:
(i) the Borrowing Date, which shall be a Business Day, of such
Advance,
(ii) the aggregate amount of such Advance,
(iii) the Type of Advance selected, and whether such
Advance is comprised of Term Loans or Revolving Loans, and
(iv) in the case of each Eurodollar Advance, the Interest
Period applicable thereto.
Not later than noon (Chicago time) on each Borrowing Date, each
Lender shall make available its Loan or Loans in funds immediately
available in Chicago to the Agent at its address specified pursuant
to Article XIII. The Agent will make the funds so received from the
Lenders available to the Borrower at the Agent's aforesaid address.
2.9. 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
Eurodollar Advances pursuant to this Section 2.9 or are repaid in
accordance with Section 2.7. Each Eurodollar Advance shall continue
as a Eurodollar Advance until the end of the then applicable
Interest Period therefor, at which time such Eurodollar Advance
shall be automatically converted into a Floating Rate Advance unless
(x) such Eurodollar Advance is or was repaid in accordance with
Section 2.7 or (y) the Borrower shall have given the Agent a
Conversion/Continuation Notice (as defined below) requesting that,
at the end of such Interest Period, such Eurodollar Advance continue
as a Eurodollar Advance for the same or another Interest Period.
Subject to the terms of Section 2.6, the Borrower may elect from
time to time to convert all or any part of a Floating Rate Advance
into a Eurodollar Advance. The Borrower shall give the Agent
irrevocable notice (a "Conversion/Continuation Notice") of each
conversion of a Floating Rate Advance into a Eurodollar Advance or
continuation of a Eurodollar Advance not later than 10:00 a.m.
(Chicago time) at least three Business Days 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 aggregate amount and Type of the Advance which is to
be converted or continued, and whether such Advance is comprised of
Term Loans or Revolving Loans, and
(iii)the amount of such Advance which is to be converted
into or continued as a Eurodollar Advance and the duration of the
Interest Period applicable thereto.
2.10. 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 Eurodollar Advance into a
Floating Rate Advance pursuant to Section 2.9, to but excluding the
date it is paid or is converted into a Eurodollar Advance pursuant
to Section 2.9 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 Eurodollar 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
Agent as applicable to such Eurodollar Advance based upon the
Borrower's selections under Sections 2.8 and 2.9 and otherwise in
accordance with the terms hereof. No Interest Period may end after
the Term Loan Termination Date. The Borrower shall select Interest
Periods so that it is not necessary to repay any portion of a
Eurodollar Advance prior to the last day of the applicable Interest
Period in order to make a mandatory repayment required pursuant to
Section 2.7.2.
2.11. Rates Applicable After Default. Notwithstanding
anything to the contrary contained in Section 2.8 or 2.9, during the
continuance of a Default or Unmatured Default the Required Lenders
may, at their option, by notice to the Borrower (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 no Advance may be made
as, converted into or continued as a Eurodollar Advance. During the
continuance of a Default the Required Lenders may, at their option,
by notice to the Borrower (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) each Eurodollar Advance shall bear interest
for the remainder of the applicable Interest Period at the rate
otherwise applicable to such Interest Period plus 2% per annum and
(ii) each Floating Rate Advance shall bear interest at a rate per
annum equal to the Floating Rate in effect from time to time plus 2%
per annum, provided that, during the continuance of a Default under
Section 7.6 or 7.7, the interest rates set forth in clauses (i) and
(ii) above shall be applicable to all Advances without any election
or action on the part of the Agent or any Lender.
2.12. Method of Payment. All payments of the Secured
Obligations hereunder shall be made, without setoff, deduction, or
counterclaim, in immediately available funds to the Agent at the
Agent's address specified pursuant to Article XIII, or at any other
Lending Installation of the Agent specified in writing by the Agent
to the Borrower, by noon (local time) on the date when due and shall
be applied ratably by the Agent among the Lenders. Each payment
delivered to the Agent for the account of any Lender shall be
delivered promptly by the Agent to such Lender in the same type of
funds that the Agent received at its address specified pursuant to
Article XIII or at any Lending Installation specified in a notice
received by the Agent from such Lender. The Agent is hereby
authorized to charge the account of the Borrower maintained with
Bank One for each payment of principal, interest and fees as it
becomes due hereunder.
2.13. 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 Borrower 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 Agent shall also maintain accounts in which it will
record (a) the amount of each Loan made hereunder, the Type thereof
and the Interest Period with respect thereto, (b) the amount of any
principal or interest due and payable or to become due and payable
from the Borrower to each Lender hereunder and (c) the amount of any
sum received by the Agent hereunder from the Borrower and each
Lender's share thereof.
(iii) The entries maintained in the accounts maintained
pursuant to paragraphs (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 Agent or any
Lender to maintain such accounts or any error therein shall not in
any manner affect the obligation of the Borrower to repay the
Obligations in accordance with their terms.
(iv) Any Lender may request that its Loans be evidenced by a
Note. In such event, the Borrower shall prepare, execute and
deliver to such Lender a Note payable to the order of such Lender in
the form of Exhibits E-1, E-2 and E-3. Thereafter, the Loans
evidenced by such Note and interest thereon shall at all times
(including after any assignment pursuant to Section 12.3) be
represented by one or more Notes payable to the order of the payee
named therein or any assignee pursuant to Section 12.3, 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 paragraphs (i) and (ii) above.
2.14. Telephonic Notices. The Borrower hereby authorizes
the Lenders and the Agent to extend, convert or continue Advances,
effect selections of Types of Advances and to transfer funds based
on telephonic notices made by any person or persons the Agent or any
Lender in good faith believes to be acting on behalf of the
Borrower, it being understood that the foregoing authorization is
specifically intended to allow Borrowing Notices and
Conversion/Continuation Notices to be given telephonically. The
Borrower agrees to deliver promptly to the Agent a written
confirmation, if such confirmation is requested by the Agent or any
Lender, of each telephonic notice signed by an Authorized
Representative. If the written confirmation differs in any material
respect from the action taken by the Agent and the Lenders, the
records of the Agent and the Lenders shall govern absent manifest
error.
2.15. Interest and Fee Basis. Interest in respect of
Eurodollar Advances and commitment fees shall be calculated for
actual days elapsed on the basis of a 360-day year and interest in
respect of Floating Advances shall be calculated for days elapsed on
the basis of a 365-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 noon (local time) at the place
of payment. If any payment of principal of or interest on an
Advance 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 in connection with such payment.
2.16. Notification of Advances, Interest Rates, Prepayments
and Commitment Reductions. Promptly after receipt thereof, the
Agent will notify each Lender of the contents of each Aggregate
Revolving Loan Commitment reduction notice, Borrowing Notice,
Conversion/Continuation Notice, and repayment notice received by it
hereunder. The Agent will notify each Lender of the interest rate
applicable to each Eurodollar Advance promptly upon determination of
such interest rate and will give each Lender prompt notice of each
change in the Alternate Base Rate.
2.17. Lending Installations. Each Lender may book its
Loans at any Lending Installation selected by such Lender 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 and any Notes issued hereunder shall be deemed held by each
Lender for the benefit of any such Lending Installation. Each
Lender may, by written notice to the Agent and the Borrower in
accordance with Article XIII, designate replacement or additional
Lending Installations through which Loans will be made by it and for
whose account Loan payments are to be made.
2.18. Non-Receipt of Funds by the Agent. Unless the
Borrower or a Lender, as the case may be, notifies the Agent prior
to the date on which it is scheduled to make payment to the Agent of
(i) in the case of a Lender, the proceeds of a Loan or (ii) in the
case of the Borrower, a payment of principal, interest or fees to
the Agent for the account of the Lenders, that it does not intend to
make such payment, the Agent may assume that such payment has been
made. The 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 the Borrower, as the case may
be, has not in fact made such payment to the Agent, the recipient of
such payment shall, on demand by the Agent, repay to the 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 Agent until the date the 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 days and, thereafter, the interest rate applicable to
the relevant Loan or (y) in the case of payment by the Borrower, the
interest rate applicable to the relevant Loan.
2.19. Facility LCs.
2.19.1. Issuance. The LC Issuer hereby agrees, on the
terms and conditions set forth in this Agreement, to issue standby
letters of credit (each, 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 Revolving Loan
Termination Date upon the request of the 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 $15,000,000 and (ii) the Aggregate Outstanding Revolving
Credit Exposure shall not exceed the Aggregate Revolving Loan
Commitment. No Facility LC shall have an expiry date later than the
earlier of (x) the fifth Business Day prior to the Revolving Loan
Termination Date and (y) one year after its issuance.
2.19.2. Participations. Each Lender, with respect to
the Existing Letters of Credit, hereby purchases a participation
interest in such Existing Letters of Credit, and upon the issuance
or Modification by the LC Issuer of a Facility LC in accordance with
this Section 2.19, the 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 the LC Issuer, a participation in such
Facility LC (and each Modification thereof) and the related LC
Obligations, in each case, in proportion to its Revolving Loan Pro
Rata Share. Notwithstanding any term herein to the contrary, the
parties agree that the Existing Letters of Credit shall be replaced
upon their expiration with Facility LCs.
2.19.3. Notice. Subject to Section 2.19.1, the Borrower
shall give the LC Issuer notice prior to 10:00 a.m. (Chicago time)
at least five 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 LC Issuer shall promptly
notify the Agent, and the 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 the LC Issuer of any Facility LC shall, in addition
to the conditions precedent set forth in Article IV (the
satisfaction of which the LC Issuer shall have no duty to
ascertain), be subject to the conditions precedent that such
Facility LC shall be satisfactory to the LC Issuer and that the
Borrower shall have executed and delivered such application
agreement and/or such other instruments and agreements relating to
such Facility LC as the 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.
2.19.4. LC Fees. The Borrower shall pay to the Agent,
for the account of the Lenders ratably in accordance with their
respective Revolving Loan Pro Rata Shares, with respect to each
standby Facility LC, a letter of credit fee at a per annum rate
equal to the Applicable Margin for Eurodollar Loans in effect from
time to time on the average daily undrawn stated amount under such
standby Facility LC, such fee to be payable in arrears on each
Payment Date (an "LC Fee"). The Borrower shall also pay to the LC
Issuer for its own account (x) at the time of issuance of each
Facility LC, a fronting fee at the rate of .125% of the face amount
of such Facility LC per annum, and (y) documentary and processing
charges in connection with the issuance or Modification of and draws
under Facility LCs in accordance with the LC Issuer's standard
schedule for such charges as in effect from time to time.
2.19.5. Administration; Reimbursement by Lenders. Upon
receipt from the beneficiary of any Facility LC of any demand for
payment under such Facility LC, the LC Issuer shall notify the Agent
and the Agent shall promptly notify the Borrower and each other
Lender as to the amount to be paid by the LC Issuer as a result of
such demand and the proposed payment date (the "LC Payment Date").
The responsibility of the LC Issuer to the Borrower and each Lender
shall be only to determine that the documents (including each demand
for payment) delivered under each Facility LC in connection with
such presentment shall be in conformity in all material respects
with such Facility LC. The LC Issuer shall endeavor to exercise the
same care in the issuance and administration of the Facility LCs 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 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 the LC Issuer on demand for (i) such Lender's Revolving
Loan Pro Rata Share of the amount of each payment made by the LC
Issuer under each Facility LC to the extent such amount is not
reimbursed by the Borrower pursuant to Section 2.19.6 below, plus
(ii) interest on the foregoing amount to be reimbursed by such
Lender, for each day from the date of the 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.
2.19.6. Reimbursement by Borrower. The Borrower shall
be irrevocably and unconditionally obligated to reimburse the LC
Issuer on or before the applicable LC Payment Date for any amounts
to be paid by the LC Issuer upon any drawing under any Facility LC,
without presentment, demand, protest or other formalities of any
kind; provided that neither the Borrower nor any Lender shall hereby
be precluded from asserting any claim for direct (but not
consequential) damages suffered by the Borrower or such Lender to
the extent, but only to the extent, caused by (i) the willful
misconduct or gross negligence of the LC Issuer in determining
whether a request presented under any Facility LC issued by it
complied with the terms of such Facility LC or (ii) the 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. All such amounts paid by the LC
Issuer and remaining unpaid by the Borrower shall bear interest,
payable on demand, for each day until paid at a rate per annum equal
to (x) the rate applicable to Floating Rate Advances for such day if
such day falls on or before the applicable LC Payment Date and (y)
the sum of 2% plus the rate applicable to Floating Rate Advances for
such day if such day falls after such LC Payment Date. The LC
Issuer will pay to each Lender ratably in accordance with its
Revolving Loan Pro Rata Share all amounts received by it from the
Borrower for application in payment, in whole or in part, of the
Reimbursement Obligation in respect of any Facility LC issued by the
LC Issuer, but only to the extent such Lender has made payment to
the LC Issuer in respect of such Facility LC pursuant to Section
2.19.5. Subject to the terms and conditions of this Agreement
(including without limitation, the submission of a Borrowing Notice
in compliance with Section 2.8 and the satisfaction of the
applicable conditions precedent set forth in Article IV), the
Borrower may request a Revolving Advance hereunder for the purpose
of satisfying any Reimbursement Obligation.
2.19.7. Obligations Absolute . The Borrower's
obligations under this Section 2.19 shall be absolute and
unconditional under any and all circumstances and irrespective of
any setoff, counterclaim or defense to payment which the Borrower
may have or have had against the LC Issuer, any Lender or any
beneficiary of a Facility LC. The Borrower further agrees with the
LC Issuer and the Lenders that the LC Issuer and the Lenders shall
not be responsible for, and the Borrower's Reimbursement Obligation
in respect of any Facility LC shall not 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 the Borrower, any of its Affiliates, the
beneficiary of an Facility LC or any financing institution or other
party to whom any Facility LC may be transferred or any claims or
defenses whatsoever of the Borrower or of any of its Affiliates
against the beneficiary of any Facility LC or any such transferee.
The LC Issuer shall not be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any
message or advice, however transmitted, in connection with any
Facility LC, other than for any of the foregoing which are the
result of the LC Issuer's gross negligence or willful misconduct.
The Borrower agrees that any action taken or omitted by the 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 Borrower
and shall not put the LC Issuer or any Lender under any liability to
the Borrower. The LC Issuer agrees to comply with the terms of each
Facility LC. Nothing in this Section 2.19.7 is intended to limit
the right of the Borrower to make a claim against the LC Issuer for
damages as contemplated by the proviso to the first sentence of
Section 2.19.6.
2.19.8. Actions of LC Issuer. The LC Issuer shall be
entitled to rely, and shall be fully protected in relying, upon any
Facility LC, draft, writing, resolution, notice, consent,
certificate, 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
the LC Issuer. The 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 2.19, the 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.
2.19.9. Indemnification. The Borrower hereby agrees to
indemnify and hold harmless each Lender, the LC Issuer and the
Agent, and their respective directors, officers, agents and
employees from and against any an all claims and damages, losses,
liabilities, costs or expenses which such Lender, the LC Issuer or
the Agent may incur (or which may be claimed against such Lender,
the LC Issuer or the 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 expense
(including reasonable counsel fees and disbursements) which the 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 the
LC Issuer hereunder (but nothing herein contained shall affect any
rights the Borrower may have against any defaulting Lender) or (ii)
by reason of or on account of the 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 the LC Issuer, evidencing the appointment of such
successor Beneficiary; provided that the Borrower shall not be
required to indemnify any Lender, the LC Issuer or the 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 LC Issuer in determining whether a
request presented under any Facility LC complied with the terms of
such Facility LC or (y) the LC Issuer's failure to pay under any
Facility LC after the presentation to it of a request strictly
complying with the terms and conditions of such Facility LC or (z)
the LC Issuer's failure to comply with the terms of a Facility LC.
Nothing in this Section 2.19.9 is intended to limit the obligations
of the Borrower under any other provisions of this Agreement.
2.19.10. Lenders' Indemnification. Each Lender shall,
ratably in accordance with its Revolving Loan Pro Rata Share,
indemnify the LC Issuer, its affiliates and their respective
directors, officers, agents and employees (to the extent not
reimbursed by the Borrower) 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 LC Issuer's failure to
pay under any Facility LC after the presentation to it of a request
strictly complying with the terms and conditions of the Facility LC)
that such indemnitees may suffer or incur in connection with this
Section 2.19 or any action taken or omitted by such indemnitees
hereunder.
2.19.11. Facility LC Collateral Account. The Borrower
agrees that it will, upon the occurrence and during the continuance
of a Default, and subject to the terms of Section 8.1, maintain a
special collateral account pursuant to arrangements satisfactory to
the Agent (the "Facility LC Collateral Account") at the Agent's
office at the address specified pursuant to Article XIII, in the
name of such Borrower but under the sole dominion and control of the
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. The
Borrower hereby pledges, assigns and grants to the Agent, on behalf
of and for the ratable benefit of the Lenders and the LC Issuer, a
security interest in all of the 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 Secured Obligations. The 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.
2.19.12. Rights as a Lender. In its capacity as a
Lender, the LC Issuer shall have the same rights and obligations as
any other Lender.
2.20. Replacement of Lender. If the Borrower is required
pursuant to Section 3.1, 3.2 or 3.5 to make any additional payment
to any Lender or if any Lender's obligation to make or continue, or
to convert Floating Rate Advances into, Eurodollar Advances shall be
suspended pursuant to Section 3.3 (any Lender so affected an
"Affected Lender"), the Borrower may elect, if such amounts continue
to be charged or such suspension is still effective, to replace such
Affected Lender as a Lender party to this Agreement, provided that
no Default or Unmatured Default shall have occurred and be
continuing at the time of such replacement, and provided further
that, concurrently with such replacement, (i) another bank or other
entity which is reasonably satisfactory to the Borrower and the
Agent shall agree, as of such date, to purchase for cash the
Advances and other Obligations due to the Affected Lender pursuant
to an assignment substantially in the form of Exhibit 12.3.1 and to
become a Lender for all purposes under this Agreement and to assume
all obligations of the Affected Lender to be terminated as of such
date and to comply with the requirements of Section 12.3 applicable
to assignments, and (ii) the Borrower shall pay to such Affected
Lender in same day funds on the day of such replacement (A) all
interest, fees and other amounts then accrued but unpaid to such
Affected Lender by the Borrower hereunder to and including the date
of termination, including without limitation payments due to such
Affected Lender under Sections 3.1, 3.2 and 3.5, and (B) an amount,
if any, equal to the payment which would have been due to such
Lender on the day of such replacement under Section 3.4 had the
Loans of such Affected Lender been prepaid on such date rather than
sold to the replacement Lender.
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 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 the
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 the LC Issuer to any Taxes, or changes the basis of taxation of
payments (other than with respect to Excluded Taxes) to any Lender
or the LC Issuer in respect of its Eurodollar 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
the LC Issuer (other than reserves and assessments taken into
account in determining the interest rate applicable to Eurodollar
Advances), or
(iii) imposes any other condition the result of which is to
increase the cost to any Lender or any applicable Lending
Installation or the LC Issuer of making, funding or maintaining its
Eurodollar Loans, or of issuing or participating in Facility LCs, or
reduces any amount receivable by any Lender or any applicable
Lending Installation or the LC Issuer in connection with its
Eurodollar Loans, Facility LCs or participations therein, or
requires any Lender or any applicable Lending Installation or the LC
Issuer to make any payment calculated by reference to the amount of
Eurodollar Loans, Facility LCs or participations therein held or
interest received by it, by an amount deemed material by such Lender
or the 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 the LC Issuer, as the case may be, of making
or maintaining its Eurodollar Loans or Commitment or of issuing or
participating in the Facility LCs or to reduce the return received
by such Lender or applicable Lending Installation or the LC Issuer,
as the case may be, in connection with such Eurodollar Loans,
Commitment, Facility LCs or participations therein, then, within 15
days of demand by such Lender or the LC Issuer, as the case may be,
the Borrower shall pay such Lender or the LC Issuer, as the case may
be, such additional amount or amounts as will compensate such Lender
or the 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
the LC Issuer determines the amount of capital required or expected
to be maintained by such Lender or the LC Issuer, any Lending
Installation of such Lender or the LC Issuer, or any corporation
controlling such Lender or LC Issuer is increased as a result of a
Change, then, within 15 days of demand by such Lender or LC Issuer,
the Borrower shall pay such Lender or the 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 the 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 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 or change in 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 the
LC Issuer or any Lending Installation or any corporation controlling
any Lender or the 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 transition rules, and
any amendments to such regulations adopted prior to the date of this
Agreement.
3.3. Availability of Types of Advances. If any Lender
determines that maintenance of its Eurodollar Loans at a suitable
Lending Installation would violate any applicable law, rule,
regulation, or directive, whether or not having the force of law, or
if the Required Lenders determine that (i) deposits of a type and
maturity appropriate to match fund Eurodollar Advances are not
available or (ii) the interest rate applicable to Eurodollar
Advances does not accurately reflect the cost of making or
maintaining Eurodollar Advances, then the Agent shall suspend the
availability of Eurodollar Advances and require any affected
Eurodollar 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 Eurodollar
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 Eurodollar Advance is not made on the date specified
by the Borrower for any reason other than default by the Lenders,
the Borrower 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 Eurodollar Advance.
3.5. Taxes. (i) All payments by the Borrower to or for the
account of any Lender, the LC Issuer or the 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 the Borrower shall
be required by law to deduct any Taxes from or in respect of any sum
payable hereunder to any Lender, the LC Issuer or the 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, the LC
Issuer or the Agent (as the case may be) receives an amount equal to
the sum it would have received had no such deductions been made, (b)
the Borrower shall make such deductions, (c) the Borrower shall pay
the full amount deducted to the relevant authority in accordance
with applicable law and (d) the Borrower shall furnish to the Agent
the original copy of a receipt evidencing payment thereof within 30
days after such payment is made.
(ii) In addition, the Borrower hereby agrees 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, but excluding
Excluded Taxes ("Other Taxes").
(iii) The Borrower hereby agrees to indemnify the Agent, the
LC Issuer 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 by the
Agent, the LC Issuer 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 30 days of the date the Agent, the LC Issuer 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 less than ten Business Days after
the date of this Agreement, (i) deliver to each of the Borrower and
the Agent two duly completed copies of United States Internal
Revenue Service Form 1001 or 4224, 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 Borrower and the 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 Borrower and the 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 Borrower or the 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 Borrower
and the 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 Borrower 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 Borrower 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 Borrower (with a
copy to the 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.
(vii) If the U.S. Internal Revenue Service or any other
governmental authority of the United States or any other country or
any political subdivision thereof asserts a claim that the 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 Agent
of a change in circumstances which rendered its exemption from
withholding ineffective, or for any other reason), such Lender shall
indemnify the Agent fully for all amounts paid, directly or
indirectly, by the Agent as tax, withholding therefor, or otherwise,
including penalties and interest, and including taxes imposed by any
jurisdiction on amounts payable to the Agent under this subsection,
together with all costs and expenses related thereto (including
attorneys fees and time charges of attorneys for the Agent, which
attorneys may be employees of the Agent). The obligations of the
Lenders under this Section 3.5(vii) shall survive the payment of the
Secured 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 Eurodollar Loans to reduce
any liability of the Borrower to such Lender under Sections 3.1, 3.2
and 3.5 or to avoid the unavailability of Eurodollar 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 Borrower (with a
copy to the Agent) as to the amount due, if any, under Section 3.1,
3.2, 3.4 or 3.5. 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
Borrower in the absence of manifest error. Determination of amounts
payable under such Sections in connection with a Eurodollar Loan
shall be calculated as though each Lender funded its Eurodollar Loan
through the purchase of a deposit of the type and maturity
corresponding to the deposit used as a reference in determining the
Eurodollar 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 Borrower of such written statement. The
obligations of the Borrower under Sections 3.1, 3.2, 3.4 and 3.5
shall survive payment of the Secured Obligations and termination of
this Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
--------------------
4.1. Initial Credit Extension. (a) The Lenders shall not be
required to make the initial Credit Extension hereunder unless the
Borrower has furnished to the Agent with sufficient copies for the
Lenders:
(i) This Agreement, executed by an Authorized
Representative of each party hereto.
(ii) Any Notes requested by a Lender pursuant to
Section 2.13 payable to the order of each such
requesting Lender executed by an Authorized
Representative of the maker thereof.
(iii) The Pledge and Security
Agreements, together with UCC financing statements
and stock certificates representing all of the issued
and outstanding capital stock of each of the
Guarantors (with stock powers duly endorsed in
blank), in each case, executed by an Authorized
Representative of each party thereto.
(iv) The Mortgages with respect to the real
property identified on Schedule 4.1 (iv), in each
case executed by an Authorized Representative of each
party thereto, together with such surveys and title
insurance policies as the Agent may require.
(v) The Guaranty executed by an Authorized
Representative of each of the Guarantors.
(vi) The Intercompany Subordination Agreement
and the Subordination Agreement, each executed by an
Authorized Representative or authorized
representative of each party thereto.
(vii) A true and complete copy of the
Seller Agreements and the Mega Marts Notes, which
Seller Agreements and Mega Marts Notes shall be in
form and substance reasonably satisfactory to the
Agent and the Required Lenders, together with a
certificate executed by an Authorized Person of the
Borrower, certifying that the transactions
contemplated by the Seller Agreements have been
consummated substantially in accordance with their
terms.
(viii) Copies of the articles or certificate
of incorporation of the Borrower and each of the
Guarantors, together with all amendments, and a
certificate of good standing or current status, each
certified by the appropriate governmental officer in
their respective jurisdiction of incorporation.
(ix) Copies, certified by the Secretary or
Assistant Secretary of the Borrower and each of the
Guarantors, of their respective by-laws and of their
respective Board of Directors' resolutions and of
resolutions or actions of any other body authorizing
the execution of the Loan Documents to which the
Borrower and each of the other Loan Parties is a
party.
(x) Incumbency certificates, executed by the
Secretary or Assistant Secretary of the Borrower and
each of the Guarantors, which shall identify by name
and title and bear the signatures of the Authorized
Representatives and any other officers of the
Borrower and the Guarantors authorized to sign the
Loan Documents to which each of the Borrower and the
Guarantors is a party, upon which certificate the
Agent and the Lenders shall be entitled to rely until
informed of any change in writing by the Borrower or
a Guarantor.
(xi) A certificate, signed by the chief
financial officer of the Borrower, stating that on
the initial Credit Extension Date no Default or
Unmatured Default has occurred and is continuing and
that there has been no material adverse change in the
business, condition (financial or otherwise),
operations, performance, Properties or prospects of
the Loan Parties since January 1, 2000.
(xii) A written opinion of the Loan Parties'
counsel, addressed to the Lenders in substantially
the form of Exhibit 4.1(xii).
(xiii) Written money transfer instructions,
in substantially the form of Exhibit 4.1(xiii),
addressed to the Agent and signed by an Authorized
Representative, together with such other related
money transfer authorizations as the Agent may have
reasonably requested.
(xiv) Evidence that there is no suit,
action, injunction or restraining order which, in the
reasonable judgment of the Agent: (a) seeks to
prohibit the making of the Loans, and (b) that if
adversely determined against any Loan Party, would
have a Material Adverse Effect.
(xv) Information satisfactory to the Agent
and the Required Lenders regarding the Agent's due
diligence investigation of the Loan Parties,
including without limitation, information pertaining
to the Loan Parties' Contingent Obligations,
contractual obligations, compliance with
Environmental Laws (including compliance with the
terms set forth in the Agent's Environmental Policy)
and other legal (including all applicable
requirements of Regulations U, T and X of the Board
of Governors of the Federal Reserve System) and
regulatory matters, joint venture liability, products
liability exposure, and intellectual property and
license agreements.
(xvi) Audited financial statements for the
1997 and 1998 fiscal year ends of each of Mega Marts,
Inc. and Ultra Mart, Inc., and unaudited financial
statements for the 1999 fiscal year end of Ultra
Mart, Inc.
(xvii) Pro forma opening financial statements
and updated projections giving effect to the
Borrower's acquisitions of Mega Marts, Inc. and Ultra
Mart, Inc., together with such other information as
the Agent may reasonably request to confirm the tax,
legal and business assumptions made in such pro forma
opening financial statements and updated projections
(a) which must not be materially less favorable, in
the Agent's reasonable judgment, than the projections
previously delivered by the Borrower to the Agent and
(b) which must demonstrate, in the Agent's reasonable
judgment, that the Borrower can repay its Obligations
as and when due and can comply with the financial
covenants set forth in Section 6.2.14 of this
Agreement.
(xviii) Evidence satisfactory to the Agent
that all of the Loan Parties' obligations under all
existing bank credit facilities and all senior note
agreements have been indefeasibly paid in full and
that all committed and uncommitted credit facilities
have been terminated.
(xix) If the initial Credit Extension will
be the issuance of a Facility LC, a properly
completed Facility LC Application.
(xx) Evidence of the insurance coverage
described in Section 6.1.3.
(xxi) The General Intangibles Mortgage
executed by an Authorized Representative of the
Borrower.
(xxii) Such other documents as any Lender or its
counsel may have reasonably requested.
(b) In addition to the deliveries required under Section
4.1(a), the Lenders shall not be required to make the initial Credit
Extension hereunder unless: (i) the Borrower has delivered or caused
to be delivered executed lessor's agreements in form and substance
satisfactory to the Agent for each of the locations identified on
Schedule 4.1(b)(i) hereto (Warehouses), and (ii) the Borrower
demonstrates to the Agent's reasonable satisfaction that it has used
reasonable commercial efforts to obtain executed lessor's agreements
in form and substance satisfactory to the Agent for each of the
locations identified on Schedule 4.1(b)(ii) hereto (Leased Store
Locations).
(c) Notwithstanding any term contained herein to the contrary,
within sixty (60) days of the Closing Date, the Borrower shall
furnish to the Agent (with sufficient copies for the Lenders), the
audited financial statements for the 1999 fiscal year of Mega Marts,
Inc.
4.2. Each Credit Extension. The Lenders shall not 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) 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
with respect to each such Credit Extension shall constitute a
representation and warranty by the Borrower that the conditions
contained in Sections 4.2(i) and (ii) have been satisfied. Any
Lender may require a duly completed compliance certificate in
substantially the form of Exhibit 6.3.3 as a condition to making an
Advance.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
------------------------------
The Borrower hereby represents and warrants to the Agent and
each of the Lenders as follows:
5.1. Organization and Qualification. Each Loan Party and each
Material Subsidiary is a corporation, partnership or limited
liability company duly organized, validly existing and in good
standing or current status under the laws of its jurisdiction of
organization. Each Loan Party and each Material Subsidiary has the
lawful power to own or lease its properties and to engage in the
business it presently conducts or proposes to conduct. Each Loan
Party and each Material Subsidiary is duly licensed or qualified and
in good standing or current status in each jurisdiction listed on
Schedule 5.1 and in all other jurisdictions where the property owned
or leased by it or the nature of the business transacted by it or
both makes such licensing or qualification necessary. The foregoing
warranty is subject to Section 6.2.6 after the Closing Date.
5.2. Subsidiaries . Schedules 5.1 and 5.2 state the name of
each of the Borrower's Subsidiaries, its jurisdiction of
incorporation, its authorized capital stock, the issued and
outstanding shares (referred to herein as the "Subsidiary Shares")
and the owners thereof if it is a corporation, its outstanding
partnership interests (the "Partnership Interests") if it is a
partnership and its outstanding limited liability company interests,
interests assigned to managers thereof and the voting rights
associated therewith (the "LLC Interests") if it is a limited
liability company. The Borrower and each Subsidiary of the Borrower
has good and marketable title to all of the Subsidiary Shares,
Partnership Interests and LLC Interests it purports to own, free and
clear in each case of any Lien. All Subsidiary Shares, Partnership
Interests and LLC Interests have been validly issued, and all
Subsidiary Shares are fully paid and nonassessable. All capital
contributions and other consideration required to be made or paid in
connections with the issuance of the Partnership Interests and LLC
Interests have been made or paid, as the case may be. There are no
options, warrants or other rights outstanding to purchase any such
Subsidiary Shares, Partnership Interests or LLC Interests except as
indicated on Schedule 5.2.
5.3. Power and Authority. Each Loan Party has full power to
enter into, execute, deliver and carry out this Agreement and the
other Loan Documents to which it is a party, to incur the
Indebtedness contemplated by the Loan Documents and to perform its
Obligations under the Loan Documents to which it is a party, and all
such actions have been duly authorized by all necessary proceedings
on its part.
5.4 Validity and Binding Effect. This Agreement has been
duly and validly executed and delivered by each Loan Party, and each
other Loan Document which any Loan Party is required to execute and
deliver on or after the date hereof will have been duly executed and
delivered by such Loan Party on the required date of delivery of
such Loan Document. This Agreement and each other Loan Document
constitutes, or will constitute, legal, valid and binding
obligations of each Loan Party which is or will be a party thereto
on and after its date of delivery thereof, enforceable against such
Loan Party in accordance with its terms, except to the extent that
enforceability of any of such Loan Document may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforceability of creditors' rights generally or
limiting the right of specific performance.
5.5. No Conflict. Neither the execution and delivery of this
Agreement or the other Loan Documents by any Loan Party nor the
consummation of the transaction herein or therein contemplated or
compliance with the terms and provisions hereof or thereof by any of
them will conflict with, constitute a default under or result in any
breach of (i) the terms and conditions of the articles or
certificate of incorporation, bylaws, certificate of limited
partnership, partnership agreement, certificate of formation,
limited liability company agreement or other organizational
documents of any Loan Party or (ii) any law or any agreement
material to the Borrower and its Subsidiaries taken as a whole or
instrument or order, writ, judgment, injunction or decree to which
any Loan Party or any of its Subsidiaries is a party or by which it
or any of its Subsidiaries is bound or to which it is subject, or
result in the creation or enforcement of any Lien, charge or
encumbrance whatsoever upon any property (now or hereafter acquired)
of any Loan Party or any of its Subsidiaries (other than Liens
granted under the Loan Documents).
5.6. Litigation. There are no actions, suits, proceedings or
investigations pending or, to the knowledge of any Loan Party,
threatened against such Loan Party or any Subsidiary of such Loan
Party at law or equity before any Official Body which individually
or in the aggregate may have a Material Adverse Effect. None of the
Loan Parties or any Subsidiaries of any Loan Party is in violation
of any order, writ, injunction or any decree of any Official Body
which may have a Material Adverse Effect.
5.7. Title to Properties. Subject to the transactions
permitted under Section 6.2.7(i), the real property owned or leased
by each Loan Party and each Subsidiary of each Loan Party on the
date hereof (excluding facilities which a Loan Party or Subsidiary
of a Loan Party leases as lessee and subleases as the lessor and
which such Loan Party does not operate and excluding the "vacant
leased locations" set forth on Schedule 5.7(a) which a Loan Party or
Subsidiary of a Loan Party leases but does not sublease for grocery
store use) is described on Schedule 5.7 (subject to Section 5.23).
Each Loan Party and each Subsidiary of each Loan Party has good and
marketable title to or valid leasehold interest in all material
properties, assets and other rights which it purports to own or
lease or which are reflected as owned or leased on its books and
records, free and clear of all Liens and encumbrances except
Permitted Liens, and subject to the terms and conditions of the
applicable leases. All leases of property are in full force and
effect in all material respects without the necessity for any
consent which has not previously been obtained upon consummation of
the transactions contemplated hereby.
5.8. Financial Statements.
(i) Historical Statements. The Borrower has delivered to the
Agent copies of its audited consolidated financial statements for
its fiscal years ending on or about January 3, 1998, January 2, 1999
and January 1, 2000 (the "Historical Statements"). The Historical
Statements were compiled from the books and records maintained by
the Borrower's management, are correct and complete and fairly
represent the consolidated financial condition of the Borrower and
its Subsidiaries as of their dates and the results of operations for
the fiscal periods then ended and have been prepared in accordance
with Agreement Accounting Principles consistently applied.
(ii) Accuracy of Financial Statements. Neither the Borrower
nor any of its Subsidiaries has any liabilities, contingent or
otherwise, or any forward or long-term commitments, which in the
case of any of the foregoing are required under Agreement Accounting
Principles to be disclosed in the Historical Statements or in the
notes thereto and are not so disclosed, and except as disclosed
therein there are no unrealized or anticipated losses from any
commitments of the Borrower or any Subsidiary of the Borrower which
may have a Material Adverse Effect. Since January 1, 2000, there
has been no Material Adverse Effect on the business or operations of
the Loan Parties.
5.9. Use of Proceeds; Margin Stock. The Loan Parties intend
to use the proceeds of the Loans in accordance with Section 6.1.10.
None of the Loan Parties or any Subsidiaries of any Loan Party
engages or intends to engage principally, or as one of its important
activities, in the business of extending credit for the purpose,
immediately, incidentally or ultimately, of purchasing or carrying
margin credit for the purpose, immediately, incidentally or
ultimately, of purchasing or carrying margin stock (within the
meaning of Regulation U). No part of the proceeds of any Loan has
been or will be used, immediately, incidentally or ultimately, to
purchase or carry any margin stock or to extend credit to others for
the purpose of purchasing or carrying any margin stock or to refund
Indebtedness originally incurred for such purpose, or for any
purpose which entails a violation of or which is inconsistent with
the provisions of the regulations of the Board of Governors of the
Federal Reserve System. None of the Loan Parties or any Subsidiary
of any Loan Parties holds or intends to hold margin stock in such
amounts that more than 25% of the reasonable value of the assets of
any Loan Party or Subsidiary of any Loan Party are or will be
represented by margin stock.
5.10 Full Disclosure. Neither this Agreement nor any other
Loan Document, nor any certificate, statement, agreement or other
documents furnished to the Agent or any Lender in connection
herewith or therewith, contains any untrue statement of a material
fact or omits to state a material fact necessary in order to make
the statements contained herein and therein, in light of the
circumstances under which they were made, not misleading. There is
no fact known to any Loan Party which materially adversely affects
the business, property, assets, financial condition, results of
operations or prospects of any Material Subsidiary or the Borrower
and its Subsidiaries taken as a whole which has not been set forth
in this Agreement or in the certificates, statements, agreements or
other documents furnished in writing to the Agent and the Lenders
prior to or at the date hereof in connection with the transactions
contemplated hereby.
5.11. Taxes . All federal, state, local and other tax
returns required to have been filed with respect to each Loan Party
and each Subsidiary of each Loan Party have been filed, and payment
or adequate provision has been made for the payment of all taxes,
fees, assessments and other governmental charges which have or may
become due pursuant to said returns or to assessments received,
except to the extent that such taxes, fees, assessments and other
charges are being contested in good faith by appropriate proceedings
diligently conducted and for which such reserves or other
appropriate provisions, if any, as shall be required by Agreement
Accounting Principles shall have been made. There are no agreements
or waivers extending the statutory period of limitations applicable
to any federal income tax return of any Loan Party or Subsidiary of
any Loan Party for any period.
5.12. Consents and Approvals. No consent, approval,
exemption, order or authorization of, or a registration or filing
with, any Official Body or any other Person is required by any law
or any agreement in connection with the execution, delivery and
carrying out of this Agreement and the other Loan Documents by any
Loan Party, except as listed on Schedule 5.12, all of which shall
have been obtained or made on or prior to the Closing Date except as
otherwise indicated on Schedule 5.12.
5.13. No Event of Default; Compliance with Instruments.
No event has occurred and is continuing and no condition exists or
will exist after giving effect to the Credit Extensions to be made
on the Closing Date under or pursuant to the Loan Documents which
constitutes a Default or Unmatured Default. None of the Loan
Parties or any Subsidiaries of any Loan Party is in violation of (i)
any term of its articles or certificate of incorporation, bylaws,
certificate of limited partnership, partnership agreement,
certificate of formation, limited liability company agreement or
other organizational documents or (ii) any material agreement or
instrument to which it is a party or by which it or any of its
properties may be subject or bound where such violation would have a
Material Adverse Effect.
5.14. Patents, Trademarks, Copyrights, Licenses, Etc.
Each Loan Party and each Subsidiary of each Loan Party owns or
possesses all the material patents, trademarks, service marks, trade
names, copyrights, licenses, registrations, franchises, permits and
rights necessary to own and operate its properties and to carry on
its business as presently conducted and planned to be conducted by
such Loan Party or Subsidiary, without known possible, alleged or
actual conflict with the rights of others, except for conflicts
which could not have a Material Adverse Effect.
5.15. Insurance. All insurance policies and other bonds
to which each Loan Party or Subsidiary of any Loan Party is a party,
are valid and in full force and effect. No notice has been given or
claim made and no grounds exist to cancel or avoid any of such
policies or bonds or to reduce the coverage provided thereby. Such
policies and bonds provide adequate coverage from reputable and
financially sound insurers in amounts sufficient to insure the
assets and risks of each Loan Party and each Subsidiary of each Loan
Party in accordance with prudent business practice in the industry
of the Loan Parties and their Subsidiaries.
5.16. Compliance with Laws. The Loan Parties and their
Subsidiaries are in compliance in all material respects with all
applicable laws (other than Environmental Laws which are
specifically addressed in Section 5.21) in all jurisdictions in
which any Loan Party or Subsidiary of any Loan Party is presently or
will be doing business except where the failure to do so would not
have a Material Adverse Effect.
5.17. Material Contracts; Burdensome Restrictions. All
contracts material to the Loan Parties and their Subsidiaries taken
as a whole relating to the business operations of each Loan Party
and each Subsidiary of each Loan Party, including all material
employee benefit plans and Labor Contracts are valid, binding and
enforceable upon such Loan Party or Subsidiary and each of the other
parties thereto in accordance with their respective terms, and there
is no default thereunder, to the Loan Parties' knowledge, with
respect to parties other than such Loan Party or Subsidiary. None
of the Loan Parties or their Subsidiaries is bound by any
contractual obligation, or subject to any restriction in any
organization document, or any requirement of law which could have a
Material Adverse Effect.
5.18. Investment Companies: Regulated Entities. None of
the Loan Parties or any Subsidiaries of any Loan Party is an
"investment company" registered or required to be registered under
the Investment Company Act of 1940 or under the "control" of an
"investment company" as such terms are defined in the Investment
Company Act of 1940 and shall not become such an "investment
company" or under such "control." None of the Loan Parties or any
Subsidiaries of any Loan Party is subject to any other Federal or
state statute or regulation limiting its ability to incur
Indebtedness for borrowed money.
5.19. Plans and Benefit Arrangements. Except as set
forth on Schedule 5.19:
(i) The Borrower and each other member of the Controlled Group
are in compliance in all material respects with any applicable
provisions of ERISA with respect to all Benefit Arrangements, Plans
and Multiemployer Plans. There has been no Prohibited Transaction
with respect to any Benefit Arrangement or any Plan or, to the best
knowledge of the Borrower, with respect to any Multiemployer Plan or
Multiemployer Plan, which could result in any material liability of
the Borrower or any other member of the Controlled Group. The
Borrower and all other members of the Controlled Group have made
when due any and all payments required to be made under any
agreement relating to a Multiemployer Plan or a Multiple Employer
Plan or any law pertaining thereto. With respect to each Plan and
Multiemployer Plan, the Borrower and each other member of the
Controlled Group (i) have fulfilled in all material respects their
obligations under the minimum funding standards of ERISA, (ii) have
not incurred any liability to the PBGC, and (iii) have not had
asserted against them any penalty for failure to fulfill the minimum
funding requirements of ERISA.
(ii) To the best of the Borrower's knowledge, each
Multiemployer Plan and Multiple Employer Plan is able to pay
benefits thereunder when due.
(iii) Neither the Borrower nor any other member of the
Controlled Group has instituted or intends to institute proceedings
to terminate any Plan.
(iv) No event requiring notice to the PBGC under Section
302(f)(4)(A) of ERISA has occurred or is reasonably expect to occur
with respect to any Plan, and no amendment with respect to which
security is required under Section 307 of ERISA has been made or is
reasonably expected to be made to any Plan.
(v) The aggregate actuarial present value of all benefit
liabilities (whether or not vested) under each Plan, determined on a
plan termination basis, as disclosed in, and as of the date of, the
most recent actuarial report for such Plan, does not exceed the
aggregate fair market value of the assets of such Plan.
(vi) Neither the Borrower nor any other member of the
Controlled Group has incurred or reasonably expects to incur any
material withdrawal liability under ERISA to any Multiemployer Plan
or Multiple Employer Plan. Neither the Borrower nor any other
member of the Controlled Group has been notified by any
Multiemployer Plan or Multiple Employer Plan that such Multiemployer
Plan or Multiple Employer Plan has been terminated within the
meaning of Title IV of ERISA and, to the best knowledge of the
Borrower, no Multiemployer Plan or Multiple Employer Plan is
reasonably expected to be reorganized or terminated, within the
meaning of Title IV of ERISA.
(vii) To the extent that any Benefit Arrangement is
insured, the Borrower and all other members of the Controlled Group
have paid when due all premiums required to be paid for all periods
through the Closing Date. To the extent that any Benefit
Arrangement is funded other than with insurance, the Borrower and
all other members of the Controlled Group have made when due all
contributions required to be paid for all periods through the
Closing Date.
(viii) All Plans, Benefit Arrangements and Multiemployer
Plans have been administered in accordance with their terms and
applicable law.
5.20. Employment Matters. Each of the Loan Parties and
each Subsidiary of each Loan Party is in compliance with the Labor
Contracts and all applicable federal, state and local labor and
employment laws including those related to equal employment
opportunity and affirmative action, labor relations, minimum wage,
overtime, child labor, medical insurance continuation, worker
adjustment and relocation notices, immigration controls and worker
and unemployment compensation, in each case where the failure to
comply would have a Material Adverse Effect. There are no
outstanding grievances, arbitration awards or appeals therefrom
arising out of the Labor Contracts or current or threatened strikes,
picketing, hand billing or other work stoppages or slowdowns at
facilities of any of the Loan Parties or any of their Subsidiaries
which in any case would have a Material Adverse Effect.
5.21. Environmental Matters. Except as disclosed on
Schedule 5.21 and except as are not or could not individually or in
the aggregate have a Material Adverse Effect:
(i) None of the Loan Parties or any Subsidiaries of any Loan
Party has received any Environmental Complaint from any Official
Body or private Person alleging that such Loan Party or Subsidiary
or any prior or subsequent owner of any of the Property is a
potentially responsible party under the Comprehensive Environmental
Response, Cleanup and Liability Act, 42. U.S.C. 9601, et seq., and
none of the Loan Parties has any reason to believe that such an
Environmental Complaint might be received. There are no pending or,
to any Loan Party's knowledge, threatened Environmental Complaints
relating to any Loan Party or Subsidiary of any Loan Party or, to
any Loan Party's knowledge, any prior or subsequent owner of any of
the Property pertaining to, or arising out of, any Environmental
Conditions.
(ii) There are no circumstances at, on or under any of the
Property that constitute a breach of or non-compliance with any of
the Environmental Laws, and there are no past or present
Environmental Conditions at, on or under any of the Property or, to
any Loan Party's knowledge, at, on or under adjacent property, that
prevent compliance with the Environmental Laws at any of the
Property.
(iii) Neither any of the Property nor any structures,
improvements, equipment, fixtures, activities or facilities thereon
or thereunder contain or use Regulated Substances except in
compliance with Environmental Laws. There are no processes,
facilities, operations, equipment or other activities at, on or
under any of the Property, or, to any Loan Party's knowledge, at on
or under adjacent property, that currently result in the release or
threatened release of Regulated Substances onto any of the Property,
except to the extent that such releases or threatened releases are
not a breach of or otherwise not a violation of the Environmental
Laws.
(iv) There are no aboveground storage tanks, underground
storage tanks or underground piping associated with such tanks, used
for the management of Regulated Substances at, on or under any of
the Property that (a) do not have, to the extent required by
Environmental Laws, a full operational secondary containment system
in place, and (b) are not otherwise in compliance with all
Environmental Laws. There are no abandoned underground storage
tanks or underground piping associated with such tanks, previously
used for the management of Regulated Substances at, on or under any
of the Property that have not either been closed in place in
accordance with Environmental Laws or removed in compliance with all
applicable Environmental Laws and no contamination associated with
the use of such tanks exists on any of the Property that is not in
compliance with Environmental Laws.
(v) Each Loan Party and each Subsidiary of each Loan Party has
all material permits, licenses, authorizations, plans and approvals
necessary under Environmental Laws for the conduct of the business
of such Loan Party or Subsidiary as presently conducted. Each Loan
Party and each Subsidiary of each Loan Party has submitted all
material notices, reports and other filings required by the
Environmental Laws to be submitted to an Official Body which pertain
to past and current operations on any of the Property.
(vi) All past and present on-site generation, storage,
processing, treatment, recycling, reclamation, disposal or other use
or management of Regulated Substances at, on, or under any of the
Property and all off-site transportation, storage, processing,
treatment, recycling, reclamation, disposal or other use or
management of Regulated Substances have been done in accordance with
the Environmental Laws.
5.22. Subordinated Indebtedness. The Secured Obligations
constitute senior indebtedness which is entitled to the benefits of
the subordination provisions of all outstanding Subordinated
Indebtedness.
5.23. Updates to Schedules. Should any of the
information or disclosures provided on any of the Schedules attached
hereto become outdated or incorrect in any material respect, the
Borrower shall provide the Agent in writing with such revisions or
updates to such Schedule as may be necessary or appropriate to
update or correct same:
(a) promptly after such schedule becomes outdated or incorrect
in the case of Schedules 5.7 (title to properties, with respect to
warehouse locations), 5.12 (consents and approvals), 5.19 (employee
benefit plan disclosures), and 5.21 (environmental disclosures);
notwithstanding this clause (a) neither Schedule 5.7, 5.12, 5.19,
nor Schedule 5.21 shall be deemed to have been amended, modified or
superseded by any correction or update thereto, nor shall any breach
of warranty or representation resulting from the inaccuracy or
incompleteness of such Schedule be deemed to have been cured
thereby, unless and until the Required Lenders, in their sole and
absolute discretion, shall have accepted in writing such revisions
or updates to such Schedule, and
(b) on a quarterly basis at the time the Borrower delivers its
compliance certificate described in Section 6.3.3 in the case of
Schedules 5.1 (qualifications to do business ), 5.2 (subsidiaries),
and 5.7 (title to properties, with respect to property other than
warehouse locations).
5.24. Solvency. (i) Immediately after the consummation of
the transactions to occur on the date hereof and immediately
following the making of each Credit Extension, if any, made on the
date hereof and after giving effect to the application of the
proceeds of such Credit Extensions, (a) the fair value of the assets
of the Borrower and its Subsidiaries on a consolidated basis, at a
fair valuation, will exceed the debts and liabilities, subordinated,
contingent or otherwise, of the Borrower and its Subsidiaries on a
consolidated basis; (b) the present fair saleable value of the
Property of the Borrower and its Subsidiaries on a consolidated
basis will be greater than the amount that will be required to pay
the probable liability of the Borrower and its Subsidiaries on a
consolidated basis on their debts and other liabilities,
subordinated, contingent or otherwise, as such debts and other
liabilities become absolute and matured; (c) the Borrower and its
Subsidiaries on a consolidated basis will be able to pay their debts
and liabilities, subordinated, contingent or otherwise, as such
debts and liabilities become absolute and matured; and (d) the
Borrower and its Subsidiaries on a consolidated basis will not have
unreasonably small capital with which to conduct the businesses in
which they are engaged as such businesses are now conducted and are
proposed to be conducted after the date hereof.
(ii) The Borrower does not intend to, or to permit any of its
Subsidiaries to, and does not believe that it or any of its
Subsidiaries will, incur debts beyond its ability to pay such debts
as they mature, taking into account the timing of and amounts of
cash to be received by it or any such Subsidiary and the timing of
the amounts of cash to be payable on or in respect of its
Indebtedness or the Indebtedness of any such Subsidiary.
ARTICLE VI
COVENANTS
---------
6.1. Affirmative Covenants.
During the term of this Agreement, unless the Required Lenders
shall otherwise consent in writing:
6.1.1. Preservation of Existence, Etc. The Borrower
shall, and shall cause each of its Subsidiaries to, maintain its
legal existence as a corporation, limited partnership or limited
liability company and its license or qualification and good standing
or current status in each jurisdiction in which its ownership or
lease of property or the nature of its business makes such license
or qualification necessary, except as otherwise expressly permitted
in Section 6.2.6.
6.1.2. Payment of Liabilities, Including Taxes, Etc.
The Borrower shall, and shall cause each of its Subsidiaries to,
duly pay and discharge all liabilities to which it is subject or
which are asserted against it, promptly as and when the same shall
become due and payable, including all taxes, assessments and
governmental charges upon it or any of its properties, assets,
income or profits, prior to the date on which penalties attach
thereto, except to the extent that such liabilities, including
taxes, assessments or charges, are being contested in good faith and
by appropriate and lawful proceedings diligently conducted and for
which such reserve or other appropriate provisions, if any, as shall
be required by Agreement Accounting Principles shall have been made,
but only to the extent that failure to discharge any such
liabilities would not result in any additional liability which would
have a Material Adverse Effect, provided that the Loan Parties and
their Subsidiaries will pay all such liabilities forthwith upon the
commencement of proceedings to foreclose any Lien which may have
attached as security therefor if such proceedings or Lien could have
a Material Adverse Effect.
6.1.3. Maintenance of Insurance. The Borrower shall,
and shall cause each of its Subsidiaries to, insure its properties
and assets against loss or damage by fire and such other insurable
hazards as such assets are commonly insured (including fire,
extended coverage, property damage, workers' compensation, public
liability and business interruption insurance) and against other
risks (including errors and omissions) in such amount as similar
properties and assets are insured by prudent companies in similar
circumstances carrying on similar businesses, and with reputable and
financially sound insurers, including self-insurance to the extent
customary, all as reasonably determined by the Agent. Without
limiting the generality of the foregoing, the Agent, for itself and
the benefit of the other Lenders, shall be named as lender loss
payee and mortgagee under any insurance policy which relates to the
Collateral (as that term is defined in the Pledge and Security
Agreements) or relates to any real estate covered by a Mortgage and
shall be named as an additional insured with respect to the
Borrowers' and its Subsidiaries' liability insurance policies. The
Borrower shall, at the Agent's request, provide copies to the Agent
of all insurance policies and other material related thereto
maintained by the Borrower or any Subsidiary from time to time.
Pursuant to Section 4.1(xx), the Borrower shall supply the Agent
with certificates of insurance evidencing that the Agent has been
named an additional insured for purposes of this provision and
further providing that no such policy of insurance on which the
Agent has been named as lender loss payee and mortgagee and/or
additional insured may be canceled or terminated without a thirty
(30) day written notice to the Agent.
6.1.4. Maintenance of Properties and Leases. The
Borrower shall, and shall cause each of its Subsidiaries to,
maintain in good repair, working order and condition (ordinary wear
and tear excepted) in accordance with the general practice of other
businesses of similar character and size, all of those properties
useful or necessary to its business, and from time to time, such
Loan Party will make or cause to be made all appropriate repairs,
renewals or replacements thereof.
6.1.5. Maintenance of Patents, Trademarks, Etc. The
Borrower shall, and shall cause each of its Subsidiaries to,
maintain in full force and effect all patents, trademarks, service
marks, trade names, copyrights, licenses, franchises, permits and
other authorizations necessary for the ownership and operation of
its properties and business if the failure so to maintain the same
would have a Material Adverse Effect.
6.1.6. Visitation Rights. The Borrower shall, and shall
cause each of its Subsidiaries to, permit any of the officers or
authorized employees or representatives of the Agent or any of the
Lenders to visit and inspect any of its properties and to examine
and make excerpts from its books and records and discuss its
business affairs, finances and accounts with its officers, all in
such detail and at such times and as often as any of the Lenders may
reasonably request, provided that, prior to the occurrence of a
Default, each Lender shall provide the Borrower and the Agent with
reasonable notice prior to any visit or inspection. In the event
any Lender desires to conduct an audit of any Loan Party, such
Lender shall make a reasonable effort to conduct such audit
contemporaneously with any audit to be performed by the Agent.
6.1.7. Keeping of Records and Books of Account. The
Borrower shall, and shall cause each of its Subsidiaries to,
maintain and keep proper books of record and account which enable
the Borrower and its Subsidiaries to issue financial statements in
accordance with Agreement Accounting Principles and as otherwise
required by applicable laws of any Official Body having jurisdiction
over the Borrower or any Subsidiary of the Borrower, and in which
full, true and correct entries shall be made in all material
respects of all its dealings and business and financial affairs.
6.1.8. Plans and Benefit Arrangements. The Borrower
shall, and shall cause each other member of the Controlled Group to,
comply with ERISA, the Code and other applicable laws applicable to
Plans and Benefit Arrangements except where such failure, alone or
in conjunction with any other failure, would not have a Material
Adverse Effect. Without limiting the generality of the foregoing,
the Borrower shall cause all its Plans and all Plans maintained by
any member of the Controlled Group to be funded in accordance with
the minimum funding requirements of ERISA and shall make, and cause
each member of the Controlled Group to make, in a timely manner, all
contributions due to Plans, Benefit Arrangements and Multiemployer
Plans.
6.1.9. Compliance with Laws. The Borrower shall, and
shall cause each of its Subsidiaries to, comply with all applicable
laws, including all Environmental Laws, in all respects, provided
that it shall not be deemed to be a violation of this Section 6.1.9
if any failure to comply with any law would not result in fines,
penalties, remediation costs, other similar liabilities or
injunctive relieve which in the aggregate would have a Material
Adverse Effect.
6.1.10. Use of Proceeds.
6.1.10.1. General. The Loan Parties will use the
Facility LCs and the proceeds of the Revolving Loans only (i) to
refinance existing Indebtedness, (ii) for general corporate purposes
and (iii) to make acquisitions permitted hereunder. The Loan
Parties will use the proceeds of the Term Loans only (i) to
refinance existing Indebtedness and (ii) for general corporate
purposes.
6.1.10.2. Margin Stock. The Loan Parties shall not
use the proceeds of the Loans to purchase margin stock as more fully
provided in Section 5.9.
6.1.10.3. Section 20 Subsidiaries. The Loan
Parties will not, directly or indirectly, use any portion of the
proceeds of the Loans (i) knowingly to purchase any Ineligible
Securities from a Section 20 Subsidiary during any period in which
such Section 20 Subsidiary makes a market in such Ineligible
Securities, (ii) knowingly to purchase during the underwriting or
placement period Ineligible Securities being underwritten or
privately placed by a Section 20 Subsidiary, or (iii) to make
payments of principal or interest on Ineligible Securities
underwritten or privately placed by as Section 20 Subsidiary and
issued by or for the benefit of any Loan Party or any Affiliate of
any Loan Party.
6.1.11. Subordination of Intercompany Loans. Each Loan
Party shall cause any intercompany Indebtedness or loans or advances
owed by any Loan Party to any other Loan Party to be subordinated
pursuant to the terms of the Intercompany Subordination Agreement.
6.1.12. Rate Management Transactions[6.22.Required Rate
Hedging Agreements. Within 10 Business Days of the initial
Extension of Credit, the Borrower will enter into one or more Rate
Management Transactions with one or more financial institutions
acceptable to the Required Lenders in their reasonable discretion,
providing for a fixed rate of interest on a notional amount of at
least $ 40,000,000 and an average weighted maturity of at least two
years.
6.2. Negative Covenants.
During the term of this Agreement, unless the required Lenders
shall otherwise consent in writing:
6.2.1. Indebtedness. The Borrower shall not, and shall
not permit any of its Subsidiaries to, at any time create, incur,
assume or suffer to exist any Indebtedness, except:
(i) Indebtedness under the Loan Documents;
(ii) Indebtedness evidenced by the Mega Marts Notes which
is subordinated pursuant to the terms of the Subordination
Agreement;
(iii) Existing Indebtedness as set forth on Schedule
6.2.1 (including any extensions or renewals thereof, provided there
is no increase in the amount thereof or other significant change in
the terms thereof unless otherwise specified on Schedule 6.2.1;
(iv) Indebtedness secured by Purchase Money Security
Interests not exceeding $25,000,000;
(v) Indebtedness of a Loan Party or a Subsidiary of a
Loan Party to another Loan Party or a Subsidiary of a Loan Party
which is subordinated pursuant to the terms of the Intercompany
Subordination Agreement;
(vi) Indebtedness of the Borrower in respect of up to
$1,000,000 (plus interest accrued thereon at a rate not to exceed
8.25% per annum) in noncompetition payments to be made to certain
former shareholders of Mega Marts, Inc. pursuant to the terms of the
Mega Marts Agreement;
(vii) Indebtedness arising under Rate Management
Transactions having a Net Xxxx-to-Market Exposure not exceeding
$10,000,000;
(viii) Contingent Obligations permitted under Section
6.2.3(iii), (iv) and (v);
(ix) Indebtedness the proceeds of which is paid to
Lenders under Section 2.7.2(a);
(x) Indebtedness (other than Indebtedness permitted by
Section 6.2.1(i) through (ix)) of the Loan Parties, provided that
the amount thereof which the Loan Parties may have outstanding
between the Closing Date and the Term Loan Termination Date shall
not exceed $5,000,000 in the aggregate.
6.2.2. Liens. The Borrower shall not, and shall not
permit any of its Subsidiaries to, at any time create, incur, assume
or suffer to exist any Lien on any of its property or assets,
tangible or intangible, now owned or hereafter acquired, or agree or
become liable to do so, except Permitted Liens.
6.2.3. Contingent Obligations[6.26.Contingent
Obligations. The Borrower shall not, and shall not permit any of
its Subsidiaries to, make or suffer to exist any Contingent
Obligation (including, without limitation, any Contingent Obligation
with respect to the obligations of a Subsidiary), except:
(i) by endorsement of instruments for deposit or
collection in the ordinary course of business;
(ii) for the Guaranty;
(iii) guaranties of Indebtedness permitted hereunder
of the Loan Parties and their Subsidiaries and guaranties of other
obligations of the Loan Parties or their Subsidiaries owed to one
another;
(iv) guaranties of obligations of customers of the Loan
Parties or their Subsidiaries incurred in the ordinary course of
their business not in excess of $17,500,000 in the aggregate; and
(v) guaranties of obligations of officers of the Loan
Parties or their Subsidiaries in connection with the exercise of
stock options of not in excess of $7,500,000 in the aggregate.
6.2.4. Loans and Investments. The Borrower shall not,
and shall not permit any of its Subsidiaries to, at any time make or
suffer to remain outstanding any loan or advance to, or purchase,
acquire or own any stock, bonds, notes or securities of, or any
partnership interest (whether general or limited) or limited
liability company interest in, or any other investment or interest
in, or make any capital contribution to, any other Person, or agree,
become or remain liable to do any of the foregoing, except:
(i) trade credit extended on usual and customary terms in
the ordinary course of business;
(ii) advances to employees to meet expenses incurred by
such employees in the ordinary course of business;
(iii) Cash Equivalent Investments;
(iv) loans, advances and investments in other Loan Parties
or their Subsidiaries;
(v) loans to customers and investments in the ordinary
course of the business of the Loan Parties or their Subsidiaries
outstanding on the Closing Date and described on Schedule 6.2.4;
(vi) loans to customers entered into after the date hereof
in the ordinary course of the business of the Loan Parties or their
Subsidiaries in an amount not to exceed at any one time 10% of
Consolidated Tangible Assets at such time;
(vii) mergers, consolidations and acquisitions
described in and permitted under Section 6.2.6; and
(viii) loans not in excess of $7,500,000 in the
aggregate to employees and officers of the Loan Parties or their
Subsidiaries in connection with the exercise of stock options.
6.2.5. Dividends and Related Distributions. The
Borrower shall not, and shall not permit any of its Subsidiaries to,
make or pay, or agree to become or remain liable to make or pay, any
dividend or other distribution of any nature (whether in cash,
property, securities or otherwise) on account of or in respect of
its shares of capital stock, partnership interests or limited
liability company interest on account of the purchase, redemption,
retirement or acquisition of its shares of capital stock (or
warrants, options or rights therefor), partnership interest or
limited liability company interests, except that: (a) the Borrower
may purchase or otherwise acquire shares of its capital stock by
exchange for or out of the proceeds received from a substantially
concurrent issue of new shares of its capital stock; (b) prior to a
Default which is continuing, the Borrower may purchase, redeem,
retire or otherwise acquire shares of its capital stock owned by
current or former employees, customers or directors in accordance
with the policies of Borrower summarized in the documents filed by
Borrower with the Securities and Exchange Commission; (c) Borrower
and its Subsidiaries may sell or exchange stock of the Borrower's
Subsidiaries to or with Borrower and its Subsidiaries; (d) prior to
a Default which is continuing, the Borrower may pay Patronage
Dividends in accordance with the terms of the Borrower's by-laws if,
after such dividends are paid, the book value per share of the
Borrower and its Subsidiaries on a consolidated basis is at least
five percent (5%) greater than such book value on the last day of
the immediately preceding fiscal year, provided that not more than
forty percent (40%) of the aggregate amount of Patronage Dividends
paid during any fiscal year while this Agreement is in effect shall
be paid in cash or cash equivalents and (e) the Loan Parties and
their Subsidiaries may pay dividends to the other Loan Parties or
their Subsidiaries.
6.2.6. Liquidations, Mergers, Consolidations,
Acquisitions. The Borrower shall not, and shall not permit any of
its Subsidiaries to, dissolve, liquidate or wind-up its affairs, or
become a party to any merger or consolidation, or acquire by
purchase, lease or otherwise all or substantially all of the assets
or capital stock of any other Person, provided that
(1) any Loan Party other than the Borrower may
consolidate with or merge into another Loan Party and any
Subsidiary of the Borrower may consolidate with or merger into
another Subsidiary of the Borrower or into a Loan Party if the Loan
Party shall be the surviving entity, and
(2) any Loan Party or Subsidiary of a Loan Party may
acquire, whether by purchase or by merger, (A) all of the ownership
interests of another Person or (B) substantially all of assets of
another Person or of a business or division of another Person (each
a "Permitted Acquisition") provided that each of the following
requirements is met:
(i) if a Loan Party will form or acquire any
Material Subsidiary in such acquisition or if any existing
Subsidiary shall become a Material Subsidiary as a result of such
acquisition, such Material Subsidiary shall execute a guarantor
joinder agreement in form and substance satisfactory to the Agent
and join this Agreement, the Guaranty and the Intercompany
Subordination Agreement,
(ii) the business acquired, or the business
conducted by the Person whose ownership interests are being
acquired, as applicable, shall be substantially the same as one or
more line or lines of business conducted by the Loan Parties and
shall comply with Section 6.2.10,
(iii) no Default or Unmatured Default shall
exist immediately prior to and after giving effect to such
Permitted Acquisition, and
(iv) the Borrower shall demonstrate that it
shall be in compliance with the covenants contained in Sections
6.2.1, 6.2.6 and 6.2.14 after giving effect to Such Permitted
Acquisition by delivering at least ten (10) Business Days prior to
such Permitted Acquisition a certificate in the form of Exhibit
6.2.6 evidencing such compliance.
6.2.7. Dispositions of Assets or Subsidiaries. The
Borrower shall not, and shall not permit any of its Subsidiaries to,
engage in any Asset Disposition, except:
(i) transactions in the ordinary course of business
involving one or more of the following: (w) the leasing or
subleasing of real property, (x) the sale of the assets of a retail
grocery store to a Person who will use such assets in the operation
of a grocery store, or (y) the sale of inventory; or (z) any sale of
undeveloped or vacant real property having an aggregate fair market
value of less than $10,000,000, provided, that all such
transactions are subject to the terms of Section 2.7.2(b), provided
further, that the Lenders acknowledge and agree that any undeveloped
or vacant real property having an aggregate fair market value of
less than $10,000,000 shall not be subject to any Mortgage in favor
of the Agent for the benefit of the Lenders, provided further, the
Loan Parties acknowledge and agree that should Borrower or any
Subsidiary of the Borrower acquire one or more parcels of
undeveloped or vacant real property having an aggregate fair market
value in excess of $10,000,000, all such real estate shall be
subject to a Mortgage in favor of the Agent for the benefit of the
Lenders;
(ii) any sale, transfer or lease of assets (including
stores) in the ordinary course of business which are no longer
necessary or required in the conduct of the Loan Party's or a
Subsidiary's business;
(iii) any sale, transfer or lease of assets by any
wholly owned Subsidiary of a Loan Party to another Loan Party or
another Subsidiary of a Loan Party;
(iv) any sale, transfer or lease of assets in the ordinary
course of business which are replaced by substitute assets; and
(v) any sale, transfer or lease of assets, other than
those specifically excepted pursuant to clauses (i) through (iv)
above, which is approved by the Required Lenders.
6.2.8. Affiliate Transactions. The Borrower shall not,
and shall not permit any of its Subsidiaries to, enter into or carry
out any transaction (including purchasing property or services from
or selling property or services to any Affiliate or any Loan Party
or other Person) unless such transaction is (i) with another Loan
Party or Subsidiary of a Loan Party or (ii) not otherwise prohibited
by this Agreement, is entered into in the ordinary course of
business upon fair and reasonable arm's-length terms and conditions
and is in accordance with all applicable law and the terms thereof
are disclosed to the Agent, provided that if the transaction is with
a retail customer of the Loan Parties or their Subsidiaries entered
into in the ordinary course of business, then the requirement above
that the Loan Parties and their Subsidiaries shall disclose the
terms thereof to the Agent shall not apply.
6.2.9. Subsidiaries, Partnerships and Joint Ventures.
6.2.9.1. New Subsidiaries. The Borrower shall not,
and shall not permit any of its Subsidiaries to, own or create
directly or indirectly any Material Subsidiaries other than (i) any
Material Subsidiary which has joined this Agreement, the Guaranty
and the Intercompany Subordination Agreement on the Closing Date;
and (ii) any Material Subsidiary formed or acquired after the
Closing Date or any Subsidiary which becomes a Material Subsidiary
after the Closing Date which joins this Agreement, the Guaranty and
the Intercompany Subordination Agreement as a Guarantor pursuant to
Section 6.2.6. No Loan Party shall become or agree to (1) become a
general or limited partner in any general or limited partnership,
except that the Loan Parties may be general or limited partners in
other Loan Parties and State Street Limited Partnership, (2) become
a member or manager of, or hold a limited liability company interest
in, a limited liability company, except that the Loan Parties may be
members or managers of, or hold limited liability company interests
in, other Loan Parties, or (3) become a joint venturer or hold a
joint venture interest in any joint venture.
6.2.9.2. Joinder of Subsidiaries as Required Under
Other Circumstances. Each of the following requirements shall be
met at all times:
(A) the consolidated gross revenues of the Loan
Parties over the twelve-months preceding any date of
determination (as determined according to Agreement Accounting
Principles) shall equal or exceed 80% of the consolidated gross
revenues of the Borrower and all of the Borrower's Subsidiaries
on such date of determination; and
(B) the book value of the assets of the Loan
Parties collectively shall equal or exceed 80% of the book
value of the consolidated assets of the Borrower and all of the
Borrower's Subsidiaries.
If the Loan Parties fail to maintain gross revenues and assets
according to the levels required in clauses (A) and (B) above, the
Borrower shall promptly cause additional Subsidiaries to join this
Agreement, the Guaranty Agreement and the Intercompany Subordination
Agreement pursuant to a guarantor joinder agreement in form and
substance acceptable to the Agent, such that the total gross
revenues and assets of the Loan Parties shall meet the requirements
in clauses (A) and (B) above.
6.2.10. Continuation of or Change in Business. The
Borrower shall not, and shall not permit any of its Subsidiaries to,
engage in any business other than their current lines of business
(collectively, the "Business"), substantially as conducted and
operated by such Loan Parties and their Subsidiaries during the
present fiscal year, and the Loan Parties and their Subsidiaries
shall not permit any material change in the Business.
6.2.11. Plans and Benefit Arrangements. Except as to
exceptions on Schedule 5.19, the Borrower shall not, and shall not
permit any of its Subsidiaries to:
(i) fail to satisfy the minimum funding requirements of
ERISA and the Code with respect to any Plan;
(ii) request a minimum funding waiver from the Internal
Revenue Service with respect to any Plan;
(iii) engage in a Prohibited Transaction with any
Plan, Benefit Arrangement or Multiemployer Plan which, alone or in
conjunction with any other circumstances or set of circumstances
resulting in liability under ERISA, would have a Material Adverse
Effect;
(iv) permit the aggregate actuarial present value of all
benefit liabilities (whether or not vested) under each Plan,
determined on a plan termination basis, as disclosed in the most
recent actuarial report completed with respect to such Plan, to
exceed, as of any actuarial valuation date, the fair market value of
the assets of such Plan;
(v) fail to make when due any contribution to any
Multiemployer Plan that the Borrower or any member of the Controlled
Group may be required to make under any agreement relating to such
Multiemployer Plan, or any law pertaining thereto;
(vi) withdraw (completely or partially) from any
Multiemployer Plan or withdraw (or be deemed under Section 4062(e)
of ERISA to withdraw) from any Multiple Employer Plan, where any
such withdrawal is likely to result in a material liability of the
Borrower or any member of the Controlled Group.
(vii) terminate, or institute proceedings to
terminate, any Plan, where such termination is likely to result in a
material liability to the Borrower or any member of the Controlled
Group;
(viii) make any amendment to any Plan with respect to
which security is required under Section 307 of ERISA; or
(ix) fail to give any and all notices and make all
disclosures and governmental filings required under ERISA or the
Code, where such failure is likely to have a Material Adverse
Effect.
6.2.12. Fiscal Year. The Borrower shall not, and shall
not permit any of its Subsidiaries to, change its fiscal year from
the 52 or 53 week period ending on the Saturday nearest to December
31 of each year.
6.2.13. Changes in Organizational Documents. The
Borrower shall not, and shall not permit any of its Subsidiaries to,
amend in any respect its certificate or articles of incorporation
(including any provisions or resolutions relating to capital stock),
by-laws, voting trust agreement, or other organizational documents
in any respect which would affect the authorized capital stock of
any Loan Party or the rights of holders of such stock without
providing at least fifteen (15) calendar days' prior written notice
to the Agent and the Lenders and, in the event such change would be
adverse to the Lenders as determined by the Agent in its sole
discretion, obtaining the prior written consent of the Required
Lenders.
6.2.14. Financial Covenants.
6.2.14.1. Minimum Net Worth. The Borrower will at
all times maintain Consolidated Net Worth of not less than the sum
of (i) $120,000,000 plus (ii) 55% of Consolidated Net Income earned
in each fiscal quarter beginning with the quarter ending July 1,
2000 (without deduction for losses) plus (iii) 100% of the Net
Proceeds received by the Borrower directly or indirectly, whether in
cash or other property, in connection with any sale of capital stock
of the Borrower (except for sales of stock (i) to employees or
former employees of the Borrower or its Subsidiaries according to
the Borrower's stock option plan in effect from time to time or
according to policies of the Borrower summarized in the documents
filed by the Borrower with the Securities and Exchange Commission
and (ii) to retail customers of the Borrower and its Subsidiaries in
the ordinary course of the Borrower's business) during the period
commencing on the Closing Date.
6.2.14.2. Leverage Ratio. The Borrower will not
permit the ratio, determined as of the end of each of its fiscal
quarters, beginning with the quarter ending July 1, 2000, of (i)
Consolidated Funded Indebtedness to (ii) Consolidated EBITDA for the
then most-recently ended four fiscal quarters to be greater than the
following ratios for the following periods of time:
For the Borrower's fiscal
quarter ended July 1, 2000 4.25 to 1.0
For the Borrower's fiscal
quarter ended September 30, 2000 4.00 to 1.0
For the Borrower's fiscal
quarter ended December 30, 2000 3.75 to 1.0
For the Borrower's 2001 fiscal year: 3.50 to 1.0
For the Borrower's 2002 fiscal year: 3.25 to 1.0
At all times following the end
of the Borrower's 2002 fiscal year: 2.75 to 1.0.
6.2.14.3. Fixed Charge Coverage Ratio. The
Borrower will not permit the ratio, determined as of the end of each
of its fiscal quarters for the then most-recently ended four fiscal
quarters, of (i) Consolidated EBITDA plus Consolidated Net Rentals
to (ii) Consolidated Interest Expense plus Consolidated Net Rentals
plus actual scheduled principal payments of Indebtedness plus income
tax expense paid or accrued, all calculated for the then most-
recently ended four fiscal quarters of the Borrower and its
Subsidiaries on a consolidated basis, to be less than the following:
From July 1, 2000 through the Borrower's
fiscal quarter ended March 30, 2002 1.5 to 1.0
For the Borrower's fiscal
quarter ended June 29, 2002 1.4 to 1.0
For the Borrower's fiscal
quarter ended September 28, 2002 1.3 to 1.0
At December 28, 2002 and
at all times following the end
of the Borrower's 2002 fiscal year 1.25 to 1.0
6.2.14.4. Capital Expenditures. The Borrower shall
not permit, and shall not permit any of its Subsidiaries, to make or
contract to make Capital Expenditures which, in the aggregate as to
the Borrower and its Subsidiaries, exceed an amount of $40,000,000
per fiscal year for the Borrower's 2000 and 2001 fiscal years or
which, in the aggregate as to the Borrower and its Subsidiaries,
exceed an amount of $45,000,000 per fiscal year at any time
thereafter, provided, that amounts in respect of permitted Capital
Expenditures which are not used during any fiscal year may be
carried over on a non-cumulative basis to the immediately succeeding
fiscal year.
6.2.15. Subordinated Indebtedness[6.21.Subordinated
Indebtedness. The Borrower shall not, and shall not permit any of
its Subsidiaries to, make any amendment or modification to any
indenture, note or other agreement evidencing or governing any
Subordinated Indebtedness (including, without limitation, the
Subordination Agreement), or directly or indirectly voluntarily
prepay, defease or in substance defease, purchase, redeem, retire or
otherwise acquire, any Subordinated Indebtedness.
6.2.16. Sale of Accounts[0.00.Xxxx of Accounts.
The Borrower shall not, and shall not permit any of its Subsidiaries
to, sell or otherwise dispose of any notes receivable or accounts
receivable, with or without recourse, except for transactions among
Loan Parties.
6.2.17. Sale and Leaseback Transactions and other
Off-Balance Sheet Liabilities[0.00.Xxxx and Leaseback Transactions
and other Off-Balance Sheet Liabilities. The Borrower shall not,
nor shall it permit any of its Subsidiaries to, enter into or suffer
to exist any (i) Sale and Leaseback Transactions involving an
aggregate amount in excess of $5,000,000 at any time outstanding
from the Closing Date until the Term Loan Termination Date or (ii)
any other transaction pursuant to which it incurs or has incurred
Off-Balance Sheet Liabilities, except for Rate Management
Obligations permitted to be incurred under the terms of this
Agreement.
6.2.18. Financial Contracts[0.00.Xxxxxxxxx
Contracts. The Borrower will not, nor will it permit any
Subsidiary to, enter into or remain liable upon any Financial
Contract, except Rate Management Transactions permitted under this
Agreement.
6.3. Reporting Requirements. During the term of this
Agreement, unless the Required Lenders shall otherwise consent in
writing, the Borrower will furnish or cause to be furnished to the
Agent and each of the Lenders:
6.3.1. Quarterly Financial Statements . As soon as
available and in any event within sixty (60) calendar days after the
end of each of the first three fiscal quarters in each fiscal year,
financial statements of the Borrower, consisting of a consolidated
and consolidating balance sheet as of the end of such fiscal quarter
and related consolidated and consolidating statements of income, and
stockholders' equity and related consolidated cash flows for the
fiscal quarter then ended and the fiscal year through that date, all
in reasonable detail and certified (subject to normal year-end audit
adjustments) by an Authorized Representative as having been prepared
in accordance with Agreement Accounting Principles, consistently
applied and subject to year end adjustments, and setting forth in
comparative form the respective financial statements for the
corresponding date and period in the previous fiscal year.
6.3.2. Annual Financial Statements. As soon as
available and in any event within one hundred and twenty (120) days
after the end of each fiscal year of the Borrower, financial
statements of the Borrower consisting of a consolidated and
consolidating balance sheet as of the end of such fiscal year, and
related consolidated and consolidating statements of income, and
stockholders' equity and related consolidated cash flows for the
fiscal year then ended, all in reasonable detail and setting forth
in comparative form the financial statements as of the end of and
for the preceding fiscal year, and certified by independent
certified public accountants of nationally recognized standing
satisfactory to the Agent. The certificate of report of accountants
shall be free of qualifications (other than any consistency
qualification that may result from a change in the method used to
prepare the financial statements as to which such accountants
concur) and shall not indicate the occurrence or existence of any
event, condition or contingency which would materially impair the
prospect of payment of performance of any covenant, agreement or
duty of any Loan Party under any of the Loan Documents.
6.3.3. Certificate of the Borrower. Concurrently with
the financial statements of the Borrower furnished to the Agent and
to the Lenders pursuant to Sections 6.3.1 and 6.3.2, a certificate
of the Borrower signed by an Authorized Representative of the
Borrower, in the form of Exhibit 6.3.3, to the effect that, except
as described pursuant to Section 6.3.4, (i) the representations and
warranties of the Borrower contained in Article V and in the other
Loan Documents are true on and as of the date of such certificate
with the same effect as though such representations and warranties
had been made on and as of such date (except representations and
warranties which expressly relate solely to an earlier date or time)
and the Loan Parties have performed and complied with all covenants
and conditions hereof, (ii) no Default or Unmatured Default exists
and is continuing on the date of such certificate (iii) containing
calculations in sufficient detail to demonstrate compliance as of
the date of such financial statements with all financial covenants
contained in Section 6.2.14 and determining the Applicable Margin
and the Applicable Fee Rate.
6.3.4. Notice of Default. Promptly after any officer
of any Loan Party has learned of the occurrence of any Default or
Unmatured Default, a certificate signed by an Authorized
Representative of such Loan Party setting forth the details of such
Default or Unmatured Default and the action which such Loan Party
proposes to take with respect thereto.
6.3.5. Notice of Litigation. Promptly after the
commencement thereof, notice of all actions, suits, proceedings or
investigations before or by any Official Body or any other Person
against any Loan Party or Subsidiary of any Loan Party which involve
a claim or series of claims in excess of $5,000,000 or which if
adversely determined would have a Material Adverse Effect.
6.3.6. Forecasts, Other Reports and Information.
Promptly upon their becoming available to the Borrower:
(i) the forecasts or projections of the Borrower, to be
supplied not later than one hundred twenty (120) days after
commencement of the fiscal year to which any of the foregoing may be
applicable,
(ii) any reports, notices or proxy statements generally
distributed by the Borrower to its stockholders on a date no later
than the date supplied to such stockholders,
(iii) regular or periodic reports, including Forms 10-
K, 10-Q and 8-K, registration statements and prospectuses, filed by
the Borrower with the Securities and Exchange Commission,
(iv) a copy of any order in any material proceeding to
which the Borrower or any of its Subsidiaries is a party issued by
any Official Body, and
(v) such other reports and information as any of the
Lenders may from time to time reasonably request. The Borrower
shall also notify the Lenders promptly of the enactment or adoption
of any law which may have a Material Adverse Effect.
Promptly upon the request of the Agent, any reports including
management letters submitted to the Borrower by independent
accountants in connection with any annual, interim or special audit.
6.3.7. Notices Regarding Plans and Benefit Arrangements.
6.3.7.1. Certain Events. Promptly upon becoming
aware of the occurrence thereof, notice (including the nature of the
event and, when known, any action taken or threatened by the
Internal Revenue Service or the PBGC with respect thereto) of:
(i) any Reportable Event, other than a merger of a
Plan into another Plan, with respect to the Borrower or any other
member of the Controlled Group (regardless of whether the obligation
to report said Reportable Event to the PBGC has been waived),
(ii) any Prohibited Transaction which could subject
the Borrower or any other member of the Controlled Group to a civil
penalty assessed pursuant to Section 502(i) of ERISA or a tax
imposed by Section 4975 of the Internal Revenue Code in connection
with any Plan, any Benefit Arrangement or any trust created
thereunder,
(iii) any assertion of material withdrawal
liability with respect to any Multiemployer Plan,
(iv) any partial or complete withdrawal from a
Multiemployer Plan by the Borrower or any other member of the
Controlled Group under Title IV of ERISA (or assertion thereof),
where such withdrawal is likely to result in material withdrawal
liability,
(v) any cessation of operations (by the Borrower or
any other member of the Controlled Group) at a facility in the
circumstances described in Section 4062(e) of ERISA,
(vii) withdrawal by the Borrower or any other
member of the Controlled Group to make a payment to a Plan required
to avoid imposition of a Lien under Section 302(f) of ERISA,
(viii) the adoption of an amendment to a Plan
requiring the provision of security to such Plan pursuant to Section
307 of ERISA, or
(ix) any change in the actuarial assumptions or
funding methods used for any Plan, where the effect of such change
is to materially increase or materially reduce the unfunded benefit
liability or obligation to make periodic contributions.
6.3.7.2. Notices of Involuntary Termination and
Annual Reports. Promptly after receipt thereof, copies of (a) all
notices received by the Borrower or any other member of the
Controlled Group of the PBGC's intent to terminate any Plan
administered or maintained by the Borrower or any member of the
Controlled Group, or to have a trustee appointed to administer any
such Plan; and (b) at the request of the Agent or any Lender each
annual report (IRS Form 5500 series) and all accompanying schedules,
the most recent actuarial reports, the most recent financial
information concerning the financial status of each Plan
administered or maintained by the Borrower or any other member of
the Controlled Group, and schedules showing the amounts contributed
to each such Plan or by or on behalf of the Borrower or any other
member of the Controlled Group in which any of their personnel
participate or from which such personnel may derive a benefit, and
each Schedule B (Actuarial Information) to the annual report filed
by the Borrower or any other member of the Controlled Group with the
Internal Revenue Service with respect to each such Plan.
6.3.7.3. Notice of Voluntary Termination. Promptly
upon the filing thereof, copies of any Form 5310, or any successor
or equivalent form to Form 5310, filed with the PBGC in connection
with the termination of any Plan.
ARTICLE VII
DEFAULTS
--------
The occurrence of any one or more of the following events shall
constitute a Default:
7.1. Any representation or warranty made or deemed made by
or on behalf of the Borrower or any of its Subsidiaries to the
Lenders or the 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
materially false on the date as of which made.
7.2. Nonpayment of principal of any Loan when due,
nonpayment of any Reimbursement Obligation within one Business Day
after the same becomes due, or nonpayment of interest upon any Loan
or of any commitment fee, LC Fee or other obligations under any of
the Loan Documents within five days after the same becomes due.
7.3. The breach by the Borrower of any of the terms or
provisions of Sections 6.1.6, 6.1.10, 6.1.11, or 6.2, or the breach
by the Borrower or any Material Subsidiary of any of the terms or
provisions of Section 6.1.1.
7.4. The breach by the 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 which is not
remedied within ten days after written notice from the Agent or any
Lender (or such longer period of time as the Agent may permit in its
sole discretion).
7.5. Failure of the Borrower or any of its Subsidiaries to
pay when due any Indebtedness in a principal amount in excess of
$1,000,000 in any individual case, or in excess of $5,000,000 in the
aggregate; or the default by the Borrower 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 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 Indebtedness to cause, such Indebtedness
to become due prior to its stated maturity; or any Indebtedness of
the Borrower 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 the Borrower or any of its Subsidiaries shall not pay, or admit
in writing its inability to pay, its debts generally as they become
due.
7.6. The Borrower or any of its Subsidiaries 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. Without the application, approval or consent of the
Borrower or any of its Subsidiaries, a receiver, trustee, examiner,
liquidator or similar official shall be appointed for the Borrower
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 Borrower or any of its Subsidiaries and such
appointment continues undischarged or such proceeding continues
undismissed or unstayed for a period of 30 consecutive days.
7.8. 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 Borrower and its
Subsidiaries which, when taken together with all other Property of
the Borrower 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. The Borrower or any of its Subsidiaries shall fail
within 30 days to pay, bond or otherwise discharge one or more (i)
judgments or orders for the payment of money in excess of $5,000,000
(or the equivalent thereof in currencies other than U.S. 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.
7.10. Any of the following occurs: (i) any Reportable
Event, other than a merger of a Plan with another Plan, which the
Agent determines in good faith constitutes grounds for the
termination of any Plan by the PBGC or the appointment of a trustee
to administer or liquidate any Plan, shall have occurred and be
continuing; (ii) proceedings shall have been instituted or other
action taken to terminate any Plan, or a termination notice shall
have been filed with respect to any Plan; (iii) a trustee shall be
appointed to administer or liquidate any Plan; (iv) the PBGC shall
give notice of its intent to institute proceedings to terminate any
Plan or Plans or to appoint a trustee to administer or liquidate any
Plan; and, in the case of the occurrence of (i), (ii), (iii) or (iv)
above, the Agent determines in good faith that the amount of the
Borrower's liability is likely to exceed 10% of its Consolidated
Tangible Assets; (v) the Borrower or any member of the Controlled
Group shall fail to make any contributions when due to a Plan or a
Multiemployer Plan; (vi) the Borrower or any other member of the
Controlled Group shall make any amendment to a Plan with respect to
which security is required under Section 307 of ERISA; (vii) the
Borrower or any other member of the Controlled Group shall withdraw
completely or partially from a Multiemployer Plan; (viii) the
Borrower or any other member of the Controlled Group shall withdraw
(or shall be deemed under Section 4062(e) of ERISA to withdraw) from
a Multiple Employer Plan; or (ix) any applicable law is adopted,
changed or interpreted by an Official Body with respect to or
otherwise affecting one or more Plans, Multiemployer Plans or
Benefit Arrangements and, with respect to any of the events
specified in (v), (vi), (vii), (viii) or (ix), the Agent determines
in good faith that any such occurrence would be reasonably likely to
materially and adversely affect the total enterprise represented by
the Borrower and the other members of the Controlled Group.
7.11. The Borrower or any of its Subsidiaries shall (i) be the
subject of any proceeding or investigation pertaining to the release
by the Borrower, 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 have a Material
Adverse Effect.
7.12. Any Change in Control shall occur.
7.13. The occurrence of any "default," as defined in any Loan
Document (other than this Agreement) or the breach of any of the
terms or provisions of any Loan Document (other than this
Agreement), which default or breach continues beyond any period of
grace therein provided, including without limitation, the occurrence
of any default under the Subordination Agreement.
7.14. Nonpayment by the Borrower or any Subsidiary of any Rate
Management Obligation within five days after the same becomes due or
the breach by the Borrower or any Subsidiary of any term, provision
or condition contained in any Rate Management Transaction.
7.15. The Guaranty shall fail to remain in full force or
effect or any action shall be taken to discontinue or to assert the
invalidity or unenforceability of the Guaranty, or any Guarantor
shall fail to comply with any of the terms or provisions of the
Guaranty, or any Guarantor shall deny that it has any further
liability under the Guaranty, or shall give notice to such effect.
7.16. Any Collateral Document shall for any reason fail to
create a valid and perfected first priority security interest in any
collateral purported to be covered thereby, except as permitted by
the terms of any Collateral Document, or any Collateral Document
shall fail to remain in full force or effect or any action shall be
taken to discontinue or to assert the invalidity or unenforceability
of any Collateral Document, or the Borrower shall fail to comply
with any of the terms or provisions of any Collateral Document.
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
the Borrower, the obligations of the Lenders to make Loans hereunder
and the obligation and power of the LC Issuer to issue Facility LCs
shall automatically terminate and the Secured Obligations shall
immediately become due and payable without any election or action on
the part of the Agent, the LC Issuer or any Lender and the Borrower
will be and become thereby unconditionally obligated, without any
further notice, act or demand, to pay to the 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 the Secured Obligations (such difference, the
"Collateral Shortfall Amount"). If any other Default occurs, the
Required Lenders (or the 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
Issuer to issue Facility LCs, or declare the Secured Obligations to
be due and payable, or both, whereupon the Secured Obligations shall
become immediately due and payable, without presentment, demand,
protest or notice of any kind, all of which the Borrower hereby
expressly waives, and (b) upon notice to the Borrower and in
addition to the continuing right to demand payment of all amounts
payable under this Agreement, make demand on the Borrower to pay,
and the Borrower will, forthwith upon such demand and without any
further notice or act, pay to the 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 Agent
determines that the Collateral Shortfall Amount at such time is
greater than zero, the Agent may make demand on the Borrower to pay,
and the Borrower will, forthwith upon such demand and without any
further notice or act, pay to the Agent the Collateral Shortfall
Amount, which funds shall be deposited in the Facility LC Collateral
Account.
(iii) The 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 Secured Obligations and any other
amounts as shall from time to time have become due and payable by
the Borrower to the Lenders or the LC Issuer under the Loan
Documents.
(iv) At any time while any Default is continuing, neither the
Borrower nor any Person claiming on behalf of or through the
Borrower shall have any right to withdraw any of the funds held in
the Facility LC Collateral Account. After all of the Secured
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 Agent to the Borrower
or paid to whomever may be legally entitled thereto at such time.
(v) If, within 30 days after acceleration of the maturity of
the Secured Obligations or termination of the obligations of the
Lenders to make Loans and the obligation and power of the LC Issuer
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
the Borrower) and before any judgment or decree for the payment of
the Secured Obligations due shall have been obtained or entered, the
Required Lenders (in their sole discretion) shall so direct, the
Agent shall, by notice to the Borrower, rescind and annul such
acceleration and/or termination.
8.2. Amendments. Subject to the provisions of this Article
VIII, the Required Lenders (or the Agent with the consent in writing
of the Required Lenders) and the Borrower 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 Borrower hereunder or waiving any
Default hereunder; provided, however, that no such supplemental
agreement shall, without the consent of all of the Lenders:
(i) Extend the final maturity of any Loan, or extend the
expiry date of any Facility LC to a date after the Revolving Loan
Termination Date, or postpone any regularly scheduled payment of
principal of any Loan 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 Obligation related thereto.
(ii) Reduce 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 amend the definitions of "Revolving Loan Pro Rata Share"
or "Pro Rata Share."
(iii) Extend the Revolving Loan Termination Date or the
Term Loan Termination Date, or reduce the amount or extend the
payment date for, the mandatory payments required under Section
2.7.2, or increase the amount of the Aggregate Revolving Loan
Commitment or of the Revolving Loan Commitment of any Lender
hereunder or the commitment to issue Facility LCs, or of the
Aggregate Term Loan Commitment or of the Term Loan Commitment of any
Lender hereunder, or permit the Borrower to assign its rights under
this Agreement.
(iv) Amend this Section 8.2.
(v) Release any guarantor of any Credit Extension or, except
as provided in the Collateral Documents, release, or agree to
subordinate the Lenders' Liens with respect to, all or substantially
all of the Collateral.
No amendment of any provision of this Agreement relating to the
Agent shall be effective without the written consent of the Agent,
and no amendment to any provision relating to the LC Issuer shall be
effective without the written consent of the LC Issuer. The Agent
may waive payment of the fee required under Section 12.3.2 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 Issuer or the 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 the
inability of the Borrower 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 the 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 Agent, the LC Issuer and the Lenders until the
Obligations have been paid in full.
ARTICLE IX
GENERAL PROVISIONS
------------------
9.1. Survival of Representations. All representations and
warranties of the Borrower contained in this Agreement shall survive
the making of the Credit Extensions herein contemplated.
9.2. Governmental Regulation. Anything contained in this
Agreement to the contrary notwithstanding, neither the LC Issuer nor
any Lender shall be obligated to extend credit to the Borrower in
violation of any limitation or prohibition provided by any
applicable law, statute or regulation.
9.3. 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.
9.4. Entire Agreement. The Loan Documents embody the entire
agreement and understanding among the Borrower, the Agent, the LC
Issuer and the Lenders and supersede all prior agreements and
understandings among the Borrower, the Agent, the LC Issuer and the
Lenders relating to the subject matter thereof other than the fee
letter described in Section 10.13.
9.5. 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 Agent is authorized to act as
such). The failure of any Lender to perform any of its obligations
hereunder shall not relieve any other 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 and 10.11 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.
9.6. Expenses; Indemnification. (i) The Borrower shall
reimburse the Agent and the Arranger for any costs, internal charges
and out-of-pocket expenses (including attorneys' fees and time
charges of attorneys for the Agent, which attorneys may be employees
of the Agent) paid or incurred by the Agent or the Arranger in
connection with the preparation, negotiation, execution, delivery,
syndication, review, amendment, modification, and administration of
the Loan Documents. The Borrower also agrees to reimburse the
Agent, the Arranger, the LC Issuer and the Lenders for any costs,
internal charges and out-of-pocket expenses (including attorneys'
fees and time charges of attorneys for the Agent, the Arranger, the
LC Issuer and the Lenders, which attorneys may be employees of the
Agent, the Arranger, the LC Issuer or the Lenders) paid or incurred
by the Agent, the Arranger, the LC Issuer or any Lender in
connection with the collection and enforcement of the Loan
Documents. Expenses being reimbursed by the Borrower under this
Section include, without limitation, costs and expenses incurred in
connection with the Reports described in the following sentence.
The Borrower acknowledges that from time to time Bank One may
prepare and may distribute to the Lenders (but shall have no
obligation or duty to prepare or to distribute to the Lenders)
certain audit reports (the "Reports") pertaining to the Borrower's
assets for internal use by Bank One from information furnished to it
by or on behalf of the Borrower, after Bank One has exercised its
rights of inspection pursuant to this Agreement.
(ii) The Borrower hereby further agrees to indemnify the Agent,
the Arranger, the LC Issuer and 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
expenses of litigation or preparation therefor whether or not the
Agent, the Arranger, the LC Issuer any Lender or any affiliate is a
party thereto) 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 Borrower
under this Section 9.6 shall survive the termination of this
Agreement.
9.7. Numbers of Documents. All statements, notices, closing
documents, and requests hereunder shall be furnished to the Agent
with sufficient counterparts so that the Agent may furnish one to
each of the Lenders.
9.8. 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.
9.9. 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.
9.10. Nonliability of Lenders. The relationship between
the Borrower on the one hand and the Lenders, the LC Issuer and the
Agent on the other hand shall be solely that of borrower and lender.
Neither the Agent, the Arranger, the LC Issuer nor any Lender shall
have any fiduciary responsibilities to the Borrower. Neither the
Agent, the Arranger, the LC Issuer nor any Lender undertakes any
responsibility to the Borrower to review or inform the Borrower of
any matter in connection with any phase of the Borrower's business
or operations. The Borrower agrees that neither the Agent, the
Arranger, the LC Issuer nor any Lender shall have liability to the
Borrower (whether sounding in tort, contract or otherwise) for
losses suffered by the Borrower 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.
Neither the Agent, the Arranger, the LC Issuer nor any Lender shall
have any liability with respect to, and the Borrower hereby waives,
releases and agrees not to xxx for, any special, indirect or
consequential damages suffered by the Borrower in connection with,
arising out of, or in any way related to the Loan Documents or the
transactions contemplated thereby.
9.11. Confidentiality. Each Lender agrees to hold any
confidential information which it may receive from the 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, accountants, and other
professional advisors to such Lender or to a Transferee, (iii) to
regulatory officials, (iv) to any Person as requested pursuant to or
as required by law, regulation, or legal process, (v) to any Person
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, and (vii)
permitted by Section 12.4.
9.12. Nonreliance . Each Lender hereby represents that it
is not relying on or looking to any margin stock (as defined in
Regulation U of the Board of Governors of the Federal Reserve
System) for the repayment of the Credit Extensions provided for
herein.
9.13. Disclosure. The Borrower and each Lender hereby
(i) acknowledge and agree that Bank One and/or its Affiliates from
time to time may hold investments in, make other loans to or have
other relationships with the Borrower and its Affiliates, and (ii)
waive any liability of Bank One or such Affiliate of Bank One to the
Borrower or any Lender, respectively, arising out of or resulting
from such investments, loans or relationships other than liabilities
arising out of the gross negligence or willful misconduct of Bank
One or its Affiliates.
ARTICLE X
THE AGENT
---------
10.1. Appointment; Nature of Relationship. Bank One,
Wisconsin is hereby appointed by each of the Lenders as its
contractual representative (herein referred to as the "Agent")
hereunder and under each other Loan Document, and each of the
Lenders irrevocably authorizes the 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 Agent agrees
to act as such contractual representative upon the express
conditions contained in this Article X. Notwithstanding the use of
the defined term "Agent," it is expressly understood and agreed that
the Agent shall not have any fiduciary responsibilities to any
Lender by reason of this Agreement or any other Loan Document and
that the 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 Agent (i) does not hereby
assume any fiduciary duties to any of the Lenders, (ii) is a
"representative" of the Lenders within the meaning of Section 9-105
of the Uniform Commercial Code and (iii) is acting as an 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
Agent on any agency theory or any other theory of liability for
breach of fiduciary duty, all of which claims each Lender hereby
waives.
10.2. Powers. The Agent shall have and may exercise such
powers under the Loan Documents as are specifically delegated to the
Agent by the terms of each thereof, together with such powers as are
reasonably incidental thereto. The Agent shall have no implied
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 Agent.
10.3. General Immunity. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable to the
Borrower, 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.
10.4. No Responsibility for Loans, Recitals, etc. Neither
the Agent nor any of its 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 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 Borrower or any guarantor of any
of the Obligations or of any of the Borrower's or any such
guarantor's respective Subsidiaries. The Agent shall have no duty
to disclose to the Lenders information that is not required to be
furnished by the Borrower to the Agent at such time, but is
voluntarily furnished by the Borrower to the Agent (either in its
capacity as Agent or in its individual capacity).
10.5. Action on Instructions of Lenders. The 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, 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 Agent shall be under no duty to take any
discretionary action permitted to be taken by it pursuant to the
provisions of this Agreement or any other Loan Document unless it
shall be requested in writing to do so by the Required Lenders. The
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.
10.6. Employment of Agents and Counsel. The Agent may
execute any of its duties as 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 Agent shall be entitled to advice of
counsel concerning the contractual arrangement between the Agent and
the Lenders and all matters pertaining to the Agent's duties
hereunder and under any other Loan Document.
10.7. Reliance on Documents; Counsel. The 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 Agent, which counsel may be
employees of the Agent.
10.8. Agent's Reimbursement and Indemnification. The
Lenders agree to reimburse and indemnify the Agent ratably in
proportion to their respective Commitments (or, if the Commitments
have been terminated, in proportion to their Commitments immediately
prior to such termination) (i) for any amounts not reimbursed by the
Borrower for which the Agent is entitled to reimbursement by the
Borrower under the Loan Documents, (ii) for any other expenses
incurred by the Agent on behalf of the Lenders, in connection with
the preparation, execution, delivery, administration and enforcement
of the Loan Documents (including, without limitation, for any
expenses incurred by the Agent in connection with any dispute
between the 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 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 Agent in connection with any dispute between
the 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 by a court of competent
jurisdiction to have resulted from the gross negligence or willful
misconduct of the Agent and (ii) any indemnification required
pursuant to Section 3.5(vii) shall, notwithstanding the provisions
of this Section 10.8, be paid by the relevant Lender in accordance
with the provisions thereof. The obligations of the Lenders under
this Section 10.8 shall survive payment of the Secured Obligations
and termination of this Agreement.
10.9. Notice of Default. The Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or
Unmatured Default hereunder unless the Agent has received written
notice from a Lender or the Borrower 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 Agent
receives such a notice, the Agent shall give prompt notice thereof
to the Lenders.
10.10. Rights as a Lender. In the event the Agent is a
Lender, the Agent shall have the same rights and powers hereunder
and under any other Loan Document with respect to its Commitment and
its Loans as any Lender and may exercise the same as though it were
not the Agent, and the term "Lender" or "Lenders" shall, at any time
when the Agent is a Lender, unless the context otherwise indicates,
include the Agent in its individual capacity. The 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 Borrower or any of its Subsidiaries in which the
Borrower or such Subsidiary is not restricted hereby from engaging
with any other Person. The Agent, in its individual capacity, is
not obligated to remain a Lender.
10.11. Lender Credit Decision. Each Lender acknowledges
that it has, independently and without reliance upon the Agent, the
Arranger or any other Lender and based on the financial statements
prepared by the Borrower 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 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.
10.12. Successor Agent . The Agent may resign at any time
by giving written notice thereof to the Lenders and the Borrower,
such resignation to be effective upon the appointment of a successor
Agent or, if no successor Agent has been appointed, forty-five days
after the retiring Agent gives notice of its intention to resign.
The Agent may be removed at any time with or without cause by
written notice received by the 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 Borrower and the
Lenders, a successor Agent. If no successor Agent shall have been
so appointed by the Required Lenders within thirty days after the
resigning Agent's giving notice of its intention to resign, then the
resigning Agent may appoint, on behalf of the Borrower and the
Lenders, a successor Agent. Notwithstanding the previous sentence,
the Agent may at any time without the consent of the Borrower or any
Lender, appoint any of its Affiliates which is a commercial bank as
a successor Agent hereunder. If the Agent has resigned or been
removed and no successor Agent has been appointed, the Lenders may
perform all the duties of the Agent hereunder and the Borrower shall
make all payments in respect of the Secured Obligations to the
applicable Lender and for all other purposes shall deal directly
with the Lenders. No successor Agent shall be deemed to be
appointed hereunder until such successor Agent has accepted the
appointment. Any such successor Agent shall be a commercial bank
having capital and retained earnings of at least $100,000,000. Upon
the acceptance of any appointment as Agent hereunder by a successor
Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the
resigning or removed Agent. Upon the effectiveness of the
resignation or removal of the Agent, the resigning or removed 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 Agent, the provisions of this Article X
shall continue in effect for the benefit of such Agent in respect of
any actions taken or omitted to be taken by it while it was acting
as the Agent hereunder and under the other Loan Documents. In the
event that there is a successor to the Agent by merger, or the Agent
assigns its duties and obligations to an Affiliate pursuant to this
Section 10.12, then the term "Prime Rate" as used in this Agreement
shall mean the prime rate, base rate or other analogous rate of the
new Agent.
10.13. Agent's Fee. The Borrower agrees to pay to the
Agent, for its own account, the fees agreed to by the Borrower and
the Agent pursuant to that certain letter agreement dated December
30, 1999 (the "Agent's Letter"), or as otherwise agreed from time to
time.
10.14. Delegation to Affiliates. The Borrower and the
Lenders agree that the 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 Agent is entitled under Articles
IX and X.
10.15. Execution of Collateral Documents. The Lenders
hereby empower and authorize the Agent to execute and deliver to the
Borrower on their behalf the Mortgages, the Pledge and Security
Agreement and all related financing statements and any financing
statements, agreements, documents or instruments as shall be
necessary or appropriate to effect the purposes of the Collateral
Documents.
10.16. Collateral Releases. The Lenders hereby empower and
authorize the Agent to execute and deliver to the Borrower on their
behalf any agreements, documents or instruments as shall be
necessary or appropriate to effect any releases of Collateral which
shall be permitted by the terms hereof or of any other Loan Document
or which shall otherwise have been approved by the Required Lenders
(or, if required by the terms of Section 8.2, all of the Lenders) in
writing.
10.17. Co-Agents, Documentation Agent, Syndication Agent, etc.
No Lender identified in this Agreement as a "co-agent,"
"Documentation Agent," "Syndication Agent" or similar title shall
have any right, power, obligation, liability, responsibility or duty
under this Agreement other than those applicable to all Lenders as
such. Without limiting the foregoing, none of such Lenders shall
have or be deemed to have a fiduciary relationship with any Lender.
Each Lender hereby makes the same acknowledgments with respect to
such Lenders as it makes with respect to the Agent in Section 10.11.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
------------------------
11.1. Setoff. In addition to, and without limitation of,
any rights of the Lenders under applicable law, if the Borrower
becomes insolvent, however evidenced, or 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
Indebtedness at any time held or owing by any Lender or any
Affiliate of any Lender to or for the credit or account of the
Borrower may be offset and applied toward the payment of the Secured
Obligations owing to such Lender, whether or not the Secured
Obligations, or any part thereof, shall then be due.
11.2. 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
portion of 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. If an amount to be setoff is to
be applied to Indebtedness of the Borrower to a Lender other than
Indebtedness comprised of Outstanding Credit Exposure of such
Lender, such amount shall be applied ratably to such other
Indebtedness and to the Indebtedness comprised of such Outstanding
Credit Exposure.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
-------------------------------------------------
12.1. Successors and Assigns. The terms and provisions of
the Loan Documents shall be binding upon and inure to the benefit of
the Borrower and the Lenders and their respective successors and
assigns, except that (i) the Borrower shall not have the right to
assign its rights or obligations under the Loan Documents and (ii)
any assignment by any Lender must be made in compliance with Section
12.3. The parties to this Agreement acknowledge that clause (ii) of
this Section 12.1 relates only to absolute assignments and does not
prohibit assignments creating security interests, including, without
limitation, 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; 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 12.3. The 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 12.3; provided, however, that the 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 issued in evidence thereof), shall be
conclusive and binding on any subsequent holder or assignee of the
rights to such Loan.
12.2. Participations.
12.2.1. 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 Borrower under this Agreement shall be
determined as if such Lender had not sold such participating
interests, and the Borrower and the Agent shall continue to deal
solely and directly with such Lender in connection with such
Lender's rights and obligations under the Loan Documents.
12.2.2. 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 forgives principal, interest, fees
or any Reimbursement Obligation or reduces the interest rate or fees
payable with respect to any such Credit Extension or Commitment,
extends the Revolving Loan Termination Date or the Term Loan
Termination Date, postpones any date fixed for any
regularly-scheduled payment of principal of or interest on any Loan
in which such Participant has an interest, or any regularly-
scheduled payment of fees on, any such Credit Extension or
Commitment, releases any guarantor of any such Credit Extension or
releases any collateral held in the Facility LC Collateral Account
(except in accordance with the terms hereof) or all or substantially
all or any other collateral, if any, securing any such Credit
Extension.
12.2.3. Benefit of Setoff. The Borrower agrees that
each Participant shall be deemed to have the right of setoff
provided in Section 11.1 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 11.1 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 11.1, 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 11.2 as if each Participant were a Lender.
12.3. Assignments.
12.3.1. 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 substantially in the
form of Exhibit 12.3.1 or in such other form as may be agreed to by
the parties thereto. The consent of the Borrower, the Agent and the
LC Issuer shall be required prior to an assignment 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 Borrower 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
Borrower and the Agent otherwise consents) be in an amount not less
than the lesser of (i) $5,000,000 or (ii) the remaining amount of
the assigning Lender's Commitment (calculated as at the date of such
assignment) or outstanding Loans (if the applicable Commitment has
been terminated).
12.3.2. Effect; Effective Date. Upon (i) delivery to
the Agent of a notice of assignment (the "Notice of Assignment"),
together with any consents required by Section 12.3.1, and (ii)
payment of a $3,500 fee to the Agent for processing such assignment
(unless such fee is waived by the Agent), such assignment shall
become effective on the effective date specified in such assignment.
The Notice of Assignment 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 Notice of
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
the Borrower, the Lenders or the Agent shall be required to release
the transferor Lender with respect to the percentage of the
Commitment and Outstanding Credit Exposure assigned to such
Purchaser. Upon the consummation of any assignment to a Purchaser
pursuant to this Section 12.3.2, the transferor Lender, the Agent
and the Borrower 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, as adjusted pursuant to such assignment.
12.4. Dissemination of Information. The Borrower
authorizes 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 Borrower and its
Subsidiaries, including without limitation any information contained
in any Reports; provided that each Transferee and prospective
Transferee agrees to be bound by Section 9.11 of this Agreement.
12.5. 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 XIII
NOTICES
-------
13.1. 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 Borrower or the Agent, at its address or facsimile number set
forth on the signature pages hereof, (y) in the case of any Lender,
at its address or facsimile number set forth below its signature
hereto 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 Agent and the Borrower in accordance with the
provisions of this Section 13.1. 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 Agent under Article II shall
not be effective until received.
13.2. Change of Address. The Borrower, the 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 XIV
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 Borrower, the Agent, the LC Issuer and the Lenders
and each party has notified the Agent by facsimile transmission or
telephone that it has taken such action.
ARTICLE XV
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
------------------------------------------------------------
15.1. 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 (WITHOUT REGARD TO
THE CONFLICT OF LAWS PROVISIONS) OF THE STATE OF WISCONSIN, BUT
GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
15.2. CONSENT TO JURISDICTION. THE BORROWER HEREBY
IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE UNITED
STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN OR ANY
CIRCUIT COURT SITTING IN MILWAUKEE, WISCONSIN IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND THE
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 AGENT, THE LC ISSUER OR
ANY LENDER TO BRING PROCEEDINGS AGAINST THE BORROWER IN THE COURTS
OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY THE BORROWER
AGAINST THE AGENT, THE LC ISSUER OR ANY LENDER OR ANY AFFILIATE OF
THE AGENT, THE 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
MILWAUKEE, WISCONSIN.
15.3. WAIVER OF JURY TRIAL. THE BORROWER, THE AGENT, THE
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.
IN WITNESS WHEREOF, the Borrower, the Lenders, the LC Issuer
and the Agent have executed this Agreement as of the date first
above written.
XXXXXX'X, INC.
By: __________________________
Title: ________________________
00000 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
Commitments:
BANK ONE, WISCONSIN
Individually and as LC Issuer and Agent
By: _____________________________
Title:____________________________
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. X'Xxxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
Revolving Loan: $34,000,000
Term Loan: $16,000,000
XXXXXX TRUST AND SAVINGS BANK
By: ________________________________
Title: ______________________________
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
Revolving Loan: $20,400,000
Term Loan: $9,600,000
NATIONAL CITY BANK
By: ________________________________
Title: _____________________________
000 X. Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
Revolving Loan: $20,400,000
Term Loan: $9,600,000
M&I XXXXXXXX & XXXXXX BANK
By: _____________________
Title: __________________
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
Revolving Loan: $13,600,000
Term Loan: $6,400,000
FIRSTAR BANK N.A.
By: ______________________________
Title: ___________________________
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
Revolving Loan: $13,600,000
Term Loan: $6,400,000
LASALLE BANK NATIONAL ASSOCIATION
By: _____________________________
Title: ____________________________
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxx Xxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
Revolving Loan: $13,600,000
Term Loan: $6,400,000
U.S. BANK NATIONAL ASSOCIATION
By: ____________________________
Title: ____________________________
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
Revolving Loan: $13,600,000
Term Loan: $6,400,000
TCF NATIONAL BANK
By: _______________________________
Title: _____________________________
000 X. Xxxxx Xxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx XxXxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
Revolving Loan: $10,200,000
Term Loan: $4,800,000
ASSOCIATED BANK MILWAUKEE
By: ______________________________
Title: _____________________________
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
Revolving Loan: $10,200,000
Term Loan: $4,800,000
MARINE BANK
By: _______________________________
Title: ______________________________
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
Revolving Loan: $10,200,000
Term Loan: $4,800,000
COMERICA BANK
By: ______________________________
Title: _____________________________
000 Xxxxxxxx Xxxxxx
PO Box 75000 Mailcode 3269
Xxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
Revolving Loan: $10,200,000
Term Loan: $4,800,000
